Hamilton Common Pleas Court,

ACCOUNTS.

[Hamilton Common Pleas Court, January 9, 1897.]

Edward Wren v. Alice Winter.

SEPARATE ITEMS OF ACCOUNT, HOW TREATED.

Separate items of account, evidences of different transactions at different times may, unless treated different by the parties, be made the subject of several suits, as if separate causes of action, and a suit pending on some of such items of account is not a bar to recovery on the other items or accounts, the penalty, if any, therefor being limited by section 6527, R. S., to an inhibition against recovery of costs.

HEARD On Demurrer.

BUCHWALTER, J.

The plaintiff began three actions before the justice's court, each of which was appealed to this court.

The petition in 107,202 is founded on various items of an account beginning July 16, 1891, and ending December 18, 1892, (in amount $876, with credits June, 1892, January, June and August, 1893, by cash and a part of the same goods returned, $662.39,) leaving a balance of $213.61.

The petition in 107,200 is founded on a similar account, for goods sold in December 1893, January, February and March, 1894, for $261.94 with credits for some of the same goods returned in December, 1893, of $22.86, leaving a balance of $239.08.

The petition in 107,204, is founded on a like account for merchandise, sold in March, April and May, 1894, for $235.73.

To the petition in 107,200 the defendant files a general denial.

But to the petition in 107,202 the defendant avers that the account therein and the account set up in cause No. 107,200 are one entire continuing account or one cause of action, and that by reason of the suit on the part set out in 107,200 (and the judgment before the justice as appealed by the defendant,) the plaintiff has remitted the remainder claimed on said entire. account.

To the petition in 107,204 the defendant avers likewise as to the. items sued on therein being a part of an entire. and continuous account, composed of said items and also of the items set out in causes 107,200 and 107,202, and by the pending proceedings in each of said causes the plaintiff remitted the balance due on said account.

The plaintiff demurs to the pleas in bar in the two causes.

That one judgment on one entire, indivisible, distinct cause of action is a bar to another action founded on any part of the same, is clear beyond controversy, but the contention arises in these cases as in many others whether all the items in the three accounts severally sued upon are parts of one entire, indivisible, distinct cause of action. Some courts have held that where the items are entered successively in a book as running accounts usually are, and no agreement to the contrary, that the reasonable inference is that the parties treat all the items as involved in one contract, and hence become one entire cause of action. As Guernsey v. Carver, 8 Wend. 492. Others that separate items of account evidence different transactions, and are separate causes of action unless they be thereafter treated differently by the parties. Badger v. Titcomb, 15 Pick. (Mass.), 409. Or if an account of all the items be rendered to the debtor, and he agrees that the whole is correct, or to pay, or acquiesces by silence and delay to dispute it, then the same may be treated as a stated account and as one cause of action. As Simpson v. Elwood. 114 N. C. 528.

The question here at issue whether several suits may be brought upon such an account, has been variously determined in the several states, the majority of re

Wren v. Winter.

spected authority is with the claim of the defendant. Chief among them as strictly in point are Guernsey v. Carver, 8 Wend. 492; Borngesser v. Harrison, 12 Wis. 606; Melroy v. Mining Co., 43 Mich. 231; McErnmer v. Carey, 30 Minn. 458; Buck v. Wilson, 113 Pa. St. 423; Oliver v. Holt, 11 Ala. 574.

To the contra: Badger v. Titcomb, 15 Pick. 409; Inhabitants of Cummington v. Inhabitants of Wareham, 8 Cush., 590.

In the former case the principle of Guernsey v. Carver is discussed and denied. And in Secor v. Sturges, 16 N. Y., 548, it is reviewed and questioned, although in that case the running account was distinguished, from the fact that while the two accounts severally sued upon were between the same parties yet they were for separate transactions in several departments of the plaintiff's business.

