text:
    REFORMATION OF A PROMISSORY NOTE.
    [Circuit Court of Cuyahoga County.]
    C. W. Reep et al v. S. A. E. Lyman.
    Decided, February 21, 1905.

      Reformation of Instruments — Promissory Rote — Evidence as to Mistake in Date of Maturity.

      In a suit for reformation of a promissory note, where it is claimed wrong dates for the maturity of different installments have been inserted, it is not necessary to show the mistake by other evidence than that afforded by the note itself, if an inspection of the note establishes in a clear and convincing manner that a mistake has been made.
    Marvin, J.; Winch, J., and Henry, J., concur.
    Error to the court of common pleas.
   Suit was brought by Lyman against Thomas Reep, .Alfred Reep and C. W. Reep, the petition setting out that the defendants executed and delivered to him on the 4th day of January, 1898, a promissory note, of which the following is a copy:

“$278.88. Cleveland, 0., January 4, 1898.

“We, or either of us, for value received, promise to pay to S. A. E. Lyman or order the sum of two hundred and seventy-eight eighty-eight hundredths dollars, with interest from date above at six per cent, per annum, payable as follows:

“Cash payments, fifty dollars, January 4, 1899.

“Cash payments, fifty dollars, January 4, 1890.

“Cash payments, fifty dollars, January 4, 1891.

“Cash payments, fifty dollars, January 4, 1892.

“Cash payments, fifty dollars, January 4, 1893.

“Cash payments, twenty-eight and eighty-eight oñe-hundredths, January 4, 1894.

“Thomas Reep,

“Alfred Reep,

“C. W. Reep.”

That by mutual mistake of all the parties to said note said dates were erroneously named in said note as “1890 for 1900, 1891 for 1901, 1892 for 1902, 1893 for 1903 and 1894 for 1904.”

The petition shows that on said note the following payments had been made: January 28, 1899, $16.50 interest and $25 principal; January —, 1900, by credit for work, etc., the sum of $50, and on April 3, 1900, by credit for berries the sum of $50, and averring that there was still due upon the note the sum of $152.08 with interest thereon -at six per cent, per annum from January 4, 1901.

The prayer of the petition is for a reformation of the note to express the true dates when said installments became due and payable, and that plaintiff have judgment for the amount still due upon the note.

The defendant, Thomas Reep, is in default, but the defendants, Alfred Reep and C. W. Reep, file a joint answer in which they say that—

“The note sued upon and set forth in the petition was one given to the plaintiff in payment of an obligation then due and payable and owing to the said plaintiff by the defendant Thomas Reep; that neither of these answering defendants were in any wise indebted to said plaintiff and that neither signed said note as principal but as endorsers for the accommodation of said plaintiff, for which they received no consideration whatever. ’ ’

To this answer the plaintiff replies, denying that the defendants, Alfred Reep and C. W. Reep, signed said note “for the accommodation of plaintiff, for which they received no consideration whatever.”

With the pleadings in this situation the case went to trial. The plaintiff seemed to. suppose that a burden rested upon him to show by means other than the note itself that the dates of payment set out in the note were so written by the mutual mistake of the parties thereto. We are inclined to think otherwise. We think an inspection of the note is clear and convincing evidence that there was a mistake in the fixing of the dates of payment, and hence the rulings made by the court upon the evidence offered by the plaintiff on that subject need not be considered, for without any of such evidence the court would have been justified in finding that such dates were written in the note by the mutual mistake of the parties.

The defendant, Charles Reep, went upon the stand and testified, among other things, that he and his brother, the defendant, Alfred Reep, signed the note as sureties for an indebtedness of their father, Thomas Reep, to Lym'an. He testifies further that he knew that he was signing the note when he signed it; that his father asked him to sign it, and that he didn’t read it. Only this evidence is referred to here, because, as we look at the case, the other evidence offered did not bear upon the issues made. No effort was made to show that other payments were made upon the note than those credited in the petition. If the dates fixed for the payment by the terms of the not© were so written by the mutual mistake of the parties, and if from the note itself one can determine the real dates intended to be fixed, the plaintiff was entitled to the reformation sought. Clearly that can be determined. No man with any experience in business would doubt for a moment that the elates were intended to be those stated in the petition. The times fixed for the payments, all except the first $50, were in the past, and it requires but a reading of the note to satisfy whoever reads it that a mistake of just ten years was made as to the time fixed for these payments. The first payment was to be made on the 4th day of January, 1899. That would be just one year after the making of the note'. The other payments are one year apart, and as specified in the note, are January 4, 1889, and so on each year including January 4, 1894. Who could read that and not know that it was intended to make that date which reads 1890 read 1900, and so on as to each of them.

In support of this we cite the case of Evans’ Administrator v. Steel, 2 Ala., 114. The ease is directly in point. The note in suit was dated May 18, 1837, and by its terms was payable on the 1st clay of January, 1040. The trial court was re-, quested to charge the jury that unless the plaintiff produced evidence to show that the words 800 were omitted by mistake in the first line of the note, a verdict could- not be returned for the plaintff. This the court refused, and it was assigned as error. In the opinion of the Supreme Court the judgment of the court below was affirmed, and this language is used:

“The note was due the first day of January, 1840. The omission of the words eight hundred, must have taken place through accident, or by design; but, in either event, the legal construction of the note would be the same. The time of payment, when considered in connection with the date, divests the note of any uncertainty, and it unquestionably means what the jury have ascertained to be its meaning by their verdict. It was entirely unnecessary to submit this question to a jury, but the charge given them contains a proper exposition of the law, as connected with the circumstances of this case. ’ ’

Miller & Linder, for plaintiffs in error.

Laubscher & Kees, for defendants in error.

Entertaining these views, the judgment of the court of common pleas is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    WHEN AN INJUNCTION MAY BE PROPERLY REFUSED.
    [Circuit Court of Geauga County.]
    Hannah M. Parsons v. The Ohio Pail Company et al.
    Decided, January Term, 1905.

      Divorce and Alimony — Lis Pendens — Injunction—Properly Refused, When.

    An injunction will not be granted when it is unconscionable to grant •the same, even though a legal right is about to be violated; and where the legal right arises out of a decree of court, rendered by mistake, an injunction is properly refused.
    Cook, J.; Laubie, J., and Burrows, J., concur.
    Error to Court of Common Pleas of Geauga County.
   The action below was for an injunction to restrain the Ohio Pail Company from cutting and carrying away the soft timber growing upon the land of plaintiff in error. The court below refused the injunction.

Plaintiff in error, Hannah M.. Parsons, brought an action for divorce and alimony in the Common Pleas Court of Geauga County. The husband was the owner in fee of two tracts of land, one of-thirty-one acres, and the other of fifty acres, situated in said county. Mrs. Parsons in her petition described these two tracts of land and asked for alinmony out of the same. About three months after the commencement of her action, 'the husband, in the presence of the wife, she making no objection, sold all the growing soft timber upon the two parcels of land to tbe Ohio Pail Company. The company did not pay for the timber at the time, bnt did so a short time afterwards by giving two checks to the husband; he signing a receipt for the same upon the back of the checks which fully set out a memorandum of the contract of sale, the wife being informed of such payment. Some time after the sale of, and payment for the timber, and’the wife’s knowledge of said payment, the court determined the suit for divorce and alimony, and allowed the wife as her reasonable alimony the fifty-acre tract of land absolutely in fee simple, without reserving the growing soft timber, and ordered the husband to execute a deed to her for the same or the decree was to operate as such deed, which decree of the court was duly entered upon the journal. After the adjournment of the term at which the decree for alimony was made, the pail company attempted to remove the timber and the action for an injunction was commenced. The answer of the defendant pail company set forth that while the decree for alimony gave the fifty-acre tract to the wife, Hannah M. Parsons, absolutely, as her alimony, yet, in the suit for alimony, evidence was introduced by both the husband and wife showing the value of both tracts of land, with the timber growing on the same, and the value, divested of the said timber, and it was conceded in such action that the timber had been sold to the pail company in the presence of the wife, and paid for by it to the husband. The answer sets forth further than the judge who tried the alimony case, in making up his finding and decree,' took into consideration the amount of money the husband had received for the timber, some nine hundred dollars, and charged the same to him, and that the thirty-one acre tract, divested of the timber and the amount of money that the husband had received, together with the thirty-one acre tract, equaled the fifty-acre tract divested of the timber, and that the intention of the judge was to give husband and wife equal amounts, or divide the property in two parts, giving each an equal share, there being no other property; but that the actual intention and finding of the judge was not put in the decree. These averments of the answer are fully sustained in this action for an injunction by the testimony of the trial judge in the alimony case, and the questions now made are: First. Should this evidence have been admitted to sustain these allegations of the answer, and especially that of said trial judge? and, second, was the court justified under this evidence in denying the injunction?

