text:
    Boerner, Appellee, v. Hullinger et al., Appellants.
    (No. 1030
    Decided December 4, 1952.)

      Mr. Sylvan H. Wise, for appellee.

      Mr. 1. B. Steele and Mr. Gene Garling, for appellant.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Allen County, in an action wherein the appellee, Rosemary Boerner, was plaintiff, and the appellant, Cecelia Hullinger, was one of the defendants.

The action is one to have a judgment procured by plaintiff against Bernard M. Hullinger, one of the defendants, adjudicated the first and best lien on certain real estate described in the petition, for the marshalling of liens on said real estate, and for other relief.

In her petition, the plaintiff alleged in substance that on July 20, 1951, she obtained a judgment in the amount of $700 together with interest and costs against Bernard M. Hullinger in case number 40415 in the Common Pleas Court of Allen County; that, thereafter, by virtue of execution issued on said judgment on August 8, 1951, the sheriff of Allen county on August 10, 1951, made a levy on certain real estate described in the petition; that the defendants Cecelia Hullinger and The Central Building & Loan Company of Lima, Ohio, have or claim to have some interest in said real estate; that no part of the judgment in case number 40415 has been paid; and that said judgment and execution constitute a valid lien against said real estate.

The defendant Bernard M. Hullinger was duly served with summons, but did not file any answer therein.

The defendant Cecelia Hullinger filed her answer and cross-petition, in which she admitted plaintiff’s judgment in case number 40415, the execution issued thereon, the levy on the real estate described in the petition, her interest and that of The Central Building & Loan Company in said real estate, and denied generally each and every allegation in the petition not so admitted. She alleged further in substance that she is and since the 7th day of April 1944 has been the owner in fee simple of the real estate described in the petition; that she is not in any way indebted to the plaintiff ; that plaintiff has no valid claims, judgments, liens or executions against her or her real estate; and that further proceedings to sell said real estate upon execution would be to her irreparable injury. By way of relief, she prayed that plaintiff be restrained from proceeding further with said sale, that the levy of execution on said real estate be vacated and set aside, that plaintiff’s petition be dismissed, and for all other relief necessary and proper in the premises.

The defendant The Central Building & Loan Company filed its answer in which it set forth a certain note executed and delivered to it by the defendants Hullinger, as husband and wife; the amount due and owing on said note; the mortgage upon the real estate described in the petition, executed and delivered to it by said defendants to secure the payment of said note; the recording of said mortgage; and that said mortgage is the first and best lien on said premises. The prayer of its answer was that its lien be declared a first and best lien on the premises and that if a sale of said premises be ordered the said lien be attached to the proceeds of sale.

The plaintiff filed a reply to the answer and cross-petition of the defendant Cecelia Hullinger in which she alleged that “at the time the note described in the petition herein was executed the defendant, Bernard Hullinger, represented to the plaintiff that he was the owner of the real estate in the petition herein described,” and that “at the time plaintiff obtained-the judgment on said note, on July 20, 1951, said real estate appeared of record in the recorder’s office of Allen county, Ohio, in the name of the defendant Bernard Hullinger and on that date said judgment became a lien on said real estate.”

Upon the pleadings above mentioned, the cause was submitted to the court.

At the trial the parties stipulated that the mortgage of the defendant The Central Building & Loan Company was the first and best lien after taxes on the premises described in the petition.

The evidence introduced at the trial tended to prove the following facts:

The defendants Hullinger, husband and wife, purchased the real estate described in the petition from Homer Inskeep and Lulu Inskeep on land contract. The defendant Cecelia Hullinger made all the payments thereon under said contract, but it is not clear from the evidence as to whether she used her own funds in making such payments. On April 6, 1944, Homer Inskeep and Lulu Inskeep executed and delivered a warranty deed to Bernard M. Hullinger for said premises. This deed was left with Russell T. Graham, the secretary of The Central Building & Loan Company, who caused it to be duly filed for record in the office of the recorder of Allen county, Ohio, at 9:26 a. m. on April 7, 1944, the day following its execution. On the evening of April 6, 1944, Cecelia Hullinger argued with her husband, Bernard M. Hullinger, that she should have been grantee in the deed from the Inskeeps and after discussion it was then agreed by them that the husband, Bernard M. Hulling-er, should execute and deliver a deed to her for said premises. Pursuant to this agreement, the husband on the following day, April 7, 1944, did execute and deliver to her a deed conveying the premises to her. After delivery of the deed to her, Cecelia Hullinger left it at the Central Building & Loan Company with Graham, where it remained until July 31, 1951, when she procured it from Graham and filed it for record in the office of the recorder of Allen county, Ohio.

On or about the 24th day of March 1948 the plaintiff and the defendant Bernard M. Hullinger entered into a partnership for the purpose of carrying on and conducting a laundry business, each making contributions to the capital of said partnership. The defendant Bernard M. Hullinger on or about the 15th day of June 1948 purchased plaintiff’s interest in said partnership business at the price of $700, evidenced by the cognovit note of the defendant Bernard M. Hullinger payable to the order of plaintiff, upon which plaintiff on the 20th day of July 1951 procured the judgment against the defendant Bernard M. Hullinger.

Execution upon this judgment was issued on August 8, 1951, and levied upon the premises described in the petition on August 10,1951, as hereinbefore mentioned.

At the time this judgment was procured the premises described in the petition, upon which execution was subsequently levied, stood of record in the recorder’s office of said county in the name of Bernard M. Hullinger.

The execution on said judgment was issued and levied after the deed from Bernard M. Hullinger to Cecelia Hullinger had been filed for record as hereinbefore mentioned.

Plaintiff, at the time she entered into said partnership with the said Bernard M. Hullinger and prior to receiving said cognovit note representing the purchase price of her interest in said partnership, made an inquiry of Hullinger as to the ownership of said premises and was informed by him that he was the owner of the same. She also made inquiry of Graham, secretary of the Central Building & Loan Company, and was informed by Graham that said Bernard M. Hullinger was the owner of said premises.

Plaintiff did not examine or have any one else examine the deed records of said county to ascertain how the title of said premises stood of record.

It is not alleged in the petition herein that a certificate of judgment was filed in the office of the clerk of the Court of Common Pleas of Allen County, in which court the judgment was rendered on the cognovit note in question, in conformity with the provisions of Section 11656, General Code, and there is no evidence tending to prove that said certificate was filed.

At the conclusion of the trial, the court, among other things, found and adjudged:

1. That there is due the defendant, The Central Building & Loan Company, from the defendants, Bernard M. Hullinger and Cecelia Hullinger, on the promissory note set forth in its answer, $2,576.41, with 5 per cent interest per annum from October 31, 1951, and that the mortgage set forth in said answer is the first and best lien against the premises described in the petition, after taxes and assessments.

2. That there is due plaintiff from defendant, Bernard M. Hullinger, on her judgment $700 with 6 per cent interest per annum from July 20, 1951, together with costs in case number 40415 and costs herein, and that said judgment is the first and best lien on said premises after the mortgage of The Central Building 6 Loan Company.

3. That unless the defendants, Bernard M. Hullinger and Cecelia Hullinger, shall, within three days from the entry of the decree, pay or cause to be paid to the clerk of court the costs of this case and to the plaintiff and to The Central Building & Loan Company the sums so found due, with interest, the defendants’ equity of redemption be foreclosed and said real estate be sold and that an order of sale issue therefor to the sheriff of Allen county, directing him to appraise, advertise and sell said real estate as upon execution, and report his proceedings to the court for further order.

This is the judgment from which the defendant Cecelia Hullinger appealed. None of the other parties to the cause appealed.

Defendant, appellant, assigns error in two particulars :

“1. The verdict is contrary to law and the evidence.

“2. The verdict is not sustained by sufficient evidence. ’ ’

These assignments will be considered together.

Defendant’s general contention under her assignments of error is that the plaintiff did not, by virtue of the judgment procured by her on the cognovit note and the levy of execution on said judgment upon the premises described in the petition, acquire or establish any lien on the real estate conveyed to her by her husband, Bernard M. Hullinger, the deed for which was not filed for record until after said judgment had been rendered but before said execution was levied upon said real estate. The plaintiff does not otherwise question the validity of the judgment from which this appeal is taken.

Whatever lien the plaintiff may have on said real estate is wholly dependent upon whether said judgment or the levy of execution thereon had the legal effect of creating a lien in favor of the plaintiff upon said real estate.

In considering this question it must be kept in mind that “judgment liens are the creations of positive law, without which they cannot exist, and that they can not survive the law which gives them being, are principles too well settled to be drawn in question.” Lessee of Corwin v. Benham, 2 Ohio St., 36. See, also, Waldock v. Bedell, 59 Ohio App., 520, 18 N. E. (2d), 828.

What lien, if any, the plaintiff acquired on said real estate by virtue of her judgment without levy of execution, must be determined from the provisions of Section 11656, General Code, the pertinent part of which reads as follows:

‘ ‘ Any judgment or decree rendered by any court of general jurisdiction (including District Courts of the United States) within this state shall be a lien upon lands and tenements of each judgment debtor within any county of this state from the time when there shall have been filed in the office of the clerk of the Court of Common Pleas of such county a certificate of such judgment, setting forth the court in which the same was rendered, the title and number of the action, the names of the judgment creditor or creditors and judgment debtor or debtors, the amount of the judgment and costs, the rate of interest (if the judgment provides for interest), and the date from which such interest accrues, the date of rendition of the judgment and the volume and page of the journal entry thereof

The filing of the certificate in the manner and form prescribed is essential to the creation and establishment of a valid lien upon real estate without levy of execution and an averment of the fact of filing such certificate and the time of such filing is essential to the validity of any petition to enforce such a lien. See Waldock v. Bedell, supra, and the article by Herbert J. Hollander entitled, “Why Your Judgments May not be Liens, ” in 16 Ohio Opinions, 141.

