author: Okby, C. J.

text:
    Oxford Tp. v. Columbia.
    1. Where a party requests that the court state separately the conclusions of law and fact under the civil code, § 280 (Rev. Stats. § 5205), and the request is not complied with, a judgment against such party should be reversed, unless it appear from the record that he was not prejudiced by the refusal.
    2. Trustees of a township holding title to lands granted to them by the general government for school purposes, are not exempt from the operation of the statute of limitations, in an action prosecuted by them to recover possession of the premises.
    Error to the District Court of Putnam County.
    The trustees of original surveyed township of Oxford, Butler county, Ohio, commenced an action in the court of common pleas of Paulding county, against Elsie Columbia and Thomas H. B. Columbia, to recover possession of a tract of land in that county, alleging in the petition that the plaintiffs have a legal estate in and are entitled to the immediate possession of the premises, and that the defendants wrongfully and unlawfully keep them out of possession. The summons served upon the defendants is dated May 25, 1875. The defendants admit that they are in possession of the premises, but they deny in their answer all other allegations in the petition.
    The judge presiding in that county having an interest in the cause, the same was by agreement of parties certified for trial and judgment to the court of common pleas of Putnam county, in which county a jury was waived and the cause submitted to the court. “ Thereupon the plaintiffs requested the court to find and state in writing the conclusions of fact found separately from the conclusions of law in this case, for the purpose of excepting to the decision of the court upon questions of law involved in the trial. On consideration whereof the court finds that the plaintiffs are not seized of an estate in or entitled to the possession of the property in the petition described or any part thereof, but that the defendants are seized in fee simple and are rightfully entitled to the possession of said lands. Thereupon the plaintiffs moved the court for a new trial for reasons stated in their motion, which motion was overruled by the court. . . . It is therefore considered and adjudged by the court that the defendants go hence without day and recover of the plaintiffs their costs. . . . And then came the plaintiffs and presented their bill of exceptions taken by them in this case, and the same is allowed and filed and ordered to be made part of the record in this case.” The bill of exceptions contains all the testimony offered on the trial.
    The facts, so far as it is necessary to state them, are as follows : Under authority of an act of congress approved March 3, 1839, “ to authorize the trustees of the township of Oxford, in the county of Butler, and state of Ohio, to enter a section of land in lieu of section sixteen, in said township, for the use of schools ” (6 Stat. at. L. 773), the division of the south half of section nineteen lying west of the river in township three north of range four east, in Paulding county, embracing the lands in dispute, was, on February 3,1841, selected among other lands, by the trustees of Oxford township, for school purposes. Subsequently, the inhabitants of Oxford township, at a meeting called, in pursuance of the statute, for such purpose, agreed to accept such selection ; but it does not appear when that meeting was held. On October 5, 1841, the president of the United States issued a patent, reciting the facts above mentioned, and granting said lands “ unto the trustees of the township of Oxford and county of Butler, in the state of Ohio, for the use of schools.” This patent was delivered to the trustees, and upon it their right to recover is based.
    By virtue of acts of congress passed in 1827 and 1828 (4 Stat. at L. 236, 306), an act of tlie general assembly passed in 1828 (27 Ohio L. 16), and other acts (Swan’s C. S. 166, 169 ; Swan’s R. S. 137, 110; S. & C. 198, 200), and a selection made by John A. Bryan, special agent of Ohio, the state, it is claimed, became the owner of the premises in controversy, and clothed with the legal title thereto, in 1811.
    In 1852, Dana Columbia went into possession of the west fraction of said south half of section nineteen, said fraction containing one hundred and sixty-four and nineteen-hundredths acres, and during that year and the year following he enclosed nearly seven-eighths of it with a good fence, cleared more than twenty acres, planted an orchard, farmed the cleared lands, employed workmen to assist him in quarrying stone upon and clearing the lands, and kept cattle thereon. He continued to inprove the lands, built a good frame dwelling-house thereon, built a barn, planted another orchard, made a cistern, and moved upon the farm, where he resided until his death, which occurred in 1865. During all the time from 1852 until his death, his occupancy was open, notorious, continuous and exclusive; and since his death the defendants, his widow and son, who have succeeded to his rights, have occupied in the same manner.
    During all the time that Dana Columbia occupied the premises, he claimed to be in possession as owner under the state. This is shown by the testimony of several witnesses. Judge Latty, a witness called by the plaintiffs, testified : “ Columbia called on me and wanted to know if there was any difficulty in the title of the state, or what was the difficulty. ... I told him I did not know; ... he might not be disturbed. He told me he was about to purchase it at a certain price. . . . (My recollection of the date of the conversation with Columbia is, that it was about 1852 when he spoke of purchasing the land. This may have been the second conversation when he told me he was about to purchase it at a certain price.) Afterward he told me he had purchased it. . . . My impression was that he had surrendered his first certificate and taken a second.” This second certificate issued by the state to Columbia, is dated June 2, 1851, and the purchase money, $328.38, having been paid in full by him, the governor, on January 9, 1855, executed and delivered to him a deed for the premises. He also paid during his life all the taxes assessed against the lands, and the defendants, since his death, have regularly paid all the taxes assessed against that portion of said lands in controversy in this case. In 1866, the widow and heirs conveyed to Calvin L. Noble the north half of the' tract, and he has remained in possession ever since, paying taxes and farming the lands, and it is agreed that he has succeeded to the rights of Dana Columbia and his widow and heirs therein.
    Other facts with respect to the title which appear in the record, and have been commented on by counsel, need not be here stated, in view of the grounds upon which the court has placed the decision of the case.
    The district court of Putnam county affirmed the judgment of the court of common pleas, and this petition in error was filed to reverse the judgment of the latter court as well as the judgment of affirmance.

      A. S. Latty and Henry Wewbegin, for plaintiff in error:
    I. It was error for the court to refuse to comply with the request to state separately its findings of fact and law. Section 280 of the Code of 1852.
    II. The allowance of the statute of limitations set up as a bar in favor of the defendants to defeat the recovery of the land by plaintiffs, would be to allow it to defeat the compact made between the United States and the state of Ohio, by which these lands where appropriated for the use of schools in the state, and by which it was mutually agreed that they should,. “ together with all the tracts of lands, before then, appropriated for that purpose, be vested in the legislature of the state, in trust for the use aforesaid, and for no other-use, intent or purpose whatever,” . . for the legislature has never yet passed any act to provide for or allow of their sale or disposal, and until this shall be done they must be considered as remaining subject to the control of the legislature which it has already provided for them.
    The state of Ohio may have parted with any claim which she had to the land in controversy as canal lands, but they were never given to her in trust for any such purpose, nor could she dispose of them in trust for any such purpose.
    We claim that in real actions the statute of limitations cannot commence to run against a person or party who at the time of its commencement had not the power to' convey or occupy the estate; and it will not, we think, be claimed in this case that the plaintiffs have now or ever had the power to convey or occupy the land in controversy.
    And we do also claim, first, that the state of Ohio was a mere trustee of the land in controversy for the people of Oxford township, without the power of disposing of this land without the consent of the inhabitants of that township, and that neither the governor of that state nor any of its agents could by any act of his or theirs authorize Dana Columbia to take advantage of the people of that township and deprive them of their right to the land. Redwood v. Reddick, 4 Mumf. 222.
    Secondly, that Dana Columbia as a mere conscious trespasser took possession of these lands in the first place in subordination to the title of the plaintiffs, and could not therefore, of his own act and without notice to them change the character of his possession. 7 Rich. 181. For at least where a party enters into possession without a claim or color of title and after-wards obtains a good colorable title adverse possession will commence only from that period. For the statute of limitations with respect to real property does not begin to run from the time the tenant came into possession, but from the time of his holding over or making a claim of right to the land. 3 Johns. Ch. 126; 16 Johns. 273 ; 18 Johns. 355. And if the defendants defend this action upon the ground of the statute of limitations their defense must be strictly made out by positive, and not by inferential proof, for every presumption of law is in favor of possession in subordination to the title of the true owner. Brandt v. Ogden, 1 Johns. 156; 9 Johns. 163.
    Dana Columbia had full notice of the title of the present plaintiffs to the land (see printed record, page 15), and when he purchased the land from the state of Ohio as canal lands, in disregard of the claim of the plaintiff and the object for which the land was granted for school purposes, he being affected by the notice, ought at least to be held as a trustee by implication and to hold the land for the plaintiffs. Normburzee v. Kennedy, 4 Dess. 134; 1 McCord Eq. 395, 398.
    We therefore insist, that in view of the legislation and the facts to which we have referred the maxim nullum, tempus oeaurrit regi, should apply to the claim of the defendants that this case is within the statute of limitations, for the claim of the plaintiffs is made by them as the trustees of an express trust created by law, for the benefit of the people, but to be exercised as the legislature of the state of Ohio may direct. The claim that the maxim should be applied as stated, has all the merits which evoked the maxim in the first place at common law, and to allow the plea of the statute to prevail in this instance would be to place a power in the hands of the defendants to defeat the expressed will of the United States, as well as the state of Ohio, which were parties to the compact by which this land was dedicated to common school purposes. See 1 Inst. 41, c; Plowd. 143; Hob. 347; Co. Litt. 90, c, 139, c, 119; Parker v. Baldwin, 11 East, 488; People v. Gilbert, 18 Johns. 228; 4 Bac. Abr. 461; Stoughton v. Baker, 4 Mass. 522; Kennedy v. Touseley, 16 Ala. 239.

