author: By the Court:

text:
    Ward, as Sheriff v. Russell, as Probate Judge.

      Compensation allowed sheriff — Transporting insane person to and from state hospital — Section 719, Revised Statutes.

    The compensation to be allowed to a sheriff for transporting an insane person to and from a state hospital for the insane is regulated by section 719, Revised Statutes. This section as amended April 8,1892, and now in force, does not authorize the payment of mileage to the sheriff on account of an assistant who may accompany and assist him in the performance of that duty, although the probate judge of the proper county directed that an assistant should accompany and assist the sheriff in transporting the insane person.
    (Decided November 16, 1897.)
    Error to the Circuit Court of Lawrence county.
    The plaintiff in error, William G. Ward, was sheriff of Lawrence county, Ohio; the defendant in error, James C. Russell, was probate judge of the same county. On the 28fch day of February, 1896, the latter, as such probate judge, issued to the former, as such sheriff, a warrant, commanding such sheriff to convey one Michael McCauley to the hospital for the insane, at Athens, Ohio, and also directing him, as such sheriff, to take with him one guard, or assistant. The said sheriff, thereupon, took such assistant, and with his aid transported by the nearest route of travel from Ironton, the county seat of Lawrence county, to said hospital for the insane, the insane person named, and there delivered him to the proper officer of such hospital. On his return to Lawrence county, the plaintiff in error, as such sheriff, demanded that said defendant in erroi, issue to him a certificate entitling him to mileage for such assistant, which said probate judge refused to do.

      Thereupon the plaintiff in error brought an action of mandamus to compel said probate judge to issue to him a certificate or voucher, that should include mileage for such assistant.
    The court of common pleas, held, that the sheriff was entitled to mileage for such assistant, and gave judgment accordingly. The circuit court-reversed this judgment. Thereupon the plaintiff in error brought the cause to this court to obtain a reversal of the judgment of the circuit court, and to reinstate that of the court of common pleas.

      A. R. Johnson and E. E. Corn, for plaintiff in error.

      R. B. Miller, Prosecuting Attorney, for defendant in error.
   By the Court:

The right of'a sheriff to mileage for transporting an insane person to one of the state hospitals for the insane, is purely statutory; he is entitled to receive for such service whatever the statute allows, and nothing more.

The statute upon this subject, prior to April 8, 1892, reads as follows:

“The taxable costs and expenses to De paid ' under the provisions of this chapter shall be as follows: To the sheriff or other person than an assistant, for taking an insane person to the asylum, or removing one therefrom upon the warrant of the probate judge, mileage at the rate of ten cents per mile, going and returning, and seventy-five cents per day for the support of each patient on his journey to or from the asylum, and to each assistant, five cents per mile, and nothing more; the number of miles to be computed in all cases by the nearest route traveled.”

The statute, it is clear, allowed five cents per mile to . each assistant that might accompany a sheriff in transporting an insane person to and from an asylum for the insane.

This statute, however, was amended on the 8th day of April, 1892, and as amended, contains the following provisions on this subject:

“The taxable costs and expenses to be paid under the provisions of this chapter, shall be as follows: To the sheriff for himself or assistant, or any other person than the assistant, for taking an insane person to the asylum, or removing one therefrom, upon a warrant of the probate judge, mileage at the rate of ten cents per mile, going and returning, and seventy-five cents per day for the support of each patient on his journey to or from the asylum, and nothing more for said services; the number of miles to be computed in all cases by the nearest route traveled.”

The claim to mileage for an assistant, rests solely upon the provisions of this amended section. It does not authorize any payment of mileage to the assistant in person; whatever is paid, goes immediately to the sheriff. The language is “the taxable costs” * * * “to be paid,” * * * “shall be as follows:” “To the sheriff for himself, or assistant, * * * mileage at the rate of ten cents per mile.” -It does not employ the word “each,” nor one of similar import to indicate a purpose to grant mileage on behalf of each. The grant is simply of ten cents per mile, and made to the sheriff “for himself, or assistant, or anjr other person than the assistant.” To enlarge this grant so as to confer a right on the sheriff to mileage on account of the assistant — that is, so as to give the sheriff twenty cents per mile— instead of ten cents per mile, words must be construed into the section other than those selected by the legislature to declare its purpose. If this expression of the legislative will stood alone, we do not think it discloses an intention to allow a sheriff for this service a greater compensation than the specific allowance, and ten cents per mile “going and returning.” This provision of the statute, however, should be construed in the light afforded by a comparison of its provisions with those of the statute it repealed and superseded. When thus compared, it will appear that the former statute expressly allowed to the assistant, five cents per mile, and that the only material change effected by the repeal of the old and the enactment of the new section, is to eliminate the provision allowing to the assistant that rate of mileage.

If the purpose of the legislature had been to increase this allowance from five cents to ten cents per mile, the obvious and simple method to accomplish this end would have been to substitute the word “ten” for the word “five.”

This, however, was not done; instead, the entire clause allowing mileage to an assistant was omitted from the new section, and nothing equivalent to it substituted. This action, we think, very significant, and is sufficient to create in our minds a conviction that mileage to, or on account of an assistant, was purposely denied.

To speculate upon the possible reasons that contributed to this result, doubtless, would be without profit. Nevertheless, it is quite apparent that the legislature may have thought a. general allowance of ten cents per mile to a sheriff, in such cases, was sufficient to fully compensate that officer for all services rendered in that behalf, although, occasionally he might be subjected to the expense of taking along an assistant.

Judgment affirmed.


source: Caselaw Access Project

author: Williams, J. Minshall and Spear, JJ.,

license: Public Domain

text:
    Sternberger and Willard v. Ragland.

      Record of mortgage— When not constructive notice of unrecorded deed — Effect of such deed as against subsequent purchaser— Section 4134, Revised Statutes — Purchaser at judicial sale— When within protection of statute — Rule where judgment creditor is purchaser.

