text:
    MALICIOUS PROSECUTION — MANDAMUS
    [Cuyahoga (8th) Circuit Court,
    January 22, 1912.]
    Marvin, Winch and Niman, JJ.
    Charles Brenner v. F. V. Faulhaber et al.
    1. Judgment in Mandamus Conclusive in Collateral Proceedings.
    A judgment awarding a writ of mandamus is conclusive, in collateral proceedings, as to the truth of the facts stated in the application therefor and of the authority of the attorneys representing the applicants for such writ.
    2. Malicious Prosecution does not Lie for Bringing Mandamus while Judgment not Reversed.
    An action will not lie for maliciously and without probable cause suing out a writ of mandamus, so long as judgment awarding the writ stands unreversed.
    Error.

      Geo. A. Groot and II. Preusser, for plaintiff in error.

      M. P. Mooney, for defendant in error.
   WINCH, J.

This was an action brought by Brenner, who was a justice of the peace, to recover damages from the defendants growing out of their causing ninety-seven proceedings in mandamus to be brought against him, to require him, as such justice, to accept appeal bonds in ninety-seven eases brought before him in which he had rendered judgments in favor of one S. A. Grossner.

Objection by the defendants to the introduction of any evidence under the petition was sustained by the trial court, and the question for review here is whether or not the petition shows a cause of action.

It sets forth that judgment in all the mandamus cases was against the plaintiff and, so far as appears, said judgments are still in force and unreversed.

The plaintiff says that the defendants were not the plaintiffs in said mandamus proceedings, and were not authorized to represent the plaintiffs therein, but “maliciously conspiring to injure plaintiff in his good name and reputation and for the purpose of causing it to be believed that plaintiff was guilty of malfeasance in his said office as justice of the peace, intending to harass and oppress the plaintiff, falsely and maliciously and without probable cause therefor, caused” said mandamus proceedings to be brought, “using the names of others as the plaintiffs therein. ’ ’

The petition then sets forth the allegations of the applications in mandamus and says that the statements therein contained were false in fact; that one of the defendants, as attorney for the respective plaintiffs, swore to the truth of the allegations in the applications.

It is further alleged that upon these applications in mandamus the defendants induced the common pleas court to issue peremptory writs of mandamus against the plaintiff, without notice to him, and that he was never served with any notice or process to appear or return and answer said writs. Judgment for costs was also rendered in each of said cases against the plaintiff.

So long as the judgments in the mandamus case stand unreversed, there appears to exist no cause of action against the defendants.

The judgments in said actions are conclusive as to the truth of the facts stated in the applications therefor. They are conclusive as to the authority of the defendants to represent the plaintiffs therein.

The question of service in said proceedings upon the plaintiff is not open to question in this collateral proceeding, and, in any event, the court had a right to grant a peremptory writ without notice. Sec. 12288 G-. C.

It does not appear that judgment for costs in said cases was rendered without notice to plaintiff, nor do we find any allegation that defendants in any way prevented plaintiff from having a review of said judgments.

The petition herein does not warrant recovery for the malicious prosecution of a civil action, for there was not any arrest of the person or seizure of property, nor did the proceedings terminate favorably to the plaintiff.

The case of Pope v. Pollock, 46 Ohio St. 367 [21 N. E. 356; 4 L. R. A. 255; 15 Am. St. 608], has been cited as sustaining plaintiff’s petition. It holds that an action may be maintained for maliciously, and without probably cause instituting and prosecuting an action in forcible entry and detainer. The extraordinary character of that action is set forth, and the decision seems to be bottomed upon the proposition that one action in forcible entry and detainer is not a bar to subsequent actions. It further appears in the case that the plaintiff had prevailed in the forcible entry and detainer case. Here he lost out in the mandamus proceedings.

The provisions of Sec. 12848, providing that any attorney or counselor at law, who encourages, incites, or stirs up a suit, quarrel or controversy between two or more persons with intent to injure any of such persons, shall be fined not more than $500, is for the protection of society, but it does not lessen the elements required by the law to be established in making out a case for the malicious prosecution of a civil action, nor does it make any difference that the same attorneys brought ninety-seven suits against the plaintiff, each for different persons, in all of which it appears that plaintiff was justly ordered to do a duty enjoined upon him by statute.

Judgment affirmed.

Marvin and Niman, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    ASSIGNMENTS FOR CREDITORS
    [Cuyahoga (8th) Circuit Court,
    January 22, 1912.]
    Marvin, Winch and Niman, JJ.

      Cleveland Trust Co. v. E. H. Klaustermeyer.
    Director of Insolvent Trust Company Advancing Loan, Failing to Select Collateral as Security, Loses Equitable Lien on Securities.
    A trust company being in failing condition its directors were called together and requested to deposit with the company at least $5,000 each, it being agreed that if they would do so, each should have collateral security therefor “from the securities then owned by and in the possession of the trust company.” Only two of the directors complied with the request, one deposit-tag his money and receiving collateral as security therefor. The other (plaintiff), deposited $5,000 but neglected to get his collateral at the time and let the matter go until after the failure of the bank a few days later. No- particular securities were ever set aside for him; Held: He was not entitled to an equitable lien upon all the securities of the trust company which came into the hands of its assignee in insolvency.
    Error.

      Blandin, Bice & Ginn, for plaintiff in error.

      Ford, Snyder & Tilden, for defendant in error.

      Reversed, Klaustermeyer v. Cleveland Trust Co. 89 Ohio St. 142.

   WINCH, J.

This action originated in the insolvency court of Cuyahoga county upon an application of Klaustermeyer to have a.preference-allowed him in the sum of $5,000 and interest out of the assets of the defunct Euclid Avenue Trust Co., in the hands of the Cleveland-Trust Co., its assignee.'

The insolvency court disallowed the claim; on: appeal to the common pleas court it was allowed, and the judgment of the latter court is here for review on a finding of facts which seems to-be sustained by the evidence given on the hearing.

It appears that a few days before it- failed a meeting of the directors of the Euclid Avenue Trust Co;, of whom Klaustermeyer was one; was1 held at which it was stated that the national bank through which the trust company cleared would refuse to clear longer for it unless a large sum in cash was raised by the trust company. -The directors were requested to raise this money and deposit with the trust company, at least $5,000 each, it being ágreed that if they would do so, each should have collateral security therefor ‘ ‘ from -the securities then owned by and in the possession of the trust company. ’ ’ •

Only two of the directors complied with the request. A director named Oram deposited $5,000 and received collateral as security therefor. Mr. Klaustermeyer deposited $5,000 but neglected to get his collateral at the time, being in a hurry, and let the matter go until after the failure of the bank a few days later. No particular securities were ever set aside for him.

On Ms application to the insolvency court he claimed an equitable lien upon all the securities of the trust company which came into the hands of its assignee.

The doctrine of equitable lien is recognized in Ohio, and is thus stated in 3 Pomeroy, Equity Jurisprudence Sec, 1235 :

“The doctrine may be stated in its most general form that every executory agreement in writing whereby the contracting party sufficiently indicates an intention of maMng some particular property, real or personal, or fund, therein described or identified, a security for a debt, or other obligation, or .whereby the party promises to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforcible against the property in the hands not only of the original contractor, but of his heirs, administrators, executors, voluntary assignees, and purchasers or encumbrancers with notice. Under like circumstances, a merely verbal agreement may create a similar lien upon personal property. The doctrine itself is clearly an application of the maxim, ‘equity regards as done that which ought to be done.’ In order, however, that a lien may arise in pursuance of this doctrine, the agreement must deal with some particular property, either by identifying it, or by so describing it that it can be identified, and must indicate with sufficent clearness an intent that the property so described, or rendered capable of identification, is to be held, given or transferred as security for the obligation.”

This case appears to come within the rule thus stated, except in one particular: the agreement relied upon does not “deal with some particular property, either by identifying it, or by so describing it that it can be identified.”

Had the agreement been that Klaustermeyer was to have a lien on all the securities then owned by and in the possession of the trust company, the description of the collateral would have been sufficient under the holding of the leading case of Countess of Mornington v. Keane, 2 DeGex & J., 292, where the covenant was that all the lands which the covenantor should have on a certain day should be charged, or be security, for a certain debt.

In the case of Atlantic Trust Co. v. Carbondale Coal Co., 99 Ia. 234 [68 N. W. 697], the agreement was that “all the coal company’s accounts for coal sold,” should be assigned to the bank.

We have examined all the authorities cited by counsel on both sides, and find that the agreements construed in each case where a lien was sustained were respecting specific property, or all of the covenantor’s property of a certain kind or some aliquot portion of it.

The facts in this ease show that Klaustermeyer was not to have a lien on all the securities of the trust company, yet that is what he is asking. He was not to have a lien on the securities delivered to Oram, nor was Oram to have a lien upon more than sufficient to secure his own deposit. The offer was made to all the directors at the same time, and they were not to have liens in common and undivided upon the securities of the trust company, but each understood, as Klaustermeyer must have understood, that when each made his deposit, each was to pick out, or have assigned to him, collateral enough in each case to be sufficient security for the amount deposited.

