author: HULL, J. PARKER, J.,

text:
    HEALTH — CRIMINAL LAW.
    [Lucas (6th) Circuit Court,
    March 1, 1902.]
    Parker, Hull and Haynes, JJ.

      Vernon M. Williams v. State of Ohio.
    1. Affidavit Charging Sale of Oleomargarine — Evidence of Sale by Employe NOT VARIANCE.
    Where an affidavit charges one with unlawfully selling oleomargarine and the evidence shows that the sale was made oy an employe, who was authorized to sell the article, this is not a variance. It was no,t necessary to allege that the sale was made by an agent or employe. In misdemeanor all are principals.
    2. Evidence of Instructions to Clerks as to Salé of Oleomargarine not Admissible in Action Against Proprietor.
    In a prosecution for selling oleomargarine, as butter,, in violation of Sec. 4200-17 Rev. Stat., where the oleomargarine was sold by a clerk in the store of the accused, who was engaged in the business of selling oleomargarine to the public, with other merchandise and who authorized its sale by his clerks, in the ordinary course of business, it is no defense that he had instructed such clerk and all.of his clerks in the store, not to sell oleomargarine, except under its true name and marked and labeled as required by said act; and testimony to prove such instructions was properly excluded.
    3. Duty of Proprietor to see Compliance With Law.
    One who engages in the business of selling oleomargarine to the public and permits and authorizes its sale by his clerks or employes, is bound to sec that the law regulating its sale is complied with, and if it is violated by such employes or clerks, the employer is liable under the statute.
    ERROR to common pleas court of Lucas county.
    Chittenden & Chittenden, for plaintiff in error.
    Walter Brown, for defendant in error.

       Affirmed by the Supreme Court without report, January 12, 1904, 49 Bull. 32; 69 Ohio St. 570.

   HULL, J.

The plaintiff in error was prosecuted under Sec. 4200-17 Rev. Stat., which is one of the sections providing against the sale of adulterated foods and drugs. This section prohibits the sale of oleomargarine except under its true name and when properly marked and stamped. The defendant was tried before a justice of the peace, oi city judge of the citv of Toledo, as he is called, and a jury, and found guilty. A motion for a new trial was filed and overruled, and a fine of $50 and costs was imposed upon the plaintiff in error. It was to reverse this judgment that proceedings in error were brought in the court of common pleas.and in this court. The judgment of the justice of the peace was affirmed by the court of common pleas; and it is sought here to reverse the, judgment of both courts below.

After providing in Sec. 4200-13 Rev. Stat. against manufacturing articles in imitation of butter and cheese, and in Sec. 4200-15 Rev. Stat. for a penalty, Sec. 4200-16 Rev. Stat. provides that:

“No person shall manufacture, offer or expose for sale, sell or deliver, or have in his possession with intent to sell or deliver, any oleomargarine which contains any methly [methy] orange, butter yellow, annatto, analine dye or any other coloring matter.”

Section 4200-17 Rev. Stat., under which this plaintiff in error was prosecuted, provides as follows:

“Every person who shall offer or expose for sale, sell or deliver, or have in his possession with intent to sell or deliver, any oleomargarine, shall keep a white placard not less in size than ten by fourteen inches, in a conspicuous place where the same may be easily seen and read, in the store, room, stand, booth, vehicle or place where such substance is offered or exposed for sale, on which placard shall be printed in black letters, not less in size than one and one-half inches square, the words 'oleomargarine sold here,’ and said placard shall not contain any other words than the ones described; and no person shall sell or deliver any oleomargarine unless it be done under its true name and each package •has on the upper side thereof a label on which is printed in letters not less than five-eighths of an inch square the word 'oleomargarine,’ and in letters not less than one-eighth of an inch square, the name and per cent, of each ingredient therein.”

The plaintiff in error was charged with a violation of the provision contained in the latter part of this section, which provides that “no person shall sell or deliver any oleómargarine unless it be done under its true name and each package has on the upper side thereof a label on which is printed,” etc. The affidavit charged the defendant below with selling oleomargarine personally; it did not charge that he did it through a clerk or agent, but simply charged that Williams:

“ * * * did unlawfully sell to one Myra Heisey, also of said county of Lucas, a quantity of oleomargarine, the same being then and there a substance not pure butter, containing less than eighty (80) percent. of butter fats, to wit, eight and three-hundredths (8.03) per cent, butter fats, which said substance was then and there made as a substitute for, in imitation of, and to be used as butter; that then and there said oleomargarine was not sold under its true name, but was then and there sold as, for, under and by the name of butter; contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Ohio,” etc.

The evidence in the case showed that if a sale was made, it was made by a person in the employ of the plaintiff in error, and not by him personally; and it is'claimed that.this constitutes a variance between the evidence and the affidavit.

The offense provided for in this section !s a misdemeanor, not a felony, and all parties to the commission of the offense are principals. In the case of Anderson v. State, 22 Ohio St. 305 (a liquor case) the indictment charged Anderson, the defendant below, with the sale of liquor personally; the evidence showed it was sold through an agent. On page 308 of the opinion the court say:

“Strictly speaking,' the legal relation of principal and agent does not exist in regard to the commission of criminal offenses. All who participate in the commission of such offense are either principals or accessories. ' In offenses less than felony all are principals.”

In the ease of State v. Basserman, 54 Conn. 88 [6 Atl. Rep. 185], referring to a liquor statute, the court say:

“Under that statute a delivery by an agent is in all respects the same as a delivery by the vendor himself.” ,

This Sec. 4200-11' Rev. Stat. makes ho express provision for the sale through an agent or servant, as is done in some statutes; but simply provides generally that “no person shall sell or deliver,” etc. If the oleomargarine was sold by a cler-k or employe of Mr. Williams, with his authority, the sale then would be made by him, the same as though he had made it personally, and, in our judgment, the affidavit is sufficient, and there was no substantial variance. It was not necessary to allege that the sale was made through an agent. That complaint of the plaintiff in error, as we view it, is not well taken. There is a common pleas decision in this state that holds otherwise; but there are no authorities cited in that decision, and the judge finally found that the evidence was not sufficient to warrant conviction in any event.

The chief question in this case is whether, if the oleomargarine was sold by the authority of the defendant below, through a clerk, it would be a defense for him to show that he had given directions and instructions to this clerk, and to his clerks generally, not to sell oleomargarine except under its true name, and unless stamped and marked as required by law. ,

The defendant below offered to testify that he had given such directions ; upon objection being made by the state, he was not permitted to do so, but the objection was sustained and the testimony excluded; and the case as finally submitted to the jury, under the charge of the court excluded from their consideration anything of this kind. It is urged by'counsel for the plaintiff in error that there can'be no criminal intent, no conviction of a criminal offense of any kind, where the defendant himself has not been a party to the offense, where he has not knowingly committed any offense personally and, in this case it is claimed, and it was offered to show that he had given instructions to his employes not to sell the oleomargarine, except according to the provisions of this statute.

On the other hand, it is urged by the state that under a statute of this kind and similar statutes providing against the sale of adulterated foods and drugs, one who authorizes another to sell is bound to know that the law is being complied with by his agent and employe, and that it would have been no defense for Mr. Williams to show that he had given instructions — private instructions to his clerk not to sell oleomargarine, except in accordance with the law — that if, in fact, it was sold from his store, sold there by his authority, lie would be guilty of a violation of this statute, if sold contrary to its provisions by the clerk, notwithstanding his instructions.

Questions similar to this have arisen more often perhaps in prosecutions under statutes providing against the sale of intoxicating liquors, than in any other class of cases; but the Supreme Court of this state has had before it some cases arising under the food laws, where they have laid down certain principles, which we think control this case, although no case exactly like this has been before the Supreme Court.

In the case of State v. Kelly, 54 Ohio St. 166 [43 N. E. Rep. 163], the defendant was .charged with selling adulterated food; he sought to show in his defense that he had no knowledge that the food was adulterated, but believed it to be pure, and sold it in good faith; and in the trial before the justice of the peace, this instruction was requested:

“While it is not necessary to charge knowledge in the affidavit, want of knowledge and absence of intent is a valid defense. You will carefully weigh the evidence of all the witnesses, and if the evidence discloses that the defendant bought the molasses, he is here charged with selling, for pure New Orleans molasses and honestly believed it to bfe such, that still believing it to be pure, he sold it as such without intent to deceive the purchaser thereof as to its true character, you must acquit the prisoner.”

