text:
    ARREST — CRIMINAL LAW
    [Cuyahoga (8th) Circuit Court,
    May 27, 1907.]
    Winch, Henry and Marvin, JJ.
    John Lenarcie v. State of Ohio Frank Park v. State of Ohio.
    Mayor’s Seal Necessary to Validate Warrant for Arrest.
    A warrant for arrest issued by the mayor of a municipality without affixing to it his official seal, as provided in Sec. 1536-773» R. S. (Sec. 4549 G. C.), is invalid.
    Error.

      Glenn E. Griswold and O. H. L. Castle, for plaintiffs in error.

      W. B. Wheeler, for defendant in error.
   MARVIN, J.

The conclusion reached in these eases depends upon a proposition applicable alike to each, hence the result is here announced in both. The judgment of the court of common pleas affirming the judgment of conviction rendered by the mayor of Nottingham must be reversed, as well as the judgment of the mayor. The result reached is in conflict with the views entertained by me at the hearing, but an examination of the authorities has convinced both me and my associate that the mayor in each of these cases should have discharged the prisoner, upon the motion to discharge made before him, and this because his seal was not attached to the warrant issued for the arrest.

I am disposed to criticize counsel for plaintiff in error in not having taken pains to cite the statutes upon which he relies by their present numbers. He cites Sees. 1745 and 1837; both of those sections are repealed, and it would not be asking too much of counsel, as we think, to require them to cite the sections of the statute as they now are. The sections as they now are, however, upon which the plaintiffs in error rely, are Sec. 1536-774 R. S. (Sec. 4550 G. C.), which requires that the council shall furnish to the mayor the corporate seal of the corporation, describing the seal, and Sec. 1536-773» R. S. (Sec. 4549 G. C.) speaking of the duties of the mayor, which provides that “he shall subscribe his name and affix the official seal to all writs, processes, transcripts and other official papers.”

Among the authorities which have been examined and which convince us of the necessity of the affixing of the seal, to make any writ, including a warrant for arrest, Valid, which is issued by an officer having a seal, we call attention to Boal, Lessee of v. King, 6 Ohio 11. In this case it is said in the opinion by Lane, J.:

“No principle is more definitely settled than that the process of a court having a seal can only be evidenced by its seal, which is the appointed mode of showing its authenticity. Without it, a majority of the court hold such process void.”

The first clause of the head-note reads:

“An execution issued without a seal from a court having and using a seal is void and of course all proceedings under it are void too.”

In Rankin v. Sanderson, 35 Ohio St. 482, it is held that the statute which provides that a bill of exceptions must be signed and sealed is to be strictly construed, and that no bill can be considered except it is sealed, in case it is taken from a court having a seal.

There is an old English case, Padfield v. Cabell, Willes, 411 in which it is held that a warrant of distress without a seal is valid, but only because no seal is required by the terms of the statute.

In State v. Goyette, 11 R. I. 592, the question under consideration was whether a warrant issued by an officer having a seal and returnable to a court having another and different seal, should have upon it the seal of the officer issuing the writ or the seal of the court to which it was made returnable, and at page 593 this language is used:

“Under the statute, criminal complaints are to be made to a trial justice or his clerk, and the warrants are to be issued by such justice or clerk. A warrant, therefore, should be under the seal of the justice or clerk who issues it. It should not, as the defendant contends, be under the seal of the court to which it is returnable.”

In Tackett v. State, 11 Tenn. 392. [24 Am. Dec. 582], the syllabus reads:

“Warrant of arrest in a criminal case not having the magistrate’s seal is void. ’ ’

In Bell v. Farnsworth, 30 Tenn., 608, this language is used in the opinion at page 611:

“But it appears on production of the warrant, although it had been obtained at the instance and on the oath of the plaintiff, that yet it was defective in legal formality deemed in law to be indispensable. Giving-effect to this objection to the full extent of this proof, it goes no further than to vitiate the warrant, and any proceedings which occurred subsequent to the warrant and predicated upon it.”

In Bishop, New Criminal Procedure, Sec.-227, this language is used :

“Opinions are divided as to whether the warrant of a justice of 'the peace must 'be under seal, where the statute is silent on the question. Chitty deems that though a seal is commonly looked upon as necessary, still in the absence of a statutory requirement, the warrant seems to suffice if in writing and signed by the magistrate. It has been adjudged valid without seal in South Carolina, New Hampshire and New York; but in some of the other states the seal is held to be essential. ’ ’

. By an examination of these cases it will be found that wherever it has been held that a seal is not necessary to the validity of a warrant there was no statute requiring a seal to be affixed. In this state, as appears by the statutes to which attention has already been called, the mayor is provided with a seal, and is required to attest all writs issued by him by using his seal. The want of this seal was not waived by the prisoner in either of the cases under consideration, but in each case the motion was made to discharge because of the invalidity of the warrant for want of such seal, which motions were overruled.

The fact that the mayor later on affixed his seal does not cure this defect. The result is the reversal of these cases as already stated, and the order here is that both of the plaintiffs in error be discharged.

Notwithstanding this holding, which entirely disposes of the eases, we have examined the other proceedings complained of as erroneous and find that if the warrants had been valid, the other proceedings were without error.

Henry, J., concurs.

Winch, J., not sitting.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    ERROR — INTOXICATING LIQUORS
    [Cuyahoga (8th) Circuit Court,
    May 20, 1907.]
    Winch, Henry and Marvin, JJ.
    Edward Miller v. State of Ohio.
    1. Petition in Error not Refused for Failure to File in Thirty Days because Court not in Session to Grant Leave to File.
    When a motion for leave to file a petition in error is presented to the clerk of the circuit court, within the time prescribed by law, the court will not refuse to allow the petition to be filed on the ground that leave was not obtained within thirty days, when the court was not in session during that time.
    2. Judge Issuing Warrant for Violation of Liquor Laws not Disqualified to Try Accused.
    The judge who has issued a warrant for one accused of violating any local option law is not thereby disqualified to try the accused under the provisions of Sec. 4364-30 R. S. (Sec. 13231 G-. C.)
    3. Status of Local Option District Fixed by Earliest Legal Finding.
    When a petition to declare a certain residence district “dry” territory has been properly filed, with a common pleas judge, a hearing had, and a finding made that the territory is “dry,” the status of the territory will not be changed by a later finding by a mayor of the municipality that the territory is “wet,” even though the petition upon which the mayor acted was filed at an earlier date than that upon which the judge acted.
    Error.

      George W. Shaw, for plaintiff in error.

      A. W. Lamson and F. D. Morrow, for defendant in error.
   MARVIN, J.

Miller was brought before the Hon. George L. Phillips, a ;judge of the court of common pleas of this county, and found guilty upon an affidavit charging him with violating the second section of an act passed by the legislature on February 22, 1906 (98 O. L. 12), entitled “An act to provide for the enforcement of local option laws and to prohibit the sale of intoxicating liquors as a beverage.” This section is now Sec. 4364-30 O. R. S. .(Sec. 6171, 6172 G. 0.), and to reverse the judgment of conviction, a motion is now made for leave to file a petition in error in this court.

As to this petition the facts are, that at the time the motion was filed, which was within the time prescribed by law for the filing of such petition in error, this court was not in session, nor was it in session for several weeks thereafter, 'nor until the time within which petition in error could, under the terms of the statute, be filed.

On the same day that this motion was filed the plaintiff in error delivered to the clerk of this court a petition in error, and had the same filed as of that date.

On the part of the defendant in error, it is urged that this motion should not be granted for. the reason that it is provided by statute that such petition must be filed within thirty days after the rendition of the judgment complained of. This court has already held, that where the court is not in session at the time when the petition in error should be filed, so that there is no opportunity to file a petition in error, if such motion is filed within the proper time the motion will be heard after the thirty days, providing the court has not been in session before that time. We think the legislature could not have intended a perféctly .vain thing in providing for proceedings in error under this statute. The contention made by the defendant in error would make it possible for those wanting prohibition within a given territory, to file their petiton (and it would be equally true that those desiring to prevent prohibition within a given territory could file their petition) at such time that it would be certain the circuit court would not be in session within the thirty days after the hearing of such petition, and so either side desiring to prevent a proceeding in error could, by filing the petition within a specified time, make it practically certain that no proceeding in error could ever be had. This would practically nullify the provision of the statute with reference to proceedings in error. This could not have been the intention of the legislature, and we hold that where the motion is filed within the time and the petition is presented to the clerk for filing at the same time, the eonrt will not refuse to allow the petition to be filed simply on the ground that leave was not obtained within the thirty days, when the court was not in session during that prescribed time.

We come, then, to consider the question whether any error is shown upon the record which would justify the granting of leave to file the petition in error.

On the part of the plaintiff in error a motion was made before the trial court to dismiss the accused upon the ground that the affidavit upon which the prosecution was based purports, by language used in the beginning of such affidavit, to have been made before Judge Phillips, whereas it is certified to have been sworn to before a deputy clerk of the common pleas court. This motion was overruled, and we think properly overruled. The affidavit might have been made before any officer authorized to administer oaths, as this deputy clerk was. It is said, however, that the prisoner should have been discharged on the ground that the warrant upon which he was arrested was issued by the judge of the court. A motion to that effect was made and overruled. There was no error in this action of the court. The warrant was issued by an officer authorized under the act to try the ease, and necessarily this officer must have had some means of getting the prisoner before him.