With this view of the facts, the judgment of the common pleas court is erroneous. Nor is it to be sustained upon the theory of a trust, expressed by Judge Phillips, who passed upon this case at one stage in the proceedings as follows:

‘ ‘ Treating this as a loan of money, when Klaustermeyer delivered his $5,000 to the bank in pursuance of the agreement that he was to be secured for his loan of five thousand dollars, and did not then receive his securities but was to call at another time and get them, thereafter the bank held the securities in trust for the benefit of the security of Klaustermeyer. I think that created a trust relation between the bank and Klaustermeyer with reference to these securities, to the extent and effect that he would have therefrom what would secure his loan of five thousand dollars. ’ ’

This is only stating the theory of an equitable lien in another way and in a way criticised by Pomeroy in Sec. 1234 of his work already referred to, as follows:

“It (the equitable lien) is sometimes, although I think unnecessarily and even incorrectly, spoken of as a species of implied trust. If any reference to the theory of trust is made, it is more accurate to describe these liens as analogous to trusts; for while the two have some similar features, they are unlike in their essential elements.
, ‘ ‘ The very essence of every real trust — express, resulting or constructive — is the existence of two estates, in the same thing a legal estate vested in the trustee, and an equitable estate held by the beneficiary.
“In an equitable lien there is a legal estate with possession in one person, and a special right over the thing held by another; but then here the resemblance which at most is external, ends. This special right is not an estate of any kind; it does not entitle the holder to a conveyance of the thing nor to its use;'it is merely a right to secure the performance of some outstanding obligation, by means of a proceeding directed against the thing which is subject to the lien. To call this a trust and the owner of the thing a trustee for the lienholder, is a misapplication of terms which have a very distinct and certain meaning.
“It follows, therefore, that in a larger class of executory contracts, express and implied, which the law regards as creating no property right, nor interest analogous to property, hut only a mere personal right and obligation, equity recognizes, in addition to the personal obligation, a peculiar right over the thing concerning which the contract deals, which it calls a ‘lien/ which though not property, is analogous to property, and by means of which the plaintiff is enabled to follow the identical thing and to enforce the defendant’s obligation by a remedy which operates directly upon that thing.”

It has been suggested that Klaustermeyer is entitled to a preference as to his $5,000 on the theory that the bank received bis money after it knew of its own insolvency.

The answer to this is that there is no evidence in the record that the officers of the bank knew it was insolvent when the deposit was made, and if they did, or ought to have known, then Klaustermeyer himself, being a director and conferring with them as to its condition, knew, or ought to have known of its condition.

' ' The judgment being erroneous upon the facts as claimed by defendant in error, it is reversed and judgment is rendered for plaintiff in error.

Marvin and Niman, JJ., concur.


author: NIMAN, J.

text:
    COVENANTS — DEDICATION-EASEMENTS
    [Cuyahoga (8th) Circuit Court,
    January 22, 1912.]
    Marvin, Winch and Niman, JJ.
    Ida Hillman et al v. Belt & Terminal Realty Co. et al.
    1. Residence Restrictions Based on Notice and Agreement of Plan.
    In order to enforce an alleged general plan for the restriction of all the lots in an allotment to use for residence purposes only, it must appear that sales were made with notice of the plan and under an agreement, express or implied, that the plan was to be carried out with respect to the lots sold.
    2. Common Law Dedication Insufficiently Proved.
    A common law dedication of a street is not proved by evidence that the original owner of the premises improved the street and sold lots with reference to it, referring to .an unrecorded plat, that the city renamed the street, placed a sign with the new name at a corner of the street, and' gas lamps on it, renumbering and cleaning the street.
    3. Right of Sufficient Egress and Ingress in Undedicated Street.
    Abutters upon an undedicated street have a right to have it kept open sufficiently for ingress and egress to and from their lots.
    Appeal.

      C. N. Sheldon and William Sowell, for plaintiffs.

      Kline, Tolies & Morley, for defendants.
   NIMAN, J.

The plaintiffs are the owners of certain lots located in a subdivision and allotment made about the year 1900 by one C. 0. Evarts, located in the city of Cleveland, the plaintiff, Ida Hill-man, owning sublot No. 1; the plaintiffs, Henry B. Ricker and Margaret A. Ricker, owning sublot No. 5, and the plaintiffs Charles Olson and Mary Olson, owning sublot No. 7.

The plat of the allotment as laid out by Evarts contained a street designated therein as Du Broy street, running westerly from Woodland Hills avenue through the allotment, and having no outlet at the west end, being what is known as a dead end street. This strip of land was graded, curbed, paved and otherwise improved by Evarts before the lots owned by plaintiffs were sold to them or those through whom they acquired title. The plaintiffs’ lots front on the north side of this street, and were sold with reference thereto.

Since the plaintiffs acquired their lots the defendant, the Belt & Terminal Realty Co., bought all of the lots on the other side of Du Broy street and several on the same.side, and in 1910 further obtained from Evarts a conveyance of the land within the borders of said Dju Broy street.

The defendant the Cleveland Short Line Ry. has obtained title from the Belt & Terminal Realty Co. to a portion of these lots, and, it is averred in the amended petition, is about to construct a four track line of steam railroad across the same.

- The defendant J. W. Smith, on July 1, 1908, purchased of the Belt & Terminal Realty Co. a part of the lots acquired by it on the southerly side of said Bu Broy street, and has erected thereon a brick factory building for the business of sawing, dressing, furnishing and selling stone.

The defendant, W. H. Whitmore, has likewise, under some arrangement, acquired a portion of these lots, and is using them for a place of manufacturing and compounding oils. On the south side of said Du Broy street the defendant, the New York, Chicago & St. L. Ry. has built a switch, which, near the west end of the street, encroaches upon the south side of the street. In front of the premises occupied by the manufacturing business of the defendant Smith, it is upon the sidewalk portion of the street. No part of the traveled portion of the street is interfered with. This switch is used by those having manufacturing concerns on the property embraced in the allotment, and to some extent, at least, has been used by others.

It is claimed by the plaintiffs that at the time Evarts laid out the allotment and sold the lots owned by plaintiffs he restricted all the lots therein to an exclusively residence purpose, and that the defendants and each of them when they acquired their respective portions had notice of this restriction.

It is further claimed by the plaintiffs that Du Broy street became a public street of the city of Cleveland, and that the construction of the switch-track on a portion of said street is an invasion of their rights. They pray in their amended petition that the defendants, and each of them, be perpetually enjoined from making any use of said lots, or any of them, contrary to said restriction, and from operating or using said switch track along said street; and that said defendants may be required by mandatory order to remove from said lots the factory building, engines, machinery, derricks, switch-tracks, and all other structures, objects or buildings thereon that violate in any way said restriction.

It becomes necessary, then, to determine whether the allotment in question is restricted to residence purposes only.

The deeds from Evarts to such of the plaintiffs as acquired title directly from him, and the deeds from Evarts conveying the other lots owned by the respective plaintiffs, contain no such restriction. In no deed conveying any lot in the allotment was there written such a restriction.

It is asserted by the plaintiffs, however, that Evarts after laying out the allotment upon a general plan of improvement, proceeded to sell lots in the subdivision to various persons upon the representation and promises that all of the lots in said allotment should be sold and used for residence purposes only; that sublots 1, 5 and 7 were sold by him to the plaintiffs, or their predecessors in title, upon the express understanding and agreement that they should be used for residence purposes only, and that all the remaining lots in the allotment, all of which were then owned by him, should be sold and used for residence purposes only; that the plaintiffs, in reliance upon said plan and in accordance with said agreement, have improved their respective lots with buildings used exclusively for residence purposes.

It is contended that these promises and representations and the plan of improvement of said street and property, imposed upon all of the lots in the allotment a restriction that they be used only for residence purposes.

That an agreement restricting the use of land may be proved by parol is laid down in 1 Jones, on Law of Real Property and Conveyancing, Sec. 744, and the cases cited by the author sustain this proposition. In a proper ease equity will enforce the observance of parol restrictions. To make such a case there must be present certain elements which are well stated in an article in 6 Harvard Law Review, 280, where the result of the eases is accurately announced in the following language:

“In order that relief may be granted in favor of any one purchaser against another, there must be something more than the mere covenant of each purchaser with the vendor; and also that it must appear that back of this was some general plan relating to all the lands sold, intended for the common advantage of the purchasers, and entering into the consideration of the purchases. It must also appear that the sales were made with notice of this plan and under an agreement, express or implied, that the plan was to be carried out with respect to the lots or to be sold in pursuance of it. Any purchaser of a part of this land with notice of this plan or purpose, is subject in equity to the restrictions imposed for the purpose of carrying it out, and has the benefit of the restriction placed upon others without regard to the order of their conveyances.”

In the case at bar, the evidence relied upon to establish the restriction fails, in our opinion, to measure up to this test, and we hold that the defendants are not restricted in the use of their lots to residence purposes only.

This conclusion necessarily disposes of the other questions in this case, except the right of the defendants to maintain and operate the switch with its encroachments upon Du Broy street.

The plat of the allotment was never recorded. The street was never dedicated to and accepted by the city, unless there was a common law dedication by Evarts and an implied acceptance of the street by the city. The facts relied upon by the plaintiffs in support of this view are the platting of the property by Evarts'on the plan produced in evidence, and the sale of lots bounding on the street and referring to the plat, its renaming by the city and placing of a sign bearing its name “Quebec” at the corner of said street where it comes into W’oodhill avenue, and by the placing of gas lamps on said street, renumbering the street and cleaning the same.