      G. H. Scribner and S. T. Sutphin, for defendants in error :
    1. As to the statute of limitations: Angelí on Limitations, 400, § 391, p. 402, note, and 409, 411, 416, note ; 11 Shepley (Me.) 29; Arnent v. Wolf, 1 Grant (Pa.) 581; as to the rule in reference to wild lands, see Angelí, p. 405, 406, 407, note; Holt v. Hemphill, 3 Ohio, 232; that no color of title is necessary in Ohio, see Paine v. Skinner, 8 Ohio, 167; Yetzer v. Thorman, 17 Ohio St. 13; McNeely v. Langan, 22 Ohio St. 32, 37; and the possession need not be continuous in any one occupier; MaNeely v. Langan, 22 Ohio St. 32.
    The case being a clear one for the application of the statute of limitations, the question recurs as to whether or not the plaintiffs, who are township trustees, are within the maxim nullum tempus, &c., and therefore not bound by the statute. Either the plaintiffs have the legal title or they have not. If they have not, and the title is in the state, then the state should be the plaintiff. The petition avers that the plaintiffs are seized in fee of the land, and in support of this averment they have given in evidence a patent from the United States, which purports to grant to them the title. If the state should bring an action, we should meet it with the deed made by the state, conveying for a full and valuable consideration, the lands sought to be recovered. But the state is not the plaintiff, nor has she now any title to, or interest in the lands, either as trustee or otherwise. If the general government had the title at the time of the making of the patent, undoubtedly it passed to the trustees of the township. In that case the statute of limitations began to run from the time of the issue of the patent. Wallace v. Minor, 7 Ohio, 252.
    In the ease of Cincinnati v. First Presbyterian Church, 8 Ohio, 299, the late court in bank, after full argument and thorough consideration of the subject, held that the rule nullum tempus, &e., only applies in favor of the sovereign power of the state, and is peculiarly an incident to sovereignty.
    The patent, under the act of 1839, was made to the plaintiffs. If it invested them with the title, a right of action accrued the moment Columbia took adverse possession in the winter of 1852 or 1853. As the action was not brought until May, 1875, it is barred.
    The county was held barred by the case of State v. Beam, 2 Ohio St. 147. Here it will be observed the action was brought in the name of the state. A like ruling has been made in North Carolina. Armstrong v. Dalton, 4 Dev. 568. And that a town or city is bound by the statute, is held in Kennebunk v. Smith, 9 Shepley (Me.) 445; City of Alton v. Ill. Tr. Co., 12 Ill. 38. And now by statute in Massachusetts, the state stands upon the same footing with individuals. Rev. St. Mass. c. 119, § 12; Ibid. c. 120, § 20. And by the Revised Statutes of New York, the same limitations of actions apply to the state as to individuals.
    "We also particularly request the attention of the.court to the authorities collected upon this point in 6 Central Law Journal, 482, 483.

      And wliy should not this rule apply to the plaintiffs 1 Why should they be permitted to lie by year after year, for more than twenty-one years, and see money and labor expended, improvements made, cultivated farms brought from out the wilderness, and then escape the statutory limitation ? See Bentley v. Newton, 9 Ohio St. 489.
    2. If there was error in refusing to state separately the findings of fact and law it was not prejudicial to the plaintiff in error. Levi v. Daniels, 22 Ohio St. 38, 44.
   Okby, C. J.

In disposing of this case, it is necessary to determine two questions. 1. The plaintiffs requested the court to state separately, in writing, the conclusions of law and fact. That request was made under the statute, which provided: “ Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its finding, except generally for the plaintiff or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the trial, in which case the court shall state in writing the conclusions of fact found separately from the conclusions of law.” Civil Code, § 280 ; Rev. Stats. § 5205, note. This provision is one of much importance, and it is in no sense directory. That there was no proper compliance with the request is admitted; and it is clear to us that the action of the court in that respect affords ground of reversal, unless it be shown that the plaintiffs were not prejudiced thereby. But we are of opinion that it is shown that there was no such prejudice as to call for a reversal on that ground. The record contains all the testimony offered on the trial, and objection is made that the judgment below is opposed to the weight of the evidence. In deciding the case, therefore, we necessarily ascertain the facts.

2. If a patent for the lands in dispute could be properly issued by the president, under the act of congress approved in 1839 (6 Stat. at L. 773), that patent was, probably, properly issued “ unto the trustees of the township of Oxford and county of Butler, in the state of Ohio, for the use of schools,” for the title, under the act and patent, would, it seems, pass to the trustees aud not tbe state, notwithstanding the remarks in Trustees v. Campbell, 17 Ohio, 267, s. e. on error, 13 Howard, 211. But we do not find it necessary to determine whether a patent for the lands was or could have been properly issued; nor is it necessary to decide whether the state was or -was not, at any time, clothed with the legal title to the premises. Assuming, without deciding, that the trustees of Oxford township became clothed with the legal title to the premises in 1811, we all unite in holding that they are barred from maintaining this suit by the limitation of twenty-one years, prescribed in the statute as the period within which actions to recover the possession of real estate may be brought, if the statute applies to trustees holding title in the manner claimed. This action, as already stated, was brought in 1875. But Dana Columbia was in possession of the premises from 1852 until his death in 1865, and the defendants who succeeded to his rights have been in possession ever since, and that possession has been, during the whole period, in the largest sense open, notorious, adverse, uninterrupted and exclusive. It has been held and maintained, moreover, from the beginning, under a purchase from the state, and the purchase-money and all taxes have been paid. Large and valuable improvements were made by Columbia upon the premises as early as 1852, and he resided thereon at the time of his death; and if it is true, that the trustees became the owners of the premises for school purposes in 1811, there was no time from 1852 until 1873, when they were not clothed with the power and charged with the duty of prosecuting an action to recover possession. 1 S. &. C. 1577.

The plaintiffs insist, nevertheless, that the title to the premises, under the act of congress of 1839, was in the state, and that the statute of limitations does not run against the state. We have held, however, that the position that the title was in the state, under that act, is not tenable. But if the title had been vested in the state, the result would have been the same, for the state would have been estopped by its deed to Columbia. Branson v. Wirth, 17 Wall. 32, 12. And see 3 Pick. 221; 7 Cal. 527; 1 Peters, 87. It is also said that the plaintiffs are the trustees of an express trust, and that the action is not barred for that reason. Civil Code, §§ 6, 27; Rev. Stats. §§ 4974, 4995. But this is not an action between trustees and beneficiaries.

The remaining question, then, is whether the statute of limitations applies, assuming that the plaintiffs, as trustees of Oxford township, acquired title to the premises, by donation from the general government, in 1841, for the benefit of schools. That the maxim, nullum temjpus occurrit regi, is applicable to the general and state governments, is not denied ; but it was held in Cincinnati v. First Presbyterian Church, 8 Ohio, 298, upon the fullest consideration, that the maxim did not apply where a city prosecuted an action of ejectment to recover possession of lots dedicated to public use, the defendants in the action having been in the adverse possession of the lots for more than twenty-one years. I am aware that cases may be found in opposition to that decision. Several of them are collected in a note to the case as reported in 32 Am. Dec. 718, 721. But that decision has been repeatedly approved in this court, and, as applied to a case like the one-under consideration, it is amply supported here and elsewhere. Williams v. First Presbyterian Church, 1 Ohio St. 478, 510; Trustees v. Campbell, 16 Ohio St. 11; School Directors v. Georges, 50 Mo. 195; 2 Dillon on Mun. Corp. (3 ed.) §§ 668, 674; and see note above referred to. As to the application of the rule to adverse possession of public ways, see Cincinnati v. Evans, 5 Ohio St. 594; cf. Fox v. Hart, 11 Ohio, 414; Lane v. Kennedy, 13 Ohio St. 42; McClelland v. Miller, 28 Ohio St. 488; Railroad v. Commissioners, 31 Ohio St. 338.

