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    AS TO INTERROGATORIES FOR. DISCOVERY OF ADDITIONAL PARTIES.
    Circuit Court of Hamilton County.
    Charles M. Stanley v. I. M. Martin.

    Decided, December 24, 1909.

      Final Order — Sustaining of Dermcrrer to Interrogatories is not, When — • Proceedings for Disclosure of Unknown Parties — Breach of Contract — Error—Sections 5099 and 6707.

    Where a petition declares against a single defendant, but alleges that the plaintiff was given to understand that the defendant was acting as agent or manager for others who were interested in the profits of the enterprise, the sustaining of a demurrer to interrrogatories attached to the petition wherein a disclosure was sought of the names of such unknown parties, does not constitute a final order, and error proceedings based on the sustaining of the demurrer will be stricken from the files.

      Hosea & Knight, for plaintiff in error.

      Pogue & Pogue, contra.
    Smith, J.; Giffen, P. J., and Swing, J., concur.

       For decision below, see Stanley v. Martin, 6 O. L. R., 628.

   Plaintiff in error filed his petition in the court of common pleas, alleging that he entered into a contract with the defendant in error, as general manager of Chester Park, Winton Place, in this county, to furnish, maintain and exhibit daily a submarine boat for a period of seventeen weeks, commencing May 9, 1908, or longer at the option of the defendant in error, for which defendant in error agreed to pay him the sum of forty dollars weekly, and that the contract was in writing, signed by the parties. A copy was attached to his petition. He further alleged that on the 13th day of June, 1908, defendant in error ordered him to cease further performances, and compelled him to remove his apparatus, and that there is due him on such contract the sum of $480, for which he asks judgment.

The petition also alleges that plaintiff in error was given to understand that the defendant in error was acting not only in his own behalf but as agent and manager of others interested as owners of said park or in the profits arising therefrom, whose identity was not disclosed to plaintiff but whose names plaintiff asks leave to add to the petition as defendants when ascertained.

Plaintiff in error also annexed interrogatories to his petition which he asked to have answered by defendant in error under oath.

To these interrogatories plaintiff in error demurred, which demurrer was sustained by the trial court. No further proceedings were had in the court below, and error is prosecuted to this court to the sustaining of said demurrer.

Section 6707 defines a final order as “an order affecting a substantial right in an action when said order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment.”

The interrogatories are attached under Section 5099, Revised Statutes, which permits a party to annex to his pleadings, other than a demurrer, interrogatories pertinent to the issue made in the pleadings, which interrogatories if not demurred to shall be plainly and fully answered under oath by the party fo whom they are propounded.

It is evident, therefore, in determining this question, that wo must look to the petition, together with the interrogatories, to ascertain whether or not the order sustaining the demurrer is such an order as is contemplated under Section 6707. The petition declares upon an amount due under a written contract entered into between plaintiff in error and defendant in error, as general manager of Chester Park, and alleges that defendant in error agreed to'pay him a certain sum weekly during the life of the contract. It further alleged a breach on the part of the defendant in error, and claims there "is due him on the contract a certain sum of money. It nowhere alleges that others than defendant in error were interested in said contract, or that persons other than defendant in error agreed to pay plaintiff in error, or that others than the defendant in error committed a breach of the contract. It nowhere alleges or sets up an action jointly against two or more defendants, which it is the duty of the plaintiff to allege and prove if he wishes to maintain such an action. French v. Construction Co., 76 O. S., 509.

In this state of the record we think the order of the court below is not such a final order as affects a substantial right which determines the action and prevents a judgment, or is an order affecting a substantial right made in a special proceeding.

In our opinion, the petition as it stands is one against the defendant in error alone, and therefore, the order sustaining the demurrer to the interrogatories on the ground that they are not pertinent to the issue is merely an interlocutory one to which error will not lie at this stage of the case. Armstrong, Receiver, v. Herancourt Brewing Company, 53 O. S., 467; Krause v. Stichtenoth, 15 C. C., 199; Newburg Petroleum v. Weare, 44 O. S., 604; Longstreth v. Halsey, 4 C. C., 307.

The case at bar upon the record still stands in the court of common pleas and plaintiff in error’s action may be proceeded with there against defendant in error.

An order may be taken striking the error proceedings from the files.


source: Caselaw Access Project

license: Public Domain

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    DURATION OF CONTRACT OF EMPLOYMENT.
    Circuit Court of Hamilton County.
    The Louis Lipp Company v. Wm. H. Fennell.
    Decided, December 4, 1909.

      Employment — Breach of Contract for — Construction of Agreement— Words and Phrases.

    The contract of employment relied upon in this case was for a term of at least one year.

      Cobb, Howard & Bailey, for plaintiff in error.

      Pogue & Pogue, contra.

    Giffen, P. J.; Smith, J., and Swing, J., concur.
   The defendant in error, a traveling salesman, was employed by the plaintiff in error by written proposal and acceptance as follows :

“I am willing to start in -with you at $2,200 for the first year, and I will guarantee you will not lose by it. ’„’
Answer: "We are willing to try the proposition you make us and would ask you to make arrangements to start July 1st. ’ ’

The salesman evidently expected the employment to continue for a longer period than one year; but the proposal is limited to one year "at $2,200.” The word "at” is suitable to express "value” as well as "rate,” and was so used, we think, in this case. If any emphasis is to be given the verb “to try” it must be applied to the period mentioned in the proposal, to-wit, the first year.

Both parties evidently regarded the trial period as one year, the salesman offering to start in for one year at $2,200 and the employer agreeing to try him for that period.

Our conclusion is that the contract was for at least a year’s service. Of course this did not prevent his discharge for good cause; but the jury has found against the plaintiff, in error upon that issue.

The court did not err in refusing the third special instruction requested by defendant.

Finding no error of record the judgment is affirmed.


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    CONTROL OF INTANGIBLE PROPERTY BY INJUNCTION AGAINST ITS CUSTODIAN.
    Circuit Court of Cuyahoga County.
    The Cleveland and Buffalo Transit Company v. Kathryn L. Beeman, and Five Other Cases.

    Decided, May 10, 1909.

      Alimony■ — •Service on Defendant by Publication — Order that Corporate Stocks be Transferred to Plaintiff — Corporation the Custodian of Its Stock — Situs of the Corporation is Situs of Its Stock.

    1. An injunction against a custodian of intangible property gives to the court such control of the property as authorizes a decree transferring the title from the owner of the property before the injunction issued to another party to the suit who has been duly served with summons.
    2. In an action by a wife for alimony,-the fact that the husband was served by publication only does not render invalid an order awarding to the wife stocks in corporations for profit which have been brought into the action as defendants and enjoined against a transfer of the stock.

      Goulder, Holding & Masten, for plaintiffs in error.

      C. L. Shaw, contra.
    Marvin, J.; Henry, J., and Winch, J., concur.
    Error to the Court of Common Pleas.'

       Affirmed by the Supreme Court without report (on the authority of Benner v. Benner, 63 Ohio St., 220), 81 Ohio St., -.

   This ease (No. 4258), together with the cases following up to and including number 4263, all raise the same questions and the determination of one is the determination of all.

Suit was brought in the court of common pleas by Kathryn L. Beeman against her husband, Lester A. Beeman, for a divorce and alimony. Later, the prayer for divorce was abandoned and the case prosecuted for alimony alone. The defendant in that action, Lester A. Beeman, was a'non-resident of the state of Ohio at the time the action Was begun, and the only service had upon him was the constructive service by publication as provided for in the statute.

Each of the several plaintiffs in error in these eases is a corporation for profit. When the suit was begun in the court of'common pleas, Lester A. Beeman was a stockholder in each of these corporations, and each of the corporations was made a defendant in that action, and. each was - served with summons.

