text:
    The Cincinnati House of Refuge v. Patrick H. Ryan.
    1. The proceedings and commitment of a minor, whose father is living, to the house of refuge, under the third clause of section 2087 of the Revised Statutes, as amended (77 O. L. 217), are not void for want of notice to the father.
    2. The statute under which such proceedings and commitment of homeless children are authorized, is not repugnant to section 14 or section 16 of article 1, of the state constitution, as the law provides a full and complete remedy by habeas corpus for any infringement of parental rights.
    3. On a hearing of habeas corpus, the father, if an unsuitable person, is not entitled to the custody of such child, on the ground that he had no notice of the proceedings under which the child was committed to the house of refuge.
    Error to the Superior Court of Cincinnati.
    This was a proceeding in the court below, by defendant in error, to obtain the custody of his three minor children. In ■ his petition for a writ of habeas corpus he avers that he is the father of these children, all of whom are under the age of six years; that their mother is dead, and that he has always provided for them in a suitable manner and is still willing so to do; that they were forcibly taken from his home, on the 16th of November, 1880, and carried to the Children’s Home, and from thence, upon the commitment of Henry Harmyer, a justice of the peace, of Hamilton county, committed to the house of refuge; that he had ho notice of the taking of these children, or of these proceedings. He therefore claims, that the custody of said children by plaintiff in error is without legal authority. The answer of the directors of the house of refuge justifies the custody and detention under the warrant of commitment of said justice of the peace.
    It appears that these children were found by one Joseph L. Smith, an officer of the society for the prevention of cruelty to children, and brought before the justice for hearing upon his affidavit that they were without a home and homeless.
    On the hearing, which took place the same day, and without notice to the father, the justice found from the testimony of said officer, that they were infants under the age of sixteen, without a home and homeless, and were suitable persons to be committed to the discipline and instruction of the Cincinnati house of refuge. He thereupon committed them to said house of refuge, until discharged by due course of law, or until they attain their respective majorities.
    On the hearing upon habeas corpus, evidence was adduced pro and con, touching the fitness of the father to have the custody of these children, and as to the truth of the warrant of commitment.
    In rendering its decision the court held, that the proceed ings before the justice, being without notice to the father, were void, and for that reason alone, the children were discharged from the house of refuge, and restored to the father. It is conceded by the court and by counsel for defendant in error that it did not appear that the father was a proper person to have the guardianship and control of these children. It is further conceded that the proceedings and commitment by the justice were in all respects regular and valid, unless want of notice to the father invalidates them. It is for want of such notice alone that the children were discharged.

      D. Thew Wright, for plaintiff in error:
    The act (77 Ohio Laws, 217) under which these children were sent to the house of refuge is said to be uneonstitutional, because it sends to prison, or provides for restricting tbe liberty of one who has committed no crime. If it were true that none could be restrained of their liberty save criminal',, then no witness could be committed in order to secure his testimony. Yet this is authorized when a witness fails to enter into a recognizance to appear. Rev. Stats. § 7153.
    Upon a proper application, a probate judge issues his warrant (Hurd Habeas Corpus, book 1, ch. 2, § 2, p. 8,) and commits an insane person, one who is incapable of crime, to an asylum. Rev. Stats. § 705. Certain of the insane may be confined in jail. Id. §§ 707, 708. Thus patients are sent to Longview Asylum. Id. § 741.
    Incorrigible children are committed to the reform school. Id. § 752. “ Incorrigible ” are those who may commit crime. They are committed for this reason; not because they have committed crime.
    The foundation of all these laws is simply the necessity of the case. It is neither a criminal prosecution, nor a proceeding in which the right to a trial hy jury is guaranteed. State v. Prescott, 19 Ohio St. 184. It is one of those police regulations which all governments can enforce. Munn v. People, 69 Ill. 88; s. c., 94 U. S. 113; Cooley Con. Lim. 572; People v. Turner, 55 Ill. 280; Gishwiller v. Dodge, 4 Ohio St. 615; Clarke v. Bayne, 32 Ohio St. 299; Hurd on Habeas Corpus, 41, 483.
    As to notice, see, by analogy, Shroyn v. Richmond, 16 Ohio St. 455 ; Hagany v. Cohnen, 29 Ohio St. 82; Cupp v. Comm'rs, &c., 19 Ohio St: 173; Cooley Cons. Lim. (4 ed.) 506; Rev. Stats. §§ 3118, 3119.
    It does not follow that because any one can pick up in the street houseless and homeless children, and carry them to the house of refuge, they can be retained there forever, against the will of those who are entitled to thfeir custody. The law has been careful to guard against this and to prevent abuse perpetrated under the guise of kindness. Section 2061 of the Revised Statutes provides : “ But any infant, by whomsoever or for whatever cause committed, may at any time be discharged upon the order of the board duly entered upon its minutes, or upon habeas corpus if the court or judge, upon hearing, decide that neither the interest of the minor nor of the public will be endangered by such discharge.” The wrong, therefore, if any, is not the taking the child to the institution, and committing him under the circumstances named, but it is in keeping him there after it is discovered that he is not a fit subject to be an inmate.

      Goss & Peek, for defendant in error,
    contended that the father could not be deprived of his right to his children or the children of the care and protection of their father in the summary manner exercised in this case. That proceedings against a party without notice or service of process are void for want of jurisdiction.
    If the statute authorized such a proceeding as was had in this case, it is void because in conflict with sections 1, 14 and 16, of the bill of rights of the constitution.
    It contravenes section 14 because it was an “ unreasonable seizure. ” It contravenes section 16 because the judgment of the justice would, without due process of law, take away the right of the parent to the services and earnings of the children during minority, which is a right of property. It contravenes section 1 because it interfered with the liberty and the right of “ seeking happiness and safety ” there guaranteed to all the people.
    As to the remedy by habeas corpus, provided by section 2061 Revised Statutes, we have simply to say that it is hardly consistent with our ideas of jurisprudence that so important a right should be forfeited in a summary manner without the knowledge of the interested party, and that party then be left to convince a court that neither the interest of the minor nor of the public would be endangered by righting the wrong. The parent seeking to assert his rights under that section (2061) must come into court stripped of all the ordinary presumptions of law. He must show affirmatively that he is a fit and proper person to have charge of his own children. The potent affidavit, prescribed by the statute in such proceedings, has made him prima facie a wretch or a drunkard, and he must clear himself of these presumptions, and otherwise convince the court that there would be no dcmger of injury to the child or the public. Without a hearing he has been adjudged guilty and must prove himself innocent. We cannot believe that such is the law.
   Johnson, J.

Section 2087 of the Revised Statutes, as amended 77 O. L. 217, paragraph 3, is the law under which these children were committed to the house of refuge. That paragraph authorizes a mayor, police judge or justice to commit minors under sixteen years of age, upon complaint and due proof that they are homeless, or are without proper and suitable homes.

Section 2061 provides that, No commitment of an infant to a house of refuge and correction shall be for a shorter period • than till such infant shall be reformed, or attain the age of majority, except in case of infants committed to await their trial, or as witnesses, and except in such cases as the board may, by its general rule, provide ; but any infant, by whomsoever or for whatever cause committed, may at any time be discharged upon the order of the board duly entered upon its minutes, or upon habeas corpus, if the court or judge, upon hearing, decide that neither the interest of the minor nor of the public will be endangered by such discharge. ”

This section was amended 78 O. L. 253, but since final judgment was rendered in this case; hence the amendment need not be considered, as it does not affect the question at bar.

Houses of refuge and correction, established since May 7, 1869, are governed by sections 2031 to 2082 of the Revised Statutes, while those established prior to May 7, 1869, are governed by sections 2083 to 2090, as amended.

Section 2050, which is applicable to both classes of houses of refuge, provides that the board may, in its discretion, receive into such institution infants under sixteen years of age, committed to their custody by the mayor, judge or justice of . the peace, on complaint and due proof in the following cases :

1st. By parent, guardian, or next friend, of such infant, when, it appears, that by reason of incorrigible conduct, such infant is beyond control, and that from regard to the welfare of such infant and the protection of society, he should be placed under the guardianship of the board of directors of. such house of refuge. ' •

2d. When upon complaint by any one, and due proof that such infant is a proper subject for such guardianship, in consequence of vagrancy or of incorrigible or vicious conduct, and from the moral depravity of the parent, guardian, or next friend, they are incapable or unwilling to exercise proper care and discipline over such infant.

3d. When such infant is without a suitable home, and means. of obtaining an honest living, or is in danger of growing up to an idle and vicious life.

Sections 2051, 2052 and 2053 provide for commitment of such infants, committed of crimes and offenses.

Section 2051 authorizes grand juries, in their discretion, where the evidence against an infant under sixteen years of age would warrant an indictment, to return to the court that the accused is a suitable person to be committed to the guardianship and correction of the directors of the house of refuge. Thereupon, on notice to the minor and giving him an opportunity to be heard, the court shall, without a jury, dispose of the case, and if satisfied of the truth of the return, commit the accused.

The last clause of section 2061 clearly recognizes this principle :

“ But any infant, by whomsoever or for whatever case committed, may at any time be discharged upon the order of the board, duly entered upon its minutes, or upon habeas corpus if the court or judge, upon heari/ng, decide that neither the interest of the minor nor of the public will be endangered by such discharge.

No provision is made in the statute for notice to the parent, guardian or next friend.

It was not the intention to confer upon mayors and like officers judicial powers over the legal rights of parents to the custody of their children. The paramount object is the good of such infants as are destitute of parental care. It is the exercise -of that parental guardianship which the state has assumed. The proceeding is, in its nature, special. While notice to parents, or others standing in that relation to infants, should be given where practicable, it is not essential to the jurisdiction of the examining officer. These officers are not invested with power to finally adjudicate the legal rights of parties. The scope and purpose of this statute is to provide, in a summary manner, for the destitute and homeless, as well as the vicious, and to provide for the maintenance and discipline of those who might otherwise grow up in habits of idleness and crime. It is conceded that such a notice is not required when the infant is accused or convicted of crime, or is held as a witness. This is so, not because the parent has forfeited any of his legal rights, but because, in such cases, the police power of the state is paramount.. So, where the grand jury, in place of an indictment for crime, makes a return that the infant should be committed to the house of refuge, or the reform farm, the court, after notice to the infant alone, and without a jury, determines the case, and commits the accused.

