text:
    AS TO WHETHER. THE MAIN ISSUE WAS SUBMITTED TO THE JURY.
    [Circuit Court of Lucas County.]
    The Detwiler Real Estate & Investment Company v. Edward V. E. Rausch.
    Decided, October, 1906.

      Commissions — For Sale of Beal Estate — Agency—Issue as to, for the Jury — Charge of Court — notion for a Neto Trial — Bill of Exceptions.

    Where a motion for a new trial includes the ground that the verdict was contrary to law, it includes error of the court in the charge to the jury, and a bill of exceptions prepared within forty days from the overruling of the motion is prepared in time.
    Parker, J.; ITaynes, J., and Wildman, J., concur.
    Heard on error.
   In this case the action in the court below was brought by Edward Y. E. Rausch against the Detwiler Real Estate & Investment Company to recover commissions for selling real estate. The defendant filed an answer in which, after admitting that it was a corporation, and that its principal office was in the city of Toledo, Ohio, denied each and every other allegation contained in the plaintiff’s petition. The case went to trial to a jury, and there was a finding in favor of the plaintiff for the full amount he claimed and judgment was entered upon the verdict-.

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

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

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

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

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

“It is therefore evident that the only controversy between the parties to this action is as to the amount of compensation that should be awarded the plaintiff. It is conceded that the usual and customary commission for procuring purchasers of real estate in this city is 5 per cent, on the first $1,000, and 21/2 per cent, on the balance of .the purchase price. The burden is upon the plaintiff to prove by a preponderance of the evidence the fair and reasonable value of the sei-vices rendered in procuring a purchaser for. said real estate. If you find from a preponderance of the evidence .that there was no agreement as to the amount of compensation to be allowed the plaintiff for procuring a purchaser for said real estate, then the plaintiff is entitled to recover the reasonable value of the services rendered by him in that behalf. If you find that there was no agreement as to the amount of compensation to be paid the plaintiff, then for the p-urpose of determining the fair and reasonable value of the services by him performed in procuring a purchaser for said real estate, you ■ may take into consideration the amount of compensation usually and customarily paid in this city for such services, though that amount is not to be taken as conclusive. If, however, you find that there was an agreement as to the amount of compensation to be paid the plaintiff, that agreement is controlling.”

Further along the court instructs the jury:

“Having determined the compensation to which the plaintiff is entitled, you will then compute thereon and add thereto interest-at the rate of 6 per cent, per annum from the 16th day of February, 1906, to the first day of this term of court, to wit, April 2, 1906, and return the same with your verdict.”

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

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

It is said by counsel for defendant in error that this question is not properly presented' to this court, because the motion for a new trial does not specifically state as a ground that the court erred in the charge, and the bill of exceptions was not prepared and filed within forty days of the time that this error in the charge was committed, that the time was not protracted and carried forward, as it might have been by filing a motion for a new trial on that ground, giving the court another opportunity to rule upon it, and thereby making the time for the bill of exceptions forty days from the time of the ruling upon the motion. It has been held that though it is not necessary that an objection and exception to the charge to the jury by the trial court be included in a motion for a new trial, when it is in fact included in such motion, the time in which the bill of exceptions may be filed begins to run from the overruling of the motion, instead of 'from the time of the committing of the error in the charge; -whereas the time will begin to run at the time of such error in ease it is stated as a ground for a new trial in the motion therefor. The decisions bearing upon that will be found in the case of Weaver v. Railroad Company, 55 Ohio State, 491, and in R. R. Co. v. Wright, 54 Ohio St., 181.

The motion for a new trial in this case contains the following grounds: (1) That the verdict given by the jury was contrary to the weight of the evidence; (2) That the verdict given by the jury was contrary to law; (3) That the court erred in overruling defendant’s motion to take the case from the jury and direct a verdict for defendant, and in excluding testimony by defendant and admitting testimony objected to by defendant.

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

“The sixth division of Section 5305, prescribing that a new trial may be had on the ground ‘that the verdict, report or decision is not sustained by sufficient evidence or is contrary to law.’ * * * is broad and comprehensive. It would seem to include any error of law committed by the trial court in the course of the trial prejudicial to the losing 'party. ’ ’

F. E. Galkins and L. W. Story, for plaintiff in error.

E. B. Merrick and J. G. Jones, for defendant in error.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    YEA AND NAY VOTES IN COUNCIL ON STREET IMPROVEMENTS.
    Circuit Court of Lucas County.
    William V. McMaken v. Birchard A. Hayes et al.
    Decided, March 9, 1907.

      Municipal Corporations — Sufficiency of Record — As to Yea and Nay Vote in Council — Benefits—To Abutting Property from Street Improvement — Determination of, is in Council Rather than the Coxirts —Assessable Frontage where Three Lois form a Flat-iron Shaped Plat.

    1. Where the record discloses that at the meeting of the city council, at which there were proceedings with reference to a street im- • provement and the assessment therefor, certain members of council were present just prior to the taking of the vote, and does not disclose that any of the members left the room before voting, and it is definitely stated that the particular resolution and ordinance was passed by a certain number of votes being “yeas,” and the number of “yeas” is the same as the number of members previously recorded as present, there is a substantial record of compliance with the statutory provisions requiring the vote of the council for street improvements to be by “yeas” and “nays,” although the court does not approve of the form of the record.
    2. Whether or not abutting property has been benefited by a street improvement is not to be determined alone by the market value of the property after the improvement has been made, as compared with its value before; but the real question is whether there will be any potential benefits, and the determination thereof is within the discretion of council rather than of the courts.
    3. Where three lots held by different owners form a flat-iron or wedge-shaped plot, bounded on three sides by public streets, the assessments for improving the adjoining streets should be levied on each lot separately, although all three form a single parcel and are used at the time for a common purpose; and such assessments should be based on the shorter frontage of each lot.
    B. A. Ilayes, for defendants,
    cited and commented upon the following authorities; Toledo v. Sheill, 53 Ohio St., 447; Walsh v. Baron, 61 Ohio St., 15; Walsh v. Sims, 65 Ohio St., 211; Dayton v. Bauman, 66 Ohio St., 379; Campbell v. Cincinnati, 49 Ohio St., 463; Thatcher v. Toledo, 19 C. C., 311; Streckert v. East Saginaw, 22 Mich., 104; Blair v. Cary, 2 C. C. — N. S., 25 ; Board of Education v. Best, 52 Ohio St., 138.
    Wiudman, J.; Haynes, J., and Parker, J., concur.
   This is an action brought by the treasurer to collect certain assessments for paving Fulton and Floyd streets in this city, and is defended by Birchard A. Hayes, as executor, et al upon the grounds:

(1) . That the assessments and all proceedings upon which they are based are entirely invalid by reason of the alleged fact that statutory requirements as to the taking of a vote by “yeas and nays” in the passage of certain resolutions and ordinances were not complied with.

(2) . That assuming the validity of the proceedings for the construction of the pavements and the assessments for the costs thereof, the basis of the assessments was wrong in that too much frontage was charged against the lots assessed.

(3) . That property derived no benefit whatever from the paving of Fulton street, so that any assessment for such paving was improper.

The most important question, but the one which was not perhaps so much dwelt upon either in oral argument or in briefs, is this: Whether the ordinance and the resolutions upon which the assessment was based were properly passed.

The proceedings of the counsel show in each instance at the beginning of the session, just what councilmen were present. It is not stated that a call of the roll was made, but is alleged in each instance that a certain number of the councilmen, and the requisite number for the passage of such resolution or ordinance, voted “yea,” the names of the persons so voting not being specifically given in the statement of the vote. I have had the stenographer transcribe from his notes the evidence upon this subject as to each of these meetings, as shown by the journal of the board of councilmen, and from the transcript handed me I take by. way of illustration one of the meetings and the record thereof.

