text:
    SUFFICIENT GROUNDS FOR RECISSION OF CONTRACT FOR ■ SALE OF- REAL ESTATE.-
    Circuit Court of Cuyahoga County.
    O. W. Johnson and Susie Johnson v. H. A. Tilden et al.
    Decided, May 10, 1912.

      Fraud — Rescission., of Contract — In Doubtful Case Reviewing Court Will Follow Trial Court as to Weight, of Evidence — False. Representations as to Rental Value Ground for Rescission of Contract.

    1. .In- a contract for the sale of real estate, false representations as to the rental value of the property and as to. the existence- of a.sewer connection in a house, constitute fraud for. which a rescission of contract will 'be'granted.
    2. In an action iir equity' for the rescission of a contract, beard upon " a transcript of the evidence in the court belbw 'where there is some ' ■ -uncertainty as to-the-.weight of the evidence, an appellate court . will accept the conclusions of the trial court which saw the Witnesses face to face, and had better opportunity to -judge of; their credibility. - . .

      H. J. Doolittle, for plaintiffs in error.

      F. G. Scott, contra.
    Dustin, J. (sitting in place of Winch, J.); Pollock, J.'-(sitting in place of Marvin, J.), and Niman,-J., concur.
    This case is here on appeal. It was brought in, the common pleas court-for a rescission of a certain contract, for theVexchañgé of real estate on the ground, of deception and fraud. There was a denial of misrepresentation, denying the knowledge of certain facts, and an assertion that Johnson had warning and an- opportunity-to examine, knew all of the facts and that he ]ater'was satisfied. On the hearing .in the common pleas court, the court, granted the prayer of the petition and gave a decree for a rescission of the contract in quite lengthy terms. The case, is here upon the transcript of the evidence below and upon some new and additional testimony.
   Now, the story of the case.is about as follows:

Johnson had a farm of 117 acres in his wife’s name, which he desired to exchange; Tilden had a lot of city property which he was willing to exchange. ' The two got together through agents, the agent of Tilden being one Hepner. Johnson came to town and looked over the properties, being conducted about by Hepner. He claims that Hepner made misrepresentations as to certain houses on Ninety-First street in two respects; one is as to the rentable value, or rather what the actual rental was, claiming that it was $25 per house for the two houses, whereas the truth of the matter was that the rental was only $18; also that the cellar was adequately drained by a sewer in the street,' whereas it wasn’t drained at all by the sewer, but the laundry tubs in the cellar drained into a cesspool in.the rear, and the cesspool would fill and overflow back into the cellar, and the house was uninhabitable part of the time on account of standing water in the cellar to the extent of several inches in depth; there was no connection of the cellar with the sewer. Also claimed that there was misrepresentation as to the rentable value of other properties on Ninety-Ninth and One Hundred and Twelfth streets. Some of these properties were new and not yet rented, but the claim is that he represented that certain parties were anxious to take them at certain prices, all of which was false and he knew the same to be false. Also that as to the properties on Ninety-Ninth street, there was a misrepresentation as to the gas connection. Gas pipe was there in the house, a new house, and the representation was, according to Johnson, that they would furnish the fixtures according to the choice of the purchaser; that there was connection there, but it turned out that there was no connection at all; there was no gas on the street. Also that there was general misrepresentation as to the value of these properties, Johnson not being acquainted with city values, and the representation was so extravagant that it makes it a case of gross failure of consideration.

Now, as to the matter of rental value of the Ninety-First street houses, it appears that the agent took Johnson to one of the teirants to advise with her, to confirm his story and she reported that the rental was $25 a side, but it afterward appeared in examination of this witness that shortly before the collector of rent had appeared and told her that hereafter the rent would be $25, and it was claimed that was a part of the scheme to deceive Johnson. As to the other tenant of the Ninety-First street houses, she was absent at the time and no information could be obtained from her.

• Later, the parties all met in a law office to talk matters over and to make out deeds and exchange papers. Meantime Johnson had had a tip from one of the tenants as to water standing in the cellar and a statement made that there was no connection with the sewer, whereupon Tilden, being present at this conference, brought up one- Brister or Brisker who had owned the property, to state that there was a sewer there that he had constructed, and that the engineer’s office of the city would show a sewer in that street. That seemed to calm the fears of Johnson, and there was also an explanation as to the rental. He had a tip that it ivas only $18, and the explanation was that if that was the case, and only $18 has been paid for the current month, and that there was some yet due, and in the adjustment of taxes and interest upon mortgages (for all of these properties were encumbered, including the farm, and there had been an adjustment of taxes and interest), there was an allowance of one-half the rental received for that month, which was $18.

The papers were exchanged and some of the properties being new and liable to mechanics’ liens, the deed for Johnson’s farm was placed in escrow, not to be delivered until the time had expired wdthin which mechanics’ liens could be taken. This was in November. At the same time there was found to be due Johnson about $203 which they settled for $200 on the adjustment of interest and taxes and this rent,-and a chock w-as given Johnson for $200, post dated thirty days. Johnson did not discover the pest date on the check and deposited it at once ivith his bank, but it was ultimately returned, as there was nothing due, and one of the claims in the petition is that there is $200 due on that, and that was considered as evidence of fraud, and it appears that there was no money to meet that cheek, nor was it ever paid, but the claim of defendant is that there was a tender made of the amount of that check, and they acknowledge ‘the amount due in the answer and express a willingness to pay it.

It is claimed on the part of the defendants that Johnson was not a farmer but a business man, to some extent acquainted with values; he was anxious for the trade and thought that he was getting the better of the bargain; that he expressed himself afterward as satisfied, and apologized to some extent for some remark he had made concerning their efforts to misrepresent, but it also appears that his apology was made within a few days and before he had come into a full realization of the situation, and that he did not find out about the sewer and all the facts in the ease until later. As against that, there is some evidence tending to show that Tilden, in talking over the matter of the eellar with Johnson, said: “This property' should be raised.”' That Tilden said, referring to this house, “I had bids upon it,, and it would' cost about $40.0 to raise it, and that if he had kept the'property he would have raised the house.”' And he (Johnson) seemed satisfied at'the time. ' "

Also claimed that this representation as to the rental value of these other properties, new, was a near estimate of what they might bring, and they should not be chargeable with any deception there.

The testimony is quite lengthy, and as to the principal’points in dispute is contradictory, especially as to what occurred in the office in the presence of Johnson and Tilden. But upon looking it all over, all the facts and circumstances, all testimony in the case, we have arrived at the same conclusion as the court below. The ease is made out by a preponderance of the evidence. • It is not a very strong ease, but we are inclined to give to the court below the benefit of any doubts we might have as we would to the verdict of a jury, because the situation was before that court'; he could see and hear the witnesses and he has issued a decree for a rescission of the contract.

I should mention, perhaps, the claim that it is too late for rescission.’ AYe do not think so. The farm property is still intact, the personal property which was in the contract for exchange-Was not disposed of, and’was so prevented'by injunction, and as to the mortgages, they may be paid, according to interest due upon them and taxes.

Of course, since the decree below, there have been rents collected by Johnson, of which we have no evidence as. to the amount, and there is rent, of course, on the farm. We haven’t the facts before us to make an exact decree, because we do not know what was collected by Johnson, nor have we any evidence as to the reasonable rent of the farm. There is something yet to be done by the attorneys here. They ought to be able, without much trouble, to make an adjustment of these matters. We will issue a decree for rescission, and a re-transfer of the real estate and personalty, and as to the adjustment of these differences of the taxes and rentals and interest, if the parties can not agree, we will refer the same to a master.

There is some language in the decree below to which we do not quite agree. It is stated in two places that the house was found to be uninhabitable. We think that is putting it too strong. It was not uninhabitable except at times; it was probably unwholesome and uncomfortable, and by reason of the water in the cellar, was not rentable, but it was not uninhabitable. This phrase should be stricken out.

The court also says that the rentals received by Johnson were far less than the amount expended by him; that, therefore, he is not held accountable for the rent, but not stating what they were in either case. That should probably be made more definite.

If counsel will také a cue from what w^ have stated to them and get together upon this situation as it has developed since the decree of the common pleas court, we should be able to approve any agreement they make. If they are unable to agree, they can present the matter to the court for adjustment, or to a master for more accurate determination.


source: Caselaw Access Project

license: Public Domain

text:
    CONSTRUCTION OF A DISCHARGE IN BANKRUPTCY.
    Circuit Court of Cuyahoga County.
    The National City Bank v. Abraham C. Wertheim et al.
    Decided, May 10, 1912.

      Bankruptcy■ — Discharge in Bankruptcy of Individuals Doing Business as Partners Discharges from Individual Liability.

    Where partners have all signed a bankruptcy petition individually, setting up that they have surrendered their property individually as well as a partnership, were all adjudicated bankrupts individually as well as a partnership, but the final order of the court was that they were discharged from provable claims against them as partners, the discharge relieved them from any individual liability for the debts of the partnership.

      Hidy, Klein & Harris, for plaintiff in error.

