text:
    Thompson, Admr., Appellant, v. Parrett et al., Appellees.
    (No. 4104
    Decided March 1, 1948.)

      Mr. Francis M. Thompson, for appellant.

      Mr. James M. Eengst, for appellee The Fidelity & Deposit Company of Maryland.

      Messrs. Vorys, Saier, Seymour & Pease and Mr. Byron E. Ford, for appellee The National Casualty Company.
   By the Court.

This is an appeal on questions of law from a judgment of the Probate Court of Franklin county, in an action to determine heirship." The action was instituted on October 14, 1946, by Francis M. Thompson, administrator of the estate of Gordon J. Parrett, who claims that his presumed decedent disappeared on May 19, 1936, and has not reappeared. The-plaintiff asks the court to fix the true date of death, or presumed death of his decedent, the priority of claims of defendants and otherwise determine the heir-ship and distributive rights of all the parties herein.. The Probate Court found that the decedent died by committing suicide on the date of his disappearance and based his finding on a statement of the decedent made to his aunt on the day before his disappearance. Electa Parrett Maxwell,-the aunt of decedent, testified as follows:

“Q. When did you last see Gordon J. Parrett? A. I saw him on Monday before he left, I think he left on Tuesday, I have it fixed in my mind he left on Tuesday, but he was at our house on Monday that same-week.

“Q. If he left May 19th, then it was on May 18th you saw him last? A. Yes.

“Q. Did he make any remarks that would indicate-what his future was going to be? A. Well, he and I talked quite a while, we sat down and visited. He said, ‘You know what I did this morning?’ Well, he was sort of jolly-like, I said, ‘Well, hard to tell, Gor-don, what you did, you do so many things.’ He said,. H put everything in the Lord’s .hands this morning, I put my mother and my house and my flowers and my work, I put it all in the Lord’s hands this morning.’ I didn’t ask him — I just let it go at that — why he didi it. ”

The trial court stated in its opinion:

“The court can draw, a fair deduction from the language which he used that he intended to end his life within a short time. We think this circumstance alone is sufficient to justify the court in holding that his death occurred at or near the date of his disappearance.”

The plaintiff claims that, the judgment of the trial ■court, is against the weight of the evidence and contrary to law and the legal presumptions.

We give due recognition to the rule that a reviewing court may not disturb the judgment of the trial court on the weight of the evidence simply because, the evidence is conflicting or because it may have arrived at a different conclusion if it had been sitting as the trial court. Before a reviewing court will be warranted in reversing the judgment of the trial court it must find such judgment to be against the manifest weight of the evidence. 17 Ohio Jurisprudence, 383. The statement made by Parrett to his aunt, taken by itself, in our opinion, does not support the conclusion that he committed suicide. This statement must be interpreted and considered in the light of all the .evidence.

The evidence shows that Parrett was 35 years of age, unmarried, gainfully employed, in good health, and resided with his mother and two brothers at the time of his disappearance. He was deeply religious and made many week-end trips to other cities where he engaged in religious activities. He had a yearning' to become a missionary and at one time stated that he intended to go into religious work. He was not a religious fanatic but had a strong desire to practice his religion. A few days before leaving, he worked overtime to get all the garden made. On the day before he left be stated he received a telephone call which apparently had something to do with his leaving. When he left his brother walked with him to the car and observed nothing unusual about him. A neighbor who sells newspapers and magazines at the union station saw him sitting in a coach on the Pennsylvania- railroad bound for Richmond, Indiana, a place he frequently visited. The witness engaged him in conversation and observed nothing unusual about him. When he left he was dressed for traveling. The evidence shows there were some things about his home life which irritated and disturbed him.

Prom the facts a conclusion may reasonably be drawn that he intended to leave and not return. The statement he made to his aunt supports this conclusion. The statement was couched in words that would be used by a spiritually minded person. We cannot deduce from this statement, taken together with all the other evidence, that-he intended to take his life. Such a conclusion would be based purely on speculation. His conduct does not support the conclusion that this was his intention. The court recognizes a presumption in favor of a man’s love of life and against suicide or self-destruction. 1 Jones on Evidence (4 Ed.), 107. Trained in the teachings of the Christian religion, as he was, he surely was conversant with the religious doctrine that the soul of a man who takes his own life is forever damned. There is little or no likelihood that a person with pronounced religious convictions will take his own life.

Under the Ohio law, unexplained absence for seven years raises a presumption of the fact of death. The law raises no presumption as to the precise time of death.' The presumption is, in absence of definite evidence to the contrary, that such person is dead at the end of seven years. 13 Ohio Jurisprudence, 372; 1 Jones on Evidence (4 Ed.), 112; Davie v. Briggs, 97 U. S., 628, 24 L. Ed., 1086. The presumption of death does not'reíale back to the date of disappearance in the absence of evidence on the subject. 16 American Jurisprudence, 30, Section 35; 1 Jones on Evidence (4 Ed.), 112.

He who asserts that the time of death was on a day prior to the expiration of seven years from the date of his absence carries the burden of proof. To raise a presumption of death at a date within the seven years, special facts and circumstances should be shown reasonably supporting such conclusion. 13 Ohio Jurisprudence, 372; 16 American Jurisprudence, 30, Section 35; 25 Corpus Juris Secundum, 1064; 1 Jones on Evidence (4 Ed.), 112; Young v. Young, 10 Ohio App., 351 (motion to certify overruled); Davie v. Briggs, supra. The case of Prudential Ins. Co. of America v. Phillips, 20 Ohio Law Abs., 228, has been cited by appellees in support of the .proposition that it is the duty of the trial court to fix the date of death where there is a presumed death after seven years absence. The facts in the instant case are clearly distinguishable from the facts in the Phillips case. In that case there was evidence which strongly supported the inference that death had occurred by drowning at or near the date of disappearance. The facts in the instant case do not show any definite time of death. In this respect this case is similar to Young v. Young, supra, wherein the court, on page 353, held:

“Any conclusion -reached is mere conjecture, as the record does/not contain any testimony which would justify the finding that Wheeler J. Young was either actually dead or alive on March 4, 1900, the date of the death of his father.

“This case must, therefore, be determined upon legal presumptions.”

In the case at bar, the evidence being insufficient to warrant a finding that the decedent died on a date prior to the expiration of seven years, we are required to rest the case upon the legal presumption 'that the death of Gordon J. Parrett did not arise until the expiration of seven years from the date of his disappearance. Since presumption of death did not arise until May 19, 1943, his mother and brother predeceased him. His interest in the real estate should descend and distribution of the estate and an order respecting priority of claims of defendants should be made accordingly.

The plaintiff has assigned as error that the judgment is against the manifest weight of the evidence and contrary to law. In our opinion, the judgment is not only against the manifest weight of the evidence, but we do not find evidence of any probative value to sustain the judgment. For these reasons, we find the judgment of the Probate Court is contrary to law and should be reversed. Entry may be presented, reversing the judgment of the Probate Court, and entering judgment in conformity to this opinion.

Judgment accordingly.

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


source: Caselaw Access Project

author: Hildebrant, J.

license: Public Domain

text:
    Rarrick, Appellee, v. Browne et al., Appellants.
    (No. 6729
    Decided February 24, 1947.)

      Messrs. Cowell, Fletcher & Wiethe, for appellee.

      Mr. Charles E. Dornette and Mr. Henry E. Beebe, for appellants.
   Hildebrant, J.

On trial before a jury in the Municipal Court of Cincinnati, at the suit of a guest against an innkeeper, for the value of personal property stolen during the night while the guest was, asleep in the room, the plaintiff testified to his registering and being assigned and conducted to a room, creating the relationship of guest and innkeeper, and as to the items and valúe of the property which was the subject of the unexplained theft.

At the conclusion of plaintiff’s testimony, which was all the evidence offered, the court directed the jury to return a verdict for the defendants. On appeal to the Common Pleas Court,, the judgment was reversed and the cause remanded. And it is that action by the Common Pleas Court which is here on appeal on questions of law. *

In 22 Ohio Jurisprudence, 15, it is stated:

‘ ‘ At common law an innkeeper is liable for the goods of his guest lost in the inn, unless the loss has been caused- by the act of God, public enemy, or fault of the owner. Except as modified by statute, this rule prevails in Ohio. The liability is not dependent upon the existence of negligence. The innkeeper is liable for the loss of wearing apparel left in the room by a guest. Likewise, the innkeeper is liable for the loss of baggage from the room of a guest. The mere fact that the guest retains the key to his room, from which the goods are stolen, does not relieve the innkeeper of liability.”

In Palace Hotel Co. v. Medart, 87 Ohio St., 130, 100 N. E., 317, Ann. Cas. 1913E, 860, the syllabus states:

“In a suit by a guest against an innkeeper for damages for the loss of ordinary wearing apparel and persona] effects left by him in his room, the key thereof having been delivered into the custody of the innkeeper, it is not necessary as a part of his case in chief to show that such loss was occasioned by the fault or negligence of the innkeeper. Proof of such loss by the guest makes out a prima facie case of liability upon the part of the innkeeper, and Section 4427a, Revised Statutes, now Section 5983, General Code, does not change the rule of the common law in this regard.”

The case of Garman-Loomis Co. v. Ryan, 12 Ohio App., 224, follows the above case.

