
    Elder et al. v. Shoffstall et al.
    
      Trial—Three-fourths jury law—Amended Section 11455, General Code—Applies to actions pending May 14, 1913—Regardless of when cause of action arose—Measure of damages—False and fraudulent representations.
    
    1. Section 11455, General Code, as amended February 6, 1913 (effective May 14, 1913), does not apply to causes pending in the common pleas courts of this state on the 13th day of May, 1913.
    
      2. This amended section relates to the remedy only arid applies to all actions commenced in the common pleas courts of this state on and after the 14th day of May, 1913, regardléss of the time when the cause of action arose.
    3. In an action to recover damages for false and fraudulent representation as to the value of personal property, made by the seller in order to induce the purchaser to buy, the measure of damages is the difference between the value of the property as it was represented to be and its actual value at the time of • the sale.
    (No. 14458
    Decided June 16, 1914.)
    Errot to the Court of Appeals of Sandusky county.
    
      On the 21st day of March, 1913, Frank S. Shoff - stall and Carrie A. Shoff stall filed their petition in the common pleas court of Sandusky county against R. A. Elder & Co., a partnership composed of R. A. Elder and Clara J. Elder, alleging fraudulent representation in the sale of a stock of dry goods, millinery and fixtures located in No. 104 Kilbourne street, Bellevue, Ohio, among other things averring that they purchased said stock of merchandise on the 24th day of August, 1912, for the sum of $4,500, which purchase price was paid by transferring to the defendants a house and lot in the city of Toledo valued at $4,500, subject to a mortgage of $2,000, which the defendants assumed and agreed to pay, and that plaintiffs as a part of the purchase price of said merchandise executed and delivered to the defendants a chattel, mortgage upon said stock of goods for the sum of $2,000; that said defendants represented that the merchandise sold was of good quality and would invoice $6,500, and that defendants had established a trade at the location above named and that their sales amounted to $12,000 per year, and that said purchase was made relying upon these representations, which were false in this, that said stock of merchandise did not invoice to exceed $1,516, that defendants had not established a trade to the amount of $12,000 per year and that defendants knew said representations were false at the time of making the same. Plaintiffs aver that by reason of the fraudulent misrepresentations they were damaged in the sum of $3,000 and asked, that said defendants be enjoined from transferring the notes given for the balance of the purchase price and secured by the chattel mortgage, and asked judgment against the defendants in the sum of $3,000.
    Defendants for answer admit the sale and pur-’ chase of said merchandise, the transfer to them of the house in Toledo, but aver that it was agreed' that the value of said house was $4,000, and that it was subject to the mortgage of $2,000 described in plaintiff's petition, and admit that the chattel mortgage was executed to them upon the stock and fixtures to secure notes aggregating $2,000 as the balance of the purchase price of said real estate; that on the 31st day of December, 1912, defendants paid the mortgage lien upon the real estate in Toledo transferred to them by plaintiffs.
    Defendants further aver that plaintiffs, in violation of the terms of the chattel mortgage, sold some of said goods and chattels without the consent of the defendants and shipped some of the same out of the state of Ohio without the consent of the defendants, and that the defendants thereupon elected to treat said chattel mortgage as absolute, and that plaintiffs on the 31st day of December, 1912, executed and delivered to defendants, a second chattel mortgage securing a series of eleven promissory notes aggregating $2,000 and executed and delivered to defendants another promissory note for $42 for accrued interest on ’ the original indebtedness of $2,000 from August 24, 1912, which said $42 note was not secured by chattel mortgage, and that thereupon the original notes and chattel mortgage were duly cancelled and delivered by defendants to the plaintiffs.
    
