
    Robert E. Neil v. The Board of Trustees of the Ohio Agricultural and Mechanical College, and Jonas E. Rudisill.
    1. A guarantor, in writing, of the payment of a debt when due, will not be permitted to show by parol, that at the time the guaranty was delivered, it was understood between him and the guarantee, that he should be liable only as a guarantor of the collection of the debt.
    2. A demurrer to a petition on the ground that there is a defect of parties defendant, will lie, only where it appears from the face of the petition that necessary parties defendant are wanting.
    3. The act to establish and maintain an Agricultural and Mechanical College in Ohio (G7 Ohio L. 20) does not constitute the hoard of trustees therein provided for, a corporation.
    4. R. subscribed $100, and promised to pay the same to the Ohio Agricultural and Mechanical College, in consideration that said College should be located at a specified place. N., in writing, at the same time and place, and upon the same consideration, guaranteed the payment of the sum so subscribed. Said subscription, with the guaranty thereto annexed, was delivered to, and accepted by the Trustees of the College, upon the consideration aforesaid, as one instrument: Held, that the subscriber and guarantor may be jointly sued on said instrument.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Eranklin county.
    The original action was brought in the court of common pleas by the defendant, the Board of Trustees of the Ohio Agricultural and Mechanical College, against the defendant, Jonas E. Rudisill, and the plaintiff, Robert E. Neil. The petition was as follows : “ The plaintiff says that on or before January 19, 1871, said defendant, Jonas E. Rudisill (among others) in consideration of securing the location of the Ohio Agricultural and Mechanical College at its present site, in Eranklin county in north city of Columbus, subscribed and donated individually thereto the sum of one hundred dollars ($100), payable in three equal annual installments from date-—said subscription being in writing, in the words and figures following, to-wit:
    “ The undersigned agree, among themselves, to contribute the amount set opposite their names herein severally, in annual installments from date, or 38} per cent., provided and upon condition, that the Ohio State Agricultural College be located upou the farm of Henry Neil, and adjoining lands, as now proposed, just north of the toll-gate on the Worthington l’oad ; said money to be paid to the proper authorities of said institution. .
    Jonas E. Rudisill, $100.
    Said instrument of writing, with the signature and name of said defendant, Rudisill, among others, and without date, to the paper above set forth, was on the 19th day of January, 1871, with the guarantee in writing of the defendant, Robert E. Neil, annexed thereto, and made a part of the same instrument in the words following, to-wit:
    “ Whereas several subscriptions have been made by citizens of Eranklin county, and others, to pay several sums of money for the purpose of securing the location of the Ohio Agricultural and Mechanical College in the county, the names of which persons, and the sums by them respectively subscribed, are found in a schedule hereto attached, marked ‘A,’ and made part hereof, and it being the true intent and meaning of said subscription that the same should be paid to the treasurer of said College for the benefit thereof.
    “Now, therefore, in consideration of the location of said college in said county, we, the undersigned, hereby guarantee that said several sums of money shall be paid by said several persons to said treasurer at the times nominated in said several subscriptions.
    R. E. Neil.”
    
      “ And tbe plaintiff avers, that for the purpose, and in consideration of securing tbe location of said college as aforesaid, said defendant, Neil, at the same time, and at the same place, and for the same consideration, when the subscription paper aforesaid, which is'the same and identical with the schedule attached, marked ‘A,’ and made apart-of his guarantee, was delivered to the plaintiff, agreed to’ guarantee, and did guarantee, the payment as aforesaid, of the subscriptions made in consideration of the matters aforesaid, and among them the subscription of said Rudisill. Said plaintiff avers that they (it) accepted said subscription and guarantee, at the same time and place, and in consideration, in part, of the subscription and guarantee1 aforesaid, did on the-day of-, 1871, locate and establish said college on the site aforesaid, and afterward erected thereon the necessary buildings, and put into operation said college, which is still in full operation, yet neither they nor either of them have paid said subscription and donation or any part thereof, though due demand, before’ bringing this suit, was made therefor.” . Prayer for judgment. Neil demurred to the petition, assigning the following grounds:
    1. That plaintiff has not legal capacity to sne.
    2. That there is a defect of parties defendant.
    8. That several causes of action are improperly joined.
    4. That the petition does not state facts sufficient to constitute a cause of action against the defendant, Neil.
    The demurrer was overruled, and an exception was-noted. Neil answered, denying many of the allegations of the petition, and set up affirmatively in a second defense, “that at the time he signed the guaranty set out in the petition, it was in substance understood and agreed between the parties to said guaranty that the said several sums of money to be paid by said .several subscribers were-to be collected from, and paid by said several subscribers, and said guarantor, Robert E. Neil, was not to be called, upon to pay, or compelled to pay said several sums of 
      money or any part thei’eof, until said subscribers had first been duly prosecuted to the last resort of the law, and •found not to possess any property that could be legally applied to the payment of said subscribed sums.” A demurrer to this defence was sustained, and Neil excepted.
    The issues of fact were submitted to a jury and found for the plaintiff below, and judgment was rendered against both defendants for the sums subscribed. A petition in error was prosecuted in the district court to reverse the judgment of the court of common pleas, the principal -err’or assigned being that the court erred in overruling the domu-rrer to the petition, and in sustaining the demurrer to the second defense in the answer of Neil.
    The judgment of the court of common pleas was affirmed.
    Leave is now sought to file a petition in error to reverse both judgments.
    
