text:
    BUILDING RESTRICTIONS.
    [Cuyahoga (8th) Circuit Court,
    June 10, 1912.)
    Marvin, Niman and Shields, JJ.
    (Judge Shields of Fifth Circuit Sitting in Place of Judge Winch.)
    Mary Dean Snyder et al. v. Lakewood Land & Improvement Co.
    Violation of Restriction as to Value of Improvements to Be Made.
    A restriction in the deed of certain premises that “no house shall be erected upon said premises at a less cost than $3,500,” is violated by moving a barn upon the lot and converting the same into a house, the building after all alterations and repairs being of less value than $3,500.
    Error.
   NIMAN, J.

This proceeding in error had its inception in an action brought in the court of common pleas by the. defendant in error, the Lakewood Land & Improvement Company, against the plaintiffs in error, Mary Dean Snider and F. E. Snyder, to enjoin, said defendants from violating a building restriction. The judgment in the court below was for the plaintiff. The defendants filed a motion for a new trial, which was overruled and they are here seeking a reversal of the judgment of the court below:

Briefly stated, the facts are as follows: the Lakewood Land & Improvement Co: is the owner of an allotment of real estate in the city of Lakewood, known as the Belle avenne allotment which contains 134 lots, some of which front on Madison, avenue, some upon Belle avenue, and-. some upon Detroit avenue. All the lots in the allotment, except those fronting on Detroit avenue, are subject to the uniform restrictions. On or about August 14, 1911, the plaintiff in error, Mary Dean Snyder, purchased on a land contract one of the lots in said allotment fronting on Madison avenue. In. the contract the same restrictions were imposed upon the lot purchased' as attach to the other lots in the allotment except those on Detroit avenue. That part of the .restrictions necessary to be noticed here is as follows:

“No house shall be erected upon said premises at a less cost than $3,500 and shall be set back from the street line a distance of not less than 45 feet.”

At the time of the purchase of this lot by the said Mary Dean. Snyder, there stood partly upon the lot purchased by her and partly upon another lot, a barn, which by the terms of the purchase went with the lot. After the contract was executed, the plaintiff in error moved the barn on to the lot purchased by them, and, having made various alterations and repairs, moved into the same and occupied it as a place of residence. The build-ing after alterations and repairs is admittedly of a less value than $3,500.

The question here to be decided is: Whether or not the restriction that “no house shall be erected upon said premises at a less cost than $3,500” has been violated by the fitting up of this bam as a place of residence and the living therein by the plaintiffs in error.

It is contended upon behalf of the plaintiffs in error that there has been no erection upon said premises of a house costing less than $3,500, and that the occupancy of this barn, which is claimed to be temporary only, does not violate the restriction.

The effect, however, of the converting of this barn into a dwelling-house upon the other lots sold by the defendant in error and upon the lots retained by it, is the same as though a new building of the same character and value had been erected and, in our opinion, there has been a plain violation of the restriction imposed upon, this lot. The purpose of this restriction was to obtain uniformity in the character of buildings erected in the allotment and preserve the appearance and enhance the value of all the lots in the allotment as a desirable and attractive place for the establishment of homes. This purpose would be defeated, in part at least, if the plaintiffs in error were permitted to continue in the use of this bam as a place in which to live. They had a right to move the barn entirely on to the lot under the contract, but when they proceeded to convert it into a house, they violated the restriction, as much as though they had erected an entirely new house of equivalent value.

The court below, therefore, committed no error in granting a perpetual injunction as prayed for in the petition, b.ut in our opinion the judgment of the court below should be modified to such an extent as to give the plaintiffs in error a reasonable time to make preparation for another place of residence, and the judgment of the court below will be so modified as to give the plaintiffs in error until September 15, 1912, to permanently vacate said structure and abandon the same as a dwelling-house. The judgment, as so modified, will then be affirmed.

Marvin and Shields, JJ., concur.


source: Caselaw Access Project

author: RICHARDS, J.

license: Public Domain

text:
    FALSE IMPRISONMENT — LARCENY.
    [Lucas (6th) Circuit Court,
    December 9, 1911.]
    Wildman, Richards and Kinkade, JJ.
    Edward R. Sly et al v. Ogle O. Robinson.
    1. Taking Purchase from Store, Sold as Cash Transaction, Is Larceny.
    It is larceny if a person engaged in a cash purchase take away from a store, over the protest of those in charge, and convert to her own use goods which have not been paid for and which have been purchased under circumstances which led the clerk to believe it was to be a cash transaction.
    2. Justice of Peace Issuing Warrant in Larceny Describing Thing Taken as Merchandise Not Liable for False Imprisonment.
    An affidavit for arrest for larceny is loosely drawn where the thing taken is described only as “merchandise,” but a justice of the peace acting in good faith in the issuing of a warrant upon such an affidavit is not liable to an action for false imprisonment.

      3. Attorney Fees as Element of Damages in False Imprisonment.
    An instruction to tbe jury in an action for false imprisonment that they may, if they choose, include attorney’s fees as a part of the compensatory damages, is erroneous where the qualification is not added that such an award can only be based on a finding that the defendant acted through fraud or malice or for purpose of insult. -
    Error.

      L. M. Murphy and B. F. Ritchie, for plaintiffs in error.

      Files & Faxon, for defendant in error.
   RICHARDS, J.

This is a proceeding in error to reverse a judgment rendered in the common, pleas court, Mrs. Ogle Robinson, who was plaintiff in the common pleas court, brought an action against Edward R. Sly, L. W. Black and Henry S. Bradley to recover damages for false imprisonment. Sly was a justice of the peace at Whitehouse in this country, and Henry S. Bradley was constable, and L. W. BlaTck was' engaged in. the mercantile business at that village. Mrs. Robinson was a tenant of Black and had voluntarily turned out to him on account of rent which she owed a certain rug. and a chair. It developed later that the rug was of sufficient value to pay the rent due so that Black held the chair thereafter, subject to her order, with the information that it might be sold to.one Demuth. The chair was valued by the parties at $7.50.

While it so remained in the possession of Black, Mrs. Robinson and her sister conceived the plan of securing from the store conducted by Black a sufficient amount of dry goods to equal the value of the chair and to compel Black to retain the chair as owner in payment for the dry goods so to be obtained by her. Thereupon, she wrote the following note:

Mr. Black : I will just take the goods in payment for that chair if you want it so bad. If you had not told me Mr. Demuth wanted it, I would have brought it up home when I moved. Hereafter when anybody is square with you, go thou and do likewise.
“Sincerely yours,
“Ogle Overmyer Robinson.”

The same evening that this note was written Mrs. Robinson and her sister and one Helstern took the note to Black’s store in Whitehouse. Mrs. Robinson fearing that she would be identified and unable to carry- out the scheme, sent her sister into the store with Helstern. The sister ordered of the. clerk, who was a son of Black, certain dry goods designated by Mrs. Black, being careful to see that the value did not exceed $7.50; the actual value of the goods so ordered being $7.42. When the goods were wrapped up she threw on the counter the note written by Mrs. Robinson to Black and proceeded to depart with the goods. The clerk undertook to prevent her carrying'away the goods without paying for them but she held on to the goods and departed. The clerk followed them to the door and said in the presence and hearing of Mrs. Robinson that they, would all- be arrested for taking the goods. Thereupon L. W. Black went to the justice of the peace, E. R. Sly, and informed him fully of all the facts and Mr. Sly drew an affidavit which was signed and sworn to by Black in which it is charged as follows:

‘ ‘ That Ogle Robinson and unknown man and woman on or about the 227th day of September, 1909, at the county of Lucas, did unlawfully steal, take and carry away merchandise to the value of seven dollars and forty-two cents, the property of the saidL. W. Black.”

Upon the filing of this affidavit with the justice he issued a warrant directed to any constable of the county reciting substantially the language of the affidavit and commanding the arrest of the parties. Constable Bradley reached the home of Mrs. Robinson not long after she and her sister arrived there and arrested them and Helstern, and detained Mrs. Robinson and her sister at his own residence in Whitehouse until the following morning, when he took them before a justice of the peace.

The foregoing facts are not controverted by any of the parties to the transaction. When the parties reached the office of the justice of the peace the defendants were arraigned and the affidavit read to them. Mrs. Robinson testified that she then stated to the justice of the peace that she took the goods but did not steal them. The justice treated her statement as a plea of guilty and proceeded to sentence the defendants. He, however, suspended the sentence, except the costs, which were subsequently paid by Mrs. Robinson’s mother.

The trial in the common pleas court resulted in a verdict of $550 against all of the defendant's and in favor of Mrs. Robinson; that court, however, granted Black a new trial and the plaintiff being required so to do remitted $200 from the verdict against the other defendants, and judgment was rendered accordingly.

We are unanimously of the opinion that the transaction as testified to by Mrs. Robinson herself, constitutes the offense of larceny. The authorities are quite uniform and are collected in 25 Cye., 25. The rule as so stated is:

“Where parties are enaged in a cash sale, the whole transaction is incomplete until the payment is completed, and pas-session of the goods remains in the seller and that of the money in the buyer until they are simultaneously exchanged. If in such case the buyer gets control of the goods and makes off with them without paying for them, he is guilty of larceny. And conversely, if the seller gets the money and refuses to give up the goods, it is larceny.”

