
    William M. Corry v. John Gaynor.
    1. The right of a municipal corporation to make assessments to defray the expense of improving a street, and to make the same payable to the ec n ■ tractor doing the work, and the right of the latter to sue thereon in Ilia own name, as authorized by the act of May 3, 1852 (2 S. & O. 149 i), where the assessment was ordered, and thecontract made while that act was in force, are not affected by the repeal of that act by the municipal code (66 Ohio L.) hut the same are within the saving clauses of section 725 of the latter act.
    2. The trustees of special road districts have no power, under section 46 of the act of May 3, 1852, above referred to, as amended by the act of May 12, 1853 (51 Ohio L. 376), to order the improvement of streets, and charge the cost thereof upon the abutting lots, except upon the petition of two-thirds of the resident owners of the lots thus situated; and the finding of the trustees that such petition was presented, is not conclusive of the fact.
    3. Where, in such case, the trustees order the improvement, and let the contract for doing the work under a mistaken belief that the petition is signed by two-thirds of such resident owners, and the contractor, in ignorance of any defect in the proceedings, agrees to take the assessment for bis compensation, and is induced to enter into such contract, and to do the work, by the assurances of one of the lot-owners that if he did the work ho should be paid: Held, in a suit brought by the contractor to collect the assessment, such lot-owner is estopped from showing that the petition was not, in fact, signed by two-thirds of tho resident lot-owners.
    Motion for leave to file a petition in error, to reverse a judgment of the District Court of Hamilton county
    The original action was brought in the Common Pleas of Hamilton cbunty, by the defendant in error, against the plaintiff in error and others, owners of lots fronting on ■Jefferson street, in the special road village of Walnut Hills, Mt. Vernon, and Clintonville. The object of the suit was to enforce, Ly a sale of the lots, the collection of an assessment made thereon, pursuant to an ordinance of the village trustees, to pay the cost of grading and improving the street. The case came up on the separate appeal of the plaintiff in error to the District Court. The trial in that .court resulted in a judgment against the plaintiff in error. He thereupon filed his motion for a new trial, alleging as cause, among others, that the evidence did not sustain the conclusions of fact found and stated by the court. The motion was overruled, and the plaintiff in error excepted, and took a bill of exceptions setting out all the testimony.
    The case, as found and stated by the District Court, «hows the following facts:
    The ordinance directing the improvement, and providing for assessing the cost thereof upon the abutting lots, was .adopted September 25, 1868. The contract for doing the work was awarded to one Campbell. The defendant in ■error, by agreement with Campbell, subsequently became interested with him in the contract, and on the completion of the work, the cost thereof as fixed by the contract, was rassessed upon the abutting lots. The assessments were made payable to Campbell, and he assigned his interest to ■G-aynor, the defendant in error.
    In ordering the improvement, the trustees acted in good faith upon a petition presented September 23, 1868, which they believed to be signed by two-thirds of the resident lot-owners.
    The facts upon this point, as found by the District Court, .are stated as follows : “ The plat presented with said petition, showed the frontage of the several lots abuttiug on the street, and upon one of these lots there resided Mrs. Margaret Shay, a widow, and her children: P. S. Shay, .aged ten years, and Margaret Shay, aged nine years — the property being in the children, by descent from their father, .and the mother being guardian of their persons and estates, ■duly appointed by the Probate Court, and entitled to dower, which had not been assigned. That upon another of these abutting lots, there resided Kunegunda Dusold, a widow, with