text:
    QUALIFICATION STATEMENT FOLLOWING SIGNATURE ON NOTE.
    Circuit Court of Cuyahoga County.
    H. H. Wylie v. The Kingsley Paper Company.
    Decided, November 5, 1902.

      Bills and Notes — Promise of Agent, a Personal Obligation.

    Where one signs a promissory note and after his signature adds the statement that he is signing it for another, he nevertheless becomes personally liable upon it.

      O. J. Campbell, for plaintiff in error.

      Carpenter, Young <& Stocker, contra.
    Marvin, J.; Caldwell, J,, and Hale, J., concur.
   The Kingsley Paper Company sued II. H. Wylie before a justice of the peace, upon two promissory notes. One of said notes reads as follows:

“$50.00. November 26, 1898.
“Two months after date I promise to pay to The German-American Ptg. Co. or order fifty dollars, value received, at their office.
“IT. H. Wylie,
for the Critic Pub. and Prtg. Co.
“No.-. Due Jan. 26.”
The other note reads as follows:
“$50.00. November 18, 1898.
“Sixty days after date I, we or either of us promise to pay to the order of The German-American Prtg. Company fifty dollars at their office. Value received.
“H. TI. Wylie,
for the Critic Pub. & Prtg. Co.
“No.-. Due Jan. 17.”

The only defense made to these notes was that upon their face they show that Wylie was not the maker of the notes and could not be held personally liable thereon; that each Of the notes was a note of the Critic Publishing & Printing Company. The court held otherwise, and judgment was given the plaintiff. This judgment was affirmed by the court of common pleas. It is sought here to reverse the judgment. We hold that the judgment was right, and must be affirmed.

The cases holding that commercial paper signed by one as agent, and as agent of particular persons, is the personal obligation of him who signed the paper are decidedly in point.

It is urged that it can not be claimed that the words following the signature of Wylie on these notes are simply a description of the person; but we think that the notes in this case are clearly written promises on the part of Wylie .for the payment of the money. It is true he says that he promises to pay for this publishing and printing company, but it is clearly he who promises to pay. Suppose these notes read “I, H. H. Wylie, promise to pay for the Critic Publishing and Printing Company.” Could there be any doubt that it would be the promise of Wylie, which he is bound to make good? We think not. And we think the language used in the notes sued upon is equally clear that Wylie promised to pay for the company.


source: Caselaw Access Project

author: Gorman, J.

license: Public Domain

text:
    PROSECUTION FOR. MURDER IN THE SECOND DEGREE.
    Court of Appeals for Hamilton County.
    Leonard Goings v. State of Ohio.
    Decided, December 13, 1915.

      Criminal Law — Errors in Charge to Jury in Second Degree Murder Trial — Instruction as to Threats Where no Evidence of Threats Had Been Offered — Plea of Not Guilty Does Not Admit of a Charge on the Subject of Self-Defense — Misconduct by the Prosecuting Attorney.

    1. In a prosecution for murder in the second degree an instruction to the jury, to the effect that threats made by the deceased against the ' defendant would not justify defendant in killing the deceased, constitute prejudicial error where there is no evidence that any threats were made.
    2. A plea of self-defense admits the killing by the defendant but seeks to avoid the legal consequences by pleading and showing justification; and where a defendant does not admit the killing, but stands on his plea of not guilty and challenges the state to prove beyond a reasonable doubt that the killing,was committed by him, an instruction to the effect that there was some evidence that the killing was by the defendant, but he claimed he was justified under the doctrine of self-defense, is highly prejudicial since it leaves the jury no option but to find that the killing was the act of the defendant, their task being only to determine whether it was in self-defense, which shifts the burden of proof and compels the defendant to prove his innocence by a preponderance of the evidence.
    3. Where the circumstances seem to indicate that the crime was committed by either the prosecuting witness or the accused, the use by the prosecuting attorney of language in his argument to the jury which leaves in their minds the impression that the prosecuting witness had been tried and acquitted of the crime and had no motive to testify otherwise than the truth, leaving them to conclude that the defendant must be the guilty, one, is misconduct of a prejudicial character.

      Ed. F. Alexander and Jas. B. O’Donnell, for plaintiff in error.

      John V. Campbell, Prosecuting Attorney, and Waller M. Locke, Assistant Prosecuting Attorney, contra,
   Gorman, J.

The plaintiff in error on July 20th, 1915, was indicted £or murder in the second degree by the grand jury of Hamilton county, charged with “unlawfully, purposely and maliciously” killing one James Garner by shooting him with a pistol on May 4, 1914, at 554 George street, in the city of Cincinnati. On July 24, 1915, after trial, he was by a jury found guilty of manslaughter, and on July 26, 1915, was sentenced to the Ohio penitentiary. He has prosecuted error to this court and asks for a reversal of the judgment.

Briefly, the salient facts adduced at the trial, as shown by the record, are as follows: For about three years prior to May 4, 1914, Leonard Goings cohabited with one Violet Anderson, alias Gertrude Thomas, an open and notorious prostitute, in several parts of Cincinnati, and elsewhere. He had left her and gone to Indianapolis about a month or two prior to May 4, 1914, and while he was there she took up her abode in the tenderloin district of Cincinnati at 554 George street. Both Goings and the Anderson woman are colored.

On May 4, 1914, Goings returned to Cincinnati from Indianapolis, and on the same day the Anderson woman heard of his return and sent one of her friends to request Goings to visit her at her room on the second floor of the building No. 554 George street. He went to her room about four o ’clock in the afternoon of that day, with Violet’s messenger, and after a few minutes the messenger departed, leaving the Anderson woman and Goings alone in the room. These two are the only witnesses as to what occurred with reference to the killing of Garner.

Shortly after Goings arrived at the Anderson woman’s room Garner, a large, strong young colored man, appeared at the house and asked two of'the inmates on the first floor front of the house how he could get upstairs. He was directed to go to the rear of the house, which faced south on the north side of George street, and he would find the stairway. He walked back perhaps twenty or thirty feet, entered a side door and mounted the stairs which lead to a hallway running north and south on the second floor. He walked' south through this hallway, which was dark and unlighted, to the door of the Anderson woman. He knocked, and she came to the door, opened it, and asked Garner what he wanted. He asked if she did not know him. She said she did not, and ordered him away. Pie began to curse her and call her vile names and said something about his money. He went downstairs and into the side yard, where he continued to curse the Anderson woman, and she from the window talked back to him. She told him he had better stay down there, but if he must come up, then to come up. This is her statement before the coroner, but on the trial she says Goings told Garner that “if he must come up, to come up.” Goings denies having spoken to Garner while in the yard. Garner came up into the hall, and while there was shot by either Goings or the Anderson woman. She admits having thrown two drinking glasses out into the hall at Garner. On the trial she testified that while she was at the door of her room trying to drive Garner away and throwing the glasses at him, Goings passed by her into the hall, saying, “Let me get down to him,” and that when Goings got out into the hall.she heard something like a slap, followed by a shot. Goings came back into the room and she says she asked him who shot, and he said “I did.” She asked if he had shot him (Garner), and Goings said “No.” She says she saw Garner come around the house and lean up against the wall, and she then said to Goings “Yes you did.” He said, “Did I? What must I do?” and she told him to go to his home in Virginia. She says he told her he would throw the pistol into the vault in the back yard. She did not see Goings have a revolver nor did she see him shoot Garner. Garner died without making any statement.

Goings entered a plea of. ‘ Not guilty, ’ ’ and on the witness stand in his own behalf denied that he shot Garner, denied that he had or owned a revolver, and denied most of the Anderson woman’s statements. He testified that she shot Garner from her door in the hall while he, Goings, was out in the hall trying to get Garner to go away; that she was very close to Garner when she shot him, and that Garner had struck him, Goings, with a dinner pail and knocked him down, and while he was down, she shot Garner; that she told him, Goings, to go away home so that he could not testify against her.

Goings went away that evening to Virginia, and was not arrested .until more than a year afterwards at. Dayton, Ohio. After the shooting, the deceased was taken to the city hospital, where he died that night. The police officers that evening searched the vault and fished up a thirty-two caliber revolver with one empty shell and two unexploded cartridges. Goings testified that the revolver belonged to the Anderson woman and was the one with which she shot Garner; that he had often seen it in her bureau drawer. Two other witnesses testified that she told them she had a revolver and would shoot. She was arrested after the shooting, and when questioned by the officers said a man named “Walter” did it. After being confined for quite a while and, as she said, cross-examined by the police and put through either the second or third degree, she said Goings did it.

