author: GORMAN, J.

text:
    PLEADING — TRIAL
    [Hamilton (1st) Court of Appeals,
    December 21, 1916.]
    Jones, Jones and Gorman, JJ.
    William Boswell v. Security Life Ins. Co.
    1. Successive Breaches of Contract do not Require Separate causes of Action.
    Several breaches of a contract do not constitute separate causes of action, and in a suit for damages growing out of the breach it is not good practice to split up the claim into a number of causes.
    2. Order Arresting Cause from Jury on Wrong Grounds Immaterial when Other Grounds Warrant Such Action.
    The fact that a trial court in arresting a cause from the jury based its action on wrong grounds is immaterial when other grounds existed which warranted such action.

      Bettinger, Schmitt & Kreis, for plaintiff in error.

      G. B. Matthews, H. D. Hinman and J. L. Gregory, for defendant in error.
   GORMAN, J.

The plantiff below brought an action to recover $250,000 damages upon three alleged causes of action, which were pleaded in the alternative, for a breach of a contract entered into between the parties whereby the plaintiff in error had been appointed the exclusive managing general agent for the defendant company for the purpose of soliciting life insurance for the defendant in the states of Ohio, Kentucky, West Virginia and Tennessee. The first draft of the contract provided that the time of the agency was indeterminate or indefinite; shortly afterwards the contract was amended so as to limit the period of plaintiffs agency to twenty years from October 30, 1901. The breach of the contract is alleged to have occurred on January 1, 1912, and it was sought to recover the damages which the plaintiff alleged he sustained for the unexpired period of the contract — nine years.

The contract consisted of several distinct paper writings, but it will not be necessary for the purpose of this decision to set out these contracts in full, but merely to refer to those portions thereof which are involved in this litigation.

In substance the contract provided that the plaintiff, Boswell, was to act as the agent of the defendant in the states above named for a period of twenty years from October 30, 1901. He was to have the exclusive right to appoint agents and sub-agents in the territory, and was to receive as commissions upon all policies of insurance secured by him, or up on all insurance written by him or his subagents a graduated amount, being 70 per cent, on some policies, 60 per cent, on others, 50 per cent, on others, 40 per cent, on others, 30 per cent, on others, and 20 per cent, on others, of the first year’s premium collected on the insurance produced by him and his subagents. He was also to receive upon all renewal premiums paid to the company upon policies produced by him and his agents 8 per cent, during the life of the policy on the condition that $100,000 of insurance produced under the contract remained in force.

The contract stipulated that the plaintiff should not act directly or indirectly as the agent of any other life insurance company during the period of time that he was to act as agent for the defendant company. The contract further provided'that it should remain in force so long as its conditions and requirements were fulfilled.

While the amended petition of the plaintiff sets out three causes of action, it appears to us that there was but one cause of action, although there may have been more than one breach of the contract. The action was to recover damages for a breach of contract, and it is immaterial how many breaches of the contract there may have been, there could be but one cause of action, and we do not think that the practice indulged in by the plaintiff in this case, in setting out three alleged causes of action, is one to be encouraged, as this appears to us to be merely a splitting up of the cause of action, and not a case of separate causes of action. However, this is not a material fact to be determined in the decision of this proceeding in error.

Among other things, the contract provides that the payment of the plaintiff commissions as agent is to be on the following terms and conditions, which are agreed to by the parties hereto. Then follow some fifteen separate paragraphs or provisions of the contract. The second paragraph provides that the plaintiff shall devote his entire time and best energies to the service of this company, and shall have the exclusive right to appoint agents in said district. The fourteenth paragraph or stipulation provides that so long as its conditions and requirements are fulfilled this contract shall continue in force. And the fifteenth paragraph or clause of the contract reads as follows:

“It is one of the conditions of this contract that there shall be produced by said second party from the territory included in the terms of this contract, accepted and paid for new business of the following amounts, to wit, during the year 1902, from the state of Ohio $1,000,000; from the state of Kentucky $500,-000; from the state of West Virginia $150,000; and that each calendar year thereafter accepted and paid for new business shall equal or exceed the following amounts, to wit, in the state of Ohio $1,500,000; in the state of Kentucky $750,000; and in the state of West Virginia $250,000; or in lieu thereof $2,500,000 from the entire territory. The termination, however, of this contract for any cause, shall in no event terminate or cancel the renewal interest of said second party as provided in paragraph fourth hereof. ’ ’

After the state of Tennessee was added to the territory of the plaintiff it was stipulated that he should produce in each calendar year after the first, during the life of the contract, $400,000 worth of accepted and paid for new business in that state, making the total amount which the plaintiff was required to produce of new business after the first year $2,900,000.

It is evidence that down to January 1, 1912, the date of the alleged breach of the contract by the defendant, the plaintiff Boswell failed to produce the minimum amount of business provided for in the contract, excepting during the two years 1909 and 1910. In each and every year in which the plaintiff failed to produce the minimum amount of business required by the contract the company waived in writing that provision of the contract which required Boswell to produce the minimum amount of business, excepting the last year, 1911, in which year the plaintiff failed to produce the minimum amount of insurance, and the defendant company did not waive in writing or otherwise the provision of the contract requiring him to produce this amount of business. During the years 1909 and 1910 the plaintiff wrote and paid for more than the minimum amount of insurance required from his territory, but it was claimed that this business was secured by him by practicing rebating.

