text:
    BUILDINGS — CONTRACTS—PAYMENTS.
    [Cuyahoga (8th) Circuit Court,
    December 7, 1908.]
    Winch, Henry and Marvin, JJ.
    Anton Dreher v. L. W. McKenzie et al.
    1. Difference between Contract Balance Due and Damages for Failure to Complete Building Contract,
    Where plaintiff is entitled to recover upon a building contract, because he has substantially performed his contract, it is proper for the jury in its verdict to fix the amount remaining unpaid upon the contract price as the amount due the plaintiff, the amount due the defendant as damages because of failure to complete fully the contract according to specifications, and - make the recovery the difference between the two.
    2. Waiver of Building Contract Provisions as to Extras.
    If a building contract provides that no claim shall be made for alterations and additions unless they be made, upon the written order of the architect, this provision may be waived by the owner, but evidence of waiver must be clear and convincing and it is error to charge that recovery can be had for such extras merely upon proof that they were furnished, without proof of waiver of the conditions of the contract.
    3. Promissory Note Given as Estimate Due on Contract Treated as Payment.
    A promissory note, given for an estimate due on a contract on which suit is afterwards brought for the amount due on the contract, must be treated as payment on the contract indebtedness, unless the plaintiff offer to surrender it.
    Error.

      Marie,A. Copelamd, for plaintiff in error.

      J. Sharp Maxwell, T. H. Bushnell, Foster, Foster <£■ Howells, Howland é Nimam, Calhoun. & Guenther, Delos Coole, J. Freiherger and Thompson & Hine, for defendant in error.
   MARVIN, J.

The relation of the parties to each other here is the reverse of the relation in which they stood in the court of common pleas. The terms plaintiff and defendant, as used in this opinion, will refer to the parties as they stood in the original action.

The plaintiff brought suit against the defendant for a balance claimed to be due for work and materials furnished in the erection of a building at the northeast corner of Euclid avenue and 105th street, in the city of Cleveland.

The petition alleges that the parties entered into a written contract for a certain part of the construction of this building; that contract is in writing and is attached to and made a part of the petition. (Parenthetically it may be said here, that to make such a contract a part of the pleading is not good practice and is not contemplated by the code. However, it is a defect which can only be remedied by motion, and the pleading is therefore good, although the proper way would have been to follow Sec. 5086 R. S. (Sec. 11334 G-. C.) and attach it, without making it a part of the pleading.)

Subsequent to the making of the contract already named, another written contract was entered into, as to certain other work which the plaintiff was to do for the defendant.

The petition sets out further that certain work, other than that specified in either the original or subsequent written contract, was done, and that the plaintiff fully performed all the things by him to be done in both of said written contracts (specifying the items), and then follow these words: ■

“And plaintiff further says that between July 19, 1906, and December 21, 1906, the said plaintiff at the request of the defendant,. Anton Dreher, and his authorized agents, the Harvey Bros., and upon the order of said architects, furnished additional materials and performed the labor incident thereto not called for in this original contract and that the reasonable value thereof is $1,244.72, said additional work and material being as follows, to wit:” Then follows an itemized account of such additional work and materials.

The defendant answered admitting the making of the written contracts and denied that the plaintiff had fully- performed on his part, and then by way of cross-petition, set up claim for damages because of the failure on the part of the plaintiff to fully complete his contract. The result of the trial was a verdict and judgment for the plaintiff. The form of the verdict is that the jury found a certain amount due to the plaintiff on his petition and that there was due to the defendant a certain other amount, on his cross-petition, and then found as the amount to be recovered’ by the plaintiff, the difference between the amount found due to him on his petition and the amount due to the defendant on his cross-petition. The amount of the latter being less than the amount of the former.

One of the errors complained of is that this verdict is inconsistent and is not properly framed. This objection is not well taken. Where the plaintiff is entitled upon a building contract to recover because he has substantially performed his contract, it is proper to fix the amount remaining unpaid upon the contract price as an amount due to him and then fix the same amount due to the defendant, because of the failure to fully complete the contract according to all its sepcifications and make the recovery the difference between the two.

One of the provisions of the original contract reads as follows:

“Item 3. Should any alteration be required in the work shown or described by the drawings or specifications, a fair and reasonable valuation of the work added or omitted shall be made by the contractor, and the sum herein agreed to be paid for the work according to the original specification, shall be increased or diminished, as the case may be. In ease such valuation is not agreed to, the contractor shall proceed with the alterations, upon the written order of the architects, keeping exact account of the cost of labor and materials involved in the alterations, and if the same be less than that originaly shown and described, the net difference shall be deducted from the sum herein agreed to be paid,- but, if more, then the additional cost together with -per cent, of the same shall be added to this sum. ’ ’

Another clause of the contract reads:

“Item- 8. The contractor shall make no claim for additional work unless the same shall be done in pursuance of an order from the architects.”

It is contended on the part of the plaintiff in error that these two items shall be considered together. In this contention we think the plaintiff in error is right, and that the additional work spoken of in item 8, is one of the things contemplated by the word “alterations,” and the words “the work added or omitted” in item 3.

The account for additional materials and labor in the petition, for which the sum of $1,244.72 is made, is clearly for additional materials and labor upon the same building and in connection with the same work provided for in the written contracts, and this is shown too by the language of the petition, already quoted, and which is here re-copied as follows: “the said plaintiff, at the' request of the defendant, Anton Dreher, and his authorized agents, the Harvey Bros., and upon the order of said architects, furnished additional materials and performed the labor incident thereto not called for in the original contract,” and it follows that unless by reason of some other contract made between the parties, there was a waiver of the provisions of item 3, the plaintiff was not entitled to recover therefor, because there is not claim that there was any written order for this made by the architects, nor was there any valuation made before the work was done which was either agreed to or not agreed to. The contemplation of the parties clearly was, when the original contract was made that if additional material or labor was to be furnished, the contractor should make a valuation before furnishing the same, and if this valuation was agreed to, he should go on and furnish the labor and materials; if it was not agreed to, then upon a written order of the architects he should go on and furnish the labor and materials, keeping an exact account of the cost, and recover therefor.

Here, as already said, no valuation was made nor was there any written order. However, the fact that these parties had entered into a written contract providing that except by a written contract and order nothing further should be done by the plaintiff for which he should be paid, this did not prevent the parties from agreeing to a waiver of this stipulation, nor did it prevent the parties from entering into a new or additional contract in any way in which they might have made a contract, if this written contract had not been made.

To illustrate: There might have been a written agreement between these parties that the plaintiff should construct a building of a certain character and dimensions for a fixed and certain price, and that the plaintiff should construct no other building for the defendant, unless that should be upon a written contract, and yet the parties might waive that and enter into a verbal agreement that the plaintiff should construct another building in addition to the one first contracted for, but when such new contract is made containing a waiver of the previous written contract, it is not sufficient to establish it by a mere preponderance of the evidence, the evidence of such waiver must be clear and convincing.

In the case of Ashley v. Henahan, 56 Ohio St. 559, 560 [47 N. E. 573] the fifth paragraph of the syllabus reads as follows:

“Such stipulation being for the benefit of the employer, proof of a waiver must either be in writing, or by such clear and convincing evidence as to leave no reasonable doubt about it. ’ ’ See also O’Keefe v. St. Francis’ Church, 59 Conn. 551 [22 Atl. 325.]

The court charged in this ease in reference to this additiona] claim that:

“In regard to the claim for extras, you will look to the evidence and find what work and material the written contract entered into for the construction of the building required to be done. After you have ascertained that, then you will inquire whether or not the plaintiff did anything at the request of the defendants towards the construction and completion of the building other than that agreed to be done in the written contract. If you find that work was done other than that, or outside of that provided in the written contract, then you must ascertain from the evidence what it is reasonably worth. If you find from the preponderance of the evidence that the work and material were performed and furnished by the plaintiff as above indicated, that would constitute extras, and if the price had not been agreed to between the parties, the plaintiff would be entitled to recover the reasonable value of the extras. ’ ’

In view of what has already been said this was erroneous.

A question is raised -as to what effect the fact that the plaintiff held a note on which there was due the sum of $1,000 should have upon the verdict to be rendered here.

On the part of the plaintiff it was claimed that this note was given upon another indebtedness of the defendant to him. Of course if the jury found this to be true, the note would cut no figure, in this suit. But the defendant claimed that this note was given to apply in part payment of the indebtedness sued for ■in this action. If this claim be true, then though the nóte is not payment of the indebtedness sued for in this action unless it is agreed between the parties that it shall be so treated, yet while the plaintiff held on to the note, failed or refused to deliver it up or cancel it, it should have been treated as a payment. The plaintiff was not entitled to hold on to this note if it was given upon the indebtedness for the construction of the building under consideration, and still recover the same amount as he would be entitled to recover if he had never received the note, because he would then have, when he recovered, full paymnt upon his contract and still be the holder of this note.