There appears to be a direct conflict between her testimony and that of Goings, the only two who know what person fired the shot that killed Garner. The circumstances and probabilities appear to us to point as strongly to Violet Anderson as to Goings, as the slayer of Garner. Indeed, we think the probabilities, are stronger in favor of the theory that the woman, rather than the man, fired the shot. Each, it is true, was equally interested in throwing the blame on the other; both were persons of Lad repute, and each had strong motives for testifying against the other as they did, but a careful consideration. of the evidence and circumstances will lead a reasonable person to the conclusion that the state failed to establish the guilt of Goings beyond a reasonable doubt. Assuming that Violet Anderson was entitled to equal credibility with Goings, nevertheless the attendr ing circumstances, if carefully weighed and considered by twelve unbiased and disinterested men, were such that there must have existed in the minds of such a jury a reasonable doubt of Goings’ guilt, and if that reasonable doubt had been resolved in his favor the verdict should have been “not guilty.”

There are' several errors claimed, by counsel for Goings, to have been committed by the court in the charge. In speaking of that provocation which would warrant the jury in finding the accused guilty of manslaughter rather than murder in the second degree, the court said:

“The provocation to have the effect of alleviating the killing from second degree murder down into manslaughter must have consisted in this case of personal violence done, or attempted to be done by James Garner, nor can the threats which were alleged to have been made by Garner against the defendant be considered as reasonable provocation to reduce the killing from second degree to manslaughter. ’ ’

This portion of the charge assumes, as we read it, that threats were alleged to have been made against Goings by Garner, and assumes that Goings would not be justified in killing Garner on that account, whereas there is no evidence of Garner having threatened Goings. In this part of the charge we think the court erred to the prejudice of the accused.

In several places in the charge the court assumed that Goings did the shooting; whereas Goings strenuously denied that he did, and there was no witness who testified that he did shoot the deceased. Violet Anderson only testified that Goings told her he shot, but did not hit Garner.

The trial court further charged the jury on the plea of self-defense, and while that part of the charge relating to self-defense appears to' state correctly the rule of law applicable to self-defense, there was no claim or plea of self-defense made by Goings, nor was there any evidence, to our minds, tending to show a ease of self-defense. The plea of self-defense in murder eases admits the killing by the defendant, but seeks to avoid the legal consequences by pleading and showing a justification. There can not properly be a ease of self-defense unless the accused admits the killing. This plea is in the nature of a confession and avoidance and, when interposed, the burden of establishing it by a preponderance of the evidence- is upon the accused.

In the ease under consideration Goings did not admit the killing, but on the contrary was standing upon his plea of not guilty, and challenging the-state to prove beyond a reasonable doubt that he fired the shot which killed Garner. Therefore, when the court charged the jury, as he did, that there was some evidence tending to show that Goings shot Garner as a matter of self-defense, and then proceeded to charge the law of self-defense, it was in substance saying to the jury that Goings admitted the killing of Garner but claimed that he was justified under the doctrine of self-defense, which must be proved by Goings'by a preponderance of the evidence. This in effect took from the consideration of the jury the question of whether or not Goings killed Garner, and left no option to the jury but to find as a matter of fact that he did kill Garner. They were, under this charge, required only to find whether or not this killing of Garner was done in self-defense, and on this issue they were told that the burden of proof rested not on the state, but on the defense. Under the evidence it was impossible for the jury to find that Goings killed Garner in self-defense, and, there-. fore, assuming the killing of Garner to be admitted by Goings by this plea of self-defense, and Goings having adduced no evidence to establish self-defense, the jury were bound to bring in a verdict of either manslaughter or murder in the second degree. Thus, this part of the charge was highly prejudicial to the accused, Goings, as it practically put upon him, in the eyes of the jury the burden of proving his innocence by a preponderance of the evidence. •

In the argument to the jury the prosecuting attorney referred to the prosecuting witness, Yiolet Anderson, and commenting upon her and her testimony, said, among other things:

“Violet Anderson is free; she is clear of this trouble. * * *■ But, gentlemen, as their first counsel told you this morning, she is out breathing the free air — you can draw your own conclusion. as to what has happened to Yiolet Anderson. ’ ’

Counsel for defendant objected to this language, and asked the court to interpose, but the court overruled the objection. The language, we think, was calculated to leave the impression on the jury’s minds that the prosecuting witness, Yiolet Anderson, had been tried and acquitted of the crime for which Goings was undergoing trial, and that she therefore had no motive in testifying to anything but the truth, whereas there was no evideuce tending to show that Violet Audersou had beeu tried or acquitted or that she was not under indictment charged with this crime or complicity in its commission. The jury seeking a victim might well have concluded that if the Anderson woman had been acquitted then Goings must be guilty, inasmuch as the killing of Garner was by either Goings or the woman. If she did not kill Garner, then of necessity Goings did kill him. We think this was prejudicial misconduct on the part of the prosecutor.

There are other errors in the record, but those pointed out-are sufficient to require us to reverse the judgment, which is accordingly done.

Jones (E. H.), P. J., and Jones (Oliver B.), J., concur.


author: Richards, J. Chittenden, J., Kinkade, J.

text:
    JUVENILE COURT WITHOUT JURISDICTION OVER. CHILDREN OF PARENTS INVOLVED IN DIVORCE PROCEEDINGS.
    Court of Appeals for Sandusky County.
    Cleveland Protestant Orphan Asylum et al v. Hazel Taylor Soule.
    Decided, October 15, 1915.

      Jurisdiction — Juvenile Court Act — Does Not Deprive Common Pleas' Court of Jurisdiction Over Children of Parents Involved in Divorce Proceedings — Continuing Jurisdiction of the Common Pleas Court.

    1. Sections 1647, 1648 and 8031, General Code, conferring on juvenile courts authority to determine cases involving delinquent, neglected and dependent children, do not supersede Section 11987, General Code, empowering common pleas courts to make orders for the disposition, care and maintenance of children of parents involved in divorce proceedings.
    2. A court of common pleas, having made an order concerning the disposition of a minor child of parents involved in divorce proceedings, has continuing jurisdiction of such child, precluding a juvenile court from taking independent jurisdiction thereof. If the best interests of the child demand a change of custody the proper procedure is by application to the common pleas court to modify its former order. Í "
    3. The principle, that the court first obtaining jurisdiction of a subject-matter retains exclusive jurisdiction and authority until final disposition, applies to jurisdiction of a dependent child, concerning which a common pleas court has made an order for the custody in divorce proceedings, and a juvenile court has no authority to make an order for the disposition of such child.

      W. J. Mead, for plaintiffs in error.

      Kinney, 0 ’Farrell Bimelspach and E. G. Sayles, contra.
   Richards, J.

This is a proceeding in habeas corpus brought in the court of common pleas to recover the custody of a child about eleven years of ago. The court of common pleas granted the writ and error is prosecuted to that judgment. The ease raises a very interesting question of jurisdiction as between the probate court and the common pleas court. No disputed matters of fact arise in the case. The important facts to be considered in determining the questions raised are simply, that in a divorce action pending between the father and mother of the child, the custody of the child had been awarded to the mother in the court of common pleas of this county on December 26, 1913. In pursuance of this decree of the common pleas court, the mother took and retained possession of the child. In May, 1914, proceedings were instituted in the probate court, acting as a juvenile court in this county, in which it was.charged that the child was a dependent child by reason of the fact that it had not proper parental care and that its home was, by reason of neglect and depravity on the part of its parents, an unfit place for the child. On the trial in the juvenile court that court found and adjudged that the child was a dependent of about the age of eleven years, and that she was a ward of the court, and the court ordered that her custody be committed to the Cleveland Protestant Orphan Asylum, and that she be there eared for and educated until the further order of the court.

The authority vested by statute in the court of common pleas in an action for divorce is contained in Section 11987, General Code, and empowers that court to make such order for the disposition, care and maintenance of the child, as is -just. The order which -was made in the court of common pleas antedates the order in the juvenile court and was made in direct conformity with the language of the statute. It is said, however, that the juvenile court law supersedes the order and decree made in the court of common pleas. The juvenile court proceeded under and by virtue of the authority contained in Sections 1647, 1648 and 8031, General Code. These sections confer ample authority upon the juvenile court to consider and determine cases involving questions of delinquent, neglected or dependent children. The later Section 8031, General Code, provides in substance, that, when a parent, through vagrancy, negligence or misconduct, is unable to support a minor child or neglects so to do, or habitually ill-treats such child, the probate court may issue a summons requiring the parent to appear and answer the complaint and if the court finds the complaint to be true and that it is for the best interests of the child to be taken from the parent, it may make an order to that effect and direct the placing of the child in a suitable orphan asylum or children’s home or with some other benevolent society. We do not, however, understand that these sections operate to supersede the authority conferred on courts of common pleas to make proper orders for the disposition, care and maintenance of the children of parents involved in a divorce action before that court. It has long been held 1hat the jurisdiction of the court of common pleas over the children of parents so involved is a continuing jurisdiction, and that the child becomes the ward of the court. This child was a ward of the court of common pleas prior to and at the time the proceedings were brought in the juvenile court. We think that the statutes conferring authority on any court in such matters must be read as limited to children not already provided for by some other court first having obtained jurisdiction. Hoffman v. Hoffman, 15 Ohio St., 427; Rogers v. Rogers, 51 Ohio St., 1.

