text:
    TRUSTS — -WILLS.
    [Cuyahoga (8th) Circuit Court,
    June 2, 1911.]
    Marvin, Winch and Henry, JJ.

      Claudia Morris Collings v. Frank E. Davis.
    Devise of Income of $18,000 to Worthy Poor Payable at Rate of $10. per Month Invalid, Fails to Create Charitable Trust.
    A clause in a will providing: “The surplus money he (the executor) shall apply at the rate of $10.00 a month during the winter months, to buy flour and coal for worthy poor,” where said surplus money amounts to $18,000, is incapable of execution, invalid and insufficient to create a charitable trust. [Syllabus by the court.]
    Error to common pleas court.

      Laubscher & Kees, for plaintiff in error:
    Attempted bequest is vague, indefinite and uncertain. Adye v. Smith, 44 Conn. 60 [26 Am. Rep. 424] ; Holland v. Alcoclt, 108 N. Y. 312 [16 N. E. Rep. 305; 2 Am. St. Rep. 420] ;Bead v. Williams, 125 N. Y. 560 [26 N. E. Rep. 730; 21 Am. St. Rep. 748] ; Beeltman v. Bonsor, 23 N. Y. 298 [80 Am. Dee. 269] ; American Tract Soc. (Treas.) v. Atwater, 30 Ohio St. 77 [27 Am. Rep. 422]; LePage v. McNamara, 5 Iowa 124; Moran v. Moran, 104 Iowa 216 [73 N. E. Rep. 617; 39 L. R. A. 204; 65 Am. St. Rep. 443] ; Grimes v. Harmon, 35 Ind. 198 [9 Am. Rep. 690] ; Cruse v. Axtel, 50 Ind. 49; Craig v. Secrist, 54 Ind. 419; Erslcine v. Whitehead, 84 Ind. 357; McHugh v. McGole, 97 Wis. 166 [72 N. W. Rep. 631; 40 L. R. A. 724; 65 Am. St. Rep. 106] ; Heiss v. Murphey, 40 Wis. 276; Prichard v. Thompson, 95 N. Y. 76 [47 Am. Rep. 9]; Power v. Cassidy, 79 N. Y. 602 [35 Am. Rep. 550] ;. O’Hara, In re, 95 N. Y. 403 [47 Am. Rep. 53]; Goddard v. Pomeroy, 36 Barb. (N. Y.) 546; Bridges v. Pleasants, 39 N. C. (4-Ired. Eq.) 26 [44 Am. Dec. 94] ; Brennan v. Winkler, 37 S. C. 457 [16 S. E. Rep. 190]; Fuller, In re, 75 Wis. 431 [44 N. W.. Rep. 304] ; McAlister v. Burgess, 161 Mass. 269 [37 N. E. Rep.. 173; 24 L. R. A. 158] ; Dashiell v. Attorney-General, 5 Har. & J. (Md.) 392 [9 Am. Dec. 572] ; White v. Fisk, 22 Co'nn. 31; Bristol v. Bristol, 53 Conn. 242 [5 Atl. Rep. 687] ; Hughes v. Daly, 49‘ •Conn. 34; Ingraham v. Sutherland, 89 Ark. 596 [117 S. W. Rep.. 748],
    No trust is created. Bowen v. Bowen, 38 Ohio St. 426; Mc-Neill v. Hagerty, 51 Ohio St. 255 [37 N. E. Rep. 526; 23 L. R.. A. 628] ; Conway v. Armington, 11 R. I. 116; Cornwall v. Todd,. 38 Conn. 443; Hawley, In re, 104 N. Y. 250 [10 N. E. Rep. 352] ;. Bird v. Merklee, 144 N. Y. 544 [39 N. E. Rep. 645; 27 L. R. A.. 423] ; Wetmore v. Parker, 52 N. Y. 450; 6 Cyc. 954.
    Ohio cases reviewed. Miller v. Teachout, 24 Ohio St. 525 American Tract Soc. v. Atwater, 30 Ohio St. 77 [27 Am. Rep. 422] ; Heiss v. Murphey, 40 Wis. 276; Hunt v. Edgerton, 29 O. C. C. 377 (9 N. S. 353) ; Hadley v. Hadley, 147 Ind. 427 [46 N. E. Rep. 823] ; Hunt v. Fowler, 121 111. 269 [12 N. E. Rep. 331;, 17 N. E. Rep. 491],

      C. W. Swartzel, for defendant in error:
    Construction of wills, primary and paramount rule. Richey v. Johnson, 30 Ohio St. 288; Starling v. Price, 16 Ohio St. 29.;. Parker v. Parker, 13 Ohio St. 95; Mather v. Copeland, 7 Dec. 257' (5 N. P. 151); King v. Beck, 15 Ohio 559; Williams v. Veach, IT Ohio 171 [49 Am. Dec. 453] ; Jewett v. Jewett, 12 Circ. Dee. 131 (21 R. 278) ; 14 Michie’s Dig. 634; Devenney v. Devenney, 74-Ohio St. 96, 100 [77 N. E. Rep. 688].
    Bequests for charitable purposes favored. Hunt v. Edger-ton, 29 O. C. C. 377 (9 N. S. 353) ; Hunt v. Fowler, 121 111. 269' [12 N. E. Rep. 331; 17 N. E. Rep. 491] ; Miller v. Teachout, 24-Ohio St. 525; McIntyre Poor School (Tr.) v. Manufacturing Co.. 9 Ohio 203 [34 Am. Dee. 436] ; Landis v. Wooden, 1 Ohio St. 160’ [59 Am. Dec. 615] ; Zanesville Canal <& Mfg. Co. v. Zanesville,.
      20 Ohio 483; O’Neal v. Caulfield, 8 Dec. 248 (5 N. P. 149) ; Cincinnati v. McMicken, 3 Circ. Dec. 409 (6 R. 188) ; affirmed, no op., McMicken v. Cincinnati, 29 Bull. 168; Sowers v. Cyrenius, 39 Ohio St. 35 [48 Am. Rep. 418].
    Charitable trusts, public charity defined. Gilmour v. Pelton, 5 Dec. Re. 447 (6 Am. L. Rec. 26) ; Mannix v. Purcell, 10 Dec. Re. 817 (10 Bull.'337) ; Gerke v. Purcell, 25 Ohio St. 229; Sowers v. Cyrenius, 39 Ohio St. 29 [48 Am. Rep. 418] ; Meyers v. Akins, 4 Circ. Dec. 425 (8 R. 228) ; United Presbyterian Theological Seminary v. Little, 25 O. C. C. 609 (2 N. S. 540) ; 6 Cyc. 900, 340, 949; Watterson v. Holliday, 15 Dec. 271 (2 N. S. 693).
    Bequests to the poor. Page, Wills 639, 647; Grant v. iSaunders, 121 Iowa 80 [95 N. W. Rep. 411; 100 Am. St. Rep. -310] ; Scott v. Marion Tp. (Tr.), 39 Ohio St. 153; Thompson v. .Brown, 25 Ky. Law Rep. 371 [75 S. W. Rep. 210] ; Tincher v. A.rnold, 147 Fed. Rep. 665 [77 C. C. A. 649; 7 L. R. A. (N. S.) 471; 8 Ann. Cas. 917] ; Kronshage v. Varrell, 120 Wis. 161 [97 N. W. Rep. 928] ; Hunt v. Edgerton, 29 O. C. C. 377 (9 N. S. 353), affirmed; no op., Edgerton v. Hunt,-75 Ohio St. 594; Missionary Society’s Appeal, 30 Pa. St. 425; Bussell v. Allen, 107 U. S. 163 [2 Sup. Ct. Rep. 327; 27 L. Ed. 397] ; 2 Story, Eq. Jur. See. 1181; 5 Am. & Eng. Enc. Law 905, 911; Perry, Trusts 735, 748; Sawtelle v. Witham, 94 Wis. 412 [69 N. W. Rep. 72] ; Botch v. Emerson, 105 Mass. 431; Mills v. Newberry, 112 111. 123 [54 Am. Rep. 213] ; Beekman v. Bonsor, 23 N. Y. 298 [80 Am. Dee. 269] ; Miller v. Porter, 53 Pa. St. 292; Harrington v. Pier, 105 Wis. 485 [82 N. W. Rep. 345; 50 L. R. A. 307; 76. Am. St. Rep. 924].
    Power of selection in testamentary trustee. Miller v. T.each-<out, 24 Ohio St. 525; Witman v. Lex, 17 Serg. & R. 88; Kinike’s Estate, 155 Pa. St. 101 [25 Atl. Rep. 1016] ; Vidal v. Girard, 43 IT. S. (2 How.) 127 [11 L. Ed. 205] ; Erskine v. Whitehead, 84 Ind. 357, 360; Hesketh v. Murphy, 36 N. J. Eq. 304.
    Meaning of words “worthy poor.” Hunt v. Fowler, 121 111. '269 [12 N. E. Rep. 331; 17 N. E. Rep. 491] ; Fay v. Howe, 136 Cal. 599 [69 Pac. Rep. 423] ; Kasey v. Fidelity Trust Co. 131 Ky. 604 [115 S. W. Rep. 737] ; Nilson, In re, 81 Neb. 809 [116 N. W. Rep. 971] ; Grant v. Saunders, 121 Iowa 80 [95 N. W. Rep. -411; 100 Am. St. Rep. 310].

