text:
    No. 11841.
    Ridgway v. The State of Ohio.
    Decided February 15, 1910.
    Error to Circuit Court of .Greene county.

      Mr. H. C. Armstrong and Messrs. Fitzgerald & Spriggs, for plaintiff in error.

      Mr.- William F. Orr, prosecuting attorney; Mr. G. W. Crabbe; Mr. W. B. Wheeler and Mr. J. A. White, for defendant in error.
   Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    No. 12085.
    Hirsh et al., Partners, v. The State of Ohio.
    Decided February 15, 1910.
    Error to Circuit Court of Flancock county.

      Mr. G. W. Ross, for plaintiffs in error.

      Mr. John E. Priddy and Mr. Charles A. Blackford, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear, Davis, Spiauck. and Price, JJ., concur. Crew, J., dissents.


text:
    No. 11285.
    Neuzel v. The Village of College Hill et al.
    Decided February 23, 1910.
    Error to Circuit Court of Flamilton county.

      Mr. A. L. Herrlinger; Mr. Constant South-worth and Mr. Edward T. Dixon, for plaintiff in error.

      Mr. C. Hammond Avery, for defendants in error.
   Judgment affirmed. Grounds stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same is hereby, affirmed. An order granting a motion for a new trial on the ground that the verdict is not sustained by the evidence, made in an appropriation proceeding by a municipal corporation, is not an order affecting a substantial right, for the reversal of which a petition in error can be prosecuted before the final disposition of the case. Conord v. Runnels, 23 Ohio St., 601, followed.

Summers, C. J., Davis and Price, JJ., concur.


text:
    No. 11360.
    Davis v. Birchard.
    Decided February 23, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. William Howell, for plaintiff in error.

      Messrs. Smith, Taft & Arter, for defendant in error.
   Judgment affirmed.

Summers, C. J., Davis and Price, JJ., concur.


text:
    No. 11609.
    The Scioto Valley Traction Co. v. Kennedy.
    Decided February 23, 1910.
    Error to Circuit Court of Franklin county.

      Messrs. Daugherty & Todd, for plaintiff in error.

      Messrs. Addison, Sinks & Babcock, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew and Price, JJ., concur. Spear, J., not participating.


text:
    No. 11610.
    Schultz, Guardian, v. Huber, Executor, et al.
    Decided February 23, 1910.

      Error to Circuit Court of Hamilton county.

      Messrs. Bates & Meyer, for plaintiff in error.

      Messrs. Coppock & Coppock, for defendants in error.
   Judgment affirmed.

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


text:
    No. 11616.
    Parks et al. v. Fenton et al.
    Decided February 23, 1910.
    Error to Circuit Court of Trumbull county.

      Mr. William A. Spill, for plaintiffs in error.

      Mr. Charles Fillius and Mr. Ward Sager, for defendants in error.
   Judgment affirmed.

Crew, Spear, Davis, Si-iauck and Price, JJ., concur.


text:
    No. 11849.
    The Edward H. Everett Co. v. The German American Insurance Co.
    Decided February 23, 1910.
    Error to Circuit Court of Licking county.

      Messrs. Flory & Flory and Mr. Robbins Hunter, for plaintiff in error.

      Mr. J. W. Mooney, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11916.
    The State of Ohio v. Mead et al.
    Decided February 23, 1910.
    Error to Circuit Court of Sandusky county.

      Mr. E. C. Sayles,. prosecuting attorney, and Mr. J. D. Finch, for plaintiff in error.

      Messrs. Kinney, O’Farrell & Rimelspach and Messrs. Garver, Garver & Garver, for defendants in error.
   Judgment of the circuit

court reversed and judgment of the court of common pleas affirmed.

Summers, C. J., Davis, Shauck and Price, JJ., concur.


author: Price, J.

text:
    Pfanz v. Humburg et al.

      Real estate agent — Entitled to his commission when property actually sold — Not an agreement of parties to buy, when — Binding conditions of contract between vendor and agent.

    P., a real estate agent, accepted the following written proposition:
    “Cincinnati, Ohio, May 2, 1905. “John Pfanz, Agent: I hereby authorize you to sell for me the following described real estate, located at 2241 Flora Place, for the sum of three thousand five hundred ($3,500.00) dollars on the following terms: title to be perfect, free and unincumbered, payments to be cash, and I agr.ee to give you sole authority to sell the same for the period of ten days, and agree to pay you for services when the property is sold. “Magdalena Humburg, “William Humburg.’’'

      P. procured one who said he was willing to take the property at said price, and he paid the agent $9.75, for which the agent gave a receipt, and turned the payment over to the vendors; but no written contract of purchase was entered into, nor was possession taken by the alleged purchaser, who afterwards refused to 'take the premises or complete the purchase by entering into an enforceable contract.

      Held: That the condition in -said contract of employment, “to pay for services when the property is sold,” has not been complied with by the agent and he is not entitled to recover commission.
    (No. 11389
    Decided March 15, 1910.)
    Error to the Circuit Court of Hamilton county.
    The controversy between the parties was first heard by a justice of the peace, where the plaintiff in error prevailed and recovered judgment against the defendants in error. The latter appealed to the court of common pleas, where an issue was made up by the petition and answer thereto. As the contract between the parties is copied in the petition, we make the petition a part of this statement, as follows: “For his cause of action
    against the defendants herein, plaintiff says that on May 2, 1905, he entered into a contract in writing with the defendants herein, a copy of which is as follows, to-wit:
    ‘Cincinnati, Ohio, May 2, 1905.
    ‘John Pfanz, Agent: I hereby authorize you to sell for me the following described real estate, located at 2241 Flora Place, for the sum of three thousand five hundred ($3,500) dollars on the following terms: title to be perfect, free , and unincumbered; payments to be cash, and I agree to give you sole authority to sell the same for the period of ten days, and agree to pay you for services when the property is sold.
    • ‘Magdalena Humburg.
    ‘William Humburg/
    “Plaintiff says that on or about May 9, 1905, he procured in writing a purchaser for the said premises, in accordance with the terms of said contract, who was ready, able and willing to purchase said property in accordance with the terms of the contract above set forth, and so notified the defendants.
    “Plaintiff says further that having done and performed all the things by him to be done under said contract on his part, he made demand of said defendants for seventy dollars, being the amount due him for compensation on said sale, and a reasonable sum due him for services thus rendered, but that the defendants refused to pay him said sum of seventy dollars thus due' him as aforesaid.”
    Then follows a prayer for ■ judgment for the amount and interest thereon.
    The following answer was filed: “And now come the defendants and for answer say that they admit that this cause comes into this court on appeal from the judgment of James M. Brant, justice of the peace in and for Cincinnati township, and that they entered into the written contract dated May 2, 1905, a copy of which is set out in the petition. For further answer these defendants deny each and every other allegation in the petition contained.”

      The case came to trial before a jury, and after the plaintiff had introduced his testimony and rested, the defendants moved the court to direct a verdict in their favor, and the court sustained the motion, overruled motion for new trial, and rendered judgment on the directed verdict. The circuit court affirmed the judgment.