A similar question has been before the Supreme Court on turn recent occasions, the first being In re Crist, 89 Ohio St., 33. In that case the probate court had appointed a guardian of the child after the decree awarding the custody of the child had been entered in the court of common pleas, and it was held that the child had become the ward of the court of common pleas and that the jurisdiction over its custody was a continuing jurisdiction and could not be affected by the subsequent appointment of a guardian in the probate court.

The question was again before the Supreme Court in the Children’s Home of Marion Co. v. Fetter, 90 Ohio St., 110. In that ease a delinquent child had become a ward of the juvenile court and had been committed to an institution under provisions of the General Code relating to that court. Thereafter proceedings in habeas corpus were brought by a parent of the child and it was held that the order of the juvenile court was effective and controlling and that the court assuming to tafee subsequent jurisdiction was without authority. This is but another enunciation of a principle of law that has been recognized from time immemorial, that the court first obtaining jurisdiction of the subject-matter retains exclusive jurisdiction and authority until final disposition, free from interference by any other tribunal. Of course, this principle has nothing to do with the question of convictions of minors for violations of any criminal statute. To hold differently ■ than in accordance with the rule above stated would permit a defeated litigant, seeking the custody of a minor child in the common pleas court, to go immediately to the juvenile court and there re-litigate the question just determined in the common pleas court. It would be doing violence to known rules of procedure to assume that the General Assembly intended by the passage of the juvenile law to confer authority on the juvenile court to re-litigate matters already determined in another court, particularly in view of the fact that the orders as to the custody of children are continuing orders.

We see no reason why the order in the court of common pleas granting the custody of the child to the mother could not be modified in that court if conditions had so changed as to render such modification proper.

We call attention of counsel to the language of the Supreme Court in the closing paragraph of the opinon in Bower v. Bower, 90 Ohio St., 172. In that case the Supreme Court sustained the appealability of an order of the common pleas court determining the care, custody and maintenance of minor children, and in so doing affirmed the judgment of the circuit court and lemanded the case to that court for such further orders from time to time, touching the custody and support of the children, as that court should deem just and proper.

We are entirely in accord with the eloquent tribute to the home as a place for rearing children, announced by Mr. Justice Brewer, found in In re Bullen, 28 Kan., 557. The only question, however, that is in this court is one as to the jurisdiction of the juvenile court under the circumstances disclosed in the record. The court of common pleas found that the order made in that court in the divorce case was unreversed and not modiiied and still in force, and that for this reason the juvenile court had no jurisdiction over the child as a dependent child. With that judgment we are in accord and the same will, therefore, be affirmed.

Chittenden, J.,

concurs.

Kinkade, J.

I concur in the judgment of affirmance but I think it might well be placed on an additional ground than that mentioned in the opinion of Judge Richards, to-wit, that it is manifest in the record that the child in question is no longer a dependent child, if she were such at the time of the entry of the judgment of the juvenile court.


author: I-Iouck, J.

text:
    VACATION OF A JOINT JUDGMENT AS TO ONE OF THE DEFENDANTS.
    Court of Appeals for Morrow County.
    B. M. Meredith et al v. The Butler Manufacturing Company.
    Decided, October 15, 1915.

      Practice — Death of One of Joint Defendants After Submission — Joint Judgment Entered Without Personal Representative Being Made a Party — Vacation of Judgment as to Decedent’s Estate Ground for Vacation as to the Remaining Defendants.

    The vacation of a joint judgment as to one of the joint judgment debtors vacates it as to all, where the subject-matter of the action is such that the plaintiff could not have prosecuted several actions; and a trial court in such a case, a prima facie case having been tendered, should grant a vacation as to all the defendants but . suspend the order pending a new trial on the- merits.

      Mitchell Bruce, for plaintiffs in error.

      J. M. Schooler and Harlan & Wood, contra.
   I-Iouck, J.

This is a proceeding in error prosecuted from the Common Pleas Court of Morrow County, Ohio.

. The plaintiffs in error have filed in this court a supplemental petition in error, alleging that since the trial of this cause in the common pleas court, and since the same was partly heard in this court, the plaintiffs in error, Sarah J. Huntington, as administratrix of the estate of R. N. McMahon, deceased, filed their petition in the Common Pleas Court of Morrow County, Ohio, asking for a vacation of and suspension of a judgment formerly made and entered by said court in said proceedings below, and for leave to file answer therein, for the reasons set forth, and upon the grounds stated therein.

The common pleas court refused to grant the relief prayed for, but entered a judgment affirming the former judgment of the court therein, save and except as to R. N. McMahon, and as to the judgment against him enjoined the plaintiff below from issuing an execution against or in any way attempting to collect said judgment, or any part thereof, from the estate of the said R. N. McMahon, deceased.

Plaintiffs in error claim that there is error in the record and proceedings in said common pleas court, in said supplemental proceedings, to their prejudice, in the following particulars, to-wit:

1. In refusing to vacate the judgment against all the plaintiffs in error, the defendants below.

2.. After vacating the judgment against McMahon, the court’s refusal to suspend the judgment against all of the defendants below, and set the cause down for trial.

3. The court’s refusal to permit the plaintiffs in error, the defendants below, to file an answer which contained two new and additional defenses.

4. The modification of the original judgment without a trial.

Upon these grounds the plaintiffs in error seek a reversal of the judgment below.

The original action out of which this proceeding arises was commenced in the Common Pleas Court of Morrow County, Ohio, in December, 1909, by the defendant in error, the Butler Manufacturing Company against the plaintiffs'in error, A. E. Bell, R. N. McMahon, since deceased, and others.

The issue was duly made, jury waived, and the cause was tried to the court, and judgment rendered against the defendants below for $2,650, with interest. A motion for a new trial was filed, heard and overruled, and error was prosecuted to this court, the petition in error alleging that after said cause was tried and submitted, R. N. McMahon, one of the defendants in said suit, died on or about the 4th day of November, 1912, and before judgment ivas entered; that no suggestion of the death of said R. N. McMahon was made in said court, and no personal or legal representative of said decedent was made a party to said action, but said case was tried and a joint judgment rendered against said R. N. McMahon and the other defendants in said cause, after the death of said McMahon, and without his legal or personal representative being made a party defendant therein.

The petition in error came on for hearing in this court at the June term, 1913, and the above alleged error not appearing in the record, this court was without jurisdiction to hear and determine the same, and the cause was continued to give plaintiffs in error an opportunity to proceed under the provisions of Section 11631 of the General Code, or other similar provisions, to obtain their remedy.

This case is an important one, relating to questions of practice that are of vital importance to the bench and bar.

From an examination of the record we find that the original suit upon which this proceeding is based was founded upon a joint contract, and the judgment rendered therein in the trial below was a joint judgment, and therefore the only question presented to this court for determination is': Does the vacating of a joint judgment against one defendant and joint judgment debtor vacate it as to all?

Section 21631 of the General Code, provides:

"The common pleas court, or the circuit court, may vacate or modify its own judgment or order, after the term at which it was made: * * *
" (6) For the death of one of the parties before judgment in the action.”

Under this section, and Sections 11636 and 11637 of the General Code, the successive steps required to vacate a judgment after term are as follows:

"1. An application filed in the original case, stating the ground of vacation and the defense, upon which summons shall issue, and no further pleading is required.
"2. Hearing on the application.
"3. 'If ground for vacation is found to exist, and a valid defense is averred in the application, the judgment shall be vacated, but the lien of the original judgment saved by suspending the order of vacation pending trial on the merits.
"4. A pleading setting up a defense, and a trial upon the issues made, as if no judgment had been rendered.
“5. The rendering of a judgment which shall either restore the old judgment or extinguish it, as the facts found on the trial demand.”

In determining whether there is error in this record it is proper to inquire as to whether or not the plaintiff in the- original action below could have maintained a separate action on the con-. tract against each of the obligors, had they elected so to do, or was their sole remedy on .the contract against them jointly ?

There can be little doubt that the cases wherein it is proper to render a several judgment against one or more of the defendants in the suit, thereby leaving the cause to proceed against the others, are limited, as a general rule, to certain actions. The difficult}', however, is in determining whether these eases wherein such judgment is forbidden includes actions on joint and several contracts, on which the plaintiff might have elected to prosecute several actions. Some courts have held that they are confined to actions on joint contracts, when the plaintiff had no election as to the joinder of defendants, and therefore was compelled to bring a joint suit, and that his only remedy was such; others have held the contrary to be the rule.

