text:
    CONTRACTS — DAMAGES—ERROR—PLEADING.
    [Hamilton (1st) Circuit Court,
    July 22, 1905.]
    Jelke, Swing and Giffen, JJ.
    Caldwell Furnace Foundry Co. et al. v. Peck-Williamson Heating & Vent. Co.
    1. Amendment to Petition to Correct Description of Dependant, Admissible under Lan. R. L. 8629 (R. S. 5114).
    An amendment to a petition, filed for the purpose of correcting the description of the defendant, does not state any new and distinct cause of action, and is permissible under Jjan. R. L. 8629 (R. S. 5114).
    2. Everything Necessary to Sustain Overruling of Motion to Quash Service of Summons, Presumed in Absence of Bill of Exceptions.
    In the absence of a bill of exceptions containing the evidence offered upon a motion to quash the service of summons, a reviewing court will presume that the court below found from the evidence every fact in issue necessary to sustain its action in overruling the motion.
    3. Construction of Special Charge that to Render Assignment of Contract Valid, there should be a New Agreement “Simultaneously.”
    A special charge to the jury to the effect, that in order to render an assignment of the contract valid there would have to he a new agreement between the parties “simultaneously,” will he interpreted to mean that the new agreement he or exist between the parties simultaneously, and not that it must be made between them simultaneously.
    4. Measure of Damages for Breach of Contract for Future Delivery of Commodities is Difference between Contract and Market Price.
    The measure of damages for breach of a contract for future deliveries of manufactured articles, where the time of performance of the contract has expired, is the difference between the contract price and the market price, or if there he no market price, the difference between the contract price and that for which the plaintiff, by the exercise of diligence and judgment, could obtain them at the times and in the quantities needed within the limits of the contract.
    Error to Hamilton common pleas court.
    Goulder, Holding & Masten and E. G. Kinkead, for plaintiff in error:
    Matthews & Merrell, for defendant in error.
   GIFFEN, J.

On February 19, 1902, the Caldwell Furnace Foundry Company, a corporation organized under the laws of West Virginia, and having its principal office in Toledo, Ohio, entered into a contract with the Peck-Williamson Heating and Ventilating Company, for the making of certain gray iron castings at Ft. Payne, Alabama. The contract covered a period of four and one-quarter years, beginning April 1, '1902, and called for not exceeding 2,500 tons a year. It required the defendant in error to order not less than 100 nor more than 250 tons each month, but must order 1,600 tons each year.. The defendant in error was to furnish all patterns, and the foundry company the flasks and follow-boards. It provided that the defendant in error should pay three dollars a ton as liquidated damages for every ton that it refused to take on the contract. That if the foundry company refused .to carry out the terms or conditions of the contract, or if it failed or refused to make and ship castings in accordance with the orders of defendant in error, it should pay all losses and damages which defendant in error sustained by reason of such failure. It was required on the tenth day of each month that accounts for all transactions under the contract for the next preceding calendar month must be settled between the parties. The castings were to be delivered f. o. b. Cincinnati and the price, which started at two cents a pound, was to be readjusted at the end of every six months according to the then price of pig iron in the Cincinnati market as shown by the “Iron Age.”

About March 5, 1902, said West Virginia corporation executed a bond, with the Bankers Surety Company as surety, in the sum of $25,000,v conditioned for the faithful performance of the West Virginia corporation’s obligations under said contract for the period of two years, to wit, from April 1, 1902, to April 1, 1904. This bond contained the following provisions:

“That the surety company shall be notified in writing by registered letter mailed to said surety company at its principal office in Cleveland, of any act on the part of said principal which shall involve a loss for which the surety is responsible, and immediately after the occurrence of such act shall have come to the knowledge of the obligee or its duly authorized representative or representatives who shall have supervision of said contract.
“That the surety shall not be liable for any loss growing out of, or caused by, or resulting from, acts of God, storms, lightning, fire, riots, or strikes.
“That any suits at law or proceedings in equity brought against this bond to recover any claim hereunder against the surety must be instituted within six months after the first breach of said contract and within six months from the date responsibility of the surety for the further acts of the principal shall have ceased.”

In July, 1902, an action was brought by the Peek-Williamson Heating and Ventilating Company against the Caldwell Furnace Foundry Company, a New Jersey corporation, and the Banker's Surety Company, upon a bond alleged to have been made by said Caldwell Furnace Foundry Company, a New Jersey corporation, as principal, and the Bankers Surety Company as surety.

On February 23, 1903, the Peck-Williamson Company filed an amended petition in which it stated that its cause of action was founded upon a bond made by the Caldwell Furnace Foundry Company, a West Virginia corporation, as principal, and the Bankers Surety Company, as surety. A general demurrer to the amended petition by the foundry company, and a motion to strike from the files by the surety company, were each sustained, and thereupon the plaintiff below filed a second amended petition, with the following additional averment:

“Plaintiff further says that the defendant named in the caption of the original petition herein as the Caldwell Furnace Foundry Company and the corporation of that name that entered into the contrab- and bond set out in said petition, was and is a corporation of the state of West Virginia, and was so described in the bond sued on, and that plaintiff had no contract and bond with any other corporation of that name, and only the one sued on with the West Virginia corporation, and the summons herein was served upon the managing agent of the West Virginia corporation and the intent and purpose of filing said petition was to sue that corporation of that name of West Virginia, and it has no cause of action whatever against any New Jersey corporation, and the allegation in said original petition that the said Caldwell Furnace Foundry Company was a corporation of the state of New Jersey, was a clerical error, an inadvertence and a slip of the pen, and the contract sued on in this amended petition is the same one as set up in the original petition.”

The surety company duly excepted to the order of the court allowing the second amended petition to be filed and thereafter the West Virginia corporation, appearing for the purpose of motion only, made a motion to quash the alleged service of summons upon it, which was overruled. Thereupon the defendants each filed an answer and cross petition, and set up a modification of the contract whereby the foundry compány was released from filling orders for April and May, 1902, and alleged that the foundry company had performed all,of its obligations of the contract as modified, and pleaded the strike of the molders as a defense, and six months limitation as a bar, and that without the knowledge and consent of the surety company, but with the knowledge and consent of the plaintiff, a West Virginia corporation, assigned the contract of the New Jersey corporation, whereby it was released from all liability. That the plaintiff had broken said contract by replevying its patterns and refusing to permit any more eastings to be made, and pray judgment for liquidation damages at three dollars a ton for 6,500 tons not ordered by plaintiff under said contract, and set up various other claims by way of cross petition.

A reply to the answers and cross petitions is substantially a general denial of all new matters set up. Upon trial, the verdict was returned for the plaintiff, and judgment entered thereon.

The first question presented is, that the court erred in allowing the second amended petition to be filed. It is claimed by counsel for plaintiff in error that the plaintiff, having alleged in his original petition that the defendant foundry company was a corporation organized under the laws of New Jersey, could not by amended petition aver that such defendant was a corporation organized under the laws of West Virginia, and that thereby a new and distinct cause of action was stated, and that under Lan. R. L. 8629 (R. S. 5114), no such amendment is permitted. It is conceded that if the second amended petition states any new and distinct cause of action from that stated in the original petition, it cannot be filed under this section, but the cause of action is the same, being based upon the identical bond relied upon in the original petition, which was executed by the foundry company, a corporation organized under the laws of West Virginia. The change made was not of the essence of the cause of action, but was descriptive of the defendant, and could not in any wise injuriously prejudice the defendants.

The precise question here involved has been decided by the Supreme Court of the United States in a case coming under a similar statute of the state of California, in which the second proposition of the syllabus is as follows:

“The amendment stating that the plaintiff was traveling upon a second-class ticket instead of a first-class ticket, and that the plaintiff in error was chartered by an act of congress instead of by a statute of Massachusetts as originally averred, did not state a new cause of action.” Atlantic & Pac. Ry. v. Laird, 164 U. S. 393 [17 Sup. Ct. Rep. 120; 41 L. Ed. 485],

The court did not therefore err in permitting the second amended petition to be filed.

The next question presented is whether the Caldwell Furnace Foundry Company, the West Virginia corporation, was legally served with summons. The summons commanded the sheriff of Lucas county, Ohio, to notify the Caldwell Furnace Foundry Company, a corporation, and the returii shows service “by delivering to James W. Caldwell, president of said company, a true and certified copy of this writ with indorsements thereon. ’ ’

The West Virginia corporation made a motion to quash the summons, and to dismiss the action against it for want of jurisdiction; which motion contained the following allegations:

“That at the time said summons was served, the corporation making this motion had obtained no certificate from the secretary of state of Ohio, authorizing it to do business in the state of Ohio, nor had it appointed any person in this state upon whom service of process might be served within this state; nor was it doing or attempting to do any business in the state of Ohio, nor had it any place of business in the state of Ohio, nor had it any managing or other agent in the state of Ohio.”

The entry overruling this motion is as follows:

“This cause came on to be heard on the motion of the Caldwell Furnace Foundry Company, a corporation under the laws of West Virginia, to quash the service of process on it, and upon the affidavits and proofs and the process and the return, and the court finds that said process was properly served on the defendant making this motion, that the allegation of the original petition alleging that defendant was a New Jersey corporation was not binding on plaintiff, and was amendable and was amended and cured by the second amended petition, and said motion is overruled; to all of which the Caldwell Furnace Foundry Company, a corporation under the laws of the state of West Virginia, excepts.”

In the absence of a bill of exceptions containing the evidence offered upon the motion, it must be presumed that the court found from the evidence every fact in issue necessary to sustain the judgment of the court in overruling the motion, and that it found that the president, upon whom the summons was served, was the managing agent of the company in the state of Ohio. The ruling of the court was therefore final and binding upon the foundry company in all the subsequent proceedings of the case.

The motion of the surety company to strike the second amended petition from the files, upon the ground that it set up a new cause of action from that set up in the original petition, was properly overruled, for the reason above shown, that it was not a new and different cause of action.

•The allegation that the defendant foundry company was prevented from carrying out its contract by reason of the strike' of the molders is not supported by very weighty evidence, and the jury having found against the defendant on that issue, the court will not now disturb it.