This instruction was refused and upon Kelly’s- conviction the case was taken on error to the common pleas court and the judgment reversed there and the ease went to the Supreme Court on exception to the reversal. The court say in the syllabus of the case:

“1. An affidavit to charge a violation of the act of March 20, 1884 (Sec. 8805 Giauque’s Rev. Stat.), ‘to provide against the adulteration of food and drugs,’ need not charge that an adulterated article of food is sold to be used as human food.
"2. In a prosecution under said act, it is net a defense that the accused is ignorant of the adulteration of the article which he sells or offers for sale.'-’

Judge Shauck, in delivering the opinion of the court said, page 17'i:

“Section 1 of the act of Ddarch 20, 1884 (Sec. 8805 Giauque’s Rev. St.at.), provides 'that no person shall within this state manufacture for sale, offer for sale, or sell any drug or article of food which is adulterated, within the meaning of this act/ Other provisions of the statute are devoted to definition of the terms used in Sec. 1, and to prescribing penalties for the violation of the act. It is not’doubted that molasses to which glucose has been added is an article of adulterated food within the meaning of this statute.
“The act does not in terms require, to constitute an offense against its provisions, that the adulterated articles’ of food shall be sold to be used by the purchaser as human food. Nor does it in terms require, as an element of the offense, knowledge of the fact that the article is adulterated, or provide that a want of such knowledge, shall constitute a defense. Both conclusions stated, in the decision of the court of common pleas, are, therefore, wrong unless there are justifiable inferences from the purpose and indicated policy of the act.
“The act is not a provision for the punishment of those who sell adulterated food or drugs, because of any supposed turpitude prompting such sales or indicated by them. Its purpose is Indicated by its title. It is 'an act to provide against the adulteration of food and drugs.’ It is a plan devised by the general assembly to protect the public against the hurtful consequences off the sales of adultérated food and drugs, those consequences being in no degree increased by the vendor’s knowledge, or diminished by his ignorance, of the adulteration of the articles -which he offers for sale. The provisions of the act are appropriate to the purpose indicated by its title. It would have been inconsistent with that purpose to provide for the trial of such immaterial issues as the object of the vendor in making- a sale or of the extent of his knowledge touching the quality of the article sold. Those who produce the adulterated articles whose sale is forbidden may live without the state. Purpose and knowledge, except when they are indicated by the character of the forbidden act, are, in most cases, insusceptible of proof. If this statute had imposed upon the state the burden of proving the purpose of the vendor in selling an article of food or his knowledge of its adulteration, it would thereby have defeated its declared purpose. Since it is the duty of courts to so construe doubtful statutes as to give effect to the purpose of the legislature, they cannot in casé of a statute whose provisions are unambiguous and whose validity is clear, defeat its purpose by construction.
“The correct view of statutes of this general nature is stated by the Supreme Court of Massachusetts in Commonwealth v. Murphy, 42 N. E. Rep. 504 [165 Mass. 66] : 'Considering the nature of the offense, the purpose to be accomplished, the practical methods available for the enforcement of the law, and such other matters as throw light upon the meaning of the language, the question in interpreting a criminal statute is whether the intention of the legislature was to make knowledge of the facts an essential element of the offense, or to put upon everyone the burden of finding out whether his contemplated act is prohibited, and of refraining from it, if it is.’

In the last paragraph of the opinion Judge Shauck says, page 180:

“In the enactment of this statute it was the evident purpose of the general assembly to protect the public against the harmful consequences of the sales of adulterated food and drugs, and, to the end that its purpose might not be defeated, to require the seller at his peril to know that the article which he offers for sale is not adulterated, or to dem'and of those from whom he purchases indemnity against the penalties that may be imposed upon him because of their concealment of the adulteration of the articles.”

The doctrine of this case, at first blush, might seem to be, perhaps, in conflict with the general principles of criminal law, that one could be convicted of an offense where he had no criminal intent or purpose and no knowledge at the time that he was violating a law. But the general rule seems to be, as laid down1 by the Supreme Court, that one who sells food is bound to know that he is not violating statutes for the protection of the public against the adulterating of foods, and as the court say in the concluding paragraph, it was the purpose of the general assembly to require the seller at his peril to know that the article which he offers for sale is not adulterated.

This doctrine of our Supreme Court was by no means new and it has been so held in many states. I will call attention to a few of the cases. In the ease of Commonwealth v. Savery, 145 Mass. 212 [13 N. E. Rep. 611], it is said:

“It is no defense to a complaint for keeping intoxicating liquors with intent unlawfully to sell the same, that the liquors were upon the defendant’s premises by mistake, and he did not know they were intoxicating, if he intended to sell them, and they were in fact intoxicating.”

In this case the defendant was a liquor seller; he was not permitted, under .the statute of Massachusetts, to sell beer containing more than three per cent, of alcohol. It was claimed that he sold by mistake' beer containing more than three per cent, of alcohol, without knowledge that it contained more alcohol than the statute permitted; but the supreme court of Massachusetts held that that was no defense; he was bound to know it, “at his peril."

The case of Commonwealth v. Wentworth, 118 Mass. 441, is a case wdiere a man was prosecuted for keeping for sale naphtha under a false name. His defense was that he did not know that the article which he had was naphtha. He supposed that it had none of the dangerous qualities of naphtha, but the court said in that case:

“We are of opinion that the court correctly ruled, that the question whether the defendant had knowledge that the article kept by him was naphtha was immaterial. The statute does not make a guilty knowledge one of the ingredients of the offense. It is like the statutes against the sale of intoxicating liquors, or adulterated milk, and many other police regulations; it prohibits the acts of selling or keeping for sale naphtha ■under any name, not because of their moral turpitude, or the criminal intent with which they are committed, but because they are dangerous to the public.”

The ease of Commonwealth v. Farren, 91 Mass. (9 Allen) 489, was a. milk case. The supreme court of Massachusetts in that case say:

“A person may be convicted of selling adulterated milk, under Stat. 1864, Chap. 122, Sec. 4, although he did not know it to be adulterated, and an averment in the indictment that he had such knowledge may be rejected as surplusage.”

State v. Hartfiel, 24 Wis. 60, was an intoxicating liquor case, and is perhaps in conflict with some of the former decisions of our own Supreme Court in cases of selling intoxicating liquors t’o a minor. The supreme court of Wisconsin holds: . ,

“The sale of intoxicating liquors to a minor is an offense under Sec. 1, Chap. 128, laws of 1861, though the vendor does not know that the purchaser is a minor.”

The evidence in the ease shows that the defendant inquired of the purchaser* his age, and it was represented that the' person was of full age; he was in fact, six feet and one inch in height, and defendant believed in good faith that he was of age. But the supreme court of Wisconsin held that was no defense; that he was bound to know.

It is urged that to hold here that Mr. Williams might be convicted although he had given directions to his clerk not to sell, except in accordance with the law, would be contrary to the former decisions of the Supreme Court of this state, especially in liquor eases, and particularly the case of Anderson v. State, supra, where it was held by the Supreme Court that that constituted a defense in case of selling liquor. The Supreme Court however in the case of State v. Kelly, supra, seem to have had no difficulty in discriminating between the rules that had been laid down in liquor cases and the rules that ought to be laid down in the case of selling adulterated food. There is this to be said, in liquor cases the law provides that the penalty for a violation of the statutes may be imprisonment, as well as a fine, and a violation of the food statute is punishable by a fine only. It provides that whoever violates any one of the provisions of this statute shall pay a fine of $50. Whether that makes any difference in the rule, it is not necessary to determine. The Supreme Court however in State v. Kelly, supra, hold clearly and positively that lack of knowledge is no defense in a prosecution under this statute for selling adulterated food; and that was as much in conflict with the former holdings of the Supreme Court upon that question in liquor cases, if there is any conflict, as it would be to hold here that a vendor of oleomargarine, who sold it through his clerk, contrary to his instructions, would be liable under this statute, if the clerk did not comply with the law. The Supreme Court has held in several eases of selling intoxicating liquor that want of knowledge is a defense, tracing the doctrine back to the old case of Birney v. State, 8 Ohio 230, where a person was prosecuted for concealing a slave, and his defense was that he did not know that the mulatto was a slave.

In the case of Miller v. State, 3 Ohio St. 475, the Supreme Court held in a liquor case, as stated in the syllabus, as follows:

“To convict for a violation of Sec. 2, it is necessary to aver in the information, and prove on the trial, that the seller knew the buyer to be a minor; and to convict for a violation of Sec. 3, it is necessary to aver and prove, in like manner, that the seller knew the buyer to be intoxicated, or in the habit of getting intoxicated.”

