text:
    MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS.
    [Butler (1st) Circuit Court,
    April, 1905.]
    Jelke, Swing and Giffen, JJ.

      John B. Scott, a Taxpayer, etc. v. Hamilton (City) et al.
    1. POWERS OF BOARD OF PUBLIC SERVICE MINISTERIAL.
    A board of public service, where required by a street improvement ordinance to choose one of three materials after bids were received, performs only a ministerial act, and as the agent of the city council executes its legislative command.
    2. Courts cannot Review Acts of Board, when.
    There is no statutory provision requiring that the discretion of the board ■of public service in the selection of material for the improvement of a street shall be controlled by the wish of the property Owners, and where the board exercises its/discretion in good faith, its decisions cannot be interfered with by the courts. >
    3. Award of Contract, Discretionary Power. , j

    The.provision of Lan. Rev. Stat. 3131 (B. 1536-679) that the public service board “shall make a contract with the lowest and best bidder,” does not require that the award be made to the lowest bidder, and where the action 7 of the board in awarding the contract is free from fraud, its discretion cannot be controlled.
    [For other eases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§ 1372-1384. — Ed.]

      INJUNCTION.
    Andrews & Harlan, forv plaintiff.
    Warren Gard, Frank Richter and U. G. Denman, lor defendants.

       Affirming Scott v. Hamilton, 16 Dec. 660.

   GIFFEN, J.

This action was commenced to enjoin the board of public service of the city of Hamilton from entering into a contract with the defendant, William N. Andrews, to pave East High street with asphalt block, for the reasons:

1. That the city council did not designate the material to be used m such improvement, but left it to the discretion of the board of public service to select either' sheet asphalt block, o-r vitrified brick, after the bids therefor were received.

2. That a majority of the owners of abutting real estate petitioned council to pave with vitrified brick, and that such material is superior for the purpose; and that block asphalt is defective and worthless as a paving material. ■

3. That the bid of William N. Andrews was not the lowest and best; that the contractors who made lower bids were competent and experienced, and William N. Andrews has had no practical or scientific knowledge or experience with this kind of work; that he has no plant and no means of establishing such a plant as is required to prepare said paving material.

4. That the board of public service made no investigation and acted in bad faith.

5. That a portion of the cost of said improvement was to be paid by the city of Hamilton, and that the certificate required by Sec. 45 of the Ohio municipal code (Lan. 3999; B. was not made by auditor of said city.

6. That asphalt block is a patented article, controlled by a certain company or trust, which prevented competitive bidding for the paving of East High street with that material.

The question to be considered is, whether the city council is required by statute to designate the particular material of which the street is to be constructed before bids can be received. Section 55 of the municipal code (Lan. 3606; B. 1536-215), as passed October 22, 1902, provides as follows:

“At the expiration of the time limited for filing claims for damages, * * * the council shall determine whether it will proceed with the proposed improvement or not, * * * and if it decides to proceed therewith, an ordinance * * * shall contain a statement of the general nature of the improvement and the character of the materials thereof.”

The same section as amended April 19, 1904 (97 O. L. 122), provides that—

“The ordinance shall contain a statement of the general natxire of the improvement and the character of the materials which may be bid upon therefor.” ■

The intention of the legislature as expressed either in the original section or as amended, was evidently to authorize council to designate, not the particular material with which the street should be paved, but to state the general character of the same. It is said, however, it is the policy of the municipal code to keep separate and distinct legislative and executive' function; that the former was conferred upon the city council and the latter upon the board of public service; and that by the ordinance directing the board of public service to receive bids on three different kinds of material for the improvement, the council delegated its authority to the board of public service. without legal sanction. In State v. Nash, 66 Ohio St. 612 [64 N. E. Rep. 558], the third proposition of the syllabus is as follows:

“The duty and power of making ¿ppointment to fill a vacancy in the office of lieutenant governor is not specially conferred on the executive branch of the government by the constitution, and rests wherever the legislature may vest it. * * * Such duty being imposed on the governor by statute; it is not an executive function but is a ministerial duty.”

And on page 618 it is said:

“The governor is allowed no discretion as to acting, however much discretion he must necessarily exercise in selecting the person whom he shall appoint.”

The case of Hitchcock v. Galveston, 96 U. S. 341 [24 L. Ed. 659], is as follows:

“Where a city council is vested with power to cause sidewalks in the city to be constructed it may authorize the mayor, and the chairman of the committee on streets and alleys, to make, in its behalf and pursuant to its discretion, a contract for doing the work. ’ ’

And on page 348 it is said:

“It is true, the council could not delegate all the power conferred upon it by the legislature, but, like every other corporation, it could do its ministerial work by agents. Nothing more was done in this ease. The council directed the pavements, ordering them to be constructed of one or the other of several materials, but giving to the owners of abutting lots the privilege of selecting which, and reserving to the chairman of their committee authority to select, in case the lot owners failed. The council also directed how the preparatory work should be done. There was, therefore, no unlawful delegation of power. ’ ’

Under thesé decisions we think that the board of public service, although required by the ordinance to choose one of these materials after the bids were received, only performed a ministerial act and as the agent of the city council executed its legislative command.

After council had determined what materials would be suitable for the particular improvement, the wisdom of receiving bids upon more than one kind is found in the fact that greater competition is hereby secured, and that the relative amount of the respective bids may determine the particular material to be used.

In answer to the second reason assigned why an injunction should be granted, it may be said that the statute makes no provision whereby the discretion of the board may be controlled by the wish of abutting property owners, and so long as the board acts in good faith, its decision controls.

The objection that the bid of the defendant, William N. Andrews, was not the lowest an$ best, is not a good ground for granting an injunction, because Sec. 143 of the municipal code (Lan. 3131; B. 1536-679) provides that “the directors of public service shall make a contract with the lowest and best bidder,” and if the action of the board in awarding this contract was free from fraud, the discretion thus conferred cannot be controlled by the courts. State v. Hermann, 63 Ohio St. 440 [59 N. E. Rep. 104],

While the members of the board did not make such investigation of the respective merits of the materials bid upon that a prudent business man would do, if he were about to make like improvements on his own account, yet they did in good faith make an examination and investigation of the materials bid upon. And while the defendant, William N. Andrews, displayed eagerness and some indiscretion in securing the contract yet his acts were not badges Of fraud, but rather the exhibition of undue haste and anxiety to secure the contract.

We hold, therefore, that the transaction was not in the least tainted with fraud. The claim that the auditor had not certified that the money required for the contract was in the treasury to the credit of the fund from, which it was to be drawn, .cannot prevail in this case, for the reason that the contract was not to be performed within one year.

Finally, the evidence shows that at the time of the contract, asphalt block was not a patented article, and there is no evidence to sustain the allegation that there was collusion between the agent of the trust, William N. Andrews, and the board of public service.

The injunction will be denied.

