author: Day, J.

text:
    (Third Circuit — Allen Co., O., Circuit Court
    April Term, 1898.)
    Before Day, Price and Norris, JJ.
    THE BOARD OF EDUCATION, etc. v. JAMES B. TOWNSEND.

      Contract depending on continued existence of thing — Destruction as an excuse for non-performance—
    It is a general rule that, when a party voluntarily undertakes to do a thing without qualification, performance is not excused because by inevitable accident, or other contingency not foreseen and not provided against, performance becomes impossible. In general, a contract must be performed or non-performance compensated. As forming an exception to such general doctrine it is the rule, that when performance depends on the continued existence of a person or thing, and such continued existence is assumed by both parties as a basis of the agreement, the death of the person or destruction of the thing puts an end to the obligation.
    Samp.—
    An agreement: “Within sixty days to remove the present schoolhouse located on the south-east corner of said sec. 18, to a new site provided, and rebuild and reconstruct the said building so that it will be in suitable ana proper condition for school purposes,” falls within the exception^to the general rule, and the school-house having been destroyed°by a violent wind storm before the expiration of sixty days, performance is impossible and is excused.
    Error to the Court of CommonjPleas of Allen county.
   Day, J.

The plaintiff here, and in the lower court, prosecutes error to procure the reversal of a judgment rendered against it, in an action to recover a damage claimed to have resulted from a failure of defendant to perform his contract to remove and rebuild plaintiff’s school-house, situate in one of the sub-districts of Bath township, Allen county.

The facts of the case are agreed upon by the parties, and are: The said board of education,and defendant'Townsend, made an agreement in writing, on November 7, 1895, in which the said board agreed to make a proper conveyance of a strip of land, ninety feet wide, owned, occupied and used by it for school purposes and particularly described, on which was a school-house, to the Lima Northern Railway Company, on and over which to construct and|build its railroad. In consideration of suctTconveyance|for the use of the railway company, Townsend agreed to procure another school-house site near by, for the saidjboard, and to remove and re-build the said school-house on such.new site, and put it in such condition that it^would^be fit| forjjuse for school purposes; also to remove certain out-buildings, and do and perform other things, all of which was to be done and finished within sixty days from said November 7. The strip of land was at once conveyed to the railway company, and a railroad track was constructed upon and across it. Townsend procured the new site, had title thereto vested in the board of education, and done and performed all the other stipulations of his contract, to the satisfaction of the said board, except the removal and re-building of the school-house on the new site; and that condition of his contract he entirely omitted and failed to perform. On November 28, 1895, twenty-one days after the agreement to remove and re-build was made, the said school-house was, by a violent wind storm, blown down 'and completely destroyed, so that, as a school house, it could not be removed. Subsequently, and in the fall 1896, the boaird, after requesting Townsend to build a school-house and bis failure to do so, built a school-house on the new site, at an expense $1,319 — differing from the destroyed house in the particular of a cupalo, which cost $50.- — The old schoolhouse was so badly wrecked that it could not be removed and re-built; and a new one of the same size constructed of similar new material would cost $1,000. Prior to the wind storm, and until its occurrence, Townsend made diligent and reasonable endeavor to procure the removal of the house, but made no such effort after its destruction. The house was continuously occupied and used by the board, for purposes of the school,and was so occupied and used up to, and including the day before its destruction.

The plaintiff’s contention is, that notwithstanding the total destruction of the house by the wind storm, defendant is not excused from the performance of the contract, but is liable to respond, and must respond in. damages, because of non-performance. While the defendant asserts the claim, that the subject matter of the contract, the old school-house, was destroyed by act of God, without any fault of his, so that the contract with respect to the removal and rebuilding of the house, became impossible of performance, and in law and good conscience, he is excused and released from the obligations of it, in that regard.^

The question presented is an interesting one, and rather unusual, from the fact that it rarely arises. The precise question we have here has not frequently, if at all, engaged the attention of the courts of the state. If our court of last resort or any reviewing court of the state, has, at any time entertained and considered the proposition, or made any ruling with reference to it, the fact has not been brought to our notice, and it would seem that, so far as any reported adjudication by our courts is concerned, the proposition is a new and undecided one. The courts of last resort of other states and countries, however, have dealt with the matter, and reported cases there are in plenty, blazing the way and evolving a reasonable rule by which the rights of parties may be correctly measured.

It is a general rule that inevitable accident, or unavoidable casualty, making strict performance of an agreement impossible, does not absolve a man from his contracts. In general they must be performed or their non-performance compensated. There is an exception to this rule, as well established as the rule itself, that in contracts in which performance depends upon the continued existence of a certain person or thing,a condition is implied that the impossibility of performance, arising from the perishing of the person or thing, shall excuse the performance. The implication arises, notwithstanding the unqualified character of the promissory words of the contract, because, from the nature of the contract, it is apparent that the parties contracted upon the basis of the continued existence of the particular person or thing. To this effect is the purport of nearly all the decided cases. Mr. Beach, in the first volume of his work on the Modern Law of Contracts, sec. 217, clearly and concisely statesjthe rules of law obtaining in such controversies, as follows:

“The general doctrine that, when a party voluntarily undertakes to do a thing without qualification, performance is not excused because by inevitable accident or other contingency not foreseen, it becomes impossible for him to do the act or thing which he agreed to do, is well settled, But it is equally well settled th»t when performance depends on the continued existence of a given person or thing,and such continued existence -was assumed as a basis of the agreement, the death of the person or the destruction of the thing puts an end to the obligation. ”

It will be observed that the contractor is not excused from performance of his contract, as a matter of course, whenever performane]becomes impossible through the act of God, or inevitable casualty, but only m contracts in which such inevitable accident is expressly provided against",or the continued existence of the subject matter of the contract is assumed, by both the contracting parties, as a basis of the agreement; and the class to which a given contract belongs is to be ascertained and”determined, only, from an examination and consideration of the terms and stipulations of the particular contract.

Among the:|unforeseen happenings, effective to excuse the performance of a contract, are included extraordinary 'floods, storms of unusual violence, sudden tempest, sudden death and the like. They are said to be unavoidable, inevitable casualty, or act of God, and in proper circumstances, excuse non-performance of a contract. That is to say, the acts of the Almighty are not within the contract, and were not considered. The parties did not assume to direct or guard against the unknown and unknowable acts of God, but made their contract with reference to present existing conditions, mutually relying on a beneficient Providence, and hoping~for a continuance of the favorable conditions; and if the favor is withdrawn, it is the act of Providence, may be a calamity, to be 'deplored of course, but for which ■neither is to blame or to be held responsible. The periormance of the contract, in such case, becomes impossible •without the fault of either party, and is excused.

Does the case at bar fall within the general rule, or within' the exception so plainly stated? This, as has been stated, =must and does depend upon the nature of the contract in question. The precise wording of the contract with respect to •the removal and re-building of the school-house, is as follows:

“Said James B. Townsend further agrees within said time (60 days), to remove the present school-house, located ■on the south-east corner of sec. IB, * * * to the above described premises (the new site) and re-build and re-con.-struct the said building so that it will be in suitable and proper condition for school purposes, * * ”

From a careful reading of this provision of the contract, it is quite apparent that both parties assumed and relied on the continued existence of the school-hoisse,and neither one contemplated, much less provided against its destruction, or stipulated for or against liability to make compensation as ■damage, in the event of its ceasing, from any cause, to exist. The contract is for the removal and re-building of a ■particular school building — -the one situate on the southeast corner of sec. 18. No other ^building was then in contemplation or consideration. They could as well have provided for the removal and reconstruction of some other building —of a building — or the construction of a new one, if such was their agreement. But not so. Reasonably construing the contract, both assumed and presumed the school building, desired and necessary to be removed, would continue ■to stand and exist as a school-house, and they-made their contract for its removal and re-building, so it would be in proper condition for school purposes; and, under the rule stated, this manifestly belongs to the group or class of contracts which form an exception to.the general rule,in that, the continued existence of the school-house as a distinct entity was assumed, by both parties,as a basis of the agreement, and its destruction having been wrought by inevitable accident or act of God, for which neither one is to blame, the performance of its stipulations is impossible, and is excused.

Cable & Parmenter, for Plaintiff.