The case of Crabtree v. State, 30 Ohio St. 382, was another case of selling to a person in the habit of getting intoxicated, where it was held that want of knowledge was a defense. This is in the syllabus:

“In prosecutions under Sec. 3 of the 'act to provide against the evils resulting from the sale of intoxicating liquors in the state of Ohio,’ defendant may show, to rebut proof of knowledge, by his own and other persons’ testimony, that shortly prior to the time of the alleged unlawful sale, he made inquiiy of persons well acquainted with the person charged in the indictment as a person in the habit of getting intoxicated, whether he was a person in the habit of getting intoxicated; and also show what information he obtained from such persons. His good faith and due care in seeking and obtaining such information, as well as the proper effect thereof under all the circumstances, are to be left with the jury.”

And on page 387 of the opinion, the court quotes from Bishop as follows:

“ 'And when this good faith and this due care do exist, and there is no fault or carelessness of any kind, and what is. done is such as would be proper and just were the fact what it is thus honestly believed to lie, there is no principle known to oar criminal jurisprudence by which this morally innocent person can be condemned because of the existence of a fact which he did not know' and could not ascertain. On the other hand, to condemn him would be to violate those principles which constitute the very foundation of our criminal jurisprudence. Honest error of a fact is as universal an excuse for what would be otherwise a criminal act-as insanity.' ”

And in the case of Farrell v. State, 32 Ohio St. 456 [30 Am. Rep. 614], a liquor case, a man was charged with selling intoxicating liquor, and his defense was that he did not know it was intoxicating liquor: that he bought it under the name of bitters, supposing it was a harmless compound, and that it contained no alcohol, it was so represented and sold to him, he kept it honestly and sold it honestly believing it to be nonintoxicating, just as in State v. Kelly, supra, the party sold the food, believing it to be pure; and the Supreme Court held in that case that that would be a good defense; the second paragraph of the syllabus is as follows:

“A person indicted for selling intoxicating liquors, in violation of the provisions of Sec. 1 of the act to provide against the evil’s resulting from the sale of intoxicating liquors in the state of Ohio, may, on the trial, show that at the time he bought the article alleged in the indictment to be intoxicating. liquor, it was represented to him to be free from alcoholic 'properties — that he bought it with the understanding and believing that it was not intoxicating liquor, and sold it with such understanding and belief.”

The question is discussed at some length, in the opinion. The court say, page 459:

“The accused interposed two defenses: First, that the bitters sold was free ffom alcoholic properties; and, second, that if the bitters did, in fact, contain alcohol, and was intoxicating by reason thereof, he wuis wholly ignorant of such fact; that he bought the bitters upon information and in the belief that the bitters was free from alcoholic properties, and sold it free from all intention of violating the statute.”

And further on page 460:

“We are unable to see why the proposed testimony was not competent, The accused’s intention at the tinie of the sale was involved in the issue. It was competent to show that, from the circumstances of the case, he was free from ■ culpable purpose, and one of the circumstances tending to show freedom from guilty intention in the sale was the fact, if fact it proved to be, that he had bought the bitters under the information and belief that it was an article free from alcoholic properties; that he sold it, honestly believing, from information obtained at the time of the purchase, that it was not an intoxicating liquor. We think the testimony would have tended to show good faith and want of guilty intention on the part of the accused.”

I have called attention to these former decisions of the Supreme Court for the purpose of showing that when, they came to construe and interpret this food law in State v. Kelly, supra, they' did not apply those rules, nor any such principles as are laid down in the last case from which I have read. But they held that under the statute which prohibits the sale of adulterated food or drugs, the seller of such articles sold them at his peril; and that the duty was upon him to ascertain whether they were pure or not; although in Farrell v. State, supra, the court held that it constituted a good defense in a liquor case for the vendor to show that he did not know that the article he was selling was intoxicating. The Supreme Court in State v. Kelly, supra, do not follow the doctrine laid down there. The liquor case, Anderson v. State, supra, it is urged should control this .case. The syllabus of (that case is as follows:

“1. Where, in a prosecution for unlawfully selling intoxicating liquor, it appears by the evidence for the state, that the sale was made by the agent of the defendant in charge of the establishment where the liquor was sold, it is competent for the defendant to rebut the presumption of prima facie agency, which the evidence makes against him, by showing that thé sale was, in fact, made without his authority and against his directions.
“&. But the directions to the agent, forbidding the sale, must be in good faith; for, however notorious or formal they may be, they cani have no effect, if they are merely colorable. The fact of agency is to be determined by the real understanding between the principal and agent.”

And in the opinion on page 308, the court say:

“The rule as.to the conclusive effect of the prima facie, or apparent authority of an agent, ought not to be applied to the enforcement of a criminal statute where such statute is fairly susceptible of a different construction. The accused, in such case, has the right to rebut the presumption of prima facie agency, which the evidence makes against him, by showing, if he can, that the criminal act was, in fact, committed without his authority and against his instructions.”

To hold that Williams was liable for what his clerk did contrary to instructions would appear perhaps to be in conflict with this decision; but it seems to us that it would be no more in conflict with the holding in that case than the decision of the Supreme Court in State v. Kelly, supra, was with some of the former decisions in liquor cases. But the Supreme Court decided that case without citing or attempting to reconcile the decision with the former decisions of the court in the liquor cases. They there laid down the broad doctrine that these food statutes are'for the protection of the public, and that it is wholly immaterial to the public whether the seller had knowledge that the food was adulterated or not. The statute does not provide against one wilfully and knowingly selling adulterated food, but it provides absolutely against its sale, and the Supreme Court say that the question of knowledge is immaterial, and intimate that to hold otherwise would interfere very materially with the practical enforcement of the statute and say that a court ought, where it can do so, to construe and interpret a statute in such a way that it may be enforced in a manner to carry out the purpose and object of the legislature.

I will refer to another case which tends to support the contention of the plaintiff in error — Barnes v. State, 19 Conn. 398 — in which the court say:

‘‘Where it appeared in such prosecution, that the sale complained of was made by the clerks of the defendant; and he offered evidence to show, that he had given such clerks specific directions to sell no liquors to common drunkards, it was held, that such evidence was admissible.”

I will say that was also an intoxicating liquor case. It was decided by a divided court, two judges of the five, Chief Justice Church and Judge Waite, dissenting from that proposition of the syllabus.

The record in the case at bar shows that Mrs. Heisey, the purchaser of this article, went into Mr. Williams’ store, called “the Adams Street Butter Market,” one evening between nine and ten o’clock; she found a young man behind the counter, dressed as a clerk, with a large apron on; she called for a pound of butter; he went back into the room to a large refrigerator, or some such apartment, and brought out a roll of something that looked like butter. It was a trifle over a pound, very little, and he charged her thirty cents for it. The price of oleomargarine at that time was but fifteen cents a pound. It was not stamped nor marked, but was sold to her as butter. The evidence in the case further shows that the oleomargarine was colored to look like butter, in violation of another section of the food laws. This young man was selling goods in the ordinary way. The next morning she undertook to use some of the commodity she had purchased and discovered it was not butter, but oleomargarine. She thereupon complained to the food authorities. The deputy commissioner of the dairy and food department went to the store a few days later, and this same young man was found behind the counter selling goods. The analysis of the article showed that it contained eight per cent, of butter fats, instead of eighty per cent., as required by law.

The defendant testified that this young man had no authority to sell anything. This question, with the other questions of fact, was left to the jury; and there was ample evidence to warrant the jury in finding that he did have authority to sell. The defendant admitted upon the witness stand that he did not reprimand the young man for selling Mrs. Heiscy oleomargarine upon the 'occasion in question; he said that he had a cashier and perhaps one more clerk besides this young man, and offered to show that he had given them all instructions not to sell oleomargarine except in accordance with the statute. Mr. Williams’ testimony sheds .some light on the way this business is earned on, or was in this particular case, at least. According" to his testimony, he purchased this oleomargarine from another person under a contract that the dealer from whom he purchased it would pay all fines and costs that might be imposed upon Mr. Williams, and employ counsel for him m case of trouble, and defend any prosecutions that were commenced against him. While that perhaps does not shed very much light on the question involved here, it indicates that it was contemplated by the parties that there would probably be criminal prosecutions. The evidence shows, as I have suggested, that the oleomargarine was colored, so as to look like butter.