Jelke and Swing, JJ., concur.


source: Caselaw Access Project

author: HAYNES, J.

license: Public Domain

text:
    MUNICIPAL CORPORATIONS — RAILROADS—STREETS.
    [Lucas (6th) Circuit Court,
    March 22, 1907.]
    Haynes, Parker and Wildman, JJ.
    Toledo (City) v. Toledo, St. L. & W. Ry.
    1. Jurisdiction of Probate Court in Railroad Crossing .Condemnation Cases.
    The jurisdiction of the probate court in the matter of condemnation proceedings brought by a railroad company for the purpose of acquiring the right to cross a street or highway with its tracks is confined to the question of the necessity of making the crossing and assessment of compensation therefor.
    [For other cases in point, see 3 Cyc. Dig., “Courts,” §§ 1271-1289; 4 Cyc. Dig., “Eminent Domain,” §§ 526-535; 867-869; 7 Cyc. Dig., “Railroads,” § 204. — Ed.] '
    2. Jurisdiction of Question of Crossing at Grade, Above Grade or Below Grade Exclusive with Common Pleas.
    Whether the crossing shall be at grade, above grade, or below grade' is a matter entirely within the jurisdiction of the common pleas; and where the railroad company has acquired the right to cross by proper pro-' ceedings in the probate court, the privilege so granted is without any reference to the character of the crossing with reference to grade.
    [For other cases in point, see 7 Cyc. Dig., “Railroads,” §§ 204, 319-326; Cyc. Dig. Supp., “Courts,” § 97. — Ed.]
    3. Evidence that Crossing is within Exception in 97 O. L.• 546 Erroneously Excluded.
    In an action brought in the common pleas to enjoin the laying of a crossing at grade under a grant from the probate court, it is error to- exclude testimony offered by the railroad company for the purpose of showing that the crossing in question falls within the exception provided in 97 O. L. 546 (Lan. 5332 et seg.; B. 3337-17j et seq.).

    [For other cases in point, see Cyc. Dig. Supp., “Railroads,” §§ 48-50. — Ed.']
    4. Permission of Municipality t.o Lay Spur Track Across Street not Necessary, when.
    Where the proposed crossing is by a spur track leading to manufacturing establishments, commercial houses and certain docks, it falls within the exception as to tracks for increasing “yard facilities at terminal or other points,” and the company has the right under the statute (Lan. 5332; B. 3337-170) to cross at grade.
    [For other cases in point, see Cyc. Dig. Supp., “Railroads,” §§ 48-5Ó. — Ed.]

      Appeal from Lucas common pleas court.
    Brown, Geddis, Schmettau & Williams, for plaintiff,
    C. S. North up, city solicitor, and J. P. Mantón, for defendant.
   HAYNES, J.

This case comes here by appeal and with it is also a case in error entitled Toledo, St. Louis & Western Railroad Company v. City of Toledo, growing out of the case first mentioned. It seems, from the history of the case,' that the railroad company filed in 1906 a petition in the probate court for the purpose of appropriating a right of way across Brie street at a point that was mentioned in the petition; that such proceedings were had that the court first entertained a hearing as to whether it was necessary or not, etc., according to the statute, and a finding was made in favor of the railroad company, and a jury was ordered and was subsequently impaneled, which assessed the damages to be paid by the railroad company in the sum of $200, and an order was entered that the railroad company might enter upon the property appropriated and lay its track across the street, and thereupon the railroad company took steps to lay its track. •

At this point the city of Toledo, by direction of the council of the city, interposed by the petition in question, setting up the facts in this appropriation proceeding, and averring that the railroad company was about to lay its track at grade across the street, and averring that under the statutes of the state of Ohio it was the duty of the railroad company to build an overhead bridge, ahd praying for an injunction restraining the company from crossing the street at grade, and for an order requiring them to build an overhead bridge. The petition sets out in substance the proceedings as they appear in the record, or largely so; that is the substance of the petition. The object and purpose of this petition is to compel the railroad company to go into the court of common pleas, under certain sections of the statutes that are mentioned, and obtain an order from the court of common pleas in regard to the crossing. The defendant answers, admitting many things set up in the petition which are matters of record, but among other things denies “that the track in respect of which it has appropriated the right to use and occupy a portion of Erie street aforesaid in the proceedings in the Lucas probate court above set forth,' is an extension of its main line from its present terminus in the city of Toledo, or a main track, and denies each and every other allegation in plaintiff’s petition contained and not hereinabove specifically admitted. *• * * On the contrary, defendant avers that the track, in respect, of which it appropriated the right to use and occupy the above de'sci’ibed portion of Erie street, is a switch or siding from its lines of railroad now constructed, to mills, factories and other manufacturing establishments, industrial plants and piers located on the east side of Erie street aforesaid, and is an additional track to increase its yard facilities at its present terminals.”

As I have said, the object of this petition is to prevent the railroad crossing or laying its tracks across the street until it has conformed with a certain statute that was passed April 25, 1904 (97 O. L. 546; Lan. 5332 et seq.; B. 3337-17j et seq.), approved May 3, 1904. The first section provides:

“Except as in this act elsewhere provided, all crossings, hereafter constructed, whether of highways by railroads, or of railroads by highways, shall be above or below the grade thereof. ’ ’

Section 2 provides:

“Every railroad company constructing a new line of railroad, under its charter powers, across a highway, shall construct the same above or below the grade of the highway, unless permitted in the maimer hereinafter provided, to construct the same at grade; and such railroad company may exercisé the power contained in its charter and the general laws, for altering the grade and location of highways in order to avoid grade crossings. ’ ’

Section 4 further provides, among other things:

“A petition shall be presented by the party desiring such construction” (a crossing at grade) “to the court of common pleas of the county within which said crossing is situated upon ten days’ notice to the corporation owning said railroad, or to such municipality 'or authority, describing the proposed construction, and setting forth the reasons that are supposed to make the same necessary or desirable; and the court of common pleas shall thereupon have jurisdiction of the parties and the subject-matter of such petition, and may proceed, summarily or otherwise, and upon such notice as it shall deem sufficient, to examine the, matter, either by evidence, by reference to a master commissioner or otherwise; and, if satisfied that such construction is reasonably required to accommodate the public, or to avoid excessive expense, in view of the small amount of traffic on the highway or railroad, or in view-of th.: difficulties of other methods of construction, or for other good and sufficient reasons, then it shall make an order o.r orders permitting such crossing at grade to be established. ’ ’

That is to say, in brief, that the statute provides that the railroad shall build an overhead track, unless the court of common pleas makes a finding that it is proper and desirable and for the public benefit that it may cross at grade.

But the first section, it will be observed, provides — “except as in this act elsewhere provided. ’ ’ Section 6 contains an exception:

“Nothing in this act shall prevent any railroad company from laying additional tracks at crossings previously existing, or from constructing switches, sidings and branch lines from their lines of railroad now or hereafter constructed to any mill, factory, or other manufacturing establishment, or other industrial plant, or any elevator, wharf or pier, or gravel, marl, or clay bed, or any mine, or from laying additional track to increase their yard facilities at terminal or other points across public highways at the grade thereof, but such feign posts and signals shall be employed for the protection of such crossings as are by law prescribed for railroad crossings of public highways.”

The defendant avers that the track it is about to extend pver Erie street comes within this exception; that it is a crossing at a terminal point, and is made to reach other buildings and factories for the purpose of facilitating the terminal facilities.

There was attached to this petition for condemnation or appropriation a map, a copy of which I hold. The original record was offered in evidence, and I simply refer to this because it is convenient; I have examined the original and this is a copy. Now, the map that was attached to the petition showed that what was originally a main line had come down around to the north of this crossing and had intersected, approached, or touched Erie street at a point a considerable distance east of this point. It shows that there was a large number of side tracks reaching out from that terminal and coming down to Erie street. It shows that the freight house is at that point adjoining on Kraus street, and that the office building of the company recently constructed is upon the same piece of property and adjoining Kraus street, and these tracks all terminate at Erie street. That lying beyond Erie street is property of manufacturing establishments and of the Gas, Light & Coke Company, and adjoining them is Swan creek, and the line of track they propose to extend comes around in a curve after it crosses Erie street and comes down alongside of the dock and near these- factories. All that is part of the original record of the case.'

