author: Montgomery, J. By the Court.

text:
    In re Trust of Stuckey: Jacob, Appellant, v. Richmond, Trustee, et al., Appellees.
    (No. 159
    — Decided April 28, 1947.)

      Mr. Alex S. Dornbey, for appellant.

      Mr. Fxa/nk J. Murray and Mr. Deane M. Richmond, for appellees.
   Montgomery, J.

Richard C. Stuckey, Sr., a resident •of the state of Illinois, executed his last will and testament on the 28th day of October 1904. We are concerned only with one portion of item 5 of that will And with item 7 thereof.

Item 5 recites, in part:

“I further will and devise to said Eugene EL Stuckey In trust for the use of my said grandchildren during their minority or until they each arrive at the .age of •eighteen years, the entire Timmons farm that I own in Jefferson township, Madison county, state of Ohio, being about three hundred eighty-seven (387); also farm being fully described in deed from Henry Alder to me dated April 15th, 1871, recorded April 18th, 1871 in volume^ 35 of deeds, page 33, of Madison county, Ohio.

“The share of each of my said three grandchildren, Edna, Jessie and Ethel, as above bequeathed, in the Timmons farm, upon such legatee obtaining the age of eighteen years, shall then go to the benefit and use of my own son Dick or Richard Stuckey, Jr., during his natural life. Upon the death of my son Dick or Richard Stuckey, Jr., and the attaining of the age of eighteen years by my said grandchildren, Edna, Jessie and Ethel, the said farm shall be equally divided among the children of all my sons. In case my son Richard Stuckey, Jr., dies prior to the time my granddaughter Ethel Stuckey shall have reached the age of eighteen years the said Timmons farm shall then vest in fee in the survivor or surviving child or children of said Richard Stuckey, Jr., or their issue if they have any, it being my express desire that no part of my estate shall go to my daughter-in-law Gektrude Stpekey by inheritance of said children or otherwise. ’ ’

Item 7 is in the following language:

(, “I will, order and direct that said Eugene H. Stuckey, trustee, shall permit either of my legatees, being of lawful age, to use, manage and control the property hereby devised to such heir during the period named in the trust so long as he or she shall keep the same in repair and pay all taxes and assessments thereon, and in case any legatee fails to keep said property in repair or commits waste thereon, said Eugene H. Stuckey shall take possession of the same and out of the proceeds thereof make all needed repairs, until such legatee shall satisfy the said trustee that he will keep said property repaired or shall not commit waste, by bond or otherwise, the trustee taking such property from such legatee, shall hold and control the same for the use of the legatee. These last provisions do not refer or pertain to any but life estates.”

Richard C. Stuckey, Sr., died in the year 1910. Jessie and Ethel Stuckey each died before reaching the age of 18 years. Edna Stuckey died at the age of 33 years, leaving three sons surviving her. Richard 0. Stuckey, Jr., is still living at the age of 75 years, and, except for what he might receive under and by virtue of the provisions of this will and the orders of the court made pursuant thereto, would be without any resources whatever and, in fact, indigent. He came to Ohio in 1908, lived on this farm until after his father’s death, then' removed therefrom, returned to the farm for the years 1928 and 1929, again left it, and, except for the periods when he was upon the farm,- has lived in Columbus, Ohio.

Eugene H. Stuckey qualified^ and served as trustee under this will until his death. . Since that death there have been four successive trustees. With only the latter two of these are we concerned. One Stephen Mavis was appointed trustee about the year 1933 and served until 1941. At that time, Mavis’ resignation being accepted, Deane M. Richmond was appointed, and he qualified, as trustee and is still serving as such. .

In the year 1937, a deed was procured from Richard C. Stuckey, Jr., for his interest in this land, the grantees therein being nephews and nieces of his and the surviving children of a deceased brother, living in the state of Illinois. Richard C. Stuckey, Jr., was induced to execute this deed and, further, to make an assignment of any interest he might have in this-trust in consideration of the payment to him of. $500,. hut the record shows that this $500 was not paid by the grantees, but was paid by the then trustee, Mavis,, out of the income from this farm.then in his possession..

Richmond, sometime after his appointment, brought suit, as trustee, in the Court of Common Pleas of' Madison county, Ohio, to set aside this deed on the-ground of fraud, alleging that the, said Richard, C. Stuckey, Jr., lacked the capacity to intelligently inquire into and understand his affairs; that he was in-dire need of money and in bad physical condition; that he executed these instruments upon the representation of the agents and attorneys for the grantees-that there was no mon'ey in the fund, and that, unless he did this, he would never receive a cent from the-farm; and that all these representations were in fact false, because under this will Richard C. Stuckey, Jr.,, was a beneficiary, was entitled to receive the net income and had,no title to the trust property, and there-was at that time in the hands of the trustee more than $500 which should have been payable to sucli beneficiary.

That case was tried in the Court of Common Pleas-of Madison county, but was not decided, as counsel stated, because of the ill health of the then common-pleas judge, who, subsequently thereto, died.

On September 16, 1946, these seven nephews and' nieces, residents of Illinois, claiming to be the owners of the life estate of Richard Stuckey, Jr., and also the-owners of the estate in remainder, made application to the Probate Court for an order terminating the-trust, on the ground that the estates had merged; that Richard Stuckey, Jr., had parted with his interest p that waste had been committed upon the land; and that,. by the provisions of the will of the testator, the trust had ceased. The application also sought the removal •of Richmond as trustee on the ground that he was representing conflicting interests and was not acting •impartially in the administration of -the trust.

Thereafter, as shown by the record, these seven persons executed and delivered a deed for their entire interest in this property to the appellant, John G. Jacob, who was substituted as applicant. The record shows that he is a real estate broker in the city of Columbus and is a business associate and a brother-in-law of his counsel in this action who is the same counsel who procured the deed and assignment from Richard C. Stuckey, Jr., and represented the grantees in that deed, in filing the original application in the Probate Court. The record shows further that the appellant procured the interests of these alleged remaindermen at what he, at least, considered a great bargain, because he paid less than 50 per cent of the .amount at which he later offered this farm for sale. After the hearing of some of the evidence in the Probate Court, and while the case was still pending therein, the action in the Court of Common Pleas was dismissed, and the trustee filed in the Probate Court in this action an answer in which he sought the setting asid'e of this deed, alleging substantially the same .grounds as in the action in the Common Pleas Court, -and assigning as a reason for the filing of the answer the necessity of a determination of the validity of the •deed in order properly to administer the trust.

The Probate Court made a finding and held against the appellant on all grounds alleged in the original application by his grantors. Prom thát judgment an ■appeal was perfected to this court, and the cause was ■submitted upon the pleadings in -the Probate" Court, a transcript of the evidence taken therein, and a transcript of all the evidenec taken in the Common Pleas Court, which was submitted in the lower court as an exhibit. The questions raised in this court are essentially factual. No difficult legal propositions are involved, and there is no need of a discussion of applicable authorities. There are seven assignments of error, to wit':

First, that the Probate Court had no jurisdiction to grant such relief to the trustee; second, that there was error in setting aside the deed; third, that.there was error in continuing the trust; fourth, that there was error in ordering a continuation of the payments of $100 per month to Richard C. Stuckey, Jr. (in passing, it should be observed that there was a suspension of these payments for a period of years, but that even after the execution.of these documents by Richard C. Stuckey, Jr., with the approval of the attorney for the appellant, the payments were renewed); fifth, that there was error in refusing to remove Richmond as trustee; sixth, in holding that there was no waste committed upon the land; and, seventh, a general charge of bias and prejudice on the part of the trial court and of bad faith on the part of the trustee.

We discuss these several assignments of error briefly.

Section 10501-53, General Code, describes jurisdiction of the Probate Court, specifying thirteen separate situations in which such jurisdiction is granted. The section concludes with the following statement:

“’'The Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless.the power is expressly otherwise limited or denied by statute.”

Of course the Probate Court had full power to order the carrying out of the provisions of this will so far as they affected the property in Madison county. One of the provisions was the maintenance of this trust. In order to carry out the requirements of the trust, if Richard C. Stuckey, Jr., is still a beneficiary thereunder, except for this conveyance, it was essential that the validity of the conveyance be determined when it Vpbs questioned. We hold that the Probate Court was vested with power to hear and determine the question of the validity of this deed and the assignment of funds.

The court’s holding that the conveyance and the assignment were invalid because of fraud being perpetrated is not contrary to the weight of the evidence. There was ample and credible evidence to justify such finding. It is intimated by appellant, in passing, that even if the trustee' were otherwise entitled to such relief, he is barred by the statute of limitations. It is a sufficient answer to this claim to point out that the statute of limitations was not pleaded as a defense, and that, to be available, it must be pleaded.

As to the order of the court continuing the. trust, it seems to us that there can be no question about the propriety of this finding. Item 5 of this will, herein-before quoted specifically provides that upon the last named legatee reaching the age of 18 years, the share of each of them “shall then go to the benefit and use of my son Dick or Richard Stuckey, Jr., during his natural life.”

As stated, the granddaughters are dead. Had they survived they would all long ago have passed the age of 18 years, and their interest as beneficiaries under the trust would have ceased. Such interest did cease, and Richard C. Stuckey, Jr., became, and is, the sole beneficiary.