The question is, whether, if it were shown that Williams had given private instructions to his clerks not to sell oleomargarine, except according to law, that would constitute a defense. A majority of the court are of the opinion that it would not, and that this testimony offered was properly excluded. If this oleomargarine was sold by a duly authorized clerk, it was a sale by Mr. Williams, as much as if it had been sold by him. He was engaged in the oleomargarine business, although his place of business was called a “butter market.” He knew, .of course was boi ind to know, what the provisions of this statute were. We think that this case is within the principles laid down by the. Supreme Court in State v. Kelly, supra.

When a man offers oleomargarine for sale in his store in the open market, along with butter, or otherwise (an adulterated article of food, the sale of which is prohibited, except upon certain conditions) the duty is imposed upon him to see that the laws of the state are complied with. He may sell it and attend to the matter of sale himself, if he sees fit; but if he prefers to leave it to clerks or others whom he employs, he doe so at his peril; and if the provisions of these sections .of the statute are violated, he must suffer the penalty imposed by law. These provisions axe in the nature of police regulations, enacted as the Supreme Court has-, said, for the protection of the public. This statute should be so construed by the courts as to admit of its practical enforcement. To hold that by private instructions to a clerk a person in the oleomargarine business might escape prosecution or punishment, would go a long way, it seems to us, toward destroying the beneficial effects and purposes of this law. In many cases, such goods are ordered by telephone, and the clerk is not seen ; there is no way of identifying him. We think it is not imposing' an extraordinary hardship upon one who engages in selling adulterated or counterfeit food to require him to see, at his peifil, that the law of the state is complied with. Where the article is sold by his authority, it is not like a case where a party has prohibited his clerks from selling the article at all, or where the clerk without any authority has sold the article, or where some one has come into his store without authority and sold the article. But here is a case where the party is engaged in the business of selling where he intends to sell it, and where his clerks are authorized and employed to sell it.

A paragraph from 3 Greenleaf, Evidence Sec. 21, is in point. I will read a portion of it:

“But where a statute commands that an act be done or omitted, which, in the absence of such statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by- the statute, it seems, will not excuse its violation. Thus, for example, where the law enacts the forfeiture of a ship having smuggled goods on board, and such goods are secreted on board by some of the crew, the owner and officers being alike innocently ignorant of the fact, yet the forfeiture is incurred, notwithstanding their ignorance. Such is also the case in regard to many other fiscal, police, and other laws and regulations, for the mere violation of which, irrespective of the motives or knowledge of the party, certain penalties are enacted; for the law, in these cases, seems to bind the party to know the facts and to obey the law at his peril.”

We think in holding as we do, we are following the principles and spirit of State v. Kelly, supra. In the absence of a decision directly in point, we are of the opinion it ought 'to be the law, and we hold it to be the law, that where one engages in a business of this kind, he does it at his peril, and that the duty is imposed upon him to know, that those whom he employes to sell this article to the public, obey the law in the manner of selling it, and in case they do not, that he, as' the principal and proprietor of the establishment, is liable to pay the penalty assessed by the statute. We feel that any other holding would practically destroy this statute and thwart the object and purpose that the legislature had in view. We believe it to be a wholesome law and that it should be construed so that it may be enforced.

The judgment will be affirmed.

PARKER, J.,

dissenting.

As indicated in the opinion delivered by my associate, we are not in accord on one proposition involved in this case. The defense, or one of the defenses attempted to be established by the evidence, was fairly stated by Judge Hull. The defendant undertook to show that he had, in good faith, instructed all of his employes that they were not to sell oleomargarine, except it.were first stamped or labeled as required by the statute, and that this sale was made by one of his employes authorized to make sales, but that he was in ignorance of the fact, and so far as he was concerned, it was in violation of his will and his express instructions. Now it will be noted that this prosecution here is not for adulterating food, but for selling oleomargarine without stamping it* or labeling it, as required by law; and it will be remembered that it is not unlawful in Ohio to sell unadulterated oleomargarine; that it is quite as lawful, providing- this regulation as to stamping it is observed, to sell oleomargarine, as it is to sell sugar or silks, or cottons or other merchandise. There is certainly by the law no more inhibition against or disfavor shown to the keeping for sale and selling of this article, than there is to the keeping for sale and selling of intoxicating liquors. The penalties for unlawful sales are not.so heavy. Nevertheless, it is made a crime to sell oleomargarine, unless the label is put upon the package. It is not made a crime to keep it without a label upon it, but it is made a crime to sell it without labeling it. Therefore, the vendor may lawfully keep it in his possession, with the purpose of selling it, and does not thereby violate the law. JKe need not label it until he comes to make the sale; and therefore he may keep it in bulk, as I take it from the evidence was done in tbis case; so that when a person applies to buy, such quantities may be sold, whether a pound, two pounds or more or less, as the person applying for the article desires; and, after the package is made up of the quantity desired, before it goes out of the possession of the seller, it must be labeled.

It seems to me that the principle laid down in the case of State v. Kelly, 54 Ohio St. 166 [43 N. E. Rep. 163], does not reach this case, for an entirely different principle is there involved; and it is significant (though my associates seem to think that the court there was departing from principles announced in well considered cases that have* stood the test of years and are the settled law of the state) ; that the court there does not refer to any of those cases, does not criticise them, does not reflect upon them or indicate any purpose io depart from them at all; and, in my opinion) it was not the purpose o£ the court to do so, and the court has not done so, but the decision in the case of State v. Kelly; supra, is entirely consistent with the principles of the criminal law theretofore announced by the Supreme-Court in the cases referred to by my brother in stating his views of this case. In this case, we have not, as we have in State v. Kelly, supra, a question of scienter, or guilty knowledge; neither have we a case presenting a question of the purpose with which the goods were sold. But we have simply the question, did the defendant do the act? The defense, as I understand it, goes to that question. The defendant undertakes to show that he did not do the act. Of course it would not be sufficient to show that he had simply given secret instructions to the clerk; nor would it be sufficient to show that he had given formal public and notorious instructions to the clerk to not sell unless he observed the law. The defendant must convince the jury that he has, in good faith, forbidden and tried to prevent sales except as authorized by law. The jury must so find, in order that the defendant shall be exonerated; and that the defendant here undertook to prove, but be was not permitted to do it. We have simply the question whether the defendant had a right to undertake to show, as indicating his innocence, that he had, in good faith, instructed his clerks to not sell this article, except when labeled according to law; whether he had a right to offer evidence to prove that he had in good faith 'forbidden them to sell it otherwise. Therefore I feel that I am not called upon to express any opinion upon what the evidence indicates as to the real knowledge or purpose of the defendant in the ease upon this point and issue, which was not permitted to go to the jury.

We have all looked for authorities with considerable diligence along this line of agency; we have found some which seem to me to be directly in point; we have found none except such as hold that if the defendant shows that he has in good faith instructed or directed his agents, and they violated the law in opposition to his will, he cannot be convicted. In other words, that where there is another free moral agent intervening to defeat his will and purpose, and that other free moral agent does the act, it is not the act of the defendant, and to punish the defendant is to punish him for the act of another, a result which I declare with all due respect for those from whom I differ, seems to me must be obnoxious and abhorrent to the sense of justice of the average man. I read from Bishop, New Cr. Law Sec. 218:

“By general doctrine, it i's no crime for a man to employ a servant in a lawful business; and if the servant commits a crime therein, the master is not liable. But we shall see further on, that the master may be so careless in selecting his servant as to become answerable criminally for acts done in the service. And it appears from some of the older books that a sheriff is indictable for a mere negligent escape suffered by a deputy; for example, his jailor; because he 'ought to put in such a jailor as for whom he will be answerable.’ But we may doubt whether in this sort of a case the doctrine of responsibility would be carried so far now, in fire absence of special circumstances; and it seems in a general way to be settled that he cannot be held criminally for the conduct of his deputy; though he may be liable in proceedings quasi criminal, for the enforcement of civil rights. Further to illustrate, * * * :

• Section 219. “In liquor selling: Under the statutes forbidding the sale of intoxicating drinks without license, and the former ones against selling goods to slaves without the consent of their masters, it is sufficient in defense that the sale was made by the defendant’s clerk, unauthorized either absolutely or by implication. And it is the same though the statutory words are ‘by agent or otherwise.’ Still we have cases in liquor selling which carry the liability of the employer very far.”

