text:
    ACTION FOR. RECOVERY OF UNPAID STOCK SUBSCRIPTIONS.
    Circuit Court of Cuyahoga County.
    Charles W. Smith v. Union Savings & Banking Company et al.
    Decided, January 29, 1912.

      •Joinder of Causes of Action — Summons to Another County for Defendant Improperly Joined — Summons Quashed.

    To a 'cause of action brought by a stockholder for the collection of unpaid subscriptions to stock, said cause of action purporting to be for the benefit of the corporation, its creditors and all its stockholders, there can not be joined a cause of action in favor of the plaintiff as an individual against a resident of another county, for fraud in inducing plaintiff to buy his own stock. Summons in such case on the resident of another county will be set aside and quashed.

      A. E. McKisson, for plaintiff in error.
    Stearns, Chamberlain & Royan, contra.
    Winch, J.; Marvin, J. and Niman, J., concur.
   The question in this case is whether service- upon the defendant, the New First National Bank of Columbus, Ohio, was properly set aside and the summons quashed by the common pleas court.

A determination of this question requires an examination of the issues tendered by the pleadings, for if the action is for money only, Section 11281 of the General Code was not complied with, there being no indorsement on the summons of the amount claimed in the petition for which judgment was asked; and, if said defendant was not a necessary party to a complete determination of the case, the plaintiff was not entitled to have a summons issued to any other county, under the provisions of Section 11282 of the General Code,

The- petition purports to set forth a cause of action in favor of a stockholder of a corporation for the collection of- unpaid subscriptions to stock.

It sets forth that various defendants; among them one E. W. Christy, subscribed for various numbers of shares in the Union Savings & Banking Company, a corporation under the laws of Ohio, with its principal office and place of business in the city of Collinwood, Cuyahoga county, Ohio, for which shares said defendants' agreed to pay, respectively, the sum of $100 per share; that without payment of said subscriptions, the company caused certificates to be issued to said subscribers representing that each had paid fifty per cent, of the face value of his shares, whereas, in fact, they had made no payments therefor; that the company had failed, became insolvent and was in the hands of a receiver who was administering the assets of the company for the benefit of the creditors. That the assets in the hands. of1 the receiver were wholly insufficient to pay its liabilities, which' were so large that it would require the payment by all the stockholders, including the plaintiff, of their entire unpaid subscriptions to liquidate said liabilities. That the directors of the-corporation had refused to make calls for the payment of said subscriptions. and that the receiver had refused to take any steps to collect the same.

The plaintiff alleges that he brings his action for the benefit of the creditors of the corporation, and his prayer is that the court ascertain who are the owners-, legal and equitable of its stock, and require them severalty to pay the unpaid subscriptions on their stock, the fund thus obtained to be administered for the benefit of the corporation.

Passing no opinion upon the sufficiency of this petition, it is clear that though the petition asks a money judgment against the defendant stockholders, still the action attempted to be set up is one which requires the exercise of equity jurisdiction, for the plaintiff does not ask a money judgment in his own behalf, but only the incidental relief of having payment made of the debts of a corporation, in which he is a stockholder.

Tn this respect the case at bar is distinguishable from the ease of Smith. Receiver, v. Johnson. 57 O. S. 486 where the action was brought by a receiver, who had succeeded to the rights of the corporation, and .was held entitled to maintain an action at law to collect unpaid subscriptions. The distinction here applied is mentioned by Judge Spear on page 488 of the opinion in the case cited.

This does not settle the question, however, for the New First National Bank was not made a defendant to the original petir tion, but was brought in by a subsequent pleading.

The plaintiff, some time after the case began, filed what he denominates an answer and cross-petition, making one Charles W. Loomis and the New First National Bank of Columbus, Franklin county, Ohio, parties defendant in the cause, and it is on this pleading, that the summons, subsequently quashed, was issued for said bank.

Adopting in this pleading the allegations of his petition, as he says, "so far as the same may be necessary," the pleader proceeds to set forth that some 250 shares of the stock of the Union Savings & Banking Company was issued without payment therefor, to the defendant E. W. Christy, that said stock was acquired by himself and said Charles W. Loomis; that at the time they acquired said stock, "said C. W. Loomis, in common with the officers and agents of said national bank,, represented and said that all of the face value of said stock had been paid in full, and that there was nothing due and unpaid thereon; that said banking company was in a flourishing condition and making money; that said stock was worth par; that it was ‘as good as wheat;’ that said banking company was solvent and making money, in order to induce this cross-petitioner to purchase.a one-half interest in said capital stock and pa.y for the same."

Then follow allegations as to the falsity of said representations. that Loomis and the officers and agents of the national bank knew said representations were false when they made them: that plaintiff relied upon said representations, etc. Tn fine, the plaintiff, if he makes out any case at all against said national bank, sets forth one which would entitle him to damages for the alleged fraud committed by said national bank, when he purchased said one-half interest in said 250 shares of stock.

There is no allegation in tins pleading that the national bank was ever the owner of said 250 shares of stock.

The prayer of the pleading is that:

“Charles W. Loomis and the New First National Bank of Columbus, Ohio, may be found to be jointly and severally liable on the unpaid balance of the $25,000 of capital stock of the Union Savings & Banking Company, a one-half interest in which was originally sold to this cross-petitioner as aforesaid; and further, that whatever judgment may be found due on the said $25,000 of stock be first ordered to be paid )by said Charles W. Loomis and said the New First National Bank of Columbus, Ohio, either severally or jointly as aforesaid; and for such other and further relief by reason of the premises as the nature of this case may require.”

In other words, the pleader asks that the national bank be compelled to pay what he himself, as assignee and transferee of the stock, is liable for, under Section 8674 of the General Code, be-i cause said national bank by fraud induced him to buy said stock,

This issue has no connection with the issues raised by the petition or the relief prayed for therein. It is a personal right claimed to exist in favor of Smith, an individual, and nbt for the benefit of the creditors of the corporation for whom he brought the o'rigina.1 action. The creditors might, perhaps, hold a former owner of the stock, if Smith were insolvent, hilt there is neither an allegation of Smith’s insolvency nor that the national bank was a former owner of the stock. The plaintiff can not inject this independent cause of action against a resident 'of Franklin County into a case pending in Cuyahoga county with which it has no connection, and thus obtain a right to have summons issued in Franklin county.

The action outlined in said cross-petition was not rightly brought in Cuyahoga county, within the purview of Section 11282, General Code, and so summons on it could not issue to any other county.

■ Tt follows that service of summons in Franklin county was properly set aside, and the judgment of the common pleas court is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    INJUNCTION AGAINST CONSTRUCTION OF LEVEE DENIED.
    Court of Appeals for Coshocton County.
    Mathew Crawford v. John I. Miller, Ross Hamilton, Gilbert J. McKee and the County Commissioners of Coshocton County, Ohio.
    Decided, March, 1914.

      Water and Water-Courses — Means for Protection Against Floods— Right of State to Construct Levee — County May Join in the Work — • ■ Property Owner, Fearing Damage to His Lands, Has Adequate Remedy at Law — County Commissioners Joint Tort Feasors — Sections 455, 457, 458, 459 and 7483, General Code.

    1. Under favor of Section 7483, county commissioners have the right to join with state officers in the construction of a levee for the protection of state property from damage from floods, where by so doing they are able to accommodate the public by protecting a county road from overflow and injury.
    2. A property owner whose lands will probably be damaged by the construction of such a levee has an adequate remedy at law against the county commissioners, who in such a case would be joint tort feasors; and injunction does not lie upon the petition of such land owner against proceeding with the work.
    Appeal from Court of Common Pleas.

      Thomas H. Wheeler and James Glenn, for plaintiff.

