text:
    FINDING AS TO THE DOMICILE OF A TESTATOR.
    Circuit Court of Summit County.
    Homer A. Hine v. Martha L. Cowles et al.

    Decided, April 12, 1911.

      Wills—Domicile of Testator—Judgment of Probate Court Conclusive.

    The judgment of a probate court of this state as to the domicile of a testator whose will is probated in said court is conclusive upon the courts of this state, though not binding upon the courts of other states.

      Allen, Waters, Young & Andress, for plaintiff in error.

      Carpenter, Young & Stocker, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.

       Affirmed without opinion, Cowles et al v. Cowles et al, 86 Ohio State, 350.

   Welthia Daniels died in California on November 20, 1906, leaving a. will which she had- executed in Summit county, Ohio, where she formerly lived, appointing the plaintiff executor thereof. Said will was duly probated in this county in January, 1907, and thereafter an authenticated copy was admitted to record in Los Angeles county, California, and an ancillary administrator, with the will annexed, was there appointed to administer assets of the estate there found.

Thereafter a petition was filed in the Superior Court of Los Angeles County,.California, to contest the validity of said will,' and it was there set aside on account of the testator’s alleged incapacity to make it.

Later on, in 1910, a petition was filed in the Common Pleas Court of Summit County, Ohio, by Hine, the executor here appointed, asking for the direction of the court as to his duties under the will. It is conceded that all necessary and proper parties were brought before the court in said action, which is the on¿ now before us on appeal.

The question really raised by the pleadings is whether the record of the Probate Court of Summit County, admitting the said will to probate, is conclusive as to the fact that the testator was domiciled in this county at the time of her decease, or whether evidence should be received on'that subject tending to show that she was a resident of California when she died.

■ In this connection, some of the defendants urge that under the Federal Constitution full faith and credit are to be given to the judgment of the Superior Court of Los Angeles County, California, setting aside the'will, and that by said judgment the executor, ITine, is without authority to act under the said will.

We have here a familiar and interesting example of the conflict of laws.

. That this court is bound by the finding of the probate court of this county, that Welthia Daniels was a resident, of Summit county when she died, there seems to be no doubt.

That court is a court of record and of ample jurisdiction to hear and determine all facts upon which its jurisdiction rests. It was necessary for that court to determine whether the testator was a resident of this county when she died. It heard and determined that fact, and found that she was such resident. No effort has ever been ’made to review said finding, though ample provision has been made therefor by statute. See General Code, Sections 10520, 10521. Woerner on the American Law of A.d-ministration, on page 328, says of probate courts:

“If it is found that the tribunal is one competent to decide whether the facts in any given matter confer jurisdiction, it follows with inexorable necessity that, if it decides that it has jurisdiction, then its judgments within the scope of the subject-matters over which its authority extends, in proceedings following the lawful allegation of circumstances requiring the exercise of its power, are conclusive against all the world, unless reviewed on appeal, or avoided for error or fraud in a direct proceeding. It matters not how erroneous the judgment; being a judgment, it is the law, of that ease, pronounced by a tribunal created for that purpose.”

This statement of the law is perhaps too strong, if intended that the judgment has extra-territorial effect, but is correct as to the effect of the finding upon the courts of the state in which, and according to the laws of which, it was made.

On this subject, Wharton on the Conflict of Lams, 3d Edition, Section 645, says:

“The law, as originally settled in Massachusetts, was that if an administrator or guardian was appointed by a judge of probate, who had no jurisdiction through the want of domicil on the part of the deceased, the whole proceedings were void, and all titles passing under the same null. To correct this, and to give stability to the law, statutes were passed in Massachusetts and Maine, and other states, limiting the time of appeal from probate decisions. Under these statutes, it was held by the Superior Court of Maine, in 1870,- that when administration was commenced in Maine on the assumption that the deceased was domiciled in that state, and there was a final decree of the probate court on the settlement of the fourth account, after due proof, based on this assumption, then the question of domicil must be regarded as conclusively settled, and so far as concerns distribution of Maine assets, and that it was not competent to show that the last domicil was in .another state. But such statutes can not operate extra-territorially so as to invest internationally with domicil a person not- domiciled in the enacting state.”

In the light of the law thus stated, we find nothing in the eases of Overby v. Gordon, 177 U. S., 214, and Tilt v. Kelsey, 207 U. S., 42, cited by counsel for defendants, requiring this court to give greater credit to the decisions of a court of another state than it does to the decisions of a competent court of this state. Furthermore, the judgment of this court, here sought, is to act upon the res, as expressed in the last mentioned case. It is to act upon funds in the hands of the executor and within the jurisdiction of the Probate Court of Summit County, and of this-court. To that extent, the finding as to domicil made

by the probate court of this county, is conclusive, though the authorities cited- show that said finding would not be binding upon the courts of California.

It will be noticed that said cases, as others which have been examined, hold that the adjudication of domicil by the courts of one state have no binding force upon the courts of other states, and their effect must be so limited.

The ease of Willett’s Appeal, 50 Conn., 330, is not reconcilable with the federal cases cited and, had it been followed in California, would have led to a contrary conclusion in the court there.

Objections to the introduction of evidence as to domicil are sustained.

Our conclusions are, that the executor proceed as directed by the will', for the reasons stated, however, because the finding of the probate court here will not be binding upon the courts of California, as to the domicil of Mrs. Daniels, we can not direct him to incur any expense in litigation there.

Decree, see journal.


source: Caselaw Access Project

license: Public Domain

text:
    DISCRETION IN PERMITTING A GRADE CROSSING TO BE CONSTRUCTED.
    Circuit Court of Cuyahoga County.
    The New York, Chicago & St. Louis Railway Company v. The Village of Lakewood.
    Decided, May 15, 1911,

      Railroad Grossing Act—Grade Grossing Permitted—Discretion of Judge.

    A judgment of the common pleas permitting a village to construct a crossing at grade over a railroad, will not be set aside, unless it appears that the trial judge has clearly abused his discretion in so ordering.

      John E. Clarlt, for plaintiff in error.

      Alfred Glum, contra.
    Winch, J.; Henry, J'., and Marvin, J., concur.
   This is a proceeding to review the judgment of the common pleas court, permitting the village to construct a crossing at grade over the railroad at Manor Park avenue in said village.

This court is committed to the general policy of refusing permission for crossings at grade, and had the matter been brought before this court for its original judgment in the matter, it is likely a crossing at grade would not have been permitted at the point mentioned.

The law, however, vests the trial judge with considerable discretion. The evidence before us does not show an abuse of such discretion.

The village made proof of such matters as the statute requires, and the fact that there are twenty-six existing crossings at grade over this railroad within the village may well have inclined the trial judge to conclude that the best way to have all of such crossings abolished, was to put the burden of another one upon the railroad. We do not know such would be the tendency; the whole subject is purely speculative; for that reason we are not disposed to say that the trial judge was clearly wrong in his conclusion.

Judgment affirmed.


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    APPEAL CONSTRUED AS ENTERING AN APPEARANCE.
    Circuit Court of Cuyahoga County.
    Strong, Cobb & Company v. Maier Jaffa.

    Decided, May 15, 1911.

      Suit Against Partnership in Firm Name—Appeal—Change of Style on Appeal—Judgment Valid.

    A partnership being sued in its firm name before a justice of the peace and judgment there being rendered against it, appealed the case to the common pleas court, where the case was’ properly docketed as against the partnership, but the plaintiff filed a petition therein entitling the case as one against certain individuals doing business under said firm name, but no service was had thereon. After-wards default judgment was rendered against the partnership in its firm name. Upon motion to set aside said judgment for want of service on -the individuals and because they did not compose the firm, Held: The appeal by the firm entered its appearance in the common pleas court and the judgment against it is valid.

      T. H. Bushnell, for’ plaintiff in error.

      W. T. Clark, contra.
    Winch, J.; Iíenrí, J., and Marvin, J., concur.

      Affirmed without opinion, Strong, Cobb & Co. v. Jaffa, 87 Ohio State, 504.

   Maier Jaffa sued Strong, Cobb & Company, by its firm name, in a justice court, and recovered judgment. The firm appealed tbe case to the common pleas court, and in due time Jaffa filed a petition therein, entitling it: “Maier Jaffa, plaintiff, v. S. M. Strong, L. A. Cobb, R. L. Cobb and E. L. Strong, partners doing business under the firm name and style of Strong, Cobb & Company, defendants.” The case, however, was properly docketed in said court, as it had been entitled in the justice court.

No effort was ever made to procure service upon the individuals named as partners, nor did they or the firm file any answer to said petition. In due course of time, default judgment was rendered against the firm, and the firm has filed petition in error in this court to reverse said judgment, assigning as error that the individuals named in the petition as members of the firm were never served, nor did they compose the firm of Strong, Cobb & Company.

We do not see what difference this makes to the validity of the judgment against the firm. It had been sued by its firm name before the justice of the peace, and in that name appealed its case to the common pleas court. By the appeal, it duly entered its appearance in said court, and of the petition filed therein it was bound to take notice without further service.

The caption of the petition contained some surplus words, but it stated a cause of action against the firm, and judgment was rendered against it. Why the firm should now complain, we fail to see. Of course the members of the partnership are not parties to the judgment; they can be made such only by action, as provided in Section 11651, General Code.

Judgment affirmed.


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    BUYER. BOUND BY APPLICATION OF PAYMENTS MADE BY THE SELLER.
    Circuit Court of Cuyahoga County.
    Evan H. Hopkins, Receiver of The Carey Construction Co., and The Hunkin-Conkey Construction Co. v. The Cleveland & Pittsburg Coal Co.
    Decided, May 15, 1911.

      Application of Payments—Entire Contract—Material Shipped to Different Jobs.