Such fact, of course, must be proved in order to warrant relief on a petition to enforce a lien.

As the fact mentioned was neither pleaded nor proved in the instant case the plaintiff failed to establish any lien upon the real estate in question by virtue of her judgment.

' It seems odd that under the provisions of Section 11656, General Code, in order to perfect a lien of a judgment upon real estate located in the county in which the judgment is rendered it is necessary to file a certificate of judgment in the office of the clerk of the court in which the judgment is rendered, but it is clear that this was the intention of the Legislature, as prior to the amendment of said section, effective August 30, 1935, to read as it now reads, it did prescribe that “lands and tenements within the county where the judgment is entered shall be bound for its satisfaction from the day on which such judgment is rendered, ’ ’ which provision was eliminated by the amendment.

The amendment, however, does serve the useful purpose of requiring a special record to be made of all certificates of judgments operating as liens upon real estate.

We will next consider whether the levy of execution upon said real estate created a lien thereon. In considering this question, it must be remembered that the levy of execution was not made until after the deed conveying the real estate to defendant Cecelia Hullinger was filed for record.

It will also be noted that under the provisions of Section 11656-1, General Code, the lands and tenements of a judgment debtor shall be bound with a lien for the satisfaction of a judgment of a court of general jurisdiction within this state, without the filing of the certificate provided for by Section 11656, General Code, from the time when the same are seized in execution.

The judgment debtor in the instant case was the defendant Bernard M. Hullinger and not the defendant Cecelia Hullinger. The levy of execution was not made until after the deed vesting title to said real estate in Cecelia Hullinger was duly filed for record. Consequently, under the explicit terms of Section 11656-1, General Code, the levy of the execution made after the record title to said real estate was no longer in the name of the judgment debtor did not have the effect of binding said real estate for the payment of said judgment and did not create or constitute a lien thereon.

For the reasons mentioned, the plaintiff did not have any lien by way of judgment or by levy of execution on the real estate described in the petition, and that part of the judgment of the Common Pleas Court finding that plaintiff had a lien on said premises and providing for the enforcement thereof is contrary t© law, not being sustained by any evidence.

This cause was decided by the Common Pleas Court and was argued by the plaintiff, appellee in this court, upon the theory that the plaintiff by virtue of her judgment and the levy of execution thereon and her inquiries and the answers thereto with reference to the real estate described in the petition being the property of the defendant Bernard M. Hullinger made at and before the time she accepted the cognovit note of the defendant Bernard M. Hullinger, as representing the purchase price of her interest in the partnership of herself and the said Bernard M. Hullinger, stood in the position of a subsequent bona fide purchaser within the purview of Section 8543, General Code, and, therefore, through her judgment and levy of execution acquired a lien on said real estate.

Section 8543, General Code, reads as follows:

Section 8543 ‘ ‘ [Becording of deeds and instruments for the conveyance or incumbrance of lands]. All other deeds and instruments of writing for the conveyance or Incumbrance of lands, tenements, or hereditaments, executed agreeably to the provisions of this chapter, shall be recorded in the office of the recorder of the county in which the premises are situated, and until so recorded or filed for record, they shall be deemed fraudulent, so far as relates to a subsequent bona fide purchaser having, at the time of purchase, no knowledge of the existence of such former deed or instruments. ’ ’

Plaintiff cites the case of Micklethwait v. Fulton, Supt. of Banks, 129 Ohio St., 488, 196 N. E., 166, in support of her argument in this court.

An examination of the report of that case discloses that it does not in any way relate to or involve the interpretation or construction of Section 8543, General Code, and merely determines that:

“Where an owner of real estate executes a deed of conveyance, complete and absolute in form, and deposits same with a person of his own choice for delivery to grantee upon the death of the grantor, such deposit will be deemed to have been made at the grant- or’s own risk, as to innocent purchasers for value without notice and as to subsequent judgment creditors of grantee who have extended credit in reliance upon the latter’s record title to the property, if such deed is thereafter wrongfully recorded, and the conveyance will be deemed valid and absolute.”

That decision does not in any way support plaintiff’s argument and contention.

The interpretation to be placed upon Section 8543, General Code, was under consideration in the case of Dow v. Union National Bank, 87 Ohio St., 173, 100 N. E., 328, wherein it is held:

“Section 8543, General Code, provides the only consequences to follow a failure to file a deed for record, and such failure, unaccompanied by fraudulent representations or conduct by the grantee does not render the deed void as to subsequent creditors of the grantor who do not become purchasers.”

An inspection of the report of this case discloses that the action was one brought by the bank against husband and wife to set aside a deed of certain real estate from the husband to the wife and to subject same to the satisfaction of a judgment which the bank had recovered against the husband in June 1907 on a note executed by him to the bank on February 18,1907. The deed in question was dated October 23, 1901, and was filed for record on January 16,1907, approximately a month before the note was executed and delivered by the husband to the bank. The holding in that case, insofar as it applies to the rights of subsequent creditors, is, therefore, obiter dictum. However, the reasoning upon which the holding is based is clear and convincing and is.followed in the case of Small v. Gartner, 9 Ohio Law Abs., 330, the holding in which we approve as a correct statement of law. The holding is in conformity with the general rule in this state that a judgment creditor does not stand in the position of an innocent purchaser for value, and that such creditor gets only such interest as the judgment debtor has in the property. Davis v. First-Central Trust Co., 15 Ohio Law Abs., 3; Tousley v. Tousley, 5 Ohio St., 78.

Following and applying the decisions mentioned, we hold that the plaintiff does not occupy the position of a subsequent bona fide purchaser, having at the time of purchase no knowledge of the existence of a former deed, and does not have any lien on said real estate, and that the trial court erred in its findings to the contrary.

For the errors hereinbefore mentioned, the judgment of the Common Pleas Court in favor of the plaintiff and against the defendant Cecelia Hullinger is reversed, and as the relief afforded the defendant The Central Building & Loan Company in the judgment in its favor was predicated upon plaintiff having a lien on said premises and said premises being ordered sold to satisfy said lien, said judgment of said company against the defendants Cecelia Hullinger and Bernard M. Hullinger is also reversed; and this court, rendering the judgment the trial court should have rendered, renders final judgment in favor of the defendant Cecelia Hullinger against the plaintiff Rosemary Boerner, and dismisses plaintiff’s petition as against the said Cecelia Hullinger, and reverses said judgment of The Central Building & Loan Company against the defendants Cecelia Hullinger and Bernard M. Hullinger and dismisses, without prejudice, the cross-petition of said company; and this court adjudges further that the plaintiff pay all the costs of this case in the Common Pleas Court and in this court.

Judgment accordingly.

Middleton, P. J., and Younger, J., concur.


source: Caselaw Access Project

author: Hunsicker, P. J.

license: Public Domain

text:
    Emanuel, Appellant, v. Township of Twinsburg et al., Appellees.
    (No. 4128
    Decided December 24, 1952.)

      Messrs. Young & Brigleb and Messrs. Mots, Morris, Wilson & Quine, for appellant.

      Mr. Jerome W. Moss and Messrs. Buckingham, Doolittle & Burroughs, for appellees.
   Hunsicker, P. J.

The Township of Twinsburg, through its trustees, filed appropriation proceedings in the Common Pleas Court of Summit County, seeking to take, by such proceedings, certain land owned by Margaret D. Emanuel, the appellant herein. The purpose for which the land is being appropriated is stated to be to provide recreational facilities for the citizens of Twinsburg Township, and also as a memorial field.

The appellant, Margaret D. Emanuel, filed a petition to enjoin the township from prosecuting the appropriation proceedings.

A demurrer to the petition was filed by the township, and, after the sustaining of such demurrer, an amended petition was filed, to which a demurrer was also filed, on the ground that the amended petition did not state a cause of action. After the trial court sustained the demurrer to the amended petition, the plaintiff not desiring to plead further, the cause was dismissed. It is from the judgment sustaining the demurrer to the amended petition and dismissing the cause of action that an appeal on questions of law is before this court.

It is the claim of Margaret D. Emanuel that: (1) the township has no authority to appropriate property for the purpose stated; (2) there was no election by the electors of Twinsburg Township authorizing an appropriation of property for the purpose of erecting a memorial for soldiers and sailors; (3) the township has no funds available to pay for me Margaret D. Emanuel property.

The only question before this court is: Does the amended petition state a cause of action?

Section 3295, a part of Chapter 2 of Division II of Title XI of Part First of the General Code (concerning the powers and duties of township trustees), says:

“The trustees of any township in addition to other powers conferred by law shall have power to purchase, appropriate, construct, enlarge, improve, rebuild, repair, furnish and equip a township hall, a township park, bridges and viaducts over streets, streams, railroads or other places where an overhead roadway or footway is necessary, and sites for any of the same.”

Section 3244, General Code, says in part:

“Each civil township lawfully laid off and designated, is declared to be, and is hereby constituted, a body politic and corporate, for the purpose of enjoying and exercising the rights and privileges conferred upon it by law. It shall be capable of suing and being sued, pleading and being impleaded, and of receiving and holding real estate by devise or deed, or personal property for the benefit of the township for any useful purpose. ’ ’

We do not find the word “park” defined in the statutes, but the common meaning given to this word is a parcel of land set apart and maintained for public use as a place that is a pleasure to see, and which affords an opportunity for recreation in the open air.

We do not believe that it is necessary to specifically use the word “park” wheré terms sufficient to embrace the common meaning of the word are used in the appropriation proceedings.

The courts are not concerned with the reasons why Twinsburg Township desired to establish a park at this place or at this time.

“4. The necessity for and extent of property to be taken by eminent domain are questions for legislative determination, and, in the absence of fraud, bad faith or abuse of discretion, such determination will not be disturbed by the courts.” Shepard Paint Co. v. Board of Trustees of Franklin County Veterans Memorial, 88 Ohio App., 319, 100 N. E. (2d), 248.