Cases are there cited, to some of which I will refer briefly. The case of Hipp v. State, 5 Blackf. 149 [33 Am. Dec. 463], The syllabus of that case is as follows:

“The general rule is, that a master is liable'in a civil suit for the negligence or unskillfulness of his servant, when he is acting in the employment of his master; but that he is not subject to be punished by indictment for the offenses of his servant, unless they were committed by his command, or with his assent.”

In the case of the State v. Dawson, 2 Bay 360, the supreme court of South Carolina holds:

“Upon an indictment for trading with a negro, without a ticket from his master or person in whose charge 'he was, contrary to the act of the legislature in such case provided. Verdict, guilty. Motion for new trial.
“On the trial of this case at Georgetown, it appeared that the defendant kept a small retail store in the neighborhood, and that the prosecutor's negro had been seen carrying corn to this store, and delivering it to a clerk, who had the care of the store.
“The attorney general then contended, that the evidence had brought the defendant clearly within the meaning of the act, which 'declares 'that if any shopkeeper, trader, or other person, shall at any time after the passing of the act, by himself or any other -person, directly or indirectly, buy or purchase from any slave in this state any corn, rice, pease, or other grain, bacon, flour, tobacco, cotton, indigo, blades, or any other articles whatsoever, or shall deal, trade or traffic with any slave whatever, not having a ticket or permit so to deal, trade or traffic?, or to sell any such article, from the master or owner of such slave, or such other person as may have the care and management of such slave, every such person, shopkeeper and trader shall, for every such offense forfeit a sum not exceeding $200, to be • recovered by bill, plaint or indictment, one-half to the informer, and the other moictv to the state, in any court of competent jurisdiction in the same.
“The attorney general then argued, that although the evidence had not proved that the defendant himself had received the corn, yet it was delivered to his clerk or storekeeper, who was the defendant’s agent, and therefore it was presumable he had defendant’s orders for it, and consequently that he was chargeable under this indictment.”

Then the arguments upon the other side are given.

“The presiding judge (Waites) told the jury, that he thought the evidence not sufficiently strong to convict the defendant, without some knowledge of the fact had been brought home to him, or some general order or direction had been proved to have been given to his clerk for that purpose.”

The verdict was guilty, and the per curiam is as follows:

“There ought to be a new trial in this case, as there is no knowledge of this fact brought home to the defendant, nor any general directions proved against him; and although the prosecution might be maintained against the clerk who received the corn, yet there is nc proof to charge the defe'ndant, as was very properly laid down by the presiding judge on the trial.”

Another case that has been referred to and commented upon somewhat by my associate is that of Barnes v. State, 19 Conn. 398. I again call attention to that case, because it is a case that seems to be cited in the text books generally and a case which seems to have received the approval of law writers and of courts, and especially because it has received the express approval of the Supreme Court of the state of Ohio in the case of Anderson v. State, 22 Ohio St. 305, and in this connection I mention a fact to which my attention had not been drawn Until my associate began or was in the course of the delivery of the opinion here, namely, that notwithstanding it is evident that in the state of Massachusetts ignorance of the quality of the liquor sold, that is to say as to its alcoholic or intoxicating quality, is no defense, yet, it is distinctly held in the state of Massachusetts as being entirely consistent with that doctrine that it is a defense to show that the act was done by an agent and in opposition of the will or direction of the employer; so that I think the two doctrines are not at all obnoxious, the one to the other. Now the syllabus of this case has already been read, and I desire to read briefly from the discussion by Ellsworth, J., and while it has been indicated that there was a dissenting opinion, that which is approved by the Supreme Court of Ohio is the opinion of the majority, and not the dissenting opinion. I read from Barnes v. State, supra, 405:

‘'But in another ruling of the court, we are constrained to say, that there is error. The accused (a statute witness), was offered to testify, that the sale was made without his consent, and contrary to positive instructions given to his clerk, by whom the sale was made, if made at all. The accused insists, that the word ‘agent,’ shall be taken in its common acceptation; that the relation of principal and agent is matter of fact, to be left to the jury, and not an inference of law for the court. If he is right, the testimony should have been re-reived, as conducing to prove there was no agency in fact. The true inquiry then is, what does the statute mean, by the term ‘agent?’ A just interpretation must be our guide. If qonstrued either way, it will not, we think, exceed the power of the legislature, though we should be mduced, from necessity only, to put upon a common word, an uncommon and technical meaning, particularly in the construction of a penal statute. It certainly does not mean, that a person is another’s agent in every transaction, because he sustains towards him that general reflation. Nor does it mean, every one who professes to represent another; nor every one who acts as clerk of another in his shop, or office, or business; nor every one who sells liquor on his employer's premises, without, and contrary to, his instructions. Obviously, courts can attach no other than the usual meaning- to the word ‘agent/ unless unequivocally forced to it, by the clear language or' construction of the statute. An agent is-an actual bona fide representative of his principal, in the particular transaction, with his consent or concurrence. What shall be sufficient evidence of it, in any case, does not belong to the present inquiry; the relation must be made ■ out by proof, more or less particular, according to circumstances. We speak only of criminal cases for we admit, that in civil matters, to prevent imposition or fraud, the relation of principal and agent is assumed, by courts, to exist, where" it does not in truth exist. We are confident, this statute has not introduced a new principle of law into our criminal code; but this word ‘agent/ is used, in order to guard against a too technical construction of a criminal statute; a caution not really needed in this case, but very natural with such men as make our laws.
“Besides, it must be remembered, that selling spirituous liquor, is, generally, a lawful business; it becomes unlawful only in particular cases. A grocer, a druggist, a physician, may sell it for medicinal purposes ; and for other purposes, if it is not to be drunk on the premises, and is not sold to common drunkards and persons addicted to habits of intoxication. Within these limits, he may direct his clerk, student or servant, to act for him, and forbid him to go further. The sincerity of the order must be judged of, by the jury ; it may be sincere and proper, and might have been in this case; at any rate, we cannot say, that per se it must have been otherwise.
“In Commonwealth v. Nichols, 51 Mass. (10 Metc.) 259, 262, 263, the supreme court of Massachusetts in a prosecution on their statute, for selling spirituous liquors, hold this language: ‘We think that a sale by the servant, in the shop of the master, is only prima facie evidence of such sale by the master as would subject him to the penalty for violating the statute forbidding the sale of spirituous liquors without license; that the relation of these parties, the fact that the defendant was in possession of the shop, and was the owner of the liquor, and that the sale was made by his servant, furnish strong- evidence to authorize and require the jury to find the defendant guilty." But we cannot say that no possible case can arise in which the inference from all these facts may not be rebutted, by proofs; unexplained, they would be sufficient to convict the party. So too, it should be understood, that merely colorable dissent, or a prohibition not to sell, however publicly or frequently repeated, if not made boiia *fid.e, will not avail. But if a sale of liquor is made by the servant, without the knowledge of the master, and really in opposition to his will, and in no way participated in, approved or countenanced by him, and this is clearly shown, by the master; he ought to be acquitted.’ ”

The case contains some further discussion and citation of authorities.

Now the language of the Supreme Court of Ohio in the case of Anderson v. State, 22 Ohio St. 305, is very much like that used in these eases; and Barnes v. State, supra, and Commonwealth v. Nichols, 51 Mass. (10 Metc.) 259 [43 Am. Dec. 432], are cited with approval bv the Supreme Court of Ohio in that case. In Anderson v. State, supra, the statute which the Supreme Court had under consideration used the language “whoever sells by agent or otherwise,” and Chief Justice White says:

“To bring a person within the operation of the act, the elements which constitute the offense must attach to him. He must make the sale. It is immaterial whether he does it directly or indirectly. The object in using the phrase, 'by agent or otherwise,’ was to show expressly and unequivocally that the act was intended to embrace every means that the person charged might employ in effecting the illegal sale.
“The rule as to the conclusive effect of the prima facie, or apparent authority of an agent, ought not to be applied to the enforcement of a criminal statute where such statute is fairly susceptible of a different construction. The accused, in such case, has the right to rebut the presumption of prima facie agency, which the evidence makes against him, by showing, if he can, that, the criminal act was, in fact, committed without his authority and against his instructions.
“Strictly speaking, the legal relation of principal and agent does not exist in regard to the commission of criminal offenses. All who participate in the commission of such offense, are either principals or accessories. In offenses less than felony, all are principals. But when it in fact appears that the person accused in no way participated in the commission of the criminal act, he ought not, by construction, to1 be made punishable for it.
“Of course, the directions to the clerk or agent forbidding the sal must be in good faith to be of any avail. For, however notorious or formal such directions may be, they can have no effect if they are merely colorable. The fact of agency is to be determined by the real understanding between the principal and agent.”