One of the defenses set up by the company was that the plaintiff had breached the contract by granting rebates contrary to the law of the state of New York and contrary to the provisions of the contract. The insurance company further claimed in its answer that Boswell, the plaintiff, had breached the contract by failing to produce during the year 1911 the minimum amount of business required by the contract to be produced, and that inasmuch as the contract was to continue upon the condition that he did produce this amount of insurance, his failure in this regard automatically and ipso facto worked a discontinuance of his contract and rendered the insurance company immune to liability.

The plaintiff claimed that he was wrongfully discharged as agent on or about January 1, 1912. The company denied that it had discharged him wrongfully or had discharged him at all but, as stated above, it claimed that he had breached the contract by his failure to produce during the year 1911 the minimum amount of the business, and had further breached the contract by resorting to rebating, and still further breached it by devoting a part of his time and attention to another insurance company— the Massachusetts Mutual Life Ins. Co.

The trial court in arresting the case from the jury was of the opinion that Boswell, while he was acting as agent for the defendant company during the year 1911, took on an engagement with the Massachusetts Mutual Life Ins. Co. and devoted a part of his time and attention to securing a contract with that company, which was a competitor of the defendant company, and that by reason of that fact and by reason of the further fact that Boswell during the years 1909 and 1910 had resorted to rebating without the knowledge and consent of the defendant company, he was thereby guilty of a breach of the contract and was not entitled to recover any damages — assuming that the defendant company had discharged him, as he claimed, on or about January 1, 1912.

We are not satisfied that the evidence in this case shows conclusively that there was rebating by Boswell unknown to the defendant company, or that it was not approved by or condoned by the defendant company; nor are we satisfied that Boswell devoted any of his time or attention during the year 1911 to any company other than the defendant company.

We are inclined to the opinion that the court was not justified in arresting the case from the jury upon the grounds that Boswell had been guilty of rebating, or that he had not given his entire time and attention to the service of said company.

We are, however, clearly of the opinion that the provision of his contract which required him to produce $2,900,000 worth of business each year after the first year during the period of the contract was a condition precedent, and upon his failure to comply with this condition he lost all of his rights under the contract ; he breached the contract and was not entitled to recover anything in the action. It is clearly made a condition precedent to the continuance of the contract that Boswell shall produce the amount of insurance stipulated in the contract. Although the court’s action in arresting the case from the jury was predicated, in our opinion, on the wrong grounds, nevertheless, the court’s action in arresting the case from the jury was justified under the state of facts brought out in the trial of the case. It is not material upon what grounds the court’s opinion is based if the conclusion of the court be the correct one.

In this case we have no doubt that Boswell, by reason of the failure to produce the minimum amount of insurance, should have been nonsuited and his action dismissed. It appears from the evidence that both parties to this contract considered themselves that the condition in the contract requiring Boswell to produce the minimum amount of business was a condition precedent, from the fact that the company waived the condition each and every year of Boswell’s failure to produce the required amount of business, excepting the last year, 1911. There was no waiver for the years 1909 and 1910 for the simple reason that Boswell produced more than the minimum amount of business during each of those years.

In the letters which passed between the president of the company and Boswell they both speak of the fact that it was incumbent upon Boswell to produce this minimum amount of business or his rights under the contract would be forfeited.

The record in this case is quite voluminous; indeed, it has seldom happened that a record so large as this one has been presented to this court, and we do not deem it expedient or profitable to comment upon the evidence or to cite numerous authorities in support of the conclusion which we have reached. Many authorities have been cited by counsel on both sides, but we think a reading of the contract, giving to the language the plain meaning which the parties intended it should have shows conclusively that the provision of this contract requiring the production by Boswell of the minimum amount of business specified in the contract was a condition precedent to the continuance of the contract of agency; and Boswell having failed to produce the minimum amount, and the company having failed to waive this condition for the year 1911, either in writing or verbally, Boswell has no right of action, and the judgment of the court below in arresting the case from the jury or in instructing a verdict for the defendant was correct and the judgment will be affirmed.

Jones (E. H.) and Jones (O. B.), JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    NEGLIGENCE — RELEASE—TRIAL
    [Hamilton (1st) Court of Appeals,
    January 8, 1917.]
    Jones, Jones and Gorman, JJ.
    Swain C. Brown v. Kiechler Manufacturing Co.
    1. Determination of Issue of Release from Negligence Pleaded.
    Tlie defendant in an action for injuries having set up a release, the question first to be determined upon trial of the case is as to the voidability of the release, the evidence failing to warrant the court in setting the release aside, the question then arises whether or not it was void ab initio.

    2. Voidability of Release not Established, Issue of Denial of Execution for Jury.
    When the evidence has failed to establish the voidability of a release, but the plaintiff in his reply denies its execution, it becomes the duty of the court to submit to the jury all the evidence, both as to execution of the release and the negligence of the defendant in causing plaintiff’s injuries.
    3. In Absence of Fraud or Mental Incapacity Shown Admission of Signing Bars Recovery.
    An admission by the plaintiff that he signed the release, together with evidence that he received a substantial consideration therefor, bars recovery in the absence of any showing of lack of mental capacity or of fraud in securing his signature thereto.
    4. Directing Verdict for Defendant on Showing that Machinery not Defective as Alleged Proper.
    It further appearing from the evidence that the machine plaintiff was operating at the time he recevied his injury was not defective in tbe particular alleged, but, on tbe contrary, tbat it was in good working order, and tbat bis injury was due to bis attempting to operate it in a manner different from tbat directed by tbe foreman, it was not error to direct tbe jury to return a verdict for tbe defendant on tbe ground, among others, tbat be bad failed to establish any defect in tbe machine of tbe character set out in bis petition.
    Nor is it an abuse of judicial discretion to refuse to permit a plaintiff to amend bis petition, at tbe conclusion of all tbe evidence, by adding the allegation tbat tbe machine was defective in a manner to him unknown.
    5. Refusal to Permit Amendment of Petition by Allegation that Machine was Defective in Manner to Him Unknown not Erroneous.