Judgment affirmed.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Williams v. Englebrecht.
    A judgment of reversal is effective notwithstanding the death of the plaint- . iff in error during the pendency of proceedings in error. Such judgment takes effect, by relation, as of the date of the commencement of the proceeding in error; and it is competent for the court, to which the cause is remanded for a new trial, to order a revivor of the action in the name of the proper representative of the deceased party.
    Error to the District Court of Scioto County.

      Motion to reinstate, &c.
    At the last term of this court, a final judgment was rendered in this case, reversing the judgment of the district court and remanding the cause for a new trial.
    It is now made to appear that John D. Williams, plaintiff in error, died during the pendency of the proceedings in error. The object of the present motion is to reinstate the case on the docket, set aside the judgment of reversal, revive the action in the names of the representatives of the deceased plaintiff in error, in order that the judgment of reversal may be entered in the name of such representatives.

      J. W. Bcmnon and W. A. Hutchins, for the motion.

      F. O. Secwi and O. F. Moore, contra.
   By the Court.

Notwithstanding the death of the plaintiff in error after the assignment of errors and before final judgment, the judgment of reversal is valid and effective. By relation, the judgment of reversal takes effect as of the date of the commencement of the proceedings in error.

True, the original action must be revived before a new trial can be had in the court below; but such revivor may be had in the court to which the cause has been remanded for a new trial. See Block v. Hill, 29 Ohio St. 86, and Foresman v. Haag, 37 Ohio St. 143.

Motion overruled.


author: Longworth, J.

text:
    Lloyd v. Moore.
    Where the judge, at defendant’s request, gave to the jury a certain special charge in addition to his general charge, which said special charge was erroneous, and afterwards having been requested by the jury to repeat his charge to them, repeated the general charge, but declined to repeat the special charge, there was no error in refusing to repeat the erroneous instruction.

      Error to the District Court of Scioto County.
    Defendants in error brought suit in the court of common pleas of Scioto county against plaintiff in error upon four promissory notes executed by him, payable to the order of Hess & Burke, and. by them indorsed and delivered to defendants in error. Lloyd claimed that there had been, as between himself and the indorsees, a total failure of consideration, and that although the notes had been transferred before due they were not taken in the usual course of trade, nor was any value given for them by plaintiffs.
    The bill of exceptions does not contain all the evidence offered in the court below, and we are not advised what the facts of the transaction may have been. There was, however, evidence tending to show that Hess & Burke were largely indebted to Moore & Welch for purchase-money for the sale of tracts of land which had been conveyed to them, and which indebtedness they had secured by a deposit of certain collateral securities.
    There was also evidence tending to prove that on the 18th of November, 1873, Hess had in his possession notes on parties in Sandusky, Ohio, amounting on their face to $23,735.50, which he proposed to get discounted and apply to the payment of what he owed plaintiffs on the land purchased from them, if they (the plaintiffs) would stand the discount. But plaintiffs declined, and proposed to take the notes as money, to be credited on what Hess owed, if he would submit to the discount on the notes, leaving the net amount to be credited for the notes $22,063.80. That this was agreed to by Hess, and the San-dusky notes were accordingly indorsed and transferred to plaintiffs, and the $29,000 in collaterals, except about $2,000 or $3,000 in the notes, were returned to Hess.
    Also evidence tending to prove that in December, 1873, at the request of plaintiffs, Hess conveyed to them six hundred and forty acres of land in Kansas ; also one hundred and sixty in Indiana, and his residence in Columbus, the latter subject to a mortgage for $6,000. These deeds were all absolute on tlieir face, but were intended as mortgages to secure plaintiffs for what Hess owed them for the land sold.
    There was evidence also in the form of letters from plaintiffs and the depositions of Hess, offered in behalf of defendant, tending to prove that the plaintiffs refused to give Hess credit for the amount of the Sandusky notes, and has never in fact done so, and that subsequently, in March, 1874, it was agreed between plaintiffs and Hess that plaiu tiffs could hold said San-dusky notes, or those that they still had, as collateral only.
    Also evidence in behalf of plaintiffs tending to prove that in February, 1874, Hess desired to get back a part of the San-dusky notes, but plaintiffs refused to return any part of them unless Hess would give other notes in lieu thereof. Thereupon, TIess, on February 20, 1874, transferred to plaintiffs the Lloyd notes now sued on, and some notes against one Thos. T. Yeager, the whole amounting to about $2,400 ; and the plaintiffs returned to Hess about $5,000 of the Sandusky notes for the same, Hess agreeing to transfer other notes to make up the amount of the Sandusky notes.
    The court charged the jury correctly upon the law of the case, and in addition to the general charge gave to them a special charge asked by plaintiff in error. Some time after the jury had retired, they came into court and requested the judge to repeat his charge to them.
    The court thereupon read over to the jury the instructions hereinbefore stated, as they were given originally, but omitting the said special charge given at the request of the defendant. And, at the request of one of the jury, read a second time the said instruction in respect to the sufficiency of proof as to the knowledge of plaintiffs to defeat a recovery. The defendant, Lloyd, being present after the court had concluded reading said instructions, inquired of the court if it was not proper to read also the said instruction given at the request of his attorney, and requested that the same should be read; to which the court replied that it was not necessary to read it again, and the same was not read.
    The special charge was as follows :
    “ If the jury shall find from the evidence that Hess voluntarily delivered to plaintiffs certain notes, to be credited on a debt not yet due, but the same were not so credited, and plaintiffs refused to so credit them, and subsequently said notes so delivered were exchanged for the notes in controversy, the plaintiffs cannot be said to be the holders of the notes in suit for value.”
    The jury found for the plaintiffs and judgment was entered upon the verdict. This judgment was subsequently affirmed in the district court.
    It is now claimed, that there was such - an abuse of discretion on the part of the judge as would warrant a re-trial of the case.

      Moore <& Newmcm, for plaintiff in error.

      W. A. Hutehms and J. W. Bcmnon, for defendants in error.
   Longworth, J.

Without doubt it was the duty of the judge at the trial, when he had undertaken to repeat his charge to the jury, to omit no material part of it, and it was defendant’s right to insist that the special charge, which he claimed to be in his favor, should, if correct, be read to the jury, together with the general charge ; but whether or not this refusal was prejudicial to defendant in such manner as to warrant a new trial we are relieved from the necessity of considering, being, as we are, unanimously of opinion that the special charge was not law.

There was evidence before the jury tending to show that when the notes sued on were transferred to plaintiffs to be credited upon their claim, they parted with valuable securities in consideration of the transfer. If this were true, defendant was not at liberty to rescind the contract, since he was not able to place his indorsees in statu quo. Under such a state of facts his right, and only right, was to insist that the amount of the notes should be credited upon his indebtedness. If the indorsement was made simply as security for an antecedent debt, the rule in Boxborough v. Messick, 6 Ohio St. 448, would apply, but the evidence not being before us, we are in the dark as to the true state of the facts. By this special charge the jury were instructed, that the plaintiffs were not the holders for value if they had broken their contract by refusing to credit the amount of the notes upon their claim. The error made by the court was in giving this instruction in the first instance, and this was prejudicial to the plaintiff alone. There was no error in refusing to repeat it..

Judgment affirmed.


author: MoIlvaine, J.

text:
    The State v. Heinmiller.
    1. Under section 1749 of Revised Statutes, the mayor of a city has power to suspend officers appointed by him under an ordinance, for neglect of duty, misconduct in office or other sufficient cause, “ and may appoint other persons to fill the temporary vacancy occasioned thereby; and 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.” Seld, 1st. That the council may, in its discretion, . approve or disapprove such suspension. 2d. That the action of the council may be had upon such information as may come to its knowledge. 3d. The disapproval of such suspension by the council terminates the vacancy occasioned thereby. 4th. Upon the termination of such vacancy, the person appointed to fill it ceases to be an officer of the city.
    2. A petition in quo warranto, prosecuted on behalf of the state by the attorney-general, to oust an incumbent of an office, need not set forth the name of the person claiming to be entitled thereto, as is required by section 6766 of the Revised Statutes in cases prosecuted by a person claiming to be entitled to the office.
    Quo Warranto.
    The case is stated in the opinion.

