Superior Court of Cincinnati. 215 215 STREET ASSESSMENTS. [Superior Court of Cincinnati, Special Term, 1891.] J. S. CRAWFORD V. CINCINNATI (CITY) ET AL. Where council before an improvement is made, determines by ordinance that the cost shall be assessed per front foot upon the property abutting thereon, the question of benefits cannot be considered. This was an action to enjoin the collection of an assessment made on plaintiff's lot, situated on Blue Rock street, at its intersection with Colerain avenue. Colerain avenue crosses Blue Rock street obliquely, and the improvement in front of the west end of plaintiff's property is a triangler space tapering to a point. Plaintiff claimed that the assessment "was excessive, and far beyond the amount of benefits that had been conferred upon his said property by said improvement," that the action of the board of city affairs in passing the assessing ordinance “was irregular and illegal, because they had assessed the property along the said improvement by the foot front solely, and had no regard to the amount of benefits conferred on the lot by the improvement, and did not take into consideration the benefits of the improvement to this plaintiff's property; and further, that the cost of improving the aforesaid triangular interesection of Blue Rock street and Colerain avenue was assessed upon the plaintiff's property where, under the law, it should have been borne by the city of Cincinnati. SAYLER, J. The ordinance to improve Blue Rock street, provides that one-half of the entire cost of said improvement shall be paid by the city of Cincinnati, and the other one-half of entire cost of said improvement, including interest on bonds, if they be issued, shall be assessed per front foot upon the property abutting thereon, according to the laws and ordinances on the subject of assessments for such improvements, etc. Section 2293a, paragraph 7, Rev. Stat., provides that one-half of the cost of such improvements shall be paid by the city at large, and that such payment shall be held to include all other costs of such improvement required to be paid by the corporation, including the cost as to intersections. I think the meaning of this provision is that the one-half paid by the city, includes all it shall pay, and that the remaining one-half of the entire cost shall be paid by an assessment under sec. 2264 Rev. Stat. If that be correct, then, the city having paid its one-half, the question of costs of the intersections is no longer considered, but the remaining onehalf of the entire cost is to be paid by the assessment under the statutes. Not considering sec. 2293a Rev. Stat., and only considering sec. 2275 Rev. Stat., the property owner is relieved from the payment of the cost of intersections; but considering sec. 2293a, the property owner is relieved from the payment of one-half of the entire cost of the improve ment. Under sec. 2264, the assessment may be on the abutting and such adjacent and contiguous or other benefited lots and lands in the corporation, as follows: First, either in proportion to the benefits which may result from the improvement, or, second, according to the value of the property assessed, or, third, by the foot front of the property bounding and abutting upon the improvement, as the council by ordinance, setting 215 Crawford v. City of Cincinnati et al. forth specifically the lots and lands to be assessed, may determine before the improvement is made, and in the manner and subject to the restrictions therein contained. By the ordinance the council determined before this improvement was made, that the cost should be assessed per front foot upon the property abutting thereon. The question of benefits therefore is not to be considered, or rather the act of council precludes the consideration of benefits sec. 2271, Rev. Stat., providing that the assessment shall not exceed 25 per centum of the value of the land after the improvement is made. The case of Chamberlain v. Cleveland, 34 Ohio St., 551, was a case in which the assessment was levied on the lots benefited by the improvement, and is not applicable to the case at bar; but in that case the court say, on page 558, "all the assessment cases heretofore decided in this court were frontage assessments, and apportioned by frontage. It is well settled that such assessments, when properly made by municipal corporations to pay for street improvements, are constitutional." The case of Wewall v. Cincinnati, 45 Ohio St., 407, has reference to a sewer assessment, and the only similarity between such an assessment and an assessment for street improvements is that in both cases there are limitations. I think from the evidence that the property abuts 159.80 feet on the improvement. The petition will be dismissed at plaintiff's costs. Affirmed in general term. Keam & Keam, for plaintiff; W. H. Whittaker, assistant corporation counsel, contra. ALIMONY. [Franklin Common Pleas, 1891.] CLARA E. WARNER V. ORIN S. WARner. 