On the motion of the plaintiff in that action a restraining order was allowed against each of these corporations, forbidding the transfer of any -of the stock standing in the name of Lester A. Beeman, on their books, to any person. Upon final hearing the court awarded all of the stock standing in the name of Lester A. Beeman in these several corporations to Kathryn L. Beeman, as alimony, and ordered each of said corporations to deliver to the said Kathryn L. Beeman the original certificates for such stock, and in case of the inability of said corporations, or any one of them, or the refusal of any one -of them to deliver such certificates, that the decree of the court should operate as a conveyance of the several shares of stock in each of the corporations to the said Kathryn L. Beeman. To this judgment and order of the court error is prosecuted here, and a carefully prepared brief is furnished in behalf of the several plaintiffs in error, contending that the judgment was erroneous, and giving many plausible reasons for such contention. But whatever doubt might exist in our minds (were it not for the case of Benner v. Benner, 63 Ohio St., 220) is resolved by the judgment in that case in favor of the defendant in error.

The argument in brief on behalf of the plaintiff in error is that as no personal service was made upon the defendant, Lester A. Beeman, no personal judgment’ could be rendered against him for alimony, and that the only way in which, in such case, his property could be reached is by such proceedings as puts the property in .the custody of the court, and makes the case to that extent a proceeding in rem only, and that an injunction allowed against the custodian of such- property (for the several corporations are the custodians of the stock of the several stockholders, see Bank v. Towle Mfg. Co., 67 Ohio St., 306), is not such taking of the property by the court as will authorize a decree that the ownership of the property be transferred from -the owner of said stock before the injunction, to another party in the suit.

In the case of Benner v. Benner, supra, nothing was done to take the property of the defendant in that action into the custody of the court except the allowance of an injunction against the defendant prohibiting him from disposing of his property. The defendant in that action was a non-resident and there was no service other than constructive service by publication upon him. No injunction was allowed against anybody but him. True, the property there was real estate situated within the jurisdiction of the court. Here the property is intangible, but it has a situs and that situs is where the custodian of the property is, to-wit, the corporation. See the opinion in Bank v. Mfg. Co., 67 Ohio St., 314, supra.

The distinction between the case of Benner v. Benner, supra, and the present case, sought to be shown in the brief of plaintiffs in error, fails to convince us that the principle in that case must not apply to this. Indeed, the reason for its application here seems stronger than its application in that case, for each of the parties here enjoined by the order of the court was actually served with summons in the action, while the property was in the possession and under the control of the corporations, and we reach the conclusion, therefore, that the judgment of the court of common pleas was right and in each of the several cases the judgment is affirmed.


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    AS TO CORRECTION OF VERDICTS.
    Circuit Court of Hamilton County.
    Frederick W. Niebling v. Walter Laidlaw et al.
    Decided, November 27, 1909.

      Interest — Trial Court 'Without Authority to Acid to Verdict — 'Where no Allowance of has been Made hy the Jury — Authority to Correct Verdicts — Sections 5198, 5199 and 5S08.

    1. Where a jury in returning a verdict fails to include interest as prayed for in the petition, it is error for the court in entering judgment to include interest upon the verdict.
    2. Where no other error appears, a reviewing court will in such a case modify the .judgment as entered by deducting the interest added thereto.

      Paxton, Warrington & Seasongood, for plaintiff in error.

      Moulinier, Bettman & Hunt, contra.
    The plaintiff sued for a balance of $639.45, due for services and expenses in connection with an arbitration. The jury'returned a verdict for the amount claimed, but failed to compute interest thereon. In entering judgment on the verdict the court below added interest.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   In view of our statutes relative to the correction of verdicts, we are inclined to the opinion that it was error of the trial court in rendering judgment for defendants in error to include in the judgment interest upon the verdict when the' same was not returned by the jury in its verdict.

Section 5198 provides that if the verdict is defective in matter of substance the jury must be sent out again for further deliberation.

Section 5199 provides that if the verdict be defective in form-only, it may, with assent of the jurors, before they are discharged, be corrected by the court.

Section 5203 provides that when, by the verdict, either party is entitled to recover money of the adverse party, the jury, in its verdict, must assess the amount of recovery.

While it is true the petition asks for interest from a certain date, yet under the last section it was the duty of the jury to assess the amount of recovery if it found that the defendants in error were entitled to recover money from the plaintiff in error.

Besides if there was a mistake in the amount assessed by the jury, and thereby the verdict was defective in matter of substance, then the jury should have been sent out again for further deliberation.

The verdict is not defective in form and on its face neither is it defective in substance, for the jury being the only one to assess the amount of recovery it might well find that the party should not be allowed interest.

In the case of Fries v. Mack, 37 O. S., 52, it is held that, “Where an issue of fact is submitted to a jury and by their verdict they find for the plaintiff or defendant such verdict is to be regarded as a finding upon the issue joined between the parties. ” In the ease at bar the jury did so find assessing the amount due from plaintiff in error and it was the duty of the court in rendering judgment thereon to look alone to the verdict.

As it is stated in the case of Claiborne v. Tanner, 18 Tex., 68:

“There can be no clearer principle than that: ‘Where a jury has intervened, and all the issues have been submitted to their decision, their verdict must constitute the basis of the judgment. The court can not look to the evidence on which the verdict is found, in order to determine what judgment to render, but must look alone to the verdict. ’ ’ ’

In view of the foregoing, therefore, the case having been fully heard and considered and the only error or mistake arising is in the entering of the judgment, the same is hereby modified to the extent of reducing said judgment to the amount found due in the verdict of the jury.


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    CONSTRUCTION OF A COAL MINING CONTRACT.
    Circuit Court of Franklin County.
    The New Pittsburg Coal Co. v. The New York Coal Co.
    Decided, February 1, 1910.

      Mines and Mining — Lease of Coal Mining Rights — Action for Recovery of Minimum Royalties — Construction of Contract as to Minimum Tonnage and Royalties' — Causes Interfering with Mining Operar tions — Meaning of the Word “Impossible" and “Causes Beyond Control" as Used in Contract — Retention of Possession — Burden of Proof — Evidence as to Practical Construction Placed on Contract by the Parties Themselves.

    1. A coal mining contract, after providing that the lessee should remove a specified annual minimum quantity of lump coal and pay a royalty thereon to the first party at the rate of ten cents per ton, also provided that in case the lessee shall neglect or fail from any cause, except as thereinafter provided, to mine and remove the specified minimum he should, at the end of each year, account for and pay to the lessor such portion of the royalty per ton that would then be due had the specified minimum tonnage been actually mined and removed. . These provisions of the contract were followed by the exception: “In case and so long as it shall be impossible to mine and remove said amount by reason of strikes, lockouts, fires, floods or any other cause beyond the control of the second party (lessee), lack of transportation facilities excepted, the said minimum shall not apply.” Held:

    (а) The covenants to mine and remove a minimum tonnage and to pay a minimum royalty, were not absolute.
    (б) The clause, “or any other cause beyond the control of the second party,” should not be limited by the rules noscitwr a sociis or ejusdum generis to either temporary causes and disturbances interfering with the mining and removal of the coal, or to causes kindred to or of the same class as those specifically enumerated, but should be construed in its popular acceptation so as to embrace any other cause beyond the control of the lessee not attributable to its fault.
    (c) The word “impossible,” as used in said contract, does not mean absolute physical impossibility, but should be construed in- a business sense; and the mining and removing of the minimum tonnage is “impossible” when it appears that, on account of causes and natural disturbances not attributable to the fault of the lessee,, it can not be mined and removed without resorting to unreasonable or extraordinary expense or the employment of unusual and extraordinary means.
    (cZ) In determining the question whether or not the second party was prevented by ‘‘causes beyond its control” from milling and removing the minimum tonnage, evidence is competent which tends to show the tonnage capacity of the different mines, the physical condition of the property, the refusal of the miners to work in any of the mines and the cause thereof, the ability of the lessee to mine the minimum tonnage, the condition of the unmined area, any strike in any of the mines affected by the contract, and the expense incurred or means employed in an effort to produce the minimum; and the question of impossibility of mining and removing the minimum tonnage under the saving clause of the lease in case of doubt or conflict in the evidence is one of fact to be submitted to the jury.
    (e) Retention of possession by the lessee without mining and removing the minimum tonnage, if possible from causes beyond it control, is not sufficient to render it liable for the minimum royalty.
    (/) The burden of proof is upon the lessee to show that it was prevented from mining and removing the minimum tonnage on account of causes beyond its control.
    2. Evidence showing the practical construction which either party, has placed upon a coal mining contract and the acquiescence therein by the other party, may be considered for the purpose of aiding in its proper construction.

