author: WINCH, J.

text:
    MASTER AND SERVANT — PARTIES—TRIAL.
    [Cuyahoga (8th) Circuit Court,
    December 16, 1911.]
    Marvin, Winch and Henry, JJ.

      Fath Construction Co. v. Bausmerth.
    1. Norris Act not Unconstitutional as Inhibiting Contract Guaranties.
    The Norris act, 101 O. L. 195, amending Gen. Code 6242-6245, making defects in appliances and ways prima facie evidence of employers’ negligence, and abrogating the doctrine of assumption of .risk by employes as to such defects, does not violate any constitutional guaranties as to right to . contract.
    2. Norris Law Abrogates Rule of Pleading Negativing Plaintiff’s Negligence.
    Act 101 O. L. 195, the Norris law, amending Gen. Code 6245, and modifying the rule of assumption of risk of employes as to certain defects in appliances and place of work, abrogates the rule of pleading as to denial of knowledge, actual or constructive, of defects causing the injury "alleged.
    3. Administrator Proper Party to Bring Action for Wrongful Death
    Under Norris Act. '
    Act 101 O. L. 195, amending Gen. Code 6242-6245, 10770, 10772 and modifying the law regulating the liability of employers for injuries to employes, applies to actions for injuries by an employe himself and by hi§ administrator if he fails to survive the injury incurred.
    4. Certificate of Trial Judge that Defendant Conceded Representative Character of Plaintiff in Wrongful Death Action Conclusive.
    A certificate by a trial judge in an action for death by wrong- . ful act, that the fact of the representative character of plaintiff as administrator of a deceased employe was conceded by defendants, is conclusive; therefore, failure to prove such fact is not ground for reversal.
    5. Plank Platform Used as Means of Access to Work on Building in Construction Held “Way” Designated in Norris Law.
    The term “way” in Gen. Code 6245 as amended by act 101 O. L. 195", designating the objects for defects in which an injured employe may recover, is not limited to a “permanent way”; - hence, a platform of planks placed upon supporting beams of a building in process of construction and used for hoisting materials and as a means of access by employes to work on its walls, etc., constitutes a “way” or “appliance” within the meaning of such act. Mason V. Ferguson, 31 O. C. C. 623, denied.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Ford, Snyder & Tilden and H. Melvine Roberts, for plaintiffs in error:
    Rule as to pleading' knowledge of defects, Chicago & Ohio Coal & Car Co. v. Norman, 49 Ohio St. 607 [32 N. E. Rep. 857] ; McGill v. Traction Co. 79 Ohio St. 203 [86 N. E. Rep. 989; 19 L. R. A. (N. S.) 793; 128 Am. St. Rep. 705],
    Words “ways,” “works,” “appliances” in statute do not comprehend “scaffold,” Mason v. Ferguson, 31 O. C. C. 623 <12 N. S. 567) ; Burns v. Washburn, 160 Mass. '457 [36 N. E. Rpe. 199] ; Adaskin v. Gilbert, 165 Mass. 443 [43 N. E. Rep. 199].
    Norris act is unconstitutional, Ives v. Railway, 201 N. Y. 271 [94 N. E. Rep. 431; 34 L. R. A. (N. S.) 162; 1912'B. 156],

      Kerruish, Kerruish, Hartshorn & Spooner, for defendant in error:
    Rule of construction, Hornsby v. Eddy, 56 Fled. Rep. 461 [5 C. C. A. 560] ; Narramore v. Railway, 96 Fed. Rep. 298 [37 C. C. A. 499; 48 L. R. A. 68] ; Gibbs v. Railway, 12 Q. B. Div. 208; Walsh v. Whiteley, 21 Q. B. Div. 371; Mobile & B. Ry. v. Holborn, 84 Ala. 133 [4 So. Rep. 146] ; Caspar v. Lewin, 82 Kan. 604 [109 Pac. Rep. 657].
    The scaffolding or platform was a part of the ways, Caldwell v. Mills, 24 Out. Rep. 462; McGiffin v. Ship Building Co. L. R. 10 Q. B. Div. 5; Pegram v. Dixon, 55 L. J. Q. B. (N. S.) 447; United States Roll. Stock Co. v. Weir, 96 Ala. 396 [11 So. Rep. 436] ; Burns v. Washburn, 160 Mass. 457 [36 N. E. Rep. 199]; Lynch v. Allyn, 160 Mass. 248 [35 N. E. Rep. 550] ; Howe v. Finch, 17 Q. B. Div. 187; Willetts v. Wait, 2 Q. B. Div. 92; Brannigan v. Robinson, 1 Q. B. Div. 344.
    Scaffolding or platform was an appliance, Honaker v.
      Board of Ed. 42 W. Ya. 170 [24 S. E. Eep. 544; 32 L. E. A. (N. S.) 413; 57 Am. St. Eep. 847]; Bodie, v. Raiíway, 61 S. C. 468 [39 S. E. Eep. 715] ; Hicks v. Railway, 63 S. C. 559 [41 S. E. Eep. 753] ; Donahue v. Railway, 32 S. C. 299 [11 S. E. Eep. 95; 17 Am. St. Eep. 854] ; Henrietta Goal Co. v. Campbell, 112 111. App. 452, affirmed, Henrietta Coal Co. v. Campbell, 211 111. 216 [71 N. E. Eep. 863] ; Johnson v. Water Co. 71 Wis. 553 [37 N. W. Eep. 823; 5 Am. St. Eep. 243] ; Chambers v. Tin Plate Co. 129 Fed. Eep. 561 [64 C. C. A. 129] ; Kimmer v. Webber, 151 N. Y. 417 [45 N. E. Eep. 860; 56 Am. St. Eep. 630] ; National Refining Co. v. Willis, 143 Fed. Eep. 107 [74 C. C. A. 301] ; Austin Mfg. Co. v. Johnson, 89 Fed. Eep. 677 [32 C. C. A. 309; 60 U. S. App. 661] ; Phoenix Bridge Co. v. Castleberry, 131 Fed. Eep. 175 [65 C. C. A. 481]; Britton v. Telephone Co. 131 Fed. Eep. 844 [65 C. C. A. 598]; Butler v. Townsend, 126 N. Y. 105 [26 N. E. Eep. 1017] ; Whallon v. Elevator Co. 1 App. Div. 264 [37 N. Y. Supp. 174]; Stewart v. Ferguson, 34 App. Div. 515 [54 N. Y. Supp. 615] ; Heiser v. Abattoir Co. 141 App. Div. 400 [126 N. Y. Supp. 260] ; Mason v. Ferguson, 31 O. C. C. 623 (12 N. S. 567).
    .Scaffolding or staging was part of the works, Brannigan v. Robinson, Q. B. Div. 344; Moore v. Gunison, 58 L. J. Q. B. (N. S.) 169; Brooker v. Higgs, 3 Times L. E. 618.
    Plant, Southern Bell Tel. & Tel. Co. v. D’Alemberte, 39 Fla. 25 [21 So. Eep. 570] ; Yardmouth v. France, 19 Q. B. Div. 647; Rombaugh v. Balch, 27 Ont. App. Div. 32; 1 Bevan, Negligence 697, 698.
    Constitutionality of the Norris act, Pennsylvania Co. v. McCann, 54 Ohio St. 10 [42 N. E. Eep. 768; 31 L. E. A. 651; 56 Am. St. Eep. 695]; Ashley v. Ryan, 49 Ohio St. 528 [31 N. E. Eep. 721]; Co.al Co. v. Estievenard, 53 Ohio St. 43 [40 N. E. Eep. 725] ; Schlemmer v. Railway, 205 U. S. 1 [27 Sup. Ct. Eep. 1; 51 L. Ed. 681].

      Affirmed, no op., Fath Construction Co. v. Bausmerth, 87 O. S. 000; 58 Bull. 35.

   WINCH, J.

This is an action for wrongful death, under the Norris law, so called, with verdict for the plaintiffs below in the sum of $6,000, which the court reduced to $4,000, entering judgment in the latter sum, the plaintiffs consenting to the remittitur.

At and before the time of the accident the deceased, Thomas Bausmerth, was working for the Construction Company in the erection of the Lorain Avenue Branch Library on the west side, in the city of Cleveland, for which erection the company had a contract. As the work progressed, certain steel I-beams were extended across the north wing of said building at a height of about twenty-five feet above the ground, to form the framework of the ceiling of the rooms below and the roof of said wing. These I-beams were placed at regular intervals of eight feet and six inches apart.

Some twelve or fifteen days before September 9, 1910, the day on which Bausmerth received his fatal injury, he and other workmen were directed by the foreman on the job to construct a scaffold, platform, staging of flooring upon said I-beams, and for this purpose were furnished planks sixteen feet long. The foreman superintended the construction of the platform, and it was so laid that the ends of the planks overlapped between the second and third I-beams, counting from the north wall. In this condition the platform was unsafe, for a weight superimposed upon these overlapping ends between the second and third I-beams would cause the planks to tip down and drop the weight through. This danger, however, was obviated by erecting a heavy derrick over the north end of the north row of planks and immediately over I-beam number one, the supporting timbers of the derrick extending east and west across said planks and timbers being spiked on top of and cross-wise of said planks, one on either side of and against the supporting timbers of the derrick. The derrick was used for hoisting up material from the outside of the building.

