Cuyahoga Circuit Court.

lating any law of this state, or any legal ordinance of a city or village, until a legal warrant can be obtained.

We are of the opinion that whether the arrest is made under a warrant or in pursuance of the authority given by this statute, and the person arrested is tried and convicted of the offense for which the arrest is made, the officer is fully protected from a civil action by the party arrested. The conviction is conclusive of the right of the officer in making the arrest, if the conviction was for the offense for which the arrest was made, and to the same extent as if the arrest had been made under a warrant. If the trial and conviction were for an offense other than that for which the arrest was made, whether by warrant or on view, it is no protection as a matter of law. It would be competent undoubtedly to show if such was the fact, that the arrest was made upon information given to the officer, and not on view. Just what effect should be given to that fact if established, it is unnecessary now to decide. It clearly appears that the arrest and conviction in this case were for the same offense. The record plainly discloses the facts that the defendant in error was arrested, tried and convicted of an offense under an ordinance which we hold to be a valid enactment, and that she now seeks to hold the officers making the arrest responsible in a civil action, to her in damages for the injury resulting from that arrest. When called to an account by the municipality for the violation of one of its ordinances, she is in the forms prescribed by law adjudged guilty of an offense, and yet for that same transaction she seeks to call the officer making the arrest to an account to her for the arrest made. She is guilty when prosecuted by the municipality, not guilty when she prosecutes the officer making the arrest. The record of this case clearly establishes the fact, and any other finding would be against the evidence, that the arrest was made for an offense under this ordinance, that the defendant was taken inmediately before the president of the board of trustees, an affidavit filed, a warrant issued, and the prosecution proceeded in the way pointed out by the statute. We think that that conviction is conclusively upon the rights of the officer who made the arrest.

Some minor questions are made in the case, one whether the record of the proceeding before the president of the board of trustees was properly in evidence. It was offered in evidence under objection, and subsequently a ruling had which counsel for defendant claims excluded it entirely from the case, while counsel for plaintiff claims that it was still left in the case. It was not very clear who is right. On page 37 of the record it appears that counsel for the officer asked the court to exclude certain evidence from the consideration of the jury.

"We now move that all testimony in this case relating to anything which happened or took place from and after the time of making the affidavit, and the issuing of the warrant be taken from the jury.

"To the granting of which motion plaintiff objected.

"THE COURT. The court is of the opinion that the motion to strike from the record the testimony concerning the transaction subsequent to the issuing of the warrant should be granted.

"To which ruling of the court the plaintiff then and there excepted." Then further: "In order to save time, your Honor, we will now move that the case be taken from the jury and that they be directed to return a verdict for the defendant Billington on the strength of the affidavit and on the judgment of the court which has been offered in

Billington v. Hoverman.

evidence. Which said motion was refused and overruled by the court: to which ruling the defendant then and there excepted."

We are of the opinion that the court did not intend to take from the jury the record of that transaction and conviction so far as it had any legitimate bearing upon what preceded the filing of the affidavit. And that position is strengthened by the ruling of the court as appears on pages 90 and 91 of the record. The court sustained an objection to the introduction of certain evidence. Counsel then said they proposed showing that the judgment, referring to the judgment before the mayor, was rendered in relation to the facts in the case at the time the arrest was made; showing that both court and counsel were dealing with that record later on in the case.

So far as the petition in error filed by Billington is concerned we are of the opinion that the motion for a new trial, in view of the charge and the evidence offered in the case, should have been granted, for the reason that the verdict of the jury was against the evidence and the law of the case.

A cross-petition was filed in behalf of the defendant in error here, to reverse the judgment entered in behalf or the president of the board of trustees. At the close of the vidence offered by the plaintiff below, the court directed a verdict in favor of Tyler, president of the board of trustees, and that is sought to be reversed. Without going into a discussin of the merits, the court we think was right in the rulings in that regard, and that the mayor was fully protected by the record of the proceedings before him that were offered in evidence.

The judgment of the court of common pleas will be reversed and the cause remanded.

Dickey, Brewer & McGowan, and Hadden & Parks Bros., Attorneys for Plaintiff in Error, John Billington.