    Upon a single contract for 10,000 barrels of cement to be delivered at one place, by direction of the «buyer shipments of part was made to different places where it went into buildings and for which, by reason of the failure of the buyer, the seller was obliged to file mechanic’s liens, whereupon it applied previous payments on the entire contract in its discretion, upon the several liens, having no direction from the buyer as to the application of payments. In an action against one who had assumed one of the contracts where the buyer had used cement for which a lien had been filed, Held: It was bound by the application of payments made by the seller.

      Thompson :& Hine,- for plaintiff in error.

      Lang, Cassidy & Copeland, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   This was an agreed case, submitted without action, pursuant to the statute.

It seems that the Cleveland & Pittsburg Coal Company sold 10,000 barrels of cement to the Carey Construction Company, price stipulated being $1.30 per barrel, f.o.b. Cleveland. It shipped the cement to various places, in Cleveland and Detroit, as directed by the construction company, where the latter company had building contracts.

Among other shipments was one of 2,400 barrels to Detroit, on which the construction company paid the freight, amounting to $759.05, and forwarded the receipted bills to the coal company, which agreed to a credit of $547.20, being the freight paid from point of shipment to Cleveland, which it had agreed to pay.

The cement shipped to Detroit was used in the construction of the Fairview Pumping Station job, so-called, which the Carey Construction Company was engaged in building. That company failed, a receiver was appointed, and he, under the authority of court, sold to the Hunkin-Oonkey Construction Company all right, title and interest in said contract, and the latter company assumed and agreed to pay all bills for material in connection with said work.

The Hunlcin Company- claims that said sum of $547.10 overpaid on the freight of said 2,400 barrels of 'cement shipped to Detroit, should be credited as payment on said 2,400 barrels account. The coal company says it has applied said sum oh cement furnished the so-called “Tates” job in Cleveland. The court found with the coal company.

We think this conclusion correct. Here was one account for 10,000 barrels of cement. Various items were charged as shipments were made; credits of payments were made by the coal company on the account generally, until, after failure of the Carey Company, it became necessary to file attested accounts against various jobs where the cement had been used, and the coal company elected to credit this $547.20 on the “Tates” job.

This it had a right to do, in the absence of previous directions from the Carey Company as to the application of said credit. The Carey Company never gave any direction with regard thereto, and we see nothing in the circumstances of the case obviating the necessity for such direction.

Judgment affirmed.


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    'Wlf POLICY OF THE LAW AS TO MEASURES.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel John Buch, v. Charles J. Burns, as Sealer of Weights and Measures of the City of Cleveland.
    Decided, May 15, 1911.

      Sealer of Weights and Measures—Standard- Half Bushel—Rectangular Boxes Not SealaMe.

    (The city sealer can not be required to seal rectangular wooden boxes having exactly twice the cubic contents of the standard half bushel.
    Lang, Cassidy & Copeland and Geo. 0. Willeii, for plaintiff in error.

      N. L>. Baker, contra.
    Winch, J.; PIenry, J., and Marvin, J.; concur.
   The relator asks that the city sealer be required to seal certain rectangular wooden boxes, each 20 3-4 inches long, 13 inches wide, a fraction less than 8 inches deep, and containing 2150.42 cubic inches, which he alleges have exactly twice the capacity of the standard half bushel.

He says that he is using these boxes as receptacles in which to expose and offer for sale garden products, such 'as potatoes and onions, which are usually sold by heaped measure.

The bushel does not appear to be recognized as a unit or standard of measure in this state. Section 6414, General Code, provides that “the unit or standard measure of capacity for substances other than liquids, from which all other measures of such substances shall be derived and ascertained, shall be the standard half bushel measure, furnished this state by the government of the United States, the interior diameter of which is thirteen inches and thirty-nine fortieths of an inch, and the .depth is seven inches and one twenty-fourth of an inch. ’ ’

General Code, Section 6415. “The peek, half peck, quarter peck, quart and pint measures shall be derived from the half bushel measure by dividing it and each succeeding measure by two.”
General Code, Section 6416. “Articles usually sold by heaped measure shall be heaped in a conical form as high as such articles permit.”

General Code, Sections 7965 to 7968 inclusive, provide that the professor of physics in the state university shall be, ex officio, state sealer; that standards of weights and measures adopted by the state shall be deposited in a suitable room at the university; that copies of the original standards shall be procured by the state sealer for the use Of each county in the state, and be-delivered to the auditor thereof, as follows:

' ‘ ‘ One-half bushel measure, of one-eighth inch copper, with brass rim; one gallon measure, of one-sixteenth inch copper, with brass rim and handle; one-half gallon, one quart, one pint, and one-half pint measures, to be made in the same manner and of the same material. The state sealer shall furnish like copies of the original standards to the sealer of any city or village upon application therefor.”

General Code, Sections 4318 to 4322 inclusive, provide for the appointment of a sealer of weights and measures in cities and villages, and his duties.

General Code, Section 4322, reads:

“The sealer of weights and measures shall compare all weights and measures brought to him for that purpose with the copies in his possession, and when such weights- and measures are made exactly to agree with such copies, he shall seal and mark them.”

General Code, Sections- 3616 and 3651, provide that municipal corporations shall have power

“To regulate the weighing and measuring of hay, wood and coal, and other'articles exposed for sale, and to provide for the seizure, forfeiture, and destruction of weights and measures, implements and appliances for measuring and weighing, which are imperfect or liable to indicate false or inaccurate weight or measure, or which do not conform to the standards established by law, and which are known, used, or kept to be used for weighing or measuring articles to be purchased, sold or offered or exposed for sale.”

The petition sets forth certain sections of the ordinances of the city of Cleveland, to-wit, 1415 to 1421 inclusive, which relate to weights and measures, but we find no specific direction therein that the city sealer shall provide any standard for a bushel. On the contrary, the standards adopted by the state of Ohio are made the test by which all weights and measures shall be compared and determined.

There are some provisions of these ordinances making it unlawful for any person to expose for sale any commodity, article or articles which are commonly sold by measure, in any measure or utensil or receptacle, which is not tested, marked and sealed. Whether this ordinance is valid in so far as it requires receptacles not used aS measures to be sealed need not be decided. While this question is squarely raised by demurrer to the petition, yet, as it appears clearly from the petition that the boxes described, when heaped up, do not measure as much as two heaped-up circular half bushels, of the standard prescribed by law, the relief prayed is denied on that ground alone.

A rectangular box can not be heaped in a conical form, as required by law, and if heaped at all, will not produce the-result of a circular measure that is heaped.

It may also be suggested that the law seems to require that all measures be of circular form, instead of square or rectangular, and it is demonstrable that more articles of some size, as potatoes, will go into a -round receptacle than into a square one of 1 he same cubic contents. This is so because of the loss of space at the four corners.

This decision is not based upon the proposition that the city sealer can not be required to seal any measure of capacity greater than one-half bushel, though, speaking for myself alone, I am satisfied that such is the law, as I am that the ordinance is invalid in so far as it makes it unlawful to expose any commodity for sale in a receptacle which is not sealed, provided said receptacle is not used as a measure.

It would appear to be the policy of the law that measures should be of fixed shape and of limited capacity to the end that the people maj'- become familiar-with them, and able to detect false measures at a glance.

The demurrer to the petition is sustained and relator not desiring to plead further, the petition is dismissed.


text:
    ADMINISTRATOR. REQUIRED TO SHOW AUTHORITY TO SELL.
    Circuit Court of Summit County.
    W. Y. Humphries et al v. H. E. Loomis et al.
    Decided, April 12, 1911.

      Sale of Stock by Administrator—Buyer May Require Proof that Seller is Administrator and Has Order to Sell.

    One who has agreed to buy stock belonging to an estate has a right to refuse to accept it until he is furnished proof that the person agreeing to sell it is administrator of the estate and has obtained an order of the proper court fixing the price at which the sale may be made.

      Slabaugh, Seiberling cP; Huber and John P. Hunter, for plaintiffs in error.

      Voris, Vaughn d? Voris, Rogers & Roivley and 0. C. Benner, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   This was an action for the purchase price of 30,000 shares of the capital stock of the Powell- Coal & Coke Co. at an agreed price of $100,000 which plaintiffs claimed to have sold and delivered to the defendants under a certain contract with them.

In the common pleas court a verdict for the defendants was directed at the close of the plaintiff’s evidence.

Very interesting propositions of law have been argued in this court regarding the proper legal effect to be given to said contract, but, for the first time in this court we are told, objection to the validity of said contract is based upon a lack of valid signatures thereto on the part of the plaintiffs.

If this point is well taken, a verdict for the defendants was properly directed, and it is unnecessary to determine other matters.

Among other signatures- to the contract appeal's the following: “Estate of Richard M. Jennings, Evan T). Jennings, administrator, 449 shares.”

The answer of the defendants admits that they signed the alleged contract, but says that it “was never delivered either by said plaintiffs or said defendants, and never at any time became of any validity, or gave rise to any liability whatsoever on the part of said defendants or either of them.” • It further alleges that ‘ ‘ said plaintiffs did not execute and delivér said instrument in writing to said defendants on or before October 15th, 1907 (the day set for the completion of the negotiations), but on the contrary, never did execute and deliver same.”

Proof was made that 449 shares of said stock stood in the name of Richard M. Jennings, but no proof was offered that Evan D. Jennings was administrator of his estate, or that he had any order of the proper court of Pennsylvania authorizing or directing him to sell it or to enter into a contract for the sale thereof.

No evidence was offered as to the laws of Pennsylvania governing administrators in the sale of shares of stock belonging to the estates of deceased persons, so we must assume that its laws on the subject are the same as the laws of Ohio. Section 10704, General Code, provides:

“The executor or administrator may sell either at public or private.sale, railroad stock or other stock or shares in a corporation, but if he sells- at private sale, it must be for a sum not less than for that purpose is fixed by an order of the probate court. ’ ’

Such being the law, it seems that one buying stock belonging to an estate has a right to demand proof that the person offering to sell such stock is administrator of the estate,-and has an order of the proper court fixing the price at which'the sale may be made.

