author: Minshall, J.

text:
    Saxton v. Seiberling.

      Fraudulent Purchaser at Assignee’s Salé — Conveyance to, may be set aside — How—Proper jurisdiction in which to proceed — Agreement to abstain from bidding — When renders sale fraudulent.

    1. An agreement between one who becomes a purchaser at the sale of an assignee, and a third person, whereby the latter is for a consideration to abstain from bidding, is, when carried out and the purchaser thereby gets the property for less than he otherwise would, a fraud on the creditors ; and a conveyance thereunder may be set aside at the suit of the creditors, or of one or more suing for the benefit of all, where the as- ' signee, on being requested, refuses to bring the action.
    2. In such case the court of common pleas is the proper jurisdiction in which to commence the action.
    3. Before the conveyance can be set aside the purchaser must be restored to his former condition ; but it is not essential that there should be a tender of any specific amount before tbe commencement of the action. All that is required is that the plaintiff should offer in his petition to pay into court for the use of the defendant, such sum as may be ordered as a condition to granting the relief.
    (Decided November 17, 1891.)
    Error to the Circuit Court of Summit county.
    , Boynton, Hale Sf Horr, Kohler Musser, and B. W. Sadler, for plaintiff in error.
    I. In the first place, the fact is not to be overlooked that neither of the plaintiffs received a dollar of the money that Seiberling paid for the property — at least, it does not appear that they received any of it; and hence the cases that hold, as between vendor and vendee, where the latter would rescind a contract on account of fraud of the vendor he must first tender back the money received, have no application to the ease. A tender is not necessary in a case of this kind, the court having full power to protect the fraudulent purchaser in any order that it may make for a subsequent sale of the property. Dudley et al. v. Little, 2 Ohio 509; Martindale v. Harris, 26 Ohio St. 379; Martin v. Robert, 5 Cush. 126; 3 Pomeroy’s Eq. Jur., sec. 1407; Story’s Eq. Jur., secs. 693 to 696; Kerr on Fraud, 343-4-5; Willard’s Eq. Jur., p. 303, Potter’s ed.; Allerton v. Allerton, 50 N. Y. 670; Lockwood v. Mitchell, 19 Ohio 448; Younglove v. Hackman, 43 Ohio St. 74; Odell v. Burnham, 61 Wis. 562.
    II. It may be contended here, as it was in the circuit court, by counsel upon the other side, that nobody but the assignee can bring the action. This proposition is so ill founded that little need be said in disposing of it. The exact question was made in Dewey v. Moyer, 72 N. Y. 70. See also Sands v. Codwise, 2 J. R. 487; Freeman v. Deming, 3 Sandf. Ch. 327; Seaman v. Stoughton, 3 Barb. Ch. 344; Ft. Stanwix Bank v. Leggett, 51 N. Y. 552; Phelps v. Curts, 80 Ill. 109; First National Bank of Troy v. Cooper, 9 N. B. R. 529.
    III. It is thoroughly established that where a trustee refuses to bring an action to reclaim trust property, the cestui que trust may begin the action therefor, making the trustee, and the debtor parties defendant. Where a board of directors of a corporation refuse to bring an action to reclaim the corporate property, stockholders may maintain an action therefor.

      N. D. Tibiáis and Marvin, Atterholt, Slabaugh Marvin, for defendant in error.
    I. The probate court having exclusive jurisdiction in the matter of assignments for the benefit of creditors, no other court has jurisdiction to set aside a sale of real estate made by order of the probate court and approved by it. Revised Statutes, secs. 6335 et seq. and 6350; Mauarr v. Parrish, 26 Ohio St. 636; Newark Coal Co. v. Upson, 40 Ohio St. 19; Arrowsmith v. Harmoning, 42 Ohio St. 254; Le Grange v. Ward, 2 Ohio 257-261; Weir v. Zane, 3 Ohio 306; Rohrer on Judicial Sales, 289.
    The only remedy open to the creditors or assignee was an application in the probate court to set aside its order confirming the sale, and making an order setting aside the sale as fraudulent. This authority is granted to probate courts under the provisions of law relating to the courts of common pleas. Revised Statutes, sec. 6411. In this mode could the general principles applicable to setting.aside fraudulent sales by the return of the purchase price, placing the parties in statu quo, etc., be applied and carried out.
    II. In any event no one except the assignee can ask to have the sale set aside. This is not a case where a debtor has fraudulently conveyed property, so as to give his creditors the right to have such conveyance set aside. It was a sale by the assignee under order of court to the defendant Seiberling. The assignee made the deed and received the purchase money. If there was any fraud, he is the one who has a right to complain. Kerrison, Assignee, v. Stewart, et al., 93 U. S. 155; Comstock v. Ames, 3 Keyes 357; Beesley v. Hamilton, 5 Ill. 88; Bliss on Code Pleading, par. 58; Buckingham v. Buckingham, 26 Ohio St. 522.
    III. Our next proposition is that before a party can rescind or ask a court to set aside a sale for fraud, as a condition precedent he must tender back or offer to return the purchase price paid for the property, thereby placing the purchaser in statu quo. There can be no doubt as to the correctness of this proposition — it is the general rule. In other words he cannot rescind, while he at the same time ratifies and confirms the sale, by holding on to the proceeds of the alleged fraudulent sale. This principle is well settled. Reed v. McGrew, 5 Ohio St. 376; Brown v. Witter, 10 Ohio 143; Parmlee, Admr., v. Adolph, 28 Ohio St. 10; Mintier v. Mintier, 28 Ohio St. 307; Rosenthal v. Mayhew, 33 Ohio St. 165; Parsons on Contracts, 679 and 680,- vol. 2,-5 ed.; Yeoman v. Lasley, 40 Ohio St. 190; Taft v. Wildman, 15 Ohio 128; Kerr on Fraud and Mistake, ed. of 1872, pp. 335, 343, 344 and 345; Gardner v. Ogden, 22 N. Y. 327; Dudley v. Little, 2 Ohio 504; Farquhar v. Iles, (La.) 2 So. 791; Am. Dig. 1887, 1283, par. 13; Herman v. Haffineger, 54 Cal. 161; Gifford v. Carville, 29 Cal. 589, 593; Bird’s Appeal, 91 Pa. 70; Bartlett v. Drake, 100 Mass. 174; Miller v. Woods, 21 Ohio St. 485; Williamson v. Moore, 2 Dis. 30; Waite’s Ac. and Def., 5, 508-9-10; Pollock on Contracts, 511, note 2; Bishop on Contracts, 681; Benj. on Sales, par. 452, notes; Concord Bank v. Gregg, 14 N. H. 331; Nanahan v. Noyes, 52 N. H. 232; Spencer v. St. Clair, 57 N. H. 9; Grymes v. Sanders, 93 U. S. 55; Higby v. Whittaker, 8 Ohio 202.
   Minshall, J.