I cite also Hildebrand v. People, 56 N. Y., 394. The rule just mentioned is peculiarly applicable in Ohio in view of the language of our uniform sales law as contained in Sec. 8422, G. C.

It is strenuously insisted in argument that the affidavit which undertook to charge larceny is' wholly, insufficient for that purpose and was so defective that the justice acquired no jurisdiction to issue the warrant. This contention is based largely upon the decision of our Supreme Court in Redmond v. State, 35 Ohio St. 81, in which “a certain lot of dry goods” was held to be an insufficient description when the indictment is assailed by a demurrer.

We need not determine in this case whether this affidavit would or would not be vulnerable if so assailed. The only question we have here, so far as the affidavit is concerned, is whether it is absolutely void or whether is was sufficient in form to give the justice jurisdiction. It must be remembered that the justee of the peace had jurisdiction generally over this class of offenses as an examining magistrate, and that in the exercise of that jurisdiction he held the affidavit sufficient. While not recommending the charging of offenses in such general language as is used in this affidavit in employing the word “merchandise, ’ ’ yet we are clearly of the opinion that under the circumstances in this case the justice of the peace had jurisdiction, and if acting in good faith would not be liable in an action for false imprisonment. This rule has been laid down in many cases and we can only stop to cite a few: Gardner v. Couch, 137 Mich., 358, [100 N. W. 673; 101 N. W. 802; 109 Am. St. 684]; Smith v Jones, 16 S. Dak., 337, [92 N. W. 1084] ; Rush v. Buckley, 100 Me. 322 [61 Atl. 774; 70 L. R. A. 464].

On the trial of the case in the common pleas court the judge directed a verdict in favor of the plaintiff, leaving to the jury the assessment of damages only. For the reasons given, this action of the trial court was erroneous. In charging the jury the trial court instructed them that they might, if they chose, include as a part of the compensatory damages, attorneys’ fees. This instruction was given to the jury without any qualification that attorneys’ fees could only be allowed in the event that it appears in the ease that the defendants had acted maliciously. It has, however, been the rule in Ohio as laid down in Roberts v. Mason, 10 Ohio St. 278, Diehl v. Friester, 37 Ohio St. 473, 478, and United Power v. Matheny, 81 Ohio St. 204, [90 N. E. 154, 28 L. R. A. (N. S.) 761], that attorneys’ fees may be included in actions of this kind as a portion of the compensatory damages, but that it can only be so done when it appears that the defendants have acted through fraud, malice or insult.

As a result of a careful examination of the record, we are all of the opinion that the verdict is not sustained by the evidence. For the errors indicated the judgment will be reversed and the cause remanded.

Wildman and Kinkade, JJ., concur.


author: NIMAN, J.

text:
    NEGLIGENCE — STREET RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    June 10, 1912.]
    Marvin, Winch and Niman, JJ.
    W. R. Smillie v. Cleveland Ry.
    1. Correct Concrete Rule Applicable to Facts In Particular Case.
    In a personal injury damage case if a correct concrete rule of conduct applicable to the facts of the particular case is given in charge to the jury, it is of np importance whether the observance of the rule is ascribed to the exercise of reasonable care or of the highest degree of care.
    2. Assumption of Risk in Attempting to Board Moving Car.
    In an action for damages for injuries resulting from negligently starting a car which plaintiff was about to board as a passenger, it is proper to charge that one who undertakes to get on a moving car, assumes such risks as are incident thereto, and if injured thereby can not recover.
    Error.

      A. W. Lawson, for plaintiff in error.

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

The action in the court below was for the recovery of damages on account of injuries claimed to have been sustained by the plaintiff in being thrown or jerked from the step of a street car operated by servants of the defendant, as he was mounting the platform of the car.

The verdict was for the defendant and the plaintiff in error seeks by this proceeding to reverse the judgment rendered thereon, after the overruling of his motion for a new trial.

The errors complained of relate to the charge of the trial court to the jury. Not all the evidence is before us, but only so much as counsel for the plaintiff in error considered necessary to disclose the alleged errors in the charge.

The petition charged that the car on which the plaintiff attempted to get, had come to a full stop for the purpose of receiving the plaintiff and other passengers, and while the plaintiff was in the act of boarding the car, it was started suddenly forward with a great jerk, with such force and violence that it threw the plaintiff backward and over and around the rear of the car and thereby broke his hold from the same and threw him to the ground.

From such evidence as is before us, and from the charge of the jury, however, it appears that the ear had not come to a full stop, and the case was tried and presented to the jury upon the theory that the car had not fully stopped when the plaintiff attempted 'to get on.

One portion of the charge claimed to be erroneous is in the following language:

“And this brings .me to the duty of the defendant company in this instance, and the correlative duty of the plaintiff, for the right to recover fop-injuries received must rest upon the fact that the defendant violated some duty it owed to the plaintiff. The duty of the defendant in this respect to the plaintiff was, if it stopped the car or brought it to such a slow rate of speed as to be an invitation for the plaintiff to board, or attempt' to board the ear, then it was the duty of the defendant, in the exercise of reasonable care, to keep the car in that condition long enough so that the plaintiff, in the exercise of reasonable care, might with safety board the car.”

One objection urged against this part of the charge is that it might and did lead the jury to believe that after holding the car the length of time sufficient to permit the plaintiff, with ordinary care, to get safely on the car, without regard to any position of danger he might be in at the time, it would not be negligence to start the ear and throw him off.

If the evidence were such as toshow .knowledge of a dangerous position on the part of the plaintiff, chargeable to those operating the car, this argument would have greater weight than in this case, with such evidence as is before us. We do not think the jury could have been misled in the manner suggested by the language quoted.

Another objection to this part of the charge, in connection with other language in which the court defined negligence, is that the duty of the defendant company toward the plaintiff, and the degree of care required of the defendant are not correctly stated.

The definition of “negligence,” to which exception is taken, follows the court’s instructions concerning what acts of the plaintiff could render him guilty of negligence so as to defeat any recovery. The language of the definition is as follows:

“I have used the words ‘negligence’ and ‘negligently.’
“Now, ‘negligence’ means simply the want of ordinary care under the circumstances surrounding that particular case and the transaction in question, and ‘negligently’ simply means doing an act in such a manner that it lacks the care which men of ordinary prudence and foresight use in their everyday affairs of life under the same or similar circumstances.”

This definition, immediately following the court’s discussion of what would be negligence in the plaintiff, refers to that negligence and is a correct definition.

Even if this were not so, the court, in the other part of the charge first quoted, in clear terms instructed the jury, that it was the duty of the defendant, if it stopped the car, or brought it to such a slow rate of speed as to be an invitation for the plaintiff to board, or attempt to board the ear, to keep the car in that condition long enough so that the plaintiff, in the exercise of reasonable care, might with safety board the car.

This instruction was a correct statement of the defendant’s duty toward the plaintiff, and the inclusion of the words “in the exercise of reasonable care,” does not in any way modify the duty as charged.

If a correct concrete rule of conduct is laid down to govern the particular case, it is of no importance whether the observance of the rule is ascribed to the exercise of reasonable care or the highest degrees of care. The jury were properly instructed on the subject of the defendant’s duty toward the plaintiff, and the exercise of the highest degree of care by the defendant required the observance of no other or greater duty than that laid down by the trial court in the instructions under consideration. There was therefore no error in this regard.

Complaint is also made of the instructions to the jury on the subject of the effect of the act of one who attempts to get on a moving car.

On. this subject the court said:

‘‘ The fact that a ear does not stop at a regular stop is not an act of negligence upon which recovery can be had, and if one undertakes to get on a moving ear, he assumes such risks as are incident thereto, and if he is injured, he can not recover. ’ ’

Again the court said:

‘ ‘ So if the plaintiff has failed to prove by a preponderance of the evidence that this car, at this time after it came around the comer at Bast 9th street and Prospect avenue, slowed down to a standstill or to such a slow rate of speed that one standing there ready to get on the car would, in the exercise of ordinary care, reasonably have supposed that the car was stopped or just on the point of stopping, for the purpose of letting him on, or in other words, inviting him to get on the car, he can not recover, and your verdict must be for the defendant.”

■ In one of the requests of the defendant given by the court, it was said:

“If you find that the car was going at the rate of from four to five miles an hour at the time the plaintiff attempted to board the same, there can be no recovery in this case and your verdict must be for the defendant.”

The objection urged against these instructions is that they leave out the question of negligence on the part of the defendant and the question of proximate cause.

Both the defendant’s negligence and the subject of proximate cause are, however, dealt with in other parts of the charge. The instructions embody correct principles of law and must be read in connection with what was said by the court in other places on the subjects mentioned. They are sustained by the Ohio Central Trac. Co. v. Mateer, 31 O. C. C. 478 (12 N. S. 327) affirmed, no opinion, Mateer v. Ohio Central Trac. Co., 81 Ohio St. 494, where it was held:

“A judgment for damages in favor of an intending passenger who was injured in an attempt to board a ear is not supported by the evidence, where it appears that the attempt to board the car was made and the injury occurred before the car had been brought to a standstill. ’ ’

The charge in this case considered as a whole, in our. opinion,, properly instructed the jury as to the rights and duties of the parties to the action, and correctly stated the law applicable to the facts.

