text:
    Woods v. Waddle.

      Alimony after divorce in foreign jurisdiction.

    A. and P. were married in West Virginia at their domicile, where A. retained his domicile, but P. went to Tennessee, where, in ex parte proceedings, she obtained a divorce a vinculo from A., but, as there was no personal service upon A., her application for alimony was dismissed without prejudice and to enable ber to sue for it elsewhere. She then brought suit here for alimony alone, and to reach certain property in Ohio belonging to A.; in which case she obtained service upon A., who also appeared and filed pleadings in the case, and on trial the court found sufficient cause and allowed her alimony. Held, P. had a right thus to bring her action for alimony alone, and she could have her claim therefor determined, and, if sustained upon trial, the court could allow her reasonable alimony out of the'property of A.
    Error to the District Court of Belmont county.
    Archibald Woods and Pauline V. Waddle were married August 22, 1872, at Wheeling, in West Virginia, the domicile of both, and where Archibald Woods has since resided. In the early part of 1874 they separated, and she went to the state of Tennessee, and on August 14, 1875, applied for divorce and alimony. On March 23,1877, she obtained a decree “that complainant be and she is hereby divorced a vinculo from Archibald Woods, and is hereby restored to all the rights and liabilities of a feme sole, with her maiden name, Pauline V. Waddle, forever free from the control and dominion of Archibald Woods. But this cause is retained as to the matter of alimony and for no other purpose.” And on July 1, 1880, the decree as to alimony was as follows: “ It appearing that defendant is a non-resident, the court, on motion of the plaintiff, dismisses this cause as to alimony without prejudice to the plaintiff, so that e'he may be enabled to proceed in a foreign jurisdiction for recovery thereof, or do any other act necessary therein.”
    On February 19,1881, she began suit in Belmont county, Ohio, for alimony onty, alleging her bona fide residence in Ohio “for the year last past.” She charged Archibald Woods with habitual drunkenness from the time of their marriage, and with extreme cruelty about January 10, 1874. She described certain land owned b3 him in that county, and asked for alimon3 and other equitable relief.
    A demurrer to the petition was sustained in the court of common pleas, and the case was appealed to the district court. The district court overruled the demurrer, and on trial the court made the following finding and decree, viz :

      “ The court having heard the evidence and arguments of counsel, and being fully advised in the premises, find the defendant has been guilty of habitual drunkenness as alleged in the petition, and that by reason thereof plaintiff is entitled to alimony out of the estate of the defendant, Archibald Woods, and the court allows said plaintiff as reasonable alimony in money the sum of $1,000. It is therefore considered, ordered, and adjudged by the court that the plaintiff, Pauline V. Waddle, recover from the defendant, Archibald Woods, the said sum of $1,000, allowed her as alimony aforesaid, and that said defendant also pay the costs of this action, which are here adjudged against him. And the said judgment for $1,000 and costs is hereby made a lien upon the farm, described in the petition.”
    Plaintiff in error now seeks a reversal of the judgment.

      John F. Kelly, for plaintiff' in error.
    After a vinculo divorce, alimony can not be granted by another court in an independent proceeding. Nor can it be allowed upon a foreign ex parte divorce, or after such divorce, or for cause which occurred before such divorce.
    After the termination of the proceedings in Tennessee, the defendant in error could not obtain alimony in another jurisdiction for the same cause whieh enabled her to obtain her divorce. The Ohio courts had no jurisdiction, because Ohio is not the domicile of the parties, of the marriage, or of the delictum..

    The Ohio statute provides for three kinds of alimony: (1) temporary alimony, known as alimony pendente lite, provided for in section 5701, Revised Statutes; (2) alimony without divorce, section 5702; (3) permanent alimony upon the granting of a divorce a vinculo and in the same proceeding, sections 5699, 5700.
    If the wife petition for alimony alone, it can only be granted when the husband has committed one or more of the acts specified in section 5702. In such case it is not incident to a divorce, and is only allowed during the existence of the marriage relation, and not after the marriage has been dissolved. The Ohio cases support this construction. Act of 1853 (51 Ohio L. 377. § 10); Jones v. Jones, Wright, 155; Hesler v. Hesler, Wright, 210; Bascom v. Bascom, Wright, 632; Johnston v. Johnston, Wright, 454; Paige on Div. 290.
    Exclusive of the separate maintenance provided by statute, section 5702, the principle is well established that alimony can' not be granted in an Independent proceeding when it is the only thing sought.
    In -England, prior to 1858, alimony was only given in and only followed a divorce a mensa et thoro.

    The decisions in Alabama, California, Kentucky, Maryland, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee, and Virginia, concerning the granting of alimony, alone, apply to and govern the doctrine of separate maintenance or separate support, which has its origin in the assumption by equity of this jurisdiction at a very early date, or is granted by statute. Butler v. Butler, 4 Litt. (Ky.) 201; Galland v. Galland, 38 Cal. 265; Jamison v. Jamison, 4 Md. Ch. Dec. 289; 2 Bish. Mar. & Div., secs. 358, 359, 361.
    The court in Cox v. Cox, 19 Ohio St. 502, assumed jurisdiction on the ground that the application for divorce and alimony was made by the wife at her domicile and the bona, fide domicile of both. The husband and wife were both domiciled in Ohio. The husband deserted his wife and went to Indiana for and procured an ex parte divorce. Here the wife deserts her husband and her bona fide domicile and procures an ex parte divorce in a' foreign jurisdiction.
    In Cox v. Cox the court relied upon Mansfield v. McIntyre, 10 Ohio, 30; Richardson v. Wilson, 8 Yerg. 67; Crane v. Meginnis, 1 Gill. & J. 463; s. c., 19 Am. Dec. 237; and Shotwell v. Shotwell, Sm. & M. Ch. 51, which, it is submitted, do not support it. The first named case and Cooper v. Cooper, 7 Ohio (2 pt.) 238, were not well considered and are opposed to the current of authority. Paige on Div. 369; Harding v. Alden, 9 Me. 140; s. c., 23 Am. Dec. 549.

      In Richardson v. Wilson, supra, where alimony, was granted after an ex parte legislative divorce, the court did not assume original inherent jurisdiction, but statutory jurisdiction. It is not applicable to the question involved in Cox v. Cox, or to the case at bar. McBee v. McBee, 1 Heisk. 558; Rutledge v. Rutledge, 5 Sneed, 554; Nicely v. Nicely, 3 Head, 184; Swan v. Harrison, 2 Cold. 534.

      Crane v. Meginnis, supra, is not authority, because the chancery courts of Maryland assumed, from colonial times, and exercised at the time of the decision of that case, inherent jurisdiction to grant alimony. Wallingsford v. Wallingsford, 6 Har. & J. 485; Jamison v. Jamison, 4 Md. Ch. 289; MacNamara’s case, 2 Bland. 566; Helms v. Franciscus; 2 Bland. 544.

      Shotwell v. Shotwell, supra, was overruled in Lawson v. Shotwell, 27 Miss. 630, which was followed and approved in Bankston v. Bankston, 27 Miss. 692.

      Cox v. Cox is not supported by the cases cited and is not authority for the proposition that alimony can be granted after a divorce. It is authority on two points: (1) the domicile of the wife is not affected by the husband’s desertion ; (2) where a person leaves his domicile and procures an exporte divorce in another jurisdiction, it is fraudulent and not valid at the domicile. Van Fossen v. State, 37 Ohio St. 317. This ground and Cox v. Cox is supported by Hoffman v. Hoffman, 46 N. Y. 30; Shannon v. Shannon, 4 Allen, 134; Smith v. Smith, 13 Gray, 209; Leith v. Leith, 39 N. H. 20; Kerr v. Kerr, 41 N. Y. 272; Commonwealth v. Blood, 97 Mass. 538; Borden v. Fitch, 15 John. 140, but not by the cases cited.
    In Bowman v. Worthington, 24 Ark. 529, the wife left her husband’s domicile and obtaiued a legislative divorce in Kentucky and then commenced proceedings for alimony in Arkansas, the husband’s domicile. The court held that “ alimony being an incident to the divorce, courts can only allow it in connection with the decree of divorce, and have no power to decree it on a separate application for alimony,” reviews all the cases, repudiates Richardson v. Wilson, supra,
      approves Fischli v. Fischli, 1 Blackf. 360, and holds the position taken by the courts of Virginia, Kentucky, South Carolina, and Alabama to be against principle and authority.
    Alimony is an incident to a divorce. Fischli v. Fischli, supra; Moon v. Baum, 58 Ind. 194; Muckenburg v. Holler, 29 Ind. 139; Chestnut v. Chestnut, 77 Ill. 346; Trotter v. Trotter, 77 Ill. 510; Prosser v. Warner, 47 Vt. 667; McGee v. McGee, 10 Ga. 477; Goss v. Goss, 29 Ga. 109; Blythe v. Blythe, 25 Iowa, 266; Harshberger v. Harshberger, 26 Iowa, 503; McEwen v. McEwen, 26 Iowa, 375; Cole v. Cole, 23 Iowa, 433; Graves v. Graves, 36 Iowa, 310.
    The same rule prevails in Maine: Jones v. Jones, 18 Me. 311; Henderson v. Henderson, 64 Me. 419; Littlefield v. Paul, 69 Me. 533. And in Massachusetts: Shannon v. Shannon, 2 Gray, 287; Baldwin v. Baldwin, 6 Gray, 342; v. Dunham, 8 Cush. 405. And in Michigan: Peltier v. Peltier, Har. Ch. 19; Perkins v. Perkins, 16 Mich. 162; Wright v. Wright, 24 Mich. 180.
    It is the law of Missouri: Simpson v. Simpson, 31 Mo. 24; Doyle v. Doyle, 26 Mo. 545, 549. It is the rule in New Hampshire: Parsons v. Parsons, 9 N. H. 317; Sheafe v. Sheafe, 24 N. H. 567. And in New Jersey: Yule v. Yule, 2 Stock. 138; Kirrigan v. Kirrigan, 15 N. J. Eq. 146; Nichols v. Nichols, 25 N. J. Eq. 60; Rockwell v. Morgan, 2 Beas. 119; Anshutz v. Anshutz, 1 C. E. Green, 162; Cory v. Cory, 3 Stock. 400. And in New York: Atwater v. Atwater, 53 Barb. 621; Perry v. Perry, 2 Paige, 501; Lewis v. Lewis, 3 John Ch. 519. And in Vermont: Harrington v. Harrington, 10 Vt. 505. And in England: Winstone v. Winstone, 2 Swab. & F. 246.
    The Tennessee divorce can not be received in Ohio as the basis for alimony, because Tennessee was not the bona fide domicile of both, or either of the parties, nor the place of delictum, nor the place of the marriage. Van Fossen v. State, 37 Ohio St. 317; Shannon v. Shannon, 4 Allen, 134; Smith v. Smith, 13 Gray, 209; Leith v. Leith, 39 N. H. 20;
      Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 N. Y. 30.

