author: ROBINSON, J.

text:
    CIVIL SERVICE — PROHIBITION, WRIT OP.
    [Hardin (3rd) Court of Appeals,
    February 24, 1916.]
    Crow, Robinson and Kinder, JJ.
    James E. Lewis v. George H. Lingrel.
    1. Writ of Prohibition Invoked by Injured Party to Prevent Inferior Tribunal’s Unlawful Exercise of Jurisdiction.
    A writ of prohibition may issue, in a proper case, upon the application of a person in his own behalf to prohibit an inferior tribunal from exercising jurisdiction, not possessed by such tribunal, to the injury of such person.
    2. Mayor without Authority to Try Municipal Civil Service Commissioner.
    The chief executive of a city has no jurisdiction under Sec. 486-19 G. C., to try a municipal civil service commissioner on a charge of inefficiency, neglect of duty or malfeasance in office, which charge contains no averments of the facts which constitute such inefficiency, neglect of duty or malfeasance in office. And in such a case prohibition is a proper remedy.
    3. State Civil Service Commission’s Investigation and Report not Prerequisite to Instituting Proceedings against Municipal Civil Service Commissioner.
    An investigation of the official conduct of a city civil service commissioner by the state civil service commission or the making of a report of such investigation in writing to the chief executive authority of such city, is not a condition precedent to filing or prosecution of charges of official misconduct against such city civil service commissioner before such chief executive.

      Johnson & Johnson and Price & Price, for plaintiff.
    0. M. Cessna, city solicitor, for defendant.
   ROBINSON, J.

On January 22, 1916, tbe plaintiff filed his petition in this court, alleging that the defendant, George H. Lingrel, is the duly elected, qualified and acting mayor of the city of Kenton, Ohio; that the plaintiff is an elector of said city; that on March 13, 1915, by the consideration of Charles R. Price, then mayor of said city of Kenton, he was appointed a member of the municipal civil service commission of said city for the unexpired term of four years ending January 1, 1918; that on March 13, he qualified and ever since has been acting as such civil service commissioner; that on January 18, 1916, the defendant herein, through the registered mail of the United States, notified him that he had been charged with “inefficiency in office, neglect of duty in office, and malfeasance in office” as a member of said civil service commission of the city of Kenton, Ohio, and that he had been removed from said position and office, said removal to take effect January 26, 1916, unless a hearing was demanded on said charges and on such hearing such charges were not sustained; that on January 20, 1916, the plaintiff demanded of the defendant a copy of said charges, an opportunity to be publicly heard in person and by counsel in his own defense; that the said George H. Lingrel, mayor as aforesaid, refused to furnish plaintiff with a copy of such charges, and notified the plaintiff that the hearing on said charges would, be set for Saturday, January 22, 1916, at 9 o’clock; that on January 22, 1916, at the mayor’s office in Kenton, Ohio, the plaintiff appeared in person and by counsel and objected to said George H. Lingrel, mayor as aforesaid, proceeding with the hearing on said charges or in any way exercising jurisdiction in said matter; that said objections were made in the form of a motion, which motion was overruled by said mayor; that nq investigation as to whether the said plaintiff, as a member of said civil service commission, was violating or failing to perform the duties imposed by law, or was wilfully or through any culpable negligence violating the provisions of law or failing to perform his duties as a member of such commission, was ever made by the state civil service commission and no report of any violation or failure to perform his duties as such commissioner was ever made by said state civil service commission to the mayor of the city of Kenton, Ohio, or made a public record by said mayor; that the plaintiff: can not defend against said charges unless he be furnished with specifications, stating with substantial certainty the particular act or acts or the omissions thereof which constitute his inefficiency, the particular duty or the omission thereof which constitute his neglect of duty, and the particular acts which constitute his malfeasance in office; that the said George H. Lingrel, mayor, is threatening to and will, unless restrained by the order of this court, proceed without authority of law, to hear and determine said charges ; and that the plaintiff is without a remedy at law.

Upon the filing of this petition, a temporary writ prohibiting the defendant from further proceeding in said matter was issued out of this court.

This cause then came on for hearing up’on the motion of the defendant to dissolve the temporary writ of prohibition for the reasons that the facts stated and the allegations contained in plaintiff’s petition, and upon which said writ was issued, are insufficient, if proved, to sustain said writ and that said petition does not state facts sufficient to constitute a cause of action against the defendant.

The court has treated this motion as a general demurrer.

The first question which presents itself to the court is, whether this action is properly brought in this court by the plaintiff in his individual capacity, or whether the same should not have been brought in the name of the state.

The right to a writ of prohibition originally belonged to the sovereign, and was issued by the sovereign to restrain inferior courts from assuming jurisdiction which they did not possess. But through the years the right to the writ has been enlarged until it has become a remedy which either the state or any party or person aggrieved may invoke in a proper ease. And while the usual way of invoking the writ has been by the state on relation of the complaining party, there is now, in this country at least, abundant authority for the injured party to invoke the writ in his own behalf. Trainer v. Porter, 45 Mo. 336; 32 Cyc. 625.

The next proposition which presents itself for the determination of the court is, whether the defendant in this case was so far exceeding his jurisdiction in proceeding to hear and determine the alleged charges against the plaintiff as require this court to interfere by this extraordinary remedy.

The chief executive of a city has only such jurisdiction to try and remove a civil service commissioner as the statute gives him, and his office is essentially ministerial rather than judicial.

Section 486-19 G-. C. provides—

"That the chief executive authority of such city may at any time remove any municipal civil service commissioner for inefficiency, neglect of duty, or malfeasance in office, having first given to such commissioner a copy of the charges against him and an opportunity to be publicly heard in person or by counsel in his own defense, and any such act of removal shall be final.”

This provision gives to the chief executive of a city jurisdiction which in its nature is judicial in the matter of removing a city civil service commissioner, and provides that such commissioner, before his removal, shall be furnished with a copy of the charges against him and shall have an opportunity to be heard in person and by counsel.

The charges filed against the plaintiff herein before said chief executive were in the following words:

"Mr. J. B. Lewis. You are hereby charged with the following, as a member of the. Civil Service Commission of the city of Kenton, Ohio, to-wit:
"1. Inefficiency in office.
"2. Neglect of duty in said office.
"3. Malfeasance in office.
"Any one of said charges, if true, is a cause ior removing you from said office.
"You are therefore notified that you are removed from said position and office as a member of the Civil Service Commission of the city of Kenton, Ohio, to take effect on January 26, 1916, unless a hearing is demanded on said charges before said time and upon said hearing said charges are not sustained.
“If you desire a bearing on said charges you will notify me at once.
“Witness my hand and official "seal at Kenton, Ohio, this 18th day of January, A. D. 1916. George H. Lingrel, mayor of the city of Kenton, Ohio. Seal.”

The charges are in the words of the statute only and embody no facts apprising the accused of what facts constitute his inefficiency, what things he has neglected to do which he should have done, or what things he has done which he should not have done. And said charges are made by the said George H.-Lingrel as mayor of said city.

In the case of State v. Sullivan, 58 Ohio St. 504 [51 N. E. Rep. 48; 65 Am. St. Rep. 781], the Supreme Court had occasion to pass upon a similar statute pertaining to the members of the board of equalization, and involving a similar power conferred by said statute upon the mayors of cities. And in so doing it declared that the power so conferred upon a mayor “is a special authority, and must be strictly pursued. Such power can not be exercised arbitrarily, but only upon complaint, and after a hearing had in which an officer is afforded opportunity to refute the charge made against him. Nor has the mayor in such case authority to proceed to a hearing until charges have been preferred which embody facts that, in judgment of law, constitute neglect of duty or misconduct in office, and of which the accused has had due notice.”

And again, in the case of State v. Hoaglan, 64 Ohio St. 532 [60 N. E. Rep. 627], said court holds:

“When a public officer may be removed for specified causes such facts must be stated as in judgment of law constitute the cause relied on.”

The charges filed against this plaintiff do not contain any facts by which the plaintiff might be apprised of the accusations which he would be required to meet, nor any facts which in judgment of law constitute inefficiency in office, neglect of duty in office or malfeasance in office.

We are therefore of the opinion that there were no charges filed against the plaintiff which gave to said George H. Lingrel, mayor, jurisdiction to proceed to the hearing and determination of the question attempted to be raised by the so-called charges filed; and since neither appeal nor error from, such judgment of the mayor can be prosecuted, a writ of prohibition is plaintiff ’s only remedy.

The time elapsing between January 18, 1916, and January 26, 1916, the day set for said hearing, we think was sufficient notice had the charge contained sufficient facts to place the plaintiff upon trial.

We are of opinion that an investigation by the state civil service commission, and the filing of the report of such commission, is not a condition precedent to the filing of charges against a city civil service commissioner. We, however, are of opinion that no public officer, whether his duties be ministerial or judicial, ought to place himself in the position of being both the accuser and the judge of the accused. The accused is entitled to a fair and impartial, trial .and to a judgment by an unbiased tribunal, and that next to the duty of the officer, acting in a judicial capacity, to render a righteous judgment is that of doing it in such a manner as will beget no suspicion of unfairness or partiality. The propriety of an incumbent of any tribunal making the charges which his duties require him to hear and pass upon is, to say the least, questionable.

The writ of prohibition is therefore made perpetual, prohibiting said George H. Lingrel, as mayor of the city of Kenton, Ohio, from proceeding to try the said James E. Lewis upon the charges as now filed before said mayor.

