text:
    JUDICIAL DISCRETION IN THE FIXING OF A SENTENCE.
    Circuit Court of Cuyahoga County.
    Belfiore Santo v. State of Ohio.
    Decided, June 28, 1910.

      Criminal Law — Modification of Sentence in Felony Case During Term —Journal Evidence of Sentence.

    1. Where a court, in passing sentence for a felony or a misdemeanor, has acted under a misapprehension of the facts necessary and proper to be known in fixing the amount of the penalty, it may, in the exercise of judicial discretion and in furtherance of justice, at the same term, and before the original sentence has gone into operation or any action has been had upon it, revise and increase or diminish such sentence within the limits authorized by law.
    2. The journal is the proper evidence of the sentence actually imposed in a criminal case, and it can not be contradicted by a bill of exceptions.

      J. V. ZottarelU and B. D. Nicola,, for plaintiff in error.

      John A. GUne and Ezra 8. Brudno, contra.
    Winch, J.; ITbnry, J., and Marvin, J., concur.
   The plaintiff in error on the 8th day of February, 1910, pleaded guilty to the charge of rape on Mary Brown, a female person of the age of thirteen years, with her consent, and on the same day was duly sentenced to the penitentiary at hard labor for a period' of one year. On the first day of March, 1910, before he was taken to the penitentiary, on motion of the prosecuting attorney, the sentence of one year was set aside and the defendant was sentenced to five years in the penitentiary at hard labor.

The question for our consideration is, had the court power to set aside the sentence of one year and sentence the defendant to five years, against his objection? We do not consider this an open question. In the case of Lee v. State, 32 Ohio St., 113, it was held:

“Where a court, in passing sentence for a misdemeanor, has acted under a misapprehension of the facts necessary and proper to be known in fixing the amount of the penalty, it may, in the exeieise of judicial discretion and in furtherance of justice, at the same term, and before the original sentence has gone into operation or any action has been had upon it, revise and increase or diminish such sentence within the county authorized by law. ’ ’

The bill of exceptions shows all the evidence heard by the trial judge upon the motion to set aside the sentence, and for re-sentencing, and shows that he was under a misapprehension of the facts that were necessary and proper to be known in fixing the amount of the penalty, and that therefore he was justified in acting as he did.

Our attention is called, however, to the fact that the syllabus of the Lee case limits the application of the doctrine therein stated to cases of misdemeanor. We do not consider this important in view of the authorities cited in the opinion of said case, which apply alike to felonies and misdemeanors. See also 12 Cyc., 783, and cases cited, and 15th Century Digest, Title Criminal Law, Section 2531.

Whatever distinction may be made in England in the application of this rule, between misdemeanors and felonies, has not been adopted in this country.

But, it is said, that after the first sentence and before the modification thereof, plaintiff in error served part of his sentence. This is important, for, if true, the judge was powerless to make any change in the sentence. We find the point, however, not well taken. The certificate of journal entries in the ease shows the sentence of February 8, 1910, to be as follows:

‘ ‘ It is therefore .considered by the court and it is the judgment and the sentence of the law, that the defendant, Belfiore Santo, be taken from the bar of this court to the jail of this county, and thence by the sheriff of this county to the .penitentiary of the state of Ohio, and that he be imprisoned therein at hard labor, for and during the term of one year, and that he pay the costs of this prosecution, for which execution is hereby awarded. It is, however, no part of this sentence that said defendant be kept in solitary confinement for any period of time in the cells of said penitentiary.”

The bill of exceptions shows that pursuant thereto, the defendant was taken to jail, but had not yet been taken by thd sheriff to the state penitentiary at the time the court re-sentenced him.

The point is attempted to be raised by a statement in the bill of exceptions as follows:

“January 20, 1910. Indictment.
“January 21, 1910. To court. Defendant pleads not guilty.
“February 8, 1910. Motion to quash filed by defendant.
“February 8, 1910. B. D. Nichols appointed to defend. Defendant changes plea to guilty of rape.
“Whereupon the defendant was immediately brought before the court for sentence, and the court sentenced the defendant as follows:
It is the judgment of the law and the sentence of the court that you be taken hence to the jail of the county, there to be held for the period of thirty days, that then you shall be taken to the Ohio penitentiary and held at hard labor for the period of one year, and pay the costs of prosecution.’
“Thereupon the defendant was taken to said- jail, in pursuance of the above sentence.”

It may be possible that the trial judge used the language attributed to him in the bill of exceptions, apparently making a part of the sentence imprisonment in the county jail for thirty days. But that is not important; for it is certain that the record of his action found in the journal does not so state. He may have recognized his mistake or reconsidered his action before the sentence was journalized, and so have corrected it to read as the journal shows. At any rate, the journal is the only evidence we are at liberty to consider with regard to the sentence actually imposed, and it can not be contradicted by anything contained in the bill of exceptions. It is apparent that the original sentence had not gone into operation or any action been had upon it before it was modified.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    SOURCE OF FUNDS WHICH A WIDOW INVESTED IN REAL ESTATE.
    Circuit Court of Cuyahoga County.
    William Hoehn v. Christina Hoehn et al.
    Decided, December 28, 1910.

      Administrators and Exeetitors — Identifying Assets of Estate — Prima Facie Case.

    Proof that a widow, administratrix of her husband’s estate, as such received assets of greater value than the property of which she herself subsequently died seized, makes a prima facie case that she invested part of the assets of her husband’s estate in the real property standing in her name at her death. This case must be met by evidence of equal weight or countervailing force, and it is therefore incumbent upon the defendants who claim as her heirs, to introduce some evidence tending to show that she bought said real estate with her own means.
    Winch,-J.; Henry, J., and Marvin, J., concur.
   The judgment complained of in this case is reversed for the reasons stated on the hearing.

It is contrary to the weight of the evidence.

The plaintiff by showing, as he did, that the widow of John Hoehn, Sr., who was the administratrix of his estate, received, as such, assets of greater value than the property she subsequently died seized of, made a prima facie case that the widow invested part of the assets of said estate in the real property which plaintiff desires partition of. It was then necessary for the defendants to meet this prima facie case by evidence of equal weight or countervailing form, and to introduce some evidence tending to show that she bought the real property in question with her own means. This they failed to do.

The case of plaintiff is strengthened by the terms of John Hoehn, Sr.’s, will, which authorizes his executor (the administratrix succeeded to his powers) “to safely invest all monies.” The presumption is that she acted lawfully and pursuant to this power.

Upon the hearing of this case, our attention is called to another case, No. 4648,. pending between the same parties in this court on appeal, involving the partition of other land between the parties.

The question of advancements from John IToehn, Sr., to two of his sons, one of them being plaintiff in error in this ease, is involved in that case. This question is just as vital to one case as to the other, and should be finally settled in an equitable manner, but in the present condition of these two cases we fear a miscarriage of - justice on this point. We therefore suggest that after the error ease is remanded to the common pleas court, judgment be again entered therein, pro forma, if desired, and then that it be immediately appealed to this court.

If such eourse is pursued, after both cases are here on appeal, we will consolidate the two cases and then try out all the issues between the parties, with the hope that at the next term of this court all the litigation between the parties may be determined and put in proper shape for review by the Supreme Court, if desired.

Case No. 4648 will be continued.

Judgment in case No. 4627 reversed because not sustained by sufficient evidence.


text:
    PRESUMPTIONS OF NEGLIGENCE.
    Circuit Court of Lucas County.
    B. A. Stevens Company v. Henry Blum.
    Decided, June 12, 1909.

      Charge of Court — Contributory Negligence in Personal Injury Cases— Prejudicial Error Growing Out of Inconsistent Charges as to Presumptions of Negligence.

    It is prejudicial error for a court to couple in the same charge the instruction that, if the testimony introduced by the plaintiff raises in your minds a presumption that he was guilty of contributory negligence the burden is upon him to remove it, and the further instruction that no presumption of negligence arises against either party.

      Ralph S. Holbrook, for plaintiff in error.

      Smith & Baker, contra.
    Wildman, J.; Parker, J., and Kinkade, J., concur.
   This is a personal injury case which was tried in the court below, in a suit brought by Henry Blum against the company named, and verdict was obtained by him for about the sum of $900. He had previously obtained a judgment, which had been set aside. Several claims are made of error in the trial below as to the introduction of evidence and the charge of the court, and in the giving and refusing of certain requests before argument. The ones to which I wish to address my attention, however, especially, and that seem worthy of consideration are those growing out of the instructions given by the court to the jury in its general charge. We think that there is error in the general charge as disclosed on page 22 of the bill of exceptions, and that that error was prejudicial to the defendant, the plaintiff in error. The court properly instructed the jury, as shown near the top of this page, that “the burden of proving contributory negligence on the part of the plaintiff is upon the defendant, with the qualification that if the testimony introduced by the plaintiff as to the circumstances under which the injury was received raises a presumption in your minds that he was guilty of contributory negligence, then the burden is upon the plaintiff to remove this- presumption. ’ ’ And having said this and given certain other instructions, not strictly relative to them, he says: “I say to you that no presumption of negligence arises against either party to this action.” ¡The jury may well have understood these two instructions as being in effect, “while at law a presumption of negligence on the part of the plaintiff must be shown by the defendant, unless the evidence offered by the plaintiff raises the presumption, in which case it is essential that plaintiff remove it, it is the opinion of this court, and the court says to you, that no such presumption does arise from the plaintiff’s evidence.” I do not think, of course, that the court intended to convey that idea. The trial judge, and probably any lawyer or any judge, would understand the true meaning. Any person familiar with the law and having read the records or having read the evidence, would understand the court as instructing the jury that “at law no presumption arises, in the first instance against either party, but it may arise under the circumstances which I have stated as disclosed by the plaintiff’s evidence, and then it is incumbent upon the plaintiff to remove it.” But the trouble with it is that the jury is not made up of lawyers, and we have to take into account the probability of the misleading of the jury by an instruction which is not so clear but that they may have been misled by it. We think in this instance they would be very likely to be in the way I have mentioned. We think the charge of the court is erroneous also in its definitions of the term “proximate cause” and “preponderance of the evidence.” I will not stop to read them, but content myself with saying that the judgment of the court below will be reversed for these errors that I have mentioned in the charge, first in the instruction ‘ ‘ I say to you that no presumption of negligence arises against either party in this action,” taken in connection with the other language which he gave; and, second, in his definitions of the term “preponderance of the evidence” and “proximate cause.” The judgment will be remanded to the court below for a new trial.


