text:
    DEGREE OF CARE REQUIRED IN USING STREET.
    [Circuit Court of Lucas County.]
    Emil Lalond v. City of Toledo.
    Decided, October 20, 1904.

      Charge of Court — How Applied by a Reviewing Court — Injury to Bicycle Rider — Care Required of — In Observing Obstructions in Street — Negligence.
    1: The charge to the jury will be applied by the reviewing court to the state of facts which, was shown to exist.
    2. The duty to use reasonable precautions for his own safety, when applied to one riding a bicycle upon an asphalt street, does not require him, as a matter of law, to keep a lookout for such particular obstructions in the street as are formed by loose paving blocks which have fallen from a wagon, and of the presence of which the rider has no knowledge.
    Parker, J.; Hull, J., and Haynes, J., concur.
   An opinion was delivered in this' case last Monday. Our decision was that the judgment of the court below should be affirmed. The complaint made by the plaintiff in error is chiefly, perhaps solely, that the charge of the court below on the subject of contributory negligence was wrong. We concluded that although it was not above criticism it would pass muster. Without any motion for a rehearing having been made, but simply upon our own motion, after thinking more of the case, and looking into it again, we conclude that we were wrong upon one proposition involved in the case, and therefore we will now proceed to revense ourselves; not that we are apprehensive that the Supreme Court will do it if we do not, because we understand that the plaintiff in error is a young man in very moderate circumstances, who perhaps can not go to the Supreme Court with his ease; but we do it because we think it should be done and because our blunder is likely not to be corrected unless we correct it.

The young man was riding upon a bicycle upon Collingwood avenue, in the night season, when he ran upon some loose paving blocks, and was thrown from his bicycle and injured. He charged that the city was negligent in allowing those paving blocks to be upon the street. The street is paved with asphalt-urn, and these paving blocks were something entirely foreign to the street. It appears that another street was being paved in the vicinity with paving blocks, and in hauling them along this street, some of them had dropped off the wagon, and it was upon some of these that he ran. He was familiar with the street and accustomed to go over it with his bicycle, and the street, aside from these obstructions upon it, was smooth and hé could ride his bicycle upon it with safety even in the night time. The cause was submitted to the jury, and it found for the city.

Amongst other things in the charge of the court on the subject of contributory negligence, this was said, with respect to the duty of the plaintiff below: “He must keep a reasonable lookout for to avoid injury to himself.” The court follows that by saying, “He has a right, as I instructed you before argument, to presume that the city keeps its streets reasonably safe for travel, but he is not excused from using reasonable precaution for his own safety.”

When we came to consider that and discuss it before, we concluded that it ’meant no more than that he must use reasonable precautions for his own safety, and saying that he must keep a lookout amounted to no more than saying that he must use his sense of sight as well as his other senses. But we conclude, upon further reflection and examination of the authorities, that this must be held to mean, and that the court charged, as a matter of law, that one in his situation riding a bicycle upon a street, must keep a lookout for the kind of obstruction that caused him this fall and injury. In other words, we must apply the charge to the state of facts which was shown to exist. Tie charges specifically in his petition that he was injured) in this way by these blocks in this street, and that he did not see ■and had no knowledge of their presence there. It is stated in the bill of exceptions that he introduced evidence tending to establish all of the allegations and all of the facts stated in his pleading, and furthermore, that his evidence to the effect that he did not see or know of this obstruction in the street was not contradicted at all; that there was no evidence tending to controvert that.

This seems to us to charge in effect that although he had a right to presume that the city kept the street reasonably safe for travel, and although he was only required to use reasonable precaution for his own safety, yet, as a matter of law, as one of these precautions, he was bound to keep a lookout; and (applying it to the state of facts shown here) he was bound to keep a lookout for loose, blocks that form a hindrance and obstruction to travel, lying upon the street, where they have no business to be, although (-as the court says) relying upon the presumption that the city kept the streets in proper condition, he need not apprehend that they would be there. The jury may have found that if he had kept such lookout as the court said he should, he would have discovered these blocks, and that failing to discover them was his fault, and that being thus in fault he was not entitled to recover.

We had a similar charge under consideration in the case of Ohliger v. Toledo, 20 C. C., 142, a case in which a person was injured while walking over a defective sidewalk. Our attention had been called to that ease, and we had looked at it. We thought we discovered a distinction between the two eases, but upon further examination we conclude that there is no substantial distinction to be made. There, the charge, page 769, was:

“The law imposed upon the plaintiff the duty to be upon the lookout while walking upon the sidewalk, and to use ordinary and reasonable care for his own safety, and, if, by the exercise of such care, he might have avoided the injury, and failed to use such care, then in this action he can not recover against the city.”

The construction that was put upon that language as applied to the facts and1 circumstances of the case, was that it required of the plaintiff in that ease that he must keep a lookout for holes or defects in the walk. The court must be presumed to have charged with reference to the facts of the case, and that was the only reasonable application that could be made of the charge. As said by Judge Hull, on page 770, in delivering the opinion:

“If the construction is to be placed upon that paragraph which is sought' to be placed upon it here [speaking of a paragraph quoted from a text-book] that, as a matter of law, when walking upon a sidewalk, one is bound to be upon the lookout for holes in the walk, then we think that it does not state the law correctly.”

In the course of that opinion, Judge Hull cites and comments upon a great many authorities'. I shall not take the time now to go over them, but I simply call attention to them. They furnish a very full and complete brief upon that point, and we think that they very fully sustain the conclusion at which the court arrived in that case, and we think, as I have said, that that ease is not to be distinguished from this on any substantial ground.

One when going along a sidewalk or a street of a city, where it is ordinarily smooth and level, may not be required to exercise the same caution that he would upon a rough road, a road that he knows to be rough, or a road that he knows to be defective; and some of these cases cited in Ohliger v. Toledo, supra, are cases where persons walking along sidewalks or driving along streets, instead of keeping their eyes upon the street or sidewalk, have been looking elsewhere; one case being that of a lady who while looking into an attractive show window, assuming that the sidewalk was smooth and all right, stepped into a hole. There are great many illustrations of that kind. Of course; one walking along a rough road or a road where he knew there was something to be looked out for, would not be excused in thus conducting himself, in looking here and there and everywhere. He must look out for his footings. But one traveling on a smooth street in a city should not be charged with the duty of looking out as a proposition of law, but it should be left to the jury to say whether, under all the circumstances, he should have been looking ahead so as to have discovered the defect, or the obstruction. And on account of this error in the charge, the former affirmance will be set aside and the judgment will be reversed.

A. G. Duer and C. S. Northup, for plaintiff in error.

U. G. Denman, C. K. Friedman and Frank Crane, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    UNCONSCIONABLE CONTRACT OF EMPLOYMENT.
    [Circuit Court of Franklin County.]
    Robert S. Jennings v. George A. Bethel.
    Decided, November, 1904.

      Master and Servant — Contract of Employment Between — Will Not be Enforced by a Court of Equity — Where Earsh and Unconscionable.

    A contract of employment whereby the employe is bound for two years and the employer for only one week, and which gives the employe no redress against discharge at any time without cause, but prohibits him from entering the same line of business for eighteen mouths thereafter, whether the employer continues in the same business or not, is so harsh and unconscionable that it will not be enforced by a court of equity at the suit of the employer who seeks to enjoin the employe from engaging in the same line of business after Ms discharge without cause.
    Dustin, J.; Sullivan, J., and Wilson, J., concur.
   June 9, 1903, George A. Bethel, doing business under file-name of the Merchant’s Premium Stamp Company, and Robert S. Jennings executed the following article of agreement:

“This agreement, made and entered into this- 9th day of June, 1903, by and between the Merchant’s Premium Stamp Company, of Columbus, Ohio, party of the first part, and Robert S. Jennings,, of Columbus, Ohio, party of the second part,

“Witnesseth That the party of the first part hereby agrees to employ said! second party for the period of two years, commencing on the 9th day of June, 1903, to work for said the Merchant’s Premium Stamp Company, and to perform such duties as may be assigned! to him of required of him by said party of the first part, for which services, said first party agrees to pay the sum of twenty ($20) dollars per week, to said party of the second part, and also pay all the necessary expenses of saidi second party, which he shall expend for the benefit and welfare of said party of the first part.

“In consideration of the above premises, the said second party hereby agrees that he will faithfully perform the duties assigned to him by the said first party, and work solely in the interest of said the Merchant’s Premium Stamp Company, in all matters relating to said employment, and to the best of his ability..

“It is further agreed by the parties hereto, that said party of the first part shall increase the salary of said party of the second part, whenever, in the opinion of said first party, the work of said second party merits such increase, or when the increase of business of said -company, due to the labor and efforts ,of said second party, merits the same.

“It is further agreed by and between the parties hereto, that said party of the first part shall deduct from the salary and expenses of said second party such proportion thereof as corresponds to the time lost by said party of the second part without the fault of said party of the first part.

“It is further agreed by the_ parties hereto that said party of the first part has the right and privilege to terminate the employment of said party of the second part at any time if said party of the first part ceases to do business or if said business does not justify the further employment of said second party.