      Want of geographical limitation as to beneficiaries. LePage v. McNamara, 5 Iowa 124; Moran v, Moran, 104 Iowa 216 [73 N. W. Rep. 617; 39 L. R. A. 204 ; 65 Am. St. Rep. 443] ; Grimes v. Harmon, 35 Ind. 198 [9 Am. Rep. 690] ; Fuller, In re, 75 Wis. 431 [44 N. W. Rep. 304] ; Heiss v. Murphey, 40 Wis. 276; Prichard y. Thompson, 95 N. Y. 76 [47 Am. Rep. 9]; Goddard v. Pomeroy, 36 Barb. (N. Y.) 546; Bead v. Williams, 125 N. Y. 560 [26 N. E. Rep. 730; 21 Am. St. Rep. 748]; Bridges v. Pleasants, 39 N. C. (4 Ired. Eq.) 26 [44 Am. Dee. 94] ; 2 Pomeroy, Eq. •Jurisp. Sec. 1029.
    Power is given the executor to select individual beneficiaries. Hinckley's Estate, In re, 58 Cal. 457; Treat’s Appeal, 30 Conn. 116; Guilfoil v. Arthur, 158 111. 600 [41 N. E. Rep. 1009] ; Bart-let v. King, 12 Mass. 536 [7 Am. Dec. 99] ; Simpson v. Welcome, 72 Me. 496 [39 Am. Rep. 349] ; Hesketh v. Murphy, 36 N. J. Eq. 304; Pickering v. Shotwell, 10 Pa. St. 23; Clement v. Hyde, 50 Yt. 716 [28 Am. Rep. 522] ; New Haven Institute v. New Haven, 60 Conn. 32 [22 Atl. Rep. 447]; Bronson v. Strouse, 57 Conn. 147 [17 Atl. Rep. 699] ; T-aylor, In re, 36 Wis. 534; Bodge v. Williams, 46 Wis. 70 [1 N. W. Rep. 92; 50 N. W. Rep. 1103] ; Perry, Trusts Sec. 732.
    General American rule. Boughten v. Vandever, 5 Del. Ch. ■51; Hunt v. Fowler, 121 111. 269 [12 N. E. Rep. 331; 17 N. E. Rep. 491] ; Erskine v. Whitehead, 84 Ind. 357; Nilson, In re, 81 Neb. 809 [116 N. W. Rep. 971]; Burr v. Smith, 7 Yt. 241 [29 Am. Dee. 154] ; Leggett v. Perkins, 2 N. Y. 297; McIntyre Poor School (Tr.) v. Manufacturing Co. 9'Ohio 203 [34 Am. Dec. 436]; Soioers v. Cyrenius, 39 Ohio St. 29 [48 Am. Rep. 418]; Speer v. Colbert, 200 U. S. 130 [26 Sup. Ct. Rep. 201] ; Tincher v. Arnold, 147 Fed. Rep. 665 [77 C. C. A. 649; 7 L. R. A. (N. S.) 471; 8 Ann. Cas. 917] ; Miller v. Teachout, 24 Ohio St. ■535.

      Affirmed, no op., Davis v. Collings, 87 O. S. 504.

   WINCH, J.

This was an action to construe a will containing the following provision:

“The surplus money he (the executor) shall apply at the rate of $10.00 a month during the winter months, to buy flour and coal for worthy poor.”

The surplus money mentioned amounts to $18,000.

The common pleas court held that this clause of the wilL creates a legal charitable trust to be administered by the executor, as trustee, who is vested with power to apply, distribute and disburse the fund, and incidental authority to select from the class named, to wit: “worthy poor,” the particular objects,

or individual beneficiariés of the testatrix’ bounty.

We think this judgment was erroneous.

This clause of the will is incapable of execution. It clearly means that the executor is to expend $3,0 or $40 each year in buying flour and coal for the worthy poor; the suggestion that, he is to give $10 to each poor person he selects, is not sustained by any reading of the plain terms of the will.

Now, the interest on $18,000 at 4 per cent is $720, so that this fund, after paying out $40, would accumulate at the rate-of $680 a year, and yet the plain language of the will is that the principal of the fund shall be expended for the benefit of the worthy poor.

It is clear the testatrix had no idea that the “surplus” bf" her estate would be so large. She doubtless thought a few hundred dollars would be left which the executor could spend in. the manner mentioned, within a very few years, if not in one-winter. The direction to expend the principal of the fund does not warrant the creation, by construction, of a perpetual and increasing charitable fund, to be administered at the insignificant, rate of $40 per year for all time to come.

The two thoughts are contradictory, and so, as said, the-will is incapable of execution.

There are other reasons why this clause of the will is invalid ; the beneficiaries are not restricted to any locality, but embrace the whole world. The executor might very reasonably take the fund, and depart with it to China, there to expend it at the rate of $3.0 per month, during the winter months, if they have any winter there, for the benefit of the worthy poor of China, who exist, we are told, in millions. '

On this point, as well as upon the proposition contended. for by counsel for plaintiff in error, that the will gives no power to the executor to select beneficiaries, (which we think is well taken) see authorities cited in his brief.

There are cases both ways upon these points, and counsel for the executor has marshalled the authorities sustaining Ms views of the will in an exceedingly able brief, but our views of the peculiar and ambiguous wording of this particular will preclude our reaching any other conclusion than that the terms of this will cannot possibly be carried out.

As there are no disputed questions of fact in the case, it follows not only that the judgment of the common pleas court should be reversed, but that judgment should here be entered in favor of the heir at law.

Judgment reversed and judgment for plaintiff in error.

Marvin and Henry, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    LIBEL AND SLANDER — MALICIOUS PROSECUTION.
    [Hamilton (1st) Circuit Court,
    July 29, 1911.]
    Smith., Swing and Jones, JJ.
    Jessie Parker v. Mamie Roddy.
    Suspicion Divulged to Police by Owner of Stolen Property as to Thief Privileged.
    A suspicion divulged to a police officer by the owner of stolen property as to the person committing the theft is privileged; hence, it cannot be made the basis of an action for slander or false imprisonment.
    Error to common pleas court.

      Scott Bonham,, for plaintiff in error:
    Cited and commented upon by the following authorities:— Carey v. State, 70 Ohio St. 121 [70 N. E. Rep. 955] ; Liles v. Gaster, 42 Ohio St. 636; Lanning v. -Christy, 30 Ohio Si. 115 [27 Am. Rep. 431] ; 1 Cooley, Torts (3 .ed.) p. 434; Gam v. Lockard, 108 Mich. 196 [65 N. W. Rep. 764] ; Shinglemeyer v. Wright, 124 Mich. 231 [82 N. W. Rep. 887; 50 L. R. A. 129]; Pierce v. Oard, 23 Neb. 828 [37 N. W. R.ep. 677] ; Lames v.

      Whittaker, 123 Mass. 342; Wieman v. Malee, 45 Mich. 484 [40 Am. Rep. 477]; Toogood v. Spyring, 4 Tyrw. 594; Drenman v. Bigg, 1 Camp. 269; Brow v. Hathaway, 13 Allen (Mass.) 242; Moore v. Thompson, 92 Mich. 498 [52 N. W. Rep. 1000] ; Bacon v. Railway, 66 Mich. 166 [33 N. W. Rep. 181] ; Johnson v. Evans, 3 Esp.,32; Townsend, Lib. & Sland. (4 ed.) p. 298, Sec. 335; Smith v. Kerr, 1 Barb. (N. Y.) 155; Grimes v. Coyle, 6 B. Mon. (Ky.) 301; Newell, Lib. & Sland. (2 ed.) p. 500; Worthington v. Scribner, 109 Mass. 487 [12 Am. Rep. 736] ; Vogel v. Gruaz, 110 U. S. 311 [4 Sup. Ct. Rep. 12; 28 L. Ed. 158] ; Gabriel v. McMullin, 127 Iowa 426 [103 N. W. Rep. 355] ; Christman v. Christman, 36 111. App. 567; Billings v. Fairbanks, 136 Mass. 177; Chapman v. Battle, 124 Ga. 574 [52 S. E. Rep. 812] ; Howard v. Thompson, 21 Wend. (N. Y.) 325; Briggs v. Garrett, 111 Pa. St. 404 [2 Atl. Rep. 513; 56 Am. Rep. 274] ; Oliver v. Fate, 43 Ind. 132; Billings v. Fairbanks, 139 Mass. 66; United States v. United States, 4 Wash. C. C. 726; State v. Balch, 31 Kan. 471 [2 Pac. Rep. 609] ; Blair v. Burroughs, 1 O. S. U. 104 (23 Bull. 180) ; Torrey v. Field, 10 Yt. 353; Lake v. King, 1 Saund. R. 130; Delaney v. Jones, 4 Esp. R. 191; Harper v. Harper, 73 Ky. (10 Bush.) 447; Hess v. Sparks, 44 Kan. 465 [25 Pac. Rep. 580; 21 Am. St. Rep. 300] ; Swan v. Thompson, 124 Cal. 194 [56 Pac. Rep. 878]; Gilman v. McClatchy, 111 Cal. 606 [44 Pac. Rep. 241] ; Stevenson v. Ward, 48 App. Div. 291 62 N. Y. Supp. 717] ; Bliss Code Plead. 125; Anderson v. Hill, 53 Barb. (Ñ. Y.) 238.

      M. C. Lykins, for defendant in error.
   JONES, J.

The action below was one for damages by defendant in error against plaintiff in error. The petition contained two causes of action, namely — slander and false imprisonment.

The evidence disclosed that several articles had been stolen from the Parker residence. Shortly thereafter a detective of the city police department called upon Mrs. Parker and it was to him that she first divulged her suspicion that Miss Roddy was the guilty party.

Later interviews with police officers followed in the presence of Miss Roddy and at the trial of the ease below the detectives and Miss Roddy were permitted to testify as to accusations made by Mrs. Parker on those occasions. We think these communications were privileged and that it was error to admit them. Liles v. Gaster, 42 Ohio St. 631, 635, 636; Cooley, Torts 211; 1 Cooley, Torts (3 ed.) 434, 436; Garn v. Lockard, 108 Mich. 196 [65 N. E. Rep. 764].

Reversed.

Smith and Swing, JJ., concur.


text:
    EXECUTORS AND ADMINISTRATORS.
    [Hamilton (1st) Circuit Court,
    April 6, 1912.]
    Smith, Winch and Jones, JJ.
    (Judge Winch of the 8th circuit sitting in place of Judge Swing.)

