author: JONES, (O. B.), J.

text:
    PARITES — PRINCIPAL AND SURETY — TRUSTS AND TRUSTEES
    [Hamilton (1st) Court of Appeals,
    March 22, 1915.]
    Swing, Jones and Jones, JJ.

      American Bonding Co. v. Second Nat. Bank of Cincinnati et al.
    1. Promiscuous Use of Incorrect Appellations of Party not Mistaken identity.
    The promiscuous use in the papers in the case and on the docket of the court of the names American Bonding Co. and American Bonding & Trust Co. as that of the plaintiff in the case, does not indicate uncertainty as to the identity of the party or that the court was not properly advised with reference thereto, when the correct name was used in the judgment and the motion for a new trial without objection on the part of the defendant.
    2. Purchase of Highest Form of Investment by Trustee, Confirmed by Court Held Regular.
    When a trustee purchases with funds in his hands bonds constituting the highest form of investment known to the law, and the investment is reported to the court in his account which is confirmed in due course, such confirmation operates as an approval of the investment as fully as though a prior formal order had been made.
    3. Bank Purchasing Bonds from Trustee1 Charged with Knowledge of Trust.
    There is no presumption in law of authority on the part of a trustee to sell bonds held by him in trust, and those purchasing from him without a showing of authority to sell will be charged with knowledge that he was probably violating his trust; hence, a bank making such a purchase with knowledge that the bonds were held in trust will be held liable for the loss resulting from conversion of the proceeds, notwithstanding it paid full value for the bonds and was in no way in collusion with the trustee in his breach of trust.
    4. Payment of Surety of Trustee for Conversion of Bonds no Abatement of Action Against Bank Purchasing Bonds.
    The successor in the trust having brought an action against the bank for the loss thus sustained, payment of the loss by the surety during the pendency of the suit does not abate the action but it continues in favor of the surety by subrogation, and the substitution of the surety as the party plaintiff when made relates back to the commencement of the action, which in the present case saves the claim of the surety from the bar of the statute.
    Error.

      Healy, Ferns <& McAvoy, for plaintiff in error.

      Jelke, Clark & ForcKheimer, for defendants in error.

      Reversing Healy v. Second National Bank, 22 Dec. 502.

   JONES, (O. B.), J.

The first question to be determined in this case arises upon the motion to dismiss the petition in error. It is contended that the American Bonding Co. of Baltimore, plaintiff in error, is a stranger to the case below and therefore has no power to file a petition in error in this case. The original plaintiff in the case below was John C. Healy, trustee, and he continued such party plaintiff until February 13,1909, when an order was made upon the application of the American Bonding & Trust Co. of Baltimore, Maryland, substituting it as plaintiff in place and stead of John C. Healy, trustee, and ordering the cause to proceed thereafter in its name as plaintiff. No new petition was filed by the American Bonding & Trust Co. as such substituted plaintiff, but an amended answer was filed after such substitution, February 23, 1909, by the defendant, the Second National Bank, in which answer no objection was made to the name of the company being substituted as plaintiff. A reply to this answer was filed in the name of the American Bonding & Trust Co., which was verified by John C. Healy as attorney.

The transcript of the appearance docket below shows in a number of instances steps taken by the substituted plaintiff under its then true name of the American Bonding Co. instead of under the named used in the entry of substitution, to wit, the American Bonding & Trust Co., and both the final judgment entry and the motion for new trial are in the name of American Bonding Co. If these two names indicate two separate companies, then no final judgment appears on the record as to the American Bonding & Trust Co. The judgment entry against the original plaintiff and the motion for new trial by the original plaintiff after substitution were both unnecessary and need not be considered, if the substituted party appears both in the entry and in the motion, is to be used. In other words, where substitution is made because of a transfer of interest pending the suit, it is not necessary or proper that the original party be nrmt.iTmp.rl in conjunction with the substituted party, who takes his place entirely.

Plaintiff in error offered in evidence in this court a printed certified copy of charter and amendments of the American Bonding Co. of Baltimore, from which it appears that by special act of the general assembly of Maryland, dated April 8, 1902, the charter of the American Bonding & Trust Co. of Baltimore City was amended so that the name of said body corporate was changed from the American Bonding & Trust Co. of Baltimore City to the American Bonding Co. of Baltimore, and that this change was accepted by the stockholders of said company under date of July 31, 1902.

From the evidence, therefore, the court finds that there is no question as to the identity of the substituted plaintiff below against whom under its changed name judgment was entered. A mistake was made because of the evident lack of information by the attorney at that time as to the changed name of said company, said company having become surety for the original trustee on his bond under the name of the American Bonding & Trust Co. and its name having been changed prior to the entry of substitution to the American Bonding Co. of Baltimore, which name should have been used in the substitution. The promiscuous use of these two names in the appearance docket and the use’of the correct name in the judgment entry and in the motion for new trial without objection at the time from the defendant indicates that, while no formal correction of the name as written in the entry of substitution was made, the court was properly advised and there was no question at any time as to the identity of the party.

Great liberality is shown under our code of practice in regard to correction of such mistakes. Section 11363 G. C., formerly See. 137 of the civil code, authorizes the correction of a mistake in the name of a party either before or after judgment, in furtherance of justice.

In State v. Telephone Co., 36 Ohio St. 296 [38 Am. Rep. 583], it was held:

“Where a corporation whose name is composed of several words is sued by a name in which a word in the corporate name is omitted, such omission or misnomer unless pleaded in abatement will be disregarded by the court.”

And in Doty v. Rigour, 9 Ohio St. 527, it is held:

“Amendments of the record may be made after proceedings in error commenced at any time while diminution may be suggested in the supervising court and certiorari awarded. ’ ’

The question and effect of misnomer and the power of the court to correct mistakes of that character are fully discussed in Boehmke v. Traction Co., 88 Ohio St. 156 [102 N. E. 700].

The motion to dismiss the petition in error must therefore be denied.

This action was brought by John C. Healy, to recover the proceeds of two United States registered bonds of $1,000 each, which were held in trust by Charles Santmyer and were sold by him in violation of his trust to the Second National Bank. Mr. Healy had been appointed by the probate court as trustee of James Robinson, under the terms of the will of his grandfather, John Robinson, to succeed said Santmyer, who had been removed by the court. The American Bonding & Trust Company was surety on the bond of Santmyer as such trustee.

From a careful examination of the evidence it is found by the court that Santmyer sold these two bonds to the Second National Bank about September 18, 1899, for the sum of $2,222.50, and that the purchase money for same was deposited in his individual account in that bank. It is contended by the bank that it did not purchase the bonds itself, but that they were sold by it for Santmyer to another of their customers, Hohnstedt. The books of the bank, however, show the purchase and sale, of such bonds by the bank itself. The bond daybook shows that such bonds were bought September 18, 1899, at a premium of $222.50, and sold September 28, 1899, at a premium of $280, showing a profit of $57.50 made by the bank. This evidence is -taken in connection with the testimony of Hohnstedt, who says that he did not know Santmyer; had no dealings with him; that his purchase of these two bonds was in connection with other United States bonds and municipal securities and they were bought from the bank itself by him. The actual transfer shown on the books of the United States Treasury, as executed by Santmyer, was dated October 2, 1899, and the new bonds were issued to Hohnstedt October 5, 1899. This transaction was based upon a letter written by William Albert on that day, as cashier of the defendant bank, who conducted the purchase and sale of said bonds on behalf of the bank. The discrepancy in these dates can not be considered material, because Mr. Albert did not send the bonds for transfer until he had arranged for their sale to Hohnstedt, and they never were actually transferred to the name of the bank. The regulations of the United States Treasury required that the assignment of a bond for transfer must be executed and acknowledged before some United States officer or, among others, the cashier of a national bank. It appears that William Albert as cashier of the defendant bank took and certified the acknowledgment of the transfer of these two bonds, and oh the form of such transfer endorsed on the bond appears a note stating such requirement and also containing the following language:

“When the assignment is made by a corporation, it must be named as assignor; when by a guardian, trustee, executor, administrator, an officer of a corporation or any one in a representative capacity, proof of his authority to act must be produced to the officer before whom the assignment is made, and must accompany the bond.”

No such authority to act appears to have accompanied the bond.

As has been stated, these two bonds were written in the name of C. A. Santmyer, trustee. That fact was clearly brought to the notice of the cashier of the defendant bank, and he being the executive officer of the bank his knowledge must be held to be its knowledge First Nat. Bank v. Burns, 88 Ohio St. 434 [103 N. E. 93]. The bank certainly was advised of the fact that the proceeds of these bonds were credited to the individual account of Santmyer, and as stated in the brief of counsel for the defense, the fact that Santmyer since then spent the money is not disputed, and it is shown that it was so expended by him from his individual account in the bank, which was introduced in evidence.

In the will of John Robinson creating the trust it was provided that an investment of the trust fund should be ‘! declared and fixed by the probate court of Hamilton county.” No formal order made by the probate court for the purchase of these bonds is shown in the proof. The account current of Santmyer as such trustee, filed December 26, 1893, under Sec. 6328 R. S. (Sec. 11029 G-. C.), shows that $15,000, the amount of such trust, had been received by him April 13, 1890, and had been expended under date July 1, 1890, for $12,000 U. S. registered 4% bonds at 121^4, amounting to $14,550. That account was allowed and confirmed by the probate court July 29, 1896. In regard to the investment of trust funds by the trustee, Sec. 6413 R. S. (See. 11214 G. C.), makes the following provision :

“Executors, administrators, guardians, and trustees may, when they have funds belonging to the trust which are to be invested, invest the same in the certificates of the indebtedness of this state or of the United States, or in such other securities as may be approved by the court having control of the administration of the trust.”

The probate court under the provisions of Sec. 6330 R. S. (Sec. 11031 G. C.), had full power to hear and determine all matters relative to the manner in which the trustee has executed his trust and all matters relating to his accounts and the settlement thereof.