The section which provides for the trial is numbered 18 and reads:

“Any common pleas or probate judge with whom an affidavit is filed, charging the violation of any of the local option laws of the state, prohibiting the sale of intoxicating liquors as a beverage, when the offense is alleged to have been committed in the county in which such judge may sit, shall have final jurisdiction to try such case upon such affidavit without a jury, unless imprisonment is a part of the penalty, and in any case under this act, it should not be necessary that any information be filed by the prosecuting attorney or that any indictment shall be found by the grand jury.”

It is said that there was error in the trial in that the location of the place of business of Miller, which it is admitted was a saloon where intoxicating liquors were sold, was not within the territory in which such sales were prohibited. If this place of business is within territory in which the sale of intoxicating liquors, or the keeping of a place for the sale of intoxicating liquors was prohibited by law, confessedly Miller was guilty.

The facts are: That a petition was filed, under the statute authorizing the filing of same, with Judge Ford, a judge of the court of common pleas. That petition before Judge Ford was heard, and upon the hearing it was found that all the proceedings were regular and proper and that the sale of intoxicating liquors was prohibited by law in the territory described in said petition.

Another petition, however, was filed with the mayor of the city of Cleveland, praying that in the territory described in said petition the sale of intoxicating liquors should not be prohibited. That the1 sale of intoxicating liquors should not be prohibited within that territory was found by the mayor and these proceedings were regular.

The petition filed with the mayor was filed before the petition filed with Judge Ford, above referred to, but the petition filed with the mayor was not heard until after Judge Ford had decided that in the territory included in the petition filed befóre him, the selling of intoxicating liquors was prohibited, so that when the hearing was held before the mayor it had already been found and decided by Judge Ford, under the statute authorizing such proceedings, that the territory described in the petition was what is ordinarily denominated as “dry” territory.

We know of no provisions of law nor of any reason why the fact that a petition was on file with the mayor to have this terri-. tory declared “wet,” should in anywise interfere with Judge Ford’s jurisdiction to find that it should be “dry,” and he having so found, no subsequent action of the mayor, upon the petition filed with him, could take away the prohibition resulting from the hearing before Judge Ford, and the motion for leave to file petition in error is overruled.

Henry, J., concurs.

Winch, J., not sitting.


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    FRAUD AND DECEIT — JUDICIAL SALES
    [Cuyahoga (8th) Circuit Court,
    March 18, 1907.]
    Winch, Henry and Marvin, JJ.
    Minnie Marcellus Bruce v. Kate T. Ryan et al.
    Purchase by Wife of Sheriff of Property Formerly Sold at Sheriff’s Sale not Per Se Fraudulent.
    The mere fact that the wife of a sheriff, has at some subsequent time purchased property sold at a sheriff’s sale does not establish the existence of fraud in the sale.
    Appeal.

      Carr, Stearns & Chamberlain and A. H. Martin, for plaintiff.

      Smith, Taft & Arter, for defendants.
   MARVIN, J.

The facts are that in 1893, William R. Ryan was the sheriff of this county, and Kate T. Ryan was his wife. An action was pending in the court of common pleas brought by the Citizens Savings & Loan Association against one Marcellus, to foreclose a mortgage, and there were several lienholders who answered in the case, which proceeded in said court of common pleas so that an order of sale of the premises described in the mortgage was made on May 18, 1893; the property was appraised at $5,000, and after due advertisement the property was sold by the sheriff on June 23, 1903, to S. L. Halle for $3,334, being two-thirds of the appraised value. On June 24 of the same year the order of sale was returned, and on June 27, the sale was confirmed, arid a deed was made on that day to Halle. On July 1, 1893, Halle paid the money to the sheriff, and the deed was on the same day delivered to him. The books of the sheriff, particularly one called “Order and Sale Book,” show that the money was paid by Halle to the sheriff on June 30; the sheriff entered on his book the receipt of the entire purchase money, and by his book called “Cash Execution Docket” it is shown that on July 31 he paid the avails of the sale, less the taxes and his costs, to the clerk of the court, and it was receipted for by Charles A. Kuzell, deputy clerk, as shown on page 31 of that book. On October 20, 1893, Halle deeded this property to Kate T. Ryan, the wife of the sheriff, and Mrs. Ryan filed her deed for record in February, 1894. •

Suit is brought here to have the sale set aside and the property declared to remain in the ownership of those to whom it belonged before the sale was made, subject to the lien's thereon, of course. The evidence shows such facts as have so far been detailed, and the evidence further shows, if Mrs. Ryan is to be believed and Mr. Ryan is to be believed, that at the time of the sale of the property to Halle there was no understanding or arrangement at all that Mrs. Ryan or Mr. Ryan was to be the purchaser of the property or that it was ever to become their property. But it is said that the sale having been made by Halle to Mrs. Ryan, the consideration in the deed was $5,000, whereas, as a matter of fact nothing more was paid by Mrs. Ryan than $3,500. It is said that this fact is a suspicious circumstance and that we ought to hold that the sheriff was the trustee of the property, and continued to be the trustee; that it was a sale made indirectly to himself, because the evidence shows that the money was really furnished by Ryan. It is true, however, that there was an arrangement between Ryan and his wife, at the time he was the sheriff, that she was to act as matron of the jail during his time as sheriff, and was to receive $1,000 per year for her services. It appears that she was not on any pay roll and that no book account of her services was kept. She received money from her husband during this time for clothing and her other necessary expenses. But we regard this as of slight consequence, as the sale was practically a sale to Ryan. We are not satisfied that there was any arrangement between Halle and the sheriff, that the sheriff should receive the property from Halle. We think that the circumstances and the evidence are such as to justify the conclusion that the purchase by Ryan from Halle was made in good faith; that the sale to Halle was made in good faith; that it was a T>ona fide sale, that Halle bought the property and thereafter not wanting it, for Mrs. Ryan says that he stated to her where there was another party who wanted to buy it from him, sold the property to the Ryans. He had paid for it and got his deed for it, and then kept it for some little time. Mrs. Eyan says that she and her husband wanted a home. They had several children.

"When Mr. Eyan got this office of sheriff one of the things he thought of was that they should purchase a home. But it is said that it is hardly to be supposed that he contemplated that he would use this property as a home, as it was not well adapted for that purpose; that they certainly could have found something more desirable. In any event they used it as a home and they lived in it more than ten years as their home.

A good many authorities have been cited to us, or rather oiir attention has been called to a good many authorities, including the case of Barrington v. Alexander, 6 Ohio St. 189. In that case the administrator, under order of court, for the payment of debts, made a sale to parties who failed to pay for the property. They did not pay and the administrator arranged with the appraiser that he should charge himself with the money as though he had received it, and he should take a deed of the property, instead of putting the property up again for sale, as he should have done, because there was no completed sale. In that case it is said in the syllabus:

“8. The fiduciary relation of an administrator to the land of his intestate is not terminated when it is struck off and dedared sold at public auction, but continues until the title of the vendee becomes perfect, by the payment of the purchase money and the delivery of the proper deed of conveyance, whereby the title passes from the heirs of the estate, unincumbered by any charge in favor of the administrator or the estate arising out of the sale. ’ ’

But in the ease now under consideration the purchase money had been paid, the title had passed, the sale was perfected, and there remained nothing more for the sheriff to do in connection with it.

Attention is called also to the case of Piatt v. Longworth’s Devisees 27 Ohio St., 159.

In that ease it is shown that an arrangement was made between the executor and certain others, that the property should be sold, that he would furnish money for the purchasers and charge himself with it, as though he had received it in good faith. He took the property which was deeded to him later by these purchasers. It was held that he held it as a trustee; that it was not a perfected sale.

The case which seems to us to be the nearest to that which is now before us for consideration is that of Rammelsburg v. Mitchell, 29 Ohio St. 22. In that case Robert Mitchell and another, as trustees under the will of Frederick Rammelsburg, deceased, sold the interest of Rammelsburg in a St. Louis business. Rammelsburg and Mitchell were large manufacturers of furniture in Cincinnati; they established stores in quite a number of cities, including a store in St. Louis, and Mitchell, one of the trustees under the will of Rammelsburg, sold the interest of the said Rammelsburg in the St. Louis business to one William Mitchell. It does not appear whether there was any relationship between the trustee and the purchaser. The sale was made in January, 1904. In February, 1904, one month later, Robert Mitchell, one of the trustees, purchased a one-sixth interest from William Mitchell in the property sold at St. Louis. The property sold at St. Louis was an undivided interest of Rammelsburg, deceased, sold to Robert Mitchell, partner of the said William Mitchell, who made the purchase of Rammelsburg’s interest. Robert bought from William a one-sixth interest,, so that each then owned one-half of the business at St. Louis. The court found no actual fraud and no constructive fraud and upheld the sale to Robert. Robert was still, however, a trustee under the will of Rammelsburg, not for this property, but for the other property still in his hands.

We reach the conclusion here, therefore, that judgment should be rendered for the defendants, and the petition dismissed at the costs of the plaintiff.

Winch and Henry, JJ., concur.


text:
    ATTACHMENT AND GARNISHMENT
    [Cuyahoga (8th) Circuit Court,
    May 20, 1907.]
    Winch, Henry and Marvin, JJ.