If the employer may be held accountable criminally for infractions of this law by his employes, notwithstanding the bona tide instructions and efforts of the former to prevent unlawful sales, then he is so much at the mercy of his employes that if one of them should purposely disregard his instructions and violate the law with a malicious purpose of getting his employer into trouble, that fact could not be' shown for the purpose or with- the effect of exonerating the employer. I repeat, such results are not in harmony with the spirit of fairness and the humane principles permeating' our criminal law.

Now, as I have said, it seems to me that in the ease of State v. Kelly, supra, there is no departure by our Supreme Court from well-settled principles respecting the question of scienter in prosecutions for violations of statutes respecting the adulterating of food, and that there is no indication of any purpose to depart from, or to qualify the rule laid down by the Supreme Court in the case of Anderson v. State, supra. And, for my part, upon a mere apprehension of what the Supreme -Court-might possibly do, I am not willing to decide contrary to what I understand to be at present the express holding of the Supreme Court of Ohio.

Therefore, I dissent.


source: Caselaw Access Project

author: GIFFEN, J.

license: Public Domain

text:
    WILLS — EVIDENCE—TRIAL.
    [Hamilton (1st) Circuit Court,
    December 16, 1903.]
    Giffen, Jelke and Swing, JJ.
    Elizabeth Schmitt Kuhl, Exrx., et al. v. Margareta Reichert et al.
    1. DECLARATIONS 03'’ TESTATRIX COMPETENT TO Sl-IOw TESTAMENTARY CAPACITY, BUT not Contrary Intention.
    Oral declarations of a testratrix as to her testamentary intentions made during her last sickness and shortly after the execution of her will are not admissible to show an intention contrary to that expressed in the will nor to vary or contradict its terms, but are competent as tending to show the condition of her mind at the time the will was executed.
    2. Error in Charge not Reviewed Unless Entire Record Shows it Prejudicial.
    An alleged error in a charge to the jury will not be reviewed where no exception was taken thereto at the time, unless it appears from the whole record that injustice has been done to the complaining party by reason thereof.
    Error to court of common pleas of Hamilton county.
    Closs & Luebbert, for plaintiff in error. .
    Renner & Renner, for defendant in error.
   GIFFEN, J.

No exception was taken to the charge of the court, and hence any alleged error -therein will not be considered, unless upon the whole record it appears that injustice has been clone to the party complaining.

That part of the charge now objected to is as follows:

“Declarations made by the testatrix at, before, and after the making of the purported will as to her intentions in making the will are admissible to prove not undue influence, but capacity and intention, and should be considered in determining the state of the testatrix’s 'rifind.”

If the court meant that such declarations were competent to prove an intention other than that expressed in the will, it was erroneous, because oral testimony is no more admissible to vary or contradict the terms of a written will than the terms of a contract in writing; but concerning the other proposition i'n the charge, to wit: “Declarations made by the testatrix * * * should be considered in determining the state of the testatrix’s mind,” it is said in Page, Wills 474: “Any declarations of testator which tend to show the condition of his mind at the time that he made his will are admissible to determine his mental capacity at that date. So, statements made by testator relative to his intentions of disposing of his property are admissible, not for the purpose of contradicting* the contents of his written will, but to show his state of mind at the time that he executed such willin support of which many cases are cited.

The strongest case cited by the plaintiffs in error in support of their contention that such declarations were inadmissible is Crocker v. Chase, 57 Vt. 413, the first proposition of the syllabus being as follows:

“The declarations of a testatrix,, made subsequently to the execution of the will, and at a time when she was of sound mind, are not admissible for the purpose of showing her mental condition when the will was executed. There is no logical relation between such declarations and the fact sought to be proved; although it is otherwise when mental unsoundness exists at the time the declarations are made.”

The difficulty encountered in applying this case to the one before us, is that it is not clear 'that the testatrix, Philipina Schmitt, was, at the time the declarations were made, of sound mind. The particular declarations complained of and recited on pages ten and eleven of the bill of exceptions were made at the time of her last sickness and shortly after the execution of the will. Her feeble condition by reason of her last sickness beginning a few weeks before the execution of the will, together with her advanced age, tended to corroborate the witnesses who were of the opinion that her mind was enfeebled.

We are of the opinion therefore that the declarations of the testatrix concerning her testamentary intentions were admissible to show the state of her mind at the time the will was executed, and if they were considered by the jury to prove undue influence it was not prejudicial because the jury in answer to two special interrogatories found that the testatrix was not unduly influenced and did not have sufficient mental capacity to make a will at the time the will in question was executed.

The verdict of the jury was not so manifestly against the weight of the evidence as to require a reviewing court to set it aside.

The judgment will be affirmed, ’


author: DUSTIN, J.

text:
    EXECUTORS AND ADMINISTRATORS.
    [Franklin (2nd) Circuit Court,
    February, 1904.]
    Sullivan, Dustin and Wilson, JJ.

      Walter B. Page, Jr., Admr., etc. v. Minnie Warnock.
    Section 3167 Rev. Stat. Authorizes Appointment Only as Indicated by Sec. 6005 Rev. Stat.
    Section 3167 Rev. Stat. gives the surviving partner the right only to hasten the settlement of the estate of his deceased partner by making application for that purpose; but does not authorize the probate court to make an appointment pursuant thereto in any manner other than that pointed out in Sec. 6005 Rev. Stat.
    Error to common pleas court of Franklin county.
    Watson & Page, for plaintiff in error.
    C. D. Saviers, for defendant in error.

       Affirming Warnock v. Page, 14 Dec, 278.

   DUSTIN, J.

We are of the opinion that Sec. 3167 Rev. Stat. gives the surviving partner the right only to hasten the settlement of the estate of his deceased partner by making application for that purpose; and does not authorize the probate court to make an appointment pursuant thereto in any other manner than that pointed out in Sec. 6005 Rev. Stat.

We think therefore that the probate court erred in appointing plaintiff in error as administrator of John W. Warnock, deceased, and in overruling the motion to remove him, and that the judgment of the common pleas court, reversing said action, should be affirmed.


text:
    PARTNERSHIP — FRAUDULENT CONVEYANCE — MORT= GAGE — INSOLVENCY.
    [Hamilton (1st) Circuit Court,
    January 14, 1904.]
    Giffen', Jelke and Swing, JJ.
    W. A. Goodman, Jr., et al. v. Joseph Rawson et al.
    1. Mortgage of-Partner on Individual Property to Secure Firm Notes Held to be an Assignment in Trust.
    Where partnership notes, together with the individual mortgage of one partner ■ securing the same, are executed and delivered by a member of the partnership to the vice president of a bank to secure a partnership loan, and the entire transaction on its face appears to be a bona fide loan from the vice president on his individual account, but it is afterwards shown that the vies president secured the money he advanced from the bank on his individual note by depositing the partnership notes as collateral security for its payment; that he had never before made individual loans on real estate security; that the interest on his note to the bank was not paid by him, but that he expected and intended the interest from the partnership notes deposited as collateral security to be applied towards its payment; that the mortgaged property was afterwards bought by the bank for a less sum than the amount of the vice president’s note to the bank and title thereto taken in the name of the vice president as trustee for the bank, thfe mortgage so executed and delivered to secure the partnership notes will, in such case, be adjudged to be an assignment in trust to the vice president as trustee for the benefit of the bank.
    2. Knowledge of one Partner not Imputed to Another, When.
    Where a nonactive member of a partnership executes a mortgage upon his individual property to secure the payment of partnership notes executed by him and his partner who has the active management of the firm business, such mortgage will not be treated as an assignment in trust to a trustee in contemplation of insolvency with intent to prefer one or more creditors under Sec. 6343 Rev. Stat., simply because the active partner had knowledge at the time of the pressing demands of the firm creditors, the threatened cancellation of certain contracts, and the fact that he had also resorted to certain devices to conciliate creditor and postpone payment of their demands, when it does not appear that the nonactive partner who gave the mortgage had knowledge of the firm’s financial status.
    Appeal from the court of common pleas.
    John C. Healy a¿icl Malcolm McAvoy, for plaintiffs.
    Stephens, Lincoln & Stephens, for defendants.
   GIFFEN, J.