The plaintiffs, as creditors of the assign- or, an insolvent corporation, brought suit in the court of common pleas on behalf of themselves and the other creditors, against the purchaser at the sale of the assignee, to set aside the conveyance of certain real estate thereunder, on the ground of a fraudulent combination between the purchaser and a third person, to prevent competition at the sale. The suit was commenced on November 25, 1882, the conveyance having been made on July 7, 1880. The cause having been heard and determined in the common pleas, was appealed to the district court, then in existence, and was afterwards transferred to the circuit court, where, on leave of the court, November 1, 1886, the plaintiffs filed a “ second amended petition.” The defendant, Seiberling, demurred to this petition on the ground that it does not state facts sufficient to constitute a cause of action. The court sustained the demurrer and dismissed the action. The petition, as amended, states in substance the following facts :

That The J. F. Seiberling Company was a corporation duly Organized under the laws of Ohio ; and engaged in the manufacture of reapers and mowers. That on the 10th of September, 1875, it made an assignment, under, the statute, of all its property for the benefit of its creditors. That in the execution of the trust the assignee offered at public sale, under proper direction of the probate court, certain real estate of the value of about $90,000. That just prior to the sale, the defendant Seiberling entered into an agreement with one A. C. Beldon, who contemplated purchasing the property at the sale, and who would have bid at least $30,000 for the same, by the terms of which he, Seiberling, agreed to loan Beldon the sum of $2,000 for one year, without interest, and convey to him 17 acres of land, if he would refrain from bidding at the sale. The petition further shows that Beldon'kept his agreement — Seiberling bidding off the property for the sum of $25,150, he being the only bidder therefor, with the exception of a nominal bid made by Beldon, at the instance of Seiberling. The petition further stated that on ascertaining the fraud so perpetrated on the ereditors of the company, the assignee was informed of the fact, and requested to bring an action to set aside the sale, and relieve the insolvent estate from the loss and damage consequent upon the fraud. That the assignee refused to bring the action, and that thereupon the plaintiffs, creditors of the company, brought the action below therefor, making the assignee a party defendant. They alleged in their petition that they “ are willing and now offer to pay into court, such sum as the court may find said defendant entitled to, as a condition of setting said sale and conveyance aside.” They then prayed the court to set aside the sale and to restore the creditors to all things lost by reason thereof; and that the court order a re-sale, making such “ order concerning the distribution of the proceeds as should be equitable and just; ” and, further, if it should be held by the court that the plaintiffs were not entitled to the relief prayed for, then that an account might be taken of the amount of loss to them and the other creditors, sustained by reason of the fraud on the part of Seiberling, and that he “ be directed to pay over such sum, with interest from the time of said fraudulent sale, to the assignee, or some other suitable party appointed by the court for the purpose.”

• The error assigned is that the court erred in sustaining the demurrer to the petition as amended.

1. The first point made on the demurrer is that the court had no jurisdiction. It might be a sufficient answer to this to say that a demurrer to the sufficiency of the petition does not raise the question of the jurisdiction of the court. It virtually admits it, by submitting the sufficiency of the pleading to the judgment of the court. Want of jurisdiction is a specific ground of demurrer and should be assigned. § 5062, Revised Statutes. Nevertheless, there can be no question upon the point. The court of common pleas is a court of general jurisdiction. It embraces all matters at law and in equity that are not denied to it. The setting aside of a conveyance, that, for any reason, has been wrongfully obtained, is one of the most common instances in which the court of common pleas interferes to grant relief as a court of equity. The claim that the case is within the exclusive jurisdiction of the probate court, simply because it ordered the deed made upon the confirmation of a sale ordered by it, cannot be admitted. When the deed, made in pursuance of its order, had been executed and delivered, its power over the subject of the sale was at an end; and it had no power whatever to set it aside, in any proceeding, by a decree of its own. The probate court is a court of liihited jurisdiction; it can exercise just such powers as are conferred on it by statute and the constitution of the state, but the setting aside, of a deed of conveyance is not one of the powers so conferred. Spoors v. Coen, 44 Ohio St. 497.

2. The second point is, that no one but the assignee can maintain the action. This is but another form of urging the want of capacity to sue; and, like the former objection, might be disposed of by saying, it is not embraced by the demurrer of the defendant. Want of capacity to sue is a special ground of demurrer, and to be raised in that way, should be specially assigned. We do not overlook the decision in Buckingham v. Buckingham, 36 Ohio St. 68, 78, where it is said: “To warrant a recoveiy on the petition, it must show a cause of action in the plaintiff. If the petition fails to show such cause of action, the objection is not waived by a failure to demur, or to make the objection by answer.” The right of action is one thing, and capacity to maintain it, is another. The right may be in one, or a class of persons, and the capacity to maintain it in another. This is so as to all wards and cestuis que trustent, generally. The cause of action is in the beneficiaries, but the capacity to maintain it is in the trustee; and when want of capacity is relied on by the defendant as an objection to the maintenance of the action by the plaintiff, it should be made by demurrer or answer, and when taken by demurrer it should be specially assigned. § 5062, Revised Statutes. In Buckingham v. Buckingham, the court found and held that there was no cause of action in the plaintiff. The value of the services, for which he sued, had passed to the assignee in bankruptcy, for the benefit of his creditors; so that the plaintiff had neither the right of action in himself nor capacity to maintain it. But we think that if it were properly raised, it is not well taken. The plaintiffs as creditors have a direct interest in the matter. They are the beneficiaries of the trust created by the assignment. And, therefore, as, by the averments of the petition they are quite numerous, and the trustee refuses to bring the action, they, upon well recognized principles of procedure, may bring it for themselves and the other creditors, making the trustee a party defendant, as has been done. Dewey v. Meyer, 72 N. Y. 70, 78, and authorities cited.

3. The next objection is, that the plaintiffs have not tendered to the defendant the purchase price paid for the property. It is undoubtedly true that before a deed can be set aside for fraud on the part of the purchaser, he should be restored to his former condition. But we do not find from an examination of the books and decisions that the plaintiff is required to tender the price paid, or any sum, to the defendant before commencing the action. Such a rule would in many cases, result in a practical denial of justice. The purchase price with interest, may or may not be due the defendant on setting aside the deed. This will depend on a variety of questions — whether there has, b}*- his act or fault, been a deterioration of the property, whether he has received, or should be charged with, rent for its use and occupation, and whether he should be credited with the value of improvements made upon it. These questions can seldom, if ever, be determined without a hearing; and it is a part of the jurisdiction of the court in such suits to settle and determine them preparatory to a just and proper decree. The true rule is accurately stated by Mr. Kerb in his work. on “ Frauds and Mistakes,” p. 305: “The court will not,” he says, “rescind a transaction without requiring the party in whose favor it interferes, to restore the party against whom relief is sought, as far as possible, to that which shall be a just situation, with reference to the rights which he held antecedently to the transaction.” And he adds: “ The terms on which a transaction will be rescinded vary with the particular circumstances of the ease.” Therefore it is sufficient if the plaintiff offers, as in this case, “ to pay into court such sum as the court may find the defendant entitled to as a condition of setting the sale and conveyance aside.” An actual tender prior to the suit is not essential. This is so in suits for specific performance, (Pomeroy’s Eq. Jurs., § 1407, and note,) which are closely related to suits for rescission; and, when the ground of rescission is fraud, there is certainly less reason for a rigid rule; as the author of a fraud has never been esteemed as entitled to the tender regard of a court of equity. In Odell v. Burnham, 61 Wis. 562, which was an action by the defrauded grantor against the fraudulent grantee, to the objection that no tender had been made, the court said, “when in an action to set aside a conveyance on the ground of fraud, the plaintiff offers in the complaint to return the money paid therefor, it cannot be objected on demurrer that the plaintiff did not, before bringing the action tender back the money. The court can protect the rights of all parties.” This seems to be the reasonable and the just rule. See also Dudley v. Little, 2 Ohio 509, which was a suit brought to set aside a sale for taxes, without .an allegation of a tender of the taxes paid. The fraud was of the same character as that alleged in this petition — collusion among purchasers to prevent competition in bidding. The court found the fraud, and said: “ The complainants are entitled to a decree. They must take it, however, on the condition of refunding the purchase money and interest with penalty of 50 per cent, allowed bjr law and on the payment of costs.”