We think that Section 11584 of the General Code will materially aid us in the proper determination of the question before us. The section provides:

“In an action against several defendants the court may render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper. ’ ’

A fair construction of this statute, with the facts presented in this case, and applying thereto what seems to us to be the rule of law applicable to the same, should aid us in reaching a proper conclusion. A court in its discretion may render a judgment against one or more of the defendants, leaving the action to proceed against others, whenever it appears that the plaintiff might have demanded a several judgment on the contract if he had elected to sue the defendants separately. On the other hand, if the subject-matter of the action is such that the plaintiff could not have prosecuted several actions, then and in that event his only remedy would be to demand a joint judgment, in a joint action, and in such case he can not have a several judgment against any of the defendants until the liability of each and all of the defendants has been determined upon final trial of all the issues in the case.

In the case at bar the vacating of the judgment against one of the plaintiffs in error,- the defendants below, thereby vacated it as to all. This being so, and ground for vacation having been found to exist, and a prima facie defense having been tendered by the plaintiffs in error, the defendants below, the judgment as to all of them should have been vacated, and the order of vacation suspended pending a trial on the merits.

The judgment is reversed, and cause remanded to common pleas court for a new trial.

Shields, J., and Ferneding, J. (sitting in place of Powell, J.), concur.


author: Spence, J.

text:
    ACTION FOR. RECOVERY OF SECRET PROFITS FROM A PROMOTER.
    Court of Appeals for Ashland County.
    The Marblehead Bank Company v. S. A. Raridon.

    Decided, October Term, 1915.

      Corporations — Secret Profits Enjoyed by a Promoter — Extent of the Recovery which May be Had by the Corporation — Promoter Stands in a Fiduciary Relation — Application of the Statute of Limitations.

    1. In an action by a corporation to recover the secret profits of its promoter, the recovery is limited to the profits actually made by him in dealing with the corporations or in transactions for the corporation.
    2. In an action by a corporation to recover secret profits from its promoter, the promoter stands in a fiduciary relation to the corporation, and the action is one for a breach of duty, not for fraud, and does not come within the saving clause of the statute of limitations as an action for relief on the ground of fraud.

      Mykrants & Patterson, for plaintiff in error.

      G. PL. Workman, contra.

       Affirming Marblehead Bank Co. v. Raridon, 17 N.P.(N.S.), 27.

   Spence, J.

(sitting in place of Houck, J.).

It is difficult to tell what theory of the case was in the mind of the pleader when the petition was drawn, but stripped of much of its useless verbiage it seems to set forth the circumstances leading up to the incorporation of the Marblehead Bank Company, and certain transactions which took place after the incorporation of the company.

The amended petition avers that the defendant, S. A. Raridon, was the promotor of the bank company and had as his associate one W. C. Pollock; that they induced certain persons to become stockholders in the bank, representing to them that it would do a prosperous business in the village of Marblehead; that the banking company was incorporated under the laws of the state of Ohio on the 14th day of March, 1907, and that on the 11th day of May, 1907, the defendant, Raridon, Lonis St. Marie and others were elected directors, and that the stockholders or directors elected a cashier for said bank. Then the amended petition contains this averment:

“And that afterwards on May 11th, 1907, the stockholders who had subscribed for stock in said company, met and organized the same by electing directors and that said defendant was present at said meeting and falsely and fraudulently represented to the stockholders and directors of plaintiff that he had purchased for the company bank fixtures including four chairs, one directors’ table, one side desk, one double desk, one single desk and table, check shelves, electric fixtures, vault doors and safe, and that said fixtures were of the value of $2,982.32; that all of the stockholders and directors- of said company, aside from the defendant and the said Pollock, relied upon the representations of the defendant, in the entire organization, promotion and management of the bank at its inception.”

- The amended petition further avers the defendant while in charge and control of said bank caused certain certificates of stock of the cash value of $1,000 to be issued to himself and W. C. Pollock, and that they afterwards sold and transferred said stock to other parties, and that while defendant was in charge and control of the bank he made out a “deposit slip,” and caused the cashier of the bank to give him credit on a checking account for $1,988.32, which money Avas later checked out of the bank by defendant, and further avers that it had no knowledge of the fact that defendant had taken a credit deposit subject to checking of $1,988.32 for expenses, furniture and fixtures until the year 1910, and had no knoAAdedge as to Avhat amount had been paid by defendant for furniture and fixtures or the real value of the same as furnished by defendant until the year 1910, and avers that the bank furniture and fixtures were not worth more than $1,000; that between May 10th, 1907, and July 16th, 1908, the defendant dreAv by check from the bank the amount of $1,988.32, at which date he closed his account with the bank and asks, a judgment for $1,988.32 and interest.

The petition does not aver any collusion between the defenddant Raridon and the other directors of the bank, but alleges that Raridon was in charge of the bank for some time after its organization. If these allegations are true then the directors of this bank were guilty of gross negligence.

To this petition the defendant filed a demurrer, first, because the petition does not state facts sufficient to constitute a cause of action against the defendant; and, second, that the cause of action is barred by the statute of limitations or the action was not brought within the time limited for the commencement of such action.

The court of- common pleas sustained the second ground of the demurrer and the case is here on error to the ruling of that court.

It was the evident purpose of the pleader to set forth a cause of action for the recovery of the difference between the actual cost or price paid by defendant for the furniture and fixtures furnished by him to the bank and the amount which he received from the bank for them.

The rule is well settled as stated in Vol. 1 of Clark & Marshall’s Private Corporations:

“That the relation of promoters to the proposed corporation when formed, is a .fiduciary relation, or a relation of trust and confidence, and for this reason it is well settled that they will not be permitted to take advantage of their position in order to make a secret profit out of their transactions on behalf of the proposed corporation or the corporators, or out of their dealings with the corporation or corporators. If they do so, they will not be allowed to retain their advantage or gain, but the transaction may be set aside in equity or they may be compelled to account or be held liable to respond in damages.”

In Yeiser v. United States Board & Paper Co., 107 Fed., 340, in the syllabus the court say:

“Promoters of a corporation who become stockholders therein assume a trust relation to the company and the other stockholders which binds them to act openly and in good faith in all matters connected- with its organization, .and the acquiring of the property necessary for the transaction of the business for which it is organized and they will not be permitted to make a secret profit on the sale of such property to the corporation.”

These principles of law are conceded by counsel for defendant in error, and the question is whether the averments of the petition make a case for recovery under these well established rules of law. The petition alleges that defendant represented to the stockholders and directors that he- had purchased the furniture, fixtures and equipment for the bank and that they “were of the value of $2,988.32.” That is not a statement or representation of a fact, but simply the expression of an opinion as to what they were worth. Waiving the form of allegation, the question is not what they were worth, but what is the difference between the amount paid for them by the defendant and the amount which he received from the company for them. The averment that the furniture, fixtures and equipment of the bank were worth only $1,000 is also the expression of an opinion as to value and does not fix the measure of recovery as the difference between that amount and the amount which the bank paid, $2,988.32, or $1,988.32.

In Woodbury v. Loudenslager, 58 N. J. Equity, 556; 43 Atlantic, 671, it is said:

“To go beyond restitution and decree the actual payment of a sum of money never received, by the defendant by way of profit or otherwise, is to impose a penalty of a sort and in a fashion unknown to courts of equity, aside from causes of active fraud. ’ ’

The rule is so well recognized that it would be idle to cite authorities to show that the amount which a corporation is entitled to receive from a promoter is the profits which he actually received in dealing with or for the corporation; in other words, his secret profit.

Speaking for myself alone, I do not think that the amended petition states facts sufficient to constitute a cause of action against the defendant and that the first ground of the demurrer should have been sustained by the common pleas court.

Counsel for plaintiff in error contend that this action is one for relief on the ground of fraud, and that the action was begun within four years after the discovery of the fraud. The amended petition avers that the bank company is a corporation incorporated under the laws of Ohio; that on May 11th, 1907, the stockholders organized by electing a board of directors and a cashier for said bank; that the defendant was present at said meeting and falsely and fraudulently represented to the stockholders and directors of plaintiff company that he had purchased for the company bank fixtures, enumerating them, and that “said fixtures were of the value of $2,988.32.” Then follows a statement in regard to the defendant depositing $1,600 and withdrawing the same. This seemed to be his private funds and we are unable to see how it is connected with this case, but following these statements is this allegation:

‘ ‘ Plaintiff further avers that it had no knowledge nor did any of its directors or stockholders, except the said defendant and the said Pollock, have any knowledge of the fraudulent trans action of the defendant or had any knowledge that the representations made by him were fraudulent and false until in the year 1910.”

If the petition sets forth a cause of action for relief on the ground of fraud, then the allegation that the fraud was not discovered until within four years of the time the action was begun, would be good as against a demurrer. In Zieverink v. Kemper, 50 Ohio St., 208, the court say (syllabus):

“When it appears from plaintiff’s petition on an action for relief on the ground of fraud that the cause of action accrued more than four years before the action was commenced, a general averment in the petition that the fraud was not discovered by plaintiff until a time within four years before the action was brought is sufficient to bring the case within the saving clause of the statute of limitations for such actions, without specifically setting out when the discovery was made, or how it was made or why it was not made sooner.”

