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(66 Ohio St. 879) CITY OF DAYTON et al. v. BAUMAN. (Supreme Court of Ohio. June 10, 1902.) MUNICIPAL CORPORATIONS-ASSESSMENTS— WHEN PERMITTED.

1. The limitation of section 19 of article 1 of the constitution on section 6 of article 13, as to assessments, goes to the full extent of prohibiting the raising of money, directly or indirectly, by assessment, to pay compensation, damages, or costs for lands appropriated by the public for public use. Cincinnati, L. & N. Ry. Co. v. City of Cincinnati, 57 N. E. 229, 62 Ohio St. 465, 49 L. R. A. 566, approved and followed.

2. Said limitation does not affect or prohibit the raising of money by assessment to pay for surface improvement of streets, sewers, etc., so long as the assessment does not exceed the special benefits conferred. Walsh v. Barron, 55 N. E. 164, 61 Ohio St. 15, 76 Am. St. Rep. 354, approved and followed.

(Syllabus by the Court.)

Error to circuit court, Montgomery county. Action by one Bauman against the city of Dayton and others. Judgment for plaintiff, and defendants bring error. Affirmed.

The city of Dayton appropriated by proper legal proceedings certain lands for the extension of two streets,-Monroe and Long,-and, having paid the compensation, damages, and costs, made an assessment upon the abutting, adjacent, and contiguous lots for the purpose of raising money to reimburse its treasury for the money so paid out, or else to raise money to pay the bonds issued by the city, by means of which it pledged the public faith and credit of the city, and thereby raised money with which it paid said compensation, damages, and costs. Which method was pursued does not clearly appear, but that the assessment was for the purpose of paying in some form said compensation, damages, and costs is conceded. None of the lots or lands of Mr. Bauman were appropriated, but an assessment was made on his lots for the payment of compensation, damages, and costs awarded to others whose lots had been ap propriated for the extension of said streets. He enjoined the city and proper officers from enforcing the assessments, and, the circuit court having decided the case in his favor, the city came here on error, seeking to reverse the judgment below.

Edwin P. Matthews, City Sol., Charles J. Hunt, and Albert H. Morrill, Corp. Counsel, for plaintiffs in error. Dwyer & Roehm and Young & Young, for defendant in error.

BURKET, J. (after stating the facts). Some technical errors are alleged in the petition, but the question as to the power of the city to make the assessment is the only one regarded as of sufficient importance to warrant a report of the case. It was determined in the case of Cincinnati, L. & N. Ry. Co. v. City of Cincinnati, 62 Ohio St. 465, 57 N. E. 229, 49 L. R. A. 566, that section 19 of article 1 of the constitution is a limitation on section 6 of article 13, as to the power of 64 N.E.-28

assessment; and with that holding we are still fully satisfied. In that case there was $1 awarded to the railway company as compensation for lands appropriated, and over $500 assessed upon the remaining lands for compensation, damages, and costs paid for lands taken in the same appropriation proceedings. It therefore seemed clear in that case that the assessment of over $500 was not an assessment back onto the remaining lands, to raise money to pay the $1 and costs, but was, in part at least, an assessment to pay for compensation awarded to others; and as the whole assessment was held unconstitutional, the holding was, in effect, that no assessment could be made to raise money to pay compensation for lands taken by appropriation. We so understood that case, and what was said in the opinion was with reference to that understanding, and was not obiter, but argument to show that money could not be constitutionally raised by assessment to pay compensation, damages, and costs for lands appropriated by the public for public use. The limitation of said section 19 of the constitution on said section 6, as to assessments, goes not only to the extent of preventing the assessment of the compensation, damages, and costs back onto the lands of the owner remaining after the taking, but to the full extent of prohibiting the assessment of compensation, damages, and costs for land so appropriated upon any real estate whatever. In short, money cannot be raised by assessment to pay such compensation, damages, and costs, but such money must be raised by taxation. Were it otherwise, said section 19 of the constitution could be evaded, and that done by indirection which cannot be done directly.

The public appropriates the land for public use, and the public must pay for the land it so takes. Nothing less than the public can appropriate lands by legal process for public use. If an assessment district should be formed, and a petition filed by such district to appropriate private property for the use of such district, or the public, a demurrer to such petition would be sustained on the ground that the constitution gives no power of appropriation of private property to such assessment district, such district not being the public, and the power of appropriation being given by said section 19 to the public only. The power of appropriation being given to the public only, and only for public use, it follows that the public, the taker, must pay for what it takes, because he who takes from another should himself make restitution, and not compel others to pay for what they have not taken. To permit the public to take private property for public use, and then compel private persons to pay for such property against their will, upon the theory that their lots and lands are benefited, would lead to extravagance, and often to oppression, while to compel the public, which takes the property for public use, to pay

therefor, leads to economy and prudence in taking private property for public use, and therefore said section 19 was made a limitation on said section 6, and the power of raising money by assessment to pay for private property taken for public use is thereby prohibited.

