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by C.

pay to

half,” which they were to have on the upper by W. to give time, it must appear that his promise to side of the farm, and the same as to Mace on the

give time was so definite in its terms as to be enforceable lower side? The devise to Mace was “the equal 3. The mere fact that in pursuance of bis promise, C. one-half” of the land described in the 8th Item of had for several years annually paid interest at ten per the will. The title of Mace rests in this clause, cipal

, dues not raise the presumption of such a pre-exist

cent., and had not been pressed for payment of the prinand by its terins the interest devised to him ing modification of the original contract, as the statute was as clearly an undivided "equal half” as if the requires. language of Item 8 of the will had been re

4. Payments of interest, made in pursuance of said

promise, while the ten per cent. statute was in force, are peated. And in disposing of the "other one- binding upon C., but payments made afterward, in exhalf” the language is still more emphatic. The cors of six per cent. are to be applied to the principal. “other one-half," which is here devised to Hays parted with the note, and contained in a contract with

5. The written statements of B., made after he had and Corwine, is described as the same which

W. concerning the same, tending to show the alleged was “ described in Item 8th, and by said 8th consideration for C.'s promise, are not admissible in this Item of said will devised to James W. Hays, Pe

action against C., though B. was dead, it not appearing ter B. Hays and John Hays." What was devised

that C. was a party to, or had notice of, said contract be

tween B. and W. to James W. Hays, Peter B. Hays and John Error to the District court of Butler County. Hays by the 8th Item? After giving to Jacob Mace "the equal undivided one-half” of the

The plaintiff in error brought an action to Claypool land, the 8th Item devised to James, “$1,000.

recover a balance due on the following no Peter and John Hays “the remaining one equal

HAMILTON, April 16, 1061. undivided half thereof." And this is the exact

“Nine months after date I promise to interest, in terms, which is devised to Hays and

the order of Wm. Bebb, one thousand dollars, Corwine by the codicil, and which is also the

value received, at the Ohio Life Insurance and

Trust Co., Cincinnati. exact complement of the interest devised to

“L. D. CAMPBELL.Mace. Such being the clear meaning and intent of the testatrix, as manifested by the lan

Which was indorsed and transferred to plainguage employed in the only dispositive clauses

tiff's intestate, Wm. E. White, before due. of the codicil, when taken in either its ordinary

He avers that on the 27th of November, 1852, or technical sence, we entertain no doubt that

at defendant's request, White agreed to let him the half of the farm which Hays & Corwine

have further time to pay said note, in considerawere to have on the upper side and the half

tion whereof the defendant executed the followwhich Mace was to have on the lower side of the ing agreement: farm, are to be ascertained and measured, not ac

“I hereby agree to allow Wm. E. White ten cording to acreage, but according to the value of

but according to the value of per cent. interest on a note signed by myself and the interests described in the dispositive clauses payable to and indorsed by Wm. Bebb, for one of the codicil.

thousand dollars, dated April 16, 1851, payable An objection is made to the jurisdiction of the

nine months after date, the raid ten per cent. to appellate court. We are of opinion that the na

be allowed until the same is paid.

“ L. D. CAMPBELL.” ture of the title and the relief sought, bring the care clearly within the cognizance of a court of

“HAMILTON, Nov. 27, 1852." equity, and that, therefore, an appeal from the It is alleged that by virtue of said agreement, common pleas to the district court was properly which became part of said note, it bore interest taken. The statute concerning the partition of

at the rate of ten per cent. from and after Novemlegal estates does not afford the remedy to which

ber 27, 1852. the parties in this case are entitled under the

By an amendment to his petition, the plaintiff will of Mrs. Davis.

alleges that White did, in pursuance of said Decree for plaintiffs.

promise by Campbell to pay ten per cent., give [This case will appear in 36 0. S.]

and extend time to him, in consideration of

which he paid said interest. SUPREME COURT OF OHIO.

Sundry credits are indorsed on the note, be

ginning with January 6, 1853, and ending March ANDREWS 0. CAMPBELL.