From page 455, Yol. Q of the journal, it appears that a resolution to improve Floyd street from Ashland avenue to Fulton street by paving, etc., was adopted, seventeen persons voting “yea,” or, as stated in the words of the record, “yeas, seventeen.” It appears that there were present at the session, with regard to which I have just read, which was on May 12, 1890, councilmen, whose names are given, to the number of seventeen; one of the total membership of the council was absent. The names of these councilmen are given as present at the convening of the meeting. The record does not show whether any of the members who were present at that time left the room prior to the vote. It does not disclose that any other member of the council came in from the time of the convening of the council until the time the vote was taken.

I will not take time to read from the transcript of the various meetings. It is enough to say as to all of them that the record discloses the names of the persons who were present at the opening of the sessions, and. what persons came in, or what persons departed during the session; and, although the names of the persons voting “yea” at the time of the claimed adoption of each resolution or ordinance are not. given, still the number voting “yea” in each instance coincides with the number stated in the earlier part of the record to have been present. It is insisted that this is not sufficient; that the statute requires the call of the roll and the anouncement by each member of his vote. That the statute so requires is unquestionably true. The roll should be called and each member should anonunce his vote. As has been stated in the opinion in a case in our Supreme Court Beports, and has also been very forcefully asserted in a decision from another state cited to us, the object of the law is to place each member of the council upon his individual responsibility, and also to inform the public how the member votes. It is the influence upon the mind .of each member, caused by the knowledge that the public will be informed as to how he votes, that is the inducement- to the requirement that he shall make public announcement of his vote upon the passage of each resolution or ordinance of the character such as we have here; that is, an ordinance of a permanent or general nature,' or upon suspensions of rules so as to permit the ordinance to be read three times and passed at one meeting.

There is a case very close to the case at bar cited by counsel for defendants: Steckert v. East Saginaw, 22 Mich., 104. I will not stop to read it. There is much of the language in the opinion of Judge Cooley which perhaps might fully sustain the contention of counsel for defendants, and if it were the only case bearing upon this question which we have been able to find, we should perhaps be very greatly influenced by it; but there' are other adjudications which we have had occasion to examine, and I will make reference to some of them in order that we may, if possible, ascertain the general current of authority upon the question of the sufficiency or insufficiency of such a record.

The case of Barr v. Village of Auburn, 89 Ill., 361, holds that where the journal of a board of trustees, six in number, of a village incorporated under Eevised Statutes, 1874, Chapter 24, showed that only one member, naming him, was absent from the meeting of the board at which a certain resolution was passed, and contained this entry — “On motion of” (one of the members) “the following ordinance” (the one in question) “was unanimously adopted” — the showing of the journal was sufficient upon the question of the proper passage of the ordinance under Section 41 of said act, which provided that the “yeas and nays” shall be taken upon the passage of all ordinances; that the same shall be ’entered upon the journal of the board, and that the concurrence of a majority of all the members elected in the city council shall be necessary to the passage of any such ordinance.

The statute there is not essentially different from our own in the section relied upon by counsel for defendants.

The case of Preston v. Cedar Rapids, 95 Iowa, 73, holds that where the only provision regulating the voting on the passage of an ordinance by the council of a city under a charter is a rule, adopted by the city, that “All votes taken on the adoption of ordinances shall be taken by the ‘yeas and nays,’ ” it is sufficient for the record to show that all the aldermen voted for the ordinance.

In the ease of Downing v. Miltonvale, 36 Kan., 740, with reference to a statute which provided that “All ordinances of the city shall be read and considered by sections at a public meeting of the council, and the vote on their final passage shall be taken by ‘yeas and nays,’ which shall be entered on the journal by the clerk,” it was held that where the journal shows the full vote adopting the ordinance as a whole on its final passage, it will be presumed that it was read and adopted by sections. See also Brophy v. Hyatt, 10 Colo., 223.

It might- be interesting to read more in detail from these various cases, but we have concluded, although we do not approve of the practice which has been adopted, or, at least, was followed at one time in this city, in the recording of such votes as this, that there has not been such a departure from the law as, under the circumstances ■'of this case, would justify a holding that the entire proceedings with reference to these assessments are invalid.

We think that, where the record discloses the fact as to each session of council which is under investigation that certain named members were present, and it does not appear that those members or any of them departed from the session during the intervening time between its opening and the taking of the vote, or where it is indicated just which ones did depart, and where the record discloses, as here, not simply that the particular resolution or the particular ordinance was carried by a certain number of votes, but where it is definitely stated upon each occasion that there were so many “yeas,” indicating that there must have been a taking of the vote by “yeas and nays” as to each individual member, so as to enable the chairman or other person counting the vote to determine just how many voted for the resolution or ordinance, it is to be presumed that the persons whose names are given and whose number would equal the number said to have voted “yea” are the same persons who did so vote. Our judgment then is, that these* proceedings are not invalid for the reason suggested by counsel for defendants.

Much difficulty has been elimated from our consideration of the case by the concessions of counsel for the plaintiff as to the invalidity of some of the assessments, with regard to which I need not go into detail — counsel have agreed as to those; but we are left with the inquiry whether too much frontage has been assessed as to certain of these lots, and also whether any benefit accrued to some of them by the construction of the Fulton street pavement.

Taking this latter matter first, it is urged by counsel for defendants that from the time that the Fulton street pavement' was constructed the property has remained in the possession and ownership of the defendants, and that the pavement has become out of repair and substantially useless, perhaps, so that the market value of the property is not enhanced by it. The question is not, however, whether the market value is at present greater by reason of the pavement than it was before the pavement was constructed, nor whether the pavement is of present use to any of this property. The question is whether at the time the pavement was constructed it was substantially beneficial to the properties, and we are not sufficiently apprised that the judgment of the council was at fault in this respect to justify a holding that the properties were not at that time benefited. For aught that appears, although no sales have been made of those lots or either of them, it might have been done. The market value may have been enhanced, or the pavement may have been useful in some other respects. The assessments seem to be pretty heavy upon these lots, and it is entirely possible that the properties are burdened far beyond the amount of any benefits received from the pavements, but this is so largely a matter of discretion with the council, a matter of judgment for them to exercise, that we do not feel justified in interfering with it.

It is also urged, as to the Fulton street pavement, that the improvements upon two of these lots, the three lots involved here being Nos.. 14, 15 and 16, consist of a residence fronting on Ashland avenue, and it is claimed that with that building there is no very convenient or practicable way of improving the parts of the lots that abut on Fulton street, so as to make access to Fulton street therefrom particularly desirable or essential to the use of the properties. The three lots and their surroundings may be described succinctly as follows: They lie within an angle formed by the intersection of Fulton street and Ashland avenue, north of said intersection, and almost exactly at this intersection Floyd street crosses, so as to cut off or pass along the southerly end of one of the three lots. The combined property is in a sort of'wedge or flatiron shape, lot 14 being the northerly lot of the three, 15 the middle one and 16 the southerly one, lots 14 and 15 extending from Ashland avenue to Fulton street, and lot 16 abutting on Ashland avenue and Fulton and Floyd streets, having a frontage on Floyd street of 32.1 feet. On Fulton street all the lots have longer lines than on Ashland avenue.

Referring again, before leaving the matter, to the contention that has been made that the property as it is improved by a structure on lots 14 and 15 derives no great benefit from the paving of Fulton street, we think that it may justly be said that it is not altogether the present, use that is made of the property, but its potential use that fixes the market value of property, and that such use is to be taken into account by the persons assessing the benefits. To what extent the property as a whole may be enhanced in value, if at all, by reason of the Fulton street pavement we are unable to say, but that it may have been potentially benefited by the pavement, we think, is altogether probable, or, at least, not improbable. With the present residence on lots 14 and 15, it may not be desirable to build shops or business buildings of any kind on the parts of lots 14 and 15 abutting on Fulton street, but possibly either at the present time or some future time it might be practicable to do so to the advantage of the properties. We dismiss, then, this question as to whether'or not the properties have been benefited by the Fulton street pavement with the conclusion that we can find no just ground for interfering in this respect with the jurisdiction and action of the municipal authorities.