In Toledo v. Converse, 11 Circ. Dec. 468 (21 R. 239), affirmed in 66 Ohio St. 678 [65 N. E. 1126], part 1 of the syllabus is as follows:

‘ ‘ In- order to constitute á completed and valid dedication of land to the public, it must appear that the owner of the land clearly and unequivocally indicated by his words or acts an intention to dedicate the same, and there must also be an acceptance thereof by the public.”

In Railroad Co. v. Roseville, 76 Ohio St. 109 [81 N. E. 178], it was held:

“To show the establishment of a street by a common law dedication, it is essential to prove clearly that the owner of the land intended to donate it for that use, and to prove also an acceptance.
“An intention by a railroad company to dedicate a street is not clearly shown by proof that a way over its tracks and unenclosed lands had been used for about forty years by the public, when during the entire time the way was maintained by the company, and was used by its patrons and tbe use by tbe public was merely permissive.
“An acceptance by a city or village of the dedication of a street can not be shown by proof of user by the public, but it is essential that acts of acceptance by proper officials be shown.”

The evidence fails to indicate clearly and unequivocally an intention on the part of Evarts to dedicate this street, and there is no sufficient evidence that the city ever accepted the same.

The plaintiffs can not, therefore, complain of the presence of the switch as an obstruction to a public street, but must stand upon the peculiar injury, if any, done to them, in their property rights in said street.

In spite of the fact that the street is not a public one, the plaintiffs are entitled to have it kept open for access to their respective properties, and if such access were .interfered with or obstructed, it would be an invasion of their property rights, which, under proper circumstances, would entitle them to an injunction. Such is not the ease, however. The.entire track is on the opposite side of the street from their property and encroaches only slightly upon the street, where it does at all, The plaintiffs have free and unobstructed access to their respective houses over the entire width of the street for the greater part of the way, and over much more than half of the width of the rest of the way.

In Herzog v. Pittsburgh, C. C. & St. L. Ry., 25 O. C. C. 702 (6 N. S. 527) it was held that injunction would not lie to restrain the laying of a spur track in a public street, and the holding was based on the ground that ingress and egress to and from the property of the plaintiff were not interfered with. This ease was affirmed by the Supreme Court, without report, Pittsburgh, C., C. & St. L. Ry. v. Herzog, 74 Ohio St. 440 [78 N. E. 1135].

In Smedes v. Cincinnati Interterminal Ry., 16 Dec. 743 (4 O. L. R. 44) it was held:

‘ ‘ Injunction will not lie to restrain the laying of a surface spur track and the erection above it of a single open truss bridge on the opposite side of the street from the plaintiff’s property, there being no injury of a special kind peculiar to him and not shared -by him in common with other lot owners abutting the streets. ’ ’

It was also decided in Gunning v. Pittsburgh, C., C. & St. L. Ry., 14 Dec. 660 (2 N. S. 411) that the laying of a spur-track in the street, as distinguished from a track for general railroad purposes, is not such a division of the street from its ordinary uses as to interfere with the private rights of abutting owners, or beyond the power of council to authorize, and that injunction against the laying of such a track will not lie on the petition of an abutting property owner, where it does not appear that any of his rights or property in the street will be materially interfered with, and who having notice of the proposed construction did not file his petition for several months, or until the work was nearly completed.

In view of the conclusion stated, it is unnecessary to consider the' effect of the delay of the plaintiffs in beginning this action until this switch track was laid.

: The rélief sought by the plaintiffs is denied, and the amended petition is dismissed.

Marvin and Winch, JJ., concur.


text:
    JUSTICE OF THE PEACE — TRIAL
    [Cuyahoga (8th) Circuit Court,
    January 22, 1912.]
    Marvin,' Winch and Henry, JJ.
    Frank Lyons v. C. C. McMahon, Constable, et al.
    Appearance of Defendant at Time in Summons, Remaining One Hour and Departing without Action Taken Held Discontinuance.
    If the defendant in a justice court action appears at the time mentioned in the summons, and remains for an hour thereafter, and the plaintiff does not appear, whereupon the defendant departs without any action having been taken in the case, the result is a discontinuance of the case, and the justice has no jurisdiction, at some later day, to enter judgment against the defendant.
    Appeal.

      F. P. Beers and Harry Payer, for plaintiff.

      Stearns, Chamberlain & Boyan, for defendant.
   NIMAN, J.

On August 17,1911, James Thompson & Bro., a corporation, one of the defendants in this action, began suit against Frank Lyons, the plaintiff here, in the court of William H. Chapman, a justice of the peace in and for Cleveland township, to recover the balance claimed to be due on an account for goods sold and delivered. Summons was duly issued and served upon the defendant in said suit, requiring him to appear at the city hall at the office of said justice of the peace on August 16,1911, at 8:30 o ’clock a. m., to answer to said suit.

On the day, and at about the hour mentioned in the summons, Lyons went to the office of the justice of the peace, which was not open at the time he arrived, but which was opened a few minutes after 9 o’clock. He had with him the copy of the summons served upon him, which he showed to the clerk, of whom he asked information concerning the case. The clerk, after searching through his files and failing to find any file envelope or other record of the case, and after speaking to the justice himself about it, informed Lyons, in substance, that there seemed to be no such case there against him. Lyons remained in the court room until after 10 o’clock and during the time he was there no one appeared for the plaintiff, and the case was not called.

The evidence is undisputed that on August 14, two days before the time mentioned in the summons for the defendant to appear, the attorney for the plaintiff in the action had requested a young man, who was acting as assistant to the clerk in the justice’s office, to continue the case to September 6, 1911, and that in compliance with this request, there was written on the file envelope thereof a notation to the effect: ‘ ‘ Continued by consent to Sept. 6, 1911, 9:30 a. m.”

It appears from the transcript of the justice’s record that on September 6, 1911, at 9:30 a. m., the case was called, and the defendant not appearing, judgment for $291.81 and costs was entered against him.

Lyons had no knowledge of the rendition of judgment against him until C. C. McMahon, a constable, the other defendant in this action, acting under an execution issued thereon, levied on his -personal property and put a keeper in his place of business.

In this action, which is here on appeal, the plaintiff seeks to have the judgment rendered against him in the justice court declared void and of no effect and the defendants herein' perpetually enjoined from enforcing the same.

Section 10246 G. C., relating to actions before justices of the peace, provides as follows:

“The parties are entitled to one hour after the time mentioned in the summons for appearance in which to appear, but are not bound to remain longer than that time unless both parties have appeared and the justice, being present, is engaged in, the trial of another cause. In such case he may postpone the .time of appearance until the close of such trial.”

• If the defendant in a justice court action, then, appears at the time mentionéd in the summons, and remains for an hour thereafter,-and the plaintiff does not appear and the defendant departs without any áction having been taken, the result is' a discontinuance of the case, and the justice of the peace has no jurisdiction to enter judgment against the defendant at some ■later date.

This is the situation presented in the case at bar. The plaintiff, Lyons, complied with the terms of the statutes, and the judgment rendered against him on September 6, 1911, was rendered without jurisdiction over his person and was absolutely void.

The attempted continuance from the hour mentioned in the summons on August 16, 1911, to September 6, 1911, was of no effect. It was'not granted on application to the justice of the peace himself, but by one who had no official standing of any kind, nor was it made by consent, as the file envelope and the transcript of the record, uncontradieted, would indicate. While the attempted continuance was undoubtedly made without any intention of deceiving the defendant or of taking any advantage of him, it was done without his knowledge and resulted in a judgment being rendered against him without any opportunity of making a defense.

When Lyons first discovered that a judgment had been rendered against him, the statutory time for taking an appeal had passed, and he was also unable to take advantage of the provisions of Sec. 10377 G. C. providing- a method of- setting aside judgments irregularly rendered before a justice of the peace, because of lapse of time. There was no other remedy at law to avoid the effect of the judgment, arid having'• pleaded in his amended petition herein that he has a valid defense to the action in which the judgment was rendered, and sustaining this allegation by proof, he is entitled to the equitable relief which he seeks, and a decree is accordingly granted in accordance with the prayer of his amended petition.

Marvin and Winch, JJ:, concur.


text:
    LANDLORD AND TENANT
    [Cuyahoga (8th) Circuit Court,
    January 22, 1912.]
    Marvin, Winch and Niman, JJ.
    Goodyear Tire & Rubber Co. v. Loomis Realty Co. et al.
    1. Right to Place Signs on Leased Premises Belongs to Tenant.
    The right to place signs upon the outside-walls of demised premises, is-appurtenant to the premises and belongs to the tenant.
    2. Signs Restricted to Side of Building in Lease Binding on Lessee.
    An agreement in a lease of part of a building that there shall :be no signs placed on the building in the space for signs in front and except that the tenant is given the exclusive right to place its own sign on the west side of the building, is a covenant on the part of the lessor as well as a restriction upon the rights of the lessee.
    Error.

      Amme.rman & Thompson, for plaintiff in error.

      Hills & Van Derveer and Hoyt, Dustin & Kelley, for defendant in error.
   WINCH, J.

The dispute in this case is about a sign on the west wall of a building on Euclid avenue, in the city of Cleveland, owned by the defendant, the Loomis Realty Co.

The plaintiff claims the exclusive right to exhibit its sign on said wall, under the terms of its lease with the realty company; the realty company says the lease should be reformed so as to show clearly that the plaintiff is not entitled to the exclusive privilege of a sign on said wall; the defendant the B. F. Goodrich Co. claims a right to maintain a sign on said west wall under an agreement with the realty company later in date than the. lease of plaintiff.

