text:
    Sterling, Appellant, v. Hanley Motor Sales, Inc., Appellee.

      (No. 4447
    Decided February 6, 1950.)

      Mr. J. W. Starritt, for appellant.

      Mr. Harley A. Watkins, for appellee.
   Carpenter, J.

A demurrer to the second amended petition was sustained and the petition dismissed. From that order this appeal on questions of law followed.

This case has had an unusual procedural history. The petition alleged that plaintiff purchased an automobile from defendant; that defendant “maliciously and falsely warranted the said automobile to be one month old and to be a new automobile, and to be fit and proper for purposes of a passenger automobile”; that plaintiff relied on that warranty and paid for the automobile with a used automobile, cash and a note; that the automobile purchased was not as warranted; that the automobile was not in fact new, but was five months old, was rusted, corroded, defective and not of the value paid for it; and that when plaintiff discovered these facts he notified defendant and offered to return the automobile to him and demanded back his used automobile and cash, which defendant refused. Plaintiff prayed for $1,200 actual damages and $500 exemplary damages.

Defendant filed a motion to strike out various parts of the petition, including the allegations as to warranties and. particularly that they were “maliciously and falsely” made and the negations of them, and to make other allegations definite. Also included in matters to be stricken was the prayer for exemplary damages. The defendant appended to its motion a photostatic copy of what was apparently plaintiff’s order for the purchase of the automobile, which included the terms of sale, the motor number and a provision as to warranties, and it asked the court to order plaintiff to answer under oath the interrogatory whether that was a true copy of the order and whether he signed such agreement.

The court granted practically all the motion to strike and to make definite, and ordered plaintiff to answer the interrogatory.

The plaintiff in writing objected and excepted to the interrogatory, then answered “that the alleged photostatic copy of the sales agreement annexed to defendant’s motion, was signed by the plaintiff, and that said photostatic copy to the best of plaintiff’s recollection is a correct duplicate of the original.”

An amended petition was then filed which conformed to the court’s order excepting the prayer which was for $2,000 for actual and exemplary damages, attorney fees and court costs.

A motion to strike from the files the amended petition, because it included in its prayer exemplary damages, was granted. The amended petition having been stricken, the issue on the demurrer to it was held to be moot.

An amended answer to defendant’s interrogatory was filed by plaintiff in which he stated “that the alleged photostatic copy of the sales agreement, annexed to plaintiff’s motion, was never seen nor signed by the plaintiff. ’ ’

In the oral argument in this court, counsel for plaintiff explained that plaintiff’s original answer to the interrogatory was made under a mistake of fact on his part.

A second amended petition was filed in substantially the same form as the amended petition, except the prayer was for $1,200 and there was no mention of exemplary damages. It alleged that defendant, “as part of the contract of sale, warranted the said automobile to be one month old and to be a new automobile, and to be fit and proper for purposes of a passenger automobile.”

The warranty was negatived as to age of the automobile and many defects in it were specifically enumerated. The plaintiff also alleged the offer to return the* property and the demand for the consideration paid for it.

To this, defendant demurred on the ground “that said second amended petition fails to state a cause of action against the defendant when considered together with the admissions of the plaintiff of record in. this case.”

This demurrer was sustained and, plaintiff not desiring to plead again, his amended petition was dismissed and judgment for defendant was entered.

There are three material assignments of error. Two of them relate to the action of the court in disposing of the petition and amended petition. In both the: amended and second amended petitions, objections are made and exceptions taken to the court’s action on the preceding petition.

In Grimm v. Modest, 135 Ohio St., 275, 20 N. E. (2d), 527, the syllabus states as follows the settled law of Ohio on the effect of pleading over, as did plaintiff herein after these motions were granted:

“1. The substitution of an amended petition for an earlier one ordinarily constitutes an abandonment of the earlier pleading and a reliance upon the amended one.

“2. When a substantial part of a plaintiff’s claim has been stricken from his petition he may elect to rely upon such petition and, upon dismissal of his cause by the court for refusal to amend, may have a review to determine the correctness of the trial court’s action. ’ ’

In the opinion in that case are cited State, ex rel. Talaba, v. Moreland, Judge, 132 Ohio St., 71, 5 N. E. (2d), 159, wherein it was said, “The earlier pleading becomes functus officio.'” To the same effect is Raymond v. T., St. L. & K. C. Rd. Co., 57 Ohio St., 271, 48 N. E., 1093, which was approved in Ironton v. Wiehle, 78 Ohio St., 41, 84 N. E., 425. Another recent and similar case is Bingham v. Nypano Rd. Co., 112 Ohio St., 115, 147 N. E., 1. Under those authorities, the action of the court on the motions which disposed of the petition and amended petitions is not here for review at this time.

The third assignment of error is directed to the sustaining of the demurrer to the second amended petition and its dismissal and to the final judgment entered.

The second amended petition alone does not appear to be subject to demurrer. Apparently defendant considers and relies upon the facts brought into the record by tbe interrogatory it attached to its motion to strike from and make the petition definite, and plaintiff’s first answer thereto.

Plaintiff now raises two objections to this interrogatory :

1. That by the terms of Section 11348, General Code, a party can annex an interrogatory to a pleading other than a demurrer. This one was annexed to a motion. Under Section 11303, General Code, a motion is not a pleading. Had there been a motion to strike the interrogatory, this question would have been raised in the trial court, but, having answered with only an objection as a preface to his answer, plaintiff waived his opportunity to present this question.

2. That the question propounded is not the proper subject of an interrogatory. This could have been raised by a demurrer as contemplated by Section-11348, General Code. Not having demurred, but having answered the question, plaintiff waived his right to raise this question.

Defendant urges that its demurrer searches the record, and, after consideration of the interrogatory and plaintiff’s answer in which he admitted that he signed' the contract in the form it appeared in the copy attached to the interrogatory, including the provisions as to warranties, the second amended petition does not state a cause of action.

This reasoning loses sight of the provisions of Section 11309, General Code, which provides for a demurrer to a petition. It reads:

“The defendant may demur to the petition only when it appears on its face either:

U * # *

“10. That the petition does not state facts which show a cause of action.”

The principle that a demurrer searches the record' relates only to the pleadings, it does not contemplate consideration of incidental matters which may have come into the cause such as the interrogatory and plaintiff’s answer to it.

The purpose of annexing interrogatories to a pleading is for discovery to enable a pleader to plead and prepare his own case and is not to help him destroy the case of his adversary. Schuldt v. Associates Investment Co., 61 Ohio App., 213; Ward v. Mutual Trucking Co., 22 Ohio Law Abs., 636.

Without the material thus injected into the second ámendéd petition, it was good, and the court erred in its order sustaining the demurrer and dismissing that petition.

The judgment is reversed and the cause remanded for further proceedings.

Judgment reversed and cause remanded.

Conn and Fess, JJ., concur.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    O’Leary, Exr., Appellee, v. Burnett, Appellant.

      (No. 2040
    Decided January 12, 1950.)

      Mr. Paul M. Blum, for appellee.

      Mr. Eoward E. Durst and Mr. Eugene B. Bacher, for appellant.
   By the Court.

This cause is submitted on motion of plaintiff-appellee to remand the bill of exceptions to the trial court for correction. The motion is made under Section 11572-a, General Code, which provides:

‘ ‘ When justice requires it, upon notice to all parties, an omission in a bill of exceptions, occurring through accident or error, may be corrected by the reviewing court, or it may be remanded to the trial court for such correction.”

Under this section an omission in a bill of exceptions, which occurs through accident or error, may be corrected. The motion itself does not state that the omission occurred through accident or error. In a memorandum attached to the motion counsel for plaintiff claims that the bill of exceptions does not include a letter written by the defendant-appellant, and that the omission was due to the accident of not formally introducing the letter into evidence. Thus, it appears that the omission did not occur through accident or error in the preparation of the bill of exceptions but in the failure to introduce the letter into evidence as an exhibit at the trial. The plaintiff does not claim that the bill of exceptions fails to show the true facts as they transpired at the trial. Section 11572-a, General Code, permits an omission in a bill of exceptions to be corrected only when the omission occurs through accident or error. Counsel for plaintiff in the instant case is seeking an order correcting the hill of exceptions by incorporating a letter as an exhibit which was never introduced at the trial. This is not permitted under the law. Elser v. Parke, 142 Ohio St., 261, 51 N. E. (2d), 711; State v. Caldwell, 29 Ohio Opinions, 48, appeal dismissed, 143 Ohio St., 563, 55 N. E. (2d), 865.

