author: Gorman, J.

text:
    INJURY TO TENANT DUE TO DEFECT IN PREMISES.
    Court of Appeals for Hamilton County.
    Joseph L. Roberts, Clara B. Skaats and Fannie F. Griffith v. Jennie Fulton.
    Decided, January 3, 1916.

      Landlord and Tenant — Bub-Tenant Injured by Breaking Through Floor —Liability of Landlord Can Not be Based on Covenant to Make Repairs.

    The fact that a landlord has covenanted to make needed repairs on property leased as an entirety does not render him liable either to the lessee or to a sub-lessee on account of injuries received through failure to make such repairs.

      E. 8. Aston and Clyde P. Johnson, for plaintiffs in error.

      Tjouís P. Pink, contra.
   Gorman, J.

The defendant in error, Jennie Fulton, recovered a judgment against the plaintiffs in error in the court of common pleas. She was a tenant in the premises known as No. 698 West Fifth street, occupying two rooms on the second floor thereof. She rented her rooms from one James P. Bolger, and Bolger rented the entire premises from plaintiffs in error at .a rental of seventy dollars a month. .Bolger and his father before him had rented the entire building during many years prior to the time that the cause of action arose. There was no written lease between Bolger and the plaintiffs in error, nor was there a written lease between Jennie Fulton and Bolger. By verbal agreement between Bolger and plaintiffs in error, for whom Joseph L. Roberts acted as agent, they were to make certain repairs on the building, such as repairing the roof, the floors and the woodwork generally in the building, but they were to do no papering or whitewashing; those repairs were to be made by Bolger.

There was a hallway running along the two rooms occupied by defendant in error, and from this hallway there was an alcove, or small hall or vestibule, from which a door led into each of Jennie Fulton’s rooms. The only means of access to her rooms was through the large hallway into the small hallway or vestibule and thence into her rooms, the small hall or vestibule separating the two rooms. They were evidently so arranged that the two rooms might be rented out separately.

On the night of October 31, 1912, about three months after Jennie 'Fulton became a tenant in these two rooms, she had occasion to leave her rooms for the purpose of getting water from the hydrant at the end of the large hall on the floor on which her rooms were situated. As she passed out of one of her rooms into the small vestibule and just before she reached the large hall she broke through the floor, on account of the want of repair of one of the boards in the floor, and a nail protruding between the broken boards ran into her heel and resulted in serious injuries to her. She was confined to the hospital and in her house for quite a long time, and at the time of the trial the injuries were still manifest and it was probable that she was permanently injured.

It. is claimed by plaintiffs in error that no liability rests upon them upon the above statement of facts, being in substance the facts established in the trial of this ease, and that therefore the judgment in favor of the plaintiff below should be set aside and held for naught.

This court is of opinion that there was no legal liability resting upon plaintiffs in error to the defendant in error, and that she was not entitled to recover, upon the state of facts shown by the record in this case.

We think this case is controlled by the case of Burdick v. Cheadle, 26 O. S., 393. Mrs. Fulton was not a tenant of Roberts, she did not rent from him, and there was no privity of estate between her and the plaintiffs in error. She was a tenant of Bolger, and for any injuries which she received because of the neglect to keep the premises in repair she must look to Bolger, and not to Roberts, for damages or compensation. The ease of Burdick v. Cheadle has not been overruled by the Supreme Court and appears to be the law of this state, whatever may be the rule laid down in other states. In that ease it was held in the syllabus that:

“The defendant, being the owner of a lot of ground, erected thereon a storehouse, and afterwards leased the storeroom and agreed with the lessee to construct therein cornices, shelvings and fixtures, in a secure, safe, convenient and proper manner for the sale of dry goods and groceries, and to keep the premises in good order. The fixtures put up under the agreement were unsafe and insecure from the want of sufficient fastening to the walls of the building — all of which was known to defendant, who, on request of the lessee, refused and neglected to repair. Afterward, and while the room and fixtures were in the possession of the lessee, the shelvings fell and injured the plaintiff, who was, at the time, in the storeroom as a customer of the lessee. Held: The facts stated do not constitute a cause of action against the defendant and in favor of the plaintiff. ’ ’

To the same effect is the rule laid down in the ease of Shindelbeck v. Moon, 32 O. S., 264.

These cases were approved by the Supreme Court in the case of Stackhouse v. Close, 83 O. S., 339; the court, Johnson, J., on page 351, uses this language:

" A lessor of a building is not liable to the lessee or others lawfully on the premises, for its condition, in the absence of actual or constructive concealment, or of any agreement, or of the violation of a duty imposed by statute. Shinkle v. Birney, 68 Ohio St., 328; Burdick v. Cheadle, 26 Ohio St., 393; Shindelbeck v. Moon, 32 Ohio St., 267.”

The circuit court of this county, the predecessor of this court, in the case of Schradski v. Butler, decided April 26, 1933, affirmed the judgment of the court of common pleas, upon the authority of the opinion announced by the trial court on a motion for new trial, reported in 9 Ohio Law Reporter, 127.

But it is contended by counsel for defendant in error that the case of Stackhouse v. Close holds that the owner of premises is liable in a case similar to the one at bar. The case of Stackhouse v. Close is one in which Close, the owner, had leased the entire premises to the United States Coaster Construction Company, which company had' sublet part of the premises for lodge purposes, and the plaintiff in the case, Mrs. Stackhouse, was injured in an elevator while going to the lodge in the building.

We think that case can be distinguished from the case at bar in that Mrs. Stackhouse was a member of the public, a third person, while Mrs. Fulton was not a member of the general public, but was holding under Bolger as a sub-lessee. Furthermore, in that case it was held that because the landlord reserved the control of the elevator and the right to make all repairs, and stipulated that no alterations or repairs could be made by the lessee without the consent of the owner, the owner thereby rendered himself liable jointly with the tenant or lessee, under the provisions 'of Section 4238-1, Revised Statutes, which provides that:

“ — It shall be unlawful for any person, society, firm, agent, representative of any private or corporate authority or society, of any committee, commission or board acting under any authorHv whatsoever, to erect, or cause to be erected * * * in th« state of Ohio any structure, room or place where persons are invited, expected or permitted to assemble, or for the purpose of entertainment, judgment, amusement, instruction, betterment, treatment or care, or to make any addition to or alteration therein which shall in construction, arrangement or means of egress be dangerous to the health or lives of persons so assembled- — ”

and the Supreme Court held that the owner, by requiring no alterations, changes or repairs to be made without his consent or supervision, thereby retained such control over the building, and especially the elevator, as rendered him liable to third persons who had occasion to resort to the building for any purposes whatsoever.

In the case of Burdick v. Cheadle, supra, at page 397, the court says:

“The general rule of law undoubtedly is, that persons who claim damages on the account that they were invited into a dangerous place, in which they received injuries, must seek their remedy against the person who invited them. There is nothing in the relation of landlord and tenant which changes this rule.”

Applying this rule to Mrs. Fulton, under the facts disclosed by the record, it is apparent that she was a tenant of Bolger, in the building, not through any arrangement or agreement with the plaintiffs in error; she was invited and permitted to be there solely as the tenant of Bolger, and for any damages which she may claim on account of injuries received in the building she must seek for a remedy against the person who invited her there — Bolger.

It is true that the Supreme Court in this ease of Burdick v. Gheadle has applied a different rule to third persons, the public generally, for it provides that:

“If they (the premises-) be unsafe or unfit, it is the duty of-the tenant to make them safe or to fit them for the intended use; and the landlord may reasonably expect that the tenant will do so.”

And on page 396 the court says: -

“But in ease a landlord undertakes with his tenant to keep the premises in repair, having thus reserved the control to the extent necessary for making repairs, his duty to the public in relation to the property is not affected by the lease, and he ‘remains responsible, under the doctrine-of the above maxim, for defects arising from the want of repairs during the continuance of the lease.”

The maxim above referred to is the well known one: “sic utere tuo ut alienum non laedas.” But this maxim applies, in the case of landlorad and tenant, to third persons who are strangers and not in the premises on invitation of the landlord.

In Jones on Landlord and Tenant, Section 592, this principle is stated:

“It may be stated as a general rule that a landlord, who has covenanted to repair, is not liable in tort for personal injuries resulting from the want of repair,” citing numerous cases in support thereof, among others Hanson v. Cruse, 155 Ind., 176, and then proceeds: “Such injuries are too remote to be recovered as damages for the breach of contract, and the duties arising from the relation of landlord and tenant are not increased by such a contract in respect to the duty of the landlord to provide for the personal safety of the tenant.”

And again, in the same section, the author says:

“Ordinary damages for breach of a general covenant to keep the premises in repair are the expenses of repair and the loss of the premises while the party contracting was in default.”

Tiffany on Landlord and Tenant, Section 87, page 592 (10), lays down this rule:

“A question of difficulty has arisen in connection with a landlord’s covenant to repair, as to whether the tenant can recover, as against the landlord, for an injury to his person or to his property on the premises, which would not 'have occurred had the landlord complied with his covenant. Such injuries resulting not directly from a breach of the contract, but from physical conditions existing apart from the contract, which the contract merely undei'tobfe to qUminate, ca'n not well be regarded as a proximate result of the breach of the contract within the contemplation of the parties at the time of the making thereof. To allow a recovery for such injuries is to allow a recovery as for tort on account of a breach of contract. As has been remarked, there is no more reason for allowing such a recovery against a landlord than against any other person, a carpenter or contractor, for instance, who fails to carry out his contract to repair the premises.” Citing Tuttle v. Gilbert Mfg. Co., 145 Mass., 169.