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    LIABILITY IN CASE OF VIOLATION OF A BUILDING CODE.
    Circuit Court of Cuyahoga County.
    The Board of Trustees of the Second Church of Christ, Scientist, v. George H. Tipling.
    Decided, June 28, 1910.

      Violation of Building Code — No Civil Liability to Adjacent Proprietor.

    The violation of a municipal building code by one proprietor of lands therein, does not create a civil liability in favor of his neighbor who claims he is being injured thereby.

      C. W. Dille and William Ilowell, for plaintiff in error.

      Albert Lawrence, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   These two cases have been consolidated; they are separate appeals of the same case, or purport so to be.

The plaintiff prays for a mandatory injunction requiring the defendant either to remove his four-story brick apartment house to a distance of six feet from the north line of his lot, where it adjoins plaintiff’s' property, or to cause all openings in the northerly wall of said building to be closed, so as to comply with the building code of the city of Cleveland.

It appears that the defendant has erected his building up to his north line, under a permit regularly issued by the building inspector of the city; that he was granted the permit because of a condition in the deed from plaintiff to defendant binding the plaintiff to beep the southerly ten feet of its own land, adjacent to defendant’s land, “free from buildings of any description whatever. ’ ’

There is a general allegation in the amended petition that plaintiff “has no adequate remedy in the premises in the ordinary course of the law, and' that it will be permanently and irreparably injured and damaged by the acts and threatened acts of the defendant.” There is no allegation of special damage.

Upon the hearing evidence was introduced as to an increase in fire insurance rates occasioned to the plaintiff by reason of defendant building up to his line instead of six feet away from it. We find as a fact, however, that the rates have not been increased.

Other evidence was introduced to show a diminution in the value of plaintiff’s property, on the theory, that it can not make use of much of its property for building purposes as it otherwise might, if defendant had not built up to his line. In other words, the building code requiring, as is claimed, that there be a twelve foot space between such buildings with side windows, plaintiff will have to keep twelve feet away from its south line, if it ever desires to build on the south and west part of its property here- • after, being two feet more than the ten foot strip originally covenanted not to build upon.

The building code is so indefinite that we are not at all sure that such would be the result. We are inclined to believe that when the time comes the building inspector can not require plaintiff to keep more than six feet from its south line, which is the north line of defendant’s land and building.

Be that as it may it is immaterial, for the covenant calls for Hen feet, the judge who tried the case below came to the conclusion that the building code was inapplicable in this case, and dismissed the petition. We think he wa’s right in his conclusions, but will not restate them or the facts of the case, preferring to base our judgment upon other considerations, which lead to to a more general rule of law.

It is certain that were it not for the building code, which it is claimed has been violated, no injunction should be granted in this ease, first, because the building of defendant is not a nuisance, per se, and second, because no irreparable damage which can not be compensated at law, is shown to exist. Both these propositions are very fully covered and the reasons therefor clearly stated in the case of Rhodes v. Dunbar, 57 Pa. St., 274. The following sentences will be found in the syllabus of the case:

“Courts will restrain erection of building intended for use that will be a nuisance per se.
“Mere diminution in value of property, without irreparable mischief, is not ground for equitable relief by injunction.
“That erection of building will increase rates of insurance upon neighboring buildings is not ground for injunction to restrain such erection. ’ ’

In the opinion it is pointed out that not mere diminution in property values will authorize an injunction, but there must be some direct damage.

“Grant that the species of property in question is extra hazardous; is subject to fires; this on the authority of all the) eases, would not render it a nuisance. It does not necessarily affect health, comfort, or the ordinary uses and enjoyment of property in the neighborhood.”

The eases relied upon by counsel for plaintiff seem to ignore this fundamental' jurisdictional requirement in injunction cases, and to assume that because the plaintiff's property is damaged in value, injunction will lie.

See First National Bank v. Sarlis, 129 Ind., 201, where what is said on this subject is mere obiter, for a demurrer to the petition was sustained on another proposition; at any rate the petition did at least allege that the erection of the building would work special injury. The case of O’Bryan v. Highland Apartment Co., 128 Ky., 282, cites and relies upon the Indiana case, as also the case of Griswold v. Brega, 160 Ill., 490. In the Illinois ease the commissioner of public buildings was a party and it was held that a city and its officers may be enjoined, at the suit of neighboring property owners, from granting a permit to remove a wooden building into a block upon a written consent of property owners, which- consent was obtained by fraud, and was in part revoked in writing when the bill was filed. The court on page 495 says:

“But without considering whether or not the doctrine of the Indiana case is in accord with the weight of authority, we must hold that the bill in this case was properly brought to restrain appellants from seeking to obtain, and the city authorities from issuing, the permit upon this fraudulent petition.”

With this conclusion we agree.

Again, it would seem that the plaintiff must show that the injury he is about to suffer is different in kind and not merely greater in degree than that of the general public. McCloskey v. Kreling, 76 Cal., 511, 513. Increase in fire hazard, which is the only thing here involved, is common to the whole city from the erection of every new building; the property adjacent is only more subject to it.

This rule is adhered to in Ohio in street vacation cases; see Kinnear Mfg. Co. v. Beatty, 65 O. S., 264.

Notwithstanding it is conceded that the building of defendant is not a nuisance, per se, still it was urged on the hearing by counsel "for plaintiff that the building code makes it a nuisance and that the plaintiff is damaged by it as by a nuisance.

This position is untenable. It has been repeatedly held that “the fact that a particular use of property is declared a nuisance by an ordinance of the city does not make that use of the property a nuisance, unless it is in fact so, and common within the common law, or statutory idea of a nuisance.” Wood on Nuisances, Section 740.

This court is committed to that doctrine. Deming v. City of Cleveland, 22 C. C., 1.

So also it is held that a city can not by ordinance create a civil liability in favor of persons injured by reason of the noncompliances of others therewith (Wood on Nuisances, Sections 741,- 742). A leading ease upon the subject, frequently cited in text books and digests, is Chambers v. Ohio Life Inst. Co., 1 Disney, 327, opinion by Judge Gholson. On page 336 he says:

“Something has been said in relation to the ordinances of the city, as applicable to this subject. It is sufficient to say that, as any liability in a civil action, these ordinances have no controlling application. The city has no authority by an ordinance, to authorize a nuisance, so as to protect a party from liability for it in a civil action, nor to subject a party to liability, in a civil action, for an act from which, but for the ordinance, no liability would arise. No such power is conferred on the municipal authority of a city; it belongs to the general legislation of the state. The city has power to prohibit nuisances, and may declare an act to be a nuisance, and impose a penalty. He who does the act may incur the penalty; but it would not follow that such, an act, if not in itself injurious and a wrong to a private citizen, could be made tbe ground of a liability in a civil action. ’ ’

The same principle is recognized in Van Dyke v. Cincinnati, 1 Disney, 532; Meek v. Pennsylvania Co., 38 O. S., 632; Rose v. King, 49 O. S., 213, 224, 225; Jacobs v. Fuller & Hutsinpiller Co., 67 O. S., 70, 75 and 76.

That the Legislature itself could not lay a burden upon on'e man’s land for the benefit of his neighbor’s property is pointed out in the case of Coal Co. v. Cozad, 79 O. S., 348.

The court held:

“The act of April 18, 1904 (97 O. S., 138), may not be so construed and administered as to charge an owner of lands which are, and are to remain, unenclosed, with any part of the expense of constructing and maintaining a line fence for the sole benefit of the adjoining proprietor.”

Many other cases in this state and other states might be cited to the same effect.

We therefore conclude that a violation of the building code of the city of Cleveland by one proprietor of lands therein, does not create a civil liability in favor of his neighbor who claims to be injured thereby.

We prefer to place our decision upon this principle rather than upon a consideration of the peculiar facts in this case, which are so fully and ably covered by the learned judge who presided at the first trial of this ease in the common pleas court.

Petition dismissed and judgment for defendant.


text:
    NO ERROR. IN REFUSAL TO VACATE JUDGMENT.
    Circuit Court of Cuyahoga County.
    The White Sewing Machine Company v. Mrs. Ida Brede.
    Decided, June 28, 1910.

      Vacation of Judgment During Term — Discretion of Court — Negligence of Counsel.

    The vacation of a judgment during term is within the discretion of the court and it is not an abuse of such discretion to refuse to vacate a judgment where the only ground for vacation is that counsel were negligent in attending to the trial of the case.

      M. B. ■& E. E. Johnson, for plaintiff in error.

      Eidy, Klein ;& Earris, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   We have here the review of the action of the common pleas court in overruling a motion of plaintiff in error filed November 1, 1909, to vacate a judgment of that court in favor of Mrs. Brede and against the company, rendered September 20, 1909, which recites that.“the parties come, waive a jury and submit this cause to the court on the pleadings and evidence; on consideration thereof, the court find for the plaintiff and assess her damages in the sum of sixty-five dollars ($65),” etc.