The court in its charge to the jury, said:

“If you find that a note was given by the defendant to the plaintiff, or renewal notes were given for an estimate, such note or renewal notes do not create a new debt or operate as a discharge or satisfaction of the debt evidenced by the estimate of the architects, unless it is agreed upon between the plaintiff and defendant. And the burden of proof is upon the defendant to show that the estimate of the architects has been discharged or satisfied by said note or renewal notes. ’ ’

This statement not qualified by the further proposition that if the plaintiff was not to be charged with the amount due upon this note as a payment he must surrender the note, was erroneous.

Complaint is made that the court erred in refusing to give certain propositions in his charge to the jury, which were requested by the defendant before argument. Without stopping to consider each one of these propositions requested, it is sufficient to consider that it does not appear by the bill of exceptions that the court was requested in writing to give these propositions, nor does it appear that the court was requested to give the propositions in writing.

Paragraph 7, of Sec. 5190 R. S. (Sec. 11447 G. C.), relating especially to charges and instructions of the court to the jury, reads as follows:

“The court, after the argument is concluded shall before proceeding with other business, charge the jury; any charge shall be reduced to writing by the court if either party, before the argument to the jury is commenced, request it; a charge or instruction, when so written and given, shall not be orally qualified, modified, or in any manner explained to the jury by the court; and all written charges and instructions shall by the jurors be taken in their retirement, and returned with their verdict in court, and shall remain on file with the papers of the case.” See Toledo, F. & N. Ry. v. Gilbert, 24 O. C. C. 181 (2 N. S. 432) and Clark v. Boltz, 29 O. C. C. 665 (10 N. S. 1).

And it has been held by this court and by the circuit court of the seventh circuit of Ohio, that where the requests were made for the purpose of invoking the statute referred to, it must affirmatively appear by the bill that the court was requested to give the propositions in charge in writing.

It follows that the plaintiff was not entitled to have .these propositions given in the words requested, even though they embodied correct propositions of law applicable to the ease. There was no error in the refusal of the court to charge these propositions before argument, and we find no error in the record justifying a reversal, except the errors in the charge already pointed out, and for these errors the judgment is reversed and the cause remanded.

Winch and Henry, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    NEGLIGENCE — VERDICTS.
    [Cuyahoga (8th) Circuit Court,
    March 14, 1911.]
    Winch, Marvin and Henry, XT.

      Lake Shore Electric Ry. v. George M. Mills.
    1. College Student Preparing to Become Mining Engineer Injured to Prevent His Following Such Profession.
    A young man studying at college to become a mining engineer was seriously injured in a trolley accident by the negligence of the company. He was permitted to show that his injury would prevent his following his chosen profession. Held: No error, even though his petition did not allege this special damage.
    2. Evidence of other Injuries than Alleged not Prejudicial if Jury Held to Injuries Alleged.
    Though the petition does not claim damages for an arm,, it is not error to permit a witness to testify that he found an injury to plaintiff’s arm, if the jury is cautioned that there can be recovery only for the injuries specified in the petition.
    3. Verdict of $9,000 for Back Curvature, Leg Fractures and Nervous Effects not Excessive.
    A verdict for $9,000 is not excessive for a young college man twenty-two years old, whose injuries consisted of permanent injuries to his back, fractures of his leg and his nervous system badly shattered.
    Error.

      M. B. & H. H. Johnson and G. M. Dahl, for plaintiff in error.

      Sidles, Green & Sidles and B. B. & A. G. Newcomb, for defendant in error.

       Affirmed, no op., Lake Shore Elec. Ry. v. Mills, 84 Ohio St. 443.

   MARVIN, J.

The relation of the parties here is the reverse of the relation in which they stood in the court of common pleas. The terms plaintiff and defendant, as used in this opinion, refer to the parties as they stood in the original action.

The plaintiff was a passenger in a car being operated by the defendant upon its road and was injured by the negligence of the defendant. This is conceded by the defendant. Suit was brought to recover damages for such injury, and the result was the plaintiff recovered a judgment of $9,000. It is claimed that these damages are excessive, and that the court erred in the admission of evidence on the question of- such damages. The plaintiff, was, at the time of the injury, about 22 years-of age and was a student at the Case School of Applied Science in- the city of Cleveland. He was studying with a view to becoming a mining engineer. His father is an engineer and during school vacations he had worked some with his father in surveying, but he had not graduated in the profession, though he was within less than one year of graduation at the time he was injured. The injury resulted, as claimed by the plaintiff, in a curvature of the spine, and as is further claimed is such an injury to the back as would altogether prevent, or in any event greatly interfere with the prosecution by the plaintiff of the profession, of a mining engineer. It is claimed that this evidence was all incompetent because the plaintiff was not a mining engineer. It is not like the ease of one engaged in, an employment where he hopes for promotion, but it is a ease where the recovery sought was for damages which naturally would flow to one preparing for a particular occupation. The rights of the plaintiff would be governed by the same rule that would govern if he were an apprentice to a mechanical trade, so preparing himself to earn money in the prosecution of that trade.

If this plaintiff had been a mining engineer at the time of the injury there is no doubt that he might show that fact and how he would be affected in the prosecution of that profession.. Suppose instead of being an undergraduate in the college the plaintiff had just received his diploma, but had never entered upon the practice of his profession, and had never earned any money as an engineer, it would seem difficult to give any good reason why the effect of the Jury upon his prosecuting the profession would not be competent.

If instead of having received the injuiy immediately after he had received his diploma he had received it a week before he would have graduated, or, as in the case, about a year before he would have graduated, the reason for admitting evidence as to the effect of such injury upon the prosecution of the profession would seem to apply as well in the one case as in the other. This. young man, presumably at a considerable expense, was preparing for a profession in which he might expect to earn money, is so injured by the defendant that he is not likely to be able to prosecute that profession with such success as he otherwise would probably have been able to prosecute it, and we see no reason why, in estimating the damages, the effect upon his ability to .do that which he was preparing himself to do, was not proper subject of inquiry. If instead of the profession which he had selected he had been studying for a long time for the profession of the ministry or of an actor upon the stage and the injury had resulted in total loss of his voice, we think the case would have been parallel to the present, and that such loss of his voice and its effect upon, the proposed occupation of the party injured Avould be a proper subject of inquiry in estimating the damages to which he would be entitled.

It is urged; however, that the petition in this ease making no mention of the fact that the plaintiff was preparing for a particular profession or occupation, no recovery -can be had because the injury tending to prevent his following such occupation, is not specially pleaded. In this we think the plaintiff in error is wrong. The plaintiff was not claiming special damages because he had been interfered with in doing a particular thing, but he claimed damages because of an injury which he received and which injury must necessarily result in affecting his'ability to do work which he otherwise might have done. Under the allegations of this petition it was competent for the plaintiff to .show what work he was doing and what work he would be able to do, or probably be able to do but for this injury, and how the injury would affect his ability to do that kind of work.

Complaint is further made that the court permitted to stand an answer made by a witness that an examination of the plaintiff showed an injury to his arm, when there was no allegation in the petition that he received an, injury to his arm, or that he claimed anything on account of such injury. The answer came to a question as to the condition in which the plaintiff was and the witness, in giving the answer, spoke of this injury to the arm, and this he ne'eessarily spoke of if he gave a complete answer to the question, and it is of course true that the plaintiff was not entitled to recover by reason of the injury to the arm, not having pleaded it, nor was any recovery allowed therefor.

The court in its charge read to the jury, the charges of negligence in the petition and the averments therein as to the injuries sustained and then said: “You will be confined in your consideration as to his loss to the personal injuries which he received and the other damages as recited and alleged in this petition. ’ ’

From this it seems clear that the jury were not permitted to consider any injuries other than such as are alleged in the petition, nor can anyone suppose from reading this record that what was said about the arm affected the verdict one iota. But, it is said, the' amount allowed, $9,000, is excessive.

"We are not prepared to assent to this proposition. It was conceded at the trial that the plaintiff was in the best of health before the injury and that he was injured by the negligence of the defendant, and the testimony clearly shows that he received such an injury as must have caused him very great pain; that he has suffered greatly from it ever since; that his back is probably permanently injured; that his leg and ankle were crushed; that the bones in his leg and ankle were fractured; that'there was great injury to his nose and that his nervous system was shattered to a great degree. Of course the measure of damages in such a case is not what one would expect in money to have such an injury inflicted upon him, but it must be compensation, so far as money can reasonably compensate for the real injury received, including the physical and mental pain as well as the direct loss in earning capacity.

An examination of this record fails to show any error which would justify a reversal- of the judgment of the court below and the same is affirmed.

Winch and Henry, JJ., concur.


text:
    DAMAGES.
    [Cuyahoga (8th) Circuit Court,
    December 14, 1908.]
    Winch, Henry and Marvin, JJ.
    William R. Benson v. Van Dorn Iron Works Co.
    Measure of Damages for Breach of Contract to Furnish Building Materials.
    The measure of damages for breach of a contract to furnish materials to a sub-contractor on a building job is not the profit that might have been made if the materials had been furnished, but the difference between the agreed price of the materials and what they would have.cost in the market.