It is to be noted that the statute (Section 3295, General Code) does not call for the holding of an election, and does not require that a certificate of the fiscal agent be filed, stating that the funds are on hand to pay the amount found to be due the owner of the property.

Questions regarding the power of eminent domain have been before the courts many times. It is defined as “the power of a soverign state to take, or to authorize the taking, of private property for the public use without the owner’s consent.” 15 Ohio Jurisprudence, Eminent Domain, Section 2, and cases there cited.

An examination of the authorities in this state and other jurisdictions in the United States discloses that the right of eminent domain, in so far as the state and federal governments are concerned, is limited, not conferred by, the constitution. The power of eminent domain does not exist in any subordinate political division, such as a township, unless granted by the sovereign power. Giesy v. Cincinnati, Wilmington & Zanesville Rd. Co., 4 Ohio St., 308; Sinnickson v. Johnson, 17 N. J. Law, 129, at p. 145, 34 Am. Dec., 184; Great Western Natural Gas & Oil Co. v. Hawkins, 30 Ind. App., 557, at p. 565, 66 N. E., 765; Lazarus v. Morris, 212 Pa. St., 128, at p. 130, 61 A., 815; Stearns v. City of Barre, 73 Vt., 281, 50 A., 1086, 58 L. R. A., 240, 87 Am. St. Rep., 721.

In this state, however, the state of Ohio, as a sovereign power, through its Legislature, has granted to townships the naked power of eminent domain as indicated supra (Section 3295, General Code).

No claim is made that injunction is not the proper remedy herein, and we think it is well established that a separate suit for injunction will lie to prevent the taking of private property, where it is claimed that the appropriating authority is acting unlawfully P., C., C. & St. L. Ry. Co. v. City of Greenville, 69 Ohio St., 487, 69 N. E., 976; Cleveland & Pittsburgh Rd. Co. v. City of Martins Ferry, 92 Ohio St., 157, 110 N. E., 642; State, ex rel. MacDiarmid, v. Eastman, Judge, 118 Ohio St., 121, at p. 128, 160 N. E., 626.

It is contended in this appeal that, since no mode of procedure is outlined in Section 3295, General Code, it is a naked grant of power which cannot be exercised in the manner adopted by the township. To this problem, we direct our attention.

It is well settled in this state that the constitutional protection of the rights of private property requires that the power of eminent domain granted by the Legislature must be followed with reasonable strictness, and that all the prescribed conditions in such grant of power must be performed. Anderson v. Commrs. of Hamilton County, 12 Ohio St., 635, at p. 642; Pontiac Improvement Co. v. Bd. of Commrs. of Cleveland Metropolitan Park Dist., 104 Ohio St., 447, 135 N. E., 635, 23 A. L. R., 866; Emery v. City of Toledo, 121 Ohio St., 257, at p. 263, 167 N. E., 889; Kohl et al., Exrs., v. United States, 91 U. S., 367, 23 L. Ed., 449.

The statute under which these proceedings were brought does not indicate how the action shall be instituted and conducted to accomplish the purpose sought.

We have been referred to the case of Kohl et al., Exrs., v. United States, supra, as authority for the proposition that, even though no procedure is outlined in. the statute granting the power to appropriate, nevertheless it is possible to allow such proceedings to be instituted under the statutes giving general judicial power to the trial courts. It should be noted, however, that in that case it was the sovereign which was exercising the power, while in the instant case the power is delegated to a political subdivision.

It should be stated here that there are no general appropriation or condemnation statutes in Ohio. Section 11091, General Code, a part of the appropriation of property provisions of the Probate Code, says that such procedure shall not apply when a township desires to appropriate private property.

“The right of eminent domain is an attribute of sovereignty, and only the sovereign power, or one to whom it has delegated the right, can take property without the consent of the owner, and when this right has been granted to a subdivision of the state, a person or a corporation the terms of the grant must be strictly pursued. When the matter is in doubt it must be resolved in favor of the property owner. These principles are firmly established.” Pontiac Improvement Co. v. Bd. of Commrs. of Cleveland Metropolitan Park Dist., supra, at p. 454.

“* * * for it is not unreasonable that the property owner should have the right to insist that the State, which selects the occasion, and prescribes the conditions for the appropriation of his property, should confine its action strictly within the limits which it has marked out as sufficient. So high a prerogative as that of divesting one’s estate against his will should only be exercised where the plain letter of the law permits it, and under a careful observance of the formalities prescribed for the owner’s protection.” 2 Cooley’s Constitutional Limitations (Eighth Ed.), p. 1124.

There is in the instant case a naked authority to appropriate land. There is no procedure designated by this statute (Section 3295, General Code) by which the landowner’s rights are to be protected, and hence the general requirement of the law that the proceedings to appropriate shall be strictly pursued are of no effect, since no procedure for the taking of property is set out in such statute.

The general law is clear that, where the power is conferred on a political subdivision, the proceedings must be followed as the Legislature or conferring power requires. Harbeck v. City of Toledo, 11 Ohio St., 219; Roosevelt Hotel Bldg. Co. v. City of Cleveland, 25 Ohio App., 53, 155 N. E., 233; 29 Corpus Juris Secundum, Eminent Domain, Section 216, and authorities there cited.

The authority to appropriate, granted by the statute, cannot be said to be self-executing, for it does not supply a mode of procedure by means of which the right given may be enjoyed or the duty imposed may be enforced. It cannot be said to be self-executing when it merely states the right without laying down rules by means of which proper machinery for its exercise can be set in motion.

A self-executing provision has been defined as ‘ ‘ one which supplies the rule or means by which the right given may be enforced or protected or by which a duty enjoined may be performed.” Stange v. City of Cleveland, 94 Ohio St., 377, at p. 380, 114 N. E., 261. See, also, Taylor v. City of Cleveland, 87 Ohio App., 132, 93 N. E. (2d), 594.

The cases wherein self-executing matters are discussed are usually confined to constitutional or city charter provisions, but we see no reason why the rule in such cases should not apply to naked grants of power by legislative enactment which are inoperative because of a lack of procedural requirements.

Although we find no cases in Ohio covering the specific problem involved in the instant case, ■ some cases in other jurisdictions are helpful in solving the question. In the case of Lone Star Gas Co. v. City of Fort Worth, 128 Texas, 392, at p. 399, 109 A. L. R., 374, at p. 379, 98 S. W. (2d), 799, at p. 802, the court said:

“There are a multitude of cases holding that proceedings under a statute giving the right of eminent domain, but providing no compensation for the property taken, are void and may be enjoined. Exactly the same situation is present, so we think, when no adequate and appropriate procedure is established pro viding the mode and manner of ascertaining the amount of compensation * * (Emphasis ours.)

And in Watauga Water Co. v. Scott, 111 Tenn., 321, at p. 326, 76 S. W., 888, at p. 889, the court said:

“It is a fundamental principle of the law of eminent domain, and the taking of property for public use, that it can only be done by making just compensation to the person whose property is taken, for its reasonable value; and any legislation which confers the right of eminent domain can only be valid upon condition that such compensation is provided for, and the mode and manner of ascertaining and enforcing the same is fixed and established. ’ ’ (Emphasis ours.)

The right to appropriate in the instant case under Section 3295, General Code, is a naked right, and is incapable of enforcement until the nature of the proceedings to enforce such right is granted by further legislative enactment.

For the reasons stated herein, we believe that a good cause of action is stated in the petition, and the demurrer should have been overruled.

Judgment reversed, and the cause remanded for further proceedings.

Judgment reversed.

Doyle and Stevens, JJ., concur.


author: Griffith, J.

text:
    Village of Eastlake, Appellant, v. Davis, Appellee.
    (No. 510
    Decided May 3, 1952.)

      Mr. Wayne E. Davis, in propria personna.

      Mr. George J. Heil, for appellant.
   Griffith, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court sustaining a demurrer to plaintiff’s petition. The plaintiff choosing not to plead further, judgment was rendered in favor of defendant.

The village of Eastlake became a municipal corporation on September 9, 1948, it being a part of the area formerly included in Willoughby township. The defendant was employed as solicitor for the village during the period beginning January 24, 1949, and ending October 20,1950.

There was no agreement between the village and the defendant for compensation except the resolutions of employment which provided for payment of the sum of $1,800 per year, additional compensation in connection with the issuance and sale of bonds and notes, appearances before the mayor’s court in excess of four cases at the rate of $15 per case, and such compensation as is approved by the council of the village for services rendered before any other court, board, body, or commission during the term of defendant ’s employment.

The' defendant acted as attorney for the village before the Probate Court in the matter of the division of funds and assets between the township and the village under the provisions of Section 3544, General Code.

On February 7, 1951, he presented a statement of services rendered to the village council, which was rejected on March 26, 1951. The defendant then filed a notice of lien in the Probate Court on the judgment in favor of plaintiff in the sum of $11,001.50. The plaintiff village thereupon filed a petition in the Common Pleas Court praying for cancellation and removal of such lien.

A demurrer to this petition was filed by the defendant on the following grounds:

1. That the Common Pleas Court had no jurisdiction over the subject of the action.

2. That no cause of action was stated.

Does the Common Pleas Court have general equity jurisdiction to order cancellation of a lien for attorney’s fees filed against a fund resulting from a judgment in the Probate Court arising out of a division of township assets between the township and the village, such judgment having been rendered under authority of Section 3544, General Code?

The defendant contends that only the Probate Court has jurisdiction to determine the matters in issue. Section 10501-53, General Code, grants full equity powers to the Probate Court. This section provides, in part:

“The Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute.”

What was the matter “properly before the [Probate] Court”? It was the question of the division of the funds and assets of the township. That court was limited to determining the division and to making an order after the division had been determined. The Probate Court had no continuing control over those funds or over the matter of the division of assets. When it made its order of division, its jurisdiction ended. The matter before the Probate Court was the division of funds, and, as to that matter, that court had exclusive jurisdiction.