We come now to the question as to whether this is an action for relief on the ground of fraud and comes within the saving clause of the statute which provides that the cause of action shall not accrue until the fraud is discovered. In Carpenter v. Canal Company, 35 Ohio St., 307, Okey, J., says:

“These sections (now Section 11224, General Code) extend to causes of an equitable as well as those of a legal nature.”

Waiving all questions as to the anomalous petition and assuming that it makes a cause of action for the recovery of the secret profits of a promoter, is such an action one for relief on the ground of fraud or is it one for breach of duty on the part of the promoter?

The petition alleges that the furniture, fixtures and equipment for the bank were sold by the defendant to the bank company on May 11th, 1907, and if there was any fraud practiced by the defendant it was at the time of the sale of the furniture to the bank, and the statute of limitations would begin to run against the bank from that date, unless there has been a toll of the statute by undiscovered fraud.

In Clark and Marshall’s Private Corporations, Volume 1, page 325, it is said:

“To render the promoter of a corporation thus liable to account for secret profits made by him in the transactions on behalf of the corporation, it is not necessary to show that there was a fraudulent intent on his part. It is enough if the profits were made secretly, and without the consent of the corporators. ’ ’

In Pietsch v. Milbrath (Wisconsin), 101 N. W., 388, second syllabus:

“The right of action against the promoters of a corporation to recover illegal profits made by them in buying for the corporation, at a price far in excess of its actual price, land on which they had obtained a secret option is one at law which is barred in six years from its accrual under Revised Statutes, 1898, Section 4222, and is not cognizable solely by a court of equity, within the exception of subdivision 7, which postpones the running of limitations until discovery of the right of action.”

Thompson on Corporations, 2d Ed., Section 105, page 117:

“The liability of promoters for secret profits made by them in transactions between them and the corporation is not based on the theory of fraudulent intent on their part, but grows out of their relation to the corporation and the duty which they owe such corporation and the persons with whom they are dealing. They are clearly liable, even in the absence of fraud, on a mere failure to make full disclosures of their position and purpose. Their liability is fixed and the right to recover established when it is made to appear that such secret profits were obtained by them without the knowledge or consent of the corporation or its members. It is not so much the purpose of equity to visit, him with a penalty for concealment as it is to require him to account for the profits actually made by reason of such concealment.”

We have examined many other cases which bear more or less directly upon the questions here involved, but we think the cases cited are sufficient to illustrate the law as we understand its application in such cases as the one at bar. Our attention has not been called to any decisions to the contrary in this class of cases, and we have not been able to find any. We think on principle that these decisions are right. When cases are clearly within the provisions of the statutes limiting the time within which actions shall be brought, we have no power to refuse their enforcement, though they may work an occasional hardship.

The judgment of the court of common pleas will be affirmed.

Shields, J., and Powell, J., concur.


author: Per Curiam

text:
    CLAIM OF TITLE THROUGH INNOCENT PURCHASE.
    Court of Appeals for Hamilton County.
    Phila Hay v. Fredericks Leiser.

    Decided, January, 1915.

      Indefinite Description — Does Not Bar a Claim of Title — Where the Public Records Afford Notice of Plaintiff’s Rights.

    A claim of title as an innocent purchaser of property at a public sale can not be based on the indefinite description contained in the deeds through which plaintiff asserts his claim, where the public records, plats and indexes pertaining to the parcel in controversy were sufficient to serve as notice of the rights of the plaintiff therein.

      C. B. Matthews and Harry T. Klein, for plaintiff.

      .August H. Bode, Jr., and Mitchell Wilby, contra.

      Affirmed by the Supreme Court without opinion, November 9, 1915.

   Per Curiam

(Jones [E. IT.], Swing and Jones [Oliver B.], JJ.)

The claim of the defendant in this case is that she bought the property in question at a public sale, and that by reason of indefinite description in the deeds through which plaintiff claimed title she, the defendant, was an innocent purchaser of the property. The plaintiff, on the other hand, claims title and asks to have her title quieted.

We have carefully examined the evidence and considered the able briefs and arguments of .counsel, and conclude that the. public records, plats and indexes pertaining to the lot in question were sufficient to serve as notice to Mrs. Leiser of the rights of plaintiff in the lot in controversy. While the original deed for this lot to the trustees of the church did not definitely locate it, the fact that its boundaries were, fixed, probably during the lifetime of John Brooks and certainly during the lifetime of Daniel Brooks, his son, and the church built thereon and occupied as such, and the entire lot fenced, fixed definitely the lines of the lot, which, have been ascertainable ever since. Possession thereof is shown by plaintiff and her predecessors in title to such an extent that while the deed to Mrs. Leiser was of the entire tract, including this lot, still, as stated above, there was no reason why the defendant purchaser at the sale should have been misled. We think, moreover, that it is shown by a preponderance of the evidence'that at the time of the auction sale it was announced that the sale was made subject to the reservation of the church lót. A decree will therefore be entered granting the prayer of plaintiff’s petition.


author: Houck, J.

text:
    AS TO THE VALIDITY OF A CHANGE OF BENEFICIARY.
    Court of Appeals for Licking County.
    Mutual Benefit Department of Order of Railway Conductors of America v. Mary I. Bland and Ella J. Bland.
    Decided, March Term, 1915.

      Mutual Benefit Societies — Change of Beneficiary — Capacity of Insured to Make a Change — Claim of Undue Influence — Legal Right of Beneficiary to Make a Change.

    1. The fact that insured, when fatally ill with tuberculosis, left his wife and went to live with his mother, and refused longer to support his wife and in some ways showed ill-will toward her, and caused his mother to be made the beneficiary instead of his wife in his certificate of life insurance, does not establish unsoundness of mind or memory on his part or the exercise of undue influence over him.
    2. In making a change of beneficiary the insured exercised a right granted him under the rules of the order, as well as under the established rule of law that where the change is made substantially as provided for in the laws of the order or association, and to its full satisfaction and that of the insured, it is a valid change.
    3. Where it appears that the beneficiary whose name has been dropped from a certificate paid certain of the assessments out of her own money, a court in ordering distribution of the proceeds of the certificate will direct that the amount so paid be restored to the one paying it.

      Kibler & Kibler, for Edward M. Barrett, administrator.

      Flory ■<& Flory, for Ella J. Bland.
   Houck, J.

The facts in this case are that David E. Bland and Mary I. Bland were husband and wife, being married on November 28th, 1900. He was a railroad conductor and had been in the employ of the B. & O. R. R. Company, as such, for a number of years prior to his death, which occurred on the 2d day of December, 1911.

On the 14th day of November, 1904, he took out a benefit certificate for $2,000, in the Mutual Benefit Department of Order of Railroad Conductors of America, whose principal office is located in Cedar Rapids, Iowa, naming as his beneficiary therein his wife, Mary I. Bland. It is alleged that prior to his death Mary I. Bland paid a number of the assessments thereon from her own money; that Ella Bland, the mother of the said David E. Bland, paid a number of the assessments to keep said insurance in force; that said benefit certificate remained in their home, and in their joint custody, until about one year before the husband’s death; that on the 29th day of October, 1911, the said husband left their home in the city of Newark, Ohio, and went to the home of his mother, Ella J. Bland, where he remained until his death; that on the 4th day of November, 1911, the said David E. Bland, in writing, requested the said Mutual Benefit Department of Order of Railway Conductors of America to change the beneficiary in said benefit certificate from his wife to his mother, Ella J. Bland; that on the 8th day of November, 1911, he sent said certificate to said Order of Railway Conductors, and on the 10th day of November, 1911, it erased therefrom the name of Mary I. Bland, and inserted therein the name of Ella J. Bland, the mother of said David E. Bland, and returned said certificate to him, and the same was in his possession at the time of his death; that said wife did not consent to said change, and had no knowledge of same, until some time after the change was made; that David E. Bland was never married prior to his marriage with Mary I. Bland, who survived him as his widow; that Mary I. Bland was a widow when she married David E. Bland, and had one son at the time of said marriage with David E. Bland, and that the son at that time was about nine years old.

After the death of David E. Bland claims for the payment of the $2,000, the amount of said benefit certificate, were made to the said Order of Railway Conductors, by both the wife and mother of decedent, each demanding payment, and claiming to be legally entitled to same. The said Order of Railway Conductors, being in doubt as to whom payment should be made, filed an interpleader, in the common pleas court of this county and paid the money, $2,000, into court, where the same now. is in the possession of the clerk thereof.

This case is here for determination, on the second amended answer and cross-petition of Mary I. Bland, and the answer of Ella J. Bland thereto, and the evidence.