    1. A purchaser of real property from one who appears of record to have the title is not required to examine for 'mortgages made to the latter after he became the owner; nor, is the record of such a mortgage constructive notice to the purchaser, of a prior unrecorded deed made by his grantor to the mortgagor.
    2. Under the provisions of section 4134, of the Revised Statutes, until a deed is filed for record it is ineffectual to convey the property as against a subsequent bona fide purchaser who, at the time of his purchase, had no knowledge of the existence of such deed.
    3. Where a judgment debtor appears of record to be the owner of real property, it is subject to the liens of judgments recovered against him and to judicial sale thereunder; and a bona fide xDurchaser at such sale, without notice of an unrecorded deed made by the judgment debtor before the rendition of the judgment, is within the protection of the statute, and acquires the title as against the grantee in the deed; and in this respect the rights of the judgment creditor, when he becomes the purchaser, are not different from those of other purchasers at judicial sales.
    (Decided November 23, 1897.)
    Error to the Circuit Court of Jackson county.
    On the 22d day of January, 1889, the defendant in error, William Ragland, purchased a town lot in Jackson, from the Woocl-Coffman Manufacturing Company, then the owner thereof, and obtained a deed for the same in fee simple. He paid a part of the purchase price, at the time of the conveyance to him, and gave a mortgage on the lot to secure the payment of the balance. This mortgage, which contains a recital that it was given to secure the unpaid purchasemoney, was recorded in April, 1889. The deed was never filed for record. After the conveyance was made and the mortgage recorded, judgments were recovered in the court of common pleas of Jackson county, against Ragland’s grantor, which were purchased in good faith by the defendant in error, Morris L. Sternberger, who paid full value therefor; and executions issued thereon were levied on the lot in question, which then appeared of record to belong to the judgment debtor, and it was thereafter sold under the writs to satisfy the judgments. Sternberger became the purchaser at the sale, which was confirmed by the court, and the sheriff in pursuance of the order of the court executed a deed to Sternberger for the lot, in due form of law, which he caused to be placed upon record. The proceeds of the sale, after payment of the costs and. taxes, were applied under the order of the court toward the satisfaction of the judgments. Sternberger then sold, and conveyed by quitclaim deed, the undivided one-half of the lot to his co-plaintiff in error, Henry S. Willard, who paid full value therefor, and promptlv placed his deed on record. Thereafter, Ragland brought suit to quiet his title to the lot against Sternberger and Willard, who set up their respective claims to its ownership. The case went on appeal to tíre circuit court where a finding was made of the facts, which, in addition to those already stated, are as follows: “The lot described in the petition was not improved, or fenced, and not occupied except occasionally for the storage of small quantities of lumber by the plaintiff, and some fence posts have remained and still remain on said lot; otherwise, said lot was vacant, and, at the time of the purchase by said Sternberger, at sheriff’s sale, the character and nature of the plaintiff’s possession was not of such nature as to place said Sternberger upon inquiry or notice, nor was it of such a character as to place said Willard upon inquiry or notice when he purchased. The Wood-Coffman Manufacturing Company was, upon the deed records of said county, the apparent owner when the sheriff’s sale was made. The defendant, Morris L. Sternberger, when he purchased said lot at sheriff’s sale, paid value therefor in the purchase of said judgments, and he had no notice, actual or constructive, of plaintiff’s claim thereto, unless the mortgage of plaintiff to said company was constructive notice, which we hold not to be constructive notice to him; and the defendant, W illard, when he purchased from said Sternberger, paid value therefor, and he had no notice, actual or constructive, of plaintiff’s claim, unless such mortgage was constructive notice, which we hold was not constructive notice to him; and neither of the defendants had notice of plaintiff’s deed to said lot or claim thereto.”
    Upon this state of facts the court held, as its conclusions of law, as appears from the record that: “The Wood-Coffman Manufacturing Company having conveyed said lot by deed to plaintiff, although said plaintiff .never had said deed recorded, had no; further interest in said lot which could be sold at judicial sale, although it was the apparent owner of said lot upon the records, and the defendant, Sternberger, though purchasing said lot for value and without notice, could not obtain title thereto bjr purchasing at said judicial sale.”
    Thereupon judgment was rendered against Sternberger and Willard, which they seek to have reversed here.

      T. A. Jones, for plaintiffs in error.
    Our registry statutes protect purchasers at judicial sales as well as those at private sales. Ragland’s deed, never having been recorded, is fraudulent as against Sternberger and his grantee, both of whom purchased for value and without notice.
    The conclusion of law of the circuit court is in direct and positive conflict with our statute law and the decisions of our Supreme Court. Revised Statutes, section 4134 ; Morris v. Daniels, 35 Ohio St., 406; Scribner’s Lessee v. Lockwood, 9 Ohio, 184.
    The principal contention of defendant in error’s attorney was that Sternberger was not entitled to be protected as a bona ficle purchaser, because he was an assignee of a judgment creditor, and therefore not a purchaser for value.
    The circuit court, however, refused to entertain that view, but on the contrary found that Sternberger paid full value.
    In Ohio, in the following cases, the -judgment creditor purchasing, were protected: Lessee of Paine v. Mooreland, 15 Ohio, p. 435; Fosdick v. Barr, 3 Ohio St., 471; Butterfield v. Walsh, 21 Iowa, 99; Evans v. McGlasson, 18 Iowa, 150; Foorman v. Wallace, 75 Cal., 552; Rorer on Judicial Sales, section 708; Barto v. Bank, 15 Hun., 11.

      But Sternberger occupies a more favorable position than an ordinary execution creditor. 1. He was the assignee of the creditor, Dungan, and paid full value; he was a lienee owning’ other judgments. 2. He paid out over $500.00 in cash. There was an essential change in his condition.
    The court properly found that he paid value.
    Ragland’s deed, for want of record, is condemned as fraudulent, and Sternberger was entitled to the protection given bona fide purchasers, otherwise he would lose what has been paid by the fault of Ragland. McBride & Murphy v. Longworth, 14 Ohio St., 349.
    However Sternberger may be considered, his grantee, Willard, also being a purchaser for value without notice, under his deed, is also entitled to the protection of the statute. Brown v. Banner Coal Co., 97 Ill., 214; Martindale’s Law of Conveyancing, section 59; Fox v. Hall, 74 Mo., 315; Cutler v. James, 64 Wis., 173; 1 Devlin on Deeds, section 673.

      S. F. White and John Harper, for defendant in error.
    Plaintiffs in error seek to maintain this suit on the ground that they are purchasers in good faith, without notice, and for full value of the lot in question, and entitled to protection under section 4134, Revised Statutes of Ohio.
    Such a claim has no support in the record of-this cause.
    I. The claim of a bona fide purchaser is of no avail to any one except- the holder of the legal title. Woods et al. v. Dill et al., 11 Ohio, 455; Larrowe v. Beam, 10 Ohio, 498; Anketel v. Converse, 17 Ohio St., 11; Elstner v. Fife, 32 Ohio St., 358.

      The deed of the sheriff is essential to invest the purchaser with the legal title. Without confirmation the sheriff has no authority to execute a deed, and any attempt to do so is wholly invalid. Curtis v. Norton, 1 Ohio, 278; Bassett et al. v. Daniels et al., 10 Ohio St., 620.
    The sheriff’s deed was executed to Sternberger on July 3, 1891, while the sale was confirmed on July 8, 1891.
    The record therefore shows conclusively that the deed of the sheriff, upon which plaintiffs in error base their claim of title, was executed five days before the sale was confirmed.
    For that reason the plaintiffs in error are precluded from claiming the protection of the statute.
    II. To constitute one a bona fide buyer within the meaning of the statute above referred to he must pay full value at the time of his purchase. He must either pay money or its equivalent. 2d Warvelle on Vendor, 610.
    An execution creditor, purchasing at his own sale, pay's no value at the time of his purchase. He parts with his money or its equivalent, at the time the debt or obligation upon which the judgment rests was incurred. Freeman on Execution, vol. 2, section 344. Lewis v. Anderson, 20 Ohio St., 281; Eaton et al. v. Davidson et al., 46 Ohio St., 355.
    When Sternberger purchased the judgment on which this sale was made, he stepped into the judgment creditor’s shoes, and it was then that he parted with his money.
    In the sale of property he was in fact the execution creditor, and in the - purchase of the lots he parted with nothing that would constitute him. a purchaser for value in the sense contemplated by the statute.
    These judgments were in no sense liens on the lot in question for the legal title thereto was in Ragland, a stranger to said judgments. Neither did the levy create a lien thereon, because the lot was not in fact subject to such seizure.
    Ragland could have intervened by motion or injunction and successfully resisted the confirmation after all costs had accrued on the execution sale. In such case neither Ragland nor his lot would have been liable for the cost of the sale or the judgments upon which it was made, but the costs would attach to the property actually belonging to the judgment debtor.
    A large number of lots actually owned by the judgment debtor were sold. It was on these that the costs were incurred. So far as the record discloses, it was upon these that the large amount of taxes paid, were due, and so far as anything appears by the record, Sternberger bid and paid no more than he would, had this lot not been included in the levy.
    III. The first conclusion of law seems to be supported by some courts of the other states, but there appears to be no decision of the precise question by the Supreme Court in this state.
    Section 1153, Revised Statutes, requires alphabetical indexes to be kept by the county recorder, showing- the grantor and grantee to each conveyance.
    We think the conclusion of the reporter in the head lines of Leiby v. Wolf et al., 10 Ohio, 83, are correctly drawn from opinion of the court .and set forth the true rule, viz.: “The registry of a deed, the grantor and grantee in which are both out of the chain of title as recorded, is no notice to a subsequent purchaser. ” In our view of the above case there is no distinction between a deed and a mortgage.
    By its acceptance and record of the mortgage from Ragland, The Wood-Coffman Manufacturing Company was estopped from denying title in him, independently of its deed to him, or the record thereof, had it been recorded. Kelley et al. v. Stanberry et al., 13 Ohio, 408.
    The estoppel adhered to the lot itself. It runs with the land into whose hands it may come. Douglas v. Scott, 5 Ohio, 195.
    The plaintiff in error, Willard, obtained by his deed from Sternberger only such title as Sternberger had.
    A purchaser under a quitclaim deed may be protected, yet the character of the deed is a notification to him to search for himself.
    Willard was bound to search the record and take notice of Sternberger’s title. 2d Warvelle on Vendors, 615; 5 O. C. C., 385.
   Williams, J.