It is contended by the counsel for defendant in error, that it not having been shown that the probate court ever made a formal order declaring and fixing the investment of this trust fund, that it was the right and duty of Santmyer as such trustee to sell said bonds and convert them into money for the purpose of then making application to the probate court for such formal order declaring and fixing the investment as provided in said will.

We can not admit this claim. It was said in Bayard v. Bank, 52 Pa., 232:

“The powers of an executor or administrator differ from those of an ordinary trustee; the duty of the latter being not administration, but custody and management. ’ ’

While an administrator might have the duty of converting all of the property of a decedent into money for the purpose of administration, no such duty can be claimed for a trustee, and when Santmyer, even without an order of the probate court, had invested the funds of said trust in the highest form of investment fixed by the law, Section 6413, Revised Statutes, even though such investment had not been formally directed by the court, he had no duty to make a sale of such bonds or to convert them into cash without an order of the court, especially when it has been shown that the investment had already been reported to the court in his account as rendered, and had been confirmed by the court. Such confirmation undoubtedly operated as an approval of the investment as fully as though a prior formal order had been made.

Santmyer held these bonds as trustee, so expressed on their face, and the bank purchased them with actual knowledge of this fact. The rule is well stated in 3 Pomeroy’s Equity Jurisprudence, Sec. 1048:

“Wherever property, real or personal which is already impressed with or subject to a trust of any kind, express or by operation of law, is conveyed or transferred by the trustee, not in the course of executing and carrying into effect the terms of an express trust, or devolves from a trustee to a third person, who is a mere volunteer, or who is a purchaser with actual or constructive notice of the trust, then the rule is universal that such heir, devisee, successor or other voluntary transferee, or such purchaser with notice, acquires and holds the property subject to the same trust which before existed, and becomes himself a trustee for the original beneficiary. Equity impresses the trust upon the property in the hands of the transferee or purchaser, compels him to perform the trust if it be active, and to hold the property subject to the trust, and renders him liable to all the remedies which may be proper for enforcing the rights of the beneficiary. It is not necessary that such transferee or purchaser should be guilty of positive fraud, or should actually intend a violation of the trust obligation; it is sufficient that he acquires property upon which a trust is in fact impressed, and that he is not a bona fide purchaser for a valuable consideration and without notice. This universal rule forms the protection and safeguard of the rights of beneficiaries in all kinds of trust; it enables them to follow trust property — lands, chattels, funds of securities, and even of money — as long as it can be identified, into the hands of all subsequent holders who are not in the position of bona fide purchasers for value and without notice.”

The case of Marbury v. Ehlen, 72 Md. 206 [19 Atl. 648; 20 Am. St. 467], is in point, and is a well considered and instructive case. In the opinion of the court at page 217, the following language is used:

“A trustee presumptively holds trust property for administration and not for sale. Jaudon v. National City Bank, 8 Blatchf. 430 [Fed. Cas. No. 7230], In Duncan v. Jaudon, 82 U. S. (15 Wall) 165 [21 L. Ed. 142], in affirming this decision of Judge Blatehford the Supreme Court says the party taking such stock in pledge deals with it at his peril, for there is no presumption of a right to sell it. There being no presumption of the right to sell, a corporation, ought to be held affected with notice that a trustee is probably violating his trust when he attempts to sell trust property, known to the corporation to be such, without the production of authority for making the transfer.”

The case of Jelke v. Goldsmith, 52 Ohio St. 499 [40 N. E. 167; 49 Am. St. 730] will not be deemed controlling in the pres-' ent case because of the difference there is in the duties of a trustee and those of an executor or administrator in regard to the sale of property.

It was held in Geyser-Marion Min. Co. v. Stark, 106 Fed. 558 [45 C. C. A. 467; 53 L. R. A. 684].

“The legal presumption is that a trustee had no power to sell or transfer the subject of his trust.”

In the opinion, on page 561, Judge Sanborn used the following language:

“But the word ‘trustee’ means something. It is a warning and declaration to every one who reads it (1) that the person so named is not the owner of the property to which it relates; (2) that he holds it for the use and benefit of another; and (3) that he has no right or power to sell or dispose of it without the assent of his cesttd que trust. It denies the equitable ownership and beneficial interest of the party to whom it is applied, and asserts that he holds it in a representative capacity. It signifies the opposite of the word ‘owner,’ and means that while the party called ‘trustee’ has the naked legal title, he has no beneficial right, title or interest in the property.”

In Sternfels v. Watson, 139 Fed. 505, the syllabus is in part as follows:

■ “1. The word ‘trustee’ following the name of the grantee in a deed is notice that he is not the owner of the property, and is sufficient to put all subsequent purchasers from him on inquiry as to the existence and nature of the trust.
“2. The legal presumption is that a trustee has no power of sale, and a mortgagee of property which was conveyed to the mortgagor as trustee, and all subsequent purchasers through him are bound to exercise reasonable diligence to ascertain whether or not the equitable owners of the property had authorized the execution of the mortgage. Such diligence is not exercised where there is nothing of record and they fail to make inquiry of the trustee himself, and make no effort to do so; and the contingency that he might have denied the trust is no excuse for such failure.”

The case of Strong v. Strauss, 40 Ohio St. 87, was where sale has been made by the guardian, of notes made to him as such. The syllabus is as follows:

“That one who buys such notes bearing on their face the marks of a trust fund, is put .upon inquiry; and if he buys them from the guardian, under circumstances fairly indicating that they were sold against the interest of his wards, he gets no title from the guardian who misappropriates the proceeds of the sale.”

In the opinion on page 92, the court says:

“ * * * The guardian is a trustee, and if one buys from him the ward’s personal estate, with actual or constructive notice that the same is held in trust, and under circumstances furnishing reasonable grounds to believe that the sale is not for the ward’s interest, the purchaser can acquire no title to the property, if the guardian misappropriates the proceeds of the sale. In such a case the purchaser is put upon inquiry; he buys at his peril; he can stand in no better position than the guardian himself, and must be held to be a trustee for the wards.”

The case of Duncan v. Jaudon, 82 U. S. (15 Wall), 165 [21 L. Ed. 142], is directly in point. The discussion given in the opinion of the court is quite apropos of the case at bar, but we content ourselves with quoting the syllabus, which is as follows:

‘ ‘ 1. When the trustees under a will, in making investments, depart from the rule prescribed by the testator, the right of action of the cestui que trust for an illegal disposition of the property thus substituted is not affected by reason of this departure.
“2. Where a trustee holding stock, declared on its face to be in trust for his cestui que trust, pledged the same for a loan of money to himself, the cestui que trust may compel the lender to pay the proceeds of such stock as pledged and sold by him.
“3. The party taking such stock on pledge, deals with it at his peril; for there is no presumption of a right to sell it, as there is in the case of executor.
“4. Notice of the trust communicated to the cashier of the lender when he received the stock binds the lender. ’ ’

Attention is also called to the case of Shaw v. Spencer, 100 Mass. 382 [97 Am. Dec. 107] : one paragraph of the syllabus being as follows:

“If a certificate of stock expressed’ in the name of ‘A. B.,’ trustee, is by him pledged to secure his own debt, the pledgee is by the terms of the certificate put on inquiry as to the character and limitations of the trust, and if he accepts the pledge without inquiry, does so at his peril.” '

The nearest case, however, that has been cited to the case at bar, is that of Covington v. Anderson, 84 Tenn. (16 Lea) 310. This case also involved a sale of bonds by a trustee under circumstances which gave notice to the purchaser of a violation of trust. The syllabus is as follows:

“1. If one acting as trustee convert the trust property without authority, he is responsible, and he who purchases from him, or aids in the conversion, with a knowledge of the want of authority, or under circumstances that will reasonably put one upon inquiry as regards the authority to sell or convert, is also liable.
“2. Whatever is sufficient to put one upon inquiry is notice of all the facts which would be discovered by a faithful prosecution of such inquiry.”

This case has been cited with approval in several of the later cases, and must be regarded by us as authority in this case.

Defendant purchased these bonds with due notice that it was buying from a trustee. No authority had been shown in him to make the sale, nor did defendant show that it made any proper inquiry to ascertain whether such authority existed. True, the bank paid full value for the bonds and was in no way in collusion with the trustee in committing a breach of his trust. But it permitted the proceeds of the bonds to be placed in its bank to the individual credit of Santmyer and then paid them out on his individual checks. While ordinarily it would not be permitted to supervise the expenditure of a trust fund deposited in its bank (Morse, Banks & Banking, Sec. 317), under the circumstances of the case it might have saved itself, even after its purchase, by refusing to pay out the proceeds of said bonds for other than the purposes of said trust. Not having done so it in that manner made possible the defalcation. Having thus become the purchaser of the bonds from the trustee without authority in him to make the sale, the beneficial owner or his new trustee as his representative would have the right to reclaim the bonds, or, as they had been sold, to compel an account for their value or proceeds. The surety company having, however, made good Santmyer’s defalcation and paid, the trustee of the beneficiary thus became subrogated to his rights, and by virtue of such subrogation became entitled to recover from defendants the amount of the value or proceeds of said bonds.

However, it is contended by defendant and was held by the court below Healy v. Bank, 22 Dec. 502 (12 N. S. 193), that the bonding company was barred by the six-year statute of limitations. There is no question that at the time of the commencement of the action March 29, 1901, the original plaintiff, John C. Healy, trustee, was the real party in interest. On August 26, 1901, the bonding company paid to Healy, trustee, the amount of Santmyer’s defalcation and was then subrogated to all the rights and claims of Healy, trustee, and might then have been substituted for him as plaintiff in this case. Such substitution was not in fact made, however, until February 13, 1909.

The court below held that the statute of limitations began to run on the date of such payment by the bonding company when its claim first arose, and that its action could not be considered as brought until it was formally brought into the case and substituted as plaintiff. In other words, that the payment to Healy, trustee, by the bonding company terminated his action, and the action of the bonding company was not begun until it had secured the entry substituting it as plaintiff.