It is conceded that this motion was addressed to the sound discretion of the court, but it is said that the court abused its discretion.

According to the bill of exceptions the only evidence heard on the motion was the affidavit of one William W. Chase and the exhibit attached thereto.

That affidavit undertakes to contradict the journal on the point that the parties came and waived a jury, but the contradiction is argumentative and of little weight, seeming to rest upon the affiant’s statement that no notice of the hearing was given the company, but no affidavit of the regular counsel of 1jfae company is filed.

This ex parte statement must necessarily be based largely upon hearsay evidence.

It further appears from the affidavit that Chase had charge of the ease when it began in a justice court, and saw to it that a transcript for appeal was filed in the common pleas court, after judgment had been rendered by the magistrate against the company.

The affiant then states that it was his custom to notify the company’s attorneys, M. B. & TI. IT. Johnson, to take care of cases appealed to the common pleas court, and that he was under the impression that he had done so in this case, but thinks that through some oversight or some miscarriage of the ’mail, said firm of lawyers never received the notice.

If Chase failed to notify the Johnsons, his negligence is no ground for vacating the judgment; if he did notify them and through some oversight they failed to attend to the case, their negligence is no ground for vacating the judgment.

In the absence of a statement from Chase that he did mail notice to the Johnsons and a statement from them that they* never received such notice, the proof is too uncertain to entitle anybody to affirmative relief. The trial court was left to guess how the inattention to the case came about- and whose fault it was. He refused to guess on the subject and left the judgment standing.

This was his duty, in the absence of preponderating evidence for .the company, and his judgment is affirmed.


text:
    ACTION FOR. PENALTY FOR HAULING CAR WITH DEFECTIVE COUPLER.
    Circuit Court of Lorain County.
    The Lake Terminal Railroad Co. v. State of Ohio.
    Decided, September 28, 1910.

      Railroad Safety Appliances — Defect Occurring in Transit — Repairs— Duty of Company.

    1. A judgment against a railroad company for a penalty for violation of the provisions of General Code, Section 8950, making it unlawful to haul a car not equipped with a coupler which can be uncoupled without the necessity of men going between the ends of the car, will be reversed, where the evidence shows that the coupler complained of became out of order after the train was made up and started and the defect being immediately discovered, the car was watched until it reached the first point where the coupler could be repaired and was there cut out and the coupler repaired.
    2, A railroad company is not required to have on every train it operates, sufficient and proper tools and skilled workmen so that it can repair all defects which may suddenly occur in any of the appliances which by law it is required to have upon its cars and locomotives.

      F. G., E. G. c@ T. G. Johnson and Squire, Sanders & Dempsey, for plaintiff in error.

      F. M. Stevens, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   Plaintiff in error was found guilty of violating Section 8950 of the General Code, which, provides as follows:

“No such common carrier shall haul, or permit to be hauled or used on its line, a locomotive, car, tender, or similar vehicle used in moving state traffic, not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.”

The bill of exceptions shows that the case was tried upon an agreed statement of facts, supplemented by very little other evidence. Paragraph .8 of the agreed statement of facts reads as follows:

“That said defendant the Lake Terminal Railroad Company hauled said car No. 23,200 from the No. 1 scale house located just within the west fence of the yards of the National Tube Company at Lorain to the joint inspection-yards known as Tenth avenue at Lorain, a distance of 3,200 feet, with the coupler link on the ‘A’ end of said car disconnected, under the circumstances set forth in the answer of the defendant.”

The circumstances under which the railroad company hauled the car set forth in its answer, are as follows:

.“Defendant says that on July 22d, 1909, at about 9:30 o’clock a. m., while,ear No. 23,200 was being weighed upon the so-called No. 1 scales, located just inside the west fence of the National Tube Company’s yard at Lorain, Ohio, said car being at that time the middle ear in' a train of nineteen cars, one of the defendant’s brakemen lifted the coupling lever at the west end of said car to uncouple the same, and the chain in the coupling head pulled out of the head.
“Defendant says that said car had been inspected a few hours before; that all its appliances were then found in proper condition; that no defect in any of the appliances on said car was discovered or existed until defendant’s brakemen attempted to cut the train at the No. 1 scale as aforesaid.
“Defendant says that as soon as its brakeman discovered that the coupling lever-chain wms disconnected, he threw the operating or coupling lever back over the top of the end sill so as to prevent its use.
“Defendant says that after its brakeman had turned the coupling lever so as to prevent its use as aforesaid, he uncoupled said car by using the lever on the end of the adjoining car; that after the car was weighed it was coupled by impact and was not uncoupled again, but was taken direct to the interchange track used in common as such by the defendant and the Baltimore & Ohio Railroad Company where tools and material with which to repair such defects as the one described, were kept, and was the nearest point where such repairs could be made.
“Defendant says that its brakeman rode with said train and car to said interchange track, ready to give warning about said disconnected operating lever and prevent its use by other employes, that as soon as he met defendant’s inspector, defendant’s brakeman told him about the condition of said operating lever and said inspector had the same repaired as soon as permitted by Johnson, agent of plaintiff. ”

Johnson was the State Inspector of Safety Appliances, who was present at the time.

It would seem from these conceded facts in the case that the railroad company was diligent in its duty of inspection and that immediately upon discovery of the defect in the coupler the railroad company exercised the highest degree of care, not only in repairing the defect, but in protecting its employes from any possible danger, to them that might arise by reason thereof, until the repair was made.

The only criticism upon this conclusion made by the prosecuting attorney is his statement that the defect in the coupler was of such a nature that it could have been fixed with hammer and cold chisel at the scales, when discovered, if such tools had been at hand, and that company should have had them at hand for that purpose. This suggests that it is the duty of the company to carry repair tools on every train, but what is the extent of that duty? In this case it would have been fulfilled by having at hand a hammer and chisel; the next defect might require an anvil and forge. This is not all. It does not appear that any one of the train crew could have fixed this coupler with these tools or any number of tools. It is well known that a skilled mechanic can repair mechanical devices without any tools, which the untrained man can not repair with a full kit of tools. Is the railroad company required by this law to have not only tools, but a skilled repair man on every train? We think not.

The law here claimed to have been violated is a humane one and only by its strict enforcement will its benefits accrue to those who risk their lives in the transportation business of the country. Had any employe been injured by reason of this defect in the coupler, the better authorities seem to agree that the law imposes the hardship thus occurring without the fault of either party,- upon the company rather than upon the individual. But cases thus arising can not rule the company’s duty to the state as fixed by the statute here under consideration. The question of inevitable hardship to one of the two parties is not involved. The sole question here is whether 'the company did everything in its power to comply with the law, intelligently, promptly and with that foresight which is required of the most skillful in the business. We think it did, and arriving at this conclusion from the conceded facts in the case, it is our duty not only to reverse the judgment, but to enter judgment in favor of the plaintiff in error.

The contention of plaintiff in error that the petition fails to state a cause of action under the statute, we think is not well taken.

Judgment reversed and judgment for plaintiff in error.


text:
    FAILURE TO GUARD EXCAVATION IN STREET.
    Circuit Court of Lorain County.
    The City of Elyria v. John L. Good.

    Decided, September 28, 1910.

      Municipal Corporation — Defect in Street — Prior Accidents at Same Place — Notice.
    In an action against a municipal corporation for damages suffered through its negligence in failing to properly guard an excavation in the street, evidence of prior accidents at the same place may be received for the purpose of charging the- municipality with notice of the conditions existing at the place in question; and this is so, even though actual notice of such prior accidents is not brought home to the proper municipal authorities.

      PL. A. Pounds, for plaintiff in error.

      Clayton Chapman and Guy B. Findlay, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.

       Affirmed without opinion, City of Elyria v. Good, 85 Ohio State, 471,

   This is a proceeding to reverse a judgment recovered by Good against the city for damages received by him through the negligence of the city in failing to properly guard an excavation in one of its streets, which had been made by a licensee of the city in laying a gas pipe and had not been properly filled up.

It is said that there is error in the record in two particulars, first, .because the trial court refused to give the city’s first request to charge, which reads as follows:-

“Evidence that at a time shortly before the accident complained of, a traveler upon Lake avenue at the place complained of by plaintiff, experienced some difficulty in getting through the street, or that his vehicle became stalled, should be considered by you only for the purpose of determining whether or not a defect or dangerous condition existed at such point in the street; and such evidence should not be considered by you in determining whether or not defendant had notice of such defect, unless defendant had knowledge or actual notice of such occurrence, and sufficient time had elapsed after such knowledge or actual notice for defendant to have remedied such defect.”

There was no error in refusing this request; it was defective in that it stated evidence of prior accidents should not be considered in determining whether or not defendant had notice of such defect, unless it had actual notice of such occurrences. The law recognizes such a thing as constructive notice of defects in the streets. This is well stated by the trial judge as follows:

“It is a question of fact for you to determine from all the evidence in the case whether the circumstances were such as that had the city used ordinary care it would have known that this street was out of repair at the point where the accident occurred in time to have repaired it before the accident or to have guarded the same by warning or signal; and in determining that matter you should consider the character of the depression, whether or not it was caused by an excavation, how long it had existed, and whether or not it could be readily observed, its depth and appearance at the time of and before the accident, and from all the facts and circumstances appearing in the evidence it is for you to determine whether or not this road was out of repair so as not to be reasonably safe "for travel and whether or not the city had or should have had notice of its being out of repair a sufficient length of time before the accident to have repaired the same or to have guarded the same by warning or signal.”

