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laws of the State. Neither the incorporators nor
1138. Nelson Stone, on behalf of himself and the trustees first elected are authorized to adopt others, v. Henry C. Viele, Treasurer of Summit a by-law or regulation providing that they shall County. Error to the District Court of Summit hold office during life, and in case of vacancy, to County. fill the same by appointment.
OKEY, C. J. 5. Trustees are charged with the duty of Where a contractor for paving a street has faithfully executing the trust which the law and failed to perform his contract, so that there is regulations impose on them. They are entitled "a substantial defect in the improvement," withto a reasonable compensation for the service ren- in the meaning of Revised Statutes § 2289,' and dered; but any plan or scheme by which money an assessment against the abutting lots has been is collected from members by assessment or oth- placed on the tax duplicate, and the county erwise, with a view to their individual profit, treasurer is taking the necessary steps to sell and beyond what is necessary to defray the rea- such lots, under authority of the duplicate, the sonable expenses of executing the trust, is a owners of such property may, in an action breach of trust.
against the the treasurer and the municipal cor6. A certificate of membership in such a cor- poration, enjoin such proceeding, unless it apporation by which the member in consideration pear that it would be inequitable to do so. Secs. of his payment of a membership fee, annual dues 1777, 1778, Rev. Stats., have no application in and a pro rata assessment with his fellow mem
such case. bers to pay a sum of money to the family or Judgment reversed and cause remanded for heirs of a deceased member, in consideration of further proceedings. which the association at his death stipulates to 1116. Robert J. Turnbull 0. Horatio Page. pay to his family or heirs a sum of money, grad- Error to the District Court of Franklin County. uated by the number of members in his cla: 8, is Leave granted to file printed record. a contract of life insurance.
MOTION DOCKET. 7. Such a contract of insurance to pay in case No. 106. Joseph A. Treat et al. v. Ransom of a member's death “to himself or assignees” Cole, Executor, &c. Motion for stay of proceed"to his estate," "to his executors or administra- | ings in cause No. 1211 on the General Docket. tor,” or to any person, whether a relation or not, Motion granted. Undertaking fixed at $500, who is not of his family or heirs, is against pub-conditioned that the plaintiff in error will pay lic policy, and void.
such damages as the defendant in error may susJudgment of ouster.
tain by the delay, in case the judgment should OKEY, C. J. took no part in the decision of be affirmed, and also in that event, that plaintthis case.
iff in error will pay all costs. 111. Hezekiah S. Bundy v. The Ophir Iron 112. Day Williams & Co. v. New York, PennCompany. et. al. Error to the District Court of sylvania & Ohio Railroad Co. Motion to take Jackson County.
cause No. 1185 on the General Docket out of its WHITE, J.
order for hearing. Motion overruled. A stockholder in a manufacturing corporation 113. James Clark v. Margaret Bruce. Motion endorscd notes of the company in consideration for an extention of time to print record, &c. that the payment of the notes should be secured Motion granted and time extended for 30 days. and the endorser protected by mortgage on the 114. Samuel Martin et al. v. E. E. Roney, property of the company. Through mistake | Auditor, &c., et al. Motion to stay collection of the nortgage was made by the stockholders in an assessment in cause No. 1059 on the General their own names instead of in the name of the Docket. Motion granted on plaintiffs executing corporation. A subsequent mortgage was made to defendants an undertaking in $1000, to the in the name of the corporation to its creditors approval of the Clerk of the District Court of and recorded, which, by its terms, was subject, Brown County conditioned to pay all costs and to the first. Held:
damages if the judgment should be affirmed. 1. That the mortgage by the stockholders 115. Jacob Counterman et al. v. Trustees of was a good, equitable mortgage against the cor- Dubļin Township. Motion to take cause No. poration, which, independently of our statute, 1220 on the General Docket out of its order for could be enforced against subsequent judgment hearing. Motion granted. creditors.
116. Wm. J. Brown v. The State. Motion to 2. That the second mortgage operated to take cause No. 1155 on the General Docket out give priority to the first both as against parties of its order for hearing. Motion granted and claiming under the second mortgage and those cause set for hearing June 21, 1882. claiming liens under judgments subsequently 117. John Rathbone et al. v. George H. Frey rendered
et al. Motion for stay of execution in cause No. 3. An express . acceptance of the second 1210 of the general docket. Motion granted on mortgage by the mortgagees is 20t required. the execution of an undertaking to be approved The acceptance may be implied from circum- by the Clerk of the District Court of Clarke stances. Nor is it necessary that all the mort. County by plaintiffs in error, for $1,000, condigagees should accept the mortgage; part may tioned to prosecute said action to effect and pay accept though others refuse to do so.
all costs and damages that may be adjudged Judgment reversed and cause remanded,
against them in case the judgment is affirmed.