Such holding disregards entirely the provisions of Section 11261 G. C. (then Sec. 5012 B. S.) :

“An action shall not abate by the marriage of a female who is a party, but if it is necessary that the husband be joined therein, he may be made a party with her. Upon the disability of a party, the court may allow the action to continue by or against his representative or successor in interest.. On any transfer of interest the action may be continued in the name: of the original party, or the court may allow the person to whom the transfer is made to be substituted for him.”

This section has been construed in Lowry v. Anderson, 57 Ohio St. 179 [48 N. E. 810], of which the following is the syllabus:

“Upon the transfer by a plaintiff, during the pendency of an action, of all his interest therein, the action may proceed in the name of such plaintiff, or the court may allow the person to whom the transfer is made to be substituted; but such transfer is no defense to the action.”

The cause of action did not abate because of the payment to Healy, trustee, by the bonding company but continued to exist in favor of the bonding company by subrogation. Under this statute as so construed such company might have been substituted as plaintiff at once, or the action might proceed in the name of Healy, trustee, the original plaintiff for the benefit of the bonding company. The action did so proceed in the name of the original plaintiff until the defendant became advised of the payment, when the bonding company was substituted as such plaintiff.

As has been stated in passing on the motion to dismiss the petition in error, this substitution was by inadvertence made in the original name of the bonding company instead of the name it then bore, but as we have found it was the same’ identical corporation with only a changed name, that error in name, was not important.

The claim against the defendant was not changed in any respect. The substitution when made related back to the beginning of the action, or, as to the interest of the bonding company, back to the time of its payment of the debt of its principal to Healy. Such payment did not operate as an abatement of the action which continued to proceed as was authorized by statute in the name of the original plaintiff. The substitution of the bonding company did not bring in any new cause of action nor create any new defense for defendant which did not previously exist. It could make no possible difference to defendant in which name the action proceeded, unless it might perchance have some set-off or counterclaim against the bonding company, and in that event, as it filed an amended answer after the substitution it had ample opportunity to have offered any such defense.

Defendant urges, however, that the decision in Lowry v. Anderson, supra, had been modified and distinguished by the several cases reported together under the name of Phoenix Ins. Co. v. Carnahan, 63 Ohio St. 258, and for that reason can not be regarded as authority here. We fail to agree with this contention. In some of the cases in Phoenix Ins. Co. v. Carnahan it was found that the rights of the plaintiffs had been assigned before the commencement of the action, and that the action was therefore not brought in the name of the real party in interest. The actions were all brought by a partnership in the firm name and during their pendency one of the partners died and there was no proper revivor or substitution of the representative or successor in interest in place of the partnership. It was therefore held that the action was in abeyance and could not proceed. The case dose not go to the extent of abrogating the provision of Section 11261, General Code, for a continuance of the action in the name of the original party where transfer of interest is made after the commencement of the suit, nor can the fourth proposition of the syllabus as claimed by counsel for defendant be so construed.

Its proper construction is rather that where an assignment had been made before suit it must be commenced in the name of the assignee, and when made after suit and revivor becomes necessary such revivor should be made in the name of the assignee.

On page 268 of the opinion the court say:

“The case of Lowry v. Anderson, does not apply here. The point of that decision was that the transfer of interest, pending the suit, was no defense to the action, and that was the only point decided in the case. It was expressly stated in the opinion that the assignee might be substituted for the original plaintiff. The case does not touch the point which arises here, viz.: that the actions were not begun or prosecuted in the name of the real party in interest. ”

In this case there is no dispute that Healy, trustee, was the real party in interest at the commencement of the action, that the action never abated, that it properly proceeded in the name of the original plaintiff until the bonding company was after-wards substituted as plaintiff under authority of Sec. 11261 G. C. The action was never in abeyance and never abated. Under such a state of facts there can be no defense of the statute of limitations.

As an illustration of the power of the court in furtherance of justice to substitute a party plaintiff and that such substitution relates back to the original commencement of the action, and might possibly thus prevent the intervening of the statute of limitations, attention is called to the recent case of VanCamp v. McCully, 89 Ohio St. 1, 8 [104 N. E. 1004].

In Nebraska, where Section 45 of the code is similar in its terms to our Section 11261, General Code, it was held in Schalerg v. McDonald, 60 Neb. 493 [83 N. W. 737].

“Under the provisions of Section 45 of the code a party may continue as plaintiff in an action and prosecute the same to final judgment, after he has transferred to another (and during the pendency of the action) his interest in the subject of the controversy.”

In Chicago & N. W. Ry. v. Jenkins, 103 Ill. 588, the syllabus in part is as follows:

“3. The bringing of a suit is the issuing of a summons or other process to bring the defendant into court. The substitution of the assignee of a bankrupt as plaintiff in a suit, is not to be regarded as the commencement of the suit by the assignee, within the meaning of the United States statute limiting such actions to two years after the assignees appointment. * * *
“4. The statute of the United States limiting the bringing of suits by the assignee of a bankrupt within two years from the time of his appointment, was designed only to apply to suits brought by him and not to actions already pending in which he may be substituted as plaintiff, although such substitution may be more than two years after his appointment. * * *
‘ ‘ 6. The statute of limitations does not run against a cause of action after a suit thereon is commenced, and during its pendency, and numerous cases hold that the mere commencement of a suit without service within the statutory period, will prevent the statute from becoming a bar.”

Nor is the case of Jenkins v. International Bank, 106 U. S. 571 [2 Sup. Ct. 1; 27 L. ed. 304], contrary to this rule, as contended by counsel for defendant in error. It holds that the statute of limitations prevents an assignee in bankruptcy from bringing error proceedings after two years (such being the limitation for bringing an action in bankruptcy) following the Illinois Supreme Court in holding that a writ of error was the beginning of a new suit.

For further illustrations of the rule that the substitution of a party plaintiff relates back to the commencement of the suit, see: Lilly v. Tobbein, 103 Mo. 477 [15 S. W. 618; 23 Am. St. 887]; Ludwig v. Insurance Co., 108 Ill. 514; McLaughlin v. Barnes, 8 Circ. Dec. 499 (18 R. 623), affirmed, no opinion, Barnes v. McLaughlin, 57 Ohio St. 632.

Where one of two parties plaintiff was omitted in an amended petition and the action proceeded with but one plaintiff, the general rule is thus stated in 25 Cyc, 1303:

“Where substitution of plaintiff by amendment does not in fact change the claim or cause of action, such amendment relates back to the commencement thereof, and stops the running of the statute of limitations at that point.”

The court below, therefore, erred in holding that the statute of limitations prevented recovery by the substituted plaintiff, but said court should have entered a judgment in favor of such plaintiff for the amount of proceeds of said bonds, with interest from the date of their sale.

The judgment below will therefore be reversed, and a judgment may be entered here for the plaintiff in .error.

Swing and Jones (E. H.), JJ., concur.


source: Caselaw Access Project

author: JONES (O. B.), J.

license: Public Domain

text:
    STREET RAILWAYS
    [Hamilton (1st) Court of Appeals,
    April 4, 1914.]
    Swing, Jones and Jones, JJ.

      Cincinnati Trac. Co. v. Martin Pierman.
    1. Neither Inspector nor Barn Foreman Fellow-Servants of Motorman.
    Neither an inspector ñor a barn foreman, employed by a traction company, can be classed as fellow-servants of an injured motorman, for whose acts the company would not be liable.
    2. Negligence of Conductor of Disabled Car Operated In Obedience to Orders of Inspector Contrary to Rules not Available Defense for Injuries Received thereby by Motorman of Another Car.
    "When in obedience to the order of an inspector a disabled car which could not be controlled, except by use of the reverse current, was being taken to the barn in a manner contrary to the rules of the company, alleged negligence thereby on the part of the conductor of the disabled ear is not available in an action by an injured motorman who was operating another car and was without fault.
    Error.

      Miller Outeall, for plaintiff in error.

      Philip & 8. G. Boetiinger, for defendant in error.

      Affirmed no opinion, Cincinnati Trac. Co. v. Pierman, 91 Ohio St. 417.

   JONES (O. B.), J.

Plaintiff below was a motorman employed by the defendant below, and had prepared to take a ear ont of its car barn near Eighth and Depot streets, for its regular trip when he was ordered by the inspector to stop just inside the ear barn and hold himself in readiness to proceed after the inspector had brought in a car. The ear which was being brought in had become disabled down in the city and its motorman and conductor had, under the instructions of the inspector in charge at that point, undertaken to bring it into the car barn on its own power although its brake had been entirely disabled by the accident so that it was utterly useless and the only means of checking the car was by the use of the “reverse” by the motorman. This means of retarding or stopping the car was sufficient while the current was on, and ceased to operate entirely whenever the trolleys became disengaged from the trolley wires and the current was thus disconnected.

Rules 17 and 18 of the general rules for a conductor and motorman of the defendant company were introduced in evidence,.being as follows:

“17. Reporting Defects — Conductors and motormen will report at first station of the company they first meet, any defect in car, track, wires or poles which needs immediate attention.
“Should same be in a dangerous condition, the crew will not leave the point of danger until relieved by the crew of the next car ai'riving, or by other employes of the company.
“18. Disabled Cars. — If a car becomes disabled and if repairs can not be made without unnecessarily blocking the street, the crew must arrange to have the nearest available car take disabled car to carhouse, or such other place as will avoid obstruction.”

When this car became disabled an inspector was called who undertook its management. It seems that he used another ear to straighten it out and start it towards the barn by towing it, but as above stated he instructed its crew to proceed to the barn without any other car, taking it only on its own power and without any means of braking other than the reverse current.

