
    William G. Wilson v. Pollock Wilson and Peter Hayden.
    I. In a suit brought to recover of the defendant, on his liability as husband, the principal and interest due on a promissory note made by his wife before marriage, the cause of action is substantially different from that of an action brought on a special contract whereby the defendant promised to pay a part of the sum appearing to be due on such note, provided the plaintiffs would perform certain conditions precedent, and would accept such partial payment in full satisfaction and discharge of the note.
    
      2. Where a suit was brought before a justice of the peace, solely of the character first above stated, and the plaintiffs, failing to recover judgment by reason of a divorce decreed between defendant and his said wife before trial, thereupon appealed the case to the court of common pleas, where they filed their petition on a special contract such as is stated above — the appellate court acquired no jurisdiction, by such appeal, to try the new cause of action. The defendant might well have moved to strike the petition from the files, or have demurred to it, on the ground that the court had no appellate jurisdiction of the new subject of the action.
    3. But the defendant interposing no such objections, and having answered to the merits, the court thereby acquired original jurisdiction of the case, which in other respects came within the sphere of such original jurisdiction. And the fact that the cause came into the court nominally by appeal, did not deprive the defendant of his right to a second trial.
    4. The defendant having repudiated the special contract by wholly refusing performance on his part, the plaintiffs had a right to regard it as rescinded, and bring their action, as they did, upon the note for which it had been substituted.
    5. But by doing so, they conclusively disaffirmed and abandoned the special contract, and could not thereafter maintain an action thereon.
    Error, to the District Court of Cuyahoga county.
    Defendants in error were plaintiffs in the original action, which they brought against plaintiff’ in error, before a justice of the peace of Cuyahoga county, on the following bill of particulars:
    “ William G-. Wilson to Wilson & ITayden, Dr. To amount of note made by Eliza Henderson, dated November 3,1860, due — 6 months; said Henderson being thereafter married to and now wife of
    Win- Gi. Wilson..........................................$240 19 Interest to date.....,......................................... 59 80
    $299 99
    ' Cleveland, May 10, 1869.
    Pollock Wilson and Peter Hayden, Plaintiffs.”
    
    Defendant below obtained a continuance of the case from May 13 till June 11, 1869, when the case coming on for trial, he proved that a divorce had recently been duly decreed between himself and the said Eliza Henderson, maker of the note sued upon; and the justice adjudged that the plaintiffs had no cause of action, and rendered judgment in favor of defendant below for his costs.
    Plaintiffs below appealed the case to the court of common pleas, where they filed the following petition:
    This cause comes into court by appeal from a justice’s court; and these plaintiffs, for their cause of action, say that, on the 3d day of November,-1860, one Ann Eliza' Henderson; being then an unmarried woman, was indebted to these plaintiffs in the sum of two hundred'and forty dollars and nineteen cents ($240.19), for goods sold and delivered to her before the date last aforesaid; and then and there she made and delivered to these plaintiff's, who were partners in trade, doing business under the firm name of "Wilson & Hayden, her promissory note in the sum of two hundred and forty dollars and nineteen cents ($240.19), and thereby promised to pay to plaintiffs the sum last named, in six months from the date first aforesaid; but she has hitherto wholly failed to pay the said note. That, on or about the-day of--, a. d. 1862, and while said note was wholly unpaid, the said Ann Eliza Henderson intermarried with said defendant and remained his wife till the-of June, 1869, when, by the decree of the Court of Common Pleas of Logan county, she was, on her petition, divorced from said defendant.
    That, on the 1st day of May, a. d. 1869, the said Ann Eliza, although then the wife of said defendant, was not living within the county of Cuyahoga, where defendant was living, but for some time prior to the date last aforesaid had separated from defendant and was living in said Logan county, nor was she on the 1st of May, 1869, nor has she been at any time hitherto to the knowledge of these plaintiffs, within the jurisdiction of the justice of the peace before whom this action was originally commenced.
    And these plaintiffs say that at the day last named they caused their claim arising upon said note to be presented to said defendant, and made known to him the date and amount of said note, and requested him, as the husband of said Ann Eliza, to pay the same. And then and there the said defendant, professing to doubt the genuineness of the signature of said Ann Eliza Henderson .to said note, agreed, and promised to and with these plaintiffs, at the date last aforesaid, and while he was still the husband of said Ann Eliza, that if the said note should prove to be the genuine note of said Ann Eliza, and these plaintiffs would furnish such proof and would consent to abate the interest due on it and accept the face of the note in full of it, that he, the said defendant, would pay the face of said note promptly and without litigation; which promise and agreement of said defendant these plaintiffs accepted and relied upon, and forbore to sue the said defendant upon said note, and proceeded, in pursuance of defendant’s said agreement with these plaintiffs, to procure and did furnish the necessary proof to establish the genuineness of the said note.
    And these plaintiffs say, that if they had disregarded the agreement so made with said defendant at the date last aforesaid, they might then have reduced their said claim to judgment against said defendant, as there was sufficient time .to sue and recover thereon, prior to the divorce of said defendant from said -Ann Eliza, but that after these plaintiffs had proceeded to procure and had furnished ample proofs of the genuineness of said note, the said defendant repudiated and disregarded his said agreement to pay the face of the said note, although these plaintiff's offered to fulfill the agreement on their part and cancel said note on receipt of the amount named on the face thereof. And these plaintiffs charge and aver that, with the fraudulent design to defer and postpone the bringing of a suit by plaintiffs against defendant upon said note till such time as his divorce should be accomplished he made the agreement aforesaid, and at the return day of summons put off the hearing till after the decree of divorce, granted on the -day of June, 1869; and when these plaintiffs learned that defendant refused to fulfill his said agreement they brought their suit, as well they might, and say that defendant is indebted to them in the premises in the sum of two hundred and forty dollars and nineteen cents ($240.19), with interest from May 1, 1869, for which they ask judgment.
    To this petition defendant below demurred on the ground that it did not state facts sufficient to constitute a cause of action against him. This demurrer having been overruled, he answered as follows:
    