W. B. Richie, and W. H. Leete, for Defendant.

We perceive no error in the record, and the judgment is. affirmed, with costs.


source: Caselaw Access Project

author: Haynes, J.

license: Public Domain

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1898.)
    Before King, Haynes and Parker, JJ.,
    LEROY WELEVER v. THE I. H. DETWILER COMPANY and GEORGE K. DETWILER.

      Statute of Frauds — Contract for earth to he removed from lot~

    A contract for the mere removal of earth for a certain money consideration is not within the statute of frauds. But where it appears from the evidence, that the main consideration was not the-price to be paid for the removal, but to get the earth to be removed, to be re-sold or used in executing other contracts for filling lots, so that the substance of the contract was the earth itself, then such contract is within the statute of frauds.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

A petition in error is filed in this court for the purpose of reversing the judgment in the court of common pleas in an action brought in that court wherein Welever was plaintiff and the Detwilers were defendants. Suit was brought by Welever against the Detwilers for the recovery of a certain price agreed to be paid for the removal, it wa& alleged, of' certain earth from a lot. Issues were joined by way of denial in the case, and upon the trial of the case, at the conclusion of the evidence, the court directed the jury to return a verdict in favor of the defendants, and the ground of that direction was, that the contract proved upon the trial of the case was within the statute of frauds- — -the testimony showing that the whole agreement was oral.

In order to get at a proper understanding of the case and* the proper application of the principles of law, it will be necessary to read the petition in the case:

“For cause of action against the defendants,plaintiff says-that he entered into a contract with the defendants to remove a bank of earth then and there being on certain lots-fronting on Euclid Avenue, East Toledo, Ohio, between Third and Fourth streets. By the terms of said contract, plaintiff was to receive from defendants the sum of $50 for the removal of the said earth.”

Now it will be seen before we get through, that there is-no statement that the earth, in any manner or form, should belong to the plaintiff.

“After entering into said contract with the defendants, plaintiff says that he bargained with two owners of property-located near said bank,to-wit, one Frank Hake and one D. Harpster, to receive from them $25 for the removal of said' bank of earth.

“Plaintiff further alleges that prior'to entering into said contract with the defendant, he had contracted and agreed with one G. H. Hartupee to procure and haul the necessary earth to fill certain lots owned by him in East Toledo near the bank of earth aforesaid. And by reason of said contract with said Hartupee, this plaintiff did go to the defendants- and enter into a contract with them as aforesaid for the removal of said bank of earth, in order to use the same in filling the lot of G. H. Hartupee as aforesaid,’

“ Plaintiff further says that, having thus made all his-arrangements to remove the said bank of earth, and being-able and prepared.to do so, the defendants, in utter disregard of their contract with the plaintiff, refused to allow or permit the plaintiff to remove the said bank of earth, and have thence hitherto persisted in the breach of their contract by so refusing to allow the plaintiff to remove said earth. And so it was that the plaintiff was compelled to procure-■earth at another plage some distance farther from the said lot of G. H. Hartupee than was the said bank of earth of ■•defendants, and was compelled to dig and haul the same at great cost and expense to plaintiff over what he would have been compelled to pay had defendants fulfilled their said • contract.

“Plaintiff was also put to much time and expense in finding the said earth with which to fill said lot of said Hartupee in order to fulfill his contract with him.

“Plaintiff is further damaged by reason of the breach of ■said contract by defendants, in that he had contracted with •one Harpster for a large amount of earth, to-wit: 513 wagon loads, which cost plaintiff to haul and deliver to the .■said Harpster six cents per load more than it would have cost had said defendants fulfilled their contract, and allowed and permitted plaintiff to remove their said bank of earth as ■aforesaid.

“An itemized account of the loss and damage sustained by plaintiff by reason of the said breach of contract by the defendants, is hereto attached, marked “Exhibit A” and made a part hereof, the full amount of the same being ■$410.83.

“Wherefore plaintiff prays judgment, etc.”

It will be observed that nowhere does the pleader state 'that he had informed the defendants in any manner or form of the purposes for which he intended to use this earth, or •that he was to use it to fulfill any contracts whatever. The work was never done, and, although the question is not ■raised, it seems to me that the petition does not state a cause of action against the defendants. The bill which he makes up for this work is as follows:

-Contract price with Detwiler, $50.00

"Contract price with Frank Hake and D. Harpster, 25.00

Cost to fill lot of G. Hartupee, shovellers and teamsters, $542.95

Lost time of self and son, 42.00

•Labor of self and son, 144.00

$728.95

Credit:

Gash from Hartupee, $398.90

Gash from Worall, removing eartb, 25.00 $423.90

Loss on job $305.05 $305,05'

513 loads of earth toHarpsterat six cents a load extra cost, 30,78'

Total damage, • $410,83-

In his testimony, which is given in the case, plaintiff states that he went to the Detwilers and told them that he-wanted to get this earth, and that they had some talk in regard to the matter, and Detwiler agreed to meet him later upon the premises. They then met upon the premises,and* he claims that Detwiler agreed to give him $50 to remove-the earth. There was a dispute between them, however, as to whether a certain privy which stood upon the premises should be removed also by Mr. Welever, and upon that incident of the agreement they divided, and the contract was given to another. But he states in his testimony in regard to it as follows:

“Q. Did you tell him anything about your making an-arrangement to put this earth elsewhere? A.- Yes, when he says to me, ‘You can commence on there in ten days, or as soon as I get back, in ten days, I will move the house, give the job to a house mover. ’ Well, now,’ says I, ‘1 want to make a contract with another man: I want to be sure I-will have the placing of this earth’. He says, ‘Whatever, you like, do whatever you like with that bank, but the earth is yours, now, cut it down until I tell you to stop, put it where you like, make any contract you want to, this bank is yours, ’ ‘I know I am not mistaken: it is yours.’ Then-I went and made by contract for this bank of earlh to put it, into this hole. ”

-Now," if this was a mere contract to remove the earth,perhapsno question would be raised as to whether it was; within the statute of frauds. But we are clearly of the ■opinion, from the statement made by plaintiff as a part of his testimony, that the consideration of fifty dollars for removing the earth was a small part of his contract, and the real thing that he expected to obtain was earth, as a part ■of this lot. It was out of the earth itself, which was to be his, that he expected to make his profit by re-selling it or using it in refilling other lots, for which he was to get a -compensation. So that we are constrained to hold that the substance of the contract was the sale of the earth itself- — • the fifty dollars to be paid him for removing it was simply incidental, and not the main consideration of the contract,

Now, whether this is within the statute of frauds, we think is a question that is very largely decided for us in the case of Hirth v. Graham, 50 Ohio St., 57, recently decided by the supreme court of this state. In that case the question arose in regard to the sale of some standing timber— whether or not the sale was within the statute of frauds. 'The court say, in the second syllabus:

“A sale of standing timber, whether or not the parties contemplate its immediate severance and removal by the vendee, is a contract concerning an interest in lands, within the meaning of the statute of frauds, and is voidable by either party if not in writing.”

That case was first tried before a justice of the peace,and came up from that court. A request was made to the justice to instruct the jury that “if they find from the evidence that the trees about which this action is brought were at the time of said alleged contract then growing upon the land of defendant, and that no note or contract or memor•andum of the contract of sale was at the time made in writing, the plaintiff cannot maintain this action, and your verdict should be for the defendant”; which instruction the justice refused to give, but on the contrary gave '■them the following instruction on the subject:

“This is an action for damage, not on the contract, nor to enforce the same, and if you find that a contract was made verbal or otherwise, and the defendant refused or failed to comply with its terms, the plaintiff is entitled to any damage you may find him to have sustained by way of •such non-compliance. ”

There is quite an extensive opinion by Bradbury, Judge, the announcement of the opinion of the court occupying ■seveial pages, and the question is very fully discussed as to whether the statute of frauds is applicable to a case of that kind, that class of cases. It is shown that in some states of this Union the courts hold that the statute of frauds is not applicable; but in a large majority of states the statute is applicable, and the opinion proceeds to say:

“The question is now for the first time before this court for determination; and we are at liberty to adopt that rule on the subject most conformable to. sound reason. In all its other relations to the affairs of men, growing timber is regarded as an integral part of the land upon which it stands; it is not subject to levy and sale upon execution as chattel property; it descends with the land to the heir, and passes to the vendor with the soil. Coal, petroleum, building stone,and many other substances constituting integral parts of the land, have become articles of commerce, and easily detached and removed, and, when detached and removed,become personal property, as well as fallen timber; but no case is found in which it is suggested that sales of such substances with a view to their immediate removal, would not be within the statute. Sales of growing timber are as likely to become the subjects of fraud and perjury, as are the other integral parts of the land, and the question whether such sale is a sale of an interest in or concerning lands,should depend not upon then intention of the parties, but pp on the legal character of the subject of the contract, which,in the case of growing timber,is that of realty.”