It must be conceded that ordinarily the doctrine of lis pen-dens applies to alimony eases, and that any change made in real estate after the commencement of the action has no effect as against the plaintiff when the premises are fully described. Conceding that the doctrine of lis pendens does apply to this case, yet it seems to the court that the injunction was properly refused. The decree as entered upon the journal did not speak what the court actually did. It is true that the journal entry by inadvertance did not state that the wife was to have the land subject'to said . contract. The entry, no doubt, was prepared by counsel for the wife, without calling the attention of the judge to its contents. Had it been presented to him, unquestionably he would have noticed the mistake, and we are of opinion that it was just as much an accident or mistake that could be relieved against as if he had entered the actual conclusion he had reached upon his trial docket. The law would certainly be very weak and impotent if there is no power in courts to prevent such a palpable injustice and wrong as would be perpetrated in permitting the plaintiff to receive that which she is clearly not entitled to by the mere accident and mistake of the trial judge and her counsel.

We are of opinion that a bill in equity could be filed and successfully prosecuted by the Ohio Pail Company, which was not a party to the alimony action, for relief against the wrongful effect of the judgment or that the enforcement of the same as against the plaintiff’s rights would be enjoined, and if that be so, the evidence was clearly competent.

In Freeman on Judgments, Section 500a, it is said:

“Mistake, Accident and Surprise. In treating of the vacation of judgments upon motion, we considered the fact that a judgment was procured by mistake, accident, or surprise as a ground of relief therefrom. Substantially the same grounds of relief may be urged with success in equity, except when refused on the ground that an adequate remedy existed at law, and no reason is shown why it was not pursued. Mistakes of fact, whether made by the court or by one of the parties, have been successfully employed as grounds for obtaining the interposition of courts of equity, and securing the relief of the party injured by the mistake. Thus a suit was brought on a note, and the defendants made no defense, and ‘the attorney who was attending the case made a mistake in calculating the interest on the note, and when the case was called for judgment, the judge, without calculating the amount, asked the attorney, who, being under a mistake himself,' replied $405.55, and the judgment was rendered by mistake for that amount, when it should have been for $507.80.’ The plaintiff, discovering the mistake after it was too late to correct it on motion, brought a suit in eqiiity to correct it, by compelling the defendant to pay the amount left out by mistake; and it was held that equity had, under the circumstances, jurisdiction to grant the relief sought. A like decision was made when it appeared that a jury omitted to allow the plaintiff interest to which he was entitled. It seems to be well established by the authorities that a mistake in calculating the amount due by which the judgment was entered for a wrong sum may be corrected in equity. An error, in computation is not necessarily attributable to negligence, for ‘the most careful and expert calculators sometimes make mistakes.’ So where a judgment is occasioned by the mistake of the judge, the party against whom it was entered may have relief in equity. In Georgia, a meritorious, bill of exceptions was dismissed because of a mistake in a date made by the certifying judge. The Supreme Court of that state, in passing upon this case said:

“ ‘Courts of equity are open to grant relief in cases of great injustice and wrong arising from mistake without negligence and fault upon the part of counsel or parties. The dismissal of the ease was owing to the misdate of the judge in his certificate. It was the duty of the judge to have put the correct date. The fault was not one for which the law should punish parties, and for which, under the rules, the case was dismissed. It was not beyond the reach of a court of equity to interpose and take jurisdiction of the parties and subject-matter; and if it appeared there was merit in the case, and injustice would result from the act or mistake of the judge in the premises, it was the duty of a court of equity to enjoin the collection of the judgment, and stay proceedings until a fair and full hearing upon the merits had been had. ’ ’ ’

To the same effect is Beach on Modem Equity, Section 658.

The Ohio Pail Company was not a party to the suit. It was only affected in this case by the rule of Us pendens and it would not be held to the same strictness as a party to the suit; as to what it might prove by parol evidence, 50 O. S., 528 and 540.

N. H. Bostwich, for plaintiff in error.

Wm. G. Kmg, for defendant in error.

If it was within the power of the Ohio Pail Company to correct the judgment or enjoin its enforcement by a bill in equity filed for that purpose, how much stronger the reason why an injunction should not issue to enforce the judgment founded as it is upon a conceded mistake leading to injustice and wrong. A court of equity sits as a court of conscience and will never grant an injunction when it is unconscionable to do so, even though the plaintiff may show a legal right that is about to be violated. Beach on Modern Equity, Section 643.

In Powers Appeal, 126 Pennsylvania State, 175 (11 American State R., 822), it is held:

“If an injunction is prayed for where upon consideration of the whole case it ought not in good conscience) to issue, a mere legal right in the plaintiff will not move the 'chancellor. ’ ’

In the opinion, Mr. Justice Williams says:

“The maxim of the common law, that wherever there is a' right there is a remedy for its infraction, has never been adopted by courts of equity. A party whose right is clear may sleep upon it until his demand becomes stale. He may look on ’while valuable structures are erected, when he might successfully object, and remain silent until large sums have been" expended cr important intervening interests have grown up. In such cases the fact -that he might have objected at the outset will not avail him. A suitor must not only appear in a court of equity with clean hands, but he must come with reasonable promptness, in good faith, and with a just and equitable demand; otherwise the conscience of the chancellor will not be moved. If an injunction is prayed for where upon a consideration of the whole case it ought not in good conscience to issue, a mere legal right in the plaintiff will not move the chancellor.”

To have granted an injunction in this case the judge sitting as a chancellor would have assisted in perpetrating an injustice that arose out of a mistake in the rendering and entering of the judgment in the alimony case. It would have been against good conscience and it was properly refused.

Judgment of the court of common pleas affirmed.


text:
    LIABILITY FOR INJURY AS BETWEEN PRINCIPAL AND INTERVENING CONTRACTOR.
    [Circuit Court of Cuyahoga County.]
    The American Contracting Co. v. Walter Sammon et al.
    Decided, February 9, 1905.

      Corporations — Use of Second Corporation as a Subterfuge — Liability as Between Principal and Intervening Contractor — Evidence— Conduct of Counsel in Argiment to Jury — Excessive Verdict— Remittitur — Discretion of Court.

    1. Where the evidence supports an allegation of the petition to the effect that the company executing the contract was in fact a mere tool of another company which was the principal contractor, and both companies are joined as defendants in a suit.for damages on account- of an injury sustained during the progress of the work, the principal company can not escape liability by reason of the second company being an independent contractor, and evidence against the principal company is competent.
    2. In such a case the second company against whom a verdict was returned, can- not complain of the introduction of testimony the ■tendency of which was- to place the responsibility for the accident upon the principal company.
    3. The conduct of counsel for the plaintiff in his argument to the jury does not constitute prejudicial error, where it appears that what counsel said, taken in connection with what the court said to him in the presence of the jury, could not have prejudiced the jury in his favor, but was rather calculated to prejudice the jury -against him.
    4. Where it is not certain that the court would have sustained' the motion for a new trial but for the remittitur which was allowed, the case on review comes within the rule that where the damages assessed are excessive, but not in a degree to necessarily imply the influence of passion or prejudice in their finding, the court in.the exercise of a sound discretion may make the remittitur of the excess the condition of refusing to grant a new trial.
    Marvin, J.; Winch, J., and Voorhees, J., concur.
    Error to the court of common pleas.
   Suit was brought in the court of common pleas by Walter Sammon against the King Bridge Company and the American Contracting Company, the petition alleging that the King Bridge Company was an organization organized under the laws of the state of Ohio and engaged very extensively in structural iron work of various kinds and entirely responsible pecuniarily; that the defendant, the American Contracting Company, was a corporation in name only; that, .although organized as a corporation under the laws of Ohio, it had a capital stock of but $500; that such company was “a mere formal device instigated, inflated and manipulated by said the King Bridge Company for the purpose of discreetly subletting to it by the King Bridge Company in form of words, occasional contracts, when in the opinion of said the King Bridge Company such subletting might be advisable, to avoid pecuniary responsibility to its employes for its negligent acts of omission and commission and for other like purposes: * * * being officered in form of words by the agents and servants of said the King Bridge Oómpany, and is now and ever has been the creation in fact and mere tool, of said the King Bridge Company, for the purposes above indicated, and for such purposes only.”

The plaintiff further alleges in his petition that “at the time of the accident hereinafter mentioned he was unaware of the existing relations above stated between said defendants, and that though in form of words he was nominally in the employ of said the American Contracting Company, as he now learns, he avers and charges the fact to be, that he was actually doing the work and in the employ of said the King Bridge Company.” Further, the petition alleges that on or about the 30th of November, 1901, the plaintiff, while so engaged in the nominal employment of the American Contracting Company, but in the actual employment of the King Bridge Company, he was required as a part of his duty to climb an iron column to a height of some forty feet above the surface of the ground, and that arriving so that his head was at the top of said column, for the purpose of raising himself he reached with his hand and grasped an iron plate, which should have been firmly bolted to said column, but which in fact was not so bolted, and by reason thereof it slipped from the top of the column and was precipitated with him to the ground, whereby he received great injuries and for which he brought his suit. The petition alleges that the injuries which he sustained were caused wholly by the negligence of the defendants and were in no wise contributed to by any fault or negligence on his part.

