text:
    NEWSPAPER — PUBLICATION—WORDS AND PHRASES.
    [Franklin (2nd) Circuit Court,
    March 15, 1905.]
    Wilson, Sullivan and Dustin, JJ.
    Columbus (City) v. John T. Barr.
    1.-Meaning or Words Used in Statute not Determined by Lexicographers, when.
    Whether or not a newspaper is one of “opposite politics” from that of another, within the meaning of Lan. R. L. 3109 (B. 1536-619), which requires that all ordinances and resolutions requiring publication shall be published in newspapers of opposite politics, cannot he determined from a lexicographer’s standpoint, for the reason that more than one signification is usuálly and ordinarily given to such words, owing to tho context.

      2. Legislative Intent,.of Lan. R. L. 3109 (B. 1536-619) is Publicity, etc.
    Tbe legislative intent in providing by Lan. R. L. 3109 (B. 1536-619) that all resolutions and ordinances requiring publication shall be published in newspapers of opposite politics, was to provide the widest publicity for the public acts of the municipal council, and not to cheapen the publication by competitive bidding; and a liberal construction of said statute so as to provide for competitive bidding should not be adopted, if such construction would narrow publicity.

      S. Independent Newspaper not one of “Opposite Politics” within Meanino of Lan. R. L. 3109 (B. 1536-619).
    An independent newspaper which refuses to be bound by the ties of allegiance to any particular political party, is not within the meaning of the term “opposite politics,” used in Lan. R. L. 3109 (B. 1536-619), for the reason that when compared with other newspapers, it may be of opposite politics on one question, and of the same politics on another, at one and the same time.
    Appeal from Franklin common pleas court.
    J. M. Butler, for plaintiff.
    W. O. Henderson, for defendant.
   WILSON, J.

This action is prosecuted by the city solicitor in the name of the city at the request of a taxpayer. It seeks to enjoin the defendant, who is the city clerk, from entering into a contract, authorized by a resolution of the city council, with the Columbus Dispatch, an independent newspaper, published in the English language, and of general circulation in the city, for the publication of the ordinances and resolutions of the city council, required by law to be published in two newspapers of “opposite politics.”

The claim is, that such contract and publication would be unauthorized, illegal and void, for the reason that the paper in question is not within the designation of the statute.

The provision of the statute' is, that “All ordinances and resolutions requiring publication shall be published in two newspapers of opposite politics, published and of general circulation in such municipality.” Laning R. L. 3109 (B. 1536-619).

The character of the Columbus Dispatch is, as shown by the evidence, beyond question, that of an independent newspaper. As is testified by its editor:

“It has its politics, and by this I mean, its political sentiments and opinions, or its political complexion. Its politics consists in an active and positive advocacy of such principles and policies touching the administration of public affairs, as it believes to be right and beneficial to the state and community, and of such candidates for office as will best promote the public welfare, and of doing this in its own way untrammeled by any party organization, caucus, man or set of men.” It distinctly disavows any party name, and refuses to be bound by any party allegiance. The only question, therefore, is, Does such a newspaper fall within the language of the statute?

The statute has not been construed by the courts of this state.

The only authorities cited, in argument, are standard definitions of the words to be interpreted by the leading lexicographers and scientific writers, and People v. Sullivan Co. (Supvrs.) 56 N. Y. 249; Shields v. McGregor, 91 Mo. 534 [4 S. W. Rep. 266]; Weaver v. Toney, 21 Ky. Law 1157 [54 S. W. Rep. 732],

The meaning of the words cannot be determined from the lexicographer’s standpoint for the reason that more than one signification is usually and ordinarily attributable to them, owing to the context. The authorities cited are neither controlling nor persuasive. Resort must be had to other means in order to ascertain the intention of the legislature, which must govern. Similar provisions in other statutes reflect some light upon this question. Laning R. L. 2193 (R. S. 917) provides that the commissioners shall cause their financial statement, together with the report of the examiners to be published “in two newspapers of different political parties.”

In the case of Ohio State Journal Co. v. Brown, 10 Circ. Dec. 470 (19 R. 325), this court held that an independent newspaper was not within the meaning of this section. If its language is the equivalent of the language to be interpreted here, that ease is authority; otherwise not.

Laning R. L. 2477 (R. S. 1129) requires the report of the committee appointed to examine the treasury to.be published “in two newspapers of opposite polities.” Laning R. L. 7439 (R. S. 4367) provides:

“Every proclamation for an election, or fixing the times of holding court, notice of the rates of taxation, bridge, pike, and notice to contractors, and such other advertisements of general interest to the taxpayers as the auditor, treasurer, probate judge, or commissioners may deem proper, shall be published in two newspapers of opposite politics, at the county seat, if there be such published in the county seat.” Before the revision of 1880 (73 O. L. 75) the language of this section was, “in two newspapers, one of each political party, if there be two papers of different political principles printed within said county in each of the several counties of this state.” It will be observed this language was in need of abridgment. Unless the plain meaning of the statute in its present form forbids, it is open to the presumption that the codifiers did not intend to change the law, but to express it in better phraseology. It would be remarkable, also, if the proclamation for an election were not required to be published in the party papers.

Laning R. L. 2164 (R. S. 895) reads:

“The commissioners shall subscribe for one copy of the leading newspapers of each political party, printed and published in their county, and cause the same to be bound and filed in the auditor’s office, as public archives, for the gratuitous inspection of the citizens of such county. ’ ’

It is not conceivable that the purpose of this statute is to establish a reading room. Its purpose is to preserve a reference file of the publications required by law to be made by the various officers of the county, open to the inspection of the public, as well as for providing a refutation of any claimed delinquencies in that regard. In order that these publications may thus be preserved, it is necessary that they be published in political party newspapers, for which alone the commissioners are authorized to subscribe.

It follows from the language of the foregoing statutes that unless the words “different political parties” and “opposite politics” mean the same, the bulk of the public printing provided for in Lan. R. L. 2477 and 7439 (R. S. 1129 and 4367) may be omitted from the files, because not published in a party newspaper.

A construction that would make this result possible is unreasonable, and cannot stand 'opposed to a construction which, by holding the terms in the different statutes synonymous, will preserve all official publications.

The word, polities, when applied to the science of government in this country, means party politics. The people organize themselves into parties for the purpose of imposing upon the government a more or less well defined policy, through the election of chosen candidates under a party name, each party having its own policy and candidates. In the common acceptation, the arena on which these parties contend is the field of American politics.

So in the statute under review, the legislature did not use the words “opposite politics” in any broader sense. It was not intended that the various boards and councils, whose duty it is to provide for the publication, should take upon themselves the duty of determining the polities of any given newspaper, abstractly, from principle. If that were permissible, the board or the council, not the legislature, would determine the kind of paper in which the publication could be made, and by refinement, could defeat the very purpose of the statute. That the municipal council does not have arbitrary power, or even wide latitude, in the selection of a newspaper, is made obvious by the provisions of Lan. R. L. 3018 (R. S. 1537; B. 1536-908) which prescribe, when it may depart from the statutory designation. The kind of newspaper is predetermined by an established party allegiance, which denotes its politics, and which the council is not at liberty to ignore.

Am independent paper, which refuses to be bound by the ties of party allegiance, is not within the classification, for the reason that, compared with any other paper, it may be of opposite politics on one question, and of the same politics on another, at one and the same time; of opposite politics today and of the same politics tomorrow, evading the provision of the statute at will.

The purpose of the legislature was to provide for the widest publicity of the public acts of the municipal council, under a general law. It is common knowledge that this purpose would be best subserved as a general rule, by publication in.the newspapers of opposite party politics, for the reason that when applied to all municipalities, they .are the local papers that generally reach the most people. The independent newspaper, as a rule, is confined to the larger cities. It may best subserve the purpose of the statute in a few cities, but it is the exception that must fail under a general law.

The legislature did not undertake to cheapen the publication by competition. The competitive bidding resorted to in this case, is the policy of the city, and, as is expressed- in the ordinance providing for the same, is not to be used to annul the statute. It may be that this interpretation opens the door to political aggrandizement, but it still remains that extended publicity is the governing purpose of the statute, and must be kept to the fore when seeking to discover the legislative intent. No useful public purpose could be subserved by holding that this language should receive a more liberal construction, unless it be that it would provide competition, but that must yield if it would narrow publicity.

The finding and decree will be for the city. Injunction as prayed for.

Sullivan and Dustin, JJ., concur.


source: Caselaw Access Project

author: GIFFEN, J.

license: Public Domain

text:
    CONTRACTS — PLEADING—VERDICT.
    [Hamilton (1st) Circuit Court,
    February 20, 1905.]
    Jelke, Gificen and Swing, JJ.
    James W. Brown v. B. M. Ricketts.
    1. Failure to Allege Promise to Pat, in Action on Implied Contract, not Ground for Reversal of Judgment for Plaintiff.
    A failure to aver in a suit for services upon an implied contract that the defendant agreed to pay what the services were worth, is not ground for a reversal of a judgment for such services, where upon consideration of the whole record it appears that substantial justice has been done.
    2. Judgment Granted where Conclusion from Special Verdict is Self-evident.
    If, in such case from the facts found by the jury in a special verdict, the conclusion of an agreement to pay is so self-evident that no one would doubt it, the court is fully warranted in granting judgment thereon.
    3. Special Verdict should not Set out Conduct from which Request Inferred.
    For a jury to set forth in a special verdict the conduct from which a request is implied, would be to present the evidence in proof of the fact established by the evidence, and in violation of Sec. 5200 Rev. Stat.
    Error to Hamilton common pleas court.
    W. A. Hicks, for plaintiff in error.
    G. H. Kattenhorn, for defendant in error.
   GIFFEN, J.

The plaintiff below, Dr. Ricketts, avers in his petition, in substance, that at the instance and request of defendant, James W. Brown, he rendered professional services to Frank Brown, a son of the defendant, and that the fair value of such services is $780.

The defendant by answer admits the performance of the services, but denies each and every other allegation of the petition, and further avers that Frank Brown, the son of the defendant, was over twenty-one years of age at the time of the alleged request by the defendant.

The jury returned a special verdict, the substance of which is contained in the first and fifth paragraphs, to wit:

“That prior to the furnishing by plaintiff of the surgical operation and other services, board, lodging and nursing for the treatment and care of Frank Brown, the defendant requested plaintiff by his conduct to furnish the same; that at the time of said request plaintiff expected defendant to pay him, and defendant expected to pay plaintiff for the same; that the reasonable value thereof at the time they were furnished was $600; that the furnishing of the same was completed on March 31, 1900, and that payment thereof was then demanded by plaintiff from defendant and refused..
“That plaintiff expected to be paid by defendant, and defendant expected and intended to become liable to plaintiff at the time when plaintiff furnished professional services, board and lodging in the healing and care of defendant’s son; that the reasonable value of the same at the time when the same was so' furnished was $600; that the furnishing of -(he same was completed on March 31, 1900, and payment thereof was then demanded by plaintiff from defendant and refused.”

It is claimed that the court erred in rendering judgment upon the special verdict in favor of the plaintiff, for the reason that the jury did not find all the facts necessary to sustain such judgment. The verdict, however, responds to every material averment in the petition controverted in the answer, and if the special verdict is insufficient to support the judgment the petition itself does not state facts sufficient to constitute a good cause of action, unless they may be supplied by implication.