Crow and Kinder, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    GUARANTY — HUSBAND AND WIPE.
    [Cuyahoga (1st) Circuit Court,
    June 8, 1908.]
    Marvin, Winch and Henry, JJ.
    Warren Paint Co. v. Margaret Swihart.
    Extension of Time of .Payment of Husband’s Account Consideration for Guaranty thereof by Wife.
    An endorsement made April 16, 1904, by a wife upon a statement of account due from her husband, “I will see that this account is paid by $25 a month beginning August 1, 1904,” constitutes a guaranty, consideration for which would be furnished by an extension of time given her husband; and in an action against her on the agreement the creditor might show that no demand for payment was made before August 1, as some evidence not only that an agreement for extension had been made but that it had been kept by creditor.
    Error.

      horr .& Lowenthal, for plaintiff in error.

      Benjamin C. Starr, for defendant in error.
   MARVIN, J.

The parties here are as they were in the court below. The suit was brought by the paint company against Margaret Swihart, and alleges as its cause of action:

“That on or about April 16th, 1904, Frank Swihart was indebted to this plaintiff in the sum of $330.70, then past due and payable. That on said date the defendant in consideration of the extension granted by the plaintiff, of the time of payment of said indebtedness, and signed upon a statement of the said indebtedness against said Frank Swihart as follows: ‘I will see that this account is paid by $25 a month beginning August 1st, 1904. (Signed) Margaret Swihart,’ and by said writing defendant then and thereby guaranteed the payment to plaintiff of said indebtedness from said Swihart, in monthly installments of $25 each, beginning August 1st, 1904. A copy of said statement containing a copy of said agreement is hereto attached marked ‘Exhibit A.’
“The plaintiff duly performed all the conditions of said agreement on its part to be performed. But said indebtedness has not been paid, except the sum of $105 paid in small installments at various times, and there is now due and payable to the plaintiff on said account the sum of two hundred and twenty-five dollars and seventy-four cents ($225.74) with interest.
“Wherefore plaintiff brings suit and asks judgment for said amount of $225.74 together with interest on the entire account from January 1st, 1904.”

The exhibit which is attached to the petition is in the form of .an account of the plaintiff against Frank Swihart. On the account are these words endorsed: “I will see that this account is paid by $25 a month beginning August 1st, 1904 (Signed) Margaret Swihart. ’ ’

The evidence shows that Frank Swihart was indebted to the plaintiff on this account; that Ford M. Clapp, a representative of the plaintiff, called on Frank Swihart for payment of this account in April, 1904; that he stated that he was not able at that time to make payment; that the defendant is the wife of Frank Swihart and that she was called by her husband and had a conversation with Clapp and her husband together, the result of which was that Clapp wrote the endorsement on the account and the defendant then signed it.

The claim on the part of the plaintiff is as stated in the petition, that this was an undertaking on the part of the defendant to guarantee the payment of the account, and that it was made upon the consideration that time for payment should be extended, the account being already due at the time the endorsement was made.

It will be noticed that .no consideration is named in the endorsement, nor does it appear from the testimony of Clapp that he, in words, promised that the time for payment should be deferred, but the promise that the defendant would see that the account would be paid in monthly installments of $25 each, beginning on August 1, 1904. That this was a guaranty on the part of the defendant for the payment of this account we entertain no doubt. Stearns, Suretyship, Sec. 5 says:

“A guarantor is one who undertakes to-pay, if the principal does not. * * * The guarantor promises that the principal will perform his agreement, and if he does not, then he, the guarantor, will do it for him.”

Bouvier, in his definition of the word guaranty says it is: "An undertaking to answer for another’s liability, and collateral thereto.”

And says further, that the form of words in which this undertaking is made is not material. The words have the meaning as written hereof “I will see that this account is paid;” that "I will be responsible that the debtor shall pay this account,” and that is equivalent to saying, "If the debtor does not pay this account, I will pay it;” and this constitutes a guaranty. That there must be a consideration for such guaranty in order that the guarantor be bound, there can be no doubt. That an agreement to defer payment is a sufficient consideration is equally well settled, and that to entitle the creditor to avail himself of the guaranty, he must have deferred, where that was the consideration, as he undertook to do. In this ease the evidence is that Clapp, having obtained this endorsement, returned the account to the plaintiff with the endorsement upon it and that no payment was thereafter made until in August, 1904, when the defendant made a payment upon the account, and thereafter payments were made by her or her -husband to the amount of something like $100 when the payments ceased, and this suit is for a balance still owing upon this account.

The' plaintiff offered to show, as appears on page 6 of the bill of exceptions, that no demand was made upon either Mr. or Mrs. Swihart, for any payment until after August 1, 1904. Upon objection of the defendant this evidence was excluded. In this we think there was error on the part of the court. One of the things which it was incumbent upon the plaintiff to prove in order to hold the defendant was, that there was carried out, on the part of the plaintiff, the alleged agreement to defer the collection of the claim. The evidence excluded would have tended to establish this material fact. Another question which was asked of Clapp, who was a witness on behalf of the plaintiff, was in these words-. "Will you state whether or not there was extended to Mr. or Mrs. Swihart the extension of payment as stipulated in this agreement?” An objection to this question was sustained, and the action of the court in that regard is complained of here, but as this involved a conclusion rather than a fact, we do not think there was error in sustaining the objection to this question.

At the conclusion of the evidence on the part of the plaintiff, a motion by the defendant to direct a verdict in her favor was sustained. In this there was error.

Perhaps with the evidence just as the court had permitted it to go to the jury, the plaintiff had not made a case, but if the court had permitted the witness to answer that ho demand was made for payment after the defendant signed the endorsement until as late as August 1, 1904, it would have tended to show that the plaintiff had agreed to the extension. Taken in connection with the fact that Clapp, the representative of the plaintiff, himself prepared the endorsement and that it was signed and delivered to him, and by him delivered to the plaintiff, and that the plaintiff made no demand for payment until the time mentioned in the endorsement as the date of the first payment; it would certainly have made a case .to be submitted to the jury as to whether or not the plaintiff had not agreed to the extension and performed that agreement. A case, which seems to be directly in point, is that of Breed v. Hillhouse, 7 Conn. 523, where this language is used in the syllabus:

‘1 Where a payee of a promissory note, after it became due, accepted the guaranty of a third person, for a certain period, and actually forbore suit during that period, it was held, that these facts afforded prima, facie evidence of an agreement by the plaintiff to forbear suit.”

And in the opinion at page 528, this language is used:

“The agreement in question to forbear, was clearly proved, on a principle of probable presumption, which harmonizes with common sense and is conformed to experience; and both reason and experience bear concurrent testimony to the inference of a consideration in this case. The acceptance of the- indorsed guaranty by the plaintiff, and his consequent forbearance, prove the agreement in question, and are incompatible with any other supposition.”

Wbat bas been said necessarily results in a reversal of the judgment, for error in excluding the evidence named and in directing a verdict for the defendant.

Winch and Henry, JJ., concur.


text:
    CRIMINAL LAW — HOMICIDE.
    [Cuyahoga (8th) Circuit Court,
    June 8, 1908.]
    Marvin, Winch and Henry, JJ.
    Vinko Duranec v. State of Ohio.
    1. Eye Witness of Shootirjg Identifying Accused at Police Station as Person Shooting Competent to Identify at Trial.
    On the trial of one indicted for murder in the second degree, it is not reversible error to permit an eye witness of the shooting to testify that after the arrest of the accused he went to the police station and picked out the accused as the person who did the shooting, where he is able at the trial to identify the accused, and does so.
    2. On Second Degree Murder Trial Excluding Verdicts Except for Highest Offense and Manslaughter, Erroneous.
    In such trial it is error to charge that the jury should either find the accused guilty of murder in the second degree or manslaughter or acquit him, for this excludes the two lesser offenses of assault and battery and assault alone.
    ERROR.

      Ralph Linder, for plaintiff in error.

      P. L. A. Lieghley, for defendant in error:
   MARVIN, J.

Duranec was indicted by the grand jury of this county for the crime of murder in the second degree. Having pleaded not 'guilty, he was tried, the result being that he was found guilty of manslaughter. It is urged in his behalf here, that there was error in the trial manifest upon the record.

Evidence was introduced tending to show that Stanislas Wojezali died of the wound within the same month that he was shot, that being on March 19, 1908.

; George A. Transue testified that be saw the plaintiff in error do the shooting; that later on, the same, day he was called to the police station on Broadway in this city, where some ten or fifteen men were together in the station; that he was then asked to pick out the man whom he had seen shoot Wojczak. He was asked if he did so, and he answered: “Yes, sir, the lieutenant I think it was, asked me to pick him out, and I went in the crowd and picked out the gentleman. ’ ’ Upon the motion of the plaintiff in error the language “and picked out the gentleman” was excluded by the court. But immediately thereafter this question was asked: “And who did you there pick out as the one you saw fire the shot, out at the mills?” This was objected to by counsel for plaintiff in error, and the objection was overruled and the witness answered, “I picked that gentleman there out.” (Indicating the plaintiff in error.)

