author: Scott J.

text:
    The Cincinnati, Hamilton and Dayton Railroad Company v. Theodore Sullivan, Treasurer, etc.
    1. The power of police regulation throughout the state, is vested in the legislature, and, in the exercise of this power, railway companies may constitutionally be required to light such portions of thoir railways as are within a city or incorporated village.
    2. The 32d chapter of the municipal code of 1869, which authorizes city and village councils, by ordinance, to require such lighting to be done by the owners of such railways, and on their failure to comply with such ordinance, authorizes the council to procure such lighting done at the expense of such owners, is not in conflict with the constitution of the state.
    3. “When, on default of the railway company, such lighting is procured to be done by the council, the expense of such lighting'may, by the council, be assessed or declared a lien upon any of the real estate of the railway company within the municipality.
    4. The liability of the railway company to pay such expense can only he enforced by suit or action, or, in the language of the constitution, “by due course of law.” It is not a tax, or an assessment, in the nature of a tax for Jocal improvements, and can not therefor bo summarily placed upon the county duplicate and collected as a tax or assessment proper.
    5. The mode of collecting- such charge or enforcing the lien thereof, prescribed by the last seetion of said chapter 32, is by suit in the name of the municipal corporation, in a court of competent jurisdiction, as pointed out in the subsequent sections 545 to 553, inclusive.
    Error, reserved in the District Court of Miami county.

      This cause came into the District Court of Miami county, by appeal from the court of common pleas, in which the action -was originally brought by plaintiff, seek-to enjoin the defendant, as treasurer of Miami county, from collecting a certain alleged assessment of $411, which had been placed on the tax duplicate of the county for collection, at the instance and for the benefit of the incorporated village of Troy in said county. The facts upon which the case was submitted to the district court, appear from the pleadings, and an agreed statement of facts, to be substantially as follows:
    It is agreed that Clay street in said village is occupied for its entire length by the main tracks of plaintiff’s road, and for'the greater part of its length by a sidetrack additional; that its passenger depot is on the southwest corner of Clay andMain streets, where is one lamp-post, and that its freight depot is a little above the other, and upon the opposite side of Olay street, and that the corner opposite the passenger depot, at the intersection of Clay and Main streets, is occupied by a (large) grocery store and saloon; that the property adjoining the intersection of Olay and "Water streets, where there is another lamp-post, is occupied b^ a liquor, ware, and sale-room (wholesale), while above it, on the same side of Clay street, is a distillery, and that the properties respectively adjoining the intersections of Olay and Eranklin and Clay and Canal streets, are occupied as private residences, and that no part of said, street (Clay), or the property adjoining it, is occupied or used by the railroad company except as above stated; that said Olay street is used by the general public (as a common and public street and highway), so far as it can he done consistently with the superior right of the railroad company to use the same for the passage of trains and the temporary obstruction caused thereby, and in the transaction of the ordinary and usual railroad business connected therewith.
    On the 14th day of September, 1869, the council of the village of Troy passed and duly published the following ordinance :

      “An ordinance to provide for the lighting of the track of the Dayton .and Michigan Railway, within the corporate limits of the incorporated village of Troy, Ohio.
    “ Sec. 1. Be it ordained by the council of the incorporated village of Troy, that the Dayton and Michigan Railway Company shall be and are hereby required to light the track of said railroad within the corporate limits of said incorporated village of Troy.
    “ Sec. 2. Said railroad company shall be required to light their track with gas, and for this purpose shall be required to ereo.t, upon either corner of the junction of Clay street (upon which said track is situated) with Water, Main, Franklin, and Canal streets, gas-posts of the ordinary size, together with all necessary fixtures therefor.
    “Sec. 3. The number of hours said gas-lamps shall be required to be lighted shall be the same as is now or may-hereafter be required to be lighted by the incorporated village of other gas-lamps within its limits and under its control.
    “ Sec. 4. Should the owner or owners of said Dayton and Michigau Railroad track neglect or fail to light said track in conformity with the provisions of this ordinance, within tweuty days after the notice thereof, such lightiug of said track'shall be done by said incorporated village, at the expense of the owner or owners of said railway.”
    It is admitted that notice was given to the railroad company of the passage of the ordinance of September 14, 1869, and which it is agreed is the only one now in controversy so far as the order to light the street, erect lampposts, etc., is concerned; but it is agreed that under an arrangement between the mayor of Troy and the then acting president of the plaintiff, the cost of the erection of the said lamp-posts, and the expense of lightiug the same, was regularly paid by the plaintiff' from the time of the passage of a prior ordinance in 1866 to that of the passage of the ordinance of 1869, now in controversy.
    That plaintiff refused to comply with said ordinance, and ever since has and still does so neglect and refuse to comply.

      On the 22(1 day of April 1873, the village council duly passed and published the following ordinance—
    “ Requiring the Cincinnati, Hamilton and Dayton Railroad Company, as lessee of the Dayton and Michigan Railroad, and the Dayton and Michigan Railroad to pay for lighting the track of the said Dayton and Michigan Railroad.
    “Sec. 1. Beit ordained by the town council of the incorporated village of Troy, that there be and is hereby assessed against the Cincinnati, Hamilton and Dayton Railroad Company, as lessee of the Dayton and Michigan Railroad, and against the Dayton and Michigan Railroad, the sum of four hundred and eleven dollars as the amount duo the village of Troy from said railroad company, for lighting the track of the Dayton and Michigan Railroad through said village, from the first day of May, 1869, to the 1st day of April, 1873.
    “ Sec. 2. That the sum of four hundred and eleven dollars be and is hereby assessed against the east side of lot number fifty-one (51), west side of lots numbered ninety-one (91), ninety-eight (98), ninety (90), and ninety-nine (99), belonging to the Dayton and Michigan Railroad, iti said village of Troy, and that the same shall be a lien on said lots and parts of lots or parcels of ground, and placed upon the tax duplicate and collected as other taxes, or by action at law, or in any other manner council may hereafter provide.”
    It is agreed that in May, 1873, demand was made of the railroad company for the amount of the gas bill (8411) assessed against it under the ordinance of Ap.ril'22,1873, and payment thereof was refused, and that payment of the gas bills from May, 1869, up to the passage of said ordinance, was often requested and refused.
    Afterward, on the 13th day of May, 1873, the village council adopted and duly passed the following resolution :
    “Resolved, That the corporation clerk be and is hereby instructed to certify the gross amount assessed at last council meeting against the property of the Dayton and Michigan Railroad Company to the auditor of Miami county, to be placed upon the June tax duplicate for collection.”
    In pursuance of this resolution, the said alleged assessment of $411 was, about the 15th day of May, 1873, certified to the county auditor, and entered on the tax duplicate for collection, and the same was delivered to the defendant, the treasurer of the county, for collection as other taxes, upon the June duplicate for 1873.
    Plaintiff thereupon, on the 9th of June, 1873, filed its petition praying for an injunction, etc, and the case having been brought into the district court by appeal, was by that court reserved for the decision of the supreme court.

      James Murray, for plaintiff.

      A. R. Byrhett and H. H. Williams, for defendant.
   Scott J.

Counsel for plaintiff claims that the ordinance of September 14, 1869, whereby the council of the incorporated village of Troy assumed to impose on the plaintiff an obligation to light the track of its railway, passing along Clay street, within the corporate limits of the village, is wholly unauthorized and invalid. But if authority to pass such an ordinance could be conferred by the legislature on the council of any city or incorporated village of the state, such authority was clearly given by the 32d chapter of the municipal code, of May 7, 1869 (66 Ohio L. 220, 221). So far as we can discover, the ordinance strictly follows and in no way transcends the powers conferred.

But it is claimed that the ordinances which this chapter purports to authorize, are in conflict with the constitution of the state, and cannot be maintained, either as the imposition of a tax (which the constitution requires to be levied by a uniform rule upon all taxable property), or as an assessment, such as that instrument authorizes. Counsel defines the “assessment” known to and recognized by our constitution and laws, as “local impositions upon real estate for improvements, directly beneficial to it, and in proportion to the benefits conferred.” And he refers to the case of Hill v. Higdon, 5 Ohio St. 247, where the court (per C. J. Ranney), speaking of assessments, says: “ The popular as well as legal signification of this term, has always indicated those special and local impositions upon property in the immediate vicinity of an improved street, which were necessary to pay for the improvement, and laid with reference to the special benefit which such property derived from the expenditure of the money.” And counsel argues with much force, that the imposition upon the plaintiff of the whole burden of lighting the track of its railway within the limits of a city or village, which inures as much, or more to the benefit of others than of itself can not he justified as an assessment, within the meaning of the constitution.

