author: HayNES, J.

text:
    (Sixth Circuit—Sandusky Co., O., Circuit Court.)
    Before Bentley, Haynes and Scribner, J J.
    J. L. AMES v. THE WHEELING & LAKE ERIE RY. CO. et al.

      Sale of right of way to R. R. Co.— Vendor’s lien good as against subsequent purchasers—
    (1.) PlaintiS had entered into an agreement with the Railroad Co., to avoid the vexation of legal proceedings, to convey to them the right of way through his land at a certain price per acre, he agreeing to take such purchase money iri shares of the capital stock of the Railroad Co. if the same should at the end of two years be worth its face value, otherwise to be paid in cash. The stock being of no value at the end of two years, he demanded the cash, which was refused, and suit brought to enforce vendor’s lien. Held, that plaintiff is entitled to a vendor’s lien, and to enforce the same as against subsequent purchasers of the road under foreclosure proceedings to which he was not a party.

      Same — Order for sale of entire road proper—
    (2.) To enforce the vendors lien, the proper remedy is an order of sale of the railroad as an entirety! (Railroad Co. v. Lewton, 20 Ohio St., 401.)
    Appeal from the Court of Common Pleas of Sandusky county.
   HayNES, J.

In the case of J. L. Ames, plaintiff, v. The Wheeling & Lake Erie Railway Co., defendant, coming into this court upon appeal, sundry pleadings were filed and leave finally taken to file an amended petition, and the case has been heard on what is called the second amended petition and the answers thereto. At the time of the filing of that petition, the Mercantile Trust Co. was, made a party, and also filed an answer.

The plaintiff in his petition sets forth: That the defendant railway company is a corporation duly incorporated under the laws cf Ohio and owns and operates a line of railroad running from the county of Belmont, Ohio, to the county of Lucas, Ohio, and gives a description of the line. It really runs from the city of Toledo to a point opposite Wheeling in Belmont county. The petition sets forth further, that “At the September term, 1885, of the court of common pleas of Sandusky county, Ohio, beginning September 14th, the plaintiff, by the consideration of said court duly recovered a judgment against the railroad company, in the sum of $1,127.18, debt,and $41.90 costs,” andthathehad by virtue of said judgment a valid lien on said line of railroad, and further, a vendor’s lien, as found by that court, to secure the payment of said sum. He further sets up that at the February term, 1886,of the circuit court of this county, said judgment and decree-was affirmed by that court. He sets forth further, that the railway company purchased the said line of railroad, right of way, depots and platforms and other structures on the same on or about June 27, 1886, and that they purchased said property with notice of plaintiff’s judgment and liens thereon, and bold the same subject to plaintiff’s prior liens thereon. He further says that the trust company, which is a corporation duly incorporated under the laws of New York, claim an interest-in or a lien upon said line of railroad and right of way, depots, platforms and other structures on the same; that plaintiff’s said liens are the first and best iiens,and prior to the lien of the trust company.

The defendant, the railway company, filed an answer, in which they admit that the plaintiff recovered a judgment at the September term, 1885, against the company for the amount alleged in the petition,“but it denies that the plaintiff has, by virtue of said judgment, or otherwise, any lien whatever,” as alleged.

It then sets forth that on November 1, 1879, the railroad company executed its first mortgage bonds and sold them,and to secure the same,on November 1,1879, executed a mortgage to the Farmers’ Loan & Trust Co., as trustee upon its . line of railroad, and all its appurtenances and equipment and everything belonging to it; that said mortgage was duly recorded during the year 1880, and sets forth the conditions of defeasance. The amount of the bonds was quite large, seme $3,500,000, I beliove. That the railroad company failed to pay the interest which became c ue November 1, 1888, and on July 3, 1884, the trust company filed a bill in the circuit court of the United States for the northern district of Ohio, against said railroad company, and that such proceedings were had that a sale was made of the property by the special master commissioner, to Forest, Day and Garrison, as trustees; said sale was confirmed, and deed made by Goodspeed, Commissioner, to said trustees. That said deed was recorded. That afterwards, on June 25, 1886, said trustees deeded said property to the railway company. The defendant therefore admits the purchase of said railroad by the defendant, but denies that it made said purchase with notice of plaintiff’s judgment and liens, or that it holds the property subject to any lien of plaintiff.

In reply to that, the plaintiff says that the mortgage given to the trust company was foreclosed and under the proceedings in the circuit court of the United States, set out in the answer of the railway compan}’', has ceased to be a lien upon the property of the said railway company. I may say in this connection that it appears that the plaintiff was not made a party to that suit. It is not averred that he was,nor is it denied. The railway company further answering to the amended petition, by an amendment to its answer, sets up that there are sundry liens, one in favor of the Central Trust Co., of New York, given by the railway company April, 1888, for three millions of dollars; it declares that it is still a subsisting lien upon defendant’s railroad. The mortgage given by the railroad company is dated March 1st, I suppose of the same year, and is a lien for $2,800,000. That is. the original mortgage I think. It further sets up that there are divers judgments rendered against them in different counties along the line of the road', and one of them I think in this county.

The plaintiff replies and says that there are no liens upon the tract of land sold by the plaintiff to the railroad company prior to the vendor’s lien, and hé has no knowledge of the other matters and things set forth,and denies them.

The Mercantile Trust Co. sets up its mortgage as executed on July 1, 1886, afterwards recorded in August, 1886, and prays that in any action or proceeding in this court the rights of said defendant may be preserved, and that it may have such relief as it may be entitled to.

The case was heard upon evidence,and the evidence which was put in was principally record evidence.

Briefly, if we have the facts correctly, the evidence shows that the original mortgage was made to the Farmers’ Loan and Trust Co., November 1, 1879, and was thereafter recorded in 1880, early in the winter.

Next in order, on July 15, 1881, Ames made a contract for the sale of this right of way, giving the railroad company permission to enter upon his land to construct the road, and, in 1881, September 17', he executed a deed to the railroad company. On April 17, 1884, he filed his petition to enforce his vendor’s lien, and on November 7, 1885, he took his decree. Meanwhile, on July 8, 1884, the trustees filed their petition to foreclose the mortgage given to the Farmers’Loan and Trust Co., in the circuit court of the United States, and, on January 13, 1886, they took their decree. On April 23, 1886, the master commissioner, Good-speed, sold the road to Forest, O’Day and Garrison, trustees, and on June 22, 1886, the Bale was confirmed by the United States court,and shortly after the deed was made and recorded accordingly. On Juñe 25, 1886, the trustees sold said premises to the railway company, and on October 7th the present action was brought in the court cf common pleas of Sandusky oounty, Ohio.

On July 1, 1896, the railway company executed its bends and mortgage to the Mercantile Trust Co., which was recorded in August, 1886. It further appears by the evidence introduced' in the record of the first suit of Ames against the railroad company, that the suit was brought against the railroad company alone, for the purpose of enforcing a vendor’s lien upon the property that had been sold by Ames to the railroad company. It further appears in the reccrd that Ames, on July 15, 1881, executed a paper to the railroad company wherein and whereby it was agreed that in consideration of one dollar and the desire to avoid vexatious legal proceedings the railroad company might locate and construct its road on plaintiff’s premises describing them, sixty-six feet wide, on the line surveyed just north of the Lake Shore and Michigan Southern Railroad’s right of way, the consideration for said land to be two hundrod dollars per acre payable in the capital stock of said company, said stock to be worth par at the end of two years or said price of said land to be paid for in cash. Afterwards, on September 1st, in the same year, being a month and two days afterwards, Ames and wife executed a deed to the railroad company conveying to them that strip of land, naming the consideration as one thousand dollars in stock of the defendant company,and containing the other conditions mentioned as being in the paper just referred to. At the expiration of two years, it is averred that the stock was of no value; that he tendered to the railroad company the stock and demanded the amount in cash that the company had agreed to pay for the land, and it was refused', and thereupon suit was brought and such steps taken in the case that a decree was rendered in the court of common pleas, the decree finding that there was due to the plaintiff on account of the matters and things alleged the sum of $1,000, with interest at six per cent, from September 25, 1883, and that the plaintiff was entitled to a lien amounting in all to $1,127.18, and that said sum should be declared a lieu on defendant’s line of railroad and right of way through Ohio. To this finding and judgment the defendant duly excepted.

That case was taken upon error to the circuit court of this county, and at the February term, 1886, was affirmed Since that time the supreme court affirmed it at length without report, and we understand that a petition in error has-been filed and the case is now pending in the supreme court of this state.

The records have bean offered also of the , mortgages to-Forest, O’Day and Garrison and to the Mercantile Trust Co.; the deed of the master commissioner, Goodspeed, of the road to the railway company; the original bill of complaint in the United States circuit court and the decree in the United States circuit court.

Upon this state of facts it will be seen that, as betweenthe plaintiff and the defendant railroad company,'the question of the right of the plaintiff to recover and have a lien has been settled by decision of the court of common pleas of this county and affirmed by the circuit court of this county. In that suit, however, as I have already stated, no other parties were made except the railroad company.

Upon this state of facts, the defendants make two questions here as to the right of the plaintiff to have this vendor’s lien upon this right of way or upon his land covered by the right of way, and also his right to have an order for the sale of the property cf the railway company. They also-make another question : That the proper parties have not-been made to the suit.

New, to take these in their order — as to the right of the’ plaintiff to maintain his action for an order of sale of the-property cf the company for the enforcement of the vendor’s-lien in this case, we think the question is practically settled by the case of Railroad Co. v. Lewton, 20 Ohio St., 401, decided by the supreme court of this state, being a case that went up from the superior court of Montgomery county.

