text:
    ACTION AGAINST GUARANTOR. OF COMPLETION OF CONTRACT.
    Circuit Court of Cuyahoga County.
    The Western Strawboard Co. v. The Variety Iron Works Co.

    Decided, May 31, 1910.
    ■ Statute of Limitations — Guaranty—Corporations'—Ultra Vires Contract.

    1. In an action against a guarantor of a contract for the construction of a mill or plant which provides that in the event the contractor fails to complete the plant within a certain time, the plaintiff -may complete it and he repaid its expenditures in that behalf, where the contractor fails and the plaintiff elects to proceed and complete the plant, the statute of limitations begins to run against the guarantor for money so expended from the date of the completion by the plaintiff of the plant and not from the date of the default of the contractor.
    2. A corporate contract, such as one of guaranty, made without legislative sanction, and hence ultra vires, but neither malum in se nor expressly prohibited, is not necessarily illegal, so as to preclude action upon it, and if it is fully performed on the part either of the corporation or of the other contracting party, neither will be permitted to insist that the contract so performed by one party is outside the corporate power of the corporation.

      Henderson, Quail & Siddall, for plaintiff in error.

      Gooh, McGoivan & Foote, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.

       Affirmed without opinion, Variety Iron Works v. Western Strawboard Co., 87 Ohio State, 478.

   The sole question here is upon the sufficiency of the amended petition below, demurrer to which was there sustained because the cause of action was barred by the fifteen year statute of limitation.

The action was brought upon the defendant’s written guaranty to the plaintiff of the full performance by the Central Paper & Fiber Co. of the latter’s agreement with plaintiff’s assignor to construct a certain strawboard mill or plant, which agreement, as amended, stipulated that the fiber company would complete said plant within thirty days from and after September 6, 1890, “and that in the event that it failed so to complete said plant, the plaintiff should have the right to complete the same in accordance with the terms of the said contract and to be repaid by said the Central Paper & Fiber Company the expense- so incurred.

The amended petition alleges further that:

“After the execution and delivery of the contract last above referred to said the Central Paper & Fiber Company failed to complete its said contract with the plaintiff within the time so agreed upon. Thereupon, pursuant to the provisions of said contract and with the consent of the defendant and the said fiber company, the plaintiff undertook the completion of the said plant. ”

i

Also that:

“The plaintiff was necessarily engaged in such performance of the said contract and in securing the completion thereof until after the first day of August, 1891, and some of the obligations incurred by it therein matured and were paid by it after such date.”

This action was commenced July 20, 1906, which, it will be observed, is- more than fifteen years after the date, to-wit, October 16,1890, when the fiber company agreed to complete its work, and when upon the fiber company’s default, the plaintiff entered upon the completion of the work, pursuant to the express terms of the contract. But the commencement of this action was less than fifteen years after the expiration of the period during which the plaintiff was necessarily engaged in finishing the work thus undertaken by it.

The defendant claims that the plaintiff’s- right of action upon the guaranty accrued simultaneously with its right of action against the fiber company, at the moment the latter was in default, upon its contract; that the right which the plaintiff thereafter exercised of completing the work and charging the cost thereof to the fiber company gave rise to no distinct right of action, but simply fixed the amount of the liability already incurrecl by the fiber company, and by its guarantor through its default; and that the rule of damages stipulated in the contract itself is substantially, if not exactly, the same as that which the law would have afforded had the contract been silent upon the subject.

It must be confessed that this construction of the contract and of the rights of the parties is at least plausible. We think, however, that the contract must be viewed as affording to the plaintiff, after it had availed itself of its right thereunder to complete the work and charge the cost thereof to the fiber company, a new and distinct right of action, to-wit, for work, labor and materials furnished at the special instance and request of the fiber company. True it might have sued the fiber company in damages for breach of contract, and the rule of damages would have been the same. But we see no reason to doubt that it had also the right to wait before bringing suit until it had incurred the cost and expense, and thereupon mould the allegations of its petition in such manner as to recover for its expenditures as such instead of as damages for breach of contract.

The defendant’s guaranty extends to the contract generally. If the plaintiff had alternative rights of action against the fiber company under the contract, the same alternative is available against the fiber company’s grantor.

It not frequently happens that to avoid the bar of the statute of limitations the plaintiff makes an election between the alternative remedies in certain cases; for example, where there has been a conversion of personal property plaintiff may waive the tort and sue as upon contract for the value of the goods taken. So, also, a passenger may have either his action in tort for personal injuries received by a carrier’s negligence, or he may, probably if need be in order to avoid the bar of the statute of limitations, sue for breach by the carrier of its contract to use the utmost care to carry him safely. ,

These cases are, of course, not parallel to the one at bar, for the alternative here is not between an action ex contractu and one ex delicto. The action is in any case upon the guaranty of the fiber company’s contract. But there was, we think, an election of remedies as aainst the fiber company, and the cause of action must be deemed to have originated at one time or another, according to the election made. Thus viewing the matter, we hold that the action below was not barred by the statute of limitations, and that so far as this ground of demurrer to the amended petition is concerned, the court below erred in sustaining it.

It is said, however, that the error is not prejudicial because a further ground of demurrer which was disallowed by the court below ought rather to have been upheld, so that the demurrer was properly sustained, even though a wrong reason was assigned. This ground of demurrer is founded upon the contention that the defendant’s guaranty was ultra vires, and therefore void, and a decision to that effect, reported in 62 Fed. Rep., 356, is called 1o cur attention. We can not reconcile the law of Ohio, as declared hy our own Supreme Court with the contention thus made. The petition here alleges that at the time said contract of guaranty was made “practically all of the uncompleted portions of the said the Central Paper & Fiber Company’s contract with the plaintiff required the furnishing and installing of machinery, tools and equipment, and in the manufacture and sale of which the defendant was engaged as a business and which it had contracted with said the Central Paper & Fiber Company to furnish for and install in said plant.”

It appears from this and other averments that the defendant was directly interested in the carrying out of the contract between the plaintiff and the fiber company, so that its contract of guaranty can not be said to be utterly unconnected with its regular business or entirely outside of the scope of its corporate powers. It is of course true that a manufacturing corporation in Ohio has no express authority to enter into contracts of guaranty, but on the other hand, there is nothing in our laws expressly forbidding them so to do. Of itself such a contract is not immoral nor prohibited by law nor contrary to the public welfare. Unlike the federal courts the Supreme Court of this state has latterly given strong indication of its'leaning to the modern doctrine that a corporate contract made without legislative sanction, and hence ultra vires, but neither malum in se nor expressly prohibited, is not necessarily illegal so as to preclude action upon it, and if it be fully performed on the part either of the corporation or of the other contracting party, neither will be permitted to insist that the contract so performed by one party is outside the corporate power ot the company. Hays v. Galion, etc., Co., 29 Ohio St., 330, 340; Larwell v. Savings Fund Co., 40 Ohio St., 274, 285; Ewing v. Bank, 43 Ohio St., 31; Conant v. Wright, 1 Ohio St., 298; Bank of Chillicothe v. Chillicothe, 7 Ohio (part 2), 31.

Neither ground of demurrer to the amended petition below having been well taken, the demurrer should have been overruled, and the judgment of common pleas is accordingly reversed and the cause remanded, with instructions to that court to overrule the demurrer and to proceed further in the cause according to law.


source: Caselaw Access Project

license: Public Domain

text:
    EVIDENCE OF ADMISSION BY RECEIVER. COMPETENT AGAINST ESTATE.
    Circuit Court of Cuyahoga 'County.
    The Abrazonine Company v. The Ohio Ceramic Engineering Company.
    Decided, May 31, 1910.

      Admissions of Counsel — Of Receivers — Authority of Counsel Presumed.

    1. Admissions of counsel in pleadings, motions, affidavits and other papers filed in a cause are admissible in the same cause against their clients, if made within the scope of their authority.
    2. Where a receiver, acting in the course and within the scope of his official duty, makes an admission against the interest of the estate in his custody, it is binding upon the estate and its owner.
    3. The authority of an attorney is to be presumed from his appearance as such in a case, until the contrary affirmatively appears.

      Lawrence, Bussell & Eichelberger, for plaintiff in error.