It is urged that in this case no property of the defendant in error was taken, and no assessment made back on the property remaining after such taking, and that, therefore, the principle in Cincinnati, L. & N. Ry. Co. v. City of Cincinnati, supra, does not apply. The answer is that the principle of that case is that said section 19 is a limitation on said section 6 to the extent of a total prohibition of raising money by assessment to pay for private property taken by the public for public use. The principle is, not that those only whose property has been taken are free from assessment, but that no assessment can be made to raise money to pay for property taken by the public for public use. To exempt those from whom some property has been taken and assess others would often lead to inevitable injustice. As the constitution was adopted to promote our common welfare, and for the equal protection and benefit of all, and as that instrument is consistent throughout, a construction which necessarily leads to injustice cannot be a true one, and should not be adopted, and therefore the construction of section 19 is and must be that private property taken by the public for public use, must be paid for by the taker by taxation on the general list, and not by assessment on a comparatively small district.

It is also urged that, if said section 19 is a limitation upon said section 6, so as to prevent the raising of money by assessment to pay for private property taken for public use, the same limitation prevents the raising of money by assessment to pay for sewers, surface improvement of streets, etc. This does not follow, for the reason that in sewers, surface improvement of streets, etc., there is no taking of private property by the public for public use; but, on the contrary, the public confers a special benefit upon the property, and then enforces an assessment not exceeding the benefit so conferred. If the assessinent should exceed the special benefit, it would be unconstitutional, as to such excess, by reason of the limitation of said section 19 on the power of assessment. It was so held in Chamberlain v. Cleveland, 34 Ohio St. 551, and Walsh v. Barron, 61 Ohio St. 15, 55 N. E. 164, 76 Am. St. Rep. 354. While a sewer or surface improvement of a street may, to some extent, be used by the public, and therefore be in part for public use, the power of assessment exists only to the extent that the improvement is for the special benefit of the lots and lands to be assessed over and above the general benefit to the public. Said

section 19 is a limitation upon the power of assessment for the use of the public, because to assess private property beyond the special benefits conferred thereon by an improvement, to pay for such improvement for the use of the public, would be taking private property for public use without first making compensation therefor; while to take back by way of assessment a part or all of the special benefit conferred by the improvement is not a taking of private property for public use, and such assessments are not prohibited by said section 19 of the constitution.

It is urged that to affirm the judgment in the case at bar involves the overruling of Meissner v. City of Toledo, 31 Ohio St. 387; Chamberlain v. City of Cleveland, 34 Ohio St. 551; Raymond v. Cleveland, 42 Ohio St. 522; and Krumberg v. City of Cincinnati, 29 Ohio St. 69. This last case was reviewed in Cincinnati, L. & N. Ry. Co. v. City of Cincinnati, 62 Ohio St. 465, 482, 57 N. E. 229, 49 L. R. A. 566, and needs nothing further here. Meissner v. City of Toledo, 31 Ohio St. 387, construed the statutes then in force, and did not pass upon their constitutionality, but assumed them to be constitutional. The question of their constitutionality was not raised or decided. The case of Chamberlain v. City of Cleveland, 34 Ohio St. 551, was decided in the light of City of Cleveland v. Wick, 18 Ohio St. 303, and the question as to whether money could be raised by assessment to pay for private property taken for public use was not raised, and was not argued or decided, but was conceded by counsel and assumed by the court. In the subsequent case of Raymond v. Cleveland, 42 Ohio St. 522, the judge delivering the opinion, in speaking of that case, on page 525, says: "It is sufficient to say that the validity of the statutes upon the subject was not questioned, nor was the power to make an assessment for the improvement doubted." The same is true of Raymond v. Cleveland, 42 Ohio St. 522. The validity of the statute and the power to make the assessment were both admitted in that case, and the only question argued, considered, or decided was as to the proper construction of the statute, assuming the same to be constitutional. The question now before this court in the case at bar was not raised in any of those cases, but was regarded as decided by City of Cleveland v. Wick, supra; and, this last case having been overruled, the superstructure, so far as founded thereon, must fall. As to the questions passed upon in those cases in the construction of said statutes, and not their constitutionality, we regard the cases sound, and not in conflict with the conclusion reached by the court in this case. Judgment affirmed.