And, following this conclusion, the fourth assignment of error has- no merit, because, with the funds admittedly in the hands of the trustee, the payments to the beneficiary should be continued, as the' lower court directed.

We fail to find, from a reading of the record, anything which would justify the removal of Richmond as trustee. We find no evidence of any dereliction of duty. We certainly do not find that he is representing conflicting interests. He admits having been retained by one of the grandchildren of Richard C. Stuckey, Jr., to look after such grandchild’s interests, when, and if, they should mature. The trustee stated upon the witness stand, and from the will his statement is obviously correct, that these grandchildren can have no interest so long as Richard C. Stuckey, Jr., lives, or so long as this trust is in effect. There could be nothing inconsistent with the management of the trust during the lifetime of Richard C. Stuckey, Jr., and the representing of a possible heir after termination of the trust.

The. sixth assignment of error, upon which great stress is laid, is that waste had been committed, and. that, by reason of item 7 of the will, the trust should have been terminated and Richard C. Stuckey, Jr., deprived of any interest thereunder. As hereinbefore observed, he is not a life tenant, he is a beneficiary under a trust, the legal title being vestéd in the trustee. There is no evidence that Stuckey, himself, ^committed waste, and the only evidence is that during the two years that he actually was upon the farm he improved it and left it in better condition in every way than he found it.

Nor are we able to conclude th?it the trustee has per"mitted any waste. It is true that the fences, the buildings and the tiling are in bad shape, that there has not been much rotation of crops, that there has been no livestock upon the place, and that it has simply been farmed for what it would pr'oduce, with, however, a good deal of fertilizing being done to the farm and some fences built.

Perhaps the following personal reference will be excused. The writer of this opinion has for years operated two farms. One of 256 acres he has operated in his own right. It is highly cultivated, with buildings and fences in good shape, with an adequate amount of livestock upon the land, and with sufficient equipment to do what is for the best interest of the land. This-farm has always returned a very substantial profit.. The other farm of 199 acres he has operated as guardian of a couple of. minors. That farm was run down,, the fences and buildings in bad shape, no livestock upon the ground, no equipment upon the ground, and no money with which to purchase any of these things. The only alternative was to rent, so as to produce as much as possible. Paying taxes, making the most needed improvements, and finding something for the necessities of his wards were not an easy matter. Naturally, however, he would not construe this situation as constituting waste of the land. And in the instant case it seems that a parallel is afforded by Richmond’s situation.

Coming, finally, to the alleged bias and prejudice, misconduct and double-dealing, suffice it to say we find none of these. The probate judge was pronounced in his views, and, true, he had knowledge of the things which had preceded the trial in that court,' and he may have applied his knowledge of these pre-existing events. No objection was made to his sitting in the case, and, in the absence of a finding that he committed error in any other respect, it would be difficult to charge him with any bias or prejudice. W e cannot, as hereinbefore indicated, find any evidence of bad faith or double-dealing on the part of the trustee.

The judgment of the Probate Court is affirmed.

Judgment affirmed.

Wiseman, P. J., and Nichols, J., concur.

(Decided May 9, 1947.)

On Motion for certification^

By the Court.

The motion to certify the record of this case to the Supreme Court on the ground that the judgment of this court is in conflict with the judgment in .the case of Sherrets, Admx., v. Tuscarawas Savings & Loan Co., 78 Ohio App., 307, 70 N. E. (2d), 127, is overruled. The instant case, as it came before us, was on appeal from the judgment of the Probate Court in a proceeding properly instituted therein' under subdivisions 3 and 4 of Section 10501-53, General Code.

The concluding paragraph of that section is:

■ “The Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute. ’ ’

As stated in our former opinion, the matter properly befóte the Probate Court could not have been disposed of without passing upon the validity of the deed in question. There is no limitation or denial by statute of the power exercised.

Referring to the Sherrets case, we direct attention. to the statement of facts appearing in the opinion, on page.313, to wit:-

“It must be remembered that the entire transaction of which plaintiff complains occurred prior to the death of her decedent. It is not a case of someone withholding an asset of the ■ estate under a claim of gift or ownership from an estate’s personal representative; but a fully executed transaction whereby decedent parted with title and possession in her lifetime. All the administratrix of her estate had was a right of action to recover property or its money value. It is exactly in the same situation as a promissory note due the estate, or an action for personal injury to the decedent’s person or property, or property withheld which could only be recovered by an action in replevin.’-’

And the court, in the Sherrets case, on page 312, cited Borchard on Declaratory Judgments. Borchard’s statement, the generally adopted doctrine relative to declaratory judgments, is that the Declaratory Judgments Act is only a new procedural device or vehicle of relief and is not an expansion of jurisdiction.

Motion overruled.

Wiseman, P. J., Nichols and Montgomery, JJ., concur.

Nichols, J., of the Seventh Appellate District, and Montgomery, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Manigoe et al., Appellees, v. Cason et al., Appellants.
    (No. 4002
    — Decided June 11, 1947.)

      Mr. Walter W. Or elle, Jr., for appellees.

      Mr. James F. Little, for appellants.
   By the Court.

TMs is.an appeal on questions of .law from the Municipal Court of Columbus, which court rendered judgment against the defendants, appellants herein, in a forcible entry and detainer action, and also gave judgment to the plaintiffs, appellees herein, in the amount of $19.20 for rent due.

No record was taken in the. trial court, and there is no bill of exceptions before this court. Hence, no error can be considered by this court unless it be disclosed by the pleadings as a question of law. The question is raised as to whether the petition alleges facts sufficient to constitute a good' cause of action. Such matters may be considered without a bill of exceptions. Insurance Co. v. Brecheisen, 50 Ohio St., 542, 35 N. E., 53; Risk v. Building Assn., 31 Ohio St., 517; Barr v. Meek, 28 O. L. R., 206; 2 Ohio Jurisprudence 431, Section 374.

The petition alleges that plaintiffs are the owners of the premises sought to be vacated; that the defendant Jesse Cason occupies the premises as tenant under an oral rental agreement which provided for a month to month tenancy and the payment of $18 rent per month, payable in advance on the 8th day of each month. The petition alleges further:

“Plaintiffs further say that said defendant, Jesse Cason, has violated a provision, of the rental agreement between the parties by subletting a portion of the premises, and on November 2nd, 1946, he was given a ten-day notice to cure such violation and have the said subtenants move therefrom within such period of time. Plaintiffs further say that the defendant failed and refused to comply with said notice.

“Plaintiffs further say that on November 13, 1946, the defendants were given a three-day notice to vacate said premises because of failure to comply with said ten-day notice, and further the defendant has failed and refused to comply with said notice to move, a copy of which notice was given to the O. P. A. with: in twenty-fonr hours thereafter.”

The petition does not expressly allege that the oral, rental agreement provided against subletting. The petition may have been open to a .motion to make definite and certain. Since no motion was filed the question was waived. In the absence of a bill of exceptions the presumption prevails that there was sufficient evidence to support the judgment of the trial court on this issue.

The petition alleges a rental agreement and a breach thereof by the tenant by subletting. A preliminary notice was given to the tenant to cease the violation of such rental agreement, as required by the Rent Regulation for Housing of the Office of Price Administration,. (See regulation Section 6 (a) (3) of Section 1388.1181. issued under 56 Stats, at L., 23, 765; 58 Stats, at L., 632.) The notice was given on November 2, 1946, and the subtenants were required to vacate-by November 12, 1946. The violation, not being cured, on November 13, 1946, the tenant was served with a notice to leave the premises on or before November 17, 1946. Two questions of law are raised by the service of this notice.

First, it is contended that since ,a monthly term began on November 8, 1946, the tenant could not be required to vacate on a date earlier than the last day of the monthly term, which, began November 8, 1946. The petition alleges that the landlord notified the tenant of his breach of the rental agreement prior to the date on which the new monthly term began and gave written notice that the violation cease. Under such circumstances, a new rental contract for another month, beginning November 8, 1946, did not arise by implication of law. The principle of law which holds that, under a month-to-month tenancy, where the tenant enters upon a new term, with the acquiescence of the landlord, there is implied in law a rental contract for another monthly term on the same terms and conditions which existed for the prior month, binding on the landlord and tenant alike, has no application when the tenant breaches his rental contract. A new tenancy arises only when the facts are such as to show a mutual intention of the landlord and tenant to create it. 24 Ohio Jurisprudence, 1221, Section 473. On this issue the notice was valid.

Second, it is contended that the notice to leave the premises did not comply with the requirements of -Section 6 (d) (1) of the Rent Regulation for Housing of the Office of Price Administration.. (See Section 6 (d) (1) of Section 1388.1181, issued under 56 Stats, at L., 23, 765; 58 Stats, at L., 632.) The notice to vacate was given on November 13, 1946, requiring the tenant to surrender the premises on- or before November 17, 1946. Apparently, the plaintiffs proceeded on the theory that compliance with the requirements of Section 10451, General Code, was sufficient. However, Section 6 (d) (1) of the Rent Regulation for Housing in part provides:

“No tenant shall be removed or evicted from housing accommodations - by court process or otherwise, unless at least ten days (or, where the ground for removal or eviction is nonpayment of rent, the period required by the local law for notice prior to the commencement of an action for removal or eviction in such cases, but in no event less than three days) prior to the time specified for surrender of possession and to 'the commencement of any action for removal or eviction, the landlord has given written notices of the proposed removal or eviction to the tenant and to the area rent office, stating the ground tinder this section upon which such removal or eviction is sought, the facts necessary to establish the existence of such ground, and specifying the time when the tenant is required to surrender possession.”