It is said on behalf of the plaintiff in error that this ruling was not only erroneous, hut that it was prejudicial to the prisoner. It is conceded, and must be, that the witness might properly answer that he saw the man. who did the shooting at the police station on the same day that the shooting was done, and that that man was the prisoner then on trial. It does not follow that what the witness said at the time is admissible; indeed, the only ground on which it could be claimed that it was admissible would be, that something was said or done by the witness at the time, which called upon the prisoner to say or do something, and this does not appear to have been the case here. We, therefore, think that the fact that the witness pointed out to the police officer the plaintiff in error as the person who did the shooting was erroneously admitted, but we would not reverse the ease for this alone, because it does not appear that there was any prejudice to the rights of the plaintiff in error in the answer given by the witness. The witness had already testified that the prisoner on trial, the plaintiff in error, was the man who did the shooting; that he saw him do it; that he recognized him later on the same day that the shooting was done, and no weight was added to this, by the statement that he pointed him out to the officer.

It is further complained however, that the court erred in its charge to the jury, where this language is used:

“The indictment accuses him of what is known as second degree murder, and I say to you now that there will be three verdicts submitted to you, only three. The one reads: ‘'We, the jury in this case being duly empannelled and sworn, do find the defendant, Yinko Duranec, guilty of murder in the second degree as charged.’ And the other one reads: ‘We the jury in this case, being duly empannelled and sworn do find the defendant, Yinko Duranec, guilty of manslaughter as charged.’ And the third reads: ‘We the jury in this case being duly empannelled and sworn, find the defendant, Vinko Duranec, not guilty.’
“I can not find in the evidence of this case any facts that would warrant my submitting any other verdicts to you. Then the defendant herein is guilty of murder in the second degree or he is guilty of manslaughter, or he should go out of this room acquitted; one of those three things, for I think it would confuse you to submit any further verdicts under the evidence in this case as it stands, and I could not intelligently submit any other verdict.”

In this we hold that the court erred. There should have been submitted to the jury the question of whether the prisoner was guilty of assault and battery, or of assault, as well as the questions whether he was guilty of murder in the second degree, whether he was guilty of manslaughter, or whether he was not guilty. It is true that the court told the jury in express terms that he could not be convicted of either murder in the second degree or manslaughter, unless the evidence established beyond a reasonable doubt the several elements constituting these several offenses. The court properly enumerated each of these elements, and among others, was the proposition that they must find by evidence which established the fact beyond a reasonable doubt, that the man who was shot died as the result of the wound inflicted by the shot. But it was the duty of the court to have charged, that if they should find that defendant was not guilty of murder in the second degree, or of manslaughter, they might find, if the facts warranted it, that he was guilty of assault and battery, defining that offense, or that he was guilty of assault only.

It is said that no prejudice could have come to the plaintiff in error by the omission of the court so to charge. It is further said that, if the plaintiff in error desired to take advantage of the failure of the court to make this charge, a request should have been made for such charge.

"Where the court overlooks a proposition that a party thinks should be given in charge to the jury, the proper course to pursue is to request a charge to be made in accordance with the views of the party requesting, and this for the purpose of calling the attention of the court to the proposition, and not permitting one to remain silent and allow the court, by inadvertence, to omit to charge upon some proposition to which a party might be entitled. But in this case there was no occasion to make any request on this subject for the reason that there was no omission to call the attention of the jury to this subject by inadvertence on the part of the court, or by having overlooked it. This is evidenced by the language used in the portion of the charge complained of, viz: “The defendant herein is guilty of manslaughter, or he should go out of this room acquitted; one of those three things, for I think it would confuse you to submit further verdicts upon the evidence in this case as it stands, and I could not intelligently submit any other verdict.”

Surely, under this language of the court, it would have been idle for counsel for the prisoner to have asked the court to charge as to the right of the jury to find the prisoner guilty Df either of the two lesser offenses, and one is not required to do an entirely idle thing for the protection of his rights.

Our Supreme Court has spoken on this subject in several eases, first in: Stewart v. State, 5 Ohio 242; Sharp v. State, 19 Ohio 379; Heller v. State, 23 Ohio S.t. 582, and Howard v. State, 25 Ohio St. 399.

The syllabus in the case of Howard v. State, supra, reads:

“Under an indictment containing a count for robbery, and a count for assault with intent to commit robbery, the defendant may be acquitted of the higher degrees of the offenses charged, and convicted of assault and battery, or of assault alone; and a refusal of tbe court so to instruct tbe jury is error, for wbicb tbe judgment may be reversed.” Stewart v. State, 5 Ohio followed and approved.

In this case tbe court charged that if they find tbe defendant neither guilty of robbery nor of assault with intent to rob, as charged in tbe indictment, then they should acquit tbe said defendant under said indictment. Tbe court was requested to charge, that if they find the defendant, Charles Howard, not guilty of robbery as charged in the first count of tbe indictment, nor with assault with intent to rob, as charged in the second count of the indictment, then the jury will be warranted in finding him guilty, under said indictment, of assault and battery or of assault, if the facts in the case, in their opinions, warrant the same.

This request was refused.

In the opinion, at page 401, Judge Rex, speaking for the court, says:

“We think the court erred in refusing to charge the jury as requested, and in the instructions given.”

Citing a number of authorities, the court quotes from and approves the language used in Stewart v. State, supra. That language reads: “Where an accusation for a crime of a higher nature includes an offense of a lower degree, the jury may acquit him of the graver offense and return him guilty of the less atrocious.” And then Judge Rex says: “and hence, on the ground that the court could not say that the defendant might not have been prejudiced by the instruction, the judgment was reversed. ’ ’

We are not able to say here the plaintiff was not prejudiced by the failure of the court to charge, that if the fact warrant it, the jury might find the prisoner guilty of an offense less than manslaughter. It is true, as has already been said, that the court properly instructed the jury as to what they must find, in order' to convict of either murder in the second degree, ■or manslaughter, and instructed them that they must be satisfied beyond a reasonable doubt that each of the facts necessary to constitute the crime, for which the prisoner might be convicted, was established. Tet, it may be possible that the jury being satisfied beyond a reasonable doubt, as they well might be from the evidence, that the prisoner shot the man whom he was accused of having shot, the evidence that the wounded man died as a result of the shot is not shown by such direct evidence as the other facts, and though we might not be warranted in saying that the death of the wounded man is shown and that such death resulted from the wound inflicted, and that the jury might be warranted in holding that these facts were shown beyond a reasonable doubt, yet we think it possible that the jury, having no doubt whatever that the prisoner shot Wojczak and that he ought to be punished therefor, might accept less evidence as to his death than they would have required, had they been permitted to find the prisoner guilty of a lesser offense. In any event, as said in the case of Stewart v. State, supra, and in Howard v. State, supra, we can not say that no prejudice resulted to the plaintiff in error because of this failure on the part of the court to charge upon the crimes of assault and battery and of assault.

Complaint is further made that the court failed to properly define to the jury the words “reasonable doubt.” What the court said was this:

“The text-books ana the decisions are full of dissertations upon what constitutes a reasonable doubt, but I have always been of the opinion, after reading all that 1 have been able to find on that subject, and repeatedly hearing judges charge in criminal cases that no other words make those words plainer than they themselves are. I don’t know as I have ever heard anything that made it plainer than those simple words, that the evidence must be so clear and convincing that it leaves no reasonable doubt in your mind that the defendant is guilty, and there are no words in our language that make that plainer than that.”

There was no error on the part of the court in this language. We think the jury, from this language, would understand as well what was meant by the words •'reasonable doubt” as they could well have been made to understand those words.

The result is that for failure to charge, and that under the indictment the prisoner might be found guilty of assault and battery or of assault only, if the facts warranted such finding, the judgment of the court of common pleas is reversed and the cause remanded.

Winch and Henry, JJ., concur.


text:
    TORTS.
    [Cuyahoga (8th) Circuit Court,
    October 19, 1908.]
    Marvin, Winch and Henry, JJ.
    Emil Heyndricks v. H. J. Faudel.
    Release of One Joint Tort Feasor, Releases All.
    Joint tort feasors are not joint debtors, within the purview of Sec. 3166, R. S. (Sec. 8084 G. C.) which provides that one joint debtor may compromise the claim against himself alone, without releasing his joint debtor.
    Error.

      Frank Higley, for plaintiff in error.

      E. J. Finney, for defendant in error.
   MARVIN, J.

Heyndrioks brought suit against Faudel alleging that Faudel sold to George Cooper & Co., a certain grindstone to be by said Cooper & Co. placed in their factory upon a shaft which would cause said grindstone to revolve very rapidly; that when so placed and caused to revolve, plaintiff and other employes would be working at and near to said grindstone and would be likely to be injured if said grindstone should separate and parts of it be thrown off; that said grindstone was defective and unfit to use, as aforesaid, by reason of which defect, while this plaintiff was in the employ of said George Cooper & Co., working at said grindstone while the same was rapidly revolving and being used as the defendant knew it was to be used, said grindstone separated and pieces of same were thrown against plaintiff and injured him, and he prays for damages.

The defendant, by an amended answer, admitted the sale of a grindstone to Cooper & Co., that a grindstone in the factory of Cooper & Co. broke at the time stated in the petition and that plaintiff was thereby injured; alleges that plaintiff’s negligence caused or contributed to his injury and denies all other-allegations of the petition.

For a second and further defense the amended answer avers that after the plaintiff was injured he made a demand on said George Cooper & Co. for compensation for the injury received by him in said accident because of the negligence of said Cooper & Co. in the premises; that said Cooper & Co. paid the plaintiff the sum of $175 which the plaintiff received and accepted in full discharge of all liability of said Cooper & Co. on account of said injury wherefore defendant says plaintiff is barred from prosecuting this action.

