Imágenes de páginas
PDF
EPUB

have been elected. The statute operates upon the election and upon the office. It holds the one void and the other vacant. As a result it excludes the person from any benefit under the election which his unlawful acts have rendered of no effect, but it does not award punishment. The vice which enters into the election, and renders it void, is the misconduct in reference to that particular election of the person who claims a benefit under it. He has violated the implied interdict of the statute by attempting to promote his election by impure and immoral acts, having a tendency to corrupt the voters, and prevent a fair and legal election. Upon every principle of justice and fairness he should be prevented from reaping an advantage from his own wrong.

A question much discussed is as to whether the statute should be treated as imposing a test of ineligibility, or as providing a method of removal. The matter may be not free from doubt. Possibly the provision involves both characteristics. But the better conclusion, we think, is that the intent of the legislature was, not to provide a method by which a person lawfully elected to an office may be removed therefrom, but rather a method by which the title of one to an office which he has obtained possession of in violation of the terms of the statute upon which his claimed right vests may be inquired into. It is, therefore, a challenge of the title to the office, resting upon charges of misconduct in procuring it, rather than a process to remove, resting upon charges of misconduct in office. Our conclusion with respect to the effect of section 4 of article 5 is that, if the framers of the constitution had intended to deny to the general assembly the power to render void an election because of illegal acts by the successful candidate, done for the purpose of promoting his election, they would have declared that purpose in unequivocal terms, and would not have left such result to depend upon doubtful implication. We have already found that there is no clear expression of such an intent. It follows that the provisions of the corrupt practices act involved in the case before us do not contravene section 4 of article 5 of the constitution. Nor are the provisions of the statute in conflict with either article 5 or with section 4 of article 15 of the constitution. The former article provides who may be electors, and that electors shall be entitled to vote at all elections. Section 4 of article 15 is: "No person shall be elected or appointed to any office in this state unless he possesses the qualifications of an elector." But it does not follow from this that every person who has the qualifications of an elector shall be eligible to any office in the state. The well-settled rule is that, while the legislature is without power to deny or abridge a constitutional right of a citizen to vote or to hold office, nevertheless laws to regulate the exercise of the elective franchise, if reasonable, uniform, and impartial,

and calculated to facilitate the exercise of the right, are clearly within the legislative competency; and decisions to the effect that qualifications upon the right to take office, other than the one imposed by the section quoted, are constitutional, are numerous. State v. Crooks, 7 Ohio, 509; State v. Covington, 29 Ohio St. 102. At page 118 it is remarked by Mellvaine, J.: "If the framers of the constitution had intended to take away from the legislature the power to name disqualifications for office other than the one named in the constitution, it would not have been left to the very doubtful implication which is claimed from the provision under consideration. The power under the general grant being ample and certain a statute should not be declared void because in conflict with an alleged implication, unless such implication be clear and indubitable." It may be added that there are implied disqualifications. A person may not hold incompatible offices,-as an officer who presents his personal account for audit and officer who passes upon it, or sheriff and justice of the peace, or governor and member of the general assembly, or, as held in State v. Taylor, 12 Ohio St. 130, the office of director of county infirmary and superintendent of the infirmary. The list might be indefinitely extended. No duty enjoined upon the general assembly is higher, or of greater general interest to the commonwealth and the individual citizen, than that of securing, within constitutional limits, the full, untrammeled right of the elector to vote, to have that vote counted, and not neutralized by an illegal vote, and securing, in addition, a fair expression at the ballot box of the public voice freed from corrupting influences. And where this duty has been attempted by legislation calculated to secure these rational and desirable ends, courts will interfere with its operation only upon the clearest and most unquestioned conviction of its invalidity. A mere doubt is not sufficient. We are of opinion that the provisions of the act involved in this case are not in contravention of any section of the constitution, at least not clearly so, and are valid.

2. The right to a jury. Our constitution declares that the right of trial by jury shall be inviolate. This means the right as it existed in this state at the adoption of the constitution of 1802. Not that every question of fact was to be tried by a jury; only questions of fact in certain classes of cases. The distinctions indicated by our statutes, and by practice from the organization of the state, show this. Code, §§ 263, 264; 51 Ohio Laws, 100; Rev. St. §§ 5130, 5131. The right applied only to common-law courts, and in actions involving life, liberty, or the right to private property. Willyard v. Hamilton, 7 Ohio, 398. And we regard it as safe to say that there never has been a statute in Ohio authorizing a jury, nor will there be found a reported case in this state where a jury

