author: Dickman, J.

text:
    Hickey v. Railway Company.

      Deed Poli — Undertaking by First Grantee, Obligatory upon Subsequent Owner — Liability of First Grantee.

    Where a railway company makes a deed poll of land in fee, along which its right of way is located, “ subject to the condition that the said grantee, his heirs and assigns, shall make and maintain good and sufficient fences on each side of the right of way of the railway as now located and built, ® * * which condition and obligation shall be perpetually binding on the owners of the land.” Field:

    NThat the grantee, by accepting the deed, will be deemed to have ^entered into.an express uiidertaking to perform the condition contained in the deed, and such undertaking will run with the land, and become obligatory upon a subsequent owner by purchase from the grantee of the company.
    2. After the grantee of the company has ceased to be the owner of the land, by conveying the same in fee to another, the company will not have a right of action against its grantee, for non-performance of the condition to make and maintain fences between the right of way and the land sold.
    (Decided January 23, 1894.)
    Error to the Circuit Court of Cuyahoga county.
    The Lake Shore and Michigan Southern Railway Company, the defendant in error, commenced the original action against James Hickey, the plaintiff in error, in the court of common pleas of Cuyahoga county. The original petition filed by the company reads as follows:
    “The plaintiff says it is a corporation duly or- . ganized under the laws of Ohio, and, as such, owns and operates a line of railroad from Cleveland, Ohio, to Toledo, Ohio; that prior to December 30, 1874, it owned in fee-simple three hundred and eighty-two and 20-100 acres of land, situate in the township of Olmstead, Cuyahoga county, Ohio, through and along parts of which is and was located its line of railroad and right of way; that said lands were fully described in a certain deed by it executed and delivered to the defendant, James Hickey, on or about December 30, 1874, and recorded in book 238, pages 445 and 446 of Cuyahoga county records, to which reference is here had; that said defendant went into possession of said lands under said deed, and have ever since been occupied by him or his vendees; that said deed so delivered to and accepted by said defendant contained the following condition and agreement:
    “ ‘This conveyance is made subject to the condition that thesaid James Hickey, his heirs andassigns, shall make and maintain good and sufficient fences on each side of the right of way of the Lake Shore & Michigan Southern Railway as now located and built through said first named lot or tract herein conveyed and on the south line of said right of way, which is the north line of the second lot herein conveyed west of the two acres reserved and conveyed to Michael McCormick, which condition and obligation shall be perpetually binding on the owners of the land. ’
    “The plaintiff says that afterwards, and before October 10, 1884, the defendant 'sold off sundry parcels of said land to sundry individuals or parties, to-wit, to John Beans, Michael Standen, Edward Standen, Theodore Shearing, John Gannon, Andrew Broadwell, Thomas Costello, Michael Beans, George Bash, Martin Standen, Gust Gable and Mrs. Patrick McKenna. Each holding under the defendant a separate parcel of said land; that prior to said October 10, 1884, the fences along the line of its road and in front of the' several parcels of said land sold by said defendant to the parties above named, became and were out of repair; were not good and sufficient, and were not in condition to turn stock and animals as required by law, portions requiring entirely new fences, and other portions repairing only; that plaintiff gave notice to each of said vendees or occupiers under said defendant Hickey, and requested them and each of them to repair and rebuild said fences and put them in the condition required by said contract and the laws of the state; that said occupiers wholly refused and failed to repair and reconstruct said fences; that it waited a reasonable time, to-wit, one month, and the occupiers refusing and failing so to do, the plaintiff caused said fences to be repaired and rebuilt, as follows, and at the following costs, paid ' by the plaintiff:
    Repairing fence on line of lands occupied by T. Costello..... $2 46
    Repairing fence on line of lands occupied by G. Gable......... 1 99
    Repairing fence on line of lands occupied by Mrs. P. Mc-Kenna ....................................................................... 4 49
    Repairing and rebuilding fence on line of lands occupied by George Bash............................ 17 39
    Repairing and rebuilding fence on line of lands occupied by Michael Beans............................................................. 44 77
    Repairing and rebuilding fence on line of land occupied by A. Broad well............................................................... 10 34
    Repairing and rebuilding fence on line of land occupied by J. Gannon...................................’............................... 33 14
    Repairing and rebuilding fence on line of land occupied by Martin Standen........................................................... 32 48
    Repairing fence on line of lands occupied by Michael Standen 1 9§
    Repairing fence on line of lands occupied by Edward Standen 1 81
    Making a total of....................................................$150 82
    “That each of the parcels of land so occupied by said parties and who were notified respectively as aforesaid, were parts of the land so conveyed to said defendant by the plaintiff and containing the contract aforesaid; that said fences so rebuilt and repaired by the plaintiff were upon the line of plaintiff’s right of way, and were and are the identical fences which, by the terms of said contract, the said defendant obligated himself to build and keep in repair; that said work was done by plaintiff prior to March 18, 1885, and was worth the price and value aforesaid, and of all which defendant had notice; that, by reason of the premises, an action has accrued to plaintiff to have and recover of the defendant the cost and expense aforesaid of said fencing.
    “Wherefore plaintiff prays judgment against the defendant for said sum of $150.82, with interest after March 18, 1885.”
    To this petition the defendant demurred, on the ground:
    1. That there was a defect of parties defendant.
    2. That the petition did not state facts sufficient to constitute a cause of action.
    The demurrer was sustained, to which ruling the plaintiff excepted. The plaintiff, not desiring to amend or further plead, it was considered and adjudged, that the defendant go hence without day and recover of the plaintiff his costs, to which judgment the plaintiff excepted.
    On petition in error filed in the circuit court by the plaintiff, the judgment of the court of common pleas was reversed, and the cause remanded for a new trial.
    This proceeding is instituted by James Hickey, the defendant below, to reverse the judgment of the circuit court.

      G. M. Barber and A. W. Barber, for plaintiff in error.
    There is no provision in the contract that the plaintiff may rebuild and repair and charge the cost thereof to the defendant. Plaintiff’s cause of action, if it have one under the alleged contract, is for whatever damages it may have suffered by reason of the alleged breach of the contract. Huston v. Cincinnati & Z. R. Co. 21 Ohio St., 235.
    The condition is in the following language: This conveyance is made subject to the condition that said James Hickey, his heirs and assignees shall make and maintain good and sufficient fence on each side of the right of way, etc. Which condition and obligation shall be perpetually binding on the owner of the land.
    The intent and meaning must be ascertained from the whole instrument interpreted and construed by just and proper rules. 4 Kent, Com. 132; Masury v. Southworth, 9 Ohio St. 340; Huston v. Cincinnati & Z. R. Co. supra; Walsh v. Barton, 24 Ohio St. 28; Wilmington & Z. R. Co. v. Bosworth, 2 L. R. A. 199, 46 Ohio St. 81.
    The condition runs with the land and is binding-on the owners of the abutting land perpetually. Worthington v. Hewes, 19 Ohio St. 66; Taylor v. DeBus, 31 Ohio St. 468; Smith v. Harrison, 42 Ohio St. 180.
    The whole intent of the parties was to create an easement in favor of the estate of the railroad company in the land occupied by it for its road and a servitude upon the abutting property. Washb. Easem. 4th ed. p. 681.

      Estep, Dickey, Carr & Goff, for defendant in error.
    This covenant in the deed was a personal covenant, binding upon Hickey, and it continues to be so binding-. It is unquestionably also a covenant running with the land upon which the assigns of plaintiff are also liable. Sutliff v. Atwood, 15 Ohio St. 186; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35, 13 Am. Rep. 556; Rogers v. Eagle Fire Co. 9 Wend. 618; Trotter v. Hughes, 12 N. Y. 74, 62 Am. Dec. 137; Belmont v. Coman, 22 N. Y. 438, 78 Am. Dec. 213; Spaulding v. Hallenbeck, 35 N. Y. 206; Burbank v. Pillsbury, 48 N. H. 475, 97 Am. Dec. 633; Atlantic Dock Co. v. Leavitt, 50 Barb. 135; Pike v. Brown, 7 Cush. 133.
   Dickman, J.

In December, 1874, the Railway Company executed and delivered to James Hickey, the plaintiff in error, a deed, duly recorded thereafter, of three hundred and eighty-two acres of land, situate in Cuyahoga county, Ohio, and the grantee entered into possession of the granted premises. The deed contained the following condition and agreement:

“This conveyance is made subject to the condition that the said James Hickey, his heirs and assigns, shall make and maintain good and sufficient fences on each side of the right of way of the Lake Shore and Michigan Southern Railway as now located, * * * which condition and obligation shall be perpetually binding on the owners of the land. ’ ’

Subsequently to the conveyance, Hickey sold to different parties sundry parcels of the same land. The fences along the line of the railway, and in front of the several parcels thus sold becoming out of repair, the railway company requested each of the vendees and occupiers of the parcels of land purchased from Hickey, to repair and reconstruct the fences, in accordance with the condition and agreement in the deed from the Railway Company. Upon the vendees and occupiers refusing and failing so to do, the company caused the fences to be repaired and rebuilt, in a manner sufficient to turn stock and animals as required by law, and commenced the original action to recover the cost and expense of such repairing and rebuilding.

The question presented is, whether the cost and expense so incurred should be borne by the plaintiff in error, the first grantee, or by his respective vendees along the lines of whose lands the fences have been repaired or rebuilt.

It was resolved in Spencer’s case, that the law would not annex the covenant to a thing which had no being at the time of the demise, as in the case of a covenant by a lessee to build a wall upon part of the land demised; and if the covenant should be entered into by the lessee for himself, his executors and administrators, without naming his 'assigns, the lessee, his executors or administrators would be bound and not his assignee. But, it was also resolved, that if the lessee had covenanted, for himself and his assigns, to make a new wall upon some part of the thing demised, forasmuch as it was to be done upon the land demised, it would bind the assignee; for although the covenant extended to a thing to be newly made, yet, as it was to be made upon the thing demised, and the assignee was to take the benefit of it, it should fpnd the assignee by express words. Spencer’s case, 5 Rep. 16, 1st and 2nd resolutions; 1 Smith Lead. Cas. 68. In other words, the covenants which are connected with the estate run with the land, and vest in point of benefit and liability in the assignee.

