author: Hunsicker, J.

text:
    Wioland, d. b. a. Eddy Floors, Appellant, v. Mayflower Motors, Inc., Appellee.
    (No. 3859
    — Decided April 18, 1947.)

      Mr. Vernon Weygandt and Mr. Wm. D. Held, for the motions.

      Messrs. Bailey & Bailey, contra.

   Hunsicker, J.

This hearing was had on a motion by appellee to dismiss an appeal on questions of law and fact from an order of the Common Pleas Court of Summit county, dissolving a temporary injunction.

The appellant commenced his action against appellee for specific performance of an alleged contract of purchase of a 1947 Studebaker one-half-ton truck and secured a temporary restraining order enjoining appellee from disposing of such truck during the pendency of the cause. On motion of the appellee in the lower court, this temporary injunction was dissolved, and it is from such order that this appeal was taken.

Appellee has also filed a motion to vacate the order of this court, whereby this court suspended “the judgment of the said Court of Common Pleas vacating the injunction heretofore granted in this cause,” pending this appeal. ■

Appellee claims “that said appeal is not taken from the final order granted by the Court of Common Pleas • of Summit county, Ohio.”

The question before this court is whether an order of the Common Pleas Court dissolving a temporary restraining order, in an action wherein the ultimate relief sought is specific performance of a contract to purchase personal property, is a final ordér 'from which an appeal may be prosecuted before final judgment in the court below.

Under Section 8448, General Code, a part of the Ohio Sales Act, there is definite statutory authority to maintain an action to compel specific performance of a contract to purchase personal property.

We therefore consider the question whether the order made is a final order within the terms of Section 12223-2, General Code;

The controlling features of this section have, so far as the instant case is concerned, remained almost identical from the earliest days of code pleading and practice. The first such statute was Section 512 of the Code of Civil Procedure (51 Ohio Laws, 145), effective July 1, 1853, which section became Section 6707, Revised Statutes, then Section 12258, General Code, and then Section 12223-2, effective January 1, 1936, amended to its present form, effective August 23, 1937.

Section 12223-2, General Code, provides that a final order is one (1) affecting a substantial right in an action, when in effect it determines the action and prevents a judgment, or (2) affecting a substantial •right, made in a special proceeding, or (3) upon a summary application in an action after judgment, or (4) vacating or setting aside a general verdict of a jury and ordering a new trial.

We need not be concerned with the first, third or fourth items set out above, for they can have no application in the instant case.. ,

Passing, then, to item two, is this a special proceeding within the terms of Section 12223-2?

Section 11237, General Code, provides:

“An action is an ordinary proceeding in a court •of justice, involving process, pleadings, and ending in a judgment or decree, by which a party prosecutes another for the redress of a legal wrong, enforcement •of a legal right, or the punishment of a public offense.”

This definition is that contained in the case .of Missionary Society of M. E. Church v. Ely, 56 Ohio St., 405, 407, 47 N. E., 537, wherein the court said:

“Our code does not, as does the code of New York, specify that every remedy which is not an action is .a special proceeding, nor does our statutes give any definition of an action or a special proceeding. But we suppose that any ordinary proceedings in a court -of justice, by which a party prosecutes another for the enforcement or protection of a right, the redress •or prevention of a wrong, or the punishment of a public offense, involving the process and pleadings, and ending in a judgment, is an action, while every pro•ceeding other than an action, where a remedy is sought by an original application to a court for a judgment, •or an order, is a special proceeding.”

Our Code does, however, contain, inter alia, two ■divisions under Part Third, Remedial, Title IV, Procedure in Common Pleas Court, as follows: Division VTI, Special Actions, Sections 11901 to 12102-16, inclusive, and Division IX, Special Proceedings, Sections 12148-1 to 12222, inclusive. If these designations in-the Code are to be considered as the only special proceedings, then our search need go no further. However,

the courts of this state have held that many other-actions are special proceedings, as did the case of William Watson & Co. v. Sullivan, 5 Ohio St., 42, decided in 1855, shortly after the new form of code-pleading was adopted, which case held:

“An order of the Court of Common Pleas, discharging an attachment against a resident as to the whole of the property attached, is an order affecting a substantial right made in a special proceeding, which may be reversed, pending the action in which the order of attachment was made.”

„ The court in that case said, at page 44:

“The Legislature seems to regard all proceedings not theretofore obtained by suit or action, as a special proceeding or special statutory remedy; and it would seem to follow, that a provision in the Code providing, a proceeding not by action would be a special proceeding. ’ ’

The court, continuing, discussed the nature of the rights and duties under an attachment separate from the original action which gives rise to it, and said,, at page 45:

“There may be a just cause of action, and no-grounds for the order of attachment. They are separate proceedings, and, in the opinion of this court,, the attachment is a special proceeding, which may be reversed before the determination of the action.”

The similarity between attachment and injunction is at once apparent in reading the General Code sections on injunction — Section 11875 et seq. — and hence we are of the opinion that the action taken in the instant case is a special proceeding, within the terms of Section 12223-2.

We next pass to the question, Is this a final order affecting a substantial right of the plaintiff in the instant case?

It should be borne in mind that the ultimate relief sought is specific performance of á contract to purchase personal property.

The earliest case in Ohio directly in point which we have found is Burke v. Railway Co., 45 Ohio St., 631, 17 N. E., 557, the per curiam opinión of which, consisting of one paragraph, is:

“An order of the Court of Common Pleas overruling a motion to dissolve an injunction is an order affecting a substantial right made in a special proceeding which may be reviewed on error by the Circuit Court. ”

In the case of Chicago, St. L. & P. Rd. Co. v. City of Hamilton, 2 C. D., 259, 3 C. C., 455, decided in 1888, the court said:

“1. An order of the Court of, Common Pleas, dissolving a temporary injunction, is reviewable on error before the final disposition of the case in said court.”

And at page 260, it was said:

“It is an order affecting a substantial .right, made in a special proceeding, as much as is an order overruling a motion to dissolve such temporary injunction. It affects the interest of the other party, bjit that does not alter the principle.”

That case was originally brought to enjoin' the appropriation of land.

In Ries v. Bank, 5 C. D., 20, 10 C. C., 656, decided in 1895, the court said:''

“It has been settled by the Supreme Court, that error may be prosecuted to an order refusing to dissolve a temporary injunction.” -

That action involved a supplemental petition by an attaching creditor to enjoin the assignee of real property from selling such property. See, also, Snell v. Cincinnati St. Ry. Co., 9 C. D., 264, 16 C. C., 633.

In the case of Robert Mitchell Furniture Co. v. C., C., C. & St. L. Ry. Co., 9 O. D. (N. P.), 674, 7 N. P., 640, the court said, at page 676:

“The first question arose on a motion by the defendants in error to- dismiss .these proceedings for that the general term had no power to review on error the order of the court at special term vacating temporary injunction; and reliance for this contention was had upon the case of Cincinnati College v. Nesmith, 1 C. S. C. R., 255, wherein it was held that an order dissolving a restraining order was not a final order or judgment to which, under Section 512 of the Code, now Section 6707, Revised Statutes, a writ of error would lie. The reason given is that the order sought to he reversed, to be a final order, must be one which in effect determines the action and prevents a judgment. But this, we think, was giving a too restricted meaning to the definition of a final order as provided in Section 6707, Revised Statutes. However this may be, our Supreme Court in Burke v. Railway Co., 45 Ohio St., 631, has held that an order overruling a motion to dissolve an injunction is an order affecting a substantial right made in a special proceeding, which may be reviewed on error. We think the converse of that proposition must be true, and hence that an order granting a motion, to dissolve an injunction must be an order affecting substantial right made in a special proceeding, and consequently reviewable on error.”

That view of the law is sustained in the case of Black v. Poling, 45 Ohio Law Abs., 298, 69 N. E. (2d), 372, the syllabus of which reads:

“The overruling of a motion of defendant to dismiss the temporary injunction previously granted to plaintiff (on the authority of Burke v. Railway Co., 45 Ohio St., 631), is an order affecting a substantial right made in a special proceeding and is appealable.”

The court in the Blade case questioned its power to so hold, but did so on the authority of the case of Burke v. Railway Co., supra.

In the two last pronouncements of the Supreme court, on the subject, vis., May Co. v. Bailey Co., 81 Ohio St., 471, 91 N. E., 183, and Jones, Treas., v. First National Bank of Bellaire, 123 Ohio St., 642, 176 N. E., 567, the ultimate relief was injunction and not specific performance or some other remedy. With the action taken in those cases there can be no disagreement, for to permit an appeal where there is but a single issue would be to divide the case, leaving part in the Common Pleas Court and part in the Court of Appeals. Where .the questions involved in the temporary order are no different from those involved in the main issue, and the action of the trial court is not ancillary to the exercise of its jurisdiction on any other subject, such action cannot be a final order as defined by Section 12223-2, General Code.

Comment on one other case sustaining our position should be made, and that is the case of Hersch v. Home Savings & Loan Co., 59 Ohio App., 145, 17 N. E. (2d), 377, which is a well-considered review of all authorities up to the time of the decision in that case . The original action was commenced to secure the specific performance of real property, but the analogy and reasoning are controlling. The court there held:

“An order dissolving a temporary restraining order, issued to restrain the defendants from evicting the plaintiff from premises in an action wherein the ultimate relief sought is the specific performance of a contract to convey the premises, is a final order from which an appeal may be prosecuted.”

The motion of the appellee to dismiss is overruled.

Coming now to the motion to vacate the order continuing the injunction granted by the Common Pleas ■Court, we have examined the transcript of the testimony taken at the hearing in the Common Pleas Court upon the motion to dissolve the injunction, upon which evidence the motion to vacate was here submitted, and from that evidence we are of the opinion that the plaintiff rescinded his agreement to purchase. Such motion is, therefore, sustained.