      Lang, Cassidy <& Copeland, contra.
    I-Ienry, J.; Winch, J., and Marvin, J., concur.
   The parties here stand in the relation opposite to that in which they stood below, There the defendant in error recovered a verdict and judgment for $900.16 on a contract evidenced by the following correspondence:

“April 20, 1906.
“Mr. John Kline,
“Wyckliff, Ohio.
“Dear Sir: Confirming verbal proposition made by you this morning would say that we will furnish you one of our double die power silica presses complete, with one set of double dies for 6 emery wheels and one set of double dies for 3 emery wheels for $750 f. o. b. our factory. In ease you return this press to us, you are to pay us $125, we to pay the return freight on the press. Of course the press is to be returned in good condition without any broken parts.
“In case you should return the press and should take the Ross-Keller 4 mould press which we have at $1,800 we will ask no charge for the use of our press, or if you should take the Boyd 4 mould press which we have for sale at $2,400 and return ours, there would be no charges for the use of ours. In case you should make this change, you are to pay the freight on the Ross-Keller or Boyd presses from point of shipment and we are to pay the return freight on our press. We would also furnish a man free of charge to superintend the setting up of the Ross-Keller press at your plant.
“Yours very truly,
“The Oi-iio Ceramic Engineering Company,
“(Signed) Frank IT. Robinson, President.”
“April 26, 1906.
‘ ‘ The' Abrazonine Co.,
‘ ‘ City.
“Gentlemen: Referring to proposition which-we made Mr. John Kline on April 20th, for one of our power silica presses, we hereby amend said proposition to extend the time to 90 days if necessary, the understanding being that the press, if returned, will be in such condition that we will not have to sacrifice in making a re-sale. At the end of four weeks, if you still desire to keep the press, it is understood that you will pay one-third of the purchase price subject to all the conditions of original proposition to Mr. John Kline as to the return of the machine, etc.; the difference between amount paid and the agreed rental price to be refunded to the Abrazonine Co. at that time.
“Yours very truly,
“The Ohio Ceramic Engineering Company,
“Frank IT. Robinson, President.”
“Cleveland, Ohio, April 26, 1906.
“Ohio Ceramic Engineering Co.,
“City. •
“Gentlemen: Referring to proposition which you made our
Mr. John Kline under date of April 20th and amended today we hereby desire to confirm the verbal acceptance given you by the writer today. Kindly consign the press, together with the seven barrels of our material at your works to us at Wickliffe, Ohio, via Lake Shore & Michigan Southern R. R. It is important that shipment be made at the earliest possible moment and we trust that same will go forward not later than Saturday, Apr. 28.
“Yours very truly,
“The Abrazónine Company,
“F. L. ITurst,
“Pres. & Gen: Mgr.”

The press contemplated by this correspondence was delivered as therein provided. It has neither been paid for nor returned to the defendant in error. But the contention of plaintiff in error is that the parol evidence offered to show what is meant by the “agreed rental price” mentioned in the correspondence, and otherwise to show a different contract than the correspondence itself would indicate, is admissible to explain the transactions’ of the parties and that the construction of the contract as thus evidenced was for the jury. " It suffices to say that we do not endorse this view. The contract seems to us to be perfectly plain on its face and to need no other construction than such as the court gave it in the charge to the jury. Nor do we think that the result could be properly varied by the evidence sought to be offered by the defendant below to show that the plaintiff below extended.the time within which the option to return might be exercised, and that it actually exercised dominion over the press equivalent to a return and acceptance thereof. The evidence was relevant enough, but it amounted to nothing, being hearsay or otherwise inconclusive.

On the question of the admissibility of the receiver’s original answer, and of the affidavit by counsel for defendant below, in support of a motion for continuance, as containing admissions by the receiver of the defendant company as to its corporate capacity, and by its .attorney as to the name and identity of its president, it suffices to say that the following authorities seem to establish the competency of this precise sort of evidence, as of admissions against interest: Fort Wayne Coal & Iron Co. v. Webster, 163 Mass., 134, 137; Bosworth v. Terminal Railroad Co. of St. Louis, 174 U. S., 182, 189; W. Scott & Co. v. Woodward, 88 S. W., 406; Fidelity & Casualty Co., 69 S. W., 915; H. E. W. T. R. Co. v. DeWalt, 70 South Western, 537.

From these it appears not only that admissions of counsel in pleadings, motions, affidavits or other papers filed in the same cause are admissible against their clients if made within the scope of their authority, and are admissible in evidence in the same case, but also that where a receiver acting in the course and within the scope of the official duty makes an admission against the interest of the estate in his custody, it is bindng upon the estate and its owner. The authority of an attorney at least is, we think, to be presumed from his appearance as such in a ease until the contrary affirmatively appears, and when it is the duty of a receiver to defend an action brought against a corporation or natural person, of whose estate -he has been appointed the receiver, he represents the defendant fully for the purpose of the action.

We find no error in the record and the judgment is affirmed.


text:
    INSUFFICIENT GROUND FOR. DISBARMENT.
    Circuit Court of Ashland County.
    In the Matter of the Complaint Against H. L. McCray, an Attorney and Counselor at Law of Ashland County, Ohio.
    Decided, June Term, 1913.

      Attorney and Client — Collection of Fee for Services Subsequently Regarded as Unnecessary Not Moral Turpitude — Disagreement Between Attorney and Client as to Contract Entered Into Between„ them.

    1. The retention by an attorney of a larger portion of the amount recovered than the client believed to be warranted by the contract of employment, does not constitute ground for disbarment, where the client is an aged man and his inconsistent and contradictory testimony as to the terms of the contract indicates that if not an unreliable witness he is at least very forgetful.
    2. The collection from the guardian of an imbecile of a fee of $5,000 for services which resulted in a compromise whereby a large amount of cash and securities were turned over to the guardian, $2,000 of which fee was paid to another attorney for services in the same behalf, is not rendered an act of moral turpitude by the fact that these services were subsequently regarded as unnecessary and a finding to that effect was made in the common pleas court.
    Voorhbbs, J.; Shields, J.. and Powell, J., concur.
   Tbis cause is in this court by appeal from the Court of Common Pleas of Ashland County, Ohio, and is submitted to the court upon the complaint in writing against said H. L. McCray preferred by order of the judges of the court of common pleas of the sixth district of Ohio, wherein, among other things, it is charged, as set out in the first specification under said charge, that said Henry L. McCray was guilty of unprofessional conduct involving moral turpitude in this, to-wit:

On or about the first day of October, 1889, said Henry L. McCray as an attorney and counselor at law was retained and employed by one Ludwig Scfieriff, a resident of Ashland county, Ohio, to prosecute a certain action against the county treasurer of Ashland county for the recovery of $1,456 which a certain tax inquisitor, one E. A. Bowman, claimed was due from said Ludwig Scheriff to said county as back taxes, and which amount was paid.

Said Henry L. McCray as attorney for said Ludwig Scheriff subsequently filed a petition in the court of common pleas of said county praying judgment against the treasurer of Ashland county for the sum of $1,456 and interest from October 5, 1898.

On or about December 6, 1900, a compromise was effected between said Henry L. McCray, attorney for said Scheriff and the county treasurer on the basis of $792.02, whereupon said Henry L. McCray received and receipted to the auditor for said sum of $792.02 December 6, 1900, and signed said receipt, “McCray & McCray, attorney, L. Scheriff”; three or four weeks after McCray & McCray received said $.792.02 from the county treasurer, $150 thereof was turned over to said Scheriff; that said amount is all that said Scheriff received; said IT. L. McCray then and there converting the balance thereof, to-wit, $642.02, to his own use and benefit, and refused thereafter to pay said Scheriff any further part thereof, though often requested so to do.

Said cause was heard in the court of common pleas to the judges of said sixth district upon said complaint and the specifications thereunder, resulting in a finding by said court that said Henry L. McCray has been guilty of misconduct in his office of attorney and counsellor at law involving moral turpitude as set forth in said - specifications. It was therefore ordered and decreed by the court that the said ITenry L. McCray be, and he is removed from his office of attorney and counselor at law in the courts of the state of Ohio, and that the name of the said Henry L. McCray be stricken from the roll of attorneys.

To this finding and judgment of the court the said Henry L. McCray appealed to said circuit court and such proceedings were had in the premises that said cause was duly appealed to said court and the same came on for hearing at the June term, 1913, of the court of appeals of said county, which court is the successor in jurisdiction of said circuit court, to which the cause was appealed as aforesaid, and the same was submitted at said June term upon said complaint and the evidence.

The case was tried in said court on the testimony taken in the court below, and by agreement of the parties the transcript of the testimony, so taken, was submitted to the.court, together with additional oral testimony in behalf of said Henry L. McCray, which transcript and oral testimony were offered by the parties on the trial and were all the evidence in the case.

In support of said complaint said Ludwig Seheriff was sworn and testified. An examination of the record containing said Scheriff’s testimony discloses the fact that Mr. Seheriff is an old gentleman some eighty years of age and that his testimony is indefinite and contradictory in many particulars, but it is apparent that the transaction out of which said controversy grew was a claim of Mr. Scheriff’s for the recovery of taxes that had been wrongfully assessed against him and paid, and to recover back taxes so collected from him, which amounted to over $1,500. He called upon Judge McCray in reference thereto, and it was concluded on consultation that a suit should be brought to recover back said taxes, and by agreement between Mr. Seheriff and Judge McCray the fees were to be one-half of the amount recovered back from the county.

The case was finally compromised for the sum of $792.02. The compromise was brought about in this way. If the ease had proceeded to trial Mr. Seheriff would necessarily have been a witness, wherein he would have been subject to examination concerning his property, etc., and this he’absolutely refused to do. Rather than be a witness he was willing that the whole sum might be lost so far as he was concerned, as he would not go into court and subject himself to an examination. Thereupon negotiations were entered into whereby a compromise was effected for the amount above stated, viz., $792.02, and this sum was paid to Judge McCray. Afterwards $150 was paid to Mr. Seheriff and a receipt was given by him to Judge McCray for $400. Seheriff claims that this amount was never paid to him and he denied in his testimony that he had agreed to give one-half of the amount recovered back to the attorney for collecting the same. An ex-animation of the testimony of Mr. Scheriff shows that he was either very forgetful or that his testimony is inconsistent and unreliable.

On the other hand, Judge McCray testifies in his own behalf concerning the transaction, and his testimony is clear and convincing as to the transaction from its inception to its final determination, and shows that in place of there being a wrongful appropriation of any part of this money recovered back, that the judge was more than generous in settling with this old man and paying him more money than he was entitled to under the contract that he had made for the collection of the claim on account of back taxes paid.