      Pearl R. Lamkin v. John F. Robinson.
    Daughters Having Confirmed Father’s Use of Dividends of Their Inherited Stock Cannot Rescind Written Agreement During Such Power..
    A written agreement hy daughters, authorizing their father, who was their guardian and holding stocks inherited hy them from their mother, to retain possession thereof and collect and use the dividends as long as he lived, will not he rescinded and judgment given for the dividends, unless úpon strong and convincing evidence, especially since the daughters had appeared in probate court and asked to have their father’s accounts confirmed and for several years before execution of such agreement permitted him to apply the dividends to his own use.
    [Syllabus approved by the court:]
    Error to common pleas court.

      Healy, Ferris & McAvoy, for plaintiff in error.

      Stephens, Lincoln & Stephens and Charles M. Leslie, for defendant in error:
    Cited and commented upon by the following authorities Cincinnati v. Gas L. & C. Co. 53 Ohio St. 278 [41 N. E. Rep. 239] ; Kling v. Bordner, 65 Ohio St. 86 [61 N. E. Rep. 148]; Kinney v. Hamilton Co. (Comrs.) 4 Circ. Dee. 448 (8 R. 433) ; Meaeham, Agency Sees. 242, 243; Bergen v. Bennett, 1 Cai. Cas.. (N. Y.) 1 [2 Am. Dee. 281] ; Knapp v. Alvord, 10 Paige (N... Y.) 205 [40 Am. Dec. 241] ; Boring v. Marsh, 73 U. S. (6 Wall.) 337 [18 L. Ed. 802] ; Brandreth, In re, 169 N. Y. 437 [62 N. E. Rep. 563; 58 L. R. A. 148] ; Mills v. Davison, 54 N. J. Eq. 659-[35 Atl, Rep. 1073; 35 L. R. A. 113; 55 Am. St. Rep. 594] ;, Wright v. Wilkin, 2 B. & S. 232; Ashuelot Nat. Bank v. Keene,. 74 N. H. 148 [65 Atl. Rep. 826; 9 L. R. A. (N. S.) 758] ; Barry v. Lambert, 98 N. Y. 300 [50 Am. Rep. 677]; Locke v. Loan &■ Tr. Co. 140 N. Y. 135 [35 N. E. Rep. 578]; Carpenter v. Soule,. 88 N. Y. 251 [42 Am. Rep. 248] ; Cooper v. Burr, 45 Barb. (N.. Y.) 7; Beaumont v. Beaumont, 152 Fed. Rep. 55 [81 C. C. A. 251] ; Thornton, Gifts See. 139; Miller v. Neff, 33 W. Va. 197' [10 S. E. Rep. 378; 6 L. R. A. 515]; Wing v. Merchant, 57 Me. 383; Allen v. Cowan, 23 N. Y. 502 [80 Am. Dec. 316] ; Porter-v. Gardner, 60 Hun. 571 [15 N. Y. Supp. 398] ; Providence Institution for Sav. v. Taft, 14 R. I. 502; Cain v.. Moon, L. R. 2 Q. B. 283; Tenbrook v. Brown, 17 Ind. 410; Commonwealth v. Compton, 137 Pa. St. 138 [20 Atl. Rep. 417] ;. First Nat. Bank v. Holland, 99 Va. 495 [39 S. E. Rep. 126; 55-L. R. A. 155; 86 Am. St. Rep. 898]; Feed v. Copeland, 50 Conn. 472 [47 Am. Rep. 663] ; Gilkinson v. Railway, 47 App. Div.. .472 [63 N. Y. Supp. 792] ; Bond v. Beam, 72 N, H. 444 [57 Atl. Rep. 340; 101 Am. St. Rep. 686] ; Polley v. Hicks, 58 Ohio St. 218 [50 N. E. Rep. 809; 41 L. R. A. 858] ; Ridden v. Thrall, 125-N. Y. 572 [26 N. E. Rep. 627; 11 L. R. A. 684; 21 Am. St. Rep.. 758] ; Pierce v. Bank, 129 Mass. 425, [37 Am. Rep. 371] ; Watson v. Watson, 69 Vt. 243 [39 Atl. Rep. 201] ; Larrabee v. Hascall, 88 Me. 511 [34 Atl. Rep. 408; 51 Am. St. Rep. 440] ; Grover v. Grover, 41 Mass. (24 Pick.) 261; Hopkins v. Manchester, 16 R. I. 663 [19 Atl. Rep. 243; 7 L. R. A. 387]; Madeira’s Appeal, (Pa.) 4 Atl. Rep. 908; Basket v. Hassell, 107 U. S. 60Í [27 L. Ed. 500] ; 2 Pomeroy, Eq. Jurisp. Sec. 997; Flanders v. Blandy,. 45 Ohio St. 108 [12 N. E. Rep. 321] ; Young v. Young, 80 N. Y. 422 [36 Am. Rep. 634] ; Calkins v. Building & L. Assn. 126. Cal. 531 [59 Pac. Rep. 30] ; Candee v. Banff, 81 Conn. 372 [71 Atl. Rep. 551; 22 L. R. A. (N. S.) 568] ; Martin v. Martin, 170-111. 18 [48 N. E. Rep. 694] ; Locke v. Loan & Tr. Co. 140 N. Y.. 135 [35 N. E. Rep. 578] ; Stone v. Haekett, 78 Mass. (12 Gray) '227; Davis v. Ney, 125 Mass. 590 [28 Am. Rep. 272] ; Oreen v. Tulane, 52 N. J. Eq. 169 [28 Atl. Rep. 9] ; Gilman v. McArdle, '99 N. Y. 451 [52 Am. Rep. 41] ; Prindle v. Wood, 24 O. C. C. 74 (3 N. S. 641); Merritt v. Horn, 5 Ohio St. 307 [67 Am. Dec. .298] ; Cameron v. Fowler, 5 Hill. (N. Y.) 306; Penhall v. Elwin, 1 Sm. & G. 258; Shehy v. Cunningham, 81 Ohio St. 289 [90 N. E. Rep. 805; 25 L. R. A. (N. S.) 1194] ; Lawrence v. McCalmont, •43 U. S. (2 How.) 426 [11 L. Ed. 326] ; Equitable Nat. Bank v. Morrison, 7 Dee. 292 (5 N. P. 290) ; McAdams v. McAdams, 80 Ohio St. 232 [88 N. E. Rep. 542] ; Murray v. Hilton, 8 App. D. C. 282; Knox v. Singmaster, 75 la. 64 [39 N. W. Rep. 183] ; Berkemeyer v. Kellerman, 32 Ohio St. 239 [30 Am. Rep. 577] ; Carpenter v. Canal Co. 35 Ohio St. 307; Stivens v. Summers, 68 •Ohio St. 421 [67 N. E. Rep. 884] ; Duhme v. Mehner, 5 Dec. 107 (3 N. P. 266), affirmed, no op., Duhme v. Mehner, 65 Ohio St. •593; Telling,v. Sullivan, 32 O. C. C. 312 (14 N. S. 1) ; Crawford v. Zeigler, 84 Ohio St. 224 [95 N. E. Rep. 743] ; Graham v. Simon, 76 Ohio St. .77 [81 N. E. Rep. 170] ; Errett v. Howert, 78 Ohio St. 109 [84 N. E. Rep. 753].

      Affirmed, no co., ! r*^*'*H v, Robinson, 88 O. S. 603.

   JONES, J.

These cases are in this court on appeal from the court of •common pleas and were tried together. The plaintiffs each ask for a large judgment against defendant upon claims which are ■.simUar except in amount and based upon like transactions between the two plaintiffs and their father, the defendant.

When plaintiffs were small children their mother died possessed of certificates of stock of the par value of $95,000 which had been transferred to her by defendant, without consideration •and for precautionary reasons, about five years before her death which occurred in the year 1889.

After the death of the mother, the father was appointed guardian of the minor children and in the years 1896 and 1899, respectively, the plaintiffs became of age. Accounts in each case were soon filed in the probate court and were settled and approved. The former wards in each instance appeared in the probate court, receipted for the balances shown to be due them and in writing in the presence of the judge of said court asked, him to confirm the account.

It appears that the money was not, in fact, paid over to the-daughters and these suits were filed in October, 1908, for its recovery. The petitions allege, also, that the defendant continued to draw and appropriate to his use the dividends on these stocks: until the filing of these actions and pray for the recovery of the-dividends so collected.

On June 13, 1903, the daughter, Caroline, signed an agreement authorizing her father to retain possession of her certificates of stock and to collect and use the dividends thereon as. long as he lived. It also provided (Item 4) that in case of her death without issue before the death of defendant said stock was-to revert to him and become his property.

On March 3, 1905, the daughter, Pearl, signed an agreement of the same purport and containing the’same provisions.

The petitions allege that these agreements are void for reasons stated therein and ask that they be cancelled and annulled and that all dividends collected by defendant under their authority be adjudged to plaintiffs.

These agreements, so far as they related to the dividends, did- not change the situation of the parties. They simply created in the defendant, as a legal right, that which he had been exercising by the consent and acquiescence of plaintiffs since they became of age.

This long acquiescence, in connection with their approval of his accounts as guardian, in which act on their part there seems to have been a recognition of the propriety of his having the income from said stock from the date of their mother ’s death, should cause a court of equity to require strong and convincing evidence sustaining, at least, one of the grounds for rescission alleged in the petition.

In meeting this requirement and in sustaining the burden of proof resting upon them plaintiffs have failed, and this, too, with respect to the settlements in the probate court 'as well as to the agreements.

It is claimed that Item 4 of said agreements is testamentary in character and void for absence or inadequacy of consideration. As said item has nothing to do with the questions in this case and can have no effect until the death of one of the plaintiffs we have deemed it unnecessary to consider the validity of “Item i” and the decree may so recite.

