author: WALTERS, J.

text:
    PLEADING — LIMITATION OF ACTIONS — WAIVER.
    [Scioto (4th) Circuit Court,
    June, 1905.]
    Junes, Walters and Cherrington, JJ.
    William Kirchner v. Lloyd E. Smith.
    1. Amended Petition States Same Cause as Original, if Same Evidence and Measure of Damages Applicable and Recovery on One Operates as Bab.
    The three- criteria by which it will he determined whether or not án amended petition states a different cause of action than that alleged in the original petition, are: First, whether the same evidence will support both pleadings; second, whether the same measure of damages Is applicable in both cases; and third, whether a recovery on the amended pleading will operate to bar a recovery upon the other.
    2. Party Asking, not for Damages, but for Funds Owing to Him, Sues ex CONTRACTU, EVEN THOUGH LANGUAGE OF PETITION IMPORTS A TORT.
    A party having a right uf action on which he might have sued either ear contractu or ex delicto, will be held to have waived the tort and sued on the contract, if he asks in his petition not for damages, but for funds actually in the hands Uf the defendant and owing to him, even though the language of the pleadings is such as might be employed in describing the tort.
    3. Limitations Runs in Six Years on Suit Asking fob Judgment fob One-half of Purchase Money Converted by Defendant.
    A petition averring the sale by defendant uf certain property owned in common by him and the plaintiff and alleging further that such defendant wrongfully and unlawfully converted one-half of the proceeds belonging to the plaintiff to his own use, but which does not ask for damages' but seeks to recover one-half of the • proceeds of such -sale,, states a cause of action ex contractu, and suit thereon will be barred in six yéars from the time it accrued.
    [Syllabus approved by the court.]
    ERROR to Scioto common pleas court.
    Holcomb & Miller and Pugh & Pugh, for plaintiff in error:
    Plaintiff had the right to waive the tort and sue on an implied contract, and in fact did, by his petition and amended petition, elect so to do. Hence the bar of limitation for such a suit is sis years, under Rev. Stat. 4981 (Lan; 8496). Whilden v. Bank, 64 Ala. 1 [38 Am. Rep. 1]; Kohn, v. Carrollton, 10 La. Ann. 719; Segelken v. Meyer, 94 N. Y. 473 r. Whereatt v. Bilis, 58 "Wis. 625 [17 N. W. Rep. 301]; Union Pao. By. v. Shook, 3 Kans. App. 710 [44 Pac. Rep. 685]; Balt. & 0. & C. By. v. Gibson, 41 Ohio St. 145; Rich v. Railway, 87 N. Y. 382; Coles v. Coles, 15 Johns. (N. Y.) 159; Jones v. Harraden, 9 Mass. 540; DeYoin v. DeYoin, 76 "Wis. 66 [44 N. W. Rep. 839]; Maloney v. Barr, 27 W. Ya. 381; Shaw v. Coffin, 58 Me. 254 [4 Am. Rep. 290]; Burton v. Driggs, 87 U. S. (20 Wall.) 125 [22 L. Ed. 299]; Whittaker’s Annotated Code (6 ed.) 3.65; Davis v. Railway, 110 N. Y. 646 [17 N. E. Rep. 733]; Goby v. Ibert, 58 N. Y. St. 117 [25 N. Y. Supp. 998]; 1 Bates, Pleading 165; Milius v. Marsh, 12 Dee. Re. 765 (1 Disn. 512); Tiffany v. Henderson, 57 Iowa 190 [10 N. W. Rep. 884]; Austin v. Hayden, 6 Ohio 388; Johnson v. Carrington, 7 Dee. Re. 572 (3 Bull. 1139) ; Spice v. Steinruck, 14 Ohio St. 213; Zumstein v. Coal & Mining Co. 54 Ohio St. 264 [43 N. E. Rep. 329]; Poor v. Scanlan, 8 Dec. Re. 275 (7 Bull. 15); Weber v. Kemper Bros. 8 Dec. Re. 403 (7 Bull. 301) ; Thatcher v. Heisey, 21 Ohio St. 668; Bishop, Contracts Secs. 184, 186, 226, 238;' Dougherty v. Chapman, 29 Mo. App. 233; Barker v. Cory, 15 Ohio 9; White v. Brooks, 43 N. H. 402; Dickinson v. Whitney, 9 Ill. 406; Loomis v. O’Neil, 73 Mich. 582 [41 N. W. Rep. 701]; 2 Ene. PL & Pr. 1023; Wharton, Contracts Secs. 730, 731; Miller v. Miller, 24 Mass. (7 Pick. \ 133 [19 Am. Dec. 264]; Handley v. Troti, 4 Cowp. 37k; Keener, Quasi Contracts. 159,160,161,162,175; Phillips, Code PI. Sec. 310; Zieverink v. Kemper, 50 Ohio St. 208 [34 N. E. Rep. 250],
    G. M. Osborne, for defendant in error-.
   WALTERS, J.

In the common pleas court, the plaintiff in error, William E„ Kirchner, filed against Lloyd E. Smith, the defendant in error, a petition, to which a demurrer was sustained by that court; subsequently he filed an amended petition,, to which a demurrer was interposed by the defendant, and in determining this demurrer in favor of the defendant, it was held that the action, both on the original and amended petition, was barred by the four years’ statute of limitations; and thereupon the plaintiff filed a petition in error in this court.

Was there error in this decision of the common pleas court? If the four years statute, Rev. Stat. 4982 (Lan. 8497), applies, then the action was not brought in time; but if the six years statute, Rev. Stat. 4981 (Lan. 8496), applies, then it was brought in time.

The original petition below was upon an account for one-half of the purchase price of the undivided one-twelfth interest in an oil and gas lease on a tract of 105 acres of land, situated in Tyler county, West Virginia, and belonging to Elisha P. Snyder.; which said one-twelfth interest was owned by the said Smith and Kirchner, each owning one-half thereof, and was on October 10, 1897, sold by said Smith for $1,151.04; and said Smith then received and converted to his own use the whole of said purchase money, including $575.52, which belonged to plaintiff in error; the interest on said $575.52 from, October 18, 1897, till September 15, 1902, is $177.95, and the total is $753.99. There are no credits on said account.

'Wherefore, plaintiff prayed for judgment against the defendant in the said sum of $753.99, with interest thereon from September 15, 1902.

The amended petition sets up the same transaction: the ownership of the lease by the plaintiff and the defendant, each owning one-half of the undivided one-twelfth of the oil and gas lease and described the land more particularly by metes and bounds, but as being situated in the same county, and the same number of acres; and it avers that in October, 1897, the defendant wrongfully sold and converted to his own use the proceeds of the sale, $1,151.04, and it asks judgment for the one-half of the proceeds of the sale so received by the defendant.

1. The first contention is, that the amended petition states a different cause of action than that in the original petition; that the identity of the cause of action stated in the original petition is not the-same as that described in the amended petition. The original petition, in form, was upon the account so stated. The consideration of the account is the one-half of the one-twelfth of the oil and gas lease in Tyler ’ county, West Virginia, upon a tract of 105 acres of land, which one-twelfth the defendant sold on a certain day, and that he received $1,151.04, and that he has refused to turn over the one-half; and he asks judgment in money for the one-half of that.

The amended petition states the same facts in a little more-elaborate manner, describing particularly by metes and bounds the 105 acres as being situated in Tyler county, West Virginia, and that each of them (plaintiff and defendant) was ,the owner of the one-half of the one-twelfth of this oil and gas lease, and that the defendant on a certain date, 1897, the tenth of October, sold, with his own, this interest of plaintiff, and that defendant had, and received $1,151.04; and the plaintiff asks judgment for the one-half of the proceeds so received by Smith.

There is a complete identity of the causes of action. There is no departure — if departure it can be called — which is usually a term applied to where the reply of the plaintiff departs from the cause of action stated in the petition. •

But it is alleged that there is a different cause of action. And whether or not there is a different cause of action is to be determined by certain tests.

First. The same evidence would support both pleadings. The same evidence that would support the original pleading in this case would support the cause of action in the amended petition. The petitioner owned the one-half of the one-twelfth of the oil and gas lease in Tyler county, West Virginia, upon 105 acres of land; the defendant sold the whole twelfth, October 10, 1897, and converted one-half of the proceeds — money—to his own use; and the plaintiff demands the one-half of that certain sum so received — the. proceeds of the sale. Now, would not the same evidence'support the amended petition that would support the original petition ? Is not the identity of the cause of action the same in regard to the one-half of the one-twelfth of the oil and gas lease on 105 acres, in Tyler county, West Virginia? The amended petition says that same thing. The same evidence that would be introduced to support a cause of action upon the account in the petition would be, and could be, the only evidence that could be introduced upon the amended petition. This makes an identity of the causes of action.