The defendant claims, however, that, in justice to him, the amount should be tendered, or a definite sum offered, that he may, if he elects, take the sum so tendered or offered, without being put to the expense of a suit. But we do not see that he is deprived of this right by the practice adopted. Pie may, if he desires, consent to the sale being set aside on being refunded his money, in which case the money must be refunded before the relief can be granted. Or he may, if he choose, controvert the fraud, and if upon trial none is found, the case will be dismissed at the plaintiff’s costs. If, however, it should be found against him, he will be in no worse condition than any other litigant who gets cast in a suit. His right, however, to be placed in statu quo will not thereby be affected.

No question is made, and none can be, as to the legal effect of the combination to prevent bidding, alleged in the petition. It was a fraud upon the- creditors, and they have the right, on restoring the defendant to his former condition, to have the sale set aside ; or such other relief as the court in the exercise of a sound discretion,' may award. It might, if that should appear the more equitable, ascertain the difference, in the value of the land and the price paid at the time of the sale, and order a re-sale, unless the difference should be paid the assignee by a day named, making the amount found due the defendant upon an account, a prior lien upon the property, as was done in the common pleas.

Judgment reversed and cause remanded to the circuit court, with directions to overrule the demurrer to the amended petition,, and for further proceedings.


source: Caselaw Access Project

author: D iceman, J.

license: Public Domain

text:
    Judy v. Louderman.

      Sealed instrument — Adequacy of consideration.

      1. In an action by the payee upon a specialty, the defendant, may, under section 5071 of the Revised Statutes, allege the want or failure of consideration, and such allegation will constitute a good ground of defense.
    2. While it is necessary that the consideration of a promise should be of some value, it is sufficient if it be such as could be valuable to the party promising ; and the law will not enter into an inquiry as to the adequacy of the consideration, but will leave the parties to be the sole judges of the benefits to be derived from their contracts, unless the inadequacy of consideration is so gross as of itself to prove fraud or imposition. 3. The plaintiff was the owner and holder of a promissory note for $269.52, signed by J., dated January 18, 1873, payable to the plaintiff or order, in six months after date, for value received, with interest. On the 5th day of October, 1882 — J. then being dead — the plaintiff surrendered the note to’H., the father of J., who, in consideration of such surrender, by a written obligation bearing date of that day, agreed that the plaintiff should be paid from his personal estate, at his decease, the amount of the note, and the sum to be paid was by the terms of the obligation made a charge and advancement to the heirs of J. By reason of the insolvency of the estate of J., the note at the time it was surrendered to H. was deemed uncollectible. .

      Held: That the surrender of the note was a sufficient consideration for the execution and delivery of the written obligation.
    (Decided November 17, 1891.)
    Error to the Circuit Court of Fayette county.
    The original action was commenced by Henry Judy, the plaintiff in error, against the defendant in error, Nathan Louderman, executor of the last will and testament of Henry Louderman, deceased. The following is a copy of the petition filed in the Court of Common Pleas of Fayette county.
    “ Plaintiff says: On the 5th day of October, 1882, he was the owner and holder of a certain promissory note, signed by one J esse Louderman, for the sum of $269.52, dated January 18,1873, due six months after date, with eight per cent, interest from date. On said 5th day of October, 1882, he turned over and surrendered to said Henry Louderman, then in full life, said promissory note, and in consideration therefor, said Henry Louderman executed and delivered to plaintiff, an agreement of which tbe following is a copy, viz. :
    “ New Holland, O., Oct. 5,1882.
    “In consideration of the following described note of my son Jesse Louderman, being turned over to me by Henry Judy, the owner and holder thereof, this day, I agree to pay to the said Henry Judy, from my personal estate at my decease, the sum of $269.52, to be paid by my executor or administrator, as the case may he, and I hereby make this a charge, and advancement, to the heirs of my son, the said Jesse Louderman.
    “ The following is a copy of said note:

      “ ‘ $269.52. Six months after date, I promise to pay to Henry Judy or order, the just and .full sum of two hundred and sixty-nine dollars and fifty-two cents, for value received, this 18th day of January, A. D. 1873, bearing eight per cent, interest from date.
    “ ‘Jesse Louderman.
    “ ‘In witness whereof, I have hereunto set'my hand and seal this 5th day of October, A. D. 1882.
    “ ‘ Henry Louderman. [seal.]
    “ ‘Signed and sealed in our presence this 5th day of October, 1882.
    “ ‘ Witness:
    “‘John Louderman,
    “ ‘ Nathan Louderman.’ ”
    “ Plaintiff further says that the said Henry Louderman died on the-day of-, 188-, and that the said Nathan Louderman is his duly appointed and qualified executor.
    “ That on the-day of-,1885, he presented to the said Nathan Louderman as such executor, the said claim of this plaintiff, on said agreement of Henry Louderman, duly certified as required by law, and asked to have the same allowed, as a valid claim against the estate of said Henry Louderman, deceased. But the said Nathan Louderman, as executor, refused to allow the same, and on the 4th day of April, A. D. 1885, indorsed thereon, his rejection thereof.
    “ There is due to plaintiff by reason of the premises, from the estate of said Henry Louderman, deceased, the sum of $269.52, with interest at six per cent, from April 4, 1885.
    “ Plaintiff therefore asks judgment against said defendant that his said claim be allowed and paid out of the estate of said Henry Louderman, deceased.”
    To this petition there was a general demurrer, which was overruled.
    The defendant thereupon filed the following answer :
    “And. now comes the defendant and answering the plaintiff’s petition, says:
    “ That for many years prior to the date of said pretended written obligation set forth in the petition, the said Jesse Louderman had been dead. That his estate was insolvent, and had long before the making of said pretended agreement, been fully settled, and said note of said Jesse Louderman wras on said 5th of October, 1882, and for years before, had been wholly worthless, all of which was then fully known to said plaintiff. That there was no person who was liable to be or could have been sued thereon, or against whom a judgment could have been rendered thereon, which plaintiff then well knew. That said pretended written obligation was not an instrument required by the laws of Ohio to be sealed. That the alleged and pretended seal attached thereto was simply a pen scrawl which the defendant denies was a seal, or that the said pretended written obligation was a sealed instrument. That gaid Henry Louderman was in no way connected with or liable in any way on said promissory note of said Jesse Louderman either morally, legally or equitably. That said pretended written obligation was and is wholly without consideration, and created no obligation or liability on said Henry Louderman, or his estate. The defendant denies any indebtedness or liability of said estate to pay the same.
    “ The defendant further answering, says: That there is no personal property of said estate which can be applied to the payment of said written obligation. That the just and legal debts of said estate are more than all the personal property. That all the real estate of deceased was specifically devised, and there is no estate or property belonging to said estate with which to pay said written obligation, if it should be held to be a valid instrument.
    “ Wherefore defendant asks to go hence and recover his costs.”
    There was a general demurrer to this answer which was sustained, and the defendant excepted. ' The defendant having failed to make any amendment to his answer, it was adjudged, that the plaintiff, Henry Judy, recover of the defendant the sum of. $278 and costs, to be levied upon the property of the estate coming into his hands as such executor. The circuit court, on petition in error, held that the court of common pleas erred in sustaining the demurrer to the defendant’s answer, reversed the judgment of that court, and remanded the cause for further proceedings.
    To reverse the judgment of the circuit court the present petition in error is filed.