The petition having been filed, an injunction was allowed. After that motions were interposed for the dissolution of the injunction and were heard. It appears from the case that upon a motion to dissolve the injunction the court of common pleas refused to hear any evidence whatever, but determined the case entirely upon the appropriation proceedings, in the probate court, and refused to dissolve the injunction, and that was alleged as error, and a petition in error was filed for the purpose of reversing the court upon that interlocutory order. After-wards the case came on and was heard upon its merits, and the court of common pleas in that case also refused to hear any evidence whatever and made an order based upon the appropriation proceedings. The case was then immediately appealed to this court.

Upon the hearing of the case in this court testimony was offered on behalf of the defendant, the railroad company, in regard to the condition of the railroad property at this point. The city, by its attorney, interposed an objection, and that matter was argued. We took the objection offered under advisement, and admitted the testimony subject to the objections, and stated that we would rule upon that when we came to decide the case.

It will be observed, as I stated before, that the controversy here is whether or not this railroad company — the condition of its yard and tracks at this point — will bring it' within the main section of the statute or whether it comes within the exception. The railroad company refused to make any application to the court of common pleas to secure any permission, because it said it was not required to do so; that its right under the exception was absolute; that it had a right to go forward and build its track without asking for this permission; and the object of The city is to restrain them from doing so until they comply with the statute as the city interprets it through its attorneys.

The appropriation proceeding is under Rev. Stat. 3283 (Lan. 5239) and was passed many years ago. The statute provides that:

“If it be necessary, in the location of any part of a railroad, to occupy any public road, street, alley,-way, or ground of any kind, or any part thereof, the municipal or other corporation, or public officers or authorities, owning or having charge thereof, and the company, may agree upon the manner, terms, and conditions upon which the same may be used or occupied; and if the parties be unable to agree thereon, and it be necessary, in the judgment of the directors of such company, to use or occupy such road, street, alley, way, or ground, such company may appropriate so much of the same as may be necessary for the purposes of its road, in the manner and upon the same terms as is provided for the appropriation of the property of individuals;, but every company which lays a track upon any such street, alley, road, or ground, shall be responsible for injuries done thereby to private or public property lying upon or near to such ground, which may be recovered by civil action brought by the owner, before the proper court, at any time within two years from the completion of such track. ’ ’

The authority to cross this street is derived from that section of the statute, or at least it is under that they can proceed and did proceed. The legislature has granted to the defendant company the right to cross this street, provided it does so under the provisions of this statute. That'is to say, they proceed as against individuals under Rev. Stat. 6420 (Lan. 9997), which provides:

“On the day named in any summons first served, or publication first completed, the probate judge shall hear and determine the questions of the existence of the corporation, its right to make the appropriation, its inability to agree with the owner, and the necessity for the appropriation. ’ ’

That matter comes up and is first heard before the probate court, and it determines whether the appropriation is necessary, and whether the proper steps have been taken to declare the desire of the corporation to make the appropriation. That matter underwent some discussion in the Supreme Court in certain eases that went up from this county. Wheeling & L. E. Ry. v. Railway & Term. Co. 72 Ohio St. 368 [74 N. E. Rep. 209; 106 Am. St. Rep. 622], The court is authorized to pass upon the question of the necessity, and upon these other questions generally, for the purpose of preventing any abuse of the right of appropriation; that is to say, that it shall not be appropriated for any other purpose whatever than the purposes that are provided in the statute, and not appropriated for any private ends or any collateral purposes, but simply for the purpose of enabling the railroad in the pursuit of its business and the operation' of its railroad to make the appropriation.

It is contended by the attorneys for the city that the finding of the court in the appropriation proceedings determines the whole character of this, proposed crossing, and that no evidence may be offered for the purpose of showing the situation or conditidn of the grounds or the property of the railroad at this point.

It will be observed’ that this statute under which the probate court proce'eds is an old statute, years and years prior to this statute of 1904, and with the latter statute, as we' understand, the probate court has nothing to do whatever. Jurisdiction in regard, to the matter of permission to cross overhead or at grade is with the court of common pleas. All and everything that the probate court has to do is to make a finding in accordance with the provisions of the statute. The finding of the jury is determined by the oath of the jury. They were sworn in this case as in others:

“You, and each of you, do solemnly swear that you will justly and7 impartially assess, according to your best judgment, the amount of the compensation due to the proper owners in the cases which will be brought before you in this proceeding, by reason of the appropriation of their property described in the petition, to the use of the corporation, in the proceeding now pending, irrespective of any benefit from any improvement proposed by such corporation; and you do further swear that you will, in assessing any damages that may occur to such property owners, by reason of the appropriation, other than the compensation, further ascertain how much less valuable the remaining portion of said property will be in' consequence of such appropriation. ’ ’

That oath was drawn by the legislature under previous provisions of the constitution of the state of Ohio.

In this case the court did proceed and the jury did assess the damages under the rules laid down and fixed the amount, following to some extent the decision of Lake Shore & M. S. Ry. v. Railway, 30 Ohio St. 604, in regard to the crossing of railroads; at any rate the amount was fixed and assessed.

But whether that crossing should be overhead or at grade is a matter with which the probate court had nothing to do, and we are unable to .see how in any manner of form the judgment of the court in that respect can be binding or conclusive, at least upon this other question.

In this action, which is brought by the city of Toledo for the purpose of enjoining the railroad from crossing at grade, the city takes the affirmative and it'declares that the crossing is of such a nature and character as falls within the statute which I have ah’eady read in its first, third and fourth sections, and not under the sixth section. 'And, for the purpose' of enabling this court, or any court, to ascertain in regard to the matter whether the crossing is within, the sixth section or within the first section, parol evidence is perfectly competent and proper and should be resorted ta for the purpose of showing the condition of the grounds, the condition of the tracks, the nature of the track which is to be laid, the purpose for which it is being laid and the points to which it is to run; in other words, to ascertain Avhether it falls within the sixth section of this statute or within the previous sections. We, therefore, overrule the objections that have been made, and wo hold that it was competent for the railroad company ter produce oral testimony, which it did, and to inform the court with regaVd to the character of the property of the railroad company at that point and of the objects and purposes for which the track was to be laid.

It appears that the railroad, the main branch of it, where they commence distributing cars, is on the southerly side of Swan creek and upon the uplands at that point, that some cars are sent off to the connecting railroads, but that for freight purposes, the working of its freight department, the road comes down across Swan creek on.to these lower lands, where the company has purchased or appropriated a large quantity of ground for the purposes of a freight yard, and it is being used for that purpose; that there were across Brie street, upon the other side, certain manufacturing establishments, gas works and other commercial establishments of that kind that they wish to reach, and also that they wish to reach the dock line at Swan creek, and that for that purpose it will be necessary for them to cross the street; that they can do this work by perhaps crossing three times during the twenty-four hours, once during the daytime and the rest of the times during the night; that is the sole expectation and purpose of the use of the crossing. In other words, that it is to increase their “yard facilities at terminal or other points” and to reach these other establishments. And we are clearly of the opinion upon the whole evidence, upon the record of the case and the maps that have been introduced, that the contention of the company is correct, and that under the statute they have the right to cross this street at grade, and that the claim and contention of the city that they have a right to interpose an injunction to. prevent their doing so is not well founded in law, and for that reason the petition in the appeal ease will be dismissed and the order that was rendered as- set forth in the petition in error will be reversed.