      L. Danford, for defendant in error.
    That alimony, in Ohio, is an independent remedy, which may be pursued by itself, where a divorce is not sought, is a proposition too plain for discussion. Every section of the chapter of the statutes on the subject of divorce and alimony shows it. See a discussion of the subject in Graves v. Graves, 36 Iowa, 310; s. c., 14 Am. Rep. 525; Bish. Mar. & Div., sec. 350.
    When we get the distinction between the old English rule that alimony is a mere incident to a divorce and the Ohio statute thoroughly in mind, we have cleared away the difficulty that surrounds the case. See Rogers v. Rogers, 15 B. Mon. 364; 14 Am. Law Rep. 311; Walker & Bates Dig. 35; Bish. Mar. & Div., sec. 360.
   Eollett, J.

It is not claimed that Fauline Y. Waddle was not rightly divorced and restored to her maiden name; neither is it claimed that her right to alimony had ever been passed upon in any prior action.

It is not questioned that the amount of the alimony decreed is just and reasonable.

If she had not been divorced she was the wife of plaintiff in error; and, if residing in Belmont county, without doubt as a wife, under section 5702 of the Revised Statutes, she could file her petition for alimony alone. Section 5702 provides . . . ; “ the wife may file her petition for alimony alone, or, if a petition for divorce lias been filed by the husband, she may file her cross-petition for alimony, with or without a prayer for the dissolution of the marriage contract,” and “habitual drunkenness” is specified as a cause for alimony. The old English doctrine that “ alimony has no independent existence,” is not the law of Ohio.

As to where and by whom a petition for alimony may be filed, section 5690 of the Revised Statutes provides as follows: “The plaintiff, except in an action for alimony alone, shall have been a resident of the state at least one year before filing the petition; all actions for divorce, or for alimony, shall be brought in the county where the plaintiff has a bona fide residence at the time of filing the petition, or in the county where the cause of action arose; and the court shall hear and determine the same, whether the marriage took place or the cause of action occurred, within or 'without the state.”

No question is made by the record as to her alleged bona fide residence in Belmont county, as is required by law. The record shows legal service and the personal presence of the parties in court.

The language of the statute is : “ The eourt shall hear and determine the same, whether the marriage took place or the cause of” divorce (or, as here, alimony) “occurred within or without the state.” And the court found the plaintiff in error “ guilty of habitual drunkenness, as alleged in the petition.” This is the “ cause ” for alimony.

Thus the language of the statute answers nearly all the questions presented in this case.

It is not claimed that this woman’s right to alimony had been passed upon by any court; and the Tennessee court, not having jurisdiction of this matter, did not pass upon it, and it could not adjudge alimony in that case. 2 Bish. Mar. & Div., sec. 170; Whar. Ev. 818.

So far as appears the action in Belmont county was the first in which the defendant in error could recover alimony from the plaintiff in error, and no limitation is claimed. But the words of the statute (§ 5702 Rev. Stat.) are: “the wife may file her petition for alimony alone.” May the word “wife,” as used in this statute, include a woman divorced, as was this defendant in error ?

In the case of Cox v. Cox, 19 Ohio St. 502, this eourt allowed the benefits of this statute to a woman whose husband had been divorced from her by a court in Indiana, while she remained domiciled in Ohio. In that case, on page 512, White J., said:. “ It is hot essential to the allowanee of alimony that the marriage relation should subsist up to the time it is allowed.- On appeal, alimony may be decreed by the district court, notwithstanding the subsisting divorce pronounced by the court of common pleas. It is true the statute speaks of the allowance as being made to the wife. But the term ‘ wife ’ may be regarded as used to designate the person, and not the actual existing relation; or the petitioner may still be regarded as holding the relation of wife for the purpose of enforcing her claim to alimony.”

He thus shows that the word wife designates the person divorced after the divorce is granted. He further considered the questions at length and the court there held: “ That the decree of divorce was no defense to her petition for alimony.” The principles there stated and held sustain this judgment.

Here there is no showing of fraud on the part of the defendant in error, nor any claim that the plaintiff in error has been wronged by having the alimony suit tried in a separate action.

"We think that, under the law of this state, the district court, in allowing alimony to the defendant in error, did not err. Judgment affirmed.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    The State ex rel. Attorney-General v. Bryson.

      Municipal corporations — Power of suspension and appointment of fire engineer bp mayor.

    Where, under an ordinance of the city of Columbus, which creates the office of fire engineer, and provides “ that such officer shall be appointed by the mayor, by and with the advice and consent of the city council of said city, on the first Monday of June, A. D. 1871, and annually thereafter, and shall hold the office for the period of one year, and until his successor is appointed and qualified;” and further provides that “all vacancies in said office shall in like manner, immediately upon the vacancy occurring, be filled by appointment for the unexpired term, and until a successor is appointed and qualified;” and which further provides, “the mayor shall immediately upon making any such appointment, report the name of such appointee to the city council of said city for its action thereon;” and further provides that the person so appointed shall qualify by iaking an oath and giving a bond to be approved by the mayor, a person has been duly appointed for a full term by the mayor by and with the advice and consent of the council, and has qualified, such term does not expire until a successor has been appointed by the mayor by and with the advice and consent of the council, and has qualified; and there is no power given by such ordi-
    nance to the mayor, under such circumstances, to declare a, vacancy, nor to suspend such incumbent, nor to appoint another in his place; nor is any such power given by statute except for neglect of duty, misconduct in office, or other sufficient cause. Hence, an attempt by the mayor, under such circumstances, to suspend such incumbent by declaring a vacancy and appointing another person to the place, is inoperative, and gives such other person no right or title to such office as against such incumbent.
    QUO WARRANTO.
    The action is brought to determine the right of the defendant to the office of fire engineer of the city of Columbus.
    It is alleged in the petition, in substance, that the defendant has intruded himself into and usurped and unlawfully bolds that office, and is assuming to exercise the powers, djuties, and functions thereof, and to control, manage, and operate the fire department of the city without authority of law, and to the great danger of the property of the city, and to the prejudice of the state; that about June 1, 1885, one David D. Tresenrider was by tbe mayor duly appointed ■ fire engineer, which appointment being soon thereafter confirmed by the city council, said Tresenrider duly qualified and gave bond and. entered upon the discharge of the duties, and has since been and now is entitled to exercise the powers, duties, and functions of the office, but the same have been unlawfully usurped by the defendant. A prayer for judgment ousting defendant and inducting Tresenrider follows.
    The answer does not deny the appointment,■confirmation, qualification, etc., of Tresenrider, but avers that his term expired on the 7th day of June, 1886, and that on the 5th day of June the mayor appointed the defendant to the office, and forthwith reported his name to the council for its action; that the council has refused to take any action upon the nomination except to refer the same to a committee ; that a majority of the members of the council, in a secret and unofficial caucus, resolved that they would not advise and consent to the appointment of any person other than Tresenrider, and since refuse to act upon the appointment; that on the 22d day of June, the defendant gave bond and duly qualified as such engineer, and, by direction of the mayor, proceeded on that day to take possession of the office, which Tresenrider then surrendered to him, and he has since continued to perform the duties.
    The reply denies that Treseurider’s term had expired, and alleges that by virtue of the ordinance he continued the lawful incumbent until his successor should be appointed and qualified; denies that the mayor had any power to appoint to the office except by and with the advice and consent of the council, which has never advised or consented to the appointment of defendant, but has rejected it; alleges, in substance, that on the 22d day of June the mayor, without right and without cause, undertook to, and by an order issued and served on Tresenrider, did temporarily suspend him and appoint the defendant; denies that Tresenrider surrendered the property, etc., of the office to defendant, except under the above order, and alleges that such suspension and appointment being by the mayor reported to the council at its regular meeting, June 28th, that body refused to concur, and passed a resolution to that effect, and on the next day a copy of the resolution was served on the defendant and a demand made on him by Tresenrider to surrender the office, which he refused to do. A copy of the ordinance is given in the reply; also copy of the order of the mayor to Tresenrider of 22d June ; also copy of the mayor’s communication to the council of 28th June, and of the' resolution of non-concurrence of same date.
    By an agreed statement, signed by the counsel of each party, it is admitted that on the 5th June, 1886,the mayor sent a communication to the council nominating the defendant as fire engineer; that at the next meeting of the council the nomination was duly referred to the regular committee on fire department, and the same was still pending in the committee on the 22d day of June, when the mayor issued his order suspending Tresenrider and appointing the defendant, and the original nomination is still awaiting the action of that committee. At the next regular meeting of council, June 28th, the mayor communicated his action to the council, and on that date that body refused to confirm the action of the mayor. No further action has been taken by the council in the premises.
    The office of fire engineer was created by the ordinance referred to, which is as follows :
    “ Section 1. Beit ordained by theeity council of Columbus, That it is deemed expedient to create, and there is hereby created, the office of fire engineer of the city of Columbus; that such officer shall be appointed by the mayor, by and with the advice of the city council of said city, on the first Monday of June, a. d. 1871, and annually thereafter, and shall hold his office for the period of one year, and until his successor is appointed and qualified, and all vacancies in said office shall in like manner, immediately upon the vacancy occurring, be filled by appointment for the unexpired term, and until a successor is appointed and qualified. The mayor shall immediately, upon making any such appointment, report the name of such appointee to the city council of said city for its action thereon ; the fire engineer shall perform the duties prescribed in the act entitled ‘an act to provide for the organization and government of municipal corporations,’ passed May 7,1869, and the acts amendatory thereof and supplementary thereto, as well as the duties prescribed'by this or any other ordinance of the city; the person so appointed shall be an elector of the city of Columbus, and before entering upon the duties of his office shall-take an oath or affirmation to support the constitution of the United States and the State of Ohio, and also an oath or affirmation of office, and shall also execute a bond to the city of Columbus, in the sum of $5,000, to be approved by the mayor, conditioned for the faithful performance of the duties of his office, which bond shall be deposited with the clerk of the corporation, and shall be by the clerk, with the approval indorsed thereon, recorded, filed, and preserved in- his office; the said fire engineer shall receive as compensation for his services the sum of $1,000, payable monthly from the city treasury.”
    The mayor’s order of suspension to Tresenrider, of date June 22d, was of tenor following:
    “ Your term of office as fire engineer having expired, Charles Bryson has been appointed by me to the same office, and will, after 12 m. to-day, be recognized and obeyed as the fire engineer of this city. You will, therefore, at the hour above named, turn over to Mr. Bryson all property in your possession belonging to the city of Columbus, Ohio.”
    The mayor’s communication to. the city council, of date June 28th, was of tenor following:
    “ I have the honor to report that on Tuesday, June 22, 1886, by virtue of the authority and direction of your honorable body, I, the mayor of the city, appointed Charles Bryson fire engineer of this city, vice David D. Tresenrider, whose term of office had expired. At 12 m. on the day above mentioned, the newly-appointed engineer, Charles Bryson, assumed control of the city fire department, and is now rutming it. Hoping my action will meet with your approval.” Signed officially.
    The resolution of the council of same date was as follows :
    “Resolved, by the city council of the city of Columbus, That the action of the mayor in respect to the suspension of D. D. Tresenrider from the office of fire engineer of the city of Columbus, and the appointment of Charles Bryson to fill the temporary vacancy, be not concurred in.”