To this amended answer the plaintiff replied admitting that he had received said sum of $175 for which he executed and delivered to said Cooper & Co. a written receipt in the following words:

“Cleveland, 0., Aug. 5, 1905.
“Received from R. C. Cooper, Drusilla Cooper and Mary E. Whitelaw, a co-partnership, known as George Cooper & Company, the sum of one hundred and seventy-five ($175) dollars, which I (being of lawful age) acknowledge to be in full accord and satisfaction of a disputed claim against the said R. C. Cooper, Drusilla Cooper and Mary E. Whitelaw, a co-partnership, known as George Cooper & Company, growing out of a bodily injury sustained b.y me on or about March 1, 1905, for which bodily injury I have claimed said George Cooper & Company to be legally liable, which liability is expressly denied, and in consideration o-f said sum so paid, I hereby remise, release and forever discharge the said George Cooper & Company, their heirs, successors, administrators and assigns from any and all actions, claims and demands for, upon or by reason of any damage, loss injury or suffering which heretofore has been, or which hereafter may be sustained by me in consequence of such accident and injury.

Witness my hand and seal the day and date first above written. “Em Heyndricks. ”

The plaintiff says, however, that said sum was paid to him not by said Cooper & Co. but by the Travelers Insurance Company of Hartford, Connecticut.

He says that said insurance company was under contract with said co-partnership, George Cooper & Co., to indemnify them against loss by reason of liability imposed by law upon said co-partnership for damages on account of bodily injury accidentally suffered by any employe of said partnership in its place of business.

He says su-eh payment was made to him after he made claim against said Cooper & Co. as well as the defendant in this action, that they were liable to him for damages on account of said injury; that the release and receipt mentioned was executed in consideration of such payment, and he says that he is not therefore barred from prosecuting the present action.

To this reply the defendant filed a general demurrer, which was sustained, and the plaintiff not desiring to plead further, judgment was entered for the defendant upon the pleadings, to reverse which the present proceedings are prosecuted. The question then presented is whether the court erred in sustaining the demurrer.

First, it may be said that we hold that the effect of the payment made to the plaintiff by the insurance company and the execution of the receipt, is the same as though the payment had been made by Cooper & Co. The reply shows that the insurance company was to pay whatever liability should be incurred by Cooper & Co. on account of such accidents; the receipts was given to Cooper & Co. and had the effect to release it from the liability which' the plaintiff claimed against it. Surely in the absence of fraud in obtaining this receipt, the plaintiff could not have maintained an action for this injury against Cooper & Co. after having received this money and given this receipt.

Our attention is called to Secs. 3162, 3164 and 3166 R. S.

Section 3162 provides that when a partnership is dissolved, any partner may compromise with any creditor of the firm, and such compromise shall be a release for such partner, and for him only.

Section 3164 provides that such compromise made by a single partner shall not be a release to any other partner.

Section 3166 provides in these words:

“The above provisions in reference to partners shall extend to ether joint debtors, who may incidentally compound or compromise for their joint indebtedness, with the like effect in reference to creditors and to joint debtors of the individuals so compromising, as is above provided in reference to partners.”

We understand this to apply only to cases where the indebtedness is upon contract or judgment, and does not include cases where, whatever liability exists, is because of a joint tort.

In Spencer v. Spencer, 1 O. S. C. D. 403 (35 Bull. 4), it is said that the release of one of two joint wrongdoers upon a joint judgment against the two does not release the other, but this is put upon the ground that when the claim is reduced to judgment it becomes a debt so as to bring it within the statute.

The word “debt” is defined in Anderson’s Law Dictionary as: First, “A liquidated demand”; “a sum of money due by certain and express agreement”; “ a sum of money due by contract,” etc. He, however, gives further definitions, including a sum of money due upon a judgment, and a sum of money owing upon a contract, express or implied, whether the same be due or nor.

We hold that one who commits a tort is not a debtor to the party injured, so long as his obligation is not liquidated by judgment or otherwise.

It is, however, urged that if the one who is injured by the wrongdoing of others or another, makes a claim against two as joint tort-feasors, and compromises with and releases one, it will not release the other, provided that he with whom the settlement was made was not in fact liable for the injury.

In support of this contention attention is called to cases in several of the American states, among them being:

Missouri, K. & T. Ry. v. McWherter, 59 Kan. 345 [53 Pac. Rep. 135], where the doctrine' is distinctly held. Also Turner v. Hitchocock, 20 Iowa 310, and Kentucky & I. Bridge Co. v. Hall, 125 Ind. 220 [25 N. E. Rep. 219].

Thomas v. Railway, 194 Pa. St. 512 [45 Atl. Rep. 344], is said by plaintiff in error to support tbe same doctrine, but an examination of the case does not make it clear that it does so hold. This case was decided in 1900; the same court in an earlier case distinctly held the contrary, as shown later on in this opinion. The contrary doctrine is held in other eases and in the ease of Tompkins v. Railway, 66 Cal. 163 [4 Pac. Rep. 1165], some very forcible language is used, which to me, speaking only for myself, is convincing. On page 167 of this opinion this is said:

“It is urged by counsel for appellee that the rule only applies where the money is paid by, or the release executed to, one who is himself actually guilty of the wrong or negligence. If it be conceded that a release to or receipt of money in alleged satisfaction from one not himself a trespasser, will not discharge those actually guilty, the question still remains: can the plaintiff, under the circumstances, be permitted to deny that the Sutter Street Railroad Company was guilty of negligence directly contributing to the injuries by her received? Reading the release and stipulation in the record, it is plain the $550 was paid in settlement of the action pending, insofar as the cause of action alleged constituted a claim against the Sutter Street Railway Company.
“The compromise of an asserted claim does not necessarily involve an admission on the part of him against whom the claim is asserted, that the claim is well founded. But one who, having commenced an action against another, has received money in consideration that the action shall be dismissed, or that any judgment he may recover shall not be enforced, ought not to be permitted to deny that he received the money in satisfaction of a valid demand. The defendant paying the money may subsequently say: ‘I did not, and do not, admit that I ought to have paid anything; I was willing to buy my peace. ’ But the other party ought not to be allowed to deny that he had any right to the money, the payment of which he had induced under pain of the prosecution of an action already commenced. He should not be permitted to say, with any beneficial result to himself, ‘I pursued the defendant falso clamore, and I took his money by way of settlement of a pending action in which I never could have recovered. ’ Shall it be said that plaintiff has not received compensation for the injuries she sustained, because she did not choose affirmatively to prove that the negligence of the party from whom she received the money contributed to the injuries ? ’ ’

In the case of Seither v. Traction Co. 125 Pa. St. 397 [17 Atl. Rep. 338], in the opinion of the case this language is used:

“In the opening sentence of the printed argument in this case we find the following:
“ ‘The evidence offered by the plaintiff proves that while riding in a car of the People’s company he was injured by a collision due entirely to the negligence of the traction company; the carrying company and its agents being absolutely without fault. ’ At the time this paragraph was written the plaintiff had in his pocket the sum of $6,000 which he had received from the company which he now says was ‘absolutely without fault.’
“A case so unique as- this might be supposed to stand alone in the books. Tompkins v. Railway, 66 Cal. 165 [4 Pac. Rep. 1165], is, however, its exact counterpart.”

The California case referred to is that from which quotation has been made in this opinion.

In the case of Thomas v. Railway supra, no mention is made of this case of Seither v. Traction Co., but whatever holding we might make on this point, if the case required that it be decided, we hold that the plaintiff in this case, as the pleadings stand, is barred by the settlement made with Cooper & Co., for the reason that, under all the authorities, in order to recover, he must show that Cooper & Co. were not in fault. Since he must show this by evidence he must allege it in his pleadings. This he had not done and it follows that the judgment of the common pleas was right and it is affirmed.

Winch and Henry, JJ., concur.


text:
    LIBEL AND SLANDER.
    [Ashland (5th) Circuit Court,
    October, 1908.]
    Marvin, Winch and Henry, JJ.
    Lewis G. Mengert v. News Printing Co.
    1. Witness not Permitted to State Understanding Whom Meant in Newspaper Article not Mentioning Name.
    In an action for libel, upon a newspaper article which does not mention the plaintiff’s name, it is proper to sustain an objection to a question ashed of a witness as to who he understood was referred to in the publication.
    2. Terming Transaction Libel, all Facts Set Out Showing not Offense, not Libelous.
    An action for libel can not be maintained upon a newspaper article which terms a certain transaction a larceny, where all the facts of the transaction are truthfully set out and show that it is Hot a larceny.
   MARVIN, J.

Suit was bro-ugbt by Mengert charging the News Company with having printed libelous matter concerning him. Three distinct publications, claimed to be libelous, are charged in the petition. In neither the first or second causes of action is the name of Mengert mentioned in the matter published. Whatever else may be said of the charge of the court, it was properly charged, that whether the matter relied on in either of these causes of action was libelous or not, if it was published of and concerning the plaintiff, the defendant could not be held liable unless it were shown that the publication was of and concerning him. The result of the. case was a general verdict for the defendant. The motion made for a new trial in the case did not specify, as a ground of the motion, that the verdict was against the weight of the evidence, so that the trial court was not called upon, by this motion, to review the evidence, nor are we called upon to review a question not presented to the trial court. If the jury found, therefore, that the two publications set out respectively in the first and second causes of action were not published of the plaintiff, the verdict as to those two was right, because as is said in the syllabus of the case of Sites v. Haverstick, 23 Ohio St. 626:

“Where the jury, by their verdict ‘find the issues joined in the cause’ in favor of one of the parties, this is to be taken as a verdict finding each and all of the issues therein for such party.
“In such case, if the issues are such that a finding of either of them in favor of the successful party entitles him to the judgment rendered, the judgment will not be reversed for error in the instructions of the court relating exclusively to the other.”