31, 1870.

The answer claims that these payments, in While the statate allowing parties to contract for ten dorsed, were paid as interest at ten per cent., deten per cent. interest was in force, C. executed to B. bis nies the validity of the contract to pay that rate

Before maturity, B. negotiated the pote to w., who for want of any consideration to support the brought an action recover a balance due thereon, with defendant's promise, and denies generally all on por cont. interest, alleging for that purpose a promise plaintiff's allegations touching the agreement to

nsideration of an agreement by W. for further time, give time for the payment of the note. which had been granted. Held:

Upon this issue the case was submitted to the 1. The burden of proving a valid modification of the court. The plaintiff testified that he was the terms of the note, by which the debtor became liable to the bigher rate of interest under the statute, was upon

executor of White, and that he found among his the plaintiff.

papers a writing signed by Bebb, the payee and 2. The new promise of 0. to pay interest at, ten per indorser of the note. This paper was offered in cent, until the note was paid, must be supported by a suficient consideration; and where it is allegr the

evidence by the plaintiff, in support of his case, promise was made in consideration of a mutu romiso made by the pleadings, but was ruled out, and

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to this ruling plaintiff excepted. It reads as the rate of ten per cent. made during the exisfollows:

tence of the ten per cent. statute to stand as such, "CINCINNATI, March 16, 1852. and treated all subsequent payments in excess “Whereas, I negotiated to Wm. E. White the of six per cent. as credits on the principal. note of Hon. L. Ď. Campbell, dated April 16, To reverse this judgment two errors are as1851, for $1.000, payable nine months after date, signed. at the Ohio Life" and Trust Co., Cincinnati. 1st. That the court erred in ruling out the And whereas, by reason of fires, &c., Mr. Camp- written agreement of Bebb, found among White's bell has not been able to meet said note at its papers, giving his consent to an extension to maturity, and asks further time, which Mr. White Campbell, which it is therein stated White had has consented, with my consent, to grant :

agreed to give, and reciting that White had, “Now, I agree that in consideration of said with his consent, agreed to give time to Campforbearance, that if the said Campbell will not bell. pay to the said White ten per cent. per annum 2d. That the court erred in holding that there interest on said note, from and after its maturity, was no valid contract changing the rate of interI will; and I agree that the mortgage lien shall est from six to ten per cent. remain unaffected by said forbearance, and that 1st. As to the objection of the written stateI will remain surety, as heretofore, until I give ment and agreement of Bebb. written notice to the contrary, and sixty days It is dated March 16, 1852, two months after thereafter.

the note was due, and more than eight months “ Witness my hand :

WM. BEBB." before Cainpbell's promise to pay ten per cent., Without further testimony by either party, and after B. hail parted with his interest in the the case was submitted, and the court coroputer note. interest on said note at ten per cént. until the It appears from the record that Bebb had repeal of the ten per cent. statute, and after waived demand, notice and protest, so that, at that at six, applying the excess of interest paid the time he signed this paper, he was liable on after that date, to the payment of principal. the note as an indorser.

This judgment was affirmed in the district One of the objects of this instrument was to court. To reverse so much of the same as allows waive any right he might hæve to be discharged six per cent. interest only after the repeal of the if White should give time on the note. ten per cent. statute, is the object of the present Another object seems to have been to induce proceeding.

White to grant further time to Campbell, who it Harmon & Maxwell and H. L. Morey, for seems was unable to pay, by reason of losses by plaintiff in error,

fire, &c.; hence he agrees that if Campbell does James E. Campbell and Thomas Millikin, for not pay the ten per cent., he will. This agreedefendant in error.

ment was signed by Bebb, and was made for the JOHNSON, J.

benefit of White. By the act of March 14, 1850, which took ef

Bebb is not a party in this action. This pafect May 1, 1860 (48 O. L. 87), “the parties to

per was one executed to White; Campbell was any bond, bill, promissory note or other instru- not a party to it, nor does it appear that he ever ment of writing, for the payment or forbearance

knew of its existence until it were offered in of money, may stipulate therein * * * at evidence. White's title and ownership of the any rate not exceeding ten per centum yearly."

note was not in issue on the trial, and hence the This statute was repealed February 25, 1859, declarations of Bebb that he had negctiated the and the repeal took effect April 1, 1859, but by

note to White, or his statements in favor of an act of March 31, 1859 (1 S. & C. 745) the re

White, were not material except to prove the peal did not affect existing ten per cent. con

allegation that White had agreed to give time tracts, nor such as should be made before the re

on the note. peal took effect.

