author: PER CURIAM.

text:
    GUARDIAN AND WARD — PRINCIPAL AND SURETY.
    [Richland (5th) Circuit Court,
    January Term, 1913.]
    Voorhees, Powell and Shields, JJ.

      C. E. McBride et al. v. H. E. Bell et al.
    Sureties on Bond of Guardian Entitled to Institute Action to Set Aside-. Sale of Real Estate of Ward Made without Order of Appraisement.
    An action lies to set aside a sale of real estate, made by a guardian without an order of appraisement, as prescribed by SetL6283 R. S. (Sec. 10948 G. C.), and without any appraisement in fact made, and such action is available to sureties on the? guardian’s bond without waiting indefinitely for a -final account to be filed, especially since the ward fails or refuses to> institute such proceeding and apparently conspires with the-guardian and purchaser to extort from the sureties funds misappropriated hy such guardian.
    [Syllabus approved by the court.]
    Appeal.

      W. H. Gifford, for plaintiffs in error.

      McBride & Wolfe, and C. H. Workman, for defendants in error.

       Affirmed, no op., Case v. McBride, 91 O. S. 000; 60 Bull. 129.

   PER CURIAM.

This cause is before this court on appeal from the judgment of the court of common pleas of this county. The question presented arises upon a demurrer to the petition wherein it is alleged that one IT. E. Bell was on October 10, 1890, appointed by the probate court of this county as guardian of Della Wolford then an imbecile, but now, not under legal disability, and that on said day Beli gave bond as such guardian in the sum of $2,000, with C. E. McBride and S. M. Douglass as sureties thereon, to faithfully account for the estate of said Wolford. That afterwards on October 18, 1902, said guardian filed a petition in said court for an order to sell the undivided one-half interest of lot 4177 of the consecutive numbers of lots in the city of Mansfield, said county, owned by said ward, and that on November 14, 1902, sold the same to one John N. Case for the sum of $1,000, which said sale was afterward approved and confirmed by said court and said guardian executed a deed therefor, but said Case now claims to hold and own the same, but the plaintiffs allege that said proceedings and sale are illegal and void because said guardian sold said real estate without having first given an additional bond as such guardian and without first having procured an order of said court to appraise the same, and without first having caused the same to be appraised. That afterwards and on January 26, 1906, said guardian filed his fifth partial account in said court, and on March 19, 1906, said court approved and confirmed said account, when said court found him chargeable with the sum of $998.34 belonging to his said ward, which said sum the plaintiffs allege is wholly of the moneys received by said guardian from the sale of said real estate. That said Bell as such guardian on March 24,1906, tendered his resignation to said court, which on said day was accepted, and that at the commencement'of this action no final account had been filed by him as such guardian in said court.

It is further alleged in said petition that suit was entered by the said Della Wolford against the plaintiffs to recover the amount found in the hands of said guardian by said court and due from said guardian on the said fifth partial account as aforesaid, which said suit was found and adjudicated by this court to have been prematurely brought on account of no final account having been filed in said probate court by said guardian. Other allegations are made in said petition which we do not deem it important to call attention to in connection with the demurrer filed, except to add that said Bell as said guardian, and said Della Wolford, are made parties defendant to this action.

The plaintiffs pray that said pretended deed executed to John N. Case by said guardian, and which is a cloud upon the title of said real estate of said Della Wolford be ordered can-celled and held for naught, and that he be required to reconvey said property, and that in default thereof, the decree of this court may stand as and for a cancellation of said deed and transfer, and that said John N. Case may be required to set up whatever claim he may have in the premises or any part thereof, and that said Della Wolford may be restored to her just rights in said premises, and that said pretended purchase price carried by said guardian into his fifth partial account may be stricken therefrom, or a basis of action upon the bond given by said plaintiffs, and that in the meantime said John N. Case be enjoined from disposing of said property, or otherwise encumbering the same, and that on the final hearing hereof he be perpetually enjoined from so disposing of, or encumbering said premises, and for such other and further relief in equity as the plaintiffs may be entitled to.

It would seem that the plaintiffs rely upon three distinct grounds for the relief sought in this action.

First: That no final account has been filed by the guardian before the commencement of said action.

Second: That said guardian did not give an additional bond- before the sale of said real estate.

Third: That no appraisement of said real éstate was made.

Section 6304 E. S. (G-. C. 10991) provides that,

“All laws relating to guardians for minors and their wards .-and all laws pointing out the duties, rights and liabilities of such guardians and their sureties in force for the time being, ■shall be applicable to guardians for imbeciles, idiots, and lunatics, except as otherwise specially provided.”

Section 6285 E. S. (G-. C. 10950) provides that,

“Upon the appraisement of said real estate being filed, •signed by said appraisers, the court shall require such guardian to execute a bond, with sufficient freehold sureties at least two in number, in addition to the principal, payable to the state in -double the appraised value of such real estate, with condition •for the faithful discharge of his duties and the faithful payment .and accounting for of all moneys arising from such sale according to law, which bond shall be additional to that given by said guardian at the time of his appointment; and no court shall have power to waive the giving of such additional bond, nor jurisdiction to order the sale of such real estate until the same has been given.”

This section has at various times been construed by our Supreme Court which has held that the failure to give such bond .as mentioned in the preceding section, will not relieve sureties from liability on a guardian bond.

Maurar v. Parrish, 26 Ohio St. 636; Arrowsmith v. Harmoning, 42 Ohio St. 254; Arrowsmith v. Gleason, 129 U. S. 86 [9 Sup. Ct. Rep. 237; 32 L. Ed. 630].

As was held by this court at a former term thereof; in a suit brought by Della Wolford to recover from the sureties on said guardian’s bond, the amount found b.y the probate court in the hands of said guardian on the filing, approval and confirmation of his fifth partial account was premature, because said guardian had not then filed his final account in said court, and until so filed and the amount due thereon judicially ascertained and fixed by said court, no cause of action in favor of the said Della Wolford accrued. Newton v. Hammond, 38 Ohio St. 430.

And such would be our holding now in a case of like character, but we know of nothing in the ease at bar involving this principle of law, because it does not appear that the plaintiffs herein are called upon for the payment of any sum already adjudicated against them.

But it is further alleged in said petition that the real estate of said guardian’s ward was sold without an order of appraisement issued by said probate court, and without any appraisement of said real estate having been made prior to said sale. Section 6283 R. S. (G. C. 10948) provides that,

“At the time appointed for the hearing of said petition, and being satisfied that the notice named in the last preceding section has been given, and that such real estate ought to be sold, the court shall appoint three freeholders of the county in which said real estate shall be situated, who are not a kin of the petitioner, to appraise said real estate; and if such petition seeks to have the land or any part thereof, laid out in town lots and the court finds it will be to the advantage of the ward to have the same done, the court shall also authorize the survey and platting of the land for that purpose.”

Said section requires that an appraisement of the real estate shall be made before sale, and we think it is the settled policy of this state, and that it is the uniform rule of courts in this state, to require such appraisement by a guardian to be made. Clearly said sale in this respect was at least irregular, and subject to be set aside in a proper proceeding to .be commenced for such purpose. But can the plaintiffs avail themselves of this privilege? Have they any such rights that they can assert in an equitable proceeding to protect themselves from being subjected on their bond as sureties to the payment of a liability without authority of law? In the case of Myers v. Hewitt, 16 Ohio 449, it is held that, “A judgment creditor may file a bill after levy, to clear away the cloud cast upon the title by such sale, etc.”

Applying a like equitable ride to the case at bar, can not the sureties on this bond maintain the action herein without waiting indefinitely for a final account to be filed and judicially passed on in the estate of Della Wolford, when perhaps they could assert their rights and defend as such sureties? That Della Wolford could institute a proceeding to set aside said deed to said Case for the reasons hereinbefore stated, admits of no doubt, but having refused to do this, or at least not having done so, with the fair presumption that she is familiar with the circumstances leading up to the execution of such deed, thus winking at the enforced payment by the sureties on her guardian’s bond 'of moneys misappropriated, at least unaccounted for by such guardian, can it be said that such sureties are powerless in a court of equity to obtain relief? Equity will afford relief against fraud, and equity will likewise afford relief against a conspiracy to defraud. While this element of fraud may be entirely lacking in the ease as may appear upon trial had in a court of general equity jurisdiction, still we think the averments in petition, when taken together, state a cause of action and the demurrer will therefore be overruled.


source: Caselaw Access Project

author: ALLREAD, J.

license: Public Domain

text:
    FRAUD AND DECEIT-VENUE.
    [Darke (2nd) Circuit Court,
    December 11, 1912.]
    Dustin, Allread and Ferneding, JJ.
    William H. Townsend v. State of Ohio.

      1. Change of Venues for Prejudice Properly Overruled If Prejudice . Based on Newspaper Reports.
    Prejudice existing in a community against an accused person may be tested on the examination of jurors on their voir dire; hence, if it appear that opinions as to the guilt of the accused are based on newspaper articles but not fixed and as such would readily yield to evidence an application for change of venue may be overruled.
    2. Conspiracy Proven by Direct Testimony of Coconspirators.
    Proof of conspiracy to present a false claim against a county by the direct testimony, of witnesses having personal knowledge of the fact bears upon the res gestae, the fact that the witnesses were conspirators goes to the weight and not the competency of the evidence; hence evidence of conspirators, including acts and declarations of coconspirators, is properly submitted to the jury.

      3. Sufficient Instruction as to Intent to Defraud.
    An instruction putting the burden on the state not only of proving a general intent to defraud but also a specific “intent to defraud the county” is properly refused under Sec. 13590 G. C.
    [Syllabus by the court.]
    Error to common pleas court.