The second special instruction given by the court to the jury at the request of the plaintiff, and objected to by the defendant, is as follows:

“I charge you that the obligations of the Caldwell Furnace Foundry Company under the contract of February 19, could not be assigned to the third party without the concurrence of the plaintiff, and in order to effectuate a substitution in that contract of the New Jersey corporation for the original Caldwell Furnace Foundry Company, there would have to be a new agreement between the three parties simultaneously, whereby not only the New Jersey corporation assumed the contract, but the plaintiff must have accepted it in the place of, and discharged, the West Virginia corporation.”

The objection refers to the use of the word “simultaneously,” counsel claiming that the new agreement need not be made between the parties simultaneously. The error lies in the construction given to the special charge by counsel for plaintiff in error, who assumes that it requires that the agreement shall be entered into by the three parties at the same time, whereas its only requirement is that it be or exist between the three parties simultaneously. It follows therefore that although the West Virginia corporation at one time assigned its contract to the New Jersey corporation, and at a subsequent date the Peck-Williamson Company either expressly or impliedly assented to such assignment, yet thereafter there would be or exist at the same time a new agreement between three parties. It is clear therefore that the exception to the charge is not well taken.

Special instruction No. 5 given at the request of plaintiff is not inconsistent with the general charge, which states that,

“A valuable consideration consists either in some right, interest, profit, or benefit accruing to the party making the promise, or some forbearance, detriment, loss, responsibility, act, labor, or service given, suffered or undertaken by the party to whom made.”

It certainly is not good law as stated in counsel’s brief that “the loss, benefit or damage” to the promisor is a valuable consideration.

We have examined the special instructions requested to be given to the jury by the plaintiff in error, but refused by the court, and conclude that no error was committed by such refusal, although we deem it unnecessary to discuss any of the charges except the one pertaining to the measure of damages, which is as follows:

“The measufe of plaintiff’s damage, if any, because of its necessity to secure its castings elsewhere, if such necessity existed, would be the difference betwen the contract price and the lowest price at which plaintiff could have relet the contract or made a new similar contract at the date of the breach, at the same or a similar market. ’ ’

This rule was applied and sanctioned in the case of Roehm v. Horst, 178 U. S. 1 [20 Sup. Ct. Rep. 780; 44 L. Ed. 953], and would be a proper charge in this case, if, at the time of the trial, the period of two years covered by the bond had not expired. But inasmuch as the time for performance of that part of the contract had expired, it was competent to ascertain the exact cost of labor and material necessary to manufacture the castings and the amount needed by the plaintiff in error at the several times of delivery, or ascertain the market value of the eastings if they had any. The object in all cases is to ascertain as nearly as possible what loss plaintiff has suffered by reason of the breach of the contract.

We are of the opinion, that the measure of damages stated by the court in its general charge was more appropriate to the facts in this case, and was as follows:

“The difference between the contract price and the market price of castings of a like character and quality as those contracted for. If they had no market price, then the difference between the contract price and that which the plaintiff, by the exercise of diligence and judgment, was able to fairly obtain them for from other foundries. ’ ’

The objection to this charge is, that it fails to state the time at which the market price, or if there be none, the price at which the plaintiff, by the exercise of diligence and judgment, was able to obtain, should be ascertained. While, no doubt, it would make the charge more definite and certain to state the time at which the price should be fixed, yet we think, in the absence of such statement, it would be fairly inferred that such price was to be ascertained at the several times for delivery, and in such quantities as the plaintiff in error needed, within the limits specified in the contract.

The first paragraph quoted from the general charge standing alone and unexplained would be erroneous, but the succeeding paragraph indicates the purpose for which the jury may not consider conversations and negotiations prior to the signing of the contract, to wit, “not for the purpose of varying or contradicting the contract itself.”

The third paragraph quoted from the general charge is not even misleading, as the jury could hardly infer that the plaintiff, having waived the deliveries for the months of April and May, and the defendant, Bankers Surety Company, having consented thereto, plaintiff would be entitled to recover against the surety company for a failure to make such deliveries.

We find no prejudicial error, and the judgment will be affirmed. -

Jelke and Swing, JJ., concur.


source: Caselaw Access Project

author: COOK, J.

license: Public Domain

text:
    RAILROADS — NEGLIGENCE.
    [Portage (7th) Circuit Court,
    September Term, 1905.]
    Cook, Burrows and Laubie, JJ.
    Wheeling & L. E. Ry. v. Carl Harvey.
    Railroad Required to Guard or Fasten Turntable, when.
    Where a railroad company maintains a turntable upon its right of way, close to a traveled path along its track, which people, old and young, have been accustomed to use, without objection for many years, as a traveled way, and further permits children to play upon such turntable, without objection: Held, that it is its duty to guard such turntable, or so securely fasten it that children of tender years will not be injured while playing upon it.
    Error to Portage common pleas court.
    A. S. Cole and Squires, Sanders & Dempsey, for plaintiff in error:
    The so-called “Turntable Doctrine” has never been adopted in Ohio. Reference to the Turntable cases in Harriman v. Railway, 45 Ohio St. 11 [12 N. E. Rep. 451; 4 Am. St. Rep. 507], is mere dictum. See the explanation of Harriman v. Railway in the following cases: Cin. H. & D. Ry. v. Aller, 64 Ohio St. 183 [60 N. E. Rep. 205]; Balt. & O. S. W. Ry. v. Cox, 66 Ohio St. 276 [64 N. E. Rep. 1119; 90 Am. St. Rep. 583]; Cleveland, A. & C. Ry. v. Workman, 66 Ohio St. 509 [64 N. E. Rep. 582; 90 Am. St. Rep. 602],
    Recent decisions of the Supreme Court are inconsistent with the turntable doctrine, which was applicable to these cases if in force in Ohio. Ann Arbor Ry. v. Kinz, 68 Ohio St. 210 [67 N. E. Rep. 479]; Lake Shore & M. S. Ry. v. Liidtke, 69 Ohio St. 384 [69 N. E. Rep. 653].
    Unless a different rule is to bé applied in Ohio toward children than toward adults, the following eases prevent recovery in the present: Pitts. Ft. W. & C. Ry. v. Bingham, 29 Ohio St. 364 [23 Am. Rep. 751]; Cin. H. & D. Ry. v. Aller, 64 Ohio St. 183 [60 N. E. Rep. 205].

      The original turntable case, Sioux City & Pac. By. v. Stout, 84 U. S. (17 Wall.) 657 [21 L. Ed. 745], assumes the question at issue, and is an extension of eases since overruled.
    The weight of authority is opposed to the turntable doctrine: Frost v. Railway, 64 N. H. 220 [9 Atl. Rep. 790; 10 Am. St. Rep. 396]; Daniels v. Railway, 154 Mass. 349 [28 N. E. Rep. 283; 13 L. R A. 248; 26 Am. St. Rep. 253]; Holbrook v. Aldrich, 168 Mass. 15 [46 N. E. Rep. 115: 36 L. R. A. 493; 60 Am. St. Rep. 364]; McAlpin v. Powell, 70 N. Y. 126 [26 Am. Rep. 555]; Walsh v. Railway, 145 N. Y. 301 [39 N. E. Rep. 1068; 27 L. R. A. 724; 45 Am. St. Rep. 615]; Gillespie v. McGowan, 100 Pa. St. 444; Rodgers v. Lees, 140 Pa. St. 475 [21 Atl. Rep. 399; 12 L. R. A. 216; 23 Am. St. Rep. 250]; Paolino v. McEendall, 24 R. I. 432 [53 Atl. Rep. 268; 96 Am. St. Rep. 736]; Turess v. Railway, 61 N. J. Law 314 [40 Atl. Rep. 614]; Delaware, L. & W. Ry. v. Reich, 61 N. J. Law 635 [40 Atl. Rep. 682; 41 L. R. A. 831; 68 Am. St. Rep. 727]; Ritz v. Wheeling, 45 W. Ya. 262 [31 S. E. Rep. 993; 43 L. R. A. 148]; Uthermohlen v. Run Co. 50 W. Ya. 457 [40 S. E. Rep. 410; 55 L. R. A. 911; 88 Am. St. Rep. 884]; 0 ’Connor v. Railway, 44 La. Ann. 339 [10 So. Rep. 678]; Catlett v. Railway, 57 Ark. 461 [21 S.-W. Rep. 1062; 38 Am. St. Rep. 254] ; Indianapolis v. Emmelman, 108 Ind. 530 [9 N. E. Rep. 155; 58 Am. Rep. 65]; Patterson v. Borough of Woohkahra, 16 New So. W. 229.
    In the following states the turntable doctrine has been in force but is now repudiated. See Ryan v. Towar, 128 Mich. 463 [87 N. W. Rep. 644; 55 L. R. A. 310; 92 Am. St. Rep. 481]; Savannah, F. & W. Ry. v. Beavers, 113 Ga. 398 [39 S. E. Rep. 82; 54 L. R. A. 314]; Nolan v. Railway, 53 Conn. 461 [4 Atl. Rep. 106]; Dobbins v. Railway, 91 Tex. 60 [41 S. W. Rep. 62; 38 L. R. A. 573; 66 Am. St. Rep. 856].
    Those states applying the turntable doctrine do not carry it as far as the present case, as the turntable here was fastened, and the requests to charge based upon the following cases should have been given: St. Louis, V. <& T. H. Ry. v. Bell, 81 111. 76 [25 Am. Rep. 269]; Kolsti v. Railway, 32 Minn. 133 [19 N. W. Rep. 655]; Bates v. Raihvay, 90 Tenn. 36 [15 S. W. Rep. 1069; 25 Am. St. Rep. 665].
    The plaintiff was not attracted on to the premises of the railroad company by the turntable, and the turntable doctrine does not apply: Jefferson v. Railway, 116 Ala. 294 [22 So. Rep.'546; 38 L. R. A. 458; 67 Am. St. Rep. 116]; 3 Elliott, Railroads Sec. 1259.