      Galvin & Bauer, for plaintiff in error.

      Robertson & Buohwalter and Benton 8. Oppenheimer, for defendant in error.
   GORMAN, J.

The plaintiff in error, sought to recover damages for personal injuries claimed to have been sustained while in the employ of the defendant, whereby he lost parts of four fingers on his left hand while working upon a machine for the defendant. In his amended petition plaintiff sets out that on July 21, 1913, he was employed in the machine shop of the defendant, and assigned by the foreman on that day to operate a stamping machine used by the defendant in such shop; that while operating said machine his left hand was caught and four fingers severed therefrom; that the machine was defective and known by the defendant to be so for some time previous to the happening of the accident. The particular defect alleged in the amended petition was that the clutch of the machine failed to act; that the threads of the cog or clutch had become worn from use so that the die which stamped the metal upon which it was impressed, was released by reason of said defective clutch and came into contact with plaintiff’s left hand thereby causing his injuries. Plaintiff further set out the nature and extent of his injuries, the length of time he was confined to the hospital and loss of his wages, and asked $10,000 damages. The plaintiff further set out in his amended petition that on July 31, 1913, ten days after he was injured and while he was in the hospital to be cured of his wounds and previous to the filing of his petition herein, the defendant paid him the sum of $150 and that the plaintiff signed a receipt therefor. He further averred that the defendant now asserts that said paper so signed was a release to the defendant for all liabilities for the injuries sustained by him as aforesaid, but plaintiff says that at the time of signing said paper and receiving such money he was very weak in mind and body, and that he had no one to counsel or advise with respecting the nature and effect of such paper and that the same was signed by him in ignorance of its meaning and effect; that said paper writing was not a release by him, or intended to be such, of the liability of said company to him; and that as soon as he realized the purport and meaning of said paper writing he tendered to the defendant the said sum of $150 so received by him, which was refused. Plaintiff says that he stands ready and willing to pay over the said sum to the defendant upon demand at any time.

The defendant answered the amended petition, and for a second defense set up a certain release which it claims plaintiff signed, in which he released the defendant from any and all liability on account of any negligence which resulted in the injuries of plaintiff by said machine.

To this answer plaintiff filed a reply in which he denied each and every allegation of defendant’s defense, with reference to the release. And further the plaintiff in his reply says that if he signed said document described in said answer, which he denies, he was not aware of its true import and meaning and that by reason of illness and weakness of body and mind he was unable to and did not understand the true nature and purpose of said alleged agreement, but on the contrary was made to believe by defendant and its agents that the $150 paid to him on said occasion was justly due him from insurance carried by the defendant company for his use and benefit.

"When the case was called for trial the judge upon reading the pleadings stated to counsel that there was a question first to be determined by the court without the intervention of a jury; that that was the question of the voidability of the release and that it would have to be first determined before the question of the liability of the defendant company on account of any alleged negligence could be heard.

The court heard the evidence upon the question of the void-ability of the release, and upon the conclusion of all the evidence held that the plaintiff had failed to establish by clear and convincing evidence the voidability of the release.

The trial court held that the question of the voidability of the release was not one to be submitted to a jury, but was one to be determined entirely by the court under the settled rules of equity.

It was held in the case of Perry v. O’Neil, 78 Ohio St. 200, 209, [85 N. E. 41], that:

“If the party suing to recover for personal injuries admits the execution of a release and seeks to avoid it on equitable grounds, he must obtain that relief to maintain his action; when he denies the execution of the release, or that it is his act, on the ground of want of mental capacity at the time he signed it, or that his signature to the release was procured by fraud, such as misreading, the surreptitious substitution of one paper for another, or obtaining by some other trick or device an instrument which he did not intend to give, he may maintain his action without obtaining a decree. In other words, if the release is void he may ignore it in his petition, and if it is plead as a bar in the answer he may in his reply plead the facts that make it void; and if it is not void but only voidable, he must, to maintain his action, obtain its rescission or cancellation. ’ ’

It would appear, therefore, that there was presented to the trial court below, first, the question of the voidability of the release ; and second, under the pleadings as we read them, the question of whether or not the release was void.

Upon the question of the voidability of the release it was the province of the court to hear the evidence and determine whether or not the plaintiff had produced evidence sufficient to warrant the court in setting aside the release and holding it to be voidable. The evidence to establish that fact must be clear and convincing, as has been held by this court and other courts in many cases that might be cited. We are not prepared to say that the trial court erred in holding that the plaintiff failed to establish the voidability of the release by clear and convincing evidence.

After the court had heard the evidence upon the question of the voidability of the release, counsel for defendant moved the court to instruct the jury to return a verdict in favor of the defendant. This motion the court overruled upon the ground that it appeared from the reply of the plaintiff that he denied the execution of the release, and this, if true, would make the release void and not voidable. If the release was void and not voidable, the facts which would make it void should be passed upon by the jury, and it was therefore the duty of the court to submit the question of whether or not the release was void to the jury, together with all the evidence tending to support the plaintiff’s claim as to the negligence of the defendant in causing the plaintiff’s injuries.