      Max E. Meisel and J. H. Sampliner, contra.
    Dustin, ,7. (sitting in place of Winch., J.); Pollock, J. (sitting in place of Marvin, J.), and Niman, J., concur.
    This is an action brought for the balance due upon certain promissory notes.- There is an answer-setting up a discharge in bankruptcy in certain proceedings in which a petition was filed by Wertheim and two partners, doing business as the Nortern Ohio Cigar Company. The reply makes the issue, however, that the discharge was not of the individual partners, but of the partnership, and the question, of course, arises upon that, in view of the record.
   Now the petition was by the partners individually; they all signed the petition; they set up that they have surrendered their property individually as well as a partnership, and scheduled the same. They were all adjudicated bankrupt individually as well as a partnership, but when it came to the petition for discharge, the order of the court was that they were discharged from provable claims against them as partners, doing business as the Northern Ohio Cigar Company, and it is claimed Under that discharge, that the defendants named herein are not individually relieved.

With such a state of facts and the briefs, which were quite elaborate and learned, and oral arguments which were quite helpful to the court also, we have reached the following conclusion :

We think the weight of authority and the better reasoning are in accord with the views announced by Judge Chapman in his written opinion in this ease.

The petition in bankruptcy was signed by the partners individually, and the entire individual estates were scheduled and surrendered for the partnership creditors, there being no individual debts alleged or proven. As individuals, they were adjudged to be bankrupts. That would have been untrue and an improper judgment, if either member of the firm had retained any estate available to creditors.

The presumption is that it was true and founded upon sufficient evidence and the parties were, therefore, entitled to a discharge. The discharge was “from all debts and claims which are made provable by said act against their estates as partners,” etc.

Plaintiff’s claim (like all others) was a partnership claim, and was extinguished under the bankruptcy act, by the surrender of the partners’ “estates,” as well as the partnership property.

There was no need of a discharge from individual indebtedness, because there was none. And as to plaintiff’s claim, we think there was a specific discharge from all in its class.

In disfinguishing the authorities, we think the. point is well taken that the eases favorable to plaintiff’s view arise under involuntary bankruptcies, where acts of bankruptcy may be committed by the partnership, not applicable to the individual members, who are not covered by findings as to the partnership. But in the case at bar there was a petition by all the partners individually as well as a firm, and a surrender of both kinds of property, giving the court the widest latitude in its decree, of which latitude we think it has taken advantage. The fact that one of the partners, out of an abundance of caution, thought best to file a separate petition, can have no effect upon the scope of validity of the other decree, and does not indicate the views or intentions of the court with reference thereto. - : '

The judgment' will therefore be affirmed in this, as in two similar cases, 5071 and 5072, in which the same questions are involved.


text:
    LAND DAMAGED BY WATER. DUE TO CHANGE OF GRADE OF STREET.
    Circuit Court of Summit County.
    Joachim Evers v. City of Akron.
    Decided, October 12, 1912.

      Waters — Municipal Gorporalion Liable for Increasing Mow of Surface ’ Water.

    A municipal corporation is liable to a land owner for damages resulting from an increased flow of surface water upon his land, cansed by a change in street grades by which water is brought from another street to that upon which the land abuts and from which.it flows upon the land.

      Hollaway & Chamberlain, for plaintiff in error.

      J. Taylor, City Solicitor, and — Kemfield, contra.
    Winch J.; Marvin, J., and Niman, J., concur.
    The plaintiff sued the city for damages to his property abutting on West Tallmadge avenue in the city of Akron, just west of the intersection therewith of Cuyahoga street, occasioned by the change of grade of Cuyahoga street, which street, he claims, formerly carried the surface water accumulating and flowing thereon, away from said intersection, but after the change in grade, carried it toward said intersection and to and upon plaintiff’s premises, washing gulleys in West' Tallmadge avenue.in front of plaintiff’s premises and through his premises, filling up his well and depositing so much gravel upon his'land as to make it unfit for cultivation.
   The evidence introduced by plaintiff shows that his premises are much lower than the grade of either Cuyahoga street, which runs north and south, or West Tallmadge avenue, which runs east and west. It -was the grade of Cuyahoga street that was changed, not the grade of the street upon which plaintiff’s premises abut.

Evidence was also introduced by the plaintiff tending to show that by the improvement of Cuyahoga street surface water which was accustomed theretofore to flow away from plaintiff’s premises, was accumulated and caused to flow toward and upon his premises and that he had suffered damage therefrom.

At the close of plaintiff’s evidence the court directed a verdict for the defendant, upon the theory, as we are advised, that surface water is a common enemy, which the lot owner may fight by raising his lot to grade, or in any other proper manner, and that the municipality has the undoubted right to bring its streets to grade, and has as much power to fight surface water in its streets as the adjoining priyate owner.

'This doctrine has some endorsement in Dillon on Municipal Corporations, 5th Edition, Sections 1731 to 1745 inclusive. It also has some sanction in the ease of Springfield v. Spence, 39 O. S., 665, see page 671.

Farnham on Waters denies there is any such rule, and says that its origin and scope are shrouded in mystery.

The latter authority is quoted with approval by Judge Summers, in the case of Mason v. Commissioners, 80 O. S., 151, where he also collects many cases on the flow of surface waters. He also says (page 180.) :

“The law in this state is in harmony with-the cases that have been quoted from at such length and they have been quoted from at such length only because of the importance of the questions presented, and -because of the seeming difficulty many times in applying the law to the facts.”

Let us examine some of his quotations.

.“The owner of the upper ground has no right to make any excavations or drains by which the flow of water is directed from its natural channel and a hew channel made on the lower ground; nor can he collect into one channel waters usually flowing off into his neighbor’s fields by several channels, and thus increase the wash upon the lower fields. ’ ’
“If the owner of the upper ground wrongfully direct an unnatural quantity of water upon the ground of a lower neighbor, by collecting several streams together and discharging them at one place, or by any other moans, the neighbor below may have an action against him.”
“The diversion by a land owner of surface 'water, collecting on his land from rain and melting snow, out of the course which nature has provided for it, in such a way as to cause it to flow upon the land of another where it has not flowed before, is an actionable trespass.”
“While the owner of the lower lands shall receive all water that naturally flows from the next higher lands, the owner of the higher lands may not open or remove natural barriers, and let on such lower lands water that would not otherwise naturally flow in that direction.”
“It is now well settled that neither a corporation nor an individual can divert water from its natural course so as to damage another.”
“A lower tenement is under a natural servitude to a higher one to receive from it all the surface water, accumulating from falling rains and melting snow, or from natural springs that naturally flow from it to and upon the lower one. This advantage of the higher tenement is a part of the property of the owner of it, and he is not indebted to the lower tenement therefor. ’ ’

This last quotation is from the syllabus of the case of Blue v. Wentz, 54 O. S., 247; the syllabus of the case of Mason v. Commissioners, 80 O. S., 151 conforms to it.

• The record of the case at bar tends to show that the defendant changed the natural flow of the water on Cuyahoga street, collected into one channel water that usually flowed off upon the lower lands by several channels and discharge it at one place, thereby materially increasing the wash upon plaintiff’s fields. The record seems to show that the damage complained of by plaintiff was occasioned by water that would not naturally have flowed, in his direction.

As he was not an abutter upon the street, the grade of which ivas changed, he never had , an opportunity to be compensated for any damage that change of grade might occasion him.

It is the settled law of this state; though Dillon also criticizes the Ohio eases which enunciate it, that “a municipal corporation, like an individual, is liable for injuries resulting to the property of others from the acts of such corporation, though acting within the scope of its corporate authority, and without any circumstances of negligence or malice.” McComb v. Akron, 15 Ohio, 474.

It is therefore liable for damages resulting from a violation of those rules of law which concern the flow of surface waters, the same as any individual might be liable.

The petition and the evidence in this case would have been sufficient to warrant its submission to the jury, if the defendant had been an individual. This being so, the fact that the defendant was a municipal corporation did not warrant the ease being taken from the jury.

A case something like this is reported in 12 C.C.(N.S.), 220, where the city of Cincinnati was held liable for unnecessarily collecting and casting upon plaintiff’s premises more surface Avater than Avould naturally flow thereon. There an eight-inch pipe Avas emptied by the city on the hillside back of the plaintiff’s premises. It was probably a drain for surface water from some other street.

Judgment reversed and cause remanded for further proceedings.


text:
    PROSECUTION FOR ILLEGAL PRACTICE OF MEDICINE.
    Circuit Court of Summit County.
    Lyman D. Triplett v. State of Ohio ; and Ora L. Brown v. State of Ohio.
    Decided, October 12, 1912.

      Constitutional Law — Evidence—Indictments—Laws Regulating Examination and Registration of Medical Practitioners Constitutional —Chiropractic and Magnetic Healing Practice of Medicine — Evidence of Training Not Admissible in Prosecution for Violation of Laws Requiring Examination and Registration of Medical Practitioners — Indictment; When Not Bad for Duplicity.