Judgment accordingly.

Doyle, P. J., and Stevens, J., concur.


source: Caselaw Access Project

author: Sherick, P. J.

license: Public Domain

text:
    Refrigeration & Air Conditioning Institute, Appellant, v. Rine, Appellee.
    (No. 462
    — Decided November 7, 1946.)

      Mr. Robert Jj. Carr, for appellant.

      Mr. Greed J. Lester, for appellee.
   Sherick, P. J.

-This cause was first tried before a justice of the peace and plaintiff secured a judgment for $154. Defendant appealed to the Court of Common Pleas wherein the cause was retried without the intervention of a jury, resulting in a judgment for plaintiff for $5. From that judgment plaintiff appeals to this court on questions of law. >

The single question presented concerns the proper measure of damages recoverable by the seller upon the buyer’s breach of a contract partially performed. Are the damages measured by the contract price or the actual value of the services rendered and goods furnished, plus anticipated profits if they can be established with sufficient certainty?

Plaintiff’s petition alleges, in substance, a written contract for the furnishing of a correspondence course in refrigeration and air conditioning, the total cost of which was $172. Plaintiff -pleads part performance and its willingness to complete its contractual obligations. It avers that defendant breached the agreement after receiving some 39 lessons and refused to continue the course of study. It recites payment of $23. It prays for judgment in the sum of $149, the- balance of the contract price.

The answer denies generally and sets forth two affirmative defenses, i. e., failure of consideration and fraud in the inducement.

The reply is a general denial.

The Court of Common Pleas found that plaintiff had proved its contract; that defendant 'had failed to establish the truth of his two defenses; that plaintiff was entitled to recover; and that, inasmuch as plaintiff had failed to prove any actual damages, it could recover ño more than nominal damages, to wit, $5. Judgment was entered accordingly. Such, findings are definitely substantiated by the record.

The contract provides, among other things, that, upon successful completion of the course of study and full payment of tuition, plaintiff will furnish an additional two weeks of intensive shop' and laboratory training at its institute in Chicago; and that “here the student will work under actual shop conditions on standard equipment furnished by the industry, unde r the direction of competent engineers and instructors.” Plaintiff further covenanted to furnish defendant, Rine, with bus transportation to and from Chicago. It promised him assistance in procuring employment in the field covered by the course of study. It further appears from correspondence in evidence that defendant had been given a student number, RA 11316. Of those matters we shall hereinafter have something further to say.

The measure of damages" in this type of cases is an open question in Ohio. We therefore turn to other jurisdictions for enlightenment. From the case of International Correspondence School, Inc., v. Crabtree, 162 Tenn., 70, 34 S. W. (2d), 447, 78 A. L. R., 330, and the annotation thereto in A. L. R., it appears that three schools of thought have developed. In Massachusetts the rule is that the school may recover the full contract price. In Nebraska it is held that the school can recover the full contract price, unless the student can lessen his liability by showing savings in the school’s expenses, brought about by its not having to perform the contract on its part. The third rule, adhered to in Michigan, is that a school can recover only for actual loss, the burden is upon the school to make proof thereof and failure to do so limits it to recovery of nothing more than nominal damages. We refrain from citation of authorities. They may be procured from the case and annotation hereinbefore referred to.

What ought to be the Ohio rule? To determine this question, we must examine this state’s theory of recovery of damages in breach of contract eases where the contract has been partially performed. It is generally accepted that he who seeks damages for a breach of contract bears the burden of proof, unless a statute otherwise dictates or knowledge is peculiarly within the possession of the other contracting party who must, in such case, bear the burden of producing it. Ohio has step by stqp veered to the rule that only actual damages are recoverable, unless the law permits a recovery of punitive damages. In practically all kinds of contract violations, Ohio has sought to compensate the injured party, not to reward him. Our courts have frowned upon the award of punitive damages, unless they are provided for by law. The courts have also forbidden juries to speculate, and have instructed them to award only such damages as will make the aggrieved party whole, that is, save him from pecuniary loss.

The plaintiff in the present action is selling service as well as the lessons which it furnishes and later grades. It goes even further than this and agrees that, when the course is completed and paid for, plaintiff will advance money for bus transportation and will give the student two weeks of shop instruction in a standard, equipped shop under experienced instructors. Without doubt those items are figured in arriving at the total contract price. They represent an actual anticipated cash outlay by the institute. The breach saved such contemplated expenditures. The contract figure is indivisible, and, unless plaintiff discloses the cost thereof, application of the Massachusetts rule, will' compensate it for a loss which it has not and never will sustain.

The defendant’s student number, 11316, reasonably suggests that the institute has or has had a goodly number of students taking its refrigeration and air conditioning course. At the contract price this would represent a tidy sum of nearby two million dollars, if tbe full tuition sum were recoverable in every case. It is common knowledge that many contract to take correspondence school courses and that relatively few complete them. The record shows that three or four students, who were all the students contracting with plaintiff at the time in the Mt. Vernon area, have discontinued study. After course expenditures, • there would remain quite an appreciable sum in each student’s case. Again, it is a matter of common knowledge that the -original composition of correspondence school lessons and their printing in bulk are not matters of great expense; and when postage, correction of lessons, secretarial service, stationery and school administration costs are proportioned and added, the total cannot represent any considerable portion of the tuition fee of an individual student. Such facts and figures are within the exclusive knowledge of the school. Why ought it not be required to produce them?

In 13 Ohio Jurisprudence, 93, Section 27, it is stated, as to damages for breach of a contract partially performed :

“ * » * ^he rule now established in Ohio is that, upon the breach of a contract to perform services, furnish goods, etc., by the failure of one party thereto to do that which he is bound to do, the other party, upon electing to treat the contract as canceled and to sue for the value of the services already performed, goods furnished, and the like, is not bound by the contract price, but may recover as damages the reasonable value of the services rendered or goods furnished, regardless of the fact that the reasonable value is greater than the contract price, although it is still competent for the party sued to show that in the circumstances of the particular case the plaintiff would necessarily have lost more by performing the contract at the agreed price than by not performing.”

Wellston Coal Co. v. Franklin Paper Co., 57 Ohio St., 182, 48 N. E., 888, and Cleveland Co. v. Standard Amusement Co., 103 Ohio St., 382, 133 N. E., 615, are cited as authority for that statement. Those cases in part support the text. The holding in each of those cases really goes no further than to say that the injured party may elect to sue for damages or may disregard the contract and sue for the reasonable value of what he has performed. The injured party in .each case elected to pursue the quantum valebant course. In neither case was the court called upon- to state what elements of damage were recoverable had the plaintiff pursued the first course.

In Cleveland Co. v. Standard Amusement Co., supra, the statement on page 387, however, is of more than passing interest in that the court referred to and seemed to approve the case of United Press Assn. v. National Newspaper Assn., 237 F., 547, and cited it as authority for the statement that the injured party “may treat the repudiation as putting an end to the contract for all purposes of performance and sue to recover as far as he has performed and for the profits he would have realized if he had not been prevented from performing.”

That theory of damages recoverable does not comport with plaintiff’s insistence that judgment should have been entered for the balance of the contract price.

In Advertisers Exchange, Inc., v. Bleich, 40 Ohio Law Abs., 212, 215, 57 N. E. (2d), 91, wherein plaintiff sought to recover “the entire balance due on the contract rather than upon the theory of the established law * * * limiting the recovery to damages,” plaintiff was limited to recovery of damages.

Keeping in mind that it is the evident purpose of Ohio courts, in the absence of statutes permitting, or situations demanding, punitive damages, to permit recovery of actual damages only, which is to say such damages as will actually compensate the aggrieved party but not reward him in cases of breached contracts partially performed, we shall attempt to enumerate and set forth what to this court seems in accord with the purpose of Ohio courts.

The first item is the aggrieved party’s outlay or expenditure towards performance. This item is divisible into three parts, first, the reasonable value of the services rendered and goods furnished to the time of the defendant’s breach, second, any definite expenditure theretofore made and existing, if any there be, towards the further performance of the contract (neither of these elements of damage are governed or bound by the contract price), and, third, any expenditure made and loss sustained by the aggrieved party in readying himself for performance of the contract, if the same was within contemplation of the contracting parties when the contract was entered into. This third element-of the first item could hardly have entered into the computation of plaintiff’s actual damages in this case.

The second item of actual damages is loss of profit, where profit was contemplated. If the contract enterprise was without profit or its completion by plaintiff would result in a loss to him, then such element of damage must of necessity disappear. We recognize that the rule of -the past was repugnant to allowance of damages for loss of profits, but such is now the case. We believe it to be now well settled that loss of profits may be an element of damages in breaches of partly performed contracts, where such profits are not too remote, are not .speculative and can be shown with fair accuracy, definiteness and certainty.

Who is best able to evidence these elements of-damages? Surely, not an applicant for a correspondence school course. Such knowledge reposes almost exclusively in the administrative office of the school. It ought, therefore, to shoulder the burden of producing that evidence, which is in accordance with the Ohio rule. And where the school fails to make such proof, after proving its contract and defendant’s breach coupled with the presumption of sustained damage, the school is entitled to nominal damages only. Analyzing the Massachusetts rule, as announced in International Textbook Co. v. Martin, 221 Mass., 1, 108 N. E., 469, we find it, predicated on independent covenants aiid a father’s guaranty. On that theory of contract price, plaintiff grounds its claims. The answer is that such measurement of damages is not in accord with Ohio’s compensatory-damage purpose. To hold that the measure of damages is the balance of the contract price is to say that plaintiff may recover not only all its expenditures and expected profit but in addition all future expenditures that will not now be made but which would have had to be made if the contract had been entirely performed. These include bus fare, two weeks vocational training and assistance in procuring a position in industry for defendant. This theory not only compensates plaintiff, but rewards the institute by awarding it compensation .for expenditures embraced within the contract price, which ..will never be made.