      Martin B. Wainer, George W. Mannix and Bickel & Baker, for plaintiff in error.

      John F. Maher, Pros. Atty. and David W. Bowman, for defendant in error.
   ALLREAD, J.

This ease has been prosecuted and defended with unusual zeal and ability. Many exceptions have been taken to the rulings of the trial court and are now presented for review.

The objections to the indictment and the sufficiency of the pleas in abatement are identical with those considered in the Turner and Fry cases heretofore decided in this court, and we rest upon the views there expressed.

The accused shortly before the day set for trial moved for a change of venue, supporting the motion by the affidavits. of twenty-five citizens from various parts of the county supplemented by copies of newspaper articles appearing from time to time in newspapers circulating throughout the county.

The state offered in opposition to the change of venue twenty-five affidavits. The state also offered by way of affidavit evidence to the effect that competent jurors were readily secured in the four preceding trials of indictments, of the same general nature, and as evidence of fairness one acquittal is cited.

The trial court overruled the motion for change of venue and put the accused on trial.

After the jury was secured the motion for a change of venue was renewed upon the original evidence, together with the voir dire examination of the veniremen, and was again overruled.

It has been repeatedly held that the question of change of venue is one addressed to the sound discretion of the trial court and can not be made the subject of reversal, unless it appears from the record that the discretion has been abused.

It is urged that the affidavits tending to show prejudice should be considered as positive and direct testimony, and should preponderate over those tending to show absence of prejudice upon the theory that the latter are negative only.

We are unable to agree with this contention. The affidavits upon each side, so far as they are based upon fact, are equally positive. They refer to the general state of feeling and sentiment among the citizens of the county. Upon this state of the evidence, we can not say that there was an abuse of discretion by the trial court in holding that the evidence for the accused did not preponderate over that for the state and require a change of venue.

It is contended, however, that the newspaper articles are of such character as to make it apparent that public sentiment was inflamed and passion and prejudice aroused to such an extent as to make a fair trial improbable.

Upon the whole we think these newspaper articles are not of such character as to justify the assumption that the body of citizens of the county were so far prejudiced against the accused ■ as to be unwilling or unable to accord a fair trial. Some of them counsel moderation and appeal to the citizens to await judicial investigation.

We have considered the voir dire examination of the veniremen with care, as it affords the best test as to the existence of prejudice. The veniremen were drawn through the agency of the jury wheel and may, therefore, be considered representative. In addition,we have the benefit of direct and cross-examination to bring out the facts more fully than can be expected of ex parte affidavits. The examinations disclose nothing more than opinions based upon newspaper articles, and these opinions were not so fixed as to be incapable of readily yielding to the evidence. We find nothing to indicate that a fair-minded jury could not be secured capable of giving the defendant a fair trial.

We are, therefore, of the view that there was no error in refusing the change of venue.

Complaint is made of being forced into trial immediately following the decision upon the motion to change the venue, but we find nothing in the record to show that the accused was unable to secure the presence of his witnesses or was in any other manner prejudiced by being put upon trial at that time.

Upon the question of the qualification of the jurors and the rulings of the trial court upon the challenges, we find that the defendant’s challenges were sustained wherever there appeared any suspicion of prejudice against the accused personally. The objections of the plaintiff in error to the accepted jurors and to those challenged peremptorily by the accused are based largely, if not wholly, upon their having formed opinions from reading newspaper accounts, which they stated would require evidence to remove. It will be noted, however, that in all these cases, upon examination by the court, the jurors declared that they could render a fair and impartial verdict, based upon the evidence and the charge of the court. We think that under the authority of Lindsey v. State, 69 Ohio St. 215 [69 N. E. Rep. 126], there was no error in overruling the challenges for cause.

Counsel criticise the trial court for examining the jurors after having stated that they had formed opinions, but it will be noted that under Sec. 13653 G. C., it became the duty of the trial court to examine the jurors, and, determine as to their impartiality.

Counsel also complain of the statement of the trial judge an deciding the motion for a change of venue that defendant had not shown sufficient interest to be present. We doubt the propriety of this remark, if it was actually made in the presence of the veniremen, but there is no certificate or statement of the tr'al judge to the effect that the veniremen were present, nor does it appear from the voir dire examination that any of the n.( cepted heard the remark or were influenced thereby. The only statement in the record that any jurors were present is that of the counsel, but the fact is not verified by the certificate of the trial court. There is, therefore, no prejudicial error in this respect appearing upon the record.

Objection is made to the proof by the state of alleged eon- ’ spiracy among Townsend, H. J. Fry, Ed Fry, Lott, Holland and Sipple, and of their respective declarations. This objection is founded: (1) upon the absence of a charge of conspiracy in the indictment, and (2) upon absence of prima facie proof of conspiracy.

We think it is competent to prove a conspiracy although not alleged expressly in the indictment, where it is incidental and leading up to the crime charged. This doctrine is announced in. the opinion in Goins v. State, 46 Ohio St. 457, where it is said:

“Counsel contend, that to render the acts and declarations of a eoconspirator competent evidence, the indictment should have, in express terms charged a conspiracy. This is true where the act of conspiring is itself the crime charged; but where some other act is the real offense, and the conspiracy is a common purpose leading to the commission of the main criminal act, a conspiracy need not be alleged in express terms, and if any allegation in respect thereto is at all necessary, the charge in the indictment that it was jointly done is sufficient for that purpose.”'

The same question was involved in the case of Diegle v. State, 33 O. C. C. 83 (14 N. S. 290), where it was held that the general averment of aiding and abetting was sufficient to admit the evidence.

It is urged that mere declarations of alleged coconspirators can not be accepted as proof of the conspiracy. The soundness of this principle may be conceded, but it does not reach the present situation. The proof of conspiracy here rests, not upon mere declarations, but upon the direct testimony of witnesses having personal knowledge of the fact of conspiracy and whose testimony bears upon the res gestae. That the witnesses were coeonspirators goes to the weight but not to the competency of the evidence. The testimony tended to connect the defendant Townsend with the conspiracy and show his participation in it.

The conspiracy was, therefore, sufficiently proven prima facie by the testimony of H. J. Fry, J. R. Holland and Noah Sipple to justify the court in allowing the evidence in relation, thereto, including the acts and declarations of the coeonspirators, to go to the jury.

The evidence tended to show a conspiracy somewhat general in its nature and covering an extended period, to award contracts without competition and upon liberal terms with an agreement for secret commissions from the contractors to the commissioner having charge of the territory, and that in pursuance thereto commissions were paid to both Townsend and Sipple; that H. J. Fry was the favored contractor of Townsend in his territory, and that Ed Fry was in like manner favored by Sipple.

It is urged that the general conspiracy is not germane to the crime charged, to wit, the presenting and receipting payment of false voucher of $168, and that the wide scope of the general conspiracy as allowed to go to the jury had a prejudicial effect.

We think, however, that the general conspiracy was properly allowed to go to the jury, because it constituted the main system of transactions out of which the special conspiracy sprung. The general and special conspiracies were so intimately connected as to make the proof of one incomplete without the other.

The evidence offered by the state tended to show that by reason of the general conspiracy and of H. J. Fry’s connection therewith, he was called upon to advance $200 of the $400 which Lott was to pay back to the county for salary unlawfully drawn as tax map draftsman. This, it is claimed, H. J. Fry finally did and was repaid partly by the proceeds of the false voucher charged in the indictment.

It was, therefore, competent also to show the acts and declarations of Lott in respect to the $400 refunded, as that formed the subject of the conspiracy and was the first step in the special conspiracy and from which the $168 false voucher was evolved. The declaration of Lott to the deputy treasurer when he paid in the $400, that he expected to get it back, was in harmony with the conspiracy and made while in the act of carrying it forward and was competent.

Special objection is made to the identification and description of the voucher in favor of George Beireis (pp. 194 and 256). No exceptions appear on page 194 and none on page 256 to the specific item of the Beireis claim. The contract and voucher of Beireis was expressly ruled out, and we think that there was no prejudicial error in respect to the identification thereof.

The motion on page 256 to take from the jury evidence in regard to “paying him money right along,” referring to the secret commissions paid by Fry to Townsend was too indefinite to apply merely to payments subsequent to the offense charged in this indictment and was, therefore, properly overruled.

The evidence tending to prove the raising of money to bribe the grand jury and suppress the indictments was competent on the subject of guilty demeanor and entitled to go to the jury.

The cross-examination of Townsend as to subsequent transactions was in our opinion made competent by the scope of the direct examination. Townsend in direct examination sought to explain his approval of the contract and voucher for the repair of the Marshall bridge by the statement that he took no active responsibility for work in the territory assigned to Sipple but relied upon Sipple’s recommendation and approval. It was, therefore, competent for the state to rebut and discredit this di.rect testimony of Townsend by cross-examination, showing his active interest in Sipple’s territory, and also by rebuttal evidence to the same effect even though it tended to show transactions subsequent but closely associated with the transaction in controversy.

The state relied largely upon the testimony of accomplices to support conviction. The rule of law as to its weight and the right of the jury to rest conviction thereon was correctly given by the trial court in special request No. 6. Special request No. 7 is not the law in this state but is favorable to the accused and not prejudicial.

Counsel for plaintiff in error insist that special charge No. 3 ought to have been given. This is based upon the proposition that although intent to defraud is not prescribed as an essential by statute,, yet having been averred in the indictment, it was incumbent upon the state to prove it. Conceding for the present purpose this contention to be sound, it will be observed that the special charge is more extended than the averment of the indictment. The indictment charges generally an “intent to defraud” while charge No. 3 proposes to place upon the state the burden not only of proving a general intent to defraud but a specific “intent to defraud the county.” This is not required by the indictment and is expressly dispensed with by Sec. 13590 Gr. C. There was no error, therefore, in refusing this charge.