      Carr, Stearns &' Chamberlain, for plaintiff in error.

      Blandin, Rice & Ginn, for defendant in error.
   MARVIN, J.

The parties here stand in the same relation to each other as they stood in the court below. The plaintiff is the duly elected and qualified trustee in bankruptcy of the estate of the copartnership of Welsh & Soest. The-defendant is a corporation organized under the laws of Ohio. The plaintiff’s petition sets out two claims, on which he says he is entitled to recover against the defendant. The first is based upon this state of facts, as set out in the petition: that one Charles Gilpin, had a contract for the erection of a building in the city of Baltimore, Maryland; that in the construction of said building certain ornamental and light ironwork was required; that Welsh & Soest entered into a contract with Gilpin to furnish said ironwork; that such contract between Gilpin and Welsh & Soest was made on October 31, 1905; that on January 23, 1906, Welsh & Soest entered into a contract with the defendant by which the defendant undertook and agreed to furnish said ironwork for said building for $20,000 less $450 which it was agreed might be, and finally agreed should be omitted or deducted, because of a change made in the material to be furnished, making the amount which Welsh & Soest were to pay to the defendant $19,550. A part of the contract between Welsh & Soest and the defendant was that Gilpin should become surety for Welsh & Soest to the defendant for the payment of the amount which was to go to it. Gilpin did in, writing guarantee this contract to the. defendant. The contract between Welsh & Soest and the defendant provided that the defendant should perform the work to the acceptance of the architect and should complete it in the shortest possible time consistent with good workmanship and material. On or about February 26, 1906, said Gilpin became financially embarrassed and was afterwards adjudged bankrupt, and on the date last named Welsh & Soest notified the defendant of the financial embarrassment of Gilpin and requested the defendant to stop work on the contract until further instructions, and on February 28, 1906, the defendant did stop, in accordance with said request, and agreed to suspend operations in the performance of said contract until further instructions were received, as requested by said Welsh & Soest. Thereafter, Gilpin being entirely unable to proceed with his contract for the construction of said building, such construction was awarded by the owners of same to the Charles MeCaul Company, of Philadelphia, and on March 28, 1906, Welsh & Soest entered into a contract with the said MeCaul Company to furnish the ornamental and light ironwork of said building for the sum of $23,000, this being the same work and material which was the subject of the contract of January 23, 1906, between the defendant and Welsh & Soest.

On March 28, 1906, the said Welsh & Soest notified the defendants to proceed at once with the performance of the said contract of January 23, 1906, but the defendant refused to proceed at once with the performance of the said contract of January 23, 1906, but the defendant refused to proceed and shortly thereafter notified Welsh & Soest that they would not furnish the said ironwork.

By reason of this failure and refusal by the defendant to furnish the iron work specified Welsh & Soest were unable to fulfill their contract with the MeCaul Company and they were notified by the MeCaul Company that unless they proceeded with their contract, a contract for such iron, work would be let to other parties and it would hold Welsh & Soest responsible for any necessary excess in cost above the contract- price with them; and thereafter, the McCaul Company did let the contract for this iron work to the Heela Iron Works, of Brooklyn, New York, for the sum of $28,500. The McCaul Company made its claim against the estate of Welsh & Soest in bankruptcy for the sum of $5,500, being the difference between the price which the McCaul Company was to have paid Welsh & Soest and the price which they paid the Heela Iron Works for the same work and material. This claim was duly allowed against the estate of Welsh & Soest, and because of the facts hereinbefore briefly set forth, the plaintiff says he is entitled to recover, first, $3,450, being the difference between the contract price with the defendant and their contract price with the said McCaul Company, and also the sum of $5,500, being the amount which the- McCaul Company was entitled to and had allowed out of the estate of Welsh & Soest, as the difference between the $23,000 which the McCaul Company was to pay to Welsh & Soest and the $28,500 which the-McCaul Company had to pay to the Heela Iron Works.

Tlie defendant in its original answer admitted the making of the contract between it and Welsh & Soest, and the making of the contract between Welsh & Soest and Gilpin; it admits that Gilpin "was obliged to give up the contract, which had to be done on account of his insolvency; it admits that the contract which had originally, been given to Gilpin was afterwards given to the McCaul Company and that Welsh & Soest on March 28, 190G, made the contract with the McCaul Company as alleged in the petition. For want of knowledge, it denies that the MeCanl Company notified Welsh & Soest that because of their failure to-proceed with the furnishing of the ironwork it would let same to either parties, and for the same reason it denies that the McCaul Company did let the work to the Heela Iron Works Company and also for the same reason denies that the McCaul Co hip any did let the work to the Heela Iron Works Company, and also for the same reason denies the presentation of the allowance of the claim of $5,500 of the McCaul Company against the estate of Welsh & Soest, and then denies generally any liability on its part to the plaintiff..

The defendant filed later an amendment to this answer in which it sets tip another defense, which, so far as is deemed necessary, will be considered later on in this opinion.

Upon, the trial, at the close of the evidence offered on the part of the plaintiff the court, on motion of the defendant, directed the jury to return a verdict in its favor, which was accordingly done, and judgment entered on said verdict. What is here sought is a reversal of that judgment.

It will be noticed that there is no allegation in the petition, as to the amount which was to be paid by Gilpin to Welsh & Soest, nor is there any allegation that the defendant had any information as to the amount to be paid to Welsh & Soest by the McCaul Company, nor are there allegations that the material and labor to be furnished by Welsh & Soest, or obtained by them from other parties at a price not higher than that which was to be paid to the defendant, nor is there any allegation that the defendant agreed to furnish this ironwork after Welsh & Soest made their contract with the McCaul Company.

When the defendant made its contract with Welsh & Soest it, of course, was bound to have in, mind that if it defaulted in its contract,-Welsh & Soest would be damaged to the'amount that would be required to expend in furnishing this ironwork either by letting the contract to another party or doing the work themselves, but it could not have had in contemplation any profits which Welsh & Soest would make by thereafter making a contract with the McCaul Company, or anybody else to furnish this ironwork at a particular price; nor could it have had in contemplation what such other party would be obliged to pay somebody else to complete the work. The. measure of damages, therefore, claimed by the plaintiff in each instance, that is, for the profit of $3,550 which it would have made had the defendant furnished the ironwork and McCaul would have paid them for, and the other'item of $5,500 which the McCaul Company paid to the Hecla Iron Works Company, and a claim for which it liad allowed against the estate of the bankrupts, would not be the true measure of damages in any event.'

And again, so far as appears from the petition, the defendant made no agreement with Welsh & Soest to furnish anything to them after it received notice from them that by reason of the financial condition of Gilpin work must be suspended upon the contract. Letters were introduced in evidence, one from Welsh & Soest to the defendant, to the effect that work must be suspended upon the contract. To this an answer was made by. letter from the defendant to Welsh & Soest, that letter being in evidence, in which the defendant notified them that it would be a loss to them to have the work suspended.

. Without considering in detail the various errors complained of in this proceeding, we are of the opinion that with the most liberal construction that can be given to the petition, no special damages such as are prayed for could have been awarded and that since no other damages were claimed, the most that could have been recovered would have been nominal damages. We are further of the opinion that from the evidence of the two letters inferred to and from the allegations of the petition, it is not made to appear that the defendant was bound to furnish the ironwork after it received the notice to discontinue the work until further orders.

We reach the conclusion, therefore, that the action of the court of common pleas was right, and the judgment is affirmed.

Winch and Henry, JJ., concur.


author: NIMAN, J.

text:
    ACTIONS — STATE.
    [Cuyahoga (8th) Circuit Court,
    May 22, 1912.]
    Niman, Winch and Marvin, JJ.

      Ellen Hunt v. State of Ohio.

      1. State not Answerable for Injuries Sustained at the Hands of Its Officers.
    The state is not answerable in damages to an individual for an injury resulting from misconduct or unauthorized exercise of power by its officers and agents in governmental matters.
    2. Enabling Act Does not Authorize Action Against State for Incarceration in Insane Hospital.
    Notwithstanding an enabling act authorizing the suit to be brought, a petition asking damages for the alleged wrongful act of a probate judge in adjudging tlie plaintiff insane and for acts of violence and other forms of mistreatment claimed to have been inflicted upon her by the officers and employees of a state hospital where she was committed, does not state a cause of action.

       Affirmed, no op., Hunt v. State, 88 Ohio St. 599.

   NIMAN, J.

On May 17, 1911, the legislature passed an act, entitled, “An act for leave to sue the state of Ohio, to adjudicate a claim of Miss Ellen Hunt,” and which was in the following language:

“Whereas, one Ellen Hunt, of Cleveland, Ohio, was herein-before, to-wit, on the 2d day of September, 1897, adjudged insane and committed to the Cleveland State Hospital for the insane; and
“Whereas, said Ellen Hunt claims said adjudication and said commitment were illegal; and
“Whereas, said Ellen Hunt claims to have suffered great damage, thereby; now therefore,
“Be it Enacted by the General Assembly of the State of Ohio:
“Section 1. That the said Ellen Hunt be and she is hereby permitted and empowered to commence an action in the court of common pleas of Cuyahoga county against the state of Ohio, that the said claim as hereinbefore set forth may be properly determined; service of process shall be made upon the attorney-general who shall represent the state in this action. Should the said Ellen Hunt recover judgment in said action, then in that event the auditor of state is authorized and directed to issue a warrant for the amount of such recovery and costs in favor of said Ellen Hunt.”