The motion in this case was made after the opinion was announced. The plaintiff’s action was predicated on a contract which was not to be performed within one year, and the principal question involved was whether the different exhibits submitted, consisting of several memoranda, constituted a written instrument signed by the person sought to be charged. The letter which plaintiff wishes to make a part of the record is as follows:

“January 1, 1936

“Mrs. W. J. O’Leary

“Dear Mrs. O’Leary

“Please send receipt and return in address envelope.,

“Thanking you, very truly,

“H. L. Burnett

“Wishing you and yours a happy new year.'*

We fail to see where this letter, if introduced, would strengthen the position of plaintiff. It is well settled that a- motion to correct a bill of exceptions will be denied where the correction of the bill would not result in a different conclusion from the one announced. Ekleberry v. Sanford, 73 Ohio App., 571, 576, 57 N. E. (2d), 270; Hawke v. Roberts & Hall, 13 Ohio App., 198, motion to certify overruled. The letter in question, if made a part of the bill of exceptions, would not result in a different conclusion from that heretofore announced. The motion is overruled.

Motion overruled.

Miller, P. J., Hornbeck and Wiseman, JJ., concur.


author: Skeel, P. J. McNamee, J.

text:
    Fawick Airflex Co., Inc., Appellee, v. United Electrical Radio & Machine Workers of America, Local 735, et al., Appellants.
    (No. 21497
    Decided March 6, 1950.)

      Messrs. Marshman, Hollington & Steadman, for appellee.

      Messrs. Davis, Davis & Handelman, for appellants.
   Skeel, P. J.

This appeal comes to this court on questions of law from a judgment of guilty of contempt of court of the defendant, Joseph Kres, referred to herein as defendant, for the violation of a temporary restraining order entered in this action on March 12, 1949, restricting picketing “other than peaceably and by not more than two pickets at not more than three designated places in and about the premises” of the plaintiff.

The decree of March 12 also enjoined the defendant Joseph Kres and others, including the United Electrical Radio & Machine Workers of America, Local 735, from encouraging or allowing the massing of more than two pickets at any time at any place about the plant or premises of the plaintiff, except that one representative of the union might act as a supervisor of picketing who “shall not encourage, allow or participate in a massing, congregating, assembling with two or more pickets.” Paragraphs 6, 7, 8, 9 and 10 of the decree provided as follows:

‘ ‘ 6. From interfering with, hindering, threatening or intimidating in any manner whatsoever plaintiff’s officers, agents, employees, representatives, others having business with the plaintiff or the families or relatives of any of the foregoing;

“7. From interfering with or hindering access to said plant and premises in a manner reasonably calculated to prevent ingress to or egress from the said plant and premises;

“8. From blocking or obstructing plaintiff’s driveway leading from Clinton road to plaintiff’s plant and premises in any manner whatsoever;

“9. From protecting, aiding, abetting or assisting anyone in the commission of said acts;

‘ ‘ 10. From interfering with or hindering ingress to or egress from said plant and premises, of trucks, automobiles and other vehicles in any manner whatsoever. ’ ’

On March 24, 1949, the plaintiff filed a motion to show cause why defendant Kres with others should not be punished for contempt of court, inasmuch as it was alleged that this defendant, with others, had violated the aforesaid decree, in that:

“1. They had, on several occasions, massed and congregated across Clinton road in a manner calculated to prevent access to the plant by its employees and others;

“2. The defendants on March 23 and 24, 1949, massed and congregated at the entrance of plaintiff’s plant in numbers greater than permitted by the decree and by violence, fighting, hurling of stones threatened and intimidated and injured plaintiff’s employees as they entered the plant.

“3. That the defendants on March 23, 1949, hurled stones at automobiles of plaintiff’s employees as they were entering plaintiff’s plant in violation of 4, 6, 7 and 10 in the court’s order.

“4. That the defendants on March 23,1949, in about the area of West 105th street and Linnet avenue hurled stones and bottles at automobiles of plaintiff’s employees, threatening and intimidating said employees with the attempted purpose of preventing them from going to work, in violation of paragraph 6 of the court’s order.

“5. That the defendants on the 24th day of March, 1949, placed themselves along Clinton road driveway leading into plaintiff’s plant, intimidating plaintiff’s employees by hurling rocks and bolts at automobiles of plaintiff’s employees as they entered the plant in violation of 4, 6, 7, 8 and 10 of the court’s order.”

Upon trial of defendant Kres, so far as this appeal is concerned, the court found him guilty of five specific acts committed in violation of the temporary injunction and of one act of summary contempt in the presence of the court by “telling a deliberate falsehood while testifying under oath in this proceeding.”

The five specific instances in which it was held that this defendant violated the injunction, are as follows:

“1. He had general supervision and direction of groups of persons composing a mob, who gathered at West 105th street and Linnet avenue on the morning of March 23, 1949, and attempted to prevent a group of plaintiff’s employees from going to work;

“2. He participated in an attack on the automobile of one Dominie Mayo, in the vicinity of West 105th street and Linnet avenue on the morning of March 23, 1949;

“3. He led an attack on the automobile of one Dominic Mayo at the entrance to plaintiff’s plant and premises on the morning of March 24, 1949;

“4. He led an attack on the automobile of one John Sine at the entrance to plaintiff’s plant and premises on the morning of March 24, 1949;

“5. He led a group of persons that rushed and attacked the automobile of plaintiff’s employees at the entrance to plaintiff’s plant on the morning of March 24, 1949.”

Defendant Kres by this appeal presents the following alleged errors by which he seeks to reverse the judgments of contempt entered against him:

“1. The court below erred to the prejudice of defendants appellants and abused its discretion by refusing to grant the motions for a bill of particulars, or to make definite and certain.

“2. The court below erred in denying the motion of defendant appellant for dismissal of the charge against him made at the close of plaintiff’s testimony and renewed at the close of all the testimony.

“3. The sentences of the court below were severe, harsh and excessive and without authority under the law;

“4. The court below erred in admitting evidence offered by the plaintiff and excluding evidence offered by the defendant;

“5. The court below erred to the prejudice of defendant, Kres, and committed grave abuse of discretion, in requiring defendant to deposit security bond, the same not being authorized by law;

“6. The court below erred to the prejudice of defendant, Kres, and committed abuse of discretion in allowing and participating in a line of questioning of defendant regarding his political activities, affiliations and religious beliefs.

‘ ‘ 7. The proceedings of the lower court were irregular and unauthorized by law and constituted abuse of discretion by which defendants appellants were denied a fair trial.

‘ ‘ 8. The findings of the lower court and its sentences and orders are not sustained by sufficient evidence, are contrary to law and'unauthorized by law.

“9. The court erred, to the prejudice of the defendant Kres, in finding that he told a falsehood in court and finding him guilty of summary contempt of court.

“10. For other errors appearing on the face of the record prejudicial to the rights of defendant, Kres.”

The first assignment of error will be overruled for the reason that in open court the defendant Kres, through his counsel, stated that during the course of the trial he was able to offer all the evidence there was available to him and he was therefore not prejudiced by the overruling of his request to make the allegations of the motion to show cause more definite and certain.

The fifth claim of error relates to the question of whether error was committed in requiring defendant Kres to give a security bond to abide the decree of the court, under the provisions of Section 11888, General Code; the prosecution of this contempt proceeding being under Sections 12137 to 12142, inclusive, General Code.

The right to invoke the remedial provisions of Sections 12137 to 12142, inclusive, General Code, for the violation of a temporary restraining order, was decided in the case of Sawbrook Steel Castings Co. v. Steel Workers of America, 148 Ohio St., 73, 73 N. E. (2d), 375. The court held in paragraph one of the syllabus:

“Sections 12137 and 12142, General Code, providing for the punishment of a person found guilty as for a contempt by ‘disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or an officer,’ authorize the assessment of a fine and the commitment of a person to jail who wilfully violates a temporary restraining order issued in a labor controversy upon written complaint and after hearing. ’ ’

Also, in the case of Pilliod v. Searles, 115 Ohio St., 694, 155 N. E., 231, the court in considering whether the provisions of Sections 11887 and 11888, General Code, could be enforced in conjunction with Sections 12137 to 12142, inclusive, General Code, said, at page 697:

“Sections 11887 and 11888, prescribing the penalty for disobeying an order of injunction, are not exclusive, .but are cumulative with Sections 12137,12142 and 12147, General Code, relating to contempt and the punishment therefor.”

The trial court in the case now before us did not assess a penalty against defendant Kres under Sections 11887 and 11888, General Code. The fine and jail sentences were imposed under the authority of Sections 12137 to 12142, General Code. The security bond ordered under the provisions of Section 11888, General Code, related solely to the defendant’s future conduct with respect to the temporary restraining order and was not in punishment for past violations. The provisions of Sections 11887 and 11888, authorizing the trial court to require a bond to keep the peace, are not without support in other provisions of the statutes of Ohio. Section 13451-11 provides:

“A person convicted of a misdemeanor may be required by the judge or magistrate to enter into a recognizance, with sufficient surety, in such sum as the judge or magistrate deems proper to keep the peace, and be of good behavior for such time, not exceeding two years, as the court directs. The court may order such person to stand committed until such order is complied with or he is discharged by law, but the court may discharge such person at any time on his own recognizance, or cancel such recognizance.”