Another contention made by counsel for the defendants is, that the city’s estimate of the frontage assessed is wrong. It appears that lots 14 and 15 have each a frontage, if we call it such, on Fulton street, of fifty-six feet, and on Ashland avenue of fifty feet. The lots strike Ashland -avenue at right angles so that the frontage is shorter on that avenue than on Fulton street. The same thing is true as to lot 16, which has a frontage on Ashland avenue of ninety-nine feet and on Fulton street of 129.34 feet. It is conceded, I believe, by counsel for plaintiff, that as to 14 and 15 the Ashland avenue frontage should be taken, and that the assessment, which has been upon the basis of fifty-six feet, is .too great. We think that counsel are entirely right in this concession, and that it is one that should be made. It is the conclusion at which we should have arrived as to these two lots, had the concession not been made.

As to lot 16, it is claimed now by counsel for plaintiff that the frontage on Ashland avenue of ninety-nine feet should be taken instead of 32.1 feet on Floyd street. In the ease of Toledo v. Sheill, 53 Ohio St., 447, it was held, with reference to a corner lot, that the frontage to be assessed should' presumptively be that on the shorter line. We have here, as to lot 16, not simply a lot abutting on two streets, but we have one abutting on three. We have no doubt that the principle of the decision applies, and our judgment is, that the frontage contended for by counsel for defendants is the correct one; that is, 32.1 feet. It is urged by counsel for plaintiff that these three lots are substantially one property. There is but one improvement upon them, and lot 16 is little more than a lawn or dooryard, it is said, appurtenant to the residence property on lots 14 and 15. It is said that a walk leading from the entrance to the house on lots 14 and 15, angles across a part of lot 16, so that the three lots should be taken together as one residence property, and logically be assessed upon the Ashland avenue length of front. We think, however, that this contention of counsel for plaintiff can not be sustained. It happens at t'he present time that no especial use is apparently made of lot 16 other than that stated, but, as in the other case, we are to consider not simply the present, but the future, uses that may be made of the property The principle is just as applicable in favor of the defendants as it is against them. And it is to be remembered, as shown by the evidence, that the titles to the properties were, at the time of the assessments, in different people, lots 14 and Í5 being owned by Mrs. Birchard Hayes, and lot 16 by the late Rutherford B. Hayes.

O. W. Nelson, for plaintiff.

B. A. Hayes, for defendants.

Our conclusion of the whole matter is, that the assessment should stand with the modifications which I have indicated: that lots 14 and 15 should be assessed each upon the basis of fifty feet front and lot 16 upon the basis of 32.1 feet. I believe that this disposes of all the questions that were presented. The decree of the court will be accordingly entered.


text:
    ACTION ON BOND OF BUILDING ASSOCIATION ATTORNEY.
    Circuit Court of Hamilton County.'
    Edward Dienst et al v. The Fischmann Loan & Building Co.
    Decided, June 22, 1907.

      Bond — Of Building Association Attorney — Action on, for Negligence in Examining Tille — Jurisdiction Where One Obligor can not be Served —Subrogation—Estoppel—Laches.

    A building association through the negligence, of its attorney loaned $1,000 to one holding a defective title to the property upon which he gave a mortgage to secure the loan. The mortgagor died. The proceeds of the loan could not be traced to his creditors, but were probably used by the widow in satisfaction of her allowance of $1,500 for the first year’s support of herself and minor children. The attorney moved out of the jurisdiction and in the present suit on his bond service could not be obtained upon him. Held:

    1. In an action on a bond which is in the nature of a joint obligation, the fact that one of the obligors could not be served with summons because not within the jurisdiction of the court does not prevent the taking oí judgment against obligors who are within the jurisdiction.

      2. The building association was without remedy on its mortgage by way of subrogation against the general creditors of the mortgagor or the first year’s allowance to the widow.
    3. The attorney having knowledge of the mistake which he had made, notice to him or his bondsmen of the loss the building association had sustained was not necessary, and laches or estoppel can not be pleaded in their behalf.
    Smith, J.; Swing, P! J., and Giffen, J., concur.
   Upon an examination of the testimony in this case, and the finding of facts and conclusions of law of the trial court, we are of opinion that the record establishes the negligence of Edward Dienst in not reporting to the Fischmann Loan & Building Co. the true state of the.title of the property on which it made its loan on Blue Rock street. As an attorney at law he held himself out as capable of examining titles to real estate in this county, and the omission on his part to report the correct status of the property under the administration of the probate court is an omission for which he can not be excused. This being so, can his bondemen be relieved from payment of the loss to the building association ?

1st. Because the court had no jurisdiction to enter judgment against the bondemen for the reason that the principal, Dienst, was not served with a summons.

2d. Because the building association should have resorted to all of its remedies on its mortgage by way of subrogation against the general creditors of John J.'Holbrook, and the $1,500 set-off by the appraisers for the widow’s allowance.

3d. Because the building association is estopped by reason of laches.

As to the first contention, it is clear that the bond, being a joint obligation, suit could be maintained and judgment rendered against such obligors as were found within the. jurisdiction of the court where suit was brought, notwithstanding that some other joint obligor was without the jurisdiction, and could not be served with .summons.

G. G. Wilson, Boyce c6 Boyd and ill. C. Slides, for plaintiff in error.

E. A. Flafner and Boberlson c6 Buchwallcr, contra.

As to the question of subrogation, no part of the $1,000 loaned by the building association was traced to any one or more o f the •general creditors; this loan, together with all income from the estate of John J. Holbrook, was intermingled by Catherine Holbrook in one general account. The amount set off by the appraisers, $1,500, the widow’s year’s allowance, could not be obtained under the doctrine of subrogation. The evidence shows that the testator, John J. Holbrook, gave Catherine Holbrook by will all his real and personal property, and in doing this she received every asset of every kind belonging to the estate, and there can be no doubt but that this sum was used by her for her support and that of her minor children.

We do not think the building association is guilty of laches. Notice to Dienst or his bondemen of the lo*s to the building association was not necessary. Dienst himself knew of the mistake he had made in the examination of.the title, and so stated when he later examined another lot for a second loan. It was his negligence that caused the loss, and it was his duty and that of his bondsmen in the first instance to protect themselves, if possible, by perhaps paying off the mortgage to the association, and then pursuing their remedy by way of subrogation, if such-a remedy existed.

Judgment affirmed.


text:
    ERROR. IN DISMISSING ACTION WITHOUT PREJUDICE.
    Circuit Court of Lucas County.
    Klink v. Toledo Railways & Light Co.
    Decided, June 8, 1907.

      Dismissal — Court Without Power to Dismiss Without Prejudice, When —Error to Strike Material Averments from Pleading — Redundant Matter — Negligence—Where Passenger was Swept from. Running Board by Car on Parallel Track.

    1. Where a petition still states a cause of action against the defendant after the striking out of the redundant and improper matter, the court has no power to dismiss the action without prejudice in the absence of any pleading traversing the averments left in the petition.
    2. It is prejudicial error for a court in an action for damages, growing out of the negligence of a street railway company in operating cars over tracks so close together as to endanger the safety of passengers standing on the running board, to strike from the petition language that is material and a proper averment of the cause of action.
    3. But it is not prejudicial error to strike from a petition matter that sufficiently appears in another part of the petition.
    Wildman, J.; Haynes, J., and Parker, J., concur.
    Error to Lucas Common Pleas Court.
   This is a proceeding in error, brought to reverse the judgment of the court of common pleas. It is a personal injury case. The plaintiff filed successive petitions, the last one being designated the “fourth amended petition,” from which, on motion of the defendant, the court struck several passages, as redundant or improper pleading. Thereupon, as shown by the journal entry, plaintiff not desiring to avail himself of leave given to amend, or file additional pleadings, the action was dismissed by the court, without prejudice.