It will be necessary, in order to have an understanding of this matter, that I read this case, and, in passing through the reading of it, to show the distinctions and the application of the case to the one at bar.

In that case the defendant, Lewton, being the owner of the farm, entered into a contract with the Dayton, Xenia and Belpre Railroad Company, in the year 1858, whereby he agreed “to release to the said railroad company the right of way and the right to enter upon and construct their road through the following lands” (describing them). And “for and in consideration of the right of way, and the right to enter upon and construct said railroad, the said railroad companj' agree to pay to the said Henry Lewton the sum of fifteen hundred dollars, as follows, viz: one-third, $500, on -Or before commencing work on said lands; one-third, $500, in two years after the payment of the first payment, with interest; and also to make a road crossing and two cattle guards at or near station 600, and one cattle guard at the west end of said farm, and also to make a culvert or bridge crossing at a branch at station 615 large enough for wagon track.” Those are the material points so far as this case is concerned. No deed was ever made for the right of way to the railroad company. The railroad company entered upon the lands of the plaintiff under that agreement and constructed its railroad. .‘‘In November 1857” — which would be four years afterwards — ‘‘the defendant in error recovered a judgment against the railroad company for a balance of the purchase money. And in March, 1858, in the same action, a further judgment for $500 for the failure cf said company to construct its road in the manner provided in ■the contract.” (That is to say, I suppose, the cattle guards and culverts or bridges, as the company had agreed to do.) “These judgments have never been paid. The said right of way has not been conveyed otherwise than by said instrument. In January, 1855,” (nearly two years before the .suit was commenced) “said railroad company executed a mortgage on said railroad'to plaintiff in error, Charles W. Rockwell, trustee, to secure the payment of five hundred bonds for $1,000 each. Rockwell at the time had no actual rnotioe that plaintiff’s claim had not been paid.” (Thecom-pany had taken possession in 1858, and executed this mortgage in 1855.) “In October, 1865, Rockwell obtained a decree upon said mortgage for the sale of the "railroad; and •in January, 1866, the same was sold on said decree to the Little Miami and Columbus and Xenia railroad companies .(also plaintiffs in error) for a sum of money insufficient to discharge the mortgage liens. This sale was confirmed and the purchasers put in possession.”

“The defendant in error was not a party to said action to foreclose, nor had he any actual knowledge of the pendency ■of the action.”. (In that respect, he stood in the same position that Ames stands in relation to the Wheeling and Lake Erie Railway — the only practical difference, so far, is that Ames had made a deed while Lewton had not.)
“In April, T868, the defendant in error obtained a decree of the amount due him on said judgment, and in default of -such payment, for the sale of said railroad, with its rights, privileges and franchises for the purpose of satisfying said judgment. In this decree, cr prior thereto, the court did not find the amount due on said mortgage, nor settle any questions of priority, etc. ” (April ’68, was after the execution of the mortgage — 'three years — and after the sale to the Little Miami Railroad.) “This is the judgment or decree sought to be reversed in this proceeding. The several errors assigned by plaintiff in error may be embraced in this general question — Did the court below err in rendering said decree upon the foregoing state of facts? Several propositions, however, are embraced and must be answered separately.
“1. Was the defendant in error entitled to the relief decreed to him? What is the nature of the case made by him? The property ordered to be sold includes an easement of the right of way of the Dayton, Xenia and Belpre Railroad, over the lands of the defendant in error; and his claim, in part at least, was for unpaid purchase money for that easement. A purchaser of realty ought not to enjoy the estate purchased without paying for it; therefore, in- equity, the vendor has a lien upon the property sold for the payment cf the purchase money.” (The legal title having been conveyed by Ames, he would come technically under what is called a vendor’s lien.) “It may be that this equity of the defendant in error is not technically what is called a “vendor’s lien,” inasmuch as the legal title has not been conveyed by him to the purchaser. It is, however, at least, as strong a hold upon the property sold as the lien of a vendor after title conveyed; for here not only is an equity retained by the vendor in the property sold to the extent of the unpaid purchase money, but the legal title is also retained by him as additional security.
“It cannot be said in that case, ‘that, from the nature and objects of this sale, th9 vendor did not intend to rely upon tho thing sold as security for his payment.’ Retaining the legal title is very strong if not conclusive evideuce that he did intend to rely upon it as security. The presumption, however, in all oases, even where the vendor conveys the legal title, is, that he intends to rely upon the property sold as security. And before his abandonment or waiver of such security can be found it must be shown that he did not intend to rely upon it.
“Nor will it do to say that ‘the difficulty in determining the priorities of such liens, or in executing decrees in such cases,’ is evidence of an intention of the vendor to waive his lien. If such a lien can be enforced at all, the presumption that the vendor intended to rely upon it is not weakened by the difficulties in the way, and if a court of chancery could find no means of adjusting co-existing liens or equities of this kind, or of enforcing the sale of such property to satisfy them, the only inference would be, that the vendor has been disappointed in his expectations. But whether a court of equity has power to decree and means tc execute its decrees in such cases, are the ultimate questions in this case and not preliminary ones, the solution of whioh may ' aid us in working out a conclusion.” (That is to say — he has his right of lien, and the question whether it can be worked out, or not, is a question for the court afterwards.)
“We can see no insurmountable difficulties in sustaining and executing the decree in this case, whether it be regarded as a decree enforcing a specific lien upon the property, cr a decree compelling the specific performance of the contract.
”2. That a vendor’s lien is applicable to the sale of an easement in land is not in terms denied by counsel for plaintiffs in error, and we see no good reason why such a lien may not attach against an easement as well as any other interest in land.
‘‘3. The judgment for damages for not constructing the road in the manner provided for in the contract, is as much the price of the interest sold to the railroad company, as was the $1,500 agreed to be paid in money. The only difference is that the amount of cash was ascertained and agreed upon by the parties, while the amount of the damages was not ascertained until judgment. Both sums arose in contract, and constituted the compensation the vendee was to return to the vendor for the interest purchased.
”4. Having fcund the amount of purchase money due the plaintiff below, as a predicate for the decree of sale, in default of the payment thereof, it was not error in the court below to decree the sale before finding the amount due upon the mortgage lien of Rockwell and determine the priority of the liens. In such matters there is a-discretion in tne court, and we cannot say that such discretion was abused in this case.
“5. The defense by Rockwell, the Little Miami and Columbus and Xenia railroad companies that they are innocent purchasers for a valuable consideration, and without notice of the right of the defendant in error, cannot avail them.
‘‘The fact that defendant in error retained ■ the legal title to the right of way sold, was sufficient to put them upon inquiry. They and each of them had constructive notice of the legal title.‘And had they, as prudent persons, made the inquiry as suggested by the state of the legal title, they would have come to the knowledge cf the rights of the defendant in error,
‘•‘6. The defendant in error was in no wise affected by the sale under the mortgage. He was not a party to that suit.
“7. The last question we propose to consider is one of greater difficulty.
“The court below decreed the sale of the whole of the Dayton, Xenia and Belpre Railroad (which at the time was being used as a public highway) to satisfy a specific lien of the defendant in error upon a section of the right of way. Is such decree erroneous?” (When they say it was used as a public highway, we of course understand it that it was used for a railroad.)
“The rights of the public must not be ignored; and it is the right of the public that this highway be maintained. It was by and through the exeroise of its power of eminent domain that it was established. And we take it that the right of the public to maintain the higwhay is paramount to the right of the defendant in error to destroy it. To sell the section of the right cf way over the lands of the defendant in error, and separate its use from the line of the road would destroy the highway. Hence to have decreed a sale of this fraction of the road or right of w'ay, would have been erroneous. The public having delegated to the Dayton, Xenia and Belpre Railroad Co. the power to exercise the right of eminent domain in the establishment of this highway, the company had power to obtain the right of way for its road in two modes — by condemnation and prepayment of compensation under the right of eminent domain, or by contract with the owners of the land, upon such terms as might be agreed upon.. In Lewton’s case the latter mode was resorted to, and, by the terms of the contract, a right to enter upon the land and construct the read before the payment of compensation was secured; and yet that compensation was secured to Lew ton by an equitable lien upon the easement thus obtained by the cornpay. And justice requires that this security shall be applied to the satisfaction of Lewton’s claim. Can it be done? The difficulty is apparent rather than real. The public has and can have no right which springs from an act of .injustice to the defendant in error. Its only right is to preserve the continuity of the road, of the line of public travel and transportation. And this right is wqII subserved, if the ownership and management of the highwav be in the hands of one party as another. 'Hence the public has nc interest impaired by a sale of the whole line.
“We have seen that the Little Miami, and Cclumbus and Xenia Railroad Companies and Rockwell, stand in the shoes of the Dayton, Xenia and Belpre Railroad Co. And what shall be said of the rights of the latter? Has it a right to retain the property of the defendant in error without paying for it?
“Having obtained the possession of this property from the> defendant in error, under a promise to pay for it, the Day-ton, Xenia and Belpre Railroad Cc. may not so blend and' mix it with uther property of its own as to constitute a greafc and indivisible highway, and then be permitted in equity to say to the defendant in error, ‘this property upon which you had and have a specific lien, had become, by pay act, part of a highway which the public has an interest in main» taining, and because the withdrawal of your part from the common use would defeat the public right, therefore you. may not enforce your lien.’
“On the ether hand, because a part may not be sold on account of the paramount right of the public to keep the highway intact, a necessity arises, in order that justice may be dene to the defendant in error, to decree the sale of the whole line of the road to satisfy his lien. And this is the only mode in which the rights and interests of other parties, either as owners or lien-holders upon the road, can be protected and their property or security saved from absolute destruction.
“The doctrine of this case is supported by Walker v. Railway Co., 12 Jurist, N. S. pt. 1, page 18. See also 2 Story on Equity Jurisdiction, by Redfield, 460, and 88 Vermont, 311.” The justices concurred.