There was no matter other than that before the Probate Court, and when it made the order of division, its task was finished. The defendant was not acting as attorney for a fiduciary who was' under the jurisdiction of the Probate Court. He was acting for the village under a contract with that village.

The village council, by resolutions, provided for the payment to the defendant for his services, and the defendant acted pursuant to the same. He was aware that for his services the contract provided:

“Such compensation as is approved by council of said village for services before any other court.”

These resolutions of council, if they comprise the necessary elements, acted upon by the defendant, are contracts between the village and the solicitor and binding on each. Wuebker v. Hopkins, 29 Ohio App., 386, 163 N. E., 566.

It is upon this contract that the defendant must rely for recovery. He contends that the village cannot accept the fruits of his skill and efforts and then arbitrarily deny payment. The village accepted the services, but it did so under the terms of resolutions that it had passed, and this legislation was enacted before the commencement of the defendant’s work.

The resolutions of employment do not fix the compensation. The compensation has never been fixed because of the clause: ‘ ‘ Such compensation as is approved by council of said village. ’ ’

The defendant must rely upon this clause in the resolutions of council if he is to recover. He was cognizant of and familiar with this provision in the resolution. This provision is not actually a contract at all but constitutes an indication on the part of the village council that the defendant will be permitted to do additional work before other courts or bodies when necessary, at which time council will fix the extra allowance by an independent resolution.

It amounts to nothing more than a declaration to enter into a binding contract in the future if the need arises, the amount of compensation to be determined and approved by that legislative body.

There can be no recovery against a municipality of this state for a claim on a quantum meruit basis. 28 Ohio Jurisprudence, 924, Section 575.

There has been no implied municipal liability in matters ex contractu in this state since the passage of the act of April 6, 1876. See the second paragraph of the syllabus in the case of City of Wellston v. Morgan, 65 Ohio St., 219, 62 N. E., 127.

A village cannot be made liable as can private parties in relations quasi ex contractu. No liability attaches to a village where the plaintiff seeks to hold the corporation liable in quantum meruit or on an implied contract. Buchanan Bridge Co. v. Campbell. et al., Commrs., 60 Ohio St., 406, 54 N. E., 372; Frisbie Co. v. City of East Cleveland, 98 Ohio St., 266, 120 N. E., 309; McCormick v. City of Niles, 81 Ohio St., 246, 90 N. E., 803, 27 L. R. A. (N. S.), 1117; Hommel & Co. v. Village of Woodsfield, 115 Ohio St., 675, 155 N. E., 386; Village of Beachwood v. Ohio Casualty Ins. Co., 47 Ohio App., 212, 191 N. E., 797.

We, therefore, conclude that the Common Pleas Court of Lake County does have jurisdiction of the subject matter of plaintiff’s action; that the petition states a good cause of action; that the Probate Court has no jurisdiction to pass upon the defendant’s claim for compensation; and that the Common Pleas Court erred in sustaining the demurrer of the defendant.

Therefore, the judgment is reversed and the cause remanded to the Common Pleas Court with instructions to overrule the demurrer and for further proceeding according to law.

Judgment reversed.

Nichols, P. J., and Phillips, J., concur.


author: Hildebrant, P. J.

text:
    Cornell, Admr., Bureau of Unemployment Compensation, Appellant, v. Schroeder et al., Appellees.
    (No. 7654
    Decided November 24, 1952.)

      Mr. C. William 0‘ Neill, attorney general, and Mr. William A. Banks, Jr., for appellant.

      Mr. Gordon R. Scherer, for appellee Irma Schroeder.

      Mr. C. William O’Neill, attorney general and Mr. John W. Hardwick, for appellee Board of Review.
   Hildebrant, P. J.

This is an appeal on questions of law in an unemployment compensation case, wherein the entry in the Common Pleas Court recites, “that the decision of the referee and board of review that claimant was not unavailable for work and thereby reversing the decision of the administrator was not unlawful, unreasonable or against the manifest weight of the evidence and should be affirmed.”

While it is disputed that claimant became unemployed by reason of dismissal or by reason of having “quit dissatisfied,” the record shows employment from March 3, 1948, to February 21, 1950, the date of separation. The claim for compensation was filed on February 23, 1950.

Thereafter, claimant entered Littleford-Nelson business school on March 15, 1950, as a day student, completing the full course on June 22, 1950.

On the issue of availability for work, the finding of the administrator was as follows:

“Claimant was not available for suitable work during the weeks ending March 18 (No. 11), 1950, through June 22 (No. 25), 1950. Benefit rights for such weeks are hereby disallowed.

• “Allow weeks No. 26, if otherwise valid.”

On appeal, the decision of the referee in effect affirmed by the refusal of the board of review to grant to the administrator further appeal, was:

“Issue: Validity of additional claim (availability for work).

“Law applicable: Section 1345-6-2 (4) & (5) of the Ohio General Code.

“Under the above cited law, the administrator held ‘ that claimant was not available for suitable work during the weeks ending March 18 (No. 11), 1950, through June 22 (No. 25), 1950. Benefit rights for such weeks are thereby disallowed.’ The referee, from the evidence available, is unable to join the administrator in this finding. Claimant made every reasonable effort to find work. Her only reason for attending school was to do so either during the day or night so as to establish herself as more readily assimilatible within the employment market as an accepted employee. The numerous firms contacted resulting in her eventual employment, establishes her availability for work— employability is evidenced by her gaining work on October 3, 1950, through her own efforts.

“There is some question as to the applicability of Ohio General Code 1345-6 d (6) to the instant case. However, in the light of liberal interpretation recently established by the board through appeals docket No. 112937, in re claim of Ellis Thayer Shaffer, as rendered on March 2, 1951, the referee feels that no disqualification should be made under this section of the Ohio General Code. It being fully established that claimant is sufficiently available for work as required under Ohio General Code 1345-6 a (4) and (5) benefit rights will be granted claimant for the period of March 18 (No. 11), 1950, through June 22 (No. 25), 1950, if otherwise eligible. The initial determination of additional claim dated August 25, 1950, is accordingly reversed.”

It was the above determination which the Common Pleas Court found not unlawful, unreasonable or against the manifest weight of the evidence, and which was, by its judgment, affirmed.

There is substantial evidence to support the factual recital contained in the brief of appellee, that:

“The following are the facts as determined by the referee.

“Claimant has only recently entered the employment market. At the age of fifty-three she has found this to be difficult. To improve herself, she has sought additional office training with the Littleford Nelson business school. This institution informed her that she could progress with greater speed by taking their day course from 9:00 a. m. to 3:30 p. m. daily. She entered such a course on March 15, and completed it on June 22, 1950. At the time of her registration, it was thoroughly understood that she would be permitted to investigate any potential employment available and further that the school would gladly change her hours of schooling to coordinate with any employment obtainable, i. e., she would be permitted to attend night school if she were able to gain day time employment.

“During claimant’s attendance of day school, she constantly investigated potential employment. The plants contacted were the Interchemical Company, U. S. Playing Card Company, the new Ford Plant, Crosley Corporation, Procter & Gamble, Electric Auto Lite, and other prospective employers. After graduation, claimant continued her search for work and was eventually employed on October 3, 1950, with the Westinghouse Supply Company in Cincinnati. She was still employed with this firm on March 13, 1951, the date of the referee hearing.”

Claimant’s enrollment in the business school inevitably affected her freedom of effort to find suitable employment, reflecting adversely on whether or not she was reasonably available for work under the statute, and this court is critical of the finding of the referee that she was sufficiently available under the statute.

However, while we probably would have reached a different conclusion on availability, we are unwilling to say that the determination of the referee is so manifestly against the weight of the evidence as to require a reversal on that ground.

Section 1345-6 d (6), General Code, provides that no benefits may be paid to a person who “has left his most recent work for the purpose of attending an established educational institution, or if he is a student regularly attending an established educational institution during the school term or customary vacation periods within the school term.”

The referee refused to recognize the applicability of that section to this record, largely on the ground that the settled policy of a liberal construction of the act justified a refusal of disqualification under the section.

This we find to be error, and quote with approval from case No. 174325, Rafferty v. Bureau of Unemployment Compensation, 6 Commerce Clearing House, Unemployment Insurance Reporter, 38576, Paragraph 8267, as follows:

“Section 1345-6 d (6) Ohio General Code, is very definite and unambiguous, and though this court can see no reason why such a penalty should be attached to a desire for education, yet as long as the statute is there the court cannot judicially amend the law nor change its meaning when that statute is susceptible of only one interpretation.”

The judgment is, therefore, reversed, and final judgment is rendered herein in favor of the administrator.

Judgment reversed.

Hildebrant, P. J., and Matthews, J., concur.


author: Phillips, J.

text:
    Hoffman, Appellant, v. Powell, Appellee.
    (No. 1265
    Decided March 7, 1952.)

      Mr. Arthur Palmer and Messrs. Stump, Wardlaw & Mitchell, for appellant.

      Mr. William Marshall and Messrs. Guarnieri & Se-crest, for appellee.
   Phillips, J.

In this opinion Blanche Hoffman, plaintiff, appellant, and her deceased husband, Harry P. Hoffman, will be called plaintiff and decedent respectively; defendant Powell will be designated as defendant; and the Industrial Commission of Ohio will be referred to as the commission.

On November 2,1946, and for some time prior thereto, decedent had been and was employed regularly on the afternoon shift as a watchman by the Falls Steel & Tube Company of Newton Falls,- Trumbull county, Ohio.

During the morning of that day, and for some time prior thereto, he was doing and had done odd jobs for defendant, who conducted a grocery store and meat market in Newton Falls, Ohio, where he employed two admittedly regular employees, and where defendant and his wife worked regularly also.

While erecting storm windows for defendant on November 2, 1946, in an apartment situated over defendant’s grocery store, decedent was injured, as a result of which there is evidence he developed personality changes, which in turn caused him to take' his own life.