At .the close of the evidence on the part of the plaintiff the court, on motion of the King Bridge Company, arrested the evidence from the jury as to that defendant and entered a judgment in its favor and the case proceeded against the American Contracting Company,, resulting in a verdict and judgment against said last named company, to reverse which the present proceedings is brought.

Objection was made' at the trial on the part of the King Bridge Company to the introduction of any evidence against it under the petition. This objection was overruled and a proper exception taken. The only bearing that this ruling has to the case as it now stands here is as to whether evidence was not permitted against the bridge company, which was prejudicial to the contracting company.

We think it clear that under the petition evidence was admissible as against the King Bridge Company.

It was urged in argument to us that the petition shows that the contracting company was a duly organized corporation and that the plaintiff was, nominally at least, in the employ of that corporation, but what has already been quoted from the petition shows that it was distinctly averred in the petition that the plaintiff was an employe of the bridge company and that the intervention of the contracting company was a mere subterfuge, and that it was organized as a creature of the bridge company, and the.only purpose of its organization was that the bridge company might be relieved from pecuniary liability to any employe injured in performing the work which was really to be done by the bridge company, but which was nominally being done by the contracting company.

It is settled that one who contracts to have work done can not always be relieved from injuries received by an employe in some department of the work by having an independent contractor intervene between the principal contractor and the employe who receives the injury.

In C. & C. B. Co. v. Steinbock & Patrick, 61 O. S., 215, the first clause of the syllabus reads:

“Where danger to others is likely to attend the doing of certain work, unless care is observed, the person having it to do, is under a duty to see that it is done with reasonable care, and can not, by the employment of an independent contractor, relieve himself from liability for injuries resulting to others from the negligence of the contractor or his servants.”

And in the opinion in the same case, page 222, Judge Minshall uses this language:

“The doctrine of independent contractor, whereby one who lets work to be done by another, reserving no control over the performance of the work, is not liable to third persons for injuries resulting from the negligence of the contractor or his servants, is subject to several exceptions. One of these * # * is where the employer is, from the nature and character of the wbrk, under a duty to others to see that it is carefully performed.”

And this quotation is made with approval from Cockburn, C. J., in Bower v. Peate, 1 L. R. Q. B. Div., 321:

“ ‘A man who orders work to be executed, from which, in the natural course of things, injurious consequences to his neighbor must be expected to arise, unless means are adopted by which such consequences may be averted, is bound to see to the doing of that which is necessary to prevent mischief,’ ” etc.

Again, on page 223, Judge Minshall says:

“The weight of reason and authority is to the effect that, where a party is under a duty to the public, or a third person, to see that work he is about to do, or have done, is carefully performed so as to. avoid injury to others, he can not, by letting it to a contractor, avoid its liability, in case it is negligently done to the injury of another.”

We think it clear that, if the allegations of the petition as to the relations between the bridge company and the contracting company had been sustained by the evidence the bridge company could not have escaped liability by reason of the contracting company being an independent contractor, and so there was no error in allowing proper evidence to be introduced against the bridge company.

It is said, however, on the part of the plaintiff, in error that even if any evidence was admissible against the bridge company, certain evidence was permitted to go to the jury which was incompetent as against either company and which was prejudicial to the contracting company, though introduced primarily as against the bridge company.

The bill of exceptions does not purport to contain all of the evidence offered but only certain parts of such evidence upon rulings in regard to which complaint is made. The rulings upon evidence especially complained of are where the court permitted questions to be answered which were asked by counsel for plaintiff below and the purpose of which manifestly was to belittle and make insignificant the contracting company. A specimen of such is found beginning on page 4 of the bill of exceptions. The witness called by the plaintiff was Harley B. Gibbs, treasurer of the King Bridge Company, and the following questions and answers appear in the bill, the questions being asked by counsel for the plaintiff below:

“Q. The King Bridge Company is a company that has existed here a long time and has done an extensive business all over the United States ?

“A. Since 1871.

“Q. And is reputed to be, and is, in fact, a great financial responsibility?

“A. Why, yes; none better that I know of.

“Q. The president, James A. King, is in bad health, is he not?

“A. Yes; he has been incapacitated for work for some time.

‘ ‘ Q. Who was the secretary of the King Bridge Company in 1901?

“A. Norman C. King. I don’t remember in what year he was elected.

“Q. Is he a grandson, or a son?

“A. He is a grandson of Zenas King.

“Q. It is largely a King concern — was originally; It is capitalized for how much?”

To this last question objection was made, and the court overruled the objection, but before any answer was given the following question was asked:

“Q. What is the capital stock of the company?”

To this, objection was made by the bridge company; it was overruled1, and the answer is:

“A. $600,000.00.”

The court in ruling upon the admissibility of this evidence stated that the question of the financial responsibility of the bridge company had nothing to do with the recovery and that this was admitted solely with reference to the allegation of the petition as to the connection between the companies. Whether it was admissible for any purpose it is not necessary to determine here. It is certain that if any error was committed in the admission of this evidence it was not to the prejudice of the contracting company but only to the prejudice' of the bridge company, against whom no judgment was recovered.

Again, on page 7, the question was asked by counsel for the plaintiff below:

‘£ Q. About how many employes in 1901 did the King Bridge Company have ?

■££A. At the works?

“Q. Yes, from bosses and contractors and so on; from top to bottom?”

This last question was objected to and the objection overruled.

£ £A. We must have had four or five hundred. ’ ’

Later on, in the examination of the same witness, this question was asked by counsel for plaintiff:

££Q. I will inquire of you if you know about the financial size of the contract that the King Bridge Company made with this American Contracting Company, what it signified in dollars and cents ? ”

This was objected to, overruled and witness answered:

“A. I'can’t tell without referring to the contract.”

The contract was handed to the witness and the question continued and the witness was still unable to give the amount of the contract in dollars and cents.'

Then this question was asked:

“Q. Didn’t you know all the time that the American Contracting Company, as a financial institution, wasn’t worth one cent ? ”

This was objected to-, the objection overruled, and the witness answered:

“A. No, I didn’t know that.”

Then the counsel for plaintiff asked the witness if the contracting company had any offices and any materials or any devices for carrying on the work, etc., and finally this was asked:

“Q. Isn’t this the truth -about the matter, that that was not only for the purpose of avoiding detail” (the witness having said that one purpose for the. letting to the contracting company was to avoid detail), “but it was for'the purpose of getting the responsibility for poor fellows that happened to get hurt thrown off on a $500 corporation that wasn’t worth anything, and to relieve yourself of it?'”

Objection was made to this and overruled, and a good many other questions substantially of the same sort were asked and permitted to be answered, the purpose clearly being to impress upon the jury that the contracting company was an insignificant affair and really had no existence independent of the bridge company.

The plaintiff also called H. W. King, who was the vice-president of the bridge company and was president of the contracting company, and he was inquired of as to the contract made between the bridge company and the contracting company for the work on which the plaintiff below was engaged at the time of his injuries, and among other things, this was asked of him:

“Q. Isn’t this the object and purpose of the organization of this company, not for the purpose of making dividends or making money, but simply to have another institution which may have a legal existence, so that in ease an accident happens like this it shall be said the man was working for the contracting company and not for the King Bridge Company?”

Witness was permitted to answer, and did answer: “I think not. ’ ’ And then this question was asked:

‘ ‘ Q. Now, I will ask you again, if it is not the fact that was a mere contrivance — not intended to make money, never has made money, not organized by those who wanted to make money, but just as a were cQnyenienQg foy the King Bridge Company? Isn’t that the whole of it, all of it, nothing else but it (speaking of the contracting company) ?

“A. No.”

If it be conceded' that this evidence was not admissible as to the bridge company, though upon that we express no opinion, it seems clear that it could- not have been to the prejudice of the contracting company. The tendency would seem to be, if the questions had been answered in the affirmative instead of the negative, rather to relieve the contracting company from responsibility and place it all upon the bridge company.

The testimony of but one witness offered by the defendant appears in the bill. The cross-examination of this witness is set out, from which it appears that every objection to questions asked of him in such cross-examination by counsel' for the plaintiff was sustained by the court.

We hold that there was no erroneous ruling by the court upon the admission of evidence which was prejudicial to the contracting company.