No proof of these facts having been presented to the defend ants, they had a right to refuse to go on with the contract, and no evidence being adduced on the subject at the trial, the court properly held that the defendants were not bound by the contract, for their agreement was for all the stock and the Jennings stock was never so offered to them as to bind the Jennings estate.

The ease of Hicks v. Hicks, 11 W. L. B., 72, cited by counsel for plaintiffs in error, is not in point. There Judge Blandin held that an executed sale of stock made by an administrator without an order from the probate court, but afterwards reported to the court in the administrator’s account, which was approved by the court, would not be set aside, the purchaser having paid full value for the stock, and there being no fraud alleged. '

But here we have a contract which the court is asked to enforce, notwithstanding the administrator had not complied with the plain direction of the law. Relief to him, under such circumstances, should be denied; the purchaser has asked no more than' he had a right to ask, and the administrator has neglected his plain duty.

For the reasons stated, because it seems to be decisive of the case, and without consideration of the other important legal propositions so ably argued by counsel, the judgment of the common pleas court is affirmed.


text:
    VALIDITY OF THE LAW RELATING TO SEINES AND FISH TRAPS.
    Circuit Court of Summit County.
    William Winkleman v. State of Ohio.
    Decided, April 12, 1911.

      Constitutionality of Fish Law.

    Section 1426, General Code, making it an offense to have in possession a fish trap in the inland fishing district of the state, when considered in connection with subsequent sections making exceptions thereto, is constitutional.

      Voris, Vaughn cO Voris, for plaintiff in error.

      Warren Thomas and F. J. Rockwell, contra.
    Winch, J.; Henry, J., and.MARViN, J-., concur.
   Plaintiff in error was tried before a justice of the peace, and found guilty of “having in his possession three certain devices for catching fish, to-wit, three fish traps, contrary to the statute in such case made and provided. ’ ’ lie was fined twenty-five dollars.

Upon error to the common pleas court, the judgment of the justice was affirmed, and this proceeding is brought for the purpose of reviewing said judgment.

It is claiméd that the evidence did not warrant a conviction: that while Winkleman had made the trap nets, and had them in his possession, his possession of them was perfectly innocent, as he did not intend to use them unless, upon legal advice which he was awaiting, it was found that he had a right to use them in a stream which ran through his father’s farm.

This claim is rather fishy; one of the traps had been used; the justice was warranted in his conclusion as to the purpose the young man intended them for, if any offense was charged in the affidavit.

This brings us to the main contention in the case:

It is claimed that the mere possession of fish traps is not sufficient to constitute an offense; that the state must allege and prove an intention on the part of the accused to use the traps for an unlawful purpose. It is said that any other construction of the statute would make it unconstitutional, contravening Article T, Section 1 of the Bill of Rights, which guarantees the right to possess, enjoy and protect property.

We do not so view the statutes on this subject. Section 1426, General Code, provides that no person shall have in possession a fish trap in the inland fishing district of this state. Summit county is within said distrct.

Section 1456 provides that it is not unlawful to take fish in any manner in the ponds or lagoons formed by the receding waters of any river, when such ponds and lagoons no longer have any connection with the channels of such streams, nor in private artificial fish ponds or privately owned lakes.

Section 1457 provides that it is not unlawful for the owner of a private artificial fish pond .to have traps in his possession for use therein, and that it is not unlawful to have in possession fish traps to be used in catching fish in the Ohio river, Lake Erie and certain of its bays, when the traps are kept within one mile of said waters.

Section 1458 says that it is not unlawful for manufacturers or dealers to have fish traps in their possession, when kept in their regular places of business, or for common carriers to have them in their possession for transportation.

Section 1461 provides, that the-finding of a trap had in possession in violation of law shall-be prima facie evidence of the guilt of the person owning, using or claiming such property.

We think these exceptions are ample and reasonable-so that the law on this subject is entirely within the Constitution.

Nor was it necessary that the affidavit contain negative averments as to the many exceptions enumerated. Becker v. State, 8 O. S., 391; Billingheimer v. State, 32 O. S., 435; State v. Hutchinson, 55 O. S., 573; Hale v. State, 58 O. S., 676.

The accused made no effort to bring himself within any of said exceptions; indeed, as first stated, the evidence showed that his possession of the traps was not an innocent possession, and warranted his conviction.

Judgment affirmed.


text:
    RIGHT TO EQUITABLE SET-OFF.
    Circuit Court of Cuyahoga County.
    The Massachusetts Bonding & Like Insurance Company v. Cornelius A. Fish et al.
    Decided, June 2, 1911.

      Equitable Set-off—Note Held by Bank Assigned to Another After Maturity—Deposits in Bank Set-off Against Same.

    Where husband and wife are jointly indebted to a bank upon a promissory note and one of them deposits money to his own credit in the bank -and it, after maturity of the note, assigns the same to another, of which assignment the makers of the note have no notice, and one of them continues to make'deposits in the bank which later becomes insolvent, upon suit being brought upon the note, the deposits made in the bank both before and after the assignment of the note may be set off against- the amount due thereon.

      Brady, Dotuling & Hole, for plaintiff in error.

      While, Johnson & Cannon, contra.
    Winch, J.;-Henry, J., and Marvin, J., concur.
   Tbe judgment in this case must be affirmed.

‘ ‘ The holder of a promissory note, who took it after maturity, holds it subject to every objection, including equitable set off, to which it was subject in the hands of his assignor.” Baker v. Kinney, 41 O. S., 403.
‘ ‘ In equity there are many exceptions to the technical rule that joint and senarate debts can not be set off against each other, and insolvency is a sufficient ground for such exception.” 12 Michie Digest, 328, and cases cited.

The insolvency of the bank was sufficiently shown by proof of its assignment for the benefit of_its creditors.

The full amount of the deposit was properly set off against the note, including that part deposited after the transfer of the note to the bonding company, but before notice thereof to the makers.

In Follett v. Buyer, 4 O. S., 586, 591, it is said by Judge Thurman:

“When an overdue or non-negotiable note is assigned, the assignee takes it subject to all the equities existing between the payee and the maker; and hence it is competent for the latter, notwithstanding the assignment, to show that it was obtained by fraud, or without consideration, or that before he received notice of the assignment it had been paid or otherwise discharged. So, too, he may set off any liquidated demands which he held against the payee when he first obtained information of the assignment, ’ ’ etc.

No prejudice resulted from erroneous rulings on evidence called to our attention; they all related to the claim that Fish was principal and his wife surety on the note. The right to equitable set off in this case grows out of the insolvency of the bank and not the relation of principal and surety on the note. Evidence erroneously admitted on the latter point would have no prejudicial effect upon the case; there was enough competent evidence to warrant the judgment without it.

Judgment affirmed.


text:
    NOTE NEGOTIATED AFTER CONSIDERATION THEREFOR HAD FAILED.
    Circuit Court of Cuyahoga County.
    Helena Kuchenbacher et al v. Matilda A. Gill.
    Decided, June 2, 1911.

      Promissory Note—Failure of Consideration—Notice to Holder of Note —Burden of Proof.

    In an action upon a promissory note by an endorsee thereof, when it is shown that consideration for the note has failed, the burden is then upon the plaintiff to show that she had no notice of such failure of consideration at the time she became the holder of the note.

      L. R. Katz, George Welch and Richard Inglis, for plaintiff in error.

      Fred Besb erg, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   Plaintiffs in error were defendants below. The action was on a promissory note, made since the enactment of the negotiable instrument code, and transferred to the plaintiff, who claimed to be a holder thereof in due course.

The defense was failure of consideration, the note having been given in payment for the erection of a house which the payee agreed to erect, but never completed. Evidence was introduced tending to establish the defendants’ claim of failure of consideration, and the plaintiff had notice' thereof, when she received the note.

On the .burden of proof, the- court charged the jury that the burden was upon the defendants to show not only failure of consideration, but notice thereof to the holder.

Counsel for plaintiffs in error admit that the burden was on them to show failure of consideration, but urge that the burden was with the holder of the' note to show that she had no notice thereof.

The question seems settled by Sections 8164, 8160, 8157 and 8161 of the General Code, parts of which, germane to the inquiry in hand, read as follows:

"Section 8164. Every holder is deemed prima facie to be a holder in due. course, but when it is shown that the title of any person who negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims, acquired the title as a holder in due course.”
Section 8160. ‘ ‘ The 'title of a person who negotiates an instrument is defective when he negotiates it in breach of faith, or under such circumstances as amount to a fraud. ’ ’

Here the defendants gave evidence tending to show that the payee negotiated the note after the consideration thereof had failed; this was bad faith and amounted to a fraud on the part of the payee, and so his title was defective under Section .8186 and put the burden upon the holder under Section 8164, to prove that he acquired the title as a holder in due course.

Section 8157 says that "one is a holder in due course under the following conditions: * * * 4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”
Section 8161. “To constitute notice of any infirmity in the instrument, or defect in the title of the person negotiating it, the person to whom it is negotiated must have had actual knowledge of such facts, that his action in taking the instrument amounted to bad faith. ’ ’

Prom these four sections the conclusion seems logically to follow that if it is shown that the consideration of the note has failed, then the burden is on the holder to prove (8164) that he had no notice (8157), i. e., actual knowledge (8161), that the payee of the note who negotiated it to him had negotiated it in breach of faith, or under such circumstances as amount to fraud (8160). In other words, he must show that he had no knowledge of such facts that'his action in taking the instrument amounted to bad faith (8161).

Applying this conclusion to the case in hand, if it was shown that the consideration of the note had' failed, then the burden was on the plaintiff to show that she had no notice of such failure of consideration at the time of her becoming the holder thereof.

For error in the charge, the judgment is reversed and cause remanded for a, new trial. 0


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    COLLECTION OF COSTS FROM COUNTY IN WORKHOUSE CASES.
    Circuit Court of Cuyahoga County.
    Charles P. Salen v. State of Ohio, ex rel, etc.
    Decided, June 2, 1911.