two of her children, Catherine and Margaret, aged 14 and 17 respectively, the other child of Mrs. Dusold not residing with her; the property being in the children by -descent from the father,' and the mother being guardian ■of their persons and estates, duly appointed by the Probate Court, and entitled to dower, which had not been assigned.. And that upon the said street, within the limits of said improvement, were other lots, upon each of which resided its owner,to the number of seven,making the number of res' ident owners of lots upon said street, excluding the lots of the said Mrs. Shay and her children, and Mrs. Dusold and her children, seven, and no more.
    “ That of these seven resident owners of lots, three did not sign the petition aforesaid to the trustees, and of the remaining four, three signed their names to the petition, and the signature of the fourth, Mrs. Betsey Tierney, by her mark, purports to be affixed, but, whether this was by her authority or not, the court are equally divided upon the facts, she being unable to write. That -by the authority of Mrs. Shay, and in her presence, her name, and that of each of her children, were subscribed by Stokes, one of the trustees, she affixing her mark, being unable to write» That Mrs. Dusold signed her name to the petition in presence of her children, and at the same time the daughter, Catherine, subscribed her name and her sister’s, Margaret, to the petition, in Margaret’s presence, and with her consent, and there were no other signatures to the petition.”
    The work was commenced in November, 1868, and completed in November, 1869. The actual cost of it, the court' found, was about $58,000, and exceeded by about $6,000,. the contract price.
    The defendant below did not reside on this street, but he; was a resident of the road district, and was the owner of more than one-fourth of the total lot frontage on that part of the street improved. The court found, that, prior to-the presentation of the petition of September 23d, “ the project of improving Jefferson street as prayed for, had been under consideration in said board, upon a petition presented August 19, 1868, but rejected for a supposed defect in one of the signatures, and of this project the said Corry had been one of the promoters;” that Campbell’s bid was-accepted on the 4th of November, and that on the next-day, being the 5 th of November, “ Campbell began the.work, putting on a working force of sixty laborers, together with horses and carts, and the work was in progress. That about noon of that day, he was told that the defendant, Corry, would not pay anything, and upon this information, at once went in search of said defendant. That, finding said defendant, about four o’cloek'of that day, he told him what he had heard, and said to him, if there was going to be any trouble he would not go on with the job. That to this the said defendant replied: ‘Go on with the work, the street will be paid for;’ and that, upon this assurance, the said Campbell went on with the work.”
    It further appears that no written contract other than Campbell’s proposal, accepted as aforesaid, had at that time been executed, but soou afterward a contract in writing, particularly describing the work to be done, and fixing the prices and time of performance, was executed by Campbell and the trustees. This contract provided, “that, on the acceptance of the work, said trustees should cause to be levied an assessment upon the front foot of the lots abutting said improvement, for the cost and expense of the work, at said prices, and that the same should be received by the said Campbell in full payment, he assuming the collection of said assessment without cost or charge to said village, and agreeing that neither said village nor said trustees should be liable for any expense or cost of said improvement.”
    It also appears that the trustees representing the corporation, incurred expenses pertaining to this improvement, for engineering, printing, and attorney’s fees, amounting in all to $635, atid that these expenditures were included in the assessment, and the proportion thereof charged h> plaintiffs lots included in the judgment.
    