      Mr. A. L. Herrlinger and Mr. Edward T. -Dixon, for plaintiff in error.
    Where the real estate agent finds a purchaser who is ready, willing and able to take the property .at the stipulated price, no written contract of purchase signed by the prospective purchaser is necessary to enable the agent to recover his commission. Weatherhead v. Ettinger, 78 Ohio St., 104; Brooks v. Wortendyke, 18 Dec., 789; Gonzales v. Broad, 57 Cal., 224; Barber v. Heade, 10 C. C., N. S., 343; Heintz v. Boehmer, 4 N. P., 226; Duclos v. Cunningham, 102 N. Y., 678; Casady v. Seely, 29 N. W. Rep., 432; Godley v. Haley, 17 Cir. Dec., 606; McFarland v. Lillard, 2 Ind. App., 160; McDonald v. Smith, 108 N. W. Rep., 291; Baars v. Hyland, 65 Minn., 150; Grosse v. Cooley, 45 Minn., 188; Christensen v. Wooley, 41 Mo. App., 53; Bailey v. Chapman, 41 Mo., 536; Nesbitt v. Helser, 49 Mo., 383; Hayden v. Grillo, 35 Mo. App., 635; Rapalje on Real Estate Brokers, 153; Phelan v. Gardner, 43 Cal., 311; Kock v. Emmerling, 22 How., 69; Branard v. Monnot, 33 How. Pr., 440; Flegel v. Dowling, 102 Pac. Rep., 178; Manker v. Tough, 98 Pac. Rep., 792; Willard v. Wright, 89 N. E. Rep., 559; Duffy v. Hobson, 40 Cal., 240; Campbell v. Galloway, 148 Ind., 440; Furst v. Tweed, 93 Ia., 300; Halsey v. Monteiro, 92 Va., 581; Fitzpatrick v. Gilson, 176 Mass., 477; Cook v. Welch, 9 Allen, 350; Desmond v. Stebbins, 140 Mass., 339; Middleton v. Thompson, 163 Pa. St., 112; Keys v. Johnson, 68 Pa. St., 42.
    If, however, a written contract is essential, sufficient memoranda passed between Ohlinger and the Humburgs through the agency of Pfanz to constitute the same. It is contended on behalf of plaintiff in error that the paper writing, which Pfanz gave Ohlinger for part payment of the purchase money, and the paper writing which Pfanz received from Mrs. Humburg, when he turned this money over to her, were separately and together such a memorandum as took the contract out of the statute of frauds. In other words, the broker at that point and for that purpose became the agent of both the seller and purchaser so as to comply with the statute of frauds. Palmer v. Insurance Co., 13 Mo. App., 471; Story on Agency (3 ed.), Sections 28, 31; Wharton on Agency, Section 715; 4 Am. & Eng. Ency. Law (2 ed.), 966; Hinckley v. Arey, 27 Me., 362; Coddington v. Goddard, 16 Gray, 436; Saladin v. Mitchell, 45 Ill., 79.
    Receipts, such as are in evidence in this case, setting forth fairly and with reasonable certainty the premises to be sold and the terms of the contract, have been reneatedly held to comply with the requirements of the statute of frauds, and to constitute contracts specifically enforceable. Browne on Statute of Frauds (5 ed.), Section 346; Lumber Co. v. Corey, 140 N. Car., 468; Timber Co. v.
      Lumber Co., 85 Pac. Rep., 338; Barickman v. Kuykendall, 6 Blackford (Ind.), 23; Ellis v. Dead-man's Heirs, 7 Bibb (Ky.), 467; Williams v. Morris, 95 U. S., 445; Crotty v. Effter, 54 S. E. Rep., 345; Ellis v. Bray, 79 Mo., 227.
    A mere proposal by the owner delivered to the purchaser and assented to by him, though not signed by the latter, is a sufficient memorandum, and the agreement is in law “in writing and signed.” Furnace Co. v. Railroad Co., 22 Ohio St., 451; Timber Co. v. Lumber Co., 85 Pac. Rep., 338; Thayer v. Luce, 22 Ohio St., 62; Forthman v. Deters, 206 Ill., 159; Lowber v. Connit, 36 Wis., 176; Vilas v. Dickinson, 13 Wis., 488; Memory v. Niepert, 131 Ill., 623; Ames v. Moir, 130 Ill., 583; Ullsperger v. Meyer, 217 Ill, 263; Johnson v. Dodge, 17 Ill., 433; 3 Parsons on Contracts (9 ed.), 10, 11; Gartrell v. Stafford, 12 Neb., 545; Lee v. Cherry, 85 Tenn., 707.
    There is no distinction in law between the case of a real estate agent who undertakes to sell a certain piece of property, and that of one who undertakes to find a purchaser for it. McFarland v. Lillard, 2 Ind. App., 160; Barnard v. Monnot, 33 How. Pr., 440; Barber v. Heade, 10 C. C., N. S., 343; Treat v. De Celis, 41 Cal., 202; Duffy v. Hobson, 40 Cal., 240; Goss v. Broom, 31 Minn., 484; Reynolds v. Tompkins, 23 W. Va., 229; Lockzwood v. Rose, 125 Ind., 588.
    AATiere the actual sale fails of consummation because of the' seller’s inability to furnish a good title, the real estate agent is not thereby precluded from recovering his commission. Godley v. Haley, 17 Cir. Dec., 606; Carpenter v. Rynders, 52 Mo., 278; Phelps v. Prusch, 83 Cal., 626; Hamlin v. Schulte, 34 Minn., 534; Collins v. Fowler, 8 Mo. App., 588; Christensen v. Wooley, 41 Mo. App., 53; O’Niel v. Printz, 115 Mo. App., 215; Davis v. Morgan, 96 Ga., 518.
    We respectfully submit that where a sale fails of consummation because of the default of the seller, the broker may always recover his commissions from the seller, regardless of whether there is a binding contract of sale or not.
    This doctrine is so universal and so firmly established, and so intricately interwoven with the law of commission brokers, that we find numerous authorities sustaining it, even in the _ brief of opposing counsel. Brooks v. Wortendyke, 18 Dec., 789; Kronenberger v. Bierling, 76 N. Y. Supp., 895; Fittichauer v. Van Wyck, 92 N. Y. Supp., 241; Huggins v. Hearne, 74 Mo. App., 86.

      Messrs. Renner & Renner and Mr. Eugene Heim, for defendants in error.
    The agent agreed to be paid for his services when the property was sold. Counsel admit that Pfanz acted by and under the authority of the written contract set out in the petition on appeal. By it he was to be paid when the property was sold, and this language was his own on his blank. He therefore entered into a specific contract, and was bound by its terms, and no other. The property was not sold, and such failure was caused by the prospective purchaser. As between the sellers and their agent, the reason for such failure is immaterial. In fact, it is doubtful if, under the pleadings, it is competent to be gone into.

      Under the circumstances, the agent could recover only if an enforceable contract existed, binding would-be purchaser. Not only did Pfanz fail in selling the property, but he also failed to bind Ohlinger by enforceable contract to make the purchase. This left his principals without remedy against Ohlinger, and, in consequence, left Pfanz without remedy against them, since Ohlinger, and not the Humburgs, refused to consummate the transaction. Rapalje on Real Estate Brokers, Section 32; Gilchrist & Martin v. Clarke, 86 Tenn., 583; Tombs v. Alexander, 101 Mass., 256; Levy v. Kottman, 32 N. Y. Supp., 241; Condit v. Cawdrey, 139 N. Y., 274; Kronenberger v. Bierling, 76 N. Y. Supp., 895; Fittichauer v. Van Wyck, 92 N. Y. Supp., 241; Wilson v. Mason, 158 Ill., 304; Friestedt v. Dietrich, 84 Ill. App., 604; Jenkins v. Hollingsworth, 83 Ill. App., 139; Huggins v. Hearne, 74 Mo. App., 86; Michener v. Beirn, 9 Pa. C. C. R., 637; Francis v. Baker, 45 Minn., 83.
    The receipt herein is unenforceable as a contract by the buyer against him. Abandoning their position that an enforceable contract is unnecessary, the attempt is made by the other side to show that there is an enforceable contract here by reason of the agent representing both parties in the receipt.
    An agent may in a few scattered cases represent both parties in making memoranda under the statute of frauds, but they will be found generally to be cases of auctioneers and brokers as to chattel property, and in all instances the parties intended such action by the agent. No such intention can be gathered from the receipt herein that the prospective purchaser bound himself by a receipt of which he took possession given by the acknowledged agent of the seller. This purchaser in no way authenticated this receipt by signing it or authorizing the agent to sign it. The proposition seems too plain for discussion. 20 Cyc., 272; Levy v. Kottman, 32 N. Y. Supp., 241; Wilson v. Miller, 42 Ill. App., 332; Smith v. Jones, 66 Ga., 338.
    If, for the sake of argument, the contention of opposing counsel were accepted that Pfanz at the instant of this receipt signed by him acted as the agent of both parties, still we would have a document falling short of that completeness of memoranda required under Ohio settled decisions forbidding parol proof. Kling, Admr., v. Bordner, 65 Ohio St., 86; Anderson v. Harold, 10 Ohio, 400.
   Price, J.

This falls far short of making a sale, for many untoward incidents may occur after a purchaser is procured, which may defeat a sale without any fault on the part of the owners, the principals. This agent knew a Mr. Ohlinger, who had made inquiry about property, and the agent took him to the Humburg premises and they were examined by Ohlinger and also by his wife. They seemed satisfied with the property and the terms, and orally agreed to pay the price. But no contract was reduced to writing, and of course none signed. Ohlinger paid the agent $9.75, for which the latter gave a receipt. This receipt signed by plaintiff, the agent, stated, “the title to said property must be good and unincumbered except the taxes in December. 1905, and thereafter.” The agent turned the $9.75 over to the Humburgs, taking their receipt therefor. But Ohlinger signed- no writing whatever. And aside from the above contract of agency, the Humburgs signed nothing except a receipt to the agent for the $9.75. Ohlinger did not take possession, and nothing further was done towards completing a-sale. The plaintiff’s testimony shows that after Ohlinger had paid the $9.75. his attorney examined the title, pronounced it bad and advised Ohlinger against buying the property, and he acted on that advice' and there all negotiations ended. Neither the owners in person or by the agent, nor the prospective purchaser, signed any' contract of sale, and as possession was not taken, there was nothing but an unenforceable parol agreement. If this be true, it is quite certain there had been no valid sale made. The agent failed to procure .a contract of purchase and sale, which the owners could enforce, and under his contract of agency, he was required to make a sale, or secure a valid contract for the same, in order to receive compensation. This agency contract was not to merely procure an able, willing and ready purchaser, but the owners agree to pay for services when the property is sold. This condition is not met where a parol contract is made which can not be enforced.

As said in Wilson v. Mason, 158 Ill., 304-311: “The true rule is that a broker is entitled to his commission, if the purchaser presented by him and the vendor, his employer, enter into a valid, binding and enforceable contract. * * * An agreement by a real estate broker to procure a purchaser, not only implies that the purchaser shall be one able to comply, but that the seller and purchaser • must be bound to each other in a valid contract. So, where the agreement of the real estate broker is to make a sale, his commission is earned when a contract is entered into, which is mutually obligatory upon the vendor and vendee, even though the vendee afterwards refuses to execute his part of the contract of sale or purchase. An oral agreement upon the part of the purchaser of land would not be a valid agreement; and if he refuse to complete the sale of land after such oral agreement, without fault upon the part of the seller, the obligation of the broker would not be fulfilled, and he could not recover his commissions.”

This authority fully covers the present question; and we are satisfied with it. The failure to complete the sale in the present case was not through the fault of the sellers, for the record shows they tendered a deed to Ohlinger and urged his acceptance. The reason for refusal given by Ohlinger was that the title was not good, but the nature of the defect, if any, does, not appear in the record.

The above case cites others, and they may be found in the brief. Many of the authorities cited for plaintiff in error treat of cases where the sale failed of completion because of the conduct or default of the principal and where the agent had performed his whole duty.

The plaintiff in error, through his counsel, makes the proposition, that “where the real estate agent finds a purchaser who is ready, willing and able to take the property at the stipulated price, no written contract of purchase signed by the prospective purchaser is necessary to enable the agent to recover his commission.”

As a general rule, we may assent to it, but it can not be used to determine every case, especially in a case where the contract of agency is specific and clear as to the condition upon which commission can be recovered. Nor do we intend to hold that as a general rule it is a part of the agent’s duty to enter into a written contract with the purchaser for the sale of the property. This court held in Weatherhead v. Ettinger, 78 Ohio St., 104, that “a real estate broker is without authority to execute a contract of sale which shall be binding upon one who places real estate in his hands for sale unless such authority' is ’ specially conferred.” But the agent should go far enough to find a ready, able and willing purchaser and bring him and the owner together so that they may enter into a binding contract of sale and purchase. However, we need not further notice or discuss cases cited for plaintiff in .error, because it appears in the evidence in this case that the agent drafted the contract of agency involved here, and prepared it for the signature of his principals. He placed in it a condition not-frequently found in such agency contracts, and it differentiates this from the numerous cases cited in brief for plaintiff in error. After giving him sole authority for ten days to sell the property at the price named, title to be perfect, free and unincumbered, the owners agree to pay the agent for services when the property is sold. It is not averred in the petition, nor’ is it established by any evidence introduced by the agent, that a sale was made.