      County Commissioners—Contract for Care of Prisoners in Workhouse— Such Prisoners Pay their Pines by their Labor—Receipt Thereof by County Treasurer—Clerk's Pees.

    1. The county commissioners may contract for the care of persons convicted of misdemeanors, in a workhouse of a municipality within the county.
    2. The provision in Section 4151, General Code, for sentencing a prisoner to the workhouse “until he be discharged at the rate of sixty cents per day for each day of confinement,” means that the prisoner pays his fine, at the rate of sixty cents a day, by his labor.
    3. Where it appears that .the amount to be paid by the county for the care of prisoners in the city workhouse is decreased by the amount realized from the work of the prisoners, the clerk of courts may collect of the county treasurer his fees in cases in which said prisoners were convicted.

      Smith, Taft Arter, for plaintiff in error.

      John A. Cline and W. D. Meals, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   The prosecuting attorney of Cuyahoga county brought an action against Charles P. Salen, to recover from him certain fees alleged to have been unlawfully charged and collected by him as clerk of the courts of said county.

The clerk answered, setting up his defense, and a demurrer to his answer to the first cause of action stated in the petition was sustained. This is the only ruling in the case brought to this court for review.

Said answer to the first cause of action is as follows:

“Defendant admits that at various times while he has been county clerk he has presented to the board of county commissioners, bills for costs accruing to him as said clerk, aggregating $1,980.43, and that these costs accrued in actions wherein the defendants were convicted of misdemeanors and were actually sentenced to the workhouse, under the control of the city of Cleveland, a municipal corporation within the limits of said county, and that in each instance the defendants were unable to pay said costs, and said defendants were confined to the workhouse until they were discharged therefrom, by reason of the provisions of the law entitling them to a credit of a per diem allowance of 60c per day; that each of said bills was allowed by the board of county commissioners, and defendant further avers that said allowance was made on the approval of the other county officers, and alleges that said allowance was in all respects in accordance with the law and made with full authority.
“Defendant further alleges that the county of Cuyahoga has no workhouse, and that it has an agreement with the city council of the city of Cleveland, and that by reason thereof the amount to be paid by the county for the care of said prisoners is decreased in the amount realized from the work of said prisoners.
“Defendant further alleges that an objection was heretofore made to the allowance of claims of this character at the time a predecessor of this defendant was in office, to-wit, one Henry W. Kitchen. That therefore said Kitchen caused to be instituted in the court of common pleas an action in mandamus against the board of county commissioners, being cause number 22269 in said court. That said cause came on to be heard before Hon. G. M. Barber, then a judge in the Court of Common Pleas of Cuyahoga County, Ohio, and in said action he expressly ordered the commissioners to pay to the relator, ‘in every case in which judgment was affirmed, the costs paid by plaintiff in error either by labor in the workhouse of the city of Cleveland, or otherwise.’ That said judgment is unreversed and still in full effect and force, and a complete determination of the first cause of action, and has been generally acquiesced in by all of the officers ■of Cuyahoga- county having to do with the allowance of claims of this character, until the state board of examiners determined in their minds that the decision of the court heretofore made was not in accordance with the views held by said board.”

Now it is said that this answer is bad for several reasons:

First. 'Because the statute gives no authority to the county commissioners to make a contract for care of persons convicted of misdemeanors, in a workhouse of a municipality within the county.

The point appears to be well taken on the face of the statute, which is now General Code, Section 12384, and in fact reads as follows:

“The commissioners of a county, or the council of a municipality wherein there is no workhouse, may agree with the city council, or other authority having control of the workhouse oí a city in any other county, or with the board of district workhouses, having a workhouse, upon what terms and conditions persons convicted of misdemeanors or of the violation of an ordinance of such municipality having no workhouse, may be received into such workhouse under sentence thereto.”

Of course, this result was not intended by the Legislature. Its purpose was to authorize county commissioners to contract with the authorities of workhouses within the county if any, or without the county, if none within. This seems clear from an inspection of Section 4128, General Code, which reads:

“When a person is convicted of an offense under the law of the state and the tribunal before which the conviction is had is authorized by law to commit the offender to the county jail, the court may sentence the offender to the workhouse, if there is such in the county.”

In the case of Kimbleawecz v. State, 51 O. S., 228, 229, this statute was held to mean that a defendant convicted in Cuyahoga county should be sentenced to the Cleveland workhouse. Indeed, this court, in ease No. 3924, City of Cleveland v. Commissioners of Cuyahoga County, affirmed by Supreme Court without report, 80 O. S., 752, specifically held that the commissioners of Cuyahoga county are authorized to contract with the council of the city of Cleveland for the care of prisoners in the Cleveland workhouse.

Second. It is said that the provisions of law respecting persons in workhouse working-out their fines, do not accomplish a payment of said fines inuring to the benefit of the county. The statute in question is now Section 4151, General Code, the last clause of which reads as follows:

“In all eases where a fine may be imposed in punishment of an offense, in whole or in part, and the court or magistrate could order that such person stand committed to the jail of the county until such fine and the costs of prosecution are paid, the court or magistrate may order tliat such person stand committed to the workhouse until such fine and costs are paid, or until he be discharged at the rate of sixty cents per day for each day of confinement, or be otherwise legally discharged.”

The question is whether the phrase “until he be discharged at the rate of sixty cents per day for each day of confinement” intended that the prisoner pay his fine at the rate of sixty cents a day, by his labor, or is a mere provision for discharge, so that the prisoner be not confined for life.

A test of this question might be invented by putting it in another form, and assuming a situation which would call for its incidental adjudication.

Suppose a man had been fined $18 and committed to the workhouse until the fine should be paid. At the end of ten day’s confinement a friend offers to pay his fine for him. How much must be paid to procure his discharge, the full amount of the fine, $18, or $12, the balance after deducting the ten days at sixty cents per day.

Judge Okey in the case of Cleveland v, Jewett., 39 O. S., 271, at 272 said:

“A person thus committed to a workhouse may, at any time, pay the amount or balance of his fine and costs in money and obtain a release.”

The answer to the hypothetical question is thus clearly seen to be $12. Hence, the prisoner pays his fine at the rate of sixty cents per day.

In order that the clerk may collect his fees of the county, it must also appear that the county treasury has received the fine thus paid by-the workhouse prisoner, and on this point the clerk’s ■answer alleges that by reason of said agreement with the city council of the city of Cleveland “the amount to be paid by the county for the care of said prisoners is decreased in the amount realized from this work of said prisoners.”

The truth of this allegation is admitted by the demurrer. We think it completes the clerk’s defense, and entitles him to the fees claimed. - :

The demurrer to the answer to the first cause of action should have been overruled, and for error in sustaining it the judgment is reversed.


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    ERRONEOUS VERDICT HELD TO HAVE CAUSED NO PREJUDICE.
    Circuit Court of Cuyahoga County.
    E. E. Stoneman v. The Ohio Cultivator Company.
    Decided, June 2, 1911.

      Counter-Claim—-Nominal Damages—Costs.

      A verdict was erroneously directed against a defendant on a counterclaim under which he had shown himself entitled to nominal damages only; Held: No prejudice arose therefrom because it affected the question of costs only, and the costs were properly assessed against the defendant on the plaintiffs claim, set up in the petition.

      Frank G. Scott, for plaintiff in error.

      Hidy, Klein <6 Harris, contra.
    Winch, J.; Henry,' J., and Marvin, J., concur.
   Stoneman bought a hay press of the cultivator company, and gave his note for $150 in part payment thereof. He afterwards sold the hay press to one Kerruish, but as under agreement with the cultivator company, title to the hay press was to remain in it until the entire purchase price was paid, he asked and obtained the cultivator, company’s consent to a transfer of title of the hay press to Kerruish, who gave his own notes for $338.40 secured by a chattel mortgage covering the hay press, direct to the cultivator company. Stoneman claims the company agreed to accept Kerruish’s note in payment of his note, and to release him, but this is denied by the company. Kerruish failed to pay his notes when due, and the company thereupon sued Stoneman on his $150 note.

Stoneman answered, admitting the note, but setting up the transaction with Kerruish as a defense thereto. He also set up in his answer two counter-claims, one asking damage for the company’s negligence in prosecuting a suit against Kerruish for replevin of the hay press, and the other praying compensation for his services in locating the mortgaged property and atempting to save its possession. A reply denied these allegations. The issues were tried to a jury, and at the close of all the evidence, a verdict was directd for the plaintiff for the amount due on Stoneman’s note.

This action of the court was proper, so far as the evidence of Stoneman as to the Kerruish transaction was concerned. He failed to show that the Kerruish notes were taken in payment of his note. On the contrary, he proved that the Kerruish notes and chattel mortgage were taken as collateral security to his note.

It seems, however, that he made out a case on the first counterclaim, entitling him to nominal damages for the company’s negligence in and about the collections of the Kerruish notes. Roberts v. Thompson, 14 O. S., 1.

He might have been entitled to more than nominal damages if he had shown that the hay press was of any value or that Kerruish was insolvent. It may be that Stoneman can not collect the Kerruish notes, a' surrender of which he in entitled to upon payment of his own note.

Though there was error in directing a verdict for the plaintiff below, it was not prejudicial to plaintiff in error.

Being entitled to nominal damages only on his counter-claim, a submission of it to the jury Avould not have changed the result of the case, for costs would go against him in either event.

Certain rulings on evidence have been called to our attention, which seem to have been erroneous, but as they all referred to the issue on the counter-claim, and did not affect'the amount of damages thereunder, no prejudice aróse therefrom.

Judgment affirmed.


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    REMEDY UNDER FAILURE OF WARRANTY OF A HORSE.
    Circuit Court of Cuyahoga County.
    John H. Smart v. George R. Teeple.
    Decided, June 2, 1911.

      Warranty of Horse—Option to Return Horse and Receive Money Back— Measure of Damages—Special Damages.