In 28 American J urisprudence, 640, it is stated:

“In actions against innkeepers for the loss of or injury to the property of a guest, the general rule is that a prima facie case of liability is'established by proof of the existence of the relatioh of innkeeper and guest and of the fact of loss or injury, and the burden then rests upon the proprietor to exonerate himself from liability, either by bringing himself within an exception to or limitation upon • the rule imposing liability or by showing his freedom from fault. * * * Statutes making the liability of an innkeeper dependent upon compliance with certain requirements by the guest have not changed the rule that the burden of proving contributory negligence is on the innkeeper.”

Further, at page 594, it is said:

“The provisions of the statutes under consideration must be strictly complied with by the proprietor in order to relieve himself of his common-law liability, and the burden of proof is on the innkeeper to show such compliance.” '

The rule is stated in Gillett v. Waldorf Hotel Co., 136 Wash., 615, 241 P., 14, to be:

“We have also held that, when the relation of innkeeper and guest and the loss of goods have been established, the true rule is that the inn-keeper is prima facie liable, and the burden is on him to show such facts as will exonerate him.” Citing Watt v. Kilbury, 53 Wash., 446, at 448, 102 P., 403.

In Watt v. Kilbury, 53 Wash., 446, at 448, it is held:

“When relation of inn-keeper and guest and the loss of goods have been established, the true rule is that the inn-keeper is prima facie liable, and the burden is on him to show such facts as will exonerate him. ’ ’

Swanner v. Conner Hotel Co., 205 Mo. App., 329, 224 S. W., 123, held an innkeeper liable for loss of property of guest, though such property had not been entrusted to the care of the innkeeper, unless the loss was-caused by the guest’s own negligence, an act of God, or the public enemy, and at page 332 quoted from Batterson v. Vogel, 10 Mo. App., 235, as follows:

“The case of the inn-keeper is this: He is prima facie liable for the loss of his guest. He may show that he was diligent and that the guest was negligent; but, though ever so diligent, he is liable for the loss of goods of his guest not arising from the negligence of the guest, the act of God; or public enemies.”

Concerning theft, 28 American Jurisprudence, 615, states:

“Under the rule of absolute liability, an inn-keeper is responsible for any loss by theft, unless committed by one for whose acts the guest himself is responsible, and it is quite generally agreed that for all thefts from within or unexplained, whether committed by guests, Even some courts which adhere generally to the prima servants, or strangers, the inn-keeper is answerable. facie rule, and repudiate the general rule that an innkeeper is an insurer of the safety of goods brought by a guest, apply a rule very nearly that of absolute liability, in the case of a loss by theft, and refuse to exonerate him, although it is an unavoidable accident and not due to any fault or negligence of his. Under any theory of liability, when goods are lost by theft and the person who stole them is unknown, the law imposes liability on the inn-keeper, and the presumption of innocence does not apply. Negligence will be imputed to him if the loss is not to be ascribed to any other known cause.”

It is, therefore, clear that on undisputed evidence showing the relationship of guest and innkeeper and testimony of loss of personal property by unexplained ■theft, a prima facie case was made for plaintiff, and the burden of exoneration — statutory or otherwise— rested on the defendants.

The judgment of the Court of Common Pleas is, therefore, affirmed, and the cause remanded for further proceedings according to law.

Judgment affirmed.

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


author: Doyle, P. J.

text:
    The State, ex rel. Niven, Appellee, v. Tomblin, Appellant.
    (No. 3916
    Decided April 23, 1948.)

      Mr. Charles C. Jenney, for appellee.

      Messrs. Moyer & Benedict, for appellant.
   Doyle, P. J.

Charles Tomblin, the appellant, was “adjudged * * # the reputed father” of a child born out of wedlock, under authority of Section 12123, General Code (119 Ohio Laws, 731), in the Municipal Court jof the city of Barberton. The court then (1) awarded a fixed amount to the mother for her “support, maintenance and expenses caused by pregnancy and childbirth”; (2) ordered that “the said Charles Tomblin pay to the complainant, the sum of four dollars a week for the support and maintenance of the said child up to 18 years of age * * *.”

Several months after the order was entered in the court’s journal, the complainant moved in writing for an increased amount for the support of her child — to wit, “from the sum of four dollars a week to seven dollars a week.”

To this motion the adjudged father answered as follows: (1) “that he has fully complied with all of the provisions” of the court’s order; (2) “that he is not in arrears with any payment whatsoever”; and (3) that the court was “without jurisdiction to modify, alter or in any manner change its order heretofore made * * V’

On the issues so made, a trial was held, and at the conclusion thereof the court ordered payment of $7 a week for the support and maintenance of the child.

The appeal to this court is from this last order, and challenges the right of the court to increase in amount a previously-made award. Specifically, the appellant charges that “the court was without authority or jurisdiction to amend its order of June 30, 1947,' which provided for the support of said minor child; the court having changed the above judgment on December 6, 1947, by increasing the amount for the support of said child as provided in the order of June 30, from $4 per week to $7 per week.”

A bill of exceptions has not been filed, and in the absence thereof we indulge the presumption that the trial court had before it sufficient evidence to justify an increase of the former award, if the court had the right in law to make such change. Further, under the pleadings and the record before us, we accept as a fact that the adjudged father was not in arrear, and that he had fully complied with the court’s first order.

It may be generally stated that, under the common law, a reputed father was under no legal duty to sup.port his illegitimate child. Early in the development of the jurisprudence of this state, the Legislature rejeeted the common-law doctrine and imposed a liability upon the .putative father to ‘ ‘ maintain ’ ’ his bastard child, apparently upon the theory of (1) a moral obligation, and (2) a protection for the state against expenses of its maintenance.

In 1923 the Legislature amended the statute (Section 12123, General Code) -and eliminated the previous statutory requirement for maintenance. State, ex rel. Beebe, v. Cowley, 116 Ohio St., 377, 156 N. E., 214. However, this amendment of the Bastardy Act specifically provided that it should not be construed as a bar to the prosecution of the father for failure to support his illegitimate child under the provisions of other statutes.

In 1938 the bastardy statute was again amended, and there was reincorporated in it a provision for the maintenance of the bastard child by the father. And in 1941 a further amendment provided that, in a prosecution (criminal) for nonsupport, “the adjudication that accused is the reputed father of the illegitimate child or children shall be admissible in evidence; and provided further that the acquittal of accused in a bastardy proceeding shall be a bar to any such prosecution. ’ ’

It appears that the Legislature, in so far as it has concerned itself with the prosecution of fathers for .nonsupport of their children, has, with minor exceptions, placed illegitimate children‘“on an even plane” with legitimate children. And it appears further that, when the Legislature, by its amendments of the Bastardy Act (Section 12123, Geneial Code) in 1938 and 194Í, undertook to require the reputed father of the bastard child to pay “a reasonable weekly sum * # # for support and maintenance of said child up to eighteen years of age,” it did not thereby intend to preclude the court from determining from time to time as the years advanced, and upon motion duly made, what would be “a reasonable weekly sum” at the time of the motion.

In the interpretation of statutes empowering courts to order a father to support his legitimate child by timely payments, the courts of this state have applied a sound public policy by holding that “the jurisdiction exercised by the courts in such matters is a continuing jurisdiction to modify such orders after term, if it be found that changed conditions warrant such modification; and such jurisdiction may be exercised although there is no reservation of authority to modify in the decree.” Nash v. Nash, 77 Ohio App., 155, at p. 157, 65 N.E. (2d), 728.

And, see, Corbett v. Corbett, 36 Ohio App., 321, 173 N. E., 316 (affirmed, Corbett v. Corbett, 123 Ohio St., 76, 174 N. E., 10).

This court, in consideration of the statutes now extant and of a wise public policy which looks primarily to the welfare of the child, whether legitimate or illegitimate, is of the opinion that the Barberton Municipal Court, a court of record, had continuing jurisdiction in the instant case to modify its order upon a proper showing, even though there was no reservation of authority to “modify, and even though the reputed father was not in arrears under the previous order.

We find no reasons in the statutes for the applica.tion of a different rule to illegitimate children than is applied to legitimate children, even though the latter’s rights appear under different statutes.

The judgment is affirmed.

Judgment affirmed.

Stevens and Hurd, JJ., concur.

Hurd, P. J., of the Eighth Appellate District, sitting by designation in place of Hunsicker, J.


author: Wiseman. P. J.

text:
    Foureman et al., Appellees, v. Foureman, Appellant.
    (No. 656
    Decided December 10, 1947.)

      Mr. T. A. Billingsley and Mr. Floyd D. Smith, for„ appellees.

      Mr. Walter F. Bhynard, for appellant.
   Wiseman. P. J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Darke county, ordering distribution of the proceeds derived from the sale of a farm on partition. The court, in the order of 'distribution, allowed fees to counsel for the plaintiffs but failed to allow fees to counsel for the defendant.

The record shows that prior to the filing of the order of distribution, the defendant, appellant herein, filed a motion requesting the court to award compensation to counsel for the defendant. The motion was overruled. The entry overruling the motion states -that counsel for defendant proffered testimony which was rejected by the court. The record is silent as to the character of the proffered testimony. Thereupon the defendant filed a motion requesting the court to render a special finding of fact and conclusions of law, which motion was overruled. After the order of distribution was filed, defendant filed a motion for new trial, enumerating nine grounds, which motion was overruled.

The notice of appeal' states in substance that the defendant appeals: Prom the order rejecting defendant’s proffered testimony and overruling defendant’s motion to permit his attorney to participate in the award of attorney fees; from the order dismissing-defendant’s motion requesting a separate finding of fact and conclusions of law; and, from the order allowing attorneys for plaintiffs $3,000 as compensation for legál services.