      Arnold, Morton & Irvine, Q. R. Lane and R. J. Odell, for plaintiff in error.

      Add son, Sinks & Babcock, Booth, Keating, Peters & Pomerene and F. K. Pendleton, contra.
    Allread, J.; Sullivan, J., and Dustin, J., concur.
   This action in the court below was brought by the New York Coal Company against the New Pittsburg Coal Company to recover the balance of the minimum royalty, after deducting the amount of coal actually mined for the years ending June 30th, 1903, 1904, 1905, and for the months of July, August and September of the year 1905, under a lease executed by the New York Coal Company in the year 1894 to Robert Staffer, and assigned successively with the consent of the New York Coal Company to the Staffer Coal Company and the New Pittsburg Coal Company, the latter being the lessee during the period of liability. The plaintiff below recovered a verdict and judgment for the full amount claimed, to-wit, $14,396.14. This judgment is sought to be reviewed by proceedings in error in this court.

It is admitted by the answer that the lessee was operating the mines covered by the lease during the period for which recovery is sought, and in a previous answer it was admitted that the lessee was in possession during the period named. It is not very material whether we accept the qualified admission of the last answer or that of the former answer. The liability must be determined by the written contract. The rental contract, by its terms, continues “until all the coal has been removed from the said aforementioned property as herein provided,” and stipulates that the minimum royalty shall be in force “until all the coal in, upon or under said land has been fully and entirely removed therefrom, including all pillars, supports and stumps; which shall be withdrawn and taken out.”

The lessee being in possession and operating the mines during the period of alleged liability, it may be taken as conceded for the purposes of the present case that the lease was still in operation and effect. Whether the lessee might not have abandoned the premises when the coal was so far exhausted as to be incapable of practical operation is not involved in the present case. The whole contract must, therefore, be read and construed to determine the rental or royalty liability, as applied to the state of facts presented here in connection with the defense offered in the court below.

It may be noted incidentally that the lease was of the right and privilege to prospect for and mine coal and to remove timber for mining purposes; otherwise the possession remained in the lessor. Clauses and covenants are found providing for economical operation of the coal mine so as to yield .the greatest possible amount of coal, and a royalty for all coal removed, together with a minimum liability. There is a further proviso for an increase in the royalty according to the current rate in. the Hocking valley. The clause which is specially involved is that relating to the agreement of the lessee to pay the minimum, and the exception, which is as follows:

“And if said second party (lessee) shall neglect or fail from any cause except as hereinafter provided to so mine and remove the said minimum of thirty thousand tons between July 1st, 1894, and July 1st, 1895, or said minimum of sixty thousand tons during each and every year thereafter, or said minimum of thirty-five hundred tons during any month thereafter, he shall at the end of such year or month account for and pay to the first party such portion of the royalty per ton aforesaid that would then be due if said number of tons had been actually so mined and removed.
“It is hereby understood and agreed by and between the parties hereto that in case and so long as .it shall be impossible to mine and remove said amount by reason of strikes, lockout, fires, floods or any other cause beyond the control of the second party, lack of transportation facilities excepted, the said minimum shall not apply.”

We think .that this lease, so far as the royalty or rental is concerned, may be held to be a royalty contract, with a reservation of dead rent as a spur to diligence and to secure to the lessor the largest possible returns. The royalty feature of the contract is predominant. The extreme care in providing for the economical operation of the mine, the supervision and control of the lessor’s engineer in mining operations, and the provision for the increase of the royalty from time to time up to the general current rate in the ITocking Yalley, indicate that the central idea of the contracting parties was the payment of the' tonnage royalty and .the provision for dead rent was to secure the lessor against neglect or lack of diligence on the part of the lessee.

Counsel have been diligent in the citation of cases involving mining leases. These cases are by no -means in harmony, but from them may be' deduced a principle of construction supported at least by the weight of authorities that where a minimum royalty or dead rent is reserved without exception, the' lessee is bound, except in cases where there is no minable coal or where it has become exhahsted. Where merely the' quantity of minable coal or the expense of mining is involved, the courts do not as a general rule relieve the lessee from his agreement as to the minimum, so that we think it may be taken here as an established proposition that if there had not been inserted an exception in favor of the lessee in the leasing contract, its liability for the minimum could not be successfully assailed.

We are, therefore, brought to a reading and construction of the exception or saving clause in favor of the lessee. The defense set forth in the answer and offered upon .the trial consists of a showing that by reason of the exhaustion of the coal in the main mine upon what is known as the West Hill and of the small mine upon the east part of the East Hill, and by reason of the dangerous natural formation of /the roof of the coal mine in the main part of the East Hill, and of the refusal of the workmen to operate the East Hill, the lessee was prevented from mining the minimum or a greater quantity of coal during the period of liability than was actually mined and paid for. The question, therefore, is whether this defense so stated in substance is within the saving clause of the rental contract.

The learned judge of the trial court limited the clause “Or any other cause beyond the control of the second party” by the well known principle of noscitur a sociis -and ejusdem generis, and was of the opinion that the specific causes related to temporary disturbances, and that, therefore, “any other causes” must be one similar to those specifically named. The view so taken is not without plausibility, and support, but upon careful examination of the authorities in connection with the scope of this lease, we are inclined to a more liberal and broader interpretation. The doctrine of ejusdem generis is never an absosolute rule of construction, but a mere suggestion in connection with the scope of the instrument to be interpreted. We may as fairly invoke the doctrine of'expressio unius est exclusio alterius, and hold that the one exception excluded all others, but the central idea of the construction of a written contract is to apply all the aids 'and suggestions of the rules of construction toward the ascertainment of the intent of the parties which is to control. Now, having in view the main scope of this contract as heretofore expressed, the saving clause, we think should be liberally construed to effectuate the apparent intention of the parties so as to hold the lessee to a high degree of diligence, but not absolutely. The exception, therefore, “any other cause beyond the control of the second party” should be constructed in its popular acceptation, and held .to save the lessee as against the failure .to mine the minimum for any other cause beyond, his control or not arising in or attributable to his fault. Such construction accomplished the manifest intention of the parties; secures a high degree of diligence; further the economical operation of the mines until the coal is finally exhausted; and relieves the lessee from consequences beyond his control. The view of the court is not without authority.

In the recent case of Wilson v. The Big Joe Bloch Coal Company, 134 Ia., 594, and finally decided in 119 N. W. Rep., 604, where the mining lease in controversy provided for a minimum liability, with a saving clause in case the lessees “are prevented from taking out said coal on account of any matters that they can not avoid, then they shall not be required to .take out any certain amount of coal or pay for any amount not taken out,” it was held that the lessees were relieved from the minimum where, by reason of faults in the coal deposits, the mine could not be profitably operated.

Weaver, C. J. in the opinion holds:

‘ ‘ The saving clause of the lease by which the lessee was to be relieved from the payment of royalty when prevented from taking out coal on account of matters which it could not avoid must be given a reasonable construction.”

It is true in this case there was no specific causes named, and therefore, the doctrine of ejusdem generis may not be said to be involved, but the decision sustains the view that the savins clause in the lease is to be reasonably construed and applied to any condition that prevents the profitable mining of the coal.

In the case of Givens v. The Coal Company, 60 S. W., 304 (Ky.), a mining lease was under consideration in which a minimum was stipulated for, with the provision excusing the minimum when the lessee was prevented therefrom “by any accident or casualties without fault on his part or by accident or circumstances not under his control.” And the saving clause was applied in favor of the lessee where the coal mined was so inferior as to make it unsalable in the market.

The case of Robinson v. Kistler, 62 W. Va., 489, involved a mining lease providing for a minimum royalty with an exception in favor of the lessee “in case of strikes, accidents or any cause of stoppage of transportation over which the second party (lessee) has no control, and he is disabled or prohibited thereby from mining or shipping coal from the said mine, then the minimum royalty as above specified is to be suspended for the period of such disability;” and this exception was construed to include lack of cars.