The court thereupon submitted to the jury the facts which the plaintiff had adduced in order to establish his ease, and it appeared from the evidence during this trial to the jury that the plaintiff admitted the signing and execution of the release. The trial court was of the opinion that in view of the fact that plaintiff admitted that he signed the release and in the absence of any showing of lack of mental capacity or any fraud in inducing him to sign it, and the fact that he had received the consideration of $150 for the signing of the release, there was nothing for the jury to pass upon as to that question; and that the release, being valid, was a bar to the plaintiff’s right to recover.

Furthermore, it appeared in the evidence that there was no defect in the machine such as was claimed by the plaintiff in his amended petition, as before stated, “that the threads of the cog or clutch had become worn from use so that the die which stamped the metal upon which it was impressed was released because of such defective clutch.” The evidence clearly showed that there were no threads upon the cog and there was no cog at' all upon the machine. There was a clutch, which consisted of a “shoulder” or iron which fit into a corresponding depression in another disk. In other words, there were two disks; upon the one there was a shoulder and upon the other disk there was a depression into which the shoulder fitted exactly, and when these two disks came together and the shoulder was let into the depression the disks were thereby brought into close contact and held together by the shoulder, which caused the machine to revolve.

At the conclusion of all the evidence the court instructed the jury to return a verdict in favor of the defendant, on the grounds, first, that the plaintiff had failed to establish by clear and convincing evidence the voidability of the release; and secondly, that the plaintiff’s own testimony showed the release to be valid and not void; and thirdly, that plaintiff had failed to establish any defect in the machine such as he set out in his amended petition.

While the court was in the act of deciding the motion for an instructed verdict, counsel for plaintiff asked leave to amend his amended petition by setting out that the machine was defective in some way unknown to the plaintiff and that this defect was the cause of plaintiff’s injury. The trial court refused to permit such an amendment to be made, and one of the errors complained of is that there was an abuse of the court’s discretion in refusing the plaintiff leave to amend at the time the request was made.

With the whole record before us, as it was before the trial court, we are not prepared to say that the court abused its discretion in refusing to permit the amendment to be made as requested by plaintiff. If after the entire evidence was offered in the trial of the case plaintiff’s counsel was unable to show in what respect the machine was defective, we think the trial court was justified in refusing to permit him to set up as an amendment to the petition that there was a defect in the machine unknown to the plaintiff. If he did not know of the defect after the entire ease had been heard and after investigation made by him before he began his case, it was not probable that he would be able to show what the defect was if he had been given the opportunity to amend by setting out that there was a defect unknown to him.

Upon reading the entire record we are further of the opinion that the record discloses that the plaintiff brought about his injuries by his own negligence. It appears from the undisputed evidence in the ease that a man named Harris, who was a fellow-workman of the plaintiff, was employed at the time that plaintiff was injured in the operation of the machine on which plaintiff was injured; that he was stamping out what is known as “slats” used in refrigerators. He was putting a crimp, as it were, in each one of these galvanized sheet-iron slats. Brown, who was working at what is known as a shearing machine, desiring to stamp out some slats upon the machine, at which Harris was at work, came along without being ordered so to do by the foreman or superintendent of the company, and said to Harris, who was sitting at the machine operating it, “Let me get at that machine and show you how to operate it. ’ ’ Thereupon Harris arose and Brown began to feed the machine by shoving in slats at the front of the machine instead of pushing them in at the side as Harris had been instructed to do. Harris called his attention to the fact that the foreman had instructed him not to feed the machine that way, but to feed it from the side; but Brown insisted, telling him that the way in which he was feeding the machine was the correct way. And while telling Harris that this was the correct way, the die came down and severed his fingers. It further appears from the undisputed evidence that immediately an engineer and mechanic of defendant’s plant came to the machine and found no defect in the machine whatsoever. It operated all that day, before Brown was hurt, and continued to operate thereafter, without any repairs or alterations being made therein.

Under the circumstances of the ease it appears to the court, even if the release had been voidable or void and so found by the court and jury, nevertheless on the undisputed facts of the case the plaintiff would not be entitled to recover, because the injuries which he suffered were due solely to his own negligence, as there appears to be no evidence of any negligence at all upon the part of the defendant.

Furthermore, it appears from the record that the plaintiff and his wife received the sum of $150 at the time he signed the release. This $150 was in the shape of a cheek which was deposited in bank by the plaintiff and his wife, and the proceeds of the check were used by them; and neither the plaintiff nor any one for him tendered back the $150 up to the time the case was submitted to the court and jury. We think it is elementary that a release can not be avoided unless the consideration received by the person signing the release has been restored and restitution has been made or a tender back of the consideration.

The general rule is well settled that if a person enter into a contract and afterwards seek to avoid the effect of the contract upon any ground that will entitle him to rescind it, he must first restore the consideration, or what he has received or tender it back. He can not have his loaf and eat it. Drohan v. Lake Shore & M. S. Ry. Co. 162 Mass., 435, 437 [38 N. E. 1116]; Manhattan Life Ins. Co. v. Burke, 69 Ohio St. 294 [70 N. E. 74; 100 Am. St. 666].

We find no errors in the record of this case that would warrant the court in reversing the judgment, and the same is therefore affirmed.