If this is a correct exposition of the statute, the next inquiry is, whether an act which does not require notice, is against public policy, and in violation of the fundamental law of the land % The error of the court below consisted in assuming that the judgment of the committing officer divested the parent of his legal right, without an opportunity of being heard. It is obvious that this is a misconception. The proceeding is purely statutory. It is intended to provide a summary method for caring for destitute children.

The commitment is not designed as a punishment for crime, but to place destitute, neglected and homeless children, and those who are in danger of growing up as idle and vicious members of society, under the guardianship of the public authorities, for their proper care, and to prevent crime and pauperism. As to such infants, it is a home and a school, not a prison. While no provision is' made for a notice to those interested, if such there be, of the pendency of the proceeding, yet it would doubtless be proper for the examining officer, where it is practicable, before making the order, to require such notice, but the statute does not seem to require it as essential to the exercise of this power. As was said in Prescott v. State, 19 Ohio St. 188, where a similar question arose, “neither the infant, nor any person who would in the absence of such commitment be entitled to his custody and services, will be without a remedy.” The statute itself, as well as the provisions relating to habeas corpus, provide an adequate and complete remedy. In such a direct proceeding, the commitment does not operate to restrict the power of the court on habeas corpus, to inquire fully into the cause of the detention, and to determine upon the whole case, whether the parent is entitled to the custody of his child.

The court below should have fully heard this ease upon its merits, the commitment being in due form, and if the father was not a suitable person to have the care of these children, should have remanded them to the custody of defendants, until legally discharged. The authority of the state, as pa/rms pat/rice, to assume the guardianship and education of neglected homeless children, as well as neglected oi’phans, is unquestioned. The institutions of public charity, for this purpose, in this state, are a subject of just pride to every citizen. The provisions of law under which these institutions are maintained, should receive such a construction as will not defeat their humane intention. So long as the management of these institutions is held to public account, and is amenable to the courts, there need be no apprehension that personal rights will be infringed, especially where, as in this case, direct and ample remedies by habeas corpus are provided for the protection of the legal rights of parents and others.

Judgment reversed, and cause remanded.


source: Caselaw Access Project

author: White, J.

license: Public Domain

text:
    Commissioners of Athens County v. Baltimore Short Line Railroad Company.
    The provision in section 4 of the act further to prescribe the duties of county commissioners (S. & C. 250), declaring it to be essential to the validity of a contract entered into by the commissioners, that it shall be entered in the minutes of their proceedings by the auditor, is intended for the protection of the county from liability on such contract, unless evidenced or authenticated in the mode prescribed; but, where such contract has been fully performed on the part of the county, the other party to the contract cannot resist performance on his part, on the ground that it was not so entered. By accepting performance by the commissioners the defendant is precluded from raising the question.
    Error to the District Court of Athens County.
    The original action was brought by the Board of Commissioners of Athens County against the Baltimore Short Line Railroad Company, upon an agreement entered into between the parties. This agreement was, in substance, that, in consideration of the grant by the commissioners of the right to the company to use and occupy portions of a certain county road permanently and other portions temporarily, in the location, construction and operation of its railroad, the company agreed to restore such portions of said road as should be temporarily occupied to its former condition; and for such portions as should be permanently occupied by the railroad, the company would provide new portions of said road, so that the said county road should be as good and safe for the public as it was before it was taken possession of by the company.
    The petition avers that the. company took possession of the county road under the agreement, appropriating portions thereof to the use of its railroad permanently, and occupying other portions temporarily in the construction of its railroad but that the company had failed and refused to comply with said agreement on its part.
    Among other defenses, the defendant pleaded the following:

      “ II. And as a defense to the said petition so finally amended, the déf-endant says, that the engagement and contract in said amended petition set forth, was not entered in the minutes of the proceedings of said board by the auditor of said county.”
    On demurrer, this defense was adjudged a bar to the action, and judgment was rendered dismissing the petition. The judgment was affirmed by the district court; and the present petition in error is prosecuted to reverse both judgments.

      Charles H. Grosvenor, and Charles Townsend, for plaintiff in error:
    1. Where a railroad company made a contract with the board of county commissioners, by which said company was to occupy, for the purpose of its track, certain portions of a county road, and promised to make a new road as good as the old, it is not essential to the validity of - such contract that the action of the county commissioners in the premises be made a matter of record. Section 34, S. & C. Stats. 250. The contract is executed. The defendant has received its benefits. The statute is directory. It contains no negative words. Angelí & Ames on Contracts, § 254;' Dwarris on Stats. 606 ; Sedgwick on Stat. and Con. Law, §§368, 369, 370, 372, note, 375; Foster v. Prowse, Strange, 625; Rex v. Sparrow, 2 Strange, 1123; Rex v. Loxdale, 1 Barrow, 447; Rex v. Justices of Leicester, 7 Barne. & C., 6; Rex v. Inhabitants of Birmingham, 8 Barne. & C. 29, 35; Governors of Bristol v. Poore, 1 Adol. & El. 264; 11 Adol. & El. 73 ; 2 Adol. & El. 99 ; 1 Botts’ Poor Laws, 610; Cole v. Green, 6 M. & G. 872; 2 Id. 230 ; 7 Barne. & C. 6 ; 8 Id. 29; 9 Dowl. & Ry. 772 ; Lindley’s Law of Parnership and Joint Stock Co., 679. Sedgwick, in his work on Statutory and Constitutional Law, at page 375, says: “ The general principle that statutory provisions may, in certain cases, be treated as purely directory, has been recognized in all the States, and cites People v. John, 1 Mich. 452, 453 ; State v. McGinley, 4 Ind. 7 ; Colt v. Eves, 12 Conn. 243; Edwards v. James, 13 Texas, 52 ; People v. Supervisors of Chenango, 8 N.Y. 317. See also People v. Supervisors of Ulster, 34 N. Y. 272; Savage v. Walsh, 26 Ala. 620 ; Buckley v. Derby Fishing Co., 2 Conn. 254; Wute r. Derby Fishing Company, 2 Id. 260; City of New Orleans v. St.

      Rowes, 9 La. Ann. 573; Pond v. Negus, 3 Id. 230; Williams v. School District, 21 Pick. 75 ; City of Lowell v. Hadley, 8 Met. 180; People v. Allen, 6 Wend. 487; People v. Holley, 12 Wend. 481; In re M. & H. R. R. Co., 19 Wend. 143 ; In re Mt. Morris Square, 2 Hill, 20; Marchant v. Langworthy, 6 Id. 646 ; Striker v. Kelly, 7 Id. 9; Allen v. Parrish, 3 Ohio, 195 ; Blanchurd v. Bissell, 11 Ohio St. 103; Fry v. Booth, 19 Ohio St. 25.
    2. The railroad company haying gone upon such county road, and taken possession of it, and rendered it unfit for travel and in violation of its promise refuses to construct a new road, it is estopped to set up the failure of the auditor to enter such contract on the record as a defense to an action for damages by the county for such violation. Comm'rs. &c. v. Aspinwall, 21 How. (U. S.) 539 ; Woods v. Lawrence Co., 1 Black, 386; 2 Black, 722 ; 24 How. 287 ; Zabriskie v. Railroad Co., 23 How. (U. S.) 381; Mercer Co. v. Hachett, 1 Wall. 83; Gelpcke v. City of Dubuque, 1 Wall. 175 ; Meyer v. City of Muscatine, 1 Wall. 384; Rogers v. Burlington, 3 Wall. 654; Marsh v. Fulton Co., 10 Wall. 676; Angell & Ames on Corporations, §§ 238-240 ; 7 Ohio St. 327; 8 Ohio St. 394; 12 Ohio St. 624.

      E. A. Guthrie, De Steigner, Jewett & Slattery, for defendant in error.
   White, J.

Had the railroad company obstructed the highway without authority, section 17, of: the act establishing boards of county commissioners, as amended March 7, 1873 (70 O. L. 53) would have afforded an adequate remedy. Little Miami R. R. Co. v. Commissioners of Greene County, 31 O. S. 338.

But the amended petition, on which the case was adjudicated, is founded on an agreement entered into between the commissioners and the railroad company, under section 12 of the act providing for the creation and regulation of incorporated companies, as amended April 15, 1857. S. & O. Stats. 278. The agreement prescribes the terms and conditions upon which the railroad company was to occupy and use the highway; and the company having taken possession of the highway and appropriated it to the uses of the railroad, under the agreement, the question is whether the company is bound to perform the agreement on its part.

The company rests its defense on section 4 of the act of April 8, 1856, further to prescribe the duties of county commissioners. S. & C. Stats. 249. The section is as follows: “It shall be essential to the validity of every contract entered into by the county commissioners, or order made by them, that the same shall have been assented to at a regular or special session thereof, and entered in the minutes of their proceedings by the auditor. ”

The ground on which the company claims to be relieved from the performance of the agreement, is that it was not entered in the minutes of the proceedings of the commissioners as required by this section.

The object of the section is to protect the county from liabilities of the character named in the section, unless they are evidenced or authenticated in the mode prescribed. But where the agreement has been fully executed by the commissioners on the part of the county, and the defendant is in the full enjoyment of the lights and benefits intended to be conferred by the agreement, the failure to record cannot avail as a defense. The defendant is, in such case, upon the plainest principles of justice, precluded from raising the question.