The petition alleges error both in the striking of these matters from the petition and the dismissal of the action. So far as the record discloses, the plaintiff below — who is plaintiff in error here — was objecting as strenuously to the dismissal of the case as he was to the prior ruling of the court on the motion to strike out. The journal entry shows an exception to both matters, and it is to be noted, that the dismissal without prejudice is by the court, and not under the provisions of the statute available to a party who, under certain circumstances, may before final submission of the action himself dismiss without prejudice.

We have carefully examined this fourth amended petition and our conclusion is, that after the striking out of the several matters the pleading still stated a cause of action against the defendant. This being, so, it follows as a corollary that the court had no power to dismiss the action in the absence of any pleading by the defendant traversing the averments left in the petition. Some notion seems to have been entertained by counsel that, in order to maintain his position in court, it would be necessary for the plaintiff to make some amendment of the petition omitting the objectionable- clauses or passages, and that, if the court granted him leave to amend, and he failed to avail himself of such leave, the court might then dismiss the action just as the court might do it after sustaining a demurrer to a pleading. The section of the code under which the court acted in striking this matter from the pleadings is Revised Statutes,. 5087, which provides:

“If redundant, irrelevant, or scurrilous matter be inserted in a pleading, it may be stricken, out on the motion of the party prejudiced thereby; and obscene words may be stricken from a pleading on the motion or a party, or by the court of its own motion. ’ ’

It is not like a requirement by a court that a party shall make his pleading definite and certain; but the order is self-operating, and in the case at bar it will be noted that the motion which was filed was, not that the plaintiff be required to amend the fourth amended petition by omitting- therefrom or striking out the passages assumed to be redundant or otherwise objectionable, but the 'motion was, as to each passage, that the court strike such passage from the amended petition, and in the journal entry it is said that—

. ‘ ‘ The portions of said fourth amended petition in each of said paragraphs in said motion set forth are hereby stricken from said fourth amended petition.”

Our judgment is, that no amendment or further pleading was necessary to preserve the plaintiff’s standing in court.

We think, then, that the court erred in the dismissal of the action after the striking of matters from the pleading which did not so rob it of its vitality as a pleading as to make it inefficient to obtain judgment upon it upon default.

The plaintiff in error claims also that the court-erred in the striking of these several allegations from the petition. The court had previously stricken certain matters from the third amended petition, after which action the fourth amended petition was filed. The court overruled the motion of defendant as to some of its claims, but as to others, granted it; and we think as to some of the passages stricken from the fourth amended petition, the court erred.

The plaintiff’s claim Is based upon an asserted negligence of the defendant company in permitting the proximity of two of its tracks in the city upon which cars were permitted to pass one another so closely as to endanger the lives of persons or passengers standing upon the so-called running board extending along the sides of the car, used for the purpose of getting upon and off the car. The plaintiff alleges that he had stepped upon the running board of one of these cars, on the left hand side of the car, and, before he had time to reach a seat, another ear approached rapidly from the opposite direction, and he was pushed off and severely injured. He alleges various kinds of negligence on the part of the company and makes certain allegations calculated to'relieve himself from the imputation of contributory negligence. One of the passages stricken out by the court reads as follows:

“Plaintiff says that he did not know or observe that the defendant had a double track in said Front street upon which to run .its cars.” * * *

And again:

‘ ‘ There being no rail nor other guard upon said left-hand side of said car to prevent plaintiff from so boarding said ear or warn him there was any danger in so doing. ’ ’

As to the language of both these passages, we think that the court’s action was not prejudicial; indeed, we are inclined to think that, as to a part of it, it was redundant, being otherwise expressed in another part of the pleading.

O. S. Brumbach and T. F. Connell, for plaintiff in error.

Smith c& Baker, for defendant in error.

The court also struck out this language:

"And so it was, that plaintiff was compelled to walk along said running board, while said car was in motion, to reach a seat inside. ’ ’

This sufficiently appears in another part of the pleading and we think that the action of the court in striking it out was not prejudicial.

I now come to -the language stricken out by the court which does seem to us material and matter of proper averment and as to which we think that the action of the court in striking it from the pleading was prejudicial error. I will read the language for the guidance of the court below in such subsequent proceedings as may be had:

"Plaintiff further alleges that the said double track that defendant laid and operated in-Front street, at and along the locality where plaintiff was struck and injured, was wrongfully, carelessly and negligently constructed and maintained by defendant, as it well knew, but plaintiff did not know, with such narrow space between the two tracks that there was danger of a passenger standing on the running board of one car being struck by another car operated in the opposite direction.
"Plaintiff further .says that on the day he was injured, and fór a long time prior thereto, the defendant was negligently operating cars along its line of double track in said Front street (including the one so boarded by plaintiff), of such great and unusual widths as to endanger the safety of- its passengers who might be standing upon the running board of its ears, all of which was well known to defendant but not known to plaintiff when he boarded said car.
"Plaintiff further says the defendant wrongfully, carelessly and negligently failed'to have said running board on the left side of the car which plaintiff so boarded turned up or folded against the side of the ear, as was customary under the circumstances, so as not to invite and receive passengers on said side. ’ ’ * ® *

We find no other errors in the record; but for those errors to which I have invited attention, the judgment of the court of common pleas is reversed, and the cause remanded with direction to reinstate the case upon the docket for such other proceedings cis may be proper.


text:
    PAYMENT UNDER A BUILDING CONTRACT FROM WHICH THERE WERE DEVIATIONS.
    [Circuit Court of Hamilton County.]
    The Moores Lime Co., v. The National Chemical Co., et al.
    Decided, June 15, 1907.

      Building Contract — Modification of, by Mutual Agreement — Owners to Pay what the Worlc was Reasonably Worth — Extent to which the Contract Controls and to which the Contractors are Entitled to their Quantum Meruit — Pleading—Evidence—Failure of Proof under Section 5296 Relating to Variance.

    The changes from the building contract, involved in this case, made by consent of the parties thereto, were not of such a nature as to abrogate the contract and permit a recovery of what the entire ' work was reasonably worth; on the contrary, it is a case where the estimate should not be excluded, but payment should be made under the contract as far as it can be traced, and for anything beyond it the contractors are entitled to their quantum meruit.

    Gieebn, J.; Swing, J., and Smith, J., concur.
   The plaintiff in its petition avers that the defendants, the National Chemical Co. and the firm of Houstler & Fox "entered into various written and verbal contracts and agreements with each other, by which the defendants, Houstler & Fox, agreed to do and cause to be done certain work and labor and to furnish certain materials in and about the erection of certain buildings for the use and occupancy of the defendant, the National Chemical Co., in their business and the said National Chemical Co. agreed to pay said Houstler & Fox therefor at prices stipulated in said contracts and agreements”; that said Houstler & Fox have done everything on their part to be done under said contracts and agreements; that a large sum is due thereon to said Houstler & Fox; that it holds two orders in the sum of $1,557.45 drawn by the said Houstler & Fox upon the said National Chemical Co., which the chemical company refuses to pay; and prays for an accounting between the said chemical company and said Houstler & Fox, and that said chemical company be ordered to pay the plaintiff the amount of said orders out of any balance found due to Houstler & Fox.

The defendants, IToustler & Pox, by answer admit the allegations of the petition.

The defendant chemical company admits that it entered into contracts with IToustler & Pox to do certain work and to furnish certain materials in and about the erection of certain buildings, and agreed to pay said IToustler & Pox therefor certain stipulated prices, but denies that IToustler & Fox have done everything on their part to be performed under said contract, or that there remains due to said IToustler & Fox a large sum of money or any sum of money, and joins in the prayer of the plaintiff for an accounting.