The petitions are dismissed.

Smith and Winch, JJ., concur.


author: PER CURIAM.

text:
    DIVORCE AND ALIMONY — DOWER—PARTITION.
    [Licking (5th) Circuit Court,
    March Term, 1911.]
    Powell, Voorhees and Shields, JJ.

      Clarissa C. Hand v. Edward Kibler, Guardian.
    Wife Obtaining Divorce for Aggression of Husband not Divested of Dower in Lands not Granted to her as Alimony.
    A wife who procures a decree of divorce from her husband because of his aggression retains her right of dower in any real estate which he may own not granted to her as alimony; and where an action is brought for the partition of property in which he holds an undivided interest, his former wife may ask by answer and cross petition for an assignment to her of her inchoate contingent right of dower in her said former husband’s share of said property.-
    [Syllabus by the court.]
    Error to common pleas court.

      Reversed; no op., Kibler v Hand, 88 O. S. 533.

   PER CURIAM.

The petition in error filed in this ease is to reverse the judgment of the court of common pleas, in sustaining a demurrer to the answer and cross petition of this plaintiff in error, in a suit in said court in which partition was sought of certain lands described in the petition therein.

Edwin S. Hand, one of the defendants in said partition suit, was the owner of the undivided one-sixth part thereof. The plaintiff in error had formerly been the wife of the said defendant, Edwin S. Hand, but had procured a divorce from him before the commencement of said partition suit. Her answer and cross petition sets out that the divorce was procured by her upon the aggression of her husband, the said Edwin S. Hand. The defendant in error, Edward Kibler, is the duly appointed guardian of the said Edwin S. Hand. The plaintiff in error, by her answer and cross petition, claimed to be entitled to the value of her inchoate, contingent right of dower in the share of the said lands owned by her former husband, Edwin C. Hand.

• To her answer and cross petition, the defendant in error filed a demurrer, which was sustained in both the probate and common pleas courts. To the action of said court in sustaining said demurrer, this petition in error is filed.

Gen. Code 11991 provides that when a divorce is granted because of the husband’s aggressions “if the wife survives her husband, she also shall be entitled to her right of dower in his real estate not allowed to her as alimony, of which he was seized during the coverture, and in which she had not relinquished her right of dower.”

In other words, a wife who procures a divorce from her husband because of his aggression, retains her right of dower in any real estate that he may own not granted to her as alimony; and, so far as dower is concerned, stands in the same position as though no divorce had been granted, her dower right being reserved to her in the event that she survives her husband.

The Supreme Court of Ohio, in Mandel v. McClave, 46 Ohio St. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627], have decided in the first paragraph of the syllabus, commencing on that page:

“The contingent right of a wife, during her husband’s life, to be endowed of his real estate at his death, is property having a substantial value that may be ascertained with reasonable certainty from established tables of mortality, aided by evidence respecting the state of health and constitutional vigor of the husband and wife respectfully.”

If the right of the wife, who has procured a divorce, is the same as though no divorce had been granted, this holding of our Supreme Court applies to such right, and Mrs. Hand, in this case, would have a contingent right of dower in the share of the real estate described in the petition belonging to her husband, Edwin S. Hand, and the same would be a property right having a substantial value that could be ascertained with reasonable certainty.

It was said in argument that the only provision for the payment of the value of the contingent right of dower was provided by Gen. Code 11123, and applied in cases provided by the chapter on insolvent debtors. Said section provides:

“When real estate is to be sold as herein provided, the husband or wife of the assignor may be made a party, and file an answer in the court to have such real estate sold free of his or her contingent right of dower and to allow him or her in lieu thereof, out of the proceeds of the sale, such sum of money as the court deems the just and reasonable value of the dower interest therein. ’ ’

Gen. Code 11124 provides:

“That if the assignor and his wife jointly have executed a inortgage upon real estate so assigned, or when the assignor alone has executed a mortgage upon any of such real estate to secure the payment of purchase money, or a part thereof, the 'court shall order its sale free from the contingent right of dower cf such wife, and find and determine the just and reasonable value of her dower interests in the proceeds of sale remaining after the payment of such incumbrances as preclude her right to dower therein.”

In other words, the statute provides that the value of the wife’s dower shall only be computed in what remains after the payment of prior incumbrances; while in Mandel v. McClave, supra, quoted above, decides that the value of the wife’s dower interest shall be computed in the entire amount of the sale. We think that, under the constitutional provision which provides that all laws of a general nature shall have uniform operation throughout the state, every married woman, and every wife who has procured a divorce by reason of the husband’s aggression, is entitled to be paid the value of her inchoate, contingent right of dower in the entire proceeds of the sale of the lands in which she has such dower interest, upon a sale of the same by which such dower right might be defeated.

This is not inconsistent with the holding in the court in Stevens v. McCoy, 60 Ohio St. 547 [54 N. E. Rep. 517]. This case seems to be in conflict with the holding of the court in the case of Weaver v. Gregg, 6 Ohio St. 547 [67 Am. Dec. 355], It probably is not in conflict with the syllabus of that case, in which'it is said that “a sale, under the act ‘to provide for the partition of real estate,’ of an estate held in common, divests the wife of a cotenant in fee of the estate, of her inchoate right of dower therein, and passes the entire estate to the purchaser. ’ ’ But it is in conflict with some parts of the opinion of the court in that ease.

It is said in the opinion of the court on page 550, that the wife “has a. contingent possibility of interest in the husband’s share of real estate sought to be partitioned, which may be released, but that she has no property, or actual interest in it which is the subject of grant or assignment.

The case of Mandel v. McClave, supra, certainly decides that proposition entirely differently from this opinion, as expressed above; but the court seems to recognize that when the law steps in and divests the husband of his seizin, and turns the realty into personalty, in such cases she is remitted, in lieu of her inchoate right of dower to the real estate, to her inchoate right to the distributive share of the personalty into which it has been transmitted; and the only difference between the later holdings and that holding is that her right is property having an ascertainable value, of which she herself is entitled to be the custodian, and not her husband.

For this reason, we think that the court erred in sustaining the demurrer to the answer and cross petition of the defendant, Clarissa C. Hand.

The judgment of the court of common pleas will be reversed. The case will be remanded to the probate court, with instructions to overrule said demurrer to the answer and cross-petition of the said Clarissa C. Hand, and for an order of distribution in accordance with this opinion. Exceptions may be noted.


author: SMITH, P. J.

text:
    ACTIONS — MECHANICS’ LIENS.
    [Hamilton (1st) Circuit Court,
    July 29, 1911.]
    Smith, Swing and Jones, JJ.

      H. J. Reedy Co. v. Charles L. Harrison et al.
    Action is Prematurely Brought on Contract for Work to be Delivered Free From Liens as Long as Mechanic’s Lien Is in Force.
    Am action for recovery of balance due on a contract for' the erection of certain elevators, which provides that the work shall be delivered free from all claims, liens or other charges, is prematurely brought when instituted while there is in force a mechanic’s lien in favor of a subcontractor.
    Error to common pleas court.

      Mealy, Ferris & McAvoy, for plaintiff in error.

      Stephens, Lincoln & Stephens, for defendants in error.

       Affirmed, no op., Reedy Co. v. Harrison, 88 O. S. 574.

   SMITH, P. J.

The action below was to recover a balance due for the erection and construction of certain elevators in the building situated at the southwest corner of Fourth and Elm streets, in Cincinnati, Ohio, as per a certain contract entered into between the parties hereto.

At the close of plaintiff’s evidence, the trial court dismissed the action without prejudice on the ground that the same had been prematurely brought. The contract provided, among other things, “that the work was to be delivered to the owner completely finished and free from all claims, liens and other charges with the utmost dispatch. That payments on account should be made upon the written certificate issued by the architect from time to time as the work proceeded, and that a final settlement as to the remainder, and for all extras, if any, should be had and payment made forty days after the work should have been completed, free from all liens, charges, and claims whatsoever and after the architect should have so certified in writing.”

The evidence discloses that these clauses in the contract were mot carried out on the' part of plaintiff in error, but on the contrary, a subcontractor, the Marine Engine & Maehine Company, a nonresident of Ohio, on June 4, 1910, filed a petition with the court of common pleas of this county against plaintiff in error and defendants in error, setting up a mechanic’s lien upon said property, which it claimed to hold, asking that said claim be declared a lien on.the premises and that the same be sold in satisfaction thereof.

It would seem under this state of the record that the fulfillment of this part of the contract on the part of plaintiff in error was a condition precedent to final payment or suit, and is in the contract, without doubt, for the protection of the owners. Titus w. Gunn, 69 N. J. Law 410 [55 Atl. Rep. 735]; Leverone v. Arancio, 179 Mass. 439 [61 N. E. Rep. 45].

Indeed, the application of plaintiff in error to have the Marine Engine & Machine Company made a party defendant in this case, would seem to indicate that it asserted a claim or lien, and as the work was to be delivered by the contractor free from all liens or claims, this was a requirement which the plainfiff in error had not fulfilled prior to its suit upon the contract.

We think the court, therefore, committed no error in dismissing the action without prejudice to the bringing of a new suit whenever the conditions precedent on its part to be performed had been so performed.

Judgment affirmed.

Swing and Jones, JJ., concur.


author: WINCH, J.

text:
    INFANTS — NEGLIGENCE—PLEADING—RAILROADS-
    [Cuyahoga (8th) Circuit Court,
    March 20, 1911.]
    Marvin, Winch and Henry, JJ.