The provisions of that section can be enforced only upon conviction of a misdemeanor, as for example, the violation of Section 12423, General Code, defining assault and battery. The remedies here provided are cumulative. The fine or jail sentence is imposed under Section 12423, General Code, as punishment for the violation of that section and the bond, if required, under Section 13451-11, General Code, seeking to preserve the peace in the future.

The trial court in the case now before us, therefore, acted within his statutory power. We find no error in requiring the defendant Kres to give a security bond under the provisions of Section 11888, General Code, after imposing a fine and sentence under Section 12142, General Code.

The defendant’s claim of error No. 3 cannot be sustained, because such sentences as were imposed were entirely within the provisions of the statutes relied upon as the basis for the prosecution.

Coming now to assignment of errors Nos. 2 and 8. There is no question in the record that the defendant Kres had personal knowledge of the court’s temporary-injunction. He was, by his own testimony, the local representative of Local 735, United Electrical Radio & Machine Workers of America, C. I. O. He was a party named personally as a defendant in the case.

The evidence discloses that on March 7, 1949, a strike had been called by Local 735 of its members employed at Fawick Airflex Company, Inc., which caused a work stoppage at its plant on Clinton road near the westerly boundary of the city of Cleveland. On March 9, 1949, a petition seeking an injunction and equitable relief was filed, and upon hearing of a motion for temporary injunction, seeking to limit the number of pickets, the same was granted and the order of the court granting such temporary injunction was set forth in a journal entry of March 12, which is set forth in part above.

The evidence shows that on the morning of March 23,1949, shortly before seven o’clock, a group of plaintiff’s employees desiring to return to work met on West 105th street between Fortune and Linnet avenues. While they were thus assembling, a number of strikers, probably more than twenty in number, came upon the scene for the unquestioned purpose of preventing the workers assembled from going to the plant of the plaintiff. Beer bottles and other missiles were thrown at the workers and considerable violence ensued. A similar or even more violent scene occurred a short time later as the workers attempted to enter the plant on Clinton avenue. The distance between the points where these conflicts took place was approximately one mile. Again, on the morning of March 24, a like scene took place in front of the plant of the plaintiff.

In all those conflicts the police of the city of Cleveland, the sheriff of Cuyahoga county and the officers from Brooklyn village had to be called to restore peace and quiet and protect the safety of the people desiring to return to work.

On the occasion of each of these disturbances the defendant Kres was near at hand. When the first attack took place on West 105th street, he, according to his own testimony, had just been or was then parked in his automobile across the street. At the time the workers were subjected to the danger of rocks, bolts and other missiles on March 23, at the entrance of the plant, defendant Kres was parked within 300 feet of plaintiff’s gate. He was also at the lean-to on the morning of March 24, when the disturbance took place.

All that took place was not an unorganized and sudden controversy. The effort of preventing the returning workers from getting to plaintiff’s plant in safety on all these occasions had every appearance of preplanned organization. In all, the circumstances developed by the evidence were clearly sufficient to show that Kres, the head officer of Local 735, not only was at hand to give directions and encouragement but did in fact direct the activities of. his fellow members in violation of the decree of the court.

The trial court’s conclusion that this defendant took part in the disturbance on West 105th street in the vicinity of Linnet avenue, on the morning of March 23, as found in paragraphs one and two of the court’s journal entry of April 27, is supported by sufficient evidence. The acts described in those two paragraphs, however, involve the same and one continuous act in violation of the court’s injunction, and is subject to only one fine of $500 and sentence of ten days imprisonment, and to that extent the judgment is modified and as modified will be affirmed.

Likewise, the trial court’s conclusion as to the disturbance at the entrance of plaintiff’s plant on March 24, as set forth in paragraphs 3, 4 and 5, as to defendant Kres, is sustained by sufficient evidence. The acts described in those three paragraphs, however, constitute but one continuous act in violation of the court’s injunction and are, therefore, subject to but one fine of $500 and ten days imprisonment, and to that extent the judgment is modified and as modified will be affirmed.

Coming now to the ninth assignment of error — the court entered a fine and sentence against the defendant Kres as and for a summary contempt of court “for telling a deliberate falsehood” in the presence of the court while testifying under oath. The judgment of guilty of a contempt committed in the presence of the court was upon the authority of Section 12136, General Code, which provides:

“A court, or judge at chambers, summarily may punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice. ’ ’

On direct examination, while testifying on his own behalf, the defendant Kres was asked whether he was present at any time when stones or missiles were thrown at the plaintiff’s workers or their automobiles as they were attempting to enter the plaintiff’s plant. His answer was, “I did not see anything.”

The record discloses that after such answer, the following took place:

“The Court: Wait a minute. Let him answer your question. He says he didn’t see any, but he doesn’t say whether he was present. Answer that question.

‘ ‘ Mr. Davis: Read it back, Mr. Pendell.

“The Court: Answer that question, sir.

“The Witness: Well, I didn’t — didn’t see any. I don’t know.

“The Court: The question is — were you present when they were thrown? What do you say to that?

“The Witness: Well, if I didn’t see that, I don’t know whether they were thrown or not, Your Honor.

“The Court: You wish to argue too sir? You will not get an argument out of me. Put the question back again and if that is the best answer you can give we will let it go at that. Read the question again.

“ (Question read by reporter)

‘ ‘ The Witness: I did not see any stones thrown.

‘ ‘ The Court: All right. I will consider that the best answer. ’ ’

The basis of the court’s holding defendant for contempt on this assignment of error is that the defendant’s answer as to not seeing any missiles thrown or as to not being present when such things took place was a “deliberate falsehood.” We have set forth above in some detail the substance of the evidence supporting the plaintiff’s claims as to the throwing of missiles on March 23, both on West 105th street and in front of plaintiff’s .plant, and again on March 24, at the plant entrance, and evidence tending to show that the defendant was near at hand on these occasions. There seems to be no dispute in the record that missiles were thrown, nor is there here presented any question that the throwing of such missiles was a pertinent question in this proceeding. It remains therefore to determine whether the answers of defendant Kres as above quoted were untruthfully given and that the court had “judicial knowledge” that such answers as given constituted perjury or were wilfully and knowingly false, and that they had the effect of obstructing the judicial process.

The right of a trial court to hold a witness for summary contempt for testifying falsely is considered in 9 Ohio Jurisprudence, 55, Section 27, as follows:

“* * *Of possible acts, few are so antagonistic to the objects of judicial administration as the intentional false swearing which seeks to baffle the search for truth, without which justice is impossible. Such swearing is a flagrant insult to the dignity of the court. In a disbarment proceedings before a federal court it was declared that perjury on the witness stand is a direct and criminal contempt of the court for which, under federal statutes, the offender may be summarily punished. To justify finding one guilty of contempt of court under Section 12136, General Code, for contumacious conduct while testifying as witness, giving untruthful, prevaricating and evasive testimony three elements are necessary: (1) That the alleged false answer had an obstructive effect; (2) the question must be pertinent to the issues; (3) judicial knowledge of the falsity of the testimony, i. e., a patent falsehood, as to which there can be but one opinion; but merely because the court chooses to believe one side in preference to the other, on the ground of greater probability, does not justify the court in holding the witness who supported the losing side guilty of contempt of court'. To justify such action by the court the falsity of the witness’s testimony, given in open court, must be a matter of judicial knowledge * *

By the greater weight of judicial authority, in order to hold a witness guilty of summary contempt for test ifying falsely, the court must have judicial knowledge that the witness’s sworn testimony was in fact false. A well founded belief of its untruthfulness is not sufficient. Perjury is a crime. Its punishment is provided by statute. Constitutional guarantees provide, among other things, for indictment by a grand jury and a public trial before a jury of the county in which the alleged act of perjury was committed. Likewise, because of the uncertainties which surround the ability of a witness to relate accurately events that have passed, either from faulty memory, inaccuracy of perception or otherwise, one charged with perjury cannot be convicted except upon the testimony of two witnesses or one witness and other corroborating circumstances. Section 13444-22, General Code.

In the case of Second National Bank, of Sandusky v. Becker, 62 Ohio St., 289, 56 N. E., 1025, paragraph two of the syllabus reads as follows:

“Section 5556, of the Revised Statutes, and the provisions therein referred to relating to proceedings in contempt, must be so construed, and restrained in their operation, as to avoid conflict with the inhibitions of the Constitution, and, in so far as they are in derogation of personal liberty, should receive a strict construction.”