The cause was referred to Morison R. Waite for the trial of both the issues of law and fact arising therein, and said referee was ordered to report his findings and decision to the court of common pleas.

Trial was had before the referee, the evidence reported in full, and his conclusions of fact and law stated separately, showing a balance due from the National Chemical Co. to IToustler & Fox of $1,438.60, with interest from July 16, 1903, which amount the plaintiff is entitled to recover on its orders aforesaid.

This report was confirmed by the court of common pleas and judgment rendered for the plaintiff. The cause comes into this court on appeal by the chemical company and is submitted upon the report of the referee, including the evidence heard by him. The chief contention arises upon the following finding made by the referee:

“After the making of said contract of October 14, 1902, for the work of the refining house, and before commencing said work and afterwards, the said contract was by mutual agreement of the parties thereto materially modified with respect to the execution of the concrete work on said refining house, and it was agreed by the parties that the said Chemical Co. should pay for the work on said building what it was reasonably worth. Said work was reasonably worth $8 per yard for the first and second stories and $9 per yard for the third story measured in the wall. Said concrete work in said refining house measured in the wall in the first and second stories amounted to 453 yards and in the third story 346 yards. ’ ’

It is manifest, from the present state of the pleadings, ad- ■ mitting that the work was to be done at a stipulated price, that the claim is unproved in its general scope and meaning by evidence of an agreement to pay what the work was reasonably worth, which should be deemed a failure of proof within the meaning of Section 5296, Revised Statutes.

The contract of October 14, 1902, provided that IToustler & Fox should receive $5 per cubic yard for the concrete work and the specifications which were made a part of the contract provided that the concrete should be one part cement, three parts sand and four parts broken stone or clean gravel; all materials to be furnished by the contractor. The material modificaiton of the contract consisted in changing the mixture to one part of cement and six parts of sand and gravel. The proof shows that the change was made by direction of the chemical company; that it made a better wall, and cost the contractors more money than a mixture of one to seven of sand and gravel and still more than a mixture of one to seven of sand and broken stone. Jt is contended, however, by the chemical company that the specifications gave it the option of either broken stone or gravel, but we think not, as this provision was made for the benefit of the contractors and that the choice of material could be exercised by them alone.

The other modifications of the .contract, such as mixing the materials in a machine instead of by hand on a board platform, are of minor importance, and the question is whether the change of mixture was such a deviation from the contract as would abrogate it and permit a recovery of what the entire work was reasonably worth. We think not, as the general plan of the building .as well as the character of the work to be performed remained the same, the only change being in the material used and the manner of mixing it, which resulted in the use of more cement and required more labor, for which the contractors should be allowed what they were reasonably worth.

The rule is stated in Hobson v. Godfrey <& Thomas, 1 Holt’s, 236, as follows:

“Where work is done upon a special contract, and for estimated prices, and there is a deviation from the original plan by the consent of the parties, the estimate is not excluded, but is to be the rule of payment, as far as the special contract can be traced; and for any excess beyond it, the party is entitled to his quantum meruit.”

Charles M. Leslie, for plaintiff.

Frank F. Dinsmore, contra.

The testimony in this case shows that a mixture of a cubic yard of material composed of one part cement, three parts sand and four parts broken stone would lay twenty-five cubic feet in the wall, and that the same amount of material composed of one part cement and six parts sand and gravel would measure in the wall only sixteen and two-thirds feet and would require nine-fourteenths of a cubic foot of cement more than the mixture of one to seven of sand and stone, which was worth $2.30 per barrel — about forty-three cents.

The account may be stated as follows:

755 mixtures of 3 to 7 of sand and gravel equals 699 cu. yds. 755 mixtures of 1 to 6 " “ “ “ “ 466 “ “

Deficiency occasioned by change of mixture..... 233 “ “

699 cubic yards as per contract at $15..............$3,495.00

Extra cement for 755 mixtures at 43 cents............ 324.65

233 cubic yards each reasonably worth $8.33, equals... 1,941.00

$5,760.65

This amount is $77.35 less than that found by the referee, and his finding should be modified to that extent.

The findings of the referee as to the other disputed items will not be disturbed. As heretofore indicated, the plaintiff is not entitled, under the pleadings as'they now stand, to recover more than the stipulated price of $5 per cubic yard, but the pleadings may be amended to conform to the facts and this opinion, when a judgment may be entered confirming the report of the referee as herein modified.


text:
    PRESUMPTION AS TO CANCELLATION OF WILL.
    Circuit Court of Ashtabula County.
    F. Clement Crosby et al v. John C. Crosby et al.
    Decided, January Term, 1907.

      Wills — Contest of — Obliteration of Signature of Testator — -As to Whether It was Done with the Intention of Cancelling the Will— Presumption that the Testator Acted Animo Revocandi, When.

    Where a will after its execution remains in the possession of the testator until his death, at which time it is found among his papers with his name erased, the presumption is that the testator erased his name, and that he did so with the intention of revoking the will.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Error to Ashtabula Common Pleas Court.
   • The action below was the contest of a will. The principal ground of contest was that the testator intentionally revoked the will before his death by cancelling and obliterating the same.

The will was in the' testator’s possession after its execution, and after his death it was found among his papers with the name entirely erased, and there was some evidence tending to show that the testator erased his name, but for what purpose is not entirely clear. On the part of the proponents of the will it is claimed it was done only for the purpose of making his name more definite, and that it was done before the execution of the will; while by the‘contestants it was claimed that it was done after the execution of the will, and with the intention of revoking it.

The first name of the testator was originally signed by him with his initial; this was entirely erased and his name signed in full about an inch below the original signature, with indication that something had been written between the original signature and the subsequent one which had also been obliterated.

The evidence is very conflicting upon the question as to how' the erasure of the original name came to be made, whether it was done for the purpose of simply correcting the signature and before execution, or-whether it was done with the intention of revoking the will.

The jury found it was done with the intention of revoking it and we feel the jury was fully justified in so finding and the trial court in confirming the verdict.

The important question in the case, however, is upon the charge of the court. The court charged the jury that if they should find that the will mnained in the possession of the testator from the time of its execution until his death, then it would be presumed that the testator himself erased his name, and that he did so with the intention of revoking the will. Was this correct?

While, so far as we are aware, there is no ease in Ohio directly bearing upon this question, yet many decisions in other states support the charge of the court, and we think the charge was correct.

In the case of Smock v. Smock, 11 New Jersey Equity Reports, 156, it was held:

“1. A writing sought to be established and proved as the last will of decedent, was executed by him as his will in due form of law in 1846. After testator’s death in —•—, it was found, on the day of his funeral, by his widow and two of his sons, in a private desk of decedent. It was wrapped up in a newspaper. The name of testator and the seal were cut off with a sharp instrument, leaving only the letter B — the first letter of testator’s name — partly remaining. Held: That the testator is presumed to have done the act, and that the law further presumes he did it animo revocandi.”

In the opinion of the chancellor it is said:

“The will was in the custody of the testator during his life, and upon his death it was found among his depositories, canceled, with his name and seal cut off. Under such circumstances, the testator himself is presumed to have done the act, and the law further presumes that he did it animo revocandi (1 Williams on Ex., 78). In a late case, decided in the prerogative court (afterwards taken up on appeal to the Delegates, where the decision below was affirmed), a will was found in the repositories of the deceased, and it appeared that some one had carefully cut out, apparently with the scissors, the whole of the instrument from its marginal frame; the attestation clause was also cut through, but no other part of the writing; and it was held that the court was bound to construe the act as one done by the testatrix for the purpose of canceling, revoking, or destroying the validity of the instrument, and consequently that it was thereby revoked (Moore v. Moore, 1 Phillim, 375; 1 Williams on Ex., 74). The same principle will be found established by the following cases: Freeman v. Gibbons, 2 Hagg. Eccl. Rep., 328; Bumgarten v. Pratt, Ib., 329; Richards v. Mumford, 2 Phillim Rep., 23; Loxley v. Jackson, 3 Phillim Rep., 126; Wilson v. Wilson, 3 Phillim Rep., 552; Davies v. Davies, 2 Add. Eccl. Rep., 223; Colvin v. Frazer et al, 2 Hagg. Eccl. Rep., 266; Holland v. Ferris, 2 Bradford’s Rep., 334; Bulkley v. Redmond, Ib., 282; 6 Wend., 180.”