In his assignments of error the defendant contends that the court erred: In overruling thé motion of defendant to allow counsel for defendant a reasonable portion of the attorney fees allowed; in rejecting the testimony proffered by the defendant; in overruling the defendant’s motion for a separate finding of fact and conclusions of law; in refusing to answer the interrogatory attached, to the motion; in allowing the attorneys for the plaintiffs the sum of $3,000 as fees for services rendered, which fees are claimed to be unreasonable and exorbitant; in failing to tax the costs equitably; and other errors apparent on the face of the record.

The action involved partition of a valuable piece of real estate and the construction of a will. The record is replete with motions, demurrers and amendments of the pleadings. The litigation was protracted and numerous legal questions were raised. An appeal was taken to this court where the contention of the plaintiffs was sustained. A motion to certify was overruled by the Supreme Court. < The record shows that the defendant opposed the partition of the real estate, and at every step of the proceedings interposed some objection, necessitating the expenditure of much time and effort by counsel for all the litigants. After an examination of the record we cannot say that the court abused its discretion in taxing the costs. The testimony proffered on the motion does not appear in the' record. Consequently there is nothing presented for the consideration of this court.

The amount of fees allowed to counsel for service rendered in a partition suit rests within the sound discretion of the court. After considering the nature of the proceedings, the legal questions raised, the difficulties encountered,-the amount of proceeds derived from the sale, and the time and effort expended by counsel this court cannot find that the allowance of $3,000 to counsel for the plaintiffs was unreasonable or excessive.

Did the court commit error in overruling defendant’s motion for a separate finding of,fact and conclusions of law? We do not tliink so. While the provisions of Section 11421-2, General Code, are mandatory in the trial of causes, in our opinon, this section has no application to a motion for the allowance of attorney fees in a partition proceedings wherein the court has personal knowledge of the service rendered by counsel,’ and in the allowance or disallowance of fees to counsel, the court is required to exercise its discretion. Furthermore, the application of this section is limited to situation's where “questions of fact are tried by the court!” In the instant case no question of fact was tried.

The court is not required to answer an interrogatory attached to the motion. We know of no principle of law or statutory requirement which requires the court to do so.

Did the court commit error in. refusing to allow fees to counsel for the defendant for legal services rendered in this proceeding? The allowance of fees to counsel in a partition proceedings is controlled by Section 12050, General Code, which provides:

“Having regard to the interest of the parties, the benefit each may derive from a partition, and according to equity, the court shall tax the costs and expenses which accrue in the action, including reasonable counsel fees, which must be paid to plaintiff’s counsel unless the court awards some part thereof to other counsel for service in the case for the common benefit of all the parties; and execution may issue therefor as in other cases.”

It will be observed that the court is required to allow fees to counsel for the plaintiff, but is not required to allow fees to counsel' for the defendant, “unless the court awards some part thereof to other counsel for service in the case for the common benefit of all the parties.” Before the court, would be warranted in awarding some part of the fees to .counsel for defendant, it would be required to first find that counsel for defendant had rendered service in the case “for the common, benefit of all the parties.” Young v. Stone, 55 Ohio St., 125, 134, 135, 45 N. E., 57. Therefore, an award of counsel fees cannot be allowed for service rendered in the will-construction matter which was adversary in character and in which counsel did not render service “for the common benefit of all the parties.” In determining whether counsel for defendant rendered service for the common benefit of all the parties the court is required to exercise a sound discretion. Hoefner v. Korach, 8 Ohio Law Abs., 443, 32 O. L. R., 293. Unless there is an abuse of discretion, which' we do not find to exist, the judgment of the trial court will not be disturbed.

In most instances counsel for the plaintiff renders all the service required in the conduct of a suit in partition. 'To allow fees to counsel for the defendant would not only tend to reduce the legitimate fees of the attorney for the plaintiff, but, also, would have a tendency to increase the total fees allowed and thereby increase'the burden upon the parties. Edwards v. Whims, 2 N. P. (N. S.), 464, 468, 15 O. D. (N. P.), 57, Sites v. Kohn, 26 N. P. (N. S.), 373.

In the case at bar the record shows that the defendant consistently resisted and opposed the partition of the real estate. It has beén held that a fee for service rendered by counsel in resisting the application for partition cannot properly be allowed. Lowe v. Phillips, 21 Ohio St., 657.

Apparently the trial court did not find that counsel for defendant rendered service “for the common benefit of all the parties” as provided in Section 12050, General Code. The record supports the finding of the trial court.

Finding no error in the record, the judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


text:
    Doolittle, Trustee, Appellant, v. Schumacher et al., Appellees.
    (No. 3927
    Decided March 26, 1948.)

      Messrs. Buckingham, Doolittle c& Burroughs, for appellant.
    No appearance for appellees.
   Doyle, P. J.

Louis Schumacher, of Akron, Ohio, executed a last will and testament, and several years later died.

' In the'instrument he gave most of his assets to Gillum H. Doolittle in trust, with directions to pay “the entire income of all the property * * * to my wife at such convenient intervals as she may desire for and during her natural life.” Upon the death of his wife he directed that the income from one-half of the trust res be paid equally to five surviving children of his deceased brother. He further provided that upon the death of any of them the part of the corpus of the 'trust “upon which the one so deceased would enjoy the income” (i. e., one-tenth part), should pass to the said deceased’s surviving children, if any, ^and, if none, then to named charitable institutions.

He then undertook to dispose of the remaining one-half of the trust res after the death of the beneficiary .of the life interest. In doing so, he gave to his wife’s six bi-others and sisters, in equal proportions, the income therefrom. He provided, however, for a different method of distribution of this one-half of the trust res at the death of these relatives by affinity than he had for his own consanguineous relatives. Inter alia, he provided that upon the death of his wife’s brother Otto, if said Otto was survived by his (Otto’s) son, then “said son shall receive the sum of $5,000, payable at the rate of $1,000 per year # * ®.” He provided similarly for the sons of his wife’s brother Frank. However, he made a different disposition of the trust res upon the death of the other brothers and sisters of his wife. Final disposition of the property apportioned to provide income for Otto and Frank, however, was made in the following provision:

“The portions of said trust fund distributable upon the respective deaths of said Otto * * # and Frank * * * not above disposed of, namely, the remainder of each of the one-twelfth portions of said original trust fund upon which each of them would enjoy the income, after deducting the amount hereinbefore provided for, of five thousand dollars ($5,000) for each of their surviving children, shall also pass to, vest in and bo paid over in equal shares to the children of Antonia Grant-ham (sister-in-law) living at the death of each of said-two life beneficiaries (Otto and Frank) respectively.”'

Louis Schumacher (the testator) died on December-19, 1939; Dora Schumacher (his widow) died on May 7, 1945; Otto, the widow’s brother, died on January-27, 1946; and Ferdinand, the son of Otto, died on September 15, 1946.

It thus appears that Otto, testator’s brother-in-law,, survived his sister, the testator’s wife, by about seven-months. He was entitled to and received the income from one-twelfth of the trust res ($6,500). When Otto-died, he was survived by his son, Ferdinand. Under the terms of the will, Ferdinand was entitled to five thousand dollars, payable at the rate of one thousand dollars a year. The first payment of one thousand dollars was made, but his death eight months after that of his father, stopped, of course, further yearly payments to him.

It is not questioned that, upon the death of Otto, the difference between $6,500 and $5*000, or $1,500, was payable to the surviving children of Antonia Grantham under the provisions of the quoted part of the will shown in the second paragraph of this opinion. The only disputed question for decision isr What disposition shall be made of the four thousand dollars which, in annual installments, would have been received by Ferdinand had he lived? ($6,500 [1/12 of corpus] minus $1,500 [payable to children of' Antonia Grantham] minus $1,000 [paid to Ferdinand before his death] equals $4,000.)

The case is here on appeal on questions of law from the Probate Court of Summit county.

Specifically, the item in the will which presents the instant question is:

“Upon the death of Otto # * *, if he be survived by his son, said son shall receive the sum of $5,000, payable at the rate of $1,000 per year, or as nearly at that rate as 'cash available in the trust fund will permit?’

Under this language, the téstator- required the survivorship of the son Ferdinand as a condition precedent to his right to take the interest specified. The provision created a contingent gift in the fullest sense in which that term is used. The gift is to be found only in the direction to pay under a certain specified •contingency. The words “shall receive” may be construed as meaning “the trustee shall pay” or “I give.”

The contingency attached to the substance of the gift. At the time of the death of the father and the survival of his son, this contingent interest ripened into a vested right to $5,000. The law favors the vesting of legacies as soon as possible, and a contingent legacy vests in the beneficiary, the instant the contingency happens, unless otherwise directed.

After the first payment of $1,000 under the terms of the trust, the son died. The right of his personal representative to receive the entire balance at this time depends on whether the income from the unpaid part was to go to some one other than the legatee of the principal. If so, then the personal representative must await the payments by' installment. If not, then the balance of the legacy is payable immediately. . In the absence of express language of the testator indicating a contrary intent, a gift of the income on the unpaid balance may be implied.

As we read the will, there is no express language employed which would preclude the legal conclusion that the legatee was not only entitled to the installment payments, but that he was also entitled to a gift of the income from the' unpaid balances. This being so, the entire balance of the gift (the legatee having deceased) is now due and payable, if “cash available in the trust fund will permit.” If cash is'not “available,” the amount due will be augmented by the income received on that amount until paid.

The judgment is modified, and, as modified, is affirmed.