      George E. Pugh, for the motion:
    The trustees of the special road district are a tribunal of limited jurisdiction, whose proceedings are regulated by statute. Those facts, upon the existence of which their power to act is based, must be shown. Edmiston v. Edmis
      
      ton, 2 Ohio, 251; McCleary v. McLean, 2 Ohio St. 368; Hollingsworth v. Barbour, 4 Pet. 466; Shriver v. Lynn, 2 How. 60; Boswell v. Otis, 9 How. 336; Coger v. Coger, 2 Dana, 270; Caledonian Railway Co. v. Ogilvey, 2 Macq. 239; Harding v. Trustees of New Haven Township, 3 Ohio, 232; Miami Export. Co. v. Brown, 6 Ohio, 535; Adams v. Jeffrics, 12 Ohio, 53; Spice v. Steinruck, 14 Ohio St. 213; D. & W. R. R. Co. v. Marshall, 11 Ohio St. 497; Anderson v. The Commissioners of Hamilton Co., 12 Ohio St. 635; Beatty v. Knowles; 4 Pet. 152; Roberts v. Easton, 19 Ohio St. 78; 4 Wheat. 77; 12 Ohio, 207, 253; Lane, C. J., in 13 Ohio, 550; Welker v. Potter, 18 Ohio St. 85; Reynolds v. Schweinfus, 1 Sup. Ct. Rep. 215; Sessions v. Crunkilton, Treasurer, etc., 20 Ohio St. 349, 359.
    The petition of two-thirds of the resident owners of the lots of land on Jefferson street, Corryville, is a condition precedent to the exercise of any power by the trustees of the special road district. Sec. 46 Municipal Corporation Act, S. & C. 1509; Sharp v. Spier, 4 Hill, 76; Sharp v. Johnson, 4 Hill, 92; Harbeck v. Toledo, 11 Ohio St. 219.
    Oorry is not estopped by his presence and action at the meeting on August 19, 1868, because no action was taken on the faith of what he then said or did. Williams v. Champion, 6 Ohio, 169; McCafferty v. Conover’s Lessee, 7 Ohio St. 99; McKinzie v. Steele, 18 Ohio St. 38; Welland Canal Co. v. Hathaway, 8 Wend. 480; Jones v. Howard, 3 Allen, 223; Whittaker v. Williams, 20 Conn. 98. Nor is he estopped by his remark to Campbell, on November 4,1868. Ilis language is entirely consistent with an intention, as a tax-payer of the district, to pay his proportion of the assessment which would fall on the general treasury. Moreover, Campbell had then already begun the work, and put himself in a situation, by his own act, from which he could not legally recede.
    That he saw the work in progress and made no effort to •stay it by injunction or otherwise can not work an estoppel. For aught that he knew, the petition of September, 1868, might have borne the signature of two-thirds of the resident lot-owners; or the trustees might have been purposing to-pay for the work out of the general fund. See Gholson,. J., in Folz v. Cincinnati, 2 Handy, 261.
    The assessment is illegal because the municipal corporation act of May 3,1852, was repealed by name (without any saving clause), by section 731, municipal code (66 Ohio L. 273), on July 2, 1869. This repeal altered the method of' raising money to pay for the impirovement. Ludlow v. Johnson, 3 Ohio, 553; Ludlow v. Park, 4 Ohio, 5; Ludlow v. Wade, 5 Ohio, 494; Paine v. Skinner, 8 Ohio, 159; Perry v. Clarkson, 16 Ohio, 571; Cass v. Dillon, 2 Ohio St. 607; Bank of Hamilton v. Dudley, 2 Pet. 492; Cov. & Lex. R. R. Co. v. Kenton Co. Court, 12 B. Mon. 147; Balto. & Susquehanna R. R. Co. v. Nesbit, 10 How. 395; McNulty v. Batty, 10 How,. 72; Denn v. Harnden, 1 Paine, 55; Ware v. Hylton, 3 Dallas, 199; Yeaton v. United States, 5 Cranch, 281; United States, v. Mann, 1 Gall. 181; Commonwealth v. Marshall, 11 Pick. 350; Norris v. Crocker, 13 How. 429; Maryland v. B. & O. R. R. Co., 3 How. 534; People v. Livingston, 6 Wend. 531; Butler v. Palmer, 1 Hill (N. Y.), 324; Miller's case, 1 W. Black. 451; Surtees v. Ellison, 9 Barn. & Cress. 750; Maggs v. Hunt,. 4 Bing. 212; Key v. Goodwin, 4 M. & P. 341.
    Section 725, municipal code, claimed by Gaynor as a saving clause, is not pertinent; nor do sections-57 or 730'-save any prior ordinance or special act which is inconsistent with its provisions. Zanesville v. Richards, 5 Ohio St. 589; S. & C. 1526.
    The assessment is also illegal, because it includes charges for advertising, attorney’s fées, and engineering. See 48-Local Laws, 336-339; State v. Taylor, 10 Ohio, 378; Jonas v. Cincinnati, 18 Ohio, 318; Canal Bank v. Mayor, etc., 9 Wend. 244; Matter of William and Anthony Streets, 19 Wend. 682.
    