The said Mary I. Bland in her second amended answer and cross-petition, in addition to the above facts, alleges:

“That the said David E. Bland and Mary I. Bland were married on the ,28th day of November, 1900, and lived together as husband and wife until the 29th day of October, 1911, at which time David E. Bland was mortally ill with tuberculosis, was weak in mind and body, and not sufficient mental capacity to transact ordinary business, was so weak in mind as to be unable to resist the influence and importunities of those around him, and that on the 10th day of November, 1911, Ella J. Bland and one 'Clifford T. Bland, a brother of said David E. Bland, wickedly contriving and conspiring to poison and alienate the mind and affections of said David E. Bland, for his wife Mary I. Bland, and for the sole purpose of preventing her from receiving any property or estate of the said David E. Bland, who was about to die, the said David E. Bland and Mary I. Bland, having no children, and for the purpose of obtaining for themselves the property and estate of the said David E. Bland, did poison his mind toward his wife and alienate the affection of said David E. Bland for the said Mary I. Bland, and by falsehood, deception and fraud caused the said David E. Bland to believe that this defendant was not faithful to and devoted to him, all.of which was false as the said Ella J. Bland and said Clifford T. Bland well knew; that by said acts aforesaid of the said Ella J. Bland, and Clifford T. Bland, the said David E. Bland did attempt to change the beneficiary in said $2,000 benefit certificate from Mary I. Bland, to Ella J. Bland, bnt that same was wholly void so far as David E. Bland was concerned, and the same was not the act, intention or purpose of said David E. Bland, and that by reason of said disease he was mentally incapable of doing same, and the same was the result of duress, coercion, deceit and fraud practiced upon him by the said Ella J. Bland and Clifford T. Bland, for the purpose aforesaid, and in fraud of the rights of Mary I. Bland; that said Ella J. and Clifford T. Bland by continual urging and solicitation actually overcame the will of the' said David E. Bland and substituted their own in place of his, he being too weak in mind and body to resist same, and thereby caused him to make said attempted change,in the beneficiary named in said certificate.
"By reason of the premises Mary I. Bland says that she is the real beneficiary-under said benefit certificate; that the same was never changed' and that she is entitled to recover the said sum of $2,000 and prays that said attempted assignment and transfer of said certificate to Ella J Bland, be held to be null and void, and that the court order said money paid, to her.’

, The answer of Ella J. Bland to the second amended answer and cross-petition of Mary I. Bland, is a general denial of all the material allegations therein; and she specifically alleges that David E. Bland was of sound mind and memory and that he was not influenced or coerced into changing the beneficiary in the benefit certificate held by him in the Order of Railway Conductors, and that she is the real beneficiary and prays that said sum of $2,000 be ordered paid to her.

After the trial and decree in this case in the court below, Mary I. Bland departed this life, and Edward M. Barrett' was appointed by the Probate Court of Licking County, Ohio, as the administrator of the estate of the said Mary I. Bland, and gave bond and is now qualified in the premises and this cause so far as Mary I. Bland’s interest is concerned, is being prosecuted in the name of said administrator.

As we view this case, three questions are presented for determination by the court, two of them being questions of fact and one of law.

The questions of fact are:

First: Was David E. Bland of sound mind and memory and qualified to transact ordinary business on the 10th day of November, 1911, being the date of the change in the benefit certificate?

Second: Was David E. Bland unduly influenced to make such changes in the benefit certificate?

The question of law is:

Could David E. Bland, without the consent of Mary I. Bland, the beneficiary, change same to his mother, Ella J. Bland?

Coming now to the questions of fact, will state that the record of the testimony below was long and many witnesses were examined; but we have gone over it with care and attention, and while there is some conflict in the testimony, yet on the whole it is clear and convincing.

It does seem strange that a husband who had lived with his wife in comparative happiness for ten years would, when about to pass into the great beyond, become estranged from her to such an extent that he did not want her to have or possess any of his property; that he left his home and went to and lived in the home of his mother; that his former love and desire for his wife, at least in some respects, turned to hatred and ill-will.

True, there were in their married life some little differences, but nothing of a serious nature. He refused to pay the house rent; he refused to furnish her food and shelter; he was mortally ill with tuberculosis, which caused his death; he was weak in body and may have been somewhat disturbed in mind; he lived in the home of his mother and his brother, Clifford T. Bland.

Can it be claimed from these facts and what occurred at the home of his brother, as detailed by the witnesses, that David E. Bland was of unsound mind and memory, or that he Avas unduly influenced? We think not. .

What is it to be of sound mind and memory and not unduly influenced, as understood and contemplated in law? If David' E. Bland at the time he made the transfer of said certificate understood the nature, extent and scope of the business he was about to and did transact, and possessed that degree of .mental strength that Avould enable him to transact ordinary business, then in law he would be' considered a person of sound mind and memory.

The law does not undertake to test, by any specific method, a person’s intelligence, nor does it attempt to define the exact duality of mind and memory one must possess to transact ordinary business. The rule does not require that high degree of capacity that a man’s memory must be just as perfect as it ever was, or that his physical strength what it'was, possibly, when in youth. David E. Bland may have been somewhat enfeebled in mind and body, but if he knew his surroundings and was able to and did grasp'the situation, and was able to and did transact ordinary business at or near the time of the transaction in controversy in a proper and business-like way and manner then he would be of sound mind and memory as the rule of law requires.

Undue influence is just what the language implies. Any influence or act brought to bear upon a person entering into a contract or in the performance of a business transaction, taking into consideration the nature of the transaction and all the circumstances of each particular case, precludes the exercise of free and deliberate judgment.

The proof, as to undue influence, must be of such a character as to show the act was not the act of the person himself, bat of some other person, and it must be clear and convincing.

If to the facts in this case, as established by the evidence, we apply the above well known principles of law, can it be properly claimed that Mary I. Bland has maintained and established her contention that David E. Bland was of unsound mind and memory and was unduly influenced at the time claimed by her ? We think not.

It is claimed, on behalf of Mary I. Bland, that David E. Bland could not change the beneficiary in the benefit certificate without her consenting to same, and that it was changed without her knowledge or consent and is therefore null and void.

In the determination of this case it may be stated that the various rules of law which are applicable to ordinary life insurance cases do not apply here, because the laws, rules and regulations of mutual benefit associations, from which this case at bar comes are governed differently and under different laws from ordinary life insurance companies.

On page 100 of the constitution, statutes, rules of order, and laws governing the mutual benefit department, Order of Railway Conductors of America, being Exhibit “D,” we find the following rule as to benefit certificates, their change, etc.:

"The applicant must designate in his application some person or persons wife, relative or legal representative, to whom benefits shall be paid in the event of his death, and the secretary shall enter such designated name or names upon the register of the department and also upon the certificate of membership. Any member desiring to make any change in the named beneficiaries may do so with the consent of the department by making request for such change on blanks provided for that purpose and returning the certificate for necessary correction, provided no benefits shall be made payable to any other than wife, relative or legal representative of the member.”

We find from the evidence that David E. Bland complied strictly and absolutely with the above requirements, and that the change of beneficiary in the benefit certificate in question was done strictly in accordance with the rules and regulations of Order of Railway Conductors.

While David E. Bland not only complied with the rules and regulations of the Order of Railway Conductors in making the change of beneficiary in his benefit certificate he not only exercised a right given him under the rules and regulations of said company, but exercised a right given under established rules of law which principle is well known in Ohio, and we need but cite one authority, being the case of Earley v. Earley, 3 C.C. (N.S.), 71, which ease was affirmed by the Supreme Court, O. S., page 562. The doctrine laid down in that case is certainly decisive of the question as to the right of the insured to change the beneficiary without the consent of the beneficiary. The second syllabus reads:

“While a change of beneficiaries in a mutual benefit society must be made in accordance with the laws of the society, yet when the change is made substantially as provided by the laws of the society to its satisfaction, and that of the insured, a new certificate being issued to the new beneficiary, and the old certificate canceled, although not delivered to the society, the first beneficiary can not object to the manner of change because the change is made without her knowledge and not in strict conformity to the law of the society providing for the change of beneficiaries. ’ ’

We, therefore, find the law and equities in this case in favor of the defendant, Ella J. Bland, and against the defendant, Mary I. Bland, and the administrator of her estate, Edward M. Barrett, but we find as alleged and claimed in the second amended answer and cross-petition of M,'ary I. Bland, that she in her lifetime paid some of the assessments on the insurance held in said Order of Railroad Conductors, and we believe that her estate should be reimbursed for such assessments so paid by her. The evidence is indefinite and uncertain as to the amount she paid, but we feel that the sum of $50 should be paid to the estate of said Mary I. Bland out of the fund now in the hands of the clerk of the common pleas court of this county in this case, and the court coming now to the distribution of said fund in the hands of said clerk of courts, hereby orders and directs said fund to be paid out and distributed by said clerk as follows:

First: To pay the costs of this case and taxes.

Second: To pay to Edward M. Barrett, as administrator of the estate of Mary I. Bland, the sum of $50.

Third: The rest and residue to be paid to Ella J. Bland.