Judgments reversed, demurrer sustained to the second defense, and the cause remanded to the court of common pleas for further proceedings.


author: Oket, J.

text:
    Dayton National Bank v. Merchants’ National Bank
    1. A pledgee of shares of the capital stock of a national hank, having an irrevocable power of attorney for the transfer of such shares to him on the books of the bank, brought suit for the value of such stock against the bank, which, after notice that the pledgor had been adjudicated a bankrupt, had refused to permit such transfer to be made. The assignee in bankruptcy of the pledgor, having been made a party by consent, filed an answer and cross-petition praying for an account of the amount due the pledgee and a sale of the stock, which prayer was granted. Held, that it is error for the court to render a further judgment that, in the event the proceeds of the sale are insufficient to satisfy the pledgee’s claim, the bank shall pay the deficiency, not exceeding the difference between the proceeds of the sale and the value of the stock at the time of such refusal.
    2. Where part of a promissory note is paid, and a note in renewal is executed for the balance, a pledge given as collateral security when the first note was executed, will stand as collateral security for the balance of the debt embraced in the new note, in the absence of any agreement to the contrary.
    Error to the Superior Court of Montgomery County.
    The parties above named are corporations organized under the national banking acts, and engaged in the business of banking at the city of Dayton. On November 8, 1873, Andrew Gump, being the owner of thirty shares, each for $100, of the capital stock of the Dayton National Bank, assigned' the same to the Merchants’ National Bank, and executed to it an irrevocable power of attorney authorizing its president to transfer such shares on the books of the Dayton National Bank, and receive a new certificate. This transfer of stock was made as collateral security, to secure to the Merchants’ National Bank the payment of a loan of money made November 19, 1873, evidenced by a promissory note for the amount, $1,500, upon which note Gump was liable. On February 9, 1874, the sum of $300 was paid on the note, and a new note for the balance, $1,200, was executed, payable in ninety days, and the collateral security was retained. It is further claimed by the Merchants’ National Bank, that the stock was pledged by Gump and held by it as collateral security for the payment of four other promissory notes, upon which he was liable, three of them executed in December, 1873, and the other in January, 1874, the four notes amounting to $2,550, and being given in renewal of notes outstanding when the stock was pledged ; but this claim is denied by the Dayton National Bank in its answer in the suit hereinafter mentioned.
    The Merchants’ National Bank presented the certificate for the shares and the power of attorney to the Dayton National Bank, and demanded a transfer of the shares on the books of the bank and the issue of a new certificate for such shares ; but the Dayton National Bank refused to permit such transfer to be made, or to issue such certificate; and afterward, on June 13, 1874, the Merchants’ National Bank brought suit against the Dayton National Bank, seeking to recover damages in the sum of $4,500, “ and other relief, ” by reason of the matters above stated.
    During the pendency of the action, Alfred Pruden was made a defendant, who filed an answer and cross-petition, in which he avers that said note for $1,500 was delivered up to the makers and canceled, and that the stock was never pledged as collateral for the note for $1,200, nor for the payment of any of the above mentioned notes; that he, Pruden, is the assignee in bankruptcy of said Gump, and has received a deed of assignment under the bankrupt act, conveying to him the property of every sort, owned by said Gump, or to which he was entitled, or in which he was interested, on March 26, 1874 ; and that, as such assignee, he demanded the stock of the Merchants’ National Bank, but the bank refused to deliver the same to him. He asked that the court should decree a cancellation of the certificate of stock in the hands of the Merchants’ National Bank, and award judgment against the Dayton National Bank for the value of the stock, and prayed for such other and further judgment as might be warranted.
    All the persons liable upon the promissory notes hereinbefore referred to are insolvent.
    The case was submitted to the court on the pleadings and testimony, and the court found that at the time the creditors of Gump filed them petition in bankruptcy, that is, on March 26, 1874, the Merchants’ National Bank held the shares of stock as collateral security for the payment of all the above mentioned notes, amounting in principal to $3,750; that the indebtedness, when the stock was received from Gump, as collateral security, on November 8, 1873, was evidenced by other notes, those above mentioned being given in renewal thereof; that after’ the appointment of Pruden as such assignee, he gave notice to the Dayton National Bank to not pei’mit any transfer of the stock on its books to the Merchants’ National Bank, and not to issue to it any certificate for such stock; that this was before the Merchants’ National Bank had recpiested that such transfer be made or such certificate issued; and that subsequently to such notice by the assignee, and before bringing suit, the Merchants’ National Bank requested the Dayton National Bank to make such transfer, or permit it to be made, and issue such certificate, which request wras refused. The court decreed that the Dayton National Bank should pay the Merchants’ National Bank the amount of four dividends on the stock, after deducting taxes paid on the stock, and that the balance of such dividends should be applied on the indebtedness to the Merchants’ National Bank, amounting to $1,191.82. The decree then proceeds as follows: “And it is further ordered, adjudged and decreed that, for the purpose of paying the balance remaining unpaid of such indebtedness, the Merchants’ National Bank shall, after giving notice by publication in some newspaper of- general circulation in Montgomery county, of the time and place of such sale, proceed to sell said thirty shares of capital stock to the highest and best bidder, and shall, by its president, duly transfer and assign to such purchaser the stock upon the books of the Dayton National Bank; whereupon the Dayton National Bank shall, by its proper officers, issue to such purchaser a new certificate for said thirty shares, and after paying the costs and expenses strictly incident to such sale out of the proceeds of the same, the balance shall be applied to the payment of the amount remaining unpaid of such indebtedness, with interest. And in case there shall be any surplus remaining of such proceeds of the sale, after the indebtedness and such costs and expenses shall be fully paid, the same shall be paid over to Alfred Pruden, assignee as aforesaid. And in the event that upon such sale the stock should be sold for less than $125 per share, its value at the date of such refusal, and by reason of its sale for such lesser amount, the proceeds shall be insufficient to fully pay the amount then remaining unpaid, with interest, then and in that case the Dayton National Bank shall pay to the Merchants’ National Bank any such deficiency balance, provided the same shall not exceed the difference between the amount such stock shall actually have brought, and said sum of $125 per share; and it is further ordered that the Dayton National Bank pay the costs of this suit, taxed at $ .”
    On application of the Dayton National Bank and Alfred Pruden, assignee, this petition in error was, on leave, filed in thi's court.

      Houk & McMahon and Craighead & Craighead, for defendant in error:
    I. National banks can loan on “ personal security.” This is in contradistinction to “.real security,” and embraces all .methods of personal security not expressly prohibited in the statute. National banks cannot loan on their own stock, or on legal tender or national bank notes, nor on real estate. But loans on collaterals of any other kind are usual, and therefore incidental. This is definitely settled in a recent case in the supreme court of the United States, and is therefore the law. National Bank v. Case, 99 U. S. 632. See also Shinkle v. Bank of Ripley, 22 Ohio St. 517; National Bank v. Boyd, 44 Md. 47; Talmadge v. Pell, 7 N. Y. 343. But even if the power did not exist, the borrower could not avail himself of the defense. National Bank v. Matthews, 98 U. S. 628; National Bank v. Loomis, 51 Vt. 349 ; Wroter's Assignee v. Armat, 31 Grat. 228.
    II. The assignment and delivery of the certificate, with a power of attorney to transfer, made the transaction complete, and vested full title in the Merchants’ Bank. Transfer on the books was not necessary. Black v. Zacharie, 3 How. (U. S.) 513; McAllister v. Kuhns, 96 U. S. 87; McNeil v. Tenth National Bank, 46 N. Y, 330 ; Conant v. Seneca Bank, 1 Ohio St. 299. Such complete title having vested, was not affected by the subsequent proceedings in bankruptcy. Bank of Louisville v. State Bank; 14 Am. Law Reg. N. S. 281; Jerome v. McCarter, 94 U. S. 738.
    III. The refusal to make the transfer amounted to a conver-, sion by the Dayton Bank. It recognized the title of G ump’s assignee; refused to permit the Merchants’ Bank to realize on its security, and, in its answer, positively denied all title in the Merchants’ Bank. It thus became liable for the value of the stock at the time of the demand, with interest from that date. McAllister v Kuhns, 96 U. S. 87; Case v. National Bank, 100 U. S. 450 ; Kartright v. Buffalo Bank, 20 Wend. 90; Bond v. Mount Hope Co., 99 Mass. 506 ; Hill v. Pine River Bank, 45 N. H. 300 ; Bank of America v. McNeil, 10 Bush (Ky.) 56; Railroad Co. v. Sewall, 35 Md. 239.