Nor is this principle to be restricted in its application to leases or deeds inter pa/rtes, executed by both lessor and lessee, or grantor and grantee. Where a grantee accepts a deed, and goes into possession of the premises under it, he is bound by the conditions contained in the deed as effectually as if he had signed and sealed the instrument.' Although not executing the instrument, he should be deemed to have entered into an express undertaking to do what the deed says he is to do; and such undertaking or obligation imposed upon and assumed by the grantee, if not technically a covenant running with the land, is, nevertheless, an agreement of the grantee, evidenced by his acceptance of the deed, which might bind him and his personal representatives, and by express words, his heirs and assigns.

In Burbank v. Pillsbury, 48 N. H. 475, it was held that a clause in a deed poll to the effect that the grantee agrees for herself and for her heirs and assigns, that she and they would forever make and maintain a fence all around the granted premises, was of the same effect as an express covenant, signed and sealed by the grantee; that it would run with the land; that it created an incumbrance upon the land; and, by implication, it was recognized that a subsequent grantee would be liable to the original grantor in an action of assumpsit for non performance of the stipulation. A decision substantially similar was rendered in Kellogg v. Robinson, 6 Vt. 276.

And, in The Georgia Southern Railroad v. Reeves, 64 Ga. 492, the grantor, in consideration of $25.00, and of the building of the railroad, conveyed to a company, its successors or assigns forever, in fee-simple, the right-of-way 'through his land, and added in the deed the words: “It is hereby agreed and understood a depot and station is to be located and given to said Reeves, on the land or strip above conveyed, to be permanently located for the benefit of said Reeves and his assigns, and to be used for the general purposes of the Railroad Company. ” It was held, that the grantee, by accepting such deed, entered into a covenant to comply with its terms, and this covenant ran with the land and became obligatory upon any second company which became the purchaser, under proper legal direction, of the rights, privileges, franchises and property of the former. See also, Countryman v. Deck, 13 Abb. (N. Y.) N. Cas. 110.

If the conditions, stipulations, or covenants in a deed poll may thus run with the land, and bind the first grantee and' subsequent purchasers from him, why, it is inquired, should not the plaintiff in error, as well as his grantees, be holden to perform the condition and obligation contained in the deed from the Railway Company? ' If the conveyance had been made subject only to the condition that, “James Hickey, his heirs and assigns” shall make and maintain good and sufficient fences on each side of the right of way of the railway, the Railway Company, we think, might, at its election, pursue either the original grantee or his vendee, or both, for payment. But the conveyance contains the further provision, that such “condition and obligation shall be perpetually binding on the'owners of the land. ” This provision cannot be regarded as meaningless and without design. In the construction of deeds, the object of all rules is to ascertain the intent of the parties. And in construing the words of a grant, of covenant, of qualification, condition, restraint, exception or explanation, every word should be presumed to have been used for some purpose, and should be deemed to have some force and effect, if it can have. Devlin on Deeds, sec. 840; Salesbury v. Andrews, 19 Pick. 250, 252.

In the case before us, the Railway Company conveyed the land in fee, and as part consideration, imposed a condition for making and maintaining fences, which was to be “perpetually binding on the owners of the land. ” The meaning of the condition, we think, was, to place upon 'Hickey an obligation to make and maintain the fences only during the time he was the owner of the land. At his death, his heirs, upon succeeding to the ownership, would be held to make and maintain the fences while their ownership lasted. If he or his heirs or devisees should sell the land, the assignees would likewise be held while they continued to be owners — the obligation thus running with the land. Manifestly, it was not Hickey’s intention to assume an obligation in perpetuara, and after having sold and conveyed the premises in fee, to remain bound for life, and his heirs to be bound after his death, to build and keep up the fences between the right of way and the land sold. And in getting at the intention of the Railway Company, the obvious inference would be, that the company would naturally provide for a recourse to those who might own the land at the time the fences needed repairing or rebuilding, rather than to its grantee and his heirs, who might perhaps’ at the time be dead, or unable to be found. We cannot but conclude that the company intended when the land was conveyed, to trust to the land and its owners, for a performance of the condition contained in the deed, and not to its grantee after he ceased to be the owner. The fact that the company imposed the condition, that the grantee and “his assigns” should make and maintain the fences, and added thereto, that the condition or obligation should be perpetually binding on “the owners of the land,” would indicate an intention to make ownership the test as to who should be bound to perform the condition in the deed.

In Worthington v. Hewes, 19 Ohio St. 66, there was a demise of certain real estate to the lessee and his assigns, for ninety-nine years, renewable forever. The lease provided that the rent was to be fixed by a reappraisal of the premises every fifteen years. The stipulation in the lease as to the mode of appointing appraisers, was held to be a covenant running with the land, and not a collateral covenant. For all substantial purposes, the estate was treated as a leasehold estate in name and in form only. The lessor, in effect, having-parted at' once with his entire estate, the lessee was deemed to have taken in form a chattel, but in fact an estate in fee. The liability of the lessee for rents was regarded as simply a question of intention; and it was held that, after an unconditional assignment by the lessee, he was not liable for future rents, and had no right to interfere in the appointment of appraisers, which was a matter to be adjusted, not by the original parties to the lease, but by their assignees. The decision, though not altogether decisive, is, in a measure, forcibly illustrative of principles involved in the case at bar.

The judgment of the circuit court, in our opinion, should be reversed, and that of the court of common pleas affirmed.

Judgment accordingly.


source: Caselaw Access Project

author: Bradbury, C. J.

license: Public Domain

text:
    Wick & Co. v. Baldwin.

      Witnesses — Evidence of Character — •Competency of.

    Where a witness on cross-examination admits his conviction and confinement in a penitentiary for a crime involving moral turpitude, it is competent for the party who called him to establish his good character for truth by adducing evidence of his general reputation in that respect.
    (Decided January 23, 1894.)
    Error to the Circuit Court of Cuyahoga county.
    The facts are stated in the opinion.

      Estep, Squire & Dickey, for plaintiffs in error.
    It will he noticed that when the plaintiff rested, the defendant had not been placed upon the 'stand as a witness, therefore, testimony to his general reputation, offered by plaintiff, would have been incompetent, and we now make but two questions upon this record. No issue having been made by plaintiff, as to the general reputation of defendant for truth and veracity, that it was error for the court to admit, on the part of the defendant, affirmative evidence as to his good reputation for truth. And in regard to the second witness, that while he would not have been permitted, under general rules, to have stated his own knowledge or facts within his own knowledge, which would naturally tarnish reputation, and was limited' to the fact of general reputation, he was then permitted, over .the objection of plaintiff’s counsel, to give his opinion that he would believe him under oath as quickly as men in general. These are the only two questions which we make upon the record.

      As to the propriety of the cross-examination, we would refer the court to the cases of Hanoff v. The State, 37 Ohio St., 178; Roe v. The State, 20 Ohio St., 460; Gardner v. Bartholomew, 40 Bar. (N. Y.) 325; The People v. Gay, Vol. 1, Parker’s Cr. Rep., 308; King v. Francis, 3 Espinasse Rep., 116; Harrington v. Inhabitants of Lincoln, 4 Gray, 563; Rogers v. Moore, 10 Conn., 13; Webb v. The State, 29 Ohio St., 351; Frost v. McCargar, 29 Barb. (N. Y.), 617; The State v. Archer, 73 Iowa 320; Harris v. State, 30 Ind., 131.

      Virgil P. Kline, James M. Jones and John O. Winship, for defendant in error.
    Brief of John O. Winship.

    Por what purpose was this evidence offered and admitted unless to impeach the character of Samuel G. Baldwin, and fasten upon him a record that would impair the weight of his testimony with the jury? In the case of Hanoff v. State, 37 Ohio St., 178, the court held, that the admission of such testimony was a matter in the discretion of the court, and if the court admitted it in the exercise of that discretion it was not ground for reversal. And the Supreme Court of Ohio in that case cited with approval the case of the People v. Krapo, 76 N. Y., 288.
    The court will notice in all the cases cited by the plaintiff in error, there is a distinction made between an indictment and a conviction, between a charge made and a verdict, and the courts uniformly held, that where the charge attempted to be established, either by cross-examination or the introduction of a record, is, that a person has been convicted of a crime which would impair his credibility, that raised the question of character, which authorizes the introduction of evidence by him of a general good character to rebut it. Greenleaf on Evidence, Sec. 469; Webb v. State, 29 Ohio St., 358; Deuval v. Furman, 3 Ohio C. C., 305; Rapalje Law of Witnesses, on page 336, Sec. 223; Thompson on Trials, Sec. 552, et seq.; Leonori v. Bishop, 4 Duer, 420; Hillis v. Wylie, 26 Ohio St., 574; Marts v. State, 26 Ohio St., 162; Central Railroad & Banking Co. v. Dodge, 10 S. E. Rep., 206.
   Bradbury, C. J.

The plaintiffs in error brought, in the Court of Common Pleas of Cuyahoga county, an action against the defendant in error, upon forty-three promissory notes, as an indorser thereof, the indorsement of which the defendant in error denied. The action was tried to the court and a jury, the real controversy between the parties being whether or not the name of the defendant in error had been written on the several notes by him, or with his authority. The jury found in his favor. Upon this issue his evidence at the trial was emphatic and to a high degree material; and" counsel for plaintiff in error sought to weaken its force by a severe and protracted cross-examination, extending back to certain transactions of his early manhood, in the state of New York, over forty years before the trial. In the course of this cross-examination, the defendant was asked if he had not been confined in the penitentiary of the state of New York. His answers disclosed that he had been confined in the penitentiary of that state, for a short period, before the year 1838, upon a conviction by his confession in open court, of the crime of obtaining property by false pretenses, and that in the year 1838, he also pleaded guilty to an indictment charging forgery against him, and was again confined in the penitentiary of the state of New York, until pardoned by the governor of that state a year or two afterwards. This course of cross-examination was then directed to certain transactions, of Mr. Baldwin in Cleveland, a number of years later, and after'his removal to this state. His answers show that he was, about the year 1854, indicted in Cuyahoga county for perjury, and that probably, though this is not made entirely clear, the indictment was quashed for some defect or insufficiency in its allegations. It further appeared that, about the same time, he was prosecuted for contempt of court, upon the charge of abstracting papers from the files of the court, and found guilty upon a trial, which conviction was reversed by this court upon the ground that he should have been prosecuted by indictment rather than by contempt. 11 Ohio St. 681.