      Timothy S. Hogan, Attorney-General, W. J. Wieland, Joseph L. McDowell and George D. Klein, Prosecuting Attorney, cited on behalf of the defendants:
    (1) That plaintiff has an adequate remedy at law: Hosher v. County Commissioners, 14 C.C.(N.S.), 198; 50 Ohio'St., 628; 76 Ohio St., 529; 32 Ohio St., 414; Section 2408, G. C.; 38 Cye., 485, 590; Rice v. Collidge, 121 Mass., 393; Taylor Water Co. v. Dillard, 9 Tex. Civ. App., 667; Pickerill v. City, of Louisville, 125 Ky., 213; McGarry v. West Chicago Street Ry., 85 111., 610; St. Louis Bridge Co. v. Niller, 138 111., 476; Humphreys v. Union Springs R. R. Co., 65 S. E., 1051; Richmond v. Gallage Mills Co., 102 Va., 165; Brown v. City of Webster, 115 Iowa, 511; Article I, Section 19 of the Ohio Constitution; Green v. State, 73 Cal., 29; Simonson v. Richardson, 2 N.P. (N.S.), 170.
    (2) Injunction does not lie: Section 22, High on Injunction (4 Ed.); Spangler v. City of Cleveland,. 43 Ohio St., 526; Cincinnati v. Bowman, 1 Handy, 246; Potter v. Schneck, 1 Biss. (U'. S. C. C.), 515; Batsch v. Kinsinger Iron Co., 15 Ohio Dec., 30; Turnpike Co. v. Commissioners, 7 Ohio Dec., 509; Attorney-General v. Perkins, 2 Dev. Eq. (N. C.), 58; Hall v. Reed, 40 Mich., 46; Bigelow v. Hartford Bridge Co., 14 Conn., 565; Ruge v. Apalaehocalo Oyster Co., 25 Fla., 656; C. & D. Ry. Co. v. Canal Co., 1 C.C.(N.S.), 146; Crawford v. Rambo, 44 Ohio St., 279; Cooper, v. Hall, 5 Ohio, 320; McElroy v. Coble, 6 Ohio, 187.
    (3) Defendants are required to anticipate ordinary and not extraordinary floods: Crawford v. Rambo, 44 Ohio St., 279; Welty v. Vulgamore, 1 C.C. (N.S.), 553; Farnham on Waters and Water Rights, 361; Bryston Hydraulic Co. v. Boyer, 67 Ind., 236; City of Madison v. Boss, 3 Ind., 236; Eagan v. Central Yt. Ry., 81 Yt., 141; Cooper v. Williams, 4 Ohio, 253; Phila., W. & B. Ry. v. Davis, 11 Atl., 822.
   This action was brought by the plaintiff against the above named defendants, to obtain a temporary restraining order restraining the defendants and each of them from building, erecting or constructing a levee as described in the petition, until the final hearing of this cause, and upon the final hearing a perpetual injunction be granted as prayed for in the petition.

The plaintiff alleges that he- is the owner of the real estate described in the petition; that the lands are farming lands of great value and adapted to the growing of corn, wheat, grass and other farm crops.

The defendant, Gilbert J. McKee, is the owner and in possession of the land described in said petition, and which land adjoins the lands of said plaintiff on the east and border on the Walhonding river hereinafter mentioned.

Plaintiff further avers that his said lands are bounded on the east by the land of said Gilbert J. McKee and on the south by the Walhonding river and Walhonding canal, which canal was abandoned by the state of Ohio about the year 1896.

■..'The defendants, Henry Clark, J. C. Crile and J. H. Elder, are.the duly qualified and acting county commissioners of Coshoeton county, Ohio.

■The said Walhonding river has an uninterrupted flow along its natural watercourse except for a dam in said river heretofore constructed and maintained by the state of Ohio and the department.of .public works of said state of Ohio. Said dam is known as the Six Mile Dam in said Walhonding river. The abutments erected at each end of said dam as a protection and support therefor are several feet higher than thé top of said dam, to-wit, about 12 feet, and the plaintiff’s said land lies north and west of said dam; and said river flows in an easterly direction along said plaintiff’s said land. The defendants, John I. ■Miller, as superintendent of the department of public works of the state of Ohio, and Ross Hamilton as superintendent of the construction of ia certain levy, as officers of the department of public works of the state of Ohio, and Henry Clark, J. C. Crile and J. H. Elder, as commissioners of the county of Coshocton, Ohio, threaten and are about to erect and will build and construct a levy from the north abutment of said dam in a northwesterly direction across- the lands of the said Gilbert J. McKee to a point on the southeast corner of the lands of said plaintiff, and will so construct said levee unless restrained by this court. Said levee so to be constructed by said defendants will extend to a height of four and three-tenths feet above the plaintiff’s said lands at its lowest point; in case of a flood or sudden rise of the waters of said river it will cause said river or a part thereof to overflow plaintiff’s said land before the same will flow over the levee erected by said defendants, and said levee will obstruct the natural flood channel of said river and cause said river to flow in a new and different flood channel on and over the lands of the plaintiff; that said defendants in constructing said levee are doing so without due process of laAv, without .any license, sufferance, consent or agreement, contract or grant with or from the plaintiff, who is the owner in fee simple of said premises; and said defendants are so-threatening to overflow and prepare said new flood channel without securing the right so to do by any process of law, and .without making or paying to the owner thereof any compensation therefor by placing on it in the event of a flood in said river the burden of furnishing a channel for said flood water to pass through and over the land of said plaintiff, without said construction of said- levee, which will improve the' natural regular flow of said flood water, the land of the plaintiff would not be subbject to said burden. A large part of said premises that are now well suited for the growing of said crops and which is (and for a long time has been used therefor at great profit to the plaintiff, will by the erection of said levee be overflowed by the waters of said river and rendered unfit for growing corn, wheat, grass and other crops, and render said premises worthless for farm purposes; that the waters- flow on in their natural course over the depression where defendants threaten to construct said levee, it spreads out over a large tract of one-half mile in width and again returns to the channel of said river without overflowing the lands of plaintiff; that said levee is permanent in its character and will obstruct the. flow of the flood waters of said river in its natural flood channel and cause said waters to flow on and over said premises of plaintiff, to the irreparable damage of plaintiff; and plaintiff has no adequate remedy at law for the wrongs herein complained of.

The plaintiff prays that a temporary restraining order be allowed, etc., and upon the final hearing a perpetual injunction be granted, etc. A temporary restraining order was granted by the probate judge of Coshocton as prayed for. Motion by defendants to the common pleas court to dissolve and set aside said temporary restraining order was granted and the plaintiff appeals to this court. Thereupon the defendants, the county commissioners of said Coshocton county, filed their answer in which they say in substance that they admit that plaintiff is the owner of the lands described in the petition; that a part of the "Walhonding canal was abandoned as .alleged in the petition; that they, Henry Clark, J. C.- Crile and J. H. Elder, are the duly elected, qualified and acting commissioners of Coshocton county, Ohio. They further admit that a dam has been constructed and maintained by the state of Ohio as .alleged in said petition, and they deny each and every other allegation.

. Said commissioners further answering say that they have entered upon their journal an entry to the effect that one thous- and dollars be paid to the state of Ohio, and the state of Ohio is. to take care of a right-of-way for the levee proposed to be constructed by the state of Ohio; that said one thousand dollars be paid when the levee is completed; that said participation in the construction of said levee is considered by the. commissioners of. public importance,, and that if said levee is not constructed that-portion of the highway leading from Warsaw ito .Coshocton and beginning. on the Wilson lands and running south toward Coshocton will be greatly damaged. They ask that said action as to them may be dismissed • and that they be permitted - to carry out their part of .the construction-.of said levee. .

. The defendants, J..I. Miller and Ross. Hamilton, on October 13, 1913, filed.their joint answer alleging in substance that they admit the ownership of the lands by the plaintiff described in the petition. They say that a part of the Walhonding-canal was abandoned by act of the Legislature of the. state of Ohio about the year 1896, and the remaining part of said,-canal, is still maintained as a part of the public works of the state of .Ohio. They admit that the said defendants, Clark, Crile and J. H. Elder, are the commissioners of Coshocton county; that the state of Ohio has constructed a dam in the Walhonding' river in the vicinity of plaintiff’s lands; that said dam is a part of the public works of the state of Ohio and is maintained to secure a supply of water, for the Walhonding canal, which is owned and maintained by the state of Ohio; said dam has been constructed, used and maintained by the state of Ohio for such purposes for more than 21 years last past. They admit the abutments of said dam are' several feet higher than the top of said dam. They deny each and every allegation in said petition not herein admitted to be true.

The defendant, John I. Miller, is the duly appointed, aetine1 and qualified superintendent of the public works of Ohio, and as such superintendent has the charge and control of the maintenance and management of the dam mentioned in the petition •. ,and as such superintendent as the agent of the state of Ohio and to protect and maintain said public works of Ohio, he is proposing to construct, to repair a certain levy on the north bank of the Walhonding river extending' from the north abutment of said dam in ,a northwest direction for a distance of about 1695 feet. In such construction said John I. Miller is not acting in his individual capacity but as an official of the state of Ohio and under direction and authority of the General Assembly and of., the Constitution of the state of Ohio.. Said defendant, Ross Hamilton, is in the employ of the state of Ohio as superintendent of the construction of said levee. Defendants say for more than, twenty-one years last past the state of Ohio has constructed* used and maintained a levee as a part of the public works along the north shore of said Walhonding river from the north abutment of said dam in a northwesterly direction; that a part of this levee was destroyed and washed away by the extraordinary flood of March, 1913; that by reason of this damage of said flood to s_aid levee a large amount of the property of the state of Ohio, á large part of the public roads of Coshocton county, Ohio, and a large amount of farming lands situated north and northeasterly from said levee have been placed in jeopardy; that if this levee is not repaired before spring the property will be placed in danger and particularly by a sudden rise of the Walhonding river, which usually occurs in the spring months of each year, and said Walhonding river will ultimately cut a new 'channel through said farming land.

Defendants say that said proposed new levee proposed to be constructed is to be so placed that the new channel of said river at this point will be greatly widened and the width of said river will be at least doubled. That the top of the .proposed levee and the top of the former levee are of about the same level. The defendants specifically'deny that said proposed levy will cut off the flood channel of said river and cause said river to seek a new channel over plaintiff’s lands.