      W. J. Beckley, for defendant in error:
    Liability in turntable cases. Sioux City & Pac. By. v. Stout, 84 U. S. (17 Wall) 657 [21 L. Ed. 745]; followed and approved in Union Pac. By. v. McDonald, 152 TJ. S. 262 [14 Sup. Ct. Rep. 619; 38 L. Ed. 434]; Alabama, G. S. By. v. Crocker, 131 Ala. 584 [31 So. Rep. 561]; Chicago, B. & Q. By. v. Krayenbuhl, 65 Neb. 889 [91 N. W. Rep. 880]; Edgington v. Bailway-, 116 Iowa 410 [90 N. W. Rep. 95; 57 L. R. A. 561]; Harriman v. Bailway, 45 O. S. 11 [12 N. E. Rep. 451; 4 Am. St. Rep. 507]; Bailway v. Shields, 47 O. S. 387 [24 N. E. Rep. 658; 21 Am. St. Rep. 840; 8 L. R. A. 464]; Ann Arbor By. v. Kinz, 68 O. S. 210 [67 N. E. Rep. 479]; Lake Shore & M. S. By. v. Duer, 11 C. D. 761 (21 R. 512); Barrett v. Pacific Co. 91 Cal. 296 [27 Pac. Rep. 666; 25 Am. St. Rep. 186]; Callahan v. Bailway, 92 Cal. 89 [28 Pac. Rep. 104]; Keffe v. Bailway, 21 Minn. 207 [18 Am. Rep. 393]; Kansas Cent. By. v. Fitzsimmons, 22 Kan. 686 [31 Am. Rep. 203]; East Tennessee & W. N. C. By. v. CargUle, 9 Am. Neg. Rep. 200; Koons v. Bailway, 65 Mo. 592; Nagel v. Bailway 75 Mo. 653 [42 Am. Rep. 418]; Ilwaco By. & Nav. Co. v. Hedrick, 1 Wash. 446 [25 Pac. Rep. 335; 22 Am. St. Rep. 169]; Pekin (City) v. McMahon, 154 111. 141 [39 N. E. Rep. 484; 27 L. R. A. 206; 45 Am. St. Rep. 114]; Ferguson v. Bailway, 75 Ga. 637; Ferguson v. Bailway, 77 Ga. 102; 42 Cent. L. J. 457.
   COOK, J.

Carl Harvey, a boy of six years of age, was injured by having his left leg crushed, necessitating its amputation close to the thigh joint, on July 2, 1904, while he was riding upon the turntable of the Wheeling & Lake Erie Railroad Company, situated upon its premises in the village of Kent, this county. There is very little dispute, if any, about the facts, and the question presented is: Was the jury justified in inferring negligence, under the law, from the facts in the case?

The evidence shows that the turntable was situated close to the main track on the right of way of the company, in the village of Kent. It is true, not in its most populous section, but in a place where there were a number of dwellings, upon two streets close to the turntable. The tracks of the company ran north and south at the place of the injury, and numerous persons, adults and children, without objection from the company, were accustomed for a number of years, to use a side path along the main track, in going to and fro between these two streets, as well as from other parts of the village. The evidence further shows that children, for some time, at least for four or five years, had been accustomed to play upon the turntable, with the knowledge of the subordinate employes of the company. When they were turning the turntable, these employes would object, and drive them away; when running over it, playing upon it only, they would not disturb them. The turntable was not locked, or otherwise securely fastened.

It had a piece of iron known as a brake shoe, four inches wide, by sixteen inches long, fitted down into a groove, one end placed upon the end of the turntable, and the other upon a tie at the end of the switch intersecting the turntable. This piece of iron weighed from ten to fifteen pounds, and could be easily removed by anyone that could lift it. Sometimes this brake shoe was in place, but frequently not in place —the turntable swinging in the wind, or by its own motion. „

The day the boy was injured, he, with two other boys of larger size, went down the track, along the' path, for the purpose of getting a small piece of iron; in coming back, and passing the turntable for the second time, one of the boys suggested that they have a ride on the turntable, which was unfastened by one of the larger boys lifting out the brake shoe. The plaintiff got upon the turntable, and the two larger boys pushed the turntable around to give him a ride, when his leg got between the end of the turntable and the abutment 'of the switch, and he was injured as stated.

Under these facts, is the company liable? No amount of discussion would help to elucidate or settle the question, as it has been gone, over in nearly every state of the Union, and the holdings are directly contrary to each other.

Two principles are set forth and maintained in these directly, opposite decisions. The first is, that an owner of land may use it in such manner as he sees fit, and if a trespasser or mere licensee, although a child of immature years, is injured, he cannot complain, for the reason that, if the owner had used it more carefully, no injury would have resulted ; and that in the case of turntables, erected and maintained upon the company’s land, although in a public place, or in a place where children are in a habit of congregating to play upon the turntable, is not an invitation or inducement held out to the child to come upon the premises of the company.

This rule has the support of many eminent courts and jurists in a large number of states: Haunsell v. Smith, 7 Com. B. (N. S.) 731; Clark v. Manchester, 62 N. H. 577; Klix v. Nieman, 68 Wis. 271 [32 N. W. Rep. 223; 60 Am. Rep. 854]; Gramlich v. Wurst, 86 Pa. St. 74 [27 Am. Rep. 684]; Cauley v. Railway, 95 Pa. St. 398 [40 Am. Rep. 664]; Gillespie v. McGowen, 100 Pa. St. 144 [45 Am. Rep. 365]; Har grave v. Deacon, 25 Mich. 1; Sweeny v. Railway, 92 Mass. (10 Allen) 368 [87 Am. Dec. 644]; Metcalf v. Steamship Co. 147 Mass. 66 [12 N. E. Rep. 701]; Barstow v. Railway, 143 Mass. 535 [10 N. E. 255] ; Daniels v. Railway, 154 Mass. 349 [28 N. E. Rep. 283; 13 L. R. A. 248; 26 Am. St. Rep. 253] ; Frost v. Railway, 64 N. H. 220 [9 Atl. Rep. 790; 10 Am. St. Rep. 396]; Walsh v. Railway, 145 N. Y. 301 [39 N. E. Rep. 1068; 27 L. R. A. 724 ; 45 Am. St. Rep. 615]; Delaware, L. & W. Ry. v. Reich, 61 N. J. Law 635 [40 Atl. Rep. 682; 41 L. R. A. 831; 68 Am. St. Rep. 727].

The last case referred to, places the rule in its strongest light. The syllabus being as follows:

“1. The plaintiff, a young child, was injured, while upon a turntable of the defendant company. The turntable was located upon the private property of the defendant, near to a public -street, and was entirely unprotected and unguarded. Children of all ages frequently congregated upon the defendant’s premises, to play upon the turntable. Held: That there was no liability on the part of the railroad company, to answer for the plaintiff’s injury.
“2. A landowner is ordinarily under no obligations to a mere licensee or to a trespasser, to keep his premises in a safe condition; and the fact that the licensee or the trespasser is an infant of tender years, affords no reason for modifying this rule, and charging the landowner with a duty which does not otherwise exist.
“3. When an owner of land erects upon his premises for their more beneficial use, a structure which happens to be attractive for children, he does not, by such action, extend an invitation to children to enter thereon.”

This doctrine, a large number of the courts of last resort of the different states, as well as the Supreme Court of the United States, repudiate.

These decisions are collated in 29 Am. & Eng. Enc. Law (2 ed.) 33.

As deduced from these decisions, the rule as there laid down, is, that the owner of dangerous machinery or appliances, that are attractive to children of tender years, cannot permit such machinery or appliance to remain in a public place, where children are liable to be attracted thereby,.get upon the same, and be injured; or even upon his own premises, when the place is not public, if he has reason to anticipate that such children will get upon the same, without taking proper and reasonable precaution so to protect or fasten such machinery or appliances, that children will not be injured by the exercise of their youthful instinct to play upon the same.

The leading ease sustaining this rule, is Sioux City & Pac. Ry. v. Stout, 84 U. S. (17 Wall.) 657 [21 L. Ed. 745], which is followed and emphasized in Union Pacific Ry. v. McDonald, 152 U. S. 262 [14 Sup. Ct. Rep. 619; 38 L. Ed. 434].

Our Supreme Court has not had before it, a case directly involving the question, but there have been cases before it, that involved the principle underlying the doctrine, and in these cases it has been more than intimated that the rule as enunciated in Sioux City & Pac. Ry. v. Stout, supra, was the correct one.

In Harriman v. Railway, 45 Ohio St. 11 [12 N. E. Rep. 451; 4 Am. St. Rep. 507], the first paragraph of the syllabus reads:

“Where a railroad company, has for a long time permitted the public, including children, to travel and pass habitually over its road at a given point, without objection or hindrance, it should, in the operation of its trains and management of its road, so long as it acquiesces in such use, be held to anticipate the continuance thereof, and is bound to exercise care, having due regard to such probable use, and proportioned to the probable danger to persons so using its road. ’ ’

In that case our Supreme Court expressly approves the leading case of Lynch v. Nurdin, 1 Ad. & Ell. (N. S.) 29, upon which case was largely founded the decision in Sioux City & Pac. Ry. v. Stout.

In the case of Bellefontaine & I. Ry. v. Snyder, 18 Ohio St. 399 [98 Am. Dec. 175], it was held:

“The negligence of a parent or custodian of a child cannot be imputed to the child, to bar its right of action against others for injuries resulting from their wrongful acts.
“It is the duty of persons in charge of cars passing along streets or other frequented places to exercise great caution; and if, by failure to do so, a child of tender years is injured, the company is liable in an action by the child, notwithstanding? the negligence of the parent in permitting' it to be on the track* or of the person in charge of the child in not keeping a proper lookout lor the cars. ’ ’

In the opinion, after quoting Lynch v. Nurdin, supra, and a number of other cases, it is said on page 415:

“The injury here was-within the ordinary and probable sequence of events, a result of the defendant’s negligence. It might reasonably have been anticipated. There was danger of its happening, such as an ordinarily careful and prudent person might have apprehended, and would be likely to apprehend, as a possible result of any relaxation of vigilance and care.”

On principle, this seems to us to be the proper doctrine. It cannot be said that where a railroad company permits its right of way to be unfenced, and constantly used as a highway, and constructs in such place, an appliance, such as a turntable, that is especially attractive to children, and which necessarily would lead them in the enjoyment of their natural instincts to play upon it, that it owes no duty to such children, and especially so when it is shown that the company knew of such use of the appliance.

