protesting against that mode of electing. The relator was eligible to the office, the mayor declared him duly elected, and the nine who did not vote protested against this decision. It does not appear, except inferrentially, that those not voting and protesting, had any objections to the relator, or that they expressed any preference for another, but only as to the mode of his election, and the number of votes, by which he was elected, these being less than a quorum voting. Until an organization was effected, the powers of members were limited to the duty of electing the proper officers. After organization and in the transaction of business, the council, or the majority of those composing it may determine when to act as well as how it shall act. Here the law determines when the council shall act. The only discretion the members have is as to the mode of electing, and the persons to be elected. The council is charged with an important public trust. It is essential to the exercise of that trust that a speedy organization should be had. "They (the members present if a quorum) shall forthwith proceed to organize," is the unmistakable language of the statute.

Where, as in this case, the question involved is difficult of solution, any system of parliamentary tactics, or any conduct of members, however well meant, calculated to defeat such an organization, or any construction of the statute, leading to such result, will not be favored, unless clearly required by the terms of the law.

The body was duly constituted, to hold an election of clerk, only one candidate was before it for the votes of members, no question entitled to precedence was before the body, the election was being held, and those declining to vote must be deemed to acquiesce in the choice of those who do, though protesting against the mode of voting, the decision of the mayor that there was a quorum, and that the relator was elected. This is the settled rule of the common law as to elections in corporate bodies. Wilcox on Corporations, section 546 says: "After an election has been properly proposed, whoever has a majority of those who vote, the assembly being sufficient, is elected, although a majority of the entire assembly altogether abstain from voting; because their presence suffices to constitute the elective. body, and if they neglect to vote, it is their own fault, and shall not invalidate the act of the others, but be construed an assent to the determination of the majority of those who do vote. And such an election is valid though the majority of those whose presence are necessary to the assembly protest against any election at that time, or even the election of the individual who has the majority of votes; the only manner in which they can effectually prevent his election is by voting for some oner qualified person."

The same rule is stated with equal force and clearness in the text of Grant on Corporations 71; Angell & Ames on Corporations sections 126, 127; 2 Kyd on Corporations 12, 13.

These citations are high authority and should suffice. We have, however, carefully examined

the authorities cited in support of the text, as well as numerous other cases. They constitute an unbroken chain, and leave no room for doubt as to what the rule is, as settled by the highest authority, both in England and in this country. Some of these cases, we will notice.

Oldknow v. Wainwright, or Rex v. Foxcroft, 2 Burr, 1017, was a feigned action to try the right of election to the office of town clerk of Nottingham; that is, whether one Thomas Seagrave, was duly elected clerk. The whole number of electors was twenty-five, all of whom were summoned to an election. Twenty-one assembled at the time and place. Thomas Seagrave was nominated. No other person was put in nomination. Nine of the twenty-one voted for him, but twelve of them did not vote at all, and eleven of them protested against any election at that time, because, as they claimed, the office was already filled, and one "suspended his vote." "Lord Mansfield saw no doubt in the case," so the report says. "Here was an assembly duly summoned; one candidate was named; no other was named; they had no right to stop in the middle of the election."

Upon a re-argument, Lord Mansfield confirmed his former opinion. "He said the protesting electors had no way to stop the election when once entered upon, but by voting for some other person than Seagrave, or at least against him; whereas, here they had only protested against any election at that time."

Mr. Justice Wilmot cited a case, where out of eleven voters, five voted and six refused, and the court had held: "That the six virtually consented." He also cited several other cases to the same point.

Lord Mansfield added: "Whenever electors are present and don't vote at all (as they have done here) they virtually acquiesce in the election made by those who do."

It would be difficult to find a case more like the one at bar.

This case was cited with approval by Denman, C. J., in Gosling v. Veley, 53 E. C. L. (7 A. & E.) 439; and again when the latter case was before the House of Lords, 4 H. of L. Cases 679.