Jones (E. H.) and Jones (O. B.), JJ., concur.


author: JONES (E. H.), J.

text:
    COUNTERCLAIM — PLEADING
    [Hamilton (1st) Court of Appeals,
    January 8, 1917.]
    Jones, Jones and Gorman, JJ.
    Murdoch Coal Co. v. Stearns Coal & Lumber Co.
    1. Defense that Account Sued on and Counterclaim Founded on Same Contract not Demurrable.
    Demurrer does not lie to an answer and cross-petition which alleges that the account upon which the claim of the defendant is based arises out of an express contract which is really the subject of plaintiff’s action, with which contract the claims of both the plaintiff and the defendant are connected.
    2. Grievances Occurring Prior to Date of Termination of Contract Render Allegation that Contract was for Definite Period Immaterial.
    Failure to allege that the contract which forms the basis of the action was for a definite period is immaterial, when it clearly appears that it was to remain in force until a certain specified date and that the grievances complained of occurred prior to that date. :

      Healy, Ferris é McAvoy, for plaintiff in error.

      Ernst, Cassatt & Cottle, for defendant in error.
   JONES (E. H.), J.

The question for decision here is one of pleading and cannot be clearly stated without a complete copy of a lengthy answer and counterclaim upon which judgment is asked against plaintiff below, defendant in error here.

A demurrer was sustained below to the answer and cross-petition on the ground that it did not constitute a counterclaim. The court below held that the grievances set out in the answer do not arise “out of the contract or transaction set out in the petition as the foundation of plaintiff’s claim,” and are not “connected with the subject of the action.”

Section 11317 G. C., defines a counterclaim thus:

“A counterclaim is a cause of action existing in favor of a defendant against a plaintiff or another defendant, or both, between whom a several judgment might be had in the action and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.”

The averments of the answer are taken as true for the purposes of this demurrer, and show that the account sued upon by plaintiff was for coal sold and delivered under the same contract which gives rise to the claim of defendant for damages.

The exact language of the cross-petition is:

“Defendant further states that the coal set forth in the account attached to plaintiff’s petition was delivered to the defendant’s customers and others solicited by the defendant through said agent, under the terms of the contract hereinbefore set forth.”

Such an allegation in an alleged counterclaim may not authorize a court in holding that the defendant can thereby read anything into plaintiff’s petition that would determine the nature or “subject of the action” to be other than as shown by the petition itself. But we are of the opinion that where the petition is on an account, a defendant who has a crossclaim or demand may plead by way of answer that both his claim and that of plaintiff rest upon and arise from one and the same agreement; that such agreement underlies and is the basis of all transactions between the parties.

Such, in substance, is the answer in this case, and in this view of the pleading the majority of the court is inclined to hold that that answer shows defendant’s claim to be connected with the subject of the action and therefore a counterclaim within the meaning of the code.

We have little doubt about the correctness of the conclusion we have reached, but if there be doubt it should be resolved in favor of the view taken, for it has long been the fixed policy of our Legislature and our courts to avoid multiplicity of actions.

In Needham v. Pratt, 40 Ohio St. 186, 190, the court say:

“The scope of the counterclaim, and the liberal provisions for joinder of actions, and indeed the entire spirit of the practice act, show that one of its great objects was to enable and require parties, as far as practicable, to submit all tbeir controversies for adjustment in a single action. ’ ’

If tbe positions of the parties here were reversed and the Murdoch Coal Co. as plaintiff has filed a petition for damages, setting forth the same cause of action in the same manner as in its cross-petition contained; and if a cross-petition had been filed by the Stearns C. & L. Co. for coal sold and delivered, with a statement to the same effect as the one above quoted from the answer in this case, namely, that the coal set forth in the account was delivered under the terms of the contract upon which plaintiff’s claim was founded, the situation would be practically the same as under the present pleadings. Under such circumstances we fail to see how any question could be seriously raised as to the soundness of the counterclaim or its compliance with the requirement of the code that it must arise “out of the contract or transaction set forth in the petition as the foundation of the plainiff’s claim or connected with the subject of the action.” In such case both these requisites would be fully met.

The confusion and doubt in the present case arises out of the fact that the action is commenced by the party holding the account. But the answer alleges that the account is based upon and arises out of an express contract which is really “the subject of the action” and with which' both the claim of plaintiff and that of the defendant are connected. As a matter of pleading, this is sufficient, and the demurrer was erroneously sustained.

The point is made in oral argument by counsel for defendant in error that the answer does not allege that either the contract with the agent or that between the parties was for any definite time and for that reason no cause of action is stated in the cross-petition. It is true that the answer contains no statement as to how long these contracts were to run. It does clearly show, however, that they were to remain in force until on and after April 1, 1915. As all of the grievances complained of in the counterclaim of defendant occurred before this date, and as the contract according to the same pleading had been broken and repudiated, the agent seduced and the benefits of his labors secured by plaintiff before said date, the exact duration of the contract is unimportant and statement thereof unnecessary.

The judgment will be reversed and cause remanded for further proceedings.

Jones (O. B.), J., concurs.

Gorman, J., dissenting.

I find myself unable to agree with my associates in the conclusion reached that the cross-petition sets up a good counterclaim in favor of the defendant against the plaintiff.

The averments of the cross-petition purporting to set up a counterclaim disclose that the nature of the cause of action, if any the defendant has against the plaintiff, is one in tort arising out of the wrongful conduct of the plaintiff in enticing away the agent of the defendant. The cross-petition fails to aver that the agent was under contract with the defendant for any definite period of time. In order to create a liability against the plaint-tiff for enticing away the defendant’s servant it would be necessary to allege that the servant was under contract to remain with the defendant and that the plaintiff by enticing him away induced him to violate his contract with the defendant. The averments of the cross-petition, therefore, fail to disclose any ground for a recovery by the defendant against the plaintiff.