We find no error in the record prejudicial to the plaintiff in error, and the judgment of the court of common pleas is affirmed.

Marvin, J., concurs.

Winch, J., not sitting.


author: MARVIN, J.

text:
    FRAUDULENT REPRESENTATIONS.
    [Summit (8th) Circuit Court,
    April 15, 1912.]
    Marvin, Winch and Niman, JJ.
    J. B. Waight v. J. F. Adamson and T. H. Clark.
    Knowledge of Plaintiff as to Falsity and Acquiescence in Making Them.
    In an action on a bond when a defense is that the defendant was induced to sign the bond by reason of false statements made by plaintiff or by another with his knowledge and acquiescence, it is error to charge the jury that in order to make good his defense the defendant must prove not only that the statements were made, were false, were believed and acted upon by the defendant, but also that the plaintiff at the time he made them or acquiesced in their being made, knew them to be false.
    Error.
   MARVIN, J.

The issues in this case are admirably stated in the charge made on the trial in the court of common pleas.

From this charge we read:

“This action is against the defendants to recover the sum of $1,531.63 on a certain bond, wh'ich is in evidence in this case, which was given to secure the performance by the defendant Clark of the terms of a contract of sale made between the plaintiff and said Clark.
“This contract is also in evidence. The defendant Clark, though duly served with process, has failed to answer or otherwise plead, and has thereby confessed the truth of plaintiff’s allegations so far as he is concerned, and your verdict will necessarily be for plaintiff as against Clark.
“The defendant Waight admits the execution of the bond, but defends against liability therein upon two grounds, namely:
“1. That the bond was put into the custody of Clark upon the express stipulation and condition that it was not to be delivered to plaintiff until certain parties had been secured by contract to put the capital into the business in which Clark and the plaintiff were then engaged, necessary to run the same, otherwise Clark was to hold the bond and destroy the same or return it to Waight, and the plaintiff knew of these stipulations and conditions and received the bond when Clark wrongfully and without right and authority delivered the same to him.
‘ ‘ 2. That he was inducted to execute said bond by the false representations and statements made by plaintiff and said Clark, as to the condition of the business then conducted by them their assets, debts and profits.
“Now, the admissions in the pleadings and undisputed facts show that plaintiff and Clark were carrying on a lumber and coal business in Akdon as partners under the name of the Peoples Lumber & Coal Company; that on August 27, 1910, Clark bought the plaintiff’s interest in said partnership and said purchase was evidenced by the written bill of sale and contract in evidence; that by said agreement Clark was to pay plaintiff $1,351.63 on or before September 12, 1910, to assume and pay the liabilities of the firm, except one debt especially mentioned, and to furnish a bond to secure the performance of his part of that contract of sale; that the bond in evidence in this case was delivered by Clark to the plaintiff.
“Among other things the bond, by its terms, bound the two signers thereof, the defendants in this cause, to the payment of the said $1,351.63.
‘‘ The admission of the execution of the bond and the plea of the defendant Waight of avoidance of liability thereunder, puts the burden upon him of showing by a preponderance of the evidence that he is not liable for the reasons alleged in his answer.”

This is followed in the charge by a true statement of the law as to the first defense.

As to the second defense, the court used this language:

“Under the second defense, in order to avoid liability it has been essential that the defendant Waight shall have proven by a preponderance of the evidence, that plaintiff made false statements and representations, or allowed Clark to make them to defendant in his presence and with his acquiescence and consent, as to the condition of the business being conducted by them under the firm name of the Peoples Lumber & Coal Company, their debts, assets, profits and other matters affecting the financial condition of the firm and its members, that there were material facts bearing directly upon the transaction culminating ultimately in the giving of the bond in question, that plaintiff knew the statements to be false, that defendant Waight believed the statements and representations to be true and acted upon them, and that the plaintiff made the representations with intent that they should be acted upon, or acquiesced in and consented to the making of the same by Clark, with intent that Waight should act upon them. Failing to prove these by a preponderance of the evidence, defendant Waight must fail on his second defense. If he has established them by a preponderance of the evidence, then upon that defense you should not return a verdict against Waight.”

Again the court said:

“There is fradulent intent if a man, either with a view of benefitting himself or misleading another into a course of action, makes a representation which he knows is false or does not believe to be true.”

' We regard this part of the charge as containing error prejudicial- to the plaintiff in error. •

The evidence tended to show that Adamson knew what the statements contained in the contract, attached to the bond, were. Indeed, when he accepted the bond, he accepted it with the contract attached — the contract signed by both himself and Mr. Clark — and he knew, therefore, at the time he accepted the bond, what representations had been made to Clark as to the property which Clark was buying and the indebtedness of the company which was being assumed by Clark. If these representations as contained in that contract were not true, even though Adamson did not know that they, were not true, if they were relied on by Waight and he was induced by them to sign the bond, which he would not have signed but for such representations, he was entitled to his second defense. This is borne out by the ease of Mulvey v. King, 39 Ohio St. 491. The syllabus reads:

“Where a person by means of false representations of facts materially affecting the identity and value of certain real estate, induces another to enter into a contract for the purchase thereof, upon the faith of such representations, and upon which he was justified in relying, the purchaser may, in an action brought by the vendor for the purchase price, recoup the damages which he has sustained by reason of such false representations, although the vendor believed them to be true when made, and had good reason for so believing.”

Judge Upson, in the opinion in this case at pages 594 and 595, uses this language:

“It may be considered as well settled in this state by the cases above cited, that an action for damages caused by misrepresentation can not ordinarily be maintained, without proof of actual fraud, or such gross negligence as amounts to fraud. When, however, a person claims the benefit of a contract into which he has induced another to enter by means of misrepresentations, however, honestly made, the same principles can not be applied. It is then only necessary to prove that the representation was material and substantial, affecting the identity, value or character of the subject-matter of the contract, that it was false, that the other party had a right to rely upon it, and that he was induced by it to make the contract, in order to entitle him to relief either by recission of the contract or by recoupment in a suit brought to enforce it. ’ ’

We find no other error in the proceeding which would justify a reversal.

The claim made that the giving of a note by Clark to Adam-son for $250 as an additional amount to be paid for Adamson’s interest in the business might raise doubt in our minds, were it not for the case of Stuts v. Strayer, 60 Ohio St. 384 [54 N. E. 368]. That ease seems exactly in point, and it was there held that the giving of the additional note was not an alteration of the contract on which the party became a surety.

We reach the result that the judgment must be reversed for error in. the charge as hereinbefore pointed out.

Winch and Niman, JJ., concur.


text:
    EXECUTORS AND ADMINISTRATORS.
    [Summit (8th) Circuit Court,
    April 12, 1912.]
    Marvin, Winch and Henry, JJ.
    Bronson-Kalamazoo Portland Cement Co. et al v. Second Nat. Bank of St. Clairsville.
    1. What Constitutes Rejection of Claim by Administrator.
    To constitute a rejection of a claim by an administrator there must be something said or done by him which shows clearly that he does not intend to pay the claim; merely saying that he does not want to pay the claim and requesting that others jointly liable with his decedent on the claim be made to pay it, is not sufficient.
    2. Delay in Bringing Suit on Claim Against Estate not Defense if not Rejected.
    Delay in bringing suit on a claim against an estate during which delay the administrator has not refused to allow the claim, is no defense to an action thereon against an estate, though meanwhile others jointly liable with the estate on the claim have become insolvent.
    3. Notice of Dishonor of Note Endorsed by Decedent Given Administrator. •
    Notice of dishonor of a note endorsed by one who died before maturity of the note, should be given to the administrator of such deceased endorser, and if notice sufficient to identify the note is so given to the administrator it will be held good though the notice says the note was “endorsed by you,” instead of “endorsed by your decedent.”
    Error.

      Musser, Kimber é Huffman, for plaintiff in error.
    (7, H. Eichelberger and S. H. Kenfield, for defendant in
   MARVIN, J.

The parties in interest in this proceeding are Harvey Musser, as administrator of the estate of Henry Robinson, deceased, who is the real plaintiff in error, and the Second National Bank of St. Clairsville, which is the defendant in error. In this opinion they will be spoken of as "the administrator” and "the bank” respectively.

The bank brought suit against the Bronson-Kalamazoo Portland Cement Co., a corporation, hereinafter spoken of as "the cement company,” John F. Townsend and the administrator on a promisory note, which reads:

“$5,000.00 Akron, Ohio, August 30th, 1906.
“Four months after date we, or either of us, promise to pay to the order of J. F. Townsend & Henry Robinson five thousand & 00/100 dollars payable at the Second National Bank of Akron, Ohio. Value received, with interest at 8 per cent, after maturity.
“No. 271. The Bronson-Kalamazoo Portland Cement Co.,
“Due Dec. 30, 1906. “By V. E. Wheeler, “Secretary.”
(Indorsements.)
“J. F. Townsend,
“Henry Robinson.”
(Credits on said note.)
“March 21, 1909, paid $1,000.
“June 29, 1909, paid $600.”’