“It is further agreed by and between the parties hereto that said Robert S. Jennings, party of the second part, shall not engage in, or work for, any other premium stamp company, or any discount, coupon, or premium stamp concern, in "any one of the cities, counties or states named as follows, Ohio, Indiana and Kentucky, and where said party of the first part is now or hereafter shall be engaged in business, for the period of eighteen months after the employment of said party of the second part by said party of the first part shall, for any reason whatsoever, cease.

“In witness whereof, the said parties hereto have signed their names, at Columbus, Ohio, this-day of June, 1903.

“Robert S. Jennings.

“Merchant’s Premium Stamp Co.,

“Per G. A. Bethel, Mgr.

“Signed in presence of “Bess Jinks.”

October 30, 1903, Bethel filed a petition in the Common Pleas Court of Franklin County, alleging that pursuant to the above agreement Jennings entered his employment on the 9th of June and continued until the 8th of October, 1903, “when said employment ceased”; that “during said employment defendant (Jennings) was instructed in all matters concerning plaintiff’s said business, and became acquainted with most of plaintiff’s merchants.” Then follow allegations that Jennings has threatened to injure plaintiff’s business!, and has in violation of his agreement engaged in the premium stamp business in Columbus, etc.

Upon this petition Bethel obtained a temporary restraining order restraining Jennings “from performing any act or acts to the injury of plaintiff’s business, and from joining in, or working for, any premium stamp company or any discount, coupon or premium stamp concern within the state of Ohio, until the further order of this court.” Defendant demurred to the petition, but same was overruled.

A motion to dissolve said restraining order was then filed in behalf of Jennings', heard upon affidavits and a deposition of plaintiff, and overruled.

A motion for a new trial was also overruled, and the case came to this court upon a petition in error to reverse the said judgment of the common pleas court.

In our opinion the contract above quoted is so harsh and unconscionable that it ought not to be enforced by a court of equity in behalf of Bethel.

It undertakes to bind Jennings for two years, but does not bind Bethel for more than a week. The discretion as to the termination of the arrangement is wholly with Bethel who may discharge Jennings without good cause (as is claimed in this case) and the latter not only has no redress, but is prohibited for eighteen months! thereafter from engaging in a similar business — no matter whether Bethel continues in that business or not. Paragon Oil Co. v. Hamilton, 5 N. P., 23.

F. S. Monnett, for plaintiff.

Bachman & Bachman, for defendant in error.

The petition does not allege any incompetence or unfaithfulness on the part of Jennings, nor any cessation of or decrease in the business, such as would' render the further employment of Jennings unnecessary or unprofitable; nor any reason whatever for his discharge.

We think, therefore, that the court erred in overruling the demurrer to the petition, in overruling the motion to dissolve the restraining order, and in overruling the motion for a new trial.

The judgment o>f the common pleas court will therefore be reversed, and the restraining order dissolved.


text:
    SUBROGATION OF A LIFE TENANT PAYING VALID ASSESSMENTS.
    [Circuit Court of Lucas County.]
    Charlotte Eddy et al v. William H. Leath, Administrator, et al.
    Decided, June 18, 1904.

      Subrogation — Voluntary Payments of Valid Assessments — By a Life Tenant — Action to Enforce Subrogation — Governed by the Ten-Year Limitation.

    1. The doctrine of subrogation rests generally upon tbe principle that one who, for the purpose of protecting his own interest in tlie property, pays tbe debt or liability of another, is entitled to and may enforce all the liens and securities of the party to- whom he pays.
    2. A life tenant, who under an agreement of occupancy pays certain valid assessments1 against the property which she is under no lobligation to pay, is not a mere volunteer when it appears that the county treasurer refused to accept the general taxes, which she was bound to pay, unless the assessments were also paid, and failure to rnalse such payment would render the property liable to sale both for taxes and assessments; and having paid such assessments, the life tenant is subrogated to the lien of the .assessments, although she paid them without protest, and made no demand therefor upon the owner of the fee in remainder who was; liable for their payment under the agreement.
    3. An action to establish and enforce a lien of an assessment is, under the equitable doctrine of subrogation, neither an action at law, nor upon contract, nor one founded upon a liability created by statute, and is therefore governed by the ten-year limitation prescribed by Section 4985, Revised Statutes.
    Hull, J.; Parker, J., and Haynes, J., concur.
    Error to- Lucas County Common Pleas Court.
   This action was brought in the court of common pleas by the plaintiffs in error, who were plaintiffs below, against Hester Whitlock, who iwas then living. After the commencement of the action she died, and the action was revived against William H. Leath, her administrator, and the other defendant, William Whitlock, husband of Hester Whitlock.

The action was brought to quiet the title of the plaintiffs to certain real estate in the city of Toledo, of which they claimed to bo and were the owners in fee simple, and the defendant, Hester Whitlock, was, as stated in the petition, the owner of a life estate in this property, by virtue of a certain contract between the parties; and it was alleged in the petition that Hester Whitlock and her husband, William Whitlock, the original defendants, claimed some interest in the property beside the life estate. Plaintiffs prayed that Hester Whitlock should be decreed to have a life'estate only in the property, and that the title of plaintiffs in remainder be quieted as to said Hester Whitlock and her husband, and that it be adjudged that on the death of Hester Whitlock the plaintiffs were entitled to the immediate possession thereof.

The defendant, Hester Whitlock, by her answer, and her administrator after her death by an amended answer and cross-petition, set up her claims upon this property. It is admitted that Hester Whitlock was holding it by virtue of a contract which gave her a life estate, that the plaintiffs were the owners of the fee simple in remainder, but a lien was claimed on the property for certain assessments that Mrs. Whitlock had paid for sewers and paving and sidewalks while occupying the property, her claim being for $1,069.82, which she claimed from the year 1889 down to the commencement of the action in March, 1901. She asked to have that declared a lien upon the property, and that unless paid by the plaintiffs that the property be sold to satisfy it.

Hester Whitlock had been theretofore the wife of a Mr. AVilcox. After his death she married Mr. Whitlock. The plaintiffs were the children and only heirs of AVilcox, and had entered into the contract, which I have mentioned, with Mrs. Whitlock in regard to the occupancy of this property, and it is upon this contract that the rights of these parties are based. It is as follows:

“In consideration of one dollar to us in hand paid by Hester Wilcox, of Toledo, O. (and love and affection), we, Charlotte Ed'dy, Matilda A. Lloyd and Mary J. Waehter, of same place, hereby consent and agree that the said Hester Wilcox may occupy, so long as she lives or wishes to, the following described premises, viz.: Lot No. 1560 and the southwest sixty feet of lot No. 1561 in the Vistula division of Toledo, Ohio, subject to the condition that the said Hester Wilcox shall pay all the taxes and assessments levied and assessed thereon during her said occupancy, other than those for sewerage, grading, paving or sidewalk.”

There is also a claim in the cross-petition for sidewalks, and one also for sewerage.

'The contract, it will be observed, provides that Mrs. Whitlock should pay the taxes and assessments upon the property during her occupancy, other than those of sewerage, grading, paving or sidewalks, and she claims her lien upon and her right in the property for the amount she paid for sewerage, grading, paving and sidewalks. The court of common pleas found that within.ten years before the commencement of the action, including interest thereon, she had paid $1,154.32 for paving and sewer assessments against the property, and it was ordered that this be made a lien upon the property, and, if not paid, the property be sold to satisfy it. The claim for sidewalk assessments was- disallowed by the common pleas court upon the ground that at the time they were paid by Mrs. Whitlock they had not been levied and assessed upon the property, only the preliminary notice having been given to her; and no cross-petition in error having been filed by the defendants in error, that question is not before us.

It is claimed by the plaintiffs in error that Mrs. Whitlock was not entitled to this relief for the reason that the payments made by her were voluntary; further, that she was not entitled to be subrogated to the lien of the state or municipality for the assessments that she had paid; and further, that the six years statute of limitations applies, and that all payments that fell outside of six years were therefore barred, instead of ten years, as held by the court of common pleas. We are asked, therefore, to reverse this judgment.

It is claimed that Mrs. Whitlock, in making these payments, was a mere volunteer. The record shows that the assessments were all paid by her or by money furnished by her. The money was taken to the treasurer’s office by her husband in most instances, if not in all, as .appears by the record. In our judgment the contention of the plaintiffs in error can not be maintained. Mrs. Whitlock was occupying this property -under this contract which I have read. She was bound by it to pay the general taxes. These assessments that were paid by her it was the duty of the plaintiffs in error to pay, by virtue of this contract. They became liens upon the property* were put upon the tax duplicate, and the property was liable to be sold to pay them. She could not pay the general taxes without paying these assessments. A portion of the taxes due upon the property would not be accepted by the treasurer. She was compelled either to pay these assessments or to allow all of the taxes and assessments to go unpaid, and render the property liable to sale, not only for the assessments but for the payment of the general taxes. It seems to us that one who pays an assessment under those circumstances can not be called a mere volunteer — one who has simply interfered with another, paying the debt of another without any reason for so doing. It is, of course, well established, that where one is a mere volunteer, and without any duty resting upon him, pays the debt of another, he does it voluntarily, and has no right of action, and can not recover. In our judgment Mrs. Whitlock was not in that situation. This contract existed between her and these parties. They did not pay the .assessments which they were bound-to pay, and unless she paid them, these results would follow. We think, therefore, that the claim that she was a mere volunteer can not be sustained.