The defendant in error having, without formal objection, in the course of his cross-examination, disclosed these transactions, it was not necessary to introduce the records of the several proceedings had against him, to establish them.

The only object this testimony could accomplish was to discredit the defendant in error.

It was wholly collateral to the question in litigation before the court and jury. Unexplained it could not fail to seriously affect his standing and credit with the jury. To rebut this inevitable consequence, the defendant offered evidence of his general reputation for truth, which was admitted over the objection of the plaintiffs, and it is of this action of the trial court that the plaintiffs in error now complain.

One ground upon which, the plaintiff in error strongly contends against the admissibility of testimony to the defendant’s general good character for truth, is that he had been accorded the privilege of giving his versions of the several transactions while admitting them,' and had availed himself of this privilege to the fullest extent.

It is true that the defendant in error had, while admitting’ the several prosecutions against him and his conviction and imprisonment in respect of them, sought by various explanations, to palliate" or deny his culpability in connection ‘with them; and if those explanations were believed they very greatly reduced the moral turpitude that otherwise would attach to him on account of them. However, that he was charged with these offenses, all involving extreme moral turpitude, convicted of some of them, and confined in the penitentiary of the state of New York twice on account of them, was made clear by his own statements. Whether the jury would give very much weight to his explanations alone might be doubtful; but, however this may have been, and whether, by his demeanor upon the witness stand, he was, or was not, able to impress the jury with a belief that he was, in the commission of those offenses, quite as much or more the victim of circumstances, as the perpetrator of a series of deliberate crimes, yet, in either case, we think, he had a right to put in the scales the weight of many years of upright conduct by which he had established among those who knew him, a reputation for truth, if he had in fact by such conduct established such a reputation.

This court held in Webb v. The State, 29 Ohio St. 351: That “where the question as to whether a witness is guilty of such” (infamous) “crimes becomes the legitimate subject of inquiry on the trial, his reputation for truth may be proved to rebut the imputation of guilt which the evidence makes against him. ” In this case, Webb, who was being tried for forgery, attempted to prove that a witness, who had testified against him, had committed the crime instead of himself; and to rebut the inference of guilt flowing from this proof, the state was permitted to introduce evidence of the general reputation of the witness for truth. In sustaining this ruling of the court of common pleas, Judge White says: “The crime charged’’(forgery) “belongs to the class known as infamous, which includes every species of the crimen falsi, such as forgery, perjury, subornation of perjury, and offenses affecting the public administration of justice.

“At common law, conviction of such a crime rendered the party infamous and wholly unworthy of credit. -Now, by statute, the competency of the party as a witness is .restored; but his conviction may still be shown for the purpose of affecting his credibilty. The effect óf such conviction is to impeach the character of the witness as a man of truth, and where the record of the conviction is used to impeach a witness, his. reputation for truth may be proved to rebut its effect. ’ ’

It is not, we think, material whether the conviction and the resulting- imprisonment of the witness should be established by a record, or by his admissions while on the stand, which renders the production of the record unnecessary; in either case, the fact of his conviction and subsequent imprisonment has been established before the jury, and the reasons which justify the introduction of evidence of his good character for truth is equally applicable to each. Judgment affi/rmed.


author: Bradbury, J.

text:
    Baird v. Howard.
    Intoxication— When avoids contract — Remedy—Recision—Measure oj damages — Evidence.
    1. Where possession of personal property has been obtained by means of a contract made with one who, by reason of his intoxication, was without capacity to enter into a valid agreement, and the person obtaining the property knew of the other’s incapacity when the contract was made, the transaction is fraudulent: The party thus deprived of his property may regard the possession as wrongful, and if the possessor claims or exercises dominion over the property, to the exclusion of the right of the other, the latter, at his election, may treat the transaction as a conversion of the property; and the institution of an action to recover the value of the property so converted, constitutes such an election.
    2. In such case, no formal recision of the invalid contract is necessary before bringing the action; and if the consideration, in whole or in part, has been paid to the party deprived of his property, no offer to return it is necessary to enable him to maintain the action, but the measure of damages will be the difference between the value of the property delivered and the consideration received.
    3. In such case, upon the trial of an issue respecting the capacity of a party, by reason of his intoxication, to enter into a contract, it is competent to introduce, in his behalf, evidence of declarations, respecting the value of the property, made by him recently before the contract was made, while he was sober.
    (Decided February 27, 1894.)
    Error to the Circuit Court of Wayne county.
    This action was brought in the Court of Common Pleas of Wayne county, a trial had to a jury, and a verdict and judgment rendered "for the plaintiff, who is now plaintiff in error; which judgment was reversed by the circuit court, whereupon proceedings were instituted in this court to reverse the judgment of the circuit court and affirm that of the court of common pleas.

      Frank Taggart and E. S. Dowell, for plaintiff in error:
    A contract made in such a state of intoxication as to deprive the party of his discretion and ordinary judgment will be set aside in equity, although the other party had no agency in producing the intoxication. French v. French, 8 Ohio, 214, 31 Am. Dec. 441; Holland v. Barnes, 53 Ala. 83, 25 Am. Rep. 595.
    A drunkard is not incompetent like an idiot or one generally insane. He is simply incompetent upon proof that at the time of the act challenged his. understanding was clouded or his reason dethroned by actual intoxication. Van Wyck v. Brasher, 81 N. Y. 260.
    A contract made by one who is drunk, or of unsound mind, so as tobe incapable of understanding its effect, while not void is generally voidable at his option. Pollick, Cont. ed. 1885, by Wald, p. 93, note z2 and cases cited; also p. 94, note a and cases cited. See also 7 Wait, Act & Def. pp. 167-169, subject Intoxication.

    Intoxication to such an extent as to deprive a contracting party of the use of his reason has in many cases been treated as a temporary insanity, having the same effect upon a contract entered into during its continuance as if arising’ from any other cause. Miller v. Finley, 26 Mich. 249, 12 Am. Rep. 306; Johnson v. Harmon, 94 U. S. 373, 24 L. ed. 271.
    One who executes a contract for the purpose of defrauding another will not be protected against it when it is used against himself. 5 Lawson, Rights, Rem. & Pr. § 2358; Rankin v. Simpson, 19 Pa. 471, 57 Am. Dec. 668; Columbus & T. R. Co. v. Steinfeld, 42 Ohio St. 455; Gould v. Cayuga County Nat. Bank of Auburn, 99 N. Y. 333; Strong v. Strong, 102 N. Y. 69; Bowen v. Mandeville, 95 N. Y. 237; Krumm v. Beach, 96 N. Y. 398; Whitney v. Allaire, 4 Denio, 554; Kerr, Fraud & Mistake, ed. 1872, by Bump, p. 330; Smith v. Patterson, 33 Ohio St. 70.
    When there is evidence tending to show fraud or undue influence then the conduct and declarations of the testator not only at the time of its execution but before and after are relevant for the purpose of manifesting his mental qualities and disposition and consequent susceptibility to the fraud or undue influence. Abbott, Trial Ev. ed. 1880, p. 122, ¶ 70; Id. § 63, pp. 115, 116; Mooney v. Olsen, 22 Kan. 69; Whart. Ev. §§ 268, 269; Packer v. Lockman, 115 Mass. 72; Potter v. Baldwin, 133 Mass. 427; Kent v. State, 42 Ohio St. 426.

      A. D. Metz, for defendant in error:
    Vendor cannot sue to recover damages by reason of intoxication or fraud. His remedy is to sue to rescind contract; and he must return purchase money if paid and demand his property back; if not returned he must reclaim his property by electing: First, to replevy; second, sue for value of his property held by vendee. Weed v. Page, 7 Wis. 503; Bliss v. Cottle, 32 Barb. 323; Lacker v. Rhoades, 45 Barb. 499; Rowley v. Bigelow, 12 Pick. 312, 23 Am. Dec. 607; Masson v. Bovet, 1 Denio, 73, 43 Am. Dec. 651; Lloyd v. Brewster, 4 Paige, 540, 3 L. ed. 553, 27 Am. Dec. 88; Stewart v. Emerson, 52 N. H. 301; Ryan v. Brant, 42 Ill. 78; Moriarty v. Stofferan, 89 Ill. 528; 1 Benjamin, Sales, Corbin’s ed. p. 569, § 649, note 14; Newmark, Sales, § 395; Carnahan v. Hughes, 108 Ind. 225; Dietz v. Sutcliffe, 80 Ky. 650, 8 Am. & Eng. Encyclop. Law, p. 847; Chitty, Cont. 8th Am. ed. p. 356.
    The vendor must exercise his rig’ht to rescind for fraud on the vendee’s part within a reasonable time, and he cannot affirm in part and rescind in part. Lapp v. Ryan, 23 Mo. App. 436; Baird v. New York, 96 N. Y. 567; 8 Am. & Eng. Encyclop. Law, p. 805; Wingate v. King, 23 Me. 35; Key v. Jennings, 66 Mo. 356; Bradshaw v. Yates, 67 Mo. 221; Estes v. Reynolds, 75 Mo. 563; Campau v. Van Dyke, 15 Mich. 371; Kribbs v. Downing, 25 Pa. 399; Davis v. Stuard, 99 Pa. 295; Willoughby v. Moulton, 47 N. H. 205; Williamson v. New Jersey Southern R. Co. 28 N. J. Eq. 277, 29 N. J. Eq. 311; Clough v. London & N. W. R. Co. L. R. 7 Exch. 34; Cobb v. Hatfield, 46 N. Y. 536; Mason v. Bovet, 1 Denio, 69, 43 Am. Dec. 651; Vorhees v. Earl, 2 Hill, 288, 38 Am. Dec. 588.