There will be found eases which hold that a landlord who has leased the entire premises and has covenanted to make repairs is liable to third persons — the public — but these authorities are few and far between, and the great weight of authority holds the contrary rule.

In the ease of Schradski v. Butler, Butler rented the premises to the sister of Mrs. Schradski, who was a member of the household. Butler promised to repair, failed to do so, and as a result of the failure, Mrs. Schradski was very severely injured. The common pleas court held in that case that the landlord, Butler, was not liable to Mrs. Schradski for the personal injuries sustained.

Without multiplying the authorities, we think that the law of this state is well settled that the owner of property is not liable where he leased the entire premises to a tenant and agrees to make repairs upon the premises, either to the tenant or sub-tenants or sub-lessees of the tenant. The mere fact that the landlord agrees to make repairs, does not put him in control of the premises. It is true he would have the right to resort to the premises for the purpose of making repairs, but that fact does .not give him control of the premises any more than he would have control of the premises because he would have a right to resort to the premises for the collection of rent, inspection of the same, or any other lawful purposes. Bolger, in this ease, was in entire control of the premises, and Bolger himself could not recover for injuries he might sustain by reason of the defect in the premises resulting from failure of the owner to keep the premises in repair under his agreement, and surely his gob-tenant or sub-lessee, Mrs. Fulton, would have no higher or better right than her immediate landlord — Bolger.

If the law were not so well settled.in this state on this question it might be instructive and useful to consider the decisions in other states. But the court is of the opinion that this case, in all its phases, is controlled by the ease of Burdick v. Cheadle and other cases cited.

For the reasons stated, the judgment below is reversed and the cause remanded for further proceedings.

Jones (E. H.), P. J., and Jones (Oliver B.), J., concur.


source: Caselaw Access Project

author: Jones (Oliver B.), J.

license: Public Domain

text:
    PAYMENT REQUIRED OF A TRACTION COMPANY FOR. STRENGTHENING A VIADUCT IT NO LONGER. USES.
    Court of Appeals for Hamilton County.
    The Cincinnati Street Railway Company and The Cincinnati Traction Company v. the City of Cincinnati.
    Decided, January 10, 1916.

      Franchise — Condition to the Advantage of the Municipality Enforcible —Notwithstanding it Does Not Inure to the Benefit of the Grantee —Traction Company Required to Contribute Toward Strengthening a Viaduct it Does Not Use.

    The provision contained in the fifty year franchise granted by the city of Cincinnati to the Cincinnati Street Railway Company, that in the event the Liberty street viaduct should be reinforced by the city so as to make it safe for heavy vehicular traffic or electric cars the street railway company should be required to contribute $7,000 toward the expense thereof, was one of the conditions upon which the granting of the franchise was based, and the obligation thereby imposed upon the street railway company was neither abrogated nor in any manner modified by a subsequent ordinance providing for the removal of the car line from the viaduct to other streets and to which removal the street railway company consented.

      Joseph Wilby and George U. Wcurrington, for plaintiffs in error.

      Walter M. Schoenle, City Solicitor, and Constant Southworth, Assistant Solicitor, contra. '
   Jones (Oliver B.), J.

One of the many terms and conditions contained in the resolutions passed by the board of administration of the city of Cincinnati August 13, 1896, providing for the extension of routes and franchises of the Cincinnati Street Railway for a period of fifty years under the so-called Rogers law, was Section 18 of said resolutions, as follows:

“18. Whenever the city of Cincinnati and the county of Hamilton, or either, through its authorized officers, shall desire to reinforce the Liberty street viaduct, situated on Liberty street between Garrard and State avenues, so that it will be safe for the operation of heavy vehicular travel or electric cars over the entire structure, the said the Cincinnati Street Railway Company shall be required to pay $7,000 towards defraying the expenses thereof. ’ ’

All the terms and conditions of said resolutions were accepted and agreed to by said company on the same day they were passed and a bond was then given for the faithful performance of all the provisions of said resolution.

In February, 1901, the Cincinnati Street Railway Company, with the consent of the city, leased to the Cincinnati Traction Company all of its properties, routes and franchises, subject to the terms and conditions of said resolutions’ of August, 1896.

Prior to September, 1909, the city, at an expense of much more than $7,000, to-wit, about $189,000, reinforced Liberty street viaduct so that it was safe for heavy vehicular travel. Demand was made by the city .on the Cincinnati Traction Company for the payment ,of $7,000 toward this expense. This demand being refused, suit was brought in the action below against both of the plaintiffs in error, as defendants, for the recovery of said sum.

The county of Hamilton originally built this viaduct and it was afterwards taken over by the city some time prior to the passage of said resolutions, at which time horse ears were being operated over it as part of what was called the Seventh street route.

Similar answers were filed by each of the defendants, setting up two defenses:

The first defense was to the effect that said Seventh street route had been, under resolutions of the board of public service of the city agreed to by the traction company, changed so that it no longer extended from Liberty street over said viaduct to State avenue, but instead ran from the intersection of Dalton avenue and Liberty street to the base ball park-at the intersection of Findlay and McLean avenues. Since the construction of the necessary tracks the traction company has operated its Seventh street route over the new route, so changed, with its terminus at the base ball park, and no electric cars were ever operated over said viaduct. There are no street car tracks, nor is there any provision for them on said viaduct as reinforced by the city in 1909, but all tracks and rails were removed from the viaduct, as it existed in 1896, by the city or by the street railway company with the'assent of the city, shortly after the date of the resolutions of August 13, 1896, and no tracks have been constructed thereon since.

The second defense in defandants’ answer denied that the via-duet had been so reinforced by the city as to make it safe for the operation of electric cars over the entire structure, alleging that it was not safe for the operation of electric cars and heavy vehicular travel, and was unsafe for the practical operation of electric cars of the present type, and that to so operate would be dangerous to ears and passengers as well as to pedestrians using said viaduct.

A demurrer was sustained to the first defense of the answers, defendants each reserving an exception. Upon trial, plaintiff having offered evidence to sustain all of the allegations of the petition, defendants then offered evidence to prove the several allegations set out in the first defense of their respective answers, which had been stricken out by the sustaining of plaintiff’s demurrer. This evidence was excluded by the court, to which defendants excepted and offered no further evidence, but requested an instructed verdict in their favor, on the following grounds:

“(1) That the plaintiff has offered no evidence tending to prove that the Liberty street viaduet has been reinforced so as to be safe for the operation of electric cars over its entire structure.
“(2) That the evidence shows that the city of Cincinnati and the defendants had agreed to abandon the use of the Liberty street viaduet for street railway traffic.
“ (3) That no provision has been made or was ever made in the reinforcement of the Liberty street viaduct for the operation of street railway cars; and that there has been a failure of the consideration stipulated to be paid by the defendants as set forth in paragraph 18 .of the resolutions of August 13th, 1896.”

The court charged the jury—

' ‘ that if you find from the evidence that this resolution, known as paragraph 18 of the franchise described, was passed and accepted by the Cincinnati Street Railway Company, that it thereupon became a binding contract between the two parties; and if the city of Cincinnati reinforced the Liberty street viaduct so that it was safe for heavy vehicular travel, these companies, the defendants herein; would be liable for the amount claimed, which they agreed to pay.”.

A verdict was returned for plaintiff, upon which judgment was entered.

Plaintiffs in error urge that a proper construction of clause 18 of the franchise resolution requires that as a condition of payment of the $7,000 the viaduct must not only be made safe for the operation of heavy vehicular travel, but also for electric ears. In other words, that the word “or” should be made to read “and.”

This argument is based-upon the idea that the reinforcement of the viaduct would be of no special benefit to the traction company unless its ears could run over it, and that it had no interest in the matter of its use for other heavy vehicular travel. Such an argument might well be used as an objection to the acceptance of the franchise clause in the form in which it was written. But it is one of the many conditions found in that franchise. Counsel for the traction company concede that it might have been drawn to provide for an absolute payment of $7,000 simply upon the acceptance of the grant, or at any particular time or on the happening of any particular event. It does so provide for the payment upon the reinforcement of this viaduct to be sufficient for either of two purposes. The traction company may have had no interest in any vehicular travel upon the viaduct other than the electric cars; the city, however, had an interest in such other vehicular traffic, and this condition was for the benefit of the city and was therefore inserted in the alternative form in which we find it. If, as counsel contend, the present heavy type of electric car — which is considerably heavier than any other present form of “heavy vehicular travel” — was then, in contemplation and must be provided for before the payment can be demanded, then the use of the words “heavy vehicular travel” would be superfluous.

• The language as written does not make the continued use of the viaduct for street railway purposes a prerequisite to enforce payment. It is conceded that the route was abandoned and that the tracks were removed by the consent of defendants below. If by such change it had been intended to relieve the traction company from the payment required from it by clause 18, it might well have been so provided in the resolutions as one of the conditions of the change of route. The fact that this was not done must be construed to show that the parties to the agreement did not regard the continued use of the viaduct as in any way essential to the obligation to pay such a small part toward the repair of a structure that had been previously used by horse cars without, so far as is shown by the record, any contribution to its cost or maintenance by the street railway company. The proportionate share of cost, which may be charged against a traction company where a viaduct is constructed for the abolition of a railroad crossing at grade, is allowed by statute (U. 0., 8892) to be so much greater a percentage that the small amount here provided could hardly be deemed to have been intended as the proper share of the necessary cost to be borne by the traction company for the continued use of the viaduct for electric cars during the life of the franchise.