From these views, we are not disposed to dissent; nor are they controverted by counsel for defendant.

On the contrary, they claim that' the ordinance in question, and the statute which authorizes it are valid, only because they come within, and are the exercise of, the legislative power “to establish police regulations throughout the state; ” and they say that the sole object of the law “ is the protection of lives and property as well of passengers as of persons not on the cars, from the danger incident to the running of powerful engines of destruction through the streets of our thickly populated towns and cities during the hours of darkness.” They say that the law in question is of the same nature, and is as unquestionably valid as many other statutes which have been uniformly upheld as being within the proper province of police regulations. Such, for example, are the statutes requiring railroad companies “to fence their tracks; to huild cattle-guards; to whistle at road-crossings; to stop at railroad-crossings; to keep flagmen at street-crossings; to provide spark-arresters for engines; to regulate rate of speed through towns and cities; to keep head-lights of certain Reflective power qpon engine ; to place bell and whistle upon engines; to provide bridge between cars; to provide certain kinds of heating and lighting apparatus for ears;.to keep on hand certain means of escape in case of collision, fire, etc., and many others in the various states, which the courts have sustained.”

Wo think these views of counsel for defendant in error are undoubtedly correct. The legislation in question was but the exercise of the police power of the state, which is vested in the legislature.

“This police power of the state,” says C. J. Redfield, in Thorpe v. Rutland and Burlington R. R. Co., 27 Ver. 149, “ extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the state. According to the maxim, Sic utere tuo ut alicnum non Iced,as, which being of universal application, it must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others. . . . By this general police powér of the state, persons and property are subjected to all kinds of restraint and burdens, in order to secure the general comfort, health, and prosperity of the state — of the perfect right of the legislature to do which, no question ever was, or, upon acknowledged general principles, ever can, be made, so far as natural persons are concerned.”

And though the plaintiff here is a corporation, yet as it was incorporated under a general law, which, by its terms, is subject to amendment, modifications, or repeal, we think it can claim no exemption from the power of police regulations, to which natural persons are subject in the use of their property.

In our system of government, the power to establish police regulations has been left with the state governments, and may be exercised by their legislatures, according to their judgment and discretion, in any manner not inconsistent with, or repugnant to, the federal or respective state constitutions. Cooley on Constitutional Limitations, 573, et seq. And we are not aware of any constitutional provision with which the police regulation in question conflicts.

Regarded, therefore, as a police regulation not in conflict with the constitution, we think it clear that all questions as to the expediency, necessity, or justice of the enactment which subjects railroad companies to the burden of lighting their roads within the corporate‘limits of cities and villages through which they pass, must be determined by legislative, and not by judicial discretion. Cooley’s Con. Dim. 168. We are, therefore, of opinion that we are not authorized to declare the ordinance here drawn in question to be invalid, as an exercise of the police power conferred by the legislature on a municipality. And if such a duty can constitutionally be imposed on a railroad company, its performance may be secured by necessary sanctions. And, certainly, no milder sanction could be effective to secure the performance of the duty imposed, than that which authorized the performance of the duty required, by the municipality, at the expense of the delinquent railroad company. We see no reason, therefore, to doubt the validity of the legislation which authorized village or city municipalities to light the tracks of railroads within their limits, at the expense of the owners of such railroads, when they should neglect or refuse to perform the duty thus lawfully imposed upon them; and, by ordinance, to declare such expense to be a lieu upon any or all of the real estate of such delinquent railway company within the limits of the municipality. The declaring of such a lien is a remedial measure, resting in the discretion of the legislature, and to be limited only by constitutional inhibition.

But in this case, the village of Troy, by the ordinance of April 22, 1873, not only assessed the sum of $411 upon the plaintiff’s real estate within the village, as the “ amount due the village of Troy from said railroad company, for lighting its track through said village,” for a specified period of time, and declared said sum to be a lien upon said real estate, but farther declared that said sum should be “ placed upon the tax duplicate and collected as other taxes, or by action at law, or in any other manner council may hereafter provide.” And the village council subse•quently, on the 13th of May, by resolution, instructed the corporation clerk to certify the amount so assessed to the auditor of the county, to be placed upon the tax duplicate for collection. "We think this action of the council, by which it assumed to convert the amount which it alleged to be due to the village, as the expense of lighting the plaintiff’s railway through the same,'into 'a tax, or an assessment in the nature of a local tax, was unauthorized. If the village had, in pursuance of the statute, performed a duty primarily imposed upon the plaintiff, it had undoubtedly a right of action to recover the amount of the expense thereby necessarily incurred. But if this duty was imposed, not in the exercise of the power of taxation, or assessment in the nature of local taxation, the cost of its performance by the village on behalf, or at the expense of) the plaintiff, could not, by the. village council, be converted into a tax or assessment proper, and, as such, be placed on the county tax duplicate for collection as “other taxes.” The cost of lighting the railway was a claim or demand which the village corporation might be authorized to enforce (in the language of the constitution) “ by due course of law,” and not otherwise. Bill of Rights, sec. 16. “Due course of law” implies and requires that the parties litigant shall each have a day in court. The village of Troy, in this case, claimed to have a right to demand and recover from the plaintiff here the sum of $411, for services rendered, which were properly chai’geable to the plaintiff. Upon all- questions touching the validity of this charge, the regularity of the proceedings by which it was imposed, and its proper amount, the plaintiff had a right) under the constitution of the state, to a judicial trial.

That a statute purporting to authorize pecuniary claims, whether between natural persons or corporations, and which are not in the nature of taxes, general or local, to be placed on the tax duplicate, and collected as taxes, without a judicial trial, would be subversive of constitutional rights, and, therefore, wholly invalid, is too clear to admit of argument.

And it is by no means apparent that the legislature intended any such unconstitutional purpose in the enactment under consideration. It is true that section 433 of the municipal code provides that “ the council may direct the manner in which the expense of such lighting shall be assessed ; and when assessed, the amount shall be due and payable, and shall be a lien on . . . the real estate of the railway company.” By this section it was, doubtless, intended to give the village council power to declare the expense of lighting the railroad track a lien upon all, or any part of the railway company’s real estate within its jurisdiction. But, by designating the exercise of this power as an “ assessment,” we are not to suppose that the legislature attempted to convert into an actual tax or local assessment a charge not imposed in «the exercise of the, power of taxation or assessment. A mere name could have no such magic power.

The manner in which the expense of such lighting may be collected, or the lien thus authorized be enforced, is prescribed by the following section (434): “ Such charge may be collected, or the lien enforced, in the manner pointed out in the chapter providing for the assessment of damages and expenses for making public improvements.” Turning to the chapter referred to, we find that it provides, in sections 545 to 553 inclusive, that the owners of property upon which special assessments have been made shall be personally liable for the amount of the assessments, which may be recovered by a suit against them in any court of competent jurisdiction, in the name of the corporation. It is also provided that the lien upon real estate may be enforced in any court having general jurisdiction, in the name of the corporation, and that the court of common pleas shall have jurisdiction for that purpose, though the amount involved be less than that to which its jurisdiction is limited in other cases.

The collection of a charge, or the enforcement of a lien, in this manner, whatever might be the ground of the claim, would be “by due course of law,” because it would afford to all parties, a judicial trial, and a full opportunity of being heard, and' would, therefore, in that respect, not be open to objection on the ground of unconstitutionality. And this, we have no doubt, is the mode of collection to which section 484 was intended to refer. But immediately following the sections in chapter 48, which give this remedy, comes section 554, which provides as follows: “ The council may order the clei’k or other proper officer of the corporation to certify under his official seal any unpaid assessment or tax to the auditor of the county in which the corporation is situated, and the amount of such assessment or tax so. •certified shall be placed upon the grand tax duplicate of the county by the county auditor, and shall, with ten per cent, penalty, to cover'the interest and expense of collection, be collected with, and in the same manner as, state and county taxes, and credited to the corporation.”

There is no doubt that the legislature might authorize local taxes and assessments proper, imposed in the due exercise of the power of taxation or assessment, to be thus collected as other taxes. But, as we have seen, the liability of the railway company to pay the expense incurred in lighting its track did not arise from the exercise of any such power. It was a statutory liability, arising from its failure to comply with a police regulation, and, like other liabilities of a similar character, could only be enforced by action. Its essential nature could not be changed by legislative enactment. Nor do we suppose the legislature intended anything of the kind. We think that section 434 adopts, for the collection of a charge or the enforcement •of a lien, in a case like the present, the mode prescribed and subsequently pointed out in sections 545 to 553.