Plaintiff is tenant of the westerly store rooms in the building, which is two stories high, and, without any agreement in the lease, it would have the exclusive right to place signs on the lower half of said westerly wall because it is appurtenant to the premises demised to it. 24 Cye., 1047.

The Goodrich Co. is tenant of storerooms further east on Euclid avenue. Having leased the westerly store to plaintiff, and plaintiff having taken possession thereof, the realty company had no right thereafter to give the Goodrich Co. any sign •rights on the first story of the west wall, unless it reserved said rights under the terms of the lease, the important clause of which reads as follows:

“It is agreed that there shall be no signs placed on the building, except in the spaces for signs on the Euclid front and that the party of the second part may desire to have lettered in gold or silver letters on the plate glass window or doors, except that the party of the second part is given the exclusive right to place its own sign on the west side of the building occupying a space not exceeding 40 feet in depth from the front corner of the building, and the full height of the building, which wall sign may be illuminated at the expense of the party of the second part, should the second party so desire.”

This language is plain and requires no construction. The first clause, “It is agreed that there shall be no signs placed on the building, except in the space for signs on the Euclid front,” etc., is a covenant on the part of the lessor as well as a restriction upon the rights of the lessee, and would forbid any sign on the west wall, were it not for the exception in the last clause, that the plaintiff “is given the exclusive right to place its own sign on the west wall of the building,” etc.

No evidence has been produced before this court that there was- any mutual mistake in inserting said clause in the lease, and the cross-petition of the realty company, asking for reformation, is dismissed.

Plaintiff’s lease is dated March 3, 1911; it entered into the possession of its store rooms April 1, 1911; about the middle of the month it painted a sign forty feet wide and two stories high on the front end of the west wall; thereafter the realty company attempted to grant sign space on the west wall to the Goodrich Company, and on May 3, 1911, somebody started to paint a sign fifty feet long and two stories high next to the plaintiff’s sign.

The plaintiff immediately protested to the realty company, and two days later, it appearing that the sign would advertise the Goodrich Co., plaintiff, on May 6, 1911, requested the Goodrich Co. to remove its sign, which by that time was complete.

The Goodrich Co., while not claiming any prior contract rights, for the agreements of neither party were recorded at that time, still insisted that it should be permitted to keep its sign in place, because it spent some $150 in painting it, before plaintiff ordered it to stop.

There is no merit in this defense. The Goodrich Co., when it started to paint its sign, knew that the lower half of the west wall belonged to plaintiff, for it saw plaintiff in possession of the west store. This was notice enough of plaintiff’s sign rights on the.lower half of the wall, and if the realty company represented to the Goodrich Co. that the plaintiff had surrendered any part of said right, the Goodrich Co. might have advised itself of the exact terms of the contract, by inquiring of plaintiff. It was apparently a trespasser on this space, and acquired no more rights to the lower half of the wall than a trespasser.

The upper half of the wall is in like case:

Seeing plaintiff’s sign covering 40 feet of the upper half of the wall, the Goodrich Co. was put upon notice and should have inquired of plaintiff, before painting the sign in question, what right the plaintiff had there.

No estoppel here arises; plaintiff did nothing to encourage the Goodrich Co. to paint its sign, nor was it guilty of any laches which should now bar it of the relief prayed for.

Plaintiff immediately notified the lessor not to paint the sign and within three days, having found out who the aggressor was, it notified-the Goodrich Co., which was reasonable dispatch in the premises.

Nor was there any waiver of rights on the part of the plaintiff.

Estoppel, laches and waiver are doctrines applied where the ■equities require it, but the Goodrich Co. having failed to .prove any legal right to maintain its sign superior to that of the realty company, growing .out of lack of notice, and the realty company having covenanted with regard to the matter, its covenant will be enforced.

Judgment for plaintiff as prayed for.

Marvin and Niman, JJ., concur.


text:
    FEAUDS, STATUTE OF
    [Cuyahoga (8th) Circuit Court,
    January 22, 1912.]
    Marvin, Winch and Niman, JJ.

      Mary Thibodeau v. Barbara Kevern et al.
    Payment, Possession and Improvements under Parol Contract.
    .Payment of the consideration money, possession taken, and lasting improvements made by the purchaser of lands under a parol contract, will take the contract out of the statute of frauds.
    Error.

      H. Q.Qahn, for .plaintiff in error.
    • Kert'uish, Kerruish, Hartshorn & Spooner, for defendants in error.

      Affirmed no opinion, Kevern v. Thibodeau, 88 Ohio St. 603.

   WINCH, J.

This action was heard on appeal, the plaintiff cláiming title to certain premises described in her petition, which she occupies and from which the defendants were seeking to remove her by proceedings in forcible entry and detainer. She asks that said proceedings be enjoined and that she have specific performance of a parol contract to convey, said premises to her, and for such further relief as may be just and proper.

We find the facts of the case to be as follows:

Upwards of four years ago the plaintiff, who is a widow with four children, the oldest of whom was then about seven years of age, was living with her brother, John Kevern, and supporting herself and her children by working at Chandler and Rudd’s. Her brother William Kevern was a widower with no children and owned a piece of land at the corner of E. 91st street and Booth avenue in the city of Cleveland, on which there were then two houses fronting towards the west on E. 91st street, in one of which John lived and in the other, on the corner of Booth avenue, William lived.

Being desirous of a housekeeper, to take care of his house and cook his meals for him, and being desirous also of the company of his sister and her children, whom he desired to assist in their hard circumstances, he proposed to his sister Mary, the plaintiff, that she give up her position at Chandler and Rudd’s and come and live with him, act as his housekeeper and be company for him, he agreeing to furnish five dollars a week toward the table board and if that was not enough to pay for all the food needed for himself and Mary and her four children, then she should pay for all in excess of that amount, it being understood that she might have her spare- time to work and earn money for that purpose. He also agreed to pay her for her services, but the amount of her compensation was not agreed upon at the time.

So Mary and her children took up their home with William, and Mary gave up her regular position at Chandler and Rudd’s, but found it necessary to work there during noon, or rush hour, and to do sewing and take in washing so as to properly feed and clothe herself and children. In this she had help from William, from time to time, for he gave all of the children clothing and shoes, as did also their Uncle John and their grandfather Thibodeau. Indeed, the family in all its branches seems to have been loyal and worthy, understanding their duty to each other and especially to the widow Mary and her four little fatherless children.

This situation continued for about three years, during which time Mary, when she needed clothing for herself, would ask William for money and for payment for her services as his housekeeper, but he would put her off with a small payment of five dollars, telling her he would make it all right with her in the end.

These requests for payment and conversations about the matter occurred five or six times in the three years.

During these three years, William moved two small houses onto the lot, in the rear of his house, fronting them on Booth avenue; the most easterly of these houses he rented to a man named Chico. It was called the Chico place and is the premises now claimed by plaintiff. Chico had a garden in the yard back of his house and seems to have occupied all the land from the east line of William’s property, to the second little house immediately in the rear of the one on the corner, being twenty-six feet front on Booth avenue and extending back 132 feet to William’s south line.

Finally, about November, 1910, William told Mary that he was going to get married and bring his wife home, and that she would have to get out with her children and their relations would have to cease. Naturally she wanted to know what was going to become of her and what settlement he was going to make with her for her services, and he said he would give her the Chico place; that it ought to be enough for her,.and to this arrangement she assented.

He sent for Chico and told him he would have to get out, for he had given the place to his sister Mary. Chico demurred, said he had always paid his rent, didn’t want to get out and offered $1,000 for the place.' William refused to sell, saying he had given the place to Mary, and if he took $1,000 he would have to turn it over to her, and if he did she would spend it, and it was better for her to have the home.

There was no gas in the house, and Mary wanted gas pipes run in and two stoves and gas fixtures installed, but William refused to make repairs or improvements, saying the place was hers and she would have to take it as it was — he had done enough for her. So her brother John put in the pipes and stoves and fixtures, Mary paying for the materials. She also did some papering and painting.

On November 16, 1910, Mary ,and ber children moved into the Chico place and have lived there ever since.

In August, 1911, William was suddenly killed in an accident, never having given Mary a deed of the premises in question. She doesn’t seem to have understood what a deed was, or that she needed one.

William left one child, the defendant, Elizabeth Kevern, and a widow, the defendant, Barbara Kevern; he left no will. About a month after her ..husband’s death the widow instituted the proceedings in forcible detainer which are sought to be enjoined.

The question is whether the foregoing facts will take the case out of the statute of frauds.

It will be noticed that the consideration here claimed was the services of the plaintiff rendered to her brother as his housekeeper and companion for three years. There was never any agreement between the parties as to the value of said services; indeed, on account of the relationship of the parties, it is almost impossible to put a value upon them.

How far the five dollars a week went to feed the children, we do not know; with the high prices prevailing in the last few years, it could not have gone very far. If for the board of himself and his housekeeper he had to pay only five dollars a week, he got off very reasonably, and if the children of Mary during these three years had a roof over their heads and he paid something toward their food and clothing, it is to be ascribed, in this family at least, to his bounty, rather than to compensation in part for Mary’s services.