Nothing has been or will be said concerning special damages or a plaintiff’s duty to mitigate his damages, as those issues are not in the present action. However, it is proper to point out that if a defendant would lessen his responsibility the burden is upon him to establish facts’ that reasonably tend to show a mitigation of plaintiff’s damages.

The conclusion of this cotfrt is that the trial court’s judgment must be and is affirmed.

Judgment affirmed.

Putnam and Montgomery, JJ., concur.


author: By the Court.

text:
    Schueler, Appellee, v. Lynam, Appellant.

      (No. 1915
    — Decided May 6, 1947.)

      Mr. Floyd Koogler and Mr.. Howard Durst, for appellee.

      Miss Gertrude Bucher, for appellant.
   By the Court.

This is an appeal on questions of law and fact from a judgment and decree of the Common Pleas Court of Montgomery county, Ohio, cancelling a deed and ordering the title to certain real estate quieted as against the defendant, appellant herein.

In her petition the plaintiff, appellee herein, alleges that she'is the sole devisee ánd beneficiary under the will of Elnora Lynam, deceased, which will was admitted to probate by the Probate Court of Montgomery county, Ohio; that Elnora Lynam died on April 15, 1944, owning lots numbered 24561, 24562, 24563 and 24564 on the plat of the city of Dayton, Ohio; and" that the defendant, on May 18, 1944, recorded an instrument which purported to be a deed executed by Elnora Lynam to the defendant for such property", which instrument the plaintiff claims was not a good and valid deed, and prays that the deed be cancelled and that the title to the property be quieted.

The defendant, in his answer, alleges that the deed in question was executed by Elnora Lynam and her husband, William Lynam, on March 4, 1939, and delivered to him on March 10, 1939, and denies all the material allegations contained in the petition.

By stipulation, it was agreed that this case be submitted to this court on the transcript of the testimony taken in the trial court, together with some additional testimony taken before a special master commissioner appointed by this court. A transcript of the additional testimony taken has been filed.

The sole question for the court to determine is whether the Instrument which purports to be a deed, executed on March 4,1939, is valid. On the issues made the plaintiff carries the burden of proof. In an equitable proceeding, where the plaintiff prays for the cancellation of a deed filed of record and that the title to real estate be quieted, the burden of proof must be sustained by clear and convincing evidence. Ford v. Osborne, 45 Ohio St., 1, 12 N. E., 526; Atlantic Refining Co. v. Wagner, 24 C. C. (N. S.), 275, 34 C. D., 587; Kerins v. Maumee Valley Mtg. Co., 7 Ohio Law Abs., 43; 33 Ohio Jurisprudence, 939, Section 135.

The record shows that the court below permitted counsel to have a wide latitude in the examination of witnesses. Under the technical rules of evidence some of the testimony would have been incompetent. Much testimony was introduced for the sole purpose of impeachment, some of which was proper and some being improper will be disregarded. In 42 Ohio Jurisprudence, 387, Section 378, it is stated that:

“In Ohio, it is held that the proof to impeach a witness’s credit or truth and veracity is limited to his reputation in that respect, and that it is not competent to inquire of the general 'reputation of the-witness, or to prove his turpitude in any respect for-that purpose. The rule which permits an attack upon the credibility of a witness in a civil case is confined' to proving a reputation of want of veracity and does-not allow proof involving the general moral character of the witness.”

The evidence shows that prior to June 1, 1938, the-record title to lots numbered.2456Q, 24561, 24562, 24563- and 24564 stood in the name of William I. Lynam. On that date he deeded ^he lots to Elnora Sóuthwick. Within the month William I. Lynam and Elnora Southwick were married. The deed was not filed for record until July 13, 1940. The instrument which purports to be-a deed from Elnora Lynam to David Lynam for those-five lots, the validity of which deed is questioned, was-dated March 4, 1939, but not filed for record until May 18, 1944, which was after the death of William I. Lynam on May 8, 1942, and also after the death of Elnora Lynam, which occurred on April 15, 1944.. The will of Elnora Lynam, executed on February 7, 1944, was duly probated in the Probate Court of Montgomery county, Ohio, on May 6,. 1944. The plaintiff, Matilda Schueler, is named as sole beneficiary and executrix. Item 2 of the will, which is the only dispositive clause, is as follows:

“I give, devise and bequeath all of my property, both personal and real estate to my beloved aunt, Matilda Schueler, of Dayton, Ohio ;• — The residue of all my estate that I may die seized of.”'

The record shows' that lot numbered 24560 had been deeded to William and Eleanor Wentz by Elnora Lynam and William Lynam, under date of August 29, 1941. On the date the^eed was executed William and .Eleanor Wentz executed a purchase money mortgage in favor of Elnora Lynam for $1,200. The deed and mort-.gage were both filed for record on September 4, 1941. Thus, the title to lot numbered 24560 is not involved in this controversy.

After her appointment as executrix, Matilda Schueler promptly effected an estate appraisal of lots numbered 24561, 24562, 24563 and 24564 and immediately sought a purchaser for the real estate. Within • a few days after the appraisal had been made Drewey H. Wysong who, up to that time had acted as attorney for Matilda Schueler in the settlement of the estate, •called her by telephone and told her he had a purchaser for the property. Matilda Schueler informed him that her niece had assisted her in procuring a purchaser, and that she had already sold the property. Whereupon, Wysong told her: “Since you don’t want to listen to my suggestions you get another attorney, maybe your niece can represent you.” Up until that •date the relationship- between Schueler and Wysong had been'very friendly; he had represented her in other legal matters. With that conversation, however, Wysong terminated his legal services and Schueler immediately obtained other legal counsel.

It was at that time the whole matter took a sudden turn. A series of conversations and circumstances took place, about which much testimony was taken, which is contradictory in character. To attempt to reconcile the testimony would be impossible and to- attempt to analyze all the testimony would serve no useful purpose and would unduly lengthen this opinion. We recite only such parts of the testimony which have a direct bearing on the issues presented, and which may disclose the underlying motive or purpose of those persons participating in certain transactions and why they pursued a certain line of conduct.

Within a few days after the conversation took place between Matilda Schueler and Wysong, the defendant, David Lynam, according to his own testimony, called on Schueler and asked her whether she had found a deed to him for the property, and, upon being told that she had found no such .deed, he called Wysong and asked about the deed. Wysong at first disclaimed any knowledge of the deed. Later David Lynam called at Wysong’s office and found a person by the name of Kennedy reading the deed in question. Wysong gave him the deed and he, thereupon, on May 18, 1944, filed the deed for record. David Lynam claims Elnora Lynam and William Lynam, who sighed a release of dower in the purported deed, delivered the deed to him, David Lynam, in the presence of Wysong in 1939, and that he requested Wysong to keep it for him, although both David Lynam and Wysong testified that they were not on friendly terms at that time. David Lynato claims that at the time the instrument was delivered he gave William Lynam $50; that he had previously, at regular intervals over a period of years, given sums of money-to William Lynam; and that the purported deed was for such past consideration and also to compensate David Lynam by reason of an unequal division of the estate of the parents of David Lynam and1 William Lynam, which division occurred in 1916.

There is testimony of sound probative value to the effect that William Lynam was employed up until a short time before his death; that Elnora Lynam had received $10,000 as proceeds from life insurance upon the death of her first husband; that a short time before her marriage to William Lynam she had a bank deposit of considerable size, and other investments; and that neither she nor William Lynam had any occasion to ask alms. A review of the testimony of David Lynam on that matter shows .that his testimony is not very ■satisfactory. There is testimony, too, to the effect that .David Lynam did not visit Elnora Lynam and William Lynam after their marriage; that he saw Elnora Lynam only a few times; that David Lynam and Elnora Lynam were, not on friendly terms; and that at one time when David Lynam went over to the hpme of Elnora Lynam she chased.him away by stating: “What the hell yon want ont here?”

There is evidence of strong probative value to the • effect that Wysong wanted to obtain this property for his son; that Wysong had made statements to the effect that William Lynam had stated that he intended Wysong to have his-property after his death because ■of their great friendship; that Elnora Lynam and William Lynam, had consulted him about the execution • of wills, each devising their property to the other, but Wysong advised against the execution of wills and ad-wised signing deeds in blank, with the suggestion that the survivor destroy the one deed; and that a deed was better than a will. There is also testimony to show that two blank deeds, on which appeared the signatures of Elnora Lynam and William Lynam, were seen in Wysong’s office; that he stated they would have to be ■ filled in and he would have his daughter, Mabel, do it; ' that after he had the conversation with Matilda Schue.ler, at which time he ceased to act as her attorney, he . held a conversation in his office with David Lynam, at which time he said to David Lynam that William Ly;nam wanted him (Wysong) to have the property, but he •did not want to be a hog, and that David Lynam could have one-half the property and he (Wysong) would take the other half; that thereupon Wysong typed an -agreement between David Lynam and himself, which David Lynam signed; that the blank deed on which appeared the' signatures of Elnora Lynam and William .Lynam was then filled out, making David Lynam the grantee;, and that David Lynam took the instrument and walked out of the office.

There is evidence to the effect that on the evening* after Elnora Lynam died, Wysong called at the residence and, in the presence of two witnesses while discussing the execution of wills, Wysong stated that there was a blank deed in his office signed by Elnora and William Lynam; and that when he was asked whether there could be two deeds to the property he answered: “Why ypu can have as many as you want to, but can’t record more than one at a time, and in case anything happens you can fill in the deed.”