Complaint is made, however, of the conduct of counsel for the plaintiff below in his argument to the jury. It appears that in the argument plaintiff’s counsel spoke of the contracting company as a “scapegoat.” Objection was made to this remark at the time, which was sustained by the court. The first remark made -by counsel to which objection was not sustained, so far as is shown by the bill, is in these words: ‘ ‘ We are here, then, dealing with the American Contracting Company. Am I justified in- saying. that the capital stock of the American Contracting Company is but $500?” An objection was made to this, and overruled. The statement was sustained by the facts, and, indeed, appears in the pleadings, but it, of course, was not a fact which- could aid in any way in determining whether the plaintiff was entitled to a verdict and if so, what the amount of such verdict should be, but how it was calculated to prejudice the contracting company we are unable to see. Usually there is complaint where an effort is made to show that the defendant in a case like this is wealthy, as tending to enhance the verdict which may be rendered against it. Iiow it could tend to enhance a verdict or to aid in obtaining a verdiet against the company to show that it had substantially no capital stock we are unable to see, and we think there was no prejudice to the contracting company in the remark made. Counsel then said:

“Am I justified in saying that the American Contracting Company appears to never have made a dollar?”

Objection was made to this and sustained, and the court said: “I wish to say now for the last time that I will not permit this kind of discussion in this case.” Counsel then said: “If Your Honor please, I hardly know what to say.” And the court said: “Anything you ehoose to say in this case which is proper — and you know what is proper — you may say without exception, but these matters have been taken out of the ease and are not open to discussion.” Counsel then said: “May I say this, then, that if it should chance in your judgment that a judgment should be rendered — in your opinion here sitting as' jurors, that a judgment should be rendered in this case larger than the amount that this company is apparently able to pay — that you ought not, therefore, to be stingy about that judgment, but that you should give that judgment as yoji think just, and (turning to the court) is that right?” The court, we think very properly, answered: “Turning to the court with that inquiry and making that statement is not right, and I will not permit it. Address yourself to the jury, and go on with the case.”

Counsel then said: “At the same time, I want to go on with the good offices and the kindness and the friendship of the court.” To which the court answered, “You have the friendship of the court, but you must proceed in order. ’ ’

Nothing more is shown by the bill as to the conduct of counsel in the argument of the case. We think the trial court pursued the proper course in the matter, and that nothing said by counsel for the plaintiff, taken in connection with what the court said to him in the presence of the jury, could have prejudiced the jury in his favor. We think it was rather calculated to prejudice the jury against him.

At the conclusion of the argument the court charged the jury. As shown by the bill, the charge was concluded at twenty minutes before twelve o’clock, the hour for the noon adjournment. The jury thereupon retired to the jury-room, reached a verdict and reported to the court about one o’clock, the conclusion of the noon adjournment, at which time the verdict of the jury was returned in favor of the plaintiff in the sum of $5,000.

A motion was made by the contracting company for a new trial, and upon the hearing of that motion the plaintiff remitted from the amount of the verdict the sum of $3,000, whereupon •the motion was overruled and judgment was entered for the plaintiff for $2,000.

It is urged that the fact that the jury in so short. a time rendered a verdict for an amount so much greater than the amount of the judgment entered by the court establishes that the verdict was obtained by the influence of passion or prejudice, and that, therefore, there was error on the part of the court in overruling the motion for a new trial, which was not cured by the remittur. The only evidence we have that the verdict was excessive is this remittur, because the evidence given to the jury is not all before us. It is not certain that the court would have sustained the motion for a new trial but for this remittur.

In the case of The Pendleton Street Railroad Co. v. John Rahmann, 22 O. S., 446, the syllabus reads:

“Where the damages assessed by a jury are excessive, but not in a degree to necessarily imply the influence of passion or prejudice in their finding, the court, in the exercise of a sound discretion, may make the remittur of the excess the condition of refusing to grant a new trial.”

In the opinion, the court recites the causes for which, under the statute, a new trial shall be allowed, among which causes appear the following: “Excessive damages appearing to have been given under the influence of passion or prejudice.” This is the exact language of our present statute (Section 5305).

In the case then under consideration the jury had returned a verdict for $10,000, and upon motion for a new trial the court entered the following order: “The court, being fully advised in the premises, overruled said motion on condition of the plaintiff remitting $5,000 on the amount of the verdict, and the plaintiff consenting thereto, it is ordered' and adjudged by the court that the plaintiff recover of the defendant his damages assessed at $5,000,” etc.

The entry in the present case is in these words: “The motion of the American Contracting Company for a new trial of this cause is heard, whereupon the plaintiff remits from the amount of the verdict of the jury the sum of $3,000, and said motion is refused,” etc.

It will be observed that in the case referred to the court made it a condition of the overruling of the motion that the plaintiff remit $5,000 from a verdict of $10,000. In the present case it does not appear from the language of the entry of the court that the remitting of $3,000 from the verdict was a condition of the overruling of the motion for a new trial, yet perhaps it is fair to assume that such was the case, and this would make the two eases almost exactly parallel. The remittur in the ease referred to was for a larger amount than in' the ease before us; the percentage, however, was not so great, but practically the eases are alike, and in the opinion in the case in 22 O. S., supra, this language is used (page 450), and seems to be entirely applicable to the case at bar:

“The presence of the conditions, necessary to bring the ease at bar clearly within the operation and peremptory rule of the statute, is not disclosed. The amount of the verdict is not such that the influence of passion or prejudice is inferable from its magnitude. It is not reducible from the facts spread upon the record. It is not shown by the finding of the court. We are not put in possession of any circumstances imposing the statutory obligation to vacate.

“It is probable, as is often the ease, that in the opinion of the judge, who heard the case, the verdict is larger than he would have given as a juror, but not such as, in the absence of statutory infirmities, excluded his discretionary power to confirm or vacate it. We can not presume the existence of such infirmities, for it is not competent to presume a state of facts repugnant to the judgment of the court.

“So far as appears, then, the entering of a judgment upon a verdict for its entire amount, would not have been disturbed by this court. But, with the consent of the plaintiff, judgment was entered for a smaller sum. If this had been done arbitrarily, without his consent, it might have beep ground of exception and reversal at his instance. But can the defendant object? The only consequence to him is the substitution of a less for a larger sum, which might have been legally exacted, and can not be held to prejudicially affect him.

Kline, Tolles & Goff, for plaintiff in error.

Kerruish, Chapman & Kerruish, for defendants in error.

“It may be supposed that a reasonable doubt existed in the mind of the court in regard to the vacation and awarding of a new trial. In the exercise of a sound discretion, with which courts are neessarily clothed, the question presented by the motion might have been determined either way, without constituting ground of exception. Wherefore, it results, that as confirmation of the entire verdict could not have been made available ground of error by the defendant, judgment for a part thereof instead of the whole, the residue being relinquished, can not.”

We reach the conclusion, therefore, that there is no error apparent upon the record in the action of the court in overruling the motion for a new trial, and no error in any of the proceedings of the court shown by the record which would justify a reversal of the judgment of the court of common pleas, and such judgment is affirmed.


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    ALIENATION OF TITLE BY DEED OF TRUST.
    [Circuit Court of Fairfield County.]
    Ohio Farmers’ Insurance Co. v. G. W. Black.
    Decided, September 23, 1904.

      Fire Insurance — Condition of Policy Against Transfer of Title — Violated Toy Execution of Trust Deed.

    A policy of fire- insurance, containing a provision against alienation of title of tbe character found in the case at bar, is rendered void by the execution of a trust deed covering the property insured for the purpose of paying off mortgage incumbrances, the residue to go to the owner who holds the policy.
    Donahue, J.; Voorhees, J., and McCarty, J., concur.
    Error to Fairfield Common Pleas Court.
   The defendant in error recovered a judgment in the court below against the plaintiff in error on a policy of insurance, one of the provisions of which policy is:-

“This policy shall become void if any change other than death of insured take place in the title to, interest in, occupancy or possession of the subject of insurance or the interest of the insured therein, or any part thereof, whether by legal process or judgment or voluntary act of the insured, and the company shall not be liable upon the policy.”

On the part of the company it is claimed that the plaintiff below parted with the title to this land by an absolute conveyance which is offered in evidence. In answer to that contention the plaintiff says that this was merely a trust deed for the purpose of paying off certain mortgage incumbrances, the residue to be returned to Black after the property was sold and debts paid.

The question arises whether this conveyance is a violation of the terms of the policy or not. We think it is. The terms of this policy do not provide only that a sale of the property would render it void. If that were true, we should find there was no sale of the property and that the transfer of the property did not affect the title of the owner to -the beneficial interest in the property. There is no sale under the authorities as we find it, but there is a change of title.

In May on Insurance, Section 289, it is said, that if the deed upon its face contains the provisions that aré here attempted to be grafted upon it by parol evidence, it would nevertheless be a change of title. But we do not place our opinion upon that authority, but upon the case of Blackwell v. Insurance Co., 48 Ohio St., 533, 539.

In that case a man owned a stock of goods upon which he took out a policy of insurance, which provided against a sale of his interest therein. Later he sold an undivided half-interest to a partner.