       Williams Edwards Co. v. Max Golstein.
    Attachment Bondsmen Liable only for Value of Property Taken.
    The signers of a bond given in an attachment proceeding under the provisions of Sec. 6513 R. S. (Sec. 10287 G. C.), are liable only for the value of the property attached and not to the extent of the judgment which may be secured in the case.
    Error.

      Klein & Harris, for plaintiff in error.

      Peskind & Perris, for defendant in error.

       Affirmed, Edwards Co. v. Golstein, 80 Ohio St. 303.

   MARVIN, J.

The only question in this ease is whether a bond given in an attachment proceeding under Sec. 6513 R. S. (Sec. 10287 G. C.), binds the obligors iii the bond for the payment of whatever judgment may be recovered in the action, or whether it simply binds the obligors to the extent of the property attached. The court of common pleas held the obligation to be the latter.

On the part of the plaintiff in error attention is called to a decision of the Hamilton common pleas, rendered by Judge Pfleger in the case of McCartney v. Williams, 17 Dec. 645 .(3 O. L. R., 692) in which, in a well considered opinion the contrary doctrine is held. That.opinion with the authorities cited in it, impresses us as having much merit, and but for the fact that the circuit court of the second circuit has held otherwise, in the absence of any direct holding by the Supreme Court, we should be inclined to follow the reasoning in that case. In the circuit court last referred to, in the case of Saxton v. Plymire, 2 Circ. Dec. 118 (3 R. 209) Judge Shauek, distinctly holds the contrary; and the same court sitting in Franklin county in the case of Ross v. the Miller Merchant Tailoring Co. 3 Circ. Dec. 658 (7 R. 51) also holds that the bond simply binds the obligors to the extent of the property taken in attachment.

In view of these two decisions, and as has already been stated, in the absence of any decision directly in point, of the Supreme Court, we affirm the judgment of the court of common pleas.

Henry, J., concurs.

Winch, J., not sitting.


author: NIMAN, J.

text:
    ASSIGNMENTS
    [Cuyahoga (8th) Circuit Court,
    July 1, 1912.]
    Niman, Jones and Metcalfe, JJ.
    Judge Jones of Fourth Circuit and Judge Metcalfe of Seventh Circuit Sitting in Place of Judges Marvin and Winch.
    Louis Koblitz et al v. Harry Koblitz.
    Equitable Assignment can only be Made of an Existing Fund not of Commissions thereafter to be Earned.
    A fund, to be the subject of equitable assignment, must have an actual or potential existence; hence, a promise in writing to divide with the promisee a commission thereafter to be earned, can not be treated as an equitable assignment of such commission, whieh may not be revoked by the promisor at any time before actual payment.
    Error.

      J. H. Hogg and B. M. Morgan, for plaintiffs in error.

      F. J. Wing, for defendant in error.
   NIMAN, J.

The plaintiff below instituted his action in that court to recover of the defendants a real estate commission of $1,500 for negotiating a sale of property belonging to said defendants. By written instrument, dated April 8,1911, the plaintiff became entitled to receive from the defendants a commission of $1,500 in the event a certain option given by the defendants to one J. L. Free on a tract of land on Noble road, in Cuyahoga county should result in a sale, and the purchase price be paid according to the terms of the option.

There was no controversy on the trial of the case about the commission having been earned. The defense was, that the plaintiff had assigned to the said J. L. Free one-half of his commission, and that the defendants, had paid the same to Free. Before the action was started the defendants had tendered $750 to the plaintiff and in the course of the trial he accepted this amount over which there was no dispute, and the trial continued as to the other $750.

The verdict was for the plaintiff and judgment was entered on the verdict after the overruling of the defendant’s motion for a new trial.

The payment of $750 to J. L. Free, relied upon to defeat the plaintiff’s claim, was made by the defendants in reliance, as they claim, upon a written order from the plaintiff to J. L. Free, which reads as follows:

“Cleveland, Ohio, February 23d, 1911.
“Mr. J. L. Free,
City.
“Dear Sir: As per my agreement with you, I am making a contract with Messrs. Wilkoff and Koblitz Brothers to pay me a cash commission of fifteen hundred dollars ($1,500), in case you buy the fifty (50) acres of land on Cleveland Heights, upon which you have taken an option, and in consideration of our agreement and your having taken said option I hereby agree to divide the said commission with you, and this letter shall constitute your order to Messrs. Wilkoff and Koblitz Brothers to pay you seven hundred and fifty dollars ($750) of the commission at the time that you finish the ten thousand dollars ($10,-000) payment upon the land.
“Harry Koblitz.
“Accepted
“J. L. Free.”

It was claimed by the plaintiff that before this order was accepted by the defendants he had revoked it and had given notice to them of his revocation. The defendants, on the other hand, deny that they had notice of such revocation until after they had accepted the order, and thereby obliged themselves to pay $750 to J. L. Free.

The issue of fact thus raised was submitted to the jury. There was a conflict of evidence concerning this question of fact and the jury found for the plaintiff.

There is nothing to indicate that the verdict is so manifestly against the weight of the evidence as to justify any interference on this ground by this court.

The question remains, however, whether the plaintiff had any power of revocation over the order given by him to J. L. Free.

It is contended for the plaintiffs in error that the order operated as an equitable assignment to Free of one-half of the commission mentioned, and that the instrument created an equitable property right which could not be disturbed by any subsequent act of the defendant in error. If this contention be accepted, the necessary inference is that Harry Koblitz was not the real party in interest as to the claim aserted. by him in the action below.

Pomeroy, Equity Jurisprudence, Sec. 1280, contains the following statement:

“It is an established doctrine that an equitable assignment of a specific fund in the hands of a third person creates an equitable property in such fund. If, therefore, A has a specific fund in the hands of B, or in other words B, as a depository or otherwise, holds a specific sum of money which he is bound to pay to A, and if A agrees with C that the money shall be paid to C, or assigns it to C, or gives to C an order upon B for the money, the agreement, assignment, or order creates an equitable interest of property in the fund in favor of the assignee, C, and it is not necessary that B should consent or promise to hold it for or pay it to such assignee. In order that the doctrine may apply, and that there may be an equitable assignment creating an equitable property, there must be a specific fund, sum of money, or debt, actually existing, or to become so in future, upon which the assignment may operate, and the agreement, direction for payment or order must be, in effect, an assignment of that fund or of some definite portion of it. ’ ’

Again in Sec. 1282 of the same work, it is said:

“What shall amount to the present appropriation which constitutes an equitable assignment is a question of intention, to be gathered from all the language, construed in the light of surrounding circumstances; for example, while it is not essential to the existence of an equitable assignment of a fund that the debtor, agent or depository should be expressly directed to pay over the money to the assignee, the absence of such a direction may tend to show an intention not to transfer a present interest in the fund, but that the arrangement is wholly executory and prospective.”

Looking to the language of the instrument which is claimed to have effected an equitable assignment of a half interest in the commission sued for, and an equitable property therein in J. L. Free, it will be seen that there was no fund actually in existence and none potentially in existence. The creation of the fund depended upon the contract that Harry Koblitz, in his communication to Free, says he is making with Mr. Wilkoff and Koblitz Brothers being actually entered into and also upon the consummation of the sale to Free in accordance with the terms of the option held by him. If it should be considered, however, that the commission sought to be recovered in the action below had a potential existence at the time the instrument claimed to operate as an assignment was executed, there is another thing to be taken into account.

It will be noticed that the instrument makes no present transfer of the interest which Harry Koblitz may subsequently acquire in a commission. The words are merely promissory in their nature. “I hereby agree to divide the said commission with you, and this letter shall constitute your order,” etc., is the language of the instrument.

The order on a future fund which constitutes an equitable assignment is to be distinguished from a mere promise to appropriate such a fund or to give an order thereon. A promise or agreement to divide does not make the division an accomplished fact.

We think, therefore, that it was within the power of the plaintiff below to revoke the order or authority given in the instrument addressed to J. L. Free, and by him accepted, before the defendants accepted the same. The liability of the plaintiff to Free for such a proceeding is, of course, a question not before us in this case.

Error is claimed to have been committed by the trial court in certain rulings on evidence which have been called to our attention.

The defendant, in the course of the trial, sought to introduce evidence to prove that at the time of the option being given to J. L. Free and before the execution of the writing under the claimed authority of which the defendants paid $750 to Free, there was an agreement and contract between the plaintiff and defendants by which he was to get $1,500 for selling the property, and that the written agreement for a commission on which the plaintiff founded his action was simply the result of putting into writing the agreement previously existing.

The court excluded this evidence and the defendants, having duly excepted, complain of the exclusion.

The ruling of the trial court was correct. Previous understandings and negotiations were merged in the written agreement. It would have been a clear violation of one of the recognized rules of evidence to have admitted the evidence offered.

The court also refused to admit evidence offered by the defendants to prove that the plaintiff had stated to J. L. Free, that he, Free, owned half of the commission, and requested him to buy the other half.

It is claimed for this evidence offered that it was competent as an aid to the construction of the contract between the plaintiff and Free. The contract, however, is not ambiguous and requires the aid of no extrinsic evidence to make it clear. In our opinion the evidence concerning the construction placed upon the agreement by the plaintiff and Free was properly excluded.

Judgment affirmed.