The fact that the change of route, made with the consent of the traction company, has taken away its right to now occupy the viaduct makes it of no importance to it whether the reinforcement made has or has not so strengthened the viaduct as to support the operation thereon of electric cars.

In the construction of ambiguous language, both of laws and of contracts, courts have at times found it necessary to change the word “and” to “or” and vice versa. But no ease will be found which would authorize such change in the language under consideration. In fact, in the opinion of the court, the words used in clause 18 are clear and without ambiguity, and no occasion arises requiring interpretation of the language used, contrary to its plain meaning. Slingluff v. Weaver, 66 O. S., 621.

If there were any doubt in the matter as to the construction of this franchise condition, that most favorable to the city should be adopted. East Ohio Gas Co. v. Akron, 81 O. S., 33, 52; Railroad Co. v. Defiance, 52 O. S., 262, 307; Cincinnati v. Cin. St. Ry. Co., 12 N.P.(N.S.), 305, 308 (affirmed by Supreme Court), 13 O. L. R., 83; Detroit U. Rys. Co. v. Detroit, 229 U. S., 39.

The duty of making this payment of $7,000 towards the expense of reinforcing this viaduct thus being one of the obligations imposed by the terms of the franchise, Sections 9102 and 3771 of the General Code forbid any release therefrom by the officers of the city.

Judgment affirmed.

Jones (E. H.), P. J., and Gorman, J., concur.


author: Richards, J.

text:
    QUESTIONS PERTAINING TO ATTACHMENT.
    Circuit Court of Erie County.
    Myrtle Crosby v. The Sandusky Gas & Electric Co.
    Decided, May 7, 1912.

      Attachment — Question of Ownership of the Property Attached Can Not he Raised on Motion to Discharge the Attachment — Right to Exemption Not Acquired hy Marriage, When — Waiver of Question as to Right of Appeal.

    1. A claim by the defendant in a suit in attachment that the property attached belongs to another can not be determined on motion to discharge the attachment.
    2. The marriage of the defendant, after the attachment is levied but before sale of the property, does not afford ground for the claim that the property is exempt from attachment.
    3. Any question as to the right of appeal from an order of the justice of the peace discharging the attachment is waived by going to trial in the common pleas court on the merits without raising the objection.

      B. B. Fisher, for plaintiff in error.

      King Bcrnsey, contra.
   Richards, J.

The Sandusky Gas & Electric Co. brought an action before a justice of the peace of this county against Myrtle Crosby to recover on an account for gas and electricity furnished to her for use in her residence. The action was. accompanied by an attachment. Summons was issued on the 15th day of November, 1911, and was served on her the same day. Accompanying the summons was an order of attachment which was levied the same day on certain property claimed to be owned by her. One of the grounds for the attachment stated in the affidavit therefor was that the gas and electricity furnished were necessaries. Before issuing the order of attachment the justice took from the plaintiff in his court a bond in which it is recited that “We bind ourselves to the defendant, Myrtle Crosby. ’ ’ etc. The bond is signed "The Sandusky Gas & Electric Co., E. A. Beckstine, Mgr.”

The justice, by entry upon his docket, approved of this bond and the surety thereon. Myrtle Crosby was married on the day following the levy of the attachment issued against her, and thereupon moved to discharge the attachment for various reasons, among which are that the property was exempt from attachment, and that in fact it belonged to her husband. When the case came on for hearing in the justice court he discharged che attachment and rendered a judgment against the Sandusky Gas & Electric Co. for the costs made on the attachment, and judgment in favor of the company against Myrtle Crosby for the full amount claimed in the bill of particulars. I might say, in passing, that at no stage of the case was the amount sued for before the justice disputed by Myrtle Crosby. The Sandusky Gas & Electric Co. filed with the justice an appeal bond in the sum of $600, being twice the appraised value of the attached property, by which bond it undertook to appeal from the decision of the justice discharging the attachment and adjudging costs on the attachment against it.

On the trial of the case in the court of common pleas that court 'overruled the motion to discharge the attachment. Subsequent to the hearing of the case in the common pleas court on the merits, Myrtle Crosby filed a paper objecting to the jurisdiction of' that court over her person.

The case is brought to the circuit court by a petition in error and á bill of exceptions containing all the evidence. The eon'clusions reached by us will be briefly stated. The claim made by the plaintiff in this court that the property attached belongs to her husband can not be investigated nor determined upon a motion to discharge the attachment. That principle was announced by the Supreme Court in Langdon v. Conklin, 10 O. S., 439, more than fifty years ago and has ever since been followed.

The marriage of the defendant on the day following the levy of the attachment does not entitle her to claim the property as exempt from attachment. Selders v. Lane, 40 O. S., 345; 2 C. C., 63; 13 C. C., 530.

Some contention exists as to whether the plaintiff in attachment before the justice had the right to appeal from the order discharging the attachment and adjudging the costs against it. Without determining that question, we are unanimously of fhe opinion that by going to trial in the common pleas court on the merits without having challenged the jurisdiction of the latter court the defendant waived any right that may have existed to deny the appealability of the action. The point appears to have been determined by the Supreme Court in Drake v. Tucker, 83 O. S., 97.

Finding no prejudicial error, the judgment of the court of common pleas will be affirmed.

Wildman, J., and Kinkade, J., concur.


text:
    CRIMINAL JURISDICTION OF JUSTICES OF THE PEACE IN HAMILTON COUNTY.
    Court of Appeals for Hamilton County.
    In re Application of George Hesse for a Writ of Habeas Corpus.

    Decided, March 22, 1915.

      Justices of the Peace — Without Criminal Jurisdiction in Cincinnati Township — Municipal Court Act Not Affected by Section 13423.
    The special jurisdiction given to justices of the peace, police judges and mayors in criminal cases, conferred by Section 13423 as amended April 28, 1913, in no way modifies the Cincinnati Municipal Court act which gives to that court exclusive jurisdiction in- Cincinnati township.

      H. G. Bolsinger and Pogue, Hoffheimer <& Pogue, for plaintiff in error.

      Max Levy, contra.

       Affirmed by the Supreme Court, In Re Application of George Hesse, reported in 93 Ohio State.

   Gorman, J.

This is a proceeding in error to reverse a judgment of the court of common pleas discharging George ITesse from the custody of George L. Timberlake, a constable of Mill creek township, who held said Hesse under a warrant issued June 5, 1914, by Charles T. Dumont, a justice of the peace of Millcreek township. •

The record discloses that ITesse at the time of his arrest was a citizen and a resident of Cincinnati township, and was charged with the commission of a misdeméanor in Cincinnati township-cruelty to animals. The sole question before this court is whether or not the justice of the peace had jurisdiction to issue the warrant.

Counsel for the complainant, Hesse, contend that under the provisions of the act creating the municipal court of Cincinnati, 103 Ohio Laws, page 27, Section 41, no justice of the peace outside of Cincinnati township had jurisdiction to issue the warrant under which Hesse was arrested. The section in substance provides, among other things, that no justice of the peace in any township of Hamilton county, outside of Cincinnati township, shall have jurisdiction in any criminal proceeding in which a warrant, order of arrest, summons, order of attachment or garnishment or other process except subpoena for witnesses, unless the offense charged shall be alleged to have been committed within said township where the warrant is issued. Section 43 of said act deprives justices of the peace of Cincinnati township of all criminal jurisdiction.

Counsel for the constable, Timberlake, maintain that by virtue of the act passed April 28th, 1913 (103 O. L., 539, 540), the jurisdiction of justices of the peace in Hamilton county in criminal cases was fully restored; that inasmuch as the act creating the municipal court was passed April 17, 1913, eleven days before the act of April 28, 1913 (103 O. L., 539), to the extent that it affects the jurisdiction of justices of the peace in criminal matters, the municipal court act has been repealed or modified by implication. There was no express repeal. The act of April 28, 1914, was an amendment to Section 13423, which had been a part of the General Code and the Revised Statutes for several years.

This Section 14323 prescribed the jurisdiction of justices of the peace throughout the state as to many eases therein enumerated. Prior to the amendment of April 28, 1914, there was embraced in this section under sub-head thirteen classes of cases in which justices of the peace, police judges and mayors of villages were authorized to act. The act of April 28, 1914 (103 O. L., 539-540), added to this list of cases by amendment two additional classes of eases, sub-heads 14 and 15, to-wit, offenses for violation of the laws relating to weights and measures'and short-weighing and measuring. Section 13423, as it existed before its amendment in April, 1914, was and still is of a general nature and applies to all justices of the peace in the state, and it is therefore claimed by counsel for the constable that, being a. later law than the municipal court act, Section 41, it in effect, because of the conflict between the two laws, operated to impliedly repeal or modify Section 41 of the municipal court act. Now justices of the peace are no longer constitutional officers by virtue of the adoption of the new Constitution in 1912. See Article IV, Sections 1 and 9, and schedule. State, ex rel Goodman, v. Redding, 87 O. S., 388.