It must further be considered that for the protection of the public the penalty upon conviction of the crime of perjury being a felony can result in confinement in the penitentiary and loss of the rights of citizenship until such rights are restored as provided by law. This is not to say that a court should not, where there is “judicial knowledge” of the falsity of the witness’s sworn testimony, exercise the judicial right to impose a penalty in contempt for obstructing the judicial process, when the testimony is material and the purpose of the witness was to obstruct justice.

The author in the annotation following the case of Riley v. Wallace, Judge (1920), 188 Ky., 47, 222 S. W., 1085, as reported in 11 A. L. R., 337, on page 352 said:

“In cases where the falsity of the testimony is denied, and is a matter merely of inference of opinion, the court, it seems, should not weigh the conflicting evidence in a contempt proceeding, but should leave the alleged contemner to be punished criminally, if guilty of perjury. In other words, the contemner is entitled to a jury trial if the facts are substantially disputed, and the court cannot take judicial knowledge that the testimony or allegation is false. This appears to be the doctrine sustained by the authorities, although in some of the bankruptcy cases the court seems to have gone a long way in contempt proceedings in weighing conflicting evidence.

“In Ex parte Hudgings [249 U. S., 378, 63 L. Ed., 656, 39 S. Ct., 337] (reported herewith) ante 333 the court said: ‘It is true that there are decided cases which treat perjury, without any other element, as adequate to sustain a punishment for contempt. But the mistake is, we think, evident, since it either overlooks or misconceives the essential characteristic of the obstructive tendency underlying the contempt power, or mistakenly attributes a necessarily inherent obstructive effect to false swearing. If the conception were true, it would follow that, when a court entertained the opinion that a witness was testifying untruthfully, the power would result to impose a punishment for contempt with the object or purpose of exacting from the witness a character of testimony which the court would deem to be truthful; and thus it would come to pass that a potentialty of oppression and wrong would result, and the freedom of the citizen, when called as a witness in a court, would be gravely imperiled. ’

“Courts will not ordinarily, when the facts are in dispute, it was said in Edwards v. Edwards (1917), 87 N. J. Eq., 546, 100 A., 608, punish perjury as a contempt, not because of lack of power, but because sound public policy requires that the offenders should be left to the criminal law.

“But circumstances may arise, it was said in Edwards v. Edwards (N. J.), supra, which would make it the duty of the court to punish perjury as a contempt, even though it is obliged to weigh evidence, and perjury committed by a petitioner wbo has induced the court to grant a decree of divorce was said to present a case of this class.”

The case annotated involved a divorce case in which it was claimed a divorce was granted on false testimony of Riley and another witness. Upon motion to vacate the decree, facts came to light that led the trial judge to conclude that the witness had testified falsely. In the third, fourth and fifth paragraphs of the headnotes it is held:

“3. A chancellor cannot proceed against witnesses for contempt in giving false testimony by information and rule unless he knows that such testimony is false.

“4. The court may take judicial notice of common knowledge.

“5. Judicial knowledge is the cognizance of certain facts which a judge, under rules of legal procedure or otherwise, may properly take or act upon without proof because already known to him, or that knowledge which the judge has, or is assumed to have, virtute officii. ’ ’

In the case of People v. Stone, 181 Ill. App., 475, Stone was cited for contempt of court for having testified falsely while under oath in the case of Greenfield v. Stone. The court in reviewing a judgment of guilty said, at page 477:

‘ ‘ The substance of the testimony of Stone alleged to. be false in the case on trial was that he had paid Greenfield a certain sum of money at a certain time and place. Presumably the court was not there nor in a position to know the actual fact. All it could know in the nature of things was that Stone gave one version of the matter under oath and Greenfield another. It might form a correct conclusion from the entire evidence as to which was telling the truth, but it would not know judicially which had falsified. If false swearing in the presence of the court constitutes direct contempt, then judicial knowledge of its falsity is, in our opinion, indispensable to the right of the court to exercise authority to commit therefor, and there is nothing in the record to disclose that the court knew or could know that the testimony was false. The case will, therefore, be reversed for want of sufficient showing of record to justify entry of the orders referred to.”

■ In Dangel on Contempt, 148, paragraph 304, the author, after citing authority that contempt may be committed in the presence of the court through wilful and intentional perjury which has the effect of obstructing the court in the performance of its duty (citing Blankenburg v. Commonwealth, 272 Mass., 25, 172 N. E., 209, where the court spent two weeks in trying the contemner’s false claim of being a daughter of a decedent whose estate was in process of administration), says:

“For perjury to constitute a direct contempt, the testimony must be of such a character that the judge before whom it is given can know judicially that it is false.” Citing People v. Hille, 192 Ill. App., 139; People v. Stone, supra; Riley v. Wallace, supra; Hegelaw v. State, 24 Ohio App., 103, 155 N. E., 620.

In 17 Corpus Juris Secundum, 31, Section 24, in the article on contempt, the author says in part:

“In determining whether perjury constitutes contempt the court must consider all the surrounding facts and circumstances, including the relation to the court of the one charged as contemner. Generally, perjury or false swearing by a witness is sufficient to constitute contempt, provided it obstructs the court in the performance of a judicial duty; and, as hereinafter discussed in Sec. 59, the fact it also constitutes a crime does not affect the court’s power to punish it as contempt, since perjury is an offense against the court as well as the state. However, there is authority to the contrary, and it has been held that perjury or false swearing by a witness is insufficient to justify a finding of direct contempt unless the court judicially knows that his evidence is false, and unless such evidence is pertinent to the issues and obstructive in its effect. While the courts will not ordinarily punish perjury as a contempt when the facts are in dispute, where the facts are admitted or demonstrated, the court has a clear duty to act; and circumstances may arise which make it the duty of the court to act, even though it is obliged to weigh the evidence.” (Citing People v. Tomlinson, 296 Ill. App., 609, 16 N. E. (2d), 940; Bowles v. United States, 44 F. (2d), 115; Edwards v. Edwards, 87 N. J. Eq., 546, 100 A., 108; Eykelborn v. People, 71 Colo., 318, 206 P., 388; State v. Meese, 200 Wis., 454, 229 N. W., 31.)

In the case of Hegelaw v. State, supra, this court held in the second paragraph of the syllabus:

“That court chooses to believe one side in preference to another, as to issue of fact on ground of greater probability, would not justify holding witness supporting losing side guilty of contempt of court which requires patent falsehood, not merely one based on opinion of court. ’ ’

And in the case of Juvenile Protective Assn. v. Roebling, 18 N. P. (N. S.), 385, 26 O. D. (N. P.), 219, the court, at page 389, referring to a Circuit Court pronouncement (unreported), said:

“It is the law, that a witness cannot be held for contempt where a witness in answer to a question says: ‘I don’t recollect,’ ‘I don’t remember,’ or ‘that’s all I know, ’ as in this case.

“Our Circuit Court here has so held, and Judge Frank M. Gorman, in quoting our Circuit Court in the case of Morrison & Snodgrass Co. v. Hazen, 10 N. P. (N. S.), 353 and 361, said: ‘It is true the Circuit Court has held that Hazen’s answer “I don’t recollect” or “I don’t remember” to questions which it was obvious he could have answered, did not constitute contempt. ’ ”

See, also, 73 A. L. R., 820, note (b).

In the light of the foregoing authorities we are constrained to the conclusion that two of the elements necessary to hold this defendant guilty of contempt committed in the presence of the court by “telling a deliberate falsehood” are missing — that is, judicial knowledge of the falsity of the testimony and that it had the effect of obstructing justice. There is, however, sufficient evidence from which the court could conclude that the witness was untruthful or at least evasive.

The claim of error under assignment of error No. 9 must be sustained.

The defendant’s sixth and seventh claims of error are concerned for the most part with the defendant’s cross-examination. The claims seem to be that such examination was unjust and beyond permissible limits. Cross-examination is permitted first to test the accuracy of a witness’s testimony given in chief and second to test his credibility.

An examination of the record demonstrates that the court held the defendant’s examination well within what is known as accepted practice. The objections particularly stressed by defendant are that he was ordered to answer the question whether h,e was a member of the Communist party. The defendant refused to answer the question and the events that followed are claimed to be prejudicial to the defendant’s rights. The defendant refused to answer the question upon claimed constitutional grounds. The court found that such refusal in direct violation of its order to answer the question was a contempt of court and made an entry finding him guilty of a summary contempt. This finding is the subject of a separate appeal and therefore need not be considered here. But the claim that his rights were thereby prejudiced is here asserted.