      First. That for want of information, he denies that the said Ann Eliza Henderson, in said petition mentioned, was ever indebted to said plaintiffs in any sum whatever, and that she ever gave said plaintiffs a promissory note, or promised to pay them any sum whatever. Said defendant admits that on or about the 25th day of — ■-, a. d. 1864, one Ann Eliza Henderson intermarried with said defendant, and remained his wife until divorced, as stated in said petition, and that said Ann Eliza, on the 1st day of May,, a. p. 1869, was not living within the county of Cuyahoga,, but was living in Logan county, and that she has not been at any time since, to the knowledge of said plaintiffs, within the jurisdiction of the justieekf the peace before whom this-action was commenced. But said defendant says that all the other allegations contained in said petition are false and. untrue, and be therefore denies each and all of them.
    A second defence was added arising under the statute of frauds, but the questions arising thereon it has not' been; found necessary to consider.
    The ease was tried by a jury, who returned a verdict' for the plaintiffs, and assessed their damages at $269.02. Defendant moved for a new trial, for the following reasons,, to-wit:
    
      First. That the verdict given in this case is against and contrary to the law of the case.
    
      Second. That the verdict given in this case is against and. contrary to the weight of evidence, and is not sustained by sufficient evidence.
    
      Third. That the court, in the trial of this cause, erred in admitting evidence offered by the plaintiffs.
    
      Fourth. That the court, in the trial of this 'cause, erred. in charging the jury, and in refusing to charge the jury as the said defendant requested.
    This motion was overruled, and defendant below ex■cepted.
    He thereupon demanded a second trial of the cause, which the court refused to allow, and he excepted. Judgment was thereupon entered on the verdict.
    Upon the trial the defendant below offered in evidence, among other things, the bill of particulars, on which the action of the plaintiffs below before the justice was founded, ,and claimed that by bringing that action on his liability as husband to pay the whole principal and interest due on the note, plaintiffs had disaffirmed the special contract, and •could not, therefore, now maintain an action on it. But the court instructed the jury on that subject as follows :
    “ The contract being established, and the existence of the ■debt being established, and it being established that the plaintiffs had done everything which the contract required them to do in order to subject the defendant to a liability upon that contract, they do make a case which entitles them to recover, unless there has something transpired since that time, which ought to prevent a recovery.
    “ Now, it is claimed on the part of the counsel for defendant in this case, that something has transpired since that time, which ought to prevent a recovery. It is claimed here, this action was originally instituted, not to recover upon this contract, but to recover upon the original indebtedness — the action being instituted before a magistrate with a bill of particulars setting up as a claim of the plaintiff's the note of this woman.
    “Now, I say to you, gentlemen, if that be the fact, that this action was originally commenced upon a note, and thei’e was no statement in the bill of particulars of this ■special contract, that fact will not prevent a recovery, provided you find in the testimony in the case the existence of all the facts which otherwise will permit a recovery by ¡the plaintiffs in the case.”
    To this instruction exception was taken.
    
      The defendant below filed his petition in error in the district court to reverse this judgment, for error in the charge of the court, in overruling his motion for a new trial, in refusing his demand for a second trial, and for sundry other errors. The district court affirmed the judgment of the common pleas. This judgment of affirmance' is now sought to be reversed.
    
      Bolton & Williamson, for plaintiff’ in error.
    
