author: Marvin. J.; Winci-i, J., and Henry, J.,

text:
    ACTION AGAINST NEWSPAPER. FOR LIBEL.
    Circuit Court of Ashland County.
    Lewis C. Mengert v. The News Printing Company.
    Decided, October, 1908.

      Libel — No Name Mentioned — Evidence■—Facts Printed and Termed a Grime.

    1. in an action for libel, upon a newspaper article which does not mention the plaintiff’s name, it is proper to sustain an objection to a question asked of a witness as to who he understood was referred to in the publication.
    2. An action for libel can not be. maintained upon a newspaper article which terms a certain transaction a larceny, where all the facts of the transaction are truthfully set out and show that it is not a larceny.
   Marvin. J.; Winci-i, J., and Henry, J.,

concur.

Suit was brought by Mengert charging the News Company with'having printed libelous ■ matter concerning him, Three distinct publications, claimed to be libelous, are charged in the petition. In neither the first or second causes of action is the name of Mengert mentioned in the matter published. "Whatever else may be said of the charge of the court, it was properly charged, that whether the matter relied on in either of these causes of action was libelous or not, if it was published of and concerning the plaintiff, the defendant could not be held liable unless it were shown that the publication was of and concerning him. The result of the case was a general verdict for the defendant. The motion made for a new trial in the case did not specify, as a ground of the motion, that the verdict was against the weight of the evidence, so that the trial court was not called upon, by this motion, to review the evidence, nor are we called upon to review a question not presented to the trial court. If the jury found, therefore, that the two publications set out respectively in the first and second causes of action were not published of the plaintiff, the verdict as to those two was right, because as is said in the syllabus of the case of Sites v. Haverstick, 23 O. S., 626:

“Where the jury, by their verdict ‘find the issues joined in the cause’ in favor of one of the parties, this is to be taken as a verdict finding each and all of the issues therein for such party.
“In such case, if the issues are such that a finding of either of them in favor of the successful party entitles him to the judgment rendered, the judgment will not be reversed for error in the instructions of the court relating exclusively to the other. ’ ’

i

This case has been followed and approved from the time it was decided up to the present time. See McAllister v. Hartzell, 60 O. S., 69; Todd v. Wick Brothers, 36 O. S., 370, and Beecher v. Dunlap, 52 O. S., 64.

This being true, and as has already been said, we not being called upon to review the evidence, it may well be that the jury found as to these publications that they were not published of the plaintiff, and the result is that the judgment as to these causes of action must be affirmed, unless we find that the court erred to the prejudice of the plaintiff in its rulings, .upon evidence, on the question as to whether the publications were of and concerning the plaintiff. A careful inspection of the bill upon the ruling in this regard fails to disclose such error. It is true that Judge Brucker, and perhaps others, were asked whom they understood to be meant by these publications, and witnesses were asked who was referred to in the publications, in their opinion, and it was offered to show that several witnesses, of whom these questions were, asked, would answer, that they understood and thought, from the general talk in the city of Mansfield, where the publications were made, and where the plaintiff lived, they referred to him. This evidence was excluded and we think properly excluded. Authorities on both sides of this question are cited in 25 Cye. of Law and Procedure, at page 493, but we think the better rule is to exclude the evidence, as was done in this ease.

Questions were asked of .the plaintiff as to a conversation he had with the city editor of the paper published by the defendant, and it was proposed to show what was said to this city editor by those in authority on the paper. We think this was properly rejected. This evidence would be hearsay. If it was desired to show what those in authority on the paper said about it, the party to whom they said it or a party who heard it said might properly be called upon and inquired of.

Coming now to the third cause of action. There can be no doubt that this publication was made of and concerning the plaintiff, as well as others. The name Mengert appears in the publication, and the court said, on the trial, in substance, that no evidence need be introduced to show that this was meant for the plaintiff, as it showed that upon its face. The language of this publication, as charged in the petition and as shown by the evidence, reads:

“ 'From the above it is admitted that all of said $35,000 was not paid into the county treasury.’ We herewith hand you $18,421, being the net receipts received from the proceeds of said litigation.
“Thus ovt their own signatures is the larceny of the taxpayers money of the_ county, admitted by Brucker, Mengert (meaning the plaintiff) and Douglass. The action of the State Auditor in appointing an expert to examine the books in the auditor’s and treasurer’s office is understood to be upon the opinion of the Attorney-General, after seeing these published statements of Brueker, Mengert (meaning the plaintiff) and Douglass, together with the previous newspaper statements concerning this unparalled larceny of the people’s money.”

The petition avers that this was false and malicious, and was published for the purpose of injuring the plaintiff in his profession as a lawyer, and says, speaking of this publication, “meaning thereby that the plaintiff was guilty of the crime of larceny in his profession.” On this the court charged the jury that unless they found that this was spoken of the plaintiff in his profession and that damages resulted to him in his profession,-because of the publication, the plaintiff could not recover on this cause of action.

Without passing upon the question of whether, if this publication were libelous, the plaintiff could recover even though the damages which he suffered were those not growing out of his professional character, but resulted to him generally, we are of the opinion that there was no prejudice to the plaintiff in this, for the reason that the publication did not charge the plaintiff with larceny. It charged, in substapee, that the plaintiff and his associates retained out of the $35,000 collected for the county treasurer all of said sum, less $18,421. This statement was admittedly true, but the publication speaks- of it as a larceny. This, plaintiff insists, it was not. But whatever it was, the exact facts were stated in this publication, and it could not have been understood by anyone who heard it as being other than the published fact showed it to be. It was not a larceny, nor did the characterization of it as such change its character in any wise. In Brown v. Myers, 40 O. S., 99, it is said in the syllabus:

“An action of slander can not be maintained for words which impute a crime where, from all that was said at the time the words were spoken, it appears that the words had relation to a transaction that was not criminal, and that they must have been so understood, by the hearers.”

AYe find, therefore, that upon the questions presented in this record there was no error to the prejudice of the plaintiff: in the charge, nor in any other part of the record.

In this holding it is not to be understood that we make any holding as to whether rulings on questions of evidence other than those to which attention is called, nor as to the charge except as attention has been called to the charge, are erroneous, but only whether the matters pointed out were erroneous rulings or errors in the charge. They were not to the prejudice of the plaintiff, and the judgment is therefore affirmed.


source: Caselaw Access Project

author: Marvin, J.; AVinch, J., and Henry, J.,

license: Public Domain

text:
    POSSESSION AFTER. AN INVALID JUDICIAL SALE.
    Circuit Court of Cuyahoga County.
    Valentine Christ v. Jane Lay, Administratrix de bonis non With the Will Annexed of the Estate of Samuel Lay, Deceased.

    Decided, November 4, 1908.

      Purchaser ai Judicial Sale — Sale Set Aside — Profit Ad, Interim.

    One who goes into possession of premises, purchased at an administrator’s sale of lands to pay a decedent’s debts, is liable for the value of the use of the premises, if the sale is afterwards set aside.

      Beavis & Johnson, for plaintiff in error.

      Klein & Harris, contra.

       Affirmed by the Supreme Court without opinion, 82 Ohio State, 417.

   Marvin, J.; AVinch, J., and Henry, J.,

concur.

Samuel Lay was a resident of Cuyahoga county, Ohio, and died testate in 1885. At the time of his death he was the owner of a small farm in the village of Olmsted Falls, in this county. His will was duly admitted to probate and the widow of the testator elected to accept the provisions made for her in the will in lieu of her dower.

The widow is Jane Lay, who, as administratrix, is defendant in error here.

By the second and third items of said’will it is provided:

“I give, devise and bequeath to my wife, Jane Lay, and in lieu of her dower, the sum of ten dollars ($10.00) per month, for and during her lifetime, to be paid to her by the executor hereof out of my said estate, to be paid yearly, or oftener if necessary, so long as she lives and there is any of my said estate to pay'said amount with, and also that my said wife Jane Lay shall have a suitable home in the house in which she now lives; also in the village of Olmsted Falls, state of Ohio, so long as she lives; also that she have all of the household goods and effects now in the house situated in Olmsted as aforesaid.
“I give, devise and bequeath to my grandson Frank R. Lay, my homestead, consisting of about 19 acres of land, and buildings, thereon situated, in Olmsted Falls village, Cuyahoga county, Ohio, or so much of the same as there remains after the decease of my said wife and the stipulations mentioned in the item second shall have been fully performed and .he shall have paid to my son John Lay the sum of one hundred dollars, and also paid to each of my two sons Joseph and Samuel Lay, each fifty dollars, as the amounts which I direct them to have out of my said estate.”