This ease has been followed and approved from the time it was decided up to the present time. See McAllister v. Hartzell, 60 Ohio St. 69 [53 N. E. Rep. 715]; Todd v. Wick, 36 Ohio St. 370, and Beecher v. Dunlap, 52 Ohio St. 64 [38 N. E. Rep. 795].

This being true, and as has already been said, we not being called upon to review the evidence, it may well be that the jury found as to these publications that they were not published of the plaintiff, and the result is that the judgment as to these causes of action must be affirmed, unless we find that the court erred to the prejudice of the plaintiff in its rulings, upon evidence, on the question as to whether the publications were of and concerning the plaintiff. A careful inspection of the bill upon the ruling in this regard fails to disclose such error. It is true that Judge Brueker, and perhaps others, were asked whom they understood to be meant by these publications, and witnesses were asked who was referred to in the publications, in their opinion, and it was offered to show that several witnesses, of whom these questions were asked, would answer, that they understood and thought, from the general talk in the city of Mansfield, where the publications were made, and where the plaintiff lived, they referred to him. This evidence was excluded and we think properly excluded. Authorities on both sides of this question are cited in 25 Cyc. 493, but we think the better rule is to exclude the evidence, as was done in this case.

Questions were asked of the plaintiff as to a conversation he had with the city editor of the paper published by the defendant, and it was proposed to show what was said to this city editor by those in authority on the paper. We think this was properly rejected. This evidence would be hearsay. If it was desired to show what those in authority on the paper said about it, the party to whom they said it or a party who heard it said might properly be called upon and inquired of.

Coming now to the third cause of action. There can be no doubt that this publication was made of and concerning the plaintiff, as well as others. The name Mengert appears in the publication, and the court said, on the trial, in substance, that no evidence need be introduced to show that this was meant for the plaintiff, as it showed that upon its face. The language of this publication, as charged in the petition and as shown by the evidence, reads:

“ ‘From the above it is admitted that all of said $35,000 was not paid into the county treasury.’ We herewith hand you $18,421, being the net receipts received from the proceeds of said litigation.
“Thus over their own signatures is the larceny of the taxpayers money of the county, admitted by Brucker, Mengert (meaning the plaintiff) and Douglass. The action of the state auditor in appointing an expert to examine the books in the auditor’s and treasurer’s office is understood to be upon the opinion of the attorney-general, after seeing these published statements of Brucker, Mengert (meaning the plaintiff) and Douglass, together with the previous newspaper statements concerning this unparalled larceny of the people’s money.”

The petition avers that this was false and malicious, and was published for the purpose of injuring the plaintiff in his profession as a lawyer, and says, speaking of this publication, “meaning thereby that the plaintiff was guilty of the crime of larceny in his profession.” On this the court charged the jury that unless they found that this was spoken of the plaintiff in his profession and that damages resulted to him in his profession, because of the publication, the plaintiff could not recover on this cause of action.

Without passing upon the question of whether, if this publication were libelous, the plaintiff could recover even though the damages which he suffered were those not growing out of his professional character, but resulted to him generally, we are of the opinion that there was no prejudice to the plaintiff in this, for the reason that the publication did not charge the plaintiff with larceny. It charged, in substance, that the plaintiff and his associates retained out of the $35,000 collected for the county treasurer all of said sum, less $18,421. This statement was admittedly true, but the publication speaks of it as a larceny. This, plaintiff insists, it was not. But whatever it was, the exact facts were stated in this publication, and it could not have been understood by anyone who heard it as being other than the published fact showed it to be. It was not a larceny, nor did the characterization of it as such change its character in any wise. In Brown v. Myers, 40 Ohio St. 99, it is said in the syllabus.:

“An action of slander can not be maintained for words which impute a crime where, from all that was said at the time the words were spoken, it appears that the words had relation to a transaction that was not criminal, and that they must have been so understood, by the hearers. ’ ’

We find, therefore, that upon ther questions presented in this record there was no error to the prejudice of the plaintiff in the charge, nor in any other part of the record.

In this holding it is not to be understood that we make any holding as to whether rulings on questions of evidence other than those to which attention is called, nor as to the charge except as attention has been called to the charge, are erroneous, but only whether the matters pointed out were erroneous rulings or errors in the charge. They were not to the prejudice of the plaintiff, and the judgment is therefore affirmed.

Winch and Henry, JJ., concur.


author: HOUCK, J.

text:
    COVENANTS — DEEDS—EVIDENCE.
    [Delaware (5th) Court of Appeals,
    May Term, 1916.]
    Shields, Powell and Houck, JJ.
    William McKenzie et al. v. George C. Buchamann et al.
    1. Covenant of Warranty Against Encumbrances May be Modified by Parol Evidence.
    In an action for damages for breach of covenant against encumbrances, parol evidence is admissible which in any way tends to prove that after execution of the deed containing said covenant, and before its delivery to the grantees, it was agreed between them and the grantor that the grantees should assume a certain unexpired lease constituting a lien on the premises sought to be conveyed, and that but for such agreement the grantor stated he would declare the deal off and destroy the deed.
    2. Modification not Inconsistent with Covenant of Warranty against Encumbrance.
    A promise to assume a lien, which is an encumbrance upon the property conveyed, is not in conflict with or inconsistent with the covenant of warranty against encumbrance contained in the deed, but is in effect a discharge of the grantor from liability on the covenant of warranty so far as said lien is concerned.
    [Syllabus by the court.]
    Error.

      Marriott, Freshwater & Wickham, for plaintiffs in error.

      George C. Snyder, for defendants in error.
   HOUCK, J.

This is a proceeding in error seeking to reverse the judgment of tbe common pleas court of Delaware county, Ohio. A jury having been waived the case was submitted to the trial judge on the pleadings and evidence. The facts in the ease here submitted are contained in the journal entry of the judgment and finding of facts and conclusions of law by the trial judge in the court below, and are before this court for review.

The parties here stand in reverse order from where they stood in the court below. The suit in the common pleas court was brought by George C. Buchamann et al. against William McKenzie et al. to recover $300 damages for an alleged breach of covenant against an encumbrance in a deed for certain real estate conveyed by defendants to plaintiffs. The court below found for the plaintiffs, and a judgment for $300 and costs was entered in favor of the defendants in error, the plaintiffs below. PlainUiffs in error ask for a reversal of this judgment for the reason that the court erred in excluding certain testimony and not receiving and considering the same, and that the judgment is contrary to law. The following facts, as shown in the finding of facts by the trial judge, were ruled out and not considered by the court below, and to this the defendants below escepted:

‘ ‘ There was no exception in the deed as it was prepared as to the lease of Alkire and Sands. Alkire and Sands had a lease on the east room they occupied, and which would not expire until November 15, 1915. At the time the deed was read, and before the delivery of the deed, the question arose as to the lease of Alkire and Sands. The plaintiffs desired to know whether they could have possession of the room occupied by Alkire and Sands, and were then informed by McKenzie, defendant, that Alkire and Sands had a right to occupy the room until November 15, 1915, and- that unless the plaintiffs would accept the deed with Alkire and Sands’ tenancy, and take the property, subject to said lease, that the deed would be destroyed and the deal called off. Thereupon it was agreed by plaintiffs, before the delivery of the deed, that they would accept the deed and take the property subject to Alkire and Sands’ lease, and it was then suggested that the deed be changed and that there be embodied in it an agreement and exception as to Alkire and Sands’ lease, but the deed having been before that time signed by all the parties, and their wives not being present, it was agreed that plaintiffs would accept the deed as written, in order to save re-writing and re-execution, and that they would accept the property subject to the Alkire and Sands’ tenancy.

“These negotiations were oral, and the conversation took place before the delivery of the deed. Upon the agreement by the plaintiffs that they would accept the property and pay the price of $7,800 subject to the encumbrance of Alkire and Sands’ lease without changing the deed; the deed was then delivered to plaintiffs and the consideration was paid, and the court finds the facts to »be that the plaintiffs accepted said deed as written, and without change subject to the Alkire and Sands’ lease, it having been stated to plaintiffs before the deed was delivered that unless they would so accept the property with the encumbrance of Alkire and Sands thereon the parties would destroy the deed and the trade would be off; and the court finds from the evidence that it was stated orally by plaintiffs that they would accept the deed and pay the price subject to Alkire and Sands’ lease, and it was not necessary to put that exception in the deed, and the court finds that the trade was then consummated and the deed delivered without the exception being written therein.”

It will be conceded as a well settled principle of law that parol evidence can not be received to vary, contradict or change the terms of a written contract, because it is presumed that all of the provisions and terms of the contract are embodied therein; but in the ease at bar the deed had been written, signed, witnessed and properly executed, but had not been delivered, and before its delivery, as disclosed in the finding of facts, the plaintiffs below agreed to waive the covenant of the warranty as to the lease in question and accept the property described in the deed subject thereto. Quoting from the finding of facts, “it was agreed that the plaintiffs would accept the deed as written, in order to save re-writing and re-execution, and that they would accept the property subject to the Alkire and Sands’ tenancy, it having been stated to plaintiffs before the deed was delivered that unless they would so accept the property with the encumbrance of the Alkire and Sands’ lease thereon the defendants would destroy the deed and the trade would be leelared off; and then the plaintiffs said they would accept the leed subject to said lease and pay the price, and the deed was hen delivered and accepted.”