On the day in question, the walls of this wing being complete, except the laying of a few coping stones, the foreman had said derrick removed and the timber spiked to the planks tom up. This left a defective condition of the platform, for the overlapping plank ends between I-beams two and three would not now sustain any heavy -weight. ,

The petition contains the following allegation:

“Plaintiffs say that said platform, scaffold, staging or flooring, constructed as hereinbefore described and for the purpose aforesaid and constituting a part of the ways, works, plant and appliances which were connected with and used in the business of the defendant, was negligently, carelessly and unlawfully left by said defendant in a weakened, defective and unsafe condition as aforesaid, which said weakened, defective and unsafe condition was fully known, observed and understood by said defendant through its foreman, Koenig, but wholly unknown, unnoticed and uncomprehended by said deceased.”
“Plaintiffs say that shortly after said platform had been converted from a safe into a dangerous place, as aforesaid, to-wit: at about 12:30 P. M. on September 9, 1910, the decedent was expressly ordered and commanded by said foreman, Koenig, to help him and five other of said workmen carry a large coping stone, weighing between 600 and 700 pounds, from the top of a ladder placed against the southerly side of I-beam number four across said platform to said north wall; that in compliance with said express order and command, the said decedent did then and there, with the aid of the six other men, including said foreman, take hold of said stone and lift it and proceeded to carry the said stone across said platform towards said north wall, all the while in the exercise of due care and without negligence on his part and under the express and direct commands and guidance of the said foreman, and had proceeded until he and they had reached a point on said platform directly over the center of the said space between said I-beam numbers two and three, when suddenly and unexpectedly and without warning of any kind to said decedent, said platform gave -way by reason of six or seven planks of each said row of planks tipping down because of so great a load imposed upon it, and caused said stone and said decedent together wdth four other of said men to fall through said space and down onto said floor I-beams and thence to the ground some thirty feet beneath, so crushing and mangling said decedent that he died from said injuries the following morning. ”

It is, perhaps, unnecessary to quote further from the petition.

Several errors are alleged to have occurred at the trial:

First, it is claimed that no evidence should have been received under the petition, because it fails to contain an allegation that the decedent did not have equal means of knowing with the master, or, by the exercise of ordinary care, could not have discovered, the existence of the defect.

As the law stood until the adoption of the Norris law, April 30, 1910, 101 O. L. 195, the petition was defective in this respect.

Chicago & Ohio Coal & Car Co. v. Norman, 49 Ohio St. 598, 607 [32 N. E. Rep. 857].

This rule of pleading', however, was abrogated by the act referred to.

Section 6245 of said act provides:

“That in any such action (for personal injuries or wrongful death, as provided in section 6242) when it shall appear that the injury or death was caused in whole or’ in part by any of the following, to-wit: * * * any defective or unsafe condition in the ways, works, boats, wharves, plant, machinery, appliances or tools, except simple tools, in any way connected with or in any way used in the business of the employer, the fact that such employe continued in said employment with knowledge of such negligent omission or want of care, or such defective or unsafe condition shall not be a defense unless,” etc.

In conformity with the Norman ease, the legislature might have said: “It shall not be necessary for the employe to allege in his petition or prove on the trial that he did not continue in said employment with knowledge of such negligent omission or " want of care,” etc., but in common parlance “assumption of risk”' — and the matter here mentioned comes within the meaning of that expression — has always been spoken of as a defense. Evidently, with this idea in mind, the legislature said “it shall not be a defense.”

The manifest intention of the act was to take out of the case the question of the employe’s actual or constructive knowledge of the defect complained of, and this we believe it does. Whether this part of the act is constitutional or not will be treated of later in a consideration of the charge.

It is said, however, that the temporary platform or scaffold described in the petition does not come within the meaning of the words 1 ‘ ways, works, boats, wharves, plant, machinery, appliances or tools,” as used in the statute, and the ease of Mason v. Ferguson, 31 O. C. C. 623 (12 N. S. 567), decided by the Hamilton county circuit court, sustains this proposition.

We are not in accord with that decision, nor do we think it sustainable upon the authorities therein cited, nor upon reason.

The platform here involved was built and used for the purpose of permitting the workmen to pass, -with or without tools and material, from the ladder at its south end to the walls upon which they worked. It was their only means of access to their work on the walls after the I-beams had been placed in position. It was temporary in character, but it was both a way and an appKance connected with and used in the business of the employer, and was no more temporary in character than his business, which was ended on this job when the walls were completed, at which time the platform would be removed.

The Century Dictionary defines “ways” as: “The track or path by passing over or along -which some place has been or may ,be reached; a course leading from one place to another”; and it defines “appliance” as: “Something applied as a means to an end, either independently or subordinate^; that which is adapted to the accomplishment of a purpose; an instrumental means, aid, or appurtenance.”

The act in question must be construed with these definitions in mind, and the ordinary and usual meaning given to the words employed by the legislature. There is no necessity of limiting the meaning of the word “way” to a permanent way; even strict construction does not require that to be done.

The object of the act was clearly to alter the law in favor of workmen and to extend the liabilities of the employer, and this object is effectuated by a fair construction of the words used in it. It is also remedial in its nature, and, therefore, should have a liberal construction.

It is next said that a verdict should have been directed for the defendant below, because the plaintiffs failed to prove that they were the administrators of the estate of the deceased employe.

The trial judge certifies that this fact was conceded by the defendant company at the trial, and his certificate is conclusive upon this point.

Many rulings on the admission of evidence are complained of, all of which have been examined, but no erroneous rulings have been found which were prejudicial to the rights of plaintiff in error.

The judgment is not excessive.

The verdict was sustained by the evidence'.

The charge is complained of, but only in so far as it gave the pertinent part of the Norris act as the law of the case.

As before stated, the platform or scaffold described to the jury in the evidence was a way or appliance, and the court properly so charged.

It is said, however, that the court improperly charged the law as stated in Sec. 6243 of the act as applicable to a death case.

That section reads:

“That if the employe of any such employer shall receive any personal injury by reason of any defect or unsafe condition in any ways, works, * * * such employer shall be deemed to have had knowledge of such defect, before and at the time such injury was so sustained, and when the fact of such defect ■ shall be made to appear upon trial of an action brought by such employe or Ms personal or legal representatives, against any such employer for damages, on account of such injuries so received, the same shall be prima facie evidence of neglect on the part of such employer; but the employer may show by way of defense that such defect was not discoverable in the exercise of ordinary care.”

It is claimed that the words “or his personal or legal representatives” do not necessarily refer to the administrator .suing for the benefit of the beneficiaries named in Sec. 10772 of the act, but may have reference to ah administrator suing for personal injuries for the benefit of the estate of the deceased emplojm, he having survived his injuries and having subsequently died from some other cause.

A study of the preceding and subsequent sections of the act shows that this technical objection is not well taken. The purpose of the act is clearly shown to be to modify the law regulating the liability of the employer for injuries to his employe received by reason of defects of the kind enumerated, both in cases where the employe survives his injuries, and himself sues, and where he dies of his injuries and an action for death from wrongful act is brought by his personal or legal representative. The sections authorizing the latter act are amended and, as amended, incorporated in the Norris act; they are referred to throughout the entire act in guch manner as to make this point clear.

Besides, it would be a work of supererogation for the legislature, with the limitations claimed, to extend -the benefit of See. 6243 to an action brought by the'employe’s personal representative, after having granted it to the employe, for such personal representativé would have all the benefits of the law which his decedent would have had. Such action, with all its incidents, survives at common law.

It is claimed by counsel for plaintiff in error that Secs. 6243 and 6245 of the Norris act, which were charged in this case, are unconstitutional. The former section malíes evidence of a defect in the ways and appliance prima facie evidence of neglect on the part of the employer, and the latter section says that the fact that the employe continued in his employment with knowledge of the defect is no defense to the action.

It is said that substantial rights of employers guaranteed, them by the constitution, are taken away from them by these sections.

Such might have been said of the act of 1851, 59 O. L. 117, entitled “An act requiring compensation for causing death by wrongful act, neglect, or default,” but its constitutionality was never questioned. '

The same act, amended so as to make the incidents of Sees. 6243 and 6245 a part of it, is found in the Norris act. Of the original enactment, Judge Mellvaine said, in the ease of Davis v. Justice, 31 Ohio St. 359, 363 [27 Am. Rep. 514]:

“Before the passage of this statute, an action for pecuniary loss, resulting.from the death of a human being, was unknown, in our practice, and, ever since, the only suits for such loss have been prosecuted under its provision. The statute has always been regarded as an innovation upon the principles of the common law, and as affording the only civil remedy for an injury caused by death. ’ ’

We have many other constitutional statutes which define wrongs and create rights unknown to the common law. It- is to the credit of the law that such is the case; it should keep pace with the times, the development of civilization and enlightened modern thought.

The rule adopted in the Norman case, requiring the employe to assump all the hazards of his employment, apparent or open to his investigation, had its origin less than a hundred years ago, and was based upon the relation of master and servant then existing, the two working together at the same bench, both equally cognizant of all the dangers incident to the employment. Since that time the factory system has grown up, business is done on a larger scale; by the introduction of new motive power and machinery the dangers surrounding workmen have been largely increased, but the law has left the burden of all these dangers upon the workmen. The law has not developed with the times. Courts and lawyers, as well as the public generally, have come to the opinion that these harsh rules of the common law should be abolished and rules more humane and in accord with modern conditions adopted. This thought, to a certain extent, has crystallized in the Norris act and other legislation recently enacted.

The Norman case could have been overruled by the Supreme Court; instead of that, it has been overruled by the legislature, which is better. The legislature can make general rules applicable to all similar cases, promulgated to all the people, while a rule of law adopted by a court is based upon the facts of the particular case before the court, and is apt to be too narrow in its scope and leaves the matter open to further litigation between individuals who seek to distinguish their own cases from the one in which the rule has been laid down. In addition, the decisions of courts are first known only to the legal profession, and but slowly and gradually reach the people in all their force and effect.

Nothing in the Norris law, which invades the constitutional rights of employers, has been called to our attention. It is true that it modifies the contract which formerly was implied from the relation of employer and employes; it defines that contract with some particularity; every employer can hire workmen with the statute in mind; the employer is no more required to hire men than the men are to work for him. If the relation is assumed, it is assumed with the law as part of the contract of employment.

We have examined all complaints with regard to the charge, and find no reversible error in it. It might have been made more concrete and full on some points, but was in no sense misleading. In the absence of special requests for further instructions, a failure to cover all the questions involved in the case is not ground for reversal, provided the jury was not misled by the charge as given. Columbus v. Ritter, 67 Ohio St. 53 [65 N. E. Rep. 613].

Judgment affirmed.