Parker and Wildman, JJ., concur.


author: GIFFEN, J.

text:
    CONSTITUTIONAL LAW — SUNDAY LAWS.
    [Hamilton (1st) Circuit Court,
    May 11, 1907.]
    Swing, Giffen and Smith, JJ.
    J. B. Stanfeal, Ex Parte.
    1. Effect of Failure to Provide a Maximum Penalty.
    Failure to provide maximum penalty does not render unconstitutional an act making barbering on Sunday a misdemeanor.
    2. Nature of Remedy for Relief from Commitment for Fine.
    The remedy of one committed for a misdemeanor, and denied the right to secure payment of the fine and costs imposed, is in a proceeding in error and not by habeas corpus.
    [For other cases in point, see 3 Cyc. Dig., “Criminal Law and Practice,” § 1048; 4 Cyc. Dig., “Fines,” §§ 63-65; 5 Cyc. Dig., “Habeas Corpus,” § 78. — Ed.]
    3. Directing Mayor to- Amend Mittimus.
    It is not error on habeas corpus to direct a mayor to amend his mittimus by providing that a fine and costs may be secured to be paid.
    Error to Hamilton common pleas court.
    C. F. Williams, for plaintiff in error.
    Bates & Meyer, contra.
   GIFFEN, J.

J. B. Stanfeal was convicted under Lan. Rev. Stat. 10754 (B. 7033-1), of barbering on Sunday, and sentenced to pay a fine of $15 and costs. It is urged that by the commitment he is denied the right to secure the fine and costs to be paid, as provided by Rev. Stat. 1846 (Lan. 3380; B. 1536-793). While it is true that this omission makes the penalty more oppressive than is warranted by statute, yet it is only an irregularity which may be corrected by proceedings in error, but not by habeas corpus. Van Hagan, Ex parte, 25 Ohio St. 426.

Laning Rev. Stat. 10754 (B. 7033-1) is not unconstitutional and void, because of the failure to provide therein a maximum penalty. The power of the court in administering the law is limited by Sec. 9, Art. I of the constitution of the state. Frese v. State, 23 Fla. 267 [2 So. Rep. 1] ; Yell, In re, 107 Mich. 228 [65 N. W. Rep. 97].

Where a person is convicted under Lan. Rev. Stat. 10754 (B. 7033-1), and ordered to be committed until the fine imposed and costs taxed are paid or he be otherwise discharged according to law, it is not error on habeas corpus to direct the mayor issuing the process to amend the mittimus by providing that the fine and costs may be secured to be paid. People v. Kelly, 97 N. Y. 212; Harris, In re, 68 Vt. 243 [35 Atl. Rep. 55],

Judgment affirmed.

Swing and Smith, JJ., concur.


author: PARKER, J.

text:
    CHARGE TO JURY — CONTRACTS—ESTOPPEL—PARTIES.
    [Wood (6th) Circuit Court,
    April 29, 1906.]
    Haynes and Parker, JJ.
    Frank P. Clark, Admr. v. Abner Boltz et al.
    Recovery eor Care and Support Furnished to a Decedent.
    B and wife brought an action against the administrator of G- for personal judgment on account of care and support furnished to G for a-number of years. The petition set forth an agreement whereunder such care and support were to he furnished to G during the remainder of her life in consideration of a certain house and lot being conveyed to them, of which G died the owner, and intestate. Held:

    1. The action was for a quantum meruit, and the references in the petition to the agreement or contract were surplusage.
    2. The defendant, having successfully interposed an objection to the introduction of testimony as to the value of the house and lot, will not thereafter be heard to complain that the recovery may be for a. much larger sum than the value of the house and lot.
    3. An allegation of demand and default is not necessary in such a case; the presentation of the account to the administrator and its rejection by him was sufficient.
    4. The claim that the proof has established that the cause of action, if any existed, was in favor of the wife, and not in favor of both husband and wife, does not on review furnish a basis for the contention that there has been a misjoinder of parties, where leave to answer as to the alleged misjoinder was not sought at the trial below; nor would the joining of the husband, by gift, assignment or otherwise, in the right of action existing in the wife, be necessarily a matter of any prejudice to the defendant administrator.
    5. Where the record does not affirmatively show that requests for instruc- . tions to the jury before argument were submitted in writing, the correctness of the instructions will not be inquired into by a reviewing court.
    [For other cases in point, see 2 Cyc. Dig., “Contracts,” §§ 3167-3171; 4 Cyc. Dig., “Executors and Administrators,” §§ 639, '640. — Ed.]
    [Syllabus approved by the court.]
    Error to Wood common pleas court.
    S. P, Harrison and Poe- & Poe, for plaintiff in error.
    W. H. McMillen, for defendants in error:
    Cited and commented upon the following authorities: Berry v. Collins, 6 Circ. Dec. 597 (9 R. 656) ; Rev. Stat. 5061, 5062, 5063 (Dan. 8576, 8577, 8578) ; Cannon v. Cheney, 4, Circ. Dee. 335 (8 R. 143) ; EleMron Mfg. Co. v. Electric Co-. 4 Circ. Dec. 555 (8 R. 311) ; Howard v. Levering, 4 Circ. Dec. 236 (8 R. 614); Wangerien v. Aspell, 47 Ohio St. 250 [24 N. E. Rep. 405]; First Nat. Bank v. Green, 40 Ohio St. 431; Cloon v. Insurance Co. 12 Dec. Re. 12 (1 Handy 32) ; Beecher v. Booth, (9 R. 469) ; Reformed Presb. Church v. Nelson, 35 Ohio St. 638; Rfev. Stat. 4996, 4997 (Lan. 8511, 8512) ; Beinheimer v. Carter, 31 Ohio St. 579; 1 Chitty, Pleading (16 Am. ed.) 35; Gallaher v. Thompson, Wri. 466; Bartges v. O’Neil, 13 Ohio St. 72; Rev. Stat. 3108, 5005, 5012, 5013 (Lan. 4808, 8520, 8527, 8528); Gilbert v. Sutliff, 3 Ohio St. 129; Mason v. Alexander, 44 Ohio St. 318 [7 N. E. Rep. 335] ; Farmers’ Mut. F. & L. Ins. Co. v. Ward, 24 O. C. G. 156; Sclnueinfurth v. Bailway, 60 Ohio St. 215 [54 N. E. Rep. 89] ; Cleveland & E. Elec. By. v. Hawkins, 64 Ohio St. 391 [60 N. E. Rep. 558]; Travelers’ Ins. Co. v. Bosch, 13-23 O. C. C. 491; Lake Shore & M. S. By. v. Whidden, 13-23 O. C. C. 85.
   PARKER, J.

The action below was by Abner Boltz and his wife against' Frank P. Clark, administrator of the estate of Catharine Grant, deceased. In the petition it is set forth with considerable particularity that the plaintiffs, being husband and wife, entered into a contract with one Catharine Grant to the effect that the plaintiffs should board and lodge her, and she on her part was to provide a house for all of them; in this house she was to have a special room of her own; the remainder of the house was to be the habitation of the plaintiffs, and at her death this house was to be the property of the plaintiffs as compensation to them for her support. The petition does not so aver, but the evidence discloses that the contract was oral.

The petition does not state distinctly that Catharine Grant failed or refused to perform her part of the contract, but it does disclose that she died intestate the owner of this property, so that it went to her heirs.