      E. I. <& H. G. Ta/ylor, for relator:
    The whole question depends upon the construction of section 1749 Revised Statutes of 1880. This section conferred on the mayor the power of temporary suspension, which he exercised, and the questions now are: First. What are the limits of the mayor’s power in that behalf ? Second. What power has the city council in the premises ?
    Pirst, then, as to the mayor’s authority: It may be conceded that the mayor had authority to suspend and to appoint another person to fill the temporary vacancy occasioned thereby. But beyond this he has no power whatever. He cannot permanently suspend any officer, nor can he permanently appoint to fill the vacancy. Permanent suspension would be a removal from office, and the power of removal is nowhere vested in the mayor. This authority is in the city council alone. It follows that if there could be no permanent suspension by the mayor, there can be no permanent appointment by him. But we think that, by the plain terms of the statute, the appointment and suspension are not only temporary, but the time is fixed when the same shall terminate, which is with the next regular meeting of the council. By no act or authority of the mayor could either be extended beyond that time. On the first meeting of the council the whole matter comes before them for their action, and from that time they have exclusive authority over the subject, and the mayor’s suspensions, appointments, and powers in that behalf are ended.
    Second. What power have the council in the premises. The statute makes it the duty of the mayor to report “ all such suspensions and the cause thereof, and all such appointments to the council at the next regular meeting, for their action.” The whole matter is then before the council for any action they may deem proper. The council may confirm the action of the mayor, of they may wholly set it aside. But whatever their action may be, it is final. Neither the mayor nor any other officer or person has any power to take further action in the matter, or in any way to change or modify the determination of the council. In this case the council refused to -concur in either the suspension or the appointment, and resolved “ that said order of the mayor be set aside and held for naught.” They also directed D. D. Tresenrider “ to proceed at once to discharge the duties of said office of fire engineer, and to take control and command of the fire department of said city of Columbus, the same as if said order of the mayor had not been made.” It seems to us clear that this terminated the temporary and all authority of Ilenry Heinmiller, and whatever power he has assumed to exercise from that time as fire engineer of the city of Columbus has been wholly without authority of law.

      A. W. Krwmm, city solicitor, made an oral argument for relator.

      Wright, Outhwaite & Linn, and Converse, Booth <& Keatmg, for respondent:
    The proceedings before Mayor Peters, acting within the scope of the express powers conferred by section 1749, inquiring into the acts of misconduct alleged against Tressenrider, were judicial acts, which this court, upon proceedings in quo warranto, cannot question. They may be the subject of review in some other form of proceeding, but not in this.
    When the mayor, under the provisions of section 2021, may deem it proper to suspend an officer of the police force, no power to review his action is attempted to be given, and, indeed, we do not think it possible for the legislative power to confer upon the board of police the power of review, because the acts of the mayor in this regard are judicial acts; nor do we think the city council could be invested with any such power for a like reason, and we think a fair construction of the language of section 1749 does not attempt to do so, for it is only the cause of suspension which the mayor is required to report, and not the evidence which led his mind to the conclusion ; and such is evidently the view entertained by counsel for the relator, for they do not attempt in their reply to gainsay or impugn the findings of the mayor in the premises.
    The findings of the mayor, therefore, being taken as true, and the mayor having suspended Tressenrider from office, there was a vacancy in the office; it is true, a temporary vacancy, but, nevertheless, a vacancy, and this vacancy the mayor, filled, by the appointment of Heinmiller; and after the report, made by the-mayor, as required by section 1749, any action, of the city council in the premises must be some action warranted by law.

      Now, if we turn to section 1685, the court will find that all appointed officers of the municipality may be removed at the pleasure of the city council, but there is no power anywhere given to reinstate an officer who may have been removed, unless it shall be found in section 1749. The answer to this is, there is no express power to this effect, nor any such power by implication from the language used in the statute ; and if not, then the council cannot exercise the power, but are remitted to the provisions of section 1685, and the mode pointed out by section 1 of the fire ordinance in case of a vacancy in the office ; and that the word “ action ” in section 1749 means no more than this.
   MoIlvaine, J.

By this proceeding, the defendant is called upon to show by what authority he assumes to hold and exercise the office of fire engineer of the city of Columbus.

This office was created by an ordinance of the city, passed on May 8, 1871, which was amended June 8, 1874. This ordinance, which was fully authorized by the statutes of the state relating to the organization and government of municipal corporations, provides, among other things, as follows :

“ Section 1. Be it ordained by the city 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 and consent 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 ordinances 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 facts in the case are agreed upon, and, in so far as they are deemed material, are as follows: On September 6, 1880, one David D. Tressenrider was duly appointed, confirmed and qualified as fire engineer, whose term of office would have expired in June following, if a successor had been appointed and qualified ; but inasmuch as no successor was appointed, confirmed cmd qualified, he continued to exercise the functions of the office until the following occurrences, which are thus stated in defendant’s answer:

“ That previous to the second day of March, a. d. 1882, specific charges of neglect of duty and misconduct in office on the part of said David D. Tressenrider, were filed against him with George S. Peters, then the duly elected and qualified and acting mayor of said city, and that thereupon such proceedings were had before said mayor, after reasonable notice to the said David D. Tressenrider to appear and answer said charges; and after a hearing upon testimony, at which the said David D. Tressenrider was present in person and by counsel, that said mayor, upon the testimony adduced before him, found said charges to be true, and on said second day of March, a. d. 1882, for such neglect of duty and misconduct on the part of said David D. Tressenrider, suspended him from said office of fire engineer; and immediately thereafter appointed this defandant, who was then and is now an elector of said city, to fill the vacancy occasioned in said office by such suspension; and that said defendant immediately after said appointment accepted said office, and immediately took an oath to support the constitution of the United States and the state of Ohio ; and an oath of office faithfully and impartially to discharge all and singular the duties pertaining thereto, and immediately gave bond with good and sufficient sureties to said city of Columbus in the sum of $5,000, conditioned according to law and the ordinances of said city, which bond was approved by said mayor, as required by said ordinance regulating and defining the duties of said office, and that immediately thereafter said defendant entered upon the discharge of all and singular the duties pertaining3 to said office of fire engineer of said city of Columbus, and has ever since continued, and now continues, to discharge such duties under and in pursuance of said appointment.”

In reply to this answer, the relator states the following facts, among others, to wit:

That on the 6th day of March, a. d. 1882, at a regular meeting of the city council of said city of Columbus, duly and lawfully assembled and held, being the next regular meeting of said council after said 2d day of March, a. d. 1882, the said George S. Peters, mayor of said city of Columbus, reported to said city council in writing the said suspension of said David D. Tresenrider as fire engineer of said city, the cause thereof, and the appointment by him of said Henry Heinmiller, the defendant, to fill the temporary vacancy in said office caused thereby ; that the said city council thereupon entered upon the investigation and consideration of the matter of said suspension, the cause thereof, and said appointment so reported as aforesaid, and, pending said investigation and consideration, the council adjourned its said session until the succeeding day, March 7, 1882; that on said 7th day of March, a. d. 1882, at said adjourned meeting of said city council, duly and lawfully assembled and held, the said council resumed and continued the investigation and consideration of .said matters aforesaid, and upon the conclusion thereof, the said council, on the 7th day of March, 1882, by a majority vote of all the members elected thereto, passed and adopted a resolution, of which the following is a true and correct copy, to wit:
“Resolved by the city council of the city of Columbus, That the order of the mayor of said city suspending D. D. Tresenrider from his office of fire engineer of said city, and appointing Henry Heinmiller to fill the temporary vacancy occasioned thereby, be not concurred in ; that said order be set aside and held for naught, and that said D. D. Tresenrider be, and he is hereby directed to proceed at once to discharge the duties of said office and take control and command of the fire department of said city the same as if said order had not been made.”

The facts stated in reply are admitted to be true ; but it is agreed that the testimony heard by the mayor was not reported by him to the council. A large portion, however, but not the whole, of such testimony reported by an unauthorized stenographer, was considered by the council; but no witnesses were examined before the council, nor is it known what inquiry, if any, was made hy individual members of the council, concerning the truth of the charges preferred against Tresenrider.

Upon this state of facts, the question is: Has the defendant shown a right to hold the office ?

In the first place, it is claimed on behalf of the defendant that the finding and judgment of the mayor on the hearing of the charges preferred against Tresenrider were the exercise of judicial powers; wherefore, the finding that Tresenrider was guilty of neglect of duty in office and the order of his suspension from office cannot be reviewed by this court upon this proceeding in quo warranto.

Whether the powers exercised by the mayor were judicial or administrative is wholly immaterial, as it is not sought in this proceeding to review his acts for the purpose of approving or disapproving them. His finding and order must stand, as incontrovertible facts in the case. The sole question before us, as far as his actions are concerned, is as to their force and effect. And this brings us to consider section 1749 of the Revised Statutes, which constitutes the sole authority of the mayor for his action in the premises.