See also unreported case of Lithgow v. Shook, 39 Law Bulletin, 39.

Now', holding this to be a sale of a portion of the real estate, a sale of a portion of the land itself, we are clearly of the opinion that it falls within the statute of frauds, and-that the contract being verbal, no recovery could be based upon it, and the court of common pleas was therefore right in directing the jury to return a verdict in favor of the defendants, and the judgment of the common pleas will therefore be affirmed.

Surd, Brumback & Thatcher, for Plaintiff in Error.

King & Tracy, for Defendant in Error.


author: Adams, J.

text:
    (Fifth Circuit — Stark Co., O., Circuit Court
    Feb. Term, 1898.)
    Before Adams, Douglass and Smyser, JJ.
    B. DANNEMILLER & SONS v. HENRY LEONARD & SON.

      Evidence-Conversation by telephone — Competency of one listening, to conversation—
    Where a conversation by telephone is carried on by the parties to an action about the subject matter of the action, and there is an issue as to what was said between them, a witness who heard' one of them talking into the telephone, may testify to what he-heard.
    Error to the Court of Common Pleas of Stark county.
   Adams, J.

(Orally.)

The case of B. Dannemiller & Sons against Henry Leonard & Son is here on error. The plaintiff in error was the plaintiff below, and the case was commenced by the filing of a petition in the short form on an account for $733.99. The answer first contains a denial of the indebtedness, and on that, for obvious reasons, nothing could be claimed. The answer further alleges, in brief, a payment on the account on December 29th, 1896, by a note of D. Tyler for $550.40; claims that amount should be credited on the account, and admits a balance due of $183.59, and no more, and for the amount admitted to be due, the defendants afterwards offered to confess judgment.

The reply admits that the parties agreed to receive the note as a payment; and the note, in fact, about which the controversy arises, was a forty day note, made by D. Tyler, payable to the order of Henry Leonard. But the reply further states that they agreed to-take that note as a payment, with the further agreement that Henry Leonard should endorse the note in the ordinary commercial way; but says that shortly after the receipt of the note the plaintiffs discovered that it was endorsed by Henry Leonard “without recourse”, and that that-endorsement was fraudulent, and in violation of the contract, and that they elected to rescind the contract and returned the note, and denies all other allegations of the answer.

It may as well be noted here that there are no other or further allegations of fraud, except that tney say that this endorsement was fraudulent — -“without recourse. ” There are no facts alleged from which the inference of fraud could be drawn; but the reply does allege a breach of the contract.

The case was tried on these issues, and resulted in a verdict for the plaintiff for an amount somewhat less than the-amount for-which the defendants offered to confess judgment — one hundred and eighty some dollars.

The plaintiffs prosecute error here, and insist this judgment should be reversed, — -first, for error in the exclusion of evidence, (2) error in the charge, and (3) that the verdict is not sustained by sufficient evidence.

The controversy here, and the fact to be determined by the jury, and to be reviewed by this court, as to the weight of the evidence, depends entirely upon the evidence of Julius Dannemiller and Henry Leonard. Henry Leonard testifies that the contract was that Dannemiller & Sons were to take this note of D. Tyler as a payment. He says-that nothing was said about endorsing it “without recourse”, but that he told them that if they preferred Tyler to him, they could have the note.

Dannemiller testifies that it was stated explicitly to Henry Leonard that he must endorse the note, and that “he knew what that meant — that if Tyler did not pay the note, that he must. ”

That is denied by Leonard, and as we view this case, that was the only controversy between the parties as to what the real contract was; although there might have been another controversy as to whether Dannemiller knowingly accepted the note with the endorsement “without recourse” thereon, and thereby agreed to a new and a different contract from the one which he testified to.

So-that, there being this conflict of testimony, and it depending almost entirely upon whether the jury would believe Julius Dannemiller or Henry Leonard, it is clearly not a case where a reviewing court can say that the verdict is clearly or manifestly against the weight of the evidence.

This charge is long, and there are numerous exceptions to it, but we have examined the charge carefully, and while in the trial of this case and in the charge there was perhaps too much said about the question of fraud (because we think that there was no real allegation of fraud in the pleading), yet, after a careful examination of this charge, we think that the charge stated the law correctly as the case was tried between the parties.

The other error, in the exclusion of the evidence, occurs on page 36, as to the testimony of Louis it. DeVille. Both Dannemiller and Leonard testify that one or two conversations that they, had were over the telephone. That is, Dannemiller was in the office of Dannemiller & Sons using the telephone there, and Leonard was at the other end •of the line. Both agree that there was a conversation, and •disagree ss to the terms of that conversation, as to what was said by the respective parties to the conversation.

Louis R. DeVille testifies that he was in the office of Dannemiller & Sons, and we think he identifies that telephone conversation with sufficient certainty, so that there ■can be no reasonable doubt that he was present, if his testimony is to be believed — that he, was present in the office of Dannemiller & Sons at the time that Dannemiller was talking to Leonard over the telephone.

Now he is asked to testify as to what Dannemiller said into the telephone at his end of the line. Of course, he ■could not hear, and he does not attempt to state what occurred at the other end of the line, nor. does he attempt to' repeat what Dannemiller said had occurred at the other end of the line. But the attempt is made to show by him what Dannemiller said; and the offer to prove by him is that Dannemiller said into the telephone, in that conversation, that “this note is to be endorsed by you, you know what that means,- — -if Tyler does not pay it, you must.” Now -the question is whether that testimony is competent or not;' and if competent, is it material.

- The case in 153rd Illinois, page 262, and I need only •read the second paragraph of the syllabus, — says:

“It is not error to permit a by-stander in a telephone office to testify to the part heard by him of a conversation by telephone, such conversation being shown aliunde to have been between the parties to a suit, and upon the ■subject-matter thereof. ”

Leonard testifies that this conversation was about the subject-matter of the suit. Dannemiller testifies that it- was about the subject of the suit, and each gives his ■version of that conversation. DeVille testifies that he •was .there, and he heard Dannemiller’s part of it, and the offer is made to prove by him what Dannemiller said. We think that on the authority of this Illinois case, and upon the reason of the matter, that t'he testimony is competent.

By way of illustration, if you leave out the connection by the telephone line, and have Dannemiller and Leonard in adjoining rooms so that they are not visible to each other, but the sound of their voices could be heard between them, and have DeVille in the room with Dannemiller where he-can see and hear Dannemiller, but cannot see or hear Leonard, and you have Leonard and Dannemiller admitting that they were talking to each other at that time,and DeVille testifying to wbat Dannemiller said,we think that would simplify the matter by leaving out the telephone connection,, clearly DeVille’s testimony tends very strongly to corroborate the testimony of Dannemiller as to what that conversation was. Where there is a dispute between Dannemiller and Leonard as to what was said there, we think the evidence waB competent. And it was material; in the state of this proof, where the case turned upon whether Dannemilier told the truth, or whether Leonard told the truth, or which one the jury would believe, we think that it was a very material matter. It might have changed the verdict in this case. And, for the error in the exclusion of' that evidence, and for no other error, the judgment of the court of common pleas is reversed, and the cause is remanded for a new trial.


author: Norris, J.:

text:
    Third Circuit — Defiance Co., O., Circuit Court
    March Term, 1896.
    Before Day, Price and Norris, JJ.
    HENRY SUHR v. S. W. HOOVER.

      Court limiting argument to jury to subjects averred in pleading-not error—
    (1.) It is not error for the court to limit the held which might be covered by counsel in their address to the jury, to the matters averred in fhe pleadings — in this instance, an action on promissory notes, where not mere failure, but utter want of consideration was set up as a defense, to confine them to the claim of total; want, and not mere failure, of the consideration.