We can not weigh the evidence in the present case and are iound by the facts as contained in the finding of facts. If a jill of exceptions containing all the testimony from the trial below bad been prepared and presented to us for review, we are not prepared to say what conclusion we would have reached as to the weight of the testimony in question.

It will be observed that the testimony under consideration was concerning what occurred at the time of, and was offered to establish a contract that was claimed to have been made and entered into between the covenantors and covenantees after the execution of the deed in question and before its delivery. The facts disclose that the deed would not have been delivered by the covenantors to the covenantees, but would have been destroyed, if the covenantees had not agreed to accept the same and assume the lease in controversy.

Under these circumstances we can not conceive of a rule of evidence so far reaching and so .inequitable as to preclude the admissibility of such testimony. We therefore hold that parol evidence was admissible in the case at bar that in any way tended to prove that after the execution of the deed which contained covenants against encumbrances, and before its delivery to the grantees, it was agreed between them that the grantees should assume the lease in question, which was a lien upon the premises conveyed. .

The weight to be given such evidence was to be determined by the trial judge to whom the case had been submitted, a jury having been waived by the parties in this case. We think in the present case that a parol agreement entered into between the grantors and grantees, wherein the grantees were to assume the lease, was the moving cause of consummating the deal.

Let us inquire: Does proof of a promise to assume a lien, which is an encumbrance upon the property conveyed, conflict with or is it inconsistent with the terms of the conveyance? Certainly not. Can there be any doubt, in a suit for a breach of a covenant against an encumbrance, it could be shown by proper evidence that a lien (a lease in this case) had been assumed by the grantee after the execution of the deed and before its delivery? We think not. The effect of the promise, which was proved by parol evidence in this ease, was only to show that the grantees had agreed to assume the lease before the delivery of the deed, and thereby the lien on the property conveyed had been discharged so far as the grantors were concerned, and by reason thereof they were released from any liability on the covenant of warranty as to the lease.

For the reasons given we are of the opinion that the judgment of the court below should be reversed. Judgment reversed, and the cause is remanded to the common pleas court for a new trial.

Shields and Powell, JJ., concur.


text:
    BASTARDS — WILLS.
    [Knox (5th) Court of Appeals,
    May 20, 1916.]
    Shields, Powell and Houck, JJ.
    Bertha Owens et al. v. Etta Humbert, Exrx.
    Statutory Phrase, “Child or Other Relative," does not Include Children of Illegitimate Child of Testator but Devise Lapses on Death of Latter Preceding Testator notwithstanding Intention to Include Children of Devisee.
    A devise to an illegitimate child, whose decease occurs prior to that of the testator, lapses on the death of the testator, and does not pass to the children of said illegitimate child, notwithstanding the will indicates an intention on the part of the testator that it should pass to the children of the child of his bounty.
    [Syllabus by the court.]
    Error.

      L. C. Stillwell, for plaintiffs in error.

      Moore <& Sperry and Columbus IS wait, for defendant in error.
   HOUCK, J.

This is a proceeding in error prosecuted from the common pleas court of Knox county, Ohio, seeking to reverse the judgment of that court in its finding that a certain legacy of $500 which had been given to Elizabeth Owens, the mother of the plaintiffs in error, under item 7 of the last will and testament of David K. Blyston, deceased, had lapsed. Item 7 of said will reads as follows:

“Upon the death of my said wife I desire and direct my executrix to pay over and deliver to Ester Humbert, daughter of Etta Humbert, the sum of five hundred dollars; to D. K. Bly Mavis, one thousand dollars; to W. H. Blyston, my nephew, five hundred dollars; to Flora Heater, my niece, five hundred dollars; to Elizabeth Owens, five hundred dollars.”

This cause was submitted to the court below on an agreed statement of facts, which the court found in its judgment and decree to be true, the agreed statement of facts being as follows:

“First. It is agreed that on the 10th day of March, 1914, David K. Blyston died, leaving a will whereby he appointed the plaintiff (Etta Humbert, executrix) as the sole executrix, and which will was admitted to probate in the probate court of Knox county, Ohio, as alleged in the plaintiffs’ petition.
“Second. It is agreed that a true and correct copy of the last will and testament of David K. Blyston is attached to the plaintiffs’ petition.
“Third. It is agreed that Elizabeth Owens, named in said will, was the illegitimate daughter of the said David K. Blyston.
“Fourth. That the said Elizabeth Owens died on or about the 8th day of January, 1913, before the death of the said David K. Blyston.
“Fifth. That the sa,id Elizabeth Owens left surviving her and the said David K. Blyston her children: Bertha Owens, Stella Bell, and Harry Owens.
‘ ‘ Sixth. That the said Elizabeth Owens was married under the name of Blyston, and that her said father, David K. Bly-ston, was present at her wedding and gave her away in marriage.
“Seventh. That the said David K. Blyston frequently wrote letters to the said Elizabeth Owens and always addressed her in said letters as ‘Dear Daughter.’ That the said Elizabeth Owens always addressed him in her letters as ‘Dear Father.’
“Eighth. That the said David K. Blyston frequently visited the said Elizabeth Owens and her family.
“Ninth. That at the time of her last sickness he went to visit her at the hospital in Mt. Vernon, and there arranged for her care and comfort.
‘'Tenth. That the said David K. Blyston was present at and attended the funeral of the said Elizabeth Owens, and manifested great sorrow and grief at her death. ’ ’

It is contended by defendant in error that by reason of the fact that Elizabeth Owens was the illegitimate child of testator, and that she departed this life before the testator, although she left issue surviving her, that said $500 legacy given to her in said will thereby lapsed, and is not saved by any provision of Sec. 10581 G-. C., which is as follows:

“When a devise of real or personal estate is made to a child or other relative of the testator, if such child or other relative was dead at the time the will was made, or dies thereafter, leaving issue surviving the testator, in either case such issue shall take the estate devised as the devisee would have done, if he had survived the testator. If such devisee leaves no such issue, and the devise be of a residuary estate to him or her, and other child or relative of the testator, the estate devised shall pass to and vest in such residuary devisee surviving the testator, unless a different disposition be made or required by the will.”

It being admitted that Elizabeth Owens was the illegitimate child of testator, and that she left children surviving her and the testator, was the said Elizabeth Owens such child or other relative as is contemplated by the provisions of said statute, and by reason thereof does the legacy in question go to and vest in her children ? This brings us to the real problem to be solved in this ease, namely: What is the legal meaning of and the proper construction to be placed upon the words “child or other relative,” as used in See. 10581 G-. C.?

As a general rule words and phrases used in the statute are to be taken in their ordinary and popular sense, unless it plainly appears from the context or otherwise that they were used in a different sense. In other words, in the construction of statutes words and phrases used therein which have two significations should ordinarily receive that meaning which is generally given to them in their common use. The words, phrases and sentences of the statute are to be read in their ordinary sense, unless so construing them will lead to what would seem to be an absurdity. If we apply this rule to the ease at bar, wbat is the generally accepted meaning of the word child? When one speaks of his child he means a legitimate child: one born in lawful wedlock. Does Elizabeth Owens or her surviving children come within the saving clause of the statute under consideration ? Certainly not. While the general policy of the law in providing for a disposition of property is to keep it within the blood of the ancestor, yet if the language of the statute, “child or other relative,” be given its natural construction, we think that the word “child,” in contemplation of law as used in the statute, means legitimate child, and that the term “other relative” applies only to persons of the same kind of relationship to the testator as is sustained by a child. That is to say, if the child in the instant case, being illegitimate, and not being entitled to inherit from David K. Blyston if he had died intestate, then it necessarily follows that the children of Elizabeth Owens, deceased, although they are of the same blood of the testator, yet they can not attain any greater rights in the property of David K. Blyston than the mother possessed. The mere fact that the legatee and her children who survive her are related by blood to the testator in no way enlarges the meaning of the term “other relatives,” because the legal rights of the children in this case to take the legacy in question are to be determined by the rights of the legatee. If upon the death of the legatee the legacy lapsed by operation of law, then the surviving children of the legatee can not properly claim the legacy. While it is true that the testator and legatee here are of the same blood, yet the legatee having been bom out of lawful wedlock is what is known in law as a bastard, and since a bastard at common law was filius nullius, and therefore kin to nobody, and had no ancestor from whom any inheritable blood could be derived, it therefore follows that the only in-, heritable right a bastard has to take property is made so by statute; and we hold that the words, “child or other relative,” as used in the statute now under consideration, are within the well known and recognized rale of construction that prima facie the word child or children, when used in the statute, means legitimate child or children, and that bastards are not within the meaning of the terms, and that child or children, or any other terms of kindred when used in the statute, mean legitimate children or kindred only.