We find no such misconduct of counsel, either in the trial statement or final argument, as to justify reversal.

Upon the weight and sufficiency of the evidence, it is conceded that the verdict rests largely upon the testimony of accomplices. The case went to the jury upon special charge No. 6 and upon special charge No. 7, which was favorable to the accused. Under these charges, it must be assumed that the jury not only accepted the testimony of H. J. Fry and the other accomplices, but found such testimony to be corroborated.

Before this court is justified in reversing upon the weight of evidence the verdict must be found to be manifestly contrary thereto.

We have no difficulty in reaching the conclusion that the contract for the repair of the Marshall bridge was fictitious, and the bill of $168, therefore, was wholly false. The falsity of the bill was undoubtedly known by H. J. Fry at the time he caused it to be presented and at the time the money was received. The principal offense was, therefore, clearly established.

Did Townsend aid and abet Fry in the commission of the offense? The positive testimony of H. J. Fry that he did is consistent with the other evidence and in some measure corroborated by it.

H. J. Fry was Townsend’s favored contractor and received without competition substantially all the bridge contracts in his territory. Townsend signed both the contract and the voucher for the Marshall bridge. The fact that Townsend was the only commissioner who signed both the contract and voucher, taken in connection with the fact that H. J. Fry was his contractor, is consistent with the state’s contention and may be said to be in corroboration of it. The relation of H. J. Fry and Townsend was close and confidential to such an extent that Townsend by his own admission allowed Fry to receive contracts in the name of J. R. Holland to deceive the prosecuting attorney and one of the commissioners who objected to the Fry contracts.

When, in connection with these facts, it appeared that the bill presented was wholly false, there was evidence enough to put the defendant Townsend upon his defense. His testimony was to the effect that the Marshall bridge was in Sipple’s territory, and that he signed the contract after Sipple and upon his recommendation. Yet, the voucher, itself, which is most important, is not signed at all by Sipple. It is true that Townsend testifies that Lott advised him the bill was correct and asked him to approve it, yet the fact that Sipple did not sign the voucher is to some extent corroboration of the state’s claim that Townsend was active in this transaction and in connection with Lott inspired it.

The testimony of H. J. Fry is also corroborated by other circumstances connected with the alleged conspiracy by the testimony of Holland and Sipple.

We have, carefully considered the entire evidence and are of the opinion that the verdict is not contrary to the manifest weight of evidence.

There are other exceptions urged but we find upon the whole record that there is no prejudicial error.

Judgment affirmed.

Dustin and Ferneding, JJ., concur.


author: JONES, E. H., J.

text:
    WILLS.
    [Hamilton (1st) Court of Appeals,
    March 22, 1913.]
    Swing, Jones and Jones, JJ.
    Tharp v. United States Fidelity & Guar. Co.
    1. Devise of Life Estate with Power to Consume in Widow with Remainder in Son Constitutes Vested Remainder in Son.
    Under the will of T. a life estate with power to consume was bequeathed to his widow, and at her death “should there be remaining of my estate and property a sum greater than $5,000, I give and bequeath the remainder thereof to my son W. P. T.” Held: That the son took a vested rather than a contingent •remainder, and his daughter must therefore claim as his heir at-law and subject to his debts.

      2. Devisee’s Daughter Cannot Subject Bond of Devisee of Contingent Remainder for Estate Appropriated by Him.
    But even were it true that W. P. T. took a contingent remainder, his daughter could not maintain an action on his bond for the value of the estate alleged to have been appropriated to his own use; but the proper procedure would be by exceptions to his account as filed in the probate court, or by petition to set aside the settlement which he made in the probate court as administrator of the estate.
    [Syllabus by the court.]
    Error.

      C. W. Baker, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
   JONES, E. H., J.

Oliver P. Tharp, a resident of Hamilton township, Warren county, Ohio, died February 25, 1894. On March 9, 3894, as appears by a transcript of the docket entries in the matter of his estate, his "will was admitted to probate. The will was as follows;

“In the name of the Benevolent Father of All.
“I, Oliver P. Tharp, a resident of Hamilton township, in Warren county, state of Ohio, being of full age and sound memory, do make and publish this, my last will and testament. '
‘ ‘ Item 1st. It is my will that my just debts, and all lawful charges be paid out of my estate.
“Item 2d. All the remainder of my estate, both real and personal, including my real estate in said Hamilton township, and elsewhere, of which I may die seized, and all bonds, stocks, securities and chattel property of any and all descriptions whatsoever, which I may own at the time of my death, I give and devise to my beloved wife, Eachel S. Tharp, forever and to be and remain under her sole control, so long as she shall live.
“Item 3d. Should the chattel property which may remain after paying my debts as aforesaid, and the income from the real estate of which I may die seized, prove to be insufficient for my said wife’s maintenance in comfort then in that case, I authorize and empower her to sell, by private sale or in such manner, upon such terms of credit, or otherwise, as she may think proper, any part of, or all of my real estate, and deed or deeds, to purchaser or purchasers to execute, acknowledge and deliver in fee simple, so that she may be enabled to live absolutely comfortable, and in accordance with her station in life.
‘ ‘ Item 4th. I hereby authorize and empower my said wife, to sell and convey in fee simple, at any time after my death, should she deem it expedient so to do, my real estate, or any part thereof, situate in said Hamilton township; and I direct, that in the event of such sale, she invest the net proceeds thereof in some profitable manner, provided always that said proceeds are not necessary for her support.
‘ ‘ Item 5th. At the death of my said wife, I give and devise to my granddaughter, Edna C. Tharp, the sum of five thousand dollars ($5,000) ; provided that so large an amount of my estate is found to be remaining at the death of my wife. If however there should not be such amount remaining, then and in that case I give and bequeath unto the said Edna C. Tharp such amount as may be found (less than five thousand dollars) remaining of my estate. I further direct that, should my said wife die before the said Edna arrives at the age of eighteen years, the said sum of five thousand dollars, or fractional part thereof, be invested in some secure manner,- and that the same remain so invested until the said Edna arrives at said age, when I desire that she receive into her own control the said sum, with the increase thereof.
“Item 6th. At the death of my said wife, should there be remaining of my estate and property a sum greater than five thousand dollars, I give and bequeath the remainder thereof to my son, Willis P. Tharp.
“Item 7th. I do hereby nominate and appoint my said wife as executrix of this my last will and testament, desiring that she manage my estate in all things as she may conceive to be for the best interests of the same, and for her own interests and I direct that she be not required to enter into bond for the performance of her duties as such executrix, and I desire that the appraisement of my personal property be dispensed with, unless some reason to me not known shall render the same necessary. I desire that M. W. Conway of Hamilton county, Ohio, act as legal adviser for my executrix, should she stand in need of legal advice in the execution of any of the several provisions of this, my last will and testament.
“Item 8th. Whereas, I now own one hundred shares of stock in the ‘Cincinnati Consolidated Street Railway Company’ of Cincinnati, Ohio, which stock I consider to be worth at least its full face value; now therefore, should I continue to own same at my death, and should the same not be consumed in the support of my said wife during her lifetime, then and in that case, I desire that the same be given to my granddaughter Edna C. Tharp in lieu of ‘the sum of five thousand dollars,’ as provided for in ‘ Item 5th, ’ of this last will and testament, upon the same condition as to age of said Edna, and death of my said wife, as are named in said ‘item.’
“Item 9th. Desiring to avoid any and all confusion or contention which may possibly arise after my death, in regard to the location of my real estate, as set forth herein in ‘Item 2d,’ I will state that I intend my real estate situate in Hamilton township, Warren county, Ohio, and in Hamilton county, state of Ohio, and wherever else I, may own real estate at the time of my death, to come under the provisions of said ‘item.’ I revoke all former wills by me made.
“In testimony hereof, I have hereunto set my hand and seal this 19th day of February in the year 1894.
his
“Oliver P. Tharp, X (Seal),”

Mrs. Tharp, the widow, declined to qualify as executrix of the will, and Willis P. Tharp, only child of the deceased, was on March 13, 1894, appointed administrator with the will annexed, giving bond on the same day. He published due notice of his appointment, as required by law, and thereafter acted as administrator until his resignation, which will be hereafter referred to. On February 8, 1898, the sureties on the former bond having been released, Willis P. Tharp gave a new bond in the sum of $25,000 with this defendant as surety thereon. Willis P. Tharp filed various accounts, all of which were approved, and thereafter, • on June 6’ 1904, his resignation was filed and his final account was approved and his' resignation was accepted. Willis P. Tharp died and the plaintiff, Edna Carol Tharp, his only child, brought this action to recover $25,000 against the United Státes Fidelity &' Guaranty Company, surety on his bond; Thé cause was- tried in February, 1912, and the facts heretofore set out appeared in evidence. In addition, the plaintiff offered to prove that Willis P. Tharp, as administrator, received from the sale of the property of his father’s estate about $25,000; that he appropriated this to his own use and accounted for it by filing in the probate court of Warren county accounts showing disbursements for his own personal expenses of all sorts, which accounts were confirmed and approved by the court; that the amounts so appropriated were not expended for his mother but for own use; that Willis P. Tharp died intestate September 5, 1908, and that Rachel S. Tharp, his mother, died in March, 1910; that Willis P. Tharp was the only child of Oliver P; Tharp and Rachel S. Tharp and that the plaintiff was the only child of Willis P. Tharp, and that Willis P. Tharp left a widow who is now living.