The opinion, however, sheds light upon the construction of the general words “any cause beyond control,” etc., in which is found the following:

‘ ‘ The words of a contract will be given a reasonable construction if possible rather than an unreasonable one. These words ‘over which the second party has no control’ are simply another way we have of saying almost every day in making contracts, ‘for which the second party is not to blame,’ or ‘without the fault of the party of the second part.’ The word ‘control’ has no legal or technical meaning distinct from that given in its popular acceptation.”

In the case of Bannon v. Graeff, 186 Pa. St., 648, where the mining lease provided for a minimum to be mined and paid for by the lessee, “unless prevented from doing so by an unavoidable accident or occurrence beyond their control,” it was held that the exhaustion of the coal or other physical conditions so that the available or workable coal was exhausted, relieved the lessee.

A number of cases are cited by counsel for defendant in error, but in all the cases cited, save one, there was an absolute stipulation for the minimum, and no saving clause in favor of the lessee, the only exception being the case of Berwind-White Coal Mining Co. v. Martin, 124 Fed. Rep., 313, decided by the Circuit Court of.Appeals, and in which a writ of review was denied by the Supreme Court of the United States, 191 U. S., 569. The only report of the case is, therefore, found in the Circuit Court of Appeals.

The majority opinion in this case refers to the minimum clause in the contract in connection with the statement that the mining operation had been abandoned during the first.year, and holds the lessee liable for the minimum during the years stipulated for -in the lease. No grounds of abandonment are stated in the prevailing opinion. So far as that opinion is concerned, the lessees appeared to have abandoned the lease without any cause and expected to defeat the royalty upon the ground that all the coal was still in place in the mine. This defense was not sustained, and the minimum liability was enforced.

In the dissenting opinion, however, the saving clause is set out and relied upon to support the dissent. In the statement of facts found in the dissenting opinion, it appears that the lessees, after mining some coal the first year and prospecting in the vein and finding troubles and faults which indicated to them that the mine was not profitable, abandoned the lease. The lessors thereupon took possession, and about the end of the first year, .after exploring the veins, found the existence of profitable coal, and so notified the lessees, insisting upon their complying with their lease. The statement of facts even in the dissenting opinion does not bring the case within the exception for the reason that ample minable coal existed in the lease, but the lessees had not gone to the trouble of sufficiently exploring the vein so as to discover it. The failure, therefore, to mine was due in some measure to the fault of the lessees.

While the authority of .a decision of the 'Supreme Court of the United States would be sufficient to override the cases heretofore cited, still it does not sufficiently appear that the Supreme Court of the United States or even the Circuit Court of Appeals passed upon a case where the controlling facts are similar to the case at bar.

Another feature of this case which adds to the preponderance in favor of the construction given is that it accords with that of the parties during the period for which the action is brought. The operation of the mines was under the direction in a meas-tire of the engineer of the lessor and it does not appear that he ever objected to the manner in which’ the mines were worked or that the company ever made any claim during that period to the enforcement of the minimum clause. While the course of the lessor can not be said to be an estoppel, yet it operates favorably to the lessee in the construction of the lease.

It is urged that the lessee, being in possession and relieved from the minimum, might hold possession for an indefinite time, and use the property in connection with other mining properties and prevent the lessor from operating it. This argument would be most persuasive if the court were making a new contract, but it is'a sufficient reply to say that we are only construing reasonably and in harmony with the intention of the parties a contract already made.

We are, therefore, of the opinion that the defendant below should have been permitted to show the tonnage capacity of the mines in the West ITill and in the east part of the East Hill, if any were still being operated, during the period named, when operated by the most efficient machinery in general use or that approved by the engineer in charge and when operated up to the full capacity, both as to machinery and available men, and to show the physical condition of the mines in the East Hill, the objection of the workmen to operating therein, and the ability of the lessees to mine coal therefrom, as well as the prospect in the unmined area, as affecting the possibility of putting out the minimum provided for in the lease. Also it was proper to show, as reflecting to that extent, any general strike, in all the mines affected by this contract. Assuming that the defendant could produce the testimony proposed in its defense, we think it is a question for the jury to decide ,as to the impossibility of mining the minimum amount arising from any cause beyond the control of the lessee.

The word “impossible” as used in the contract must be construed in a business sense, and would relieve the lessee from the minimum where by reason of causes beyond his control the minimum could not be mined without resorting to unreasonable or extraordinary expenses or the employment of unusual and extraordinary means;

For the refusal of the trial court to admit the evidence of the character stated proposed by the defendant below in its defense, the judgment is reversed.

The defendant in the court below objected to the ruling of the trial court upon the burden of proof as to the exception or saving clause. In the amended petition the plaintiff negatived the conditions required by the exception or saving clause. This was put in issue by the general denial. The form of the pleading, however, is not controlling. In the case of The Brick Co. v. Pond, 38 O. S., 65, and Cooke v. Andrews, 36 O. S., 178, it was held that the burden was upon the defendant to prove the exception. It is contended, however, that the facts here are different, inasmuch as the lessor had inspectors and engineers in charge of the work. We think, however, that the provisions of this lease in that respect do not call for a contrary decision. While the lessor had engineers supervising the work, yet the lessee was bound under the contract to explore for coal in the unmined area. He, therefore, had the means of knowing whether minatble coal could be found, and to shift the burden of proof to the plaintiff would require it not only to be familiar with the workings of the coal mine where in operation, but to explore in the unmined sections. Williams, J., in the case of Moody v. Insurance Co., 52 O. S., 12, amply sustains the ruling of the trial court as to burden of proof. And as to this principle is not affected by Insurance Co. v. Werner, 76 O. S., 543, as we read the latter case. There was, therefore, no error prejudicial to the defendant below in the rulings of the court up to the opening of the defendant’s case.

The judgment will, therefore, be reversed for the reasons stated in the opinion, and the cause remanded for a new trial.


author: Per Curiam;.

text:
    CONTRACT FOR SALE OF PETROLEUM PRODUCTS.
    Circuit Court of Wood County.
    Ruth M. Miller v. T. J. Vandergrift and the Ohio Oil Co. et al.
    Decided, 1892.

      Gas and Oil Lease Construed — Held to Have Been in Effect a Sale of Petroleum Products — Effect of Temporary Provision for Gas for Lessor’s Use, and of Extension of Time for Opening a Well.

    1. The acceptance and use of gas by a lessor for lighting and heating purposes, supplied by a gas company and paid for by lessees, in consideration for which the lessees are granted an extension of time to open a well producing oil and gas, which, by reason of the intermingling of the oil and for want of marketable facilities for the oil, was unprofitable to operate for either oil or gas, neither extends the terms of the lease nor waives conditions of forfeiture for noncompliance therewith, especially after the expiration of the term contracted for and in the absence of a well profitably producing either gas or oil; and the lessor is not required to directly notify lessees to shut off the gas from the house after giving general notice of the expiration of the lease.
    2. A contract to drill and operate oil and gas wells for a royalty or fixed compensation for the gas or oil produced, with time limit within which wells are to be completed and extentions of the term ■granted in case profitable wells are developed, and upon failure to complete wells within stipulated periods subject to rental at a stipulated sum per acre or forfeiture of lease of lands for the term, is not a lease within the ordinary acceptation of the term but is a sale of petrolium products.
    Scribner, Bentley and Haynes, JJ.
   Per Curiam;.

This is an action regarding a so-called oil lease, or gas contract. The petition recites that.Mrs. Miller is the owner of certain lands in this county, and July 29, 1886, entered into a contract with one T. J. Vandergrift regarding the production and disposition of the oil and gas under the lands.

The general nature of the oil and gas leases, as they are generally called, has been indicated by this court so many times, that we will not now repeat our views on that subject. It is sufficient to say that we regard them as not leases in the ordinary acceptation of the term, but as a sale of the oil and gas under certain stipulations and provisions embodied under a contract.