Gradually the fundamental principles of the Communist party have become matters of public, knowledge. Its social and political theories are vastly different from those understood and supported by the loyal citizens of our democracy. Our fundamental beliefs are held at naught and have no binding effect in directing its social relations. It has been demonstrated, times without number, in recent years in trials and hearings before constituted public committees and bodies, the fact that a member of the Communist party is not bound by his oath under any circumstances. They feel no binding force to the sanctity of an oath. Judges and courts will not shut their minds to truths that all others can see and understand. It therefore is clearly demonstrated that the question of membership in the Communist party is competent where there is some background for it to test the credibility of a witness. We find no merit to the defendant’s claim of errors Nos. 6 and 7.

The court finds no merit to all other claimed errors.

For the reasons herein stated the findings and judgment of the trial court are modified as to findings 1 and 2 and also as to 3, 4 and 5, and as thus modified as hereinbefore stated the judgment is affirmed. As to the order of contempt as to finding No. 6, defendant’s claim of error No. 9 is sustained and he is discharged therefrom.

Judgment modified and affirmed.

McNamee and Hurd, JJ., concur.

McNamee, J.

I concur in the judgment which in effect sustains the conviction of the defendant on two separate charges of contempt. While the defendant is not prejudiced, by this court’s action in modifying the trial court’s judgment by considering findings 1 and 2 as a single act and in so considering findings 3, 4 and 5,1 am of the opinion that this court’s judgment should be:

Judgment affirmed as to trial court’s findings of guilty Nos. 1 and 5, and reversed as to findings Nos. 2, 3, 4 and 6, because of lack of evidence to sustain same.


author: Wiseman, J.

text:
    Miami Conservancy District, Appellee, v. Bucher et al., Appellants.

      (No. 2039
    Decided December 22, 1949.)

      Mr. Alfred Swift Frank, for appellee.

      Miss Gertrude A. Bucher and Mr. R. A. Argahright, for appellants.
   Wiseman, J.

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court of Montgomery County rendered in favor of the plaintiff in an action brought by the Miami Conservancy District against the two owners of four parcels of real estate situated in the city of Dayton to enforce the collection of conservancy assessments levied against the property.

In 1917 a basic levy of 36 per cent of the appraised benefits and in 1920 a basic levy of 14 per cent of the appraised benefits were made by the board of directors of the district, under the provisions of Section 6828-45, General Code (104 Ohio Laws, 37). No question is raised with respect to the principal amount of the basic levies. The difference in the amount elaimed and the amount admitted by the defendants to be due is represented by the interest charge. The question in dispute is whether the interest charge on the unpaid installments was properly levied under the provisions of the Conservancy Act.

The narrow question for the court to determine is whether, under the provisions of Section 6828-45, General Code (104 Ohio Laws, 37), the interest charge should be reduced to dollars and cents and included in the principal amount of the assessment. This section in part provided:

“The said assessment shall be apportioned to and levied on each tract of land or other property in said district in proportion to the benefits appraised, and not in excess thereof, and in case bonds are issued as provided herein and hereafter, then the amount of interest, which will accrue on such bonds, as estimated by said board of directors, shall be included in and added to the said assessment * * V’ (Emphasis ours.)

The pertinent part of the record of the board in making the assessment is as follows:

‘ ‘ There shall be and there is hereby levied upon the real property * * * the sum of twenty-seven million, eight hundred four thousand, four hundred eighty and 64/100 dollars ($27,804,490.64), together with interest on such portion thereof as may not be paid in cash as hereinafter provided at a rate not to exceed six per cent (6%) per annum as provided by law.”

The board took proper action in complying with the provisions of Section 6828-46, General Code (104 Ohio Laws, 38), wherein it was provided that those who may desire to do so may pay “the full amount of the assessment less any amount added thereto to meet interest. ” The defendants herein failed to make payment under this provision of the act. Section 6828-46, General Code (104 Ohio Laws, 38), further provided that “any property owner failing to pay assessments in full as provided for herein shall be deemed to have consented to the issuance of bonds as provided for in this act, and to payment of interest thereon.” The bonds were thereafter issued in anticipation of the collection of the unpaid installments of the assessment. A bonding resolution was passed by the board under the provisions of Section 6828-46, General Code (104 Ohio Laws, 38), which in part provided:

“* * # thereupon the hoard of directors shall pass and spread upon the records a bonding resolution in which shall be stated the amount of the assessment, and the amount thereof paid as aforesaid, and thereupon the board shall in the same resolution apportion the uncollected assessment into installments or levies. provide for the collection of interest upon the unpaid installments * * (Emphasis ours.)

Thereafter the board made annual levies as provided in Section 6828-50, General Code (104 Ohio Laws, 43), which levies included the interest charge. Thirteen annual levies were paid on three parcels and 14 annual levies were paid on one parcel, but nothing more. For a number of years the defendants have been in default for payment of the assessments.

The defendants contend that the board, in making the basic levy in 1917, should have capitalized the interest charge and added it to the principal sum of $27,804,480.64, thereby increasing the basic levy to that extent, rather than making a basic levy in the amount stated “together with interest.’’ A similar procedure was followed in making the 1920 basic levy and the same contention is made. Counsel for the plaintiff contends that at the time the basic levy was made it would have been impossible for the board to have determined the amount of the interest charge, for the reasons, first, that it did not know at that time how many property owners would pay the assessment in full within the 30-day period after notice was given of the assessment and, second, that the board at that point in the proceedings could not determine the amount of the interest rate on the bonds which would be issued in anticipation of the collection of future assessments.

The question for determination requires an interpretation of that part of Section 6828-45, General Code (104 Ohio Laws, 37), which provided:

<(# * * jn case bonds are issued as provided herein and hereafter, then the amount of interest, which will accrue on such bonds, as estimated by said board of directors, shall he included in and added to the said assessment * * (Emphasis ours.)

This section of the Conservancy Act has never been interpreted by the courts of this state. The states of New Mexico and Colorado have conservancy acts, modeled after the Conservancy Act of Ohio, which contain similar provisions. However, with respect to small tracts of land, the New’Mexico act provides that the installments of interest shall be capitalized and added to the principal of the assessment. The New Mexico act makes a distinction between the two methods in dealing with the interest charge. One provision requires the board to capitalize the interest charge and add it to the principal of the assessment; the other, like the Ohio act, provides for estimating the interest charge and including it in and adding it to the assessment. The contention made by the defendants herein would necessitate an interpretation of the Ohio act which would require the board to capitalize the interest charge and add it to and make it a part of the principal amount of the assessment. We do not believe that this was the intention of the General Assembly in enacting this section. The construction of this provision of the statute has not been before the courts of New Mexico or Colorado. However, in the case of Gutierrez v. Middle Rio Grande Conservancy District, 34 N. M., 346, 282 P., 1, 70 A. L. R., 1261, the court, in discussing the nature of the interest charge, stated:

“Interest on deferred payments is not a part of the assessment nor does it ever become such; it is the carrying charge on the unpaid portion of the assessment ; it does not go into the improvement nor change its costs. If the property owners all pay their assessments within the 60-day period, then the conservancy district need issue no bonds, but, if a portion elect to pay in installments, then the district must issue and sell bonds sufficient to enable it to carry out the project. The interest paid on the bonds certainly is not a part of the assessment; it does not go into nor become a part of the cost of the improvements. The interest collected from those who pay in installments offsets the interest which they have caused the district to pay on its bonds.”

The issue raised in that case was not the same as is presented here. However, the statement of the court relative to the nature of the interest charge, though obiter dictum, is pertinent in determining the question presented here. The court in that case stated that the interest charge is not a part of the assessment. If the interest charge is not a part of the assessment, then there is little support for the contention of the defendants that the interest charge should become a part of the principal amount of the assessment. The action of the board in the instant case was a substantial compliance with the provisions of the act and the assessment was legally made even though the interest charge was not capitalized and added to and included in the principal sum of the assessment.

We must observe and give effect to the provisions of Section 6828-41, General Code (104 Ohio Laws, 34), which in part provided:

“No fault in any notice or other proceedings shall affect the validity of any proceeding under this act except to the extent to which it can be shown that such fault resulted in a material denial of justice to the property owner complaining of such fault. ’ ’

If it be conceded that there was an irregularity in the proceedings in making the assessment, it cannot be successfully contended that such irregularity re-suited in a material denial of justice to the defendants herein.

It has been held as a rule of statutory construction that it is the duty of courts in the interpretation of statutes, unless restrained by the letter thereof, to adopt that view which will avoid absurd consequences, injustice or great inconvenience, as none of these can be presumed to have been within the legislative intent. Moore v. Given, 39 Ohio St., 661; Rill v. Micham, 116 Ohio St., 549, 553, 157 N. E., 13; Prosen v. Duffy, 152 Ohio St., 139, 87 N. E. (2d), 342; 37 Ohio Jurisprudence, 634, 643, 644, Sections 348, 352, 353; 50 American Jurisprudence, 365, Section 360. In accord with the principles of statutory interpretation just stated, we are of the opinion that it was not the legislative intent to require the board to capitalize the interest charge and include it in the. principal amount of the assessment.