Furthermore, it is claimed that the enticing away of the servant is in some way connected with the contract between the parties to this action whereby defendant was to act as a selling agent of the plaintiff for the plaintiff’s coal and was to secure orders for plaintiff’s coal through its agents and employes, of whom the agent enticed away was one. But there is no averment in the cross-petition or alleged counterclaim which discloses that the contract between the parties to this action was in existence or in foree at the time that the defendant’s agent was enticed away by the plaintiff. Manifestly, if the agreement between the parties to this action was not in force at the time the agent was enticed away from the defendant, and if the defendant had no contract between it and its agent for a definite time when the agent was enticed away, no cause of action was stated in favor of the defendant against the plaintiff. And if no cause of action was stated in the cross-petition against the defendant, the defendant has not set up a counterclaim; because it is one of the essential elements of a counterclaim that there must exist a cause of action in favor of the defendant against the plaintiff. If the averments of the cross-petition fail to disclose a cause of action, then it fails to show a counterclaim.

I am further of the opinion that if the cross-petition set out facts sufficient to show a cause of action against the plaintiff for enticing away the defendant’s servant, nevertheless that cause of action is in no way connected with the subject of the action set out in the plaintiff’s petition. That cause of action was to recover for coal on an account which was based upon a contract between the parties. Nor does the alleged cause of action purported to be set out in the cross-petition arise out of this contract between the parties for the sale of the coal, nor is it connected with the transaction of the sale of the coal. The claim which the defendant undertakes to set up against the plaintiff is one purely in tort and not in contract, as was well said in Williams v. Lederer, 43 O. C. C. 172 (18 N. S. 515).

“In an action on an account for goods sold and delivered, the defendant can not set up as a counter-claim a cause of action in tort growing out of the sending of a letter by plaintiff’s attorney to defendant’s employer, whereby the defendant lost his job.”

To my mind this decision and the authorities which support it cited by the court, show conclusively that the defendant had neither a cause of action against the plaintiff which could be set up as a counter-claim, nor is there a cause of action stated in the alleged counter-claim. For these reasons I hold that the judgment of the court below sustaining the demurrer should be affirmed.


author: JONES (O. B.), J.

text:
    CORPORATIONS — CRIMINAL LAW — WORK AND LABOR
    [Hamilton (1st) Court of Appeals,
    April 5, 1915.]
    Jones, Jones and Gorman, JJ.

      Reinhart & Newton Co. v. State of Ohio.
    1. Jurisdiction of Magistrate Obtained through Submission of President of Corporation to Arrest.
    The provision of Sec. 13496 G. C. for the arrest of an accused person is not applicable to a corporation, but when in a prosecution of a corporation the president is arrested and taken before a justice of tbe peace, failure to take advantage of tbe irregularity by objecting to tbe jurisdiction of tbe court amounts to submission to its jurisdiction and a general appearance and. prevents further question as to jurisdiction over the defendant corporation on the ground of improper service.
    2. Candy Corporation not within Exception of “Perishable Goods” under Statute Prohibiting Employment of Females More than Ten Hours in One Day.
    The exception found in the statute prohibiting the employment of females over eighteen years of age more than ten hours in one day, made applicable to “canneries or establishments engaged in preparing for use perishable goods,” does not apply to candy factories.

      Charles B. Wilby, D. J. WorJmm and Thomas E. Larmen, for plaintiff in error.

      Charles F. Eornberger and John A. Deasy, for defendant in error.

       Affirming Reinhart & Newton Co. v. State, 23 Dec. 500.

   JONES (O. B.), J.

The proceedings below originated from a prosecution of plaintiff in error, a corporation, for the violation of Sec. 1008 6. C., in the employment of females over eighteen years of age more than ten hours in one day.

It is claimed that the conviction was erroneous for the reason that the justice of the peace had no jurisdiction of defendant because no provision has been made by statute, when an affidavit charging such an offense is filed, for the service of a warrant upon a corporation. Section 13496 G-. C., provides for the issue of a warrant and the arrest of the accused. It fittingly applies to individuals who can be arrested, but it is inapplicable to a corporation. No other section is pointed out to provide procedure in bringing a corporation defendant before the justice’s court where an affidavit or information is filed. It is suggested that by analogy some such procedure might be had as is provided upon the return of an indictment by Sec. 13607 G. C. In this case a warrant was issued as though for an individual and the president of the corporation was placed under arrest and the warrant returned with the following endorsement :

“I have the body of the within named J. D. Beinhart now in court. Edward Wise, Constable.”

This was undoubtedly an irregularity which might have been taken advantage of, had the defendant not proceeded in such a manner as to fully submit itself to tbe jurisdiction of the court. This it did by filing a motion to quash the information or affidavit, in which it objected not only to the jurisdiction of the court over the person of defendant but also to the sufficiency of the affidavit on the merits of the case. This motion effected a general appearance by the defendant and prevents further question as to the jurisdiction of the magistrate’s court over the defendant corporation on the ground of improper service. A demurrer to the information and affidavit is also fpund among the papers as having been filed before the justice and an entry overruling same, but is not shown in the transcript. It, also, must be held to have effected a general appearance, if it can be now considered.

No question is raised as to the authority of the president or the attorney to represent the defendant corporation, although its counsel argues here that some action authorizing them to act on its behalf should have been shown to have been taken by its board of directors. In the absence of any direct attack on their authority, we may assume that they had as full authority to act before the magistrate as they have in these error proceedings before this court.