The principal objection to the special verdict is that the jury failed to find that the defendant promised to pay the plaintiff for the services requested. We think the better practice is to aver that the defendant agreed to pay the plaintiff as much as said services were worth (Swan, Pleading & Precedents 503), although the omission seems not fatal to the cause of action. Bliss, Code PI. Sec. 152; Pomeroy, Code Remedies Sec. 538 and following.

At all events, the defendant made no objection to the petition, but proceeded with the trial as though the petition contained such averment. If, upon consideration of the whole record, substantial justice has been done, the court will not reverse for failure to plead a promise to pay. It is said, however, that the jury should nevertheless have found such fact, and counsel rely upon Columbus, H. V. & T. Ry. v. Gaffney, 65 Ohio St. 104 [61 N. E. Rep. 152], the first proposition of the syllabus being:

“The meeting of the minds of parties upon its terms is necessary to the making of a contract; and this is so whether it be an express contract or an implied one, if, in the latter case, the contract to be proved is an actual .one as distinguished from a constructive contract. ’ ’

The jury in this case have found that the defendant requested plaintiff by his conduct to furnish the services; that at the time of said request plaintiff expected defendant to pay him and defendant intended to become liable to plaintiff. This shows a meeting of the minds of the parties upon all the essential terms of the contract unless it be necessary to find that the defendant promised to pay a reasonable value of the services. In 15 Am. & Eng. Enc. Law (2 ed.) 1081, the rule is stated as follows:

“It is well settled that where one performs services for another at his request, but without any agreement or understanding as to wages or remuneration, the law implies a promise on the part of the party requesting the services to pay a just and reasonable compensation, unless there is a family relation existing between the parties, and this remuneration is recoverable on a quantum meruit

Professor Keener, in his work, Quasi-Contracts, at pages 4 and 5, says:

“Suppose, however, that A should write to a livery keeper simply requesting him to send a coupe to his, house at a certain hour, and the coupe was sent and used by A, there would certainly be no express contract, since A has never in words said that he intended to assume any obligation in favor of B. And yet A’s conduct speaks quite as loudly as words, and leaves no doubt of his intention to enter into a contract with B for the use of the coupe. No one would question that A had communicated such an intention to B, and that he can be fairly said to have promised to pay him for the use of his property. ’ ’

If the conclusion is so self-evident that no one would question it, then certainly it is such a conclusion as the court may draw from the facts already found by the jury. It would have added no fact to the special verdmt had the jury found that a contract was made by the parties, and that the defendant thereby became indebted to the plaintiff, each of which is a conclusion of law.

Counsel for plaintiff in error also claims that the jury should have set forth in their verdict the particular conduct from which the request is inferred or implied, but this would be presenting the evidence to prove the fact and not the fact as established by the evidence, and therefore in violation of Lan. R. L. 8709 (R. S. 5200).

This is the second trial of the case with a like result in each, and, substantial justice being done, the judgment will be affirmed.

Jelke and Swing, JJ., concur.


text:
    MECHANICS’ LIENS.
    [Hamilton (1st) Circuit Court,
    1905.]
    Jelke, Swing and Giffen, JJ.,
    W. H. Stewart v. Westwood Brick Co. et al.
    Mechanic’s Lien does not Attach in Favor oe Subcontractor or Material Men Dealing with Subcontractor.
    Under the provisions of Lan. R. L. 5100 and 5117 (R. S. 3184 and 8195), no lien attaches on real property in favor of subcontractors, laborers and those furnishing material to subcontractors, where no contractual relation exists between them and the owner of the property.
    Error to Hamilton common pleas court.
    C. J. Hunt, for plaintiff in error.
    A. K. Nippert, for Westwood Briek Co.
    C. W. Hoffman, for Moores Lime Co.
    Outcalt & Foraker, for Cincinnati Gas & Elec. Co.
   GIFFEN, J.

While it is true that the mechanic’s lien law has been amended since -the decision of Palmer v. Tingle, 55 Ohio St. 423 [45 N. E. Rep. 313], yet Lan. R. L. 5100 and 5117 (R. S. 3184 and 3195), as now amended, are open to the same objection in so far as they give a lien on the property of the owner to subcontractors, laborers and those who furnish material to subcontractors.

No contractual relation existed between the principal and contractor, William H. Stewart, and the plaintiff, the Westwood Brick Company, or the Moores Lime Company, each of whom furnished material to a subcontractor.

Judgment will be reversed and cause remanded with instructions to distribute $885.06 of the fund to the plaintiff and the Moores Lime Company, in proportion to their respective claims, and the residue of the fund to the principal contractor, William H. Stewart.

Jelke and Swing, JJ., concur.


author: MARVIN, J.

text:
    ATTORNEY AND CLIENT — EVIDENCE—CHARGE TO JURY.
    [Cuyahoga (8th) Circuit Court,
    December 12, 1904.]
    Hale, Marvin and Winch, JJ.
    Samuel H. Smart v. Masters & Wardens of N. C. Lodge No. 2.
    ■ 1. Attorney not Disqualified as Witness Under Lan. R. L. 8750 (R S. 5241) Unless Strict Relation of Attorney and Client Exists.
    An attorney is not disqualified' from testifying concerning a communication made to him, under Lan. R. L. 8750 (R. S. 5241), unless it was made strictly in the relation of attorney and client; there must be something confidential in the nature of the communication, and’ it must be one which would not naturally have been made but for that relation.
    2. Charging Rent to Agent not an Election to Hold him only.
    The mere fact that lessor charged an agent with the rent, and made out the account against him, or the further fact that lessor appropriated certain furniture which was left in the leased property by the agent in part payment of the rent, but without resorting to legal proceedings, does not necessarily constitute an election to hold the agent and release the principal.
    3. Mere Repetition of Proposition of Law in Charge to Jury not Error.
    The simple repetition of a proposition of law by the court in its charge to the jury, either before or after argument, but without any comment upon it whatever, is not necessarily erroneous.
    Error to Cuyahoga common pleas court.
    McMillan & Ingersoll, for plaintiff in error.
    Hamilton, Hamilton & Smith, for defendant in err
   MARVIN, J.

Suit was brought by the lodge against Smart for rent of offices in the masonic temple at Cincinnati.

The defense was a general denial.

The plaintiff’s claim was, that the offices in question were rented by the plaintiff through his agent, Newcomer. As matter of fact the offices were occupied by Newcomer. To establish plaintiff’s claim he introduced as a witness, John E. Bruce, an attorney at law of Cincinnati. His testimony was taken by deposition and he testified, among other things, as follows:

“Q. 3. Have you had any business relations with Mr. Smart during the last five years and if so what were they?
“A. I was his attorney from the latter part of 1898 until the spring of 1900 in connection with certain street railroad franchises which he was seeking to obtain in this section of the state, and also in the matter of the examination of the title to some real estate for the purchase of which he was negotiating as a site for an acetylene gas machine plant.
“Q. 4. -What, if any conversation, did you ever have with Mr. S. H. Smart, relative to the. rental of offices in the masonic temple in Cincinnati ?
“A. I had a talk personally with Mr. Smart in this city relative to both an acetylene gas plant and a street: railroad and at that time he stated that Mr. I. W. Newcomer would represent him in both matters; that he thought it would be better for Mr. Newcomer to have an office as near mine as possible as there would be necessity for certain conferences, and that in all of the work here, especially in the matter of the street railway franchises, he desired his name to be kept entirely confidential and not given to any one. I told him there were some vacant offices opposite mine in the masonic temple which he could secure at a very reasonable rate, but that the management of the property required a guarantee from new tenants of whom they knew nothing that the rent would be paid, and that from my personal knowledge Newcomer was wholly unable to pay anything, but that if he did not want his name known, I would give the management the necessary assurance that the rent would be paid. Mr. Smart said that that would be all right and that the rent would be paid promptly by him. The manner of the payment of the rent was not spoken of as I now remember. As soon as the necessity for offices arose, Mr. Newcomer came to me and I took him to Mr. P. R. Fortney, the superintendent of the building ; the offices were secured and I became surety for the payment of the rent. ’ ’

Upon the trial, objection was made to this question, which,- being overruled, a motion was made to take from the jury all of the answer down to and including the words: “The manner of payment was not spoken of as I now remember.” This motion was overruled, and the action of the court in regard to both the overruling of this motion and • .the overruling of the objection to the question is complained of as error.

Laning R. L. 8750 (R. S. 5241) provides as follows:

/‘The following persons shall not testify in certain respects:
“1. An attorney, concerning a communication made to him by his client in that relation, or his advice to his client, * * * .”

The offices were rented between the dates mentioned by Mr. Bruce as the time during which he acted as attorney for Mr. Smart'in certain matters named. We do not understand that under this section of the statute Mr. Bruee would be an incompetent witness on every subject conversed about between Mm and Mr. Smart. It is only those things which come to an attorney by reason of, and in connection with, the matter for which the one is acting as attorney for the other and must be in the nature of communications which would not naturally have been made but for that relation. In short, there must be something confidential in the nature of the communication in order to make the attorney incompetent as a witness. Not only so, but it is settled that to render the attorney incompetent the communication must have been made in the case in the relation of attorney and client, and it must be strictly in that relation that the communication was made in order to render it incompetent.

There is nothing in the nature of this communication which in our judgment renders it obnoxious to the statute, and there was no error in admitting this evidence.

A letter written by Mr. Smart to Mr. Bruce was admitted in evidence, and there is nothing in the letter which makes its admission obnoxious to the statute, and there was no error in admitting this letter.

It is further urged as error that the court permitted the jury to consider the ease against Smart, notwithstanding the fact that the account for the rent was made out against Newcomer, and that' it appears from the evidence that certain furniture left by Newcomer in the office when he quitted the rooms was appropriated by the plaintiff in part payment of the rent. It is said that each of these acts, and especially the latter, was an election on the part of the plaintiff to hold Newcomer. Clearly, the fact that the charge was made on the books of the plaintiff against Newcomer would not necessarily constitute an election. Doubtless if the plaintiff had brought a suit against Newcomer and levied either by attachment or execution upon Newcomer’s furniture, this would constitute an election and be a bar to the prosecution of the suit against Smart, but it nowhere appears from the evidence how the property was taken. The natural inference is, that when Newcomer left the office he left certain furniture there and that the plaintiff appropriated that furniture to the partial payment of the indebtedness for rent. This clearly would not constitute an election, for it may well be that this was done upon the theory that the property left in the office by the agent was the property of the principal.

Complaint is further made that the court erred in giving to the jury in charge certain requests made by the plaintiff. The particular requests asked and given were the third, seventh and eighth, which read:

“3. If you are satisfied that the defendant had agreed with plaintiff to pay the rent, at the time Newcomer took possession of the offices, then I say to you that the fact that the rent was charged on the books of the plaintiff to Newcomer, or that the furniture of Newcomer was taken to pay part of the rent, would constitute no defense for Smart. ’ ’
“7. If you find that Newcomer rented these offices for Smart and with his knowledge and consent, the fact if it be a fact, that the contract was made in the name of Newcomer alone, would be no defense for Smart. ’ ’
“8. If these rooms were rented by Newcomer for Smart, with Smart’s consent, then the fact, if it be a fact, that the claim for rent was presented first to Newcomer, would constitute no defense for Smart. ’ ’

These requests were properly given for the reasons already mentioned in this opinion in reference to the matter of election.