The writing, and the only writing between the purchaser and agent, was merely a receipt which the agent gave Ohlinger for $9.75 to be applied on the purchase price of the premises. He procured no obligation signed by Ohlinger. Therefore there was no sale made — no enforceable contract entered into by either vendor or vendee.

We find no error in the judgment of the lower court and its judgment is

Affirmed.

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


author: Shauck, J.

text:
    The Western Union Telegraph Company v. Sullivan et al.

      Liability of telegraph company — For failure to deliver message— Results from inaccuracy in transmission of message — Question of presumption as to fault — In non-delivery — Estimate of damages.

    1. Since a telegraph company for failure to deliver a message is liable only for such damages as naturally result from the breach of its contract, special damages cannot be recovered unless for injuries of such a nature as the terms of the message, or some circumstances attending its transmission, would suggest as likely to result from such failure. (Bank v. Telegraph Co., 30 Ohio St, 555, approved and followed.)
    2. Although in an action against a telegraph company for damages resulting from an inaccuracy in the transmission of a message, the inaccuracy having been shown, the burden is upon the company to show that it was not due to its fault, no presumption can be indulged to sustain an allegation of the company’s failure to make timely delivery of a message when it does not appear that the addressee, or some one representing him, was at the place designated for deliverj'. (Telegraph Co. v. Griswold, 37 Ohio St., 301, distinguished.)
    (No. 11080
    Decided March 15, 1910.)
    Error to the Circuit Court of Lucas county.
    Sullivan and others brought suit in the court of common pleas to recover from the telegraph company special damages alleged to have been sustained by them as a result of its negligent failure to deliver a telegram. They alleged that 'they were the owners, Sullivan being the mánaging owner, of the steamer “David W. Rust” which in the season of 1905 was engaged in carrying freight on the Great Lakes and tributary and .connecting rivers; that on the second day of December, when navigation was about to close, the steamer was at the Minnesota clock at the port of Buffalo about to sail light for her home port Toledo. That on that day Sullivan having nearly completed arrangements for a cargo of coal to be carried by the steamer from Buffalo to Toledo, being twelve hundred tons to be carried • at the rate of fifty cents per ton, at 9:45 p. m. delivered to the telegraph company’s agent at Toledo, written upon one of its blanks, the following telegram: “To Capt. Wm. J. Leaver, Steamer D. W. Rust, care Minnesota Dock, Buffalo, New York. Will wire you in the morning about coal. Collect. L. S. Sullivan.” They allege that said dock was about a mile and a half distant from the telegraph company’s Buffalo office where the telegram was received at 11:10 r. M. Eastern time; that the purpose of the telegram was to hold the steamer at Buffalo until Sullivan could complete arrangements for a cargo of coal to be carried to Toledo, but that although the telegraph company’s office was connected with the Minnesota dock by telephone, it negligently failed to deliver the telegram before 3:15 a. m. of the following day when the steamer left the dock for Toledo without cargo, and that by reason thereof the plaintiffs were unable to communicate with the steamer respecting the cargo of coal, and it went to Toledo without cargo, the plaintiffs losing thereby the agreed amount to be paid for its carriage for which they prayed judgment.
    The telegraph company answering admitted that it received the telegram at its Toledo office Efnd transmitted it to its Buffalo office as alleged, and that its latter office was connected with the Minnesota dock by telephone. It denied all the other allegations of the petition. On the trial to the court and a jury, the plaintiffs offered evidence tending to show that by Sunday morning, December 3, Sullivan had completed arrangements with the Toledo and Buffalo agents of a coal company for a cargo of coal to be brought by the steamer from Buffalo to Toledo as alleged, but that the same could not be communicated to the captain of the steamer because he had already left the port at Buffalo. To show the failure to deliver the telegram of the second of December, the plaintiffs introduced the following telegram from the company’s Buffalo agent on the day following: “Yours 2nd. Steamer D. W. Rush left Minnesota dock about midnight 2nd before boy reached dock msg reed here lllOp.” The plaintiffs also introduced the steamer’s log containing the following entry: “December 3, 3:40 a. m. W. N. W. L. Left Buffalo. Snow.” Plaintiffs showed that the captain of the steamer had died before the trial and rested without offering any other member of the crew or any further evidence. The defendant offered no evidence. In the common pleas court a verdict in favor of the defendant was directed. The judgment following it was reversed by the circuit court and the cause was remanded for a new trial.

      Messrs. Smith & Beckwith and Mr. George H. Fearons, for plaintiff in error.
    ■ There was no evidence of negligence on the part of the telegraph company. Indeed, plaintiffs’ proof itself negatives the. charge of negligence. Telegraph Co. v. Griswold, 37 Ohio St., 301.
    In support of the' proposition that in cases where damages for delay in delivery of a message are claimed, the plaintiff must show that the message could have been seasonably delivered, we cite: Ayres v. Telegraph Co., 65 App. Div., 149; Altman v. Telegraph Co., 84 N. Y. Supp., 54; Telegraph Co. v. Henderson, 7 So. Rep., 419.
    But beyond this, it will be noted in the case at bar that plaintiffs’ proof not only showed a nondelivery of the message, but also — (and this by the very same messages relied upon to prove non-delivery) ■ — that the reason for the non-delivery was that the boat had left the dock before midnight when the defendant’s messenger boy reached there with the message. If there was any presumption of negligence arising from non-delivery, in this case, such presumption is removed by the plaintiffs’ own evidence.
    But in any case, no damages can be recovered for the delivery of the message here in controversy. Bank v. Telegraph Co., 30 Ohio St., 555; Telegraph Co. v. Coggin, 68 Fed. Rep., 137; Primrose v. Telegraph Co., 154 U. S., 1; Baldwin v. Telegraph Co., 45 N. Y., 744; Telegraph Co. v. Clifton, 8 So. Rep., 746; Jacobs v. Telegraph-Cable Co., 24 So. Rep., 535; Melson v. Telegraph Co., 72 Mo. App., 111; McColl v. Telegraph Co., 7 Abb. New Cases, 151; Elliott v. Telegraph Co., 12 S. W. Rep., 954.
    But' in any case the damages sought to be recovered in this case are too remote and uncertain, for the reason that there was no certainty at the time of the alleged failure to deliver the message, that the boat could get a charter. It was a contingency which might or might not occur. There can be no recovery for the loss of an opportunity of which plaintiff might or might not avail himself. The message in this case was not contractual in its nature. It did not close a contract (as in the Griswold case above cited) ; it did not even make a contractual offer. Under such circumstances the damages can not be recovered. In this connection we cite besides the case of Bank v. Telegraph Co., 30 Ohio St., 555, the following cases: Johnson v. Telegraph Co., 29 So. Rep., 787; Lumber Co. v. Telegraph Co., 44 S. E. Rep., 309; Telegraph Co. v. Hall, 124 U. S., 444; Hosier Mills v. Telegraph Co., 51 S. E. Rep., 290; Fisher v. Telegraph Co., 96 N. W. Rep., 545; Telegraph-Cable Co. v. Barwise, 53 Pac. Rep., 252.

      Mr. W. S. Thurstin and Messrs. Seney & Thurstin, for defendants in error.
    Did plaintiffs introduce sufficient evidence to establish a prima facie case of negligence on the part of the telegraph company? We maintain that we did and cite the following cases to sustain our contention: Telegraph Co. v. Griswold, 37 Ohio St., 301; Barrack v. Telegraph Co., 12 Dec., 79; Fowler v. Telegraph Co., 80 Me., 381; Tyler v. Telegraph Co., 60 Ill., 421; Telegraph Co. v. Davis, 41 Ark., 79; Cowan v. Telegraph Co., 122 Ia., 379; Sherill v. Telegraph Co., 116 N. Car., 655; Bank v. Telegraph Co., 30 Ohio St., 555.

      Was the testimony such that reasonable men might differ as to whether a party had been guilty of negligence or not?
    This subject is partially covered by the citations in the above subdivision, but this phase of the question is equally pertinent: If reasonable men
    might differ as to whether a party- had been guilty of negligence or not, then, it is a question for the jury to decide, and the jury alone. Railway Co. v. Stone, 2 C. C., N. S., 161; Koester v. Railway Co., 20 C. C., 475; Kelly v. Howell, 41 Ohio St., 438; Lear v. Railway Co., 12 O. C. D., 797, 60 Ohio St., 602.
    Did the telegram convey sufficient notice of a business transaction to place a prudent man on inquiry as to the importance of the message? We maintain that it did. In the following cases are good examples of the sufficiency: Manville v. Telegraph Co., 37 Ia., 214; McPeek v. Telegraph Co., 107 Ia., 356; Telegraph Co. v. Short, 53 Ark., 434; Telegraph Co. v. Zane, 25 S. W. Rep., 722; Thompson v. Telegraph Co., 64 Wis., 531; Telegraph Co. v. Graham, 1 Col., 230; Pearsall v. Telegraph Co., 124 N. Y., 256; Bierhaus v. Telegraph Co., 8 Ind. App., 246; Telegraph Co. v. Wenger, 55 Pa. St., 262.
    It is sufficient if the result likely to follow negligence in transmitting it may be gathered in a general way from the wording of the telegram. 27 Am. & Eng. Ency. Law (2 ed.), 1063.
    Did the telegram disclose enough of its importance to charge the telegraph company with notice, at the time it was delivered to -it, so that had it bestowed proper attention upon the subject it would have contemplated the damages flowing from the breach of the contract?
    We maintain that it did and offer the same reasons as in the above subdivision.
    In considering Hadley v. Baxendale, 9 Exchequer, 341, we believe that the true doctrine and the one followed by this court in Bank v. Telegraph Co., 30 Ohio St., 555, is the rule enunciated in Leonard v. Telegraph Co., 41 N. Y., 544, and Telegraph Co. v. Lathrop, 7 L. R. A., 474.
    Was there the slightest amount of evidence tending in any way to prove the material allegations necessary for plaintiffs to recover?
    There was far more than slight evidence upon every material allegation necessary for plaintiffs to recover.
    There was far more than a scintilla of evidence introduced by plaintiffs below on the material allegations. This being the case it was error for the court to take the case from the jury or to direct them to return a verdict for defendant.
    The most that the court could have done was to direct for nominal damages. Bank v. Telegraph Co., 30 Ohio St., 555; Hibbard v. Telegraph Co., 33 Wis., 565; Candee v. Telegraph Co., 34 Wis., 471; Railroad Co. v. Van Horn, 21 C. C., 337; Stockstill v. Railroad Co., 24 Ohio St., 83; Lessee of Moore v. Vance, 1 Ohio, 1; Chase v. Brundage, 58 Ohio St., 517.
   Shauck, J.