The plaintiffs set forth that the value of -what was furnished in the way of services, purchases, support, etc., was $931.90, covering a period of about six years, from January, 1898, until October 10, 1903; and for the same period they credited $5 per month for the use of the premises as rental, making $345; and they ask for a judgment for the balance of $586.90, and interest.

A general demurrer to this petition was filed. It is stated that the point made upon the demurrer was that the petition disclosed that if there •was a cause of action at all, it was one for specific performance, that it was not quite sufficient in its averments for that purpose and there was no prayer for specific performance, but a prayer for personal judgment; that while the petition disclosed, imperfectly a cause of action of that character, the action was in effect an action at law. This demurrer was overruled.

It seems to us that there is a good deal in this petition that might have been safely omitted from it. That, of course, would be no reason for sustaining the demurrer to it; but it is because of this large amount' of matter disclosing the contract and giving to the petition the appearance of a claim for the specific enforcement of a contract, that’ counsel for plaintiff in error seem to have been led to the view and conclusion that it was an action of that character, or should have been so framed distinctively.

It appears to us, however, that it is an action for a quantum meruit and not for the specific enforcement of this contract, and that as an action for quantum meruit all reference to this contract might have been omitted. Some years ago the firm of which I was a member had a claim of this nature which we undertook to enforce, in the ease of Marx v. Loo, unreported, and in that case in the petition we made no reference whatever to a contract, although there was a contract of this character; we simply sued on a quantum meruit, and the petition was very brief indeed, and that petition passed muster both in the lower courts and in the Supreme Court. In the course of the investigation we undertook to prove the contract and the court of common pleas would not allow us to do so. The action of the court of common pleas in the premises was affirmed by thel circuit court, but both courts were- reversed by the Supreme Court in Marx v. Loo, 56 Ohio St. 731 [49 N. E. Rep. 1113] — that court holding that we had the right to prove the contract not .to obtain specific performance thereof, because the contract being-oral, and being in respect to land, could not be enforced on account of the statute of frauds, but that we had a right to prove the contract as a part of our showing that the services were not performed gratuitously ; the court holding that since the contract could not be enforced, and since the services were not performed gratuitously we had a right to sue and recover on a quantum meruit. The final hearing in the ease, including the petition, and all matters pertaining to it, will be found in final record No. 49 of this court, and the mandate of the Supreme Court will be found at page 309 of that record. We came back and retried the case along those lines, though we failed to recover for lack of evidence to satisfy the jury, and failed to have the matter reviewed again ,by the circuit court on account of some irregularity in preparing our bill of exceptions, and so the matter ended; but that particular point was considered and passed upon by the Supreme Court. So we think that the plaintiffs in this case had a right to sue upon a quantum meruit, and that the petition is sufficient along that line, and that all of this matter about the contract set forth in the petition, may be regarded as surplusage.

In Berry v. Collins, 6 Circ. Dec. 597 (9 R. 656), an action for services as a housekeeper, while this particular point does not appear to have been involved, is referred to by Judge King in his opinion at pages 599 and 600. There was in the case testimony that the defendant jJ-romised that he would give the plaintiff a farm as compensation for her services, and Judge King, in the opinion, says:

“In that connection, the court refused to allow the plaintiff to show the value of any farm, or of the farm which seemed to have been indicated by the declarations of Mr. Berry, in stating that he would give her a farm. Nothing was done by the court in that respect certainly, which could be prejudicial to the defendant. Circumstances could be easily imagined where that class of testimony would be entirely competent; but it is perhaps not necessary to pass upon that. I might suggest, however, that if there was testimony that went to the jury that could be said to tend to prove that he had engaged this woman under a promise to give her a farm for her services, such an arrangement or contract would be within the statute of frauds, and she could not enforce it and she might sue, as she did in this case, to recover the value of those services, and the value of the farm would be competent evidence to be given to the jury for the pimpose of showing exactly what he intended to pay her. That far it would be competent to show that her services were worth as much as that farm. A verdict would not be disturbed, based upon that kind of testimony.”

It will be observed that Judge King’s opinion goes a little further than the holding of the Supreme Court, in the case of Marx v. Loo, supra. It is intimated that the value of the farm might be the measure of damages. That was a question involved in Marx v. Loo, but all we asked in that case was leave to show that the services were not gratuitously performed.

It is urged in this case that the amount recoverable for the- services, if this contract were established by the evidence, would be the value of this house and lot — whereas the recovery here may be for a great deal more, that the house and lot may not be worth over a hundred dollars, while the recovery was of many times that amount. There may be„something in that; we are not prepared to say; we have not been called upon to examine into the question closely, but we think that in the condition of this record, the plaintiff in error is not in a position to take advantage of the absence of evidence as to the value of the house and lot, and we shall assume that the house and lot was worth as much as the amount of the recovery, for the reason that the plaintiffs below undertook to prove the value of the house and lot and this was objected to by the defendant below, and because of that objection the plaintiffs were not permitted to make this proof; and having stood in the way of making this proof, this court will not now assume, in order to find ground for reversal of this judgment, that the house and lot were not as valuable as the* amount of this recovery. What plaintiff so offered to proVe is found on page 97 of the record.

It is said that there is no allegation or proof of a demand of performance and a default. If this were an action for specific performance of the contract, perhaps something of that kind would be necessary; but nothing was necessary in this case other than what was done — presentation of the account to the administrator and its rejection by him.

It is said that the evidence discloses that this cause of action, if there was a cause of action, was in favor of the wife and not in favor of the husband: that it was not joint and that, therefore, there was a misjoinder; and that this results from the fact that the deceased lady promised in her lifetime from time to time to convey this property, or declared it was her purpose to convey it, to the wife. Looking into the record, we find her declared purpose stated both ways. She seems to have said on occasions that she meant it for “them,” referring to the husband and wife, and it appears that the support furnished to her and the services, were performed by both husband and wife. But aside from that, we think that question cannot be raised now by the plaintiff in, error. There was no demurrer upon the ground of misjoinder though perhaps nothing can be claimed from that because it is not disclosed by the petition that it was a cause of action in favor of one and not the other or of both. But passing that, there was no answer that the cause of action was not in favor of both, but that if it existed it was in favor of one; in other words, the plaintiff in error did not seek to take advantage of this misjoinder, if there was one, by either demurrer or answer, and the statute, Rev. Stat. 5063 (Lan. 8578) provides as follows:

“When any of the grounds of demurrer to the petition do not appear on its face, the objection may be taken by answer; and if no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objections that the- court has no jurisdiction of the subject of the action, and that the petition does not state facts sufficient to constitute a cause of action. ’ ’

That certainly is very plain. Had the plaintiff in error been desirous of taking advantage of claimed misjoinder, an answer should have been filed. That was not done but it is urged by the plaintiff in error that the fact of the misjoinder developed upon the trial of the case. That is no reason for not complying with the statute. If that fact then developed and plaintiff in error had not been'advised of it before, ho might then have taken leave to answer. The court would have undoubtedly given him leave to make that answer. We know of no authority for permitting one to pass the question without raising the issue by pleading, and then undertaking to raise it upon the evidence and show that the verdict should be set aside and judgment reversed because it is ■ disclosed' by the evidence that the cause of action was not in favor of all of the plaintiffs joined in the petition. If it ryere true that the cause of action was in favor of but one of the plaintiffs, if that plaintiff agreed to share the cause of action with another by an assignment, either as matter of gift or otherwise, or, not pursuing the method by formal assignment, had agreed to join another as plaintiff so as to give him a share of the recovery, it is not apparent that that would be a matter of prejudice to the defendant in the case,'though the defendant might have objected to such misjoinder had he cared to do so.