      Holder of notes acquired before maturity for value, lmowing_ the consideration therefor, which is found without substance, not innocent holder—
    <2.) The holder of notes acquired before maturity for value, who has full knowledge of the pretended considerations for which they were- executed, which considerations are found of no substance, if not a fraud, is not an innocent holder, and can not enforce payment.
    Error to the Court of Common Pleas of Defiance county.
   Norris, J.:

The defendant in error was the plaintiff below, and commenced his action to recover on two promissory notes executed by the plaintiff in error, to one W.P. Place, or bearer'; one for $250, due four months after date, and one for $225, due six months after date, each'dated April 2, 1895, and bearing interest at 6 per cent, per annum. And he filed his petition in the trial court founded upon these evidences of indebtedness.

To this petition defendant filed his answer and amendment thereto,and denies each allegation of the petition, and as a further defense to plaintiff’s action, he says that bis signatures to said notes were obtained by misrepresentation ■made to him and by fraud practiced upon him by Place,the ¡payee, and Hoover, the present holder and plaintiff in this case. That they represented to him that they owned certain secrets useful in the treatment of Hernia,and that if defendant Suhr and one Charles Hubbard would execute their ■notes for $675, they would sell them the exclusive right to use said treatment in Defiance and Henry counties, and would furnish them, free of charge for one year, a certain ■medicine used in the treatment of Hernia, of which medicine Place was the sole manufacturer and owner, and would furnish full printed instructions fully informing them as to how said system of treatment should be practiced; and after the expiration of one year, furnish them with said medicine at the price of $3 per fluid ounce. Hubbard was a practicing physician, and upon these representations and .promises, and upon the representations made by Hoover and Place that under this system of treatment and by the us© of this medicine, there would be no cutting, no pain, no danger to life, no detention from usual occupation, that after cure there would be no necessity to use a truss, and that the cure would be radical and complete — upon these representations and promises made by Hoover and Place, and relying upon them, defendant Suhr and said Hubbard signed a contract which, in substance, embraced these provisions in its terms, and that in compliance w'ith said contract,and relying upon said representations, defendant executed the notes set out in the petition.

Defendant says, that all these representations were false; that said system of treatment is very painful and attended with great danger to life; that said system of treatment did ■detain the patients from their occupation, and did not effect the cure of Hernia. In short,that the representationss were false; that said treatment was without value, all of which Hoover, who defendant alleges was a party to the conspiracy to defraud him and procure said notes, and said Place well knew, and of which he was ignorant, and upon the truth of which he relied, and that hence his notes upon which plaintiff seeks to recover, were without any consideration, all of which plaintiff knew when he took the notes,and that to suffer the plaintiff to collect the same would be a fraud upou his rights.

To these averments of defendant’s answer and amendment, plaintiff replies and makes general denial, and avers that he bought these notes before maturity for value and without notice of the infirmities alleged in the answer.

The issues thus made up were submitted to a jury in the common pleas court of this county, which resulted in a verdict for the plaintiff. Defendant’s motion for new trial was not allowed. Judgment was entered upon the verdict,. a bill of exceptions was taken to the .proceedings of the court below,and error is here prosecuted to obtain reversal.

The reasons assigned for reversal, embodied in the motion for a new trial aüd in the petition in error, are:

“That the verdict is against the weight of the evidence and contrary to the law of the case,

“Error in admitting evidence over defendant’s objection and in the exclusion of evidence offered by the defendant.

“Error in the charge to the jury.

“Error in overruling the motion for a new trial.”

And the defendant also complains that the trial court abused its discretion in certain criticisms of the answer made in presence of the jury; ana it erred in refusing to allow defendant’s counsel to address the jury upon evidence other than such as bore upon the failure of consideration pleaded in the answer.

The court, upon objection being made to the introduction of testimony sustaining the matters and things pleaded in defendant’s answer, by way of substantive defense, refused to allow the case to proceed upon the pleading as it then stood, and remarked,in substance, that the allegations of the answer as to misrepresentations and fraud as therein pleaded were not sufficient to bar a recovery or to sustain the -admission of evidence. And this in the presence of the jury.

These remarks of the trial judge were criticisms of this pleading; they were made before the testimony had proceeded to any length.at least upon defendant’s case. They did not go to the merits of the controversy,and were not in a spirit of hostility to the defendant or his cause, and so far as we can see, in no wise were to his prejudice in the determination of the case. The court promptly allowed amendment. We see in this objection no serious cause to differ with the court below.

As to the limit put by the trial court upon the field that might be covered by defendant’s counsel in their address to the jury, we see in this nothing prejudicial, because by it the subject of comment was only circumscribed by the horizon of the case. The proposition, not only of failure, but entire want of consideration for the notes in suit, as pleaded in the answer and amendment, was a theme upon which counsel, if they saw fit, could point a moral or adorn a tale to their heart’s content. And nothing is revealed by the record that would indicate that counsel wrapped their faces in their mantels,or-at all retired from the combat.

We have read this record very carefully, every word of it, and we have failed to find error in the admission or rejection of evidence.

And now coming to the objection that the verdict is not sustained by, but is contrary to the weight of the evidence, and is against the law of the case. This assignment of error brings up in review everything upon which Mr. Hoover’s right of recovery is grounded. It directs the attention of this court to the consideration of the notes upon which recovery is sought, and challenges the construction of the contract, which recites the reasons, and values, and the considerations for which the notes were given. The contract is in evidence, and upon it depends this case. The contract is a pretty skillful piece of fine printing, The Wilcox Hernia Co. was a concern located at Binghampton,New York — so says the contract, I quote from it, “and'W. F, Place was the owner” — Place, as such, was the owner of certain useful secrets in the treatment of Hernia or rupture, and he was the sole manufacturer of a certain remedy used in and about this treatment of that complaint. Suhr, this defendant, and Hubbard, were desirous of purchasing the exclusive right to use this treatment, and in consideration of 1675,part of which is evidenced by the notes in suit, Place, as the owner of the Wilcox-Hernia Co., agrees to grant, bargain, sell and convey to defendant Hubbard, the exclusiv.e right to use this treatment in Defiance and Henry counties- That is the contract. As an incident and condition of this agreement, the Hernia Co. agrees to furnish the defendant and Hubbard with full printed instructions for practicing this system, and without charge agrees to furnish for the period of one year,-whatever of this medicine might be -required in the treatment of cases. And will,says the contract,after three years,furnish the medicine or fluid at $3.00 per fluid ounce, and will not furnish the fluid to anyone else in this territory, nor practice said system of cure in these counties. And as a further consideration, and for this, the second parties agree to practice the system and use the fluid only in those counties, and agree to use diligence and care in the treaiment of cases, and further agree — not to pay any more money — 'but to execute their notes, upon the delivery of the contract, as the evidence of the purchase price which they agree to pay, for the exclusive privilege of practicing the' system of treatment in these counties.

Now, what did this defendant and Hubbard buy with this $675? They bought no secret, for no secret was ever revealed to them. Not a year’s supply of medicine, for that .was not the system of treatment, but a mere incident of the system of treatment, For the gratis medicine they were to use diligence and care in the practice of the system, and make a market for fluid at $3,00 per ounce; and were to execute their notes as evidence of the full purchase price agreed in the contract,for the right given to exclude others from alleviating, by the same system, the sufferings of their kind, and not for the payment of the notes,but for the purpose of these latter stipulations, they give a bond of $1,000.

They got for their $675, what was represented to them, •and what is solemnly declared in the contract to be a valuable and a secret and an exclusive method of cure, in the mysteries of which they were to be initiated, and in the practice of which they were to be educated, and made wise-by the full printed instructions of the Wilcox Hernia Go. And the contract pretends to give them the sole control over the territory, and the exclusive right to use the system therein.

Now, of what did the system for which they agreed to pay $675 consist? It consisted of subcutaneous treatment of Hernia, with an ordinary hypodermic syringe, and of nothing else. Was it a novel method of treating that affliction? No, it was nearly as old as the cesarean birth.. Was it secret? Far from it; a physician who knows not of it is away outside of the most venerable upon surgery and specialties-. Is it patented? No. What right,exclusive or otherwise,was acquired by this purchase to practice this system of treatingrupture? No right. By What authority could the Wilcox Hernia Oo., of Binghampton, N. Y., vouchsafe to defendant or to Hubbard the exclusive right to do these things in Defiance and Henry counties, Ohio? By no authority whatever. What then was bought with this $675?' Nothing, not a thing in the world. And even if it were that which could be parted with, the record shows that defendant and his colleague received no printed instructions, and no formula.