The court excluded so much of this testimony as tended to' prove the appropriation of the proceeds of the estate by Willis P. Tharp to his own use and that he accounted for these proceeds by filing accounts shoving the spending of it for his own personal purposes. Thereupon, upon motion of the defendant, the court directed a verdict for the defendant.

The main question presented by briefs and in oral argument is whether Willis P. Tharp took a vested remainder in the estate of his father, Oliver P. Tharp, under the provisions of the latter’s will; The theory upon which, this contention rests is that if the interest of Willis P. Tharp vested upon the death of his father, the plaintiff must claim as his heir at law and subject to his debts. If, on the other hand, her father took only a contingent remainder plaintiff may claim an interest as direct heir of testator, her father, the remainderman having died before any estate vested in him by virtue of the said will;

Another vital question occurring to the court, though not urged- in argument, is as to the right of plaintiff to maintain this action in her individual capacity even though the second alternative of above proposition be correct.

We are of the opinion that the proper procedure would be •by exceptions to the account or petition to set aside settlement of same in the probate court, and thus have the liability ascertained and claim presented to the surety by the legal representative of testator.

But according to our view of the case such proceeding would avail nothing, for we hold that the claim made by the surety company that "Willis Tharp took a vested remainder upon the death of his father is fully supported by the Ohio decisions cited, including the case of Johnson v. Johnson, 51 Ohio St. 446 [38 N. E. Rep. 61], cited in plaintiff’s brief. Also Baxter v. Bowyer, 19 Ohio St. 490.

The estate of Willis Tharp would, therefore, be the recipient of any amount that might be adjudged owing by and recovered from the defendant surety, which sum, in turn, would constitute a valid claim of the surety company against his estate,, so that it will be seen no benefit could be derived by this plaintiff and she could have no capacity to sue in this action, not being a party in interest.

For these reasons the judgment will be affirmed.

Judgment affirmed.

Swing and Jones, O. B., JJ., concur.


author: SHIELDS, J.

text:
    RESTRAINT OF TRADE.
    [Coshocton (5th) Court of Appeals,
    1914.]
    Yoorhees, Shields and Powell, JJ.
    Age Publishing Co. v. Times Publishing Co.
    Contract of Newspaper Publisher to Withdraw from Evening Field for Consideration, Not in Restraint of Trade. '
    An agreement entered into between two corporations owning newspapers, both published in the evening in the same city, providing that in consideration of a sum of money specified and to be paid in due course orie of said publications should be changed from an evening to a morning paper, and further that for a period named the said company would not again enter the evening newspaper field in that city, is not a contract in restraint of trade, and an action lies for damages on account of its .breach.
    [Syllabus by the court.]
    Error.

      G. R. Bell, for plaintiff in error.

      W. S. Merrell, for defendant in error.
   SHIELDS, J.

This case conies into this court upon a petition in error and a cross petition in error on the part of the defendant in error. The plaintiff in error complains because the court below erred in dismissing its petition, and the defendant in error complains because said court erred in refusing to grant the relief prayed for in its cross petition.

In its petition filed in the court below the plaintiff alleged, in substance, that both it and the defendant at the time of the commencement of the proceedings herein were engaged in publishing evening newspapers in the city of Coshocton, Ohio — the newspaper published by the plaintiff being known as the Coshocton Age, and the newspaper published by the defendant being known as the Coshocton Times; that both the plaintiff and defendant are corporations under the laws of Ohio, doing business in the city of Coshocton, Ohio; that on March 28, 1912, said companies entered into a certain contract in writing whereby the defendant in error, defendant below, for a valuable consideration to be paid it by the plaintiff in error, plaintiff below, agreed that not later than April 16, 1912, it would cease to publish its said newspaper as an evening newspaper and would publish it as a morning newspaper, and that it would not return to the evening field or publish its said newspaper as an evening newspaper for a period of at least two years; that the defendant failed to carry out the terms of said contract and committed a breach thereof in returning to the evening field and publishing the said Coshocton Times as an evening newspaper on or about January 1, 1913, contrary to' the terms of said contract, and ever since said time the said the Coshocton Times has continued to be published as said evening newspaper, to the damage of the plaintiff in the sum of $1,000; for which said sum judgment is prayed for against the defendant.

To this petition the defendant filed an answer and cross petition, and for answer admits that said companies on March 28, 1912, were engaged in publishing newspapers in Coshocton, Ohio, as set forth in said petition; that on said date said companies entered into a contract in writing whereby the defendant for a valuable consideration to be paid to it by plaintiff agreed that it would commence not later than April 16, 1912, to issue its daily newspaper in the morning instead of in the evening, and would not return to the evening field before at least two years from the date of said contract, and it denies all the other allegations of said petition.

By way of cross petition the defendant set forth therein a copy of said contract by the terms of which the plaintiff agreed to pay the defendant for said change in the publishing of its newspaper from an evening to a morning publication the sum of. $1,000, of which said sum the sum of $83.33 was to be paid on the execution of said contract, and $83.33 was to be paid on the first day of each of the succeeding eleven months until said full sum of $1,000 was paid, said installments not to bear interest until due, and all payments to be made at the Coshocton National Bank in Coshocton, Ohio; that the defendant on April 16, 1912, commenced to issue its newspaper in the morning instead of the evening and so continued until December 9, 1912, when it sold all of its property and assets, except accounts and contracts, to Edward Compton and John W. McDowell, and since that time it has not published any newspaper of any kind, and the defendant says it has thereby fully complied with all the terms and conditions of said contract on its part to be performed; that the plaintiff has paid on said contract the sum of $666.64, leaving due and unpaid thereon the sum of $333.36, payable in four separate monthly installments of $83.33 each, with interest as set forth in said cross petition, and asked judgment therefor.

A demurrer was filed to the second defense and cross petition of the defendant set up in its answer, for the reason that the same does not state facts sufficient to constitute a defense in law. This demurrer searches the record and of course reaches back and tests the sufficiency of the petition.

The view we take of this case renders it unnecessary to consume much time in disposing of it on demurrer. Considering the allegations of the petition in connection with the manifest object of the two companies entering into said contract, as disclosed by the terms of said contract, we are at a loss to see wherein said contract is in general restraint of trade within the intent and meaning of the anti-trust law. Under the terms of said contract said publications were to be and were issued daily as theretofore as long as the Coshocton Times continued to be published by the defendant in error with no diminution to its patrons in the matter of advertisement or otherwise. True, under the contract made, no interest in or good will of this publication passed to the Age Publishing Company, the sole object of said contract being that the Coshocton Age retained the evening field and the Coshocton Times occupied the morning field, the object and effect being in no wise to stifle'competition, but simply to enhance the business interest of each publication. While contracts in general restraint of trade are to be regarded as contrary to public policy and therefore void, we are not prepared to say that the contract made between the parties hereto is of that character, and we therefore hold that the court below erred in holding that said petition was demurrable. This view of the case also disposes of the demurrer to the cross petition.

The judgment of the court below in sustaining said demurrer is reversed and said cause is remanded to said court for further proceedings according to law. Plaintiff will be granted leave to file a reply in thirty days from this date. Exceptions may be noted on behalf of both parties hereto.

Yoorhees and Powell, JJ., concur.


author: RICHARDS, J.

text:
    ACTIONS — DEATH—PARTIES.
    [Clark (2nd) Court of Appeals,
    December 11, 1913.]
    Chittenden, Richards and Kinkade, JJ.
    Erie Railway v. Dump, Admx., et al.
    1. Common-law Child of Deceased May be Made Party and Plead, In Action for Death by Wrongful Act.
    In an action to recover'damages for death caused by negligence, where the petition avers that the decedent left no widow or children and that his father, mother, brother and sister are his next of kin, it is not error for the trial court to allow a child by a common-law marriage to be made a party and file a pleading in which she avers that her mother, brother and herself are the next of kin of the deceased, and thus enable the court to protect the rights of the true beneficiaries.
    2. Failure to Look for Approaching Train at Proper Time Constitutes Contributory Negligence, Requiring Reversal.
    Where the deceased met his death while driving over a railroad crossing in the country, and the evidence shows that the train was approaching at twenty-five to thirty miles an hour, and that, if he had looked at a time when looking would be effective, he could, in the exercise of ordinary care, have seen the engine in time to avoid injury, and no reasonable excuse exists for failing to look, the decedent is guilty of such contributory negligence as requires a reversal of the judgment rendered in favor of the plaintiff, the same being against the weight of the evidence on contributory negligence.
    [Syllabus by the court.]
    Error.

      Zimmerman & Zimmerman, M. Ray Weikart and Cushing, Siddall & Lyon, for plaintiff in error.

      Keifer & Keifer, for Harriet I. Dump, administratrix.

      George C. Rawlins and C. V. Collins, for Florence Ruth Dump.
   RICHARDS, J.

In the court of common pleas Harriet I. Dump, as administratrix of the estate of Franklin Dump, deceased, brought an action against the Erie Railroad Company, under Sees. 10770 and 10772 G. C., to recover damages arising from the death of Franklin Dump, which she alleged was caused by the negligence of the railroad company.

In her petition she averred that Franklin Dtunp was forty-four years old at the time of his death, was unmarried and left no widow or children, and that he left as his next of bin a father, Samuel B. Dump, a mother, Harriet I. Dump, a brother, Harry S. Dump, and a sister, Mrs. C. D. Koontz.

Florence Ruth Dump applied to the common pleas court for leave to be made a party to the litigation, and was granted leave to come in and file a pleading, which she did, denominated an answer and cross petition.