It is further claimed as error that the court repeated the third request of plaintiff in its general charge. An examination of the bill shows that this was done without any comment whatever on the part of the court, and we do not understand that the simple repetition of a proposition of law properly given at any time in the charge, either before of after argument is necessarily erroneous. The ease referred to by counsel, Rupp v. Shaffer, 12 Circ. Dec. 154 (21 R. 643), holds that to repeat and comment and enlarge upon such request in the general charge would be erroneous.

It is further urged that the verdict in this case was not sustained by the evidence. That the question of whether Smart was the principal of Newcomer in the renting of his office, is close, cannot be denied, but the testimony of Bruce and the letter written by Smart to Bruce being properly received in evidence, we think leaves the evidence such that we cannot say that the verdict was clearly against the weight of the evidence, and the judgment is affirmed.

Hale and Winch, JJ., concur.


author: DUSTIN, J.

text:
    CUSTOM — NEGLIGENCE—STREET RAILWAYS.
    [Franklin (2nd) Circuit Court,
    March 27, 1905.]
    Dustin, Wilson and Sullivan, JJ.
    Columbus Ry. v. Leroy Muns.
    . i. Bumper of Electric Car not Designed for Use by Passengers.
    The “bumper” of an electric car is a place of manifest danger, and not designed for the use of passengers, nor is it a platform or step suitable or safe for a transferring passenger to use on his way to the inside of the car. To occupy it is negligence.
    2. Passenger Stepping on Bumper Guilty of Contributory Negligence.
    Hence a person with a “transfer” who steps upon a “bumper,” _ thereby loses his rights to the high care due him as a passenger; and, if, while in that position, or attempting to leave it, he is injured by a colliding car from the rear, he is guilty of contributory negligence, and cannot recover, except for willful negligence on the part of the railway company’s agents.
    3. Custom does not Ripen from Occasional Use.
    Occasional instances of passengers riding upon the “bumper,” without objection by conductors, do not prove a custom; and conduct so obviously negligent could not ripen into a custom binding upon anybody.
    Error to Franklin common pleas court.
    Booth, Keating & Peters, for plaintiff in error:
    Error in the admission of evidence. Deering, Negligence Sec. 9;', Hamilton v. Railway, 36 Iowa 32; Baker v. Irish, 172 Pa. St. 528 [33' Atl. Rep. 558]; Blanchette v. Railway, 175 Mass. 51 [55 N. E. Rep. 481]; Tillyer v. Glass Co. 7 Circ. Dec. 209 (13 R. 99).
    Refusal of the common pleas to nonsuit the plaintiff at the close of his evidence. Buswell, Pers. Inj. Sec. 134; Gilman v. Deerfield, 81 Mass. (15 Gray) 577; Bard v. Traction Co. 176 Pa. St. 97 (34 Atl. Rep. 953; 53 Am. St. Rep. 674) ; Ohio & Ind. Torpedo Co. v. Fishburn, 61 Ohio St. 608 [56 N. E. Rep. 457; 76 Am. St. Rep. 437]; Indianapolis & C. Ry. v. Rutherford, 29 Ind. 82 [92 Am. Dec. 336]; Jammison v. Railway, 92 Ya. 327 [23 S. E. Rep. 758; 53 Am. St. Rep. 813]; Nieboer v. , Railway, 128 Mich. 486 [87 N. W. Rep. 626]; Ashbrook v. Railway, 18 , Mo. App. 290; Cm. L. & A. Elec. St. Ry. v. Lohe, 68 Ohio St. Í01 [67 N. E. Rep. 161]; Coal Co. v. Estievenard, 53 Ohio St. 43 [40 N. E. Rep. 725] ; Mann v. Traction Co. 175 Pa. St. 122 [34 Atl. Rep. 572]; Barlow v. Railway, 67 N. J. L. 364 [51 Atl. Rep. 463]; Chicago West Div. Ry. v. Klauber, 9 111. App. 613; Thane v. Traction Co. 191 Pa. St. 249 [43 Atl. Rep. 136; 71 Am. St. Rep. "767]; Fry v. Raikuay, 17 Phila. 61; Memphis & L. R. Ry. v. Salinger, 46 Ark. 528; Bethel v. Railway, 8 Circ. Dec. 310 (15 R. 381) ; Schwartz v. Railway, 4 Circ. Dec. 272 (8 R. 484) ; Pitts. F. W. & C. Ry. v. Krichbaum, 24 Ohio St. 119; Shadletsky v. Railway, 88 N. Y. Supp. 1014; Radley v. Railway, 44 Ore. 332 [75 Pac. Rep. 212]; Eller v. Traction Go. 15 Dee. 208.
    Negligence per se. Bethel v. Railway, 8 Circ. Dee. 310 (15 R. 381) ; Schausten v. Railway, 7 Circ. Dec. 389 (18 R. 691) ; Cleveland Elec. Ry. v. Wadsworth, 25 O. C. C. 376; Wadsworth v. Railway, 70 Ohio St. 432 [72 N. E. Rep. 1166]; Beliefontaine Ry. v. Snyder, 24 Ohio St. 670; Erie Ry. v. Kane, 14 O. F. D. 193 [118 Fed. Rep. 223; 55 C. C. A. 129],
    Weight of evidence. Shadletsky v. Railway, 88 N. Y. Supp. 1014; Knight v. Railway, 21 App. D. C. 494; Alabama Midland Ry. v. Guilford, 119 Ga. 523 [46 S. E. Rep. 655]; Citizens’ Ry. v. Sinclair, 81 S. W. Rep. (Tex. Civ. App.) 329; Johnson v. Electric Co. 32 Wash. 382 [77 Pac. Rep. 677] ; Cheyne v. Railway, 97 App. Div. 56 [89 N. Y. Supp: 626] ; McKenzie v. Coal Co. 89 App. Div. 415 [85 N. Y. Supp. 819] ; Murray v. Railway, 55 Atl. Rep. (R. I.) 491; Wynn v. Railway, 133 N. Y. Rep. 575 [30 N. E. Rep. 721],
    Error in the charge of the court. Words and Phrases Judicially Defined, Yol. 2, page 1540; Watkinds v. Railway, 38 Fed. Rep. 711 [4 L. R. A. 239]; Kentucky Cent. Ry. v. Thomas, 79 Ky. 160 [42 Am. Rep. 211]; Balt. & O. Ry. v. Whittaker, 24 Ohio St. 642; Globe Ins. Co. v. Sherlock, 25 Ohio St. 50; Lowe v. Lehman, 15 Ohio St. 179; Aetna Ins. Co. v. Reed, 33 Ohio St. 283; Moberly v. Railway, 98 Mo. 183 [11 S. W. Rep. 569]; Smith v. Smith, 19 Mass. (2 Pick.) 621 [13 Am. Dec. 464] ; Hibbard v. Thompson, 109 Mass. 286; Geiselman v. Scott, 25 Ohio St. 86; Pendleton St. Ry. v. Stallmann, 22 Ohio St. 1; Balt. & O. Ry. v. Whittaker, 24 Ohio St. 642; Clev. C. C. & I. Ry. v. Elliott, 28 Ohio St. 340; Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66; Balt. & O. Ry. v. Whitacre, 35 Ohio St. 627; Railway v. Depew, 40 Ohio St. 121; Balt. & O. Ry. v. McPeek, 8 Circ. Dec. 742 (16 R. 87) ; Koester v. Railway, 11 Circ. Dee. 283 (20 R. 475) ; Creamer v. Railway, 156 Mass. 320 [31 N. E. Rep. 391; 16 L. R. A. 490; 32 Am. St. Rep. 456]; Schaefler v. Sandusky, 33 Ohio St. 246, 249 [31 Am. Rep. 533]; Dayton (City) v. Taylor, 62 Ohio St. 11 [56 N. E. Rep. 480]; Lake Shore & M. S. Ry. v. Callahan, 25 O. C. C. 115. .
    Willful negligence. Erie Ry. v. McCormick, 69 Ohio St. 45 [68 N. E. Rep. 571] ; Thompson, Negligence Secs. 206, 207, 1627 and 1715; Krause v. Morgan, 53 Ohio St. 26 [40 N. E. Rep. 886]; Fonda v. Railway, 71 Minn. 438 [74 N. W. Rep. 166; 70 Am. St. Rep. 341] et seq.; Pilts. C. C. & St. L. Ry. v. Kelly, 5 Circ. Dec; 662'(12 R. 341) ; Lake Shore & M. S. Ry. v. Schade, 8 Circ. Dec. 316 (15 R. 424) ; Shearman & Redfield, Negligence See. 18; Wilson v. Britt, 11 Mees. & Weis. 113, and Wiles in L. R. 1 C. P. 640; Clev. G. C. & I. Ry. v. Elliott, 28 Ohio St. 340; Lake Shore & M. S. Ry. v. Callahan, 25 O. O. C. 115; Supreme Court of the United States, in the ease of Gilbert v. Railway, 13 O. F. D. 475 [97 Fed. Rep. 747 ; 38 C. C. A. 408]; Lahe Shore & M. S. Ry. v. Ehlert, 63 Ohio St. 320 [58 N. E. Rep. 812]; Lahe Shore & M. S. Ry. v. Harris, 13-23 O. C. C. 400; Wynn v.' Railway, 133 N. Y. 575 [30 N. E. Rep. 721],