That section expressly provides that, except for nonpayment of rent, at least ten days prior to the time specified for surrender of possession and to the commencement of an action, the landlord shall give written notice to the tenant of the proposed removal or eviction. That provision of the Rent Regulation supersedes the provisions of Section 10451, General Code.

_ The plaintiffs failed to give a ten-day notice, as required by the regulation.. The preliminary written, notice served on the tenant on November 2, 1946, asking the subtenants to vacate within ten days, cannot operate as, or be construed as, the requisite ten-day eviction notice Required to be given to the tenant under Section 6 (d) (1) of the regulation. The notice given did not conform to the requirments of the law. The notice being illegal the action could not be maintained.

, The judgment of the trial court will be reversed in regard to the first cause of action, which prays for restitution, and will be affirmed in regard to the second cause of action, which prays for judgment for rent due.

Judgment accordingly.

Wiseman, P. J., Miller and Hornbeck, JJ., concur.


author: Skeel, J.

text:
    Aetna Casualty & Surety Co., Appellant, v. The Higbee Co., Appellee.
    (No. 20659
    — Decided October 13, 1947.)

      Messrs. McKechan, Merrick, Arter £ Steivari, for appellant.

      Messrs. Calhoun, McLeod £ Friche, for appellee.
   Skeel, J.

This appeal conies to this court on questions of law from a judgment for the defendant entered in the trial court. Mrs. Edith G-oldsmith delivered her fur coat to The Higbee Company for storage. Several weeks after it received the fur coat from Mrs. Goldsmith, The Higbee Coiapany called her, suggesting that the coat needed repairing. Whereupon Mrs. Goldsmith called at the fur department of the defendant and signed an order for the repairs as follows:

“8/30/44 The Higbee Company.

“Please make necessary repairs as suggested by your fur department, not exceeding $26 in addition to sales tax and the regular storage charges.

“(signed) Mrs. W. A. Goldsmith.”

The contract for storage of the coat between The Higbee Company and Mrs. Goldsmith placed the value of the coat at $100, which amount was determined by her. The contract provided that the charges for the storage should be determined on such valuation and that the company’s liability in case of loss or damage should not be greater than that amount.

The defendant, The Higbee Company, in carrying-out the order of Mrs. Goldsmith to repair and clean the c'oat and without obtaining her consent, delivered the coat to The New Process Pur Cleaning Company to be cleaned, and while in' the cleaning company’s possession it was stolen by armed highwaymen.

The Higbee Company then 'paid Mrs. Goldsmith $100, claiming that to be the limit of its liability under the bailment contract.

The plaintiff, Aetna Casualty & Surety Company, had, prior to the date of the loss, issued a policy of insurance to 'Mrs. Goldsmith, by which the fur coat was insured against loss by theft in the sum of $1,000. The plaintiff, therefore, paid Mrs. Goldsmith $1,000 and received from her a subrogation receipt by which she assigned to plaintiff all her rights against The Higbee Company because of the loss of the fur coat, to the extent of $1,000 and released The Higbee Company from any further claim in excess of that amount.

The trial court found that although the defendant’s conduct in sending the coat to the .cleaning company constituted a conversion, the defendant’s liability was limited by the bailment contract to $100 and having paid that amount to Mrs. Goldsmith had discharged its full duty to her and therefore found for the defendant.

It is the claim of the plaintiff:

1. That the delivery of the coat to The New Process Pur Company constituted conversion.

' .2. That the limitation of value contained in the contract of bailment does not protect the defendant from the full amount of the damages sustained where it is guilty of conversion.

An examination of the record discloses that the defendant did not directly notify Mrs. Goldsmith that it proposed to send the coat to another company for the purpose of having it cleaned. She testified that she presumed defendant would do all the work although nothing was said about it. Quoting from her testimony, she said:

“As far as I know, I gave Higbee’s the job to do and it was Higbee’s job.”

The defendant attempted to offer evidence to establish a “custom” in this community that retail fur dealers and fur departments of department stores' for the most part send out to others the work of cleaning articles made of fur and that such custom is well known to the people of the community so that when a customer contracts with a retail dealer with respect to the repair and cleaning of articles- made of fur, the contract is made with knowledge of such custom and the customer thereby is impliedly presumed to consent to such means of accomplishing the work contracted to be done by the bailee. The court sustained the plaintiff’s objection to such testimony. ■In this the court committed prejudicial error.

The rule to be applied when a custom is claimed as a means of interpreting the contract between a bailor .and a bailee is well stated in 55 American Jurisprudence, 282, Section 21:

“In addition to tbe important requisites heretofore noted, it is almost universally required, in order to hold a person bound by an alleged custom or usage, that he have either actual or implied knowledge of such custom; if it does not appear that he had actual knowledge of it, the custom or usage should be one so general that he will be presumed to have knowledge ■of it.”

Also, in Section 22 on page 283, it is stated:

“The element of knowledge is particularly applicable to usages and customs alleged to create of affect ■contractual obligations. To be thus ' available, the custom or usage must be so well established, notorious, .general, or universal in its application as reasonably to induce the belief of a party’s knowledge of it .and to raise the presumption that he dealt with reference to it, or he must be shown to have had actual knowledge of the practice if nothing is said to the ■contrary. To be regarded as part of a contract, a usage or custom must be actually or constructively known and must be consistent with the contract. e' * * ”

Whether the defendant could sublet to a third person the work of cleaning the fur coat of Mrs. Gold.smith .depends entirely upon the proper interpretation of the contract she made with The Higbee Company, when considered in the light of the surrounding ■circumstances, and the defendant should have been permitted to introduce such evidence as was available .and relevant, tending to establish its contention as to the terms of such bailment contract.

It is also the contention of the defendant that even though actual consent on the part of the bailor that a part of the work called for by the bailment contract ■could be sublet was not established, or that by custom such consent was presumed, the bailee had the legal right to accomplish the purposes stipulated in the contract by any means reasonably suited for. such purposes, and if the bailee desired to do so it could sublet a part of the work, and no liability would result from such subletting even though the article bailed was lost while in the hands of the subcontractor, SO' long as such bailee and the subcontractor used ordinary care, diligence and skill in carrying out the contract,, unless the personal services of the bailee were actuálly contracted for by the bailment agreement. Defendant relies strongly, in attempting to support this-theory, on the cases of Rourke v. Cadillac Automobile Co. of Boston, 268 Mass., 7, 167 N. E., 231, and Travelers Fire Ins. Co. v. Brock & Co., 30 Cal. App. (2d), 112, 85 P. (2d), 905 (retrial, 47 Cal. App. [2d], 387, 118 P. [2d], 25).

In the Rourhe case, the plaintiff left his automobile with the defendant for repairs and painting. The defendant, without notifying the plaintiff, sent the automobile to a paint shop for that part of the work. While there the automobile was damaged by fire. Suit was brought on two causes of action, the first for negligence and the other for conversion. The court held that upon the evidence a verdict for the defendant on the first cause should be sustained but that it was error for the court to direct a verdict for the defendant on the second cause of action because the question of whether there was a conversion was one of fact to be submitted to the jury under proper instructions. In the opinion the court said, at page 9:

“Seemingly, there is no wrongful assumption of control by a bailee to whom articles are sent for repair in placing them with another person to do some or all of the work undertaken by the bailee, Eaton v. Lynde, 15 Mass., 242; Hollingsworth v. Dow, 19 Pick., 228; Leck v. Maestaer, 1 Camp., 138; Story, Bailments (9th Ed.), Section 428, unless expressly or by implication there is an understanding that' the bailee himself should perform all the work.”

In commenting on this case in 28 Michigan Law Review, 196, the author said:

“It is the owner’s right to say who shall paint his vehicle; if the bailee presumes to exercise that right, unless permitted by the bailment contract, it is an exercise of dominion over the property inconsistent 'with the right of the owner, and therefore a conversion. Laverty v. Snethen, 68 N. Y., 522; Staley v. Colony Union Gin Co. (Tex. 1914), 163 S. W., 381; Boldewahn v. Schmidt, 89 Wis., 444, 62 N. W., 177. Defendant would then be liable for damage occasioned to the automobile while iñ possession of S, no matter from what cause and entirely regardless. of the question of negligence. Fryer v. Cooper (S. D. 1928), 220 N. W., 486. As a general rule, it is sufficient if the ‘ bailee does the work by the means of other persons, or subagents, if the work be such as may ordinarily be done by others in an equally satisfactory manner.’ But where the work is such that the talent and skill of the particular bailee may fairly be presumed to be contracted for, ‘he is not allowed to substitute another person, without consent of the bailor.’ Story, Bailments (8th Ed.), Section 428, p. 366; Bussell’s Express v. Bray’s Garage, 94 Conn., 520, 109 A., 722. In the instant case it was in the province of the jury to find, if such were the evidence, that the contract of bailment contemplated performance of all the work by defendant. Goad v. Harris, 207 Ala., 357, 92 So., 546; Dolphin v. Davis, 183 Ill. App., 118. It was improper, therefore, to hold as the lower court did,' that as a matter of law defendant was not guilty of conversion in sending the car to S.”