The office, since January 1, 1913, is purely statutory, and the Legislature has power to create or abolish the office, enlarge or limit the jurisdiction thereof. The act creating the municipal court of Cincinnati and prescribing its jurisdiction is a special act authorized by the Constitution, Article IV, Section 15. See State v. Block, 65 O. S., 370.

There is, therefore, no question of the validity of the two acts under consideration, the only question being whether both can stand because of their apparent conflict, and if they both can not stand, then has Section 41 of the municipal court act been repealed by implication? We are of the opinion that these two laws are not irreconcilable or in conflict, and that both are in full force and effect as valid expressions of the sovereign will of the Legislature.

The rule is well settled that repeals by implication are not favored, and this proposition is admitted by counsel for defendant in error to be true, and so true that no authorities need be cited in support thereof.

It is the duty of the courts to uphold and sustain all laws passed by the Legislature unless .they are palpably and manifestly unconstitutional or in irreconcilable conflict with some other legislation on the same subject. It is also the duty of the courts, if possible, to reconcile any and all apparent conflicts, differences and inconsistencies in the laws so as to permit all the acts of the Legislature to stand and render none nugatory. See Street Ry. v. Peace, 68 O. S., 200; Dodge v. Gridley, 10 O. S., 178.

In this latter case the Supreme Court said:

“Where two affirmative statutes exist, one is not to be construed to repeal 'the other by implication unless they can be reconciled by no mode of interpretation. ’ ’

This language was expressly approved in the case above cited, 68 O. S., 206.

The act creating the municipal court of Cincinnati is special, and applies only to Cincinnati and Hamilton county, whereas, Section 13423 as amended April 28, 1914, is general in its operations and applies to all justices except where the act is limited by some special act. The Legislature having the power to limit the jurisdiction of justices of the peace either by general or special legislation, has expressly limited their jurisdiction in Hamilton county in the manner specified in the special act creating the municipal court of Cincinnati (Section 41). The provisions of this special act, even though enacted prior to the amendment of Section 13423, General Code, a general statute, modifies the provisions of that section so as to make part of the jurisdiction therein conferred on justices of the peace in general applicable to justices of the peace in Hamilton county outside of Cincinnati township. It stands as though Section 41 of the municipal court act were added on as an exception to the general Section 13423, General Code.

The Legislature, when it amended Section 13423, will be assumed and presumed to have had knowledge of the passage of the act creating the municipal court,' and if it had intended to repeal or modify Section 41 of that act, doubtless it would have done so in unequivocal terms. It did not expressly repeal this Section 41 of the municipal court act, and we are of the opinion that the provisions of this special act (Section 41) in Cincinnati township supersedes and takes the place of the more general provisions of Section 13423. See R. R. Co. v. County, 71 O. S., 454-457; State v. Borham, 72 O. S., 358, where the court on page 363 in commenting on a case similar to the one under consideration said:

"We are constrained to the conclusion that Section 1817 was intended by the General Assembly as an exception to the general provisions of 7146.”

Furthermore it appears that the amendment to Section 13423 simply added two additional subdivisions to the statute and was not the enactment of new legislation. If this amendment had not been made, it would scarcely be claimed now that Section 41 of the special municipal court act had been repealed by implication. How, then, can it be claimed that a minor amendment to the section which had been in force for a long time, had the effect of repealing a special act which by fair interpretation may stand as an exception to the general provisions when it is apparent that the Legislature had no intention of repealing it ?

For the reasons stated we are of the opinion that the justice of the peace, Charles T. Dumont, had no jurisdiction to issue the warrant in this ease, and the judgment of the common pleas court is affirmed.

Jones (E. H), P. J., and Jones (Oliver B.). J., concur.


author: Houck, J.

text:
    PROSECUTION FOR KEEPING INTOXICATING LIQUOR IN DRY TERRITORY.
    Court of Appeals for Belmont County.
    Harold Stephens v. State of Ohio.
    Decided, June 23, 1915.

      Intoxicating Liquors — Keeping of, in Dry Territory — Exception of the Statute as to Bona Fide Residence Not Applicable, When.

    Where intoxicating liquor is found in considerable quantities in a room • . rented by the defendant in dry territory, and in which som.e of his other property was also found, the' exception embodied in Section 6102, General Code, as to liquor kept in drug stores and bona fide private residences is not applicable, where the room was but six feet wide and eight feet long and was without bed or bedding.

      Nathan H. Barber, for plaintiff in error.

      Smith, Howard & Thornburg, contra.
   Houck, J.

(sitting in place of Pollock, J..)..

This cause is here on error from the Common Pleas Court of Belmont County, Ohio. On the 10th day of July, 1914, the plaintiff in error, Harold Stephens, was charged in an affidavit filed before Mayor G. A. Colpitts, of Barnesville, Ohio, with a violation of the liquor laws of the state of Ohio.

The affidavit, charges that the said Harold Stephens, from the 8th day of July, 1914, to the 10th day of July, 1914, both inclusive, at the village of Barnesville, county of Belmont and state of Ohio, did then and there unlawfully keep a place where intoxicating liquors were then and there kept for furnishing and giving away as a beverage; that the keeping of said place as aforesaid by the said Harold Stephens was then and there prohibited and unlawful, and contrary to Section 13225 of the General Code of Ohio, and against the peace and dignity of the state of Ohio.

The said Harold Stephens was arrested on said charge, taken before said mayor, and entered a plea of. not guilty thereto. A trial was had, and he was convicted, and a fine and sentence imposed upon him by said mayor. A motion for a new trial was filed, heard and overruled. To the judgment of conviction and overruling, of the motion for a new trial error was prosecuted to the court of common pleas of this county, and the judgment of the .mayor was affirmed, and error is now prosecuted to this court to reverse the judgment of the common pleas court in affirming the judgment of the mayor.

Numerous grounds of error are alleged in the petition in error, but two grounds are relied upon in the 'brief of counsel for plaintiff in error, to-wit:

First, because the testimony is insufficient to sustain the judgment .of the court.

Second, because the judgment 'is against the weight of the evidence and is contrary to law.

The-evidence as disclosed by the record shows that the defendant below, the plaintiff in error, rented a room in a dwelling house occupied by Mrs. Fisher, in the village of Barnesville, Belmont county, Ohio'; that said room had no windows in it, and that the next day there was found in said room that was rented by the defendant below, the plaintiff in error, ninety-three bottles of whiskey in three sacks, a whiskey barrel, with a small door opening in the side, a coat and a note book therein with the name of EBarold Stephens on the flyleaf, and a picture of the mother of plaintiff in error. The evidence shows that the book found in the coat belonged to the plaintiff in error, and that the coat was one worn by him at or about the time of his arrest and conviction.

The plaintiff in error claims favor under Section 6102 of the General Code of Ohio, which reads as follows:

“In a territory in which the sale, furnishing or giving away of intoxicating liquor as a beverage is prohibited, the keeping of intoxicating liquor in a room, building or other place, except in a regular drug store or in a bona fide private residence, shall be prima facie evidence that such liquor is kept for unlawful sale, furnishing or giving away.”

The evidence, as shown by the record in this case, discloses the fact that the plaintiff in error never occupied this room as a residence, and, as a matter of fact, the evidence discloses that there was no bed or bedding in the room, and that the room was about six feet wide and eight feet long, and without windows, and that from the location of the building and its surroundings it would not be a proper room to be used as a habitation.

Counsel for plaintiff in error maintain that the room was a bona fide residence of the plaintiff in error, and that therefore the section of the statute above referred to is applicable to the (¡ase at bar, and by reason thereof the plaintiff in error was not properly or legally convicted of the offense charged in the affidavit.

From an examination of the record, and relying wholly and entirely upon it, and applying the above section of the General Code thereto, we are of the opinion that the plaintiff in error, the defendant below, was properly and legally convicted under the facts as disclosed by the record; and there being no error in the record prejudicial to the rights of plaintiff in error, the judgment is affirmed, and the cause remanded for execution.

Powell, J. (sitting in place of Metcalfe, J.), and Spence, J., concur.


text:
    ORDER. FOR PAYMENT OUT OF SUM DUE CONTRACTOR.
    Circuit Court of Cuyahoga County.
    Henry Soeder v. The City of Cleveland et al.
    Decided, March 20, 1902.

      Assignments — Intent of Parties Governs — That the Fund out of Which an Order is to he Paid is Derived from Several Sources Not Material.

    1. In determining whether an order, given by a contractor for the payment of a certain sum out of the amount due or to become due to him upon his contract is an assignment pro tanto of money in the hands of the drawee, the intent of the drawer and drawee is the determining factor.
    2. Where orders are given by a contractor to parties who have furnished labor and materials for the performance of the particular work which he was under contract to perform for the drawee, there is a strong presumption that the orders so given were understood to be payable only to the extent that there were funds in the hands of the drawee which would become due the drawer.
    3. The fact that the fund, from which a contractor directs the drawee to pay certain orders, consists of the amounts due him upon four several and distinct contracts will not prevent such orders being regarded as assignments pro tanto when such was the evident intention of the parties.

      Solders & Tilden, for plaintiff.

      Beacom, Balter & Carey, contra.
    Marvin, J.; Caldwell, J., and Hale, J., concur.
   This case was tried in this court on appeal. The facts are that one C. J. Hoffman entered into four several contracts with the city of Cleveland for the improvements of four streets in the city — Willett, West Cemetery, Wacle Park, and West Clinton streets.