It is claimed that in any event she was not entitled to a lien, but it is claimed for her that she was entitled to it by right of and under the doctrine of subrogation.

The doctrine of subrogation as applied to this case is an equitable doctrine, and rests generally upon the principle that where one pays the debt of another, or a claim against another, to protect his own interest in the property, he is entitled to all the liens and securities that the party has to whom he pays the claim. In Joyce v. Dauntz, 55 Ohio St., 538, in the first paragraph of the syllabus, this is said:

“As a general rule, any person having an interest in property subject to an incumbrance which may defeat or impair his title, has a right to disengage the property by payment of the incumbrance, and when he does so, if the .debt is not one for which he is personally liable, he is entitled to be subrogated to the rights of the incumbrancer against the property. ’ ’

It seems to us that Mrs. Whitlock comes within the rule laid down by the Supreme Court in this ease. She had an interest in this property, a life estate, and by reason of these assessments not being paid they had become a lien and incumbrance upon the property, which was liable to be sold for their payment; and by reason of their being in default, as I have' said, she was unable to pay the general taxes upon the property, and in order to protect her interest from this incumbrance, to enable her to pay all taxes,' she paid the assessments. It is true as argued by counsel, that she made no demand of these parties to pay these assessments, and it is true that she paid them to the treasurer without protest. The fact that she did not protest can make no difference in this ease. As between her and the treasurer, or between the property and the treasurer, there was no defense to these assessments. It is not claimed that they were invalid, and' npt a valid and binding lien upon the property. She could make no defense in behalf of the property -against the treasurer, and there was no reason why she should protest to the treasurer. The city was entitled to the assessments, she was occupying the property as a life tenant and paid them, and thereby paid debts that were due from the plaintiffs in error, thus relieving the property which they owned in fee simple, subject to her life estate, from these liens, and as a result benefited the owners of the fee simple to the amount of the assessment — something over a thousand dollars.

Simmons v. Lyles, 73 Va. (32 Gratt.), 752, is very much in point. Here a widow was occupying the manor house after the death of her husband, and paid certain .taxes upon the property which she was not bound to pay, but they were a lien upon the property, and it was held that she was entitled to be paid the amount of the taxes which she had paid, and that they were a lien upon the property. The court say on page 762:

“Subrogation is the creature of the chancery courts. It is not founded upon any idea of contract, but upon principles of equity and good conscience. It is a mode which equity adopts to compel the ultimate discharge of a debt by him who in good conscience ought to pay it (Brandt, Suretyship, Section 260). It is not essential that the party invoking the remedy should technically occupy the position or relation of surety for the debt. It is enough that he is required to pay for his own protection and indemnity, or to relieve his estate of a subsisting lien or incumbrance accruing by operation of law, or created by act of the party in whose behalf the payment is made. The appellant, in paying the taxes, can not be considered a volunteer. The property of which she had possession under the statute was debtor to the state, and she had the right to make the payment for her own protection and indemnity, and to look to the property for reimbursement.”

Mrs. Whitlock was situated very similarly to the party in the Virginia ease. It seems to us entirely equitable and just that these assessments that were paid by her, and which ought to have been paid by the plaintiffs in error, the payment of which protected their estate -as well as hers, should be repaid to her, or her estate, and should be held to be a lien upon the property.

■It is claimed, however, that all these payments were made six years before the commencement of the action, and are barred by the statute of limitations. It is urged that the six years statute, Section 4981, Revised Statutes, governs this case. It is as follows:

“Within six years:

“An action upon a contract not in writing, either express or implied.

“An action upon a liability created by statute, other than a forfeiture or penalty.”

It is claimed by defendants in error that Section 4985, Revised Statutes, applies:

“An action for relief not hereinbefore provided for can only be brought within ten years after the cause of action accrues.”

The court below held that the ten year statute applied and not the six year statute, -and allowed all coming within the ten years, to the amount of $1,134.32.

Mrs. Whitlock based her action upon her right of subrogation. It is not an action at law, but she is asking to have a lien established upon this property under this equitable doctrine, and the property held for the payment of the assessments. We are of the opinion that the court of common pleas was correct in holding that the ten year statute applies, and not the six. The six year statute relates to actions upon contracts, either express or implied, and upon liabilities created by statute other than forfeiture or penalties. Her right of subrogation does not rest upon contract, either express or implied. Under the strict rules of law she would have no cause of action. Her claim is based upon the equitable doctrine of subrogation; that having paid the 'debts of another under such circumstances, she has the right to have the benefit of whatever securities or liens secured the debt. Nor is her claim an action upon a liability created by statute, although the statute gave to the treasurer a lien and a right to maintain an action for these taxes. We think it has been settled by the Supreme Court of this state that the ten year statute applies.

A case cited by plaintiffs in error to sustain the proposition that the six year statute applies—Hartman v. Hunter, 56 Ohio St., 175, a case that went up from this county. It is said in the syllabus:

“A civil action brought by the treasurer of a county under Section 1104, Revised Statutes, to enforce assessments for the construction of township ditches, is, by the second clause of Section 4891, Revised Statutes, barred in six years after the cause of action arises.”

This action was brought by the treasurer, as appears from the syllabus, under Section 1104, Revised Statutes, to collect assessments and subject the property to-the payment of them, to enforce a lien against the property. The action was brought according to the provisions of this section, and was based upon it, and the Supreme Court held that it being such an action, the treasurer was within the limitations of Section 4891, Revised Statutes, the same as any individual, and that therefore the action was barred. This action of Mrs. Whitlock’s as set forth in her cross-petition is not based upon a statute, but upon her right to subrogation and to have the benefit of this lien that had been created, and such an action, we think, is only barred in ten years. Zuellig v. Hemerlie, 60 Ohio St., 27, second paragraph of syllabus:

“An action by a surety who has paid the debt of his principal to be subrogated to a mortgage held by the creditor as additional security for such debt is governed by Section 4985, Revised Statutes, and will be barred by lapse of time, unless brought within ten years from the time the cause of action accrued. ’ ’

King & Tracey, for plaintiff in error.

Potter & Potter, for defendants in error,

Another case, Poe v. Dixon, 60 Ohio St., 124, is also in point on this question.

In this case there is a discussion of this question in line with Zuellig v. Hemerlie, supra. Neal v. Nash, 23 Ohio St., 483 which is cited in Zuellig v. Hemerlie, has this in the second paragraph of the syllabus:

“The statutory period of limitation applicable in such an action — it being for equitable relief only — is ten years.”

The court say on page 490 of the opinion:

“A judgment on a contract, expressed or implied, is not sought; nor is the relief sought based on a contract as the ground of an original recovery, but it rests merely on the just right of the surety to a judgment already existing. The action is grounded, on the equitable right of the surety, whether by assignment of the creditor or by subrogation merely, to stand in the shoes of the creditor in the judgment against his principal, and in the place of the creditor, to enforce it against him. The action is brought to assert this equitable ownership of the judgment, and, being dormant, to revive and enforce it in favor of the party justly entitled to it. The action, therefore, being purely equitable in its character, and not seeking a recovery on an implied contract, is not controlled by the limitation of six years. ’ ’

It is said this, perhaps, was dictum, and not necessary to be said by the court in deciding that case, but Judge Bradbury refers to it in Zuellig v. Hemerlie, supra, as sound doctrine, and whether dictum or not, worthy of consideration by the court and of being followed by it. The theory that the lien was assigned to Mrs. Whitlock, and that therefore her right would fall at the end of six years, is not sound, but her right of subrogation is based upon this equitable principle, and her action is founded on that, and not upon any contract, express or implied, nor upon a statutory liability.

The judgment of the court of common pleas will be affirmed.


text:
    PROVISIONS OF A WILL CONSTRUED.
    [Circuit Court of Pike County.]
    Ethel McDaniels et al v. Frank M. Hays.
    Decided, May, 1905.

      Wills — Technical Words and Words of Limitation — “Heirs”—'“Share” —“Residuum"—Clauses Cutting Down an Estate — Must he Clear and Unambiguous — Vested Remainder.

    The word “heirs” as used in the will under consideration is not a word of limitation; and it is manifest that ,tibe testator intended to dispose of a vested interest in the property devised, and the ambiguity found' in a subsequent item of the will can not be held to authorize a cutting down of the interest so conveyed.
    Jones, J. (orally); Chbrrington, J., and Walters, J., concur.
    This ease was brought on error into this court from the court of 'common pleas. The petition in the court below was filed by the three children of Isaac W. Hays, asking for the recovery of certain real estate, to set aside the deed that Frank M. Hays had received from Isaac W. Hays, or to have the court of common pleas pronounce it null and void.
   The title of the defendant rests upon the construction of the will of one James W. Hays, who died_ in May, 1895, leaving a will that was executed in 1890, and a codicil thereto which was executed in 1895. The petition sets forth a portion of said will sufficient to have the court's construction as to the title of the property in question.