      Gunckel v. Rowe, for plaintiffs in error:
    I. The same rule applies undoubtedly to transfers of stock that applies to banks refusing to pay checks when directed, before presentment or acceptance, not to pay same. An equally good rule should be allowed in respect to the transfer of stock. As to checks, see Dykes v. Leather M'f'g Co. Bank, 11 Paige Ch. 612 ; Schneider v. Irving Bank, 80 How. Pr. 190; Ætna National Bank v. Fourth National Bank, 7 Am. Rep. 314; 2 Parsons on Notes and Bills, 60, 61.
    II. The possession of the certificate by the Merchants’ National Bank, with a mere power of attorney authorizing a transfer to be made, put in it no title to the stock ; a transfer upon the boobs of the Dayton National Bank was necessary to place title in the Merchants’ National Bank; and at the time demand was made for such transfer, the title was vested in the assignee of Gump’s estate. Shaw v. Spencer, 100 Mass. 382; 13 N. Y. 599 ; 4 Allen (Mass.) 277. We claim that there was not actual delivery, and there could not be except by transfer on the books. There must be an actual delivery to support a pledge. “It is of the essence of the contract that there should be an actual delivery of the thing to be pledged.” Story on Bailments, § 297; Harries v. Craun, 2 Pick. 610; Bunsby v. Amel, 8 Pick. 236. Until the delivery of the thing, the whole rests in an executory contract. However strong may be the engagement to deliver it, the pledgee acquires no right of property in the thing. Story on Bailments, §§ 290,297; Portland Bank v. Stubbs, 6 Mass. 422; Necker v. Buffington, 15 Mass. 477; 2 Kent Comm. 4 ed. 571Willard Eq. Jur. 455 ; 1 Parsons on Cont. 594-597. Any creditor of Gump, in attachment or by creditor’s bill (there having been no transfer made on the books), could have subjected the stock, prior to his bankruptcy, to the payment of claims. Dutton v. Conn. Bank, 13 Conn. 493. If Gump, without this transfer having been made, had assigned for the beneht of his creditors, his assignee would have held it; and the same is true when he is forced into bankruptcy. Swift v. Thompson, 9 Conn. 63 ; Shipman v. Ætna Ins. Co., 29 Conn. 245; City Fire Ins. Co. v. Olmsted, 33 Conn. 480. The case of Shipman v. Ætna Ins. Co. is a case, in ail its features, like the one at bar’, and the court there held that the party held no lien whatever upon the stock. Special attention is invited to this case. See also case oi Northrup v. Newton & Bridgeport Turnpike Co., 3 Conn. 544; 6 Conn. 552; 12 Gray, 213.
    As to the power of a national bank to take stock as security. The powers granted in section 5136 0. S. Rev. Stats. 999, are the only powers that a national bank can exercise. The modes pointed out are the only pledge to the stockholders that their funds will not be imperiled in any other mode. Every other power is as much withheld, as if it was in express terms prohibited. Bank of Augusta v. Earle, 13 Pet. 587; Pearce v. Mad. & Ind. R. R., 21 How. 442 ; Perrine v. Ches. & Del. Canal Co., 9 How. 184; Del. & Md. Steam Nav. Co., 8 G. & J. 319. A corporation is a mere creature of the law, and can exercise no powers than those which the law confers upon it. Dartmouth College v. Woodward, 4 Wheat. 636; Bank v. Dandridge, 12 Wheat. 64; Charles River Bridge v. Warren Bridge, 41 Pet. 544 ; Bank v. Earle, 13 Pet. 587; Straus v. Eagle Ins. Co., 5 Ohio St. 59. A corporation derives all its power from the act, and is only what the incorporating act makes it; and is capable of exerting its faculties only,in the manner in which that act authorizes, Heard v. Provident Ins. Co., 2 Cranch, 127. The above section 5631 gives all the powers that a national bank can exercise. All others are excluded "by implication, the same as if specially derived. Such is the rule with respect to all corporations.
      New York Fire Ins. Co. v. Eby, 5 Conn. 572; Child v. Hudson Bay Co., 2 P. Wm. 207; Mathews v. Spinker, 24 Am. Law Reg. 488 ; Heard v. Provident Ins. Co., 2 Cranch, 127 ; Venango Bank v. Taylor, 50 Pa. St. 14. A power to discharge may embrace that of making payment of any kind whatever, but not that of purchasing or acquiring. Clark v. Farrington, 13 Wis. 323; Hood v. New York & New Haven R. R., 22 Conn. 1, 502; Pearce v. Mad. & Ind. R. R. Co., 21 How. 442. We claim, therefore, that the taking of stock as collateral is no more within the authorized business of national banks, than the taking of special deposits to keep merely for the accommodation of the depositor. National banks are not bound for such deposits. Wiley v. First National Bank of Bratileboro, 47 Vt. 546. Although dealing in stocks is not expressly prokihited, yet such prohibition is implied from the failure to grant the power. First National Ba/nk of Charlotte v. National Fx. Bank, 92 U. S. (2 Otto)' 122; Fowler v. Scully, 72 Pa. St. 456.
   Oket, J.

Nothing is better settled, than that shares in the capital stock of a corporation are the subject of pledge. A national bank may hold such shares in the capital stock of another national bank, as collateral security for a loan or loans made or to be made. National Bank v. Case, 99 U. S. 628. Moreover, an objection to such transaction could not be made in this action. Where, as in this case, the pledgor executes an irrevocable power of attorney, authorizing a transfer of such shares on the books of the bank issuing the same, the pledgee has the right to demand that such transfer be made. Here, immediately after the note of February 9, 1874, became due, the pledgee applied to the Dayton National Bank to permit such transfer. On refusal of the request, the right to prosecute this action for the value of the stock accrued to the pledgee. Case v. Bank, 100 U. S. 446; Johnston v. Laflin, 103 U. S. 850; and see McAllister v. Kuhn, 96 U. S. 87. True, at the time of such refusal, an assignee in bankruptcy had been appointed for Crump ; but this did not affect the interest of the pledgee in the shares of stock. Jerome v. McCarter, 94 U. S. 734, 739 ; Yeatman v. Savings Institution, 95 U. S. 764. If, however, as said in the latter case, the assignee desired a sale of them, and a distribution of the proceeds, or if he doubted the validity of the pledge, he. could have instituted an action against the corporation, in some court of competent jurisdiction, . . . . and thereby obtained a judicial determination of the rights of the parties.” And see Schouler on [Bailments, 232.

We find, in the answer of the Dayton National Bank, a request that Pruden, assignee of Gump, be made a party to the action; but the record does not show that he was made a party on motion of that bank, and, what is of more importance, it does not disclose any objection on the part of the pledgee to such new party. We think the answer and cross-petition of Pruden is, in effect, an equitable action to obtain an account and a sale of the stock, and under the circumstances stated, we must regard such answer and cross-petition as having been filed by consent of the parties.

In such posture of the case, the proper decree was, as this is, that the amount for which the^tock is held as collateral security, should be ascertained; that the Dayton National Bank should pay upon such indebtedness the amount of dividends received by it on the stock, with interest, iess the amount of taxes it has paid on such shares; that the stock should be sold at a public sale; and that the proceeds of the sale should be applied in satisfaction of the balance due the pledgee, and costs and expenses, and if a surplus remained, that it should be paid to the assignee. But the decree should not direct, as this does, that if the stock sells for less than its value at the time the request for transfer was refused, and the proceeds of the sale are insufficient to satisfy the sum due the pledgee, and costs and expenses, then the Dayton [N ational Bank shall pay the pledgee the deficiency, not exceeding the difference between the amount realized from such sale and file sum the stock was worth at the time of such refusal. In such equitable action, the pledgee can only look to the stock and dividends for the satisfaction of its claims. The proposition that it may go further in such action, and recover damages, in any amount, as for a conversion, is supported by no just principle.

We are not prepared to say the finding that the stock was deposited by Gump with the Merchants’ National Bank, to secure the payment of all sums for which he was then or might become liable to that bank, is clearly against the weight of evidence—certainly we cannot say such finding is so against the evidence as to call for a reversal of the judgment in that respect. Clearly the pledge was made to secure the repayment of $1,500. Perhaps there is sufiicient support in the evidence for the finding that the stock was not only pledged to secure the repayment of $1,500 to be thereafter advanced, but also as collateral security for the other sums for which Gump was liable, and then due to the bank, notwithstanding any change that might thereafter be made in the form of the indebtedness. But, however that may be, the parties in this case cannot be heard to object that property may not be pledged for future advances, as well as for an existing indebtedness ; and where it is taken in pledge for an existing indebtedness, the renewal of a promissory note given as evidence of such indebtedness, will not affect the creditor’s interest in the pledge, in the absence of an agreement to the contrary, but the pledge will stand as security for such balance of indebtedness in its new form.

Nor can we say there was any error with respect to the question made in argument concerning usury in the pledgee’s claims. The matter is not so presented in the record as to call for any interference with the judgment on that ground. Whether, therefore, if the record disclosed the facts concerning usury to be as claimed in argument, any ground of complaint against the judgment in that respect would be available to the plaintiffs in error, we need not determine. See National Bank v. Matthews, 98 U. S. 621; Pullman v. Upton, 96 U. S. 328.

Judgment modified as above.


author: McIlvaine, J.

text:
    Ingham v. Lindemann.
    1. Under the act of 1859, “ regulating the mode of administering assignments in trust for the benefit of creditors,” mortgaged chattels in pos-, session of the assignor (mortgagor) pass to the assignee and become assets in his hands to be administered, notwithstanding the condition of the mortgage was broken before the assignment. Lindemann v. Ingham, 86 Ohio St. 1, approved.
    2- After the sale of such property by the assignee under an order of the probate court, where an action is brought by the mortgagee against the assignee for the conversion of the property to his own use, reasonable attorney fees in defending the trust should be allowed to the assignee from the proceeds of the sale of such property.
    8 In determining the amount of such allowance, the court is not concluded by the amount actually paid or by the opinion of witnesses as to the value of the services.
    4- No allowance should be made to such assignee for the expense of employing an auctioneer, unless the court directing the sale is of opinion, under the circumstances, that the services of an auctioneer were necessary.
    Petition in error to the Probate Court of Hamilton County, and cross-petition in error by defendants in error.
    On April 2, 1874, Jacobi & Scboeule executed and delivered to Ingbam & Brothers a mortgage upon certain goods and chattels to secure the payment of four promissory notes, for §1,019.89 each, payable with interest at the rate of 8 per cent, per annum, in two, four and eight months respectively, which mortgage was duly filed.
    On April 29, 1874, the mortgagors, who retained possession of the mortgaged property, executed and delivered to George Lindemann a deed of assignment, conveying among other things the mortgaged property, in trust for the benefit of their creditors; which trust was duly accepted and administered by George Lindemann under the direction of the probate. court of Hamilton county, in accordance with the statute in such case made and provided.
    While the mortgaged property was in the hands of the assignee, and before its sale by him, tbe mortgagees notified tbe assignee of tbeir mortgage and demanded1 of bim tbe possession of tbe mortgaged property, wbicb be refused to transfer.
    Afterwards, on June 9, 1874, tbe assigneé sold tbe mortgaged property at public auction for tbe sum of $1,767.94
    On August 19, 1874, Ingbam & Brothers commenced an action in the court of common pleas of Hamilton county against George Lindemann to recover tbe value of tbe mortgaged property, on tbe ground that be bad wrongfully converted the same to bis own use. This action was defended on tbe ground that tbe alleged conversion was tbe due and proper administration of tbe trust aforesaid, in pursuance -of the statute.
    That action was finally determined by this court, in favor of tbe assignee, and is reported in 36 Ohio St. 1.
    Afterward, on January 12, 1881, tbe final report of tbe assignee came on to be beard in tbe probate court, on exceptions filed thereto by Ingbam & Brothers, and it was found by tbe court that tbe assignee was “ entitled to and should receive an allowance of reasonable attorney’s and counsel fees by bim incurred and paid, in and about defending the said action of said Ingbam & Brothers against bim tbe said George Lindemann, in tbe said court of common pleas, and for prosecuting bis petition and suit in error to reverse said judgment of said court of common pleas in tbe district and supreme court,” wbicb amount tbe court found to be $340.00, and ordered tbe balance (less costs on exceptions to report), of said $1,767.94 to be paid to Ingbam & Brothers.
    To tbe allowance of attorneys’ fees, Ingham & Brothers excepted. And Lindemann, assignee, excepted to the refusal of tbe court to allow bim from said fund tbe sum of $209.00, amount paid to auctioneers for selling tbe mortgaged property and for fixing tbe attorney’s fee at $340.00, tbe same being less than tbe amount actually paid by bim.
    A petition in error and a cross-petition alleging tbe respective matters excepted to have been allowed to be filed by tbe parties—tbe plaintiffs in error claiming- that tbe probate court erred in allowing the defendant any sum on account of attorney’s fees, and the defendant claiming that the court erred in not allowing a greater sum, and also in not allowing him fees paid to the auctioneers.