      F. L. Taylor and D. F. Pugh, for relator.
    The successor can only be appointed and qualified when the provisions of the ordinance are complied with, i. e., when he has been appointed by the mayor and the appointment has been confirmed by the city council. The mayor may for “neglect of duty, misconduct in office, or other sufficient cause ” temporarily suspend the fire engineer, but this does not, of itself, divest him of his legal title to the office. By having the suspension removed he takes possession again by virtue of his original title. State v. Heinmiller, 38 Ohio St. 101, 108.
    The power of the mayor temporarily to suspend under section 1749 of the Revised Statutes must be for cause. It is not an arbitrary power.
    The mayor’s order suspending Tresenrider, inasmuch as it failed to specify any grounds for suspension, was without authority of law and void. It follows that the order appointing Bryson was a nullity. It never has had any validity and Bryson could acquire no rights under it.
    It is contrary to the policy and the spirit of our laws that an officer may be removed without cause and without an opportunity of being heard. Section 1685, Revised Statutes; State v. Bryce, 7 Ohio (2 pt.) 82; Murdock v. Phillips Academy, 12 Pick. 244; People v. Cooper, 57 How. Pr. 416.
    All the powers and duties of the mayor are conferred, either expressly or derivatively upon him by the statutes. Billon Mun. .Corp. 208.
    The power of removal is exclusively vested in the council. Section 1685, Revised Statutes.

      George K. Nash, for the defendant.
    The only question before the court is this: When the term of office of fire engineer has expired, can a new appointee by the mayor, duly made and reported to the council, under any circumstances take possession of the office before the council has advised and consented to such appointment ?

      Tbe council ñas wholly refused to perform its duty ; and if the stand which it has taken is sustained, the mayor will be wholly deprived of the right, which is conferred upon him in the ordinance of the city, to name the fire engineer, and the council can assume 'to make the appointment as well as to advise and consent to it.
    Suppose that a vacancy arises by death in the office of fire engineer instead of by expiration of term, and council neglects to take any action upon the mayor’s appointment, certainly the appointee could assume control of the department until the council saw fit to act.
    The only limitation found in the ordinance upon the right of the appointee to take and exercise the duties of the office is, that he shall take an oath of office and give bond. As soon as the name is sent by the mayor to the council the appointment is made, although it has not been advised and consented to by the council.
   Spear, J.

The facts necessary to a determination of the case sufficiently appear in the allegations of the pleadings not denied, and in the agreed statement.

Inasmuch as it is admitted that Tresenrider had been, duly appointed, confirmed, and qualified as fire engineer, as stated in the petition, the burden of maintaining Bryson’s claim to the office is properly cast upon him. It will be observed that the mayor undertook to declare a vacancy and to appoint Bryson to fill it. Was he vested with power to do this? The defendant rests his claim upon the order of the mayor, hereinbefore given, and the provisions of the ordinance, and expressly disclaims that the mayor undertook to act, in his order of Juñe 22, 1886, under section 1749 of the Revised Statutes. This is the section which gives the right to a mayor to suspend for “ neglect of duty, misconduct in office, or other sufficient cause,” and appoint another to fill the temporary vacancy, and that “ all such suspensions, and the cause thereof, and all such appointments, shall be by him reported to the council for their action at the next regular meeting thereafter.”

The contention is that the facts, tinder a proper construction of the ordinance, show a vacancy to have occurred which the mayor might lawfully fill, and, upon this assumption, it is insisted that the only question before the court is this : “ When the term of office of a fire engineer of Columbus has expired, can a new appointee by the mayor, duly made and reported to the council, under any circumstances take possession of the office before the council has advised and consented to such appointment?” It is urged that this question should be answered in the affirmative. Illustrative of the force of this claim a supposed case is put of a vacancy caused by the death of an occupant of the office, and a name at once sent in to council by the mayor, upon which the council neglects to take any action for months ; if the appointee may not take charge of the office until confirmed, the fire department would be left without a head to direct its movements, leading to a lamentable state of affairs, and it is insisted that the cause of good order requires an affirmative answer; that such appointee should assume control of the department and continue until the council does act. It is urged, further, that by the language of the ordinance it is shown, that the appointment is made when the name is sent in by the mayor to the council, although that body has not advised and consented to it; that anytime after the appointment by the mayor the appointee may take the proper oath, give the required bond^and get the mayor’s approval thereof, which steps appear to be the only limitations on the appointee taking the office after his appointment; that the words “so appointed” refer to the act of the mayor in making the appointment, and not to that of the council in advising and consenting 'to it. This position is based upon the theory that a vacancy has actually occurred.

Unfortunately for this construction, the language of the ordinance will not admit of it. That instrument provides that “ such officer shall be appointed by the mayor by and with the advice and consent of the city council of said city, on the first Monday of June, &. B. 1871, and annually thereafter, and shall hold his office until his successor is appointed and qualified.” It would seem clear that when the ■ordinance has provided a mode of appointment, to wit, “by the mayor by and with the advice and consent of the city council,” and that the engineer shall hold “until his successor is appointed and qualified,” there is hardly room for doubt that the purpose was to require, as a necessary element in an appointment, the consent of council; or for doubt that before the tenure of one who has been appointed by the mayor and confirmed, and has qualified for a regular term, can be considered as at an end, not only must the year have elapsed, but his successor must have been, in like manner, appointed and confirmed and qualified. The tenure might expire at the end of a year by the appointment and confirmation and qualification of a successor, but if no successor be so constituted, the incumbent continues as the lawful and rightful possessor of the office. If, in a strictly technical sense, the “ term” may be said to have expired, that would not determine the right to hold the office; nor would a vacancy in the office necessarily result, because the expiration of a “ term,” used in this narrow sense, does not always create a vacancy in the office. We are not dealing-with a ease where the office is limited by the constitution, or even by the law, to a holding of one year only. The section of the Revised Statutes, 1709, which provides for the selection of city officers, fixes the term of those who are appointed at one year, except as otherwise provided, and section 1713 provides for the continuance of the incumbent in office until his successor is qualified. And while it may be admitted that in a case where the term is, in the manner above suggested, limited to a stated time, with no provision for a longer holding, a vacancy would ensue at the expiration of the term if no successor had then qualified, such a condition of things is not here presented. The office could not be regarded as vacant while filled by one lawfully entitled to it, nor could an appointment made ostensibly to fill a vacancy, create one. It is manifestly the design of the ordinance to secure to such office an incumbentwho possesses the confidence and approval, not only of the mayor, but also of the city council. Beyond this, the engineer is to hold his office, not only for one year, but “ until his successor is appointed and qualified.” The successor is one who is to take the place. The language implies that he is to succeed to all that the other enjoyed. . A mere ad interim appointee, not confirmed, is in no true sense the successor of one who has had a full term. To assume that one who is simply nominated by the mayor becomes a “ successor,” is to ignore an important feature of authority which the real successor is to have; he is not only to be clothed with such authority as his designation by the mayor gives him,- but with the approval of the council as well. Length of term also is an important right held by one who is really appointed. Even though the mayor’s appointee should take possession of the office he would have to retire unless the council approved. The mayor’s nomination alone could give him no right to continue, and without that right he could not enjoy the term provided, and could not be, in the fullest legal sense, a “ successor.” Besides, as no other mode of clothing such person with the power of a successor is pointed out, it results that he is to be so constituted in the same manner, and with the same acquiescence of council, that was necessary to constitute the predecessor a fire engineer. The term, “until his successor is appointed and qualified,” in this ordinance, therefore, should have the same effect as though it read, “ until his successor is, in like manner, appointed and qualified.” The manner in which an appointment is brought about, within the meaning of the ordinance, being given in the first instance, it is but natural to apply to the term “ appointed” the same signification in the succeeding passages of the ordinance as attaches to it where first used. The term, “person so appointed,” it seems to us, can have reference only to the person appointed in the mode pointed out in the ordinance by the preceding provisions, and can not be held.to imply one appointed by less formality than is there made necessary.

