text:
    RIGHTS UNDER SALE ON EXECUTION.
    [Circuit Court of Lucas County.]
    Anton Warns v. Jennie Reeck.
    Decided, February 19, 1905.

      Sale on Execution—Questions on Distribution—Rights of Purchaser— Where Execution toas Levied Between Date of Purchase and Delivery of Deed—Homestead Exemption—Set-off—Costs.

    1. Where a creditor obtains judgment and levies execution on property of the debtor during the interval between the sale of the property by the debtor and execution of a deed and its delivery, the purchaser will be entitled, on distribution of the fund arising from the sale on execution, to the protection of the court to the extent of the amount he paid down at the time the contract of sale to him was made.
    2. An agreement, entered into at the time of the contract of sale, whereby a note against the seller and held by the purchaser was to be surrendered as a part of the payment to be made at that time, will be treated by the court as fully executed, notwithstanding the note was not as a matter of fact surrendered until the day the deed ■ was delivered.
    3. The judgment debtor does not in such a case lose his right to homestead exemption.
    4. Costs will be adjudged against the judgment debtor up to the time he made his application for an allowance in lieu of homestead; costs made thereafter must be paid by the execution creditor.
    Hull, J.; Parker, J., and- Haynes, J., concur.
    This action was brought by the plaintiff to sell a certain piece of real estate in the city of Toledo, upon a judgment which he had recovered on a promissory note. The plaintiff asks to have the property sold, the liens marshalled and this claim paid out of the proceeds of the sale. The judgment was recovered against William Leek, who was the owner of this property and in whom the legal title was at the time the judgment was recovered. . The controversy arose out of the fact that before the judgment was recovered, Leek, the then owner of the property, by a valid contract, had sold it to the defendant, Jennie Reeck, through her husband, who was acting for her, but the deed for the property was not executed until two or three days after the judgment was recovered and execution levied in this county.

      The facts, briefly, are these: William Leek was the owner of this property; he was indebted to Warns on a cognovit note in the sum of about $400. On the first day of September, 1903, Leek made a contract with Herman Reeck to sell him this property for $1,650. On the 3d of September Y/arns went to Cleveland and took judgment on his cognovit note against Leek for $406.35, and had that entered upon the foreign execution docket of this county on the same day, and probably on the next day, September 4th, Warns, through his attorney, gave a written notice to Reeck that he had recovered this judgment and that it had been entered upon the foreign execution docket of this county, it not having been indexed by the sheriff. On September 5th, the next day after this written notice had been given to Reeck, he, Herman Reeck, .who was doing all the business, took a deed to the property in. the name of his wife, Jennie Reeck. Herman Reeck and Leek met in a notary’s office and the deed of the property was made by Leek to Jennie Reeck; and soon after that this action was commenced by the plaintiff to sell this property upon his judgment and Leek was made a party. These facts are substantially admitted; there may be some little difference, but it is not material. Leek, who was made a party, set up a claim for $500 in lieu of a homestead out of the proceeds of this property; and the question is as to the rights of these parties under these facts.
    It is claimed that Leek has no right to the exemption; and it is also claimed that in any event this judgment lien of the plaintiff is superior to any right of homestead under these circumstances.
    As we understand the law as laid down, especially in the 20th Ohio St., 68, and 15th Ohio, 569, Reeck, who purchased the property, is entitled to protection to the amount that was paid down when this contract was made; that the judgment not having been recovered until after the contract had been made, the parties had the right to go on and execute the conveyance, although they knew that the judgment had been recovered and execution had been levied. It was held by the Supreme Court that the purchaser is entitled to protection for the amount he has paid down, and that a contract having been made between the parties which could be enforced by action in specific performance, they may go on after the judgment has been recovered and execute the conveyance, as these parties did here.
    A question of fact arises between the parties as to the amount that was paid down. It is admitted that $50 was paid down on the day that the contract was made, the first of September. Reeck held a note against Leek for $100, and it is claimed that this $100 note was also turned over to Leek on the day the contract was made, or that it was agreed that it should be turned over, and that the note has either been lost or destroyed; and it is claimed that Reeck is entitled to protection to the amount of the one hundred dollar note also; so that he should be found to have paid down $150 instead of $50. The original contract was drawn up by a notary by the name of Kranz; he testifies that he saw nothing of the note at the time the contract was made; and we are satisfied from the evidence that the note was not produced at that time, and was not delivered or turned over by Reeck to Leek on the first of September, the day the contract was made, and not until the 5th; but that it was contemplated between-the parties that this note should be a part of the purchase-money—that it should be turned over by Reeck as part of the purchase-money; of this we are perfectly satisfied, and it is almost inconceivable that it should be otherwise. Leek was insolvent; there was on this property a large number of liens which Reeck assumed as part of the contract, running up to over $1,200. The purchase-price was only $1,650, and it was apparent that Leek was insolvent; and we think there is no question but at the time this contract was made, it was understood that this note should go in as part of the purchase-money. But we think from the evidence that it was not actually turned over to Leek or destroyed until the 5th of September, the day the conveyance was made.
    It is claimed by counsel for plaintiff that if this is true, that it can not be considered in this transaction in favor of Reeek. But we are of the opinion that Reeck had a right to set this note off, would have the right to set it up and set it off against Leek’s claim for the purchase-money. The judgment creditor can get no greater right here than Leek had as to this purchase-money. ITis only right is to step into Leek’s shoes and insist that the money that was coming to Leek should be applied toward his claim. Reeck’s claim against Leek on this promissory note was a debt upon a contract which he would have the right under the statute, Section 5071, to set off against Leek’s claim for the balance due on this purchase-money; and that being true, we think that it should be considered in any event as a part of the down payment, and should be deducted from the amount of the purchase-price, to-wit, $1,650, and that would cut the amount down to $1,500 still due upon this contract.
    Warns’ claim here is only for the balance of the purchase-money still duehe has no lien upon the land, except to secure that; that is, that portion of the balance of the purchase-money that can be appropriated to the payment of his judgment. These other liens, as I say, are ahead of his and amount to something over $1,200.
    The question as to whether Leek was entitled to a homestead out of this or not, under the circumstances, was considered by this court upon a demurrer. The demurrer was overruled, the court holding, under these circumstances, Leek was entitled to claim $500 in lieu of a homestead, and we still adhere to that opinion. He has done nothing so far as we can see that deprives him of his right to a homestead exemption; he has sold his property, his homestead; this was his homestead, and he has no property except what was coming to him out of this purchase-m.oney. Homestead acts are construed very liberally, and it seems to us that he comes very clearly within the provisions of the homestead and exemption statutes of this state; that he is within Section 5441, under which he has a right to property, real or personal, to the amount of $500, in lieu of a homestead. All Leek has in the world is this balance dire on this purchase-price, this credit or choses in action. That statute, Section 5441, the Supreme Court has held, is to be construed to cover money or credits which are held to be personal property. The eoux-t say, in Chilcote v. Conley, 36 O. S., 545, after stating the facts briefly:
    Personal property,’ constxmed ixx conixection with other statutes in pan-i materia, ixxeludes credits and moneys selected by the debtor. Credits and moneys selected by the debtor can not be taken and held uixder an order of attachment or by garnishee process.” Anri in the opinion which was delivered by Judge Mcllvaine, on page 548:
    “This provision should be liberally construed and with the purpose of placing all debtors of the class upon a footing of equality. Hence personal property, as in Section 37 of the Justices’ Act, should be held to include ‘money’ and the librase ‘exempt from execution or sale’ should be construed to mean, in the language of Section 30 of said act, ‘exempt by law from being applied to the payment of the plaintiff’s claim.’ ”
    This proceeding here is in the nature of an attachment or garnishment of this money. The judgment creditor has lost his right to the land, except to have a lien upon it'to secure the balance of the purchase-money—the balance of this purchase-money which is coming to Leek; and Leek would be entitled to $500 of the money, if there was that much remaining after payment of liens, as an exemption in lieu of a homestead. It is impossible for us to see why he' is not entitled to this exemption under the statute.
    The decree, therefore, must be against the plaintiff; there is nothing in this property or in the purchase-money still due to be applied upon his claim. There were several attempts made to settle this matter between the parties, but there was never anything done that amounted to a formal tender between Reeck and Leek, and that is not material here.
    We find, therefore, that the balance of the purchase-money should be paid into court by Reeck, to be applied to the payment of these liens in their priority down to Leek’s claim for homestead, and then what is left, which will be less than $500, should be turned over to Leek in lieu of his 'homestead, which will leave nothing for the plaintiff.
    As to the costs, they will be adjudged against Leek until the time that he made his demand for a homestead, and those accruing since then will be charged against the plaintiff, as the issues have all been decided against him, including the homestead matter. Although Leek gets a portion of this money, judgment for costs can not be enforced against him out of his homestead exemption, as we' look at it, but he ought to pay what has been assessed against him. The petition of the plaintiff will be dismissed.