The plaintiffs seek to have a mortgage, executed and delivered by the defendant, J. W.' Cotteral, to the defendant, Joseph Rawson, declared an assignment in trust to a trustee, made in contemplation of insolvency with the intent to prefer one or more creditors, under Sec. 6343 Rev. Stat., as in force on January 6, 1896.

In December, 1895, the defendant, The First National Bank, held seven promissory notes executed and delivered by J. W. Cotteral and J. W. Cotteral, Jr., and payable to the order of J. W. Cotteral & Company, a- firm composed of J. W. Cotteral and junior, amounting to $27,-500. At that time the firm had a contract 'for the erection of a school house in Detroit, Michigan, at a cost of nearly $200,000. The work was not progressing according to the terms of the contract, the estimates were delayed, and when obtained were less than anticipated, material needed first in construction was not delivered, while that which could not then be used was on the ground, with the vendors demanding payment. Thereupon J. W. Cotteral, Jr., applied to the First National Bank for an additional loan of $12,000, which the officials of the bank agreed to secure for him. A mortgage on the real estate of J. W. Cotteral, Sr., was offered as security for the old debt and the present loan, making in all the sum of $39,500.

Afterwards the defendant, Joseph Rawson, who was vice president of the bank, agreed to make the loan, and on January (J, 1890, a mortgage was executed and delivered to him by J. W. Cotteral upon all his real estate to secure ten notes amounting to $39,500, executed by J. W. Cotteral and J. W. Cotteral, Jr., and' payable to the order of J. W. Cot-teral & Co.; and at the same time Joseph Rawson executed and delivered to the bank his promissory note for $39,500 and gave the notes of the Cotterals for the same amount as collateral security, and from the proceeds -thereof gave a check to the bank for $27,500, for which he received the seven Cotteral notes, which were surrendered to the Cot-terals, and caused a check for $12,000 to be credited to the account of J. W. Cotteral & Co. in the bank. It is claimed that this loan was, - as appears on the face of the transaction, made by Mr. Rawson on his individual account; but he admits that he had never before loaned money upon real estate security, that he never paid the bank any interest on his note, saying that he expected the interest collected from the Cotterals on the collateral note to- pay it; that a part of the property was bought by the bank at a consideration less than the amount of the note of A-Ir. Rawson, and that the title was taken by Rawson as trustee for the bank. Although the original transaction had the form of a bona fide loan from Air. Rawson to J. W. Cotteral, the subsequent acts of the parties continuously discredit it, until the final act of purchasing the property in the name of Air. Rawson as trustee reveals the true situation of the parties. We are impelled therefore to hold that the mortgage was an assignment in trust to a trustee.

But we find, however, that it was not made in contemplation of insolvency with the intent to prefer one or more creditors. The facts relied on by plaintiffs to prove that it was so made are the financial condition of the .firm of J. W. Cotteral & Co. at the time, the pressing demands of creditors during a few months just prior, the devices resorted to by J. W. Cotteral, Jr., to conciliate the creditors and postpone payment, and the threatened cancellation by the school board of the Detroit contract, of all which matters J. W. Cotteral had little, if any, knowledge, as he was- practically out of the partnership for a year prior to its assignment. Counsel for plaintiffs admit this, but say that J. W. Cotteral., Jr., knew them and that therefore the senior member was bound to know. It is true that he would be bound by the action of J. W. Cotteral, Jr., as a member of the firm or as his agent; but the inquiry here is what did the mortgagor contemplate and intend at the time he executed the mortgage ?' What was the state of his mind, and how did the facts relied on influence him ? It is clear that if not brought to his attention they could in nowise have influenced his mind or fixed his purpose in the execution of the mortgage. '

It appears from the evidence that J. W. Cotteral, Jr., negotiated the loan, and at his request the note and mortgage- was signed by J. W. Cotteral.

We hold therefore that the mortgage was not made in contemplation of insolvency with the intent to prefer one or more creditors, and there will be a decree for the defendants.


author: JELKE, J.

text:
    WILLS.
    [Hamilton (1st) Circuit Court,
    1903.]
    Giffen, Jelke and Swing, JJ.
    Henrietta C. Gibson v. Peter Gibson.
    1. Proponents Must Show Will was in Existence and Unrevoked at Testator's Death.
    Where an alleged last will and testament cannot be found, the burden of proof is upon the proponents to satisfy the court that the will was in existence and unrevoked at the time of the alleged testator’s death and was lost, spoliated or destroyed subsequent thereto.
    2. Existence may be Shown by Presumption or Circumstantial Evidence.
    The existence, unrevoked, of an alleged last will and testament at the time of and subsequent to the alleged testator’s death may be established by circumstantial evidence or presumption, the same as any other -fact, as well as by direct evidence. The presumption of continued existence grows weaker the longer the lapse of time since the alleged will was last seen.
    3. What Evidence not of Probative Force on Issue of Existence of Will.
    Where the issue in a probate proceeding is the existence of an alleged will subsequent to the death of the alleged testator, irrespective of his intention, lack of evidence of a changed intention of the decedent, and of his physical disability, after the existence of a will, has some but very little probative force in establishing such issue.
    4. Will Lost or Spoliated Bekore Death Cannot be Probated Under Secs. 5944 and 5947 Rev. Stat.
    A will cannot be probated under Secs. 5944 and 5947 Rev. Stat. where it appears that it was “lost, spoliated or destroyed” prior to testator’s death and without his knowledge, or even against his will. Said statutes app'ly only , to the probate of such wills as were unrevoked at the testator’s death and are lost, spoliated or destroyed subsequent thereto, or after he has become incapable of making a will by reason of insanity.
    5. Word “Lost” When Applied to Wills Means Nonexistent.
    The word “lost," when used with reference to an alleged last will and testament in a probate proceeding, means when the alleged will becomes substantially or for practical purposes nonexistent, and must be given some of the signification of “spoliated” or “destroyed,” although, as a general rule, it means when a thing has been duly searched for and cannot be found.
    ERROR to common pleas court of Hamilton county.
    Lawrence Maxwell and Charles P. Brown, for the proponents.
    Thomas B. Paxton and Thomas B. Paxton, Jr., contra.
   JELKE, J.

There is a failure of sufficient proof of fact and a failure of sufficient balance of presumptions to satisfy the court that the alleged will of decedent existed unrevoked at the time of his death and was lost, spoliated or destroyed subsequent to his death.

True, a thing is lost when “it has been duly searched for and cannot be found.” It is then presently lost, and lost in relation to those who are searching for it. But the word “lost” here must be given some of the signification of “spoliated” or “destroyed.”

Where the time when a thing is lost bears a relation to the time of another fact, that is, the death, the word “lost” must be construed in relation to the thing itself, and must mean when the paper becomes substantially or for practical purposes nonexistent. It will not do to establish the time of the loss in relation to the death by the search, and say that if vain search had been made on November I,'the will would have been lost before the death and because vain searfch was made -on November 9, the same was lost after the death.

Lord St. Leonard’s case, L. R. 1 Probate Div. 232, is the most apt and powerful authority counsel for proponents can cite, but its effect is diminished by the statutes, Secs. 5944 and 5947 Rev. Stat. It will not be contended that if it clearly appeared that the paper had been “lost, spoliated or destroyed” prior to the death without testator’s knowledge or even against his will, it could be probated in this proceeding under these statutes.

The time when the alleged will became “lost” in relation to the death is here the cardinal issue of fact, before or after, and the burden is on proponents to “satisfy” the court.

The fact of the paper’s existence subsequent to the death can, like any other fact, be established either by presumption or circumstantial evidence, as well as by direct evidence.

Evidence of decedent’s unchanged intention, or rather lack of evidence of a changed intention,, and of his physical disability, is circumstantial and has some probative force, but very little where the issue is “existence of the paper subsequent to the death” irrespective of intention.

Giving this circumstantial evidence weight enough to rebut the presumption of revocation, the question of the time when the paper became lost persists.

The presumption of continued existence grows weaker the longer the time elapsed since the paper was seen on November 1. The presumption is stronger that the paper became “lost” on November 7 than on November 9.

The balance is very delicate, but slightly against the probate of this alleged will. Proponents cannot therefore prevail, since the burden is upon them to “satisfy” the court.