SPEAR, DAVIS, and SHAUCK, JJ., con

cur.

(66 Ohio St. 344)

UNION CENT. LIFE INS. CO. v. HOYER. (Supreme Court of Ohio. June 10, 1902.) CONTRACT OF EMPLOYMENT-ASSUMPTION OF EMPLOYER'S LIABILITY-CONSENT OF

EMPLOYE-NOVATION.

1. A written contract, whereby one party employs another to render services for a fixed period and at a stated rate of compensation, may be discharged as to the employer by the assumption of its obligations to the employé by a third person with the knowledge, consent, and to the acceptance of the employé, and such consent and acceptance may rest in parol.

2. The consent to and acceptance of the terms of such contract of novation need not be express, but the same may be implied from the facts and circumstances attending the transaction and the conduct of the parties thereafter.

3. Where such facts, circumstances, and course of conduct are in dispute between the parties, it was error for the court to refuse to charge the jury that the consent to and acceptance of the terms of the contract of novation as to him might be implied from the attending facts and circumstances and the conduct of the parties thereafter; and it was error to charge in its stead that the new contract was not binding upon the employé unless he was a party to it, or agreed to accept under it. (Syllabus by the Court.)

Error to circuit court, Franklin county.

Action by Douglas F. Hoyer against the Union Central Life Insurance Company. Judgment for plaintiff. Defendant brings error. Reversed.

Douglas F. Hoyer, defendant in error, by virtue of a written contract for that purpose, dated January 13, 1891, became the agent of the plaintiff in error to render services exclusively for it in Holmes and Knox counties, the service to consist of canvassing for applications for insurance in said company and the collection and paying over of premiums on such insurance when effected. The term of said service was fixed at five years, and according to the contract set out in the petition the plaintiff below was to make monthly reports of his transactions for the company and remittances of moneys collected to W. E. Hoyer, who was its general agent. It was stipulated in the contract that if the plaintiff failed to comply with any of its conditions, duties, and obligations, or, should the amount of new business secured by the agent prove insufficient or unremunerative, in the opinion of the officers of the company, or if the agent failed to conduct his business in a satisfactory manner, the company could terminate the contract. The compensation for the agent was agreed to be a certain commission upon the premiums paid to the company on policies effected by him, and, in addition to such commissions, the insurance company guarantied to the plaintiff $60 per month and his necessary traveling expenses when on business for the company, and, in case the commissions exceeded the amount so guarantied and expenses at the end of the year, the excess should belong to the agent. The following is another clause of the contract: "This contract may be terminated upon the service of notice by the company upon said agent for

good cause in accordance herewith; otherwise shall continue in force for the term of five years from January 1, 1891," etc. The agent was paid for services rendered and expenses during the years 1891 and 1892, but he claims to have rendered services during the years 1893, 1894, and 1895, for which he has not been paid except a credit by commissions in the sum of $448.22, leaving a balance due of $1,591.78, with interest. The foregoing is a summary of the petition filed by defendant in error in the common pleas against the plaintiff in error. It contained an averment that the plaintiff had fully performed all things required of him by the contract, and prayed judgment for the amount due. The insurance company, by answer, denied that plaintiff had kept the contract on his part to be performed; and, among other things, alleged that by the contract this agent was to make monthly reports of business and remittances of collections to the company which he had not done; that he had not operated in Holmes and Knox counties as required, and stated other particulars of default in duty of the plaintiff. In reference to the guaranty of compensation the insurance company asserted in the answer that in a contract made in February, 1891, between the insurance company and W. E. Hoyer, a brother of the plaintiff, it employed said W. E. as its general agent, and that as a part of the consideration for said contract the said W. E. Hoyer assumed to pay the plaintiff, Douglas F. Hoyer, and perform towards him the written guaranty sued on, and that he would save said company harmless on account of the same; and that, having knowledge of this contract of assumption, the plaintiff assented to the same, and thereafter looked solely to W. E. Hoyer, and never called upon the company for any settlement or payment until shortly before this action was commenced, March 23, 1899. The reply of plaintiff denied all these averments of new matter. these issues joined the jury found for the plaintiff, and judgment was rendered on the verdict, which the circuit court affirmed. The plaintiff in error relies for reversal of the lower courts on the grounds that the trial court erred in charging the jury and in refusing to charge as requested. The terms of the charge are stated in the opinion.