Marvin and Henry, JJ., concur.


source: Caselaw Access Project

author: SMITH, P. J.

license: Public Domain

text:
    LANDLORD AND TENANT — PLEADINGS—TRIAL.
    [Hamilton (1st) Circuit Court,
    June 24, 1911.]
    Smith, Swing and Jones, JJ.
    George F. Fish et al. v. John F. Robinson.
    1. Testimony Unnecessary if Pleadings Disclose Full Facts.
    If pleadings disclose all the facts relative to a contract in controversy introduction of evidence is unnecessary; hence, a judgment will not be reversed for refusal of the trial court to permit the introduction of testimony as to the circumstances surrounding the parties at the time the contract iniquestion was made.
    2. Stipulated Sum Payable upon Forfeiture of Lease for Releasing Regarded as Liquidated Damages Suable for at Election of Lessor.
    A stipulation in the lease of a theater for payment of $5,000 to the lessor as a forfeiture in case' of the releasing of the property, will be regarded as an agreement for liquidated damages in that amount, not as a penalty; in case of violation of the stipulation the lessor may elect whether he will sue, for the sum named ■ as liquidated damages or for a forfeiture.
    3. Partnership not Established Between Lessee and Sublessee by Sale of Real Estate.
    An agreement between a lessee and one to whom he has surrendered possession of the property, that the lessee is to be saved from all losses and is to receive rent from said third party who is to pay all bills, does not establish a partnership between them but constitutes an assignment of the lease to said third party.
    Error to Cincinnati superior court.
    On the. trial below motion for judgment on the pleadings was granted, Judge Spiegel rendering an opinion as follows:
    “This cause arises out of the following state of facts:
    “John Robinson, through his agent, the Robinson estate, rented this opera house to George F. Fish and other parties. The lease contained a provision against releasing or assigning the lease, and a sum of $5,000 dollars was named, called a forfeiture, if the defendants in this ease should transgress this stipulation.
    “During the numerous motions that were made, the court ordered the defendant to attach to his answer a certain paper, which defendant claimed was an article of partnership with those who conducted the theatre.
    “This was an assignment of the lease, and not a partnership, and thereupon a breach of the original lease by the Robinson estate to Fish.
    “The second question arises, whether the sum provided therein and agreed on by both of the parties, namely $5,000, was a penalty or liquidated damages.
    “I find from the nature of the transaction, and from the pleadings before me, that this amount was intended as liquidated damages.
    “Next, I pass on the other proposition whether there could be any testimony introduced for the purpose of showing the amount was excessive and not proper.
    “I find the parties have agreed upon $5,000. It was a theatrical enterprise, leased by Robinson for a theatre to certain parties to conduct a theatre, and as I find, afterwards leased by the lessees"to others.
    ‘ ‘ A jury would not be able to tell whether the parties injured the theatre or not, and I think the .parties had a right, under the circumstances, the reputation of the theatre bein^ involved, to fix the amount of damages for the assignment of the lease, making it liquidated damages. ’ ’

      Kramer & Bettman, for plaintiff in error.

      Sayler & Sayler, for defendant in error.
   SMITH, P. J.

By consideration of the trial court, defendant in error recovered a judgment upon the pleadings in the above case, to set aside which this action is brought. •

The pleadings disclose. that defendant in error, being the owner of an opera house building in Cincinnati, leased the same to plaintiffs in error by indenture of lease dated September 5, 3904, for a term ending on June 19, 1907, at a rental value of $9,000 per year, the lease containing a provision that plaintiffs in error should not sell, rent, transfer or assign said leased premises, or any part thereof, without the written consent of the said lessor, under a forfeiture of $5,000; that in pursuance of said contract of lease, said plaintiffs in' error entered into possession of said premises under the terms of the lease, the same being for theatrical purposes; that on December 26, 1906, a few months prior to the expiration of said term, said plaintiffs in error executed a contract with one Canfield, by the terms of which Canfield assumed control of the property in question and was to pay rent for the same to plaintiffs in error, and thereafter under this contract Canfield conducted the theatrical business in said premises. ,

Plaintiffs in error complain that the judgment of the court below is wrong for the reasons:

First, that evidence should have been introduced to show all the circumstances surrounding the parties at the time the contracts were made.

Second, that defendant in error waived the condition and covenant in the lease against renting, and estopped himself from enforcing said contract for the reason that after December 28, 1906, the date of the execution of the contract between Can-field and plaintiffs in error, he accepted rent under the lease with knowledge of the contract.

Third, that the provision against renting or assigning said lease is one for a forfeiture and not for liquidated damages; and

Fourth, that as a matter of fact there was no assignment of the lease in question; but that the contract between plaintiffs in error and Canfield was that of a partnership.

We do not think any of these contentions of plaintiff in error are wrell taken. The pleadings themselves sufficiently set forth the facts existing under the lease and contract to Canfield, and what was done thereunder.

There was no waiver on the part of defendant in error of the covenant not to transfer the lease, as defendant in error would have the right to sue upon the covenant and recover the liquidated damages mentioned in the lease, or for a forfeiture under the terms of the lease.

Under the case of Doan v. Rogan, 79 Ohio St. 372 [87 N. E. Rep. 263], the court is of the opinion that the $5,000 mentioned in the lease as a forfeiture in case plaintiffs in error should assign or transfer the lease, was the sum fixed and intended by the parties as liquidated damages for the breach of the contract of lease, and was not a penalty. This we gather from the entire instrument itself.

Plaintiffs in error further contend that the contract between them and Canfield ivas not an assignment of the lease in question but was only a contract of partnership between them. In this contention we can not agree with plaintiffs in error. Under this contract plaintiffs in error were to receive rent from Canfield for the balance of the term, but not to be liable for any losses, and all bills were to be paid by Canfield; clearly the instrument shows that it was an assignment of the.lease and not a contract of partnership.

The pleadings fully disclosing all the facts, the introduction of evidence was immaterial and unnecessary.

The judgment of the court below upon the motion for judgment being correct, the same is affirmed.

Swing and Jones, JJ., concur.


author: QIFFEN, P. J.

text:
    ACTIONS — CONTRACTS.
    [Hamilton (1st) Circuit Court,
    July 9, 1910.]
    Gillen, Smith and Swing, JJ.
    George F. Williams v. W. T. Crockett.
    Recovery upon Implied Quantum Meruit, Special Contract Denied, Held Affirmed.
    Recovery upon election to sue upon an implied quantum meruit, denial of special contract having been made in writing before suit commenced, is affirmed.
    Error to common pleas court.

      Burch & Johnson, for plaintiff in error.

      Chas. A. J. Walker, for defendant in error.
   QIFFEN, P. J.

The plaintiff in error not only denied the existence of any special contract with the defendant in error, bnt made such denial in uniting before suit was commenced.

The defendant in error thereupon elected to sue as upon an implied quantum meruit for the value of the services rendered, and recovered a verdict. The judgment should be affirmed. Ralston v. Kohl, 30 Ohio St. 92.

Smith and Swing, JJ., concur.


author: JONES, J.

text:
    COMPENSATION AND SALARIES.
    [Hamilton (1st) Circuit Court,
    November 25, 1911.]
    Smith, Swing and Jones, JJ.
    Louis J. Dolle, Tr., et al. v. Thomas R. Roberts et al.
    Construction of Agreement as to Attorney’s Fees in Trust.
    “Fees” in a trust instrument will not be regarded as referring in any way to an agreement as to fees, entered into between the cestui que trust and her attorney prior to the creation of the trust and without the knowledge of the grantor, but in such a case the attorney for the cestui que trust will be allowed to recover as- fees out of the trust funds only the fair value of the services rendered.

      Dolle, Taylor & O’Donnell, for plaintiff.

      O. D. Robertson and E. G. Pyle, for defendant.
   JONES, J.

On June 29, 1909, the defendant, Thomas R. Roberts, conveyed to plaintiff, as trustee, property valued at about $40,000 t'o be held in trust for the wife and children of said Thomas R. Roberts, the wife, Anna R. Roberts, to have the net income from same during her life, or until her re-marriage, in which latter event the income will go to a minor son, Thomas W., until he becomes of age. Upon her death, or (in case of her re-marriage) upon the son’s becoming of age, said property will go, absolutely, to the four children.

This arrangement and settlement was reached after the filing of an action for alimony in the insolvency court of Hamilton county by Mrs. Roberts on or about May 31, 1909, in which cause Mr. Dolle represented the plaintiff as attorney.

At the time said action was brought, Mrs. Roberts agreed in writing to pay Mr. Dolle 20 per cent of such sum as might be ordered paid to her as alimony in said cause, the parties to said agreement evidently contemplating that whatever sum should be received by her would be in gross or as commonly called a “lump sum.” This, Dolle, as her attorney, insisted upon in the early negotiation for a settlement and Mr. Roberts, by his attorney, Mr. Pyle, was equally or more insistent that a trust fund should be set aside for her and the minor son, they to use and enjoy the income tnerefrom.

This latter plan was ultimately agreed upon and thereupon at the instance of Mr. D611e a new agreement was entered into as to attorney fees, which-provided that the former agreement should be canceled and that Dolle should receive for his services 15' per cent “of the market value of any and all real estate, money, securities or other personal property which he. may succeed in having conveyed or transferred by the said Thomas R. Roberts, in trust for the' benefit of said Anna Roberts or Thomas R. Roberts, or either or both of them during their life or lives, and thereafter the principal sum to be paid or delivered to their children, the said commission to be paid rout of the principal fund so conveyed or transferred immediately upon the delivery thereof, to the said trustee or trustees; :and the said trustee or trustees of said fund-, or either of them, is hereby authorized to pay to the said Louis J. Dolle upon demand a sum equal to 15 per cent of the total value of all property which the said Thomas R. Roberts may hereafter convey to him or them or either of them in trust as aforesaid.”

This agreement bears date of June 16, 1909, and is signed by Louis J. Dolle, Anna Roberts, Stella Roberts, Mae Browning, Florence Roberts and by Thomas W. Roberts, a minor, by Anna Roberts, his natural guardian.

The instrument of June 29, creating the trust and setting forth its terms and conditions and signed by the husband, Thomas R. Roberts, contains in Art. 7, the following direction to the trustee:

“The said trustee shall # ■* * pay and discharge the court costs and fees due Louis J. Dolle for services rendered and expenses incurred by him in the action of the said Anna Roberts against Thomas R. Roberts for alimony * * ■* and for this purpose he is authorized to sell a sufficient amount of said securities and other personal property to pay the same. ”

It is for a construction of the above paragraph that this petition is filed by the trustee, he claiming, out of the trust fund 15 per cent of the market value of all property held by him as trustee, being as he contends, the “fees due” him under his contract of June 16 with Mrs. Roberts and the children and amounting to $5,964.15.