      Res ipsa loquitur rule. Knight v. Railway, 21 App. D. C. 494; Washington Mut. Ins. Co. v. Insurance Co. 5 Ohio St. .450; Brick Co. v. Pond, 38 Ohio St. 65; Coal Co. v. Estievenard, 53 Ohio St. 43 [40 N. E. Rep. 725] ; Marietta & C. Ry. v. Pichsley, 24 Ohio St. 654; White v. Thomas, 12 Ohio St. 312 [80 Am. Dee. 347]; Pitts. F. W. & C. Ry. v. Slusser, 19 Ohio St. 157; Parmlee v. Adolph, 28 Ohio St. 10; McCafferty v. Hock Co. 5 Cire. Dec. 262 (11 R. 457); West Chicago St. Ry. v. Winters, 107 111. App. 221; Citizens’ Ry. v. Sinclair, 81 S. W. Rep. 329 (Tex. Civ. App.).
    F. S. Monnett and M. L. Boyd, for defendant in error:
    Contributory negligence. Schweinfurth v. Railway, 60 Ohio St. 215 [54 N. E. Rep. 89],
    Custom. Randall v. Telegraph Co. 54 Wis. 140, 142 [11 N. W. Rep. 419; 41 Am. Rep. 17] ; Illinois Cent. Ry. v. Davidson, 76 Fed. Rep. 517 [22 C. C. A. 306; 46 U. S. App. 300; 7 Am. & Eng. Neg. Gas. 449]; Montgomery & E. Ry. v. Stewart, 91 Ala. 421 [8 So. Rep. 708; 2 Am. & Eng. Neg. Cas. 62]; Fuller v. Railway, 21 Conn. 557 [2 Am. & Eng. Neg. Gas. 266]; Louisville & N. Ry. v. Long, 94 Ky. 410 [22 S. W. Rep. 747; 11 Am. & Eng. Neg. Cas. 579]; Dillingham, v. Pierce, 31 S. W. Rep. (Tex. Civ. App.) 203 [6 Am. & Eng. Neg. Cas. 708].
    Defective machinery. Mt. Adams & E. P. Inc. P. Ry. v. Isaacs, 10 Cire. Dec. 49 (18 R. 177) ; Fisher v.' Try on, 8 Cire. Dec. 556 (15 R. 541) ; Gable v. Toledo, 9 Cire. Dec. 63 (16 R. 515) ; Strong v. Hardware Co. 6 Cire. Dec. 212 (9'R. 249) ; Reuben v. Sivigart, 7 Cire. Dec. 638 (15 R. 565) Toledo Consol. St. Ry. v. Fuller, 9 Cire. Dec. 123 (17 R. 562); Iron Ry. v. Flowery, 36 Ohio St. 418 [38 Am. Rep. 597]; Lahe Shore & M. S. Ry. v. Yokes, 5 Cire. Dec. 599 (12 R. 499).
    The charge. Willful negligence. Pitts. C. C. & St. L. Ry. v. Kelly, 5 Cire. Dec. 662 (12 R. 341), affirmed, Railway v. Kelly, 53 OhiSt. 667; Lahe Shore c& M. S. Ry. v. Schade, 8 Cire. Dee. 316 (15 R. 424), affirmed, Railway v. Schade, 57 Ohio St. 650; Newport News & M. V. Co. v. Howe, 52 Fed. Rep. 362 [3 C. C. A. 121;. 6 U. S. App. 172]; Louisvllle & N. Ry. v. Railway, 60 Fed. Rep. 993 [9 C. C. A. 314; 22 U. S. App. 102]; Grand Trunk Ry. v. Ives, 144 U. S. 408 [12 Sup. Ct. Rep.

      679; 36 L. Ed. 485]; Inland & 8. G. Co. v. Tolson, 139 U. S. 551 [11 Sup. Ct. Rep. 653; 35 L. Ed. 270]; Cincinnati St. By. v. Whitcomb, 9 O. F. D. 5 [66 Fed. Rep. 915; 14 C. C. A. 183; 31 U. S. App. 374]; Railway v. Kassen, 49 Ohio St. 230 [31 N. E. Rep. 282; 16 L. R. A. 674]; Thompson, Trial Ev.; Kerwhacker v. Railway, 3 Ohio St. 172 [62 Am. Dee. 246]; Clev. C. & C. Ry. v. Elliott, 4 Ohio St. 474; Pendleton St. Ry. v. Stallmann, 22 Ohio St. 1; Timmons v. Railway, 6 Ohio St. 105; Clev. C. & C. Ry. y. Crawford, 24 Ohio St. 631 [15 .Am. Rep. 633]; Meek v. Pennsylvania Co. 38 Ohio St. 632; Baker v. Pendergast, .32 Ohio St. 494 [30 Am. Rep. 620]; Part v. Devereux, 41 Ohio St. 565; Pitts. F. W. & C. Ry. v. Krichbaum, 24 Ohio St. 119; Schweinfurth v. Railway, 60 Ohio St. 215 [54 N. E. Rep. 89]; Ohio & M. Ry. v. Punt, 6 Dee. Re. 758 (7 Am. L. Ree. 739) ; Kuchenmeister v. O’Conner, 8 Dec. Re. 502 (8 Bull. 257) ; Kuchenmeister v. O’Conner, 9 Dec. Re. 159 (11 Bull, 120) ; Grieve v. Railway, 65 N. J. Law 409 [47 Atl. Rep. 427.]
    Negligence of the defendant company in permitting plaintiff below to ride upon the rear bumper. Kinkade v. Railway, 9 Misc. 273 [29 N. Y. Supp. 747]; Spooner v. Railway, 54 N. Y. 230 [13 Am. Rep. 570]; Werle v. Railway, 98 N. Y. 650; Bruno v. Railway, 147 N. Y. 711 [42 N. E. Rep. 722] ; Pollingsworth y. Railway, 12 Circ. Dec. 100 (21 R. 536) ; Vail v. Railway, 7 Circ. Dec. 28 .(13 R. 494) ; Mt. Adams & E. P. Inc. P. Ry. y. Isaacs, 10 Circ. Dec. 49 (18 R. 177) ; Schwartz v. Railway, 4 Circ. Dec. 272 (8 R. 484), affirmed, Cincinnati St. Ry. v. Schwartz, 33 Bull. 131.
   DUSTIN, J.

Leroy Muns, the defendant in error, a minor sixteen years of age, with a “transfer” in his hand, mounted the rear “bumper” of a Columbus traction car. Before the ear started, another car belonging to plaintiff in error and in charge of its officers and agents, but unmanageable by reason of a broken brake and a burnt-out fuse, rapidly descended a decline in the rear of the ear upon which Muns was standing, and bumped into it. Just before the collision Muns attempted to step to the ground and escape danger but was caught, and one leg so injured that it had to be amputated.

Through his guardian he brought suit against the railway company for damages, alleging that the defendant negligently and wilfully ran the colliding car so as to cause the injury of which he complained.

There was no allegation of defective machinery or appliances but testimony was admitted tending to show that the brake originally manufactured for a short ear, had been spliced so as to make it do for this long car, which was composed of two short ears; and, that it was too small and not properly welded.

No objection was made to that testimony, presumably upon the theory that it tended to show negligent running of the car, greater care being required on account of light and defective appliances.

If that testimony was admissible under the pleadings, the jury was warranted in finding that the company was negligent in attempting to run that long and heavy car with a light and defective brake. Aside from the brake, we think the great weight of the evidence shows that the officials of the company did all in their power to stop the descending car and to give warning to Muns of its approach, by shouting and ringing the gong; and we think the court below properly charged the jury that there was no evidence tending to show willful negligence.

We think further that the boy, by mounting the bumper, which was not a place for passengers, nor a step or platform en route to a place for passengers, lost his rights as a passenger do the high, care which would have been due him as such.

It was, moreover, a place of manifest danger, else the bumper would not have been constructed. It amounts to a red flag of warning to all concerned. The peril was such as might naturally result and reasonably have .been expected. Nieboer v. Railway, 128 Mich. 486 [87 N. W. Rep. 626]; Bard v. Traction Co. 176 Pa. St. 97 [34 Atl. Rep. 953; 53 Am. St. Rep. 672].

An attempt was made to show by isolated instances that riding on the bumper was a' custom, permitted by the company, and known do Muns. Objections to that mode of proving a custom should have been sustained. Muns testified that he and his companions had ridden on bumpers with the permission o¿ certain conductors, but.it did not appear that this conductor was one of them; or that he ever saw said conductor. On the contrary Muns says that he did not see the conductor and had not delivered his transfer. So that he did not rely on any past experience with this official.

Furthermore, if it had been a custom and proven so to be, it was one of such manifest negligence that it would not be recognized in law as binding upon anybody. Customary negligence is unknown to the law. Chicago W. D. Ry. v. Klauber, 9 Ill. App. 613, 614; Hamilton v. Railway, 36 Iowa 31, 32; Ohio & Ind. Torpedo Co. v. Fishburn, 61 Ohio St. 608, 620 [56 N. E. Rep. 457]; Hickey v. Railway, 96 Mass. (14 Allen) 429, 433.

Still further it appears from the manifest weight of the evidence that there was room in the car and that Muns made no examination of the situation and did not attempt to get upon the steps or platform. By the testimony of himself and others it also appears that after he had mounted the bumper, passengers' were still getting on and off the car. But, if the ear had been crowded to the utmost, it was his duty to wait a reasonable time for another car upon which there was room. His companion — who had obtained a place on the ear step, but alighted after the accident — found room upon the next succeeding car, where his transfer was available.

So it seems to be clear that Muns was guilty of negligence contributing directly to the accident, and cannot recover.

We think the court erred,in instructing the jury that a custom of riding on the “bumper” with the assent of the-conductor would excuse Muns for taking that position, and especially where the court says, on page 482, if they found an assent “on this particular occasion,”— there being no evidence whatever as to such assent.

For the above errors and in not sustaining a motion for a new trial, the judgment of the common pleas court is reversed and the cause remanded.

Wilson and Sullivan, JJ., concur.


author: MARVIN, J. (Orally.)

text:
    JUSTICE OF THE PEACE — TRIAL.
    [Cuyahoga (8th) Circuit Court,
    November 7, 1904.]
    Hale, Marvin and Winch, JJ.
    John B. Stark v. William Treat et al.
    Justice of Peace may Hear Evidence and Arguments Outside of his Township by Consent.
    A justice of the peace who' has jurisdiction of the subject-matter of a civil action, may by consent of all the parties, hear the evidence and arguments of counsel outside of the township in which he resides and for which he was elected. Such procedure is not, in such case, obnoxious to Lan. R. L. 914 (R. S. 582) defining the jurisdiction of justices ■ in civil actions.
    Appeal from Cuyahoga common pleas court
    William Howell, for plaintiff.
    J. W. Sykora, for defendants, cited:
    Laning B. L. 914 (B. S. 582) ; Butt v. Green, 29 Ohio St. 667; Mason v. Alexander, 44 Ohio St. 318 [7 N. E. Bep. 435]; Collins v. Bingham, Bros. 12 C. D. 825 (22 B. 533) ;■ Mobile v. Emanuel, 42 U. S. 95.
   MARVIN, J. (Orally.)

The defendant, Treat, was a justice of the peace of Brooklyn township, in this county. The defendant, Bell, was a special constable acting for said justice of the peace. The defendant brought a suit against the plaintiff, Stark, before the defendant, Treat, the justice of the peace.

^ The papers, summons and the like, in this suit were issued by said justice in Brooklyn township, where he lived, and in which township he was elected.

By consent of all the parties to the ease, the testimony was taken in the township and city of Cleveland, in the same county. The judgment was entered upon the docket of the justice of Brooklyn township. Whether the actual writing was done in Brooklyn township or not does not appear. It is immaterial. The only question is: May a justice of the peace, having jurisdiction of the subject-matter, by consent of all the parties, hear the evidence and the arguments outside of the township in which he lives and for which he was elected.

The statute on the subject is Lan. R. L. 914 (R. S. 582), which provides :

“The jurisdiction of justices of the peace, in civil cases, unless otherwise directed by law, is limited to the township wherein they have been elected, and wherein they reside; but no justice of the peace shall hold court outside the limits of the township for which he was elected. ’.

The statute, as it now reads, was enacted on April 19, 1898 (93 O. L. 146). Prior to that, the section read exactly as it now reads, with the exception of the words, “But no justice-of the peace shall hold court outside of the limits of the township for which he was elected. ’ ’ That sentence was added as an amendment to the statute as it was before. Should it be held that the statute as it now is prohibits a justice of the peace from hearing the evidence in a case and the arguments of coun'sel in a township other than his own, where the parties consent? It seems to us that the addition of these words to the section make it mean nothing other than it meant before. The justice had no jurisdiction before outside of his township and it is only by virtue of statutes giving jurisdiction that courts have jurisdiction. It is a well-known fact that this court while sitting in this county has jurisdiction in Cuyahoga county only, and yet it is not an unusual thing for this court by agreement of parties, to hear the evidence and arguments in appeal cases, and to hear the arguments in proceedings in error in this county of cases pending in other counties. It is not unusual that parties request that the hearing be here; and we have in the same way heard in Summit county cases pending in Medina county.