By the fifth item of the will, Frank R. Lay, the grandson mentioned in the third item, is named as the executor of the will. He accepted the trust and for several years held the appointment as executor, but never completed the settlement of the estate. For a few years he paid to the widow, Jane Lay, the $10 per month provided for her by the second item of the will, and for several years after the death of the testator the widow lived on this farm. In 1889, the executor having moved out of the state of Ohio, resigned this trust as executor, and Jane Lay, the widow, was appointed to administer the estate. Before 1889, the widow had removed from the farm and has never lived there since, nor has anyone lived upon the premises since she left them, who was there by authority from any member of the Lay family.

After the appointment of Jane Lay she filed a petition in the probate court for authority to sell this real estate to pay the debts of the testator. On this petition such proceedings were had in the probate court that the premises were sold to the plaintiff in error in June, 1902. Thereafter, proceedings were had to set this sale aside, and finally, by a judgment of this court on the — day of - 1906, the sale was set aside, the court holding that it was not lawfully made. Before the sale to Christ, already named, he had purchased the premises at tax sale, and thereafter paid taxes upon the premises until he purchased at the administrator’s sale. After this purchase, he continued to pay the taxes until the sale was set aside. Thereafter, the taxes being again delinquent, the premises were again sold at tax sale and Christ again purchased. Neither of these tax sales gave him any valid title to the premises, but after the last purchase at tax sale, he paid the taxes for a considerable time. After the sale by the administrator, Christ went upon the premises, as he had a right to do, and to the extent that they were occupied by anybody who had any claim or right to them, they were occupied by him until the administrator’s sale was set aside. This was for a period of three years and eight months. During this time he made very little use of the premises, getting very little income from them, but he had the possession, and during all that time the right of the possession as against all the world. He made some repairs upon the premises, and expended some money therefor. After the sale was set aside he never exercised any rights of ownership of the property, nor had lie any right to exercise ownership. Some time after the the administrator’s sale was set aside a new petition was filed by her in the probate court for authority to sell, and' Christ was made a defendant in that proceeding, which was proper, because of his rights under the tax sales. The petition in the last named action set out as a distinct cause of action against Christ that he had had'the use of the premises for some twelve years, and that the rent therefor was worth $- per year, making in the' aggregate $-, which the plaintiff claimed to recover against him. Manifestly in a proceeding to sell real estate the administrator could not recover a judgment for money against the party who owed her in any capacity, but the allegations in this cause of action may be properly considered in conneetion with Christ’s rights in the premises. Christ, in his answer, set up that he had a lien on the premises by reason of his payment of taxes and the repairs which he had made thereon, and denied liability for the use thereof. The ease having been tried in the probate court was appealed to the court of common pleas and there tried, with the result that the court found that Christ was liable for the use of the premises for the whole time, after his purchase from the administrator. This is manifest from the amount found by the court against him in this record. In this the court erred. Christ had a lien upon the premises for whatever permanent improvements he had put upon them while holding under the administrator’s sale, and for all the taxes he had paid at any time. As against this lien he is chargeable with the value of the use of the premises from the time he purchased them at the administrator’s sale, until the time when that sale was set aside. Manifestly, under the evidence, this was not enough to offset entirely the amount of his lien. The court, therefore, erred in finding that there was nothing due to Chirst under his lien, over and above the amount which should be charged against him for the use of the premises. We hold that Christ was chargeable with the value of the use of these premises for the time specified, for the reason that he exercised acts of ownership over them, as he had a right to do for the three years and eight months that he held them, under the administrator’s sale, and if he failed to obtain any income therefrom, the fault was his own.

In making this finding we do not hold that the administrator was ever entitled to the possession of the premises; Mrs. Jane Lay had, under the will, a right to a home on these premises. She had no other right in the premises, she having waived her dower. The executor of the will, as such, had no right to the possession of these premises, but Frank R. Lay, as devisee, had a right to the possession; they were devised to him; he was the owner; his title was subject to the claim of the widow for the annuity provided for her, and subject also to the rights of the creditors of Samuel Lay to have the premises sold for the payment of debts, but the ownership and right of possession wore all the time in him.

The judgment of the court of common pleas is reversed for error in allowing,' as against the lien of Christ, the value of the use of the premises for a longer time than the period between the date of the administrator’s sale, and the date when that sale was set aside.


author: Marvin, J.; WiNcn, J., and Henry, J.,

text:
    ILLEGAL PROHIBITION ON SALE OF CORPORATE STOCK.
    Circuit Court of Cuyahoga County.
    The W. M. Pattison Supply Co. v. A. J. Harvey.

    Decided, March 1, 1910.

      Corporation — Stock—Stockholder’s Right to Sue — Transfer.
    It is not a good excuse for íefusal to transfer certificates of stock on the books of a corporation, that the transferrer of the stock has i failed to comply with a by-law of the company providing that no stock shall be transferred to a person not a stockholder until the board of directors has been offered an opportunity to purchase the stock at the value fixed at the next preceding annual meeting of •the stockholders, plus sii? per cent., from the date of said meeting. The by-laws of a corporation can not legally prohibit or limit the right of a stockholder to sell his stock.

      Smith, Taft & Arier, for plaintiff in error.

      Frank Higley, contra.

       Affirmed by the'Supreme Court without opinion, 82 Ohio State, 890.

   Marvin, J.; WiNcn, J., and Henry, J.,

concur.

This is a. proceeding in error brought here seeking to reverse the judgment of the court of common pleas. The facts are these, in brief:

Harvey filed a petition in the court of common pleas, setting forth that he was the owner, by assignment from another, of fifty shares of stock in the Pattison Supply Co-., which is a corporation duly organized, incorporated and doing business under the laws of the state of Ohio, that he presented the' old certificates to said company and demanded a transfer of the stock and issuing of new certificates or certificate to him, which was refused. It is conceded that he presented the old certificates, and that the company refused to transfer the stock, and the reasons given are, first, that the stock.for which ITarvey holds certificates was originally issued to one A. M. Keller, who subsequently diéd, and the administrator of his estate, one Norman S. Keller, never made the sale of the stock to one L. H. Wain,' as was alleged. Secondly, it is urged, the sale was not authorized by law, although it was ordered by the probate court to be made, because' of certain irregularities that are set out in the administration, among others, that there was no appraisement.

It is sufficient to say that the probate court did have jurisdiction and affirmed the sale.

In the suit of Drelier against this corporation, the same question was necessarily involved, for he at that time claimed to be the owner of stock of this company, and it was there held that he was the owner of the stock. After the decision in that case Wain, who held the stock in trust and who had, the legal title thereto, sold and assigned the same stock, 50 shares, to the plaintiff below in this action.

It is sought to justify the refusal to issue the new certificates by reason of a by-law. It was also denied in the answer that the sale was made in good faith and for value but the case was referred to a referee, who found the facts to be, upon the evidence, that the sale was for value, so that, without question, the plaintiff below in this action is the owner of this stock. Indeed that was conceded in the argument, but, it is said, by reason of Article YIII of the by-laws of the corporation, the plaintiff was not entitled to have the transfer made. That by-law reads:

“Transfers of stock can only be made on the books of the company, in person or by proxy, in the presence of the president, or secretary, on surrender of the previous certificates and payment of all dues on the same, and the further provision that no stock should be transferred to any person not a stockholder until the board of directors should have been notified in writing of such intent and shall have an option for a reasonable time to purchase said stock at the value determined at the next preceding annual meeting of the stockholders, with six per cent. (6%) interest from the date of the meeting added thereto.”

This stock was not offered to the board of directors, nor had there been any value fixed on the stock at the annual meeting of the directors next preceding the time when thisi was sold, nor had there been any opportunity given to fix any value. But whether that was so or not, we are of opinion that under Section 3254, Revised Statutes of Ohio, this plaintiff was entitled to have the stock transferred. This section reads:

“Stockholders shall be entitled to receive (certificates) of their paid up stock in the company; and-the president and secretary of -the company shall on demand, execute and deliver to a stockholder a certificate showing the true amount of the stock held by him in the company. And it shall be the duty of the directors of such corporation, when organized, to keep a record of all stock subscribed and transferred, and of the secretary or recording officer of such corporation to register therein all subscriptions and transfers of stock,” etc.

This man had bought the stock, was the owner of it, and under the statute was entitled to have it transferred, and this by-law. could not prevent his right to have it transferred.

In the 10th Cyc. of Law and Procedure, at page 359, this is the test, as there laid down:

“As a general rule by-laws which operate in restraint of trade are void, as against public policy, under the principles of the common law; and this is also true of municipal ordinances, and especially of municipal ordinances tending to create monopolies, excluding, of course those cases where the grant of exclusive franchises is- necessary, as in the case of gas light companies, water supply companies and the like.”

Also:

“Shares of stock in a corporation being personal property, and tbe jus disponendi being incident to the very nature of property, it follows that a by-law which undertakes to prohibit a shareholder from freely transferring his shares off .stock is originally void, as being in restraint of trade and against common right.”