Plaintiff has an adequate remedy at law. They say that the floods of March, 1913, caused a large amount of damage of the public works of the state of Ohio throughout the state; that the department of public works was taxed to its utmost capacity to make such repairs as were immediately necessary; that it Was necessary to secure a specific appropriation of money from the Legislature to repair the levy herein mentioned; that the Legislature appropriated the sum of $10,000 to repair said levee; that in order to estimate the amount of money needed measurements and surveys had to be made and were made; that after said appropriation was allowed it was necessary to make plans and specifications to reconstruct said levee and a complete survey of the ground was made; that after said plans and specifications were proposed and approved advertisements for bids were inserted in newspapers as required by law and bids -received; that the bids so received were irregular and. exceeded the appropriation and were rejected; that thereupon new bids .were asked for .and said bids also exceeded the appropriation, and were therefore rejected.

Said measurements, sounding and surveys were made upon the land in question and were known to plaintiff and he made no objection thereto. Bids were advertised for in newspapers of general circulation in Coshocton county, Ohio, for said construction and it was generally known that said proposed levee was to be constructed, and plaintiff made no objection; that plaintiff has been guilty of laches and should not have the relief sought and prayed for in his petition.

The plaintiff files replies to the joint answer of- the defendant, John T. Miller, and others, also to the answer of the county commissioners, but they are in the nature of denials to the affirmative allegations of the answer. The plaintiff files an amendment to his petition, but these additional pleadings do not raise any new issues, and this brief reference to the replies and amendment to the petition are sufficient to present the questions arising in the case.

The case was submitted to the common pleas court upon the pleadings, evidence and ■ exhibits, resulting in a finding and judgment for the defendants, and the temporary restraining order theretofore granted was dissolved and the petition dismissed at the cost of plaintiff.

An appeal .was taken by the plaintiff to the court of appeals of this county and the same is submitted to the court on the pleadings, evidence and exhibits at the November term of said court.

.Voorhees, j.; Shields, J., and Powell, J., concur.

. This action is brought by the plaintiff against the county commissioners of Coshocton county and the representative of the state of Ohio, as superintendent of the department of public works of. the state, and Ross Hamilton, as superintendent of the ■ construction of the levee mentioned in the petition; to enjoin •them from constructing said levee. The object of the suit is to enjoin said commissioners and said officers of the department of public works of the state from making the improvements mentioned and described in the petition.

■ • To state ■ the ease more accurately, it is a suit against the state of - Ohio and the county commissioners of Coshocton county, to enjoin them from improving and protecting the-property of-the'state, and to enjoin the county commissioners from protecting some, or in-protecting at least one, of the public highways of the-county from danger and injury from flood waters in the Wallionding river.

At the very threshold of the investigation the first question that confronts us is, Can such a suit be maintained against the state 'or- its officers? It will be conceded, no doubt, that the state can not be sued in an action of this kind. If the state does a wrong or commits an act in improving its property, such as its canals, the remedy is not by injunction. But under Section 455 of the act of the General-Assembly of Ohio, passed March 5, 1913, and approved by the Governor March 19, 1913 (-103 Ohio Laws, page 125), wherein it is provided:

' ' “That when private property is injured by a break, leakage, overflow of a canal, slack water, pool, reservoir or other public work, or by the insufficiency or by the filling up -of a culvert thereof, or -by the washing away of earth caused by a dam under the control of the superintendent of public works, the owner of such property shall apply in writing to the superintendent of public works for damages within one year from the occurrence of the injury, but no such application shall be received after such period.”

. Sections. 457, 458 and 459 of said act point out the proceeding and remedy secured to the property owner, which shows the remedy is not by injunction and that the owner of property claimed to be damaged bas a remedy under the statute stated which gives him a complete and adequate remedy at law. If the state can not be sued, what effect has it in a case where there, are joint tort feasors, one of whom can not be sued? Does it change the rule of law that, where there is not an adequate remedy at law, resort can be had in a court of equity by way of injunction to prevent an act being done that is claimed to be an invasion of the rights of the party complaining?

In this case the county commissioners have joined the authorities of the state in constructing the levee contemplated. Their reason for so doing is to protect one of the public highways of the county from injury from the flood waters of ■•the Walhonding river at times of floods in the river.

The commissioners have the legal right to make levees or embankments to protect public highways. Section 7483 of¡ the General Code .provides when county commissioners shall build embankments, etc.: -

‘ ‘ When a principal public road in a county, except- a turnpike road over which tolls are collected, is subject to overflow or inundation so as to render it at any time unfit for public travel, or hinders free and necessary transportation, the commissioners of such county may repair or reconstruct said road by .changing the beds of small streams to avoid crossing, changing roads to avoid bridges when the public travel would be better accommodated, or build an embankment or levee sufficiently elevated above all such overflows or inundations; the expense ■ of such embankment, changes or levee shall be paid out of the money in the county treasury raised by taxation for road or bridge purposes.”

Under favor of this section of the General Code, we think the commissioners had the right to join the state officers in constructing the levee in question, if it would better accommodate public travel from the overflows or inundations of the.same from the flood waters of said river.

The fact that the state can not be sued, may render the county liable for any damage to the private owner of lands who is damaged by the improvement; or if the state is exempt,"this fact will not exempt' the commissioners from ■ liability to the party injured. If said improvement is wrongfully made by the commissioners, or, in other words, the remedy at law is not destroyed by such condition, it is contended by the plaintiff that by constructing this levee as planned and intended by the state, assisted by the commissioners, it will and has interferred with the flow of the waters of said river, and by interfering with the natural flow thereof, the lands of plaintiff are and will be damaged, and-to avoid such damage this action brought to restrain and enjoin the defendants from constructing or maintaining such levee or improvement.

The levee may not be in the nature of a permanent improvement, one that could not be removed if it were unlawfully constructed; neither is it a case where the damage to plaintiff’s land, if any, is complete when the 'improvement is completed. It is not a case of injury that could not be .abated by the removal of the levee. Then the question is presented, Is it such an action that the plaintiff would have an adequate remedy at law, under the act hereinbefore cited from Volume 103, Ohio Laws, Sections 455, 459 and 449?

The last section cited contemplates a trial by jury under certain conditions, but what right the plaintiff may have as to damages against the state for constructing this levee or whether he has. any right to damages against the state the court is not called upon to decide. The question here presented is as to the right of the plaintiff to maintain a suit for injunction against either the state or the county commissioners restraining them from constructing the levee mentioned in the petition.

That a court can not and will not interpose to control the discretion of public officers in the .absence of evidence of bad faith or corrupt and malicious motives is too well settled in Ohio to be controverted. We think the commissioners have the right to join with the state or to act alone in constructing this levee, acting in good faith for the purpose of protecting one of the public highways of the county. If it were necessary for the benefit of the public to construct this levée to protect the highway leading from Warsaw to Coshocton from the flood waters of the Walhonding river, the commissioners, under the section of the General Code above cited, have the right to do so. If by so doing the plaintiff should be damaged, the county may be liable and may be required to make him whole for whatever injury he has sustained by reason of the improvement. We think there is no question but the commissioners have the right to make or-to join the state in constructing and maintaining this levee across the flood channel of the Walhonding river at the place and in the manner proposed and intended by the officers of the state for the protection of the state’s property, including the dam in the river, known .as the Six Mile Dam, and if the commissioners believe the public highway described in .their answer will bé improved and benefited and protected from the flood waters, they have the right so to do, and they can not be enjoined from making the improvement or maintaining said levee.

We have been greatly aided in this discussion by the able and exhaustive brief of the Attorney-General and his assistants by giving the authorities cited therein touching the question involved in this action.

Without pursuing the discussion further, we are unanimous in the opinion that the plaintiff’s action for an injunction or restraining order as prayed for can not be maintained, and we find the issues in favor of the defendants.

The petition of plaintiff is dismissed at his costs and if the temporary restraining order as heretofore allowed is still in force the same is dissolved.


text:
    “JERKS” OF ELECTRIC CARS AN INCIDENT OF TRAVEL.
    Circuit Court for Hamilton County.
    The Cincinnati Traction Company v. Mary Brogan.
    Decided, February 8, 1913.

      Negligence — In the Operation of Electric Railway Oars — “Jerks” Where Not Due to Defects 'in the Track or Oareless Operation- Not Chargeable to the Company.

    Evidence of a “jerk” in the movement of an electric car does not establish négligencé where not shown to have been due to a defect • in the track or careless handling of the car, even though a witness . .. described the jerk complained of as “terrible.”

      Miller Outcall, for plaintiff in error.

      Kramer & Bellman, contra.
    Smith, P. J.; Swing, J. and Jones, J., concur.
   "We are'of the opinion that the evidence in the above action does not establish negligence upon the part of plaintiff in error in the 'operation of its car at the time the accident complained of occurred.