It appears that when this disabled car reached Eighth and Depot streets another inspector was there in charge. The usual method of taking the cars into the barn at that place was to back them in. The level of the barn being five or six feet lower than the street above, the cars would run down easily, and the barn foreman who was in charge there would direct the throwing off the proper switch to carry the car into the track on which it was intended to leave it. The barn foreman was present and in charge, at this time, and a boy who was under his directions had thrown the switch. The disabled car, which was a heavy two truck car of the modern type, running backward was controlled by the motorman by using his reverse current until the trolleys either flew off or were taken off the wires by the conductor, and the reverse current from that time failing to be effective the car ran away, and, because the wrong switch had béen turned, ran into the track on which the car about to be operated by the plaintiff was standing, resulting in a collision, in which the plaintiff below received severe injuries.

The defendant below filed a demurrer to the amended petition, which was overruled. This demurrer was based upon the claim that the petition showed that the injury was caused by a fellow-servant, and the same issue was afterwards raised by the answer, and is pressed here as the main ground of error.

While plaintiff himself testified that he saw the conductor of the disabled ear apparently manipulating the trolleys as though he had pulled them off .the wires, he stated that he could only see the car a matter of eight or ten feet away as it turned into the track or curve, and there is other testimony tending to show that the trolleys might have jumped off the wires thus breaking the current, it appears that it was necessary for the conductor to manipulate the trolleys because of the complex nature of the overhead wiring at that point; so it does not follow that the entire proximate cause of the injury was merely the disconnection of the current by the conductor, or that such disconnection was not necessary in order to pass the car into the barn. But further negligence is shown in the management by the company in the manner of adjusting the switch, as it was not intended that this disabled car should enter into the track on which plaintiff’s car was standing, as that track entered upon an opening not sufficiently large to permit the entrance of as large a car as this disabled one.

In the opinion of the court, however, the real cause of the injury was in undertaking to manipulate a car in such a condition without having it under sufficient control. Rule 18 seems to have been violated by the employes of the traction company, and its inspectors were responsible for such violation. Neither the inspectors nor the barn foreman, who was responsible for the placing of the switch, would be classed as fellow-servants of the plaintiff, for whose acts the defendant would not be liable. And indeed it might be a question whether, if the negligence were alone that of the conductor on this disabled car, the fellow-servant doctrine could be a defense, because of the unsafe condition of such car, in view of the terms of Sec. 6244, G-. C.

Plaintiff was entirely without fault and was acting under the orders of his superior, and the ruling of the court below on the demurrer was correct.

Plaintiff in error claims that the court below erred in that part of its general charge relating to the proximate cause. The language employed might have been more clear and specific, but we do not find that it resulted in prejudicial error to the defendant below, and a careful consideration of the entire record fails to disclose any-prejudicial error.

The judgment is therefore affirmed.

Swing and Jones (E. I-I.), JJ., concur.


author: MARVIN, J.

text:
    APPEAL — PAYMMENT
    [Cuyahoga (8th) Circuit Court,
    December 9, 1907.]
    Winch, Henry and Marvin, JJ.
    John Holland v. Louis J. Lee.
    Surety on Bond for Appeal not Perfected Paying Judgment, Mere ■ Volunteer.
    When the surety upon an appeal bond in a case wherein no appeal was ever perfected, pays the amount of the judgment and costs in the justice court, he is a mere volunteer and can not recover the amount so paid from his principal who failed to perfect the appeal.
    Error.

      George A. Groot, for plaintiff in error.

      J. A. Thompson, for defendant in error.
   MARVIN, J.

The plaintiff in error was the plaintiff in the court below. To his petition filed in that court a general demurrer was sustained, and the plaintiff not desiring to plead further, judgment was entered for the defendant, dismissing the petition of the plaintiff. The action of the court in sustaining the demurrer is complained of.

From- the petition it appears that a judgment was obtained before a justice of the peace by George A. Groot against this defendant ;■ that at the request of this defendant the plaintiff signed the bond for an appeal from that judgment; the condition of that appeal bond being, as provided by law, that he did “promise and undertake that the said appellant, if the judgment be adjudged against him on the appeal, will satisfy such judgment and costs, not exceeding the sum of $60, and I do also undertake, in said last mentioned sum that the said appellant will prosecute his appeal to effect, and without unnecessary-delay. ’ ’

Said appeal was never perfected, and at the expiration of the time fixed by law for perfecting such appeal the plaintiff in the action before the justice demanded of the plaintiff in this action that he pay said judgment and costs, saying that if this was not done, he (the plaintiff in the action before the justice) would file a transcript in that action and cause a judgment to be rendered against this plaintiff in the court of common pleas.

The plaintiff herein, after said demand was made upon him, demanded of this defendant that he satisfy said judgment* and costs and thereby relieve this plaintiff from the payment of the same. The defendant refused to comply with that request and to pay said judgment, and-the plaintiff in order to save any further expense incident to the case went to said justice and paid in satisfaction of said judgment and costs to which said Groot was entitled the sum of $29.85.

It is for this sum so paid by the defendant that the present suit is brought.

It will be noticed that the appeal never was perfected by anybody; that therefore, the time never came when the plaintiff was required by law to make the payment which he did make. True this undertaking was that Lee would perfect his appeal and prosecute it to effect, and without unnecessary delay. Lee. failed to do it, but there was no obligation on Holland to pay until that appeal had been perfected by somebody. Groot could have perfected the appeal, as he threatened to do, and if he had perfected it, it is said Holland would then be bound to pay. But he was not bound to pay unless the appeal was perfected by somebody, and it does not follow that because Groot threatened to perfect that appeal and take judgment against Holland that he would have done so. Holland must, therefore, be treated as having made a voluntary payment for Lee. Lee never requested him to make it, and it is settled that when a pure volunteer pays the debt of another, he is not entitled to recover from him whose debt he pays. See Oaks v. Campbell, 3 Dec. 706 (7 N. P. 314); Gimperling v. Hanes, 40 Ohio St. 114.

The case of Williams v. Williams, 5 Ohio, 444, to which attention is called by the plaintiff in error, differs materially from the one now under consideration. In that case a surety paid a debt for his principal, but it was upon an obligation for the payment of money made by the principal and the surety jointly to the creditor. Money was due. Bach of the makers of the instrument was liable upon it. Suit could be maintained directly upon it against each or both and so when the surety paid, he did not pay as a volunteer, but paid upon an obligation in which he was directly responsible to the creditor.

In the case under consideration the plaintiff was not under any obligation to pay anything until judgment should be rendered against his principal on the appeal.

In the case of Hollinsbee v. Ritchey, 49 Ind., 261, the syllabus reads as follows:

“When a surety pays a debt, he must be legally bound for it to enable him to recover the amount paid of the principal, and the principal must also, at the same time, be under a legal obligation to pay the debt.
“ In an action of replevin, where a bond is filed and possession of the property obtained, and afterward the suit is dismissed by agreement of the parties, the plaintiff agreeing to pay the defendant a certain sum, but where no judgment is rendered, if the surety on the replevin bond afterward, without the request of the plaintiff, pays the amount agreed to be paid to the defendant, he can not recover the same of his principal, the payment being voluntary on the part of the surety."

We reach the conclusion in this case that the judgment of the court of common pleas was right, and the same is affirmed.

Winch and Henry, JJ., concur.


text:
    SPECIFIC PERFORMANCE
    [Cuyahoga (8th) Circuit Court,
    December 9, 1907.]
    Winch, Henry and Marvin, JJ.
    Elita E. Peck v. Elizabeth D. Osborn
    1. Specific Performance not Decreed when Inequitable.
    The equitable remedy of specific performance of contracts even when they are valid and binding at law is not a matter of course, and is so completely governed by equitable considerations that it is never granted unless it is entirely in accordance with equity and good conscience.
    2. Parol Evidence of Mistake in Defense to Action for Specific Performance.
    In actions for specific performance of written agreements, the defendant may show by parol evidence that, through the mistakes of both or either of the parties the writing does not express the real agreement, or that the agreement itself was entered into through a mistake as to its subject-matter or as to its terms.

      E. E. Parson, for plaintiff.

      Solders, Thayer & Mansfield, for defendant.
   MARVIN, J.

Mrs. Peck brings a suit against Mrs. Osborn, alleging that the plaintiff entered into a contract in writing with the defendant, by which the defendant agreed to sell to the plaintiiff a certain parcel of real estate, described in the petition, for sum of $8,375, and to convey the same to her by good and sufficient deed on payment by her (the defendant) of said sum. The plaintiff says that she has paid a part of the purchase money; that she is and at all times since the making of the contract has been ready and willing to perform on her part and pay the said purchase price to the defendant, but the defendant has notified her that she would not accept payment, and would not convey the property, and the plaintiff asks for a decree of the court that the premises be conveyed to her.

The contract upon which the plaintiff relies reads as follows :

“50.00 402977.
“Cleveland, O., Feb. 4, 1907.
“Received of T. T. Lewis a/c E. Peck, Fifty and no/100 ..........................................dollars to apply on purchase price of 1840 East 82nd Street. Consideration $8375.00.
“Elizabeth D. Osborn.”