Judgment modified and affirmed.

Stevens, J., concurs.

Hun sicker, J., not participating.


author: By the Court.

text:
    Whitmire, Appellant, v. Douglas G. High, Inc., Appellee.
    (No. 6901
    Decided February 9, 1948.)

      Mr. Louis R. Schear, for appellant.

      Mr. Walter K. Sibbald, for appellee.
   By the Court.

The' petition here contained five separately numbered and,stated causes of action for money only, which plaintiff, a licensed real estate salesman employed by defendant, a real estate broker, claimed as commissions due for the sale and listing of real estate, in accordance with an oral contract, of employment.

On trial to a jury, the court withdrew from its consideration causes of action numbered one and five, and the jury returned a general verdict concurred in by nine of their number for the plaintiff for $1,104.

In answer to interrogatories propounded by defendant the jury answered the. amount they found due on each cause of action, numbered, two,-three, and four separately, finding the amount claimed by plaintiff in each instance with the sum of those findings equalling the amount of the general verdict.

In passing on défendant’s motion for a new trial, the court granted the same as to the third cause of action, for the reason that the verdict of the jury thereon was manifestly against the weight of the evidence, and overruled the motion as to the second and fourth causes of action, and entered judgment accordingly.

The notice of appeal on questions of law is from that entry.

The petition herein was filed prior to September 30, 1947, the effective date of amended Section 12223-2, General Code, making the granting of a new trial a final order. Hence, the right of appeal from the ruling of the trial court in the instant case is governed by the law as it éxisted prior to September 30, 1947.

Steiner v. Custer, 137 Ohio St., 448, 31 N. E. (2d), 855, held:

“The granting of a motion for a new trial is not such ,a final order as may be reviewed on appeal, unless it clearly appears that the court granting such motion abused its discretion in so doing.

“The meaning of the term ‘abuse of discretion’ in relation to the granting of a motion for a néw trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court. ’ ’

It is suggested that it was an abuse of discretion on the part of the trial court to grant the motion for new trial as to the third cause of action and overrule it as to causes of action numbered two and four.

In 39 American Jurisprudence, 44, Section 21 et seq., it appears to be the generally accepted view that where there are separate and distinct issues, particularly where there are separate and distinct causes of action, a new trial may be ordered as to one issue and be refused as to others.

Here the interrogatories clearly show the conclusion of the jury as to each cause of action separately, so that a retrial could be confined to any one cause without the necessity of a retrial of the whole case.

We, therefore, conclude the trial court did not abuse its discretion in granting a new trial on the third cause ■of action only. This conclusion is in accord with the modern tendency as shown by Rule 59 (a) of the Federal Rules of Civil Procedure, which, in defining grounds for a new trial,‘provides that a new trial may be granted “to all or any of the parties on all or part of the issues” either in actions tried by jury or actions tried without a jury. 39 American Jurisprudence, 45, note 16.

Under favor of Section 12223-21a, General Code, the appellee filed an assignment of errors herein, and it is suggested that this action is tantamount to a cross-appeal, vesting this court with the jurisdiction and duty of determining the questions raised thereby.

We hold to the contrary and make reference to 1 ‘Some Comments on Changes in Ohio Procedure” in 31 Ohio Opinions, 358, at page 361, where Ross, J., has expressed the view with which this court is in accord.

Finding no, abuse of discretion on the part of the trial court, the order granting a new trial, appealed from, is not a final order, and, for -that reason, the appeal herein is dismissed, and the cause remanded to the Court of Common Pleas for further proceedings according to law.

Appeal dismissed.

Matthews, P. J., Ross and Hildebrant, JJ., concur.


author: Wiseman, P. J.

text:
    Booher, Appellee, v. Lowe et al., Appellants.
    (No. 1925
    Decided April 30, 1947.)

      Mr. Jerome T. Miller, for appellee.

      Mr. Chester J. Graham, for appellants.
   Wiseman, P. J.

This is an appeal from a judgment of the Common Pleas Court of Montgomery county, affirming a judgment of the Municipal Court of the city of Dayton rendered in favor of the plaintiff in a forcible entry and detainer action. ' *

The, defendants, appellants herein, assign six grounds of error which fall into two categories, to wit, first, the judgment is manifestly against-the weight of the evidence, and, second, the judgment is contrary to law.

The evidence shows that the defendants occupied the premises for a period of approximately two years under a month-to-month tenancy at a monthly rental of $18 per month, payable in advance, beginning on the 24th day of each month. The evidence as to payment of rent, including the receipt introduced by stipulation in the Common Pleas Court, shows conclusively that the defendants were usually,- in arrears for the payment of the rent, and that on April 6,1946, the date on which the notice to leave the premises' was given, the rent was paid to March 24, 1946. The action was filed on April 18, 1946, and the trial took place on May 3, 1946. The evidence shows that on April 6th and again on April 22, 1946, defendant Mary R. Lowe sent by mail to the plaintiff money orders, each for $18, for payment of rent. These orders were never cashed and were tendered back to such defóndant on the day of trial.

The trial court held that the defendants were in ■default for the payment of rent at the time the notice to leave the premises was served, that the action was properly brought, and that the plaintiff was entitled to a writ of restitution. The evidence overwhelmingly supports the judgment of the trial court. On appeal that judgment was affirmed by the Common Pleas Court of Montgomery county.

The defendants contend that the trial court was concerned only with the period from March 24 to April 23, 1946; that it found that the rent was not paid for such period; that, because an additional receipt has been produced, which was introduced into the record by stipulation when the matter was pending in the Common Pleas Court, the evidence now shows the rent for such period was paid; and that a reversal should be ordered.

True, the trial court, in its opinion, held that “the court is concerned only over this period ending April 23, 1946, and not over the following month.” However, the trial court made no definite finding as to any prior period of delinquency. Even so, if the, trial court had made a definite finding that the rent was paid up until March 24, 1946, this court would not reverse the trial court, since, after a review of all the evidence, we find that the additional payment, for which a receipt was found after trial, paid the rent to March 24, 1946. On the evidence as the trial court saw it, and as we view it, the plaintiff was entitled to judgment. A reviewing court will not reverse the-judgment of the trial court on the ground the judgment of the trial court was based on the wrong premise, if such judgment is found to be otherwise correct.

The trial court held that the retention of the two money orders for $18 each, for 'a period of less than one month, and the tender back on the day of trial did not operate as an acceptance by implication of law or by estoppel. In Pillot v. Moss, 72 Ohio App., 492, 53 N. E. (2d), 73, it was held:

“No acceptance óf payment of rent is shown where the landlord, without cashing them, holds as evidence,, money orders for such payment.”

In i^he instant case the money orders were held for evidentiary purposes. The retention of such orders was not for an unreasonable length of time. The money orders were tendered back at the trial. Under these facts an acceptance of the money orders in payment of the rent will not be implied. Neither do such-facts work an pstoppel.

As we find no error in the record, the judgment is affirmed.

Judgment affirmed.

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


author: Ross, J.

text:
    Williams, Appellee, v. Martin, Appellant.
    (No. 6964
    Decided April 26, 1948.)

      Messrs. Ginocchio & Ginocchio, for appellee.

      Mr. John L. Under coffer, for appellant.
   Ross, J.

The defendant filed an appeal on questions of law from a judgment of the Common Pleas Court dismissing his appeal on questions of law io that court, from the Municipal Court of Cincinnati.

The plaintiff, appellee herein, seeks to justify the action of the Common Pleas Court in so doing upon the basis (1) that there was in fact no notice of appeal filed as required by law, (2) that, if the notice of appeal'was in proper form, it was not filed in time and (3) that the judgment entered was a consent judgment.

The action was in forcible entry and detainer, which, under the rules of the Municipal Court of Cincinnati, is classified as a “third class” case.

On January 15, 1948, after hearing of evidence, the-court found the defendant guilty as charged, ordered restitution of the premises and rendered judgment for damages in favor of plaintiff in the sum of $45 with costs of $3.84.

On January 23, 1948, a motion for new trial was filed. - On January 28, 1948, the court made an entry overruling the motion for new trial, vacated the order of January 15, 1948, and provided in the entry that “a writ of restitution of the premises is to be issued' as of February 10, 1948, and judgment granted plaintiff in the sum of $53 and costs. ’ ’

On February 10, 1948, a writ of restitution was issued. On February 17, 1948, the court journalized the following:

“The Municipal'Court, Cincinnati, Ohio.

“Francis Marie Williams, Plaintiff, No. 443764.

“v.

“Jos. M. Martin, Defendant.

“Defendant gives notice of appeal of this case to the-Court of Common Pleas on this 17th day of February 1948, on questions of law. Bond is fixed in the amount of $100 — one hundred dollars.

“John Undercoffer,

“Atty. for defendant.

“Approved & filed for journalization “Date 2-17-48

‘ ‘ Brueggeman, Judg’e

“Entered

“Date 2-17-48

“Minute 938.”

(1) No prejudice to plaintiff is shown by the form of the notice of appeal or the manner in which it was handled by the Municipal Court, and it must be considered to have substantially met the requirements of Section 12223-4, General Code. Capital Loan & Savings Co. v. Biery, 134 Ohio St., 333, 16 N. E. (2d), 450.

It is to be noted, however, that the notice failed to mention what judgment was the subject of appeal, as required by Section 12223-5, General Codé. An amendment of the notice was filed in the Common Pleas Court on March 6, 1948, in which amendment the judgment of the.Municipal Court, on January 28, 1948, was designated as the judgment from which appeal was taken.