The intention of the testator is said to be the pole-star to guide and control 'the court in the interpretation of wills. If we could apply that rule in this case and in addition thereto consider the facts as contained in the agreed statement of facts, we are free to say that from the language used in the will, the facts as contained in the agreed statement of facts, and all the surrounding circumstances, there is no doubt in our minds but that David K. Blyston meant and intended that this $500 legacy should be paid to his child, Elizabeth Owens, if she survived him, and if not then to her children. By his conduct • and acts, as disclosed in the agreed statement of facts, the testator considered her his child, and the object of his bounty, and felt under a moral obligation to care for her and the objects of his and her love and affection. Yet, notwithstanding all this, the intention of the testator must in this instance be set aside and held for naught because it is in conflict with the positive provision of a statutory law, namely, Sec. 10581 6. C. Therefore the responsibility of not carrying out the intention of the testator as to the payment of the legacy in question does not rest with the court, but with the residuary legatee.

In view of what we have already said it therefore follows that the court can do but one thing, and that is affirm the judgment of the common pleas court, which we now do.

Judgment affirmed.

Shields and Powell, JJ., concur.


text:
    JUDICIAL SALES.
    [Cuyahoga (8th) Circuit Court,
    November 4, 1908.]
    Marvin, Winch and Henry, JJ.

      Valentine Christ v. Jane Lay, Admrx.
    Purchaser in Possession After Judicial Sale Set Aside Liable for Use of Premises.
    One who goes into possession of premises, purchased at an administrator's sale of lands to pay a decedent’s debts, is liable for the value of the use of the premises, if the sale is after-wards set aside.
    Error.

      Beavis & Johnson, for plaintiff in error. Klein & Karris, for defendant in error.

      Affirmed, no op., Lay v. Christ, 82 O. S. 417.

   MARVIN, J.

Samuel Lay was a resident of Cuyahoga county, Ohio, and died testate in 1885. At the time of his death he was the owner of a small farm in the village of Olmsted Falls, in this county. His will was duly admitted to probate and the widow of the testator elected to accept the provisions made for her in the will in lieu of her dower.

The widow is Jane Lay, who, as administratrix, is defendant in error here.

By the second and third items of said will it is provided:

“I give, devise and bequeath to my wife, Jane Lay, and in lieu of her dower, the sum of ten dollars ($10.00) per month, for and during her lifetime, to be paid to her by the executor hereof out of my said estate, to be paid yearly, or oftener if necessary, so long as she lives and there is any of my said estate to pay said amount with, and also that my said wife Jane Lay shall have a suitable home in the house in which she now lives; also in the village of Olmsted Falls, state of Ohio, so long as she lives; also that she have all of the household goods and effects now in the house situated in Olmsted as aforesaid.
“I give, devise and bequeath to my grandson Frank R. Lay, my homestead, consisting of about 19 acres of land, and buildings, thereon situated, in Olmsted Falls village, Cuyahoga county, Ohio, or so much of the same as there remains after the decease of my said wife and the stipulations mentioned in the item second shall have been fully performed and he shall have paid to my son John Lay the sum o'f one hundred dollars, and also paid to each of my two sons Joseph and Samuel Lay, each fifty dollars, as the amounts which I direct them to have out of my said estate.”

By the fifth'item of the will, Frank R. Lay, the grandson mentioned in the third item, is named as the executor of the will. He accepted the trust and for several years held the appointment as executor, but never completed the settlement of the estate. For a few years he paid to the widow, Jane Lay, the $10 per month provided for her by the second item of the will, and for several years after the death of the testator the widow lived on this farm. In 1889, the executor having moved out of the state of Ohio, resigned this trust as executor, and Jane Lay, the widow, was appointed to administer the estate. Before 1889, the widow had removed from the farm and has never lived there since, nor has anyone lived upon the premises since she left them, who was there by authority from any member of the Lay family.

After the appointment of Jane Lay she filed a petition in the probate court for authority to sell this real estate to pay the debts of the testator. On this petition such proceedings were had in the probate court that the premises were sold to the plaintiff in error in June, 1902. Thereafter, proceedings were had to set this sale aside, and finally, by a judgment of this court on the-day of- 1906, the sale was set aside, the court holding that it was not lawfully made. Before the sale to Christ, already named, he had purchased the premises at tax sale, and thereafter paid taxes upon the premises until he purchased at the administrator's sale. After this purchase, he continued to pay the taxes until the sale was set aside. Thereafter, the taxes being again delinquent, the premises were again sold at tax sale and Christ again purchased. Neither of these tax sales gave him any valid title to the premises, but after the last purchase at tax sale, he paid the taxes for a considerable .time. After the sale by the administrator, Christ went upon the premises, as he had a right to do, and to the extent that they were occupied by anybody who had any claim or right to them, they were occupied by him until the administrator’s sale was set aside. This was for a period of three years and eight months. During this time he made very little use of the premises, getting very little income from them, but he had the possession, and during all that time the right of the possession as against all the world. He made some repairs upon the premises, and expended some money therefor. After the sale was set aside he never exercised any rights of ownership of the property, nor had he any right to exercise ownership. Some time after the administrator’s sale was set aside a new petition was filed by her in the probate court for authority to sell, and Christ was made a defendant in that proceeding, which was proper, because of his rights under the tax sales. The petition in the last named action set out as a distinct cause of action against Christ that he had had the use of the premises for some tweleve years, and that the rent therefor was worth $-per year, making in the aggregate $-, which the plaintiff claimed to recover against him. Manifestly in a proceeding to sell real estate the administrator could not recover a judgment for money against the party who owed her in any capacity, but the allegations in this cause of action may be properly considered in connection with Christ’s rights in the premises. Christ, in his answer, set up that he had a lien on the premises by reason of his payment of taxes and the repairs which he had made thereon, and denied liability for the use thereof. The case having been tried in the probate court was appealed to the court of common pleas and there tried, with the result that the court found that Christ was liable for the use of the premises for the whole time, after his purchase from the administrator. This is manifest from the amount found by the court against him in this record. In this the court erred. Christ had a lien upon the premises for whatever permanent improvements he had put upon them while holding under the administrator’s sale, and for all the taxes be bad paid at any time. As against this lien be is chargeable with the value of the use of the premises from the time he purchased them at the administrator’s sale, until the time when that sale was set aside. Manifestly, under the evidence, this was not enough to offset entirely the amount of his lien. The court, therefore, erred in finding that there was nothing due to Christ under his lien, over and above the amount which should be charged against him for the use of the premises. We hold that Christ was chargeable with the value of the use of these premises for the time specified, for the reason that he exercised acts of ownership over them, as he had a right to do for the three years and eight months that he held them, under the administrator’s sale, and if he failed to obtain any income therefrom, the fault was his own.

In making this finding we do not hold that the administrator was ever entitled to the possession of the premises; Mrs. Jane Lay had, under the will, a right to a home on these premises. She had no other right in the premises, she having waived her dower. The executor of the will, as such, had no right to the possession of these premises, but Frank R. Lay, as devisee, had a right to the possession; they were devised to him; he was the owner; his title was subject to the claim of the widow for the annuity provided for her, and subject also to the rights of the creditors of Samuel Lay to have the premises sold for the payment of debts, but the ownership and right of possession were all the time in him.

The judgment of the court of common pleas is reversed for error in allowing, as against the lien of Christ, the value of the use of the premises for a longer time than the period between the date of the administrator’s sale, and the date when that sale was set aside.

Winch and Henry, JJ., concur.


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    CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    March 1, 1910.]
    Marvin, Winch and Henry, JJ.

      W. M. Pattison Supply Co. v. A. J. Harvey.
    Illegal Prohibition on Sale of Corporate Stock.
    It is not a good excuse for refusal to transfer certificates of stock on the hooks of a corporation, that the transferrer of the stock has failed to comply with a by-law of the company providing that no stock shall be transferred to a person not a stockholder until the board of directors has been offered an opportunity to purchase the stock at the value fixed at the next preceding annual meeting of the stockholders, plus 6 per cent, from the date of said meeting. The by-laws of a corporation can not legally prohibit or limit the right of a stockholder to sell his stock.
    Error.

      Smith, Taft & Arter, for plaintiff in error.

      Frank Higley, for defendant in error.

      Affirmed, no op., Pattison Supply Co. v. Harvey, 82 O. S. 390.

   MARVIN, J.

This is a proceeding in error brought here seeking to reverse the judgment of the court of common pleas. The facts are these, in brief:

Harvey filed a petition in the court of common pleas, setting forth that he was the owner, by assignment from another, of fifty shares of stock in the Pattison Supply Co., which is a corporation duly organized, incorporated and doing business under the laws of the state of Ohio, that he presented the old certificates to said company and demanded a transfer of the stock and issuing of new certificates or certificate to him, which was refused. It is conceded that he presented the old certificates, and that the company refused to transfer the stock, and the reasons given are, first, that the stock for which Harvey holds certificates was originally issued to one A. M. Keller, who subsequently died, and the administrator of his estate, one Norman S. Keller, never made the sale of the stock to one L. H. Wain, as was alleged. Secondly, it is urged, the sale was not authorized by law, although it was ordered by the probate court to be made, because of certain irregularities that are set out in the administration, among others, that there was no appraisement.

It is sufficient to say that the probate court did have jurisdiction and affirmed the sale.

In the suit of Dreher against this corporation, the same question was necessarily involved, for he at that time claimed to be the owner of stock of this company, and it was there held that he was the owner of the stock. After the decision in that case Wain, who held the stock in trust and who had the legal title thereto, sold and assigned the same stock, fifty shares, to the plaintiff below in this action.