The case is to be determined by the fact that the plaintiffs in the original case sued only Tor the special damages resulting from the failure to secure a cargo for the steamer pn her trip from Buffalo to Toledo, and the question whether a case is made which charges the telegraph company with legal liability for the special loss so occasioned. An intelligent test for such liability was stated in Hadley v. Baxendale, 9 Exchequer, 341. The doctrine in that case has been commended in very many cases, and has been repeatedly recognized as determining the law. of this state in all cases to which it is applicable. It was stated and applied to a case quite like this in the First National Bank of Barnesville v. The Western Union Telegraph Co., 30 Ohio St., 555. The second proposition of the syllabus states the doctrine to be: “In case of failure to deliver a telegraphic message, the company is only liable for such damages as naturally flow from the breach of contract, or such as may fairly be supposed to' have been within the contemplation of the parties, at the time the contract was made.” That the phrases “such damages as naturally flow from the breach of the contract” and “such as may fairly be supposed to have been within the contemplation of the parties” are equivalent statements quite clearly appears from the opinion, in which it is said: “In considering what damages may be supposed to have been fairly within the contemplation of the parties, there was nothing in this dispatch to inform the telegraph company of the serious consequences that are now presented.” It also appears from the conclusion reached upon the facts in that case. Considering the terms of the telegram delivered by the plaintiff in the present, case for transmission to the captain of the steamer at Buffalo, and all the circumstances attending its delivery, what was there to apprise the company that the loss of a cargo or other loss of like character might result from a failure to deliver the telegram? The evidence shows that the managing owner of the vessel had returned from Buffalo but a few hours before he deposited the message for transmission, and it may be that from conversations which he there had with him the captain would have understood, if he had received the telegram, that it referred to a cargo of coal of which he would be advised by telegram the following morning. With that understanding of the significance of the message he would naturally have regarded it as equivalent to a direction to remain at the dock at Buffalo until he should receive the telegram which was to follow. But the rule by which the liability of the company is to be tested requires that such significance should have been suggested to it by the message transmitted or by the circumstances of its transmission, or by another telegram. The message “Will wire you in the morning about coal” suggested no such significance to the company. All of the terms of the message, and all of the circumstances disclosed, would have been answered by assuming it to be a telegram relating to coal for the bunkers of the steamer. Instead of suggesting an order to the captain to remain at the dock until morning, it was rather an assurance that he would remain there to receive the proposed message the next morning, whether the present message was delivered or not. Nothing in the terms of the message then sent, or in any preceding message, or in any circumstances, suggested to the company that the captain was likely to leave the dock, or that results like those for which indemnity is now sought were in any way involved.

Furthermore, presumption cannot be invoked to show that the company was at fault with respect to the deliveiy of the message. Whether it was competent or not, the steamer’s log was introduced in evidence. It showed that it left Buffalo at 3:40 a. m., but is silent as to the time when it left the dock to which th^ message was addressed. That was made more definite by the telegram from the company’s office at Buffalo to its office at Toledo stating that the steamer had left the dock at about midnight before the messenger arrived with the telegram which had been received at the office at 11:10. This was introduced by the plaintiffs perhaps for the purpose of showing the company’s admission that the steamer had left the dock before the receipt of the telegram of the next morning. Although the plaintiffs introduced this evidence as to the time when the steamer left the dock, they would perhaps not have been precluded by it if they had produced evidence to show that the time of its leaving the dock was so much later as to leave ample time for the delivery of the message under all the circumstances. This they did not do. The record shows that the captain had died before the trial, but failure to call one of the mates, or a member of the crew, must be taken as an admission of the plaintiffs that they could not establish a later hour for the steamer’s departure from the Buffalo dock than that fixed by the telegram which they had introduced.

The obligation of the plaintiff in a case of this character to produce evidence to show the failure' of the company to make a timely delivery of a message, should be distinguished from the doctrine of the Telegraph Company v. Griswold, 37 Ohio St., 301, where it was held that in an action for damages for the inaccurate transmission of a message, the inaccuracy having been shown, the burden is upon the company to show that the mistake was not attributable to its fault. The presumption which was there indulged, after prima facie case had been made against the company, may' not be indulged here for the purpose of making a prima facie case.

The judgment of the circuit court will be reversed, and that of the court of common pleas affirmed.

Judgment reversed.

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


author: Davis, J.

text:
    The Railroad Commission of Ohio v. The Hocking Valley Railway Co.

      Powers of railroad commission — Act of April 2, 1906 — Prevention of unjust discrimination in rates — Question of meeting competition — Railroad may lower rates to meet traction line, when — ■ Railroad statute does not apply to proceedings in error.

    1. In proceedings under, “An act to regulate railroads and other common carriers in this state, create a .board of railroad commissioners, prevent the imposition of unreasonable rates, prevent unjust discrimination and insure an adequate railway service,” passed April 2, 1906 (98 O. L., 342), competition is an element to be considered in determining whether rates are reasonable and just; and the fact that a competitive rate is less than th'e rate of the other competing carrier, does not of itself constitute undue and unreasonable discrimination. Such discrimination must be ascertained from a consideration of all the facts and circumstances of each case.
    2. Section 16, par. e of the said statute does not apply to proceedings in error.
    (No. 11402
    Decided March 15, 1910.)
    Error to the Circuit Court of Franklin county.
    Aaron E. Price, a citizen oi the village of Athens, which is situated on the blocking Valley railway, complained to the railroad commission of Ohio, in substance, that the village of Athens is situated on the Hocking Valley railway at a distance of 76.3 miles from the city of Columbus, measured along the right of way of said Hocking Valley railway company; that the village of Logan is located on the line of said railway' at a distance of 49.6 miles from the city of Columbus; that the city of Lancaster is situated on the line of the defendant railway at a distance of 31.5 miles from the city of Columbus; and further complained that the Hocking Valley railway company charges and collects from passengers buying tickets from the village of Athens to the city of Columbus, or reverse, the sum of $1.55, and that the said company charges for a round-trip ticket between Athens and Columbus the sum of $3.10. The complainant further charges that the said railway company makes a practice of selling to any person applying for the same at Logan or Lancaster what is known as a twin ticket which twin ticket entitles the holder to one round trip on any of the passenger trains of the defendant from the station where said ticket is purchased to the other and returh, or entitles two passengers to travel on. any of the company’s passenger trains from either of the stations where the twin ticket is purchased to the other locality; that the said twin tickets are sold at greatly reduced rates and at a much less rate per mile than is charged for tickets between Columbus and Athens and beyond Athens, thereby subjecting the complainant and other citizens of Athens to an undue and unreasonable disadvantage as compared to travelers between Logan and Columbus or Lancaster and Columbus.
    The railway company admitted the allegations of the complainant in regard to the use of the twin ticket system, but denied that it was an unjust or undue and unreasonable preference and advantage, and denied that the company is violating the laws of the state 6f Ohio. The railway company, for further answer, alleged that in order to preserve its local passenger business between such points, and by reason of competition created by interurban electric traction railways, it had reduced its rates for a radius of about fifty miles north and south of Columbus, and in order to accommodate its business between said points had put on additional trains, which since- May 13, 1905, have run and are running between Marion and Logan; and thereby it has increased the train service between those points and intermediate points. Upon hearing of the said complaint before the railroad commission of Ohio, said commission found against the railway company and ordered that the defendant cease from the unjust and unreasonable discrimination, as alleged in the petition of the complainant, ánd as found to exist by the said commission. The Hocking Valley railway company thereupon filed its petition in the court of common pleas of Franklin count)r, as authorized by the statute, averring that the order made by the railroad commission was unlawful and unreasonable and asking that the same be vacated and set aside. The railroad commission filed its answer in said court, and after trial, the court vacated and set aside the said order, and thereupon the railroad commission appealed the case to the circuit court of Franklin county, which court held that the order of the railroad commission was unlawful and unreasonable and rendered the same judgment as had been rendered .in the court of common pleas. The railroad commission prosecutes error to this court seeking to reverse the judgment of the circuit court of Franklin county and also that of the court of common pleas of Franklin county.

      Mr. W. H. Miller, assistant attorney general, and Messrs. Daugherty & Todd, for plaintiff in error.
    We do not contend, and the commission did not find, that the defendant was forbidden to sell commutation tickets or party tickets. In fact, the authority for such tickets is clearly contained in Section 8 of the Ohio railroad commission act. The point we contend for is, and the finding made by the commission was, that the so-called “twin” ticket is not a commutation or party ticket.
    A commutation ticket has been defined by the interstate commerce commission. Railway Co. v. Railroad Co., 3 I. C. C. R., 469.
    In the party-rate ticket case, Commission v. Railroad Co., 145 U. S., 263, it was held that a party ticket for ten or more was legal, but at the conclusion of the opinion the court say it is possible to conceive that the party rate tickets by reduction of the number for whom they may be issued, may be made the pretext for evading the law.
    The basis of the duty of the railroad company towards its patrons and the public generally is well stated in Messenger v. Railroad Co., 36 N. J. L., 407.