    1. Where a horse is sold'under warranty and one of the conditions of the sale is that the purchaser if not satisfied with the horse after trial thereof, might return him the next day and receive his money back, the purchaser lias his election, upon breach of the warranty, to return the horse and have his money back, or keep the horse and sue for damages arising from breach of the warranty.
    2. In an action for breach of warranty of a horse, the measure of damages is the difference between the value of the horse, if it had been as represented, and its value as it actuálly was.
    3. In an action for damages for breach of warranty of a horse, the plaintiff may show special damages suffered by reason of his carriages being injured by the actions of the horse, and expenses in attempting to cure the horse of distemper.

      Smart, Marvin <& Ford, for plaintiff in error.
    . Squire, Sanders c@ .Dempsey, contra.
    Wincii, J.; Henry, J., and Marvin, J., concur.
   This was an action for damages for breach of warranty of a horse, the defendant denying the warranty and breach thereof; he also alleged that one of the conditions of the sale of the horse was that the purchaser, if not satisfied with the horse after trial thereof, might return him the next day and receive back his money.

There was evidence tending to prove the warranty, its breach, and that the condition mentioned was made, but that the plaintiff refused to return the horse and receive his money and elected to keep the horse and sue for damages rising from breach of the warranty. Verdict and judgment was for the defendant.

The court charged the jury that “if Smart was told at the time of the sale, that if he did not like the horse he might return him, then it was the duty of Smart to so return the horse and get his money, and this was a condition precedent to his right to sue for breach of warranty. ’ ’

This was error; the condition was that the purchaser might return the horse; it was optional with him to do so. The law on this subject is well stated in 2 Mecham on Sales, 1807:

“In eases where the language is permissible and not mandatory, it is well settled that the buyer, at his option, may avail himself of the special remedy, or waive it and sue at law for the breach of warranty.” See also 24 Am. & Eng. Enc. of Law, 1154, and cases cited.

The authorities submitted by counsel for defendant in error are all in accord or consistent with this rule.

The court also erred in his charge as to the measure of damage, which should have been stated as the difference between the value of the horse, if it had been as represented, and its value as it actually was.

The horse having been bought at a well advertised auction sale, the court said: '

“If it was an open market sale, properly advertised, wasn’t the purchase price of this horse the fair market value of the horse ? That is for you to determine from the evidence in this cause, gentlemen. I am not going to say to you that as a matter of law, that was the fair market value of this horse; but I say you must take all things into consideration to show whether or not it was not the fair market value of this horse.”

This was misleading, very unfair and extremely prejudicial to the plaintiff.

The court also erred in refusing to admit evidence of special damages' suffered by the plaintiff by reason of damage done -to his carriages by the actions of the horse and expenses in attempting .to cure the horse of distemper. 9 C. D., 218.

For error in the charge, as indicated, a,nd for error in ruling on evidence, the judgment is reversed and the cause remanded for a new trial according to law,


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    SERVICE UPON A RAILWAY COMPANY IN ANOTHER. COUNTY.
    Circuit Court of Franklin County.
    The State of Ohio, ex rel Attorney-General, v. The Hocking Valley Railroad Company et al.
    Decided, December 2, 1912.
    1. A return of service of summons upon an agent of a railway company is defective, if it is does not show that the agent served was the agent of the company in the county in which the service was made and that the road runs into or through that county.
    2. It is within the option of-a party'causing a summons to issue to another county to fix the return day on the third or fourth Monday, when he has reason to believe the usual return day will not allow time for service.

      Timothy 8. Hogan, Attorney-General, M. A. Daugherty and Frank Davis, for plaintiff.

      Lawrence Maxwell, for C. & 0. Railway Co.

      Wilson & Rector, for H. V. Railway Co.

      Doyle & Lewis, for L. S. & M. S. Railway Co.

      T. P. Linn, for K. & M. Railway Co.
    Dustin, J.; Ferneding, J., and Allread, T., concur.
    Heard on motion to quash service on the Chesapeake & Ohio Railroad Company.
   We are of the opinion that the third point urged in behalf of the motion to quash the service on the Chesapeake & Ohio is well taken, viz., that the return does not show service upon defendant’s agent in a county through or into which such road passes; or that the agent served was an agent in said county.

Nor does the fact appear in the petition that the said defendant operates its road in Hamilton county; and we can not take judicial knowledge of it.

We construe Section 11283, General Code, as permitting the party causing a summons to be issued to another county to have it returnable on the third or fourth Monday, at his option, if he finds or believes that the fixing of the usual return day will not allow sufficient time for service.

It is entirely for the benefit of the party issuing the service, and the party served can not complain if the earlier and usual day is selected.

Motion to quash service sustained.


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    APPROPRIATION BY RAILWAY OF LOTS RESTRICTED TO RESIDENCES ONLY.
    Circuit Court of Cuyahoga County.
    Mary Vanetten v. The Cleveland Short Line Railway Company; and J. Frank Masters v. The Cleveland Short Line Railway Company.

    Decided, July 6, 1911.

      Restrictions in Deed—Railroad Company Appropriation—Not an Interest in Land.

      A restriction by covenant in deeds for lots to their use for residences only, under a general plan of the original grantor, is not such an interest in the lots as requires its appropriation before a railroad company owning the lots can construct a railroad upon them.

      H. M. Roberts, for plaintiffs.

      Kline, Tolies <& Morley, contra.
    .Winch, J.; Norris, J., concurs; Metcalfe, J., dissents.

      Affirmed without opinion, Vanetten v. Cleveland Short Line Railway Co., 86 Ohio State, 323.

   A majority of the court is of the opinion that the plaintiffs are not entitled to the relief they pray for.

Speaking for myself alone, I believe that the judgment in the ease of The Cleveland, Short Line Railway Company v. Duncan, decided April 25th, 1911, 9 O. L. B., 34, is not based solely upon the proposition that the lot owners were guilty of laches in bringing their suits. The journal entry in that case reads;

“On account of such laches, and the character of the alleged interest which plaintiffs below allege they own in said allotments and thé several lots thereof, to-wit, a restriction by covenant in the deeds for said lots to their use for residences only, under a general plan of the original grantors, the plaintiffs are not entitled to the injunction prayed for.”

While still believing, as a lawyer, that the rights of the plaintiffs amount to an "easement or interest” in the lots purchased by the railroad company, to be used as a part of its right-of-way, as expressed in General Code, 11039, yet, as a judge, obedient to.the law as announced by the Supreme Court, I bow to its conclusion, necessarily deduced from said decision, as 1 believe, that plaintiffs have no such interest iri said premises as require an appropriation thereof before the railroad company can construct its railroad thereon.

The question is not without doubt/ It is to be regretted that no opinion was prepared in the Duncan case, for we are unanimous in the opinion that there is no element of laches to be found in the facts of the two cases' now before us.

Judge Metcalfe dissents, believing that the Duncan ease adjudicates only the question of laches. If he is right as to the force and effect of said judgment of the Supreme Court, there is no flaw in the reasoning by which he reached a conclusion opposite to that of the majority of the court.

The petitions in both cases are dismissed.


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    HOW TO MAKE A RETRACTION AVAILABLE AS A DEFENSE IN A LIBEL SUIT.
    Circuit Court of Cuyahoga County.
    The Akron Democrat v. Lawrence Conrad.
    Decided, April 15, 1907.

      Libel—Retraction—Excessive' Verdict.

    1. A retraction of a libel, to be available as a defense, must be unequivocal and refer distinctly to the original article.
    2. A verdict for $500 in a libel case is too much under circumstances shown here.
    Marvin, J.; Winch, J., and ITenry, J., concur.
   The parties here are reversed from the order in which they appeared in the court below, but will be spoken of in this opinion as they weré in the court below; that is, the plaintiff in error will be spoken of as the defendant, and the defendant in error will be spoken of as plaintiff.

The defendant is the publisher of a daily newspaper having a large circulation in the city of Akron and elsewhere. In its issue of -—, it published an article headed in large type. indicating that a mystery had been solved in reference to the disappearance from Akron of one Lawrence Conrad, a former resident of Akron. The article then went on to say that one resident of Akron. The article then went on to say that one Lewis, a former resident of Akron, had recently visited in the. city, and had stated to a reporter of the newspaper published by the defendant, that Lawrence Conrad, whose schoolmate he had been at the Broadway school house at Akron, years ago, was recently seen by him at a town named in Nevada. The article went into details as to how Lewis came to see him, and then stated that Lewis further said that within a day or two after seeing Lawrence Conrad, he saw an account in a newspaper published near the place where he saw Conrad, that three men had been engaged in a bank robbery, and that one of the robbers had been killed and that a picture of the robber thus killed was published in the paper; that he (Lewis) at once recognized it as Lawrence Conrad. Then the newspaper went on to say that Conrad had been missing from Akron for some eight or nine years; that his ■family though he might have enlisted in the army and navy during that time and been killed, and that they had made efforts to ascertain through the army and navy departments of the government whether this was a fact, but had been unable to learn that it was,' and that though this publication would bring disgrace upon his name and pain to his relatives and friends, yet it

■ cleared up the mystery of his disappearance-, for the article stated, that during all the time he had been absent from Akron, his family had failed to hear from him.

The plaintiff sued the defendant for this publication as a libel, and stated in his petition that it was made of and concerning him, and prayed for damages.

The defendant denied that the publication was of and concerning the plaintiff, and it is said that this publication could not have been of and concerning the plaintiff, for this publication stated that the man of whom Lewis gave them an account was a man now dead. The defendant further answered that the publication about whosoever it might be was made without any malice, and without any desire to injure anybody or intent to injure anybody, but purely as a matter of news, and upon information which it had a right to rely upon as reliable.

It further answered that a retraction of the publication was made within a day or two after it was made.