      Yaple, Moos & Pattison, for plaintiffs in error.

      Follett & Dawson, for defendant in error.
   McIlvaine, J.

The arguments of counsel in this case have brought into review the decision in Lindemann v. Ingham (36 Ohio St. 1), in which it was held that, under the act of 1859, “ regulating the mode of administering assignments in trust for the benefit of creditors,” an assignee, who had come into possession of mortgaged chattels after condition broken and had sold the same under an order of the probate court, was not liable, in an action by the mortgagee for converting the property to his own use. That in such case, the right of the mortgagee is transferred to the proceeds, and that the rule of non-liability is the same whether the proceeds of sale were greater or less than the mortgage debt. Without doubting that in the absence of the statute, the mortgagee, after condition broken, would be entitled to the possession of the property as against the mortgagor or his assignee, a majority of the court are still satisfied that by virtue of the statute, the assignee coming into possession of mortgaged property, by virtue of the assignment, has the right to administer the same under the direction of the probate court, whose duty it is, in distributing the proceeds, to adjust priorities of rights.

This construction of the statute being settled, it follows that the assignee should be allowed necessary and reasonable expenses incurred in defending his right to administer the mortgaged property as trust assets. And this principle, applied to the case before us, authorized the court below to allow the assignee a reasonable attorney fee, paid by him in defending the action brought by the mortgagees for the alleged conversion of the mortgaged property by him to his own use; and as between the plaintiffs and other creditors of the assignor, whose representative the assignee is, nothing can be plainer than that this expense should be paid from the proceeds of the mortgaged property.

By the cross-petition in error, the defendant claims that, whereas the amount actually paid by him on account of such attorney’s fees was $500.00, which sum, according to the testimony offered, was the fair value of such services, the court erred in allowing him a credit for $340.00 only.

In making a reasonable allowance for attorney’s fees, the court was not concluded either by the amount actually paid or by the testimony offered as to the value of the services. That testimony, as to the value of such services, should be considered by the court, is clear enough, but it does not follow that the court was bound to adopt the opinion of others as to the reasonable value of such services. If the mind of the court was not satisfied by such aid as was thus furnished, it was its duty to resort to such other information as practice and experience afforded, in connection with such proofs, for the purpose of forming its judgment as to the real value of such services. And its judgment, thus enlightened, and free from all suspicions of bias, should not be disturbed.

Nor was there error in refusing to allow to the defendant the compensation by him paid to auctioneers. A trustee, whose duty it is under the direction of a court to make sale of property, should perform the duties of auctioneer himself, unless in the opinion of the court the services of a professional auctioneer are deemed necessary. The presumption is that every one charged, by law, with the performance of a.duty, is capable of performing the same. And where such officer is allowed compensation for the performance of a duty, he must perform it himself, or employ others at his own expense. The suggestion of a usage or custom to the contrary is of no avail. The record does not show the existence of such usage or custom ; but if it did it could not have the force of law, as it is unreasonable that an estate, in ordinary cases, should be twice charged for the same service. It may be, no doubt, that peculiar circumstances will justify, in some cases, the employment of an auctioneer ; but in such cases, the authority to make the employment should be obtained from the court directing the. sale. Here no such direction was given, and, it is to be inferred, from tbe refusal to allow tbe expense, that in the opinion of the court, the employment in this case was not necessary.

Judgment affirmed.

White, J., dissented,, adhering to his dissenting opinion in the case as reported in 36 Ohio St. 1.


text:
    Hellebush v. Richter.
    1. Where, in an action brought by a creditor for the purpose, a conveyance is adjudged to come within the operation of section 17, of the act regulating assignments in trust for the benefit of creditors, the correctness of the adjudication is not the subject of inquiry, 'in a collateral proceeding. Shorten v. Woodrow (31 Ohio St. 615) distinguished.
    2. In a subsequent proceeding, by the assignee, in the probate court, to administer the trust, the probate court is bound by the distribution ordered by the court in the action in which the. conveyance was adjudged fraudulent.
    Error to the District Court of Hamilton County.
    Gottlieb Richter on behalf of himself and such other creditors of Franz Schoenfeld as might come in and make themselves parties, filed a petition in the superior court of Cincinnati against said Schoenfeld, Dina his wife, and others, under section IT of the act regulating the mode of administering assignments in trust for the benefit of creditors, as amended February 12, 1863 (S. & S. Stats. 39T).
    The object of'the petition was to have a conveyance which. Franz Schoenfeld had caused to be made to his wife with intent to defraud his creditors, declared void, and the property subjected to the payment of his creditors as provided for in said section.
    Notice to creditors of the pendency and object of the petition was published as required by the statute.
    All parties, including the present plaintiff in error, having an interest in the property by way of lien or otherwise were made parties.
    On February 12, 1873, the following decree, or judgment, was rendered in the cause:

      “ This cause came on to be heard on the petition, answers of Franz Schoenfeld, and Dina Schoenfeld, his wife, the amendment to the answer of Franz Schoenfeld, the reply and testimony, the other defendants being in default, and was argued by counsel and submitted to the court. On consideration whereof the court find as to the facts, by request of the defendants, Franz and Dina Schoenfeld:
    1st. That the conveyance made by Charles Hofer to said Dina Schoenfeld, on June 18th, 1869, and recorded in the Eecords of Hamilton Co., Ohio, in Deed Book 367, page 575, of the premises on the corner of Court and Broadway streets, in the city of Cincinnati, Ohio, being the premises firstly described in the petition, was caused and procured to be made by said Franz Schoenfeld.
    2d. That the said conveyance was so made and procured to be made to said Dina Schoenfeld, and by her received without any valuable consideration by her paid, or coming from her, but said Hofer acted' honestly and without any fraudulent intent.
    3d. That said Franz was at the time largely indebted and in embarrassed circumstances, as he well knew, being indebted to plaintiff as well as to divers other persons.
    4th. And that the purpose and intent in causing and procuring said conveyance to be so made, and in receiving the same, was to hinder, delay and defraud the creditors of him the said Franz Schoenfeld.
    “ 5th. And the court further find that since the conveyance was so made certain sums have been expended on said premises for improvements and betterments, thereby increasing the value of said premises, and that the parties who furnished the money for the same are secured by mortgage upon said premises, but the exact amount so furnished or still remaining unpaid, if there be any unpaid, is not known, the said parties being in default, although served with process and their claims being not set up and established.
    “ 6th. The court further find that the Cincinnati German Building Association No. 4 and Charles Hofer have valid mortgages upon said premises, part of which are unpaid, but the exact amount due is unknown, they not having set up their claims to and upon said premises.
    “ And the court now coming to state separately the conclusions of law, doth order, adjudge and decree—
    “ 1st. That the said conveyance be, and the same hereby is declared to be fraudulent and void.
    “2d. That after paying the balance of purchase money due to Charles TIofer, the balance, if any, due to the Cincinnati German Building Association No. 4, defendants, the balance to the defendants James A. S. Clark and Richard Butler, for moneys advanced and used in improvements and betterments upon said premises, if anything still remains due to them on such account, the said premises shall enure to the benefit of the plaintiff, who is still a creditor of the said Franz Schoenfeld for the whole amount of his judgment, less a credit of $95.95, received June 29th, 1872, and the equal benefit of the other creditors who prove their claims 'in accordance with the statute in such case made and provided.
    “ 3d. That as to the other property described in the petition, and as to Catherine Morgenthal, who has no lien of record in the premises, this cause is dismissed.
    • “ 4th. That out of the proceeds of any sale of said premises, the costs of this action shall first be paid, including reasonable counsel fees for the plaintiffs’ attorneys, then the said mortgagees in their order of priority, and after the plaintiff, who has acquired priority by giving notice of the pendency and object of this suit heretofore duly approved, the'general creditors, the latter pro rata, if the fund remaining is not sufficient.”
    After the rendition of this decree, Edward P. Bradstreet was appointed assignee by the probate court, according to the provisions of the statute referred to, and duly qualified as such assignee. He took possession of said property and proceeded to administer tbe same for tbe benefit of creditors.
    Under proceedings in the probate court tbe property was sold under the order of tbe court, sale confirmed, and tbe proceeds of tbe sale distributed. The distribution ordered by tbe probate court was not made in accordance with tbe decree of tbe superior court; but upon what the probate court found to be tbe merits of the respective claims. Provision was made in the order for the payment of the claim of tbe plaintiffs in error, which bad been disallowed by the superior court.
    An appeal was taken to the court of common pleas from tbe order of distribution ; and subsequently the' case was taken on error to tbe district court.
    Tbe district court, in so far as relates to tbe questions now before tbe court, affirmed tbe judgment of tbe court of common pleas ordering tbe distribution to be made in accordance with tbe decree of tbe superior court.
    Tbe reversal of these judgments is now sought.
    Hina Schoenfeldt having died since tbe commencement of tbe proceedings in error, a cross-petition in error is filed by her legal representatives.