      llidy Patton, for plaintiff in error.
    The consideration alleged in the petition for the execution of the instrument sued on, is the same as that set out in the instrument itself. The facts set forth in the answer, and which in the opinion of the circuit court show a total want of consideration, are not a denial of the allegations of the petition in regard to the consideration, but are pleaded by way of confession and avoidance — that the note of Jesse Louderman which was turned over to said Henry Louder-man was wholly uncollectible. We say that this is immaterial ; that a reply denying these allegations would raise an immaterial issue. The thing Henry Louderman contracted for, and for which he agreed to pay, was the note of Jesse Louderman being turned over to him. This consideration he is conceded by the pleadings to have received. The thing he stipulated for he got. The court cannot be asked to contract for him. He has made his own contract, and if he has received what he contracted for the court will enforce the contract he made. 1 Addison on Contracts, secs. 8, 16.
    Coming now to consider the effect of the seal, we are willing to accept the statement of this question made by the circuit court as a fair one. The opinion concedes that at common law a seal imported, conclusively, a consideration, and at law a party could not dispute it; and that this was the law in Ohio down to February 24, 1884. But it is insisted, as we understand, that the act of that date (1 Curwen, 124) puts specialties on the same footing as simple contracts, in courts of law, and that sec. 93 of the code (Revised Statutes, sec. 5071), has the same effect in this regard as the act of 1834. We might be willing to concede the latter half of the proposition — that sec. 93 of the code has the same effect as the act of 1834, — if we were assured that we agree with the court as to what that effect was. But if it is claimed that the act of 1834 puts specialties on the same footing as to consideration as simple contracts, in courts of law, we deny that effect, both for that act and the code. That the act of 1834 did not, and was not intended to, abrogate all voluntary contracts, and to abolish all distinction between specialties and simple contracts, we think is evident from later Ohio decisions, which recognize their different character. Avery v. Latimer, 14 Ohio 542; Osborn v. Kisler, 35 Ohio St. 99; Revised Statutes, sec. 4.
    As we regard the act of 1834, it was not intended to put sealed instruments on the same footing as simple contracts, as to the requirement of a consideration to support them, but to break down the barrier between legal and equitable defenses, and permit that as a legal defense, which had before been a good equitable defense, to a specialty; not to change the character and effect of the instrument in the least, but to change the course of procedure, and give the same relief in a new form. Allen v. Allen, 40 N. J. L. 446.
    The purpose and effect of the act of 1834, as we interpret it, is fully preserved in section 93 of the code. But the matter set forth must be such as would heretofore have constituted a defense, either at law or in equity; and its sufficiency as a defense is in no measure increased or changed by this section. Dixon v. Caldwell, 15 Ohio St. 412, 415.
    It is a grossly inaccurate statement of the law to say “ that equity always required an actual consideration, and permits .the want of it to be shown notwithstanding the seal.” The truth is that equity recognized the failure of consideration as a defense to a sealed instrument, but never so recognized the want of consideration. 1 Smith’s Leading Case, 749 (8th ed.); Yard v. Patton, 13 Pa. St. 285; Candor's Appeal, 27 Pa. St. 119; Harris v. Harris, 23 Gratt. 737; Shirk v. Endress, 3 W. & S. (Pa.) 255; Allen v. Allen, 40 N. J. L., 446; Carter v. King, 11 S. Car. 125; Harrell v. Watson, 63 N. Car. 454; Walker v. Walker, 13 Ired. (N. Car.) 335; Wing v. Chase, 35 Me. 260; Kennedy v. Howell, 20 Conn. 349.

      We might go still farther than the pleadings in this case require, and say that failure of the consideration for an obligation like the one sued on would not constitute a defense in equity. This is a single obligation for the payment of money, and such have not been regarded as coming within the principles upon which equity grants relief for failure of consideration. Kennedy v. Howell, 20 Conn. 349; Richardson v. Bates, 8 Ohio St. 257.

      Mills Gardner, for defendant in-error.
    I. The petition does not aver or claim a purchase of the promissory note of Jesse Louderman, described in the petition, nor that the same was assigned to Henry Louderman, but that “ being turned over to me by Henry Judy, the owner and holder thereof, I agree,” etc. There was no change of the relation of the parties to the note made, nor of the ownership of the note. Henry Louderman acquired no legal rights in the note. The legal title thereto still remains in Henry Judy. The promise of Henry Louderman to pay at his death was entirely voluntary and in the future. The pretended writing obligatory shows on its face the death of Jesse Louderman, in that he makes the amount “a charge and advancement to the heirs of my son, Jesse Louderman.” The obligation is to advance, at his death, to Henry Judy the amount, to be charged in the settlement of his estate, to the heirs of Jesse. An executory agreement to give to another cannot be enforced, nor an agreement that in the future he will give by way of advancement, cannot be enforced. Such-agreements are void, for want of consideration. 1 Parsons on Contracts, 358, and note h, and cases there cited. Cook v. Bradford, 7 Conn. 57; Mills v. Wyman, 3 Pick. 207; Loomis v. Newhall, 15 Pick. 159; Parker v. Carter, Munf. 273; Hamor v. Moores, Admr., 8 Ohio St. 239; Phipps v. Hope, 16 Ohio St. 586.
    There was no consideration moving from Judy to Louder- - man. It was, if anything, an agreement to pay at his death, by way of advancement to his grandchildren, the debt of their deceased father, for which the estate they might receive from Henry Louderman could not be liable, and for which Henry Louderman was not liable. It is conceded that as a simple contract this would be void, but it is claimed that it is a sealed instrument, a specialty — and therefore so solemn in character that the question of consideration cannot be made — and the estate is estopped by the' seal. A seal does not make a contract valid if it is void without one. 3 Parsons on Contracts, 356 ; 2 Parsons on Contracts, 721; Truett v. Wainwright, 4 Gillman, 411.
    This contract is wholly executory on the part of Henry Louderman. Nothing of value passed from Judy. Nothing by the contract was - vested in him. The contract itself clearly states its terms and conditions. 2 Harmon on Estoppel and Res. Judicata, sec. 576, p. 709; Rhine v. Ellen, 36 Cal. 362; 2 Harmon on Estoppel and Res. Judicata, sec. 580, p. 714; lb., sec. 588, p. 722; Pargetter v. Harris, 7 Q. B. 708; Wheelock v. Henshaw, 19 Pick. 341; Pelletreaw v. Jackson, 11 Wend. 110.
    The seal is not the contract. The stipulations in the paper contain the contract if there is any. If the terms of the paper itself.show no binding contract on the parties, the seal cannot supply the defect. Nor can the seal import any consideration other than is named in the writing. If it is apparent on the face of the paper that there is no valid consideration for the agreement, or that the pretended consideration is not legal, the seal will not prevent a party from taking advantage of it. The agreement of Henry Louderman written in the contract is at most a “ naked possibility,” a future advancement if he left personal estate, without consideration from him or to him, and not enforceable, and void. This the paper itself discloses. The seal gives it no higher character. Nelson v. Bonnhast, Am. Law Reg., old series, vol. 6, 151.
    There is no averment in the petition that Henry Louder-man at his death had personal estate with which to pay said obligation. This defect of the petition the circuit court says was cured by the answer. While not conceding that, we insist that the other defects of the petition were not, and without this, for the reasons before stated, the petition was bad. The petition setting forth the written agreement, stated the consideration, which on its face is not sufficient. The denial of personal property in the answer, or the admission of sufficient property, does not make the otherwise want of averments sufficient.
    II. The policy of the law in Ohio, since as early as 1834, has been to favor any defense, for want of consideration or otherwise, against 'sealed instruments to the same extent as simple contracts. Act of February 24,1834,1 Curwen, 124.
    This act was repealed by the Code of Civil Procedure, for the evident and manifest reason that the same thing was provided for by the code. Sec. 5071, Revised Statutes, which is sec. 93 of the code. 1 Pomeroy, Eq. Jur., sec. 370; Ibid, sec. 383; Blackstone, Com., 2 vol., page 308.
    There is no case to be found that holds want of consideration is not a good defense in equity to a specialty, whatever may be said of legal defenses. The code commissioners never intended to revive “ the times of ignorance ” the law once “ winked at,” which made seals as the signature of illiterate persons so sacred. Dobson v. Pearce, 12 N. Y. 156, 168; Louderman v. Judy, 2 Circuit Court R. of Ohio 358; Case v. Broughton, 11 Wend. 106, 108.
    III. The answer denies that there was any personal property of the estate of Henry Louderman with which to pay said pretended obligation. This obligation, if good at all, is only good to the extent contracted by the maker, nameljq “ from my personal estate.” That was the full extent of the obligation. Judy can ask at most, but “ his pound of flesh.” It cannot be construed into a general debt against the estate, real and personal. If at his death he had no personal estate, there was no obligation to pay. In the administration of estates, the debts of the- decedent are primarily charged to the personal property; never to the real estate unless the personal property is insufficient.
    The personal estate, then, is that which remains after the payment of his debts. And this was the evident intention and understanding of both Louderman and Judy, when the paper was executed, as is manifest by tbe statement in the paper, “ to be paid by my executor and administrator, as the case may be; and I hereby make this a charge and advancement to the heirs of my son, the said Jesse Louderman.” Yery clearly indicating, that.of his personal estate which could go to said heirs on their distributive share, this obligation was to be paid. Nothing could be distributed to them except from such personal property as would remain after the payment of the debts. What was to be paid to Judy, was that to which otherwise the heirs would be entitled. Therefore, the general debts of' the estate were preferred debts to this. This, if paid at all, could only be paid by the terms of' the agreement out of any personal property that might remain for distribution to the heirs, and we think to these particular heirs only. The answer is therefore a complete bar to the recovery of the plaintiff, for it avers there is no personal property with which to pay.
   D iceman, J.