Plaintiff in error also urges as a reason for reversal, that the evidence brings it within the exception found in Sec. 1008 G. C., in the following words: “provided, however, that no restriction as to the hours of labor shall apply to canneries or establishments engaged in preparing for use perishable goods. ’ ’

It is conceded that the candy factory of the plaintiff in error is not a cannery, but it is claimed to be an establishment engaged in preparing for use perishable goods. In the broad sense of the word probably all things earthly are ‘ ‘ perishable. ’ ’ Bouvier defines perishable goods as “goods which are lessened in value and become worse by being kept.” The word “perishable” is defined in the Standard dictionary, as, “Liable to perish; subject to destruction or decay; mortal; especially liable to decay speedily; as perishable goods; fruit is perishable.” And both the Standard and Century dictionaries mention as “perishable property” such “property as fish, fruit, etc., from its nature subject to speedy decay or deterioration.”

In Webster v. Peck, 31 Conn., 495, the word “perishable” is defined as meaning “subject to natural and speedy decay.”

In Jolley v. Hardeman, 111 Ga., 749, 751, [36 S. E. 952], the court said:

“Articles of a perishable nature are those which, because of their inherent qualities, rapidly decompose or decay, and in so doing undergo material changes of form and quality which render them unsuitable for use and of little or no value. Such things as fruit, fresh fish and the like may properly be termed articles of a ‘perishable nature’ within the meaning of the above cited section.”

It is urged that defendant’s candy factory should be brought within the exception, because candy can be sold only when the demand exists; that it should be made fresh to meet that demand; that it is better made in cold weather than in warm feather; that the great demand is from Thanksgiving through the holidays; also, that the principal ingredients entering into its manufacture, consisting of sugar, syrups, condensed milk, nuts and other goods, should be put in the class of perishable goods; therefore, the same exception should be extended to a candy factory as is given to a cannery where fresh fruit, fresh fish and other products are preserved by canning.

In the opinion of the court the evidence does not warrant it to hold that the statute was intended to extend its exemption to a candy factory such as that operated by the plaintiff in error.

The purpose of the statute must be considered. It is humanitarian in its nature and is intended to protect the health of work at an occupation which, if allowed continuously for too long a time, would be highly deleterious. It is designed to protect a class of operatives who are to a certain extent at the mercy of their employers and who may not be in a position to assert themselves in insisting upon hours for labor that would be compatible with good health and full efficiency. Such exercise of legislative power is highly commendable and the law should be reasonably construed to effect rather than defeat its purpose. The arguments made as to the peculiar character of the business of this factory should be addressed to the Legislature rather than to the court.

The judgment is affirmed.

Jones (E. H.) and Gorman, JJ., concur.


text:
    SALES — TENDER
    [Hamilton (1st) Court of Appeals,
    December 4, 1916.]
    Jones, Jones and Gorman, JJ.
    Fairbanks, Morse & Co. v. Snook-Veith Lumber Co.
    1. Tender Back of Property Conditionally Sold not Necessary to Relieve Purchaser When Thing Sold Falls to Meet Test.
    Under a conditional sale of machinery which has failed to meet the requirements of the purchaser, the fact that the title has remained in the vendor relieves the purchaser from the necessity of tendering the property back in order to be releasd from making further payments.
    2. Dissatisfaction with Goods Conditionally Sold may be Shown Otherwise Than by Offer to Tender Back.
    Nor will failure to offer to return the machine be construed as a waiver of the right to claim it has not met the required test, where the evidence with reference to the test and the dissatisfaction of the purchaser therewith was such as to satisfy the jury that the stipulated requirements had not been met.

      Otis H. Fisk, for plaintiff in error.

      Cobb, Howard & Bailey and Henry L. Bockel, for defendants in error.
   GORMAN, J.

Tbe ease below was tried to a jury and a verdict rendered in favor of tbe defendant below, and upon tbat verdict judgment was entered. Tbe plaintiff in error, wbo was tbe plaintiff below, asks for a reversal of tbat judgment in tbis proceeding.

It appears from tbe record tbat on or about April 4, 1911, a contract was entered into between tbe parties to tbis proceeding whereby Fairbanks, Morse & Co. sold to tbe Snook-Veitb Lumber Co. a certain mechanical equipment to be used in connection with tbe operation of tbe Snook-Veitb Lumber Co.’s lumber plant in St. Bernard, Ohio, tbe equipment consisting of a 100 horse-power gas engine, cylinder generators and other equipments and attachments. The contract price of tbe purchase was $8,700. Tbe contract was in form a conditional sale, whereby tbe title to tbe property was to remain in Fairbanks, Morse & Co. until tbe price was fully paid.

After tbe engine, generator and appliances were installed the defendants began tbe use thereof, and also began payments on tbe purchase price. By tbe terms of the contract defendant was to pay in installments; and at the time this suit was brought the defendant had paid of the $8,700 all but $2,900.

The defendant company had considerable trouble with the engine by reason of breakages in the cylinder-heads and beaiings and other parts, and complained of these defects from time to time to Fairbanks, Morse & Co. Finally, after much discussion and correspondence between the parties, an agreement was entered into between them about December 15, 1913. This agreement was in the shape of a letter from Fairbanks, Morse & Co. to the Snook-Veith Lumber Co. and the acceptance by the Snook-Veith Lumber Co. of the proposition contained in the letter. That agreement was as follows:

“Fairbanks, Morse & Co. to furnish you with a suitable engineer to operate the 100 H. P. engine of our make at your plant during regular schedule working hours for a period of two months. The Snook-Veith Lumber Co. to pay this engineer at the rate of $20 per week for his time. If at the expiration of the two months the engine has been kept in operation during regular schedule working hours without interruption due to defects, the Snook-Veith Lumber Co. is to pay the balance due on their account at the completion of this two months’ period. If there is interruption in the operation of the engine due to defects, Fairbanks, Morse & Co. are to remove the engine and generator and credit the Snook-Veith Lumber Co. with the balance of their account, thereby closing the entire transaction.”