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anty sued on, and that the latter, having full knowledge of the contract of assumption by W. E., consented to and adopted the same, and thereafter reported to this general agent, and looked to him for payment for his services, and not to the insurance company. There was evidence before the jury which tended to support this issue as tendered by the company. The plaintiff below denied all knowledge of his brother's agreement to assume the guaranty and to discharge its obligations to him, and likewise denied that he ever assented to the substitution of his brother in the contract, or that he accepted or adopted the same. This being the character and importance of the controversy, it was the duty of the trial court to so instruct the jury that it would have no trouble in applying the law to the evidence as to the effect of the facts, circumstances, and the conduct of the plaintiff below, which were largely relied upon by the insurance company, to prove his knowledge and acceptance of the new contract so far as it related to him.

It is not doubted, as a question of law, that if the plaintiff did have such knowledge, and assented to the substitution of W. E. Hoyer as the guarantor in the place of the insurance company, and accepted him as paymaster for services thereafter to be rendered, there was thus established a novation of contract which would release the insurance company from all further liability to him for such services. This novation of contract might be brought about by the substitution of a new debtor in place of the old one with intent to release the latter. And it is not essential that the assent to and acceptance of the terms of novation be shown in express words to that effect, but the same may be established by sufficient attending facts, circumstances, and subsequent course of conduct. The plaintiff, by parol, could have released the insurance company from its written guaranty to him; and, if the contract of novation between the company and W. E. Hoyer was made as alleged, it was competent for the plaintiff to accept by parol the provisions made therein for him. Hence the duty of the trial court to inform the jury of these elementary principles for their guidance, and it was a proper case in which to instruct the jury, not as to what weight they should attach to any fact or circumstances presented, but what fact, circumstances, or course of conduct of the parties, as disclosed by the testimony, it was their duty to consider as bearing upon this part of the controversy. This duty, we believe, the court did not fully perform. On the prominent, if not the paramount, issue we have been considering, the charge of the court is very scant. It has the virtue of brevity, but in this case the brevity became a fault. The jury was told in the most general terms that the plaintiff held the affirmative to show that there was something due him from the defendant, and that, if he satisfied them by a preponderance of the testi

mony that something was due him, they should so find, but, if he failed to so satisfy them, the verdict should be for the defendant. This was followed by a statement that, if the plaintiff satisfied the jury of the validity of the contract (a matter not in the case), and that something was due him, the sum due, with interest thereon, should be the verdict. The jury was next told to look to the services performed under the contract between the plaintiff and the insurance company, and that for services rendered he was entitled to $60 per month, less any commissions on business done by him during that time. Further, the court said that, if this contract was in any way terminated by the plaintiff, he would not be entitled to recover for any services rendered after that time; and, if it was terminated by the defendant by notifying the plaintiff of that fact, he could not recover for services rendered after such notice. The court then added: "But to terminate it by notice the company would have to give that notice to the plaintiff, would have to bring it to his attention, so that he had knowledge of the fact. It would not be sufficient on the part of the defendant to terminate the contract by notifying some of the other agents, -for instance, W. E. Hoyer, the general agent here. If that was not communicated to the plaintiff in this case, he would not be bound by it." This language was good law, so far as it goes, on one phase of the dispute between the parties; but it did not touch upon what seems to have been the vital question raised by the pleadings and the testimony, namely, the plaintiff's knowledge of the contract of novation, his acceptance of the terms of the same, and his conduct thereafter in performance of the services. This was a subject of serious dispute between the plaintiff and defendant. No mention was made of the doctrine of novation of contract. At this stage of the charge counsel for the insurance company made the following request: "Mr. Powell: I would like to ask the court to charge this: If they find from the evidence that W. E. Hoyer, the general agent, in February, 1891, assumed the guaranty named in the written contract, of $60 per month, and the plaintiff in this case learned of that fact, and accepted it, and acted upon it, and waived his claim for commissions on that account, then he could not recover." This request invited the attention of the court to the question of novation, and it should have met with a suitable response. The court, however, said: "If there was a contract between the company and W. E. Hoyer, by which W. E. Hoyer assumed and agreed to pay the guaranty under the contract between D. F. Hoyer and the insurance company, and D. F. Hoyer was a party to that contract between W. E. Hoyer and the company of the assumption on the part of W. E. Hoyer, or if the plaintiff agreed to that contract, and agreed to accept W. E. Hoyer as guarantor under that contract, then he would have to look to W. E