Objection to this charge is made by Mr. Roberts and other beneficiaries of the trust, it being urge,d that Dolle is only entitled to charge the reasonable value of his services without reference to any agreement he may have had with his clients.

It is conceded that at the time he signed the trust instrument Thos. R. Roberts had no knowledge of the contract for fees existing between Mrs. Roberts and her attorney by which the latter was to receive a contingent fee of 15 per cent.

Such being the case, we do not see how the trustee can recognize said contract, as he only has- such powers as are conferred upon him expressly by the trust instrument and such as are necessarily implied. The creator of the trust having had no information as to any special contract for fees, it is not reasonable to suppose that he contemplated such an agreement when providing for the payment of fees. On the contrary, the presumption is that he had in mind only such fees as would fairly compensate the attorney for services rendered, fixed under the conditions then surrounding the parties at a time when he was making provision to safely secure and pay same, rather than a fee fixed at an earlier date when its ultimate receipt depended and was contingent upon the success of a proceeding in court, and the recovery and satisfaction of judgment.

• We are of the opinion, therefore, that the word “fees” in Art. 7 of the trust instrument relates in no way to the contract of June 16; that under the terms of Art. 7, Mr. Dolle is entitled to be paid out of the trust fund the value of his services; that all the services on the part of Dolle and his associate counsel, including the negotiations for and preparation of the trust instrument, were rendered in the alimony proceeding and in effecting a settlement thereof.

All parties to this cause have united in a request that the court proceed to fix the fees due Mr: Dolle in the event of the above finding. After careful consideration of the question we are of the opinion that there should be paid to him the sum of $2,500 dollars for legal services, provided that upon payment to him of said amount he relinquish all claims for attorney fees against Mr. and Mrs. Roberts and their children.

The trustee, in his account, a copy of which is attached to the petition herein, credits himself with $828.24 paid out for the benefit of Mrs. Roberts and children prior to June 29, 1909, or paid upon obligations incurred prior to that date. It is claimed that the items making up this amount are properly chargeable to the trust fund under “expenses” as provided in Art. 7 of the agreement above quoted.

The following items should be eliminated from said account as not being embraced within said provision: 1909, June 2, $185.85; June 10, $8; June 14, $2.25; June 15, $14.95; June 15, $1.65; June 30, $1.50; June 30, $1.90; total $216.10.

No question is raised but that all the items were paid by Dolle. and the payments appear to have been made 'in good faith. Hence, we have resolved doubt as to several in his favor and allow the remainder of the account, to wit, $612.33.

These amounts have.been fixed with the idea and upon the theory that they should be accepted in full satisfaction of the respective claims upon which they are based.

We find no evidence in the entire transaction of any fraud on the part of Mr. Dolle, as attorney, or in his capacity as trustee.

Smith' and Swing, JJ., concur.


text:
    MASTER AND SERVANT.
    [Hamilton (1st) Circuit Court,
    March 23, 1912.]
    Smith, Swing and Jones, JJ.

       James Griffith & Sons Co. v. Floyd C. Williams, Admr.
    Principal Contractor not Liable for Death of Subcontractor’s Employe, Killed by the Negligence of Subcontractor Removing Waii of Burned Building, in Absence of Dangerous Condition of Wall.
    A principal contractor, who has been engaged to rebuild a structure destroyed by fire, having rel§t to a subcontractor the work of removing a wall left standing, is not, by reason of exception to the law of independent contractor, rendered liable for the death of an employe of such subcontractor, knocked from the wall and killed by the fall of a derrick insecurely placed by the subcontractor, there being no evidence that the wall was dangerous as a result of the fire or otherwise.
    [Syllabus approved by the court.]
    Error to common pleas court.
    Isaac Bishop, doing business as the Bishop Rigging Company, one of the defendants herein, was employed by the James Griffith & Sons Company, general contractors, under contract with the Gaff estate, also one of the defendants herein, to do the wrecking and rigging necessary to the taking down of the south wall of the Freiberg building on West Fourth street left standing after the Fourth street fire. In doing this work, Mr. Bishop used a stiff legged derrick and employed in the work of tailing down this wall Charles Bauman. During the progress of the work on this wall and while Mr. Bishop’s men were preparing to lift a cornice stone on the southwest corner of the wall of said building, said derrick collapsed and the boom of said derrick knocked Charles Bauman from said wall causing the injuries which later resulted in his death. Floyd C. Williams was duly appointed administrator of said Bauman’s .estate and brought this action in his capacity as sueh administrator.
    On the trial of the case in the common pleas a motion was ■made by counsel for defendant, Isaac Bishop, that plaintiff be required to elect which of the defendants he would sue to judgraent. The motion was granted and plaintiff elected the James Griffith & Sons Company. The jury returned a verdict for plaintiff against the James Griffith & Sons Company for $2500. Decision on motion for new trial is reported, Williams v. Bishop, 22 Dec. 401 (12 N. S. 7).

      E. S. Aston and Prescott Smith, for plaintiff in error:
    Cited and commented upon the following authorities: Sherman & Redfield, Negligence (5 ed.) See. 169; Wharton, Negligence (2 ed.) See. 181; Wood, Mast. & Serv. S.ec. 312; Meacham, Agency Secs. 747, 748; 16 Am. & Eng. Enc. Law (2 Ed.) 194; 1 Thompson, Negligence Sec. 621; Salliotte v. Bridge Cio. 122 Fed. Rep. 378 [58 C. C. A. 466; 65 L. R. A. 620] ; Butler v. Hunter, 7 Hurl. & N. 826; Covington & C. Bridge Co. v. Steinbrock, 61 Ohio St.'215 [55 N. E. Rep. 618; 76 Am. St. Rep. 375] ; Hexhamer v. Webb, 101 N. Y. 377 [4 N. E. Rep. 755; 54 Am. Rep. 703] ; Engel v. Eureka Club, 137 N. Y. 100 [32 N. E. Rep. 1052; 33 Am. St. Rep. 692]; McCafferty v. Railway, 61 N. Y. 178 [19 Am. Rep. 267] ; King v. Railway, 66 N. Y. 181 [ 23 Am. Rep. 37] ; Harkins v. Sugar Refinery, 122 Mass, i 400; Bailey v. Railway, 57 Vt. 252 [52 Am. Rep. 129]; Bowers v. Peate, 1 L. R. Q. B. Div. 321; Storrs v. 'Otica, 17 N. Y. 104 [72 Am. Dec. 437] ; Wolf v. Tract Society, 164 N. Y. 30 [58 N. E. Rep. 31; 51 L. R. A. 241]; Deming v. Railway, 169 N. Y. 1 [62 N. E. Rep. 983; 88 Am. St. Rep. 521]; Smith v. Humphreyville, Ml Civ. Téx. App. 140 [104 S. W. Rep. 495] ; Pennsylvania Co. v. McCurdy, 66 Ohio St. 118 [63 N. E. Rep. 585] ; Schip v. Brewing Co. 64 Minn. 22 [66 N. W. Rep. 3] ; Reilley v. Railivay, 122 Iowa 525 [98 N. W. Rep. 464] ; Hawver v. Whalen, 49 Ohio St. 69 [29 N. E. Rep. 1049; 14 L. R. A. 828] ; Railway v.- Morey, Ml Ohio St. 207 [24 N. E. Rep. 269; 7 L. R. A. 701] ; 3 Bates, Plead. & Prac. 2118; Boarsman v. Creighton, 93 Me. 17 [44 Atl. Rep. 121] ; Youngstown v. Moore, 30 Ohio St. 133; Hesse v. Railway, 58 Ohio St. .167 [50 N. E.. Rep. 354]; Hoffman v. Gordon, 15 Ohio St. 211; Roemer v. Striker, 142 N. Y. 133 [36 N. E. Rep. 808] ; Kohn v. State, 33 O. C. C. Mil-, Martin v. Traction Co. 30 O. C. C. 703 (10 N. S. 528).

      Littleford, James, Ballard, Frost <& Foster, for defendant in error:
    Taking down wall not intrinsically dangerous. Covington & C. Bridge Co. v. Steinbrocle, 61 Ohio St. 215 [55 N. E. Rep. 618; 76 Am. St. Rep. 375].
    Contributory negligence. Clarh v. Stillioell-Bierce Co. 18 Dec. 741 (6 N. S. 448).
    Negligence in construction of derrick collateral negligence. Bowers v. Peate, 1 L. R. Q. B. Div. 321; Ealliday r. Telephone Co. 2 L. R. Q* B. 392; St. Paul Water Co. v. Ware, 83 U. S. (16 Wall.) 566; Circleville v. Nending, 41 Ohio St. 465; Railway v. Morey, 47 Ohio St. 207; 1 Thompson, Negligence Sec. 652.
    Admission of ordinance providing for condemnation of unsafe buildings, Covington <& C. Bridge Co. v. Steinbroclc, 61 Ohio St. 215 [55 N. E. Rep. 618; 76 Am: St. Rep. 375],
    Owner not liable to employe of independent contractor, Schip v. Brewing Co. 64 Minn. 22 [66 Ñ. W. Rep. 3] ; Reilly v. Railway, 122 Iowa’525 [98 N. W. Rep. 464] ; Eawver v. Whalen, 49 Ohio St. 59 [29 N. E. Rep. 1049; 14 L. R. A. 828] ; Railway v. Morey, 47 Ohio St. 207.

      Reversing, Williams v. Bishop, 22 Dec. 401; dismissed, no op., 57 Bull. 464.

   JONES, J.

The plaintiff in error employed Isaac Bishop to remove a portion of a Avail. The wall was left standing after a fire which destroyed the interior of the building.

Plaintiff in error is a firm doing a general contracting business and was under a general contract to rebuild the structure.