The court held that Blackwell could recover against the insurance company, though the policy there considered had in it the conditions against the sale or transfer of the property, because the entire interest was not transferred. But tiie Supreme Court does here annnounee the law to be that a change of title, no matter whether it conveys all beneficial interest or not is within the provisions of this policy. We think there is some difference between this case and Ohio Farmers’ Ins. Co. v. Waters, 65 Ohio St., 157; but Ohio Farmers’ Ins. Co. v. Waters, supra, is very strong authority showing the extent to which the Supreme Court has gone in giving effect to those contracts and conditions avoiding the policy. The Supreme Court holds that where a debtor transfers his property to a trustee or assignee for the payment of his debts, he violates the conditions of the policy and it becomes void. True in that case he parts with the control over the property and has only the residue thereof, yet in this case after parting with the title for the purpose of the payment of the debt, the agreement of the trustee to take it and pay the debt can be enforced by the creditor. The owner of the property could not come into court and compel the reconveyance of this trust estate unless he first paid the debt. The only thing he would have left in this property would be the residue remaining in money. The title in law is irretrievably and absolutely gone, and as said in Ohio Farmers’ Ins. Co. v. Waters, supra, all that remains to him is that portion of the fund arising from the sale of it not exhausted in the payment of the debts.

Lee Elliott and William Davidson, for plaintiff in error.

J. S. Sites, for defendant in error.

The judgment of the court below will be reversed with costs and the case remanded.


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    PLEA IN BAR.
    [Circuit Court of Franklin County.]
    William Whitman v. State of Ohio (two cases).
    Decided, March 25, 1905.

      Criminal Law — Plea in Bar — How Supported — Error Proceedings— Attaching of Transcript to Pldfi.

    When a plea in bar is offered in a criminal case, it must he supported by the record of the former conviction or acquittal for the same «ffense, and the accused must also prove that he is the same person who stood charged in the record. This requirement is not met by the mere attaching of the transcript to the plea, and the overruling of the plea under such circumstances is not error. "

      Sullivan, J.; Wilson, J., and Dustin, J., concur.
    Heard on error.
   These two eases, involving substantially the same questions, were presented and argued by counsel as one case, and what is said in the opinion disposing of the contention between counsel applies to both eases. The record shows before proceeding to trial before the mayor, counsel for plaintiff in error filed a plea in bar in shape of a motion. To this motion was attached certified transcripts from the docket of a justice of the peace, which were referred to in the motion, as certain exhibits claimed by counsel for the accused as showing that the accused had been charged, tried and convicted of the same offense set forth in the respective affidavits before the mayor. These several transcripts are attached to the respective bills of exception, but nowhere referred to or made a part of the bill as required by the 'statute, and therefore can not be considered as constituting a part of the billitself. L. E. & W. R. R. Co. v. Mackey, 53 Ohio State, 370.

Counsel for the accused contends that because of the fact as shown by the record, that a plea in bar was filed before the mayor, and that the transcript of the docket of the justice before whom it was claimed that the accused had been tried and convicted for the same offense, was attached thereto as an exhibit, that he had done all that was necessary to support the plea, and that upon the mayor overruling his motion or plea in bar as designated by him that when he had his exception noted in the form of a journal entry, Section 6565 had been fully complied with, and that this court can review that proceeding of the' mayor, though the transcripts referred to are not made a part of the general bill.

When a plea in bar is offered, it must be supported not only by the record of a former conviction or an acquital of the same offense, but the accused must further prove that he is the same person charged in the record. In these cases the act of attaching the transcript to the plea _ was not an offering of them in evidence. The record fails to show that they were offered in evidence. After the mayor 'Overruled the plea in bar, the counsel for the accused excepted generally and then excepted specially because the court overruled the motion before reading the transcript. ■ This is followed by a statement by counsel for the accused as to what the transcripts contained (bill of exceptions, 405), but nowhere is it shown by the bill of exceptions that the transcripts were offered in evidence upon the plea in bar or for any other purpose, and that the mayor passed upon the competency or incompetency of them as evidence and it can not be assumed that they were offered. Nowhere in the bill does it appear that the accused offered any testimony to show that he was the identical person stated in the record. The accused having failed to present any evidence Upon this plea in bar, the court below could not do otherwise than dismiss it, which was accomplished by overruling the motion.

E. C. Turner, for plaintiff.

C. T. Clark, for defendant.

A plea in bar presents an issue of fact, and hence requires evidence and a finding upon the evidence; all of which must be presented by a bill of exceptions, taken as required by statute. So that the judgment upon such issue may, if desired, be reviewed by proceedings in error. • Under Section 6565, the judgment of the mayor upon this issue could have been reviewed, independent of other issues in the causes, by proceedings in error, upon a bill containing the evidence upon this issue alone. The record simply shows that a plea in bar was made with no testimony offered to support it, and the overruling of the' motion must be assumed to be.a judgment adverse to the accused because the plea was not sustained as required by law.

We therefore find no prejudicial error to plaintiff upon this ground, and none in any of the other several grounds set forth in this petition. It therefore follows that the judgment of the court below mu'st be affirmed at plaintiff’s costs.


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    ASSIGNMENTS OF UNEARNED WAGES.
    [Circuit Court of Cuyahoga County.]
    The Brooks Company v. D. H. Tolman.
    Decided, January 27, 1905.

      Executory Contracts — Transfer of Title to the Thing Sold — Assignment of Unearned Wages — Under Existing Employment — Homestead Exemption.

    An assignment of wages or salary to be earned' under an existing employment, made in good faith and for a valuable consideration, is valid where the relation between the employe and his employer is such that the employe may reasonably be expected .to earn the wages covered by the contract, and against such a contract a claim for homestead exemption can not prevail.
    Marvin, J.; Hale, J., and Winch, J., concur.
    Error to the court of common pleas.
   This case is here by a proceeding in error.

Tolman brought suit against the Brooks Company alleging that—

“On or about the 3d day of January, 1901, D. C. Finneran, for a valuable consideration, entered into a written contract with the plaintiff;, D. H. Tolman, wherein the said D. C. Finneran agreed to sell, assign and transfer, and did thereby, sell, assign and transfer to this plaintiff all his salary due or to become due to said D. C. Finneran from the Brooks Company for the period of ten years from the date of said instrument, and which salary amounted to sixteen ($16) dollars per week, and became due and payable on the following dates:” [Then follows dates every week up to the 5th of January, 1902.] “Said written agreement provided that said D. C. Finneran should collect said money due him from said the Brooks Company, when it should become due on the days and dates above specified, on condition that he should turn over to said D. H. Tolman the amount of money designated after each and every date on or before the expiration of one day after said date; said written agreement further provided that on the failure of said D. C. Finneran to turn over to said D. H. Tolman said money as provided, the said right of D. C. Finneran to collect said money should become null and void, and D. H. Tolman should collect, and should have the sole right to collect all the money due or to become due to said D. C. Finneran from said the Brooks Company on the days and dates above specified, and further provided that said D. IT. Tolman should apply said money received to the liquidation of an indebtedness due to D. IT Tolman from said D. C. Finneran to the amount of twenty-four ($24) dollars, and that the balance of said money so collected from said the Brooks Company, over and above twenty-four ($24) dollars, should be by D. IT. Tolman returned to D. C. Finneran. * * *

“This plaintiff says that said D. C. Finneran by five payments of two dollars' ($2) each made between the 12th day of January, 1901, and March 12, 1901, did reduce his said indebtedness to said D. H. Tolman to the amount of $14, all of which was on said March 12, 1901, due and payable.

“Plaintiff says that said D. C. Finneran did fail to turn over to said D. H. Tolman the money due or to become due said D. C. Finneran from the Brooks Company on January 5, 1901, January 12,' 1901, January 19, 1901, January 26, 1901, February 2, 1901, February 9, 1901, February 16, 1901, February 23, 1901, March 2, 1901, March 9, 1901, and March 16, 1901, on or before the expiration of one day after said dates, or any time thereafter, and that upon said failure, the right of said D. C. Finneran to collect said money from said the Brooks Company became null and void, and said D. TI. Tolman became the rightful and proper party to collect said money under said written agreement.

.“This plaintiff says that on the 22d day of March, 1901, he did notify the said the Brooks Company of the existence of said agreement and did file on said March 22, 1901, a copy of said agreement with the said the Brooks Company, and demanded from the said the Brooks Company the money due D. C. Finneran at that time, or to become due on the 23d day of March, 1901, and on each seventh day thereafter; said demand of payment was again made on the said 23d day of March, 1901, from the said the Brooks Company, amd at various dates since said March 23, 1901. The said the Brooks Company did refuse at all times to pay to said D. IT. Tolman the money due, or to become due, the said D. C. Finneran, from said the Brooks Company, or any part thereof, and does still so refuse to pay. The amount due to said D. C. Finneran from said the Brooks Company, on the 22d' and 23d days of March, 1901, was the sum of sixteen ($16) dollars, and a like sum of sixteen ($16) dollars has been due on each and every seventh day since March 23, 1901, from said the Brooks Company to the said D. C. Finneran.