      Long, Kramer & Kramer, for plaintiffs in error.
    Wm. Disney, for defendant in error Hina Sehonfield.

      G. B. Okey and J. Li. Challen, for defendant in error Gr. Richter.
   White, J.

There are only two questions in this case on which-tbe court deem it necessary to report its decision.

Whether tbe effect of the decree of the superior court, in Richter v. Schoenfeld was to bring tbe case within section seventeen of tbe act regulating tbe mode of administering assignments in trust for the benefit of creditors, as amended Eeb. 11, 1863 (S. & S. 397).

And if so, whether tbe order of tbe distribution of the proceeds of tbe sale of tbe property as determined by tbe superior court was conclusive upon tbe assignee and tbe probate court, in administering tbe trust.

Both, questions, in our opinion, must be answered in tbe affirmative.

As to tbe first. Tbe finding and judgment of tbe superior court are not under review in tbis proceeding. That court bad jurisdiction of tbe subject matter and of tbe parties, and tbe correctness of tbe finding and judgment cannot here be questioned. While tbe judgment remains unrcversed it operates, between tbe parties, as a conclusive adjudication of all questions botb of law and fact determined by tbe court.

Tbe action-was brought by Richter under tbe seventeenth section of the act referred to, and tbe proceedings were conducted in accordance with its provisions.

By tbe judgment or decree of tbe superior court, the conveyance was adjudged to be of tbe character provided for in tbe section; and tbe proceeds of tbe sale were ordered to be distributed as required by it. Whether tbis adjudication was ©rroneous or not can make no difference. In either case it has tbe same effect in a collateral proceeding to carry it into execution.

In support of the errors assigned, reliance is placed on tbe decision in Shorton v. Woodrow (34 Ohio S. 645), where a similar judgment was reversed. But in that case tbe judgment was under review by a direct proceeding in error, and the court finding the judgment erroneous, reversed it. But in the present case, as already remarked, tbe judgment of tbe superior court is not under review on error. It comes in question collaterally; and tbe question is not whether it is erroneous, but what, is its effect as it stands.

As to tbe second question. Tbe probate court was not authorized to inquire into tbe merits of tbe order of tbe superior eourt, marshaling tbe liens upon tbe property or distributing tbe proceeds of tbe sale. The duty of tbe probate court was to see that tbe assignee administered tbe trust in accordance with tbe judgment of tbe superior court, and not to supervise tbe action of that court.

In regard to tbe claim of the plaintiffs in error that tbe appeal from tbe order of distribution of tbe probate court was not duly perfected, it is sufficient to say that tbe question now raised was decided adversely to the claim of the plaintiffs, in Johnson v. Johnson, 31 Ohio St. 131.

But if it were, otherwise it would not change the result. For, by the proceeding in error the whole .record, including that of the probate court, is before the court, and it would be the duty of the court to reverse the orders of the probate court in so far as they conflicted with the judgment of the superior court.

Judgment affirmed.

Boynton, C. J., dissented as to the first question decided.

Okey, J., took no part in the decision of this case.


author: Johnson, J.

text:
    The State ex rel. William M. Shinnich, Jr. v. John A. Green.
    The council of the city of Z., a city of the second class, consisted of eighteen members, duly qualified, who with the mayor were legally assembled to organize, as required by section 1676 of the Bevised Statutes. The mayor was acting as president and the election was proceeded with. A motion was made to elect S. clerk, objection was made to this mode of electing, which was overruled by the mayor, against which ruling nine members protested. On the adoption of the motion by a ro!J call, the nine protesting members refused to vote, so that the vote stood nine yeas and no nays. No other candidate was in nomination or voted for. One of the nine, not voting, objected, because no quorum voted, but the objection was overruled and S. was declared elected, to which the nine- not voting protested. Held :

    1. That it was competent to elect by a motion, there being no other person than the one named in the motion in nomination.
    2. All the members being present and engaged in holding the election, members by refusing to vote when their names are called cannot defeat the election, or divest the body of the power to elect.
    8. In such case the legal effect of refusing to vote is an acquiescence in the choice of those who do vote, and this is so, although those refusing to vote object to the mode of voting, and on the ground that no quorum voted.
    Quo Warranto. Reserved in the District Court of Muskingum County.

      The object of this proceeding is to obtain the judgment of the court as to whether the relator is the duly elected clerk of the city of Zanesville.
    The defendant denies the relator’s title to the office, and sets up his own title to the same.
    Zanesville is a city of the second class, consisting of nine wards and eighteen councilmen.
    At the first regular meeting after the April election, to wit, April 25, 1881, the nine members holding over and the nine members elect, met in the council chamber. The latter were duly sworn by the mayor, who then called the body to order and stated that the first thing in order was the organization of the new council. Such proceedings were had that the mayor declared,, against the protest of nine members, that A. P. Stults was elected president.
    Afterwards, at an adjourned meeting, John A. Fortune was declared elected president pro tem by like proceedings and against a like protest. The mayor then stated the next thing in order was the election of a clerk. It was moved that the relator be elected. Objection was made, - that the motion was illegal, as no president or president p7'o tem had been elected, and also, on the ground that it was not legal to elect by motion. The chair overruled the objection and ordered the roll called on the motion.
    No other person was nominated, and no motion was made to amend by inserting the name of any other candidate. Nine members voted a/ye and none voted against. The nine not voting were present but refused to vote, because of the attempt to elect by motion.
    The attention of the chair was called to the fact, that a quorum had not voted, and therefore, it was claimed the motion was lost. The non-voting members being present, their names were again called, but they declined to vote. The mayor then decided that the relator was duly elected ; the nine not voting entered a protest against these proceedings, but did not offer to vote for any other person. It appears from the special findings, that during these proceedings all the members were present, nine of whom were protesting against the mode of electing by motion and declining to vote for or against such motion. Also that the nine members not voting, objected to the validity of the election on the ground that no quorum voted, and that less than a majority voted for the relator. The same proceedings, with like objections, were had as to the election of president and president pro tempore, but as the present litigation relates only to the election of a clerk it is unnecessary to state them in detail.
    Some objection was made on the hearing as to the sufficiency of the bond given by the relator. As the bond is regarded as sufficient, and no point for report was saved by the court, a statement of this objection'is not made.

      Moses M. Granger, and John O'Neil, for the plaintiff.

      A. W. Train and G. L. Phillips, for defendant.
   Johnson, J.

The new council, to be organized, consisted pf nine members holding over, and nine members elect. They assembled at the proper time and place. For the purpose of organization, the mayor was ex offieio president, authorized to swear in the new members, call the assembly to order, and preside during the organization.

The nine new members were duly sworn; the councilmen, all of whom were present, were called to order by the mayor, who announced that the first business in order was the organization of the new council. The Revised Statutes, sections 1675 and 1676 relate to this subject. No business can be transacted until such organization. As all the members were present no question as to a quorum for the purpose of organization arises. The statute made it the imperative duty of the eighteen members then present and qualified to act, to “ forthwith proceed to organize by electing a president and president pjro tempore, from their own number, a clerk, and such other officers as by ordinance may be provided.” By section 1676, it is further provided, that in cities of the second class, the mayor shall be ex ojfieio president during such organization, and in case of a tie vote in the choice of an officer at such organization, the mayor shall give the casting vote.

Two questions made during the proceedings of the council, and in this court are:

1st. "Was it legal to elect by a motion?

2nd. Was the relator legally elected?

The statute contemplates an election, and that each member of the electing body shall have a vote in the choice of any officer, and in case of a tie vote, that the mayor shall give the casting vote.

The statute provides that in the adoption of ordinances, resolutions and by-laws the vote shall be taken by yeas and nays, and be recorded on the journal; and no contract, agreement, or obligation shall be entered into, except by ordinance or resolution, nor any appropriation of money, except by ordinance. Rev. Stats. § 1693.

In these specified cases, and perhaps others, the mode of voting is by yeas and nays, but the statute, is silent as to the mode of voting in the organization of a council.

“ A vote is but the expression of the will of a voter; and whether the formula to give -expression to such will, be a ballot or viva voce, the result is the same; either is a vote.” People v. Pease, 27 N. Y. 45.

In the case at bar, the vote was by yeas and nays, on the adoption of a motion to elect the relator clerk. It is essential to a valid election that all who are present, and are constituent members of the elective body, shall have an opportunity to vote. They all in this respect stand upon equal footing. As there was but one candidate in nomination, the vote on the motion was a vote for or against that candidate. If a majority voted for the motion it was a clear expression that the person named in the motion was the choice of a majority of those entitled to vote. As no mode of voting at such an election is prescribed by law, any mode not forbidden by law which insures to each member the right to vote, and by which the will of the majority can be fairly ascertained, may be adopted.

The mode adopted was the one prescribed by statute for the transaction of the most important business of the council. We see no reason why it is not a fair mode of ascertaining the choice of the council. Certainly this method, by placing the yeas and nays upon record, tended to a higher degree of accountability than by a ballot, though that mode of voting might have been adopted. If any member had a candidate to propose, he could have moved to amend by inserting his name, and on this amendment the vote of each member could have been had.