“The mere fact that a car gives a sudden movement when starting or stopping, is entirely consistent with the supposition that it was managed in a careful and prudent manner and does not raise a presumption of negligence.” Booth on Street Railways, Section 250.
“The possibility of an electric car giving a jerk is an incident of travel which every passenger must expect. To make out a case of negligence on the part of a defendant railway company in such a case the plaintiff must go further and introduce evidence that the jerk in question was due to a defect in the track or to the negligence in the operation of the car,”. McGann v. Boston Elevated Railway, 199 Mass., 446; Railway Co. v. Osborn, 66 O. S., 45; Craig v. Boston Elevated Ry. Co., 93 N. E., 575.

The use of the adjectives, “terrible,” etc., as descriptive of the kind of jerk were but conclusions of the witness.

The trial court therefore erred in not granting the motions of plaintiff in error to direct a verdict in its behalf.

Judgment reversed and judgment for plaintiff in error will be entered in this court.


text:
    LIABILITY FOR. INJURIES RECEIVED IN AN ELEVATOR.
    Circuit Court of Cuyahoga County.
    James Flynn v. Salina Wiltshire.

    Decided, February 5, 1912.

      Landlord and Tenant — Owner Liable for Faulty Original Construe-. tion — Also When Control Retained — Variance.
    1. When an elevator accident occurs as the result of original faulty construction the owner of the building may be liable, though . he has leased the building to a tenant..
    2. Where a landlord under his lease to a tenant retains control of an elevator and agrees to keep it in proper condition, he is liable for an accident resulting from the elevator getting out of repair.
    3. Where it can be done without surprise or injury, a case should be tried upon the evidence, and if objection be made that evidence is not admissible under the pleadings, the pleadings should be amended.at once and without terms.
    4. Where there has been a variance between pleadings and proof, and no amendment of the pleadings to conrform to the facts proved has been asked, ordered or made, the judgment will not be reversed unless it appear that by the variance the plaintiff in error was mislead to his prejudice.

      Reed, Russell & Eichelberger, for plaintiff in error.

      F. C. Scott, contra.
    Winch, J.; Marvin, J.. and Niman, J., concur.

      Dismissed in the Supreme Court, March 25, 1913, on motion of plaintiff in error at his costs.

   This was an action brought by defendant in error to recover for personal injuries received in an elevator accident in a building owned by James Flynn, plaintiff in error, and leased to the Flynn-Froelk Company, which was a defendant below, but is not a party to these proceedings in error.

It is doubtful if this court has such jurisdiction of the subject-matter of the case as will authorize it to review the judgment, for want of necessary parties. Jones v. Marsh, 30 O. S., 20.

However, we have examined the several assignments of error and give our views regarding them.

It is claimed that the petition made no allegation of negligence against James Flynn, merely stating that he was the owner of the building and that he had leased it to the Flynn-Froelk Company, who were in possession of the building, and consequently, of the elevator; that there is no allegation that Flynn retained any control over the elevator and that, therefore, under the adjudications in Ohio, no case was stated against him.

With this view we do not concur; the petition is susceptible of the interpretation' that the accident happened because of original faulty construction for which the owner would be liable, so that it complies with the rule stated in the third paragraph of l\he syllabus of the case of Shindelback v. Moon, 32 O. S., 264, and sets forth a case such as is referred to in the last paragraph of the opinion, on page 267:

“Hence it is that where, at the time of the lease, the propetry is in a ruinous or defective condition, and by reason thereof the injury happens, then the owner or lessee is liable generally, though there are cases which make the liability dependent upon the covenants of the lease.”

But, if we are wrong in our interpretation of the allegations of the petition, the next claim of error brings us to another aspect of the same question, so that another resolution of it is offered.

At the close of plaintiff’s evidence, whic’h tended to show that the accident happened because of original faulty construction, both defendants asked for the direction of a verdict in their favor.

Thereupon the plaintiff asked leave to reopen the case for the purpose, as he stated, “to put on proof as to the liability of James Flynn individually.”

This was permitted over the objection of Flynn. Thereupon the plaintiff put Flynn on the stand for cross-examination, and drew from him that under an oral lease with the Flynn-Froelk Company he retained control of the elevator and was to keep it in proper condition.

This evidence made him liable under the ruling in the case already mentioned, and others referred to in the decision in the case of Stackhouse v. Close, 83 O. S., 339.

Counsel for plaintiff in error conceded that it was within the discretion of the court to open up the case and permit further evidence to be introduced under the allegations of the pleadings, but he urges that this additional evidence was on an issue not made in the pleadings, and so should not have been admitted, or, if admitted, should have been afterwards withdrawn from the consideration of the jury, as requested by him.

The matter is ruled by statute.

Section 11556, General Code, -provides:

“No variance between the allegation in a pleading, and the proof, shall be deemed material, unless it has actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits. When it is alleged that a party has been so mislead, that fact must be proved to the satisfaction of the court. It must also be shown in what respect he has been mislead. Thereupon the court may order the pleading to be amended, upon such terms as are just.”

Construing this section Ihe Supreme Court, in the case of Hoffman v. Gordon, 15 O. S., 212, 218, says:

“The evident object of the code is to vest in the court a discretion, where it can be done without surprise or injury, to try the. case upon the evidence, outside of the pleadings and if objection be made, to allow the pleadings to be conformed to the evidence, at once and without terms. ’ ’

Here there was no surprise or injury. Flynn knew all the time the nature of his obligations regarding the elevator under his oral lease with his tenant. The record fails to show, as required by the statute, how he was mislead, and so we must presume. that he was not. True, he. objected at the time to the- introduction of this evidence, and the plaintiff neglected to ask leave to amend his petition to conform to this evidence, but he could have done so and been granted the leave.

What was first said about the uncertain character of the allegations of the petition is to be borne in mind here, for haying said allegations in mind it is not apparent that the variance suggested was material.

It was held in the case of Sibila v. Bahney, 34 O. S., 399, 408 :

‘ That the evidence at the trial should be confined to the issue, admits of no doubt. The rule is as inflexible since as before the code, that the allegations and .proof must correspond. But where the variance between the allegations and proof is such that the court would allow an amendment under Section 132 (G.- C. 11557), without costs, to conform the pleading to the proof, the variance can not be deemed so far material under Section 131 (G. C., 11556) as to justify a reversal of the judgment.”

See also Dayton Inn. Co. v. Kelley, 34 O. S., 345; and Benninger v. Hess, 41 O. S., 64.

In- the latter case, at page 69 of the opinion, tne court says:

“Where a judgment has been rendered, and there has been a variance between' the pleadings and the proof, but not such as to mislead the opposite party to his prejudice, and where there has been an omission in such case to conform the pleading to the facts proved, it will not be in furtherance of justice to deprive plaintiff of the fruits of the trial, by a reversal of the judgment in error.”

From this quotation and from the statute, it appears that a variance is not to be deemed material unless it “mislead the opposite party to his prejudice.”

We have already seen that Flynn was in nowise mislead to his prejudice by this variance.

See also Section 11364, General Code.

The trial court, at the conclusion of this additional evidence, dismissed the lessee defendant from the case and it went to the jury on the liability of Flynn alone. The dismissal of the lessee is complained of,,' as error on the ground that it was an intimation that the court believed the owner was liable.

Such is an unusual view to take of the matter and is not consistent with the failure of plaintiff in error to make the lessee a party defendant to these proceedings in error. However, as Flynn’s case was submitted to the jury on evidence tending to establish his liability, under a charge which we find, as a whole, was unobjectionable, we must assume that the jury confined itself to that evidence.

It is claimed that the court in the charge treated of the subject of contributory negligence of the plaintiff, which would be reversible error, for no such issue was raised in the pleadings, hut we have been unable to find a suggestion of that topic in the charge.

Some rulings on evidence are complained of. The plaintiff was permitted to ask Flynn whether he carried insurance on the elevator. This was permitted, possibly, as tending to show Flynn’s own conception of his control over the elevator. It was an unnecessary question, because he had already fully stated that under his lease he remained responsible' for the elevator. As he was not asked how much insurance he carried, we have concluded that the jury was in nowise biased against him by reason of the information it received on this subject.

Flynn was also asked, over his objection, whether immediately after the accident he made repairs to the elevator and he said he did. This question was competent as tending to show his control over it at the time of the accident, and not as tending to show that it was defective. The defect had already been proved.

We find no misconduct on the part of counsel for plaintiff in his argument to the jury. Counsel for Flynn himself asked what plaintiff’s counsel meant by a certain statement, and if he was doubtful of any objeetional meaning at the time, it is not strange that a reviewing court should find no prejudice in the remark.

Nor have we any means of determining that the verdict was excessive, as charged. Defendant introduced no evidence in his own behalf and the case went to the jury on uncontradieted evidence, warranting the amount of the verdict.

On the whole we are unable to certify that substantial justice was not done in the ease, and so the judgment is affirmed.


text:
    CHOICE OF A FORUM BY INJURED EMPLOYEES.
    Court of Appeals for Cuyahoga County.
    Joseph Bomgardner v. William Zilch, by His Next Friend.
    Decided, May 24, 1914.