Defendant in error, as administrator ■ of one Bauman, recovered a judgment below against plaintiff in error for damages ; Bauman was employed 'by Bishop on said work and while engaged in tearing down the Avail was killed by the collapse of the derrick, a portion of which in falling knocked him off the Avail.

The derrick Avas the property of Bishop. Mr. Griffith testified that his firm retained no control over the manner in which the work was to be done. There was no effort made to contradict his evidence on this point. Defendant in error contends not about the fact and conditions of the contract between Bishop and the Griffith Company, but about its legal effect. He claims that the work undertaken was necessarily dangerous and “intrinsically hazardous” and that, therefore, the Griffith Company could not shift or escape responsibility by employing Bishop to do it.

In other words, that this case by reason of the dangerous nature of the work to be done, furnishes one of the recognized exceptions of the law of “independent contractor.”

Upon this contention, plaintiff’s cause of action wholly rests and under our view of the case we have found it unnecessary to consider any other question.

The case of Covington & C. Bridge Co. v. Steinbrock, 61 Ohio St. 215 [55 N. E. Rep. 618; 76 Am. St. Rep. 375], is cited by defendant in error and relied upon as deciding that all fire walls are dangerous and that an owner or head-contractor can not escape liability for negligence in removing a fire wall by contracting with another to do the work.

We do not think the case has this sweeping effect. The court on page 221 cff the opinion thus describes the wall in that case: •

‘! It was from the time 'of the fire a mere ruin, bulged out toward the east and manifestly dangerous to the public.”

The court decided that the owner was liable for damages to third persons from the falling of such wall through the negligence of the contractor and his employes.

If the injury had resulted in the case at bar from the falling of the wall, then only would the condition of the wall have been a controlling consideration. It is only where the wall is a “mere ruin” and “manifestly dangerous” that the owner can not shift responsibility for its falling from lack of ordinary care on the part of the contractor. This is what Covington & C. Bridge Co. v. Steinbrock, supra, decides and is as far as it can be extended.

There is no evidence in this case that the wall was “bulged” in or out, or was “manifestly dangerous.” On the contrary it was shown to be plumb. With the exception of a few feet on the top of the wall upon which Bauman was at work, it was to remain and to be used again. The top had been ordered removed owing to the greater heat to which it had been exposed upon the theory that in the future disintegration might take place.

But we think these considerations have nothing to do with the question before us, and they are mentioned here only because counsel for defendant in error has so strongly urged his contention as to the applicability of the Steinbrock ease.

Even if the evidence had shown this wall to have been out of “plumb” and “manifestly dangerous,” we are of the opinion that the principal contractor would only be liable for damage directly resulting from the defective condition of the wall. The evidence shows that the injury to Bauman which caused his death was caused by the falling of the derrick which was placed on the work, owned and operated by Bishop. This derrick was not carefully or firmly secured. It was used for the purpose of hoisting the stones and removing them from this wall. Bauman was not killed because he was on the wall, but because, unfortunately, he happened to be in the course of the falling derrick. This derrick was merely an instrument used in removing the wall and it seems to the court that, if its collapse, through negligence of Bishop, could be charged to the owner of the property or head-contractor, an injury done by one of Bishop’s wagons engaged in hauling the stone away from the premises could be held, with as much reason and consistency, to be the act of the Griffith Company.

The case of Jacobs v. Fuller, 67 Ohio St. 70 [65 N. E. Rep. 617], cited by defendant in error, does not support his contention. ' It is distinguished by the fact that there the dangerous machine was the property of the owner, while in the case now tinder consideration the derrick was- not.

The answer of defendant does not set up the defense that Bishop was an independent contractor. We are inclined to think that the defense is available under a general denial, but if there is doubt on that point, we think the question immaterial. . It was not raised in the argument of the case. No objection was made to the evidence showing the contract to he an independent one. In fact, this evidence was brought out by plaintiff below in the examination of Mr. Griffith. The case was tried by plaintiff upon the theory, as now urged, that the '“fire-wall” element in the contract determined its legal effect and the relation of the parties, notwithstanding its terms may have been such as would under other circumstances have created an independent contract.

We are of the opinion that the verdict below was not sustained by the evidence and was against the law, and that the motion at the close of the evidence by defendant for a verdict should have been sustained.

Judgment reversed and judgment in this court for plaintiff in error.

Smith and Swing, JJ., concur.


author: PER CURIAM.

text:
    INJUNCTION — TELEPHONES AND TELEGRAPHS.
    [Licking (5th) Circuit Court,
    September Term, 1911.]
    Powell, Voorhees and Shields, JJ.
    Johnston & Croton Tel. Co. v. William F. Hughes.
    Injunction Allowed to Restrain Abutting Owner’s Cutting Down Telephone Poles in Highway Erected Pursuant to Express Agreement with Former Owner.
    Injunction will lie to restrain a present owner of premises from cutting down the poles of a telephone line reconstructed along a highway abutting such premises, the original construction of which, many -years before, was by virtue of an express agreement made with a former owner thereof, and not interfering with his right of egress and ingress from and to his property; .mere failure of the telephone company to comply with his demand for compensation for increased burden upon his land gives him no right to destroy its property.
    [Syllabus approved by the court.]
    Appeal from common pleas court.

      Killer & Killer, for plaintiff.

      Kitzgilbon & Montgomery, for defendant.
   PER CURIAM.

This case comes into this court by appeal from the judgment of the court of common pleas and was heard upon the pleadings and evidence.

Plaintiff in its petition alleges that it is a corporation and as such corporation in the year 1900, under franchises granted to said plaintiff by the village of Johnstown and the county commissioners of Licking county, the said plaintiff constructed a telephone exchange in the village of Johnstown, Monroe township, said county, and also extended country or toll lines therefrom into the surrounding territory and in so doing built a line on the north and south road, which is described as extending along on the east line of lots eight and nine, owned by the defendant, William F. Hughes; that at the time said telephone exchange was established and lines constructed, the said lots eight and nine were owned by one Martha Hughes and others. The said line was built, constructed and since maintained under and by virtue of an express agreement made between the said plaintiff and the said Martha Hughes and others, previous to the location and construction of said line, by which the said defendant agreed and consented that the plaintiff might locate said line, which consisted of seven poles, cross-arms and wires along said road and maintained same for said purpose as part of said system of telephone communication; and in pursuance of such contract the plaintiff did construct said line as part of its system and extended the same to the north of said farm and beyond the limits of said Jersey township into Monroe township and southwardly below said farm and has since said year 1900 used and maintained the said pole line and appurtenances as a part of said telephone system* without any objection, let or hindrance on the part of said Mártha Hughes, or any other person, except as hereinafter stated. It then alleges the services furnished by said line and appurtenances to the patrons of said company; that in the year 1907, the defendant received a conveyance from the said Martha Hughes, mother of the defendant, for the said real estate, and at the time mentioned the said pole line and its appurtenances was located upon said highway, and that the defendant had full knowledge and notice thereof, and that the same,had been located thereon for many years and was so located by virtue of the contract above mentioned. It then sets out that about the time’ last mentioned the said defendant without objecting in any way to the presence or maintenance of said line of poles along said highway demanded of the plaintiff therefor compensation; that afterwards the said plaintiff failing to make compensation or conceding the said defendant’s right thereto, the defendant threatened and gave notice to the said plaintiff that unless the said plaintiff paid him a large sum of money for the privilege of having and maintaining said pole line along said highway he would destroy said pole line. And that in violation of the property rights of the said plaintiff, and without any right or authority the said defendant has since that time dug up six of said poles and thrown the same upon the ground upon said highway and left the same there, with the cross-arms and wires attached thereto, and they, remained thereon obstructing public travel and liable to produce serious damages and injury to travelers upon said highway; that the digging up of said poles and prostration of said lines has resulted in putting out of service all telephones on said line to the south of said premises, and cut out from service thereover all of the subscribers with whom the said plaintiff is under contract to,furnish said service, and has resulted in the violation of said contract by the said plaintiff ex necessitate. It next alleges that there was consideration of money, and that the defendant had full knowledge of said pole lines.

It alleges that it has reset said poles in the same location and restored the line to its former use and efficiency, but the said defendant threatens to and, unless restrained by the court, will again remove said poles and attempt to destroy said line, and asks that an injunction be granted restraining and enjoining defendant from in any way removing or disturbing said pol’es, crossarms, etc., along or on the highway through the farm of the said defendant in Jersey township, above mentioned, or in any way interfering with the use of said lines. And that, on the final hearing, such injunction be made perpetual, and for all proper relief. ' .

To this petition of the plaintiff an answer was filed in which the defendant admits the corporate capacity of plaintiff and the fact that it is operating a telephone line in the village of Johns-town, county of Licking, furnishing telephone connections with the exchanges mentioned in the petition, and as part of its business located a line on the route described in the petition in the year 1900; he admits that he became the owner of the farm in the petition described after the death of said Martha Hughes and that at said time the pole line was located on the highway, adjacent to said land; he admits thát he dug up the poles adjacent to his property and that since that time the plaintiff has reconstructed said line; and he denies each and every other allegation contained in said petition not herein specifically admitted to be true, and prays that the injunction before that time allowed should be dissolved, and for such other relief as he may be entitled to in law or in equity.

A reply wras filed to this answer and an amended and additional reply in which it wrns alleged that said telephone pole line was so constructed as not to incommode the public and in such a manner as not to discommode or interrupt the access of the said defendant to and from said highway and to his said property. It further alleges that the defendant did not within three months after the erection of said poles, wires and other equipment along said highway, make application to the county commissioners of said county of Licking, alleging any grievance or damage by reason of the construction of said pole line, wires, appurtenances, etc., nor for the appointment of three disinterested persons as appraisers, nor were any appraisers appointed, nor 'was any appraisement made of any loss or damage claimed to have been sustained by the said defendant.by reason of the said line, poles and other equipment, nor were any steps or proceedings taken by the said defendant under the provisions of R. S. 3461-2, omitted from General Code as being unconstitutional, see Johnston & C. Tel. Co. v. Cush, 14 Dec. 148. And he asks that the said defendant be barred by reason of the statute above quoted from making the said defense or objecting to the present existence, maintenance and operation of said pole line, wires and other equipment for the purposes mentioned in the said petition, and that by reason thereof has now no right to interfere with the location and construction of said pole line.