It is sought to justify the refusal to issue the new certificates by reason of a by-law. It was also denied in the answer that the sale was made in good faith and for value but the case was referred to a referee who found the facts to be, upon the evidence, that the sale was for value, so that, without question, the plaintiff below in this action is the owner of this stock. Indeed that was conceded in the argument, but, it is said, by reason of Art. VIII of the by-laws of the corporation, the plaintiff was not entitled to have the transfer made. That by-law reads:

“Transfers of stock can only be made on the books of the company, in person or by proxy, in the presence of the president, or secretary, on surrender of the previous certificates and payment of all dues on the same, and the further provision that no stock should be transferred to any person not a stockholder until the board of directors should have been notified in writing of such intent and shall have an option for a reasonable time to purchase said stock at the value determined at the next preceding annual meeting of the stockholders, with 6 per cent interest from the date of the meeting added thereto. ’ ’

This stock was not offered to the board of directors, nor had there been any value fixed on the stock at the annual meeting of the directors next preceding the time when this was sold, nor had there been any opportunity given to fix any value. But whether that was so or not, we are of opinion that under Sec. 3254 ft. S., this plaintiff was entitled to have the stock transferred. This section reads:

“Stockholders shall be entitled to receive (certificates) of their paid up stock in the company; and the president and secretary of the company shall on demand, execute and deliver to a stockholder a certificate showing the true amount of the stock held by him in the company. And it shall be the duty of the directors of such corporation, when organized, to keep a record of all stock subscribed and transferred, and of the secretary or recording officer of such corporation to register therein all subscriptions and transfers of stock, ’ ’ etc.

This man had bought the stock, was the owner of it, and under the statute was entitled to have it transferred, and this by-law could not prevent his right to have it transferred.

In 10 Cyc. 359, this is the test, as there laid down:

“As a general rule by-laws which operate in restraint of trade are void, as against public policy, under the principles of the common law; and this is also true of municipal ordinances, and especially of municipal ordinances tending to create monopolies, excluding, of course those cases where the grant of exclusive franchises is necessary, as in the case of gas light companies, water supply companies and the like.”

Also:

‘ ‘ Shares of stock in a corporation being personal property, and the jus disponendi being incident to the very nature of property, it follows that a by-law which undertakes to prohibit a shareholder from freely transferring his shares of stock is originally void, as being in restrain of trade and against common right. ’ ’

We are cited to 2 Cook Corporations Sees. 622c and 622d. Section 622c reads:

“A stockholder has a right to sell his stock at any time and to whomsoever he pleases without regard to other stockholders. Even though he owns a majority of the stock there is no principle of law obliging him to provide for the sale of others’ stock when he sells his own. Hence contracts are often entered into between a portion or all of the stockholders of a corporation to the effect that they will hold and sell their stock together. Such a contract is legal. The difficulty with such a contract, however, is that upon a breach of it only the actual loss suffered and not the full value of the stock of the injured party is recoverable in damages. Hence, such a contract should contain a provision obligating the selling stockholder to buy the stock of the others.
“Another form of contract is to the effect that before any of the stockholders sell their stock they shall first offer it to the other stockholders. This kind of a contract is also legal and will be enforced by the courts.
“An agreement, however, between the stockholders of a corporation that no one of them will sell, assign or dispose of his stock without first having given the other parties to the agreement an opportunity to purchase, does not disable a party from transferring a legal title to the stock without the consent of the other parties and in violation of the agreement, and this although the transferree was cognizant of the agreement at the time of the transfer. It is a breach of contract, but the remedy is usually at law for damages. Such also is the rule as to a contract that a stockholder before selling his stock to others, shall first offer the stock to the corporation itself. A personal agreement between the incorporators, promoters and proposed subscribers to the said stock of a proposed corporation, by which agreement the corporation is to have the first right to buy the stock of any one who wishes to sell, does not prevent a sale by a stockholder without offering the stock to the corporation. Hence the corporation can not refuse to transfer the stock.”

Section 622iZ reads:

“The by-laws of a corporation can not legally prohibit or limit the right of a stockholder to sell his stock.
“It has been held in Massachusetts, however, that a by-law, recited on the face of a certificate of stock to the effect that a stockholder will not sell his stock without first offering it to the directors at the same price, prevents the stockholder transferring the stock to his principal he not having disclosed that he was acting as agent. Such a by-law is legal, and the corporation may refuse to transfer the stock in violation of the by-law. ’ ’

This is held also in one case in Barrett v. King, 181 Mass. 476 [63 N. E. Rep. 934], but the test is otherwise in Ohio, as the statutes of this state provide that corporations shall keep a record of all stock subscribed and transferred, and for the secretary or recording officer of such corporation to register therein all subscriptions' and transfers of stock, and that it shall be their duty so to do.

The judgment of the court of common pleas is therefore affirmed.

Winch and Henry, JJ., concur.


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    DEEDS — PARENT & CHILD.
    [Cuyahoga (8th) Circuit Court,
    November 18, 1908.]
    Marvin, Winch and Henry, JJ.

      Edna R. Kramer v. Eliza Kramer.
    Deed from daughter to Mother Set Aside for Want of Consideration. A deed made without consideration by a daughter to her mother shortly after coming of age, will h© set aside, notwithstanding it recites a consideration of one dollar, if the circumstances show that the daughter was not acting upon independent judgment of her own, uninfluenced by her mother.
    Error.

      Klein & Harris, for plaintiff in error.

      McKisson <& Minshall, for defendant in error.

      Afiirmed, no op., Kramer v. Kramer, 82 O. S. 395.

   MARVIN, J.

The deed which it is sought to have declared void in this case was executed by the plaintiff within less than six months after she arrived at full age. The grantee was her mother, with whom she was living at the time, and with whom she lived from her birth up to a considerable time after this conveyance was made. Before the plaintiff became of full age, she had been with her mother to the office of a lawyer to have this deed executed and it would then have been executed but for the fact that the lawyer learning of the minority of the plaintiff, advised the execution would be a nullity. From that time on, until the execution of tbe deed, the matter was apparently never dropped. When the man who drew the deed was first seen about it, the mother and daughter were together; and when the deed was executed the mother and daughter were together. It is suggested in the brief of counsel for defendant that there was a consideration for the execution in the one dollar, which was paid at the time the deed was executed.

Surely this claim is not sound, for if the deed had been made under a bargain with the mother that she should purchase the property for one dollar the inadequacy of consideration would itself be a badge of fraud, when the fact was taken into consideration that the grantor was an eighteen year old daughter of the grantee with whom she was living and had lived all her life. In the ease of Lane v. Reserve Trust Co., this court decided on November 6, 1907, that a mortgage made by a young woman shortly after arriving at full age for the benefit of her stepfather, to the Reserve Trust Company, where the entire benefit was for her stepfather with whom she lived at the time of the execution of the mortgage, and during her minority, even though the trust company had no knowledge in regard to the matter other than the relationship which existed between the mortgagor and her step father, is void. Judge Winch dissented from this opinion, but only upon the ground that the trust company was not chargeable with the fact that the mortgage was made by the reason of the influence that the stepfather had over the daughter by simply showing the relationship between them. There is no intimation in his dissenting opinion that as between the stepfather and the daughter the instrument would not have been void. In the majority opinion in that case it is shown that the presumption is that when a child, shortly after reaching majority, makes a conveyance without consideration to a parent, the conveyance results from the influence which the parent has upon the child, and this quotation is made from the opinion in the case of Berkmyer v. Kellerman, 32 Ohio St. 239, 252 [30 Am. Rep. 577] (in which last named opinion the court quotes with approval, from Cocking v. Pratt, 1 Ves. Sr. 400, these words):

“The court will always look with a jealous eye upon a transaction between parent and child just come of age, and interpose if any advantage is taken. ’ ’

It is not deemed necessary here to go into the details upon the evidence which was adduced in the case. As has already been said, the grantor was just past majority; she had always lived with her mother, and was living with her at the time of the execution of the deed; she went with her mother to the office of a lawyer to have the deed executed before she was of full age. It is manifest, therefore; from the evidence, that it was not first upon the suggestion of this plaintiff that the conveyance be made to her mother. She had no knowledge of business and probably had a very vague and indistinct knowledge of what her rights in the premises were as the heir of her father, until it was suggested to her by her mother, or by others. She was, as we think, not acting upon any independent judgment of her own, uninfluenced, when she went with her mother, before her majority, to a lawyer’s office to execute this deed, nor did she ever thereafter exercise an independent judgment of her own, uninfluenced by the judgment of her mother, that this conveyance should be made. It is doubtful if she had any realization of the fact that the title would be in her mother in such wise that she would have no longer any interest in the premises.

In so holding we do not mean to charge the mother with an intentional wrong against her daughter. She seems to have thought, and some other friends seem to have thought, that the conveyance to the mother was more a matter of form than anything else, so to make it easy to settle the estate of the deceased father, and that Edna’s interest in the property would be fully as great after the conveyance as before. But for the fact that an unfortunate and unhappy disagreement has arisen between the mother and daughter, it is quite likely that the daughter would have been protected in her rights by her mother as completely as though she had not made the deed. But by making the deed she parted with a title which she had a right to keep. We think from the evidence that she parted with the title without the exercise of independent judgment on her part and that therefore the conveyance must be held for naught.

A decree will be taken accordingly. This will restore to Edna ber rights as they were before this conveyance was made. The property will be here, but no less liable to be converted into money if it shall become necessary for the payment of indebtedness of her father. In short, her rights will be neither greater nor less, by virtue of the decree in this case, than they would have been if the deed had not been made.

Winch and Henry, JJ., concur.