
    Edward C. Crofton v. The Board of Education of Cincinnati.
    1. Under the act of May 1, 1873, for the reorganization and maintenance-of common schools, the corporate boards of education therein provided for succeed to all rights of action in relation to the common school property and funds, which were theretofore vested, by previous legislation, in other agencies to whose control such property and funds had been confided.
    2. An admission contained in the pleadings of a party to an action, does not estop him from asserting the truth in a subsequent action, if such admission was not material to the matters adjudicated in the former suit.
    Error to the District Court of Hamilton county.
    In the original action, in the Court of Common Pleas,, the board of education, plaintiff, recovered a judgment against the plaintiff in error, then defendant, for $1,100 and interest, as for money overpaid, by mistake, on a contract for the building of a school-house.
    On error, the District Court affirmed the judgment of the Common Pleas.
    Those judgments are now sought to be reversed for alleged errors upon the record, as follows:
    
      1. That the city of Cincinnati, and not the board of education, was the proper party to sue for the alleged cause ■of action.
    2. That the matters constituting the alleged cause of action had been adjudicated between the real parties in interest.
    The bill of exceptions shows the following facts: On the 15th of August, 1871, the city of Cincinnati, to whose corporate authorities, under the act of January 27, 1853 (51 Ohio L. 503), the management of its common ■schools and all school property and funds were confided, contracted with Edward C. Crofton for the erection of ■aschool-house for the sum of $71,200. A portion of the work was sub-let to Jones & Albert, who secured a balance of $1,100, due to them from Crofton on account of materials and labor, by delivering to the city an attested account in .accordance with the provisions of the mechanics’ lien act. During the progress of the work payments were made to ■Crofton on his contract from time to time, so that on the 15th ■of December, 1873, the building having been completed, upon final settlement, the sum of $1,522.70 was paid in full of the contract price, and also for extra work done on the building.
    In making such settlement and payment, however, the amount appropriated by . Jones & Albert, under the mechanics’ lien law, was, by mistake and inadvertence, omitted.
    Subsequently one A. Nulsen-, to whom Jones & Albert, had assigned their claim, in an action thereon, recovered a judgment against the city for the amount thereof. In this action, to which Crofton, Jones & Albert, and others were made parties, the city filed an answer, admitting that there was then due, from the city, on account of the construction -of the school-house, the amount of plaintiff’s claim, and judgment was rendered against the city for the amount, which was afterward paid.
    Afterward, the board of education of Cincinnati, to wit: the defendant in error, a corporation created by the act ■of May 1,1873 (70 Ohio L. 195), entitled “an act for the reorganization and maintenance of common schools,” commenced the original action herein.
    By this last-named act the management of the common-schools within the city of Cincinnati was transferred from the city to the defendant in error; and the 39th section of the act provided that “ All property, real or personal, which has heretofore vested in, and now is held by any board of education, or town or city council, for the use of public or common schools in any district, is hereby vested in the board of education provided for in this act, having, under' this act, jurisdiction and control of the schools of such district.” It was also provided in this act, as it was in the act of 1853, that the treasurer of the city of Cincinnati should be, ex-officio, treasurer of the school funds,of the city district.
    
      Fox § Bird, for plaintiff' in error:
    The city is estopped from asserting that she made a mistake. Ewing v. McNairy § Clafflin, 20 Ohio St. 321; Kearney v. Sascer, 37 Md. 276; Gott v. Garr, 6 G-. & I. 309; 1 Story’s Eq. sec. 146.
    Tne board of education can not sustain this suit. The only parties to the contract for building the school-house are E. C. Orofton and the city of Cincinnati. The latter paid out the money, if any one did. How then can the school board sue for money paid by mistake.
    
      Peck, Gerrard, and Molony, city solicitors, for defendant in error:
    The money in dispute has been paid twice; once rightfully, and once wrongfully. We are seeking to recover that paid wrongfully; our right is clear. The act of May 1, 1873 (70 Ohio Laws, 195), gives the board of education the authority to maintain this suit.
   By the Court.

Upon the above state of facts and statutory law, we hold:

1. The defendant in error succeeded to all the rights of the city, in and to the school property and funds of the district, and was the proper party to sue for and recover the .amount overpaid to Crofton on account of the building of ■the school-house.

2. No estoppel arises upon the admission of an existing indebtedness to Crofton, contained in the answer of the city in the suit of Nulsen. Except for the purpose of ascertaining whether payments became due from the city to -Crofton, after the delivery by Jones & Albert of their attested claim, there was no question at issue, in that suit, as to the state of account between the city and Crofton.

Motion overruled.  