“At the time said written agreement was entered into and the assignment of wages made, to-wit, on or about the 3d day of January, 1901, the said D. C. Finneran was employed by the said the Brooks Company, and was under a contract of employment with said company. Said D. C. Finneran continued to be employed by the said the Brooks Company, and under said contract of employment with said company, at all the times and dates mentioned in this petition, and is still so employed.”

To this an answer was filed by the Brooks Company, admitting the making of the contract between Tolman and Finneran; that a copy of the contract was received by the defendant on March 22, 1901; that when it received said copy of contract Finneran was in its employ, but says that he was working by the 'day at $2.66, but that he was employed only by the day and for no definite time. It admits that Finneran failed to turn over to plaintiff his wages at the time specified in the petition, and says that it was owing to Finneran $15 as wages at the time the contract was filed with it, and denies all the other allegations of the petition.

Then follows a second defense, which reads:

“Said defendant for this its second defense to plaintiff’s petition, makes a part hereof all of the facts and allegations set forth in his first defense as fully as if herein re-written, and in addition thereto says:

“1. That said D. C. Finneran at the time said copy of said agreement was was received by it as aforesaid, was and is a resident and citizen of the state of Ohio and a married man and the head and support of a family, consisting of himself, wife and two minor children about three or four years old, and not the owner of a homestead, and his wife was not the owner of a homestead and their entire possessions consisted of household goods not to exceed in value $200, all of which was of necessity used and in use by them in housekeeping, and when it became known to them that said copy of said agreement had been mailed to defendant and received as aforesaid, each and both of- them claimed of defendant said wages as exempt and selected the same and demanded the same of defendant as exempt in lieu of a homestead, and said D. C. Finneran directed defendant to disregard said agreement and repudiated the same and countermanded the order to pay said wages to plaintiff and directed payment thereof to his wife.

“2. That said wages aggregating some $15 owing by defendant to said D. C. Finneran were the personal earnings of said D. C. Finneran earned within the two weeks next preceding the mailing of said copy of said agreement to defendant and its receipt thereof as aforesaid, and the same were necessary for the support of the family of said D. C. Finneran, and as soon as it became known by D. C. Finneran and his wife that a copy of said agreement had been received by defendant as aforesaid, both he and his wife demanded said wages as his personal earnings necessary for the support of his family and exempt by law, and said D. C. Finneran ordered and directed defendant to disregard said agreement, repudiated the same, countermanded the order to pay said wages to plaintiff, and directed payment thereof to his wife, and this defendant did so.”

A general demurrer to each of these defenses was filed by the plaintiff. This demurrer was sustained, and the defendant not desiring to plead further, judgment was rendered for the plaintiff, to reverse which the present proceeding is prosecuted.

The question thus presented for determination is, whether there was error in sustaining such demurrer.

On the part of the plaintiff in error it is urged that the contract between Finneran and Tolman was purely executory; that in such a contract title to the thing contracted about does not pass from one party to the other immediately upon the making of the contract, and that therefore such contract does not constitute a sale; that at most it is only a contract to sell, one of the essentials of a sale being a present transfer of the title to the thing sold. (See notes to Sections 1-4, Benjamin on Sales, 7th Ed.)

It is said there cóuld be no present transfer of title to that which at the time of the contract had no existence; that whatever was to become due to Finneran from the Brooks Company was to be earned in the future, and hence could not have at the date of this contract any present existence. Counsel in argument liken it to a chair which one at his own place of business and from his own material agrees to make for another for1 an agreed price, and urge that as no chair is in existence when the contract is made, there can be no transfer of title at that time, and hence no sale of the chair. Doubtless, in the case of the chair, until there is a subsequent appropriation of the chair made to the contract, there would be no sale (Benjamin on Sales, Section 358).

The argument likening the contract involved in this case to the case of the chair supposed by counsel, however plausible, seems to be entirely overcome by the authorities. Cases involving the exact question presented here have been before the courts in many of the states.

In the second volume of A. & E. Ency. of Law, 1st Ed., page 1031, this language is used in the text:

“An assignment of wages or salary to be earned under an existing employment, made in good faith and for a valuable consideration, is valid.”

Numerous authorities are cited in support of the text.

In Kane et al v. Clough et al, 36 Mich., 436, the facts are that on October 16, 1874, one Tucker was employed by the defendants in their organ manufactory, doing piece-work but without any definite contract for the continuance of such employment. Pie was then indebted to his mother, and he executed to her an assignment of all the wages that thereafter might become due to him from his employers. Between that date and December 9 following $65.50 had become due to him for his labor. This was less than he was owing to his mother. On page 439, it is said in the opinion:

“It is this sum which is now in dispute; the plaintiffs claiming that the assignment could not reach it, because the moneys were not earned when the assignment was made, and there was no subsisting contract under which they were to be earned.

“It has often been decided that a mere possibility is not the subject of assignment. A contingent claim against a foreign country- to damages to be recovered by treaty is an illustration. * * * A sale of fish thereafter to be caught passes no title when they are caught. The same is held of a sale of sums to be earned by a physician in specified future years. * * * In- Massachusetts an assignment of future services, there being no existing contract of service, has been held invalid; but cases are cited in the same state which hold that if the assignor is at the time under a contract of service-, it is maintainable. * * * In New Hampshire it is decided that wages to become due maybe effectually assigned, provided there is at the time an existing contract under which they are to be earned. * * * The distinction -between the cases in which the wages are not earned under a contract existing at the time of the assignment and those in which they are, is said to be that ‘in the former the future earnings are a mere possibility, coupled with no interest, while in the latter the possibility of future earnings is coupled with an interest, and the right to them, though contingent and liable to be defeated, is a vested right.’ ”

This- case was where an effort was made to garnishee the wages of an employe. The court say further:

“But we are inclined to think that this case ought not to be distinguished from those in which the wages were earned under a continuous contract. The defendant was employed at the time the assignment was made. It is true he might never have received more work, but the expectation of continuous work existed on the part of employer and employed. The proposed transfer had reference to wages to be earned in an existing employment, and in-this it differed from that in Mulhall v. Quinn, supra, where the- defendant only performed jobs occasionally. ’ ’

It was held in this Michigan case that the transfer to the mother was a complete transfer of the title to the earnings.

In State, ex rel Bank, v. Hastings, 15 Wis., 75, a judge -of the circuit court had made an assignment of his salary to be earned after the time of the assignment and to become due on the 1st of October, 1891. He undertook to repudiate it, said that it was an assignment of a thing not in existence, but it was held that the assignment was valid and that the assignee was the owner of the salary earned after the assignment was made.

The case of Hawley v. Bristol, 36 Conn., 26, differs from the ease now being considered, in that there was a definite fixed employment. The assignor had already earned $50 under a contract. He was to earn $625 in all. It was there held that the assignment of that to be thereafter earned was valid and carried the title.

In the ease of Metcalf v. Kincaid, 87 Iowa, 443, the second clause of the syllabus reads:

“An assignment of wages' yet to be earned is- good as against the claims of attaching creditors, if accepted, and if, at the time it is made, there is an existing engagement or employment, by virtue of which wages are being, and in the future may reasonably be expected to be, earned, even though there is no contract or fixed1 time of employment.”

And in the opinion, on page 447, it is said:

“It has often been held1 that when one assigns wages to be earned under -an engagement then existing, and when he was actually at work thereunder, at a fixed price, payable at a certain time, though no contract of employment existed for any stipulated time, yet such an assignment, if accepted, would be good as against a garnishment by creditors of the assignor.”

To the same effect is the case of Boylen v. Leonard, 84 Mass., 407. The second clause of the syllabus reads:

“An assignment of wages, without limitation of time, will include wages earned by a laborer for nine months thereafter, under a contract then existing by which he was to labor for his employer for an indefinite time, although his rate of wages was afterward increased; especially if the parties have treated the assignment as applicable to such wages, and payments thereof have been made to the assignee since the rate was increased. ’ ’

Other authorities are to the same effect, the holdings seeming to be that assignments of future earnings for which there is such relation between the assignor .and his employer as that the employe may reasonably be expected to earn wages in the future, are valid1.

We come to the conclusion, then, that this assignment is valid and transferred the ownership of the wages earned after the contract was made — the wages that Finneran thereafter earned from the Brooks Company. That being true, no claim for exemption could prevail as against it because the wages, not being the property of Finneran but the property of the assignee, neither Finneran or his family could claim an exemption any more than in chattel property which is sold by the owner.

Arnold Green, for plaintiff in error.

Wm. E. Patterson, for defendant in error.