Jones and Metcalfe, JJ., concur.


text:
    MUNICIPAL CORPORATIONS — NEGLIGENCE
    [Lorain (8th) Circuit Court,
    June, 1913.]
    Marvin, Niman and Metcalfe, JJ.
    Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Winch.
    Thomas G. Chapman and Lorain (City) v. Steve Lepotsky.
    1. Liability for Negligence of Employes of Independent Contractor of Which Resulting Injuries might be Anticipated.
    One who causes work to be done is liable for injuries that result from negligence and carelessness in its performance by the employes of an independent contractor to whom he has let the work, when the resulting injury, instead of being collateral and flowing from the negligence of the act of the employe alone, is one that might have be'en anticipated as a direct and probable consequence of the performance of the work contracted for if reasonable care is omitted in the course of its performance.

      2. Municipality and Improvement Contractor Liable for injuries Resulting from Blast Explosion near Gas Main.
    "When a city has given to a contractor the privilege of using high explosives in excavating for a sewer, it is the duty of the contractor to use reasonable care to know the conditions in the locality where he uses explosives, and if through failure to exercise such care, he explodes a blast in such proximity to a gas main as to break it and destroy adjoining property, both he and the city are liable for the resulting damage.
    3. Contributory Negligence as Defense in Cases of Gross or Willful Negligence.
    It is not error to refuse to instruct a jury that if plaintiff’s negligence contributed in any degree to his own injury he can not recover even though the defendant be guilty of gross negligence.
    Error.
   MARVIN, J.

Lepotsky brought suit against the two plaintiffs in error to recover damages growing out of an explosion of dynalite and the igniting of gas and a gas explosion, whereby said Lepotsky’s building was substantially .destroyed and causing, also, great personal injury to him.

The facts are substantially these:

For the purpose of constructing a sewer along Pearl avenue in said city of Lorain, the city entered into a contract with said Thomas G. Chapman, whereby Chapman was to construct said sewer for the city, and in the contract entered into between the city and Chapman it was provided that:

“When rock is encountered in excavating the sewer trench and it becomes necessary to use explosives to remove it, the following precautions must be taken by the contractor: First, the sewer trench where the blast is to be made, and for fifteen feet on either side of it, must be covered with a suitable covering of timber and plank. Second, barricades must be maintained across the street at least 200 feet in either direction from the place where the blast is to be made. There shall be at least two men employed by the contractor to patrol the street and warn all persons in the vicinity immediately previous to the firing of the blast.”

The plaintiff’s building fronted on said Pearl avenue. Crossing said Pearl avenue, and not far from the building of said Lepotsky, was a main gas pipe through which gas was conveyed under high pressure by the gas company acting under franchises granted by said city. This gas pipe was about two and one-half feet below the surface of the ground. The bottom of the excavation for the sewer was much deeper.

In the prosecution of his work Chapman caused to be exploded immediately under or near to this gas main a charge of dynalite, which is very explosive: It is shown by the evidence that it is certainly not less explosive than dynamite, and it is claimed to be much more explosive.

This explosion of the dynalite caused a rupture of the gas main from which large quantities of gas escaped and was ignited, causing a fire and explosion of gas which partly destroyed the building, and the explosion itself, together with such fire, resulted in the injuries already mentioned.

On the part of • Chapman it was claimed in his answer that Lepotsky was negligent in allowing gas to escape from pipes in and about his premises, and that the gas explosion and fire was the result of such negligence on his part, but the jury found otherwise, and we are content with the finding of the jury in that regard, and indeed it is not claimed that that defense was proven, so that the facts, briefly stated, are substantially as hereinbefore set out.

Under these facts the jury found a verdict for Lepotsky against both Chapman and the city. It can hardly be doubted that Lepotsky was entitled to recover from somebody on account of the injury both to his person and to his property. It is' urged, however, on the part of the city, that as the work was being done by an independent contractor, it was not responsible, and it is said that this is especially true because the provision in the contract is that the explosives were to be used only “when rock is encountered in excavating the sewer trench,” and it is urged that this explosive was used where rock was not encountered, but that only shale and earth, packed solidly, had to be removed at the place where this explosive was used.

The word “rock” is somewhat indefinite. The noun is defined by Webster as “A large mass of stony matter; the stony matter of the earth’s crust; in geology, any natural deposit or portion of the earth’s crust, whatever be its hardness or softness. ’ ’

We are not prepared to say that the material in which this explosive was placed did not come within the permission granted to Chapman, but whether it did or not, the city by its' contract, gave to him the right to use this dangerous explosive in his work. Of course that did not relieve him from liability in case he so used it as to injure others than the city, nor would it relieve the city, in the case of an independent contractor, from liability where it permitted such independent contractor, in the execution of his contract, to make use of those things which are inherently dangerous. This is settled by numerous cases in Ohio and elsewhere. Counsel are familiar with the eases; they are cited and quoted from in the briefs and seem to us, to fully justify the proposition just made.

The facts claimed by the several parties are so admirably stated in the charge given at the trial that it is thought profitless to state them more fully in this opinion than has already been done, and the law as stated by the court meets our full approval, where this language is used :

“It is the law that one who causes work to be done is liable for injuries that result from negligence and carelessness in its performance by the employes of an independent contractor to whom he has let the work when the resulting injury, instead of being collateral and flowing from the negligence of the act of the employe alone, is one that might have been anticipated as a direct and probable consequence of the performance of the work contracted for, if reasonable care is omitted in the course of its performance. In such case the person causing the work to be done will be liable for the negligence, even though of an employe of an independent contractor.
“In this case I say to you, that the city of Lorain would be liable for the negligence of the defendant, Chapman, or his employees, if from such negligence damages proximately resulted to the plaintiff. If you find under the instructions I gave you, that damage might have been anticipated as a direct and probable consequence of the performance of the work contracted for, if reasonable care was omitted in the course of its performance, owing to the character of the work to be done, or instrumentalities to be used and the location where the work was to be done, I say to you as a matter of law, that a common duty rested upon both defendants in this case to use ordinary care, as above defined, during the progress of such sewer work in the use of explosives.
“If the defendant, Chapman, through his servants, was negligent as charged by the plaintiff in this case, then both the defendant Chapman and the city of Lorain, under the law applicable to this case, would be liable, if by reason of such negligence damage proximately resulted to the plaintiff. But if Chapman, through his servants, was not negligent under the instructions I have given you, then neither of the defendants would be liable in this action.”

We think this admirably stated the law and was wholly applicable to the case and we find no error in the charge of the court as given.

Certain requests made by Chapman were given to the jury before argument; others which were properly requested before argument, were refused. One refused, which is marked Request “No. 2,” reads:

“The lack of knowledge on the part of the defendant, Thomas G. Chapman, of the location of the high pressure main, is a defense to said action even though the city had actual or constructive notice of the location of said main.”

This request was properly refused for at least two reasons. If it had been given exactly as written, it would have been, in effect, saying to the jury that there could be no recovery on the part of the plaintiff against either defendant. Of course what was meant by the request was that it was a defense to the action as against Chapman. The language, however, is that it is a defense to said action, and if it was a defense to the action, a complete defense, then no recovery could have been had. This by itself would have justified the refusal to give the request without modification, but there is another reason, and that is, that a part of the duty of the defendant Chapman was to exercise at least reasonable care to know what the surroundings of the place were where the explosive was to be used. If this request had been given, then Chapman would have been relieved even though he failed to exercise ordinary care to know whether there was a gas main near to the place where the explosive was used.

Another request made by Chapman reads:

£ £ If the jury find that the negligence of the plaintiff in any degree proximately contributed to the injuries complained of to his person and property, as set out in his amended petition, then your verdict must be for the defendants, even though you should as a matter of fact find the defendants had been guilty of gross negligence.”

This request was properly refused. To have given this might have relieved the defendants of the result of the grossest negligence, even of willful negligence, where the negligence of Lepotsky was barely appreciable. - On this proposition see^ Cooley, Torts, 810, where he says:

‘ ‘Where the conduct of the defendant is wanton and willful, or where it indicates that degree of indifference to the rights of others which may be justly criticized as recklessness, the doctrine of contributory negligence has no place whatever, and the defendant is responsible for the injury he inflicts, irrespective of the fault which placed the plaintiff in the way of such injury. ’ ’

Also Beach, Contributory Negligence, See. 64, quoted with , approval in the case of Krause v. Morgan, 58 Ohio St. 26, 37 [40 N. E. 886], The quotation is in these words:

“In order to constitute contributory negligence on the part of the plaintiff, there must be negligence on the part of the defendant. It is accordingly the well settled rule, that when the defendant’s conduct amounts to willfulness, and when the mischief is occasioned by his intention and wanton wrongdoing, the plaintiff’s negligence is no defense.”

The term “gross negligence” is scarcely susceptible of legal definition, say our Supreme Court in the case of Griffith v. Zipperwick, 28 Ohio St. 388.

In the case of Pittsburgh, C. C. & St. L. Ry. v. Kelly, 5 Circ. Dec. 662 (12 B. 341), affirmed no opinion, Pittsburgh, C. C. & St. L. Ry. v. Kelly 53 Ohio St. 667, it is said:

“Where the crew of a railroad train receive notice of an impending danger and have the ability to stop the train and avoid the danger, they must do so, and failing to do this, they are guilty of gross negligence amounting to willfulness. ’ ’

Attention is called to this case upon the proposition that “gross negligence,” though it may exist without willful negligence, still includes willful negligence. So that to say that the defendants would not be liable even though their negligence was gross, would relieve the' defendants from responsibility if that gross negligence were willful. This was sufficient reason for refusing to give the charge as requested.