The evidence shows that Mrs. Osborn owned the real estate described; that some time in the early part of February, 1907, one Thomas T. Lewis, a real estate agent of this city, called on Mrs. Osborn, and asked if her property was for sale. She told him it was, and that her price was $10,000 but that she would probably take $9,000 and that he might find her a purchaser at that price if he could. Lewis went to Mr. Peek, the husband of the plaintiff, and who acted for her in the transaction, and suggested to him that he purchase the property. Peck and his wife visited the property and saw Mrs. Osborn. Lewis visited her several times,- and also visited the Peeks; Mr. Peck finally said to' Lewis that he would give $8,000, and perhaps $375 more. Lewis seems to have been anxious that Mrs. Osborn should sell at some price which Peck would give and having learned from Peck that he would probably give over $8,000 and perhaps as high as $8,300 or $8,375, and he went again to Mrs. Osborn. When Peck told Lewis that he would give something more than $8,000 he gave him a check for $50 to apply on the payment, if she should decide to accept the price. Subsequently, this check was taken up and another, given, but as we look at the case, it is a matter of indifference about that. On this visit to Mrs. Osborn Lewis produced and asked her to sign a contract for the sale of the land at $8,375. This she refused to do. He then wrote the receipt hereinbefore quoted, which constitutes all the written contract ever entered into between the parties. Mrs. Osborn signed this receipt and the check was left with her. We find as a fact that she did not read this receipt, nor was it read to her or understood by her . It may be said that she ought to have read it, and such is the law ordinarily that she must be held to have understood what the paper was which she signed before she signed it; in any event that she must be held to have known what it was. But we are satisfied from the evidence that she did not understand at the time she signed this that she was thereby pledging herself to sell this property for $8,375. -She was in feeble-health at- the time; she was not accustomed to the transaction of business of any such importance as this; sbe was in tbe babit of relying upon tbe judgment and advice of Mr. John W. Taylor, and she did say to Lewis that Mr. Taylor was in tbe babit of looking after ber business affairs, and that she did not want to make tbe sale without consulting him. But Lewis by bis conduct shows that be was very anxious that tbe sale should be made at once; and indeed be was so anxious that be persuaded Mrs. Osborn to sign this receipt without waiting to consult Taylor or anybody else. Tbe price which this receipt states to be tbe consideration is low, as appears from tbe evidence; perhaps not so low that we would be justified in refusing tbe relief prayed for, if Mrs. Osborn bad understood what sbe was doing when sbe signed this receipt, but as sbe did not understand it, and as sbe told Lewis that sbe would like tbe advice of Taylor, and as she was not accustomed to transact business of this importance on ber own account, we are of tbe opinion that it would be inequitable to bold ber to a conveyance of this property to tbe plaintiff.

We feel justified in this bolding by tbe authorities, some of which we cite, and from some of which we quote.

In 2 Pomeroy, Equity Jurisprudence (3 Ed.) Sec. 860, this language is used:

“Tbe second class of cases embraces those in which parol evidence of mistake is offered defensively. Tbe equitable remedy of tbe specific performance of contracts, even when they are valid and binding at law, is not a matter of course, it is so completely governed by equitable considerations that it is sometimes, though improperly, called discretionary; it is never granted unless it is entirely in accordance with equity and good conscience. It is therefore a well settled rule that in suits for tbe specific enforcement of agreements, even when written, tbe defendant may by means of parol evidence, show that through tbe mistakes of both or either of tbe parties, tbe writing does not express tbe real agreement or that tbe agreement itself was entered into through a mistake as to its subject-matter or as to its terms. In short, a court of equity will not grant its affirmative remedy to compel tbe defendant to perform a contract which tbe court did not intend to make, or which be would not have entered into bad its true effect been understood. A mistake which is entirely tbe defendant’s own, or that of bis agent, and for which tbe plaintiff is not directly or indirectly responsible, may be proved in defense, and may defeat a specific performance.”

Other language to the same effect is used in the remaining part of the section.

In Bowman v. Cunningham, 78 Ill., page 48, this language is used:

“If the contract is not certain and it is not clear from the evidence that the exact terms thereof were agreed upon and understood by the parties, and the contract is not fair in all its parts, it will not be specifically enforced.”

In City of Tiffin v. Shawhan, 43 Ohio State, 178, the first clause of the syllabus reads :

“The duty of a court of equity to decree specific performance of a contract to convey real estate, can not be determined by any fixed rule, but depends upon the peculiar facts and equitable considerations of each case, and rests in the sound discretion of the court, guided and regulated, however, in the exercise of that discretion, as far as may be, by precedent and established practice. ’ ’

See also Mansfield v. Sherman, 17 Atlantic, 300; Hatch v. Kizer et al, 140 Ill., 583; Wingart v. Fry, Wright’s Reports, 105; City of Fort Smith v. Brogan et al, 5 Southwestern, 337. See also note to the case of Hatch v. Kizer, in 33 American State Reports, page 261.

We reach the conclusion, therefore, that the petition in this case must be dismissed, the costs will be charged one-half to each party.

In reaching this conclusion it is fair to the plaintiff to say that we find no fraud or misrepresentation on the part of either her or her husband. If the conduct of any one of the parties engaged in this transaction is to be criticised, it is that of Mr. Lewis, who became the agent of the defendant, not at her solicitation, but his own, and who does not appear to have been wholly interested in the doing all that he could to procure for her the best price, but who seems to have been more anxious to make a sale of the property than to obtain for the defendant the highest price that could be obtained.

Winch and Henry, JJ., concur.


author: HENRY, J.

text:
    ASSIGNMENTS
    [Cuyahoga (8th) Circuit Court,
    December 14, 1908.]
    Winch, Henry and Marvin, JJ.
    State Banking & Trust Co. v. C. A. Krause, Jr., et al.
    Priorities of Assignments Determined by Notice and Acceptance.
    An assignment of a fund, of which the debtor has notice and which he accepts and agrees to pay to the assignee, has preference as against an earlier assignment of which the debtor had no notice.
    Error.

      Smith, Taft & Arter, for plaintiff in error.

      Carpenter, Young & Stocker, Kline, Tolies & Goff and Smith, Taft & Arter, for defendants in error.
   HENRY, J.

The action below was begun by the defendant below, trustee in bankruptcy of the George W. Beeman Co., to recover from the Erie Ry. a balance due the bankrupt for construction work under a written contract. Various other claimants for this balance filed cross-petitions, and the Erie Ry. paid the money into court, where it was finally awarded to the trustee in bankruptcy.

The State Banking & Trust Co. prosecutes error and claims the fund should have been awarded to it under an assignment made to it by the bankrupt, on estimates to become due from the Erie Ry. under said contract; said assignment being made as security for advances which the bank thereupon made to the bankrupt. Other assignments of the fund were subsequently made, and one at least, in an amount sufficient with interest to consume the entire balance now in controversy was accepted by the railroad company, and payment thereof, out of moneys to become due from it to the bankrupt, was apparently promised before plaintiff in error gave notice to the railroad company of its said assignment, thus bringing the case within the exception to the rule announced in the opinion of Day, J., in Copelan v. Manton, 22 Ohio St., 398-401, where it is said in substance, that:

“The assignees of a fund take subject to all equities existing between the assignor and the debtor at the time he had notice of the assignment; but the time of notice will not be material, unless it becomes so for the equitable protection of the debtor or of a bona fide purchaser. ’ ’

In other words, the plaintiff in error’s assignment, though earliest in time, must be postponed in effect, to such orders thereafter made by the bankrupt upon the railroad company as the latter had accepted and agreed to pay before receiving notice of the prior assignment.

■The bill of exceptions, at pages 77 and 78, makes reference to a certain document described as “Nicola’s Exhibit 1,” purporting to be signed by one Parsons, on behalf of the Erie By., and pledging it to the payment of an order made by the bankrupt out of the funds due and to become due the latter, in a sum of money sufficient, as aforesaid, to consume the entire fund in controversy. The authenticity of this signature is admitted, but the defendant in error denied the capacity of Parsons to bind the Erie By. Thereupon “Nicola’s Exhibit 1” was formally offered in evidence. A search of the bill of exceptions. fails to reveal it as attached to or made a part thereof. A docu- • ment is exhibited to us outside the record purporting to be “Nicola ’s Exhibit 1, ’ ’ and it is evidently the document offered in evidence, but we can not consider it, because it is not a part of the record before us. ¥e are, therefore, unable to weigh the evidence presented in the court below so as to say that that court erred in holding as it did hold, that plaintiff in error’s claim must be postponed to other claims.asserted in the case. For the same- reason, namely, that we can not weigh the evidence at all because of the imperfect bill of exceptions, we forbear to discuss the claims of the -Buckeye Line Co. further than to say that this company has filed no cross-petition in error, and as intimated on the hearing we see no reason why we should give it leave to do so now,. ¥e are content with the affirmance which we are thus - forced to make, because we think, if the merits of the case were properly before us, we should come to the same conclusion with regard to the rights of all the parties to the record and hold that the court below adjudicated the whole matter correctly. Not being able to weigh the evidence, and -finding no error in the record, we affirm the judgment below.

Winch and Henry, JJ., concur.


text:
    DIVORCE AND ALIMONY
    [Cuyahoga (8th) Circuit Court,
    January 25, 1909.]
    Winch, Henry and Metcalfe, JJ.
    Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Marvin.
    Samuel C. Myers v. Minnie Myers.
    Alimony Pendente Lite in Discretion of Court.
    An award of alimony pendente lite is in the discretion of the court wherein the action is pending, and when there has been no abuse of discretion no appeal lies to the higher courts.

      William A. Spill, for plaintiff in error.

      Riley <& McQuigg, for defendant in error.
   HENRY, J.

This proceeding in error is prosecuted to reverse an order allowing alimony pendente lite, in an action for alimony still pending in the' court of common pleas. The plaintiff in error is a locomotive engineer, whose earnings are from $85 to $158 per month, and has living with him two children by a former marriage; a son who is still in minor, and a daughter of the age of 22. Thé defendant in error is about 23 year's old.

An answer filed by plaintiff in error, who was defendant below, denies the allegations of the petition, and at the hearing of his wife’s application for alimony pendente lite, he sought to introduce evidence that she had left him, not for good cause, but because he failed to give her all the money she thought she ought to have. The court allowed $7 a week pending the final hearing. The court below was not required to examine fully the merits of the main action in passing upon the application for alimony pendente lite, and the testimony which it excluded was not such as to defeat that application. Unless a perfect defense to the main action were made, at the preliminary hearing, the court’s discretionary power to allow alimony pendente lite can not be doubted, and we hold that that discretion was not abused in this case.

Judgment affirmed.