On rehearing of plaintiff’s claim for allowance of compensation had before the Industrial Commission, where the necessary procedural steps had been taken, the commission denied plaintiff’s claim on the ground “that decedent was not an employee of the within named employer on November 2, 1946, within the meaning of the Workmen’s Compensation Act of Ohio; that the decedent’s death was not a result of nor related to an injury sustained in the course of and arising out of his employment.”

On hearing had before the Court of Common Pleas on plaintiff’s appeal from the denial of her claim by the commission, the trial judge directed the jury to return a verdict for defendant upon the conclusion of the introduction of plaintiff’s evidence, entered judgment accordingly, and overruled plaintiff’s motion for a new trial.

Plaintiff appealed to this court on questions of law from the final judgment of the trial court, and contends by assignments of error:

‘ ‘ 1. The court erred as a matter of law in directing said verdict.

“2. Said verdict is against the weight of the evidence.

‘ ‘ 3’. Said verdict is contrary to law.

“4. For other matters of law and evidence appearing on the record. ’ ’

Plaintiff contends that, while admittedly' decedent did not work regular hours each morning, he worked for defendant each morning regularly over an extended period of the time he was employed by the Falls Steel & Tube Company, for which employment defendant paid him; that, while admittedly he did not work at one task, yet he did miscellaneous maintenance work essential to maintaining defendant’s place of business and apartment and as occasion arose in the store; that, accordingly, he was a regular employee of defendant employed regularly in his business; that by reason of such employment defendant employed three or more workmen, or operatives, regularly in and about his business, and that, therefore, defendant was amenable to the provisions of the Workmen’s Compensation Act of Ohio, and plaintiff was entitled to the benefits of the act.

Plaintiff contends further that in directing the verdict to which reference has been made the trial judge recognized that plaintiff introduced sufficient evidence to require a submission to the jury of the issue of - whether decedent’s death resulted from the admitted injury he received on November 2, 1946; and, that since defendant had two admitted regular employees on November 2, 1946, if the evidence shows decedent was an employee of defendant on that day and regularly prior thereto he was the employer of three employees as provided in the Workmen’s Compensation Act of Ohio, and as such amenable to the provisions thereof.

Defendant contends that he employed regularly only two employees; that his wife was not an employee but his partner; that, accordingly, he was not amenable to the Workmen’s Compensation Act of Ohio; and that any work decedent did for him he did as an independent contractor.

On rehearing the parties stipulated and agreed:

£ £ That there are four issues to be determined in this claim, to wit: 1. WTiether or not the alleged employer, Paul Powell, doing business as Powell’s Market, was an employer of labor within the state of Ohio, and as such amenable to the Workmen’s Compensation Act of said state by employing three or more persons in the regular course of his business, as defined in Section 1465-60 of the Ohio General Code. 2. Whether or not the decedent Harry Hoffman, was an employee in the regular course of business of Paul Powell, doing business as Powell’s Market, as defined by Section 1465-60 of the Ohio General Code. 3. Whether or not the decedent, Harry Hoffman, suffered an injury which was sustained in the course of and arising out of his employment as an employee of Paul Powell, doing business as Powell’s Market. 4. If it be determined that the decedent, Harry Hoffman, sustained such an injury in the course of and arising out of his employment, then was or was not such injury oausally related to the death of the decedent, Harry Hoffman.”

Notwithstanding such stipulation plaintiff contends by brief that “the only real issue is whether or not there is some evidence in the testimony offered by plaintiff from which the jury might infer that the decedent, Harry P. Hoffman, was an employee of the defendant at the time he fell, within the meaning of that term as used in Sections 1465-60 and 1465-61 of the General Code of Ohio, being that part of the workmen’s compensation laws of the state of Ohio referring to issues of coverage and amenability.”

A careful review of the evidence submitted to us for review compels us to arrive at the conclusion reached by the trial judge with reference to the first three issues stated in the stipulation, and that stated by plaintiff, supra, which precludes the necessity of our determining the fourth issue stated in such stipulation.

Obviously, we find no error prejudicial to plaintiff in any of the respects urged in her assigned grounds of error upon which we pass.

Appellant’s counsel has failed to call our attention to “other matters of law and evidence appearing on the record,” as alleged as a ground of error, or to comply in respect thereto with the provisions of Rule VII of this court that his brief ‘ ‘ shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly, we will not pass upon this assigned ground of error.

The judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Griffith, J., concurs.

Nichols, P. J., concurs in the judgment.


author: Matthews, J.

text:
    Kinkey, Appellee, v. Maxon, Appellant.
    (No. 7628
    Decided November 17, 1952.)

      Mr. Charles M. Gowdy, for appellee.

      Messrs. Steer, Strauss & Adair and Mr. Charles H. Tobias, Jr., for appellant.
   Matthews, J.

This is an appeal on questions of law from a judgment entered on a verdict for the plaintiff.

The plaintiff alleged two causes of action in his petition. The first cause of action was upon an account for work done and materials furnished in the remodeling of defendant’s dwelling. The second cause of action was for the foreclosure of a mechanic’s lien perfected by the plaintiff to secure the payment of his claim.

The defendant, by her amended answer and cross-petition, denied generally the allegations of plaintiff’s first cause of action and specifically denied that she was indebted to the plaintiff in any amount. No affirmative defense was alleged.

In her cross-petition, the defendant set forth that she and the plaintiff had entered into three express contracts whereby plaintiff agreed to do the work and furnish the materials alleged in his first cause of action for the total sum of $C,050, said work and materials to be fully performed and furnished not later than November 15,1950. These contracts were alleged to have been made on September 1, 1950, and on or about September 15,1950. The defendant alleged that the plaintiff had not performed his contract and that she had paid him a total sum of $4,119.80, the last payment being for $1,000, “which was paid by said defendant and received by plaintiff in full satisfaction of all wmrk performed or to be performed by him under said contracts.”

The defendant, in her cross-petition, set forth the respects in which the plaintiff allegedly failed to perform the contracts, his delay in performing, and the damage resulting to her, amounting to $968.22.

We shall consider the errors assigned in the order in which they are presented in the appellant’s brief.

(1) Defendant requested the trial court to give a special charge before argument based on the premise that there was substantial evidence of an express contract to do certain remodeling for $2,000, and upon this premise sought to have the court instruct the jury that “if you further find that this contract was never abandoned by mutual consent of the parties; and if you further find that the total of $2,000 plus the reasonable value of any additional work performed by Mr. Kinkey and not within the agreement, does not exceed what Mrs. Maxon has already paid to Mr. Kinkey, then you should render a verdict for the defendant. ’ ’

The court refused to give this charge, and we think properly so. It is fundamental that a charge must be predicated upon some theory of the facts supported by substantial evidence.

On the subject of the express contract to pay $2,000 for certain specific items of work and material, we fail to find any substantial evidence. There is evidence that the plaintiff submitted a written offer to make certain alterations for $2,000, but the evidence is clear that the defendant rejected the offer. There is no evidence that the minds of the parties ever met on this subject. The only probative effect of the evidence of the negotiations of the parties on this subject was as an admission on the part of the plaintiff as to the reasonable cost of the remodeling covered by his offer.

(2) The defendant requested a second special charge applicable to her cross-petition which incorporated the same provision relating to the finding of an express contract to do certain remodeling for $2,000. The reason for refusing the first charge is equally applicable to this charge.

We are advised by defendant’s counsel that the trial court refused this charge because ‘ it believed that the evidence precluded a jury finding of a continually subsisting contract.” We concur with that opinion. Our analysis of the evidence has led us to the conclusion that there is no substantial evidence of such an agreement.

(3) Counsel urge that the trial court was inconsistent in refusing to give special charge No. 2 and then submitting to the jury the issues raised by the cross-petition and the answer thereto. It seems to us that a sufficient answer to that contention is that the contract, the existence of which was submitted to the jury, was not the same contract that was set forth in the refused special charges. There was some evidence of an agreement as to the time for completion of the work and there was some evidence of a failure to complete some work upon which the plaintiff had started and which remained unfinished. To that extent there was evidence of a breach on plaintiff’s part, justifying the submission to the jury of the issues raised by the cross-petition. But the court did not submit to the jury the question of whether a contract existed to do the remodeling for $2,000, and for the very good reason, as we find, that there was no substantial evidence of its existence.

(4) Next, it is urged that the court should have submitted an issue of accord and satisfaction to the jury with an instruction on the law relating to that issue.

It should be observed that the defendant did not plead an accord and satisfaction as a defense to the first cause of action. As a defense to the second cause of action (which is the action to foreclose the mechanic’s lien), the defendant alleged the existence of special contracts to do the remodeling and alleged also the payments she had made ending with the last payment which she alleged “was paid by said defendant, and received by plaintiff in full satisfaction of all work performed or to be performed by him under said contract.” It would seem that inasmuch as there was no substantial evidence of work done under a special contract, a plea of accord and satisfaction would present an impossibility. And such a defense to an alleged but unproven special contract could not be transferred to an action for the reasonable value of services and material performed and furnished, in the absence of an express contract on the subject of compensation.

Furthermore, we find no substantial evidence of an accord and satisfaction. It is true that the defendant on cross-examination testified that at the time she made the payment of $1,000 she intended to say: “This $1,000 is going to pay you in full.” But that is not a statement that she actually said that, nor is it equivalent to a statement that she would pay the $1,000 only on condition that it would be accepted in full settlement. The testimony of the defendant is: “You see, I felt he overcharged me so terribly and I felt so all along, and I said ‘No, Mr. Kinkey this thousand dollars is it.’ Then he argued and argued, and argued. And I said, ‘I’ll tell you what I will do just to stop this argument, if you will finish up everything spick and span, not the other $400, if you will finish everything, hang these doors, do all this work’ — that I paid Mr. Yockey — ‘I’ll give you $500.’ He said, ‘I’ll think about it.’ ” After that, according to her testimony, they continued to discuss the completion of the remodeling and the additional cost.