Hoyer for it. But if the contract between W. E. Hoyer and the company of assumption on the part of W. E. Hoyer of the guaranty in the contract between D. F. Hoyer and the company was simply between W. E. Hoyer and the company without the knowledge or consent of D. F. Hoyer, then it would have no effect on him, and would simply be a contract between W. E. Hoyer and the insurance company, and would not bind the plaintiff in this case. In other words, it would not bind him unless he was a party to it, or agreed to accept under it." It will be seen that the jury was not told what the effect on the case would be if the plaintiff had had knowledge of the new contract, and consented thereto, but it was made prominent throughout the not very lucid paragraph that the contract between W. E. Hoyer and the insurance company would not bind the plaintiff unless he was a party to it, or agreed to accept under it; and the jury might well understand the court to mean that, if the plaintiff was not a party to the novation contract, he was not bound by it, unless by express words he agreed to accept under it. There was no room left for the jury to imply such an agreement from all the attending facts and circumstances, and the conduct of the plaintiff's business thereafter. The charge falls far short of what was asked by counsel for the insurance company, and the instruction solicited is not, in either form or substance, found in any part of the charge, and for this reason the case was not properly and fairly submitted to the jury.

For error in the charge, and for not charging as requested, the judgments of the circuit and common pleas are reversed, and cause is remanded. Judgment reversed.

BURKET, SPEAR, DAVIS, and SHAUCK, JJ., concur.

(66 Ohio St. 400)

GALE v. PRIDDY. (Supreme Court of Ohio. June 10, 1902.) TRIAL SPECIAL VERDICT-SUBMISSION OF PARTICULAR QUESTIONS.

1. A request that the court will direct the jury to render a special verdict in writing upon any or all of the issues in the case is not a request to instruct the jury that, if they find a general verdict, they shall find specially upon particular questions of fact, as provided in Rev. St. § 5201.

2. Rev. St. § 5201, so far as it relates to special findings upon particular questions of fact, is mandatory only when the request therefor contains the condition that the questions which are submitted shall be answered in case a general verdict shall be rendered.

3. The trial court should exercise with great deliberation and caution the power of withdrawing or refusing to submit questions propounded; and although the questions must be such that the answers thereto will establish ultimate and determinative facts, and not such as are only of a probative character, yet questions the answers to which establish probative facts from which an ultimate material fact may be inferred as a matter of law should be

allowed. Schweinfurth v. Railway Co., 54 N. E. 1109, 60 Ohio St. 215, explained and quali fied. Railroad Co. v. Hawkins, 60 N. E. 558, 64 Ohio St. 391, approved and followed. (Syllabus by the Court.)

Error to circuit court, Wood county. Action by one Priddy against one Gale. Judgment for plaintiff. Defendant brings error. Affirmed.

W. G. Elliott and Baldwin & Harrington, for plaintiff in error. Chas. A. Strauch and James & Beverstock, for defendant in error.

PER CURIAM. The question raised in this case is concerning the refusal of the court of common pleas to instruct the jury to find specially upon particular questions of fact submitted by the plaintiff in error, who was defendant in that court. This was assigned as error in the circuit court, and the judgment of the common pleas was affirmed. It appears from the record that at the close of the testimony, before the argument of the case, and at the time defendant submitted his request to charge, the defendant also submitted to the court, in writing, certain requests to direct the jury to give a special verdict in writing, upon certain issues as follows (here follows the title of the case, and continuing): “And we return the questions submitted to us with our answers thereto, as follows, to wit:" (Here follow the questions, with a blank space after each for answers thereto, concluding with:) "Upon consideration whereof, the court refused each and all of said requests severally, to which refusal defendant then and there excepted." It does not appear that the court was requested to instruct the jury "to find specially upon particular questions of fact," although questions seem to have been prepared and submitted to the court for the purpose of procuring such a special finding. Instead of such a request, the record shows that the defendant requested the court "to direct the jury to give a special verdict in writing upon certain issues," which is a very different thing. It does not appear that a special verdict on any "issues" was prepared and submitted as is the general and proper practice in such cases. 22 Enc. Pl. & Prac. 993. But it does appear that certain "particular questions of fact" were prepared, which counsel doubtless desired to have answered by the jury. A "particular question of fact" (section 5201, Rev. St.) is something different from, and less than, an "issue"; and the object of the statute is that these special findings, if inconsistent with the general verdict, may control it. Manning v. Gasharie, 27 Ind. 399. It is stated in the record that "upon consideration whereof, the court refused each and all of said requests, severally." We are not able to say from that which is disclosed in the printed record that any of these questions called for more than evidentiary matter; but whatever may be the extent to which the trial court may scru

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