It follows that the council of the village of Troy had no power to place its claim or charge against the plaintiff, which was wholly unliquidated, except by its own ex parte finding, on the county duplicate for collection, and the defendant, as treasurer of the county, has no legal right to •collect the same, as a tax or otherwise.

Judgment for plaintiff.

Johnson, J., did not sit in this case.


source: Caselaw Access Project

author: Day, Chief Judge.

license: Public Domain

text:
    Evans v. Reynolds et al.
    1. Judicial notice can not be taken, on the trial of a case, of the statutes of a foreign country. When relied on, they must be proved by competent evidence, like any other fact material to the case. Nor can they be regarded by a reviewing court, when not made part of the record of the case sought to be reviewed.
    2. A marriage, solemnized in due form, is presumed to be lawful until some enactment which annuls it is produced and proved by those who deny its validity.
    3. A judgment will not be reversed on error for the erroneous admission of evidence, where it appears from the record that the fact which the evidence tended to prove was admitted by the party seeking the reversal, and that the evidence was, therefore, in no way prejudicial to him.
    4. Where depositions were sealed up and indorsed with the title of the cause, the name of the officer taking the same; and his certificate that they were by him addressed and transmitted to the clerk of the court where the cause was pending; and the depositions, so sealed up and indorsed, were inclosed in another envelope, which was properly addressed to such clerk, but the outer envelope contained no other indorsement: Held, to be a substantial compliance with section 347 of the code.
    Error to the District Court of Mahoning county.
    The facts are sufficiently stated in the opinion of the ■court.

      D. M. Wilson, for plaintiff in error.

      George M. Tuttle, for defendants in error.
   Day, Chief Judge.

The original action was brought in the Court of Common Pleas of Mahoning county, by Noah Reynolds and others against Margaret Evans, to recover possession of two lots of land. Both parties claimed by descent from Morgan Reynolds, who died seized of the laud in fee simple. Morgan Reynolds died without issue. The plaintiffs in the action claimed to be his next of kin. The defendant claimed to be his wife. If she was his lawful wife, it is admitted that, under the statute of descents, she is entitled, to the land. That she was married to Reynolds is not disputed. But the plaintiffs claimed the marriage to he void, for the reason that, when she was married to Reynolds, she had a living husband by a former marriage. Nor did the defendant deny that she had been previously married, nor that her husband by such marriage-was living at the time of her marriage with Reynolds. But she claimed that, by the statutory law of Great Britain where such former marriage was solemnized, the marriage-was void. The real question, therefore, to be determined, was whether the former marriage of the defendant was-void.

On the trial, a printed volume of the statutes of Great Britain, containing an act relating to marriage, was given in evidence; and the defendant gave evidence, from which, it was claimed that, under that act, the marriage of the defendant in Great Britain was void.

The court rendered judgment against the defendant. She moved for a new trial, and the motion was overruled. To the overruling of the motion for a new trial the defendant excepted, and took a bill of exceptions purporting to set out all the evidence. As to the British statute relied on, the bill of exceptions merely states as follows : “ that the plaintiffs gave in evidence chapter 76 of the statutes of the Parliament of Great Britain, passed in the fourth year of the reign of George IV, relating to marriages, contained in a printed volume of statutes purporting to have been published by the authority of Great Britain.” But a copy of the act is not made part of the bill of exceptions, though what purports to be a copy is furnished to us.

We can not take judicial notice of the statutes of a foreign country; nor could the court below on the trial of the case. Foreign statutes, when relied on by a party, must be proved by competent evidence, like any other fact material to the case. They can not, therefore, be regarded by a reviewing court, unless they are made part of the record of the case to be reviewed. This was not done in the case before us. We can not, therefore, look to the act, it-■being outside of the record, to determine whether or not the court below erred in holding that it did not invalidate the marriage in question.

The record clearly shows that the defendant was married in Wales, to one James Williams, with whom she lived, as her husband, for a number of years, and that he was living at the time she married Morgan Reynolds, the ■ decedent.. She was, therefore, incompetent to contract marriage at the time she married Reynolds, unless her former marriage was void. But that marriage must be pre■sumed to be lawful till some enactment which annuls it is produced and proved by those who deny its lawfulness. Carmichael v. The State, 12 Ohio St. 553. The record fails to show that the defendant’s former marriage was unlawful. We can not, therefore, say that the court below erred in holding that her marriage to Reynolds was void.

It is claimed that the court of common pleas erred in ■overruling an exception by the defendant below to certain -depositions taken by the plaintiff in Wales, on the ground that the package containing the depositions was not properly addressed to the clerk of the court.

The 347th'section of the code provides that depositions taken pursuant to the code, “ shall be sealed up and indorsed with the title of the cause and the name of the officer taking the same, and by him addressed and transmitted to the clerk of the court where the cause or proceeding is-pending.”

Every requirement of this section was fully complied •with. The defect complained of was, that the address to the clerk was on an outer sealed envelope, which inclosed .another sealed envelope inclosing the depositions.

The address to the clerk was on the outer envelope only; but the inner envelope contained all the requisite indorsements, except the address to the clerk. This was a substantial compliance with the statute. The depositions were ■sealed up, indorsed, addressed, and transmitted to the clerk. 'This was all that was required by either the letter or spirit of the statute. The depositions were duly received by the' proper clerk, with whom they remained under seal, until they were opened by him, at the request of the defendant’s attorney, as authorized by law. The purposes of the statute could have been no more effectually accomplished, had the address to the clerk and requisite indorsements all been on the same envelope.

On the trial the defendant objected to the giving of these depositions in evidence, so far as they tended to prove the marriage of the defendant to James Williams, But the court permitted them to be read. Though we are not satisfied that either of them are inadmissible for the purpose of proving the marriage in question, we do not deem it necessary to determine whether they were or not;. for it appears from the record, that, on the trial, the defendant admitted that she was married to James Wiliams, and therefore she was not prejudiced by the depositions. The controversy turned, not upon the fact of the mariage, but upon the validity of the marriage. The admission of this evidence, then, so far as it tended to prove the marriage admitted by the defendant, which was the whole extent of the exception, not being to the prejudice of the plaintiff in error, is not a sufficient ground for a reversal of the judgment.

Nor is there any foundation in fact, if there could be one in law, for the point made for the plaintiff in error, based on her long separation from her husband, James Williams, and want of knowledge in respect to him, when she married Morgan Reynolds, the decedent. The evidence skoivs that she left Williams in Wales, and came to' America with another man; that Williams has ever resided in the neighborhood where they were married and lived, and that she knew, or had the means of knowing,, that he was living when she married Morgan Reynolds.

Judgment affirmed.


author: Ashburn, J. Johnson, J.

text:
    Grepel v. The State of Ohio.
    1. By section 1 of the act of April 5, 1866 (S. & S. 748), it is made unlawful for any person to furnish intoxicating liquor to a minor, knowing him to be such, with intent that the minor shall drink the intoxicating liquor, unless given, or ordered to be given, by a physician in the regular line of his practice.
    2. On the trial, under an indictment charging the defendant with furnishing spirituous liquor to a minor to be drank by such minor, knowing him to be a minor, a written order from the father of the minor to the defendant directing him to sell beer to his minor son until forbidden by him, is not competent testimony for the defense.
    3. Where the transaction amounts to a sale of intoxicating liquor not to be . drank by the minor, and the indictment is under the act of May 1,1854, for a sale to a minor, such written order would be competent testimony for the defense.
    Error to tbe Court of Common Pleas of Lorain county.
    The facts sufficiently appear in the opinion.

      J. M. Hord, for plaintiff in error.

      George P. Metcalf, prosecuting attorney, for the state.
   Ashburn, J.

At the May term of the Lorain county Court of Common Pleas, 1874, Julius Grepel was indicted. The offense charged was furnishing intoxicatiug liquors to one James Steve], a minor, to be drank by him, Grepel at the time knowing James Stevelto be a minor, and that the intoxicating liquors so furnished by Grepel to James was not given by a physician in the regular line of his practice.

At the trial, the chai’ges of fact in the indictment were fully sustained by the proofs. As a justification the defendant, on his part, offered to give in testimony a writing purporting to be the consent of one Jacob Stevel, the father of the minor, James, auihorizing defendant to sell beer to his sons. The state objected to the writing going in as evidence for any purpose. The objection being sustained, defendant excepted.