Second. The same measure of damages applies to each of them. The same amount was asked in the amended as in the original petition, viz., one-half of the $1,151.04. The identity is therefore complete; and the recovery would be the same on .each pleading.

Third. A recovery upon the amended petition would bar a recovery upon the other pleading. Would not a recovery on the amended petition of the one-half of the one-twelfth of an oil and gas lease of the proceeds of that .sale — bar the right to recovery upon the original petition which counts upon the same thing? Therefore, the identity of the causes of action is the same. It is the same subject-matter, and the same interest in the gas and oil lease, owned by the same parties; the proprietors, in the same tract of land, in the same county, are averred, -and the same amount is asked in both. Therefore, we must necessarily conclude that the identity of the causes of action is the same. The form of action is perhaps changed from that on the account in the original petition of that of money had and received in the amended petition,- but this is an immaterial difference.

2. Is the cause of action barred by the statute of limitation? Is the cause of action stated in the petition and also the one stated in the amended petition a cause of action in ex delicto, and not on implied contract? If it is upon an implied contract, the statute of limitation is six years, and therefore the action is not barred. If the action is for a tort, then the statute of limitation of four years bars this action.

We hold that the amended petition, being for the same identical cause of action as the original petition, that the statute of limitation ceased to run at the filing of the petition in this case, and not at the filing of the amended petition. But does the statute, four years’ statute, or the six years’ statute, apply?

When one person receives the property of another, if he illegally and unlawfully or wrongfully obtains the property of another, the law implies an obligation upon his part that he will refund to the owner that property so unlawfully coming into his possession. Therefore, there arose an implied contract on the part of the defendant when he sold this oil and gas lease for $1,151.04, and received the whole of it, if the half of it belonged to the plaintiff in this case — there was an implied obligation upon the part of the defendant — to pay over, to the plaintiff one-half of the same so received by him.

3. Now, it is true, that the plaintiff might have sued as in tort, and the question is, whether the petition and amended petition is one in tort, or whether it is upon an implied contract? And that is to be determined from the language of the amended petition. The amended petition does allege the fact of the sale of the oil and gas lease by the defendant; that he wrongfully and unlawfully converted the one-half of the proceeds belonging to the plaintiff to his own use ; but the plaintiff does not seek damages by reason of the unlawful conversion of his property. He seeks in this ease to recover one-half of the proceeds of the sale made by the defendant, and not to recover damages — whether those damages be the amount of the proceeds received by him, or more ®r less; but he seeks to recover the actual money that the defendant-received. This is money that the defendant owes upon this implied obligation, which the law raises in this case.

4. It is true' there is language used in this petition that would apply to a tort. Now, where a party has a right of action which he may bring either in tort, or in ex contractu, he may waive tort and bring an action upon contract, and the only question is, whether the plaintiff has done so. We are clearly of the opinion that he has.

In Mount v. Lakeman, 21 Ohio St. 643, the action was brought against the treasurer of a certain township to recover funds which he had converted to his own use. The petition alleged that he received the money sued for, and that it became his official duty to distribute and pay over the money according to law; that he failed to do so, but converted the same to his own use, and, that was held to be an action ex contractu, and not one ex delicto.

Judge Ranney, in State v. Newman, 2 Ohio St. 567, 568, while not deciding the exact question — it not being necessary to do so in passing upon the question that arose in that case, for it was an action upon a. bond of the treasurer — held:

“A refusal to pay over money received in his official capacity, when demanded, is a failure to perform his official duty, and a non-feasance in office; and it is certain that an action upon the case, founded upon the tort, could not be sustained after one year. But it is equally certain, that the plaintiff might, if he saw fit, waive the tort and sue in. assumpsit, for money had and received, at any time within six years. ”"

Now, we think it clearly appears from this petition and the-amended petition that the action is not in tort. It is not for damages for the unlawful conversion of this property. The plaintiff seeks not more nor less than the amount received by the defendant. He seeks to-recover the money actually received by the defendant; the money which the law raises an implied promise that he should pay to him. And it is distinguishable in that’ feature from an action for a tort. While the language used in the pleading is, that he “wrongfully converted,” “unlawfully converted” (and it is an actual fact, that he did unlawfully and wrongfully convert the same, if the petition is true), and while the plaintiff sets out that, by reason of this, he is entitled to the-actual money received, still he does not sue for damages for the conversion ; he sues for the money which he says belongs to him and which the defendant received and converted to his own use, and no more. This is the distinction in all the books which determines whether it is ,& tort, or whether it is one upon contract; and the plaintiff’s pleading® show that his action is of the latter kind.

We, therefore, are clearly of the opinion that the six years’ statute of limitation applies, because it is a petition upon an implied contract for the proceeds of the sale, and we adjudge, therefore, that the common pleas court erred in sustaining the demurrer to the amended petition.

The judgment will be reversed and instruction given to the court of common pleas to overrule the demurrer to the amended petition.

Jones and Cherrington, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    DAMAGES — NEGLIGENCE—TORTS.
    [Summit (8th) Circuit Court,
    April Term, 1905.]
    Marvin, Winch and Henry, JJ.
    Northern Ohio Ry. v. Akron Canal & Hydraulic Co.
    1. Joint Tort Feasor Ordinarily cannot have Contribution.
    When two or more contribute by their wrongdoing to the injury of another, the injured party may recover from all of the tort feasors in a joint action, or he may pursue any one of them and recover from him, and in such case the latter is not ordinarily entitled to indemnity or contribution from those who with him caused the injury.
    2. Joint Tort Feasor can have Contribution when not in Pari Delicto, but Merely Chargeable with Other’s Wrongful Act.
    Although, in an action for damages, the law holds all parties liable as wrongdoers to the injured party, yet if a judgment has.been obtained against a joint tort feasor, but it appears that as a matter of fact' he was not in vari delicto with the others but was merely chargeable with their wrong by virtue of some relation existing between them, he will in turn be entitled to contribution from those causing the injury.
    3. Mill Race Owner Responding in Damages for , Overflow may Recover of Party Actually Causing Same, if without Fault Himself.
    A defendant who has been compelled to respond in damages in a suit for negligently permitting the water in a mill race to overflow another’s property, will have an action to recover the amount of such judgment from a railway company which has condemned certain land on the side of such mill race for its right of way and in building a bridge across the same, has so obstructed it as to cause the overflow, all of which was done, as a matter of fact, without fault on the part of the owner of the mill race.
    4. Charge Enunciating Ordinary Rule of Contributory Negligence is Erroneous. if Evidence Shows Plaintiff Relieved by Special Promises of Defendant.
    In an action for damages against a railway company for negligently obstructing plaintiff’s mill race, thus causing it to overflow, a charge to the jury in substance that even if the defendant was guilty of negligence, the plaintiff could not recover if he did not exercise reasonable care irt the management of the race, will be erroneous, where the evidence tends to show that the attention of defendant’s agent'was called to the fact that the waters in such race were rising to a dangerous height as a consequence of the railway’s building operations, and that he assured plaintiff that he would take care of the same, so as to prevent any injury therefrom.
    ISyllabus approved by the court.]
    Error to Summit common pleas court.
    Tibbals & Frank, for plaintiff in error.
    Stuart & Stuart, and Allen, Waters & Andress, for defendant in error.
   MARVIN, J.

The Northern Ohio Railway Company is the successor of the Akron and Pittsburg Railroad Company, and in this opinion will be spoken of as the original party in certain proceedings and contracts made in the name of the latter company.

The plaintiff here was the defendant below, and the defendant here was plaintiff below. In this opinion, the parties will be designated as in the original action.

The plaintiff is the owner of a mill race which conducts water in large quantities from a point east of the city of Akron to a place in said city where it is utilized as power for certain mills and manufactories..

The defendant is a railroad company operating a line of railroad from the western part of Ohio easterly to and through the city of Akron; said mill race, for a part of its distance in said city, is some forty or fifty feet higher than the tracks of the Cleveland Terminal and Valley railroad, which, at this place, are practically parallel with said race, and on the north side thereof.

On the night of September 17, 1898, the waters in said race rose to such a height as to overflow its northern bank and wash a considerable part of the same away, the waters rushing down with great force and volume upon the tracks of the Cleveland Terminal and Valley Railroad Company, oversetting some cars standing upon said tracks, undermining said tracks, and so doing great injury to the property of said last named company.

To recover for this injury said last named company brought suit against said plaintiff and obtained judgment against it in the sum of $3,870.90, which said judgment the said plaintiff has paid in full. The present suit was brought to recover against the defendant such judgment, together with the expense of repairing the race.