This case does.not, therefore, fully support the defendant’s theory.

In the case of Dolphin v. Davis, supra, the plaintiff left a fur cape with defendant to have a muff and collarette made therefrom. The defendant sent the cape to another to do the work and while in the posses-ion of such third party it was stolen. . The court in the first paragraph of the syllabus said:

“Where a fur manufacturer is entrusted with a fur cape out of which he agrees to make a müff and collarette but sends the cape to a third person to do the work, and the cape is stolen from the store of such third person, held that the manufacturer was liable for conversion. ”

See, also, Wellberg v. Duluth Auto Supply Co., 146 Minn., 29, 177 N. W., 924.

In bailment contracts there is no legal presumption that the bailee may accomplish the bailment purpose by subletting the work to a third person. It is a' question of fact in each case to determine whether the personal services of the bailee are contracted for, taking into consideration the character and value of the article, whether the work to be accomplished involves the personal satisfaction of the bailor and all of the other surrounding circumstances.

We come now to a determination of whether the limitation of liability provided for by the contract is to be applied where it has been established that the defendant was guilty of conversion.

The limitation of liability as provided for in the contract between Mrs. Goldsmith and The Higbee Company was only for damages that might be sustained in carrying out the terms of the contract and not where the damage claimed is for the value of the property in an action fpr conversion. Conversion is the wrongful appropriation of the goods of another and is accomplished by exercising dominion and authority over the property of another inconsistent with the owner’s rights. Where a bailee converts to his own purposes the property of a bailor, the bailor may treat the bailment contract as terminated and bring action for the value of the goods taken. Such action is not founded upon the provision of the bailment contract but rather is based on the tortious conduct of the defendant and the measure of damages is the value of the goods taken. •

The Supreme Court had this question for consideration in the case of Conkle v. George K. Scott Co., Inc., 147 Ohio St., 487, 72 N. E. (2d), 82. The plaintiff had stored certain household furniture with one Lloyd McMillan who subsequently stored it with the defendant. The plaintiff paid McMillan for the' storage but McMillan failed to pay the defendant. The defendant thereupon without complying with the provisions of Section 8489, General Code, sold the property for $45. Section 8489, General Code, provides for the manner in which a warehouseman may. satisfy his lien for storage, which, among other provisions, requires written notice to the person on whose account the goods are stored. The provisions of the warehouse receipt had a limitation of liability as to each package or piece of property stored. The court held:

“A provision in a warehouseman’s receipt limiting his liability ‘in case of loss or damage’ connotes negligence and is not applicable in an action predicated on intentional, wilful misconduct.”

The court in that case distinguishes the principle of law applicable when the loss or damages is caused by the negligent conduct of the warehouseman (Central Storage Warehouse Co. v. Pickering, 114 Ohio St., 76, 151 N. E., 39) and cases where the warehouseman’s act causing the damage is wrongful. On page 490 of the opinion the court, after quoting from the Pickering case, says:

“It is readily apparent that that pronouncement does not involve a wrong that is inflicted intentionally and wilfully, as in the instant case.”

Conversion is the wrongful assuming of unauthorized control oyer the personal property of another, whether it is done purposely or not. In the case of Gulbrandsen, Admr., v. Chaseburg State Bank, 236 Wis., 391, 295 N. W., 729 (1941), it was held that if a person entrusts another with goods for the accomplishment of a particular purpose and such bailee puts them into the hands of a third person contrary to orders, it is a conversion and wrongful intent is not essential, it being sufficient if the owner has been deprived of his property by the act of another assuming an unauthorized control over it. If a wrongful act is intentionally done by a. bailee with regard to the subject of the bailment, it matters not that it was done with a mistaken notion of the bailee that he was acting within his legal right.

If, therefore, the plaintiff is able to establish by the proper degree of proof that the defendant was guilty of conversion in sending the coat to an outside cleaner where it ivas lost, the $100 limitation of liability would not apply.

One other consideration must be given to the facts as applicable to the limitation of liability contained in the storage contract between The Higbee Company and Mrs. Goldsmith. The storage contract was concluded on May 16, 1944, the coat having been delivered to defendant on May 2, 1944. The contract of storage of May 16, 1944, wherein defendant agreed to store the coat for $2 contained the limitation of liability of $100 for each article stored. Subsequent to the date of this contract, to wit, August 30,1944, for the consideration of not to exceed $26, The Higbee Company agreed to make certain repairs and to clean the coat, which charge was to be in addition “to sales tax and the regular storage charge. ’ ’ The evidence therefore tends to establish that the contract for repairs was a new' contract entered into entirely independent of the contract for storage. It was in the performance of this contract that The Higbee Company delivered the coat to The New Process Pur Cleaning Colnpany from whose possession it was stolen. It seems, therefore, if it be established that the contract for repairs was separate and distinct from the storage contract, that the limitation of liability had no application to such contract for repairs.

The judgment of the trial court is. therefore reversed and the cause is remanded for further proceedings according to law, for the reason that the defendant was prevented from introducing evidence on the' question as to whether there is a custom in this community with regard to the method by which fur dealers accomplish the dry cleaning of customers’ fur garments through the agency of a subcontractor, and if there be such custom, whether it was expressly or impliedly known to the plaintiff’s assignor, and the contract of bailment entered into with regard to such custom; and further for the reason that the question of whether defendant’s conduct in sending Mrs. Goldsmith’s, fur coat to a subcontractor for cleaning constituted a conversion is a question of fact to be determined by a proper consideration of all the competent evidence, and 'if such act constituted a conversion then, as a matter of law, the limitation of liability contained in the bailment contract between Mrs. Goldsmith and The Higbee Company would have no application to the rights of Mrs. Goldsmith or this plaintiff in the instant action. On the other hand, if the right to accomplish the cleaning1 of the fur coat by a subcontractor was within the terms of the contract, then such provision as to limitation of liability would apply.

Por the foregoing reasons the judgment of the trial court is reversed and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Hurd, P. J., and Morgan, J., concur.


text:
    The State, ex rel. Geyer, v. Griffin, Aud.
    (No. 917
    — Decided July 11, 1946.)

      Mr. D. Curtis Reed, for relator.

      Mr. Paul T. Landis, prpseeuting attorney, for respondent.
   By the Court.

TMs is an action in mandamus brought by the state of Ohio on the relation of Albert M. Geyer, against Floyd B. Griffin, auditor of Allen county, Ohio, in which the relator seeks a writ of mandamus commanding the officer to issue, execute and deliver to the relator a warrant upon the treasurer of Allen county, Ohio, for the sum of $945 (less salary deductions required by law) claimed to be due to him for services performed by him as deputy sheriff of the county from January 1,1946, to May 15, 1946, and to continue to issue semi-monthly warrants to the relator, pursuant to the certificates therefor received from the sheriff of the county for compensation to the relator for services performed by him as deputy' sheriff from May 15, 1946.

From the admissions in the pleadings, and the evidence, we find the facts to be as follows:

Floyd B. Griffin is, and was at all the times hereinafter mentioned, the duly elected, qualified and acting-auditor of Allen county, Ohio. <

W. R. Dailey, since January 1, 1945, has been, and is now, the duly elected, qualified and acting sheriff of that county.

On March 8, 1945, and for many years prior thereto, it was qnd had been the custom and practice in Allen county and other counties throughout the state of Ohio for the sheriffs thereof to appoint deputy sheriffs at the request of industrial, manufacturing and other establishments, for the sole purpose of keeping peace and protecting the properties and enterprises of such industrial, manufacturing and other establishments, and for such deputy sheriffs to be paid by the industrial, manufacturing and other establishments and to receive no compensation from the county by the sheriff of which they were so appointed.

It was also the custom and practice in Allen county and other counties of the state of Ohio for the sheriffs of the counties, on their own initiative, to appoint deputy sheriffs in no manner connected with or paid by any industrial, manufacturing or other establishments, who at the time of appointment are not being employed by the sheriff or assigned to any specific or regular duties as such deputy sheriffs, and who are not then certified by the sheriff to the county auditor as deputy sheriffs appointed and employed by him, but who are subject to assignment from time to' time to such duties as the sheriff might require in his behalf.

To distinguish those two classes of deputy sheriffs from those assigned to full-time duty and paid regular compensation from the county treasury, they were and are popularly referred to as “special deputy sheriffs.”

During his incumbency as sheriff, W. R. Dailey has regularly employed no more than four or five deputy sheriffs to perform the duties of his office, but in conformity with the custom and practice the sheriff, during his incumbency, has appointed 93 persons whom he has designated in his orders of appointment, as special deputy sheriffs, the greater number of the appointees coming within the first class and the balance coming within the second class above mentioned.

On or prior to March 8, 1945, the sheriff, W. R. Dailey, duly presented to the honorable Moran B. Jenkins, judge of the Court of Common Pleas of Allen county, a number of appointments made by him in writing, of various persons as special deputy sheriffs of Allen-county, for the approval of the judge. Such -written appointments included both classes above mentioned. Among those presented was that of the relator, Albert M. Geyer, who was appointed by the sheriff of his own initiative, and comes within the second class of appointees as special deputy sheriffs hereinbefore mentioned.