      Mr. Schaal: We had some .trouble with the costs in the court below; I want to understand now whether Mr. Reeek has to take care of the payment of any of these costs, or whether they are to be paid out of the money coming from Leek?
    The Court: We are of the opinion that Reeek ought not to pay any costs. Tie has been ready at all times, the testimony shows, to pay into court the balance of the purchase-money and let it be applied as the court might direct, and is still ready and willing, and now offers to pay the balance of it.

      F. E. Bheinfmnlc, for plaintiff.

      F. G. Schaal and B. F. Brough, for defendant.


source: Caselaw Access Project

license: Public Domain

text:
    EQUITIES BETWEEN LESSEE AND SUB-LESSEE.
    [Circuit Court of Hamilton County.]
    Patrick J. McHugh v. Catherine Regan, Administratrix.
    Decided, July 28, 1906.

      Lease—Privilege of Purchase—Eviction—Breach of Covenant—Of Quiet Enjoyment—For Payment of Taxes—Bet-off—iWaiver.

    1. A sub-lessee, with a privilege of purchase, who loses this privilege and is compelled to attorn to the owner, because of the failure of the lessee to renew the lease or exercise his own privilege of purchase, suffers a breach of the covenant for quiet enjoyment and is entitled to any damages he may have sustained by reason of eviction from his privilege.
    2. A previous breach by the sub-lessee of a covenant for payment of taxes does not afford a ground of action against him by the lessee, where every circumstance surrounding the matter indicates that the forfeiture of the estate for non-payment of taxes was waived.
    Gieeen, J.; Jelke, P. J., and Swing, J., concur.
    The facts in this case, briefly stated, are as follows:
    John L. Whetstone, the owner of certain real estate, leased the same to John Regan, now deceased, for a period of five (5) years, from May 1, 1896, with the privilege of purchase during said period for $4,000. John Regan leased said property to P. J. McHugh for a period of ten years from May 1, 1897, with the privilege of purchase at any time during the continuance of the lease for the sum of $6,000,

      John Regan failed to exercise his privilege of purchase during the term of his lease and failed to renew it at its expiration, and was therefore unable to carry out his agreement with McHugh. McHugh' continued to pay rent to the plaintiff below, as administratrix of John Regan, deceased, until about November, 1901, several months after the lease from Whetstone to Regan had expired. About August 13, 1901, McHugh received notice from Mr. Whetstone’s agent that Regan’s lease had expired, and that he, McHugh, continued in the premises only with Whetstone’s consent. And on November 1, 1901, he received a second notice from Whetstone’s agent that all moneys for rental of the property must be paid to him,» beginning on that date.
    Mrs. Regan, the plaintiff below, demanded rent of McHugh on November 1, 1901, when he told her of the notice from Whetstone, and that thereafter he would pay rent to him, which he did at the rate of $35 per month. The rental under the lease from Regan to McHugh was at the rate of $25 per month, and the payment of all taxes upon the premises. McHugh failed to pay the taxes for the years 1899 and 1900, for the recovery of which this action was commenced.
    McHugh, by way of cross-petition, claims damages in the sum of $1,500 by reason of the-loss of his privilege to purchase the premises for the sum of $6,000.
    The case was tried before a jury, and at the conclusion of the evidence, the court, upon motion of the plaintiff, dismissed the cross-petition and instructed the jury to return a verdict for the amount claimed in the petition, which is the error complained of.
    It is plain that Regan could not perform the covenants of his lease, which was in the ordinary form, unless he exercised his right to purchase the premises prior to May 1, 1901, which he failed to do. The only alternative left to McHugh, after that day, was to pay the rent to AVhetstone upon his terms, or vacate the premises. This, of itself, was an eviction, and entitled McHugh to set off against the claim of the plaintiff for unpaid taxes any damages he sustained by reason of such eviction and the consequent loss of the right to purchase the premises at $6,000. In the Am. & Eng. Encyc. of Law, 2d Ed., at page 482, the law is stated as follows;

      “It is not necessary that the tenant be actually and physically removed from, or should leave the demised premises, for, in the absence of fraud or collusion on his part, he is evicted where-he attorns to the holder of the paramount title and takes a new lease from him under pressure of a possessory writ or threats of expulsion.”
    In the case of Holbrook v. Young, 108 Mass., 83, the first proposition of the syllabus'is as follows:
    “A let a shop to B as tenant at will, who under-let it by a written lease to C. A demanded the rent from C, and said that unless he paid the rent to him and took a lease from him, he must leave. C paid the rent to A and took the new lease. Held: In an áction by B against C for rent, that there had been a breach of the covenant for quiet enjoyment in the lease from B to C, for which C could recoup.”
    Substantially the same principle is announced in the case of Lana v. Furry, 31 O. S., 574. It is very clear, therefore, that McHugh, through no fault of his, was compelled to pay the rent to the real owner of the premises or quit the same. It is suggested, however, that prior to the expiration of the lease from Whetstone to Regan, that McHugh had failed to pay the taxes for which this suit is brought, and that thereby he had forfeited his lease.
    There is no doubt that, under the terms of the lease, the same might have been foreclosed for such non-payment, had the' lessor so elected. Neither Regan nor his administratrix ever insisted upon a forfeiture, but, on the contrary, demanded and received the monthly rent from McHugh until about November 1, 1901, when he commenced paying rent to the owner, Whetstone. Every circumstance surrounding the transaction indicates that the forfeiture of the estate for non-payment of taxes was waived. Chaffee v. Foster, 52 O. S., 358.
    We are of opinion, therefore, that the defendant was entitled to have the issue raised by the cross-petition submitted to the jury, and that the court erred in sustaining the motion of the plaintiff. Judgment reversed, and cause remanded for a new .trial.

      Chas. J. Hunt and O. W. Bennett, for plaintiff in error,

      Frank M. Coppoek, contra,


text:
    INJURIES INFLICTED BY SERVANTS WITHIN THE SCOPE OF THEIR EMPLOYMENT.
    [Circuit Court of Lucas County.]
    The Cincinnati, Hamilton & Dayton Railroad Company v. John B. Klute.

    Decided, January 30, 1905.

      Torts by Servants—Presumption as to Their Being Employes—Ancl Acting Within the Scope of Their Employment—Evidence of Acts Immediately Subsequent to the Injury—Questions for the Jury— Punitive Damages.

    After controversy between a municipality and a railroad company relative to the right of the company to lay tracks across ground claimed as a street, a car loaded with material for track-laying, and accompanied by fifteen or twenty men, emerged on Sunday afternoon from the company’s warehouse and was pushed down to the point of the disputed crossing, where the plaintiff, a policeman, was stationed to prevent the laying of the track. The work of unloading the car began against the policeman’s protest, and while attempting to arrest one of the men, and after a command by one in charge to throw the ties on the policeman if he did not get out of the way, he was struck by a tie and injured. Held:

    1. That in the absence of evidence to the contrary the facts were sufficient to warrant the jury in finding that the men were employes of the railroad company, and that they were acting under orders from the company in attempting to lay the track.
    2. That in throwing a tie upon the plaintiff these men were, under the circumstances, acting within the scope of their employment and authority.
    3. That evidence of acts on the part of the men immediately subsequent to the injury of the plaintiff, including the pushing with a locomotive of a car over the end of the rails into the street for the apparent purpose of obstructing the street, was properly admitted as a part of the res gestae.