      Mallon Coffey, contra:
    The petition to the trustees was signed by two-thirds of' the resident owners.
    Mrs. Shay had a freehold, and signed for herself andi also for her children as their guardian. The assessments on the estates of the minors have been paid.
    Mrs. Dusold also had a freehold and had a right to sign as she did, and the signatures of her children were attached in their presence and with their assent. The acts of the minors are voidable — not void; and none of them (though ■some have attained their majority) have attempted to avoid what was done by or for them. A mortgagee in possession is an owner, although the entry be merely formal. 36 N. H. 84; 11 N. H. 298. Much more is a dowress an •owner.
    The minutes of the trustees show that the petition was signed by two-thirds of the resident owners. Moreover, all the petitions could be considered together as one. People v. Rochester, 21 Barb. (N. Y.) 667. Campbell could assign his assessment. Ernst v. Kunkle, 5 Ohio St. 520. Gaynor, being a bona fide assignee, for value, was not bound to look behind the recitals in the ordinance. Manchester's Petition, 8 Foster (N. H.), 299; Pendleton Co. v. Amy, 13 Wall. 297; 21 How. 539; 24 Ib. 287; 2 Black. 722, and cases cited; 14 Ohio St. 270; 7 Ohio St. 327; 12 Ohio St. 636. But see 13 Ohio St. 412.
    Corry is estopped from pleading informality in the preliminaries, or that the petition was not signed by the requisite two-thirds of the resident owners. Upon his assurance made to Campbell, on November 5, 1868, Campbell made the contract and proceeded with the work. That assurance, .and the fact that Corry called and passed frequently, and always approved of the work, clearly work an estoppel in pais against him.
    The trustees, under section 45, S. & C. 1509, had general jurisdiction; the provisions of section 46 are directory only. Hence, compliance with those provisions need not be shown in order to establish jurisdiction. Jefferson street being a • new street, and all the trustees concurring, no petition was necessary.
    The municipal code went into effect July 1, 1869, after ■the greater part of the work had been done. Sections 725 and 729 of that code save our rights and remedies from injury by the repeal of the act of May 3, 1852.
    The law in force when the contract was made must govern the mode of collection, etc. Betts v. Williamsburg, 15 Barb. 262; 22 Cal. 550, 553; People v. Brooklyn, 23 Barb. 180; 21 Cal. 115; 10 Cal. 305.
    This court will not disturb the findings of fact made by the District Court, unless they are “clearly, obviously, and decidedly” against the evidence. Ide v. Churchill, 14 Ohio St. 377; House v. Elliott, 7 Ohio St. 501.
    The charges for advertising, attorneys’ fees, and engineering were properly included in the assessment. The act cited from 48 Local Laws, 337, was repealed by the act of May 3,1852. S. & C. 1493. The act of Eebruary 21,1868 (63 Ohio Laws, 25, sec. 2), makes the cost of publishing the ordinance and notices, and of the preliminary and other surveys, chargeable on the abutting lands. The services of an attorney for the trustees were necessary. See also section 544, municipal code. Okey & Miller, 134, 135.
   Stone, J.

The conclusions of fact, found and stated by the District Court, are, we think, supported by the testimony. Upon the questions now open for examination, it is insisted, on behalf of the plaintiff in error:

I. That the assessment was unauthorized by the stature in force at the time it was made; and that, under that statute, suit to recover the amount due, or to enforce the lien, could only be brought by, and in the name of the municipal corporation.

II. That the petition upon which the trustees ordered the improvement was not signed by two-thirds of the resident lot-owners, and that all the proceedings were therefore unauthorized and void.

III. That District Court erred in holding that the plaintiff in error was estopped from setting up that defense.

IV. That the items for engineering, advertising, and attorneys’ fees were wrongfully included in the assessment, and •carried into the judgment.

1. The act of May 8,1852, to provide for the organization, of cities and incorporated villages, as amended and in force-at the time the proceedings were had for the improvement of the street referred to, authorized the trustees of municicipal corporations of this class to make such improvement, and to assess the cost thereof upon the abutting lots. It provided also that such assessment should be a lien upon the lots thus charged, and that the lien might be enforced by suit, either in the name, of the corporation, or in the-name of any person to whom the corporation directed payment to be made. S. & C. 1493, secs. 30, 45.

It was competent, therefore, under the provisions of this-act, for the trustees to direct the assessment to be paid to the contractor doing the work, and competent for him to-maintain an action in his own name to collect the amount due. The claim thus due him he could assign, and in such case, the suit would properly be brought in the name-of the assignee. Ernst v. Kunkle, 5 Ohio St. 520.

The act of 1852, and the amendments thereto, were repealed by the municipal code, which was passed May 7, and took effect July 2,1869. 66 Ohio L. 145. The assessment now in controversy, having been made after the code-took effect, the objection taken is, that it could only be-made in the manner and subject to the limitations required by that act, and that suit to enforce the lien could be-brought only by the municipal corporation, as provided in section 547.