Pickard, Hoyt, Munsel & Hall, for plaintiffs in error.

Calvin, Hogue, Goddard & Starkey, for defendants in error.

In the matter of the probate of the will of Engelina S. White, deceased, 25 New Jersey Equity Reports, 501, it is held:

‘ ‘ The tearing out of the seal affixed to a will, and of part of the testator’s signature, and the obliteration of the rest of his name and of the names of the witnesses, are a cancellation of the will.
“From the finding of a will in testator’s box thus canceled, the presumption arises that the cancellation was his act, done animo cancellandi, and that, by that act, he intended to render the will null and void.”

In the opinion it is said:

“The will bears clear evidence of the intention to revoke it. The tearing out of the seal and of part of the signature of the testatrix, and the obliteration of the names signed to the will, are a cancellation of the will (Avery v. Pixley, 4 Mass., 460; Hobbs v. Knight, 1 Curties, 768; Goods of James, 7 Jur., N. S., 52; Price v. Powell, 3 H. & N., 341; Smock v. Smock, 3 Stockt., 156). And from the fact that the will was found in the possession of the testatrix, in her repository, thus canceled, the presumption arises that the cancellation was her act, done animo cancellandi, and that, by that act, she intended to render the will null and void. Smock v. Smock, supra; 4 Kent’s Comm., 532; Davies v. Davies, 1 Lee, 444; Lambell v. Lamlell, 3 Hagg., 568; Baptist Church v. Robbarts, 2 Barr, 110.”

Judgihent of court of common pleas affirmed.


text:
    THE LICENSING OF AMUSEMENTS.
    'Circuit Court of Hamilton County..
    Village of Silverton v. Charles H. Davis.
    Decided, June 8, 1907.

      Ordinance — Requiring the Talcing out of a License for Certain Amusements — Rendered Invalid ~by Conferring Discretion on the Mayor —Evidence Necessary to Convict of Violation of — What the Affidavit Must Charge — Bills of Exceptions — Criminal Law — 97 O. L., 504 (30) — Municipal Corporations.

    1. Where a bill of exceptions in a prosecution before a mayor was duly signed and regularly filed in the common pleas, it is not open to, objection in the circuit court on the ground that it was not filed by the mayor or noted on bis docket.
    2. Under an ordinance which provides that “no person shall be engaged in any business hereafter mentioned (including the keeping of public ball rooms or ball grounds) until be shall have obtained a license therefor,” it is necessary in order to charge an offense that the affidavit allege the accused unlawfully failed to secure a license to conduct the business, and not that he unlawfully engaged in the business.
    3. Where such an ordinance delegates to the mayor the power to grant or refuse a license at bis discretion, it confers upon him more than a ministerial or administrative duty, and is invalid to the extent that it is not general and does not apply to every person.
    4. In order to warrant a conviction for violation of an ordinance • providing for the licensing of ball grounds, etc., there must be evidence that the accused was engaged in the business as keeper proprietor or manager, and this requirement is not met where the evidence goes no further than to indicate that the accused maintained a ball ground and pavilion on his private grounds, but not for profit and with which the public bad nothing to do.
    Smith, J.; Swing, J., and Gippen, J., concur.
   The defendant in error was tried before the mayor of the village of Silverton in September, 1906, upon an affidavit and warrant, charging that the defendant in error as the owner and keeper of ball grounds in the village of Silverton, did unlawfully engage in the business of using said ball grounds, by having ball playing on said grounds in said village, without first taking out a license therefor as reqrdred by law. And also in August, 1906, said defendant in error was tried before the mayor of the village of Silverton upon an affidavit and warrant charging that he did unlawfully as the owner and keeper of a public ball room or dancing pavilion located in said village éngage in the business of using such public ball room or dance pavilion for public dancing without first taking out a license therefor as required by the laws of said village made and provided.

The defendant in error was found guilty by the court in both cases. A motion for a new trial in each case was overruled by the court and the defendant sentenced in each case to pay a certain fine and costs. Bills of exceptions were signed by the mayor, containing all of the evidence offered on the trials, and the judgments of the mayor were reversed in the court of common pleas. In this court it is now sought to reverse the judgments rendered by the court of common pleas.

At the outset plaintiff in error makes objection to the hearing of these causes in this court on the ground that the bills of exception can not be considered by the court, for the reason that they were not filed by the mayor, but were filed by the defendant in error, and the filing of the bills was not noted upon the mayor’s docket'. We do not think this objection is 'well taken, as the bill was duly signed and filed in the court of common pleas. Bodosi v. The State, 13 C. C., 275.

Defendant in error moved the trial court to quash the affidavits and warrants, which motions were overruled. He also demurred to the same, which demurrers were overruled, and said causes proceeded to trial.

We are of the opinion that the trial court erred in not granting the motions and in not sustaining the demurrers. Section 1 of the ordinance passed by the village of Silverton, providing for licenses is as follows: ‘1 That no person shall be engaged in any business hereafter mentioned until he or she shall have obtained a license therefor.” Section 6 provides that keepers of public ball rooms shall pay a license fee of $75 per annum; and Section 8 provides for a license for keepers of ball grounds within the village.

While it will be seen from this ordinance that the offenses for which the defendant in error would be liable were the failure or neglect to pay the license fee if he kept a public ball room, or if he was the keeper of ball grounds, these offenses are not charged in the two affidavits; they simply charge that he unlawfully engaged in the business, instead of charging that he unlawfully failed to secure a license to conduct the business. O’Rourke v. The State, 6 C. C., 612.

Defendant in error also urges that Sections 6 and 8, relating to the issuance of licenses for public ball rooms and ball grounds, delegates to the mayor the power of granting or refusing a license at his discretion. In this respect the ordinance does delegate discretionary power to the mayor, and not a mere ministerial duty; and while ministerial or administrative duties may be delegated to the mayor legislative duties can not be. It gives to the mayor the power of discrimination between applicants for licenses; it therefore is not general and does not apply to every person, and this would render the ordinance in this respect invalid. Upon an examination of the evidence in these cases, we are of the opinion that upon this ground alone the defendant in error should have been dismissed.

The law providing for the regulation by municipal corporations of “public ball rooms” and “ball grounds” is found in the.,97th Ohio Laws, page 504, Section 30. This act gives to municipal corporations the power to regulate such matters by granting a license for them. The latter part of Section 30, provides that in the trial of any action brought under the power of licensing, the fact that any party to such action represented himself as engaged in any business or occupation for the transaction of which a license may be required; or as the keeper, proprietor or manager of the thing for which a license may be exacted; or that such party exhibited a sign indicating such business'or calling, or such proprietorship or management, shall be conclusive evidence of the liability of such party to pay the license thereof. This, therefore, is indicative of the kind of evidence that should be adduced to control an action to find one guilty of not taking out a license for the conduct of a “public ball room” or “ball grounds.”