The original article published was introduced in evidence. It was further shown in evidence that the plaintiff was the only Lawrence Conrad, who, so far as was known, had ever lived in Akron, and he was the Lawrence Conrad who was in school with this man Lewis. The retraction so-called which was published, it was claimed, was such that, under Section 5094 of the Revised Statutes of Ohio, it rebutted entirely any presumption of malice which arose from the publication of the original article. Without stopping to quote the statute we think the retraction is not as contemplated by the statute. Nowhere in the retraction is it stated or in any wise implied that the newspaper had published any other article in reference to Lawrence Conrad. The heading was in large type, beginning with the word “mistake” and then followed with other headlines, in large type, and then the article went on to say that Lewis had made a mistake in stating that Lawrence Conrad had been killed while a bank robber, and went on further that Lawrence was a very respectable man living in Akron, But as tending to show at least that the defendant recognized that the publication so made was of the plaintiff, it is stated in the so-called retraction that Lawrence Conrad, of whom Lewis had made the statements in reference to his being billed in a bank robbery, had called at the office of the defendant and told his story.

It would seem from this that there could be no doubt that the defendant recognized that the article which it had published was of the plaintiff.

Proceeding to say something of the sufficiency of the retraction under the statutes, attention is called to the case of Gray v. Times Newspaper Co., decided by the Supreme Court of Minnesota, and reported in 77 Northwestern Reporter, at page 204. An examination of that ease will show that the so-called retraction there published was more full than the one published in this ease; the court says, speaking of such retraction:

11 The statute does not require the retraction to be in any particular form. It must, however, clearly refer to and admit the publication of the article complained of, and directly, fully and fairly, without any uncertainty, evasion or subterfuge, retract (that is recall) the alleged false and defamatory statements thereon. It is necessary that the retraction should refer to the original publication, in order to be fair, because the purpose of the statute in requiring a publication of' the retraction in the next issue of the newspaper after service of the notice and in as conspicuous a place and type as was the article complained of,' is to eradicate so far as possible from the minds of the persons who read the libel the false and unfavorable impressions of the plaintiff engendered thereby.”

Our statute, in its provision's as to retraction says, that it may be made “upon demand and within a reasonable time.”

On the part of the plaintiff in this case it is insisted that the publication of this so-called retraction was not made upon demand ; whereas on the part of the defendant it is insisted that ■what took place at its office at the time the plaintiff called, upon them was in effect a demand.

We regard it as unnecessary to determine whether a retraction of a publication without a demand would be equally effective- to release the publisher from the imputation of malice as one publication upon demand, and we deem it unnecessary to determine whether this so-called retraction was published upon demand; for we agree with the language used by the trial judge that this publication was- not a retraction.

From the evidence it is clear that the defendant did not make the publication with any desire to injure the plaintiff, or anybody else, although it recognized, as appears by the article itself, that it would bring disgrace upon the name of the man about whom it was published; but, in its earnest desire for eariy news it made this publication as we think, without sufficient investigation, and under such circumstances that the plaintiff is entitled to compensatory damages for that publication. But from the fact that in the very nature of things, those who knew the plaintiff at all must have known that the publication was not true, because they must have known that he had not been absent from Akron for eight years or more, as the article stated, we think the damages assessed, namely, $500, was altogether too high, and unless the plaintiff will remit from this judgment the sum of $350, the judgment will be reversed and the case remanded for a new’ trial. If such remittitur is made the judgment for the $150 remaining will be affirmed.


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    DEED AS MODIFIED BY A CONTRACT.
    Circuit Court of Lorain County.
    Thomas C. Johnson, Administrator, v. Henry B. Kendeigh, Benjamin Kendeigh and Grace Kendeigh.
    Decided, May 1, 1907.

      Deed Absolute Construed as Mortgage—Administrator May Maintain Suit to Have Deed so Construed.

    1. A deed absolute, with contract for reconveyance will be'Construed as a mortgage, rather than as a conditional sale, if the. equities of the case require it.
    2. An administrator of the deceased grantor of such a deed, may maintain an action to have it construed as a mortgage, but the relief granted will be a conveyance of the property to the heir or devisee, upon payment of the mortgage debt, such conveyance to be subject to the debts of the decedent.

      E. G. & H. G. Johnson, for plaintiff in error.

      D. J. Nye, Stroup do Eauver and E. G. dk H. G. Johnson, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   Jonas E. Kendeigh lived in North Amherst, Lorain county, Ohio, and at one time owned a certain parcel of real estate. He died testate, devising by a will, duly admitted to probate, whatever property he left, to the defendant, Benjamin Kendeigh. The real question in this case is whether he owned this real estate at the time of.his death, which occurred April. 25, 1904.

On the 18th of May, 1903, said Jonas E. Kendeigh executed and delivered to the defendant, Henry B. Kendeigh, a deed of the real estate mentioned. This was in form a deed of general warranty. On the same day some arrangement was made with reference to this real estate, which was to modify the ownership' of the grantee in the lands described in the deed, and on the 23d day of May, as we hold, to carry out the agreement made on the 18th, Jonas E. Kendeigh and Henry B. Kendeigh executed a written instrument.

This instrument reads as follows:

“Articles of agreement entered into at North Amherst, Ohio, this 18th day of May, A. D. 1903, by and between Henry B. Kendeigh, party of the first part, and Jonas E. Kendeigh, party of the second part.
“Witnesseth: That whereas second party is now the owner of certain real estate hereinafter described, and said real estate is about to be sold upon execution by the sheriff: of Lorain county, Ohio, to satisfy two certain judgments obtained by the North Amherst Bank Co. And whereas, the parties hereto have mutually agreed that second party should convey said real estate to first party and that first party would pay said judgments and all costs thereon, and allow second party to hold possession of the living rooms for life and balance of said real estate for one year, providing second party lives one year and first party would pay the taxes on said premises during said period of time.
“And second party should have the right to redeem said real estate at any time during said period of one year if second party should die before the expiration of one year, in that event the contract shall be void and first party’s title in and to said premises shall be absolute. If second party redeems said real estate and pays to first party his heirs or assigns all money paid out on said real estate at seven per cent, interest, first party his heirs or assigns shall convey said real estate by a good and sufficient deed to said second party.
“If said property should be sold during this time of one year for more than what first party paid, then said over amount shall be divided as herein mentioned. Second party agrees to pay first party one-half of all moneys over first party’s- claim.
“Now, therefore, said second party having this 18th day of May, 1903, executed and delivered to first party a good and sufficient deed for said real estate, and said first party having this day paid said judgments, interest, costs and taxes, and in all the sum of $1,013.83 to date.-
“Said real estate is described as follows, to-wit:
“Situated in the village of North Amherst, county of Lorain, and state of Ohio, and known as the whole of village lot number 121 in Harris Addition in said village subject to right-of-way of the L. S. & M. S. Railway Company. Also the east part of village lot number 120 in said Harris Addition in said village, which parcel is bounded on the north, on the south, on the east, by the respective lines of said lot; and on the south by the respective lines of said lot and on the west by lands in said lot owned by Homer Wilford. Said parcel being fifty-five feet from east to west. Also one other parcel of land in said village and bounded and known as being a part of township lot number 24 in Amherst township, and being within said village. Bounded on the north by the right-of-way owned by the L. S. & M. S. Railway Có., on the west by the said lots Nos. 120 and 121, and on the south and east by West Railroad street.
“Second party agrees to occupy said premises in a safe and careful manner, and that he will not suffer any of said premises to go to waste and that he will do no damages to any of the buildings thereon. Each of the parties agree that they will do and perform the several things herein mentioned for them to do and perform, and each agrees to all the terms and conditions hereof. In witness hereof, the parties set their hands to duplicates hereof this day and year first above written.
£ £ In witness whereof we hereunto set our hands and seals this the 22d day of May.
££ Henry B. Kendeigii,
“Witnessed by “J. E. Kendeigii.
“E. C. Schuler,
“A. IT. Kendeigii.
“ State of Ohio, Lorain Co.
“Sworn to and subscribed before me a Notary Public this the 22d day of May, A. D. 1903, and by Henry B. Kendeigh and J. E. Kendeigh.
“(Seal.) E. C. Schuler,
“Notary Public.’’

On the part of the plaintiff and of Benjamin Kendeigh, who has answered ih this ease, it is claimed that the deed already mentioned and this contract construed together, as we-hold they should be, make the deed in effect a mortgage, to secure to Henry B. Kendeigh the payment of $1,013.83, which amount was furnished by Henry B. to Jonas on the said 18th day of May, and which was used for the paying off of certain liens already existing upon this real estate.

On the other hand it is urged that this contract was simply a conditional sale by Henry to Jonas. We hold that when the deed and this contract are construed together, the deed must be treated as a mortgage, that is, as a pledge of this property for the security of the debt which Jonas- owed to Henry B.

In Cottrell v. Long, 20th O. S., 464, the syllabus reads:

“If a contract for the conveyance of land be intended as security for a debt, it is a mortgage, whatever may be its form or the name given it by the parties.”

In Hurley v. Estes, it is said:

“When an instrument is given as security for the payment of money or the performance of some collateral act, it is a mortgage, whatever may be its form. ’ ’

In the case of Slutz v. Desenberg, 28 Ohio State, 370, there is a very full discussion of the distinction between those contracts where there is a deed from one party to the other, and a contract back in reference to the property being re-conveyed; as to" the distinction which makes in the one case the deed an equitable mortgage, and which makes in the other the contract a conditional sale, and a large number of authorities are cited in that opinion. In that case Judge Ashburn at page 376 uses this language:

“A mortgage, when in form a deed absolute, and a conditional sale, are frequently so nearly allied to each other that it is sometimes difficult to say whether a particular transaction is the one or the other. ”

We find in this case no small difficulty in determining wiiich class of eases the facts' in this case seem to put the ease. But there are significant words in this contract, which, we think, bear upon the question. It is provided, among other things, that the second party is to hold possession of the living rooms for life, and the balance of the real estate for one year, providing the second party lives one year, and the first party should pa.y all taxes on said premises during said period of time. Also the second" party should have the right to redeem said real estate at any time during said period of one year. Again,- if said second party redeems said real estate, and pays to said first party all the moneys so paid out by him together with interest at seven per cent., he will at any time on or before one year from the date of said contract, execute arid deliver to said second party. a good and sufficient deed for said real estate.