This court held, in The State v. Howe, 25 Ohio St. 588, that “ where an officer appointed by the governer, by aud with the advice and consent of the senate, is authorized by law to hold his office for a term of three years, and until his successor is appointed and qualified, and no appointment of a successor is made by the regular appointing power at the expiration of his term of three years, the office does not become vacant; but the incumbent holds over as a de jure officer until his successor is duly appointed and qualified,” and no- reason is perceived why this rule would not control the case at bar.

As regards an appointment to fill a vacancy, it is not apparent that any different course of proceeding has been provided for. After making provision for the appointment of a successor to an engineer holding for a full'term, and indicating what steps are necessary to complete such an appointment, the ordinance next provides that “ all vacancies in said office shall in like manner, immediately upon the vacancy occurring, bé filled by appointment for the unexpired term, and until a successor is appointed and qualified.” This seems to require precisely the same formality of action by the council, whether the appointment be for a full term or to fill a vacancy. Then follows the language: “ The mayor shall, immediately upon making any such appointment, report the name of such appointee to the city council for its action thereon.” This necessity for submission to council apparently applies not less to an appointment to fill a vacancy than to one made the first Monday of'June, and enjoins upon the mayor no.greater duty in the one case than in the other. Again, by an appointment to fill a vacancy, as well as by the yearly appointment, the appointee is given the valuable right, not only to hold the office for a given time, but “until a successor is appointed and qualified.”

If this construction of the ordinance be the proper one, inasmuch as “ all vacancies ” would seem to include one occasioned by death as well as one brought about by other means, it would appear that the language of the ordinance itself furnishes an answer to the case put by counsel, though we can hardly regard it as arising in-this case. The court is not called upon to hold what would be the power or duty of the mayor in case of a vacancy occasioned by death. Whether or not, in such an emergency, there might be found in the statutes some general grant of power to the mayor to direct a person to take charge of the department temporarily, and whether or not, if there exists such power, the person so authorized could be regarded as a “ fire engineer,” we need not here consider. As to the suggestion of danger from long delays, it is difficult to see how that consideration aids in giving construction to the ordinance, for there is no apparent reason why the law should assume that there would follow unnecessary or unreasonable delay in the action of the council in such emergency any more than in the action of the mayor*. The members of that body are chosen from the same constituency that selects the chief executive officer, and it is hardly to be presumed that they would not bring to the discharge of their duties the same high sense of devotion to the public good which would actuate the mayor. The following, from the opinion of Birchard, J., in The State v. Choate, 11 Ohio, 513, would seem to apply to a city government as well as to that of the state: “Arguments of this nature, which assume the possibility that a co-ordinate branch of government will wantonly violate its plain duty, ought to be held of little weight in a court of justice, where the-legal presumption obtains that everypublie functionary will faithfully observe the obligations of duty imposed upon him by his oath of office.” However this may be, the case before us is a wholly different one, and is, as we think, clearly covered by the terms of the ordinance. The fire engineer in office held under his appointment until his successor— one in the sense hereinbefore indicated — should be appointed and qualified. The nomination by the mayor not having been consented to by the council, no successor had been appointed. Hence the term of the incumbent had not expired, and there was no vacancy.

This view of the limitations upon the power of the mayor seems to be in accord with the spirit of our statutes upon the subject of municipal corporations. The ordinance was authorized by the statute, is in subordination to it, and it is to bo presumed that the council, in passing it, was fully apprised of the law, especially as a direct reference to it is embraced in the ordinance itself. Section 1749, before referred to, makes adequate provision for suspension by the mayor for neglect, misconduct, or other sufficient cause. By clear implication there must be ground for such action before the mayor can suspend. Neither by the statute nor by the ordinance, nor by both, is'that officer vested with arbitrary power to suspend or remove at will. He may suspend for statutory cause; he may not without such cause. And when he assumes to act for cause he is authorized to appointanother person to fill the tempprary vacancy; and the requirement that all such suspensions and the cause thereof, and all such appointments, shall be reported to council at the next regular meeting, is for the purpose of invoking the supervisory action of council in the premises. That body may, in its discretion, approve or disapprove such suspension, and the disapproval terminates the vacancy, and the person appointed to fill it ceases to be an officer of the city. State v. Heinmiller, 38 Ohio St. 101. The purpose of the statute is further shown by reference to other sections of the title (XII), which treats of municipal corporations. Sections 2474, 2475, and 2476 recognize the office of fire engineer, aud make provision as to his duties and compensation. Section 1685, same title, provides that an officer “ appointed by authority of this title, except as otherwise provided therein, may be removed from office at the pleasure of the council by a vote of a majority thereof;” but in no case is a removal to be made unless a charge in writing is preferred and opportunity given to make defense. The statute and the ordinance will thus be found to supplement each other. The ordinance furnishes what the statute lacks, to wit, a mode of appointment and qualification; and the statute supplies what is not provided in the ordinance, to wit, a mode of suspension and removal; but there is no power given'the mayor anywhere in the statutes to remove, and none to suspend except for cause, as before shown ; and it is manifest that the spirit of the statute forbids the attempt to exercise such power by that officer.

The allegations as to the misconduct of a portion of the council contained in the answer, and the insinuations of improper motives made upon the other side in the brief, we do not regard as affecting the question in any way. The court can not, in this case, consider the motives, nor private desires, nor designs, of 'either branch of the city government. We deal with official acts and determine their legal effect, but not with private or unofficial acts. The ordinance gives to the mayor the selection of a person for fire engineer. His position as chief executive officer of the municipal government would suggest that he possesses superior knowledge of the situation and needs of the fire department, and sufficient knowledge of the qualifications necessary to a satisfactory discharge of the duties of fire engineer, and it is not unreasonable to assume that the framers of the ordinance contemplated that all nominations to that office would be made with a purpose of conserving the public good, and that, in the ordinary course of business, the council would be content to apply but one test, viz., that of fitness, to any nomination made for that office, leaving the responsibility of change, if any, where the ordinance seems to have left it, with the mayor. If, in the performance of these duties, any have been governed by improper motives leading to unjustifiable conduct, the parties are not amenable to the court in this case, but to public opinion and to their constituents.

There being no vacancy in the office of fire engineer, June 22, 1886, and no power in the mayor to declare one or to suspend the incumbent, it follows that the action of the mayor in his order of above date, addressed to David D. Tresenrider, was invalid and'without warrant of law, and that the defendant obtained no right nor authority under it. Tresenrider has, therefore, been, from his appointment in June, 1885, and continues to be, the fire engineer of the city of Columbus, and entitled to be recognized as such.

Judgment of ouster against Boyson. and of induction of Tresenrider, as prayed by the relator.


author: Owen, C. J.

text:
    Railway Company v. Spangler.

      Master■ and servant — Negligence of fellow-servant — Power of railroad company to contract against injuries arising from.

    The liability of railroad companies for injuries caused to their servants by the carelessness of other employes who are placed in authority and control over them, is founded upon considerations of public policy, and it is not competent for a railroad company to stipulate with its employes at the time, and as part of their contract of employment, that such liability shall not attach to it.
    Error to the District Court of Lucas county.
    Spangler, the defendant in error, was a brakeman on a freight train of the Lake Shore and Michigan Southern Railway Company. While in the line of his duty he was injured, without his fault, and by reason of the negligence of the conductor of the train. He brought his action for damages for the injury so received. The company alleged for defense, among other things, “ that at the time of the hiring of plaintiff by defendant as a brakeman upon her trains of cars, as in the petition alleged, and as a part of the terms of said hiring, and in consideration thereof, plaintiff entered into an agreement and stipulation in writing with Spangler,” which contained the following stipulation:
    “ Second, that while the company will be responsible to me for the discharge of all its duties and obligations to me, and for any fault or neglect of its own, or of its- board of directors or general officers, which are the proximate cause of injury, yet it will not be responsible to me for the consequences of my own fault or neglect, or that of any other employes of the company, whether they or either of them are superior to me in authority, as conductor, foreman, or’ otherwise or not.” The evidence tended to support this defense.
    • The trial court refused, upon request of'the company, to charge the jury that, “ if the jury find from the testimony that the plaintiff, at the time he was employed by the defendant as a brakeman, executed and delivered to the defendant the stipulation, a copy of which is set out in the answer, and that the same was accepted by the defendant, by and through its proper officer or agent, then the defendant is not liable for the alleged negligence of the conductor complained of in the petition,” assigning as a reason for the refusal that, in the opinion of the court, such stipulation was not binding upon the plaintiff below, it being against public policy.
    A judgment of recovery by Spangler was affirmed on error in the district court.
    This judgment is now sought to be reversed for alleged error in affirming the judgment of the trial court.
    The refusal of the latter court to charge the jury as requested is now assigned for error. Upon the question thus presented the court rests the disposition of the case.