It is well established as a legal proposition that administrative interpretation of law, although not conclusive, is, if long continued, to be given great weight and will not be disregarded or set aside unless judicial construction makes it imperative to do so. In State v. Ridgway, 73 Ohio St., 31, 76 N. E., 95, the court made this statement:

‘‘A long-established and universal practice is an authority of but little, if any, less weight than an adjudication to the. same effect. ’ ’

See, also, State, ex rel. Automobile Machine Co., v. Brown, Secy, of State, 121 Ohio St., 73, 166 N. E., 903.

In Norwegian Nitrogen Products Co. v. United States, 288 U. S., 294, 77 L. Ed., 796, 53 S. Ct., 350, the court, speaking through Justice Cardozo, held:

‘ ‘ True indeed it is that administrative practice does not avail to overcome a statute so plain in its commands as to leave nothing for construction. True it also is that administrative practice, consistent and generally unchallenged, will not be overturned except for very cogent reasons if the.scope of the command is indefinite and doubtful. United States v. Moore, 95 U. S., 760, 763; Logan v. Davis, 233 U. S., 613, 627; Brewster v. Gage, 280 U. S., 327, 336; Fawcus Machine Co. v. United States, 282 U. S., 375; Interstate Commerce Commn. v. N. Y., N. H. & H. Rd. Co., 287 U. S., 178. The practice has peculiar weight when it involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new. Fawcus Machine Co. v. United States, supra."

The words of Justice Cardozo have a peculiar application to the situation presented in this case. The board, in the early years of its existence, had the benefit of and followed the advice of learned legal counsel, who were responsible for preparing the bill which was passed as the Conservancy Act of Ohio. The board of the Miami Conservancy District, since 1917, has given the same construction to the statute under consideration as has been given by this court.

Finally, the defendants contend that the plaintiffs action is barred by the statute of limitations and cite in support thereof Section 6828-54, General Code (104-Ohio Laws, 46). The defense of the statute of limitations is a special one and if not pleaded it is deemed waived. Towsley v. Moore, 30 Ohio St., 184, 27 Am Rep., 434; Hower v. Clerkin, 38 Ohio Law Abs., 509, 50 N. E., 902; 25 Ohio Jurisprudence, 637, 614. If Section 6828-54, General Code (104 Ohio Laws, 46), was a statute of limitations, which we do not concede and do not decide, it was not available to the defendants since it was not pleaded as a special defense. Judgment is awarded for the plaintiff.

Judgment for plavntiff.

Miller, P. J., and Hornbeck, J., concur.


author: Miller, P. J.

text:
    Martin, d. b. a. M. & M. Auto Sales, Appellant, v. Coffman, d. b. a. Jim’s Motor Sales, Appellee.
    (No. 2067
    Decided December 2, 1949.)

      Mr. A. W. Schulman, for appellant.

      Messrs. Jacobson <& Durst, for appellee.
   Miller, P. J.

This is an appeal on questions of law from a judgment of the Municipal Court of Dayton. The action was one for damages arising out of the purchase of a 1938 Buick sedan by the plaintiff, appellant, from the defendant, appellee. The parties will hereinafter be referred to as plaintiff and defendant.

The record discloses that on September 8, 1948, the defendant sold a Buick automobile to the plaintiff for the sum of $340. The plaintiff was a used-car dealer who made the purchase with the intention of making a resale. After making repairs to the extent of approximately $100, the car was sold by the plaintiff for the sum of $780 to one Jack Cales, part of which was paid in cash and the balance was financed through the General Finance Corporation. Soon after the purchase Cales became unemployed and as a result no payments were made on the note given for the balance of the purchase price. The car was repossessed by the finance company, which in turn called upon the plaintiff to pay the amount of the note as it had been endorsed by him with recourse. This was done. The car was redelivered to the plaintiff and a certificate of title was reissued to him. It was then discovered that both the engine number and serial number in the certificate of title differed from those on the automobile. Upon examination it was found that the certificate of title transferred by the defendant to the plaintiff was different in the same respects. The difference in the engine numbers was several million, but there was a similarity in the serial number, the only difference being an omission of the digit “1” from all the certificates of title. After negotiating for some time with the defendant, endeavoring to get a bill of sale covering title to the automobile conveyed, and the defendant either refusing or not being able to deliver such a certificate of title, the plaintiff tendered the car back to the defendant and demanded a refund of the purchase price plus the amount of the repairs placed upon it. This being refused, action was brought seeking damages in the amount of $644.72, which was the balance of the purchase price from Jack Cales and which the plaintiff had to repay to the finance company. The trial court found that there was nothing due the plaintiff and the appeal is from that judgment.

The plaintiff relies upon the theory of a breach of an implied warranty, citing Section 8393, General Code, which provides that in a contract to sell, or sale, unless the contrary intention appears, there is an implied warranty on the part of the seller that he has a right to sell the goods. Does the record show that the defendant had a right to sell the Buick automobile which is the subject of this action? He did only upon the condition that he was the owner. Under Section 6290-4,. General Code, there is only one way to prove ownership of an automobile and that is by producing a certificate of title. Mielke v. Leeberson, 150 Ohio St., 528, 83 N. E. (2d), 209, 7 A. L. R. (2d), 1342. The certificate of title tendered by this defendant was therefore no evidence of ownership of the car being sold. Section 6290-13, General Code, requires that the certificate of title show the serial number and motor number of the tear. Counsel for the defendant urge that since there has been no one to assert a claim of title superior to that of the plaintiff, he has no right to maintain the action, and that such a claim constitutes a condition precedent to the right to sue. We do not consider such to be the law of this state. This question has been passed upon in the case of Kwiatkowski v. Hoislbauer, 13 Ohio App., 202. At page 204 the court said:

“Under Section 8393, General Code, there is an implied warranty on the part of the seller that he has a right to sell the goods, and there is a further implied warranty that the buyer, should have and enjoy quiet possession.of the goods as against any lawful claims existing at the time of the sale. On principle, therefore, it appears that when defendant sold the goods, there was an immediate breach of the implied warranty of right to sell. If there was a breach of warranty by the seller, the Sales Act, Section 8449, General Code, authorizes the buyer at his election to rescind the sale, offer to return the goods to the seller and recover any part of the price which has been paid. The seats had an approximate value of $900 and constituted a substantial part of the goods sold.

i i * # #

‘£ Must there be a claim or eviction before the buyer can get redress? As to sales of goods the authorities at common law are in some conflict as to this question. The effect of the provision of the Sales Act, Section 8449, General Code, would seem to give the buyer of chattels the right to proceed immediately, though his possession had not been disturbed. (See Williston on Sales, Section 221.) By pursuing this course, the buyer assumes the burden of establishing the infirmity of the seller’s title. Jordan v. Van Duzee, 139 Minn., 103, 107.”

It will be noted that that case places the burden of establishing the infirmity of the seller’s title upon the purchaser. The plaintiff fully met this burden when he proved that the defendant’s only evidence of ownership was not applicable to the automobile in question.

Having found that there was a breach of warranty, we must next determine the plaintiff’s rights upon such a breach. These are defined under Section 8449, General Code:

“(1) "When there is a breach of warranty by the seller, the buyer may, at his election—

i Í * # *

“(b) Accept or keep the goods and maintain an action against the seller for damages for the breach of warranty;

a* * *

“(6) The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events from the breach of warranty.” '

Since the petition does not ask that the contract be rescinded, although it does allege an offer to return the car, which offer was refused, and the relief sought is only damages, it appears that the plaintiff elects to keep the property and maintain his action for damages under paragraph (1) (b) of Section 8449, supra. Even though the plaintiff had failed in his proof of a breach of an implied warranty, which fact we do not admit, still under Section 8447, General Code, the plaintiff’s right of action would be maintainable, as the right of ownership to the automobile never passed to the plaintiff.

Section 8447, General Code, provides in part:

“ (1) When the property in the goods has not passed to the buyer, and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain an action against the seller for damages for nondelivery.

“(2) The measure of damages is the loss directly and naturally resulting, in the ordinary course of events, from the seller’s breach of contract.”

The defendant has cited Section 6290-10, General Code, contending that under that section the plaintiff can obtain a proper certificate of title. We do not think the evidence supports this conclusion as there is no evidence in the record that the engine in the car had ever been replaced. That such was done is quite probable, but there are no facts in the record to support the conclusion. The section of the Code cited is applicable only when the engine of an automobile has been replaced.

We, therefore, hold that the trial court erred in rendering a judgment for the defendant. The judgment is reversed and the cause is ordered remanded to the trial court for further proceedings according to law.