    4. That it was a case where punitive or exemplary damages were properly included.
    Hull, J.; Haynes, J., 'and Parker, J., concur.
    This action was brought by Elute, a policeman, to recover damages which he sustained at the hands of employes of the railroad company. His claim is tliat at the time he was injured the employes of the company referred to were acting under the authority and directions of the company within the scope of their employment, and that they maliciously and willfully injured him, while so acting, and he therefore brought this action for damages.
    The injury occurred on July 5th, 1903. On that day, and for some time prior thereto, there had been a controversy going on between the city of Toledo and the railroad company in regard to a certain street, or alleged street, in Toledo, on the east side of the river, called Wilmot street, the city claiming that the street had been projected through the territory at that point, and the railroad company denying that such was the fact. For some time prior to July 5th, 1903, the railroad company had been threatening to lay a track across this stre.et, and policemen had been stationed there from time to time to prevent this, and on the morning of the 5th, which was Sunday, Klute, under orders from his superior officer, took his station under a bridge-near this point, where it was thought that the railroad company contemplated laying a track across the street. At about 2:30 or 3 o ’clock in the afternoon the work of 'laying the track commenced, out of which the trouble arose.
    At the close of the testimony for the plaintiff a motion was made to direct a verdict for the defendant. This was overruled; and thereupon the railroad company announced that it did not desire to offer any evidence. The ease then went to the jury on the testimony offered by the plaintiff, and a verdict was returned in favor of Klute for damages.
    The case involves the question as to whether what the men ■did in the way of injuring the plaintiff was within the scope of their employment, and, in the first place, whether they had any authority to do the work they were doing. It is claimed by the plaintiff in error that the court erred in not directing a verdict for the defendant upon the motion, and there are some other points in the case.
    There is no positive evidence—no witnesses testified that the men who were at work doing this work were ordered by the railroad company to do it, or that they were in fact in the employ of the railroad company; but while Klute was at his station under the bridge, a car with some fifteen or twenty men came out of the railroad company’s warehouse, which was near, apparently railroad men, and started with the car, pushing it, and the car was loaded with rails and ties and plates and spike-mauls. AAUth the car so loaded, they started down the track toward this street, fully equipped to lay the track, and apparently in the employ of the railroad company. They came out of the warehouse as railroad men would, and there was every indication that they were employes of the company, and when they reached the street, they began the work of laying the track across it.
    AVe think that, in the absence of any evidence to the contrary, the facts were sufficient to warrant the jury in finding that the men were employes of the railroad company, and had been ordered to do this particular work. This was on Sunday, and the work was being done with railroad tools and equipment in the ordinary way, and they were permitted to continue without any interference on the part of the railroad company or its officers. They went to the street and there' began to unload rails and ties and to build the track, and before they stopped they got half-way across the street. We think the evidence was ample to raise a presumption that would need to be overcome by evidence that these men were doing what they did under the direction and authority of the railroad company. It is hardly to be supposed that a gang of men of the number of fifteen or twenty would go to the railroad warehouse and start out on Sunday afternoon to perform this work unless they had been hired to do it and had authority.
    But it is said that the injury to Klute was not, in any event, within the scope of their authority, or of their employment; that if they injured him they stepped outside of their employment entirely, and that, therefore, the railroad. company is not liable. It is well settled in this state that an employer may be liable for the willful and malicious acts of an employe, if he is within the scope of his employment. In The Nelson Biishwss College Company v. Lloyd, 60 Ohio St., 448, the first paragraph of the syllabus is:

      “An employer is liable for the willful or malicious acts of his servant done in the course of the servant’s employment.”
    In the opinion many authorities are cited as to the growth of this doctrine and of its establishment, and the whole question is discussed by the judge delivering the opinion. I will come back to this case later, on some other points in the case.
    Was this in the scope of their employment—this injury of Kulte ? The testimony shows that Klute came out into the street as soon as he saw this demonstration and ordered the men to stop. He was in the full uniform of an officer, including his helmet and -badge. He ordered them to stop, and told .them he was there to prevent them from doing this work; that if they did not desist he would be required to arrest them. They paid no attention to him. Assuming, as I do, that they were acting under the authority of the railroad company in laying this track, they continued with the work they had been directed to do, and Klute undertook to stop them, but without success. Finally he took hold of one, and pushed him a little beyond the car. There were some men on one side of the car and some on the other side pulling the car, others were pushing it, and, after the car stopped, they commenced pulling the ties off. One of the men on the other side of the car, apparently in authority—there were two men there who appeared to be in authority, O’Brien, who was section foreman, apparently, and Tomkins, who was called a yardmaster—called out “Why don’t you get these ties off?” and they answered “We can not, the policeman is in the way.” The same man replied “To hell with the policeman; if he doesn’t get out of the way, throw the ties on him. ’ ’ About that time Klute was in a struggle with one of the men; he had his back turned to the car, and just then a tie struck him in the back, injuring him quite severely.
    These men apparently had been directed to go out and lay that track across that street. The railroad company understood very'well that the city objected to their laying the track. The controversy had been going on for some time. Sunday had been selected as the day for doing this work, other than on a weekday, perhaps on account of the difficulty of securing injunctions, etc. These men were in charge of two men, and obeyed their orders; they paid no attention to the policeman when he told them to desist and threatened them with arrest; he was at the time interfering with the unloading of the ties and the building of this track; and the men were ordered if he got in the way to throw the ties on him; and they did throw a tie on him; at least, that is the claim 'of the plaintiff.
    We think there is sufficient evidence to show, in the absence of anything to the contrary, that in throwing this tie on Klute under these circumstances, they were acting within the scope of their employment and authority; and it is a fair presumption, from all these demonstrations, that they were acting under instructions from the railroad company in attempting to put the track across the street, and paying no attention to the policeman when he got in their way and interfered with the work.
    It is said that in the throwing of the tie, it does not appear but that one or more of the men picked up the tie from the ground and struck him in the back, or took it off the car, not for the purpose of carrying on the work, or in furtherance of the work they were doing there, but to strike Klute, and that under such circumstances the act would be beyond the scope of their authority. And it is undoubtedly true, under the authorities, that, if the employe commits an act of violence while doing his work, and goes outside of his work and employment to • do it, and it is not necessary in the performance of his work, that in such case the employer is not liable. Although Klute did not see just how this happened, we think the jury were warranted in finding that he was struck in the back by a tie that had just been taken off the car and let fall on his back purposely to get him out of the way. His back was turned at the time, but he was only about a foot away from the end of the car, and about the same distance from the side; he had just had this controversy with the men; he had just heard the order given, if tho policeman did not get out of the way, to hit him with the tie, and immediately after that he was struck. All the circumstances and things that were said and done there at the time, we think, indicate that this tie was thrown upon Klute for the purpose of preventing him from interfering with the work; and the evidence was sufficient to sustain the claim that it was done within the scope of the authority of the men.

      In the ease before referred to, 60th Ohio St., 448, this question is discussed at some length. In this case the plaintiff was in the employ of the business college and was repairing air electric light in a room; the janitor come in to do his work, and the plaintiff, who was repairing an electric light, had a ladder and was standing on it doing his work; the .janitor.could not complete his duties without the ladder being moved; he requested the electrician to step down from the ladder until he could do his work; the electrician declined to do so and the janitor got angry and shoved the- ladder so the man on the ladder fell off and was injured. The court of common pleas took the case from the jury and directed a verdict in favor of the defendant; this was reversed by the circuit court and the Supreme Court affirmed the circuit court, holding that the ease should have gone to the jury. In the second paragraph of the syllabus, the court say:

      “■2. When the act complained of may or may not be, from its nature, in the course of the servant’s employment, and this depends upon the real motive or purpose of the servant in doing the act, it is a question for the jury to determine upon a consideration of all the circumstances adduced in evidence.
    “3. In a suit against an employer for an injury caused by the wrongful act of his servant, and the evidence is such that different minds may draw different conclusions from it as to real motive and purpose of the servant in doing an act, apparently within the course of his employment, it should be left to the jury to determine the question, under proper instructions, as to the law; and it is error for the court, in such case, to direct a verdict for the defendant.”
    It seems to us that the case at bar is a stronger ease to submit to the jury than the Nelson Business College case; and the Supreme Court held that should have gone to the jury. The wliole question is discussed very fully in the opinion. There are other eases in Ohio bearing upon the question, as to when the malicious or willful act of the employe should be regarded as within the scope of the employment, and therefore the master liable for such malicious and willful acts.
    The ease of Biranahm Brothers Company v. Coit, 55 Ohio St., 398, is a strong case. Here the employe was selling milk under contract to the Stranahan Brothers Catering Company, among others, and his employe, while driving the milk wagon, adulterated the milk with water, and delivered it in that condition; he did this because he had an unfriendly feeling towards his master, a malicious feeling, and wanted to injure him. The master had no knowledge of his doing anything of the kind. But the Supreme Court held that this was done in the course of his employment and within its scope, and that the master was liable in damages for such act of his servant, although done to injure, his master.
    The case of The Passenger Railroad Company v. Isaac Young, 21 Ohio St., 518, is an authority on this general subject and may also be cited.
    We think in the case at bar 'the jury might well find from this evidence that what was done there was within the scope of the employment. These men were apparently determined to build the track across the street in the face of opposition, and, in fact, Tompkins, I think it was, or 0 ’Brien, said to Elute immediately after the injury (and as part of the transaction), that he told his men before they went out that there was a policeman down there, but that as long as he did not interfere with them to do nothing to him; but if he interfered, to hit him with the spike maul; this was just before they came out of the warehouse; and we think it is fair to conclude that it was the intention to lay this track against the protests of the policeman, and against his forcible opposition, if neeessa .
    That portion of the charge of the court to the jury that they might include punitive or exemplary damages was excepted to. But it seems to be settled that in this kind of a case punitive damages may be included. In The Atlantic & Great Western Railway Company v. Michael Dunn, 19 Ohio St., 162, the syllabus is:
    “A corporation may be subjected to exemplary damages or punitive damages for tortious acts of its agents or servants done within the scope of their employment, in all cases where natural persons, acting for themselves, if guilty- of like tortious acts, would be liable to such damages. ’ ’
    And this seems to have stood as the law on this subject ever since.