      G. H. Scribner (with whom were Ashley Pond and O. G. Getzendanner), for plaintiff in error.
    The question is not whether a company may contract against liability for its own negligence. It is not claimed that it may, by contract, exempt itself from liability for negligently employing, or keepiug in its service, an incompetent conductor; or for negligently furnishing dangerous or defective machinery ; or for not keeping its roadway in proper repair. But, having exercised due care in all these respects, may it not stipulate against the consequences of negligent acts of a conductor, such as' here complained of?

      "Why not? In many of the states, the conductor is considered a co-serwant of the brakeman for casualties arising solely from the negligence of the conductor. The courts of this state have refused to extend the doctrine making the company liable, beyond the limits of the rule laid down in earlier cases. See the opinion of the court in Pittsburg, etc., Ry. Co. v. Devinney, 17 Ohio St. 197.
    Such a rule is calculated to better protect the public against injuries to merchandise in course of transportation by promoting greater diligence and watchfulness on the part of the brakemen employed upon the'trains.
    There are several authorities which support the proposition here maintained. Mitchell v. Penn. R. Co., 1 Am. L. Reg. 717; Galloway v. Western, etc., R. R. Co., 57 Ga. 512, Western, etc., R. R. Co, v. Bishop, 50 Ga. 465; Western, etc., R. R. Co. v. Strong, 52 Ga. 461; Hendricks v. Western, etc., R. R. Co., 52 Ga. 467.
    Mr. Thompson, in his work on Negligence (vol. 2, p. 1025), and again in 1 Central Law Journal, 465, criticises these cases. His criticism, however, applies only where the company undertakes to stipulate against its own negligence in not providing competent superiors or safe machinery and appliances for the use of the servant. It has no application to a case like the present, where no negligence is charged against the company itself.
    In the case of Roesner v. Hermann, 8 Fed. Rep. 782, it was held by Judge Gresham that an employer could not protect himself by contract with his employe against the consequences of his own negligence in not providing safe and suitable machinery. I do not claim that he can. But this case is criticised by the editor of the Albany Law Journal (24 Alb. L. Jour. 383), who cites the Georgia cases above referred to with approbation, and declares that he has no doubt the decision of Judge Gresham is wrong.
    The question appears to have been thoroughly considered, and determined in accordance with the views here maintained in Griffiths v. Earl of Dudley, L. R. 9 Q. B Div. 357.

      It has been held in New York that “ a contract between a railroad corporation and a gratuitous passenger by which the former is exempted from liability under any circumstances of the negligence of its agents, for an injury to the passenger is not against law or public policy and is valid.” Wells v. N. Y. Cent. R. Co., 24 N. Y. 181; Perkins v. N. Y. Cent. R. Co., 24 N. Y. 196; Bissell v. N. Y. Cent. R. Co., 25 N. Y. 442.
    A like ruling was made in the case of Kinney v. Cent. R. R. Co., 34 N. J. 513. Other cases hold a contrary doctrine.
    The point has never been decided in Ohio. See Cleveland, etc., R. Co. v. Curran, 19 Ohio St. 1. The supreme court of the United. States also declined to express an opinion upon this point in the case of Railway Co. v. Stevens, 95 U. S. 655, 660.
    There is a wide difference between the case of a contract with a passenger, or a shipper of goods, and a contract with an employe upon the trains. In the former case the contract might tend to relax the vigilance of the company and of its employes; while in the latter, a stipulation which would place additional responsibility upon the employe, and require, for his own protection, a close pbservance of the rules of the company and a strict watch upon the conduct of his immediate superior, would tend to promote the safety of passengers and merchandise in transit.

      Joshua B. Seney, for defendant in error.
    It is well established that no agreement can be made between a company and a paying passenger that will exempt the company from liability to such passenger for the negligence of its employe. Cleveland, P. & A. R. Co. v. Curran, 19 Ohio St. 1; Wells v. New York Central R. Co., 24 N. Y. 193; Smith v. New York Central R. Co., 24 N. Y. 231.
    So if a railroad company undertakes to convey a passenger without compensation, if the passenger is injured by the negligence of the company, it is liable in the absence of an express agreement exempting it. Nolton v. Western

      Railroad, Corporation, 15 N. Y. 444; Philadelphia & Reading R. Co. v. Derby, 14 How. (U. S.) 468; Gillenwater v. Madison & I. R. Co., 5 Ind. 340; Wilton v. Middlesex R. Co., 107 Mass. 108; Blair v. Erie Railway Co., 66 N. Y. 313.
    But respectable courts have held that a railroad company may make a contract with a non-paying passenger, exempting itself from negligence. Wells v. New York Cent. R. Co., 24 N. Y. 181; Perkins v. New York Cent. R. Co., 24 N. Y. 196; Kinney v. Central R. Co., 34 N. J. 513; Bissell v. New York Cent. R. Co., 25 N. Y. 448. But see Jacobus v. St. Paul & Chicago R. Co., 20 Minn. 125.
    This question of public policy was considered in the following cases, but, like the case of Cleveland, P. &. A. R. Co. v. Curran, 19 Ohio St. 1, they arose on what is called drovers’ passes. Penn. R. Co. v. Henderson, 51 Pa. St. 315; Railroad Co. v. Lockwood, 17 Wall. 357; Railroad Co. v. Stevens, 95 U. S. 660; Ohio, etc., R. Co. v. Selby, 47 Ind. 471; Smith v. New York Cent. R. Co., 24 N. Y. 222.
    Public policy does not change with the character of the train and with the character of the persons carried. If pecuniary liability for negligence promotes care in running a passenger train, the same liability will promote care in running a freight train. If such a contract with a passenger endangers the safety of other passengers, will not such a contract with an employe endanger the safety of other employes ?
    Judge Thompson, in his work on Negligence, and also in an article in the Central Law Journal, severely criticises the Georgia cases cited by counsel for plaintiff in error. 2 Thomp. Neg. 1025; 1 Cent. L. Jour. 485.
    Such contracts with employes are void. Roesner v. Hermann, 8 Fed. Rep. 782; Kan Pac. R. Co. v. Peavey, 29 Kan. 169.
    Counsel for plaintiff in error' seem to concede that a company can not contract with its employe against liability for its own negligence. It was held in, Cleveland, C. & C. R. Co. v. Keary, 3 Ohio St 201, that the negligence of a conductor is the negligence of the company itself. That decision has had the force and effect of positive law in this state for more than thirty years — it has been followed by many of the states of the Union — and it has received the approval of the highest tribunal of the land. Chicago, M. & St. P. R. Co. v. Ross, 112 U. S. 377. In the states where the conductor is regarded as the fellow servant of the brakeman, and not as the representative of the-company, there is no need of a contract with the brakeman to exempt the company from liability for negligence of the conductor; and the only object of such a contract in this state is to do away with the force and effect of that decision. The court is, in effect, asked to hold that the settled law of Ohio, that a master is to be held responsible for the negligence of his superior servant in injuring the servant whom he has placed under his control, may be repealed by the contract of a railroad company.
   Owen, C. J.

Is it competent for a railway company to

stipulate with its brakemen, at the time, and as part of their contract of employment, that the company shall not be liable for the negligent acts of its conductors ?

Western, etc., R. R. Co. v. Bishop, 50 Ga. 465, is cited, with other decisions of the same court approving and following it, in support of the affirmative of this proposition. In that case it was held that such a contract, so far as it does not waive any criminal neglect of the company, or its principal officers, is a legal contract and binding upon the employe. But McCay, J., speaking for the court, says r “ We do not say that the employer and employe may make any contract; we simply insist that they stand on the same footing as other people. No man may contract contrary to law, or contrary to public policy or good morals, and this is just as true of merchants, lawyers, and doctors, of buyers and sellers, and bailors and bailees, as of employers and employes.” This invites us to inquire whether and to what extent the contract we are dealing with is affected by considerations of public policy. It is maintained on behalf of the company that “ a rule absolving the company from liability to the brakemen for negligence of the conductor, may operate to constitute the brakemen a sort of police; may nduee them to be more watchful, and report to their superiors the delinquencies of the conductor. And if they are unwilling to do this, they, and not the company, should suffer the consequences. A rule of this kind is calculated, also, to better protect the public against injuries to merchandise in course of transportation, by promoting greater diligence and watchfulness on the part of the brakemen employed upon the trains.”

Also that “ a stipulation which would place additional responsibility upon the employe, and require for his own protection, a close observance of the rules of the company, and a strict watch upon the conduct of his immediate superior, would tend to promote the safety of passengers and merchandise in transit.”

If this view is tenable, it follows that public policy is concerned in and subserved by such a contract as is here sought to be enforced. As brakeman on the train, Spangler was subject to the orders and control of the conductor.

In Little Miami Railroad Co. v. Stevens, 20 Ohio, 415, it was first held, though by a divided court, that a railroad company is liable to an employe for an injury received through the negligence of another employe under whose control he is placed.