Olio Law Journal.
cuted and delivered to the plaintiff, of which the following is a copy :
"CINCINNATI, May 28, 1875. COLUMBUS, OHIO,
JUNE 29, 1882. "For and in consideration of thirty-three
shares of the capital stock in the Greenlees & No decisions were announced by the Su
Ransom Company, the receipt whereof is hereby preme Court, Tuesday morning. The Court acknowledged, said Greenlees & Ransom Comwill meet to-morrow, (Friday) morning, and
pany, promise to pay, or cause to be paid, to
William Coppin the suin of three thousand three after announcing decisions in cases under con- hundred dollars, payable, viz: said Coppin to sideration, will adjourn until September. take a lot of ground, No. 46 on the plat of the
Wyoming Land and Building Co's sub-division EXECUTORY
of the Burn's farm, Wyoming, Ohio, in part AGREEMENT BETWEEN
payment, amounting to $1,100.00; also a lot of MANUFACTURING CORPORATION
ground on the north side of Wyoming avenue AND STOCKHOLDER.
-Caruthers, and next to Mr.
Beeson's house, fifty feet front by two hundred SUPREME COURT OF OHIO.
and forty-five feet deep, more or less, for the
sum of $700.00; leaving a balance of $1,500.00 to WILLIAM COPPIN
be paid in manufactured work, joist, scantling,
etc., the manufactured work at ten per cent. off THE GREENLESS AND RANSOM COMPANY.
their bill of prices; the other material at the usual rates; the work and material to be de
livered from time to time to him as said Coppin June 20, 1882.
may order it. An executory agreement between a manufac
"GREENLEES & RANSOM COMPANY. turing corporation of this State and one of its
"By E. P. RANSOM, President." stockholders, for the purchase of the stock of And the plaintiff says that afterwards, in the such corporation, by the former from the latter, cannot be enforced either by action for specific stock to the defendant, and offered to transfer
month of June, 1875, he tendered said shares of performance or for damages.
the same to it, and demanded, performance of Error to the District Court of Hamilton said contract, but the defendant refused to County.
accept the same, and refused to convey said lots, The original action was brought by plaintiff or either of them, or to deliver said manufacturin error against defendant in error, in the ed goods, although the plaintiff then demanded Court of Common Pleas of Hamilton County, the same. and the cause of action was thus stated in the Wherefore he 'now brings said stock into petition :
Court, and offers to transfer the same to the "The plaintiff states that the defendant is plaintiff, and prays that the defendant may be and for several years past has been a corporation, compelled to convey said lots by a perfect title, duly incorporated under the laws of the State of and to deliver said goods, and for such other and Ohio, for manufacturing purposes.
further relief as in equity and good conscience That it has been the custoin of said corpora
he may prove to be entitled to.” tion that its officers and others, actively engaged
To this petition an amendment was afterward in its service, should be holders of shares of its allowed and filed as follows: stock, and upon ceasing to be connected with " And now comes the plaintiff, William said company, such persons have been accus- Coppin, and by leave of Court files this amendtomed to sell, and said company to buy their said ment to his petition herein, and for such amendstock..
ment says, that the value of said land, and of That the plaintiff was formerly in the employ said building material, was thirty-three hundred of said company as a workman, and that while dollar. so engaged he became the holder of shares of the That said lots were worth respectively $1,100 capital stock of said company to the amount, at and $700, and re-affirming all the allegations of itspar value, of $3,300.
his petition except such as may be inconsistent That having ceased to work for said company, here with, prays, a judgment for said vahe of he to sell the same to the defendant for two lots of of $3,300, with interest from the 28th day of May, land, hereinafter described, valued respectively A. D. 1875, against the said defendant, and withat $1,100 and $700, and the balance of $1,500 in draws his prayer for specific performances.” manufactured work to be made by the defend- After an issue of fact joined by answer the ant, at ten per cent. off their bill of prices, to was tried and verdict and judgment which the defendant assented and agreed, and rendered in favor of the plaintiff for $3,817.00. to carry the same into effect, the plaintiff
, on On petition in error, the district court reversed May 28, 1875, caused to be prepared a written the judgment of the common pleas, and caused contract, which the defendant then duly exe- it to be certified on the record, "that the judg
ment of the court of common pleas was reversed is supposed to rest on a necessity which arises by this court on the ground that the petition in order to avoid loss, ani was recognized in this and amendment to the petition failed to show State as early as Taylor v. The Miami Exporta sufficent cause of action and on the ground ing Co., 6 Ohio R. 176, and has been incidentally that the verdict was contrary to law," and not referred to as an existing right since the adopon the ground that the verdict was contrary to tion of our present constitution. State o. Buildthe evidence.