      Messrs. Wilson & West; Mr. C. O. Hunter and Mr. Richard Inglis, for defendant in error.
    We contend: That competition between rival lines is a fact to be considered in determining whether a preference or disadvantage thence arising is undue or unreasonable, within the meaning of Section 23 of the railroad commission act. Commission v. Railway Co., 168 U. S., 144; Commission v. Railway Co., 141 Fed. Rep., 1003, 209 U. S., 108; Railway Co. v. Commission, 181 U. S., 1; Railroad Co. v. Behlmer, 175 U. S., 648; Railway Co. v. Commission, 162 U. S., 197; Commission v. Railroad Co., 73 Fed. Rep., 409; Glass Co. v. Railway Co., 13 Interstate Com. Rep., 87.
    That the railway company had the right to reduce its rates to meet the competitive conditions, including the low traction rate and other attractions of interurban travel, even to the extent of going below the competitive rate. In re Canadian Pacific Ry. Co., 8 Interstate Com. Rep., 71.
    That, regardless of the origin or location of the competitive condition, a carrier suffering therefrom has a right to take it into consideration in rate making, wherever and to whatever extent it has a substantial influence.
    And further contend, if the question of profitableness of the reduced rates is material to the determination of their legality, that only the additional cost, if any, of moving the competitive traffic should be considered. The courts have not held that a reduction of competitive rates below the point of profit would render them illegal. The farthest the decisions have gone in that direction is to suggest this as a possible element of illegality. Railway Co. v. Commission, 181 U. S., 1; Commission v. Railroad Co., 93 Fed. Rep., 83.
    Also, real and substantial competition having been proved in this case, that whether an undue or unreasonable prejudice or preference resulted from the reductions made on account thereof, was a question of fact for the trial court.
    The foregoing citations do not exhaust the authorities in support of our propositions; but they are clear cut decisions, on every proposition heretofore advanced by opposing counsel, and adverse to their contention in every particular.
    The}' are pertinent, because Section 23 of the act creating the railroad commission is identical with Section 3 of the interstate commerce act of 1887 (U. S. Compiled Statutes of 1901, Vol. 3, page 3155), and similar in all respects to the English statute on the subject (17 and 18 Victoria, ■c. 31, sec. 2), which were being considered in those cases. There is an exhaustive review of the English cases in the case cited in 73 Fed. Rep., 409.
    Section 4 of the interstate commerce act, also involved in some of the foregoing decisions, is the one forbidding a greater charge for a shorter than for a longer haul, over the same line in the same direction, under substantially similar circumstances and conditions, the shorter being included in the longer. What is said about the consideration of competition under that section is also applicable to the present case; because, as the interstate commerce commission has . said, the practice forbidden by Section 4 “is only a form of unjust discrimination or undue preference, to which, it seems, congress desired to call particular attention, because of its prevalence in certain sections of the country.” Commission v. Railway Co., 105 Fed. Rep., 703. Long and short haul sections. Scofield v. Railroad Co., 43 Ohio St., 571; Commission v. Railway Co., 168 U. S., 144;
      Colliery Co. v. Railway Co., L. R., 11 A. C., 97; Phipps v. Railway Co., L. R., 2 Q. B. (1892), 229; Railway Co. v. Commission, 181 U. S., 1; Railroad Co. v. Behlmer, 175 U. S., 648.
   Davis, J.

The railroad commission seems to have based its - conclusions upon the proposition that, under the railroad commission act (98 O. L., 342), a railroad is not authorized to lower its schedule of rates solely for- the purpose of meeting competition; and that, even conceding to the railroad such right, a railroad cannot reduce its rate between competing points below the total rates of its competitor for the full distance between such points. In this, we think, the commission was clearly in' error.

A careful reading and analysis of this statute has not disclosed to us any requirement that the rate per mile between any two points on a railroad shall be uniform with the rate per mile between any other two points on the same railroad. The only limitation upon rates is the broad one that they “shall be reasonable and just, and every unjust and unreasonable charge for such service is. prohibited and declared to be unlawful.” Sections 3 and 23. Under this qualification the lawfulness or unlawfulness of the rate must be determined by all the circumstances related to each particular case. By universal consent self-defense is recognized as a natural right of every individual and of every collection of individuals. It follows, therefore, that whatever one does within the limits of protection bf his person, or property, or business is just and reasonable. In other words, when competitive conditions are such as to really threaten one’s property or business, they must necessarily be regarded as justifying retaliatory action, because the same is, by every instinct of man, just and reasonable.

But it is contended on the part of the commission that, conceding that competition is a factor to be reckoned, it should not be permitted to go below the competitive rate. This contention is not sound, because it is seldom that competition consists wholly in the rate. In the case at bar, the competition is between a steam railroad and an electric interurban road. For limited distances the former is at a disadvantage when carrying at the same rate as the latter. The comfort of passengers on the interurban roads is as great as on the steam railroad, if not greater; the frequency of service is in favor of the interurban; the speed on moderate distances is not greatly different; and the ratio of operating expenses to receipts is probably in favor of the interurban. The record seems to show that notwithstanding the competitive rate, the amount of travel has increased on both lines; so that the competition has not been injurious to the traction line. Upon the whole case we see no reason to disturb the findings of the court of common pleas and of the circuit courtj that the rates complained of are not unjust, unreasonable or unduly discriminatory. This is all that we deem it profitable to say upon the merits of the case. These matters were fully considered in the court of common pleas, 5 Nisi Prius Rep. (N. S.), 265.

It is suggested in the brief for the commission that Section 16, Paragraph e of the railroad commission act gives prima facie effect to the findings of the commission; and that such finding should stand, unless clear and unmistakable evidence should require a reversal thereof. That is true so far as concerns the burden of proof, as distinguished from what may be called the burden of the issue. The statute applies to the determination of facts upon evidence; but it does not countervail the well settled rule, that in proceedings in error, the presumption is in favor of the judgment and that the court below applied the .law correctly. The judgment is

Affirmed.

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


author: Spear, J.

text:
    Gantz v. Gease, Guardian, et al.

      Suit in common pleas upon guardian’s bond — To recover probate court judgment — Defendant surety interposes answer and cross-petition — Averring judgment in excess of amount due• — Court not deprived of power to grant relief — Issue triable tp court, not jury — Error to dismiss defendant’s appeal, when.

    1. Where, in a suit brought in the court of common pleas upon a guardian’s bond to recover the amount of a judgment of the probate court rendered against the guardian upon the seltle'ment of his accounts, the defendant surety interposes an answer and cross-petition averring that the amount of the judgment is greatly in excess of the amount actually due from the guardian to his ward, and that the judgment was obtained by concealment and fraud by the guardian, the mere fact that the pleading fails to deny the amount so adjudged due in its entirety, does not deprive the court of power to grant relief if the facts so charged by the pleading are found upon trial to be true.-
    2. The issue thus tendered is triable of right to the court and not to a jury.
    3. From a judgment rendered upon the trial of such issue either party has a right to appeal to the circuit court.
    4. It is error .in such case for the circuit court, on motion of plaintiff, to dismiss the defendant’s appeal.
    (No. 11275
    Decided March 15, 1910.)
    Error to the Circuit Court of Franklin county.
    The case-is stated in the opinion.

      Messrs. Marriott, Belcher & Conner, for plaintiff in error.
    In the case at bar the common pleas court found against the plaintiff in error bn the issues made in his cross-bills in equity, and proceeded to- enter judgment upon the petitions in the respective cases, which was right, and about which we make no complaint, if plaintiff in error was rightfully defeated; but we contend plaintiff in error had the right to appeal from the decree of the common pleas court against him on his equitable causes to the circuit court, in which, had it found in his favor, it should have reduced the judgment of the common pleas court in each case to the extent of its finding, in his favor. This is precisely in accord with the opinion of this court in Buckner v. Mear, 26 Ohio St., 514; Massie v. Stradford, 17 Ohio St., 596; Taylor v. Leith, 26 Ohio St., 428.
    In our appeals to the circuit court in said causes, plaintiff in error proceeded in exact accord with Buckner v. Mear, 26 Ohio St., 514. Therefore, it was the duty of the circuit court to overrule said motions to dismiss, and it should have taken the evidence in support o'f defendant’s equitable causes, and having found in his favor thereon, it should have modified said judgments in accordance therewith.

      Buckner v. Mear, supra, has been followed and approved by this court in Sheeful v. Murty, 30 Ohio St., 52; Dodsworth v. Hopple, 33 Ohio St., 118; Rankin v. Hannan, 37 Ohio St., 119; Gill v. Pelkey, 54 Ohio St., 359; McAlpin Co. v. Finsterwald, 57 Ohio St., 556; Burckhardt v. Burckhardt, 36 Ohio St., 281; Gladieux v. Parish, 17 C. C., 703; Bryant v. Swetland, 48 Ohio St., 205; Sallady v. Webb, 2 C. C., 553; Massie v. Stradford, 17 Ohio St., 59.

      Mr. Fred C. Rector, for defendants in error.
    Gantz prosecuted no error or appeal to the judgment of the probate court.

      It was held in Tootle v. Clifton, 22 Ohio St., 247, that where the only issue is upon the truth of immaterial matter it is not error to enter.judgment upon the pleadings. It will be observed that the fraud alleged by the defendant, Gantz, is simply the conclusion of the pleader. The last paragraphs of the answer and cross-petition might have been stricken out on motion as immaterial.
    For a review of the authorities relied upon by ns in support of the above contention the court is referred to Woodward v. Curtis, 19 C. C., 15. Attention is also called to the following authorities: Coates v. Bank, 23 Ohio St., 415; Darst v. Phillips, 41 Ohio St., 514; Vanfleet on Collateral Attack, section 551, page 579; Braiden v. Mercer, 44 Ohio St., 339; 2 Black on Judgments, sections 634, 644.
    Let it be remembered that Mr. Gantz does not ask complete relief as against the judgment of the probate court. He simply says that it is too much and that he ought not to be required to pay the amount prayed for. Even equity will not relieve against a judgment alleged to have been obtained' by fraud where the relief asked is merely a reduction of the damages. 1 Black on Judgments, section 368; Babcock v. McCamant, 53 Ill., 214.
   Spear, J.