There were certain requests to charge on behalf of the defendant below which were not given. We think the court was justified in refusing to give these requests, because the propositions of law contained in them are not correct; but aside from that we would not reverse the judgment in this case even if we found that those instructions were correct, for the reason that it is not disclosed by the record affirmatively, as it must be to justify a reversal upon that ground, that the requests were submitted in writing. The record says, “Before any argument of counsel the defendant requested the court to charge the jury as follows, to wit:” and then follow these charges.

The case of the Toledo, F. & N. Ry. v. Gilbert, 24 O. C. C. 181, presented this same, question. The opinion is by Judge Hull and on page 186 he says:

“This record before us does not show that these instructions that were requested of the court were written instructions; it simply shows that the defendant submitted to the court certain requests which they asked to be given to the jury before argument, and shows that the court gave some instructions. It, does not show that the court read those that were given, and if there should be any inference at all it might be inferred that those were committed to writing or printed, by some one, but by whom it does not appear. And as to those that were refused, the record shows nothing, and for aught that appears in the record, the requests, as is often the ease after argument, may have been, oral requests of counsel, and not made in writing. To constitute error in the action of the court in this respect, the record must show affirmatively that the requests for instructions were written requests, which the statute clearly contemplates the court shall have opportunity to examine and deliberate upon, if it desires, before they are given to the jury or refused.”

That has been our construction of the statute, as applied by us in a large number of cases, though that is the only reported case I am able to lay my hands on at this time.

The paragraph of Rev. Stat. 5190 (Lan. 8699), applicable, reads:

“When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced. ’ ’

We think a right of recovery on a quantum meruit, of the amount that the jury returned in their verdict, was clearly established by the evidence, that the verdict was right, and that the judgment ought to stand, and it will be affirmed.

Haynes, J., concurs.


text:
    ERROR — INSTRUCTIONS—PRINCIPAL AND AGENT.
    [Lucas (6th) Circuit Court,
    September Term, 1906.]
    Haynes, Parker and Wildman, JJ.
    Detwiler Real Estate & Invest. Co. v. Edward V. E. Rausch.
    Time eoe Filing Bill or Exceptions Begins to Run when Right of Appeal OCCURS.
    Where a motion for a new trial includes the ground that the verdict was contrary to law, it includes error of the court in the charge to the jury, and a hill of exceptions prepared within forty days from the overruling of the motion is prepared in time.
    [For other cases in point, see 4 Cyc. Dig., “Error,” §§ 216-231, 1T08-1118.—
    Ed.]
    [Syllabus approved by the court.]
    ERROR to Lucas common pleas court.
    F. E. Calkins and L. W. Storey, for plaintiff in error..
    M. D. Merrick and J. C. Jones, for defendant in error'.
   PARKER, J.

In this case the action in the court below was brought by Edward V. E. Rausch against the Detwiler Real Estate and Investment' Company to recover commissions for selling real estate. The defendant filed an answer, in which,.after admitting that it was a corporation, and that its principal office was in the city of Toledo, Ohio, it denied each and every other allegation contained in the plaintiff’s petition. The case went to trial to a jury, and there was a finding in favor of the plaintiff for the full amount he claimed and judgment was entered upon the verdict.

The plaintiff in error claims that the main issue, i. e., as to whether it was liable at all upon this claim, was not submitted by the court to the jury.

It appears that there were two companies having their offices and places of business in the same room, or the same building in this city, one the plaintiff in error; the Detwiler Real Estate and Investment Company, the other the I. H. Detwiler Company; that the real estate and investment company is what is called a holding company, a company which holds the title to certain real estate, and that it owns considerable real estate in the city; that the I. H. Detwiler Company is a real estate brokerage company. I may say that besides these two companies there are quite a number of corporations that also have their offices in the same building and room. It does not appear that the stockholders of these two companies are identical. It appears that one George K. Det-wiler is the president of the I. H. Detwiler Company, the brokerage company, and that he is the vice president of the Detwiler Real Estate and Investment Company; that the plaintiff, Rausch, went to George K. Detwiler at this place of business and said to him — taking the statement of Mr. Rausch — that he had a prospective buyer for Superior street property, and asked him about the Superior street hotel property; the price of it, and if it was for sale. Detwiler said that it was for sale, that everything he had was for sale. Rausch told Detwiler that he had a buyer that he had been showing some property and he thought he could interest him in that property and maybe could make a deal for it, and asked him the dimensions of the property, etc. Now that is the way the negotiations opened up, which resulted in Mr. Rausch’s finding a purchaser for this property. It appears that in the talk with Mr. Detwiler there was no inquiry made and nothing said pointedly as to who held the legal title to this property, or as to whom Mr. Detwiler was representing in the transaction, whether himself, the I. H. Detwiler Company, or the Real Estate and Investment Company, or some other person or company; but Mr. Rausch appears to have supposed that ho was dealing with George K. Detwiler personally. Mr. Detwiler says, however, that he was, as a matter of fact, in the transaction representing the I. H. Detwiler Company, the real estate brokerage company; that all of the real estate owned by the Real Estate and Investment Company had been put into the hands of the I. IT. Detwiler Company for sale, and that he, as vice president of the Detwiler Real Estate and Investment Company, had no authority to sell property of that company, and had no authority to select agents for that company and authorize them to sell its property.

Now the property was sold, as I have said, and it appears that in the course of negotiations a Mr. Chalmers, who was an officer of and interested in the I. H. Detwiler Company, took an active part in the transaction, which would have some tendency to show that it was really the I. H. Detwiler Company that was moving in the business. When the deed came to be made for the property, it was signed by George K. Detwiler, as vice president of the I. H. Detwiler Real Estate and Investment Company, and it appears that he, in the absence of the president, was authorized to sign deeds. 'Of course, it was necessary to have a deed from the owner of the legal title to the purchaser. This deed was signed by him as vice president, and also by the secretary of the company, in pursuance of the authority contained in the by-laws of the company.

So it appears that the controversy was as to whether this was a transaction between the I. H. Detwiler Company, represented by George K. Detwiler and Mr. Rausch, or the Detwiler Real Estate and Investment Company, represented by George K. Detwiler and Sir. Rausch, and there was evidence tending to support both claims. If George K. Det-wiler was in fact representing the I. H. Detwiler Company and ■ the Detwiler Real Estate and Investment Company had done nothing in the premises whereby it was estopped from making the defense, there would be no liability upon the part of that company to Mr. Rausch for his commission. And it appears that if it was the I. H. Detwiler Company that was being represented, there would be one rule according to the customs in the city of computing the amount that would be due Mr. Rausch as 'commission; and if he was representing the owner, the Det-wiler Real Estate and Investment Company, he would be entitled to a commission under another rule; that in the first case he would be entitled to -share in the commission; in the second ease he would be entitled to all the commission customarily made upon sales of real estate.