The question in the case . is whether Sternberger, under the judicial sale, became a bona fide purchaser within the rule which protects such purchasers against unrecorded conveyances. It must be reg-arded as established by the facts found in the court below, that there was not such possession of the lot by Rag-land as put Sternberger. upon inquiry, or charged him with notice of any claim or equity of the former, either, when the judgments were recovered, or the executions levied, or when the sale was made and confirmed, or the. deed from the sheriff was received by Sternberger; and also, that Sternberger was without any actual knowledge of Ragland’s unrecorded deed, or of any claim by him to any interest in the lot.

The record of the mortgage executed by Ragland for the unpaid purchase money for the lot, was not constructive notice of his unregistered deed, to a subsequent purchaser from his grantor.

When a prospective purchaser finds a complete record title in the proposed seller, he is not bound to examine for mortgages made to the latter after he became the owner; such a mortgage is not in the chain of his title, and is not, therefore, constructive notice to a subsequent purchaser, of a prior unrecorded deed made by him to the mortgagor. The circuit court so held. But, notwithstanding its finding that Sternberger was a purchaser at the judicial sale for value and without notice, actual or constructive, of any adverse claim of Ragland to the premises he so bought, the judgment of the court was adverse to him. The judgment appears to rest upon the ground that the deed to Ragland, though unrecorded, divested his grantor of all interest in the lot, and thereafter nothing remained in the judgment debtor, although appearing’ of record to be the owner of the lot, upon which the judgments became liens, or that could be sold at judicial sale thereunder.

It is undoubtedly the general rule, except in so far as it is modified and controlled by statute, that a judgment creditor obtains a lien only on such interest in lands as his debtor had when the judgment was rendered, and, it is subject to such equities as could then be successfully asserted against the debtor. But our statute (section 4134, Revised Statutes), requires that all deeds and instruments for the conveyance of lands, or interests therein, “shall be recorded in the office of the recorder of the county in which the premises are situated,” and provides that, “until so recorded or filed for record, the same shall be deemed fraudulent, so far as relates to a subsequent bona fide purchaser, having, at the time of purchase,-no knowledge of the existence of such former deed or instrument.” This statute renders any prior unrecorded deed wholly ineffectual to convey the title out of the. grantor, as against a subsequent bona fide purchaser from him., and leaves him with as full and ample power to convey a good title to such subsequent purchaser as if the prior conveyance had not been made. And, it is settled by the adjudications of this court, that purchasers at judicial sales, without notice of a prior unrecorded deed from the judgment debtor, are within the protection of the statute equally with purchasers at private sale. Scribner’s Lessee v. Lockwood, 9 Ohio, 184; Morris v. Daniels, 35 Ohio St., 406.

The title acquired by Sternberger at the judicial sale was, therefore, superior to that" of Ragland, unless the former is to be denied the position of a bona fide purchaser because he was the owner of the judgments under which the sale was made.

It is claimed that as he was the owner of the judgments at the time of his purchase, and their satisfaction pro tanto was the only consideration he paid, he does not come within the rule in favor of banco fide purchasers. This position is sought to be sustained by Lewis v. Anderson, 20 Ohio St., 281. But that case simply holds, that: “Where there is no consideration for a mortgage of real estate other than a pre-existing debt of the mortgagor, and the mortgagee is not induced thereby to change his condition in any manner, he cannot he regarded as a bona fide purchaser for value.”

That decision is placed upon the ground, as stated in the opinion, that, “the rule which favors a bona fide purchaser of land, and that which protects the holder of negotiable paper for value before due from infirmities affecting the instrument before it was transferred, are based substantially on the same equitable grounds, and upon the policy of the law which favors trade and the security of titles, as conducive to the public good.” And in that case, Roxborough v. Messick, 6 Ohio St., 448, is cited, where the rules applicable in determining what considerations are sufficient to protect the holders of commercial paper are fully considered, which, as there laid down, have since been regarded as the settled law on that subject. It is there held, that while a voluntary transfer of a negotiable instrument to secure a pre-existingdebt, where the parties are left in respect to such debt in statu quo, there being- no new consideration, stipulation for delay, or credit given, or right parted with, is not sufficient to protect the holder against equities existing between the prior parties at the time of the transfer, yet, when the note is transferred in payment of the precedent debt, the consideration is sufficient to entitle the holder to such p rotection. ‘ ‘ The weight of authority, ’ ’ says Swan, J., in that case, “ seems to settle the principle, that where a negotiable instrument of a third person is transferred before due, in payment of a pre-existing debt, and is bona fide received by the creditor, without notice, the defenses existing as between the prior parties cannot be set up against such holder.” And that learned judge further says, in that ease, that there is “no substantial difference between the consideration for the transfer of negotiable paper in payment of a precedent debt, or in payment of goods sold at the time of such transfer.” Applying these principles to a purchaser of real property, it was held in Clements v. Doerner, 40 Ohio St., 632, that a purchaser who takes a conveyance of real estate in payment of a pre-existing debt is a bona ficle purchaser for value, and entitled to be protected as against a prior defective mortgage made by his grantor. When the conveyance is received in payment of the debt, there is a change in the situation of the parties; the debt is for the time being, at least, discharged; and, though the creditor may be restored, upon failure of his title to the property, to his right to enforce the collection of the debt, so recovery may be had for any other consideration parted with for the property, where the title for any cause fails.

If it be said Sternberg’er could have the satisfaction of his judgments vacated and new process issued for the collection of the judgments out of any property of the judgment debtor, so, any stranger who might have become the purchaser at the sale, would be entitled to the same remedy. Revised Statutes, sections 5410, 5412. The necessity of resorting to such a remedy is sufficient, of itself, to show that a substantial change occurred in the situation of the parties by the satisfaction of the judgments on the confirmation of the sale; and the neglect of Ragland to have his deed placed on .record, does not entitle him to drive the purchaser, in either case, to that remedy. Had Sternberger made his purchase at private sale, instead of at a judicial sale, there could be no doubt, we think, of the superiority of his right to the property over that of Ragland; and his right in that respect is none the less, because the conveyance was made through the instrumentality of the sheriff and the forms of judicial proceedings, instead of immediately from the judgment debtor. The deed of the sheriff conveyed a title as good and complete as the judgment debtor could have conveyed.