    1. Sections 1286, 1287 and 12694, Ohio General Code, relating to the appointment and powers of the state board of health and the state board of medical examination and registration, and providing for examination and registration of those practicing medicine, are a proper exercise of the police power and are constitutional.
    2. Advertising -to cure by chiropractic treatment, or by magnetic healing, or taking fees for treatments under those systems, is practicing medicine within the meaning of the statutes requiring examination and registration of medical practitioners.
    3. In a prosecution for violating the statutes regulating the practice of medicine, testimony on behalf of the accused, relating to the course of study which he pursued in preparation for his profession and that his treatments did not consist of administering drugs or performing surgical operations, is not admissible.
    4. Where a statute declares the doing of any one of several things to be practicing - medicine, an indictment which charges the accused with having done all of them is not bad, and he may be found guilty, if the evidence at the trial establishes the fact that he did any one of them.

      W. J. Laub, L. D. Slusser and H. M. Hagelburger, for plaintiffs in error.

      F. J. Rockwell, contra.
    Winch, J.; Marvin, J., and Neman, J., concur.
    These two cases are considered together because they both involve convictions for violating the statutes regulating the practice of medicine and have many propositions in common. The constitutionality of the law under which the accused were convicted is attacked in both cases.
   Neither of the accused held a certificate obtained from the state medical board in the manner required by law. •.

Lyman D. Triplett was tried by the Probate-Court of Summit County upon an affidavit filed with it specifying.that he had used the title “Prof.” in connection with his name upon .cards with which he advertised that he was a “Class School Graduate of the Weltmer School of Suggestive Therapeutics (Magnetic Healing).” “Every Known Disease Cured Without Medicine or Surgery. Office Treatment. Home Treatment. Absent Treatment. Thousands Cured via this Drugless Route. ’ (- That he, for a fee, examined and-diagnosed a certain bodily infirmity or disease of one Louise Zimmerly as hardening of the arteries and, for a fee, prescribed, advised, recommend d and administered a certain application, agency, operation and treatment to affiant unknown, for the relief of said bodily infirmity or disease.

Ora L. Brown was tried by the Common Pleas Court of ^Suim mit County upon an indictment specifying .that he had used the letters “D. C.,” being an abbreviation of and meaning Doctor of Chiropractice, in connection with his name, thereby representing that he was engaged in the practice of medicine and surgery for the cure, relief and treatment of bodily infirmities and diseases; that he, .for a fee, examined and diagnosed a certain bodily infirmity or disease of one Jacob A. Kepler, as partial paralysis and, for a feé, prescribed, advised,'recommended" and administered a certain application, agency, operation and treatment, the name of which is chiropractic adjustment, and the nature of which is a manipulation or pretended adjustment of the vertebrae of the spinal cord, for the relief of said 'bodily infirmity or disease. -

The sections of the General Code upon which the prosecution of these cases were based are 1286, 1287 and 12694.

These sections are derived from the act of May 9, 1908 (99 O. H, 492), revising and consolidating the laws relating to the appointment, powers and duties of the state'board "of health, the state board of -medical registration and examination, etc. Said act contains former acts regulating the practice of medicine, and amendments thereof, which have been passed upon by the Supreme Court of this state, their constitutionality being upheld.

There is nothing new in the sections of the General Code referring to the practice of medicine which has not been settled by the decisions of this state, so that it may be said that their constitutionality is no longer an open question

The following quotations from the leading Ohio cases on the subject make that point plain:

“The giving of Christian Science treatment for a fee for the cure of disease is practicing medicine within the meaning of the statutes regulating such practice in this state.
“The statute making it a misdemeanor to give such treatment for a fee is not an interference with the rights of conscience and of worship conserved by Section 7 of the bill of rights, and is not on that ground unconstitutional.
“Legislation prohibiting any one from treating a disease for a fee excepting such persons as have prescribed qualifications, is a valid exercise of the police power of the state and is constitutional. ' ;
“The act regulating the practice of medicine in this state exacts reasonable qualifications and excludes no one possessing them and it is not void as discriminating against Christian Scientists in that it prescribes that any one possessing certain qualifications may practice ostheopathy, and does not make special provision fur those who wish to practice Christian Science.*’ State of Ohio v. Marble, 72 O. S., page 21.
“That the practice of medicine may be regulated by legislation has been decided in every court in which the question has arisen. In the leading case. Dent v. W. Va., 129 U. S., 114-122, Mr. Justice Fields says: ‘The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure, or tend to secure them against the consequences of ignorance and incapacity, as well as or! deception and fraud. As one means to this end it has been the practice of different states from time immemorial, to exact in many pursuits a certain decree of skill and learning,’ ” etc. State of Ohio v. Marble, 72 O. S., page 34.
“That the Legislature in its wisdom, might prescribe a uniform examination, we do not doubt, and that it may recognize one school without recognizing all, is also true, if the recognition be in the exercise of proper classification and for the public welfare, and not with a view to create a monopoly in the schools recognized or a discrimination against other schools. Parks v. State, 159 Ind., 211; State, ex rel Kellog, v. Currens et al, 111 Wis., 431; Scholle v. State, 90 Md., 729.” State of Ohio v. Marble, 72 O. S., page 38.
“ The power conferred upon the state board of medical registration and examination is administrative in character, and not judicial within the meaning of Section 1 of Article IV of the Constitution of the state.
“It is competent for the state, under its power to provide for the wedare of its people, to establish needful regulations and impose reasonable conditions calculated to insure proper qualifications, both with respect to learning and moral integrity, of persons desiring to engage in the practice of medicine in the state, and require compliances therewith by such persons before they shall be permitted to practice within the state. The regulations adopted by this statute are of that character, and do not infringe upon the privileges and immunites guaranteed by Section 2, of Article IV, of the Federal Constitution to citizens in the several states, nor abridge those secured to citizens of the United Stales by the fourteenth article of amendment of that Constitution.” State v. Mosier, 78 Ia., 321.
“The right to labor and enjoy the rewards thereof is a natural right which may not be unreasonably interfered with by legislation where, however, the pursuit concerns in a direct manner, the public health and welfare and is of such a character as to require a special course of study or training, or experience to qualify one to pursue such occupation with safety to the public interest, it is within the competency of the General Assembly to enact reasonable regulations to protect the public against evils which may result from incapacity and ignorance.” State v. Gardner, 58 O. S., 599.

In the opinion in the Gardner case, the court say:

“The acts referred to fall within the exercise of the police power of the state, that power, conceded to reside in the people’s representatives, which is rightfully exercised by the regulation of the use of private property, or so restraining personal action, as to secure, or tend to the comfort, health or protection of the community. Further examples of its exercise are found in-the latos which require study and examination before one is per- milted to practice law or medicine or engage in the occupation of a dentist or a pharmacist.” State v. Gardner, 58 O. S., 606.

In the above case it was held-that the business of plumbing, while not to be ranked with the professions as to degree of learning, is one which is so nearly related to the public health that it may with propriety be regulated by law, and reasonable regulations tending to protect the public against the dangers of careless and inefficient work and appropriate to that end do not infringe any constitutional right of the citizen pursuing such calling.

In the case of State of Ohio v. Liffring, it was held:

“The system of rubbing and kneading the body, commonly known as osteopathy, is not an ‘agency’'within the meaning of the act of February 27th, 1896, ‘-to regulate the practice of medicine’ (92 O. L., 44), -which forbids the prescribing of any drug or medicine or other agancy for the treatment of disease by a person who has not obtained from the board of medical registration and examination a certificate of qualifications.” State v. Liffring, 61 O. S., 39.

In the case of State v. Cravett, it was held that:

“The system of rubbing or kneading the body, commonly known as osteopathy, is comprehended within the practice of medicines defined by Section 4403/ of the Revised Statutes as amended by the act of April 14th, 1900 (94 O. L., 200).” State v. Cravett, 65 O. S., 289.

• In distinguishing the two cases, the court said that in the Liffring ease, as the statute then stood, by applying the doctrine noscitur a sociis, the application of which doctrine was called for by the statute as it then stood, the rubbing or kneading process, commonly called osteopathy, was not included within the terms of the statute, while, in the..Cravett case the amendment .to the statute, which had been made since the former case, made the act so comprehensive that the above doctrine could be of no aid in construing the statute, and that the process, of kneading and rubbing the body, commonly called osteopathy, was included within the sratute as amended. The court in the Cravett ease, however, found the act of April 14, 1900 (94 O. L., page 2Ó0), to be defective in that it discriminated against osteopaths by requiring them to hold diplomas from a college which requires four years of study. At the next session of the Legislature the act was again amended (95 O. L., 212) so as to rid the statute of this vice by eliminating the four year requirement for osteopaths.

About forty objections to the form of the affidavit in one case and the indictment in the other case were presented in the lower courts and overruled. They have been presented for review here, but we find that in both cases the accused were informed of the charges against them with that definiteness and certainty that the law requires.

In the Brown case it is further contended that the court erred in refusing to permit him to testify that he did not practice medicine on the day in question.

There ivas no error in this. The question simply called for Brown’s conclusions as to what he did and his own characterization of his own acts. His acts were before the jury, and it was for-the jury to determine whether those acts amounted to practicing medicine contrary to law.