After this act was passed, Ellen Hunt brought suit in the court of common pleas against the state of Ohio, and in her amended petition sought to recover damages for the alleged wrongful act of the probate judge of Cuyahoga comity in adjudging her insane, and for acts of violence and other forms of mistreatment claimed to have been inflicted upon her by the officers and employes of the Cleveland State Hospital where she was committed.

A demurrer to the amended petition was filed by the state on the ground that it did not state facts sufficient to constitute a cause of action against the defendant in favor of the plaintiff.

The demurrer was sustained, and the plaintiff not desiring to amend or further plead, judgment was entered thereon against her; This proceeding in error is prosecuted to reverse the said judgment.

The act in question attempted to create no cause of action. Reference to the preamble shows that the legislature merely recognized that the plaintiff in error claimed to have been illegally adjudged insane and committed to the state hospital for the insane, and to have suffered great damage thereby. The bar that stood in the way of her suing the state was removed, in order .that her claim might be determined. The validity of her claim was in no way recognized or approved. This was left to be dealt with by the courts, and determined by reference to established legal principles.

The principle of law that the state is. not answerable in damages to an individual for an injury resulting from misconduct or unauthorized exercise of power by its officers and agents in governmental matters, is universally established. The rule and the reason therefor are stated by Story, Agency (9th ed.), See. 319, in this language:

“It is plain that the government itself is not responsible for the misfeasance, or wrongs, or negligences, or ommissions of duty of the subordinate officers or agents employed in the public servr ice, for it does not undertake to guarantee to any persons the fidelity of any of the officers or agents whom it employs; since that would involve it in all its operations, in endless embarrassments and difficulties, and losses, which would be subversive of the public interests. ’ ’

See also, Lewis v. State, 96 N. Y. 71 [48 Am. Rep. 607] ; Bain v. State, 86 N. C. 49; Western College v. Cleveland, 12 Ohio St. 375; Cincinnati v. Cameron, 33 Ohio St. 336; Robinson v. Greenville, 42 Ohio St. 625 [51 Am. Rep. 857].

Under this principle of law, the amended petition of the plaintiff in the court below stated no cause of action against the defendant, the state of Ohio, and the demurrer was pi'operly sustained.

Winch and Marvin, JJ., concur.


author: KINKADE, J.

text:
    BILLS AND NOTES — JUDGMENTS.
    [Wood (6th) Circuit Court,
    May 3, 1912.]
    Wildman, Richards and Kinkade, J.T.
    Hubbard S. Woodbury v. Fred J. Bollmeyer & Co. et al.
    1. Competency of Testimony of Widow of One of Makers of Promissory Note.
    In an action on a promissory note, where one of the makers is denying that he executed the note or that there was consideration therefor, it is not error to permit the widow of the other maker to testify as to certain matters which arose between herself and her husband when no other person competent to be a witness was present.
    2. Judgment on Cognovit Note Vacated and Burden of Proof.
    Where judgment taken on a cognovit note is vacated and a new trial awarded with the assent of counsel, and one of the defendants is denying consideration, the case stands as though no judgment had ever been entered, and the burden of proof follows the rule laid down in Ginn v. Dolan, 81 Ohio St. 121.
    Error.

      L. H. Morgan, and Ladd & James, for plaintiff in error:

      F. II. Wolf and N. B. Harrington, for defendant in error.
   KINKADE, J.

This is a proceeding in error to reverse a judgment of the court of common pleas entered in favor of the defendant in error, J. H. Sherwood, in an action based upon a promissory note. ■ At the May term, 1908, of the court of common pleas of Wood county, Ohio, plaintiff in error, Hubbard S. Woodbury, took judgment upon a cognovit, note against all of the defendants in this action. At the same term, in July, 1908, J. H. Sherwood sought to have this judgment vacated as against him, setting. up that he had a valid defense thereto, to-wit: that he had never executed the note, and that the same was without consideration. A hearing was had at that term and a finding made in favor of Sherwood upon that application. The journal entry covering the action of the court at that time appears to have been prepared by Handy & Wolf, counsel for Sherwood, and to have been approved by Lewis W. Morgan, attorney for Hubbard S. Woodbury.

Instead of following the usual practice of suspending the judgment pending hearing of the question as to the validity of the defense presented by Sherwood, the journal entry approved by counsel for both sides as stated, goes much further than is usual and vacates the judgment and grants Sherwood a new .trial. After reciting that the court has had presented evidence tending to show that a defense existed in behalf of Sherwood, to-wit, that he never executed the note, that his signature thereto was a forgery, and that he should be given an opportunity to defend, the entry says:

“It is therefore adjudged that said judgment be and the same is hereby opened up and vacated and a new trial is granted to the said J. H. Sherwood.”

Then follows a statement preserving liens, etc., pending the trial, usually found in entries of this character. No exception was taken to this action of the court. Following the vacating of the judgment, the case was continued for nine terms.

The amended answer of Sherwood was filed in February, 1911, setting up the fact that he had never executed the note, that his signature thereto was a forgery and that the note was without consideration. The case coming for trial at the May-term, 1911, was submitted to a jury on June 8, and a verdict was rendered in favor of the defendant Sherwood. A motion for a new trial was overruled and judgment entered on the verdict.

Two grounds are assigned here why this judgment should be reversed. First, it is said that the court admitted incompetent evidence in this: that it permitted the wife of Bollmeyer, who was the daughter of one of the makers of the note, to testify in the case, and also permitted Sherwood to testify, and it is said in view of the fact- that Fred J. Bollmeyer was at the time of the- trial dead, and in view of the further fact that Mrs. Bollmeyer was testifying to certain matters which arose between' herself and her husband when no other person competent to be a witness was present, that the evidence of both of these witnesses was incompetent. It is not contended that Woodbury is the assignee of the deceased maker, Bollmeyer, but it is said that the relation of the parties is such that he falls within the spirit of the law prohibiting parties thus related from testifying. We are unable to sustain the contention of counsel for plaintiff in error as to either point. We think the testimony of both witnesses was competent.

The other ground upon which it is sought to have the judgment reversed is that the court committed an error in saying .to the jury in the charge, that the burden was upon the plaintiff to maintain his cause of action against Sherwood by a preponderance of the evidence. Counsel for plaintiff in error contends that a different rule applies in a ease of this kind where a judgment is opened up and a defense thereto let in, than would apply if it were an action upon the note by Woodbury against Sherwood, and insists that in this action the burden is upon Sherwood to maintain by a preponderance of evidence the defense to the judgment which he claims, and counsel intimate in argument that perhaps the defendant should be required to establish a defense other than a mere denial of the plaintiff’s claim.

We are unable to agree with this position. It is our opinion that when the judgment is suspended and particularly in this ease where, with the assent of counsel, the judgment is vacated in the journal entry and a new trial granted, that the case stands between the plaintiff and Sherwood precisely as though no judgment had ever been entered and that the plaintiff has the burden of proof to sustain his cause of action by a preponderance under the rule stated in Ginn v. Dolan, 81 Ohio St. 121 [90 N. E. 141; 135 Am. St. 761; 18 Ann. Cas. 204],

We think the court of common pleas stated the rule correctly as to the burden of proof in the charge to the jury, and finding no error in the case prejudicial to the plaintiff in error, the judgment of the court of common pleas will be affirmed.

Wildman and Richards, JJ., concur.


author: WINCH, J.

text:
    BUILDINGS — ESTOPPEL.
    [Cuyahoga (8th) Circuit Court,
    May 22, 1912.]
    Winch, Marvin. and Niman. JJ.
    Joseph Gross v. Isador Whitelaw.
    1. Garage in Building Restrictions.
    A garage may not be built upo* a lot restricted against the building of sheds and barns.

      2: Failure by Lot Owner to Object to Violation of Building Restrictions by Some not Estoppel as to Others.
    Failure by one lot owner to object to the building by others of garages upon 14 out of 800 lots in an allotment as to which a uniform plan of improvements and restrictions has been adopted for the benefit of all the lots, will not estop said lot owner from enforcing the restriction with respect to another lot in his neighborhood.
    'Appeal.

      Sidy, Klein & Karris and K. Ewing, for plaintiff.

      Fred Desberg, for defendant.
   WINCH, J.

This action was brought to prevent the defendant from building an automobile garage for his own private use upon his premises which are situated on South Boulevard in the city of Cleveland.

Defendant’s lot is one of some eight hundred lots, all of which are subject to the same restrictions, imposed by the original proprietor, who laid out the entire property for select residence purposes.