The grounds of recovery set out in the second amended petition, upon which the case was tried, are, that the defendant, in the year, 18960 by proceedings duly had in the probate court of said Summit county,, appropriated from plaintiff a right of way for its railroad along, and! crossing over, said hydraulic race or canal at or near Summit street in said city of Akron; that by the terms of said appropriation the bridge-to be built for the said railroad was to pass over said canal or race at that point, and was to be constructed so as not to impede the free flow of water through said canal or race, nor diminish or impair in any manner the usefulness of said canal or race; that afterwards said defendant, in the corporate name of said The Akron and Pittsburgh’. Railroad Company, but for the sole benefit of said defendant, acquired by purchase from said plaintiff, as evidenced by deed dated May 4, 1898, the right to construct stone walls or abutments, instead of timber piling to support the structures for the support of the railroad over said canal or race at the crossing so as aforesaid appropriated, and it was provided and stipulated in said deed that all of the said work of building said stone walls and structure was to- be so done and maintained as not to impede in any way the free flow of the water through said canal or race and not to diminish or impair in any manner the usefulness of said race; that in and about the months of August and September, 1898, the exact date being unknown to plaintiff, said defendant, the Northern Ohio Railway Company, secretly and without the knowledge of plaintiff entered into a contract with said The Akron . and Pittsburgh Railroad Company, whereby it, the defendant, engaged to construct, as an independent contractor, said stone walls, and thereafter did construct the same, all of which construction was for the sole benefit of said defendant, but under the cloak and guise of the corporate authority of said The Akron and Pittsburgh Railroad Company, said defendant attempted to hide and conceal its connection therewith.

Plaintiff further avers that notwithstanding such attempted concealment said defendant, the Northern Ohio Railroad Company, had and exercised the sole and exclusive charge and control of such construction and of the mode and manner of doing the same, and the said stone walls were in fact constructed by it for its sole benefit and at its ultimate expense.

Plaintiff further avers that on or about August 15, 1899, said The Akron and Pittsburgh Railroad Company conveyed to said defendant, The Northern Ohio Railway Company, by proper instrument of transfer, all the right, title and interest in, the Akron and Pittsburgh! Railroad Company, had acquired to construct, operate and maintain said railroad to cross over said canal or race in the manner hereinbe-fore stated, and said defendant, the Northern Ohio Kailway Company, then and there agreed with the Akron and Pittsburgh Railroad Company that by its acceptance of the transfer of said rights, title and interest of said The Akron and Pittsburgh Railroad Company to pass over said canal or race as aforesaid, it had, and then and there did assume and undertake the payment of any and all obligations of any kind whatsoever which were then, or thereafter might become, due and payable by said The Akron and Pittsburgh Railroad Company, respecting the passing and crossing over said canal or race as aforesaid, which said assumption and undertaking was entered into for the benefit of the plaintiff herein.

The construction of áaid- stone walls along the sides of said canal or race, was carried on solely by said defendant, and its officers, agents and employes, during all the time of their construction; and the defendant then well knew that said canal or race, was located along and upon the hillside so that if the water was permitted to overflow the banks of said canal or race, it would flow down upon, and cause damage to, property located lower down the hillside.

Shortly prior to September 17, 1898, while said defendant was engaged in the construction of said stone wall, it carelessly, negligently ■and knowingly so caused and permitted the channel of said canal or race to be narrowed, restricted and partially filled with obstructions at a point near Summit street in said city, where said street crossed the said canal, so as to cause the water in said canal or race to set back and. to rise to such a height as to overflow and cut away the bank of said canal or race.

The answer to this petition admits that defendant acquired from plaintiff, by appropriation and by deed, the rights as set out in such petition; admits the overflow of the water and the injury to the property of the Yalley Railway Company, but denies that such overflow was caused by it, and avers that the same was either an inevitable accident, or that it was caused by the negligence of the plaintiff.

The result of the trial was a verdict and judgment for the plaintiff. A motion for new trial was filed and overruled, proper exceptions taken to this and to other proceedings in the trial, which will hereafter be noted. The case is here upon proper proceedings in error seeking ■a reversal of the judgment. A bill of exceptions was filed here setting out the proceedings of the court below with all the evidence offered at the trial.

When this ease was before in this court, construction was given to the deed, made by plaintiff to the defendant, and it was held that the provisions therein relating to the construction of the abutments and structure, and reading, “All of the work to be constructed and maintained so as not to impede the free flow of water through said race and not to diminish or impair in any manner the usefulness of the same,” refer to the completed structure, and not to the manner of the work while the same was in progress. So that if the defendant is liable for ■any obstruction which it placed in the race, during the progress of the work, it is not because of this contract, but because it failed to exercise reasonable care in doing its work so as not to injure unnecessarily and unreasonably the rights of the plaintiff.

The evidence shows that in the progress of building the abutments for the bridge the defendant constructed cofferdams to keep back the water from the work and the workmen, and that shortly before the -overflow of the water already mentioned it had so constructed a cofferdam as to narrow the channel down to a very few feet, thereby causing the flow to be so retarded as to increase greatly the depth of the water in that part of the race where the overflow occurred and the wall gave way. In short, it is not and cannot be denied that the evidence so strongly tended to show negligence on the part of the defendant; that the jury might well find, as it did, that the defendant was guilty of negligence, in the premises.

It is said, however, on the part of the plaintiff in error, that the evidence clearly shows negligence on the part of the plaintiff approximately contributing to the accident, and that therefore the plaintiff is precluded from a recovery. '

The evidence shows that the attention of Mr. Cleveland, the superintendent of the plaintiff, was called to the increase of the depth of the water some forty hours or more before the bank gave way, and tends to show that by raising a certain water gate at the eastern end of this race, he might have provided for the escape of the water so as to relieve the pressure; it also tends to show that he called the attention of the man in charge of the construction of the stone work to the backing up of the water and the increase in its depth, and was assured by him that he would take care of that". It tends also to show that this could easily have been done by him, and that he failed to do it.

Whether there was negligence on the part of the plaintiff was; ■a question for the jury and was, we think, fairly submitted to it.

Complaint is made, however, that' the court erred in refusing to charge the jury as requested by the defendant. The defendant made eight requests, only one of which was given, to wit, the third. The-first request made is:

“If you find from the evidence, that the defendant was guilty of the negligence charged in the second amended petition; and' if you also-find that the plaintiff under all the facts and circumstances of the case-which were known to it, or should have been known to it, did not exercise reasonable and ordinary care in its management of the race, and in regulating the flow of water therein; and that such negligence of the plaintiff contributed proximately to the breaking of the race on the night of September 17, 1898; then I say to you that under such circumstances the plaintiff cannot recover in this action.”

This was refused. It is insisted that it properly states the law applicable to the case. It may be said in response to that, as has already been said, the evidence tended to show that when the attention of the man in charge of the construction of the stone abutments was called to the backing up of the water, the increased depth, and the danger that might thereby be occasioned to the north wall of the race, that he replied that he would take care of it. Now, if that were true, — if the-jury believed that the man in charge of the work had answered, when his attention was called to it, that he would take care of it, — and if the jury further believed that he could have taken care of it with the exercise of reasonable care, then this request should not have been given, for the jury would be Jed to think that the fact that the man in charge of the construction of the stone work had promised that he would take care of it could in no wise relieve the plaintiff. ¥e think that the court properly refused this, and that the charge as given on pages 504, 505 and 506 of this record properly instructed the jury and carefully instructed the jury as to the law by which the plaintiff would be precluded from a recovery.

The second request reads:

“If you find from the evidence that the defendant constructed a cofferdam in the race, and that such cofferdam restricted the ordinary flow of the water and backed it up in the race to such an extent as to cause it to break away the bank as complained of; and if you find that for a day or more before such break occurred, that the plaintiff knew of such cofferdam and such backing of the water, and could have prevented the breaking of the bank by the exercise of ordinary care, and .did not do so, then the plaintiff would be guilty of such contributory negligence as would prevent a recovery.”

What has already been said in reference to the first request is applicable to this, and more strongly applicable.

The third request was given, and in connection with what the court said, to which attention has already been called, and which will be read later, we think the jury were properly instructed, certainly instructed as strongly for the defendant as the defendant was entitled to. The court said :

(Defendant’s request No. 3.) “If you find from the evidence on this trial that the breaking of plaintiff’s mill race bank, as charged in the petition, was caused by the joint or concurrent negligence of the plaintiff in not properly caring for the water and regulating the flow of the same in the race; and also find the negligent construction of its cofferdam in said race, by the defendant, by which the flow of water was improperly impeded and obstructed, then I say to you that neither party would have any right of action against the other for contribution for damages by reason of such break of the race bank, and in such ease your verdict should be for the defendant. ’ ’

What has been said as to the other requests which were refused, applies with more or less force to each of the several requests, and we find no error in the refusal of any of the requests when we find what the court did give to the jury; for these requests were not made to charge before argument, and, therefore, the court was not bound to give them in the words in which they were requested, even if they properly stated the law, provided the court properly stated the law in its charge to the jury.