In .the case of Schweinfurth v. Cleveland, C. C. & St. L. Ry., 60 Ohio St. 215, [54 N. E. 89], it is said in the syllabus:

“In an action for negligence, it is not error to refuse an instruction that the defendant can not be held liable, though guilty of the negligence charged, if the negligence of the person injured contributed in any degree, or in any way, to the injury of which he complains. Unless the negligence of the person injured contributed directly to, or was a proximate cause of the injury, it does not preclude a recovery. ’ ’

The charge requested in this case, it is true, used the word “proximately” as qualifying the word “contributed,” but we think that the reasoning of the case last mentioned would justify a refusal on the part of the court to give the charge requested.

Another request of Chapman which was refused, is number II.

Without stopping to quote this, we justify the refusal to give it. If this had been given it would have relieved Chapman of any obligation to use ordinary care to ascertain what the surroundings were at the place where he was to explode dynalite, unless he had direct instructions from the city of Lorain as to the location of the gas main in Pearl avenue. Clearly this takes from him an obligation which he owed to every one liable to be injured by the explosion, which could have been avoided by the use of ordinary care on his part in ascertaining the surroundings.

The city also made a request for propositions to be given before argument, some of which were refused. The first was refused, it being a charge that the city was not liable and could not be held in the action. This ivas properly refused.

The second is practically the same.

The third was properly refused, because it undertook to limit the meaning,.of the word “rock” as used in the contract, and because it relieved the city from all liability in a case where, by its contract, with Chapman, it had permitted him to make use of this highly explosive material.

For like reason the fourth was properly refused.

The court refused to give request No. 6, which reads:

“The jury can, if the evidence warrants it, find a verdict against the defendant, Chapman, and not against the defendant, the city of Lorain.”

We think this was properly refused; in any event, that under the facts in the case it worked no prejudice to the city, but we think it was properly refused, because no verdict could have been returned against Chapman unless there was negligence on his part in the use of this explosive, and since he was, by his contract with the city, permitted to use the explosive, we think, if injury resulted to the plaintiff from the negligent use of it in the prosecution of the work of the contractor, the city as well as the contractor would be liable.

The court was asked by Chapman to submit to the jury certain interrogatories. These were not submitted, and the failure to submit them is complained of and assigned as error. The first reads:

“Do you find, as a matter of fact, that the defendant, the city of Lorain, knew of the existence of the high-pressure gas main at the point in Pearl avenue, Lorain, Ohio, where said explosion occurred previous to said explosion ? ’ ’

Whatever answer had been given to this question would not have determined what verdict should be rendered on the issues between the plaintiff and either of the defendants. If it had been answered in the affirmative, it would have tended to show that the city was liable, but it would not have tended to show that Chapman was not liable. If it had been answered in the negative, it would not necessarily result in relieving either of the defendants, because if, in the exercise of ordinary care, either the city or Chapman would have known of the location of this main, their liability would be the same as though the city actually knew.

The next two interrogatories are based upon whatever an swer should be given to the first, and since nobody would b« prejudiced by the refusal to submit the first, it follows that neither of the others should have been, or indeed could have been, submitted.

As to the fourth, the same reason which justified the court in refusing to submit the first justified it in refusing to submit the last.

The result is that we find no error in the record, and the judgment is affirmed.

Niman and Metcalfe, JJ., concur.


text:
    OFFICE AND OFFICERS
    [Cuyahoga (8th) Circuit Court,
    July 2, 1912.]
    Marvin, Niman and Metcalfe, JJ.
    Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Winch.

       State ex rel Charles Orr, v. Cleveland School (Bd. of Ed.) Dist. et al.
    1. Resignation from Office Need not be in Any Particular Form.
    It is not necessary that a resignation from a public office be couched in any particular words; it is only necessary that the incumbent evince a purpose to relinquish the office; that this purpose be communicated to the proper authority; and that this resignation be accepted, either in terms, or something tanamount thereto.
    2. Accepted Resignation can not be Withdrawn.
    A resignation from office, to become effective at some future time, can not be withdrawn without the consent of the accepting party.

      Affirmed no opinion, State v. Cleveland School Dist. (Bd. of Ed.), 87 Ohio St. 529.

   NIMAN, J.

On December 10, 1910, the relator was elected director of schools by the board of education of the city of Cleveland for a term of two years, beginning January 11, 1911. He duly qualified and entered upon the discharge of his duties.

On January 16, 1912, he wrote and delivered to Dr. G. C. Ashmun a communication which reads as follows:

January 16, 1912.
“Dr. G. C. Ashmun, Pres.,
“Board of Education.
“Referring to the present contention as to the office of director, it is my intention to retire from the work at an early date after confidence and quiet are restored. The limit of my services will be' June 15, 1912.
“Very truly yours,
“Chas. Orr.”

When this writing was delivered to Dr. Ashmun and read by him, he put the question- to Mr. Orr: ‘ ‘ May I show this to the other members of the board?” The answer, as testified to by Mr. Orr, was: “Make any use of it that you see fit. That is exactly my view; that is my wish; that is my feeling.' ’

At a meeting of the board of education held on the afternoon of January 16, this communication was presented to the board. A discussion followed and Mr. Orr was called before the board. He was made aware of the fact that the letter he had addressed to Dr. Ashmun earlier in the day was before the board and was under consideration.

While the testimony given by the various witnesses as to what was said by him to the board, and by the members of the board to him, is not without conflict, the fact is established that the intention of the director of schools, as expressed in his communication, then before the board, was discussed, and the concluding paragraph of the communication was declared by him to mean that he intended to retire from the office of director by June 15, 1912.

The letter of January 16 was on motion made a part of the records of the meeting of the board of education. At the time this meeting of the board was held there was pending before the board a report of the committee on business management relative to an investigation which had been requested by Mr. Orr, which dealt extensively with matters in the department of the director of schools and reported against the request of the director for an investigation of his office. The report concluded with a recommendation that the director be advised of the conclusions set forth in the report, and requested to tender his resignation.

Immediately following the consideration of the letter of January 16 and the discussion between the members of the board and Mr. Orr, a resolution was adopted by the board approving the report of the committee on business management with the exception of the last paragraph, to-wit, “and be requested to tender his resignation.”

On May 20, 1912, the relator addressed a letter to the president of the board of education, Avhieh said:

“Urged by a sense of duty, I withdraw my communication to you written under date of January 16, 1912.”

This letter was presented to the board of education by the president, but the board declined to receive it and instructed the president to return it to the director of schools.

On May 27,1912, the board of education adopted the following resolution:

“Whereas, at a meeting of this board on January 16, 1912, Mr. Chas. Orr, director of schools, filed with the board a written communication terminating his services as director on June 15, 1912, and which communication was accepted by the board at that time and became the basis for its action in amending and adopting a report then pending from the committee on business management, therefore, be it
Resolved: That the committee on business management be and hereby it is requested to consider and report at the next regular meeting of the board what action in the opinion of the committee, the board should take in regard to the situation thus created. ’ ’

Following this, on June 3, 1912, the board passed a resolution adopting a report of said committee on business management which recommended that the board proceed to elect a director of schools for the unexpired term and which expressed the opinion that a vacancy would exist in the office of director of schools from and after June 15, 1912.

On June 3, 1912, the board adopted another resolution declaring its determination to elect a school director to fill the vacancy declared to exist for the unexpired term beginning June 16, 1912, and ending January 10, 1913.

Following the adoption of the resolution, the director of schools addressed a leter to the board of education, the closing paragraph of which reads:

“That there may be no misunderstanding either to the effect of my letter of January 16, 1912, or of my present intention, you are hereby notified that I do not intend to resign my office as director of schools on June 15, 1912, or at any other time; that 1 intend to serve for the full period of my election, and that insofar as my letter of January 16 last to your president could or might be construed as a resignation on my part it is hereby withdrawn.”

The board refused to accept this communication, and on June 7, 1912, proceeded to elect Frank G. Hogan as director of schools to fill the vacancy theretofore-declared by it to exist in that office.

By this action the relator seeks a writ of mandamus against the board of education and the members thereof, to compel them to restore him to the office of director of schools of the city school district of Cleveland and to recognize him as the lawful school director of said school district, notwithstanding any finding or claim of said board or its members that he has heretofore resigned from said office.

It was held in State v. Baldwin, 77 Ohio St. 533, [83 .N. E. 907; 19 L. R. A. (N. S.) 49n; 12 Ann. Cas. 10], that “mandamus is the proper remedy to restore a party to the possession of an office from which he has been illegally removed. ’ ’ If, therefore, the relator’s contention that he has been illegally removed from his office is sound, he has chosen the proper form of action to secure restoration to that office.

To decide the relator’s right to the relief sought requires a determination first, of the question whether the communication of January 16, which the board of education treated as a resignation by the director of schools, was in fact a resignation.

The authorities are uniform to the effect that, in the absence of statutory requirement, no particular form of resignation is necessary. It need not be in writing and no special words are required. In the language of Maefarlane, J., in State v. Augustine, 113 Mo. 21, 25 [20 S. W. 651; 35 Am. St. 696].