      There was evidence that the plaintiff was also struck with a spike maul on his back after -he had been struck with the tie. One of the men, as the plaintiff was 'walking away, struck him on the back with a spike maul; but any claim for damages on that account was withdrawn by the court from the jury, on the ground that what he did on that occasion was not within the scope of his employment,-but that it was purely an assault and battery on Klute, for which the defendant was not liable.
    Evidence was admitted as to what occurred after the injury by the tie. It is claimed that this should not have been done. The controversy continued for some time. Klute sent to the central police station for help, the chief of police finally came with other officers, and many things were said and done by the men who were there; some of it was admitted in evidence as part of the transaction, of the res gestae, and we think properly so; it was one continuous transaction, and we think this evidence was properly admitted. After other policemen had come and the laying of the track was stopped, some of the men were taken to the police station and soon after that a locomotive drawing a C., II. & D. ear came out of the railroad yards— or rather pushed a car out of the yards and across the street so far as the track had been laid until the rails spread, and then shoved the ears over as far as possible on the ground. Evidence of this was objected to, and its admission is claimed to be error, but we think the evidence was admissible. It related to and was connected with the transaction and tended to show that the railroad company authorized the construction of this track across the street, showing that as soon as it was partially constructed they occupied it with a locomotive and a car, and undertook thereby to take possession of the street, and throw a car across it. The locomotive used was a C., IT. & D. engine, and we think, as tending to show that this whole matter was authorized and approved by the company, this was competent evidence.
    A plat of a portion of the city, showing where this street was located, was admitted in evidence; it is claimed that this was error; but we think it was not. There was a controversy here about the street. It is immaterial for the purpose of this ease whether the city had the right to open this street or not. It claimed to have the right and had sent an officer to this point to guard the street; and, although this question was not very material, there was no error in admitting the plat.
    I think I have covered all the points I need mention. In our opinion, the action of the court in refusing to take the case from the jury was correct; the evidence fully warranted the jury in finding that the men were authorized to build the track across this street; that they were expected to use force, if necessary; that when the plaintiff was struck in the back with the tie, they were acting within the scope of their employment. We find no error in the record. The judgment of the court of common pleas will therefore be affirmed.

      Sivayne, Hayes cfi Tyler, for plaintiff in error.

      Ralph Emery and G. A. Seiclers, for defendant in error.

      Affirmed by the Supreme Court without report, December 12, 1905.


text:
    IMPLIED WARRANTY OF GOODS SOLD.
    [Circuit Court of Wood County.]
    The Oil Well Supply Company v. Charle S. Davidson.
    Decided, May, 1906.

      Warranty—Of a Drilling Gable—Authority of Agent to Guarantee— Set-off—Charge of Cou/rt—Usual Course of Trade.

    1. Where an article, which is not accessible for examination by the purchaser, is sold for a specific purpose, there is an implied warranty that it is suited for the purpose for which it is to be used.
    2. Testimony to the effect that the agent who sold the article was without authority to warrant it, is immaterial in the absence of any notice to the purchaser of such lack of authority.
    Parker, J.; Haynes, J., and Hull, J.-, concur.
    This action was originally brought by the Oil Well Supply Company in the Court of Common Pleas of Wood County, to recover for a certain bill of goods that had been sold to one Charles S. Davidson, amounting to a little over a hundred dollars. Admitting the purchase of the goods and the fact that they had not been paid for, the defendant set np by way of set-off, the fact that some time before he had purchased of the supply company a drilling cable at a cost of something over four hundred dollars, it being a cable of considerable length, fourteen or fifteen hundred feet, I believe; and he claimed that at the time he commenced trading with the supply company, he was told by the manager of the store (the manager having made some inquiry as to his financial standing) that if he found anything wrong with any article he purchased, the company would make it right. ITe states that afterwards, when he went to purchase this cable, the manager said he had not in stock a cable he could stand by or would stand by, but that he had one in another store, a branch store at Findlay. The defendant told him he would take it, and thereupon the manager had it sent to Davidson at a point where he was about to drill an oil well, and Davidson received it. He commenced in a day or two tó use it in a well that he had already drilled something like a thousand feet or more deep, and as soon as he commenced to use the rope, it showed that it was of poor quality. It commenced to fray and break, and he had to cut -it off at different times, and finally, after using it but a short time, he had to discard it and get another. It appeared to be rotten and certainly was of no practical use to the defendant, and of no value to him except as it was sold as old junk for a few dollars.
    By way of reply to the answer of the defendant, the supply company claims that its agents have no authority whatever to warrant the worth or quality of goods; and it also denies that any such warranty was, in fact, made; that if made, the agent had no authority whatever to make it; that it was contrary to and against the direct and positive orders of the company.
    The case went to trial and quite a volume of testimony was taken to show that the agents had no authority to make any warranty. Testimony was taken in Pittsburg, in the way of depositions, of the officers of the supply company, and testimony of agents here in the field, showing that there were circulars and letters issued, and a .■form of contract for the purchase of goods was furnished the agents in which it was stated that the company would not warrant any of the goods that were sold, the same being sold upon commission, and not manufactured by them. Testimony was offered on behalf of the plaintiff, and again on behalf of the defendant as to whether there was any general custom in the oil held for the supply stores to warrant the quality of goods, and if the goods failed to be of marketable quality to replace them, and upon that the testimony was quite conflicting.
    At the time the agent sold the cable to the defendant, the form of contract that was required by the company was not used, nor was anything said at that time about the warranty of the goods. The only phrase that it is claimed was used by the agent who sold it, was that he had a cable he was willing to stand by, that it was a higher priced cable than some of the others, and the defendant said he would take that cable, and that cable was, in fact, sent him. At the time of the bargain it was not in the store and the purchaser did not see it, the purchase being made in Trombley, Wood county, and the cable referred to by. the agent being in Findlay, Hancock county, whence it was sent directly to the defendant in the field where he was then at work.
    On this state of facts the court charged the jury fairly and correctly upon the law of the case. The question in regard to the right of the agent to make a warranty turned upon the legal question whether in the usual course of trade and business, an agent of this kind, a general agent, would have the right to make a warranty, and upon that a proper charge was given to the jury. .
    Another question that was made was as to whether there was an implied warranty as to the quality of the goods, that they should be of good merchantable quality and fairly and reasonably fit' for use. One decision cited that we think has some bearing xipon the case is that of Rodgers v. Niles, 11 O. S., 48. In that case it seems there had been a sale of three boilers by Rodgers & Company to Niles & Company, to be used in certain mills the latter were erecting, and it turned out in using the boilers that they were defective, owing to a defect in the material that went into them. A discussion—it seems to have been a very able discussion, which was participated in by some of the leading Cincinnati attorneys—was had as to whether there was an implied warranty by the manufacturers against these secret defects, it being contended on the one side that there was, and on the other side that the manufacturers were only bound to use reasonable care in the selection of the material which went into the boilers. The Supreme Court divided on the question, a majority of the court holding that there was such an implied stipulation.
    I will read from the opinion by Judge Scott:
    “The general rule of common law undoubtedly is, that upon an executed sale of specific goods, the vendor will not be held liable for any defects in the quality of the articles sold, in the absence of fraud or express warranty. Where the purchaser is not deceived by any fraudulent representations, and demands no warranty, the law presumes that he depends upon his own judgment in the transaction, and applies the maxim ‘caveat emptor.’ But to this general rule the requirements of manifest justice have introduced sundry exceptions, of which some are as well settled as the rule itself, while as to others the authorities can not be easily reconciled. We do not propose an investigation of the subject further than is demanded by the case before us.' The principal, if'not the sole, exceptions to the rule are found in cases where it is evident that the purchaser did not rely on his own judgment of the quality of the article purchased; the circumstances showing that no examination was possible on his part, or the contract being such as to show that the obligation and responsibility of ascertaining and judging of the quality was thrown upon the vendor, as where he agrees to furnish an article for a particular purpose or use. Thus, it is said by Mr. Story:
    “ ‘When an examination of goods is, from their nature or situation at the time of the sale, impracticable, a warranty will be implied that they are merchantable. Thus, if the goods be at sea, or not arrived; or if they fill the hold of a ship, so that nothing but the surface can be seen; or if they be in bales, so that an examination of the center can not be made without tearing each bale to pieces, the seller will be understood to warrant them merchantable, and of the quality demanded and expected by the buyers. ’ Story on Contracts, Sec. 834.
    “It is true that the warranty of merchantable quality has, in several cases, been held to be limited to cases where the examination is impracticable, and not merely inconvenient. Syait
      v. Boyle, 5 Gill. & Johns., 110; Hart v. Wright, 17 Wend., 267. So, also, the implication of warranty is said not to extend to cases where an examination, though practicable, would be fruitless, on account .of the latent character of the defects; but only to those cases in which there can be no examination. 1 Parsons on Contracts, 466. The same writer, however, says-:
    “ ‘One exception to the rule of caveat empior springs from the rule itself. For a requirement that the purchaser should “beware,” or should take care to ascertain for himself the quality of the things he buys, becomes utterly unreasonable under circumstances which make such care impossible.’ ”
    Then he cites some eases under the general rule, and says:
    “With respect for the doctrine that a sale made for a particular purpose implies a warranty that the thing sold shall be fit for the purpose, it is said in Smith’s Leading Cases,. 250, that ‘the sounder view seems to be that no■ engagement of this sort can be implied against the vendor, save where the contract is partially or wholly executory ’ ’; and that, in this case, is not in the nature of a warranty, but of an implied stipulation, forming a part of the substance of the contract. ’ ’
    The jury returned a verdict in this case in favor of the defendant, Davidson, and we think the verdict should be sustained.
    The large amount of testimony that was taken in regard to the nqtice to agents, which notice was never brought home to Davidson, must be disregarded.
    The case stands upon the questions, first, whether there was an express warranty, and upon that the jury found in favor of the defendant, and secondly, whether there was a sale of the article for a specified purpose, and an implied warranty that it .was fit for that purpose. Passing the first question, upon which there is a conflict in the evidence, we hold that the vendor is liable upon the implied stipulation. The vendee did not see the cable and had no means of examining it. lie told the agent what he wanted, and the agent told him they had the article at the other store and they would send it to him, and we hold that under such circumstances the vendor was bound to send to him an article that was merchantable, and reasonably fit for the use intended.
    It is very clear from the evidence that for some reason this cable was of poor quality ahd really unfit for1 use—of no practical use; and we hold that the loss should fall upon the vendor. The judgment of the court of common pleas will, therefore, be affirmed, but without penalty.
    I. G. Taber, for plaintiff in error.