The record shows further that William Lynam, in 1936, gave a mortgage on lots numbered 24560, 24561 and 24562 to the Lincoln Federal Savings & Loan Association of Dayton. At the time the Lynams deeded lot numbered 24560 to the Wentzs that lot was released from the blanket loan and the Wentzs executed a mortgage to the loan association for $1,800. The amount of the Wentz loan was used to reduce the original loan by the Lynams. After David Lynam had his instrument recorded the Wentzs attempted to sell lot numbered 24560. The Lincoln Federal Savings & Loan Association had agreed to make a new loan, but finding the instrument to David Lynam on record the association refused to pass the title. It was arranged to have David Lynam and wife execute a. quitclaim deed to lot numbered 24560. Such a deed was executed in the association offices. The secretary of the association took the acknowledgment and he and a clerk acted as witnesses. The secretary and clerk testified that at the time of the execution of the quitclaim deed Davict Lynam stated that he had no interest in the property. It is observed that the instrument under which David Lynam claims title, and which is in controversy, included lot numbered 24560, and bears a date prior to the date the lot was conveyed to Wentz.

There is evidence tending to show that Wysong, although not an attorney of record in the instant case, did attempt to influence certain.witnesses. One witness testified that Wysong called him a few days before his testimony was to be taken and told the witness not to appear; and that at that time Wysong stated to him it would be embarrassing if he testified. In a conversation over the telephone with one of the witnesses for the plaintiff, Wysong, upon being asked how the case was coming along, stated he had to give $50 to Kennedy, a witness for the defense. Wysong denied having had such a conversation, although the telephone call was made from the office of Durst, attorney of record for the plaintiff in this case. Koogler, co-counsel for plaintiff, and a reputable member of the profession, testified that he had dialed Wysong’s telephone number in Durst’s office and heard Wysong answer; that Wysong spoke in his customary, loud voice; and that he heard Wysong make the statement to the witness that he gave $50 to Kennedy.

On cross-examination David Lynam testified as follows:

“Q. You didn’t find the deed at Drewey’s the first time you contacted him did you? A. No, because he was working for the one party.

“Q. What? A. Working for your party.”

Again, on cross-examination, David Lynam, when questioned why he waited several years to place the instrument on record, testified that it (referring to the instrument) was not ready yet, that he was not ready to get it. Upon being pressed for an explanation as to why he was not ready to get it, he stated that he was too busy. He testified also that he had met Wysong only once, had never been to his office, did not know where his office was on the day he turned the instrument over to Wysong for safe-keeping, and did not learn where Wysong’s office was until the day he called for the instrument in question.'

In determining whether Elnora Lynam executed and delivered a completed deed to David Lynam the court should give considerable weight, under the circumstances, to the following facts, which are undisputed: That if this instrument is valid Elnora Lynam and William Lynam parted with the ownership of practically all their assets soon after their marriage; the unfriendly feeling existing between Elnora Lynam and David Lynam; lack of acquaintanceship and unfriendly feeling existing between David Lynam and Wysong; -that no instructions were given by David Lynam to Wysong as to the disposition- of the instrument; the fact that Wysong did not keep the instrument with other such instruments in his.office; the failure of David' Lynam to record the instrument or make any effort to find the instrument after the death of his brother, as he testified that he did not trust Elnora Lynam, stating she was a grasping woman; that he paid no taxes or insurance, made no repairs on the property, made no payments on the mortgage, and disclaimed any interest in one lot embraced in the instrument, which was later conveyed to Wentz. These matters and the chain of circumstances narrated, together with the unsatisfactory character of much of the testimony7 presented by the defense when given the weight to which it is entitled, would be. sufficient to cause the court to doubt the validity of the instrument as a completed deed of conveyance. When the- owner of property participates in a series of legal transactions jin regard thereto, over a period of years, and consistently deals with the property as her own, and the person who claims title to the property after the •death of the owner followed a line of conduct during the life of the owner consistent with the ownership in . her and inconsistent with the ownership ’ in himself, the' court will accept with caution and regard with suspicion any. evidence introduced in support of his claim of ownership, where the validity of the instrument under which he claims title is seriously questioned, and was not produced until after the death of the owner.

However, there, is still another chain of circumstance supported entirely by documentary evidence and undisputed, which is clear and convincing evidence that Elnora Lynam and William Lynam never intended or considered the instrument in question to be a valid deed of conveyance to David Lynam. These transactions took place in the following chronological order: On June 1, 1938, Drewey Wysong, acting as attorney for William Lynam, drew a déed for all five lots, in which William Lynam deeded the property to Elnora Southwick. Wysong took the acknowledgment and acted as a witness; Wysong’s daughter, Mabel Wysong, who_was his secretary at that time, acted as the other witness. The instrument under which David Lynam claims title was dated March 4, 1939. Wysong took the acknowledgment and acted as a witness; Mabel Wysong was the other witness. That instrument covered five lots, numbered 24560 to 24564, inclusive. On August 29, 1941, Wysong drew a deed from Elnora Lynam and William Lynam to William and Eleanor Wentz, for lot numbered 24560. Wysong took the acknowledgment and was a witness; Mabel Wysong was the other witness. On August 29, 1941, Wysong drew a second mortgage from Wentz to Elnora Lynam for $1,200 on lot numbered 24560.. Wysong took the acknowledgment and acted as a witness. On October 4, 1943, Wysong drew á deed from Elnora Southwick to Elnora Lynam for lots numbered* 24561 to 24564, inclusive. That deed was executed for the purpose of placing the title in the married name of Elnora Lynam. Wysong took the acknowledgment and was one of the witnesses. That deed was filed for record on February 7, 1944, the date on which the will of Elnora Lynam was executed, which will was drawn by Wysong and witnessed by him. In the will Elnora Lynam devised all her property, including the real estate, to Matilda Schueler, the plaintiff herein. After the death of Elnora Lynam the' will was given to Wysong by Matilda Schueler for the purpose of filing it for probate. Wysong, acting as attorney for Matilda Schueler, filed the will for probate in the Probate Court of Montgomery county, Ohio. The will was probated on May 6, 1944, and Matilda Schueler was appointed executrix. Wysong, acting as her attorney, prepared for and effected an appraisal of lots numbered 24561 to 24564, inclusive, as the property owned by Elnora Lynam at the time of her decease. Wysong made some effort to find a purchaser for the property and regarded Matilda Schueler as the owner.

Also'sometime prior to her death, Wysong prevailed on Elnora’Lynam to sign an appeal bond in a case tried in the Municipal Court of Dayton, in which she was required to make a statement as to her ownership of real estate. She possessed no real estate except the lots in question. What explanation does Wysong give for acting as counsel and in assisting in the consummation of those legal transactions, and what is his attitude respecting the legality of the instrument in question? Upon being questioned as to why he drew a will for Elnora Lynam disposing of real estate which was included in the deed in question, he testified as follows:

“Q. And in Item 2nd, ‘I give, devise and bequeath all of my property, both personal and real estate to my beloved aunt, Matilda Schueler, of Dayton, Ohio.’ A. Yes, that’s the way she wanted it.

“Q. She wanted to include her real estate, didn’t she •* * * A. Of course. * * *

• “Q. Answer my question. A. I thought she figured that, and at that timé I wasn’t — I thought she ought to have it, I didn’t know; Dave acted kind of queer to me generally and I didn’t think that — figured Aunt Till should have it; that’s the way I figured at that time; then is when she wanted me to destroy the deed.

“Q.-When did you change your figuring? A. I didn’t change my figuring. ’ ’

. Upon being questioned about drafting other instruments, he testified as follows:

“Mr. Durst: And yet with that deed in your possession for a period of over five years you continued to draft instruments related to this same property to other persons, didn’t you? A'. She came up, yes, and had it done, yes. * * *

“Q. How do you explain, Mr. Wysong, the fact that you a lawyer, practicing here at the bar in Montgomery county, drafted at least three deeds conveying this same property, deeds and mortgages; drafted a will, made an application in the Probate Court of Montgomery county, Ohio, reciting that Elnora Lynam was the owner of this real estate; sent appraisers out to appraise it, obtained a prospective purchaser, in the face of what you have already said it had already been conveyed to David Lynam. A. The truth of it is I didn’t want Dave to get the property.

“Q. Were you making yourself a party to defeat him then? A. No,-1 didn’t do that at all.

“Q. Why didn’t you consider this deed a conveyance all this time?

“Mr. Barger: Objection.

The Court: He may answer that question. (Question read.)

“A. I don’t know except when they came up and wanted this done I did it; maybe I had forgotten some things too, when you get as old as I am you might forget. If you go on your tirading you will be worse than I. ’ ’

“Mr. Durst: Objection.

“The Court: Stricken.

“A. Any amount of people come up and I don’t keep tab of their business or a deed I made out. I wanted her to get the property instead of Dave,, that’s the truth of the matter. ’ ’

Upon being questioned concerning his attitude on the sale of the property by Matilda Schueler, he testified as follows:

“Q. You called her to see if she would sell it? A. No, I called her and talked to her told her I had a party I believed would pay $5250 and she says ‘It is already sold.’

“Q. And if she would have agreed to sell it you would have conveyed it, wouldn’t you? A. I might have, can’t tell what I would have done then, might have done that.”

That testimony is consistent with the contention that Elno'ra Lynam and William Lynam signed a form deed in blank. Wysong was ready and willing to consummate a sale of the property on the basis that the property was owned by Matilda Schueler, the sole devisee of Elnora Lynam, deceased. When he learned Matilda Schueler had sold the property he promptly changed his attitp.de.' What the motive was which caused him to change his attitude may best be found in the facts and circumstances herein narrated.