In the Triplett ease certain rulings on evidence are complained of.

The trial judge refused to allow the introduction of any evidence to show what the Weltmer School of Suggestive Therapeutics was, and likewise what magnetic healing consisted of, for the purpose, as claimed, of showing that the advertising matter set- up in the information could not reasonably have represented plaintiff in error to be engaged in the practice of medicine or surgery.

The trial judge also refused to permit the accused to show by other witnesses than himself that his practice, whatever it was, was not the practice of medicine or surgery.

This is practically the same point that was made in the Browm case, and nothing further need be said about it. It was not for the witness, but for the jury, 1o determine the character of his practice.

Both of these questions, however, have been adjudicated by the Supreme Court.

From the record of the unreported case of State v. Hughes, 83 O. S., 445, it appears that the prosecuting attorney excepted to the admission of evidence on behalf of the defendant in the following particulars:

“Fifth. Testimony of the defendant concerning his course of study and preparation for his profession as healer.
“Sixth. Testimony of the defendant as to the nature of his treatments. That the same did not consist of administering drugs or performing surgical operations.”'

The judgment of the Supreme Court is: “Exceptions sustained. ’ ’

This is sufficient to show that the Supreme Court considered that the trial judge in the Hughes case erred in admitting evidence that was ruled out in both the Brown and Triplett cases.

The objection to the reading of the coroner’s minutes of what Triplett said at the inquest is not well taken. The record shows that counsel for the accused consented to the reading thereof.'

The charge of the court in the Triplett case is brought to our attention. The complaint is that it divided the offense charged in the information in such a manner as to lead the jury to believe that the violation of the statute could be committed in any one of three ways.

On this subject the charge is as follows:

“I further charge you as a matter of law, that it constitutes practicing medicine or surgery in the state of Ohio to do any or all of the following acts or things, before having obtained a license or certificate from the state medical board of Ohio, to-wit:
“ (1) To use the words or letters ‘Dr.’, ‘Doctor’, ‘Professor’, ‘M.D.’ ‘M.B.’ or any other title in connection with one’s name which in any way represents one as engaged in the practice of medicine or surgery in any of its branches.
“(2) To examine or diagnose for a fee or compensation of any kind.
“(3) To prescribe, advise, recommend, administer or dispense for a fee or compensation of any kind direct or indirect a drug or medicine, appliance, application, operation or treatment of whatever nature for the cure or relief of a wound, fracture, or bodily injury, infirmity or disease. And if you find beyond a reasonable doubt, as I shall define that term to you, that the defendant on or about the 21st day of August, 1910, or on or about the 22d day of September, 1910, did any one or all of the matters and things which constitute the practice of medicine, as 1 have defined it to you, then you should find the defendant guilty.”

This charge was correct.

' A statute often makes punishable the doing of one thing, or another, sometimes specifying a considerable number of things. Then by proper and ordinary construction a person, who, in one transaction does all, violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore, an indictment on such a statute may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction “and” where the statute has “or,” and it will not be double, and it will be established at the trial by proof of any one of them. Bishop’s New Criminal Procedure, Volume 1, Section 436.

We find no error in the record of these judgments and they are affirmed.


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    VALIDITY OF A CONTRACT FOR SALE OF REAL ESTATE.
    Circuit Court of Cuyahoga County.
    The Taylor Land & Improvement Company v. Frank H. Elworthy.
    Decided, November 13, 1913.

      Contracts — A Contract Resists Upon the Meeting of the Minds Upon all Material Points.

    A written contract for the sale of certain real estate which is definite as to the subject-matter of the contract, the amount to be paid and the dates of payment, shows a meeting of the minds on all the material parts of the contract and it is not rendered unenforceable by the fact that a blank space was left to be filled in with a list of second mortgages to be taken as collateral to secure the payment of the purchase money when due. -

      A. C. Waíd and Geier, Farrell & Edwards, for plaintiff in error.

      Dellenbaugh, Newman & Heintz, contra.
    Marvin, J.; Winch, J., and Niman, J., concur.
    The real question in this case is whether the parties hereto entered into a contract on the 13th day of April, 1909. If they did, the plaintiff is entitled to recover in this action, for it is not claimed that the defendant has performed any such contract, while it is clear from the evidence that if what was done by the parties on that day constituted a contract between them, there has been no failure to perform on the part of the plaintiff.
   On the date mentioned the parties both signed in duplicate a written instrument, each taking a copy.

The clauses of said writing especially to be considered to determine whether it constitutes a contract, read as follows:

"The party of the first part hath this day agreed to sell unto the party of the second part the following described tract or lot of land’ (describing it) ‘‘and the said party of the second part doth hereby agree to pay to the said party of the first part, its successors or assigns, for the land aforesaid, the sum of thirteen thousand two hundred and ninety dollars ($13,290), being the value of said premises, payable as follows: The said Frank IT. Elworthy is to execute his promissory note of even date for said sum of $13,290 payable in sums of $.135 per month, said promissory note to be secured by the following notes and second mortgages as collateral.”

This last sentence is not followed by any list or description of any notes or mortgages, the next W'ords reading, ‘ ‘ together with interest thereon from this date,” etc.

On the part of the defendants it is urged that this omission to náme the contemplated collateral show's that the minds of the parties never met, and that there was therefore no contract.

We do not regard this contention as sound. Their minds did meet on the terms of the sale. The plaintiff was to sell the premises to the defendant for a definite sum of money, which sum the defendant promised to pay at a fixed rate per month, and fio evidence this he was to give his promissory note.

The language quoted indicates that the parties contemplated that certain collateral security would be given but there was a distinct promise to sell at a price; there was a distinct promise to pay that price in fixed installments, and to evidence such promise to pay installments by a promissory note. Nothing else was fixed by this contract, but all these things were fixed.

If it be urged that this blank in reference to the collateral shows that the minds of the parties did not meet, to a degree, at least, the same argument might be urged because of another blank in the instrument as to insurance, in the following sentence: “Said grantee agrees to have and keep the buildings upon said lot insured in the sum of $-in company,” etc.

It would hardly be urged that because of this blank there was not a meeting of minds, to such degree as to constitute a contract between the parties.

Take the next clause of the sentence relative to insurance; it reads: “In a company to the full satisfaction of said first party."

A claim that there was no contract because the minds had not met upon the particular insurance company, whose policy should be obtained, would surely not be sustained.

If we go to the oral eviclenee to determine whether the minds had met, and if from that we should find that the entire contract was not expressed in the written instrument, we should have to find that they did meet upon the proposition that collateral security, in the form of notes and second mortgages to the satisfaction of John W. Taylor, was to be furnished.

This is as definite and complete a meeting of the minds as there is a building contract which provides that materials and workmanship are to be to the satisfaction of an architect; and yet this is the common form of such contracts, and they are universally upheld. Page on Contracts, Sections 349 and 1380.

We conclude, therefore, that if there were nothing in the oral evidence to modify the writing, it constitutes a contract. If the same is modified by the oral evidence, such modification is simply that the clause as to the collateral was to be that they were to be such as were satisfactory to John W. Taylor; that this does not make the contract void for uncertainty, and that, therefore, there was a valid contract between the parties and that the defendant has failed to perform.

There is a provision in this contract that failure to pay as stipulated, for three days after any payment becomes due, shall authorize the plaintiff, at its option, to declare all the remaining payments to be due. Nothing has been paid by the defendant; the plaintiff has exercised the option by bringing this suit and is entitled to an accounting of the amount of purchase money and interest remaining unpaid, together with taxes, etc., and to an order that unless the. defendant, within a day to be named by t.he court, shall pay in full the amount so found due, the premises be sold and the avails be applied to the payment of the costs in this action, and to the payment of the amount due the plaintiff.

Decree accordingly.


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    PROMISES MADE WITHOUT CONSIDERATION NOT ENFORCIBLE.
    Circuit Court of Cuyahoga County.
    Emma S. Townsend v. The Citizens Savings & Trust Co.
    Decided, December 16, 1912.

      Contracts — When Mutual Promise to Malte Gifts Not a Consideration — ■ Deed Absolute, When Treated as Mortgage.

    1. Mutual promises to make gifts can .not be enforced by the donee, even if some of the donors complete their gifts, unless the donee is an educational, religious or philanthropic institution, or has expended money or incurred obligations arising from the acceptance of the promise; hence, mutual promises to contribute 'toward the payment of the debt of another furnish no consideration for the promise of one of the number, under no obligation to the promisee, who relinquished no rights and incurred no obligations by accepting such promise.

      2. A deed executed to secure the payment of money will be treated in equity as a mortgage and not as an absolute conveyance, and when the grantor retains possession of the land such deed is voidable in so far as it was given to secure the payment of an obligation not . the grantor’s and for which the grantor received no consideration.