The court, after speaking of the negligence which the plaintiff ■charged against the defendant,' called the attention of the jury to the fact that the defendant charged negligence against the plaintiff, and said:

“It is also set forth in the answer that on the night in question there was a storm of rain of more than usual violence perhaps, and that, that rainfall suddenly increased the flow of water, and that that rainfall in connection with the flow of water through the gate at Middle-bury caused such an accumulation of water in the race so suddenly that it broke over this bank and washed it away and caused the trouble.
“Now, this is the specification of negligence which the defendant makes against the plaintiff, and the rule of law on that subject is, that where contributory negligence is shown by a preponderance of the evidence on the part of the plaintiff, that the plaintiff cannot recover. The plaintiff cannot recover any compensation for- any damages which it might have avoided by the use of ordinary care and prudence under the circumstances. It is a general rule of law that where both parties, plaintiff and defendant, are in fault and both guilty of negligence or a want of reasonable and ordinary care, neither can recover .damages from the other for the consequences of such joint negligence.
“And in this case I say to you, that if you find from the evidence, and a preponderance of it on the part of the defendant, that the plaintiff itself was so guilty of negligence in the premises or a want of reasonable and ordinary care, as I have defined that term to you, then it cannot recover if such negligence on its part proximately contributed to the injury which arose.”

It is urged on the part of the defendant, however, — and I am using “defendant” as in the original action — that the fact shown in the petition, of the recovery by the Yalley Railway Company against the plaintiff, establishes the negligence of the plaintiff, because there could have been no recovery against it, except upon the ground of its negligence, and that this being so it necessarily follows that it cannot recover of defendant, even though it be proved to have been negligent, the rule being.that when two or more contribute by their wrongdoing to the injury of another, such injured party may recover from all of them in a joint action, or he may pursue any one of them and recover from him, in .which case he is entitled neither to indemnity nor contribution from those who with him caused the injury.

There are, however, exceptions to this rule. Numerous eases are reported in which the courts of last resort have held that one mulcted in damages because of some neglect of duty on his part, may recover of another who directly caused the injury. The most common -of these is, where a municipality in required by law to keep its streets and public ways free from nuisance, and in proper condition for use by the public, and has been obliged to respond in damages at the suit of one injured by the defective condition of walks in front of the premises of a person whose duty it was primarily to keep such walk in proper repair.

In Shearman & Redfield, Negligence (4 ed.) See. 301, this language is used:

“In conclusion, under this head, it should be added, that although a municipal corporation may be, either at common law or under the statute, primarily liable for injuries occasioned by the unsafe condition of its highways, the ultimate liability may rest upon a third person who is the real author of such condition, and who, jointly with the corporation, may be liable for the damages suffered therefrom. If the injured person elects to proceed against the corporation solely, and recovers damages, the latter has an action over against the original wrongdoer.”

In Cooley, Torts (2 ed.) side page 145, this language is used:

“But there are some exceptions to the general rule,” (after having stated the rule, that where two or more wrongdoers are liable because •of some injury that is caused from the neglect of duty of such wrongdoers, there can be no recovery of one against the other), “which rest ■upon reasons at least as forcible as those which support the rule itself. They are of eases where, although the law holds all the parties liable .as wrongdoers to the injured party, yet as between themselves some of them may not be wrongdoers at all, and their equity to require the others to respond for all the damages may be complete. There are many such cases where the wrongs are unintentional, or where the party, by reason of some relation, is made chargeable with the conduct of others.”

But these cases are not confined to suits brought by municipalities.

Attention is called to the case of Gray v. Gas-Light Co. 114 Mass. 149 (19 Am. Rep. 324). The syllabus reads:

“The owner of a building to the chimney of which a gas company has, without the owner’s consent, so affixed a wire as to render the chimney unsafe, and ultimately to cause its fall upon a passer-by, may be liable for the damage so caused; and if, when so liable, he pays the damage, he has an action against the company for indemnity.”

The facts in that case show that the owner of a building on which was not a good .chimney but a defective chimney, that the light company placed a wire around that chimney without the consent of the owner; there was a storm, the chimney fell down and injured a person on the walk; the party injured brought suit against the owner of the building and recovered, and the owner of the building vras permitted to recover against the company which put the wire around the chimney.

There is a ease in Minnesota, reported in Minneapolis Mill Co. v. Wheeler, 16 N. W. Rep. 698 [31 Minn. 121].

The syllabus reads as follows:

“The plaintiff corporation had excavated a canal through its lands for the use of its water power, which had been bridged over in part by plaintiff and in part by others, with its license, and the bridge or platform so made was thereupon operated, used, and held out to the public as a continuous thoroughfare for all persons having business to and from the mills abutting thereon: Held, under the circumstances, that, as to persons rightfully upon any portion of such bridge or platform, plaintiff,” — that is, the mill company — “was liable for damages caused by its failure to exercise reasonable diligence to keep the bridge in repair, or closed against travel.
“The owner of premises, having the possession ana control thereof, may be liable for an injury caused by their unsafe and dangerous condition, though resulting from the act or negligence of a third person.
“The person through whose conduct or negligence the owner is thus exposed to liability, is also liable to an action* by the injured party at his election. And in such ease, also, the parties not being in pari delicto, the owner who has been obliged to pay su,ch damages is entitled to indemnity from the person to whose act or negligence the injury is directly chargeable.”

To the same effect is the case in Armstrong Co. v. Clarion Co. 66 Pa. St. 218 [5 Am. Rep. 368].

The eases where municipalities have been permitted to recover-against the property owners, and the case to which attention has been called in Gray v. Gas-Light Co. supra, seem to rest upon the proposition that the fact of a defect, in cases of municipalities, in the walk being shown and the resulting injury, nothing further need be shown as to-negligence to entitle the injured party to a recovery. In the present case the same rule and the same reasoning seem to apply.

In the ease of Defiance Water Co. v. Olinger, 54 Ohio St. 532 [44 N. E. Rep. 238; 32 L. R. A. 736], the first clause of the syllabus reads:

‘ ‘ One who collects on his own premises a substance liable to escape, and, if it should escape, likely to cause mischief, must, at least, use reasonable care to restrain it. If for want of such care it escapes and injures persons or property rightfully on adjoining premises, he is-answerable for the damages sustained on account thereof ”

And in the opinion, pages 538 and 539, Judge Bradbury uses this language:

“In England it seems to be settled by Fletcher v. Rylands, 1 Law Rep. Exch. 265, that the duty rests upon one who collects and stores upon his premises inanimate substances or animate things from the escape of which injury is likely to follow, to prevent such escape. While this duty may not extend to trespassers, or those who, for their own purposes, without express or implied invitation from the proprietor, chose to come upon the premises, yet that case, Fletcher v. Rylands, supra, should be regarded as extending this duty to all persons who may be rightfully on adjoining premises,” then, quoting from Judge Blackburn, in which a similar view is held.

I call attention to the ease of Bradford Glycerine Co. v. Manufacturing Co. 60 Ohio St. 560 [54 N. E. Rep. 528; 45 L. R. A. 658; 71 Am. St. Rep. 740] ; and the case of Langabaugh v. Anderson, 68 Ohio St. 131 [67 N. E. Rep. 286], in each of which the case of Fletcher v. Rylands is commented upon.

From this it seems to follow that a recovery could have been had by the Valley Railway Company against the hydraulic company by showing that the hydraulic company had upon its property this water, which was liable to overflow, and did overflow, to the injury of the railway company, without showing any other negligence on the part of the hydraulic company. If that be so, the same reason which would allow the municipality to recover from one who allows a defect in the sidewalk to be in front of his premises, would apply in this ease.

But it is said, that in Ohio the doctrine is not as in some of the other states on this right of the municipality to recover from one who permits the existence of a defect in the sidewalk in front of his premises, and attention was called in the argument to the ease of Morris v. Woodburn, 57 Ohio St. 330 [48 N. E. Rep. 1097]. On pages 334 and 335, Judge Shauek, in announcing the opinion, uses this language:— and perhaps, I should say, before reading, that this was a suit brought by a party injured against the owner of a lot abutting on the street of a municipality for an injury sustained by the plaintiff caused from a defective sidewalk, or rather the construction of a vault under the sidewalk, over which the properly owner negligently placed and maintained a defective grating. The suit was brought directly against the property owner. No suit was brought against the municipality, therefore the municipality had no occasion to bring a suit against the property owner, and what is said by Judge Shauek, which is about to be read, it must be conceded was not necessary to have been said in order to decide •the case. It was outside of the case, but it expressed the opinion of the judge who prepared the opinion at least.