This principle was again considered in Cleveland, C. & C. R. Co. v. Keary, 3 Ohio St. 202, and was applied by a unanimous court to a case like the one at bar, and the railroad company was held liable to a brakeman for an injury resulting to him from the carelessness of a conductor under whose control he had been plaged by the company.

In the course of an able and exhaustive opinion, Ranney, J., says: “ The servants employed to execute can not recover for injuries arising from a failure in that part of the business committed to them, because it is their failure, and not that of their employer; and although it should happen from the negligence of but one of them, yet each one entered the common service with a knowledge that others must be engaged, and they were jointly bound to perform what was jointly intrusted to them, and public policy may be concerned in their keeping a supervision over each other for the purpose. But how this can be made to extend to the conductor, over whose acts they have no supervision Or control, and are not presumed to be possessed of the requisite intelligence for the purpose, we are wholly unable to see; and equally so, how the safety of travelers is likely to be jeopardized by adding to the reponsibility of the conductor for his carelessness, that of the company that places him in power. ... It is the duty of the servants to obey the orders of the superior thus placed over them, and to perform as he shall direct. . . . But they can not be made to bear losses arising from carelessness in conducting the train, over which their employer gave them no power or control, either separately or collectively, until we are prepared to say that justice and public policy require the consequences of duty omitted by one party to be visited upon the other, although stripped of all power to prevent such consequences.”

A careful examination of this case and of Little Miami R. Co. v. Stevens, supra, which it approves and follows, will make it apparent that the liability of railroad companies for injuries to their servants caused by the carelessness of those who are superior in authority and control over them, is placed chiefly upon considerations of public policy.

The doctrine established by these cases has remained unquestioned by this court for more than thirty years. It furnishes a conclusive answer to the contention of the company that the stipulation which it seeks to enforce would bettor protect the public by promoting greater diligence on the part of brakemen and the consequent safety of passengers and merchandise in transit.

We are thus relieved of all discussion of the relation which the liability of railroad companies for injuries to their servants caused by the negligence .of their superiors in authority sustains to the policy of the state. It is the firmly established policy of our law that such liability should attach. It follows that even Western, etc., R. R. Co. v. Bishop, supra, which is the strongest authority cited by the company in support of its position, fails to support the view contended for. As -we have seen, that case expressly declares that contracts contravening public policy will not be enforced. The policy of our law being well settled, it only remains for us to inquire whether railroad companies may ignore or contravene that policy by private compact with their employes, stipulating that they shall not be held to a liability for the negligence of their servants which public policy demands should attach to them. The answer is obvious. Such liability is not created for the protection of the employes simply, but has its reason and foundation in a public necessity and policy which should not be asked to yield or surrender to mere private interests and agreements. The trial court was right in refusing the instruction requested.

Judgment affirmed.


author: By the Court.

text:
    City of Columbus v. Sohl.

      Municipal corporations — Assessments—Estoppel by petitioning Jor improvement — Agency.
    An assessment made by the city of Columbus upon the property of an owner abutting upon North High street, who petitioned for the improvement, under the act of March 30, 1875 (and which was held to be unconstitutional in State ex rel. v. Mitchell, 31 Ohio St. 592), is not invalid, although it appeal's that some of the names, representing owners whose frontage was necessary to constitute the two-thirds, of the frontage upon the street, required by the act as authority for ordering the improvement, were signed to the petition, not by themselves, but by persons assuming to act for them, where it further appears that there was no fraud in the matter, and that the agency was subsequently ratified by each owner, be- ■ fore the city directed the work to be done and issued its bonds for the cost of the improvement, and this is so where, under like circumstances, • the agent signed his own name for that of the principal.
    Error to the Circuit Court of Erankliu county.

      This case is one of a class that was before this court in Tone v. Columbus, 39 Ohio St. 281. It was brought to enjoin the collection of an assessment that had been made upon certain property of Sohl fronting upon North High street, Columbus, the assessment having been made for the improvement of the street under the provisions of an act passed March 30, 1875 (72 Ohio L. 153). This act was held invalid in The State ex rel. v. Mitchell, 31 Ohio St. 592, but notwithstanding its invalidity, the court then also held, that when the abnttiug lot-owners had caused a street to be improved under the act, and the bonds of the city to be negotiated to . pay for the improvement, all who had participated in causing the improvement to be made were estopped from denying the validity of an assesment, made in accordance with the act, to pay such bonds.
    After the decision in the Tone case, issues were made up in the courts below, upon wdiich it, with others, including the present one, was referred to a master with directions to take the evidence and report his conclusions of law and fact separately to the court. Upon the issues as made, the principal question was as to whether two-thirds of the owners of the frontage upon the street had petitioned the council of the city for the benefits of the act before the passage of the ordinance ordering the improvement to be made, and the issuing of the bonds of the city in payment of the same; and this turned upon'the further question, as to whether an agent could act for an owner in petitioning for the improvement; and if so, whether in such case the petition could be signed by the agent without indicating his agency on the petition; and also, whether a subsequent ratification by an owner should be held as equivalent to a previous authority, when done before the improvement was ordered and the issuing of the bonds of the city. In all such cases the master held, upon the facts reported by him, and about which there is no dispute, that the owners should be counted as petitioners, and that, including owners who had so signed, by agent, the requisite ownership of the frontage upon the street had been obtained to warrant the assessment made on the property of the defendant in error for the cost of .the improvement. The circuit court reversed the conclusions of the master in this regard and rendered judgment for the defendant in error.
    This proceeding is prosecuted to reverse the judgment of the circuit court.and for judgment upon the facts as found for the plaintiff in error.

      James Caren, city solicitor, C. T. Clark, and Jones $ Jones, for plaintiff in error.

      R, P Woodruff, L. & W. H. English, and J. Wm. Baldwin, for defendant in error.
   By the Court.

We think the judgment of the circuit court in this case should be reversed and judgment rendered in favor of the city. The defendant in error, Sohl, petitioned for the benefits of the act, the making of the improvement under its provisions, and thereby, with the others acting with him, induced the city to negotiate its bonds to pay for the improvement. The general principles of estoppel were applied to this aspect of the .ease, in State ex rel. v. Mitchell, 31 Ohio St. 592.

But it is claimed that two-thirds of the ownership of the frontage upon the street had not been obtained prior to the passage of the ordinance authorizing the improvement to be made, and that, therefore, the defendant is not liable.

This claim is based upon the decision in Tone v. Columbus, 39 Ohio St. 281. The master'found upon the testimony taken before him that the requisite two-thirds of the frontage had been obtained. The facts as to each contested petitioner, and the amount of his frontage, were found and reported by him, so that it is not necessary to review the evidence as to the question whether the requiste ownership of the frontage had been obtained or not, so far as it is confined to the facts so found and reported by the master, and not modified by the court. For it will be found, upon analysis, that the modifications made by the court, in the'findings of the master, were in his conclusions of law and not in his findings of fact as to .each contested petitioner. It was found that in a number of cases the petition had been signed, not by the owner, but by some one for him as agent, aud in some- cases the name of the agent only was signed to the petition. But in all these cases, where the master found the owner to have been a petitioner, he also found, as a fact, either that the agent was authorized to act for the owner as principal, or that the owner subsequently ratified the act before the improvement was ordered and the city negotiated its bonds. We see no good reason why, in this case, an owner may not have acted by his agent as well as by himself. It was not a question of jurisdiction! The law was invalid, and no authority was derived from it, for the making of the improvement, beyond the extent to which it had been adopted by all concerned as a scheme for improving North High street. Its provisions simply furnished the terms of an agreement among the concurring property holders, and the basis of a commission from them to the agencies of the city for the.improvement of the street; and the rights and liabilities of all parties, including the city, are to be determined by the law of contract and agency, aud not by any statutory powers that may have been intended to be conferred by the legislature; for the act being invalid could confer none. So-that, it is not material in this view-of the case whether two-thirds of the frontage had been obtained before or after the passage of the ordinance, so that it was obtained without fraud or imposition upon the property owners before the work was directed to be done for which the-city issued its bonds.

We do not regard this as conflicting with any thing held and determined in the Tone case. It was presented upon a demurrer to the petition, that charged fraud and bad faith upon the part of the city and many of the petitioners, and averred -that, as' a matter of fact, two-thirds of the ownership of the frontage upon the street had not been obtained; and upon these facts the court held the plaintiff entitled to relief and that the demurrer should be overruled. This is entirely consistent with what we have said. The power to direct the improvement to be made and to make an assessment being referred to a voluntary agency, conferred by the property owners upon the city, must derive its validity from what is done in the execution of the agency, and not from any supposed jurisdiction conferred on the city by the statute in question, that could only have attached to a given state of facts, required to exist at the time the so-called ordinance was p assed, and could not have been helped by any subsequent facts, prior to the order for the improvement of the street and the issuing of its bonds by the city.

All the charges of fraud and bad faith on the part of the city, or of any of the petitioners, are negatived by the findings of the master, and the findings in this regard of the master are adopted by the court as part of its findings of fact. And from what has been said, it appears, as we think, that the master was clearly right in concluding from the facts found by him, and not modified by tbe court, that ail excess of two-thirds of the ownership of the frontage had petitioned for the improvement before it was ordered to be made.

The judgment of the circuit court is reversed at the costs of the defendant in error, and judgment is rendered for the city dismissing the action of the plaintiff below at his costs.


text:
    City of Columbus v. Slyh.

      Municipal corporations — Assessments—Estoppel by participating in election of improvement commissioners.

    Error to the Circuit Court of Franklin county.