Now it seems to us that during the trial of the case something must have occurred to give it a direction or aspect which caused the court to see very distinctly that there was a question as to the amount of commission Mr. Rausch might be entitled to in the one case or in the other, but caused him to lose sight of the fact that there was another question involved, i. e., whether the defendant in this ease was liable at all for any commission. If it was not a transaction for the plaintiff in error, if George K. Detwiler was not representing the plaintiff in error, then there would be no commission due it. When the court came to charge the jury he said to them: 1

“It is therefore evident that the only controversy between the parties to this action is as to the amount of compensation that should be awarded the plaintiff. It is conceded that the usual and customary commission for procuring purchasers of real estate in this city is 5 per cent on the first $1,000, and 2y2 per cent on the balance of the purchase price. The burden is upon the plaintiff to prove by a preponderance of the evidence the fair and reasonable value of the services rendered in procuring a purchaser for said real estate. If you find from a preponderance of the evidence that there was no agreement as to the amount of compensation to be allowed the plaintiff for procuring a purchaser for said real estate, then the plaintiff is entitled to recover the reasonable value of the services rendered by him in that behalf. If you .find that there was no agreement as to the amount of compensation to be paid the plaintiff, then for the purpose of determining the fair and reasonable value of the services.by him performed in procuring a purchaser for said real estate, you may take into consideration the amount of compensation usually and customarily paid in this city for such services, though that amount is not to be taken as conclusive. If, however, you find that there was an agreement as to the amount of compensation to be paid the plaintiff, that agreement is controlling. ’ ’'

Further along the court instructs the jury:

“Having determined-the compensation to which the plaintiff is entitled,' you will then compute thereon and add thereto interest at the rate of six per cent per annum from the sixteenth day of February, 1906, to the first day of this term of court, to wit, April 2, 1906, and return the same with your verdict.”

And then he hands to them a verdict which is prepared, which reads: “We find that there is due to the plaintiff from the defendant, the sum of $-submitting to them the single question as to the amount due to the plaintiff, saying to them in substance that th<? plaintiff is entitled to recover some amount — what amount you are to determine under the evidence.

We think that the charge was erroneous; that the main issue in the case was not submitted to the jury at all.

It is said by counsel for defendant in error that this question is not properly presented to this court, because the motion for a new trial does not specifically state as a ground that the court erred in the charge, and the bill of exceptions Avas not prepared and filed within forty days of the time that this error in the charge was committed, that the time was not protracted and carried forward, as it might have been, by filing á motion for a new trial on that ground, giving the court another opportunity to rule upon it, and thereby making the time for the bill of exceptions forty days from the time of the ruling’ upon the motion. It has been held that though it is not necessary that an objection and exception to the charge to the jury by the trial court be included in a motion for a new trial, when it is in fact included in such motion, the time in which the bill of exceptions may be filed begins to run from the overruling of the motion instead of from the time of the committing of the error in the charge; whereas the time will begin to run at the time of such error in case it is stated as a ground for a new trial in the motion therefor. The decisions bearing upon that will be found in the cases of Weaver v. Railway, 55 Ohio St. 491 [45 N. E. Rep. 717]; Cincinnati St. Ry. v. Wright, 54 Ohio St. 181 [43 N. E. Rep. 688; 32 L. R. A. 340].

The motion for a new trial in this case contained the following grounds:

(1) That the verdict given by the jury was contrary to the weight of the evidence; (2) That the verdict given by the jury was contrary to law; (3) That the court erred in overruling defendant’s motion to take the ease from the jury and direct a verdict for defendant and in excluding testimony by defendant and admitting testimony objected to by defendant.

In Weaver v. Railway, supra, Judge Bradbury, in discussing the statutes on the subject of new trials, bills of exceptions, etc., says, page 494:

4 ‘ The sixth subdivision of section 5305 [Lan. 8821], prescribes that a new trial may be had on the ground ‘that the verdict, report or decision is not sustained by sufficient evidence or is contrary to law’ * * * is broad and comprehensive. It would seem to include any error of law committed by the trial court in the course of a trial prejudicial to the losing party.”

We conclude that according to the views of the Supreme Court expressed by, Judge Bradbury, this motion for a new'trial containing the ground that the verdict was contrary to law includes the error of the court in its charge to the jury; and that, therefore, the bill of exceptions prepared within forty days from the overruling of that motion was prepared in due time.

On account of the errors in the charge above indicated, the judgment of the court of common pleas will be reversed.

Haynes and Wildman, JJ., concur.


author: PER CURIAM.

text:
    WILLS.
    [Hamilton (1st) Circuit Court,
    June 19, 1906.]
    Swing, Giffen and Smith, JJ.

      Theodore M. Harding, (Tr.) v. Sarah D. Marsh et al.
    Construction of Will Conveying Life Estate with Remainder in Estate Tail
    A will giving to testator’s wife a life estate in all of his property with remainder to his sisters and their heirs forever, and in case of the death of either of the sisters her share to be divided among the survivors, and at the termination of the life estate all of the income from the property for the next ten years to be held in trust for a building fund, passes an estate in fee tail to the sisters of the testator surviving him with the fee to their issue, and at the death of either of the sisters without issue, her-share in fee to the surviving sisters.
    £F0r other cases in point, see 7 Cyc. Dig., “Wills,” §§ 719-783. — Ed.]
    * ISyllabus approved by the court.]
    Appeal from Hamilton common pleas court.
    S. B. Hammel and William Worthington, for plaintiff.
    J. R. Sayler and Lawrence Maxwell, for defendants.
    This action was brought in the common pleas by Theodore Harding, trustee under the will of Theodore Marsh, to construe the will. The question at issue was as to whether Flora C. Knight, a granddaughter of-one of the sisters of the testator, had any interest in the estate, her grandmother being a sister of the testator, and dying subsequent to his death, but prior to the death of his widow to whom a life estate was given. This sister left a son, who died testate bequeathing his property to Flora C. Knight, his only child. The' fourth and fifth items of the will are as folloivs:
    “Fourth. It is my will that at the death of my said wife, Rachel Marsh, and at the termination of the life estate herein created, all of my said estate shall become the property and vest in my sisters, Margaret A. Knight and Sarah D. Marsh, of Hartwell, Hamilton county, Ohio, and Mary C. Harding, now residing in Canon City, Colorado, and the heirs of their bodies forever: And in the event of the death of any of my sisters, without issue, the share to which said sister would be entitled shall be divided or distributed among my remaining sisters, or in the death of both to my remaining sister, or in the death of all to the heir or heirs of such sister or sisters as his or their mother would have taken if alive, subject however, to the conditions and provisions of the trust created, namely:
    ‘ ‘ That immediately after the decease of my said wife Rachel Marsh, and the termination of said life estate as herein provided, for a period of ten years, all the income arising from my estate, real or personal, of whatever nature and description shall be collected by my nephew, Theodore M. Harding, now residing in Canon City, Colorado, whom I appoint as a special trustee for that purpose and the trust herein created — and shall be expended and distributed by him as follows:
    *‘ (a) That one-half of all such gross income arising from my estate for a period of ten years after the death of my said wife, Rachel Marsh, shall be held by the said Theodore M. Harding, or his successor, as a fund in trust for the erection and construction of a good substantial business block on the southeast corner of Sixth street and Central avenue in the city of Cincinnati, 0., to be known and designated as the ‘Marsh Block,’ in commemoration of my father, John Marsh, and said trustee, or his successor, is hereby authorized and directed to superintend the erection and construction of said building or block; and in order to increase the trust fund- for that purpose the said trustee, or his successor, is hereby directed to invest such portion of my income from time to time as his judgment may direct in securities of the United States, the state of Ohio, or the city of Cincinnati.
    “(b) That my said trustee, or his successor, is hereby authorized and directed after the payment of all taxes, assessments and repairs from one-half of the gross income arising from my estate for said period of ten years after the death of my wife, Rachel Marsh, and the termination of the life estate herein created, to pay the residue of such one-half of the gross income for the period aforesaid in semiannual payments, to my said sisters, Margaret A. Knight, Sarah D. Marsh and Mary C. Harding, or their legal heirs according to the former provision of this section as to the distribution of my estate, and that my said trustee, or his successor, account annually to the probate court for Hamilton county, Ohio, for all moneys so collected, invested and expended by him as trustee aforesaid and that his compensation in the premises be fixed' by said court.
    “Fifth. It is my will that at the expiration of the said period of ten years after the death of my wife Rachel Marsh, the said trustee, or his successor, shall make distribution of all of the personal property belonging to -my estate amon'g my said sisters, Margaret A. Knight, Sarah D. Marsh and Mary C. Harding, or their legal representatives as heretofore provided in this will as to distribution of my estate, and that partition of all of my real estate be had as soon thereafter as practicable, under the statutes of Ohio, among the said Margaret A. Knight, Sarah D. Marsh and Mary C. Harding, or their legal heirs, according to their respective interests.”