Considering the house worth $1,000 it may be perhaps, very liberal to pay for Mary’s services, but the parties having come to an agreement with reference to a matter which is difficult for others to estimate, we conclude that Mary paid full consideration for the premises.

She was also put in possession of the premises.

In 23 Cent. Dig., 2422, pp. 318, it is said:

“Payment by a purchaser of land by parol, of the consideration money, and possession by him, will take the contract out of the statute of frauds.” „

Many cases are cited sustaining the text.

Mary also made lasting improvements upon the premises, which though slight, are entitled to consideration.

In the case of Shahan v. Swan, 48 Ohio St. 25 [26 N. E. 222; 29 Am. St. 517], Judge Bradbury, on page 40 of the opinion says:

“Notwithstanding that it is the established rule in Ohio that the payment of the consideration, even in the personal services of the party seeking relief, does not ordinarily constitute such part performance as will take a case out of the operation of the statute of frauds, we do not wish to be understood to hold that cases may not arise wherein specific performance of a contract in parol may be had on the ground that the . consideration had been paid in personal services, not intended to be and not susceptible of being measured by a pecuniary standard.”

In this case, of course, the services were not rendered on a contract for the purchase of the premises; when rendered Mary expected to be compensated in money, but when she accepted the premises in payment for her services, made improvements upon them of lasting benefit to the freehold and took possession, it would seem that the contract to convey then entered into was completely executed, on both sides, the proper evidence of the transaction, in other words, a deed, only, being lacking, to protect her in her possession.

We have examined the opinion of this court in the ease of Schroeder v. Schultz, 43 O. C. C.—(24 N. S. 268), affirmed, no opinion, Schultz v. Schroeder, 68 Ohio St. 690 [70 N. E. 1130], and believe that the principles there announced warrant a judgment in this case in favor of the plaintiff. Indeed, the evidence in this case is clear and uneontradicted, while the difficulty in the case referred to was in determining who was telling the truth.

In the case of Sternberger v. Hanna, 42 Ohio St. 305, the court held that possession under the verbal contract, and payment of part of the consideration, took the case out of the statute of frauds.

As said in the case of Sites v. Keller & Skinner, 6 Ohio 484, 489:

“The fact of the vendor’s looking on and seeing improvements made, when he intended to avoid the agreement, amounts to a fraud, and it is upon that ground that relief ought to be afforded.” See also Kelley v. Stanbery, 13 Ohio 408.

-The relief prayed for in the petition is granted.

Marvin and Niman, JJ., concur.


text:
    MOTIONS AND ORDERS
    [Cuyahoga (8th) Circuit Court,
    February 5, 1912.]
    Marvin, Winch and Niman, JJ.
    Poplowsky Plumbing Co. v. D. H. Rosenstein.
    Duplicate Motion May be Stricken from Files.
    A court is not required to pass upon the same matter more than once; hence there is no error in striking from the files a second motion to vacate a default judgment identical with one overruled five days before.
    Error.

      Harry Koblitz, for plaintiff in error.

      J. Mendelson, for defendant in error.
   WINCH, J.

The error here complained of is striking from the files a motion to vacate a default judgment. Such action was taken by the trial court because five days before it had overruled a similar motion made by plaintiff in error.

We see no error in this ruling; the court is not required to pass more than once upon the same matter; otherwise there would be no end to litigation.

Judgment affirmed.

Marvin and Niman, JJ., concur.


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    AUTOMOBILES — STREET RAILWAYS
    [Cuyahoga (8th) Circuit Court,
    February 5, 1912.]
    Marvin, Winch and Niman, JJ.
    Ferdinand Ziganek v. Cleveland Ry.
    Automobile Driver Crossing Street Railway In Front of Approaching Car not Bound to Anticipate Negligence of Motorman.
    While one about to cross a street car track with an automobile In front of an approaching car is bound to use his- faculties for his own protection, yet ordinary care does not require of him that he anticipate negligence on the part of those operating the car, and whether or not he did exercise ordinary care in the light of all the circumstances, in attempting to cross the tracks in front of the approaching car, is a question which he has a right to have submitted to a jury.
    Error.

      B. Pearce and C. N. Sheldon, for plaintiff in error.

      Squire, Sanders & Dempsey, for defendant in error..
   NIMAN, J.

The plaintiff in error brought suit in the court of common pleas against the defendant in error to recover damages for personal injuries suffered by him when he was struck by street car, operated by the defendant, as he was in the act of crossing to street car track in an automobile.

The pleadings and the evidence show that the plaintiff, between 8 and 9 o’clock in the evening of August 12, 1908, was going westward on St. Clair avenue, in the city of Cleveland, driving an automobile, on the northerly side of the street; that as he approached East 45th street he turned the automobile to the southward for the purpose of going up said 45th street; that as he was turning across the street a suburban car, owned by the Cleveland, P. & E. Ry., and operated by the defendant, was approaching from the west on the south track in St. Clair avenue; that as the plaintiff was going upon the track on which this suburban car was running, he' discovered the car almost upon him and tried to reverse the automobile, and while so doing the front part of the automobile was struck by the car and he was severely injured.

It appears further that the car had bright headlights which the plaintiff claims were so dazzling as to be confusing to the eye and misleading to one not accustomed to viewing the same; that the plaintiff had seen the car approaching a considerable distance away, and at the time he turned to cross the track for the purpose of going into 45th street, it was opposite East 43rd street, a distance of between 300 and 400 feet from the point where the plaintiff attempted to cross the street; that according to the testimony of certain witnesses the car was running at a high rate of speed, estimated by one witness .to be from twenty-five to thirty miles an hour; that after striking the automobile, the ear ran a distance of about 125 feet before coming to a stop.

When the plaintiff had rested, the court on motion of the defendant, instructed the jury to return a verdict for the defendant, and it is the correctness of this action that is called in question by this proceeding in error.

The motion was based upon the ground that the undisputed and controlling facts produced in evidence by the plaintiff showed no actionable negligence on the part of the defendant, and that the plaintiff had not overcome the presumption of contributory negligence.

There was evidence in the case that tended at least to show negligence on the part of the defendant in the operation of the car, and the action of the trial court must be sustained, if at all, on the ground that the undisputed and controlling facts showed contributory negligence on the part of the plaintiff.

The rights and duties of those about to cross the tracks of a street railroad at a street crossing are discussed and defined in Cincinnati Street Ry. v. Snell, 54 Ohio St. 197 [43 N. E. 207; 32 L. R. A. 276], and it was there held:

‘1A person about to cross the track of a street railway at a street crossing is bound to exercise care proportioned to the danger to be avoided, and the consequences which might result from want of it, conforming in amount and degree to the particular circumstances surrounding him; but it is only ordinary care which is required,, that which might reasonably be expected of persons of ordinary prudence. Ordinary care does not'require him to anticipate negligence on the part of those operating the railway, and while he should use his faculties for his own protection, it is not negligence per se for him to omit to look in both directions for the approach of a car; whether it is or not negligence depends upon the circumstances. ’ ’

Applying the principle laid down by the Supreme Court in this ease to the one under consideration, it may be said that the plaintiff was bound to use his faculties for his own protection, but ordinary care did not require of him that he anticipate negligence on the part of those operating the car, and whether or not he did exercise ordinary care in the light of all the circumstances, in attempting to cross the track in front of the approaching car, was a question which he had a right to have submitted to the jury.

There was evidence which tended to show, in some degree, that if the suburban car had been operated with reasonable care, it might have been stopped after the plaintiff had started across the track, and before the accident occurred. The plaintiff had a right to assume that such reasonable care would be exercised by the defendant.

The facts in this case are very similar to those in Toledo Elec. Street Ry. v. Westenhuber, 12 Circ. Dec. 22 (22 R. 67), in which parts 1 and 2 of the syllabus read as follows:

“It is negligence in the motorman of an electric street.car, when the car is from 150 to 200 feet from a crossing, and he sees a wagon about to cross the track, not to try to stop or slacken the speed of the. car until almost at the crossing, when by so doing the collision which ensued might have been avoided.
“It is not negligence in the driver of a wagon to attempt to drive across a street car track ahead of an approaching electric car, when the car is so far away that by the exercise of reasonable care, it might be stopped before reaching the place of crossing. ’ ’

It was contended in that case the driver was guilty, of contributory negligence in entering upon the tracks, because before his horses came upon the track he distinctly saw the car approaching, nor more than two hundred feet away; that he saw it approaching at a rate of speed that would run him down, unless the speed of the team should be very much accelerated or the speed of the car should be restarted; yet he entered upon the track to cross over, and was struck.

In answering this contention the court used language that is pertinent to the circumstances of this case. On page 69 the court said:

“To attempt to drive across a track ahead of a street car when the car is so far away that by the exercise of reasonable care on the part of the operators it might be stopped before reaching the place of crossing, is not negligence in our opinion. The rights of the street car company and of the driver of the team being equal at the crossing, he had a right to go over the crossing ahead of the car, notwithstanding the fact that his doing so would require that the speed of the car must be retarded to prevent a collision. The one first at the crossing had the right to precede the other in going over the same. It is plain, the driver of the team must take into consideration the fact that the street ear can not turn out, it must remain upon the rails, and he must take into consideration the fact that it can not stop instantly, that if it is going at a high rate of speed it may require considerable distance for it to stop; but taking all these things into consideration, if he enters upon the track when the car is so far away as that it may, by the exercise of reasonable diligence on the part of the operator be stopped, he is not, in our opinion, guilty of negligence in thus entering upon the track. ’ ’

The decision of the circuit court in that case was affirmed by the Supreme Court, without report, Toledo Elec. Street Ry. v. Westenhuber, 65 Ohio St. 567 [63 N. E. 1134], and upon its authority, if no other existed, we would be compelled to reach the conclusion announced.