The issue to be tried was, whether there was a By the act of 1848 (1S. & C. 744), all payments of

consideration to support Campbell's promise of interest above the legal rate were to be treated

November 27th, that is, whether White's promas payments on the principal, when the note

ise of delay was a consideration for Campbell's was not in the hands of a bona fide holder, pur

promise to pay ten per cent. chased before due.

The statement made by Bebb to White, that This note was without interest, and upon its he, White, had consented, with his consent, to face bore six per cent, after maturity.

give time, is but the declaration of a third party, The burden of allegation and proof that the

a stranger to Campbell's agreement, of what contract, its expressed by the pote, had been con

White had agreed to do. verted to a ten per cent. contract rested upon

It was no part of the res gestae, and was inadthe plaintiff.

missible in favor of White for the purpose for The court having no other evidence before it,

which it was offered, namely, to prove a mutual upon the issue made, than the pleadings, found promise by White, in consideration of the promthat the contract to pay interest at six per cent.

ise made by Campbell. In the absence of any. had not been converted into one to pay ten, but

thing'tending to show that Campbell knew it following th“ decision in Samyn v. Phillips, 15

the existence of thiş agreement of Bebb with Ohio St. 218, allowed all payments of interest at

White, or that he had acted upon the faith of it,


it was clearly inadmissible to prove that White the promise that it is based upon terms or con. had promised to delay or give time.

ditions, express or implied, which can be ac2d. Did the court err in treating the pay- cepted and performed. 'In such cases the execu. ments made after April 1, 1859 (the date of the tion of these terms or conditions by the promirepeal of the ten per cent. law), in excess of six see constitutes a valid consideration, and from per cent., as payments on the principal of the the time of such execution the promise becomes note ?

binding. This depends on the validity of Campbell's If Campbell's promise be examined, it will proinise to pay ten per cent.

appear that it is not such as comes within the In this promise he says: “I hereby agree to above rule. He stipulated for no definite time allow William E. White ten per cent. interest of delay, and none was in fact given. The delay on a note (describing the same)

* to be that did occur may have been, and probably was, allowed until the same is paid.

the result of the voluntary act of White, and not The plaintiff alleges that the consideration

because he was under any legal and valid oblithat made this promise binding was the promise gation to grant it. Again, it does not appear of White to give time. No proof of this is of

that the act of giving time by White was in exefered, and we are asked to presume or imply that cution of any contract with Campbell, or of any such a valid contract was in fact made, from the terms or conditions, express or implied, as the fact that annual payments of interest were made consideration of his promise. for several years by Campbell, who enjoyed the

To constitute a valid modification of the terms benefit of actual delay during the time of these

of the promissory note, there must be a new and payments.

valuable consideration moving to Campbell to The statute requires that the contract to pay the increased rate must be in writing, and while support his promise. None is shown in this it may not be necessary to express the considera

case, and none can be presumed to have existed,

from the mere fact that he paid the higher rate tion for the promise in the contract, yet to make it valid as a change of the terms expressed by the

from year to year, and that indulgence was

granted. note, it should be supported by a valid consideration. The fact of giving time indefinitely, and

The statute requires that the stipulation to the payment annually of ten per cent., do not

pay ten per cent. must be in the contract for the warrant the inference that there ever was any

payment or forbearance of money. A strict conbinding obligation pre-existing on the part of

struction of this statute would exclude this subWhite, which was enforceable by Campbell.

sequent contract or promise of Campbell, made Without a definite obligation by White to

on a separate paper. It does not purport to be a support Campbell's promise, the terms of the

contract for the payment or forbearance of the note are not modified. If he was at liberty at principal debt, but a supplemental promise to any time to collect the note, as he seems to have

pay a higher rate of interest on the note. been, there was no statutory change of its terms.