Judgment reversed.

Hornbeck, J., concurs.

Wiseman, J., concurs in the judgment.


author: Matthews, J. Ross, P. J.,

text:
    Kauscher et al., Appellants, v. The National Builders & Realtors, Inc., et al., Appellees.
    (No. 7133
    Decided October 10, 1949.)

      Mr. Anthony P. Gonlon and Mr. John A. Thorburn, for appellants.

      Mr. Cedric Vogel and Mr. J. W. Taylor, for appellees Gaither N. Fitzgerald and Mabel Fitzgerald.
   Matthews, J.

Thé plaintiffs-appellants made a written offer on a printed form to buy certain real estate, in which it was stipulated that “occupancy to be given on or before date deed is delivered.” At the same time, they deposited $300 as earnest money with the realtor, who negotiated the sale and who prepared the offer. The defendants-appellees, to whom the offer was made, struck out or cancelled the words, “on or before,” signed the printed acceptance immediately below the offerors’ signatures and returned it to them. Five days after receipt of the acceptance the plaintiffs noticed this deletion of the words, “on or before,” from their offer and notified the defendants that they did not consider themselves bound.

This action was instituted in the Municipal Court of Cincinnati to recover the $300 deposited with the agent as earnest money. The agent interpleaded the defendants. The Municipal Court rendered judgment for the plaintiffs. On appeal to the Common Pleas Court, that court reversed the judgment and rendered final judgment for the defendants. It is from this latter judgment that this appeal was taken.

The defendant testified that he had the words, “on or before, ’ ’ deleted ‘ ‘ for the reason that he had interpreted those words as meaning that possession of the property might be delivered before the deed was given,” which we construe as meaning that he intended thereby to remove all hope, if any existed, that possession would be yielded before the delivery of the deed.

The plaintiffs base their right to a recovery of the earnest money solely on the ground that the deletion of “on or before” from their offer was a material alteration, and that, therefore, the minds of the parties had not met and no contract was effected.

There is no doubt that there must be a meeting of the minds in order to form a contract, but that does not mean that the offeree must parrot the words of the offeror. It does mean that the parties must have the same contractual intent, as disclosed by the outward manifestation. Their minds must meet on the contractual obligation created.

Now did the deletion of the phrase, “on or before,” change the meaning of the plaintiffs’ offer? Its inclusion would permit the defendants the full time up to the designated date in which to deliver possession. The plaintiffs could not compel them to deliver at an earlier date. They would be under no obligation to deliver earlier.

After the deletion, the defendants were bound to deliver on the date the deed was delivered. That was the same obligation which would have been created by the inclusion of the phrase, “on or before.” With or without the words, the defendants could have delivered earlier, but were under no obligation so to do.

We are told that the Common Pleas Court in finding for the defendants relied principally upon Deakin v. Underwood, 37 Minn., 98, 33 N. W., 318. In that case an agent was authorized to sell real estate, “one-half payable on or before one year.” The court held that this authorized the agent to sell, “one-half payable in one year,” and the court said: “The terms of the contract, as executed, so far as they affect the rights of defendant, were in legal effect the same as those authorized. By each he would be entitled to demand payment in one year, and not before.”

Counsel seek to avoid the force of this decision and rely on Jackson v. Badger, 35 Minn., 52, 26 N. W., 908. Those cases are not in conflict. All the latter case holds is that where an agent is authorized to provide for payment three years after date, no authority is conferred to provide for payment on or before three years after date.

We are of opinion that the Court of Common Pleas correctly held that the deletion of the phrase, “on or before, ’ ’ was not a material alteration and, therefore, did not prevent the minds of the parties from meeting, and that the plaintiffs were not justified in repudiating the contract created by the offer and acceptance.

For these reasons, the judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

Hildebrant and Matthews, JJ., concur.

Ross, P. J.,

dissenting. I dissent from the conclusion of the majority of the court, for the reason that the prospective purchaser made a definite offer to purchase. There was no occasion for any modification of a categorical acceptance by the seller. However, he deemed it important to modify a mere acceptance by deleting from the offer the words, “on or before.”

The conception of parties to a contract has, at least, some bearing upon the intent of the parties. It is manifest the prospective purchaser wanted the words deleted left in the offer, and it is just as obvious the seller wanted them out.

The offer was never accepted by the seller, but, on the other hand, a counter-offer, in effect, was made by the seller, which the prospective purchaser hastened to tell the seller was not considered an acceptance.

In my opinion, the judgment of the Municipal Court in favor of the plaintiff purchaser for the amount of his deposit should be affirmed, after reversal of the judgment of the Common Pleas Court, reversing such judgment of the Municipal Court.


author: Fess, J.

text:
    McDowell, Appellant, v. Hannefeld, Appellee.
    (No. 4430
    Decided February 6, 1950.)

      Mrs. Eva Epstein Shaw, for appellant.

      Mr. Marvyn R. Lachin, for appellee.
   Fess, J.

This is an appeal on questions of law from an order of the Common Pleas Court discharging an attachment.' Plaintiff-appellant filed her petition for alienation of affections of her husband against the defendant and prayed judgment in the sum of $50,000. Plaintiff also filed her affidavit for attachment, setting forth that the defendant was not a resident of Ohio and that the defendant was about to convert her property into money for the purpose of placing it beyond reach of her creditors. Certain real estate of the defendant was attached pursuant to the order of attachment and was appraised at $4,600.

Defendant under special appearance moved to discharge the attachment for the reason that the affidavit, considered in the light of the petition, affirmatively disclosed that the action was not for a claim, debt, or demand arising upon contract, judgment or decree, for causing damage to property or death, or personal injury by negligent or wrongful act.

Prior to hearing on the motion to discharge, plaintiff- filed her bond in the sum of $14,000. At the hearing upon the motion to discharge, the court had before it the petition and affidavit for attachment, but no testimony was taken and the motion was granted upon the papers and the statements of counsel. Although plaintiff announced she intended to appeal and requested the court to fix the amount of the appeal bond, no time within which to take an appeal or the amount, of an appeal bond was fixed. Notice of appeal on questions of law was filed without any appeal bond.

Defendant moves to dismiss the appeal on the following grounds:.

1. The journal entry fails to disclose that there were exceptions taken as provided by Section 11865, General Code.

2. The order appealed from is not a final order.

3. Only one bond was given by the plaintiff, which was for the purpose of the attachment and not for the appeal.

1. Section 11865, General Code, provides:

“When an order discharging an order of attachment is made, and a party affected thereby excepts thereto, the court or judge shall fix the number of days, not to exceed thirty, in which such party may file his appeal, and during which it shall be filed and the attached property held by the sheriff or other officer. ’ ’

Section 11866, General Code, provides:

‘ ‘ The party who appeals must give a bond to the adverse party, with surety to be approved by the clerk of the Court of Appeals, in double the amount of the appraised value of the property attached, conditioned to pay such adverse party all damages sustained by him in consequence of filing such appeal in the event of the discharge of the order of attachment by the court in which it is filed, because the order was wrongfully obtained. When the appeal is filed, and a bond given, the sheriff or other officer, shall continue to hold the property attached, subject to the further order of the court. ’ ’

These sections were re-enacted in substantially the same phraseology as parts of the “act to establish a simplified [sic] method of appellate review” (116 Ohio Laws, 104) which act also contained the then new Section 11560 dispensing with the necessity of formal exceptions.

The first sentence of Section 11560, General Code, provides:

“An exception shall not be necessary, at any stage or step of the case or matter, to lay a foundation for review whenever a matter has been called to the attention of the court by objection, motion, or otherwise and the court has ruled thereon. ’ ’

Even before the enactment of the present provision of Section 11560, General Code, it was not always necessary to take exceptions to a formal order or judgment. Franklin Bank of Cincinnati v. Exrs. of Buckingham, 12 Ohio, 482; Justice v. Lowe, 26 Ohio St., 372.

2. An order discharging an attachment is an order affecting a substantial right made in a special proceeding and is a final order. Section 12223-2, General Code. Furthermore, Section 11864, General Code, specifically authorizes an appeal by a party affected by an order discharging or refusing to discharge an order of attachment.

3. Section 12223-3, General Code, provides that every final order, judgment or decree of a court and, when provided by law, the final order of any administrative officer, tribunal or commission may be reviewed as hereinafter provided, unless otherwise provided by law, etc. Under Section 12223-4, General Code, an appeal is deemed perfected when written notice of appeal is filed with the lower court, but under Section 12223-6, General Code, no appeal shall be effective on questions of law and fact unless and until the order appealed from is superseded by a bond. The phrase in Section 12223-3, “unless otherwise provided by law,” might be construed as applying only to appeals from administrative bodies, but in any event we do not believe that a different method of appeal is provided by Sections 11865 and 11866.