“It is only necessary that the incumbent evince a purpose to relinquish the office; that this purpose be communicated to the proper authority, and that this resignation be accepted, either in terms, or something tantamount thereto, such as appointing a successor,” etc.

When the director of schools wrote the letter of January 16 to the president of the board stating that it was his intention to retire from the work at an early date after confidence and quiet were restored, and setting the limit of his service as June 15, 1912, he clearly evinced a purpose to relinquish his office. By his consent the letter was presented to the board, although addressed only to the president. That body was justified by the language of the communication in treating it as a resignation to take effect not later than June 15, 1912.

Having reached the conclusion that the letter of January 16 was in legal effect a resignation, we are under the necessity of determining whether it was accepted by the board of education before the date of Mr. Orr’s letter of May 20, 1912, addressed to Dr. Ashmun, president of the board of education, in which he says:

“Urged by a sense of duty, I withdraw my communication to you written under date of January 16, 1912. ’ ’

It is contended by the defendants that no acceptance of the resignation was necessary, and we are cited to the case of Reiter v. State, 51 Ohio St. 74 [36 N. E. 943; 23 L. R. A. 681], where it was held:

“By the rules of the common law, a resignation of an office does not take effect so as to create a vacancy, until such resignation is accepted by the proper authority; but the common law in this regard is not in force in this state, to its full extent, and here a resignation without acceptance creates a vacancy, to the extent at least of giving jurisdiction to appoint or elect a successor, unless otherwise provided by statute.”

In our opinion this case does not go to the extent of holding that a resignation to take effect in the future may not be withdrawn before it has been accepted. It is not necessary, however, to the decision of the case before us to determine that question, because on the facts we find that the board of education took such action at the meeting on January 16th as amounted to an acceptance of the director’s resignation.

An acceptance of a resignation need not be indicated in any particular manner. It may be formally accepted or accepted by implication.

Thus in Gates v. Delaware Co., 12 Ia., 405, it was held:

“The tendering of a resignation of a public office, in writing, to the officer authorized by law to receive it, and the filing of the same without objection by such officer, operates to vacate the office resigned according to the terms of such resignation.”

In Pace v. People, 50 Ill., 432, the syllabus, paragraph 1, reads as follows:

“A county superintendent of schools addressed and presented to the county court of his county a paper as follows: ‘The undersigned hereby tenders his resignation as county superintendent of schools.’ This paper was received by the court and handed to their clerk to be placed on the files of the court, and was by him so filed. This was a virtual acceptance of the resignation, which was not subject to be revoked by the party presenting it. It was not necessary to enter an order upon the records accepting the resignation in form.”

The board of education made the communication a part of its records. Its receipt was made the basis of dropping from the report of the committee on business management that part of the report recommending that the resignation of the director of schools be requested. The action of the board with respect to this communication indicated an acceptance of the director’s resignation as effectually as though a formal resolution of acceptance had been adopted.

Having reached the conclusion that the resignation of the director of schools was accepted before any attempted withdrawal of the same was made, there remains but one other question to be decided in this action, and that is whether, after acceptance by the board of education, it could still be withdrawn by the director and the effect of its acceptance avoided.

On this subject the law is stated in 23 Am. & Eng. Encyc. of Law (2nd Ed.), p. 424, in the following language:

“An unconditional resignation to take effect immediately can not be withdrawn even with the consent of the power authorized to accept it, and it does not seem to be material that the resignation had not been accepted. A contingent or a prospective resignation, however, can be withdrawn at any time before it is accepted, and after it is accepted it seems that it may be withdrawn with the consent of the authority accepting where no rights have intervened. ’ ’

Here, of course, the consent of the accepting authority to the withdrawal of the resignation is lacking and the attempted withdrawal was without legal effect.

It follows from the conclusions announced that the writ of mandamus prayed for by the relator must be denied and the petition dismissed.

Niman and Metcalfe, JJ., concur.


text:
    ATTORNEY AND CLIENT
    [Cuyahoga (8th) Circuit Court,
    July 2, 1912.]
    Marvin, Niman and Metcalfe, JJ.
    Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Winch.
    Western & S. Life Ins. Co. v. Charles L. Selzer.
    1. Burden of Proving Damages in Action for Neglect of Attorney is on Client.
    In an action brought by a client against his attorney for damages caused by neglect of the attorney to defend an action against the client, the burden is upon the client to prove the extent of his damages, and before he will be entitled to anything more than nominal damages he must affirmatively show what defense he proposed to make and that it would have availed.
    2. Information of Nature of Defense Prerequisite to Liability of Attorney.
    If an attorney employed to defend a suit fails to do so, and as a result judgment is rendered against his client, before he can be made liable for the whole amount of the judgment thus recovered, he must have been informed by his client what was the nature of the defense he was expected to make.
    3. Discharge of Attorney before Appeal Effected not Liable for Failure to File Appeal Bond.
    When an attorney has been directed to appeal a case to a higher court, but before the appeal had been perfected he was discharged, he is not liable in damages to his client for failure to file an appeal bond, if the time for filing the bond had not expired at the date he was discharged.
    4. Attorney can not Recover for Service when he Disregards Instructions.
    When an attorney under specific instructions from a client appeals a case from a justice court to the court of common pleas and then consents to the entry of a judgment against his client, he can not recover for services rendered in the case.
    Error.

      White, Johnson & Cannon, for plaintiff in error.

      Ong & Mansfield, for defendant in error.
   MARVIN, J.

The parties stand in the reverse order from that occupied by them in the court of common pleas. The terms “plaintiff” and “defendant,” used in this opinion, refer to the parties as they were in the court below.

The plaintiff is an attorney at law; he sued to recover compensation for services claimed to have been rendered by him to the defendant, which is a corporation, in his professional capacity.

The home office of the defendant is in Cincinnati, Ohio. Some twelve or fifteen different suits were brought against it in the county of Cuyahoga, where plaintiff resides and was practicing his profession. He was employed by the defendant in each of these cases to defend.

It is claimed by the defendant, and the contention seems to be sustained, that as to each of these cases there was a separate employment, that is, the employment was not general, but in each case he was employed for that particular case.

It is clear that in each case the plaintiff rendered some service for the defendant, for which he would be entitled to recover but for the defense set up that he neglected his duty and failed to do the things that it was his duty to do under his employment. The defendant claims that there was such negligence in each case, and it sets up as a cross-petition that in a case brought by John F. Doreen and Elizabeth Doreen, the plaintiff failed to make any defense for the defendant; that by reason of such failure on the part of the plaintiff the said Doreens recovered a judgment against the defendant for $2,097 damages and $18.18 costs of suit, which it was obliged to pay, and so the defendant prays for judgment against the plaintiff for that amount.

On the trial the court took from the consideration of the jury all Jlaim of the defendant under said cross-petition. The result of the trial was a verdict and judgment for plaintiff for the full amount of his claim.

All things necessary to be done to bring the case to this court for review on error were done, including a bill of exceptions containing all the evidence and the charge of the court.

One of the errors complained of is the action of the court in talri-ng from the jury the consideration of the defendant’s cross-petition. The reply of the plaintiff to the answer contained also an answer to the cross-petition, and in such pleading it is alleged, and the allegation is fully sustained by the evidence, that the plaintiff did file an answer to the petition filed against the defendant by the Doreens; that such answer was prepared by the general counsel for the defendant in Cincinnati. The plaintiff was acting for the defendant under the authority and direction of such general counsel.

This answer contains all the information, so far as appears, of any facts relied upon as a defense in such action. To this answer a demurrer was filed and after argument it was sustained, on the ground that the allegations of such answer constituted no defense to the petition.

So far as anything appears in the evidence, plaintiff had no knowledge that there were any other facts on which the defense could be based, and so judgment was taken in the ease against the defendant. He did not, however, prosecute error to this judgment, nor report the judgment until it was too late to prosecute such error. He had no direct instructions to prosecute error if the decision in the- common pleas court should be adverse to his client. It was the judgment of plaintiff that error could not successfully be prosecuted but it is here urged on behalf of plaintiff in error that if there were failure to do all that should have been done in the case, the presumption arises that the defendant lost all that it was required to pay on the judgment taken against it, and that in the absence of evidence on the part of the plaintiff that no defense could have been made which would have defeated the claim of the Doreens, the defendant should have recovered the full amount claimed in its cross-petition.

In support of this contention our attention is called to the case of Grayson v. Wilkinson, 13 Miss., 268. The second paragraph of the syllabus in the case reads:

“If an attorney be employed to defend a suit and fails to do so, he is liable to the party injured to the extent of damages actually suffered; if, however, the attorney can show that the defense he was employed to make was not a good one, he would be liable at most only to nominal damages. ’ ’

In the opinion in the ease, at page 288, the court refers to the only other cases to which our attention is called on this question, and in so referring uses this language:

“The case of Godfrey v. Jay, 7 Bingham, 413, settles this principle, that if an attorney is retained and suffers a judgment to go by default he is liable for damages, and it is for him to show that the party has suffered no actual damages. • It is not for the plaintiff to show that he had a good defense; and the case cited from 2 Chit. R., 311, is to the same effect. ’ ’

The court, however, later on in the opinion uses this language:

‘ ‘ Comyn, in his treatise on Contracts, says that if an attorney is guilty of gross neglect, or conducts his business unskillfully, he is liable for any damages his client may sustain in consequence thereof. According to this rule the client would have to show what damages he had sustained. If the attorney employed to defend did fail to file a plea, that is a breach of contract and entitled the plaintiff to recover something; but if he wishes to recover damages to the amount of the judgment against him, then he must show that he has sustained damages to that amount.” ■

The court then calls attention to a case referred to in 2 Comyn, Contracts, 384, Russell v. Palmer, where Lord Camden was reversed for misdirecting the jury to the effect that the measure of damages, where counsel failed to make a defense, was the amount of the recovery.