      Vendor cannot rescind the contract and at the same time retain the consideration in whole or in part; he must rescind in toto. Where the vendor would rescind the contract on account of the fraud of the purchaser, it is his duty to restore what he has received in payment before he can sustain an action or recover the goods sold. Coolidge v. Bingham, 1 Met. p. 547; Miner v. Bradley, 22 Pick. 457; Perley v. Balsh, 23 Pick. 286, 34 Am. Dec. 56; Vorhees v. Earl, supra; Baker v. Robbins, 2 Denio, 138; Weed v. Page, supra; Cushing v. Wyman, 38 Me. 589; Cook v. Gilman, 34 N. H. 556; Chitty, Cont. 11th Am. ed. 1092, note a.

    The law requires two persons at least to make a contract. If Baird was entirely incapacitated, by reason of intoxication, to make a contract, then there never was a valid contract between Baird and Howard, and which Baird could elect to repudiate for fraud or affirm it. But Baird could not afterwards ratify it and keep the $1,000 and claim $600 by way of damages. Or, in other words, say he was sober and the contract good for $1,000, and that he was intoxicated and incapacitated for $600. 1 Story, Eq. Jur. §§ 230, 231; Pom. Spec. Perf. § 184; 1 Addison, Cont. § 191.
   Bradbury, J.

The plaintiff, now plaintiff in error, sets forth his claim in the court of common pleas in an amended petition as follows: “The plaintiff now comes and by leave of the court, first had and obtained, and files this his amended petition in this case, and says : ‘That on the 18th day of August, A. D. 1886, the plaintiff was intoxicated to such an extent, that by reason thereof he was totally unable and unfit to make or enter into a valid contract of any kind. That the defendant, then well knowing the condition of the plaintiff, and that he was then intoxicated to such an extent that he was wholly unfit and unable by reason thereof to make or enter into a valid or binding contract, and then intending to cheat and defraud the plaintiff, bargained with, and then induced and procured the plaintiff, while so intoxicated, to sell and deliver to him, the defendant, the undivided one-half interest in all the livery stock, consisting of horses, carriages, harness, whips, robes and all other property then owned by the plaintiff and one Jerome T. Baird as partners under the firm name of Baird & Son. That said undivided one-half interest in said livery stock, so sold and delivered by the plaintiff to the defendant, was then of the value of $1,600; yet the defendant, then well knowing that the said undivided one-half interest in said livery stock was of the value of $1,600, and then intending to cheat and defraud the plaintiff, induced and procured the plaintiff, while so intoxicated as aforesaid, to sell and deliver said undivided one-half interest in said livery stock to the defendant for the sum of $1,000 and no more; and while so intoxicated and intending to cheat and defraud the plaintiff, the defendant caused and procured the plaintiff to enter into a written contract between him and the plaintiff wherein and whereby it appears that the plaintiff sold and delivered said one undivided half interest in said livery stock to the defendant for the sum of $1,000 and no more. The plaintiff says that if he had been sober and capable of transacting such business on said 18th day of August,. 1886, he would not have entered into said written contract with the defendant, and would not have sold and delivered his said undivided one-half interest in said livery stock to the defendant for less than $1,600 cash. That his said undivided one-half interest in said livery stock was then worth the sum of $1,600 cash, and that the sum of $1,000, the amount paid by the defendant to the plaintiff therefor at the time and in the manner aforesaid, was a grossly inadequate price and consideration therefor and the defendant then well knew it. That the defendant then well knew that $1,000 was a grossly inadequate price and consideration for the said undivided one-half of said livery stock, and then knew that if the plaintiff was sober and capable of transacting such business as that of selling and disposing of his interest in said livery stock, that the plaintiff would not then have accepted the sum of $1,000 as a full consideration for his interest in said livery stock, which he had sold and delivered to defendant as aforesaid, but intending to cheat and.defraud the plaintiff, the defendant purchased from the plaintiff, the said interest in said livery stock for the sum of $1,000 as in the manner aforesaid, and which stock the plaintiff then delivered to defendant. The plaintiff says that by reason of the premises he has been cheated, wronged and defrauded by the defendant out of the sum of $600.

‘ ‘ The plaintiff therefore prays judgment against the defendant for the sum of six hundred dollars with interest from August 18, 1886. ’ ”

To this petition a demurrer was interposed by the defendant, which the court of. common pleas overruled, and to which ruling the defendant excepted. An issue of fact was then joined between the parties, upon the trial of which the .plaintiff offered to prove the price that he had placed upon the livery stock before the sale, while sober. The defendant objected to its admission; his objection being overruled and the evidence admitted, he entered an exception thereto. It was upon these two grounds that the circuit court - reversed the judgment; that court holding that the amended petition, as above set forth, did not disclose a cause of action, and that evidence of the value the plaintiff had, while sober, placed upon the property just previous to the sale, was not admissible.

In support of the holding of the circuit court that the amended petition did not state a cause of action, counsel contends that plaintiff’s only remedy was to rescind the contract, which he could accomplish in either of two ways: 1, by a suit in equity; 2, by an offer to return the consideration he had received, coupled with a demand for the restoration of his own property, after which, if the defendant did not consent to a restoration, an action in replevin, or in trover, would lie. That these remedies were open to the plaintiff is apparent, and is in fact admitted by his counsel; but he contends for still another, namely the right, without a prior formal recision of the contract, to maintain an action to recover the difference between the value of the property and the price received. Such an action could not be regarded as being on the contract; for instituting an action directly on the contract, would be an affirmation of it, and if the -contract should be affirmed he could not recover; for, according to its terms, he had been fully paid. The institution of such an action might be regarded, perhaps, as a recision; but if the defendant’s possession was rightful, up to the moment of the filing of the petition, the principle upon which -that possession would be instantly transformed into a wrongful one, is not very apparent. If its unlawful character grew out of the recision, the defendant should have been afforded an opportunity to restore the property before being held a wrongdoer. If, however, the method by which the defendant obtained possession was wrongful, there would be consistency in holding the possession thus obtained to have been wrongful at its inception.

The petition avers that the defendant, with intent to cheat and defraud the plaintiff, induced the latter to enter into the contract under consideration, and to deliver to the defendant the property involved in the controversy, with knowledge that the plaintiff was ‘ ‘unfit and unable to make or enter into a valid contract,” because his senses were dulled by intoxication. The demurrer admitted this to be true. It thus appeared not merely that a contract had been made, but that the defendant had secured the possession of the plaintiff’s property by knowingly taking advantage of the latter’s temporary incapacity. Had possession been taken while the plaintiff’s senses were overcome by sleep, no one Would deny that such a possession was wrongful. The difference between the character of a possession secured by the latter method, and one deliberately obtained through the medium of an invalid contract, made with one whose senses the possessor knew at the time were stupefied by excessive intoxication, is one of degree rather than principle. That in the former case the transaction would involve a trespass, and present none of the features péculiar to contracts, while in the latter case it took the form of a contract, is a distinction possessing little if any materiality in this connection. The fraud inhering in the one, should be deemed a substantial equivalent to the force involved in the other, method of obtaining possession. Each is wrongful. To secure the possession of property by means of a contract made with its owner, by one, who at the time knew him to be incapable of entering into a contract, constitutes a fraud.

In such case, it is true, a contract exists which the incapacitated party has an option to affirm or rescind. But because the one party may exercise this option, it does not follow that the other party may compel its exercise as a condition precedent to obtaining any relief. If, when restored to capacity, the former is satisfied with the contract, and wished to enforce its provisions, he can affirm and maintain an action upon it; if he had, in fact, received a substantial part of the consideration secured to him by the contract, and wished to recover possession of the property with which he had been induced to part, he should be required to rescind the contract and restore that part of the consideration which had been paid him, for he should not be allowed to retain the latter and at the same time recover possession of the former.

Where one person, ignorant of the incapacity of another person deals with the latter and obtains possession of his property, the possession of the former should not be deemed wrongful until the contract is rescinded and a demand for the property made upon him. The mutual rights or liabilities of persons thus situated, however, should not be the measure of the rights and liabilities of parties, where the possession of the property of one has been wrongfully obtained by the other. The wrongful acts by which possession was secured become material factors in determining the question. If a possession thus obtained is continued under circumstances from which it may be fairly inferred that the party in possession is exercising* dominion over the property to the exclusion of the right of the party wrongfully dispossessed, the latter may regard such acts as constituting a conversion of the property.»

We have found no case in all respects similar to the one under consideration, but in a number of well considered cases, courts have held that where the purchase of goods has been effected by false representations, the vendor may maintain trover against the vendee without demand. Thurston et al. v. Blanchard, 22 Pick. 18; Green v. Russell, 5 Hill, 183; Thompson v. Roe, 16 Conn., (Day) 71; Noble v. Adams, 7 Taun, 59; Bristol v. Wilsmore, 2 D. & R., 755.

In the procedure prescribed by our civil code all the ancient common law actions are abolished; all are merged into one “civil action,’’and even if the facts stated in the petition did not disclose a technical conversion they constitute fraud to the injury of the plaintiff, as we have seen. The remedy should be as broad as the injury. The party guilty of the fraud should not be allowed to shield himself by a contract procured in this way and insist upon immunity for the fraud until the contract has been formally rescinded.

The principal dispute between the parties at the trial in the court of common pleas related to the competency of the plaintiff to make a contract at the time the one in contention was'entered into. One means of ascertaining this, was to contrast him, as he conducted and expressed himself on that day, with himself as, according to his conduct, his opinions and expressions, he appeared on other days when known to be duly sober. That a few days before the sale, at a time when he was sober, he had placed upon the property a value that widely varied from that at which it was sold, reflected upon the extent that his judgment had been affected by the liquor he had drank.

That such evidence might be considered by the jury for some other and improper purpose, as, for instance, in determining the value of the property and the damages, does not render its admission erroneous. If competent for any purpose it was admissible.