And in McIntosh v. Lown, 49 Barb. 557, the reasons given for the rule of judgment in Guernsey v. Carver, and like cases is criticized by Wells J., in that the true question is not whether separate actions on the different items would lead to multiplicity of suits or be oppressive, but whether the former action was for the identical cause or demand as that for which the subsequent one is brought. We do not seem to have any reported adjudication of the question in Ohio, although it may be fairly claimed that the principle on which our rule of judgment is founded in the operation of the statute of limitation as to a running account, viz: "A right of action accrues on each item of an account at the time of its proper date, and therefore the statute of limitation begins to run against it." Courson's Executors, v. Courson, 19 O. S. 454, is the same as in Badger v. Titcomb.

The temptation of plaintiff in the cases at bar seems to have been in the statutory right of attachment before a justice, (which does not exist in the courts of record,) on the ground of non-residence in the county. The suits were all brought the same day before the same justice, and there does not appear any fact to indicate malice or oppression unless it be found in bringing several actions in attachment instead of one suit before a court of record. But the statute sanctions what may seem to be an unreasonable advantage to a plaintiff keeping within the Justice's jurisdiction.

The several accounts on which each action is founded do not on their face as pleaded show any connection with each other, and do not bear evidence that they compose the same entire cause of action, they are of different dates, and it would seem that the parties in dealing as to one set of items did not connect them with other items of othe: dates; nor does it appear that they were ever all consolidated into one account, stated or otherwise.

True the defendant says they all constituted one entire running account, but such averment is a mere conclusion.

It is competent for statutory law to modify the common law rule of Guernsey v. Carver. And has not that been done by section 6527, R. S. * * * "and if either party omit to set up in his bill of particulars any item which lawfully could be made part of the cause of action, set off or counterclaim, the party making such omission shall not recover costs of the adverse party in any subsequent action thereon." * * * ?

The penalty for the omission to consolidate all the items in one cause of action; to wit, of barring the right of recovery, in the sum of $449.37, otherwise due and unpaid, is too severe for the offense of multiplicity of suit to be the administration of justice, and it is fair to presume that the legislature intended to fix a penalty nearer in accord with good conscience, to-wit, that of payment of all costs.

Another reason for holding the pleas in bar not good is that no judgment in force is pleaded on the account set up in cause No. 107, 200. It was vacated by the appeal, and I do not think the plea of a pending suit comes within the rule

6 Dec. 12

Cuyahoga Common Pleas Court.

of Guernsey v. Carver, to have availed of this plea defendant ought not to have appealed in cause 107,200, In taking this view I have not overlooked Bendernagle v. Cocks, 19 Wend., 207; and Oliver v. Holt, 11 Ala., 574; but until final trial and judgment the plaintiff has a right to elect to dismiss all his actions without prejudice to another action with all the items and causes consolidated into one. The demurrers to the answer will be sustained.

H. R. Probasco & Pringle & Johnston, for plaintiff.

Joseph W. O'Hara, H. P. Lloyd and Hagans & Hagans, for defendant.

CORPORATIONS-SUMMONS.

[Cuyahoga Common Pleas Court, March 6, 1897.]

SNOW FORK & Cleveland Coal Co. v. THE HOCKING COAL & R. R. Co. SERVICE OF SUMMONS UPON Officers of a CorPORATION.

Where plaintiff brings an action in Cuyahoga county against a corporation organized and incorporated under section 3866, Revised Statutes, whose charter fixes the location of its principal office in Cleveland, Cuyahoga county, but it in fact never owned nor had an office located in such county; such corporation cannot by its board of directors pass a resolution directing that the principal office of the company should be changed from Cleveland, to the city of Columbus, Franklin county. The above corporation can only amend its charter by a vote of its stockholders according to the requirements of section 3238, Revised Statutes, and an attempt of the directors of said corporation to amend its charter in regard to the location of its principal office was ineffectual for want of power. The defendant corporation, therefore, having its situs in the county of Cuyahoga by virtue of its charter provisions, at the time this action was commenced, said action was rightfully brought in said county and being rightfully brought under the provisions of section 5031, Revised Statutes, then by virtue of the provisions of section 5031, a summons could rightfully be issued to the county of Franklin and be served there upon the officers of defendant company, and therefore a motion to quash the service of the summons will be dismissed.