The objection is not well taken. Whatever would otherwise have been the effect of the repeal of the former statute, the case falls, we think, clearly within the saving-clause of the repealing act. Section 725 provides, “ that no rights or liabilities, either in favor of or against such corporation, existing at the time of taking effect of this act, and no suit or prosecution of any kind, shall be in any manner affected by such change, but the same shall stand or progress as if no such change had been made: Provided, that where a different remedy is given in this act, which can be made applicable to any rights existing at the time-of its passage, the same shall be deemed cumulative to the-remedies before provided, and may be used accordingly.”

The ordinance directing the improvement was adopted,, the contract was made, and the larger part of the work was done before the repealing statute was enacted. The-ordinance provided for charging the entire cost upon the* abutting lots. The contract made it the duty of the corporation to make the assessments, and it bound Campbell' to take them in payment for his work, and to collect them-at his own expense. The rights thus secured to the parties respectively, the section just recited declares shall not, by the change of the law, be in any manner affected.. They shall stand, and the remedies given by the new statute,, applicable to the enforcement of then existing rights, shall not, it is declared, take the place of those afforded by tkestatute repealed, but shall be deemed cumulative merely.

2. The trustees were authorized to order the improvement in question, and to charge the cost thereof upon the-abutting lots; but they were authorized to do this only upon the petition of two-thirds of tbe resideut lot-owners. 2 S. & C. 1509, see. 46. Such petition was therefore a-necessary prerequisite to the lawful exercise of the power. The record of the proceedings in this case, showing a finding by the trustees that such petition was presented, is prima facie evidence of the fact. It is not, however, conclusive. The trustees were public officers, together constituting a board, clothed, it is true, for certain purposes, with large-powers, but nevertheless of special and limited jurisdiction. They were not, by any express provision of the statute, authorized to determine conclusively, by their own action,, the existence of the facts upon which their jurisdiction depended ; and the general rule applicable to bodies of this description, acting in a special matter, out of the course of the < ommon law, is that such authority is not to be implied. Roberts v. Easton, 9 Ohio St. 98; Anderson v. Commissioners of Hamilton Co., 12 Ib. 635.

An exception to this general rule is found in those cases where the lawful exercise of the power depends upon particular facts which are peculiarly within the knowledge of the municipal agents in whom the power is vested, and where, to call in question the existence of such facts in a collateral proceeding, would defeat the object for which the power was conferred. Commissioners of Knox Co. v. Aspinwall, 21 How. 539; Bissell et al. v. Jeffersonville, 24 How. 287; Garrett v. Auditor, 7 Ohio St. 327, and other similar cases cited on behalf of defendant, stand upon this ground, and have no application to the case now under consideration.

The facts upon this subject found by the District Court do not show, and do not authorize us to hold, that the petition upon which the trustees acted was signed by two-thirds of the resident lot-owners. Neither Mrs. Shayn or Mrs. Dusold were the owners of the lots upon which they resided. The right of each was a mere chose in action, a right which could be released, but could not be conveyed ■or incumbered. 1 Wash, on Real Prop. 251. Excluding them, it became unnecessary to determine whether their minor children, to whom the land in each case belonged, could by themselves or their guardians become petitioners within the meaning of the statute; for counting them all, •both as owners and petitioners, the requisite two-thirds is not obtained.

3. It does not necessarily follow that the plaintiff below was not entitled to recover. It was competent for the lot-owners, or any of them, to waive the defect referred to. In civil proceedings, the protection of any statutory, or even constitutional provision, may be waived, and a party may be estopped by his acts from denyiug the legality of proceedings which purport to charge him or his property. Vose v. Cochroft, 44 N. Y. 415; Hellenkamp v. City of Lafayette, 30 Ind. 142; Herman’s Law of Estoppel, sec. 554.

In this case the proceedings of the trustees were, on their face, legal and regular, and the assessment was, prima facie, .a legal charge upon the lots owned by the plaintiff'in error. 'The defect now complained of could only be shown by way of defense. The District Court held that the plaintiff in error was estopped from availing himself of that defense; and looking to the whole record, we are not able to say that in so holding any error was committed. In determining the effect to be given to the assurances of the plaintiff upon which, as that court found, the contractor proceeded, regard must be had to the attending circumstances, and the relations the parties occupied with respect to the subject matter.