Such a 'contract was, however, sustained in But it is urged that, as the delay was actually Mueller v. McGregor, 28 Ohio St. 265, where the granted for a series of years, the contract be promise to pay ten per cent. was in a supplemencame, on the part of White, an executed one, tal contract, in which there was a promise by which made Campbell's promise binding; and the creditor to delay for a definite time in conreference has been made to a numerous class of sideration of the promise to pay ten per cent. contracts, where the rule that the promise of one In that case, it was held, that the original conis void for want of mutuality, is confined to

tract was modified as to rate of interest for the cases where want of such mutuality would leave time named, but that after the expiration of that the promisor without a valid consideration at the time, the original rate of interest governed, extime he is to perform his promise. L'Amoreux v. cept as to payments made at a higher rate beGould, 7 N. 'Y. 349.

fore the repeal of the ten per cent. law. In other words, that Campbell's promise to We hold, therefore, that to constitute such pay ten per cent. until the note is paid, though a modification of the promissory note as to void for want of mutuality, became binding, be change it from a six to a ten per cent. note, there cause time was actually given, as desired by must have been a valid contract to that effect; Campbell.

that the burden of proving such contract rested It is undoubtedly true that when the promise upon the plaintiff, that such a pre-existing conis made on certain and definite terms or condi- tract cannot be implied from the payment of ten tions, open to acceptance, or to be acted upon by per cent. for series of years in pursuance of a the promise, it becomes a binding promise upon voluntary promise to do so, in the absence of such acceptance or performance, though void for any consideration to support such promise, and want of mutuality before such acceptance or that, as the promise by Campbell was not performance.

coupled with definite terms or conditions to Instances of this class of contracts may be


be accepted or

gratuitous, promises, and also in some forms of guar

delay was granted by him for a series of years, anty.

does not constitute such a performance or execuIn all such cases it is an essential element of tion of a contract as will make the promise by

Campbell, which was void for want of mutuality, the members daily, and its natural history and

that its library and reading-room are open to binding upon him under the statute. Judgment affirmed.

historical collections are open free during two [This case will appear in $6 0. S.]

days a week to the public; the association has

no stockholders, and no member or officer of the SUPREME COURT OF OHIO.

plaintiff has any pecuniary benefit from the plaintiff

, or is entitled to any; that it employs THE CLEVELAND LIBRARY ASSOCIATION and pays a librarian and a few necessary assist

ants to take charge of the books and their disFREDERICK W. PELTON, TREASURER, ET AL.

tribution, and to attend to the exhibiton of its collections aforesaid ; that on the first day of

July, 1876, Leonard Case, by his deed duly exe1. A library association, incorporated under the laws

cuted and delivered, conveyed to the plaintiff of this state, whose objects and purposes are, “The diffusion of useful knowledge, and the acquirement of the

the premises situate in the city of Cleveland, arts and sciences, by the establishment of a library of and described in his said deed, a copy of which scientific and miscellaneous books for general circulation, and a reading-room, lectures and cabinets;" open to all

is hereunto annexed and made part of this findpersons, without distinction, upon equal terms, and the ing, and marked 'Exhibit B;' said Case died in income and revenues of which are devoted exclusively January, 1880, without exercising his right of to such obects and purposes, is "an institution of purely

revocation mentioned in said deed; that said public charity." within the meaning of the 6th clause of the act of March 21, 1864. S. & S. 761.