      A. A. & A. H. Bemis, for plaintiff.

      M. B. & U. H. Johnson and C. B. Mergerth, contra.
    Winch, J.; Marvin, J., and Meals, J., concur.
    This is an action by plaintiff to have a deed, absolute on its face, declared a mortgage, for an accounting of the amount due thereon and redemption of the premises.
   The deed in question was executed by plaintiff and her husband, F. II. Townsend, August 6, 1907, to David Morison, and at the same time an instrument in writing was executed, which witnessed that said premises were held by said Morison in trust, first, as security for the payment of the indebtedness owing by the grantors to the Dime Savings & Banking Company, and secondly, as security for the payment of the indebtedness of one John P. Cowing to said bank.

Plaintiff’s indebtedness to the bank at that time was about $18,000; it is now somewhat less. Cowing’s indebtedness to the bank was nearly $300,000.

Since the execution of the deed to Morison the Dime Savings & Banking Company has failed and its assets have all been turned over to the defendant, the Citizens Savings & Trust Company, to which company Morison, in pursuance of his trust and upon request of the Townsends, has deeded the premises described in the deed to him, the latter company to hold said premises upon the same trusts upon which it was conveyed to Morison.

The Citizens Savings & Trust Company has since sold the premises to one Harry E. Chapman, who had full notice of the title and facts in the case, and the latter mortgaged them to the Guardian Savings & Trust Company, which company we find took without notice of plaintiff’s claims.

Plaintiff is ready to pay the balance now due on her own original indebtedness to the Dime Savings & Banking Company, but says that she ought not to be compelled to pay any of the Cowing indebtedness to that bank for two reasons; first, because she was mislead by the agent of the bank into signing certain papers in which she assumed the Cowing indebtedness to the bank, and second, because there was no consideraron for her assumption of said Cowing indebtedness.

As to the first proposition, it is sufficient to say that the evidence does not sustain plaintiff’s claim.

The second proposition is more difficult.; it involves a consideration of two written instruments signed by plaintiff and others, one dated August 6, 1907, and executed contemporaneously with the deed to Morison, and the other dated October 18, 1907. Copies of these two agreements are appended to this opinion, but their contents will be stated as briefly as possible.

The writing- dated August 6, 1907, is a three-party agreement; the first parties are plaintiff and her husband, F. PI. Townsend; the second party is Charles A. Post, and the third party is David Morison. This agreement recites that the parties “have done and agreed to do as hereinafter stated, the consideration for the things done and agreed to be done by each party being those done and agreed to be done by the other parties. ’ ’

Then follows a statement that first parties, for the purpose of securing payment of the indebtedness of John P. Cowing to the Dime Savings & Banking Company, have conveyed to third party the land here in question, subject to the right of the bank to require said land to be applied in satisfaction of any indebtedness owing to it by first parties jointly. Frank PI. Townsend also pledges certain stock for the same purpose, and there is a provision for the application of securities pledged by Cowing and his wife on his own indebtedness. Second and third parties, for the purpose of further securing the indebtedness ot Cowing to the bank, agree that after the securities of Cowing and his wife and the securities of first party, so far as applicable, have been applied by the bank to Cowing’s debt, they will each pay one-half of the balance of Cowing’s indebtedness to the bank, not exceeding, however, $50,000 for each of second and third parties. Second party also pledges to the bank certain securities as collateral for his promise.

Tlie evidence does not show any obligation on the part of plaintiff to pay the bank any part of the Cowing indebtedness, unless that obligation was created by this instrument, or the one of October 18,1907, which will be referred to later. Whether F. H. Townsend, Charles A. Post or David Morison were under any obligation to the bank to pay any part of the Cowing indebtedness,. is immaterial. If they were not, then all the parties to the three-party agreement were volunteers, so far as the Cowing debt was concerned, and their promises in behalf of the bank would be gratuitous; if all but plaintiff owed some moral or legal duty to the bank, growing out of the Cowing claim, that duty from them to the bank does not make the obligation of Mrs. Townsend any stronger; on the contrary, it weakens it.

It is clear that the three-party agreement was made for the benefit of the bank, although it was not a party to the agreement. It is equally clear that no consideration moved from the bank to plaintiff for her promises contained in this agreement; from it arose no benefit to her nor detriment to the bank.

It is claimed by defendant, however, that consideration for plaintiff’s promise is found in the promises of David Morison and Charles A. Post to each pay one-half of the indebtedness of Cowing to the bank after the application thereto of the Cowing securities and the Townsend securities.

To analyse this claim, let us assume that none of the parties were under any obligation to pay the Cowing debt. Then all of them, as is certainly true of Mrs. Townsend, were promising to make gifts to the bank.

Mutual promises to make gifts can not be enforced by the donee, even if some of the donors complete their gifts, unless the donee be of the character found in the ease of Irwin, Admr., v. Lombard University, 56 O. S., 9, or has expended money or incurred obligations arising from acceptance of the promise. No such qualifying circumstances are found in this case.

If the other parties were under some obligation to the bank to make good Cowing’s debt to it, then, as- was said before, its claim upon Mrs. Townsend’s promise to make a gift is weakened, not strengthened. Piad they not completed their promises they could have been compelled by the bank to keep them, but that fact would have completely wiped out any apparent consideration moving from Morison or Post to Mrs. Townsend, in the guise of detriment to them, or benefit to her; nor could her promise then be said, in the language of the case cited, to “in any manner influence the conduct of others.”

So far attention has been given only to the question of consideration for Mrs. Townsend’s promise to pay Cowing’s debt, as contained in the three-party agreement of August 6, 1907. The deed to Mprison securing that promise, has not been mentioned.

Were that instrument an ordinary mortgage, it is conceded that this case would be ruled by the ease of Kuzell v. The Citizens' Savings & Trust Company, No. 5034, decided by this court February 13,1912, where it was held that consideration is needed to support a mortgage and that the antecedent debt of a third person is not in itself sufficient consideration to support a mortgage given to secure that debt, but the mortgage must have some new consideration to support it.

It is urged that this was held upon the theory that in this state a mortgage does not pass a legal title until default and possession taken by the mortgagee, but gives only a lien, a contractual right, which requires consideration to support it.

The deed to Morison was absolute on its face; it contained no defeasance clause. It was intended, however, to secure the payment of money and the property was to be reconveyed upon such payment. Mrs. Townsend remained in possession of the premises and the deed must, in equity, be treated as a mortgage, though not a legal one. This is so because equity looks to the substance and not to the form; it gives effect to the intention of the parties. Kemper v. Campbell, 44 O. S., 210; Bank v. Tennessee Coal, Iron & R. R. Co., 62 O. S., 564.

This action is between the original parties to the instrument, their privies or those holding with notice of the equities (except the Guardian Savings & Trust Company, whose rights will hereafter be mentioned).

If the deed to Morison is to be treated as a gift, as defendants claim, on the theory of their case now being examined, then there must have beeen an intention on the part of Mrs. Townsend to make a gift, consummated by delivery. Delivery of what? Not of the deed, which she did not intend as an absolute conveyance, but of the land itself, and of this she retained possession.

We consider that neither in the three-party agreement' nor in the deed, both executed August 6, 1907, is any consideration found for Mrs. Townsend’s promise to pay Cowing’s debt, and that neither show an executed gift from Mrs. Townsend to the bank.

It remains to consider whether any Such consideration can be found in the agreement of October 18, 1907.

That instrument was signed by the same four persons; it was not signed by the bank. It purports to be a request from said four persons to the bank to accept certain mentioned notes of Cowing to the bank “as evidencing portions of his indebtedness now due said company, and also as evidencing his agreement to repay the same,” and recites that “in consideration of said company accepting said notes, we each agree with said company to be bound by and to do and perform the things stipulated as done and to be done by us, respectively, by the terms of a certain writing bearing date August 6, 1907,” etc., and “that said company may from time to time extend time for payment of any of the said notes,” etc.

This writing doubtless was intended to furnish consideration for the instruments of August 6, 1907, but it fails to do so, because the evidence shows that the notes mentioned in this writing were in the possession of the bank at the time Mrs. Townsend signed this last agreement and were held by it as collateral, only, to Cowing’s original indebtedness, and, as the writing itself states, these notes were held “as evidencing portions of his indebtedness now clue” the bank and “his agreement to repay the same.”

Under this agreement the bank suffered no detriment and Mrs. Townsend gained nothing.

Notwithstanding this agreement the bank could still have sued Cowing on this original indebtedness; it did not accept the notes mentioned as payment of any part thereof, nor extend or agree to extend time for payment of the indebtedness to which his said notes were collateral.

It follows tliat. neither the Dime Bank, its trustee, Morison, his successor in interest, the Citizens Savings & Trust Company, nor any of the defendants claiming under it, for they took with notice, except the Guardian Savings & Trust Company, are entitled to hold the premises described in the deed to Morison otherwise chan as security for Mrs. Townsend’s individual and original indebtedness to the Dime Bank.

The Guardian Savings &■ Trust Company holds a mortgage on the premises for ‡15,000. Tt is an innocent purchaser for value without notice, as shown by the evidence. Its claim must be protected. Protection will be afforded it by requiring plaintiff to redeem from it, to the amount of its claim, paying the balance, if any, due from her on her indebtedness to the Citizens Savings & Trust Company. We understand that the other parties, as between themselves, have protected their own rights, or can arrange with regard to them.