      New York, C. & St. L. Ry. v. Paul Gulla.
    1. Infant Over Fourteen Years Presumed Sui Juris but Responsibility for Negligence is One of Fact.
    An infant over fourteen years of age is presumed to be suf juris in the sense that he is chargeable with negligence, but; the measure of his responsibility in that regard is a question, for the jury.
    2. Allegation that Railroad Company Negligently Started Car White Plaintiff was Leaving it at Conductor’s Order Sufficient.
    A petition is sufficient which alleges that the defendant negligently started a car while the plaintiff was in the act of leaving: it upon the order of the defendant’s conductor, although it fails to allege specifically that the car was started with tha knowledge of any of the train crew that the plaintiff .was in a place of danger, if the situation of the plaintiff on the car and. his surroundings at the time it was started are stated, and from such statement it is apparent that the defendant either knew or ought to have known that the plaintiff was in a placa of danger at the time the car was started.
    [Syllabus by the court.]
    Error to common pleas court.

      J. H. Clarké and Hitchcock, Morgan■ & Fackler, for plaintiff in error.

      Wing, Myler & Turney, for defendant in error.

      Affirmed, no op., New York, C. & St. L. Ry. v. Gulla, 86 O. S. 341.

   WINCH, J.

Gulla, a minor, seventeen years of age, was working with others for the Goff-Kirby Coal Co., unloading a coal car standing on a switch connected with the railroad company’s road-Before the car was completely unloaded, the railroad company-backed an engine in upon the switch, and coupled the tender* thereof to said coal car preparatory to moving it. The conductor of the train ordered the men on the car to leave it; on& man got out, and Gulla started to get out, had his feet on a. step and his hands holding a handle bar on the outside of the car, when the conductor gave a signal, the engineer started his engine and the train started, carrying Gulla thirty-five or forty feet, where he was struck by a post or bin very close to the track and knocked down and injured. For his injury thus received, he recovered a judgment, which it is here sought to review.

It is first claimed that no employee of the railroad company could have any authority to order an employee of the coal company out of the car, and that the employee of the coal company was not bound to obey any such order.

Whether this is so or not, we think is immaterial. We agree with counsel for the railroad company that: “As a matter of law * * * it does not seem to us to be of any consequence whether such an order as was alleged was given or not.” But as the case did not turn upon this order, we pass the point by without further observation.

Second, objection is made to the court’s charging repeatedly that in actions by children or infants, their conduct should not be judged by the same rule which governs that of adults, but that they are required to exercise only such care and prudence as “children of the same age” are accustomed to exercise under similar circumstances, and the repeated reference to the plaintiff as a child, when he was a man, doing a man’s work and earning a man’s wages.

In the eyes of the law, the plaintiff, seventeen years old, was an “infant.” Doubtless it would have been better had the court used the term “minor” or “youth.” The trial judge seems to have followed the syllabus of the case of Cleveland Roll. Mill Co. v. Corrigan, 46 Ohio St. 283 [20 N. E. Rep. 466; 3 L. R. A. 385; 15 Am. St. Rep. 596], which reads:

“In the application of the doctrine of contributory negligence to children, in actions by them, or in their behalf, for injuries occasioned by the negligence of others, their conduct should not be judged by the same rule which governs that of adults; and while it is their duty to exercise ordinary care to avoid the injuries of which they complain, ordinary care for them is that degree of care which children of the same age, of ordinary care and prudence, are accustomed to exercise under similar circumstances. ’ ’

Corrigan, however, was an infant under the age of fourteen years.

Counsel for plaintiff in error claims that there is a clear implication from the case of L. E. & W. Ry. v. Mackey, 53 Ohio St. 370 [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. 640], an infant nine years old, that a minor over fourteen years of age is sui juris and must be charged with contributory negligence the same as an adult.

We do not so understand that ease. It has frequently been considered as authority to the effect that an infant under seven years of age is conclusively presumed incapable of contributory negligence, but between seven and fourteen, only prima facie so. Nothing is said as to the years from fourteen to twenty-one, except that Thompson, Negligence is quoted to the effect that: “When the age of the child admits of no doubt as to its capacity to avoid dangers, the court will decide this question as a matter of law”; and the court also says: “Unless, therefore, it can be held as matter of law, that the injured person had the capacity to foresee and avoid danger, negligence will not be imputed to him. ”

The next case involving a minor was in Cincinnati St. Ry. v. Wright, 54 Ohio St. 181 [43 N. E. Rep. 688; 32 L. R. A. 340], a minor “fourteen years old and upwards.” Here the court, on page 192, cite the Corrigan case and say: “The intestate in the absence of proof that he was especially intelligent, was bound to no higher care respecting his personal safety than other boys of his age were accustomed to exercise under similar circumstances.”

We thinV the correct rule is well expressed by Wilson, J., in the case of Columbus Ry. v. Connor, 27 O. C. C. 229 (6 N. S. 361) : “An infant over fourteen years of age is presumed to be sui juris in the sense that he is chargeable with negligence, but the measure of his capacity in that regard is a question for the jury.”

Whether, in this ease, the court should have decided, as a matter of law, that the plaintiff had the capacity .of a man to avoid danger, we do not know; the trial judge saw him, and though the record shows that he was “doing a man’s work and earning a man’s wages,” at manual labor, that is not conclusive as to his mental capacity.

As said by Judge Bradbury in the case of Cincinnati St. Ry. v. Wright, supra: “There is no presumption that a boy who goes out to work for wages can discern danger more readily than one who does not. He may have been sent out to earn wages for the very reason that he was dull at his boobs, or from his own necessities or those of his parents. The subject is purely speculative. Doubtless certain occupations tend to quicken the perceptions and ripen the judgment. Whether any particular occupation has accomplished this end for a boy in any case is a question of fact for the determination of the jury, and not one of law to be decided by the court. ’ ’

Third, it is claimed that under the evidence a verdict should have been directed for the defendant because it was shown 'that the plaintiff, had a clear and unobstructed view of the post or bin which struck him, for thirty-five or forty feet along-the track, while he was alighting from the car, and there was nothing to prevent his dropping off before he reached the bin.

This statement of his physical surroundings may be correct, but when we consider that Gulla, as he stood on the step with his hands on the handle bar had his face toward the car, was required to look downward for his next step, we think he may be excused from looking to the left for the obstacle which struck him.

Fourth, it is claimed that there is no allegation in the second amended petition that the car was started with the knowledge of any of the trainmen that the plaintiff was in a place of danger.

Said petition sets forth the situation of Gulla on the car and gives his surroundings, then alleges that the defendant negligently started the car while the plaintiff was in the act of leaving it.

This, we think, was sufficient.

The case of L. E. & W. Ry. v. Mackey, supra, cited by counsel for plaintiff in error, at page 382, reads:

“The general rule is that allegations which adequately state the facts of negligence are sufficient to constitute a good pleading. An allegation specifying the act, the doing of which caused the injury, and averring generally that it was negligently done, states a cause of action, although it be not apparent from the complaint how the injury resulted from the negligence alleged.”

See also Davis v. Guarnieri, 45 Ohio St. 470 [15 N. E. Rep. 350; 4 Am. St. Rep. 548], and New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130].

At any rate, the railroad company did not stand upon this objection. After the plaintiff closed, the defendant put on its engineer, who testified that he saw Gulla on the car, watched him up to the time he got over the side of the car, where he could still see him and then turned his face the other way, to look to the front as he started his engine. We think this method of trying the case waived said objection to the petition.

On the whole record we find no error and the judgment is affirmed.

Marvin and Henry, JJ., concur.


text:
    TIME.
    [Hamilton (1st) Circuit Court,
    November 23, 1912.]
    Smith, Swing and Jones, JJ.
    John Killian v. Mollie Muzio.
    Application of Rule as to Computation of Time.
    The rule found in Gen. Code 10216, providing how time shall he computed, applies to any act required by the law to be done.
    Error to common pleas court.

      C. B. Wilby, for plaintiff in error.

      Karl H. Cadwell, for defendant in error.
    The court below dismissed the petition on the ground that Gen. Code 10216 does not apply to proceedings before justices of the peace. This section reads:

      “Unless otherwise specially provided, tbe time within which an act is required by law to be done shall be computed by excluding the first day and including the last; except that the last shall be excluded if it be Sunday.”
   JONES, J.

We are of the opinion that Gen. Code 10216, is not limited in its application to any one court but it is intended to apply, as its language implies, to any act required by law to be done. Judgment reversed and cause remanded.

Smith and Swing, JJ., concur.


author: POWELL, J.

text:
    INJUNCTION — MINES AND MINING.
    [Perry (5th) Circuit Court,
    November Term, 1911.]
    Powell, Voorhees and Shields, JJ.

      Chartiers Oil Co. v. Peter Curtiss et al.
    1. Right of Ingress and Egress in Prospecting for or Removing Underlying Minerals Implied and Enforceable by Injunction.
    The estates represented by ownership of the surface and of underlying mineral rights are mutually dominant and servient, and in a conveyance of the surface there is an implied reservation of right of access to the estate below, and this right may be enforced by injunction.
    2. Machinery and Derricks for Drilling Oil Maintainable but Storage Rights are Limited.
    The owner of underlying oil and gas rights is ¡entitled to the use of the surface for ingress and egress in drilling a reasonable number of wells and may maintain thereon derricks and other necessary machinery; but storage rights will be limited to such as are incidental to the immediate production and marketing of the oil, and the question of damage to the surface from such operations will be left open for future determination.
    (.Syllabus by the court.]
    Appeal from common pleas court.