In Loomis v. Terry, 17 Wend. 496, 497 [31 Am. Dec. 306], which is spoken of approvingly in Walsh v. Railway, supra, Justice Cowen said, page 500:

“The business of life must go forward, and the fruits of industry must be protected. A man’s gravel pit is fallen into by trespassing cattle, his corn eaten, or his sap drunk, whereby the cattle are killed; his unruly bull gores the intruder, or his trusty watch dog, properly ■and honestly kept for protection, worries the unreasonable trespasser. Such consequences cannot be absolutely avoided.”

True, but at the same time, the owner must take care that he offers no inducements or implied invitation to visit the “unruly bull,” or “trusty watch dog,” for if he does, he transforms that which would be a mere trespass or license, into a legal right.

Whether the fastening upon the turntable was a sufficient one, in the exercise of ordinary care, by the company, was a question of fact to be submitted to the jury. Indeed, the whole question was one for the jury, except the law required the direction of a verdict for the defendant, under the rule that the company owed the child no duty, which we have seen is not the correct rule in this state.

The trial judge submitted the case fairly and intelligently to the jury, and the verdict was against it.

In Sioux City & Pac. Ry. v. Stout, supra, the third clause of the syllabus reads:

“Though it is true in many cases, that where the facts of a ease are undisputed, the effect of them is for the judgment of the court, and not for the decision of the jury. This is true, in that class of cases where the existence of such facts come in question, rather than where .deductions or inferences are to be made from them. And whether the facts be disputed or undisputed, if different minds may honestly draw different conclusions from them, the ease is properly left to the jury.”

This is also the rule in this state.

We find no error in the record, and the judgment will be affirmed.

Burrows and Laubie, JJ., concur.


author: GIFFEN, J.

text:
    CONTRACTS — ERROR—EVIDENCE.
    [Hamilton (1st) Circuit Court,
    July 8, 1905.]
    Jelke, Swing and GifEen, JJ.
    Duhme Jewelry Co. v. Levi P. Hazen.
    1. Time only One of Elements in Fixing Value of Services.
    In fixing the value of services rendered, the time consumed in the performance of the service is only one of the elements to be considered.
    2. Plaintiff’s Opinion as to Value of Services Properly Admissible, but if Excluded Estops Defendant to Deny that Evidence Adduced thereon.
    The opinion of the party performing the services is competent, in a suit for recovery of their value, and where the defendant causes such opinion to be excluded, he can not afterward say that no evidence as to value has been submitted to the jury.
    3. Verdict may be Based on Character and Extent’ of Services, Independent of Opinion of Witnesses.
    Moreover, testimony as to the facts touching the character and extent of the services is evidence of their value, independent of the opinion of the witnesses.
    4. Question Calling for Mere Conclusion not Prejudicial if Jury in Possession of Facts on which Conclusion Based.
    A question which was incompetent for the reason that it called for a conclusion, is rendered harmless where the answer put the jury in possession of the facts upon which the witness based his opinion.
    5. No Error in Omission of Instruction not to Consider Petition as Evidence.
    The omission of a special instruction that the jury are not to consider the statement of plaint iff’s claim in his petition as evidence is not prejudicial error.
    Error to Hamilton common pleas court.
    Jones & James, for plaintiff in error.
    O’Hara & Jordan, for defendant in error.
   GIFFEN, J.

The original action was commenced to recover for services rendered in effecting a lease which involved a definite rental of $33,500, with a privilege of renewal, embracing a rental to the amount of $16,250.

Neither the pleadings nor the evidence warrant the conclusion that the plaintiff relied upon a promise to pay him the value of his time alone, but, on the contrary, he relied upon the promise to pay him the reasonable value of his services, time being only one of the elements of value of such services.

After proving the facts pertaining to the character and extent of the services which the plaintiff rendered, he offered his opinion of their value, but upon objection of counsel for the defendant, the court excluded it and thereupon counsel for defendant requested the court to instruct the jury that if they find for the plaintiff, the verdict for the plaintiff shall be one cent, which charge the court refused to give, and defendant by its counsel then and there excepted.

We think the opinion as to the value of the services was competent, but that the defendant having caused the same to be rejected should' not afterwards be permitted to say that no evidence of value was before the jury, and besides, independent of the opinion of witnesses, the facts touching the character and extent of the services were themselves evidence of their value and would require the jury to return a verdict for the plaintiff for substantial damages.

The following question in the deposition of Jacob A. Kohner was objected to by the defendant; the objection overruled, to which counsel for defendants excepted:

“In your opinion, as president of the McAlpin Company, and as the office of that company who negotiated the leasing of these premises and who executed the lease from the Duhme Jewelry Company, is it your opinion that the leasing of the aforesaid premises was brought about by the efforts of Mr. Hazen and éntirely through his efforts?”

This called for a mere conclusion of the witness from the facts within his knowledge which were or ought to have been offered in evidence, and was therefore incompetent. But in view of the answer given: “Yes, fully through him, from the fact there was nobody else to negotiate with until the final drawing up of the lease at the attorney’s office,” it was not prejudicial for the reason that the jury was put in possession of the sole fact upon which the witness based his opinion.

The special charge, that the jury are not to consider the statement of plaintiff’s claim in his petition as evidence in the case, might well have been given, although we fail to see how its omission could mislead the jury or prejudice the' rights of the defendant. The reason for its refusal assigned by counsel for defendant in error fe unsound; it was not requested to be given before argument to the jury nor in writing, and hence Subd. 5 of Lan. R. L. 8699 (R. S. 5190), has no application.

The damages assessed appear to bé not excessive and the judgment will be affirmed.

Jelke and Swing, JJ., concur.


text:
    CONTRACTS.
    [Hamilton (1st) Circuit Court,
    July 29, 1905.]
    Jelke, Swing and Giffen, JJ.
    A. W. Williamson v. America Bennett et al.
    1. Recovery can be had fob Substantial Performance of Contract if Strict Performance Waived.
    The substantial performance of an entire and subsisting contract will entitle the party to a recovery, if he manifested at all times an intention to perform fully the same and made every reasonable effort so to do and the defendant by a paper writing and his subsequent conduct has waived a strict performance thereof.
    2. Action on Original Contract, not Improper because Modified by Extension of Time of Performance, etc.
    The modification of a contract by the parties, by extending the time of performance and by fixing the amount of the unpaid purchase price, will not operate as a substitution of a new contract so as to make an action brought on the original contract improper.
    Error to Hamilton common pleas court.
    C. B. Matthews, for plaintiff in error.
    Albert Bettinger, for defendants in error.
   GIFFEN, J.

It is claimed by the plaintiff in error that the contract set forth in the petition is entire and that the plaintiff could not recover on it unless her assignor had fully performed it in every respect in accordance with its terms. Counsel rely upon the following cases: Witherow v. Witherow, 16 Ohio 238; Larkin v. Buck, 11 Ohio St. 561, 568; Allen v. Curles, 6 Ohio St. 505.

. In commenting upon these cases, Gilmore, J., in the case of Goldsmith v. Hand, 26 Ohio St. 101, says, at page 105:

“In each of these cases the court found the contract to be entire and subsisting. Nothing appeared in either of the cases indicating that there had been an intention to comply with the contract by the party seeking to recover upon it; or, on the other hand, an intention to waive a strict performance of it by the party defendant against a recovery. If either of these, or anything else equivalent to them, had appeared in the cases, they would not have fallen within the rule of law recognized in the cases.”

And at page 106, he says:

“The principle of law recognized by these cases is this: ‘That the courts will not encourage the violation of agreements by relieving the defaulting party from the intentional and unjustifiable breach of his agreement, and allowing him to recover pro tanto for the part performance of a contract that is entire; where the other contracting party is not in fault, and has not waived a full performance by acceptance or otherwise.’ ”

In the case before us, the plaintiff always manifested an intention to perform fully the contract, and made every reasonable effort to do so, while the defendant not only by the paper writing of January 25, 1895, but by his subsequent conduct, waived strict performance of the contract, which according to the interpretation of the rule found in Goldsmith v. Hand, supra, would permit a recovery upon the contract where substantial performance had been shown.

We are of the opinion that the contract of January 25, 1905, was not a substitution for the contract sued on, but modified that contract by extending the time of performance and by fixing the amount of the unpaid purchase price. The issue upon the contract of January 25, was presented by the answer of the defendant, and while plaintiff denies that it was founded upon the prior verbal agreement as to the value of the undelivered material, yet she did not deny the execution and delivery of the paper writing, and the court in its charge to the jury, told them that the claim of the plaintiff was for the sum of $12,400, as stated in the contract of January 25.

The parties proceeded to trial upon the issues thus presented, and we are unable to see how a different result would follow were the action maintained upon the contract of January 25, 1905, as a substitute for the original contract. The allegation of the answer, that the contract of January 25, 1895, was made in pursuance of an agreement between Bennett and Williamson that the value of the undelivered property was for the sum of $12,400, is at variance with, and contradiction of, the writing itself, and all testimony tending to prove that issue was properly withdrawn from the jury.

The court committed no error in giving the special instructions requested by the plaintiff.

The first and second special instructions requested by the defendant were properly refused for the reason that the so-called note of January 25, 1895, did not supersede the original contract nor did it fix the value of the undelivered articles mentioned in the original contract.

From what has already been said, the third special instruction requested by the defendant was properly refused.

This is the second trial of the cause, with substantially the same result in each, and there appears no good reason for disturbing the verdict upon the ground that it is against the weight of the evidence.

Judgment affirmed.

Judge Swing is of the opinion that the agreement of January 25, , was a valid and subsisting agreement between the parties. That it was intended to be a substitution for the former agreement, and when the conditions contained in the former agreement were fully performed the sum of $12,400 was to be paid by Williamson and Baldwin. Plaintiff should have brought his action on this agreement.