Whenever it becomes necessary to inquire into the mental condition of a person, and there are other issues in the cause, much evidence is usually admitted which, but for that issue, would be incompetent; and in such cases the court, upon the request of a party, should caution the jury to limit its effect to the issue to which it is lawfully applicable.

The charge of the court is not printed in the record; but we should presume that the trial court did its duty, and therefore either limited to its proper office the evidence objected to, or if requested by the defendant, would have done so.

Judgment of the circuit court reversed and that of the common pleas affirmed.


author: Spear, J.

text:
    Gobrecht v. Cincinnati.

      Public Officers — Salary'—Compensation—Increase of — Not Unconstitutional — Remedy of Officer.

    1., Compensation of a public officer fixed by a provision that “ each member of the board who is present during the entire session of any regular meeting, and not otherwise, shall be entitled to receive five dollars for his attendance,” is not “ salary” , within the meaning of section 20, of article 2, of the constitution, which provides that “ the general assembly, in cases not provided for in this constitution, shall fix the term of office, and ' 'the compensation'of all officers; but no change therein shall affect tbe salary of any officer during bis existing term, unless tbe office be abolished.”
    2. An increase in tbe compensation of such officer during bis term is not prohibited by the constitution.
    3. An action at law against the city is a proper form of remedy to determine plaintiff’s right to the increased pay.
    (Decided February 27, 1894.)
    Error to the Circuit Court of Hamilton county.
    The .plaintiff’s petition, filed in the court of common pleas of Hamilton county, August 6, 1892, set forth that he then was, and since prior to February 19, 1892, had been, a member of the board of legislation of the city of Cincinnati; that he had attended all regular meetings of the board on and subsequent to the above daté, being present during the entire session of each meeting; that he had been compensated for each of said attendances, at the rate of five dollars per meeting; that defendant has refused to pay plaintiff any greater compensation, and asking judgment for one hundred and twenty-five dollars.
    A demurrer to the petition was sustained, and a judgment for defendant rendered, which, upon error to the circuit'court, was affirmed.

      William H. Pope, for plaintiff in error:
    An action of debt is generally conceded to be the proper remedy to recover compensation for official services rendered to a municipal corporation. People v. Thompson, 25 Barb. 73; Steubenville v. Culp, 38 Ohio St. 18, 43 Am. Rep. 417; O'Leary v. New York Board of Education, 93 N. Y. 1, 45 Am. Rep. 156.

      Acceptance of a less sum does not estop to claim amount actually due. Montague v. Massey, 76 Va. 307.
    The presumption is that the legislative power is not restricted and the burden is on the party asserting the existence of a limitation to establish the fact. Lehman v. McBride, 15 Ohio St. 573.
    In Thompson v. Phillips, 12 Ohio St. 617, the supreme court, considered the meaning of the word “salary” as used in the section of the constitution under consideration.
    We must give to the language employed in the constitution its plain and natural import as understood by its framers and the people who adopted the instrument. And we may look to the debates as aids to ascertain that meaning. Cass v. Dillon, 2 Ohio St. 621; State v. Kennon, 7 Ohio St. 563.
    Salary is defined to be “ the recompense or consideration stipulated to be paid to a person for periodical services, usually a fixed sum to be paid by the year, half year, or quarter.” 5 Century Dict. 5310.
    In Indiana a per diem allowance would be termed fees or wages. Cowden v. Huff, 10 Ind. 85.

      Theodore Horstman, for defendant in error:
    The general assembly in cases not provided for in this constitution, shall fix the term of office, and the compensation of .all officers; but no change therein shall affect the salary of any officer during his existing term, unless the office is abolished. Const, art. 2, § 20.
    The following are the definitions of the word “salary,” as given in the leading lexicons:

      “The recompense or consideration stipulated to be paid to a person for services; annual or periodical wages or pay; hire. ”
    Webster.
    “An annual or periodical payment for services; —a stipulated periodical recompense.”
    Worcester.
    “The recompense or consideration stipulated to be paid to a person periodically for services.”
    Century Diet.
    “The reward paid to a public officer for the performance of his official duties.” Bouvier, Law Dict. 492; State v. Raine, 49 Ohio St. 580.
    The remedy of plaintiff in error, if any, was mandamus. Merrill, Mandamus, § 136, citing Huff v. Knapp, 5 N. Y. 65; McBride v. Grand Rapids, 47 Mich. 236; State v. Cleveland, 22 Week. L. Bull. 113.
   Spear, J.

Two questions arise upon the record: (a) Can the compensation of members of the board of legislation be increased during the existing term? iff) Is an action at law the proper form of remedy to recover compensation, where payment is refused by the city, or must resort be had to a proceeding in mandamus?

At the commencement of the term of plaintiff as a member of the board of legislation the compensation provided by statute was five dollars for attendance during the entire session of any regular meeting. By the act of February 19, 1892, it was provided that “each member of the board who is present during the entire session of any regular meeting, and not otherwise, shall be entitled to receive ten dollars for his attendance, and shall receive no other compensation whatever.”

It is contended that section 20, of article 2, of the constitution, prohibits an increase of compensation during the existing term. That section is as follows: “The general assembly, in cases not provided for in this constitution, shall fix the term of office, and the compensation of all officers; but no change therein shall affect the salary of any officer during his existing term, unless the office be abolished. ”

The question, therefore, is, whether or not the pay of a member of the board is “salary” within the meaning of the above section?

We think it is not. A general definition of salary includes compensation. General definitions, do not, however, cover all cases. Salary is compensation, but, under the section quoted, compensation is .not, in every instance, salary. The point is emphasized by this court in the case of Thompson v. Phillips, 12 Ohio St. 617, where it is said that “it is manifest from the change of expression in the two clauses of the section that the word ‘salary’ was not used in a general sense, embracing any compensation fixed for an officer, but in its limited sense, of an annual or periodical payment for services — a payment dependent on the time and not on the amount of the service rendered.” And it was there held that a percentage compensation allowed by law to a public treasurer for official duties, could be altered during his term. It is the “salary” which shall not be changed during the term, not necessarily, the compensation.

We think the compensation in the ease at bar comes within the principle of the case cited, although a per diem compensation. It is not, within the meaning of the section quoted, “salary. ” Hence, an increase in the pay of a member during his term, is not prohibited by the constitution.

Nor is this conclusion inconsistent with the holding in The State ex rel. v. Raine, 49 Ohio St. 580. The act of April 8, 1886, gave to the commissioners of Hamilton county a salary of $2,000 per year each, and necessary traveling expenses when traveling outside the county' on official business. The amendment under review undertook to give them, for expenses, $1,000 per annum additional. The holding is that the addition, though in terms for expenses, was in effect an increase of salary, which was unauthorized as applied to the existing term of a commissioner in office when the increase was made.

We see no reason why an action at law was not proper. A real question as to the right of the plaintiff to the increased pay existed. It is not important to determine whether or not plaintiff would have been entitled to a writ of mandamus against the officer of the city charged with the duty of issuing warrants for the pay of the city officers. It is enough to know that the plaintiff has a clear legal right to pursue the ordinary and approved remedy of an action at law against the city. Ordinarily, where such right exists, and the remedy by its enforcement is adequate, mandamus will not lie. And it is not difficult to imagine a case where, by reason of the existence of a real question as to the relator’s right to additional compensation the refusal of an accounting officer to issue a warrant until the question of the plaintiff’s right to it had been determined in the ordinary way, might be sustained even though the court might be of opinion that, in an action at law, the claimant would be entitled to recover.

The judgment will be*, reversed a/nd the cause remanded with direction to overrule- the demurrer to the petition and for fu/rther proceedings.


author: Burket, J.

text:
    Reiter v. State ex rel.

      Public Officers — Resignation of — When Takes Effect — Vacancy— Election of.

    1. By the rules of the common law, a resignation of an office does not take effect, so as to create a vacancy, until such resignation is accepted hy the proper authority; but the common law in this regard is not in force in this state, to its full extent, and here a resignation without acceptance creates a vacancy, to the extent at least, of giving jurisdiction to appoint or elect a successor, unless otherwise provided by statute.
    2. On February 21, 1893, H., then mayor of P., presented his. resignation to the council then in session, to take effect March 1. On March 7, the resignation was accepted. On March 11, R. was appointed to fill the vacancy. At the following election on April 3, D. was elected to fill the unexpired term. In a contest for the office between D. and R. Held: That the vacancy occurred March 1, and more than thirty days having elapsed at the April election, it was lawful then to elect a mayor for the unexpired term, and that D. was entitled to the office.
    (Decided February 27, 1894.)
    - Error to the Circuit Court of Hamilton county.
    The material facts found by the circuit court, on the trial of this case, are as follows:
    On the 21st day of February, 1893, Amos Hill, being the mayor of the village of Pleasant Ridge in Hamilton county, presented to the council while in session the following resignation:
    “Pleasant Ridge, February 21, 1893.
    “To the Honorable Council of the village of Pleasant Ridg’e:
    “I, Amos Hill, mayor, tender to you my resignation, to take effect March 1, 1893, as I cannot take time to attend to this office.
    “Yours with respect,
    “Amos Hill.”
    On motion, this resignation was laid over to the next meeting, March 7, when it was accepted by council to take effect at once, and at an adjourned meeting held March 11, George Reiter, plaintiff in error, was appointed mayor to fill the vacancy caused by the resignation of Mr. Hill, and on the same day Mr. Reiter was qualified and entered upon the duties of his office.
    At the following April election John H.' Durrell, was elected mayor of the village of Pleasant Ridge, and in due time gave bond, qualified, and demanded the office, but Mr. Reiter refused to surrender the office to him, and claimed that the election for mayor held in April, was not authorized by law, as the election occurred as he claimed, less than thirty days after the vacancy.
    Thereupon Mr. Durrell filed his petition in quo warranto in the circuit court of Hamilton county, to oust Mr. Reiter from the office of mayor.
    Upon the above facts the circuit court found in favor of Mr. Durrell, ousted Mr. Reiter and ordered Mr. Durrell to be inducted into the office of mayor; to all of which Mr. Reiter excepted, and filed his petition in this court to reverse the judgment of the circuit court.