The notice did not designate a specific judgment which by amendment is sought to be replaced by another. No judgment was specified and in the interests of justice the judgment sought to be reached may be designated in an amendment even in the reviewing court. This position has been taken by a number of reviewing courts. See Kline v. Green, 25 Ohio Law Abs., 240; Couk v. Ocean Accident & Guarantee Corp., Ltd., 138 Ohio St., 110, 33 N. E. (2d), 9; Mosey v. Hiestand, Trustee, 138 Ohio St., 249, 34 N. E. (2d), 210; Jackson v. Jackson, 69 Ohio App., 55, 42 N. E. (2d), 932.

In any event, the notice of appeal was filed for entry immediately after the issuance of the writ of restitution in pursuance to the judgment (January 28,. 1948) designated in the amendment.

It must be determined, therefore, that a notice of ■appeal, substantially conforming to law, was filed.

(2) It is claimed, however, that such notice was not filed in time. The judgment appealed from was •entered on January 28, 1948. It vacated a former judgment, overruled a motion for new trial and provided for a writ of execution on February 10, 1948, which writ was issued pursuant to its terms. The notice of appeal was filed on the twentieth day after such judgment, to wit, on February 17, 1948. It was, therefore, filed in time.

It is true that the judgment contained an order overruling a niotion for new trial. This court has held recently that such an order is a final order in itself, in view of the fact that, under the practice now applicable, such motion includes inherently a motion to vacate the judgment to which it is addressed and is, therefore, a final order. See opinion of this court in McAtee v. Western & Southern Life Ins. Co., ante, 131.

The motion for new trial was filed eight days after the judgment sought to be attacked. It is. claimed that the action being a third class action within the exclusive jurisdiction -of a justice of the peace, the practice peculiarly applicable to that court applies •and the motion should have been filed within three days after the judgment. This ignores the provisions .of Sections 1558-28 and 12223-7, General Code.

The action having been filed after October 11, 1945, the new practice applies and the motion was filed in time. (See Section 11578, General Code, amended, effective October 11, 1945.) There is nothing in the entry now attacked to show it was a consent judgment. If it can be properly shown from the record that the judgment was entered by consent, this may be ground for the affirmance of the judgment (2 Ohio Jurisprudence, 118, Section 88) but it is not ground for dismissing'- the appeal. It will be necessary for the Court of Common Pleas to entertain jurisdiction on appeal in order that it may determine that no error, prejudicial to defendant, appellant herein, has intervened by the entry of such consent judgment.

For these reasons, the judgment of the Court of Common Pleas dismissing the appeal from the Municipal Court of Cincinnati must be reversed, and the case remanded to that court for further proceedings in accordance with law.

Judgment reversed.

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


author: Metcale, J.

text:
    Brawley, Appellant, v. Thomas, Admr., et al., Appellees.
    (No. 493
    Decided December 18, 1947.)

      Messrs. Woolley, Rowland <& Bridgewater and Messrs. Fogle & Fogle, for .appellant.

      Messrs. Jones & Williams and Mr. Foster B. Cornivell, for appellees.
   Metcale, J.

This appeal on questions of law arises out of a proceeding in the Probate Court of Athens county, for the determination of heirship in the estate of Ted H. Wolf, deceased, therein being administered.

The plaintiff, appellant herein, Mable Brawley, filed her petition in that court, captioned “Petition to determine heirship,” under and by virtue of Section 10509-95 et seq., General Code, against P. L. Thomas, ■administrator of the estate of Ted H'. Wolf, deceased, and others, alleging that at the time of the death of the ■decedent he was the lawful husband of the plaintiff, and that she is his surviving spouse and sole heir at law,.

The petition sets forth the inventoried value of the real and personal property in the estate, the appointment of the administrator, the names of the next of kin as given in the application for the appointment, which next of kin as therein set out are made parties defendant, with the statement that they claim interests in the real and personal property by reason thereof.

The prayer of the petition is that the court determine the person or persons entitled to share in the distribution of the estate, the interest therein by them owned and their respective share or shares therein, and for such other orders and relief in the premises as the court may find plaintiff to be entitled.

The defendants answered,. admitting the formal allegations of the petition, but denying generally that the plaintiff is the surviving sppuse and sole heir at law of the decedent.

On the issue as thus joined, trial' was had in the Probate Court resulting in a finding and judgment that plaintiff and decedent were not married, either at common law or otherwise; that plaintiff is not the widow of decedent; and that the heirs at law and next ■of kin of the decedent are the defendants, Christine Wemmer, Hershel Wolf, Nora Coon and Kathryn Allen. The court thereupon proceeded in the judgment to fix the proportions of the estate to which the parties defendants are entitled.

The only question before the trial court was whether the plaintiff, Mable Brawley, was the common-law wife of Ted H. Wolf, the decedent, at the time of his death on September 11,1945.

While all the assignments of error have been carefully examined, and the voluminous record has been xead with the same in mind, it will be necessary in this opinion' to discuss only the ones on which the merits of the appeal depend.

In May 1936, plaintiff, an unmarried woman, went to live in the home of the decedent, an unmarried man, who was then living with his father, a widower, and a bachelor brother in a farm home in Ames township,, Athens county. The father died in September of 1937, and the brother deceased a short time thereafter.

Plaintiff continued to live with decedent, Ted H. 'Wolf, in the farm home until January 1944, when they moved to the village of Amesville in Athens county and both resided in the home of the decedent for a few months when this property was sold by decedent. He then moved into a small house by himself and the plaintiff went to live first in the home of her father and then in what is known as the Morris home. This situation existed with the exception of visits back and forth until decedent’s death.

There will be no attempt here to set forth the testimony and evidence offered. There were oyer 100 witnesses examined in the trial of this case. The testimony of some of the witnesses for plaintiff substantiates in part the necessary elements of a common-law marriage. Many of the defense witnesses testified that plaintiff and the decedent did not have the reputation of being husband and wife in the community where-they lived; others testified that the plaintiff was known as the decedent’s housekeeper; and still others testified as to admissions of the plaintiff that she was not the decedent’s wife but his housekeeper. The record' indicates that during all the time plaintiff was in decedent’s home she retained and used her name of Mable Brawley. This is evidenced by defendants’ documentary exhibits “E” and “I,” one the bank-account of plaintiff and the other the hospital admission card at the time of her hospitalization. The decedent in his business transactions failed to recognize plaintiff as his wife as evidenced by defendants’ exhibit “A,” it being a deed for real property executed by decedent as an “unmarried man.”

While this court readily agrees with counsel for plaintiff that if, as contended by plaintiff, a few days after she entered the Wolf home she and the decedent entered into a common-law marriage, complying with all the necessary elements therefor, then neither nor both could thereafter abrogate or nullify the same before death other than according to law, yet in determining the relationship existing between these parties during all of these years this documentary evidence carries great weight and in the absence of a satisfactory explanation therefor it is most conclusive. Especially is this true in reference to defendants’ exhibit “G” which, because of its importance in view of the whole record and the contention of the defense in this case, we quote:

“Settlement for labor.

“Amesville, Ohio. July 24, 1944.

“Ted H. Wolf is hereby paying Mabel Brawley the sum of seven hundred eighty dollars ($780), the receipt of which is acknowledged by Mabel Brawley, for settlement in full for services rendered for labor to this date, July 24, 1944.

“Witness

“F. L. Thomas

“Ted H. Wolf

“Mable Brawley” '

That exhibit corroborates many of the witnesses who testified that the relationship of plaintiff to the decedent in the community and circle in which they moved was that of housekeeper. Whether any other relationship that may have existed was the honorable institution of marriage, even though by common-law method, the plaintiff was called upon to prove by clear and convincing evidence.

The law which the trials court was called upon to apply to the facts in this case is found reaffirmed in Markley v. Hudson, 143 Ohio St., 163, 54 N. E. (2d), 304, the syllabus of which is:

“1. An agreement to marry in praesenti, made by parties competent to contract, accompanied and followed by cohabitation, as husband and wife, with the result that they are treated and reputed as husband and wife in the community in which they reside, constitutes a common-law marriage.

“2. While such agreement to marry in praesenti must be proved by clear and convincing evidence, it may be established by proof of the acts, declarations and conduct of the parties and their recognized status in the community in which they reside.”

In applying this rule, the following admonition set forth in the case of In re Estate of Redman, 135 Ohio St., 554, 558, 21 N. E. (2d), 659, should be kept in mind:

“So-called common-law marriage contravenes public policy and should not be accorded any favor; indeed, it is quite generally condemned. It is .well settled in Ohio that to establish a common-law marriage, all the essential elements of such a relationship must be shown by clear and convincing evidence. The statutes of Ohio contain definite regulations and requirements and prescribe rigid standards to which applicants for marriage license must conform. While these statutory provisions do not of themselves specifically prohibit marriage without the formalities enumerated by those provisions, such informal marriages are.seldom recognized and are held valid by courts only to protect the rights of innocent persons.”

When the evidence in the instant 'case is analyzed, under the rules hereinabove set forth, it cannot be said that the plaintiff established a common-law marriage with the decedent by clear and convincing evidence. Therefore, if no error intervened prejudicial to the plaintiff, the trial court was correct in its finding and judgment.

In addition to the weight, sufficiency and admissibility of the evidence, it is earnestly contended by the plaintiff that the trial court committed prejudicial error, first, in denying plaintiff the right of trial by jury and, second, in refusing plaintiff the right to testify to facts establishing her common-law marriage' with decedent.