If there was no actual consideration for the obligation executed and delivered to the plaintiff in error, it was competent to prove the want or failure of such consideration notwithstanding a “ scrawl seal ” was attached to the instrument.

By the act of Februarjr 24, 1834, (1 Curwin, 124,) it was provided, “ That in any action founded upon any specialty or written contract for the payment of money or delivery of property, the defendant by special plea, or by notice attached to and filed with the general issue, may allege the want or failure of consideration in the whole or any part thereof.” This act was repealed by the act establishing a Code of Civil Procedure, but section 93 of the code, which is continued in section 5071 of the Revised Statutes, provided that, “ The defendant may set forth in his answer as many grounds of defense, counter-claim and set-off as he may have, whether they be such as have been heretofore denominated legal or equitable, or both.” As against a strictly legal cause of action, a defendant, therefore, may now set up an equitable defense, and thereby not only bar the plaintiffs’ action, but obtain the proper affirmative equitable relief connected with the subject-matter. And although the common law, in requiring a valuable consideration in order to render an agreement valid and binding, declared, in its strictness, that a seal was conclusive evidence of such a consideration, yet, in determining the rights of parties upon equitable principles, a seal has been divested of the apparent sacredness with which it was clothed by the common law, and equity, looking rather to reality than form, does not permit a seal to supply the place of a real consideration, and notwithstanding the seal, will allow the want or failure of such consideration to be shown in the enforcement of executory contracts of every description. In Richardson v. Bates, 8 Ohio St. 264, it was said by Sutliee, J.: “ Under the statute of February 24, 1834, allowing the failure or part failure, of consideration to be given in evidence, in a suit upon a specialty, the facts stated in the answer would have constituted a perfect defense. And the provision of the code, allowing a defendant to set forth in his answer equitable as well as legal grounds of defense, permitted the same defense to be made in this case; and therefore the failure of consideration, stated in the answer, constituted a good defense.”

Conceding then that it was competent to set up a want or failure of consideration as a defense to the original action, the decisive question in the case before us is, whether the written obligation entered into by Henry Louderman was wholly without consideration, or was not founded upon sufficient consideration to support the plaintiff’s action. It is alleged in the answer, that for many years prior to the date of the written obligation described in the petition, Jesse Louderman had been dead; that his estate was insolvent, and long before the making of the obligation, had been fully settled ; and that the note of Jesse Louderman was, on the 5th day of October, 1882, and for years before, had been wholly worthless, all of which, it is alleged, was then fully known to the plaintiff. It is evident, however, that the father did not treat the note of his son as without value, for he stipulated for the payment to the plaintiff out of his personal estate at his decease, of a sum equal to the full amount called for by the note. The motive or inducement operating upon the father seems to have been so controlling, that he was determined upon paying his son’s outstanding nóte, ' though postponing payment until his decease, when it was to be paid out of his personal estate, and the sum paid to be a charge and advancement to the son’s heirs. For aught that appears, there may have been circumstances, best known to the father, which in his estimation rendered his possession of the note a valuable acquisition. And the manifest wish and design of the father to acquire the ownership and possession of the note, obviously tended to enhance the value of the instrument while in the hands of the plaintiff. It cannot well be said, we think, that the chose in action surrendered by the plaintiff was valueless, or was inadequate as a consideration for the execution and delivery of the written obligation, the adequacy or inadequacy of consideration having been left to the free exercise of the judgment of the contracting parties.

It is an elementary principle, that the law will not enter into an inquiry as to the adequacy of the consideration, but will leave the parties to judge of that for themselves. The reason of the rule is succinctly expressed by Alderson, B., in Pilkington v. Scott, 15 M. & W. 657: “ Before the decision in Hitchcock v. Coker,” he says, “ a notion prevailed that the consideration must be adequate to the restraint; that was, in truth, the law making the bargain, instead of leaving the -parties to make' it, and seeing only that it is a reasonable and proper bargain.” It is considered unwise to interfere with the facility of contracting, and the free exercise of the judgment and will of the parties, by not allowing them to be sole judges of the benefits to be derived from their bargains. “It is, indeed, necessary that the consideration should be of some value; but it is suffcient, if it be of slight value only; or even if it be such as could be valuable to the party promising.” 1 Chit. Con., 11th Am. ed., 29, and cases cited.