This case in Mississippi was decided in 1845 and does not decide the question as to who had the burden of showing the amount of damages in a case where the attorney fails to defend in a ease where he is employed to defend. Authorities are quoted from, as already shown, some holding that the burden is on the attorney, some that it is on his employer; it was not necessary to determine the question in'that case.

The English ease of Godfrey v. Jay, 7 Bingham, 413, was decided in 1831. That of Bourne v. Diggles, 2 Chitty, 311, was decided in 1814. These are the latest and indeed the only authorities cited to us by either party in the case on this point. We have, however, found later authorities. See Pennington’s Exec’rs v. Yell, 11 Ark., 212 [52 Am. Dec. 262] decided in 1850, where it is said in the syllabus:

“Extent of damages resulting from attorney’s negligence must be affirmatively shown.”

In Fitch v. Scott, 4 Miss. (3 How.), 314, [34 Am. Dec. 86], the first paragraph of the syllabus reads:

“To subject an attorney to an action by his client two things are necessary to be done: Gross or unreasonable neglect or ig-norance and consequent loss to his client”

Without further examination of the authorities we are of the opinion that the contention of the plaintiff in error on the proposition that the burden of showing whether or not the defendant suffered loss by the negligence, if there was negligence, of the attorney in the case of Doreens against the defendant, was upon the plaintiff, and that the presumption was in favor of the defendant, is unsound. Before the defendant should recover more than nominal damages, if it could recover anything on its cross-petition, it must have affirmatively shown that the defense which it proposed to make would have availed. This it did not show. Indeed, so far as the question was litigated, the defense was found not to be tenable.

There is another proposition held in the case of Grayson v. Wilkinson, supra, which is found in the last clause of the syllabus, and reads:

“If an attorney be employed to defend a suit and fail to do so, by which judgment is rendered against his client, before he can be made liable for the whole amount of the judgment thus recovered it seems that he must have been informed by his client what was the nature of the defense he was expected to make.”

Attention has already been called in this opinion to the fact that the only information given to the plaintiff here as to the defense which could be made in the Doreen case was contained in the answer, which was filed and which the court found to be insufficient. In the state of the proof, then, as the case stood when the court directed the jury to disregard the cross-petition, there could have been no recovery upon it for more, in any event, than nominal damages. The recovery of such damages would have, been of no avail to the defendant except on the question of costs. If there had been nothing in the suit except the cross-petition and the issues made on that, this question of costs would have been of some importance to the defendant, but as the jury found on the other issues against the defendant, costs were necessarily carried with the judgment entered on such finding of the jury, and therefore there was no prejudice to the defendant in not submitting the question which, as the case was determined by the jury, would have been of no importance even on the question of costs. We reach the conclusion, then, as to the cross-petition, that there was no error in the ruling of the court which would justify a reversal of the judgment.

After the judgment was entered against the defendant in the Doreen ease, the plaintiff was employed by the defendant to file a petition in the court of common pleas and seek to have the judgment set aside. lie rendered certain services in that regard, he filed such petition; the case was tried in the court of common pleas and judgment rendered against the defendant in that action. The plaintiff in this action, as attorney for the defendant in the other action, gave notice of appeal to the circuit court. No bond for such appeal was given. The plaintiff says that before the time had elapsed within which the bond could have been given, the defendant discharged him as attorney in the case, and directed him to turn over the papers in the case to another firm of attorneys. It is agreed that he received such an order and did turn over the papers to the other firm of attorneys. The plaintiff testified that this turning over of the papers in the case to the other firm was before the expiration of the time within which a bond for appeal could have been filed. A witness connected with the firm to whom the papers were turned over testified that they received the papers a day or two after the time expired within which such bond could have been filed.

The court charged the jury that if the plaintiff turned the case over to the other counsel before the time limited for the filing of the bond, and notified such other counsel of the situation, then he would be entitled to recover for the services he rendered in this suit, but the court told the jury that any services he rendered which became necessary to be rendered because of his negligence in attending to the business of his client, he would not be entitled to recover for it. There was no error in this.

Without stopping to go over each item of error complained of, we reach the conclusion that except as to two of the items for which plaintiff was allowed to recover, there was no reversible error.' Those two items refer to the cases of George Doniak v. Western & S. Life Ins. Co. and the case of W. Bilkowski. In each of these cases the plaintiff was directed by a letter from the general counsel of the defendant to its business manager in Cleveland, who brought the letter to the plaintiff, to make a defense. The cases were originally brought before a justice of the peace. The plaintiff tried the cases for the defendant and lost in each case. Bach case was then appealed to the court of common pleas; the plaintiff in each of those eases failed within the proper time to file his petition and the plaintiff in this action made a motion to the court in each case to have the judgment entered for the defendant. He was unsuccessful, and a petition in each case was filed and the plaintiff in this action, without consulting his client, the defendant consented to the taking of a judgment in each of those cases.

He having been directed to make the defense and to defend the actions on appeal, indeed having himself perfected the appeals, it was his duty to have made the defense, or to have filed an answer setting up such defense, or he should have communicated with his client before consenting to a judgment in either of these cases. For each of these cases he charged $45; and his recovery includes these two items of $45 each, aggregating $90, with interest.

. We think he should not have been permitted to recover on either of these items, and that unless he consents to remit from the judgment recovered by him the sum of $90 with whatever the interest on that sum would be for the time on which interest was allowed in the judgment, the case must be remanded to the court of common pleas. If such remittitur is made, judgment for the amount remaining after deducting such remittitur will be affirmed.

Niman and Metcalfe, JJ., concur.


author: POLLOCK, J.

text:
    CONTRACTS
    [Cuyahoga (8th) Circuit Court,
    June, 1912.]
    Marvin, Niman and Pollock, JJ.
    Judge Pollock of Seventh Circuit Sitting in Place of Judge Winch.
    Hubert J. Turney, Admr. v. Rose L. Wooley.
    Mode of Proof only Distinction between Contracts Express and Implied.
    The' only difference between an express and an implied contract is as to the mode of proof, and it is as essential that there be .a meeting of the minds of the contracting parties in one as in the other.
    Error.

      Wing, Myler & Turney, for plaintiff in error.

      S. Doerfler, for defendant in error.
   POLLOCK, J.

The defendant in error, Rose L. Wooley, brought suit against the plaintiff in error in the court below on an account which was claimed to be due her from defendant’s intestate. The petition was the short form of petition on an account, and the account consisted of one item, as follows:

‘ ‘ To board, room, washing, care, nursing and attention rendered to Thomas C. Lavin, deceased, from July 19, 1904, to November 4, 1907, 171 weeks at $10 per week, $1,710.
“By cash received, $495. Balance due, $1,215.”

The petition recited that the claim had been presented to defendant, administrator, and rejected. To this petition the defendant below filed an answer admitting his appointment as administrator, admitting that the claim was presented and rejected, and denying each and every other allegation in the petition.

After the jury was impanneled, and before any testimony was offered, the defendant objected to the offering of any testimony on the ground that the action was brought on an account, as if the person were alive, under the short form, and claiming that to support such claim as the one sued on, it should be founded upon contract.

Whether this position was well taken or not need not be determined in this action, for the reason that the court below allowed the plaintiff to amend her petition, which she did, setting out the facts, and no further objection was made by the defendant.

At the close of plaintiff’s testimony there was a motion made to direct a verdict, which was renewed at the close of all the testimony. These motions were overruled by the court. The overruling of these motions is urged as error, and included in the argument is the fact that the verdict is against the great weight of the testimony.

It is urged that when a stranger comes into the home of a husband and wife and there receives boarding and lodging, that the presumption is that the contract is made with the husband, and for that reason the plaintiff below, at least, could not recover for the board and lodging of defendant’s intestate.

We are not disposed to deny this proposition of law, but equally true is the proposition that if there are facts which show that the contract was made, whether it be an express contract or an implied one, with the wife, that she would have a right to recover upon the contract for boarding and lodging. The testimony in this case shows, in short, the intestate was an uncle of this plaintiff below; that he came to the home of the husband and wife about the time stated in the petition and remained there about that time. Witnesses testify to the fact that he required a great amount of attention, took his meals frequently in his room. This is testified to by other witnesses than the husband. Then the husband is a witness and testifies that Mrs. Wooley took care of him and as to the amount of care required by him. Tie also testifies to repeated conversations between his wife and the deceased in regard to paying her for what he was receiving in their home. This witness further testifies that when the deceased came to their home, his wife showed him over the house and arranged for the room that he occupied. In fact, the husband’s testimony is all concerning the services of his wife and conversations that he heard between his wife and the deceased and which he had with the deceased in regard to the payment of his wife for his accommodation in their house.

We think that under the facts stated here it was ¡a question of fact for the jury to determine whether or not this contract was made with the wife, and especially when the husband, the only other party who could recover for such services, is testifying in favor of his wife’s claim.