      Recovery for Injuries — Under the Workmen’s Compensation Act— Choice of a Forum — Application for Compensation — Failure to Prosecute Claim — Construction of Rules of the Board of Awards— Section 1465-61.
    1. Where an injured employee of an employer who has paid into the ■ state insurance fund makes application to the state liability board of awards “for payment to him of money out of the state insurance fund,” and this is done on a blank sent to him for that purpose by the state board, styled “First Notice of Injury and Preliminary Application,” he will be held in so doing to have chosen his forum, and he can not thereafter maintain an action against his employer for compensation on account of the same injury.
    2. Failure to further prosecute the claim before the state board after having thus elected to pursue that remedy is not a bar to an allowance to him by the state board, inasmuch as that board is not bound by technical rules but has full authority to make an investigation in such manner as is in their judgment best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of the act.

      F. M. Secrest, for plaintiff in error.

      A. L. McGannon and A. E. Powell, contra.
    Grant, J.; Winch, J., and Meals, J., concur.
    Error to the court of common pleas.
   This is a petition in error which asks for the reversal of a judgment of the court of common pleas.

The parties here stand in the reverse order of their position in the court below, but they will in this opinion be designated as they were there.

The plaintiff, a minor, was in the employ of the defendant, and while so at work was injured by the operation of a circular saw.

The defendant had theretofore paid the premium required by the State Liability Board of Awards into the state insurance fund, and was then entitled to the protection designed by the statute to be given to employers under such circumstances, and the plaintiff in like manner had a right to share in the correlative benefits in that behalf.

Section 1465-61 of the General Code provides that where a personal injury is suffered by an employee, and such employer has paid into the state insurance fund, and in case such injury has arisen from the failure of such employer, or ,any of such employer’s officers or agents, to comply with any municipal ordinance or lawful order of any duly authorized officer, or any statute for the protection of the life or safety of employees, “then in such event, nothing in this act contained shall affect the civil liability of such employer, but such injured employee may at Ms option, either claim compensation under this act or institute proceedings in court for his damages on account of such injury.”

The second paragraph of the above section reads:

“Every employee, ivho makes application for an award from the State Liability Board of Awards, waives his right to exercise his option to institute proceedings in any court.”

The claim of the plaintiff was that he came to his injuries because the saw in question was left without a guard, contrary to statute. His ease therefore was brought within the purview of the insurance fund law, just quoted.

He accordingly undertook to exercise the option thus given to him by making out, signing and sending to the State Liability Board of Awards, on the day of his injury, a paper, the caption of which was as follows: “In the Matter of the Claim of William Zilch for payment to Him of Money Out of the State Insurance Fund.” Opposite to this caption, on the same page of the paper, are the following words and figures: “No. 5940. First Notice of Injury and Preliminary Application.”

Immediately below these, on the paper in question, are the following words:

“I hereby make application to the Industrial Commission of Ohio for the payment of money out of the state insurance fund on account of the injury to me hereinafter described, and hereby request that all forms and blanks necessary for the proper proof of my claim be furnished to me, free of charge.”

The data of the injury then appeared further down the paper, covering, it is believed, everything requisite to his participation in the benefits afforded by the statute, except the rate of wages he had been getting, but in any event stating enough to require the state board to investigate his case, under the law.

The blanks thus requested were duly furnished to the plaintiff, but he failed to prosecute his-claim to further effect, and the state board, having waited for the time limited by its rules for additional proceedings, found that he had waived his- right to compensation and adjudged accordingly.

The plaintiff thereafter commenced this action.

The foregoing facts were alleged in the defendant’s answer.

When the case was put upon its trial to a jury the substance of the matters thus stated was admitted by counsel for the plaintiff. Whereupon the defendant, claiming that the plaintiff had thereby elected to proceed for compensation under the statute already quoted, and was for that reason barred of his action in court, asked that the cause be withdrawn from the jury, and demanded judgment accordingly. The request was refused.

When the plaintiff ha'd taken all his testimony, the same motion was made. It was again denied, as it also was when, at the end of the evidence on both sides, it was made for the third time.

There was a verdict, upon which judgment was entered for the plaintiff, after a motion for a new tidal had been overruled.

The question with which we are concerned is this: Did the plaintiff make an "application for an award from the state liability board?” If he did, then by the express words of the statute he is barred of his action in court.

To avoid an affirmative answer to this inquiry the plaintiff relies on the rules of the board.

The statute which creates the board and defines their procedure, permits them to make rules. This power is conferred by Section 1465-44, as follows:

‘ ‘ The board shall adopt reasonable and proper rules to govern and provide for the kind and character of notices, and the service thereof, in cases of accident and injury to employees, the nature and extent of the proofs and evidence, and the method of taking and furnishing the same, to establish the right to benefits of compensation from the state insurance fund, hereinafter provided for, the forms of application of those claiming to ■be entitled to benefits or compensation therefrom, the method of making investigations, physical examinations, and inspections, and prescribe the time within which adjudications and awards shall be made. ’ ’

Acting on the authority thus granted, the board has formulated a set of rules which are printed on the back of the paper sent forward by the plaintiff, as already stated. A copy of this paper is attached as an exhibit to the answer in this ease, so that we have the whole question before us on the record, as it was also before the trial court when the motion to arrest the ease from the jury was made and denied.

It is difficult from a mere inspection of these rules to say whether they contemplate, at least in some cases, two applications — one preliminary and the other final — or not. The first paper to be sent forward is not called an application, but a notice (see Rule 4). It is required — so the rule says — from an injured employee “who contemplates filing an application for an award. ” It is contended for the plaintiff that Rule 7 is the one which was operative in his ease. It is as follows: “Applications for awards in all cases of injury not resulting in death must be made by the party injured not less than two weeks nor more than three months after the injury is received. ” * * * This application it is said never was made,- and — such is the argument — the plaintiff merely exercised the option reserved to him by the statute of waging his rights in court rather than before the board.

It certainly is true that in some cases an award may be made without the application required by Rule 7. This is so where the claim is for medical services and does not involve compensation for injuries. Rule 8 specifically so says. So that, without regard to Rule 7, the board may, and does assume jurisdiction upon what Rule 4 designates' a “notice.”

That the board considers itself as entertaining jurisdiction under what it calls the preliminary notice provided for by Rule 4, is clear also from Rule 9, which requires the one filing the notice to be reminded of that fact in case he has neglected to proceed further, and thereupon to find that he has waived his right to compensation by his default.

The statute does not itself require or contemplate two applications, and whenever the board acquires jurisdiction it may, and should, pursue it to the effect which the act by its adoption was designed to. reach.

It is quite true that Rule 4 does not speak of an application but a notice, .and while it'is also true that the blank upon which the plaintiff sent forward the paper referred to styles it “First Notice of Injury and Preliminary Application,” neither of these designations is the language of .the plaintiff. Both are the work of the printers — directed, no doubt, by the board — but by neither does the plaintiff say that he is sending a notice and not ,an application, or that if the paper is to be considered as an application at all, it is to be regarded as tentative and preliminary only, and not final. When he does speak in the paper, his language is direct and unequivocal; it is not open to change by construction — so plain and unambiguous is it. It says: “I hereby make application to the Industrial Commission of Ohio for the payment of money out of the state insurance fund, on account of the injury to me hereinafter described.” Trie then requests the necessary blanks and forms to perfect his evidence. The latter was all he was called upon to do by the terms of Rule 4, and his preceding explicit .application for compensation was wholly redundant, unless it operated to confer jurisdiction on the board to proceed and adjudicate his case. If language goes for anything at all, this language started the machinery of the board, and the applicant could have compelled action clear through to the end of his case — subject of course to such requisitions of the board as might be proper to bring any lacking data or proof before them. It is perhaps unfortunate that there should be any ambiguity in the rules as the board has seen fit to promulgate them, or that there should be a repugnancy between the caption to a blank and the material and substantial thing absolutely stated below the caption. In such case the substance must prevail over form, and in any case the clear purpose of the statute must be carried out, which purpose manifestly is not to let a litigant change his forum 'after he has once effectually chosen one.

The statute could confer on the board the power to make all needful rules. It could not give the board power to say by a rule that an application is not an application but a notice. The statute itself requires an application, and it is not to be supposed that the legislative intent was to allow a plain and clear application to be construed as something that is not an application at all, but something very different.

While the purpose of this statute is highly remedial and it is for that reason to be liberally interpreted, this consideration ■does not permit a construction of it that amounts to a contradiction of its own terms or a manifest perversion of its language.

In giving this conclusive effect to the plaintiff’s own act in choosing his own remedy, we are far from attaching the importance to our conclusion that was intimated at the argument. The plaintiff is by no means stripped of the remedy which he himself elected in the first place to pursue. The statute — Section 1465-76 — says:

‘ ‘ Such board shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure, other than as herein provided; but may make the investigation in such manner as in their judgment, is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of this act.”