At the time this contract was signed and these notes were-given Hoover was in the Hernia combination himself. His office appeared to have been the headquarters of Place, as it was of Allen and Griffin, and others who were engaged in the practice of this system, or were lay members of a syndicate, the object of which was to push the method.

Hoover had bought territory of Place three months before the date of these notes. They, Hoover, Allen and Griffin and others, were all present when this deal was made. Hoover knew all about the consideration of these notes; he knew all about this Hernia-Wilcox combination, He says the system was not new, was not patented, was not a secret. Of the fluid, the formula of which he swears he knew and refused to give from the witness stand,.he don’t say it is-new or the best, but merely designates it as pretty good¡ fluid. And with all this knowledge of this transaction fromi its very inception,standing as he did as godfather to it,how could he be an innocent holder of' these notes? He surely could not, and we so find. The notes were without consideration,and he knew it when he acquired them. This being the case, we find that the verdict is not supported by the-weight of the evidence, but is contrary to the evidence, and against the law of the case.

John W. Slough and B. B. Kingsbury, for Plaintiff in* Error.

C. A. Boioersox, for Defendant in Error,

And in the face of the contract as'we have considered it, we find that the charge of the court, which is otherwise full' and complete, in so far as the jury were instructed that this contract imputed a consideration for the existence of these notes, was misleading.

The judgment is therefore reversed and a new trial is-granted at costs of defendant in error, and the case is remanded to the common pleas for execution and for further proceedings.


author: King, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1898.)
    Before King, Haynes and Párker, JJ.
    THE PHOENIX INSURANCE COMPANY, of Hartford, Conn., v. CHARLES ROMEIS.

      Fire insurance — Appraisement of loss claimed to be void — Direct action on policy proper—
    (1.) In. an action against an insurance company for the amount-which it should pay on account of a loss by fire which loss--had been appraised by appraisers as provided by the policy, but which appraisement,[the'insured claimed, was improperly made and void, the action was correctly brought upon the policy for the whole amount it was claimed the company was liable to pay

      Same — Action to have appraisement set aside not necessary— •
    <(2.) In such a case it is not necessary by a separate action,or a separate cause of action, in the petition, to first attack and seek to have the appraisement-set aside by the court.

      Appraisement — What will not amount to—
    .(3.) The property injured was a stock of goods, some of which were entirely, and others, partly destroyed. Held, the appraisers could not make a proper appraisement of the whole loss by a mere inspection of the stock remaining, nor without consulting books and papers, and hearing witnesses upon values of the articles destroyed.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

June 22, 1896, defendant in error was insured by the Phoenix Insurance Company for $2,000. June 28, 1896,a .-fire injured the stock of goods insured and destroyed a part. There was other insurance upon this stock of goods amounting to $5000. A suit was brought in the court of common pleas to recover of the Phoenix Insurance Company a two-•seventh part of the loss alleged to be $1901.42, with interest from October 26, 1896.

To the petition there was an answer, and a reply to the •answer. Afterwards a trial was had at the September term, 1897, which resulted in.a verdict for the plaintiff for :$2010.94, upon which verdict a judgment was rendered for 'that amount,after the overruling of a motion for a new trial, ■and the case is brought here, and we are asked to reverse •that judgment.

We have given quite an extended consideration to the -case, because it involves a great many questions, and some ■of them important ones. The variety and number of exceptions in the record will preclude our noticing them in detail. Those which we deem it necessary to notice, may (be classified as follows:

“1. It is claimed that there was an appraisement entered into by the parties under this policy, the result of which binds both, and that an action could not be maintained upon the policy until the appraisal was first set aside, in a separate action, or by a separate cause of action included in the same petition, and hoard and determined by the court before and apart from determining the other issues of fact in the case.

“2. That the court erred in permitting evidence to be offered under the petition as drawn attacking the appraisal, and in submitting this evidence to the jury along with the other issues in the case,

“3. That the verdict as returned by the jury upon that question, is not sustained by the evidence.

“4. It is claimed that the plaintiff should not have recovered because he had not complied with certain conditions of the policy precedent to the right to maintain an action- — - that is, that he did not make proper' proof of loss as required by his policy; and next, that he did notsubmitto an examination under oath, nor produce his books and papers, as required by the terms of the policy.

“5. That improper evidence was'admitted on the part of the plaintiff below,

“6. That the court erred in its charge to the jury.

“7. That the amount of the verdict returned by the jury is excessive. ”

1. Taking them in the order I have named, the first question arising is, whether the pleadings have properly presented the issue which the court heard and submitted to the jury. The petition alleged the loss, the issuing of the policy, the fire, the amount of the loss; failure of the company to pay; that plaintiff had duly performed all the conditions on his part, and asked for judgment.

The answer of defendant admits the issuing of the policy', the amount of their insurance — substantially as it was in the petition; admits that a fire occurred, and that the stock was damaged. 1

It denies the other allegations of the petition, and alleges as a third defense, that the policy, contained •a condition whereby it was agreed that in the «vent of disagreement as to the amount of loss, the amount should be ascertained by two competent and disinterested appraisers. It quotes that item of the policy, and then alleges that a disagreement did arise between the parties, and that the plaintiff and defendant entered into an agreement in writing — -and which agreement also included the other insurers — for submitting to appraisers the amount of this loss; that thereupon the plaintiff appointed a person and the ■defendant appointed another to act for it and the co-insurers; that the agreement was signed, and thereupon the persons named entered upon the discharge of the duty of appraisal, and did appraise the loss, which appraisement they signed and duly verified.

The answer alleged that they found the amount of damage to this stock of goods to be $2660.77. It does not say anything further about the amount, but if it were carried out it would be found that upon that the plaintiff would be «ntitled to recover about $760.22, with interest from the date named in his petition, which would perhaps make ■about $800 all together.

To this answer there is a reply conceding the allegations contained in the answer: that there was this provision in the policy; that the parties had entered into an agreement to appraise this property, and going on further to say that the appraiser selected by the Insurance Company was incompetent, interested, prejudiced and biased, and setting up several other things as objections to him, and alleging that "they did not return a proper, fair, true or just appraisement, that the appraisement was invalid for these reasons, and -ought to be set aside.

It is said, as I have before suggested, that this ought to have been the subject of a separate action, or brought as a •separate cause of action, and first determined in this case. A great many authorities have been cited by counsel on both sides, which we have examined, and have come to the •conclusion upon that question that this action was properly brought. We do not decide or hold that it might not have been differently brought, and properly so. We would not undertake to hold that it would not have been proper pleading for the plaintiff to allege in his petition the making of the appraisement and the award of the appraisers, and then assert that it was invalid for the reason assigned, and ask •to have it declared invalid and set aside. There are cases that have proceeded on that line, in states adopting a system of pleading like ours, 137 N. Y., 137, (Bradshaw v. Insurance Co.),but there is no decision on the precise point of pleading contained. There are- some cases that are somewhat in point on the subject, and we are disposed to follow them. The first I refer to is a case found in 16 Washington Repts. 232, (Davis v. Insurance Co.). Action was brought, as in this case, and the answer'was the same -as in this case, followed by a reply attacking the ward of the appraisers. This, the court held was entirely proper. I have not time, and it would not probably be profitable, to read from that very interesting case, but -many authorities are cited, deciding the question squarely. One in 67 Federal Reporter, 483, (Kahnweiler v. Ins. Co.) decided by the Circuit Court of Appeals, District of Kansas, is an interesting case; and the decision is sound, as we view it. There is a case in 68 Federal Reporter, 173, (Robertson v. Scottish Union, etc. Ins. Co.), along the same line, in which they distinguish certain cases in New York and North Carolina from a case decided in Virginia, but holding that in Virginia, under the'fpractice there prevailing — the common law system of pleading — -that •a separate action would be required. To^the®same¿effect is a case in 85 Iowa, 6 (Adams, Admr. v. Ins. Co.), although the question is not squarely determined as to the matter of pleading; but in tüat case the action was as in the case at bar, and the defense set up in the answer that the matter had been adjusted by appraisers, and that the plaintiff had no cause of action upon the policy and it was insisted that he could not recover upon the policy because there had been an appraisal, but the court held that he could. To the same effect is 140 Mass, 343, (Soars v. Ins. Co.), and I think it a very pointed case upon this question. There they hold that in an action where it was claimed by the plaintiff that the action of the appraisers was for any reason invalid so that the appraisement would be set aside by the court, that it might be so treated by the plaintiff, and that the action was properly brought upon the policy,and not upon the award of the appraisers, and, on page 345, the court say:

“The jury have found that the award which the defendant relies on is invalid. It can therefore have no effect upon the rights of the parties.