      D. N. Postlewaite, C. A. Donahue and Leo A. Weil, for pbuoiiff:

      Cited and commented upon by the following authorities:

      Williams v. Oil, 52 W. Ya. 181 [43 S. E. Rep. 214; 60 L. R. A. 795]; Gill v. Fletcher, 74 Ohio St. 302 [78 N. E. Rep. 433; 113 Am. St. Rep. 962] ; Sanxay v. Hunger, 42 Ind. 44; Ghartiers Bloch Goal Go. v. Mellon, 152 Pa. St. 286 [25 Atl. Rep. 597; 18 L. R. A. 702; 34 Am. St. Rep. 645]; Pennsylvania Goal Go. v. Sanderson, 113 Pa. St. 126 [6 Atl. Rep. 453; 57 Am. Rep. 445] ; Lillibridge v. Goal Go. 143 Pa. St. 293 [22 Atl. Rep. 1035; 13 L R. A. 627; 29 Am. St. Rep. 544] ; New York & N. E. By. v. Railroad Commissioners., 162 Mass. 81 [38 N. E. Rep. 27] ; Marvin v. Mining Go. 55 N. Y. 538, [14 Am. Rep. 322] ; Uhl v. Railway, 47 W. Ya. 59 [34 S. E. Rep. 934] ; Porter v. Manufachiring Go. 65 W. Ya. 636 [64 S. E. Rep. 853]; Jones, Easements 263; Brigham v. Smith, 70 Mass. (4 Gray) 297 [64 Am. Dec. 76] ; Pomeroy v. Salt Co. 37 Ohio St. 520; McCabe v. Fross, 18 Dec. 634 (7 N. S. 261) ; National Exch. Bank v. Cunningham, 46 Ohio St. 575 [22 N. E. Rep. 924] ; Baker v. Rice, 56 Ohio St. 463 [47 N. E. Rep. 653] ; Meredith v. Frank, 56 Ohio St. 479 [47 N. E. Rep. 656] ; Detlor v. Holland, 57 Ohio St. 492 [49 N. E. Rep. 690; 40 L. R. A. 266] ; Kelley v. Oil Go. 57 Ohio St. 317 [49 N. E. Rep. 399; 39 L. R. A. 765; 63 Am. St. Rep. 721],

      Booth, Keating, Peters ■& Pomerene, for defendants.

      Affirmed, no op., Curtiss v. Oil Co., 88 O. S. 594.

   POWELL, J.

On and prior to August 25, 1888, the Columbus & Hocking Iron and Coal Company was the owner in fee simple of a tract of land in this county, known and described as out-lot number one (1) in the village of New Straitsville, Ohio, and containing between four and five acres of land. On that date the said the Columbus & Hocking Iron and Coal Company executed its deed of conveyance to Thomas Curtiss, conveying to him the surface of said premises. The description of the property conveyed, as contained in the granting clause of said deed, is as follows:

“All of the surface except the timber on the tract of land described as follows: out-lot No. one (1) of the village of New Straitsville, Ohio, as the same is known and designated on the recorded plat of said village, recorded in the recorder’s office of Perry county, Ohio. ’ ’

Afterwards the rights of Thomas Curtiss in said lands were conveyed by him to the defendant,,Peter Curtiss, who was the' owner thereof at the commencement of this action. A few days after the petition had been filed, the defendant, N. L. C. Kachelmaeher, purchased the interest of the defendant, Peter Curtiss, in said lands and on his motion was made a party defendant to this action.

The plaintiff, Chartiers Oil Company, is the owner by proper conveyance from the Columbus & Hocking Coal and Iron Company, of the oil and gas underlying said tract, and brought this action for a mandatory injunction to compel the defendants to permit it to enter upon the surface of said out-lot No. 1 to explore for oil and gas that may exist under the surface, and to give it, the said plaintiff, the right to do whatever may be necessary to produce and market any oil and gas that may be found to underlie said lands.

It is the settled law of Ohio that different estates may exist in the same real estate. The surface may belong to one owner, and the minerals underlying it may belong to other and different owners. Burgner v. Humphrey, 41 Ohio St. 340; Gill v. Fletcher, 74 Ohio St. 295 [78 N. E. Rep. 433; 113 Am. St. Rep. 962]; 20 Am. & Eng. Enc. Law (2 ed.) 771, 773, and authorities, there cited.

The question here presented is whether or not .the owner of the surface only can be required to permit access to such surface by the owner .of a lower stratum, for the purpose of producing and marketing the minerals that may be found in such lower stratum.

There is no reservation in the deed or grant to Thomas Curtiss of any right to enter upon the surface and explore for gas. or oil, nor of access through the surface to any minerals that may lie below. In such circumstances, can the owner of the surface be compelled by a court of equity to permit the owner or owners of the underlying strata to penetrate or drill through the surface for the purpose of developing or mining the minerals, that may be found to exist in such underlying strata ?

It is settled in Ohio that the surface of lands lying above a stratum that can be mined out, is entitled to subjacent support. That is, the coal or other mineral underlying lands can not be mined out and removed without leaving sufficient support below to prevent the caving in or subsidence of the upper stratum. This right of support is a property right belonging to the surface and passes by a conveyance of such surface without an express grant to that effect. It is not an easement merely but a property right attaching to such surface, without either a grant or a reservation to that effect, and the same is a servitude on the lower estate, which can be enforced by the surface owner. This being true, does not the upper stratum or surface owe a reciprocal duty or servitude of access to the lower strata ? . The doctrine of mining rights would imply as much, and our own Supreme Court has granted similar relief to that sought in this action, where the subject of the controversy was gypsum or plaster instead of oil or gas, and where there was no reservation of a right of access except such as might be implied by a mining right. Gill v. Fletcher, supra.

But it is said mining rights are peculiar and exist by reason of necessity. What greater necessity can exist in the case of a mine, than exists in a ease like this? There is no other way known by which the oil or gas under the earth’s surface can be reached and ^produced for use or market except by drilling directly down through the earth’s surface into the oil and gas bearing stratum. It is the opinion of the court that a right of access to the lower strata of the earth’s crust'is a property right attaching to such strata and passes by a conveyance of the same without an express grant to that effect, and is reserved by implication in a conveyance of the upper strata without an express reservation to that effect. It is not an easement merely but a property right in the estate itself, and is a reciprocal servitude to the right of support that attaches to the surface. It is analogous in principle to the way by necessity on the earth’s surface, and to the doctrine of mining rights above referred to. In fact oil and gas in place are held to be mineral, so that mining rights might well attach to them for the benefit of the owner of the same. These rights of necessity are, however, subject to such various modifications as may be necessary for the complete enjoyment of the different estates conveyed. The law implies a single way of necessity upon the earth’s surface, where such necessity- exists, yet a right of access to underlying minerals-would only be restricted in number to so many as would be necessary for a reasonable development of the territory where such right of access exists; The rule of necessity for a reasonable development of the oil and gas territory is the rule that-would prevail.

‘ ‘ The owner of the surface can not bore where he pleases or-as often as he pleases. The right of designating the reasonable-location of the one right of way by necessity, which the law recognizes, has always been held to be in the owner of the land. If he refuses to designate such way, then the owner of the right of way can designate it, or can apply to.the court to have it located.” Chartiers Block Coal Co. v. Mellon, 152 Pa. St. 286 [25 Atl. Rep. 597; 18 L. R. A. 702; 34 Am. St. Rep. 645].

The language quoted applies with equal force to the owner-of a lower stratum who has a right of access through the surface, with the additional right to have more than one way designated by the court where the same may be necessary for the reasonable-development and production of the mineral owned.

These views are supported by numerous authorities, a few of which are the following: Chartiers Block Coal Co. v. Mellon, supra; Marvin v. Brewster Iron Min. Co. 55 N. Y. 538 [14 Am. Rep. 322]; Henry v. Lowe, 73 Mo. 96; Williams v. Gibson, 84 Ala. 228 [4 So. Rep. 350; 5 Am. St. Rep. 368]; Gill v. Fletcher, supra; Kelley v. Oil Co. 57 Ohio St. 317 [49 N. E. Rep. 399; 39 L. R. A. 765; 63 Am. St. Rep. 721].

The deed to Thomas Curtiss conveying to him the surface of out-lot No. one (1), conveyed to him only so much of said land as could be used for agricultural or residential purposes. Murray v. Allred, 100 Tenn. 100 [43 S. W. Rep. 355; 39 L. R. A. 249; 66 Am. St. Rep. 740]; Stewart v. Chadwick, 8 Iowa 463; 27 Cyc. 540; Lillibridge v. Coal Co. 143 Pa. 293 [22 Atl. Rep. 1035; 13 L. R. A. 627; 24 Am. St. Rep. 544]; Williams v. Oil Co. 52 W. Va. 181 [43 S. E. Rep. 214; 60 L. R. A. 795]; Knight v. Coal & Iron Co. 47 Ind. 105 [17 Am. Rep. 692].

This conveyance was a severance of the title to said lands, tne grantee, Thomas t Curtiss, -obtaining title to the surface or upper stratum, while the grantor, the Columbus & Hocking Coal and Iron Company, retained all the right, title and ownership of the residue of said tract, and being all of the underlying strata of the same. By other conveyances the plaintiff became and now is the owner of the underlying oil and gas. These various estates are mutually dominant and servient. The conveyance of the surface to Curtiss reserved to the grantor a right of access to the estate below by an implied reservation. A servitude of access to the lower estate passed with such grant. The conveyance by which plaintiff derived title to the oil and gas carried with it by an implied grant, if not in express terms, a right of access to such oil and gas.

A servitude having been established to the lower estate, can the same be' enforced by a mandatory injunction, as is sought to be done in this action? The Supreme Court has in several instances recognized the right and authority to enforce and regulate servitudes growing out of mining rights, to which the rights sought to be enforced in this action are analogous. Pomeroy v. Salt Co. 37 Ohio St. 520; Gill v. Fletcher, supra.

It was said by Justice Williams of the Pennsylvania Supreme Court in a minority opinion, in a case involving practically the same question sought to be determined in this action:

“We do not hesitate to enforce the servitude for support, whether subjacent or adjacent, or to regulate the extent and manner in which it shall be rendered and enjoyed. With equal-propriety and with equal ease we may enforce the servitude for access and regulate the extent and manner in which it shall be rendered and enjoyed. The power of the chancellor would extend to all incidental subjects and enable him to impose terms as to the manner in which the owner of the lower estate should exercise his right of access, the precautions he should employ, and the compensation he should make for actual injury done.” Chartiers Block Coal Co. v. Mellon, supra.