"When a contract is founded on a transfer of an article of property, the authorities are numerous in illustration of the doctrine, that in determining adequacy of.consideration, the extent of benefit derivable from it is not considered; a value, however small or nominal, if given or stipulated for in good faith, is, in the absence of fraud, sufficient to support an action oñ the contract or promise. “ Thus, the mere surrender and delivery of a letter or other written document which the promisee has a right to beep and retain in his possession, is a sufficient consideration for the promise, although the possession of it may turn out eventually to be of no value in a pecuniary point of view, or no benefit may have resulted to the one party, nor prejudice to the other, from the surrender and delivery of the document.” 1 Ad. Con., 6, 8th ed.

In Haigh v. Brooks, 10 A. & E., 309, 320, the declaration in assumpsit stated that the defendant promised to see certain bills accepted by L. paid at maturity, in consideration that the plaintiffs, at his request, would give up to him a certain guaranty on behalf of L., then held by plaintiffs. It was averred that the. plaintiffs gave up the guaranty, but that the defendant did not perform his promise. There was a plea that the guaranty was a promise to answer for the debt of another, and that there was no agreement in writing, wherein any sufficient consideration was stated according to Stat. 29, Car. 2. It was held, that it appeared on the pleadings that the plaintiffs had delivered something to the defendant, on the faith of his promise, which he at the time considered valuable, and this being so, and no fraud imputed, he could not afterwards excuse a breach of the promise, by alleging that the thing given up was not of the value he had supposed.

Lord Denman, C. J., in delivering the judgment of the court, said: “We are by no means prepared to say that any circumstances short of the imputation of fraud in fact could entitle us to hold that a party was not bound by a promise made upon any consideration which could be valuable; while of its being so, the promise by which it was obtained from the holder of it must always afford some proof.

“Here, whether or not the guaranty could have been available within the doctrine of Wain v. Warlters, (5 East. 10,) the plaintiffs were induced by the defendant’s promise to part with something which they might have kept, and the defendant obtained what he desired by means of that promise. Both being free and able to judge for themselves, how can the defendant be justified in breaking this promise, by discovering afterwards that the thing in consideration of which he gave it did not possess that value which he supposed to belong to it ? It cannot be ascertained that that value was what he most regarded. He may have had other objects and motives; and of their weight he was the only judge.”

As alleged in the original petition, and as stated in the written obligation upon which the action is founded, the consideration of Henry Louderman’s executing and delivering the obligation was the surrendering and turning over to him of the note of his son. The facts constituting the cause of action were admitted by the demurrer to the petition; and in the answer thereto subsequently filed, there was no denial of the allegations in the petition as to the consideration of the written obligation. The answer, in the nature of a confession and avoidance, avers substantially, that the note of Jesse Louderman was, at the time it was surrendered, and for years before had been uncollectible, and that therefore the written obligation was wholly without consideration, and created no valid claim against Henry Louderman or his estate. If, before and at the time the note was surrendered, it was not collectible out of Jesse Louderman’s estate, it would not follpw — for reasons before assigned — that the written obligation was necessarily without consideration. Henry Louderman received from the plaintiff that for which he contracted, and obtained that which, by the terms of the contract, was evidently deemed by the contracting parties an object of value. In contemplation of law, there was, in our view, no want or failure of consideration for the written obligation of Henry Louderman.

It is alleged in the answer of the defendant, “ that the just and legal debts of said estate — of Henry Louderman — are more than all the personal property,” and, “ that all the real estate of the deceased was specifically devised.” Henry Louderman, by his written obligation made the claim of Henry Judy a debt against his estate. It was to be paid out of his personal estate at his decease, by his executor or administrator, as the case might be. What was his personal estate ? Not, as contended, that which would remain after the payment of his debts, and out of which a distributive share would go to the heirs of Jesse Louderman, but, the body of his personal property existing at the time of his death. Tire personal estate is the regular and primary fund for the payment of debts, and this will be first applied until exhausted. And, “ as soon as the executor or administrator shall ascertain that the personal estate in his hands will be insufficient to pay all the debts of the deceased,” it is made his duty, by statute, to apply to the probate court or the court of common pleas for authority to sell the real estate of the deceased. Sec. 6186, Revised Statutes. Where, for a valuable consideration, one promises to pay a debt out of his personal estate at his decease, without a specific limitation to that estate alone, if, at his decease, the personal estate is insufficient to pay the debt, the creditor will not be precluded from resorting to the real estate of the debtor, if any there be. Otherwise, it might be in the power of the debtor, in his lifetime, to convert his personal into real estate, and thus evade his obligations by simply changing the form of his property. Under his written obligation, the personal property of Henry Louderman was made the primary fund for the payment of the plaintiff’s claim; but, if, at his death, his just and lega^ debts exceeded all his personal property, the residue of his estate, if any, was not thereby discharged from the payment of his debt to the plaintiff.

The demurrer to the answer was rightly sustained; and the judgment of the circuit court should be reversed, and that of the court of common pleas affirmed.

Judgment accordingly.


author: Speak, J.

text:
    Trustees v. White et al.

      Poor laws — Paupers—Belief furnished to by physicians — Section 1494, Bevised Statutes, construed.

    Physicians affording relief to a person in condition requiring relief under section 1494, Revised Statutes, which provides that the township shall be liable for relief afforded “ only in such amount as the trustee’s determine to be just and reasonable,” have a claim against the township wherein such relief is afforded for no greater amount than the trustees determine to be just and reasonable. And where the trustees have considered a claim, and, acting in good faith, have rejected it, no action can be maintained against the township.
    (Decided November 17, 1891.)
    Error to the Circuit Court of Lawrence county.
    Action was brought by the defendants in error, physicians and surgeons, against the trustees of Elizabeth township, Lawrence county, to recover for surgical and medical services rendered to one William Cameron, a minor, and an alleged pauper. After a statement of the circumstances of the services rendered, the petition alleged due notice to the trustees before rendering the relief required, a request by one of them that the service be rendered, and due presentation of the claim to the trustees, with request that the same be audited, allowed and ordered paid, which was refused, and the claim rejected. Wherefore, judgment is asked for one hundred and fifty dollars and interest.
    The answer admitted presentation of the bill to the trustees, and their refusal to allow or pay it; It further admitted that Cameron was a minor, and that he was in need of the services of a surgeon, but denied that he was in such destitute circumstances as to require public assistance, because his father, a resident of the township, was able, ready and willing to pay a reasonable compensation for such services. It further alleged malpractice on the part of the' plaintiffs, which resulted in the death of the patient within less than twenty-four hours after his injury.

      The reply denied the new matter of the answer.
    On trial in the common pleas a verdict was rendered for the amount of the bill. A motion for a new trial on the ground, among others, that the verdict was against the law of the case, was overruled, and a judgment was entered on the verdict, which was affirmed by the circuit court. To reverse these judgments, the present" proceeding in error is prosecuted.

      H. Leete, for plaintiff in error.

      ■W. H. Enochs and A. T. Holcomb, for defendants in error.
   Speak, J.

The principal question argued is as to th'e errors alleged in the charge of the court, and in the refusals to charge. We are of opinion that, if the action was maintainable at all, there was no error on the part of the court in those respects. But was the action maintainable?

The plaintiffs asked to recover for services rendered an alleged pauper. Whatever moral duty rests upon the well-to-do to aid those less fortunate, in their distress, there is, aside from the obligations attaching to husband, parent, and guardian, no legal obligation to perform that moral duty, nor to recompense another who may voluntarily render the needed service, nor is there, at common law, any such legal duty imposed upon the community. Clearly, then, the plaintiffs could not recover unless, by statutory authority, a right of action is given. We look, therefore, to the statutes relating to the relief of the poor to determine whether or not, under the allegations of the petition, the action was maintainable.