We are cited to Cook on Corporations, Volume 2, Sections-622c and 622d. Section 622c reads-:

"A stockholder has a right to sell his stock at any time and. to whomsoever he pleases without regard to other stockholders. Even though he owns a majority of the stock there is no principle of law obliging him to provide for the sale of others’ stock when he sells his own. Hence contracts are often entered into between a portion or all of the stockholders of a corporation to the effect that they will hold and sell their stock together. Such a contract is legal. The difficulty with such a contract, however, is that upon a breach of it only the actual loss suffered and not the full value of the stock of the injured party is recoverable in damages. Hence, such a contract should contain a provision obligating the selling stockholder to buy the stock of the others.
"Another form of contract is to the effect that before any of the stockholders sell their stock they shall first offer it to the other stockholders. This kind of a contract is also legal and will be enforced by the courts.
"An agreement, however, between the stockholders of a corporation that no one of them will sell, assign or dispose of his stock without first having given the other parties to the agreement an opportunity to purchase, does not disable a party from transferring a legal title to the stock without the consent of the other parties and in violation of the agreement, and this although the transferree was cognizant of the agreement at the time of the transfer. It is a breach of contract, but the remedy is usually at law for damages. Such also is the rule as to a contract that a stockholder before selling his stock to others, shall first offer the stock to the corporation itself. A personal agreement between the incorporators, promoters and proposed subscribers to the said stock of a proposed corporation, by which agreement the corporation is to have the first right to buy the stock of any one who wishes to sell, does not prevent a sale by a stockholder without offering the stock to the corporation. Hence the corporatipn can not refuse to transfer the stock.”

Sections 622d reads:

"The by-laws of a corporation can not legally prohibit or limit the right of a stockholder to sell his stock.
"It has been held in Massachusetts, however, that a by-law, recited on the face of a certificate of stock to the effect that a stockholder will not sell his stock without first offering it to the directors at the same price, prevents the stockholder transferring the stock to his principal, he not having disclosed that he was acting as agent. Such a by-law is legal, and the corporation may refuse to transfer the stock in violation of the by-law.”

This is held also in one'case *in the 63d Northeastern, p. 934 (Barret v. King), but the test is otherwise in Ohio, as the statutes of this state provide that corporations shall keep a record of all stock subscribed and transferred, and for the secretary or recording officer of such corporation to register therein all subscriptions and transfers of stock, and that it shall be their duty so to do.

The judgment of the court of common pleas is therefore affirmed.


author: Marvin, J.; Winch, J., and Henry, J.,

text:
    CONVEYANCE SET ASIDE.
    Circuit Court of Cuyahoga County.
    Edna R. Kramer v. Eliza Kramer.

    Decided, November 18, 1908.

      jjeed from Daughter to Mother — Want of Consideration.

    A deed made without consideration by a daughter to her mother shortly after coming of age, will be set aside, notwithstanding it recites a consideration of one dollar, if the circumstances show that the daughter was not acting upon independent judgment of her own, uninfluenced by her mother.

      Klein if Harris, for plaintiff in error.

      MoKisson d; Minshall, contra.

       Affirmed by the Supreme Court without opinion, 82 Ohio State, 395,

   Marvin, J.; Winch, J., and Henry, J.,

concur.

The deed which it is sought to have declared void in this case ivas executed by the plaintiff within less than six months after she arrived at full age. The grantee was her mother, with whom she was living at the time, and with whom she lived from her birth up to a considerable time after this conveyance was made. Before the plaintiff became of full age, she had been with her mother to the office of a lawyer to have this deed executed and it would then have been executed but for the fact that the lawyer learning of the minority of the plaintiff, advised the execution would be a nullity. From that time on, until the execution of the deed, the matter was apparently never dropped. When the man who drew the deed wras first seen about it, the mother and daughter were together; and when the deed was executed the mother and daughter were together. It is suggested in the brief of counsel for defendant that there was a consideration for the execution in the $1 which was paid at the time the deed was executed, and attention is called to the ease of-.

Surely this claim is not sound, for if the deed had been made under a bargain with the mother that she should purchase the property for $1 the inadequacy of consideration would itself be a badge of fraud, when the fact was taken into consideration that the grantor was an eighteen year old daughter of the grantee with whom she was living and had lived all her- life. In the case of Mabel Lane v. The Reserve Trust Company, this court decided on November 6, 1907, that a mortgage made by a young woman shortly after arriving at full age for the benefit of her step-father, to the Reserve .Trust Company, where the entire benefit was for her step-father with whom she lived at the time of the execution of the mortgage, and. during her minority, even though the trust company had no knowledge in regard to the matter other than the relationship which existed between the mortgagor and her step-father, is void. Judge Winch dissented from this opinion, but only upon the ground that the trust company was not chargeable with the fact that the mortgage was made by the reason of the influence that the step-father-had over the daughter by simply showing the relationship between them. There is no intimation in his dissenting opinion that as between the step-father and the daughter the instrument would not have been void. In the majority opinion in that case it is shown that the presumption is that when a child, shortly after reaching majority, makes a conveyance without consideration to a parent, the conveyance results from the influence which the parent has upon the child, and this quotation is made from the opinion in the case of Berkmyer v. Keller- man, 32 O. S., 253 (in which last named opinion the court quotes with approval, from Cocking v. Pratt, 1 Ves. Sr., 400, these words);

“The court will always look with a jealous eye upon a transaction between parent and child just come of age, and .interpose if any advantage is taken. ”

It is not deemed necessary here to go into the details upon the evidence which was adduced in the ease. As has already been said, the grantor was just past majority; she had always lived with her mother, an'd was living with her at the time of the execution of the deed; she went with her mother to the office of a lawyer to have the deed executed before she was of full age. It is manifest, therefore, from the evidence, that it was not first upon the suggestion of this plaintiff that the conveyance be made to her mother. She had no knowledge of business and probably had a very vague and indistinct knowledge of what her rights in the premises were as the heir of her father, until it was suggested to her by her mother, or by others. She was, as we' think, not acting upon any independent judgment of her own, uninfluenced, when she went with her mother, before her majority, to a lawyer’s office to execute this deed, nor did she ever thereafter exercise an independent judgment of her own, uninfluenced by. the judgment of her mother, that- this conveyance should be made. It is doubtful if she had any realization of the fact that the title would be in her mother in such wise that she would have no longer any interest in the premises.

In so holding we do not mean to charge the mother with an intentional wrong against her daughter. She seems to have thought, and some other friends seem to have thought, that the conveyance to the mother was more a matter of form than anything else, so as to make it easy to settle the estate of the deceased father, and that Edna’s interest in the property would be fully as great after the conveyance as before. But for the fact that an unfortunate and unhappy disagreement has .arisen between the mother and daughter, it is quite likely that the daughter would have been protected in her rights by her mother as completely as though she had not made the deed. But by making the deed she parted with a title which she had a right to keep. We think from the evidence that she parted with the title without the exercise of independent judgment on her part and that therefore the conveyance must be held for naught.

A decree will be taken accordingly. This will restore to Edna her rights as they were before this conveyance was made. The property will be here, but no less liable to be converted into money if it shall become necessary for the payment of indebtedness of her father. In short, her rights will be neither greater nor less, by virtue of the decree in this case, than they would have been if the deed had not been made.


author: Marvin, J.; Winch, J., and Henry, J.',

text:
    DEFENDANT’S STATEMENT AS TO WHY HE BROKE CONTRACT INCOMPETENT.
    Circuit Court of Cuyahoga County.
    M. A. Hanna et al v. J. J. Crozier, Administrator of the Estate of J. Eli Crozier, etc.
    Decided, November 30, 1908.

      Evidence — Conclusions—Termination of Contract — Acquiesence Therein.

    1. It is not competent for a defendant, sued for a breach of contract which he admits, to be asked by his own counsel why he broke his contract, for that permits him to give conclusions instead of the facts from which his conclusions were drawn.
    2. The fact that one has delayed bringing suit for damages for breach of a contract- for some months after notification, that the other party to the contract will not abide by the contract is no evidence of acquiesence in a termination of the contract.

      Squire, Sanders & Dempsey, for plaintiff in error.

      Burton c& Dalte and William Hotvell, contra.
   Marvin, J.; Winch, J., and Henry, J.',

concur.

The parties here stand in the reverse order in which they stood in the action in the court of common pleas. The terms “plaintiff” and “defendants” as used in this opinion, will refer to the parties as they stood in the original action.

The plaintiff avers in his second amended petition that on the 18th day of November, 1901, he and the defendants entered into an agreement by which the defendants were to furnish to the plaintiff five hundred tons of a certain grade of iron; that the same was to be shipped at the rate of twenty tons per week, between the first day of January, 1902, and the first day of August, 1902, and the plaintiff agreed to pay therefore at the rate of $17 per ton, to be paid at the town of Kennet Square, Pennsylvania, in installments; when the iron aforesaid was delivered at the furnace of the defendants at Buffalo, New York, in cars for shipment to the plaintiff upon presentation to plaintiff of bill of lading for same with sight draft attached for the amount due therefor, at the rate aforesaid.