      Baldwin é Harrington, for defendant in error.


text:
    NOTICE OF STREET IMPROVEMENT.
    [Circuit Court of Hamilton County.]
    William G. Roberts, Administrator, et al v. The Village of St. Bernard et al.
    Decided, July 28, 1906.

      Executors—Are “Owners of the Land”—Upon Whom Notice Should he Served, When—Executor Properly Served—By Notice Addressed to Heirs of the Lecedent) When—Section 2304.
    1. Executors under a will which, directs them to hold and manage real estate for a term of fifteen years, pay the taxes, etc., and at the end of said term sell and convey the same and distribute the proceeds of sale, are 'the “owners of the land” upon whom service of notice should be made, under the statute providing for street improvements.
    2. An executor of a will, residing in the county and entitled to' a written notice of the adoption of a resolution providing for a street improvement, is bound by a notice addressed to the heirs of the testator, where it appears that the notice was left at his residence, and was actually received and examined by him and was submitted by him to his attorney.
    Giefen, J.; Jelke, P. J., and Swing, J., concur.
    This action was commenced to' restrain the collection of certain street 'assessments levied upon the property of the estate of Noah Babbs, deceased, and of the grounds relied upon, we deem it unnecessary to consider any except, first, that the executors of the last will and testament of Noah Babbs, deceased, were not the owners of land upon which the assessment was levied within the meaning of Section 2304, Revised Statutes; second, if there were such owners, they were not served with notice, as required by that section.
    Item third of the last will and testament of Noah Babbs, deceased, whereby the real estate in question was disposed of, is as follows:

      1 ‘ Item Third. I order and direct that my real estate in Hamilton county, Ohio, consisting of two farms, one of forty-five acres in Springfield township, and the other of thirty-two acres in Millcreek township, be held by my executors for the term of fifteen years from the date of my decease, and at the expiration of the said term of fifteen years, I order and direct that said real estate be sold by my executors and converted into money, and the proceeds of the same, after deducting expenses, I give and bequeath to the following named persons, viz.: To my son, William Babbs, one-sixth; to my son,. John Babbs, one-sixth; to my daughter, Emeline Stratton, one-sixth; to my daughter, Delia Virginia Voorhees, one-sixth; to my stepson, Sylvestor Ralston, one-sixth, and to my grandchildren, Bell Babbs and Charles Babbs, children of my deceased son, Charles Babbs, one-sixth, to be equally divided between them, and shall be distributed to them, my said legatees, by my executors as the same comes into their hands.
    ‘ ‘ During said term of fifteen years, I order and direct my executors to manage and control said farms for the best interest of my estate; to lease and rent the same from time to time, on such terms as they may see proper, collect the rents and profits thereof, and out of the same pay taxes and necessary repairs, so said property shall be kept from suffering -waste, using their judgment in said matter, and deducting such expenses and the expenses of the management of the same, the balance of such rents and profits they shall distribute among my said legatees, named in this item, in the same manner as provided for the distribution of the proceeds of the land when sold, and they will distribute such rents as they conveniently can after being received by them; provided, however, if my executors desire to use any part of the income of said farms to pay the annual sums to my wife named in the second item of this will they are directed to do so. ”
    It is plain from this provision of the will that the executors were vested not merely with a naked power to sell the land and distribute the proceeds, but that it was coupled with an interest in and control over the land itself. In the case of The Lessee of Boyd et al v. Joseph Talbert, 12th Ohio, 212, the first proposition of the syllabus is as follows:
    “If a testator bequeath to his wife all his estate., real, leasehold and personal, and all moneys and proceeds which may arise from the same, and direct his executors to lease certain premises, and after paying ground rents and taxes, pay the proceeds to his wife, the title to the premises is held by the executors. ’ ’

      And in the case of The Lessee -of Williams et al v. Veach el al, 17th Ohio, 171, the syllabus is as follows:
    “Where, in a will, the testator confers powers upon his executors, in form following: ‘Giving them full and. complete power as I myself possess, after my decease, to dispose of all my estate, real, personal and mixed, in the way and manner which they may think best calculated to carry into effect all all the purposes specified in this, my last will and testament, except that no part of my estate shall be sold at public sale,’ it is a power coupled with interest, and will be so construed, if the other parts of the will seem to require it, in order to carry out the intention of the testator.”
    The facts in the case before us bring it within the principle announced in these cases, all of which may be distinguished from the case of Eisner v. Fife, 32 Ohio St., 358, as pointed out by Day, J., at page 369. We think, therefore, that the executors were the owners of the land upon whom service of notice should be made under the statute.
    Was the. notice legally served upon the executors'? One of the executors resided in Indiana and the other upon the land assessed. There being no newspaper published in the village of St. Bernard, written notices of the resolution declaring the necessity of the improvement were posted in twelve (12) public places in the village, which is the only way provided by the section for service upon a non-resident. A proper notice in writing was left at the residence of the executor living in Ohio addressed to “Noah Babbs’ Ileirs,” but was in fact received by such executor, and by him submitted to his attorney. Notice should have been addressed to the executor, but having received a notice containing' all the facts required by the statute, and having submitted the same to his counsel, the executor received all the information required in the notice by the statute, and is bound thereby, as he had an opportunity to be heard and to protest or submit objections to the work if he so desired.
    A like decree to the one rendered by the court below may be entered in this court.

      William G. 'Roberts and David Davis, for plaintiffs.

      Samtwl B. Ilammel, for defendants.


text:
    IMPROPER JOINDER OF MASTER AND SUPERINTENDENT IN ACTION FOR WRONGFUL DEATH.
    [Circuit Court of Lucas County.]
    Robert V. French, Administrator, v. The Central Construction Company et al.
    Decided, June 16, 1906.