“But if it had been a valid award, it could not, as contended by the defendant, prevent the plaintiff from maintaining his suit upon the policy. The award has reference merely to the damages. The agreement of submission merely refers to arbitrators, the appraisal and estimate of the damage by fire to the plaintiff’s property,and expressly provides that the award shall have no reference to any other question or matter of difference, and shall be ‘of binding effect only so far as regards the actual cash value of, or damage to, such property.’ A valid award under this submission might be evidence of the damages in an action upon the policy; but it is too clear to admit of any discussion that the only action of the plaintiff must be upon the policy, and not upon the award.”

Perhaps in that case the award would not have the same effect as it would have had in this case if it had been valid, but the authority, I think, is very pertinent to this question; so that we can hold, based upon good authority, that the action was properly brought. The defense came in properly in the answer, and the attack upon the award is placed in the reply.

2. Now, under this condition of the pleadings, the court might well have allowed the proof to follow the order of the issues made by the pleadings. But, upon the trial, the court required the plaintiff, in order to attack this award of the appraisers, to offer his evidence bearing upon that point in connection with his other evidence in making out his case. There was no error committed by the court in that order — certainly none to the prejudice of defendant; it simply required of the plaintiff to putin all the testimony that he had bearing upon all the issues in the case, in the first instance, and the defendant then would have the advantage of knowing what that evidence was, and could then answer. In this connection it is said that the court erred in submitting that evidence to the jury; that, although the pleadings might be proper and it be entirely correct to attack this award in an action brought to recover for the amount of the loss, yet the question of validity should have been determined by the court,and not submitted to the jury. We think the court might have determined that. But, again, its action in submitting the question to the jury, could not, by any process of reasoning, be prejudicial,since the evidence submitted to the ]ury was also submitted to the court, and the court, in passing upon the motion for a new trial, necessarily passed upon these issues, so that it was passed upon twice' — 'the defendant had two tribunals to decide the question rather than one, and one of these is the one which it claims should have heard and determined it alone. The statute, sec. 5131, as well as the principles of practice.in courts of equity allow the court to submit any question — any issue of fact — to a jury. We hold that there was no error in submitting this question as it was submitted to the jury.

3. This brings us to the question whether this verdict, upon that point, is sustained by the evidence? We are constrained to hold that it is, We could not hold otherwise. There are several reasons for this. I will say here that — ■ curiously enough — neither the insurance policy, nor agreement to arbitrate is found in this record, from beginning to end; and the only point which is made about that is, that 'the bill of exceptions, while it purports to set out all the evidence, does not set that out. However, that can hardly be essential, since the question is raised by the answer and reply. The answer alleges that the policy contained this agreement:

“In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each electing one, and the two so chosen shall first elect a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them,and shall bear equally the expenses of the appraisal and umpire.”

The agreement was made, then, to submit this loss to competent and disinterested appraisers. That was the agreement in the policy. I take it that they did not make any other •contract when they came to make the agreement of appraisement. Now, the evidence tends to show in this case that the appraiser appointed by the insurance company lived at Columbus, Ohio, and that he was sent for by the company to come to the town of Alexandria, Indiana — in another state —4o appraise this loss. It tends to show that he had previously acted for this company in the same capacity. It tends to show that while present and acting as appraiser, he effectually dominated and controlled his co-appraiser, that he usually had the last word, and what he said was adopted. Now, there is, in our judgment, enough of this sort of evidence to sustain the verdict of the jury, and holding that ■this'appraisement for this reason was invalid. See 131 N. Y., 131. But we do not care to rest the decision upon that. Referring tc the agreement as contained in the answer — ■ after referring to the appraisers as “competent and disinterested persons”, it says: that they “shall then estimate and appraise the loss, stating separately sound value and damage” What does that expression mean? Obviously it means that the appraisers are to state separately the sound value and the damage to each and- every article injured by the fire — -not the sound value and the damage to the stock of goods insured,’but to the articles thereof. Otherwise, •these gentlemen are not appraisers at all — they are judges; they constitute a jury; they are arbitrators to determine the amount of loss rather than the particular injury that may be traced to each and every article.

Again, if they are to determine all the loss, both that upon the injured articles and that which is represented by no injured articles — In other words, where there are articles that are entirely wiped out of existence, if they are to find the loss of stock, to that extent they become tryers of a question of fact, and must get evidence. It is argued by plaintiff in error that it would have rendered their finding •absolutely void if they had called witnesses before them, or had investigated other facts than those which their eyes disclosed. Then it must follow that they were not there to do anything but to appraise the damage to the articles which were still in existence. They undertook, however, in this case to do more: they did set forth the damage to fhe articles in existence, and stated the amount of the whole that they found — stating a gross sum — and wrote in their report that this included the articles totally destroyed by fire — but what they were they did not say — finding that the •total damage or loss to the stock — and not to the articles- — ■ was twenty-six hundred and some ,odd dollars, and they signed the report and went away. Now, that report was invalid for the reason that the appraisers could not, by the process adopted, know the number, character, quality or value of the articles totally destroyed, The evidence in the record was overwhelming that there were articles that were entirely burned; and there were others like hats, of which there was only left the piece of wire that went around the rim. These appraisers could not tell the kind of goods they were, what they were worth, or the condition they-were in-before the fire, without calling for testimony- — -without inquiring of somebody who knew about it — or without getting-hold of some books, papers or invoices and arriving at it by the best means possible. We do not find it necessary to hold that they had power to do that, but we do hold, that they did not undertake to do it in this case- — they did nothing" which would enable them to find the value of the property totally destroyed. Further, the evidence shows beyond doubt that the plaintiff below was present in the town at the time of the appraisement; that he had seen the appraisers, together with his local attorney, and had informed them that; he had his books and papers showing his invoices for many of the goods which were in the store, and was ready to; produce them at any time. He was informed by these appraisers that when they wanted him they would notify him, He waited at his boarding place during the day and until evening, and then found that they had signed their appraisal, left it at the hotel and fled the town. Now,for that reason, we think, this verdict was fairly supported by the evidence — because, as I have said, this was not an appraisal.

4. It is urged that other specific conditions of the policy, were not complied with by the insured, The proofs of loss-are a part of the record in tbe case. We think the plaintiff furnished proper proofs of loss. He furnished them' within sixty days — at least no complaint is made on that point. They were sworn to within sixty days, and appear to be proper on their face, and there is no evidence of any kind that the company ever objected to them; on the contrary, it proceeded to demand, as it might under this policy, an appraisement of the property,and appointed its appraiser and entered into the appraisal of it after agreeing that the statement of the appraisers should govern, and is here insisting that it shall govern.

Second,it claims that the defendant did not submit himself and his books for examination. I have referred to what he was ready to do when the appraisers were there. I do not find in the record that the company made any other demand upon him at any other time to present himself or to bring his books and papers for examination; but he was there at the time named, and ready, and the appraisers would not hear him. Therefore that objection is untenable.

5. The next objection is, that improper evidence was admitted. There are two or three hundred objections and exceptions to the evidence in this record. We do not think any of them are worthy of discussion except what I will refer to more particularly- — -found on pages 127 and 128. The plaintiff on the witness stand testified that the next day after this appraisal was made he was at his attorney’s office, and the appraiser who had been selected by him came in— Mr. Pilger by name — and he states who were present, and then says he had a conversation with Pilger in the presence of the witnesses named--“In the presence of the parties I spoke of there, in Judge Ryan’s office, I asked him the questio'n what he meant by his conduct, and about deceiving me as he did.”

“.Q. In what respect, referring to what? A. That he and Mr. Boyd had agreed to send for me, to inquire for my books and papers, and which they did not do.

■ “Q What answer did he make then? A. He said, in the presence of the other parties, that Mr. Boyd, when he asked that I be sent for, said to him ‘Now that is useless; it won’t make any difference what his books say or what his papers indicate,or what person he would bring into this before us. I have made up my mind not to give him a cent more.”