      J. K Ingersoll, for defendant in error.
   Scott, J.

The original action was brought by defendants in error against plaintiff in error before a justice of the peace. Their bill of particulars, filed with the justice, and upon which they procured a summons to issue for the appearance of the defendant below, shows very •clearly that the action was brought upon a promissory note, made and delivered to them by one Eliza Henderson, a feme sole, who, they allege, was thereafter married to, and then was the wife of, the defendant below. They say the note was dated November 3, 1860, due in six mouths, and. they claim to recover of defendant the amount or principal of the note, $240.19, and interest till date, $59.80, making, in the aggregate, $299.99. The action was evidently brought to enforce the common-law liability of the •defendant below, as husband, for the debt of his wife, contracted before marriage. Hpon the trial the defendant below proved a divorce, then recently decreed by a court of competent jurisdiction, between himself and said Eliza, .at her suit; and judgment was thereupon rendered by the justice in his favor.

Erom this judgment the plaintiffs below appealed to the •court of common pleas, where they filed a petition upon ■quite a different cause of action. By this petition they sought to recover damages for the breach of a special parol contract made with them by defendant below, on May 1, 1869, whereby, as .they allege, he agreed to pay them a sum. less than the amount due on the note, provided they would perform certain conditions precedent, and would accept such smaller sum in full satisfaction of the claim evidenced by the note. u‘

They allege that they accepted and agreed to these terms, and performed the conditions precedent, and that the defendant thereupon refused, on demand, to pay the-sum agreed upon, and repudiated said contract,- and they thereupon ask judgment for such smaller sum, with interest thereon from the date of such contract.

As the breach of this, special contract constituted' the sole cause of'action in the petition of plaintiffs below, and as this contract had been wholly ignored by them in their action-before the justice, it seems- clear that the court of common pleas could have no appellate jurisdiction over a cause of action which had never been submitted to or passed upon by the justice. The variance was such that the defendant below might well have moved the court to strike the-petition from the files. But no such motion seems to have been made; and the case was one in which the court, might, on the voluntary appearance, and with the consent of the defendant, exercise original jurisdiction. We think the defendant voluntarily submitted himself and the new cause of action to the jurisdiction of the court, by demurring only on the ground that the petition did not statefacte sufficient to constitute a cause of action. It would have been otherwise had he demurred specially on the-ground that the court had bo jurisdiction of the subject of the action. But by demurring generally, and subsequently answering to the merits, he waived all right to object to the jurisdiction which he had himself invoked. Still the jurisdiction exercised was original, not appellate, and the character of the action and the issues made by the pleadings were such as gave either party a right to demaud a trial by jury. It was therefore the right of the defendant, when upon the trial a verdict and judgment were rendered against him, to demand a second trial; and we are inclined to think the court of common pleas erred in •denying him this right. Wood v. O' Ferral et al., 19 Ohio St. 427.

But the record presents another and perhaps still more important question. The defendant below, by his answer, among other things, denied the existence of the special ■contract on which the action was brought. To maintain this issue on his part, he offered in evidence, upon the trial, the bill of particulars of plaintiffs below, on which their ■action before the justice was founded; and his counsel claimed that the plaintiffs having brought an action against him on his wife’s note, as shown by said bill of particulars, after the making of the supposed contract, and in disaffirm.ance thereof, they could no longer maintain an action on it. But the court instructed the jury otherwise, and told them in substance that, if the plaintiff’s action before the justice was on the note alone, and without any reference to the •special contract on which they now sue, this fact would not prevent a recovery.

In so instructing the jury we think the court of common pleas erred. The plaintiffs below, in their petition, say that the defendant repudiated the special contract, and that they, upon learning that fact, brought their action before the justice, as they well might. It is quite true that when the defendant below refused to abide by and perform the alleged contract, the plaintiffs below had a right to regard it as rescinded. They had a clear right of election. They might either abide by the special contract and bring their action to recover for its breach, or they might acquiesce in the repudiation of it by the other party and bring their action on the note and recover, if they could, the full amount of principal and interest due thereon. They chose the latter alternative, and brought suit upon the note.

And by that election freely made, they must be conclusively bound. Having chosen to abandon the special contract, and try the chances of recovering a larger sum upon the liability of the defendant as the husband of their original debtor, they can not, when this cause of action fails, fall back on the special contract to which they have put an end by a conclusive act of disaffirmance. Plaintiffs below had alternative remedies, but not remedies to be enforced alternately. The insuperable difficulty in the case of plaintiffs below is not that their cause of action before the justice was a different one from that stated in their petition, hpt that suit upon the former necessarily implies a rescission and abandonment of the latter.

It follows, of course, that the court of common pleas also erred in overruling the motion of plaintiff' in error, to set aside the verdict of the jury, and grant him a new trial, and that the district court erred in affirming the-judgment of the court of common pleas. The judgments of both courts must be reversed, and the cause be remanded to the court of common pleas..

Judgment accordingly.  