plaintiff has been in occupation of said premises 2. Where such association owns a lot of ground, with ever since the execution of said deed; that the a block of buildings thereon, constructed as an entirety, and the buildings having a basement and three stories diagram of the rooins qe said building is hereto

whole land is covered by a building, and a use, and for renting, some of which, on each floor, are annexed, marked 'Exhibit C,' and made part of used by it for its purposes ; some are rented out, and the rents received are applied exclusively to keeping the

this finding; that the rooms marked 'R' in the property in good repair, and to the purposes of the

basement, are used for storage by the tenassocietion, and some are vacant, Helā, that such parts ants of the rooms above; that on the principal of said building and appurtenances as are rented, or Hoor the rooms are all stores and are all rented. otherwise used with a view to protit, are not exeinpt from taxation.

and the rooms on the floors above marked 'R,' 3. The fact that the building is so constructed, that are rented, and the hall is rented for musical the parts leased or otherwise used with a view to profit

concerts, lectures, and art and scientific exhibicannot be separated from the residue by detinite lines, is no obstacle to a valuation of such parts for purposes

tions; the rooms marked 'L,' are actually occuof taxation, having due reference to the taxable value pied by the library for its books, collections, of the entire property,

reading-rooms and storage, and the other rooms Appeal-Reserved in the District Court of are not rented; the entire net income derived Cuyahoga County,

from the rents is devoted as fast as it is collected The action below was brought by plaintiff, to

to the purchase of books and enlarging the facilienjoin the auditor and treasurer of Cuyahoga ties of the library, and no member or officer of county, from collecting the taxes and assessing the plaintiff derives or receives any pecuniary penalties thereon, for the year 1877, on its prop

benefit from said income; during 1879 the gross erty, known as Case Block, in the city of Cleve-income from renting rooms and hall amounted land.

to $10,000, of which amount $3,000 was used in It was reserved for decision here, on the fol purchasing books for the library, and after relowing finding of facts :

taining sufficient to pay the taxes on premises, the “This cause came on to be heard upon the

remainder thereof was used for necessary repairs pleadings and evidence, and the court finds that of the building and for enlarging the library the plaintiff is a corporation, duly organized rooms. under section 66 of the corporation act of May

That the land included in said deed stands 1st, 1852, as amended May 14th, 1859, and that

on the county duplicate at a valuation of $24, the objects and purposes of said corporation are

552.50, and the building at a valuation of $74, set forth in the constitution and by.laws, which

657.50, on which total valuation of $99,210, the are made part of this finding and hereto annexed, general state, county and city taxes were assessed marked 'Exhibit A;' that said plaintiff is pos

for the year 1877, and in the hands of the treassessed of a large collection of scientific and urer for collection. And difficult and important miscellaneous books, about 14,000 volumes; that questions of law arising on these facts, on mo besides its library proper, it has a large collection of the plaintiff, this cause is reserved to tion of natural history, also a large historical the supreme court for final determination." collection, and keeps up and maintains a read- Grannis & Griswold, for plaintiff. ing-room in connection with its library; that Heisley, Weh & Wallace, for defendants. uny, person, without distinction of color, sex or Johnson, J. faith, can become a member, and that at the The plaintiff is a corporation organized under commencement of this action the annual fee is, the act of 1852, ils amended March 14, 1859. 1 and ever since has been, one dollar, and there | S. & C. 305. are about one thousand members; that if a mem- Section 73 of said act provides that: “The ber withdraws more than one book at a time a trustees or directors who may be appointed unfurther charge of ten cents per week is added; der the provisions of this act, and their successors in office, shall have perpetual succession of cal or horizontal lines through the building, presuch name as may be designated, and by such sents nu obstacle to a separation in valuation for name shall be legally capable of contracting; purposes of taxation. This was settled in Cinand of prosecuting and defendingsuits, and cinnati College v. Yeatman, 30 Ohio St. 276. shall have capacity to acquire, hold, enjoy, dis- The case of Cincinnati College v. State (supra), pose of and convey all property, real or personal, would seem to be decisive of the one at bar, and they may acquire by purchase, donation, or oth- is so, unless, as is claimer!, the exemption clause erwise, for the purpose of carrying out the in- under consideration requires a different constructention of such society or association, but they tion from the corresponding clause in the former shall not acquire or hold property for any other statutes under which that case arose. purpose."