In the note to Basset v. Nosworthy, 2 Leading-Cases in Equity, 110, 111, the conclusion reached after a full discussion of the subject, and review of the cases, is that the weight of authority in this country is “in favor of the proposition that a purchaser at a judicial sale, stands on the same footing with a purchaser directly from the debtor; and, that a purchaser at such sale will take the land discharged of any claim or title, whether arising under an unregistered deed, or a mere equity, of which he had no notice at the time of the purchase, and which would be invalid as against an ordinary purchaser;” and furthermore, that the rule is the same “when the judgment creditor becomes the purchaser, because the money which he pays goes in satisfaction of the debt; and every additional bid is necessarily an advantage to the ' defendant in the judgment. ’ ’ The following, among others, may be added to the cases there cited in support of the rule as stated: Foorman v. Wallace, 75 Cal., 552; Evans v. McGlassen, 18 Iowa, 150; Butterfield v. Walsh, 21 Id., 97; Rorer on Judicial Sales, sections 866, 874.

Judgment reversed and judgment for the plaintiffs in error.

Minshall and Spear, JJ.,

dissent from the last clause of the third paragraph of the syllabus, and from the judgment of reversal.


text:
    Baltimore & Ohio Railroad Company v. West.

      When lease for term of years at annual rent creates tenancy from year to year — Obligation of tenant holding over, for the rent for that year — Statute of frauds does not apply.

    1. An entry under a lease for a term of years at an annual rent, void for any cause, and payment of rent under it, creates a tenancy from year to year upon the terms of the lease, except as to its duration.
    2. Where, after the expiration of the term, the tenant holds over and pays rent for a part of another year, without any new agreement with the landlord, he becomes a tenant for that year at the same rent, and cannot terminate the tenancy before the end of the year without the landlord’s consent.
    3. The obligation of the tenant to pay the rent for the year, in such case, is not within the statute of frauds; the holding over being equivalent to a new entry.
    (Decided November 23, 1897.)
    Error to the Circuit Court of Erie county.
    On the 1st day of April, 1887, the parties in this ease entered into a written agreement, by which the defendant in error let to the plaintiff in error, certain premises in the city of Sandusky, “for the full term of five years next ensuing, and fully to be completed and ended on the 29th day of March, 1892;” the plaintiff in error agreeing to pay rent for the premises, “during the said term of five years, at the rate of three hundred and eighty-six dollars per year, payable monthly.”
    The written instrument was not acknowledged by either of the parties, nor was it recorded; but the plaintiff in error entered into possession of the premises under it, and continued in their occupancy, paying the rent according to the stipulations of the agreement, until the expiration of the term of five years. After the expiration of that term, without any new agreement or arrangement with the defendant in error, the plaintiff in' error held over, continuing in the possession of the premises, and paying rent therefor at the rate, and in the manner provided in the written instrument, until the 1st day of September, 1892, at which time it abandoned the premises without the consent of the defendant in error, and , refused to pay rent thereafter. The defendant in error, claiming that he was entitled to the rent for the whole of the year ending March 29, 1893, notwithstanding the abandonment of the premises, brought his suit therefor, after the expiration of the year; and, upon the foregoing state of facts, recovered a judgment for the amount of the rent from September 1, 1892, to March 29, 1893, at the rate fixed by the written agreement, with interest. That judgment was affirmed by the circuit court, and the plaintiff in error seeks a reversal in this court.

      J. H. Collins, for plaintiff in error.
    If the railroad company had abandoned this room at any time during the five years from the 1st of April, 1887 to the 1st of April, 1892, and suit had been brought on this written contract, no recovery could have been had. Richardson v. Bates, 8 Ohio St. Rep., 257.
    Again, the supplemental lease which it is claimed was entered into between the parties is absolutely void and no suit can be maintained thereon under the Ohio statute of frauds. Sections 4198 and 4199, Revised Statutes.
    It will not be contended that this supplemental or parol lease was valid under this statute, but it may be claimed that part performance took the ease out of the terms of the statute.
    In reply to this, it will be noted in the first place, that there is no pleading of any such contract as this. It is not averred that the contract was parol and that it was taken out of the statute by virtue of some part performance; but the pleading is simply a contract for the subsequent lease upon a rental which is designated. But even if we had a proper pleading here there is no case made for recovery under the Ohio statute of frauds and the decisions of the Supreme Court thereon. Armstrong v. Kattenhorn, 11 Ohio, 265; Crawford & Murray v. Wick, 18 Ohio St., 190; Myers v. Croswell, 45 Ohio St., 443.
    During all the time that the company held this room, from the 1st day of April, 1887, until the 1st day of September, 1892, it was simply a tenant at will. Am. &Eng. Eney. of Law, vol. 12, pages 670-673, together with the foot notes cited thereunder.
    It will be noted also that a tenancy at will, from its very nature and from its definition, may be terminated at the will of either party.

      Charles L. Hubbard, for defendant in error.
    The law of this case the defendant in error deems to be as follows:
    That a lease for one year can be based on a contract either expressed or implied, and in either case assumpsit lies for use and occupation. Rickey v. Hinde, 6 Ohio, 371; 3 Ohio, 294; Butler v. Baker, 5 Ohio St., 584; 1 Nash Pleading, 357-8.
    That when tenant abandons before end of term, landlord can recover for use and occupation to end of term. Fitch v. Sargeant, 1 Ohio, 352; 3 Ohio, 264; 1 Ohio St., 222; 5 Ohio St., 584; 7 Ohio St., 157.

      Periodical tenancies exist in Ohio. 3 West. Law Monthly, 148; 1 Handy, 458; 4 West. Law Monthly, 252.
    A defective or unrecorded lease with possession under it is good as a lease for a year, i. e. the contract for a year at least is implied by taking possession with understanding that the premises are so leased for years. Wright Rep., 646; 13 Ohio, 43. Dennis v. Hansen & Weddell, Wood Co. Circuit Court (1896), in Ohio Legal News, vol. 4, No. 3, 469, or vol. 1, Ohio Decisions, 469.
    This case discusses Wilber v. Paine, 1 Ohio, 251; Grant v. Ramsey, 7 Ohio St., 158; Richardson v. Bates, 8 Ohio St., 257.
    Leaving a key with landlord does not amount to a surrender of a lease if the landlord does not accept it as such. Wash., Real Property, vol. 1, 529; 48 Me., 573; 11 Cush., 366.
    There is no tenancy at will, as counsel for plaintiff in error claims, when rent is paid. Bouv., Law Diet., vol. 2, 581, and cases there cited. And no tenancy by the day is here claimed or proved.
    Mere holding over we admit is not enough to make the tenant liable for another year.
    But if tenant merely asks for reduction after holding over and is told no reduction will be given and that the tenant will be held by the year, and no definite statement is made by the tenant that the tenant declines to be considered a tenant by the year, and if the tenant goes on in occupancy and pays the old rent each month for a number of months, according to the terms of the former lease, he thereby makes a-contract with the landlord for another year on the same terms on which he had been using’ the premises. Mitchel & Bowland v. Pendleton, 21 Ohio St., 664; Harmony Lodge v.
      White et al., 30 Ohio St., 569; Elevator Company v. Brown, 36 Ohio St., 660; Moore v. Beardsley, 3 Ohio, 294; 10 Law Bulletin, 215.
   By the Court:

It is the claim of the plaintiff in error, that the written agreement was invalid as a lease for the stipulated term of five years, because of the failure to have it acknowledged and recorded; and, that by entering into the possession of the premises and the payment of rent, the plaintiff in error became merely a tenant at will, or, at most, a tenant from month to month, which also continued to be the character of the tenancy when the plaintiff in error held over beyond the term; so that, upon quitting the possession at the end of the month of August, 1892, its liability ceased.