To accomplish this it was provided by deeds to purchasers in this allotment that the several lots should each and all be used for residence purposes only, that no intoxicating liquor should ever be sold upon them, that no building should be erected costing less than $3,000 nor nearer the street line than thirty feet, and that no shed, bam or shop should be erected or placed on any of said lots. By the deeds only hedges or iron fences are permitted, none to be nearer the street than forty feet.

The garage proposed to be built by defendant will cost $1,000 or $1,200.

This structure can not be built because of two prohibitions contained in the restrictions: it is a building which will cost less than $3,000 and it comes within the meaning of the general words “shed and barn.”

The derivation of the word “shed” indicates that it is a place erected for shelter and the word is frequently compounded with other words indicating things usually sheltered in it, as “w'ood shed, carriage shed, cow shed,” etc. If automobiles are sheltered in a building designed to shelter them, such building may properly be called an automobile shed, and in common speech one frequently hears this expression, though owners of automobiles and such sheds have imported the French word “garage,” which they use more commonly these days in speaking of the building in which they keep their automobiles, which latter they commonly call motors. It is a matter of taste or style.

The word “barn” originally meant a place where farm produce is stored, but many people in the city call the building in which they keep their horses and carriages a bam, while more properly it should be called a stable, though some have both stables and carriage sheds or carriage houses, as they prefer to call them.

The evident intention of the general restriction imposed on all the lots in this neighborhood is to keep the back yards free from such buildings as are commonly erected in back yards. The restriction was drafted before automobiles had come into common use, but can it be said that defendant may build a structure which he calls a garage as long as he keeps an automobile, and a shed or barn after he disposes of his automobile ,and stores something else in it ?

The particular use to which he proposes to put this building does not change its character completely; it is still a shed.

In evidence it was shown on the trial that there are fourteen lots among the eight hundred in this allotment on which garages have been built without objection being made by plaintiff. One is across the street from plaintiff’s premises and another in the same block. Defendant’s lot is immediately in the rear of plaintiff’s lot.

It is claimed by defendant that because plaintiff never attempted to enjoin the erection of said fourteen garages, he is estopped from asking the enforcement of the restriction, to the defendant’s deed.

The doctrine of estoppel is not to be applied here. Had the plaintiff erected any of these fourteen garages, or built one on his own premises, he would not come into court with clean hands and should have no relief; or, if garages had been built on so many lots that it appeáred that the prohibition had been waived by mutual consent, and that the character of the neighborhood had changed, a court of equity would be slow in enforcing the restriction as to one particular lot; but we see no reason why plaintiff in this case is not entitled to the relief he prays for, and judgment is rendered for him.

Marvin and Niman, JJ., concur.


text:
    STREET RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    May 22, 1912.]
    Winch, Marvin and Niman, JJ.
    A. G. Stafford, Tax-payer v. Cleveland Ry.
    1. Street Railway Franchise to Operate Express Passenger Service and Regulating Fares and Stops.
    Under a renewal grant of a street railway franchise a municipal corporation has the right to provide that the street railway company may operate “express passenger service and other special cars” and in the regulation thereof the municipality may authorize a special rate of fare upon such cars and that they stop at certain designated places only for the purpose of taking on and letting off passengers.
    2. Interurban Cars Operated on City Line Governed by Street Railway Franchise.
    When the cars of an interurban electric railroad company at the terminus of a street railroad company operating under a municipal franchise are turned over to the latter company and are operated by it on its own tracks, the interurban company retaining no control over said cars when so operated by the other company and having no contract with it as provided in Secs. 9130 to 9133, G .C., the cars become the cars of the city company, and, as such, subject to regulation by the city council, under the terms of the franchise of the city company.

      E. K. Wilcox and Geo. D. Hile, for plaintiff.

      Squire, Samders & Dempsey, M. B. <& H. H. Johnson, Blondín, Hogsett & Gmn and Kline, Tolies & Morley, for defendant.
   WINCH, J.

The purpose of this action is to require suburban cars to be operated within, the city limits in all respects as city cars are operated, and at the same rate of fare.

Under the ‘ Taylor ’ ’ grant or ordinance, so-called, city cars' are required to stop to take on and let off passengers at all street intersections and other regular stopping places, and the fare is three cents with transfer for one cent, which is rebated, if the transfer is used.

Suburban, ears, after they enter the city, do not stop to take on city passengers, nor will they stop within the city to let them off, as they are returning to the city limits. A city fare of five cents, without, transfer privileges, is also charged upon suburban cars.

The defendants to this action are the Cleveland Ry., operating under said Taylor grant from the city, and all the suburban. or interurban electric railroad companies whose lines reach the city.

On the hearing the interurban electric railroad companies were all dismissed from the action, because no evidence was introduced-tending to show that said companies were operating their cars within the city and collecting city fares, and because no evidence was before the court that any of them had -entered into such contracts with the city company as are authorized by Secs. 9130, 9131, 9132 and 9133 G. C., which provide that while the cars of an interurban electric railroad company are being operated by it over and along the tracks of a street railway company in a municipal corporation, under a contract entered into between the two companies in the manner provided in said sections, the ears of the interurban company shall be subject to the obligations imposed by and upon the ears of the city company, and the fare charged by the interurbcm company within the municipality shall not be greater than that fixed .in the franchise held or owned by the city company.

The only evidence in the ease is to the effect that under some arrangement with the Cleveland Ry., the suburban ears are turned over to it, when they reach the city limits, and are operated by it and fares collected by it, within the city.

Such being the ease, the suburban cars after they enter the city, being in effect cars of the Cleveland Ry., and being operated and controlled by it exclusively, the suburban companies are neither necessary nor proper parties to this suit. We have no evidence that they have any interest in the fares collected.

The Cleveland Ry. claims the right to operate said suburban ears in the manner complained of under Sec. 24 of the Taylor grant and an ordinance of the city of Cleveland, passed in conformity to said section on December 26, 1911. Said See. 24 reads, in part, as follows:

“The company (that is, the Cleveland Railway Company) may transport along and upon its lines, in suitable cars, such materials, supplies, appliances and tools as it may need for the construction, maintenances and operation of its roads. It may carry upon its passenger cars, or upon other cars, mail for the government of the United States. It may operate funeral-ears, observation cars, express passenger service, and other special ears, at rates to be fixed from time to time by the council of the city of Cleveland, not lower than the rate in force for the carriage of passengers from time to time, as is provided by the terms of this ordinance. ’ ’

Said ordinance of December 26, 1912, reads as follows:

“Whereas, the Cleveland Railway Company is operating within the limits of the city of Cleveland the ears of the Cleveland, Painesville & Eastern Railroad Company, the Cleveland & Eastern Traction Company, the Cleveland, Southwestern & Columbus- Railway Company, the Cleveland, Youngstown & Eastern Railroad Company, the Lake Shore Electric, and the Northern Ohio Traction & Light Company by contract between the Cleveland Railway Company and said companies; and
“Whereas, all of said companies are engaged in interurban traffic and said cars are operated'from the vicinity of the public square in the city of Cleveland to the various municipalities within and outside of Cuyahoga county; and
“"Whereas, all of said companies are engaged in interurban traffic and said cars are operated from the vicinity of the public square in the city of Cleveland to the various municipalities within and outside of Cuyahoga county; and
“Whereas, Section 24 or ordinance No. 16238a authorizes the Cleveland Railway Company to operate express passenger service and other special cars at rates to be fixed from time to time by the council of the city of Cleveland and not lower than the rate in force for the carriage of passengers from time to time, as is provided by the terms of ordinance No. 16238a;
“Now, Therefore, Be it Resolved, by the council of the city of Cleveland, that the Cleveland Railway Company in the operation of the ears of the Cleveland, Painesville & Eastern Railroad Company, the Cleveland & Eastern Traction Company, the Cleveland, Southwestern & Columbus Railway Company,- the Cleveland, Youngstown & Eastern Railway Company, the Lake Shore Electric Railway Company, and the Northern Ohio Traction & Light Company, is hereby directed to stop the said interurban ears outgoing from the public square only for the purpose of taking on passengers whose destinations are to points beyond the city, limits and to stop said interurban cars in-going to the public square only for the purpose of discharging passengers. Whenever practicable, by reason of existing ‘ Ys ’ and turnouts, the Cleveland Railway Company is directed to give the right-of-way to said interurban cars.
“Be it Further Resolved, That said interurban cars of said the Cleveland, Painesville & Eastern Railroad Company, the Cleveland & Eastern Traction Company, the Cleveland, Southwestern & Columbus Railway Company, the Cleveland, Youngstown & Eastern Railway Company,, the Lake Shore Electric Railway Company and the Northern Ohio Traction & Light Company, operated by the Cleveland Railway Company, are hereby designated as special cars and as express passenger ears, and the rate of fair on said cars within the city limits is hereby fixed at five cents without the right of transfer either to or from said interurban ears; except where the right of transfer is stipulated in the suburban grant under which such cars are operated.”

The Taylor grant was a renewal grant, and we hold that Section 24 was within the power of the city to enact. By said section, the city granted the railway company the right to operate express passenger service and other special cars, and reserved the right to fix the rate of fare charged on such special cars, from time to time, the only condition being that the rates for such service and on special ears should not be lower than the rate in force for the carriage of passengers on regular city cars.