The section relates to one engaged in the “business” or “occupation,” or one who “keeps,” or is “proprietor” of, or “manager” of a certain “thing or business.” The evidence nowhere shows that the defendant in error represented himself in the business or occupation of keeping a public ball room or ball grounds, or as the keeper, proprietor or manager of a public ball room or ball grounds. No sign was exhibited by him indicating such business or calling, or such proprietorship or management, but, on the contrary, while games of ball were played upon the grounds in question by permission, and while there was a covered pavilion, open on all sides, upon the grounds where people might seek shelter in case of necessity, or even dance if they so chose, yet there is nothing in the testimony to show that these ball grounds were for public exhibitions, were used for the purpose of profit, or that' the pavilion itself was used in any way from the business standpoint of one engaged in running it for gain. On the contrary, the evidence shows that the grounds were marked “private grounds,” and the most that can be said about them would be that they were permitted by the owner to be used for picnic grounds. It was simply a place on private grounds where people were allowed to assemble for the purpose of recreation; no admission fee was charged; the ball grounds and the pavilion could not in any sense be construed to impose upon the owner the duty of taking out licenses for their use, as the statute evidently means that such use must be one for business or occupation, which necessarily implies the use of a public ball room and ball grounds for profit. We must recognize the distinction in all matters of amusements, which are public in their nature, to which all the public are invited, for which admission fees are charged, and gain or profit is made, as theaters, race-courses, and other kinds of amusements mentioned in the section under consideration, from those private amusements in Avhich individuals engage and Avith which the great mass of the people as the public have nothing to do.

Frank H. Beppert and A. E. Painter, for the village. .

Charles M. Leslie and Frank F. Dinsmore, contra.

In conclusion, therefore, we are of the opinion that the defendant in error in no wise offended against the law and the ordinance in question, and the judgment of the court of common pleas will be affirmed.


text:
    NEGLIGENCE IN DRIVING ALONG A STREET RAILWAY TRACK.
    Circuit Court of Hamilton County.,
    The Cincinnati Traction Co. v. Louis Kroger.
    Decided, June 15, 1907.

      Negligence — And, Presumption of Contributory Negligence — Where a Wagon was Struck by a Street Car — Charge of Court — Doctrine of the Last Chance — High Rate of Speed not Negligence Per Se.

    1. While it is not negligence per se to drive along a street railway track in the direction traveled by the cars, a presumption of negligence is raised by the admission of the driver that he traveled for three'hundred feet at a slow trot without looking behind for an approaching car, and that his only reason for being in that position rather than on the side of the street was that the wagon ran more easily on the tracks.
    2. It is error to charge a jury with reference to the doctrine of the last chance where there is no allegation in the petition which would warrant an application to the rule of “last chance.”
    3. Whether a motorman who ran his car at an unusually rapid rate of speed on a dark and stormy night was guilty of negligence as a matter of law depends upon the circumstances of the case.
    Giffen, J.; Swing, J., and Smith, J., concur.
   Although it is not in itself negligence to drive a wagon along a street railway track in the direction traveled by the ears, it becomes such if the evidence shows that it was needless, and that the driver failed to keep a proper look-out when he knew a car was about due.

The driver in this case, who was an employe of the plaintiff, testified that he had driven about 300 feet át a slow trot without looking back; that there was no reason why he could not have driven on the left track, or on the left side.of the road, “only it run much easier on the tracks than it did at the sides”; nor any reason why he could not have looked oftener for an approaching car.

This raised a presumption of contributory negligence which was not removed by plaintiff’s testimony. The testimony of the defendant tended to prove that the wagon was in the left track, and suddenly turned into .the right track a moment before being struck by the car, which makes the statement, which was undisputed by the plaintiff’s testimony, a disputed fact. No motion was made at the conclusion of plaintiff’s evidence, hence this court can not now say as matter of law that the plaintiff’s driver was guilty of contributory negligence.

There is no allegation in the petition of such negligence of the defendants as warrants the application of the rule of “last chance”; hence the court erred in charging the jury upon this doctrine both in the general charge and in special instruction Number 3. Drown v. The Northern Traction Co., 76 O. S., —.

The court erred also in charging the jury without qualification that! ‘ the burden of proving contributory negligence on the part of the plaintiff’s driver is upon the defendant.”

In answer to a question by the foreman of the jury after their retirement the court charged as follows:

“A motorman who runs his car at an unusually fast rate of speed on a dark and rainy night under the circumstances of every particular case is guilty of negligence; and if such negligence directly or proximately causes injuries, the traction company is liable. ’ ’

This was too broad and should have been confined to the circumstances of this particular case; nor is it sound as a general proposition of law, for the rain and slippery track on a dbwn grade or other circumstances beyond the control of the motorman may have caused the unusual speed.'

The trial judge might well have set the verdict aside because not sustained by sufficient evidence, but this is not so manifest as to require this court to reverse the judgment.

Geo. P. Stimson, for plaintiff in error.

James li. Jordan and Geoffrey Goldsmith, contra.

For the errors above stated the judgment will be reversed and the cause remanded for a new trial.


text:
    JURISDICTION IN A CRIMINAL CASE AFTER TERM.
    Circuit Court of Lucas County.
    Max Lisberger v. State of Ohio.
    Decided, November 7, 1906.

      Criminal Law — Conviction for Homicide — Motion for New Trial on the Ground of Newly Discovered Evidence — Filed After Term — Jurisdiction to Entertain — Remedy of the Accused.

    A trial court is without jurisdiction to hear a motion for a new trial in a criminal prosecution at a term of court subsequent to that at which the verdict was returned.
    Parker, J.; Haynes, J., and Wildman, J., concur.
    Error to Lucas Common Pleas Court.
   Lisberger was convicted of the crime of murder in the second degree and sentenced to life imprisonment. At the term at which he was convicted he filed a motion for a new trial, setting up, among other grounds for a new trial, newly discovered evidence, and in support of that ground affidavits were filed. That motion came on for hearing and was heard at that term of court, and was overruled. And at a subsequent term — I think at the next term of court, although I am not certain of that — another motion for a new trial was filed, and the chief ground of that motion was newly discovered evidence; and in support of that motion á number of affidavits were filed. Upon the overruling of the first motion and the entering of judgment a bill of exceptions was taken; and upon the overruling of the second motion another bill of exceptions was taken, which is calLed in the record a supplemental bill of exceptions. After the overruling of the first motion a petition in error was filed in this court. After that the second motion for a new trial was filed, and upon its being overruled, as I have said, a supplemental bill of exceptions was taken, and then a supplemental petition in error was filed in this court.

It is said to us that the trial judge overruled this second motion for a new trial upon the ground that he had lost jurisdiction over the matter; that the second motion for a new trial was not filed within the time provided by law. Section 7350, Revised Statutes, sets forth the causes or grounds upon which a motion for a new trial may be granted, and among them the fifth paragraph is, “Newly discovered evidence, material for the defendant, which he could not, with reasonable diligence, have discovered and produced at the trial.”

Section 7351, Revised Statutes, provides -that:

“The application for a new trial shall be by motion, upon written grounds, which shall be filed at the term the verdict is rendered, -and, except for the cause of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial within three days after the verdict was rendered unless unavoidably prevented.”

The first motion for a new trial was filed in due time. The second motion was not filed within three days, nor was it filed within the term. It was filed at' a subsequent term.

We have looked into the record very carefully, and we are impressed by these affidavits, indeed, we are convinced thereby, that this man did not have a fair trial; that he was unfairly treated by the witnesses for the state; that on account of some prejudice against him and some feeling for the deceased, these witnesses combined together to convict this man and send him to the penitentiary; and it seems to us that the verdict of murder in the second degree could hardly have been justified, if the statements set forth in these affidavits are true; and they stand here in the record uncontradicted. The man should not have been convicted of a higher crime or offense than manslaughter, and perhaps he acted in self-defense, so that he should not have hern convicted at all. It seems to us that he is the victim of a wicked conspiracy, and if it was within the power of the court to grant him relief we should be swift to do it.

Frank Mulhollamd and G. E. Holland, for plaintiff in error.