Judgment for plaintiff as indicated.


text:
    FEES FOR COLLECTING SPECIAL ASSESSMENTS.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel J. A. Cline, Prosecuting Attorney, v. Robert C. Wright et al.
    Decided, 1912.

      Prosecutor May Not Maintain Action to Recover Moneys Not Belonging to County — Auditor’s Fees.

    1. A county prosecuting attorney has no authority under Section 2921, General Code, to bring an action to recover from a county auditor fees alleged to have been wrongfully retained by him from the collection of special assessments levied in municipalities, as such assessments are not funds belonging to the county.
    2. Under Section 1069, Revised Statutes, a county auditor was entitled to five-tenths of one mill on all moneys collected by the treasurer on special assessments, even though as a matter of convenience to the treasurer, such special assessments had been transferred to the grand duplicate instead of to a special duplicate.

      J. A. Cline, for plaintiff in error.

      Smith, Taft & Arter, contra.
    Winch, J.; Marvin, J., concurs.
    The prosecuting attorney of Cuyahoga county brought his action against Robert C. Wright, who was formerly auditor of Cuyahoga county, to recover certain excess fees which said auditor is alleged to have retained on the collection of special assessments levied by various municipalities situated in said county.
   A demurrer to the petition was interposed and sustained on two grounds; first, that the prosecuting attorney was not authorized by law to bring the action; and second, that the auditor was entitled by law to the fees retained by him.

We think both of these grounds well taken.

First. The authority of the prosecutor to bring such actions is limited by Section 2921, General Code, to cases where funds of the county or public moneys in the hands of the county treasurer or belonging to the county, have been misapplied or illegally drawn or withheld from the county treasury, and in such cases, the action must be for the use of the county.

Special assessments collected by the county auditor for municipal corporations are not "funds of the county,” nor are they "public moneys in the hands of the county treasurer” within the meaning of said section. They are "public moneys,” it is true, but belonging to the municipal corporations for which they are collected, and no action.can be brought for their recovery "for the use of the county,” for the county has no interest in them.

This w’as held to be the case with regard to moneys paid into the county treasury by virtue of proceedings for the location and construction of a county ditch, in the case of Loe v. State, ex rel Platt, Prosecuting Attorney, 82 O. S., 78, and in the case of State ex rel Gilmer, Prosecuting Attorney, v. Sager, nnreported, the Trumbull County Circuit Court, at its September term, 1911, held the same thing with regard to moneys paid into the county treasury by virtue of proceedings for the improvement of roads in special road districts.

Second. Under Section 1069, Revised Statutes of Ohio, in force when the fees here in question were retained, the auditor was allowed as compensation for his services, two-tenths of one mill on “all moneys collected by the county treasurer on the grand duplicate of the county,” and five-tenths of one mill on “all moneys collected on any special duplicate.”

The petition in this case shows that the auditor transferred the special assessments, certified to him by various municipalities, to the grand duplicate, and not to a special duplicate, and they were collected on the grand duplicate by the treasurer.

This was a mere method of bookkeeping and probably more convenient for the treasurer' than keeping a separate duplicate for the special assessments. These levies still remained “special assessments, ’’ however, were collected as such and it is clear that the law intended that the auditor, for his labor in transferring such assessments, which it appears he has done in this ease, should have compensation based upon a percentage of five-tenths of one mill on all special assessments collected.

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


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    INJUNCTION AGAINST COLLECTION OF A SEWER ASSESSMENT.
    Circuit Court of Cuyahoga County.
    George Munz et al v. George F. Myers, Treasurer, et al.
    Decided, November 18, 1912.

      Taxation — Special Assessments Must he Levied in Proportion to Benefits.

    Where in a sewer assessment district consisting wholely of farm lands, some of the lands arc very remote from the sewer, while others are in close proximity to it and would he enabled to use the sewer as an outlet 'by making a short extension, an assessment which levies the same, amount per acre upon the remote lands as upon those in close proximity to the sewer, is not levied in proportion to the benefits, and its collection will be enjoined.

      M. W. Beacom, for plaintiff in error.

      J. A. Cline, W. D. Meals and Green, Zmunt & Zmunt, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
    This is an action to enjoin the collection of special assessments levied upon the lands of plaintiffs in the village of Newburgh Heights ti pay for the building of a sewer in Cuyahoga street in said village, and an outlet thereto. It is contended that although the assessments were pretended to be levied according to benefits, they were not in fact so levied by the municipal authorities.
   The case was heard upon an agreed statement of facts from which it appears that Newburgh Heights covers a territory of about three square miles of irregular shape, but extending north and south perhaps twice as long as its width east and west. On the northern boundary of the village is a creek running into the Cuyahoga river. At about the middle of the northern boundary on this creek was established the outlet of this sewer, and it was built to the south from there some 855 feet, to the intersection of Washington boulevard and Cuyahoga street, and then the sewer proper was built southerly some 2,000 feet on Cuyahoga street to Harvard street, which runs east and west.

Cuyahoga street may be said to bisect the northern part of the village and is about three thousand feet long, ending at the tracks of the South Shore Railroad, which here runs in a generally east and west direction. The thickly populated part of the village lies north of these tracks; south of them are farm lands.

Washington boulevard, from the point where it intersects Cuyahoga street, curves to the southeast and then runs in a southerly direction parallel to Cuyahoga street, and about one thousand feet east of it, until it ends at Harvard street, from which point Independence road extends to the southerly boundary of the village, as a continuation of Washington boulevard.

All the proceedings for the building.of the sewer, issuing of bonds to pay for it, levying assessments and equalizing them, were regualar and the assessments levied should be paid, if the amount found to be due from the several property owners was rightly determined according to law.

No estoppel is pleaded or claimed to bar the action of plaintiffs, if they are right in their contention that the assessments were improperly distributed.

In distributing the cost of the improvement the assessing board and the equalizing board determined the area of the' territory to be assessed by its elevation with reference to the improvement in question, and limited it to those lands which could be drained into it either by direct connection or through the construction of intermediate sewers having their outlet in the improvement.

The area thus designated for assessment, was divided into three classes; the lands furnished drainage by direct connection with the improvement, those furnished drainage through intermediate sewers connecting with the improvement at some point along Cuyahoga street and those furnished drainage through intermediate sewers to be connected with the so-called outlet at some point north of Cuyahoga street.

No complaint is or can be made of this division of the benefited lands into classes. Plaintiff’s lands belong to the third class and the area thus thrown into the third class, its size, shape and character and the method of dividing the assessments among the owners of property of the third class must be further considered.

From the map in evidence it appears that the first class of property lies along Cuyahoga street; the second class is a compact territory nearly round in shape, lying on both sides of Cuyahoga street, which appears as the north and south diameter of the circle. The third class shows on the map as an irregular strip of land, lying on both sides of Washington boulevard and extending from north of Cuyahoga street to the south, passing the second class with a narrow width of 200 or 300 feet, and then broadening out to perhaps 1,500 feet in width, then contracting to a narrow width, and lying on both sides of Independence road. Evidently it was thought that another sewer would sometime be built through AVashington boulevard commencing north of Cuyahoga street, paralleling Cuyahoga street to Harvard street, and then running south along Independence road a distance of over 8,000 feet, and that the property in this territory, called the third class, would be benefited by a sewer so constructed and emptying into the so-called outlet at the north.

The most graphic way to describe this third class territory, without a map, is to call it a shoe string, with the northerly end tied to the improvement and the southerly end eight thousand feet away on the farms of plaintiffs.

Now the assessors state that they levied the assessments within this territory at the rate of $17 for each and every acre of it, the southernmost acre being assessed the same as the northernmost acre lying next to the improvement or outlet.

The council legislated on this subject and declared that all assessments should be according to benefits: the assessors reported the assessments at $17 per acre, and solemnly declared that they had levied the assessment according to benefits; the council adopted the assessor’s report and the report of the equalizing board, which was the same, and all declared that the assessment had been made according to benefits, but the agreed statement of facts contradicts all these statements and shows that the assessment was not made according to benefits, but by a rule of thumb which is nowhere authorized by the statutes of Ohio.

Manifestly an acre of land a mile and a half from a sewer is not benefited by it equally with an acre of land within one or two hundred feet of it. There is no present advantage from the construction of the sewer to the owner of the land at the south end of this narrow strip of territory, while there is to the owner at its north end. Nor will the owner at the south ever be benefited by the construction of this particular improvement, until a sewer is built a mile and a half along down Washington boulevard and Independence road, and then he will be assessed for the construction of that sewer.

That this territory in class three should be assessed some part' of the cost of the outlet may be conceded, but the owner of land in this territory on Washington boulevard near the outlet can connect with it at once, while the plaintiffs may not live long enough to get any benefit from it.

The geography of the third class territory contradicts the assertion that every acre in it is equally benefited by the improvement.

It appearing that the assessments levied upon plaintiffs’ lands were not made according to benefits, their collection is enjoined.


text:
    SIMULATED PAYMENT OF A STOCK SUBSCRIPTION.
    Circuit Court of Lorain County.
    C. E. Vandeusen, Trustee, v. E. M. Ransom.
    Decided, December 2, 1912.