On motion by defendant to quash service of summons and dismiss cause for want of jurisdiction.

LAMSON, J.

The facts upon which the defendant predicates its motion to quash the service of summons in this case, and to dismiss the cause for want of jurisdiction, are in substance as follows: The defendant is a corporation for the purpose of mining and manufacturing, and in connection therewith, operating a railroad, under the laws of the state of Ohio governing the creation of such an organization. Its charter fixed the location of its principal office in the city of Cleveland, county of Cuyahoga, state of Ohio. The defendant is the owner of certain coal mines situated in the counties of Perry, Hocking and Athens of this state, and in 1886 constructed a railroad about two miles in length, running from its said mines to the line of the Columbus, Hocking Valley & Toledo Railway company. The defendant does not now and never has owned any property in the county of Cuyahoga, and has not had an office in the city of Cleveland in said county for at least twelve years last past, and during that time has done no business of any kind in said county, but has had its principal office located in the county of Franklin, in the city of Columbus, where its principal business is and has during that time been transacted. In April, 1895, the board of directors of the defendant company passed a resolution directing that the principal office of the company should be changed from Cleveland, Cuyahoga county, to the city of Columbus, in Franklin county; and some time before this action was commenced, caused the publication of the passage of said resolution to be made as required by section 3311 of the Revised Statutes of Ohio. No officer or agent of the de

Coal Co. v. Railway Co.

fendant company was found within the county of Cuyahoga, and the summons which was served in this case was issued to the sheriff of Franklin county, state of Ohio, and served upon the defendant by handing a copy thereof to W. A. Miller, president, and W. N. Cott, treasurer and secretary of said company, in said city of Columbus and county of Franklin.

Now the defendant says that this action was not rightfully brought in the county of Cuyahoga, and therefore a summons could not be issued to the sheriff of the county of Franklin to be served upon the officers of the defendant company. The correctness of this claim depends upon the construction to be placed upon section 3866, Revised Statutes, under which the defendant company was incorporated, and section 3311, Revised Statutes, providing for the incorporation of railroad companies, and section 5026, Revised Statutes, providing in what counties certain actions against corporations may be brought.

The plaintiff claims that it has a right to maintain this action against the defendant in this county, because, by the charter, the principal office of the company, that is, the situs of the company, is located in the county of Cuyahoga ; and therefore, under the provisions of section 5026, the action is rightfully brought in said county of Cuyahoga; and being rightfully brought in said county, under the provisions of section 5038, the summons in the action could be issued to the county of Franklin and there served upon the officers of the defendant in that county. Section 5026, so far as it is applicable to this question, reads as follows: "An action against a corporation created under the laws of this state may be brought in the county in which such corporation is situated or had its principal office or place of business." And the plaintiff says this defendant corporation is situated and has its principal office in the county of Cuyahoga in contemplation of law by the terms of its charter, although as a matter of fact it does its business in the city of Columbus, in Franklin county.

In answer to this I do not understand that the defendant company by its counsel disputes the claim that the action may be maintained against a corporation created under the laws of this state in any county which its charter designates as the location of its principal office or place of business, although as a matter of fact no principal office is maintained in that county; and if so, then the service under the section named might be made by a summons sent into a foreign county upon the officers found in that county.

The answer which the defendant company makes to this claim by the plaintiff company is, that neither in fact nor in law was the principal office or situs of the defendant company in Cuyahoga county at the time of the institution of this suit. That it was not in fact in said county, is apparent from the statement of facts in the case. Whether or not its situs in contemplation of law was in Cuyahoga county at the time this action was commenced, depends upon the effect to be given to the admitted action of the board of directors of the defendant company in April, 1895, which was the adoption by said board of a resolution directing that the principal office of the company should be changed from Cleveland, Cuyahoga county, to the city of Columbus, Franklin county, of this state, and a publication made thereafter of this action on the part of said board. The defendant company says that by this action on the part of its board, its charter, so far as it fixed the situs of the company, in Cuyahoga county, was amended so as to fix the situs of said company in Franklin county of this state.