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


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    NEGLIGENCE IN STANDING ON PLATFORM OF INTERURBAN CAR.
    [Circuit Court of Hamilton County.]
    C., L. & A. Electric Street Ry. Co. v. George H. Lohe, Administrator.
    Decided, January, 1905.

      Street Railways — Negligence—Standing on Platform of Interurhan Gar When Running through the Open Country — Not Proximate Cause of Injury, When — Court may Declare Conduct Negligence Per Se, When.

      1. Where a passenger on an interurban railway car was thrown therefrom and killed by the derailing of the car while running through the open country, the fact that he was standing on the platform • at the time can not be held to be the proximate i cause of his death, when the .evidence does not disclose that there was available or reasonably convenient room on the inside of the car; that the injury would not have happened had he been on the inside; that he had notice of a sign, prohibiting passengers from standing on the platform; or that he was ordered inside the car by the company’s servants, and refused to go.
    2. The court may find as a matter of law that certain conduct constitutes contributory negligence per se, when it is such an act Ith'at all men must conclude that it was the proximate cause of the injury complained of.
    Jelke, P. J.; Swing, J., and Gieeen, J., concur.
    Error to Hamilton Common Pleas Court.
   The law of Ohio, and particularly the law in this case, was laid down by the Supreme Court, when this same case was before it, and is reported in the Cin., L. & A. Elec. St. Ry. v. Lohe, 68 Ohio St., 101:

“1. An interurban electric railroad is classed as a street railroad by the statutes of this state.

“2. While such interurban railroad companies are subject to the same regulations, and have all the powers of street railroad companies, so far as applicable, the law of negligence governing the standing on a platform of a moving street car in a municipality, is not applicable to the case of standing on such platform of a moving interurban car in the open country.

“3. The law of negligence governing the standing on a platform of a moving interurban ear outside of a municipality, is the same as in the ease of steam cars; and where a rule of the company prohibits passengers from standing on the platform, * * * or where the passengers upon request refuse to enter the car, there being in either case vacant seats, they may remain on the platform at their peril.

“4. In a contract for safe carriage there is an implied agreement that the passenger will obey the reasonable rules of the carrier; and where the passenger purposely violates such rulé, and is thereby injured, he can not recover damages from the carrier in an action on the contract.”

After such reversal, the case was remanded to the court of common pleas and there tried again, resulting once more in a verdict for the plaintiff, Lohe, administrator; upon which the court rendered judgment, error to which is now prosecuted to this court.

If the ease, as submitted to the jury at this recent trial, is substantially the same case as was contained in the record which went to the Supreme Court, the verdict below can not be sustained, as the same conclusion must be reached as was reached by the Supreme Court.

An examination of the record shows that at this hearing the testimony presented a somewhat different case and developed issues of fact on all the matters found proven or assumed by the Supreme Court in its opinion.

Probably in view of the Supreme Court’s opinion counsel in presenting his case emphasized whatever of dispute there was in these issues of fact. In this second trial, the whole first half of the case was eliminated by an agreed statement in regard to the alleged negligence of the defendant, The Cincinnati, Lawreneeburgh & Aurora Electric Street Railroad Company, which was as follows:

“For the purpose of facilitating the trial of this case, it is hereby agreed that neither party shall offer any evidence whatever on the question of the negligence of the defendant, that is, the railroad company, but that question shall be considered and determined as though the plaintiff had offered sufficient evidence to establish the allegations of the petition as to the negligence of the defendant. This agreement not to limit the right of either party in the offer of evidence as to any or all other questions in the case.”

It appears in the testimony that the decedent, William Lohe, was standing upon the platform of defendant’s car at the time when the car was derailed. It is claimed on behalf of the plaintiff that he was there because there was no available or reasonably convenient room in the car, and that being there under these circumstances, it was not negligence per se.

When last before the Supreme Court, the court said, page 111:

“In the ease at bar the deceased was ordered into the car by the conductor, and requested to go in by the assistant conductor; there were vacant seats inside; a sign was up, ‘Passengers not allowed on the platform, ’ and yet he remained on the platform because he wanted to smoke a cigar. ’ ’

In the case of Cincinnati, D. & T. Trac. Co. v. Kent, this court following the decision of the Supreme Court in C., L. & A. Elec. St. Ry. v. Lohe, supra, and the case of Hickey v. Railway, 96 Mass. (14 Allen), 429, which our Supreme Court approved, held that it was negligence for a passenger to voluntarily and unnecessarily stand upon the platform of an interurban ear when there was standing room inside.

The first proposition of- the syllabus in Hickey v. Railway, supra, is:

“A traveler by railroad can not maintain an action against a railroad, company recover damages for a personal injury sustained by him in consequence of his voluntarily and unnecessarily standing upon the platform of a passenger car, while the train is in motion.”

As the case was submitted to the jury at this latter hearing, there was conflicting testimony on this issue as to whether or not there was standing room within the ear. It appears that parties boarded this car and subsequently found seats. Most of these parties, however, were ladies, and it does not appear whether they found vacant seats or whether they secured seats through the gallantry of gentlemen who surrendered their seats to them. Just how crowded this ear was, and whether or not standing room within was reasonably available or could be conveniently obtained, is a mixed1 and doubtful question involving many elements of fact,, which must, by its nature, have been submitted to the jury, as it ivas in this case. There is reported a ease by the Illinois Supreme Court, October 24, 1904, Chicago & W. I. Ry. v. Newell (72 N. E. Rep., 416), wherein it is said:

“1. Where a railroad train was so crowded with passengers that some of them were standing on the platform, and the train rounded a curve at the rate of twenty-five or thirty miles an hour, and a passenger was thrown off, in an action for his injuries it could not be said as a matter of law that there was no negligence in so operating the train.

“2. Where a passenger was injured by being thrown from the platform- of a railroad train as it rounded a curve, in an action for the injuries, it appearing that neither seats nor standing room in the cars could be conveniently obtained, it was a question for the jury whether plaintiff was guilty of contributory negligence. ’ ’

“Ordinarily, it is prima facie evidence -of negligence for a passenger to stand or ride upon the platform of a moving railway train; but where, as the evidence tends to show in this ease neither seats nor standing room in the ears could be conveniently obtained, it became a question of fact for the jury whether the plaintiff was guilty of contributory negligence by being upon the platform from which he fell. It is only when the inference of negligence necessarily results from the statement of facts that the court can properly instruct the jury that such facts establish negligence as a matter of law. Standing or sitting upon the platform or steps of a railway car when the train is in motion, although, it may be prima facie evidence of negligence, is not, under all circumstances, negligence per se, and is a matter of law.”

If submitted to us de novo we would be inclined to find on the testimony contained in the record that there was sufficient standing room within the car not to. justify the deceased, Lohe, in standing where he did upon the platform. But we are not prepared to hold that a finding on this issue by the jury is manifestly against the weight of the evidence. It was stated as a fact in the opinion of the Supreme Court that the conductor and the assistant conductor had requested the deceased, William Lohe, to go inside. This fact is also put in issue at this latter hearing in the common pleas court. One of these men weakened somewhat in his testimony and there was evidence tending to contradict any such request on the part of either of them by witnesses who stood beside the conductor and assistant conductor and the said William Lohe, and testified that they did not hear either of them make such request.

Again, in the former hearing, it appears unchallenged, that there was a sign up, “Passengers not allowed on the platform.” In the syllabus in Cin. L. & A. Elec. St. Ry. v. Lohe, supra, the court says:

“Where the passenger purposely violates such rule, and is thereby injured, he can not recover damages from the carrier in an action on the contract.”

It appears from the record that this road had been in operation but a few days prior to the happening of this accident, and that at noon of the day upon which the accident happened, the company, for the first time, promulgated the rule against passengers standing on the platform, by putting up the sign as claimed. There is no other testimony tending to bring home knowledge of this rule to the deceased, William Lohe, other than by the hanging up of the sign. On the other hand, there is testimony tending to show that from the time the road began operation, that the platforms were frequently and almost usually crowded, and that said William Lohe lived upon the line of this railroad where he would probably observe this custom at least to the extent that the practice had been tolerated during the short period of operation of the road.

It does not appear that said William Lohe as a fact did see this sign, but it would be a question to be left to the jury, in view of the size and character of the sign, its location, the crowd upon the ear and upon the platform, whether a reasonable man in the exercise of ordinary caution and care and observation, would or ought to have seen it; and it is possible for the jury to have found that in view of all the facts and circumstances shown in this record that the said William Lohe did not see this sign and did not know of the rule aforesaid.

As the case was submitted to the jury at this last hearing there is left open the entire question of proximate cause — be it what it may — whether or not, it contributed to his fatal injury.

The court may find as a matter of law that certain conduct constitutes contributory negligence per se, when it is such an act that all men must conclude that it was the proximate cause of the injury. Here, however, the question is somewhat obscure and left in the domain of issues of fact upon which there is conflicting testimony.