      John J. Acomb and Coppock & Gallagher, for plaintiff in error:
    A resignation of an office, to be effective, must be accepted, and until accepted does not create a vacancy in the office, for any purpose whatsoever.
    A person who has assumed the duties of an office cannot throw them off at will, but the public, through its representatives, has the right to say that it is willing that he shall be relieved of its duties and responsibilities. Hoke v. Henderson, 75 N. C. 29, 25 Am. Dec. 677; Rex v. Rippon, 1 Ld. Raym. 563; Reg. v. Lane, 2 Ld. Raym. 1304.
    If such is the rule of the common law, it must be assumed that it prevails here unless the contrary appears. Edwards v. United States, 103 U. S. 471, 26 L. ed. 314; State v. Clayton, 27 Kan. 442, 41 Am. Rep. 418; Rogers v. Slonaker, 32 Kan. 191; State v. Ferguson, 31 N. J. L. 107; Waycross v. Youmans, 85 Ga. 708; Hoke v. Henderson, supra; State v. Boecker, 56 Mo. 19; Badger v. United States, 93 U. S. 599, 23 L. ed. 991; People v. Barnett Twp. Suprs. 100 Ill. 332; Jones v. Jefferson, 66 Tex. 576.

      Matthews & Cleveland and L. C. Black, for defendant in error:
    A civil officer has the absolute right to resign his office at pleasure, and it is not within the power of the executive to compel him to remain in office. McCrary, Elections, § 260; People v. Porter, 6 Cal. 26; United States v. Wright, McLean, 509; State v. Clark, 3 Nev. 566; Olmsted v. Dennis, 77 N. Y. 378; State v. Lincoln, 4 Neb. 260; State v. Fitts, 49 Ala. 402; Bunting v. Willis, 27 Gratt. 144, 21 Am. Rep. 338; State v. Hauss, 43 Ind. 105, 13 Am. Rep. 384; Leech v. State, 78 Ind. 570; Gilbert v. Luce, 11 Barb. 91.

      In section 1715 the legislature has provided in certain cases that the removal beyond the limits of a corporation shall work a resignation, evidently meaning by the word “resignation” that they considered a resignation final, and an acceptance not necessary, because in that case there could be no acceptance. Ratterman v. State, 44 Ohio St. 641.
   Burket, J.

Section 1754 of the Revised Statutes provides as follows:

“In case of the death, resignation, disability, or other vacation of his office, the council may, by the vote of a majority of all the members elected, appoint some suitable person within the corporation to act as mayor, and discharge the duties of the office until the vacancy is filled, or the disability removed: Provided, that at the next annual municipal election occurring more than thirty days after such vacancy, a mayor shall be elected for any unexpired term, unless the disability is of a temporary character.”

The election was held on the third day of April, 1893. If a vacancy in the office occurred on the first day of March, then the April election occurred more than thirty days after such vacancy, and the election of Mr. Burrell was valid; but if the vacancy did not occur until the resignation was accepted on the 7th day of March, then the vacancy occurred less than thirty days before the April election, and in 'such case the election of Mr. Burrell would be void.

The date at which the vacancy occurred depends upon the question whether the delivery of the resignation to the council to take effect March 1st, caused a vacancy on that day, or whether the vacaney occurred upon the acceptance of the resignation on the 7th day of March. It seems to he well settled in England and at common law, that a resignation of an office does not take effect, so as to create a vacancy, until accepted by the proper authority. Hoke v. Henderson, 4 Deveraux, (N. C.), 29; Rex v. Mayor of Rippan, 1 Lord Raym. 563; Reg. v. Lane, 2 Lord Raym. 1304; Edwards v. United States, 103 U. S. 471; State v. Clayton, 27 Kansas, 442; State ex rel. Reeves v. Ferguson, 31 N. J. L. 107; City of Waycross, v. Youmans, 85 Ga. 708; State ex rel. v. Boecker, 56 Mo. 19; Badger v. U. S. ex rel., 93 U. S. 599; People v. Sup. Barnett Tp., 100 Ill. 332; Jones v. City of Jefferson, 66 Tex. 576.

The common law prevails in this state in so far as it is fairly' applicable to our institutions and manner of living, unless abrogated or modified by statute. So that the real question in this case is, whether the common law rule as to resignations shall govern in this state, or whether that rule has been abrogated by our legislation, or is inconsistent with our institutions. That there is no statute expressly changing the common law in this respect seems clear; but it seems difficult, if not impossible, to reconcile our various statutes with the common law rule. The doctrine of the common law is that an officer has not the absolute right at his own pleasure to resign his office; that the public are interested as well as the individual incumbent; that an acceptance is necessary to perfect a resignation ; and that the public have the right to command the services of any citizen in any official position which they may designate.

This common law doctrine seems inconsistent with our statutes as well as with our practical treatment of official positions.

Section 1449, Revised Statutes, which imposes a ' fine of two dollars on a person for neglecting or refusing to serve in an office to which he has been •elected or appointed under chapter two of title eleven, recognizes the power, if not the right, of a citizen to refuse to hold such office.

Section 19, Revised Statutes, provides, that a person who is elected or appointed to an office, and fails to give bond, shall be deemed to have refused to accept the office, and the same shall be considered vacant.

Section 556 provides, that a judge failing to transmit a certificate of his having taken the oath required by the constitution and statutes within the time required by law, shall be deemed to have refused the office, and it shall be considered vacant.

Section 557 provides, that in case a judge of the supreme court removes his residence out of this state, or a circuit judge out of his circuit, or a common pleas judg’e out of his subdivision, or a judge of a superior court out of his county, he shall be considered to have resigned and vacated his office, whereupon the vacancy shall be filled according to law.

No acceptance of such resignation seems to be contemplated, and certainly none is provided for.

Section 843 provides, that the absence of a county commissioner from his county for six months, shall be deemed a resignation of his office; and section 1715 provides that the removal of a municipal officer beyond the limits of the corporation, shall be deemed a resignation of his office. In such .case there can be no acceptance of the resignation.

Section 570 provides, that all resignations of justices of the peace shall be made to the clerk of the court of common pleas, and the justice so resigning shall at the same time give notice to the township clerk, who shall within three days notify the township trustees, who shall proceed as in other cases of vacancy.

By this section all steps toward filling the vacancy begin with the resignation to the clerk, and nothing is said about an acceptance of the resignation. At the same time of the resignation the township clerk is to be notified. Within three-days thereafter the trustees are to receive notice, and they are then to proceed as in other cases of 'vcir candes. Here is a clear recognition that the vacancy is produced by the resignation alone, without an acceptance by the clerk, or any one else.

Section 1952 provides, that a policeman shall not resign unless he gives two weeks’ notice thereof in writing, under penalty of forfeiting all pay due him. ' This section recognizes the right of a policeman to resign at once and without notice, by forfeiting the pay due him. At common law no such-statute would be necessary, because the same object could be attained by simply refusing to accept his resignation.

Section 37 provides, that the resignation of a-senator or representative, which is tendered during any session of the general assembly, shall not. take effect until the branch of which the person tendering it is a member, has accepted the same-by a vote of a majority of the members elected to-such branch, exclusive of the person tendering his. resignation.

The provision in this section, that the resignation shall not take effect until accepted, recognizes the law to be, that but for such provision the resignation would take effect at once.

It is therefore clear that the legislature has had its attention called to this subject, and has seen fit to provide that as to members of the general assembly only, shall an acceptance be required to give validity to a resignation.

In cases of assignees (Sec. 6337), executors and administrators (Sec. 6015), guardians (Sec. 6274), commissioners of insolvents (Sec. 6360), and trustees of insolvent estates (Sec. 6334), provisions are made for the acceptance of resignations, but nowhere is any provision made for the acceptance of the resignation of an elected officer, except members of the general assembly.

By the statutes referred to, a clear intention is evinced that acceptance shall - not be necessary to the validity of a resignation, except as to members of the general assembly, and persons appointed to certain positions of trust, and these exceptions only tend to make more clear the intention. These statutes also show that office-holding is not regarded as compulsory in this state. It is, therefore, clear, that the common law rule as to accept-' anee of resignations, has been abrogated in Ohio, to the extent at least of authorizing the filling of the vacancy.

In many of the states, it is held, that a resignation of an officer takes effect 'at once without acceptance by any one, and that the holding of office is not compulsory. This is said to be the modern doctrine on this subject. U. S. v. Wright, 1 McLean, 509; McCreary on Elections, section 270; People v. Porter, 6 Cal. 26; State v. Clarke, 3 Nev. 566; Olmsted v. Dennis, 77 N. Y. 378; State v. Mayor, 4 Neb. 260; Bunting v. Willis, 27 Gratt. 144; S. C., 21 Am. R. 338; State v. Hauss, 43 Ind. 105; Gilbert v. Luce, 11 Barb. (N. Y.) 91; Leech v. State, 78 Ind. 570.

Iii this last case, Leech v. State, a school trustee on March 1, 1880, presented his resignation of that date to take effect from and after March 5 of the same year. On the same first day of March a successor was appointed to fill out the unexpired term of the resigning trustee. In a contest over the office it was claimed that the appointment was void, because it was'made on March 1, when the vacancy did not occur by the terms of the resignation until from and after March 5. The court held, that the resignation made the office so far vacant on March 1, as to give jurisdiction to appoint a successor to fill out the unexpired term, the appointee’s term to begin from and after March 5.

The policy of the state, as shown by our statutes, favors the filling of vacancies in office by election as soon after a vacancy occurs as is consistent with proper care and consideration on part of the public. A proper regard for the rights of the people requires that it shall not be in the power of any officer, or body of men, to refuse to accept a resignation, and thereby prevent an election at the proper time to fill the vacancy. Such power, if conceded to exist, might tempt a partisan officer to delay the acceptance of a resignation until too late to fill the vacancy at the succeeding election, and thereby lengthen, by one year, the term of office of his own appointee. More harm is to be feared from this source, than from a hiatus in office, an event not likely to occur in this state where men able and willing to fill office are so' numerous.