It is further claimed that the verdict and judgment thereon is not sustained by sufficient evidence. On this point it is claimed again that no notice to the city, actual or constructive, was shown.

This point is not well taken. It was shown in evidence that other similar accidents occurred at this point at least ten days before Good was injured. To quote from the brief of counsel for the city:

‘‘The testimony of all witnesses called by the plaintiff was that Lake avenue was in a muddy condition at the time of the accident to Good; that there were ruts in the street due to the wear of travel and the general condition of the weather, rains, etc., at that time of the year. There is no question that travel was inconvenient at that time, but it appears that the condition of the street was well known to all persons traveling thereon, and that travel on said street was not considered dangerous.”

It is also known that a member of the board of public service of the city and its street commissioner were on the street at the place of the accident and. observed its condition during said ten days elapsing after the previous occurrence. They and the city were put upon inquiry to find out its true condition and to remedy such defects as its condition suggested. The city knew what work had been done there; ordinary foresight might have suggested the dangerous condition shown on the trial.

Upon a careful consideration of all the evidence, bearing in mind all the suggestions contained in the brief of counsel for the city, we are unable to say that the verdict is so manifestly against the weight of the evidence as to require that it be set aside.

Judgment affirmed.


author: Henry, J. Winch, J.

text:
    AGREEMENT OF SELLER TO BUY BACK CERTIFICATE OF STOCK IF TENDERED BY PURCHASER.
    Circuit Court of Lorain County.
    Ezra Sprague v. Frank Munger.
    Decided, September 28, 1910.

      Unilateral Contract — Acceptance—Consideration—•Tender of Stock.

    1. A proposition by tlie seller of stock made to tbe buyer, that he will repurchase the stock within one year, if the buyer so desires, becomes a contract, upon sufficient consideration, if, within the year, the buyer evinces to the seller his desire to transfer the stock to him and tenders it.
    2. While a tender of certificates of stock may not be sufficient unless they are properly endorsed, or unless coupled with an offer to transfer the stock on the books of the corporation, still, an allegation that the plaintiff tendered the “stock” itself, necessarily includes all thing's essential to the ownership of it.

      G. A. Resell, for plaintiff in .error.

      Frcmk Coleman, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   Munger recovered judgment against Sprague on a contract for the sale of stock.

According to the amended petition in the ease the contract consisted of a written proposition by Sprague and the acceptance thereof by Munger. The written proposition, as reformed by the court, reads as follows:

“I hereby agree to take of Frank Munger the $1,000 stock bought of us today off his hands and give him back his $1,000 that he paid for the stock, with interest at six per cent, one year from date, if he so desires. (Signed) Ezra Sprague.”

It is alleged that Munger within the year evinced to Sprague his desire that the latter take the stock off his hands. This we think, completed a contract between the parties and that Munger ’s agreement to transfer the stock communicated to Sprague before the end of the year, became consideration for Sprague’s promise to take it off .his hands.

It is alleged that Sprague at the end of the year repeated and confirmed his agreement to take the stock, but complained that he was hard up at the time and asked for more time in which to raise the necessary funds and that Hunger granted further time not only then but at subsequent times, until finally about April 16, 1909, Hunger tendered the stock, demanded his pay for it, but Sprague neglected and refused to pay him for it.

It is claimed by plaintiff in error that said tender was not sufficient. This is the only question raised in this court, except that the contract was without consideration, a proposition upon which we have already stated our views.

The insufficiency of the tender is questioned in two ways: by a criticism of the allegations of the amended petition and by a suggestion that the judgment of the common pleas court is not sustained by sufficient evidence.

It is claimed that the tender was not complete because the stock certificate alleged to have been tendered was in the name of Hunger and not endorsed by him, either in blank or otherwise, so as to authorize its transfer to Sprague upon the books of the company, and that the record does not show that Hunger ever offered to endorse said stock certificate.

It is to be regretted that we can not examine the bill of exceptions on this proposition, for said bill is not complete; it does not contain all the evidence.

On page 16 of the bill of exceptions we find the following statement;

" Plaintiff also offered in evidence a certain certificate of stock of the HcKinley Hardware Company, placed in the hands of the clerk of the court of common pleas for delivery to the defendant, and it is agreed by and between counsel for the parties that said certificate be known as ‘Plaintiff’s Exhibit Gr,’ in this ease and be treated as attached to and made part of this bill of exceptions, but retained in the custody of the said clerk for safe-keeping. ’ ’

We have also found in the files a certain certificate of stock of the HcKinley Hardware Company certifying that Frank Hunger is the owner of ten shares of .the capital-stock of said company. This certificate is unattached to the bill, and, moreover, is not identified in any manner as the one referred to as offered in evidence.

Under the rule frequently announced by this court in conformity with the directions of the Supreme Court of Ohio, found in the case of Railroad Co. v. Mackey, 53 O. S., 370, we can not treat this certificate of stock as part of the bill of exceptions.

It follows that the bill does not contain all the evidence and therefore we are unable to weigh the evidence.

As to the sufficiency of the amended petition on the subject of tender, the allegation is that the plaintiff “tendered back to him (the defendant) said stock in accordance with the said understanding and mutual agreement between said parties.

It will be noticed that the stock, not the certificate of stock, is mentioned. The courts make a distinction betweeen the two: the certificate is only the evidence of the ownership of the stock.

An allegation of the tender of the certificate might be faulty unless including a statement that the certificate was properly endorsed or unless coupled with an offer to transfer it. (Hager v. Reed, 11 O. S., 626.)

But an allegation of a tender of the stock itself, necessarily includes all things essential to the ownership thereof.

So holding, we find the amended petition sufficient, and there being no other errors complained of. the judgment is affirmed.

Henry, J.

I feel like adding to what my brother Winch has said in this case that we do not wish' to be accused of being astute in discovering defects in the bill of exceptions in any case or going out of our way to discover that which has not been called to our attention by counsel with respect to a deficiency of the showing by a bill of exceptions of all the evidence so as to enable us to weigh the evidence. But in this case notice was necessarily directed to this deficiency by our attention having been called by counsel to the question of the validity of the tender. We looked for the certificate of stock; finding that there was none attached, we looked for all the allegations of the bill in regard to it, in order that we might examine and see whether or not it’was properly endorsed so as to amount to a proper tender. So that the defect that we found in the bill of exceptions can hardly be said to be one which we have called attention to of our own motion, but rather a defect which the things which were called to our attention in argument necessarily brought to our consideration.

Winch, J.

We do not know that this certificate is the certificate that was deposited with the clerk. There is not a mark of any kind on it to indicate anything of that kind. ITow many certificates Hunger had we don’t know. This is found in the files, as all papers deposited with the clerk are found.

Where it came from we don’t know; we found it between two pages in the bill of exceptions. It is not a certificate properly marked and identified as the bill shows the one to be considered a part, is marked and identified.


text:
    DELAY AND DEFECTS IN EXECUTION OF CONTRACT.
    Circuit Court of Cuyahoga County.
    John Wagner v. The American Construction Co.
    Decided, November 15, 1909.

      Cross-petition — Evidence—Proof of Circumstances From. WMoh Inference May be Drawn Either Way — Directing Verdict.

    In an action on a contract for building a break-water for the protection of the shore of land on Lake Erie, where the defendant by cross-petition claims damages by reason of dilatory and defective work, it is not error to dismiss said cross-petition for want of direct evidence that the damage to his land was caused by delay or de. •'ts in the construction of the break-water, when the evidence only sn ws circumstances from which the fact that such damages were so occasioned is not a more natural inference than that they resulted from some other cause.

      C. J. Benkoski, for plaintiff in error.

      Laubscher & Kees, contra-
    Winch, J.; Henry, J., and Marvin, J., concur.
   The American Construction Company, defendant in error, was plaintiff below, where it commenced its action against John Wagner, for the contract price of constructing a breakwater in the lake opposite his premises. Wagner by answer and cross-petition alleged that the construction was both dilatory and defective, whereby his land along the? lake front was caused to settle, from the beating of the waves on the shore.

• At the close of his evidence in support of the cross-petition, the court granted the company’s motion to withdraw the same from the jury and to direct a verdict in its favor upon the defendant ’s prayer for affirmative relief. This action of the court, which is the only error urged here, was taken upon the theory that the defendant had failed to show that the damage to his land was caused by the alleged delay or defects in the construction of the breakwater.

At the close of all the evidence the question was submitted to the jury whether or not the defendant was entitled to recoup any part of the contract price’ by reason of the alleged delay and defects in the construction of the breakwater; but the jury returned a verdict for the plaintiff, for the full amount of the agreed price as claimed by it. It thus appears that the jury found that the structure itself was not diminished in value by reason of any fault of the plaintiff below in these respects. While this is perhaps not quite conclusive of the grounds on which the claim of the cross-petition is founded, still it is difficult to see what delay or defect might, consistently with this verdict, exist in the construction of the breakwater that, without impairing its value as such to Wagner, could nevertheless cause damage to his land.

The president of the company testified, at page 69 of the bill of exceptions, “that this breakwater was to be constructed for the protection of Mr. Wagner’s premises.” That, of course, was within the contemplation of both parties. But whether it could be made effectual to that end nowhere expressly appears. True, Mr. Wagner testifies at pages 413 and 414, that upon examination of the bank, along this lake front, in the spring following the completion of the breakwater, he “found, down below, it was all worked out by lake waves,” and that it was undermined for “about seven or eight feet,” right underneath, and “the lake had worked down that way by waves, little by little. ’ ’ But he further testifies, at pages 449 and 450, that, prior to the construction of this breakwater, he had tried to prevent such erosion by putting a row of large concrete blocks in the water all along his lake front. These, he says, were ‘ ‘ put there for the purpose of a breakwater and they didn’t work. After I had them there, they was no good; that’s the reason why 1 got this breakwater constructed. They were no good.”