The judgment of the court of common pleas is reversed and the cause remanded for further proceedings.

Marvin and Winch, JJ., concur.


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    ATTACHMENT — PRINCIPAL AND SURETY
    [Cuyahoga (8th) Circuit Court,
    February 5, 1912.]
    Marvin, Winch and Niman, JJ.
    Glenn E. Griswold et al. v. Helen Tucker.
    Surety on Bond of Justice of the Peace Liable for Misconduct of Special Constable.
    The obligation on the part of a surety on the official bond of a justice of the peace to respond in damages to one who has been injured by the misconduct and illegal acts of a special constable arises out of the bond on which he is surety, and the limitations on an action brought to enforce such obligation is ten years.
    Error.

      C. A. Dille, for plaintiff in error.

      Harry F. Payer and H. A. Cummings, for defendant in error.
   NIMAN, J.

On August 8, 1902, the plaintiff in error, Glenn E. Gris-wold, was a justice of the peace in and for the township of Collinwood, in Cuyahoga county, and the plaintiff in error, the Bankers Surety Company, was surety on his official bond. On the day mentioned, the said Glenn E. Griswold, in a certain action pending in the court of said justice appointed one R. A. Hudson special constable for the purpose of attaching certain property of the defendant in that action, under an order of attachment issued therein. Hudson, acting as such special constable, wrongfully attached and held property belonging, not to the defendant in said action, but to Helen Tucker, the defendant in error, who in another suit begun in the court of another justice of the peace against Hudson recovered a judgment against him on the 20th day of August, 1902, for the value of the property wrongfully attached and damages for its illegal detention. ■This judgment not being satisfied, the defendant in error, on May 26, 1909, brought suit against the plaintiffs in error in the court of common pleas to recover the amount adjudged her in her action in the justice court, and other damages suffered by her on account of the misconduct and illegal acts of the said special constable. In the court below the defendant in error recovered a judgment against the plaintiffs in error, which the latter seek in this proceeding to have reversed.

The plaintiffs in error contend that the cause of action sued upon was barred by the statute of limitations, and that the trial court erred in not so holding.

This contention is based upon the claim that the cause of action set forth in the petition is governed by the limitation prescribed by Sec. 11222 G. C. which contains a provision, in substance, that an action upon a liability created by statute, other than a forfeiture or penalty, can only be brought within six years after the cause of action accrues.

The defendant in error contends that Sec. 11226 G. C. controls the time within which her action could be brought. This section is as follows:

“An action upon the official bond or undertaking of an official, assignee, trustee, executor, administrator or guardian, or upon a bond or undertaking given in pursuance of a statute, can only be brought within ten years after the cause of action accrues; but this section shall be subject to the qualifications in section forty-nine hundred and seventy-six. ’ ’

A determination of the nature of the cause- of action contained in the petition of the plaintiff in the court of common pleas will decide which of the sections of the statutes referred to should govern. If the cause of action is one founded upon a liability created by statute, it would be barred in six years; if the action is upon the official bond of the plaintiff in error, Glenn E. Griswold, the time would be ten years.

The authority for the appointment of a -special constable by a justice of the peace is found in See. 3333 G. C. which, after conferring the power upon the justice to make such appointment in certain eases, provides:

“Such justice shall stand as surety, and shall be in that character liable, he and his sureties, for any neglect of duty or any illegal proceedings on the part of such constable so by him appointed.”

The only obligation of the sureties on the bond of a justice of the peace must be based upon the bond itself. Their liability arises by reason of their having signed the bond. In executing that instrument as sureties they would be held, however, to have acted in contemplation of the law making them liable with their principal for the neglect of duty, or illegal proceedings on the part of any special constable. The law fixing this liability would, in legal effect, become a part of the terms of the bond itself, whether written therein in express terms or not. The obligation on the part of a surety to a justice of the peace to respond in damages to one who has been injured by the misconduct and illegal acts of a special constable would, therefore, arise out of the bond on which he is surety, and the liability of his principal, the justice of the peace, would be of the same nature.

In reaching this conclusion we are supported by the authority of Dummick v. Howitt, 40 Ohio St. 646, where it was held :

“Under a bond given by a justice of the peace conditioned as required by Sec. 579 R. S., the sureties are liable for any neglect of duty or any illegal proceedings on the part of a constable appointed by said justice under Sec. 6685 by virtue of Sec. 6687.”

The liability of the plaintiffs in error to answer for the wrongful acts of the special constable is founded on the official bond, given by one of them as principal and the other as surety, and the petition itself shows that the bond is made the basis of the action. Section 11226 G. C., therefore, fixes the time within which the action must be brought, which is ten years, and since that time had not elapsed when the action was started, the claim sued upon was not barred, and the court below committed no error in so deciding.

We find no error in any of the other matters complained of in the petition in error, and the judgment of the court of common pleas is affirmed.

Marvin and Winch, JJ., concur.


text:
    INTOXICATING LIQUORS
    [Cuyahoga (8th) Circuit Court,
    February 5, 1912.]
    Marvin, Winch and Niman, JJ.
    In Re Intoxicating Liquors (Residence District Petition).
    Effect of Changes in Dry Local Option District.
    Under Sec. 6142 G. C., a wet petition can only be filed and allowed for the same residence district previously petitioned dry;, hence, if meanwhile part of the district has been cut off and added to another dry district the balance of the district can not become wet.
    Error.

      A. W. La/mson, C. M. Earhart and G. E. Hartshorn, for plaintiffs.

      E. K. Wilcox and Geo. W. Shaw, for defendant.
   WINCH, J.

In this case we are called upon to review the decision of the mayor of Cleveland holding a wet petition, so-called, sufficient and permitting the sale of liquor in certain territory which, more than two years before had been petitioned dry.

The petition held sufficient by the mayor was filed April 3, 1911, under the provisions of Sec. 6142 G. C., which says that:

“When a majority of the qualified electors of a residence district of a municipal corporation in which the sale of intoxicating liquors as a beverage has been prohibited under the provisions of the next two preceding sections, sign a petition against prohibiting the sale of intoxicating liquors as a beverage in the same residence district and file such petition with the mayor of the municipal corporation or with a judge of the court of common pleas in the county, such mayor or judge shall examine the petition at a public hearing and decide upon the sufficiency thereof, and cause a copy of his decision to be filed with the clerk of the municipal corporation or council. Such petition shall not be filed until after two years or more have elapsed after the filing of the petition provided for in section sixty-one hundred and forty. ’ ’

The petition filed April 3, 1911, was in all respects regular and in conformity to the law, and was properly held sufficient, unless defeated by proceedings subsequently brought, under another section of the statutes, for that specific purpose.

Under favor of Sec. 6157, which provides that, “At any time after two years from the filing of a petition under sections sixty-one hundred and forty and sixty-one hundred and forty-one, another petition may be filed under the provisions of such sections, covering part or all of the territory included in the first petition, with or without other contiguous territory,” another petition was filed on April 13, 1911, with one of the judges of the common pleas court of Cuyahoga county, in which the city of Cleveland is situated, and this petition covered the northerly one-third of the territory described in the first petition and much more contiguous territory to the north of it, and prayed that the territory therein described be made dry.

This dry petition applied to territory containing a greater number of resident electors than the wet petition filed with the mayor, and covered territory common to both. At the time it was filed with the judge, the mayor had not passed upon the wet petition filed with him.

Such proceedings were had on the dry petition filed with the judge that it was later held sufficient by him, and thereafter the mayor made the ruling on the wet petition which is here under review.

Section 6145 provides:

“When there are pending two or more petitions under the next five preceding sections, including territory common to all, that petition shall have precedence which applies to the territory containing the greatest number of resident electors,” etc.

The plaintiff reading of this section entitled the dry petition before the judge to be heard before the wet petition was heard by the mayor, for they were both pending at the same time, they included territory common to both, and the dry petition applied to territory containing the greater number of resident electors.

The dry petition was first heard and held sufficient, and thereby the wet petition was displaced and rendered obsolete. It was error, therefore, for the mayor to thereafter allow the wet petition; it had, by operation of law, become of no validity, for part of the territory covered by it had meanwhile been cut off and made dry, and under Sec. 6142, a wet petition can only be filed and allowed for the same residence district previously petitioned dry. It was no longer the same.

It is claimed that this construction of the statutes, produces an unjust result; fosters political trickery; disfranchises the electors in the southern two-thirds of the original dry territory, so far as the liquor question is concerned; brings about a process of “shingling” so-called, on the part of the drys; that is, enables them, by taking a very small portion of a district once petitioned dry and ineluding it with other contiguous territory, to destroy the autonomy of the original district and prevent the remaining and greater portion of it from ever becoming wet again.

This argument should be addressed to the Legislature and not to the court. An amendment to Sec. 6157, giving the wets and the drys equal privileges in forming new'districts, would be more fair, if the question of fairness is to be considered.

Under the Constitution, however, it seems that the Legislature has plenary powers in the regulation of the liquor traffic, and can wholly prohibit the traffic if it desires to do so. Any injustice in the exercise of these powers by the Legislature can not be remedied by the courts.