This section provides as follows:

“ Section 1749. He shall, unless otherwise provided, have power to suspend from office any lieutenant of police, or any officer appointed by him under the authority of any law or ordinance, for neglect of duty, misconduct in office, or other sufficient cause, and may appoint other persons to fill the temporary vacancy occasioned thereby ; and 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.”

That a suspension under this section cannot be rightfully ordered without cause, may be admitted; but the existence of sufficient cause will be presumed until it appears otherwise. But whenever a suspension is ordered, whether rightfully or wrongfully, it operates, as between the officer and the municipality, until the order be set aside, or the term of suspension expires. An exigency calling for the exercise of the power exists, whenever the existence of sufficient cause comes to the knowledge of the mayor; and the means of acquiring such knowledge is not prescribed or limited by the statute : so that the exercise of the power is left to the sound discretion of the mayor, who is also responsible for its abuse.

That the duration of the suspension authorized by this section is to be measured by the duration of the vacancy occasioned by it, is a proposition too plain for discussion; and it is expressly declared that the vacancy occasioned by the suspension is temporary. A suspension from office and a removal from office convey very different ideas; and it is very clear that the legislature recognized the difference, as by section 1685 of the same act, the power of removal from office in municipalities is conferred on the council alone. In the ease of suspension it is contemplated that the suspended officer may be restored to his office and hold the same by virtue of his original title, while in case of removal the title of the removed officer is permanently lost to him. 'The vacancy in this case being temporary, and the suspension being for the same time, of course, the suspended officer is restored to his office at the expiration of that time, unless Ms right and title be impaired or taken away by some other cause.

It has not and cannot be disputed, that the title of the defendant to this office terminated with the termination of the vacancy which he was appointed to fill. The question therefore arises, when did such vacancy terminate ? The statute requires the mayor to report to the council for their action ” at the next regular meeting thereafter, “ all such suspensions, and the cause thereof, and all such appointments,” to wit, appointments to fill temporary vacancies occasioned by such suspensions. Now, it is claimed on behalf of defendant that the only action upon the report of the mayor, which the council is authorized to take, is to approve the suspension and to approve or disapprove the appointment. We are unanimous in the opinion that this claim cannot be maintained. The action of the council is unrestricted. It may act upon its own absolute discretion in approving or disapproving the whole or any part of the report. Discretion to approve implies discretion to disapprove. The action of the council is confided to its judgment, and that judgment may be based upon such information and knowledge as it may obtain. No restriction or limitation is imposed upon the council as to means of acquiring the knowledge by which its action must be controlled.

Whatever may be the effect of the action of the council in appi’oving the action of the mayor in ordering a suspension, in the light of section 1685, which provides :

“ Section 1685. An officer or agent, 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; an officer elected may be removed from office by a concurrent vote of two-thirds of all the members elected to the council; and in case of elective officers, provisions shall be made by ordinance for preferring charges and trying the party complained of upon the same; but in no ease shall such removal be made, unless a charge in writing is preferred and an opportunity given to make defense,” — a subject we need not now inquire into — it is quite clear to us, that the action of the council disapproving of the order of suspension. ipso facto, terminates tbe vacancy occasioned by it, and also terminates the suspension itself; so that an appointee to fill such vacancy can no longer rightfully exercise the functions of the office.

It is also claimed on behalf of defendant, that the petition in this case is defective in not setting forth the name of the person who claims to be entitled to the office, as required by section 6766 of the Eevised Statutes. This section applies only to proceedings prosecuted by the person who claims the office as provided in section 6764, and such showing is certainly necessary where a judgment of induction as well as ouster is sought. The case before us, however, is prosecuted by the attorney-general on behalf of the state, as authorized by statutes in relation to the duty of the attorney-general, and the only remedy sought is a judgment of ouster.

Judgment accordingly.


author: Johnson, J.

text:
    Little v. Insurance Company.
    A policy of insurance, having one year to run, was delivered to the insured, without payment of the premium agreed on. In a few days, the note of the insured at sixty days was accepted for the premium, which was not paid at maturity, and remained in the hands of the insurer. After this, and within a reasonable time before the loss, the insurer canceled the policy, and notified the parties interested therein of such cancellation, and credited on the note, a sum less than the pro rata proportion of the unearned premium.
    The condition of the policy provided, that it was hot to be binding until actual payment of the premium, and that the insurance should be terminated at the request of the insured, in which case the company was to retain only the customary short rates for the time the policy was in force, also that the company might, at its option, terminate the insurance upon giving notice to that effect, and tendering a pro rata proportion of the premium for the unexpired term. Held, 1. That by delivering the policy without actual payment of the premium, and by taking a note of the assured for the same, the company waived the condition that the policy was not binding unless the premium was actually paid. 2. On failure of the assured to pay the note, the company might, on giving reasonable notice thereof before the loss, exercise its option to cancel the policy. 3. As the note was past due and in the hands of the company at the time of such cancellation, it was not necessary to tender back the pro rata proportion of the unearned premium in cash, nor to Credit the same on the note. The note was thereafter subject to such credit.
    Error to the Superior Court of Cincinnati.
    The action was brought by Otis B. Little to recover under a policy of insurance, made in the name of Little, Carson & Bro., for a loss by fire — “ loss, if any, payable to the Charter Oak Life Insurance Company, of Hartford,” to whose rights the plaintiff claimed to be subrogated.
    The conclusion reached by the court upon one of tlie many questions presented, is fatal to a recovery; therefore, such only of the facts as present this question will be stated:
    May IT, 1869, the defendant, the Eureka Fire and Marine misurance Company, in consideration of a premium of $112.50, insured certain property, for Little, Carson & Bro., for one year, loss if any, payable to the Charter Oak Life Insurance Co.
    The premium not being paid at the time, a note was taken on the 26th of May following by defendant for the amount, payable in sixty days from date.
    This note was not paid at maturity, and remained unpaid in the hands of the defendant at the commencement of the action, and was treated as worthless. The makers were shortly after it fell due adjudged bankrupts, and were at the time of its maturity insolvent. No offer to pay this note was ever made.
    Among the conditions of the policy are these: — “5. No insurance, whether original or continued, shall be considered binding until the actual payment of the premium.”
    (The words 1 actual payment ’ are italicised in the policy.)
    “ 6. The insurance may be terminated at any time' at the request of the insured, in which ease the company shall retain only the customary short rates, for the time this policy has been in force, and the same may at any time be terminated at the option of the company on giving notice to that effect, and tendering a pro rata proportion of the premium for the unexpired term thereof.”
    The note became due July 28, 1869, and on the 9th of September following, the defendant, in a letter to Little, Carson & Bro., called their attention to the 5th condition above, and notified them that it was in force, and on the same day canceled the policy and credited $75.00 on the note, as the pro rata share of the unearned premium for the remainder of the year. This credit is some two or three dollars less than the pro rata proportion of the unearned premium, if the fractions o£ the months of May and September be not counted as a month.
    Yerbal notice of this cancellation was also given to all the parties interested in this policy, and in the property insured, in a short time thereafter, and some two months before the loss.
    Upon this state of facts, the court charged the jury : “ That, if, after the said insurance was effected, the said William and Robert Carson, instead of paying the premium due therefor, gave their promissory note, payable in sixty days, which was received by the said defendants for and on account of said premium, and was held by them until after it became due, and is now held by them, and was never in any way used by them, and is now brought here into court, and if, after the said note became due, the said William and Robert Carson, and the other parties interested in the said insurance, had notice that the said note had not been paid, and neglected to pay the same, and thereupon, and within a reasonable time before the fire, the defendants elected to cancel the same, and gave the said parties reasonable notice before the fire, that the policy was canceled, then the plaintiff cannot recover.”
    Also, that “ in case of non-payment of said note, or for any other reason, defendant elected to end the risk and did so, nothing more was required of them, than to notify the insured within a reasonable time before the fire.”
    To reverse a judgment for defendant on the foregoing facts and instructions, is the object of the present petition in error.
    It is assumed, for the purposes of this case, that the plaintiff is entitled to be subrogated to the Charter Oak Insurance Company and to recover on this policy, if the same was not legally terminated before the loss.