was called, or held to be proper, in a suit to determine title to an office; certainly none has been cited. We suppose the reason to be plain. A public office is a trust held for the benefit of the public. The incumbent, if he performs the duties, may be entitled to the emoluments, but he cannot have, under our governmental system, any property in the office itself. State v. Hawkins, 44 Ohio St. 98, 5 N. E. 228; and see especially remarks of Minshall, J., on pages 110 and 113. 44 Ohio St., and pages 233, 234, 5 N. E., and the cases there cited. There being no property right involved in the inquiry, a jury cannot be had in an action to try title to an office. Contrary holdings have been made in other states by courts of high repute, but we think the law of Ohio is clearly as held by the circuit court. The question is not a new one in this court. In State v. Blood (quo warranto) a demand for a jury was made March 25, 1887, and argued by eminent counsel. The demand was refused. 17 Wkly. Law Bul. 290. The case was then referred to a master to take testimony, but was finally dismissed by relator, and for that reason was not reported.

Other questions of procedure are argued, but we do not regard them of sufficient importance to warrant comment, except to say that we find no error. Judgment affirmed.

BANEWUR et al. v. LEVENSON. (Supreme Judicial Court of Massachusetts. Suffolk. April 12, 1898.) CONTRACTS-CONSTRUCTION- RESCISSION-BREACH -DAMAGES-AVOIDABLE CONSEQUENCES -ACTIONS-Burden of PROOF.

1. The owners of goods under attachment procured the assent of creditors to settle. A writ ten statement was signed by the owners, wherein certain things which another signing the statement would do were set out, which person agreed orally to furnish money to pay the creditors, and gave the first creditor his covenant to pay the others. Held, that the contract was not limited to the written statement.

2. A party relying on the execution of a written agreement as an abandonment of a previous oral agreement assumes the burden of proof.

3. Subsequent to an oral agreement, the parties made an indenture as to its subject-matter, which was to be signed by third persons as parties thereto. The third persons never signed, and the indenture remained incomplete. Held, that there was no rescission of the oral agreement.

4. In an action for breach of contract to procure the release of goods from attachment by furnishing money to pay creditors, it was no defense that defendant had replevied the goods, and been adjudged to return them.

5. In such action defendant claimed that he had made himself liable to damages for failure to return the goods to the officer on judgment for return. It was uncertain whether plaintiffs would receive any benefit from such damages. Held, that a reduction in plaintiffs' damages could not be allowed.

6. Defendant agreed to extinguish debts of plaintiffs for $2,400, by paying $800 to creditors, thereby releasing plaintiffs' goods from attachment. The agreement was not carried out, and an action for the breach was insti

tuted. Held, that plaintiffs were not required to show that they tried to procure another to assume defendant's undertaking.

7. Defendant agreed to pay plaintiffs' creditors to procure a release of attachments, and hold the attached goods as security for his reimbursement. He failed to carry out the agreement, and obtained possession of the goods under a title adverse to plaintiffs. Held, that he was not liable for the value of the goods, in an action for breach of the agreement.

8. In an action for breach of contract to furnish money to discharge debts of plaintiffs for $2,400, by paying $800 to creditors, who had agreed to settle for that amount, which was to be repaid to the party furnishing the money, the measure of damages is the difference between the whole amount of the debts and the sum for which defendant could have discharged thèm.

Field, C. J., and Holmes and Lathrop, JJ., dissenting.

Exceptions from superior court, Suffolk county; Dewey, Judge.

Action by one Banewur and others against one Levenson for breach of contract. Verdict for plaintiffs. Defendant excepts. Exceptions overruled on condition of remittitur.

S. L. Whipple and J. Bon, for plaintiffs. J. E. Young, for defendant.

BARKER, J. The exceptions relating to the count in tort are now immaterial. The verdict is upon a count in contract, not set out in the bill of exceptions, but a copy of which is with the record transmitted to the chief justice. The defendant contends that the case should not have been left to the jury, and that the instructions given as to the different defenses and to the measure of damages were wrong. The case seems to have been submitted to the jury by the presiding justice, with the assent of both parties, upon issues not strictly defined by the pleadings; and we consider the questions raised as if the pleadings, which have been repeatedly amended, presented the issues which the presiding justice, in his charge, directed the jury to try and to decide, the arguments in this court having been upon the issue so raised. In the course of the charge, the real issue upon which the jury were to pass was thus stated by the presiding justice: "The plaintiff's say: * 'We found our creditors willing to assent. We had the advice of our friends, that that was a proper settlement to make. Mr. Levenson agreed with us to furnish the money -$800 to settle with the creditors, and thereupon take our property into his hands, and hold it as security for the $800 which he advanced, for the $100 which he was to receive for his compensation, and for the $100 which was reckoned as probable or as to be incurred in the way of costs.' Now, they must satisfy you, of course, by the preponderance of the evidence, that such a state of things existed." The plaintiffs contend that their case is this: They were dealers having a stock of goods, and owing $2,400, which