The object of the. proceeding in this court is to obtain a reversal of the iudgment of the circuit court dismissing an appeal in the case of Henry C. Gease, guardian of the estate of John G. Brown, an infant, against Tohn R. Brown and the plaintiff in error, Albert L. Gantz.

The appeal was from the judgment of the court of common pleas in' a case in which the guardian was plaintiff and John R. Brown and Gantz were defendants. In that case the plaintiff pleaded that he was the guardian of John G. Brown, an infant; that in the year 1894, the defendant John R. Brown was duly appointed and became qualified as guardian of the person and estate of said John G. Brown, then an infant; that he continued such guardian until June, 1904, when he resigned and thereupon filed his final account in the probate court showing a balance due the estate of $1,418.05. On July 11, 1904, the account was duly confirmed by the probate court and a judgment duly rendered by that court finding the amount to be correct and to be due the estate of said infant.

Further allegations in substance are, that on June 16, 1894, said John R. Brown as such guardian (and of one Howard Brown) duly executed his bond with said Gantz as surety in the sum of twenty-five hundred dollars, which bond^was duly approved by the probate court. Said bond was in the usual form given by guardians of infants, and was duly recorded in the proper record of the probate court. Said John R. Brown, has not faithfully discharged his duties as guardian and has failed in this, to-wit: To deliver over to plaintiff as guardian any portion of said sum, and has refused to so deliver although- demand has been made on him therefor. Demand has also been made on said Gantz for said sum, but he has refused to pay any portion thereof, and there is now due plaintiff said amount, with interest from July 11, 1904, for which judgment is prayed.

By his answer Gantz specifically admitted all the averments of the petition saving and excepting that there i'S now due from defendant the sum of money claimed. As cross-petition he in substance averred that he was not a party to the proceedings in the probate court set out in the petition; that at the time John R. Brown, defendant, filed his final account, and at the time he filed his prior accounts, he was not indebted to said estate in a sum to exceed six hundred dollars; that at that time said Brown, having' his property which he owned at that time largely covered by mortgage, and believing by reason- thereof that the amount of his indebtedness as such guardian could not be collected of him, and believing that a much larger sum than his actual indebtedness to said infant, who was and is his son, could be collected of this defendant upon said bond, and with the purpose and intent of fraudulently benefiting his said son at the expense of defendant, he fraudulently included in his first account and in his final accounts a large sum of money in excess of the amount actually due to the extent of about seven hundred dollars, and fraudulently procured the confirmation and settlement o.f said accounts by not disclosing to the court a sum so excessively included therein, to the great damage of defendant, the said Brown being then and now insolvent. Defendant could not under the laws of Ohio file exceptions to said accounts in the probate court, and cannot now proceed by action of any character in said court, to cause the settlements therein to be opened up and corrected, and thus relieve himself under said bond. Defendant has no adequate remedy at law for relief in the premises against the aforesaid fraudulent acts of said Brown, and no relief whatever except in a court of equity. An appropriate prayer for, relief followed.

It is to be noted as essential features of the case that the rendition of the judgment in form as stated is admitted, and that no objection is taken to the demand of the plaintiff, guardian, other than respecting the amount claimed to be in fact due, it being conceded that unless the claim of the defendant set up in his cross-petition is maintained, the claimed liability against him as surety on the bond follows, for although he was not in fact a party to the proceedings in the probate court, yet the judgment is conclusive against him as to amount as well as in other respects, while it remains in force. Braiden v. Mercer, 44 Ohio St., 339. And there being as yet no .judgment against Gantz to be set aside, his right of action does not depend upon the provisions of section 5354, Revised Statutes and following, which give the power to courts to set aside their own judgments and which direct the conduct of trials of that character.. Hence the decisions bearing upon that mode of obtaining relief of which the case of Watson v. Paine, 25 Ohio. St., 340, is a notable example, do not control the case at bar. But the plaintiff in error’s right to appeal to a court of chancery for relief rests upon general equitable principles. The rule is universal that fraud is one of the grounds upon which equity will grant relief, and injunction against the enforcement of a judgment which has been obtained by means of fraud is a familiar exercise of the powers of a court of equity. A judgment which is against conscience, one by which fraud has been made to work injustice and wrong and where the injured party has had no opportunity of making defense, or could not make it because of some rule of strict law, and where adequate relief cannot be afforded by the court where such judgment was obtained, and where timely application is made to the equity court, will be enjoined and if necessary vacated. And one significant badge of fraud is the procuring of a judgment by artifice or concealment by the successful party, conduct which is charged in the case at bar.

The first question presented by the record is as to the character of the answer and cross-petition. Does it plead merely an equitable defense, or does it embody a pleading in equity calling for affirmative relief? We think it is clearly of the latter character. It pleads, so far as the pleading goes, an equitable cause ■ of action, and, if sustained would require at the hands of the court a setting aside of the judgment of the probate court so far as it affects Gantz on the ground of fraud, involving, it is true, an inquiry as to the actual amount due. In view of the fact that the surety is conclusively bound by the judgment while it remains unimpeached, his only remedy was in a court of equity and by a proceeding in equity, and this consideration would have justified an original action in equity to overcome the presumption of the judgment and procure its cancellation. This situation required a trial of the issue tendered by the cross-petition, for, unless that should be sustained, there was nothing in the way of a judgment for plaintiff. Plaintiff’s petition, it is true, tendered, a jury issue, but, there being no defense other than the cross-petition, there was nothing at that stage of the case for a jury to try. The defendant, therefore, unless prevented by a consideration hereafter to be considered, was entitled to have his cause tried by the court as a proceeding in equity. The rule is well established in this state that although the plaintiff’s cause may be triable by a jury, yet where new matter set up in. the answer constitutes an equitable cause of action, which, if established, will extinguish or supersede the cause made in the petition, the issues taken on such new matter are triable by the court, and this is so whether issue is taken on the averments of the petition or not. Buckner v. Mear, 26 Ohio St., 514. Gill v. Pelkey, 54 Ohio St., 348, affords a familiar example. The suit was in ejectment and the answer alleged a mistake in a certain deed which was essential to the plaintiff’s title, and sought to have such deed corrected. In commenting upon the case Bradbury, J., in the opinion clearly states the rule thus: “True, the cause of action disclosed in the petition being simply for the recovery of specific real property and damages for its wrongful detention, was triable of right by a jury. The answer took issue on the averments of the petition, and to that extent was a defense only. In setting forth the circumstances of the mistakes of which it complained, and in praying their correction, however, the answer is a cross-petition which contained not a technical defense, but an independent equitable cause of action constituting a cross demand in favor of the defendants, the effect 'of which, if established, would extinguish the plaintiffs’ cause of action by destroying their deed and annulling the proceedings of the probate court in as far as either affected the title to the parcel of land in controversy. If the defendants, instead of setting forth the facts respectihg these alleged mistakes in a cross-petition in an action at law, had made them the subject of an independent action for relief, the equitable character of the cause of action would be apparent to every mind at all familiar with the distinctions between legal and equitable rights or causes of action. Tn the nature of things, a cause of action, which, if set forth by the plaintiff in a petition, would be properly denominated equitable, would retain itp name and character, although set forth by a defendant in an answer as a cross demand. Tts character should depend upon the nature of the relief it establishes in favor of the party pleading it, and not upon the relation, as plaintiffs or defendants, which the parties bear to each other in the action. As the character, whether legal or equitable, of a cause of action does not depend upon the relation, as plaintiff or defendant, borne to the action by the party asserting it, so neither should the mode of trial depend upon such relation. Whatever mode of trial is appropriate to the nature of the demand should be awarded to the parties, irrespective of their relations as plaintiff or defendant. Therefore, the statutes upon the subject should be construed accordingly, if the language they use permits such construction.”

Here, as we have already found, the primary issue was that tendered by the cross-petition, for while the defendant denied the amount due, nevertheless that denial was based wholly on the allegations as to fraud to support it, and if upon trial they should fail, the whole contention of defendant would be defeated.

The remaining question is: Does the fact that the cross-petition attacks only in part the amount due as shown by the judgment of the probate court take this case out of the general rule? The learned circuit court seems to have answered this question in the affirmative, for, in sustaining* the motion of the guardian to dismiss Gantz’s appeal, that court held that the matter set forth in the cross-petition constitutes an equitable defense to a part only of the amount claimed in the petition, thus admitting that the plaintiff is entitled to recover something, but not the full amount claimed. If the cause of action stated in the cross-petition would, if successful, extinguish that of the petition, and completely end the case, then upon the issue made by the cross-petition the cause would be appealable.

Counsel for defendant in error insists that the averments of the cross-petition are not sufficient in law to constitute an impeachment of the judgment, but the circuit court seems not to have doubted the sufficiency' of the pleading save only on the ground that it does not go to the entire amount appearing by the judgment to be due. We think the pleading is sufficient. But we cannot agree with the conclusion reached by that court. A party’s right to the interposition of a court of equity should depend upon the character of Iris claim, and cannot, we think, be madv. to depend upon the size of it. Nor can we see that the application of the general rule would work any injustice or hardship to the other party in the case. The inquiry as to the amount actual^ due would be the same in kind as though it were directed to the entire amount, differing only in degree, and hence the guardian has every right preserved to him that he would have if the complaint had gone to the entire amount. Nor is our conclusion inconsistent with the decisions of our courts affecting the question. The rule cited to us by the learned counsel himself is that if the equitable cause pleaded will supersede the judgment attacked, then the matters so pleaded will be of right triable by the court. Let us take that test. On. proof of the alleged fraud in obtaining the judgment, the judgment ought to be and would be set aside so far as the same affects Gantz, that is superseded, and, whatever the guardian should recover would be by virtue of a new judgment; if on- the other hand the defendant should fail to make the requisite proof, his cross-petition will be dismissed and then would inevitably follow a judgment for the plaintiff on the pleadings.