This seems to us to be a correct statement of the principle that is decisive of the question to be determined in this action. It follows that the plaintiff has the right to drill for oil and gas upon the lands of the defendants described in the petition, together with such right of ingress and egress upon the surface of said lands as may be necessary for that purpose, and that the court has power to enforce such right in the manner sought to be done in this action. It would also have the right to a reasonable use of the surface on which to place derricks and other necessary machinery for drilling its wells. It ought not, however, have a right of storage upon this tract, other than as may be incidental to the immediate production and marketing of oil, as it has other adjacent lands on which such right of storage exists. It ought also to be limited in the number of wells it should be allowed to drill on said lands. The evidence discloses that two wells are now being drilled in on the same, and it ought to be permitted to complete these wells, and if it should be necessary for the more complete development of said territory, it should have the right to drill still another well on said tract, but not nearer than 400 feet from the north or west boundary lines of the same. The injunction allowed in the court of common pleas was properly allowed, and the motion to dissolve the same will be overruled, and such injunction will be continued in force subject to such modifications as we have indicated in this opinion. The question of damages to the surface will be left open for future determination or settlement. We think, however, that the plaintiff should pay the costs of this proceeding.

A decree may be drawn and entered in conformity with the views expressed in this opinion. *

Voorhees and Shields, JJ., concur.


text:
    PARTIES — WILLS.
    [Hamilton (1st) Circuit Court,
    June 29, 1912.]
    Smith, Swing and Jones, JJ.

      Elizabeth Zinn v. Aaron A. Ferris, Exr. et al.
    Capacity to Maintain Action to Contest Will Determinable Before Issues of Validity of Wili.
    The right to maintain an action to contest a will under Gen. Code 12082, being raised, must he determined by the court before proceeding to submit to the jury the issues as to the validity of the will.
    Error to common pleas court.

      Eealy, Ferris & McAvoy, for plaintiff in error.

      Rufus B. Smith and Chas. B. Wilby, for defendant in error.

       Affirmed, no op., Zinn v. Ferris, 88 O. S. 555.

   SMITH, P. J.

In the court of common pleas of this county, plaintiff in error filed his petition to contest the will of Elizabeth Zinn, this action being brought in conformity with Gen. Code 12082.

Aaron A. Ferris, executor and trustee under said will, filed a motion for an order of abatement and dismissal of the action, setting up by affidavit certain facts denying the right of plaintiff in error to maintain a contest of the will. The facts stated therein were not denied and upon hearing the trial court granted the motion and- dismissed the petition.

It is urged that in this respect the court committed error, for the reason that under our statute it was the duty of the court when the petition to contest the will was filed to have had an issue made up either by pleadings or an order on the journal as to whether or not the writing produced was the last will of the testator, and that this issue should have been tried by a jury, and that the only adjudication of such a question was to be determined solely by a verdict of a jury so returned.

While this no doubt is correct, yet it seems to us that if a question is made as to the right of the plaintiff to maintain the action, it is not only proper but it is the duty of the court to determine this preliminary question before submitting to the jury the general question as to the validity of the will.

It is evident from the facts stated in the motion and the' affidavit filed by the executor to dismiss the proceedings, if true' (and we must assume that they are, for there is no denial), plaintiff in error has no standing or right to maintain his action, as well as under item 14 of the will.

We do not think that the defendant in error is driven tO' setting up in an answer to tbe petition the facts stated in his. affidavit as any defense to the action.

The right to maintain the action can and should be determined first and if this right is determined adversely to the plaintiff, then there is nothing to submit to the jury. If, on the other hand, it is determined in his favor, then the court will proceed in accordance with the statute and submit the issue as. to the validity of the will to the jury.

We are of the opinion that the action of the court below was. correct and the judgment is affirmed.

Swing and Jones, JJ., concur.


text:
    BAKERIES — HEALTH.
    [Hamilton (1st) Circuit Court,
    July 20, 1912.]
    Smith, Swing and Jones, JJ.

      Joseph Bernhardt v. Edward Wise.
    Habeas Corpus Does not Lie to Discharge One Arrested for Maintaining Bakery in Cellar.
    The exception of act 92 O. L. 393, excepting bakeries then used in cellars and basements, should be read into Gen. Code 1012, as to bakeries then located in cellars and basements; hence, one arrested for maintaining a bakery in such basement has a complete defense, habeas corpus will not lie, to effect his. release.
    Error to common pleas court.

      Rowel Crosley and John C. Rogers, for plaintiff in error.

      John A. Deasy, for defendant in error.

      Affirming, Bernhardt v Wise, 23 Dec. 230.

   SMITH, P. J.

We are of the opinion that provisions of the law passed in 1896 (92 O. L. 393), which excepted from its provisions bakeries, then used in basements and cellars, should be read with the provisions of Gen. Code 1012.

If we are correct in this, and we limit our judgment to this, the justice of the peace had jurisdiction to issue his warrant and cause the arrest of the plaintiff, and habeas corpus is not the remedy in which plaintiff can try his right, for he has a complete defense, which alone can be shown on the trial, that he does not come under the provisions of the law. Habeas corpus is available only where the court has no jurisdiction to cause the arrest and detention, and is not the form of action in which to try the guilt or innocence of the party.

In this view of the matter the court below did right in dismissing plaintiff’s petition and said judgment should be affirmed.

Swing and Jones, JJ., concur.


author: DUSTIN, J.

text:
    SALARY AND LOAN BROKERS.
    [Franklin (2nd) Circuit Court,
    October 8, 1912.]
    Dustin, Allread and Ferneding, JJ.

      F. F. Cain v. Peoples Salary Loan Co. Homer H. Sharp v. State of Ohio.
    1. Requirement That Brokers Dealing in Chattel Loans and Assignment of Wages be Licensed Held Constitutional.
    The exception in favor of banks and building associations, found in act 102 O. L. 469 (Gen. Code 6346-1 et seq.), licensing money lenders, does not violate the equality provision of either the-federal or the state constitution, nor does it disregard the requirement of the state constitution that laws of a general nature shall be of uniform operation throughout the state.

      ,2. Provision Requiring Wife's Signature to Husband’s Assignment of Wages Constitutional.
    The provision of Gen. Code 4364-4, requiring an assignment of salary by one who is married to be signed by the husband and wife making the application for such assignment, is not a violation of the right of separate contract, inasmuch as it is within the police power of the state to protect families from the improvidence of one member.
    Error to common pleas court.

      E. C. Morton, Q. B. Lane and Gumble & Gumble, for plaintiffs in error.

      Timothy S. Hogan, Atty. Gen., Geo. B. Ohey, H. B. Jones and B. W. Gearhardt, for defendants in error.

      Affirmed, no op., Cain v. Loan Co. 88 O. S. 550.

   DUSTIN, J.

These cases- were brought to test the constitutionality of an ■act entitled, “An act to regulate and license the loaning of money upon chattels or personal property of any kind, and the purchasing or making of loans upon salaries or wage earnings, ’ ’ being Gen. Code 6346-1, et seq.

Section 1 of the act provides that “No person, firm or •corporation, except banks and building and loan associations shall engage or continue in the business of making loans -upon chattels,” etc., without first having obtained a license so to do fromAhe secretary of state.

But no applicant is entitled to a license until he has given a bond in the sum of $2,000, which shall be available to any aggrieved person who shall procure a judgment against the lender .and fail to collect same on execution. Further, a license fee is to be paid, certain records kept, copies of contracts given to borrowers, a limitation placed on the total fees and interest to be charged, a restriction against a married person assigning wages or a salary for security without the written consent of "husband or wife, and a provision made for fines for violation of the provisions of the act, and, on second conviction, a revocation of the license.

It is contended that the exception in favor of banks and building associations violates the equality provisions of the federal and state constitutions,- and the requirement of the state constitution that laws of a general nature shall be of uniform operation throughout the state; also that the provision requiring the signature of wife or husband to an assignment of his or her salary as security is a violation of the right of contract.

At first blush there, would seem to be much force in the first-contention, and that the discrimination between banks and building and loan associations on the one hand and all other persons,, partnerships and corporations on the other is fatal. But reflection upon the reasons for the law and the legislative knowledge upon which it was based places the matter in a different: light.

The extortion practiced by a class of money lenders is a matter of common knowledge. And to prevent and punish suchi practices was the evident purpose of the enactment.

Now, it is just as notorious that banks and building associations, when making such loans, do so upon a reasonable interest,, and without charges for alleged services, or other subterfuges,, to increase the interest; and there are no complaints of their unlawful practices.

Furthermore, banks and building associations are under-government and state control, are subject to inspection, and must make reports from time to time. ■

On the other hand, the lenders on chattels and salaries are; often uncertain as to responsibility, residence, and management,, and of their practices there are frequent complaints.

It has been held in several states, and by the United States'. Supreme Court, that such conditions and distinctions may be; recognized by the legislature, without violating the equality-provisions of the constitution, and it may make a law applicable only where needed, the only requirement being that there-should be no unreasonable or arbitrary classification.

It has been already held in Ohio that:

‘ ‘ The state may, in the exercise of" the police power, license and regulate chattel mortgage and salary loan brokers.” Sanning v. Cincinnati, 81 Ohio St. 142 [90 N. E. Rep. 125; 25 L. R. A. (N. S.) 686].

We think it may, in the just and reasonable exercise of that power, exclude a class of lenders who are already under state- and federal supervision and who habitually observe the proprieties of conduct.

In the state of Delaware a similar law, with similar exceptions, was under consideration by the. Supreme Court in the case of State v. Wickenhoefer, 6 Pen. (Del.) 120 [64 Atl. Rep. 273]. The court, in its opinion, said:

‘ ‘ The legislature were the judges of the existence of such a condition, and, acting upon the belief that it did exist, had the power to enact such legislation as would be necessary to regulate the business, provided it did not make any arbitrary or unreasonable classification of the persons affected. * * ' *
“It unquestionably had the right to determine where and by whom the injurious business was engaged in, and confine the ■operation of the law to such place and such persons, provided the act affected all of such persons alike and did not make any .arbitrary and unreasonable classification of them.”