Now, is there anything in the case at bar that should take it out of the doctrine laid down by the supreme court in the case which I have just read? There are some points of difference in the two cases. First, as I have already said, the legal title had been conveyed by Ames to the railroad company; but it has been held by this court, as formerly constituted, that that purchase price was a vendor’s lien, oe-that the plaintiff had a lien in the nature of á vendor’s lieo,. or a vendor’s iien properly — upon the land so sold, and with that judgment, under the authorities and under the authorities in this case, we are satisfied. We think there should be no question that Ames has the right to enforce his vendor’s,lien upon the premises that he conveyed to the railroad •company.

The point is made that because in the deed there was a provision made that the stock should be worth a certain sum in the period of two years, that that became simply a personal covenant on the part of the railroad company; but we .think upon the. contract of sale and upon the deed made under that contract of sale, that the company had agreed to pay the sum oi one thousand dollars — or whatever the sum named is — when the deed was made; that it had the right to, and under the contract did turn out certain stock, but it was the agreement in substance between the parties that he-was to have the twelve hundred dollars; the stock was taken, and if that was worth the face of it at 'the end of two years, that was to be in satisfaction of the consideration paid, and' if not, then their obligation should still remain to pay the sum they agreed to pay for the land, and that the plaintiff had the right, under the principles of law laid down, tcrlock to his lien upon the land for his payment and that it devolved upon the railroad company, as stated in Railroad Co. v. Lewton, supra, to show that he did not intend to rely upon that and allow the company to have his land exempt from the vendor’s lien. Having this vendor’s lien upon the land he had sold, the question is whether or not that lien has been cut off by any proceedings had in the case.

It appears that the first mortgage made upon the property •was made almost immediately upon the laying out of the dine; it was made before-the railroad company had obtained ■this right of way, either'by contract or by deed; and the •question is made here whether or not, having purchased the land, it should not have passed under the mortgage in such a manner that the property would be exempt in the hands of the mortgagee and the purchaser under him, from a ven.dor’s lien.

We are very clearly of the opinion that the mortgagee in that case stood in the shoes of the Wheeling and Lake Erie Railroad Co.; -that when the deed was taken to that land it ■was taken subject to this vendor’s lien; that the person who bold the prior mortgage had no greater interest or right in •the property than the Wheeling and Lake Erie Railroad Co., ¡and as the railroad company held it subject to the vendor’s lien, the mortgagee held it in the same manner.

Ames was not made a party to the proceeding for sale under that mortgage, and his rights were not cut off by it. He ■stood in the same position as if a sale had not been made.

It is said also that the railway company .when- they became the purchasers of the property took the property free from the vendor’s lien upon the property; but the parties who made that purchase»made it after the original suit was brought against the railroad company to enforce the vendor’s lien; that matter was a matter pending at that time between plaintiff and the railroad company, and it was bound in making its purchase to know what the rights of the plaintiff were under that decree. We think it was bound also by the deeds which had been filed to know that incase the consideration was not paid, the plaintiff would have a vender’s lien upon the property, and that the Wheeling and Lake Erie Railway Co., without question, took the land subject .to the vendors’ lien of the plaintiff.

Richards & Heffner,iov Plaintiffs. J.M.Lemmon, for Ry.Co.

Discussion has been had as to how far the plaintiff should have a lien upon this railway company. We think there can be no question under this decision in Railroad Co. v. Lewton, supra, that the plaintiff is entitled to a decree for the sale of the right of way of the company, and that that sale would .cover whatever rights the railway company have in the right of way.

In speaking of this vendor’s IÍ3n, so far as this court is concerned, we shall make the vendor’s lien applicable only to the property conveyed to the railroad company by Ames; but, in order tu enforce that lien, under the principles laid down in Railroad Co. v. Lewton, supra, and as a matter of necessity, an order must be taken for the sale of the whole of the right of way of the road, and so far as that is concerned, a decree will be taken for the amount due and an order of that kind entered.

A second question has been made as to the parties to this suit. It will be seen that in making this decree we do not find the amount that is due to the Mercantile Trust Company. It is also claimed that there are some persons who have — perhaps in this couunty — some judgments said to be liens upon portions of the road. Under the authority of the decision in Railroad Co. v. Lewton, supra, we do not deem it necessary to find the amount that may be due to the Mer-chantile Trust Company, cr to any other persons who are lienholders at this time. The sale will be made and the money brought into court with the right reserved to the Mercantile Trust Company to find the amount due to it and to marshal the respective liens of the parties. If parties have judgments, they may be brought in and made parties to the suit prior to the time when the respective rights of the parties to the suit are settled.

A decree may be entered in accordance with the suggestions that, have been made.


source: Caselaw Access Project

author: SCRIBNER, J.

license: Public Domain

text:
      (Sixth Circuit —Lucas Co., O., Circuit Court.)
    Before Haynes, Scribner and Parker, JJ.
    VICTOR GLADIEUX v. THE ST. LOUIS PARISH, OF TOLEDO, OHIO.

      Action at law — Cross-petition setting up equitable cause of action —Right to appeal— ”
    (1). ” Where plaintiff brings an action to recover balance due on a building contract, and defendant in its answer admits some of the allegations of the petition and denies others, and by way of cross-petition asks for reformation of the contract and for damages for non-compliance with its terms, and. the case is tried to a jury and a verdict rendered for the plaintiff, the defendant will have a right to appeal the case on the equitable cause of action set up in its cross-petition. But the appeal would not open up the law matter that was submitted to be tried by a jury; if the appeal takes up anything, it takes up only the equitable matters outside of the law claims which ;have been submitted and tried.

      Equitable cause of action insufficiently set out — Right to amend in appellate court—
    (2). A party may set out an equitable cause of action in his petition or in his cross-petition; and if he fail to insert all the material allegations essential to such cause of action, nevertheless, if the complaint be of an equitable nature, he may appeal ; and in an appellate court obtain further leave to amend and perfect; the allegations of his petition.
   SCRIBNER, J.

The case of Victor Gladieux against the St. Louis Parish of Toledo, Oh:c, et al., is before us on motion submitted by the plaintiff to dismiss the appeal in this court by the defendants.

The action below was brought upon a building contract entered into between the church and the plaintiff for the erection of a certain structure described in the petition.

The plaintiff avers his full performance of the contract, and alleges the contraot price of four thousand dollars, of which three thousand dollars have been paid, leaving still due a thousand dollars; also the sum of $19.85, which is alleged as due to the plaintiff for building a sidewalk, according tc the agreement entered into between the parties.

The defendants, answering in the case, set out certain admissions of some of the immaterial allegations of the petition, but deny all the other allegations not specially admitted.

Then, by way of cross-petition, and further answering to the petition, the defendants say, that on or about July 22, 1892, they entered into a contract in writing with the plaintiff in this case for the erection and completion of a two-story brick residence on the real estate in the petition described for the agreed sum of four thousand dollars and according to specifications and plans referred to in che written contract, of which á true copy is hereto attached and made part thereof, marked “Exhibit One.”

Defendants further say that there was drawn up by said plaintiff, or his amanueusis, and that it was a part of said contract to be reduced to writing, that the plaintiff should forfeit the sum of two dollars per day for each and every day after October 15, that said house should remain unfinished and uncompleted; and that said plaintiff, for the purpose of deceiving said defendants, omitted or caused tc be omitted from said written oontract the agreed provision or condition to finish said contract work by October 15, 1892. under a forfeiture of two dollars for each and every day the .eafter.

These answering defendants say that plaintiff agreed to finish said building on or before October 15, 1892, under a penalty as aforesaid and that he failed to finish the building and the same is not completed, all to their damage in the sum of $450.

Defendants further say that the plaintiff agreed to construct said house in a workmanlike manner, according to specifications here annexed, but that, in disregard ol his said obligation, under the directions of said specifications, he has failed and refused to comply with the same in his: And then there are pointed out numerous imperfections and failures of performance on the part of the plaintiff, as is claimed by the defendants, to the number of 17 — <-more than 17 in number in point of fact. And in many other regards plaintiff has failed to comply with the said plans and specifications of the contract,all to the damage of the defendants in the sum of $600. Wherefore these answering defendants praj that said contract in said petition set forth and thereto annexed be reformed as to the provision for the penalty of two dollars a day for failure to complete the building by October 15, 1892, and for judgment against the plaintiff, in the sum of $1050, and of their costs herein expended.

The plaintiff replies denying the allegations of the answer, especially the allegation of fraud in the omission of some of the alleged stipulations — as to the stipulated damage for default in the completion of the work; also the allegation relating to the imperfections in the work.

Upon these pleadings the case went to trial before the court of common pleas and a jury having been empaneled to try the issues entered into or made up between the parties.

The jury found a verdict for the plaintiff for the substantial amount of his claim. Thereupon the court made an entry in which this language appears: “And thereupon in accordance with the verdict of the jury duly rendered in this action the court find there is now due (so much money) and rendered judgment thereon.’’

. A bond to perfect appeal having been filed, it was duly transferred to the clerk of this court, and the plaintiff filed his motion to dismiss appeal on the ground that the case is one in which neither party was entitled to demand a trial by jury; that a jury was demanded to try the case, and that therefore neither party has a right to appeal. It is upon that motion that the case has been heard.