Winch and Metcalfe, JJ., concur,


text:
    MERCHANICS’ LIENS
    [Cuyahoga (8th) Circuit Court,
    June 14, 1909.]
    Henry, Marvin and Winch, JJ.
    E. A. Thompson v. James Rosenberg et al.
    Material-Man may Rely on Ostensible Price to be Paid Contractor,
    When a material-man who has furnished material to a contractor, relying upon the ostensible price the contractor is to receive, has perfected his lien under Sec. 3201 R. S. (Sec. 8332 G. C.), he is entitled to payment as against the grantee of the original owner, who upon default of the contractor, has furnished money necessary to complete the buildings to an amount in excess of the actual price but less than the ostensible price the contractor was to receive.
    Error.

      H. F. Parks and Howland & Niman, for plaintiff.

      H. A. Iiangesser, John D. Fackler, Frank Higley, Myler & Turney, W. D. Meals and Max E. Katz, for defendants in error.
   HENRY, J.

This action was commenced by E. A. Thompson, doing business as the Independent Lumber Co., plaintiff, v. James Rosenberg and A. B. Katz, defendants, to establish a mechanic’s lien based upon an attested account against two residence lots; to the erection of houses thereon the items of lumber in said account were devoted. A money judgment against the defendant Rosenberg, as for money had and received, is also prayed.

Rosenberg was the owner of the real estate in question on November 10,1906, at which date he entered into a contract with Pickel and Schmulowitz, building contractors, for the erection of the two dwellings aforesaid, for the sum of $5,500 ostensibly, but really $4,500 according to plans and specifications furnished by J. B. Eberling, architect.

Before the first estimate became payable on this contract price, plaintiff had delivered lumber to said contractors on said premises to the amount of $969.29, no part of which had been paid; and on March 5, 1907, the plaintiff filed with the defendant Rosenberg an itemized and verified statement of account. March 8, 1907, an affidavit and itemized statement was filed with the county recorder for a lien under Sec. 8201 R. S. (Sec. 8332 G. C.)

Meanwhile, however, Rosenberg had a difference with the contractors which resulted in their stopping work January 18, 1907, after work of the estimated value of $1,195 had been completed, though some of it was afterwards done over on account of defective construction. Thereupon the defendant Katz advanced money from time to time, between February 1 and October 20, 1907, amounting to $5,739.86, by means of which the buildings were completed. Katz thereupon took a conveyance of the property from Rosenberg, and the real controversy is between him and the plaintiff. Eighteen hundred and five dollars and thirty-three cents of this amount was advanced to Rosenberg, who though claiming that he paid $300 additional out of his own pocket, in fact accounts in detail for only $1,790.23 as paid out by him for construction of the houses. There is still owing for plumbing $145 and furnace $140. Plaintiff claims some $40 additional which may be allowed without affecting the result, besides the $3,934.53 which he admittedly paid out, otherwise than through Rosenberg, in connection with the property. $1,139.35 thus paid out is, however, conceded not to have been paid for construction of the buildings; and the sum of $475 paid to lift pending or impending liens of employees of Pickel and Schmulowitz, must also be disallowed in so far as it swells the construction account beyond $4,500, which was the original contract price really agreed to between the party Rosenberg and these building contractors.

An ostensible price of $5,500 was, however, as already mentioned, named in the written contract between the parties apparently for the purpose of deceiving the bank from which the money was to be borrowed to finance the construction. This device deceived the plaintiff also, and must therefore be taken to be the real contract price so far as he is concerned. There is thus enough of the ostensible contract price remaining in the owners hands to pay plaintiff’s claim of $969.29 in full.

The Lakeview Land & Improvement Co., one of the defendants herewith, sets up a purchase money mortgage of $1,685 given by defendant Rosenberg November 12, 1906, and filed for record November 16, 1906. Another defendant, the Woodland Avenue Savings & Trust Co., sets up a mortgage for $4,500 given by Rosenberg to Katz, and by Katz transferred to it. This mortgage was filed for record February 2■ 1907, but priority is claimed for it over the previous mortgage by virtue of a waiver signed by the Lakeview Land & Improvement Co. The latter company appears to have waived the priority of its mortgage upon conditions that two houses should be erected upon the premises before June 1, 1907, at a cost and value of at least $2,-500 each. But the pleadings do not' properly raise this issue, presumably because the conditions of the waiver can not be shown to have been complied with. The marshaling of the other liens involves no dispute.

Plaintiff may take decree.

Marvin and Winch, JJ., concur.


text:
    ATTACHMENT AND GARNISHMENT — COURTS
    [Cuyahoga (8th) Circuit Court,
    December 9, 1907.]
    Winch, Henry and Marvin, JJ.
    C. W. Jamison v. Cooper Medicine Co.
    1. Personal Service Effected, Property Taken or Found In Hands of Creditor, Essential to J. P. Jurisdiction in Attachment,
    To confer jurisdiction on a justice of the peace in an attachment case it must appear, either that personal service was had upon the defendant, or that property of the-defendant has been taken in attachment, or found in the hands of a garnishee, or that a garnishee is indebted to the defendant.
    2. Jurisdiction, of Person or Property must' Appear of Record, no Presumption of J. P. Jurisdiction.
    There is no presumption favoring the correctness of a judgment of a justice of the peace, and to support a judgment of his court it must affirmatively, appear by the record that it had obtained jurisdiction over the person or property of the defendant.
    Error.

      George A. Groot, for plaintiff in error.

      C. N. Fiscus, for defendant in error.
   MARVIN, J.

The parties here are as they were in the court below. The plaintiff brought suit against the defendant before a justice of the peace, and at the time of bringing the suit filed an affidavit for attachment and garnishment, averring that Benton-Hall & Company, Strong, Cobb & Co. and W. G. Marshall had property in their possession and rights in action, the property of the defendant and were indebted to the defendant. Summons was issued to the defendant and an order of attachment served upon Benton-Hall & Co., Strong, Cobb & Co. and W. G. Marshall, as garnishees. None of these parties garnisheed made any answer in the case, and the return of the officer serving the notice or order upon said garnishee shows, that he did not take possession of any property of the defendant in the hands of any one of said garnishees. The officer failed to find the defendant and thereupon the case was continued for service by publication, which was duly made, and then upon the case being called before the justice at the time to which it was adjourned, and the defendant not appearing, the justice proceeded to hear the case, and rendered judgment for the plaintiff. To reverse this judgment of the justice the defendant filed a petition in error in the court of common pleas, and on hearing in that court the judgment of the justice was reversed. The present proceeding is brought- to reverse this judgment of reversal.

One of the claims made by the defendant in error is that the justice was without jurisdiction to render any judgment against him, because, it is said, no personal service was had upon the defendant, -and no property of his was brought into court or under control of the court by the proceedings in attachment and garnishment.

If this contention is true, of course the common pleas was right in reversing this judgment of the justice.

Section 6496 B. S. (Sec. 10262 G. C. et seq.), provides for the obtaining of services upon the defendant by publication in attachment proceeding:

“When any property of the defendant has been taken under an order of attachment,” etc.

In this case it will be noted that no property was taken.

Section 6503 B. S. (See. 10275 G. C.), provides what shall be done if the garnishee appears and answers and it is discovered on his-examination, that at or after the services of the order of attachment and notice upon him he was possessed of any property of the defendant, or was indebted to him.

It will be noticed that this case is not governed by the statute just quoted, because it did not appear that either of the garnishees had any property of the defendant, or was indebted to him.

Section 6504 B. S. (See. 10227 G-. C. et seq.), provides what may be done if the garnishee fail to appear and answer, or if he appear and answer and his disclosure is not satisfactory to the plaintiff in such case the plaintiff may proceed in an action against the garnishee.

It will be noticed that that course was not here pursued and we know of no provision of law which authorized the proceeding which was here had, to wit, the proceeding by. the justice to enter a judgment against the defendant where no service had been made upon him, no property had been taken in attachment, and no property had been found in the hands of any garnishee, nor was it found that any garnishee was indebted to the defendant. It can not be doubted that the justice was without jurisdiction to render judgment against the defendant, where personal service was not made upon him, unless he found that there was property or rights in action of the defendant which were within his jurisdiction. The transcript of the docket of the justice shows no finding in this regard, and so it is urged on the part of the plaintiff in error that the justice must have found that there was property or rights in action of the defendant within his jurisdiction, and that in the absence of any finding that there was no such property, the reviewing court was bound to assume that he did find it, because, it is said, that every presumption must be taken in favor of the correctness of the judgment of the justice, and therefore, the presumption must prevail that some fact existed which gave him jurisdiction.

This proposition is not sound. See Robbins v. Clemons, 41 Ohio St., 285, where the syllabus reads:

“1. The’jurisdiction of a justice of the peace in this state is inferior and limited; and to support a judgment of his court the record must show that it had obtained jurisdiction over the person of the defendant.
“2. Section 14, of the act of March 13th, 1853, regulating the jurisdiction and procedure before justices of the peace, provides that summons must be served by delivering a copy thereof with the indorsements thereon duly certified to the defendant, or leaving the same at his usual place of residence:
“Held: That a return by the constable of service of summons in these words, ‘served on the second day of January, 1861, by reading’ shows a want of service and not merely a defective service or return; and where the record does not otherwise show that jurisdiction of the defendant was obtained a judgment by default is a nullity and may be attacked collaterally. ’ ’

Of course, in attachment, it is not necessary under a proper state of facts that personal service be made upon the defendant, and this case is cited not for the purpose of showing that the justice was without jurisdiction for want of personal service on the defendant, but simply for the purpose of showing that the presumption which arises in courts of general jurisdiction, that the court had jurisdiction in the case, unless the contrary appears by the record, does not apply to cases before a justice of the peace, and that when the record fails to show that the justice had jurisdiction, the reviewing court must find that he was without jurisdiction. This being so, it follows that he was without jurisdiction, and that the judgment of the court of common pleas reversing the judgment of the justice of the peace was l-ight, and said judgment of the court of common pleas is affirmed.

Winch and Henry, JJ., concur.