The appointment of the relator reads as follows:

“To The Honorable Judge of the Court of Common Pleas of Allen county:

“I do hereby appoint Albert M. Geyer as special deputy sheriff of Allen county, Ohio. Said appointee is a qualified elector of said county and not a justice of the peace therein.

“I respectfully ask your approval of said appointment.

“W. R. Dailey

“Sheriff of Allen county, Ohio:”

There is a conflict in the testimony as to the. representations, if any, made, by the sheriff to the judge, at the time-approval of the appointment of the relator was under consideration by the judge, the testimony of the judge being to the effect that the sheriff represented to him that the relator was not intended to be and never would be accorded the status of a regular deputy sheriff, which representation the sheriff denies.

Be that as it may, the appointment, as above set forth, was approved in writing by the- judge, without limitation or qualification, in the words and figures following, to wit:

‘ ‘ The above appointment is by me approved this 8th day of March, 1945.

“ Moran B. Jenkins

“ Judge of the Court of Common

“Pleas, Allen county, Ohio.”

Albert M. Geyer then took the following oath of office:

'“I solemnly swear that I will support the Constitution of the United States, and of the state of Ohio, and that I will faithfully discharge, according to law and to the best of my ability, the duties of deputy sheriff to which I have/ been appointed.

£ 1 Albert M. Geyer.

“ Sworn to before me by the said Albert M. Geyer and by him subscribed in my presence, this 8th day of March, 1945.

“C. N. Breese, By Inez Bitler,

“deputy clerk of the Common

“Pleas Court Allen county Ohio.”

On that date the relator duly filed his bond to the state of Ohio, with the clerk of courts of the county, in the penal sum of $1,000, with The Standard Accident Insurance Company as surety thereon, which bond and surety were, on March 8, 1945, approved by the clerk. Such bond recites that Albert M. Geyer is a special deputy sheriff, duly appointed according to law, in Allen county, Ohio; and that the General Code of Ohio in authorizing such an officer to go armed, requires that he shall first give bond to the state of Ohio, and .the bond is conditioned that any person injured by improper use of weapons carried by Albert M. Geyer shall have recourse on the bond, but if the public shall be saved harmless from any improper use of such weapons carried by Albert M. Geyer, then the obligation is to be void.

Onp that date the relator'also filed an additional bond to the state of Ohio, with the sheriff of Allen county, Ohio, in the penal sum of $1,000,' with The Standard Accident Insurance Company as surety thereon. Such bond is conditioned that the relator shall faithfully, diligently and impartially discharge all the duties of his office.

On March 9, 1945, the appointment, approval and oath were filed in the office of the clerk of the Court Of Common Pleas, and by him recorded in journal 44, at page 325.

Thereupon the clerk of the Court of Common Pleas of Allen county issued his certificate of appointment to the relator as deputy sheriff.

The bond for carrying concealed weapons was filed with the clerk and the bond for the faithful performance of the duties of his office was filed with the sheriff.

The relator performed no duties under his appoint- . ment, prior to December 1,1945.'

Beginning December 1, 1945, the sheriff employed the relator and assigned him to full-time service as a deputy sheriff, fixed his compensation therefor at $200 per month, and duly certified the .same to the .respondent • who issued his semi-monthly warrants to the relator on December 15th and 31st, respectively, for the sum of $100 each.

During the month of December 1945, the validity of relator’s appointment as a basis for his employment, as above mentioned, having been questioned, the sheriff, at the suggestion of the prosecuting attorney, presented, in writing, to the common pleas judge an appointment of the relator as a deputy sheriff, and a request that the judge approve the same, which request was refused by the common pleas judge on the ground that the relator had no respect for the courts.

At all times since December 1, 1945, the relator has performed and is continuing to perform full-time duties as a deputy sheriff, and the sheriff has duly certified the relator’s compensation to the respondent for semi-monthly payment. Beginning January 15, 1946, however, the respondent has failed and refused to issue to the relator, wárrant for payment for such services.

The compensation of the relator, at the rate fixed by the sheriff, from January 1, 1946, to May 15, 1946, amounts to the sum of $945, no part of which has been-paid.

There is money in the hands of the treasurer of Allen county to the credit of the fund from which such payment may be made, which may be used for the payment of relator’s compensation in case he is entitled thereto.

The question presented by the pleadings and the evidence is whether the appointment of the relator as a “special deputy sheriff” of Allen county, Ohio, and the approval thereof by the judge of the Common Pleas Court of the county, and the relator- taking the oath of office and having his appointment and approval thereof entered upon the journal of the court, and giving bond as aforesaid, qualified relator for full-time employment as a deputy sheriff of the county.

In order to fully understand the statutory provisions relating to the question it is essential that we first consider the applicable rules of the common law.

The office of undersheriff or' deputy sheriff is a common-law office; and that is the rule unless a change is effected by the Constitution or statute law of the state. In'the most ancient times of the English common law, the sheriff had his undersheriff, and such deputy, when appointed, was vested with authority to perform every ministerial act that the principal sheriff could perform. Under modern jurisprudence the status of the deputy is in many respects the same. He acts for the sheriff in his name and stead. He i& the sheriff’s agent and as such agent he may do any ministerial act that his principal may do. He holds an appointment as distinguished from an employment. In the absence of any statutory restriction, the sheriff has full power to appoint his deputy, and he may clothe him with his ministerial duties as effectually as he could constitute him his agent to attend to private business for him as an individual. 47 American Jurisprudence, 929, 930, Sheriffs, Police and Constables, Section 154.

To assist him in the discharge of his various duties, a sheriff may appoint an undersheriff, and as many general or special deputies as the public service may require, who may discharge all the ordinary ministerial duties of'the office, such as the return and service of process and the like. All acts df the undersheriff or of the deputies are done in the name of the sheriff, who is responsible for them, although such acts would amount to a trespass or an extortion on the part of the officer; for which reason he usually takes bond's from his subordinates for the faithful performance of their duties. Cro. Eliz. 294; Dougl. 40. See 3 Bouvier’s Law Dictionary, Rawle’s Third Revision, 3059.

There are only five sections’ of the General Code in any way reflecting on the question presented in this case. These are Sections 2830 and 2831, General Code, relating to the appointment of deputy sheriffs and the responsibility of the sheriff for the acts of his deputies; Section 9, General Code, relating to the powers and terms of office of deputies generally and the responsibility of the principal for the acts of his deputies; Section 2981, General Code, relating to the appointment and employment of the deputies by county officials, the compensation of such deputies and the giving of bond by such deputies for the faithful performance of their duties; and Section 12819, General Code, prescribing, among other things, that it shall be lawful for deputies * * * to go armed if they give bond to the state of Ohio, to be approved by the clerk of the Common Pleas Court,’ in the sum of $1,000, conditioned to save the public harmless by reason of' any unlawful use of such weapons carried by them, and that any person injured by such improper use may have recourse on the bond.

The first two sections mentioned are as follows :

“Sec. 2830. The sheriff may appoint in writing one or more deputies. If such appointment is approved by a judge of the Court of Common Pleas of the subdivision in which the county of the sheriff is situated, such approval at the time it is made, shall be indorsed on such writing by the judge. Thereupon such writing and indorsement shall be filed by the sheriff with the clerk of his comity, who shall duly enter it upon the journal of .such court. The clerk’s fees therefor shall be paid by the sheriff. Each deputy so appointed shall be a qualified elector of such county. No justice of the peace or mayor shall be appointed such deputy.” •

“See. 2831. The sheriff shall be responsible for neglect of duty or misconduct in office of each of his deputies.”

It will be noted from a comparison of those sections with the common-law rules above mentioned, that those sections amount simply to a restatement of the common-law rules with reference to the appointment of deputies by sheriffs, and the responsibility of the appointing officer for the acts of his deputies, except that such appointments must be in writing and are made subject to the approval of the common pleas judge whose approval must be indorsed in writing on such appointment, and the written appointment and indorsement thereon are required to be filed by the sheriff with the clerk of courts and entered upon the journal of such court. The. appointments are subject to the further condition that each deputy so appointed shall be a qualified elector of the county for which he is appointed, and no justice of the peace or mayor shall be appointed such deputy.

The third and fourth sections of the General Code, above mentioned, are as follows:

“Sec. 9. A deputy, when duly qualified, may perform all and singular the duties of his principal. A deputy or clerk, appointed in pursuance of law, shall hold the appointment only during the pleasure of the officer appointing him. The principal may take from his deputy or clerk a bond, with sureties, conditioned for the faithful performance of the duties of the appointment. In all cases the. principal shall be answerable for the neglect or misconduct in office of his deputy or clerk. ’ ’

“Sec. 2981. Such officers may appoint and employ necessary deputies, assistants, clerks, bookkeepers or other employees for their respective offices, fix their compensation, and discharge them, and shall file with the county auditor certificates of such action. Such compensation shall not exceed in the aggregate for each office the amount fixed by the commissioners for such officer. When so fixed, the compensation of each-duly appointed or employed deputy, assistant, bookkeeper, clerk and other employee shall be paid semimonthly from the county treasury, upon the warrant of the county auditor. Each of such officers may ■ require such of his employees as he deems proper to give-bond to the state in an amount to be fixed by such officer with sureties approved by him, conditioned for the-faithful performance of their official duties. Such bond with the approval of such officer, indorsed thereon, shall be deposited with the county treasurer and kept in his office. ’ ’

It will be noted that the provisions of Section 9,, General Code, so far as they apply to deputy sheriffs,, constitute simply a restatement of the common-law with reference to the powers an! terms of office of such, deputies, the responsibility of the appointing officer for their acts, and the right of the appointing officer to take from such deputies a bond for the faithful performance of their duties.