      Defendants further say that at the time of the sale and delivery of said merchandise to plaintiffs they had full opportunity to inspect same and did inspect same; that said exchange was made without warranty and without representation as to the value of said goods, or as to any other mattei;, but on prior inspection thereof. And for cross-petition defendants ask to recover upon the notes executed and delivered to them by plaintiffs on the 31st day of December, 1912, the sum of $2,042, with interest thereon from December 31, 1912, averring that the conditions of said chattel mortgage had been broken and that by reason of the breach of said conditions all of said notes have become due. Defendants also ask that a receiver be appointed and that the goods and chattels described in the chattel mortgage be sold and the proceeds applied to the payment of said judgment.
    . For reply to this answer and cross:petition the plaintiffs deny that it was agreed that the value of the Toledo property was $4,000. Plaintiffs also admit the execution and delivery of the notes and chattel mortgage, but deny all other averments of the answer and cross-petition, except that some of the goods were shipped to Indiana to be sold upon commission, but that the same was done because there was no sale for such goods in Bellevue and vicinity on account of the age and condition of the goods. They aver that the defendants waived any objection to said shipment.
    The answer and cross-petition of the defendants was filed on the 18th day of April, 1913. The plaintiffs’ reply was filed on the 5th day of May, 1913, and on May 6, 1913, a jury was impaneled and the trial proceeded and was continued from day to day until May 20, 1913, upon which day the court charged the jury, and on May 21, 1913, the jury returned a verdict finding on the issues joined for the defendants in the sum of $2,069.23. This verdict is signed by ten of the jurors, to which verdict the plaintiffs then and there excepted because said verdict was not concurred in by all the jurors, which objection was overruled and plaintiffs duly excepted. A motion for a new trial was overruled on the 5th day of July, 1913, and judgment entered on the verdict.
    ■ The court charged the jury that when nine or more of its members agreed upon a verdict those agreeing to the verdict should sign the same and return it into open court.
    The plaintiffs below filed a petition in error in the court of appeals of Sandusky county, and that c'ourt reversed the judgment of the common, pleas court for the reason that said court erred in instructing the jury that the verdict might be rendered when the same was concurred in by nine members of said jury, and that the common pleas court erred in receiving a verdict that was signed by only ten members thereof. Other errors were presented by the petition in error, but it does not appear from the entry .of judgment in the court of appeals .that these other errors were considered by that court.' The plaintiffs in error now prosecute this action in this court to reverse the judgment of the court of appeals.
    
      
      Messrs. Parkhurst & Vickery and Messrs. Garver & Garver, for plaintiffs in error.
    
      Mr. Jesse Vickery, for defendants in error.
   Donahue, J.

Section 5 of Article I of the Constitution of Ohio as amended September 3, 1912, provides that “The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.” This amendment went into effect on the 1st day of January, 1913. It was not self-executing and required legislative action before it could become effective, and until the same became effective by legislative action litigants would be entitled' to the unanimous verdict of twelve jurors.

On the 6th day of February, 1913, the general assembly of this state amended Section 1*1455, General Code, by providing that “In all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number. The verdict shall be in writing and signed by each of such jurors concurring therein, * * * .” This act was approved by the governor of the state on the 12th day of February, 1913, and was filed in the office of the secretary of state February 13,1913. Under the provisions of Section lc of Article II of the Constitution, as amended in 1912, this law did not become effective until ninety days after it had 'been filed in the office of the secretary of state. The jury in this case was impaneled on the 6th day of May and its verdict returned into court on the 21st day of May, so that pending the trial of this cause amended Section 11455, General Code, became the law of this state.

The general assembly of the state in adopting this amendment acted within the scope of its constitutional authority, and, therefore, if this case comes within the operation of that amendment, the charge of the common pleas court was right. This act of the general assembly is remedial in its nature and must be considered and construed in connection with Section 26 of the General Code, for so long as that section remains the law of Ohio all subsequent legislation must be construed in accordance therewith. That section reads as follows: “Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

This act amending Section 11455, General Code, did not expressly provide that it should affect pending actions. It is clear, therefore, that it can have no application to this case, for this was not only a pending action, but the jury had been impaneled and the trial had proceeded for at least eight days before this law went into effect.