In this pleading she set up, through her guardian to the suit, that Franklin Dump died leaving a widow, viz., Mary Dump, and two children, to wit, Alfred McKinley Dump and herself, Florence Ruth Dump; that Mary Dump was his common-law wife, and that Alfred McKinley Dump and herself are the offspring of such common-law marriage; and averred that they had been damaged by the death of said decedent, and she asks that the action might be prosecuted for their exclusive benefit and that the plaintiff might recover damages for such purpose.

Issue was taken on the allegations of this answer and cross-petition. The trial resulted in a verdict and judgment in favor of the plaintiff administratrix in the sum of $1,500, the jury finding, in a separate verdict, that Alfred McKinley Dump and Florence Ruth Dump are the legitimate children and only next of kin of Franklin Dump, deceased.

An interesting question arises in this ease as to the legality of the action of the trial court in permitting Florence Ruth Dump to intervene as a party in the action and deny that the persons claimed in the petition to be the next of kin were such and aver that she and her brother and mother are the only next of kin.

The action brought by the plaintiff is one Brought under favor of the statute, and did not exist at common law. The right of next of bin, who may be omitted as such in the petition filed by the administratrix and in the answer of the defendant, to come in and set up their claim, is not expressly provided for by statute, but to hold that the law will not allow such next of kin to intervene and set up their claim would be to turn the statute, in some cases, from a beneficent one, designed to aid in the administration of justice, into an engine of oppression.

Cases will readily occur to the mind where persons averred in the petition filed by an administratrix to be next of kin may have suffered little, if any, pecuniary damage by reason of the ■death of the decedent, while other persons, who are in truth the next of kin, may have suffered by that death large damages.

It is not infrequent, in cases of this character, that one or more of the next of kin have been guilty of contributory negligence, as in the case of Wolf v. Railway, 55 Ohio St. 517 [45 N. E. Rep. 705; 36 L. R. A. 812]. If the true beneficiaries are not named in the petition nor their rights asserted by the answer of the defendant charged with negligence, we hold it entirely proper that such persons may intervene, on leave of the court of common pleas first had therefor, and by appropriate proceeding set up the facts so that the rights of all the parties may be determined in one action.

It is worthy of note that the statute in force at the time of the death of Franklin Dump allowed a different maximum .amount as damages, depending on whether the next of kin were children or others more remote in their relationship to the ■decedent.

We call attention to Pittsburgh, C. C. & St. L. Ry. v. Pritz, 34 O. C. C. 411 [16 N. S. 10]. In that case the decedent was , the father of two living children not named in the petition. The recovery- was for the maximum amount allowed by the statute, and the court, in the course of the opinion, point out the liability of the defendant company to subsequent suits for the - same negligent acts if the recovery had been for a less sum than the maximum amount then allowed by law, as was the result in the case now under consideration.

Other circumstances might well exist of such a character as would indicate that injustice would arise if the rights of those who were the actual next of kin were not set up.

For instance, suppose the administrator would aver that ■the next of kin was an aged person who had never received any pecuniary advantages from the decedent, while in fact there were minor children of the decedent living who were the next of kin and who had been supported by him. In all such cases, in order that the rights of the parties may be worked out by the courts, it is necessary that the interests of the actual beneficiaries be protected at the trial.

We hold, therefore, that the trial court committed no error in allowing Florence Ruth Dump to intervene in the action.

The bill of exceptions contains all of the evidence offered on the trial and is very voluminous. Numerous errors are assigned why the judgment is wrong and should be reversed, one, among others, being that it is not sustained by sufficient evidence.

It appears from the evidence that the death of Franklin Dump occurred on January 9, 1912, in this county, at a public crossing of the track of the Brie Railroad Company, in a little hamlet called Snyderville, consisting of a few dwelling houses.

The injury occurred between 4:30 and 5 o ’clock in the afternoon of a very cold winter’s day, with a strong wind blowing from a westerly direction and more or less snow falling.

Dump had lived at or near Snyderville nearly all his life, and was entirely familiar with all of the surroundings. He started to drive in a one-horse spring wagon on the occasion in question, along what is called the Pole Cat road, in a southerly direction, then passed westerly for some four or five hundred feet to another road known as the West road. When reaching, the so-called West road, which runs nearly north and south, he drove in a southerly direction on that road, approaching the crossing where he met his death. As he neared that crossing a passenger train on the defendant company’s line was coming from the east at a rate of speed of twenty-five or thirty miles an hour.

There is much conflict in the evidence as to certain obstructions to his view, which are claimed to have existed, in the way of piles of railroad ties, the evidence being conflicting as to the number of piles, their location and height.

It appears from the testimony of a girl of about thirteen years of age, named Jennie Calloway, who was called as a witness by tbe plaintiff Harriet I. Dump, that she saw the accident while she was standing on the porch of her father’s residence, which is located about one hundred and fifty feet northwesterly of the crossing where the accident occurred. She saw the train approaching and saw Dump just as the front feet of his horse reached the northerly rail of the track, and she says that he had his right hand up to his ear, his cap drawn down over his head, and that as she saw him he looked to the east and to the west.

The horse, when hit, was going about three miles an hour and was about midway of the track.

The only evidence in the case showing, or tending to show, that the decedent looked is the testimony of Jennie Calloway, and it shows that if he looked at the time she says he did, it was at such a time as would be ineffective to protect him from danger.

It seems clear from the evidence that if he had looked when he was fifteen or twenty feet from the track he could readily have seen the approaching train.

There is some evidence, it is true, of a depression in the road and some conflict as to the condition of the weather and, as already stated, the location and size of the piles of ties, but as the record stands we do not see that reasonable men could differ as to reaching the conclusion that if he had looked at the proper time he could, in the exercise of ordinary care, have seen the engine and preserved his life. Even at the highest rate of speed of the train, as given by any witness, the train must have been as near to the crossing as the pile of ties at the time when he was fifteen or twenty feet from the track.

Some witnesses testify that from a point very near this crossing a train could be seen eastwardly on the track for a distance of a mile or more.

Without undertaking in detail a review of the evidence, which we refrain from doing for the reason that the ease is to be remanded for a new trial, we are unanimous in the opinion that so far as the contributory negligence of the decedent is concerned the verdict is not sustained by sufficient evidence.

The ease seems to have been very carefully and skillfully tried. While many errors are assigned, we have found none which are prejudicial except the one relating to the weight of the evidence. For this error the judgment will be reversed, and the case remanded for a new trial.

Judgment reversed and cause remanded.

Chittenden and Kinkade, JJ., concur.


text:
    INTOXICATION — MASTER AND SERVANT.
    [Lucas (6th) Court of Appeals,
    January 5, 1914.]
    Kinkade, Richards and Chittenden, JJ.
    William J. Barrett v. Pere Marquette Railway.
    Ordinary Care Required of Intoxicated Employe.
    Voluntary intoxication will not relieve an employe from the duty of exercising such ordinary care to avoid injury to himself as is required under like circumstances from sober men.
    [Syllabus by the court.]
    Error.

      G. B. Keppel, for plaintiff in error.

      J. H. Tyler, for defendant in error.
   RICHARDS, J.

In the court of common pleas William J. Barrett brought an action to recover damages for the loss of an arm, caused, as, claimed by him, on account of the negligence of the defendant company while he was in its employment as a yard switchman at Flint, Michigan. The injury occurred about 11 o’clock at night on December 11, 1909. At the conclusion of the evidence offered on behalf of the plaintiff, the trial judge directed the jury to return a verdict in favor of the defendant company,, which was done, and judgment entered accordingly.

It appears from the evidence in the case that when Barrett went to the yards of the company in Flint to go on duty, about, 6:30 o’clock in the evening of December 11, he was in an intoxicated condition, and that fact was known to his superior officers. Shortly after that hour he was directed by Grant, the yard conductor of the crew, to go into the yardmaster’s office and lie down, which Barrett did. About 9 o’clock at night, while he was still in the yardmaster’s office, the telephone rang. He answered it and was told over the telephone to get out and go to work. It does not appear that Mr. Sharroek, who gave that order over the telephone and who was the night yardmaster, had knowledge that Barrett was intoxicated at that time. It appears from the testimony of Mr. Grant that when Barrett came back to work he said to the engineer, “I am going to let the brakes off, ’ ’ and that he then started to go on top of the car for that purpose. Grant states in reply to an inquiry as to 'what Barrett’s condition was as to being intoxicated, that he couldn’t say, that he was not very close to him then. Barrett, following his statement that he was going to let the brakes off, climbed to the top of the freight car next to the engine. He says that in attempting to release the brake he fell off the top of the car and that his arm was run over by a passing freight train on an adjacent track. He furnished to the company on January 24, 1910, a statement in writing of the circumstances of his injury, in which statement he says:

“I was letting brakes off cars and came to one that was pretty tight and was swinging on brakes and had to kick the dog, and when the dog let go the ratchet there was so much pressure on brake that it came around so quickly that it threw me off car and fell under moving ears on next track. ’ ’

He also says in this written statement that the accident was not caused by any bad condition of the tools or machinery and that no person was at fault. Nowhere in the testimony of the plaintiff does he attempt to explain or contradict the written statement made by him and furnished to the company within a few weeks of his injury. He does say, however, in his testimony, that after he climbed to the top of the car he has no knowledge of what occurred, until after his injury, and that the first thing he recalls after the injury was his trying to get on the engine, not knowing that his arm was off.