The petition properly alleges the appointment and qualification of the administrator; that the note was made by the cement company, which is a corporation, the indorsement of said note by Robinson and Townsend, and that it was delivered to the bank by the endorsers, whereby the bank became the holder of the same in due course; that the note was presented for payment on the day it became due, at the Second National Bank of Akron, where, by its terms, it was to be paid; that payment was refused; that the note was duly protested for non-payment, and due notice thereof given to Townsend and to the administrator; that nothing has been paid on the note except as shown by the indorsements thereon; that on the 7th day of February, 1907, the bank presented the note to the administrator for allowance as a claim against the estate of Robinson, and that the same was then allowed as a valid claim against said estate; that thereafter on or about the 7th day of August, 1909, said administrator rejected said claim.

The suit below was brought on the 8th day of October, 1909. No service was made on Townsend or on the cement company. Proper service was made on the administrator, and he answered admitting his appointment and qualification as administrator, and that on August 7th, 1909, he rejected said note as a claim against the estate, and he avers that he rejected said claim long before said last-named date, and that much more than six months before suit was brought he notified the bank that he refused to allow the same as a valid claim against said estate, and so he says, the statute -of limitations bars the bank from maintaining its suit.

He further says that the cement company and its alleged officers and agents attempted to make and deliver the said note without any authority to do so; that the note was and is without any consideration whatever and constitutes no valid obligation against any of the parties sued; that all of said facts were well known to the bank.

He further says that the bank knew, at the time said note became due, that Robinson received no part of any consideration for said note, if any consideration was paid to anybody, and that the bank knew that Robinson was but an accommodation indorser on the same, and that by. reason of its long delay to pursue its claim against the principal debtors on said note, after it had been notified to do so, it can now maintain its suit against him.

He further says that the bank, by accepting payments of interest and a part of the principal on said note after it became due, extended the time of payment of the same, whereby he is released from liability thereon.

To this answer the bank replied, denying all parts thereof except in so far as it admitted the allegations of the petition..

The case was tried to a jury, resulting in a verdict for the bank. The administrator filed a motion for a new trial, which was overruled and judgment entered on- the verdict, to which the administrator duly excepted, and by proper proceedings the case is here for review upon petition in error filed by the administrator.

On behalf of the administrator it is urged that the verdict is contrary to and not supported by the evidence.

The facts disclosed by the evidence are that J. F. Townsend was largely interested in the cement company and that Robinson was also interested in the same company; that this company borrowed money from various parties, one of which was the Second National Bank of St. Clairsville; that there was a custom for notes to be prepared made payable to J. F. Townsend and Henry Robinson, as this was; these notes were indorsed by Townsend and Robinson and left in the hands of Lorenzo D. Brown, who was then assistant cashier of the Second National Bank of Akron, and was authorized by both Townsend and Robinson to fill in dates and amounts, have the note signed by the cement company, and use them for borrowing money for the company, or as renewals of notes already outstanding against the company.

The note sued on in this action was one of such notes; it was indorsed by both Townsend and Robinson; it was probably not signed by the secretary of the company until after the indorsement, although the evidence is not clear on that point. Mr. Brown leaves it entirely uncertain, not from any apparent unwillingness on his part, but because counsel on neither side put questions, the answers to which might have made it clear; the note was not dated, nor was the amount probably written in when the indorsements were made. It was, however, subsequently dated, the amount, $5,000, written in, and if it had not already been signed by the secretary of the cement company, it was then signed by him and left with Brown, who at once forwarded it by mail to the bank at St. Clairsville, which bank either remitted a draft for the avails, or used it in renewals of a former note of the same kind. There is a little confusion about this, but in any event, it took the place of a former note of the same parties, whether drafts were sent each way or not. At its maturity it was presented for payment at the proper place by a notary public; payment was refused, the notary protested it for nonpayment, sending notices by mail to Townsend and other indorsers, and sending a notice to the administrator in these words:

Notice of Protest.
Akron, 0., December 31, 1906.
“Take notice that a promissory note for five thousand dollars, dated Akron, Ohio, August 30, 1906, payable Four Months after date, at Second National Bank, Akron, Ohio, signed by the Bronson-Kalamazoo Portland Cement Co., payable to J. F. Townsend and Henry Robinson, endorsed by you, was this day presented for payment, which was refused, and the same was therefore this day protested by the undersigned notary public for nonpayment. The holder therefore looks to you for payment thereof together with interest, costs, damages, etc., you being the indorser thereof.
“Francis Seiberling,
“Nota/ry Public.
‘ To Harvey Musser, Admr.,
“Estate of Henry Robinson, Piec’d.”

The note was afterwards presented to the administrator for allowance, and on February 7, 1907, he mailed a letter to the bank notifying it that he allowed the claim. Later the administrator and the bank had correspondence back and forth about the claim, in which the administrator urged the bank to get pay for the cement company and Townsend, if possible, and on the part of the administrator it is claimed that the letters written by him to the bank constitute a rejection of the claim. He says, too, that he had a talk with Mr. Slabaugh or Mr. Seiberling, of the firm of Slabaugh, Seiberling & Huber, who represented the bank, in July, 1908, in which he says that he said to Mr. Slabaugh or Mr. Seiberling (he says that he thinks the conversation was with Mr. Slabaugh), he gave notice that this claim was rejected. He says what he said to Mr. Slabaugh (if it was Mr. Slabaugh, and if not, to Mr. Seiberling) was:

“They wanted this note paid. I said that it was a debt of the Bronson-Kalamazoo Company and John F. Townsend, and that they were abundantly able to pay. J. F. Townsend had security from the new corporation, the Chanute Cement & Clay Product Company, bonds, and that I should insist upon Townsend and the Kalamazoo Company paying the note.”

Then follows this question:

“Didn’t you say to him you wanted him to try and get the money out of the Bronson Portland Cement Company and Townsend if he could?”
To this he answered:
“Yes, I told him he could; I said the money was passing through the hands of his bank, the Second National Bank, and they could. They were selling bonds right along, as I understood, and he could get the pay, insist upon Mr. Brown and Mr. Brunner, perhaps, who was the treasurer of the company at that time, paying the note; I so wrote Townsend a day or two before.
“Q. You told him, did you not, you did not want to pay this note unless you had to? A. Well, I can’t say I told him those exact words.
“Q. That was the substance of it, wasn’t it? A. I think I repeated what I said; I said I didn’t propose to pay this note because the company and Townsend were good and could collect out of Townsend and the company and in any event we were simply sureties on the note for Townsend.
“Q. You said you were surety on the note for Townsend? A. Yes.”

We think this is very far from constituting a rejection of the claim by the administrator. Mr. Slabaugh says that he had no conversation with Mr. Musser on the subject, and Mr. Musser says it may be that the conversation was with Mr. Seiberling. Mr. Seiberling’s recollection of the conversation is different from that of Mr. Musser, but if the recollection of Mr. Musser is correct, still it failed to constitute a rejection of the claim. On the contrary, it seems to recognize the liability of the administrator, but to insist that as Robinson was only a surety, the fair thing for the bank to do would be to get the money out of the principal debtor, which he said he supposed they could do. This was practically in accord with what Mr. Musser wrote to the bank on October 15, 1907. In that letter he said:

‘ ‘ This note, as I believe I wrote you upon, a former occasion, is primarily a note of the cement company, secondarily that of Mr. Townsend, and lastly the debt of Mr. Henry Robinson, the latter being purely a noccommodation indorser. You will readily. see that as long as the cement company and Mr. Townsend are able to pay this note, it is entirely natural that I should insist upon the obligation being liquidated by the persons directly and primarily liable.”

On May 23, 1908, Mr. Musser wrote the bank, saying:

“Messrs. Slabaugh, Seiberling & Huber asked me to write to you consenting to the payment, on my part, of the interest for a long time unpaid upon your $5,000 note against the Bronson-Kalamazoo Portland Cement Company and J. F. Townsend, and upon which Mr. Henry Robinson is surety. I cheerfully write this letter, and assure you that I not only consent, but it is my wish that the interest should be paid and that you should take it and make the necessary, indorsement upon the note. I believe that if given a chance Mr. Townsend will be able to dispose of all the bonds of the Chanute Cement & Clay Product Company, or at least enough thereof to pay all of its debts, including your note, and to complete the plans now in process of construction.
‘ ‘ I trust the foregoing will be satisfactory, and that you may receive a prompt remittance of this long unpaid interest. ’ ’

It seems clear that until Mr. Musser finally rejected this claim on August 7, 1909, nothing had been said by him either orally or in writing which could fairly, be construed by the bank as a notice that the claim wfis rejected. On the contrary, it is all consistent with the position which he took at the outset, that the estate of Robinson was liable upon this claim, but that in fairness to the estate, every effort should be made first to obtain payment from the cement company and Townsend; and this disposes of the complaint made as to the charge of the court as found at pages 115 and 116 of the bill, where the court uses this language:

“What is a rejection of a claim? Claims are presented to administrators, executors and assignees very often, and the administrator, executor or assignee may take the matter under advisement, may give some conditional affirmance or rejection, but leave the matter open for further consideration. That would not be a rejection, nor would it be an allowance of the claim. The matter would be simply held under advisement until all the facts and circumstances upon which action ought to be based could be ascertained, and then final action come late, so that the rejection of a claim means 'the final, absolute, unequivocal dis-allowance or rejection, refusal to pay it, refusal to recognize it as a just claim against the estate, and that, as the court has said, must be a finality without conditions or restraint, or without any disposition to consider the matter further as final action of the parties. If there was such rejection, the jury will determine the date of that rejection, and then it would be incumbent upon the plaintiff to bring his suit within, six months thereafter. The burden of proof that the suit was brought at that time would be upon the plaintiff.”