In Winkler v. City of Columbus, 149 Ohio St., 39 (77 N. E. [2d], 461), the Supreme Court said at page 44, “where the testimony involved is that of the plaintiff and the plaintiff’s testimony whether in chief or cross-examination, discloses negligence on the part of plaintiff contributing directly to her injuries the fact has been settled and the matter becomes a question of law to be determined by the court.

That principle is applicable to the testimony of all parties to all classes of cases.

There is no evidence relating to the time, place, or circumstances of the actual delivery of the check. There was no recital on the check that it was in full payment. There is no evidence that the defendant informed the plaintiff at the time that he could take the check only on condition that it would be in full payment. There is no evidence that the plaintiff or defendant agreed to a complete settlement. On this state of the evidence, the court would not have been justified in submitting the issue of accord and satisfaction to the jury. In 1 American Jurisprudence, 260, 261, Section 77, the undoubted rule is stated that accord and satisfaction is an affirmative defense, the burden of proving which rests upon the party relying upon it, and that is followed by the statement: “Moreover, the view has been accepted that proof of the foregoing elements of accord and satisfaction must be clear. So it is that the proof must be clear as to the making an acceptance of the condition that a sum offered in payment of an unliquidated claim should be accepted in full settlement thereof.” Applying this rule to the tender of a check, it is said in the same volume, at page 223, Section 22, that “in order that the acceptance of the check or remittance shall operate as a full discharge, the condition that it is to be accepted in full satisfaction of the pending claim or obligation must be expressly made or the circumstances must be such as to indicate clearly to the creditor that it is so sent.”

In Pitts v. National Independent Fisheries Co. (71 Colo., 316, 206 P., 571), 34 A. L. R., 1033, at 1035, the court says:

“In order to constitute an accord and satisfaction, it is necessary that the money should be offered in full satisfaction of the demand, and be accompanied by such acts and declarations as amount to a condition that the money, if accepted, is accepted in satisfaction; and it must be such that the party to whom it is offered is bound to understand therefrom that, if he takes it, he takes it subject to such conditions.”

When this test is applied to the defendant’s testimony, it lacks any substantial tendency to prove that the plaintiff would understand that if he used the check he would be foreclosed thereby from asserting that a balance was due him.

That no accord was intended or effected is clear from the defendant’s position in this case. By her cross-petition, she is seeking damages for various breaches of the contracts, which she claims were fully extinguished by an accord and satisfaction. If plaintiff ’s claim was extinguished by an accord, the discharge of his obligation was the only conceivable consideration. Her cross-petition placed her in the position of saying that the work done and materials furnished were not reasonably worth the amount she had paid and of asking a judgment for the difference. That is entirely inconsistent with the existence of an accord and satisfaction of the dispute as to the amount due to the plaintiff.

There is another reason that precludes defendant from prevailing upon this assignment of error. As already noted, the only allegations as to this subject prior to the motion for a new trial are found in defendant’s combination of defense of payment and denial to the second cause of action. It was placed in the middle of a three-page explanation of the details of the transaction between these parties. It was not pleaded as a defense to the first cause of action, and at no place was it denominated as an accord and satisfaction.

Under such circumstances, it seems to us that if the defendant intended to rely upon the defense of accord and satisfaction, the duty rested upon her to specifically call the matter to the attention of the court. In the absence of some notice or request, if failure to submit the issue of accord and satisfaction to the jury and instruct upon it is an error, it must be placed in the category of invited error, which an appellant may not invoke. 2 Ohio Jurisprudence, 956, Section 552.

(5) It is assigned as error that in instruction and in submitting forms of verdicts the court made no provision for the contingency of a finding that neither was entitled to recover — in other words for a finding for the defendant on the plaintiff’s petition, and for the plaintiff on the defendant’s cross-petition. At .the close of the charge, defendant’s counsel stated to the court: “It seems to me that you didn’t quite make it clear to them what verdict they should render if they found for the plaintiff on the petition and for the defendant on the cross-petition.” The court responded: “I said if they found for both of them then they would have to put in the difference between them.” That ended the colloquy. The court had so instructed the jury. No request for further instruction was made.

The most that can be said of this incident is that it was an omission to charge and not an affirmative error in the charge.

(6) Counsel also urge that the court erred in that part of its charge in which it instructed the jury as to the contingency upon which the defendant would or would not be entitled to a verdict on her cross-petition. We find no error in the charge prejudicial to the defendant.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Hildebrant, P. J., concurs.


author: Per Curiam.

text:
    In re Touchman.
    (No. 472
    Decided March 27, 1953.)

      Messrs. Spidel, Staley & Hole, for appellant.

      Mr. C. William O’Neill, attorney general, and Mr. George F. Patterson, Jr., for appellee.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Miami County, affirming an order of the home inspection section, Division of Aid for the Aged, Department of Public Welfare, denying the application of Opal Touchman for renewal of a license to operate a rest home.

The Department of Public Welfare referred the matter to a referee, who held an extended hearing. The referee found that the appellant violated nine separate rules and regulations established for the purpose of regulating the operation of rest homes. Upon the recommendation of the referee, the department denied the application for renewal. Upon appeal to the Common Pleas Court, the order of the department was affirmed.

We have examined the record and carefully considered each error assigned. The judgment is supported by the evidence.

Appellant contends that the Common Pleas Court made no finding that the charges were proven, and that the court found only that the decision of the referee should be sustained.

This proceeding is controlled by Section 154-73, General Code, as it existed prior to the amendment effective August 28, 1951, which section, in part, provided :

“The hearing in the Court of Common Pleas shall proceed as in the trial of a civil action, and the court shall determine the rights of the parties in accordance with the statutes or other law applicable to such action. ”

The notice of appeal from the order of the department stated that the order was contrary to the evidence and contrary to law. The court in its written opinion, which is made a part of the record, stated that “violations were found to exist and that they did exist is shown by the preponderance of the evidence.”

In our opinion, a general finding on the issues made complied with the statutory requirements. The case of Shearer v. State Medical Board, 91 Ohio App., 277, 97 N. E. (2d), 688, is distinguishable from the case at bar in that in the Shearer case it appears that the trial court “failed to test the order by the correct principle of law.”

We find no error assigned well made.

Judgment affirmed.

Wiseman, P. J., Hornbeck and Miller, JJ., concur.


author: Guernsey, J.

text:
    Plotner, Appellee, v. The Buckeye Union Casualty Co., Appellant.

      (No. 245
    Decided May 14, 1952.)

      Mr. Clifton A. Caryl, for appellee.

      Mr. E. A. Durbin, for appellant.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Union County, Ohio, in an action wherein the appellee, James Ray Plotner, was plaintiff, and the appellant, Buckeye Onion Casualty Company, was defendant.

The action was brought by plairitiff as the named beneficiary in an automobile insurance policy issued by the defendant, wherein the defendant, among other things, agreed to indemnify the named insured against damages that might be sustained by the insured resulting from collision of the automobile owned by the insured, described in said policy. The damages alleged to have been sustained to plaintiff’s automobile through collision are alleged to have amounted to $254.74.

The policy of insurance comprehended a $50 deductible clause in the ordinary form. Plaintiff sued to recover $204.74, being the amount of damages sustained in excess of the $50 deductible under the clause heretofore mentioned.

In the policy of insurance upon which this action is based, the automobile insured is described as a Pontiac for the year 1949. The term of the policy was from January 20, 1950, to January 20, 1951.

Upon the trial of the case, the Common Pleas Court rendered judgment in favor of plaintiff and against the defendant for $204.74 and costs. This is the judgment from which this appeal is taken.

The defendant assigns error in a number of particulars which may be summarized as an assignment that the judgment of the Common Pleas Court is contrary to law.

In support of its assignment of errors appellant makes two general contentions as follows:

First, that the automobile described in the policy was a 1949 Pontiac and the damages sustained by plaintiff were damages sustained to a 1950 Pontiac not covered by the policy of insurance upon which the action is based.

Second, that the policy of insurance upon which this action is based was cancelled by it pursuant to the terms of the policy, by written notice mailed to plaintiff on April 19, 1950, and effective midnight April 25, 1950, and before July 15, 1950, when the collision in which the plaintiff sustained said damages occurred.

We will consider these assignments in the order mentioned.

The policy of insurance upon which this action was based was introduced in evidence and, among other things, discloses that the automobile insured was a 1949 Pontiac.

Other evidence discloses that the damages sustained by plaintiff were damages to a 1950 Pontiac.

There is evidence that the plaintiff orally notified the local agent of the defendant that he had acquired a 1950 Pontiac in place of the 1949 Pontiac described in the insurance policy, and that he had requested the local agent to transfer the insurance to the 1950 Pontiac.

There is no evidence that the information given by plaintiff to defendant’s local agent, or that the request made by plaintiff to defendant’s local agent were communicated to defendant or that the defendant had any knowledge of the acquirement of the 1950 Pontiac by plaintiff or of any request by plaintiff that the insurance described in said policy should be transferred to the 1950 Pontiac.

There was no endorsement issued by defendant to form a part of the policy.

The policy provides, among other things, in condition No. 20:

“20. Changes. Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy or estop the company from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy, signed by an officer of the company and countersigned by a duly authorized agent of the company.”

Under the above quoted condition 20, the notice to the local agent did not constitute a notice to the defendant, and the request made to the local agent did not constitute a request to the defendant. Under said condition, the local agent was expressly precluded from waiving any of the conditions of the policy on behalf of the defendant. As no endorsement was issued by defendant company to be a part of the policy, transferring the insurance from a 1949 Pontiac to a 1950 Pontiac, the insurance policy upon which this action is based did not indemnify the plaintiff for damages sustained to the 1950 Pontiac.