The petition alleges that by the terms of “Item 1” of this will, James W. Hays gave to his wife, Aurilla Hays, certain real and personal property during her life; that what is termed the home farm, consisting of two tracts of one hundred acres and ninety-three acres, respectively, was given by the provision of “Item 1” to his two sons, Frank M. Hays and Isaac W. Hays, fhe petition setting forth the terms of that item, as well as the two following items of that will.

The petition alleges that by “Item 3” of the will, the testator provided that if either of his said sons should die before his said wife, then the share of said deceased son shall go to his heirs.

It appears that Isaac conveyed the ninety-three acre tract, or attempted to convey the same, to his brother Prank, February 25, 1901. That on June 7, 1901, Isaac W. Hays predeceased his mother, who died in August, 1904, so that the question arises in this case whether or not under the terms of this will Isaac W. Hays had such vested interest devised to him by ‘' Item I ’T that he could convey the same; or, if he died before his mother, whether he had any interest that he could convey?

A demurrer was interposed to the petition in the common pleas court and was sustained, and it is to the action of the lower court in sustaining that demurrer that error is predicated here.

The will of the testator, James W. Hays, has been attached to the petition as an exhibit, and made a part of the pleading. The first contention of the defendant’s counsel is, that the technical word “heirs” contained in “Item 3” of this will is a word of limitation merely, and that the property given to Isaac W. Hays in the prior item of the will is a vested interest. Without discussion it is sufficient to say that the word “heirs” used in “Item 3” of this will is not a word of limitation'. It is true these technical words may be sometimes construed as words of limitation, but in this will there is no question in our minds but that in the event of the death -of Isaac W. Hays before his mother, then the property referred to in “Item 3” reverted to his heirs, or, in this case, to his children. ‘ ‘ Item 3 ’ ’ reads:

“If either of my said sons should die before the decease of my said wife, then the share of said deceased son shall go to his heirs. ’ ’

It was the devise of the testator in “Item 3” in the event of the sons dying before the mother, the property was to become the property of the children. Had this will been prepared prior to 1840, before the rule in Shelley’s case was abrogated as to wills, the claim of the counsel for the defendant in this case might probably be sustained.

It is claimed by the plaintiffs, the children of Isaac W. Iiays, that there is no vested remainder; or, if so,' that it was divested by “Item 3.”

“Item 1” of the will gives to the testator’s wife, Auxilia Hays, all of his property wherever situate, and at his death or after her death, if she survives him, the testator devises the one hundred-acre tract to Frank M. Hays and the ninety-three-acre tract to Isaac W. Hays. This would create a vested remainder. And if there is nothing else in this will divesting the property given in “Item 1,” Isaac W. Hays and Frank M. Iiays have such a vested interest therein that they could convey.

Now then in considering the will in view of what I have said, does ‘’Item 1” convey a vested remainder in these two tracts of land, or especially in the tract mentioned in this case, namely, the ninety-three-aere tract of Isaac W. Hays. And does “Item 3 ’ ’ take away or cut down such interest as may have been vested in Isaac W. Hays ? ‘ ‘ Item 1 ’ ’ reads as follows:

“At the death of my said wife, or in the event she shall again marry, or if I survive her, then at my death, I give and devise the farm on which I reside, containing one hundred and ninety-three acres more or less (being in two tracts, one of one hundred acres and the other ninety-three acres) to my two sons, Frank M. Hays and Isaac W. Hays, in the following manner, to-wit: the said one hundred-acre tract (a part of said home farm as aforesaid) I give to my said son, Frank M. Hays, together with the right to use the cribs and stable standing on said ninety-three acre tract, in common with his brother Isaac W. Iiays. The said ninety-three-acre tract being commonly known as the “Prather tract” and on which my residence stands, I give to my said son, Isaac W. Hays, subject to the use of said cribs and stable given to his bother Frank M. Hays. I give the exclusive use to a certain granary in said crib on said farm of ninety-three acres to my said son, Frank M. Hays; the rights hereby given to my said two sons, I wish them to have so long as they own said farms.”

Taking that item itself, we have no question but that this item gives a vested remainder to the two sons, and that under the ordinary rules governing the construction of wills, Isaac W. Hays would have the remainder in fee simple, And having a vested remainder, he would have a right to sell the farm or to deal with it as his own, subject to the life estate of his mother. It is claimed that the words “following manner” referred to in this item, referred to the property given in “Items 2 and 3.” Evidently the testator intended to refer to the granary and the st-ables and the manner they should be used. “I give and devise the farip. containing 193-acres to my two sons, Frank M. Hays and Isaac W. Hays, in the following manner, to-wit:” And then defining the manner in which they were to be used. Frank was to have the use of certain buildings upon the ninety-threeaere tract devised to Isaac W. Hays. It is to this use we think these words referred.

The contention arises upon “Items 2 and 3” of this will. “Item 2” provides that at the death of the testator’s wife, or in the event that she should marry again, or if the testator survive, then at his death he bequeathes the real estate and chattels to his two sons, “share and share alike.” Or if he should thereafter make an advancement, then an account should be taken of the advancement made to his sons, and that a balance should be struck, so that one should -have a lien upon the undivided interest of the -other provided in Item 2.

‘ ‘ Item 3 ’ ’ reads as follows:

‘ ‘ If either of my said sons should die before the decease of my said wife, then the share of said deceased sons shall go to his heirs. ’ ’

The crucial -point in the case, the main and only question in the-case in our judgment, is what was the intention of the testator when he used the word “share” in “Item 3”? Did he refer to the entire bequests devised to his children, or did he refer to the residue named in “Item 2” of the will?

Taking the will by the four corners, we have given to the will the construction that the word “share” must refer to the prouerty described in “Item 2.” The reading of “Item 1” would bear this conclusion.

Now, he has -devised specifically. The testator has given to Frank the one hundred-acre tract, and the ninety-three-acre tract to his son Isaac. The division of the -one hundred and ninety-three-acre farm has been consummated in ‘ ‘ Item 1. ’ ’ He has disposed of that property.

The testator then takes np another matter, the residuum of the estate, the two farms, the “Hill farm” and “Fayette county farm” and a certain amount of personal property. He devises this residuum “share and share alike,” and in this item is the only place that “share” is found excepting in “Item 3” of the will. He refers to it as an “undivided interest,” but he can not refer to the personal property, because he is unable to say what would be the share upon distribution, because of the fact that advances on security debts may have been made. So that it would be very proper to refer to the residuum as the “shares” of the two sons in this property. Having made a specific division of the homestead into two farms, it is very evident that said Isaac W. could have no “share” in Frank’s farm, and that Frank could have no “share” in the ninety-three-acre tract of Isaac W. Hays. But a share could be had in “Item 2” of this will, because the residuum could come under the provision that the other two farms should be sold for the payment of the debts, and he might- have had in his mind the “shares” that might come into the hands of the executrix. Then if “Item 3” had been stricken out of the will, or if we may consider it as a part of “Item 2” (as it follows immediately after “Item 2”), there can be no doubt that the “share” referred to is the share named in “Item 2.” Their coming so closely together leads us to believe that they were considered as a part of one another. Again he referred to said share as “the share.” “If either of my said sons should die before the decease of my said wife, then the share of my said son shall go to his heirs. ’ ’ What share was “the share,” that he referred to, if not the share mentioned in the clause preceding, known as ! ‘ Item 2 ” of the will ?

Then again, from the will it appears that the testator had set apart this home farm for his two sons. In the will he refers to the farm in the following terms, “that the right hereby given to my said two sons, I wish them to have so long as they own said farms.” And later in the codicil of the will, drawn five years after this will, he has referred to one of these farms bequeathed to Prank, as the one that he had “specifically” devised to Frank M. Hays. And necessarily he has provided, and has evidently thought, that he wanted to make a change on the stable for the convenience of his two sons, and has provided that a suitable stable shall be erected on that part of said farm “specifically devised” to his said son, Frank.M. Hays. And he has provided that a crib that stands on the ninety-three-acre tract be removed, i. e., “to remove thirty feet of the crib that stands on the east side of said ninety-three-acre tract and place it on the most suitable location on the farm devised to my said son Frank M. Hays. ’ ’

Throughout the will we think it was the intention of the testator when he used the word “share” in the way that he did, to use it in connection with the residuum alone. This is our construction, and we think that we are aided by the eases that have been cited from Connecticut and Virginia.

In the ease of Turner v. Balfour, 62 Conn. Rep., 89, there was a specific devise to the devisee of the real estate known as the Geer house to a grandson, Robert Balfour. Item 10, following, provided that—

“After the payment of my said debts and funeral expenses and the preceding legacies and devises, I give, devise and bequeath half the rest and residue of my estate, of whatever kind and wherever situate, to my son David Balfour, to have and to hold the same during his life, and at his death his share goes to my grandson, Robert Balfour, to him and his heirs forever. The other half of said rest and residue of my estate I give1, devise and bequeath to my son Thomas Balfour, to him and his heirs forever. ’ ’

“Item 11. In case my said grandson, Robert Balfour, dies leaving no issue, I give, devise and bequeath his share, above indicated, to my six children, share and share alike.”