Whether this language is stronger than it should have been, it was not prejudicial to the administrator. The court would have been entirely justified in saying to the jury as a matter of law, that there was no rejection of this claim by the administrator until the final rejection which is conceded by the bank, and which was less than six months before the suit was brought.

But, was the bank a holder in ‘due course in such wise that it was entitled to recover without reference to the way in which the note was made ? It is provided by Sec. 8157 G-. C.:

‘ ‘ One is a holder in due course who has taken the instrument under the following conditions: first, that it is complete and regular upon its face. Second, that he became the holder of it before it was overdue, and without notice that it had previously been dishonored, if such was the fact. ’ ’

There is no claim here that this note had ever been dishonored before it was received by the bank, and it was certainly received before it was overdue.

‘ ‘ Third, That he took it, in good faith and for value. ’ ’

In this ease, as already pointed out, the bank took this note in renewal of a former indebtedness of the maker to the bank, or had remitted a draft for the avails of the note, having received payment of the note which preceded this one, and of which practically this was taken in renewal.

“Fourth. That at the time it was negotiated to him he had not notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

Certainly there is nothing in the evidence in this case to indicate that the bank had any notice of any infirmity, if there was any such, in this note before it took it. So we hold that under the evidence, the bank was holder of the note in due course.

By See. 8119 Gr. C. it is provided as to negotiable paper in these words:

“When the instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein. And a signature on a blank paper delivered by the person making the signature in order that the paper may be converted into a negotiable instrument operates as a prima facie authority to fill it up as such for any amount. In order, however, that such an instrument when completed may be enforced against any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given and within a reasonable time. But if such an instrument after completion is negotiated to a holder in due course, it is valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up strictly in accordance with the authority given and within a reasonable time.”

From the evidence in this case, we think this note, which was not completed when it was indorsed by Townsend and Robinson, was filled out by Brown, their agent, in exact accordance with the authority which they gave to him when they placed the instrument in his hands, but in any event, it was negotiated to a holder in due course, and, therefore, was valid and effectual for all purposes in its hands.

Attention has already been called to the fact that it is not clear from the evidence whether this signature of the secretary of the cement company was placed upon the note before or after the names of the indorsers were written thereon, but as we understand the law, this is indifferent. Section 8171 G-. C. provides :

“Every indorser who indorses without qualification, warrants, to all subsequent holders in due course: the matters and things mentioned in paragraphs Nos. 1, 2 and 3 of the next preceding section.”

These provisions, which have already been read, are:

‘ ‘ 1. That the instrument is genuine and in all respects what it purports to be; that he has a good title to it, and that all prior parties had capacity to contract; and then, further quoting from Section 8171:
“That the instrument is at the time of his indorsement valid and subsisting.”

This section of the statute sufficiently established the ownership of this note and the right to sue upon it in the bank.

What we have said as to what constitutes a rejection of the claim by the administrator, we think is supported by Roekel, and the authorities cited by him. It is possible that the rejeejection need not be as emphatic as the court said in its charge it must be, but there must be something done by the administrator to show that he does not intend to pay the claim at all, not simply that he does not want to pay it and urging that it be paid by somebody else, and that really is all there is in the evidence to show a rejection of this claim, except what Mr. Musser says as to his conversation with Mr. Eichelberger in. 1908, when Mr. Eichelberger asked him if he was not mistaken as to the date, and whether he ever had a conversation with his firm until some time in 1909, that that would not 'be his recollection. It is clear from this that Mr. Musser did not intend to have it understood that he was certain that this occurred in 1908, and in view of the letters that he wrote after that, we think it clear that he was mistaken as to this date, and that, therefore, as already said, the court would have been justified in saying to the jury that the claim was not rejected prior to the time when it was admitted by the bank that it was rejected.

It is urged that the administrator should be relieved in this case because of the delay on the part of the bank in bringing suit against the other parties. We know of no law that would sustáin this position. It is manifest that the bank hoped to obtain payment from the cement company and Mr. Townsend; that the administrator was anxious that it should do so, and expressed such anxiety to the bank. Both parties hoped to avoid litigation as between themselves. Nobody, certainly not the administrator, suffered by reason of this delay, and the bank promptly brought this suit when the claim was rejected. The position of the administrator in this regard is not sound.

There remains a question in connection with the facts which is not discussed in the brief of the plaintiff in error, but which has been considered by the court with care, and that is the sufficiency of the notice of dishonor, given by the notary who protested the note for nonpayment, to the administrator. It will be observed that this notice reads “that the note protested was given for $5,000, dated August 30, 1906, payable four months after date at Second National Bank, Akron, Ohio, signed by the Bronson-Kalamazoo Portland Cement Co. payable to John F. Townsend and Henry Robinson, endorsed by you. ’ ’ This is the language of the notice sent to Harvey Musser, administrator of the estate of Henry Robinson, deceased. If the notary, instead of using the printed form which he had before him, had said “Endorsed by Henry Robinson, now deceased,” we should have been relieved of the question which has somewhat perplexed us. Might.the administrator simply ignore that notice and say, “I have never indorsed any such note, either personally or as administrator,” or was he bound to understand that what was meant was “Indorsed by your decedent?” The court said nothing of this matter in its charge to the jury until attention was called to it by counsel for tbe administrator, when the court said:

“The notice will be before you as evidence of what that notice was. The court will-say to you that in making and presenting this note (which clearly means ‘notice’) it is not necessary for the party'presenting the note (notice) to use any formal words or expressions in serving the notice that the note was dishonored; that is, not paid when due by the cement company, but it must appear that Mr. Musser’s attention was directed to this particular note and that Mr. Henry Robinson was claimed by the plaintiff bank to be liable on that note and his attention must have been challenged to it, but it was unnecessary in notifying Mr. Musser, if he were the administrator, and it is admitted that he was, that he was notified of that fact in the capacity or in the relation of administrator of that estate. Such formality and particularity as that would not be required if notice in fact was given to Mr. Musser as to this particular note in sufficient terms to identify the note.”

The last statement in this part of the charge seems to be justified by Sec. 8200 G-. C., which reads:

“A written notice need not be signed, and insufficient written notice may be supplemented and validated by verbal communication. A mis-description of the instrument does not vitiate the notice unless the party to whom the notice is given is in fact mislead thereby. ’ ’

Section 8201 provides:

‘ ‘ The notice may be given in terms which sufficiently identify the instrument and indicate that it has been dishonored by non-acceptance or nonpayment. In all cases it may be given by delivering it personally or through the mails.”

This is borne out by the case of Townsend v. Lorain Bank, 2 Ohio St. 345. In the opinion, at page 361, this language is used;

“Information of the dishonor is as explicit a condition of his contract (the indorser’s) as presentment to the maker or acceptor, and often quite as important to him; and it can no more -become absolute and be made liable by neglecting the one than the other. He has contracted to know, and has a right to know, that the paper has been presented to the party primarily liable for payment, and been refused; and a right to demand that the information shall be so definitely given as to enable him to fhf the liability, and upon taking it up, to coerce payment from those back of him on it; which can only be done when he is advised that demand was made at the time when the maker or acceptor was bound to pay, and when a failure to do so would dishonor the paper.
“This information need be given in no set form of words. Neither technicality nor formality belongs to the subject. The language used is good, not only for what it positively expresses, but also for what it fairly implies. Nor does the rule, as now settled, in the least infringe upon the doctrine laid down in numerous cases, that immaterial variances or mistakes in the description of the instrument, or other particulars not calculated to mislead the indorser, and which may be corrected by the facts within his own knowledge, will not vitiate the notice. ’ ’

To the same effect are the cases of Powell v. Bank, 1 Dis. 269 (12 Dec. R. 615), and other cases cited in the 2d Encyclopedic Digest, at page 753.