Under the plenary power thus conferred and wholly in consonance with the evident policy of the law, the board, by Rule 11, has spoken, as follows:

“The provisions of Rules 4, 5, 7 and 8 will not be relaxed, unless, in the judgment of the board, the failure to observe their provisions was occasioned by want of knowledge of their existence, and unless their strict enforcement will result in hardship and injustice. In such instances the commission will, upon application, extend the time for filing.”

Bearing in mind that it was under Rule 8, which may in a case of hardship be relaxed, that the board made its finding that the plaintiff had waived the prosecution of his claim, then by the mandate of the section of the statute last quoted the spirit of the act should be enforced by the allowance of further proceedings towards that remedy which the plaintiff elected to invoke, as we have found, and from the due and effectual prosecution of which he was for some reason induced, or chose to abstain.

It is equally the spirit and the purpose of the act to forbid the sampling of forums for the redress of their grievances by injured parties. The election of one, once made, precludes the pursuit of another. The plaintiff in this case having made his choice must be held to it.

It follows that the trial judge should have allowed the motion of the defendant to take the case from the jury in the first instance — the facts then appearing which left him no standing in court. Cornell v. Morrison, 87 O. S., 215.

This conclusion makes unnecessary any discussion of the other assignments of error made in the brief.

For the error found the judgment complained of is reversed, and final judgment for the plaintiff in error is now rendered-— such being what should have been done by the trial court.


text:
    TENDER. VITIATED BY ATTACHING A CONDITION.
    Circuit Court of Cuyahoga County.
    Bernard H. Sinks et al v. Hugh M. Green.
    Decided, February 6, 1912.

      Tender.

    A tender of stock is not sufficient when there is a coupled with it a condition that the party to whom the tender is made shall pay more for it than he has agreed to pay.

      Henry & McGraw, for plaintiff in error.

      M. P. Mooney, contra.
    Marvin, J.; Winch, J., and Niman, J., concur.
   Green was the plaintiff below and will be so spoken of in this opinion. Sinks and others were defendants below and will be so spoken of in this opinion.

The plaintiff recovered a judgment against the defendants in an action brought by him to recover thé amount he says the defendants owed to him upon a contract for the sale of certain stock in the Williams & Rogers Company, a corporation, or perhaps more properly stated, for damages- for refusing to carry out the contract which he says the defendants made for the purchase of such stock.

The ease in the court of common pleas was referred to Hon. John C. Hale, a former member of this court, who found the facts and his conclusions of law and reported the same to the court of common pleas. It is agreed here that the facts found by the referee are the real facts and the only facts' necessary to be considered in the case. It is objected, however, that his conclusions of law from the facts are not justified, and the court of common pleas so found, the conclusions found by the referee being such as to deny to the plaintiff any right to recover. The court allowed a recovery. So then, we know the facts upon which the plaintiff is entitled to recover, if he is entitled to recover at all.

The contract which the plaintiff says the defendants refused to carry out, and because of which refusal he claims to be entitled to recover here, was entered into between Thomas Rogers, acting on behalf of himself and certain other persons associated with him in the ownership of the stock of the Williams & Rogers Company, on the one part, and William O. Roberts, acting upon behalf of himself and the defendants in this action on the other part. Several contracts were entered into by these parties, each supplementing a prior contract. It is sufficient to say in regard to them that the parties originally represented by Rogers in the sale proposed to sell, and did sell, 3,400 shares of the stock of this corporation,, there being in all 2,000 shares of such stock. A price was agreed upon in the original contract, based upon an inventory of the assets of the corporation. By supplements made to this contract, the price was to be varied according as it should turn out that there was an over-valuation of certain parts of the assets. The final contract .as agreed upon contained this clause: ' .

“It is further hereby_agreed that if at any time within two years from the date hereof the owners of said 600 shares or of any 100 shares shall elect to sell their said stock to second party at the. price aforesaid, upon the terms of payment of the par value thereof in equal semi-annual installments, payable in six, twelve, eighteen and twenty-four months respectively, evidenced by four promissory notes bearing interest at six per cent, per annum payable semi-annually, and the balance of said purchase price in cash at the time of purchase, the said party of the second part will, within thirty days after written notice of the election to him, accept and pay for the said stock in the manner aforesaid, and said party of the second part hereby gives to said party of the first part, or the holders of said shares the privilege and option to sell same to him upon the terms hereinbefore in this paragraph set forth. The promissory notes to be given as aforesaid to be signed by satisfactory responsible parties to the approval of the president of the Central National Bank of Cleveland.”

The plaintiff was the owner of 300 shares of this stock. He claims that he tendered the stock to the defendants and demanded of them that they carry out the provisions contained in that part of the contract hereinbefore quoted. What he did was, on the 12th of August, 1908, he sent a letter to the several defendants in this suit, except Aaron Skall, in which he said:

“The undersigned * * * hereby gives you (who were represented by William C. Roberts in the making of said contract) formal notice that he hereby takes advantage of, and exorcises the option therein given him, to sell his said one hundred shares of stock in said company, to you at the price provided for in said contract, and upon the terms therein set forth, to-wit: the same price per share as was agreed by said contract to be paid for the other fourteen hundred shares mentioned therein, and upon the terms hereinbefore set forth. * * * The undersigned is ready, and hereby offers to deliver to you the said one hundred shares of said stock upon delivery to him of four notes signed as aforesaid.”

The referee found that this was not a tender of the stock. In this we think the referee, was clearly right. Nor was it necessary that he should then tender the stock, nor was.it probably intended by him as a tender. It will be noticed that the contract provides that the party of the second part “will, within thirty days after written notice to him of such election, accept and pay for the said stock in the manner aforesaid.” The letter of August 12, 1908, was such notice, and if followed up by a tender of the stock after thirty days from the giving of such notice and within two years from the date of the contract, the plaintiff would have complied with the contract and would have been entitled to recover the price agreed upon to be paid therefor, unless it be that the plaintiff was not entitled to the benefit of this contract, though made for his benefit and made between the parties who made it. As we view this case, it is not necessary to consider that question because, however we should hold ■upon it, we should reach the remit which we do reach in deciding the case.

On the 3d of June, 1909, which was within two years of the date of the contract, and more than thirty days after the notice hereinbefore spoken of, the plaintiff wrote to each of the defendants the following letter:

“Cleveland, Ohio, June 2, 1909.
“Mr. B. IT. Sinks,
‘ ‘ City.
“Dear Sir: Pursuant to my written notice served upon you, bearing date of the 12th of August, 1908, in which I notified you of my election to sell my stock to you upon the terms set forth in the contract of June 28th, 1907, therein referred to, tendered you my said stock and demanded payment therefor in accordance with the provisions of said contract, I hereby renew my tender of said stock, preliminary to the commencement of suit, and offer to deliver same to you on the payment to me in cash of the sum of $3,801.55 and the delivery to me of four notes as follows: one for $2,500 payable in 8 months after date; one for $2,500 payable in 12 months after date; one for $2,500 payable in 18 months after date; and one for $2,500 payable in 24 months after date. Said notes to bear interest at six per cent, per annum, payable semi-annually, and to be signed by satisfactorily responsible persons to the approval of the president ol the Central National Bank of Cleveland, Ohio.
“I herewith make the actual tender to you of certificate No. 52 for 100 shares in the capital stock of the Williams & Rogers Company, standing in my name, and duly endorsed for transfer. Upon failure by you to deliver me said cash and notes, signed as aforesaid, and to accept said stock, I shall at once begin suit against you to recover the amount due me.
“Very truly yours,
“ Hugh M. Green. ’ ’

And then produced a certificate for 100 shares of stock in this corporation, and as appears from the letter said:

“I hereby renew my tender of said stock preliminary to the commencement of suit, and offer to deliver the same to you on the payment to me in cash of the sum of $3,801.55, and the delivery to me of four notes as follows: one for $2,500 payable in 8 months after date; one for $2,500 payable in 12 months after date; one for $2,500 payable in 18 months after date, and one for $2,500 payable in 24 months after date.”

It will be noticed that this offer and tender was accompanied with the condition that the amount to be paid therefor was $13,-801.55. It is conceded that by reason of certain deductions which were to be made if the inventory should be changed, and which inventory was changed by the agreement of the parties to the original contract, the amount demanded was more than the amount to which the plaintiff was entitled, if he was entitled to be paid the agreed price. And so we come tó the question, and to us the only question which we regard as necessary to determine in order to properly determine the case before usWas this tender sufficient?

We do not base the conclusion to which we come upon the question of whether this tender of the stock which the contract required was to be regarded as requiring a delivery of the stock as a condition precedent to the bringing of the suit. The two things to be done, that is to say, the delivery of the stock and the payment therefor, were to be contemporaneous; they were to be done at one and the same time, and the plaintiff did all that was necessary for him to do in order to entitle him to bring the suit, unless he imposed a condition which took away the validity .of his tender. He says in his petition that the amount to be paid for the stock is $13,801.55 and he says;

“Plaintiff has been, from thence up (that is from the 12th day of August, 1908) tó the beginning of this1 action, and still is, ready and offers to deliver his said 100 shares of said capital stock to the said defendants, upon payment to him of the purchase price thereof as provided in said contract, and he brings the said 'shares of said capital stock here into court to be delivered to the said defendants upon thé payment by them of said purchase price.”