      Hoadl/y, Johnson & Colston and Henry M. Cist, for plaintiff in error.
    As to the pretended cancellation, it amounted to nothing, for three reasons : 1. The written note of Townley, the secretary, is not a cancellation, or notice of cancellation. 2. No receipt for return premium or other evidence of credit on the notes, or notice of such credit, was given to anybody. 3. The amount credited was $75, which was less than thq pro rata proportion of premium. Policy, dated May 17; premium, $112.50 ; cancellation, Sept. 7; credit should have been, $77.95. Vanvalkenburg v. Lenox Fire Ins. Co., 51 N. Y. 465, 468. That the acceptance of the note and recital of payment of the premium in the policy, conclusively established the payment of the premium. Miller v. Life Ins. Co., 12 Wall. 285; Goit v. National Protection Ins. Co., 25 Barb. 189; Basch v. Humboldt Mutual Fire and Marine Ins. Co., 35 N. J. 429, and cases cited; Madison Ins. Co. v. Fellowes, 1 Dis. 217; The same v. The same, 2 Disney, 128; Consolidated Fire Ins. Co. v. Cashow, 41 Md. 59; Illinois Central Ins. Co. v. Wolf, 57 Ill. 354; Teutonia Life Ins. Co. v. Mueller, 77 Ill. 22; Teutonia Life Ins. Co. v. Anderson, 77 Ill. 382; Troy Fire Ins. Co. v. Carpenter, 4 Wisc. 20; Michael v. Mutual Ins. Co., 10 La. Ann. 737; Prince of Wales Life Ass. Co. v. Harding, Ellis, Bl. & Ellis, 183; Dalzell v. Muir, 1 Camp. 532; De Gaminde v. Pigou, 4 Taunt. 246; Anderson v. Thornton, 8 Exch. 425.
    The right of the insurance company was to sue on the note and recover its amount. Barnum v. Childs, 1 Sandf. 58; McCurtie v. Stevens, 13 Wend. 529.

      LAnoolm, Stephens c& Slattery, for defendant in error :
    I. The policy was rightfully canceled before the loss. Now, the premium never was actually paid and there can be none tendered back. So long as the note was not due, the policy was not void on that account, for a temporary credit .was given for the premium. ' But when it fell due and was not paid, and ■when all the parties interested knew it remainded unpaid, and that the policy was to be canceled if not paid, then the condition as to actual payment applies. The premium had not only never been actually paid, but its payment had been refused, and these defendants had the right to cancel the policy, which they did do at a reasonable time before the loss. Of this cancellation not only. Little, but ¥m. Carson & Bro. and Irwin had due notice. Judge Hoadly cites a long list of cases to show that the premium was actually paid. There is not one of them that touches this case ; they are all cases of waiver, or where the good faith of the transaction required that the party should be estopped from denying payment.
    II. The non-payment of premium is a cause of forfeiture, under the fifth condition, under the circumstances of this case. If delivering the policy was evidence of waiver of the immediate payment of the premium, certainly when the Carsons had notice that their waiver was withdrawn, they had no right to rely upon it afterwards. The note was given some days after the credit was given. It was, therefore, simply collateral security for the premium, and was no payment, unless the note itself was paid. The Carsons originally agreed to give a cash premium, and Mr. Young relied upon that promise when he issued the policy. It is quite apparent from the various cases, viz.: Sheldon v. Atlantic Ins. Co., 26 N. Y. 460; Wood v. Poughkeepsie Ins. Co., 32 N. Y. 619; Boehn v. Williamsburgh Ins. Co., 35 N. Y. 132; that the reason of holding the premiums waived when the policy is delivered, is to prevent fraud, but not to'enable a party to commit fra/ud. In this case the insured had no right to rely upon the giving the'note as a payment of the premium. • They had due notice that it was not paid. They were further notified that the insurance company would not waive the premium after September 7. On this subject of non-payment of premium see: Salvin v. James, 6 East, 571; Tarleton v. Stansforth, 5 Term, 695; Blanchard v. Atlantic Ins. Co., 33 N. H. 9; Bradley v. Potomac Ins. Co., 32 Md. 109; Reynolds v. Mutual Fire Ins. Co., 34 Md. 280.
    III. The cancellation of the policy under the privilege reserved in the sixth condition. This cancellation was not wantonly done or without good cause. It was a mutual privilege and to be construed fairly and not as a forfeiture. -Where no premium had been in fact paid, it was not necessary to tender anything back. Irwin v. National Ins. Co., 2 Dis. 68; Emmott v. The Slater Ins. Co., 7 R. I. 565; Fabyan v. U. M. F. Co., 33 N. H. 208; Bergen v. Builders' Building Ass., 38 Cal. 541. This cancellation was made in good faith and notice was given to all parties who could possibly be interested. This notice was given several months before the fire. The insured knew the defendants were not carrying the risk. They knew the defendants had received no premium and were likely to receive no premium. The mortgagees, by the terms of the mortgage, might have insured the property, and had the premium liens secured by the several mortgages.
    Upon the subject of the credit on the note, I desire to say what those familiar with insurance know, that when policies are canceled, the usage is not to divide the months, but where it had run say for three months and twelve days, it is treated as four months, and the jury in their finding probably acted upon this usage, for it is well known here. The court will take judicial notice of such usage. Greenleaf on Ev. § 5; Brown v. Piper, 91 U. S. (1 Otto) 43; Hoare v. Silverlock, 12 Ad. & El. 633; M. & H. Glue Co. v. Upton, 6 Cf. Gaz. 843; Needham v. Washburn, 4 Cliff. 259, 260.
   Johnson, J.

This policy was delivered and took effect May 17, and by its terms was good" for one year unless sooner terminated in accordance with its terms and conditions. On its face, the premium was payable in cash, and one of the conditions was, that, no insurance shall be considered binding, until the actualpa/y.ment of the premium.” By the delivery of the policy without such payment, and by taking a note of the insurer, nine days thereafter, payable in sixty days, this condition was waived, and the policy wás in force, notwithstanding this condition, until lawfully canceled, under this or some other condition contained therein, or under the option reserved in the sixth condition.

The note not being paid, and its makers being insolvent, the company, after waiting some forty-five days, canceled the policy, and notified the insured and the Charter Oak Co., and others ‘ interested, of the fact. This was in September. In December the loss occurred. This policy was good for one year, unless terminated lawfully. The sixth condition provided that the insured might terminate the insurance at any time on request, in which case the company should retain only the customary short rates for the time the policy had been in force. This is an unqualified right, reserved to the insured to terminate the policy at any time during the year for any cause. If the premium had been paid in cash, the insurer would have been compelled to refund the unearned premium after charging for the time the policy was in force at the customary short rates. As a note had been given, and was still in the hands of the payee, the insured could have terminated the policy, by paying or tendering the amount due, at short rates, and demanding a return of the note; but as no payment had been made, no money had to be returned by the insurer, under this clause. This right to terminate the policy, was mutual. The company reserved the option to at any time, put an end to the policy, “ on giving notice to that effect, and tendering a pro rata proportion of the premium for the unexpired term thereof.” In case the premium had been actually paid for the year, the pro rata share thereof from September 9, to the end of the year, must have been tendered back, before this option could be exercised. In the present case, no money had actually been paid. The company still held a past-due note, for the premium, on which there was due the amount earned to the date of cancellation. It was claimed, and the evidence tended strongly to support that claim, that this note was not Gollectible. The company credited $Y5 on the note, being the amount of the unearned premium, if the pro-rating is computed by months, and if the fraction of May, M days, and of September, 9 days, are counted as a month, but if the prorating is by days, that amount is too small by two or three dollars.

On this state of fact, the court in effect charged, that it was not necessary to tender back the cash, for the unearned premium, nor was the right to cancel defeated by a failure to credit the exact amount, or indeed any amount.

In this we concur. The effect of taking the note, was to give the policy life, notwithstanding the fifth condition, but it did not divest the company of its right reserved in the sixth condition to terminate the insurance at any time on giving notice, and, in case the premium had been paid, tendering back the unearned proportion thereof. As nothing had been paid, nothing was to be tendered back. The only duty imposed on the company, was, when the premium had not been paid, to give notice in reasonable time before the fire. This the jury found was done.

The contract of insurance is a contract of indemnity upon the terms and conditions specified in the policy. The insurer undertakes, for comparatively small premium, which good faith requires should be paid, to guaranty against loss or damage upon the terms and conditions agreed upon, and upon none other. He may, therefore, justly insist upon the fulfillment of those terms. We cannot make a new contract for the parties. Good faith is the life breath of the contract. The payment of the premiums is an essential element of the contract, to enable the -company to meet its obligations. Whatever may have been the right of the company before the maturity of the note to terminate the insurance for other causes, we think it clear, that after the note became due, and was not paid, this option might be exercised upon giving reasonable notice thereof, before the loss occurred.

Again, it is said, the amount credited on the note was too small. Concede this, the note was past due, and had not been negotiated. In any action brought thereafter for the earned premium, the correct credit could have been computed and allowed. This note was subject to such credit in whosever hands it should be found.