The responsibility of a hiatus in office, should rest upon the person or body holding the appointing power, rather than upon the resigning» officer. If the appointing power properly performs its official duties, no harm is to be feared from a hiatus in office.

It is, therefore, clear, on principles of public policy, as well as a proper construction of our statutes, that acceptance is not necessary to the validity of a resignation, in so far at least as to authorize the filling of the vacancy; and that the resignation in question in this case took effect on the first day of March, 1893, so as to create a vacancy which could be lawfully filled at the following April election.

What the rights of the public, or the duties of the resigning officer, may be for the protection of public interests and property from the date of the resignation to the filling of the vacancy, is not involved in this case, and need, not now be decided. Should any danger be apprehended from that source, the proper remedj^ can be supplied by the law-making power.

The judgment of the circuit court is

Affirmed.


author: Williams, J.

text:
    State ex rel. v. Carpenter et al.

      Corporations — Remedy of Subscriber Entitled to Stock.

    When the proper officers of a private corporation organized for profit, refuse, on demand, to issue a certificate of stock to a person entitled thereto, his appropriate remedy is by action against the corporation for damages, or to enforce the issue and delivery of such certificate, in equity, either of which he may pursue, at his election. Mandamus is not the proper remedy.
    (Decided February 27, 1894.)
    Error to the Circuit Court of Ashtabula county.
    The case is stated in the opinion.

      Northway & Fitch, and Tracy Barnum, for plaintiff in error.
    We claim, from the facts found, that having subscribed for 310 shares of the capital stock, the relators were, and are entitled to a peremptory mandamus to compel the certificate to he issued.
    1. We have no other adequate remedy, either in law or in equity.
    2. The statute, section 6741, provides in express terms exactly for this case.
    3. Section 3254, of the Revised Statutes, provides: “Stockholders shall be entitled to receive certificates of their paid up stock in the company; and the president and secretary of the company shall on demand, execute and deliver to a stockholder a certificate showing the true amount of the stock held by him in the company. ” Dutten v. Vil, 42 Ohio St., 217; 1 C. C. R., 127; Freon v. Carriage Co., 42 Ohio St., 30; Norris v. Irish Land Co., 92 Eng. Com. Law, 511; Helm v. Swiggett, 12 Ind., 194; Kentucky v. Dennison, 24 Howard (U. S.), 66; State v. McIver, 2 S. C., 25.

      George A. Groot, for defendants in error.
    The right to have a writ of mandamus is a rig’ht conferred by statute, and is specially provided for. (See Title IV, Chap. 2, Revised Statutes.)
    There is nothing peculiar about this stock, as shown by the pleadings, and there is nothing to indicate that the relators could not obtain entire satisfaction in the ordinary course of the law, without resorting to this extraordinary remedy. If the stock certificates were actually in existence, properly executed, and the legal title was in the relators, and were held by these defendants, it is plain that they could recover the possession of the specific certificates in an action in replevin, or have a judgment for their value, if possession could not be obtained.

      A court will not issue a peremptory writ of mandamus unless it plainly appears that the relators do not have an adequate- remedy in the ordinary course of the law, and if the court should do such a thing, it would be a clear violation of the statute. Freon v. Carriage Co., 42 Ohio St., 30.
    "Was it the intention of the legislature to authorize the creation of corporations for profit, and then give to such companies rights that are not conferred upon an individual in respect to their obligations? There never was any such intention to make such distinction. The relators in the case at bar have the same rights and remedies ag’ainst this company as they would have if the company was an individual instead of a corporation.
    The purchasing of shares of stock in a private corporation for profit, gives the purchaser no more rights than the purchaser of any other kind of property would have against the person from whom he had purchased.
    In this case the public is in no sense interested; it is a matter of no public concern, it is simply a controversy between the company and the relators, and the court will not use this extraordinary writ for the purpose of enabling these people to secure property to which they say they are entitled, and thereby settle a controversy between them out of the usual and ordinary way.
    The whole weight of authority in this country is, that a court will refuse a mandamus if the rights of the party applying therefor is not clear, nor if he has a legal remedy by an ordinary action equivalent to a specific remedy. U. S. v. Bank Alexandria, 1 Cranch (C. C. 7); People v. Judges, L. Doug. (Mich.), 319; Morawetz Private Corp., Sec. 337; Williams v. Judge, 27 Mo., 225; High on Extr. Rem., Sec. 313; State v. Graves, 19 Md., 351; Wood on Mandamus, 23; Smith v. Chicago, etc., R. R. Co., 67 Ill., 191.
   Williams, J.

The original action was mandamus, brought in the court of common pleas of Ashtabula county, by the plaintiff in error, against the President, Secretary,' and Treasurer of The Baker Engine and Machine Company, a manufacturing corporation organized in this state, to compel them to issue to the relators, Bross and Baker, certificates for three hundred and ten shares of the company’s stock, of one hundred dollars each, which, it is alleged, the relators duly subscribed and paid for, and for-which the defendants refuse to issue certificates to them. The relators allege that they have no adequate remedy at law, and pray for a peremptory writ. The answer denies that the relators paid for the stock, or paid any sum whatever on their subscription, and avers they are indebted to the company for the full amount thereof, namely, thirty-one thousand dollars. The court found the issues for the defendants; and held, furthermore, that the remedy of the relators at law was adequate, and on both grounds denied the writ. The circuit court, to which the cause was taken on appeal, stated its conclusions of fact and of law separately, at the request of the plaintiff. It found that the relators fully paid for -the stock, and were entitled to the certificates, but held their remedy was in equity, and for that reason refused the writ; and it is claimed here, that in so holding, that court committed an error.

The cases are in conflict upon the question whether the remedy by mandamus may be employed to compel the issue or transfer of certificates of stock of a private corporation. The remedy, in this state, is controlled by statutory regulations which define the writ, and determine the cases in which it may issue. “Mandamus is a writ issued in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” Revised Statutes, section 6741. A limitation upon the remedy is contained in sec-' tion 6744, which provides, that, “The writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law.” The duty of issuing certificates of stock of a private corporation, to those entitled to receive them, is specially enjoined upon its officers, it is claimed, by the following provision contained in section 3254, of the Revised Statutes, viz.: “Stockholders shall be entitled to receive certificates of their paid-up stock in the company; and the president and secretary of the company shall, on demand, 'execute and deliver to a stockholder a certificate showing the true amount of the stock held by him in the company. ” And we think there can be no doubt that such a corporation is bound, through its proper officers, to issue to each stock subscriber who has fully paid for his stock, a certificate truly representing his interest in the corporation. But the question still remains, what is the appropriate remedy for the refusal or failure to do so? If there be “a plain and adequate remedy in the ordinary course of the law,” the courts are prohibited by statute from issuing the writ of mandamus. Shares of stock in a private corporation are personal property; and it has long been settled that an action for damages for their conversion may be maintained, upon the refusal, on demand, to issue or transfer certificates to persons entitled to them. True, there has not always been uniformity in the rule applied in determining- the measure of the damages in such cases; it being held in some, that the value of the stock at the time of the conversion is the measure of the damages that may be recovered; in others, its value at the time of the trial; and in others still, its hig’hest value at any time between the conversion and trial. The first of the rules above stated is the one which seems generally to prevail, unless there is something in the nature or circumstances of the conversion which enhances the damag’es. But the damages are not necessarily limited to the market value of the stock. Its actual value may be recovered; and that may be shown by proof of the value of the property and business of the corporation, its good will, and dividend-earning capacity. Freon v. Carriage Company, 42 Ohio St., 38; Cook on Stock and Stockholders, section 581.

Besides, “remedy in the ordinary course of the law,” is not confined to those actions which before the adoption of the civil code were actions at law, but embraces what were suits in equity as well; and if, for any reason, an action for damages might prove inadequate for the full redress of the relators’ injury, we see no reason why they could not obtain that complete measure of relief in equity. It was held by this court, in Railroad Company v. Fink, 41 Ohio St., 321, that a suit in equity may be maintained against a corporation to compel it to issue a stock certificate, to a subscriber, or his assignee, upon tender of the sum subscribed. Indeed, that remedy is well established, and is the one generally pursued in such cases, and also m cases where the transfer of stock on the books of the corporation, or a certificate of such transfer, is sought. Cook on Stock and Stockholders, sections 61j and 391. In the last section cited, that author says, the remedy by suit in equity is the most complete and most just one for compelling a corporation to register a transfer of stock, and “is a remedy applicable to almost all cases arising under a refusal of a corporation to allow a registry of transfer. The case will be decided on equitable principles, however, and a transfer will not be decreed if it involves bad faith. The relief usually demanded is in the alternative, being either for a registry of the transfer, or damages in lieu thereof.” The reasons which conduce to the holding that a suit in equity is the most satisfactory and complete remedy to accomplish the registration of transfers of stock, apply equally when the object sought is the issue of certificates originally. Mandamus is not well adapted to the trial of questions of fact, or the determination of controversies of a strictly private nature. Its office' is rather to command and enforce the performance of those duties in which the public have some concern, and where the right is clear, and does not depend upon a Complication of disputed facts which must be settled from the conflicting testimony of witnesses.

There is nothing in the facts of the ease before us which show that an action for damages, or suit in equity, would not furnish the relators a plain and adequate remedy for the wrong complained of. It is not alleged that the corporation has refused to admit them as members of that body, or denied them the right to vote or be voted for’ or to exercise their privileges as stockholders; nor, that any of their personal advantages or privileges as such, have been interfered with. The writ of mandamus has sometimes been issued to compel the admission of members in corporate bodies when essential to the preservation of personal advantages -to which they, show themselves to be clearly entitled. The petition alleges, in general terms, that the relators “have no remedy at law;” but that amounts to nothing more than a declaration of the pleaders opinion, and, as an allegation of fact, is without force. Our conclusion is, that where the officers of a private corporation, organized for profit, refuse, upon demand, to issue a certificate of stock to a person entitled thereto, his appropriate remedy is by action against the corporation for damag’es, or in equity to enforce the issue and delivery of the certificate. If, for any reason, the one does not, the other will, afford him a plain and adequate remedy, and he may resort to either at his election. Mandamus cannot, therefore, be properly invoked.