There is no direct evidence in the record to show that the new breakwater, however perfectly constructed according to the terms of the contract, would have been any more effectual than the old one.,-to prevent the damage from which he was suffering. This was left entirely to inference. It may perhaps be a natural inference that a proper breakwater would have prevented the waves from beating against the shore. But another and deeper cause of such difficulty appears from the testimony at pages 486 and 487, of John Hogg, foreman at Gordon park for twenty-seven years, who says that he has known thirty-five foot piling (which is much longer than any furnished by Wagner for this job) to be driven “to within four feet of the water at night, and in the morning they were up about fifteen feet in the air. They came up in the night after being driven.” This he says is apt to occur at irregular intervals where so-called liver quicksand underlies the land and water along the lake front.

E. B. Wicks, who afterwards repaired Wagner’s breakwater with piling 33 or 35 feet long, testifies at page 476 that he drove piling and they drove down soft, and back further they drove down hard through that gap. there, there seemed to be a soft hole there, they went down easy, and we had to hit with hammer light or they would go down too low.”

It appears, moreover, from the testimony of the witness Imhoff at page 246, that there was a break in the water pipe near Wagner’s property sufficient to soften the ground there, about the time his bank subsided.

It is not, of course, for the court to weigh conflicting evidence in determining whether the direction of a verdict against the party holding the affirmative of an issue is proper. But that is not the rule to apply to this evidence. In L. S. & M. S. Ry. Co. v. Andrews, Admr., 58 Ohio St., 426, the syllabus reads:

“In the absence of direct evidence in its support an allegation that one sustained injuries by reason of the negligence of the defendant is not sustained by proof of circumstances from which the fact that his injuries were so sustained is not a more natural inference than any other.”

There the court held that ‘ ‘ a verdict for the defendant should have been directed as requested.”

So here we hold that, for wani of direct evidence that the damage to Wagner’s land was caused by delay of defects in the construction of his breakwater, the proof of circumstances from which the fact that such damages were so occasioned is not a more natural inference than that they resulted from some other cause, does not make a ease for the jury. -We think,, though not without some hesitation that the verdict for plaintiff on the defendant’s cross-petition was properly directed, and the judgment is affirmed.


text:
    DAMAGE TO A STREET EMBANKMENT FROM THE SHUTTING IN OF FLOOD WATER..
    Court of Appeals for Hamilton County.
    The City of Cincinnati v. The Baltimore & Ohio Southwestern Railroad Company and The Cincinnati, New Orleans & Texas Pacific Railway Company.
    Decided, July 19, 1913.

      Negligence in the Impounding of Flood Waters — Liability for Resulting Damage as Betioeen Municipality and Railway.

    A municipality which has failed to provide for the safety of its embankment by constructing culverts under it for the purpose of draining the interior basin of flood waters, and thus equalizing the pressure of same with that of such waters in the exterior basin can not shift the liability for damage resulting from a break in the embankment during flood time by claiming -that the break was due to the failure of a railroad company, whose fill formed one side of the basin, to provide openings which would have permitted the water which accumulated in the basin to have escaped to the other side and thus equalize the pressure.

      Alfred Bettman, Solicitor of Cincinnati, Coleman Avery, Assistant Solicitor, and Constant SouthwortJi, for plaintiff in error.

      Bdiuard Barton, for the B. & O. S. W. R. R. Co., and Harmon, Colston, Goldsmith & Hoadl&y, for the C. N. O. & T. P. Ry. Co. and the B. & O. S. "W. R. R. Co.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.
   The action below was for damages caused to the city by the destruction of a part of the embankment upon which Eighth street has been constructed and also the consequent destruction of a part of the viaduct upon said street and embankment which were caused by a flood in the Ohio river, in March, 1907.

The claim of the city is based upon the proposition that the law imposed a duty upon the two defendant railroads to provide a passage for flood waters through or under their embankment, in order to keep the flood water east of said embankment and south of Eighth street at an equal height and pressure with the water east of said embankment and north of Eighth street. The specific claim is made that a small culvert about four feet in diameter, which had been constructed under said railroad embankment at the time it was built, should have been kept open to permit the free passage of this flood water.

It appears from the evidence that the embankment upon which the defendant railroads are now built and operated was originally filled by the predecessors in title of said B. & O. Southwestern Railway Company in 1870 and 1871. When this railroad embankment was constructed over the low land known as Millcreek bottoms, the stream called Millcreek was so straightened as to be thrown west of said embankment, which practically ran north and south, and for the purpose of affording drainage into that stream as so re-located, and probably for the further purpose of permitting flood waters to pass through, four culverts were constructed through said embankment between the C., IT. & D. railroad on the south, and Harrison avenue on the north, and there was also an opening under said railroad at what was called Gest street, for the passage of the street thereunder. About two years after said railroad embankment was constructed the city built Eighth street, filling an embankment for same up to the grade of said railroad so that they crossed on grade. In making said fill there were no culverts or passage-ways made through this embankment, which was a solid fill from Millcreek east to the higher lands of the city. The filling of Eighth street in this way divided the basin lying east of said railroad embankment into two parts — that lying north of Eighth street being accessible to the flood waters of the Ohio through the three largest culverts that had been constructed under the railroad embankment, while the basin lying south of Eighth street had no passage-way through the railroad embankment for either drainage water or flood water except the fonr-foot culvert previously spoken of, and which culvert .it appears from the record was constructed by order of the engineer in charge of the building of said railroad embankment, primarily for the purpose of draining certain lands then used for brickyard purposes.

The defendant, the C., N. O. & T. P. Railway Company, is the lessee of the Cincinnati Southern Railway, which is owned by the city of Cincinnati, and for its use a strip of land was acquired by the city along the east side of the original fill of the B. & O. S. W. Railway, and was filled wide enough to accommodate two tracks, to the same grade as that of the existing railroad, and the culvert complained of was extended through this additional fill. There is some dispute in the record as to just how and to what extent this culvert had become clogged up and at which end the obstructions occurred.

The real question in the ease, therefore, seems to be whether or not it was the duty of the defendant railroads to keep open a passage-way to the south basin for the flood waters. Under the facts of the case the court is of the opinion that no such duty existed as against the defendants. It was the act of the city in building the earthen embankment on Eighth street which cut off the south part of the basin lying east of the railroad embankment from the main culverts which had been left through the railroad embankment lying north of Eighth street and prevented said culverts from performing their function of admitting flood waters to the entire basin, and it was not within the power of the city to insist that the small culvert which had been constructed primarily' for drainage purposes should be so opened and maintained as to operate in place of the larger ■ culverts whose operation had been by its act rendered of no avail so far as the south basin was concerned. And if it was necessary for1 the safety and maintenance of the city’s embankment at Eighth street to have the flood waters equalized on each of its sides this could have been accomplished by the construction of one or more culverts -through the Eighth street embankment, and as the record shows, the expense of such construction would have been very slight. The city, by its failure to construct such passageway for water under its own fill so built after the railroad embankment, could not create a new use for the small drainage culvert, or require the railroads to maintain a culvert for the purpose of flooding the area of the south basin which had thus been cut off by its embankment from the culverts originally constructed for such purpose.

This being the view of the court as to the law, under the facts of the case it hardly becomes necessary to review the elaborate arguments, both oral and by printed brief, submitted by distinguished counsel upon the many interesting questions discussed therein, in order to take up in detail the many errors claimed on behalf of plaintiff in error. Appropriate to his situation is the language used by Davis, J., in McLemore v. Louisiana State Bank, 91 U. S., at page 28:

“It is unnecessary to consider whether in all respects the charge of the circuit court to the jury was correct, because the record shows the case of the plaintiff to be so fatally defective, that the judgment would not be reversed for instructions, however erroneous.” In which case he cites: Brobst v. Brock, 10 Wall., 519, at 525; Decatur Bank v. St. Louis Bank, 21 Wall., 301.

The case was carefully tried and submitted to a jury under a full, fair and careful charge given by the trial judge. Under Section 11364, General Code, this court finds that substantial justice has been done by the decision of the court below, and that no errors appear in the record prejudicial to the plaintiff in error.

Judgment is therefore affirmed.


text:
    LIABILITY FOR. LEASED MACHINERY DESTROYED BY FIRE.
    Court of Appeals for Columbiana County.
    Meek & McClure v. Gealy & Andrews.
    Decided, March Term, 1913.

      Bailment■ — Leased Machinery Destroyed by Fire — Construction of Contract to Return It in Good Condition.

    An agreement in a lease of a stave mill that the lessee will, at the termination of the lease, return the mill in as reasonably good condition as when taken away, does not make the lessee liable in damages for the value of the mill, if it is destroyed by fire without his fault.

      E. L. Lyon and Billingsley, Clark & Moore, for plaintiffs in error.

      C. C. Connell, contra.
    Pollock, J.; Norris, J., and Metcalfe, J., concur.
   The defendants in error were plaintiffs in the court of common pleas in this county, in an action to recover on account for staves sold and delivered by them to the defendant below, the" plaintiffs in error herein, in the s,um of $1,171.27. To this cause of action the defendants below, now the plaintiffs in error, filed an answer admitting part- of this indebtedness, but denying the balance of the account.