After proceeding with the work a considerable time, finding himself unable to carry out a complete contract, he assigned all his interest in the contracts to Henry Soeder. At the time of such assignment there were assignments which had been made for the payment of work to be done under the contracts, to be made under estimate of the engineering department of the city.

A considerable amount of work on the several contracts had been performed for which payment had not been made at the time of the assignment of IToffman to Soeder. Prior to the time of the assignment of the contract made to Soeder various accounts had been made out by parties who had furnished material and labor, and it is said that they became Hens or prior charges upon the fund, and as to that no question is here made. But in addition to that orders had been given by Hoffman upon the director of accounts of the city for the payment of certain sums, and the questions here are with reference to such orders. These orders not having been accepted or paid at the time of the assignment of the contracts by Hoffman to Soeder, the question to be determined is whether they amount to an assignment for the amounts for which they were drawn, that is, an assignment of that part of the money owing to Hoffman upon the contract. One of these ivas made to one Henry C. Heman, and reads:

“April 3, 1899.
“Director op Accounts,
“Dear Sir: Please give Henry C. Heman voucher for $119.20 for labor and material furnished by him in making the approach to Willett Street Viaduct, and charge same against my next estimate and oblige,
“Tours truly,
“C. J. Hoffman.”

On the part of Heman it is insisted that this is surely an assignment of $119.20 out of the moneys which would be otherwise payable at the next estimate to Hoffman.

The others are different from the one that has just been read, and each of the several other orders are practically the same. I read the one to B. & N. Rich because- the reading of this latter will do for the reading of all the orders other than that of Heman:

Cleveland, Ohio, January 19, 18.99. Mr, Rpsstter, Director of Accounts,
City of Cleveland,
Please pay to bearer, B. & N. Rich Co. ($141.35), one hundred and forty-one and 35/300 dollars, and charge the same to any estimate which may become due me.
Yours respectfully,
C. J. Hokfman.

Remembering that there are four several contracts that Hoffman had with the city, it is said that in any event this was not such a direction to pay out of a particular fund in any wise as to make this an assignment of any part of the money that would be due Hoffman upon the estimate.

The authorities are uniform that, where an order is made for payment out of a particular fund, such an order is an assignment pro tanto of money in the hands of the drawee to the payee of the order.

They are equally uniform that where the order is for the payment of a certain sum with the designation of a fund out of which a drawee may reimburse himself, and not an assignment of an amount to be taken out of the fund, except where the bill is for the entire amount owing by the drawee to the payee, such order is not an assignment.

The authorities are uniform in this, that the intent of the parties, the drawee and the payee, is to determine whether there is an assignment, an equitable assignment of so much of the fund as is necessary to pay the order, or that it shall be a bill of exchange so that, if accepted by the drawee, it would be payable at all events. A large number of cases have been examined: 62 O. S., 637; 45 Wis., 403; 42 Ind., 527; 44 Me., 496; 263 Mass., 6, and a case in 3 Nisi Prius Reports, 282, opinion by Judge Smith of the Superior Court of Cincinnati, and others we have examined, all make it clear that in some of the cases orders very similar to those of Rich’s hero, are held to be assignments. The intention of the drawee and drawer must govern in each instance.

If these several orders are to be treated as bills of exchange, then an acceptance, unqualified, of either of these would have held the drawee to the payment of the amount named in the order. If they are assignments, an acceptance would only have required the payment of such as there was money applicable to the payment thereof.

In determining the intention of the parties here, one can not overlook the fact that Hoffman was under contract for the performance of particular work, for which he was to receive money, and that the parties to whom the orders were given were those who had furnished material or labor for the performance of that work; the conclusion seems almost irresistible that they must have understood, not that these orders, or most of them, were to be absolutely payable at all events, but only to the extent that a particular fund that would otherwise be payable to Hoffman should be in the hands of the drawee.

It is said, there being four contracts here, that in such an order as this drawn to Rich and others which are like it, there could not- be a particular fund out of which it was necessary to be paid because there would be four funds. It is conceded as to Heman that that might be different, as it was for work done and labor performed in making the approach to the Willett Street Viaduct. But, as to any of these, if accepted, is it possible that the acceptor would have been liable for the amount? Could it have been so understood by the drawee and the drawer ? One can hardly doubt that it must have been understood that nothing was to have been paid upon these except out of the fund which would otherwise be payable to Hoffman. This is strengthened by the fact that the orders were made upon municipal authorities who would have no right to bind the municipality by accepting such orders, beyond the amount which would otherwise be payable to Hoffman, and, in this connection, attention is called to the case of Reeside v. Knox et al, 2 Wharton, 233.

An order was made upon the Postmaster-General of the United States, which reads:

J'Sir: On the first day of January, 1836, pay to my order $5,000, for value received, and charge the same to my account, for transporting the U. S. mail, and oblige,
“Tour Friend, J. R.”

On page 238, in the opinion, Judge Gibson uses this language:

“The officer, being the public agent, would not have been liable on an absolute acceptance; and the government itself would not liave been liable, for it gave him no authority to bind it. The public officers may, doubtless, draw or receive bills to facilitate the business of their departments;- but they would transcend their power, did they attempt to pledge the responsibility of the government as a merchant or a banker in. the money market."

Now the reasoning there seems fairly applicable to this case. We should have no trouble with this case at all if the case of Little v. Carran et al had been disposed of. It is found in 40 O. S., 397, and is a suit brought by Little against Carran as endorser of a draft which reads:

“Cleveland, August 13, 1873.
“$1,125. •
“On the 8th day of April, 1874, pay to the order of T. J. Carran, Esq., eleven hundred and twenty-five dollars and charge to my quarter’s salary as city official solicitor, due at that time, demand and protest waived. Yalue received and place to account of W. C. Bunts.
“To S. T. Everett, Esq., City Treasurer.
“Endorsed: Thomas J. Carran.”

Wm. C. Bunts died before April 8th, at which time this draft was to have been paid, and at which time the amount was to have been due him as solicitor of the city of Cleveland. Carran had endorsed this order to Little and Little brought suit upon it against Carran; and it was held in that case, by the Supreme Court, Judge McCauley delivering the opinion, that that was a bill and not an assignment of the amount of $1,125 out of the salary of Bunts.

As was said in the argument here it seems never to have been cited in any reported case.

In addition to that, stress is laid in the opinion upon the language used in the order, “demand and protest waived.” The court say that it was clear that the drawer, Mr. Bunts, understood that he was himself liable for this as upon a bill, if it should not be paid by the drawee. It was not an assignment.

To the extent that the decision in this case is governed by the words “demand and protest waived,” it differs from the ease we have here.

We hold that these several orders each constitutes an assignment of the fund to the extent necessary to pay the several orders, and that they are not bills or to be treated as such.


text:
    COSTS IN UNSUCCESSFUL APPROPRIATION PROCEEDING.
    Circuit Court of Cuyahoga County.
    Frederick Ohmenhauser v. W. S. Kerruish.
    Decided, March 23, 1901.

      Costs — Attorney’s Fees — Costs and Attorney’s Fees Not Taxable Against Defendant Railroad Company in Unsuccessful Action for Occupation of Land.

    Where an action is brought in the probate court under Section 6448, Revised Statutes, for the value of land used and occupied by a railroad company, and results in a judgment for the defendant company, attorney’s fees and the costs in the case can not be taxed against the defendant company under Section 6438, Revised Statutes.

      Hamilton, Hamilton & Smith, for plaintiff: in error.

      W, S. Kerruish, contra.
    Hale, J.; Caldwell, J., and Marvin, J., concur.
   In April, 1895, the plaintiff in error had an action pending in the probate court against the Nickel Plate Railway Company in which he sought to recover compensation for land which he claimed was occupied by that company for its right-of-way. The action was brought under Section 6448 of the Revised Statutes of Ohio.

At the commencement of the action Ohmenhauser was represented by other counsel, but on the 13th day of April, 1895, he employed Kerruish to take charge of and prosecute that action. A trial was had before that court, resulting in a verdict in favor of Mr. Ohmenhauser, for about six thousand dollars. This, on motion for a new trial, was set aside by the court. A second trial resulted in a verdict for the defendant, the railway company, upon which, a judgment was rendered. Kerruish brought his action in the court of common pleas to recover for services so rendered. The defendant, the plaintiff in error, interposed to that claim, first, a general denial; second, a cross-petition in which he alleges that on the 2d day of March, 1896, he made a contract with the defendant in error, Kerruish, under and by the terms of which the defendant in error was then to take steps necessary to secure for him his costs, attorney fees and expenses incurred in the case to which I have above referred, which he negligently failed to do.

The reply denied the allegations of the cross-petition.

In -submitting the issue upon this cross-petition to the jury, the court said:

“Defendant seeks to recover certain damages as set forth in his answer in this ease, alleging that by reason of certain things that he was damaged in the sum of fifteen hundred dollars, and concluding his answer and cross-petition with a prayer for judgment for the sum of $299, with interest thereon, from the date stated by defendant in his answer and cross-petition.
' “Now, gentlemen of the jury, as a matter of law, I desire to say at this point that under the statutory law of this state that the defendant would not be entitled to recover in damages for the simple reason that the facts in this case clearly show that it is not within the purview of the statute authorizing the allowance of attorneys’ fees or expenses in the probate court for the reason that the suit was commenced by Frederick Ohmenhauser and not by the railroad company to appropriate the land in question and, therefore, I say to you, gentlemen of the jury, that in that regard the defendant in this ease in the opinion of the court, is not entitled to recover a judgment in any way whatever under the allegations set forth in his answer and cross-petition in this ease, and the evidence adduced in support of that allegation during the progress of the trial.”