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    CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    November 8, 1909.]
    Henry, Marvin and Winch, JJ.
    Margaret K. Smith v. Peoples Gas Light Co.
    1. Action of Stockholder to Restrain Action of Other Stockholders not Maintainable.
    A minority stockholder can not maintain an action to restrain the other stockholders from exchanging their stock in the corporation for stock in another corporation when the action so complained of is the action of individuals and not of the corporation.

      2. Exchange of Stock in Violation of Statute not Ground to Enjoin Transfer.
    The fact that the exchange of stock by stockholders in one cor- ■ poration for stock in another may- result in- a violation: of-the state anti-trust law to which the state might object, gives a dissenting stockholder no right to enjoin such exchange.
    Error.
    jBT. L. Peeke, for plaintiff in error.

      Squire, Sanders & Dempsey, for defendant in error.
   HENRY, J.

This is an action brought by a minority stockholder in the Peoples Gas Light Company to enjoin certain acts by the majority of the stockholders in the corporation, and also by a majority of the stockholders in the corporation co-defendant, the Cleveland Gas Light & Coke Co., both of which are corporations organized under the laws of Ohio, and the third corporation de- - fendant, which is a corporation organized under the laws of West Virginia. It is alleged in the petition substantially that the directors of the two Cleveland corporations, not acting in their official capacity, that is through any resolution passed in a meeting of the board, but upon their individual responsibility, have, together with the other stockholders constituting with them a majority, entered into an agreement or conspiracy to violate the anti-trust law of this state, in bringing about what is in effect though not in form a consolidation of the two Cleveland companies, in connection with other companies in other cities, by exchange of their stock for stock in the West Virginia company.

It is claimed on behalf of the plaintiff that she has the right for herself and on behalf of the minority stockholders, to maintain this action to enjoin the transactions already -referred to. She does not allege in her petition any special damage to herself or to those who are in like case with her, different from the results which will accrue to all of the ■ stockholders of the two Cleveland companies. She does not allege that any effort is being made to defraud her, or that she will sustain any special injury, but she does claim that she has the'right to maintain this action, in.precisely the same manner that a minority.stockholder in any corporation may maintain- an action to enjoin or to redress by some other means, a wrong threatened to be committed or actually committed by the corporation of which she is a stockholder, through the commission of ultra vires acts, acts which are beyond the power of the corporation, to perform.

Now, there is abundant precedent for the maintenance of that sort of action. There is no question that a minority of the stockholders, without alleging any special damage to himself may, after exhausting the possibilities of redress within the corporation itself, maintain an action in the court to prevent or to undo any corporate act in excess of the charter powers of the corporation. And if it is apparent in the face of things that application to the corporation would be futile, for the purpose of obtaining such redress, it is unnecessary to make such application as a prerequisite to the maintenance of such an action. But as has been stated in the argument of this case by plaintiff’s counsel, the allegation is made in the petition that plaintiff has applied to the corporation for redress of the grievances complained of.

We may assume for the purpose of our decision in this case, that the facts alleged in the petition are sufficient, under the authority of State v. Standard Oil Co., 49 Ohio St. 137 [30 N. E. 279; 15 L. R. A. 145; 34 Am. St. 541], to be a foundation for an action by the state, such as that action was, to oust the corporation from the exercise of the illegal powers which it has assumed to possess and use. That case, it will be remembered, was a ease where, so far at least as the syllabus discloses, there was no formal corporate action in excess of its corporate powers. The corporate action there consisted, so far at least, as the syllabus goes, was of the action of the stockholders individually. In this case, as in that, if there has been any such infraction of the law, any attempt to violate the Valentine act, the anti-trust law of this state, such as the petition complains of, there is abundant redress provided by the laws of this state at the suit of the state itself. So that these wrongs, if they be wrongs, will not need to go unredressed.

So far as the plaintiff herself is concerned, there is no precedent, so far as we know, any where in the books, for the maintenance of an action by a minority stockholder to restrain corporate action beyond the lawful powers of the corporation where such action so complained of is merely constructively a corporate action — that is to say, an action of the stockholders as distinguished from formal action of a corporation in the manner in which such action under the statutes of the state must be regularly had. And we are unwilling to take the new step that it will be necessary to take, as we understand the case, in order to grant the plaintiff the relief which she prays for. And although the objection to the petition is interposed upon our own motion and not upon the motion of counsel for defendant, we are disposed to hold, and do hold that the case made by the plaintiff does not constitute a cause of action.

Marvin and Winch, JJ., concur.


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    FRAUD AND DECEIT
    [Cuyahoga (8th) Circuit Court,
    November 1, 1909.]
    Henry, Marvin and Winch, JJ.
    Frank Wirick v. Mary L. Clunk.
    False Representations Making Parol Contract within Statute of Frauds not Actionable.
    An action for deceit for false representations inducing plaintiff to purchase personal property can not be maintained when the representations are such that were they a part of the contract it would be within the statute of frauds.

      Dunning, Knight & Eagle son, for plaintiff in error.

      E. J. Tohaben, contra.
   HENRY, J.

The parties to this proceeding in error stand in the relation opposite to that in which they stood below. The petition below is as follows:

“Plaintiff says that on or about February 14, 1907, the defendant in order to induce the plaintiff to buy of him the furniture and furnishings and business of a certain rooming house situated at number 2070 East 22d street, Cleveland, Ohio, falsely and fraudulently represented to her that he had the right of possession of said house for 12 years, and that she could occupy said house for said period at a rental of $50 per month.
‘ ‘ That relying on said representations, plaintiff bought said furniture, furnishings and business from said defendant and paid him therefor the sum of $750.
“That the right of occupancy of said house for said period at said rental was of great value, viz: the sum of $450 and said furniture and furnishings and business independent of said right was worth the sum of $300 and no more.
“That said representations so as aforesaid made were false and untrue; said defendant did not have the right of occupancy of said house for said period, but only for the period until September 1, 1907, of which fact this plaintiff had no knowledge, and at said time plaintiff was compelled to move out of said house by the owner thereof.
“That but for said false and fraudulent representations plaintiff would not have bought said furniture and furnishings and business.
“Plaintiff says that by reason of the premises she has been damaged in the sum of $450, for which amount, prays she for judgment with interest from said February 14, 1907.”

From the testimony of plaintiff below we learn that the defendant below said to her “that he had a lease for twelve years, and that he wanted the barn and yard in the rear for his horses and vans; and that he had a lease for twelve years and didn’t care to sublet it to us, because he wanted the barn and yard, and we could have it for that length of time, twelve years, if we wanted it. ’ ’

Upon this state of facts it is perfectly clear that she had no cause of action. Whether Wiriek. had or had not a lease for twelve years upon the premises was of no consequence whatever, so long as he entered into no agreement to assign or sublet to her, or to give her any right of occupancy in the premises enforceable under the statute of frauds.

Upon the undisputed facts, therefore, the judgment is contrary to law and should have been for the plaintiff in error instead of for the defendant in error.

The judgment below is reversed, and proceeding here to render the judgment which should have been rendered in the court of common pleas, we enter final judgment for plaintiff in error.

Marvin and Winch, JJ., concur.


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    EXECUTORS AND ADMINISTRATORS
    [Cuyahoga (8th) Circuit Court,
    November 1, 1909.]
    Henry, Marvin and Winch, JJ.
    James R. Sprankle, Jr., et al. v. Arthur Odell, Admr.
    Heir as Administrator Securing Low Appraisal to Evade Taxes Estopped to Complain of Widow’s Election to Take Property.
    When one who was both administrator and heir has instructed the appraisers to return a low appraisal of the property of the estate in order to minimize taxes thereon, he can not later, after the widow has elected to take a large portion of the property at its appraised value, ask for a reappraisal.
    Error.

      James J. Hogan and Goulder, Holding <& Hasten, for plaintiffs in error.

      Wallace I. Knight, S. A. Schwab, W. C. Ong and E. J. Blandin, for defendant in error.
   HENRY, J.

This proceeding in error is prosecuted to reverse the judgment of the court of common pleas upon an appeal from the order of the probate court in the matter of the estate of James R. Sprankle, deceased, overruling the motion of James R. Sprankle, Jr., for a reappraisal. Upon the appeal the court of common pleas made the same order, and it is to reverse this order that the proceeding here is prosecutd.

The facts are, that James R. Sprankle, Jr., was originally the administrator of his fathers estate, and as such, by agreement with his mother, widow of the decedent, he instructed the appraisers to make a low appraisal of the property, in order to minimize the taxes levied thereon. After the appraisal was thus effected the widow took a large part of the property at the appraised value, and in the ensuing controversy, James R. Sprankle, Jr., was removed as administrator. He thereupon undertook to have a reappraisal ordered upon the ground that the original appraisal was admittedly too low. The probate and common pleas courts refused to order such reappraisal upon the ground that he had himself been responsible for the very thing of which he complained. In this view we concur. But James R. Sprankle, Jr., appears before us in another capacity, to wit, apparently as one^ of the coadministrators of the estate of his sister who, it is suggested, has died since the trial in the court of common pleas, and in this capacity, he and his coadministrator seek the relief which he personally is denied. It is urged that the sister is in no way estopped, inásmuch as she had nothing to do with procuring the low appraisement complained of. There are, however, no allegations in the petition in error with regard to her death or the appointment or qualification of the administrators of her estate. These are issuable facts and should have been alleged instead of being left to mere inference from the caption of the petition in error. So far as these parties are concerned, therefore, the petition in error not having been filed by any party to the record below or by anyone who is expressly alleged to be a successor in interest to any such party, must be stricken from the files. We should, however, be inclined to allow an amendment of the petition in error upon proper application, if it appeared to us that such amendment could be made in furtherance of justice, but the record discloses that the exceptions which were the subject-matter of the trial in the probate court and court of common pleas, were those of James R. Sprankle, Jr., personally and of no one else. It was not until after the expiration of the statutory period of limitation within which such exceptions by any person interested might have been filed, that the sister undertook by .application to adopt and make her own, the exceptions which James R. Sprankle, Jr., had filed. It is apparent, therefore, that it would subserve no good purpose to permit such amendments to the petition in error to be made as would suffice to bring the administrators before this court as administrators of her estate and as parties to the proceeding.