Now in that ease, the court has held that it refers only to the residuum, and does not relate back so as to include Robert Balfour’s prior specific devise. The judge in deciding this case lays down, as one of the rules of construction, that when in the contents of a will a word has been used in a particular manner as is found to have been used by the testator, it is to have the same meaning when used in another part. To use the language of the judge, I will give a quotation as follows:

“It is a familiar rule of construction that when a word is used in one part of a will with a certain meaning, it is to have the same meaning in another part of the will unless the context shows that it must have a different one. We are led then to believe that when the testator used the word''share’ in the eleventh paragraph of his will he intended precisely the same thing that he had indicated by that word in the tenth paragraph, that is, an undivided half of the rest and residue of his estate, and that he did not intend the share mentioned in the eleventh paragraph to include the devise to Robert in the ninth paragraph of the will. The meaning of the word ‘share,’ the rule of construction, and the words of the will all concur to bring us to the same conclusion. ’ ’

Now in the will of James W. Hays, he had taken the residue and created a “hotch poteh,” which he had given to his sons, or what would be left after his debts were paid. The word “share” immediately following in “Item 3” we think, both on principle and authority, that the rule should apply that he used the word in a similar sense as in “Item 2” of the will. Ordinarily the word “share” applies to personal property.

It is one of the rules of construction, that when an estate has been devised clearly and explicitly by the devisor, then before that estate can be cut down, the clause cutting it down must be as clear and unambiguous as the clause making the devise. There is some ambiguity in “Item 3” of this will. There must be clear and unambiguous terms to cut down the interest conveyed by the testator; that hasn’t been done in this ease, and we think that is one of the rules of construction that could b.e applied in the case here.

In the ease of Barksdale v. White, 26 Am. Rep., p. 344, in his opinion Judge Rome quotes this rule of construction, namely:

‘ ‘ The testator having disposed of a matter in á prior item of the will and not referring to it again in subsequent items of the will, he is presumed to have dismissed it from his mind and will not be construed to have resumed the former unless his expression to that effect be clear and unequivocal. ’ ’

Sanderson & Post, for plaintiff in error.

Dougherty & Moore and Eylar & Douglas, for defendant in error.

By “Item 1” of the will the testator had devised the home farm to his two children, and the subject was never again taken up either by “Item 2 or 3” of the will. This rule'of construction applies here, that the testator having devised the home farm •and not again referring to it, had intended to dispose of a vested interest in the property, and hence it is not affected by “Item 3” of this will.

We think that the court of common pleas in giving a vested interest to the defendant, Frank M. ITays, did not err, and the judgment of the court will be affirmed without penalty, and the entry may be so made.


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    COMMISSIONS FOR SECURING PURCHASER.
    [Circuit Court of Lucas County.]
    Archibald M. Bowman v. Louis E. Hartman, Frederick H. Hartman and Frank Sparks, Partners Doing Business Under the Name of Hartman Brothers & Sparks.
    Decided, March 28, 1905.

      Contract — Commission to be Paid for Finding a Purchaser — Vendor Retains Right to Conduct Negotiations — Negotiations Suspended —Afterward Part of Property Sold to Same Party — Commission Payable, When — Agency—Evidence.
    1. While evidence as to efforts made by an agent to carry through negotiations for the sale of land is competent in a suit by the agent to recover a commission, yet the refusal of the trial court to admit such evidence does not constitute reversible error, where it appears that the only duty of the agent under his contract with the vendor was to produce a purchaser, and the fact that the purchaser was introduced by the agent is not in dispute.
    2. Where, after the introduction of the purchaser, negotiations are carried on between the vendor and the purchaser which finally result in a sale of a.large part of the property, the agent is entitled to a commission on the part sold; and the fact that the negotiations . were dropped without notice to the agent, and after a considerable interval were renewed, would not affect his rights in the premises.
    Haynes, J.; Hull, J., and Parker, J., concur.
    This case comes before us upon petition in error. Some clays since we went through this record and read it very carefully, examined the arguments of counsel and authorities and came to the conclusion which I will now announce.
   It appears from the pleadings and evidence in the case, that in May, 1903, the defendants in error were the owners of certain property situate in Wood county, and perhaps also in Sandusky county, used for the production of oil on which were located in the neighborhood of one hundred oil wells. The plaintiff in error was- at that time employed in this city about the offices connected with the Buckeye Pipe Line Company; was familiar with oil matters and oil men to a large extent, and at or about this date he had some conversation with the defendants in regard to the furnishing to them of a purchaser for their oil property and that conversation resulted in an agreement whereby Bowman was to furnish a purchaser for the oil property and the defendants agreed to pay Bowman therefor a commission of three per cent, upon the amount for which the property should be sold. Subsequently the property was sold— but not all of it — there being .a certain number of wells omitted from the sale. By the terms of the understanding between the parties at the time this agreement was made, the plaintiff was only to produce a .purchaser; the property was to be shown by the defendants, and they were to make the contract of sale. No price was named to Bowman for which the property was to be sold no statement made with regard to that; he had nothing to do but to produce a purchaser and introduce him to the defendants, who were to carry forward their own negotiations.

The case came on for trial in the court of common pleas, was heard upon the evidence of the plaintiff, and at the conclusion of plaintiff’s testimony the court directed a verdict for the defendants, and this is the error that is complained of, mainly, it being claimed that the evidence was of such a nature that the case should have gone to the jury. It was claimed in the arguments before us that there had been certain negotiations carried on about May and soon after that time, for several days, and that afterwards the trade — as was claimed on behalf of defendants — was declared “off” or ended. On the other hand it was stated that there was a cessation of negotiations, which cessation continued perhaps until September, when the matter was resumed and the sale was concluded. There was testimony also tending to show that during this negotiation in May, Hartman and the purchaser, Ulsh, came to Mr. Bowman and said that they had nearly agreed upon a price for the sale of the property, the offer on one side being perhaps $111,000 or $112,000, and on the other side perhaps $107,000, there being $4,000 or $5,000 between the partios and they said that his commissions would amount to a considerable sum of money and that stood in the way of a consummation of the sale and they asked him to make a reduction and he agreed upon an amount of reduction of his commission if the sale was carried through of some $2,500.

On the trial of the case in the court below the defendant offered certain testimony which the court refused to allow to go to the jury. There were quite a number of questions which were asked in regard to certain things which were done by Mr. Bowman in the way of procuring charts of this, land, marking the property and matter of that kind — as to what he did in the way of giving information to Mr. Ulsh in regard to the property. Now, in regard to all of these matters — and I speak of them as a whole — we see no reason why they might not properly be admitted; indeed, we think if we were hearing the case we should have allowed the testimony to go to the jury. But, at the same time, the 'contract as alleged by the plaintiff stands admitted by these defendants. It was not necessary to prove the contract, and the question in dispute is whether or not the contract has been performed and whether the plaintiff has done so much that he is entitled to recover under it. We think these questions were not material to the issue. They might give a little larger view to the court and jury as to the position of the parties in the case, but after all, if the plaintiff recovers, it will not'be upon a statement of those facts but upon the fact that he had made a contract which was definite in its terms and capable of being understood, so that as to that evidence and whatever other points there are of evidence which were refused — or even admitted — we think, upon a careful survey of the record, there was no reversible error in the action of the court, although, if the court had permitted it to come in, we think it would have been very proper.

Now, as I have said, the court, at the conclusion of the plaintiff’s testimony, directed a verdict for the defendants. In the statement which was made by the court in the nature of a charge to the jury, giving its reasons -for so doing, it appears that the principal ground at least upon which it based its action was, that the contract was a contract for the sale of the whole of the property, or the production of a purchaser who would buy the whole of the property, and that inasmuch as some sixteen or seventeen wells had been left out of the final conclusion of the bargain and not included in the sale, that therefore the plaintiff had not performed the contract — that the contract had not been performed and the plaintiff was not in a position to recover. Now, as I have stated, the testimony shows that there was a cessation of these negotiations, but there was testimony offered on the part of the plaintiff that it was simply a cessation; I think the plaintiff inquired of him and was told by the purchaser that it was a cessation and that it was to be resumed again — at any rate, it was resumed and was carried out in the manner stated.

Now it should be remembered in this case that the contract was that plaintiff was simply to introduce a purchaser. The plaintiff was not expected to carry forward any of the negotiations: that was left to the parties themselves, they prefer.ing to do that. They fixed their own price; they fixed the amount of property that they would sell him in the contract; the general agreement was that plaintiff should produce a person who would negotiate for the purchase and he did produce such a person and the negotiations were entered into and carried on for a length of time and he finally revised the amount of his commission in case it was carried out, but the 'Cessation occurred and then the negotiations were resumed.

Now we think there is evidence to show that this contract was never dropped; that these negotiations were never terminated; that the plaintiff was never notified in any manner or form that the trade was off or the negotiations ended; we think it still remained, and although the negotiations were not perfected in a day, nor even in a month, still we think there was evidence tending _to show that these negotiations were still pending and were resumed and carried on in pursuance of the original negotiations which had been had, and that the plaintiff was instrumental in introducing this purchaser to these parties and that the trade was consummated in pursuance of and as a result of that introduction.