      Corporations — Stockholder's Liability for Unpaid Subscriptions Not Defeated by Any Device Short of Payment.

    Capital stock or shares in a corporation, especially the' unpaid subscriptions to such stock, constitute a trust fund for the benefit of creditors, which can not be defeated by simulated payment of the stock subscription or by any device short of actual payment; hence, where a subscriber to stock in a corporation pays only 80 per cent, of its par value and a board of trade is credited with a commission of 20 per cent, for procuring the purchaser, which 20 per cent, is immediately assigned by the hoard of trade to the purchaser, according to a pre-existing agreement, such transaction is not a valid payment of the 20 per cent, as against creditors of the corporation or a trustee in bankruptcy.

      White, Johnson & Gannon, for plaintiff in error.

      G. A. Resek and L. B. Fauver, contra.
    Niman, J.; Marvin, J., concurs; Winch, J., dissents.
    The plaintiff in error is the trustee in bankruptcy of the National Steel Products Company, a corporation. He was plaintiff in the action below, the action there being brought to recover the balance claimed to be due on the defendant’s subscription to the capital stock of said the National Steel Products Company.
   The evidence establishes the fact that the defendant subscribed for fifty shares of the capital stock of the "National Steel Products Company and agreed to pay therefor the sum of $1.00 per share, which was the par value of the stock, but that in fact he actually paid only $80 per share. The difference between the par value and the price actually paid for the stock was sought to be recovered in the original action.

To defeat the plaintiff’s claim, the defendant relied upon an affirmative defense, stated in the second amended answer, in the following language:

‘ ‘ Further answering, and for a second defense to the petition of plaintiff, this defendant says that on or about the 17th day of September, 1909, said the National Steel Products Company attempted to increase its capital stock from $25,000 to $50,000 and at said time said company was insolvent and had no working-capital, and was unable by reason thereof to sell or place any of said additional capital stock; that the officers attempted to raise capital by obtaining subscriptions to its capital stock, but were unable to secure any subscribers; that at said time there was in existence in the city of Lorain an industrial organization known as ihe board of commerce, which board was composed of the leading business men, bankers and professional men of the city of Lorain; that said company, a£ a final resort in its efforts to obtain subscriptions, enlisted the services of the industrial committee of said board of commerce and entered into an agreement with said board of commerce whereby said board of commerce agreed to obtain subscriptions for said second issue of said stock, and said company agreed to pay said board of commerce for said services the sum of $20 per share for all subscriptions secured; that the said services of the said board of commerce were reasonably worth said sum of $20 per share.
“This defendant further says that he subscribed for fifty shares of the capital stock of said company under an agreement whereby this defendant was to pay for said stock the sum of $100 per share, of which $80 per share was to be paid in cash, and $20 per share in commissions earned by the board of commerce and assigned by said board of commerce to this defendant ; that this defendant paid the sum of $80 per share in cash, and the board of commerce assigned to this defendant said commissions of $20 per share, thereby relieving said company from the payment of said commissions to said board of commerce,. and credited this defendant with said commissions, and that this defendant is not indebted in any amount whatever to said company or to plaintiff herein, by reason of said stock subscription. ’ ’

This defense was controverted by the plaintiff; the defendant assumed the burden on the trial of the action, and at the conclusion of his evidence the court overruled a motion made by the plaintiff to direct a verdict, which motion was renewed at the close of all the evidence, with like ruling by the court. The verdict was for the defendant. To reverse the judgment entered thereon, the plaintiff in error prosecutes this action.

It is contended on behalf of the plaintiff in error that the proof of the alleged contract between the National Steel Products Company and the board, of commerce, and of the rendition of services by the board of commerce in selling the stock purchased by the defendant, is insufficient to support the contract; that the agreement relied upon by the defendant, even if made as claimed, is a mere device to enable the company to sell its stock at less than par, and made for the purpose of enabling the defendant and other purchasers of stock to avoid fcrther liability, and therefore void as against creditors who are represented here by the trustee in bankruptcy; that the board of commerce of the city of Lorain being a corporation not for profit, could not make a contract for commissions and agree to sell stock and receive profit therefrom, even though such commissions were assigned to purchasers of stock.

The board of commerce is a corporation not for profit, having for its object the advancement of the commercial and industrial welfare of the city of Lorain.

We are not prepared to hold, as a matter of law, that it would be beyond its powers to enter into a contract with a corporation for the purpose of assisting in the sale of the stock of the company, for the purpose of promoting the general industrial growth of the city and giving to purchasers of stock the commissions contracted for, providing it was reasonably fair and the contract entered into in good faith and not for the mere-purpose of enabling those who might subscribe for stock to purchase the same at less than par and avoid further liability thereon.

There was evidence in this case which required the submission of the issues to the jury, and the trial court did not err in overruling the motion of the plaintiff to direct a verdict. A consideration of all the evidence, however, convinces us that the verdict is not sustained by sufficient evidence.

The arrangement entered into between the board of commerce, or the industrial committee representing the board, and the National Steel Products Company, strongly suggests the inference that it was intended to provide thereby a device whereby stock of the company could be sold at $80 per share to all who might desire to purchase, regardless of the services rendered by the board of commerce in making sales, and to protect purchasers against further liability if they should ever be called upon to pay the remaining $20 per share.

It appears that the company, which was in the manufacturing business and located in the city of Lorain, being desirous of increasing its capital stock, sought the assistance of the board of commerce of said city in selling additional stock. The president of the board of commerce was first approached by officers of the company, who proposed to him that if he would use his influence in putting $20,000 of the company’s stock on the market, he should receive as compensation the sum of $2,000. This proposition was rejected by the president of the board of commerce but the matter was referred to the industrial committee of the board. As a result of the action of the industrial committee, the assistance of the board of commerce was secured in placing the company’s stock on the market, and an arrangement was made whereby a commission of 20% of the par value of the stock was to be, in form at least, paid to the board of commerce, but in fact this commission was never paid, but was credited on the subscriptions of those who took stock. The company issued a prospectus which, after setting forth various information concerning the company and. its affairs, contains this language:

“Stock is offered at a net price of $80 per share, this basis having been arrived at in conference between the management of the company and the industrial committee of the board of commerce, as a fair adjustment between the present and the prospective stockholders. An adjustment between the par value of $100 and the net price of $80 per share will be made by way of a commission, which will be refunded to the subscribers so that they will be relieved of any liability in the future for what would otherwise be an unpaid portion of the par value of the stock. ’ ’

If the transaction between the company and the board of commerce was designed merely to furnish a plan whereby those who subscribed for stock and obtained the same at less than par, might be relieved of further liability thereon, the law is such that such transaction can not be interposed as a defense to an action brought by the trustee in bankruptcy for the company. The law is well established that, although an issue of stock is for cash under an agreement that only part of the par value need be paid, yet corporate creditors or their representativés may compel the persons receiving the stock to pay the unpaid par value. As between the corporation and the stockholder, the agreement would be good, but where the rights of creditors of the corporation are involved, such agreement constitutes no defense in an action for the unpaid balance of the subscription.

Sawyer v. Hoag, Assignee, 84 U. S., 610, is typical of numerous decisions. It was there held:

“Capital stock or shares of a corporation, especially the unpaid subscriptions to such stock or shares, constitute a trust fund for the benefit of the creditors. This trust can not be defeated by a simulated payment of the stock subscription, nor by any device short of an actual payment in good faith. An arrangement by which the stock is nominally paid and the money immediately taken back as a loan to the stockholder, is a device to change the debt from a stock debt to a loan, and is not a valid payment as against creditors of the corporation, though it may be good as between the company and the stockholder.”

There is some evidence here that the board of commerce, or some of its members, had some influence in inducing the defendant to subscribe for his stock, but in view of what seems to us the manifest character of the arrangement, we think that this evidence and other evidence offered on the subject of the reasonable value of the services in obtaining subscriptions to stock of the corporation, are insufficient to sustain the verdict, and that the motion of the plaintiff for a new trial should have been granted on the ground that the verdict is not sustained by sufficient evidence, and for error in overruling said motion, the judgment is reversed and the cause remanded for further poeeedings according to law.

This opinion and the result herein indicated represent the views of a majority of the court.


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    DISREGARD OF STATUTORY REGULATIONS IN OPERATION OF AN AUTOMOBILE.
    Circuit Court of Cuyahoga County.
    John W. Taylor, Administrator of the Estate of Isabel Hampton Robb, Deceased, v. The Cleveland Railway Company and Paul T. Lawrence.
    Decided, December 2, 1912.

      Automobiles — Negligence—Operation of Motor Vehicle in Violation of Sections 12603-4, General Code — Negligence.
    The operation of a motor vehicle in violation of Sections 12603 and 12604, is prima facie evidence of negligence, where such operation of the motor vehicle caused a pedestrian, in order to avoid it, to step back in front of a moving street car which strikes and kills her.