“But while the tort of the city consisted in the failure to discharge a duty imposed by statute,” It should be said that the property owner was insisting that the suit should be brought against the city “that alleged in the amended petition against Mrs. Morris, consisted in the creation of a nuisance, dangerous to those using the walk. These- are concurrent and related torts, but they are not joint. In view of their independent character, the plaintiff might, at her election, maintain her action against either the city for its omission of duty, or against Mrs. 'Morris for the creation of the nuisance which occasioned her injury.”

So far it is entirely applicable to the ease. What follows, as has already been said, need not have been said in order to decide this case:

“And it appears from reason and authority that the primary’ liability in such case is upon him who actively creates the nuisance; so that if a recovery were had against the city, it might in turn recover from the perpetrator of the wrong.”

If that were contained in the syllabus, or if that was said necessarily' to decide the ease that was before the court, and had not been interfered with by any announcement of the court since, it would clearly be a rule which should govern us if it is applicable to the ca.se before us. It is not as strong as that, because, as has already been said, it was not involved in the case. But that opinion was announced on December 14. 1897. Two months and a half thereafter the same judge announced an opinion in the case of Wilhelm v. Defiance (City), 58 Ohio St. 86 [50 N. E. Rep. 18; 40 L. R. A. 294; 65 Am. St. Rep. 745]. Unless there is something in this case that shows that the mind of the judge had changed since December 14, 1897, we must not assume that such change had taken place. This is a ease where one Wilhelm had constructed a sidewalk in the city of Defiance, the construction of which was defective. It was not a case where a sidewalk having once been constructed was thereafter made unsafe by an excavation or anything of that sort, or had become, by long use, defective, but where the original construction was defective. A party was injured, brought suit against the city of Defiance and recovered, and then the city brought its suit against Wilhelm, and it must be conceded that the syllabus as announced here would seem to be in conflict with the opinion in the case in Morris v. Woodburn, supra, which has just been read from. The syllabus reads:

“A municipal corporation, having in the proper mode provided for the construction of a sidewalk and notified the owner of abutting land, may require of him the construction of a sufficient walk in front of his premises, and, upon his default, may itself construct such walk and assess the cost thereof upon his land; but it cannot recover from him indemnity on account of if judgment recovered against it for injuries occasioned by such owner’s negligent construction of the walk.”

The facts are not given in great detail, but the closing paragraph of the opinion seems to distinguish the ease from the case already referred to in Morris v. Woodburn, supra:

“The policy of the statute, as indicated'by its provisions according to the doctrine of the cases cited and the numerous cases which they review, seems to require the conclusion, that when a municipality accepts a sidewalk constructed by the owner of abutting property pursuant to its notice, as a compliance therewith, all liability for mere negligence in construction and maintenance must rest and remain upon it.”

Where the city accepts the sidewalk, that is a compliance; then it and not the property owner is liable to the party injured; or, in any event, when the city is liable, and is obliged to pay, it may not recover of the property owner. From these two eases, the opinions being announced by the same judge, and at so near a time together, it is hardly to be presumed that the court meant to go further in this case than to say that where the original construction is defective and the city accepts that construction, it must be bound by it.

Mr. Henry Newbegin, a leading lawyer in northwestern Ohio, was the attorney for plaintiff in error in this case, and he recognized the rule as announced in Morris v. Woodburn, supra, although he did not cite that ease, but in his brief, he says, page 59: “If Wilhelm had done any act which rendered the use of the street hazardous to passers thereon, such as making an excavation under the sidewalk without proper supports, or by leaving unsafe hatchways thereon, or leaving open a coal hole, or actually placing an obstruction in the street so that he would have been liable to the person injured in an action directly against himself * * * and the city had been obliged to respond in a judgment against it, on account of the injury to the passer-by, then it probably could have recovered in this action against Wilhelm, as it would have been subrogated to the rights'of the person injured.”

The announcement of the opinion in this case does not seem to conflict with that argument by counsel for plaintiff in error, and we conclude that to be the law in Ohio, and that being the law as to municipalities, the reasoning seems to apply to this case, and we affirm the judgment of the court below.

It should be said that this conclusion has not been reached without very careful consideration and with some hesitation. We are not absolutely confident that we are right, but the weight of authority, we think, is in support of the opinion announced.

Winch and Henry, JJ., concur.


author: JELKE, J.

text:
    FRAUDULENT CONVEYANCES.
    [Hamilton (1st) Circuit Court,
    July 8, 1905.]
    Jelke, Swing and Giffen, JJ.

      American Engineering Specialty Co. v. Delia O’Brien.
    Fraudulent Intent must be Cleably Shown to Justify Attachment.
    Constructive fraud or even suck evidence of fraud as migkt justify setting aside a conveyance will not be sufficient to sustain an attaekment; for such purpose, the fraudulent intent must he clearly shown.
    ERROR to Hamilton common pleas court.
    Rogers Wright and J. B. O’Neal, for plaintiffs in error.
    A. A. Ferris and W. B. Morrow, for defendants in error.
   JELKE, J.

Error is prosecuted to this court [in American Engineering Specialty Co. v. Delia O’Brien and Crane-Hawley Co. v. Thomas J. Conner et al] to an order of the court of common pleas vacating and discharging an attachment. The affidavit for attachment charges:

“* * * that the defendants, and each of them, have assigned and disposed of a part of their property with intent to defraud their creditors; that they are about to convert a part of their property into money, for the purpose of placing it beyond the reach of their creditors, and have converted a part of their property into money, for the purpose of placing it beyond the reach of their creditors,” etc.

The issue made and tried below is a determination of the question: Did Delia O ’Brien and Patrick 0 ’Brien dispose of any of the property of the firm of John O’Brien & Company with intent to defraud the creditors of said firm?

To sustain an attachment, actual intent to defraud must be clearly shown. ■ Constructive fraud, and even such evidence of fraud as might justify setting aside a conveyance, have been held not sufficient to sustain an attachment. Remembering this rule, and the rule that a reviewing court will not disturb the finding of the trial court unless its decision is manifestly against the weight of the evidence, we are of opinion that the record in these cases does not require or justify a reversal.

We think the opinion of the trial court, American Eng. Spec. Co. v. O’Brien, 15 Dec. 749, on the evidence is a correct view of the facts in these cases.

Judgment will be affirmed.

Swing and Giffen, JJ., concur.


author: DONAHUE, J.

text:
    CONTRACTS — EVIDENCE—SALES.
    [Richland (5th) Circuit Court,
    January, 1905.]
    Yoorhees, Donahue and McCarty, JJ.
    Fruit Dispatch Co. v. Henry H. Sturges.
    1. Responsibility op Seller oe Perishable Goods, Car Load Lots, f. o. b. Shipping Point,
    A contract of sale for the delivery of perishable goods in car load lots, f. o. b. shipping point, where the car is loaded by the seller, and not by the common carrier, requires of the seller that he should properly load and deliver such car in good condition to the railroad company. There the responsibility of the seller ends, but if he should fail in any particular in properly loading said car and deliver it to the railroad company in right condition, and by reason of which failure the goods were injured and destroyed in transit, the buyer is not bound to receive the same, nor does the property in the goods pass to him until the obligation of the shipper is discharged with reasonable care and diligence.
    3. Question of Performance by Seller for Jury.
    The law of such contract requires that the seller shall do that thing which is right and reasonable for the protection of perishable property, to be delivered f. o. b. at shipping point, and the question as to what is right and reasonable is a question for the jury, and evidence of the general custom of the trade in handling such perishable property is competent for the purpose of showing what is reasonably necessary under such circumstances.
    3. Entry in Book by Person Having Knowledge of, not Party to, Transaction, Admissible.
    An entry or memorandum in a book or in any other form made in the usual course of business at the time of the transaction, by a person legitimately connected with such transaction, not a party to the suit, but who is shown to have means of knowledge of the fact recorded, and it appearing that he has no interest in misrepresenting or misstating the facts, is admissible in evidence.
    [Syllabus by the court.]
    Error to Richland common pleas court.
    Cummings, McBride & Wolfe, for plaintiff in error:
    Delivery. Mobile Fruit & Trading Co. v. McGuire, 81 Minn. 232 j[83 N. W. Rep. 833]; English v. Commission Co. 57 Fed. Rep. 451 [6 'C. C. A. 416; 15 U. S. App. 218]; Bull v. Robison, 10 Exch. 342; Mann-v. Eversion, 32 Ind. 355; Mee v. McNider, 109 N. Y. 500 [17 N. E. Rep. 424]; Lord v. Edwards, 148 Mass. 476, 478 [19 N. E. Rep: 343; 2 L. R. A. 502; Í2 Am. St. Rep. 581]; Benjamin, Sales Secs. 127, 144 and 147.