Judge Swing is further of the opinion that the evidence shows that the agreement was never fully performed. In fact, matters mentioned in the contract, which were to be performed, were never attempted to be performed.


text:
    ASSESSMENTS.
    [Hamilton (1st) Circuit Court,
    June 24, 1905.]
    Jelke, Swing and GifEen, JJ.
    Frances Kummer et al. v. Cincinnati (City) et al.
    Municipality cannot Estimate Benefits on Basis of Depreciation of Lots Caused by Nuisance which it has Permitted.
    A municipal corporation has control of its streets, and by statute is charged with the duty of keeping them free from nuisance; it cannot, therefore, estimate the benefits accruing to abutting lots from a street improvement on the basis of the depreciation of the lots in value, at the time such improvement was made, caused by the fact that the street had been used as a dump for waste matter.
    A. T. Brown, for plaintiff:
    This assessment is wholly void under the decisions of Cincinnati v. Batsche, 52 Ohio St. 324 [40 N. E. Rep. 21; 27 L. R. A. 536]; State v. Gardner, 34 N. J. Law 34; State v. Newark, '25 N. J. Law. (1 Dutch.) 399; State v. Hudson, 29 N. J. Law (5 Dutch.) 115; Sec. 2314a Rev. Stat. (repealed, 96 O. L. 96), is wholly inconsistent with Sec. 1655a Rev. Stat. (repealed, 96 O. L. 96), of the new charter law, and is therefore expressly repealed by See. 5 of said act; State v. Brown, 4 Circ. Dee. 345 (8 R. 103).
    F. H. Kunkel, assistant city solicitor, for defendants:
    Petitioners for improvement estopped. Thornton v. Cincinnati, 26 O. C. C. 33; State v. Mitchell, 31 Ohio St. 592; Tone v. Columbus, 39 Ohio St. 281 [48 Am. Rep. 438]; Columbus v. Bold, 44 Ohio St. 479 [8 N. B. Rep. 299]; Benham v. Cincinnati. 26 O. C. C. 17; Price v. Toledo, 25 O. O. C. 617; Ottawa v. Railway, 25 111. 43; McBride v. Chicago, 22 111. 574.
   GIFFEN, J.

The street improvement involved in this ease is the same as that in the case of Nulsen v. Cincinnati, 27 O. C. C. 383, in which it was held that in making the assessment the board of public service did not regard nor attempt to regard the benefits thereof to the respective lots, but apportioned the cost, and expense of the improvement upon the lots; abutting thereon in proportion to their respective frontages upon said improvement, and enjoined the collection of the assessment in excess of the special benefits conferred. The same result must follow in this case, unless the contention of the city that the street, prior to the improvement, being used as a dump for waste matter of all kinds and becoming a public nuisance, thereby depreciated the value of the abutting lots, which should be considered in estimating benefits. The city, however, had control of the street and by statute was charged with the duty of keeping it free from nuisance. It- cannot now make that which was occasioned by its own negligence the basis for depreciating the value of the property, before the improvement, and thereby sustain the assessment.

Considering the benefits conferred upon the lots in controversy as shown by the testimony and an actual view of the premises, we hold that the assessment upon lot 38 should be sustained to the extent only of $50, that being 25 per cent of its value after the improvement; that only $125 should be assessed against lot 106; that lot 131 should be assessed $160, that being 25 per cent of the value of the lot after the improvement; lot 107, $125. All in excess of such amounts, as well as the entire assessment on lot 125, will be enjoined.

The assessment on lots 82, 95, 96, 116, 117, 219 and 226 will be sustained for the full amount.

A decree may be drawn in accordance with the above finding.

Jelke and Swing, JJ., concur.


author: TAGGART, J.

text:
    COURTS — JUSTICES OF THE PEACE.
    [Licking (5th) Circuit Court,
    October Term, 1905.]
    Donahue, McCarty and Taggart, JJ.
    L. B. Tussing v. R. Walter Evans.
    Consent Confers no Jurisdiction on Justice to Reserve Case for Decision Later than Prescribed by Statute.
    The power of adjudication of a justice of the peace is derived from the statute, and if not exercised within the time prescribed by law, his jurisdiction ceases; hence the parties to an action before a justice cannot by agreement confer jurisdiction on him to reserve the case for decision at a later time than is authorized by the statute.
    Error to Licking common pleas court.
    Donaldson & Tussing, for plaintiff in error:
    By retaining the case for consideration and in failing to render his decision and enter judgment until the fifth day after the close of the trial, the justice lost jurisdiction of the case, and his judgment against the plaintiff in error, is irregular and void. Laning B. L. 10161 (B. S. 6579); Nicholson v. Roberts, 6 Dec. 233 (4 N. P. 43); Brown, Jurisdiction Sec. 10; McCleary v. McLain, 2 Ohio St. 368; Gilliland v. Sellers, 2 Ohio St. 223; Dayton & W. Ry. v. Marshall, 11 Ohio St. 497; Rosebrough v. Ansley, 35 Ohio St. 107; Dunlap v. Robinson, 12 Ohio St. 530; Baton v. French, 23 Ohio St. 560; Brown, Jurisdiction Sec. 10; Young v. Rummell, 5 Hill (N. Y.) 60; Sibley v. Howard, 3 Den. 72 [45 Am. Dee. 448]; McNamara v. Spees, 25 Wis. 539; Watson v. Davis, 19 Wend. 371.
    S. L. James, for defendant in error:
    The justice had jurisdiction to retain this case for decision for five days by consent of the parties. Weils v. Martin, 1 Ohio St. 386; Wilcox v. May, 19 Ohio 410; Doe v. Pendleton, 15 Ohio 735; Jackson v. Jackson, 16 Ohio St. 163; Robinson v. Kious, 4 Ohio St. 593; Gilliland v. Sellers, 2 Ohio St. 223; Dunlap v. Robinson, 12 Ohio St. 530; Collins v. Davis, 32 Ohio St. 76; Matthews v. Davis, 39 Ohio St. 54; Robbins v. Clemmens, 41 Ohio St. 286; Ohio & M. Ry. v. Sluiltz, 31 Ind. 150; Benn v. Borst, 5 Wend. 292; McCleary v. McLain, 2 Ohio St. 368; Godfred v. Godfred, 30 Ohio St. 53; McCurdy v. Baughman, 43 Ohio St. 78 [1 N. E. Bep. 93]; Gorman v. Taylor, 43 Ohio St. 86 [1 N. E. Bep. 227]; Arrowsmith v. Harmoning, 42 Ohio St. 254; Rosebrough v. Ansley, 35 Ohio St. 107; 12 Am. & Eng, Enc. Law 128, 129, 130.
   TAGGART, J.

This is a proceeding in error to reverse the judgment of the court of common pleas, wherein said court affirmed the judgment of a justice of the peace. In the justice’s court, Evans, the defendant in error, commenced a proceeding in attachment against the plaintiff in error herein, and the goods of the plaintiff in error were attached; plaintiff in error filed a counterclaim, and the cause went to trial. At the close of the hearing of the testimony in the case, the justice reserved his decision in the case. Plaintiff in error thereafter instituted proceedings in error in the court of common pleas. Accompanying his petition in error in said court was a transcript from the docket and journal entries of the justice of the peace.

Before the case came on for hearing in the court of common pleas, on application for diminution of the record and a more complete and correct transcript of the docket of the justice of the peace, the justice certified a new transcript, or a corrected transcript, which was filed in the common pleas court on May 12, 1905; and a brief reference to said corrected transcript may be necessary to a correct understanding of this case. I quote from this transcript:

“July 8, 1904, issued subpoena for plaintiff’s witnesses; July 11, 1904, ease was continued to July 13, 1904, at 9 A. m. ; July 13, 1904, 9 a. m., the parties appeared; the defendant stated that the claim of the plaintiff was correct and would go to trial on the counterclaim, and claimed the opening and closing, which was granted by the court; trial had.”

And then follows a statement of witnesses sworn and examined on behalf of the plaintiff. Continuing from the transcript:

“After the evidence and argument, the court reserved his decision until July 18, 1904, 9 a. m., which was done by consent and agreement of both parties to case, both plaintiff and defendant.” “July 18, 1904, 9 a. m., plaintiff appeared; the defendant stated that he could not be present and asked that the result of the decision be forwarded to him. The court, after the consideration of the evidence, finds the issues in favor of the plaintiff. It is therefore considered by me that the plaintiff recover of the defendant the sum of $129.24, and costs taxed herein.”

A bill of exceptions was taken in the court of common pleas on the question as to the right and authority of the justice of the peace to amend his transcript; and testimony was directed towards impeaching this amended transcript.

It is now contended that this court cannot look into this testimony that was adduced on that hearing and incorporated in that bill of exceptions. With this contention of the defendant in error this court fully concurs. We think that we can only look to the transcript as certified by the justice and from that determine the rights of the parties herein; and, looking to that, it does appear that consent was given to the action of the justice in reserving his judgment after the time the trial was had, and longer than is permitted by the statute in that behalf.

Did this consent continue the jurisdiction of the justice, or did it have the effect of conferring jurisdiction upon the justice? We think' the matter is clearly determined by the authorities in this state, and we first refer to the case of Nicholson v. Roberts, 6 Dec. 233 (4 N. P. 43), wherein Judge Evans, we think, states the correct conclusions in cases oi this kind:

“1. The jurisdiction of justices of the peace to enter judgments in actions tried before them, is prescribed by Sec. [Lan. 10161] 6579 Eev. Stat., and the judgment of a justice rendered after the expiration of the time within which the rendition is expressly authorized by said section, is void for want of jurisdiction.
“2. The parties to an action before a justice of the peace cannot, by agreement, confer on him jurisdiction to render judgment therein after the expiration of the period within which he is authorized by said section to render it.”

We think the conclusion arrived at in this case is fully supported by McCleary v. McLain, 2 Ohio St. 368, 369; Beebe v. Scheidt, 13 Ohio St. 406 and 416; State v. Ritty, 23 Ohio St. 562, and Rosebrough v. Ansley, 35 Ohio St. 107, 111.

The contention of the defendant in error that consent can confer jurisdiction, or can extend jurisdiction, is supported by an authority to which our attention is called, in Thompson v. Ackerman, 12 Circ. Dec. 456, wherein the third circuit court of this state held:

“The power of adjudication of a justice of the peace is derived from the statute, and if not exercised within the time allowed by law, his jurisdiction ceases. Hence by adjourning the hearing of a motion for a new trial beyond the time limited by Sec. [Lan. 10142] 6560 Rev. Stat., by which his authority to grant new trials is conferred, his jurisdiction on the ^notion is lost unless it appears of record that the parties consented to such adjournment.”