      J. Wm. Baldwin and Collins $ Atkinson, for the motion,
    •contexrded that the act of March 22, 1870 (67 Ohio L. 20), was in conflict with the first section of article 13 of the •constitution. The act is a special act. 1 Blackst. Com. 86; Pottex’’s Dwarris on Stat. 53. It confers, or rather attempts to confer, corporate powers upon the trustees of the college. The section of the constitution referred to was •clearly intended to disable the general assembly from creating corporations or conferring upon them corporate pow•ers by special acts of legislation. 15 Ohio St. 35 ; Atkinson v. M. § C. B. B. Co., 15 Ohio St. 21; Ohio v. Cincinnati, :20 Ohio St. 35; 23 Ohio St. 446.
    As to what is a corporation, see 4 Wheat. 543, 561; 4 Pet. 561; Ang. on Corp., sec. 110; 2 Rent’s Com. 277, 278; Ang. & Ames on Oorp. 5 ; lb., sec. 76.
    ■ These authorities go to show that whenever the language manifests the intention of the government to confer -corporate privileges, they may be conferred without adopting auy particular technical language. And see also Ang. & Ames on Corp. 12; 4 Ark. 620; 8 Ark. 57; 3 Eng. 236; 10 Barb. 349.
    In the act of 1870 (and the subsequent acts, 67 Ohio L. 95; 68 Ohio L. 13; 69 Ohio L. 52, 204; 70 Ohio L. 107, 110; 71 Ohio L. 78) all the essential powers are conferred upon the board of trustees of the Ohio Agricultural and Mechanical College to make it a corporation, although the words corporate, etc., are not mentioned. And the general assembly of Ohio has never attempted to confer such powers corporate, under the constitution of 1851, upon any ■other state institution.
    The petition improperly united several different causes ■of action—one on the subscription paper against defendant Rudisill; one on the written guaranty against defendant Neil. Dewey v. Ward, 12 How. 419; Enos v. Thomas, A How. 48; 5 How. 351; 10 Barb. 638; 44 Barb. 642; 21 Barb. 531, 540; 12 N. Y. Leg. Obs. 222.
    
      John Little, attorney-general, and Llewellyn Baber, contra.
   Boynton, J.

The demurrer to the second defense in the answer was properly overruled. The facts therein stated, .as we understand them, are, in substance, that- at the time the subscription and guaranty were delivered to the trustees of the college, and by them accepted, it was understood and agreed between the parties, by a contract resting in parol, that Neil was not to become liable on the guaranty, until an effort to collect the sum subscribed from the subscriber, Rudisill, by legal process, had been made and failed.

The manifest purpose, as well as the direct tendency of proof supporting the averment made, was to contradict the written instrument sued on, and to destroy its legal effect, by showing the guaranty to be one for collection, rather than the payment, of the sum subscribed. To have received •such evidence would have violated the familiar rule that ■excludes all oral testimony offered to vary or control the written stipulations of the parties. Thurston v. Hays, 6 Ohio St. 1; Morris v. Faurot, 21 Ohio St. 159; Davis v. Randall, 115 Mass. 547; 15 Am. R. 146; Forsythe v. Kimball, 91 U. S. 291.

We are also of the opinion that there was no error in the order overruling the demurrer to the petition. Two-of the grounds therein assigned arc easily disposed of—namely, that there is a defect of parties defendant, and that several causes of action are improperly joined. As to-the first of these, there is nothing on the face of the petition showing other parties defendant to be necessary or wanting. The argument of plaintiff’s counsel upon the point, proceeds upon the mistaken notion, that where there is a misjoinder of parties, there is necessarily a defect of parties. Such is not the case. That this ground of error applies, or is available, only in the case of nonjoinder of necessary parties, is settled by an undivided current of authority. Powers v. Bumcratz, 12 Ohio St. 278; Palmer v. Davis, 28 N. Y. 245; Berkshire v. Shultz, 25 Ind. 523; Mornan v. Carroll, 35 Iowa, 22; Truesdale v. Rhodes, 26 Wis. 215, 220; Pomeroy on Rem., sec. 287.