      C. H. Workman, for defendant in error:
    On both reason and authority in the delivery of goods to a common carrier the consignor is bound to take every precaution to insure the safe delivery of the goods to the consignee. Benjamin, Sales (4 ed.) Sec. 694; 21 Am. & Eng. Ene. Law (1 ed.) 530; Blackwood v. Packing Co. 76 Cal. 212 [18 Pac. Rep. 248; 9 Am. St. Rep. 199].
    Inconsequential objections to the charge. Pendleton Si. By. v. Stallmann, 22 Ohio St. 1; Elster v. Springfield, 49 Ohio St. 82 [30 N. E. Rep. 274]; Livingston v. Arnoux, 56 N. T. 506, 518; Abbott, Trial •Ev. 398.
   DONAHUE, J.

The action out of which this proceeding in error arises was brought in the common pleas court of this county by the Fruit Dispatch Company against Henry H. Sturges, to recover the contract price of a. car load of bananas, shipped from Baltimore, Maryland, to the defendant at Mansfield, Ohio, and the claim of the plaintiff is, that the fruit was to be delivered f. o. b., Baltimore, Maryland, and that the same was so delivered.

The defendant admits that the car load of bananas was shipped to him by the plaintiff at -the time alleged in the petition, and that the contract price therefor was $560, as stated in the petition, but defendant avers that the plaintiff wholly failed and grossly neglected to adjust the ventilators of the car in which the bananas were shipped;, failed and neglected to set the air traps of said car in such a way as. to admit a proper ventilation; failed to direct the railroad company-over whose line the ear was shipped with reference to the care of such fruit in the transportation, and failed to notify defendant of the time and place of shipment and of the carrier by whom the shipment was made, in time to permit the defendant to take proper precaution to protect the goods upon arrival; that the weather was unusually warm for that season of the year and by reason of the neglect of plaintiff' the entire car of fruit was ruined and' worthless when it reached Mansfield, Ohio, and that the defendant therefore refused to receive the' same.

There are but two questions of importance in this case. The first is as to the duty of the seller under the circumstances above detailed; second, as to the admission in evidence of a memorandum in writing made at the time of the transaction by a person not a party to the-suit, but who had personal knowledge of the facts recorded.

As to the first question, this court holds that delivering perishable goods in car load lots f. o. b. shipping point, means that the seller is; charged with the responsibility of properly loading the car and delivering it to the railroad company in proper condition. There the-responsibility of .the shipper ends, but if the shipper should fail in any particular in properly loading said car and delivering it to the railroad company in right condition, and by reason of which failure the goods are injured and destroyed in transit, the buyer is not bound to-receive the same, nor does the property in the goods pass to him until the obligation of the shipper is discharged with reasonable care and! diligence.

In this particular case the shipper took charge of the car and loaded it, and it was incumbent upon him to load the bananas properly and to see to it that the car was properly ventilated for the safety and preservation of the fruit, with regard to the distance it had to travel to reach its destination.

And that question of fact as to whether the shipper had properly done and performed all and singular the duties required of him with reference to the shipping of this perishable fruit,' and whether or not he had notified the defendant of the shipment, so that he in turn might give it prompt attention upon its arrival at its destination, were submitted to the jury, under proper, full and fair instruction, and the jury found in favor of the defendant, and, in our opinion, the evidence sustains that finding.

The law of contracts of sale of ordinary goods not perishable, the delivery to be made at place of purchase, does not and cannot apply to such a ease as this, for with goods of that character the seller’s duty would be fully discharged by delivering the goods sold to the common carrier in good condition, and no further duty or care would be required of him. But, with reference to perishable goods, the rule, of necessity, must be different, and it is sometimes entirely controlled by the custom, if there is an established custom, in reference to the care and handling of such goods. For instance, this record discloses that it is sometimes necessary to send a man in charge of fruit of this kind, and especially is this true when there is a large consignment of several car loads, so that the amount to be protected will justify the expense.

In this case, the plaintiff’s witnesses say that the consignment was not large enough to justify such expense, and, therefore, knowing that no man would be in charge of the car and no person would have authority or right to molest it or change its condition from the time it left Baltimore until it reached Mansfield, it was doubly important for the shipper to see to it that the ears should be in proper condition and properly ventilated for the preservation of this fruit when it was delivered to the railroad company for transportation.

It was also a question for the jury to determine whether reasomable care in that behalf would require that the shipper notify the consignee, by wire, immediately upon making such shipment, so that he might be prepared to take due precaution to protect the fruit upon its arrival. In truth, the whole controversy on this point is more a question' of fact than one of law, A simple statement of the law is, that the seller shall do that thing which is right and reasonable for the protection of perishable property to be delivered f. o. b. at shipping point. What these duties are must be determined from the nature of the goods and the usual, ordinary and customary manner of providing for their safety, and it is for the jury to say upon the whole evidence what these things are that will comply with the requirements -of the law, and whether or not the shipper has performed them.

Second, it is claimed that the introduction of the book, kept by a -witness named Foster, was prejudicial error.

It appears from the evidence that this was a memorandum in writing made at the time of the transaction by a person legitimately connected with such transaction, who had personal knowledge of what was therein written, although he is not a party to the suit. And it further clearly appearing that he could have had no interest in misrepresenting or misstating the facts, the admission of this evidence was not prejudicial error. Livingston v. Arnoux, 56 N. Y. 507, 518; Abbott, Trial Ev. 398.

We find no error in this record to the prejudice of plaintiff in error, and the judgment of the common pleas court is affirmed with cost and. cause remanded for execution.

Voorhees and McCarty, JJ., concur.

       Affirmed, no report, Fruit Dispatch Co. v. Sturges, 73 O. S. 351.


author: TAGGART, J.

text:
    BIAS OR PREJUDICE — COURTS.
    [Richland (5th) Circuit Court,
    January Term, 1906.]
    Donahue, McCarty and Taggart, JJ.
    State ex rel. Wulle v. Darius Dirlam.
    1. Revised Statutes 550 (Lan. 876) as to Affidavits of Bias ok Prejudice, is CONSTITUTIONAL.
    Revised Statutes 550 .(Lan. 876), providing for the filing, in certain cases, of affidavits of bias or prejudice against common pleas judges is not an attempt on. the part of the legislature to abridge the powers and functions of a co-ordinate branch of the government, and, is not, therefore, unconstitutional.
    2. Mandamus and Injunction will Lie to Restrain Hearing of Case by Judge after Affidavit of Prejudice Filed, if he Signifies Intention to Hear Same.
    The effect of the filing of an affidavit of bias or prejudice under Rev. Stat. 550 (Lan. 876), is to disqualify a common pleas judge from presiding at the trial of that cause, and his statement in open court that it is his purpose so to do, irrespective of the affidavit, will be sufficient ■ grounds for mandamus and injunction.
    [Syllabus approved by the court.]
    MaNdamus.
    Cummings, McBride & Wolfe, for plaintiff, cited:

      Wolfe v. Marmet, 72 Ohio St. 578-.State v. Babbits, 46 Ohio St. 178 [19 N. E. Rep. 437]; State v. Wolfe, 6 Gire. Dec. 118 (11 R. 591); Barclay v. Salmon, 9 Gire. Dec. 520 (17 R. 152); North Bloomfield Gravel Mining Go. v. Keyser, 58 Cal. 315.
    Darius Dirlam, for defendant;
   TAGGART, J.

This proceeding in mandamus and injunction is brought to require the defendant to refrain from hearing and to pass a certain cause pending in the court of common pleas wherein the relator is a party to another judge of this judicial district by reason of the fact that an affidavit of prejudice was filed in the action purporting to disqualify all the judges of the subdivision in which the county of Richland is situate.

The only questions necessary for the court to pass upon are: First, Is the affidavit which was filed in December, 1905, sufficient under the statute as construed in a recent decision of the Supreme Court; and second, Does the evidence show that the defendant, with knowledge of the filing of this affidavit, had the purpose and intention to go on and hear the case, notwithstanding the filing of said affidavit, and refused to pass the ease to another judge or permit another judge to hear said cause.

As to the first question, it is contended by the defendant that the force and effect of the affidavit is to interfere with’ the proper administration of justice; the effect of Rev. Stat. 550 (Lan. 876), is an attempt on the part of the legislature to abridge the power and functions of a co-ordinate branch of the government; that the legislature cannot so abridge nor interfere with the judicial and that in consequence thereof, he was entitled to disregard the filing of this affidavit.