The well settled rule appears to be, however, that where the lessee enters into possession of the demised premises under a lease for a term of years at an annual rent, if the lease for any cause be void he becomes a tenant for a year at the rent reserved in the lease, and subject to all of its provisions, except its duration; and when his possession is continued into the next year, a tenancy from year to year is created, and continues so long as he enters upon a new year, until the end of the term; and this is so, though the rent be payable quarterly, or monthly, or at shorter periods. And when, after the expiration of the term., he holds over into another year without any new agreement or arrangement with the landlord, the latter may treat him as a tenant for that year at the same rent and upon the terms and conditions of his prior occupancy, or, as a trespasser at his election; but if the landlord accept the rent, or acquiesce in such, holding over-for a considerable time, his election will be regarded as made in favor of the tenancy, and then it cannot be terminated before the end of the year by either party without the consent of the other.

In Wood on Landlord and Tenant, section 13, it is laid down as the established rule, that: “When a tenant under a demise for a term holds over after the termination of the time for which the premises were let to him, without a new demise, the landlord may elect to treat him as a trespasser, or as a tenant holding' under the terms of the original lease, unless it appears that by agreement or notice, the terms of the original agreement or lease were changed.” And, “when a tenant holds over, whether he is a tenant for a term of years, or from year to year, he impliedly holds according to all the conditions of the original lease which are applicable to his new situation, and the law will imply - those terms which are found in the contract which has expired.” In Taylor on Landlord and Tenant, section 22, the rule is stated as follows: “A tenant for years who holds over after the expiration of his term without paying rent, or otherwise acknowledging a continuance of the tenancy, becomes either a trespasser or a-tenant* at the option of the landlord. Very slight acts on the part of the landlord, as a short lapse of time, are sufficient to conclude his election and make the occupant his tenant. But the tenant has no such election; his mere continuance in possession fixes him as a tenant for another year, if the landlord thinks proper to insist upon it. And the right of the landlord will not be affected by'the fact that the tenant refused to renew the lease, and gave notice that he had hired other premises.” And, that author further says, in section 525, that: “When the landlord suffers the tenant to remain in possession after the expiration of the original tenancy, the law presumes the holding to be upon the terms of the original demise, subject to the same rent, and to all the covenants of the original lease, so far, at least, as they are applicable to the new condition of things.” In Wood on .Frauds, section 22, it is said, that: “An entry under a lease for a term at an-annual rent, void for any cause, and payment of rent under it, creates a tenancy from year to year, upon the terms of the lease except as to its duration.” To the same effect is Wood on Frauds, section 19, and Wood on Landlord and Tenant, section 25. The law as above stated, is maintained also by other authors and text-writers wiio treat of the subject. 2 Woodfall on Landlord and Tenant, 219, 220, 222; Reed on Statute of Frauds, section 807; 12 Am. & Eng. Encyclopedia of Law, pp. 738£>, 738$', and 738r. The decisions are largely collected in the text-books referred to, and need not be cited here.

In this case, though the written agreement was ineffectual as a lease for the term of five years ’ on account of the omission of the parties to acknowledge its execution and have it recorded, the plaintiff in error, by taking possession and paying the rent under the agreement, became a tenant from year to year at the annual rent fixed by it, and payable according to its terms; and, by holding, over after the expiration of the term into the next year and paying the rent at the same rate for a part of that year, the plaintiff in error became a tenant for that year upon the terms of the former occupancy, and was not relieved from its obligation to pay the rent for the balance of the year by the abandonment of the premises. Nor, is the obligation to pay the rent for the balance of that year within the statute of frauds. The tenant, by holding over, is regarded as consenting or proposing to enter upon a new term for another year at the same rent and upon the conditions of the prior occupancy, and the landlord’s acceptance of the proposed tenancy is presumed from his receiving the rent, or other acquiescence. The agreement arises by implication of law from the conduct of the parties after the expiration of the former tenancy; and, in this respect, is essentially different from those agreements made by parties while in possession under an existing lease, for a new lease to commence in the future; as was the case of Armstrong v. Kattenhorn, 11 Ohio, 265, and Crawford & Murray v. Wick, 18 Ohio St., 190.

Here the new agreement grows out of, and is founded upon, the possession evidenced by the holding over, and is therefore referable to it, rather than to the possession under the prior agreement which had expired. The holding over is equivalent to a new entry; or, as said in Reed on the Statute of Frauds, section 806, concerning the application of the statute in such eases, the “effect of entry under a void lease, and of holding over after the expiration of a valid one, is identical.” And it is the settled law of this state, that a parol lease for a year, accompanied by possession, is not within the statute of frauds. Wilber v. Paine, 1 Ohio, 252; Moore v. Beasley, 3 Ohio, 294.

Judgment affirmed.


author: Spear, J.

text:
    The Huber Mfg. Co. v. Clara W. Sweny and Frank Brandon, Assignee.

      furisdiction of common pleas court over its own orders — Nunc pro tunc order — Assignment for creditors — Sale of chattel property by assignee — Respective rights oj conflicting mortgagees— Section 4155, Revised Statutes.

    1. The control of a court of common pleas over its own orders and judgments during the term at which they are rendered, and the power to vacate or modify the same at discretion, is not affected by the incidents that a motion for a new trial has been heard and overruled, and that a bill of exceptions has been taken. And where an order vacating and ■ setting-aside such order overruling the motion, has in fact been made at the term at which it was entered, but by inadvertance no entry of the same has been made upon the journal, such omission may be supplied by an order nunc pro tunc at the succeeding term.
    2. Where, in the administration of an assignment for the benefit of creditors, the assignee, having sold chattel property which is subject to certain conflicting mortgage liens, held respectively by S. and H., and having filed a proper application for the purpose of bringing the mortgagees into court, in order that their conflicting liens and claims to the fund may be adjudicated, and the same are set up by proper pleadings, and it appears that either claim, with the costs, will exhaust the entire fund, leaving nothing for general creditors, and the question for the court is found to be only one of priority and of distribution, the controversy becomes one between the mortgagees alone, and is to be determined solely by a consideration of the respective claims of the mortgagees as between themselves.
    3. In such case, the settled rule that a person taking a subsequent mortgage of chattels with actual notice of an unsatisfied prior mortgage on the same property is not a mortgagee in good faith within the meaning of section 4155, Revised Statutes, applies. And where it appears that S. has a mortgage which was not refiled within the yefir after its first filing, and another given later upon the same property to secure the same debt, duly filed before the assignment, and that the mortgage of H. was taken and duly filed before the second mortgage of S., and after the expiration of the year from the filing of the first mortgage of S., but with actual notice of that mortgage, the lien of S., by virtue of the first mortgage, will be held superior to the lien of H., although such mortgage, by reason of the failure to refllo it in conformity to the statute, would be invalid as against general creditors.
    (Decided November 23, 1897.)
    Error to the Circuit Court of Warren county.
    This cause had its origin in the probate court. The defendant in error, Frank Brandon, as assignee for the benefit of. creditors of James W. Sweny, filed in that court a written application asking for an order fixing the priority of liens, and of distribution of the proceeds of sales made by him of chattel property assigned, being an engine and separator. Plaintiff in error set up in its answer a chattel mortgage on the property executed by the assignor to it July 29, 1892, for $450, which mortgage was duly filed September 13, 1892, and refiled August 16, 1893, and claimed first lien on the fund. Clara W. Sweny set up two chattel mortgages on the property executed to her by the assignor. One was dated March 18, 1892, for $500, and was duly filed March 23, 1892. This mortgage she failed to refile within the year, and on May 17, 1893, the mortgagor executed and delivered to her a new mortgage to secure the same debt, which was duly filed July 1, 1893. She claimed a first lien on the fund. Either mortgage, with the costs, was enough to exhaust the proceeds of the sale. On January 3, 1894, James W. Sweny executed the assignment by virtue of which the sales were made, and the- assignee then took possession of the property.
    The action being tried in the common pleas court on appeal, at the October term, 1894, a judgment for the Huber Company resulted, adjudging that its claim was the first lien,' and ordering distribution, which was entered on the journal. Motion for a new trial by Clara, W. Sweny followed within three days, which was submitted and overruled, and an entry made of that action, and a bill of exceptions was taken by her. The cause was further heard at that term, but no entry was made on the journal. At the January term following an entry nunc pro tunc, setting aside the former entry of judgment and of order overruling motion for new trial was made, to-wit:
    “Whereas, at the October term of this court, 1.894, and after the making and entering of record of the orders and decrees in this cause, bearing date of Saturday, October 20, -1894, and recorded in volume 36, pages 425 and 426, of the journal of this court, Clara W. Sweny and Frank Brandon, assignee, etc., made in open court an application to set aside and vacate said orders and decrees, and a hearing was had upon said application, but by inadvertence no order was made and entered upon the journals and.records of this court at that time in reference to said application; although on said application the court granted a rehearing of said cause, and the same was fully argued by counsel and submitted to the court.
    “And it appearing to the court that an order should have been made and entered upon the journal of this court at the October term, 1894, vacating, setting- aside and holding for naught said former orders.
    “Now, therefore, it is ordered, adjudged and decreed, that said orders of this court, bearing date Saturday, October 20, 1894, and recorded in volume 36, pages 425 and 426 ' of the journal of this court, be and the same are hereby set aside, vacated and held for naught, and that this judgment, order and decree shall stand and be considered as the judgment of this court duly made and given as of the October term of this court in the year 1894.
    “To all of which judgment, order and decree of the court, setting aside and vacating- its former order as well as the making and entering the order at this timé, The Huber Manufacturing Company, by its attorney, excepts.”
    Then followed a finding and judgment that Clara W. Sweny had the first lien on the engine sold, the Huber Company a second lien, and ordering distribution accordingly, to which the company excepted. It appeared • in the evidence and was not denied, that at the time the mortgage was taken by the Huber Company it had actual notice of the prior mortgage to Clara W. Sweny. On error, the circuit court affirmed this judgment. A reversal of both judgments is asked.