Judgment affirmed.


author: Okey, O. J.

text:
    Warner v. Tanner.
    T. and B. executed an instrument under seal, signed by two witnesses, and acknowledged by T. before a justice of the peace, in which, instrument it is convenanted that T. leases to B. two acres of land (described in the instrument), with the use of water in adjoining lands of T. and privilege of conducting it’in pipes “ to a cheese house to be erected on said premises, T. reserving enough water to accommodate the slock kept on the farms of T. And B. is to build a cheese house on the premises, and agrees to pay T. for the use of the premises and the privileges aforesaid,, thirty dollars per annum on the first day of October, in each year, while the premises shall be used as and for the manufacture of cheese; and when the premises shall no longer be used for such purpose, the premises, together with the privileges aforesaid, shall revert to T., said B. having the privilege of removing all buildings and fixtures put upon said premises by him.” Held, that this was a lease to B. for life, provided he continued to use the premises for the manufacture of cheese thereon and paid rents, with the right at any time to remove the buildings and fixtures placed on the premises by such lessee.
    Error to the District Court of Geauga County.
    Chester Tanner and Lucius Bartlett signed and sealed the following instrument: “ This indenture made at Chester, Geauga county, Ohio, this 1st day of February, 1861, by and between Chester Tanner of the first part, and Lucius Bartlett of the second part, witnesseth, that said Chester Tanner hath this day leased to said Lucius Bartlett'the following described premises.” Here follows the description, the premises containing two acres of land. “ And said Tanner also leases to said Bartlett the privileges of conducting the springs, and the use of the same, in pipes or otherwise, on the brook that crosses said premises, commencing at the spring at the roots of the chestnut tree, standing northerly of. the premises aforesaid, and all available springs, to a cheese house to be errected on said premises, said Tanner reserving enough water to accommodate the stock kept on the farms of said Tanner. And said Bartlett is to build a cheese house on said premises, and agrees to pay said Chester Tanner, for the use of said premises and the privileges aforesaid, the sum of thirty dollars per annum, to be paid on the first day of October, in each year, while said premises shall be used as and for manufacturing cheese; and when said premises shall no longer be used for such purpose, the premises, together with the privilege aforesaid, shall again revert to said Tanner, said Bartlett having the privilege of removing all buildings and fixtures put upon said premises by him.”
    The instrument was also subscribed by two witnesses, acknowledged by Tanner before a justice of the peace, and was delivered by Bartlett to the county recorder, who recorded it.
    Bartlett immediately entered into possession of the premises in pursuance of the instrument, erected thereon a cheese house, dwelling house and stable, and occupied the premises, conducted the business of manufacturing cheese thereon, and paid the rents regularly, from that time until his death, which occurred on December 27, 1874. The amount which he paid to Tanner on October 26, 1874, was in full of the rent to February 1, 1875.
    On January 22, 1875, Chester Tanner requested Warner, administrator of Bartlett, to remove the buildings and fixtures from the premises, and informed him that the lease was terminated from and after the expiration of the time for which rent had been paid.
    In February, 1875, Chester Tanner, with Brighton Tanner acting under his. authority, entered into possession of the premises, against the protest of Warner, administrator of Bartlett; and on February 17, 1875, Warner, as such administrator, brought suit against them in the court of common pleas of Geauga county.
    A verdict was rendered in favor of the administrator, on the issue joined, for $3,500, from which sum the administrator, on suggestion of the court, remitted $1,000, and judgment was rendered for $2,500.
    All the evidence is set forth in a bill of exceptions. There was no evidence tending to show that the value of the buildings, fixtures and personal property on the premises exceeded $1,000. It appears that the verdict was found principally on¡ the value of the lease, which the administrator claims the Tamners converted to their own use.

      The district court reversed the judgment, and this petition in error was filed by the administrator to reverse the judgment of reversal.

      Hurfee da Stephenson, for plaintiff in error.

      Tinher da Atvord, for defendants in error.
   Okey, O. J.

In the court of common pleas, the jury was charged, that the instrument executed by the parties was not a lease at will, nor for years, nor of perpetual duration; “ that said lease is not real property ; ” that it was a lease which continued and run for an indefinite and unlimited period, and so long as the lessee, or his assigns or personal representatives, should use the property covered by said lease for the purpose of manufacturing cheese thereonthat upon the death of 'Bartlett, the interest passed to his administrator and not his heir ; and that the administrator could maintain a suit against the Tanners in the nature of an action of trover for the conversion of the fixtures and the lease. To state such a position is to refute it. The only instance of a similar action which I remember, was met in Railroad Co. v. Robbins, 35 Ohio St. 531.

Leases may be at will, for years, for life, or of perpetual duration. Foltz v. Huntley, 7 Wend. 210; Taylor’s Land. & T. § 72. Indeed, they may be made for any period which will not exceed the interest of the lessor in the premises. And whatever the term, it may be subject to a condition, which is a qualification annexed to the estate by the grantor (Sperry v. Pond, 5 Ohio, 387; s. c., 24 Am. Dec. 296), or lessor (Foltz v. Huntley, supra), whereby the estate or term granted may, among other things, be defeated or terminated.

In this case the question as to the rights and interest which Bartlett acquired under the instrument, is one of construction. The fact that he was required to and did place upon the premises valuable structures, which he could only remove when the premises were no longer used for the manufacture of cheese thereon, satisfies us that this was not a lease at will nor a lease from year to year. On the other hand, the instrument contains no words indicating an intention to grant a fee in the premises ; and yet the construction which the court of common pleas placed upon it would render it, in effect, precisely the same as though the grant had been to Bartlett, his heirs and assigns. It would endure, according to that construction, until the premises were no longer used for the manufacture of cheese, or the lessee ceased to pay rent, precisely as in the case of a grant in fee with such condition. Having regard to the whole instrument, and not overlooking the fact that the right to remove the fixtures is, in terms, limited to Bartlett, we are satisfied that a lease for life was granted to him, subject to be defeated when the premises were no longer used for the manufacture of cheese thereon, or by the non-payment of rent. Hurd v. Cushing, 7 Pick. 169; Sperry v. Pond, supra; Foltz v. Huntley, supra; Bowles’ case, Tudor’s Lead. Cas. Real Prop. (2 ed.) 27-100 ; 4 Wait’s Act. & Def. 502. Indeed, it is well settled that if one grant an estate to a man and woman during coverture, or as long as the grantee or lessee shall dwell in such a house or use the premises for a specified purpose, as, for instance, the manufacture of cheese thereon, or for any like uncertain time, the grantee or lessee has in judgment of law a freehold. 1 Williams on Ex. (6 Am. ed.) 749; Taylor’s L. & T. § 52; Beeson, app., Burton, res., 12 C. B. (74 E. C. L.) 647 ; and see cases cited supra. The cases relied on by the plaintiff in error (White v. Fuller, 38 Vt. 194; Lewis v. Effinger, 30 Pa. St. 281; Cook v. Bisbee, 18 Pick. 527), are in no respect inconsistent with the view here stated; and the statutes and decisions relating to permanent leasehold estates in this state, which áre also cited and relied upon by the plaintiff in error, shed little light on the case.

The administrator of Bartlett had no right of action, except with respect to property merely personal, which may have remained on the premises when this suit was brought; nor had he a right of action with respect to such personal property, unless the Tanners converted it to their own use. Leases of land of a chattel quality are chattels real, and go to the administrator ; in other words, all interests for a definite space, measured by years, months or days, are deemed chattel interests, and, independently of statutory provision (Northern Bank v. Roosa, 13 Ohio, 334; 30 Ohio St. 285), go to the administrator; but he has no interest in a lease, like this, for a freehold term. See authorities cited in the last paragraph.

Judgment affirmed.


text:
    Railway Company v. Cronin.
    1. Under the act of March 31, 1874, entitled “an act to secure pay to persons performing labor and furnishing materials in constructing railroads ” (71 Ohio L. 51), a substantial compliance with the conditions of the statute providing for the service of written notice upon the owner of the road is essential to create any obligation on the part of such owner toward the person performing labor or furnishing materials, under a contractor or sub-contractor, or to give to such person any right of action ■against such owner.
    2. Where from the nature of the action defendant has notice that the plaintiff intends to charge him with the possession of a written instrument, formal notice to produce the same at the trial is not essential as a foundation for the introduction of parol testimony touching its contents.
    3. The limitation of time within which suits under this statute must be brought, applies to controversies arising between the contractor or subcontractor and the person furnishing materials or work, and not to rights of action on the part of the latter against the owner of the road.
    Error to tbe District Court of Ross County.
    The defendant in error commenced an action against the plaintiff in error, before a justice 'of the peace, on July 24, 1876. In his bill of particulars he states his cause of action in the following language:

      “ The said plaintiff, Dennis Cronin, says, that the firm of Spotts, Frank & Co., contractors for building a part of the Scioto Yalley Railway, was indebted to him, said Dennis Cronin, in the sum of $15.43, for work and labor bestowed by said plaintiff in grade-making upon the line of said railway. That said amount is yet due to said plaintiff, and is wholly unpaid. That on January 30, 1876, plaintiff filed with defendant, the Scioto Yalley Railway Company, a notice of said claim, in writing, in all respects complying with the requirements of the statute in such case made and provided: thereby m airing said claim a lien upon said railway, and said indebtedness payable from defendant to plaintiff. That said railway company has not paid said claim, or any part thereof, to said plaintiff ; wherefore plaintiff prays judgment against said railway company for said amount of $15.43 and interest thereon, from said 30th day of January, 1876.
    “ By Wm. E. Gilmore, Ms Atfy.”