When counsel has personal knowledge that his client owns certain property and, over a period of years, counsels with his client and renders legal service in the consummation of transactions of a legal character, such as drafting and the execution of deeds, mortgage and will, and makes appearances in a court of record, and conducts legal proceedings in' the court on the assumption that the client was the owner of the property, he cannot be heard to say after the death of the client that the client did not own the property, especially when there is evidence of strong probative value to the effect that the instrument in question was signed in blank upon his legal advice, to be used upon death as a substitute for a will in the settlement of the estate, which instrument ■ was secreted and withheld from record until after the death of the client. We are not unmindful that a deed, properly acknowledged and witnessed and filed of record, is entitled to great weight. 33 Ohio Jurisprudence, 939, Section 135. However, this instrument is not attacked on the ground that it was not signed by Elnora and William Lynam, but it is contended, and there is clear and convincing evidence to support the claim, that the instrument was signed in blank and was intended as a substitute for a will in passing property after death between Elnora and William Lynam. While an instrument which purports- to be a deed, drawn and executed in proper form, is entitled to great weight in the proper case, under the circumstances in this case, and in the light of the' evidence adduced, much greater weight should be given to the series of legal transactions participated in by counsel, which completely and entirely refutes any contention that the instrument was intended to be a conveyance of the property to David Lynam.

An attorney at law is a member of an honorable profession and the relationship which he occupies toward his client is of a highly confidential character. The consistent conduct of counsel, therefore, has great evidentiary value. The court will give great probative value to evidence showing that an attorney at law, in the representation of a client, engaged in numerous legal transactions over a period of years had pursued a consistent line of conduct, including personal appearances in and representation to courts of record, all of which were based on the continued existence of a fact, to wit, the ownership of certain property by the client, of which the attorney at law at all times had personal knowledge, and the court will give little weight to the testimony of such attorney who, after the'death of the client, claims that the client did not own the property, but had passed it to another by an instrument of conveyance which was not produced until after the death of the client, the validity of which instrument is seriously questioned. There /is much evidence of a substantial character which refutes the contention of the defendant and supports the claim of the plaintiff. We are of the opinion that Elnora Lynam and William Lynam signed the instrument in question in blank. Obviously, this was a void deed, and "in the absence of authority, it could not become valid by writing or filling in the essential parts of the instrument over their signatures. The filling in or completion of the instrument after the death of Elnora Lynam was a nullity. In 13 Ohio Jurisprudence, 834, Section 18, the applicable rule of law is stated:

“The ancient law was well settled that a valid deed could not be made by writing it over a signature and seal made upon a blank or an empty sheet of paper. There is no decision by which the ancient doctrine has been overturned. Authority to fill one particular blank falls short of an authority to make an entire deed.”

The text just quoted from Ohio Jurisprudence is supported by the case of Ayres v. Harness, 1 Ohio, 368, 372, 13 Am. Dec., 629. See also 32 A. L. R., 737.

Under the facts and circumstances in this case the court finds the plaintiff has sustained the burden of proof by clear and convincing evidence.

The court decrees the cancellation of the instrument purporting to be a deed of conveyance of lots 24560, 24561, 24562, 24563 and 24564 from Elnora Lynam to David Lynam, dated March 4, 1939, and filed for record May 18, 1944, and recorded in deed book 1051, page 307 of the deed records in the recorder’s office of Montgomery county, Ohio, and having found-that Matilda Schueler is the owner of the real estate, it is ordered that title to the real estate be quieted as against the defendant, David Lynam, and all persons claiming under him. Costs are assessed against the defendant.

Decree accordingly.

Wiseman, P. J., Miller and Hornbeck, JJ., concur.


author: Ross, J.

text:
    Frieman, Appellant, v. Greaves et al., Appellees.

      (No. 6727
    — Decided January 13, 1947.)

      Mr. Walter K. Sibbald, for appellant.

      Messrs. Paxton & Seasongood, for appellees.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county. The trial court, at the conclusion of the plaintiff’s evidence, directed a verdict in favor of the defendants.

The action was brought by a real estate brpker to recover a commission for the sale of real estate and certain businesses, the property of the defendants, of which sale plaintiff claims he was the procuring cause. The plaintiff claims also by reason of an assignment from an attorney associated with him -in the negotiations, which it is alleged resulted in procuring such sale.

The subject of the sale consisted of the businesses known as The Greaves Machine Tool Company, a corporation, whose stock was owned by the defendants, and The Cincinnati Yacht & Supply Company, a partnership consisting of the defendants.

The purchaser was the Fay & Egan Company, a partnership, consisting of Walter E. Schott, Margaret Schott, his wife, and Joseph Schott, his brother.

It appears from the evidence that Walter E. Schott and the Fay & Egan Company had known and done business with the defendants for a number of years before the matter of perfecting a sale of the businesses in question was taken np by tbe defendants with tbe plaintiff or the attorney. It appears also that during this period, the matter of the purchase of these businesses was considered by the Schotts and the Greaves brothers, but the matter lay' dormant for some time, due to the recent war and the presence of Walter E. Schott in the armed forces. The Greaves industries and the Fay & Egan Company were associated in a .number of. business deals. The Fay & Egan Company purchased certain service parts for use in their woodworking machine business, and, on the other -hand, had loaned certain machinery to the Greaves industries. Walter E. Schott entered the armed forces and remained in service almost three years.

During the year 1944, the defendants and Walter E.' Schott had a number of conferences in which the purchase of the Greaves businesses was discussed.

On June 30, 1945, at the home of Walter E. Schott, an option to purchase, the businesses was executed by the Greaves in favor of Joseph J. Schott, a partner in the Fay & Egan Company, or his nominee, to expire at the end of 35 days. Walter E. Schott being still in thé service at the expiration of that period, the option was extended from time to time until August 1945 when the deal for the sale of the businesses to the partners in the Fay & Egan Company was closed.

Neither the plaintiff nor the attorney had any direct contact with any of these partners or solicited them to purchase these businesses.

In the latter part of 1943, the defendants, advised their attorney, Albert Spievack, that they were d'esir-' ous of selling their businesses, the tool company and the yacht and supply company.

The attorney busied himself for some time in an effort to accomplish this task and then, realizing he was not a qualified real estate.'broker, enlisted the services of the plaintiff who was such a broker.

George Greaves, called for cross-examination by the plaintiff, testified that» Spievack told him that the plaintiff “was more or less his leg man, his errand man, and that he would assist Mr. Spievack in the sale of our businesses.”

It is apparent that both the plaintiff and the broker were active in securing a purchaser for the businesses and spent a great deal of time and labor in this ■effort. They brought more than one proposal to the defendants, but owing to certain difficulties due to the uncertainty of the amount of taxes to be assessed against the businesses, these offers never reached any definite form or conclusion.

There is also evidence that Walter E. Schott was cognizant of these negotiations, and that there was a strong probability that one of them would mature into a definite offer to purchase, which would be acceptable, to the defendants. ,

In the summer of 1943, Schott stated, “Coleman Harris called me and said they were planning on purchasing or trying to purchase the Greaves company and I said, ‘All right, go ahead, we are working on the same thing. In fact,’ my brother Joe Schott is working on it and if you buy it we may work out a deal with you. We are only interested, in certain things. We are not interested in everything, and if you buy it we may be interested in buying them from you.’ ”

It is clear also.that, shortly before an understanding was definitely reached between the defendants and the Schotts resulting in the option, matters under the management of the plaintiff and Spievack were reaching a final stage, resulting in an offer from a group of financiers with whom the ’plaintiff and the attorney had been working for some time.

It is clear also that Walter E. Schott was made-aware of the imminence of that conclusion and promptly closed with the Greaves. It is upon this basis the plaintiff seeks to recover.

In his brief the plaintiff states: “The Schotts must have felt that haste ■ was necessary if they were to-prevent the other interested parties from participating in the purchase. ’ ’

There is evidence that the plaintiff sought to interest a man by the name of Gabriel, who was purchasing-agent for the Fay & Egan Company. In connection with such conference, plaintiff states in his brief: “If the plaintiff’s meeting with him caused the Schotts to-resume the negotiations with the defendants, which had been dormant for a long time, then the question became one of whether the plaintiff had found and introduced a customer.” (Emphasis added.) And,, again, in the brief, it is stated: “* * * and if the competition among the prospective purchasers created by the plaintiff, resulted in this sale being made, then plaintiff was the procuring cause of the sale and earned his commission. ”

Thus, the plaintiff takes the definite position, not that he induced the Schotts to purchase from the Greaves by any direct or indirect solicitation, but that he scared them into purchasing from them.

The proposition is very simple. It is not that a broker induces A to purchase from B, but that by bringing 0 into an attitude of a purchaser from B, the broker causes A to close with B. If the plaintiff had been negotiating with the Schotts and had used this device to secure an offer from- them to the Greaves,, a different situation would be presented. That such is not the case is shown by what occurred at a conference in which the plaintiff and George Greaves were present at the office of the latter at the time prospective purchasers were presented. to George Greaves.

In regard to testimony of the witness, Sidney Brant, the record discloses:

“Q. While you were out there at these meetings I will ask you whether you ever talked with any of the Greaves brothers? A. Only with Mr. George Greaves.

“Q. Can you tell us when it was you talked with him? A. I cannot fix any exact date because I didn’t make any notation, but T know it was .prior to the date a written offer was submitted by Moskowitz brothers for the purchase of the Greaves plant.

“Q. Are you familiar with that written offer? A.' I am, sir.

“Q. I will show you exhibit No. 4 and ask you if that is the offer that you referred to ? A. That seems to be it, yes, sir.