The words of the act of 1864 are: “All buildThe purposes of this association, and for which ings belonging to institutions of purely public it may acquire, hold and use property, are, as charity, together with the land actually occuas found by the district court, and set forth in pied by such institution, not leased or otherwise “Exhibit A,” “The diffusion of useful knowl- used with a view to profit,” &c., while those of edge and the acquirement of the arts and sci- the act of 1846 are:

the act of 1846 are: “All buildings belonging to ences by the establishment of a library of scien- scientific, literary, or benevolent societies, used exclutific and miscellaneous books for general circu: sovely for scientific, literary or benevolent socielation, and a reading room, lectures and cab- ties, together with the land actually occupied inets.'

by such institutions, not leased or otherwise It is open to all without distinction, and all used with a view to profit,” &c. its income is devoted exclusively to said pur- The argument is, that as the word exclusively is poses.

omitted from the act of 1864, it was intended to That this association, in its objects and pur-change the law as construed in Cincinnati Colposes, is, “an institution of purely public char- lege v. State, and that now, if part only of the ity,” within the meaning of the statute of 1864, building is so used, and the residue is rented, is, we think settled by the cases of Gerke v. Pur- the whole is exempt. This construction would cell, 25 Ohio St. 229; Cincinnati College v. State, defeat the limitation found in these words “not 19 Ohio, 111; and Humphries 1. Little Sisters leased or otherwise used with a view to profit." of the Poor, 29 Ohio St. 201.

The words "institutions of purely public charAs it appears, by the findings of the court, ity,” are substituted in the act of 1864, for the that some of the rooms in the basement and in societies specifically named in the act of 1846, the different stories are used by the association and embrace all societies without enumeration, for its objects, some are vacant and some are where the object is a purely public charity. If rented, the only remaining question is, whether such an institution embraces other objects, and the part of the property that is rented should be uses its buildings for other purposes, as for inassessed for taxation ?

stance, renting with a view to profit, it is not an This requires a construction of the sixth institution of purely public charity. In short, clause of section 1 of the act of March 21, 1864, its buildings must, under the act of 1864, as well providing for exemptions, which reads as fol- as under that of 1846, be used exclusively for that

object, in order to be exempt. “All buildings belonging to institutions of Any other construction would defeat the manpurely public charity, together with the land ifest intention of the tax laws, and allow such actually occupied by such institution, not leased institutions to become landlords of all species of or otherwise used with a view to profit, and all property, provided the income derived therefrom moneys and credits appropriated solely to sus- is used to promote their objects. taining, and belonging exclusively to such in- Again, in view of the principle that exempstitutions."

tions from taxation should be strictly construed, In considering this question, we may premise: it has been held, in many well-considered cases,

1st. That all exemptions by statute, from the that an exemption in general terms of all the cqual burdens of taxation, should be strictly con- property of a college or other institution extends strued.

only to the property actually used for its legiti2d. That the fact that the income derived mate purposes, as fully as if the exemption was from rents of parts of the building not used is expressly limited to such property. devoted exclusively to the objects and purposes Thus, when a library association was incorpo of the association, and not used for the benefit or rated, to establish a library, and by its charter profit of its members, can make no difference. its property, in general terms, was exempt from The law looks

to the property, as it finds it in taxation, it was held that the use must be direct use, and not to what is donc with its accumula- and exclusive, and that where the building of tions. Cincinnati College v. State, 19 Ohio, 110; the association consisted of a large number of Humphries v. Little Sisters, 29 Ohio St. 201; rooms, a small portion of which only were used, Gerke v. Purcell, 25 Ohio St. 229.

and the others were rented out for business pur3d. The circumstance, that the rooms in the poses, the part so used was not exempt from taxbuilding, actually used by the association, are on ation. State 1. Elizabeth, 4 Dutcher, '103. To the different floors, from the basement to the the same effect is the case of State v. Flavell third story, and are not severable by any verti- (4 Zab. 382), where the lands of a corporation


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