Attention is called by counsel to Black on Judgments, section 368, where the author observes: “Thus equity will not relieve agairist a judgment alleged to have been obtained by fraud where the relief asked for is merely a reduction of the damages.” Two cases are cited by the author in support of the text. One is Essex County v. Berry, 2 Vt., 161. In this case judgment had been rendered by default and the only ground for setting aside the judgment which the court found in the-plaintiff’s favor as a fact, was the failure of a letter written to an attorney to appear and defend to reach him in time. As to this the court remarks that the late arrival of the letter “affords no ground for relief here. It was an accident, no doubt, that it did not arrive sooner, and just such an accident as common prudence would have guarded against.” The court does, however, assign, as an additional reason for refusing relief, the rule as stated in the text. Murdock v. De Vries, 37 Cal., 527, cited by the author, we think entirely fails to support the text, and the Vermont case is the only holding we have found which does support it. To the contrary is Babcock v. McCamant, 53 Ill., 214. The first paragraph of the syllabus is: “Where a judgment was obtained and execution issued and was levied on property sufficient to satisfy the debt, but was returned by order of the plaintiff, and subsequently the record was fraudulently changed and the amount of the judgment increased without consent of the judgment debtor, and a second execution issued thereon: Held," a court of equity had jurisdiction to interpose by injunction to prevent the collection and relieve against the fraud.” No complaint seems to have been made of the original judgment.

Our conclusions are that the cross-petition .states a valid cause of action in equity, one which the party might have made the subject of an original petition in a cause instituted by him; that the issue thus tendered was an equitable issue triable of right to the court and not to a jury, and that upon such issue the right of apoeal existed. Hence the dismissal of the appeal of the circuit court was error. That judgment will be reversed and the cause remanded with direction to overrule the motion to dismiss the appeal. The inquiry upon the cross-petition will involve the hearing of evidence respecting the actual amount due from the guardian to the estate of his ward, for that consideration is necessarily intermingled with the inquiry as to fraud. And, applying the long-established rule of equity that where a court of chancery has obtained jurisdiction of a cause for one purpose, it may retain it generally and proceed to final determination of all matters at issue (Oliver v. Pray, 4 Ohio, 195; Goddard v. Leech, Wright, 476; 1 Pomeroy’s Equity, sec. 181; 1 Beech Eq. Jur., sec. 21; P Story’s Eq. Jur., 70), the circuit court will hear and dispose of the entire case.

Reversed.

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


author: Crew, J.

text:
    Bray v. Darby, Administrator de bonis non, ETC.

      Claim allowed by executor — As valid against estate — Subsequently disallowed by successor of executor — Four years’ statute of limitations runs from rejection of claim — Section 6113, Revised Statutes.

    Where a claim presented by a creditor to the executor or administrator of an estate, is accepted and allowed by such executor or administrator as a valid claim against the estate which he represents, but is subsequently disallowed and rejected by the successor of the executor or administrator who allowed it, the four years! statute of limitation provided by Section 6113, Revised Statutes, begins to run in such case only from the time of the rejection of said claim. (Stewart, Admr., v. McLaughlin, Admr., 47 Ohio St., 55S, approved and followed.)
    (No. 11333
    Decided March 15, 1910.)
    Error to the Circuit Court of Hamilton county.
    On August 17, 1907, the plaintiff in error, James A. Bray, filed a petition in the court of common pleas of Hamilton county, Ohio, against Thomas H. Darby as administrator de bonis non of the estate of George Schwartz, deceased, which petition, omitting the caption, verification and the exhibit attached thereto, was in the words and figures following, to-wit:
    “Plaintiff states that on the — day of March, 1891, George Schwartz, late of the county of Hamilton and state of Ohio, died intestate: that on the 13th day of May, 1891, Nathan Schwartz was duly appointed and qualified by the probate court of said county, as the administrator of the estate of said George Schwartz, deceased, but failed to give notice of such appointment by publication, as required by law, and continued to act as such administrator up to the time of the death of said Nathan Schwartz on or about- 1906; that on dr about June 1, 1891, he presented to said administrator for allowance his claim against said estate, which is the identical claim set forth herein, and-that said claim was duly allowed by said administrator as a valid claim against said estate; that on the 22d day of July, 1907, the defendant, Thomas H. Darby, was duly appointed and qualified by said court as the administrator de bonis non of the estate of said George Schwartz, deceased, and is still acting as such administrator, and this action is brought against him as such administrator.
    “For cause of action, this plaintiff states that there is justly due him from the defendant, Thomas FI. Darby, administrator of the estate of George Schwartz, deceased, the sum of eight hundred and fifty-five dollars and ninety cents ($855.90) on an account for moneys loaned and advanced to said George Schwartz during his life-time from time to time, a statement of which is hereto attached marked 'Exhibit A’ and made a part herewith, which sum plaintiff claims with interest thereon from Anri 1, 1891.
    “PlamFff further states that on or about the 31st day of Julv, 1907, he presented to the defendant, Thomas P. Darby, administrator de bonis non of the estate of George Schwartz, deceased, a written statement of the claim as aforesaid, duly verified, and demanded endorsement of allowance thereon, but that said defendant on or about said date of July 31, 1907, rejected said claim and refused to endorse his said allowance thereon.
    “Wherefore, plaintiff prays judgment against the said defendant as administrator as aforesaid, for the sum of eight hundred and fifty-five dollars and ninety cents ($855.90) with interest from April 1, 1891^ and for his costs and that the defendant may be ordered to allow said claim as a valid claim against said estate.”
    For answer, and by way of denying the plaintiff’s right to maintain said action, Thomas H. Darby, administrator, pleaded, as and for his defense thereto, “that the plaintiff did not commence any action upon said claim, or to recover thereon, within four years after the qualification and giving bond by said Nathan Schwartz as such administrator as required by the statute in such case made and provided, nor at any other time until the filing of this action.” To this answer plaintiff filed a general demurrer which was overruled by the court of common pleas, and thereupon, the plaintiff not desiring to plead further, judgment^ was rendered upon the pleadings in favor of the defendant administrator. This judgment was affirmed by the circuit court. The plaintiff in error now asks this court to reverse the judgments of the courts below.

      Mr. Charles C. Benedict, for plaintiff in error.
    The allowance of a claim against an estate by an administrator arrests the running of the statute of limitations, unless the claim is subsequently disallowed, when time would begin to run from such disallowance, and would be controlled by the special statute.
    The allowance of a claim by an administrator is equivalent to a judgment. Gilbert’s Admr. v. Little, 2 Ohio St., 160; Stewart, Admr., v. McLaughlin, Admr., 47 Ohio St., 555; Taylor v. Thorn, Admr., 29 Ohio St., 569; Thomas v. Chamberlain, 39 Ohio St., 112; Section 6120, Revised Statutes.
    In further support of the proposition that the statute of non-claim does not run against an allowed claim, we refer to the recent decision of this court in the case of Speidel, Admr., v. Phillips, 78 Ohio St., 194.
    Anticipating a reference by the defendant in error to a rule stated in Granger’s Admr. v. Granger, 6 Ohio, 35, that when the statute of limitations logins to run against the intestate in his lifetime, it will run to its completion without interruption by the death, we submit that that rule has been so modified since that decision in 1833 by the subsequent Ohio decisions already referred to, and by the enactment of Sections 6066, 6097, 6108 and others, forbidding suits against administrators for certain periods of time, suspending the operation of the general statutes of limitations, and providing special statutes in the administration of estates, that the rule no longer prevails. - The special statutes of limitations will control (see Section 4976) as do all special provisions when in conflict with general provisions. Hoiles v. Riddle, Admr., 74 Ohio St., 173; Eddy, Exr., v. Adam, Admr., 145 Mass., 489; Insurance Co. v. Barber, 50 Conn., 568.

      The former administrator failed to give notice by publication of his appointment as required by law, and can not therefore claim the benefit of the special statute of limitations contained in Section 6113, Revised Statutes.
    Section 6088 requires that every executor or administrator shall, within three months after giving bond, give notice of his appointment by publication, for three consecutive weeks. 1 Rockel Ohio Probate Practice, Sections 543, 552, 668; 2 Woerner Am. Law Administration, Sections 384, 385; Sections 6088 to 6127, Revised Statutes.
    The following cases from states where statutes prevail similar to our own, on this point, hold that failure to give notice by publication is fatal to the plea of the statute of limitations. Gardner v. Callaghan Estate, 61 Wis., 91; Gilliam, Exrx., v. Willey, 1 Jones Eq., 128; Cox v. Cox, 84 N. Car., 138; Donnerberg v. Oppenheimer, 15 Wash., 290; Hardy v. Ames, 47 Barb., 413.
    The cases cited below hold further that notice must not only be given as required specifically by the statute, but that same must be pleaded in order to sustain the defense of the statute of limitations. Wiggins v. Lovering, Admr., 9 Mo., 262; Munday v. Lee per, Admr., 120 Mo., 417; Love v. Ingram, 104 N. Car., 600; Valentine v. Britton, 127 N. Car., 57; Easton v. Somerville, 111 Ia., 164.
    The decisions of our supreme court as to the necessity of notice are not numerous and are not directly decisive of the point, but the following cases indicate that notice, as required by law, must be given before the special limitations shall operate to bar the claims of creditors. Ardrey v. Shell, 77 Ohio St., 218; Slatterly v. Doyle, 180 Mass., 27.