“Q. Will you tell us, Mr. Brant, just what was said by you and by George Greaves and Philip Moskowitz and Mr. Frieman or any one who attended that meeting that you have referred, to? A. Well, that we were interested in, because Mr. Greaves was talking at this time about selling the stock, and if our clients purchased the stock of the corporation we wojild naturally inherit any tax liability, so the thing I wanted determined at that time was first of all if the officials’ salary had been raised, because if the officials ’ salary had been raised, if they had been raised without the permission, then we would be taking over an income tax problem. In addition to that we discussed the question of a tax liability'on a pension trust and it was represented to us in oral conversation with .Mr. Greaves that there were certain assets of the corporation which did not appear on their statement. He contended that there were certain other assets there and we had a conversation about the possible tax liability in the event our clients purchased this plant, and we also asked him in the event we made an offer, would we be in the position of having him take that offer and peddle it around to different persons and we mentioned a specific party at that time.

“Q. Who did you mention? A. Mr. Walter Schott.

“Q. Tell us just what was said as near in the lan-. guage as you can, in which Mr. Walter Schott’s name was used. A. Well, I am just going back in my memory now. We asked him in the event we gave him a written offer, ‘Are you going to take it to Walter Schott and ask him to increase his offer and then give it to him’ and he said no, he would not do that.”

The plaintiff relies on certain evidence that intimate associates of the purchasers, and especially of Walter E. Schott, were involved in negotiations which resulted in offers to the defendants by various groups.

Walter E. Schott has five brothers, Joseph Schott, a partner in th¡e Fay & Egan Company, Milton Schott, an attorney associated in business with Harry Burns, an attorney for many of the Schott interests, Harold and Alfred Schott, associated with Walter E. Schott in certain businesses, and Earl Schott, engaged in business independently of Walter E. Schott. ■ •

There is evidence that Harold Schott was present, at meetings where the purchase of the Greaves interests was considered and more or less definite propositions to purchase agreed upon. There is also evidence that Harry Burns was consulted about these propositions and on one occasion advised those negotiating such purchase that certain machinery held by the Greaves belonged to the Fay & Egan Company.

None of this evidence justifies the inference that the knowledge acquired by those close to Walter E. Schott and which it may reasonably be supposed was communicated to Walter E. Schott was instrumental in causing the purchase of the businesses except to the extent that such knowledge of an impending deal with interests other than the purchasers caused the purchasers to close with the defendants. There is absolutely no evidence that such business associates, including Gabriel, the purchasing agent of the Fay & Egan Company, were ever approached or even considered by the plaintiff or his attorney associate as agents or representatives of the purchasers. The evidence is definitely conclusive that neither the plaintiff nor Spievack ever tried to sell these businesses of the defendants directly or indirectly to the purchasers. Of course, there is no claim of an exclusive contract of sale on behalf of plaintiff at the time the Greaves sold to the purchasers. Such a contract is the 'method used by brokers to protect themselves. If the broker is willing to operate upon a basis permitting independent action on the part of the owner, he cannot complain if a sale is made by the owner of which he is not the procuring cause.

The plaintiff relies upon a number of authorities, particularly the case of Lippert v. Page, 13 C. C. (N. S.), 105, 22 C. D., 44, as sustaining his claim that he is entitled to a commission for a sale made under the circumstances here involved.

None of such authorities meets the present situation. In the Lippert case, at page 110, it is stated in the opinion: “ * * * but in such cases it must affirmatively appeár that the purchaser was induced to apply to - the owner through the means employed by the broker.” (Emphasis added.)

It must be remembered that the defendants and the purchasers had been associated in business for many years prior to the employment of the attorney of the defendants to sell the businesses.

It is conclusively shown also that during this period the matter of sale to the purchasers was almost' continuously under consideration.

■ The plaintiff cannot recover a commission'because he scared the purchasers into action. Such a rule would permit recovery in almost any case where a sale was made independently of the direct action of the broker.

The writer of this opinion dissented in the case of Robert A. Cline, Inc., v. Union Thread Co., 73 Ohio App., 393, 56 N. E. (2d), 517, because it was apparent to him that the broker there was the procuring cause of the sale. The instant case contains no factor impelling a similar conclusion. The Cline case is authority for affirmance of the action of the trial court.

The plaintiff complains also of the action of the trial court in excluding certain evidence. The proferta appearing in the record fail to show any instance where, if such evidence h,ad" been admitted, it would have tended to prove that the plaintiff was the procuring cause of the sale. It merely tended to prove that the purchasers were made aware of the terms of impending offers by others, or that such purchasers were caused to act more promptly than they otherwise would have acted. There was no evidence introduced or proffered indicating that the purchasers were made aware through the efforts of plaintiff that the defendants possessed a selling attitude. On the contrary, the evidence is conclusive that the purchasers were continuously aware of such attitude for many years before the plaintiff knew of such attitude; that the purchasers, owing to their close association with the defendants, fully understood the whole situation; and that, had it not been for the war and the absence of Walter E. Schott in the service, and the difficulty over tax adjustment, the purchasers would have closed the deal much earlier. The defendants were proceeding along two parallel lines of effort to sell their businesses, one directly with the Schotts and the other through the efforts of plaintiff. Either might have resulted in consummation. For one, the plaintiff would have been entitled to commission. For the other, he is not.

One further matter is presented by this appeal. The defendants claim the action of the trial court was correct, because it is asserted that the evidence showed that the plaintiff’s commission is to be divided with an unlicensed broker, Spieyack. If this be true, the plaintiff, cannot recover. S. D. Stanson, Inc., v. McDonald, 147 Ohio St., 191, 70 N. E. (2d), 359.

If this case had been submitted to- a jury, there was evidence upon which the jury might have predicated, a verdict for the defendants upon that basis. (

The attorney testified that he expected the plaintiff to divide with him upon a gentlemanly basis, although he had executed an assignment to plaintiff of all his interest in the commission for a purely nominal consideration. However, the action of the trial court is being considered upon a verdict directed at the close of the pláintiff’s evidence. Under such circumstances, all doubts as to the reasonable inferences from evidence are to be resolved in favor of the plaintiff. For this-reason, it would be improper to predicate affirmance of. the action of the trial court upon that basis. No splitting of commission is conclusively shown by the evidence in the plaintiff’s case.

The judgment of the Court, of Common Pleas is affirmed.

Judgment affirmed.

Hildebrant, P. J., Matthews and Ross, JJ., concur in the syllabus, opinion and judgment.


author: Hornbeck, P. J. By the Court.

text:
    Lyle, a Minor, Appellant, v. Olentangy Corporation, Appellee.
    (No. 3924
    — Decided November 1, 1946.)

      Messrs. Herbert & Pombey and Mr. Russell E. Leasure, for appellant.

      Mr. M. K. Chew and Mr. Collis Gundy Lane, for appellee.
   Hornbeck, P. J.

This is an appeal on questions of law from a directed verdict for the defendant and judgment thereon.

The action was for damages for personal injuries suffered by plaintiff in falling on “a public concourse in front of defendant’s bowling alleys. Four errors are assigned:

1. Error in sustaining defendant’s motion for an instructed verdict in its favor made at the conclusion of plaintiff’s evidence.

2. Error in excluding certain statements made by defendant’s employee while acting within the scope of his employment.

3. Error in the exclusion of evidence of plaintiff in the form of a statement made by defendant’s employee as' part of the res gestae while acting in the scope of his employment.

4. Error in excluding evidence of previous accident as affecting defendant’s knowledge of the dangerous condition of its floor.

It is essential to an appreciation of the principal questions urged that the specific averments of negligence be set out. They are:

1. That the floor was highly waxed and polished, rendering it dangerous and very slippery in certain spots.

It should be noted that the averment is that the floor was dangerous, not in its entirety, but in certain spots and by reason of being highly waxed and' polished. The second specification is:

2. That the dangerous and unsafe condition (set out in specification No. 1) was called to the attention of the manager of the recreation room who was then and there acting within the scope of his employment, but the manager failed and neglected to take the necessary action to apprise its patrons, particularly this plaintiff, of the dangerous and unsafe condition.

The proof as to the first specification of negligence is found in .the testimony of plaintiff, which was admitted, that upon walking over the floor it was found to be very slippery, more so than usual and that it was more slippery in some spots than others. There was no proof that there • were' any splotches of oil or any unusual condition in the surface of the floor or in the waxing and buffing thereof or in the manner of applying the wax thereto. The other class of testimony tending to show the dangerous and unsafe condition of the floor was a statement made by Harold George Pike who, it is claimed, was the managing agent and in control of the defendant’s place of business on the night that the accident occurred. The statement was to the effect that the witness had- said two other persons had fallen on the concourse on the night the plaintiff fell. The other testimony, intended to show the dangerous condition of the floor, was in the proffer of refused testimony sought to be adduced by questions propounded to the witness, Pike, to the effect that prior to the accident boys had skated on the surface of the floor.

It will be noted that the first proffer was not to the effect that others had fallen on the floor but that the witness had said that others had fallen. This observation was made by the witness- after the plaintiff had fallen, had been removed to an adjacent room and some ten minutes had elapsed. It is tendered upon the theory that it is" a part of the res gestae. The trial judge held to the contrary. The authorities support his position. The statements were not so closely connected with the occurrence of the injury as to constitute a part thereof. They were not spontaneous expressions emanating from, and as a result of, the immediate influence of, the occurrence which caused plaintiff’s injury. 17 Ohio Jurisprudence, 345; Stough v. Industrial Commission, 142 Ohio St., 446, 52 N. E. (2d), 992; Cincinnati Interurban Co. v. Haines, 8 C. C., (N. S.), 77, 18 C. D., 443; Cincinnati Traction Co. v. Jamison, 13 C. C. (N. S.), 110, 22 C. D., 336.