Section 2981, General Code, was part of the Act of March 22, 1906 (98 Ohio Laws, 90), fixing the salaries of county officers and abolishing the so-called “feo system. ’ ’

It will be noted that it prescribes that county officers may appoint and employ necessary deputies, fix their compensation, and discharge them; and provides further for the certification of such action to the county auditor; and that such compensation shall not exceed in the aggregate for each office the amount -fixed by the commissioners for such office. It provides further for the method of payment of such deputies, and the giving of bond by such deputies if required by the appointing officer.

We have already set forth the applicable provisions -of Section 12819, General Code, which are self-explanatory.

It will be noted that none of the General Code sections above mentioned contains any provisions as to the appointment or employment of “special deputies” or “special deputy sheriffs.” Furthermore, there is no statutory definition of “special deputy” or “special ■deputy sheriff.” However, it will be noted that under the common law the sheriff had the right to appoint an undersheriff and as many general or special deputies to assist him in the discharge of his various ■ duties as the public service may require, and that such ■ deputies act for the sheriff in his name and stead and are the sheriff’s agents and as such agents may do any ministerial act that the sheriff may do.

It will be noted that there is no statutory restriction upon the right of the sheriff to appoint special and .general deputies except that such appointments must be approved by the common pleas judge of the county of which the sheriff is an officer. In the absence of such 'statutory restriction the common law prevails and the sheriff has the authority to appoint both general and special deputies.

The time and extent of the exercise of the authority of the sheriff by such special deputy is a matter solely for the determination of the sheriff, as the deputy acts as his agent. A deputy sheriff may be special in the sense that he is authorized to perform only part of the duties of the sheriff, or may be special in the sense that he is appointed by the sheriff without being-assigned to perform any duties of the sheriff but being subject to assignment to duty by the sheriff from time to time as the sheriff in his discretion may determine. In either event he may receive compensation from the county only when he- is employed by the .sheriff and his compensation fixed by the sheriff and the sheriff certifies his action in this respect to the county auditor, as prescribed by Section 2981, General Code.

A sheriff being a public officer is presumed to act in good faith and within the scope of his authority. Accordingly, his appointment of deputies who are not then assigned to duty by him is presumed to be done for the purpose of providing a reserve of persons qualified as deputy sheriffs whom he can employ as and when he deems their employment necessary or advisable to perform any part of the duties of his office.

A sheriff is vested with absolute discretion to determine what deputies shall be employed, the length of their employment, and the duties of his office to be performed by them, and subject to the statutory restriction as to the aggregate of compensation to be paid for his office, to fix the compensation of such deputies. As the sheriff is vested with this discretion, the common pleas judge was without authority to place any limitation on the' duties to be performed by the relator as special deputy sheriff and consequently any representations made by the sheriff to the common pleas judge as to any limitation on relator’s employment were immaterial.

For the reasons mentioned, the appointment of the relator as a special deputy sheriff and the approval thereof by the common pleas judge, and relator qualifying for such office by taking the oath of office and giving bond in conformity with the statutory requirements, constituted relator a lawful (de jure) deputy sheriff employable as the sheriff saw fit. Relator’s subsequent employment and the fixing of his compensation by the sheriff and the certification of his action by the sheriff to the county auditor entitled relator to payment from the county treasury for the services rendered by him, at the rate fixed by the sheriff.

The writ will, therefore, be allowed as prayed for in relator’s petition, at the costs of the county.

Writ allowed.

Middleton, P. J., Jackson and Guernsey, JJ.', con•eur.


text:
    Tickel et al., Appellees, v. Shock et al., Appellants.
    (No. 1909
    — Decided January 24, 1947.)

      Mr. George F. Holland, for appellees.

      Mr. Julius Herchig and Mr. Irvin Carl Delscamp, for appellants.
   By the Court.

This is an appeal on questions of law and fact from the Court of Common Pleas of Montgomery county. The plaintiffs, appellees herein, are seeking a décree of specific performance whereby fhe defendants, appellants herein, are required to deed to the plaintiffs a parcel of land consisting of 15 acres located on the Germantown pike southwest of Dayton, Ohio.

The petition is based on an alleged oral contract entered into by the plaintiffs and the defendant,' Mae F. Shock, a duly authorized agent of the defendant, Ross F. Shock, whereby the plaintiffs agreed to purchasé a tract of land consisting, of 15 acres with a frontage on the Germantown pike, now known as state highway No. 4, of 784 feet, for the snm of $7,300. -The sum of $100 is alleged to have been paid on the purchase price and the balance was to be paid upon the delivery of a general warranty deed. Plaintiffs allege that they have tendered the balance of $7,200 and the •defendants have refused to deliver the deed. «

The petition alleges further that the defendants have delivered possession of the same premises to the plaintiffs under the contract and that they have continued and are still in possession pf the same. The defendants deny generally all the allegations contained in the plaintiffs’ petition.

The record in this case discloses that the defendant, Ross P. Shock, is the owner of a tract of land situated in Montgomery county and fronting upon -German-town pike. That land had been purchased by the defendant, Ross P. Shock, from his grandfather’s estate. Mae P. Shock, one of the two other defendants, is the mother of Ross P. Shock, and was one of the heirs from whom the farm was purchased. Dorothy Shock, the other defendant, is thie wife of Ross P. Shock.

Before the purchase was made by defendant Ross P. Shock, a survey was made of the farm by Glenn Murr, a licensed surveyor, which survey was completed in the year 1944. After purchasing the farm, the defendant Ross P. Shock retained Glenn Murr for the purpose of subdividing this property into lots containing two to three acres of land. After the subdividing was done there remained approximately 20 acres which were not suitable fon subdividing. The tract contained the house and other "buildings and was commonly referred to as the “homestead.” It was from that tract of land that the defendants sold the 15 acres to the plaintiffs.

We find from the evidence that Mae F. Shock was acting as the duly authorized agent of the defendant Ross P. Shock. After several conferences with Mae P. Shock, on July 17, 1945, an agreement was entered into between Mae P. Shock and the plaintiffs for the purchase of 15 acres for the sum of $7,300, the sum of $100 being paid in cash and for which the plaintiffs were given a receipt which stated that it was for down payment on the Fryer farm consisting of 15 acres. On or about the 28th day of July, 1945, the plaintiffs moved into the premises and are still in possession. On August 6, 1945, a dispute arose between the parties as to the boundary lines of the 15 acres, the plaintiffs claiming that they were to have a frontage of 784 feet on Germantown pike, and the defendants contending that they were to receive only 605 feet. The testimony discloses that the frontage was discussed by the parties and the trial court found the 784 feet to be correct. Were this the only dispute with reference to the boundaries of the 15 acres the plaintiffs would be entitled to a decree.

We find from the evidence that a part of the remaining boundary line was not agreed upon by the parties. The evidence discloses that Mrs. Shock showed the plaintiffs a map of the farm and that she traced its boundaries from it with ,the plaintiffs. Two maps have been offered in evidence as being.the ones she used. The one offered by the plaintiffs and known as plaintiffs’ exhibit D, is a blueprint on which certain lead pencil markings have been added. That map was found in the possession of Glenn Murr, the surveyor, who testified that it was in his possession at all times; that it was being used by him as a work sheet for the purpose of completing the survey and therefore was not in Mrs. Shock’s possession on July 17. The other map offered is known as defendants’ exhibit No. 2 and it ¡shows only the boundaries of the 20-aere tract.

After considering all tlie evidence, we are of the opinion that the latter is the map used by Mrs. Shock in describing to the plaintiffs the boundary line of the farm. The testimony discloses that a small creek runs from the Germantown pike in a southeasterly direction through this farm. The plaintiffs were to receive some land to the east of this creek, but what those boundaries were was not definite and could not be ascertained from the map shown to the plaintiffs.

On cross-examination Rebecca Tickel was asked the following question:

“Q. So you didn’t know after she told you that night, where the line would be, did you? A. Over across the creek I didn’t, but I knew where the rest of it was. * * *

“Q. And after that where did the east or west line go to? A. Well, the east line was down and went to the creek on that side.

“Q. And then where did'it go after that? A. Well it crosses there.

“Q. How far across the creek does it go? A. I don’t know.

“Q. How many feet? A. I don’t know.

“Q. Where did she point to? A. Over to Bowman’s cornfield fence.

“Q. And how far along Bowman’s fence would it go? A. I don’t know.

“Q. What did she tell you? A. To a certain point, where it comes back.

“Q. What was the certain point? A. I don’t know.”

The testimony of Irvin W. Tickel with reference to the east boundary is just as indefinite as that of his wife. He was asked the following question:

“Q. In other words, all you can tell about this blue print was the existing fence line ‘I,’ and the line ‘T.’ A. That’s the one there.