Having reserved this right to fix the rate of fares on special cars, the action of the city council in doing so on December 26, 1911, was within the terms of the contract between the city and the railway company, contained in the grant or franchise, and is lawful and binding upon both the city and the railway company and upon the public, for whom the council acted, as well.

Nor can there be any question that under the Taylor grant the company and the city can agree upon proper stopping places for cars and, having authorized express passenger service, that can only be obtained by eliminating many ordinary stops in the manner provided by the ordinance of December 26, 1911.

Plaintiff suggests that because said ordinance designates the cars to be specially operated as the cars of the suburban traction companies, naming them, said ordinance itself is ineffectual to grant the Cleveland Ey. the right to operate them as it does, but is an effort to authorize the suburban companies to operate their cars in the city in, an unlawful manner.

True, the ears are described as the cars of the suburban companies ; they might have been described by color or number; the method used, however, was a convenient and proper one and no difficulty arises from it, for it is plainly stated by the ordinance that “the Cleveland Ey., in the operation of the cars (describing them as aforesaid) is hereby directed,” etc. Nowhere in the ordinance is any direction or authority given to the suburban companies, and its entire purport is within the purview of the Taylor grant and it operated upon and binds the Cleveland Ey. alone.

The petition is dismissed.

Marvin and Niman, JJ., concur.


text:
    MORTGAGES — RECORD.
    [Wood (6th) Circuit Court,
    October 24, 1912.]
    Richards, Kinkade and Wildman, JJ.

      Electa Conklin v. Rozell Tyler et al.
    1. Failure to Record Assignment of Mortgage Renders Lien Invalid as to Subsequent Innocent Purchaser from the Mortgagee.
    Where a grantor of land accepts in part payment a note and mortgage, which he assigned but no record was made of the assignment, and subsequently the grantee and mortgagor reconveyed the property to the grantor, who promised to surrender the mortgage but delayed doing so, and in the meantime he sold the property to a third party who had no knowledge of the assignment of the mortgage, the said innocent purchaser takes the property free from the lien of the assigned mortgage.
    2. Steps Necessary to Make Tender Effective.
    To render a tender effective, it is necessary not only that it be made prior to the bringing of the action, but also that the amount be brought into court and paid over to the clerk before trial is had of the case.
    Error.

      E. D. Bloom, for plaintiff in error.

      N. B. Harrington, for defendant in error.

       Affirming Conklin v. Tyler, 24 Dec. 511 (13 N. S. 441).

   KINKADE, J.

Error to the common pleas court of Wood county.

This was an action in the court of common pleas based upon certain promissory notes secured by two mortgages. There was no dispute as to the balance due upon four of the notes secured by one of the mortgages, nor as to the validity of that mortgage. The contest was with respect to one note secured by the other mortgage. As- was found by the common pleas court, very little dispute, if any, existed between the parties as to the facts in the case touching even this note and mortgage. The question presented for our consideration can be stated briefly and the dates omitted, as they are numerous and not material to the decision, of the question here.

Twenty acres of land were sold by the owner thereof and a deed executed; the grantee at the same time executed to the grantor a purchase money mortgage to secure the greater part of the selling price. After this occurred the grantor to secure an indebtedness of his own to a third party assigned the purchase money note and mortgage to the third party as collateral security for that debt. Following this the grantee concluded that the sale was one he would not be able to carry out and solicited the grantor to surrender his note and mortgage and take a reconveyance of the property. Three hundred dollars had already been paid by the grantee on the purchase price and for this he took a promissory note from the grantor, and executed a warranty deed in due form, reeonveying the property to the grantor. The assignment of the purchase money note and mortgage by the grantor to the third party was not entered upon the- record until long after this. The grantor explained to the grantee, upon receiving a reconveyance of the property, that he was unable at that time to return the purchase money note and mortgage for the reason that it was temporarily beyond his cnu trol and concealed the fact that he had hypothecated it for his own purposes, as stated.

After receiving a reconveyance of the property from his grantee the grantor placed the deed reconveying the property to him upon record and then sold the property to the defendants in this action prior to the time of the entering upon the record of the assignment of the purchase money note and mortgage that he had hypothecated, as stated, and the record shows that at the time the defendants; (Tyler), bought the property, they had no notice, actual or constructive, of the assignment of this mortgage by the grantor to a third party or that any such mortgage was outstanding. The record charged them with notice, of course, that such mortgage had been executed and recorded, and so far as the record of that mortgage was concerned it stood unreleased of record and the record also gave them notice that the mortgagor had, as stated, duly reeonveyed the property to-the mortgagee, the party from whom he had received title.

The question is whether, under this state of facts, a good faith purchaser of the property for value can hold the property, as against the owner of the mortgage by assignment, when there appeared nothing upon the record to charge the purchaser of the land with notice that the person holding the mortgage was the owner of it or that any one other than the original morgagee had ever acquired any interest in it.

The court of common pleas held that the defendants having purchased the premises under the circumstances stated had a title thereto superior to that of the party holding the outstanding mortgage, the assignment of which had not been entered of record. We fully concur in the conclusion reached by the court of common pleas on this branch of the case.

The defendants in the case were allowed to recover their costs upon the ground that a tender of the full amount had been made before the commencement of the action.

We can not concur with the conclusion reached by the trial judge, as the record shows that it was admitted in court that the amount due on the 28th day of March was $1,718, and shows that upon that day a tender was made according to a certain paper writing which is copied in the record, and the paper writing avers that the tender was made on the 29th. If the amount mentioned was the correct amount due on the 28th a tender of the same amount on the 29th, evidently would not be sufficient. This may be a mere error of dates and is not the serious thing that attracts our attention. Section 11390 G-. C. states distinctly what must be done to constitute a valid tender. The section reads as follows:

Section 11390. “In an action on a contract for the payment of money, if the defendant answers and proves that before the commencement of the action, he tendered payment of the money due thereon, and before trial pays to the clerk the money so tendered, the plaintiff shall not have judgment for more than the money so due and tendered, without costs, and shall pay the defendant his costs. ’ ’

It will be noted that it is not sufficient to tender the amount-prior to the suit, but that it is quite as important that the amount be brought into court and paid to the clerk, if the party making the tender would avoid a judgment for costs. Nothing appears in the record to show that this was done, and no claim was made in argument that it had been done.

In this state of the record we think the plaintiff is clearly entitled to recover costs as part of the judgment to which she is admittedly entitled to have entered in her favor on the third, fourth, fifth and sixth causes of action, and the judgment of the court of common pleas as thus modified will be affirmed.

Wildman and Richards, JJ., concur.


text:
    JUDGMENTS AND DECREES.
    [Cuyahoga (8th) Circuit Court,
    May 22, 1912.]
    Winch, Marvin and Niman, JJ.
    C. E. Howard v. J. Koblitz & Company.
    Justice Judgment Appealed and Case Dismissed for Want of Prosecution no Bar to Another Action.
    A judgment of a justice of the peace appealed to the common pleas court where the case is subsequently dismissed for want of prosecution is no bar to a subsequent action upon the same cause of action or a part thereof.
    Error.

      J. H. Saltsman, for plaintiff in error.

      F. C. Scott, for defendant in error.
   NIMAN, J.

C, E. Howard brough suit against J. Koblitz & Co. in, the court of common pleas to recover damages of said defendants for the alleged conversion of certain wooden pulleys. The defendants filed an answer to the petition, in the second defense of which was set forth a prior recovery upon the same cause of action by the plaintiff against the defendants. The defendants in said second defense alleged, “that in the action before one John V. Grinley, then a justice of the peace in and for Cleveland township in said county and state, for the same cause of action, alleged in the petition in this case, said plaintiff C. E. Howard, recovered a judgment against these defendants.”

A reply was filed to this answer in the following terms:

“Now comes the plaintiff, and for his reply to the answer of the defendant, says: that an action was brought before Justice Ginley for part of the cause of action alleged in this cause, but further says that same was appealed to the court of common pleas and dismissed for want of prosecution.”

A motion for judgment upon the pleadings was made by the defendants and granted by the trial court. This proceeding in error is prosecuted to reverse the judgment so rendered in favor of the defendants below on the pleadings.

As the pleadings stood when, the motion was heard, it was admitted that the plaintiff had recovered a judgment in the justice court upon a part, at least, of the same cause of action set forth in the petition; that this judgment has been appealed from the court of common pleas and that the cause so appealed had been dismissed for want of prosecution.

The question to be determined here, then is whether the plaintiff in this action is barred from maintaining the same by reason of the recovery in the justice court of a judgment on the same cause of action, which had been appealed from and the appeal dismissed without trial upon the merits.

The precise question involved here was passed upon by this court March 24, 1911, in the ease of Artino v. Leparo, not reported, where, on a similar state of facts, it was held that the plaintiff was not barred from maintaining another action on the claim involved in the former action.