Shields, J., and Powell, J., concur.


text:
    LIABILITY FOR RENT UNDER AN INVALID LEASE.
    Circuit Court of Cuyahoga County.
    Eliza H. Greene v. E. A. Kline et al.
    Decided, May 24, 1902.

      Landlord and Tenant — Lessee of Premises Under Invalid Lease Liable for Rent While Sub-Tenant Holds Possession.

      A lessee of premises under an invalid lease, who attempts to surrender possession, but who leaves a sub-tenant in possession of a portion of the premises, is liable for the rent during the time such subtenant remains in possession.

      F. C. McMillan and M. B. Dickey, for plaintiff; in error.

      L. J. Grossman, contra.
    Iíiale, J.; Caldwell, J., .and Marvin, J., concur.
   On the first day of May, 1896, the plaintiff! and defendant entered into an agreement in writing by the terms of which the plaintiff leased to the defendant a portion of building at No. 226 St. Clair street in the city of Cleveland for a term commencing May 1st, 1896, and ending December 31, 1899, at a yearly rental of $650, payable monthly. After stating the terms of the lease, the plaintiff alleges in her petition — •

“that on said May, 1896, the defendants and each of them went into possession and constantly retained possession thereof during the entire term of said lease and occupying the same likewise. The plaintiff avers that the defendants and each of them are indebted to her under said lease and for said premises for the rental thereof, for the months of May to December inclusive, for each of said months, being a total of $433.35.”

This agreement in writing was not acknowledged and witnessed as required to constitute it a valid lease for the term named.

The answer admits the making of the contract, but alleges that it was invalid as a lease for the term named, because not properly acknowledged as the statute requires. The defendant admits that he entered into and retained possession of said premises until the 30th day of April, 1899, and alleges that prior to the expiration of the third year he notified the plaintiff of his intention to vacate the premises at the end of that year, and that he did actually vacate said premises at said time. It is conceded that the rent was fully paid up to May 1st, 1899.

Issue is taken by the reply, upon these averments of the answer.

The case came on for trial before a court and jury; at the close of the testimony for the plaintiff, the court directed a verdict for the defendant on the ground that the lease was invalid to fix the duration of the term and that there had, in fact, been a surrender of the premises on the 30th of April, 1899, up to which date the rent was fully paid.

The first claim made in behalf of the plaintiff in error as a ground for reversal is, that this agreement in writing, although not acknowledged, became as valid as if acknowledged, for the reason that the defendant took possession of the premises thereunder. This claim can not be sustained. It is, as we understand, in direct conflict with the case of Baltimore & Ohio R. R. Co. v. West, 57 O. S., 161. Again, it is claimed that there was no surrender of the premises by the lessee on or prior to May 1st, 1899, and that by holding over into the fourth year -the lessee became bound for the rent for the full term named in the writing. All the evidence produced on the trial of the case, related to this issue.

It appears that prior to April 1st, 1899, the defendant gave notice to the plaintiff that on April 30th he. would surrender the premises to the plaintiff, and that the defendant did, in fact,, on that day leave the premises; but it appears that prior to that time the defendant had sub-let to one William Lichtig a portion of said premises. Lichtig continued in the occupation of that portion of' the premises leased to him, until some time in July or August, 1899. It is not disputed that a lessee who sub-lets a portion of the leased premises can not quit by surrendering possession of the part retained, so as to escape payment of rent for the whole. The duty rests upon the lessee to see that his tenant, as well as himself, vacates the premises. The defendant claims, however, that his sub-tenant, after M'ay 1st, became the tenant of the plaintiff, to whom, it is claimed, the entire premises were surrendered on the 30th of April.

It appears that in the rental of this building one William Williams acted as agent of the plaintiff.

On the-trial, Mr. Liehtig was called as witness by the plaintiff in error and testified, in part, that:

“In the month of November or December, Mr. Kline introduced me to this Williams. * * * Later on he took me to Mr. Williams’ office; Mr. Williams was not in, and we met him as we started to go down-stairs at the elevator. He said, ‘Mr. Williams, this is Mr. Liehtig; he is going to occupy the premises until April 30th; I have rented him a part of it, and he would like to make arrangements with you beyond that time; if he intends to stay he would like to make some arrangement with you regarding the place.’ Mr. Williams, I believe, had asked, ‘Is he occupying the whole of it?’ and Mr. Kline said, ‘No, onfy a part of it,’ and I believe the amount of rent that I was paying was also mentioned, and Mr. AVilliams says, ‘Well, he can keep it providing you pay the difference; or words to that effect; and Mr. Kline and he had some argument, and we left him there. I went away. About four or five days before April 30th, I again vrent to Williams’ office; wanted to see if I could not make some arrangement regarding this place, as I would rather have remained, on account of having the place there, and it would have been very inconvenient for me to move, but I didn’t see Williams. Again, a day or two before April 30th, I saw Mr. AAUlliams, and told him I would like to rent the place again, as my term of lease you might say, expired with E. A. Kline; that Mr. Kline told me that after April 30th, he had nothing to do with me, and Mr. Williams had remarked, ‘I don’t know; I have not got anything to do; I hold Mr. Kline responsible for that rent. ’ Upon that I went to work; I found that I could not find a place to move my things by the first of May, and I sent my check a day or two before May 1st — the same day that I met Williams I sent a check, and that check came back.”

It would seem then, from the statements of this witness that the plaintiff, by the agent Williams, at all times refused to accept •the surrender of the premises of Kline; that she never accepted Liehtig for her tenant. The duty rested upon the lessee, if he would escape the payment of the rent, to surrender the entire premises covered by the lease or the contract. By leaving his sub-tenant in possession of a portion of the premises, he failed in the performance of that duty. While the holding over under the circumstances disclosed by the record, was not such as to constitute a valid lease for the fourth year or to the expiration of the lease, it was not such as to relieve the defendant from the payment of rent while the premises were occupied by his subtenant.

We hold that under the facts disclosed in this record, the defendant should respond for the rental of the premises at the agreed price for the time the same were occupied by his subtenant. We are also of the opinion that the allegations of the petition above quoted were sufficient to allow such recovery in the present action, and that the court erred in directing a verdict for the defendant.

The judgment of the court of common pleas is, therefore, reversed.


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    AFTER. DISMISSAL BY THE PLAINTIFF NEW ACTION BARRED BY THE STATUTE.
    Circuit Court of Cuyahoga County.
    Laura J. White, Administratrix, v. The Cleveland Foundry Company.
    Decided, November 17, 1902.

      Statute of Limitations — Dismissal of Pending Action on Motion of Plaintiff is Not a Failure in the Action.

    Where an action which has been commenced in due time, is dismissed by the plaintiff after the time limited for the commencement of such action has expired, even though such dismissal was made to avoid being forced into a trial for which the plaintiff was unprepared, a new action for the same cause, thereafter commenced, is barred, though commenced within one year after the dismissal of the former action. Such dismissal is not a failure in the action within the purview of Section 4991, Revised Statutes.

      Eerruish, Chapman & Eerruish, for plaintiff in error.

      Gilbert Hills, contra.
    Hale, J.; Caldwell, J., and Marvin, J., concur.
   The trial court sustained the demurrer to an amended petition filed by the plaintiff, and entered judgment for the defendant. The cause of action stated in the amended petition was barred by the statute of limitations, unless the case made falls within the provision of Section 4991, Revised Statutes:

“If, in an action commenced, or attempted to be commenced, in due time a judgment for the plaintiff be reversed, or if the plaintiff fail otherwise than upon the merits, and the time limited for the commencement of such action has, at the date of such reversal or failure, expired, the plaintiff, or, if he die and the cause of action survive, his representatives, may commence a new action within one year after such date, and this provision shall apply to any claim asserted in any pleading by a defendant. And if the defendant is a corporation, whether foreign or created under the laws of this state, and whether the charter thereof prescribes the manner and place, or either, of service of process thereon, and such corporation passes into the hands of a receiver before the expiration ■ of said year, then service to be made within said year following such original services or attempt to commence the action may be made upon such receiver or his cashier, treasurer, secretary, clerk or managing agent, or if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such agents or officers of such receiver with the person having charge thereof, and if such corporation is a railway company, summons may be served upon any regular ticket or freight agent of said receiver, and if there is no such agent, then upon any conductor of such receiver, in anj' county in the state in which said railroad is located, and the summons shall be returned as if served upon said defendant. ’ ’

The allegations of the petition relied on to bring the case within the terms of this statute, are:

“And the plaintiff says that during the July term for the year of 1897, this plaintiff as such administratrix commenced her action against this defendant in this court, setting forth the facts above alleged in language identical with the words of this complaint, asking the same relief herein demanded. That she was joined by the defendant, and after many delays and continuanees, at last on the first day of March, 1899, and by mischance said action came on hearing in said court in court-room No. 3, presided over by his Honor, Judge Lamson, then of this court, where a jury was assembled hurriedly, and at a time when plaintiff happened to be unprepared for trial, and could not prosecute said action — and of which fact said court became speedily aware — and that thereupon and in the midst of plaintiff’s appeals for a postponement, by her attorney, said jury was ordered to be sworn and was sworn, in said action, and that thereupon, plaintiff by her attorney informed the court that he could not proceed with said case and would not prosecute the same; and there and then without question or prosecution thereof, and for want of it, and at the court’s demand to proceed forthwith or submit to a verdict against her, plaintiff again by her attorney stated to the court her inability to proceed or to prosecute her action and thereupon insisted upon her right to have her cause dismissed for said reason, and without prejudice, which was thereupon immediately done and entered by said court.”