“Q. And the other lines yon can’t tell about? A. I don’t know for sure. She pointed out-where this would be here, but I don’t know — the road frontage is the main part.

“Q. I know, but I want to find out what part contained this 15 acres that she showed you on this map? A. Well, this down here, and this one.

“Q. That’s the only two you remember? A. That’s right. ’ ’

Irvin W. Tickel testified on another occasion that Mrs. Shock did not tell them how many acres they would receive east of the ditch. Glenn Murr, the surveyor, testified that the plan was to find a purchaser for a part of the remaining acreage and then to make the survey. He testified that his survey for the 15 acres was not completed until August 15, and until this was done it would be impossible to give a description for 15 acres out of the whole tract.

The question of the statute of frauds was raised by the defendants, but since the plaintiffs were placed in possession of the property, we find tfiat it has no application. See 37 Ohio Jurisprudence, 141; Hodges v. Ettinger, 127 Ohio St., 460, 189 N. E., 113. That proposition is so academic that we believe no further citations are necessary.

One of the fundamental rules respecting the specific performance of contracts is that performance will not be decreed where the contract is not certain in its terms. State v. Baum, 6 Ohio, 383; Trent Milling Co. v. Wells-Abbott-Nieman Co., 10 Ohio App., 297; Lindner Co. v. Myrod Shoe Co., 38 Ohio App., 182, 175 N. E., 879.

The terms must be complete and free from doubt or ambiguity and must make the precise act which is to be done clearly ascertainable.

We find in Pomeroy’s Specific Performance of Contracts (3 Ed.), 350, Section 136, the following statement : '

“In order that a court of equity "shall exercise its power to decree a specific execution, where there has been a part performance, the contract itself must be clear, certain, and unambiguous in its terms, and must either be admitted by the pleadings, or proved, with a reasonable degree of certainty, to the satisfaction of the court. If, therefore, upon all the evidence given by both parties, the court is left in doubt as to the entire contract, Or even as to any of its material terms, it will not grant the remedy, although a partial performance of something has been sufficiently proved. It has been said, in some American decisions, that in suits ■ upon contracts for the purchase or sale of land, the location and boundaries of the land in question must be clearly defined in the contract and established by the evidence; and though the parties have agreed as to all other terms, if they have not as to these particulars, there is no contract which can be enforced.”

After applying the principle of law announced supra, we are of the opinion that the plaintiffs are entitled to no relief for the reason that the eastern boundary line of the tract of land was not agreed upon between the parties. There was never a meeting of the minds and this court cannot make a contract for the parties and furnish a description of the 15 acres of land which was "undivided at the time the agreement was entered into. We think that the defendant, Ross F. Shock, demonstrated his good faith in this matter, for about a week after thé contract was entered into, when he learned that there was a misunderstanding as to the amount of frontage on the Germantown pike, he Offered to return to the plaintiffs their $100 deposit .and in addition to pay their expenses incurred in moving into the property.

For the foregoing reasons our judgment is for the •defendants for costs.

Judgment accordingly.

Hoenbeck, P. J., Miller and Wiseman, JJ., concur.


author: Guernsey, J.

text:
    In re Estate of Burgoon: Burgoon, Appellant, v. Burgoon et al., Appellees.
    (No. 335
    — Decided January 18, 1946.)

      Mr. Otto W. Hess and Mr. George A Meekison, for appellant.

      Mr. Lawrence C. Warden and Mr. James Donovan, Jr., for appellees.
   Guernsey, J.

While the notice of appeal in this case prescribes an appeal on questions of law and fact, it is conceded by the parties and determined by the court that the case is not a chancery case and that the appeal stands as an appea.1 on questions of law only, and it is submitted to and’ heard by the court as an appeal on questions of law.

The appeal is from an order of the probate division of the Common Pleas Court of Henry county, dismissing the petition of the plaintiff, appellant herein, Martin L. Burgoon, surviving spouse of Mary Bur-goon, to take at the appraised value of $4,500, pursuant to the provisions of Section 10509-89, General Code, lot No. 19 in Alpheus Buchanan’s First Addition to the village of Liberty Center, Henry county, Ohio, alleged by him to constitute the mansion house of the decedent, as defined in such section. '

To this petition such of the defendants as are the heirs at law of Mary Burgoon, filed their answer in which they admitted the death of Mary Burgoon, as alleged in the petition; that the inventory of the real and personal property of the decedent was made and confirmed by the court; that the land described in the petition was owned in fee simple by the decedent; and that the same was appraised at $4,500, and denied the other allegations set forth and contained in the petition.

For a second defense to the petition, the defendants alleged that lot No. 19 in Alpheus Buchanan’s First Addition to Liberty Center is improved with two classes of buildings, one class being a dwelling house which was used by the decedent and the plaintiff as their mansion house, and the remainder of the lot is improved with business blocks and is in no sense a mansion house but, on the contrary,' is used and. occupied as a- pool room and another portion thereof as a restaurant and beer parlor, all of which has been rented to strangers and not used or occupied by the plaintiff as the mansion house, and by reason thereof plaintiff is not entitled to elect to take the entire property;’ and that the value of the mansion house and the ground that it is standing upon is greatly in excess of one-third of the appraised value of the entire estate of Mary Burgoon, deceased.

For a third defense the defendants alleged that on the 22nd day of November, 1944, Harold M. Burgoon commenced his action in the Common Pleas Court of Henry county, for the partition of the real estate, making the plaintiff and other defendants defendants in the partition case; that the partition cause is now pending, is wholly uncancelled, and is an active cause pending in that court; that the partition action was so commenced more than five years after the death of Mary Burgoon and before any administration of her estate; and that, by reason thereof, the'petition herein ought to be dismissed.

Upon the trial of this cause in the probate division of the Common Pleas Court it was found by the court that Martin L. Burgoon is the surviving spouse of the decedent, Mary Burgoon, that the premises described in the petition were occupied by the petitioner and Mary Burgoon as a homestead at the time of the death of Mary Burgoon, but that the premises were at the time and still are improved with commercial buildings situated thereon, and were appraised by the appraisers of the estate as a unit, and that, by reason thereof, Martin L. Burgoon is not entitled to elect to take the premises described in the petition, at the appraised value thereof as the surviving spouse, and the court rendered judgment dismissing the petition.

That is the judgment from which this appeal is taken.

The undisputed facts in evidence on the trial of the cause in the probate division of the Common Pleas Court, as disclosed by the bill of exceptions, are as follows:

Mary Burgoon, wife of plaintiff, died intestate on January 31, 1939, a resident of Henry county, Ohio, and the owner in fee simple of the real estate described in the petition.

No administration was had upon her estate until about 1945, following the filing of the petition for partition of the land by Harold M. Burgoon, one of the children of Martin L. Bnrgoon, and Mary Burgoon, Ms wife. Martin L. Burgoon, the surviving spouse, then applied to the probate division of the Common Pleas Court for appointment and was appointed administrator of her estate and caused an inventory and appraisement to issue and had the same executed and returned. In the inventory and appraisement the real estate described in the petition was inventoried as one parcel and appraised at $4,500. The inventory and appraisement was thereafter confirmed by the probate division of the Common Pleas’ Court. Upon confirmation of that appraisement the plaintiff, as’ surviving spouse, elected to take the real estate at the appraised* value.

Lot No. 19 is a large corner lot on the main business street of Liberty Center. This lot is improved with three buildings, one concrete block business building is constructed on the corner of the intersection of the two streets and is rented as a pool room; north and adjoining that building is another building of concrete blocks rented as a restaurant; and continuing north and on the same lot No. 19 is a vacant plot of about 40 feet in-width; and continuing north is-a frame dwelling house which plaintiff and his deceased wife occupied as a home at the time of her death. The concrete buildings were not at any time used in conjunction with the dwelling house as a home by the decedent or for domestic purposes in the conduct of family affairs.

The petitioner, Martin L. Burgoon, the surviving spouse of the decedent, continued, after the death of his wife, to occupy the dwelling house as a homestead, and to collect the rents for the two cement buildings located on the lot above mentioned.

The plaintiff contends that, as surviving spouse of decedent, he has the right to elect to take at the appraised value, all of lot No. 19 notwithstanding the cement buildings located on the corner of the lot are not used in conjunction with the mansion house located thereon, as the home of the decedent, and that,, for this reason, the judgment of the probate division is contrary to law.

Whatever right the plaintiff may have to take lot No. 19 at its appraised value arises, from and is governed by the provisions of Section 10509-89, General Code, so, in order to determine whether that contention has any merit, it is necessary to consider and interpret the provisions of that section, the pertinent part of which reads as follows:

“At any time within one month after the approval of the inventory, the surviving spouse, if any, whether acting as executor or administrator, or not, shall have the right to purchase the following property, if left by the decedent and if not specifically devised or bequeathed:

“(a) The mansion house, including the parcel of land on which the same is situated and lots of farm land adjacent thereto and used in conjunction therewith as the home of the decedent, and the household goods contained therein, at the appraised value as fixed by the appraisers,”

“The term ‘mansion-house*’ in its common sense, not only includes the dwelling house, but also all the buildings within the curtilage, as the dairy-house, the cow-house, the stable, etc.; though not under the same roof nor contiguous.” 2 Bouvier’s Law Dictionary, Rawle’s Third Revision, 2084.