The general duty of the township to afford relief, is fixed by section 1491, of the Revised Statutes, which reads as follows: “The trustees of each township in the state shall afford, at the expense of their township, public support or relief to all persons therein, who may be in condition requiring the same, subject to the conditions, provisions, and limitations herein.”

Liability for relief voluntarily furnished to paupers was first recognized by statute in the act of May 1, 1865, the fourth section of which provided that “ whenever any person in any township shall be in a condition requiring public relief, complaint thereof shall be forthwith made to the township trustees by some person having knowledge of the fact; and thereupon the township shall be liable for all relief which shall thereafter be afforded to such person; but if such complaint be not made to the township trustees within such time as the same might with reasonable diligence have been done, then said township shall be liable for such relief only as may be furnished after complaint made.” It will be observed that the limit of liability by this statute, in any case where the township was liable at all, was the value of the relief afforded, to be determined, where the claim was disputed, by suit upon the account as for quantum meruit.

Although many changes were made in this statute by amendment, the section quoted was not altered until the statute of April 12, 1876, when, for the first time, the services of physicians and surgeons were in terms included in the statute. The clause as to making complaint was also made more definite by a provision that, if it be not made within three days after the services rendered, or relief given, the township would be liable for that only which might be rendered after complaint made. The limit of liability, however, still remained the value of the service or relief afforded, to be determined as before. And this continued until the adoption of the amendment of February 27, 1878. That amendment imposes the conditions and limitations applicable to services rendered by physicians and surgeons, and is as follows : “ When a person in a township is in condition requiring public relief, or the services of a physician or surgeon, complaint thereof shall be forthwith made to the township trustees, by some person having knowledge of the fact; if medical service is required, the physician or surgeon called or attending shall immediately notify the trustees, or one of them, in writing, that he is attending a pauper, and thereupon the township shall be liable for all relief and for services rendered, which may thereafter be a’fforded to such person, only in such amount as the trustees determine to be just and reasonable ; but if such notice be not given within three days after such relief is afforded, or service begins, then said township shall be liable for such relief or service only, as may be rendered after notice has been given, but the trustees, or one of them, may at any time order the discontinuance of such service or relief, and they shall not be liable for any services or relief thereafter rendered.”

A discretion is here given the trustees. To what does it apply, and what is its extent? As a general rule, discretion entrusted to officers of the law is not reviewable, but this might not obtain under the poor laws where the language of the statute did not clearly import a purpose to make it so. Hence it was held by this court in Trustees v. Ogden, 5 Ohio 23, that under a statute (act of February 12, 1829), which provided that where the township trustees should receive notice from the overseers of the poor that any person, not having a legal settlement in the township, was in condition requiring temporary assistance, they (the trustees) should, if in their opinion such person was in suffering condition, and requiring assistance from the township, direct the overseers to provide such relief. The opinion of the trustees was not final, and any individual who, after notice to the overseers, should furnish necessary relief to such person, could have an action to recover the value of the same against the township. There was no direct provision in the statute authorizing payment of such claim, but the court held'that a promise might be implied. The decision turned upon the duty to carry into effect the object of the law, there being no language in the act clearly showing that the opinion of the trustees as to the necessity for public aid should be treated as conclusive.

It will be noted that two ideas specially were embodied in this last amendment, viz.: (1) Notice to be in writing, and (2) action by the trustees in determining what would be just and reasonable. Manifestly, in the judgment of the legislature, the liberal terms of the statute had produced ill results. Greater care in the disposition of claims of persons affording service or relief was necessary. This purpose is plain, but the language used to express it is involved in some obscurity. The extent of the change intended is not’ wholly free from uncertainty. The uncertainty relates to the words: “ In such amount only as the trustees determine to be just and reasonable.” It may be asked: Do these words apply exclusively to services rendered before notice without refererence to when notice is given, or only to such services when • notice is not given within three days, or to services rendered after notice is given, or to all services rendered, and is the determination of the trustees, whatever it may be, a finality ?

A construction has been claimed for this clause which confines its application to the extent of relief and services, and not to their price or value. In support of this construction it is suggested that the comma after the word “ person,” to be found in the statute, should be stricken out, and that being done, the language implies a limitation of the discretion of the trustees to the character and quantity of the services and relief. It seems to be conceded that the proposed construction is not admissible if the comma is retained. Now, in construing a statute punctuation may be changed or disregarded. It will not, ordinarily, control unless other” means fail. At the same time it is more or less to be relied upon in ascertaining the meaning intended. The presence of a comma, in one place or another, would not be allowed to subvert the obvious meaning of a sentence. On the other hand, it would not, without reason appearing for it, be disregarded. If that which appears to have been the general purpose of the legislature is as well effectuated by reading the statute exactly as it has been caused to be printed, as it would be by changing it, even as to punctuation, no adequate motive is present moving to the change. . The language used seems to forbid .this construction. The words do not fit the idea. “ In such amount ” are words ordinarily used in connection with a money liability; '■'■for such amount ” would be language naturally applicable to quantity or extent, of service. The clause, we think, cannot refer to the amount or character of the remedies applied to the ailing pauper. If applied to that, then the language of the amendment is wholly useless, for the law, without the amendment, fully covers the purpose. It is the intent of the law, from beginning to end, to enjoin the full duty of affording relief upon the trustees. “The trustees shall afford,” says the law. How could this be carried out, if, in spite of the trustees, some one else may afford the relief, and in such amount and character as he may determine ? Exception is made only in cases where, by reason of a sudden necessity, the situation requires that the pauper be temporarily cared for by another. It applies, we are persuaded, to compensation to be awarded, and it restricts to the judgment of the trustees either that which is rendered and afforded before notice only, or that which is rendered after notice, or all services and relief afforded.

Another suggestion is that the time when the trustees must avail themselves of the right to determine either quantity of service or price, is when notice is served, because, by section 1495, it is made the duty of the trustees,’or one of them, to visit the person forthwith and ascertain his condition, etc. It is possible that an inference of this kind might be permissible if the duty enjoined were simply the one above indicated. But such is not the fact. The section provides that the trustees must ascertain, not only the condition of the pauper, but “ especially in what township and county in this state, if any, he or she is legally settled,” and 1496 directs immediate steps for the removal of paupers having settlement in some other county of the state. Besides, the same duty of visitation was enjoined by the statute before the amendment. We think, the language, taken altogether, fails to give color to the inference stated.

We are unable to perceive any valid reason for refusing to give effect to this statute as we find it. Without doubt the change in the law was intended to go farther than as affecting the matter of notice, or presentation of claims to the trustees. The formality of presentation was, in the ordinary course of business, the natural and proper thing to do under the former statute, as indeed it was the usual thing. A discretion to some extent was, without question, intended to be lodged with the trustees.

