text:
    DIVORCED WIFE NOT ENTITLED TO BENEFITS FROM FRATERNAL ASSOCIATION.
    Circuit Court of Cuyahoga County.
    Blanche Mahar v. Rosie Mahar et al.
    Decided, February 13, 1912.

      Fraternal Beneficiary Association — Death Benefits — Divorced Wife Oan Not Receive.

    Under Section 9467, General Code, payment of death benefits by a fraternal beneficiary association can not be made to one who was the wife of the member when a certificate was issued to him, and named therein as his beneficiary, without after change, but was divorced from him before his death and hence before the death benefits became payable.

      Hidy, Klein & Harris, for plaintiff in error.

      E. P. Strong, J. D. Clark and George C. Johnson, contra.
    Marvin, J.; Winch, J., and Niman, J., concur.
   The Independent Order of Foresters filed its petition in the court of common pleas, alleging that it is a fraternal beneficiary association, organized under the laws of the Dominion of Canada and doing business in Ohio by authority of law. That on the 19th day of January, 1909, one William Mahar died, being then a member of said association, to whom it had theretofore issued a benefit certificate in the sum of one thousand dollars, which was then in full force, and setting out that it was ready to pay said sum to the person entitled to receive the same, and brings the amount into the court to abide its order. That Blanche Mahar and Rosie Mahar each claimed payment of this benefit fund to herself, and so the question of the party entitled to the payment was submitted to the court.

Both of these parties answered, each setting up facts which she claimed entitled her to the money. The court ordered that Rosie Mahar was entitled to it and made its order accordingly. To this finding and order .Blanche Mahar prosecutes this proceeding in error.

The facts are these: one William Mahar and the plaintiff in error, Blanche Mahar, were married June 20th, 1900, at Lorain, Ohio. Soon after their marriage and in November, ’ 1901, the said William Mahar became a member of Court Huntington-tower No. 3835 I. O. F. and took out insurance in the sum of $1,000, which insurance under the mortuary certificate was made payable to Blanche Mahar, the plaintiff in error, who was then his wife. The parties lived together from that time on until 1908 when they separated and the said William Mahar secured a divorce from his wife in the Court of Common Pleas of Cuyahoga County, Ohio. Thereafter the said William Mahar, on or about the 2d day of December, 1908, married the defendant in error, Rosie Mahar, and the following month, to-wit, the 19th day of January, 1909, died, and during all of the time aforesaid the said William Mahar resided either in Cleveland or in Lorain, Ohio. The beneficiary was at no time changed. The policy now reads, and the certificate evidencing the insurance is made payable to Blanche Mahar, the plaintiff in error. No children were born to either the plaintiff in error or the defendant in error.

The contention on the part of the plaintiff in error is that Blanche Mahar, having been designated originally as the beneficiary in the beneficial certificate, and no change of beneficiary having been made, as it could have been made by William Mahar had he applied to the association to have such change made, the person entitled to payment remains unchanged, and so the court should have ordered that the money be paid to Blanche; whereas, on the other hand, it is argued that though Blanche was named as the beneficiary in the certificate, yet the fact of the divorce of William from her took away from her all right to any payment under this certificate.

The certificate itself provides, among other things:

“The supreme court doth further agree, subject to the proviso hereinafter contained, on the death of the said member being established to the satisfaction of the executive council, to pay to the beneficiary or beneficiaries designated hereon (the said member reserving the power of revocation and substitution of other beneficiaries in accordance with the provisions of the constitution and laws of the order) a mortuary benefit of one thousand dollars, less the amount paid on account of the total and permanent disability benefit,” etc.

It is further provided that the certificate is issued “subject to the provisions of the. constitution and laws of the order as they existed at the time the said applicant became a member of the order, and as they may be amended from time to time thereafter.”

The act of incorporation in the Dominion of Canada, under and by virtue of which the association was created and chartered provides, among other-matters, that the purposes of such association shall be:

“A. To unite fraternally all persons entitled to membership under the constitution and laws of the society;
“É. To establish a benefit fund, from which, on satisfactory evidence of the death of a member of the society who has complied with all its lawful requirements, a sum not exceeding $3,-000 shall be paid to the widow, orphans, dependents, or other beneficiary whom the member has designated, or to the personal representative of the member; or from which upon the completion of the expectancy of life of a member, as laid down in said constitution and laws, such shall be paid to himself.”

The constitution of the organization provides, among other things:

“The insurance or mortuary benefit of a member shall be paid to the member himself, or to' the wife or husband of, or to the affianced wife of, or to the affianced husband of, or to the children of, or to the blood relations of, or to persons dependent on the member.”

Lt is manifest that if the right to payment of this mortuary benefit depends upon the relation which subsisted between the member and the person named as a beneficiary at the time of the issuing of the certificate, this money should be paid to Blanche Mahar. And it may here be said that if she is not entitled to such payment, she was not prejudiced by the order of the court fixing Rosie Mahar as the person to whom the money should be paid. This is said because objection was made to some evidence offered in support of the proposition that Rosie Mahar and William Mahar were legally married after the divorce betweeh Blanche Mahar and William Mahar. Since, however, it is a .matter of indifference to Blanche Mahar to whom this money should be paid provided she is not entitled to receive it, no prejudice came to her because of any ruling upon evidence in relation to the marriage of Rosie Mahar and William Mahar.

Our attention is called by counsel for the plaintiff in error to a considerable number of eases in which it is held that the person designated as the beneficiary, if entitled to be so designated at the time the certificate is issued, remains such ■ beneficiary, notwithstanding a change of relation thereafter occurring between the parties before the death of the person procuring the issuing of the certificate.

The case of Connecticut Mutual Life Insurance Co., v. Schaefer, 94 U. S., at page 457, is such case. The second clause of the syllabus reads:

“A policy of life insurance, originally valid, does not cease to be so by the cessation of the assured party’s interest ip the life insured, unless such be the necessary effect of the provisions of the instrument itself. So held, where, subsequently to_ effecting an insurance by husband and wife, upon their joint lives, payable to the survivor upon the death of either, they were divorced a vinculo matrimonii, and she, having thereafter paid the premiums to the time of his death, brought suit on the policy.” '■

In the opinion of this case, Mr. Justice Bradley, at page 461, uses this language: '

“We do not hesitate to say, however, that a policy taken .out in good faith and valid at its inception, is not avoided by .the .cessation of the insurable interest unless such be the necessary effect of the provisions of the. policy itself.”

Other eases cited by counsel support this proposition as applied to regular life insurance companies, but it is to be remembered that the company now being considered is governed by the statutes applicable directly to fraternal beneficiary associations.

In the case of White v. Brotherhood of American Yeomen, decided by the Supreme Court of Iowa and found in 99 N. W., at 1071, a ease arose under the provisions of Section 1824 of the code of Iowa, and it is said in the second clause of the syllabus:

“The code, Section 1824, provides that no fraternal association shall issue any certificate unless the beneficiary be the husband, wife, relative, legal representative, heir or legatee of such member. An association which expressed its object to be a bestowal of financial benefits on the family, widow, heirs, relations and such others as may be permitted by the laws of the state, and constitution and by-laws, and which permitted a change of beneficiary, issued a certificate payable to a certain person by name, such person being the wife of the member when the certificate was issued.. Subsequently she was divorced.and the member remarried, but made no change of beneficiary. Meld -. That on the death of the member, the first wife was entitled to the proceeds of the certificate.”

In the opinion of this case, Judge Sherwin uses this language:

“The statutevprovides only for the relationship that shall exist when the certificate is issued, and does not in words, or by fair implication, limit payment to those only who. occupy such relation at the time of death. It was the evident intent of the Legislature to prohibit anything in the nature 0- gambling contracts, and to so limit the beneficiaries as to accomplish such a result.”

And further along in the opinion it is said:

“It is a well recognized rule that a policy of life insurance or a designation of a beneficiary, valid in its inception, remains so although the insurable interest or relationship of the beneficiary has ceased, unless it is otherwise stipulated in the contract.” Citing Life Ins. Co. v. Schaefer,, 94 U. S., supra, and Bacon on Benefit Societies, Section 253.

Turning to the section referred to in Bacon, we find this:

“The general rule undoubtedly is th¿,t á policy of life insurance or a designation, of beneficiary, . valid in its inception, he-mains so, although the insurable interest or relationship of the beneficiary has ceased, unless it is otherwise stipulated in the contract.”

In support of this a large number of authorities are cited which sustain the doctrine in the text and as stated in the eases from which quotations have hereinbefore been made.

Bacon then follows in these words;

“Where, however, the beneficiaries of members of benefit societies were, by statute, restricted to the family dependents or relations of their members, and a member of one of such societies designated'his wife from whom he afterwards was divorced, it was held that she lost her rights under the designation in consequence of such divorce.”

This case will seem to be apparently against the authorities, but the reason given is that under the statute the relationship or status must exist at the time of the maturity of the contract.Especially is this true if the regulating statute specifies certain classes to which payment of benefits shall be made.

Bacon then calls attention to the Iowa case, White v. The Brotherhood of American Yeomen, supra, and this, as has already been shown, is reasoned by the court upon the proposition that the statute fixes who may be named as beneficiaries, but it does not fix to whom payment shall be made. '

The section of our statute, which has already been quoted, expressly provides that the payment of death benefits shall be confined to the family, heirs, relatives by blood, marriage or legal adoption, affianced husband or affianced wife, or to a person or persons dependent on the member.

Attention has already been called to the law of the association which provides for payment to be made to parties other than the beneficiary named, where the payment to the beneficiary would be repugnant to the laws of the state or country at the time of the death of the member causing the certificate to be issued.

The case of Sxipreme Commandery, etc., v. Margaret Everding, 20 C. C., 689, is cited in support of the claim of the plaintiff in .error, Blanche Mahar. In that case nothing is said with reference to the statute of Ohio fixing the persons to whom payinent'should be made. The decision seems based entirely upon the proposition that the person to whom the money was awarded .was- the, wife of the member at.the time the certificate- was issued, and was therefore a proper person to be named as beneficiary, and then to reach this conclusion because of the cases which hold that a person, properly a beneficiary at the time of the issuing of the certificate, remains such beneficiary so long as no change of beneficiary is made in the certificate.- But the ¡cases cited are those where the policies were issued by regular life insurance companies.

' That case was decided by a very able bench, consisting of Judges Scribner, Bentley and Haines, and the opinion was prepared by Judge Haines, for whose opinion we have the highest •respect, as has the entire bar of the state. However, that case .was decided in 1893. A later case, Brotherhood, etc., v. Jane Taylor, etc., decided by the- Circuit Court of Ross County in 1906, holds the contrary, doctrine. This case was also decided .by a very.able court, and we fell disposed to follow this rather .than the Lucas county case. In that case there had been a .divorce between the.member on whose account the certificate ■}vas -issued and the beneficiary designated in the policy, who was his wife at the tune, the certificate was issued. The third elaus.e of the syllabus in this case reads:

“Under the laws of Ohio, beneficiary certificates are to be , construed with reference to the status of the beneficiary at the time of payment (meaning payment'of the loss). The words “Alice B. Taylor’ in the certificate are descriptio personae, and may be.rejected as surplusage, and the certificate is construed ■to'mean: that if there be no wife living, the benefits go to the administratrix in trust for his heirs.”

In the opinion in this ease, Judge Jones uses this language:

“In the determination of this case, it may be said-at the outset'that the various rules of law applicable to ordinary life insurance companies do not apply in this case, for the reason ■that it is provided by statute that such associations shall be exempted from provisions of the insurance laws of this state, , and no law hereafter- passed shall apply to them unless they be expressly designated therein.”

We reach the conclusion, both from the spirit and purpose of the statutes in relation to these associations, and from the express language of Section 9467 of the General Code, that there was no error in the decision of the court of common pleas, and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    ORDER. DISALLOWING REPORT OF RECEIVER NOT APPEALABLE.
    Circuit Court of Cuyahoga County.
    August Becker v. Citizens Real Estate Co. et al.
    Decided, February 5, 1912.

      Appeal — Final Order — Order Disalloxoing Report of Receiver and Ordering an Amended Report Fot Appealable.

    An appeal will not lie to the circuit court from an order of the common pleas court disallowing a partial report of a receiver appointed in a case pending in that court and directing the receiver to file an amended report.

      W. W. Hole, for plaintiff.

      Stearns, Chamberlain & Royon, Parsons & Fitzgerald and Myers & Green, contra.
    Marvin, J.; Winch, J., and Niman, J., concur.
   August Becker brought a suit in the court of common pleas against the Citizens Real Estate Company, a corporation, setting up that he was a creditor of such corporation, and averring other facts, which, if established, would justify the appointment of a receiver to take charge of the property-of the corporation, convert it into money and distribute the avails thereof.

Such proceedings were had in this action that Howard A. Byrns was appointed such receiver and as such made a partial report'to the court on the 14th day of June, 1911.

On the 6th day of July, 1911, P. L. Wenham, one of the creditors of the corporation, filed objections to this report, specifying a large number of items for which the receiver had taken credit to himself in the report, and concluding in these words:

“The said receiver has disbursed the funds of said estate, as shown by his partial report, in the payment of unnecessary expenses, the maintenance of an office in the Citizens Building, including office rent, telephone service, the salary of a stenographer and various other items of expense, which are not properly chargeable to said estate; that said report should not be confirmed, but that the said report should be disallowed and the receiver be ordered to file a correct statement of his transactions.”

On the 24th day of October, 1911, the court entered its order on this motion in these words:

“The objections of F. L. Wenham to the report of the receiver and motion to disallow same is heard and granted, at the receiver’s costs, for which judgment is rendered against him, and said receiver is ordered-to file an amended report by-November 4, 1911. The amount of the bond for appeal is fixed in the sum of $200.”

The receiver gave his bond for appeal, and did all things necessary to perfect such appeal, provided the order is one from which an appeal may be taken. If this matter is a proper subject of appeal, it is because it comes within the provisions of Section 12224 of the General Code. This section provides that:

“An appeal may be taken to the circuit court by a party, or other person directly affected, from a judgment or final order in a civil action rendered by the common pleas court, and of which it had original jurisdiction, if the right to demand a jury therein did not exist.”

We are clearly of the opinion that the order made in this case is not a final order within the meaning of the section quoted above.. Nobody’s rights are fixed by it. The amount which the receiver is to distribute is not fixed. The amount of credits to which the receiver is entitled is not fixed. Nothing is fixed but that the report as a whole is not approved, and the court orders that a new report shall be'filed. Tt is no mor'e final than an order sustaining a demurrer to a petition is final, where leave is given to amend the petition.

To construe this order as determining that no part of the credits objected to will be allowed, is to give it a construction which it clearly was not the intention of the court it should have. Had such been the intention of the court, the order should, and doubtless would have been, that certain items of credit claimed would not be allowed, and having specified such as should be so disallowed, there would have been no occasion to require an additional report to be filed, because the report taken in connection with the order would have shown the amount in the receiver’s hands to be thereafter accounted for.

If there were no other reasons for holding that this is not a final order, the foregoing would he sufficient, and would require us to sustain the motion to dismiss this appeal.

The case of Evans v. Dunn, 26 O. S., 439, relied upon by the appellant does not, as we view it, support his contention. There a final report by a master was filed, stating an account between partners. Exceptions were taken to certain items in the report. The allowance or rejection of these items, or any of them, affected the amount to which each of the parties was entitled. The settlement of this account, the order of the court approving it, disposed of the entire controversy. The court ordered the modification of the report, and as so modified, it was confirmed. This was held to be a final.order from which an appeal could have been taken. It was not taken, and therefore the court refused to hear evidence touching the questions settled by the order.

Whether any order made by the court of common pleas, in the settlement of the accounts of a receiver, can be appealed from, need not here be determined. Counsel are familiar with the case of Scheidler v. Railway Co., 2 C. C., 453, where the holding is that the only remedy open to the receiver, who feels aggrieved in such a case, is by proceedings in error. See also R. R. Co. v. Sloan, 31 O. S., 1.

The motion to dismiss the appeal is sustained,


text:
    DUTY OF PROVIDING A SAFE PLACE TO WORK.
    Court of Appeals for Ashtabula County.
    Guarrino v. The Union Dock Company et al.
    Decided, January 31, 1913.

      Master and Servant — Responsibility as Between a Bock Company and a Steamship Company — For Safety of Employees Unloading Vessel —Assumption of Risk — Ordinary Care.

    Plaintiff, an employee of a dock company, was by the direction of his employer engaged in unloading a steamship belonging to another company. While so engaged he was injured by reason of the unsafe condition of the place where he was working. Held:

    1. The duty of furnishing a safe place for the plaintiff to work rested on his employer, the dock company, and not on the steamship company.
    2. The plaintiff by engaging in the employment, by direction of his employers and without objection on his part, of unloading the boat of another company, did not assume the risk of the unsafe condition of the place where he was working.
    3. The duty which plaintiff owed to the steamship company was that of ordinary care only.

      Anderson & Lamb, for plaintiff in error.

      H. H. McKeehan, contra.
    Metcalfe, J.; Norris, J., and .Pollock, J., concur.
   The plaintiff in error, Stefano Guarrino, was plaintiff below, and brought this action for damages for injuries occasioned by the alleged negligence of the defendants. Upon the trial at the close of the evidence the trial judge, on motion of the Union Dock Company, directed a verdict in its favor. Thereupon the case was submitted to the jury as between the plaintiff and the Interstate Steamship Company and a verdict was rendered in the favor of the defendant steamship company.' The errors here assigned are, first, that the court erred in directing a verdict in favor of the Union Dock Company, and that the court erred in the charge to the jury. The Union Dock Company is the owner and operator at Ashtabula Harbor of a number of machines used in unloading iron ore from boats. The Interstate Steamship Company is the owner pf a boat known as the B. F. Jones. At the time the plaintiff was injured the B. F. Jones was unloading at the docks of the Union Dock Company, and the machines of the dock company were doing the work of unloading. The men who had charge of the machines and who wrere doing the w7ork of unloading, including the plaintiff, were in the employ of the Union. Dock Company, and not of the Interstate Steamship Company. The hold of the boat where the iron ore is stored consists of several compartments, each of which has a separate hatch. As the machines progressed in the work of unloading it became necessary to move them from one hatch to another, and when they were so mpved it was necessary for the workmen who were in the hold of the boat attending to the filling of the hoppers to move to the different hatches as the machines moved. In so doing it was necessary to climb a ladder to the top of the compartment and then travel along a passageway on the side of the boat from one hatch to.another. At the time of the accident to the plaintiff the unloading machine upon which the plaintiff wras working had been moved from one compartment to another and the plaintiff wras going from the one where he had been at work to the one where the machine had been moved. He wras going in the usual manner and along the usual route. There wras upon the shelf or gangway where the plaintiff was obliged to walk in going from one hatch to another some timbers which are called strong-backs. It was dark in going through the place where these things were left, and the plaintiff, as he came to the top of the ladder and stepped over the side of the hatch onto the gangway or shelf, as it is called by some, stepped upon one of these timbers and was thrown or knocked to the bottom of the boat, and there received some injuries.

There is evidence in the ease tending to show that the gangway where these timbers had been left was not a proper place for them, and clearly it was a question for the jury whether or not there was negligence on the part of the defendant companies, or either of them, in leaving them in that place, and whether or not the plaintiff had been furnished a safe place to work.

The duty of furnishing a safe place for his workmen rests upon the employer, and the fact that the place where the men were working belonged to another company does not excuse the dock company from its duty in that respect in the least, but the fact that the duty of furnishing a safe place in which to work rested upon the dock company could not in any way excuse the steamship company from the consequences of its negligence in leaving the place where the plaintiff was working unsafe. The plaintiff in engaging in the work of unloading boats assumed no greater and no different risk than he would have assumed if the boat had been owned by the dock company, his employer; consequently he did not assume the risk of the unsafe condition of the boat. It being a question for the jury to determine whether or not the place provided by the defendants for the plaintiff to work was a safe place it was error in the trial judge to direct a verdict in favor of the dock company.

Was the charge erroneous? The part of the charge complained of was as follows:

“The plaintiff is presumed to have assumed the risk of such injuries from accident which were incident to the nature and character of the work in which he was engaged, and against which the defendant could not, in the exercise of ordinary care, have protected him.”

And again:

“The plaintiff is not entitled to relief against the defendant for injuries resulting from known and obvious dangers avoidable by the exercise of ordinary care on his part, notwithstanding the defendant may have been negligent. Such injuries, to gether with such as may have happened, if you so find, with no fault on the part of the defendant were assumed by the plaintiff.”

The question of assumption of risk is a question between employer and employee. The plaintiff’s contract of employment was with the Union Dock Company and not with the Interstate Steamship Company. lie did not assume the risk of any negligenee on the part of the steamship company; neither did he assume the risk of the unsafe condition of the place where he was working. We think, therefore, that the charge is erroneous and misleading, and for these reasons judgment is reversed, as to both of the defendants.

Judgment reversed.


text:
    CUSTOM WITH REFERENCE TO BROKERS’ COMMISSIONS.
    Court of Appeals for Hamilton County.
    The Metropolitan Bank & Trust Company v. Newcomb & Jenkins.
    Decided, June 21, 1913.

      Custom, and Usage — Not a Sufficient Basis for Claim for a Commission for Leasing Property, When — Action by Brokers for Recovery of a Commission.

    The custom of a locality with reference to commissions for leasing property is not binding on a property owner who has no knowledge of such custom, and an action does not lie for recovery of such a commission where it is not based on a contract, expressed or implied.

      Bode & LeBlond, for plaintiff in error.

      C. J. McDiarmid, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.
   . The action below was brought to recover a real estate commission for the securing of a lease on rooms used by a Chinese restaurant. The evidence shows that one of the members of the firm of real estate agents made the acquaintance of two China-men who were seeking quarters for a high-class restaurant in Cincinnati and proceeded to try to find suitable quarters. Noticing that the rooms above defendant’s bank were unoccupied, inquiry was made of the cashier of. the bank as to whether they were for rent and the terms. The agent introduced himself to the cashier by handing him the card of his firm, showing they were real estate agents.

There is no testimony in the record to show that at any time any conversation was had between plaintiffs and defendants indicating that a commission was to be charged the bank for the securing of a tenant for it, and the attitude of the plaintiff throughout the transaction appeared to be as representatives of the lessee. The lease was finally consummated, and plaintiffs seek to collect the commissions fixed by the rule of the real estate exchange of which they are members, claiming that the rule of the real estate exchange has created a custom of the locality, upon which they are entitled to rely.

The record shows that this custom was not known to Mr. Morrison, who represents the bank, nor was it brought home to any officers of the bank during any of the negotiations. Objections were made to the introduction of proof as to the custom, unless knowledge was shown by the defendant of its existence. We are of the opinion that it was error in the court below to allow such evidence to be introduced, there being no evidence sufficient to establish an implied contract between the parties.

There is no question but that plaintiff did represent the lessees; and that being the case, if they assumed to represent — as they claim in this suit they did — the lessor, then, it was error in the trial court to refuse the special charge which was asked by defendant before submission to the jury, which was as follows:

“A real estate broker who assumes to act for both parties can not recover compensation from either party, even on an express promise, until it is clearly shown that each party had full knowledge of all the circumstances connected with his employment by the other which would naturally affect his action and had assented to his double employment. ’ ’

See cases of Bell v. McConnell, 37 O. S., 396; Capener v. Hogan, 40 O. S., 203.

Plaintiffs, however, rely upon a contract with defendant. The record fails to show that any contract was entered into by plaintiff with defendant, either express or implied. A motion was made by defendant at the close of all the evidence for an instructed verdict in its favor,'and this court is of the opinion that it was error in the court below to refuse said motion.

The court therefore is of opinion that the judgment below should be reversed, and that judgment should be entered here for plaintiff in error.


text:
    AS TO AUTHORITY FOR. PAYMENT OF CHECKS.
    Court of Appeals for Clinton County.
    J. C. Cumberland and Carrie W. Cumberland v. Farmer’s Exchange Bank.
    Decided, June, 1914.

      Banks and Banking — Checks Charged by Bank Against the Account of an Individual Partner — Estoppel Against Denial of Authority So To Do.

    Where a bank had charged a depositor against his account checks issued in payment of the expenses of a partnership of which he was a member, and where his bank book was balanced and his checks returned several times subsequent thereto and no protest was ever made until suit had been brought against him on a note which was renewed after the canceled checks had been returned to him. Held: That a jury was justified in a verdict against him.

      H. S. Pulse, for plaintiff in error.

      C. W. Swaim, contra.
    Jones, O. B., J.; Swing, P. J., and Jones, E. H., J., concur.
   While there were other points of error urged in the case, the one chiefly relied upon by counsel was that the judgment was against the weight of the evidence and was not sustained by sufficient evidence.

The checks which defendant claimed had been without authority charged against his account by plaintiff below weré checks drawn by one Morris for expenses of a business1 in which he was engaged as a partner with the defendant below, and the bankbook was balanced several times and the checks returned without a protest from the defendant. No claim was made that they were improperly paid until after the filing of this suit and the note upon which suit was brought was renewed by defendant below without objection after the payment of these checks and without any claim for reduction on account of any unauthorized checks.

' We therefore think the jury were justified in their verdict as returned, and as a careful examination of the record fails to disclose any errors prejudicial to the plaintiff in error, the judgment is affirmed.


author: By the Court

text:
    PASSENGER STRUCK BY THE BACKING UP OF THE CAR FROM WHICH HE HAD JUST ALIGHTED.
    Court of Appeals for Tuscarawas County.
    The Northern Ohio Traction & Light Co. v. Thomas E. Jenkins, as Administrator of the Estate of Edmund F. Jenkins, Deceased.
    Decided, 1914.

      Negligence — Determination of Questions Relating to, from All the Circumstances of the Case — Technical Errors Should be Disregarded, When.

    1. Whether the striking by a backing car of one who had just alighted therefrom while the car was at a standstill, was due to the negligence of the company or its operatives or to the contributory negligence of the one so injured, is a question for the jury, and their finding where supported by the evidence will not be disturbed by a reviewing court.
    2. Nor will the judgment based upon such a finding be disturbed for technical errors in the admission of evidence or the charge of the court, where it appears from the entire record that substantial justice has been rendered under all the circumstances.
   By the Court

(Yoorhees, Shields and Powell, JJ.).

This was an action commenced in tlie court of common pleas of this county by the defendant in error, Thomas E. Jenkins, as administrator of the estate of Edmund F. Jenkins, deceased, v. the Northern Ohio Traction & Light Company, plaintiff in error, for its negligence in "causing one of its ears to run over the said Edmund F. Jenkins and causing his death.

In his petition filed in the court of common pleas the plaintiff alleged, in substance, that he is the duly appointed administrator of the estate of Edmund F. Jenkins, deceased, and that the defendant company is a corporation operating an electric street railway extending in part from Canal Dover through New Philadelphia and Midvale to Uhrichsville in said county.

That on the evening of March 21, 1912, about 6:50 p. m., the said Edmund F. Jenkins was a passenger on one of the defendants’ cars from New Philadelphia to Midvale, paying his fare therefor. After riding on- said ear to a switch near Midvale and after said car had come to a full stop, and after the conductor on said ear was made aware of the fact that the said Edmund F. Jenkins would alight at said switch, said conductor-consenting, the said Edmund F. Jenkins, after said car came to a full stop, alighted from said car from the rear platform on the south side thereof, and after so alighting he started for his destination by attempting to cross said defendant company’s track by passing around and in the rear of said car, which was not then in motion, and at a distance of several feet therefrom, when, without his fault, the defendant, by its conductor and motorman who were in charge and control of said car then on said main track, caused said car- to suddenly start and move at a, high rate of speed backward and in an opposite direction, to-wit, northwesterly, from that in which it had been running, wrongfully, negligently, carelessly and uns'killfully moving said car backward and in the direction toward where the said Edmund F. Jenkins was crossing said track, and that in so moving said car backward as aforesaid, without any signal being given by the defendant or its agents or employees, and without the ringing of any bell, or the sounding of a gong, or the blowing of any whistle, or giving any notice or alarm whatever of the starting of said ear, or of its change of direction, with no light on the rear end of said car, the said Edmund F. Jenkins was, without any negligence or fault on his part, run over by- the defendant’s said car, and was crushed and mangled sinder and between the wheels and trucks thereof, of which injuries lie died within a few hours afterwards; all of which was caused by the wrongful, negligent, reckless, unskillful and unlawful acts of the defendant, its agents, servants and employees, in the management and control of said ear; and plaintiff averred that said personal injuries and death which ensued resulted to the said Edmund F. Jenkins as a direct, natural and proximate consequence of said acts of the defendant.

The petition then avers that the said Edmund F. Jenkins left surviving him his widow and children, all of whom were dependent upon him for support; and damages are prayed for against the defendant company by said administrator in the sum of ten thousand dollars.

The defendant filed an answer to the foregoing petition, admitting that on March 21, 1912, the said Edmund F. Jenkins was a passenger on one of its cars from New Philadelphia to Midvale, and paid his fare, but that he voluntarily left said car when the same was near Midvale and that thereafter he walked in front thereof when it was moving backward and was struck by said ear, causing injuries to his person from which he died shortly thereafter. It denies the negligence charged in said petition and avers that the injuries so received by the said Edmund F. Jenkins were the result of his carelessness and negligence, and it denies all the other allegations in said petition not specifically admitted to be true.

For a second defense the defendant sets up that before said ear stopped at Midvale and while said car was in motion, and against the protest of the conductor of the said car, the said Edmund F. Jenkins left said car, and after alighting therefrom, and after it traveled some distance in the direction it was going, said car backed in an opposite direction upon its track and the said Edmund F. Jenkins carelessly and negligently, and in full view of said car so moving upon said track, stepped upon said track at a time when said car was so near to him that it was impossible for the parties in charge thereof in the exercise of ordinary care to have stopped the same, and what when it was impossible to stop said car in time to avoid striking him and when, if he had looked, he could have seen, and if he had listened he could have heard, said car approaching just before or at the time when he stepped upon said track, and thereby have avoided being struck by said car, and have avoided receiving said injuries which caused his death; that said injuries so received were the result of his own carelessness and negligence in going upon said track in full view of said approaching car. The defendant denies that it was negligent in the operation of its said car, and denies that said Edmund F. Jenkins received his injuries because of any carelessness of the defendant, but avers that his injuries and death were caused by his carelessness and negligence as before stated.

To this answer, the plaintiff filed a reply, denying that said injuries received by the said Edmund F. Jenkins, from which he shortly thereafter died, were so received by him because of his own carelessness and negligence, as alleged in the defendant’s first and second grounds of defense-.

Upon the issues made by the foregoing pleadings the case was submitted to a jury, resulting in a verdict of $2,500 in favor of the plaintiff. A motion for a new trial was overruled, and judgment was entered upon said verdict. A bill of exceptions was taken containing the evidence upon the trial, including the charge of the court to the jury, and by a petition in error said cause is brought before this court for review and for a reversal of said judgment of the said court of common pleas.

In said petition in error various grounds of error are alleged, among which is that said court erred in the admission and rejection of evidence offered upon .said trial. An examination of said bill of exceptions fails to disclose that the action of said court resulted in working any prejudicial error to the plaintiff in error on either of said grounds. In several instances it appears that evidence was admitted against the objection of the defendant below which under the rules of evidence was perhaps not strictly proper, but the effect of such evidence was in nowise prejudicial to the legal rights of the plaintiff in error, and we therefore hold that the contention of the plaintiff in error in this respect is not sustained.

It is also contended that the court below erred in overruling the motion of the defendant below at the close of plaintiff’s testimony, and a like motion was overruled at the close of the entire ease, to arrest said case from the jury and direct a verdict for the defendant below. A reading of said bill of exceptions shows that the action of said court in this respect was well warranted in the light of the evidence contained therein.

It is also urged that the court below erred in refusing to give to the jury, before argument, certain written requests submitted to said court by the defendant below; and in giving in its charge to the jury certain written requests of the plaintiff below, to which the plaintiff in error excepted at the time. The requests which said court refused to give to the jury are No. 1 and No. 2, which, for obvious reasons, under the undisputed evidence in the case, we think were properly refused.

It is also contended that said court erred in its general charge to the jury upon the subject of looking and listening for an approaching car before going upon the track of said company, in this, that said court failed to give to the jury the rule laid down in the Kistler case, 66 O. S., page 326, wherein it is held that,

“The looking required before going upon a crossing should usually be just before going upon the track,” etc.

This is just what the trial court did charge.

Written request No. 4 submitted by counsel for the defendant below to be given in the charge to the jury before argument, reads:

■ “The court charges you as a matter of law that it was the duty of Edmund F. Jenkins just before he stepped upon the tracks of the defendant company to both look and listen for an approaching car,” etc.

The foregoing request was given to the jury by said court verbatim. Under Sub-division 5 of Section 11447 of the General Code, it was the undoubted right of the plaintiff in error to have the jury instructed upon the law of the case; and to this end it was the duty of the trial court to give in the charge to the jury all proper and reasonable requests made by the plaintiff in error if they contained sound propositions of law. But it is likewise true that the trial court was not called upon to repeat such instructions, for if they were once given, the duty of said court was discharged, there being no necessity to repeat the same instructions even though in different and varying forms.

Of the various written requests to be given to the jury, before argument, submitted by tile plaintiff below, it appears that but one of them was given, and that related to the question of damages, where the rule as given is approved by the courts of this state generally.

It is also urged that the verdict of the jury is unsupported by the evidence; that it is against the weight of the evidence, and contrary to law. On account of the insistence of counsel we have carefully read this entire record with special reference to this assignment of error. Nothwithstanding the claim made by the conductor in charge of the ear upon which the decedent and his son rode from New Philadelphia to the Midvale switch the evening in question, we think the testimony of the son and other passengers on said car clearly showed that said conductor did volunteer the information to the deceased and his son that they could get off said car at said switch, and that decedent after the car stopped at said place, did get off.

Whatever he may have done before that evening in alighting there from a car when in motion is immaterial, as the uncontradicted evidence is that on this evening he alighted from the ear after it had stopped; and whether he exercised ordinary care in attempting to cross the company’s track after getting off of said car was a question for the jury in view of all the circumstances in the ease. Both the alleged negligence of the company and the alleged contributory negligence of the decedent were questions of fact for the jury; and in their determination of these questions it was proper for them to consider whether or not the plaintiff in error had in its employ and service at that time experienced and competent servants managing said car, having in its charge passengers who it had undertaken to safely deliver at their destination; whether or not the plaintiff in error, by its agents and employees, signaled the backing of said car on the track, and had at said place an employee on the rear of said car while sc backing, as • called - for by the rules of said company, and as a proper regard'for the safety of persons who might be crossing said track, in the exercise of ordinary care, required; and whether or not the machinery and equipment of said car was in proper repair. We refer to these features of the ease because of the evidence introduced upon the trial respecting them and which it was the province and duty of the jury to consider in connection with the charge of negligence here made against said company. Indeed, as, we view the case, the determination of the above questions may have determined the action of the jury, and these questions being questions of fact, it was the province of the jury to pass upon them; and having passed upon them, we do not think that this court, as a reviewing court, under the evidence presented in said bill of exceptions, should disturb the finding of the jury.

As stated, we have read this entire record with no little care, and we think that the ease was fairly tried; that the rights of the defendant below were properly protected and eared for by the action of the court below in its charge to the jury; that said charge was exhaustive and fair to both parties; and taking it all in all we are of the opinion that the verdict of the jury is not unsupported by the evidence, nor against the manifest weight of the evidence, nor contrary to law; and furthermore, we are of the opinion that the action of said jury by their verdict, and the judgment of said court, express nothing further than the rendition of substantial justice between the parties hereto. In the trial of eases occupying no little time it is not uncommon for technical errors to intervene; but where all the evidence taken upon the trial, including the charge of the trial judge, is before a reviewing court and such court determines that under all the circumstances substantial justice has been done, the judgment will not be reversed for error in the charge of the court below. Way & Co. v. Langley, 15 O. S., 392; Baird v. Burton Telephone Co., 10 C.C.(N.S.), 163.

The judgment of the court of common pleas will be affirmed, at the costs of the plaintiff in error. Exceptions may be noted.


text:
    FRAUDULENT CONTRACT FOR. THE PURCHASE OF STANDING TIMBER.
    [Circuit Court of Lucas County.]
    Charles W. Isham et al v. Buckeye Stave Co.
    Decided, June 20, 1903.

      Parties — Misjoinder—Rescission of Contract for Sale of Standing Timber — Right of Action as Between Personal Representative and Devisees of the Land — Conversion.
    1. The right, of action- to declare void a contract, -whereby one now deceased sold certain standing timber at a grossly inadequate price, is in the personal representative of the decedent, and not in the devisees of the land from which the timber is being removed.
    2. As between the parties here concerned, the trees have been converted into personal property, and in the event of the purchaser being deprived of them in consequence of fraud in the contract of purchase, the trees would remain personal property as between the personal representative of the estate and the devisees of the land; and should the personal representative prosecute an action for rescission of the contract, he would be prosecuting it for the benefit of the personal estate, and not for the benefit of the devisees.

      Parker, J.; Hull, J., and Haynes, J., concur.
   This case is in this court on appeal. When the action was begun in the court of common pleas in March, 1902, the plaintiffs were Charles W. Isham, Sarah Isham, John W. Stebbins and John F. Isham, administrator with the will annexed of the estate of John G. Isham, deceased, and the defendant was The Buckeye Stave Company. To that petition a demurrer was filed in the court of common pleas on the grounds, (1) that there was a misjoinder of parties plaintiffs; (2) that several causes of action were improperly joined, and (3) that the petition did not state facts sufficient to constitute a cause of action.

The court below, in passing upon that demurrer, held that it was well taken and sustained it, on the ground that there was a misjoinder of parties plaintiff, and on the ground that it failed to state facts sufficient to constitute a cause of action. Thereupon an amended petition was filed, and from the amended petition Sarah Isham, and John F. Isham, as administrator, were dropped out. To this amended petition a demurrer was filed on the grounds that the plaintiffs, or either of them, had no legal capacity to bring the action, and also that the facts set forth in the amended petition did not, in law, constitute a cause of action in favor of the plaintiffs and against the defendants. That demurrer was overruled, and thereupon an answer was filed, and to the answer a reply was filed. The case was submitted to the court below upon the merits, and from the finding and judgment of that court an appeal was taken to this court.

In this court the defendant asked for and was granted leave to withdraw his answer, for the purpose of again presenting the questions raised by the demurrer to the amended petition. Upon the first presentation of these questions a majority of the court were so clearly of the opinion that the demurrer was not well taken that we resolved to proceed to trial upon the merits, reserving, however, a right to give this subject further consideration; and when the ease came to be finally submitted there was more argument heard upon the demurrer, and, after a full consideration of the matter, we are unanimously of the opinion ted to the court below upon its merits, and from the finding and that the court below erred in overruling the demurrer; and that this court was in error in proceeding upon its first impression. We hold that the demurrer must be sustained on the ground that the facts stated do not constitute a cause of action in favor of the plaintiffs and against the ■ defendant. I will read the averments of the petition:

“The defendant is, and at the time of the occurrences hereinafter set forth was, a corporation organized and existing under the laws of the state of Ohio, and has a place of business in the village of Waterville, Lucas county, Ohio.
“Plaintiffs says that on or about the sixth day of April, 1899, and during the lifetime of John G. Isham, deceased, he was and for a long time prior thereto had been the owner of a tract of land known and described as the west one-half of the southwest one-quarter of section No. 31, in the reservation of twelve miles square in Waterville township, Lucas county, Ohio; and that said land was covered with standing timber.
“Plaintiffs further say that on or about said sixth day of April, 1899, John Fraser, the duly authorized agent of the defendant company, called at the home of said John G. Isham, deceased, and with intent to deceive and defraud said John G. Isham, deceased, and for the purpose of inducing him to part with his said timber at a grossly inadequate price, represented to him that he, the said Fraser, was an expert in estimating the quantity of standing timber; that he was regularly employed by said defendant in buying standing timber and making said estimates ; that he had carefully gone over and examined the said piece of property above described, and the timber thereon, and that he estimated the said piece of timber land to contain 50,000 feet of timber, and that it would not contain more than 60,000 feet at the outside.
“Plaintiffs further say that said piece of land at said time instead of containing fifty or sixty thousand feet of timber as so fraudulently alleged and represented by said Fraser, contained about 200,000 feet of timber, all of which said Fraser then and there well knew to be true.
“Plaintiffs further say that said John G. Isham, deceased, at the time said false and fraudulent representations were made to him by said Fraser, as aforesaid, was, and for a long time prior thereto had been, an invalid, was sick and unable to leave the house, and in a weakened condition of mind and body, and that said Fraser well knew said facts to be true; that believing in the honesty and integrity of said Fraser, and being unable to personally examine into the truth of said statements so fraudulently made on account of his said illness, and not being' an expert in such matters himself, said John G. Isham, deceased, relied upon the statements and representations so fraudulently made by said Fraser, and so relying upon said statements and representations and believing them to be true, agreed to accept for said timber so standing on said land the sum of $425, and sold the same to the defendant for said sum.
“Plaintiffs further say that on the ninth day of June, 1901, said John G. Isham became deceased; that he continued to be an invalid from the said sixth day of April, 1899, up to the time of his death, and was unable to leave the house during said time; that prior to his death, the said John G. Isham, deceased, did not discover and had no means of discovering that said tract of land contained more timber than said Fraser had represented it to contain as aforesaid; that the plaintiffs are the heirs of said John G. Isham, deceased; and that he left a will, by the terms of which said land upon which said timber stands was devised in fee simple to the plaintiffs in the following proportions, subject to the life estate of Sarah Isham, the widow of said John G. Isham, deceased:
“To Charles "W. Isham the east one-half of the west one-half of the southwest one-quarter and the north one-half of the west one-half of the west one-half of the southwest one-quarter of said Section 31.
‘ ‘ To John W. Stebbins the south one-half of the west one-half of the west one-half of the southwest one-quarter of said Section 31.
“Plaintiffs further say that soon after said contract of sale was made the defendant entered upon and began to cut and remove said timber from said land, and that it has already cut and removed from said land about 82,000 feet of timber; that there still remains standing upon said land a much greater quantity of timber than has thus far been removed, and that said timber so remaining standing is partly upon the land of each of the plaintiffs; that said plaintiffs did not discover the aforesaid fraud of the defendant until after the said 82,000 feet of timber had been cut and removed; that neither of said plaintiffs is an expert in estimating the quantity of standing timber and had not the means of discovering said fraud until they had learned that said defendant had already removed from said premises a much greater quantity of timber than its said agent had as aforesaid represented it to contain; that on March 19, 1902, shortly after the discovery of said fraud, said plaintiffs tendered back to said defendant in legal tender money of the United States the said sum of $425 paid by it for said, timber, and notified said defendant that they elected to rescind said contract on account of said fraud, and demanded of it that it surrender its said contract of sale and return to them the timber removed from said premises by virtue of said contract, or account to them for the value thereof; and that said defendant refused to accept said sum of $425 and surrender its said .contract and return said timber or account to plaintiffs for the value thereof.
“Wherefore, plaintiffs pray the court for a preliminary injunction enjoining and restraining the defendant from cutting or removing any more of said timber, and that on the final hearing hereof the said injunction may be made perpetual; that the said contract for the sale of said timber be declared to be void and of no effect, and for all other proper relief.1 ’

Plaintiffs say that John G-. Isham, in his lifetime, did not discover that this alleged fraud had been perpetrated; that is the only additional allegation of the amended petition, so far as we can discover, which seems to be very material.

Now the contention of counsel for the defendant is that the right to bring and prosecute this action is not in the devisees of this land; that if such fraud as is alleged was perpetrated so that a right of action arose, it is a right of action devolving upon the personal representatives of John Gr. Isham.

Plaintiffs, hoAvever, insist that it is a matter affecting the lands of which they are the owners, and that the right of action under this contract for the removal of the timber from these lands, Avhich have been devised to them, survives to them, and that, because of their interest in the land, the taking of this timber from the land affects the value of the land, and that therefore they have a right, by injunction, to require that no more of the timber shall be removed; that the result thereof will be that the value of the land will not be diminished by the removal of any more of the timber they have succeeded to; that the value of the timber Avill remain, the standing timber, as part of the value of their property — part of their property. There is no averment in the petition or amended petition, I might say in passing, that the removal of this timber Avould affect the value of the land. For aught that appears, either by averment or proof, the value of the land Avould be increased by the removal of the timber; that is to say, the clearing of the land would be worth more to it than the preservation of the timber standing. But that is a matter that might be changed or corrected by further averment and proof. The objection insisted upon goes to the very bottom of the matter; it strikes at the root. If plaintiffs can maintain any action at all, of any character, it must be on the ground of the alleged fraud.

Now it is evident that the right to sue can not be in both the devisees and personal representatives, they being different persons; that fact appears to have been recognized by the court of common pleas, and so the demurrer to the original petition on account of misjoinder of parties was sustained. Thereupon, as I have said, the personal representatives were dropped out of the ease and these plaintiffs undertook to prosecute it. In our judgment the court below was right in sustaining this demurrer on account of misjoinder. But the parties made a mistake in dropping out the personal representatives and retaining the devisees under this will, instead of dropping out the devisees and retaining the personal representatives. If such fraud as is here averred was perpetrated, it was a fraud upon John G. Isham, and it resulted in a cause of action in favor of John G. Isham to recover damages on account of the fraud; and, no doubt also, a cause of action, if he chose to pursue it, to obtain- a rescission of the contract. On the other hand, even though the fraud may have been perpetrated, and John G. Isham may have discovered it, it was within his power and his right to waive it and still insist upon the performance of the contract. But as I have said, this amended petition contains the averment that John G. Isham in his lifetime did not discover the fraud. Upon that I may say, however, there is no evidence submitted, except perhaps the single circumstance that John G. Isham was an invalid from the time this contract was made up to the time of his death. Notwithstanding that, however, he may have discovered this fraud and may have waived it after he had discovered it. There is no evidence that he did not. But that is not important to the main question that we are considering, i. e., whether a cause of action survives to the devisees.

Now these devisees, as we view the matter, stand in precisely the same relation to this contract that the grantees of John G. Isham, taking by deed of gift or with knowledge of this contract, would have stood. If timber were in fact standing, under this contract the purchaser thereof would have the right to remove it. Such grantees could not hold it. The devisees are not in a position to complain that enough was not paid for this timber; whether too little or too much was paid or promised for this timber is of no consequence to them.

They acquired no right to any part or share in the consideration paid or promised. Both that paid and that promised, or that due by virtue of the fact that there was deceit, and enough was not paid, wherefore the seller might be entitled to more, was due to the seller, and upon his decease became due to his personal representative, not to the devisees; they were bound to take this land, as I have said, without the timber, and it was a matter of no consequence whatever to them whether half the price of the timber had been paid or promised, or double the price of the timber had been paid or promised. It is averred in the amended petition that they are heirs as well as devisees; but that does not change their standing as plaintiffs here; their standing as heirs would be the same.

The right under this contract to have compensation for the timber, either the compensation promised or further compensation or damages by reason of fraud, was a personal right. It was a chose in action which went, under the law, to the personal representative of John G. Isham. It was the right, as I have said, of John G. Isham in his lifetime to waive the fraud and insist upon the performance of the contract. The same right survived to the administrator. We may suppose that the administrator is content with this contract. We may suppose that he is content to keep this $425, and allow the timber to be taken. What right have the devisees to object to that? What right have they to insist that instead of $425 the personal representative shall have $850, or some other sum; or that he shall have the timber ? Clearly the timber can not go to the devisees. Under the doctrine of equitable conversion, if the devisees should prevail in this case, the timber would not go to them; it would go to the personal representative. Upon that doctrine I may make some further comment and cite some authorities farther on. We may suppose a situation of this kind — a promise to pay for this timber in installments as it is taken, say one-half down and one-half at another time; part of the timber has been taken during the lifetime of John G. Isham; part of it is now due to be taken and paid for; the administrator or personal representative is content that the timber shall be taken and the price paid; but the devisees stubbornly say, “No, there was a fraud perpetrated upon our devisor; he did not get, and therefore his personal estate has not received as much for this timber as ought to have been paid for it; therefore we shall object.” We conceive it is not within the power; it is not the right of the devisees to make this objection; that the personal representative has a right to insist that the contract shall be fulfilled; that the timber shall be taken and the price paid for it. The personal representative may not care to interfere. The same result would follow if the timber were to be taken and paid for at so much a thousand as removed. Various illustrations might be given to show the inconsistency of the position of these devisees here. It is made manifest by the attempt made by the devisees to place the purchaser in statu quo, so that the right to rescind might be perfected. The devisees undertook to restore to the purchaser by tendering the $425 paid for this timber. If they have never received it, it is not theirs to restore. What they are attempting to do is to interfere here and pay $425 of their own money to thereby effect this object. The $425 received is personal property in the hands of the personal representative. It is not the personal representative who is here seeking to place the purchaser of the timber in statu quo by surrendering the same, but those who, we conceive, have no right in this contract.

Suppose a situation of this kind — that the purchaser were complaining that he had not received as much timber as he had contracted for; that a fraud had been perpetrated upon him; against whom would he bring his action? Can he bring it against these devisees? Clearly not. If a cause of action survives to the purchaser of the timber as against the estate, it would survive against the personal representative as a personal obligation. There were no contractural relations between the purchaser of the timber and these devisees; no contractural obligations, and it is clearly manifest that if an action on the one hand must be made by the purchaser against the personal representative, the action on the other hand must be by the personal representative against the purchaser. We think a fair test of that proposition is found in the fact that if the plaintiffs here should prevail, that would not bar the right of action of the personal representative- to sue for damages oh account of this alleged fraud. In other words, the devisees, claiming under this will, by beginning an action of this character, even though they may have begun it first, even though they may have been fore-handed in the matter, can not deprive the personal representative of the chose in action or of his right to recover damages on account of the fraud perpetrated upon the decedent. And we think the right to rescind is necessarily in the party having a beneficial interest adverse to the interests of the purchaser of the timber; the party therefore who may waive the fraud; the party therefore who may prosecute an action for damages instead of an action for rescission.

It may be thought, and has been suggested, that if an action of rescission were prosecuted by the personal representative, and he should prevail, the benefit would resuit to the owners of this land, in that it would preserve this timber upon their land; that they would become the owners of the standing timber. We do not think this is so. By this contract there has been an equitable conversion of this timber into personal property, and if this contract should be rescinded, the right to the timber would be restored to the personal representative, and as between the personal representative and the devisees, the former would have a right to go upon this land and take this timber. If the personal representative should prosecute an action of this character, he would be prosecuting it for the benefit of the personal estate and not for the benefit of the devisees. Upon this doctrine of equitable conversion I will cite 1 Pomeroy, Eq. Jurisp., Sections 161 and 371, and 3 Pomeroy, Eq. Jurisp., Section 1159.

“The doctrine of ‘conversion’ is a particular application of the principle that equity regards as done what ought to be done. The doctrine itself was thus stated by an eminent English equity judge in the leading case upon the subject: ‘Nothing is better settled than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted; and this, in whatever manner the direction is given, whether by will, by way of contract, marriage articles, settlement or otherwise; and whether the money is actually deposited or only covenanted to be paid, whether the land is actually conveyed or only agreed to be conveyed, the owner of the fund, or the contracting parties, may make land money, or money land. The eases establish this rule universally.’ ”

Much more may it be said of property, like trees, which may be severed from the land and made personal property by a contract. "We hold that, as between these parties, the trees would be and were converted into personal property, so that, if the purchaser of these trees should be deprived of them in consequence of fraud in the contract, they would remain personal property as between the personal representative of the estate and the devisees under the will.

I read from 1 Pomeroy, Eq. Jurisp., Section 371:

“One of the most direct and evident results of the principle is the equitable property which arises from the doctrine of conversion — when real estate is treated by equity as personal property, or personal estate as real property; land as money, or money as land — ‘nothing is better established than this principle that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted; and this in whatever manner the direction is given, whether by will, by way of contract, marriage articles, settlement or otherwise, or whether the money is actually deposited, or only covenanted to be paid; whether the land is actually conveyed, or only agreed to be conveyed; the owner of the fund or the contracting parties may make land money or money land.’ A conversion may thus take place where, by a will, a deed or family settlement, land is actually assigned to the trustees, with directions in the one ease to sell the land and pay over the proceeds to the beneficiary, and in the other to invest the fund in the purchase of the land to be then conveyed to him; or it may, in like manner, take place where, by marriage articles or other executory agreement, land is covenanted to be conveyed, or money is covenanted to be assigned, in like manner and for like purposes. The effect of the conversion is a direct consequence of the principle in question. Personal estate becomes, to all intents and purposes, in the view of equity, real, and real estate personal. Money directed to be invested in land descends to the heir of the original beneficiary or passes under a general description of real property in his will, while land directed to be converted into money goes to his personal representatives, or is included in a residuary bequest of his ‘personal property.’ These are some of the incidents of a conversion, and are sufficient at present to illustrate its nature and results.”

There is considerable more in this work on this subject and a good many cases cited. Of course this is not a point we are called upon to decide here, but we mention it and discuss it as an illustration of the situation of the parties.

Now, in support of the contention on behalf of the plaintiffs that the right survives to the devisees, we are cited to certain authorities; but they consist of eases where the question arose as to whether the right to set aside a conveyance of the land had survived to the devisees; the questions were not so much as to who could enforce the right of action, as whether it actually survived; and it was decided in those cases that it not only survived, in equity at least, but that it survived to the devisees. But those cases we regard as very different from the case at bar. There the whole equitable interest of the devisor in the land was devised; there was no equitable conversion; there could have been no question as to the right of the personal representative. The land being recovered in a case of that character, would necessarily, be the land of the devisees or the heirs, as the case might be. I cite a case somewhat in point, decided not a great while ago by Judge Wildman of the Common Pleas Court of Huron County, Ohio. It is the case of Stang v. Newberger, 6 N. P., 60:

“The plaintiffs allege substantially that they are the sole beneficiaries under the will of Peter A. Stang, who died in June, 1895, seized in fee simple of certain realty described; that during the lifetime of said decedent he had contracted with Magdalena Newberger, one of the defendants, to convey to her said realty for $2,785, payable in installments as evidenced by certain promissory notes; and that said vendee had paid to said decedent something over $160, and defaulted as to the residue of the purchase price, as well as to certain other stipulations.”

Now the plaintiffs undertook to tender back the notes and so much of the purchase price as had been paid, and' sought to set aside and rescind the contract, and recover possession of the premises. A demurrer to the petition was sustained on the ground that the right of action was in the personal representative ; there are other questions discussed in the case, but I will read from the opinion upon this particular question. The court says on page 63:

“The plaintiffs sue upon the presumption that they own the land and have a right to remove clouds from their title. But have they any other than a naked legal title, as trustees for the equitable owners?
1 ‘ I find no lack of uniformity in the expressions of the courts and text-writers that in this class of eases the doctrine of equitable conversion applies and governs the descent of the estate. By this phrase is meant that doctrine or legal fiction under which, for some purposes, land is deemed personalty and personalty land. Thus, as stated in 8 Sugden, Vendors (8th Am. Ed.) n. 188:
“ ‘When an estate is contracted to be sold, it is in equity considered as converted into personalty from the time of the contract,’ etc.
“This language received the approval of Judge Johnson, in Gilbert v. Port, 28 Ohio St., 276, 298, 299, who says, after quoting Mi’. Sugden’s words:
“ ‘The learned author is discussing the effect of a devise of real estate on lands contracted to be sold and not conveyed.’
“The doctrine finds further recognition and approval in Smith v. Lowenstein, 50 Ohio St., 346, 357, to which I refer without quoting.
“A more elaborate elucidation of equitable conversion may be found in Pomeroy’s admirable work on Equitable Jurisprudence. See especially Vol. 1, Sections 105, 368, and note on page 403; and Vol. 3, Section 1261. It is distinctly asserted by the author that the vendor’s interest in the contract to sell real estate is personal, and upon his death will descend, not to his heirs or devisees, but to his personal representatives. It is clearly indicated also that in case of payment of purchase money by the vendee to such heirs or devisees, the money belongs and should be paid to the personal representative.

Ashton H. Golclham and Wilber A. Given, for plaintiffs.

J. 3. Moore, for .defendant.

“Mr. Sugden (Vendors & Purchasers [9th Ed.] n., s.tar paging 172) says the same:
“ ‘If the vendor die before payment of the purchase money, it will go to his executors, and form part of his assets. ’
“Assuming this doctrine, which seems well settled, to be correct, does it leave any right in the devisees to a rescission of the contract? At the best they would seem-to have received from their ancestors only a naked, legal title to land, while all other rights and interests of Peter A. Stang under the contract descended to the representatives of his personal estate.
“Under proper circumstances a right of election to rescind or affirm a land contract for default of the vendee resides in the vendor. He may elect to sue for the purchase money or endeavor to reclaim the land. At his death this right of election is entirely extinguished or descends to either his personal representative or to his heirs or devisees. It is inconceivable that it can take both directions. If, as asserted by Mr. Pomeroy and Mr. Sugden, and recognized by our own Supreme Court, the estate of the vendor in the land became personalty by conversion, then as such it descended, and the right of election to affirm or disaffirm the contract descended with it. The executor or administrator acquired the right of the vendor to sue for the unpaid purchase money, or at his election to rescind the sale and recover the land. The land, when so recovered by the personal representative, would logically be treated as personalty in the distribution'of the decedent’s estate. To hold otherwise and permit the’ devisees to rescind the sale would either rob the personal estate of one of its assets, its chose in action for the unpaid purchase money, or subject the vendee both to the loss of the land and to a possible judgment on the notes in favor of the executor or administrator, an inequity which, of course, is not to be thought of.”

We have no question but this cause of action survived, but in our judgment it is clear that it survived to the personal representative and not to the devisees. Therefore the demurrer to the amended petition will be sustained. The petition will be dismissed, and there will be judgment entered against the plaintiffs for costs.


text:
    TAXES LEVIED UNDER. A SPECIAL STATUTE.
    [Circuit Court of Franklin County.]
    Ellis O. Jones, a Tax-payer, etc., v. The Board of County Commissioners, Franklin County, Ohio, et al.
    Decided, November 23, 1903.
    1. Whether Section 2823a, relating to the levying of taxes for certain purposes, and applicable to Franklin county, was inconsistent with the provisions of the Municipal Code of 1902 is a matter of opinion, and one ás to which members of the Legislature may have held different views, but that, after consideration, a conclusion to repeal this section was reached, there seems to be no reason'to doubt, and hence it can not be said that its repeal was through inadvertance or mistake.

      Taxation — Levies for County and Bridge Purposes under Section"2823 —Reduction of other Levies — Section 2823a not Repealed hy Mistake.

    2. Section 2823a having been repealed, the commissioners of Franklin county were limited in the making of tax levies in the year 1903 for county and bridge purposes to the authority found in Section 2823.
    Sullivan, J.; Summers, J., and Wilson, J., concur.
    Heard on appeal.
   Omitting the averments of the petition setting forth the official capacity of the several defendants and proceeding at once to state the substance of the several averments upon which plaintiff claims the relief he prays for, upon behalf of himself and other tax-payers of Franklin county, Ohio, which are as follows:

First, that the population of Franklin county on the 3d of June, 1903, was 164,000.

That the tax valuation of all property of said county was more than $80,000,000, and less than $100,000,000, being about $90,000,000.

That said county commissioners on said date made a tax levy of 5 mills and 85 hundredths on the taxable value of all property in Franklin county, by the adoption of a resolution by said board, one-balf of the tax to be paid December 20th, 1903, and the last half June 20th, 1904, and in which was included levies for the following purposes:

1st. Two and four-tenths mills, county purposes.

2d. One and four-tenths mills, bridge fund.

3d. One and forty-five one-hundredths mills, payment of bonds and interest.

That the foregoing, together with other levies for the various purposes designated in the resolution, made the total 5 85-100 mills upon all the taxable property of Franklin county, for the fiscal year of 1903. No other levies were made for said year.

It is averred that the defendant county auditor is preparing a tax duplicate for Franklin county, and that he will make up a complete list of all taxable property in said county in the form of a tax duplicate, and under said resolution levy upon all such property said 5 85-100 mills, and will determine the amount of taxes which may be assessed and levied against each dollar of valution of such taxable property including plaintiff’s, thereby casting a cloud upon the title to all of said taxable property, and when complete will deliver said duplicate to the defendant county treasurer for collection, who will proceed to collect the same. Whereby the plaintiff and all other tax-payers of said county will suffer an irreparable injury.

It is averred that said levy was made under Section 2823a of the Revised Statutes of Ohio. That said levy is illegal, unconstitutional, fraudulent and void, for the following reasons:

1st. Because the section under which said levy was made was repealed by the General Assembly of Ohio on October 22d, 1902.

2d. That said section was a special act relating alone to Franklin county, and hence in contravention of Section 26, Article II; Section 1, Article XY; Section 5, Article X; Section 5, Article XII of the Constitution of the state, because said act conferred corporate power, and the subject of taxation is of a general nature, and said section is not legislative, but judicial and administrative; that the several items of said levy herein-before set forth exceed the authority of the statutes in force at the time the same was made, no emergency existing at the time.

Plaintiff therefore prays that said auditor be enjoined from making- the duplicate as above described and delivering same to the county treasurer, and the latter be enjoined from collecting said illegal levy, or so much thereof as may be in excess of the power of the county commissioners to make; that said excessive levies may be declared to be illegal, and void, and for such other and further relief that plaintiff and other tax-payers upon the facts shown may be entitled to; and upon the final hearing that said injunction to the extent of said excess might be made perpetual.

The petition in effect assails the entire levy, but as counsel for plaintiff in argument insisted upon such relief as might be granted should it relate only to and affect the three several items above stated, they have alone been considered. To this petition a general demurrer is filed. Counsel for defendant concede that no levy can be made by the commissioners not authorized by express statute, so that the inquiry is whether the statutes in force at the time the levy was made authorized the amount of levies made for the several purposes above mentioned.

In support of the demurrer, counsel for defendants insist that 2823a, under which said levies were made, is not repealed by the act of October 22d, 1902, though it appears among the repealed sections, for that it is manifest from the title of the act of October, 1902, that its appearance in the list of repealed statutes is a mistake. The title of the act of October 22d, 1902, reads as follows:

“An act to provide for a reorganization of cities and incorporated villages, and restrict their power of taxation, borrowing money, contracting debts and loaning their credit, so as to prevent an abuse of said powers as required by the Constitution of Ohio, and to repeal all statutes inconsistent herewith. ’ ’

There are 231 sections contained in the act, each section representing a different subject in municipal affairs, and counsel for defendants contend that Section 2823a neither relates to or affects any affair pertaining to municipalities, and therefore is not inconsistent with any of the provisions of the act of October 22, 1902, and hence furnishes an additional fact in support of their claim, that the repeal of 2823a was a mistake; that Section 2823a bore no relation to the conditions, which the General Assembly ought to relieve, but related solely to the. power of County Commissioners of Franklin County to levy a tax and apportion the same, and therefore is not inconsistent with any provision of October 22d, 1902. Hence it can not be said it was included in the title to the latter act.

We have had a judicial construction of Section 16, Article II, of the Constitution, which provides “that no bill shall contain more than one subject, which shall be clearly expressed in the title.” It is only necessary to call attenton to one case as that fully amplifies the judicial construction given the section and. the recognized reason for such construction. Ohio, ex rel Atty. Genl., v. Covington et al, 29 O. St., 102:

“The requirement of the section is not mandatory, but directory — this construction is a rule of decision and based upon grounds of expediency. It is amply recognized by all courts of law and the reason of the rule is that less injury results by disregarding than by enforcing the letter of the law.”

So that if Section 2823a was not inconsistent with any of the provisions of the act of October 22d, 1902, the fact that the intention to repeal it was not expressed in the title of the bill eould not be considered as supporting the claim that its appeal was a mistake. The power of the legislative body to repeal an' act must be conceded, though no reason be assigned for the repeal, or if one is given, and it appears wholly insufficient, the repeal is still just as effective. We think therefore, though said section may not fall within the class of those inconsistent with the act of October 22d, 1902, yet that fact could not be sufficient to supply the requirement of the rule observed by courts in correcting .mistakes in statutes, which is as follows: . .

“The claimed * * * errors must., be ..manifest, beyond doubt, either on the face of the act, or when read in connection with other statutes, in pari materia,” (State, ex rel, v. Archibald, 52 Ohio State, p. 9).

Section 2823a is repealed by reciting the full substance of the section, which alone would seem a sufficient answer to defendants’ claim that its repeal was a mistake, and a sufficient reason-for the court declining to consider the question, whether the act was not inconsistent with any of the provisions of the act of October 22d, 1902. But can it be said that it is not inconsistent ?

Under Section 860, of the Revised Statutes, the city of Columbus is not entitled to demand any part of the bridge fund levied by the county commissioners arising from the levy upon the taxable property of the city. Section 7, paragraph 18 of the act of October 22d, 1902, confers power upon council to control, improve, keep in order and repair, streets, bridges, etc., within the municipality, and Section 28 provides that council shall have the care, supervision and control of public highways, bridges within the city, and shall keep them in repair; and Section 9 authorizes a levy for such purposes. It would seem from these several sections of the code that repair of bridges and public roads and perhaps construction of same, within the city limits and raising funds for such purposes, was to be transferred to the municipality, and if so, to this extent at least, 2823a would be inconsistent with the provisions of the code cited.

Paragraph 18 of Section 7 of the code expresses no distinction as to bridges already constructed and those constructed after the code went into effect, so that it would seem that the entire burden at least of keeping such structures in repair within municipalities would rest alone upon them. Whether 2823a is inconsistent with any of the provisions of the code would be a matter of judgment alone and a question upon which perhaps there might appear strong reasons for a difference of opinion between members of the legislative body, but that a conclusion to repeal it was reached after a consideration of the section there seems no reason for doubt, and hence the repeal was not through inadvertence or mistake.

This brings us then to the next question. If 2823a was repealed, what, if any, authority did the commissioners then have to levy a tax for the several purposes contained in the resolution-of June 3d, 1903? Section 2823a and the amendment thereto of April, 1902, was a supplementary act to 2823, and it provided that no levies specifically authorized by statutes should be included within the limits fixed in the supplementary act, and therefore it did not repeal 2823. By the latter section they are authorized to levy for county purposes seven-tenths of a mill, and for bridges, under 2824, five-tenths of a mill, and Section 2823 provides that whenever in any county the levy provided for in the first section of 2823 is deemed insufficient for general county purposes the commissioners may increase said levy by any amount not exceeding six-tenths- of a mill on the dollar valuation, but in such cases the levies for other purposes shall be reduced to the same extent, or that the total levies for all purposes shall not exceed the limits provided in the title and chapter in which said sections appear. The limit for all purposes in the chapter is one and eight-tenths mills, except where it became necessary to levy an additional tax to repair or rebuild county infirmary buildings, children’s home buildings, etc., that may have been destroyed by fire or other casualty, and then the amount raised should not exceed $10,000.

The one and eight-tenths mills is divided as follows: County purposes, seven-tenths of a mill; infirmary purposes, six-tenths of a mill; bridge purposes, five-tenths of a mill.

Counsel for plaintiff contend that when the commissioners levy six-tenths of a mill provided for by Section 2823, because the levy of seven-tenths of a mill is insufficient for general county purposes, and made levies for any other purpose provided for by 2823 and 2824, that to the extent of six-tenths of a mill such levies must be reduced, and that the commissioners not having made any other levy under chapter 5 but for county general expense fund and bridge fund, therefore a reduction should be made in the bridge fund. We do not so understand these sections of the statute.

Under Section 2823, commissioners are authorized to levy for infirmary purposes six-tenths of a mill. They did not make such levy in this instance, and the levy for county purposes and the bridge fund and the six-tenths of a mill provided for in the concluding provision of Section 2823 did not exceed the amount of levy the commissioners were authorized to make. We understand that the purpose of the provision in Section 2823, providing for the reduction of other levies when seven-tenths of a mill for county purposes has been made and the commissioners should levy the six-tenths of a mill in addition, is to prevent the county commissioners from exceeding the limit of the levy for all purposes provided for in Chapter 5. Therefore the commissioners were authorized to levy for county purposes one and three-tenths of a mill, and for bridge purposes five-tenths of a mill, to which rate these two several levies will be reduced.

M. E. Thraillcill, for plaintiff.

Taylor, Seymour & Webber, for defendant.

Counsel for plaintiff contend that the levy of one and forty-five one-hundredths mills for the bond redemption fund will yield a sum largely in excess of that required to pay the maturing bonds and interest thereon maturing in the year 1904. He claims that the estimate made by the county commissioners, including interest and the amount of such bonds, is $113,530, but that the levy made will yield a sum of over $130,500.

The petition does not set forth the amount of the maturing bonds of 1904, and the accruing interest thereon; and as the questions presented here are on a general demurrer to the petition, and as to whether the amount claimed by plaintiff is correct, being a question of fact, the court in considering the general demurrer to the petition can not pass upon that question.

We are therefore of the opinion that the judgment of the court below upon the demurrer was correct, and the same judgment will be entered here at defendant’s costs. In view of these conclusions, the claim that Section 2823a was unconstitutional becomes wholly immaterial and therefore unnecessary to be determined.