The rule of law as to the contributory negligence of an intoxicated person has been often laid down by the courts and is not susceptible of doubt. It is well stated in 29 Cyc. 534, as follows:

“The condition produced by intoxication being voluntary does not relieve the person injured from the necessity of exercising the ordinary care to avoid injury required under like circumstances of a sober man.' Intoxication alone is not a bar to recovery, unless by reason of such intoxication he fails to exercise the ordinary care of a sober man, or is unable to take the proper precautions to avoid danger. Tet intoxication in any degree is a circumstance to be considered in determining the question of contributory negligence.”

Also to the same effect is Vizacchero v. Rhode Island Co. 26 R. I. 392 [59 Atl. Rep. 105; 69 L. R. A. 188].

The evidence in this record leaves no room for doubt that the plaintiff was guilty of contributory negligence directly producing his own injury. It is said, however, that notwithstanding this he may recover because of the claim that the defendant company had knowledge of his condition, and much reliance is placed by counsel for plaintiff on the case of Parker v. Railway, 83 Minn. 212 [86 N. W. Rep. 2]. In that case there was no notice or knowledge of the condition of the employe conveyed to the company, and the court said that it assumed, without deciding, that if the conductor or brakeman was fully apprised of the intoxicated condition of the deceased and his consequent peril, it was his duty to take active and reasonable measures for his protection. Whatever may have been said on that matter in the course of the opinion would naturally be obiter dictum. We are not, however, disposed to quarrel with the rule stated if it be construed to mean that the company be rendered liable if it first had knowledge that its employe was in such a state of intoxication as to be unconscious of his own danger or unable to protect himself from injury.

The evidence in the case at bar does not show that the defendant company had knowledge that the plaintiff was, at 11 o’clock at night, in such a helpless or unconscious state of intoxication as rendered him unable to appreciate danger or unable to protect himself therefrom. It appears from the evidence that the plaintiff did in fact know the conditions surrounding him in the company's yard. He knew that his engine was coupled to cars, was on the set-off track and that the brakes were set. He knew that it was his duty to go on top of the cars that were to be switched, and that the cars could not be moved until the brakes had been released. He knew, without being told, that it was his duty to go on top of the cars and release the brakes, and he had the ability to climb on top of the cars for that purpose and did so voluntarily. We think it plain from the evidence that the defendant did not have such knowledge as to the condition of the plaintiff, at 11 o’clock at night, as required it to conduct itself in any different manner from what it did on the occasion under inquiry, and that therefore it does not appear that the defendant was guilty of any actionable negligence. We are satisfied from the whole case, as contained in the record, that substantial justice has been done, and the judgment of the court of common pleas will be affirmed.

Judgment affirmed.

Kinkade and Chittenden, JJ., concur.


author: JONES, O. B., J.

text:
    TRUSTS AND TRUSTEES — WILLS.
    [Hamilton (1st) Court of Appeals,
    December 2, 1913.]
    Swing, Jones and Jones, JJ.
    Barbour et al., Tr. v. Gallagher et al.
    Income Arising After Termination of Trust Distributed According to . Will.
    Income arising after the termination of the trust under which this estate has been held follows the property and should be distributed in accordance with the provisions of the will.
    [Syllabus by the court.]
    Motion.

      J. B. Foraker, for Mary Swigert.

      John J. Acomb, for estate of Laura B. Capron.

      Mallon & Vordenberg, for Harriette 0. Goodloe.

      Harmon, Colston, Goldsmith <& Hoadly, for the trustees.
   JONES, O. B., J.

The question here presented is on motions filed by several beneficiaries for distribution of the income from certain property held by trustees under the will of James Smith Armstrong. The will provided:

“Seventh. All the rest, residue and remainder of my estate real, personal and mixed, whatsoever and wheresoever, I devise, give and bequeath to my executors and trustees hereinafter named, and the survivors and successors of them, in trust, nevertheless : * * *
‘ ‘ Fourth. Now as to the manner in which the income arising from my said property both real and personal shall be divided, I hereby order and direct my hereinafter named executors and trustees, and as one of the conditions of their trust to divide the net revenue and income of my property, real, personal and’ mixed to them hereinbefore devised and bequeathed, in the following manner, to wit:
“They shall divide said net income and revenue into equal parts, and pay the same semiannually as follows: * * *
“One part to my niece Laura Capron during her natural life and after her death to any child or children of her body surviving her or to the issue of such child or children. # * *
“One part to my brother Frank W. Armstrong during his natural life and after his death to any lawful child or children of his surviving him, or to the issue of such child or children; *
“One part to my sister Amelia A. Mannen during her natural life and after her death to any child or children of her body surviving, or to the issue of such child or children;
“Eighth. When all my sisters, nieces, nephews and my brother Frank W. Armstrong who are hereinbefore made beneficiaries of the income and revenue arising from the real and personal property hereinbefore devised in trust shall have deceased, it is then my will that the successors of my hereinafter named executors and trustees, or said executors and trustees themselves if then living, shall proceed without delay to divide such real and personal property, or the proceeds thereof should it be found necessary to sell for cash a part or the whole of such property to carry out equitably the objects and purposes of this my last will and testament, and to divide such property or the proceeds thereof into as many equal parts as there will be then surviving children of my aforesaid nephews, nieces and of my brother Frank W. Armstrong, and to make over, transfer and give to each one of said surviving children one of said equal parts, to have and to hold the same absolutely forever. ’ ’

The Supreme Court of Ohio has decided that the trust created by this will was terminated on July 17, 1911, by the death of Mrs. Capron, who was the last of the named beneficiaries. The testator having died on March 10, 1883, the executors made the first distribution of income September 10, 1883, and since that time distributions have been made regularly on the tenth of each September and March — the last of such distributions being March 10, 1911.

The question now presented to the court is whether the income accumulated between March 10, 1911, and the date of the death of Mrs. Capron, July 17, 1911, should be distributed among the beneficiaries of the income, or whether because ordinarily it would not have been payable until September 10, 1911, this income should be added to the corpus of the estate and distributed among the persons entitled thereto as provided by item eighth.

From a careful reading of the parts of the will quoted above it will be seen that the testator distinguishes clearly between the “beneficiaries of the income and revenue arising from the real and personal property hereinbefore, described devised in trust, ’ ’ and those to whom the principal was to be distributed at the termination of the trust. Laura Capron, the last surviving named beneficiary of the income, whose death terminated the trust, was to receive one part of this income during her natural life. The provision as to the payment of that income semiannually was evidently made for the convenience of the trustees, and could not, under the language used in the will, be construed to prevent the estate of Mrs. Capron from receiving her proportionate share of such income for the full term of her life.

Mrs. Swigert, as the daughter of Frank W. Armstrong, and Harriette A. Goodloe, as the daughter of Amelia A. Mannen, and the other beneficiaries of the income, were also entitled to receive their proportionate shares of the income during the life of the trust.

In other words, it became the duty of the trustees to collect revenue and income from the property held by them, and after deducting expenses to divide same into as many equal shares as there were then surviving beneficiaries, and instead of making division of each sum of money as it came in, the will provided that this income should be paid semiannually.

The trust not having been terminated upon one of these semiannual dates, it becomes necessary to make a final division of this income on the date of the termination of the trust. Had it been practically possible to make immediate division of the corpus of the property on the day of the termination of the trust, that would have been the duty of the trustees; but as that was impossible, any income arising after the termination of the trust would follow the property and become part of the fund to be distributed under item eighth.

The rules of apportionment between life tenants and remaindermen have been ably presented by counsel and many cases cited, but in the opinion of the court it is not necessary to discuss or consider them.

The property in the hands of the trustees consisted of real estate, railway, street railway, gas and water company stocks, and municipal and railroad bonds. Dividends on these stocks not yet declared would of course not be apportionable, but those declared and collected would be already income in the hands of the trustees and would be apportionable as such. The interest on the bonds and the rentals of the real estate would become due day by day, and would be apportionable. It has been argued, however, that as the title to the property itself was in the trustees the distribution of income to the beneficiaries, was in the nature of an annuity and therefore rules of the common law forbidding the apportionment of annuities apply, and that no part of the income accumulating after the last semiannual distribution could be distributed to the beneficiaries of the income. We can not agree that a proportionate share of this income constitutes an annuity.

Taking, however, the rules of apportionment as they existed under the common law and as modified later by the statutes and decisions, if they were applied to the determination of the question of division of the property in the hands of the trustees, we are of the opinion that it would result in the same division that we have found necessary to carry out the intention of the testator as expressed in the will.

It is therefore ordered that the trustees make the apportionment of the income to the beneficiaries entitled thereto as stated above.

Judgment accordingly.

Swing and Jones, E. H., JJ., concur.


author: RICHARDS, J. Kinkade, J., I

text:
    ERROR — MASTER AND SERVANT.
    [Lucas (6tb) Court of Appeals,
    January 11, 1913.]
    Wildman, Kinkade and Richards, JJ.
    Joseph Brown, Admr. v. James Dusha.
    1. Furnishing Employe with Vicious Horse to Perform Work without Informing Him of its Dangerous Character Breach of Duty.
    In an action to recover damages for the death of one who is alleged to have been in the employment of the defendant and to have met his death by the negligence of the defendant, the claimed breach of duty being the furnishing the employe with a vicious horse to drive in the performance of his work, without informing him of its dangerous character, the action is based on the breach of a duty which the master owes to his servant as such, and it is not a duty owing to a mere volunteer.
    2. Finding that Plaintiff was not Employe, and Court’s Charge Being Free from Error on issue Judgment for Defendant Affirmed.
    Where, in such case, the bill of exceptions contains all of the evidence and would justify a finding by the jury that the deceased was not an employe, and the charge of the court is free from error on that branch of the case, a judgment for the defendant will be affirmed on the authority of Sites v. Haverstock, 23 Ohio St. 626, and McAllister v. Hartzell, 60 Ohio St. 69, whether error does or does not exist in a matter relating exclusively to another issue.