In all the learned opinions in that justly celebrated case, the doctrine announced by Lord Mansfield, was approved, when limited to cases of elections, but it was held that where the question was the levy of a tax, or the transaction of other corporate business, a majority of those present must vote for it. In his opinion in that case, Baron Martin said, p. 739: But I think the proceedings for the election of members of a representative body or of corporate officers, are substantially different from the proceedings of the body itself in the transaction of business."

As to this distinction between business of a corporation and an election, Lord Mansfield is cited as saying, in The King v. Monday, that there was no way of defeating a candidate being voted for at a legal election, but by voting for some one else, and he adds: "But in the busi

ness of a corporation it is a different thing." The same question was again before the court. This principle is adopted in The Inhabitants of the First Parish v. Stearns, 21 Rich, 148. The court there says, in speaking of corporate elections and of the cases decided as to the effect of not voting: "The principle which runs through them all, and is founded in common sense as well as supported by authority, is, that a majority of the legal voters who choose to vote always constitutes an election. It has been holden that where a majority expressly dissent, but do not vote, the election by the minority is good." See, also, Booker v. Young, 12 Grattan 307, where the case of Oldknow v. Wainwright is cited with approval, in The King v. Bellringer, 4 Term 810. In that case Lord Kenyon says, in speaking of an election by a definite body: "It is not necessary that they should all concur in the election or other act done; but they must be present, and the election at such a meeting is in point of law an election by the whole.".

So far as we have been able to learn, the doctrine. laid down by Lord Mansfield and repeated in all the text books has never been questioned.

In holding, as we do, that the relator was duly elected, we do not contravene the well settled rule, that in all deliberative bodies, the majority must govern. We simply hold: that the law cast upon each member of Council, the duty of voting for some one-that by being present and keeping silent, when called on to vote, they are presumed to acquiesce in the vote given. This acquiescence creates the presumption that the choice of those voting is the choice of a majority of all present and not voting.

It is claimed by counsel for defendant that it is the well established rule of parliamentary practice that the mayor could not go beyond the roll-call, which shows only nine present, to determine that there was a quorum. This rule is claimed to be, that "When the roll call discloses the absence of a quorum, the chair cannot go outside of the record in deciding as to the presence of a quorum." Const. Man and Digest, 2d Session, 46th Congress, 338. The same Digest, page 103, lays down the rule as quoted from 2d Hastkell, page 125, 126, (a very high authority on this subject) as follows: "And whenever, during business, it is observed that a quorum is not present, any member may call for the House to be counted, and being found deficient business is suspended."

Whether the rule relied on is a rule adopted by the House of Representatives or is a decision upon parliamentary law made by the Speaker, we are not advised, nor is it necessary to inquire, as no such rule is made part of the law governing municipal corporations. We may add that we do not go outside of the record of the Council to learn that all the members were actually present.

We are not called on to discuss parliamentary rules which are adopted by deliberative bodies, for the convenient and orderly dispatch of busi

ness. They form no part of the statute laws of the State.

In the absence of any statute making such a rule part of the law of the land, we must look to the reason and object of the statute, as construed in the light of the well settled principles of the common law.

Judgment for the relator.
Boynton, C. J., was absent.
[This case will appear in 37 O. S.]

SUPREME COURT OF OHIO.

INGHAM & BROS.

V.

GEORGE LINDEMANN, ASSIGNEE, &C.

OCTOBER, 25, 1881.

1. Under the act of 1859 "regulating the mode of administering assignments in trust for the benefit of creditors," mortgaged chattels in possession of the assignor (mortgagor) pass to the assignee and become assets in his hands to be administered, notwithstanding the condition of the mortgage was broken before the assignment. Lindemann v. Ingham Bros., 36 Ohio St. 1, approved.

2. After the sale of such property by the assignee, under an order of the probate court, where an action is brought by the mortgagee against the assignee for the conversion of the property to his own use, reasonable attorney fees in defending the trust should be allowed to erty. the assignee from the proceeds of the sale of such prop

3. In determining the amount of such allowance, the court is not concluded by the amount actually paid or by the opinion of witnesses as to the value of the services.