'While the question may be a serious one, yet we are inclined to follow what we believe to be the safer rule of holding that the statute is not an abridgment of the rights or powers of the judiciary by the legislature, but simply a provision for a litigant to have what is in substance a change of venue, instead of transferring the case to another jurisdiction, it retains the case in the jurisdiction where the action is brought, but provides for another judge to hear and determine the cause. This statute, as we view it, does not rob the court of any of its powers or jurisdiction to hear and determine the cause, but simply provides that another judge than these disqualified by the statute shall preside in the hearing of the case when tried.

True, in the opinion in Wolfe v. Marmet, 72 Ohio St. 578, 583, the judge announcing that opinion declares that the question of the constitutionality of this statute is still a mooted one -in Ohio, and one of serious import, and it is perhaps true that the question has never been fairly and fully determined by our Supreme Court, yet the Supreme Court of Ohio has, in various other cases, particularly State v. Shaw, 43 Ohio St. 324 [1 N. E. Rep. 753], given effect to this statute, and has held that mandamus would lie to compel the clerk to proceed under it, so that the legal effect of such a decision by the Supreme Court is, that the statute itself is constitutional; otherwise no such writ ought to have been allowed, notwithstanding the direct question was not raised in the case, yet it was necessarily there, and if the statute was void and unconstitutional, the order was clearly wrong. So that a court of inferior jurisdiction ought not to hold that the Supreme Court did not understand the effect of its decision, and did not give due consideration to all questions in the case whether they were raised upon paper or not, and we think, from the reading of these cases, that judicial subordination requires us to hold this statute constitutional, and that the Supreme Court only, should disturb the effect of these decisions. In our opinion the affidavit fills the provisions of the statute and is sufficient.

As to the second question, the testimony in the case, and notably the statement in open court of the defendant that it was his purpose and intention to hear the case and determine- the same irrespective of the .affidavit, places beyond a peradventure and sets at rest all questions involved in the second branch of this case. We think that upon the filing of this affidavit the judges of the subdivision in which the •county of Richland is located, were disqualified from hearing this case, ■and the only duty in respect to such case upon being informed of the filing and existence of the affidavit, was to pass the case, and refuse and decline to hear * the same. By the provisions of the statute, it was the duty of the clerk to certify the filing of this affidavit to the presiding judge unless he were one of those disqualified, in which event the same was to be certified to some other judge of the district.

It being admitted by the defendant that he refused so to pass the •case and unqualifiedly insisted upon hearing the same, we 'think that a peremptory writ should issue commanding and requiring him to pass .said case, and not hear and determine the same.

Donahue and McCarty, JJ., concur.


author: COOK, J.

text:
    ADVANCEMENT — DEED OF GIFT — DEED OF PURCHASE.
    [Mahoning (7th) Circuit Court,
    October Term, 1905.]
    Cook, Burrows and Laubie, JJ.
    Samuel A. Cowden v. Hugh T. Cowden et al.

      1. Deed oe Gift from Parent to Child Presumed an Advancement.
    As between parent and child, a deed of gift from the former is presumed to be made by way of an advancement and the burden is upon the. latter to show the contrary. ’
    .2. Statement in Deed between Father and Daughter, that Consideration' was One Dollar is Conclusive.
    When the consideration stated in a deed for land made by a father, to a daughter is one dollar, the daughter takes the land as purchaser, and parol evidence is not admissible to show that the consideration was not paid, and that in fact the consideration was natural love and affection.
    [Syllabus by the court.]
    Appeal from Mahoning common pleas court.
    Murray & Koonce, for plaintiff.
    B. F. West and G. F. Arrel, for defendant'.
   COOK, J.

This action is for the partition of real estate; and the question in dispute between the parties relates to the title of twenty-five acres of The land sought to be aparted.

April 17, 1888, Samuel M. Cowden, now deceased, his wife joining with him, executed and delivered to his daughter, Julia C. Lawrence, a deed in fee simple with covenants of general warranty for the twenty-five acres. The consideration expressed in the deed is “one dollar and other considerations herein expressed.” And written upon the margin of the deed is, “Second consideration, the use of a certain lane to get to the residue of the real estate of the grantor.” This so-called second consideration is of no importance in the determination of the questions involved, and we dismiss it without further comment..

At the time of the execution of the deed, the grantor and his wife had several children, who are still living, and the grantee had a husband and two children, who are also still living.

The claim of the plaintiff and the other brothers and sisters of Mrs. Lawrence is, that this deed was made as an advancement upon the part of the father to his daughter, and that she should account in this action for this twenty-five acres in the division or sale of the residue of the real estate, which is about two hundred and ninety acres..

The claims of Mrs. Lawrence are:

First. That it was not an. advancement, — never so intended,— but on the' contrary was an absolute gift upon the part of the father1 to her.

Second. That the consideration expressed in the deed was a valuable one, and that her title came by purchase, and that therefore the other heirs have no interest in the twenty-five acres.

We do not propose to review the evidence, as the conclusion at which we have arrived makes it unnecessary, except to say that we are not informed whether or not the one dollar was paid, there being no evidence upon that question.

If we treat this deed as a deed of gift made upon the consideration of love and affection, the first question that arises is, Upon whom does the burden of proof rest to show whether it was an advancement or not ?

In 1 Am. & Eng. Enc. Law (2 ed.) 765 and 766, the text reads:

“A voluntary conveyance of land from father.to child, expressed in the deed to be in consideration of love and affection, is presumed to be an advancement.
“The same is true of a conveyance to the child by an outside party, the consideration being paid by the father.
“But this presumption is rebuttable.”

The text is supported by many authorities, and' while there are some decisions to the contrary, the doctrine of the text seems to be the better holding.

In the case of Tremper v. Barton, 18 Ohio 418, the syllabus reads:

“Where a father purchases and pays for land, and directs the conveyance to be made to one of his children, the presumption of law is, that it is intended as an advancement; but this presumption may be rebutted by proof.”

Although at that time the syllabus was not the law of the case, it is supported by the opinion of Chief Justice Hitchcock, who does not declare it to be a “presumption of law”, as stated in the syllabus but a presumption of fact.

It will be observed, however, that the consideration of this deed does not purport to be for natural love and affection, but for one dollar. Although natural justice to all the children would seem to dictate that the property of the father should be divided equally among them, yet we are fully persuaded from the evidence that he intended Mrs. Lawrence to have the twenty-five acre tract in addition to what she would be entitled to at his death, dying intestate.

The next question is: What effect shall be given to a deed of this character from a father to a daughter that expresses a consideration of one dollar? Is it a deed of gift, or does the grantee take the land by purchase? If a deed of purchase, then no question of “advancement” is involved.

A conveyance upon a valuable consideration, as between the parties and their representatives, makes the conveyance one of purchase, while a deed of gift from an ancestor creates a different estate in the grantee. In the latter case, the land is ancestral property subject to a certain line of descent; in the former it is not ancestral property, and the line of descent is different by statute.

In this case, if it is a deed of gift, in the event of the death of Mrs. Lawrence and the two children before the death of the husband, then the tract of land would go to the husband for life, with remainder to her heirs; if a deed of purchase, the land would go to the husband and his heirs absolutely.

What character of title, then, does a mere nominal consideration of one dollar expressed in the deed, as between the parties and their representatives create in the absence of fraud; and where the rights of third parties are not involved.

There is great contrariety of decisions in the different states upon this question.

In Hatch v. Straight, 3 Conn. 31 [8 Am. Dec. 152], it was held:

“A deed from a parent to a child in consideration of love and •affection is presumed to be an advancement. Though this presumption may be rebutted, yet in a deed of lands from a father to a son, in consideration of love and affection, and the further consideration expressed of five dollars, will not be sufficient to rebut the presumption.’”

Chief Justice Hosmer, in the opinion, says:

“This brings me to the principal question in the case, which is, whether anything appears to rebut the presumption of advancement. The deed to Henry A. Straight is expressed to be ‘in consideration of love and affection, and of five dollars. ’ It would be ascribing too much importance to this nominal consideration' to consider it as repelling the proof of advance portion. The principle of equity on this construction would be almost as much violated as if the consideration had been purely voluntary. Had the sum received by the grantor been a cent merely, it would be serious trifling to contend that the nature and effect of the provision was changed by it. Between this sum and five dollars, the four hundredth part in value of the property conveyed, there is no material difference.”

In the case of Meeker v. Meeker, 16 Conn. 383, it was held:

“Where the consideration expressed in a deed made from a father to his son was two thousand dollars, * * * parol evidence was •admissible to show, that nothing was in fact paid, but that the conveyance was made as an advancement to the son.” Devlin, Deeds Sec. 829.