Section 11864, General Code, authorizes an appeal on questions of law and specifically provides that the action may proceed as if no appeal had been taken. However, Section 11865, General Code, provides that when a party affected by an order discharging an attachment excepts thereto, the court shall fix the number of days, not to exceed 30, in which such party may file his appeal, and during which time the attached property shall be held by the attaching officer. Section 11866, General Code, requires the party who appeals to give a bond to the adverse party, with surety to be approved by the clerk of the Court of Appeals, in double the amount of the appraised value of the property attached, conditioned to pay the adverse party damages sustained in consequence of the filing of the appeal in the event of the discharge of the order because wrongfully obtained. Upon the filing of the appeal and giving the bond, the sheriff continues to hold the property attached. It will be noted that the bond described by Section 11866, General Code, is not essentially an appeal bond but is analogous to a supersedeas bond. Since the clerk of the Court of Appeals approves the surety on the bond, apparently the bond is filed in the Court of Appeals and not in the trial court as provided for appeals on questions of law and fact.

In the instant case, plaintiff indicated to the court her intention to appeal and requested the court to fix the amount of the bond. The announcement of the intention to appeal was sufficient to lay a foundation for review, but, since the amount of the bond is fixed by statute and is to be approved as to its surety by the clerk of the Court of Appeals, it was unnecessary for the trial court to fix the amount of the bond. Had plaintiff desired to maintain her attachment, she should have requested the court to fix the time for filing her appeal and have then given the bond required by Section 11866, General Code. Although under the terms of the statute the court must fix the time for appeal, in the absence of a request, objection to a failure to do so may be regarded as waived on the part of the plaintiff.

As we construe Sections 11864, 11865 and 11866, General Code, the giving of the bond referred to in Section 11866 is not a prerequisite to an appeal on questions of law. Ahlgrim & Son v. Wolf, 65 Ohio App., 172, 29 N. E. (2d), 436; Sibley v. Oil Co., 12 W. L. B., 308, 9 Dec. Rep., 399; Martin v. Gunnison, 14 C. D., 679.

On the merits of the appeal, at first blush it would seem that an action for alienation of affections is not a claim ‘ ‘ for personal injury by negligent or wrongful act. ’ ’ One would infer that the General Assembly meant claims commonly known as personal or bodily injury suits. However, the Supreme Court, in Smith v. Buck, 119 Ohio St., 101, 162 N. E., 382, held that the words, “personal injury,” as used in Section 11819, General Code, denote an injury either to the physical body of a person or to the reputation of a person, or both, and that personal injury by wrongful act comprehends injury by libel or slander. The term, “personal injury,” is broader than the term, “bodily injury.” Kraut v. Cleveland Ry. Co., 132 Ohio St., 125, 5 N. E. (2d), 324. It is said that the statutes relating to attachments are to be construed liberally for the benefit of the attaching party. Northwestern Yeast Co. v. Broutin, 133 F. (2d), 628. Actions for smart money, such as alienation of affections, are not particular favorites of the law but there is a well recognized rule that the alienation of the affections of a spouse is an injury to a personal right. 27 American Jurisprudence, 125; Exline v. Sargent, 13 C. D., 180, 3 C. C. (N. S.), 66; McGrath v. McGrath, 48 Ohio App., 434, 194 N. E., 43. Cf. Nuzzi v. U. S. Casualty Co., 121 N. J. Law, 249, 1 A. (2d), 890.

In her affidavit, plaintiff averred that the defendant was a nonresident and that defendant was about to convert her property. Section 11819, General Code, authorizes an attachment against a nonresident, but in the last paragraph thereof limits it to certain claims including a claim for personal injury by negligent or wrongful act. The order was issued as of course upon the ground of nonresidence under Section 11820, General Code. In order for it to be issued on the ground of conversion, it was necessary for plaintiff to file a bond of $100,000 under Section 11820, General Code, and plaintiff’s bond in the sum of $14,000 was wholly insufficient for such purpose. The motion to discharge was upon the sole ground that the action was not one within the purport of the last paragraph of Section 11819. The nonresidence was not questioned and in the absence of evidence to the contrary the averment in the affidavit must be regarded as true. Since the attachment was issued upon valid grounds without an attachment bond, the order of the court discharging same was error prejudicial to the plaintiff, and the judgment is reversed and the cause remanded for further proceedings.

During argument, it was revealed that subsequent to the discharge of the attachment the real property attached was sold by defendant. We are therefore aware that several disturbing questions will arise on remand of the cause, but since they are not before this court on this appeal, this court should not attempt to pass thereon at this time.

Judgment reversed and cause remanded.

Conn and Carpenter, JJ., concur.

      In the opinion in Farrell v. Brazee, 9 Ohio App., 218, 220, the court misconstrued the decision in Martin v. Gunnison, 14 C. D., 679, but the statement is not carried into the syllabus.


text:
    Elsen et al., Appellees, v. Hughes et al., Appellants.
    (No. 7103
    Decided June 20, 1949.)

      Messrs. Hoover, Beall-, Whitman & Eichel, for appellees.

      Messrs. Vest é Vest and Messrs. Barnhorn S Barn-horn, for appellants.
   By the Court.

This is an appeal on questions of law from a judgment quieting the plaintiffs’ title to certain real estate and removing the cloud thereon resulting from the assertion of title thereto by defendants.

The judgment is affirmed for the following reasons:

(1) The plaintiffs and their predecessors in title have been in open, uninterrupted possession of this real estate under color and claim of absolute title in fee simple for more than 40 years and, as a result, the enforcement of whatever title the defendants might have had is barred by the statute of limitations.

(2) It is conceded that Hester P. Waterhouse was the owner of the title to this real estate at the time of her death. The plaintiffs assert title by mesne conveyances from one of her daughters. After the death of Mary P. Waterhouse, a paper writing purporting to be her last will was admitted to probate. Thereafter, an action was duly instituted to contest the paper writing as her will, and, in due course, a judgment was entered declaring the paper writing not to be her last will. In this paper writing, Hester P. Waterhouse purported to give to each of her three daughters a one-eighth share of her estate, but placed such shares in the hands of a trustee who was to pay the net income to each of the daughters during the life of her respective husband, and, should any daughter survive her husband, her one-eighth would be her absolute property. By such purported will, if any daughter should not survive her husband and leave no issue, the daughter was given power to dispose by will of the one-eighth part and the other seven parts were to go to her surviving brothers and sisters and their issue per stirpes. The defendants are grandchildren of Hester P. Waterhouse, and, if the paper writing is, as to them, her last will, such will would have conferred title upon the named trustee in trust for the daughters during the lives of their respective husbands, and then in trust for the defendants during their minority.

The defendants herein were not named as defendants in the action to contest the will. At that time they were under 21 years of age. The trustee named in the paper writing qualified as trustee of two shares, the court appointed a trustee of the other shares, and both trustees were parties tp the will contest.

The contention of the defendants is that the failure to join them as defendants in the will contest renders the judgment setting aside the will void, and that, by reason thereof, they now take under said probated will, notwithstanding the judgment declaring it not to be the last will.

The contention of the plaintiffs is that the trustees, who were parties to the will contest, were the owners of the legal title of the shares of which the daughters were the immediate beneficiaries; that the defendants were the remote and contingent beneficiaries; that the trustee was the only necessary party to represent such interest in the will contest; and that it was not necessary to join the beneficiaries, immediate or remote, of such trust.

It is expressly provided by Section 11244, General Code, that a trustee of an express trust may bring an action without joining with him the person for whose benefit it is prosecuted. We find no statutory provision as to defending actions involving a trust estate, but it seems to us that the reason for the rule authorizing the trustee to prosecute an action applies with equal force to defending actions. And that seems to be the rule in the absence of any statute.

In 1 Perry on Trusts (7 Ed.), 567, 568, the author says:

“It is the duty of the trustee to defend and protect the title to the trust estate; and, as the legal title is in him, he alone can sue and be sued in a court of law, the cestui que trust, the absolute owner of the estate in equity, is regarded in law as a stranger. The rule is carried to the extent that the grantee of the trustee can alone maintain an action upon the legal title, although the conveyance to him was a breach of the trust. To protect himself, the trustee must defend the title if he is sued. ’ ’

Although it may be that the defendants might have been proper parties to the will contest, they were not necessary parties, and their absence did not prevent the court from entertaining the will contest.

The judgment setting aside the will was within the jurisdiction of the court and cannot be collaterally attacked. It may be, also, that the trustee did not properly defend the action. The remedy of the cestuis que trustent for any such dereliction would be against the trustee, and not by attacking the title of transferees who took title in reliance upon the validity of the judgment.

Judgment affirmed.

Ross, P. .1., Hildebrawt and Matthews, JJ., concur.