4. No allowance should be made to such assignee for the expense of employing an auctioneer, unless the court directing the sale, is of opinion, under the circumstances, that the services of an auctioneer were necessary.

Petition in error to the Probate Court of Hamilton County, and cross-petition in error by defendants in error.

On the 2d day of April, 1874, Jacobi & Schoeule executed and delivered to Ingham & Brothers a mortgage upon certain goods and chattels, to secure the payment of four promissory notes, for $1,019.89 each, payable, with interest, at the rate of 8 per cent. per annum, in two, four, six and eight months, respectively, which mortgage was duly filed.

On the 29th of April, 1874, the mortgagors, who retained possession of the mortgaged property, executed and delivered to George Lindemann a deed of assignment, conveying among other things the mortgaged property, in trust for the benefit of their creditors, which trust was duly accepted and administered by Lindemann under the direction of the Probate Court of Hamilton County, in accordance with the statute in such case made and provided.

While the mortgaged property was in the hands of the assignee and before its sale by him, the mortgagees, notified the assignee of their mortgage and demanded of him the possession of the mortgaged property which he refused to transfer.

commenced an action in the Court of Common Pleas of Hamilton County against George Lindemann to recover the value of the mortgaged property, on the ground that he wrongfully converted the same to his own use. This action was defended on the ground that the alleged conversion was the due and proper administration of the trust aforesaid, in pursuance of the statute.

That action was finally determined in favor of the assignee by this court, and is reported in 36 Ohio St. 1.

Afterward, on the 12th of January, 1881, the final report of the assignee came on to be heard in the probate court, on exceptions filed thereto by Ingham & Brothers, and it was found by the court that the assignee was "entitled to and should receive an allowance of reasonable attorney's fees and counsel fees by him incurred and paid, in and about defending the said action of said Ingham & Brothers against him, the said George Lindemann, in the said court of common pleas, and for prosecuting his petition and suit in error to reverse said judgment of said court of common pleas in the district and supreme courts," which amount the court found to be $340, and ordered the balance, (less costs on exceptions to report), of said $1,767.94, to be paid to Ingham & Brothers.

To the allowance of attorney's fees, Ingham & Brothers excepted, and Lindemann, assignee, excepted to the refusal of the court to allow him from said fund the sum of $209, amount paid to auctioneers for selling the mortgaged property, and for fixing the attorney's fee at $340, the same being less than the amount actually paid by

him.

A petition in error and a cross-petition alleging the respective matters excepted to, have been allowed to be filed by the parties-the plaintiffs in error claiming that the probate court erred in allowing the defendant any sum on account of attorney's fees, and the defendant claiming that the court erred in not allowing a greater sum, and also in not allowing him fees paid to the auctioneers.

Yaple, Moos & Pattison for plaintiffs in error. McILVAINE, I

The arguments of counsel in this case have brought into review the decision in Lindemann v. Ingham, 36 Ohio St. 1, in which it was held, that, under the act of 1859, "regulating the mode of administering assignments in trust for the benefit of creditors," an assignee, who had come into possession of mortgaged chattels after condition broken and had sold the same under an order of the probate court, was not liable, in an action by the mortgagee, for converting the property to his own use. That in such case, the right of the mortgagee is transferred to the proceeds, and that the rule of non-liability is the same whether the proceeds of sale were greater or less than the mortgage debt. Without doubting that in the absence of the statute, the mortgagee after condition broken, would be entitled to the possession of the property as against the mortgagor or his assignee, a majority of the court are still

satisfied that by virtue of the statute, the assignee coming into possession of mortgaged property, by virtue of the assignment, has the right to administer the same under the direction of the probate court, whose duty it is, in distributing the proceeds, to adjust priorities of rights.

This construction of the statute being settled, it follows that the assignee should be allowed necessary and reasonable expenses incurred in. defending his right to administer the mortgaged property as trust assets. And this principle, applied to the case before us, authorized the court below, to allow the assignee a reasonable attorney fee, paid by him in defending the action brought by the mortgagees for the alleged conversion of the mortgaged property by him to his own use: And as between the plaintiffs and other creditors of the assignor, whose representative the assignee is, nothing can be plainer than that this experse should be paid from the proceeds of the mortgaged property.