This contract provides in the forepart of it as follows:

“That the said party of the first part for the consideration of the covenants and agreements hereinafter mentioned, has granted, demised and let unto the party of the second part, his heirs -or assigns, for the purpose and with the exclusive right of drilling and operating for petroleum and gas, all that certain tract of land. (Here follows a description of lands.) The following clause also gives the party of the second part the right of using sufficient water for their operations upon said land; the right to lay pipes and convey oil and gas, and the right to remove any machinery or fixtures, on said premises for, and during the term of three years from the date hereof and -as much longer as oil or gas is found in paying quantities thereon. ’ ’

The next clause provides for the payment of, and delivery to the party of the first part, a certain share of the oil which shall be found on the premises, which is to be delivered to her free of expense into tanks or pipe lines to the credit of the first party, and should gas be found in sufficient quantities to justify marketing the same, the consideration in full to the party of the first part, shall be $300 per annum for the gas from each well so long as it shall be sold therefrom.

It is further agreed that the party of the second part shall complete a well on the above described premises within six months from the date hereof, and in case of failure to complete such well within such time, the party of the second part agrees t.o pay to the party of the first part for such delay, a yearly rental of one dollar per acre on the premises herein leased from the expiration of said six months until such well shall be completed; the said yearly rental amounting to $80 shall be deposited to the credit of the party of the first part in the Farmer’s National Bank in Findlay, or be paid direct to the first party. And a failure to complete such well or to make such deposit or payment as above mentioned, shall render this lease null and void and to remain without effect between the parties hereto.

The next clause provides for the damages to growing crops or timber, and the next clause is as follows:

“The party of the first part shall locate the first well. After the completion of the first well, no further operation to sink a second well for six months thereafter, shall render this lease null and void.”

The petition avers that the Ohio Oil Company claims the title which was originally granted to Yandergrift by a certain assignment, but for certain reasons, the assignment is of no effect and the Ohio Oil Company really has no such right as it claims.

The petition alleges that a well was completed on the premises within one year from the date of the contract — not within six months as provided, but within one year. The petition also states that the term of three years has fully expired, and neither gas nor oil is now being produced or found in paying quantities or in any quantity whatever on said lands, and neither has oil or gas been found or produced in any quantity whatever on said premises by the defendants or either of them, at any time since the completion of said first well. The said first well was completed within one year after the date of said lease, yet neither said lessee nor any of said defendants have commenced operations to sink -a second well on said premises and that by reason of this failure the lease and contract have become null and void. The petition further avers that the Ohio Oil Company by its employes has entered upon said premises and placed thereon certain timbers and machinery without any authority or -right whatever, and unless enjoined by this court will proceed to possess and occupy said lands to the great and irreparable damage and injury of said plaintiff, ‘ ‘ and the plaintiff prays an injunction restraining the defendants and each of them from asserting any further right, title or interest in said lands under said contract, or from- molesting or disturbing the plaintiff in the free and uninterrupted use and possession of said lands -themselves or by their employes, to erect derricks, plant machinery, lay pipes or drill oil or gas wells, or commencing so to do under said contract-, and that on the final hearing of this- cause, the said written contract may be found, held and adjudicated to be of no binding force or efficacy and that the same be declared to be forfeited, annulled, canceled and held for naught and for all proper relief. ’ ’

The Ohio Oil Company filed an answer alleging the proper transfer by T. J. Vandergrift to it of his rights' under the said contract and alleging that this company drilled a well upon the premises at an expense to them of about $1,500. That at the time this lease was completed and delivered and when the well was being drilled, although it provides for both oil and gas, neither party had any idea that any oil would be produced on these premises; that really as the parties understood, gas and gas alone, was expected, when to the surprise of all parties the well proved to be an oil well. The answer does not allege whether or not the well produced oil in paying quantities, but alleges certain reasons to show that the marketing of the oil was not convenient or practical at the time, that no pipe lines were then within any reasonable distance, and that the parties could not have operated the well with profit to either party; and then follows this averment:

‘ ‘ That .thereupon, by mutual agreement of the parties, the lessees undertook for themselves and their assigns to supply, and did supply, gas from the gas line of the North Western Ohio Natural Gas Company .to heat the dwelling-house of said plaintiff on said lands; that said lessees and their assigns have ever since so furnished and are still furnishing gas at their own expense to her, in lieu of operating said well and of drilling a second well on said lands within the time prescribed in the lease; and that defendants at an expense to themselves of $116.10, and without expense to plaintiff- piped such gas from the gas line aforesaid to plaintiff’s dwelling-house and made the connections with her stoves therein; all of which she received as full compensation for rental and delay in drilling said second well. That until defendants began to furnish gas as aforesaid the cash rental provided for in said lease was fully and promptly paid.”

And then proceeds to make certain allegations to show that the failure to operate this well or to drill other wells, did not result in actual harm to plaintiff as her lands are not drained; that the price of oil has advanced since that time, and the plaintiff has lost nothing, but on the contrary has been the gainer by the fact of said lands not being operated.

The answer also alleges:

“That at the commencement of this action it was the purpose and intention of defendants to operate said well and drill and operate other wells on said lands, pursuant to and under said lease, and that but for this injunction, additional wells would now be completed and in operation on said lands, and the plaintiff would be receiving her royalty on the production thereof provided for in the said lease.”

Now at the time this action was begun, July 14th, 1890, it will be seen that the original three-year term of the lease had long since expired; that if the lease were continued under this contract, it would'result from that clause in the lease which was to extend it in casé oil or gas is produced or found in paying .quantities thereon. Evidence was introduced by the defendant in support of these allegations of its answer. Quite an amount of evidence was introduced to indicate that, considering the way the parties were situated, the oil which this well would produce could not be marketed so as to make it a paying thing either to the company or to the plaintiff, and while the well did produce oil and some gas, the amount was not more than about five to one hundred and fifty barrels per day, and that the gas was so intermingled with the oil, that as a gas well it would amount to nothing, and that the pipe lines were so distant, that to market this oil would not pay in the quantities produced by the well. It was conceded by the pláintiff that in a general way, where there were the usual facilities, a well producing this amount of oil would be regarded as producing in paying quantities. It is conceded by all that no second well was drilled or begun. "When this well came in, it was shut off and remained in that condition, and in fact is in that condition now.

The main reliance of the defendant to sustain its position and its rights to continue operations upon this land seems to arise upon this alleged contract that was made regarding the use of gas, and its true interpretation. The evidence shows this to have been the arrangement: this well having been completed in April or May, 1887, in. the fall of that year, the plaintiff getting no advantage from the well or the defendant either, -and being anxious to get gas to use in her house, made application, once by letter and once after verbally, to the representative of the company regarding the supplying her with gas, and told them that if they would procure gas from the gas company’s line that ran through the neighborhood, and furnish her with gas for the house, she would not hurry them in opening up that well. The testimony upon the making of this arrangenment is not specially conflicting. Arrangements were made with the gas line company whereby that line was attached, at the expense of something over $100, pipes laid to the plaintiff’s house, and the gas turned on, and she began using it. No bills for the use of that gas were sent by any person to her and she paid nothing. She continued to use it, and the defendant continued to pay 'the bills which were rendered to it by the gas company for the gas, amounting to something over $100 a year.

It is proof, however, that some time prior to the beginning of this action, she caused the defendant company to be notified that she regarded the lease as terminated and that they should proceed to take their “stuff” off the premises. There is a conflict in the testimony as to when this notice was given. It was given, it seems to a Mr. Donnell, a representative of the defendant company. He admits it was given, but the conflict is as to the time. He says in his testimony it was only about sixty days before the beginning of this action; on the other hand, the plaintiff testifies that she instructed her son, a young man about twenty-eight years of age, to give this notice of her claim that the lease was forfeited more than a year before the bginning of this action, and her attention being called to some circumstances upon the day of these instructions to her son and her son’s testimony as to the time, she gets at it in two or three different ways all of which point to this item, so far as her testimony goes. The young man to whom the instructions were given died before the trial of the case in this court, and after the trial in the common pleas court, and his evidence- was read .before us. In that -testimony he says he received these instructions from his mother a year bef ore this suit was begun and that he notified Mr. Donnell a year before this action was begun; he repeated that statement several times in his examination in chief. His cross-examination is quite brief, but after making this statement it contains this, “The talk I had with Donnell was a little over a year before they went on with their machinery; it was three years and six months after the date of the lease. ’ ’ This last statement would seem to apply to that notification, would seem to make the notification somewhat less than a year before the beginning of the action — six months perhaps — but from the testimony we have to balance these probabilities, we think that this notice was given about six months before the beginning of this action, and the question remains, what was the consequence of this notice under these circumstances?