The order complained of was contrary to law and is reversed, and on the conceded facts, the petition is dis-allowed.

Marvin and Niman, JJ., concur.


text:
    ACTIONS — CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    January 29, 1912.]
    Marvin, Winch and Niman, JJ.
    Charles W. Smith v. Union Savings & Banking Co. et al.
    Joinder of Causes of Actions for Unpaid Stock Subscriptions and Fraud for Inducing Sale Denied.
    To a cause of action brought by a stockholder for the collection of unpaid subscriptions to stock, said cause of action purporting to be for the benefit of the corporation, its creditors and all its stockholders, there can not be joined a cause of action in favor of the plaintiff as an individual against a resident of another county, for fraud in inducing plaintiff to buy his own stock. Summons in such case on the resident of another county will be set aside and Quashed.
    Error.

      A. E. McKisson, for plaintiff in error.

      Stearns, Chamberlain & Boyan, for defendant in error.
   WINCH, J.

The question in this ease is whether service upon the defendant, the New First National Bank of Columbus, Ohio, was properly set aside and the summons quashed by the common pleas court.

A determination of this question requires an examination of the issues tendered by the pleadings, for if the action is for money only, Sec. 11281 G. C. was not complied with, there being no indorsement on the summons of the amount claimed in the petition for which judgment was asked; and, if said defendant was not a necessary party to a complete determination of the case, the plaintiff was not entitled to have a summons issued to any other county, under the provisions of Sec. 11282 G. C.

The petition purports to set forth a cause of action in favor of a stockholder of a corporation for the collection of unpaid subscriptions to stock.

It sets forth that various defendants, among them one E. W. Christy, subscribed for various numbers of shares in the Union Savings & Banking Co., a corporation under the laws of Ohio, with its principal office and place of business in the city of Collinwood, Cuyahoga county, Ohio, for which shares said defendants agreed to pay, respectively, the sum of $100 per share; that without payment of said subscriptions, the company caused certificates to be issued to said subscribers representing that each had paid fifty per cent, of the face value of his shares, whereas, in fact, they had made no payments therefor; that the company had failed, became insolvent and was in the hands of a receiver who was administering the assets of the company for the benefit of the creditors. That the assets in the hands of the receiver were wholly insufficient to pay its liabilities, which were so large that it would require the payment by all the stockholders, including the plaintiff, of their entire unpaid subscriptions to liquidate-said liabilities.' That the directors of the corporation had refused to make calls for the payment of said subscriptions, and that the receiver had refused to take any steps to collect-the same.

The plaintiff alleges that he brings his'action for the benefit of the creditors of the corporation] and"his prayer is that the court ascertain who are the owners, legal and equitable of its stock, and require them severally to pay the unpaid subscriptions on their-stock, the fund thus obtained to be administered' for the benefit of the corporation.

Passing no opinion upon the sufficiency of this petition, it is clear that though the petition asks a money judgment against the defendant stockholders, still the action attempted to be set up is one which requires the exercise of equity jurisdiction, for the plaintiff does not ask a money judgment in his own behalf, but only the incidental relief of having payment made of the debts of a corporation, in which he is a stockholder.

In this respect the case at bar is distinguishable from the case of Smith v. Johnson, 57 Ohio St. 486 [49 N. E. 693], where the action was brought by a receiver, who had succeeded to the rights of the corporation, and was held entitled to maintain an action at law to collect unpaid subscriptions. The distinction here applied is mentioned by Judge Spear on page 488 of the opinion in the ease cited. - '

. This does not settle the question, however, for the New First National Bank was not made a defendant to the original petition, but was brought in by a subsequent pleading; ■

The plaintiff, some time after the ease began, filed what he denominates an answer and cross-petition, making one Charles W. Loomis and the New First National Bank of Columbus, Franklin county, Ohio, parties defendant in the cause, and it is on this pleading that the summons, subsequently quashed, was issued for said bank.

Adopting in this pleading the allegations of.his petition, as he says, “so far as the same may be necessary,” the pleader proceeds to set forth that' some 250 shares of the stock of the Union Savings & Banking Co. was issued .without payment therefor, to the defendant E. W. Christy, that said stock was acquired by himself and said'Charles W. Loomis; that at the time they acquired said stock, “said C. W. Loomis, in common with the officers and agents of said national bank, represented and said that all of the face value of said stock had been paid in full, and that there was nothing due and unpaid thereon; that said banking company was in a flourishing condition and making money; that said stock was worth par; that it was ‘as good as wheat;’ that said banking company was solvent and making money, in order to induce this cross-petitioner to purchase a one-half interest in said capital stock and pay for the same. ’ ’

Then follow allegation as to the falsity of said representations, that Loomis and the officers and agents of the national bank knew said representations were false when they made them; that plaintiff relied upon said representations, etc. In fine, the plaintiff, if he makes out any case at all against said national bank, sets forth one which would entitle him to damages for the alleged fraud committed by said national bank, when he purchased said one-half interest in said 250 shares of stock.

There is no allegation in this pleading that the national bank was ever the owner of said 250 shares of stock.

The prayer of the pleading is that:

“Charles W. Loomis and the New First National Bank of Columbus, Ohio, may be found to be jointly and severally liable on the unpaid balance of the $25,000 of capital stock of the Union Savings & Banking Co., a one-half interest in which was originally sold to this cross-petitioner as aforesaid; and further, that whatever judgment may be found due on the said $25,000 of stock be first ordered to be paid by said Charles W. Loomis and said the New First National Bank of Columbus, Ohio, either severally or jointly as aforesaid; and for such other and further relief by reason of the premises as the nature of this case may require.”

In other words, the pleader asks that the national bank be compelled to pay what he himself, as assignee and transferee of the stock, is liable for, under Sec. 8674 G. C., because said national bank by fraud induced him to buy said stock.

This issue has no connection with the issues raised by the petition or the relief prayed for therein. It is a personal right claimed to exist in favor of Smith, an individual, and not for the benefit of the creditors of the corporation for whom he brought the original action. The creditors might, perhaps, hold a former owner of the stock, if Smith were insolvent, but there is neither an allegation of Smith’s insolvency nor that the national-bank was a former owner of the stock. The plaintiff can not inject this independent cause of action against a resident of Franklin county into a case pending in Cuyahoga county with which it has no connection, and thus obtain a' right to have summons issued in Franklin county.

The action outlined in said cross-petition was not-rightly brought in Cuyahoga county, within the purview of Sec. 11282, G. C. and so summons on it could not issue to any other county.

It follows that service of summons in Franklin county was properly set aside, and the judgment of the common pleas court is affirmed.

Marvin and Niman, JJ., concur.


author: MARVIN, J.

text:
    TENDER
    [Cuyahoga (8th) Circuit Court,
    February 6, 1912.]
    Marvin, Winch and Niman, JJ.
    Bernard H. Sinks et al v. Hugh M. Green.
    Tender Vitiated by Attaching Condition.
    A tender of stock is not sufficient when there is coupled with it a condition that the party to whom the tender is made shall pay more for it than he has agreed to pay.
    Error.

      Henry & McGraw, for plaintiff in eror.

      M. P. Mooney, for defendant in error.
   MARVIN, J.

Green was the plaintiff below and will be so spoken of in this opinion. Sinks and others were defendants below and will-be so spoken of in this opinion.

The plaintiff recovered a judgment against the defendants in an action brought by him to recover the amount he says the ■defendants’ owed to Mm upon a contract for the sale of certain stock in the Williams & Rogers Co., a corporation, or perhaps more properly stated, for damages for refusing to carry out the contract which he says the defendants made for the purchase of such stock.

The case in the court of common pleas was reférred to Hon. John G. Hale, a former member of this court, who found the facts and his conclusions of law and reported the same to the court of common pleas. It is agreed here that the facts found by the referee are the real facts and the only facts necessary to be considered in the case. It is objected, however, that his conclusions ef law from the facts are not justified, and the court of common pleas- so found,- the conclusions found by the referee being such as to deny to‘the plaintiff any right to recover. The court allowed a recovery. So then, we know the facts upon which the plaintiff is entitled to recover, if he is entitled to recover at all.

The contract which the plaintiff says the defendants refused to carry out, and because of which refusal he claims to be entitled to recover here, was entered into between Thomas Rogers, acting on behalf of himself and certain other persons associated with him in thé ownership of the stock of the Williams & Rogers Co., on the one part, and William C. Roberts, acting upon behalf of himself and the defendants in this action on the other part. Several contracts were entered into by these parties, each supplementing a prior contract. It is sufficient to say in regard to .them that the parties originally represented by Rogers in the sale proposed to sell, and did sell, 1,400 shares of the. stock of this corporation, there being in all 2,000 shares of such stock. A price was agreed upon in the original contract, based upon an inventory of the assets of the corporation. By supplements made to this contract, the price was to be varied according as it should turn out that there was an over-valuation of certain parts of the assets. The final contract as agreed upon contained this clause:

“It is further hereby agreed that if at any time within two years from the date hereof the owners of said 600 shares or of any 100 shares shall elect to sell their said stock to second party at the price aforesaid, upon the terms of payment of the par value thereof -in equal semi-annual installments, payable in six, twelve, eighteen and twenty-four months respectively, evidenced by four promissory notes bearing interest at six per cent, per annum payable semi-annually, and the balance of said purchase price in cash at the time of purchase, the said party of the second part will, within thirty days after written notice of the election to him, accept, and pay for the said stock in the manner aforesaid, and said party of the second part hereby gives to said party of the first part, or the holders of said shares the privilege and option to sell same to him upon the terms hereinbefore in this paragraph set forth. ■ The promissory notes to be given as aforesaid to be signed by satisfactory responsible parties to the approval of the president of the Central National Bank of Cleveland.”