C. L. Tyler, W. C. Rogers & H. M. Bull, Attorneys for Defendant in Error, Christine Hoverman.

Hamilton Circuit Court.

REPLEVIN-SALE.

[Hamilton Circuit Court, November Term, 1896.]

Smith, Swing and Cox, JJ.

HENRY W. KING, et al. V. J. E. HOPKINS ET AL.

SELLER MAY RESCIND THE Sale and Replevy the PROPERTY. Where the purchaser of goods has made a representation as to a material matter, relied and acted upon by the other party, and which he was authorized to rely upon, and which the person making it believed to be true, and the facts justified the belief, the person to whom such representation is made is authorized to rescind the contract and take the property by replevin proceedings, as he might do in a case of actual fraud.

ERROR to the Court of Common Pleas of Hamilton county.

SMITH, J.

The principal question discussed by counsel in this case was, whether the trial court erred in the instructions, general and special, given to the jury, or in refusing to give certain special charges asked for by the plaintiffs in error, who were the plaintiffs below. A bill of exceptions was allowed by the court on the overruling of a motion for a new trial filed by the plaintiffs, based in the rulings of the court as to the rejection of evidence offered by the plaintiffs; and on the ground that the verdict rendered was against the weight of the evidence, which bill contained all of the evidence received, the charges given and refused, and the exceptions taken to the rulings of the court at the trial.

The action was one brought by the plaintiffs against Hopkins and Mr. Stahlberg, the latter of whom was the assignee of Hopkins, for the benefit of his creditors. It was an action of replevin, and sought to recover the possession of a large amount of clothing which the petition alleged was the property of the plaintiffs, and that they were entitled to immediate possession of the same, and that Mr. Stahlberg wrongfully kept them out of the possession thereof. All of these averments were denied by the answer of the defendants. The papers show that certain of the property described in the petition, and in the affidavit in replevin, was taken by the officer under the writ which was issued, and that, on the execution of the undertaking provided for by the statute, the same had been delivered to the plaintiffs.

On the trial of the case the evidence showed substantially this state of facts, or at least tended to show it: That on or about the 7th day of September, 1892, Hopkins, then a resident of Cincinnati, and engaged in selling goods there on the installment plan, applied to plaintiffs, wholesale merchants doing business in Chicago, to purchase goods from them to be sold at his place of business in Cincinnati, and as he wished to buy on credit, plaintiffs had a conversation with him in regard to his property, indebtedness, etc., in order to determine whether they would extend credit to him. At that time Hopkins represented to plaintiffs, "that he had a stock of goods worth $18,000, and that he always had more accounts on his books than sufficient to meet his outstanding indebtedness." He did not state the amount of his indebtedness, or in what shape it was, or whether any of it was evidenced by judgment notes. No inquiry as to this was made by plaintiffs.

King et al. v. Hopkins et al.

The plaintiffs, relying upon those representations, sold to Hopkins, on the 12th and 23d of September goods to the amount of $1,180.50, which were at once shipped to him at Cincinnati, and by the agreement of parties. Hopkins was to pay for them in four months from November 15, 1892. No money was paid therefor by defendant then or afterwards, and no notes or securities taken. The evidence further tended to show that at the time these representations were made, Hopkins had valid judgment notes outstanding against him to the amount of about $11,000.00 held by two firms, in addition to other amounts which he owed to other persons. That, being pressed for payment on those notes, he made an arrangement with Mr. Stahlberg, November 16, 1892, after the recovery of judgments on the judgment notes. That at that time Hopkins' liabilties were about $26,000.00. That $6,400.00 was realized by the assignee from the stock and fixtures, but nothing was realized from the accounts. That the stock and fixtures were appraised at $7,540.00, and the accounts at $1,582.50; that this appraisement of the goods was at about 50 cents on the dollar, and was a fair appraisement. As we gather from the evidence, the nominal value of the accounts at the time of the assignment was about $5,000.00, and the value of the stock of goods held at the time the representations were made, was considerabley less than it was at the time of the assignment, and it is probable, too, that it was so as to the amount and value of the accounts, or at least about September 1st. There was evidence, too, tending to show that the plaintiff, to whom he made these representations, believed them to be true, and had ground so to believe.