      James Caren, city solicitor, C. T. Clark and Jones $ Jones, for plaintiffs in error.

      David Stalter, for defendant in error.
   By the Court.

This aiso was a suit brought by the defendant in error to restrain the collection of an assessment made upon ]iis property for the improvement of North High street, Columbus, under the act of March 30, 1875. (See City of Columbus v. Sohl, ante p. 480.) The defendant in error purchased the property of one, Trip, who did not petition for the improvement, but is found to have participated in the election of the commissioners, and afterward united with a number of others in a remonstrance against the improvement made to the council on August 9, 1875. We perceive no essential difference between petitioning for the improvement and participating in the election of commisoners to carry the plan into execution. If commissioners had not been selected the scheme would have failed; so that those who participated in the election of commissioners promoted the improvement under the law as much as those who petitioned for it in the first instance.

. Nor do we see how the subsequent remonstrance of Trip against the improvement should relieve him from the liability incurred by participating in the election of commissioners. Upon their selection, as provided in the act, the supervision and construction of the improvement devolved upon the commissioners; and we fail to find in the statute any provision by which the city or its council could, after that, have arrested the doing of the work. The agency of the city ended with authorizing the election of commissioners and the 'selection of officers for holding the election. Afterward it became the duty of its engineer to furnish proper grades and lines and of its mayor to issue bonds as the commissioners might require to meet the expense of the improvement. These duties were of a passive nature, and gave to the city.itself no more control over the prosecution'of the work than was possessed by any one of its citizens. So that the remonstrance of the defendant to the city council against the improvement, after the election of the commissioners, was of no more avail to him than if it had been made to some third person.

The case is distinguished from Hays v. Jones, 27 Ohio St. 218. There one of the land-owners who had petitioned for the improvement, with others, signed a remonstrance before the petition had been acted on by the commissioners of the county; and this the court held he could do; not that he could do so after the order for the improvement had been made.

As Slyh stands in the shoes of his grantor, Trip, the judgment as to him must be reversed and judgment rendered for the'defendants below.


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    City of Columbus v. Agler.

      Municipal corporations — Assessments.
    Error to the Circuit Court of Franklin county.
    This case also arose out of the improvement of North High strSet, Columbus, under the invalid act of March 30, 1875 (72 Ohio L. 153). The facts distinguishing it from the case of City of Columbus v. Sohl, ante, p. 480, are stated in the opinion.

      James Caren, city solicitor, Jones § Jones, and C. T. Clark, for plaintiff in error.

      L. English, for defendant in error.
   By the Court.

The finding of the court in this ease

is that Mary J. Agler was not a petitioner, and that she remained silent until the improvement was made and the bonds of the city for the payment of the same had been negotiated; yet that she had knowledge that the improvement was being made at the time thereof. It is also found that her property was benefited by the improvement to the extent of four dollars per front foot, and no more. We think the judgment in this case should be affirmed. The act under which the proceedings forthc improvement were had was invalid, as held in State ex rel. v. Mitchell, 31 Ohio St. 592, and she was in no way a promoter of the same. There is nothing in her case to distinguish it from the decision in Wright, Treas., v. Thomas, 26 Ohio St. 346. Neither the city, in causing the work to be done, nor the contractor in doing it, were trespassers as to her, although the proceedings were invalid. The title to the street was in the city, and not in her. Its improvement-was no injury to her, and she could not prevent it by any proceeding she could adopt, as she might have done had it been an improvement upon her own land. She was not called on to do any thing until-steps were taken to make the assessment upon her property. This distinguishes the case from Kellogg v Ely, 15 Ohio St. 64, and similar cases.

Judgment affirmed.


text:
    Patterson v. Lamson.

      Trial — Findings of fact — Section 455, Revised StatuUs, construed. '

    The finding of facts required on the reservation of a cause by section 455 of the Revised Statutes, as amended April 18, 1883 (80 Ohio L. 169), is a positive finding in which a final judgment may be rendered, and not a provisional one. *
    Reserved iu the District Court of Cuyahoga county.

      T. JS. Burton, for plaintiff in error.

      Caskey Calhoun, for defendant iu error.
   By the Court.

The suit below was brought by the plaintiff to quiet title to a piece of land, and was appealed to the district court of the county.

The second defense of the answer set up new matter, to which the plaintiff demurred, and the court, on motion of the defendants, reserved the cause for decision in this court; and, “for the purpose of the hearing upon demurrer only,” found all the allegations of the second defense to be true, and stated the questions of law arising thereon. It is also stated in the finding that “ no testimony was offered upon the hearing of the cause” by either side as to the averments of the second.defense; and that “the plaintiff asks that, in case said demurrer be overruled, his right to file a reply to said second defense, and to contest the averments thereof by testimony, be reserved to him.”

Held, that this is not such a finding as was recognized by the statute then in force, section 455 Revised Statutes, as amended April 18, 1888 (80 Ohio L. 169); that it required a positive, and not a provisional, findiug of facts, upon which a final judgment might be rendered. The finding as made being a provisional one, the questions arising thereon may or may not be material to a determination of the case. The plaintiff may, by his reply, controvert some or all of the material allegations of the defense, and it may fail for want of proof upon the trial, so that a determination of the questions of law arising upon its averments would be a fruitless one, so far as the litigation between the pai’ties is concerned.

The cause is therefore stricken from the docket of this court, and the papers ordered to be returned to the circuit court of the county, to be there proceeded in -as-if no order of reservation had been made, and the cause had continued upon the docket of the district court, and its successor, the circuit court, of the county.


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    The State ex rel. Graham v. Holmes, Auditor.

      Publication of exhibit of receipts and expenditures of county officers — ■ Section 852, Revised Statutes, construed.

    Error to tho District Court of Tuscarawas county.
    Mandamus to compel auditor..to issue warrant on treasurer.

      T. D. Helea and James Patrick, Jr., $ Son, for plaintiff in error.

      11. T. Stockwell, for defendant in error.
   By the Court.

In compliance with section 852, Revised Statutes, the county commissioners of Tuscarawas county, at their regular session iu September, a. d. 1882, examined and compared the accounts and vouchers of the auditor and treasurer of the county, counted the funds in the treasury, and assumed to direct Abraham R. Holmes, the auditor, to publish an exhibit of the receipts and expenditures for the year then past, in certain newspapers, and among them in the “ Tuscarawas Chronicle,” a newspaper of which the relator, James E. Graham, then was the owner and publisher. The auditor, although thus directed, did not at any time, or in any manner, contract with, request, or authorize the relator to publish said exhibit in-his newspaper, but caused such publication to be made in two other newspapers of opposite politics, and also in one German newspaper, that were printed and of general circulation in Tuscarawas county.

The relator published said exhibit in the “ Tuscarawas Chronicle,” and his claim for so publishing was allowed by the county commissioners, and for the payment thereof, they ordered the auditorio issue a warrant, iu behalf of the relator, on the treasurer of the county. Upon the auditor’s refusal to comply with the order, a proceeding in mandamus was commenced to compel him so to do. To the petition for mandamus an answer was filed by the auditor; a demurrer to the answer was overruled by the court of common pleas, and such ruling was sustained by the district court.

Held, that the law conferred upon the auditor, and not upon the county commissioners, the power and authority to select the newspapers in which said exhibit may be publishéd.

Judgment affirmed.


author: Dickman, J.

text:
    Castle v. Rickly.

      Promissory notes — Signature of stranger on bade of note — Guaranty.

      A promissory note payable to M., or order, was delivered to the payee, who indorsed it in blank, and offered it to R. in part payment for property purchased. R. declined to take it without the signature thereon of C., a stranger to the note. C. thereupon, before the maturity of the note, and to give it credit, signed his name under the indorsement of the payee, and the note was then taken by R. Held, that C. was an unconditional guarantor, and that the owner and holder of the note has a prima facie right of recovery against'him, without proof of demand and notice.
    Error to the District Court of Franklin county.

      J. T. Holmes, for plaintiff' in error.
    Castle was not a.“ stranger ” to the paper in the ordinary sense of the term or within the definitions of a stranger to negotiable instruments.
    He is in the chain of title; a regular indorser after the payee; a party to the paper.
    If Matheny had not written a waiver over his name which was, possibly, sufficient to waive demand and notice, he would, unquestionably, have been entitled to demand and notice.
    • If Rickly had indorsed and transferred before due, he would have been discharged without demand and notice.

      ■ Castle indorsed after Matheny, the payee, in point of order and of time, and both indorsements were after the paper was regularly launched upon the commercial world-2 Dan. Neg. Inst., sec. 1757.
    Castle appears on the paper and by the evidence as the link in the chain of title between Matheny and Rickly — a pure indorser — without a syllable of evidence to vary the contract liability, on his part, of an indorser. 1 Dan. Neg, Inst., secs. 707-7076.
    Two things are established: 1. That Castle waived nothing, either when he indorsed the paper or afterward. 2. That his agreement to pay was conditional only.
    If the plaintiff in error was not entitled to notice of demand and non-payment of the paper in question, then demand and non-payment, and notice thereof, are not necessary to fix the liability on commercial paper of any indorser after the payee, because, upon the theory of the other side, they are all “ absolute, unconditional guarantors.” This is certainly overturning well-settled rules..
    See, as bearing upon the subject, Champion v. Griffith, 13 Ohio, 228; Clay v. Edgerton, 19 Ohio St. 549; Greene v. Dodge, 2 Ohio, 431; Parker v. Riddle, 11 Ohio, 102; Robinson v. Abell, 17 Ohio, 36; Greenough v. Smead, 3 Ohio St. 416.