• “A provision in a policy of automobile liability insurance to the effect that notice to or knowledge by an agent shall not be a waiver of any part of the policy, nor estop the company from asserting any right under the terms of the policy, and that the terms of the policy can be changed only by a writing signed by the president or secretary of the company, is valid and enforceable in an action brought by the company to have declared its freedom from obligation under the contract of insurance.” Republic Mutual Ins. Co. v. Faught, 83 Ohio App., 31, 82 N. E. (2d), 133.

Condition 22 of the policy in evidence is as follows:

“22. Cancellation. This policy may be cancelled by the named insured by surrender thereof or by mailing to the company written notice stating when thereafter such cancellation shall be effective. This policy may be cancelled by the company by mailing to the named insured at the address shown in this policy written notice stating when not less than five days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice and the effective date and hour of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the named insured or by the company shall be equivalent to mailing.

“If the named insured cancels, earned premiums shall be computed in accordance with the customary short rate table and procedure. If the company cancels, earned premiums shall be computed pro rata. Premium adjustment may be made at the time cancellation is effected and, if not then made, shall be made as soon as practicable after cancellation becomes effective. The company’s check or the check of its representative mailed or delivered as aforesaid shall be a sufficient tender of any refund of premium due to the named insured. ’ ’

The uncontroverted evidence in this case shows that the defendant mailed to the plaintiff at the address named in the policy, under date of April 19, 1950, effective April 25, 1950, a notice of cancellation of said policy in conformity to the provisions of condition 22 above set forth. As this evidence is uncontroverted as to the mailing of such notice such fact must be taken to be true. Hayes v. Kentucky Joint Stock Land Bank, 125 Ohio St., 359, 362, 181 N. E., 542.

Under the provisions of condition 22 it was immaterial to the effectiveness of such notice of cancellation whether the plaintiff received it or not.

In the case of Gibbons v. Kelly, 156 Ohio St., 163, 101 N. E. (2d), 497, the Supreme Court had under consideration a provision of an insurance policy similar to condition 22 above quoted, and held, as shown by the second and third paragraphs of the syllabus, as follows:

“2. In the absence of legislation the rights of the parties on cancellation of an insurance policy pursuant to its terms are as fixed by the contract as set forth in the policy.

“3. Where a policy of insurance provides that it ‘may be cancelled by the company by mailing to the named insured * * * written notice stating when not less than five days thereafter such cancellation shall be effective, ’ that the time of cancellation ‘ stated in the notice shall become the end of the policy period,’ that ‘earned premiums shall be computed pro rata,’ that ‘premium adjustment may be made at the time cancellation is effected and, if not then made, shall be made as soon as practicable after cancellation becomes effective’ and that ‘the company’s check or the check of its representative mailed or delivered as aforesaid shall be a sufficient tender of any refund or premium due to the named insured,’ the refund of unearned premium to the insured is not a condition, either precedent or subsequent, to effective cancellation of the policy; and, after cancellation pursuant to such written notice, the insurer is merely indebted to the insured for the amount of any such unearned premium.”

Considering the facts in the case at bar, in the light of these holdings, it is clear that the notice of cancellation mailed by defendant to plaintiff, as heretofore set forth, was effective irrespective of whether the plaintiff received the notice and irrespective of whether the defendant refunded to plaintiff any portion of the premium paid for the policy, and that the portion of such premium that had not been earned by defendant merely constituted a debt from defendant to plaintiff.

As the policy was cancelled as aforesaid before the collision in which plaintiff sustained the damages for which he seeks indemnification, defendant was not liable for the same.

For the reasons above mentioned, both of the contentions of the defendant that the policy of insurance did not provide indemnification for damages to the 1950 Pontiac owned by plaintiff, and that the policy of insurance was cancelled before tbe damages sued for by plaintiff are conclusively supported by the law and the evidence. Consequently, the Common Pleas Court erred in rendering the judgment it rendered, the same being contrary to law.

Said judgment is hereby reversed and this court, rendering the judgment the Common Pleas Court should have rendered, renders final judgment in favor of the defendant and against the plaintiff, and further adjudges that plaintiff pay the costs of this action, both in the Common Pleas Court and in this court.

Judgment reversed.

Middleton, P. J., and Ahl, J., concur.


text:
    Dan et al., d. b. a. Dan & Sons, Appellees, v. Testa Brothers, Inc., Appellant.

      (No. 141
    Decided May 23, 1952.)

      Mr. Fred F. Fox and Mr. John R. Allen, for appellee.

      Mr. L. C. Young and Messrs. Herts é Kates, for appellant.
   Per Curiam.

The parties to this appeal entered into agreements in writing by the terms of one of which plaintiff agreed to sell to defendant ail merchantable coal owned and mined by it in Noble county between July 17,1948, and July 16, 1949, for $2.45 a ton, less an allowance of 3 per cent for slate; and by the terms of the other of which defendant agreed to haul coal for plaintiff at a stipulated rate per ton.

Plaintiff sued defendant in the Court of Common Pleas to recover an amount allegedly due it from defendant for coal sold and delivered to defendant, less an amount due defendant for hauling coal pursuant to the second agreement between the parties, to which reference has been made.

In that action defendant admitted the purchase and delivery of and nonpayment for such coal, and that plaintiff was entitled therefor to the amount alleged in the petition. However, by amended cross-petition defendant alleged that plaintiff breached the parties’ contract by selling 23,640.60 tons of its coal mined in Noble county to others than defendant, to defendant’s damage by reason of lost profits in the sum of $15, 366.39, being the difference of 65 cents a ton between tbe contract price and tbe reasonable market value of the coal; and claimed amounts due it for hauling coal and other items, credited plaintiff for the amount admittedly due plaintiff, and prayed judgment against plaintiff for $9,237.12.

By reply to defendant’s answer and cross-petition, plaintiff alleged that defendant breached the contract by refusing to accept and pay for coal which by the terms of the contract defendant should have accepted and paid for, which defendant denied.

The jury returned a verdict for plaintiff on its petition in the amount of $6,129.27, concerning which defendant, appellant herein, makes no complaint in this appeal. The jury returned a verdict against defendant on its cross-petition,- which gives rise to the complaints made by defendant in this appeal.. The trial judge rendered judgment accordingly, and from that judgment defendant appealed to this court on questions of law.

Defendant contends that the trial judge erred to its prejudice in refusing to charge the jury in writing before argument pursuant to the following request submitted by it:

“3. If you find by the preponderance of the evidence that at a time when Testa Brothers, Inc., had merely rejected coal which they found to be not merchantable and marketable, Dan & Sons sold to others coal which was merchantable and marketable, then as a matter of law, Testa Brothers, Inc., are entitled to a verdict in their favor and against Dan & Sons on their counter-claim.”

Defendant contends that the request as submitted by it “stated the law pertinent and applicable to the issues between the parties and the omission so to charge constituted error prejudicial to this defendant.”

With further reference to this request to charge before argument, defendant contends:

“The issues before the jury included the question whether the defendant had rejected coal which was merchantable and by so rejecting it, jiad relieved the plaintiff of its obligation to sell all its coal to the defendant. If the jury found that the defendant had unreasonably or improperly rejected coal which it should have accepted, the jury would be under duty to find that the plaintiff was excused from further performance. If on the other hand, the jury found that the defendant had rejected coal merely because it was not merchantable, then such rejection would not excuse the seller from performance.”

Defendant contends further that the trial judge erred to its prejudice in charging the jury generally “that defendant to recover on its counter-claim must prove, in addition to that which is required by law, that at the time and place involved the defendants ‘had an available market for the coal sold by plaintiffs to other customers’ that “whether the buyer had an available market is entirely irrelevant”; and by such charge “the court placed upon the claimant (defendant) an erroneously excessive burden of proof,” and ‘ ‘ required him to prove something which the law does not require.”

In support of its contention,- defendant cites Phillips v. Sharp, 44 Ohio App., 311, 185 N. E., 562.

Arguing against defendant’s contention that the trial judge erred to its prejudice in refusing to charge the jury in writing before argument on the proposition of law submitted by defendant, plaintiff contends that such request as submi+ted was ambiguous and an incomplete statement of the law; that the law as charged in the special request to charge before argument was covered in the general charge of the trial judge; and that when charged in the general charge the trial judge committed no error in refusing to charge defendant’s special request even though it contained a correct statement of the law.

Plaintiff contends that defendant failed to carry the burden of proof imposed upon it of showing “that they could sell all the coal of the grade and in the quantities being offered by plaintiffs — at a profit of 65c per ton — ”; and that the trial judge was ‘ ‘bound to charge the jury with regard to this allegation.”

Continuing, plaintiff argues further that “the damages to plaintiffs [evidently meaning defendant] should be minimized where this can be done — in other words — where there is other property of the same kind in the market which can be purchased, it is the duty of the party who claims that his contract has been broken to go into the market and purchase the property. If he has to pay more than he agreed to pay the other party, then he can recover the difference between the amount he has to pay and the contract price.”

Finally, plaintiff argues “that similar coal could be purchased at this time for $1.85 to $3.10. We might ask ourselves why, if there was this available market didn’t appellant go into it and purchase coal if it was damaged by appellees nondelivery? Obviously if appellant did not have a market for coal, there would be no point in running the risk of purchasing coal which possibly could not be disposed of.”

Considering defendant’s assignment of error that the trial judge erred to defendant’s prejudice in refusing to charge the jury in writing before argument as requested by defendant, we concur in the contention of counsel for plaintiff that the charge as submitted by defendant was incomplete, ambiguous and would have tended to mislead the jury. Therefore, in our opinion the trial judge did not err to defendant’s prejudice in refusing to give such requested charge. However, we do not subscribe to the contention of counsel for plaintiff that had such charge stated the applicable law clearly, the refusal of the court to charge the same was cured by the general charge of the court.

With reference to defendant’s assignment of error concerning the general charge, the record discloses that the court charged the jury:

“Defendant has alleged that it suffered a loss of 65c per ton for the 22,584 tons. The court says to you that loss profits are a proper element of damages when such.loss is the direct and necessary result of plaintiff acts.