Upon an examination of this case, we find that the question as to whether or not consent would confer jurisdiction or extend jurisdiction beyond the limit of the statute was not a question in that case, and no authorities are cited by the court in support of its conclusion, and the question not being properly in the case, was perhaps not properly considered by. it; but, whether it was or not, we think this authority is contrary to the great weight of authority on this question in Ohio, and therefore do not concur in the opinion of that court.

Holding, to these views, it is the judgment of this court, that the judgment of the court of common pleas in affirming said judgment was erroneous and will be reversed, and the costs of this proceeding in error in the common pleas court and in this .court are adjudged against the defendant in error; and the judgment of the justice of the peace is reversed. And now coming to render the judgment that said justice should have rendered, and said court of common pleas should have rendered, said cause is dismissed for want of jurisdiction, without prejudice to a new action. To all of which the defendant in error excepted, and exceptions of the defendant in error are noted.

Cause remanded for execution.

Donahue and McCarty, JJ., concur.


author: HENRY, J.

text:
    EXECUTORS AND ADMINISTRATORS — MOTIONS AND ORDERS.
    [Lorain (8th) Circuit Court,
    October 6, 1905.]
    Marvin, Winch and Henry, JJ.
    Justin Breckinridge, In Re Estate.
    1. Consideration of Motion to Remove Executor not a Summary and Ex Parte Proceeding.
    The consideration of a motion for the removal of an executor is not a summary and ex parte proceeding, but one in which the executor should be allowed an opportunity to show that the charges against him are without merit.
    2. Motion under Favor of Lan. R. L. 9556 (R. S. 6017) for Removal of Executor, Charging Fraud, not Sustained, unless Fraud Proved.
    Under favor of Lan. R. L. 9556 (R. S. 6017), which provides for the removal of an executor if there are unsettled claims between him’ and the estate, which in the opinion of the court may be the subject of litigation, or if any other reasonable cause exist, a motion for such removal which charges that an executor not only “refused to take possession of” certain notes and other personal property of the estate, but that he connived “to defraud said estate of said property,” but which does not allege any conversion on his part, will be overruled, where it does not appear from the evidence that any fraud in fact existed.
    Error to Lorain common pleas court.
    .Leonard & Johnston, for Jacob Breckinridge.
    C. A. Metcalf, for W. B. Durand.
   HENRY, J.

This proceeding in error was begun by W. B. Durand, as executor of the will of Justin Breckinridge, to reverse the judgment of the Lorain county court of common pleas, removing said executor.

The litigation originated in the probate court of this county, where Jacob C. Breckinridge, son and residuary legatee of the deceased, filed a motion May 16, 1904, under favor of Lan. R. L. 9556 (R. S. 6017), for the executor’s removal. The motion was overruled by the probate judge, but, on appeal to the common pleas court, it was granted, and a finding of facts and law was made, showing among other things, that Justin Breckinridge died, testate, August 12, 1874, leaving, besides the son aforesaid, two daughters, Eleanor S., wife of H. H. Hitchcock, and Hannah Durand, wife of the executor.

The executor’s final account was filed January 24, 1879, and duly approved, but he has never been discharged.

The testator had been a man of considerable property; but shortly before his death he sold his farm to his daughter, Eleanor Hitchcock, for $10,000 taking back ten mortgage notes for $1,000 each, signed by her and her husband, and payable at intervals of one or two years from 1871 to 1883.

The original motion charged that the executor not only “refused to take possession of” these notes and other personal property of the estate, but that he confederated and connived with his brother-in-law, Hitchcock, and their wives, “to defraud said estate of said property.”

These charges, it is claimed, suffice to bring the ease within the purview of said Lan. R. L. 9556 (R. S. 6017), which provides:

“The probate court may at any time remove any executor for * * *■ that there are unsettled claims or demands existing between him and the estate, which in the opinion of the court may be’ the subject of controversy or litigation between him and the estate, or persons interested therein, or any other cause which in the opinion of the court renders it for the interest of the estate that such executor or administrator be removed.”

In the hearing before the court below, the executor offered to show that the property in dispute had been fully disposed of by the decedent in his lifetime; but this evidence was excluded.

The executor also asked the court to find whether such disposition had in fact been made, but the court refused to make such finding.

The court, however, did find that, although there is no evidence of any fraud by the executor, there are “unsettled claims and demands, existing between said W. B. Durand and said estate., which, in the opinion of the court, may be, and probably will be, the subject of controversy and litigation between said W. B. Durand and said estate or persons interested therein.”

It will be observed that the motion does not charge the executor with'having converted to his own use any property of the.estate. On the contrary it alleges that he failed to take possession of, and recover, the same, and that this was fraudulently done in connivance with other-persons. But the court below expressly found that there was no evidence of any fraud by the executor. We fail to see therefore how the-motion could be sustained. The gist of the only ground urged for the executor’s removal is fraud, and no attempt was made to show fraud.

It is urged, however, that the statute under consideration is. remedial in its nature and should be liberally construed so that upon the mere suggestion of fraud, or, at least upon the proof of facts showing, that there may arise a tona fide controversy or litigation, of the sort contemplated by the statute, the executor may be removed and deprived of his vantage ground, and the issue litigated before a court, and jury as an adversary action, in the same manner as other civil actions, and subject to the same rules of evidence.

We cannot agree that the statute contemplates such an ex parte or summary proceeding for an executor’s removal.

It must, at least, be made to appear that the claim made is on its face meritorious, and the executor should be permitted to show, if he can, that it is without merit. Any other construction would be harsh and oppressive.

We think the court below erred in excluding the evidence offered by the executor, and in concluding as a matter of law, upon the facts found, that there are unsettled claims and demands existing between-said W. B. Durand and said estate, which may be the subject of controversy or litigation between said Durand and said estate or persons; interested therein.

For these errors the judgment of the court of common pleas is reversed and the cause remanded for further proceedings.

Marvin and Winch, JJ., concur.


author: HAYNES, J.

text:
    BILLS OF EXCEPTIONS — NEGLIGENCE—MUNICIPAL CORPORATIONS.
    [Huron (6th) Circuit Court,
    April Term, 1905.]
    Haynes and Parker, JJ.
    Norwalk (City) v. Jessie Jacobs.
    1. Bill of Exceptions Becomes Part of Record although not Signed at End, WHEN.
    A bill of exceptions will be considered as part of the record although not signed at the end thereof by the trial judge, when it appears that it is attached to a cover prepared and used for such purpose wherein is stated, among other things, the time of receiving the bill, and the bilí itself contains a statement to be made by the trial judge, which he signs, that he received and allowed the bill on certain dates, and thereafter turn* the same over to the clerk of courts and is by him filed.
    2. City Liable for Allowing Telephone Poles in Streets, when.
    A municipal corporation is responsible for injuries resulting to a traveler upon one of its streets from coming into contact with a ' pole placed in such a position by a telephone company as to become a public nuisance or dangerous; or if such pole should subsequently become dangerous or a public nuisance to the knowledge of the municipality, or in the exercise of ordinary and reasonable prudence, it should have obtained knowledge thereof, it would also be liable.
    3. Whether Telephone Pole in Street is Nuisance is Question for Jury, etc.
    Whether or not a telephone pole placed in,a public street by a telephone company is dangerous or a public nuisance, is a question to be submitted to the jury under proper instructions by the court; and, in deciding the question, they should consider the situation of the pole and how it was placed, and whether it was in fact situated in a position that was really dangerous or not.
    Error to Huron common pleas court.
    E. G. Martin and J. R. McKnight, for plaintiff in error.
    S. M. Young, for defendant in error.
   HAYNES, J.

This cause of action arose from the alleged negligence on the part of the city of Norwalk, in permitting a certain telephone pole to stand in the street, whereby the plaintiff below received injuries resulting from a horse shying at an electric car, passing over to the side of the road and coming in contact with this electric pole, or the wheels of the buggy coming in contact with it. The accident happened at a place called Ailing’s Corners, about two miles from the courthouse in the eastern part of the city.

The case was tried to a jury and a verdict rendered in favor of the plaintiff below for $3,500. A bill of exceptions was taken and was sent to the judge who tried the case, but by some oversight he failed to sign it at the end of the bill of exceptions, but it was attached to the cover that has been prepared and used in connection with this bill of exceptions and which, we take it, becomes a part of the papers wherein is stated the time of receiving it and various other matters; and in the bill of exceptions, among other things, there is a statement to be made by the trial judge which he signs and that he received, January 10, 1905, the bill of exceptions and that he allowed the same this January 12, 1905. Then it was signed by the trial judge and turned over by him to' the clerk of the court and was duly filed in this court.

Objection was made to this court considering the bill of exceptions •at all, but we are of the opinion that that is so far a part of the bill of exceptions, that we should consider, as the signature of the trial judge, that he did sign, the bill of exceptions and that he did allow it.

The bill of exceptions, however, has another difficulty, and that is, it in fact does not contain all the evidence, that certain papers were offered in evidence which were to be attached and should have been in the bill of exceptions but which were omitted; and the result of this combination of circumstances is, that in making an examination of the case, we examined it in regard to any errors in the admission or rejection of evidence, and in the charge of the court. We feel constrained to reverse this judgment.

The evidence tended to show that the street out there was in the -nature of a public highway rather than a street; that it had been gravoled or macadamized in some form, so that it was crowned, it is said, in the center of the street, some twelve or fourteen inches higher than the borders of the street, that although there are no gutters, still it went ■down to a point where there are trees and where there is a place reserved for the public to walk upon; in other words it is ground that would «ordinarily be used for a sidewalk, and there is a space which is used for the growing of trees and grass for ornamentation. It is a road that is rather away from'the center of business and. the testimony shows that a pole had been erected by the telephone company and was erected very near this bank, standing a little perhaps in the gutter. The exact distance that it is standing in the gutter, so-called, is in dispute, some testifying that it stands very near the edge of it, and others that it stands at some little distance. It is said that it is either not in the original direction or condition it was when erected; that it now leans over some fourteen or fifteen inches toward the center of the road.

It is claimed that this lady who was driving along, was herself carrying a child and had a friend with her carrying another child, when the horse started and crowded or ran over near the outer edge of the road and that there the buggy hit this pole, that the wheels either hit it, or else it was hit in the top by the pole leaning over. It is said that the top of the buggy was taken off the buggy and the ladies were thrown upon the ground and this lady suffered the injury of a broken limb and it is claimed she suffered other injuries.