       Affirmed by the Supreme Court, without report, Knight v. Harding, 76 Ohio St. 000; 52 Bull. 261.

   PER CURIAM.

By the fourth item of the will of Theodore Marsh we think he disposes of his estate iii the following manner:

• All of his estate went to his sisters as an estate in fee tail; upon the death of either leaving issue, said issue came into the enjoyment of said estate in fee simple. Upon the death of either sister leaving no issue, such share passed in fee simple to the surviving sister or sisters in fee simple.

Upon the death of Margaret A. Knight, her one-third share became an estate in fee simple in her only issue, Benjamin Knight, and upon his death his share would vest in his daughter, Flora Cornelia Knight, if he had died intestate; but Benjamin Knight having died testate his estate passed by his will. Upon the death of Sarah D. Marsh, her share, which she held in fee tail, vested under this item in her sister, Mary C. Harding, in fee simple.

Under the fifth item of his will his personal property is to be distributed in the same manner as his real estate is given under the fourth item.

A decree should be entered in this court along the same lines as that entered in the court of common pleas.


text:
    PRINCIPAL AND AGENT — SPECIFIC PERFORMANCE.
    [Knox (5th) Circuit Court,
    October 12, 1906.]
    Donahue, McCarty and Taggart, JJ.
    A. Schippicasse v. Pauline Church et al.
    1. Authority of Agent, Delivering Contract to Convey, to Accept -Payment of Price.
    Where an owner of real estate gives to his agent a written agreement to sell, to he delivered by him to a proposed purchaser, the law will imply that the agent was empowered to accept the purchase money from the purchaser.
    [For other cases in point, see 7 Cyc. Dig., “Principal and Agent,” §§ 204-211. — Ed.]
    2. Enforcibility of Contract for Sale of Realty.
    A decree for specific performance will not be denied to a purchaser because the seller is possessed of sufficient property to respond in the event that a judgment for damages should he recovered against him.
    [For other cases in point, see 7 Cyc. Dig., “Specific Performance,” §§ 7-15. — Ed.]
    ERROR to Knox common pleas court.
    W. H. Thompson and F. V. Owen, for plaintiff in error.
    J. D. & D. F. Ewing, for defendants in error.
   PER CURIAM.

' This is a suit to enforce the specific performance of a written contract entered into by and between the plaintiff herein and the defen il-ants herein. The facts in brief are, that the defendants herein signed a written contract agreeing to convey to the plaintiff a certain lot situated in the city of Mt. Vernon, for a consideration price of $3,500. A cheek was executed by the plaintiff, which was delivered to the agent of the defendants. The testimony is somewhat conflicting whether this check was executed and delivered to this agent before the signing of the agreement, or after the same was signed, but as we view this case it is somewhat immaterial. -At the time for the payment of the $3,000 mentioned in the contract, the plaintiff produced that sum of money and tendered the same to the defendants, but, taking the testimony of the attorney for the defendants as being the correct statement of what transpired, it appears that he, as such attorney, informed the plaintiff that no deed would be executed for the property, and that he had directed the defendants not to talk about the transaction. Thereupon the plaintiff, through his attorney, tendered the remaining consideration in money, $3,000.

We think that the plaintiff herein is entitled to a decree.

First. If the defendants give to their agents this written contract to be delivered to the plaintiff, we think that they thereby impliedly empowered him to accept the cash payment specified therein, and he could accept the check, which the proof shows was by him presented and the cash obtained thereon; and we think that the rule of the ease is laid down clearly in Keys v. Follett, 41 Ohio St. 535, as follows:

“An attorney who receives a promissory note from the agent of the owner for collection, may, in good faith, deliver the proceeds of the collection to such agent, or pursuant to his direction. ’ ’

If, on the other hand, the check was, as claimed by the agent, exhibited to them before signing the contract, and they thereupon signed the contract with the knowledge that their agent had the check for $500, and they then delivered the contract so signed to him to be delivered to the plaintiff herein, they are concluded by this contract and their -conduct, and cannot now be heard to say that he had no authority to accept said check.

Second. We think there is some corroborative testimony also in their statement to other parties at or about this time, that they had sold their property, and it does appear to us that their refusal to complete the contract was occasioned by some difficulty which must have arisen subsequently to the signing and delivery of this contract, and not because of any failure of the plaintiff to make the cash payment.. But it is contended that the tender was not sufficient on November 1, of the $3,000. As we find in this ease, the plaintiff and his counsel were informed that the defendants would not make a deed, and that the plaintiff would not get a deed for the property. But, notwithstanding this, we think that the plaintiff fairly and in the performance of his contract did exhibit, offer and tender to the defendant the full sum of $3,000, in payment of the said $3,000, and that the defendants and their counsel refused to assist in counting the same.

But it is urged that the defendants are possessed of sufficient property that a judgment for any damages that may have arisen by reason of the breach of this contract is recoverable against them at law, and our attention is called to some authorities in which it is claimed that specific performance of a contract will not be granted in case there is a plain, adequate and complete remedy at law. We call attention, however, of counsel to 3 Page, Contracts See. 627, which we think states the correct rule:

“ [Contracts for Conveyance of Realty.] Every contract of realty is in a way unique. No amount of money will enable one to acquire a given tract for a private purpose without the consent of the owner thereof. It follows that a contract to convey realty is one, the breach of which cannot be compensated for adequately by money damages, and specific performance of such contracts is, therefore, regularly given by equity, if. the other elements of the contract are such as to make this remedy proper.5 ’

This rule is so generally recognized by courts of equity that they unifoimly grant specific performance to the seller of real property against the vendee on the theory that where the vendee has the right to compel specific performance the same right should be accorded to the vendor, notwithstanding his relief is only for so many dollars and cents, and unless it was for the reason that courts of 'equity always place parties to a contract upon the same footing, there could possibly be no theory or reason advanced why the vendor of property should be entitled to specific’ release in any case.

Therefore, it is the judgment of this court that a decree may be entered herein in favor of the plaintiff decreeing specific performance, and in the event of the defendants’ failing to execute a deed within ten days, that the decree of this court may stand as and for a conveyance of said property, and a writ of possession is awarded. Judgment is also entered for costs of suit in favor of the plaintiff and against the defendants. Motion for new trial is overruled and exceptions. Ten days for finding of fact, statutory time for bill of exceptions and cause remanded for execution.