Earty in this case, and before trial, plaintiff filed a written request for a trial by jury which was denied by the trial court and exceptions saved. Counsel for plaintiff are frank in stating that they have been unable to find conclusive authority one way or the other, touching on this claimed error. Neither have counsel for the defendants been able to discover any authoritative pronouncement thereon. All counsel, however, have endeavored to aid this court by giving it the benefit of their reasoning from certain definite premises, which is appreciated. It is plaintiff’s contention that she by her petition sought an order determining her right to decedent’s property, basing the same upon her claim that she is decedent’s surviving spouse; that the trial court adjudicated and determined the aliquot ownership of the parties to this action in the property of the decedent; and that by such judgment plaintiff’s right to recover the property was denied. Therefore, plaintiff claims the right to trial by jury by reason of ■Section 11379, General Code, wherein it is provided, among other things, that “issues of fact arising in .actions for the recovery of money only,- or specific real or personal property,-shall be tried by a jury, unless a jury trial be waived., or a reference be ordered

That the court in the instant case under the pleadings had power to make a finding relative to the interest each of the nest of kin had in the decedent’s estate in addition to determining the nest of kin is clear from the statutes authorizing the determination of heirship and has been so held by the Court of Appeal^ of the First Appellate District, in the case of Speidel, Admr., v. Schatter, 73 Ohio App., 141, 55 N. E. (2d), 346.

The pertinent part of Section 10509-95, General Code, so far as the same applies to the instant case, reads:

“Whenever property passes by the laws of intestate succession, * * * proceedings may be had in the Probate Court to determine the persons entitled to such property. ”

Section 10509-96, General Code, provides for the filing of a petition, the contents thereof and the parties ■defendant. The hearing thereon is provided for in Section 10509-99, General Code, which reads:

“At the time assigned for the hearing, or at any time to which said hearing may be adjourned, the court may hear proof taken, by commission, or by witnesses produced in open court, of the facts set forth in the petition, and shall, if satisfied from the evidence, find and adjudge who are or were the heirs or nest of kin of the decedent, and entitled by law of this state to inherit the estate of the deceased * * °

The following section makes provision for other interested parties to file the petition in lieu of the administrator or executor which procedure was followed in the instant case. The last section of the act to determine heirship, being Section 10509-101, General Code, authorizes the fiduciary to make final distribution of an estate in accordance with the finding and order of the court.

Sections 10509-95, General Code, to and including Section 10509-101, General Code, supra, setting forth the proceedings to determine heirship, were first enacted effective January 1, 1932, with some minor .amendments, effective September 2, 1935.

The purpose and intent of “The Determination of Heirship Act” is to make certain by court order the persons entitled to the estate of a decedent. Prior to its enactment there was nothing to indicate the heirs or next of kin except the application for appointment; if the information contained therein was incomplete or inaccurate the administrator or fiduciary made distribution at his peril. Under the law as it now stands the Probate Court has the power to determine the persons entitled to the estate and when this is done the one having the responsibility for the final distribution, when the finding and order of the court is followed, is discharged together with his surety from liability arising from such determined interest, and the title to any property passing thereby is free from such determined interest.

This is a wholesome act and one which many other states have had for quite sometime. Its purpose is not the recovery of money or specific real or personal property. Of course, the recovery of money or specific real or personal property may be the ultimate result in the final distribution of the estate to those found entitled to participate therein, but that is the shadow and not the substance of the act.

Therefore in the opinion of this court, Section 11379, General Code, hereinabove set out and providing for a jury trial in certain instances, has no application h^re.

The basic jurisdiction of the Probate Court is found in Section 8, Article IV of the Constitution of Ohio, wherein, among other things, it clothes that court with jurisdiction in probate and testamentary matters, the appointment of administrators and the settlement of their accounts and provides for such other jurisdiction as may be given by law.

Under that power, the Legislature has enacted Section 105.01-53, General Code, specifically granting and separately stating and numbering those matters of which the Probate Court has jurisdiction and stating that such jurisdiction shall be exclusive unless otherwise provided by law. The third provision authorizes the court to direct and control the conduct, and settle the accounts, of executors and administrators, and order the distribution of estates. The last paragraph of that section clothes the Probate Court with plenary power at law and in equity fully to dispose of any, matter properly before the court, unless the power is expressly otherwise limited or denied by statute.

There can be no question that the Probate Court had exclusive jurisdiction in the instant case. Therefore, what provision, if any, is made for a jury trial under such circumstances? In In re Estate of Blue, 67 Ohio App., 37, 32 N. E. (2d), 499, the court, in determining whether a party was entitled to a jury trial growing out of exceptions to the schedule of debts and the final account, called attention to the fact that under the practice prevailing prior to the creation of probate courts persons interested in the estate of a decedent either as creditors or heirs had no right to trial by a jury of their claims against or interest in such estate. The court commented further that, under the constitutional provision conferring jurisdiction on the Probate Court, no such right exists except as it may be conferred by statute. In the case of Brown, Exr., v. Reed, 56 Ohio St., 264, 46 N. E., 982, the court, on page 270, in discussing whether a party in an action involving an exception to an executor’s account had been denied his constitutional right to the intervention of a jury, said:

“But the Constitution preserves the right to trial, by jury in those cases only where it existed previously to its adoption. Both before and since the adoption of the Constitution it has been usual to call executors and other trustees to account in courts having equity or probate jurisdiction, and without the intervention of a jury to determine any question affecting the state of their accounts.”

This court is unable to discern any substantial difference in the right accruing to a litigant in the Probate Court in a matter involving the accounting from that of the determination of heirship wherein the important question is the status of the claimant relative to decedent’s estate. Neither the Constitution requiring nor the Legislature providing for a jury trial under such circumstances as here exists, we are forced to the conclusion that plaintiff was not entitled to a jury trial, and that Section 10501-32, General Code, found under ‘Procedure in Probate Court,’ is applicable. That section reads:

“Unless otherwise provided by law, all questions of fact shall be determined by the probate judge, unless, in his discretion, he orders them to be tried by a jury, or referred, as provided herein.”

Plaintiff insists that it was prejudicial error on the part of the court in not permitting the plaintiff to testify as to facts establishing her common-law marriage to the decedent, Ted H. Wolf. Plaintiff was called as a witness and was permitted to testify to certain matters both before and after the death of the decedent as well as to testify in rebuttal. In the main, plaintiff’s testimony relative to the marriage contract, although proffered, was rejected by the court on objection being made by counsel for the defense that plaintiff was incompetent to testify by virtue of that part of Section 11495, General Code, where provision is made that a party shall not testify when the adverse party is an administrator or claims or defends as an heir of a deceased person. The written opinion of the trial court sets forth and analyzes in detail the proffered testimony which had been ruled out as inadmissible.

The trial court in rejecting that testimony relied on the case of In Re Estate of Goettge, 32 Ohio Law Abs., 620, in the Probate Court of Tuscawaras' -county, wherein it was held that under Section 11495, General Code, a woman who claims to be the common-law wife of a deceased person, and as such entitled to property owned by him, is incompetent to testify to any facts tending to establish the marriage relation between her and the deceased in a proceeding where such alleged wife is a party.

In the 1943 Cumulative Supplement to 26 to 43 Ohio Jurisprudence, 4397, in commenting that in a proceeding for appointment as administrator by an alleged common-law widow, petitioner may not testify as to the marriage by reason of Section 11495, General Code, as against the objection of an heir at law of decedent and citing the Goettge case, supra, the statement is made that that case was affirmed by the Court of Appeals, December 11, 1940. However, we have been unable to find the Court of Appeals opinion if it was reported and therefore cannot ascertain whether this particular point was settled, because in that case, as in the instant case, the trial court after ruling out the testimony of the alleged common-law widow stated in substance that this proffered testimony had been considered but without effect.

In Catlett v. Chestnut, Exr., 107 Fla., 498, 146 So., 241, 91 A. L. R., 212, paragraph 17 of the A. L. R. head-notes states:

“A woman claiming a widow’s share in a decedent’s estate is disqualified by interest to testify as to facts establishing ■ her marriage to the decedent, under a statute excluding interested persons from testifying in regard to any transaction with a person since deceased as against his personal representative or persons claiming through him unless testimony as to the transaction is given by the adverse party.”

In paragraph 18 of the same headnotes, it is said:

“An alleged common-law marriage with a person since deceased is a ‘transaction,’ within a statute,” such as here under consideration.

The Supreme Court of Kansas, in the case of Shorten v. Judd, 56 Kan., 43, 42 P., 337, 54 Am. St. Rep., 587, reversed the judgment of the lower court, wherein a mother who was united in interest with her son attempted to establish a common-law marriage and therefore his legitimacy, because the mother had been allowed to testify as to the common-law contract even though she later in the case renounced any interest in the estate, the court saying on page 47:

“It would not do to allow her [the alleged common law widow] to experiment with the double claim in behalf of herself and her son until the close of the evi•dence,' and then make her incompetent testimony competent for her son by withdrawing her own claim. On account of this error the judgment must be reversed; but, as Mrs. Mott has now ■ disclaimed any. interest, she will be a competent witness as to the alleged marriage on the next trial.” See, also, paragraph two of the syllabus.