Adhering to the ruling in that ease, We hold that the court of common pleas erred in granting the motion for judgment on the pleadings, and the judgment of the court of common pleas is therefore reversed and remanded for further proceedings according to law.

Winch and Marvin, JJ., concur.


text:
    CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    May 10, 1912.]
    Niman, Pollock and Dustin, JJ.
    Judges Pollock (7th Circuit) and Dustin (2d Circuit) sitting in place o£ Judges Marvin and Winch.
    Harry Koblitz v. Brookside Brick Company et al.
    1. Demand and Refusal of Officers to Bring Suit for Corporation Justifies Minority Stockholder to Sue.
    Although generally a stockholder can not bring an action in his own name but for the benefit of the corporation, upon a cause of action existing in favor of the corporation, without alleging and proving demand upon the corporation, or its proper officers to bring the action, and refusal on their part to act, yet where the demand would have to be made upon those who are charged with having committed the wrongs which it is sought to redress and against whom- the action would have to be brought, and, under the circumstances, would be a vain thing, its necessity is dispensed with.
    2. Corporate Officers not Required Personally to Finance Company.
    Tlie highest good faith on the part of an officer and director of a corporation does not require him to finance the company out of his own resources so as to enable it to take advantage of a favorable option.
    Appeal.

      Harry Koblitz and Wing, Myler <& Turney, for plaintiff.

      W. W. Cole, F. G. Scott and Martin W. Sanders, for defendants.
   NIMAN, J.

The plaintiff in this action is a minority stockholder in the defendant, the. Brookside Brick Co., a corporation organized under the laws of Ohio. He brings this action on behalf of him¡self, and all other stockholders of said company similarly situated, to correct certain alleged abuses in the management of the corporation claimed to have been committed by the majority stockholders in the control of the board of directors, and to secure redress for the corporation on account thereof.

Stated briefly, the facts established by the evidence are as follows:

In 1905 the Brookside Brick Co., a West Virginia corporation, and the predecessor of the defendant, the Brookside Brick Co. of Ohio, was the owner of a brick plant near Brookside Park, in the city of Cleveland. Its supply of clay for the making of brick was nearly exhausted and its financial resources were limited.

On September 11, 1905, a regularly called special meeting of the stockholders was held, the minutes of which show that a majority of the issued and outstanding capital stock was represented, and that the following motion was unanimously adopted:

“Moved and seconded that the proposition made by Mr. Louis Koblitz to the B. B. Co., which is as follows, be accepted: Said Louis Koblitz to buy 290 shares treasury stock of said B. B. Co., said Louis Koblitz is to buy the 10% acres more or less, south of and adjoining the plant of the B. B. Co., being the same land upon which H. Spitz, manager of the B. B. Co., received an option from L. M. Plummer, Pittsburgh, Pa., and for which the said H. Spitz agreed to pay $700 per acre. The aforesaid Louis Koblitz to sell to the B. B. Co., on royalty of ten cents per thousand brick the clay from said land. Said clay to be used for the manufacture of brick. Said royalty to be based on brick- sold, delivered and accepted; and the said Louis Koblitz is to give the B. B. Co: the right to take clay from said land for the period of one year, with the privilege of extending said right to take clay at the same price, ten cents per M. brick, for one year longer; and the said Louis Koblitz is to give the said B. B. Co. the right to purchase said land at the same price be paid for same within the time the said B. B. Co. has the right to take clay from said land on royalty.”

The Louis Koblitz mentioned in this section is the Koblitz who is one of the defendants in this action. The capital stock of the West Virginia corporation was 1,000 shares of the par value of $50 per share. The 290 shares' of treasury stock sold to Louis Koblitz under the terms of the foregoing motion were sold at $20 per share, making a total price of $5,800.

After this_ motion, was adopted, Louis Koblitz took his stock and paid $5,800 for it as stipulated; he also bought the 10% acres of clay land and the company proceeded to take clay therefrom for the manufacture of brick, and paid the royalties provided therefor. .

At about the time Louis Koblitz acquired this stock, or a short time before, he also acquired 220 shares from Herman Spitz, giving him 510 shares in all out of a capitalization of I,000 shares, and vesting him with the power of control in the corporation. He was at once elected to the board of directors and was chosen treasurer of the corporation, and he, and those who may be presumed to be under his control and influence, have been in control ever since.

In May, 1906, the West Virginia corporation was dissolved and the defendant, the Brookside Brick Co., was organized under the laws of Ohio, with the same capital stock. The property and rights of the old company were turned over to the new company, and the liabilities of the old were assumed by the new. Stock in the West Virginia company was exchanged for a like amount in the Ohio company.

The money paid by Louis Koblitz for his treasury stock was paid to the bank to apply on an indebtedness of the company amounting to $15,200.

The option provided for in the proceedings of the stockholders’ meeting of September 11, 1905, covering the 10% acres of land, was not exercised by the company, and on October 15, 1907, after the two years provided in the option had expired, a stockholders’ meeting was held at which 614 shares were represented. The following resolution was adopted at this meeting:

“Whereas, the Brookside Brick Company, holders of an option on a certain tract of land about 10% acres adjoining- the Brookside Brick Company plant, and known as the Plummer property, from which they have been using clay on a royalty, said option dated September 11, 1905, and expired September II, 1907; and
“Whereas, the Brookside Brick Company being unable- to take advantage of said option, instruct the secretary to notify the owner of said tract of land upon which option was held, in writing, of their inability to accept or take advantage of said option.”

It appears that at no time during the two years covered by the option, was there any money on hand to take advantage of it. September, 1906, a destructive fire occurred which made necessary the rebuilding of a part of the company’s plant at an .expense of several thousand dollars. In the early part of 1907, the company owed the United Banking Co. $11,000, which was secured by mortgage on the company’s plant as well as by a mortgage given the bank by Louis Koblitz on the 10% acres covered by-the option. The company was also indebted to Louis Koblitz in the sum of $13,000 which he had loaned it on a second mortgage.

At the same stockholders’ meeting at which it was voted to notify Louis Koblitz that the company could not take advantage of the option a resolution was adopted authorizing the making with the owner of the 10% aeres of a royalty contract for clay, on the basis of twenty-five cents per thousand brick manufactured, sold and delivered, and on the 16th day of December, 1907, such a royalty agreement was made between the company and the defendant, Joseph Koblitz, in whose name the property then stood. The royalties paid under this agreement and extensions thereof on the twenty-five cents per thousand basis, amounted to something over $11,000.

The company continued in business until February 17, 1912, when its board of directors made an assignment of all its property to the defendant, Lawrence Koblitz, for the benefit of creditors.

Thereafter, the plaintiff in this action filed a motion in the insolvency court to remove the assignee upon grounds similar to the grounds set forth in his petition in support of the relief prayed for by him. This motion on hearing in the insolvency court'was overruled.

The plaintiff, by this action, seeks to have the deed of assignment declared null and void and set aside, and a received appointed; to have an accounting between the Brookside Brick Co. and the other defendants as to the moneys received by such defendants from the company; and to have such relief decreed as will result in a suspension of the two years time limitation in the option contract so that the company, freed from the alleged antagonistic influences of the defendant Louis Koblitz, may have an opportunity to take advantage of said option.

Some technical objections have been interposed against the right of the plaintiff to maintain this action.

It is urged by the defendants that the questions involved in this action have been adjudicated by the decision of the insolvency court on the motion to remove the assignee, but in our opinion the issues before us are much broader than the issue raised by the motion, and while the motion might be supported or opposed in part by the same evidence that would support or oppose the averments of the petition, yet the matters in issue in the two hearings are entirely different.

It is also contended by the defendants that the plaintiff can not maintain his action as a stockholder without first making demand upon the proper officers of the corporation, or the assignee, to start suit to redress the grievances complained of, and showing a refusal to comply with such demand.

It is the rule generally that a stockholder has no right to bring an action in his own name upon a cause of action existing in favor of the corporation, and in which the corporation is the proper plaintiff, unless the corporation has refused to prosecute the action, and it is therefore necessary for a stockholder who institutes such an action, to aver and prove a demand upon the corporation, or its proper officers, to start the action, and a refusal to act. Where the demand, howeyer, would have to be made upon those who are charged with having committed the wrongs which it is sought to redress, and against whom the action would have to be brought, and where a demand under the circumstances would be a vain thing, its necessity is dispensed with. In this case we think the averments of the petition are such as to show a right in the plaintiff to institute the action without having first made a demand upon the officers or assignee.

Coming to the decision of the case, then, upon its merits, we think the entire controversy depends upon the disposition to be made of the plaintiff’s contention, that the company’s rights under the option should not be concluded merely because the two years have passed, but that it should be placed in such a position as that, freed from the control of Louis Koblitz, it may have an opportunity to still avail itself of said option.

Without this 10% acres of land, the company is hopelessly insolvent, and the deed of assignment should stand. If the right to acquire this supply of clay by taking advantage of the option still belongs to the company, the value of its assets will be much greater, and if the value of this land is as great as it is asserted to be, the company would not be insolvent.