      W. F. Eltzroth and W. Chester Maple, for plaintiff in error.

      George A. Burr, for defendant in error.
   Spear, J.

Two questions are presented. A decision of either in favor of plaintiff in error would result in a reversal of the judgment. 1. Did the court of common pleas, at the January term, 1895, have power to vacate the- judgment entered at the October term preceding, and if so, did the order made have the effect to vacate that judgment? 2. Did the first mortgage of Clara W. Sweny, by reason of a failure to refile it before the expiration of the year, lose its priority as between it and the mortgage of the Huber Company?

1. It is argued that there was no power in the court to make such an order of vacation because the court had no power to vacate the judgment, or further consider the motion for new trial, even at the October term"' “without there having been alleged in writing some of the causes for which a judgment may be vacated and set aside, viz.: fraud and collusion, judgment taken contrary to agreement, perjury, want of notice, unauthorized appearance of attorney, irregularities, that judgment was against person under disability, or unauthorized entries;” and this not having been done, but the last hearing at the October term having been upon the oral application of Mrs. Sweny, and ' not upon any of the grounds stated above, the order was wholly ineffectual to accomplish the result intended, and that it was not possible for the court to do at the January term what it could not have done at the October term. Hence the judgment and order of January term are erroneous whether the entry then made is or not sufficient in form. We think the position is not tenable. The application was not a motion for a new trial; that motion had already been passed upon. It was an application for a re-hearing of the motion for new trial. That is, the court was asked to vacate the order overruling that motion, and to rehear the case, which was not required to be in-writing, nor to be made within three days after the entry of the orders asked to be set aside. That the court had power to do this is, we think, without question. It is stated in the opinion in Huntington v. Finch, 3 Ohio St., 445, that: “The court of common pleas has ample control over its own orders and judgments during the term at which they are rendered, and the power to vacate or modify them in its discretion.” This doctrine is recognized in Bank v. Doty, 9 Ohio St., 505; Niles v. Parks, 49 Ohio St., 370, and in other cases, and its soundness, as a general proposition, we regard as beyond question. Whether or not there might be exceptions to it we need not inquire, for it is enough to say that the facts of this case do not disclose any ground for such exception.

But it. is further insisted that whether the first point be well taken or not, the so called nunc pro tunc order of the January term is ineffectual to accomplish the purpose sought, because it is an attempt to make such an order as should have been made at the October term, but was not, and not an attempt to require to be entered on the journal an order actually made, but which failed to get upon the journal by inadvertence, and that this is shown by the terms of the journal entry. We agree that the language of the entry is not as clear as it might have been made; indeed it is involved and susceptible of misconstruction. But we think, taking the entry as a whole, it shows that there was an application by counsel for Mrs. Sweny, at the October term, after the entry of judgment against her and the overruling of her motion for new trial, to set aside the order overruling the motion, for a vacation of the entry of judgment, and a rehearing’ of the cause itself, and that this application was entertained; and it is fairly apparent that the prayer for an order setting aside the entry overruling the motion was then granted, and the cause fully argued by counsel and submitted. That would leave the motion in abeyance, and the effect of the subsequent order, whether made at that or the next term was to sustain the motion and grant a new trial, or at least a rehearing, for it was a question of law, and not of fact, which was involved. By-inadvertence, no entry of the order so made was entered on the journal. If the order were in fact made — and the court finds that it was — it then became the duty of the clerk to make a proper entry of it .on the journal. If he failed in this duty, the least reprehensible reason to be assigned for such failure is inadvertence, as, in practice, it is found to be the most common cause for such iailures. The remedy for such inadvertence is an order nuno pro tunc, for the proper office of a nuno pro tuno order is to correct the record so as to cause it to show an act of the court which, though actually done at a former term, was not entered on the journal. Such, we think, is the character of the order of January term, when reasonably construed. Upon the determination of the motion it was proper for the court to dis-r pose of all questions before it, and render judgment, and this the entry, shows the court did,' although, as before stated, the language selected to give effect to the court’s action in the entire matter was not happily chosen.

2. In support of the plaintiff’s claim as to the second question it is argued that the first mortgage of Clara W. Sweny, not having been refiled as directed by statute (section 4155), became absolutely void as against the creditors of James W. Sweny, the assignor, and being so as against the creditors, is likewise void as against the assignee, who stands in the place of the general creditors. And as this is not a contest between mortgagees, but a hearing upon an application made by the assignee asking the court to hear and determine the validity of liens, and the priority thereof upon the fund in his hands, and for an order instructing him to pay the valid liens in the order of priority, the only question for the court to decide is, whether or not the first mortgage of Clara W. Swény is a valid lien as against the creditors, and if not, then, as the mortgage of the Huber Company is admittedly valid as against creditors, judgment in its favor follows necessarily.