The plaintiff further.says that the defendants failed to deliver any part of the iron so contracted for, and that prior to the time when delivery was to begin under the contract, to-wit, on the 28th day of December, 1901, the defendants notified the plaintiff, in writing, that they would not carry out the contract but repudiated the same.

The defendants answer, admitting that they entered into the contract as claimed by the plaintiff, and that on the 28th day of December, 1901, they notified the plaintiff that they would not carry out the contract. They say, however, that the contract was a continuation of a former contract, under which the defendants were furnishing iron to the plaintiff and that subsequent to the making of the contract sued upon, the plaintiff defaulted in the earlier, contract, in that he failed to promptly pay for the iron shipped under such former contract as he was required by said former contract to do. And though the an-' swer does not set up the fact that the plaintiff was unable to carry out his part of the contract of November 18, 1901, yet upon the trial the claim was made, and to a certain extent at least a trial was had upon the theory that the plaintiff was unable to carry out the contract of November 18. 1901; that his financial condition was such that he could not have carried it out.

The answer further avers that the plaintiff acquiesced in and agreed to the cancellation of the contract, for the breach of which this suit was brought. The result of the trial was a verdict for the plaintiff.

A motion for a new trial, made by the defendants, was overruled, and exception to such overruling of the motion was made by the defendants.

Exceptions also were taken to a ruling upon the introduction of evidence which is complained of in the proceedings here, and exception is taken to the charge of the court; and it is urged here that the court erred in these particulars, and that therefore the judgment should be reversed.

The ruling upon the evidence, complained of is found by an examination of pages 66 and 67 of the bill of exceptions. One Reuben E. McNahon, an agent of the defendants, who had charge of the shipping of the iron, was being examined, and wa» asked this question by counsel for the defendant:

‘ ‘ I will ask you, Mr. McNahon, if under the terms of the contract which is in dispute here, you did make any shipments to Kennet Square Foundary Company of this iron?”

To this he answered: “We did not.”

He was then asked: “You may state why you did not.”

This question was objected to by the plaintiff and the objection sustained. To this ruling the defendants excepted, and then stated that they offered to show that1 ‘ if the witness were allowed to answer, that the defendants had obtained knowledge, through the conduct of the plaintiff, subsequent to the execution of the contract, that he did not intend to carry out the term of the contract, and that he was insolvent and unable to do so.”

The question asked by counsel for the defendants of their own witness, “You may state why you did not,” is clearly improper. One can conceive of any number, of answers which might have been given to this question, which would have been incompetent. The witness might have answered, because Wb heard from John Doe that the plaintiff was insolvent'; or he might have answered, because we had made up our minds that we didn ’† care to do business any longer with the plaintiff. Indeed he might have answered in such wise that his answer would necessarily be incompetent. It is not competent ordinarily, for one to ask of his own witness why he did or did not do certain things. However, we are not left here to conjecture as to what the answer would be obtained was incompetent. It was not proposed to have the witness say what facts he relied on as a justification, but only state certain conclusions at which he had arrived.

There was no error in the ruling of the court on this question..

The language complained of in the charge is that the court said, in reference to the claim of the defendants, there the plaintiff acquiesced in and agreed to the rescission of the contract: “There is no evidence that the parties^here at any time abandoned or rescinded this contract, so that pax’t of the issue you will have no reason to consider.”

We think the court was entirety justified in using this language.

The oixty evidence the defendants could claim tended in any way to support their contentioxx in this issue was their letter of Deeexnber 28, 1901, which reads:

“Cleveland, 0., Dec. 28, 1901.
“Kennet Foundry Company,
Kennet Square, Pa.
“Gentlemen: We are advised today by the agent of the Pennsylvania R. R. that you have not paid for the car of Buffalo pig iron which was shipped you last Nov. We think you will readily understand that we can not do business in this way, and that'when we entered your order of Nov. 16th for 500 tons of Buffalo charcoal iron the understanding was that our drafts would be paid immediately upon presentation. The experience we have had with this car is such that we can not'do business in this way, and have therefore, canceled your order of Nov. 16th and will not ship any more pig iron to you excepting on receipt of your New York draft, or postal order, before the iron is shipped and we will then ship you iron if you desire at the market price, but under no other conditions.
“Yours very truly,
“M. A. Hanna & Co.”

The plaintiff did nothing xxxxtil the 20th of March next following, when he wrote the following letter:

“Kennet Square, Pa., Mar. 20, 1902.
“M. A. TIanna & Co.,
Cleveland, Ohio.
‘ ‘ Genis: The writer has been absent from the office for some time on account of sickness, or would have taken up your letter of December 28th, before this. Now you say that the understanding was that we were to pay your drafts immediately upon presentation. Now .we do not know of any such an agreement, but we are aware that it is always supposed to pay drafts promptly, and we regretted as much as you did that the draft was not paid promptly, but we had a firm that was holding us back a settlement that put us very short, and that is the reason we could not pay the draft. Now we wish to know if you will give us another chance, as you will admit that all our other dealings were satisfactory and we paid very dear for the delay in the last draft. We have experimented with your iron and have been put to extra expense in doing so, and have now the iron at a point where we can make satisfactory profits from the same and now to use another iron, it would mean to go all over the matter. Will you not consider this matter, place yourself in our position, and you would thank us to favor you, for which we will thank you to do for us.
“If you will favor us, the drafts will be paid promptly when presented to us; if not we will ask no more.
“Trusting to hear from you, favorably, we are “Yours truly,
“Kennet Foundry '& Mac. Wks.
“Diet, by J. E. C.”

The defendants on the 22d of March, 1902, wrote the following letter:

“Cleveland, 0., Mar. 22, 1902.
“Kennet Foundry & Machine Works,
Kennet Square, Pa.
“Gentlemen: We have your favor of the 20th inst., and note contents carefully. We fee! that we are fully justified in the position that we take. As written you Dec. 28th and as advised at that time, we cancelled your order and do not understand that we owe you any iron whatever. In the future, if we had iron such as you desire, we will be pleased to ship it to you at the market price at the time of shipment, but only upon receipt of your New York draft before the iron is shipped. We regret the necessity of taking this position, but feel that our past experience with you makes it a necessity.
“Very truly yours,
“M. A. Hanna & Co.”

To which letter the plaintiff made no response until July, 1, 1902, when he wrote the following letter:

“Kennet Square, Pa., July 1, 1902.
"M. A. Hanna & Co.,
Cleveland, Ohio.
'" Gentlemen: Taking up the matter of the balance of charcoal iron due on our contract for 500 tons we do not understand why you take the position that you do in this matter, as we were the losers in this transaction as the first car we admit was not cared for promptly, but as we stated we were at that time held up for setlement due us and this was 'the cause of us not being able to take care of the bill of lading promptly, but as we paid all of the expense for the same we do not see, as stated before why you take such action in this matter and while we are in need of this iron, we wish to do the right thing in every way and as we have said in our previous letters if you will continue to supply us with this iron we can assure you bill of lading will be taken care of promptly upon arrival of the car.
“Now we trust you will carefully consider this matter and advise us by return mail as we could have 100 tons shipped immediately. Trusting to have a favorable reply, we are, "Yours very truly,
"Kennet Foundry & Machine Works.
“Diet. J. J. C.”

The jury necessarily found from the pleadings and the Svidenee that the contract claimed by the plaintiff was- entered into, and that on the 28th day of December, 1901, the defendants repudiated it.

Then if the plaintiff was damaged by reason of this breach, he had a right of action at once upon the receipt of that letter to begin an action. Or, he might wait until the expiration of the time in which the defendants were to have completed their part of the contract. He might have said nothing to the defendants after the receipt of their letter of December 28th and he would still have a right of action upon his contract, and provided he could show that he was at all times ready, able and willing to perform on his part. The jury necessarily found that he was so ready, able and willing, and from the evidence they might well have so found.

Without going into an analysis of the two letters- written by the plaintiff hereinbefore quoted, the one of March 22d and the other of July 1st, it is sufficient to say that we find nothing in either of those letters indicating on the'part of the plaintiff that he consented to the repudiation of the contract by the defendants.

Under the facts as shown by the bill of exceptions, it would have been surprising if the jury had not reached the conclusion which it did reach, and hence the motion for a new trial on the ground that the verdict was not sustained by the evidence, was properly overruled, and as has already been said there was no error in the ruling upon the evidence or the charge of the court, the judgment is therefore affirmed.


text:
    FIXING THE AMOUNT DUE UNDER. A BUILDING CONTRACT.
    Circuit Court of Cuyahoga County.
    Anton Dreher v. L. W. McKenzie et al.
    Decided, December 7, 1908.