As I have stated, the plaintiff does not demand personal judgment in the case. He sets up the fact constituting his claim against the defendants, and the petition proceeds:

“Wherefore, plaintiff prays that an account may betaken of the amount due him upon said claim, and that the same may be declared a first lien on said lot, and that the liens thereon may be marshalled and said lot sold, and his said claim with interest thereon paid from the proceeds of said sale, and for such other and further relief as he may be entitled to, ” etc.

Manifestly there is here no claim for personal judgment; nothing which would entitle the plaintiff tc demand a trial by jury.

The answer, as has been shown, alleges fraudulent conduct cn the part of the plaintiff, taking issue with certain allegations in the petition as to the performance cf work. The defendant alleges that the plaintiff perpetrated a fraud upon the defendants in this: That the contract was drawn by plaintiff; that it was a part of the contract and was to be reduced to writing, that said plaintiff was to pay to .these defendants the sum of two dollars per day for each and every day after October 15, 1892, that said house should remain unfinished and uncompleted: and that said plaintiff purposely, and to deceive those defendants, omitted or caused to be omitted from said contract the agreed provision or condition to finish said contract work by October 15, 1892, under penalty an forfeiture of two dollars per day for each and every day cf delay after that time. And the defendants allege damage to the extent cf some $450.

New, it appears bythe ruling of the supreme court in the case of Ellsworth v. Holcomb, 28 Ohio St., 66—at least it was referred to in the argument, that pleadings containing allegations of that kind, if the facts are sufficient to make a case of fraud, or present such a cause of action within the original or any cross-petition, it is appealable to the appellate court.

In the case of Ellsworth v. Holcomb, supra, the first paragraph of the syllabus reads as follows:

“Where a plaintiff brings an action for the reformation of a written contract, and at the same time asks for a money judgment, to which he would 'be entitled only in the event of his obtaining the equitable relief sought; and the only issue of fact made by the pleadings is on the right to such equitable relief, neither party has a right to demand that such issue shall be tried by a jury.”

Here the defendants in their cross-petition pray for a reformation of the contract in the particular which I have.referred to, and they ask that judgment may be rendered upon the contract as reformed and the damages they have sustained in consequence of the failure, as alleged by them, on the part of the plaintiff to comply with the terms of the contract in the particular there complained of, and the allegations of the cross-petition in this regard are not sufficient to make a case clearly, it seems to us, and under the ruling of the court in the case of Ellsworth v. Holcomb, supra, the parties defendant would have the right to appeal from the judgment or finding against them as the issue was made here in regard to this particular matter complained of.

It is quite questionable whether or not 'the facts alleged in this cross-petition in this regard are sufficient to make a case. It is alleged that the cross-petitioners were ignorant of the fact that this omission was made and that the plaintiff failed to insert the provision which was agreed upon and in some other respects the petition seems tebe somewhat defective in that regard; but we do not think that these omissions or defects would deprive a party of his right to appeal.

A man may set out or undertake to set cut an equitable cause of action in his petition or in bis cross-petition; he may fail to insert all the material allegations that- are essential’to such cause of action; nevertheless, if the complaint be of an equitable nature, he may appeal, and in an appellate court obtain further leave to amend and perfect the allegations of his petition.

This appears in the ruling of the court found in the case of Grant, etc., v. Ludlow’s Admr. et al., 8 Ohio St., 1, 31, 32, where the court say:

“Like a cause appealed into the district court from the court of common pleas, we take up the case at the point where it stood when reserved; and, as in cases of appeal, have the same control ever the subject matter of the action, the pleadings, and, if necesssary, the issuing and service of process, and the final determination of the case, as the district court could have exercised, had that court retained it for final adjudication.”

And further, the court say:

“But it not unfrequently happens, especially in equity cases, that facts and allegations necessary to determine the subject matter of the original cause of action, and' dependent upon, and growing out of the original causes of action, have been omitted in the pleadings below, or the cause of action is imperfectly stated. Such amendments have been heretofore allowed on appeals in this state; and when the collateral facts, in equity suits, made it necessary to bring a new party before the court, it has been allowed. Such amendments are made for the purpose of settling and fully determining the cause of action appealed.”

Applying this doctrine to the language of the cross-petition under consideration here, that if the allegations are not sufficiently clear to make an equitable cause for relief, that upon an amendment of the cross-petition such allegations may be supplied, if the party desires to supply them, and that if he be able to make good averments in his cross-petition in respect to the alleged fraud in omitting a material condition from the contract, he is entitled to appeal his case to the oircuit court upon the allegations in his cross-petition, and the issues taken as to those allegations as to what shall be done with the case in the event that, upon the final determination, the issue made as to the fraud is left uncertain and undetermined by the court.

Then,as tc the.remaining part of the case — the further allegations of the answer and cross-petition are that the plaintiff has failed to perform the contract according to its terms, and that the work and materials are defective in many particulars, all tc the damage of the defendants in the sum of $600, for which judgment is prayed against the plain-tiff.

At first sight, it would seem that these averments of the answer and cross-petition make an equity case <r counter claim or cross action on the part of the defendant below against the plaintiff. That is tc say, if the plaintiff himself were not there suing upon this contract and demanding the contract price of his work and materials, the defendants would be suing him upon his contract in an original action to recover damages. Of course, if issues were taken in such a case, it would indicate a cause of action for trial by jury. But it will be observed here that the plaintiff is suing for $1,019 and some odd cents. If that amount is d.ue, even •conceding that the defendants have a cause of action as is claimed by them upon the grounds of .complaint as is claimed by them upon a building contract; nevertheless, they could claim nothing-beyond an insignificant sum in the way of damages because, according to the contract price, they are still owing the plaintiff the sum of one thousand dollars in addition to the $19 and some odd cents for the amount of the sidewalk expense. .

The defendants, it is true, allege that they have suffered .damages in excess of the damages that the plaintiff claims, but it is very slightly in excess. Their ' complaint really stands in the nature of a defense against the claim of the plaintiff, and not as an independent cause of action upon which they are entitled to recover as against the plaintiff, it being conceded that they have paid the plaintiff all but the sum of $1,019 of the amount that is to be paid for the work and labor.

It is a case then, according to the facts set up by the defendants, assuming the statements in that regard to be true ■ — it is a case, not for the recovery of damages, not for a judgment for damages, unless it might be for an insignificant sum. It is a matter of defense, not a matter of recovery against the plaintiff. We doubt very much whether, in such a case as that, where a plaintiff brings an action in •equity to enforce a mechanic’s lien and the defendant comes forward and admits the making of a contract and alleges non-performance or breach of contract on the part of the plaintiff whereby he has not earned his contract price — we •doubt very much whether, under such circumstances, if the case is taken from the equitable jurisdiction of the court where it is put by the petition of the plaintiff, it presents an action at law for trial by jury.

But aside from that, if it should be found that an action .at law was presented by the answer and cross-petition, cn trial in the determination of that to a jury, if that is the proper tribunal, and an appeal taken in the case would not open up the law matter that was submitted to be tried by a jury, it is conclusive that if the appeal takes up anything, it takes up only the equitable matters outside of the law claims which have been submitted and tried.

In the case of Sallady v. Webb, 2 Ohio C. C., 553, which was fully relied upon by this court in the case of Brack v. Gaa et al., 6 Ohio C. C., 580, is found quite an interesting discussion of a kindred subject of which I will read the following four paragraphs, being the syllabus:

“1 If the plaintiff sets out in.his petition an equitable cause of action, and no issue of fact is taken on the aver-ments thereof; but the defendant sets up new matter in his-answer constituting a legal cause of action, which, if established, will extinguish the case made in the petition, such legal cause of action is triable by jury.
“2. The plaintiff may appeal from a decree in such case-dismissing his petition, although the decree is based upon a finding that the sum due on the legal cause of ' action is-equal to or exceeds that claimed by him in his petition, and thus extinguished it.
“3. That such appeal does not open and bring for re-trial1 in the circuit court the issues joined and tried in the court of common pleas upon the new matter set cut in the defendant’s answer.
“4. That if. in the circuit court, no issue is taken on the averments of the petition, the court will render such decree, as the justice of the case requires in view of the case confessed in the petition, and of the legal rights of the parties as settled in the court below.”

The following is the statement of facts in the case of Sallady v. Webb, supra:

“This aotion was brought to foreclose a mortgage given by-defendant Webb in 1881, to his co-defendant, Wheeler, and assigned by Wheeler to the plaintiff. No issue was taken on. the averments of the petition.1 Webb, the mortgagor, answered, setting up: 1. That his co-defendant, Wheeler, in-1874, sold him the mortgaged premises, and that the mortgage was executed by him to Wheeler to secure the balance-of the purchase money unpaid at the date of the mortgage. 'That Wheeler had induced him to purchase the premises by-misrepresenting the location of their boundaries, having-no reasonable grounds to helieve the statements to be true, and that he wao greatly damaged thereby.
“2. That Wheeler, at and before the time the mortgage-was assigned, was indebted to him'for timber before that-time sold and delivered to Wheeler. The reply denied the-averments of the answer.”