There is a provision in the statutes that cases may be certified from one county to another, but not acting under that but simply by the consent of the parties the case may be heard in another county; it has been done again and again. It is not an extraordinary thing. I have in mind now a case which lasted a considerable length of time, where a judgment of the court of common pleas of the second subdivision of this judicial district was heard by a judge of that subdivision in this county, which is, I think, the third subdivision. When the parties have all consented that the hearing of a case shall be in a given place, there seems to be no good reason why such hearing should not be treated as a hearing within the limits of the territory in which the court has jurisdiction. There are a number of authorities that go to support the proposition that parties may consent to a hearing outside of the territorial jurisdiction of the court. A ease directly in point is found in Cheesman v. Hart, 42 Fed. Rep. 98. The facts in the case were these:

A judge of the district court of the United States was assigned by one of the judges of the Supreme Court of the United States to sit in a circuit other than that in which he resided, to wit, in the district of Colorado. That was lawful, and the judge could be assigned so to sit. He went to Colorado and heard the case in that district. Motion for new trial was made. He went home' to Nebraska, outside of the'district of Colorado, and, by consent of all the parties, heard the motion for a new trial at his own home. His jurisdiction was thereafter questioned, and this language was used by the court, page 105:

“My jurisdiction to'pass upon this motion is called in question on the ground that I am now acting under the order of Judge Brewer, which sent me to Colorado to hold circuit court in aid of the district judge. It was the pending litigation between these parties mainly which induced Judge Brewer to send me to Colorado, partly owing to the fact that Judge Hallett, wished to be relieved from sitting in the cause on account of his relation to some of the parties. The trial of the cause would have been incomplete without a final disposition of the motion for a new trial. The right to try the principal cause carries with it the incident. Had I remained at that court until the coming in of the motion for new trial, four days after the verdict, as I might well have done, no question could possibly arise as to my jurisdiction to pass upon the motion. Equally true must it be that I might have returned to Colorado after the motion was filed, and taken it up and decided it. Counsel for both parties having agreed to waive the necessity or burden of such trip to me, my right to pass upon this motion must be viewed as if I had gone to Colorado, or remained there in the first instance, to hear the motion.” >

We think that reasoning is good; that, applied to this case, the justice of the peace hearing the evidence and the argument in this township, by the consent of the parties, it is to be treated as having been heard in the township of Brooklyn and the case is to be treated as though tried in the township of Brooklyn. The suit here is brought to enjoin the justice, the constable and the plaintiff in the original action, from taking any steps toward the enforcement of judgment obtained by plaintiff against the defendant, Stark. We think the petition should be dismissed. That will be done.

Hale and Winch, JJ., concur.


text:
    DEEDS — -COVENANTS—TAX LIENS.
    [Hamilton (1st) Circuit Court,
    March, 1905.]
    Jelke, Swing and G-iffen, JJ.

      Fountain Square Theatre Co. v. Elizabeth C. Pendery.
    1. Gbant or "Am. Right, Title and Interest” to Real Estate Conveys onlí such Interest as Grantor Has, etc.
    A grant of “all the right, title and interest” of the grantor in and to certain real estate, without granting the land itself, conveys only such interest as the grantor has at the time of the conveyance.
    3. Covenant against Incumbrances not Broken by Existing Tax Lien, when.
    A covenant contained in a deed whereby the grantor conveys “all his right, title and interest” in and to certain property, that the premises are free and clear of all incumbrances whatsoever, and that grantor will -forever warrant and defend the same unto the grantee, etc., relates only to the right, title and interest conveyed, and not to the land itself, and is not, therefore, broken by a lien for taxes existing against the property at the time of the execution and delivery of the deed.
    Error to Hamilton common pleas court.
    D. D. Woodmansee, for plaintiff in error.
    ' Breach of covenants of title. Funk v. Cresswell, 5 Iowa 62; Loomis v. Bedel, 11 N. H. 74; Hárrison v. Boring, 44-Tex. 255; Long v. Moler, 5 Ohio St. 272; Burr v. Lamáster, 30 Neb. 688 [46 N. W. Rep. 1015; 9 L. R. A. 637; 27 Am. St. Rep. 428]; Stambaugh v. Smith, 23 Ohio St. 584; Craig v. Heis/ 30 Ohio St. 550; Rawle, Covenants 270, 281-296; Coburn v. Litchfield, 132 Mass. 449; Braman v. Bingham, 26 N. Y. 483; Foote v. Burnet, 10 Ohio 317 [36 Am. Dec. 90].
    F. H. Kunkel, for defendant in error.
    Where there is merely a conveyance of the “right, title and interest” of grantor in and to premises described in a deed, there is no liability on the part of the grantor for outstanding liens or interests. 8 Am. & Eng. Enc. Law (2 ed.) 71; Devlin, Deeds Sees. 27 and 931; Tiedeman, Real Prop. See. 858; Rawle, Covenants Sees. 250, 298; Hoxie v. F-inney, 82 Mass. (16 Gray) 332; Allen v. Holton, 37 Mass. (20 Pick.) 458; Blanchard v. Brooks, 29 Mass. (12 Pick.) 47; Sweet V. Brown, 53 Mass.- (12 Mete.) 175 [45 Am. Dee. 243] ; Reynolds v. Shaver, 59 Ark. 299 [27 S. W. Rep. 78; 43 Am. St. Rep. 36]; Bumpass v. Anderson, 51 S. W. Rep. 1103 (Tex. Civ. App.); Young v. Clippinger, 14 Kan. 148-, Shumaker v. Johnson, 35 Ind. 33; Ballard v. Child, 46 Me. 152; Lamb v. Wakefield, 14 Fed. Cas. 1040 [1 Sawy. 251]; Bigelow, Estoppel (5 ed.) 402; Stockwell v. Couillard, 129 Mass. 231; Buckner v. Street, 15 Fed. Rep. 365; McNear v. McComber, 18 Iowa 12; Bates v. Foster, 59 Me. 157; see Hanrick v. Patrick, 119 U. S. 156 [7 Sup. Ct. Rep. 147; 30 L. Ed. 396], last syllabus and opinion by Judge Mathews.
    Even though the grantor had not limited the grant of “all her right, title and interest” in the property itself, the deed containing no covenants of title, seizin or right to convey, and merely covenanting against the acts of the grantor or those claiming by, through or under her, there can be no recovery for the breach of the covenants where the lien was not created by the grantor. Tiedeman, Real Prop. Sec. 858; Buckner v. Street, 15 Fed. Rep. 365; Lamb v. Kamm, 14 Fed. Gas. 1014 [1 Sawy. 238] ; 14 Am. Dig. (Cent, ed.) 86; Harrison v. Boring, 44 Tex. 255; Derrick v. Brown, 66 Ala. 162; Shuler v. Hardin, 25 Ind. 386; Headrick v. Wisehgrt, 41 Ind. 87; Steele v. Bank, 79 Iowa 339 [44 N. W. Rep. 564; 7 L. R. A. 524; 18 Am. St. Rep. 370]; Thorn v. Newsom, 64 Tex. 161 [53 Am. Rep. 747]; Villa v. Rodriguez, 79 II. S. (12 Wall.) 323 [20 L. Ed. 406]; Boone, Real Prop. Sec. 324; Mann v. Best, 62 Mo. 491.

       Affirming Fountain Square Theatre Co. v. Elizabeth C. Pendery, 15 Dec. 411.

   GIFFEN, J.

The original cause of action was founded upon a covenant of special warranty in a deed of certain real estate, which by the granting clause conveyed.“all the right, title and interest” of the plaintiff, with a covenant:

‘ ‘ That said premises are free and clear from all incumbrances whatsoever by, from, through or under the said grantor and that she will forever warrant and defend the same with the appurtenances unto the said, The Fountain Square Theatre Company, its successors, and assigns, against the lawful claims of all .persons claiming by, from, through or under the grantor herein.”

The alleged breach of the covenant consisted in a fáilure to pay the taxes amounting to $556.16, which became a lien while the grantor was the owner of the premises and were a subsisting lien at the time the deed was executed and delivered.

It must be conceded that a grant of all the right, title and interest eonveys only such interest as the grantor has . at the time of the conveyance. In this case, it was an estate in fee simple, subject, however, to the lien of the state for taxes, but it is claimed that the covenant related not to the right, title and interest, but to the land itself, and therefore made the grantor liable for any subsisting incumbrance. This position is supported by the case of Funk v. Cresswell, 5 Iowa 62, in which the following proposition is announced:

“Where a party eonveys all his right, title and interest in the lands described in the deed and covenants to warrant and defend the prem- ' ises against all lawful claims arising under him,. the covenant refers to the lands described and not to the right and title of the grantor.”

There is much force also in the suggestion contained in the case of Lull v. Stone, 37 Ill. 224, 228, to wit:

“It is difficult to see, if this be the true construction of such deeds, with what view the covenants were inserted, unless to deceive the grantee with the idea that he was getting covenants upon which he could safely repose for the security of his title, but which a narrow and technical construction would render utterly nugatory, on the day of trial.”

It may be said in answer, however, that such covenant would protect the grantee against a warranty deed or a mortgage executed subsequently by the grantor and recorded prior to the first deed, and it is probable, that such acts as these,. which would be a fraud upon the grantee, the covenant is intended to cover. In the case of White v. Brocaw, 14 Ohio St. 339, the second proposition of the syllabus is as follows:

“Where in a deed, in the ordinary form of bargain, sale and release, and which purports only to convey to the grantees ‘all the estate, right, title, interest, claim and demand, both in law and equity,’ of the grantors, ‘of, in and to the said premises, and every part thereof,’ containing no recital nor other description whatever, of any particular interest owned or possessed by the grantors, or intended to be conveyed, a covenant is inserted, by which the grantors agree to ‘warrant and forever defend the said premises against all persons claiming or to claim, by, from or under them, their heirs or assigns, ’ such covenant is only coextensive with the grant, and binds only the vested interests of the grantors in the property at the time, and does not extend to an after-acquired title.”

In that case, the grantors agreed to warrant and forever defend the said premises and not the right, title and interest and although the case of Funk v. Cresswell, supra, had been decided, it was not followed by our Supreme Court, but it relied, among others, upon the case of Blanchard v. Brooks, 29 Mass. (12 Pick.) 47, 67, in which it is said:

“The grant in the deed is of all his right, title and interest in the land, and not of the land itself, or any particular estate in the land. The warranty is of the premises, that is, of the estate granted, which was, all his right, title and interest. It was equivalent to a warranty of the estate he then held or was seized of, and must be confined to estate vested. A conveyance of all the right, title and interest in lands, is certainly sufficient to pass the land itself, if the party conveying has an estate therein, at the time of the conveyance; but it passes no estate which is not then possessed by the party. ’ ’

A case nearer in point upon the precise question before us is that of Hoxie v. Finney, 82 Mass. (16 Gray) 332, the syllabus of which is as follows:

“In a deed of all the grantor’s ‘right and title to one undivided third part of’ land bounded and described, covenants that he is seized in fee of the granted premises, that they are free from all incumbrances, and that he will warrant them to the grantee against the lawful claims of all persons, are limited in effect by the description of the subject granted, and are not broken by an eviction of the grantee under an incumbrance previously created by the grantor.”