They further filed a cross-petition in which they claimed that on November 16th, 1910, the plaintiffs below hired from the defendants below a stave mill, on condition that they pay therefor a monthly rental of ten dollars. They said that plaintiffs agreed to keep up all the wear and tear of said machinery, and at the conclusion of their term of rental, the machinery was to be delivered to defendants below in as reasonably good condition as when taken away; that plaintiffs below were to have an opportunity to purchase this machine at any time within nine months from the date of the agreeement, paying therefor $950'. They then say that plaintiffs refused and neglected to deliver the machinery in as reasonably good condition as when said agreement was entered into, and they ask damages in the sum of $950.

To this cross-petition the plaintiffs below filed an answer in which they admitted entering into this written agreement of lease, but alleged that the machinery while in their possession, and without any fault on their part, was partially destroyed by fire, and that they delivered to defendants below the remainder of the machinery which was not destroyed at' the time of the fire.

The only error complained of in this ease • arises from the issues joined between the cross-petition and the answer thereto, of the plaintiffs below.

The evidence in this case shows that the parties entered into a written contract of lease for a stave mill. The only part of this contract which is necessary to a determination of this issue is that part reading as follows, “Second parties agree to keep up all the wear and tear of said machinery. At the conclusion of this lease machinery to be delivered to parties of the first part in as reasonably good condition as when taken away.”

During the life of this lease the mill was almost totally destroyed by fire; that the fire occurred without any^ fault on the part of the plaintiffs below, and that they delivered back to the defendants below the property leased that was not destroyed.

The verdict and judgment on the issue thus joined between the cross-petition and the answer was in favor of the plaintiffs below, and for that reason the plaintiffs in this- court are prosecuting error, claiming that the defendants in error by their contract bound themselves absolutely to return the property leased, and that when they failed they were required to respond in damages, regardless of the reason for the failure.

The legal relation existing between the parties by virtue of this contract, in regard to the care and return of the property, was that of bailor and bailee for their mutual benefit. In the absence of a contract the common, law duties of a bailee require him to exercise ordinary care in the preservation of the property which is the subject-matter of the bailment, and upon the termination of the bailment, to return the property t'o the bailor, or otherwise account for the property according to the contract, and he is not liable for damages to the bailor for the destruction of the property which does not occur by reason of the want of ordinary care on his part; but the parties .are permitted to make their own contract, and the bailee may enlarge his liabilities by the contract until he becomes the absolute insurer of the property against any damage or loss that may occur from any source.

It is not to be presumed that the bailee has become liable for the property beyond his common law liability, for this can only arise by his express or implied contract. So much depends upon the terms of the particular contract and the subject-matter to which it has been applied, that it is hard to deduce any absolute rule from the reported cases which will determine when the bailee’s liability extends beyond that of ordinary care, and he becomes an insurer of the property, but when the language of the contract does not require more of him than would be implied by law under like facts, the bailee’s liability is not increased by reason of his having contracted to do what the law would require of him in the absence of this provision of his contract. Lake Michigan Car Transportation Company v. Crosby, 107 Federal, 723; Fairmount Coal Company v. Jones & Adams, 67 C. C. A., 265 (134 Federal, 711); Seevers v. Gable, 94th Iowa, 75 (62d N. W., 669) ; Young v. Leary, 135 N. Y., 569 (32d N. E., 607) ; Standard Brewing Company v. Bemis & Curtis Malting Company, 171 Ills., 602 (49th N. E., 507).

Further citations might be given, but we think these and the authorities referred to in them will suffice.

It would not be correct to say that the authorities uniformly follow this rule. Plaintiffs in error have called our attention to a number of cases, and others might be referred to, holding that where the bailee binds himself by contract to do what the law in the absence of the contract would infer, he is bound to perform his contract. But we think an examination of this class of eases will show, with few exceptions, that the bailee was liable for other reasons; either that by the terms of his contract he had bound himself beyond the common law'liability, or the facts showed that the loss occurred by reason of his not having used the care required of him. Neither of these appear in the case now before the court. The evidence shows that the stave mill was • destroyed by fire without fault on the part of the plaintiffs below, and the parties had contracted that at the conclusion of the lease the machinery was to be delivered to the plaintiffs in error in as reasonably good condition as when taken away. The language of this contract requires of the defendants in error just what the law would have required in the absence of this provision of the contract. A fair construction of this contract does not imply an absolute promise to return the property, but that the parties had in contemplation the continued existence of the property until the end of the lease, and that a} that time it should be returned to the plaintiffs in error. The property at that time, without the fault of the bailee, was not in existence, and he should be held to no greater liability than he would have been in the absence of this contract.

For these reasons the judgment of the court below is affirmed.


text:
    ELECTION BETWEEN REMEDIES.
    Court of Appeals for Hamilton County.
    Sam Lee et al v. Joseph S. Thoma.
    Decided, July 1, 1913.

      Specific Performance — Election to Prosecute an Action for — Constitutes a Defense to an Action for Damages.

    An action for specific performance is a bar to a subsequent action for damages alleged to have been sustained through, failure of the defendant to carry out the contract which forms the basis of the first suit.

      Thorndyke & Gapelle, for plaintiffs in error.

      W. A. Hicks, Jas. B. Jordan and Worthington ■& Strong, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. TL, J., concur.
   The action below was brought by plaintiff to recover damages for failure to carry out a contract to lease certain premises at 514 Vine street together with an entrance, same to be used for a chop suey restaurant, the term of the lease to be four years. Plaintiffs took possession after making the contract, and occupied said premises for a few months. Defendant made changes in the entrance and stairway to which plaintiffs objected and finally moved out of the premises and filed suit in the court of common pleas on June 15, 1911, in case No. 148116, to compel the specific performance by the defendant of his contract for the execution of a lease for four years under the conditions prescribed in the contract. On December 4, 1911, this suit was dismissed without prejudice at plaintiffs’ costs.

In the meantime, on August 22, 1911, plaintiffs filed a suit in an action for damages suffered during the period of plaintiffs’ occupancy against defendant for failure to carry out the same contract, which is the suit now under review.

In this case below an answer was field practically admitting the making of the contract and its performance by the defendant, and as a fourth defense set up the suit brought in action No. 148116 of the court of common pleas for specific performance of this contract, and claiming “that in filing said suit plaintiffs thereby elected to pursue their remedy of specific performance for the alleged failure of this defendant to comply with the provisions of said contract, and by such election are barred from prosecuting this action for damages.”

To this defense plaintiff demurred, which demurrer was overruled by the court, and plaintiff rely upon the error of« the court below in overruling such demurrer.

In the opinion of this court the demurrer to the fourth defense was properly overruled. Plaintiffs elected in filing their first suit to compel specific performance, and having made their election they must refy upon that, and can not now abandon that suit or bring an action for damages for breach of the same contract. Zutterling v. Drake, 10 C.C.(N.S.), 167; 7 Ency. of Pleading and Prac., 364.

Judgment below is therefore affirmed.


text:
    TITLE TO THE BORROW PITS ADJACENT TO THE LICKING RESERVOIR.
    Court of Appeals for Licking County.
    Isaac Jones v. Wm. P. Myers; and Isaac Jones v. James T. Haynes.
    Decided, 1913.

      Title to Lands Issued by the United States may be Inquired into— Adverse Possession can not be Claimed against the State — Failure of Title in Lessees of the State — Canal Lands and Those Adjacent Thereto,

    Admitting that certain depressions adjacent to the embankment surrounding a canal reservoir are borrow pits from which earth was taken in constructing the embankment, the act of the state in so excavating and removing the earth, or in subsequently tiling the depressions in order to drain them of water seeping out of the reservoir, did not amount to an appropriation of the land from which earth was thus removed; and in the absence of any evidence that title to these pits was acquired by the state by selection, under the act of Congress of May 24, 1828, a lease of such lands by the state is void as against the title of one holding by a direct line of mesne conveyances to himself from the United States under a patent issued in 1843.

      Kibl&r ■& Iiibler, for plaintiffs.

      Flory & Flory, contra.
    Powell, J.; Shields, J., concurs; Voorhees, J., not sitting.
   These two cases came into this court by appeal, and are submitted together, being identical in the issues presented, both of fact and of law. The plaintiff seeks to have his title and possession quieted to a tract of land described in his petition; the defendant Myers claims the right of possession to the west half, and the defendant Haynes to the east half of the same land, and both ask that their title to the same be quieted as against the plaintiff or those claiming under him. Plaintiff’s right is the same in each case, and the defendant’s separate rights are acquired from the same source and by the same instrument of lease.