The correctness of this claim made by the defendant depends upon the effect to be given to section 3866 of the Revised Statutes of this state.

Section 3866 of the Revised Statutes of Ohio provides: "That companies organized for the purpose of manufacturing, mining, etc., may, when such purpose is stated in the articles of incorporation, construct a railroad, etc., from its mine, quarry or manufactory, to any other railroad or canal, etc., within or upon the borders of this state; and shall, in respect to such railroad, be subject to and governed by the provisions of chapter 2."

Cuyahoga Common Pleas Court.

Chapter 2 provides for the construction, operation, etc., of railroad corporations; and section 3311, under the general head of "Railroad companies," and under the subdivision head of "Regulations," provides as follows: "Each company shall, as soon as convenient after its organization, establish a principal or general office at some point on the line of its road, or on the line of any road in this state with which it connects or has running arrangements, and may change the same at pleasure; and shall give public notice of such establishment or change, in some newspaper published on its line within this state; and the office of the president, secretary and treasurer of the company shall be kept at such principal or general office, or at some other point on the line of the road of the company within this state, and a record kept there of all the proceedings of the company, to be open at reasonable hours to the inspection of the stockholders of the company."

Now the defendant says that, having constructed a railroad of two miles in length under its charter as it was authorized to do by section 3866 of the Revised Statutes, it then came under the provisions of section 3311 of the Revised Statutes as to the establishment and change of its general office; and therefore its action in April, 1895, by its board of directors was effectual in the amending of the charter of the company so as to change its situs from the county of Cuyahoga to the county of Franklin in the state of Ohio; and this company was thus brought under the operations of section 3311 by force of the following provision in section 3866, to-wit: "And shall in all respects to such railroad be subject to and governed by the provisions of chapter 2."

Section 3866 is one of the sections found in chapter 17, Revised Statutes, under the title "Powers of certain corporations." It relates to corporations created under the general laws for the incorporation of companies found under title 2, in chapter 1 of said statutes; and therefore in effect it becomes a part of those general provisions, the same as if incorporated in the said title and chapter.

The defendant company was incorporated under the general provisions of said title 2, chapter 1, and by reason thereof, is brought under the provision of said section 3866. It follows, therefore, that said section 3866 must be construed in connection with the provisions of said title 2, chapter 1, in which it thus belongs, as well as in connection with the provisions of chapter 2 named in said. section. And in determining the force and effect of the provisions of said section 3866 upon the defendant company, it is necessary to take into consideration all the provisions of said title 2, chapter 1, bearing upon the subject to which said section applies. These provisions are found in sections 3236 and 3238 of said title and chapter.

Section 3236 provides what the articles of incorporation shall contain; and these requisites are: First, the name of the corporation. Second, the place where it is to be located or where its principal business is to be transacted. Third, the purpose for which it was formed. Fourth, the amount of its capital stock, if it is an incorporation for profit, as the defendant company is. Thus we have it provided that one of the essentials of the charter is the location or situs of the company; or, what is equivalent to that, the place where its principal business is to be transacted; and the defendant company, in preparing and submitting its charter to the secretary of state under this act, complied with the provisions of this act in this respect, and designated the county of Cuyahoga as the place where it was to be situated.

Said section 3238a, provides for the amendment of the charter of an incorporation; and which, in so far as is pertinent to this inquiry, is as follows: "Any corporations incorporated under the general corporation laws of the state may, at any meeting of its members or stockholders, of which and of the business to come before said meeting thirty days, not icehas been given, by a majority of the directors or trustees of said corporation, in a newspaper published and in general circulation in the county where the principal place of business of the corporation is located, by the vote of the owners of at least three-fifths of its capi