The purchase price about which he is talking, and which he says they agreed- to pay him, was $13,801.55. As already said, it is clear that the purchase price was not so much as this by a considerable amount, because of the deductions which had been made from the inventory, and which, as to a part thereof at least, were well known to the plaintiff at the time he offered to deliver the stock, to-wit, on the 3d day of June, 1909.

We are of opinion that the plaintiff did not make such a tender of the stock either in August, 1908, or in June, 1909, as entitles him to maintain his action. The tender made was conditional, and it was conditional upon the payment to him of an amount to which he was not entitled.

In Page on Contracts, 3d Yol, Section 1421, it is said;

“The debtor may attach a condition to the tender requiring the creditor to perform some act which he would be in any event legally bound to do without affecting the sufficiency of the tender.”

In Section 1422 of the same writing it is said:

‘ ‘ If, however, the debtor attempts to impose any condition not required by law, such as demanding that the tender be accepted as full performance, or that a discharge or a release in full be given, -or that a right of appeal be waived, or that in connection with the debt in question other claims between the same parties be settled, the tender is insufficient.”

Without quoting further from this section, it seems clear from, the whole section that the writer does not regard a tender as sufficient where -there is coupled wilh it a condition that the party to whom the tender is made shall do something which he is not bound by law or the contract to do, and this text is supported by a large number of authorities.

In the case of Raudabaugh v. Hart, 61 O. S., 73, the second paragraph of the syllabus reads as follows:

“Where two acts are to be done at the same time, as when The vendor has agreed to convey interests in real estate upon the payment of a given sum as purchase money, the deal to be closed by a certain day named, and the purchaser has agreed to pay the purchase money, a part on that day and balance in one year, the conditions are what are known in law as mutual conditions, and neither party can maintain an action against the other without averring a performance, or an offer to perform on bis part. Mere willingness and readiness to perform, uncommunicated to the other party, will not avail. And it is not, in such case, sufficient that the plaintiff aver that from the date of the making of the contract to and including the day at which it was to be completed, ‘he was ready and willing to do and perform everything to be done by him in the carrying out of said sale and contract.’ Nor are the averments sufficient, when, in addition thereto, he avers that ‘the defendant, although often requested so to do, has refused to comply with said contract, and has at all times refused to transfer and deliver said propertv To plaintiff. ’ ”.

On page 89 of the same opinion, the court said:

“But there seems no doubt as to the rule in this state. In McCoy’s Adm’r v. Bixbee, 6 Ohio Rep., 310, it is held that ‘ Covenants to convey a tract of land, specifying no time of conveyance, and a covenant to pay therefor so much money in hand and so much at a future day, are mutual covenants. In such a case a purchaser can not have a cause of action, without averring the payment or tender of the purchase money.’ And in Campbell v. Gittings, 19 Ohio, 347, it is held: ‘Where an article contains a covenant by one party to-execute and deliver a warranty deed, and by the other to execute and deliver, when the deed is tendered a bond and a mortgage for the purchase money, though the party named neglect or refuse to deliver the deed, the other is not entitled to sue, after having neglected, at the proper time, tó offer or tender a bond and mortgage; and a declaration on the covenant to make a deed containing an averment that the plaintiff offered to execute a bond and mortgage, without averring a tender, or what is equivalent thereto is bad on demurrer. And in the opinion by Avery, J., it is said: ‘The covenants of these parties respecting the- deed, and the mortgage to secure the purchase money, being both to be presented on the same day, are dependent covenants in which, according to a clear legal principle, performance can not be exacted from either party, as a condition precedent. Both, it is understood must perform at lhe same time, neither being under any obligation to trust the other.”

'The conclusion reached by us, as already said, is that the plaintiff did not, within two years from the date of this contract, make such tender to the defendants of .the stock as entitles him to maintain his action, and there being no dispute as to the facts in this case, but all being conceded, we reverse the judgment of the court of common pleas and proceed to enter the judgment here which should have been entered in that court, that the petition of the plaintiff be dismissed at his costs.


text:
    PROCEEDINGS UNDER. A CHARGE OF CONTRIBUTING TO DELINQUENCY.
    Court of Appeals for Hamilton County.
    William Walton, alias Hop, v. State of Ohio; and Herman Breiner v. State of Ohio.
    Decided, April 10, 1914.

      Juvenile Delinquency — Defendant May Verbally Waive Trial by Jury —Sufficiency of Affidavits — Imprisonment in Worlc House.

    1. A jury may be waived by a defendant in the juvenile court, and where he elects so to do it is not necessary that the waiver be in writing.
    2. It is not necessary that the negative averments of Section 1642, General Code, relating to jurisdiction over and with respect to delinquent and dependent and neglected minors, shall be incorporated in the affidavits under which arrests are made.
    8. It is not error to sentence to the work house one found guilty of contributing to the delinquency of a minor under the age of seventeen years.

      James S. Myers and E. J. Franks, for Walton.

      Powell & Smiley, for Breiner.

      Thomas L. Pogue, Prosecuting Attorney, and A. J. Zanone, Assistant Prosecuting Attorney, contra.
    Jones, E, H., J.; Swing, J., and Jones, O. B., J., concur.
   • The plaintiffs in error were tried and convicted in the juvenile court for contributing to the delinquency of a girl named Mary Iding, who at the time is alleged to’ have been fifteen years of age.

The affidavits charge an offense defined by Section 1654 of the General Code, which provides:

“Whoever aids, abets, induces, causes, encourages or contributes towards the delinquency of a minor under the age of seventeen years, as herein defined, shall be fined not less thq-n ten dollars nor more than one thousand dollars or imprisoned not less than ten days nor more than one year, or both,” etc.

The cases were tried by the court without the intervention of a jury, and each of the defendants upon conviction was sentenced to pay a fine of $200 and to imprisonment in the workhouse for a period of three months.

In support of their prayer for a reversal of the judgment below the following points are urged in argument:

1. That there was irregularity and illegality in the proceedings below in that there was no jury impaneled to try the issues raised by the pleas of "not guilty,” and that the record does not show that the jury was waived in writing by the defendants.
2. That the negative averments of Section 1642 of the General Code are not contained in the affidavits upon which the arrests were made and conviction had.
3. That the sentence, in so far as it provides for imprisonment in the work house is illegal and without authority of law.

With reference to the matter of trial by jury, the judgment entry in the court below contains the following language:

"This day came into court, the prosecuting attorney, on behalf of the state of Ohio, as also the said defendant, William Walton, alias Hop, who, being duly arraigned at the bar of our court, and examined of and concerning the charge contained in the complaint herein, as to how he will acquit himself thereof, for plea thereto saith that he is not guilty, and waives Ms right of trial by jury.”

I

Section 1651 of the General Code, found in the chapter relating to the juvenile court, provides in part as follows:

"A person charged with being responsible for or with causing, aiding or contributing to the delinquency, dependency or neglect of a- child, arrested or cited to appear before such court, at any time before hearing, may demand a trial by jury, or the judge upon his own motion may call a jury.”

So we see that under the terms of the statute describing the mode of trial of this class of oases it is provided that the accused may waive the right of trial, by jury. The records in these cases show affirmatively that this was done orally by each of the defendants. According to a long line of decisions in our state, dating from an early period in our jurisprudence, it has been repeatedly held and is now well established that it is not necessary in'the trial of a misdemeanor case under provisions of law similar to that above quoted that the jury be waived in writing. See Dailey v. State of Ohio, 4 O. S., 57:

“Section-42 of an ‘act defining the jurisdiction and regulating the practice of probate courts’ passed March 14, 1853, providing that ‘upon a plea other than a plea of guilty, if the defendant do not demand a trial by jury, the probate judge shall proceed to try the issue,’ is a valid and constitutional enactment.
“A record showing that the accused ‘did not demand a jury’ sufficiently shows a waiver of the trial by jury.”

Also, to the same effect, Dillingham v. State., 5 O. S., 280:

“The constitutional right of trial by jury is not infringed when the option is given to the accused to have the same issue tried by the court or the jury, and he submits the cause to the court.”

And Billingheimer v. State, 32 O. S., 435:

“In a trial before the police court of Cincinnati for a violation of the statute forbidding common labor on the first day of the week (S. & S., 289), unless the record shows that defendant demanded a jury, -he will be deemed to have waived it. ’ ’

Under these and other decisions which might be cited it appears well settled that the waiver of a jury is not required to be in writing. The record showing -affirmatively in the cases that the accused “waives his right to trial by jury” we find no error in this respect.

The second point, viz., as to the absence of negative averments in the affidavit, is answered by the second paragraph of the syllabus in Billingheimer v. State, supra:

‘ ‘ A negative averment to the matter of a proviso in a statute, - is not requisite in an information, unless the matter of such proviso enters into and becomes a part of the description of the offense, or is a qualification of the language defining or creating it.”