    On the day set for the trial of the cause, the plaintiff in error, by its attorney, filed a motion to dismiss the action for reasons therein assigned, among which is the following, viz.:—
    “ Because there is no cause of action against the defendant alleged in the bill of particulars.”
    The motion was overruled by the justice, to which the plaintiff in error excepted.
    At a subsequent day the cause was tried to a jury, and after the evidence for the defendant in error, all of which is embodied in the bill of exceptions, was closed, the plaintiff in error moved the justice “ to withdraw said cause from the jury, and to dismiss said action, because there was no evidence offered on behalf of the plaintiff to make out a cause of action against the defendant, and because the testimony of the plaintiff showed that more than thirty days had elapsed between the alleged service of notice upon the company and the bringing of the action.” This motion was also overruled and exception noted.
    Plaintiff in error also asked the justice to charge the jury that they must find for defendant in case it should appear that the suit was not commenced within thirty days from the time the notice of the claim was served upon the company. This charge the justice refused to give.
    At the trial, after proof of service of the notice upon the company, parol evidence of its contents was given, against defendants’ objection, without showing that the written notice had been lost or destroyed, or that any demand had been made upon defendant for its production.
    The verdict and judgment were for plaintiff, and upon error the judgment was affirmed in the court of common pleas, and the action of the latter court was in turn affirmed by the district court.
    Harrison, Olds d? Marsh and Yanmeter ds Throelmorton, for plaintiff in error,
    insisted that, before Cronin was entitled to a judgment against the company for the full amount of his claim, he must have proven :
    1st. That the labor performed by him was stipulated for in the contract between the original contractor and the company.
    2d. That the aggregate amount of the indebtedness of Spotts, Frank & Co., for labor and materials, did not exceed ninety per cent, of the contract price for the same labor and materials in the contract between the first contractor and the company.
    3d. That there was due and payable from the company to its contractor, at least the amount of plaintiff’s claim at the time plaintiff filed his notice, or that such sum became due and payable after the notice was filed and before suit was brought.
    4th. That plaintiff gave the company notice of his claim within thirty days from the time he ceased labor; and,
    5th. The notice so given must have stated the kind and amount of labor performed by the plaintiff, the time when, the contractor or sub-contractor for whom, and the section and place where, on the line of the road the labor was performed, and the amount due him therefor.

      Wm. E. Gilmore, for defendant in error.
   Longworth, J.

The cause of action upon which suit was originally brought was created by the act of March 31, 1874 (71 Ohio Laws, 51), entitled an act to secure pay to persons performing labor and furnishing materials in constructing railroads,” and the solution of the questions raised in this court depends upon the proper construction of its terms. These questions we shall treat in the following order.

1st. Was the bill of particulars sufficient?

2d. Was parol evidence of the contents of the notice properly received ?

3d. Was the written notice sufficient under the statute 3

4th. Did the lapse of more than thirty days bar the right of action ?

I. The rules which govern pleading in courts of record at common law and under the code of civil procedure have never been strictly applied in proceedings before justices of the peace. From the earliest days a very liberal practice has obtained in this state in reviewing proceedings had before these officers when the question of their jurisdiction is not involved. A different course would be unreasonable and impracticable, and, to use the language of this court in Harding v. Trustees of New Naven Tp., 3 Ohio 232, “would not only destroy their usefulness but render them in a great degree deceptive and mischievous.”

In the case before us the bill clearly informed the defendant of the nature of the cause of action sued on, and the amount for which a recovery was sought. We are not disposed to quarrel with it, because it is not as complete in its statement of facts as might be required of it had it been filed as a petition in a court of record.

II. It is undoubtedly true, that secondary evidence to prove a fact cannot be resorted to until all sources of original evidence have been exhausted; and in general, where a written instrument is in the hands of an adverse party, its contents cannot be proved by parol until its production has been called for and refused. There are, however, as laid down by Mr. Green-deaf, three well-established exceptions to this general rule, and in which notice to produce is not necessary. First, where the instrument to be produced and that to be proved are duplicate originals; secondly, where the instrument to be proved is itself a notice, such as a notice to quit, or notice of the dishonor of a bill of exchange; and, thirdly, where, from the nature of the action, the defendant has notice that the plctimtiff intends to charge him with possession of the instrument. 1 Greenl. on Ev. § 561. See also 2 Phillips on Ev. 539, and cases therein referred to.

In the case before us the plaintiff’s right of action is created by the statute and depends upon the fact of written notice served. "Without proof of this no recovery could possibly be had. The bringing suit, therefore, apprised defendant that it would be necessary for plaintiff to introduce the written paper at the trial, which paper at the time was in defendant’s possession.

W e think the case clearly falls within the last exception to the rule quoted above, which seems to be founded in sound reason and common sense, in view of the fact that the law regards substance rather than mere form. The defendant being thus informed that plaintiff required this paper at the trial, no reason can exist for insisting that it should be a second time formally notified ,of this fact.

III. The statute provides that the notice shall be served upon the railroad company, “ within thirty days from the date that said person ceased fui-nishing said materials or laboring on ■said road as aforesaid, stating in said notice the kind and amount of materials furnished and labor performed, the time when, the contractor or sub-contractor for whom, and the section or place where on the line of the road said labor was performed or materials were furnished by him as aforesaid, and the amount due him therefor.” A' substantial compliance with these requirements is unquestionably necessary to create any liability on the "part of the company, their object being to apprise the company of all facts necessary to a thorough understanding of its rights and obligations in respect to its contractor, and the person furnishing the materials or labor under him, with the latter of whom it had, up to the time of notice, made no contract and assumed no obligation,

The notice served upon the company was as follows : — •

“To the Scioto Talley Railway Company: You are hereby notified that there is due to me, and unpaid, from Spotts, Frank & Co., contractors, the sum of fifteen dollars and forty-three cents, for work and labor bestowed by me in grade-making upon the line of said railway, between the Scioto river bridge and Main street, in the city of Chillicothe. I ceased to bestow said labor on the — :---day of-------1876, and less than thirty days from the time of filing this notice.
“Dennis Cronin.”

In this we find a substantial compliance with the conditions of the statute: the company is advised of the nature of the plaintiff’s claim, the character and value of the work done, the contractors under whom it was performed, the place where done, and that it wás finished within thirty days next preceding the notice. More than this it was not the intent of the legislature to require.

These notices are drawn up and served in most cases by unlettered men without the aid of counsel. To require a literal compliance with the terms 'of the statute would not only be objectless, but would in many cases defeat the very end and aim of the law.

IY. In answer to the claim that suit was not brought within thirty days, we have only to say that the limitation contained in the proviso relates only to disputes between the contractor and the claimant, and not to controversies between the claimant and the railroad company.

It is further urged that the plaintiff failed to make out a case by omitting to prove that the aggregate indebtedness of the contractor for the labor let by the company did not exceed 90 per cent, of the contract price. This fact, if it existed, would have constituted a defense fro tamlo, and might have been-shown by the company. It was not a matter necessary to be proved to make out a right of action.

It is also insisted that there was no evidence tending to show that Spotts, Frank & Co. were contractors upon the road, and that for this reason the case should have been arrested from the jury. To warrant such action there must be an absolute want of proof. In this case the notice served upon the company stated that Spotts, Frank & Co. were contractors, and the admission, by silence, of this fact on the part of the company, although evidence of the most meager and unsatisfactory character, was nevertheless proper to go to the jury in the absence of any other testimony upon the subject.

Furthermore, it appears from the record that this objection, although covered by the general assignment of errors in the petition filed in the court of common pleas, was not specifically alleged or brought to the notice of that tribunal. Although clearly within its power to have taken cognizance of this subject it was not bound to search for errors not specifically alleged, and its failure so to do will not necessarily be fatal upon review in the district court or here.

Judgment affirmed.