      Building Contract — Substantial Performance — Measure of Recovery■— Waiver of Terms of Contract — Promissory Note — Payment.
    1. Where plaintiff is entitled to recover upon a building contract, because he has substantially performed his contract, it is proper ■for the jury in its verdict to fix the amount remaining unpaid upon the contract price as the amount due the plaintiff, the amount due the defendant as damages because of failure to complete fully the contract according to specifications, and make the recovery the difference between the two.
    2. Where a building contract provides that no claim shall be made for alterations and additions unless they be made upon the written order of the architect, this provision may be waived by the owner, but evidence of waiver must be clear and convincing and it is error to charge that recovery can he had for such extras merely upon proof that they were furnished, without proof of waiver oí the conditions of the contract.

      3. Where a promissory note has been given for an estimate due on a .contract, and suit is afterwards brought for the amount due on the contract, the note must be treated as payment on the contract indebtedness, unless the plaintiff offer to surrender it.

      Mark A. Copeland, tor plaintiff in error.

      J. Sharp Maxwell, T. H. Bushnell, Foster, Foster & Howells, Howland & Niman; Calhoun é Guenther, Delos Cook, J. Freiberger and Thompson Hiñe, contra.
   Marvin, J.; Winch, J., and Henry, J.,

concur.

The relation of the parties to each other here is the reverse of the relation in which they stood in the court of common pleas. The terms plaintiff and defendant, as used in this opinion, will refer to the parties as they stood in the original action.

The plaintiff brought suit against the defendant for a balance claimed to be due for work and materials- furnished in the erection of a building at the northeast corner of Euclid avenue and 105th street, in the city of Cleveland.

The petition alleges that the parties entered into a written contract-for a certain part of the construction of this building; that contract is in writing and is attached to and made a part of the petition. (Parenthetically it may be" said here, that to make such a contract a part of the pleading is not good practice and is not contemplated by the code. However, it is a defect which can only be remedied by motion, and the pleading is therefore good, although the proper way would have been to follow Section 5086, Revised Statutes of Ohio, and attach it, without making it a part of the pleading.)

Subsequent to the making of the contract already named, another written contract was entered into, as to certain other work which the plaintiff was to do for the defendant.

The petition sets out further that certain work, other than that specified in either the original or subsequent written contract, was done, and that the plaintiff fully performed all the things by him to be done in both of said written contracts (specifying the items), and then follow these words:

“And plaintiff further says that between the 19th day of July, 1906, and the 21st day of December, 1906, the said plaintiff at the request of the defendant, Anton Dreher, and his authorized agents, the Harvey Bros., and upon the order of said architects, furnished additional materials and performed the labor incident thereto not called for in this original contract and that the reasonable value thereof is $1244.72, said additional work and material being as .follows, to-wit:” Then follows an itemized account of such additional work and materials.

The defendant answered admitting the making of the written contracts and denied that the plaintiff had fully performed on his part, and then by way of cross-petition, set up claim for damages because of .the failure on the part of the plaintiff to fully complete his contract. The result of the trial was a verdict and judgment for the plaintiff. The form of the verdict is that the jury found a certain amount due to the plaintiff on his petition and that there was due to the defendant a certain other amount, on his cross-petition, and then found as the amount to be recovered by the plaintiff, the difference between the amount found dire to him on his petition and the amount due to the defendant on his cross-petition. The amount of the latter being less than the amount of the former.

One of the errors complained of is that this verdict is inconsistent and is not properly framed. This objection is not well taken. Where the plaintiff is entitled upon a building contract to recover because he has substantially performed his contract, it is proper to fix the amount remaining unpaid upon the contract price as an amount due to him and then fix the amount due to the defendant, because of the failure to fully complete the contract according to all its specifications and make the recovery the difference between the two.

One of the provisions of the original contract reads as follows ; '

“Item 3. Should any alteration be required in the work shown or described by the drawings or specifications, a fair and reasonable valuation of the work added or omitted shall be made by the contractor, and the sum herein agreed to be paid for the work according to the original specification, shall be increased or diminished, as the case may be. In case such valuation is not agreed to, the contractor shall proceed with the alterations, upon the written order of the architects, keeping exact account of the cost of labor and materials involved in the alterations, and if the same be less than that originally shown and described, the net difference shall be deducted from the sum herein agreed to be paid; but, if more, the'n the additional cost together with-per cent, of the same shall be added to this sum. ”

Another clause of the contract reads:

“Item 8. The contractor shall make no claim for additional work unless the same shall be done in pursuance of an order from the architects.”

It is contended on. the part of the plaintiff in error that these two items shall be considered together. In this contention we think the plaintiff in error is right, and that the additional work spoken of in item 8, is one of the things contemplated by the word “alterations,” and the words “the work added or omitted” in item 3.

The account for additional materials- and labor in the petition, for which the sum of $1,244.72 is made, is clearly for additional materials and labor upon the same building and in connection with the same work provided for in the written contracts, and this is shown too by the language of the petition, already quoted, and which is here re-copied as follows: “the said plaintiff, at the request of the defendant, Anton Dreher, and his authorized agents, the Harvey Brothers, and upon the order of said architects, furnished additional materials and performed the labor/ incident thereto not called for in the original contract,” and it follows that unless by reason of some other contract made between the parties, there was á waiver 'of the provisions of item 3, the plaintiff was not entitled to recover therefor, because there is not claim that there was any written order for this-made by the architects, nor was there any valuation made before the work was done which was either agreed to or not agreed to. The contemplation of the parties clearly was, when the original contract was made that if additional material or labor was to be furnished, the contractor should make a valuation before furnishing the same, and if this valuation was agreed to, he should go on and furnish the labor and materials; if it was not agreed to, then upon a written order of the architects he should go on and furnish the labor and materials, keeping an exact account of the cost, and recover therefor.

Here, as already said, no valuation was made, nor was there any written order. ■ However, the fact that these parties had entered into a written contract providing that except by a written contract and order nothing further should be done by the plaintiff for which he should be paid, this did not prevent the parties from agreeing to a waiver of this stipulation, nor did it prevent the parties from entering into a new or additional contract in any way in which they might have made a contract, if this written contract had not been made.

To illustrate: There might have been a written agreement between these parties that the plaintiff should construct a building of a certain character and dimensions for a fixed and certain price, and that the plaintiff should construct no other building for the defendant, unless that should be upon a written contract, and yet the parties might waive that and enter into a verbal agreement that the plaintiff should construct another building in addition to the one first contracted for, but when such new contract is made containing a waiver of the previous written contract, it is not sufficient to establish it by a mere preponderance of the evidence, the evidence of such -waiver must be clear and convincing.

In the case of Ashley v. Henahan, 56 O. S. 560, the fifth paragraph of the syllabus reads as follows:

“Such stipulation being for the benefit of the employer, proof of a waiver must either be in writing, or by such clear and convincing evidence as to leave no reasonable doubt about it.” See also 125 Mass., 102; 27 Vt., 130-9; 59 Conn., 551-4.

The court charged in this case in reference to this additional claim that:

“In regard to the claim for extras, you will look to the evidence and find what work and material the written contract entered into for the construction of the building required to be done. After you have ascertained that, then you will inquire whether or not the plaintiff did anything at the request of the defendants towards the construction and completion of the building other than that agreed to be done in the written contract. If you find that work was done other than that, or outside of that provided in the written contract, then you must ascertain from the evidence what it is reasonably worth. If you find from the preponderance of the evidence that the work and material were performed and furnished by the plaintiff as above indicated, that would constitute extras, and if the price had not been agreed to between the parties, the plaintiff would be entitled to recover the reasonable value of the extras.”

In view of what has already been said this was erroneous.

A question is raised as to what effect the fact that the plaintiff held a note on which there was due the sum of $1,000 should have upon the verdict to be rendered here.

On the part of the plaintiff it was claimed that this note was given upon another indebtedness of the defendant to him. Of course, if the jury found this to be true, the note would cut- no figure, in this suit. But the defendant claimed that this note was given to apply in part payment of the indebtedness sued for in this action. If this claim be true, then though the note is not payment of the indebtedness sued for in this action unless it is agreed between the parties that it shall be so treated, yet while the plaintiff held on to the note, failed or refused to deliver it up or cancel it, it should have been treated as a payment. The plaintiff was not entitled to hold on to this note if it was given upon the indebtedness for the construction of the building under consideration, and still recover the same amount as he- would be entitled .to recover if he had never received the note, because he would then have, when he recovered, full payment upon his contract and still be the holder of this note.

The court in its charge to the jury said:

“If you find that a note was given by the defendant to the plaintiff, or renewal notes were given for an estimate, such note or renewal notes do not create a new debt or operate as a discharge or satisfaction of the debt evidenced by-the estimate of the architects, unless it is agreed upon between the plaintiff and defendant. And the burden of proof is upon the defendant to show that the estimate of the architects has been discharged or satisfied by said note or renewal notes.”