they could not pay. Creditors had sued, and the stock of goods was in possession of an officer under attachments. All the creditors were willing to take off the attachments, and to release the plaintiffs from the debts upon receiving 33% per cent. of their claims. Thereupon the defendant orally agreed with the plaintiffs to furnish $800 and a further sum of $100 for expenses, and with this sum to extinguish the plaintiffs' debts, and for his services he was to have another $100. Upon the release of the attachments, he was to have possession of the stock of goods, until he should be reimbursed and paid the sum of $1,000 made up as stated. The defendant has furnished no money, and has paid none of the debts, but has got possession of the stock of goods, and has refused to restore them to the plaintiffs. The defendant was not unable to perform his agreement by reason of the refusal of any creditor to accept the percentage. The verdict found upon this contract, and its breach was rendered under instructions which allowed the jury to give damages because the plaintiffs' debts of $2,400 were not extinguished at a cost to them of $1,000, and for loss upon the stock of goods which the defendant got possession of by other means than through the performance of his contract.

1. The first contention now made by the defendant in support of his exceptions is that there was no evidence of a contract between the plaintiffs and the defendant, and that the only contract which he made was with the creditors. The evidence tended to show that the first attachment was made on November 17, 1892, and that other creditors made successive attachments; whereupon the plaintiffs visited their creditors, and secured from most of them an agreement to accept the 33% per cent. After this, there was a disagreement between the plaintiffs; and friends were called in, who made a written statement, communicated to and signed by each of the plaintiffs. This statement contained several particulars as to what the defendant was to do, and he was one of the persons who signed it; and, when it was communicated to and assented to by the plaintiffs, he stated orally that he would furnish the $800 for settlement with the creditors; and not long after he gave to the first attaching creditor his covenant to pay each of the plaintiffs' creditors the percentage of their respective claims, and the legal expenses. This evidence, with the auditor's report, was enough to justify the finding that the defendant did make an oral contract with the plaintiffs. It was natural for him to agree with the creditors to pay them their percentages and expenses after he had made that agreement with the plaintiffs.

2. The defendant next contends that, if there was a contract between himself and the plaintiffs, its terms must be found in the statement of the friends who were called in as before stated, and that the delivery of the

stock of goods to him was a condition precedent, which was to be performed by the plaintiffs, and which precludes their recovery. But the terms of the contract might be found outside of the writing.

3. The defendant also contends that the plaintiffs cannot recover upon the oral contract, because it has been abandoned and rescinded by the parties. Such a defense must be established by proof, and the burden of proving it is upon the defendant. The evidence tended to show that, some weeks after the defendant had covenanted to pay the creditors their percentages and legal expenses, the plaintiffs and the defendant signed an indenture under seal, of three parts, in which they were the party of the first part, the defendant was the party of the second part, and the creditors the party of the third part; but no creditor ever assented to it. This indenture purported to convey all the plaintiffs' property to the defendant in trust to reduce it to money, and to pay preferred claims, and distribute the rest ratably among the creditors, and to release the plaintiffs from their debts. The presiding justice ruled that this indenture could not be relied upon as a defense, because, never having become complete by the signatures of the creditors, it remained inchoate and of no effect. We think this ruling right. As presented at the trial, the question was not whether the jury might infer from the execution of the indenture by the plaintiffs and the defendant an actual previous abandonment and rescission of the previous oral agreement, but whether the indenture itself, in the condition in which it was put in evidence, unexecuted by the creditors, worked such a rescission; and it did not.

4. The defendant further contends that a suit in which he has replevied the goods from the attaching officer, and has been adjudged to return them, is a defense. We cannot see that these transactions bar the plaintiffs' action for breach of the defendant's contract. He, and not the plaintiffs, was to procure the release of the goods. The plaintiffs were not to deliver them to him. That he has chosen another course, which is in violation of his contract, and has placed him under obligations to third persons, is not a defense to the plaintiffs' action for his breach of his contract with them. Nor do we see how the fact that the defendant has made himself liable to the attaching officer in damages for the failure to return the goods to the officer upon the judgment for a return could be considered in reduction of damages in the present suit. If a possible problematical future result of the wrong which the defendant did to the attaching officer in replevying the property when the latter was entitled to its possession may be the payment of some debt of the plaintiff, the defendant cannot offset that contingent future benefit against the