The opinion in this cause was delivered by Judge Bradbury who afterwards became one of the judges of the supreme court, and he says:

“This action was brought by the assignee of the mortgage - to foreclose it, the plaintiff making both mortgagor and mortgagee defendants. There was no prayer for a personal judgment.
“The petition set forth a cause of action, purely equitable, in which neither party had a right to a trial by jury, and therefore, by sec. 5226, Rev. Stat., either party could appeal to the circuit court.
“The fact that no issue was joined on the averments of .the petition, cannot be held tc defeat the right to appeal: ■ there is nc such express limitation of this right made by the statute providing for the appeal. And it is clear that in cases where no issue of fact is taken on the averments of the petition, the deleated party may appeal from a .decree adjusting his rights upon the facts stated therein, as in oases where, upon issue joined, the court has -found the facts against him. The veiy point of contention may well be over disputed rules of law applicable to admitted facts. The right to appeal is given in the broadest terms; the language of the statute cannot be construed to confine this right to cases in which the contuntion is, in whole or in part, over the facts. Tf this view is correct, it would seem to follow that the right to appeal the case made in the petition, cannot be defeated by the defendant setting up in his answer a legal cross-demand which he may do or not at his election, but'which if he does set up, compels the plaintiff to take issue upen, or be defeated in his action. The motion to dis-miss the appeal is therefore overruled.
“The plaintiff’s appeal being sustained, the defendant Webb, confesses his petition to be true by taking no issue upon its averments, but moves the court for a decree finding that the plaintiff’s claim therein set forh is extinguished by the finding of the court below on the legal cross-demands set up by him in his answer, the court below, as disclosed by the record, having found due Webb, thereon, from the plaintiff’s assignors, a sum of money.greater that the plaintiff claimed in his petition. The motion is founded upon the claim, that the appeal of the plaintiff did not open up, for re-trial in this court, the issues of fact joined in the-court below on the defendant’s cross-demand.”

Then the court quotes from the statute upon the subject-,, and also quotes from the case of Buckner v. Mear, 26 Ohio St. 514, which shows wherein that case differed from the - one before him, and then the learned judge says:

“We therefore hold, that the appeai of the plaintiff in* this case did not opoD for re-trial in this court the issues joined in the court below on the cross-demands set up by Webb, and we decline to hear evidence relating thereto. And it appearing by the record, that the sum found by the court below due to Webb on his cross-demands, is greater than the claim of the plaintiff, we hold that the plaintiff’s claim is extinguished thereby.”

It seems that the result from that case, granting that there was a legal Gross-demand submitted to the court fcr trial in the action' — cross-demand against the mortgagee who had transferred the claim upon which the plaintiff had brought his action, to the plaintiff — granting that there was such a cross-demand and a trial and judgment by the court below upon the issue made as to the cross-demand, and the facts presented as to the cross-demand, the court was of the opinion, and so adjudged, that while the plaintiff had brought his suit, the mortgagee might appeal, bu't that the appeal did not open up the judgment that had been rendered upon the cross-demand of the original mortgagee against the mortgagor, both of them having been parties defendant to the”aotion. That the judgment of the court upon trial as to the validity of that mortgage was conclusive, not only upon the mortgagor and mortgagee, who were parties defendant in the action, but also as upon the plaintiff himself; that appeal did not open up that decree or judgment; that nevertheless an appeal might be taken by the plaintiff in the action. The result was, under the ruling of the court that, the court having found that the mortgage was entirely ex-tinguishd by reason of the facts shrwn in the case, there was no validity as against the mortgagor, and that, having found the amount of damages as against the morgagee in favor of the mortgagor in the cross-petition that exceeded the amount'of the mortgage, the result of the petition of the plaintiff in the action even for foreclosure was dismissed.

Now here, if this was a case proper to be tried by a jury, and was a case in which the parties were entitled to a trial by jury upon the issue made as to the cross-petition in the case — if that is so, the ruling of the court in this case would ■seem tc conclude as to the facts covered by the verdict returned by them — it would not interfere with the right to appeal as against the claim of the plaintiff upon a mechanic’s lien and an equitable proceeding which would conclude ■the matter as to the facts found and determined by the jury in a matter for consideration in this court, and if it was a matter not triable to a jury, that ia, these matters set up in the answer by way of abatement or reduction here,then the whole matter would be opened for trial here, and upon the whole our view is that the case was one in which air appeal could betaken and the motion to dismiss the appeal is therefore overruled. As to hów far the parties may go into the matters that were passed upon and determined by the jury we do not undertake to say.


text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Scribner, Haynes and King, JJ.
    BRANDON v. THE L. S. & M. S. RY. CO.

      Statement volunteered by a witness on matter not in issue under allegations of petition, to be ruled out—

    (1). Where a witness in the course of his cross-examination, volunteers a statement not respon ive to the question, to the effect that to do a thing that the witness is asked whether he had ever seen done, in a general way, that he had seen it done, but that it had been against the rules to do that, and he is inquired of as to what rules he had reference and what was the rule. On cross-examination, counsel, asking to ascertain what the matter was that the witness was talking about, at the very moment it was disclosed that it related toa printed rule of the company, that the witness had seen posted along the line of tbe track, counsel promptly moved to exclude that statement for the reason that the party had not had any notice of any such rule and that no charge or complaint as to any such rule was made in the petition, a motion to rule out such testimony should be sustained.

      Recalling witness for further cross-examination at any stage of the trial, proper—
    (2). It is a common practice for counsel, and permitted by ' the courts, to recall a witness at almost any stage of the case, for the purpose of cross-examination, particularly where it is desired to contradict a statement of a witness who has testified, by the evidence of other parties.

      Witness to state facts, not opinions—
    (S). It is not for the witness to state to the jury whether it would be convenient or inconvenient or how convenient or inconvenient it would be for a man engaged in certain worn: to do it in a certain way, but the witness could state to the jury the exact facts and situation to enable the jurors tó determine whether or not it was convenient or inconvenient to do it in a certain way.
    Error to the Court of Common Pleas of Lucas County.
   SCRIBNER, J.

This is a petition in error tc reverse the judgment of the oourt of common pleas in a case wherein the plaintiff in error was the plaintiff and the defendant in error was defendant, whioh verdict and judgment in the court of common pleas were in favor of the railway company.

This action was commenced in the court of common pleas on March 8, 1890. It was brought to recover damages for an injury alleged to have.been sustained by the plaintiff while in the service of the railway company, in consequence of alleged negligence on the part of the company connected with the movement of cars in one of the elevators used in connection with said railway. The record shows in regard to this case, that at the April term, 1890, it was tried to a jury in the court of common pleas, and that at that trial the jury found a verdict in favor of the plaintiff. Motion for a new trial was filed by the defendant railway company, which was granted by the court and the verdict was set aside and a new trial ordered. Afterwards, at the September term, 1891, of the oourt of common pleas, the case was again tried to a jury, and upon that second trial a verdict was again returned in favor of the plaintiff. A motion for a new trial, made on behalf of the railway company, was, in January, 1892, considered by the court, and the motion was overruled and judgment rendered upon that verdict in favor of the nlaintifí and against the railway company. As a part of the history of this case of which we have knowledge, the railway company prosecuted a petition in error in this court to reverse that judgment, and upon the hearing of that petition in error this court reversed the judgment of the court of common pleas and granted a motion for a new trial upon the ground that the verdict was not sustained by sufficient evidence. The record in this case presented here does not show that a proceeding in error was ever' prosecuted,' or that the judgment rendered in the court of common pleas in favor of the plaintiff at the time it was made was ever reversed, or that a new trial was ever granted. The mandate sent back to the common pleas indicated what had been done in this court in this case, but ir appears never to have been entered upon the journal of the court of common pleas by the clerk, as it should have been done, and as was required by the statute to be done; but the journal entry here proceeds to show that in April, 1895, another trial was had of the case, and upon that trial the verdict of the jury was in favor of the defendant. A motion for a new trial by the plantiff below was overruled, and a judgment was rendered in fsvor of the defendant. The plaintiff then filed bis petition in error in this court, and the case is now before us upon the petition in error so presented by the plaintiff below.

The plantiff in error, in the petition in error, assigns for error:

“1. That the said court erred in ruling out the evidence of the witness Patrick Daugheny, offered at the said trial by the said plaintiff, as shown on pages 46 and 47 of the bill of exceptions.
“2. That the said court erred in excluding from the consideration of the jury the evidence of the witness .John Ger-kins, as shown on page 108 in the bill cf exceptions filed herein.
■ “8. That the said eourt erred in allowing Mr. Potter,, the attorney for the defendant, to cross-examine Thomas Brandon, the plaintiff, and introduce the testimony of the plaintiff as he did by such cross-examination after the plaintiff, had rested his case , as shown on pages 186 and 187 of the bill of exceptions filed herein.
“4. That the said court erred in sending the special finding to the jury, as requested by Mr. Potter, the attorney for the defendant, and erred in instructing the jury to answer such findings by yes or no, and erred in instructing the foreman of the jury to sign such special findings of faots, as shown on page 162 of the bill of exceptions filed herein.
“5. That the said judgment was given for the said defendant, when it should have been given for the plaintiff in error.”
Upon the disposition of this case upon the petition in error filed by the railway company,'the case has been considered in all its material facts, and was discussed by the court; and 1 refer to the opinion delivered upon that occasion as stating the principal faots bearing upon the acts of the parties as developed by the testimony,and the view then taken by this court in considering these facts, and I propose to avail myself now of the statement then made as furnishing a brief method of stating the facts'in the case as we view them:
‘‘This case comes into this court upon a petition in error from the court of comon pleas. On April 11, 1889, Thomas Brandon, plaintiff below, was in the employ of the Lake Shore and Michigan Southern Railway Co., as a laborer in elevator ‘‘A,” located in this city. His sérvice and duties consisted in assisting in moving, loading and unloading cars with grain. The elevator in which he was employed was furnished with bine into which and from which grain was loaded and unloaded. It was also furnished with scales upon which cars were run by means of railway tracks, being loaded from or unloaded into these bins. At the time at which the accident occurred which is complained of in this proceeding, the company used for the purpose of moving its cars upon the scales to be loaded, and for the purpose of removing the leaded cars from the scales and to place thereon other cars, a rope and certain tackle which was operated by steam power. There was a drum or cylinder, whichever it may be called, located in the elevator near these scales. This drum or capstan was set in motion and was caused to revolve by steam power, and a large and heavy rope was wound around this capstan or drum, and on the end of it was a large hook which was attached to the car, either where a single.car or more than one was to be moved. This rope was coiled several times around the drum, and ata certain time a signal would be given to the engineer to start the drum or .capstan and put it in motion; and that being done,.the drum being put in motion, a man would take hold of the rope and walk along in the proper direction, tc manage it, and the drum so revolving, with the repe coiling about it, and a hook at one end attached to the car, would put the car in motion and move it towards the scales. Upon reaching these scales the forward car, the one which was intended to be placed upon the scales for the purpose of being loaded, would be caused, by the force or motive power imparted to it, to contact with the loaded car upon the scales, and by force of the contact and collision would force tire loaded car off the scales upon the track before it, and the forward loaded car of the moving train or string of cars would be thus forced upon the scales, and there stop, a man being thero to keep it from running of the soales by the use of a block or some such apparatus. This method of moving empty oars from the scales, and forcing the loaded cars upon the scales, had been in use for some considerable period of time. Prior to that, horse-power was used — prior to the adoption of steam power. Horses had been attaohed or hitched to the repe, and by a proper movement upon the part of the horses the empty cars would be forced against the leaded car driven to, and the empty cars’ would then be placed in position on the scales for the purpose of leading.
“The plaintiff below, Mr. Brandon, had been in this service perhaps t9n to twelve years, and during a considerable portion of that time was engaged in the work about the elevator, and employed in the work of plaoing cars on the elevator scales for loading and unloading, for several years.
“On April 11, 1889, the date I have already mentioned, a loaded car was standing on the scales. It was desired to remove that car from the scales and place another car thereon for the purpose of being leaded. Four empty cars were there; the men were at their proper planes; the hook of this rope was attached to the second car from the front cr in advance, and the scales, I should say, were located at the north end or north part of the elevator building. The cars were moving from the southern portion of the building northward along the track, and the loaded car was standing upon the scales at what was known as bin “B.” The four cars, coupled together, were brought forward for the purpose of being sent, in the manner I have mentioned, against the loaded car. The hook in the rope was attached to the second car; the rope was properly adjusted around the drum; the proper signal was given; steam was applied, and the cars were set in motion and moved towards the scales, and were moving about as fast as a man could walk, but not a-fast w'alk.
“As the advanced car approached the scales, Mr. Brandon —who with his fellow laborers was at that time properly attending to his duties — stepped in between the first car and the second car, to uncouple them. The slack of the cars was necessarily taken up by reason of the fact that the hook and rope were attached to the second car and they were being propelled northward towards the loaded car by means of this attachment and the application of steam power to the dram. One of the other men moved forward to go in and make the coupling; but Mr. Brandon was nearer and succeeded in getting into position first. It seems that the pin stuck, or did not readily come out from the drawbars. The advanced car came into collision with the loaded car upon the scales, and by force of that collision, of course, rebounded and was forced backward.
“In some way, Mr. Brandon’s hand and arm were caught between the dcadwoods, and were injured. It is to recover for that injury that he brings this action. In the court of common pleas he recovered a verdict upon which judgment was rendered, and this action was brought here by the company tc revere that udgment, mainly upon the ground that the verdict was not sustained by sufficient evidence.”

The facts are still further elaborated in the conclusion of the opinion, TChicb is:

“ We have carefully looked through this record, with an anxious desire to do exact justioe in the case, but we are unable to see our way clear in the discharge of our duty, to permit this judgment to stand, and the order will be that the judgment is reversed and the verdict set aside, as not supported by sufficient evidence, and the cause remanded for a new trial.”

The record in this case is made.up largely — to a considerable extent, at least — of the testimony adduced upon the former hearing, but there is some additional testimony carried into the record. We are unable to discover in the record .anything to lead us to oonclude that the judgment upon the present hearing should be in any respect different from that rendered upon the former hearing of the petition in ■error.

There are, however,some additional matters assigned — or, rather, presented — as bearing upon the case, set out in the petition in error, which I have read, and to which I will call attention.

It. is suggested in the brief filed by counsel for the plaintiff in error, in the first place, that he ought to be permitted to intervene in this particular: ‘‘We contend that the first ground of error is well taken.” That ground is ‘‘that the court erred in ruling out the evidence of the witness Patrick Daugheney, etc.” And it is said here (in the brief) that ‘‘the witness, Daugheney, the record shows, was experienced in his business, and he was simply asked to give his opinion upon a given statement of facts on a point within his experience, and which is always proper. This error was prejudicial to plaintiff’s rights.”

I will here refer to the evidence briefly. The record shews this action on the part of the court. Mr. Daugheney was a witness upon the stand, introduced by the plaintiff, and he was asked these questions:

“Q. What was it you were told to do?”

(In this examination the witness is testifying to matter 'Occurring at the time of the accident ) He answers: ‘‘As •soon as it would hit this car that was loaded, to take the hook off, take off the repe — he gave the signal.” (That is, he was asked to describe the method of transacting this business, and he made that reply.)

“Q. What was the fact as to whether you took the rope off, after, or not, as it hit the loaded car? A. I could take it off after it hit another car, but not with the other men on it — the minute it slacked I could take it off quick.
“Q. You spoke about a backwards and forward motion that these oars had, how Jong did that last? A. Well, it didn’t last much.
“Q. What effect, if any, did this rope, operating there in connection with these pulleys, have upon the ccnvenience of getting up and down alongside of the track there between the cars and the side of the elevator?’
‘Mr. Potter: I object to that; I think that he might describe the space and the conditions, and how it operated, but it is not for him to give his opinion about it. •
“Mr. Hamilton: I want his experience; I don’t want his-opinion.
“Mr. Potter: I object to it.
“Mr. Hamilton: Our contention is, that this was a dangerous place for that sort of business.
“The.Court: The witness has described to the jury the space that there was there between the car and the plat-' form, and I believe he called attention to the fact that the rope was on the ground, or near the ground; that they had to step over it, etc. It seems to me that it is for the jury to determine from the evidence as to the convenience or inconvenience of it.’’

The-objection was sustained, and counsel below excepted.

Now it appears to us that the court was right in this ruling. It was not for the witness to state to the jury whether it would be convenient or inconvenient or how convenient or inconvenient it would be for a.man engaged in this work to pass over the ground upon which these cars were being moved, or this rcpe was being used. The witness could, as he did, state to the jury the exact situation here; by staling the facts and situation, he could enable the jurors to determine whether or not it as convenient or inconvenient to pass. We think, therefore, that the court committed no error. Besides, I might suggest that the record discloses no offer on the part of counsel for the plaintiff to prove- anything; he simply asks the question as to whether it was cm-venient or inconvenient, and the court holds that that is a question for the jury, and the witness had been permitted to state the facts surrounding, and the counsel excepts and leaves it there.

The next objection relates to the testimony of John Ger-kins, and the counsel in his memorandum says: “We cou-tend that the second ground of error is well taken for the reason that the evidence was simply in proof of facts that tend to prove negligence, even to the extent of violating the written rules of the company as posted and published. ” The assignment of error is: “That the said court erred in excluding from the consideration of the jury the evidence of the witness John Gerkins, as shown cn page 108 in the bill of exceptions filed herein.” Mr. Gerkins was a witness called by the plaintiff, and in the course ol his cross-examination, on page 105 of the record, this appears:

“Q. You have no present recollection of.seeing them butt a loaded car off by'running empty cars down against it? A. If they did, it was done by mistake; it wasn’t allowed.
“Q. I am not asking you that; I am asking you this: Have you any recollection during the fourteen years of your service there, of seeing it done that way? A. I think I saw such things when it was done, but it wasn’t allowed; where it was done in case that they could’t help it, something like that.
“Q. You say it wasn’t allowed? A. No, it was against the rule.
“Q. Against the rules? A. To bump the car off the scale —entirely.
“Q. Who established that rule? A. It was a Lake Shore rule from headquarters.
“Q. Did you ever see such a rule as that? A. They never showed me the rules, but W. L. Stowe brought the rules there; yes, I saw the rules there; that no car should be bumped off the scales; W. L. Stcwe brought the rules there.
“Q. When did you see that rule? A. That was a good while ago, because the scales used to have to be in repair.
n Mr. Potter: He has spoken of a rule here. There is no charge made here or complaint; this is the first time I have heard anything of that kind, and it was a remark made by the witness, and was not in response to an interrogatory put by Mr. Hamilton. It seems now that this rule was a printed rule. I think that the whole subject is incompetent and irrelevant,, and I ask to have it removed from the jury.
“Mr. Hamilton: I object to that. It has all been brought cut by the gentlemen.
“Mr. Potter: It is purely a matter volunteered by the witness. There is not a complaint that any rules of the company have been violated in that regard.”

And the statement,of Mr. Potter is true; the petition makes no allegation on that score.