No question is made but that the relator was qualified to be elected, and for aught that appears, the objections were not against him personally, but to the mode of taking the vote. If a majority of the,eighteen had voted against the motion, that would have been a clear expression of the will of the council against the relator. It is equally clear that if a majority voted for the motion he would be elected. "We hold, therefore, that under the circumstances of this case, the mode of electing by motion was authorized by law.

2. "Was the relator legally elected?

All the members were present and duly qualified to act. All entered upon the duty of electing the officers necessary to an organization. They proceeded to discharge this duty, but differed as to the' mode of voting. The mayor decided, correctly as we have seen, that it was proper to elect by motion.

Nine members, being one less than a quorum, and less than a majority of those present, voted for the motion, and nine refused to vote, protesting against that mode of electing. The relator was eligible to the office, the mayor declared him duly elected, and the nine who did not vote protested against this decision. It does not appear, except inferentially, that those not voting and protesting had any objection to the relator, or that they expressed any preference for another, but only as to the mode of his election and the number of votes by which he was elected, there being less than a quorum voting. Until an organization was effected the powers of members were limited to the duty of electing the proper officers. After organization and in the transaction of business, the council, or the majority of those composing it, may determine when to act as well as how to act. Here the law determines when ihe council shall act. The only discretion the members have is as to the mode of electing, and the persons to he elected. The council is charged with an important public trust. It is essential to the exercise of that trust that a speedy organization should be had. They, (the members present if a quorum,) shall forthwith proceed to organize,” is the unmistakable language of the statute.

Where, as in this case, the question involved is difficult of solution, any system of parliamentary tactics, or any conduct of members, however well meant, calculated to defeat such an organization, or any construction of the statute leading to such result, will not be favored unless clearly required by the terms of the law.

The body was duly constituted to hold an election of clerk; only one candidate was before it for the votes of members; no question entitled to precedence was before the body; the election was being held, and those declining to vote must .be deemed to acquiesce in the choice of those who do, though protesting against the mode of voting, the decision of the Mayor that there was a quorum and that the relator was elected. This is the settled rule of the common law, as to elections in coiqrorate bodies. Willcock on Corporations, section 546, says: “ After an election has been properly proposed, whoever has a majority of those who vote, tlie assembly being sufficient, is elected, although a majority of the entire assembly altogether abstain from voting / because their presence suffices to constitute the elective body, and if they neglect to vote, it is their own fault, and shall not invalidate the act of the others, but be construed an assent to the determination of the majority of those who do vote. And such an election is valid, though the majority of those whose presence is necessary to the assembly protest against any election at that time, or even the election of the individual who has the majority of votes. The only manner in which they can effectually prevent his election is by voting lor some other qualified person.”

The same rule is stated with equal force and clearness in the text of Grant on Corporations, 71*; Angelí & Ames on Corporations, §§ 126, 127; 2 Kyd on Corporations, 12, 13.

These citations are high authority and should suffice. We have, however, carefully examined the authorities cited in support of the text as well as numerous other cases. They constitute an unbroken chain, and leave no room for doubt as to what the rule is as settled by the highest authority both in England and in this country. Some of these cases we will notice. Oldknow v. Wainwright, or Rex v. Foxcraft, 2 Burr 1017, was a feigned action to try the right of election to the office of town clerk of Nottingham; that is, whether one Thomas Seagrave was duly elected clerk. The whole number of electors was twenty five, all of whom were summoned to an election. Twenty-one assembled at the time and place. Thomas Seagrave was nominated. No other person was put in nomination. Nine of the twenty-one voted for him, but twelve of them did not vote at all, and eleven of them protested against any election at that time,'because, • as they claimed, the office was already filled, and one “ suspended his vote.”

“ Lord Mansfield saw no doubt in the case,” so the report says. “ Here was an assembly duly summoned, one candidate was named, no other was named, they had no right to stop in the middle of the election.”

Upon a re-argument, Lord Mansfield confirmed his former opinion. “ He said the protesting electors had no way to stop the election when once entered upon, but by voting for some other person than Seagrave, or at least against him; whereas here they had only protested against any election at that time.” , •

Mr. Justice "Wilmot cited a case where, out of eleven voters, five voted and six refused, and the court had held, “ that the six virtually consented.” He also cited several other cases to the same point.

Lord ,Mansfield added: “ whenever electors are present and don’t vote at all (as they have done here,) they virtually acquiesce in the election made by those who do.”

It would be difficult to find a case more like the one at bar.

This case was cited with approval by Denman, C. J., in Gosling v. Veley, 53 E. C. L. (7 A. & E.) 439 ; and again, when the latter case was before the House of Lords, 4 H. of L. Cases, 679.

In all the learned opinions in that justly celebrated ease, the doctrine announced by Lord Mansfield was approved, when limited to cases of elections; but it was held that where the question was the levy of a tax, or the transaction of other corporate business, a majority of those present must vote for it. In his opinion in that ease, Baron Martin said (p. 739): “ But I think the proceedings for the election of members of a representative body or of corporate officers, are substantially different from the proceedings of the body itself in the transaction of business.”

As to this distinction between bxosvness of a corporation and an election, Lord Mansfield is cited, as saying in King v. Monday, that there was no way of defeating a candidate being voted for at a legal election, but by voting for some one else; and he adds : “ But in the business of a corporation it is a different thing.” The same question was again before the court, in King v. Bellringer, 4 Term, 810. In that case Lord Kenyon says, in speaking of an election by a definite body: “ It is not necessary that they should all concur in the election or others act done; but they must be present, and the election at such a meeting is in point of law an election by the whole.”

This principle is adopted in Inhabitants of the First Parish v. Stearns, 21 Pick. 148. The court there say, in speaking of corporate elections and of the cases decided as to the effect of not voting: “ The principle which runs through them all, and is founded in common sense as well as supported by authority is that a majority of the legal, voters who chose-to vote always constitutes an election. It has been holden that where a majority expressly dissent, but do not vote, the election by the minority is good.” See also Booker v. Young, 12 Gratt. 307, where the case of Oldknow v. Wainwright is cited with approval.

So far as we have been able to learn, the doctrine laid down by Lord Mansfield and repeated in all the text-books has never been questioned.

In holding, as we do, that the relator was duly elected, we do not contravene the well-settled rule, that in all deliberative bodies, tbe majority must govern. We simply hold, that the law cast upon each member of council—the duty of voting for some one—that by being present and keeping silent when eallecL on to vote, they are presumed to acquiesce in the vote given. This acquiescence creates the presumption that the choice of their voting is the choice of a majority of all present and not voting.

It is claimed by counsel for defendant that it is the well-established rule of parliamentary practice that the mayor could not go beyond the roll-call, which shows only nine present, to determine that there was a quorum. This rule is claimed to be that “ When the roll-call discloses the absence of a quorum, the chair cannot go o-utside of the record in deciding as to the presence of a quorum.” Const. Man. & Digest, 2d Session, 46th Congress, 338. The same Digest, page 103, lays down the rule, as quoted from 2 Hastsell, 125, 126 (a very high authority on this subject), as follows:

“ And whenever, during business, it is observed that a quorum is not present, any member may call for the house to be counted, and being found deficient, business is suspended.”

Whether the rule relied on is a rule adopted by the house of representatives or is a decisioji upon parliamentary law made by the speaker, we are not advised, nor is it necessary to inquire, as no such rule is made part of the law governing municipal corporations. We may add that we do not go outside of the record of the council to learn that all the members were actually present.

We are not called on to discuss parliamentary rules which are adopted by deliberative bodies for the convenient and orderly dispatch of business. They form no part of the statute laws of the state.

In the absence of any statute making such a rule part of the law of the land, we must look to the reason and object of the statute as construed in the light of the well-settled principles of the common law.

Judgment for the relatw.

Boynton, C. J., was absent.


author: Okey, J.

text:
    Cullen v. Bimm.
    1. If a vendee refuse to accept personal property tendered in accordance with the terms of the contract of sale, he is liable in damages for the difference between the contract price and its market value; and the fact that the vendor, against the objection of the vendee, made an invalid sale of the property to himself, and thereafter treated it as his own, does not change the rule, nor defeat the action, where the same Is brought to recover damages for non-acceptance of the property by the vendee.
    2. In an action for refusing to accept a lot of ice containing several hundred thousand cubic feet, which by the terms of the contract of sale was to be merchantable, the court charged the jury that the plaintiff could not recover unless it appeared that the ice as a lot was of merchantable quality, “fit for the ordinary uses to which ice is put,” and such as would ‘ ‘ fairly pass in market—Held, that m refusing to charge that all, that is, every part of the ice, should be merchantable, the court did not err.
    3. In such action, the defense being that the ice was not merchantable, a letter of the seller was offered in evidence to show a request to the purchaser to examine the ice. The letter contained a statement that the ice was not merchantable, which statement was corrected in a subsequent letter of the seller, also properly in evidence:—Held, that the reception of evidence offered by the seller to show on what information the first letter was written, afforded no ground for a reversal of (he judgment.
    Error to the Superior Court of Cincinnati.
    August 8, 1873, Ezra Bimm and Christian Herchelrode brought suit in the superior court of Cincinnati against James Cullen and Charles B. Russell, partners as James Cullen & Co. The cause was tried to a jury on the issues made by the petition, answer and reply, and a verdict was rendered at the March term, 1877, in favor of Bimm and Herchelrode, for $7,112. A motion for a new trial was over-ruled and judgment was rendered on the verdict. A bill of exceptions was taken, embodying a portion of the evidence, certain requests for instruction to the jury, and the charge as given, with exceptions to the refusal to charge as requested, to the charge given, and to the reception of certain evidence. The judgment was affirmed in general term of the superior court, and on leave Cullen & Co. have filed this petition in error in this court.
    The action was prosecuted on a contract in writing between the parties, dated July 14, 1871. By the contract it was agreed that Bimm and Herchelrode should, during the winter 1871- 2, fill their two ice-houses, at Dayton, with ice taken from their artificial lake, and have the same in readiness for Cullen & Co. by March 1, 1872, at which time the ice was to be measured, and Cullen & Co were then to receive the keys of the houses and pay for the ice at the rate of $1.25 for every fifty cubic feet. The same contract applied, on the same terms, to the ice taken from the lake in the winter of 1872- 3, possession of the houses to be given and payment to be made on March 1, 1873.
    In the petition it is alleged that the ice of 1871-2 was received and paid for by Cullen & Co. on March 1, 1872, and that this action is prosecuted for their refusal to receive the ice of 1872-3. Performance of the stipulations of the agreement, on the part of Bimm and Ilerchelrode, and a re-sale of the ice at public auction, after notice to Cullen & Co., are alleged and it is stated that on measurement of the ice in the houses, on March 1, 1873, iii pursuance of the contract, the number of cubic feet was found to be 395,988. The ice having at such re-sale brought a much less sum than the contract price, judgment is asked for the difference, and the petition also contains allegations sufficient to warrant a recovery of damages for a refusal to accept or pay for the ice.
    Cullen & Co. admit that, on March 1, 1873, they refused to receive the ice then in the houses, but they aver, as a reason for such refusal, that it was inferior, and not such as they contracted to receive. As a part of their answer they also filed a counter-claim, in which they seek to recover damages for defect in quality and deficiéncy in quantity with respect to the ice received March 1, 1872; but by consent of parties this counter-claim was docketed as a separate case.