The purport of these decisions is, that the covenant of warranty must be limited to the interest of the grantor in the property at the time of the conveyance, and if the property is burdened with an incumbrance, the grantee takes it subject thereto.

In this case, the taxes became a lien by operation of law, and the amount thereof could easily be ascertained from the records in the auditor’s office, and no deception or hardship was imposed upon the grantee.

We are of opinion, therefore, that the petition did not state a good cause of action, and the court of common pleas properly sustained the demurrer thereto.

Jelke and Swing, JJ., concur.


text:
    ATTACHMENT AND GARNISHMENT — NECESSARIES.
    [Cuyahoga (8th) Circuit Court,
    February 21, 1905.]
    Marvin, Winch and Henry, JJ.
    W. A. Hare v. W. Cook et al.
    1. Indebtedness for Rent not Necessarily Claim for Necessaries within Meaning of Attachment Laws.
    The mere fact that one is indebted for rent is not sufficient to raise a legal presumption that the claim is for necessaries, within the meaning of the attachment laws of Ohio.
    2. Laning R. L. 10071 (R. S. 6494) not Unconstitutional.
    Laning R. L. 10071 (R. S. 6494), which secures to the defendant in attachment the right to appeal from the decision of a justice of the peace in overruling a motion to discharge the attachment, is not unconstitutional simply because it makes no provision for an appeal by plaintiff in case the motion is maintained.
    3. Motion to Discharge Attachment under Lan. R. L. 10071 (R. S. 6494) must Set Forth Reasons, etc.
    The motion for discharge of an attachment made under favor of Lan. R. L. 10071 (R. S. 6494), must set forth the grounds upon which the defendant relies to have the attachment dissolved; and on the hearing of such motion the evidence must be confined to the grounds stated. Hence, an affidavit containing nothing which tends to support the grounds set forth in the motion, is inadmissible in evidence.
    Error to Cuyahoga common pleas court.
    Miller & Linder, for plaintiff in error:
    Whether on an appeal, under Lan. R. L. 10071 (R. S. 6494), from the decision of a justice of the peace overruling a motion filed to discharge an attachment, evidence may be heard on other grounds than those assigned in the original motion filed before such justice. Rogers v. PrushansJcy, 13-23.0. C. C. 271; Remington v. Harrington, 8 Ohio 507.
    J. F. Dowling, for defendants in error.
   MARVIN, J.

Suit was brought by Hare against Cook before a justice of the peace, and upon an affidavit filed by Hare an order of attachment was issued. The grounds stated in the affidavit for the attachment are:

“That the defendants are justly indebted to the plaintiff in the sum of $24 for rent; that said claim is just and lawful; that he believes said plaintiff ought to recover thereon the amount of $24, and that the property about to be attached is not exempt from execution; that the claim on which judgment is sought is contracted for since April 26, 1898, and that said "defendant is about to convert his property or a part thereof into money for the purpose of placing it beyond the reach of his creditors. ’ ’

It will be noticed that the only statutory ground stated in the affidavit for the attachment is, that defendant is about to convert his property, or a part thereof, into money for the purpose of placing it beyond the reach of his creditors.

In passing, it may be said that there are two defendants, and that the affidavit does not disclose that the two defendants are about to perpetrate this fraud, nor which of the two it is who is about to do so. However, probably this is not material. It may be assumed that the language is to be treated as though in the plural, charging the defendants with the fraudulent purpose.

If it be urged that because the statute allows an attachment under certain circumstances for necessaries, and that this affidavit states that, this claim is for rent, that therefore it is to be assumed that it is for necessaries, it is sufficient to say that the fact that one is indebted for rent falls far short of showing that one is indebted for necessaries. Rent may be for a saloon, for a store, for a hotel, and for so many other things that would not be held to be necessaries that we cannot assume-that one is indebted for necessaries simply because he is indebted for rent. The attachment having been allowed by the justice, a motion was. made for its dissolution, which was in these words, after entitling the case:

‘ ‘ Now comes W. Cook, one of the defendants in the above action, and appearing for the purpose of this motion only, moves the court to dismiss the, attachment granted in the above action for the following reasons, to wit: First, that the claim on which said attachment is based is not one for necessaries; second, that an unlawful joinder of parties defendant has been made in the above action.”

The defendant, Cook, filed an affidavit in support of this motion. With the evidence of these two affidavits before him, the justice overruled the motion, whereupon the defendants appealed from the decision of the justice upon this motion. Under favor of Lan. R. L. 10071 (R. S. 6494), the language of the section referring to this matter reads, speaking of the motion to dissolve the attachment:

“Which if overruled may be appealed by the defendant to the court- of common pleas, if in session, or to a judge, thereof in vacation,, by giving notice to that effect to the justice of the peace, but no bond, shall be required.
“Upon such notice of appeal being given, tbe justice of the peace shall forthwith transmit to the clerk of the court of common pleas all the original papers; and thereupon within three days from such notice of appeal, or upon such further time as may be for good cause allowed, said court or judge shall hear and determine said motion in the same manner as though it was originally brought in said court of common pleas, and upon the final hearing said court or judge shall forthwith transmit the judgment with said original papers to said justice of the peace, which judgment shall be entered upon the docket of said justice of the peace as the final determination of said motion.”

The question of whether this statute authorizing an appeal by the defendant from the decision of the justice of the peace upon the motion when no appeal is allowed to the plaintiff in case the motion shall be decided against him, is constitutional, was suggested in this case. We have just determined that question in another case, holding that no provision of the constitution is violated by the statute. Nothing more on that subject need be said here.

Upon the hearing in the court of common pleas, the defendant Cook was permitted to introduce an affidavit in these words:

“W. Cook, the defendant in the above entitled action, being first duly sworn, deposes and says that he is not about to convert his property nor any part thereof into money for the purpose of placing it beyond the reach of his creditors.”

To the introduction of this affidavit objection was made and overruled by the court, and exception is taken to this ruling. It will be noticed that nothing in this affidavit tends to support either of the claims made in the motion. Those claims, as already quoted, are:

“First, that the claim on which said attachment is based is not for necessaries; second, that an improper joinder of parties defendant has been made in the above action.”

It was the decision made by the justice of the peace upon thin motion that was appealed from. It was that motion which the court of common pleas was, because of the appeal, required to hear and determine. Evidence bearing upon that motion was admissible. No other evidence was admissible. Unless, therefore, it can be said that the motion to dissolve the attachment which was made before the justice is to be treated as a motion without specifying any ground, the court erred in admitting this affidavit. One of the provisions of Lan. R. L. 10071 (R. S. 6494) is that, “In any case the defendant may make a motion before the justice of the peace to dissolve the attachment. ’ ’

Nothing is here said as to whether ground for such dissolution is to be set out in the motion, but it is believed that such has been the universal practice, and that such grounds must be stated in the motion.

In Swan’s Treatise (20 ed.) 442 and following, the nature of the dissolution of attachment by motion is treated of and the form of notice to be given to the plaintiff in such case is given on page 443, being form No. 198. This form of notice reads:

“In the ease of attachment of A B against C D pending before G H, justice of the peace, I shall make a motion on the-----day of-------, at 10 o’clock a. m., or as soon thereafter as I can be heard to discharge the attachment * * * and on the following grounds. (Here state the grounds.) ”

The form of docket entry, being form No. 199, on page 445, has these words:

“I thereupon heard said motion and do find (here affirúi or negative the grounds of the motion stated in the notice according to the proofs, etc.).”

In the case of Remington v. Harrington, 8 Ohio 507, 508, the first head note reads:

“In motions for a new trial, points not stated in the motion are not open for discussion in the court in bank.”

On page 508 this language is used by Judge Wood in the opinion:

“Two questions arise in this case for decision: 1. Was the testimony offered by the plaintiff, objected to by the defendant, and admitted by the court, proper for the consideration of the jury ? * * * The first point is not embraced in the motion, and to the points there made, the discussions of counsel, should, in ordinary cases, be confined, because they are the only notice to the opposite party of the questions to be raised, and constitute the substratum on which the opinion of the court rests.”

In the case of Everett v. Sumner, 32 Ohio St. 562, the first paragraph of the syllabus reads:

“The findings of a court or of a jury, upon issue of fact, are not subject to review on proceedings in error, except where it appears from the record that a motion for a new trial was made on the ground that the verdict is against the evidence, and that such motion has been overruled.”

While these cases are not directly in point, the reason for the ruling on a motion for a new trial applies with equal force to the motion under consideration here. The plaintiff had notice that a motion for the dissolution of the attachment would be heard upon the grounds .stated in that motion. Proper care on his part would require of him to prepare to meet the grounds stated in the motion and would not require of him to be prepared to meet any other grounds.

In Rogers v. Prushansky, 13-23 O. C. C. 271, after an appeal had been taken to the court of common pleas upon the overruling of the motion to discharge an attachment, a new motion was filed setting out a ground for such dissolution other than was set out in the motion already on file, and the court held that such new motion could not be filed. On page 273, this language is used in the opinion:

“But clearly the court in this case had no authority to entertain the filing of a new motion, or consider anything but the motion filed before the justice of the peace, because at least this court has heretofore •held, in another case, that this amended Sec. [Lan. 10071] 6494 Rev. Stat., was intended not to give jurisdiction by appeal to the court of common pleas of the entire case, but simply for the purpose of determining the motion for the discharge of the attachment, and having done so, to certify the case back to the justice of the peace.”

The reasoning which would prevent a new motion from being filed in the court of-common pleas because of the fact that it set up a new ground for the discharge of the attachment would apply equally to' prevent the introduction of evidence upon the hearing of the motion already filed, which evidence did not tend to sustain the grounds set out in such motion.

We hold, therefore, that in permitting the introduction of the affidavit filed in the court of common pleas there was error to the prejudice of the plaintiff in error, and for that reason the judgment of the court of common pleas is reversed.

Winch and Henry, JJ., concur.


text:
    MISTAKES — PAYMENTS—BILLS AND NOTES.
    [Cuyahoga (8th) Circuit Court,
    February 21, 1905.]
    Marvin, Winch and Henry, JJ.
    C. W. Reep et al. v. S. A. E. Lyman.
    Note Reformed ween Mistake Clearly Appears from Inspection without Further Evidence, etc.
    Where it clearly and convincingly appears from an inspection of a note, payable in installments, that there was a mutual mistake in fixing the dates of the respective payments, the plaintiff is entitled to a reformation so as to express the true dates without showing the mistake other than by the note itself.
    Error to Cuyahoga common pleas court.