      3. Inference from General Verdict for Defendant Implies Finding of Nonemployment of Plaintiff as Servant.
    In such an action, where the answer denies that the deceased was an employe and alleges contributory negligence, and the jury returns a general verdict for the defendant, the inference arises that the jury found that the deceased was not an employe.
    TSyllabus by the court.]
    Error.

      A. Gr. Duer, for plaintiff in error.

      Friedman, Taylor & Foster, for defendant in error.
   RICHARDS, J.

In the court of common pleas the plaintiff, Joseph Brown, brought an action as administrator of the estate of Phillip Zielinski to recover damages by reason of the death of Zielinski, alleged to have been caused by the negligence of the defendant. It appears that Zielinski, who was seventeen years of age, was driving a horse and wagon, the property of James Dusha, in the city of Toledo on August 28,1911, working as a huckster. On the date named Zielinski was kicked in the abdomen by 'the horse and died soon thereafter. The case was tried to a jury and resulted in a general verdict in favor of the defendant. The petition alleged substantially that the defendant was the owner of a horse and wagon which he used in delivering vegetables and other products as a huckster and that he loaded the wagon on August 28, 1911, with fruit and vegetables and employed Zielinski to drive the horse, which was attached to the wagon, for the purpose of selling and delivering said vegetables and other products to the customers of the defendant. The plaintiff alleges that the horse, as defendant knew, was vicious and dangerous to drive and that it was dangerous for any person 'to sit on the wagon at the place provided by the defendant, after the wagon was so loaded, and that Zielinski did not know that it was dangerous for him to sit in the place provided for him by the defendant. The petition charges that defendant was aware of Zielinski’s ignorance of such fact, failed to inform him or to provide a kicking-strap for the horse and failed to provide Zielinski with a safe place in which to sit while driving the horse.

The defendant in his answer denies that Zielinski was in his employment on the occasion in question, denies all negligence ■and avers that Zielinski himself was guilty of negligence which directly contributed to his death.

Numerous errors are assigned by the plaintiff, but in the view we take of the ease it will not be necessary to consider in detail all of them. It will be seen from the pleadings that there were at least three issues in the case, namely, a denial that Zielinski was on the occasion in question in the employment of Dusha, the negligence of Dusha and the contributory negligence of Zielinski. The verdict, being general in form, amounts to a finding on all the issues in favor of the defendant, Dusha. ¥e are authorized, therefore, to infer that,the jury found from the evidence that Zielinski on the occasion in question was not a servant of Dusha. The trial court in the general charge said to the jury in substance that if they found that Zielinski was not at the time a servant of Dusha and was not working for Dusha, then the plaintiff could not recover, and this charge, it is insisted, is such prejudicial error as requires a reversal of the judgment. It is argued on behalf of the plaintiff that the averment of the employment of Zielinski by Dusha is an immaterial allegation, and that other allegations of the petition are sufficient to warrant a judgment.in the plaintiff’s favor if those allegations are sustained by the evidence.

A careful examination of the allegations of negligence contained in the petition discloses the following: First, that the defendant owned a vicious horse which he used in delivering vegetables and other products, by reason of which it was unsafe to sit on the wagon in the place provided; sécond, that defendant knew the horse was vicious, or would, by the exercise of ordinary cáre, have known it, and that the decedent did not know that fact; third, that the defendant failed to inform Zielinski that the horse was vicious or that it was dangerous to sit on the wagon, failed to provide a kicking-strap and failed to provide a safe place to work. Of course, if the jury found from the evidence that Zielinski was not employed, on the occasion in question, by the defendant, then it is clear that the defendant owed him no duty to give him information of the vicious character of the horse or that it was dangerous to sit on the wagon, and owed him no duty to provide a safe place to work. The whole case, as set forth in the petition and as developed by the evidence offered by the plaintiff, rests on the breach of a duty to use ordinary care for the safety of an employe. The breach of duty which is alleged is the breach of that duty which the defendant owed to Zielinski, if Zielinski were his servant, that is, to inform him that the horse was vicious, that it was unsafe to sit on the wagon in the place provided and the duty to exercise ordinary care to provide a safe place for the servant to work. It will be noted that no application to amend the petition was at any time made, and whatever might be the law, if the petition had been amended in any respect, it is certain that the right of the plaintiff to recover can only be based upon the allegations of negligence as contained in the petition. The duty mentioned is not one owing to a stranger, a mere volunteer. The petition contains no charge of negligently keeping a vicious animal in a public place or in a highway wherfe people were accustomed to pass, as in Hayes v. Smith, 62 Ohio St. 161 [56 N. E. Rep. 879], nor does it contain allegations sufficient to bring the case within the rule laid down in Pennsylvania Ry. v. Snyder, 55 Ohio St. 342 [45 N. E. Rep. 559; 60 Am. St. Rep. 700]. It is simply a case where the pleader charges Dusha with the breach of certain duties which he owed as master to his servant, Zielinski, and therefore it was highly important that the evidence should establish the fact that Zielinski was in truth on this occasion an employe of Dusha. The case is controlled by the same principle that was applied in Baltimore & O. S. W. Ry. v. Cox, 66 Ohio St. 276 [64 N. E. Rep. 119; 90 Am. St. Rep. 583]. The court in that case, speaking through Shauck, J., say, on page 288: " There being in the present case neither allegation nor evidence that the fatal injuries were inflicted wilfully or intentionally, there can be no recovery unless there existed between the decedent and the company a relation which imposed upon it the duty of exercising care toward him. Although it was alleged in the petition that he was at the time of the accident in the service of the company and traveling on a freight train in obedience to its orders, the allegation was denied in the answer and refuted by the testimony of the plaintiff herself.”

In the case at bar the allegation-was denied in the answer and the denial was evidently sustained by the jury in its general verdict in favor of the defendant. The case but illustrates the principle so often announced that in the absence of wilfulness there can be no actionable negligence unless the duty is one which is created by contract or by operation of law. We find no error in the charge of the court upon the matter to which reference has just been made.

The case is one which is peculiarly within the rule applied in Sites v. Haverstock, 23 Ohio St. 626, and McAllister v. Hartzell, 60 Ohio St. 69 [53 N. E. Rep. 715], In the latter case the court say, on page 95, that “It is settled in this state that in a ease where the issues are such that a finding of either in favor of the successful party entitles him to the judgment rendered, the judgment should not be reversed for error in the instructions to the jury relating exclusively to the other issue.” It is insisted by the plaintiff that the court erred in other portions of the general charge, particularly in the charge relating to contributory negligence, and in failing to charge the jury on the law of comparative negligence in accordance with Secs. 6243 to 6245-1 G. C. It is not necessary to determine whether the sections to which reference has been made are applicable to this case, nor whether the court erred in failing to charge the jury on the law of comparative negligence, for if any such error were committed it would not justify a reversal in view of the law as stated in the eases just cited.

It is further claimed that the trial court erred in failing to grant a new trial on the ground of newly discovered evidence. It is sufficient to say on this subject that the newly discovered evidence set forth in the bill of exceptions is not of such a character as would have required a different verdict, and for that reason it is insufficient as a basis on which to grant a new trial.

Finding no error justifying a reversal, the judgment of the court of common pleas will be affirmed.

Judgment affirmed.

Kinkade, J., I

concur in the judgment rendered.

Wildman, J., concur


author: METCALFE, J.

text:
    EXECUTORS AND ADMINISTRATORS.
    [Monroe (7th) Court of Appeals,
    November 13, 1913.]
    Metcalf, Norris and Pollock, JJ.
    Urpman v. Urpman et al.
    Promissory Note not Chargeable as Assets in Hands of Maker as Administrator of Surety’s Estate Before Estate Required to Pay Same.
    Where the surety upon an unpaid promissory note dies and the principal maker thereof is appointed and qualified as administrator of such surety’s estate, the debt represented by such note is not chargeable as assets in the hands of the administrator, before the estate has been required to pay the same or it has been presented and allowed as a valid claim against the estate.
    [Syllabus by the court.]
    Error.

      Jeffers, Moore <& Devaul and Harry G. Shepherd, for plaintiff.

      Lynch & Lynch and Matz & Eremer, for defendants.
   METCALFE, J.

The facts necessary to an understanding of the questions involved in this case are briefly as follows: George H. Urpman was principal and Peter C. Urpman surety upon certain notes. Peter 0. Urpman died in 1906, and George H. Urpman and A. "W. Urpman, his sons, were appointed and qualified as administrators of his estate. Some of the notes in question have been reduced to judgment, but none of them has been paid. Thé notes were not included by the administrators in the inventory, nor did they charge themselves with them in their accounts as assets of the estate. Exceptions were filed to the inventory and accounts of the administrators on the ground that the notes should have been inventoried and that the administrators should charge themselves with them as assets in their hands. The exceptions were referred to a master commissioner for hearing and determination. In his report the master commissioner held as matter of law that the notes, including those reduced to judgment, are assets in the hands of the administrators under favor of Sec. 10691 G-. C. Exceptions to the finding of this master commissioner raise the only question to be determined here. There can be- no doubt that under the law of Ohio a debt owing cither by an executor or administrator to his decedent at the time of his death becomes assets in his hands as administrator or executor. Bigelow v. Bigelow, 4 Ohio 138 [19 Am. Rep. 591] ; Hall v. Pratt, 5 Ohio 72; Tracy v. Card, 2 Ohio St. 431; Raab, In re, 16 Ohio St. 273; Sec. 10691 G. C.