A further point was made in the court below that there had not been a sale of the whole property; that there had been a portion of the property left out in the final sale, and there was a citation of authorities. The case has been argued before us, and counsel for the plaintiff in error has furnished us a brief with a very full citation of authorities and a great many of them in regard to this very question, and we think he shows that the law is well established that, where the parties carry on the negotiations themselves and make modifications in the contract, but still make a sale in pursuance of the original introduction of the parties and resulting from it, that the party is entitled to recover his commissions according to the amount of property that is sold.

Entertaining those views, and upon this statement and upon these authorities, we are of the opinion that the court of common pleas erred in directing a verdict by the jury and that the case should have been submitted to the jury upon the evidence in the ease and the law as contained in the charge of the court.

' The question of the amount of damages to be recovered is not before us, and there is nothing here that we need to discuss; that is a matter which may arise during the trial of the ease, to be decided by the court. The judgment of the court of common pleas will therefore be reversed, the verdict set aside and the case will be remanded' to the court for a new trial and other proceedings according to law.

Doyle, Lewis & Schaufelberger, for plaintiff in error.

Mr. Webster and Mr. O. Farrell, for defendant in error.


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    LOST OR. SPOLIATED WILLS.
    [Circuit Court of Hamilton County.]
    Gibson v. Gibson.

    Decided, January 16, 1904.

      Wills■ — Burden of Proof — Where Lost, Spoliated or Destroyed — Evidence, Circumstantial and Direct — Presumption.
    1. The burden is on the proponents to satisfy the court that a “lost” will was in existence and unrevoked at the time of the death of the testator.
    2. The fact of the existence of the will unrevoked after the death of the testator can be established by presumption and circumstantial evidence as well as by direct evidence.
    3. The word “lost,” when used with reference to an alleged last will •and testament in a probate proceeding, has some of the significance of “spoliated” or “destroyed.”
    .Tüit.k-r, J.; Swing; J., and Giefen, J., concur.
    Error to Common Pleas Court of Hamilton County.

       Affirming 1 N. P.—N. S., 552.
      *Affirmed by Supreme Court without report, June 13, 1905.

   There is a failure of sufficient proof of fact and a failure of sufficient balance of presumptions to satisfy the court that the alleged will of decedent existed unrevoked at the time of his death and was lost, spoliated or destroyed subsequent to his-death.

True, a thing is lost when “it has been duly searched f-or and can not be found. ” It is then presently lost, and lost in relation to those who are searching for it. But the word “lost” here must be given some of the signification of “spoliated” or “destroyed. ’ ’

Where the time when a thing is lost bears a relation to the time of another fact, that is, the death, the word “lost” must be construed in relation to the thing itself, and must mean when the paper becomes substantially or for practical purposes nonexistent. It will not do to establish the time of the loss in relation to the death by the search, and say that if vain search had been made on November 7, the will would have been lost before the death and because vain search was made on November 9, the same was lost after the death.

Lord St. Leonard’s case, L. R., 1 Probate Div., 232, is the most apt and powerful authority - counsel for proponents can cite, but its effect is diminished 'by the statutes, Sections 5944 and 5947, Revised Statutes. It will not be contended that if it clearly appeared that the paper had been “lost, spoliated or destroyed” prior to the death without testator’s knowledge or even against his will, it could be probated in this proceeding under these statutes.

The time when the alleged will became “lost” in relation to the death is here the cardinal issue of fact, before or after, and the burden is on proponents to “satisfy” the court.

The fact of the paper’s existence subsequent to the death can, like any other fact, be established either by presumption or circumstantial evidence, as well as by direct evidence.

Evidence of decedent’s unchanged intention, or rather lack of evidence of a changed intention, and of his physical disability, is circumstantial and has some probative force, but very little where the issue is “existence of the paper subsequent to the death” irrespective of intention.

Giving this circumstantial evidence weight enough to rebut the presumption of revocation, the question of the time when the paper became lost persists.

The presumption of continued existence grows weaker the longer the time elapsed since the paper was seen on November 1. The presumption is stronger that the paper became “lost” on November 7 than on November 9,

Lawrence Maxwell and Charles P. Brown, for the proponents.

Thomas B. Paxton and Thomas B. Paxton, Jr., contra.

The balance is very delicate, but slightly against the probate of this alleged will. Proponents can not therefore prevail, since the burden is upon them to “satisfy” the’ court.

Judgment affirmed.


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    UNAUTHORIZED CONFESSION OF JUDGMENT BY MUNICIPALITY.
    [Circuit Court of Franklin County.]
    John M. Walcutt v. The City of Columbus.

    Decided, February 20, 1905.

      Municipal Corporations — Approval of Mayor — Necessary to Resolution Authorising Confession of Judgment — Contracts and Vested Rights Under — Section 1545-91.
    1. A resolution of council, recommending that a compromise be arranged for the settlement for a definite sum of a claim against the city, and authorizing the director of law to confess judgment for that sum if 'the offer of compromise is accepted, falls under the provisions of Section 1545-91, and requires the approval of the mayor.
    2. Where the claim antedates this section, and the city asserts that there is nothing due, and the compromise agreement recites that one consideration therefor on the part of the city was to escape further costs, the plaintiff has no such vested right under his contract as forbids the application of a subsequent act.
    Wallers, J.; Dustin, J., and Sullivan, J., concur.
    Error to the Court of Common Pleas of Franklin County, Ohio.

       Affirming Walcutt v. Columbus, 1 N. P.—N. S., 225, which see fer the facts of the case,

   The resolutions passed by the city council, April 13, 1903, and April 27, 1903, were of. such character that they fall within the provisions of Section 1545-91, of the Revised Statutes, where it is provided that a resolution “involving the expenditure of money” or “creating a right” “shall before it takes effect be presented duly certified by the clerk to the mayor of the city for approval. ’ ’

E. P. Evans, G. H. Stewart, F. A. Davis and Cyrus Hiding, for plaintiff in error.

James M. Butler, for defendant in error.

These resolutions were not approved by the mayor, and, therefore, never took effect.

The director of law was not bound by any direction to him contained in those resolutions, nor was the court below. It became and was the duty of the director of law, when the motion for judgment, together with the resolutions, were presented to the court, to notify it of the invalidity of such acts upon which the request for judgment was predicated.

Where the contract, out of which the claim arose, was entered into prior to the passage of the act requiring the mayor’s approval', and a dispute arises as to the amount due, the defendant asserting that nothing is due, and- where as part consideration for the -agreement -of compromise it was inserted therein, “that as the ease had already cost the city of Columbus several thousand dollars in costs and attorney’s fees, and if not settled is- likely to cost many thousands of dollars more, ’ ’ the plaintiff has no such vested right under his contract, which forbids the application of the act subsequently passed requiring the mayor’s approval.


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    LIABILITY TO ONE INJURED IN UNLOADING A FREIGHT CAR.
    [Circuit Court of Lucas County.]
    The Wheeling & Lake Erie Railroad Company v. Lewis Rupp.
    Decided February 11, 1905.

      Negligence — Injury to a Freight Handler — Not in the Fmploy of the Railroad Company Whose Car He was Unloading — Privity of Contract — Safe Place to WorTc — Invitation to Unload the Car — Master and Servant.

    R was employed at a factory in unloading a freight car, which had1 been left in position at the factory by the railroad company. The spur-track running to the factory was owned and controlled by the railroad company, but was on land belonging to the factory. The car stood on a grade, and, while being unloaded, started down the grade and was wrecked. R attempted to save himself by jumping off, and was injured. Held: That the railroad company, rather than the company operating the factory and by whom he was employed, was liable to R for the injury sustained.
    Haynes, J.; Hull, J., and Parker, J., concur.
    In this case a petition in error was filed for the purpose of reversing the judgment of the court of common pleas in an action wherein Henry Rupp was plaintiff and the receivers of the railroad company were defendants, and which resulted in a verdict and judgment against the receivers of the railroad company. It was a personal injury case.
   It appears that the Toledo Tinware Manufacturing Company, a corporation, was carrying on business on Buckeye street in this city, near the main line of the Wheeling & Lake Erie Railroad track. The railroad company had built a track out to the building which was occupied by the tinware company; they retained the title to the track and the control of it; the track, however, was built upon the land of the tinware company; the railroad company received freight from the tinware company and carried freight to it — the receiving and carrying freight was done by setting ears upon this side-track at a door of the building of the tinware company, from whence the freight was loaded or unloaded. The arrangement was that the tinware' company should load and unload the freight. The railroad company set the car upon the track, securing it there. The track itself was somewhat declined from the búilding towards the main track, quite a little descent, so much so that the car would not stand upon the track without being secured by a brake or otherwise. At the time of the accident, the railroad company, the receivers, had set in upon this side-track a car loaded with tin for the tinware company. It was a box car, and was secured by setting the brakes upon the ear. One of the witnesses thought perhaps they had blocked it, others not; the weight of the testimony seems that they had not. Just how long the car had been in there is not quite definite, some say the day before and some the same day; probably it was set there the day the accident occurred-.