.By its amended and additional reply filed in this court July 29, 1910, it alleges that the said defendant had full knowledge of the erection of said poles, wires and appurtenances along said highway and of the nature and character of the local and long distance business intended thereby to be transmitted and which was actually thereby transmitted over and across said lines, and that between the year 1900 and the time of the commencement of this action he made no objection to the construction, maintenance and use of said wires as aforesaid, and made no attempt to interfere with said construction, maintenance and use, but acquiesced in the same; and plaintiff says that the said defendant is estopped from now objecting to or from now interfering with the maintenance and use of said poles, wires and appurtenances as aforesaid, and this plaintiff asks judgment as prayed for in the petition.

A temporary restraining order was allowed upon the filing of the petition herein. Afterwards the defendant filed a demurrer to the reply, which demurrer was sustained in the court of common pleas and the petition was dismissed and the case was then appealed to this court, where, at the last term of this court, to wit, March, 1911, the demurrer to the reply was overruled and the case was heard upon the evidence and tried upon its merits at this term of court.

Upon all the evidence adduced this court is of the opinion that the equities are with the plaintiff, and that the defendant is without any legal right or authority to remove the poles of the plaintiff so placed upon his lands as set out in the petition; that the plaintiff is in the nature of a public service corporation, and that the public ]iave acquired certain rights in the services to be rendered by it which the defendant ought not to be allowed to infringe or trespass upon, and that he has a legal remedy without taking the law into his own hands, as alleged in the petition, and admitted by him in his answer to be true; and that the plaintiff is entitled to the relief prayed for in its petition and that the temporary restraining order heretofore allowed in favor of the plaintiff should be made perpetual, and plaintiff recover its costs against the defendant.


text:
    ASSAULT AND BATTERY — DAMAGES.
    [Hamilton (1st) Circuit Court,
    February 13, 1912.]
    Smith, Swing and Jones, JJ.
    Hamilton County Agricultural Society v. Harry Helmann.
    Permanency of Injuries and Impairment of Earning Capacity of Person Assaulted not Admissible Unless Such Damages were Specially Averred.
    In an action for damages for assault and battery evidence as to the permanency of the. injuries received or impairment of earning capacity of the person assaulted is not admissible if such grounds of damage were not specially pleaded.

      Frank F. Dinsmore and Stanley W. Merrell, for plaintiff.

      W. W. Belletv, for defendant.
   SMITH, P. J.

This was an action in the court below to recover damages for assault and battery made upon defendant in error by a private policeman employed by plaintiff in error, who struck defendant in error upon the head with his mace while he was attending one of its “fairs” at Carthage, Ohio.

The allegation in the petition in respect to the act complained of is as follows:

“Plaintiff further avers that on said day aforesaid, he was sitting on the fence which encloses the race track on its ground, watching a balloon ascension which was then being given by said society, when the said Joseph Werbel aforesaid, private policeman, appointed by, and in the employ of said defendant’s society, without warning, struck and knocked plaintiff in the head with his mace, inflicting a cut three inches in length and otherwise beat this plaintiff about the body and dragged this plaintiff from about the place where he had been sitting, through and over the grounds of said defendant’s society, to an exit gate of said grounds a distance of at least 1000 feet, and ejected this plaintiff from the grounds, fair and exhibition of said society.”

At the trial of the case evidence was allowed to be introduced as to the permanency of the injury received by the blow and of the impairment of the earning capacity of defendant in error. To the admission of this evidence objection is made upon the ground that these grounds of damages were not specially pleaded.

In 2 Sedgwick, Damages p. 607, general damages are held to be such as the law implies or presumes to have occurred from the wrong complained of. Special damages are such as really took place and are implied by law.

It is a well settled rule that in a civil action for assault and battery it is unnecessary to specifically allege such damages as are the necessary and usual consequences of the act complained of, and in an action to recover damages for assault and battery the plaintiff may recover such damages as are the natural result of his injury without specific averment. Morgan v. Kendall, 124 Ind. 454 [24 N. E. Rep. 143; 9 L. R. A. 445].

So in an action for assault and battery it is only necessary to set forth in the declaration such damages as the law will not presume to be the necessary or usual consequences of the injury complained of. 2 Enc. Pl. & Pr. 862.

It would seem, therefore, from the assault -and battery as alleged in the petition, permanency of the injury and loss of time, or lack of earning capacity would not be the necessary and natural results thereof, and, therefore, to recover damages for the same they should be specially pleaded. In this regard they differ from humiliation, bodily pain and mental, anguish, which would be the necessary and natural results of assault and battery and for which one might recover on a general plea of damage. The rule seems to be that only such damages as may be presumed necessarily to result immediately and directly from the blow or force inflicted, need not be particularly and specially set out in the declaration, Birchard v. Booth, 4 Wis. 67, and permanent mental disorder can not be said to be the ordinary results of an assault and battery and unless specially pleaded can not be proved. Kuhn v. Freund, 87 Mich. 545 [49 N. W. Rep. 867].

But the law infers bodily pain and suffering from personal injury and applies also to an injury to the feeling and mental anguish as results of personal injury. Stewart v. Watson, 133 Mo. App. 44 [112 S. W. Rep. 762].

Loss of time, labor and medical expense in such an action must be specially averred. 2 Bates, Pl. & Pr. 967; O’Leary v. Bown, 31 Mo. 117.

Under the evidence in the case we" do not think that the consequences of permanent injury and impairment for work, necessarily flów from the act of assault and battery, and hold they should have been alleged in order to recover therefor.

We think the agency of the private policeman, who is alleged to have struck the blow, is sufficiently alleged in the complaint and we see no prejudicial error.in the charge of the court in this regard. In our view of the case, therefore, we are of the opinion that the court committed error in submitting to the jury the special charge relative to the recovery of damages for loss of time and diminished earning capacity; nor do we think that the trial court, in -whose mind it was doubtful whether evidence of such damages could be introduced, could cure this error by reducing the amount of the verdict by such sum as he thought the verdict had been increased by the admission of incompetent evidence.

The various elements going to make up the verdict by way of damages could not be separated, and in such event a new trial should have been granted, as the question of the amount of recovery is solely for the jury.

We find nothing further in the charge prejudicial, and for the above reasons the judgment of the court below is reversed and a new trial granted.

Swing and Jones, JJ., concur.


text:
    BRIDGES — MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    July 29, 1911.]
    Smith, Swing and Jones, JJ.

       Cincinnati (City) v. Edward Armstrong.
    Collapse of Old, Rotten Bridge and Prior Notice of Defective Condition of Bridges in that Locality Imply Constructive Notice of Defects that Reasonably Careful Inspection Would Furnish.
    Collapse of an old wooden bridge, supported by rotten timbers, and prior notice to its service department of the unsafe condition of bridges in the same locality, imply constructive notice of its defects such as would have been revealed by a reasonably careful inspection; hence, a verdict against the city for damages to a team and driver caused by such collapse, in the absence of contributory negligence by the driver, will not be set aside.
    Error to common pleas court.

      Constant Souihworth, assistant city solicitor, for plaintifE in error.

      Harry J. Wernke, for defendant in error. . ■

      Affirming, Armstrong v. Cincinnati, 22 Dec. 534; affirmed; no op., 88 O. S. 000; 58 Bull. 191.

   SMITH, P. J.

We do not think the evidence in,this case discloses any contributory negligence on the part of the defendant in error, but on the contrary the evidence is such as that but one conclusion can be drawn, which is, that the bridge in question was out of repair. The evidence upon this point being that “the timbers supporting it wore rotten; that there was no live current in the wood and that it had been built and in use for a long time prior to its taking over by the city from the county.”

The jury unequivocally answered three special interrogatories entirely consistent with the general verdict to the effect that the defect in question was of such a character that it could have been discovered by a reasonably careful inspection; that such an inspection was not made before the accident, and that the city had notice of the unsafe condition of the bridge about six weeks before.

Upon the latter question of notice the court is of the opinion that there is sufficient evidence to justify the finding of the jury upon this point. The attention of the board of public service was called to the unsafe condition of the bridges in that locality, and a written communication was sent to it specifying streets that needed repair, and we think that under all the evidence the constructive notice of the unsafe condition of this particular bridge was sufficiently proven.

We see no error in giving to the jury the special charge on behalf of the city, 'as the same is fully sustained by the ease of Hardin Co. (Comrs.) v. Coffman, 60 Ohio St. 538 [54 N. E. Rep. 1054; 48 L. R. A. 455].

The general charge correctly stated the law of the case, and finding no errors in the record, the judgment will be affirmed.

Swing and Jones, JJ., concur.


author: SMITH. P. J.

text:
    JURY.
    [Hamilton (1st) Circuit Court,
    September 23, 1911.]
    Smith, Swing and Jones, JJ.

      In re James J. Heekin.
    Exempting Contributing Members of State Militia from Jury Service is Valid.
    The exemption from jury service of contributing members of the state militia, prescribed by Gen. Code 5210, 5211, is a valid enactment, especially since the right of trial by jury is not impinged.

      Error to insolvency court.

      Walter W. Schwaab, for the petitioner.

      Stanley W. Merrell, for the state.

       Reversed, no op., Heekin, In re, 87 O. S. 000; 58 Bull. 231.

   SMITH. P. J.

In the above case the court is of the opinion that the judgment of the court of insolvency of Hamilton county, discharging the relator, James J. Heekin, from the custody of the sheriff of this county for alleged contempt of court is correct.

It appears that said Heekin is a contributing member of the Ohio National Guard and when summoned as a juror in the common pleas court he declined to serve as such by virtue of the provisions of E. S. 3039, 3055 (Gen. Code 5210, 5211).

It seems to us that it. is within the province of the legislature to exempt from service upon juries such classes of persons as it may deem best, and indeed this seems to be the great weight of authority.

Under Gen. Code 11444, public officers, clergymen, priests, physicians, attorneys at law, members of the police force, firemen employed by a municipal authority, acting volunteer members of companies to extinguish fires, organized in and under the control of a municipality, and all persons serving as active members thereof for five consecutive years and every person over seventy years old are exempt from jury service.