With regard to James R. Sprankle, Jr., who is the sole remaining plaintiff in error in this proceeding, the judgment below is affirmed. As to the other parties, plaintiffs in error, the petition is dismissed.

Marvin and Winch, JJ., concur.


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    RAILROADS
    [Cuyahoga (8th) Circuit Court,
    June 18, 1909.]
    Henry, Marvin and Winch, JJ.
    Richard Palmer, Admr. v. Erie Ry.
    Failure of Electric Gong to Work at Railway Crossing Raises no Presumption of Negligence.
    The mere fact that an electric gong at a railroad crossing fails to ring raises no presumption of negligence on the part of the railroad company.
    Error.

      W. C. Ong, for plaintiff in error.

      Cushing & Siddall, for defendant in error.
   HENRY, J.

We know of no rule to warrant our holding that when an automatic gong at a grade crossing fails to work, the burden is upon the railroad company maintaining such gong to show that such failure was not due to its negligence. We know of no decision which, either squarely or by reasonable analogy, makes such failure prima facie evidence of the railroads negligence. On the contrary there are many imaginable things which, without any fault on the part of the railroad company, might reasonably have interrupted the due operation of this electric gong. And the ordinary rule is that the burden is upon the plaintiff in negligence cases. No reason appears in this case to except it from the operation of that rule.

In this case, also, the decedent manifestly did not look. He neither stopped nor turned his head. And if he listened, it was obviously for the customary sound of the gong and not for the noise of a train. If he had stopped and looked, or listened, at the point where looking and listening could have profited him, he must necessarily have seen and heard the train and been safe. If he relied upon the gong, which failed to ring, he was no more excusable than if he had omitted to take due precautions for his own safety in reliance upon the performance of the railroad’s statutory duty to sound the whistle and bell of its locomotive when approaching a highway crossing. Contributory negligence by the plaintiff in such cases is not neutralized or offset by similar conduct of the defendant.

The judgment is affirmed.

Marvin and Winch, JJ., concur.


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    CRIMINAL LAW — INTOXICATING LIQUORS
    [Cuyahoga (8th) Circuit Court,
    June 14, 1909.]
    Henry, Marvin and Winch, JJ.
    Joseph Nickels v. State.
    1. Burden of Proof in Criminal Prosecutions on State,
    Upon the trial of criminal causes the law presumes the party charged with crime to be innocent, and the burden is on the prosecutor, unless a different rule has been provided by statute.
    2. Burden of Proof in Liquor Prosecutions Changed by Statute.
    Where the legislature has provided, as in Sec. 4364-20y R. S. (Sec. 6102 G. C.), that the keeping of intoxicating liquors in dry territory in any place except a drug store or private residence shall be prima facie evidence that such liquors are kept for unlawful sale, furnishing or giving away, the burden of proof is changed and a conviction will be sustained upon evidence of this fact alone.
    Error.

      Tanney Barber, for plaintiff in error.

      H. W. Ward, for defendant in error.
   HENRY, J.

The plaintiff in error was convicted before the mayor of the village of Olmsted Falls, Ohio, of a violation of Section 4364-206 of the Revised Statutes of Ohio. The information contained three counts, the first charging that Nicbles “did unlawfully keep a place where intoxicating liquors were then and there kept for sale as a beverage. ’ ’

The second count repeats by reference, the averments of the first count and adds a charge of unlawfully giving away intoxicating liquors as a beverage.

The third count repeats by reference the averments of the first two counts and adds that Nickels “furnished as a beverage and otherwise dealt in intoxicating liquors as a beverage. ’

The transcript shows that “the court after considering the testimony given herein finds the defendant guilty,” and later that, “the court pronounced sentence on defendant, as follows: A fine of one hundred and twenty-five dollars and costs in this action, and defendant to stand committed until paid.”

The court of common pleas affirmed this judgment, and petition in error is filed by the said Nickels in this court.

Error is assigned upon the overruling by the trial court of a motion to quash, a demurrer, a plea in bar and a motion to require the state to elect upon which count it would rely. Upon the last motion the rule is perfectly well settled in this state that a motion to elect is addressed to the sound discretion of the court, and even if the last two counts be deemed bad for duplicity, a general verdict or finding of guilty, such as was rendered here, is supported by the first count, which is apparently free from objection. The offense therein described is charged to have been committed “on or about October 31, 1908,” and the plea in bar alleges an arraignment upon a charge that “from June 1, 1908, until October 30, 1908, in said village of Olmsted Falls, one Joseph Nickels then and there being, did unlawfully keep a place where intoxicating liquors were then, and there kept as a beverage,” etc. The evidence in the present record shows that the offense was committed, if at all, upon October 31, 1908. It is thus evident that there was not any prejudicial error warranting a reversal of the judgment in this case by reason of any of the rulings of the trial court above referred to.

Error is further assigned upon the overruling of the motion for a new trial, upon the ground that the conviction is unsupported by the evidence, and it is claimed that the evidence adduced on behalf of the state affords, at most, only a prima facie case under Sec. 4364-30y R. S. (Sec. 6102 G. C.), which makes “the keeping of intoxicating liquors in any room, or building or any other place, except in a regular drug store or in a bona fide private residence * * * prima facie evidence that such liquors are kept for unlawful sale, furnishing or giving away, provided such place is situated in territory in which the selling, furnishing or giving away of intoxicating liquor as a beverage, is prohibited. ’ ’

It is urged that a prima facie case made by virtue of this statute alone is an insufficient basis on which we find beyond a reasonable doubt that this defendant is guilty.

In Fuller v State, 12 Ohio St., 433, the first paragraph of the syllabus is:

“Upon the trial of all criminal cases the laws presumes the party charged with crime to be innocent, and the burden of proof is upon the prosecutor, unless a different rule has been provided by statute. ’ ’

In this case a different rule has been provided by statute, and the evidence found in the bill of exceptions as we have examined it, is sufficient in our judgment to warrant this conviction.

Irregularities in the method of introducing the evidence on the part of the state; in the rulings of the trial court upon objections by the accused thereto, are further complained of, but we are mindful of the rule that the proceedings of magistrate’s courts in causes wherein they have jurisdiction are to be viewed indulgently, and we fail to find anything in this record prejudicial to the rights of the accused to warrant the reversal of the judgment below, and the same is therefore affirmed.

Marvin and Winch, JJ., concur.


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    CONTRACTS — JUDGMENTS—PARTIES
    [Cuyahoga (8th) Circuit Court,
    June 7, 1909.]
    Henry, Marvin and Winch, JJ.
    Perry L. Hobbs v. John Thompson.
    1. Judgment Rendered against One or More Defendants Sued on Joint Contract.
    When two or more are sued upon an alleged joint contract, judgment may be rendered against one or more of the several defendants.
    2. Judgment against Answering Defendant when Two or More Sued, Erroneous.
    When two are sued jointly and one is in default for answer, as between the two defendants it is error to render, judgment against the answering defendant alone.
    Error.

      Henderson, Quail <& Siddall, for plaintiff in error.

      M. D. & II. II. Johnson, for defendant in error.
   HENRY, J.

Below Thompson sued Hobbs and Tucker jointly for pipe, etc., alleged to have been put in for them at the Union Salt Works. The completed work was a device to purify brine and obtain a precipitate of chalk. Plaintiff in error Hobbs is a distinguished chemist, who had seen the process in use abroad and had communicated it to his friend Tucker, when the latter was in need, to enable him to undertake a profitable enterprise hitherto unused in this country. Tucker procured Thompson to do the work, but prevailed upon Hobbs to see Thompson and to do the supervision of the construction. It appears to have been Hobbs’ intention to donate the idea of the enterprise, but Thompson understood that Hobbs was the proprietor and that he was “going to give Mr. Tucker an interest in it.” This notion was derived from or confirmed by a conversation which Thompson and Hobbs had while they were riding out to the scene of the work in an automobile from which we think the jury might not unreasonably have inferred that Hobbs authorized Thompson to charge the cost of the construction to him alone or to him and Tucker jointly. And this disposes also of the questions raised as to the admissibility of evidence.

Tucker interposed no answer and made no defense to the action, and no judgment was rendered against him, although counsel for Hobbs repeatedly sought to have plaintiff declare whether he still maintained the defendants to be jointly liable, and, if not, which defendant he would pursue. Under the charge the jury may have found their verdict for plaintiff against Hobbs either upon the theory of a contract between Hobbs and Thompson or upon the theory of an actual or apparent agency of Tucker for Hobbs. It is complained that the court erred in charging according to this theory, thus permitting the jury to render a verdict against Hobbs individually when the petition alleged only a joint liability, and inferentially that it erred also in not rendering a joint judgment against both defendants, if against either — Tucker being in default for answer and a verdict having been found against Hobbs.

In Roby v. Rainsberger, 27 Ohio St., 674, it was held that, “in an action on an alleged joint contract, judgment may be rendered under Sec. 371 of the code, against one or more of several defendants, when it turns out upon the trial that only one or more of them is liable on the contract.”

"Without quoting^ at length from the opinion in this case which is illuminating upon the point here involved, we remark that this case appears to us to be decisive of the point now made. As between Thompson and Hobbs, there is nothing in the record to disentitle the former to the fruits of the judgment which he has obtained. As between Hobbs and Tucker the judgment should have been against both. Tucker is not a party to this proceeding in error because no judgment against him was rendered below. We can not therefore so modify the judgment below as to make it run against him as well as against Hobbs.

Without vacating the verdict of the jury, we reverse the judgment of the court below, and because it is not the judgment which the case required, and is therefore contrary to law; and we remand the cause with instructions to the court of common pleas to enter judgment against both defendants.

Marvin and Winch, JJ., concur.