217 Alimony pendente lite cannot be recovered where the petition charges that there never was a valid marriage. Mrs. Warner married before she was sixteen, and she therefore claims that the marriage ceremony was void. The couple separated before Mrs. Warner became of age. As she was still under age when she filed her suit for divorce she was compelled to bring it through an uncle, a Mr. Jennings, asking that her marriage be declared null and void. The other day she asked for an allowance of temporary alimony, and this was the matter the court passed on. Judge Pugh held that as the suit is now before the court, it is both an action to annul a contract and an action for divorce. The claim was made by her that there never had been a marriage in law, and the Judge decided that under the circumstances Mrs. Warner was not entitled to a decree of temporary alimony. To get alimony the papers in the case will have to be amended and the charge that there never was a marriage eliminated. Mrs. Warner also has a suit in court to set aside a deed made by her husband to his mother of his property. She charges that he transferred the property to beat her out of her dower. If she was not legally married she has no dower in the property.-(Editorial.) 1. The contract of an agent for his principal, made with himself, is prima facie void, and if it shows the agent's double and antagonistic capacity on its face, it carries notice to subsequent holders. 2. Hence notes of a corporation, signed in its name by its president and secretary, payable to the president's order, are presumptively unauthorized; and subsequent indorsees, though for value and in good faith and before maturity, take with notice. This suit is brought to compel the trustee in insolvency of the T. J. Nottingham Manufacturing and Supply Company to allow as a valid claim, and pay a dividend upon four notes held by the plaintiff, aggregating $1,831.50, each signed by the The T. J. Nottingham Manufacturing Supply Company, by T. J. Nottingham, president, and H. C. Whitson, secretary, to the order of F. J. Nottingham, and indorsed by him and payable respectively in two, three, four, and five months after date, and all dated May 15, 1884. The plaintiff was an employee of the Nottingham Manufacturing Company and owned about $1,800 of stock. In May, 1884, fearing its solvency, he tried to sell the stock, and finally offered it to Nottingham, who promised to let him know in a day or two, the plaintiff saying that instead of cash he would be satisfied with security for the price. On May 15th, Arnkens went to the company's office, and there Nottingham said he would buy the stock for $1,800, and said I guess these will be satisfactory, handing him the four notes already drawn up and dated on that day. Arnkens then handed over the stock and took the notes in good faith, Nottingham saying they were all right and that the company was good. Six weeks afterward, on June 24th, the company assigned for benefit of creditors. The defendant, who succeeded the assignee for benefit of creditors, has declared partial dividends, but refuses to allow this claim. T. J. Nottingham was president of the company, at a salary of $2,000 per annum. He also owned the leasehold of the premises on which the business was carried on, and the company paid him a rent therefor of $3,600 per annum. But in fact nothing was due him at the date of the notes, he being then deeply indebted to the company. He had full power of making notes in the company's name, and frequently did so in the course of its business. The plaintiff claims that, as Nottingham might have been a creditor of the company by reason of the salary and rent account, these notes were, therefore, within the scope of his authority, and hence that plaintiff's position as endorsee for value before maturity cannot be attacked unless bad faith is shown. BATES, J. As between Nottingham and the company these notes were worthless. It is very apparent that if he had never parted with them, but sued upon them himself, he could not have recovered against the company, for it owed him nothing. 221 Arnkens v. Rouse, Trustee. Had the transaction been upon the company's account, as for the purchase of supplies or the payment of a company debt, the notes would have been perfectly good in the plaintiff's hands. But the plaintiff confessedly acquired them in a transaction with Nottingham unduly, and not on company account, and the conclusion is irresistible that Nottingham was using the company's name as security for his own debt, or giving its credit for his individual use. And if the plaintiff knew this, the notes would be as void as if made payable directly to him instead of to Nottingham. But the plaintiff did not know this, and being a workman, inexperienced in business, did not for an instant suspect that the notes were unauthorized. For the plaintiff the principle is urged of Johnson v. Way, 27 Ohio St., 374, and Kitchen v. Loudenbach, 2 Circ. Dec., 129, that a bona fide holder of a note cannot be defeated because he was negligent, or because the circumstances ought to have excited the suspicions of a prudent man unless actual bad faith or want of honesty on his part be shown. This is undoubtedly the law in order to favor the untrammelled use of negotiable paper, but it does not apply to supply a want of power to execute, on the face of the paper. The principle of law controlling this case is that an agent authorized to contract for his principal, cannot bind the principal by a contract made by or with the agent in favor of himself. The actual presence of a private interest in the agent always disables him from binding his principal in the transaction, and marks the limit beyond which no authority can go unless expressly conferred for the occasion. And if the contract or note announces on its face the presence of this antagonistic relation and inconsistent attitude, it carries warning