The telephone company, of course, put up the pole; the city, however, is responsible, if it was placed in a position where it would become a public nuisance and dangerous, or if it should become so after-wards, so that the city should have knowledge of that matter, or in the exercise of ordinary and reasonable prudence should obtain knowledge of that fact.

The law on that subject, as cited by the authorities, is well stated in the case of Denver v. Sherret, 88 Fed. Rep. 226 [31 C. C. A. 499; 60 U. S. App. 104], decided by the circuit court of appeals, — decided by a majority-of the court, however; and the doctrine in regard to the rights of the city are laid down also very well in Elliott, Roads & Streets Sec. 824. Light may also be thrown upon the subject by Cincinnati v. Fleischer, 63 Ohio St. 229, 234 [58 N. E. Rep. 568]—a decision by the Supreme Court of this state.

The court, in its charge to the jury, said that the pole was a nuisance and that the city was liable for- its condition, which, of course would be true, if the plaintiff ran against it without contributory negligence, which is not claimed; so that it would simply leave the question to be decided against the city without anything further.

Now, we think that question was one that should have gone to the jury with proper instructions as to the rights and duties of the city with regard to the erection of that class of poles, or permitting the erection of that class of poles by a corporate company; and it should have gone to the jury upon the question of how and where it was situated, whether it was in fact situated in a position that was really dangerous or not. I have very serious doubts myself whether that pole was in a position where it could be said to be in a dangerous condition, or to be said to be a nuisance. However, that will be a question for a jury to decide; having stated the rights of the city, as well as its liabilities, it was also a question that should have been charged in regard to the amount of roadway which it left for persons to pass along. It is claimed that between the street and the railroad, there was a broad lawn or road there that was ample and sufficient and that there would be no reason to suppose that any danger would arise to persons passing along even if the horse should shy.

Now, those were all questions that should have gone to the jury and that should have entered into discussion in their, minds in regard to the liability; but as I have said, when they went out, all they had to say ’was, the court has said that this is a nuisance and the plaintiff says she ran against it, and there is no claim that she was negligent, and therefore she is entitled to recover.

Now, upon this question, there is a case cited by defendant in error, Fisher v. Mount Vernon (City), 6 Am. Neg. Rep. 356. It is a decision by the supreme court of New York in its appellate division, second department, in which is set forth the general rights of the city, or the liabilities of the city; and in that case, it will appear from a reading of it, and from a reading of the syllabi that the court proceeded with the view that the case was one that should be submitted to the jury; that it was a question to be left to the jury and upon that point I think it is a decision in favor of the proposition that we have laid down in this case.

The judgment of the court of common pleas will be reversed, the verdict of the jury set aside and the case remanded for a new trial.

Parker, J., concurs.


author: JELKE, J.

text:
    ASSIGNMENTS — CONTRACTS—INJUNCTION.
    [Hamilton (1st) Circuit Court,
    June 24, 1905.]
    Jelke, Swing and Giffen, JJ.
    New York & B. Co. v. August Herrmann et al.
    1. Assignee of Past of Contract Obtains no Independent Contractual Rights, if Assignor - Responsible for Entire Contract.
    The assignee of an item of a contract will not obtain independent contractual rights on which he may bring an action for specific performance, where the assignor is, by the terms of the original contract, responsible for its complete performance, including the part sublet.
    2. Injunction will not Lie to Enforce Contract.
    If independent contractual rights were acquired by the assignee of a portion of a contract for services and such assignee has a complete and adequate remedy at law for the breach thereof, a petition for an injunction to enforce such rights will be denied.
    3. Cincinnati Waterworks Commissioners can Contract only as Prescribed by Lan. R. L.,3713 (B. 1536-541).
    The board of waterworks commissioners for Cincinnati is authorized to establish independent contractual relations only in the manner particularly prescribed by the provisions of Lan. R. L. 3713 (B. 1536-541).
    Appeal from Hamilton common pleas court.
    Miller Outcalt and D. V. Sutphin, for appellant.
    F. D. Dinsmore, for appellee.
   JELKE, J.

We are of opinion that item 13 of the Henkel contract of May 16, 1899, is not so divisible from the main contract as to be susceptible, by assignment, of establishing independent contractual relations with the assignee of such item.

This could only be done by discharging this item, and whatever interest or profit might be in the same, from all liability for the complete performance of the principal contract. This could not be done:

First. Because the board of waterworks commissioners has no power to surrender or give away any of the city’s rights secured to it by a contract legally entered into; and

Second. Because the board of waterworks commissioners can establish independent contractual relations only in the manner particularly prescribed in act 92 O. L. 606 (Lan. R. L. 3713; B. 1536-547).

Again, there is nothing ambiguous or equivocal about the action of the board of October 10, 1902:

“Resolved, that consent is hereby granted said United States Construction Company to sublet to said New York & Bermudez Company all the work to be done and materials to be furnished, embraced in said item 13, and to assign to said New York & Bermudez Company all moneys which may become due and payable for the work and material furnished under said item 13; and be it further
“Resolved, that this consent is granted by the board without in any way releasing or affecting the liability of said United States Construction Company, Aug. J. Henkel and the United States Fidelity & Guaranty Company, all or either of them, for the faithful and complete performance of said contract, including the part thereof herein permitted to be sublet to the New York & Bermudez Company.”

The board plainly set out its intention only to consent to a subletting.

We are of opinion that the New York & Bermudez Company acquired no contract rights, specific performance of which could be enforced independent of the principal contract.

We are further of opinion that even if the rights of the New York & Bermudez Company were as here contended for, injunction would not lie to enforce them, but said company would be relegated to an action at law where full and adequate remedy in damages could be had for any breach of contract. Steinau v. Gas Co. 48 Ohio St. 324 [27 N. E. Rep. 545].

Giffen and Swing, JJ., concur.


author: PER CURIAM.

text:
    CHARGE TO JURY.
    [Hamilton (1st) Circuit Court,
    July 8, 1905.]
    Jelke, Swing and Giffen, JJ.
    Continental Casualty Co. v. William Jordan.
    Charge that Settlement is not Binding in Case of Fraud or Mistake, Erroneous in Absence of such Averment.
    In an action on an insurance policy wherein the answer alleged a settlement of the claim in question, to which the .plaintiff made a general denial, an instruction to the jury, that if a settlement were procured by fraud or mistake, it would not bind the plaintiff, is reversible error.
    Error to Hamilton common pleas court.
    Archer & Osier, for plaintiff in error.
    David Davis, for defendant in error.
   PER CURIAM.

The original action was founded upon a policy of insurance against accidental injury. One of the defenses set up by the defendant in its answer is that it made full settlement with the plaintiff for all damages arising from his alleged accident and took a receipt from said plaintiff in full for any and all damages accruing or growing out of his said alleged accident. The reply is a general denial.

The court charged the jury that if the settlement was procured by fraud or mistake, it was not binding upon the plaintiff. This was erroneous in the absence of any averment to that effect in the pleading (Swan, Pr. & Preced. 246-247).

We deem it unnecessary to determine what obligation was imposed by the terms of the policy upon the assured to pay the monthly premiums after the accident occurred, for the reason that if the settlement made and the receipt given were binding upon the plaintiff he was released from further payments, and if on the other hand settlement was made through mistake or fraud which the plaintiff did not discover until after he' ceased paying premiums, the policy would not be forfeited for such nonpayment.

Judgment will be reversed, and cause remanded for a new trial.


author: WILDMAN, J.

text:
    ACTIONS — PLEADING—PRINCIPAL AND SURETY.
    [Huron (6th) Circuit Court,
    October Term, 1905.]
    Haynes, Parker and Wildman, JJ.
    William Schick v. Ed. J. Ott et al.
    1. Failure to Set out Indorsements in Action on Note Corrected on Motion.
    In an action on a promissory note, tbe failure to set out the indorsements thereon in the pleadings, or to state that there are no indorsements, is a defect to he reached by motion and not by demurrer.
    2. Agreement to be Responsible eor Debts Contracted in Certain Business Creates Relation oe Principal and Surety; and Action oe Surety to Eneorce Payment by Principal Maintainable.
    A petition alleging that plaintiff was engaged for a specified salary to conduct a certain business for defendants, they to become responsible for liabilities incurred by him in the management thereof, shows a state of facts creating the relation of principal and surety, upon which an action may he maintained by plaintiff to compel the defendants to pay suefi debts after they become due.
    3. Petition in Action Alleging Breach oe Agreement to Pay Certain Debts Demurrable ie no Allegation that such Debts are Due.
    A petition in an action to compel a principal to pay debts to save his. surety is open to demurrer for a failure to allege that such debts have matured.
    4. Joinder oe Cause oe Action on Note with One to Eneorce Payment oe Debt by Principal Improper.
    The joinder of a cause of action on a promissory note, with one to compel the payment of a debt by a principal to save his surety, is improper and open to demurrer; a fortiori, when the principal’s creditors, who are strangers to the note and in no way connected therewith, are joined as parties- defendant to such action.
    Error to Huron common pleas court.
    McKnight & Thomas, for plaintiff in error.
    E. G. Martin and J. M. Bechtol, for defendants in error.
   WILDMAN, J.

This is a somewhat peculiar case and to give it any kind of elaborate consideration would perhaps require a reading of the entire petition and several demurrers thereto.

The ease was disposed of in tbe court below upon tbe demurrers of several defendants to tbe petition of the plaintiff. The court sustained tbe demurrers and dismissed tbe plaintiff’s petition, and Schiek, who was tbe plaintiff below, comes to this court by a proceeding in error asking for a reversal of the judgment of tbe court of common pleas.

It is substantially claimed in the petition that Schick was engaged by the defendants, Edward J. Ott and Theresa Ott, to conduct a saloon in Norwalk, they to become responsible for such liabilities as he should incur in the purchase of stock and in the hiring of help; they were also to pay him the sum of twelve dollars a week, two dollars a day for the working days of the week.