The pleadings filed in the probate court were not offered in evidence and there is no evidence from which we can definitely determine what issues were there made, or upon what ground ‘the verdict and judgment in that ease were based. It does not, therefore, affirmatively appear that this charge was erroneous, or at least prejudicial. If, however, the issues there made were as stated in oral argument then we are of the opinion that the court correctly held that the statute, Section 6434, did not apply to the proceedings there had.

The plaintiff’s action in the probate court was brought under Section 6448 and resulted in a verdict and judgment for the defendant, the railway company; and certainly nothing appears in the evidence in this ease that would authorize the taxation of the costs, expenses and attorney fees in that proceeding against the railway company.

We find no error in this record, and the judgment of the court of common pleas is affirmed.


text:
    PROSECUTION OF ERROR TO POLICE COURT.
    Circuit Court of Cuyahoga County.
    S. S. Creadon v. State of Ohio.
    Decided, February 5, 1901.

      Criminal Procedure — Leave to File Petition in Error in Common Pleas Court Not Necessary.

    It is not necessary to obtain leave to file petition in error in common pleas court, to review the judgment oí a police court in a criminal case.

      Foran, McTighe & Baker, for plaintiff in error.

      Iiarvey B. Keeler, contra.
    Hale, J.; Caldwell, J., and Marvin, J., concur.
   In this ease the plaintiff in error, Creadon, was convicted in the police court for an offense under the statutes of the state upon the subject of gambling. He filed a petition in error in the court of common pleas, without leave. A motion was sustained dismissing this petition in error for the reason that it was filed without leave. This is the only assignment of error for which the judgment of the court of common pleas is asked to be reversed.

Section 7356 of tlie Revised Statutes of Ohio reads as follows:

‘ ‘ In any criminal case, including a conviction for a violation of an ordinance of a municipal corporation, the judgment or final order of a court or officer inferior to the common pleas court may be reviewed in the common pleas court; a judgment or final order of any court or officer inferior to the circuit court may be reviewed in the circuit court; and a judgment or final order of the circuit court or the common pleas court in cases of conviction of a felony or a misdemeanor, and the judgment of the circuit court in any other ease involving the constitutionality or construction of a statute, may be reviewed by the Supreme Court, but the Supreme Court shall not in any criminal cause or proceeding, except when its jurisdiction is original, be required to determine as to the weight of the evidence.”

Clearly under this section of the statutes, unless modified by some other statute, a judgment of the police court in a criminal case may be reviewed in the court of common pleas by petition in error filed without leave.

The following sections provide for the mode of procedure in prosecuting error authorized by this section.

We are unable to find any provision of the statutes limiting the effect of this section and requiring leave to be obtained before filing petition in error.

For error in sustaining the motion to dismiss said petition in error, the judgment of the court of common pleas is reversed and the case remanded.


text:
    MALICE MUST BE PROVED IN MALICIOUS PROSECUTION.
    Circuit Court of Cuyahoga County.
    The Hopwood Provision Company v. Fred. L. Joslyn and Frank Joy.
    Decided, May 20, 1901.

      Malicious Prosecution — Malice Not to be Inferred from Want of Probable Cause.

    In every action for malicious prosecution, malice is a necessary element to be proven as a fact and does not necessarily follow from the want of probable cause, though it may be inferred from it.

      Smith & Blake, for plaintiff in error.
    IF. II. Polhamus and IF. (J. Rogers, contra.
    Hale, J.; Caldwell, J., and Marvin, J., concur.
   Prior to October, 1898, the defendant in error, Joslyn, had for a period of years been employed by the plaintiff in error. That employment ceased about the date named. Some two months subsequent to that date, Joslyn was arrested for the crime of embezzlement. He was charged with collecting $3.75 belonging to the plaintiff, and unlawfully appropriating .the same to his own use.

At the close of the hearing before the justice of the peace issuing the warrant, he was discharged. Thereupon he commenced action in the court of common pleas, alleging that the plaintiff in error had instituted that prosecution against him maliciously and without probable cause. Upon the issues made by the pleadings trial was had, resulting in a verdict for the plaintiff in the sum of $2,500, for which, after the overruling of the motion for a new trial, judgment was rendered for the defendant in error.

Several errors are assigned:

1st. That the court erred in the. admission and exclusion of evidence.

2d. That the court erred in its charge to the jury.

3d. That the damages awarded were excessive.

First. We find nothing in the rulings of the court upon the admission and exclusion of evidence requiring a reversal of judgment.

Second. An action for malicious prosecution will lie only when there is a concurrence of the following circumstances: first, when a suit or proceeding has been instituted without any probable cause therefor; second, the motive in instituting it was malicious; and third, the prosecution has terminated in the acquittal or discharge of the accused.

Upon the subject of probable cause, the charge is without fault, but the element of malice was substantially ignored. Until the instructions were given to the jury upon the subject of the assessment of damages, there was no attempt to define that term. However, the order in which the different propositions are stated to the jury is not very material if the law is correctly stated. Upon that subject the court, among other things, said to the jury:

“And if you should find in this case that there was no probable cause for the arrest of the plaintiff existing at the time, and if you find that the defendant corporation occasioned his arrest without probable cause, then you may assume that that corporation acted with what the law calls malice, and that does not necessarily mean what we ordinarily mean when we use the word malice, that is, an existence of hatred; but the law regards malice as being present in this kind of an action, where an arrest has been procured without reasonable cause.”

From this the jury must have understood that malice followed as a legal inference, from a want of probable cause. If such be the correct interpretation, it was erroneous. The existence or non-existence of malice is always a fact to be found by the jury from the evidence submitted to them. The jury may, under certain circumstances, find the existence of malice from the want of probable cause, but it does not follow as a legal inference. There may be existing a want of probable cause without malice.

The proposition quoted, as it must have been understood and applied by the jury, was erroneous.

■ Third. Upon a careful review of the testimony as it appears in this record, we are also of the opinion that the damages awarded by the jury were excessive, and for that reason the motion for a new trial should have been granted.

As the case is to be remanded for a new trial, it is unnecessary to fix the exact amount of this excess.

For these two errors appearing upon the record, the judgment of the court of common pleas is reversed and the cause remanded for a new trial.


text:
    ACTION FOR. SPECIFIC PERFORMANCE AGAINST PARENTS.
    Circuit Court of Cuyahoga County.
    Elizabeth Schroeder and Frederick Schroeder v. Christian Schultz and Johanna Schultz.

    Decided, June, 1901.

      Evidence — Specific Performance — Circumstances Surrounding Parties to be Considered.

    In an action brought against a parent upon an alleged promise to convey certain real estate to a child in consideration of the child's promise to live upon and improve the same, there being direct conflict in the evidence as to the making of the alleged promise, the facts and circumstances surrounding the parties, including the apparent scheme of the parent for parcelling his real estate among his various children, will be considered.

      H. T. Cowin and Alex. Hadden, for plaintiffs.

      17. H. Polhamus and Jas. P. Wilson, contra,
    Marvin, J.; Caldwell, J., and Hale, J., concur.

      Affirmed without opinion, Schultz v. Schroeder, 68 Ohio State, 690.

   This case comes into this court by appeal from the court of common pleas of this county.

The plaintiffs were married to each other on the 8th day of November, 1887.

Tlie defendants are husband and wife, and are the parents of the plaintiff, Elizabeth Schroeder.

The plaintiffs, ever since the 11th of May, 1888, have lived in a house built on a tract of land consisting of twenty-five acres, situated in Warrensville township in this county, the title to which is in the defendants.

The plaintiffs seek for a decree that the defendants sha]l convey said tract of land to the plaintiff, Elizabeth Schroeder. The plaintiffs claim to be entitled to this conveyance because of a promise which they say the defendants made to them in 1887, shortly after their marriage; that such promise was made upon condition that the plaintiffs should construct a dwelling-house upon said premises and make the same their home; and that they have constructed such dwelling-house, and performed, on their part, every condition - to be performed to entitle them to the conveyance under the promises of the defendants. The defendants deny that such promise was ever made.

No question is made here but that if the plaintiffs were promised by the defendants a conveyance of the land upon condition that they make improvements and expended money thereon, and that they were put into possession of the premises under such promise, and have made improvements and expenditures upon which the promise was conditioned, the defendants would be estopped from refusing to make good their part of the promise. So that there remains only the determination of the questions of fact made in the case.

The defendants deny that any promise was ever made by them to convey the premises to the said Elizabeth. They say that although a dwelling-house, a barn and other improvements have been made upon the premises by the plaintiffs, they were made under a contract, not in writing, by which the plaintiffs, whenever they should give up possession of the premises, should receive from the defendants the amount of money expended by them for such improvements. They say that in 1895 an agreement was made between the parties as to the amount thus expended; that 1he plaintiffs agreed to give ur> possession of the premises, but that they failed to do so; that the defendants notified the plaintiffs at that time that they were ready to pay the money which had been expended by the plaintiffs in improvements upon the premises, and have ever since been, and are now, ready to pay such sum of money.