We have never had it seriously contended that individuals in any of the above classes could be compelled to serve as jurors, if they desired to avail themselves of their exemption, and we see no good reason w'hy the legislature could not make an additional class exempt so long as the right of trial by jury is maintained. Hall v. Grand Rapids, 88 Mich. 438 [50 N. W. Rep. 289], Rawlins v. Georgia, 201 U. S. 638 [26 U. S. 560; 50 L. Ed. 899].

As there is no error in the record the judgment of the court below is affirmed.

Swing and Jones, JJ., concur.


text:
    ARSON — CRIMINAL LAW.
    [Hamilton (1st) Circuit Court,
    April 15, 1911.]
    Smith, Swing and Jones, JJ.
    Harry Kohn v. State of Ohio.
    Failure to Establish Corpus Delicti Before Incriminating Evidence is Introduced not Erroneous.
    A conviction for arson will not be reversed for failure to establish the corpus delicti before evidence tending to incriminate accused is introduced, if the burning of the property is not disputed and the same evidence which established criminal agency also.bears upon the question of the guilt of the accused.
    Error to common pleas court.

      TActleford, James, Frost & Foster, for plaintiff in error.

      Henry T. Hunt, for defendant in error.
   JONES, J.

Plaintiff in error was convicted at the April term, 1910, of the common pleas court of the crime of arson.

The main point relied on for reversal of the judgment be-' low is that evidence was allowed to be offered by the state of alleged suspicious and incriminating conduct of the defendant before the corpus delicti was established.

It is true, as a general rule, that the corpus delicti must be pro.ven in a criminal case before any evidence is offered as to the guilt of the accused.

But this rule has its exceptions as all rules have, and we think this case furnishes one of them.

There is no 'question about the burning of the property. The same evidence which shows 3, criminal agency as to the fire also shows the guilt of the accused and in such case the evidence may be offered at the same time. State v. Davis, 48 Kan. 1 [28 Pac. Rep. 1092]; State v. Potter, 52 Vt. 33; Best, Evidence See. 442.

The burning being admitted, the second element in 'the. crime of arson, that of criminal agency, remained to be proven, This was proven to the satisfaction of the jury by the same evidence which fastened the crime upon Kohn — namely, his conduct and statements before and after the tire, which were not only suspicious and reprehensible, but wholly inconsistent with any theory other than his guilty knowledge of and criminal connection with the origin of the fire.

We think, therefore, that the corpus delicti was properly proven and that the record shows no error prejudicial to plaintiff.

It is contended ivith force and ability that the testimony of witness Hazel Helvey as to a conversation had with one Levison was inadmissible. No exception was taken to its admission and hence we do not feel called upon to determine its competency.

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

Smith and Swing, JJ'., concur.


author: NIMAN, Jo

text:
    PATENTS — SPECIFIC PERFORMANCE.
    [Stark (5th) Circuit Court,
    March, 1912.]
    Powell, Voorhees and Niman, JJ.
    (Judge Niman of the 8th circuit sitting in place of Judge Shields.)
    Frank Tyson et al. v. Miller-Tyson Co. et al.
    Specific Performance of Parol Agreement to Assign Deed of Patent Upon Consideration of Continuance of Business of Manufacture and Position not Enforcible Because Lacking in Mutuality and Definiteness.
    Specific performance does not lie to enforce a parol agreement to assign deeds of certain patents to a firm exclusively manufacturing and selling the inventions upon a royalty basis, in which firm the inventor held stock, was employed as superintendent and to experiment and invent new patents, where the only consideration therefor was the inventor’s interest in dividends, assurance of a permanent position with the company and promise to finance the company and keep it going; and especially where no action was taken by the board of directors to effect the terms of the agreement or authorize any one to make such an agreement. Such contract lacks the elements of definiteness and mutuality necessary to secure performance.
    [Syllabus approved by the court.]

      Error to common pleas court.
   NIMAN, Jo

This proceeding in error had its inception m an action brought in the court of common pleas by the Miller-Tyson Company against the plaintiffs in error, Frank Tyson, J. C. Corns and Atlee Pomerene, as trustee to enforce by specific performance an alleged parol contract, whereby it is claimed the said Frank Tyson agreed to assign the said Miller-Tyson Company his interest in certain letters patent.

The said J. C. Corns and Atlee Pomerene as trustee, were made defendants in said action, on account'of interest claimed by them in certain of the patents in controversy, and filed separate answers setting up the assignment to them by the said Frank Tyson of his interest in such of the patents as are therein enumerated, as collateral security for certain indebtedness, and asking that their respective' interests be protected.

Shortly after the filing of the petition in the court of common pleas, said the Miller-Tyson Company became bankrupt and the defendant in error, the Miller Pasteurizing Machine Company subsequently acquired, by valid assignment from the trustee in bankruptcy for said Miller-Tyson Company all such right as that company had in the patents described in the petition, and was duly substituted as plaintiff in said action.

The finding of- the court below was in favor of the plaintiff and a decree of specific performance was entered against the defendant, Frank Tyson, except as to certain pending applications for patents, and the defendants J. C. Corns and Atlee Pomerene as - trustee were found to have no interest in the letters patent referred to in their respective answers as against the plaintiff.

A reversal of thé finding and decree of the common pleas court is sought by this proceeding in error.

The alleged parol contract which formed the basis of plaintiff’s action below is set forth in the petition in the following language:

“That the said Tyson then and there, to wit: on or about June 14, 1909, ivas the owner of a large amount of the capital 'stock of the plaintiff company, and that he then and there verbally agreed with the plaintiff in consideration of the fact that the plaintiff had paid all the fees and expenses of every kind necessary or useful for obtaining said last named letters patent including as well patent office fees as fees paid the solicitor employed to attend the work incident to the procuring of said letters patent, and in consideration that the plaintiff would continue manufacturing,, experimenting, development and sale of said devices for pasteurizing milk under said letters patent, and all brine ice cream freezers under said letters patent respectively, and in consideration that plaintiff would defend suits brought for the infringement of said letters patent, to convey, transfer-and assign to the plaintiff by proper instrument or instruments of writing his undivided half interest in the letters patent first above mentioned, to wit :
“Nos. 8.04,687 and 804,688 and the said letters patent last above mentioned, to wit: Nos.. 903,030, 855,364, 903,028 and 923,609 for brine ice cream freezers and Nos. 853,659 and 896,959, 903,029 and 887,712 for pasteurizers together with any pending applications for patents or for any patents that he might thereafter secure upon their pasteurizers or brine ice cream freezers.”

It appears from the evidence that the Miller-Tyson.Company, the original plaintiff below, was organized in January, 1906; that at that time Frank Tyson and H. B. Stewart were the joint «owners of letters patent No. 804,687 for pasteurizing apparatus and No. 804,688 for pasteurizing liquids and Tyson was the owner of an invention for which letters patent 855,364 for ice cream freezers were subsequently secured; that on January 27, 1906, Tyson and Stewart entered into a written agreement with said Miller-Tyson Company, whereby it was given the exclusive right to manufacture and sell in the United States the pasteurizing apparatus and pasteurizingiliquids covered by said letters patent, together with all article or articles which are used or designed to be used in the pasteurizing, creamery, dairy, milk, butter or ice cream business which might be invented by said parties or ‘ either of them, or upon which they might obtain letters patent; that said Tyson and Stewart received as payment for the rights given under this agreement $100,000 of the common stock and $20,000 of the preferred stock of the said company; that they weré further to receive a royalty of 10 per centum per annum of the gross sale price of the article or articles covered by the agreement; that said agreement provided that should the company fail for six consecutive months to manufacture a reasonable number of said pasteurizers or fail or discontinue manufacturing or go out of business, then in either event, all rights under said agreement should cease and determine as to the company and the interest in said patents revert to said Tyson and Stewart.

It further appears that Tyson became the superintendent of said Miller-Tyson Company and while in its employ made certain inventions and obtained letters patent therefor, and made application for others, all of which are included in the enumeration set forth in the petition; that the expense of experimenting and obtaining letters patent was borne by the Compaq- ; that during the first year of the company’s business, it was fairly successful, but in 1908 losses were incurred in excess of $35,000; that the company continued in financial trouble until on or about January 8, 1910, when bankruptcy proceedings were instituted against it and its affairs subsequently administered in the bankruptcy court.

The evidence discloses further that when the company began to lose money and its affairs became involved, the various persons who had invested money in the concern and who were members of the board of directors became dissatisfied with the license agreement with Tyson and Stewart and expressed a strong1 desire to have the company acquire the absolute ownership of the patents described in the petition. Efforts were made through the agenc3^ of Mr. Stewart, who was the president of the company, to induce Mr. Tyson to agree to assign all of his interest in said patents to the company. Arguments of various kinds based chiefly upon the financial condition of the company and the benefits that would accrue to all concerned if such assignment were made, were advanced by Stewart and finally a conversation took place in the summer of 1909 between Stewart and Tyson, which together with a subsequent report thereof by Stewart to the members of the board of directors made in Tyson’s presence, and with his claimed assent, constitutes the contract which it was sought' to enforce in the court below by the decree of specific performance. Mr. Stewart’s testimony of this conversation is as follows:

“It finally got to the point to where I said to Mr. Tyson sometime in the latter part of May that the company could not proceed any further unless the patents were deeded over by him. At the time I told Tyson that it was the way to look at it; that the company, would have to liquidate one way or the other and he wanted to know what assurances he would have and what benefit he would get out of it, and I said that he was a stockholder the same as we were and we would do the best we could to finance it; that if his machine that he was experimenting with would work, I felt that it would be a much easier matter to carry the thing along than if it did not work. I afterwards reported that to the board meeting.”