“Curtilage, in law, means a small piece of land, not necessarily inclosed, around a dwelling house, and generally includes the buildings used for domestic purposes in the conduct of family affairs. The term has no application to any building not used as a dwelling.” Graves v. State (Okla.), 283 P., 795; Turknett v. State, 36 Okla. Cr., 401, 254 P., 985.

It will be noted that the phrase “and used in conjunction therewith as the home of the decedent,”'as it is used in subdivision (a) of Section 10509-89, General Code, above mentioned, modifies and operates as a limitation on the phrase “including the parcel of land on which the same is situated” and the phrase “and lots of farm land adjacent thereto.” Consequently it clearly appears that the parcel of land on which the mansion house is situated must be used in conjunction with the mansion house as the home of the decedent in order to come within the purview of the subdivision, and the subdivision as a whole constitutes an adoption by the Legislature of the common-law definition of mansion house as including the curtilage only.

As it appears from the undisputed evidence in this case that 'that part of lot No. 19 upon which the cement block buildings are situated was not used in conjunction with the mansion house as the home of the decedent, the plaintiff is not entitled to purchase at the appraised value, the entire lot, but his right to purchase at the appraised value is limited to that part of the lot not occupied by the cement block buildings. ' v

Whether the plaintiff, by reason of his failure to except to the inventory and appraisement of the estate of the decedent, or for any other reason is precluded from having the lot reinventoried and reappraised in two parcels, one consisting of that part thereof upon which the cement.block buildings are located and the other consisting of the balance of the lot, so that he may elect to purchase the balance of the lot pursuant to the provisions of the section mentioned, is not raised by the record and is not decided.

For the reasons mentioned, the judgment of the probate division of the Common Pleas Court will be affirmed at costs of plaintiff.

Judgment affirmed.

Middleton, P. J., and Jackson, J., concur.


author: Doyle, P. J.

text:
    Loeliger, Appellee, v. Akron Brass Mfg. Co., Inc., Appellant.
    (No. 1098
    — Decided June 18, 1947.)

      Mr. Marion F. Graven and Mr. George H. Barnard, for appellee.

      Messrs. Gritchfield, Gritchfield & Gritchfield, for appellant.
   Doyle, P. J.

Suit was commenced in the Court of Common Pleas of Wayne county by Gerold G. Loeliger, against The Akron Brass Manufacturing Company, in which he, the plaintiff, claimed, in his first cause of action, that there was due and owing him the sum of $4,150 as a “bonus” under a contract of employment with the said company. The petition prayed for this amount with interest on $2,250 from January 1, 1943, and with interest on $1,900 from January 1,1944.

The answer of the defendant admitted the “bonus” plan as set forth in the petition and pleaded that “no bonus under this plan was ever due the plaintiff.”

In a second’ cause of action the plaintiff prayed for $5,000, which amount, it is alleged, is a fair and reasonable compensation for work and labor performed for the company at the request of its officials over and beyond and in addition to the regular duties of the plaintiff with the company. And further that he was promised compensation for the performance of this work in addition to his regular salary. The answer admitted that services were rendered under an agreement with the company, but pleaded, that this work “was performed as a part of his regular work and employment; that he was fully compensated for such work by the salary he was then being paid.” The reply of the plaintiff joined the issues.

The jury returned a verdict for the plaintiff in the sum of $6,650,. allocated as follows: First cause of action $4,150; second cause of action $2,500. The judgment rendered on this verdict is the basis of the appeal to this court on questions of law.

There are numerous assignments of error. It is of first importance, we think, to examine the “bonus” agreement, in the light of the record, for the purpose of determining whether there is any evidence to sustain the jury’s verdict on this claim and the judgment entered thereon.

The right of the plaintiff to receive a bonus must be found within the corners of the resolution of the company, the contract of employment and the audit. I here give them seriatim.

(a) The resolution — passed by the directors November 25, 1941:

“Resolved, that beginning with the calendar year 1942, an amount between 30. and 40% of the net percentage increase of net profit resulting from manufacturing operations, said amount not to individually exceed one-half of the salaries of the hereinafter named beneficiaries, should be set up in a pool to be shared, in by the general manager, comptroller, and plant superintendent. The net profit percentage for the calendar year 1941 to be used as the basis for determining the net percentage increase in question.-

“Resolved further, that said pool shall be divided into three equal parts and paid out of the funds of the company to the general manager, comptroller, and the plant superintendent, as soon as the amount of said increase in percentage of net profit has been determined by the company’s auditors, and the percentage to be distributed within the limit of 30 to 40% above described, has been determined.

“Resolved further, that said plan may be amended or discontinued for any year by action of the board prior to January 1 of any year.”

(b) The contract of employment:

“Wooster, Ohio,

“December 15,1941.

“Mr. Gerold G. Loeliger,

“Wooster, Ohio.

“Dear Mr. Loeliger:

“I have been authorized by the board of directors to employ you as plant superintendent beginning the 15th day of December, 1941, upon the following terms and conditions:

“1. Your salary rate shall be $5,000 per annum, payable semi-monthly.

“2. You will share in the bonus plan approved by the board of directors at the meeting of November 25 on an equal basis with the general manager and comptroller.

“3. Your employment shall be at the pleasure of the board and in the event your .employment should be terminated for any reason, during any fiscal year period, your participation in any bonus fund for such fiscal year shall be determined by the board.,

“4. Your duties and responsibilities will be outlined by the president from time to time.

“This letter shall constitute the entire agreement with you and no previous proposals and/or negotiations shall be binding.

“If the foregoing is acceptable to you, please so indicate by signing the enclosed carbon at the space provided and return the same to me for my flies.

“Very truly yours,

“Akron Brass Mfg. Company Inc.

“By S. G. Laugher, President.”

(c) The audit (condensed):

1941 %

1. Net sales $1,015,731.48 100

2. Cost of products sold 663,831.78 65.36

351,899.70 34.64

Selling, Advt. & Adm. Exp. 142,228.04 14.00

Net income from sales 209,671.66 20.64

Net income from all sources before taxes 196,657.91 19.36

Net profit after taxes 117,150.01 11.53

1942 %

■ $1,854,182.81 1. Net sales 100

1,276,042.91 2. Cost of products sold 68.82

3. 578,139.90 ■ 31.18

Selling, Advt. & Adm. Exp.. 157,592.34 8.50

Net income from sales 420,547.56 22.68

Net income from all sources before taxes • 378,935.92 20.43

Net profit .after taxes 89,435.92 4.82

1943

1. Net sales $2,568,048.91 100

2. Cost of products sold 1,843,677.74 71.79

3. 724,371.17 .28.21

Selling, Advt. & Adm. Exp. 170,408.38 6.64

Net income from sales 553,962.79 21.57

Net income from all sources

before taxes 503,130.01 19.59

Net profit after taxes 86,830.01 3.38

Tbe above figures represent a condensation, presented by counsel, of tbe complete audit of tbe books of the company, and for tbe purposes of this decision are sufficient. The complete audit appears in tbe bill of'exceptions.

1. What is meant by tbe technical language “net percenfage increase of net profit resulting from manufacturing operations” as “has been determined by tbe company’s auditors”?

Tbe profit and loss account of tbe company now in litigation was prepared by tbe reputable accounting firm of Ernst & Ernst and followed tbe generally accepted auditing standards applicable to tbe circumstances.

Tbe several figures on lines 1 following the words “net sales” represent tbe respective amounts paid into tbe company by its customers, less returns, allowances, etc.

The several figures on lines 2 following tbe words “cost of products sold” represent tbe respective expenditures which went directly into the manufacture of tbe product sold. These expenses are called manufacturing costs and include such items as cost of raw materials, labor, freight, power, etc.

It is generally accepted in accounting circles that net profit from manibfachbring operations represents tbe difference between net sales and tbe cost of the goods sold — that is, tbe cost of those things which go directly into tbe manufactured product, rather than indirectly. And while such items as tbe cost of selling, advertisement, administration, etc., are all important items of cost and, of course, have a direct bearing on tbe net income or net profit of tbe entire business, such items are usually determined to be, for the purposes of accounting, non manufacturing costs.

The complete audit of the company’s books under inspection, shows that there was a net percentage decline in the net profits from manufacturing' operations through the years 1942 and 1943, as compared with 1941. This is shown in the third lines of the con.densed annual audits, supra. And such conclusion is fortified by the expert testimony of a certified' public accountant, employed by the company’s auditors, who supplied evidence of generally accepted auditing practices, and who, as an expert, interpreted the contents of his audit under consideration.

It is our conclusion that there is no evidence in the record to justify the payment of a bonus to anyone under the terms of the company’s resolution of November 25, 1941, through which a bonus could be paid only after a “net percentage increase of net profit from manufacturing operations.”

2. Examination has been made of the evidence offered and accepted in support of the second cause of action. In consideration thereof, the members of this’ court are of the opinion that it is of such a' character that reasonable minds could reach different conclusions and that in submission of such issue to the jury the trial court did not commit error, as claimed, prejudicial to the rights of the defendant.

The judgment rendered on the first cause of action will be 'reversed and final judgment entered for the defendant. The judgment rendered on the second cause of action will be affirmed.

Judgment accordingly.

Stevens and Hunsicker, JJ., concur.