This statement not qualified by the further proposition that if the plaintiff was not to be charged with the amount due upon this note as a payment he must surrender the note, was erroneous.

Complaint is made that the court erred in refusing to give certain propositions in his charge to the jury, which were requested by the defendant before argument. Without stopping to consider each one of these propositions requested, it is sufficient to consider that it does not appear by the bill of exceptions that the court was requested in writing to give these propositions, nor does it appear that the court was requested to give the propositions in writing.

Paragraph 7, of Section 5190, Revised Statutes of Ohio, relating especially to charges and instructions of the court to the jury, reads as follows:

“The court, after the argument is concluded, shall, before proceeding with other business, charge the jury; any charge shall be reduced to writing by the court if either party, before the argument to the jury is commenced, request it; a charge or instruction, when so written and given, shall not be orally qualified, modified, or in any manner explained to the jury by the court; and all written charges and instructions shall by the jurors be taken in their retirement, and returned with their verdict into court, and shall remain on file with the papers of the case.” See Ry. Co. v. Gilbert, 24 C. C., 181, and Clark, Admr., v. Bolts, 29 C. C., 665.

And it has been held by this court and by the circuit court of the seventh circuit of Ohio, that where the requests were made for the purpose of invoking the statute referred to, it must affirmatively appear by the bill that the court was requested to give the propositions in charge in writing.

It follows that the plaintiff was not entitled to have these propositions given in the words requested, even though they embodied correct propositions of law applicable to the case. There was no error in the refusal of the court to charge these propositions before argument, and we find no error in the record justifying a reversal, except the errors in the charge already pointed out, and for these errors the judgment is reversed and the cause remanded.


text:
    INJURIES PREVENTING PURSUIT OF PROPOSED VOCATION.
    Circuit Court of Cuyahoga County.
    The Lake Shore Electric Railway Company v. George M. Mills.

    Decided, March 14, 1911.

      Personal Injury — Measure of Damages to College Student-Evidence —$9,000 Not Excessive Verdict.

    1. A young man studying at college to become a mining engineer, was seriously injured in a trolley accident by the negligence of the company. He was permitted to show that his injury would prevent his following his chosen profession. Held: No error, even though his petition did not allege this special damage.
    2. Though the petition does not claim damages for an arm, it is not error to permit 'a witness to testify that he found an injury to plaintiff’s arm, if the jury is cautioned that there can be recovery only for the injuries specified in the petition.
    3. Nine thousand dollars is not an excessive verdict for a young college man twenty-two years old, injured as shown in this case.

      M. B. & II. II. Johnson and G. M. Dahl, for plaintiff in error.

      Sidles, Green & Sidles and B. B. A. G. Neivconib, contra.

       Affirmed without opinion, 84 Ohio St., 443.

   Marvin, J.; Winch, J., and Henry, J.,

concur.

The relation of the parties- here is the reverse of the relation in which they stood in the court of common pleas. The terms plaintiff and defendant, as used in this opinion, refer to the parties as they stood in the original action.

The plaintiff was a passenger in a car being operated by the defendant upon its road and was injured by the negligence of the defendant. This is conceded by the defendant. Suit was brought to recover damages for such injury, and the result was the plaintiff recovered a judgment of nine thousand dollars. It is claimed that these damages are excessive, and that the court erred in the admission of evidence on the question of such damages. The plaintiff, was, at the time of the injury, about 22 years of age and was a student at the Case School of Applied Science in the city of Cleveland. lie was studying with a view to becoming a mining engineer. Ilis father is an engineer and during school vacations he had worked some with his father in surveying, but he had not graduated ,in the profession, though he was within less than one year of graduation at the time he was injured. The injury resulted, as claimed by the plaintiff, in a curvature of the spine, and as is further claimed is such an injury to the back as would altogether prevent, or in any event greatly interfere with the prosecution by the plaintiff of the profession of a mining engineer. It is claimed that this evidence was all incompetent because the plaintiff was not a mining ^engineer. It is not like the case of one engaged in an employment where he hopes for promotion, but it is a case where the recovery sought-was for damages which naturally would flow to one preparing for a particular occupation. The rights of the plaintiff would be governed by the same rule that would govern if he were an apprentice to a mechanical trade, so preparing himself to earn money in the prosecution of that trade.

If this plaintiff had been a mining engineer at the time of the injury there is no doubt that he might show that fact and how he would be affected in the prosecution of that profession. Suppose instead of being an undergraduate in the college the plaintiff had just received his diploma, but had never entered upon the practice of his profession, and had never earned a¿y money as an engineer, it would seem difficult to give any good reason why the effect of the injury upon his prosecuting the profession would not be competent.

If instead of having received the injury immediately after he had received his diploma he had received it a week before he would have graduated, or, as in the ease, about a year before he would have graduated, the reason for admitting evidence as to the effect of such injury upon the prosecution of the profession would seem to apply as well in the one case as in the other. This young man, presumably at a considerable expense, was preparing for a profession in which he might expect to earn money, is so injured by the defendant that he is not likely to be able to prosecute that profession with such success as he otherwise would probably have been able to prosecute it, and we see no reason why, in estimating the damages, the effect upon his ability to do that which he was preparing himself to do, was not proper subject of inquiry. If instead of the profession which he had selected he had been studying for a long time for the profession of the ministry or of an actor upon the stage and the injury had resulted in total loss of his voice, we think the case would have been parallel to the present, and that such loss of voice and its effect upon the proposed occupation of the party injured would be a proper subject of inquiry in estimating the damages to which he would be entitled.

It is urged, however, that the petition in this case making no mention of the fact that the plaintiff was preparing for a particular profession or occupation, no recovery can be had because the injury tending to prevent his following such occupation is not specially pleaded. In this we think the plaintiff in error is wrong. The plaintiff was not claiming special' damages because he had been interfered with- in doing a particular thing,' but he claimed damages because of an injury which he received and which injury must necessarily result in affecting his ability to do work which lie otherwise might have done. Under the allegations of this petition it was competent for the plaintiff to show what work he was doing and what work he would be able to do, or probably be able to do but for this injury, and how the injury would affect his ability to do that kind of work.

Complaint is further made that the court permitted to stand an answer made by a witness that an examination of the plaintiff showed an injury to his arm, when there was no allegation in the petition that he received an injury to his arm, or that he claimed anything on account of such injury. The answer came to a question as to the condition in which the plaintiff was and the witness, in giving the answer, spoke of this injury to the arm, and this lie necessarily spoke iff if he gave a complete answer to the question, and it is of course true that the plaintiff was not entitled to recover by reason of the injury to the arm,-not having pleaded it, nor was any recovery allowed therefor.

The court in its charge read to the jury the charges of negligence in the petition and the averments therein as to the injuries sustained and then said: “You will be confined in your consideration as to his loss to the personal injuries which he received and the other damages as recited and alleged in this petition. ’1

From this it seems clear that the jury were not permitted to consider any injuries other than such as are alleged in the petition, nor can anyone suppose from reading this record that what was said about the arm affected the verdict one iota. But, it is said, the amount allowed, $9,000, is excessive.

We are not prepared to assent to this proposition. It was conceded at the trial that the plaintiff was in the best of health before the injury and that he was injured by the negligence of the defendant, and the testimony. clearly shows that he received such an injury as must have caused him very great pain ; that he has suffered greatly from it ever since; that his back is probably permanently injured; that his leg and ankle were crushed; that the bones in his leg and ankle were fractured; that there was great injury to his knee and that his nervous system was shattered to a great degree. Of course the measure of damages in such a case is not what one would expect in money to have such an injury inflicted upon him, but it must be compensation so far as money can reasonably compensate for the real injury received, including the physical and mental pain as well as the direct loss in earning capacity.

An examination of this record fails -to show any error which would justify a reversal of the judgment of the court below and the same is affirmed.


text:
    MEASURE OF DAMAGES FOR. FAILURE TO FURNISH MATERIALS TO A SUB-CONTRACTOR.
    Circuit Court of Cuyahoga County.
    William R. Benson, Trustee, v. The Van Dorn Iron Works Co.
    Decided, December 14, 1908.
    The measure of damages for breach of a contract to furnish materials to a sub-contractor on a building job is not the profit that might have been made if the materials had been furnished, but the difference between the agreed price of the • materials and what they would have cost in the market.

      Carr, Stearns & Chamberlain, for plaintiff in error.

      Blmdin, Bice & Ginn, contra.
   Marvin, J.; Winch, J., and Henry, J.,

concur.