      Joinder of Parties—■Master and Superintendent can not T)e Joined, When—Misfeasance of Servant—Doctrine of Respondeat Superior —Election Between Parties—Einal Order—Pleading—Procedure— Dismissal—Sections 6707 and 5314.
    1. An order which determines the particular action pending is a final order, notwithstanding it does not determine the right of action involved.
    2. The wrongful death of a servant, due to the misfeasance of the superintendent under .whom he was employed, does not afford ground for a joint action against the superintendent and the master, hut may be made the basis of an action against the superintendent for his negligent act or against the master under the doctrine of respondeat superior; and where the action has been brought against both jointly, the plaintiff may be required to elect against which one the cause shall proceed.
    3. Where the master is a corporation, and has no office or place of business in the county where the tort occurred, and suit thereon has been brought against the master and superintendent jointly, and the evidence has disclosed that the liability is not joint, the master may be dismissed on its own motion, or the plaintiff may be required to elect as to which defendant he will proceed against, and in the event of his refusing to elect the action may be dismissed.
    Parker, J.; Haynes, J., and Wildman, J., concur.
    The action in the court below was by the plaintiff in error against tbe defendant in error, and was to recover on account of the death of the decedent, which was charged was caused by the negligence of the defendants. The issues were made np, and after evidence had been introduced on behalf of. the plaintiff and the plaintiff had rested his case, the following action was tfiken, fui set forth in the journal entries;

      ‘1 The plaintiff having introduced all his evidence, and having rested his case, the defendant, Edward S. Hatch, moved the court to require the plaintiff to elect as to whether he would prosecute this action against the said 'defendant Hatch, of against the defendant, the Central Construction Company.
    “Upon consideration of the said motion, the same was granted by the court and the plaintiff was ordered and directed to prosecute his action against either the defendant, Hatch, or- the defendant, the Central Construction Company, and was denied the right to prosecute the same jointly against the defendants hereto, to which action of the court the plaintiff then and there duly excepted, and with which order of the court the plaintiff then and- there refused to comply, and requested that the case be submitted to the jury,, which request was denied, to which the plaintiff excepted.
    ■ “Thereupon, by reason of the failure of the plaintiff to comply with the said order, the court withdrew a juror and dismissed this action. To all of which the plaintiff duly excepted.
    “This action is dismissed solely upon the refusal of the plaintiff to comply with the order of the court requiring him to elect which of said defendants he shall prosecute herein, and not upon the merits of the plaintiff’s cause of action.”
    Thereafter certain other steps were taken in the case in pursuance of an effort of the plaintiff to have a new trial and to obtain leave to file an amendment to his petition, which we need note particularly.
    Plaintiff in error complains of this action on the part of the court, but on behalf of the defendants in error it is contended that error does not lie to reverse an order of this kind; that it is an order made in pursuance of clause 5 of Section 5314 of the Revised Statutes, to-wit, “By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action”; that the dismissal is without prejudice, and is simply in the nature of a penalty for the disobedience of the court’s order in the premises, and is not such a final order or judgment as that error lies to it.
    Section 6707 provides that “an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment” is a final order which may be vacated, modified or reversed. We think that means an order which in effect determines the particular action pending, not an order which necessarily determines the right of action, and that when a court, against plaintiff’s protest, dismisses his action so as to prevent a judgment in that particular action, if the action of the court is not warranted by the law, its reversal may be obtained by. proceedings in error. Evans v. lies, -7 O. S., 233.
    It is agreed by counsel that the action of the court in requiring an election was based upon the opinion of the court that the cause of action stated in the petition was not joint as against the Central Construction Company and Edward S. Hatch, but was several as against one, or perhaps both. It is also agreed that the real purpose of the motion on behalf of defendants upon which the court made this order was to put the matter in such shape as that if the plaintiff should elect to proceed against the Central Construction Company, then a motion might be made to dismiss his cause as to that company, for the reason that the court had no jurisdiction over its person; at least, jurisdiction over its person had not been rightfully obtained. .
    The petition, and the record otherwise, discloses that the Central Construction Company is a corporation organized under the laws of the state of Ohio, having an office and place of business in Medina, Medina county, Ohio, and it is averred in the petition that it also has a place of doing business in Lucas county, Ohio. Mr. Hatch was a resident of Lucas county. Upon the petition being filed, a praecipe was filed for summons for each of the defendants, to be directed to the sheriff of Lucas county; also a summons for the Central Construction Company, to be directed to the sheriff of Medina county. Service was made upon Hatch in Lucas county, and upon the construction company, reading from the return, “by delivering to Edward S. Hatch, managing agent of said company, a true and certified copy of this writ with endorsements hereon. The president, chairman or president of the board of directors, cashier, treas. urer, secretary and clerk, and all other officers and agents of said company, could not be found by me in Lucas county, Ohio.” That is a part of the return upon the summons issued to the sheriff of Lucas county. It appears from the record that ■upon motion of the construction company this service was set aside, upon a showing that Hatch did not occupy this position in the company, and that the company did not have an office and place of business in Lucas county, Ohio. Thereupon summons was sent to the sheriff of Medina county, Ohio, and was served on the Central Construction Company there.
    As the petition stood, with the averment in it that the construction company had an office and place of doing business in Lucas county, Ohio, the construction company could not raise the question of jurisdiction over its person by demurrer to tbe petition, for tbe statute provides that a corporation may be sued in any county in the state where it has an office and place of doing business. So it appears that in order to present this question of jurisdiction the construction company was required to and did answer; and in the opening paragraph, it says this: “Now comes the Central Construction Company, one of the defendants herein, and protesting that this court has not obtained jurisdiction over the pei’son of the defendant, files this, its answer to the plaintiff’s petition herein.” Then follows its answer to the merits.
    It has seemed to the parties, and it is perhaps true, that it could not be made clearly manifest whether this was a joint cause of action or a several cause of action, until after the plaintiff’s case had been developed by the testimony introduced on his behalf. The court and counsel seem to have proceeded upon that theory, and therefore, after the evidence was all in, the action which I have mentioned respecting election was taken, with the purpose of presenting this question to the court.
    Now, it appears from the evidence that if the construction company was liable at all on account of the negligence charged against Hatch, it was so liable under tbe doctrine of respond-eat superior. Tbe construction company was building a bridge across the Maumee river at Grand Rapids, Ohio. Hatch, in the employ of the construction company, was superintending the building of the bridge. March was an employe of the construction company, and was at work upon the bridge. Hatch was his superior. By an alleged negligent act done by Hatch personally, or by his direction, or under his supervision, a part 9Í the apparatus which supported March while at work, was disarranged, and, as a consequence, March fell to the river on the rocks beneath and was killed. This the evidence at least tends to show. The construction company had not directed Hatch to do this particular thing. The construction company was not in the position of an employer who was present directing the particular act complained of. It was a corporation; it was abseht. The authority of Hatch and the directions to Hatch, were general, to superintend the work. So that I say it appears that if the construction company was liable at all it was liable under the doctrine of respondeat superior; because of the negligence of its servant, Hatch; and solely because of his misfeasance.
    Under such circumstances, as we understand the law as laid down by the Supreme Court of this state, the cause of action is not against Hatch and the construction company jointly. Assuming that what the eviden'ee tends to show is the true state of affairs, we are of • the opinion that it would constitute a cause of action against Hatch on account of his wrongful and negligent act, and also a cause of action against the construction company under the doctrine of respondeat superior, but not against them jointly. This we understand to be the doctrine of the case of Clark v. Fry, 8 O. S., 358. The question of whether this would constitute a cause of action against Hatch at all has been discussed, but we do not regard the decision of that question as being necessary here, though I have already intimated the opinion of the court upon it; that is, that this is not a mere non-feasance upon the part of Hatch, in which case there would be no cause of action against him in favor of the estate of March, but it is a misfeasance, accompanied by a physical act on the part of Hatch, resulting in the injury to March, and therefore, giving rise to a cause of action against Hatch.
    In the ease of Clark v. Fry, supra, Freeman was the employe of Clark in the digging of a cellar upon certain premises owned by Clark, and an area at the front thereof extending into the street. This excavation within the lines of the street was. not sufficiently guarded, and Fry, a pedestrian on the street, fell into the exavation and was injured. Fry brought action against both Clark and Freeman and judgment was obtained against both. Clark prosecuted error; the judgment against Freeman was allowed to stand without question. It did not appear in that case that Clark was personally present, directing the work being done by Freeman, and therefore, it appeared, and was held, that if Clark was liable at all, he was liable only under the doctrine of respondeat superior. In discussing the matter, Chief Justice Bartley has this to say, reading from page 377:
    “But whether the liability to the defendant in error, if any existed, attached to Freeman alone, or to Clark for the negligence of his servant or agent, or to Clark and Freeman, as joint tort feasors, depended upon a legal question arising upon the relation betwen Clark and Freeman in respect to the transaction alleged 'as the occasion of the injury. If the excavation had been ipso facto unlawful as • an unnecessary encroachment on the street, Clark and Freeman would have been liable, if any liability existed, jointly as wrong-doers. But if there was nothing in the work that Clark had required by the contract to be done which was in itself unlawful, or which', properly done, could be the occasion of an injury to anyone; and Freeman, wholly free from the control of Clark as to the manner of doing the work, had, by his own wrongful and negligent conduct, been the cause of the injury, he alone would be liable. If, however, Freeman, acting under the control and direction of Clark, as his servant or agent, had negligently and wrongfully allowed the excavation to be in an unfenced or otherwise dangerous condition, whereby the injury was sustained, Clark would be liable, although not jointly with Freeman. In this last instance supposed, either Clark or Freeman might be sued separately; vbut inasmuch as Clark, although he could not excuse himself on the ground that the nuisance had been occasioned by the negligence of Freeman, would have a right of action against Freeman for the recovery of such damages as he might be compelled to pay by reason of his negligence, he (Clark) could not be joined in the same action with Freeman. This doctrine was expi’essly ruled in Pan-sons v. Winchell, 59 Blass., 592; and it appears to rest upon a reason which is entirely satisfactory. ’ ’
    Judge Bartley does not mention what that reason is, but we have taken occasion to examine the case of Parsons v. Winchell, supra, and it seems to us that-the reason stated is one that had its foundation in the common law practice. Whether it obtains now seems to us doubtful, but the case of Clark v. Fry, supra, has not been overruled or questioned by our Supreme Court, and it has been followed by the lower courts of this state in a great many cases. We find one case reported, the case of Seelen v. Ryan, Cincinnati Superior Court Reports, at page 158, and it is cited with approval by the Circuit Court of the United States for the District of Kentucky, in the case of Warax v. '1'he Cincinnati, N. 0. & T. P. By. Co', el al, reported in 72 Federal Reporter, 637. The opinion in that ease is by Judge Taft. He says, in the course of the opinion, “The eases which support the view’that the master can not be joined as defendant in an action against his servant for negligence, where the master is not personally concerned in the ■ negligence, either by his presence or express direction, are as follows,” and then follows the citation of a number of cases, including the case of Clark v. Fry, supra.