Under pressure the court entered a judgment of dismissal without prejudice, which the plaintiff insisted upon — the language of the petition is “and thereupon insisted” (that is, the plaintiff insisted) “upon her right to have her cause dismissed for said reason without prejudice, which was thereupon immediately done and entered by said court.”

A proper construction ,of this petition compels us to hold that the case was dismissed by the court without prejudice, on request of plaintiff’s attorney.

The case of Siegfried v. Railroad Compamy, 50 O. S., 294, is decisive of the question here made. The record of that case shows that the action was dismissed on motion of the plaintiff without prejudice to a future action, and judgment rendered against the plaintiff for costs. The syllabus of the case reads:

“Where an action which has been commenced in due time is dismissed by the plaintiff after the time limited for the commencement of such action has expired, a new action for the same cause, thereafter commenced, is barred, though commenced within one year after the dismissal of the former action. Such dismissal is not a failure in the action, within the purview of Section 4991 of the Revised Statutes.”

Under tbe facts alleged in tbe petition, there was no waiver on the part of the defendant of its right to insist upon the bar of the cause of action by the statute of limitations. The defendant having answered the original petition, the court might, in its discretion, have refused to grant the defendant permission to withdraw his answer and file a demurrer to the petition in order to avail himself of the bar of the statute; but whether such permission should be granted or withheld was- wholly within the discretion of the court, and permission having been given to the defendant to withdraw his answer, the case stood as if no answer had been filed, and left the defendant at liberty, either by demurrer or by answer, to avail itself of the fact that the cause of action was barred by the statute of limitations.

We find no error in the record, and the judgment of the court of common pleas is affirmed.


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    CHANGE OF MATERIALS UNDER A BUILDING CONTRACT.
    Circuit Court of Cuyahoga County.
    The City of Cleveland v. W. A. Wilson and Thomas Strack.
    Decided, December 24, 1902.

      Building Contracts — Contractor Entitled to Extra Compensation for More Expensive Materials — Practice—Exception to Refusal to Charge Before Argument Must Specify that it is as to Time of Charge.

    1. Where a contractor is putting in concrete according to the specifications in his contract, and complies with a request of the one for whom he is performing the work to use a larger proportion of cement in mixing the concrete, this is in addition to his original contract, and he is entitled to recover for the additional cost of such concrete.
    2. Where a party submits requests for certain charges before the argument of a case and takes exception to the court’s refusal to give the charges as requested, but does not specify that his exception is to the refusal to charge at that time, no error results if the court in its charge after argument charges all of the propositions contained in the requests which it was proper to give.

      N. D. Baker and Judge Beacom, for plaintiff in error.

      Solders Tilden, contra.
    Caldwell, J.; Hale, J., and Marvin, J., concur.
   The defendants in error had a contract with the city of Cleveland for the construction of a certain portion of the Walworth Run Sewer. The contract included the furnishing of material and the doing of work; and, in it, was the furnishing of concrete and putting it in place as forming a part of the sewer. The parties are at variance as to the meaning of the contract, and, while the petition sets up three causes of action, the only question for consideration by the court is as to the first cause of action therein, and it is not a question to be determined from the evidence in the case as a question of fact, but is a question of law. The contract between them is in evidence, and there is a dispute as to its meaning and proper construction. The contract provides that all stone and concrete shall be hard lime-stone, sand-stones, trap, quartizite, or granite; all stone shall be, in the opinion of the chief engineer, equal to the hardest stone from the quarries of Newburgh, Ohio; and broken stone must be that taken from massive ledge; and any stone which shows a tendency to break into flat pieces, will be rejected; the broken stone must be screened, so as to be free from all dust and fine material, and must not contain fragments larger than will pass through a 2-inch ring, or so small that they will pass through a ^-inch circular hole. On page 10 of the bill of exceptions is the following provision:

“Concrete shall be composed of natural cement mortar one part; broken stone,' three parts; by measure. ’ ’

Then there is a provision as to how it shall be mixed. On page 11 (quoting):

“The proportions, as above specified, are intended to produce concrete in which the mortar fills all the voids, and the proportions of mortar and broken stone will be so adjusted that when the concrete is rammed into place, free mortar will flush the surface.”

On page 19, is this provision:

‘ ‘ The proportions of mortar, etc., when rammed in place, shall be such that free mortar shall hush to the surface; if such result is not obtained, the relative proportions of broken stone to mortar shall be changed so as to cause said result to be obtained. ’ ’

The purpose to be reached tvas that when a considerable portion of the cement was put in place and allowed to harden, the whole would form a monolithic mass.

The plaintiff claims that he made and rammed in place a certain amount of cement and that he attained the result; that free mortar came to the surface, and, by so doing, he had fulfilled the standard required by the contract, and the only test that could be applied to the work to determine whether or not the contract had been fully complied with. The contract provides the manner in which the cement shall be rammed into place, the kind and size of instruments used for that purpose, and no complaint is made in this case in regard to the manner in which the cement was made or put into place or rammed; but, after a small portion was made, the city required the ingredients of the cement to be changed, making it 2% stone to one of cement; and the plaintiff claims that, by so requiring, the defendants in error did work for the city over and above that required by the contract inasmuch as the new ingredients added very much to the cost, and that it is entitled to be paid the difference in the cost, as the cement was to be mixed by the contract and as it was actually mixed in doing the work. The city claims that the change was made, and was one that it was entitled to have made under the terms of the contract, and as to whether the material and work was done according to the contract, was determined by the chief engineer and director of public works and from whose decision there can be no appeal.

As to this claim, the contract does not provide that the test of whether the mortar, when rammed in place as provided in the contract, leaves free mortar on the surface, shall be left to the engineer or to the director of public works. The only test in the contract as to whether the material meets the requirements thereof, is, that it shall have free mortar flush to the surface. And this was a question to be determined by the jury. It can not be insisted in this case, that the jury were not warranted in finding uuder the testimony that the mortar flush to the surface would have been there if it was as first mixed and rammed. The only provision in the contract, upon this question, is that, if the mortar as is provided in the contract for it to be mixed, does not, when rammed according to the contract, have free mortar flush to the surface, then the ingredients may be changed so that that result will be obtained.

If the result was obtained as the ingredients were first mixed, then to require something more to be done would be requiring something more than the contract calls for. It would not be a change in the contract; it would be a modification in the sense in which those terms are used, but it would be requiring something to be done for which the party had not contracted, nor does the matter of notice and endorsement in writing apply to the matter of this kind under the terms of the contract, but it stands as though 500 feet of sewer was to be built and the city thereafter had required 100 feet more to be built. This would be an additional matter, not contracted for, and not contemplated by the first contract, and the party would have a right to recover it.

It is claimed on behalf of the plaintiff in error, that the trial court erred in refusing to give to the jury its requests to charge before argument. These requests were headed: "Whereupon counsel for defendants submitted to the court requests to charge the jury before argument”; and then follow the requests, all of which the court refused to charge except as he gave the first three, in substance, .in the charge, after argument; and the counsel for the plaintiff in error said, ‘ ‘ The requests asked to be given before argument were all refused and the defendant excepts to the refusal of the court to grant each of the same, numbered respectively from 1 — 9.” If these requests were good law in the case, and they were made with the request that they be charged before argument, and the court refused to charge them before argument, and an exception was taken to such refusal, then this ground of error would be well taken. There is no exception taken because the court did not charge at the particular time it was asked to do so, hut simply an exception because the requests were refused entirely in the case.

It appears from the ease of The Village of Monroeville v. Root, 54 O. S., 523, that to constitute error under Section 5190 of the Revised Statutes, as to charge before argument in a ease, the record must affirmatively show that the court was requested to give such instructions before the argument, and that its refusal to do- so was the subject of an exception. To do so means to charge that an exception was taken to a refusal to give the requests before argument not an exception to a refusal to give them generally. In the case just referred to it was said that it did not appear that it was desired that a request should be given before the argument. In the case under consideration, the request did show it.

For aught that appears in the case under consideration, the party may have been content that the court should, give the substance of its requests in his charge, after argument, as the court did do; and there is no exception taken to the point that the court did not charge this law at the time it was requested to do so. We think this ground of error is not well founded. The Cincinnati St. R. R. Co. v. William Jenkins, 11 O. C. D., 130.

We find no error in the record, and the judgment is affirmed.