It is to be remarked that the plaintiff never gave the defendant any direct notice to shut off this gas, or that she would no longer receive the gas; neither did she turn the gas off herself, but simply gave this general notice that she regarded the lease as having expired, and the defendants were ordered to take their property off the premises. The defendant argues that as long as she continued to use this gas and did not turn it off, and did'not notify them to turn it off, that she must be held notwithstanding her general notice, as receiving the fruits of this contract, and extension of the time provided for in the verbal contract must be held as continuing as long as she is using the gas. Well while the testimony does not indicate that she gave any direct notice to the defendant to shut off this gas, yet her general notice has, we think, covered this and was sufficient for that purpose. When she notified them that the lease — the whole contract under which they were operating — she considered as at an end, and that they were required to take their property off her premises, and did all those things, we think it was sufficient notice to them to terminate everything under the contract.

Now there is no proof that she had any arrangement herself with this gas company. She did not make the contract with the gas company to have her house supplied with gas from it. She did not order it turned on. The whole arrangement was brought through the defendant’s agents. It would not be expected that she would go to this gas company itself; but it would be expected that she would apply to the defendant, its agent. There is no proof that -she, herself, could have turned this gas off. We know something of the general nature of this gas, and it does not appear, from the testimony at least, that she had any facilities herself for turning it off, or that she could have done so, and it would seem fairly to be implied, that as long as it was delivered at her house to her stoves, she could not very well make other arrangements for heat in place of the use of the gas, and that as long as the defendant, with notice, allowed that gas to be run into the house, she did not alter her position to them by using it; that unless they had made some contract by which she was held bound to use this gas, this general notice of hers was sufficient to terminate that arrangement.

It is conceded by the defendant that this arrangement regarding the use of the gas was in lieu of the rental and the further operations under the lease and drilling of another well, etc. The testimony does not indicate that this was a fair interpretation of this arrangement. If it was made in lieu of rental, it would not be expected that the defendant would after-wards pay rental in money, and yet it is substantially uncontradicted that this arrangement was made in the fall, and that following that, a month or so, a rental of $80 was paid by the defendant which would extend the matter a year, perhaps from January, 1888, to 1889. The first rental seems to have been paid according to the testimony, late in the fall of 1886, or probably January, 1887, and the next rental in January, 1888. Now we regard this arrangement as to furnishing gas as a sort of temporary make-shift between the parties to extend the time for the opening up of the well and the further proceedings under the lease. That it was not in its nature terminated, or not to be extended over a long period of time; that it was such an arrangement that might -be terminated by the parties at the end of any -reasonable time. The contract in this case was for gas and oil, and it was understood that gas alone was expected. In case gas had been found, then plaintiff would have received $300 per year for each gas well drilled on the land. She had provided for two wells and she was getting no gas, and was getting no revenue at all except the furnishing of gas to her house in this way.

Now we think, to hold that, after she saw fit to terminate the verbal arrangement by notice, these parties might omit to open up that well or to drill another, would be doing violence to the fair interpretation of that contract, and would result in unfairness to her considering the contract she had made. We think that when this notice came to these parties, it was incumbent upon them to proceed, at least within a reasonable time, to go on with this work — to finish the well and to drill the other well. We think they wholly failed and omitted to do that for an unreasonable length of time, and that the plaintiff availed herself of the right which she had to comence this action to terminate the whole arrangement.

■In that view of the case of course the plaintiff’s petition must be sustained, and the injunction which is prayed-for by her granted, and that will be the decree of this court; and costs will be awarded against the defendant as usually follows in such cases.


text:
    AS TO AUTHORITY TO MAKE CONTRACT FOR SALE OF APPLES.
    Circuit Court of Hamilton County.
    Andrew G. Norman v. William H. Plumb.
    Decided, January 29, 1910.

      Agency — Contracts—Boole Accounts — Determination by Jury will not be Set Aside, Wheru — Section 5086.

    . 1. The objection that cash items alone can not, without special authority, be the subject of a book account is not well taken, where the action is on a contract and there is an averment in the petition that the indebtedness arose “for money laid out and expended and commissions in the purchase and sale of goods by the plaintiff for the defendant at his request.”

      2. Where neither party, to an action on an account has kept his books in such a way as to strenghten his oral testimony, but the plaintiff seems to have been a fair and candid witness, the finding of the jury in his favor will not be disturbed.

      Burch & Johnson, for plaintiff in error.

      Kelley & Hauck, contra.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   The petition in this case was not intended as a short form of pleading under Section 5086, Revised Statutes, but contains an averment of the contract upon which the indebtedness arose, to-wit, “for money laid out and expended and commissions in the purchase and sale of goods by plaintiff”; and the objection that cash items alone can not, without special authority, be the subject of a book account is not well taken.

The chief question in the case is whether one Eckenroth was authorized, as agent of defendant, to make the contract with plaintiff. The defendant admits that he was authorized to employ plaintiff at $2.50 per day to buy apples for the defendant. This limitation upon the authority of the agent was not disclosed to the plaintiff, and his apparent authority was general so far as it related to terms of employment in buying apples through plaintiff in the state of New York and shipping them to defendant in Cincinnati. The evidence shows that by the terms of the contract made with the agent plaintiff was to receive ten cents per barrel, not merely for handling the apples, but as a factor, because the apples were purchased from a large number of farmers by the plaintiff on his own account, although the money was from time to time'furnished by the defendant.

The defendant claims that he paid for about 1,000 barrels of apples more than he received; but he offered no book account or other evidence to support the claim. Neither party kept his books or accounts in such a way as would add to and strenghten his oral statement, but the jury having found in favor of the plaintiff we are not disposed to set the verdict -aside upon the ground that it is not sustained by sufficient evidence, especially as the plaintiff seems to have been a fair and candid witness.

The letter marked “Exhibit 12” related to the condition of the apples, the number of barrels sold and the price, all at Cincinnati, and had no relation to the terms of the contract made in New York. Even if incompetent, there was no prejudice.

The letter marked " Exhibit 22, ’ ’ offered as a standard of comparison with the signature of Eekenroth to the letter “Exhibit 12,” was neither admitted nor clearly proved to be a genuine letter and signature, and hence the court did not err in excluding it.

Special instruction No. 14 was properly refused because one of the letters written by defendant to plaintiff contained the following:

“Wé judge by your message that we can do business with you either on joint account or buy from you or rather through you. We will send man on the train tomorrow noon — any way you arrange with him will be satisfactory to us.”

This shows not only that Eekenroth, the ‘‘man” referred to, was authorized to make the contract; but that the defendant expected to buy not directly from but through the plaintiff from any New York farmers having suitable apples.

That part of the general charge objected to is not as clear as it should be-, but we think the jury was not thereby misled to the prejudice of the defendant.

The judgment will be affirmed.


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    THE DEFENSE OF SELF-DEFENSE IN A TRIAL FOR HOMICIDE.
    Circuit Court of Hamilton County.
    Stephen Taylor v. The State of Ohio.
    Decided, December 4, 1909.

      Criminal Law — Reopening of a Case in Chief — Discretion of the Comt —Rights of the Defendant — Self-Defense—Burden of Proof — Charge of Cowrt — Use of the Word “Honestly” in Connection with Belief.

    1. While it is within the discretion of a trial judge to re-open a case at any time before it is finally closed and let in testimony in chief, it is error to thereafter refuse to allow the defendant at least a reasonable time to recall his witnesses and make answer to the new evidence.
    2. Before a defendant in a homicide case can be required to establish self-defense by a preponderance of the evidence, the state must establish that the killing by him was an unlawful killing within the degree of the crime charged.

      A. Lee Beaty, for plaintiff in error.

      Arthur G. Friche, Assistant Prosecuting Attorney, contra.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   The plaintiff in error was indicted, tried and convicted of murder in the second degree in the court of common pleas of this county and now seeks ,a reversal of the judgment of the court committing him to the penitentiary for life for the following errors:

First. The act of the court in admitting certain evidence in rebuttal which should have been introduced in chief by the state and the refusal to allow plaintiff in error the right to rejoin thereto.