    The syllabus in Warax v. Railway, supra, distinctly upholds the contention of counsel for the defendant in error. I read the second and third clauses:
    “2. When the engineer of a railroad train starts such train without giving warning, while he knows, or ought to know that a switchman is between the cars of the train engaged in coupling them, in consequence of which the switchman is injured, the engineer’s act is misfeasance, not non-feasance.
    “3. When the master is made liable for the negligence or wrongful act of his servant solely upon the ground of the relationship between them under the doctrine of respondeat superior, and not by reason of any personal share in the negligent or wrongful act by his presence or express direction, he is liable severally only and not jointly with the servant.”
    I go back now for a moment to quote from the opinion by Metcalf, J., in the casé of Parsons v. Winchcll, supra—the reason of the rule that though the parties may both be liable, they may not be sued jointly (page 593).
    “To1 maintain an action against two or more jointly, the plaintiff must show a joint cause of action. In an action ex delicto, the act complained of must be the joint act of all the defendants, either in fact or in legal intendment and effect, In trespass all are principals, and he who commands a trespass to be committed, though absent when it is committed, is regarded as. a trespasser and may be sued alone or jointly with him who obeyed his command. And it has been decided that where one of several-proprietors of a coach and horses acted as driver in the absence of the others and injured a third party by negligent driving, that he and the other proprietors were jointly liable to such party in an action on the case. Morton v. Hardern, 6 Dowl. & Rye, 275; and 4 Barn. & Cres., 223.
    “They were all held to be responsible for the conduct of the person whom they suffered to drive, whether he was one of themselves or their servant. But the act of a servant is not the act of the master, even in legal intendment or effect, unless the master previously directs or subsequently adopts it. In other cases he is liable for the acts of his servant, when liable at all, not as if the acts were done by himself, but because the law makes him answerable therefor. ‘He is liable,’ says Lord Kenyon, ‘to make a compensation for the damage consequential from his employing an unskillful or negligent servant.’ 1 East., 108. The servant also is answerable to the party injured by his acts done as servant, and is answerable to the master for any damages which the master is compelled to pay for his wrongful acts, unless those acts were directed by the master. But if a master and servant were jointly liable to an action like this, the judgment and execution would be against them jointly, as joint wrong-doers, and the master, if he alone should satisfy the execution, could not call on the servant for reimbursement nor even for contribution. Merry weather v. Mixan, 87 R., 186; Vose v. Grant, 15 Mass., 505, 521.”
    I repeat, whether that is so now, we are inclined to doubt. If the action should proceed against the master and his servant jointly and a joint judgment be rendered against them, and the master should satisfy, it and it should tarn out that the fault was that of the servant, that is, as between the master and the servant, the servant should answer to the master and make him whole. We are inclined to think that, under our practice, a joint judgment in a joint action against them would not be a bar to an action by the master against the servant to require him to make the master whole. Because it would have been a bar or would have prevented such action by the master against the servant under the common law methods of procedure is the reason, as we understand it, why the action against them jointly was not allowed to go forward.
    I speak of a ease where the recovery is on account of the wrongful act of the servant and the servant is liable because of his own act, and the master is liable solely because of the servant’s act. If, in a case of that kind, judgment should be rendered against both, and the master should satisfy it, the master ought to have an action against the servant to recover the whole amount—not contribution. This would not conflict with the doctrine that contribution between joint tort feasors can not be compelled. The servant has violated his duty to the master, whereby the master has been mulcted in 'damages, and the servant should relieve the master of all burden. But we suggest this simply as a question that has arisen in our minds in the case. We feel bound to adhere to the rule laid down by the .Supreme Court in the case of Cla/rk v. Fry, supra, until that court shall see fit to adopt a different rule.
    In the case of The American Bridge Company v. Hunt, in 130 Federal Reporter, page 304, Judge Lurton, delivering the opinion of the Circuit Court of Appeals, Sixth Circuit, calls attention to the fact that there is a difference of opinion upon this question among the courts of the country. I quote:
    “Whether there is such legal identity of master and servant or concert between them as to justify a joint action when the act or negligence charged is that of the servant alone, and the liability of the master is bottomed not upon any immediate fault of the master, but upon the liability of the latter for the negligent acts of the servant, may admit of much discussion. ’ ’
    ITe then proceeds to cite the Warax ease found in the 72 Federal Reporter, and a number of other cases in support of the rule that they may not be sued jointly, and then says:
    “It must be confessed, however, that the doctrine of the common law with reference to the joinder of master and servant in one suit based alone upon the tort of the servant, as in the Warax case and other eases cited above, is shaken by contrary intimations found in Powers v. Chesapeake, etc., By. Co., 169 U. S., 92-97 (18 Sup. Ct., 264; 42 L. Ed., 673).; and Chesapeake & Ohio B. B. Co. v. Dixon, 179 U. S., 131-137 (21 Sup. Ct., 67; 45 L. EcL, 121). This question, though a nice one, and not foreclosed by authoritative decision, does not necessarily arise upon this transcript as we construe the averments of plaintiff’s petition. ”
    So nothing was decided upon that point in that case. I call attention to it to show that it seems to be regarded in some courts as still an open or debatable question. Counsel cite other authorities indicating the same thing.
    The practice pursued in this case in the court of common pleas is not familiar to us, but we can not see why it was not appropriate and right. "We suppose that the same results might have been reached in other ways, but that is not important. We can not see why, when this evidence came in, the construction company might not have been dismissed from the ease at once upon its own motion. It appearing that it was not jointly liable with Hatch and that it did not have an office or place of business in this county; but it is perhaps immaterial which course was pursued. I think the course pursued was one that was as favorable as possible to the plaintiff in error here. Perhaps the court below might have gone further; certainly it could have done so under the common law practice. It- could have' at once dismissed the case as to both without saying anything about election, upon the ground that there was a joint cause of action stated .and improperly prosecuted, against two defendants, and no attempt to prosecute a several cause of action against either. But the court, as I say, took the course most favorable to plaintiff in error. It gave him an opportunity to amend by dropping one of the parties and proceeding against the other, and gave him his election as to which he would drop out, and which he would proceed against. But the plaintiff did not choose to avail himself of this opportunity. He insisted upon his right to proceed against both as upon a joint cause of action. We think the court was right in requiring him to proceed against one only, and it is conceded by counsel for plaintiff in error that if the court was right in its ruling upon this question, it follows that the court was right in its further action of dismissing the action as to both, because of non-compliance by the plaintiff in error with its order in the premises; and we are of the opinion that there was nothing else left for the court to do.

      Having made that order respecting election, if it was not obeyed, the court could not well do anything else but dismiss the action and refuse to allow the plaintiff to proceed with his action against both; and this order of dismissal, we think, is justified by the fact that the court was correct in its ruling that it was not a joint cause of action—not one against which the defendants could be required to answer jointly. The judgment of the court of common pleas will be affirmed.

      G. A. Thatcher, for plaintiff in error.

      Smith & Baker' and W. II. McLellan, Jr., for defendants in error.


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    ESTOPPEL AS TO COLLECTION OF STREET ASSESSMENTS.
    [Circuit Court of Hamilton County.]
    Isabella M. Bell v. The City of Norwood et al.
    Decided, March 10, 1906.