      Miller & Linder, for plaintiff in error-:
    The court erred in overruling the motion for a judgment at the conclusion of the plaintiff’s testimony. Stewart v. Gordon, 60 Ohio St. 170 [53 N. E. Rep. 797]; Northwestern Ohio Nat. Gas Co. v. Tiffin {City), 59 Ohio St. 420 [54 N. E. Rep. 77].
    A pa^ty seeking reformation of an instrument must show that he was without negligence in the matter. Miller v. Bailway, 162 Mo. 424 [63 S. W. Rep. 85] ; Persinger v. Chapman, 93 Va. 349 [25 S. E. Rep. 5]; 24 Am. & Eng. Ene. Law (2 ed.) 657.
    In order to warrant reformation, an instrument must be based upon a consideration. Mudd v. Dillon, 166 Mo. 110 [65 S. W. Rep. 973]; Willey v. Hodge, 104 Wis. 81 [80 N. W. Rep. 75; 76 Am. St. Rep. 852]; 24 Am. & Eng. Enc. Law (2 ed.) 653.
    v Laubscher & Kees, for defendant in error.
   MARVIN, J.

Suit was brought by Lyman against Thomas Reep, Alfred Reep, and C. W. Reep, the petition setting out that the defendants executed and delivered to him on January 4, 1898, a promissory note of which the following is a copy:

“$278.88. Cleveland, Ohio, January 4, 1898.

We, or either of us, for value received promise to pay to S. A. E. Lyman or order the sum of two hundred and seventy-eight, eighty-eight hundredths dollars, with interest from date above at 6 per cent per annum, payable as follows:

“Cash payments, fifty dollars January 4, 1899; fifty dollars January 4, 1890; fifty dollars January 4, 1891; fifty dollars January 4, 1892; fifty dollars January 4, 1893; twenty-eight and 88-100 January 4, 1894.
“Thomas Reep,
“Alfred Reep,
“C. W. Reep.”

That by mutual mistake of all the parties to said note said dates were erroneously named in said note as “1890 for 1900, 1891 for 1901, 1892 for 1902, 1893 for 1903 and 1894 for 1904.”

The petition shows that on said note the following payments had been made: January 28, 1899, $16.50 interest and $25 principal; February 15, 1899, $24.40 upon said principal; January, 1900, by credit for work, etc., the sum of $50, and on April 3, 1900, by credit for berries the sum of $50, and averring that there was still due upon the note the sum of $152.08 with interest thereon at 6 per cent per annum from January 4, 1901.

The prayer of the petition is for a reformation of the note to express the true dates when said installments became due and payable, and that plaintiff have judgment for the amount still due upon the note.

The defendant, Thomas Reep, is in default, but the defendants, Alfred Reep and C. W. Reep, file a joint answer in which they say that:

“The note sued upon and set forth in the petition was one given to the plaintiff in payment of an obligation then due and payable and owing to the said plaintiff by the defendant, Thomas Reep; that neither of these answering defendants were in any wise indebted to said plaintiff and that neither signed said note as principal but as indorsers for the accommodation of said plaintiff, for which they received no consideration whatever.”

To this answer the plaintiff replies, denying that the defendants, Alfred Reep and C. W. Reep, signed said note “for the accommodation of plaintiff, for which they received no consideration whatever.”

With the pleadings in this situation the case went to trial. The plaintiff seemed to suppose that a burden rested upon him to show by means other than the note itself that the dates of payment set out in the note were so written by the mutual mistake of the parties thereto. We are inclined to think otherwise. We think an inspection of the note is clear and convincing evidence that there was a mistake in the fixing of the dates of payment, and hence the rulings made by the court upon the evidence offered by the plaintiff on that subject need not be considered, for without any of such evidence the court would have been justified in finding that such dates were written in the note by the mutual mistake of the parties.

The defendant, Charles Reep, went upon the stand and testified, among other things, that he and his brother, the defendant, Alfred Reep, signed the note as sureties for an indebtedness of their father, Thomas Reep, to Lyman. He testifies further that he knew that he was signing the note when he signed it; that his father asked him to sign it, and that he didn’t read it. Only this evidence is referred to here because, as we look at the case, the other evidence offered did not bear upon the issues made. No effort was made to show that other payments were made upon the note than those credited in the petition. If the dates fixed for the payment by the terms of the note were so written by the mutual mistake of the parties and if from the note itself one can determine the real dates intended to be fixed, the plaintiff was entitled to the reformation sought. Clearly that can be determined. No man with any experience in business would doubt for a moment that The dates were intended to be those stated in the petition. The times fixed for the payments, all except the first $50 were in the past, and it requires but a reading of the note to satisfy whoever reads it that a mistake of just ten years was made as to the time fixed for these payments. The first payment was to be made on January 4, 1899. That would be just one, year after the making of the note. The other payments are one year apart, and as specified in the note, January 4, 1889 and so on each year including January 4, 1894. Who could read that and not know that it was intended to make that date which reads 1890 read 1900, and so on as to each of them.

In support of this we cite the case of Evans v. Steel, 2 Ala. 114. The case is directly in point. The note in suit was dated May 18, 1837, and by its terms was payable on January 1, 1040. The trial court was requested to charge the jury that unless the plaintiff produced evidence to show that the words, eight hundred, were omitted by mistake in the first line of the note, a verdict could not be returned for the plaintiff. This the court refused, and it was assigned as error. In the opinion of the Supreme Court the judgment of the court below was affirmed, and this language is used, page 116:

“The note was due on January 1, 1840. The omission of the words, eight hundred, must have taken place through accident or by design; but, in either event, the legal construction of the note would be the same. The time of payment, when considered in connection with the date, divests the note of any uncertainty, and it unquestionably means, what the jury have ascertained to be its meaning by their verdict. It was entirely unnecessary to submit this question to a jury, but the charge given them, contains a proper exposition of the law, as connected with the circumstances of this case.”

Entertaining these views, the judgment of the court of common pleas is affirmed.

Winch and Henry, JJ., concur.


text:
    BILLS AND NOTES — PARTIES—PLEADINGS.
    [Cuyahoga (8th) Circuit Court,
    February 21, 1905.]
    Marvin, Winch and Henry, JJ.
    Independent Coal Co. v. First National Bank.
    1. Holder of Note by Indorsement Prima Facie Owner, and may Sue Thereon.
    The holder of a promissory note indorsed in blank by the payee, is prima facie the owner thereof, and entitled to sue thereon in his own name; and the introduction of the note in evidence by the holder thereof, in an action brought to enforce its collection, makes a prima facie case in his favor.
    2. Holder of Note for Collection only cannot Sue in Own Name.
    An action cannot be maintained upon a promissory note by a party to whom it has been transferred by indorsement or delivery for the purpose of collection only. Such holder is not the real party in interest, within the meaning of Lan. R. L. 8508 (R. S. 4993).
    3. Defendant Need not Show that Valid Defense Exists against Payee, when.
    Where the evidence shows that plaintiff is not owner of the note sued upon, the defendant is not required to go further and show that a valid defense exists in his favor against the payee, in order to defeat a recovery.
    4. Immaterial Amendment Required by Court not Prejudicial, etc.
    The action of the court in requiring the defendant to amend his answer in such a way as to add nothing to the defense clearly meant to be made by the original answer, is not prejudicial.
    5. Exclusion of Evidence Tending to Show Immaterial Fact not Prejudicial.
    The exclusion of evidence offered by defendant because the fact sought to be proved was one which defendant did not need to prove to defeat the action, is not prejudicial.
    6. Silence of Cashier not Evidence that bank does not Own Note, when.
    The fact that the payee of a note stated to the maker in the presence and hearing of the cashier of the plaintiff bank, that he, payee, was going to sue on the note, and that the cashier made no objection and made no claim that the bank was the owner of the note, is no evidence that the bank was not the real owner of the note.
    Error to the common pleas court.
    Kerruish, Chapman & Kerruish, for plaintiff in error.
    Hamilton, Hamilton & Smith, for defendant in error.
   MARVIN, J.

Suit was brought by the First National Bank against the Independent Coal Company upon a promissory note. The petition is in the short form authorized by Lan. R. L. 8601 (R. S. 5086).

The note sued upon was in these words:

“$491.81. Cleveland, Ohio, September 24, 1902.
‘ ‘ One month after date we promise to pay to the order of Northern Ohio Coal & Coke Supply Co. four hundred ninety-one and 81-100 dollars at the Woodland Ave. Savings & Loan Co.
“Value received.
(Signed) “The Independent Coal Co.,
“M. Schuerer, Secretary & Treasurer.”
“Indorsed: Northern Ohio Coal &*Coke Supply Co.
“By H. J. Thrasher, Secretary; F. P. Walthour, Manager; C.
N. Quirk, President.
“H. J. Thrasher,
“F. P. Walthour,
“C. N. Quirk.”

To the petition the defendant filed an answer, in which no denial is made of the giving of the note nor of the indorsements made thereon, but avers that such note “was transferred by the payee thereof, the said Northern Ohio Coal & Coke Supply Company, to said plaintiff by mere delivery and for the mere purpose of collection and with the design and for the purpose of accommodating said payee in attempting to avoid and evade the defendant’s set-off and counterclaim against it in the hands of said payee, and the defendant says further by way of answer that said plaintiff’s action is not prosecuted in the name of the real party in interest. ’ ’

With the pleadings in this situation the parties went to trial. The plaintiff introduced the note and rested. Thereupon the defendant moved the court to direct a verdict for it, which motion was overruled, and error is claimed for this action of the court. There was no error in overruling this motion. Whether it was necessary for the plaintiff to introduce the note at all need not here be determined, but surely the note with the blank indorsement of the payee made a prima facie case for the plaintiff. See Osborn v. McClelland, 43 Ohio St. 284 [1 N. E. Rep. 644]. The fifth clause of the syllabus of this case reads:

“In case of the blank indorsement of negotiable paper, the indorsee, who is in possession thereof, is prima facie the owner, and entitled to sue thereon, but this presumption may be rebutted and the rights of the real owner established.”

Later on in the trial the defendant amended its answer, at the suggestion of the court, and interlined the following words:

“Defendant denies any liability on said note, and denies that plaintiff is or ever was the owner of it.”

It in no wise prejudiced the defendant that the court required such amendment to be made, for it added nothing to what the defendant clearly meant to make as a defense in his answer as originally filed. Unless the answer as originally filed was in effect a denial of the ownership of the note by the plaintiff — about which we express no opinion— it was not a good answer.

This amendment having been made, the plaintiff replied, denying all the allegations of the answer except such as are admissions of the allegations of the petition. This amendment to the answer and filing of the reply took place during the trial. The parties then proceeded with the trial, and the defendant introduced as a witness one P. B. Quayle who stated that hé was the manager of the Independent Coal Company, the maker of the note. He was inquired of as to whether he had dealings with the payee of the note, which was shown to be a partnership, and then this question was asked him:

“You may state whether at that time you had a contract with this Northern Ohio Coal Company represented by these men?”

To this question the plaintiff objected, and counsel for the defendant stated that he expected and offered to show that the witness did have a contract; that by virtue of that contract the payee of this note represented by these men are legally indebted to the Independent Coal Company for not having furnished such company coal as they had agreed, by reason of which the coal company had suffered damage. The court sustained the objection, and it is urged that the ruling was erroneous. The question was asked under a misapprehension on the part of counsel for the defendant as to what it was incumbent upon him to show as a defense to the claim made by the plaintiff. It was not necessary that the defendant should show that if suit had been brought by the payee it would have had a defense. It was sufficient that the defendant show that the plaintiff was not the owner of the note. If he succeeded in showing this he made a complete defense to the action, for if the plaintiff was not the owner of the note then it was not the real party in interest as required by Lan. R. L. 8508 (R. S. 4993). Under this section the real party in interest who brings suit upon a promissory note must be the owner of that note. Such suit cannot be maintained by ■one to whom the note has been transferred whether by indorsement or by mere delivery for the. purpose of collection only. Nichols v. Gross, 26 Ohio St. 425; Osborn v. McClelland, 43 Ohio St. 284 [1 N. E. Rep. 644].