It is clear that if notice is not given within three days, no pay can be allowed for any service before notice. So any such claim may be left out of the consideration. Leaving this class out, it is not easy to see any ground for discrimination as to claims for services or relief. It is not reasonable to discriminate against services rendered before notice (where notice is given at the proper time), because to do so would be to discourage specially sendees rendered to relieve immediate and pressing distress. Nor is it reasonable to discriminate against services rendered after notice, because, having notice, the trustees, if they see fit to do so, can take charge of the case and direct just what shall be done, and can make a special contract, thus determining in advance what is just and reasonable. The conclusion upon the reason of the statute, therefore, would seem to follow that the discretion by the trustees applies to all services rendered and all relief afforded for which the township is made liable. There may be doubt as to the true construction of this feature of the statute, but we are of opinion that, under it, when notice is immediately given, the township is liable for all relief and for services rendered, but if notice is not given within three days, the township is liable for only such relief and services as may be afforded after notice is given, and that in either case the township is liable only for such amount of money as the trustees determine to be just and reasonable. In the performance of the duty enjoined, the trustees must pass upon all claims for relief afforded or services rendered, coming within the terms of the law. Claims for services or relief prior to notice, where notice is not given within three days, they have no jurisdiction to consider, the provision of the statute in that respect being mandatory upon them, as it would have been upon a court had a like claim been prosecuted under the former statute. And, in general, it may be said that the limitations in this statute are directions to the tribunal trying the issue; if a court, as under the old statute, then they control that tribunal; if the trustees, as under the present statute, then they control that body.

We reach this conclusion upon a consideration, not only of the apparent purpose of - the statute, but from the natural meaning -of the words used, taken in connection with the language of the statute as it stood before the last amendment. By the amendment the township is made liable.“ for all relief and for services rendered ” — terms applicable to the past— and for those “ which may or shall thereafter be afforded ” —terms applicable to the future, and the words following “ only in such amount as the said trustees may determine to be just and reasonable,” fix the tribunal which shall try the question of the value of the services or the relief. It would necessarily follow that the same tribunal must ascertain whether the person was, under the law, in condition requiring public relief, and whether the services charged were in fact rendered, in whole or in part, and whether they were of value.

In regard to the effect of the determination of the trustees, we think the language used leaves no serious question. The words of the additional clause as to liability are apt words to express a purpose to lodge with the trustees the discretion and power to determine finally the amount of compensation to be awarded to physicians and surgeons rendering services under the statute, and it is difficult to attach any meaning whatever to those words unless the plain ordinary signification is the true meaning. We conclude that the legislature meant, by the clause quoted, that which the words naturally import, and that the discretion conferred upon the trustees, when exercised, is to be held conclusive and final.

It is proper, in giving construction to a statute, to inquire into the cause and necessity of its enactment. When an amendment has been made, what was the mischief or defect for which the law, as it stood, had not provided ? And in giving construction to this amendment we are led to a consideration of the changes which have been, from year to year, taking place in the character of the people of the state. While formerly the paupers formed a small class, at the date of this amendment that class had grown much out of proportion to the growth of population generally. Taxation for their support had noticeably increased and had become burdensome. Even to the remote rural hamlets many irresponsible, idle vagabonds had penetrated, while in the larger places and upon the lines of public travel, the tramp nuisance had become so intolerable as to call for severe penal laws looking to its suppression. In these circumstances, it was but natural that many' unworthy persons, a much larger number than in the past, would claim charity under our liberal laws for the relief of the poor, and bills for relief afforded would grow larger in number and amount, and greater vigilance might, in the judgment of the legislature, be required in order to protect the public treasury than was formerly necessary. If moved by these considerations it is not strange that that body should desire, as a step in that direction, to clothe the' trustees with the discretion theretofore exercised by courts and juries, upon the belief that its exercise by the township board would prove less burdensome to the community. Possibly this policy may seem illiberal, and not in accord with the humane and generous impulses of our people. But we are not called upon to vindicate the wisdom or humanity of the statute. Those are considerations to be addressed to the legislature.

The case of Commissioners v. Ranney, et al., 13 Ohio St. 388, is believed to be an authority in point. The action was to recover attorney’s fees and expenses in defending a person indicted for murder under an appointment by the court, by authority of the statute directing the mode of trial in criminal cases which required the court to assign counsel to defend indigent prisoners. A bill for services to the amount of $1,096.94 was presented to the county commissioners, who refused to allow the whole claim, but did allow the sum of $500. An appeal was taken to the court of common pleas. A practice had grown up under the statute for the court to allow and certify compensation for services thus rendered, and for the county auditor to pay the same as part of the ordinary expenses attending the administration of justice. A later statute was passed making it unlawful to allow or to pay any such bill until it had been examined and allowed by the county commissioners and the amount certified by them. This court recognized the existence of the practice referred to, and was of opinion that the latter statute was enacted for the purpose of restraining the courts in the allowance of fees to counsel assigned to defend prisoners, and for the purpose of putting the county commissioners in the position before assumed by the courts of allowing such fees as might be deemed proper, and that from their allowance there was no appeal. It will be noted that the limitation imposed by this statute is less restrictive than the limitation in the statute we are considering, while the spirit of the two statutes authorizing the rendition of the service, is not dissimilar. Each is for the benefit of persons in need, and one no more than the other should receive a liberal construction. A proper defense of one’s legal rights, when in peril, is scarcely less a necessity than relief to his suffering body, nor is the legal aid afforded by the statute requiring the assignment of counsel to an indigent prisoner less a charity than the relief authorized by statute to one in physical distress.

A like construction was given to the statute of March 14, 1878, which authorized the appointment of counsel to assist the prosecuting attornej' in the trial of a pending case, and requires the county commissioners to pay “ such assistant such compensation for his services as the court approves and to their judgment seems just and proper,” (Sec. 7196, Revised Statutes), in Commissioners v. Osborn, 46 Ohio St. 271. It will be noted that the above statute was passed by the same legislature which passed the amendment of the poor laws, and but sixteen days after the enactment of that amendment.

But the construction of the clause of the statute under consideration is not a new question in this court. In Houston et al. v. Trustees of Urbana, disposed of at the January term, 1890, the defendants in error rendered medical services' to a pauper and presented a bill to the trustees. The board allowed a portion of the bill, making a tender of the amount, and rejected the balance. Suit was then brought against the trustees for the whole amount, and a recovery had in the common pleas. This judgment was reversed by the circuit court and a judgment rendered in favor of the claimants for the amount of the allowance, and against them for all costs, which latter judgment was affirmed by this court. An instructive report of the case by Seney, J., will be found in 2 C. C. Reports, p. 14, and following.

We are unable to perceive any difference, in principle, between a case where the trustees reduce the amount of the claim made and a case where they refuse to make any allowance at all, provided they act upon it officially, and exercise the discretion vested by law, in good faith. If they will not act, the claimant is not without remedy. The trustees are officers constituting a board. The act in question especially enjoins upon the board, as a duty, the auditing of such claims. And, if they refuse to act, or assuming to act, through an arbitrary and unreasonable spirit, refuse to make any allowance, or make an allowance manifestly out of proportion to the value of the services rendered, showing bad faith amounting to a fraud upon the law, we see no reason why a proceeding in mandamus would not afford an adequate mode of redress. But so long as the board acts upon the case made in good faith, we are of opinion that its decision is a finality. The right of the claimant, in the first instance, is to have the board determine what is just and reasonable. When that is determined, the amount so ascertained constitutes the legal demand against the township. If nothing is found due, then no legal claim exists.

If this rule should work a hardship in any instance, it would not be upon the physicians. They know the law, and are presumed to act in view of its provisions. If, in some cases, it might apply harshly to the sufferer, relief must be had at the hands of the law-making power. It is our duty simply to declare the law as we find it.

The motion for a new trial should have been granted, and the verdict set aside as against the law of the case.

The judgment will be reversed, and the

Cause dismissed.