The evidence in the case consists chiefly in the testimony of witnesses, though certain exhibits have been introduced.

There is great conflict in the testimony of the witnesses. Some of them are clearly mistaken in their testimony, or fail to remember certain things that took place, or think they remember some things which never did take place.

The defendants are the parents of five children, two sons and three daughters, all of whom are married.

At the time when the plaintiffs claim the promise was made to them, the defendants were the joint owners of other lands, one tract of forty-six acres, and the tract of which the twenty-five acres was a part' — said tract containing in all, fifty-nine and three-fourths acres. In 1898 the defendants conveyed to their youngest son a parcel of tweniy-six acres out of said tract of forty-six acres and conveyed the remaining twenty acres of said tract to their daughter Emma, reserving in each deed a life estate to themselves. At about the same time they conveyed to their oldest son, John, all of the fifty-nine and tliree-fourths acre tract, except the twenty-five acre parcel which is claimed by the plaintiffs in this action. In the deed to John no reservation of a life estate to the grantors is made. Since the marriage of their youngest daughter, she being the one to whom no real estate has been conveyed, the defendants have given to he,]’ some $800 in money, and the defendant, Christian Schultz, has endorsed the bank paper of the husband of their said daughter, to the amount of something like $2,000, no part of which has he c ver been called on to pay, nor, so far as any evidence in this case shows, is he likely ever to be called on to pay it.

The conflict in the testimony is such as to make it entirely irreconcilable.

It is a painful thing to suppose that any of the witnesses deliberately stated what was not true; but we are forced to determine as best we can, what are the probable facts in the case.

The testimony of each of the plaintiffs is positive that the promise was made to them as claimed in the petition. The testimony of both of the defendants is equally positive that no such promise was made. It is certain that under some arrangement between the parties, the plaintiffs entered into possession of the premises claimed, and expended upon them money; that they have remained in the occupation of the house ever since and, except to the extent that the defendants can claim that by reason of the fact that Christian Schultz manured about five acres of the land in the winter of 1894-95, the possession of the entire premises has been continuously in the plaintiffs from the month of May, 1888. This manuring of the five acres is easily accounted for by the fact that there was undoubtedly, as shown by the testimony of all, a disagreement between the plaintiffs and the defendants in the fall of .1894 or the winter following, and the plaintiffs contemplated leaving the premises.

At that time a statement was made up by the plaintiff, Frederick Schroeder, and handed to the defendant, Christian Schultz. By this statement it was made to appear that if the plaintiffs gave up the property, there should be paid to them as reimbursement for their expenditures upon the premises, the sum of $342.87.

This statement, however, is erroneous to the extent of at least $60, because if the defendants were to take the property, the amount, last named, for which Schroeder in his statement gave credit to Schultz, should not have been so credited, on the theory that Schultz was to pay back to Schroeder all that Schroeder had expended; the $60 item is for expenditures made by Schultz upon the house, as shown by the statement, and, if Schultz was to resume possession and be the owner, that $60 was expended by him for the benefit of his own property. The other items for which the said Schultz is given credit in the statement, are for personal chattels, and were properly credited.

Assuming that the statement rendered was correct in other respects, the balance really to be paid by Schultz to Schroeder would have been $402.87 instead of $342.87. This same statement showed that Schroeder owed to Schultz $350, and this would be correct, except as to the $60 item, if Schroeder rejo ained upon the premises, but would have been but $290 if he left the premises.

The true balance, however, would have been as already stated, $402.87, which Schultz should have paid Schroeder if he gave up the premises. That this whole plan was abandoned is evident from the fact that the plaintiffs have remained in possession of the premises ever since.

From the feeling which has manifestly existed between the parties during all that time Ave are led to the conclusion that the defendants felt that the plaintiffs had rights in the premises which they could not take from them or they would not have permitted them to remain unmolested for the last six years.

Several Avitnesses testify that the defendant, Christian Schultz, has stated to them that he had given this property to Elizabeth, at the same time stating that he had given that property Avhich he has since deeded to his son John to him, and that Avhich he has deeded to his daughter Emma to her, and that Avhich he has since deeded to his son Herman to him.

One witness, Mrs. Bartlett, Avhose appearance is calculated to impress us that she is telling the truth, and who apparently has no interest in telling anything but the truth, says that Mrs. Schultz told her that Elizabeth was to have these twenty-five acres.

It is true that the several children of the defendants, other than Elizabeth, testify that nothiug was said to them about these gifts, and that the first they knew that they were severally to receive the parcels of land Avhich were deeded to them respectively, was when they received their deeds in 1898. Still the entire conduct of the parties goes to show that there must have been some understanding that they were to receive the parcels which have since been deeded to them.

Emma and her husband expended some $1,400 in building a house upon the premises, of Avhich Emma now holds a deed, and which they have occupied for a good many years. John and Herman have each had possession and occupancy for a considerable number of years of the parcels to which they now hold title; and Ave think it clear that the general plan of these defendants Avas to divide up their real estate in the manner claimed by the plaintiffs, and that they must have made some promise to each of the children that such division would be made. That being so, they would naturally have made the promise to Elizabeth which she claims. If they did, the conduct of Elizabeth and her husband in expending money in the erection of buildings, putting-out fruit trees, and other improvements, is naturally accounted for, and it is not easily accounted for on any other theory.

In 1897, some four years after the plaintiff, Frederick Schroeder, rendered the statement to his father-in-law, he gave a note to his father-in-law for $350, due October 15, 1897, which note is still outstanding. On the last-named date the defendants executed a mortgage to their son Herman for $500 which still rests upon the premises, and the debt incurred by such mortgage is still unpaid.

The evidence shows that Christian Schultz expended some money in the construction of the house and other buildings erected upon this twenty-five acres; the exact amount we can not determine. At the time of these expenditures, the feeling between the parties was that which would naturally be expected between those sustaining the relation to each other which these plaintiffs and defendants do sustain, and, without doubt, work was done and money expended by Schultz of which no accurate account was kept.

We have reached the conclusion that the most equitable disposition of this ease which we can make and conform to the facts as we understand them, is to require that the defendants shall convey to the plaintiff, Mrs. Elizabeth Schroeder, within ten days from the entering of the decree in.this case, the twenty-five acres of land, subject to the mortgage of $500 held thereon by Herman Schultz, thus putting the payment of this mortgage debt, interest and all, upon the plaintiffs and cancelling the note of $350 held by Christian Schultz against the plaintiffs. And a decree will be entered accordingly.


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    AS TO TIME FOR FILING MOTION FOR A NEW TRIAL.
    Circuit Court of Cuyahoga County.
    A. W. Moskowitz v. Silas Auerbach.
    Decided, June 10, 1901.

      New Trial — Date for'Filing Motion.

    The time within which a motion for a new trial may be filed, dates from the rendition of the verdict and not from the overruling of a motion for judgment upon special findings of the jury.

      Hile & Horner, for plaintiff in error.

      Ilenclerson <£' Quail, contra.
    Caldwell, J.; TIale, J., and Marvin, J., concur.
   This case is here on a petition in error to reverse a judgment of the court of common pleas. Special findings were submitted to the jury at the request of counsel, and answers -were returned to the special findings, and a general verdict. Thereupon counsel for plaintiff filed a motion for judgment on-the. special findr ings, notwithstanding the general verdict against him. The court overruled his motion and, in overruling the motion, delivered an opinion which has been presented to the court and which has been published in one of the legal journals .of. the state. The complaint made, is that the court erred in overruling that motion.

AA^e fully concur in the judgment of the court and in the opinion pronounced as printed and as presented to us.

The only other error complained of is that the court refused to permit the plaintiff .to file a motion for a new trial. The plaintiff had a motion filed in time, which he thereafter withdrew, and after his motion for judgment on the pleadings was disposed of, he applied to the court to file his motion for a new trial. The time prescribed by statute for filing a motion for a new trial had then long passed and the court for that reason refused leave to file it. It is claimed this was error, and that the time for filing a mol ion for a new trial does not apply where a motion for judgment on special findings is interposed; that where that is done, the motion for a new trial should not be filed until that motion is disposed of. We do not think this point is well taken. ■

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


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    AS TO VALIDITY OF CERTIFICATE OF ACKNOWLEDGMENT TO MORTGAGE.
    Circuit Court of Cuyahoga County.
    Atlantic Refining Company v. Carrie S. Wagner et al.
    Decided, November 22, 1901.

      Evidence — Acknowledgments—Certificate of Acknowledgment Entitled to Great Weight — Misdescription óf Officer Taking Acknowledgment Not Material. ' '

    1. The certificate of an officer that he has taken the acknowledgment of a grantor is entitled to great weight; and the burden of proof cast upon those disputing the acknowledgment is not sustained by the evidence of the grantor and her husband that she did not acknowledge the instrument.
    2. The fact that a certificate of acknowledgment describes the officer before whom an acknowledgment was taken as “a notary public” where as a matter of fact he was a justice of the peace and signed as such, does not invalidate the acknowledgment.

      Carpenter & Young, for plaintiff in error.

      Chas. B. Lang, contra.
    Hull, J. (sitting in place of Marvin, J.) ; Caldwell, J., and Hale, J., concur.
   This ease involves the validity of a mortgage upon which the plaintiff brought its action in foreclosure.