A law of Wyoming, which was applicable only to loans of less than $200, was not thereby unconstitutional, since it recognized the fact that the abuses which the act was intended to correct were confined to small loans.

Parties who were able to borrow larger sums usually gave other security- than household chattels and were able to protect "themselves.

See, also, State v. Hurlburt, 82 Conn. 232 [72 Atl. Rep. 1079]; Mutual Loan Co. v. Martell, 200 Mass. 482 [86 N. E. Rep. 916; 128 Am. St. Rep. 446].

In the latter ease the court said:

‘ ‘ The legislature might decide that the dangers that the statute was intended to prevent would not exist in any considerable -degree from the business of national banks or other companies and institutions under the supervision of the bank commission, ’ ’ and “may be supposed to be aware of business done or likely to be done by these corporations, and they may have believed rightly that the business done by them would not need regulation in the interest of employer and employes.”

Other citations, quite in point, are given by Judge Rathmell in his decision of this case in the common pleas court, Cain v. Loan Co. 22 Dec. 377 (12 N. S. 441).

As to the ground urged against the law" that the provision requiring an assignment of salary to be signed by the husband or wife is a violation of the right of separate contract, we think it is fully within the police power of the state to thus protect families from the improvidence of one member, as in the enactment of homestead and similar laws.

The judgment of the common pleas court in each case will be affirmed.

Allread and Ferneding, JJ., concur.


text:
    INTEREST — PARTNERSHIP.
    [Hamilton (1st) Circuit Court,
    July 29, 1911.]
    Smith, Swing and Jones, JJ.

      James E. Mooney, Tr. v. C. W. Nagel, Assignee, et al.
    ¡Member of a Land Syndicate Rendering Services.in Lieu of Money Advanced is Partner and After Payment of Money so Advanced is Entitled to his Share in Proceeds Without Interest;
    An agreement to form a syndicate for the purchase and sale of real estate, in which all but one of the stockholders was to pay for the purchase of his own share and also his proportional part of money to be advanced to such one, a sort of managing agent, for his share, to whom no part of any of the proceeds of the sales of said real estate should be paid “until the sums advanced for the purchase thereof together with all interest and other costs shall first have been repaid,” fixes his status as a partner; having performed all the conditions by him to be performed, such partner is entitled to receive his share of the proceeds of the enterprise after payment to the stockholders of the amounts advanced by them without interest.
    Appeal from common pleas.

      Affirming, Mooney v. Nagel, 20 Dec. 323.

   SMITH, P. J.

The court is of the opinion in the above case that the appeal of James É. Mooney, trustee, brings before this court the whole case from the court of common pleas and that the ease stands for trial here as it did originally in the court below. This being so upon the claim between the plaintiff and the defendant, Wallace Burch, the court is called upon to construe the following contracts:

“We, James E. Mooney, T. B. Youtsey, A. S. Berry, Charles H. Kilgour, John Kilgour, John Zumstein and Wallace: Burch, severally agree to and with each other, each in consideration of the agreements of the other, as follows:
“1. To form a syndicate to purchase such real estate asi may be determined upon by two-thirds of shareholders herein.
“2. The number of shares shall be limited to six, five-whole shares and two one-half shares, distributed as follows: to-James E. Mooney, one share; to T. B. Youtsey, one share; to A. S. Berry, one share; to Charles H. Kilgour, one share; to John. Kilgour, one share; to John Zumstein, one-half share; to Wallace-Burch, one-half share.
“3. The shareholders other than Wallace Burch shall each pay their proportional part of the money to be advanced for-said one-half share held by him. The said Wallace Burch shall, not be paid any of the proceeds of the sale of said real estate until the sums advanced for the purchase thereof, together with, all interest and other costs shall first have been repaid to the said shareholders, advancing the same out of the sales of the lands, purchased under this agreement. The said Wallace Burch, in consideration of the profits in said one-twelfth interest, is to devote such time and attention as may be necessary to purchase the-real estate hereunder; and by the direction of the officers of said syndicate, is to attend generally to all matters that may be.necessary to carry out this agreement.
“4. The title of all real estate purchased shall be conveyed to James E. Mooney, trustee, who shall hold the same in trust for the shareholders hereof in accordance with this agreement, and make such disposition of the same as he may be directed from time to time by two-thirds of the said shareholders herein. Said trustee shall receive one ($1.00) dollar for his services.
“5. The said shareholders shall elect from their number, the president, treasurer and such other officers, as they may deem necessary. The compensation of said officers, for each shall be-one ($1.00) dollar per year.
“6. Promptly upon being notified so to do, each shareholder shall pay to the treasurer his proportional share of such sums of money as may be required to make the purchases of the real estate as aforesaid.
“7. It is agreed that, the death of any of the shareholders: herein, shall not determine this agreement; and each of the said shareholders agfee that in the event of his death, prior to the-termination of this agreement, his said share shall pass to his. executors or other legal representatives, who shall carry out in. his stead the purpose of this agreement to all intents and purposes the same as if he had not deceased.'
“8. This agreement to date from June 30, 1887, and to. cover the purchases of all real estate made since said date.
“James E. Mooney,
“T. B. Youtsey,
“A. S. Berry,
“Charles H. Kilgour,
“John Kilgour,
“John Zumstein,
“"Wallace Burch.”

The evidence clearly shows, and indeed it is not disputed,, that the defendant, Wallace Burch, performed all the conditions; of the above contract on his part to be performed and rendered, all services required of him thereunder, and that for his services, for which he was given a one-half share in the syndicate, he has. received nothing.

The trustee claims that Wallace Burch was not a partner-with the other shareholders under the contract, and that the said Burch was not to receive anything from the sale of the real estate until the sums advanced by the parties thereto should be repaid to those advancing the money for the same with interest thereon.

As to the first contention, the court is of the opinion that the defendant Burch is a partner with the other shareholders in the syndicate; while the contract relates back to 1887, it was executed in 1889, before which time the defendant Burch was not-a member of the syndicate, but had performed labor in relation thereto for which he had not been paid. He is mentioned and carried through the entire agreement; being given a one-half share, and in consideration of the profits in said one-half share he is to devote such time and attention as may be necessary to purchase the real estate, and is to attend generally tot all matters that may be necessary to carry out the agreement. He also had a vote in the election of the officers in said syndicate and seems in nowise to have differed from the other members except in the manner in which his one-twelfth share was to be paid for, to wit, by services, which in this case was equivalent to money. We think, therefore, that he was in all respects a full partner under the terms of the agreement with the other members of the syndicate.

As to the second claim of plaintiff, the court is of the opinion that the plaintiff and the remaining shareholders, other than Burch, are not -entitled to receive the sums advanced by them with interest thereon before Burch shall receive any of the proceeds of the sale of said real estate.

The agreement does not so declare. Before he is to be paid any of the proceeds of the sale of said real estate, the sum advanced for the purchase thereof, together with all interest and other costs, shall first be repaid to the shareholders advancing the same. Nothing can be repaid unless it has been theretofore paid out. Interest on the sums advanced would not be a payment by the shareholders which could be repaid to them, but would be a charge upon such sums; besides, the phrase “together with all interest and other costs” would seem to indicate that the “interest” here referred to was an expense to which the shareholders might be put as a part of the expense or cost in purchasing, organizing and maintaining the syndicate. What is to be repaid to the shareholders before Burch is to receive any of the proceeds of sale is such monies as have been advanced; but interest charged against the syndicate upon such sums would not be money advanced. It seems therefore clear, that the “interest” referred to in the agreement means such interest as might be paid by the shareholders that was necessary to place the real estate in proper shape upon the market, whether on deferred payments, loans, discounts, etc.

The court is of the opinion, therefore, that the prayer of the cross petition of Wallace Burch should be granted and a decree may be taken similar to that in the court below.

Swing and Jones, JJ.,


text:
    RAILWAYS — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    July 27, 1912.]
    Smith, Swing and Jones, JJ.
    Cincinnati, H. & D. Ry. v. Isabella Woulfe, Admrx.
    Presumption That Switch was Thrown Pursuant to Dispatcher’s .Order Eliminates Relation of Fellow Servants Between Switch Tender and Deceased Engineer Killed in Collision.
    Upon trial of an action for wrongful death of a locomotive engineer, it will he presumed, in the absence of evidence to the contrary, that throwing a switch by reason of which trains came into collision, was in obedience to orders to the switch tender from someone superior in authority to the engineer, and the question whether the engineer and switch tender were fellow servants is immaterial.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Waite & Schindel, for plaintiff in error.

      Powell & Smiley, for defendant in error.
    Isabella Woulfe, administratrix, recovered a verdict of $8,000 for the death of her intestate, Thomas H. White, who was killed in a collision while engaged as an engineer on the defendant railway.
   JONES, J.

We find no error in the proceedings below prejudicial to plaintiff in error.

The question as to whether decedent, White, and the switch-tender were fellow servants was properly left to the jury and the jury correctly decided they were not fellow servants. It is presumed in the absence of evidence to the contrary that the switch was thrown in pursuance to orders from someone in authority and someone who was superior to the engineer and whose orders those in charge of the train were bound to obey.

In this view it is not material what the relation was between decedent and the switch-tender as the latter was the instrument only through which the orders of the dispatcher were carried into execution. To hold otherwise would mean that 'those in charge of the southbound train in this case, or any train, could not move the train unless orders to that effect were received by actual and direct communication with the dispatcher. This is the position the argument of plaintiff in error leads to and needs only to be stated to show its fallacy.

This point disposed of we feel that there is nothing more in the case. White was free from negligence and the company is liable in damages. Under proper instructions from the court the jury fixed the damage at an amount which to it seemed just and which we can not say is excessive.

Judgment affirmed.

Smith and Swing, JJ., concur.