It appears that the deceased William Lohe was found under the platform of the car, with the handle rail resting across but not touching his neck. It is true that he probably could not have been in this position had he not been upon the platform, and yet this is not indisputably so, because it appears that one other passenger who stood inside the car but near the door was precipitated out upon the platform and likewise fell partially under the ear and had his leg broken. Neither is it certain that said William Lohe was killed by the car falling on him. He may have been killed inside the vestibule fey part of the car striking him; he may have been killed by striking the ground; or he may have been killed by the ear and the handle rail falling upon him. The Supreme Court takes as its basis of fact in the former case, and states:

“Those inside the car escaped without injury. If he had gone inside when orderd to do so, the presumption is that he too would have escaped.”

Peck, Shaffer & Peck, for plaintiff in error.

A. B. Benedict, for defendant in error.

It now appears at this hearing on the contrary that there was a lady within the car who was severely injured and who subsequently died, and others within the car were badly shaken and some injured. This being true, may not the jury have found that even had the said William Lohe taken the most available place within the car which might have been near the door, that the accident might have happened or would have happened, with precisely the same results; that therefore the fact that the deceased, William Lohe, was upon the platform, was not the proximate cause of the injury. Thus we see that the four elements of fact which were assumed and adopted as the basis of the Supreme Court’s decision, are all in this latter trial put at issue in such a manner that the jury could find for the plaintiff, and the record is such that the trial court and this court may well shrink from saying it is so manifestly against the weight of the evidence as to justify setting the verdict aside.

We are therefore of opinion that if we do not disturb the finding of the jury upon any of these issues of fact which at this last trial were open and submitted to the jury, there is nothing in their verdict or the judgment of the court below inconsistent with the principles of law laid down by the Supreme Court, when this case was before them, and we are therefore constrained to affirm the judgment.


text:
    PUBLICATION OF ORDINANCES.
    [Circuit Court of Franklin County.]
    The City of Columbus, Ohio, v. John T. Barr, Clerk of the City of Columbus.
    Decided, March 15, 1905.

      Newspapers — Of “Opposite Politics" — And Independent in Politics— Construction of the Statute Relating to Publication of Ordinances.

    The intention of the Legislature by the provision of Section 1536-619, requiring that all ordinances and resolutions requiring publication shall be published in two newspapers of “opposite politics,” was not to cheapen publication by competitive bidding; and conformity with this statute requires that publication shall be made in two; papers which are the recognized organs of parties politically opposed, and does not permit of an award of such advertising to an independent newspaper which acknowledges allegiance to no political party.
    Wilson, J.; Sullivan, J., and Dustin, J., concur.
    Heard on appeal.
   This action is prosecuted by the city solicitor in the name of the city at the request of a tax-payer. It seeks to enjoin the defendant, who is the city clerk, from entering into a contract, authorized by a resolution of the city council, with The Columbus Dispatch, an independent newspaper, published in the English language, and of general circulation in the city, for the publication of the ordinances and resolutions of the city council, required by law to be published in two newspapers of “opposite polities.”

The claim is that such contract and publication would be unauthorized, illegal and void, for the reason that the paper in question is not within the designation of the statute.

The provision of the statute is that “all ordinances and resolutions requiring publication shall be published in two newspapers of opposite politics, published and of general circulation in such municipality” (Section 1586-619, Revised Statutes).

The character of The Columbus Dispatch is, as shown by the evidence, beyond question that of an independent newspaper. As is testified by its editor: “It has its polities, and by this I mean its political sentiments and opinions, or its political complexion. Its politics consists in an active, and positive advocacy of such principles and policies touching the administration of public affairs, as it believes to be right and beneficial to the state and community, and of such candidates for office as will best promote the public welfare, and of doing this in its own way untrammeled by any party organization, caucus, man or set of men.” It distinctly disavows any party name, .and refuses to be bound by any party allegiance. The only question, therefore, is, does such a newspaper fall within the language of the statute.

The statute has not been construed by the courts of this state. The only authorities cited, in argument, are standard definitions of the words to be interpreted by the leading lexicographers and scientific writers, and People, ex rel, v. Supervisors, 56 N. Y., 249; Shields v. McGregor, 91 Mo., 534; Weaver v. Toney, 54 S. W., 732.

The meaning of the words can not be determined from the lexicographer’s standpoint for the reason that more than one signification is usually and ordinarily attributable to them, owing to the context. The authorities cited are neither controlling nor persuasive. Resort must be had to other means in order to ascertain the intention of the Legislature, which must govern. Similar provisions in other statutes reflect some light upon this question. Section 917 provides that the commissioners shall cause their financial statement, together with the report of the examiners, to be published “in two newspapers of different political parties.”

In the case of The Ohio State Journal Company v. Brown, 19 C. C., 325, this court held that an independent newspaper was not within the meaning of this section. If its language is the equivalent of the language to be interpreted here, that case is authority; otherwise not".

Section 1129 requires the report of the committee appointed to examine the treasury to be published “in two newspapers of opposite politics.” Section 4367 provides:

“Every proclamation for an election, or fixing the times of holding court, notice of the rates of taxation, bridge, pike, and notice to contractors, and such other advertisements of general interest to the tax-payers as the auditor, treasurer, probate judge or commissioners may deem proper, shall be published in two newspapers of opposite politics, at the county seat, if there be such published at the county seat. ’ ’

Before the revision of 1880 the language of this section was “in two newspaper^, one of each political party, if there be two papers of different political principles printed within said county in each of the several counties of the state.” It will be observed that.this language was in need of abridgment. Unless the plain meaning of the statute in its present form forbids, it is open to the presumption that the codifiers did not intend to change the law, but to express it in better phraseology. It would be remarkable, also, if the proclamation for an election were not required to be published in the party papers. '

Section 895 reads:

“The commissioners shall subscribe for one copy of the leading newspapers of each political party, printed and published in their county, and cause the same to be bound and filed in the auditor’s office, as public archives, for the gratuitous inspection of the citizens of such county.”

It is not conceivable that the purpose of this statute is to establish a reading room. Its purpose is to preserve a reference file of the publications required by law to be made by the various officers of the county, open to the inspection of the public, as well as for providing a refutation of any claimed delinquencies in that regard. In order that these publications may thus be preserved, it is necessary that they be published in political party newspapers, for which alone the commissioners are authorized to subscribe.

It follows from the language of the foregoing statutes that unless the words “different political parties” and “opposite polities” mean the same, the bulk of the public printing provided for in Sections 1129 and 4367 may be omitted from the files, because not published in a party newspaper.

A construction that would make this result possible is unreasonable, and can not stand opposed to a construction which, by holding the terms in the different statutes synonymous, will preserve all official publications.

The word politics, when applied to the science of government in this country, means party politics. The people organize themselves into parties for the purpose of imposing upon the government a more or less well defined policy, through the election of chosen candidates under a party name, each party having its own policy and candidates. In the common acceptation, the arena on which these parties contend is the field of American politics.

So in the statute under review the Legislature did not use the words “opposite polities” in any broader sense. It was not intended that the various boards and councils, whose duty it is to provide for the publication, should take upon themselves the duty of determining the politics of any given newspaper, abstractly, from principle. If that were permissible, the board or the council, not the Legislature, would determine the kind of paper in which the publication could be made, and by refinement could defeat the very purpose of the statute. That the municipal council does not have arbitrary power, or even wide latitude, in the selection of a newspaper, is made obvious by the provisions of Section 1536-908, which prescribe when it may depart from the statutory designation. The kind of newspaper is pre-determined by an established party allegiance, which denotes its politics, and which the council is not at liberty to ignore.

An independent paper, which refuses to be bound by the ties of allegiance, is not within the classification, for the reason •that, compared with any other paper, it may be of opposite polities on one question, and of the same politics on another, at one and the same time; of opposite politics to-day and of the same politics to-morrow, evading the provision of the statute at will.

J. M. Butler, for plaintiff;.

W. O. Henderson, for defendant.

The purpose of the Legislature was to provide for the widest publicity of the public acts of the municipal council, under a general law. It is common knowledge that this purpose would be best accomplished, as a general rule, by'publication in the newspapers of opposite party polities, for the reason that when applied to all municipalities, they are the local papers that generally reach the most people. The independent newspaper, .as a rule, is confined to the larger cities. It may best subserve the purpose of the statute in a few cities, but it is the exception that must fail under a general law.

The Legislature did not undertake to cheapen the publication by competition. The competitive bidding resorted to in this ease, is the policy of the city, and, as is expressed in-the ordinance providing for the same, is not to be used to annul the statute. It may be that this interpretation opens the door to political aggrandizement, but it still remains that extended publicity is the governing purpose of the statute, and must be kept to the fore when seeking to discover the legislative intent. No useful public purpose could be subserved by holding that this language should receive a more liberal construction, unless it be that it would provide competition, but that must yield if it would narrow publicity.

The finding and decree will be for the city. Injunction- as prayed for.