[ocr errors]

damages caused to them by his own breach of contract. It is wholly problematical whether such a result will ever follow.

of the debts for which they were left liable, but also the excess of value of the goods, if any, above the sum which under the contract they would have been obliged to pay the defendant to redeem them. But, upon the case as it appears, the plaintiffs' damages should have been limited to the difference between the whole amount of the debts which the defendant was to discharge and the sum which the defendant was to pay the creditors and which the plaintiffs were to repay him to redeem the goods. This difference was stated by the judge in his charge to be $1,400, and does not seem to have been in dispute. We can safely assume that this sum, with interest from the time of the transaction early in February, 1893, was awarded by the jury as a part of their verdict for damages. The excess above this they must have allowed on account of the goods. The decision of the majority of the court is that if the plaintiffs elect to remit in the superior court so much of the verdict as is in excess of $1,400 and Interest from February 15, 1893, a new trial will not be necessary; otherwise, the entry must be, exceptions sustained.

5. The final contention of the defendant is that the plaintiffs cannot recover the whole amount that they expected to gain by the contract, unless they can show that, after the defendant neglected to furnish the money, they used diligence in trying to get it elsewhere. If the contract had been merely to furnish them with $800 as a loan, damages for the loss which the plaintiffs suffered in not having their debts canceled and discharged would have been too remote. But the contract which the plaintiffs asked the jury to find was not a contract to lend them money, but that the defendant would himself apply his own money in a certain way, and so release their property from attachment and the plaintiffs from debts of three times the amount of the money to be used. The breach of the contract was not in a failure to lend to the plaintiffs $800, but in the failure to extinguish for them debts to the amount of $2,400, and to relieve their goods from attachment. Having made that bargain with him, they were not required, in order to recover damages for its breach, to prove that they tried to procure someone else to stand in his shoes. No such question seems to have been raised at the trial, and the question what would be the measure of damages for breach of a contract to lend money is not open. But we are of opinion that there was an error in the instructions upon the question of damages. It appears from the bill of exceptions and the finding of the jury that no part of this contract between the plaintiff's and the defendant was ever performed. The plaintiffs' case was finally allowed to stand only upon the count in contract, and the jury were not permitted to consider the count in tort for a conversion of the goods. The defendant would be accountable for his goods under his contract only if he received them under the contract. The instructions to the jury, as well as the facts set out in the bill of exceptions, tend to show that he never received or held them under the contract, but that he obtained them under a title adverse to the plaintiffs, and held them as an assignee of the mortgage, and replev-ments, that he (the defendant) would then fed them as his own, claiming under that title. If the contract was never executed by either party in respect to the possession or ownership of goods, and if the defendant never received or held them under the contract, the plaintiffs cannot recover any part of their value under this count for a breach of the contract, but must seek their remedy otherwise for the defendant's interference with their property. If the defendant had held the goods under the contract, they might have recovered, not only the difference between the amount which it would have cost them to pay their debts if he had performed his promise and the full amount

FIELD, C. J. (dissenting). I am unable to assent to the opinion of a majority of the court. If this case had been tried, as the exceptions state, upon the amended or substituted count in contract, which is annexed to the exceptions, it is plain that the evidence did not support the count. It is alleged in that count that the plaintiffs "entered into a certain agreement with the defendant, whereby the defendant agreed with the plaintiffs that, if the plaintiffs would convey to him, the defendant, all their right, title, and interest in and to said stock of goods and fixtures, he, the defendant, would thereupon immediately raise a sum of money, not exceeding eight hundred dollars ($800), to pay the said attaching creditor, and discharge said attachment, and would thereafter assume to pay, and would pay, immediately, as soon as might be, to the remaining creditors, the respective debts of the plaintiffs, to each of said creditors, and, after deducting the sum of two hundred dollars ($200) for his own services and disburse

pay to the plaintiffs, in equal parts, share and share alike, the balance of the proceeds of said goods; that the plaintiffs thereupon did convey unto the defendant all their right, title, and interest in and to said stock of goods and fixtures, which stock of goods and fixtures he had received." There was no evidence that the plaintiffs conveyed to the defendant all their right, title, and interest in their stock of goods. It is true that the stock of goods was under attachment, and that the plaintiffs had given a mortgage upon the stock for $2,000 to one Woronoff, which they say was without consideration, and was giv en by them in order to prevent attachments;