On his conviction, defendant made a motion for a new trial, and assigned, as a chief reason therefor, that the court had erred in ruling out the written permission of Jacob Stevel to defendant to sell beer to his sous, of whom James was one. On the overruling of his motion for a new trial, defendant took a bill of exceptions, in which, among other things, is a copy of the rejected paper. It was written in German in the original, but a copy, as translated, is found in the bill of exceptions, and reads thus:

“ Elyria, June 28,1873.

Friend Loui Geipel $ Co. — I give you the privilege to ■sell beer to my sons at any time they wish for, until I forbid it. Respectfully yours,

“Jacob Stevel.”

The refusal of the court to allow this paper to go in evidence to the jury, is the only question argued by counsel, and the only one we will consider.

The indictment charges the defendant with a violation of one of the provisions of section 1 of the act of 1866 (S. & S. 748), which is supplementary to the general liquor law of May 1, 1854.

So much of the section as defendant is charged with violating, and material here, is as follows: “ That it shall be unlawful for any person or persons . . . to buy for, or furnish to, any minor, to be drank by such minor, any intoxicating liquors whatsoever, unless given by a physician in the regular line of his practice.”

Under this provision, the offense consists, chiefly, of two elements. — 1. Furnishing intoxicating liquor to a minor; 2. Furnishing it with the intent that it shall be drank by the minor. The law prohibits all persons from furnishing intoxicating liquors to minors, to be drank by them, with the single exception, that it may be given to the minor by a physician, as medicine, in the due course of his practice.

Section 2 of the act of May 1, 1854, provides: “ That it shall be unlawful for any person or persons, by agent or -otherwise, to sell intoxicating liquors to minors, unless upon the written order of their parents, guardian, or family physician.” S. & 0. 1481.

Under this section, the vendor of intoxicating liquors, holding a written order from the persons named in the ■statute, may sell intoxicating liquors to the minor child, ward, or patient, without incurring the penalties provided for a violation of the section. But no order, verbal or written, will exempt that person, who boys for or furnishes to a minor, knowing him to be such, intoxicating liquors .to be drank by the minor, from the penalties of the act of 1866. A physician may furnish it to a minor in the regular line of his practice, and no other person is authorized to do so.

The act of 1854 prohibits a sale of intoxicating liquors to a minor, unless upon the order of his parents, guardian, or family physician. The act of 1866 reaches further, and prohibits all persons whomsoever to buy for or furnish intoxicating liquors to a minor, to be drank by him, unless given to him, as medicine, by a physician in the regular line of his practice. The conditions that will excuse and exhonorate the vendor of intoxicating liquors, under the former statute, will not avail one who furnishes it in violation of the latter.

Plaintiff in error claims that the act of 1866 should be read as part of, and in connection with, section 2 of the act ■of 1854. We do not think so. They define distinct offenses, and, while providing penalties in kind, the penalties differ materially in degree.

The penalty provided for a violation of the provisions of section 2 of the act of 1854, is “ shall forfeit and pay a fine of not less than five nor more than fifty dollars, or be imprisoned in the jail of the county for not less than ten nor more than thirty days, or both of them, at the discretion of the court.” While the penalty provided for a violation of ■section 1 of the act of 1866 is, to “ forfeit and pay a fine of nob less than ten nor more than one hundred dollars, or be imprisoned in the jail of the county for not less than ten nor more than thirty days, or both of them, at the discretion of" the court.” This grading of the penalty, alone, affords sufficient reason why section 1 of the act of 1866 can not be read with, and treated as part of, section 2 of the act of 1854.

As the acts provide penalties for distinct offenses, each must be construed and applied as if the other had never been enacted.

The written order of Jacob Stevel to sell beer to his sons,, would probably protect defendant, if indicted for'unlawfully selling intoxicating liquor to his minor son; and, in such case, would have been competent testimony. This indictment, however, does not charge, nor the proven facts tend to show, an unlawful sale, but charges the defendant with furnishing intoxicating liquor to a minor, to be drank by the minor, defendant knowing him to be such, and was not given to him by a physician in the regular line of his practice.

Therefore the written order, proposed to be offered in evidence by defendant, could afford him no protection; was not competent testimony, and was properly excluded from the jury.

Judgment of the court of common pleas affirmed, and. case remanded to that court for execution.

Johnson, J.

I concur with the judgment on the ground that the bill of exceptions does not show that the transaction amounted to a sale of liquor’, contrary to the act 1854. If it did, then the written order of the father rendered the sale lawful, and was admissible evidence. The act of 1866 intends to punish the act of furnishing liquor to a minor, not amounting to sale. If it does amount to a sale, it is-covered by the act of 1854, and is not an offense under the act of 1866.

These two statutes provide for different acts, and an innocent sale, under the act of 1854, can not be punished under the act of 1866, as an unlawful furnishing of liquor. The prosecuting attorney can not, by his election, convert-a lawful sale into an unlawful furnishing.


author: Johnson, J.

text:
    Roberts v. The State.
    An indictment under tbe seventh section of “ an act for tbe prevention of gaming” (1 S. & C. 676), which charges, that the defendant “did unlawfully play at a certain game called ‘ poker,’ for a large sum of money, to wit, for the sum of two dollars, by means of a certain gaming device, to wit, a pack of cards;” is sufficient, without stating the name or names of the persons with whom he played. Davis v. The State, 7 Ohio (pt. 1), 204, and Buck v The State, 1 Ohio St. 61, distinguished.
    Error to the Common Pleas Court of Morgan county.

      H. L. Jones and E. M. Kennedy, for plaintiff in error:
    The indictment did not state the names of the parties with whom the plaintiff in error played. "We claim that the indictment, to be good, must either state the names of the parties with whom the accused played, or recite the fact that the name of such party or parties is to the grand jurors unknown. See 2 Bishop on Crim. Proced. § 447; 1 Bishop on Crim. Proced. §§ 297-303; Davis v. Ohio, 7 Ohio, 204; Buck v. Ohio, 1 Ohio St. 61; Butler v. The State, 5 Blackf. 280. See, also, State v. Irvin, 5 Blackf. 343.
   Johnson, J.

The plaintiff in error was indicted, convicted, and sentenced under section 7 of “an act for the prevention of gaming.” 1 S. & C. 664.

That section provides: “ That if any person shall play at any game whatsoever, for any sum of money, or other property of any value, . . . every such person shall,” etc., “ on conviction thereof, be fined,” etc. This indictment charges (omitting formal parts), that-the plaintiff in error “ did unlawfully play at a certain game called ‘ poker,’ for a large sum of money, to wit, for the sum of two dollars, by means of a certain gaming device, to wit, a pack of cards,” etc.

A motion to quash, on the ground that the indictment was defective, in not stating the names of the person or persons with whom the game was played, was overruled, .and an exception was taken.

The same question was then raised by demurrer, and again during the trial.

We have already had occasion to consider the question here involved, Carper v. The State, 27 Ohio St. 272. Although that case was determined chiefly on other grounds, yet what was there said touching the sufficiency of such an indictment is now re-affirmed. Numerous authorities may be cited in support of this conclusion. The State v. Prescott, 83 N. H. 212; Coggins v. The State, 7 Porter (Ala.), 263; Huffman’s case, 6 Rand. 685; McGuffey v. The State, 4 Texas, 156; The State v. Ake, 9 Texas, 332; Haran v. The State, 24 Texas, 161; The State v. McBride, 8 Humphreys, 66; Hulsted v. Com., 5 Leigh, 724.

Some of these cases, as well as the cases cited by the plaintiffs in error, turn upon the wording of the statutes of the different states.

On this point it has been well said, the decisions in the ■different states are, by no means, harmonious, nor do they all proceed upon just principles. 2 Bishop’s Crim. Proced. § 497.

Counsel rely on Davis v. The State, 7 Ohio (pt. 1), 204, and Buck v. The State, 1 Ohio St. 61.

In Davis v. The State, it was held, that to constitute a good indictment, under the ninth section of this statute, for suffering gaming by others, in a house or building in possession of the defendant, it must state the names of the persons who were suffered to play.

In Buck v. The State, the same rule was applied to the first section of the act of 1846, for permitting gambling in defendant’s house or building, and Davis v. The State was followed.

To constitute an indictable offense, under either of these statutes, two different acts must be charged and proved:

1. That some third parties were guilty of violating the provisions against gambling.

2. That the party charged was guilty of suffering or permitting such unlawful act in his building named.

These two essential elements were involved in the offenses charged in Davis v. The State, and in Buck v. The State. Good pleading would therefore require that in such cases the indictment should advise the accused of the names of the-persons whom lie suffered or permitted to gamble on his premises, in order that a completed offense be charged.