2 Daniel, Negotiable Instruments, Sec. 973, says:

“As to the form of the notice, no particular phrase or form is necessary. The object of it is to inform the party to whom it is sent, first, that the bill or note has been presented; second, that it has been dishonored by the non-acceptance or nonpayment, and third, that the holder considers him liable and looks to him for payment.
“In order that a notice should answer these conditions, and duly intimate dishonor to the drawer or indorser, it should therefore, either expressly or by just and natural implication, comprise the following elements: (1) A sufficient description of the bill or note to ascertain its identity. (2) That it has been duly presented for acceptance or payment to the drawee, acceptor or maker. (3) That it has been dishonored by non-acceptance or nonpayment. (4) That the holder looks to the party notified for payment. ’ ’

Section 974 reads:

‘ ‘ The notice should describe the bill or note in unmistakable terms; should state where the note is, that the party notified may find it; should state who the holder is and who gives the notice, or at whose request it is given. Such, .at least in theory, are the requisites of a proper notice, and a good business man should never neglect to comply with them. But the courts are not strict in requiring this thorough description of the dishonored instrument, and the requirements of the law are considered as satisfied by any description which, under all the circumstances of the case, so designates the bill or note as to leave no doubt in the mind of the party, as a reasonable man, what bill or note was intended.”

From these authorities and other citations made in these authorities, we reach the conclusion that no prejudice came to the administrator by the charge of the court in this regard, and indeed, we think the court might, as pointed out in the case of Townsend v. Lorain Bank, supra, have said to the jury that this notice being addressed to Mr. Musser as administrator of the estate of Henry Robinson, deceased, although it used the words “indorsed by you,” was a sufficient notice to him that the note referred to was one indorsed by Henry Robinson. This is especially true in view of the fact that as administrator Mr. Musser would have had no authority to indorse any note at all, and, therefore, he must have understood that this meant a note indorsed by Henry- Robinson.

The complaint is further made in this ease that the court erred in admitting evidence that other notes of a similar character had been presented to Mr. Musser. The administrator had himself brought out, through the witness Brown, that there was a large number of these notes placed with various banks and others by Brown,, acting for the cement company. Of course, evidence that the administrator had paid other notes of this kind could not be admitted as tending to show that he ought to pay this one. This is forcibly pointed out in the case of Griffith v. Beecher, 10 Barb. (N. Y.) 432, from the opinion in which the brief of counsel for the administrator has quoted. The evidence admitted over the objection of counsel for the administrator was practically the same as was brought out by the administrator through the witness Brown, and possibly was admissible as tending to show that the administrator knew from the notice which he received from the notary that what was meant by the words “indorsed by you” was “indorsed by your decedent.”

This case is not without difficulties, but we have, as we think, carefully considered each of the questions arising in this proceeding in error, and we reach the conclusion that no error was committed to the prejudice of the administrator, that substantial justice was done and the judgment is affirmed.

Winch and Henry, JJ., concur.


text:
    CONTRACTS — DAMAGES.
    [Summit (8th) Circuit Court,
    April 12, 1912.]
    Marvin, Wincb. and Niman, JJ.
    F. E. Smith & Son v. John F. Hemington et al.
    Compensation for Delay and Faulty Execution on Part of Building Contractor.
    When the natural and direct result of the failure of the party to a building contract, who has undertaken to erect a building for another, to perform his contract, is to cause the latter to suffer inconvenience in the use and occupancy of such building, or where such result must have been contemplated by the parties to the contract as a probable consequence of its breach, compensation for such inconvenience may be awarded.
    Error.
   NIMAN, J.

The order of the parties to this proceeding in error is the same as in the court of common pleas. The action below was brought to recover the balance claimed to be due the plaintiffs from the defendant, John F. Hemington, under a certain contract, and modifications thereof and additions thereto, for the construction of two dwelling-houses, and to foreclose a mechanic’s lien.. The amount for which personal judgment was sought against said defendant was $199, with interest from October 10, 1910.

The defendant, John F. Hemington, filed a counter-claim in the action, based upon the alleged failure of the plaintiffs to construct the houses in the manner specified in the contract, and charging the use of defective material, and the doing of faulty work in numerous particulars in the construction of said houses. The amount of the counter-claim asserted was $400, $200 for each of the houses.

The jury returned a verdict for said defendant in the sum of $201, from which the court of common pleas ordered $13.35 remitted. Said defendant having remitted this amount, the plaintiff’s motion for a new trial was overruled, and judgment entered against the plaintiffs in said defendant’s behalf for $187.65.

The plaintiffs in error seek a reversal of this judgment on two grounds :

1. That the court erred in charging the jury; and

2. That the damages are excessive.

The trial court, after instructing the jury that in estimating the damage to said defendant by reason of the failure of the plaintiffs to build the houses in-accordance with the agreement between the parties they had a right to take into consideration how much it was fairly and reasonably worth to place the houses in the condition they would have been in had the contract been kept, used this language:

“You have a right also to take into consideration the inconvenience to the defendants, if any there would be, because of the failure of the plaintiffs to build according to their contract.”

It is contended on behalf of the plaintiffs in error that there was no evidence offered on the subject of any inconvenience arising out of the failure to construct the houses according to agreement, and that it was, therefore, error to instruct the jury that they might consider such inconvenience in assessing the damages.

There was, however, evidence showing the condition of the houses, and the work necessary to be done to correct the defective workmanship employed on the -houses, and to remedy conditions due to inferior material' used in their construction. It would follow as a matter of necessity from this evidence, that inconvenience would'result. No evidence was offered, it is true, as to the value of such inconvenience. It is doubtful if such evidence would be competent. The jury were as capable of determining the amount to be allowed for inconvenience, when the facts were before them, as any witness would.

"We think the court committed no error in giving that portion of the charge above quoted, and that it is consistent with the principle laid down in Goldsmith v. Hand, 26 Ohio St. 101, where the measure of recovery under a building contract, which had been substantially but not strictly complied with, was under discussion. In the opinion, on page 106, it is said:

“We think that where parties have dealt with each other as these parties respectively had in reference to the contract and the mode of its performance, and the owner of the lot has chosen to go into occupancy and use of the building erected upon it, thereby appropriating to himself the fruits of the contract, he ought to, on the plainest principles of justice, pay for them as the contract price, less such sums for delay, defective work or inferior materials, etc., as the owner is in equity entitled to have deducted. ’ ’

It will be noticed that the court in that case did not attempt to enumerate all of the items of damage which might properly be taken into account in determining the amount to be set off against the contract price, but merely indicated the general character of such items.

Where the natural and direct result of the failure of the party to a building contract, who has undertaken to erect a building or buildings for another to perform his contract, is to cause the latter to suffer inconvenience in the use and occupancy thereof, or where such a result must have been contemplated by the parties to the contract as a probable consequence of its breach, we think that compensation for such inconvenience may be awarded.

The law of damages for breach of contract is practically founded on the case of Hadley v. Baxendale, 9 Ex. Rep. 341. It was held there:

“Where two parties have made a contract which one of them has broken, the damages which the other ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties as the probable result of the breach of it. ”

The instruction given by the trial court was, in our opinion, within the spirit of this well recognized principle.

The other contention of the plaintiffs in error, that the damages awarded the defendant, John F. Hemington, are excessive, is based upon the assumption that the jury could consider only the cost of placing the houses in question in the condition they would have been in had the plaintiffs performed their contract strictly according to its terms, and that the evidence does not show snch cost to have been as great as the amount of damages allowed by the jury. We have, however, indicated our approval of that portion of the charge which authorized the jury to consider also, as an element of damage, the inconveniences suffered by said defendant by reason of the condition of the houses.

In view of the estimates given by various witnesses of the cost of placing the houses in condition to conform to the requirements of the contract, and in view, also, of the fact that something might properly be allowed for said defendants’ inconvenience in accordance with the'instruction of the court, we are unable to say that the verdict was excessive.

The judgment of the court of common pleas is affirmed.

Winch and Marvin, JJ., concur.


text:
    RAILROADS.
    [Summit (8th) Circuit Court,
    April 12, 1912.]
    Winch, Marvin and Niman, JJ.
    Lake Erie & W. Ry. v. Northern Ohio Trac. & L. Co.
    1. Warning Required of Starting of Train Stopped at Street Crossing.
    It is the duty of an engineer of a train or engine which has been brought to a stop in, or near to, a public street crossing, to give warning of his intention to start his train, in order that any one upon the street may be informed of the danger of attempting to cross the track, and further, to exercise reasonable and ordinary care to see that the way is clear.
    2. Right of Pedestrian to Rely on Warning of Train’s Starting at Crossing.
    A person upon a public street which crosses a railroad track, upon which is an engine or train standing still near the crossing has a right to rely upon the engineer of the railroad company giving notice before he starts his engine or train across the street.

      Frank & Beam, for plaintiff in error.

      Rogers & Rowley, for defendant in error.
   NIMAN, J.

The plaintiff in error, by this proceeding, seeks the reversal of a judgment rendered against it in the court of common pleas, in favor of the defendant in error, in an action brought for recovery of damages arising out of a collision between a street car of the defendant in error and an engine belonging to the plaintiff in error.

Breifly stated, the facts, disclosed by the pleadings and the evidence, are as follows:

The railroad company owns and operates a steam railroad through the city of Akron, the tracks of which cross North Main street, a public highway, at grade. The traction company owns and operates a street railway line in and over certain streets in the said city. Among the streets occupied by its track is North Main street. The railroad company’s tracks in this street are intersected and crossed at grade by that of the traction company.