      Ong, Thayer & Mansfield, for plaintiff in error.

      Squire, Sanders & Dempsey and Stearns, Chamberlain & Royon, contra.
    Marvin, J.; Winch, J., and Niman, J., concur.
    This was a suit for wrongful death of said decedent. On the 15th of April, 1910, the decedent was caught between two cars of the railway company at the corner of Euelid avenue and East 100th street, in the city of Cleveland, the one going east on the south track of said company, and the other west on the north track. Being so caught, she was crushed to death.
   These cars were on Euclid avenue, a main thoroughfare in said city, and at the point of this occurrence much used by vehicles of all kinds.

East 100th street does not cross Euclid avenue, but leads from said avenue to the south. This occurrence was in broad daylight, and resulted either wholly from the negligence of the decedent or from the combined negligence of the decedent and that of either one or both of the defendants, or wholly from the negligence of one or both of the defendants, or it was an accident for which no one was responsible because it did not result from the want of reasonable care on the part of anybody.

The plaintiff, as administrator of the decedent’s estate, brought suit charging that it resulted wholly from the combined negligence of the defendants. Each defendant answered-denying negligence on its part and charging negligence against the decedent. The ease went to trial, and the court directed a verdict in favor of the defendant Lawrence, and submitted the question of the liability of the railway company to the jury, which returned a verdict in favor of the railway company. By proper proceedings the case is here for review, it being urged that the verdict in favor of the railway company is against the weight of the evidence, and that there was error on the part of the court in directing a verdict in favor of Lawrence.

We are of opinion that the evidence does not show want of reasonable care on the part of the decedent. She and another woman were walking on the north sidewalk on Euclid avenue; when they reached a point opposite to the sidewalk on the east side of East 100th street, they turned to cross Euclid avenue. This necessitated the crossing of both tracks of the railway company, and of course the devil strip between the tracks. At this time the two cars, already mentioned, were coming in opposite directions, the one from the east, being at a considerable distance from the line on which the women were crossing— at a rate and far enough away so that they crossed the track in safety — the one coming from the west was nearer, but the witness Falls says it was going slowly, apparently making a stop. At any rate, this car was not approaching at such a rate of speed as to prevent these two women from passing in front of it with safety, for Miss Canfield, the woman who was with the decedent, did so cross. The witness Falls says, in describing the occurrence:

‘' They crossed the street between the curb and the street car track without any occurrence of moment, until they hesitated on the south track or rather the track of the east bound car, stepped back into or almost into the track of the west-bound car; the- one woman, rather both ladies, started again for the south side of Euclid avenue, one lady continued on to the south side of Euclid avenue very hurriedly; the other lady stepped back into the devil strip.”

This one who stepped back was plaintiff’s decedent.

The defendant Lawrence was driving an automobile to the east, and was so near to the place where Miss Canfield crossed, and where Mrs. Robb must have crossed, that- the mudguard of his machine grazed her clothing. Mrs. Robb then was in this situation immediately before she was caught. She was on the east-bound track, and but for the approach of the automobile she could have crossed in safety, but a dilemma presented itself. If she moved forward, she was in imminent danger from the automobile; if she stood still or stepped back,- she was in danger from the approaching cars. She had to determine on the instant, and she stepped back and so was caught.

Both on reason and authority it is clear that one so situated is not bound to exercise such judgment as is required where one has time to deliberate and choose. It does not appear from the evidence that Mrs. Robb did not exercise as much care as an ordinarily prudent person would exercise when confronted with a like combination of circumstances, and so neither the action of the court in directing a verdict for the defendant Lawrence, nor the finding of the jury, can be justified on the ground of negligence on the part of the decedent.

We reach the conclusion, too, that the verdict of the jury in favor of the railway company is not by any means clearly against the weight of the evidence, and this largely on the evidence of the witness Falls, a part of which has been hereinbefore quoted. The question then remains as to the direction of the court to return a verdict for the defendant Lawrence.

If there was any evidence tending to show that this defendant was negligent in any manner charged in the petition and that such negligence directly caused or contributed to the accident resulting in the death of Mrs. Robb, then this was erroneous.

At the time of this accident Lawrence was driving his automobile to the east' on the south side of Euclid avenue. The witness Falls says that the machine swerved into the track of the east bound car to avoid a wagon which was standing on the south side of Euclid avenue east of the cross walk of 100th street. Miss Canfield stepped in front of the automobile, or rather rushed, and her clothing was grazed by the right front mudguard of the automobile. This automobile pulled then into the track in front of the east bound car. Either the defendant saw or failed to see these women; if he saw them and the situation they were in, he knew that his approach with the car was threatening to them, and calculated to cause them to step back as they did. It is possible that he did not see them until he had swerved into the track, because of the east bound car being between him and them, as it is not improbable that they did not see him until he so swerved into the track, or if they did see him, it must have been when he was far enough back of the car as that he could, if driving carefully, have stopped or slowed down his machine. As already said, it is possible that he did not see them until he swerved into the track, but the evidence tends to show that he was violating two sections of the statutes of the state, viz., Sections 12603 and 12604, General Code.

The first of these makes it au offense to operate a motor vehicle on the public road or highway at a speed greater than is reasonable or proper, having regard for width, traffic, use, etc., of such road or highway, or so as to endanger the property, life or limb of any person.

The second makes it an offense to operate a motor vehicle at a speed greater than fifteen miles an hour within the limits of any municipality.

The testimony tended to show that Lawrence so operated his vehicle as to endanger the life and limbs of whoever should be crossing Euclid avenue at tbe point where these ladies undertook to cross; indeed, the danger to Miss Canfield who, by rushing across the street, avoided being hit by him, but who came so near to being hit that the mudguard grazed her clothing, tended to show that he was driving at a speed greater than fifteen miles an hour. True, the witness who says the speed was greater than fifteen miles an hour says he can not say how fast it was going, but that it was going at a speed higher than fifteen miles an hour. -It by no means follows that because one can not say how fast an object is going, he may not positively know that it is going faster than some given speed. One does not need to have witnessed many horse races to know that a horse which is actually going at the rate of 2:10 is going faster than a three-minute gait, though he may not know whether it is going at a 2:10, 2:12 or 2:20 gait. All of us have ridden on railroad trains when we knew they were going more than twenty-five miles an hour, without knowing whether they were going at forty or fifty miles an hour. But one may operate an automobile or a street car at a negligent rate of speed, without violating a statute or a municipal ordinance. Whoever supposes that if he violates no statute and no municipal ordinances by the speed at which he is operating any vehicle, he is necessarily not negligent in the matter of speed, is most greviously mistaken.

The evidence tending to show in this case that Lawrence was violating either or both of the sections of the statute makes a prima facie case of negligence against him, but it is said that the evidence does not tend to show that this negligence, if established, contributed directly to the injury and death of the decedent. We think otherwise. The stepping back of Mrs. Robb when she saw the automobile approaching at such speed was not unnatural; it was such as might reasonably have been expected, and such as might not have been expected if he had been operating his_ machine at such a rate as is prescribed by Section 12603, General Code, that is, at a speed that was reasonable or proper, having regard to the width, traffic and use of the street, and so as not to endanger the life or limb of any person.

It is further said that if the defendant was negligent in such wise as to have contributed to the injury of Mlrs. Robb, it was not the negligence charged in the petition against Lawrence. This contention is not sound. The language of the petition in that regard is that this motor vehicle, operated by Lawrence, “was being propelled by said defendant over the street crossing and intersection described in the petition; that said defendant was operating said automobile at a dangerous and negligent rate of speed, greater than was reasonable or proper, having regard for width, traffic and use and the general and usual rules of said highway, and so as to endanger the lives of pedestrians thereon, and especially said Isabel ITampton Robb; that said defendant was then operating said automobile on said street in said city at more than fifteen miles an hour. ’'

This charges the negligence which the evidence tends to establish, and which, as already pointed out, directly contributed to or caused the injury to Mrs. Robb.

We are not impressed with the soundnesss of the argument made on the hearing that the rate of speed of the machine had nothing to do with the accident; that it was the failure to stop or slow down, or the being at this particular point at this time, that caused Mrs. Robb to step back to the point where she was struck by the car. If this argument is sound, it could equally well be made against all statutes and all ordinances'against the speed of motor and all other vehicles. The object of all these regulations is to prevent the operation of these vehicles in such wise that they are likely to strike and injure persons or property, and it is a matter of common knowledge that the momentum acquired by rapid motion enhances the difficulty of stopping or slowing down.

We reach the conclusion, therefore, that the court erred in directing a verdict for the defendant Lawrence. We find no error in the charge as given in reference to the railway company, nor do we find any error in refusing to charge as requested by the plaintiff before argument. Without stopping to analyze these requests, we call attention to the fact that the request was general as to the entire series, but we also find that as to each, there was matter asked that would justify a refusal to give in the exact words of the charge. The result is that the judgment in favor of the railway company is affirmed, and the judgment in favor of Lawrence is reversed for error in directing the jury to bring in such verdict.

The case is remanded for further proceedings between the plaintiff and the defendant Lawrence.