Under the 7th section, the offense consists of the single act of playing with a gaming device for money. This act is a completed offense.

This indictment contains a plain and unmistakeable-charge that defendant violated this section. It is couched in the words of this statute. No substantial right of the-accused is prejudiced. The indictment is in the form in-common use (Warren’s Grim. Law, 630), and clearly describes the act constituting the offense.

Butler v. The State, 5 Blackford, 280, and The State v. Irvin, 5 Blackford, 343, relied on by plaintiffs, rest upon the authority of Davis v. The State, which we have shown is under a different section of our statute.

Judgment affirmed.


author: Wright, J.

text:
    Diebold v. Powell et al.
    1. Whether or not the continuance of a cause shall be granted or refused, is a matter of judical discretion, and error can not be predicated of the-action of the court in that behalf, unless in case of an abuse of that discretion.
    2. P. sued D. for merchandise, claiming the contract to be that the merchandise was deliverable on the cars at K., the beginning of the railroad route while D. claimed it was deliverable at M., the end of the railroad route. D. having received and paid for three car loads, denied having received any more. In this state of the case it is competent for D. to show that only six car loads in all had been shipped to him from K. to M. during the time, and that three of the six were shipped by a party other thanP..
    Error to tbe District Court of Marion county.

      Powell & Bro. brought suit in the court below to recover of Diebold, the sum of $805, for 23,000 feet of walnut lumber sold and delivered in the cars at Richwood, Union county, Ohio, prior to 17th of November, 1870. The payment of $500 on account is admitted, and judgment asked for the balance, $305, with interest from November 17,1870.
    The answer denies the purchase of 23,000 feet of lumber, and defendant avers that on or about 17th November, 1870, he bought of plaintiffs, 15,000 feet of lumber at $35 per M., to bo delivered on the cars at Marion, Marion county, Ohio, free of charge to him ; that the plaintiffs failed to do as they had agreed, only furnishing a less amount, and of inferior quality; that defendant, therefore, hfxd overpaid the plaintiffs, and sets up a counter-claim to the extent of $147.15050. A reply denies the allegations of the answer.
    Upon the first trial, a verdict was found for the plaintiff, for $340.: Upon the second trial, there was also a verdict for the plaintiffs, in the sum of $287. A motion 'for new trial was overruled, and bill of exceptions taken, embodying all the testimony.
    In the course of the trial the testimony of the agents of the A. & Q-. ~W. R. R. Co., at Richwood, was given and the books of the railroad offered in evidence. These books and the testimony of the agents show that in October and November, 1870, six Carloads, and no more, of walnut lumber, were shipped from Richwood to Marion, to Diebold. The dates of the shipments are given, and the number of the way-bills, for the purposes of identification. The books or way-bills, however, while they show who was the consignee, do not show who -was the consignor, except in a single instance. In that one the Powells are the shippers. Neither can the agents tell who shipped the lumber. Of the six cars so consigned to Diebold, one was shipped October 18th, one October 19th, and one October 20th; the other three November 16, November 17 ,and November 21.1870.
    Diebold then offered in evidence the deposition of Clark Decker, the important part of which was ruled out — that part tended to show that Decker shipped to Diebold, from Richwood to Marion, three car loads of lumber, on or about the 18th, 19th and 20th. of October, 1870.
    "William Graham, who wras in the employ of Decker in the fall of 1870, also gave his deposition, in which he states that he helped Decker to load three cars at Richwood, and generally corroborates Decker ; all of which was ruled out, due exception being taken.
    When the case was called for trial in the court below, defendant being absent, his counsel moved for a continuance, and various affidavits pro and con were offered, but the continuance was refused. This refusal is assigned for error.
    The court of common pleas rendered judgment on the verdict of the jury rendered in the second trial. A petition in error was filed in the district court, and the judgment affirmed, whereupon a petition in error was filed in the supreme court.

      H. T. Van Fleet, for plaintiff in error.

      De Witt & Hoffman and Johnson & Scofield, for defendants in error.
   Wright, J.

With regard to the matter of continuance, Diebold, the defendant, was in Oiucinuati at the time his trial came on, aud avers that he was sick there and unable to travel. The fact of any serious indisposition is severely contested, and the matter is so doubtful in its appearance, that a court of error could not undertake to interfere. Questions of this kind are within the sound discretion of the court before which the cause is pending, and nothing short of an abuse of that discretion would justify a reversal. Perhaps a case might be made, where a reviewing court would be called upon to act, but such is not "the case before us.

Plaintiffs below claimed that the contract was to deliver 28,000 feet of lumber, on the cars at Richwood, and gave evidence tending to prove that state of ease. Upon the other hand, defendant, Diebold, claimed the contract to be, that the lumber was to be delivered on the cars at Marion ; Richwood being the beginning, and Marion the end of the route. If the contract clearly was, or was admitted to be as plaintiffs claimed it, and that the lumber was deliverable at Richwood, there might have been some degree of plausibility in rejecting the testimony of Decker and Graham. That testimony went to show this state of fact.

The railroad books and agents tended to prove, in fact did prove, as there was no contradiction of them, that in October and November, 1870, six car loads of lumber and no more were shipped from Richwood to Diebold at Marion. Decker’s evidence is to the effect that he shipped three of these car loads himself to Diebold, -so that there were only three car loads left for Powell & Co. to have shipped. The evidence tends to show that Diebold did receive about the amount of three car loads, for which he paid, but he denies having received any more.

If plaintiffs’ view of the case is correct, and the lumber was deliverable at Richwood, it might be irrelevant to show how much was received at Marion. But now comes the defendant and takes issue with the plaintiff', affirming that the lumber was not deliverable at Richwood, but at Marion. If this latter view is correct, it is all important to show that no more than three car loads came to Marion, consigned to him. This he offered to do by showing .that but six cars in all came over the railroad, to him, during the time covering' the transaction. Then Decker shows that of these six he sent three, leaving but three for .Powell, which were received and paid for.

There was error, therefore, in excluding the testimony of Decker and Graham, and for this the judgment must be reversed.

Judgment accordingly.


author: Scott, J.

text:
    Birdsall v. Heacock.
    1. A letter addressed to a lumber merchant in the following language r “Please send my son the lumber he asks for, and it will be all right,” is a guaranty that the lumber sold and delivered to the son, at the time-of its presentation, will be paid for.
    2. But such guaranty is not continuing, so as to make the guarantor liable' for lumber subsequently purchased by the son from the same merchant. And payments afterward made by the principal, on account, will be applied in satisfaction of the first purchase, and consequent discharge of the guarantor’s liability.
    Error to the Court of Common Pleas of Stark county. Reserved in the district court.
    The original action was brought by plaintiff in error, in the Court of Common Pleas of Stark county, against one T.. C. Heacock, as principal debtor, and the defendant in error, as guarantor, seeking to recover a balance remaining due on an account for lumber sold and delivered by plaintiff’s firm to the said T. C. Iieacoek. The first items of the account bore date May 11, 1868, and were of the value of $226. Then follow sundry items for lumber delivered at different dates, extending down to January, 1869, and amounting in the aggregate to $2,962. Credits are given for payments, at sundry times, to the amount of $2,522. The court rendered judgment against T. C. Heacock for the balance appearing, to be due on plaintiff’s account. But, as to the cause of action stated in the petition against the present defendant, he demurred, on the ground that the facts stated did not constitute a cause of action against him; and on this demurrer judgment was rendered imhis favor.
    To reverse this judgment on the demurrer, the plaintiff filed his petition in error in the district court, where the question of error was reserved for the decision of the supreme court.