Judgment affirmed.


text:
    Osborn et al. v. Lidy.

      Venue — Executors, Administrators, etc.— Where may be sued.

    Under the provisions of section 5031, of the Revised Statutes, actions against an executor, administrator, guardian, or trustee, may be brought either in the county where he resides, or was appointed) or in which personal service of a summons may be obtained upon him.
    (Decided February 27, 1894.)
    ERROR to the Circuit Court of Holmes county.
    The case is stated in the opinion.

      Voorhees Hunt and G. F. Voorhees, for plaintiffs in error.

      We contend, that the court had no jurisdiction of their person. The solution of this question depends upon the construction of section 5031, of the Revised Statutes, of Ohio, formerly section 53 of the code.
    If the section as amended is to have the enlarged construction, then administrators, and the other trust officers named, may be sued in more counties in the state than any other natural person. But if the intention was to limit the jurisdiction, then such officers can only be sued in counties where they reside or are appointed. Under the title Venue of Actions, Chapter 5, of the Code, sections 5022 to 5030, provision is made as to the venue of certain actions, when the general rule as to other actions, with exceptions, is given in section 5031. Owens v. Hall, 13 Ohio St., 571.
    In the construction of statutes, effect must be given to exceptions. The effect of an exception is to restrict from application to the matter excepted, the general language of the section or statute, which without the exception would have included the same; and it is clear, that its effect must reach and control the construction of the general language of the enactment, preceding or . following, so far as its applicability extends. Endlich on the Interpretation of Statutes, section 184, and authorities there cited; Sutherland on Statutory Construction, section 222; Sedgwick on Statute and Constitutional Law, 423.
    A direction contained in a statute, though couched in merely permissive language, will not be construed as leaving’ compliance optional, where the good sense of the entire enactment requires its provisions to be deemed compulsory; but in every case it is one of intention, and the intention is to be judged of by the purposes of the statute. Endlich on the Interpretation of Statutes, section 312; Sutherland on Statutory Construction, sections 460, 461, 462; Richardson and Wife v. Wells, Admr., 3 Texas Rep., 223; Cross v. Armstrong, 44 Ohio St., 627.
    We would also cite and call the Court’s special attention to the case of Richardson and Wife v. Wells, Admr. of Pruitt, 3 Texas, 223; Neill v. Owens, Admr., 3 Texas, 145; Security Insurance Co. v. Taylor, 2 Bissell Rep., 446.

      Critchfield & Huston, and L. R. Critchfield, Jr., for defendant in error.
    The consideration of this question involves sections 5022 to 5031, inclusive, of the Revised Statutes. Sections 53 S. & C., Revised Statutes, Vol. 2, p. 960. Vol. 70 O. L., p. 138.
    In the revision of 1880, S. & C., section 5031, Vol. 2, first appears the section as it now stands.
    The whole chapter on venue indicates, an enlarg-ement in favor of the creditor. Section 5022 is enlarged by 5023 and 5024. The exception in 5025 is worthy of particular notice.
    The case of Owens v. Hall, 13 Ohio St., 571, construes section 5024 as an enlargement of the remedy.
    An action for specific performance is provided for by implication at least in 5022, but why not confine it to residence as provided in section 5024? Because section 5024 is an enlargement of the remedy , the action in this ease is a personal action, and the claim of the plaintiffs in error would seem to revive, as to the construction of the statute in question, the old distinction of local and transitory actions. Genin v. Green, 10 Ohio, 214.

      Section 5031, ought to he liberally construed. Remedial statutes are liberally construed. Macy v. Card, 2 Ohio St., 431, 441; Boley v. O. L. Ins. & T. Co. 12 Ohio St., 144: State ex rel. Whitman v. Governor, 5 Ohio St., 528; Cooley’s Const. Lim. 61.
   Williams, J.

On the 25th day of April, 1885, the plaintiffs in error, Hubert D. Osborn and Robert Graham, were appointed by the probate court of Coshocton county, administrators with the will annexed, of the estate of Truman Osborn, deceased. They were both residents of that county, and, after qualifying, entered upon the execution of the trust. Afterward, John Lidy, the defendant in error, presented to them for allowance, a claim for .an alleged indebtedness of Truman Osborn to him, which they rejected on the 15th day of June, 1888. Lidy then brought suit upon his claim, in the court of common pleas of Holmes county, where personal service of summons was obtained upon each of the administrators. They filed their motion to dismiss the action, on the ground, that when it was commenced and the service obtained, they resided in Coshocton county, where their appointment as administrators was made; their claim being, that they were not liable to suit in any other county, and therefore, the service of the summons upon them in Holmes county, did not give the court jurisdiction over them. They disclaimed, in their motion, any intention of ‘ ‘ entering an appearance upon the merits of the case,” or for any purpose other than making their objection to the jurisdiction of the court, upon the ground stated. The motion was overruled, an exception noted, and a bill of exceptions duly taken, showing that the facts upon which the motion was based were established to the satisfaction of the court. The defendants then answered, setting up as their first defense, the facts stated in the motion, and alleging that by reason of them, the court had no jurisdiction of the defendants. A demurrer to this defense was sustained. The answer contained other defenses that went to the merits of the plaintiff’s claim. It is not important to state them here. Upon the issues raised by them, and the reply, the cause was tried, and judgment recovered by the plaintiff, which was affirmed by the circuit court.

The principal question presented, is whether, under our present legislation, an action against an administrator can be prosecuted in any county in which personal service of the summons can be obtained; or, must it be brought in the county where he was appointed, or resides ? The answer to the question is found in section 5031, of the Revised Statutes, which reads as follows: “Every other action must be" brought in the county in which a defendant resides or may be summoned, except actions against an executor, administrator, guardian or trustee, which may be brought in the county wherein he was appointed or resides, in which cases summons may issue to any county.”

Two views of this section are advanced in argument. One excludes actions of the kind mentioned in the exception, from the operation of the preceding clause, .and limits thfe places where they may be brought, to the county in which the defendant was appointed, or resides; and the other, gives the exception the effect of extending the venue of such actions, so as to permit them to be brought in the county where the defendant was appointed, as well as in the county in which he resides, or may be summoned. The section follows those which provide where actions of a local nature, and actions against certain classes of corporations and companies shall be brought; and by the words “every other action,” in the section quoted above, is meant all actions, other than those mentioned in the preceding sections. The general provision of the section requires all such actions to be brought in the county where the defendant resides or may be summoned; and but for the exception, actions against executors, administrators, guardians or trustees, could not be brought elsewhere. The exception was designed, we think, to take actions against them out of that requirement, and permit them to be brought also in the county where they received their appointment.' The contrary construction renders it necessary to give the word “may,” in the exception, the meaning of “must;” which, it is apparent from the whole section, was not the legislative intention. In the general provision, “must” is evidently used in its appropriate sense; and the employment of the word “may,” in the exception, shows that-in the enactment of the section the precise meaning of both words was present in the legislative mind. And they appear to have been used in their proper sense throughout the chapter of the code on the venue of action'. Thus, it is provided- that actions for the recovery of real property, or an estate therein, must be brought in the county where the subject of the action is situated, except that an action to compel the specific performance of a contract for the sale of real estate may be brought in the county where the defendants or any of them reside. Sections 5022 and 5024, of the Revised Statutes, (Code, sections 45-46). The provision embraced in the above exception, this court has held, is permissive and not exclusive; so that, an action for specific performance may be brought either in the county where the land lies, or where the defendant resides. Owens v. Hall, 13 Ohio St. 571. So, section 5030, provides that, “An action against a non-resident of this state, or a foreign corporation, may be brought in any county in which there is property of, or debts owing to, the defendant, or where such defendant is found; but if the defendant is a foreign insurance company, the action may be brought in a county where the cause, or some part thereof, arose. ’ ’ That section is the reenactment, without change, of original section 52 of the code, under which, in an action against a foreign insurance company, it was claimed that the last clause prescribed the place where such companies could be sued, and, that they could be sued in no other county. But this court held otherwise, in Handy v. Insurance Company, 37 Ohio St. 366. In the opinion of the court in that case it is said: '“This clause was intended to give an additional remedy against foreign insurance companies doing business in this state; namely, to make them liable to actions in the county where the causes of action arose, although they might not have property or debts due in such county, or might not even be found in such county.”

The provisions contained in the exception to section 5031, were added by way of amendment to original section 53 of the code, and were intended, we think, to enlarge the remedy against executors, administrators, guardians and trustees. The object in view, probably was, to better protect the rights of the creditors, heirs and distributees of estates, wards, and cestui que trusts, by affording the additional remedy for their enforcement. The words, “or resides,” in the exception, are superfluous. They add nothing to the purport of the section, and appear to have been inserted through inadvertence. They are incongruous with the concluding sentence of the section. The phrase “in which eases,” refers in terms, as aptly to cases brought in the county where the defendant resides, as-to those brought in the county where he was appointed; yet, in the former, service may be obtained by leaving a copy of the summons at the residence, and no occasion for issuing the writ to another county, can arise; while in the latter, it may, for the defendant may not reside in the county where the appointment was made. The proper application of that provision is, therefore, limited to actions of the latter class. It was not necessary, in either class of cases, in order to authorize the issuing of a summons to another county, against a co-defendant. That is specifically provided for, and regulated by section 5038.

The chapter of the civil code on the venue of actions prescribes reasonable and convenient rules with respect to the places where actions may be prosecuted, which, like other provisions of the code, must be construed liberally, with a view of advancing the remedies it affords; and that construction of section 5031, requires us to hold, as we do, that under its provisions, actions against executors, administrators, guardians or trustees, may be brought, either in the county where they reside, or were appointed, or in which personal service of a summons may be obtained upon them. This conclusion renders it unnecessary to enter upon the consideration of the other question argued by counsel, that is, whether the motion or answer of the defendants in the action below effected their appearance, and in that way gave the court jurisdiction. It obtained jurisdiction by the service of the summons.

Judgment affirmed.