ing Association, 35 Ohio St. 258. This proceeding is now prosecuted to reverse
But, however that may be, the right of a corthe judgment of the district court.
poration to traffic in its own stock at pleasure, MCILVAINE, J
appears to us to be inconsistent with the princi
ple of the provisions of the present constitution. Whether the defendant corporation was bound Article 13, Section 3, which reads as follows: by its executory agreement with the plaintiff to “Dues from corporations shall be secured by such purchase shares of its own stock under the cir
individual liability of stockholders, and other cumstances detailed in the petition, was, un- means as may be prescribed by law, but in all doubtedly the question upon which the case cases each stockholder shall be liable, over and turned in the district court.
above the stock by him or her owned, and any The power of a trading corporation to traffic amount unpaid thereon, to a further sum, ut in its own stock, where no authority to do so is least equal to such stock.” Now, it is just as conferred upon it by the terms of its charter, has plain, that a business or trading corporation been a subject of much discussion in the courts; cannot exist without stock and stockholders, as and the conclusions reached by different courts it is that the creditors of such corporations are have been conflicting. Of course, cases wherein entitled to the security named in the constituthe power is found to exist by express or im- tion. State ex rel Atty Gen. o. Sherman, 22 plied grant in the charter, furnish no aid in the Ohio St. 411. The corporation itself cannot be solution of the question before us, unless the a stockholder of its own stocks within the meanclaim of the plaintiff can be sustained : that ing of this provision of the constitution. Nosuch power was conforred on the defendant body will deny this proposition. And if a corSection LXVIII of the corporation act of 1852, poration can buy one share of its stock at pleas(S. & C. 301), as amended, which confers on ure, why may it not buy every share? If the manufacturing corporations the powers enumer- right of a corporation to purchase its own stock ated in the 3rd Section of the act, and, among at pleasure exists, and is unlimited, where is others, the power “to acquire and convey at the provision intended for the benefit of creditpleasure, all such real and personal estate as may ors? This is not the security to which the conbe necessary or convenient, to carry into effect stitution invites the creditors of corporations. the objects of the corporation.” We think, how- I am aware that the amount of stock required to ever, that this claim cannot be maintained. The be issued, is not fixed by the constitution, or by sole object of the defendant's organization was statute, and also, that provision is made by "for manufacturing purposes," and it cannot be statute for the reduction of the capital stock of said, in any just sense, that the power to acquire corporations, but of these matters creditors are or convey its own stock was either necessary or bound to take notice. They have a right, howconvenient "for manufacturing purposes." ever, to assume that stuck once issued, and not
The doctrine, that corporations, when not pro called back in the manner provided by law, rehibited by their charters, may buy and sell their mains outstanding in the hands of stockholders, own stocks, is supported by a line of authorities, liable to respond to creditors to the extent of the and proininent among them may be mentioned individual liability prescribed. In this view it the cases of Dupee v. The Boston Water Power matters not whether the stock purchased by the Co., 114 Mass. 37, and C. P. & S. R. R. Co. v. Mar- corporation that issued it, becomes extinct, or is sailles, 84 Ill. 145. But, nevertheless, we think held subject to be re-issued. It is enough to the decided weight of authority, both in Eng- know that the corporation, as purchaser of its land and in the United States, is against the own stock, does not afford to creditors, the seexistence of the power unless conferred by ex- curity intended. And surely, if the law forbids press grant, or clear implication. The founda- the organization of a corporation without stock, tion principle, upon which these latter cases because the required security is not furnished, rest, is, that a corporation possesses no powers it cannot be, that having brought the corporaexcept such as are conferred upon it by its char- tion into existence, it invests it with power to ter, either by express grant or necessary impli- assuine at pleasure the identical character or recation; and this principle has been frequently lation to the public, that was an insurmountadeclared by the Supreme Court of this state, and ble objection to the giving of corporate existence by none more emphatically than by this court. in the first place. It is true, however, that in most jurisdictions, Plaintiff in error lays much stress on the averwhere the right of a corporation to traffic in its ments in tne petition, that it had been the own stock has been denied, an exception to the custom of the corporation, that its officers and rule has been admitted to exist, whereby a corpo- others actively engaged in its service, should be ration has been allowed to take its own stock in holders of shares of its stock, and upon ceasing satisfaction of a debt due to it. This exception
to be connected with the company, such persons had been accustomed to sell, and the company upon the front portion of said lot a dwelling to buy such stock, and that the plaintiff had house and out houses, to be used as a dwelling purchased the stock for the price of which suit for himself and family, and which he has so used was brought while in the employment of de- and occupied ever since. That in the year 1873, fendant.