      That part of the petition which states the complaint against the present defendant, was as follows:
    “And the plaintiff further says that in consideration that the firm of E. Ii. Potter would sell to said T. 0. Heacock lumber at his request, such as he would need in the business of a builder and lumber merchant; which business said.Heacock was about to engage in at the time he commenced purchasing lumber of said firm; the said Edwin Heacock did promise and guarantee in writing to said firm, that he would be accountable to said firm for whatever lumber said firm might sell to said T. 0. Heacok in his said business and make it all right, a copy of which guaranty is here given as a part hereof:
    “Alliance, May 11, 1868.
    “ E. H. Potter : Please send my son the lumber he asks for and it will be all right. I had to get him to write this as I was kicked with a horse one week ago on the arm and can not more than write my name if that.
    “ Signed, Edwin Heacock.”
    That said T. 0. Heacock is the son of Edwin Heacock, •and at the time of writing said guaranty and the commencement of dealing between said firm and him in said .account, the said T. C. Heacock was about to engage in the business of building houses and keeping a lumber-yard for the sale of lumber of all kinds, in the village of Alliance, in said county of Stark, and had no capital or credit of his •own. That he expected to carry on said business through several seasons, all of which was known to the said E. H. Potter and to said Edwin Heacock, and in order to give him, said T. C. Heacock, such credit from the said firm as he might desire in his said business, said Edwin Heacock executed said letter of guaranty and delivered it to his son, T. G. Heacock, who is the son mentioned therein, for the purpose of its being delivered to the firm of E. H. Potter, as a guaranty to them, and to procure credit for his ■son, and it was signed and executed by said Edwin Hea•eoelc, on or about May 11, 1868, and produced to said firm and delivered to it by said T. C. Heacock when he first applied to them to buy lumber. And induced by said letter, .and in faith of said promise and guaranty which was then delivered to said firm in the way of his business as such builder and keeper of a lumber-yard, and for reasonable prices, and on reasonable terms, agreed upon between said firm and said T. C. Heacock, said firm sold lumber to said T. C. Heacock, at different times, as shown in the foregoing account, for the purpose of enabling him to carry on his said business, in all amounting to the sum of $2,962.51, up to September 15,1871, on which the sum of $2,522.78 has been paid, as aforesaid, and the credit and time of payment of the said lumber by said Heacock to said firm has long since expired, and yet said T. C. Heacock has not, nor has said Edwin Heacock, paid said sum yet due, nor any part thereof. And of all of said premises said Edwin Heacock had frequent notice, and yet he refuses to pay the said firm, and to this partner, as surviving partner thereof, the said sum so due, or any part thereof, although often requested so to do.

      Joseph Parker, for plaintiff' in error:
    The facts stated show that if the writing of Edwin Heacock is of any force, it is au absolute guaranty as soon as acted upon, without special notice of its acceptance. Powers and Waightman v. Bumerantz, 12 Ohio St. 273.
    The facts being admitted by the demurrer, I think two questions only arise:

      First. Is the instrument a guaranty at all?

      Second. Is it a continuing guaranty, binding Edwin Heacock for any balance on account that his son may owe to E. H. Potter in the line of business contemplated ?
    The weight of recent decisions in England and in this country establishes the following rules for the construction of guaranties :
    1. They are governed by the same rules of construction as other contracts.
    2. They are most strongly construed against the guarantor, and there is a presumption in favor of validity.

      3. The court must give effect to the intention of the-pai’ties.
    4. To arrive at the intention of the parties the circum-' stances under which, and the purposes for which, the contract was made may be proved, and must be kept in view in its construction. Crist v. Burlingame, 62 Barb. (N. Y.), 35; De Colyar on Guaranties, 214; 2 Parsons on Contracts, 500; Salmon Falls Co. v. Portsmouth Co., 46 N. H. 249.
    5. The court must look at the surrounding cii’eumstancesin the construction of guaranties, and if the circumstances attending the giving of the instrument show that the actual intention of the guarantee to ask, and the guarantor to give, a guaranty which should operate as a continuing-assistance to the guarantee in a business, then, although the language in the writing is capable of a more restricted operation, the coux'twill give effect to the proved intention, and construe the contract as continuing, if its terms will admit it. 1 Law and Equity, 236; 10 Add. & E. 309; 10 Eng. C. L. 764; 5 Conn. 149; 3 Kernan, 232; 23 Eng. C. L. 401; 8 Johns (N. Y.), 119; 24 Wend. 82; 3 Denio, 512; 2 Am. R. 485; 5 Allen, 47.
    Construing this writing in the light of the rules laid down, Edwin Heaeock meant to bind himself to pay any balance owing to the plaintiff by T. C. Heacock. Sickle v. Marsh, 44 How. 91; De Colyar on Guaranties, 240, 244, 245, 246, 247, 248; Boehm v. Murphy, 40 Mo. 57.

      James Amerman, for defendant in error :
    The liability of Edwin Heaeock must be gathered from the entire instrument written by him. It can not be forced upon him by proof or allegation aliunde the instrument.
    What he intended must appear in writing because of the statute of frauds. Bushnell v. Bishop, 28 Ill. 204; Russell v. Clark, 7 Cranch, 62.
    If the instrument is a sufficient aud legal guaranty, then, as such guaranty, it became exhausted by the first purchase under it. Dixon v. Frusee, 1 E. D. Smith, 30; Kay v.
      Groves, 6 Bing. 276; Harden v. Crane, 1 Laws, 181; Anderson v. Bleakly, 2 Watts & Serg. 237; Whitney v. Groot, 24 Wend. 82; Gard v. Stephens, 12 Mich. 292; 119 Mass. 435.
   Scott, J.

Counsel for defendant in error claims that the instrument of writing upon which the petition in this case 'bases the liability of their client is not a guaranty of any kind. The petition, however, avers that it was acted upon .as a guaranty by the plaintiff’s firm ; and from its terms we think it was intended by the writer that it should be so understood and acted on. It is not a representation as to the solvency or pecuniary circumstances of the party .about to ask credit from the plaintiff; but a request or direction that such credit should be given, and an unqualified assurance that the doing so would “ be all right.” The •sale and delivery which it directs or requests could only be made “ all right ” to the plaintiff by punctual payment, according to the terms of the sale. And we think the writing imports a guaranty of such payment. It was an •absolute assurance that the lumber which might be deliv■ered to defendant’s son, at his request, would be paid for.

But, within a week from the date of this guaranty, the •son obtained from the plaintiff lumber to the value of $226, ■on the faith of this guaranty, this being the full amount that he then asked for; and this amount he has since fully paid for. The only question arising on the demurrer to plaintiff’s petition is, whether the guaranty in questio» is a continuing one, referable by its terms to other and subsequent sales of lumber,- made by plaintiff to defendant’s sou, ■or whether its terms limit it to a single transaction.

We see no good reason why contracts of warranty should not be construed by the rules applicable to the construction of contracts generally. As contracts by which the guarantor assumes the position of a surety, and becomes responsible for the default of his principal, there would ■seem to be good reason for not holding him liable beyond the express terms of his agreement; and, on the other hand, there can be no good reason why a guarantor, who-procures a credit to be given which would have otherwise been refused, should not be held liable to the full extent warranted by the terms of the guaranty. In all written contracts, we think the language of the parties should be-so construed as to give effect to their clearly ascertained intention. And, as au additional rule, we think it well settled that all contracts, in which the terms are in any respect equivocal, should be read in the light of the circumstances under which they were entered into. This is to be done, not for the purpose of varying the intention of the parties, as disclosed by the writing, but of ascertaining what the parties, in fact, meant by the doubtful language employed for the expression of their intention. The language of the guaranty in this case is, “ Please send my son the lumber he asks for, and it will be all right.” There is no express limit to the quantity of lumber to be-furnished. This is left to depend solely on the pleasure of the purchaser. But it may well admit of doubt whether it contemplates more than a single purchase. Its language-is in the present tense. And it might therefore be held that this language embraces only such lumber as the guarantor’s son should ask for, upon the presentation of the-guaranty. And as it contains no express reference to future transactions, such, we think, should be its construction, if read without regard to the circumstances under which it was written, or acted upon. And in support of such a construction, it is certain that many authorities, both English and American, might be cited. In order, therefore, to extend the meaning of this guaranty beyond the necessary import of its terms, the petition under consideration states that it was written and acted upon under certain circumstances which are supposed to give its language a meaning that it would not otherwise import. But, looking to all the circumstances stated in the petition, we think they are-not sufficient to give the guaranty relied on a more extended meaning than its terms would ordinarily import. It is-averred that the guarator knew that his son was about engaging in the lumber business, which he expected to carry on for several seasons. But the writing contains no reference to that fact; and it is not averred that the son expected or intended to make a series of purchases of lumber from the plaintiff, and that this fact was known to the father. It is also alleged that the plaintiff’, from time to time, furnished to the son the different bills of lumber stated in their account, in reliance upon this guaranty. But it is not alleged that this fact was, during this time, known to the father, or acquiesced in by him. Had such been the fact, it would be a practical construction of his contract, by the guarantor, which we might well adopt and enforce.

Looking, then, to the language of the guaranty, its operative words are : Send my son the lumber he asks for, and it will be all right.” This language clearly imports that the father knew that his son was desirous of procuring some lumber from the plaintiff upon credit. He clearly intended to procure such credit for his son by guaranteeing payment for such lumber as his son should ask for and obtain upon the presentation of the writing to the plaintiff’. And we think it does not clearly import more than this. The guaranty is co-extensive with the order or direction given, and this order was fully complied with when the plaintiff, upon its presentation, sold and delivered to the son the lumber which he then asked for.