The question here is, where the surety upon a note dies and the principal maker qualifies as administrator of his estate, does the debt become assets in his hands as such administrator if neither the decedent nor his estate has been compelled to pay it? The master commissioner based his holding upon the authority of Yakey v. Strunk, 18 Dec. 726 (7 N. S. 177), a case which was affirmed by the circuit court. We do not doubt that that case was decided right on its merits; but the facts differ from the case at bar. There the principal maker became executor of the will of the deceased surety, and paid his own notes as they became due as claims against the estate out of the funds thereof. The opinion demonstrates clearly the duty of the executor to charge himself with the debt as assets under these circumstances. We do not, however, find ourselves in harmony with that part of the opinion which holds to the conclusion that the liability of the surety to his principal is an unqualified debt of the surety to his principal. The reason of the rule which requires the debtor upon becoming administrator of his creditor’s estate to charge himself with the debt is thus stated in Winship v. Bass, 12 Mass. 199: ‘ The executor having voluntarily assumed the trust, which prevents any other from receiving, and being unable to sue himself, he shall be considered as having paid the debt, and as holding the amount in his hands as administrator.”

In Shields v. Odell, 27 Ohio St. 398, it is held to apply only where the administrator or executor owes the debt individually and unconditionally. And in James v. West, 67 Ohio St. 28 [65 N. E. Rep. 156], it is said in the opinion, page 45: “While under the rule of decision of this court in Bigelow v. Bigelow, Hall v. Pratt and Tracy v. Card, supra, debts owing by an administrator to the estate are to be regarded and treated as assets in his hands, the rule is so far unsatisfactory that it should not be extended, but should be confined to cases in which the administrator owes the debt individually and unconditionally. The statute, Sec. 6069 R. S. (Sec. 10691 G. C.), when fairly construed, does not go further. ’ ’ Citing in support of this proposition Shields v. Odell, supra, and Bossman v. McFarland, 9 Ohio St. 369.

We do not think that the liability of the surety to the principal is an unconditional liability. The surety could not bring an action against the principal to recover the indebtedness until he has paid it. He may compel the creditor to proceed against the surety to collect the indebtedness. But having no right to sue the surety before the debt was due the reason of the rule that the administrator can not sue himself fails, for the case is no different in that respect than it was before the death of his decedent, while the creditor, that is, the holder of the note, may bring his action against the administrator, as such and also against him individually, as surety on the note. Hence, we think the rule does not apply in this case. Whether it will apply if the estate is compelled to pay the debt is not decided. The exceptions to the report of the master commissioner are sustained.

Exceptions sustained.

Norris and Pollock, JJ., concur.


text:
    CARRIERS — SPECIFIC PERFORMANCE.
    [Lucas (6th) Court of Appeals,
    January 25, 1913.]
    Wildman, Kinkade and Richards, JJ.
    John W. Taylor et al. v. Niles, Receiver, et al.
    1. Contract Between Landowner and Interurban Railway for Right of Way Stipulating Fare to Station Enforceable.
    A contract between a landowner and an electric interurban railroad company providing for a right of way for the company along a public highway extending by the owner’s property, and fixing a rate of fare of five cents from that point to the interurban station in a nearby city, is one which a court of equity will specifically enforce.

      '2. Binding on Subsequent Purchasers.
    Subsequent purchasers of the railroad property, with knowledge of the contract, are bound by its terms.
    3. Railroad Commission Act does not Abrogate.
    Such contract is not abrogated by the act, subsequently passed, establishing a railroad commission and providing for the fixing of rates for the transportation of passengers.
    [Syllabus by the court.]
    Appeal.

      Smith & Beckwith, for plaintiffs.

      King, Tracy, Chapman & Welles, for defendants.
   RICHARDS, J.

The plaintiffs, John W. Taylor and others, brought this action for the benefit of themselves and all others interested for .an order requiring the defendants to perform a contract providing for a rate of fare and enjoining the defendants from charging a fare in excess of that prescribed by the contract referred to in the petition. The ease was submitted upon an agreed statement of facts from which it appears that John W. Taylor was the owner in 1902 of a tract of about eighteen acres of land lying ■a short distance west of the western boundary of the city of Toledo, and that the Toledo & Indiana Railway Company was then obtaining a right of way for the construction of an interurban railway. The Taylor property, by the agreed statement ■of facts, lies on the north side of this public highway and extends to the center line thereof, subject to the right of the public to use the road as a highway. On July 11, 1902, Taylor and. the railway company entered into a contract by which he agreed to allow the railway company to construct its line of road on the north half of the public highway extending by his property, and the contract contained as one of its provisions a clause fixing the rate of fare from this property to and from the interurban station in the city of Toledo at five cents. The parties concede that this contract was valid at the time of its execution.

On April 16, 1906, the general assembly of Ohio passed a statute (98 O. L. 342) establishing a railroad commission and making provision for the regulation of railway rates. The railway company thereafter adopted and published a schedule of rates as required by the act and the same was approved by the commission. While the contract fixed a rate of fare of five cents from the Taylor property to and from the interurban station in the city of Toledo, the schedule rate as thereafter adopted and published by the railway company ignored this, agreement and fixed a rate of ten cents between said points. The line of railroad, after leaving the western boundary of the city, passes a station known as Calvary, which is 3.8 miles from the interurban station, and extending westerly passes next through a station or stop known as Reynolds, which is 7.2 miles, from the interurban station, while the Taylor property lies between Calvary and Reynolds.

In 1908 Niles was appointed by the common pleas court of this county receiver of the property of the Toledo & Indiana Railway Company, and in 1910 he conveyed the property, under an order of court, to the Toledo & Indiana Traction Company, which latter company thereafter, by deed duly executed and delivered, transferred said railway and all property and assets, which it had received by the sale under order of court to the Toledo & Indiana Railroad Company, which last-named company is now operating said railroad.

Taylor conveyed about half of his eighteen-acre tract to the Taylor Land & Improvement Company, and he owns nearly all of the stock of said corporation. It appears frpm the agreed statement of facts that at the time of the purchase of the property of the railway company by the traction company and the sale by the traction company to the railroad company, this suit was pending in the court of common pleas and that both the traction company and the railroad company had full knowledge of the execution and terms of the contract already mentioned.

The contention by counsel for defendants is well stated in their brief filed in the case, as follows:

“1. It is not a ‘covenant running with the land,’ and is therefore not obligatory upon it, as assignee of the Toledo & Indiana Railway Company, and cannot be enforced by the plaintiff, the Taylor Land & Improvement Company, as assignee of John W. Taylor.
“2. That by the enactment of what is commonly termed the public utilities act in the state of Ohio, the agreement has become superseded and invalidated, and can not be enforced.”

Multitudes of cases have been decided relative to covenants running with the land, and the discussions in textbooks upon that matter are very numerous. We shall not enter into, a detailed consideration of the subject. It is apparent that the contract which was made was of substantial value to the Taylor land and that in the language of the books it does “touch” and “concern” the land. It created an easement in this land, the fee in the highway occupied by the railway company being in the adjoining owner, which in this case was the plaintiff, Taylor. We do not think that this case, being one for the equitable consideration of the court, raises a question of a covenant running with the land so much as it raises a question of the right and duty of the court to enforce in equity a compliance with the contract under the circumstances shown. The case of Brown v. Huber, 80 Ohio St. 183 [88 N. E. Rep. 322; 28 L. R. A. (N. S.) 705], which arose in this county, afforded an opportunity for the Supreme Court, in the opinion to state certain principles on questions analogous to the one now under consideration. In the course of the opinion, on page 203, the court quote approvingly the following language:

“We understand, then, that it is a principle upon which all the court imite, that the right to equitable relief in these cases depends upon, the following considerations: First. A precedent' agreement, in some form, by which a restriction is imposed upon the lot owned or held by defendant for the benefit of the lot owned or held by the plaintiff. Second. In ease the agreement is made by the defendant’s predecessor in title, notice in some form to the defendant of the fact and nature of the agreement, either from the language of the title deed under which he holds, or otherwise. ’ ’
“* # # quests js¡ whether the covenant runs-with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased.” See also Lewis v. Gollner, 129 N. Y. 227 [29 N. E. Rep. 81; 26 Am. St. Rep. 516].

In view of the full notice which these parties had of the contract executed by Taylor and the railway company, containing a provision that it should bind the company’s successors and assigns, it would be highly inequitable to refuse to decree an enforcement of the same.

The other contention made by defendants, that the agreement has been superseded and invalidated by the statute above cited, can not receive the assent of this court. That act was under consideration by the Supreme Court in Railroad Commission of Ohio v. Railway, 82 Ohio St. 25 [91 N. E. Rep. 865], and while the matter there determined is not precisely the same as that now before this court, it is apparent from the opinion of the court in construing the statute that the courts in determining the lawfulness of a rate established by a railway company may consider the circumstances disclosed by the evidence relative thereto. In the case now under consideration a vital circumstance not to be overlooked was the existence of this contract, and it should not have been disregarded by the railway company in establishing the rate for the transportation of passengers from the Taylor land to the city, nor in the opposite direction. Its predecessor in title having by contract fixed a rate of five cents for such service, and that contract being binding on the present company, it must be observed. The agreed statement of facts -does not sbow that the rate specified in the contract was unfair -or unjust to either company or the public.

The decree of the court will be that the defendants specifically carry out the provisions of the contract, and that they be enjoined from charging a greater rate of fare than is fixed there,in. In order to enable the defendants to correct and publish a ■schedule of rates the carrying out of this decree will be stayed until March 1, 1913.

Decree for plaintiffs.

Wildman and Kinkade, JJ., concur.