We have discussed the admissibility of the statements claimed to be a' part of the res gestae upon the assumption that Fike was shown to be the agent of defendant company in charge on* the night of plaintiff’s injury. There is serious doubt if such proof is made. Fike said that he acted as manager in the absence of ■ the regular manager; that they were Avithout' a manager for a period of time during the summer when he (the witness) acted at nights as manager. Finally, this question was put and answer was made:

“Q. You were in charge at night under those circumstances? A. That is right, if it was that particular time I would say I was, if it was at that period of time. ’ ’

The matter was not made any more definite.

The* witness was interrogated as follows:

“Now, Mr. Fike, I will ask you whether or not on the day of this accident any of the patrons of the bowling alley or the building itself skated over that portion of the floor?”

And, also,

“* * * whether day in and day out for at least a AAreek or tw.o weeks previous to this accident patrons of the bowling alley, primarily North High St. boys and girls, skated over this portion of the floor where Miss Lyle was found immediately‘following her fall?”

The answer to the latter question should have been ■permitted, but the answers as proffered would not in themselves have been sufficient to establish the essential elements of plaintiff’s case.

As we have hereinbefore noted, the averments of negligence which are connected are, first, a floor dangerous and slippery in certain spots because of its being highly waxed and polished, and, second, that such condition was brought to the attention of the manager of the recreation room. The charge is not that the floor in its entirety created an unsafe and dangerous condition, and we are not discussing such a case which may be differentiated from that which is set out in the amended petition here.

Under the language and holding of our Supreme Court in J. C. Penny Co. v. Robison, 128 Ohio St., 626, 193 N. E., 401, 100 A. L. R., 705, the plaintiff failed to make a case. Here, as in the cited case, the negligence charged is substantially the same and the only proof as to any dangerous condition created by the waxing of the floor was that it was waxed and polished every day. Nor is there shown any difference or unusual condition, except as a conclusion of plaintiff, in one part of the floor ,as distinguished from the other. There is no testimony which would constitute notice to' Fike of any dangerous condition such as is pleaded.

No assignment of error is established except the refusal of the court to admit certain testimony, which was not materially prejudicial to plaintiff’s rights; and, as no other error intervened to the prejudice of plaintiff in the direction of the verdict for defendant, the judgment must be affirmed.

Judgment affirmed.

Wiseman and Miller, JJ., concur.

(Decided November 15, 1946.)

On Application for rehearing.

Messrs. Herbert é Dombey and Mr. Russell E. Leasure, for appellant.

- Mr. M. K. Chew and Mr. Collis Gundy Lane, for appellee.

By the Court.

The cause is here submitted on plaintiff’s application for rehearing, consisting of two grounds:

1. The court did not give plaintiff’s evidence the most favorable intendment to plaintiff.

2. The court cited cases involving res gestae where the statements made were in response to inquiries, therefore not spontaneous.

We are quite familiar with the principle that on a motion for directed verdict the evidence must be given the most favorable intendment for the plaintiff. This we did in the consideration of the appeal. It is true that we mentioned ten minutes as the time elapsing between the injury to the plaintiff and her conversation with Fike and that is at variance with-the testimony of the plaintiff who fixed the period as five minutes. The plaintiff is entitled to the most favorable interpretation of the testimony which is required by the variation in the time. However, all other circumstances surrounding the statement were as we set them out and the difference in time alone would not be sufficient to overcome the particulars wherein we indicated that the statement sought to be proffered was not spontaneous and of such character as to make it a part of the res gestae.

The second ground of the application is but a reiteration of the first. It is urged that we are not clear in our statement of controlling principles. That may be. In any event, we doubt if we could add anything to clarify what we have already stated. It is true that we set forth some grounds to support the action of the trial judge in directing a verdict which he did not specifically rely upon for his action. That, of course, is immaterial because the test is whether for any reason he was correct in the action taken.

The application for rehearing will be denied.

Application denied.

IIornbeck, P. J., Wiseman and Miller, JJ., concur.


text:
    The State, ex rel. Cromwell, Appellee, v. Myers et al., Appellants.

      (No. 1934
    — Decided May 7, 1947.)
    Mr. Robert C. Knee, for appellee.

      Mr. Nicholas F. Nolan and Messrs. Landis, Ferguson, Bieser é Greer, for appellants.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, rendered against the respondents,, appellants herein, Chester A. Myers, the American Surety Company and the New York Casualty Company, in the sum of $28,077.14.

The relator, appellee herein, Ben Cromwell, as a taxpayer of Montgomery county, brings this action in the name of the state of Ohio for the benefit of the-county to recover the sum of money paid to Myers,, treasurer of the county, by the Miami Conservancy District, the sum being one per cent of delinquent Miami Conservancy District taxes collected by him from 1934 to 1943, inclusive.

The matter was tried to the court without the intervention of a jury. The essential facts were stipulated by agreement of counsel.

The record shows that from the first Monday in September, 1933, Chester A. Myers has been acting-as the duly elected and qualified treasurer of Montgomery county; that from 1934 to 1943, inclusive, the-Miami Conservancy District paid to Myers one per cent on delinquent taxes collected by him for the district, under the provisions of Section 6828-56, General ■Code, which taxes, in the aggregate, amounted to $19,558.22. That money was retained by Myers for.his ■services in making the collection. The relator contends that Meyers was not authorized to retain the money as his own, but was required to pay the money into the general fund of the county.

The trial court sustained the claim of the relator and rendered judgment against the respondents in the sum of $19,558.22, together with six per cent interest on the annual remittances from the date of payment.

Under the several assignments of error the respondents claim that the judgment is contrary to law.

The sole question for the court to determine is whether Myers was authorized to retain for his ■own use the one per cent of delinquent taxes collected by him for the Miami Conservancy District, under the provisions of Section 6828-56, General Code, or required to pay the same into the county treasury to the credit of the general fund, under the provisions of Section 2977, General Code.

The Conservancy Act of Ohio, under which the Miami Conservancy District was organized, is found in Sections 6828-1 to 6828-79, inclusive, General Code. Section 6828-56, General Code, provides:*

“If any county treasurer or other person entrusted with the collection of these assessments refuses, fails or neglects to make prompt payment of the tax or any part thereof collected under this chapter to the treasurer of said district upon his presentation of a proper demand, then he shall pay a penalty of- ten per cent, on the amount of his delinquency; such penalty shall at once become due and payable and both he and his sureties shall be liable therefor on his official bond. The said county treasurer shall retain for his-services one per cent, of the amount 7ie collects on-delinquent taxes.” (Emphasis ours.)

The respondents contend that under the provisions-of that. section Myers was authorized to, and did,. retain the one per cent of the amount he collected in. delinquent taxes. The relator contends that Myers was-required to pay the money -into the county treasury to the credit of the general fund of the county, under the provisions of Section 2977, General Code, which provides:

“All the fees, costs, percentages, penalties, allowances and other perquisites collected or received bylaw as compensation for services by a county auditor,, county treasurer, probate judge, sheriff, clerk of' courts,-surveyor or recorder, shall be so received and! -collected for the sole use of the treasury of the county in which they are elected and shall be held as public moneys belonging to such county and accounted for- and paid over as such as hereinafter provided. ’ ’

There are several other related sections which provide for the disposition of fees, percentages, etc., and compensation to be paid to -the county treasurer-Section 2983, General Code, in part, provides:

‘-On the first business day of each month, and at the end of his term of office, each of such officers shall pay into the* county treasury, to the credit of the-general county fund, on the warrant' of the county auditor, all fees, costs, penalties, percentages, allowances and perquisites of whatever kind collected by his office during the preceding month or part thereof for official services, provided that none of such officers shall collect any fees from the county; ’ ’

Section 2991, General Code, contains the salary schedule for the county treasurer.

Section 2996, General Code, provides as follows:

“Such salaries and compensation shall be instead of all fees, costs, penalties, percentages, allowances -and all other perquisites of whatever kind which any of such officials may collect and receive, provided that in no case shall the annual salary and compensation paid to any such officer exceed six thousand dollars, ■except in the case of the probate judge whose annual -salary shall not exceed nine thousand dollars.”

Section 2977, General Code, together with the other related sections, were passed for the purpose of abolishing the former county fee system. It became the settled and fixed policy of the state to pay to elected public officials a salary for their official services. However, the Legislature has the power to modify or depart from that settled policy whenever it desires to do so. It has done so in certain instances. Under former Section 2846, General Code, the sheriff was allowed to “receive from the county treasury in addition to .his salary his legal fees for services in criminal case wherein the state fails to convict,” etc. (Emphasis ours.)

Section 3004, General Code, provides that the prosecuting attorney shall be allowed annually “in addition to his salary and to the allowance provided by Section 2914, an amount equal to one-half the official salary,” •etc. (Emphasis ours.)

Those sections are not particularly helpful in determining the issue in the instant case, as the statute ■expressly provider that the extra allowance shall be “in addition to his salary.” A provision similar to that contained in Section 6828-56, General Code, is found in Section 5348-lOb, General Code, which provides that the probate judges shall receive fees for services rendered in .inheritance tax proceedings and •authorizes such fees “tobe retained by them personally as compensation for the performance by them of the • additional duties imposed on them,” etc.