Now we think the use of the word “redeem” tends to negative the idea that it was in contemplation of the parties that Henry B. should sell the property to Jonas for a given price within the year, but it being spoken of as giving Jonas the right to redeem the property, implies that it was simply pledged to Henry. Again, this language is used: “If said property should be sold during this time of one year for more than what first party pays, then said over amount shall be divided as herein mentioned. ”

“Second party (which is Jonas) agrees to pay the first party one-half of all money over the first party’s claim.”

These several clauses of the contract, considered in connection with the entire contract, lead us to the conclusion that the property was pledged by Jonas to I-Ienr^ B., and that, therefore, the deed held by Henry is in equity a mortgage for the security of the money paid out by him for Jonas or paid to Jonas, and this he is entitled to have, together with the interest at seven per cent.

The evidence is that the property is worth.at least seventy-five per cent, more than the amount paid into it by Henry B. and we are not disposed to stretch a point to aid Henry B. in securing this unconscionable advantage.

It may be said that Henry’s equities are fully as strong as Benjamin’s; this being true, there seems to be no very strong equity in favor of either, but Henry B. will receive all the money he has ever paid in the property, together with seven per cent, interest on it, and Benjamin -will receive only that which his uncle Jonas saw fit to bequeath to him.

This suit was brought by the administrator, directed against Henry B., and there is a prayer in the petition that the property be conveyed by Henry B, to the plaintiff as administrator. This course can not be taken. The administrador is not entitled to have the property conveyed to him, but he is entitled to have the deed held to be a mortgage, and upon payment by Benjamin, to whom the property is devised, to Henry B. of the amount of the indebtedness from Jonas to Henry B., Benjamin will be entitled to have the property conveyed by Henry B. to him, free from any liens or incumbrances which Henry B. has put upon it, Or may have put upon it, but it will, of course, be subject to be sold for the payment of any debts of Jonas.


text:
    SAVING OF RIGHTS IN CASE OF A REVERSAL.
    Circuit Court of Franklin County.
    Charles C. Higgins v. The Turney & Jones Company et al.
    Decided, July 30, 1912.
    The period of one year within which a new action may be brought inures to a plaintiff whose judgment below has been reversed, and also to a plaintiff who failed in the trial court otherwise than on the merits.
    Dustin, J.; Allread, J., and Ferneding, J., concur.
   The point suggested by counsel for plaintiff in error that his action is within time under Section 11233, General Code, because brought within a year after a dismissal'‘ otherwise than upon its merits” by the circuit court, on appeal, is not, in our.view, well taken.

The case of Cummings v. Dougherty, 31 Law Bulletin, 140, does not, we think, state the law.

If a plaintiff. wins in the trial court, but the judgment is reversed in the upper court, he has a year after reversal in which to bring a new action; or, if he fails in the trial court otherwise than upon the merits, he has the same right.

In the case at bar Jones failed in the trial court upon the merits, viz., upon a demurrer to the facts. By taking an appeal he took the chances of losing by limitation of time. The dismissal of the appeal and the affirmance on error did not, we think, work an extension.

Judgment affirmed.


text:
    CONSTRUCTION OF DEVISE TO WIDOW.
    Circuit Court of Lorain County.
    William White et al v. Edgar M. Freeman et al.
    Decided, May 1, 1907.

      Will—Life Estate—Remainder Over.

    The will of Jacob Henry White, after providing for the payment of his just debts and funeral expenses and one dollar to each of his three children, willed his property as follows:
    “Third. All the rest of my property and estate I give and devise and bequeath to my beloved wife, Frances S. White, giving her full right and power to adjust and settle all claims due me at my death.
    “Fourth. At the death of my said wife, Frances S. White, I will that all property and estate remaining after settling all claims due, such as expenses of last sickness and funeral expenses, and all that remains of my estate, to be devided equally, between my son William White, Dora Stock, and-the heirs of my.son John White. That is to say, one-third of the remaining parts of my estate to William White, and one-third part of my estate of Dora Stock, and one-third part of my estate to the children of my son John White.”

      Held: The widow took a life estate in the fund left by her husband, from which should be paid the expenses of her last sickness and funeral expenses and the remainder to those named in her husband’s will.

      C. A. Metcalf, for plaintiffs in error.

      W. B. Johnson, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The parties here are as they were in the court below. Plaintiffs sued to recover from defendants certain money which they claim under the will of Jacob Henry White, deceased, and which the defendants claim under the will of Frances S. White, deceased.

Jacob Henry White, a resident of Lorain county, Ohio, died testate. His will was admitted to probate in said county on the 21st day of July, 1900. He left a widow, Frances S. White, who died testate March 25th, 1906.

His will reads as follows:

‘ ‘ In the name of the Beloved Father and of all, Amen:
“I Jacob Henry White, of the township of Pittsfield, county of Lorain and state of Ohio, being about 70 years of age and being of sound and disposing mind and memory, do make and publish and declare this my last will and testament hereby revoking and making null and void all other last wills and testaments by me • made heretofore.
“First. My will is that all my just debts and funeral expenses shall be paid out of my estate as soon after my decease as shall be found convenient.
“Second. 'I give, devise and bequeath to my son, William White, now residing in Pittsfield,- Lorain county, Ohio, the sum of one dollar, $1.00. To bjr son John White, now living in Wellington Ohio, I give to him the sum of $1.00. To my daughter, Dora Stock now living in Grafton, Ohio, I give to her the sum of one dollar.
“Third. 'All the rest of my property and estate I give and devise and bequeath to. my beloved wife, Frances S. White, giving her full right and power to adjust and settle all claims due me at my death. ,
' “Fourth. At the death of my said wife, Frances S. White, T will that all property and estate remaining after settling all claims due. such as expenses of last sickness, and funeral expenses, and all that remains of my estate, to .be divided equally between my son William White, Dora Stock, and the hefrs of my son John White. That is to say, one-tliird of the remaining parts of my estate to William White, and one-third part of my estate to Dora Stock, and one-third part of my estate to the children of- my son John White.
■ “Fifth. I nominate and appoint my said wife and William Stock, of Grafton. Lorain county, Ohio, executoi’S of this last will and testament. I desire that no bond as such executors be required, and that no appraisal be made of my estate; and the probate judge of Lorain Co.. Ohio, omit the same if it can be legally done.
“Dated June 23, 1898. '
“Jacob Henry White.
“Witnesses,
“H. M. Pierce,
“R. N. Gordtt. ”

By her last will the widow, Frances S. White, bequeathed her entire property to these defendants.

What transpired in relation to his property after the death of Jacob Henry White is found by the court of common pleas as follows: 1 ' '

“First. That the plaintiffs are the same persons named in the last will and testament of Jacob White, who died at the date set forth in the petition, as entitled to what remained of his said estate after the interests of said Frances White were disposed of. That the copy of the will attached to the petition is a true copy of said will.
“Second. That said Frances White made the application for the probate of his said will, and for letters testamentary to be issued to the persons named as executors in said will in which she testified that his estate consisted of about $500 of personal property and that both she and said William Stock were appointed and qualified as executors under said will, under the terms of which she as such widow elected to take.
“Third. That the amount for distribution under said will was $314.22, all of which was paid over to the said Frances White under the terms of said will as such widow, in the fall of 1900, who mingled said money with her own, and kept it so mingled during her life, and died on the 25th day of March 1906, having in her possession more than $314.22 in money and other property, all of which was so held under claim of right thereto by her, and she died leaving a will by the terms of which she devised and bequeathed to the said Amy Freeman all the property real and personal of which she should die seized. The said Amy Freeman and Edgar M. Freeman, were during all said time and still are husband and wife, and said Amy was the niece of said Frances White, whose sister was Amy’s mother. That said Freemans cared for said Frances for some years before her death in various ways, she Jiving near them by herself. That if they are allowed for their care of her what it is reasonably worth, it would amount to said sum of $314.22 and more. That the expenses of her last sickness and funeral and burial amount to $75 and were paid by said Freemans. There was no evidence of any other or further claims against the estate of said Frances'White or against her in her lifetime, either due, paid or owing to any one, either before or after her death.
“Fourth. That at the death of said Frances the said Free-mans took and appropriated to their own use all the property which the said Frances had in her possession and no part thereof has been paid to the other persons named in said Jacob’s will.
“Fifth. That said will was written upon the-ordinary will blank, and ‘Item I’ .thereof is wholly printed as a part of such blank form, no part thereof being in writing.
“Sixth. There was no evidence that the said Frances promised to pay said Freemans for the care they bestowed upon her, but the court finds that said care was necessary for her comfort and support, and that she had told said Freemans of the said will to said Amy before said support and care were so bestowed upon her.
“Seventh. That said Frances was the second wife of said Jacob, and the step-mother of all his children, and said Free-mans were not related to him except through his marriage to her.
“Eighth. That the said Frances had and kept an estate separate from said Jacob. That at the time of their marriage the said Jacob was living upon a farm of fifty acres having a life use thereof, and having some personal property upon the farm, and possibly some money, just how much is impossible to ascertain, but the court finds that it did not amount to very much. Under these circumstances he married said Frances. Soon after their marriage said Frances began to receive payments upon a legacy of $1,000 due her, and up to 1900 all but $160 of the $1,000 had been paid either.to said Frances or to said Jacob White, the greater portion having been paid to him. That at the death of said Jacob said Frances had certain debts due her, which aggregated $760 and which she collected and mingled with said $314.22, which she received under her said husband’s last will. That she used the money thus mingled together for her support for six years and died leaving $740 thereof, in her possession, which she, willed to the said Amy Freeman. That the said Frances White vised more than the said $314.22 for her support during the six years she lived after the death of,her said husband aforesaid.”