The contemplated improvement was peculiarly local in its character. It consisted not so much in improving as in making a street; and the primary object seems to have been to render the abutting lots accessible, and augment their value. The plaintiff was the owner of a large proportion of the lots thus situated, and was correspondingly interested in the undertaking. The project was to make the improvement at the expense of the owners of the lots thus directly and specially benefited; and this project was not only favored by the plaintiff, but he had, from time to time, actively participated in the measures necessary to carry it out. In furtherance of it he endeavored to induce the requisite action by the trustees on the petition of the 19th of August; and, as he testified upon the trial, he met with the board when the project was first moved, aüd bought out one of the resident lot-owners because he declined to sign the petition.

The petition of September 23d was subsequently presented, and the trustees, believing it to be signed by two-thirds of the resident lot-owners, adopted the necessary or-dinance directing the improvement and providing for charging the cost upon the abutting lots. Advertisement was made for proposals for doing the work, and Campbell’s bid was accepted. At this point, and before the contemplated contract had been executed, it was reported to Campbell that plaintiff would not pay. Campbell was not a resident of the district and had no knowledge of the names or number of the resident lot-owners. Upon hearing the report referred to, he went immediately to the plaintiff', told him what he had heard, and said to him that if there was going to be any trouble he would not go on with the job. The-plaintiff’s reply was, “Go on with the work; the street will be paid for.” This declaration was evidently made to induce Campbell to go on with the work, and as the court below found, it had that effect. Campbell was authorized to understand it as an unconditional assurauce that, so far at least, as plaintiff was concerned, payment would bo made when the work was done — made in the way contemplated, and made without trouble. So understood, it necessarily involved a waiver of any defect there might be in the preliminary proceedings. Upon this assurance Campbell did go on. He closed his contract with the trustees; agreed to look to the assessments for his pay, and proceeded with the work. The plaintiff was a resident of the district, and saw the work, from time to time, as it progressed during the succeeding year. lie had knowledge of the fact that Gaynor afterward became interested in the contract, and expressed to him his gratification that he had come to the assistance-of Campbell; and until after the assessment was made and a controversy had arisen as to the quantity and quality of the work, it does not appear that any intimation was given by plaintiff’ that he intended to question the regularity of the preliminary proceedings.

It is urged on behalf of plaintiff in error, that the assessment is an entirety, and if invalid as to one is invalid as to-all; and it is suggested that if the assessment against Corey be enforced upon grounds not applicable to the other lot-owners, the result may be that after paying his assessment, his property will be liable to be taxed to pay the amount assessed against the others. 'Whether such result would follow, or what, in such case, would be the ulterior rights of either party, are questions which need not now be determined. If we concede that such might be the result, it by no means follows that the plaintiff below, in-order to recover as against one lot-owner, must show a state of facts which will be conclusive as to all. The statute authorizes separate actions to be brought against each to recover the amount due, and separate actions against. each to enforce the lien upon the lot assessed. It may well happen, therefore, that some will be compelled to pay, while others will escalpe liability. The assessment is uot -enforced as an entirety. One may be estopped from making a defense which may be available to another. City of Burlington v. Gilbert, 31 Iowa, 356.

The case is not one, it should be noticed, which involves .the taking of private property for public use, and where, by reason of a defect in the proceedings, the benefits intended to be secured are not realized, as was the case in Sessions v. Crunkilton, 20 Ohio St. 349, cited on behalf of the plaintiff. Here, notwithstanding the defective petition, the plaintiff has the full benefit of the improvement.

4. No part of the expenses incurred by the municipal corporation for engineering, advertising, and attorneys’ fees, should have been included in the judgment. It is not necessary to determine whether, under the statutes then in force applicable to this corporation, the trustees were ■authorized to include these items in the amount assessed upon the abutting lots, as a part of the cost of the improvement. It is sufficient to say they were not expenses incurred by the contractor, and do not fall within the principle upon which he and his assignee are held entitled to protection.

The defendant, however, electing to remit the amount of these items from the judgment, and it being shown that the proper remittitur has been duly entered, this motion •must be overruled.  