      JE. L. De Witt, for defendants in error.
    The averments of the petition made Castle, at least, prima facie, a guarantor. “ The mere indorsement upon a note of a stranger’s name in blank is prima facie evidence of guaranty.” Champion v. Griffith, 13 Ohio, 228; Robinson v. Abell, 17 Ohio, 43; Greenough v. Smead, 3 Ohio St. 415, 418; 2 Par. N. & B. 120, n. e, 124, n. p.
    There is nothing in either the answer of the defendant, Castle, or in the evidence, to negative the claim that Castle was a guarantor.
    Rickey was not required to give Castle notice of demand and non-payment. Clay v. Edgerton, 19 Ohio St. 549.
    Castle was a stranger to the paper. He indorsed it in blank long after its execution. Prima facie he was a guarantor. There were no conditions attached to his guaranty. It is impossible to make a guaranty more unconditional than when no conditions whatever are attached. It was certainly as absolute and unconditional as if he had written over his name the -words, “ I guarantee the payment of the within note.”
    The court of common pleas erred in its charge as to the necessity of notice of demand and non-payment. The liability of an indorser is conditional upon receiving prompt notice of demand and non-payment. This is not so as to a guarantor. While a conditional guarantor may be entitled to notice within a reasonable time, yet for want of such notice he is only discharged-to the extent of the loss he may have suffered; and he must set it up as a defense. Bashford v. Shaw, 4 Ohio St. 262, 268. “ Delay to give the notice affords the guarantor no defense, if in fact he could not have been injured by the delay.” Wolfe v. Brown, 5 Ohio St. 304, 306; Forest v. Stewart, 14 Ohio St. 249; 2 Dan. Neg. Inst., sec. 1754; Perry v. Barrett, 18 Mo. 140.
    In Greene v. Dodge, 2 Ohio, 431, the court held the guarauty to be “in its very nature conditional.” This distinguishes the case from Clay v. Edgerton.

      Parker v. Riddle, 11 Ohio, 102, is, in effect, so far as this case is concerned, overruled by Clay v. Edgerton.

      Robinson v. Abell, 17 Ohio, 36, turned upon the liability of an indorser as maker.
    I am unable to see that Greenough v. Smead, 3 Ohio St. 416, has any bearing upon this ease.
   Dickman, J.

On the 18th day of November, 1872, George W. Griffith, for value received, made his two promissory notes' of that date, for $156 each, to Jacob Matheny or order, payable respectively in three and four years after date, with interest from date, payable annually. Both notes bore the indorsement: “ Protest waived- J. S. Matheny, G. F. Castle.” Matheny, and Castle, the plaintiff in error, purchased a house and lot in Columbus, Ohio, of Samuel S. Rickly, one of the defendants in error, and these notes were transferred to him as part of the purchase-money. Upon non-payment of the notes by the maker at maturity, an action was brought by Rickly on each note against Griffith, Matheny, and Castle, in the court of common pleas for Franklin county, but the two cases were consolidated, and Griffith and Matheny being in default for demurrer or answer, the ease as consolidated was tried on the issues made by an amended petition and the answer of Castle thereto- The notes were taken by Rickly several days after they were executed and delivered to the payee, to wit, about December 10, 1872. Although the payee had indorsed them, Rickly before taking them, required, for additional security, that Castle should also^put his name on the back thereof. Castle accordingly, and before the notes had matured, signed his name thereon under that of the payee; the notes were then delivered to Rickly, and the real estate transaction was consummated. On the trial in the common pleas, evidence was offiered by the defendant tending to show that the words “ protest waived ” were put on the notes by Matheny, some considerable time after their delivery to Rickly as part payment for the real estate, and that Castle had no knowledge thereof until after the original action was brought.

Among other things, the court charged the jury as follows :

1st. “The instruments sued-on in this action are not foreign notes, but are inland notes, . . . but it was necessary, at maturity, to demand payment of the maker, and on his failure to promptly pay the same, to give immediate notice of such demand and dishonor to the indorsers, unless demand and notice of such non-payment had been waived.”

2d. “But, whether he” (the defendant, Castle) “was indorser or guarantor, the nature of his undertaking was such that he was entitled to have notice of demand and non-payment of said notes, the same as if he was a mere indorser; and if no such notice was given to him, the plaintiff' can not recover, unless you should find, from the evidence, that the words protest waived ’ were on said notes at the time the said Castle indorsed them, or that they were subsequently placed there by his authority.”

But the court refused to give the following in charge to the jury, as requested by the plaintiff, to wit:

“If you should find, from the evidence, that the said Castle did not indorse said notes, by writing his name on the back thereof, under the words ‘ protest waived, ’ or at the same time, and as part of the same transaction, he did not write, or there was not written over his name the words ■ protest waived; ’ yet, if you should find, from the evidence, that the said Castle indorsed said notes, by writing his name upon the back thereof, in blank, after the execution of said notes, and that the said Castle was not an original party to the notes, but a stranger, this would constitute an absolute and unconditional guaranty of said notes by the said Castle; and the said Castle, having made no defense to said guaranty, he would be liable, as guarantor of said notes, without notice to him of demand and non-payment, or protest, and your verdict must then be for the plaintiff, finding the amount due the plaintiff from said defendant, Castle, on said notes.”

To which charge and refusal to charge the plaintiff at the time excepted. A verdict was -returned in favor of Castle. A motion for á new trial being overruled, judgment was entered on the verdict, and a bill of exceptions, embodying all the evidence adduced on the trial, was allowed and made part of the record. The district court reversed the judgment of the common pleas, for error in its charge, and refusal to charge the jury as requested, and remanded the cause for a new trial. This proceeding is instituted to reverse the judgment of the district court.

It is not claimed that the plaintiff in error ever had notice of any demand of payment on the maker of the paper in question and of its dishonor. The jury was doubtless satisfied that Castle had not expressly waived demand and notice; that he had not adopted the words of waiver put on the note by Matheny. From the charge of the court and its refusal to charge as requested, the jury could not but find that Castle had the rights of an indorser, and was entitled to have notice of demand and non-payment of the notes, and that the plaintiff upon his failure to give such notice could not recover. The question therefore arises, whether Castle is tobe regarded as an indorser of negotiable paper, with the liabilities and rights incident to such an .engagement, or a guarantor, whose guaranty was of ouch nature as to render it unnecessary to prove either demand or notice in order to make out a prima facie case for'recovery.

We are of opinion that the plaintiff in error was such a guarantor. It was held in Champion v. Griffith, 13 Ohio, 228, and afterward approved in Robinson v. Abell, 17 Ohio, 36, that the mere indorsement upon a note of a stranger’s name in blank is prima facie evideuce of guaranty— there being no proof that his indorsement was made at the time of the making of the note. This presumption, it is true, may be overcome by parol evidence that a different agreement was intended. Oldham v. Broom, 28 Ohio St. 52; Kelley v. Few, 18 Ohio, 441; Bright v. Carpenter, 9 Ohio, 139; Champion v. Griffith, supra; Robinson v. Abell, supra. But the evidence, as disclosed by the record, shows that Castle’s name was not put upon the notes at the time of their' execution or before they were drawn, and so he could not be charged-as an original promisor. He was a stranger to the paper — his name not being thereon — at the time it was first offered to'Rickly in part payment for the real estate. Not then being in the chain of title, having no ownership in the notes, he cpuld not, in the capacity of indorser, vest title thereto in an indorsee. Matheny, the payee, was at the time in possession of and the sole owner of the notes, and was the only person competent as an indorser to enter into the contract implied in the act of indorsement, namely, that he hada good title to the Instruments. As an indorser, lie did not transfer the paper to .Castle, who might in turn indorse it to pass title, but Matheny by indorsement vested title directly in Rickly, with no indorsee intervening. Rickly, however, demanded other security than a recourse to those who were parties to the paper, and therefore required that Castle, a stranger to the paper, should place his name upon its back, and thus add strength and credit to it, and render it more easy of circulation. Castle, in signing his name under that of the payee and indorser, assumed the obligation of a guarantor, and did not contract to pay the notes if dishonored, only upon condition that they would be duly presented for payment at maturity, and due notice would be given to him of the dishonor. The rule as laid down by Judge Story is, that if subsequently to the time when the note is made a party iudorsos it, not being a regular indorsee from or under any of the antecedent parties, he will be deemed a guarantor, if there be a sufficient consideration. Story on Prom. Notes, see. 133.

The guaranty of the plaintiff in error was not dependent on any condition or contingency expressed in or implied from the terms of his contract. In legal effect, it was as absolute and unconditional as if he had written on the back of each note, I guarantee the payment of the within note” — words held in Clay v. Edgerton, 19 Ohio St. 549, to be an absolute and unconditional guaranty, and vrhich rendered it unnecessary to aver or prove either demand or notice, in order to make out a prima facie case for recovery. As said in Neil v. Trustees, etc., 31 Ohio St. 15, “a breach of the agreement of the guarantor results from the nonpayment of the debt.” There being no condition, as regards presentment or notice, implied in the terms of such a guaranty, the guarantor must inquire of his principal, or take notice of his default, at his peril. By such guaranty, the guarantor is not made a party to the note, and his contract, unlike that of an indorser, is governed by the rules of the common law, and not by those peculiar to the law merchant. “It is an undertaking to do a certain thing in a certain specific event. The event is a default in the payment of the bill or note by the parties. When this happens, the liability of the guarantor,.by the terms of his guaranty, is complete.” Story on Prom. Notes (7th ed.) 628, note by Thorndike. In accordance with the aforegoing considerations, we are of opinion that the judgment of the district court should be affirmed.

Judgment accordingly.