      Mc Guffey, Morrill & Strunk and George Hoadly, for plaintiffs in error.

      Young & Gottschall and Stallo & Kittredge, for defendants in error.
   Okey, J.

The record does not purport to contain all the testimony. We must assume, therefore, that the verdict was supported by sufficient evidence, and simply inquire whether there was error in matter of law.

Whether Bimm and Herchelrode could have held the ice for Cullen & Co. and recovered the contract price, is a question which we need not determine. Hadly v. Pugh, Wright, 554; Dayton, &c. T. Co. v. Coy, 13 Ohio St. 84, 90; Shawhan v. Van Nest, 25 Ohio St. 490; Benjamin on Sales (2 Am. ed.), § 788, bear upon it. Assuming that there was a breach of the contract on the part of Cullen & Co., Bimm and Herchelrode had at least two remedies, either of which they might pursue. They could treat the property as their own, and if its market value, at the time of the breach, was less than the- contract price, they might by action recover the difference and a sum equal to the interest; or, after notice to Cullen & Go., they could sell the ice, on the theory that the property in,- but not the possession of the ice had passed to them, and if the amount thus realized was less than the contract price, they could by action recover such deficiency and a sum equal to the interest thereon. In the petition a recovery is sought upon the ground that there had been such re-sale and was such deficiency; but it appears the real transaction was a re-sale by Bimm and Herchelrode to themselves at thirty cents per ton. Whether a purchase by an agent or trustee at his own sale is, in the absence of statutory provision, void or only voidable [as to which see Eastern Bank v. Taylor, 41 Ala., 93; Bassett v. Brown, 105 Mass. 551; Wadsworth v. Gay, 118 Mass. 44; Marsh v. Whitmore, 21 Wall. 178; 1 Williams Ex. (6 Am ed.) 719, 720, note], is a question which we need not determine, for Cullen & Cc., upon being informed of such i’e-sale, objected to it, and thereby effectually avoided it. The pleadings, however, are clearly sufficient to warrant a recovery according to the facts, which are, that Bimm and Herchelrode treated and disposed of the ice as their own, and that the market price was less than the contract price on Mai'ch 1, 1873. The fact, x’elied on by Cullen & Co., that, subsequently to March 1, the mai’ket pxice of the ice advanced beyond the contx’act price, is of no importance. Bimm and Hex’chelx’ode wex’e entitled to the benefit of such advance. Bridgeford v. Crocker, 60 N. Y. 627; Hayden v. Demets, 53 N. Y. 426; Quick v. Wheeler, 78 N. Y. 300. Nor can Cullen & Co. maintain the further positions they assume, that by making such re-sale Bimxn and Herchelrode converted the property of Cullen & Co. to their own use, or became their trustees. Objection to such re-sale having been made by Cullen & Co., it became and was wholly invalid; and hence Bimm and Herchelrode wex’e not, and in reason could not be, in any worse position than they would have occupied, if no attempt had been made to re-sell the ice.

The contract requix’ed that the ice shoxxld be merchantable. Bxxt the court refused to chai’ge, as requested by Cullen & Co., that uxxless the plaintiffs have pi’oved by a fair preponderance of testimony, that all the ice coxxtained in the ice houses of the plaintiffs, at Dayton, and tendered to the defendants, and by thexn refused, was on March 1, 1873, merchantable ice, they cannot l’ecover.” To this refusal, Cullen & Co. excepted. Evidence was offered tending to show that the two top tiers of ice in both houses contained impurities, and were only fit for cooling purposes; but evidence was also offered to show that those tiers ax’e never intended for consxxmption, and that they usually melt befox’e any ice is renxoved from the houses. It also appeared that some other parts of the ice were not wholly free from impurities.

In view of the evidence and the charge given, we think the court properly refused the chai'ge requested. The jury must have found that the top layer and the layer next to it, in each house, was not intended for consumption, and that they melted before Cullen & Co. woxxld have had occasioxx to x’emove any ice from the houses. And the existence of impurities in some other portions of the ice did not necessarily render the lots sold, unmerchantable. In determining whether property like this is merchantable, some regard must be had to quantity. The rule upon the subject may be illustrated by a familiar example. Thus if A sells to B six sound apples, the tender of six apples, one of which is to any extent unsound, may not be a compliance with the contract; but where the sale is of a barrel of sound apples, the tender of a barrel of apples might be a compliance with the contract, although one apjfie in the barrel was to some extent unsound. Large lots of ice entirely free from impurities perhaps cannot be' found. The court said to the jury, the contract, as to the character of the ice, was complied with on the part of Bimm and Herchelrode, if thé ice as a lot was of a merchantable quality, “ fit for the ordinary uses to which ice is put,” and such as would “ fairly pass in market, not alone at Dayton, but everywhere.” This was a proper construction of the contract. Hamilton v. Ganyard, 34 Barb. 204; s. c., 3 Keyes, 45. Indeed, the expression in the contract that the ice must be merchantable, is only what the law would have required in the absence of such express provision. Benjamin on Sales (2 Am. ed.), § 656 ; Leake on Contracts, 407. As the evidence is not set forth, we must assume that the ice was merchantable, within the rule stated by the court.

The remaining objection is the alleged error of the court in permitting John W. Herchelrode, son of one of the plaintiffs below, to testify what information he gave to his father, the father having testified that he wrote a certain letter—offered in evidence—on information given to him by his son. In order to determine as to the force of the objection, it will be necessary to set forth certain matters appealing in the record.

On December 4, 1872, the plaintiff Herchelrode wrote to Cullen & Co., at Cincinnati, which was their place of business : My son reports the ice six inches thick ... I am told it is not very clean—could not be called merchantable ... I think it will pay you to come up by first train to-morrow, and see the ice and its condition. Mr. Bimm is of the same opinion . . . We may secure the ice on our own account, should you not agree to have it put up in its present.condition.”

On the next day, Cullen & Co. answered: Our contract calls for ice not less than six and one half inches, good mercharitable ice. Of course we will want that kind of ice if we can get it.”

On December 16, 1872, Bimm and Iierchelrode wrote to Cullen & Co.: “ We have been cutting ice on Friday and Saturday, and find it to be very nice and clear. We were quite disappointed to find it so clear. It is about nine inches thick... I f you think best to come up and see the quality while we are at work, it may satisfy you much better than our writing___ Wo wTonld like to have your opinion.”

On the trial these letters, among others, were offered in evidence by Bimm and Ilerchelrode. Ilerchelrode then testified that he had no knowledge of the condition of the ice at the time he wrote the letter of December 4, 1872, but obtained the information on which the letter was based from his son, John W. Ilerchelrode, who testified that he knew nothing about the writing of the letter of December 4, except that his father said to him he had written such a letter. No objection was made to the introduction of this evidence, written or verbal. Probably it was not subject to any objection. Watson v. Moore, Car. & K. 626; Roe v. Day, 7 Car. & P. 705 ; Bryant v. Lord, 19 Minn. 396. Bimm and Ilerchelrode then asked John W. Ilerchelrode this question: “ What was the information you gave your father, upon which this letter was written ?” To that question Cullen & Co. objected, but the court overruled the objection, and they excepted. He answered: “ I stated that about fifteen or twenty feet from shore there was dock seed collected; that I supposed the ice was not in good condition. I told him it was six or six and a half inches thick at that time . . . Didn’t suggest to my father to write to Cincinnati.”

It is doubtful whether the reception of this evidence would afford ground of reversal, even if it was not strictly admissible, for it is difficult to see how Cullen & Co. were injured by it. The testimony related, not to the quality of the ice, but to the information which the son had communicated to his father. Herchelrode did write to Cullen & Go. on December 4, 1872, that the ice was not merchantable. How he got his information was unknown to them. They would have been warranted in regarding tlie statement as true ; but twelve days thereafter, Herchelrode informed them that he was mistaken; that the ice was merchantable. In both letters he requested them to come and see for themselves. The material matter for them was, not the information on which the letters were written, but the truth of the statements contained in the letters. But the letters were properly offered in evidence for the purpose of showing that Cullen & Co. had been requested to make an examination of the ice before and during the time that it was taken from the lake; and as the earlier letter contained a statement which Bimm and Herchelrode claimed was inserted therein by mistake, the testimony of the plaintiff Herchelrode was offered to show that in writing the letter he acted solely on in formation x’eceived from his son, and the son was called to show the information really given to his father. This tended to show the mistake, as well as the good faith of Bimm and Herchelrode ; and while the testimony was of no great importance, in view of the questions before the jury, we are not satisfied that its reception affords any ground for reversing the judgment.

Judgment affirmed.