Judgment affirmed.


author: SWING, J.

text:
    MUNICIPAL CORPORATIONS — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    1904.]
    Giffen, Jelke and Swing, JJ.
    Cincinnati v. Fred G. Grebner.
    Municipality Liable foe Dangerous Condition in Street Caused by Ice, When.
    A municipal corporation is charged with knowledge of, is guilty of negligence in failing to remove, and is liable in damages for injuries resulting from, a dan- ' gerous condition or obstruction in one of its streets caused by water escaping for a period of ten days from a municipal water main onto the street and freezing in such manner as to form icc eighteen inches thick on the side of the street where the water escaped, and sloping down to a thickness of two or three inches on the other side, thereby rendering the street dangerous for vehicular travel.

      Error to court of common pleas of Hamilton county.
    Charles J. Hunt, city solicitor, and Albert H. Morrill, assistant city solicitor, for plaintiff, cited:
    Engel v. Lightning Co. 5 Circ. Dec. 572 (12 R. 489) ; Chase v. Cleveland, 44 Ohio St. 505 [9 N. E. Rep. 225; 58 Am. Rep. 843] ; Van Dyke v. Cincinnati, 12 Re. 178 (1 Disn. 532) ; Leipsic (Vil.) v. Gerdeman, 68 Ohio St. 1; Sec. 2640 Rev. Stat.; Baltimore & 0. Ry. Co. v. Whitacre, 35 Ohio St. 627; Bond Hill (Vil.) v. Atkinson, 9 Circ. Dec. 185 (16 E. 470).
    Notice to a police officer is not notice to the city. Chase v. Cleveland, 44 Ohio St. 505., 515 [!) N. E. Rep. 225; 58 Am. Rep. 843] ; Woodhull v. New York, 150 N. Y. 450 [44 N. E. Rep. 1038]* Wyman v. Hal-lock, 4 S. Dak. 46!), 471 [51 N. W. Rep. 1071 ; Cook v. Anamosa, 66 Iowa 427 [23 N. W. Rep. 907].
    Though no exception was taken to this general charge, this court ■ still has the right to review the same, and reverse the judgment, if there' were errors committed. Dollman v. Haefner, 4 Circ. Dec. 290 (12 R. 721) ; Marietta & C. Ry. Co. v. Strader, 29 Ohio St. 44.8; Baker v. Pend-ergast, 32 Ohio St. 494, 495.
    fi. J. Witte and fi. J. Wernke, for defendant.
   SWING, J.

The evidence in this, case shows that Grebner’s horse was injured by falling on the ice that had accumulated in Avery alley or street in said city; that ice did not exist generally in the streets and alleys of said city at this time and in fact did not exist in this street except at the point where the horse was injured. While the ice in this street was caused by the cold weather existing at the time, it was not produced by rain or snow, but was produced by water escaping from a water main of the city which ran upon the street and was frozen and became a dangerous obstruction in the street, being some eighteen inches thick at one side of the street where the water escaped and sloping down to two or three inches at the other side and being of such a nature as to be very dangerous for ,a horse to go upon. This condition, to a more or less extent, had existed for ten days or more, and was not caused in a night or by any sudden storm. Clearly the city had caused this obstruction by its negligence and must have known of it, and it being a nuisance it was its duty to remove the obstruction. Certainly a reasonable care of its streets would require the city to r.emove this obstruction. We see no contributory negligence on the part of Grebner, and on the whole case we think the judgment should be affirmed,


text:
    RAILROADS — STREETS.
    [Hamilton (1st) Circuit Court,
    1903.]
    Giffen, Jelke and Swing, JJ.
    Henry Herzog et al. v. Pittsburg, C. C. & St. L. Ry. Co. et al.
    Haying Side Track: in Stkeet Wi-ieke Damages Reacote and General, not Enjoined.
    There is no taking of private property within the meaning of the constitution when there is no direct or special invasion of property rights, and the only-damages complained of are remote and not different in kind or hardly appreciably more in degree than what is suffered by the general public. Hence, injunction will not lie to restrain the laying of a railway side track in a public street where it appears that complainant’s property will not abut upon the track when completed, but will lie at a distance of fifty and one hundred and sixty feet respectively from the ends thereof, that the ingress and egress to and from all the property abutting on the entire street will not he affected thereby, that no damages different in kind or degree from that suffered by the general public will result to complainant, that the inlet and outlet to other streets will not he obstructed therefrom, and that the rails of the proposed track will be laid even with the surface so as to make no obstruction to vehicles making use of the street.
    Cabell & Frieberg, for plaintiffs.
    Maxwell & Ramsey, contra.
   JELKE, J.

This case is considered on the basis that defendant company proposes to lay a side track on the south side of Water street extending seventy feet east of Walnut street. If the top of the rails of such track is laid even with the surface of the street so as to make no obstruction in the street to wagons passing over the same, an injunction will be denied.

The nearest objecting property owner abuts on the north side more than fifty feet east of the east end of this proposed side- track, and the nearest objecting property owner abutting on the south side of the street is about one hundred and sixty feet east of the east end of this proposed track.

We are of opinion that on account of the remoteness of the complaining property, the fact that access and egress to and from the property and the street itself between tbe lot lines extended are not at all affected, and that there is an abundance of unobstructed inlet and outlet both east and west to the other streets of the city, and that this track is to he used only as a side track, makes the damage to these complaining property owners no different in kind and hardly appreciably more in degree than that suffered by the general public, and hence there is no taking of private property, and brings this case fairly under the case of Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264 [62 N. E. Rep. 341; 87 Am. St. Rep. 600].

As to the violation of the city ordinance in using the track in the middle of the street during daylight we will leave the parties to the police department of the city for the present.


text:
    CONSTITUTIONAL LAW — TAXATION.
    [Hamilton (1st) Circuit Court,
    1904.]
    Giffen, Jellce and Swing, JJ.
    State, ex rel. Smith, v. Eugene L. Lewis (Auditor).
    Act Relatiug to Disposition or Foüfeited Land at Tax Sales Constitutional.
    Tlie act of April 10,1900 (94 0.'L.116; See. 2907a Rev. Stat. et seq.), providing ■ that where land offered at delinquent tax sale has not been sold for want of bidders and has been forfeited to the state for nonpayment of taxes, the county auditor shall, upon application of the owner of such land, readjust the taxes upon.the basis of the new decennial appraisement and make remittitur of a certain portion of the delinquent taxes in order to restore such lands to the live taxpaying duplicate, is constitutional.
    Mandamus.
    Stephen Coles and Franklin T. Cahill, for.relator.
    Ampt, Ireton & Collins, contra.
   JELKE, J.

We think the act of April 10, 1900, 94 O. L. 116, relating to the listing for taxation and sale of forfeited lands, is constitutional. We see no reason why the state cannot dispose of land which has been forfeited to the state and remains unsold for want of bidders on such terms as to the general assembly seem best for the purpose of getting such property-back upon the live taxpaying duplicate.


text:
    DOCKET — STATUTES.
    [Hamilton (1st) Circuit Court,
    1903.]
    Giffen, Jelke and Swing, JJ.
    Hollmeyer v. McKinney.
    Woku “Docket” in Sec. 5227 Rev. Stat. Refers to Journal.
    The word “docket” in the act of March 25, 1902 (95 O. L. 66; see Sec. 5227 Rev. Stat.), 'requiring a party desiring to appeal his case to the circuit court to file a written notice of such intention “within three days after the judgment or order is entered on his docket by the trial judge,” refers to the journal.
    Motion to dismiss appeal.
    Ernst Rehm, for plaintiff.
    Closs & Luebbert and Stanley Struble, contra.
   JELKE, J.

This cause conies on for hearing on plaintiff’s motion to dismiss the appeal, and depends upon the construction given to the word “docket” in the act of March 25, 1902 (95 O. L. 66), See. 5227 Rev. Stat.:

“A part}' desiring to appeal his cause to the circuit court shall, within three days after the judgment or order is entered oil his docket by the trial judge file a written notice of such intention.”

This court has always been very strict in requiring compliance with the statutory provisions in the matter of appeals. ,

Here it is a question of ascertaining what the statute means before enforcing the strict compliance.

We are of opinion that the word “docket” here used must mean some book which is part of the record of the case, and here must mean the journal.

We are led to this conclusion by the words of the statute before this Amendment and of the subsequent enactment of October 22, 1902 (96 O. L. 12) ; see also Moore v. Brown, 10 Ohio 197.

It must mean the book in which “the' judgment or order is entered,” and this is done only on the journal.

Appellant has complied with this construction of the statute and the motion will be overruled.