These questions were all objected to, and motions made to strike out, which were overruled. Now that objection is-preceded by an objection to testimony concerning anything, that took place at the time of the appraisal. The secretary or clerk of the appraisers was called and testified to some things which were said during the appraisal, and that was-objected to. We are inclined to hold that that was competent evidence; but, when we come to the detailing, on-the following day, of what one of the appraisers said that the other appariser had said, we can not doubt but that it was incompetent. You could not impeach this appraisement by proof of what these appraisers-had said about it after they had finished it. What they said about it while engaged in making the appraisal, we understand would be competent, because it goes with the act — it is a part of the act, and tends to explain it; and if anybody heard that and was himself called as a witness, he might, testify to it; but after they had completed their work and been discharged, we doubt if what either said could be offered in this secondary manner, and certainly it is true-that the plaintiff could not offer witnesses to prove what one of them said the . other one had said — -that is too remote. But while holding it incompetent, that does-not dispose of it, for we do not think it was prejudicial. I have, indicated in discussing the preceding question, that we consider the record here as showing that this appraisal was absolutely invalid. There is not a particle of evidence to dispute the claim of the plaintiff as to how it was made up, and the evidence shows plainly and distinctly upon its> face that it was invalid, for the reason which I have before-discussed, and hence all of this evidence objected to was merely incidental and immaterial.

6. This brings me to the charge of the court. 4 great deal of this is disposed of by the same observation. The court could have said to the jury as a matter of law, that this appraisement was not properly made and they should disregard it. That would have disposed of a good-share of this charge and the objections which are made to it. There is no conflict in this evidence; there is no question that this was not an appraisement of the loss or damage to this property. If the appraisers attempted to guess at it, they had no business to guess, because they were bound to ascertain the amount of loss from the sources of knowledge best attainable, if they are required to pass upon that question at all. This apparisement then was never made, and it might have been so treated by the court, and undoubtedly was so viewed by the jury. Justice would require that it be set aside. Arrived at in the manner in which it was, it does not deserve a moment’s consideration.

Some criticism is indulged in by plaintiff in error because the court has made use of certain words which did not seem to be proper; in other words, the court used a number of different words to express perhaps the same thing. It is said that the court referred to these men, in describing what should be their qualifications, by saying that they should be capable, qualified, disinterested, fit, unbiased, etc., those all referring to the same thing. They might be collected under the terms in the policy, as competent and disinterested. The word “competent”, as used by the court, could not have referred at all to the mere qualifications of' these men. No attack was made by the plaintiff or by anybody else upon the qualifications of these appraisers-Either of them might have undertaken to and have told the value of goods like these, this no one for an instant doubts. The incompet.ency, or the interest shown, is manifest by the result of their work — the fact that they did not give due weight to the facts which would make for the one party and against the other,and gave undue weight to facts which were in favor of one party against the other, that would render them, within the terms of the policy, either incompetent or interested, and it did not make any difference which, the final result of it is to render their work invalid. The question to be arrived at ultimately is whether the appraisement was properly made; and, as we have said, it was not properly made, for the very good reason that these men did not undertake to make an appraisement at all: they simply omitted to^appraise, because they could not appraise goods which were not in existence without getting knowledge of those goods from some source, and that knowledge they did not have, and did not seek to acquire. So it is that in this appraisement they were either “incompetent” or “interested”. If|this was a disputed fact,in a new case, it would be required to be submitted to the jury — with some qualifications. I may say that we would not be inclined to hold that a party insisting upon an appraisal may repudiate it on the ground of the incompetence of the appraiser selected by him, if such incompetency was known at the time of the selection; but as I have said, the incompetence — referring to the qualifications or capacity — was not here made a question at all. Hence it would have been sufficient for the court to say to the jury that this appraisal need not be regarded by them, and, therefore, what the court finally said in discussing it, it was immaterial.

The other exceptions and arguments which have been made I have not had time to notice, but we do not regard any of them as erroneous in the sense that they should call upon us to reverse this judgment.

7. The parties in this case seem to have been antagonistic in more senses than one, if we may judge from the arguments which were made before us, The result of that was that the jury seem to have found for the plaintiff, and did not pay much attention to what they found; and, under some circumstances, perhaps the court would be inclined to favor such a result, but we must view these facts as we find them.

We have gone over this record pretty carefully to see whether the verdict in amount is supported by the evidence, and we think we may say that it is not. We find that the inventory upon which the plaintiff based the amount of goods which he had in the store at the timó of the fire — the inventory taken in 1895, is $6208.43. The amount of goods which he thereafter purchased to the time of the fire was $5056.12; included in these amounts are $237.00 goods returned; and $178.75 counted twice, leaving $10,848.80 worth of goods which he had either in the inventory of January, 1895,or had thereafter purchased, From the time of the inventory of January 1, 1895, until the day of the fire he had sold goods amounting to $6500.96 — -at the selling price.

In arriving at the cost of those goods, the plaintiff gets somewhat confused, but he swears pretty positively — and we think he meant it when he said it — that he sold these goods-for an average profit of 40 per cent,, he placing the figures so as to range from 33-| per cent, to 45 per cent., as the. average profit. He is then inquired of what these last goods cost when they were bought; and he says $3900, and after that he is in hopeless confusion as to how he arrived at it. He is asked what he means by 40 per cent., and his answer shows that he was either muddled, or never knew. He says he arrived at it by getting the amount of goods sold, and multiplying that by 40 per cent. Then, of course, he is right when he says that $3900 was the cost — but it would make the rate of profit 66§ per cent,. We do not think he meant that; we think he meant to say that he added 40 per cent, to the cost price as bis profit, and that would make the cost price of the goods sold $4643.54, which would leave $6205.26 worth of goods in the store at the time of the fire.

Smith & Baker, for Plaintiff in Error,

Brown & Geddes, for Defendant in Error.

He says he allows 5 per cent, upon the value of those-goods then in the store for depreciation; that some of them-were some years old,and some were new. We see no reason-why that allowance would not be small enough. That would leave the value of the goods $5895.00. From that, after the fire, he raked out of the embers and water goods which' he says were of the value of $610, which amount he stands-by, although he testifies that he failed to get that for them;, but he proposed to take that upon himself, and credits that amount. That would leave, according to figures, $5285 as-the amount of this loss, of which the defendant is to pay two-sevenths, which would be $1510, and with interest from, the 26th of October, to the first day of the term of the court — September 13,1897 — -would make the amount of the-judgment which ought to have been rendered in this case, $1590.03.

I should say that the amount of the verdict as rendered* is somewhat larger than the amount claimed in the petition, which arose probably from their computing interest to a-later date; but we think this verdict can only be supported! for about $1590; that it is excessive to the extent of $420.91.

Now I will say that in arriving at that, and in making this-computation, we have done so with some hesitation. It is possible that in testifying in this case that the amount of' his profit was 40 per cent., that the plaintiff has been, honestly mistaken as against his own interest; it may be-that he did not mean that, and that the truth is that the-cost of the goods was $3900. But if we affirm this judgment, we must hold that it was excessive to the amount of $429.91. We will, however, reverse it as being excessive, and award a new trial unless the defendant in error will remit that amount and accept the sum of $1590.03.


author: Smyser, J.

text:
    (Fifth Circuit — Licking Co., O., Circuit Court
    March Term, 1898.)
    Before Adams, Douglass and Smyser, JJ.
    TRAVICE VANCE et al v. MARGARET PARK.

      Absolute devise claimed to be in trust — Proof required to establish trust—
    Where a will devises property absolutely to a devisee, with the-oral understanding that such devisee shall take the property in trust for other parties, sufeh trust may be established by parol evidence,but the proof must be “clear,convincing and conclusive.”
    Appeal from the Court of Common Pleas of Licking county.
   Smyser, J.