L. W. Wachenheimer, Prosecuting Attorney, and lialph Emery, Assistant Prosecuting Attorney, for defendant in error.

But we find no authority for acting upon a motion for a new trial filed -after the term in a criminal case; we know of nono. We think that is the policy of the law that the matter shall be concluded, by the action in the case taken at the term; and it may be readily perceived that if it were otherwise, there would be no certainty about results in criminal cases, and the state would often be taken at great disadvantage. If a motion might be filed after the term, there is no reason why it might not be filed at any time, no matter how remote from the time of the trial; even after the state’s witnesses had disappeared or been scattered, or perhaps died; so that the state might be unable to show the true state of the case on a new trial. We have no doubt but that the statute is founded upon the theory that that should not be. permitted; but that if it should turn out that a person- is wrongly convicted he should not be -without- a remedy; and we believe the remedy is with the board or tribunal or officials that may either pardon, or in some way, modify the result.

We think that this is a ease that should be presented to the pardon board or the board of managers, who may not only pardon, but reduce or commute the sentence. There the state may be able, by counter affidavits, to put a different face upon the matter. The state here, relying upon the statute, seems to have thought it idle and useless to file, counter affidavits. I speak of the matter as it appears here in the record, with these affidavits standing uncontradicted. It may be that when the matter shall be presented to the proper tribunal, these affidavits will be contradicted, -and that a different face could be put upon the matter.

We see no error in the action of the court -of common pleas in overruling the motion for a new trial. Sufficient showing was not made, upon the first motion, which was filed in- due time, to require the court to grant a new trial, and we think the court properly held upon the second motion. We find no errors in the record requiring a reversal. Therefore the judgment will be affirmed.


text:
    PROMISE BY TESTATOR. OF REIMBURSEMENT FOR SERVICES.
    Circuit Court of Hamilton County.
    Anna C. Gogreve v. Elizabeth Day.
    Decided, June 22, 1907.

      Wills — Devise for Life loith Power to Sell — Promise of Reimbursement for Faithful Services — Constitutes a Binding Contract Against Estate of Promisor — Action to Quiet Title — Presentation of Claim to Executor.

    1. The devise of real estate in this case was for life only, with power to sell for the benefit of the estate.
    2. Where long and faithful service by the plaintiff was acknowledged by the decedent, who exacted a promise that these services should ■ be continued to his wife after his death, with the direction that the wife make suitable provision for the services rendered and to be rendered, a binding contract is made and a debt created against the estate for services performed after as well as before the death of the decedent.
    3. A conveyance under such circumstances by the widow to the plaintiff of property forming no more than an adequate consideration for the services rendered, is a conveyance for the benefit of the estate, and plaintiff is entitled to a decree quieting her title to said property, notwithstanding she nad never presented her claim to the executor who nad knowledge of its existence.
    Gieeen, J.; Swing, P. J,. and Smith, J., concur.
   This action was commenced to quiet title to certain real estate conveyed to plaintiff by Christina Behrens, widow of Frederick Behrens, who died testate. His last will and testament contained the following .provisions, after giving all of the personal property to his wife:

•‘Item 3d. I give, devise and bequeath to my beloved wife, Christina Behrens, all the real estate of which I may die seized and possessed of, or to which I may be entitled at the time of my death, she to have, hold and enjoy the same for and during her natural life; and I hereby authorize and empower my said wife to sell any and all of my real estate, with the exception of the house and lot known as number twenty-one (21) Woodward street. Cincinnati, Hamilton county, Ohio, and to convey the same by a good and sufficient deed in fee simple and the purchaser shall not be required to look to the application of the purchase money. ’ ’

Items fifth and sixth give certain charitable bequests to be paid in money after his wife’s death.

“Item 7th. All the rest and residue and remainder of my estate I give, devise and bequeath to my heirs at law, according to the laws of descent and distribution of the state of Ohio. ’ ’

Held: The wife took a life estate only in the real estate, with power to sell the same for the benefit of the estate. Jones v. Lloyd, 33 O. S., 572; Baxter v. Bowyer et al, 19 O. S., 490; Huston et al v. Craighead et al, 23 O. S., 208.

The plaintiff, though not adopted, lived with the testator and his wife as their child, performing during the best period of her life, from the age of eighteen till about forty-eight years, not only every sort of menial service, but her filial duty toward them.

The testator, a short' time before his death, recognized and acknowledged his indebtedness to her for such service, and exacted a promise-from her to perform a like service for his wife after his death, and directed his wife to make a suitable provision for the plaintiff on account of services rendered and to be rendered. This constituted a binding contract between them, and upon performance by the plaintiff of the services required, created a debt against the estate for services performed after the death of the testator, as well as those before.

That the services performed during a period of nearly thirty years were an adequate consideration for. the real estate conveyed is fully supported by the testimony, hence the power of sale was duly executed for the benefit of the estate. The fact that no claim was presented by the plaintiff to the executor is of little moment, as the object of the law in requiring the presentation of claims against an estate is to apprise the executor or administrator of their existence, amount and character, which in this case were already known. Kyle’s Admr. v. Kyle, 15 O. S., 15, at 20 and 21.

Burch Johnson, for plaintiff.

Chas. J. Fitzgerald, Henry Baer and Powell c& Smiley, contra

The plaintiff is therefore entitled to the relief prayed for., and a like decree to that entered in the court of common pleas may be entered in this court.


text:
    CERTIFICATES THAT MONEY IS IN THE TREASURY AND UNAPPROPRIATED.
    Circuit Court of Hamilton County.
    The Village of Carthage v. Henry Diekmeier.
    Decided, May 11, 1907.

      Municipal Corporations — Tillages—Certificates of Auditor or Cleric under the Burns Law — Sufficiently Definite, tohen.

    When from the nature of the work to be done in connection with a proposed improvement it is impossible to estimate except approximately the expense likely to be incurred, a certificate by a clerk or auditor, that there is in the treasury of the corporation and unappropriated “money sufficient to pay” for the improvement as proposed, is an adequate compliance with the requirement of Section 2702 that a certificate must issue to render valid contracts, agreements or other obligations involving the expenditure of municipal or village funds.
    Giffen, J.; Swing, J., and Smith, J., concur.
   The original action was based upon a contract for making certain street improvements in the village of Carthage. The chief contention arises upon the alleged failure of the village clerk to -certify a sufficient amount of money in the treasury to pay for the work in full. The jury, by a special verdict, found that the following certificate was attached to the resolution of council awarding the contract to the defendant in error:

“I hereby certify that there is money in the village treasury in the fund from which the above fund is proposed to be drawn for payment of the village portion of the improvement, and not appropriated for any other purpose, sufficient to pay for the same. L. Hale,
“$2,030. Village Clerk.”

Samuel W. Bell and Frank F. Dinsmore, for plaintiff in error.

Jerome D. Creed and Archer c& Osier, contra.

This certificate suggests three different constructions as to the amount certified in the treasury, either the fixed sum of $2,030, or the multiple of the estimated number of yards and the bid per yard, or an indefinite sum required to complete the work according to the plans and specifications at the rate bid. The first construction is not tenable, because the figures1 and dollar mark $2,030 on the margin are no more related to the written words nor more significant than if indorsed on the back of the certificate. The second construction is more reasonable, but can not be adopted because the plans and specifications contain the provision that “the quantities named on the estimate are approximate and will not govern the final estimate.” The third and last construction, that the sum is indefinite, accords with the very language oE the certificate that there is in the treasury “money sufficient to pay for the same,” and complies substantially with Section 2702, Revised Statutes, as amended (86 O. L., 391) and in force at the time this contract was made. Under this section a definite sum should be certified when- ascertainable, but when from the nature of the work to be performed it is impossible to estimate except approximately the quantity thereof, the certificate may be for such sum as may be required to complete the improvement according to the plans and specifications at the rate bid; and the village clerk having in this ease so certified, the contractor is entitled to recover the amount of the final estimate under the original contract less the payments already made.

There being no certificate attached to the supplementary contract he is not entitled to recover for any work performed thereunder, and with this modification the judgment will bo affirmed.