Second. For errors of law in the general charge of the court. The state in rebuttal called as a witness Isaac J. Cassidy, who testified substantially that the plaintiff-in error had asked him to go into a certain place and ascertain if Tom Taylor, the deceased, was in there and tell him to come out. That he did so, and after coming out the plaintiff in error asked him if Tom Taylor was in there and he said no; that he may be over at the bakery; and that about twenty minutes or a half hour thereafter a shot was fired, and that the witness then ran up the street and found the deceased lying on the ground, dead.

It is apparent that this evidence was introduced for the purpose of showing that the plaintiff in error was seeking the deceased for the purpose, it could be argued, of shooting him. This being so, the evidence was clearly such as should have been offered in chief by the state. It was, however, within the discretion of the trial judge to permit this evidence to be given, but if this was done then the plaintiff in error should have been allowed at least a reasonable time to recall his witnesses to malee answer to this new evidence. The rule seems to be:

‘ ‘ By the law of evidence, testimony competent in chief, by that fact is rendered incompetent in reply. The rule, however, is subject to the discretional authority of a trial court to reopen a case in chief at any time -before it is finally closed and let such evidence in. But this should not be done when, without fault on his part, by reason of the discharge of witnesses or otherwise, a party would be cut off from an answer to the new testimony, which he might have made if it had been regularly given. ’ ’ Donald v. State, 11 O. C. Dec., 483.

As to the errors in the charge of the court, we are of the opinion that where the accused has attempted to justify the homicide on the ground of self-defense, it is error for the court to charge the jury:

“That if the killing by the defendant is established by the state, then the -burden of proof .is upon the defendant to establish by a preponderance of the evidence that what he did was necessary to be done in order to save his own life or to protect himself from great bodily harm.”

While it is true that the burden of self-defense is upon the defendant, and he must establish this by a preponderance of the evidence, yet -the killing by the defendant that must be first established by the state is an unlawful killing, such an unlawful killing as would be embraced in murder of the second degree, or manslaughter, or the degree of crime charged.

It is further urged that in charging the jury upon the subject of self-defense as to the belief that should exist in the mind of the accused, the court charged that the- defendant would be justified in taking the life of the deceased if he, acting reason-’ ably and prudently under the circumstances, believed that he was in danger of loss of life or great bodily harm, or that the defendant would not be responsible, unless the circumstances w.ere such as to have afforded a reasonable ground to believe that there was not any danger imminent to him acting reasonably and prudently under the circumstances. We think this was error. “Homicide is justifiable on the ground of self-defense, where the slayer in the careful and proper use of his faculties, bona fide believes and has reasonable ground to believe that he is in imminent danger of death or great bodily harm, and that his only means of escape from such danger will be by" taking the life of his assailant, although in fact he is mistaken as to the existence or imminence of the danger. The fact of the existence of such danger is not an indispensable requisite. Marts v. State, 26 O. S., 162; Martin v. State, 9 O. C. Dec., 621.

The defendant in such a case is not to be judged as to whether he was acting prudently under the circumstances, and thereby allow the jury to determine whether under the circumstances they as prudent persons would have acted as he acted or whether he ’acted as some other prudent person would act. His plea of self-defense must be determined upon the question whether or not, in the careful and proper use of his faculties, he bona fide believed and had reasonable ground to believe that he was in imminent danger of death or great bodily harm, and that his only means of escape from this danger would be by taking the life’ of his assailant, and this must be judged, from his standpoint under all the circumstances at the time.

We see no objection to the use. of the word “honestly” in connection with the word belief. This did not put in issue the question as to the honesty or dishonesty of the defendant, but rather was used by the court in the sense of a bona fide belief or sincere belief. We do not think the other claims of error in the charge, if indeed there are such, are prejudicial to plaintiff in error, and while we would not disturb this verdict upon the weight of the testimony alone, yet we feel for the reasons above stated the judgment should be reversed and a new trial granted.


text:
    GAS AND OIL.
    Circuit Court of Wood County.
    John Baker v. Hamilton H. Stow et al.
    Decided, October 24, 1892.

      Construction of Oil Lease — Requirement as to When Lessee shall begin Work — Effect of Payment of Rental without Commencing Operations — Extension of Lease Thereby.

    1. An oil lease providing that “operations * * * shall be commenced and one well he completed within six months from the date thereof, and in case of failure to complete one well within such time,” the lessees promise to pay “ten dollars per annum within three months after the time for completing such wells, * * * until one well shall be completed, and a failure to complete one well, or to make such payment * * * renders this lease null and void,” requires the lessee to commence work upon the premises within such six months period. Paying the stipulated sum per annum, without commencing operations to sink a well, does not give lessees the option to sink a well or not as they choose.
    2. The provision of a gas and oil lease, that the annual rental shall be payable within three months after the six months during which a well was to be completed, extends the lease one year from the termination of the six months’ period, and not from the additional three months’ period.
    Haynes, J.; Scribner, J., and Bentley, J., concur.
   The petition in this ease was filed June 9, 1890, for the cancellation of a certain instrument known as an oil lease; afterwards on November 8, 1890, an amended petition was filed, setting up in detail the facts relied upon by plaintiff for its cancellation; it appears by this petition that there was really three papers that the plaintiff was seeking to have canceled. The first was a memorandum of agreement made on July 17, 1886, by one John Baber and E. A. James.and J. Henline, and purports to be a lease on the John Baker premises for oil purposes, or more properly speaking, an agreement rather than a lease. That paper had been assigned so as to come into the hands of some of the defendants .as lessees.

The petition further states that on October 26, 1889, Baker made another agreement to one Aaron Therweeter of Toledo, which is an agreement for oil purposes of the same premises; that on said date there was an agreement made between said plaintiff and Hamilton IT. Stow, which agreement relates to the sinking of wells and obtaining oil and gas on the same premises. These papers it seems were held at the time of the filing of the suit by Van Vleck and Stow, the real parties defendant.

The petition avers that the parties have wholly failed to perform on their part the things by them to be done, .and the time within which the agreement was to be performed had expired; that the rights of the parties had terminated, and asks for the cancellation of the instrument and an injunction against the lessees from further entering upon the premises and sinking wells, claiming they were making threats to do so.

All three of the leases are upon the same form, and contain the same covenants, the difference being in the date, and perhaps in the time which they were'to run; one being for three years and one for five years on certain conditions. The defendants claim that they tendered the amounts that are stated in the petition by way of rent, and that they had the right to go on and sink wells.

Without going into a discussion of the material conditions of the covenants of the contract, I will say that they provide, in substance, that in consideration of the covenants and agreements hereinafter named, the parties have granted, demised and let unto the parties of the second part, their heirs and assigns, for the purpose and with the exclusive right of drilling and operating for petroleum, oil and gas, all that certain tract or parts of land situate in Montgomery township, Wood county, and the state of Ohio, giving boundaries and description of the premises; the parties of the second part, their heirs and assigns, to have and to hold the said premises, for the said purposes only, for and during the term of five years from date thereof, and as much longer as oil and gas is found in paying quantities.

The said parties of the second part in consideration of the said grant and demise, agree to give to the said party of the first -part the full equal one-eighth of all the petroleum oil obtained or produced on the premises herein leased, and to deliver the same in tanks or pipe lines to the credit of the party of the first part; and further on—

“Operations on the above described premises shall be commenced and one well completed within six months from the date thereof, and, in case of failure to complete one well within such time, the parties of the second part agree to pay annually to the party of the first part for such delay the sum of $10 per annum within three months after the time for completing such wells as above specified, payable directly to the party of the first part; and the party of the first part agrees to accept such sum as full consideration and payment for such yearly delay, until one well shall be completed, and a failure to complete one well or to make such payments within such time as above mentioned, renders this lease null and void and to remain without effect between the parties thereto.”

Now as to all these leases, it is admitted by the pleadings that no well was ever sunk upon the premises, and the simple question is, whether those leases are still in force and were at the time the suit was commenced, which calls upon the court for a construction of those clauses which I have already read. We are very clearly satisfied that the true construction of this contract is: that the parties are to commence a will within six months from the date of the contract. It is apparent from the reading of the contract that the parties were about to proceed to do that, which is to a certain extent uncertain as to results. It may be that no oil and gas will be found on the property.