It is claimed that Louis Koblitz, being in absolute control of the company .through the ownership of a majority of its stock, caused its affairs to be so managed that the company refrained from acquiring the supply of clay necessary for its further existence, and intentionally allowed the option to expire, so that he might cause the company to fail, and the intimation is that he acted with a view of ultimately acquiring the plant after the failure of the company at a small portion of its value, and using it in connection with his valuable supply of clay. It is urged that his failure to have the company exercise the option has operated as a fraud on the corporation and on other stockholders.

It is said in 2 Thompson, Corporations, Sec. 1216 :

“A director occupies a position of trust or agency for his corporation of such a character that dealings between him and it, where his interest is opposed to that of the corporation, will be subject to close scrutiny and will not be sustained as against the stockholders, unless consistent with good faith and fair dealings on his part.”

Giving the conduct of Louis Koblitz in connection with this option that close scrutiny required by the law, we are compelled to reach the conclusion that his dealings with the company are entirely consistent with good faith and fair dealings on his part.

At the time he was induced to become a stockholder and iri.vest his money, the company was in poor financial condition. It received much financial assistance from him from time to time. In fact, it appears from the evidence, that whenever the company was in need of money, he was the one to whom appeal was made. He mortgaged the 10% acres of land in question and otherwise pledged his credit for the benefit of the company. At no time during the two years provided for in the option did the company have the means at hand to acquire the land, unless the money should be advanced or in some way secured by Koblitz himself. The rule of highest good faith could hardly require him to finance the company out of his own resources to enable it to take advantage of the option. Complaint is made that money was expended in rebuilding the plant after the fire that might have been used to acquire the land, but the money so used was borrowed for that purpose, and we fail to see how any implication, of bad faith is suggested by. the act of the company, under the control of Koblitz, in borrowing money for one purpose and not borrowing it for another.

All of the important transactions complained of here were considered and authorized at stockholders’ meetings, at which a majority of the stock was represented. The option expired September 11, 1907, and the meeting at which it was resolved to notify the owner of the land of the company’s inability to accept said option, was held October 15, 1907. For more than four years after this the company continued in business, and was supported financially by Louis Koblitz until the assignment was made. We are unable to see how more could be required of him as a matter of right and law.

The transaction with respect to the making of the new royalty contract with Joseph Koblitz on the basis of twenty-five cents per thousand brick, does not seem to have been unfair. The price was the usual price for clay. The company has used the clay paid for by it and has had the benefit of it. There is nothing in this transaction to call for an accounting.

In view of the conclusions reached by us on the facts as indicated, the relief sought by the plaintiff and the various cross-petitioners will be denied, and the petition and cross-petition dismissed.

Pollock and Dustin, JJ., concur.


text:
    MASTER AND SERVANT.
    [Cuyahoga (8th) Circuit Court,
    May 10, 1912.]
    Niman, Pollock and Dustin, JJ.
    Judges Pollock (7th Cireuit) and Dustin (2d Circuit) sitting in place of Judges Winch and Marvin.
    Guisippe Ruggiere v. Newburgh & South Shore Ry.
    Fellow-Servant Defense not Abrogated in all Cases.
    Where one employee of a railroad company who is assisting another employee of the same grade, his fellow-servant, in replacing old ties with new, is struck a blow on the nose and injured by a mallet carelessly swung by such fellow-servant, the defense of fellow-servant may be made by the railroad company in an action brought against it by the injured employee, notwithstanding the provisions of Secs. 6242, 6244, G. C.
    Error.

      B. D. Nicola, for plaintiff in error.

      Squire, Smders & Dempsey, for defendant in error.
   NIMAN, J.

This was an action brought by the plaintiff in error in the court of common pleas to recovér. damages for personal injuries suffered by him while in the employ of the defendant in error.

At the conclusion of the plaintiff’s case in the court below, the trial court, on motion of the defendant, directed a verdict in favor of said defendant.

Proper steps were taken-by the plaintiff to preserve for reviewing the ruling of the court on the defendant’s motion to direct' a verdict, and the question presented by this proceeding in error is whether or not the trial court erred in so directing a verdict for the defendant.

The evidence tends to establish the following state of facts:

On July 17 or 18,1910, the plaintiff was in the employ of the defendant, and was engaged with others in repairing certain railroad tracks by removing old wooden ties and replacing them with steel ties. A short time before the accident to the plaintiff occurred, the foreman in charge had directed the plaintiff and three others to go to a certain part of the tracks and proceed with the work of replacing the old ties with the new. After reaching the place designated the men started on their work. The plaintiff and another man, by the name of Melano, worked ¡together on this occasion. Melano used what is termed a “ spiffing mallet” to drive the steel ties into position while the plaintiff jheld and placed in the proper place the bolts which fastened the rails to the ties. While the plaintiff was in a stooping position near the end of a tie waiting for Melano to drive it into place so that the bolts could be put through, the spiking mallet, swung ¡by Melano, glanced off the tie or missed it, and struck the plaintiff on the nose, inflicting serious injuries.

It appears, therefore, that Melano was the fellow-servant of the plaintiff and the defendant can not be held liable 'for the injuries suffered by the plaintiff, unless the relation between Melano and the plaintiff, and the liability of the defendant, have been so modified by Sec. 6242 G-. C., or See. 6244 G. 0., as to deprive the defendant of the defense of negligence of a fellow-servant.

Section 6242 is as follows:

‘ ‘ That is all actions brought to recover from an employer for personal injuries suffered by his employe or for death resulting to such employe from such personal injuries, while in the employ of such employer, arising from the negligence of such employer or any of such employer’s officers, agents, or employes, it shall be held in addition to the liability now existing by law that any person in the employ of such employer, in any way having power or authority in directing or controlling any other employe of such employer, is not the fellow-servant, but superior to such other employe; any person in the employ of such employer in any way having charge or control of employes in any separate branch or department, shall be held to be the superior and not fellow-servant of all employes in any other branch or department in which they are employed; any person in the employe of such employer whose duty it is to repair or inspect the ways, works, boats, ■ wharves, plant, machinery, appliances or tools, in any way connected with or in any way used in the business of the employer or to receive, give or transmit any signal, instruction, or warning to or for such employes shall be held to be the superior and not fellow-servant to such other employes of such employer. ”

The evidence discloses no power or áuthority in any way hi Melano to direct or control the plaintiff in the work in which they were both engaged, nor does the evidence bring the case within the other terms of this section. Melano was not h person whose duty it was to inspect or repair the ways, workq and other things enumerated in the statute under consideration, or do the other things therein mentioned in such sense as to become the superior to the plaintiff.

The remaining question, therefore, to be decided is whether Sec. 6244 deprives the defendant, under the facts shown, of the defense of fellow-servant.

Section 6244 provides :

‘ ‘ That in all such actions the negligence of a fellow-servant of the employe shall not be a defense where the injury or death was in any way caused or contributed to by any of the following causes, to-wit: Any defect or unsafe condition in the ways, works, boats, wharves, plant, machinery, appliances or tools, except simple tools, in any way connected with or in any way used in the business of the employer; the negligence of any person engaged as a superintendent, manager, foreman, inspector, repairman, signal man, or any person in any way having charge, care or control of such ways, works, boats, wharves, plant, machinery, appliances or tools; the negligence of any person in charge of or directing the particular work in which the employe was engaged at the time of the injury or death; the negligence of any person to whose orders the employe was bound to conform, and by reason of his having conformed thereto the injuries or death resulted; the negligent act of any fellow-servant done in obedience to the immediate or peremptory instructions or orders given by the employer, or any person who has authority to direct the doing of said act; the want of necessary and sufficient rules and regulations for the government of such employes and the operation and maintenance of such ways, works, boats, wharves, plant, machinery, appliances or tools.”

It is contended that, on behalf of the plaintiff, Melano was a repairman, because he was engaged at the time of the accident in repairing the track of the defendant, and that since his negligence caused or contributed to the injury of the plaintiff, the defense that the plaintiff was injured by the negligence of a fellow-servant, is not available' to the defendant.

We think this contention is not well founded. In our opinion the word “repairman” is used in the statute to designate or describe one who makes repairs, or who is charged with the duty of making repairs upon machinery, tools,, appliances or other property of the employer, used. by another employe, or other employes in the work done for the employer. The evident purpose of including the'term “repairman” in the statute was to protect the employes against the negligence of those who repair the instruments by which such employes perform the duties of their employment, and the places in which they labor. This protection is furnished by depriving the employer of the defense of negligence of a fellow-servant when the negligence of an employe who repairs, or whose duty it is to repair tools, machinery, appliances, or other property of the employer used by another employe, in any way causes or contributes to the injury or death of the latter.

In this ease the employe whose negligence caused, or contributed to, the injury of the plaintiff was not a repairman in the sense indicated, and the trial court committed no error in directing a verdict for the defendant at the conclusion, of the plaintiff’s case.

Although other errors were assigned by the petition in error, nothing in support thereof has been brought to our attention and the judgment of the court of common pleas is affirmed.

Pollock and Dustin, JJ., concur.