Many cases might be cited in which similar language has been confined in its interpretation to a single transaction. Whitney v. Groot, 24 Wend. 82; Gard v. Stevens, 12 Mich. 292; White v. Reed, 15 Conn. 457; Anderson v. Blakely, 2 W. & S. 237.

On the other hand, cases are not wanting in which guaranties no more comprehensive in their form of expression have, under the circumstances of the case, been construed as continuing.

Hpon this subject, it has been well said, that “ the chief difficulty lies in determining what interpretation should be put on a guaranty which is so worded that it may either extend to a series of sales or advances, or be limited to the first. The better opinion would seem to be, that such an instrument should be confined to the immediate transaction, unless the language of the promise is sufficiently broad to show that it was meant to reach beyond the present, and render the guarantor answerable for future credits. The tendency of decision in this country has, accordingly, been against construing guaranties as continuing, unless the intention of the parties is so clearly manifested as not to admit of a reasonable doubt.” 2 Am. Lead. Cas. 141; citing Congdon v. Read, 7 R. I. 576; Gold v. Stevens, 12 Mich. 292; White v. Reed, 15 Conn. 457; Whitney v. Groot, 24 Wend. 82; Webb v. Dickerson, 11 Ib. 62; Aldrich v. Higgins, 16 S. & R. 213; Anderson v. Blakley, 2 W. & S. 237.

We are of opiniou that the judgment of the court of common pleas should be affirmed.

Judgment affirmed.


author: Ashburn, J.

text:
    Hall v. Hall.
    1. A husband, surviving his wife, has a vested estate by courtesy in the separate property of his wife, of which she died seized.
    2. Where it appears that a deceased wife, at the time of her death, owned land in her own right, and no state of facts then existed that would bar the surviving husband’s right to the courtesy therein, and the land is in the possession of another, the surviving husband has a right of action to recover the possession thereof.
    3. One claiming the benefit of the rule that a court of equitable jurisdiction will consider as executed that which in equity should have been executed, must show either that he has performed, has offered to perform, or has been at all times ready, willing, and able to perform on his part.
    4. Where the conduct of the parties in relation to a contract has been such as to show a mutual abandonment thereof, or where it has been so treated by them that neither of them could successfully invoke the aid of a court of equitable jurisdiction to enforce a specific performance, the rulo that equity will consider that done which should have been done will not operate as an estoppel to the assertion of a clear legal right..

      Error to the District Court of Portage county.
    The action was brought by Smith Hall against Joseph N. Hall to recover possession of of forty-five acres of land, with the rents and profits since September 2, 1870.
    The case was submitted by the parties to the court without the intervention of a jury. The court made a special finding of facts, and from this finding determined the law in favor of plaintiff" below, entering up a judgment in his favor for possession of the land, and two hundred and fifty dollars as the rents and profits. To this judgment the defendant below excepted, took the case, on the facts found by the court of common pleas, by petition in error, to the district court, where the judgment of the lower court was affirmed. The case is prosecuted here on the finding of facts, and errors assigned to the judgment of the court as to the law of the case, to have the judgments below reversed.
    On the trial, the court found from the pleadings and proofs the following facts :
    “ 1. In a. d. 1866, the plaintiff was seized of one hundred and ninety-seven acres of land, of which the lands in question here are a part, and was the husband of Angeline M. Hall, whom he married about 1822, and so continued her husband until her death. And being so seized, he conveyed said lands by deed, properly executed, and also some personal property, to Julia A. Clark, his daughter; his wife, Angeline M. Hall, not executing said deed. The sole consideration of said conveyance was that said Julia A. Clark and her husband, Charles Clark, agreed and bound themselves to maintain and support said Smith Hall, and his wife, Angeline M. Hall, during their lives, and support the survivors of them during life. And said Clarks entered into possession of said lands, and took said personal property, under said agreement, and supported said Hall and wife until the subsequent arrangement with defendant.
    “2. In October, 1866, while said lands aud property were ■thus owned and held, the above arrangement with the Clarks, not proving satisfactory to the parties interested, they entered into' a new agreement with the defendant,. Joseph N. Hall, by which the said Smith Hall agreed to convey and cause to be conveyed, in fee simple, said one-hundred and ninety-seven acres to said Joseph N. Hall,, and give him said personal property, if said Joseph N. Hall would sell his farm in Ashtabula county, and move with, his family upon the said one hundred and ninety-seven, acres of land, and take said land and personal property and support and maintain said Smith Hall and his wife, Angeline M., for life. At this time said Angeline M. Hall was' living with said Joseph N. Hall, at Ashtabula county; and as an inducement to Joseph to make said agreement, and to assume said support, she promised him to join in said conveyance, of said one hundred and ninety-seven acres, to Mm, and to convey any interest which she had in said lands to him, and which was a part of the aforesaid agreement with said Smith Hall, and said Smith Hall knew, at the time, that his said wife so agreed-and promised.
    “ 3. Thereupon said _ Joseph N. Hall, induced by said promises of Smith Hall and Angeline M. Hall, accepted said proposals, and agreed and bound himself, solely upon said consideration, to take said conveyance and property, and sell his land in Ashtabula county, and remove with his-family upon said one hundred and ninety-seven acres, and to so support and maintain said Smith Hall and Angeline M. Hall, for life; possession of said lands to be given -at once, except as to the house thereon, which was then occupied by the Clarks, and possession of that to be given early in the spring of a. d. 1867.
    “ 4. And then and there said Joseph N. Hall, in pursuance-of said agreement, and induced as aforesaid, sold his said farm in Ashtabula county, and removed, with his family, as aforesaid, and took possession of said one hundred and ninety-seven acres, with the exception of said house, occupied by said Clarks — took said personal property, so far as it was given to him, and occupied and used said property, except as aforesaid, until the same was sold, as hereinafter stated, and supported and maintained said Smith Hall until January 20, 1870, and said Angeline M. Hall until her death in September, 1870.
    “ 5. And to all of which agreements and acts, the said Julia A. Clark and her husband were parties and consented,, and abandoned and gaye up possession of said lands to said Joseph N. Hall, under said agreements, and the said Joseph N. Hall became and was entitled to a conveyance of said one hundred and ninety-seven acres, from said Smith Hall and Angeline M. Hall, in the fall of 1866, but no conveyance was ever made to him.
    “ At the time of making said agreement with defendants, said Smith Hall was indebted to various persons, about - $4,000, and said creditors, having afterward obtained judgments thereon against him, in the winter of 1866-7, commenced an action in this court, against him, said Julia A. Clark- and her husband making parties thereto the said Angeline M. Hall and this defendant, and seeking thereby to set aside said conveyance from Smith Hall to Julia A. Clark, and to subject said cine hundred and ninety-seven acres to the payment of said judgments and claims; and such proceedings were duly and legally had in said court-that at the-term, 1868, of said court, it was duly and regularly adjudged and decreed by said court, that said conveyance be set aside, so far as said creditors were concerned, and that said lands, except as hereinafter stated, be sold by the sheriff for the payment of said debts.
    “ 6. In which action said Joseph N. Hall filed an answer, but in which he did not make any claim to said land under-said contract. And the court further found and adjudged therein that, as to forty-five acres of said land, being the land mentioned in the petition herein, the same were purchased and paid for with the separate money and means of the said Angeline M. Hall, before contracting said debts by said Smith Hall, and was the sole and separate property and estate of the said Angeline M. Hall, and that the title thereto was held by said Smith Hall, in trust for her; and the court ordered him to convey the same to her, and that,. in default thereof said judgment should operate as such ■conveyance; but no conveyance was ever made.
    “ 7. Under said judgment, all of said lands, except said forty-five acres, were duly sold and conveyed by the sherifF, and, at the next term of said court, in 1868, said sale was duly and legally approved and confirmed by said court, and the proceeds applied upon the debts of said Smith Hall.
    “ 8. Upon said forty-five acres, and a part of it, was the dwelling-house occupied by said Joseph N. Hall, under said agreement, and where he resided with his family, after getting possession, in the spring of 1867, and where said Smith ■and Angeline M. Hall lived with, and were supported and maintained by, Joseph, and where said Joseph N. Hall still lives, and where he continued to support and'maintain said Smith Hall and Angeline M., as aforesaid — Smith Hall, until he left, January 20, 1870, and Angeline M., until her death in September 1870, both receiving such support, with full knowledge of the aforesaid facts; and the said Angeline M. Hall at no time, after said agreement was entered ■into, dissented from said agreement, but was at all times willing, so far as she was personally concerned, and so far as her own interest in said forty-five acres of land was concerned,-that the said contract should be carried out; and ■always, from the time of her making said original contract, to the time of her death, intended that said Joseph should have said forty-five acres; and before her death, for the reason that said Joseph had lost the residue of said lands, as aforesaid, and for the reason that she wanted the original. contract carried out, so far as it could be done, on the -day of--,1870, made and executed her last will and testament, which was on the-day of-- 1870, duly proven, and admitted to probate in said county of Portage; in and by which will, she legally devised said forty-five acres of land to said Joseph N. Hall and his heirs, in fee simple.
    “ 9. On January 20, 1870, said Smith Hall left said Joseph N. Hall, and said support, upon the ground, as claimed by him, that said Joseph had, since said sale of said laud, violated said agreement to support said Smith Hall, and had not furnished said support and maintenance, as agreed upon,, as aforesaid; and on January 28,1870, he commenced an action in this court, against said Joseph N. Hall, which action was, at the September term, 1871, of this court, finally tried and disposed of, upon the petition of said Smith Hall, and the answer of said Joseph N. Hall, the reply of Smith Hall; which pleadiugs are in the following words-to-wit: ”
    The pleadings thus made part of the court’s finding of fact are lengthy, and as but a small portion of them are necessary and material to the case, as understood by us, we will extract therefrom such portions as appear to have a bearing’ upon the issues in this case.
    In the petition Smith Hall charges that in October 14, 1866, he caused personal property of the value of $1,265, to be transferred to his son, Joseph N., and the possession of the one hundred and ninety-seven acres of land, in consideration of which defendant, agreed, undertook, and promised to furnish and provide a home for plaintiff' and his wife upon, said farm, and to support and maintain them, and to provide them with such suitable and proper comforts and necessaries as were suitable to their age and situation in life.
    And then charges that, from said 14th day of October, 1866, and until about the 20th day of January, 1870, plaintiff lived with defendant and received from him a partial support, when said defendant, without any good cause or reason therefor, unjustly, wrongfully, and wantonly caused plaintiff to be arrested on a charge of insanity, and endeavored to have him sent to an insane asylum, since -which last date the defendant has unjustly, and without good cause or excuse, entirely failed, neglected, and refused to furnish for plaintiff a home, or to provide him in any manner with support or maintenance, or with proper care, comfort, or necessaries, suitable for his age and station, by reason of which plaintiff, since that date, has been compelled to furnish himself a home, and to provide for his own support,, maintenance, care, and comfort.