It is very apparent to the court that old Mr. Scheriff had been used by some designing parties to institute complaint against Judge McCray, and without any ground therefor was willing to make complaint that he had not been paid his share of the money that was so refunded by the county for taxes that had been wrongfully collected from him. The court thinks that the whole trouble in the matter grew out of some jealousy or ill-feeling by some parties against Judge McCray, and that they could and did wrongfully use this old man to induce him to make these charges against the judge, and this court is surprised, in view of the testimony that was given in this case and the nature of the testimony as given by Mr. Scheriff, how the court or the judges thereof ever could have arrived at a conclusion or result that Judge McCray in this transaction was guilty of misconduct as an attorney involving moral turpitude, and we think that the judgment and finding of the court is not supported by the evidence, but is manifestly contrary thereto.

Therefore, the judgment of this court is that the specification under charge number 1 is not supported by sufficient evidence and is contrary to the evidence.

It is also charged that H. L. McCray is guilty of unprofessional conduct in his office as attorney and counselor at law involving moral turpitude in this, to-wit:

From the records of the Probate Court of Ashland County it appears that on or about October 4, 1904, one E. F. Shelley was appointed guardian of one Paul Oliver and his estate and duly qualified and entered upon his trust; that such proceedings were thereafter had as compelled him to file an inventory and account of his administration of said trust, to which inventory and account exceptions were filed and heard, among which were exceptions to a large amount paid to said Henry L. McCray, to-wit, about $5,000.

It further appears that the same was heard before Wickham, Judge, in the court of common pleas on or about the 15th to the 18th day of June, 1909, both inclusive, and resulted in a disallowance of the said $5,000, which said guardian paid to said II. L. McCray for alleged services rendered. In that proceeding it was found by the court of common pleas that the payment of the said $5,000 was not a legal or proper charge in whole or in part.

The facts concerning this transaction are that said E. F. Shelley, under a claimed power of attorney to act for Paul Oliver, went to the office and secured the. services of said H. L. McCray for the purpose of getting the custody and control of about $26,500 belonging to said Paul Oliver, then in the hands of one S. A. Raridon, cashier of the First National Bank of Loudonville, Ohio, in which bank Paul Oliver was a director and president.

The legal services which said McCray was called upon to do and which he did were to prepare and file a petition for an injunction, commanding said Raridon to deliver the certificates or money to said E. F. Shelley; that the date of this claimed contract for legal services was prior to the appointment of E. F. Shelley guardian; that the action was brought by the said H. L. McCray for E. F. Shelley individually against S. A. Raridon, and in no way connected the name of Paul Oliver with such transaction. That said Raridon had retained as his attorney in the matter Mr. Jesse Hissem, of Loudonville, Ohio, which appears of record in the appearance docket volume 28, page 394 of the records of said court of Ashland county.

Without going into too much detail as to the specifications under this charge, it is sufficient to say that in support of this charge said S. A. Raridon was sworn and testified, .and from his testimony it appears that Raridon was the cashier of said bank at Loudonville, in which said bank Mr. Paul Oliver was a large holder of stock, and had funds in said bank aggregating some $62,000. That there was $26,500 in cash which was evidenced by certificates of deposit issued by said Raridon payable to his order. Said certificates were for the amounts following, to-wit: two for $10,000 each, one for $5,000, and one for $1,500. Raridon had possession of these certificates, and Mr. Oliver becoming uneasy about the financial responsibility of Mr. Raridon, wanted to have the certificates turned over to him. This Raridon refused to do, and thereupon Mr. Oliver called upon Judge McCray to consult him with reference thereto, and upon consultation it was concluded to bring an action. Said E. F. Shelley as the friend of Oliver and later his guardian consulted with Judge McCray as to what would be the best course to pursue to get said certificates from said Raridon.

Upon consultation with Mr. Oliver and other parties interested with the bank, it was thought best not to bring a suit directly against Raridon by the bank for said certificates, as such a proceeding it was feared might hurt the credit of said bank. Therefore a different plan was adopted than to have a suit brought by Mr. Oliver as president or otherwise of the bank or the bank itself. Before any action was taken it was agreed by Mr. Oliver with Judge McCray that if he would recover back said certificates that his fee should, be $5,000.

A petition was prepared and filed asking for an injunction restraining him from disposing of said certificates. Mr. Hissem, an attorney at law residing at Loudonville where said bank was situated, and who was the attorney for said bank, upon application to court for permission to withdraw said petition from the files, temporarily obtained such an order, but said petition seemed to have been mislaid or lost and was never returned to the files in said court.

After considerable controversy between Mr. Raridon, Mr. . Hissem and the sheriff, Mr. Raridon finally endorsed said certificates and turned the same over to Sheriff Homan in the bank at Loudonville.

Judge McCray testified in his own behalf as to this transaction and his connection with Mr. Paul Oliver in the bringing of the suit and the agreement as to what the fee should be. Mr. Oliver proposed that if he recovered back these certificates that he would give him $5,000. Judge McCray’s testimony is clear and convincing as to this transaction and shows that it has none of the elements of fraud or moral turpitude such as is contemplated by the statute, Section 1707, regulating proceedings for disbarment of attorneys for misconduct in office.

It seems from the testimony and the record in this case that it finally resulted in a compromise between the parties concerned whereby the certificates were turned back to the sheriff by Mr. Raridon, but to accomplish this through Mr. ITissem it seems that there was some claim made by him that he should be paid for his services in connection therewith. The matter was submitted to Mr. Oliver, but he was unwilling to give anything more than the $5,000 and that whatever was to be paid in the way of costs or attorney fees had to be paid out of the $5,000 that was to be given to McCray for the recovering of these certificates. Mr. TIissem insisted that he was entitled to fees, and his first claim was that he should have one-half of the $5,000. Judge McCray thought this was unreasonable and unfair to him, and he protested against paying'that amount, and finally it was agreed that Hissem was to receive $2,000 for his services, which was paid. The balance of the $5,000 would rightfully belong to Judge McCray.

Taking this whole transaction as disclosed by the testimony of Raridon and McCray, this court is satisfied that there is no just ground or reason for the judgment that was found and rendered by the court of common pleas or the judges thereof hearing the case. Taking into consideration the relation of these parties to each other, meaning Oliver, Raridon and Hissem, and in view of the testimony of Raridon and Judge McCray, this court is clearly of the opinion that there is no ground for a finding that said Henry L. McCray has been guilty of unprofessional conduct involving moral turpitude in the management of either the case of Scheriff or Oliver as set forth in the specifications upon which said cause was tried, and as we have had occasion to say in connection with the complaint against Judge R. M. Campbell, post, we are at a loss to see upon what ground or theory the court of common pleas or the judges thereof, found the charges one and two or the specifications thereunder true as against said Henry L. McCray. This court, on the contrary, is of the opinion that said charges are not supported by any sufficient evidence, and that there was no misconduct on the part of said Henry L. McCray in connection with said matters of said Ludwig Scheriff or said Paul Oliver.

Therefore, the court is unanimous in the opinion that said charges and specifications are not sustained by sufficient evidence and there are no grounds justifying the disbarment of said Henry L. McCray as an attorney at law from practising in the courts of the state of Ohio or for striking his name from the list of attorneys in said state, and the judgment of this court is that said complaint be, and the same is, hereby dismissed, and said Henry L. McCray restored to all rights and privileges of an attorney at law in the state of Ohio, and that he be restored to all rights that he has lost by reason of said complaint and the proceedings thereunder had in the court of common pleas, and that he recover his costs in this proceeding against the state of Ohio.

The other charges and specifications contained in said complaint are not supported by any evidence in the case to warrant a finding or judgment against the said Henry L. McCray, and therefore the same are dismissed.


text:
    FAILURE OF BEQUEST INTENDED AS A CHARITABLE TRUST.
    Circuit Court of Cuyahoga County.
    Claudia Morris Collings v. Frank E. Davis.

    Decided, June 2, 1911.

      Wills — Devnse of Income on a Specified Sum to Worthy Poor Held Incapable of Execution — Charitable Trusts. ■

    A clause in a will providing, “the surplus money he (the executor) shall apply at the rate of $10 a month during the winter months, to buy flour and coal for worthy poor,” where said surplus money amounts to $18,000, is incapable of execution, invalid and insufficient to create a charitable trust.

      Laubscher & Kees, for plaintiff in error.

      G. W. Swartzel, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
    Error to the court of common pleas.

      Affirmed without opinion, Davis, Executor, v, Collings, 87 Ohio State, 504.

   This was an action to construe a will containing the following provision:

“The surplus money he (the executor) shall apply at the rate of $10 a month during the winter months to buy flour and coal for worthy poor.”

The surplus money mentioned amounts to $18,000.

The common pleas court held that this clause of the will creates a legal charitable trust to be administered by the executor, as trustee, who' is vested with power to apply, distribute and disburse the fund, and incidental authority to select from the class named, to-wit: “worthy poor,” the particular objects or individual beneficiaries of the testatrix’s bounty.

We think this judgment was erroneous.

This clause of the will is incapable-of execution. It clearly means that the executor is to expend $30 or $40 each year in buying flour and coal for the worthy poor; the suggestion that he is to give $10 to each poor person he selects is not sustained by any reading of the plain terms of the will.

Now, the interest on $18,000 at 4 per cent, is $720, so that this fund, after paying out $40, would accumulate at the rate of $680 a year, and yet the plain language of the will is that the principal of the fund shall be expended for the benefit of the worthy poor.

It is clear the testatrix had no idea that the “surplus” of her estate would be so large. She doubtless thought a few hundred dollars would be left which the executor could spend in the manner mentioned, within a very few years, if not in one winter. The direction to expend the principal of the fund does not warrant the creation by construction, of a perpetual and increasing charitable fund, to be administered at the insignificant rate of $40 per year for all time to come.

The two thoughts are contradictory, and so, as said, the will is incapble of execution.

There are other reasons why this clause of the will is invalid; the beneficiaries are not restricted to any locality, but embrace the whole world. The executor might very reasonably take the fund and depart with it to China, there to expend it at the rate of $10 per month, during the winter months, if they have any' winter there, for the benefit of the worthy poor of China, who exist, we are told, in million®

On this point, as well as upon the proposition contended for by counsel for plaintiff in error, that the will gives no power to the executor to select beneficiaries (which we think is well taken), see authorities cited in his brief.

There are cases both ways upon these points, and counsel for the executor has marshalled the authorities sustaining his views of the will in an exceedingly able brief, but our views of the peculiar and ambiguous wording of this particular will preclude our reaching any other conclusion than that the terms of this will can not possibly be carried out.

As there are no disputed questions of fact in the case, it follows not only that the judgment of the common pleas court should be reversed, but that judgment should here be entered in favor of the heir at law.

Judgment reversed and judgment for plaintiff in error.


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    FAILURE TO ESTABLISH MORAL TURPITUDE.
    Court of Appeals for Ashland County.
    In the Matter of the Complaint Against Robert M. Campbell, an Attorney and Counselor at Law of Ashland County, Ohio.
    Decided, June Term, 1913.

      Attorney and Client — Not Unprofessional to Prosecute a Claim for Services — Sponging Clients — Order of Disbarment Set Aside.

    1. An action for recovery of compensation for services rendered by an attorney for the benefit of a decedent during her lifetime and in the settlement of her estate after her death, negative testimony given by persons having a pecuniary interest in the estate, to the effect that they had no knowledge of the rendering of such services, can not be accepted as overbalancing direct and convincing testimony as to the distent and nature of the services, given by the attorney himself and corroborated in large measure by testimony by tne executor of the estate.
    2. Nor does the fact that counsel for the said attorney abandoned'the claim, and ordered that it be withdrawn, when confronted by a stubborn contest in court, disprove in anywise the merit of the claim; and an order disbarring the said attorney for unprofessional conduct involving moral turpitude in presenting and prosecuting such a claim will be set aside.
    Voorhees, J.; Shields, J., and Powell, J., concur.
   This cause is in this court by appeal from the Court of Common Pleas of Ashland County and is submitted to the court upon the complaint in writing against said Robert M. Campbell preferred by order of the judges of the court of common pleas of the sixth district of Ohio, wherein, among other charges and specifications, charge number 'two charges that said Robert M. Campbell was guilty of unprofessional conduct involving moral turpitude in this, to-wit:

1 First Specification. “On or about the first day of October, 1907, said Robert M. Campbell presented to one George A. Ullman, executor of the estate of one Mary Freer, deceased, a claim for compensation for services as an attorney at law alleged to have been rendered by said Campbell to said Mary Freer during her lifetime, which claim amounted to $2,400, which claim was allowed by said executor. In fact the said Campbell had rendered no such service to said Mary Freer and had no claim against her said estate, or if any services were so rendered by said Campbell, the claim so presented was largely in excess of the reasonable value of such services.

‘! By means of the aforesaid claim the said Robert M. Campbell obtained from George A. Ullman, as executor of the estate of said Mary Freer, deceased, the sum of $2,400 of the money of said estate, thereby defrauding said estate and the legatees under the will of the said Mary Freer, deceased.”

Said cause was heard in the court of common pleas to the judges of said sixth district upon said complaint on said charge number two and the specification thereunder and the evidence, resulting in a finding by said court that said Robert M. Campbell has been guilty of misconduct in his office of attorney and counselor at law involving moral turpitude as charged in the second charge of said specifications. And it was

“Ordered and decreed by the court that the said Robert M. Campbell be, and he is, hereby removed from his office of attorney and counselor at law in the courts of the state of Ohio, and that the name of the said Robert M. Campbell be stricken from the roll of attorneys.”

To this finding and judgment of the court the said Robert M. Campbell appealed to said circuit court, and the court fixed the bond for said appeal at the sum of one hundred dollars. Thereupon such proceedings were had in the premises that the appeal of said cause to said circuit court was perfected and the same came on for hearing at the June term, 1913, of the court of appeals of said county, which court is the successor in jurisdiction of said circuit court, to which said cause was appealed as aforesaid, and the same was submitted at said June term upon said complaint and the evidence.

The ease was tried in this court on the testimony taken in the court below and by agreement of the parties the transcript of testimony so taken was submitted to the court in behalf of the respective parties the same as if the witnesses were offered and examined in open court. The transcript and the evidence offered by both parties on the trial were all the evidence in the case.

In support of said second charge and the specifications thereunder a number of witnesses were called and testified, among whom were Francis J. Freer, Mrs. James Smith, Bertha Boyd, Mrs. Francis Freer, Judge McAdoo, Harry L. Hess, Mrs. Frank Freer, Frank Freer and J. A. Shearer. The testimony of these witnesses may be designated as negative testimony. They do not assume to know anything direct upon the claim involved in said charge number two, and the only reason that they give why said claim is not a valid claim against the estate of said Mary Freer, deceased, was that they never saw Judge Campbell at the home or residence of said Mary Freer, never saw him in consultation with her or doing any business for her, and therefore they came to the conclusion that he had no valid claim against her estate.

Most of these witnesses are relatives of said Mary Freer, deceased, and therefore directly interested in said estate. "While they are only collateral heirs, yet they are financially and pecuniarily interested in said estate, and upon this class of testimony and of this negative character the court found the said Robert M. Campbell guilty of misconduct as an attorney at law involving moral turpitude.

Said complaint is based under favor of Section 1707 of the General Code of Ohio, and should receive a strict construction, and the complaint should be sustained by clear and convincing proof, if not by proof beyond a reasonable doubt.

To this complaint said Robert M. Campbell offered himself as a witness and testified as to his relations to said Mary Freer and her estate which came to her from her deceased husband, one Jonas Freer. It seems from the history of the case and Judge Campbell’s connection therewith that he had been the attorney of said Jonas Freer and his brother, Randolph Freer, for a number of years and had been their advisor and counselor in many of their business affairs; that they had a large estate and many • transactions of a legal nature of importance, in all of which Judge Campbell was the advisor and counselor; that upon the death of said Jonas Freer said estate passed to and became the property of said Mary Freer. Among other assets of said estate were some six or seven farms in said Ashland county, together with real estate situated in the city of Ashland, and said Mary Freer, having been aware and advised of the fact that Judge Campbell had been the advisor and attorney of her husband, sought his advice, and also through her agent, said George Ullman, who during her life from the death of her said husband was her agent managing her business matters, including the management of said farm. In connection with said business said agent, George Ullman, consulted said Robert M. Campbell and at her solicitation communicated to said Robert M. Campbell. He also called on her at her residence a number of times in consultation concerning her business matters, among which was the preparation of wills for herself. And by express agreement made with said George Ullman, as agent of said Mary Freer, and with her knowledge and consent, it was agreed that said Robert M. Campbell should be the advisor of said Ullman in reference to the legal matters concerning said estate, and this condition continued until the death of said Mary Freer, but no compensation was paid to him during the lifetime of said Mary Freer. It was understood between said Mary Freer, Ullman and Campbell that the compensation was to be paid at the death of the said Mary Freer, and in addition to the compensation for services rendered during the lifetime of said Mary Freer he was to represent said Ullman as the executor of said Mary Freer’s estate.

Said-Robert M. Campbell’s statement of the services performed and his relations to said Mary Freer and said George Ullman is given in detail and very frankly by said Robert M. Campbell, in such a way and manner that it certainly refutes any of the negative claims that are made by the witnesses for the complaint as hereinbefore referred to. His testimony is entitled to more favorable consideration and weight than all the negative testimony of the interested parties, wherein their only reason for their theory of the case that there was no just claim against said Mary Freer’s estate was-that they never saw said Robert M. Campbell at her home or in consultation with her.

But in addition to the statements of Judge Campbell, much of his testimony is corroborated by said George Ullman, especially with reference to business matters of said estate in which they had the benefit of said Robert M. Campbell’s advice and experience as a lawyer. So that if said Robert M. Campbell was not the attorney of said Mary Freer during her lifetime so that she could be considered a client, she evidently was what might be termed a sponger upon the time and services of said R. M. Campbell.

It no doubt is within the range or experience of every lawyer of extended practice, that there is a class of persons who, while they do not pay attorneys, are always willing to receive their advice and counsel in reference to business matters pertaining to their estates, and the larger the estate the greater the benefit that class of clients receive with the least expense to them.

It appears from the testimony in the case that in fact there was nothing paid on said claim, although a receipt was given by said R. M. Campbell, but there was no money actually paid'. The only thing that was done in that regard was that a check was given for the amount, but with the understanding and on the condition that the same was not to be paid until the rumored exceptions to be filed to the account of said executor were heard and determined. It seems that the counsel for said R. M. Campbell, and perhaps the judge himself, lost their nerve in the trial of this ease, and in open court directed and consented that said claim be withdrawn and the same was withdrawn. This fact does not necessarily discredit the validity of said claim. The only thing that it tends to show is, as has been indicated, want of nerve in counsel to fight for a claim which seemed to be just and fair, and the fact that it was withdrawn does not carry with it necessarily evidence of the claim not having merit, or that the same was not an honest and just claim against said estate. We think under the circumstances as disclosed in the evidence in this case that the claim was just and should have been paid,

Taking into consideration the relation of these parties, in view of the testimony of Judge Campbell and the executor, George Ullman, this court is clearly of the opinion that there is no -ground for a finding that said R. M. Campbell has been guilty of unprofessional conduct involving moral turpitude in the management of said estate, and in the claim he presented to the administrator for allowance.. This court is at a loss to see or find upon what theory the judges of the court of common pleas found the charge number two and the specifications thereunder true. On the contrary this court is of the opinion that said charge is not supported by any evidence and that there was no misconduct in the presenting of an account to the executor of said Mary Freer’s estate under the circumstances and conditions upon which the services or much of the services charged in said account were rendered and performed.

Therefore the court is unanimous in the opinion that said charge number two is not sustained by sufficient evidence and that there are no grounds justifying thp disbarment of said Robert M. Campbell as an attorney at law from practicing in the courts of the state of Ohio, or for striking his name from the list of attorneys in said state, and the judgment of this court is 'that said complaint be, and the same is hereby dismissed, and said R. M. Campbell is restored to all the rights and privileges of an attorney at law in the state of Ohio, and to all rights that he has lost by reason of said complaint and the proceedings thereunder had in the court of common pleas, and that he recover his costs in this proceeding against the state of Ohio.

The other charges and specifications contained in said complaint are not supported by any evidence in the case to warrant a finding or judgment against said Robert M. Campbell, and therefore the same are dismissed.


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    LIABILITY FOR. LEVY ON EXEMPT PROPERTY.
    Circuit Court of Cuyahoga County.
    The American Surety Company v. The American Bonding Company.
    Decided, June 7, 1910.

      Constable’s Official Bond and Indemnity Bond — Defense of Surety on Latter Against Claim of Surety on Former.

    In an action by a surety on a constable’s official bond, who has been obliged to pay a judgment obtained against the constable for levying upon exempt property, brought against the surety on an indemnity bond given the constable by the judgment creditor to protect the constable from damages for levying upon exempt property, the surety on the indemnity bond may defend on the ground that the constable refused to restore exempt property to the judgment debtor, when directed so to do by the judgment creditor, principal on the indemnity bond.

      ,T. F. Quigley and U. A. Gouse, for plaintiff in error.

      M. B. & H. H. Johnson, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   Tbe parties to this proceeding in error.stand in the relation opposite to that in which they stood below. In a previous action there one Himmelfarb recovered a verdict and judgment of five hundred dollars against the bonding company, defendant in error here, upon a constable’s official bond on which it was the surety. Thereupon the bonding company recovered a like judgment against the surety company, plaintiff in error here, on an indemnity bond, executed and delivered by said surety company to said constable to protect him against loss from levy, etc., which he was then asked to make, and afterwards did make upon the goods and chattels of said Himmelfarb, and because of which the said judgment on his official bond was recovered.

The verdict and judgment against the surety company were recovered by direction of the court at the conclusion of all the evidence, upon the theory that the liability on the first bond was fully covered by the terms of the second. But the answer alleges, and the evidence tends to show, that the party who had caused the constable to make the levy and who had furnished him the indemnity bond, instructed him to restore to ITimmelfarb certain of the goods and chattels, so levied upon, which were claimed by Himmelfarb as exempt; but that the constable in violation of said instructions, failed and refused to return said property.

The constable’s liability for levying upon exempt property was clearly covered by each bond, and was expressly counted upon in the action upon his official bond. But the indemnity afforded by the second bond is of course subject to the defense that the constable refused to restore such exempt property at the request of him for whom he had made the levy.

The constable’s excuse for failure to restore the property is that ITimmelfarb’s representative, claiming that a part of it was missing, refused to receive any of it, when tendered back. The insufficiency of this excuse was of course adjudicated in the action upon the official bond. The issue of fact as to the alleged disobedience by the constable of the instruction given by his principal should have been submitted to the jury, and it was therefore error for the court below to direct the verdict for the plaintiff below. For this error the judgment of the court of common pleas is reversed and the cause remanded.


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    INJURY TO EMPLOYE WHILE OBEYING INSTRUCTIONS.
    Circuit Court of Lucas County.
    Clarence S. Doyle v. The Toledo Furnace Co.
    Decided, June 12, 1909.
    A peremptory order from a master to a servant to do a certain thing does not of itself render the master liable for injuries received by the servant while obeying the command so given, where the thing ordered done is of a simple every day character and one which any adult would understand as fully as the master.

      Stephen Brophy, for plaintiff in error.

      King ■<& Tracy, contra.
    Ninkade, J.; Parker, J., and Wildman, J., concur.
   The common pleas court directed a verdict for the defendant on the authority of Nussbaum v. The Lake Shore. It is said that the trial judge made a serious error in failing to discover the fact that this case belongs in a different class than cases like the Nussbaum ease, for the reason that in this case there was a peremptory order by the master to do what was done by the servant, and hence none of the principles involved in the Nussbaum case apply here. We are advised that this ease belongs to that class of cases best described by our own Supreme Court in the Van Duzen case, 61 O. S., 298, and all that is necessary is to assign this case to its proper place, and all difficulties will at once disappear. From the number of times that this Van Duzen ease is cited as a controlling authority in personal injury eases, one might conclude that it is a specific for all ills and injuries arising from torts of every kind. Just why it should be so regarded, when the case makes no such pretensions and the Supreme Court has several times stated its proper scope, we do not pretend to understand.

We have devoted a good deal of time to an examination of the record in this ease and have examined with care the brief of counsel for plaintiff in error. This brief is very exhaustive, very well prepared for ready reference with the least practicable confusion and delay in finding what is wanted on any.of the points discussed, and it may be said that it fairly covers about all the important cases to be found on the different subjects treated. It is said that when the situation is properly considered from the right view point, harmony and only harmony can be seen in all the well considered cases on questions involved. This may be so, but as we read the cases there is a good deal of conflict. ¡We can not take the time to review all the cases cited by counsel, and we will only state the conclusions we have reached in this case.

Even considering that there was a peremptory command from the master to the servant in this case to do the thing that was done, we are of the opinion that no recovery can be had in this case for the reason that the order was to an adult and was to do a thing in no sense out of the ordinary course of human affairs, a simple thing that any adult can know all about as easily as can the employer. If the doctrine contended for by the plaintiff in this case is correct, then before any employer can safely ask a servant to chop wood, the master must first learn whether the servant knows that in chopping wood chips may fly, or else he may be liable for an injury caused by flying chips. It is even said that in all eases where a peremptory order is given, the burden is upon the master to show that the servant not only knew what was likely to happen, but that he fully appreciated the situation in all its respects. We say that it is no hardship to hold than an adult who understands the intricacies of the Australian ballot should be presumed to know the powerful simplicity of the as, the hammer, the spade and the pick. We need not multiply illustrations. Many will readily suggest themselves to anyone who considers the subject in all its scope.

Our conclusion is that the principles contended for, while proper enough in cases to which they may apply, have no application to the commonplace every day affairs of men that are perfectly simple and easily comprehended by any adult person. We are aware that eases like the one at bar in many respects have been sustained by courts, and our conclusions have not been arrived at without a full consideration of the reasoning in those eases, but after full reflection, we feel compelled to- decline to follow these decisions. If any such rule is to be adopted in Ohio, we have no ambition to be the first in announcing it. We prefer to respectfully wait until we hear from our own Supreme Court on this subject. We find no prejudicial errors in the record and the judgment of the court of common pleas will be affirmed.


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    SAVING AGAINST STATUTORY LIMITATION IN CASE OF REVERSAL.
    Circuit Court of Ashtabula County.
    Florence V. Bush v. Ray E. Cole et al.
    Decided, January Term, 1913.

      Limitation of Actions — Saving of Rights in Case of Reversal — Dismissal for "Want of Prosecution After Limitation Has Expired — Section 4991, R. S., Slightly Modified in Section 11233, &. O.

    A plaintiff who brings an action within the statutory period of limitation, and the same is dismissed for want of prosecution after the limitation has expired, may bring a new action within one year after such dismissal by virtue of Section 4991 of the Revised Statutes, but where the second action is dismissed more than one year after the first dismissal, that section does not authorize the bringing of another new action.

      W. C. Ong and Charles Lawyer, for plaintiff in error.

      Munsell & Hall and H. E. Starkey, contra.
    -Norris, P. J.; Metcalfe, J., and Pollock, J., concur.
   Plaintiff in error was plaintiff below and brought suit in the court of common pleas to set aside two deeds. Plaintiff became of age July 24th, 1902. Her first suit was brought March 18th, 1905, and was dismissed for want of prosecution December 17th, 1906. A second action was brought for the same purpose February 16th, 1907. This was also dismissed for want of prosecution March. 5th, 1908, and on May 28th, 1908, a third suit was brought to set aside the deeds in question. The statute of limitation was pleaded by the defendants and judgment thereon was rendered against the plaintiff in error.

It.is conceded that the last action was barred by the statute of limitations, unless it comes within the saving clause of Section 4991 of the Revised Statutes then in force. This section so far as the question in this case arises reads as follows:

“If, in an action commenced, or attempted to be commenced in due time, a judgment for the plaintiff be reversed, or if the plaintiff fail otherwise than upon the merits, and the time limited for the commencement of such action has, at the date of such reversal or failure, expired, the plaintiff, or, if he die and the cause of action survive, his representatives may commence a new action within one year after such date, and this provision shall apply to any claim asserted in any pleading by a defendant. ’ ’

The limitation as to this class of actions was four years. Stivens v. Summers, 68 O. S., 421.

Was the second action, which was commenced February 16th, 1907, more than four years after the plaintiff became of age, but within one year of the dismissal of the first action, an action brought in “due time,” as provided in Section 4991? Or, in other words, does that section authorize repeated new actions within one year after the discontinuance of the preceding action, or may a cause of action be kept alive and litigation prolonged indefinitely by plaintiff under that provision of the statute? We do not think so. We think within “due time” means an action brought-within the original limitation of the statute of limitations, that if the second action was not brought within that original limitation it is not brought within “due time” as embodied in that saving statute.

This question was squarely before the Supreme Court of Kansas under a statute like our own in the case of Denton v. City of Atchison, and reported in 90 Pac. Rep., 764. The court in the opinion say:

“The general periods of limitation are not changed by this provision, but it is intended to give a party who brought an action in time, which was disposed of otherwise than upon the merits after the statute of limitations had run, a year of grace in which to reinstate his case and obtain a determination upon the merits. It is a substitute for the common law rule of ‘ journeys account,’ in which the plaintiff, whose writ was abated for some matter of form which did not go to the merits, might have a new writ within a reasonable time computed by the number of days which the plaintiff must spend in journeying to reach the court. Under the rule of our statute if the dismissal occurs after the time limit has expired, the plaintiff has one year from that dismissal to bring a new action. To get the benefit of this extension two things were essential: First, the action must have been commenced within due time; and, second, there must have been a failure otherwise than upon the merits after the general limitation of time had expired. Only one year after such failure is given to bring a new action. The new action, begun more than one year after such failure, whether it was the second or third action, would be an enlargement of the time fixed by statute, and would result in permitting the plaintiff to dismiss and reinstate at will and indefinitely. The statute is remedial, and should be liberally construed, with a view of carrying into effect the purpose of the Legislature; but a liberal construction does not warrant an addition to the period fixed by statute. ’ ’

The court cites many authorities in support of its opinion.' We know of no authorities to the contrary. It seems to us no other interpretation can be given to this statute. We think it is supported by our own Supreme Court in the cases of Siegfried v. R. R. Co., 50 O. S., 294, and Ry. Co. v. Bemis, 64 O. S., 26.

It should be noticed that the codifiers have changed the punctuation of this statute. Our Supreme Court have given it undoubtedly the correct punctuation. It might be further noticed that in the new code the learned gentlemen who codified it as Section 11233 have transposed the words and left the words in “due time” somewhat indefinite, at least as to their application. We think there is no error in the record and the judgment will be affirmed.


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    INVALID TRANSFER OF PERSONALTY.
    Circuit Court of Lucas County.
    George A. Graydon v. The Atlantic Phonograph Company et al.
    Decided, March 19, 1910.

      Chattel Mortgage — Where Not Verified or Recorded — Not Given Validity 6y Agreement to Treat the Property as Realty — Invalid Transfer of Personalty.

    1. The private placing of the property of a debtor in trust in such a manner as to leave the grantor insolvent and prevent his creditors from exercising their right to pursue the property for the satisfaction of their claims can not be given validity by an honest intention to preserve the interest of the creditors by so doing and ultimately pay them off in full.
    2. An unverified and unrecorded chattel mortgage can not be rendered valid by an agreement between the parties to treat the property as real estate, where it is not in fact attached to the realty.
    3. The validity of an unverified and unrecorded chattel mortgage may be attacked by the receiver of the corporation executing the mortgage.

      E. J. Chittenden, for plaintiff.

      Kohn & Northup and Aaron Slagle, for receiver of tbe Atlantic Phonograph Co.

      King, Tracy Chapman & Welles and Smith ■& Baker, for the Citizens Safe Deposit & Trust Co.
    Wildman, J.; Parker, J., and Kinkade, J., concur.
   One George A. Graydon, a creditor of the corporation known as the Atlantic Phonograph Company, brought a suit in the court of common pleas against that company, and upon the petition of the plaintiff a receiver was appointed. Subsequently other parties were brought into the litigation and the contest finally became one substantially among the corporation which I have named, another corporation known as the Talk-O-Phone Company, the receivers of both companies, and the Citizens Safe Deposit & Trust Company.

The first feature of the controversy which invites attention is the character of a transfer made by the Talk-O-Phone Company to the phonograph company in December, 1906, of all of its assets, except certain unsettled claims, accounts and bills receivable. The property, real and personal, attempted to be conveyed' to the phonograph company was encumbered by a mortgage which at the time of the litigation was sought to be foreclosed by the Citizens Safe Deposit & Trust Company. The ease was tried in the court of common pleas and brought by appeal to the circuit court. The appeal was perfected by the receiver for the phonograph company, and some question has been made before us as to whether this appeal was properly made, inasmuch as it is said that it attempted _ to bring up only a part of the controversy. If that were true, the law expressly provides for the appealing of such part of a divisible controversy as affects some of the parties to it, leaving the judgment of the trial court to abide so far as it affects other parties who are content with it and whose interests are not involved in the matter appealed from.

The phonograph company is directly interested of course in the character of the transfer to it,, and if that transfer was a valid one so as to convey title, it would be further interested to some extent in the character and scope of the lien obtained by the mortgagee, the mortgage having been given by the Talk-O-Phone Company prior to the transfer or attempted transfer in December, 1906, to the phonograph company.

Upon motion to dismiss the appeal, we having heard the arguments of counsel, overruled the motion, and we have since carefully considered the issues presented to us in the evidence offered by the parties to support their respective claims.

Without discussion of this evidence, it suffices to say that so far as the controversy relative to the transfer to the phonograph company is concerned we are united in our view that that transfer operated to hinder the creditors of the Talk-O-Phone Company in the collection of their claims, and there is no question in our minds that the transfer was made at a time when by the transfer the Talk-O-Phone Company was left entirely insolvent; indeed, it was insolvent before the transfer was made, the amount of accounts and bills receivable owned by the Talk-O-Phone Company and which had not been pledged to the mortgagee to secure the bonds of the Talk-O-Phone Company being entirely inadequate to pay the unsecured indebtedness of the company. This transfer then should be held invalid under the familiar statute relative to transfers giving a preference to creditors and transfers for hindering and delaying and defrauding creditors. We do not base our conclusion as to this phase of the controversy upon any holding that fraud was contemplated by the parties. It may be entirely true that by the tying up of all the assets of the Talk-O-Phone Company in the control of tlie officers of the phonograph company or a trustee, the parties intended that the indebtedness of the company should in time be taken care of in the manner provided in the conveyance and in the contract between the two corporations. But the law will not permit the placing of property in trust in such a manner as to leave the grantor insolvent and so as to prevent creditors from exercising their right to pursue property pursuant to the provisions of law. This property was placed in such form that it would be no longer subject to execution against the Talk-O-Phone Company, and so as to compel the receiver of the Talk-O-Phone Company, when one was appointed, to have recourse to that property only by proceedings in equity to obtain a decree invalidating the transfer.

We hold then that this transfer was invalid and that the phonograph company derived no title therefrom, as against the creditors, as represented by the receiver of the Talk-O-Phone Company. And this holding removes any need .of considering, so far as the- phonograph company is concerned, the matter of the claimed invalidity of the bond issue, the bonds supporting the mortgage held by the Citizens Safe Deposit & Trust Company or the other question as to whether that mortgage covered chattel property and should have been filed and verified as a chattel mortgage. If these claims were not urged by any other party than the phonograph company, we might have no further question to trouble our minds. These matters are, however, urged by the receiver of the Talk-0-Phone Company in behalf of the company represented by him and its creditors.

The statute as to filing and verifying of chattel mortgages provides in substance that where a chattel mortgage is given and there is not a transfer of the possession of the property to the mortgagee, it shall be void as against certain persons, including creditors, if not filed and verified in the manner by law provided. This mortgage was not so filed and verified. It did describe certain property and attempted by its terms, evidencing the intent of the mortgagor and mortgagee, to stamp certain personal property with the character of realty so as to avoid the necessity of such verification. As held by numerous authorities, the intent of parties to a mortgage or parties to a lease may affect of ten-times the character of property attached to real estate so as to constitute it a fixture or fixtures or otherwise. Sometimes property may be so attached to the real estate and treated by the parties as affixed thereto as to become a part of the real estate, and to go with it upon any conveyance, lease, or mortgage; but we are not presented with authorities, and we have not found them, that personal property, pure and simple, unattached, may be so turned into real estate by the mere agreement of the parties, as to take it out of the requirements of the statute that a mortgage of it shall be filed and verified in accordance with the statute. A man, for instance, can not give a mortgage upon a horse or a wagon and in that mortgage say “we will treat this, and it is intended by the parties to be treated, as a real estate mortgage,” and so file and place it upon the record of real estate mortgages without that verification which the law requires as to mortgages of chattels. The parties could not thereby create a lien upon the property, valid against those persons as to whom the statute says an unverified chattel mortgage shall be void. This mortgage we think did describe some property of that character. To the extent that it describes fixtures or machinery attached to the real estate, we think the parties might properly stamp upon it the character of fixtures so as to make it realty and pass it with the mortgage; but as to the other property we think that it is not properly included in a real estate mortgage, and that no lien was created upon it by the instrument given in this case. I will not stop to specify the particular articles to which this ruling will apply. They are specifically defined in the finding of the trial court, the court of common pleas, and a full statement will be found in the journal entry, and our holding in this respect Is precisely the holding which was made by the court below.

A little question is made in one of the briefs before us, as to the validity of the bond issue to secure which the mortgage was given, and which is now held by the Citizens Safe Deposit & Trust Company. I will not stop to discuss this question further than to say that the contention of invalidity in these bonds can not avail. It is not sustained by the evidence in the record. It is urged that there is a sort of estoppel here, in that the parties rested for some time after the mortgage was made and even after the attempted transfer was made to the phonograph company, and that there is no right now to dispute either the transfer or perhaps to raise this question as to the chattel mortgage. We are not, however, in accord with this view. We think that no sufficient evidence to justify the claim of estoppel has been presented.

The question is suggested whether this mortgage is invalid as to creditors who have not obtained liens in some way, and yffiether the invalidity can be asserted by a receiver of the Talk-O-Phone Company. We have examined various authorities bearing directly or indirectly upon this question. I will not stop to read from the ones which I desire to cite, but will simply invite attention to several cases in which it was held by our Supreme Court that questions of this character may be raised by the assignee under a general assignment for the benefit of creditors, an officer who stands in a relation somewhat similar to that of a receiver so far as involves his power to represent creditors who may complain of the invalidity of the chattel mortgage because of its non-filing and non-verification. The cases to which I refer are: Hanes v. Tiffany, 25 O. S., 549; Blandy v. Benedict, 42 O. S., 295; Westlake v. Westlake et al, 47 O. S., 315; and Betz v. Snyder, 48 O. S., 492. A case having some bearing upon the matter is that of Binn v. Pottery Co., 90 Fed. Rep., 754.

In the 5th Amer. & Eng. Ency. of Law (2d Edition), at pages 1016 and 1019 are found statements concerning the right of receivers to raise this question as to the invalidity of chattel mortgages where the chattel mortgages have not been filed or verified according to law, and the notes in support of the text cite the 33d N. J. Eq., 287, and, 50 N. J. Eq., 120. I am not entirely clear that the authorities conclusively establish that a receiver might make this sort of claim, so far as the New Jersey eases are concerned, by reason of some variance in the New Jersey statute from that of Ohio. Another case to which I will make reference merely for its interest in bearing'upon some of these controversies, and without reading from it, is that of Cheney v. Maumee Cycle Co., 10 Cir. Dec., 717, decided by this court, the opinion being rendered by Judge Haynes.

Our conclusion is that the transfer to the phonograph company should be set aside; that the bonds are valid; that the mortgage does not cover the personalty as described specifically in the journal entry of the court below, and indeed I may say that the various paragraphs beginning with paragraph 6 in the somewhat extended journal entry of the court below substantially express the views at which we have arrived, and may be used as a suggestion for a journal entry of our decree. The paragraphs up to paragraph 6 are as to matters upon which findings were made by default, no pleadings having been interposed to raise certain issues.

I made a suggestion of the possibility that an appeal might bring up only the controversy between the phonograph company and the receiver of the Talk-O-Phone Company, or rather the controversy between the receiver of the phonograph company and the receiver of the Talk-O-Phone Company, as to the validity of the transfer, and that when the issue was decided against the phonograph company, it might possibly leave all the other issues in the case standing as in the court below. The statute to which reference was made at the time that the argument was had, before us on the motion to dismiss the appeal provides that a party may appeal a part of a ease in which he is especially interested. There is, however,' a further provision that the court from which the appeal is taken may make orders for the separation of the papers and defining the part of the case which is appealed from. No such order was made in this case. The only party appealing, it is true, was Mr. Holland C. Webster, the receiver of the phonograph company. But it is a matter after all of no moment now whether the other controversies, among the other parties, are appealed from or not, since our decree, as I have said, is substantially that made by the court below, and for safety it is probable that counsel should embody in the journal entry a full statement of the conclusions at which we have arrived, covering everything that the decree below covered.


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    WAIVER. OF FULL PERFORMANCE.
    Circuit Court of Cuyahoga County.
    John W. Williams et al v. A. C. Fortlage.
    Decided, June 7, 1910.

      Contract — Modification—Waiver.
    A contract provided that a house should be moved from the bottom of ' a hill to its summit, the owner expressed himself as satisfied with its position when it was placed by the mover at a point somewhat below the summit of the hill and the mover accordingly regarded his contract as fully performed. Held: This evidence does not present a cause of modification of a contract requiring a new consideration, but a case of waiver of full performance.

      Wm. M. Reynolds, for plaintiff in error.

      G. A. Besek, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   As indicated upon the hearing, we find ourselves unable to weigh the evidence in this case because one of the exhibits offered in evidence below is missing from tbe bill of execptions, never having been incorporated therein, for the reason that it could not be found. The only other error assigned is founded on the contention that the alleged modification of the contract sued upon was unsupported by consideration. The contract in question was for the moving of a house from the valley to the top of the bluff at Rocky River, but when the house was moved to a point somewhat below the summit, the owner expressed himself as satisfied with its position and the mover accordingly regarded his contract as fully performed.

These facts present not a case of modification of a contract requiring a new consideration, but only a case of waiver of some item of performance of the contract by a party entitled to insist upon or to waive such performance, as he may elect.

There being no error in the record before us, the judgment is affirmed.


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    PROCEEDINGS IN FORCIBLE DETAINER..
    Circuit Court of Cuyahoga County.
    Andrew J. McFann v. C. H. Carlton, as Executor of the Estate of C. C. Carlton, Deceased, et al.
    Decided, June 7, 1910.

      Justice of the Peace — Forcible Detainer — Error to Common Pleas — Notice to Leave when Premises Used for Gaming — New Trial — Charge to Jury — Separation of Jury Over Night — Refusal to Discharge Jury.

    1. Where a petition in error seeking to reverse the judgment of a justice of the peace in a forcible detainer case is, on leave, filed in the common pleas court, the judgment of the latter court thereon is reviewable in the circuit court. Rothwell v. Winterstein, 42 O. S., 249, distinguished.
    2. In an action in forcible detainer under the provisions of Section 4276, Revised Statutes, to recover the possession of premises occupied by the tenant for gaming, no notice to quit, other than that incident to the bringing of the suit, need be given.
    3. Under Section 6560, Revised Statutes, a justice of the peace may grant a new trial in a forcible detainer case.
    4. A justice of the peace is not required to charge the jury either before or after argument.
    5. When a justice of the peace charges a jury, his charge is not to be viewed with a critic’s eye and its imperfections are to be passed by, unless they are so plainly erroneous and prejudicial as to indicate that the verdict was unjust and unlawful.
    6. It is not reversible error for a justice of the peace to permit a jury to separate over night, after the case has been submitted to it, unless it is shown affirmatively that prejudice resulted therefrom to the defeated party.
    7. It is not error for a justice of the peace to refuse to discharge a jury when the foreman thereof on the first evening reports that the jury would probably be unable to agree, or at least that he saw no chance thereof at that time.

      Jos. L. Stern, for plaintiff in error.

      Cooh, McGowan & Foote, contra.
    ITbnry, J.; Winch, J., and Marvin, J., concur.
   The original action below was commenced by the defendants 'in error here against the plaintiff in error, before a justice of the peace, in forcible detainer, to recover possession of leased premises, upon forfeiture of the term for permitting gaming thereon. A verdict of “not guilty” and judgment rendered thereon were set aside by the justice, and a new trial granted on the statutory ground that the verdict was obtained by partiality. Section 6560, Revised Statutes.

At the second trial a verdict and judgment were recovered by the defendants in error. The plaintiff in error, by leave of court, filed his petition in error in the court of common pleas. There the judgment of the justice of the peace was affirmed and error is now prosecuted here.

A preliminary question raised by the defendants in error here challenges the jurisdiction of this court in this kind of a case upon the ground that forcible entry and detainer is a form of action intended to afford summary relief against a tenant wrongfully continuing in the possession of leased premises. It is urged that even the court of common pleas can not entertain proceedings in error prosecuted to reverse a judgment of the kind here presented, except upon leave first sought and ob" tained, and that if litigation in such cases may be indefinitely prolonged by the tenant’s persistence in seeking review through all the courts, the delay will amount to a denial of justice. Roghwell v. Winterstein, 42 Ohio St., 249, is cited. But that ease decides merely that a proceeding in error to reverse the judgment of a justice of the peace can only be commenced in the first instance in the court of common pleas, and there only by its leave, and that its refusal to grant such leave is not reviewable. Moreover, Section 6709, Revised Statutes, provides generally that:

“A judgment rendered or final order made by any court of common pleas, or a judge thereof, may be reversed, vacated or modified by the circuit court of the county wherein such court is located, for errors appearing upon the record.”

We hold, therefore, that we have jurisdiction to entertain this proceeding in error.

Coming now to the errors assigned by the plaintiff in error we shall consider them in their order.

1. It is urged that the justice of the peace had no jurisdiction of the action because a single notice to vacate the premises was made to serve the double purpose of compliance with the requirements of Sections 4276 and 6602, Revised Statutes, in that behalf. These sections are as follows:

“Sec. 4276. Whenever premises are occupied for gaming .or lottery purposes the lease or agreement under which they are so occupied shall be absolutely void at the instance of the lessor, who may at any time obtain possession by civil action, or by action of forcible detainer before a justice of the peace; and if any person leases premises for gaming or lottery purposes, or knowingly permits them to be used and occupied for such purposes, and fails immediately to prosecute, in good faith, an action or proceeding for the recovery of the premises, such lessor shall be considered in all cases, civil and criminal, as a princi" pal in carrying on the business of gaming, or a lottery in such building.
“Sec. 6602. It shall be the duty of the party desiring to commence an action under this chapter, to notify the adverse party to leave the premises, for the possession of which action is about to be brought, which notice shall be served at least three days before commencing the action, by leaving a written copy with the defendant, or at his usual place of abode, if he can not be found.”

The contention is that the former of these sections contemplates a notice of forfeiture and gives a choice of remedies as between forcible detainer in the court of a justice of the peace, and ejectment in the court of common pleas. The plaintiffs below having elected the former remedy, they were obliged, it is insisted, to comply with all prerequisites to the maintenance of that species of action, including the service of notice to leave the premises, as provided by Section 6602.

It will be noticed, however, that Section 4276, though it provides that a lease of premises shall for the causes therein named “be absolutely void at the instance of the lessor” contains no express requirement of notice to be served upon the lessee, and we think that no notice other than that incident to the bringing of the suit in one form or the other need be given. We hold, therefore, that the justice of the peace had jurisdiction of the action which was brought before him.

2. It is urged further that the justice of the peace exceeded his jurisdiction in granting a new trial, after the first verdict and judgment were rendered.

The contention is that Section 6609, Revised Statutes, which applies only to the rendition of judgment in forcible entry and detainer eases, is so irreconcilable with Section 6560, Revised Statutes, which provides generally for the granting of new trials by justices of the peace, that the latter can have no application to forcible entry and detainer eases. These sections are as Pel" lows:

“Sec. 6609. The justice shall enter the verdict upon his docket, and shall render such judgment in the action as if the facts, authorizing the finding of such verdict had been found to be true by himself.
“Sec. 6560. It shall be lawful for the justice before whom a cause has been tried, on motion, and being satisfied that the verdict was obtained by fraud, partiality or undue means, at any time within four days after the entering of judgment, 'to grant a new trial, and he shall set a time for the new trial, of which the opposite party shall have at least three days notice.”

It is true that the regulations governing the rendition of judgment under Section 6609 in forcible entry and detainer cases differ essentially from those that govern the rendition of other judgments under Sections 6579. But we do not agree that Section 6609 makes the finding of the jury so conclusively the finding of the justice himself, when judgment has been rendered upon the verdict, as to preclude his right to grant a new trial under Section 6560, when satisfied that the verdict was obtained by partiality. We hold, therefore, that the justice had jurisdiction to grant a new trial for the cause specified, and that the first judgment is no longer effective.

3. It is urged also that under Section 6705, Revised Statutes, making those provisions of the code of civil procedure “which are in their nature applicable to the proceedings before justices, and in respect of which no special provision is made in this title [the justices’ code], are applicable to the proceedings before the justices of the peace, ’ ’ the trial court erred in refusing to charge as requested before argument. We do not subscribe to this view. Justices of the peace are not required to instruct the jury at all and the provisions of the code of civil procedure in regard to requests to charge before argument are not in their nature applicable to proceedings before justices of the peace.

4. It is urged that the justice erred in his general charge to the jury, but though the instructions were not well presented, our duty in regard to justices’ proceedings, where jurisdiction is shown, is not to view them with a critic’s eye, but pass their imperfections by, unless they are so plainly erroneous and prejudicial as to indicate that the final result is unjust and unlawful. In the record before us we note that all of the requests pre' sented by the defendant below were given to the jury, except No. 2, which is in conflict with the case of Ulsemer v. State, 30 Bull., 293, and the charge from that case was repeated verbatim to the jury in this case at his request. Under these circumstances we find no error in the charge as a whole.

5. It is complained further that the justice permitted the jury to separate for the night after their deliberations had commenced, contrary to the provisions of Section 6557, Revised Statutes, which requires that:

“After the jury shall have been sworn, they shall sit together, and hear proofs and allegations of the parties; and, after hearing the same shall be kept together in some convenient place, under the charge of a constable, until they have agreed upon their verdict, or shall be discharged by the justice.”

This provision is clearly directory, and unless its violation be shown to have resulted prejudicially to the defeated party, no error can be predicated upon it. Downer v. Baxter, 30 Vt., 467; Cullen, Administrator, v. B. & O. Railroad Co., 1 Ohio Supreme Court Decisions, Unreported, 266; Armleder v. Lieberman, 33 Ohio St., 77.

For like reasons we think there was no error in refusing to discharge the jury when the foreman reported on the first evening that they would probably be unable to agree, or at least that he saw no chance thereof at the present time.” Section 6559, Revised Statutes; Poege v. State, 3 Ohio St., 229, 239; Hines v. Slate, 24 Ohio St., 134, 138.

6. Misconduct of counsel and jury is also urged as a ground for reversal. But without reviewing the facts of the alleged misconduct at length, it suffices to say that we do not find any prejudicial error in these respectó.

There b.eing no ground for reversal found in the record the judgments of the court of common pleas and of the justice court are affirmed.


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    DURATION OF TERM OF LEASE WITH OPTION OF RENEWAL.
    Circuit Court oí Cuyahoga County.
    The Swetland & Sons Co. v. The Bronx Realty Company.

    Decided, June 28, 1910.

      Lease for Three Years.

    As between the parties to it, a lease for three years, whether the term begins at once or in the future, need not be attested, acknowledged or recorded, and this is so even though the lease contains an option to the tenant to renew or extend the same for another like period.

      Carpenter, Young tfi Stocker, for plaintiff in error.

      Deuteh, Hoiuells & Grossman, contra.
    Henry, J.; Winch, J., and Taggart, J., concur.

       Affirmed without opinion, Swetland & Sons Co. v. Bronx Realty Co., 86 Ohio State, 313.

   The parties stand in the relation opposite to that in which they stood below. There the action was for rent accrued under a writing of March —-, 1906, purporting to be a lease for three years commencing April 1, 1906, with an option to the tenant to renew or extend the same for another like period. The first cause of action is for rent for a period of actual occupancy by the lessee, and as to this there is no dispute. The second cause of action is for later rent after the premises were vacated without cause. The judgment recovered for this rent is claimed to be erroneous because the lease being for a term exceeding three years, and hence not within the terms of Section 3112, Revised Statutes, was not executed as required by Section 4106, Revised Statutes. That the term exceeds three years is argued first, from the fact, that the three year period contemplated commences in the future, and secondly, that it is subject at the tenant’s option to a renewal or extension for another three year period.

We find ourselves unable to agree with either of these contentions. Without deciding what the rights of innocent purchasers or other third parties might be, nor what force the option •might have if it were sought to be exercised, for as we view the matter these questions are not involved, we hold that Section 4112, Revised Statutes, applies to a term of three years or less, whether beginning in futuro or in praesenti.

A reference to the acts of February 4, 1828, and February 22, 1831, 3 Chase’s Statutes, pp. 1588, Section 2, and 1845, Sec tion 9, being the originals of said Section 4112, makes it evident that it is the duration of the term and not the time to elapse after the making of the agreement, which the Legislature had in contemplation in this behalf.

On the other point, an examination of Toupin v. Peabody, 162 Mass., 473, and of the other authorities cited, fails to disclose any clear authority, nor do we perceive any reason, for holding that the demise of the term is invalidated by annexing thereto a conditional agreement to lease the property for an additional period.

We find no error in the record and the judgment is affirmed.


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    CHARGE OF COURT IN SUIT ON NOTE.
    Circuit Court of Cuyahoga County.
    H. C. Odenkirk v. Katherine Higgins.
    Decided, June 28, 1910.

      Promissory Note — Joint Makers — Relationship Between them of Principal and Surety — Notice to Payee.

    In a suit on a promissory note against one of two joint makers, it is error to refuse to charge that the plaintiff is not bound by the relationship of principal and surety alleged by the defendant to exist between the joint makers, unless he had notice of that relation when he took the note.

      Parsons & Fitzgerald, for plaintiff in error.

      Charles 8. Beardsley, contra.
    H(enry, J.; Winch, J., and Marvin, J., concur.
   The parties here stand as they stood below. There the action was commenced tinder the statute against the defendant in error as one of two joint makers of a promissory note. The answer averred that said defendant was to'the knowledge of the plaintiff, a surety only and that the plaintiff having released the other joint maker the defendant was thereby also released. The defendant recovered a verdict and judgment, which are here sought to be reversed as being against the weight of the evidence and also for error in the charge.

We find sufficient evidence to support the verdict. As to the charge, the court was asked to instruct the jury that the plaintiff was not bound by the relationship of principal and surety alleged to exist between the joint maker of the note, unless he had notice of that relation when he took the note. Despite the conflict of authority, we think the court should have so charged. Bmuson v. Taylor, 30 Ohio St., 389. Compare also Section 5832, Revised Statutes of Ohio.

For this error the judgment is reversed and the cause remanded.