The testimony shows that the cost of sinking one of these wells -is $1,000 to $1,500, or perhaps even more. If oil or gas is not found, of course that amount is lost to the party who sinks the well. There is a hazard in the business with reference to which the contract is undoubtedly made. The party who owns the land makes no expenditures, and lie receives but a small portion of tbe oil that is found. From a reading of tbe contract it is evident that the intention of the parties was that the work should commence in a short time — the period being six months.

It will be noted that the terms of the contract are, that he shall pay the sum of $10 per annum within three months after the time for completing the well as above specified; and the party of the first part agrees to accept such sum as full consideration and payment for such yearly delay, until one well shall be completed, and a failure to complete one well or make such payments within such time as above mentioned renders this lease null and void. At the time they complete one well the rent, of course, terminates. That is the understanding of the parties, and he stands then the same as if he had completed the well within six months, and his rights under the lease from that time depended upon the results of his investigations.

It will be seen that it is further provided that a failure to complete one well, or to make such payment, renders this lease null and void. The construction claimed for this lease, as we understand it to be on the part of the lessees, is that if they fail to sink a well within six months, by paying the sum stipulated in the instrument, they have the right — the option during the whole of the five years — to commence work, or sink a well as they may choose; in other words, that down payment of $10 a year for the use of these premises gives the lessees the option to sink a well or not as they choose.

We have held heretofore, and reiterate it in the present ease, that the party must, in order to avail himself of his rights under the contract, commence work within the period of six months.

If having done so, he shall fail to complete the well, then upon payment of the sum stipulated, he shall have the right to complete his well thereafter. That he shall proceed with reasonable diligence to finish his well — to. carry out what is the intention of the parties. The intention of the lessor is to have his property investigated; to ascertain whether or not there is any oil on the premises so that he may have the benefit of it, and if there is not, that he may know it.

Now with that view of the case briefly stated: under the facts in this case, the two leases dated in 1888, are in our opinion, in our judgment null and void; that the rights of the parties have terminated under them, and the plaintiff has the right to have the lease canceled, and the parties enjoined from attempting to enter upon the premises under these leases.

The further question is made here .upon the first lease, that is, the lease dated July 19, 1886, and was made originally between the plaintiff and E. A. James and J. ITenline, which has been transferred from party to party, until, I believe, it is now claimed to be held by Van Yleck, the defendant in this case.

In that case there was no work commenced within the period of six months. The question in the ease arises upon the actions of the parties after the expiration of the six months.

This lease appears to have been on May 14, 1889, assigned by Henline to a man by the name of Evans, and on December 30, 1889, to have been assigned to a man by the name of Huffman; there are other assignments which are said to have been made, but they are not in the lease itself.

It appears, however, that on April 12, 1887, that $10 was paid on the within lease as annual rental, and the receipt is signed by John Baker. Afterwards, the defendant, Yan Yleck, had negotiations with some parties for the purchase of this lease and their right under it. It not appearing that this annual rent had been paid, he said he would not purchase it until the rent was paid, and thereupon the parties went to Baker and received from him a receipt, which reads as follows:

“January 4, 1890. I hereby receive $20, the rental in full to April, 1890, on the within lease. Signed, John Baker, and witnessed by John’ Edmonds and Almon Baker.”

It is said, however, that in fact no money was paid. Baker understood that this instrument was being assigned in order to enable the parties to negotiate the lease. They had then entered into negotiations to transfer the lease to Mr. Yan Yleck, and he testified that he paid them, and paid them without any knowledge that this money had not been paid, and with full belief that the money had been paid Baker, and we think he stands as a bona fide purchaser of the lease, relying upon this paper as being a genuine receipt. Since that time no rents have been received by Baker. The rents have been tendered but he has declined to receive them.

This original suit was commenced June 9, 1890, for the purpose of cancelling this lease; now the question is, what are the rights of the parties under this state of facts 1

The lease was dated July 17, 1886. The six months within which the work was to be done would have expired on January 17, 1887, At that time the plaintiff had the right, if he chose, to declare the agreement null and void, and to enforce its cancellation.

The parties if they had commenced work would have had the right within three months to have made a tender of the yearly rental, and it appears that April 12, being six days prior to the expiration of the three months expiration of the six months, Baker received the $10 annual rental on the lease, and we think he must be held by so doing to have' waived to a certain extent the non-performance of the agreement and the commencement of the work within six months. It appears that no rents were paid on the next year, and none were tendered, but on January 14, 1890, the further sum of $20 was receipted for, and that the rental was to be to April 12, 1890.

Now, right here, it appears that the parties were of the opinion that by the payment of the rent, instead of being extended from the expiration of the six months, would be extended for a year from the time of the ending of the three months, or nine months from the expiration of the lease, and hence they have said that this lease was conditioned until April 12, 1891, but we think a fair construction of the lease is, that by payment of the $10, that it extended it only for a year from the expiration of the six months; that the real fact is that the lease was extended simply and purely until April 12, 1890, and no longer. The effect of that is to give them the right within a year to sink a well the same as if they had a right to sink within six months. If the parties did not do it within the expiration of the year, the lessor would have the right to declare the lease null and void; if he received rent for another year, he would have the right to extend it another year.

The lease was in fact kept alive until April 12, 1890, and no longer, and inasmuch as no work was commenced prior to April 12, 1890, the party -had his option at that date to either receive another years rent, or declare the lease null and void. He determined to declare the lease terminated and commenced suit to have the lease canceled, and, under this state of facts, we are of the opinion that he is entitled to a decree cancelling the lease, and may therefore be entered accordingly, and the plaintiff recover his costs.


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    NO LIEN AGAINST TORT FEASOR FOR ATTORNEY’S SERVICES.
    Circuit Court of Hamilton County.
    Gustav R. Werner v. George Zehler Provision Company.
    Decided, January 8, 1910.
    An action does not lie by an attorney against a tort feasor for the attorney’s share of the amount paid to his client by the tort feasor by way of compromise and in full settlement for injuries received by the said client.

      G. R. Werner, for plaintiff.

      Robertson & Buchwalter, contra.
    The plaintiff was employed by Frank Iiusz to prosecute a claim against the George Zehler Provision Co. for personal injuries, and alleged that knowing of his employment and of the lien he had for services on whatever amount might be recovered, the defendant company through their counsel, settled with PIusz for $500 and paid the entire amount direct to him. The plaintiff claimed that under his contract with PIusz he was to receive one-half, and sued for $250. Judgment was given below for the defendant.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   The judgment will be affirmed upon the authority of Weakley v. Hall, 13 Ohio, 167, and Pennsylvania Co. v. Thatcher, 78 O. S., 175.


text:
    AS TO PAYMENT OF A NOTE BY USURIOUS INTEREST.
    Circuit Court of Hamilton County.
    W. F. Margeson v. Eckart Kellar.
    Decided, January 26, 1910.

      Pleading — Want of Consideration and Payment of a Note Distinct Defenses — Variance Between Allegations of Petition and the Evidence Submitted.

    Where payment is relied upon as a defense from liability upon a note, it is necessary that it should he pleaded; and it is error to admit evidence with reference to payment, or to charge the jury with respect thereto, where the only defense set up is want of consideration.

      Bates & Meyer, for plaintiff in error.

      Spencer M. Jones, contra.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   Plaintiff in error’s action below declared upon a promissory-note. Defendant’s answer sets up a want of consideration for the same.

Tbe case was tried upon the theory that the note was paid by defendant in error by way of usurious interest paid thereon, and the court in its charge to the jury stated that payment in this matter could be proven by defendant in error.

Want of consideration for a note and payment of the same are two separate, distinct defenses, and if defendant in error relied upon payment to discharge his liability it was necessary that it should be pleaded (Lord v. Graveson, 4 C. C.—N. S., 268). As this was not done, the court therefore erred in admitting evidence relative thereto, and in charging the jury in that respect.

Upon the whole record we do not feel that this court would be justified in entering judgment for plaintiff in error. The judgment of the court will therefore be reversed and a new trial granted,'so that upon proper pleadings the matter in controversy can be determined as the justice of the case would seem to demand.