      That defendant failed and refused to fulfill and comply with his agreement, or return to plaintiff the personal property that plaintiff had caused to be transferred, and claims that he was damaged three thousand dollars, etc.
    Joseph N. Hall denies these allegations, and sets up a -counterclaim, by reason of the premises, and loss of the land by reason of its sale to pay the debts of plaintiff of ..$5,500.
    In his answer proper he states that—
    “ By reason of the premises, the defendant was no longer bound to perform his part of said contract, and of which he notified plaintiff previous to said January 20, 1870.
    “And defendant says that what he has done for said plaintiff- and his wife, in the way of providing a home for them, supporting, caring for, and maintaining them, was more than equal in value to all that he has received from plaintiff. And he further says that while he has done and performed, upon his part, all that he was bound to do, in -his contract, yet the plaintiff has refused aud failed to perform his, in other respects, to wit, that he, during the time .aforesaid, and down to January 20, 1870, conducted and • demeaned himself toward defendant and his family by violent aud outrageous language and conduct, in such manner as to fully justify defendant in refusing to longer continue to perform said contract on his part, even if he had otherwise been bound to do so.”
    In his reply plaintiff admits defendant furnished a home ■and support to his wife until her death, and supported the plaintiff in partial compliance with the agreement up to .January, 1870, when defendant left. He left iu compliance with the notice -given him by Joseph N. that he was not bound to comply with the contract of 1866.
    Plaintiff' recovered in the action $500, the jury finding .all the issues in the case in his favor.' Joseph paid the judgment and retained the personal property, and lived ■ upon the land with his mother and his own family until the death of his mother. After her death this action was ■commenced.

      F. E. Hutchins, for plaintiff in error.
    J. D. Horton, for defendant in error.
   Ashburn, J.

On the death of his wife, Smith Hall, defendant in error, commenced his action to recover possession of the forty-live acres of land in controversy. He ■claims to derive his right to recover as tenant by curtesy.

It is couceded.by plaintiff in error that, by virtue of the judgment of the court in the creditors’ action, obtained in 1868, wherein it was determined that Angeline M. Hall, wife of Smith Hall, had a separate estate in and to the land in controversy, plaintiff below had an estate by •curtesy, unless defeated by the contract of October, 1866, and the acts of the parties. And this would be the result whether the effect of the judgment, in the action of the ■creditors of Smith Hall against him, was to convey a fee simple title to Angeline M. Hall for the forty-five acres, or raise a trust estate in Julia A. Clark for her.

Counsel have discussed several legal questions with marked ability. As we view the case, its merits can be clearly ascertained, and the rights of the parties be easily determined.

Angeline did not unite with her husband in the deed, conveying the one hundred and ninety-seven acres to Julia A. Clark. But afterward, when the agreement was made that Joseph should undertake the support and maintenance of Smith Hall and his wife, and have a conveyance for the land, she agreed to unite in the conveyance to Joseph. No conveyance, however, was ever made to him, for the reason that, soon after this agreement, the creditors of Smith Hall commenced their action against all the parties connected with the various transactions, charging that the deed to Julia A. Clark was made to hinder and delay the creditors of Smith Hall, and in fraud of their rights. The creditors obtained a judgment, in their favor, and caused all the land to be sold in satisfaction of their claims, except the land in' contest. In that proceeding the court “ found and ad-2 udged therein as to the forty-five acres of said land, being the land mentioned in the petition herein, that the same were purchased and paid for with the separate money and means •of the said Angeline M. Hall,” etc.; and that the title thereto was held by said Smith Hall in trust for her; and the court ordered him to convey the same to her, and that, in default thereof, said judgment should operate as such conveyance. No conveyance was made. In this way this land was saved to her from the wreck of her husband’s estate, and the land freed in her hands from all contracts against him. Joseph, however, carried out the understanding between himself and his mother, and in consideration thereof she devised to him the forty-five acres, of which he-retained the possession.

Plaintiff in error claims tbat whatever estate Smith Hall had in the land, whether in his personal or marital right, he was obligated, in equity, by the contract of 1866, to convey to Joseph N. Hall; that as this equitable obligation rested upon him at all times thereafter, equity will hold that as done which in good conscience he should have done; and that the transaction should be now treated as so far executed as to bar him from a recovei’y based on the uon-exccution of that which ought to have been executed. Practically, it is claimed, the court has found that Joseph N. was entitled to have a deed for the land from Smith Hall in 1866; that the equitable obligation existed at the time-this action was commenced, and operates as an equitable estoppel.

As we understand the controlling facts in this case,, plaintiff in error is not entitled to the benefit of this rule of equity. He who invokes its aid must be free, in relation to the transaction, from serious fault — must have performed on his part, or satisfy the court that he was at all times ready, willing, and able to perform the agreement on-his part. This consideration requires that we should consider and apply some of the facts of the case.

Joseph N. Hall, in his answer and counterclaim to the petition of Smith Hall for damages, states that prior to January 20,1870, by reason of the “violent and outrageous language and conduct” of Smith Hall “toward defendant and his family,” he was fully justified “ in refusing to longer perform” the contract of supporting Smith Hall, on his part, even if he had otherwise been bound to do so.” He further states “ that by reason of the pi-emises, the defendant was no longer bound to perform his part of said contract, and of which he notified plaintiff previous to said January 20, 1870.” At this date Smith Hall left the house of Joseph N. Hall; treated the contract between them as at an end, by each failing to perform, and each claiming the other had failed to perform. Soon thereafter the plaintiff commenced an action against defendant for damages arising out of the alleged breaches of the contract on the part of defendant. In that action all questions that could arise as to the rights and liabilities of the parties, growing out of the contract of 1866, were put in issue, and determined in favor' of the plaintiff. To us the conclusion seems inevitable from the facts, that about January 20, 1870, the contract was mutually abandoned. Erom that date on, until the commencement of this’action, the parties treated the contract as rescinded, and occupied toward each other such a relation that, in equity, neither could have enforced a specific performance of the contract. Hence no equitable bar interposed to defeat plaintiff’s right to assert his estate by the curtesy.

Judgment affirmed.