By the cross-petition in error, the defendant claims, that, whereas the amount actually paid by him on account of such attorney's fees was $500, which sum, according to the testimony offered, was the fair value of such services, the court erred in allowing him a credit of $340 only. In making a reasonable allowance for attorney's fees, the court was not concluded either by the amount actually paid or by the testimony offered as to the value of the services. That testimony as to the value of such services should be considered by the court is clear enough, but it does not follow, that the court was bound to adopt the opinion of others as to the reasonable value of such services. If the mind of the court was not satisfied by such aid as was thus furnished, it was its duty to resort to such other information as practice and experience afforded, in connection with such proofs, for the purpose forming its judgment as to the real value of such services; and its judgment thus enlightened, and free from all suspicions of bias, should not be disturbed.

of

Nor was there error in refusing to allow to the defendant the compensation by him paid to auctioneers. A trustee, whose duty it is under the direction of a court to make sale of property, should perform the duties of auctioneer himself, unless in the opinion of the court the services of a professional auctioneer is deemed necessary. The presumption is that every one charged, by law, with the performance of a duty is capable of performing the same. And where such officer is allowed compensation for the performance of a duty, he must perform it himself, or employ others at his own expense. The suggestion of a usage or custom to the contrary is of no avail. The record does not show the existence of such usage or custom; but if it did, it could not have the force of law, as it is unreasonable that an estate, in ordinary cases, should be twice charged for the same service. It may be, no doubt, that peculiar circumstances will justify, in some cases, the employment of an auctioneer; but in such cases, the authority to make the employ

ment should be obtained from the court directing the sale. Here no such direction was given, and, it is to be inferred from the refusal to allow the expense, that in the opinion of the court, the employment in this case, was not necessary. Judgment affirmed.

WHITE, J., dissented, adhering to his dissenting opinion in the case as reported in 36 Ohio St. 1.

[This case will appear in 37 O. S.]

SUPREME COURT OF OHIO.

JAMES CULLEN ET AL.

V.

EZRA BIMM ET AL.

Oct. 25, 1881.

1. If a vendee refuse to accept personal property tendered in accordance with the terms of the contract of

sale, he is liable in damages for the difference between the contract price and its market value; and the fact that the vendor, against the objection of the vendee, made an invalid sale of the property to himself, and thereafter treated it as his own, does not change the rule, nor defeat the action, where the same is brought to recover damages for non acceptance of the property by the vendee.

2. In an action for refusing to accept a lot of ice containing several hundred thousand cubic feet, which by

the terms of the contract of sale was to be merchantable,

the court charged the jury that the plaintiff could not recover unless it appeared that the ice as a lot was of merchantable quality, "fit for the ordinary uses to which ice is put," and such as would "fairly pass in market :" Held, that in refusing to charge that all, that is, every part of the ice should be merchantable. the court did not err.

3. In such action, the derense being that the ice was not merchantable, a letter of the seller was offered in evidence to show a request to the purchaser to examine the ice. The letter contained a statement that the ice was not merchantable, which statemnet was corrected in a subsequent letter of the seller, also properly in evidence: Held, that the reception of evidence offered by the seller to show on what information the first letter was written, afforded no ground for a reversal of the judgment.

Error to the Superior Court of Cincinnati. August 8, 1873, Ezra Bimm and Christian Herchelrode brought suit in the Superior Corut of Cincinnati against James Cullen and Charles B. Russell, partners as James Cullen & Co. The cause was tried to a jury on the issues made by the petition, answer and reply, and a verdict was rendered at the March term, 1877, in favor of Bimm and Herchelrode, for $7,142. A motion. for a new trial was overruled and judgment was rendered on the verdict. A bill of exceptions was taken, embodying a portion of the evidence, certain requests for instruction to the jury, and the charge as given, with exceptions to the refusal to charge as requested, to the charge given, and to the reception of certain evidence. The judgment was affirmed in general term of the Superior Court, and on leave Cullen & Co. have filed this petition in error in this court.