The manager of the tinware company opened the door and proceeded to unload the freight, and while doing so the ear started upon the incline — started to go down. The plaintiff, who was an employe of the tinware company was then in the ear. When the car got down to the main track it jumped the track and perhaps turned over. The plaintiff jumped from the car and landed upon -a pile of stone and his foot was injured. The ligaments were badly sprained, but no bones broken. Thereupon he brought this suit. It went to the United States Circuit Court, thence to the United States Circuit Court of Appeals, and finally got back here again, and was tried in the court of common pleas of this county to a jury, the jury returned a verdict for the plaintiff on which judgment was entered; and it is to reverse that judgment that the case is in this court.

The controversy in this case, the contention as between counsel for the plaintiff in error and defendant in error, relates very largely to the theory upon which the ease was tried in the common pleas court; and h-as resulted in a very learned and able discussion of the legal questions involved in the case. It is claimed on behalf of the plaintiff in error that the receivers are not liable; that if any person is liable at all, it is the tinware company on a liability to its employe to furnish him a safe place to work; that if there was any defect in the manner in which the ear was set, or if it was insecure in any way, the liability resulting from the negligence in that" respect is upon the tinware company, the master, for failing to have examined, seen and known that the place that the men were working was secure. It is claimed further that the position of these parties, the receiver and1 the tinware company, toward each other — the relations of these parties would be substantially that of landlord and tenant; that is to say, the railway company owning the cars, the tinware company would sustain the relation of a person who was permitted to enter the car 'and do some work for itself; and that if it invited its men to work in the car, the tinware company alone would be responsible and not the railway: company, citing the ease of Burdick v. Cheadle, 26 Ohio St., 393, and other cases along that line. In other words, it is claimed there was no privity of contract between the receivers of the railroad company and the plaintiff in this case, and counsel have made a very able argument upon those questions. There were some minor questions in the case that have been touched upon in the argument, but it is not necessary to refer to them here.

Now we are called upon to decide as to the character of this employment and the relations between these parties. It seems to us from a very careful consideration of this case that the situation is substantially this, and not otherwise. The railway company was carrying its freight and placing its car alongside of that building — it was placing its car there to be unloaded. If it had taken its freight to the freight depot, it might have unloaded it itself, probably would; but by custom, or by arrangement between these parties, the consignee, the tinware company, was to unload this car, and in doing so it was to enter upon the ear and take out the freight. The expectation of the company was and must have been that the tinware company would, by its servants and agents, perform this work — largely, of course, by its servants; and we do not see how the conclusion can be resisted that these men in the employ of the tinware company went into this ear to remove and did remove this freight, under the invitation and by the consent of the railway company that they should do so. They were not trespassers there — nothing of that kind; nor was the tinware company, as we conceive it, in any way tenants of that car; they went in there to perform their work, for the benefit, of cc'jirse, of themselves and for the benefit of the railway company, because, as a matter of course, the railway company wanted the freight discharged and the use of the car, and wanted their pay for the transportation. So that, in our judgment, the eases that have been cited by learned counsel, that have been so ably argued, do not apply to this case. We think the case is simply and properly one where the car was placed there, and the parties in the employ of the tinware company went in to perform their work upon the invitation of the railway company. And without discussing the eases that may bear upon this question, we think the law of the land is that the railway company, under those circumstances, if it fail in the performance of any duty towards these men, is liable; that if it failed to place that car at this point and secure it in a proper manner, so that it became insecure and passed down the line of the road, then that it was the fault of the company, for which it would or might be liable to the employes of the tinware company, who worked in this ear, for injuries arising from such negligence.

There was some question as to the manner in which the car was placed at this- point, a question as to whether it was properly secured. There seems to be no evidence here that the brakes were out of order in any way. The men testified that they took it down and set the brakes and left the car. It did not appear that the brakes had been changed or tampered with in any way before or at the time the men went in there to work discharging the freight. But at some time -during the performance of the work the ear was noticed to start; persons outside saw it start and ran towards it; but the car had so much weight and so much headway that it could not be stopped; and it would seem to be a fair and just conclusion in the ease, and one at which the jury might property arrive, that the brakes had in some manner become loosened, failed to hold, had not been properly set and failed to perform their duty; and that the car went down the track, without any negligence on the part of the tinware company or the man in the car.

Seiders & Monnette, for plaintiff in error.

O. S. Brumbach, for defendant in error.

Now with that state of facts, that theory of the law, we hold that the charge of the court was correct and the verdict of the jury might be sustained by the evidence. There'is no contention on the part of counsel for plaintiff in error, but what on the theory of the plaintiff below and the theory of the court of common pleas, that the charge was full and complete, and the case seems to have been well presented to the jury by the court.

It is suggested that the verdict is too large. But it appears from the testimony of physicians that was offered by the defendant below that he experienced that sprain. It may be called an injury that at any rate was serious; one of the ligaments of the ankle or foot seemed to have been very badly sprained, and while there is some improvement, there is practically no hope for complete recovery; the man walks with the aid of a cane. The physicians think he might some time be able to walk without the aid of a cane, but will never be able to do any heavy work; that he will always be troubled with that foot, it will be an infirmity; and under all the circumstances of the case, we are inclined to let the verdict of the jury stand as it is. The judgment of the court of common pleas will be affirmed without penalty.


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    A MANDATORY IMPROVEMENT ACT RELATING TO DITCHES.
    [Circuit Court of Madison County.]
    Eugenia Crawford v. B. A. Taylor, Auditor, et al.
    Decided, March 25, 1905.

      Constitutional Law — One Section of the Ditch Cleaning Act — Mandatory, Administrative and Unconstitutional — Equity Powers — As Opposed to the Judgment of the Proper Authorities.

    1. The equity powers of a court should he slow to move, where the ■issue relates to the judgment exercised by the proper authorities with reference to the amount of work to be done and assessment toi be levied for the cleaning out and keeping in repair of a public idStch or drain.
    S. Section 3 of the act found in 95 O. L., at page 155, is a mandatory improvement law, which does not submit the question of the public necessity of the .proposed improvement to any authorized public board or officer, and is therefore unconstitutional, because administrative rather than legislative.
    Wilson, J.; Sullivan, J., and Dustin, J., concur.
    Heard on appeal.
   This is an action brought to enjoin the assessment made by the auditor under favor of Section 3 of the act found in 95 O. L., 155, for cleaning out what is known as the Pilfer county ditch, and comes into this court on appeal.

If the law under which it is sought to lay the assessment should be held constitutional, we would not grant the relief prayed for, upon the facts disclosed in the evidence. The extent of the improvement and the consequent amount of the assessment must, in the nature of things, be left largely to the judgment of the authorities who are upon the ground and act with better information than a court can obtain from cold type and oral evidence. The equity powers of the court should be slow to move under such circumstances.

But we have not been able to. reconcile our views of the law with the constitutionality of the statute under which it is sought to make the improvement. It is obvious, we think, that the provisions of Section 3 of the statute under review do not refer the question- of the necessity for cleaning out. to any officer or board of the county. It is said by counsel in argument that “the necessity” is implied as a -prerequisite to invoking the operation of the law; the language being “Provided, however, that when a ditch needs to be cleaned out,” etc. But this language is the same as that of Section 2 of the act wherein it is provided that the- commissioners shall determine the necessity before the improvement is -ordered, and nothing was left to be implied in that section.

Again it is argued the county surveyor is authorized- to determine the necessity, because he is ordered “to examine the ditch.” His duties are similarly expressed in Section 4 of the act when he is proceeding in pursuance to the provisions of Section 2 to carry out the order of the commissioners after they have determined the necessity. There is nothing in the language of Section 3 to inform him that his authority is different or greater than it is under the other sections, and he would look upon the necessity as predetermined and act accordingly.

Nor can it be inferred that the auditor has power to determine the necessity for the improvement under the authority to pass upon the surveyor’s report of the apportionment of the assessment and make such changes therein as he may deem right and proper.

The apportionment of the assessment and not the necessity for the improvement is the matter he considers. Here again it is assumed that “the necessity” is predetermined. The authority to make changes and approve does not imply the power to annul the assessment. When an -officer’s power is purely statutory the courts will be slow to raise it by implication.

It would be a forced construction to say that the power to determine the necessity is to be inferred from the language i-n Section 3 when it is clearly expressed as otherwise bestowed in the sections- immediately precedent and following in the same act.

In our opinion the necessity for cleaning out is determined-by the Legislature to be whenever any resident land -owner of any tract of land which, was assessed for the construction may make a sworn statement to the county auditor in writing setting forth the necessity. It is a mandatory improvement act which does not submit the question of the public necessity to any authorized public board or officer. Such an act is administrative, not legislative, in its character, and unconstitutional because not within the province of the Legislature. It is apparent also that the remedy provided in Section 3 is materially different from that provided to the same end in Sections 2 and 4 of the act. Under the last named sections the applicant for relief is required to give bond to secure the costs and to have the board of county commissioners find the improvement necessary. In the event the board does not so find, he is adjudged to pay the costs. No such requirements are made of the applicant under Section 3. The distinction is not made to depend upon residence as a reason for classification. A resident land owner may apply under either Section. A non-resident, may not apply under Section 3, but whether the resident land owner applies under the one or the other must depend largely upon his scrupulosity. If he is willing to make oath that it is necessary and invoke the power to assess his neighbors upon his own information and judgment, he may have the ditch cleaned out under Section 3. If he. has scruples about maldng the sworn statement and desires to have the county commissioners investigate and pass upon the question affecting himself and others he must make application under Section 2 •and as a penalty for his modesty-secure the costs. This would appear to be unequal legislation, an unjust discrimination against the fair-minded citizen and violative of the Bill of Rights.