to every subsequent taker. Now certainly, every corporation note carries on its face a warning that the person making it may not be authorized, for he is but an agent using his principal's name. If the corporate business is such as to require the use of credit, the authority of the officer may be safely assumed if the note is in ordinary form. But if the note is payable to the officer himself, who signed the company's name to it, it is not in a usual form, and carries on its face the announcement that such officer may be using the powers of his agency where his personal interest is or may conflict with that of his principal, and is entitled to exactly the same consideration, and no more, that a note signed by a private person per agent, pavable to the agent himself, would receive. No matter in whose hands, such a note imposes on everv taker-unless taken in the principal's business-the obligation to inquire into the agent or officer's authority to make it. The duty to inquire is not even dispensed with where the agent is the only accessible person and would probably give a false answer, as was held in one of the Doughty over-issue cases. N. O. & T. P. Ry. v. Third National Bank, 1 Circ. Dec., 109. Cin. A brief examination of the authorities will show the correctness of the above postulate that a note made by an agent to himself carries warning in its face. Thus where a note, made by the Marine Lumber Co., by J. C. Maxwell, its president, payable to Road & Maxwell, of which firm the president was a member, was discounted by a bank for Road & Maxwell, on Maxwell's statement that it was for a debt due him from the Lumber Co.-it was held that the face of the note carried notice, and imposed on the bank the duty of ascertaining the agent's authority. Third National Bank v. Marine Lumber Co., (Minn., 1890), 46 Northwestern Rep., 155. The same principle was applied in the case of an individual principal where G. Tysen, as agent of D. Tysen, signed a note D. T. per G. T., Hamilton Common Pleas. 221 payable to G. & T. & Co., and this firm indorsed the note to the plaintiff, and the court said the face of the note was enough to raise a strong suspicion, not to say conviction, that the whole was a fraud on the principal. Stainer v. Tysen, 3 Hill., 279. See also Stambak v. Bank of Virginia, II Gratt., 281. So where a cashier made four certificates of deposit in the name of the bank per himself, payable to his own order, and indorsed them over, and the bank having failed, its assignee refused to allow the claim; the certificates were held presumptively void on their face. Lee v. Smith, 48 Mo., 304. A person who receives from an officer of a corporation its notes for the officers private debt, does so at his peril, and is deemed to take them with notice of the rights of the corporation. Wilson v. Metropolitan Elevated Ry., 120 N. Y., 145. So where a cashier fills up stock certificates, signed in blank by the president, to his own order, and uses it to obtain a loan. Morris v. Citizens National Bank, 15 Fed. Rep., 141, (Affirmed 111 U. S., 156). Or where the directors made a note to one of their number who sold it to the plaintiff. Gallery v. National Exchange Bank, 41 Mich., 169. If the name of the corporation is written as security by an officer on his individual paper, this, of course, carries notice. West St. Louis Savings Bank, 95 U. S., 557. This principle is well known in the law of partnership; if the firm name appears as security, it is prima facie unauthorized, and binds only the signing partner. See Bades on Partnerships, secs. 349-351. Where a person bought bonds of a school board from one whose name appeared on them as one of the directors, and they had in fact been redeemed, but not cancelled and destroyed, he has notice from their face of the want of authority Board of Education v. Linton, 41 Ohio St., 504, 513. Some cases go farther, and hold not merely that such paper carries notice and is merely presumptively unauthorized, but that it is wholly void. Thus, where the cashier of a bank certified his own check, and it was held by one who had given full value, the certification was ruled to be wholly void, even if the cashier had funds, because of his double relation to the paper. Claflin v. Farmers' and Citizens' Bank, 25 N. Y., 293 (reversing 36 Barb., 540). So a note by the president and secretary of the People's Steam Navigation Company, payable to the president and directors, was held to be wholly void in their hands, on the doctrine that directors cannot make notes to themselves. Wilber v. Lynde, 49 Cal., 290. So where the president made a note of the corporation to a person who loaned him money, and the directors, by his casting vote, allowed him a salary, and ratified the note, part of the proceeds being used to pay the salary, and a subsequent board of directors repudiated the act, the note was held void as to the corporation. Chamberlain v. Pacific Wool-Growing Company, 54 Cal., 103. The result of this case must therefore be very plain. A corporation note is made by the officer, payable to himself; there is therefore no question of the degree of negligence or diligence affecting an indorsee, for the note itself informs him that the authority to execute at all is presumably absent, and that no rights not possessed by the payee can be acquired. Hence the judgment must be for the defendant. Wilson & Herrlinger, for plaintiff. Stevens, Lincoln & Smith, for defendant. |