the defendant, in constructing Gilbert Avenue, We cannot see why these averments should illegally and wrongfully caused the base of the take the case out of the general rule.
hillside to be cut away and removed, upon and If it were averred that the plaintiff had pur- above which the lot and improvements of the chased this stock from the defendant, or from plaintiffare situated, whereby the surface of the others under an agreement with the company plaintiff's lot was made to slip, the support rethat it buy the same from him when he quit its moved injuring the lot, breaking the surface, the employment, or if the contract of purchase by foundation walls of his house, and rendering the the defendant had been executed, very different dwelling and improvements untenable. questions would arise.
The petition charges negligence and want of It is not even averred that the plaintiff relied skill in the original location and grade of the upon such custom either in making the pur- street and in the execution of the work which chase or the sale of the stock; so that in fact he caused the injury complained of; and also averis unaffected by the alleged custom. But if such red that his improvements were made in good custom had been relied on by the plaintiff when faith and with reference to the grade of the he purchased the stock, it would not have made streets and alleys existing at the time, and that the executory contract of the defer 'ant to buy he had no reason to expect or apprehend the city the stock binding, which, without such custom would ever cause a cut to be made in the rear of would be void. The usage of a corporation does his lot of the nature and character of the one so not become the law of its existence, or the made. measure of its powers. The general law of the The answer took issue with the averments in State, of which all persons are presumed to have the petition. knowledge, is the source and limit of all its On the trial as it appeared by the bill of expowers and duties, and these cannot be varied ceptions, the lot of the plaintiff lies wiih refereither by usage or contract. The doctrine of es- ence to Gilbert Avenue, thus: toppel has no application in the case. Nor is [Here follows a plat showing location of the there any such equity in the case as would have lot, street, alleys &c.] arisen between the parties, in case the contract It also appeared that the plaintiff bought his had been executed.
lot in 1864; and that it had a house on it, frontJudgment affirmed.
ing on Sixth Street, erected more than twenty[This case will appear in 38 0. S.]
five years before the action was brought. That
the land on which Gilbert Avenue lies had been STREET IMPROVEMENTS-DAMAGE TO condemned by the city for the purpose of an PROPERTY-LIABILITY OF CORPORA- avenue in 1869, but that none of the plaintiff's TION.
ground was condemned; that Gilbert Avenue
was a new wide street projected and laid out SUPREME COURT OF OHIO.
in 1869 and ran diagonally to the old established
streets and at a different grade ; that the plaintKEATING v. CINCINNATI.
iff's lot had been improved in accordance with
the established grade of the adjoining streets
May 9, 1882. and used for over thirty years; that without the A municipal corporation in making a street along a
cutting in the avenue his buildings and lot hillside, so excavated the ground in the street as to would have remainer' undisturbed, and his lot cause the land above to slide and injure the lot of the plaintiff. Held :
lies fifteen or twenty feet east of the avenue, 1. That the fact that the plaintiff's lot did not abut
with a ten feet unimproved alley between, on iminediately on the street did not exempt the corpora- which his lot abuts at the west end. Gilbert tion from liability. Its liability did not depend upon the ownership of the injured property, but upon the ex
Avenue is built along a hillside; the hill rises to tent of the injury of which its removal of the lateral sup
the east so that the plaintiff's lot slopes upward port of the hill was the efficient cause.
from the avenue; Sixth Street: above both and 2. That the liability extends to damages to buildings as well as to the land in its natural state, where the owner
the hill continues to rise until it reaches peris not chargeable with negligence in making such im
haps a hundred feet above the avenue and the provements, and such damages result from want of due ground falls away westward below the avenue. skill and care in making tht street.