Carrie S. Wagner makes the defense that she did not appear before the justice of the peace whose certificate‘of. acknowledgment is’attached to the mortgage, and claims that therefore the fnortgage'is invalid. The mortgage was for $4,000 and was admittedly signed by Carrie S. Wagner and her husband, anci'ack mittedly acknowledged by the husband before the justice of the peace, in due form.

The property that the mortgage covered, belonged to Airs. Wagner, was her property.

The question in the case is, whether the evidence offered in support of the defendant’s claim is sufficient, under the rule in this state, to overcome the certificate of the justice of the peace and his testimony.

Another mortgagee is a party to the case, a Mrs. Bayer, whose mortgage in point of time is prior to the mortgage of the refining company, but was not left for record until after the mortgage given to the refining company; so that the mortgage of Mrs. Bayer is inferior to the mortgage of the refining company if the latter mortgage was properly executed and acknowledged.

The testimony in the case, stated very briefly, is about this: the defendant Mrs. Wagner and the other members of the family testified to her signature and that of her husband being attached to the mortgage at their residence; the acknowledgment purports to be taken before justice of the peace Griswold, who had an office down town. Mrs. Wagner claims she never appeared before the justice of the peace. In this she is supported by the testimony of her husband and son; the husband testifying they went before the justice of the peace and he attached the certificate of acknowledgment without Mrs. Wagner being present, and Mrs. Wagner testifies she' did not go before the justice of the peace.

The certificate of ihe justice is in due and proper form, and he testifies that a woman did appear with Mr. Wagner before him, that he believed to be Mrs. Wagner, that her signature had been signed before she appeared and that he took the acknowledgment in due form.

We hold that as the defendant was attacking the mortgage, the testimony as offered before us was not sufficient to bring it within the rule laid down by the Supreme Court in the case of Ford v. Osborne, 45 O. S., page 1. The Supreme Court substantially hold there that the testimony of the husband and wife ¡dope would not be sufficient to overcome the certificate of the notary; that is practically the holding of that court, as there was no other testimony offered.

In this ease, we have not only the certificate of the notary, but his testimony that a woman who appeared to be Mrs. Wagner came before him and made the acknowledgment.

The Supreme Court in the case to which I have referred, says there must be more than a preponderance of the evidence and that it must be clear and convincing.

The authorities everywhere are, that the certificate of the notary alone is entitled to great weight as evidence, it being the official act of the justice of the peace or notary; that the security of titles requires that such certificate shall not be lightly set aside.

If this were an ordinary question of fact, not controlled by such a rule as has been laid down by the Supreme Court, we might hold that the preponderance of the evidence was in favor of invalidating this mortgage, but we do not think the parties have come up to the rule laid down by the court.

Just a word in regard to the form of the certificate objected to; it reads: “Before me, a notary public,” etc., and is signed “E. B. Griswold, Justice of the Peace.”

We hold that this certificate in form is good; that the language “notary public” in the body of the certificate is merely descriptive and would not affect the validity. The certificate was prepared by the mortgagee and given to Mr. Griswold, and the words “notary public” were written in and, as they were not able to find a notary public at that time, he signed his name and title thereto.

The decree will be in favor of the plaintiff, and with this found, the parties agree on the priority of the liens.


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    SERVICE ON AN OHIO CORPORATION.
    Circuit .Court of Cuyahoga County.
    Akron Electric Manufacturing Company v. H. H. Hammond.
    Decided, January 20, 1902.

      Corporations — Process—Service Outside County Can Rot Toe Made upon Secretary.

    Service of Summons can not be made upon an Ohio corporation in a county, other than that in which its principal place of business is located, by serving the secretary of the corporation.

      Harold Remington, for plaintiff in error.

      O. G. Pinney, contra.
    Hale, J.; Caldwell, J., and Marvin, J., concur.
   The plaintiff is an Ohio corporation having its principal place of business in the city of Akron. The defendant is a resident of Cleveland.

The defendant commenced an action in the Court of Common Pleas of Cuyahoga County against the plaintiff and caused summons to be served upon the secretary of the plaintiff. Judgment was taken by default. After judgment, the plaintiff appearing for that purpose only, filed a motion to vacate the judgment and set aside the service of summons on the claim that the court acquired no jurisdiction of the action. This motion was overruled by the court; which action of the court is assigned as error. .

The determination of the questions submitted depends upon the proper construction to be given to the statutes bearing upon the subject.

The service of a summons upon a corporation of the class to which the plaintiff belongs is regulated by Section 5041, Revised Statutes. Three modes are provided by that section for the service of summons upon a corporation, dependant upon the circumstances existing at the time of the service: 1st. Upon the president, or president or chairman of the board of directors or trustees, or other chief officer. 2d. If the service can not be made as first designated, then upon the cashier, treasurer, secretary, clerk, or managing agent of the corporation. 3d. If service can not be made in either the first or second modes, then by leaving a copy at the usual place of business of the corporation.

Formerly actions against corporations of this class could be brought only in the county in which such corporation was situated or had its principal office or place of business, or in which such corporation had an office or agent.

April 16th, 1900, the Legislature amended this section by adding thereto the following:

"Or in any county in which a summons may be served upon the president, chairman or president of the board of directors, chairman or president of the board of trustees, or other chief officer. ’ ’

It plainly was not the intention of the Legislature to extend-the jurisdiction of the court outside of the county in which the corporation had its home, to cases in which any kind of service could be made upon the corporation, but only to those cases in which service could be made in the particular manner first provided in Section 5041.

Service in this case was not made in the manner thus provided.

The secretary, as is clearly indicated by the statute, is not "other chief officer of the corporation.” If Section 5023 is to be construed entirely independent of Section 5041, the construe! ion claimed by the defendant could not then prevail. The meaning of the term, "other general officer,” is modified and limited by the particular designation of the officer upon whom service can be made, in the preceding clause. The general words are' limited by the particular description preceding them and can only mean other general officers of the class specifically designated. This would exclude the secretary; nor would the result be different if the secretary did, in fact, perform the duties which the testimony, submitted on the hearing of the motion, tends to show he did perform.

The judgment of the court of common pleas in overruling said motion is reversed, and proceeding to render such judgment as should have been rendered by that court, the judgment of the court of common pleas is vacated, and the service of summons set aside and held for naught.


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    DETERMINATION AS TO WHICH OF TWO INNOCENT PARTIES MUST LOSE.
    Circuit Court of Cuyahoga County.
    Mary Kempinski v. August Dyczkowski.
    Decided, November 22, 1902.

      Judgments — When Assignee of a Judgment May Not Enforce it.

    1. Where one of two innocent parties must suffer loss, it is put upon the one who by his act or failure to act has enabled a third party to create the situation which must result in loss to one of them.
    2. Where the assignee of a judgment fails to give notice of such assignment, and does not record the assignment until the judgment creditor is in the process of collecting his judgment by having it set off against the claim of the -judgment debtor in a suit in another county, such assignee can not collect the judgment from the judgment debtor.

      Thomas Robinson, for plaintiff.

      Henry Hu Laivrence, contra.
    Caldwell, J.; Hale, J., and Hull, J. (sitting in place of Marvin, J.), concur.
   This case comes into this court on appeal. I will not undertake to state the facts at all in the case any further than to say this: That the husband of Mary Kempinski got a judgment against the defendant for $299 and after obtaining that judgment in this county he went to Portage county to collect it out of certain lands that the defendant owned in that county, and the defendant made a set-off of" the claim he had against him amounting' to about $1,200 so that the judgment was the difference between the two claims, making it equivalent to a collection of the judgment of the husband of the plaintiff. Now, afterwards, she brings this action on the same claim, claiming that the judgment her husband had obtained for $299, had been assigned to her before he undertook the collection of it and she put the assignment on record after the collection was in process, and she claims that notwithstanding he collected it and got it in full by way of cancelling the larger claim in part against him, she is now entitled to collect it again. The question doesn’t turn upon how far an assignment of a judgment when placed upon the docket where the judgment appears, is notice to the parties. It is held in 48 Pa. St., 70, that it is not notice — it is not direct notice, nor is it constructive notice. Be that as it may, this case seems to present this plain proposition of law or equity that is often acted upon: where one of two parties must suffer by reason of the act of a third, if one is instrumental in bringing about or setting in operation that act of the third which makes one of the two innocent persons suffer, he is the one on whom the responsibility must fall.

The husband of Mlary Kempinski had it in his power to collect this judgment, even after he assigned it to her, from the fact that she gave no notice to the defendant, and, in fact, if the defendant had paid it to him while she held the assignment, without any notice to him, she certainly could not have recovered. That is well settled law. But while he was in process of collecting it, she put her assignment on the docket where the judgment appeared.

Even admitting that that is a sort of constructive notice, it was during the trial and certainly after a time when the defendant had prepared to meet the plaintiff’s claim, and we think that he was under no obligation to go continually during the trial of his case, to another county, in another court to search a record to see if an assignment had been made, had been put on after the action had commenced in which he appeared. This being true, the fault of the defendant, if any fault at all on his part, is very slight, while that of Mary Kempinski, the plaintiff, in not giving notice of her assignment, is one that under the facts of this case ought to defeat her; she is the one that by not giving any notice of the assignment to her, -made it possible for her husband to undertake to do just what he did in this case. That being true, if there are two innocent parties here, she is the one that ought to suffer. We hold that she can not recover in this case.