Plaintiff: claims title to the land described in the petition, under a patent from the general government issued April 10, 1843, and by a direct line of mesne conveyances from the United States to himself. The land described in the patent is the N. W. *4 of the S. W. y¡. of S. 13, T. 17, and R. 18, refugee land containing a fraction over forty-three acres. Across this tract and running in a northeasterly and southwesterly direction is the northwestern embankment of the Licking reservoir, now called Buckeye lake, so that the southeastern part of the said forty-three acre tract is covered by the bank and the waters of the lake; the part of said tract not covered by the lake is owned and occupied by the plaintiff, Isaac Jones, and has been so owned and occupied by him since 1879. No question is made by any of the parties to this suit as to the title of so much of said tract as is covered by the waters of the lake or the said embankment. This title is conceded to be in the state of Ohio by lapse of time and adverse possession as against parties holding under the patent from the government. But adjoining the embankment on the northwest side are what is known as “borrow pits” or places from which the earth has apparently been removed for the purpose of constructing the said embankment, which is an artificial bank built to retain the waters of the lake above the level of the lands on that side, thereby creating low places adjoining the outer edge of said embankment the entire length of so much thereof as lies on plaintiff’s said lands. These low places thus made vary in width from a point at or near the eastern end up to one hundred and fifty feet and are estimated at an average of one hundred to one hundred and twenty-five feet in width along the entire embankment on plaintiff’s said land. It is this line of borrow pits along the northwesterly side of Buckeye lake across the lands of plaintiff that is involved in this action, plaintiff claiming title under a patent from the government supplemented by actual possession of the premises by him from 1879 up until the present time, and the defendants claiming the right of possession by lease from the state of Ohio, which claims title to said borrow pits either by virtue of the act of Congress óf May 24, 1828, granting five hundred thousand acres of land to the state of Ohio for the purpose of assisting in the construction of the canal system of the state, or by appropriation under the act of the Legislature of Ohio of February 4, 1825, providing for the construction of said canal system and authorizing the appropriation of.land or materials for that purpose. The evidence shows that the canal system was completed some time in 1832; the date of the patent for the lands described is April 10, 1843, so that it is a contest between two titles emanating from the government as to which conveys the better rights to the premises involved in this action, under the respective titles thus claimed. Buckeye lake, formerly Licking reservoir, is a part of the canal system of Ohio, and although it is now dedicated as a public park for the benefit of the citizens of the state, it was originally constructed as a part of that system.

The common source of title to all lands in Ohio is the general government and the patent issued by the general government is usually conclusive as to the title under it. The court can, however, inquire whether or not such title is in conflict with any other prior legal or equitable title to the same land. The'state claims to own these lands either by virtue of a selection of the same under the act of Congress, or by an appropriation under the statutes of- Ohm providing for the appropriation of lands in the construction of the canal system. No evidence was offered of any selection of this particular tract of land ever having been made. The statute, which authorizes such selection, provides that the same shall be made within two years from the date thereof, under the authority and by the direction of the Governor of the state of Ohio, and that when such selection has been made, he shall report the same to the land office of the district where such land lies, and the lands so selected should be granted by the United States to the state of Ohio. If this had been done so as to show a transfer of title under this statue to the state of Ohio, there ought to have been a record of it, and since no such record has been offered, we conclude that it was not done and that the stat,e did not acquire title to these lands by selection under this statute. There is no question made as to the line or chain of title from the patentee under the patent of April 10, 1843, to the plaintiff. His title is good provided the state had not acquired a prior title by virtue of an appropriation under the statute of February 4, 1825. It has been repeatedly held in Ohio that an appropriation under this statute conveys absolute title in fee simple to the state, and when such title actually vests in the state, it can not be defeated by a claim of adverse possession or by lapse of time, but remains in the state until conveyed away by virtue of some duly authorised proceeding.

Claim is made on the part of the plaintiff that by reason of the continued use and possession of these borrow pits by the plaintiff, his title would become complete as against the state by adverse possession. This position is not tenable, as adverse possession does not run against the state. Plaintiff’s possession of these borrow pits was either as a matter of right under his title from the government, or by sufferance of the state of Ohio.

The claim is also made on behalf of the defendants that because seepage from the lake through the embankment, and the over-flow, at times of high water, found its way down into these borrow pits, and that afterwards the state tiled out the borrow pits constituted an appropriation of the same. But the evidence does not show that these borrow pits were made by the state with the intent or purpose that the same should constitute a drain or ditch to carry off such seepage and over-flow for the benefit of the lake or the canal system of Ohio. The seepage and the over-flow from the lake through its waste weirs found its way to the borrow pits simply by operation of the natural law by which water runs to the low places until it finds' its level and did not find its way there by reason of any construction on the part of the state in such a way as to constitute drainage for such seepage and over-flow. If these borrow pits had been constructed by the state with that end in view and not as a result simply of excavating the soil for other purposes, it would present a different question, as such construction might then have been considered as an appropriation of the land itself for the benefit of the canal system. .. : ■ '

The claim is also made by the plaintiff that no such appropriation was ever had, on the part of the state, of the lands in controversy as would carry with it a title to the same; that such appropriation as is shown here, if one was ever made, would convey only the materials taken from the land and used by the state in the construction of the artificial embankment of the reservoir or lake. And there is no direct evidence in the case that any such appropriation was ever had. It is true that the topography of the land supplies an inference that the soil that was formerly in these borrow pits was taken out and used in the construction of such embankment, but no witness testifies to this as a fact.

To constitute an appropriation within the meaning of the law, the thing appropriated must be taken into actual ownership, possession and use. To appropriate anything for the canal system, it must become a part of that system.

“Where the possession and use of lands or streams in the construction of the Ohio canal system were merely incidental, constructive or indirect, and not of a character to fairly apprise both the officers of the state and the owners of the lands, that such lands or streams were appropriated and used in the construction of the canals, no fee to such lands or streams vested in the state.” 61 O. S., 561.

Again it will be remembered that if any appropriation of these lands was made by the state in the construction' of the canal system, such appropriation was made while the title to said lands was still in the general government, as no patent was ever issued until more than ten years after such canal system had been completed.

The case of State of Ohio v. Fenn et al is authority for the proposition that appropriation by. the state did not operate on unpatented lands under this statute.

“Section 8 of the act of February 4, 1825, the substance of which was an appropriation by the state of all lands, waters and streams taken possession of by the canal commissioners, vesting the fee in the state, did not operate on unpatented United States lands, such as the land involved in this case was. ” 10th N.P. (N. S.), 325.

This case also holds that as against the general government the state could not obtain title either by appropriation under this statute or by lapse of time. It is conceded, however, that as against a patentee the state could acquire title. For this reason, no claim is made in this action for so much of the lands described in the patent as is inundated by the waters of the lake or covered by the embankment built to retain the same. As was said before, there is no direct evidence that these borrow pits, so-called, were made by the state in obtaining materials for the construction of the embankment of the lake; but admitting that such was the case, was the act of the state in excavating and removing the soil adjacent to such embankment an appropriation of the lands from which such soil was removed so as to vest the title to the same in the state ? This court is of the opinion that it was not; that the appropriation contemplated by the statutes is an actual appropriation or taking possession of the land itself as a part of the canal system and that removal of soil from the surface of the lands for the purpose of constructing an embankment, and for no other purpose is no more an appropriation of the fee to the land itself than if such land had been covered with stone or timber and the same had been removed by the state for use in the construction of such embankment. It is an appropriation of-the material used and of that only. This was authorized by the terms of the statutes above referred to.

Finding as we do that the state did not acquire title by selection or, at least, that there is no evidence whatever that the title to these lands was so acquired, and that the state was without any title as against the general government, we think that it could not acquire title as against the patentee of the government, who acquired his title subsequently to such appropriation, unless there would be a new act of possession with a claim of ownership on the part of the state after such patent had been issued. There is no evidence whatever of anything of this kind, nor is any claim made to this effect.

To recapitulate:

1. The plaintiff has title from the government for the lands in controversy through the patent issued to Jacob Grove, April 10, 1843, by intermediate conveyances to himself.

2. There is no evidence that the state acquired title to these lands by selection under the act of Congress, of May 24, 1828.

3. If the state acquired title by appropriation under the act of the State Legislature of February 4, 1825, it must have acquired it before the canal system was completed in 1832, and before the land in controversy was patented in 1843, and while the title thereto was still in the general government. This could not be done.

4. The acts relied on by the state to show an appropriation of the lands described are insufficient for that purpose.

5. There has not been any appropriation of these lands by the state, since the patent for the same was issued.

Hence, we conclude:

1. That the state has no title to the lands in dispute, and its lease to the defendants for the same is void and of no effect.

2. That the plaintiff has title thereto, and is entitled to the relief prayed for in his petition.

A decree may be entered in conformity with this opinion, quieting the title of plaintiff and making the injunction, heretofore allowed, perpetual. The cross-petitions of the defendants will be dismissed at their costs.


text:
    CROSS-PETITIONER. CAN NOT PREVENT DISMISSAL OF ACTION.
    Circuit Court of Cuyahoga County.
    Mary A. Montpelier, Trustee, v. Essie Montpelier et al.
    Decided, November 15, 1909.

      Suit to Quiet Title- — Plaintiff Dismisses Action — Cross-petition Can Not Keep Case in Court, When.

    Where a plaintiff in an action to quiet title desires to dismiss her ease, a defendant who by cross-petition asks for an accounting of her equitable interest in the property under a trust can not keep the case in court, the plaintiff trustee not yet having rendered an account of her trust to the proper court.

      Eigley & Maurer, for plaintiff.

      E. _J. Grossman and Thompson & Eine, contra.
    ITenry, J.; Winci-i, J.; and Marvin, J., concur.
   This is an appeal from the judgment of the court of common pleas rendered upon a demurrer in an action to quiet title. The plaintiff now seeks to dismiss her petition and moves also dismissal of the cross-petition filed for the first time in this court by the defendant, Essie Montpelier; the other defendant joins plaintiff in this application. The defendant, Essie Montpelier, however, resists the motion to dismiss her cross-petition and the question before us is her right to insist upon the adjudication of her alleged cause of action. The prayer of her cross-petition is as follows:

“Wherefore this defendant prays that plaintiff may be required and compelled to file herein a list or inventory of all the property of said estate in her possession, or under her control, and also an account of her administration thereof since August 1st, 1907; and that said plaintiff be enjoined and restrained from disposing of any of the real estate belonging to said estate, except so much, if any, as this court will find must be disposed of in' order to raise a fund, sufficient to pay the present liabilities of said estate, including plaintiff’s annuity; that in the. event the court finds it is necessary and proper that plaintiff should, dispose of any of said property, that this court retain jurisdiction over the parties hereto and direct plaintiff to report all sales to this court for confirmation, and compel plaintiff to give such bond as may seem to the court to be proper, to the effect that plaintiff will abide by all orders of the court made in reference thereto; that plaintiff be required and directed to hold the proceeds of any real estate belonging to said estate hereafter sold by her upon the same trust on which said estate is now held, and be further directed to pay over to defendant on the 15th day of October, 1909, one-third thereof, and for such other and further relief as this defendant may be entitled to in the premises.”