In response to the question, “Did Mr. Tyson make a reply to that,” Mr. Stewart testified:

“He finally said that he would do what they wanted, transfer all his patents to the company that he had gotten up in this line of business. I told him that it would be more satisfactory to go ahead and that that would include anything he got up in the future pertaining to ice cream freezers or pasteurizers. ’ ’

Mr. Stewart testifies concerning his report of this conversation to the board of directors in the following manner:

‘ ‘ Q. Did you repeat to the board the conversation you had with Mr. Tyson?
“A. I did.
“Q. Tell what you said to the board?
.. “A. I said that I had a number of conversations with Mr. Tyson; that he objected very seriously at first in turning these patents over, by reason of the fact that he did not know' where he was going to stand; that he had offered to give us those patents with a trustee to be used as collateral, and he made several other propositions but it was impossible to borrow money on the patents, and I explained that to Mr. Tyson and after we had gone over the situation, he consented to transfer the patents # * *.

I took about a half hour to go over the whole thing and explained the negotiations, and I explained it very carefully and told them what Mr. Tyson’s contention was. That he wanted to know if the company was going ahead and do business if he was assured of a position, and I stated to the board that I told him that the company would go ahead and that if his new device would work, we owed him everything that we could to finance it and keep it going, and that he could afford to do business with that understanding as well as we could, and if there was any way to finance it that everybody would make an effort. Different plans were discussed at the same meeting afterwards.

“Q. Let’s not go to financing but continue with these negotiations you had with Mr. Tyson, and what you reported to the board?
“A. I have given the substance of it.
“Q. "When you stated the circumstances to the board of your negotiations with Mr. Tyson, what if anything further was said ?
“A. They seemed to be satisfied with the negotiations I had with him, and I asked Mr. Tyson if I stated it correctly and he said yes.”

The testimony of Mr. Stewart as to his negotiations with Mr. Tyson for a transfer of the patents, while repeated and amplified in other portions of his direct and cross examination, does not materially modify that which is above quoted, and the testimony of the witnesses, other than Mr. Tyson, who heard the report to the board of directors, does not in our opinion substantially, differ from the testimony of Mr. .Stewart on that subject. Mr. Tyson, himself, has a different version of what was said between him and Mr. Stewart and as to the things said and done at the meeting of the board of directors. We do not deem it necessary to attempt to reconcile the conflicting testimony.

Accepting Mr. Stewart’s testimony as above quoted, and considering all the other testimony bearing on the making of the alleged contract and the terms thereof, we are of opinion ^ that the agreement relied upon is totally lacking in the essentials of a contract enforceable by a decree of specific performance and that there has been no such performance, in whole or in part, by said Miller-Tyson Company to require or justify such a decree.

It is a question of grave doubt whether the evidence established any agreement whatever with the company. No action was taken by the board of directors, • by resolution or other formal notice, and the negotiations carried on with Mr. Tyson seem to have been as. much on behalf of the members of the board of directors, as individuals and stockholders seeking to protect their own investments, as with the corporation. Mr. Stewart was asked the question: “Did you receive any orders or instructions from the board as to what you should do touching the further negotiations with Mr. Tyson?” ITis answer was: “I had been requested by each member of the board to see what I could do with Mr. Tyson.” *

This clearly shows no official authority to act on behalf of the company.

Again, in his testimony already quoted, Mr. Stewart said: “I said, that he was a stockholder the same as we were and we would do the liest we could to finance it.”

However, if the doubt expressed be resolved in favor of the view that such agreement as was made was with the company, rather than with the individuals in control of it, the objection above indicated still exists.

The consideration claimed to be found in this agreement for Tyson’s promise to assign his interest in the patents consists of the promise of the company to continue in business and to do the best it could to finance itself.

How long it was to continue in business and the extent of the financial aid it undertook to secure, is left wholly to eonjecture. Could Tyson have compelled the company to specifically perform its part of the agreement by continuing in business, or by financing itself? Obviously, he could not, not only because it is impossible to say how long the business should be carried on, or the amount and character of the financial assistance thé company should gather to itself, but because the undertaking is of such a character that a court of equity would not attempt to supervise its execution. The law governing such a situation is laid down in the syllabus of Matthews v. Traction Co. 25 O. C. C. 652 (5 N. S. 179), affirmed, (no op.) Matthews v. Traction Co. 70 Ohio St. 436, as follows:

“A decree of specific performance will not be granted by a court of equity, where, in order to make the performance, effective, continuous supervision will, be required over personal acts of faith and diligence, and an exercise of judgment, in meeting and adjusting relations to new conditions as they arise. ’ ’

See, also, Marble Co. v. Ripley, 77 U. S. (10 Wall.) 339 [19 L. Ed. 955].

It is well established that specific performance will hot be decreed where the remedy is not mutual; This principle is clearly sta^gd in the syllabus of Cooper v. Pena, 21 Cal. 403, in the language following:

“Equity will not enforce the specific performance of a contract where the party asking the enforcement cannot from the nature of the contract be compelled to perform it specifically on his part. In order that a specific performance." of a contract may be. compelled, the remedy, as well as the obligation, must be mutual, and as a general rule the question of mutuality is to be determined by the contract itself and is not affected by circumstances arising after the contract is made and the rights of the parties fixed.”

See, also, State v. Baum, 6 Ohio 383; Chadwick v. Chadwick, 121 Ala. 580 [25 So. Rep. 631]; Anson v. Townsend, 73 Cal. 415 [15 Pac. Rep. 49].

The agreement relied upon in this case is clearly lacking in the element of mutuality of remedy, if not in mutuality of obligation. But it is claimed on behalf of the defendant in error that the Miller-Tyson Company performed its part of the agreement and that by reason of such performance the objection to want of mutuality of remedy which existed at the time the agreement was made is not available.

It is urged that the company did not go out of business, but continued until the institution of bankruptcy proceedings and that some money was put into the company after the agreement was made, and this is said to constitute such performance as will overcome the objection of want of mutuality.

It does not appear that prior to the negotiations resulting in the alleged agreement 'with Mr. Tyson the company took any action toward going out of business and afterwards its affairs seem to have drifted along in the same manner for a few months until the failure came.

Mr. Stewart in his direct examination was asked the question: “I will ask you what the company did by wray of continuing, business, its manufacturing and business obligations ? ’ ’ His answer was •. ‘! It continued as before. ’ ’

After the agreement was made some money was borrowed by the company. Mr. Corns put in $3870, but took collateral security therefor in the form of bills and accounts receivable. Mr. Stewart advanced $400, but the greater part of this was used to pay interest on one of the company’s obligations on which he was also bound.

We fail to find any satisfactory proof that the company’s continuance in business and the obtaining by it of the advancement of the sums of money mentioned were in performance of the terms of the agreement. All that the company did is as clearly to be referred to the performance' of its obligations under the written contract hereinbefore mentioned and to the pursuit of its business in the regular and customary manner, as to performance under the parol agreement. The language of the court in Dayton, W. V. & X. Tpk. Co. v. Coy, 13 Ohio St. 85, is applicable to this state of facts. On page 94 it is said:

“It may be true, that, ‘if a contract has been executed by the performance of the act forming the consideration for the promise, then it is no answer to an action to say that the plaintiff was not, by the terms of the original contract, bound to do the act, and there was consequently no mutuality of obligation.’ Addison, Contracts 35. But this rule does not appear to be applicable where the act done only constitutes a part of the consideration and shows no assent to the terms of the contract. The objection of the want of mutuality is avoided, because the contract shows a. request to do the act and an agreement to be bound upon its being done, and the doing the act is an assent to those terms. This cannot bé said, where the terms of the contract require more than a silent performance of a part of the consideration, and shows that there was no intention to be bound, unless there was a mutual obligation to perform the other part of the consideration, in its nature concurrent. The rule certainly cannot apply in this ease, where that which is alleged to have been part of the consideration and to have been performed, does not necessarily connect itself with the defendant, and may or may not have been done with the view of assenting to the promise of the defendant.”

If, however, what was done by the company after the parol agreement was made is to be considered as having been done pursuant to the terms thereof, and that it would not otherwise have been done, there still remains the objection that it was at most only part performance. The nature of the undertaking on the part of the company is so vague and indefinite as to render it impossible to say what acts would constitute full performance by it, and for this reason alone, a decree of specific performance against the other party might well be refused. It certainly cannot be said, in any event, that the Miller-Tyson Company, by merely passively continuing in business for a few months and then ending its existence in the bankruptcy court, has so far performed what was agreed by it to be done as to establish its right to a decree for specific performance.

Equity will decree specific performance to one party to a contract only when the other contracting party is tendered full performance or can be made secure in the benefits of his contract. Richards v. Boyle, 36 Ohio St. 37 [38 Am. Rep. 550].

In Marietta & C. Ry. v. Telegraph Co. 38 Ohio St. 24, it was held that:

“.Equity will not compel specific performance, where the benefits of the contract cannot be realized in accordance with its terms.”

It is not claimed that any further performance of the agreement to continue in business and to exert efforts in improving the financial affairs of the company is possible, or that such further performance was tendered and a willingness and ability shown to perform fully. The contention of the defendant in error is that the mere continuance in business of the Miller-Tyson Company, with such acts on its part as were incident thereto, constituted full performance.

As already indicated, we are not prepared to say how long a continuance in business and how great and successful an-effort to raise money would support the claim of full performance, but we are strongly of the opinion that what was done by the company did not amount to such performance.

The right of the plaintiff below to the relief sought must rest upon the contract set forth in the petition and' the proof in support thereof and is not in any way affected by any equitable- features that may have existed under the written license contract before referred to. Much evidence was introduced as to the condition of the company prior to the making of the alleged parol agreement and the considerations thereof, and intimations have befen made in the arguments and briefs of counsel for'defendant in error that the unfortunate condition of the company was due to some fault on the part of Mr. Tyson. The only' possible bearing these matters can have in this case is in connection with the determination of the question whether the agreement on which the action is based was made, and incidentally it is supported by a consideration. No equity can be enforced in this action against Mr. Tyson ¿rising out of his dealings with the company under said written contract.

For the reasons assigned, we are of opinion that the court of common pleas erred in finding for the plaintiff and in entering a decree of specific performance against the defendant, Frank Tyson, and in finding that the defendants, J. C. Corns and Atlee Pomerene, trustee, had no interest in the patents described in their respective answers, as against the plaintiff. The judgment of the court below is, therefore, reversed, and the judgment which said court ought to have rendered will be rendered by this court, and the petition dismissed.

Powell and Voorhees, JJ., concur.