Murray, for plaintiff.

T. J. Duncan, for defendant.

So much of the statute as is included in Section 3 of the act is held to be unconstitutional and void, and the proceeding to levy an assessment under its provisions will be enjoined. A decree may be entered accordingly, the plaintiff to recover her costs.


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    QUESTIONS IN APPROPRIATION PROCEEDINGS.
    [Circuit Court of Wood County.]
    Webb C. Hayes et al, Trustees, v. Toledo Railway & Terminal Co.

    Decided, April, 1903.

      Railway — Designation of Route of — In Articles of Incorporation — Eminent Domain — Damages to Property Owner — From Increased Danger of Fire — Charge of Court.

    1. The corporation laws of Ohio require that the names of counties be set forth through which a proposed railway is to. be extended, but do not require that 'the townships be named; and hence where townships are named it is mere surplusage, and the company is not thereby prevented from extending the road into other townships located in the ■ counties which are named in the articles.
    2. Danger from fire arising from the operation of the road, to buildings, fences, timber, etc., situated on the remaining portion of a tract of land appropriated by a railroad company, is to the extent the property is thereby depreciated a proper element of damages to be considered by the jury in awarding compensation, and a charge which eliminates this element from the consideration of the jury is improper, notwithstanding the liability of the company for such losses.
    3. The value of existing crops, or of crops which may be raised upon the land in the future, or of other property which may be placed thereon, can not be considered by the jury in arriving at its award.
    Parker, J., (orally); Haynes, J., concurs; Hull,'J., not sitting.
    This case is brought to obtain a reversal of a judgment of the probate court in Wood county in a proceeding for the appropriation of private property for the railway company, and also for a reversal of a judgment of the court of common pleas affirming the aforesaid judgment of the probate court. The proceeding in the probate court was by the railway company as plaintiff against a great many defendants, including these plaintiffs in error, for the appropriation of various tracts of land owned by the different defendants respectively. The part of the proceeding in which the plaintiffs in error were and are interested is that with respect to the parcel described in the petition as “parcel No. 8.” The preliminary hearing was had and the case afterwards went to trial upon an inquiry to determine the amount of compensation and damages to be awarded, which resulted in a verdict for plaintiffs in error for $250 compensation for the part taken, and $100 damages to the remainder of the tract.

       Affirmed by the Supreme Court without report, 1 O. L. R., 866 (70 Ohio State, 425).

   It is contended on behalf of the plaintiffs in error that there is error in this judgment and the proceedings of the probate court in this: That the petition (and perhaps the bill of exceptions which was taken upon the preliminary hearing) discloses that the plaintiff in that court, the railway company, was not authorized by law to proceed to appropriate the land in question, which is located in Lake township, Wood county, Ohio. That in this proceeding they were exceeding the authority vested in them by the articles of incorporation issued to them by the state; that their act, in other words, was ultra vires; and this contention is based upon the fact that the articles of incorporation set forth that the termini and route of the railway which this company is authorized to construct and operate are as follows:

‘1 The northerly terminus, being a point at or near where La Piere street, in the city of Toledo, Lucas county, Ohio, intersects the Maumee river, and the southerly terminus, being a point at or near where the northerly boundary line of the town of Maumee, in said county, intersects said Maumee river; said railway extending from its northerly terminus in a westerly and southerly direction to the northerly boundary line of the city of Toledo, and thence in a westerly and southerly direction through Washington and Adams townships and the town of Maumee in said Lucas county, Ohio, to its southerly terminus; thence in an easterly direction across the Maumee river, and thence northerly through the townships of Perrysburg and Ross, in Wood county, Ohio, and through Oregon township and the city of Toledo, in said Lucas county, Ohio; thence in a westerly direction across said Maumee river to the northerly terminus. ’ ’

It will be observed that the course marked out for this railway in Wood county is through the townships of Perrysburg and Ross only, that is to say, no other townships are mentioned, whereas the lands in question of the plaintiff in 'error are in Lake township in said county.

The statute does not require that the township through which a railway is to be extended shall be set forth in the articles of incorporation, but it does require that the counties through which the railway is to be extended shall be mentioned. Counsel for plaintiffs in error urge that since the railway company has seen fit to have these articles of incorporation so framed as to describe the townships through which it is to pass, it is thereby limited and circumscribed with respect to the county in which such townships are situated; that is.to say, it may not extend its railway to any point in such county outside of the townships mentioned; that the rule “expressio unius esi exclusio alterius” should prevail and be applied. But we are of the opinion that this rule has no application to a case of this character, and that the mention of the townships being unnecessary, not being re-quired by statute, and not serving, as we can see, any good or useful or proper purpose, should be treated as surplusage merely —wholly immaterial and harmless.

We come now to the next proposition urged against this judgment by counsel for plaintiffs in error, and this goes directly to the merits of the controversy. It is urged that the court erred in its charge to the jury with respect to the rules to be applied in the allowance of damages. The charge of the court is very brief, and upon the question in controversy there is but a single paragraph. I need not read the whole charge, but will read this paragraph:

“The jury are instructed that the law of Ohio provides that a railroad company must pay to the person whose property is destroyed by fire caused by the operation of a railroad, the damage thereby- sustained, and in determining whether or not the remainder of the lands are rendered less valuable by the construction and operation of the proposed railroad, the jury have no right to include, as an element, the value of any property liable to be destroyed by fire by the operation of the railroad. ’ ’

There is nothing else in the charge referring to that subject. The general rule governing what may be taken into consideration with respect to possible fires communicated from locomotives or otherwise in the operation of a railroad — what may be taken into consideration as a diminution of the value of the remaining property — is stated in 2 Lewis, Em. Dom. (4th Ed.), Section 497, as follows:

“When a part of a tract is taken for railroad purposes, danger from fire to buildings, fences, timber or crops upon the remainder, in so far as it depreciates the value of the property, may properly be considered. It is immaterial that the railroad company is made absolutely liable for all losses by fire which originate from the operation of the road, whether they result from negligence or otherwise.”

In support of that doctrine, various authorities are cited to us, and counsel for defendant in error concede that the rule thus stated is the proper and true rule to be applied in Ohio; but at the same time they insist that there is nothing in these instructions that are obnoxious to that rule; that what is intended by the rule stated by the trial judge, is not that the jury may not consider the diminution in value, of the land, or of the improvements that constitute a part of the land, but that they are not to take into consideration crops upon the land or that may be raised upon the land, or other property that may be put upon the land, that may be destroyed by fire, in such manner as to add the value or a part of the value of such property to the amount to be returned as damages.

If the charge had clearly stated the proposition which they say it was intended to state, we think no fault could be found with it; but we are of the opinion that it is not clearly nor fairly open to that construction; that under all the circumstances of the case, it probably did not receive that construction at the hands of a jury. The court starts out by calling the attention of the jury to the law of Ohio which provides that a railroad company must pay to a person whose property is destroyed by fire caused by the operation of a railroad the damages thereby sustained; then follows up this instruction with the remainder of the paragraph quoted, which it seems to us must have been understood by the jury as intended to mean and as meaning that because this remedy was given therefor they were not to take into consideration at all the damage resulting; that is, the diminution of the value of the land in consequence of the danger of damages resulting to the premises by fire communicated from the railroad. I will read again that portion of his charge:

Birchard A. Hayes, for plaintiffs in error.

J. O. Troup, F. A. Baldwin and King & Tracy, for defendant in error.

* * * “and in determining whether or not the remainder of the lands are rendered less valuable by the construction and operation of the proposed railroad, the jury have no right to include as an element, the value of any property liable to be destroyed by fire by the operation of the railroad. ’ ’

To be sure the court does not say that they are not to include as an element the diminution in value of the remainder in consequence of the liability to destruction of the property upon the premises, but it seems to us that it must have been so understood by the jury; that if it does not state that proposition distinctly it is fairly open to that construction, and is so misleading under all the circumstances that it should be held to be erroneous. The jury are told that they are not to include as an element any property liable to be destroyed by fire. That is very broad. That would include not only crops, but buildings, permanent structures upon the premises; those upon the premises at the time or that might afterward be put upon the premises by the proprietor for their proper improvement. If the land was suitable, for instance, to be used as town lots, to be improved as town property, it would amount to saying that the jury have no right to include as an element the reduced value of the buildings and structures then upon the premises, or that may be put upon the premises due to their liability to destruction by fire by the operation of a railroad.

Entertaining this view of what the language here means or what it must have been understood by the jury to mean, we hold that the giving of this charge was error, and that it was material and prejudicial error, and on this ground the judgment of the probate court, and the judgment of affirmance of the court of common pleas, will be reversed, and the cause will be remanded for retrial.