On the morning of September 30, 1908, one of the traction company’s street cars was being operated on North Main street going in a northerly direction. At a distance of about fifteen feet from the southerly track of the railroad company the car was brought to a full stop. At about the same time one of the railroad company’s engines with several cars attached, was being backed easterly across North Main street and across the intersection of the street railway and the railroad tracks. This engine was brought to a stop by those in. charge of its operation at a short distance, the estimates varying from six to twenty feet, east of the street car track on which the street car was being run.

The day was the second day of the Summit county fair, and the traction company had stationed at the point of intersection of the tracks on North Main street a signal watchman, one of its employees, whose duty it was to ascertain if the crossing was free from danger for the passage of street cars over the railroad tracks and to signal motormen on cars approaching to cross the railroad tracks when the way was clear and free from danger.

On the occasion under consideration, the engine having passed a few feet easterly from the street car track and having come to a stop, the watchman signaled the n/otorman of the car that had stopped to cross the railroad track, and the motorman seeing this signal, and receiving also the proper indication from the conductor on his car to go ahead, put the car under motion and was moving northerly across the railroad tracks, when the engine which, had been standing still,, started westerly and collided with the street car, which was damaged to some extent by the collision.

The action below was for the recovery of the damage done to the street ear, and was founded upon the contention that “the defendant recklessly, negligently and unlawfully started its engine without any warning or signal of its intention so to do, and negligently, carelessly and wrongfully drove its engine in and upon the said car of the plaintiff company. ’ ’

The questions of fact involved in this contention, which were disputed by the defendant, were resolved by the jury in favor of the plaintiff, as is shown by the verdict in its favor.

It is, however, contended by the plaintiff in error that the defendant in error on the facts of the ease, as a matter of law, was guilty of contributory negligence, which must bar its recovery, and this is one of the grounds of error relied upon for a reversal.

The facts claimed to demonstrate that the defendant in error was guilty of contributory negligence are that the engine had stopped so close to the street car tracks as to indicate a probability that it was likely to start at any minute; that the engineer was on the northerly side of the engine and' could not, and did not see the car at any time; that the brakeman on the cars which were being moved by the engine was too far away from the crossing to do anything to prevent the collision; that the fireman on the engine was at the time engaged in fixing the fire, that the person ocupying the position of the fireman on the left hand or southerly side of the engine, and who was supposed by the traction company’s employees to be the fireman, but who in fact was not, was sitting at the cab window looking east in such a way as to indicate that he did not see the car; that the flagman who gave the signal to the motorman to cross the railroad track did not see -the engineer, fireman or any one else connected with the engine, but gave the signal to cross solely on the fact that the engine had come to a stop; that the motorman and conductor both knew that the engineer was out of sight, and that they also knew that the person supposed to be the fireman was looking eastward and not paying any attention to the car; and that with knowledge of these facts, without any attempt on the part of the motorman or conductor to ascertain what was going to be done next with the engine, reliance was placed by them solely upon the flagman’s signal, and the fact that the engine had come to a stop, in attempting to pass over the crossing in front of the engine.

It is the duty of an engineer in charge of a train or engine which has been brought to a stop in, or near to, a public street crossing, to give warning of his intention to start his train, in order that anyone upon the street may be informed of the danger in attempting to cross the track, and further, to exercise reasonable and ordinary care to see that the way is clear.

The authorities on this subject are considered in Thompson, Negligence, Sect. 1568, and the result stated in the following language:

“It is a sound conclusion that it is the duty of the engineer in charge of a train standing still, before starting his engine across a street, not only to give timely warning of his intention, but also to see whether his train will not be likely to strike a traveler or frighten his horses.”

It was the duty, therefore, of those in charge of the engine belonging to the plaintiff in error, to give warning of their intention of moving across the street with the engine and to see that the way for passage was free.

The employees of the traction company, in charge of the car, had a right to rely upon the performance of this duty on the part of the employees of the railroad company in charge of the engine. The former were not bound to anticipate negligence on the part of the latter in the performance of their duties.

As was said in Loucks v. Chicago, M. & St. P. Ry. 31 Minn. 526 [18 N. W. 651] :

“One who is called upon to exercise care to avoid danger from the acts of others may, in regulating his own conduct, have regard to the probable 'or apprehended conduct of such other persons, and to the presumption that they will act with reasonable caution and not with culpable negligence.”

Considering the special facts relied upon by the plaintiff in error as undisputed, and giving them full effect, we can not see that they, as a matter of law, show the defendant in eror to have been guilty of contributory negligence. This was a question for the jury which was properly submitted to them by the trial court.

The views herein expressed are sustained by numerous authorities.

In Robinson v. Western Pacific Ry. 48 Cal., 409, a part of the syllabus reads as follows:

“If a track of a railroad passes along the street of a city, crossing another street, and a train of cars is stopped in the first street so that the last car in the train stands in the cross street, and while a person is walking along the cross street, over the track, behind the train, the train without any notification is suddenly backed, and the person is knocked down and injured by the cars, the employees of the company are guilty of gross negligence.
“The person injured in such a case is exercising an undoubted right in crosing the railroad track on a public street, and is not guilty of such want of care or diligence as contributes to the injury, and the railroad company is not released from the liability on the ground of contributory negligence.
“The person injured in such case had a right to presume that he would be notified that the train was about to move, and was not bound to wait because the train was on the street, or assume that it might move suddenly backward without notice.”

In St. Louis & S. F. Ry. v. Dawson, 64 Kan. 99 [67 Pac. 521] is a case in principle like the one under consideration. The syllabus reads:

‘ ‘ The attempt of a traveler- to cross the front of an engine standing near the crossing is not generally so inherently dangerous as to preclude a recovery of damages if the engine or train is unexpectedly started forward upon her, but in most such eases the question, whether she has been guilty of negligence will go to the jury, especially where it moves upon her without giving any signals. Under the facts in this case, the district court did not err in holding the general rule as above stated to be applicable thereto.
“A traveler upon a public street, passing in front of an engine, fired up and warmed, standing without the bounds of the highway, but so near it that from the cab windows the street and objects within it can be plainly seen, has a right to assume that the engineer will not, without warning, start his locomotive and run over her upon the street before she can, while proceeding with haste and in the exercise of ordinary care and caution, cross the tracks upon which the engine is standing when she makes the attempt to do so. ’ ’

The law is summarized in 33 Cyc. of Law and Proc., 1036, in this language:

“"Where there are trains or cars standing on or near a crossing, a person approaching the crossing has a right to assume that they will not be moved without proper warnings or signals, and if he attempts to cross with reasonable care and prudence, he is not necessarily guilty of contributory negligence, the question whether or not is he so negligent usually being one of fact. ’ ’

See also Meeks v. Ohio River Ry. 52 W. Va. 99 [43 S. E. 118] Pinney v. Missouri, Kansas & Texas Ry. 71 Mo. App. 577; Palmer v. Detroit, L. & L. M. Ry. 56 Mich. 1 [22 N. W. 88].

It is also contended by the plaintiff in error that the court erred in giving the first request of the plaintiff below to charge before argument. This request was in the following language:

“If you find that at the time the transaction involved in this case the plaintiff street railroad company had a flagman stationed at the crossing where the street railroad tracks cross the tracks and the defendant company, and you further find that a street car of the plaintiff approached said crossing while the engine operated by the defendant company was backing toward the east across said crosing, and that said street car stopped south of said steam railroad tracks at a distance of from ten to fifteen feet, and -you further find that the fireman on said engine saw said street car waiting to cross" said tracks and you further find that said engine backed to the east to a point fifteen or twenty feet easterly of that point where the street car tracks cross the railroad tracks, and that said locomotive after clearing said tracks such distance stopped, and that the persons in charge of the same did not give any signal or notice of any intention to come forward, and you further find that after said engine had stopped and while it was stopped the flagman at said crossing signalled said car to come forward, then I say to you said street car had a right to go forward across said tracks, and it was the duty of the servants of the defendant in charge of said locomotive to exercise their faculties and to look for such ear before starting their engine back over said street car track, and if they started their engine forward without looking or exercising their faculties to ascertain if the street car was crossing under the circumstances above stated, and plaintiff’s car was injured as a proximate result of such starting, then the plaintiff is entitled to recover. ’ ’

We think this request is in harmony with the principles of law which are stated in the authorities already considered under the first assignment of error, and that it correctly states the duty of the servants of the defendant in charge of the locomotive, and the liability of the defendant for their neglect to perform such duty.

Complaint is also made that the court erred in refusing the defendant’s fifth request to charge, which is in the following language:

“If you find from the evidence that plaintiff’s ear was brought to a stop not less than ten nor more than fifty feet from the crossing; that defendant’s engine then crossed the plaintiff’s tracks and came to a stop on the east side thereof, or if defendant’s engine had already crossed plaintiff’s tracks when its ear was brought to a stop, and if while defendant’s engine and plaintiff’s car were both stopped an employee of plaintiff’s went forward on the crosing and signalled plaintiff’s employee on the car to cross the railroad tracks; and if you also find that at the time such signal to cross was given that defendant’s employees were either not visible to plaintiff’s employees in charge of its ear or if visible were not heeding or watching plaintiff’s car, or did not see it and that such failure to heed or watch or see the car was known to plaintiff’s employees in charge of the car or could have been known to them by the exercise of ordinary care, then and in such case it was the duty of plaintiff’s employees to use such further ordinary care as a person in the exercise of ordinary care would use under similar, circumstances, to ascertain whether it was in fact safe for the ear to be driven upon or across the crossing; and if plaintiff’s employees did not use such ordinary care, and without such ordinary care on their part drove the car upon or over the crossing, and that the failure to exercise such ordinary care contributed to the bringing about the collision and the resulting damage to plaintiff’s ear, then in such ease plaintiff was guilty of contributory negligence and can not recover notwithstanding that refendant may also have been guilty of one or more negligent acts which also contributed to the bringing about of the collision and the resulting damage.”