It is interesting to note on page 46 of the foregoing case, that it was stated by Martin, C. J.:

“It is virtually conceded in the briefs of defendant in error John Judd that Sadie Runkle' Mott [the alleged common law widow] was incompetent, under Section 322 of the Code [similar to Section 11495 of the Ohio Code] to testify as to the transaction or communication with William Judd [the alleged common law husband] relied on as proof of the marriage; but it is claimed that the error was cured by the renunciation made on her behalf.”

Under a statute similar to that of Ohio, the Supreme Court of Illinois, in the case of In re Estate of Maher, 210 Ill., 160, 71 N. E., 438, held in the third paragraph of the syllabus:

. “A woman whose claim as being the lawful widow is denied by others having or asserting interests, as heirs, in the estate of her alleged husband, is incompetent to testify to the fact of her marriage in a proceeding in which she seeks, as distributee, a portion of all his personal property, until her status as a widow has been established by the adjudication of a competent court.”

In discussing that point, in the body of the opinion, ‘the court said on pages 169, 170:

‘ ‘ The person who in this cause seeks to establish the fact that she was the wife of the deceased at the time of his death, if she testify, is testifying against the heirs of the deceased, and to do that she is incompetent. The theory of the statute is, that'as the mouth of the deceased is closed by death, the mouth of the living who asserts a claim against the dead shall be closed by law.”

The court then pointed out the danger of permitting such testimony and the power that would accrue to one claiming such marital status with a decedent, and said that it is precisely such an evil, that the Legislature intended to prevent by the enactment of the statute.

The majority rule throughout the various jurisdictions is set forth in 28 R. C. L., 514, as follows:

“It has been held in a number of cases that where a woman claims to have been the wife of a deceased person, and as such to be entitled to property owned by him, she is incompetent to testify to* any facts tending to establish the existence of the marriage relation between her and the deceased.” (Emphasis supplied.)

This is an adverse proceeding and it is our conclusion that the plaintiff, Mable Brawley, was not a competent witness to testify, over objection, as to facts tending to establish her alleged common-law marriage to the decedent, Ted H. Wolf, by virtue of Section 11495, General Code, the adverse parties defending not only as administrator but as heirs at law, and none of the exceptions enumerated in that section applying.

No innocent person is involved in this case, its sole purpose is to establish the right of inheritance on the part of plaintiff, and public policy as well as the law demands that she be held to the strict rules of evidence and that degree of proof necessary to establish her right. Plaintiff has failed to do this by evidence that is clear and convincing, and, there being no error prejudicial to her, the judgment must be affirmed.

Judgment affirmed.

Gillen, P. J., and McCurdy, J., concur.


author: Conn, J. Carpenter, J.,

text:
    In re Roma.
    (No. 4287
    Decided March 8, 1948.)

      Messrs. Nicholas & Lambert, for appellant petitioner.

      Mr. Joel 8. Rhinefort, prosecuting attorney, and Mrs. Geraldine F. Macelwane, contra.
   Conn, J.

An application seeking a writ of habeas corpus was filed in the Court of Common Pleas by petitioner Sam Roma. The petitioner had been taken into custody by the sheriff of Lucas county, Ohio, at the request of the police department of Berwyn, Illinois, a suburb of Chicago, awaiting the Governor’s warrant of extradition which was received two days later and served on petitioner. At the hearing, the warrant of the Governor of Ohio was introduced in evidence, from which it appears that this warrant was issued upon the requisition of the Governor of Illinois for the extradition of the petitioner, an alleged fugitive from justice of that state, charged “with the crime of child and wife abandonment (nonsupport).” The warrant recites also that a “copy of affidavit, complaint & warrant, duly authenticated” are attached to the requisition.

It is alleged in the warrant of the police magistrate of the city of Berwyn, Cook county, Illinois, which was also introduced in evidence, that on July. 29, 1947, Sam Roma committed the offense of “neglect and refusal to provide for wife and child in violation of Sec. 24, Div. 1, of Chap. 68 of the. Revised Statutes of Illinois. ’ ’ The warrant recites also “that said defendant, Sam Roma, did without any reasonable cause, desert, neglect and refuse to provide for the support of his lawful wedded wife, Lois Roma, said wife being in destitute and necessitous circumstances, and that said defendant, without lawful excuse, does neglect and refuse to provide for the support of his child, Lawrence Roma, age 6 weeks, in destitute and necessitous circumstances.”

It appeared further from the evidence received at the hearing that when the petitioner was discharged from the service he went to the home of his parents, who then resided in Tomah, .Wisconsin, where he remained a week .or two and then went to Berwyn, Illinois, and there obtained board and room in the home of Lois K. Carter, where he lived a number of months. While petitioner was in Berwyn, his mother wrote a letter to him and also to Lois K. Carter, inviting them to Tomah to visit petitioner’s parents and “for a vacation. ’ ’ In one week after they had arrived in Tomah, to wit, on August 5, 1946, the petitioner and Lois K. Carter were married. Petitioner and his wife lived in the home of his parents until September '13, 1946, when the wife returned to her home in Berwyn. After five days, she returned to Tomah, where she remained two or three days, living with her husband in a hotel, and thereupon again returned alone to her home in Berwyn. Subsequently petitioner’s wife corresponded with him in an effort to induce him to. return to her, but he refused to answer her letters.

The petitioner never lived with his wife in Illinois and was never in Illinois after his marriage except on the occasion of his trip from Wisconsin to Toledo, when he stopped at Berwyn to obtain the assistance of the police in an effort to recover from his wife his radio and ring, but when told he would have to go through court procedure, he immediately left and came to Ohio. He did not visit his wife on that occasion.

At the conclusion of the hearing, the writ was denied, and from the judgment of the trial court this appeal is taken on questions of law.

The errors relied on are that “the Illinois court has-no jurisdiction or authority over Sam Roma”: that petitioner was not a resident of Illinois and never resided in Illinois after his marriage; that no crime was committed in Illinois; and that petitioner was 'not a fugitive from justice.

Under the provisions of Section 2, Article IV of the Constitution of the United States and the implementing federal statute (Section 662, Title 18, U. S. Code), the person sought to he extradited from the asylum' state must be a fugitive from justice and, if not, there' is no authority under the Constitution and statutes of the United States for extradition. Hyatt v. New York, 188 U. S., 691, 47 L. Ed., 657, 23 S. Ct., 456; Innes v. Tobin, 240 U. S., 127, 60 L. Ed., 562, 36 S. Ct., 290.

However, under the provisions of the Uniform Criminal Extradition Act, the transfer of persons accused of crime may be accomplished even though the accused is not a fugitive from justice within the meaning of the federal Constitution. English v. Matowitz, 148 Ohio St., 39, 72 N. E. (2d), 898; 9 Uniform Laws Annotated, 170, 171.

The cases cited by petitioner and relied on by him antedate the enactment in this state of the Uniform' Criminal Extradition Act (Sections 109-1 to 109-32, General Code, inclusive, August 20, 1937). The statutes then in force (Sections 109 to 115, inclusive, General Code), relative to the extradition of fugitives from justice, were expressly repealed by that enactment (117 Ohio Laws, 588). The repealed sections of the Code provided, among other things, that the party accused must be a fugitive from justice charged with a crime in the demanding state from whence he fled, and that the demand must be made in good faith. 18 Ohio Jurisprudence, 941, Sections 14 and 15; Wilcox v. Nolze, 34 Ohio St., 520; In re Williams, 5 Ohio App., 55, 25 C. C. (N. S.), 249, 27 C. D., 385; Ex parte Maloney, 29 C. D., 357, 27 C. C, (N. S.), 529; 8 O. L. J., 266; State of Illinois, ex rel. McNichols, v. Pease, 207 U. S., 100, 52 L. Ed., 121, 28 S. Ct., 58.

The uniform act has been adopted in at least thirty-one states, including Ohio and Illinois, and it has effected materia] procedural changes in extradition cases in those states. However, in some instances, the act before adoption had been amended and" its provisions in some respects were materially modified. This may account for the lack of uniformity in the decided cases.

Section 3 of the act (Section 109-3, General Code), which is analogous to former Section 110, General Code, provides:

' “No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing alleging, except in cases arising under section 6 (Section 109-6, General Code), that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon * * *.”

Section 6 of the act (Section 109-6, General Code) provides:

“The Governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in section 3 (Section 109-3, General Code) with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, and the provisions of this act not otherwise inconsistent, shall apply-to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.”

Under the provisions of Section 109-6, General Code, it appears that the Governor of this state is given permissive authority to surrender any person, on demand of the executive authority of another state, who has committed an act in Ohio, or in a third state, and which act intentionally results in a crime in the demanding state.

It was held in Culbertson v. Sweeney, Sheriff, 70 Ohio App., 344, 44 N. E. (2d), 807, that the provisions of section 3 of the act (Section 109-3, General Code) come “clearly within the reserved sovereign powers of the State.” See, also, 8 O. L. J., 266-274; 151 A. L. R., 239.

The evidence disclosed that the petitioner married Lois K. Carter on August 5, 1946, and that the warrant issued by the police magistrate of the city of Berwyn, Illinois, charged the petitioner with the offense of neglect to provide support for his wife, Lois Roma, and “that said defendant, without lawful excuse, does neglect and refuse to provide for the support of his child, Lawrence Roma, age 6 weeks, in destitute and necessitous circumstances” in violation of the statute (Sec. 24, Div. 1, of Chap. 68, R. S. of Illinois).