True it is held in Hanes v. Tiffany, 25 Ohio St., 549, and Blandy v. Benedict, 42 Ohio St., 295, that a mortgage void as against creditors is void as against an assignee in trust for the benefit of creditors, and that, under our statute, the assignee does represent general creditors so far as necessary to protect the trust, and the rights of creditors are to be worked out through the assignment proceeding in the probate court. And if the claim of counsel represents the actual legal attitude of the case, we could readily assent to his conclusion. But does it? The facts show that either claim will, with the costs, exhaust the entire proceeds of the sale which are in dispute. So that in no aspect of the case are the general creditors interested in the result of the suit, for in no event can any of the proceeds be applied to their claims. Nor is the assignee, although a party here, and although the controversy had its origin in his application, interested in the slightest degree in the controversy between the mortgagees. Then, too, Mrs. Sweny’s second mortgage, given for the same debt, having been taken and filed before the assignment, is good as against general creditors. So that, if the Huber Company’s mortgage were out of the way, her second mortgage would be good against the fund, and wonld wholly exhaust it. The controversy, therefore, in essence and in reality, is not a matter which concerns the assignee in his capacity as representing creditors, but definitely and actually a contest between mortgagees as to which has the right to a fund which is to be wholly swallowed up by one or the other. We reach, therefore, the question which as between the mortgagees, is entitled to the fund? And to determine this we have to consider only the terms of the statute, section 4155, and the controlling facts of the ease. The statute reads:

‘ ‘Every mortgage so filed shall be void as against the creditors of the person making the same or against subsequent purchasers or mortgagees in good faith, after the expiration of one year from the filing thereof, unless, within thirty days next preceding the expiration of the said term of one year, a true copy of such mortgage, together with a statement verified as provided in the last section, together with a statement exhibiting the interest of the mortgagee in the property at the time last aforesaid, claimed by virtue of such mortgage, is again filed in the office where the original is filed.”

Admittedly Mrs. Sweny’s first mortgage is void as against general creditors because not refiled in accordance with the statute. But the Huber Company, although it answers to the general designation of a creditor, -is not, within the meaning of this statute, and because of the classification therein made, considered in connection with the attitude assumed by the company in the case, a general creditor, but a mortgagee, and in determining its rights it is to be considered as such and not as a creditor. And it must appear to be a mortgagee in good faith in order to have a standing as against Mrs. Sweny’s first mortgage. That a mortgagee of chattels is not such in good faith as against a prior mortgage of which the later mortgagee has actual notice, is not an open question in this state. Paine v. Mason, 7 Ohio St., 198; Day v. Munson, 14 Ohio St., 488.

The fact, which appears by the record, that the Huber Company took its mortgage with actual notice of the first mortgage of Mrs. Sweny, in the light of the above rule of law, controls the question, and decides it against the claim of the Huber Company unless as is claimed by the plaintiff’s counsel, the fact that an assignment for creditors has intervened affects the result. And this point, we think, is already disposed of in what precedes with respect to the relation .the assignee bears to the controversy. Looking to the substance rather than to the form it is manifest that neither the presence of the assignee as a party, nor the manner in which the controversy was initiated, should prevent the application of well settled principles, or change the result which follows their application.

We are of opinion that there is no error in the judgments of the courts below.

Judgment affirmed.


text:
    Lowry v. Anderson.

      Transfer by plaintiff of interest in pending action — How suit may proceed.

    Upon the transfer by a plaintiff, during the pendency of an action, of all his interest therein, the action may proceed in the name of such plaintiff, or the court may allow the person to whom the transfer is made to be substituted; but such transfer is no defense to the action.
    (Decided November 23, 1897.)
    Error to the Circuit Court of Seneca county.
    George Lowry brought an action in the court of common pleas against William R. Anderson, defendant, seeking to cancel and set aside a license given by him to Mr. Anderson to manufacture a rock breaker and ore crusher under letters patent held by Mr. Lowry. The grounds alleged for the cancellation of the license were that Mr. Anderson had failed to comply with the conditions of the license, which failure avoided the same.
    The answer was in effect a general denial. Afterward the defendant filed a supplemental answer as follows:
    “Said defendant says that he is informed, and believes the fact to be, and hence avers that said plaintiff -since the commencement of the action to-wit: On or about the 7th day of October, 1893, sold, assigned and transferred to The Gates Iron ' Works, of Chicago, Illinois, all of his right, title and interest in the contract set forth as “Exhibit A” in plaintiff’s petition herein, and that it, the said Gates Iron Works Company, has been, since said 7th day of October, 1893. and still is the sole owner thereof.”

      To this supplemental answer the plaintiff demurred, on the ground that it did not state facts sufficient to constitute a defense to plaintiff’s cause of action.
    The record fails to show what ruling the court made on this demurrer, but it appears that the plaintiff filed the following reply:
    “The plaintiff for reply to the supplemental answer filed herein denies:
    “That the plaintiff has assigned to said Gates Iron Works all of his right, title and interest in the contract set forth in “Exhibit A” of the petition herein. But he says that on October 7, 1893, he made a conditional assignment of said contract to said Gates Iron Works, by which said assignee reserved the right to terminate said assignment at will and reassign said contract to the plaintiff.”
    The defendant filed a demurrer to the reply, on the ground that it was insufficient in law, and stated no defense to the supplemental answer.
    The cause was pending in the circuit court on appeal, and that court sustained the demurrer to the reply, and the plaintiff not desiring to plead further, the court found, upon the supplemental answer, in favor of the defendant and against the plaintiff, and dismissed the petition at the cost of the plaintiff.
    Thereupon the plaintiff filed his petition in error in this court, seeking the reversal of the judgment of the circuit court.

      J. F. Bunn and McCauley & Weller, for plaintiff in error.

      Rohn & Baker, and Geo. E. Schroth, for defendant in error.
   By the Court:

The supplemental answer does not state facts sufficient to constitute a defense to the action, and the demurrer to that answer should have been sustained. But passing that point, the supplemental answer does not contain facts sufficient to warrant a finding and judgment upon it in favor of the defendant and against the plaintiff.

By section 5012, Revised Statutes, it is provided, that upon the’ transfer of interest in an action, the action may be continued, in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted for him.

The cause of action existed against Mr. Anderson, after the assignment the same as before; and by virtue of said section 5012, the action might proceed in the name of the original plaintiff, or if desired, the name of the iron works might have been substituted for him; but the transfer of interest was no defense to the action, and could not warrant a finding and judgment upon the merits in favor of the defendant.

The circuit court therefore erred in applying the law to the facts before it, and its judgment is con-: trary to law.

Judgment reversed, and cause remanded.


author: Minshall, J.

text:
    The Wellston Coal Co. v. The Franklin Paper Co.

      Contract for labor or material — Part performance — Breach of contract — Right of performing party.

    1. Where a contract for the performance of labor or the delivery of material is wrongfully terminated by one party, after part performance by the other, the right of the party performing', to recover the value of the labor performed or material furnished, irrespective of the contract price, depends upon the question, whether having regard to the contract, the party wrongfully terminating it, would thereby enrich himself at the expense of the other. Doolittle v. McCullough, 12 Ohio St., 360, distinguished and limited.
    2. Where one party who, to obtain a permanent market for his coal for a certain time, had entered into a contract to deliver to another the coal the latter might need in his business at a fixed price per ton, for one year, and the market price was then known to vary with the season, being higher in the late fall and winter months, and lower for the other months of the year, furnished the coal and was paid therefor under the contract, during the season when the market price was higher 'than the contract price, and the other party then wrongfully terminated the contract and refused to receive any more coal, the contract and market price being then about the-same: Held, that the party furnishing the coal, may waive the contract and maintain an action on its wrongful termination for the difference between the contract price and the market price, at the time the coal was delivered.
    (Decided November 23, 1897.)
    Error to the Circuit Court of Warren county.
    E. W. Strong, for plaintiff in error.