The action was prosecuted on a contract in writing between the parties, dated July 14, 1871. By the contract it was agreed that Bimm and Herchelrode should, during the winter of 1871-2, fill their two ice houses, at Dayton, with ice

taken from their artificial lake, and have the same in readiness for Cullen & Co., by March 1, 1872, at which time the ice was to be measured, and Cullen & Co. were then to receive the keys of the houses and pay for the ice at the rate of one dollar and twenty-five cents for every fifty cubic feet. The same contract applied, on the same terms, to the ice taken from the lake in the winter of 1872-3, possession of the houses to be given and payment to be made on March 1. 1873.

In the petition it is alleged that the ice of 1871-2 was received and paid for by Cullen & Co. on March 1, 1872, and that this action is prosecuted for their refusal to receive the ice of 1872-3. Performance of the stipulations of the agreement, on the part of Bimm and Herchelrode, and a resale of the ice at public auction, after notice to Cullen & Co., are alleged, and it is stated that on measurement of the ice in the houses, on March 1, 1873, in pursuance of the contract, the number of cubic feet was found to be 395,988. The ice having at such resale brought a much less sum than the contract price, judgment is asked for the difference, and the petition also contains allegations sufficient to warrant a recovery of damages for a refusal to accept or pay for the ice.

Cullen & Co. admit that, on March 1, 1873, thay refused to receive the ice then in the houses, but they aver, as a reason for such refusal, that it was inferior, and not such as they contracted to receive. As a part of their answer, they also filed a counter-claim, in which they seek to recover damages for defect in quality and deficiency in quantity with respect to the ice received March 1, 1872; but by consent of parties this counter-claim was docketed as a separate

case.

McGuffey, Morrill & Strunk and George Hoadly for plaintiffs in error.

Young & Gottschall and Stallo & Kittredge for defendants in error. OKEY, J.

The record does not purport to contain all the testimony. We must assume, therefore, that the verdict was supported by sufficient evidence, and simply inquire whether there was error in matter of law.

1. Whether Bimm and Herchelrode could have held the ice for Cullen & Co. and recovered the contract price, is a question which we need not determine. Hadly v. Pugh, Wright 554; Dayton, etc. T. Co. v. Coy, 13 Ohio St. 84, 90; Shawhan v. Van Nest, 25 Ohio St. 490; Benjamin on Sales (2 Am. ed.) § 788, bear upon it. Assuming that there was a breach of the contract on the part of Cullen & Co., Bimm and Herchelrode had at least two remedies, either of which. they might pursue. They could treat the property as their own, and if its market value, at the time of the breach, was less than the contract price, they might by action recover the difference and a sum equal to the interest; or, after notice to Cullen & Co., they could sell the ice, on the theory that the property in,

but not the possession of the ice had passed to them, and if the amount thus realized was less than the contract price, they could by action recover such deficiency and a sum equal to the interest thereon. In the petition a recovery is sought upon the ground that there had been such resale and was such deficiency; but it appears the real transaction was a resale by Bimm and Herchelrode to themselves at thirty cents per ton. Whether a purchase by an agent or trustee at his own sale is, in the absence of statutory provision. void or only voidable [as to which see Eastern Bank v. Taylor, 41 Alabama, 93; Bassett v. Brown, 105 Mass. 551; Wadsworth v. Gay, 118 Mass. 44; Marsh v. Whitmore, 21 Wall. 178; 1 Williams' Ex. (6 Am. ed.) 719, 720, note] is a question which we need not determine, for Cullen & Co., upon being informed of such resale, objected to it, and thereby effectually avoided it. The pleadings, however, are clearly sufficient to warrant a recovery according to the facts, which are, that Bimm and Herchelrode treated and disposed of the ice as their own, and that the market price was less than the contract price on March 1, 1873. The fact, relied on by Cullen & Co., that, subsequently to March 1st, the market price of the ice advanced beyond the contract price, is of no importance. Bimm and Herchelrode were entitled to the benefit of such advance. Bridgeford v. Crocker, 60 N. Y. 627; Hayden v, Demets, 53 N. Y. 426; Quick v. Wheeler, 78 N. Y. 300. Nor can Cullen & Co. maintain the further positions they assume, that by making such resale, Rimm and Herchelrode converted the property of Cullen & Co. to their own use, or became their trustees. Objection to such resale having been made by Cullen & Co., it be. came and was wholly invalid; and hence Bimm and Herchelrode were not, and in reason could not be, in any worse position than they would have occupied, if no attempt had been made to resell the ice.