The controversy here is as to whether at the time of the death of Frances any of the-property then in her possession was hold by her in trust for the plaintiffs. If so, how much?

If she became by the will of Jacob, the absolute owner of the residue mentioned in the third item of his will, then the plaintiffs were not entitled to recover. If she held all or any part of it in trust, then plaintiffs were entitled, to recover the amount of such trust property.

The proper construction of the will of Jacob Henry White determines the entire controversy.

This will was executed by using a printed blank, and the first item is entirely in print and as already quoted reads:

“First. My will is, that all my just debts and funeral expenses shall be paid out of my estate as soon after my decease as shall be found convenient. ’ ’

The remainder of the will is in writing.

By the third item, as already quoted, it will be seen that the residuum of the estate is given to Frances, in such terms that, but for what follows, there could be no question as to her becoming the absolute owner under it, by accepting its provisions, as she did.

By the fourth item, however, he undertakes to say what shall become of certain property after the death of Frances and it is contended by the plaintiffs that the language of this item qualifies the ownership in Frances created by the third item.

This, as we hold, depends upon the meaning of the following language in this fourth item, viz, “Remaining after settling all claims due, such as expenses of last sickness and funeral expenses.'’ ’

If these words were intended as simply a repetition of the printed words of the first item, “My will is, that all my just debts and funeral expenses shall be paid out of my estate,” then this fourth item would be in effect a bequeathing of the same property twice. First to Frances and second to those named in the latter part of the fourth item, and the two bequests being repugnant the one to the other, it may at least well be doubted whether the first taker did not become the absolute owner of the property so that there could be nothing for those named in the later item. Steur v. Steur, 8 C.C. (N.S.), 71; Widows Rome v. Lippardt, 70 O. S., 261; Stuart v. Walker, 72 Maine, 145.

We are of the opinion, however, that the words last quoted from the fourth item were not intended as a repetition of the ■words last quoted from the first item, but that the testator plainly intended that out of the property named in the third item, the expenses of the last sickness and funeral expenses of Frances should be paid, and that what should remain of the property named in the third item, after such payment, should go to the parties named as takers after the death of Frances.

With this understanding of the words last quoted from the fourth item, we hold that the estate of Frances in this residuum' was a life estate, with power to charge the same with the expenses of her last sickness and her funeral expenses, and that after these expenses are deducted the balance should go to the plaintiffs. We are not unmindful that there is room for doubt as to the legal effect of the bequests, even construing the words to mean as we construe them, but we feel that our holding is justified by the decision of the Supreme Court in Johnson v. Johnson, 51 Ohio State, 446; Baxter v. Bowyer, 19 Ohio St., 489, and other cases, and though some of the language used in the opinion in Widows Home v. Lippardt, supra, may indicate that the learned judge, who prepared the opinion, entertained views not in conformity with our views, there is nothing in the syllabus which conflicts with this decision, nor was there anything in the ease necessary to be decided,, which would involve the cpiestion involved in this case.

The judgment is reversed, and as the court there found expenses of the last sickness and funeral expenses to be $75, this court will enter judgment for the plaintiffs for $314.22, less $75, or $239:22, and interest.


text:
    INCUMBRANCE AFFECTING THE PHYSICAL CONDITION OF LAND CONVEYED.
    Court of Appeals for Summit County.
    Leo Kunkle v. Matilda Beck and John Beck.
    Decided, April Term, 1913.

      Covenants Against Incumbrance—Notorious and Visible Incumbrances Which Affect the Physical Condition of the Land—Not Excepted From the Rule as to Incumbrances Affecting Title, When—Parol Agreement in Contravention of Terms of the Deed—Available Only in an Action to Reform the Deed.

    1. There- is no difference between incumbrances which affect the title and those which affect the physical condition of the land, and where a right-of-way has been granted, which exists solely for the benefit of a -private person or corporation, it constitutes a breach of covenant against incumbrances.
    2. A pipe line is a private enterprise, notwithstanding the public are interested in procuring the product which it transports, and such a line does not stand in the sapie category as roads and highways.
    Metcalfe, J.; Norris, J., and Pollock, J., concur.
   Plaintiff here was plaintiff below, and this cause comes before us on demurrer to the defendant’s answer. The petition alleges, in substance, that the plaintiff purchased from the defendants, and the defendants conveyed to him by warranty deed a certain farm. That the deed contained the usual covenants of title and against incumbrances. That prior to the execution of said deed to plaintiff defendants had granted and conveyed to the East Ohio Gas Company a right-of-way across said farm, by which a perpetual right was granted to that company to maintain and operate a gas pipe line thereon for the transportation of gas, and that said line had been laid down and has ever since been maintained and operated by the company. Plaintiff claims that said right-of-way constitutes an incumbrance on said farm which lessens its value and thereby causes him damage.

Defendants in their answer admit the execution of the instrument conveying to the gas- company the right-of-way in question and that the company has laid and maintained a pipe line across said right-of-way. For a second defense the defendants say that before the execution of the plaintiff’s deed, and while the plaintiff and defendants were negotiating about the sale of the farm they informed the plaintiff that they had conveyed such right-of-way to the said gas company, and that the plaintiff had knowledge of the fact that a pipe line had been laid across said land. That the physical evidence of the fáet was visible to the plaintiff, and that while said negotiations were in progress plaintiff inquired of them what consideration they had received for conveying said right-of-way, and when informed of the amount asked to have the same deducted from the purchase price of the farm, which was agreed to by defendants, and the sale comsummated in accordance with such agreement. In a third defense the defendants aver that such right-of-way is not an incumbrance in any way affecting the title to the property, but is merely an easement affecting its physical condition, and that the plaintiff having knowledge thereof is estopped from claiming the same to be an incumbrance.

Plaintiff demurred to the answer and the common pleas court overruled the demurrer, and the plaintiff not pleading further judgment was entered against him on the pleadings. Error is prosecuted in this court and the only question is whether the common pleas court erred in so holding.

In our judgment the common pleas court erred in overruling the demurrer. The matter set forth in the second defense is a parol arrangement between the parties made before the execution of the deed, which is clearly in contravention of the terms of the deed itself. While this matter, if properly pleaded, might constitute a good cause of action to reform the deed, it is no defense in an action on the covenant against the incumbrances, and parol evidence Mrould not be admissible to prove such an understanding. Long v. Moler, 5 O. S., 271.

As to the matter set forth in the third defense, a question much more difficult of solution is presented. It is urged with much ability that the incumbrance, being open, notorious and visible is not such an incumbrance as affects the title, but only affects the physical condition of the land, and that the plaintiff having knowledge of its existence at the time of the purchase of the farm can not now be heard to complain that it is a damage to him. Many authorities are cited upon this proposition, and there seems to be respectable holdings that where the right-of-way is a public highway, or a railroad which was known to the parties at the time of the conveyance that its existence furnishes no basis for an action for breach of the covenant against incumbrances. Cutts v. McKinnon, 22 Wis., 628; Mimmert v. McKeen, 112 Pa. St., 315; 30 L. R. A., (N. S.), 833, and note.

But where the right-of-way is a private one existing solely for the benefit of a private person or corporation, we think the decided weight o£ authority is to the effect that such incumbrance constitutes a breach of the covenant.

Tn Long v. Moler, above cited, it is held that incumbrances known to the parties at the time of the conveyance are not presumed to be excluded from the operation of the covenant.

The correct rule, as we think, is clearly stated in Huyck v. Andreius, 133 N. Y., 81. In this case it was held that the right to maintain a mill dam constituted a breach of a covenant against incumbrances, though the easement was perfectly visible to the grantee, and was known by him at the time he purchased the premises.

‘ ‘ There is no distinction in this respect between incumbrances which affect the title, and those simply affecting the physical condition of the land.”

In this case the eases of Cull v. McCune, 22 Wis., 628, and Mimmert v. McKeen, 112 Pa. St., 315, both of which are cited and much relied upon by counsel for the defendant in error, are disapproved. On page 90 it is said respecting these eases:

‘ ‘ They open to litigation upon parol evidence in every action for the breach of the covenant against incumbrances, caused by the existence of an easement, the question whether the grantee knew of its existence; and in every such case the protection of written covenants can be absolutely taken away by disputed oral evidence. We think the safer rule is to hold that the covenants in a deed protect the grantee against every adverse right, interest or dominion over the land, and that he may rely upon them for his security. If open, visible and notorious easements are to be excepted from the operation of covenants, it should be the duty of the grantor to except them.”

And our own Supreme Court in Long v. Moler, supra, seem to be of the same opinion. On page 274 it is said:

‘1 The covenant embraces in terms all incumbrances whatsoever and excepts none whatsoever. '* * * The parties may have had an understanding resting in parol to the effect that the taxes of the current year were to be excepted from the operation of this covenant. But this we can not know; for parol evidence is inadmissible to contradict or vary the plain provisions of the deed. The application of the rule may possibly in this case work injustice to the defendant. If so, we can only regret it: for the rule itself, being a salutary one, must be maintained.”

The following cases also, we think, support the view we have taken in this case: Ladd v. Noyes, 137 Mass., 151; McGowen v. Myers, 14 N. W., 788; Teague v. Whaley, 50 N. E., 41; Myers v. Munson, 21 N. W., 759.

We are satisfied that the rule contended for that open, notorious and visible incumbrances are excepted from the operation of covenants against incumbrances finds no support in the Ohio decisions. It is urged that the right-of-way granted to the gas company is in the nature of a public easement, but we are unable to accept this view. Whatever the rule may be with regard to highways, we do not think that this pipe line can be regarded in the same category with ■ roads and' highways. Its construction was a private enterprise, and the fact that the public are interested in procuring the product which it transports does not make it any the less so.

Judgment of the common pleas court is reversed and the cause remanded with instructions to sustain the demurrer.