      P. H. Rue and Milton Clark for defendant in error.
   Minshall, J.

The action below was brought by the Wellston Coal Company to recover of the Franklin Paper Company $333, the difference between the contract price for certain coal delivered by the plaintiff under a contract claimed to have been wrongfully broken by the defendant, and the market price at the time of the deliveries, with interest. The action is not on the contract, but op what, at common law, would be termed a count in general assumpsit on a quantum valebat.

The facts, about which there is no dispute, are correctly stated in the brief of the plaintiff.

On August 7, 1890, plaintiff and defendant made a written contract by which defendant for the term of one year, agreed to take its entire supply of coal from plaintiff at the rate of $1.90 per ton of 2,000 pounds on the cars at Franklin, Ohio, which after deducting freight, would net the plaintiff $1.00 per ton.

The demand for such coal was greater during . the late fall and winter months of each year, when plaintiff’s business would be active, and less during the spring and summer months, at which times its business would be dull. The sum of $1.00 per ton for the coal was the market price, outside of freight charges, for coal of the kind mentioned in the contract, during the summer of 1890, and at the time the contract was made. Plaintiff and defendant were familiar with the ups and downs of the coal trade, and knew that the market price of such coal would be higher during the fall and winter months; and they both understood that defendant would require for its manufacturing operations during the entire period covered by the contract, a large amount of such coal, which taken by defendant during all the year covered by the contract, would give plaintiff an assured sale for that amount of coal during the dull season. Such contracts for the year’s supply of coal were usually made by manufacturers with coal shippers during the summer; and were advantageous to both parties.

These facts were known to both plaintiff and defendant, who contracted with reference to them; and plaintiff would not have made the contract whereby it agreed to supply coal during the fall and winter months at the contract price, which would be less than the market prices, except for the fact that it would supply the defendant coal at the same price for the balance of the year, when the price would be about the same as the contract price, and the demand then being small, it would not otherwise be able to sell the coal.

During the month of September, 1890, the market price of this coal, outside of freight charges, was $1.05 per ton, and from October 1, 1890, to February 1, 1891, such market price was $1.15 per ton. After February, during the rest of the year covered by the contract, the market price was the same as the contract price. During the period of time from August 1, 1890, to May 13, 1891, when the contract was broken by the defendant, plaintiff furnished defendant, during September and October, 1890, in all, 2,562],- tons of coal, for which it was paid the contract price; while, if the same coal had been sold at the market prices when delivered, plaintiff would have received $333 more for it.

About May 13, 1891, defendant wrongfully broke the contract, and refused to take any more coal from plaintiff. The contract did not bind the defendant to take any specified quantity of coal per month, but the average number of tons per month, taken before the contract was broken, was four hundred and thirty-four and one-fourth tons; and if it had continued to take coal under the contract at the same average number of tons for the balance of May and the months, June and July, the plaintiff would have made a total profit for that time under the contract, of $304.22.

The question is as to the measure'of damages to which the plaintiff is entitled in a case like this. It, as before stated, is not on the contract, but for the value of the coal delivered at the market price, before the contract was wrongfully terminated by the defendant, less what ‘had been paid therefor, i. e., the contract price. The plaintiff requested the court to charge the jury that it was , entitled to recover for the coal delivered prior to / the repudiation of the contract by the defendant, \ its market value when the deliveries were made, ¡ and is not limited to the price specified in the con-1 tract. This the court refused to do, and directed , the jury to find a verdict for the plaintiff for nominal damages only.

The general rule is, that when full performance of a contract has been prevented by the wrongful act of the defendant, the plaintiff has the right either to sue for damages, or he may disregard the contract and sue as upon a quantum meruit for what he has performed. The plaintiff has pursued the latter course; and it seems well settled, both on reason and authority, that he had the right to do so. 2 Sedgwick on Damages, 8th ed., 654; Chamberlain v. Scott, 33 Vt., 80; McCullough v. Baker, 47 Mo., 401; Kearney v. Doyle, 22 Mich., 294; Buffkin v. Baird, 73 N. C., 283; U. S. v. Behan, 110 U. S., 338; Merritt v. Railroad, 16 Wend., 586; Clark v. Mayor of N. Y., 4 Conn., 338.

But it is claimed on the authority of Doolittle v. McCullough, 12 Ohio St., 360, that the contract price must still be the measure of the plaintiff’s recovery. There are many expressions in the opinion in that case that seem +o support this view, and much of the reasoning is to the same effect. But all that is there said must be taken as said with reference to the facts of that case. The rule there stated may be regarded as a proper one in a case where, as in that case, it appears from the claim of the plaintiff, that the breach of the contract by the defendant worked no loss, but a benefit to him, on the ground, as appears, that had he been required to complete the work, he would have suffered a much greater loss; for, if the least inexpensive part of the work could not have been done without loss, it follows that the doing of the remaining part, under the contract, would have resulted in a still greater loss. The action upon a quantum meruit is of equitable origin, and is still governed by considerations of natural justice. Hence, where one has performed labor or furnished material under a contract that is wrongfully terminated by the other party before completion, the question arises whether the party, not in fault, should be confined to the contract for what he did, or to a quantum meruit; and this must depend upon whether the act of the other party in terminating the contract, works a loss or not to him, regard being had to the contract. If it works no loss, but is in fact a benefit, as in the case of Doolittle v. McCullough, there are no considerations of justice requiring that he should be compensated in a greater sum for what he did than is stipulated in the contract. These considerations exercised a controlling influence in the case just referred to. The plaintiff had a contract with the defendant for the making of certain excavations in the construction of a railroad. He was to receive for the entire work eleven cents per cubic yard. He had performed the least inexpensive part of the work, when the contract was wrongfully terminated by the defendant, and. on this part, by his own showing, he had suffered a loss. The proof showed that the performance of the remainder, being hard-pan, would have cost him a great deal more. It was then evident, as the court observed, that he had sustained no loss, but a benefit, from the termination of the contract by the defendant. But in the case before us the facts are very different. They are in fact just the reverse. The contract was for the delivery of coal at' a price generally received during the dullest season of the whole year. The defendant received the coal during the season when the market was above the contract price. He had the benefit of the difference between the market and the contract price; but when the dull season arrived and the advantages of the contract would accrue to the plaintiff, the defendant repudiated it. The difference between the two cases is thus apparent. In the case before us, justice and fair dealing require that the defendant having repudiated the j contract, should pay the market price for the coal / at the time it was delivered; in the former case, i as the repudiation of the contract by the defendant did not enrich him to the loss of the plaintiff, there were no considerations of justice on which the plaintiff could claim, more than the contract price for what he had done under the contract.

The object in allowing a recovery of this kind is not to better the condition of the plaintiff under the contract, were it performed, but to save him from a loss resulting from its wrongful termination by the defendant; or, in more general words, to prevent the defendant from enriching himself at the expense of the plaintiff by his own wrongful act. The real test in all cases of a plaintiff’s right to recover as upon a quantum meruit for part performance of a contract, wrongfully terminated by the defendant, depends upon the consideration whether the defendant is thereby enriched at the loss and expense of the plaintiff; if so, then the law adds a legal to the moral obligation, and enforces it. Keener, Quasi Contracts, Í9; and ch. V. passim. And while the action is not on the contract itself, yet it is so far kept in view as to preclude a recovery bj7- the plaintiff where he would necessarily have lost more by performing the contract, for the .consideration agreed, upon, than he did by being prevented from doing so.

In this view the case of Doolittle v. McCullough was rightly decided, and, when limited to its facts, may well stand as authority in all similar cases.

Judgment of the circuit court and that of the common pleas reversed, and cause remanded for a new trial.