The only other error complained of is in the charge of the court. The part complained of commences on page 55 of the record. The court said to the jury:

“In this case the plaintiff is suing upon an implied contract. An implied contract differs from an express contract merely in the proving of it. In general the difference between an express contract and an implied contract is the mode of proof. An implied contract is established by proof of circumstances showing that either in justice, honesty and good faith a contract ought to be implied, or that the parties intended to contract. Whether the contract is established by evidence direct or circumstantial, the consequences must be the same. The inference of an implied contract would then be practically a matter for the sound sense and judgment of you, gentlemen of the jury; however, to be guided in that respect by the instructions the court may give you.
“In other words, gentlemen, a contract is implied where one renders services to another and that other receives the benefit of the services, and the services are, of such a character and are rendered under such circumstances that it may be fairly said that in justice and equity the services ought to be paid for. In such case the minds of the parties need not meet; for if the party for whom the services are rendered in justice and equity ought to pay for them, the law implies the contract that he should pay for them.”

And further during the charge he repeats, in substance, this definition of the contract; and on page 56 he further says:

“If, however, on that proposition their minds did not meet, and the circumstances were such at the time that the plaintiff could not very well have turned this man out of her house or her husband’s house, considering the character of their relationship and all the circumstances, and that she did not agree to take care of him and furnish him lodging and shelter for $3 a week, but that he remained there, then, if you find that in justice and equity and good faith he ought to pay, or the estate ought to pay, a fair value for the services rendered, you will find there was an implied contract that they should be paid for.”

In short, the court says to the jury that this being an implied contract, that even if the jury find that the minds of the parties never met to make a contract, yet if in justice, honesty and good faith a contract ought to be implied, the plaintiff would have a right to recover. Is this a correct definition of an implied contract?

When the court told the jury that there was no difference between an implied contract and an express contract, except in the mode of proof, he was stating a correct legal proposition. An express contract is one that is proven by the express words of the parties,- an implied contract differs from an express contract only in proof of such facts and circumstances surrounding the parties that make it reasonably certain that a contract existed between the parties.

Now under the charge of the court the jury might have found that whatever services and boarding and lodging the plaintiff did furnish the deceased, she did it gratuitously, without any intention whatever of charging therefor, and that it was accepted as such and without any intention of paying' for it by the deceased, and yet, if they found that either in justice, honesty or good faith he should have paid therefor, they would have been required to return a verdict for the plaintiff.- They might have found, and in fact the court said in so many words, that they could find, that although the minds of the parties to this contract never met, yet they could return a verdict in favor of the plaintiff.

“The meeting of the minds of the parties upon its terms is necessary to the making of a contract; and this is so whether it be an express contract or an implied one, if, in the latter ease, the contract to be proved is an actual one as distinguished from a constructive contract.” Columbus, H. V. & T. Ry. v. Gaffney, 65 Ohio St. 104 [61 N. E. 152].

In the opinion in this case, on page 116, they quote from Swan, and this treatise uses practically the same language as the learned trial court in this case used in its charge, and criticize it.

Fui-ther on, on the same page, they qupte from Abbott’s Trial Evidence, with approval, and in the quotation from that work say:

“Second. Circumstances justifying the inference that plaintiff in rendering the services, expected to be paid, and defendant supposed, or had reason to suppose and ought to have supposed that he was expected to pay, and still allowed him to go on in the services without doing anything to disabuse him of this expectation.”

It seems clear from the holding of the Supreme Court in this ease that the charge of the court was clearly erroneous and prejudicial to the defendant below, and for this reason the ease will have to be reversed and remanded for a new trial.

We regret very much to be compelled to arrive at this conclusion. The services rendered by the plaintiff below were such, and rendered under such circumstances, that it seems at least in good faith she ought to be paid. But whether or not the facts proven are sufficient to show a contract to that effect, is a question that we feel should be passed upon by a jury under proper instructions from the court.

Niman, J., concurs.

Marvin, J., not sitting.


text:
    PARTIES — PROCESS
    [Cuyahoga (8th) Circuit Court,
    July 9, 1912.]
    Marvin, Winch and Niman, JJ.
    Louis N. Gross v. J. H. Wiener et al.
    Resident Having Fraudulently Induced Plaintiff to Purchase Stock in Nonresident Corporation, Property Party in Action to Rescind and Summons Issuable to Joint Defendant in Other County.
    When one by false and fraudulent representations has induced another to purchase of a third person stock in a certain corporation, in an action whereby it is sought to annul the entire transaction and recover the money paid from the person making the representations and the person to whom it was paid, the person making the representations is a proper party within the meaning of Sec. 11255 G. C., and when service has been had upon him, summons may issue to another county for the party to whom the money was paid and the corporation whose stock was purchased.
    Appeal.

      White, Johnson & Cannon, for plaintiff.

      Kline, Tolies & Morley, for defendants.
   MARVIN, J.

We are proceeding to dispose of the question submitted to us in this ease although the transcript from the court below, now in our hands, does not show that a judgment was ever rendered in the court below. We assume, however, that such judgment was rendered and that counsel will have the transcript completed.

The plaintiff’s petition was filed in Cuyahoga county, and personal service was had upon the defendant, J. H. Wiener, in said county. The two corporations which are made defendants have no residence or officer in this county but each has its place of business and home office at Akron, in Summit county.

The service of summons upon each of these two last named defendants was made by the sheriff of Summit county in Summit county.

The question presented to us is whether or not they are properly before us.

It is alleged that the relation of J. 'TI. Wiener to the other defendants is such that a service upon him in this county does not warrant service upon the other defendants outside of this county. The petition alleges that by fraudulent representations made to the plaintiff by J. H. Wiener, he was induced to and did pay to the' defendant, the Wiener-Bros. Co., a large amount of money for stock which said last named company owned in the Intervale Fruit Co. The prayer of the petition is that the plaintiff be declared not to be a stockholder in the last named company, and that his name be taken from the books of such company as a stockholder; that the Wiener Bros. Co. and J. H. Wiener be required to repay to the plaintiff what he has paid for the stock, and that he be relieved from the payment of a note given by him, now held and owned by the Wiener Bros. Co.

This is a brief statement of what practically the plaintiff seeks in the action.

On the part of the plaintiff it is urged that the service made upon the defendant corporations in Summit county is good by reason of Sec. 11282 G. C., which reads:

“When the action is rightly brought in any county, according to the provisions of the next preceding chapter, a summons may be isued to any other county against one or more of the defendants at the plaintiff’s request.”

If, then, this action was properly brought against the defendant, J. H. Wiener, who was served with summons in this county, and if he is a proper party to be joined with the other defendants in the action, it would seem clear that the service in Summit county was proper.

Section 11255 G-. C. provides:

“Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein.”

It is said that the primary object of this action is to have the entire transaction by which the plaintiff became the purchaser of the stock of the fruit company nullified, and that he be restored to the situation in which he was before that transaction took place, and that the defendant, J. H. Wiener, not being now and never having been the owner of the stock which the plaintiff purchased, can do nothing toward restoring the plaintiff to the relation in which he stood to the Intervale Fruit Co. before the purchase was made, and that since this is true, the action was not properly brought against him because it is said the action is an equitable action. But conceding, that this is in substance true, it is still true that the plaintiff seeks to recover money from both the Wiener Bros. Co. and J. H. Wiener. J. H. Wiener has answered in the case, and denies the allegations of the petition in the matter of any false representations made by him, or any fraud perpetrated by him in the transaction in any wise, and therefore denies that the plaintiff is entitled to recover anything against him.

We think he comes within those named in Sec. 11255; that he is a person “who has or claims an interest in the controversy adverse to the plaintiff.” If he has not any claim or interest adverse to the plaintiff, there was no occasion for him to file an answer nor make any defense. He makes answer because his claim is adverse to the plaintiff. He says it isn’t true that he induced the plaintiff to part with his money; he makes that issue; it is directly adverse to the claim of the plaintiff.

We think this is borne out by what is said by our Supreme Court in the case of Osborn v. McClelland, 43 Ohio St. 284 [1 N. E. 644], The language of the sixth clause of the syllabus is:

“In this respect the civil code adopts the former rule in equity, which allows all parties interested in the controversy adversely to the prima facie owner, or who are necessary to a complete determination or settlement of the question involved, to be made defendants.”

The case of Mack v. Latta, 178 N. Y. 525 [71 N. E. 97],- was decided under a statute in effect the same as our Sec. 11255 6. C. and we think that bears out the proposition that J. H. Wiener was a proper party to be joined with the other.defendants in this action. The court below thought otherwise, and thought, too, that J. H. Wiener was not a necessary party to this controversy, and in the opinion which we have seen, prepared by the court below, Sec. 11255, is quoted as reading :

“Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, and who is a necessary party,” etc.

Whether this is a mistake of the typewriter, we are not advised, but if the statute read as so quoted, it would be necessary in determining the case before us to determine the question of whether J. H. Wiener was a necessary party to this proceeding; but as the conjunction “or” is used in the statute and not the conjunction “and” we deem it sufficient to warrant us in saying, without an examination of the question of what result we reach on the question of whether J. II. Wiener is a necessary party, we find here that he is a proper party because he has an interest or claims one adverse to the claim of the plaintiff.

We reach the conclusion,- therefore, that the parties are all properly before the court, and that therefore the ease is properly here- for trial. i

Winch and Niman, JJ., concur.