“If you find by a preponderance of the evidence that plaintiff has breached or violated their contract in this respect, you will then consider the measure of damages due the defendant from plaintiff. And the court says to you that the measure of damages to Testa Brothers if you consider this matter would be the difference between the contract price and the fair market price as of that time and place of the same or similar coal, providing that you further find that Testa Brothers, at said time and place had an available market for the coal sold by plaintiffs to other customers.

“In case your finding is for Testa Brothers as to their claim of damage in the cross petition you would be limited to 65c per ton as damages for the number of tons you should find.”

We find no error in this charge for the reason that in its amended cross-petition defendant alleged in substance that it suffered damages by reason of loss of profits which it “would have obtained” had such coal been delivered to it.

It is noticed that such cross-petition seeks to obtain judgment for prospective profits and claimed accrued profits rather than for the difference between the selling price and the market price at the time of the claimed nondelivery of coal.

Having so claimed prospective profits in its amended cross-petition, it was incumbent upon the defendant to show that it had a market for any coal not delivered in accordance with the contract.

The trial judge did not err to defendant’s prejudice in the respect claimed by it in this assigned ground of error.

Upon consideration of all assigned grounds of error, we find no error prejudicial to defendant in the respects urged therein.

The judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Nichols, P. J., Griffith and Phillips, JJ., concur.


author: Wiseman, J.

text:
    Barnes, Appellee, v. Keller, Appellant.

      (No. 2206
    Decided December 16, 1952.)

      Mr. Herbert M. Eikenbary and Mr. Raymond A. White, for appellee.

      Messrs. Shaman, Winer, Shulman & Ziegler, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Municipal Court of Dayton. The action in replevin was instituted to recover the possession of two bear cubs. At the time the action was instituted, the bears were not in the actual possession of the defendant and were not taken by the officer who served the writ.

The court proceeded to determine the right of possession of the bears and took no evidence on the matter of damages.

In the judgment the court found that the plaintiff was entitled to the immediate possession of the bears, “from any and all parties holding and possessing same.” The court ordered the defendant to return the bears to the plaintiff.

The defendant, appellant herein, has assigned six grounds of error. Defendant claims that he did not have either actual or constructive possession of the bears at the time the suit was instituted, and that, therefore, the court erred in proceeding to a hearing and judgment in an action of replevin. The point is made that the remedy is in conversion. State, ex rel. Story, v. Jennings, 14 Ohio St., 73; Simper v. Bentley, 15 C. C., 515, 8 C. D., 356. The trial court found the bears to be in the constructive possession of the defendant. The record shows that when the defendant, a game warden, took the bears from the plaintiff to determine whether they had been taken out of the state of Michigan illegally, and brought into the state of Ohio, he immediately delivered them to a third person to care for and keep for him, since he did not have a proper place to house them at the time. The legal maxim, ‘ ‘ qui facit per alium fácit per se,” is applicable here. The court was corroct in concluding that the bears were in the constructive possession of the defendant.

We find no error committed in the failure of the trial court to make the owner of the bears a party defendant. Mary Ikert appeared as a witness and claimed ownership as against the plaintiff, claiming her mother had turned the bears over to the plaintiff without her knowledge or consent. At no time did she file an application to be made a party to the action. Section 11263, General Code.

Defendant claims the trial court erred in its judgment in finding that the plaintiff was entitled to the possession of the bears “from any and all parties holding and possessing same.” The issue presented here was the right of possession as between the plaintiff and the defendant. It was clearly erroneous to attempt to adjudicate the rights of persons who were not parties to the suit. In the absence of a reversal of the judgment on other grounds, this court would enter the proper judgment on this issue.

Defendant contends that the trial court erred in ordering the defendant to return the bears to the plaintiff. This, together with other assignments of error, raises the principle question presented. The bears were not found in the actual possession of the defendant and were not taken by the bailiff. Under this state of facts, what was the duty of the trial court?

Section 12070, General Code, which governs the procedure in replevin actions filed in the Common Pleas Court, in part, provides:

“When the property claimed is not taken or is returned to the defendant by the sheriff for want of the bond required of the plaintiff, the action may proceed as one for damages only, and the plaintiff shall be entitled to such damages as are right and proper. ’ ’

A similar provision is contained in Section 10477, General Code, which controls the procedure in replevin actions before a justice of the peace. Under either statutory provision, when the property is not seized, the action proceeds as one for damages only. The action, by force of the statute, without amendment, is regarded as one in the nature of an action of trover. 35 Ohio Jurisprudence, 431, Section 6.

In Pugh v. Calloway, 10 Ohio St., 488, the court, on page 492, said:

“The code also provides, that when the property claimed has not been taken, or has been returned to the defendant by the sheriff, for want of the undertaking required by section 179, the action may proceed as one for damages only, and the plaintiff shall be entitled to such damages as are right and proper. * * * We think the necessary effect is to render the proceeding one in the nature of an action of trover, and entitles the plaintiff in the action to recover damages, on the assumption that the defendant is to keep the property and pay the value, at least to the extent of the plaintiff’s interest. Thus the statute operates as an amendment of the pleadings, and the proceeding in the action necessarily advises the party of the nature of the claim which he is expected to meet. No surprise or injustice is likely to result, and we do not think any formal amendment is necessary.”

In Tischler v. Seeley, 14 C. C. (N. S.), 236, 237, 12 C. D., 750 (affirmed without opinion by the Supreme Court in 60 Ohio St., 629, 54 N. E., 1110), the court said:

“Now, Section 5827, Bevised Statutes, provides that, if the property is not taken or is returned for want of the undertaking, the action may proceed as one for damages. The statute does not specify any particular reasons or instances in which the property is not taken, but it is general and unqualified that, if the property is not taken, the action may proceed as one for damages.”

On page 238, ibid., the court said:

‘ ‘ Of course, the only result of a suit under such circumstances would be a money judgment. The property has passed beyond the process of the court.”

In the instant case, the trial did not proceed as one for damages. The procedure at the hearing and the judgment rendered did not conform to the statute and constitutes reversible error.

The judgment is reversed, and the cause is remanded for further proceedings according to law.

Judgment reversed.

Hornbeck, P. J., and Miller, J., concur.


text:
    Malin, Appellee, v. Cohn, Appellant.
    (No. 3492
    Decided April 3, 1952.)

      Mr. V. A. Buonpane and Messrs. Modarelli & Modarelh, for appellee.

      Messrs. Traxler & Beil, for appellant.
   Per Curiam.

Plaintiff sued defendant in the Court of Common Pleas, and by petition amended by interlineation alleged:

“Plaintiff says that she is a resident of Youngstown, Mahoning county, Ohio, and that the defendant owns and operates a store known as the ‘East End Super Market.’

“Plaintiff, for her first cause of action, says that she was an employee of the defendant, working in the aforementioned store, during a period from October 1, 1943, to March 25, 1945, inclusive; that the prevailing Vrage for the services of the type and nature performed by her viz. general clerk, sales clerk & ass. mgr. for the defendant was $.85 per hour. Plaintiff says that during the hereinbefore mentioned period, she worked 4104 hours and received as compensation for, said hours $2,160, and that the amount she should have received for said hours on the basis of an $.85 per hour wage was $3,488.40, leaving an unpaid balance of $1,-328.90 with interest at 6°/o from March 25, 1945 until paid.

“Second cause of action.

“Plaintiff, for her second cause of action, adopts all of the allegations and averments in the first cause of action as though herein rewritten.

“Plaintiff says that she worked for the defendant from September 1,1945, to May 26,1948, inclusive, and that the prevailing wage scale per hour for the type of work performed viz. general clerk, sales clerk & assistant mgr. by the plaintiff for the defendant was $.85.

“Plaintiff says that during the period hereinbefore mentioned she worked 7,052 hours and was entitled to the sum of $5,994.20, and received on account for the services performed the sum of $4,566.92, leaving an unpaid balance due plaintiff in the sum of $1,427.28 with interest at 6% from May 26, 1948, until paid.

“Wherefore, plaintiff prays judgment on her first cause of action in the sum of $1,328.40 with interest at 6% from March 25,1945, until paid; and on her second cause of action, the sum of $1,427.28 with interest at 6% from May 26, 1948, until paid, and for such other and further relief as may be just and proper.”

The first and third defenses of defendant’s answer were stricken therefrom, and in the second and fourth defenses thereof he plead as follows:

“Second defense.

“Further answering, defendant admits that the plaintiff was an employee of his store within a period from October 1, 1943, to March 25, 1945, but defendant denies each and every other allegation in said petition contained. ’ ’

“Fourth defense.

“For his second defense to the second cause of action herein, defendant says that plaintiff was in his employ during a period between September 1, 1945, and May 26,1948, but defendant denies each and every other allegation in said second cause of action contained. ’ ’

The jury returned a verdict for $1,700 for plaintiff, upon which, after overruling defendant’s motions for judgment to be entered in his favor notwithstanding the verdict and for a new trial, the trial judge entered judgment, from which defendant appealed to this court on questions of law.

By assignments of error defendant contends that the trial judge erred to his prejudice in overruling his motions for judgment to be entered in his favor at the close of all the evidence and notwithstanding the verdict and for a new trial; and urges that “the verdict in favor of the plaintiff-appellee and against the defendant-appellant is not sustained by any evidence or evidence upon which reasonable minds might differ.”

Without detailing it, in our opinion, the evidence is such that “reasonable minds might differ” upon a conclusion to be reached therefrom, and accordingly presented questions for the determination of the jury, whose verdict, in our opinion, was against the manifest weight of the evidence.

The record discloses that, until the day plaintiff’s employment ended, she never contemplated that she was entitled to anything but the weekly wage testified to by her, which she accepted as full compensation for her services.

The judgment of the Court of Common Pleas is reversed and the cause is remanded thereto for further proceedings to be had in accordance with law.

Judgment reversed.

Nichols, P. J., Griffith and Phillips, J J., concur.