This request, if given, would have imposed the exercise of a higher degree of care upon the employees of the traction company in charge of the ear than they are chargeable with under the law. They were not required to anticipate that the employees of the railroad company would be negligent in the performance of their duties, nor to take the steps required by the language of this request to guard against such negligence on the part of those in charge of the engine as would be involved in their starting it across the street without warning, and without informing themselves that the way was clear and free from danger to those who might be crosing the tracks.

We find no error prejudicial to the plaintiff in error in any of the matters complained of, and the judgment of the court of common pleas is affirmed.

Winch and Marvin, JJ., concur.


author: NIMAN,'J.

text:
    DEEDS.
    [Summit (8th) Circuit Court,
    April 15, 1912.]
    Winch, Marvin and Niman, JJ.
    Charles Akers v. Akron, C. & Y. Ry. et al.
    Rule In Shelly’s Case Applied to Deed Granting Life Estate with Reversion to Children, Heirs of His Body, Etc.
    When the granting clause of a deed is in the usual form and gives, grants, bargains, sells and conveys the premises therein described unto the grantee, his heirs and assigns, and the habendum clause reads, “to have and to hold said premises for and during his natural life, with reversion at his death to his children, heirs of his body, and their heirs and assigns, and if he dies leaving no children or legal representatives, then the above is to be and remain the property of the brothers and sisters of Daniel Fulmer, their heirs and assigns, forever,” the rule in Shelly’s case applies and the grantee takes an estate in fee simple.
    Appeal.
   NIMAN,'J.

This action is here on appeal from the court of common pleas. The plaintiff claims to be the owner in fee simple and in possession of certain real estate, situated in the township of Springfield, county of Summit and state of Ohio, and especially described in the petition. The action is brought to enjoin the defendants from committing certain acts of alleged trespass upon said real estate, and for the recovery of damages for trespasses already committed.

The defendant, the Akron, C. & Y. Ry. is a railroad corporation, organized under and by virtue of the laws of Ohio, and claims to be the owner of that part of the real estate mentioned in the plaintiff’s petition which is described in its answer, and to be in possession thereof.

The conflicting claims of title to the real estate in question are based upon the following facts:

Prior to October 24, 1884, Adam Fulmer was the owner in fee simple of the real estate described in the petition which embraces that also described in the answer. On that day he executed and delivered to his son, Daniel Fulmer, a deed which is recorded in book 153, page 260 of Summit county records of deeds, conveying said .premises to the said Daniel Fulmer. Adam Fulmer and his wife joined in the execution of the deed, and by the granting clause thereof, in consideration of $10,000 they do give, grant, bargain, sell and convey unto the grantee, Daniel Fulmer, his heirs, and assigns, the real estate therein described, which includes that in controversy. The habendum clause of the deed contains the following language:

‘ ‘ To have and to hold said premises to the said Daniel Fulmer for and during his natural life, with reversion at his death to his children, heirs of his body, and their heirs and assigns, and if he dies leaving no children or legal representatives, then the above is to be and remain the property of the brothers and sisters of Daniel Fulmer, their heirs and assigns, forever. ’ ’

By deed of May 20, 1893, recorded in book 213, page 56, Summit county record of deeds, Daniel Fulmer conveyed the real estate described in the answer to the Akron & New Castle Ry., and this company subsequently deeded said real estate to the defendant, the Akron, C. & Y. Ry.

Daniel Fulmer died January 14, 1903, leaving two children surviving him. The plaintiff claims title to the real estate in question through these two children.

If Daniel Fulmer acquired a fee simple estate by the deed from Adam Fulmer, then the said Daniel Fulmer conveyed a good title to his grantee, and that title has been acquired by the defendant, the Akron, C. & Y. By. But if, on the contrary, the said Daniel Fulmer did not take a fee simple estate by the deed to him from Adam Fulmer, but only a life estate, as is contended by the plaintiff, then the children of Daniel Fulmer, upon his death, became the absolute owners in fee simple of the real estate involved in this action, and the plaintiff having acquired their title, would be the absolute owner of said real estate and entitled to the relief prayed for, unless other facts and principles of law invoked by said defendant should prevent him from obtaining such relief.

It is therefore essential that the deed from Adam Fulmer to Daniel Fulmer be considered, and the character of the estate thereby conveyed be determined.

It is claimed on behalf of said defendant that in construing the language of this deed, the rule in Shelly’s case should be applied, and that by the application of this rule of law, it necessarily results that Daniel Fulmer took a fee simple estate in the premises conveyed.

It is contended on behalf of the plaintiff, however, that Daniel Fulmer acquired only a life estate in the premises conveyed by the deed, the remainder passing to his children.

In McFeely’s Lessee v. Moore’s Heirs, 5 Ohio, 464 [24 Am. Dec. 314], the rule in Shelly’s ease was stated in the following language:

‘ ‘ The rule is, where the aneester takes a freehold and by the same conveyance, whether deed or devise, the estate is limited, either mediately or immediately, to his heirs, the word ‘heirs’ is a word of limitation, not of purchase and the fee vests in the ancestor. ’ ’

In that case the testator had given his real estate to two persons named in his will, for their use during their respective lives, and had then provided, “But at their decease, my will is that these two tracts of land descend to their heirs, to whom I bequeath the same to have and to hold said tracts to themselves, their heirs and assigns, forever,” and it was held that the provisions of the will interpreted by the rule of Shelly’s case vested a fee simple estate in the parties named in the will.

In King v. Beck, 15 Ohio, 559, it was said in the opinion of the court, on page 562:

“The rule in Shelly’s case is not a rule of construction but a law of property. It is not designed to give a meaning to words, but to fix the nature and quantity of an estate. If the estate for life created in the devisee or donee, is limited precisely as it would descend at law, the rule in Shelly’s ease vests the entire fee in the first devisee or donee.”

In Brockschmidt v Archer, 64 Ohio St.. 502 [60 N. E. 623], part 1 of the syllabus reads as follows:

“Before the rule in Shelly’s ease was, as to wills, abrogated in this state by the statute of 1840, a testator devised certain lands to his son for life, and at his death to go to his heirs, and, there being nothing else in the will to show that the testator used the word ‘heirs’ to designate a more limited class as children: Held: That, as the lands passed under the will precisely as they would have descended at law, the son took an estate in fee simple in the lands so devised.”

Reverting to the deed in question, it will be seen that the granting clause is in the usual form, and gives, grants, bargains, sells and conveys unto the grantee, his heirs and assigns, the premises therein described. By the habendum clause, the said Daniel Fulmer is “to have and to hold said premises for and during his natural life, with reversion at his death to his children, heirs of his body, and their heirs and assigns, and if he dies leaving no children or legal .representatives, then the above is to be and remain the property of the brothers and sisters of Daniel Fulmer, their heirs and asigns, forever.”

If the word “children” was used alone and not with the words “heirs of his body” following, the contention of the plaintiff would be well founded, and the word ‘ ‘ children” in such case would be construed to be a word of purchase and not of limitation. But it is well settled that the words “heirs” or “heirs of his body” are to be construed as words of limitation and not of purchase, and the fact that the word “children” is here followed by the words “heirs of his body,” indicates that the expression “heirs of his body” is to control.

It will be seen, also, that the estate here granted is limited precisely as it would descend at law, and in such case, the rule in Shelly’s ease vests the entire fee in the grantee.

In the Continental Mutual L. Ins. Co. v. Skinner, 2 Circ. Dec. 688 (4 R. 526) affirmed by the Supreme Court, Skinner v. Connecticut Mutual Life Ins. Co., 30 Bull. 307, the granting clause was in the following form, “Do give, grant, bargain, sell and convey unto said grantees and their heirs the following described property.” Following the description, the deed provided: “All the lands above conveyed are to be held and enjoyed by the said Wilson L. Skinner and Abbie Jane Skinner, his wife, during their natural lives, and at their decease, are to go and pass to their heirs.” It was held that the grantees took an estate in fee simple.

We are of opinion, therefore, that the rule in Shelly’s case is applicable to the language of the deed from Adam Fulmer to Daniel Fulmer, and that, applying the rule, the said Daniel Fulmer took a fee simple estate in the lands described in the deed, and that the defendant, the Akron C. & Y. Ry. has a fee simple estate in the lands described in its answer.

This conclusion renders it unnecessary to consider the facts relating to the possession of the premises in dispute, or the other principles of law cited by said defendant to defeat the plaintiff’s cause of action.

The petition of the plaintiff is dismissed.

Winch and Marvin, JJ., concur.