“Mr. Hamilton: The objection I make is that this matter has been brought out by himself. 1 I am not talking about whether it is relevant or irrelevant' — I didn’t ask him about the rule, but, my friend pushed the inquiry as to the practice of butting those oars off, which he said never existed, and then he draws out this rule. ”

The controversy is pursued here for a time, and finally the court says this:

“The question arose in this way: In answer to a question the witness' volunteered the statement that that was against the rule — cf course, it didn’t appear at that time what rule was in the mind of the witness, or what regulation he referred to, cr anything about it. I take it that the counsel for the defense had a right to wait until he had a ohanoe to examine the witness and refer to this matter. Now, on cross-examination, the witness testified that what he meant was that it was a rule uf the Lake Shore Company, the defendant in this case, and that that rule was in writing. It seems to me that defendant had a right to wait: until it was developed what the witness meant by this statement, before he asked that it be excluded. I don’t know what the effect would be in this case one way or the other under the issue. The witness volunteered the statement; it was not in response to the question. And in explanation of this statement, on cross-examination, that the witness attempted to give of the statement made on direct examination, he has ■spoken of the written rules of the Lake Shore Company in reference to the handling of these cars. They have not had ■any notice of anything of that kind, and I think the motion should be sustained.”

We think the court was right in this. The witness in the course of his cross-examination, made a statement to the ■effect that to-do a thing that the witness is asked whether he had ever seen done, in a general way, said that he had seen the loaded cars, standing on the scales butted off, but that it had been against the rules to do that, and he is inquired of as to what rules he had reference and what was the rule. On cross-examination, eounsel, asking to ascertain what- the matter was that the witness was talking about, at the very moment it is disclosed that it relates to a printed rule of the company, that the witness had seen posted along the line of the track — counsel promptly moves to exclude that statement, for the reason that I have read, and the court' sustains it; and we certainly think the court was right in the ruling that it made in that respect.

The third objection is, as to the court permitting counsel for the defendant, after the plaintiff had closed his case, to recall the plaintiff for the purpose of cross-examination. Immediately after the plaintiff had rested,Mr. Potter,counsel for the company, said: “I want to read the cross-examination of Mr. Brandon, on the former trial of this case as a part of his cross-examination on this trial.

Hamilton & Ford, for Plaintiff in Error.

E. D. Potter, Jr., for Defendant in Error.

“Mr. Hamilton: I object to that.
“Mr. Pott,er: Then, if you object, I will'recal Mr. Brandon for further examination and put him on the stand.”

The plaintiff was recalled, and a further examination was had, and he made his statement, and we can see no substantial ground for objecting to this being done. Certainly it is a common practice for counsel, and permitted by the oourts, to recall a witness at almost any stage of the case, for the purpose of cross-examination, particularly where it is desired to contradict a statement of witness who has testified,by the evidence of other parties. Now here the witness called was the plaintiff in the action. It is a common practice, and we think sanctioned by the rules of law.

Now then, there was.a further objection: That the court permitted a special finding in the case to be submitted and answered by the jury. These interrogatories were submitted to the jury upon the application of the defendant below.

The first was: “Did the plaintiff know of the fact, at the time he stepped in to uncouple the cars, that there was a-loaded car-upon the scale track to be moved off of the scale by other cars being pushed or moved against it? And the answer returned by the jury was “Yes.”

“2. Was the plaintiff familiar with the method and manner in which cars were'moved in said elevator and off the scale? A. Yes.
“3. Did the plaintiff attempting to draw the pin, know, or could he have known by the exercise of ordinary care on his part in the performance of his service, of the danger of having his hands or arms caught between the deadwoods of the moving cars when the same case together? A. Yes.
“4. Was the plaintiff himself negligent, and if so, did such negligence or want of proper care on his part oause or contribute prcximately or immediately to produce the injury of which he complained? A. Yes.”

Well, the statute, as it seems to us,. expressly provides that this may be done. In point of fact, the requirement is imperative, were the interrogatories submitted are relevant and pertinent to the issues to be tried, and we think these questions bear directly on the question of contributory negligence on the part of the plaintiff below.

This covers all the grounds assigned for error in the petition in error, and we fail to find that the record discloses any error in these proceedings, and the judgment therefore will be affirmed.


author: Bentley, J.

text:
    (Sixth Circuit—Lucas Co., Circuit Court.)
    Before Bentley, Haynes and Scribner, JJ.
    JOEL H. NORTON et al. v. MARGARET PARKER.

      Action for tort — Interest on damages—

    (1). Where, in an action for damages for a tort, the jury in its verdict specifies how much the damage amounted to at the time, and how much the interest thereon would amount to, giv ing the sum total as its verdict, such verdict would not be invalid on the ground that no interest can be allowed on damages for a tort. Under the authority of Railroad v. Cobb, 35 Ohio St.', 94, the jury in awarding damages for such an injury may include compensation in the nature of interest.

      Reversal of judgment below as to one joint party only—
    (2). The circuit court may, on error in a case where there are several plaintiffs in error joined, reverse the judgment below as to one of them and affirm it as to the other.

      Bill of exceptions filed during subsequent term of court — Entry, failing to state as of previous term — Presumption—
    (3). where a party is allowed thirty days to file bill of exceptions and that the journal of that term of court shall be left open for thirty days after adjournment of the term for entry of its allowance, and the bill is filed within the thirty days allowed,, but the entry on the journal only states the date of the filing of the bill without sating that it was filed as of the previous term, the presumption will be that the bill was filed as of such previous term.

      Sale of furniture and boarding house by false representations— Measure of damages—

    (4). Where the sale of furniture in a boarding house at a certain price was induced by representations as to the profitableness of the boarding house, and the certainty of a renewal of the lease, which were found to be false, in an action for damages the measure of damages would be the difference of what that property, as it was — on the basis as it was represented, and that re-rental, as it was represented — would have been worth to plaintiff if such representations had been true, and how much was it worth at the time of the gale if these material facts were untrue.
    Error to the Court of Common Pleas of Lúeas county.
   Bentley, J.

Joel H. Norton and T. M. Meinhart brought suit on petition in error against Margaret Parker to reverse a judgment for two thousand dollars that Margaret Parker obtained against them in the court of common pleas in an action prosecuted by her therein and in which an attachment was issued. Her petition in the court of common pleas charges “That on or about December 7, 1887, the said defendants, T. H. Meinhart, whose full first name is unknown to the plaintiff, and Joel H. Norton, conspiring together to cheat and defraud the plaintiff, and in order to induce the plaintiff to purchase the whole of the furniture of two houses situated on Michigan avenue, in the city of Chicago, known as numbers 13¿¡8 and 1880,and which had theretofore been and was intended to be used for a boarding house,and pay them, the said defendants, therefor a large sum of money, to-wit, five thousand dollars, falsely and fraudulently and with intent to deceive the plaintiff represented to the plaintiff that the business of said house which had been theretofore carried on by said Meinhart, was a successful and profitable business, and that during the two years next preceding that time said Meinhart bad carried on the same as such boarding house, and that the said business had paid him a net profit of from two hundred to five hundred dollars per month, and that said Meinhart had made a contract with the owner of said property for an extension of the lease of said premises on the same terms on which it had been theretofore leased by said Meinhart and for any length of time the plaintiff might desire. That the plaintiff, relying upon such representations and with no notice of their falsity, but fully believing the same to be in all respects true, purchased all said furniture and paid said defendant a large part of said purchase price, to-wit, the sum of two thousand dollars.” Then the petition proceeds to set forth that said representations so made by the defendants were false and known to be false at that time by the defendants below; that the said businsss carried on by Meinhart at that place had, on the contrary, been a losing business and not profitable, as the defendants below well knew, and that, as a matter cf fact, there was no contract to renew said lease and that the lease could not be renewed; that the defendants below knew that, and that by means of these false representations they induced the plaiutiff to purchase this boarding house property, which without a renewal of the lease, would have been of very little value, as is stated in the petition,and charges that she has sustained damages by reason of the premises in the sum of twenty-five hundred dollars, she having paid about two thousand dollars cf the consideration money already.

An attachment was issued in the case and notice of garnishment served on the Ketcham National Bank. That branoh of the matter has already been before this court.

The defendants did not question the petition in any way by demurrer — did not call in question its sufficiency — but each of them filed an answer containing general denials, and the case proceeded to trial to a jury,and the jury rendered a verdict for upwards of two thousand dollars, against both defendants.

There was a motion for a new trial, which was overruled, and it is claimed that a bill of exceptions was duly allowed and made a part of the record-, embodying alhof the evidence and exhibiting the full proceedings of the court in the case.

This is a oe-tition in error filed here to reverse the judgment, and it assigns the following errors:

“1. That said verdict is not sustained by sufficient evidence.
“2. That said verdict is contrary to law.
“33. For errors of law occurring at the trial add excepted to by the plaintiffs in error.
• “4. That the court erred in overruling the motion of plaintiffs in error for a new trial and entering judgment on said verdict.”

The defendant in error claims that this bill of exceptions is not properly a part of the record, and should not be considered so far as it claims tc set forth all of the testimony and exhibits and any error based upon the overruling of the motion for a new trial for the reason that the verdict was not sustained by sufficient evidence. The entry at the trial term is as follows — -the case being tried at the January term, 18S9 — “To all which the defendant by their counsel then and there excepted and on their motion said defendants are allowed thirty days from the adjournment of this 'court within which to have their bill of exceptions allowed and signed, and it is ordered that when so allowed and signed within said time, said bill shall be filed and thereupon be and become a part of the record in this case. And the journal of this term shall be kept open for thirty days after its adjournment for an entry of such allowance to be made thereon. ”

The April term of the court began before the expiration of the thirty days after the close of the January term — -perhaps the January term closed upon the morning of the same day at which the*April term began — -on April 18, 1889.