An examination of Section 1654, under which these affidavits were drawn and which defines and describes the offense charged, shows an absence of any negative provisions. The negative provisions referred to by counsel are found in Section 1642, which section 'related to the matter of jurisdiction, and has nothing to do with the definition of this or any other offense, so that under the authority above cited it can not be claimed that it is necessary to embody the negative provisions of this latter section in an affidavit charging an offense under an entirely different section.

The third and last assignment of error related to the' sentence imposed by the trial court. It is claimed that the court was without authority to sentence the plaintiffs in error to the workhouse. The statute under which they were arrested and convicted provides'for a sentence of fine or imprisonment for not less than ten days nor more than one year or both.

Section 12370, General Code, defines the word “imprisoned” and provides as follows:

“In the interpretation of Part Fourth the word ‘imprisoned,’ where the context does not otherwise require, means imprisoned in the county jail if the maximum term prescribed for the offense is one year, and imprisoned in the penitentiary if the maximum term prescribed for the offense is longer than one year.”

If this section has any application to the imprisonment provided for in Section 1654, such imprisonment must be in the county jail. It will be noticed, however, that the operation of Section 12370, by the language of the section, is limited to the term “imprisoned” as found in “Part Fourth.” Section 1654 is not embodied in Part Fourth of the General Code, and it is doubtful whether Section 12370 has any application or can throw any light upon the meaning of the term “imprisoned” as found in Section 1654. But without any such aid to interpretation we are of the opinion that the imprisonment for one year provided for in the latter section means imprisonment in the county jail. If we are correct in this conclusion, then Section 4128 clothes the trial court with the authority to sentence offenders under Section 1654 to the workhouse.

“Section 4128. When a person over sixteen years of age is convicted of an offense under the law of the state or an ordinance of a municipal corporation, and the tribunal before which the conviction is had is authorized by law to commit the offender to the county jail or corporation prison, the court, mayor, or justice of the peace, as the case may be, may sentence the offender to the work house, if there is such a house in the county.”

The case of Lemmon v. State, 77 O. S., 427, is relied upon by counsel for plaintiffs in error as sustaining their contention upon this point, and from a superficial examination it would appear that the ease is applicable and determinative. However, the section of the statute construed by the Supreme Court in the Lemmon case was amended within three months after the decision of the Supreme Court, and the obstacle in the way of sentence to the workhouse there pointed out was removed by the Legislature. This section, as it stood at the time of the decision in the Lemmon case contained the words “is directed” instead of the words “is authorized” appearing in italics' above.

The reasoning of the court in the Lemmon case is to the effect that before a sentence to the work house can be legally imposed, it must appear that the section under which the sentence is imposed directs the court to imprison the convict 'in the county jail. The Lemmon case was a prosecution under the so-called Valentine anti-trust law, which law provided for a fine or imprisonment or both, as does Section 1654 in this case. The Supreme Court held that the imprisonment under this language was discretionary or optional with the court, and was not “directed,” and hence, the section now numbered 4128 as it then read, gave the court no authority to sentence to the work house. The change of the words “is directed” to “is authorized,” it will be seen, removes this objection, and the decision in the Lemmon case is rendered ineffectual by the amendment referred to. The amended section we think clearly authorized a court having discretionary power to impose .a sentence of fine or imprisonment or both (in c,ase imprisonment is ordered), to provide said imprisonment be in a work house, in a county where a work house is located.

Having found, therefore, no error in the records, the judgments below are affirmed.


text:
    FAILURE TO COMPLY WITH ORDER. OF COURT WITH REFERENCE TO PLEADINGS.
    Circuit Court of Cuyahoga County.
    Rebecca Harrison v. Wallace I. Knight, Administrator.
    Decided, February 5, 1912.

      Striking Pleadings from Files.

    The right to strike pleadings from the files because of the failure or refusal of-the parties filing them to comply with orders made in respect thereto, is inherent in the courts, and it is no valid objection to the exercise of this right that the pleading ordered stricken off states a cause of action or a good defense.

      Kerruish, Kerruish, Hartshorn & Spooner, for plaintiff in error.

      Morgan & Litzler, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.
   The parties to this action, standing in the same order as in the court below, will be referred to as plaintiff and defendant, respectively.

On April 10, 1907, the plaintiff filed her petition against the defendant. The defendant filed a.motion seeking to have certain matter stricken from the petition. This motion having been-granted, the plaintiff, by leave of court, filed ¿n amended petition. The defendant then filed a motion asking to have certain matter stricken from the amended petition, which was granted. The plaintiff thereupon obtained leave to file a second amended petition. This second amended petition having been filed, the defendant filed an answer thereto, to which answer the plaintiff filed a reply.

The defendant thereafter moved against this reply, and on hearing of the motion, the court ordered certain matter stricken therefrom. Leave was then given to the plaintiff to file an amended reply by a stipulated day. The plaintiff, however, did not file an amended reply but did obtain leave of court to file another amended petition. After the third amended peuuw. was filed, the defendant moved to strike from it certain allegations, and the motion was granted. The plaintiff again obtaining leave of court, filed a fourth amended petition, which, on motion of the defendant, was stricken from the files. Thereafter, the plaintiff filed, by leave of court, a fifth amended petition, which was also, on motion of the defendant, stricken from the files.

In striking the fifth amended petition from the files the court made the following order:

“The motion to' strike the fifth amended petition from the files is heard and granted, at the plaintiff’s costs, for which judgment is rendered against her, and sa.id fifth amended petition is hereby stricken from the files. Plaintiff is refused permission to file any further pleadings in this cause. To all of which the plaintiff excepts.”

This order was made on the 27th day of November, 1911. Previous to this date, on July 1, 1911, the defendant filed an amended cross-petition on which he caused summons to issue against the plaintiff. The summons was served on her on the 8th day of November, 1911. , ' j] ¶*]|

The matter ordered stricken from the petition was in substance embodied in the various amended petitions 'filed by the plaintiff, and was incorporated in the reply.

The plaintiff seeks a reversal of the action of the court of common pleas in striking her fifth amended petition from the files and in making the order which has been quoted.

When the court ordered certain allegations stricken from the petition, it was the duty .of the plaintiff, and of her counsel, to omit such allegations from all subsequent pleadings. Instead of doing this, however, the plaintiff, with slightly different phraseology, embodied substantially the same allegations in all of the various pleadings filed by her. In five amended petitions and one reply the decision of the court was ignored, and practically no attention paid to it. The filing of pleadings framed in disregard of the order of the court extended over a period of more than four years, and seems to have developed into a contest of endurance.

It was within the power of the court to take such steps as would secure obedience to its orders, and to punish for contempt if necessary. Neither a party to the action, nor an attorney engaged therein, had any right to continue indefinitely to file pleadings containing matter which the court had decided repeatedly to be improper.

The method of securing obedience to its order was within the discretion of the court, and unless that discretion has been abused, or the court has exceeded its powers, the order made should not be disturbed.

The right to strike pleadings from the files because of the failure or refusal of the parties filing them to comply with orders made in respect thereto, is inherent in the courts, and frequent instances of its exercise are not found wanting.

In Howard v. Western Union Telegraph Co., 25 Ky. L. Rep., 828, the question was before the court and it was there held that the refusal to comply with an order properly granted, to make a petition more specific is an act of contempt, rendering a dismissal of the action proper. See also Saalfeld v. Cutting, 49 N. Y. App. Div., 640.

It is no valid objection to the exercise of this right, that the pleading ordered stricken off states a cause of action or a good defense, as the ease may be. This subject was considered in Macadam v. Scuddy, 127 Mo., 345. In the opinion, page 355, it is held:

“Upon the refusal of the plaintiff to comply with the rule and amend his petition, the court committed no error in dismissing the cause. This was the only alternative left to the court by which its authority could be maintained. The fact that the petition contained a statement of a cause of action, is no reason why it should not have been dismissed. The petition was not obnoxious to this motion, because it did not state a cause of action, but because the statement of the cause of action was so indefinite and uncertain that ‘the precise nature of the charges’ upon which the plaintiff sought to recover was not apparent. The defect could not have been reached by demurrer. The proper way to reach it was by motion.”

We decide, therefore, that the sustaining of the motion to strike the fifth amended petition from the files was an act within the power of the court, and that the order in so far as it directed said amended petition to be stricken from the files was properly made, but the court went beyond this, and embodies in its order a provision that the plaintiff was refused permission to file any further pleadings in the cause.

In view of the fact that the .defendant had caused summons to issue on his amended cross-petition, which was served on the plaintiff on the 9th day of November, 1911, we consider that the plaintiff had an absolute right to plead to this amended cross-petition. At the time the order was made, November 27, 1911, the time given her by statute for so pleading had not expired, and she was deprived of -a right given her by statute.

The judgment or order of the court of common pleas striking the fifth, amended petition from the files is therefore affirmed, but so much of said judgment or order as refused the plaintiff permission to file any further pleadings in thecause is reversed, and the cause is remanded to the court of common pleas for further proceedings.