Our attention is called to the case of Warner v. Baltimore & Ohio Rd. Co., 31 Ohio St. 265, in which case the first proposition of the syllabus is as follows: “Where a jury of twelve men was selected and summoned for the trial of a cause before a justice of the peace, under the act of March 30, 1875, and before the day set for trial this act was repealed by another, which provided for a jury of six men for such trials; Held, That the act in force at the time of the trial governed, and that the justice erred in submitting the cause to a jury of twelve men.” That was a pending case. The court held that the law reducing a jury in the justice’s court from twelve to six was constitutional because the constitutional provision in reference to the right of trial by jury does not apply to trials before justices of the peace, for the reason that on appeal to the common .pleas court litigants will be entitled to the full constitutional jury. This act in question is clearly constitutional, and so far the cases are parallel except that in this case the jury was actually impaneled before the law became effective, but we do not distinguish these cases on that ground, although we think that might be sufficient for the purposes of this case, but rather do we distinguish these cases upon grounds that are applicable to all cases pending at the time this law became effective.

At the time the case of Warner v. Baltimore & Ohio Rd. Co., supra, was decided, the act of February 19, 1866 (63 O. L., 22), was then the law of Ohio. That act read as follows: “That whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal; nor causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.” This court held in that case that this section, as it then read, had no application to the repeal or amendment of statutes relating to the remedy; that remedies always had been subject to legislative control, except to the extent which the constitution has limited such control; that statutes relating to proceedings before justices of the peace were remedial in their nature ■and might be given or taken away at the pleasure of the legislature.

Since that decision, however, this section has been amended by adding thereto the following; “and when the repeal or amendment relates to the •remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed.” • This ■amendment clearly evidences the legislative intent to distinguish between statutes relating to the remedy arid statutes that do not relate to the remedy. Construed in the light of the decision of this court in the case of Warner v. B. & O. Rd. Co., supra, this statute now provides that the amendment or repeal of statutes that do not relate to the remedy shall not affect pending actions, prosecutions, or proceedings, civil or criminal, nor causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless it is otherwise expressly provided in the amending or repealing act. But, with reference to amendments or repeals of statutes that relate to the remedy, the provision is that such amendment or repeal shall not affect ‘pending ' actions, prosecutions, or proceedings, unless so expressed. In view of the plain and positive provisions of the law, it follows that causes of action, prosecutions or proceedings existing at the time of the amendment or repeal of statutes relating to the remedy are not exempt from the operation of such amendment or repeal.

Section 11455, General Code, as amended February 6, 1913, does not expressly provide that pending actions, prosecutions, or proceedings shall be affected thereby. Construing this section then in connection with Section 26, General Code, it follows that this amendment does not apply to cases pending at the time it went into effect, and, therefore, the trial court erred in instructing the jury that a verdict might be rendered when concurred in by nine members, and erred in receiving a verdict signed by ten members of the jury.

Counsel call our attention to the fact that the several causes of action pleaded in the answer and cross-petition of plaintiffs in error arose in March and April, 1913, and after the amendment to the constitution went into effect. Section 11455, as amended, ho-wever, relates to the remedy only, and therefore does apply to all actions commenced in the common pleas courts of this state after the 14th day of May, 1913, regardless of the time when the cause of action arose.

The judgment of the circuit court must also be affirmed for another reason, for k is not important what reason the court gave for reversing the judgment of the common pleas court if in fact the reversal of the judgment was right for any reason. The journal entry in the court of appeals does not refer to any other errors presented by the petition in error in that court except the question of the application of Section 11455, General Code, to this case, but in the opinion of that court, reported in 1 Ohio App., page 390, in the third paragraph of the syllabus it is held that the charge of the court was erroneous in reference to the measure of damages. The trial court charged the jury that the measure of damages was the difference in the value of the house of plaintiff and the value of the stock of goods of the defendant on the date of the exchange. The true measure of damages is the difference between the property as it was represented to be and its actual value at the time of the purchase, and for this reason, as well as the reason already given, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Wanamaker, Newman and Wilkin, TJ., concur.  