We recognize the rule that the legislative intent to allow compensation in addition to that allowed under the salary law must clearly appear. State, ex rel. Enos, v. Stone, 92 Ohio St., 63, 110 N. E., 627. In State, ex rel. Locher, v. Horner, 16 N. P. (N. S.), 449, 25 O. D. (N. P.), 144, the clerk of courts was denied the right to-retain for his own use fees in naturalization cases, although the United States Naturalization Act provided that the clerk was authorized “to retain one-half of the fees” collected by him in. such naturalization cases. In Talbott v. State, ex rel. Houston, 5 Ohio App., 262, the Court of Appeals of the Second Appellate District held that under the salary act of 1906, and prior to the enactment of the General Code of 1910, “clerks of the courts of common pleas are entitled to retain one-half the fees received by them in naturalization cases. ’ ’ That case turned on the use of the word “now” in Section 1 and also in Section 18 of the •original county salary act. Section 1, in part, provided that “all the fees, costs, penalties, * * * which by law may now be collected,” etc. Section 18, in part, provided that “said salaries shall be in lieu of all fees, costs, penalties, * * * which any of the officials herein named may now collect,” etc. (Emphasis ours.) Sections 1 and 18 of the original county salary act were included and superseded by Sections 2977 and 2996, respectively, of the General Code, passed on February 14, 1910. When the General Code was passed in 1910 the word “now” was omitted from Sections 2977 and 2996, General Code, In the case of Talbott v. State, ex rel. Houston, supra, the fees in question were collected before the passage of the General Code of 1910, and, consequently, the salary law, as it was passed in 1906, applied.

In construing Section 6828-56, General Code, we are .required to determine whether the Legislature, when it provided that “The said county' treasurer shall retain for his services one per cent. of the amount he collects on delinquent taxes,” intended that the county treasurer shall retain such sum for his own personal use, or intended that he should pay the money into the county treasury, as provided by Sections 2977 and 2983, General Code. In State, ex rel. Harness, v. Roney, 82 Ohio St., 376, 92 N. E., 486, it is held:

“The province of construction is to ascertain and .give effect to the intention of the legislature, but its intention must be derived from the legislation and may not be invented by the court.”

We must gather the legislative intent from the provisions of the Conservancy Act of Ohio.

The relator contends that there is no inconsistency or repugnancy between the provisions of Sections 6828-56 and 2977, General Code. It is . urged that Section 6828-56, General Code, merely authorizes the county treasurer to receive a- per cent of delinquent taxes collected by him, and that Section 2977, General Code, directs the distribution of such sums of money. With that contention we do not agree. Under Section 2977, •General Code, and related Sections 2983 and 2996, General Code, if those sections stood alone, the county treasurer would be required to pay the moneys into the treasury of the county to the credit of the general •county fund. Under Section 6828-56, General Code, the county treasurer is authorized to “retain for his • services” such moneys. In our judgment there is a repugnancy which cannot be ignored and the provisions of the several' sections, when considered together, cannot- be construed to harmonize. In determining the intention of the Legislature we must consider the purpose to be served by the Conservancy Act. In 37 Ohio Jurisprudence, 662, Section 363, the rule is stated as follows:

“In construing a statute, courts frequently refer to the 'design’ thereof, or to that which is 'designed’ to he accomplished thereby. When the real design of a legislature, in ordaining a statute, although it is not precisely expressed, is yet plainly perceivable or ascertainable with reasonable certainty, - the language of the statute should be given such a construction as will carry that design into effect.”

In City of Cincinnati v. Guckenberger, 60 Ohio St., 353, 54 N. E., 376, it is held:

“A code of statutes relating to one subject, is presumed to be governed by one spirit and policy, and intended to be consistent and harmonious, and all of the several sections are to be considered in order to arrive at the meaning of any part, unless a contrary intent is clearly manifest. ’ ’ •

A review of the provisions of the Conservancy Act leads to the conclusion that the Miami Conservancy District became a separate, distinct, political subdivision of the state of Ohio, operating as a distinct entity, independently of any other political subdivision, and was organized, administered and operated for the sole and specific purpose of preventing, and protection against, floods. The district lias its own court, consisting of common pleas judges drawn from the counties composing the district (Section 6828-5, General Code), its own board of directors (Section 6828-8, General Code), its own president, secretary (Section 6828-9, General Code), and its own treasurer, chief engineer, attorney and other agents and assistants as may be needful (Section 6828-11, General Code).

' The common pleas judges who constitute the court receive compensation for their services (Section 6828-5, General Code), and the state treasurer is also allowed reasonable compensation, together with the costs of the office of the treasurer of state for registering and paying bonds issued by the district (Section 6828-47, General Code). The portion of the funds paid to the treasurer of state that represents the costs of his office shall be paid into the state treasury to the credit of the general revenue fund (Section 6828-47, General Code). It is assumed that the remaining portion of the funds paid to the state treasurer is retained by him, personally. The act provides that all persons, whether officers of the district, or public officials, who. perform services for the district are to be compensated out of district funds. The legislative intent is clear that the district is to carry the entire financial burden incident to' its operation and administration and that all persons performing services for the district are to be personally compensated.

Under the provisions' of Section 6828-51, General Code, the county treasurer who collects assessments for the district is required, on warrant of the county auditor, to pay such moneys to the treasurer of.the district. Under Section 6828-52, General Code, the county treasurer, before receiving the assessment book, “shall execute to the district and deliver to the board of directors a bond with at least two good and sufficient sureties or a surety company, and which shall be paid for by the district, in a sum prescribed by the board of directors and approved by the court, conditioned that said treasurer shall pay over and account for all assessments so collected by him according to law.”

That section provides further that the secretary of the district shall be the custodian of the bond.

Section 6828-56, General Code, which has hereinbefore been quoted in full, provides that if the county treasurer, or othe,r person entrusted with the collection of the assessments, refuses, fails or neglects to make prompt payment thereof to the treasurer of the district, he shall pay a penalty of ten per cent on the amount of his delinquency. Then follows the language under construction: “The said county treasurer shall r„etain for his services one per cent, of the amount he collects on delinquent taxes.” It is significant that the provision for compensation to the county treasurer for his services is contained in the same section which imposes a penalty upon the county treasurer for his failure to properly discharge his responsibility under the act.

Section 6828-58, General Code, provides in part:

“Before any duties devolve upon a county auditor or a county treasurer under this chapter, the board of directors of the district shall consult them and agree upon the salaries for the extra clerical force, if any, required in their respective offices to carry out the requirements of the law * * * and the said board of directors shall provide for and pay said salaries to said clerk or clerks, while engaged on the work of the district, which clerks shall be selected and appointed by each of said county officers for their respective offices.”

Thus it appears that before the' county treasurer enters upon his duties he must meet the qualifications prescribed by the act; first, by giving a bond, which runs in favor of the district, and, second, by agreeing with the board of directors respecting extra clerical force.

It must be observed that in collecting conservancy .assessments the county treasurer is performing services which are not prescribed as duties 'of the county treasurers under the general law; such services do snot devolve upon the county treasurer by virtue of his office, but are outside and beyond bis usual legal duties. Only the treasurers of counties wbicb are a part of a district organized under the act are called upon to perform, such services. The case hereinabove cited, relative to the payment of additional compensation to county clerks for their services in naturalization matters, involved a question applicable to. the clerks of every county in the state. Statutory provisions relative to the payment of additional compensation to sheriffs, prosecuting attorneys, probate judges, hereinabove referred to, have a state-wide application. The question as to whether the county treasurer is authorized to retain for'his own use one per cent of the delinquent taxes collected for the Miami Conservancy District does not have a state-wide application. Herein lies a clear distinction, which gives rise to a different legislative intent.

Under the Conservancy Act the county treasurer, in performing his duties for the district, is not acting for the county but for the district; he is required to make a distinct, independent qualification for the office, the qualification being prescribed by the Conservancy Act; the money which he collects is not county money but district money; he does not account to the county, but to the district officers; his responsibility is to the district, and his. bond runs in favor of the district; if he fails to make prompt payment to the district, he is penalized for his delinquency; for that personal service and personal responsibility, the Legislature recognized his right to be compensated, personally, and so provided in Section 6828-56, General Code. The treasurers of the counties embraced in the Miami Conservancy District organized under the Conservancy Act of Ohio perform services for a separate and distinct political subdivision, operating and administered as a distinct entity, and those treasurers, as such, occupy a distinct, independent office from that of treasurer of the county; perform services not required of them as county treasurers, under the. general law of Ohio, and in collecting delinquent taxes, for the district they are performing services for the district rather than the county. Herein lies another clear distinction, from which the court may draw á different legislative intent.

After a consideration of the provisions of the act, the purpose to be accomplished, and the manner in which the district is operated and administered, the conclusion is inescapable that the Legislature intended to, and did, make an exception to the general salary law in the enactment of Section 6828-56, General Code. If any doubt exists as to the legislative intent, all such doubt is removed by the enactment of Section 6828-76, General Code, which, in part, provides:

“All acts or parts of acts conflicting in atvy way with any of the provisions of this act [Sections 6828-1 to 6828-79, General Code] in regard to improvements, of this or a similar character, or regulating or limiting power of taxation or assessment, or otherwise interfering with the■ execution of this law according to its terms, are hereby declared inoperative and ineffective as to this act, as if they did not exist.” (Emphasis ours.)

In our consideration of the provisions of that section, and the ascertainment of the legislative intent, we recognize and apply the well-established principle of law that the Legislature is presumed to know the existing statutes, and the state of the law, relating to the subjects with which it deals. 2 Lewis’ Sutherland Statutory Construction (2 Ed.), 852, Section 447. After giving due consideration to the provisions of .'Section 6828-76, General Code, we are of the opinion that the legislative intent is plainly perceivable and ascertainable with reasonable certainty that the provisions of Section 6828-56, General Code, should prevail over the salary law (Section 2977, General Code). Consequently, Myers is entitled ,to retain for his own personal use the' moneys in question.

The judgment of the trial court is contrary to law, prejudicial to the rights of the respondents, and is, therefore, reversed. Costs are assessed against the relator.

Judgment reversed.

Wiseman, P. J., Miller and Hornbeck, JJ., concur.