The defendants demurred, in one form and another, but generally alleged misjoinder of the several causes of action in the petition, the most of them, perhaps all, claiming also that the petition failed to state facts constituting k cause of action, against the parties demurring. There are three alleged causes of action set out in the petition, and upon the theory that all of the creditors of William Schick who had furnished him goods or loaned him money during the time that he was engaged in this business under his arrangement with the Otts, that they were all interested in the adjudication between him and the Otts as to their liability of the latter to pay the indebtedness so incurred by him, they are all brought into the suit as parties defendant; he sues not only Edward J. Ott and Theresa Ott, but he also sues a large number of persons who, it is said, furnished supplies to the saloon and became creditors therefor; also the bank which, at one time, loaned money to Schick.

It is not claimed in the petition that these various creditors were apprised of the arrangement between.the Otts and Schick; that they had any knowledge whatever that the Otts were to become the backers of Schick, or were in any wise to become responsible for debts incurred by him.

The judge below, as we understand from a typewritten transcript of the opinion delivered by him, concluded that no right of action would arise in favor of Schick as against the Otts until he had been compelled to pay some of these debts; and he also took the view apparently that there was a misjoinder of the causes of action as alleged in the demurrers.

In his opinion, and in the journal entry, it is not stated that the demurrers are sustained by reason of a' misjoinder of the causes of action, or upon the other ground, that the petition fails to state facts; but the dismissal of the petition by the court would leave the impression that the court was sustaining the demurrers upon the general ground, — perhaps upon both, — but at least upon the general ground, that it failed to state facts.

The first cause of action in the petition.is the one in which the debts to the various creditors who had. furnished supplies to the saloon, are described. The second cause of action is the one in which the debt to the bank is mentioned. The third cause of action is of an entirely dissimilar and distinct character. It is an ordinary suit upon a promissory note made by Edward J. Ott and Theresa Ott to Schick.

For convenience, I will consider the third cause of action first: It has been argued to the court by counsel for the Otts that the claim upon this cause of action is defective, in that it fails to set out the indorsements upon the note, or to state that there are no indorsements. The third cause of action is drawn substantially in the short form provided by the code, — a form which provides that it shall be sufficient to set out copies thereof with all credits and indorsements thereon. This petition fails to state that the note bears no indorsements and it fails to set out any indorsement.

We have examined the question thus arising with some care and have concluded, upon the basis of a number of authorities in Ohio, that a demurrer will not lie for this defect. Almost the precise question is raised in the case of Kline v. Wehrmann, 11 Dec. 509 (8 N. P. 336). Other cases more or less in point, are the cases of Ingersoll v. Craw, 4 Dec. Re. 76 (1 Clev. L. Rep. 1), a case decided by the Cuyahoga court of common pleas; also the case of Ives v. Strickland, 6 Dec. Re. 810 (8 Rec. 309), and of which cases I will make mention for brevity without reading. There is a case which may have some bearing incidentally in one of the Supreme Court decisions,—the case of Schrock v. Cleveland, 29 Ohio St. 499. The case, however, is one in which the short form was not exactly adopted; there was a little more than that but there is some comment by the judge that may throw some light upon the question presented here and it is cited for such use as may be made of it by counsel, if there is any wish to go higher with the question. There is also a case decided by the Cuyahoga common pleas court, Beck v. Ball, 4 Dec. Re. 233 (1 Clev. L. Rep. 147), which may be cited for such bearing as it may have in the opposite direction, of sustaining the claim of defendants in error.

The drift of the authorities seems to be, that while this is a defect under the short form, it is a defect that is to be reached by motion to make the petition definite rather than by demurrer; and indeed in one or more of the cases, it seems to be indicated that it is not necessarily a requirement of the statute that the petition shall state that there are no indorsements. The statute says it shall be sufficient to set out a copy of the petition with all credits and indorsements thereon. It does not, however, appear by this pleading that it had any indorsement to be set out. There is nothing in the statute which requires, in terms, that if there are no indorsements, that that fact shall be stated; so that it may be said, that the court will not assume that the note had indorsements upon it. Our judgment is, that this third cause of action does state facts sufficient to constitute a cause of action in favor of Schick against the Otts. We are very clear, however, that it has no possible connection with the claims stated in the first and second causes of action, and we have no doubt then, that the court was right in the view that there was a misjoinder of causes of action.

I believe that not one of these demurrers, demurs to the causes of action separately, but the demurrers are all addressed to the petition as a whole, and in each demurrer where the question is raised as to the sufficiency of the statement of facts, the claim is made in the demurrers that the petition fails to state facts sufficient to constitute a cause of action; not that any one alleged cause of action fails to state the requisite facts, but that the petition, as a whole, fails to state them.

Of course, no one of the defendants other than the Otts would be bound in any way by claims upon the note against the Otts. It might be entirely proper for all the other defendants to demur upon the ground that the petition failed as a whole to constitute a cause of action against them, that is, against said other defendants.

There is another matter to which counsel did not especially invite the attention of the court, but which became apparent to us upon an examination of the petition, and that is, that in the assertion of the claims of the plaintiff in the so-called first and second causes of action in which Schick is insisting that <the Otts should pay the debts therein described, there is an entire lack of any averment that the debts had accrued, that is, that they had matured, — had become due. It is plainly enough asserted that the debts aré owed, but it is not asserted that the time had arrived for payment and without looking at the statute, and without looking at any adjudication, it should be plainly apparent to any mind that a person ought not to be compelled to pay a debt until the time has come for its payment. It was said in argument, however, that whatever may appear upon the face of the petition, there is no question but that the debts are due; it was so stated by the attorney for the plaintiff in error, and that it would be easy to show that the claims had matured so far as that question was concerned.

Another matter was suggested with regard to the first cause of action, by counsel for defendants in error, and that is, that the contract made, as alleged in that claimed cause of action, was a verbal one and that, under the statute of frauds, it would be invalid. We have not 'found it necessary for the time being, to discuss or consider that particular phase of the case. We have preferred to leave that question for future consideration, either of the court below, or this court, in case it should ever come to this court, and in view of what manifestly appears here, that counsel for Schick was led, by the position taken by the court below in dismissing the action, or in holding rather, that no action at all would lie until the payment of the debt by Schick, into permitting the case to go to a dismissal and coming here without asking leave to amend.

The court below might have held, and we think properly, that the first and second causes of action were defective by reason of-their failure to show that the debt had become due; but the court went a little further than that and held, as we read in the opinion, that' the surety would have no right to sue the principal until the surety had paid the debt. The attention of the court below probably was not called either to the section of our statute as to another right of a surety, or as an equitable principle which indeed, obtained before the existence of the statute, and it is presumed it did not occur to the mind of the court at the time. Laning R. L. 9384 (R. S. 5845) provides that, “A surety may maintain an action against his principal, to compel him to discharge the debt or liability for which the surety is bound, after the same becomes due.” This is an additional remedy to that which a surety has who is compelled to pay a debt which the principal ought to pay. If the principal fails to pay a debt which he should pay, the surety may pay and sue the principal at law, and by virtue of this statute, he may, even before payment, and without payment, sue the principal to 'compel payment after the debt has matured.

It has been held by our Supreme Court in several cases, that this right existed in equity even without this section of the statute.

Eeference may be had to the case of McConnell v. Scott, 15 Ohio 401, 403 [45 Am. Dec. 583], and a note in the annotated edition citing Sheldon, Subrogation (2 ed.) 195, note 3, as to the right of a surety to compel the principal to pay a debt after it has become due.

Eeference máy be had also to Stump v. Rogers, 1 Ohio 533, in which it was held that a surety may proceed against the principal in equity, to have his estate subjected to the payment of a debt, without making payment himself, before commencing suit.

Now, the Otts are not said anywhere in this petition, in words, to have become, as between them and Schick, the principal debtors upon these several debts, but we think that that is the result of the allegations in the petition, in the first and second causes of action. It is alleged that Schick was to incur these obligations, or that he was to carry on this business; it is stated also that the creditors had no knowledge whatever of the relation which the Otts bore to it. I do not know that that is alleged in the petition, but it is conceded in argument before us.. As between the Otts and Schick, we think the relation of principal and surety arose, assuming these allegations in the petition to be true. That being so, if the debts had become due prior to the beginning of this suit, we think then that Schick might properly have brought suit against the Otts to compel them to pay the debts so incurred.

Some question has arisen as to who would be the proper parties in such an action.

In Horst v. Dague, 34 Ohio St. 371, or perhaps more properly in the dictum on page 375 in the opinion, is a suggestion that the creditors are necessary parties. It is not very apparent as to just what creditors are to do when they are brought in, unless perhaps do what I find one of the creditors did in this particular case, — one represented by Judge Mills of Sandusky, — who has filed'a cross petition asking for judgment upon his claim, asking, for it; however, against Schick, without mentioning the Otts, if I remember aright. We simply notice that in looking over the files; however, it has no special bearing upon this case, but whatever may be the rights of the creditors, when brought into the case, they are not here sued in the sense that any relief is asked against them, that is, any judgment asked against them.

There is a prayer, or there is something in the prayer of the petition in the way of seeking to bar them against any future assertion of their claims, unless they assert them in this action, and the explanation of that in the argument is, that counsel desires to avoid a multiplicity of suits and so brings in all these several claimants.

Under all the circumstances, we do not, at this stage of the matter, feel it necessary to indicate what would or would not be the rights of the creditors when brought into the suit and we have concluded, in view of the manner in which this case has come to us, and the apparent misapprehension of just what were the rights of the parties in the mind of the judge below and the counsel for the plaintiff in error, to set aside the judgment rendered and remand the case for further proceedings. We think, as I have already stated, that the facts as stated in the. first and second causes of action, do not constitute a cause of action against the creditors, or against the Otts, by reason of a failure to show that the debts have become due.

We think there is a good cause of action stated against the Otts in the third cause of action. We think there is a misjoinder of the causes of action and that by reason of the misjoinder of the causes, the demurrers should unquestionably be sustained and there should be a redocketing of the eases separately and that then the court below, should take such proceedings as may be proper, and if the court sees fit to permit tbe plaintiff in error to amend so as to show that the debts have become due, referring to the debts described in the first and second causes of action, that would be entirely within the province of the court below.

We have concluded that, under the circumstances, we would permit the cases to be docketed separately, so that each cause of action will stand upon its own. foundation, unless perhaps the first and second may still stand together and the question then be fairly raised again upon demurrer, if the counsel sees fit, or otherwise.

The costs will be divided half and half between Schick and the O'tts.

Haynes and Parker, JJ., concur.