The next entry upon the journal as originally certified, is this: “On May 4, 1889, an entry in said cause was made which appears on the journal of said court in the words and figures as follows, viz.(Giving the title and number of the case.) “On this 4th day of May, 1889, came the defendants and presented to the court their certain bill of exceptions herein, which being found by the court to be true is allowed, signed and sealed, and is hereby made part of the record of this cause. ’ ”

An amended certificate as to that journal entry has been filed in this case since this case came into this court, and is as follows: “On the 4th day of May, 1889, being within thirty days of the closing of the January term, 1889, there was filed in this cause an order, an entry of which appears on the journal of said court, being the journal of the January term, 1889, in the words and figures as follows to-wit:” (Giving the title aüd number of the cause and being the same as I have already read as first certified). • It is claimed that this entry of May 4 not appearing in and of itself to have been made as of the January term, the court will presume, under the circumstances of the case, that it 'was entered of the term when it was actually made, that is, of the April te m, and that it cannot be considered as an entry appearing upon the January term of that court. We need not enter into a discussion of this proposition, because it has already been considered in the hearing of a case reoently, and the court held in that case, as it does in this, that this entry must be presumed to have been of tire January term — 'the trial term — and that we must consider the bill of exceptions as a part in the record in this case.

There was some' testimony delivered orally before the court on the trial of the case, but the large bulk of the evidence, however, had been taken in Chioago by way of depositions upon the part of plaiutiff and defendants below. There are many exceptions to the testimony — objections to questions, in these depositions taken in Chicago, but the record in this case simply shows that the plaintiff introduced such and such depositions, which are attached, and that the defendants introduced such and such depositions, and it does not appear that the court of common pleas was called upon to consider those objections, only, as appsars by the record, I think,in one instance, which appears on page 49 of the bill, when the deposition of Margaret A. Meinhart was presented, where this bill of exceptions shows this, as the action of the court of common pleas: “During the reading of the last mentioned deposition, the following question, on cross-examination, was objected tc, by the defendants, as irrelevant and incompetent, viz.: ‘Q. Did not you state to Mrs. Kellogg, one of the boarders in that house, that Mr. Blain and Mr. Meinhart, your husband, in your presence, said words to the effect that they would take Mrs. Parker in the house, get' her money, and then kick her out?’ Which said objection was by the court overruled; to which ruling the defendants by their counsel then and there excepted.”

And following that, is this statement by the court: “That is not admitted for the purpose of enabling the plaintiffs to afterwards contradict deponent’s statement on this subject made on cross-examination.”

We have read the testimony in the case, of course including that which this objection calls in question,' and we are of opinion that, in view of the answer of the witness to this question, the defendants below were not prejudiced by the action of the court in this regard.

In its charge to the jury, the court gave a number of propositions as requested by the defendants below, and if it refused any, they are net set forth in the bill of exceptions and we will consider no claim of error regarding that. There are one or two that are modified by the court of common pleas,and an objection and exception was taken to that modification, by defendants. Without reading them, however, we will say that we are unable to see that the slight modifications that the court made to those requests were prejudicial, or that they made the charge of the court in that regard erroneous.

It was strongly objected that the court erred in its charge regarding the rule of damages of the case, the court’s charge in that regard being as follows:

“The injury is to be represented in damages; and the measure of damages would be: what would that property, as it was — on the basis as it was represented, and that re-rental, as it was represented — if it was falsely represented— w’hat would it have been worth to her if such representations had been true, and how much was it worth at the time of the sale, if these material facts were untrue. Now, the difference — if there is any — between what it would have been worth if tfie representations were all true, and what it was worth, those representations not being true, will be the amount of damages Mrs. Parker has suffered by reason of these things not being true. Now, what is that amount? That is for you to determine, if there is any such damages. ”

That is a part of the charge which was excepted to as not exhibiting the true rule of damages in the case.

The direot testimony did not indicate but that the value of the furniture in and of itself, if it were considered merely as to its general market value — no matter where it was — was, perhaps, less than what was paid for it, or agreed to be paid for it — five thousand dollars; hut it is claimed that the plaintiff below was induced to purchase it, which she otherwise would not have done, by these false representations regarding the value of the business about which it was used and about which it was iutended that the plaintiff below should use it, and that although the furniture considered in aiad of itself, regarding its market value, might have been worth the five thousand dollars, yet if the plaintiff was induced to put her money into it and thereby embark in a losing business by reason cf these false representations, the measure of her damages would be — not what the market value of the furniture would differ from' the price which she agreed to pay for it, but the difference in its value to be used in that business, and what it would have been worth if the representations by which she was induced to purchase it had been true. It is perhaps a question of some nicety, exaotly what the true rule of damages would be, in a case of that kind, but ye are not satisfied and we do not feel at all clear but that the court of common pleas in its charge indicated the proper rule of damages. It would seem that under the ciroumstanoes if she was induced to put her money into a losing business by means of false representations, it could not be said that she lost nothing because the personal property which she bought was worth what she paid for it.

On the other hand, if it were insisted that the rule of ker damages was the difference in the profits which were represented to be in the business,that would leave an uncertainty regarding the matter because it did not appear how long she might have carried on that business and made the profit that the defendant, Meinhart, had been making, or how long a time it was contemplated between them that the business should be thus carried on.. The time was indefinite — she was simply to embark in the business of carrying on that house, which was a losing business, as it is claimed.

Now it occurs to us that the rule cf damages is as the court of common pleas laid it down — the difference in the value of what she bought in the situation it was, and what it would have been in that situation for the uses and purposes for which she bought it, if the representations had been true.

Objection is made that the verdiot on its face is improper, on account of its including interest — this being an action in tort. The verdict is as follows: “The jury empaneled in the above entitled action having been sworn well and truly to try the issue joined between the parties and a true verdict to render, for verdict find and say that we find for the plaintiff,and assess her damages at the sum of $2,075.00

“and interest 121.89
“Total, $2,196.89

The interest “$121.89” (in figures) is placed below the $2,075,and then those two sums are figured up and the word “total” placed before the $2,196.39. It would seem that the jury found the amount of the damages at the same time it added $121.39 for interest.

In Lawrence Railroad Co. v. Cobb, 35 Ohio St., 94, the fourth proposition of the syllabus is as follows:

“4. In awarding damages for an injury resulting from a tort, compensation in the nature of interest may be included.”

The judge in delivering the opinion, says, upon that proposition: “Nor was there error in the charge of the court in respect to the amount of damages. The rule of damages in such case is compensation for the injury, or, in other words, that the injured party should be made whole. And while it is true that such a claim is not one, which under the.statute, bears interest, nevertheless, if reparation for the injury is delayed for a long time by the wrongdoer, the injured party cannot be made whole unless the damages awarded include compensation, in the nature of interest, for withholding the reparation which ought to have been promptly made.”

This question in Lawrence Railroad Co. v. Cobb, supra, was raised upon the charge of the court to the jury, and it did not appear in the verdict itself as plainly as in this case, that interest was in fact included; but the substantial statement of the jury in this verdict is that the total amount of the damages is $2,196.39, and it appears that in arriving at that they figured as interest $121.39; but we think under this authority that this was not improper; that they might lawfully do that, and therefore there was no error in the action of the court in rendering judgment on such verdict.

We come now to the other question presented: whether this evidence is sufficient to sustain the verdict against both Joel H. Norton and T. H. Meinhart. .

It will not be profitable,perhaps, for one to go ever, in detail, the points in the testimony — L have not time for that; but it is sufficient to say that we have read the testimony and. considered it carefully, with regard to Mr. Norton and with regard to Mr. Meinhart, separately — because it is claimed that whatever may be the force cf the testimony against Meinhart, it would not sustain the verdict as against Mr. Norton In considering the testimony, we think the evidence tended tc show at least that the charges in the petition against Meinhart were true. Of co-urse, there was evidence given both ways; but he admits squarely that he made substantially the representations which were charged to have been made, but he says, on the other hand, that they were true. There is direct-testimony to the effect that they were true for the most part; but there is also testimony strongly tending to show that in a substantial degree they were not true, and, the jury having passed upon them, we do not think we are warranted in interfering with the verdict as to him.

The testimony regarding Mr. Norton might be considered in two aspects: The only aspect as to which we should consider it is, as to whether it substantiates the charge of the petition — that Norton aided and abetted Meinhart in the original fraud charged against him and which resulted in the injury to Mrs. Parker.

There is other evidence given in regard to . dealings with the mortgage which Mrs. Parker made over as a part of the purchase price, bearing upon the question as to whether or not Mr. Meinhart, or Mr. Norton, owns that mortgage, or whether Mr.Meinhart has any interest in it; but, as we look upon the case, as it is presented in this record for our consideration, we are simply to determine whether Mr. Norton was the aider and abettor and joined in the original fraud upon Mrs. Parker whereby he rendered himself liable to a persona] judgment for the amount of her damages. We find the evidence barren of proof that would fairly sustain the verdict as against Mr. Norton, as to his joining in the original fraud and deception by which Mrs. Parker was led inte this arrangement, and we think the judgment against Norton is not sustained by the evidence.

As regards the other questions — whether the evidence tended to show that Mr. Meinhart really had an interest in this, mortgage at the time it was sold, and that the money attached was really and properly attachable as the money cf Mr. Meinhart in this action — we think the record does net present that question to us cr call upon us for any decision or intimation of any opinion in regard to it.

Under the authority cf certain holdings of the supreme court — one cf which is in Rengler et ux. v. Lilly, 26 Ohio St., 43, we are authorized in an action of this character, to reverse the judgment as to one of the defendants and affirm it as to the ether.

The judgment is therefore affirmed as to Mr.' Meinhart; but, as to Mr. Norton, the judgment is reversed, and as to him, the verdict will be set aside and the cause will be remanded to the court of common pleas for new trial and for further proceedings according to law.