As to the second ground, there is but one cause of action stated in the petition against the plaintiff in error and it was clearly proper to unite Rudisill, the subscriber to the college fund, with Neil, the guarantor, if the subscription and guaranty created either a joint obligation, or a-, several liability, provided such several liability arose upon the same obligation or instrument. That the liability thus arose will be seen hereafter. Whether the objection, that sev'eral causes of action are improperly united, can be taken, by demurrer, where the causes of action stated are not against the same, but are against different defendants, we-need not determine. Pomeroy on Remedies and Remedial Rights, §§ 290, 446, 447, et seq.; Powers v. Bumcratz, 12 Ohio St., supra.

The two remaining grounds of demurrer require a more extended notice. It is claimed by the plaintiff, that the board of trustees of the college has not legal capacity to-sue,-and, therefore, that the judgment was improperly reu■dered in its favor. It is not, however, denied that the .fourth section of the act establishing the college (67 Ohio L. 20), expressly confers upon the board, the “ right of ¡suing and being sued, of contracting and being contracted -with;” hut it is contended that such act, “ in so far as it attempts to constitute the defendant in error the board of trustees of said college, and clothe it with the power therein mentioned,” is in conflict with the first section of the thirteenth article of the constitution, which declares that the •“ General Assembly shall pass no special act conferring corporate powers;” the claim being that the board is, to all intents and purposes, created a corporation and clothed with corporate functions and privileges. 'We are not able to yield our assent to this construction of the statute. The act is entitled “ an act to establish and maintain an AgrR -cultural and Mechanical College in Ohio.” It creates a board of trustees to be appointed by the Governor, by and with the advice and consent of the senate, and commits to .such board the government, control and general management of the affairs of the institution; and while the statute authorizes the board to make contracts for the benefit of the college, and to maintain actions, if necessary, to em force them, and to exercise other powers similar to those-■conferred on bodies corporate, it does not assume to, nor does it in fact, create or constitute such board of trustees a ■corporation; and hence does not clothe it with corporate functions or powers. The State ex rel. The Attorney General v. Davis, 23 Ohio St. 434. The college is a state institution, designed and well calculated to promote public educational interests, established for the people of the whole-state, to be managed and controlled by such agencies as the legislature in its wisdom may provide. Similar powers, but perhaps less extensive, because less required, are conferred on the trustees of the various hospitals for the insane (73 Ohio L. 80), and on the board of managers of the Ohio .Soldiers’ and Sailors’ Orphans’ Homes (67 Ohio L. 53), and other institutions of the state. The powers thus conferred-.are essentially necessary to accomplish the objects for which these institutions were established. The power to-establish them is found clearly granted in the seventh article of the constitution.

The remaining objection taken to the petition is, that it does not state facts sufficient to constitute a cause of action against the plaintiff in error, because, first, the action being 'joint against him and Rudisil, a joint liability is necessary to sustain it, and no such liability being alleged, the action can not be maintained; and secondly, that he being a guarantor only, no liability arises without demand and notice,, or until failure to collect the debt from the principal prom-i'ssor, upon the employment of due diligence for that purpose. The point last made is settled against the plaintiff’ in Clay v. Edgerton, 19 Ohio St. 549. It is there held, that1 “a guaranty of the payment of a debt is absolute and unconditional, and that no averment in the petition of demand and notice is requisite to make a prima facie case for recovery upon it.” In such case, a breach of the agreement of the guarantor results from the non-payment of the debt.

■ Upon the other point, as was said in Kautzman v. Weirick, 26 Ohio St. 332, at common law a joint action could only be brought to enforce a joint liability. But such is not the rule of the Code. Section 38 provides, that “ persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may, all or any. of them, be included in the same-action at the option of the plaintiff’.”

The petition substantially shows, that the subscription and guaranty thereto anuexed, were delivered and accepted as one instrument, at the same time and place, upon the same-consideration, and for the same purpose. Erom these allegations, considered in connection with the instrument itself, we think it sufficiently appears that the liability of the sub. scriber and guarantor arises upon the same instrument. It-will be observed that this provision includes parties to bills of exchange and promissory notes; and if an indorser of a bill or note, who can only be charged after demand and notice of non-payment, may properly be united or joined in an action against the acceptor or maker, there can be little-doubt, that the joinder in the present action was clearly within the above provision of the code, if the liability of the parties joined was several. If their liability was joint-,, they of course were properly united. It is, therefore, immaterial to inquire, whether the contract of subscription- and the guaranty, are, for all purposes of the remedy, to boconsidered as joint within the doctrine of Stage v. Olds, 12 Ohio, 158; Leonard v. Sweetzer, 16 Ohio, 1, and Gale v. Van Arman, 18 Ohio, 336; or -whether all of these cases rest upon a satisfactory foundation. A joint action may properly be brought, where the liability is joint, or is joint and several, or is several, if the several liability is on the same obligation or instrument.

Leave refused.  