      No section of the statutes of Ohio provides for waiver of this notice. “Mere knowledge” is not equivalent to “legal notice.” Knowledge of the plaintiff in this case that Nathan Schwartz was the administrator of the estate of George Schwartz, and his dealing with said administrator did not relieve the administrator of the necessity of giving the “notice required by law” and did not satisfy. the statutory requirements in order—
    1st. That complete jurisdiction in the administration of the estate might be acquired, as claimed by Rockel; and
    2d. That the special statute of limitation might be set into motion to run against creditor’s claims.
    These statutes of limitation should be construed with reasonable strictness, since they take away existing rights, and should be construed in favor of the rights sought to be defeated thereby. Wood on Limitations, 6; Bradford v. Andrews, 20 Ohio St., 208; Calanani v. McClure, 47 Barb., 206; Elliot v. Cronk’s Admr., 13 Wend., 35.

      Mr. Thomas H. Darby, for defendant in error.
    Section 6113, Revised Statutes, bars this action because it was not instituted within four years from the appointment and date of the bond of the administrator. Sections 6097 and 6108, Revised Statutes.
    The claim herein made not only does not militate against the holding of this court in Speidel, Admr., v. Phillips, 78 Ohio St., 194, but that case is rather confirmatory of our view; in that after the allowance of a claim within the period of the statute, and its subsequent disallowance at the instance of the heir after the expiration of six years from the accruing of the cause of action, this court held that the claimant was still entitled to six months after notice of such rejection, within which to bring his suit.
    This is a case in which the statutes as they stood must be construed in the light of the policy of the law, which requires diligence in action, and the speedy settlement of decedents’ estates.
    As to the effect of Section 6113, see Shahan, Exr., v. Swan, 48 Ohio St., 25; 2 Woerner Am. Law Administration, Section 400; Knowles v. Whaley, 15 R. I., 97.
    The giving of notice by publication was effectually waived by Bray, and in this case want of such notice does not affect the operation of Section 6113, Revised Statutes. Ardrey v. Shell, 77 Ohio St., 218.
    This is not a new question, but has been considered by courts of other states, and where the question has arisen, it has been uniformly held that actual notice and exhibiting the demand, and dealing with the administrator as such by the creditor, are equivalent to legal notice. Collamore v. Wilder, 19 Kans, 67; Bush v. Adams, 25 Fla., 809; Robertson v. Agricultural Co., 28 Miss., 237; Ricketson v. Richardson, 19 Cal., 330; Janin v. Browne, 59 Cal., 37; Russell v. Lane, 1 Barb, 519; Warren v. Hendricks, 66 Pac. Rep, 607; Pepper v. Sidwell, 36 Ohio St., 454.
   Crew, J.

It is undisputed in this case that the claim in suit was, on or about June 1, 1891, duly presented to Nathan Scnwartz, administrator of the estate of George Schwartz, deceased, and by him as such administrator duly accepted and allowed as a valid claim against the estate of said decedent. Nathan Schwartz, administrator, died in 1906, and thereafter in the further course of administration, to-wit: on July 22, 1907, Thomas H. Darby was duly apoointed by the probate court of Hamilton county administrator de bonis non of the estate of said George Schwartz. On or about July 31, 1907, James A. Bray, his said claim not having been paid, presented the same to Thomas H. Darby, administrator de bonis non as aforesaid, and requested that he indorse his allowance thereon as a valid claim against the estate of said George Schwartz, deceased. This, said administrator refused to do, and then and there positively rejected said claim. Suit was thereafter commenced thereon by the plaintiff in error, James A. Bray, on August 17, 1907, within seventeen days after the. rejection of said claim by the administrator de bonis non. .The only defense pleaded or relied upon by the administrator de bonis non in this case was the four years’ statute of limitations prescribed by Section 6113, Revised Statutes, as in force prior to April 8, 1898, which section reads as follows: “No executor or administrator, after having given notice of his appointment, as provided in this chapter, shall be held to answer to the suit of any creditor of the deceased, unless it be commenced within four years from the time of his giving bond as aforesaid, excepting in the cases hereinafter mentioned. Provided, however, that any creditor whose cause of action shall accrue or shall have accrued after the expiration of four years from the time that the executor or administrator of such estate shall give or shall have given bond according to law, and before such estate is fully administered, may commence and prosecute such action at any time within one year after the accruing of such cause of action, and before such estate shall have been fully administered; and no cause of action against any executor or administrator shall be adjudged barred, by lapse of time, until the expiration of one year from the time of the accruing.thereof.” If this statute applies to the present case and is to be construed as requiring a creditor whose claim has been presented to and allowed by. an administrator but not paid,, to bring suit on such claim within four years from the date of the administration bond or be forever barred, then the demurrer to defendant’s answer was properly overruled; but unless such is the proper interpretation and necessary effect of this statute, then said demurrer should we think have been sustained. It is admitted in this case that at the time the claim in suit was presented to and allowed by the former administrator, Nathan Schwartz, the same was neither - barred by the four years’ limitation prescribed by Section 6113, nor by any other statute of limitation. The claim was due April 1, 1891. Nathan Schwartz was appointed administrator May 13, 1891, and the claim was presented to and allowed by him as administrator June 1, 1891; less than one month after his appointment. Under these circumstances, and upon this state of facts, the provisions of Section 6113, Revised Statutes, may not properly be invoiced, because wholly without application. It being the well settled rule in this state, that the allowance of a claim by an executor or administrator suspends the right of the creditor to maintain an action thereon, and thus arrests the running of the statute of limitations. In Taylor et al. v. Thorn, Admr., 29 Ohio St., 569, this court said: “The right to maintain an action on claims against an estate presented to and allowed by the administrator is prohibited by the statute. The creditor is authorized to sue where his claim, on being presented for allowance, is rejected or disallowed by the administrator, but where its validity is acknowledged, and its allowance by the administrator as a just claim against the estate is secured, no action will lie upon it. There is nothing, in such case, for the statute to operate upon. * * * Statutes of limitation affect the remedy only. They do not extinguish the debt nor affect its validity. They merely withhold from the owner thereof the right to employ remedial process for its collection; and where there is no right to such process for the statute to operate upon, where the right to resort to the courts for the collection of the debt is taken away, the statute ought not, and was not intended to apply. Trustees of Greene Township v. Campbell, 16 Ohio St., 16.” Numerous authorities are then cited by Boynton, J., and. by way of deduction and conclusion therefrom, he says: “We therefore hold, that as between the estate of a deceased debtor and its creditors, the statute of limitations ceases to run against the claims of the latter, upon their presentment to and allowance by the executor or administrator.” By Section 6108, Revised Statutes, a creditor whose claim has been allowed by an executor or administrator is prohibited from bringing suit thereon “until after the expiration of eighteen months from the date of the administration bond or the further time allowed by the court for the collection of the assets of the estate;” which allowance or extension of time may, under the provisions of Section 6066, Revised Statutes, be for a period of five years from and after the date of the administration bond. Therefore to adopt the interpretation of Section 6113 contended for by counsel for defendant in error herein, would be to hold that a creditor who by one section of the statute is, or may be, prohibited from bringing suit on his claim within five years from the date of the administration bond, must, by force of the provisions of another section of the statute in the same title and chapter, bring suit thereon within four years from the date of said bond or be forever barred. Obviously no' such result was contemplated or intended by the legislature. In Thomas v. Chamberlain, 39 Ohio St., 112, this court, considering the question of whether or not the statute requiring a creditor of an estate to bring action on his claim within six months after its rejection by the administrator, applies to a case where the claim has been duly allowed by an administrator, and is thereafter rejected by the successor of the administrator allowing it, says, through Mcllvaine, J., at page 121: “The allowance of a claim when exhibited or presented to an administrator for allowance is not conclusive against the estate as to its validity. It may afterwards be disputed and contested by the administrator, but we think, the statutes limiting the right of action to six months after the claim is' rejected does not apply to a case where the claim is allowed upon presentation, and afterwards disputed; but only to cases where it is disputed oiré jected upon presentation for allowance. The statute is (Sec. 6097, Rev. Stat.) : Tf a claim against the estate of a deceased person be exhibited to the executor or administrator, before the estate is represented insolvent, and be disputed or rejected by him, and the same shall not have been referred, the claimant shall, within six months after such dispute or rejection, if the debt * * * be then due * * * commence suit for the recover)' thereof or be forever barred.’ It would seem clear, that such suit must be commenced within six months after the rejection, although an administrator dc bonis non may, during that period, have succeeded. If the estate be entitled to the advantage resulting from rejection of a claim in such case, why should it not be bound by an ‘allowance’ made by a former administrator? We think it is so bound, and therefore the rejection of the claim ’in this case by the defendant had no other effect upon it, than would a subsequent notice by Sutherland, after he allowed the claim, of his intention to contest it. An administrator de bonis non takes the estate from his predecessor in the same condition he left it. All acts lawfully done in the discharge of his trust by the former administrator are binding on his successor. The law recognizes a privity of estate between them, and it follows, that the case, in this respect, stands exactly as if the same administrator who allowed the claim had afterwards repudiated it.” Again, in the still later case of Stewart, Admr., v. McLaughlin, Admr., 47 Ohio St., 555, the precise question presented by the record in the present case was directly determined by this court, and it was there held that: “Where a claim is presented by a creditor to the administrator of an estate and is allowed, which is after-wards disallowed and rejected by a successor of the one that allowed it, the four-years statute of limitation provided by Section 6113, Revised Statutes begins to run, in such case, only from the time of the rejection of claim.” See also Admr. of Gilbert v. Admr. of Little, 2 Ohio St., 157, and Speidel, Admr., v. Phillips, 78 Ohio St., 194.

It follows, necessarily we think, from the foregoing decisions by this court, that the statute of limitations pleaded by the administrator de bonis non in the present case did not constitute a defense, and therefore the demurrer to the answer should have been sustained. This conclusion makes it unnecessary to consider or determine in this case the effect of the failure of Nathan Schwartz to give notice of his appointment as administrator, for such fact becomes wholly immaterial.

Judgments of the circuit court and of the court of common pleas reversed, and cause remanded to the court of common pleas.

Judgment reversed.

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