The case of Travice Vance et al. v. Margaret Park was-heard to the court upon testimony. The controversy arises solely over a fund of a thousand dollars. The plaintiffs-filed a petition in which they say that they are the heirs at law of Asa Park, deceased, and said defendant is his widow. He died on the 5th of November, 1894. At the time of' his death, and on the 13th day of June, 1894, he was the holder and owner of a life insurance policy in the Odd' Fellows’ Beneficial Association of Columbus, Ohio; which, at the first mentioned time, was worth the sum of a thous- and dollars. That on the said 13th day of June, 1894, said Asa Park made and executed his last will and testament. That at the time of making said will, the defendant was present with said decedent, and then promised and agreed with him that if he would name her in his will as-his sole-beneficiary, she would collect from the said associa tion the amount due, or to become due upon said policy, and, in the event of the recovery of the same, she would immediatey pay the same to said heirs in the manner following: one-fifth thereof to Mary Wells; one-fifth to Rachel .Brown; one-fifth to Ella Dumbauld, Laura Boss, Mary Doist, George Vance, Travis Vance, Eliza Vance and Elsie Vance, who are children of Eliza Vance, deceased; one-fifth to the children of Thos. 0, Park, and one-fifth to the •children of Lucy Smith. That thereupon the said Asa Park, on the said 13th day of June, 1894, in his said will named the said defendant as his sole beneficiary. That she has received this money, and refuses to pay it over. The prayer of the petition is that the money be declared to be a trust fund in her hands; that she be charged as a trustee, and •directed to make payment as set out in the petition.

An answer is filed, setting out a copy of the will, making various admissions, and then a general denial. There are two defenses set up, which are substantially one, and that is, that she did not receive this money as administrate; •that she received it as widow, and that, as widow, she is entitled to the money according to the rules and regulations of ■the association, which became bound to pay in the event of death; and denies any trust in the matter.

The will is attached to the answer, and was offered in •evidence: ‘‘I give and devise to my beloved wife, Margaret Park, all my property of every description, to be held by •her absolutely in her own right.”

The laws and regulations of the association were also offered, and I read from page 14:

“Sec. 20: And the president and secretary, on the ■death of a member of the association who is entitled to benefits, shall draw an order on the treasurer for the amount due, payable to the following persons and no others, as beneficiaries, and in the order named: (1) widow, (2) children, (3) mother, 4) sister, (5) father, (6) brother, or •(7) grandchildren of such deceased member, unless that •order of persons be changed by direction of said member.”

It is contended here that there was a change in the order -of persons to whom payment should be made of this fund, by the testator. It is apparent that it is not by the terms of his will,and it is probably not necessáry to decide the question here as to whether or not the fund provided for,and the-order stipulated in sec. 20, to which I have called attention, can, or cannot, be changed by will. The 29 Ohio St., 557, would indicate that such change cannot be made, but. the order has probably amended its rules by reason of that decision. Prior to the amendment and revision of their rules, which took place in 1884 or 1894, I don’t remember which, (but it was after this certificate was issued), it read: “Unless that order of persons be changed by direction of said member in his life-time.” These words are omitted.

We have heard the evidence. There are only two witnesses — Mr. Stasel, who drafted the will, on the one hand,, and Mrs. Park, the defendant, on the other. As I say, it is quite apparent that if there is to be a trust arising in this case, it must be by virtue of parol testimony, fixing the status of this fund. It is not apparent from this will; in -fact, the will precludes the notion of any trust arising. The fund is by the will given to her absolutely,if it is a part of his estate. If this fund is a part of Park’s estate, by the terms of the-will it goes to the widow absolutely. If not a part of his estate, it would go to her under section 20 that I have read.

Mr. Stasel was sent for by Park; he goes out to see Mr. Park; talks the matter over with him, and something is said about this fund. The old gentleman said to him that “I would like to have that go to my grandchildren.” Mr. Stasel very prudently inquired something about the grandchildren. He ascertained from him the fact that many of them were minors; they were numerous; living in various-parts.of the country; some in Ohio, Illinois, and scattered, Mr. Stasel says he cannot remember just exactly where, but all over the country. Owing to the fact of their being so •situated, and many of them minors, he said to the testator that it was inexpedient to devise or bequeath this fund to :these grandchildren, for the reason that the whole fund, in many instances, would be consumed by the appointment of a guardian. Thereupon, Mr. Stasel suggested to him: “Why not give it to your wife, and let her make distribution?” And he says that Mr. Park said to him: “I will be ■satisfied with that.” And Mr. Stasel bays that Mrs.Park was interrogated and asked if she would be satisfied,and she said she would; and that thereupon the will was so written. Now, Mrs. Park denies this. She says that she was in and out; that there was some talk about giving this to the grandchildren, but how it was finally concluded, she didn’t know; ¡•and the court itself put the question to her: “Did you understand when that will was written that you were taking this fund for the grandchildren?” And she said, most emphatically, that she did not so understand it. That is the situation ■of the oral proof.

The rule is that, in'order to engraft a trust by parol upon • a written instrument, the proof should be clear, convincing and conclusive. It could be done in this instance just the ¡same as if it were a deed; and we think the same rule is applied here as is laid down in the 46 Ohio St., 102, Mannix v. Bishop Purcell et al.: “It is competent to prove by parol evidence that land conveyed to a grantee by a deed ab•soluteon its face, is in fact held by him in trust for charitable uses, but such evidence should be clear, convincing and conclusive.” So, we think it would be competent here to show by parol that this lady took this fund, not as widow; that the direction had been changed, and that she held it in trust for these grandchildren. But, there are some other rules that must be applied. By this authority: “such evidence should be clear,convincing and conclusive.” I will not stop ito call attention to the 16 Ohio St,,and the other authorities that the court called attention, to as to when the trust will arise.

From this evidence, although we think Mr. Stasel is telling just exactly what he remembers about it, we think this lady is honest in her denial.. From this proof we cannot find that any trust arises against her.

The proof must be “clear, convincing and conclusive.” The will itself is very cogent evidence against the claim made here. A word from the draftsman, if such was the intention of the testator, could have put that question beyond controversy. But, the will gives her the property absolutely. The rules of the order stipulate that it shall go to. the widow first, In my judgment,there is a total failure of proof. There is not even a variance. The claim of counsel in this petition and on the proof is that a trust was to arise in favor of the grandchildren. Mr. Stasel says that no names were given, but the grandchildren as a whole, or as a class were used. The petition says: “one-fifth thereof to go to Mary Wells”. I don’t know whether she is a daughter or not. I suppose she is. “One-fifth to Rachel Brown”; and then sets out the children of Eliza Vance, deceased. From all that appears in the evidence, we do not know whether these are children or grandchildren. If they are children,there is a total failure of proof in this case, because there was not a word passed between the testator and the draftsman that this fund was to go to any of his children. The only persons talked of were the grandchildren. There wasn’t’anything passed between Mr. Stasel and the testator that it should be divided according to the number of the children he had. It was to go to the grandchildren as a class; and the averment here is that it was to go one-fifth to Mary Wells, and so on. No such talk was had.

In view of all the facts, we are quite clear that there was no trust arising in this matter; that this woman, as widow, is entitled to this fund; and the decree will be so entered.


author: Swing, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox. Smith and Swing, JJ.
    THE J. W. BLAIR BRICK COMPANY v. GUSTAV WALTZ et al.

      Entire mechanic's lien law of '94 invalid — Former law in force—
    The decision by the Supreme Court that the Mechanics’ Lien law of 1894 is unconstitutional so far as its provisions for sub-contrators’ liens are concerned, renders that law invalid as a whole, inclusive of the repealing clause therein, and the Mechanics’ Lien law thus attempted to be repealed remains in force. (Following the decision of the Circuit Court of the Sixth circuit in Whitney v. Gile, ante, p. 648.)
    Appeal from the Court of Common Pleas of Hamilton county.
    While the mechanic’s hen law of Ohio, enacted in 1894, was in foroe, Waltz et al. took the contract for the erection of a building for George C. Schneider, and while the work was in progress the J. M. Blair Brick Company (who had obtained judgment for $471.15 against Waltz et al. for brick used in another building), filed a creditor’s bill against Waltz et al., based on said judgment, and subsequently made the owner, Schneider, a party defendant. A number of sub-contractors also became parties defendant.

      Foraher, Outealt, Granger & Prior, for Plaintiff.

      Ed. M. Spangenberg, John J. Gasser, Chas. J. Hunt and Wm. Hartley Pugh,lor defendants.
   Swing, J.

A decree should be entered in this case finding no equity in favor of the plaintiff, but finding the defendants entitled pro rata to the fund brought into court by Schneider; Mc-Cammon & Co. to share with the others,provided they complied with the law. This decision is made on the authority of the case of Whitney v. Gile et al., 15 O. C. C., 648, in 39 Weekly Law Bull., of June 6, 1898.