The parties here stand in the same relation to each other as they stood in the court below. The plaintiff is the duly elected and qualified trustee in bankruptcy of the estate of the co-partnership of Welsh & Soest. The defendant is a corporation organized under the laws of Ohio. The plaintiff’s petition sets out two claims, on which he says he is entitled to recover against the defendant. The first is based upon this state of facts, as set out in the petition: that one Charles Gilpin had a contract for the erection of a building in the city of Baltimore, Maryland; that in the construction of said building certain ornamental and light ironwork was required; that Welsh & Soest entered into a contract with Gilpin to furnish said ironwork; that such contract between Gilpin and Welsh & Soest was made on.the 31st of October, 1905; that on the 23d day of January, 1906, Welsh & Soest entered into a contract with the defendant by which the defendant undertook and agreed to furnish said ironwork for said building for $20,000 less $450 which it was agreed might be, and finally agreed should be omitted or deducted, because of a change made in the material to be furnished, making the amount which Welsh & Soest were to pay to the defendant $19,550. A part of the contract between Welsh & Soest and the defendant was that Gilpin should became surety for Welsh & Soest to the defendant for the payment of the amount which was to go to it. Gilpin did in writing guarantee this contract to the defendant. The contract between Welsh & Soest and the defendant provided that the defendant should perform the work to the acceptance of the architect and should complete it in the shortest possible time consistent with good workmanship and material. On or about the 26th day of February, 1906, said Gilpin became financially embarrassed and was afterwards adjudged bankrupt, and on the date last named Welsh & Soest notified the defendant of the financial embarrassment of Gilpin and requested the defendant to stop work on the contract until further instructions, and on the 28th of February, 1906, the defendant did stop, in accordance with said request, and agreed to suspend operations in the performance of said contract until further instructions were received, as requested by said Welsh & Soest. Thereafter, Gilpin being entirely unable to proceed with his contract for the construction of said building, such construction was awarded by the owners of same to the Charles McCaul Company, of Philadelphia, and on the 28th of March, 1906, Welsh & Soest entered into a contract with the said McCaul Company to furnish the ornamental and light ironwork of said building for the sum of $23,000, this being the same work and material which was the subject of the contract of January 23, 1906, between the defendant and Welsh & Soest.

On the 28th of March, 1906, the said Welsh & Soest notified the defendants to proceed at once with the performance of the said contract of January 23, 1906, but the defendant refused to proceed and shortly thereafter notified Welsh & Soest that they would not furnish the said ironwork.

By reason of this failure and refusal by the defendant to furnish the ironwork specified Welsh & Soest were unable to fulfill their contract with the McCaul Company and they were notified by the McCaul Company that unless they proceeded with their contract, a contract for such ironwork would be let to other parties and it would hold Welsh & Soest responsible for any necessary excess in cost above the contract price with them; and thereafter, the MeCaul Company did let the contract for this ironwork to the Ilecla Iron Works, of Brooklyn, New York, for the sum of $28,500. The MeCaul Company made its claim against the estate of Welsh & Soest in bankruptcy for the sum of $5,500, being the difference between the price which the MeCaul Company was to have paid Welsh & Soest and the price which they paid the Hecla Iron Works- for the same work and material. This claim was duly allowed against the estate of Welsh & Soest, and because of the facts hereinbefore briefly set forth, the plaintiff says he is entitled to recover, first, $3,450, being the difference between the contract price with the defendant and their contract price with the said MeCaul Company; and also the sum of $5,500, being the amount which the MeCaul Company was entitled to and had allowed out of the estate of Welsh & Soest, as the difference between the $23,000 which the MeCaul Company was to pay to Welsh & Soest and the $28,500 which the MeCaul Company had to pay to the ITeela Iron Works.

The defendant in its original answer admitted the making of the contract between it and Welsh & Soest, and the making of the contract between Welsh & Soest and Gilpin; it admits that Gilpin was obliged to give up the contract, which had to be done on account of his insolvency; it admits- that the contract which had originally been given to Gilpin was afterwards given to the MeCaul Company and that Welsh & Soest on the 28th of March, 1906, made the contract with the MeCaul Company as alleged in the petition. For want of knowledge, it denies that the MeCaul Company notified Welsh & Soest that because of their failure to proceed with the furnishing of the ironwork it would let same to eithér parties, and for the same reason it denies that the MeCaul Company did let the work to the Hecla Iron Works Company and also for the same reason denies that the MeCaul Company did let the work to the Iielea Iron Works Company, and also for the same reason denies the presentation of the allowance of the claim of $5,500 of the MeCaul Company against the estate of Welsh & Soest, and then denies generally any liability on its part to the plaintiff. /

The defendant filed later an amendment to this- answer in which it sets up another defence, which, so far as is deemed necessary, will be considered later on in this opinion.

Upon the trial, at the close of the evidence offered on the part of the plaintiff the court, on motion of the defendant, directed the jury to return a verdict in its favor, which was accordingly done, and judgment entered on said verdict. What is here sought is a reversal of that judgment.

It will be noticed that there is- no allegation in the petition as to the amount which was to be paid by Gilpin to Welsh & Soest, nor is there any allegation that the defendant had any information as to the amount to be paid to Welsh & Soest by the McCaul Company, nor are there allegations that the material and labor to be furnished by Welsh & Soest, or obtained by them from other parties at a price not higher than that which was to be paid to the defendant, nor is there any allegation that the defendant agreed to furnish this ironwork after Welsh & Soest made their contract with the McCaul Company.

When the defendant made its contract with Welsh & Soest it, of course, was bound to have in mind that if it defaulted in its contract, Welsh & Soest would be damaged to the amount that would be required to expend in furnishing this ironwork either by letting the contract to another party or doing the work themselves, but it could not have had in contemplation any profits which Welsh & Soest would make by thereafter miking a contract with the McCaul Company, or anybody else, to furnish this ironwork at a particular price; nor could it have had in contemplation what such other party would be obliged to pay somebody else to complete the work. The measure of damages, therefore, claimed by the plaintiff in each instance, that is, for the profit of $3,550 which it would have made had the defendant furnished the ironwork and McCaul would have paid them for, and the other item of $5,500 which the McCaul Company paid to the Hecla Iron Works Company, and a claim for which it had allowed against the estate of the bankrupts-, would not be the true measure of damages in any event.

And again, so far as appears from the petition, the defendant made no agreement with Welsh & Soest to furnish anything to them after it received notice from them that by reason of the financial condition of Gilpin work must.be suspended upon the contract. Letters were introduced in evidence, one from Welsh & Soest to the defendant, to the effect that work must be suspended upon the contract. To this an answer was made by letter from the defendant to Welsh & Soest, that letter being in evidence, in which the defendant notified them that it would be a loss to them to have the work suspended.

Without considering in detail the various errors complained of in this proceeding, we are of the opinion that with the most liberal construction that can be given to the petition, no special damages such as are prayed for could have been awarded and that since no other damages were claimed, the most that could have been recovered would have been nominal damages. We are further of the opinion that from the evidence of the two letters referred to and from the allegations of the petition, it is not made to appear that the defendant was bound to furnish the ironwork after it received the notice to discontinue the work until further orders.

We reach the conclusion, therefore, that the action of the court of common pleas was right, and the judgment is affirmed.


author: Marvin, J.; 'Winch, J., and Henry, J.,

text:
    EFFECT OF AGREEMENT TO SETTLE CLAIM FOR. LESS THAN THE FULL AMOUNT.
    Circuit Court of Cuyahoga County.
    B. F. Stafford v. L. B. Simmons.
    Decided, December 14, 1908.
    An agreement to settle a disputed claim for less than the full amount thereof is no bar to a recovery of the full amount claimed, unless the less amount is paid.

      J. F. Herrick, for plaintiff in error.

      Dorr F. Warner, contra.
   Marvin, J.; 'Winch, J., and Henry, J.,

concur.

The relation of the parties to each other here is the reverse of the relation in which they stood in the court of common pleas. The terms plaintiff and defendant as used in this opinion will refer to the parties as they were in the original action.