The bill of exceptions also contains the folError to the District Court of Hamilton County: lowing statement. The original action was brought by Edward “The plaintiff then gave testimony as to the Keating, to recover the camages he sustained to values and amount of injury, and the reasonable his premises by the construction of Gilbert Ave- cost of repairng the same, and the values of nue in said city. The plaintiff's lot fronts on such improvements as he claimed to be wholly the west side of Sixth Street twenty-five feet, ex- dectroyed by the cut and the slip, which amounttending back towards Gilbert Avenue ninety feet ed in all to $985.00. And thereupon it was more or less. The petition states that more agreed between the parties that plaintiff's estithan twenty-six years since there was erected | mates were reasonable and honest, and neither
side would offer testimony on that point, either It was admitted that the city built no retainto corroborate or attack his testimony as to ing walls opposite any of the property on the amount of damages, or value, or cost of repairs, avenue at the time in controversy; but that she they being accepted as true, which consisted in did subsequently. destroying totally the stone foundations, break- This case is governed by the principles settled ing and cracking the walls and ceilings, break- by our own decisions, whatever may have been ing and destroying and rendering entirely use- held elsewhere. In Rhodes v. the City of Cleveless and valueless a cistern and privy, and com- land it was held that a municipal corporation, pelling plaintiff' to make new foundation walls, acting within the scope of its powers, was liable paint and plaster anew in great part of his for cutting ditches and water courses in such a house ; also, great loss of rents; also the general manner as to cause the water to overtow and deterioration.
wash away the plaintiff's land. In the opinion Mallon & Coffey, for plaintiffin crror.
of the court, the principle of the decision is Kunler, Ainpt and Warrington, for defendant | thus stated : “that the rights of one should be in error.
so used as not to impair the rights of another, WHITE, J.
is a principle of morals, which, from very reThe only question in this case is, whether the mote ages, has been recognized as a maxim of evidence supports the verdict. The jury was law. If an individual, exercising his lawful instructed as requested by the defendant; and powers, commits an injury, the action on as the instructions are not set out in the record Case is the familiar remedy; if a corporation, they must be presumed to have been correct. acting within the scope of its authority, should
It appears from the evidence, that the defend- work wrong to another, the same principle of ant in excavating for the avenue on the hill ethics demands of them to repair it;ind no reaside, below the plaintiff's premises, caused son occurs to the court why the same should not damages to his lot as well as to the improve- be applied to compel justice from them.” 10 Ohio ments. The aggregate amount of such damages 160. This case was decided more than forty is stated to have been $985.00; but how much of years ago, and has been often approved since. that sum is attributable the lot without the McComb v. Akron, 15 Ohio 479; Akron v. McComb. improvements, and how much to the improve- 18 Id. 229; Crawford v. Delaware, 7 Ohio S. 459. ments is not specifically stated. The jury as- See also Pumpelly v. Green Bay Company, 13 sessed the damages at $150.00, which was less Wall 166; and Eaton v. Railroad Company, 51 than half the damages admitted to have been
N. HI. 504. sustained, including the damages to the im- In this state, private property is entitled to provements.
the same protection against all classes of corpus The finding of the jury must be presuned to
rations as against natural persons, subject to the have been in accordance with the instructions right of appropriating property to public use of the court, and may have included only the upon the terins of making full compensation. damages to the lot without reference to the im- The case under consideration involves no provements.
question of inconvenience to the owners caused The excavation on the upper side of the ave- by the making of a neighboring or abutting nue, opposite the plaintiff's premises, was twelve public improvement, leaving the corpus of the feet; and the whole surface of the hill moved property intact; but the case is one of the infrom a point on sixth street down, passing diag- vasion or injury of the property itself; and it onally under the plaintiff's dwelling, showing a can make no difference in principle, whether wide opening in the ground.
the property is flooded and the soil washed A. E. Tripp, the city civil engineer testified: away, or the property is injured and the soil re“The cut caused the slip, and we did nothing to
moved from some other cause. It is the injury stop the slip; I saw it at the time. A retaining
to the property that gives the right of action; wall would be the only way to stop a land slide, and the author of it is bound to make reparato put it in by sections as the cut progressed.
tion. We made no wall in front of Keating's lot."
It is claimed on behalf of the city that as A. L. Anderson, who was the city civil engin- the plaintiff's lot does not abut on the avenue, eer at the time of the trial, testified as follows: and as the damages resulted from the removal “The hill is of alternate layers of clay, more or
of the lateral support to the abutting property, less hardensu, und limestone and surface soil, it the city is not liable. The fact that the propis the latter that slips on the smooth surface of erty of others intervened between the lot of the the former. There is no way to prevent the
plaintiff and the avenue can make no difference. slipping, except by, a retaining wall or drains on The liability would be the same whether the the property, made more cheaply by trenches several parcels were owned by one or by differand drains up the hill itself, dug down to the
ent owners. The liability of the city did not solid part of the hill so as carry
away the water, depend upon the character of the ownership of which causes the surface to slide on the layers of the damaged property; but upon the extent to blue clay underneath, as if on glass. It is im- which its wrongful act was the cause of the possible to foresee the weight of the soil that damages. will slip, so as to know the size of retaining In regard to the buildings and improvements, wall required.”
it may be said that there is nothing in their