Estabrook v. Gebhart.

for payment, Estabrook must be held bound by this new contract, though it was not in writing, and must pay the debt. This arrangement or contract, to be binding on Estabrook, must have all the features indicated, the consent of all parties and the extinguishment of two debts. Plaintiff is bound to satisfy you by a preponderance of proof that one or the other of these contracts existed between the parties.

To which charge, and every portion thereof, the said defendant, by his counsel, then excepted.

The jury found for plaintiff, Gebhart, in the amount claimed, and the motion for a new trial having been overruled, a petition in error was filed in the supreme court. The alleged errors are:

1. That said court erred in admitting the evidence offered by said Willian F. Gebhart, to which said Joel Estabrook objected.

2. That said court erred in the instructions given to the jury upon said trial.

3. That said court erred in overruling the motion for a new trial, filed in said case by said Joel Estabrook.

4. That the facts set forth in said petition, filed in said cause by said William F. Gebhart, are not sufficient to maintain said action.

5. That said judgment was given for said William F. Gebhart, when, according to the law of the land, it ought to have been given for said Joel Estabrook.

Boltin & Shuck, for plaintiff in error:

As to whether the promise in question was void, unless in writing, cited: Brown on Frauds, § 197 (2d ed.), 197; 1 Smith's L. C. (5th Amer. ed.), 381; Rogers v. Kneeland, 13 Wend. 114, 121; Nelson v. Boynton, 3 Met. (Mass.), 395; Mallony v. Gillet, 21 N. Y. 427; Easter v. White, 12 Ohio St. 219; Kelsey v. Hibbs, 13 Ohio St. 355; Stewart v. Campbell, 58 Me. 439; Furbish v. Goodenow, 98 Mass. 297; Plumer v. Lyman, 49 Me. 229; Richardson v. Williams, 49 Me. 558; 1 Parsons on Contracts (5th ed.), 218.

Estabrook v. Gebhart.

The giving of the order by Showalter did not operate as an assignment of his claim against Estabrook, if any he had. Harris v. Clark, 3 Comst. 93; Cowperthwaite v. Sheffield et al., 3 Comst. 243; Mandeville v. Welch, 5 Wheat 277; Tiernan v. Jackson, 5 Pet. 580.

Gunckel & Rowe, and Warren Munger, Jr., for defendant in error, claimed that the promise was not within the statute of frauds. Parsons on Contracts (5th ed.), 9; Alten v. Thompson, 10 N. H. 32; Thompson v. Thompson, 4 Ohio St. 133; Bethel v. Woodworth, 11 Ohio St. 393; Swihart v. Shaum, 24 Ohio St. 436; Chamberlain v. Ingalls, 38 Iowa, 300; Blair v. Walker, 39 Iowa, 406; Watkins v. Perkins, 1 Ld. Raymond, 224; Fowley v. Cleveland, 4 Cowan, 423; Nelson v. Boynton, 3 Met. (Mass.), 395; First Baptist Church v. Hyde, 40 Ill. 150; Chitty on Contracts (6th Russell ed.), 559; Mallory v. Gillet, 21 N. Y. 412.

WRIGHT, J. The first error assigned is, that in admitting evidence upon the trial, the bills of exceptions purporting to shows these errors were not taken until after the trial term, and can not be considered here.

But counsel for plaintiff in error argue thus: The record shows only that the bills were "filed" after the trial term, not showing when they were signed and made part of the record; that, in point of fact, they might have been signed and sealed at the trial term, though not “filed” till afterward, and it must be presumed that things were rightly done.

The exception must be taken at the trial term, and it is no exception till "filed" as part of the record. Code, § 294. If, then, not "filed" till a subsequent term, it is only an exception as of that term.

As to the third bill, however, it is different. That was taken to present alleged error in overruling the motion for a new trial. That error, if any, occurred when the motion was overruled, and the bill is properly taken as of that term. This is settled by the cases, City of Dayton v. Hinsey and P. C. & St. L. R. R. v. Porter, ante, 258, 328.

Estabrook v. Gebhart.

The first part of the charge relates to the nature of the alleged promise made by Estabrook. The court told the jury plainly, that if this promise was merely to answer for Showalter's debt, there could be no recovery for want of writing; but, if there was a new contract between Gebhart and Estabrook, by which, to induce Gebhart to furnish the labor and material, Estabrook undertook to pay, out of funds which would be coming to Showalter; that Gebhart furnished the work and material relying on this promise, which he would not otherwise have done, and that Showalter was irresponsible and assented to this arrangement, then the contract might be enforced.