It appears from the evidence also that the requisition made by the Governor of Illinois upon the Governor of Ohio was in writing; that such requisition was accompanied by a copy of the affidavit made before the magistrate, together with a copy of the warrant which was issued thereon; that the requisition of the Governor of Illinois and the warrant of the Governor of Ohio each conforms with the provisions of section 3 of the act (Section 109-3, General Code) and the provisions of section 6 (Section 109-6, General Code) wherein the Governor of Ohio is authorized to surrender a person to a demanding state “even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.”

Under section 20 of the act (Section 109-20, General Code), the guilt or innocence of the accused may not be inquired into by tbe Governor “except as it may be involved in identifying the person held as the person charged with the crime.” State v. Gregg, 68 Ohio App., 397, 398, 40 N. E. (2d), 167; Taylor v. Smith (1938), 21 3 Ind., 640, 13 N. E. (2d), 954.

Furthermore, upon the issuance of the Governor’s warrant, a presumption of its legality arises, and it is prima facie evidence that the proceedings had prior to its issuance were in all respects regular and in conformity with the laws of this state. 18 Ohio Jurisprudence, 953, Section 27; Maloney v. Sheriff of Hamilton County, 98 Ohio St., 463, 121 N. E., 646.

In the instant case, the prima facie showing of legality of the Governor’s warrant has not been overcome by the evidence offered in behalf of petitioner, •and the judgment of the trial court is affirmed.

Judgment affirmed.

■Carpenter and Fess, JJ., concur.

Carpenter, J.,

concurring. I cannot agree that the •crime charged against Sam Roma is of the type of those mentioned in Section 109-6, General Code.

Apparently one phase of his defense, if and when he •comes to make one, will be that he and his wife were not legally domiciled in the state of Illinois. As shown by the warrant, a copy of which is in evidence,- it appears that the venue is laid “in said county (Cook) •and state (Illinois).” On the trial, this will be a fact issue to be proven. Under Section 109-20, General Code, “the guilt or innocence of the accused” is not to “be inquired into by the Governor or in any proceeding after the demand for extradition” except as to the identity of the accused. There is no dispute in this respect. The construction of the Uniform Criminal Extradition Act given it in Taylor v. Smith, 213 Ind., 640, 13 N. E. (2d), 954, expresses my understanding of the scope of that act.


author: Matthews, P. J.

text:
    Richter, Appellee, v. The First National Bank of Cincinnati, Trustee, Appellant.
    (No. 6869
    Decided December 1, 1947.)

      Mr. George Luedeke, for appellee.

      Mr. Wm. J. Rielly, for appellant.
   Matthews, P. J.

This is an appeal from a judgment for the plaintiff in an action to recover a commission on a'contract between the plaintiff, a real estate broker, and the owner of the real estate that was sold. The issues of fact were submitted without a jury and the court found the issues of both fact and law in favor of the plaintiff.

The plaintiff had had some arrangement with Katharine Hamilton Banning, now deceased, in relation to acting as her agent in procuring a purchaser or purchasers for her real estate located in the western portion of the city of Cincinnati.

Under Mrs. Banning’s will the defendant became trustee of this real estate and in that capacity sent the plaintiff a letter dated June 14, 1939, of which the following is a copy:

“June 14,1939.

“Mr. H. E. Richter,

‘ ‘ Mercantile. Library Building,

“Cincinnati, Ohio.

“Dear Mr. Richter:

“We have talked to Mrs. Loretta Conroy Martin, our co-executor in the administration of the estate of Katharine Hamilton Banning, regarding the arrangement which you had with Mrs. Banning in connection with her west end industrial property.

“We understand that just prior to the time of Mrs. Banning’s death, she had asked you to take charge of her property and place ‘For Sale’ signs on same and that you were to see that no rubbish was dumped on the property and you were also to keep squatters off. Any inquiries on the property were to be submitted to you and any sales were to be made through you with the understanding that if there were no sales, you were to receive no compensation for your services. The signs were to be paid for by Mrs. Banning.

“We know that you have had a great deal of experience in handling the sort of property which Mrs. Banning has in the west end and therefore would be pleased to have you place the necessary ‘For Sale’ signs on the property and continue the arrangement which you had with Mrs. Banning, which we have outlined above.

“Very truly yours,

“Wells Woodley,

“Assistant Trust Officer.”

The evidence discloses that this real estate consisting of several acres was unimproved and unenclosed, excepting that in the southwest corner the testatrix’s husband, from whom she acquired the title, had conducted a lumber business, and, for that purpose, had constructed some sheds and had built some kind of a fence along three sides of the portion so used, leaving the fourth side open. Shortly after the quoted letter was delivered to the plaintiff a plat of the land was also delivered to him. This lumber site was embraced within the land shown on this plat. The plat showed that the land had been subdivided into lots and that there were intersecting dedicated streets, but showed no improvements of any kind on the property. Shortly before Air. Banning’s death, he had sold the lumber and other personal property to Mr. Hart and given him a lease on the lumber site. The record does not disclose the terms of that lease.

One of the principal contentions was that it was not the intention to include the lumber site within the contract. However, the evidence was conflicting on that subject, and the trial court found that it was included,, and we cannot say that such finding is manifestly against the weight of the evidence.

There is evidence that the plaintiff had no occasion to remove any rubbish or do anything with reference-to keeping squatters off the property. He did, however, place “For Sale” signs at various places on the-property, but none directly on the lumber site. He testified that no sign was placed on the lumber site because it would not have been visible from that point.

The evidence shows that the plaintiff proceeded during the years to make sales of portions of the land' until finally the only portion that was left was that embraced within the lumber site that- Mr. Banning-had leased to Mr. Hart. The record does not show the dates of these other sales.

The evidence also shows that the plaintiff endeavored ' to sell the lumber site and submitted at least two bids therefor. The defendant considered' these bids and rejected them without informing the plaintiff that he was not authorized to find a purchaser therefor.

On December 30, 1944, the defendant without any prior notice to the plaintiff terminating his authority, sold the lumber site to Mr. Hart.

The judgment in this case is for the amount of the-commission on that sum with interest.

The evidence also shows that this property is located in that portion of Cincinnati dedicated to industrial uses only, that the sale of such property is difficult and slow and that it would be reasonable to anticipate that it might take five or six years to find a purchaser.

In addition to the contention that the property in question was not embraced within the terms of the-•contract, which we have already disposed of, there remains these further contentions by the defendant:

(1) That as the plaintiff was not the procuring •cause of this sale, he is not entitled to compensation. That would be a correct conclusion if we assumed, as the defendant has done, that there was nothing in the contract excluding the defendant from the right to •deprive the plaintiff of a commission by exercising its right and power to sell. But we do not so construe the contract. The language of the contract is: “Any inquiries on the property were to be submitted to you •and any sales were to be made through you.” That language can mean only that the plaintiff was given ■an authority to sell, which excluded the defendant from depriving the plaintiff of a commission by negotiating a sale either directly or through any other intermediary.

(2) It is urged that as the offer or contract was without limit as to time it was revocable at the will of the defendant. But no notice of revocation of any sort was ever given. The sale was made at a time when the relationship was pending, unless it had ceased to exist by reason of lapse of time.

It is a well established principle that where no .time of termination is expressed, its duration continues for a reasonable time, terminable upon giving of reasonable notice. In 12 American Jurisprudence, 860, it is said:

“Where the parties to a contract express no period for its duration and none can be implied from the nature of the contract or from the circumstances surrounding them, the only reasonable intention that can be imputed to the parties is that the contract may be terminated by either on giving reasonable notice •of his intention to the other.”

In the light of the evidence that property of this sort moved slowly on the market and frequently took much-longer than usual for a sale to be effected, and in further view of the fact that no notice of the termination of the plaintiff’s authority had been given, we are of the opinion that the trial court was justified in concluding that the sale was made at a time when the plaintiff was entitled to a commission, no matter by whom the sale was made.

(3) Finally, it is urged that the plaintiff had a bare-authority, not supported by any consideration.

We do not stop to analyze these promises to determine whether they were sufficiently definite as to-create a contract of mutual promises. Whether consideration existed upon the making of the promises-would be important if an action for breach of one or the other had been instituted before the parties had acted upon the promises. That is not the ease here. The evidence in this case is that the plaintiff had started and almost completed performance before any question was raised as to the obligation to permit him to complete performance, and thereby earn his commission. Such part performance in reliance upon defendant’s promise supplied the consideration if none-had theretofore existed. Using other nomenclature, the part performance created a promissory estoppel.

In 17 Corpus Juris Secundum, 428, it is said:

“It has been said that every sufficient consideration,, although not technically an estoppel, contains the substantial elements of an estoppel in pais, since one man by his promise induces another to change his-situation, and to repudiate his promise would enable him to perpetrate a fraud. * # #, but a promise which the promisor should reasonably expqct to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”

In 1 Restatement of Contracts, Section 90, the rule is set forth that:

“A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”

Speaking of promissory estoppel, it is said in 12 American Jurisprudence, 605:

“According to the latter doctrine, a promise is binding if the promisee has suffered some detriment in reliance thereon even though such detriment was not requested as consideration.”

The plaintiff entered upon the campaign to sell this entire tract as a whole or in parcels, relying on the defendant’s authorization so to do and its promise that it would deliver all inquiries to him and that all sales should be made by him. Whether the inquiry was prompted by the plaintiff’s action, or was induced in any other way, if a sale resulted the defendant promised that the plaintiff should have a commission on the sale. The right to such commission on sales uninduced by him was a substantial part of the inducement causing plaintiff to undertake to sell this industrial property. To now limit his commission to such sales only as he initiated and carried to fulfillment would operate as an injustice to him.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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