‘In the latter ease, this language is used in the opinion, page 295:

“Let it be assumed that this note was negotiable after due, so as to confer upon the indorsee the legal title, and that prima facie he is entitled to recover.
“At common law this authorized the indorsee to sue in his own name, and it was no defense to show he was not the owner.
“By the code the action must be brought in the name of the real party in interest, except in cases of express trust, etc. If, therefore, the indorsee is not the real party in interest, nor the trustee of the real owner of a negotiable note, his action may be defeated by showing that some other person is the owner.”

Numerous authorities are cited in the opinion, and no modification of the rule there laid down has been announced by our Supreme Court since.

A question akin to this was raised in the case of Brown v. Ginn, 66 Ohio St. 316 [64 N. E. Rep. 123]. In this case the suit was brought by, the assignee of several claimants against one Brown, ■ of their several choses in action. The assignee, Ginn, was to receive as compensation for collecting these claims a certain per cent of the amount collected, and it was held in that case that, though the plaintiff had an interest in these claims he was not the real party in interest. ' In the opinion, Judge Spear uses this language, page 321:

“We are aware that the tendency of some courts has been to uphold actions brought upon negotiable instruments, transferred for collection only, on the ground that the plaintiff is the real party in interest, and that there are some authorities which point to that conclusion. Indeed it may be admitted that the trend in some of the code states is in that direction. ’ ’

Surely there is no intimation in this language that Ohio has modified the rule laid down in Osborn v. McClelland, supra, and Nichols v. Gross, supra. It follows, then, as already said, that the defendant was in no wise prejudiced by the ruling of the court excluding the evidence, because the fact sought to be proved was one which the defendant did not need to prove to defeat the action.

Later on, the same witness was asked as to a conversation had between himself and certain representatives of the payee at a time when the cashier of the plaintiff was present, subsequent to the transfer of the note by the payee to the plaintiff. Objection was made to the evidence, and though we are not prepared to say that the reason given for the objection or the reason assigned by the court for excluding the evidence was good, we find no error in the ruling of the court excluding the evidence.

What was sought to be shown by this evidence, as stated by counsel for the defendant, was, that “after this note fell due the payee in company with the cashier of the plaintiff, appeared at the office of this, defendant and together they were anxious to have this matter settled up, and that thereupon and after a long consultation the payee, to wit, Mr. Walthour and Mr. Thrasher, the principal persons in the payee, thereupon said to the manager of the defendant that they then were going to sue that note — the bank were going to sue on this note — and that thereupon the cashier of the bank made no objection or made no claim to be the owner of the note. ’ ’

If the witness had testified to exactly what counsel for the defendant stated he expected him to testify to, it would have had no tendency to show that the plaintiff was not the real owner of the note. It was not sought to show that the cashier representing the plaintiff said anything as to the ownership. Counsel for the plaintiff below and the court, from what appears in the bill, seemed to think that if th‘e cashier of the bank had made a statement to the effect that the bank was not the owner of the note, such statement being made after the note was transferred to the bank, it would not be admissible to prove that the cashier had so stated.

But whatever ruling should have been made, if it had been sought to show some statement of the cashier, no ruling was made on that question because it was not sought to show that the cashier said anything about it, but only that parties representing the payee said in the presence of the cashier that they proposed to sue the note. Did this call on the cashier to say anything? We think not. The circumstances were not such as that the cashier or any one claiming to own the note would be likely to interfere, upon the statement being made by the payee or those representing the payee that they were about to sue the note, to interfere and deny that they had any right to bring the suit. The natural thing was for the cashier under the circumstances to have said nothing; hence the evidence, if admitted, would have availed the defendant nothing. There was therefore no error in sustaining the objection to this evidence.

This disposes of the complaints made, and as we find no error to the prejudice of the plaintiff in error, the judgment of the court below is affirmed.

Winch and Henry, JJ., concur.


author: COOK, J.

text:
    COSTS AND FEES — MAYORS.
    [Guernsey (7th.) Circuit Court,
    April Term, 1905.]
    Cook, Burrows and Laubie, JJ.
    Cambridge (City) v. James W. Smallwood.
    Mayor must Pay into the City Treasury Fees Collected by him eor Violation oe Penal Ordinances.
    Under See. 126 of the municipal code (Lan. R. L. 3228; B. 1536-633), where-the council of the city has fixed the salary of the mayor and also the fees he shall .collect for violation of the penal ordinances of the city, the mayor is required to pay into the city treasury the fees collected by him for the violation of such penal ordinances and upon his failure to do so, the city may recover from the mayor such fees in an action prosecuted for that purpose.
    Error to Guernsey common pleas court.
    W. C. Collins, for plaintiff in error:
    Fees of mayor. Clark v. Lucas Co. (Comrs.) 58 Ohio St. 107 [50 N. E. Rep. 356]; Work v. Massie, 6 Ohio 503; Buckingham v. Railway, 10 Ohio St. 25; Lorain Plank Road Co. v. Cotton, 12 Ohio St. 263; Gottschalk v. Witter, 25 Ohio St. 76; Van Hagan, Ex parte, 25 Ohio St. 426; Shelby Co. (Comrs.) v. Fregó, 26 Ohio St. 488; McVey v. Ohio-University, 11 Ohio 134; State v.'Perrysburg (Mayor), 14 Ohio St. 472; Knox Co. (Comrs.) v. McComb, 19 Ohio St. 320; State v. Franklin Co. (Comrs.) 20 Ohio St. 421; Shunk v. Bank, 22 Ohio St. 508 [10 Am. Rep. 762]; State v. Newton, 26 Ohio St. 200; Allen v. Russell, 39 Ohio-St. 336; Commissioners v. Board of Pub. Works, 39 O. S. 628.
    J. A. Trouette, for defendant in error.
   COOK, J.

The action below was by the city of Cambridge against James W. Smallwood to recover certain fees retained by defendant, as mayor of the city, which it is claimed he should have paid into the city treasury. The petition contains three causes of action:

First. Fees received by him in prosecutions for violation of penal ordinances of the city in which prosecutions the fees were collected by him from the accused.

Second. Fees collected by him from persons to whom he issued' licenses for certain privileges within the city.

Third. Fees paid to him from the treasury of the city in cases of violation of the penal ordinances of the city in which the parties were convicted and sent to the workhouse and the fees could not be collected from the defendants

Demurrers were sustained by tbe court below to each cause of action, petition of plaintiff dismissed at its costs and error' is prosecuted in this court by the city.

The petition in each cause of action avers that the salary of the mayor had been fixed by the council of the city and also that the costs which he should charge in such cases had also been fixed by an ordinance duly passed by council in accordance with Lan. R. L. 3377 (R. S. 1843; B. 1536-790); so that the question is squarely made, whether or not the mayor has a right to have such fees in addition to his salary.

Laning R. L. 3228 (B. 1536-633; 96 O. L. 61, Sec. 126) requires him to pay such fees into the city treasury. That section is as follows:

“Council shall fix the salaries of all officers, clerks and employes in the city government, except as otherwise provided in this act, and, except as otherwise provided in this act, all fees pertaining to any office shall be paid into the city treasury. The salary of any officer, clerk or employe so fixed, shall not be increased or diminished during the term for which he may have been elected or appointed; provided, that the compensation of members of council, if any is fixed, shall be in accordance with the time actually consumed in the discharge of their official duties, but in no event shall exceed $150 per year, each, in cities having a population according to the last or any succeeding federal census, of 25,000, or less, and for every 30,000 additional inhabitants determined as aforesaid, said compensation may be, but shall not exceed, an additional $100 per year each, but the salary shall in no city be greater than $1,200 per annum; and provided further, that the salaries of members of council shall be paid semimonthly and a proportionate reduction in said salaries shall be made for the nonattendance of any member upon any regular or special meeting thereof.”

But it is said Lan. R. L. 3262 (R. S. 1751; B. 1536-643) is authority for his retaining such fees in addition to his salary. That section is as follows:

“All fines and forfeitures which may be collected by the mayor, or which may in any manner come into his hands, and all moneys which may be received by him in his official capacity, other than his fees of office, shall be by him paid over to the treasury of the corporation weekly; and at the first regular meeting of the council in each and every month, he shall submit a full statement of all such moneys received, from whom and for what purpose received, and when paid over; but all fines, penalties, and forfeitures collected by him in state cases shall be by him paid over to the county treasurer monthly. ’ ’

This section is not part of the municipal code as passed October 22, 1902, but existed previous to the adoption of the municipal code and was Sec. 1751 of the revised statutes. It was not expressly repealed in the repealing clause of the act of October 22, 1902, but it will be observed that by 96 O. L. 83, Sec. 200 (Lan. R. L. 3211; B. 1536-854), this See. 1751 is made specially applicable to villages and by implication at least would be made to apply to villages alone, to which class of municipalities Sec. 126 (Lan. R. L. 3228; B. 1536-633) does not apply.

It will furthermore be observed that Sec. 126, Lan. R. L. 3228 (B. 1536-633) distinctly sets forth, “Except as otherwise provided in this act * * * all fees pertaining to any office shall be paid into the city treasury,” referring to the act of October 22, 1902, and showing that the intention of the legislature was not to include the provision of any statute upon that subject previously existing. The evident object and purpose of the legislature no doubt was, that all officers of cities should receive salaries for compensation and not be subject to the temptation of the fee system which is naturally demoralizing and which system the legislature of late years has been trying to abolish.

If we should admit that Lan. R. L. 3262 (R. S. 1751; B. 1536-643), original See. 1751, still applies to cities, yet the result would be the same as these two section are irreconcilable and effect must be given to the one which is later. State v. Halliday, 63 Ohio St. 165 [57 N. E. Rep. 1097]:

“Where the general provisions of a statute and those of a later one * * * are incompatible, the provisions of the latter statute must be read as an exception to the provisions of the earlier statute."” Cincinnati v. Holmes, 56 Ohio St. 104 [46 N. E. Rep. 514],

Furthermore the act of October 22, 1902 (96 O. L. 106), specially provides:

“This act shall Supersede all acts, and parts of acts, not herein expressly repealed, which are inconsistent herewith. ’ ’

It follows that the court of common pleas erred in sustaining the demurrers to the first and third causes of action of plaintiff’s petition and for that reason the judgment of the court below must be reversed and the cause remanded for further proceedings.

As to the second cause of action counsel has referred us to no law by which mayors may charge fees for issuing licenses and we know of none; therefore the mayor had no authority to collect such fees, as he could only collect fees where the same are expressly provided for by statute, and the fees so collected belong to the parties paying the same, the city having no claim to them whatever.

The demurrer to the second cause of action was properly sustained.

Burrows and Laubie, JJ., concur.