2. The contract required that the ice should be merchantable. But the court refused to charge, as requested by Cullen & Co., that "unless the plaintiffs have proved by a fair preponderance of testimony, that all the ice contained in the ice houses of the plaintiffs, at Dayton, and tendered to the defendants, and by them refused, was, on March 1, 1873, merchantable ice, they cannot recover." To this refusal, Cullen & Co. excepted. Evidence was offered tending to show that the two top tiers of ice in both houses contained impurities, and were only fit for cooling purposes; but evidence was also offered to show that those tiers are never intended for consumption, and that they usually melt before any ice is removed from the houses. It also appeared that some other parts of the ice were not wholly free from impurities.

In view of the evidence and the charge given, we think the court properly refused the charge requested. The jury must have found that the top layer and the layer next to it, in each house, was not intended for consumption, and that they melted before Cullen & Co. would have had

occasion to remove any ice from the houses. And the existence of impurities in some other portions of the ice did not necessarily render the lots sold unmerchantable. In determining whether property like this is merchantable, some regard must be had to quantity. The rule upon the subject may be illustrated by a familiar example. Thus, if A sells to B six sound apples, the tender of six apples, one of which is to any extent unsound, may not be a compliance with the contract; but where the sale is of a barrel of sound apples, the tender of a barrel of apples might be a compliance with the contract, although one apple in the barrel was to some extent unsound. Large lots of ice entirely free from impurities perhaps cannot be found. The court said to the jury the contract, as to the character of the ice, was complied with on the part of Bimm and Herchelrode, if the ice, as a lot, was of a merchantable quality, "fit for the ordinary uses to which ice is put," and such as would "fairly pass in market, not alone at Dayton, but everywhere." This was a proper construction of the contract. Hamilton v. Ganyard, 34 Barb. 204, S. C. 3 Keyes, 45. Indeed, the expression in the contract that the ice must be merchantable, is only what the law would have required in the absence of such express provision. Benjamin on Sales, [2 Am. ed.] § 656; Leake on Contracts, 407. As the evidence is not set forth, we must assume that the ice was merchantable, within the rule stated by the court.

3. The remaining objection is the alleged error of the court in permitting John W. Herchelrode, son of one of the plaintiffs below, to testify what information he gave his father, the father having testified that he wrote a certain letter-offered in evidence on information given to him by his son. In order to determine as to the force of the objection, it will be necessary to set forth certain matters appearing in the record.

On December 4th, 1872, the plaintiff, Herchelrode, wrote to Cullen & Co., at Cincinnati, which was their place of business: "My son reports the ice six inches thick. * * * I am told it is not very clean-could not be called merchantable. ** I think it will pay you to come up by first train to-morrow, and see the ice and its condition. Mr. Bimm is of the same opinion. **We may secure the ice on our own account, should you not agree to have it put up in its present condition." "Our

*

On the next day Cullen Co. answered: contract calls for ice not less than six and onehalf inches, good merchantable ice. Of course we want that kind of ice if we can get it."

แ

On December 16, 1872, Bimm and Herchelrode wrote to Cullen & Co.: "We have been cutting ice on Friday and Saturday, and find it to be very nice and clear. We were quite disappointed to find it so clear. It is about nine inches thick. ***If you think best to come up and see the quality while we are at work, it may satisfy you much better than our writing. * would like to have your opinion."

We