      Assessments'—lor Street Improvement—Bar of the Statute as to Collection of—Reservation in Deed as to Payment of—Estoppel— Burden of Proof.

    1. The bar of the statute against a municipality as to the collection of a street assessment, levied prior to the act of April 25, 1904, does not begin to run on the several installments until each of said installments becomes due and payable.
    2. The burden of proving an estoppel against a property owner as to a street assessment is upon the treasurer seeking to enforce the collection. ,

    3. The intention of a grantor and grantee as expressed in the recital in the covenant of -warranty, “except maturing street assessments on Floral avenue which the grantee assumes and agrees to pay,” is construed in this case to be that the grantor was to be relieved from any liability on account of said assessment, and not that the contract should inure to the benefit of the municipality.
    Jelkb, P. J.; Swing, J., and Giffen, J., concur.
    Prior to the act of April 25th, 1904 (97th O. L., 403), whatever statute of limitation ran in favor of the property owner and against the municipality did not begin to run until each of the several installments became due. Whatever bar may' op-crate as between the property owner and the municipality, must begin to run from the same date. While the assessment became a lien from the time the ordinance was passed, yet the statute did not begin to run on the several assessments until they became due and payable, like the postponed payments provided for in a mortgage.
    We are therefore of the opinion that the plaintiff is barred from maintaining her action as to the first installment of said assessment, but that she may maintain the same as against all subsequent installments.
    • It is contended by the county treasurer in the interest of and on behalf of the city of Norwood, that the plaintiff herein is estopped from contesting the assessment on Floral avenue because the deed contains in the covenant of warranty, the following sentence: “Except maturing street assessments on Floral
    avenue which the grantee assumes and agrees to pay.” This is all the evidence we have before us. The question arises whether the rule laid down in the case of Caldwell v. Columbus, 37th Weekly Law Bulletin, 270, affirmed in the 56th O. S., 759, or the rule laid down in Walsh et al v. Sims, Treasurer, 65 0. S., 211, applies. It turns upon the question of fact as to whether or not there was an allowance of a definite sum made to the grantee as part of the consideration. Of course if the grantee has been allowed a sum certain, and has practically been a depository, or trustee, of such sum for the payment of the assessment on Floral avenue, it makes no difference to the grantee whether such assessment is legal or illegal. On the other hand, if there has been no such allowance to the grantee, and this exception, of the covenant warranty is to be considered merely as a contract between the grantor and grantee that grantor shall be relieved from any assessment, then grantee is not estopped from setting up and availing himself of the illegality of any assessment.
    This court has heretofore held that the Floral avenue assessment is illegal and void, and the Supreme Court has sustained this conclusion. The burden of proving the estoppel against the property owner is upon the treasurer. Looking then to this deed, and in the absence of other testimony, we find that the intention of the contracting parties was that tbe grantor was to be relieved of any liability on the warranty on account of this Floral avenue assessment, but it was not intended to make a contract which should inure to tbe benefit of the city of Norwood or make the grantee the custodian of a definite sum of money for the payment of this assessenmt.
    We therefore find on the equities for the plaintiff, and a decree may be had accordingly.

      W. li. Collins and L. F. Hanger, for plaintiff.

      Oliver G. Bailey, contra.


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    REQUIREMENTS AS TO BUILDING PERMITS.
    [Circuit Court of Lucas County.]
    The City of Toledo v. George J. Kiebler.
    Decided, March 4, 1905.

      Building Ordinances—Requirements as to Securing Permits—Prosecution of Contractor for Failure so to Do—Defective Affidavit—Validity of Ordinance—Policy of the Courts.

    1. It is an established rule of courts that the question of the constitutionality of a statute or the validity of an ordinance will not he determined, unless a case is presented which makes such determination necessary,
    2. An affidavit which charges a contractor with proceeding to erect a building without first having obtained the required permit from the building inspector is insufficient upon which to base a conviction, where the requirement of the ordinance is that such a permit shall be taken out by either the owner of the building or the contractor, and the affidavit does not state that the owner had also failed to take out a permit.
    Hull, J., TIaynes, J., and Parker, J., concur.
    The defendant in error—who was also defendant below—was prosecuted in the police court of this city for violating & section of the building ordiiiiiupos of. the city Toledo.

      By an ordinance of the council of this city, a building department was established and provisions were made for a building inspector and provisions with regard to the obtaining of permits for the erection of buildings of any kind, and a penalty imposed of fine and imprisonment for violation of this ordinance. The permit requires a fee, from a minimum of two dollars up to one thousand dollars, being at the rate of two dollars a thousand and not to exceed one thousand dollars. It was charged in the affidavit that Kiebler, being the agent and contractor of one Maude Mitchell—who was the owner—erected a building in this city without said Kiebler obtaining a permit therefor, as required by the ordinance. Walter C. Hudson was at the time the inspector and made the affidavit. A demurrer was filed to the affidavit, which was sustained, and defendant was discharged by the police court. The case was taken to the court of common pleas on error and the judgment of the police court was affirmed. Error was then prosecuted to this court.
    •It is claimed by the defendant in error that, for various reasons, the action of the police court was correct. It is claimed that the legislation on this subject was invalid and unconstitutional. It is claimed further, that Hudson was never properly appointed or selected as building inspector, and this seems to have been the ground on which the police court sustained the demurrer to the affidavit. Other grounds were urged, as I have said, and the court of common pleas found the affidavit invalid, on various grounds. It is claimed that the city has no power, under the statutes of the state, to pass such an ordinance; that while it has the power to regulate the erection of buildings, it has no power to impose a fee, and to require the owners to pay a fee for the securing of a permit to erect buildings upon their own property. And it is claimed further that the provision requiring the payment of a fee for such purpose is unconstitutional and in conflict with the Bill of Rights, as interfering with-the right of private property.
    The ease as argued presents many interesting' questions. In the view that we take of it, however, it is not necessary or proper for'hs to consider these questions as to the validity or constitutionality of this ordinance relating1 to buildings. We have reached the conclusion that the affidavit is fatally defective, regardless of the ordinance; although the ordinance may be valid in every respect and the officer properly appointed, in our judgment the affidavit does not charge an offense, and it not being1 necessary to do so, it would not be proper for us to undertake to determine the validity of the ordinance. .It is a well established and universal rule of courts that the constitutionality of a statute or the validity of an ordinance will not be passed upon by the court unless it is necessary—until a case is brought before the' court that makes it necessary to pass upon such questions.
    The affidavit charges that Maude Mitchell was the owner of this property; that “the defendant being then and there a contractor for and agent of one Maude Mitchell did unlawfully proceed with the erection of a certain building located on Park-wood avenue in the city of Toledo, Lucas county, Ohio, of which building the said Maude Mitchell was then and there the owner, without he, the said George Kiebler, having first obtained from the inspector of buildings of said city of Toledo, Ohio, a permit for sirch erection,”1 etc. The affidavit charges that Maude Mitchell was the owner of the building and that Kiebler was the agent and contractor for her; that he proceeded to the erection of said building “without him, the said George Kiebler, having-first obtained from the inspector of buildings a permit.”
    Section 1 of the ordinance requires either the owner or the agent -to procure a permit to erect a building.
    ‘ ‘ A permit for such erection or alteration or the undermining of any such sidewalk shall be first obtained from the inspector of buildings by the owner or his agent, and it shall be unlawful to proceed with the erection or alteration of any building1, or part of any building, or any such platform, staging or flooring, or the undermining of any sidewalk in the city of Toledo, unless such permit shall first have been obtained from the inspector of -buildings. ”
    So as appears from the ordinance the permit may be obtained either by the agent or by the owner. In most cases, it probably would be obtained by -the owner, and if the owner has obtained a permit, of course it is not necessary for the agent or contractor to clo so—only one is required, and to charge this offense against Kiebler as agent and contractor, the negative allegation should be made in the affidavit that no permit had been obtained by the owner. For aught that appears in the affidavit here, the owner may have obtained a permit and Kiebler may have had it in his pocket at the time he began the erection of and while erecting this building. It is very clear to us that this affidavit does not charge an offense under this ordinance. It does not charge a violation of the ordinance for the reasons stated, and it would be improper for us to consider these other questions when no offense whatever has been charged under the ordinance as it stands. The only question for us- to determine is, whether the action of the police court was correct in discharging Kiebler and whether the judgment of the court of common pleas sustaining the demurrer should be affirmed.
    It is clear that the judgments of the lower courts were correct and they should be and are affirmed.

      0. G. .Denman, Charles K. Friedman and Charles W. Meek, for plaintiff in error.

      Chitíenden c@ Chittenden, for defendant in error.