On the other hand, it is stated in Devlin, Deeds See. 810:

“The recital in the deed that pecuniary consideration' has been paid so far as the legal effect of the conveyance as a deed of bargain and sale is concerned, is conclusive. By this is meant simply the effect of the deed aside from any question of fraud.”

The text in this section is also supported by many decisions and one that is curious would be interested in noticing the directly opposed decisions in the different states.

With the law so ■ differently- settled in the different states the inquiry naturally is, What is the law of this state upon the question or has it been determined at all?

We are not unmindful of the decisions in this state, that a deed absolute upon its face may be shown to be a mortgage, or that a grantee holds the property upon an express trust; but this is put expressly upon the ground that it would be a fraud in equity for the grantee to claim otherwise. In the case of Mathews v. Leaman, 24 Ohio St. 615, which is the leading case upon the question, Judge White, in the opinion, says, page 623:

‘ ‘ Our statute of frauds omits the seventh, eighth, and ninth sections in relation to trusts contained in the English statute. We do not -deem it necessary now to consider the effect of such omission. The fourth section of our statute is taken from the' third section of the English statute, and in terms has reference to the assigning or granting of legal interests. The fifth section of our statute corresponds with the fourth section of’ the English statute, and prohibits the bringing of actions in the cases specified.
“Although 'equitable rights and suits in equity are not named, courts of equity, equally with courts of law, are bound by the statute, insofar as it is applicable to the peculiar jurisdiction exercised by those •courts.
“Fraud, and in the absence of any other adequate remedy, is one of the principal grounds of equity jurisdiction; and the doctrines of courts of equity in regard to trusts, grow largely out of fraud, expressed or implied.
■ “It is said, ‘Fraud in equity is an exception to every rule,’ and the principle has often been announced by courts of equity, that the statute of frauds was not made to cover fraud.
“In the present case, the trust does not arise on the mere agreement, but on the conveyance of the property, for which the trust assumed was the sole consideration.
“The trust is not raised so much because of the fraud in the original acquisition of the property as in the subsequent refusal to execute the trust. Page v. Page, 8 N. H. 187, 194, Tiffany & Bullard, Trusts 189. As said by Bell, J., in Morey v. Herrick, 18 Pa. St. 123, 128, the attempted denial of the confidence is such a fraud as will operate to convert the purchaser into a trustee ex maleficio.”

The reason of the rule does not apply in a case of this character. This is a case where it is proposed to change the express and absolute provisions of the deed, and not a case to prevent a fraud from being perpetrated by the vendee, standing in a position of confidence.

There is no question of fraud involved in the ease. The vendor stamped upon the deed by the stipulation of the receipt of one dollar that it was a bargain and sale, a deed of purchase and not a deed »of gift, and the grantee so accepted it. To permit it now to be changed or modified as proposed by parol would be to change and contradict the deed, and not to enforce a rule preventing the vendee from committing a fraud by holding that which in good conscience she is not' entitled to.

However, is the direct question we have under consideration an open one in this state? If not, then it is useless to take further time to discuss it; and we are of opinion that it is not an open one.

In the ease of Brown v. Whaley, 58 Ohio St. 654 [49 N. E. Rep. 479; 65 Am. St. Rep. 793], it is held:

“A deed of real estate from a father and mother to their daughter,, ‘in consideration of our love .and affection for our daughter, and in consideration of the dutiful obedience and faithful services to us of our daughter and in further consideration of one dollar to us in hand paid by our skid daughter,’ is not a deed of gift, and the title acquired under such deed comes to the daughter not by deed of gift but by purchase.” ,

Chief Justice Burket, in the opinion, after setting forth that under our statute, providing, as to deeds of gifts, “Regard is had to the title, which means the legal title and not an equitable title,” says,, page 666.

“Looking now at the deed in question in this case, and having regard to the legal title, uninfluenced by equity, did the title come to Cinderella by deed of gift or by purchase? The deed says, that the consideration was love and affection for the daughter. If this was all, it would clearly be a deed of gift. But the deed further recites, that it is in consideration of the dutiful obedience and faithful services to us of our said daughter, and in further consideration of one dollar, to us in hand paid by our said daughter. Standing alone, these considerations of obedience, services and one dollar, would clearly make the title one by purchase. How then shall it be solved when the considerations are thus mixed? The title came either by deed of gift or by purchase. It could not come by both; and legally speaking, it could not come partly by deed of gift and partly by purchase. The law as above quoted from Walker solves the question. He says, that to make ancestral property — title by deed of gift — there must be no other consideration than that of, blood. Here there was other and additional consideration, and therefore the title came not by deed of gift. As the title came not by deed of gift, it came by purchase, and at the death of Cinderella passed to and vested in her husband, the plaintiff in error, in fee.
“The dutiful obedience and faithful services of the daughter may-have been rendered under such circumstances as to create no legal obligation against the father to pay for the same, even though of' great value to him; yet when he voluntarily reeognized their value by making them the consideration, in part at least, for the conveyance of a tract of land, he could not after the contract, as evidenced by the deed, as executed, and the deed delivered, annul the same by pleading that he was not legally bound to compensate her. He might well have interposed such plea while the matter was executory, but after being fully executed such plea can avail nothing. "What he could not do while living, his heirs cannot do after his death. They stand in his shoes.
“Moreover, the consideration of one dollar alone, is sufficient to support the deed as between the parties, and to give it the character of being upon a valuable consideration, as contra-distinguished from a good consideration. ’ ’

In the case of Groves v. Groves, 65 Ohio St. 442 [62 N. E. Rep. 1044], it was held:

“Where the consideration expressed in a deed of conveyance is a valuable one, the title comes by purchase, and it' is not competent to show by parol, that in fact the title came by deed of gift, and thereby changed the line of descent.”

In this case the deed was from a father to his son. It recited as the consideration the sum of $9,165, and acknowledged receipt of the same; but in fact no consideration whatever was paid, and the deed was a mere gift from the father to the son. The heirs proposed to show ■that fact by parol, but the court held it could not be done.

In the opinion, Judge Burket says, page 448:

“In this case the deed expresses a money consideration, and the •title is therefore on the face of the deed a title by purchase. The brother and sister of the grantee now seek to change the character so impressed upon the title by the grantor and grantee, and to impress a new character thereon, that of a deed of gift. They stand as heirs, and seek to take by inheritance. They pay nothing, and are what are known in such cases as volunteers. They are therefore bound by the acts of their' ancestors in relation to the property, which they seek to inherit. ‘The general rule is, that all parties to a deed are bound by the recitals therein, and they operate as an estoppel, and binding both parties and privies in blood, in estate and in law.’ 4 Kent 523.
“The same was held by this court in Patterson v. Lamson, 45 Ohio St. 77 [12 N. E. Rep. 531]. The character so impressed upon the title by the parties to the deed, adheres to that title, becomes a part of the inheritance, and the heirs are bound thereby; and they cannot take from the title a character which it has, nor give to it a character which it has not.' To do so would be to vary and contradict the deed by parol, and this cannot be done. It has often been held in this state, and elsewhére, that when a valuable considerable is expressed in a deed, it is not competent to show by parol that the deed is founded upon a good consideration. And that when a good consideration is expressed, it cannot be shown by parol that the consideration was a valuable one. Vail v. McMillan, 17 Ohio St. 617; Burrage v. Beardsley, 16 Ohio 438 [47 Am. Dec. 382]; Steele v. Worthington, 2 Ohio 182; Walker, Am. Law 445.
"But while it is true that the nature of the consideration, whether good or valuable, cannot be changed by parol, it is equally true that a different consideration from that expressed may be shown, if not inconsistent with, or repugnant to, the expressed consideration. Thus, it may be shown in favor of creditors, that a deed founded upon an expressed valuable consideration, was in fact without any consideration, and therefore liable to be set aside. And a deed founded upon a good consideration only, will usually be set aside in favor of previous creditors; but this is a very different thing from proving a good consideration when a valuable one is expressed, and thereby changing the‘ line of descent.”

This surely should be the true construction: As a question of first intention, it would seem as if there could not be two opinions when the controversy is between the parties or their privies. The changing of the consideration from a valuable to a good one, or from a good consideration to a valuable one, in this state, changes the character of the estate entirely; it changes the line of descent of the land conveyed, which is a very important matter in the deed. Can a deed, the most solemn of written agreements, as to such an important matter- be changed by parol? If so, then why may not any written contract be changed and varied?

A decree will be entered that Julia C. Lawrence has the absolute title to the twenty-five acres of land, and the plaintiff and other defendants, her brothers and sisters, have no interest in it whatever;

Burrows and Laubie, JJ., concur.