The plaintiff brought suit against the defendant for a balance .claimed ón account of compensation for services rendered by the plaintiff to the defendant upon a farm owned by the defendant in Geauga county, Ohio, said services having been rendered under contract, by which the defendant was to pay the plaintiff at the rate of $50 per month. The defendant by his amended answer denied the allegations of the petition, and further says that a settlement was made betwen the parties in June, 1905, by which settlement it was agreed that the defendant should pay to the plaintiff, in addition to what he had already paid, the sum of $50 in full settlement of the balance claimed.. To this the plaintiff replies, denying that the settlement pleaded was ever made. It will be noticed that the defendant does not aver that the $50 was ever paid, so that with the answer not replied to the plaintiff would have been entitled to recover $50. But the evidence upon whether there was a settlement and what the terms of such settlement were, if one was made, is conflicting. It is agreed by both parties that a writing was signed at the time the settlement is claimed to have been made. The defendant says that snch writing had a provision in it that released him, after he had paid some $20 or $25 and a further payment of $50 within ninety days and that the same should constitute a complete settlement of the balance claimed. The defendant, however, admits that he never paid the $50, so that even upon his theory it is difficult to understand how the plaintiff can be bound by it, if such agreement was upon a compromise where the parties disagreed about the amount owing by the defendant to the plaintiff. The plaintiff, however, says that the provision of the writing was (which writing is lost) that if the defendant would pay in addition to the $20 paid on that date the sum of $150 within ninety days, it should be accepted in full settlement. ITe agrees with the defendant in saying that nothing has been paid on such settlement, so that whether the statement of the plaintiff or the defendant be the true statement as to this settlement, the plaintiff could not be bound as to settlement by it since it has never been carried out by the defendant. Upon the trial, however, the defendant testified that though he had agreed with the plaintiff to pay him $50 per month, yet that the plaintiff did not faithfully perform on his part, because of the fact that he was addicted to the use of intoxicating liquors, and by such use unfitted himself for the performance of the work he was to do to such an extent that the defendant was thereby damaged, and to such an extent that it' greatly reduced the value of the services of the plaintiff. This testimony is contradicted by the plaintiff and his wife, and the jury were left to determine the weight of this evidence, and unfortunately for the defendant the jury came to the conclusion that he was mistaken in his claim and that the plaintiff performed, as he claimed to have performed, the work which he contracted to do. The result was that the plaintiff recovered a judgment for the full amount claimed by him.

It is said in argument that the jury must have been influenced by prejudice, or it would have made some compromise between the claim of the two parties and brought in a verdict for perhaps the difference between what the defendant admitted that he owed and what the plaintiff claimed that he owed. That juries sometimes do this every lawyer knows, and the practice is severely censured, and the fact that it can only be brought about by guessing that probably the parties are both in the wrong is also severely criticised by lawyers. If the jury believed the testimony of the plaintiff and his wife, in this case, their verdict was what it ought to have been and there is nothing before us which would justify us in saying that the jury did not believe the plaintiff and his wife, nor is there anything to justify us in concluding that the jury ought not 'to have 'believed these witnesses. For aught that appears, it was as probable that the defendant was mistaken and that he magnified the shortcomings of the plaintiff, as to believe that the plaintiff was mistaken and that his wife was mistaken in saying that he performed his work as his contract required him to. The result is that the judgment of the court of common pleas is affirmed.


author: Marvin, J.; Henry, J.,

text:
    ACTION AGAINST A LUNATIC FOR. TORT.
    Circuit Court of Cuyahoga County.
    Minnie Stankus v. Thomas Keiper, as Guardian of Martin Keiper, an Insane Person.
    Decided, December 28, 1908.
    An action for a tort committed by a lunatic must be brought against the lunatic himself; it will not lie against his guardian alone.

      Wm. H. Miller, for plaintiff in error.

      Hitchcock, Morgan & Fackler, contra.
   Marvin, J.; Henry, J.,

concurs;

Winch, J., not sitting.

The petition in this case alleges that the defendant is the duly qualified and acting guardian of Martin Keiper, who is an insane person, and that as such guardian the defendant was and is “in possession of and chargeable with the person and estate of his ward. ’ ’ It then proceeds in these words:

“That upon the 27th day of March, A. D. 1905, the said Martin Keipe^’ with force and arms committed an assault upon the plaintiff for the purpose and with the intent to then and there commit a rape upon her; and that by reason of the said assault, she the said plaintiff then and there being in a delicate state of health by reason of pregnancy, she was bodily injured, her nerves shattered, and her health ruined; that as a reason of the said assault she has been permanently injured and damaged in the sum of ten thousand dollars ($10,000), for which she prays judgment against the defendant as guardian and for her costs. ’ ’

The answer admits the guardianship and denies every other allegation of the petition.

Upon motion of the defendant, the court rendered judgment in favor upon the pleadings, and for this the plaintiff prosecutes error here.

The journal entry in the court below is peculiar and read as follows:

“This cause came on to be heard upon the pleadings and the motion of the defendant for a judgment thereon; and upon due consideration thereof, the court finds that on the pleadings the answer of the defendant is a valid defense to the cause of action set forth in the petition, and said motion is granted. It is therefore considered that said defendant go hence without day and recover of said plaintiff his costs herein. Judgment is rendered against the plaintiff for her costs herein. ’ ’

The reason given in this entry is wholly insufficient to justify the judgment; the answer being a general denial required no reply, and left the issue squarely to be tried, if the petition made any allegations which, unanswered, entitled her to relief against the defendant. We find, however, that it contained no such allegations, the ward not being joined as defendant in suit.

If the allegations of the petition are true the suit should have been against the ward.

The case of Johnson v. Pomeroy, 31 O. S., 247, is cited by plaintiff because of this language in the opinion, found on page 249:

“The estate of an insane person passes to his guardian by relation, as of the date of the adjudication of insanity, as in the case of a deceased person, it passes to the executor or administrator as of the date of the death. ’ ’

From this is is argued here, that since in the ease of a claim against the deceased person suit would have to be brought against the administrator or executor, for the same reason a claim against the ward should be sued against the guardian. This reasoning is not sound. In the one case there is but one person who can be sued, to-wit, the representative; in the other case there is a person to be sued, the one against whom the claim exists. True, his estate is under control of another, and out of this estate whatever judgment is obtained must be paid, but it must be paid because it is established against the debtor himself.

In a suit for damages, either upon a contract or for a tort, whether it be for a claim against an insane person, is -not a suit against an estate, it is in either case a suit against a person. And, as already said, since in the one case there is but one person who can be sued, to-wit, the ■ administrator or executor, he is the one necessarily to be sued, while in the other case the very person against whom the claim exists is in esse, he is the “real person in interest, ’ ’ and is therefore the one and the only one against whom judgment can be -obtained.

In Johnson v. Pomeroy, supra, it is said in the opinion on page 248, that:

“An insane person may be sued and jurisdiction over his person acquired by the like process as if he were sane.”

In Este v. Strong, 2 Ohio, 405 (Century Annotated Edition), it is said in the first clause of the syllabus:

“A ward will not be bound by a decree affecting his property where the guardian was a party to the suit but not the ward.”

In the case last cited the court points out in the opinion the necessity of making the ward a party, that he may have his day in court, otherwise, as is there said, the ward is deprived of showing that the one claiming to be, or who is sued as guardian, is not in fact such, or whatever fact might be a complete' defense which the guardian might fail to make.

In Morgan v. Hoyt, 69 Ill., 489, it is held, that conservators can be sued for a claim against their wards, but this is put distinctly upon the ground that the statute expressly authorizes such suit to be brought.

In Coombs, Guardian, v. Janiover, 31 New Jersey Law, 242, it is held that:

“A suit will not lie against the statutory guardian of a common drunkard on a note made by such drunkard prior to his appointment of the guardian. The suit in such case must be against the ward.”

And in the opinion, page 242, it is said: .

“The statutes place the drunkard, with regard to his relation to his guardian, very much on the same footing with the lunatic, and the legal status of the latter is well defined. Lunatics can sue and be sued and the suits must be prosecuted and defended in their own names.”

i

In the same opinion, the court, speaking of the claim made for a contrary opinion says:

“It was also suggested that relationship between these parties resembled that of an administrator and decedent. But there is not a word in the act which would justify the conclusion that the drunkard was to be regarded as civiliter moriuus.”

And again speaking of the guardianship of a lunatic, the court says:

“It has never been supposed that such a guardianship absolutely absorbed the personality of the ward.”

In Rodgers v. Ellison, 19 Tenn., 88, it is said in the syllabus:

“An action at law can not be sustained against a person in the character of guardian of a lunatic without joining the non compos in the action as a party defendant. ’ ’

The opinion of the court in this case covers the present case completely, and in part reads:

“The question raised by the record in this case, and discussed at the bar, is whether the.guardian or executor of a lunatic can be sued in an action at law, in that character, without joining in the action, as a party defendant, the lunatic himself? It is well settled in England, that at law the non compos himself must be a party plaintiff when suing, and a party defendant when sued.
“Upon this question there has never in their courts been any controversy whatever. As to the property of the lunatic, the guardian being but a steward, bailiff, or agent, it does not vest in him, but remains, so far as title is concerned, in the lunatic himself.
“The formal service of process, indeed, upon one deprived of his reason, may appear not without some degree of absurdity. But that he should be a party, so that the judgment may be rendered against him, and the execution issue against his estate, involves not only no absurdity, but is very proper and necessary. To render the judgment against the guardian, and issue the execution against his estate, would involve in it no absurdity only, but injustice.”

We reach the conclusion that the judgment of the court below was right, though not for the reason given in the journal entry, but because no ease was made in the petition against the defendant. The judgment is therefore affirmed.