Leaving out of view for the present the question as to the representation that his stuck of goods was then worth $18,000.00, what is the meaning of representation "that he always had more accounts on his books than sufficient to meet his outstanding indebtness." It seems to us that it was a representation that he had good accounts to an amount greater than his indebtness at that time, and always. If this be so, it seems clear from the evidence that such representation was not true. At all events, there was evidence which strongly tended to show that it was not. Conceding, then, that Hopkins believed it to be true, and had reasonable ground for the belief, would this operate to deprive plaintiffs of the right to rescind the contract of sale and regain the possession of the property by replevin or otherwise? There is no question but that, if such representations had been falsely and fraudulently made, the plaintiff, while the goods were in possession of the vendee, or his assignee for the benefit of his creditors, acting promptly on the discovery of the fraud, and restoring the purchaser as far as possible to his original position, might declare the contract rescinded and by replevin rightfully resume the possession of their property thus fraudulently taken from them. Tacoltt v. Hendersen 31 O. S., 162; Wilmot v. Lyon et al, 49 O. S., 296.

But it also seems to be the clear law of this state, that in an action brought by one person against another to recover damages resulting from false representations made in a contract, the plaintiff is not entitled to recover, even if it is shown that material representations were made by the defendant which were untrue, if they were in good faith believed by him to be true, and the facts in the case justified the belief Taylor v. Leith 260. S., 428; Parmlee v. Adolph, 28 O. S., 10, 20. But so far as we are aware, there has been no direct adjudication by the supreme court of this state on the question whether, where there has been a representation as to a material matter, relied and acted upon by the other party, and which he was

Hamilton Circuit Court.

authorized to rely upon, and which was untrue, but which the person making it believed to be true, and the facts justified the belief, the person to whom the representation was made was authorized to rescind the contract and take the property by replevin proceedings, as he might do in a case of actual fraud.

The case which apparently comes nearer deciding the question than any to which our attention has been called is that of Parmlee v. Adolph supra. In the last clause of the syllabus of that case it is said:

"To constitute representations fraudulent so as to be a ground for the rescission of a contract, they must be both false and fraudulent. If they are made with an honest belief at the time of their truth, they are not fraudulent: but if made recklessly and without any knowledge or information on the subject calculated to induce such belief, and they are untrue, they are fraudulent."

It would seem that there was nothing in the case as disclosed therein that would justify the broad language of the court in the first part of the syllabus quoted. The question in the case on this point seemed to have arisen on the fourth request made to the trial judge, to give a special charge to the effect, that if the defendant "made the representations above set forth, and honestly believed them to be true, then he would not be guilty of fraud or recklessness unless something more appeared." This charge the court refused to give, and the supreme court held that there was no error in this action, on the ground that it was not a competent statement of the law, and would probably have misled the jury. They say in the opinion:

"This request is based upon the idea that where a party simply believes in the truth of a representation made by him, upon which another parts with his property or his rights, he will not be guilty of fraud or gross negligence. This doctrine appears to be sound where the credit of the party recommended is involved, and nothing more. Such recommendations are generally understood to be nothing more than the opinion of those who give them, resting upon common reputation, and the apparent circumstances of the individual recommended, and not upon any examination of his affairs. And it is well known that men who are apparently in good circumstances and credit, turn out to be really insolvent. In such cases a recommendation of that kind should not be presumed fradulent because it happens not to be true. rule is otherwise where the false representation induces the contract between the parties, and enters into it. It is otherwise where the party making the false representations is bound to know the truth of his representations-then mere belief in their truth will not excuse. One is responsible for his belief in a case where a prudent person might know the truth of the facts upon which his supposed belief is founded. ***

"Where a party, from the nature of the transaction and his relation to the parties, and the facts are such that he is chargeable with a knowledge of the truth of the representation he makes, if they are false he cannot escape liability by saying he believed them to be true. It was his duty to know whether they were true, and his belief will not excuse him from liability to the person injured thereby, unless the facts will reasonably justify a prudent man in such belief."

It would seem, too, that the doctrine of this syllabus is somewhat varied by that announced in the case of Mulvey v. King, 39 O. S., 491. The syllabus of that case is this: