text:
    INCONVENIENCE TO PROPERTY OWNER. FROM THE BUILDING OF A VIADUCT.
    Court of Appeals of Cuyahoga County.
    Oscar Schmidt v. The City of Cleveland.
    Decided, January 13, 1913.

      Municipal Corporations — City Not Liable in Damages to Non-Abutting Owner — For Slight Inconvenience Resulting from Elimination of Grade Crossing — Inconvenience Different in Kind But Not in Degree from that Suffered by the General Public — Reasonable Menas of Access.

    Plaintiff’s property is 120 feet front and abuts upon the east side of 83d street, in the city of Cleveland; the middle point of his land is 234 feet northerly from the north line of Kinsman road, which is a main thoroughfare running east and west; Kinsman road has been obstructed at its intersection with 83d street, by the erection of a viaduct 16 feet above the grade of 83d street, and reached from it only by a flight of 31 steps; by going around a block to 82d street, which is parallel to and west of 83d street, the surface of the viaduct can be, reached without climbing steps, but this course is 473 feet long from the middle point in plaintiffs land; this' is the extent of the impairment of access from Kinsman road to plaintiffs premises, by the building of said viaduct. Held: Plaintiff is not entitled to damages.

      Glum, Marty, for plaintiff in error.

      E. W. Wilcox and Squire, Sanders & Dempsey, contra.
    Wincii, J.; Marvin, J., and Meals, J., concur.
    Error to the court of common pleas.
   The error complained of in this case is the direction of a verdict for the defendant at the close of plaintiff’s evidence.

The plaintiff prayed damages for the obstruction of the southerly end' of 83d street, in the city of Cleveland, by the building of a viaduct on Kinsman road, part of a grade crossing elimination improvement in that neighborhood.

Plaintiff owns three forty foot lots on the easterly side of 83d street, which street starts at Kinsman road, runs northerly therefrom and crosses other streets running east and west. Upon these three lots are two dwelling-houses, in one of which plaintiff resides; the other he rents.

Kinsman road is one of the main east and west thoroughfares in that part of the city of Cleveland; upon it the city cars as well as suburban cars run, westerly to the business portion of the city, and easterly to villages beyond the city limits.

The viaduct referred to is sixteen feet above the former grade of the street; a substantial abutment across Kinsman road, at the west line of 83d street, shuts it off to the west, but one can pass to the east, under the viaduct, to 83d street, where a like abutment at the east line of 84th street, ‘shuts off travel to the east.

The surface of the viaduct at 83d street may be reached by a flight of 31 steps. About 320 feet north of Kinsman road, Glade street opens up, on the west line of 83d street, runs westerly, but inclining toward Kinsman road, for a distance of 221 feet to 82d street, and the latter street, which is parallel to 83d street, runs to the surface of the viaduct of Kinsman road, a distance of 116 feet.

Before the viaduct was built, plaintiff could go southerly to Kinsman road and take the cars on the surface, either east or west, by traveling a distance of 234 feet from the middle point of his land; now, to reach the surface of Kinsman road viaduct, from the same point, he must travel northerly 86 feet on 83d street, cross the 50 feet of that street, travel westerly 221 feet on Glade street and then southerly 116 feet on 82d street, in all a distance of 473 feet, practically twice as far as he had to go before.

Traveling at the rate of 4 miles an hour, one goes about 6 feet a second, so that it now takes plaintiff about 40 seconds longer to reach the cars on Kinsman road than it formerly took. One minute longer, at a slow walk, would be a fair way of estimating

This is the extent of the impairment of access from Kinsman road to plaintiff’s property, by the building of.the viaduct, as shown by the evidence.

Prom a full consideration of the eases in Ohio bearing upon the law applicable to such cases, Judge Donahue, in the case of Hall v. Railway Co., 85 O. S., 148, at page 157, concludes:

• “It would, therefore, seem to be fully settled in Ohio that whether property abuts upon that particular portion of the obstructed or vacated street, yet if that street affords the only reasonable access to the property, the owner’s rights are the same as if his property actually abutted upon the obstructed parts, but where his property is not physically in contact with the vacated portion of the street and he has other reasonable means of access, then the owner has no right of action to enjoin the obstruction or recover damages.”

In the Hall ease and in the ease of The Cleveland Furnace Cov. The South Shore Railway Co., 9 N.P.(N.S.), 426, affirmed by the Supreme Court without report, the street obstructed was the only reasonable means of access to the plaintiff’s property. Such is not the case here.

In the case of Kinnear Mfg. Co. v. Beatty, 65 O. S., 264, the court held that the proprietor of property not abutting upon that portion of the street obstructed or vacated, would not be entitled to any relief unless the inconvenience he suffers differs in kind, and not in degree, from that of the general public. On the facts of that case, as well as in the case of Anderson v. City of Cleveland, No. 3983 on the docket of the Circuit Court of Cuyahoga County, affirmed without report, 79 O. S., 451, relief was denied the plaintiff because his inconvenience was different only in degree and not in kind from that suffered by the general public. An examination of the plat filed in the Anderson case shows a situation very similar to the situation shown by the plat in this case.

In the case of Schimmelmann v. Railway Co., 83 O. S., 357, the facts show a vacation or obstruction of pax't of the street in front of plaintiff’s premises, but not on his- side of the street, as was the case also in Cohn v. City of Cleveland, 43 O. S., 190, and in both cases damages were allowed the plaintiff. In both of these cases, as well as in the case of Cesa v. City of Cleveland, No. 4633 Circuit Court, which went up from Cuyahoga county and was recently revei’sed by the Supreme Court, the plaintiff’s prexnises were occupied for business purposes, and the evidence texxded to show that the obstrxxction of the street diverted travel and business away from plaintiff’s place of business, causing the business theretofore done there to locate in axxother part of the municipality, thus greatly reducing the value of plaintiff’s premises. One of the questions in the Schimmelmaxxn case, as stated by' Judge Price on page 371, was:

“Did the change in the street impair access- to plaintiff’s improvements — not their own access necessarily, but having business structures there — access by people accustomed to trade and transact business with plaintiffs?”

Such is not a question here; plaintiff is not engaged in any bxxsixxess on his premises, which is injured by making more difficxxlt the access of customers to his place of bus-ixiess.

In the Anderson case the plaintiff used his premises for manufacturing purposes, bxxt there was no evidence that the public came frequently to his place of business- or that he lost trade.by reasoxi of the obstruction ixi the street to the north of him; his sole complaint was that his wagons had to travel a little farther in delivering maixufactured goods to railroad depots and other places to the east of him.

We find no facts in this case sixxxilar to the facts in other cases where relief was granted the plaintiff, either because the only reasonable means of access to his property was obstructed, or because his inconvenience from the obstruction was different in kind and not in degree, from that of the geixeral public.

The trial court properly took this view of the case and directed a verdict for the defendant, and its judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    TITLE UNDER. A DEVISE TO DEVISEE AND HEIRS.
    Court of Appeals of Richland County.
    Ida C. Zackman and J. B. Zackman v. James M. Dick.
    Decided, January, 1913.

      Specific Performance — Action to Enforce — Lack of Title Set up as a Defense — Construction of Clause in Will Devising the Land in Question — Evidence—Words and Phrases.

    1. In construing a clause in a will testimony by the scrivener as to instructions given him by the testator at the time the will was written, or as to what the testator said at that time regarding his intention in the disposition of his property, is wholly incompetent.
    2. Where an absolute estate in land has been conveyed to Z and her “heirs,” it can not be reduced to a life estate by a construction of a subsequent clause which would make the word “heirs” read “children,” unless the clause placing a limitation on the estate is as clear and unequivocal as the clause making the grant of a fee simple title.
    Voorhees, J.: Shields, J., and Marriott, J., concur.
   Tbe plaintiffs’ action was brought in the court of common pleas of this county to enforce .the specific performance of a contract in writing for the sale of real estate', wherein the plaintiffs, Ida C. Zackman and J. B. Zackman, entered into a written contract with the defendant, James M. Dick, to sell to said James M. Dick eighty acres of land in Franklin township, Richland county, Ohio, which land had come to her as one of the heirs of John Crum, deceased. This contract was entered into between said Ida C. Zackman and James M. Dick on the second day of February, 1911. The substance of the contract- was that said Dick should pay for said land the sum of $7,000; $100 to be paid cash in hand and the balance, $6,900, on or before the first day of April, 1911.

Under and by virtue of said contract, defendant Dick agreed to pay said balance of the purchase money, to-wit, $6,900, on or before April 1, 1911, and upon the payment of the same the plaintiffs agreed to deliver unto the said James M. Dick or to his heirs or assigns a general warranty deed and abstract of title of the real estate so sold with covenants and warranties against all dower rights and other incumbrances, said deed to be delivered on or before the first day of April, 1911.

Defendant James M. Dick paid of said consideration the sum of $100; but neglected and refused to pay the balance of said purchase money. On said first day of April, 1911, the plaintiffs tendered to defendant a general warranty deed and abstract of title of the 'real estate so sold with covenants and warranties against all dower rights and other incumbrances, but the "defendant refused to pay the purchase money so agreed upon by him to be paid in said contract and to perform the terms and stipulations of said contract upon.his part to be performed.

The plaintiffs performed all the conditions of said contract to be performed by them prior to the first day of April, 1911, but the defendant failed and refused to carry out said contract upon his part. The plaintiffs executed' and tendered to the defendant a deed and abstract of title according to said contract and demanded the payment of the purchase money with interest.

The object and purpose of said action brought by said plaintiffs was to enforce the specific performance on the part of said defendant of said contract and the payment of the consideration agreed upon therein; and that the defendant be required to pay interest on the balance of said consideration from the-first day of April, 19.11.

The defendant, James M. Dick, filed an amended answer to said petition, wherein he admits that upon the second day of February, 1911, he signed a paper writing according to the terms of which he agreed to purchase the premises described in plaintiff’s petition from the said plaintiffs; that by the terms of said paper writing plaintiffs agreed to convey said premises in fee simple by deed of general warranty in consideration of the sum of-$7',000, of which $100 was to be paid in cash and the balance on or before the first day of April, 1911; that on thejdaypf the signing of the said paper writing he paid the plaintiffs the sum of $100 as part payment of the consideration of said premises; defendant further admits that by the terms of said paper writing plaintiffs were to deliver to him, on or before the first of April, 1911, a general warranty deed and abstract of title of the real estate aforesaid, with covenants and warranties against all dower rights and other incumbrances. He denies each and every other allegation contained in plaintiffs’ petition not therein expressly admitted to be true.

By way of cross-petition he avers that he signed the paper writing set forth in plaintiff’s petition upon the representations of the plaintiffs that they were the owners in fee simple of the premises described in the petition, and that they agreed in said paper writing to convey to him a fee simple title for the premises described in the petition. He avers that at the time he executed said paper writing he paid to the plaintiffs the sum of $100, part consideration of the premises, but that at the time of said payment said Ida C. Zaekman was not the owner in fee simple of the premises described in the petition, which fact was unknown to the defendant at that time. The plaintiffs, on the first day of April, 1911, and at all times prior thereto and since, have been unable to comply with the terms of said paper writing, not being the owners of said premises in fee simple, and are now unable to convey a fee simple title to the defendant. He further avers that the interest of plaintiffs in the premises described in the petition, were encumbered on November 17, 1910, by a certain lease executed by said plaintiffs to the Ohio Fuel & Supply Company for the period of twenty years, said lease being of record, Volume 7, page 250, lease record of Richland county; that said lease is still in full force.

The consideration, $7,000, with based upon the marketable fee simple title which plaintiffs are unable to deliver to the defendant. He further avers that no deed was delivered to him on the first day of April, 1911, as was required by the terms of said paper writing. He therefore prays that the plaintiffs’ petition be dismissed and that judgment for $100 be rendered against the plaintiffs with interest from the second day of February, 1911, and for costs.

To this amended answer and cross-petition the plaintiffs filed their reply; and say, in substance, that the paper writing executed between themselves and the defendant was signed by said Tda C. Zackman and Jacob Zackman and that the signature of said Ida C. Zackman was her signature and was authorized by her. By way of further answer to the cross-petition, plaintiffs admit that the $100 was paid as part consideration at the time of the execution of the contract. They admit that they represented themselves as being the owners of the premises described in the petition as set forth in said written contract. They further admit that an oil and gas lease was executed by them to. the Ohio. Fuel & Supply Company, which lease was afterwards recorded in the lease record of Richland county, Ohio, but said lease was not made of record until some time in May, 1911, and that the same was shortly thereafter released of record, and is not now of record in said county, and they deny each and every other allegation or part of allegation in said cross-petition not therein admitted to be true.

Upon the issues thus made in the pleadings the cause was tried in the court of common pleas resulting in a decree in favor of the defendant, in which the court held that the plaintiffs had no cause of action as claimed in the petition and that the petition be dismissed. ' The court further found upon the counter-claim that said plaintiffs were indebted to the defendant in the sum of $100 and that the defendant recover from the plaintiffs the said sum of $100 with interest and his costs therein expended. The cause was appealed to this court and has been submitted to the court upon the pleadings and the record in the court below and an agreed statement of facts which are submitted to the court in connection with certain testimony embraced in depositions taken in said cause.

The main contention in this case arises upon the construction to be given to the last will and testament of John Crum, deceased, and especially the fifth item thereof, namely: ’what is the nature of the estate and the extent thereof given to the plaintiff, Ida C. Zackman?

Although the action is a suit for specific performance of a written contract, the principal question involved is as to the nature of the title that Ida C. Zackman got by the will of her father, John Crum, which will was executed on the third day of February, 1897. Said will was duly probated and a copy thereof is introduced in evidence and its true construction will determine the issue in this ease.

There is a preliminary question that we will here notice before attempting to give a construction of the will-or the fifth item thereof, which is the item giving to Mrs. Zackman the land in question. That preliminary question is as to the competency of certain testimony offered in evidence embraced in the deposition of Austin J. Fickes. The deposition was received under objection, which objection the court sustains, with exceptions. The objection to the testimony of Fickes is on the ground that he can not testify as to the instructions given him at the time the will was written or as to conversations as to the intention of the testator. If the controversy here was á suit to contest the will of John Crum there would be more reason for the admission of such testimony, but upon the construction of the will we hold that such evidence is wholly incompetent, as the will must speak for itself.

In the construction of wills there are certain well settled rules to be observed. These rules are used in ascertaining the meaning of the testator when it is doubtful, but are never invoked to defeat his intention when it- is clear. The primary rule of construction is:

“In the construction of wills the great object is always to ascertain the intention of the testator. The intention is made known by language. It may be awkward, obscure and ungrammatical, but it must be language; and one of the important rules for the construction of wills is that language must be interpreted according to its proper acceptation.” Painter v. Painter, 18 Ohio, 265.

The determination of this intention does not give a court the right to conjecture or correct or redraft a will in which the testator has clearly expressed his intention, for “the true inquiry is not what the testator meant to express, but what the words used do express.” Page on Wills, Section 460, and authorities therein cited.

“Parole testimony can not be admitted to contradict or explain tbe contents of a will. ’ ’ Andrew Painter v. John Painter et al, 18 Ohio Rep., 247.

Now, what is the clear meaning of the devise in the fifth item of the will under consideration ? The language of that item is:

“I hereby give and devise to my daughter, Ida Catherine Zackman, and her heirs the west half of the southeast quarter of section fen, consisting of 80 acres in Franklin township, Rich-land county, Ohio.”

It is conceded by counsel' for the defendant that if this item stood alone it would convey a fee simple estate, but it is sought to reduce the estate given in this item by comparing the language used in item five with language used in other items of the will. By statute, in a will the word “heirs” is no longer necessary to the creation of a fee simple estate in Ohio, and therefore, unless there is something in the will to show that the testator’s intention was not to give a fee simple estate to Ida C. Zackman,' the language used “to her and her heirs” would surely convey a fee simple estate. It would be sufficient to convey a fee simple estate if it were a deed and it certainly by being used in a will where the word “heirs” is not necessary can not have the effect of reducing the estate from what it would be if it had been a conveyance by deed.

“ It is not necessary to the creation of a fee in a will to use the word ‘heirs’ but where the term is used it does not indicate a purpose not to grant a fee.” Gannon v. Albright, 81 S. W. R., 1162; Webbe v. Webbe, 234 Ill., 442, s. c. 17 L. R. A. (N. S.), 1079.
“Where an estate is conveyed by one part of a will, it can not be cut down by raising a mist or doubt from another part.” Martin v. Martin, 52 W. Va., 387, 44 S. E., 198; Gaskins v. Hunton, 92 Va., 528, 23 S. E., 885.

We think that the doctrine laid down in the case of Halley et al v. Hengstler et al, reported in 3 C.C.(N.S.), 161, 164 and 165, affirmed without report, 70 O. S., 452, is decisive of this ease.

The contention of the defendant is based on the theory that the word “heirs” is used in the sense of children in the fifth item of the will here in question. No authority is cited that would support, this position. There is no provision of the will nor any circumstances shown by the record to justify a departure from the settled rule of construction; there is no distinction legal or grammatic between the words “after him” or “after his death or-after his decease”; the use of the words “after him” must be construed to mean the same as though the provision of the will read “after his death or after his decease.” In a legal sense the devisee could have no heirs while he lived; they become his' heirs is after him, that is, after his decease.

' There is nothing in the will in question in this case to enforce the construction contended for by defendant that the word “heirs” used in item five of the will, refers to the children of the devisee and, therefore, the contention is, that Ida C. Zaekman only got a’ life estate in the property devised to her in item five of the will of John Crum. We can not agree with this contention.

Looking at the will “from its four corners” is there anything found to change or alter the plain meaning of the language used in item five. Does a consideration of the other items justify-a different conclusion?

Where the words used grant an estate in fee it can only be cut down to a lesser estate by words as clear and decisive as those by which the estate in fee was granted in the first instance.

“When the absolute estate has been conveyed in one clause of the will, it will not be cut down or limited by subsequent or prior words, except such as indicate as clear an intention as would the words used in creating the estate. Words which merely raise a doubt or suggest an inference will not affect the estate thus conveyed, and any doubt which may be suggested by reason of such subsequent or prior words must be resolved in favor of the estate first conveyed.” In the Matter of Granniss, 142 Cal., 1.

So upon a true and reasonable construction of said item five, following the authorities above cited, we hold that the only view a court can take of said will in question is, that under it an estate in fee simple was created and vested in Ida C. Zackman, in the real estate described in the petition.

Our conclusion is that item five in this will gives a fee simple to Ida C. Zackman, and that there is no ambiguity or doubt as to the nature of the title devised by the terms of this will; and there being no doubt as to the title, there can be no reason why the plaintiffs are not entitled to a specific performance of the contract.

The court finds that the lien mentioned in the defendants’ cross-petition was not a lien on the premises of plaintiffs at the time the contract of sale was made or when the deed was tendered to defendant, that said lien had been canceled of record as averred in plaintiffs’ reply to said cross-petition.

We are of the opinion that the defendant’s objection to the title to this property is not valid, and is no excuse for his failing to comply with his contract, and, being of this opinion, we hold that the plaintiffs are entitled to the relief prayed for in their petition, and that a decree be entered for a specific performance of the contract, and that judgment be entered in favor of the plaintiffs for the balance due on said contract, with interest as prayed for in the petition; that the defendant pay the cost of this action. Motion for new trial filed and overruled; exceptions.


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

text:
    BURDEN OF PROOF IN ACTION ON ACCOUNT IN THE SHORT FORM.
    Circuit Court of Cuyahoga County.
    Frederick F. Hodges v. C. E. Taft.
    Decided, March 28, 1908.

      Action on Account — Short Form — Necessity to Prove Contract — Amendment of Answer to Include General Denial.

    1. In an action on an account set up in the short form in the petition, one of the items of the account being for commissions, etc., “ás per verbal agreement,” the burden is on the plaintiff to prove the terms of the agreement and performance thereof by him the same as if he had sued on the contract.
    2. At the close of all the evidence, under Section 5114, Revised Statutes, the court may permit the defendant, when justice requires it, to amend his answer so as to include in it a general denial.

      M&Orath c0 Stern, for plaintiff in error.

      Smith, Taft (0 After, contra.
   Marvin, J.; Henry, J., and Winch, J.,

concur.

Hodges sued Taft, his petition being in the short form authorized for suit upon an account. An averment in the petition is that the account is “for commissions at the rate of one-half of 3 per cent, on the figured cost of a four story brick and stone apartment house, which figured cost was $33,000, and for architectural services, specifications, plans, bids, etc., thereon, which services were rendered by the firm of Hodges & Hodges, formerly a partnership, and which account has been sold, assigned and transferred to this plaintiff for a valuable consideration. ’ ’

The account annexed t'o and made a part of the petition is in these words:

“C. E. Taft:

“October 15, 1901.

! ‘ To Hodges & Hodges, Dr.

“To commissions at the rate of V% of 3 per cent, on figured cost of building to-wit: $33,000.00 for architectural services, preparing plans, specifications, receiving bids, etc., on four-story brick and stone apartment House on Detroit Street, as per verbal agreement ................................ $495.00

“October 15, 1901, by credit of amount paid on former contract as per agreement December 21, 1901 ................................... $95.00

‘ ‘ Received by cash on account........... 5.00

‘ ‘ Total Credits $100.00

“Balance due $395.00”

To this petition the defendant answered, setting out that he entered into a verbal contract with Hodges & Hodges, by the terms of which they were to prepare plans and specifications and obtain estimates for a sixteen suite apartment house, etc., the building to cost not to exceed $28,000. That he was to pay for such plans, specifications, etc., the sum of $100, and that in the event he should thereafter determine to 'put up said building, he was to pay 5 per cent, on said cost of $28,000 for their services as architects and superintendents.

The answer then avers’ that the estimates secured on the plans prepared by Hodges & Hodges ivere between $33,000 and $34,000 and that thereupon he determined not to go forward with the work. That he paid to said Hodges & Hodges the sum of $100 and that was all that was agreed to be paid.

To this the plaintiff replied, denying each and every allegation, statement and averment contained in the answer, and then averring that the $100 alleged in the answer to have been paid to said Hodges & Hodges was applied upon the account referred to in plaintiff’s- petition, and it was distinctly understood and agreed that the said $100 should be applied upon account thereof only.

It will be noticed that there is no direct denial in the answer of the averments of the petition, though a liberal construction of the answer would probably result in finding that the contract spoken of in the answer is the same one which the plaintiff in his account speaks of in the words, “as per verbal agreement.”

At the trial it developed that there was an agreement between the parties that Hodges & Hodges should perform certain duties for the defendant, as architects. There was a disagreement as to the terms of that agreement, but there was no claim on either side that there was not some kind of an agreement or verbal contract between the parties, and that whatever claim the plaintiff had against the defendant was for services performed under such verbal contract. The denial contained in the reply to the defendant’s answer, was much broader that he probably intended to make it, for there was no dispute between them that $100 had been paid by the defendant to the plaintiff or paid to Hodges & Hodges for some work done under an agreement between them. The court charged the jury,- that to entitle the plaintiff to recover he must show an agreement or contract made between his firm and the defendant for these services. This is complained of. It is said that because the form of the petition is the short form, provided for suit upon an account, there was no necessity of proving the contract, but the copy of the account itself says that the work was d-one under a verbal agreement. The fact that the short form of pleading was used in nowise relieves the plaintiff from the burden of showing that there was an agreement under which, as he says in his account, the services sued for were rendered. The evidence would have to be the same as though he had set out the fact that he had made an agreement to perform certain duties and that he had performed those duties.

As to the burden of proving, the court charged the jury that the burden was upon the plaintiff to establish his case. It is urged that this was error, because it is said, having denied, in the reply, the allegations of the answer, there was a denial of the payment of the $100, and therefore the burden was upon the defendant so to show such payment. Since the petition itself showed that the defendant had paid $100 and it was only that $100 which the defendant claimed to have paid, there was no burden upon him to prove such payment.

As said earlier in this opinion, there was no direct denial in the answer of the allegations of the petition, but the allegations are such that it was clearly understood that the defendant and the plaintiff were both relying upon the same contract, whatever it was. The court, however permitted the defendant, at -the close of the evidence, to amend his answer by inserting a general denial. This worked no injury to the plaintiff. The ease was tried as though such denial was in the answer, and under Section 5114, R. S. O., it was entirely proper for the court to permit this amendment to be made.

We conclude, therefore, that there was no error in the charge of the court, nor do we find any error in the record which would justify a reversal. The judgment is affirmed.


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

text:
    ACTION TO FORECLOSE CHATTEL MORTGAGE.
    Circuit Court of Cuyahoga County.
    Samuel C. Green v. William M. Bass et al.

    Decided, March 7, 1911.

      Chattel Mortgage — Lien iSot Lost t>y Levy.

    The priority of lien of a chattel mortgage is not lost hy taking judgment upon the mortgage note and levying upon the mortgaged ■ goods.

      A. H. Martin, for plaintiff in error.

      Green, Green & Green, Higley ■& Maurer and Gage & Wilber, contra.

       Affirmed, Green v. Bass et al, 83 O. S., 378.

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

concur.

Bass gave a chattel mortgage to the Cleveland & Sandusky Brewing Company on certain chattels, to secure the payment of a cognovit note given by him to the brewing company. This mortgage was in all respects in conformity with law and was duly filed.

Later Bass gave a mortgage on the same chattels to Green, to secure payment of a debt to him.' This mortgage was likewise in all respects in conformity with law and was duly filed.

Later, and while each mortgage was in full force, the Cleveland & Sandusky Brewing Co. brought suit upon the cognovit note and obtained a judgment thereon against Bass, and caused an execution to be levied upon the chattels covered by the two mortgages. Before sale was made under the levy, the Cleveland & Sandusky Brewing Co. recalled the execution, and sold and assigned both its judgment and its mortgage to the Standard Brewing Co.; at the same time it advanced money to Bass and took a new mortgage from him to secure the original debt and also secure the repayment of the money then advanced to Bass.

The present suit is brought to foreclose the- mortgage given to Green.

The Standard Brewing Co. claims that by virtue of the mortgage assigned to it by the Cleveland & Sandusky Brewing Co. it has a lien upon the goods superior to the lien of the plaintiff. This the plaintiff denies. This presents the only question for our solution.

The plaintiff bases his contention upon the proposition that, though the brewing company’s mortgage was originally prior and superior to his, such priority was lost when judgment was taken on the note and the goods levied upon by execution, and that the subsequent release of the execution did not have the effect to restore the original mortgage lien. If then it be found that the judgment and levy was not a waiver of the mortgage lien, the plaintiff must fail.

The argument is made that the brewing company had two remedies, to-wit, to sue and recover upon its note and levy on the goods of Bass, or to proceed on its rights under the mortgage, at its election; that it elected to take the former course, and is bound by such election and may not thereafter alter its election and proceed upon its mortgage.

The plaintiff makes no claim that the bringing of the suit and obtaining judgment constitutes a waiver of the brewing company’s rights under its mortgage, but that such waiver results from the levy of the execution upon the property.

It is not claimed, and can not successfully be claimed, that the act of the brewing company in causing levy to be made and then releasing the goods from such levy could work a hardship to the plaintiff, even if it should be held that the mortgage lien was not thereby waived, because he was not induced to do, or to refrain from doing anything because of the levy.

In support of plaintiff’s contention many cases are cited, some of which seem to give much weight to the contention. So far as the authorities in Ohio are concerned, we find them to be with the brewing company.

In Albrights v. Meredith, 58 Ohio St., 194, it is held, that where a vendor of chattels, under the conditional sales act, R. S., 7913, recovers judgment at law for the unpaid portion of the purchase money, and causes execution to be levied upon the property sold, he thereby waives his right to his lien under the contract, and shall be he'ld to his election of remedies. The court, in the opinion, calls ■ attention to the fact that the vendot failed to comply with the provisions of the statute, requiring repayment to be made by the vendor before he can retake the property. The controversy was between a party to whom the vendee had mortgaged the property and the constable who had seized the property on execution on the judgment of the vendor. The reason why the constable, or the vendor who had obtained the judgment, could not hold the property, is obvious. The vendor had chosen a remedy wholly inconsistent with his claim under the contract of sale, as evidenced by his failure to repay any part of the purchase money, as lie was required by statute to do, before he could claim the property. The reason for the decision in-that case does not apply to the case now being considered.

The case of Ohio, ex rel, etc., v. Walter Lacy, 18 C. C., 379, does not pass upon the question raised in the present case. All that is said about it is that mortgaged chattels which had been levied upon by execution at the suit of the mortgagee, and were in the hands of the constable, under such levy, were subject to selection as exempt, in lieu of a homestead, these words being used, speaking of the effect of the levy: “this, we think, was a waiver of any claim by said Conroy & Co. (the mortgagees) to the ownership of said property by virtue of a chattel mortgage from Mrs. Armstrong, the relator, even if such claim were asserted in this action, as we understand it is not.”

It will be seen by this language that though the judge delivering the opinion expressed his views on the point, the question was not raised. True, the proposition is stated in the syllabus, as claimed by the plaintiff here, but the syllabus was probably prepared by the publisher and not by the court or any judge of the court.

The case of Frost v. Shaw et al, 3 Ohio State, 270, seems exactly in point and to sustain the claim of the brewing company, the second clause of the syllabus reading as follows:

“Where, by the terms of a chattel mortgage, the mortgagee, at the maturity of his debt, has the right to the possession of the property, ■ and he sees proper to reduce his debt to judgment, and then through his agent, to turn out the mortgaged property, and have it sold under the authority of an execution for the payment of his debt, the debtor sustains no injury in the right of possession in the property, which would support an action of trespass, even although the chattels thus mortgaged and sold belonged to the enumerated articles exempted by law from execution.”

And the court say, at page 273:

“By virtue of the chattel mortgage, both the right of possession and the right of property in all the chattels excepting one, had passed to the mortgagees; and if they deemed it proper, through their agent, to take possession of the property, and have it sold under the authority of an execution, n<5 wrong was done the plaintiff in his right of possession, for which he could sustain an action of trespass.”

To the same effect is the case of Colwell v. Carper, 15 Ohio St., 280. In the opinion on page 286, the court say:

“The husband mortgaged the property without his wife’s consent or knowledge. The condition was broken; and thereupon the right of possession, as against the husband, accrued to the mortgagees, which they could assert with or without process; and when asserted by process of execution, the husband was precluded, by the operation of his mortgage, from claiming the property as exempt from execution. Frost v. Shaw, 3 Ohio St., 270. The fact that the mortgagees chose to resort to process to effectuate a change of possession, can make no difference; and the disposing of, and parting with, both the title and possession, was as effectual as it was in the husband’s power to make it.”

The editor of the 21st edition of Swan’s Treatise, published in 1905, states the law at pages 287-8, as laid down in Frost v. Shaw, supra.

Finding, as we think we do, from these authorities, that the law is settled in Ohio by the decisions of our Supreme Court, we think it unprofitable to consider how that question has been decided in other jurisdictions.

We liold that the Standard Brewing Company has the prior and superior lien on the mortgaged property.


text:
    CONTEMPT BEFORE A POLICE JUSTICE.
    Circuit Court of Cuyahoga County.
    John Meek v. Joseph V. McGorray, Sheriff.

    Decided, March 28, 1908.
    A police justice may punish for a contempt committed in his presence while he is in the exercise of his official duties.

      Miller .& Linder, for plaintiff in error.

      8. V. McMahon, contra.

       Affirmed without opinion, 81 O. S., 542.

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

concur.

The only question in this ease is whether one appointed a police justice under Section 1536-88I®, Revised Statutes, may, while in the exercise of his official duties as such, punish for contempt committed in his presence. Section 605, Revised Statutes, provides that a justice may punish, as for contempt, persons guilty of "disorderly,” "contemptuous” or "insolent behavior, ’ ’ toward the justice, tending to interrupt the due course of trial, or other judicial proceeding before him.

Section 1536-783 provides that:

"In felonies, and other criminal proceedings * * * the mayor shall have jurisdiction and power, throughout the county, concurrent with justices of the peace.”

Section 1536-884a, under which police justices may be appointed, provides that any person so appointed police justice shall "have concurrent jurisdiction of all prosecutions for violations of ordinances of the corporation with full powers to hear and determine the same, and shall have the same powers, perform the same duties and be subject to tiie same responsibilities in all such cases as axe prescribed in the Revised Statutes of Ohio, to be performed by and are conferred upon the mayors of such corporations.”

Since the statute provides that a justice of the peace may punish for contempt, and that he who presides at a trial, as provided for in the statutes authorizing mayors to preside at trials, shall have the same authority to punish for a contempt as the justice has, and the statute further provides that in all such criminal trials the police justice shall have the same authority and perform the same duties as the mayor, it seems to follow, without question, that the police justice may punish for contempt. But even without the statute the case of Hale v. State, 55 O. S., 210, goes a long way to support the proposition that every court has inherent power, without authority of statute, to punish for contempts committed in its presence. It is true that the syllabus in that case speaks of courts created by the Constitution, but the reasoning of the case is to the effect that in the very nature of things, he who presides as a judge in a superior or inferior court, must have authority to punish for contempts committed in the presence of the court.

We reach the conclusion, then, that the judgment of the court of common pleas should be, and it is affirmed.


text:
    REPLEVIN OF GOODS CLAIMED AS EXEMPT.
    Circuit Court of Cuyahoga County.
    M. C. Poelking v. The Eldridge & Higgins Co.
    Decided, May 18, 1908.

      Exemption — Surplus Subject to Levy — Replevin.
    When goods levied upon to satisfy a judgment are claimed as exempt and replevied upon that ground, the defendant in replevin is entitled to a judgment for the excess of value of the goods over $500 not exceeding |he amount of the judgment and costs.

      Burrows <& Mason, for plaintiff in error.

      Carr, Stearns <& Chamberlain, contra.
   Marvin, J.; Winch, J., and Henry, J.,

concur.

The plaintiff, Mrs. M. C. Poelking, is the wife of Henry Poelking. He kept a grocery in this city. He was sued by the ITeintz Company, and judgment obtained against him and execution was levied upon his stock of groceries. He demanded that certain goods be set off to him as exempt, in lieu of a homestead. Just what was done under this demand is not clear from the evidence. The constable said nothing about it in his return of the execution, nor was it necessary, for he sold enough to satisfy the judgment and costs, and it is not claimed that he sold any that was set off as exempted, if any was set off. The constable is not clear in his testimony about that. If the jury had .returned a verdict which necessarily carried with .it the fact that the property was properly appraised and set off, as exempt, perhaps we would not disturb it. If the finding necessarily carried with it the fact that the goods were not so set off, it is doubtful whether we would disturb that.

A definite finding', however, on this question, is not necessary to a determination of the case now under consideration.

After the conclusion of the proceedings in, the Heintz case, already mentioned, the defendant in error in this ease recovered a judgment against Henry 'Poelking and caused execution to be levied on the goods, which the present plaintiff claims were allowed as exempt, to her husband, in the former claim. The constable, in the execution of his levy took possession of the goods. Mrs. Poelking then brought suit in replevin, claiming to own the goods, by reason of a transfer of the same to her by her husband, after they wer.e set off as exempt in the Heintz case. She gave the statutory bond and the goods were released to her. The defendant in error was joined with the constable, and the result of the trial was a verdict and judgment for $340 in favor of the defendant, the Eldridge & Higgins Co.

Whatever the fact is as to whether the goods were exempted to the husband, it is certain that if he transferred them to his wife, he did so without consideration, and while he was in debt beyond his ability to pay, and so, if they could have been subjected to the payment of the defendant’s claim, before such transfer, they could equally well be so subjected after the transfer.

If when the goods were levied upon to satisfy the defendant’s claim, the value was sufficient to allow the $500 exemption to which either Mr. or Mrs. Poelking was entitled, and still leave a surplus, such surplus was subject to be applied in satisfaction of defendant’s judgment, and the present plaintiff having retaken the goods, after giving the statutory bond therefor, the defendant was entitled to, a judgment in the action to the extent of such surplus, no1 exceeding the amount, of its judgment and costs. The evidence was such as to warrant the jury in finding that the goods taken in replevin were of such value as to provide the $500 exemption, with enough in addition to satisfy the claim of the defendant.

If they so found, the verdict was right and we can not disturb it. It is affirmed.


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

text:
    EFFECT OF THE .MISNAMING OF A CREDITOR. BY A BANKRUPT.
    Circuit Court of Cuyahoga County.
    Charles D. Collins v. William J. Davidson.
    Decided, May 18, 1908.

      Bankruptcy — Creditor Not Rightly Scheduled — Collateral Attack.

    1. A debt of a bankrupt due William J. Davidson is not discharged by . scheduling it in the name of William F. Davison.
    2. An action by Davidson on his debt against the bankrupt would not be a collateral attack upon the discharge in bankruptcy.

      J. P. Dawley, for plaintiff in error.

      Weed, Miller & Nason, contra.
   Marvin, J.; Winch, J., and Hénry, J.,

concur.

Davidson brought suit against Collins and for his cause of action set out that he held and owned a valid judgment against Collins, on which was due him from Collins something more than $150.

To this, the only answer of Collins is that on the 23d day of of March, 1905, he was discharged in bankruptcy from all debts and claims, which by the bankruptcy laws of the United States were made payable against him or his estate, which existed on the 15th day of May, 1902, and that the claim of Davidson was one of those included in the discharge; that said discharge is still in full force.

Davidson admits by his reply that Collins was discharged in bankruptcy a.nd that the order of discharge is in full force, but he denies that his claim is included in the discharge.

Prom the facts as agreed upon between the parties it appears that in the schedule of liabilities filed- with the petition in bankruptcy the name “William J. Davidson” does not appear as a creditor; nor did he have actual knowledge of the proceeding in bankruptcy until after the order of discharge was made.

There was, however, in the schedule of liabilities, the name of “William P. Davison,” whose residence was given at Cincinnati, Ohio, which was the place of residence of William J. Davidson. Notice of the'proceedings was mailed to William F. Davison, Cincinnati, Ohio. Collins had no creditor by the name of William P. Davison residing at Cincinnati, Ohio.

The case was tried to the court, a jury being waived, and Davidson recovered. The present proceeding is brought to» reverse such judgment. It is urged first, that Davidson’s suit against Collins is in effect a collateral attack upon the discharge, which can not be maintained. This is unsound. No attack, collateral or otherwise, is made in the suit of Davidson, upon the order of discharge. It is not contended that it is not in full force, but only that Davidson’s claim is not affected by it. This seems perfectly clear, but if there ever could have been any doubt on the subject, it is settled by adjudication. The Supreme Court of Wisconsin in the case of Custard v. Wigderson et al, 110 N. W. Rep., 263, had the precise question before it, and the court held that though the order of discharge could not be collaterally attacked, the creditor, whose claim was not properly scheduled, and who was without actual notice, could maintain his action upon it.

The Supreme Court of New York, in Sutherland v. Lasher, 11 Am. Bankruptcy Reports, 780, made the same holding, using this language in the syllabus:

“It does not constitute a collateral attack upon the discharge, generally, for the judgment creditor to oppose the motion to vacate his judgment where he merely insists thereon that the discharge did not discharge his particular claim.”

And in the opinion, at page 782, it is said:

“On behalf of the motion it is further urged that the discharge in bankruptcy can not be collaterally attacked in this proceeding. No such attempt is made by the plaintiff. The validity and effectiveness of the discharge in general are not questioned, the only point raised being that it does not extend to this particular claim, for the reasons above mentioned.”

There remains, then, for consideration, only the question of whether the schedule giving the name “William F. Davison, Cincinnati, Ohio,” and the mailing of notice so addressed, was sufficient to charge William J. Davidson, of Cincinnati, Ohio, with notice.

Under the bankruptcy act of 1867 it was held in several cases, and perhaps uniformly, that a clerical mistake in the name of a creditor, who had no actual notice, was not fatal to the claim that the debt was included in the discharge. See Thornton v. Hogan, 17 National Bankruptcy Reports, 277, where it was held that a debt scheduled under the name of William T. Thomson and notice addressed by mail to him was- sufficient, though the real name of the creditor intended was William T. Thornton. See also Thomas v. Jones, 39 Wis., 124, and Oshorn v. Dobring, 53 N. W. Reps., 403. Under the present statute, however, the decisions are at variance with those under the former.

In the case of Custard v. Wigderson et al, supra, this language is used in the opinion:

“But it will be seen that under the act of 1867 debts not scheduled were not excepted from the operation of discharges, while under the bankruptcy act of 1898 they are. Section 17, Bankr. Act. 1898, provides that a discharge in bankruptcy ‘shall release a bankrupt from all his- provable, debts, except such as have not .been duly scheduled.’ This .provision is a marked departure from former bankruptcy acts, and decisions under such acts, to the'effect that scheduling was not necessary in order to bring the debt within the order of discharge. • The words of the present act, however, are plain and unambiguous, and there can be no doubt that they mean what they say; and if so, unless the debt is duly scheduled in time for proof and allowance, or the creditor had notice or actual knowledge of the proceedings in bankruptcy, it is not affected by the discharge.”

Further on in the opinion this is said:

“So far as the courts have spoken upon the subject, since the bankruptcy act of 1898, they hold that extreme exactness must be used in scheduling the creditors by name in the bankruptcy proceedings.”

The above case is followed by citing a large number of authorities.

In this case it was held that the schedule giving the name “A. Castard” was not such as to bar “Custard” from maintaining an action on his claim, notwithstanding the discharge.

To the same effect is the ease of Haack v. Theise, 16 Am. Bankr. Reps., 699, where in the opinion this language is used:

“The schedule of debts which the bankrupt files furnishes the basis for the notice to be sent and thus the bankrupt appears to be made responsible for the correctness of the list of his creditors.”

So far as the probability that a letter mailed to William F. Davison, Cincinnati, Ohio, would reach William J. Davidson, Cincinnati, Ohio, it may be illustrated by referring to the City Directory of Cleveland, the population of the two cities not differing widely in number. There are' ten Davison’s given in the Cleveland Directory, one of whom is given as “Wm.” and one as “W.” In the same directory at least fifty David-sons are given, two of whom are Wm., one Wm. A., one Wm. L., two Wm. R., one Wm. D., and one Wm. W.

It Will thus be seen that the notice sent in this case, addressed as the debt was scheduled, would in all probability fail to reach the real creditor. The debt was not properly scheduled, and the judgment of the court was right and is affirmed.


text:
    GUARANTY BY WIFE OF HUSBAND’S ACCOUNT.
    Circuit Court of Cuyahoga County.
    The Warren Paint Company v. Margaret Swihart.
    Decided, June 8, 1908.

      Guaranty — Consideration for — Extension of Time.

    Upon April 16, 1904, the defendant endorsed upon a statement of an account from her husband to plaintiff the following: “I will see that this account is paid by $25 a month beginning August 1, 1904.” In an action against her on this agreement, Held: That it constituted a guaranty, consideration for which would be furnished by an extension of time given her husband and that plaintiff might show that it had in fact made no demand of payment before August 1st, as some evidence not only that an agreement for extension of time had been made but that it had been kept by plaintiff.

      Horr & Lowenfhal, for plaintiff in error.

      Benjanún G. Starr, contra.
   Marvin, J.; Winch, J., and Henry, J.,

concur.

The parties here are as they were in the court below. The suit was brought by the paint company against Margaret Swihart, and alleges as its cause of action:

“That on or about April 16th, 1904, Frank Swihart was indebted to this plaintiff in the sum of $330.70, then past due and payable. That on said date the defendant in consideration of the extension granted by the plaintiff, of the time of payment of said indebtedness, and signed upon a statement of the said indebtedness against said Frank Swihart as follows: ‘I will see that this account is paid by $25 a month beginning August 1st, 1904. (Signed) Margaret Swihart,’ and by said writing defendant then and thereby guaranteed the payment to plaintiff of said indebtedness from said Swihart, in monthly installments of $25 each, beginning August 1st, 1904. A copy of said statement containing a copy of said agreement is hereto attached marked ‘Exhibit A.’
‘ ‘ The plaintiff duly performed all the conditions of said agreement on its part to be performed. But said indebtedness has not been paid, except the sum of $105 paid in small installments at various times, and there is now due and payable to the plaintiff on said account the sum of two hundred and twenty-five dollars and seventy-four cents' ($225.74) with interest.
“Wherefore plaintiff brings suit and asks judgment for said amount of $225.74 together -with interest on the entire account from January 1st, 1904.”

The exhibit which is attached to the petition is in the form of an account of the plaintiff against Frank Swihart. On the account are these words endorsed: “I will see that this account is paid by $25 a month beginning August 1st, 1904 (Signed) Margaret Swihart.”

The evidence show's that Frank Swihart w'as indebted to the plaintiff on this account; that Ford M. Clapp, a representative of the plaintiff, called on Frank Swihart for payment of this account in April, 1904; that he stated that he was not able at that time to make payment; that the defendant is the wife of Frank Swihart and that, she was called by her husband and had a conversation with Clapp and her husband together, the result of which was that Clapp wrote the endorsement on the account and the defendant then signed it.

The claim on the part of the plaintiff is as stated in the petition, that this was an undertaking on the part of the defendant to guarantee the payment of the account, and that it was made upon the consideration that time for payment should be extended, the account being already due at the time the endorsement was made.

It will be noticed that no consideration is named in the endorsement, nor does it appear from the testimony of Clapp that he, in words, promised that the time for paymént should be deferred, but the promise that the defendant would see that the account would be paid in monthly installments of $25 each, beginning on the 1st of August, 1904. That this was a guaranty on the part of the defendant for the payment of this account we entertain no doubt. Stearns on Suretyship, at Section 5 says:

“A guarantor is one who undertakes to pay, if the principal does not, * * * The guarantor promises that the principal will perform his agreement, and if he does not, then he, the guarantor, will do it for him.”

Bouvier, in his definition of the word guaranty says it is: “An undertaking to answer for another’s liability, and collateral thereto. ’ ’

And says further, that the form of words in which this undertaking is made is not material. The words have the meaning as written hereof ‘ ‘ I will see that this account is paid; ’ ’ that ‘ ‘ I will be responsible that the debtor shall pa.y this account,” and that is equivalent to saying, “If the debtor does not pay this account, I will pay it;” and this constitutes a guaranty. That tliere must be a consideration for such guaranty in order that the guarantor be bound, there can be no doubt. That an agreement to defer payment is a sufficient consideration is equally well settled, and that to entitle the creditor to avail himself of the guaranty, he must have deferred, where that was the consideration, as he undertook to do. In this case the evidence is that Clapp, having obtained this endorsement, returned the account to the plaintiff with the endorsement upon it and that no payment was thereafter made until in August, 1904, when the defendant made a payment upon the account, and thereafter payments were made by her or her husband to the amount of something like $100 when the payments ceased, and this suit is for a balance still owing upon this account.

The plaintiff offered to show, as appears on page 6 of the bill of exceptions, that no demand was made upon either Mr. or Mrs. Swihart, for any payment until after the 1st of August, 1904. Upon objection of the defendant this evidence was excluded. In this we think there was error on the part of the court. One of the things which it was incumbent upon the plaintiff to prove in order to hold the defendant was, that there was carried out, on the part of the plaintiff, the alleged agreement to defer the collection of the claim. The evidence excluded would have tended to establish this material fact. Another question which was asked of Clapp, who was a witness on behalf of the plaintiff, was in these words: “Will-you state whether .or. not there was extended to Mr. or Mrs. Swihart the extension of payment as stipulated in this agreement?” An objection to this question was sustained, and the action of the court'in that regard is complained of here, but as this involved a conclusion rather than a fact, we do hot think there was error in sustaining the objection to this question.

At the conclusion of the evidence on the part of the plaintiff, a motion by the defendant to direct a verdict in her favor was sustained. In this there was .error.

Perhaps with the evidence just as the court had permitted it to go to the jury, the plaintiff had not made a case, but if the court had permitted the witness to answer that no demand was made for payment after the defendant signed the endorsement until as late as the 1st of August, 1904, it would have tended to show that the plaintiff had agreed to the extension. Taken in connection with the fact that Clapp, the representative of the plaintiff, himself prepared the endorsement and that .it was signed and delivered to him, and by him delivered to the plaintiff, and that the plaintiff made no demand for payment until the time mentioned in the endorsement as the date of the first payment, it would certainly have made a case to be submitted to the jury as to whether or not the plaintiff had not agreed to the extension and performed that agreement. A ease, which seems to be directly in point, is that of Breed v. Hillhouse, 7th Conn., 523, where this language is used in the syllabus:

“Where a payee of a promissory note, after it became due, accepted the guaranty of a third person, for a certain length of time, and actually forbore suit during that period, it was held that these facts afforded prima facie evidence of an agreement by the plaintiff to forbear suit.”

And in the opinion at page 528, this language is used:

“The agreement in question to forbear, was clearly proved on a principle of probable presumption, which harmonizes with common sense and is conformed to experience; and both reason and experience bear concurrent testimony to the inference of a consideration in this case. The acceptance of the indorsed guaranty by the plaintiff, and his consequent forbearance, prove the agreement in question, and are incompatible with any other’ supposition.”

What has been said necessarily results in a reversal of the judgment, for error in excluding the evidence named and in directing a verdict for the defendant.


text:
    IDENTIFICATION BY WITNESS OF DEFENDANT IN ^ CRIMINAL CASE.
    Circuit Court of Cuyahoga County.
    Vinko Duranec v. State of Ohio.
    Decided, June 8, 1908.

      Criminal Law — Evidence—Charge as to Degree of Grime.

    1. On the trial of one indicted for murder in the second degree, it is not reversible error to permit an eye witness of the shooting to testify that after the arrest of the accused he went to the police-station and. picked out the accused as the person who did the shooting, where he is able at the trial to identify the accused, and does so.
    2. In such trial it is error to charge that the jury should either find the accused guilty of murder in the second degree or manslaughter or acquit him, for this excludes the two lesser offenses of assault and battery and assault alone.

      Ralph Linder, for plaintiff in error.

      P. L. A. Lieghley, contra.
   Marvin, J.; Winch, J., and Henry, J.,

concur.

Duranec was indicted by the grand jury of this county for the crime of murder in the second degree. Having pleaded not guilty, he was tried, the result being that he was found guilty of manslaughter. It is urged in his behalf here, that there was error in the trial manifest upon the record.

Evidence was introduced tending to show that Stanislas Wojezak died of the wound within the same month that he was shot, that being on the 19th day of March, A. D. 1908.

George A. Transue testified that he saw the plaintiff in error do the shooting; that later on the same day he was called to the police station on'Broadway in this city,'where some ten or fifteen men were together in the station; that he was then asked to pick out the man whom he had seen shoot Wojczak. He was asked if he did so, and he answered: “Yes, sir, the lieutenant I think it was, asked me to pick him out, and I went in the crowd and picked out the gentleman.” Upon the motion of the plaintiff in error the language “and picked out the gentleman” was excluded by the court. But immediately thereafter this question was asked: “And who did you there pick out as the one you saw fire the shot, out at the mills?” This was objected to by counsel for plaintiff in error, and the objection was overruled and the witness answered, “I picked that gentleman there out.” (Indicating the plaintiff in error.)

It is said on behalf of the plaintiff in error that this- ruling was not only erroneous, but that it was prejudicial to the prisoner. It is conceded, and must be, that the witness might properly answer that he saw the man who did the shooting at the police station on the same day that the shooting was done, and that that man was the prisoner then on trial. It does not follow that what the witness said at the time is admissible; indeed, the only ground on which it could be claimed that it was admissible would be, that something was said or done by the witness at the time, which called upon the prisoner to say or do something, and this does not appear to have been the case here. We, therefore, think that the fact that the witness pointed out to the police officer the plaintiff in error as the person who did the shooting was erroneously admitted, but we would not reverse the case for this alone, because it does not appear that there was any prejudice to the rights of the plaintiff in error in the answer given by the witness. The witness had already testified that the prisoner on trial, the plaintiff in error, was the man who did the shooting; that he saw him do it; that he recognized him later on the same day that the shooting was done, and no weight was added to this, by the statement that he pointed him out to the officer.

It is further complained however, that the court erred in its charge to the jury, where this language is used:

“The indictment accuses him of what' is known as second degree murder, and I say to you now that there will be three verdicts submitted to you, only three. The one reads: ‘We, the jury in this case being duly empannelled and sworn, do find the defendant, Vinko Duranec, guilty of murder in the second degree as charged.’ And the other one reads: ‘We the jury in this case, being duly empannelled and sworn do find the defendant, Vinko Duranec, guilty of manslaughter as charged.’ And the third reads: ‘We the jury in this- case being duly empannelled and sworn, find the defendant, Vinko Duranec, not guilty. ’
“I can not find in the evidence of this case any facts that would warrant my submitting any other verdicts to you. Then the defendant herein is guilty of murder in the second degree or he is guilty of manslaughter, or he should go out of this room acquitted; one of those three things, for I think it would confuse you to submit any further verdicts under the evidence in this ease as it stands, and I could not intelligently submit any other verdict. ’ ’

In this we hold that the court erred. There should have been submitted to the jury the question of whether the prisoner was guilty of assault and battery, or of assault, as well as the, questions whether he was guilty of murder in the second degree, whether he was guilty of manslaughter, or whether he was not guilty. It is true that the court told the jury in express terms-that he could not be .convicted of either murder in the second degree or manslaughter, unless the evidence established beyond a reasonable doubt the several elements constituting these several offenses. ' The court properly enumerated each of these elements, and among others, was the proposition that thy must find by evidence which established the fact beyond a reasonable doubt, that the man who was shot died as the result of the wound inflicted by the shot. But it was the duty of the court to have charged, that if they should find that defendant was- not guilty of murder in the second degree, or of manslaughter, they might find, if the facts warranted it, that he was guilty of assault and battery, defining that offense, or that he was guilty of assault only.

It is said that no prejudice could have come to the plaintiff in error by the omission of the court so to charge. It is further said that, if the plaintiff in error desired to take advantage of the failure of the court to make this charge, a request should have been made for such charge.

Where the court overlooks- a proposition that a party thinks should be given in charge to the jury, the proper course to pursue is to request a charge to be made in accordance with the views of the party requesting, and this for the purpose of calling the attention of the court to the proposition, and not permitting one to remain silent and allow the court, by inadvertence, to omit to charge upon some proposition to which a party might be entitled. But in this case there was no occasion to make any request on this subject for the reason that there was no omission to call the attention of the jury to this subject by inadvertence on the part of the court, or by having overlooked it. This is evidenced by the language used in the portion of the charge complained of, viz: “The defendant herein is guilty of manslaughter, or he should go out of this room acquitted; one of those three things, for I think it would confuse you to submit further verdicts upon the evidence in this case as it stands, and I could not intelligently submit any other verdict. ’ ’

Surely, under this language of the court, it would have been idle for counsel for the prisoner to have asked the court to charge as to the right of the jury to find the prisoner guilty of either of the two lesser offenses, and one is not required to do an entirely idle thing for the protection of his rights.

Our Supreme Court has spoken on this subject in several cases, first in; Stewart v. State of Ohio, 5th Ohio, 242; Sharp v. State, 19th Ohio, 379; Heller v. State, 23 Ohio St., 582, and Howard v. State, 25 Ohio St., 399.

The syllabus in the ease of Howard v. State reads:

“Under an indictment containing a count for robbery, and a a count for assault with intent to commit robbery, the defendant may be acquitted of the higher degrees of the offenses charged, and convicted of assault and battery, or of assault alone; and i-refusal of the court so to instruct the jury is error, for Which the judgment may be reversed.” (Stewart v. Stale of Ohio, 5th Ohio, followed and approved.)

In this case the court charged that if they find the defendant neither guilty of robbery nor of assault with intent to rob, as charged in the indictment, then they should acquit the said defendant under said indictment. The court was requested to charge, that if they find the defendant, Charles Howard, not guilty of robbery as charged in the first count of the indictment, nor with assault with intent to rob, as charged in the second count of the indictment, then the jury will be warranted in finding him guilty, under said indictment, of assault and battery or of assault, if the facts in the case, in their opinions, warrant the same.

This request was refused.

In the opinion, at page 401, Judge Rex, speaking for the court, says:

“We think the court erred in refusing to charge the jury as requested, and in the instructions given.”

Citing a number of authorities, the court quotes from and approves the language used in Stewart v. State, 5th Ohio, 241. That language reads: “Where an accusation for a crime of a higher nature includes an offense of a lower degree, the jury may acquit him of the graver offense and return him guilty of the less atrocious. ’ ’ And then Judge Rex says: ‘ ‘ and hence, on the ground that the court could not say that the defendant might not have been prejudiced by the instruction, the judgment was reversed. ’ ’

We are not able to say here the plaintiff was not prejudiced by the failure of the court to charge, that if the fact warrant it, the jury might find the prisoner guilty of an offense less than manslaughter. It is true, as has already been said, that the court properly instructed the jury as to what they must find, in order to convict of either murder in the second degree, or manslaughter, and instructed them that they must be satisfied beyond a reasonable doubt that each of the facts necessary to constitute the crime, for which the prisoner might be convicted, was established. Yet, is may be possible that the jury being satisfied beyond a reasonable doubt, as they well might be from the evideuce, that the prisoner shot the man whom he was accused of having shot, the evidence that the wounded man died as a result of the shot is not shown by such direct evidence as the other facts, and though we might not be warranted in saying that the death of the wounded man is shown and that such death resulted from the wound inflicted, and that the jury might be warranted in holding that these facts were shown beyond a reasonable doubt, yet we think it possible that the jury, having no doubt whatever that the prisoner shot Wojczak and that he ought to be punished therefor, might accept less evidence as to his death than they would have required, had they been permitted to find the prisoner guilty of a lesser offense. In any event, as said in the case of Stewart v. State, supra, and in Howard v. State, supra, we can not say that nó prejudice resulted to the plaintiff in error because of this failure on the part of the court to charge upon the crimes of assault and battery and of assault.

Complaint is further made that the court failed to properly define to the jury the words “reasonable doubt.” What the court said was this:

“The text books and the decisions are full,of dissertations upon what constitutes a reasonable doubt, but I have always been of the opinion, after reading all that I have been able to find on that subject, and repeatedly hearing judges charge in criminal cases that no other words make those words plainer than they themselves are. I don’t know as I have ever heard anything that made it plainer than those simple words, that the evidence must be so clear 'and convincing that it leaves no reasonable doubt in your mind that the defendant is guilty, and there are no words in our language that make that plainer than that. ’ ’

There was no error on the part of the court in this language. We think the jury, from this language, would understand as well what was meant by the words “reasonable doubt” as they could well have been made to understand those words.

The result is that for failure to charge, and that under the indictment the prisoner might be found guilty of assault and battery or of assault only, if the facts warranted such finding, the judgment of the court of common pleas is reversed and the cause remanded.


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

text:
    JOINT TORT FEASORS NOT JOINT DEBTORS.
    Circuit Court of Cuyahoga County.
    Emil Heyndricks v. H. J. Faudel.
    Decided, October 19, 1908.

      Joint Tort Feasors — Release of One Releases All.

    Joint tort feasors are not joint debtors, within the purview of Revised Statutes, Section 3166, which provides that one joint debtor may compromise the claim against himself alone, without releasing his joint debtor.

      Frank Higley, for plaintiff in error.

      E. J. Pinney, contra.
   Marvin, J..; Winch, J., and Henry, J.,

concur.

Heyndricks brought suit against Faudel alleging that Faudel sold to George Cooper & Co., a certain grindstone to be by said Cooper & Co. placed in their factory upon a shaft which would cause said grindstone to revolve very rapidly; that when so placed and caused to revolve, plaintiff and other employes- would be working at and near to said grindstone and would be likely to be injured if said grindstone should separate and parts of it be thrown off; that said grindstone was defective and unlit to use, as aforesaid, by reason of which defect, while this plaintiff was in the employ of said George Cooper & Co., working at said grindstone while the same was rapidly revolving and being used as the defendant knew it was to be used, said grindstone separated and pieces of same were thrown against plaintiff and injured him, and he prays for damages.

The defendant, by an amended answer, admitted the sale of a grindstone to Cooper & Co., that a grindstone in the factory of Cooper & Co. broke at the time stated in the petition and that plaintiff was thereby injured; alleges that plaintiff’s negligence caused or contributed to his injury and denies all other allegations of the petition.

For a second and further defense the amended answer avers that after the plaintiff was injured, he made a demand on said George Cooper & Co. for compensation for the injury received by him in said accident, because of the negligence of said Cooper '& Co. in the premises; that said Cooper & Co. paid the plaintiff the sum of $175 which the plaintiff received and accepted in full discharge of all liability of said Cooper & Co. on account of said injury, wherefore defendant says plaintiff is barred from prosecuting this action.

To this amended answer the plaintiff replied, admitting that he had received said sum of $175, for which he executed and delivered to said Cooper & Co. a written receipt in the following words:

“Cleveland, 0., Aug. 5, 1905.
“Received from R. C. Cooper, Drusilla Cooper and Mary E. Whitelaw, a co-partnership, known as George Cooper & Company, the sum of one hundred and seventy five ($175) dollars, which I (being of lawful age) acknowledge to be in full accord and satisfaction of a disputed claim against „the said R. C. Cooper, Drusilla Cooper and Mary E. Whitelaw, a co-partnership, known as George Cooper & Company, growing out of a bodily injury sustained by me on or about March 1, 1905, for which bodily injury I have - claimed said George Cooper & Company to be legally liable, which liability is expressly denied, and in consideration of said sum so paid, I hereby remise, release and forever discharge the said George Cooper & Company, their heirs, successors, administrators and assigns from any and all actions, claims and demands for, upon or by reason of any damage, loss, injury or suffering, which heretofore has been, or which hereafter may be sustained by me in consequence of such accident and injury.
Witness my hand and seal the day and date first above written.
“Em Heyndricks.”

The plaintiff says, however, that said sum was paid to him not by said Cooper & Co. but by the Travelers Insurance Company of Hartford, Connecticut.

He says that said insurance company was under contract with said co-partnership, George Cooper & Co., to indemnify them against loss by reason of liability imposed by law upon said co-partnership for damages on account of bodily injury accidentally suffered by any employe of said partnership in its place of business.

He says such payment was made to him after he made claim against said Cooper & Co. as well as the defendant in this action, that they were liable to him for damages on account of said injury; that the release and receipt mentioned was executed in consideration of such payment, and he says that he is not therefore barred from prosecuting .the present action.

To this reply the defendant filed a general demurrer, which was sustained, and the plaintiff not desiring; to plead further, judgment was entered for the defendant upon the pleadings, to reverse which the present, proceedings are prosecuted. The question then presented is whether the court erred in sustaining the demurrer.

First, it may be said that we hold that the effect of the payment made to the plaintiff by the insurance company and the execution of the receipt, is the same as though the payment had been made by Cooper & Co. The reply shows that the insurance company was to pay whatever liability should be incurred by Cooper & Co. on account of such accidents; the receipt was given to Cooper & Co. and had the effect to release it from the liability which the plaintiff claimed against it. Surely in the absence of fraud in obtaining this receipt, the plaintiff could not have maintained an action for this injury against Cooper & Co. after having received this money and given this receipt.

Our attention is called to Sections 3162, 3164 and 3166, Revised Statutes.

Section 3162 provides that when a paxdnership is dissolved, any partner may comproxnise with any creditor of the firm, and such coxnproxxxise shall be a release for such partner, and for him only.

Section 3164 provides that such compromise made by a single partner shall not be a release to any other partner.

Section 3166 provides in these words:

“The above provisions in reference to partners shall extend to other joint debtors, who may incidentally compound or compromise for their joint indebtedness, with the like effect in reference to creditors and to joint debtors of the individuals so compromising, as is above provided in reference to partners. ’ ’

We understand this to apply only to cases where the indebtedness is upon contract or judgment, and does not include cases where, whatever liability exists, is because of a joint tort.

In Spencer v. Spencer, 35 Bulletin, 4, it is said that the release of one of two joint wrongdoers upon a joint judgment against the two does not release the other, but this is put upon the ground that when the claim is reduced" to judgment it becomes a debt so as to bring it within the statute.

The word “debt” is defined in Anderson’s Law Dictionary as: First, “A liquidated demand”; “a sum of money due by certain and express agreement”; “a. sum of money due by contract,” etc. He, however, gives further definitions, including a sum of money due upon a judgment, and a sum of money owing upon a contract, express or implied, whether the same be due or not.

AYe hold that one who commits a tort is not a debtor to the party injured, so long as his obligation is -not liquidated by judgment or otherwise.

It is, however, urged that if the one who is injured by the wrongdoing of others or another, makes a claim against two as joint tort-feasors, and compromises with and releases one, it will not release the other, provided that he with whom the settlement was- made was not in fact liable for the injury.

In support of this contention attention is called to eases in several of the American states, among them being:

Railway Co. v. McWherter, 59 Kan., 345, where the doctrine is distinctly held. Also Turner v. Hitchocock, 20 Iowa, 310, and Bridge Co. v. Hall, 125 Indiana, 220.

Thomas v. Railroad Company, 194 Pa. State, 512, is said by plaintiff in error to support the same doctrine, but an examination of the case does not make it clear that it does so hold. This ease was decided in 1900; the same court in an earlier case distinctly held the contrary, as shown later on in this opinion. The contrary doctrine is held in other cases and in the case of Tompkins v. St. Ry. Co., 66 California, 163, some very forcible language is used, which to me, speaking only for myself, is convincing. Oir page 167 of this opinion this is said:

“It is urged by counsel for appellee that the rule only applies where the money is paid by, or the release executed to, one who is himself actually guilty of the wrong or negligence. If it be conceded that a release to or receipt of money in alleged satisfaction from one not himself a trespasser, will not discharge those actually guilty, the question still remains: can the plaintiff, under the circumstances, be permitted to deny that the Sutter Street Railroad Company was guilty of negligence directly contributing to the injuries by her received? Reading the release and stipulation in the record, it is plain the $550 was paid in settlement of the action pending, insofar as the cause of action alleged constituted a claim against the' Sutter Street Railway Company.
“The compromise of an asserted claim does not necessarily involve an admission on the part of him against whom the claim is asserted, that the claim is well founded. But one who, having commenced an action against another, has received money in consideration that the action shall be dismissed, or that any judgment he may recover shall not be enforced, ought not to be permitted to deny that he received the money in satisfaction of a valid demand. The defendant paying the money may subsequently say: ‘I did not, and do not, admit that I ought to have paid anything; I was willing to buy my peace. ’ But the other party ought not to be allowed to deny that he had any right to the money, the payment of which he had induced under pain of the prosecution of an action already commenced. Tie should not be permitted to say, with any beneficial result to himself, ‘I pursued the defendant falso clamore, and I took his money by way of settlement of a pending action in which I never could have recovered.’ Shall it be said that plaintiff has not received compensation for the injuries she sustained, because she did not choose affirmatively to prove that the negligence of the party from whom she received the money contributed to the injuries?”

In the ease of Seither v. Traction Co., decided by the. Supreme Court of Pennsylvania, in 1889, reported in 17 Atlantic, 338, in the opinion of the case this language is- used:

‘ ‘ In the opening sentence of the printed argument in this case we find the following:
' ‘ ‘ The evidence offered by the plaintiff proves that while riding in a car of the People’s company he was injured by a collision due entirely to the negligence of the traction company; the carrying company and- its agents being absolutely without fault. ’ At the time this paragraph was written the plaintiff had in his pocket the sum of $6,000 which he had received from the company which he now says was ‘ absolutely without fault. ’
“A case so unique as this might be supposed to stand alone in the boobs. Tompkins v. Railroad Co., 66 Cal., 165; 4 Pac. Rep., 1165, is, however, its exact counterpart. ’ ’

The California case referred to is that from which quotation has been made in this opinion.

In the case of Thompson v. Railroad Company, supra, no mention is made of this ease of Seither v. Traction Co., but whatever holding we might make on this point, if the case required that it be decided, we hold that the plaintiff in this ease, as the pleadings stand, is barred .by the settlement made with Cooper & Co., for the reason that, under all the authorities, in order to recover, he must show that Cooper & Co. were not in fault. Since he must show this by evidence, he must allege it in his pleadings. This he had not done and it follows that the judgment of the common pleas was right and it is affirmed.


text:
    BAR AS TO BALANCE OF CLAIM.
    Circuit Court of Cuyahoga County.
    J. A. Snell v. The W. A. Banks Co.

    Decided, October 19, 1908.

      Talcing Judgment for Part of Amount Claimed — Balance Waived.

    In an action for the amount due at an agreed price for a carload of oranges, the answer alleged that the oranges arrived in a frozen condition and were not accepted; that notice of non-acceptance was given the shipper and that the fruit would be sold upon a commission basis, which was done, realizing less than the agreed price, which less sum it was admitted was due the plaintiff. For this admitted amount plaintiff took judgment and asked for trial as to the balance of his claim under favor of Revised Statutes, Section 5320; this was'denied him. Held: no error.

      David B. Carpenter, for plaintiff in error.

      White, Johnson, M'cCaslin & Cannon, contra.

       Affirmed by the Supreme Court without opinion, 83 Ohio State, 464.

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

concur.

J. A. Snell brought suit against the Banks- Company, setting out two causes of action. We are here concerned with the first cause of action only. As to that, the allegations of the petition are that Snell sold and delivered to the Banks Company a carload of oranges for the agreed price of $495, payable on delivery. To this the defendant answered, admitting that it made an agreement to take from the plaintiff a carload of oranges, at the price named, upon a contract that these oranges should be of the quality known in the trade as- fancy fruit, and that the same were to be shipped to it immediately. It avers that the goods were not shipped immediately, but were placed by the plaintiff in a car on the railroad track at Ozone, Florida, where he allowed them to remain for four days, and when the fruit arrived (presumably in Cleveland, though that is not averred), it was not fancy fruit but had been frozen and was of a grade at least 33 1-3 per cent, inferior to fancy fruit. Defendant says it did not accept such fruit as a compliance with the contract on the part of the plaintiff, but that it notified the plaintiff that it refused to accept the fruit, and that it would handle the same on a commission basis. It did sell the fruit and obtained therefore a sum, that, after deducting the commissions, left $152.34, which amount it admitted was due to the plaintiff. Thereupon the court entered judgment against the defendant and in favor of the plaintiff for said last named sum, and continued the case for further trial, on the motion of the plaintiff. At the next term of court the case was tried upon the second cause of action, and judgment recovered by the plaintiff, but the court refused to allow any evidence to be introduced on the first cause of action and rendered judgment thereon in favor of the defendant. It is urged that this action was erroneous, because of the provisions of Section 5320, Revised Statutes of Ohio, which, so far as it has any bearing on this case reads:

“When all or a part, of one or more of the causes of action are not put in issue by answer, judgment may be taken as upon a default, for so much of the plaintiff’s demand as is not put in issue by the answer upon any or all of the causes of action, without prejudice to the rights of the plaintiff as to that portion of his demand disputed.”

This section was originally Section 376 of the Code of Civil Procedure, and as amended March 13, 1872 (69 O. L., 44), reads, where the defendant “having answered to a part of the cause of action alleged, the court may, in its discretion, render judgment upon such part or parts as are not put in issue by such answer, ’ ’ It is further provided that the court may direct, as to the damages put in issue, that the same be assessed by a jury.

So far as the matter here is affected, there seems to be no substantial difference between the statute as it now is and it was prior to the amendment, for if the defendant in this case admitted that there was due to the plaintiff a fixed sum upon a part of his claim and nothing upon the balance, the statute would apply, but here the entire claim of the plaintiff was disputed. As creating any indebtedness upon the contract relied upon by the plaintiff the defendant says that the plaintiff did not furnish fruit in accordance with the contract, but that he did put certain fruit into its hands which was not in accordance with the contract and it was not bound to accept and did not accept, but that it did obtain for such fruit a specified sum, to which the plaintiff is entitled. It seems clearly to us that the admission by the defendant is not such an admission as entitles him, after having recovered a judgment upon the facts admitted, and accepted the same, to further litigate the question as to whether he performed the contract into which he entered. We regard the case of Weaver v. Carnahan, 37 O. S., 363, decided under the section as it was in 69 Ohio Laws, supra, as authorizing the conclusion to which the court below arrived, and this is strengthened by the ease of White v. Herndon, 15 O. C. C. Reports, 290.

The result is that the judgment of the court of common pleas is affirmed.