It will be observed that the original action was, as already stated, an action to quiet title and the relief sought by the cross-petition is not strictly germane thereto. The cross-petition does not question the legal title of the plaintiff at the time the action was brought, but seeks relief in respect to the alleged equitable title of the plaintiff in the same property. .

Section 5069, Revised Statutes, defines a counter-claim thus:

“Affirmative relief can be had by the defendant only on a cause of action arising out of the transaction set forth in the petition or connected with the subject of the plaintiff’s action.”

It is true, of course, in a sense, that the cause of action sought to be asserted in cross-petition arises out of the transaction set forth in the petition, to-wit, a conveyance to Essie Montpelier, by her co-defendant, of an interest in the land described in the petition; yet her alleged right to an accounting from the plaintiff trustee is quite independent of the latter’s right to have her legal title as trustee quieted at the time the action was begun.

But be this as it may, an examination of the answer and cross* petition discloses no such facts as confer upon the defendant, Essie Montpelier, the right to require plaintiff to make an accounting of her trust under the direction of this court. The right of the plaintiff as trustee to dispose of the -property in question, as well as her title to the property in question, as such trustee, terminated on the 15th day of October, 1909. If the plaintiff shall fail to make proper final account of her trust as required by statute, or if it shall be made to appear in the proper forum that she has abused her trust, the cross-petitioner can then obtain full relief, but we think she is not in a position to assert her right to continue, independently of the plaintiff, her litigation in this court.

The petition and cross-petition will therefore be dismissed without prejudice to the right of the defendant, Essie Montpelier, to commence or maintain another action.


text:
    LIABILITY FOR. RENT WHERE ONE OF TWO LESSEES HOLDS OVER.
    Circuit Court of Cuyahoga County.
    John Wageman et al v. Helen V. Stevens et al and Noah Ellen v. Samuel Lees.

    Decided, November 22, 1909.

      Lease — Holding Over — Terms of New Lease — Parties Thereto.

    1. One of two lessees named in a lease can not, by merely holding over after termination of the term of the lease, bind his co-tenant for payment of rent, said co-tenant not participating in the actual occupancy of the premises after termination of the term fixed by the original lease to which he was a party.
    2. One who sues under favor of Revised Statutes, 4995, not as the real party in interest but as the agent with whom and in whose name, as lessor, the original written contract of lease was made, can not maintain an action for rent accruing after the expiration of the express agreement and while the tenant continues as such, merely holding over.
    6r. C. Hafley and Loomis & Pfeiffer, for plaintiffs in error.

      Humphrey & Taylor, Carpenter, Young & Stoelcer, and J. 8. Kohn, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.

      Affirmed without opinion, Wageman et al v. Stevens et al, 85 Ohio State, 490.

   Each of these proceedings involves the liability of a lessee holding over, to pay rent, and requires us to ascertain the true ground of the continued existence of the relationship of landlord and tenant in such case. In either proceeding the parties stand as they did below, and error is prosecuted to reverse a judgment denying recovery for instalments of rent alleged to be due from a hold-over tenant.

The precise question in the first case is whether one of two lessees named in the original written lease, can, by merely holding over, bind his co-tenant, who never participated in the actual occupancy of the premises and who was in fact, though not in form, a mere surety for the payment of the rent reserved.

The question in the second case is whether one who sues under favor of Section 4995, Revised Statutes, not as the real party in interest, but as the agent with whom, and in whose name, as lessor, the original written contract was made, can maintain his action for rent accruing after the expiration of their express agreement and while the tenant continues as such merely holding over.

In B. & O. R. R. Co. v. West, 57 Ohio St., 161, the second and third paragraphs of the syllabus read:

"Where, after the expiration of the term, the tenant holds over and pays rent for a part of another year, without any new arrangement with the landlord, he becomes a tenant for that year at the same rent, and can not terminate the tenancy before the end of the year without the landlord’s consent.
"The obligation of the tenant to pay the rent for the year, in such case, is not within the statute of frauds; the holding over being equivalent to a new entry. ’ ’

And at page 168 of the per curiam opinion, this language quoted later in Gladwell v. Holcomb, 60 Ohio St., 427, 435, is used:

"The tenant by holding over, is regarded as consenting or proposing to enter upon a new term for another year at the same rent and upon the conditions of the prior occupancy and the landlord’s acceptance of the proposed tenancy is presumed from his receiving the rent, or other acquiescence. The agreement arises by implication of law from the conduct of the parties after the expiration of the former tenancy; and, in this respect, is essentially different from those agreements made by parties while in possession under an existing lease, for a new lease to commence in tbe future; as was tbe case of Armstrong v. Kattenhorn, 11 Ohio, 265; and Crawford & Murray v. Wick, 18 Ohio St., 190.
“Here the new agreement grows out of, and is founded upon, the possession evidenced by the holding over, and is therefore referable to it, rather than to the possession under the prior agreement which had expired. The holding over is equivalent to a new entry. ’ ’

We hold therefore that the privity of estate, or contract, or both, which the original instruments created, was terminated with the expiration of the terms therein contemplated and that it is a new and independent agreement, by the real parties in interest which the law implies, as between a tenant holding over and the owner of the land. There is no necessity that the implied agreement should be deemed to be between the same parties as the original lease. The new tenancy arises from the circumstances of the case and the conduct and interest of the parties. True, it follows the terms of the old agreement, but it does not depend upon it. It is only actual occupancy, the continuance of which gives rise to the assumpsit in regard to payment of rent. The obligation does not attach to one who has no participation in such actual occupancy. Neither does it accrue by implication of law to anyone whose interest is merely that of agent for the owner of the premises. The right implied is clearly the principal’s right. He alone is deemed to be the landlord; and in like manner the actual occupant must be regarded as the tenant.

It follows that neither the landlord’s agent as such, nor an original co-lessee who. has never in fact occupied, is an appropriate party to an action for hold-over rent. There is no cause of action by or against such a party; and accordingly the judgments below are affirmed.


text:
    ACTION TO ENFORCE A CONTRACT FOR SALE OF REALTY.
    Circuit Court of Cuyahoga County.
    George W. Smith v. Lillian M. Cotton.
    Decided, November 30, 1909.

      Specific Performance — Contract Must be Enforceable Against Both Parties — Discretion to Refuse Specific Performance.

    1. A contract for the sale of realty is not specifically enforceable in equity at the suit of either party, unless it be enforceable also at the suit of the other.
    2. In such suit, if it appears that there is any want of clearness, or any unfairness in the contract so sought to be enforced, it rests in the sound discretion of a court of equity to refuse specific performance.

      Smith, Taft & Arter, for plaintiff in error.

      Henderson, Quail Siddall, contra.
    Henry, J.; Winch, J., and Martin, J., conenr.
   We have reached the conclusion in this case that the motion interposed by the defendants at the conclusion of the plaintiff’s evidence, for judgment dismissing the petition, should be granted.

A contract for the sale of realty is not specifically enforceable in equity at the suit of either party, unless it be enforceable also at the suit of the other.

Moreover, if it appears that there is any want of clearness or any unfairness' in the contract so sought to be enforced, it rests in the sound discretion of a court of equity to refuse specific enforcement.

The last clause of the contract upon which this action is founded, is as follows:

“It is further agreed that party of the first part will remain as a stockholder and act as manager for the Euclid-Genesee Realty Company, for a period of five (5) years, at a compensation of twelve hundred dollars ($1,200) per year, as heretofore.”

If this language creates any actual or intended contractual relation between the parties we think it is so inseparably connected with the remainder of their agreement as to preclude its being considered an independent covenant or contract.

It is highly improbable that the defendants would have contracted for the services of the plaintiff except in connection with their acquisition from him of the stock in the corporation to which those services were to be rendered.

Neither can'we assume that they would have bargained for the stock in exchange for their land unless they should secure the services of the plaintiff in connection therewith. The stock and the services together must be deemed to be the consideration for the land which they were selling.

Construing, therefore, the entire contract with reference to this clause, if it shall appear that the. object sought to be accomplished by the parties when they inserted this language in their contract is for any reason incapable of accomplishment by the remedy of specific performance, it follows that the entire contract is likewise incapable of such enforcement.

The clause in question has a manifest infirmity in one or more of the three following particulars, to-wit:

It contemplates the employment of the plaintiff by the corporation of which the control was, under the contract, to pass from plaintiff to defendants by the transfer of a majority of the capital stock from the former to the latter. .Such a contract to procure corporate action without regard to the interest of the minority stockholders is clearly against public policy, and void. And if so, an important part of the consideration which the defendants obviously supposed themselves to be bargaining for, fails.

On the other hand, if the covenant be construed as binding upon the plaintiff, it is a contract for the performance of personal services by him, and hence under the well known rule of equity, unenforceable by specific performance.

Finally, if the covenant in question be one in form of words only or merely unilateral in its obligation, it is likewise unenforceable by specific performance.

Thus upon any view the concluding clause of this contract being neither separable from, not specifically enforceable in connection with, the remainder thereof, the entire contract is necessarily rendered incapable of specific performance in equity.

We have deemed it more important to announce our conclusion now than to wait until we could cite and review at length the authorities which we have examined.