The plaintiff was the owner of 100 shares of this stock. He claims that he tendered the stock to the defendants and demanded of them that they carry out the provisions contained in that part of the contract hereinbefore quoted. What he did was, on August 12, 1908, he sent a letter' to the -several defendants in this suit, except Aaron Skall, in which he said:

“The undersigned * * * hereby gives you (who were represented by William C. Boberts in the making of said contract) formal notice that he hereby takes advantage of, and exercises the option therein given him, to sell his said one hundred shares of stock in said company, to you at the price provided1 for in said contract, and upon the terms therein set forth, to wit: the same price per share as was agreed by said contract to be paid for the other fourteen hundred shares mentioned therein, and upon the terms hereinbefore set forth. * * * The undersigned is ready, and hereby offers to deliver to you the said one hundred shares of said- stock upon delivery to him of -four notes sighed as aforesaid.”

The referee found that this was not a tender of the stock. In this we think the referee was'clearly right. Nor was it necessary that he should then tender the stock, nor was it probably intended by him as a tender. It will be noticed that- the contract provides that the party of the second part “will, within thirty days after written notice to him of such election, accept and pay for the said stock in the manner aforesaid. ’ ’ The letter of August 12, 1908, was such notice, and if followed up by a tender of the stock after thirty days from the giving of. such notice and within two years from the date of the contract, the plaintiff would have complied with the contract and would have been entitled to recover the price agreed upon to be paid therefor, unless it be that the plaintiff was not entitled to the benefit of this contract, though made for his benefit and made between the parties who made it. As we view this case, it is not necessary to consider that question because, however, we should hold upon it, we should reach the result which we do reach in deciding the case.

On June 3, 1909, which was within two years of the date of the contract, and more than thirty days after the notice hereinbefore spoken of, the plaintiff wrote to each of the defendants the following letter:

1 ‘ Cleveland, Ohio, June 2, 1909.
“Mr. B. H. Sinks,
‘1 City.
“Dear Sir: Pursuant to my written notice served upon you, bearing date of August 12, 1908, in which I notified you of my election to sell my stock to you upon the terms set forth in the contract of June 28th, 1907, therein referred to, tendered you my said stock and demanded payment therefor in accordance with the provisions of said contract, I hereby renew my tender of said stock, preliminary to the commencement of suit, and offer to deliver same to you on the payment to me in cash of the sum of $3,801.55 and the delivery to me of four notes as follows: one for $2,500 payable in 8 months after date; one for $2,500 payable in 12 months after date; one for $2,500 payable in 18 months after date; and one for $2,500 payable in 2'é months after date. Said notes to bear interest at six per cent, per annum, payable semi-annually, and to be signed by satisfactorily responsible persons to the approval of the president of the Central National Bank of Cleveland, Ohio.
“I herewith make the actual tender to you of certificate No. 52 for 100 shares in the capital stock of the Williams & Rogers Company, standing in my name, and duly endorsed for transfer. Upon failure by you to deliver me said cash and notes, signed as aforesaid, and to accept said stock, I shall at once begin suit against you to recover the amount due me.
“Very truly yours,
“Hugh M. Green.”

And then produced a certificate for 100 shares of stock in this corporation, and as appears from the letter said:

“I hereby renew my tender of said stock preliminary to the commencement of suit, and offer to deliver the same to you on the payment to me in cash of the sum of $3,801.55, and the delivery to me of four notes as follows: one for $2,500 payable in 8 months after date; one for $2,500 payable in 12 months after date; one for $2,500 payable in 18 months after date, and one for $2,500 payable in 24 months after date.”

It will be noticed that this offer and tender was accompanied with the condition that the amount to be paid therefor was $13,801.55. It is conceded that by reason of certain deductions which were to be made if the inventory should be changed, and which inventory was changed • by the agreement of the parties to the original contract, the amount demanded was more than the amount to which the plaintiff was entitled, if he was entitled to be paid the agreed price. And so we come to the question, and to us the only question which we regard as necessary to determine in order to properly determine the case before us: Was this tender sufficient?

We do not base the conclusion to which we come upon the question of whether this tender of the stock which the contract required was to be regarded as requiring a delivery of the stock as a condition precedent to the bringing of the suit. The two things to be done, that is to say, the delivery of the stock and the payment therefor, were to be contemporaneous; they were to be done at one and the same time, and the plaintiff did all that was ncessary for him to do in order to entitle him to bring the suit, unless he imposed a condition which took away the validity of his tender. He says in his petition that the amount to be paid for the stock is $13,801.55 and he says:

“Plaintiff has been, from thence up (that is from the 12th day of August, 1908) to the beginning of this action, and still is, ready and offers to deliver his said 100 shares of said capital stock to the said defendants, upon payment to him of the purchase price thereof as provided in said contract, and he brings the said shares of said capital stock here into court to be delivered to the said defendants upon the payment by them of said purchase price.”

The purchase price about which he is talking, and which he says they agreed to pay him, was $13,801.55. As already said, it is clear that the purchase price was not so much as this by a considerable amount, because of the deductions which had been made from the inventory, and which] as to a part thereof at least, were well known to the plaintiff at the time he offered to deliver the stock, to wit, on the 3d day-of June, 1909.

We are of opinion that the plaintiff did not make such a tender of the stock either in August, 1908, or in June, 1909, as entitles him to maintain his action. The. tender made was conditional, and' it was conditional upon the_ payment to him of an amount to which he was not entitled.

In 3 Page, Contracts 3, Sec. 1421, it is said:

£ £ The debtor may attach a condition to the tender requiring the creditor to perform some act which he would be in any event legally bound to do without affecting the sufficiency of the tender. ” ■

In See. 1422 of the same writing it is said:

“If, however, the debtor, attempts to impose any condition not required by law, such as. demanding that, the tender , be accepted as full performance, or that a discharge or a release in full be given, or that a right of appeal be waivéd, or that in connection with the debt in question other claims between the same parties be settled, the tender is insufficient.”

Without quoting further, from this section, it seems clear from the whole section that the writer does not regard a tender as sufficient where there is coupled with it a condition that the party to whom the tender is made shall do something which he is not bound by law or the contract to do, and this text is supported by a large number of authorities.

In the case of Raudabaugh v. Hart, 61 Ohio St. 73 [55 N. E. 214, 76 Am. St. 361], the second paragraph of the syllabus reads as follows:

“Where two acts are to be done at the same time, as when the vendor has agreed to convey interests in real estate upon the payment of a given sum as purchase money, the deal to be closed by a certain day named and the purchaser has agreed to pay the purchase money, a part on that day and balance in one year, the conditions are what are known in law as mutual conditions, and neither party can maintain an action against the other without averring a performance, or an offer to perform on his part. Mere willingness and readiness to perform, uncommunicated to the other party, will not avail. And it is not, in such case, sufficient that the plaintiff aver that from the date of the making of the contract to and including the day at which it was to be completed, ‘he was ready and willing to do and perform everything to be done by him in the carrying out of said sale and contract.’ Nor are the averments sufficient, when, in addition thereto, he avers that ‘the defendant, although often requested so to do, has refused to comply with said contract, and has at all times refused to transfer and deliver said property to plaintiff.’ ”

On page 89 of the same opinion, the court said:

“But there seems no doubt as to the rule in this state. In McCoy’s Adm’r v. Bixbee, 6 Ohio 310, it is held that ‘Covenants to convey a tract of land, specifying no time of conveyance,' and a covenant to pay therefor so much money in hand and so much at a future day, are mutual covenants. In such a ease a purchaser can not have a cause of action, without averring the payment or tender of the purchase money.’ And in Campbell v. Gittings, 19 Ohio 347, it is held: ‘Where an article contains a covenant by one party to execute and deliver a warranty deed, and by the other to execute and deliver, .when the deed is tendered a bond and a mortgage fór the purchase money, though the party named neglect or refuse to deliver the deed, the other is not entitled to sue, after having neglected, at the proper time, to offer or tender a bond and mortgage; and a declaration on the covenant to make a deed containing an averment that the plaintiff offered to execute a bond and mortgage, without averring a tender, or what is equivalent thereto is bad on demurrer. ’ And in the opinion by Avery, J., is is said: ‘The covenants of these parties respecting the deed, and the mortgage to secure the purchase money, being both to be presentd on the same day, are dependent covenants in which, according to a clear legal principle, performance can no.t be exacted from either- party, as a condition precedent. Both, it is understood must perform at .the same time, neither being under any obligation to trust the other. ’ ’

The conclusion reached by us, as already said, is that the plaintiff did not, within two years from the date of this contract, 'make such tender to the defendants of the stock as entitles him to maintain his action, and there being no dispute as to the facts in this ease, but' all being conceded, we reverse the judgment of the court of common pleas and proceed to enter the judgment here which should have been entered in that court, that the petition of the plaintiff be dismissed at his costs.

Winch and Niman, JJ., concur.