but they still could have conveyed to the defendant all their right, title, and interest in the stock, subject to the attachments and to the mortgage, if that had any validity. As the plaintiffs did not do this, they proved no cause of action under this count. It was said by the plaintiffs' counsel at the argument, and, as I understand, it was conceded, that the case actually was tried upon an amendment to this count; and such an amendment appears in the copy of the pleadings. That amendment is as follows: "Second Count. Prior to the 17th day of November, 1892, the plaintiffs had been co-partners, carrying on the business of clothing and dry-goods dealers, under the firm name of the Columbia Supply Company, at Canton, Massachusetts. On said 17th day of November, their stock of goods and fixtures were attached upon a writ against them in favor of Charles Green & Company, who were creditors of the plaintiffs to the amount of about six hundred dollars ($600), on which writ a deputy sheriff took and held all of said plaintiffs' goods and fixtures. The plaintiffs were without ready funds to liquidate the claim upon which said attachment was made, and were unable to meet other obligations which had matured and were maturing. Thereupon, by advice of the defendant, the plaintiffs procured from all their creditors an oral agreement to accept thirty-three and one-third per centum of their respective claims against the plaintiffs, in full settlement and discharge thereof; that the sum of money required to effect said settlement with creditors was about eight hundred dollars ($800). In order to raise said $800 immediately for the purpose of settlement with creditors, the plaintiffs entered into a certain agreement with the defendant, whereby the defendant agreed with the plaintiffs that he would advance to them (the plaintiffs), or on their account, the sum of $800, for the purpose of settlement with all the creditors, thereby securing the dissolution of the attachments already on said goods, and in full and complete discharge of the plaintiffs from their said debts; that the defendant should then receive said goods discharged from attachment as aforesaid, and hold the same in pledge to secure the repayment to him by the plaintiffs of said sum of $800 and an additional sum of $200; and that he (the defendant) would not proceed to sell the same without the consent of the plaintiffs, and would give the plaintiffs reasonable opportunity to redeem the same; that, after payment to him by the plaintiffs of said $1,000, he would return to the plaintiffs said goods and fixtures. The plaintiffs agreed that the defendant should advance the sums aforesaid for the purposes aforesaid, and that the defendant thereafter should hold said goods in pledge as security for the repayment to him of said aggregate sum of $1,000; but the defendant has utterly failed to keep his part of said agreement, to wit," etc. The gist of this amended

count, I think, is that the defendant agreed with the plaintiffs to advance to them the sum of $800 for the purpose of a settlement with their creditors, which the creditors had agreed with the plaintiffs to receive in discharge of the indebtedness; and that the plaintiffs agreed that, when the debts were discharged and the attachments dissolved, the defendant should receive from the plaintiffs their stock of goods, as a pledge to secure the repayment of this $800 and the payment of the further sum of $200; and that, although the plaintiffs were ready and willing to perform their part of the agreement, the defendant failed to perform his part. If the defendant undertook to pay the money to be advanced directly to the creditors, this was only as a means of insuring the proper application of the money, and the transaction intended was still of the nature of a loan to the plaintiffs. This, I think, also is the substance of the agreement which the presiding justice understood that the plaintiffs contended that they had made, and had introduced evidence of at the trial. In his charge he states this agreement as follows: "And, in this agreement or arrangement which they say they made, it is not claimed that Mr. Levenson took upon himself the responsibility of procuring that the creditors should be willing to settle for 33% per cent. The arrangement with him went along upon the assumption that the creditors were willing. The plaintiffs claimed that the creditors had all been seen, and had expressed their willingness, and that most of them, if not all, had signed a paper to that effect, which has been put in evidence; and it is not claimed that Mr. Levenson undertook that the creditors should be willing to take 33% cents. He left that for the plaintiffs, but he undertook to pay them 33% per cent. upon the assumption that they (the creditors) were and would be willing to take it. And so the plaintiffs, if they have a case against Mr. Levenson, have upon them the duty of satisfying you that, as a matter of fact, the creditors were willing to take the 33% per cent., and that no obstacle-serious obstacle-existed on that score, and to the settlement being made in the manner proposed. The plaintiffs say that was the condition of things: 'We found our creditors willing to assent. We had had the advice of our friends that that was a proper settlement to make. Mr. Levenson agreed with us to furnish the money-$800-to settle with the creditors, and thereupon take our property into his hands, and hold it as security for the $800 which he advanced, for the $100 which he was to receive for his compensation, and for the $100 which was reckoned as probable or as to be incurred in the way of costs." The trial apparently took a wide range, as evidence was introduced upon a count in tort for a conversion of the goods, but, at the close of the evidence, the court ruled that the plaintiffs could not recover upon a count for a conversion, and the case went to the jury upon the evidence introduced

« AnteriorContinuar »