We see no error in this. In 1 Smith's L. C. 507, notes to Birkneys v. Damill, it is said, "When it is doubtful whether the sale was made exclusively on the defendant's credit, the question should be left to the jury." And in 2 Parsons on Contracts, 11: "Whether a contract is collateral or original, may be a question of construction, and then it is for the court; but it is often regarded as a question of fact, and then it is for the jury."

If the jury saw fit to believe the plaintiff's testimony, they could have found that Estabrook did agree to make the payments, and Gebhart refused to work without this assurance; and, without going into an elaborate discussion. of testimony, it seems to us that, though much might be said upon either side, we can not interfere with the verdict on the ground that it is against the evidence. It presents a square conflict between witnesses, and the verdict should have been with that party to whose evidence the greatest credibility attached.

The court further charged, that if the original contract was not made, as Gebhart alleged, yet, if, after the work was done, Showalter being indebted to Estabrook, an arrangement was made, by consent of all, that Estabrook should pay Gebhart, he giving up his claim against Showalter, and looking to Estabrook alone, then Estabrook could

The State v. Kelly.

be held, although there was no writing. The court further saying that such an arrangement must have the features of consent of all parties and the extinguishment of the debts.

This is making a case of novation, and we can only make the same remarks as those applied to the other branch of the case. The matter was fairly left to the jury, and the evidence is not such as would authorize us to interfere with their conclusion. We see no error in the other points made.

SCOTT and ASHBURN, JJ., did not sit.

Judgment affirmed.

THE STATE OF OHIO v. KELLY AND OTHERS.

1. A county treasurer who receives out of the county treasury any allowance or compensation other than that specially provided by law, is liable, under the statute, to an action upon his bond, together with his sureties, for double the amount so received.

2. Having received such allowance while acting as treasurer, or having received it in his capacity as treasurer, he can not defend against the action, when brought, by claiming that in so receiving he was acting merely as a private individual, and not as an official.

3. Such action is properly brought in the name of the State of Ohio, the obligee in the treasurer's bond.

4. Such action is not subject to the limitation of one year, as provided in section 16 of the code, but to the same limitation as that which governs official bonds.

THIS is an action on a treasurer's bond. Jeremiah M. Kelly was treasurer of Logan county, and the other defendants are his sureties. The first cause of action in the petition is as follows:

"The plaintiff, by Duncan Dow, prosecuting attorney in and for Logan county, Ohio, for a first cause of action against said defendant, says: 1. That on the 1st day of September, A. D. 1869, the said Jeremiah M. Kelly, Wm. Rulan, O.

The State v. Kelly.

Hayes, C. Folsom, Joseph Chambers, Abner Riddle, B. E. Brown, William Lawrence, Jonathan Plum, Henry Kelly, Amos Miller, and J. N. Allen, at the county of Logan aforesaid, by their certain writing obligatory, of that date, acknowledged themselves to be held and firmly bound unto the State of Ohio in the penal sum of two hundred thousand dollars ($200,000), and which said writing obligatory was and is subject to a condition thereunder written, and which condition is in the words and figures following, to wit: The condition of the above obligation is such that, whereas, the said Jeremiah M. Kelly was, at the October election, A. D. 1869, duly elected to the office of county treasurer, in and for the county of Logan, and State of Ohio, for the term of two years, commencing the first Monday of September, A. D. 1869, and until his successor shall be elected and qualified: Now, if the said Jeremiah M. Kelly shall pay over all moneys according to law which shall come into his hands for state, county, township, and other purposes, and shall do and perform faithfully the duties of his said offices, as said county treasurer, according to law, then this obligation shall be void; otherwise, the same shall be and remain in full force and virtue in law. 2. That the said Jeremiah M. Kelly did thereupon take upon himself the duties of the said office of county treasurer of said county of Logan, and was such treasurer at the times of committing the wrongs hereinafter stated. 3. That on the 6th day of September, A. D. 1870, said Jeremiah M. Kelly, as such treasurer, did present to the county commissioners of said county the following account for services as such county treasurer, to wit: Logan county, dr., to J. M. Kelly. For safe-keeping, disbursing, redeeming, and canceling Logan county bonds, from September 6, 1869, to September 5, 1870, and for redeeming and canceling coupons during same time, and for sorting and arranging the same in proper order for settlement, $359.48, being seven-tenths of one per cent. on the net collections for 1869 on special duplicate. September 6, 1870. Signed, J. M. Kelly, treasurer. 4. That on the 8th day of September,