Upon the acceptance of this proposition by the Snook-Veith Lumber Co. the parties agreed to begin the operation under this test on February 1,1914. An engineer, Mr. Henry, was sent by Fairbanks, Morse & Co. to take charge of the engine and machinery on or about February 1, 1914, and he operated it for a period of two months, at the expiration of which time Fairbanks, Morse & Co. claimed that the conditions of the test had been complied with and that they were entitled to the balance of the purchase price, $2,900. The Snook-Veith Lumber Co. denied that the conditions of the test had been complied with and claimed there had been two or three shut-downs due to defects in the engine, and therefore refused to pay the balance of the account.

The issue in this ease was whether or not the test agreement had been fully carried out by Fairbanks, Morse & Co. Much evidence was produced pro and con, and upon the submission of the case to the jury under the instructions of the court a verdict was returned in favor of the Snook-Veith Lumber Co., defendant below.

It is claimed by plaintiff in error that there was no evidence to support this verdict. An examination of the record satisfies us that there was evidence upon which the jury could reasonably come to the conclusion it did, that there was a failure of the test upon the part of Fairbanks, Morse & Co., and that it was not entitled to recover.

It is also claimed by Fairbanks, Morse & Co. that the Snook-Veith Lumber Co. failed to tender back the engine and appliances at the end of the test period — two months. It was not necessary, in the opinion of the court, that a tender of this engine and machinery should be made to Fairbanks, Morse & Co. by the defendant company, because under the contract the title to this property remained in Fairbanks, Morse & Co., and it was only the possession which it was necessary for them to secure ; and under the contract they had the right to take possession of the machinery at any time, upon the failure of the Snook-Veith. Lumber Co. to pay for the same.

It is claimed, however, that the failure to tender back this property indicates that the Snook-Veith Lumber Co. waived its right to claim that the test had not been complied with. There is evidence tending to show that the president of the Snook-Veith Lumber Co. was not satisfied with the test and notified the representatives of Fairbanks, Morse & Co. that the test had not been fulfilled and that the engine was not satisfactory and that it had not operated, without interruption due to defects, for a period of two months. All these questions of fact were for the jury under proper instructions. It was their province to pass upon the evidence, weigh the same, and to pass upon the credibility of the witnesses and determine what weight should be given to the testimony of each witness. We are not prepared to say that the verdict is so manifestly against the weight of the evidence as to warrant this court in setting aside the verdict of the jury and the judgment of the court.

Upon a review of the whole case we find no error in the record to warrant this court in setting aside the judgment, and the same is therefore affirmed.

Jones (E. H.) and Jones (O. B.), JJ., concur.


author: JONES (0. B.), J.

text:
    SALES
    [Hamilton (1st) Court of Appeals,
    November 27, 1916.]
    Jones, Jones and Gorman, JJ.
    Leslie Johns v. Charles H. Hopper.
    Effect of Absence of Showing of Bad Faith or Belief in Truth of Representations not Justified.
    Liability on the part of an agent for damages on account of false representations as to the value of a thing sold does not arise in the absence of a showing of bad faith, or that the belief of the defendant as to the truth of the representations was not justified by the facts.

      J ohn Nichols and Frank P. Shaw, for plaintiff in error.

      Charles F. Malsbary and Frank F. Wood, for defendant.
   JONES (0. B.), J.

This was an action for damages for false representations in the sale of stock of the Williams Shoe Co. The defendant sold the stock as an agent of the Williams Shoe Co., and shortly after the plaintiff had paid for the stock and the certificates had been issued but before he had received them, that company was thrown into the hands of receivers, and the stock proved to be worthless.

Plaintiff sought to rescind the sale and to recover the amount which he had paid for the stock. The Williams Shoe Co. was not made a party, and the ease proceeded to trial before a jury as an action for money. The trial resulted in a verdict for defendant, on which judgment was entered. Error is prosecuted in this case to reverse that judgment and for a new trial.

It is contended that the trial court erred in refusing to give a special charge requested by plaintiff before argument, as follows:

“If you find the plaintiff was induced to purchase the stock, by means of representations made by the defendant to plaintiff, however honestly made, and the representations so made by the defendant were material and substantial, affecting the identity, value or character of the stock, that the plaintiff had a right to rely upon them, and that he was induced by them to make the purchase, and that said representations were false, although at the time they were made by the defendant he believed them to be true, you will find for the plaintiff.”

This charge is claimed to be taken almost verbatim from the opinion of the Supreme Court in Mulvey v. King, 39 Ohio St. 491, counsel for defendant in error in their brief quoting the language of the opinion, beginning in the last paragraph on page 494. But in their quotation they omit the first sentence of that paragraph, which states:

“It may be considered as well settled in this state, by the cases above cited, that an action for damages caused by misrepresentation can not ordinarily be maintained, without proof of actual fraud, or such gross negligence as amounts to fraud. ’ ’

The special charge as drawn fails, to include the element that the defendant, who it is claimed made the false representation, is claiming the benefit of the contract. In the case of Mulvey v. King, supra, suit was brought by a vendor of real estate against his vendee, upon a promissory note which was executed as part payment of the consideration of the purchase, and the defendant was there permitted as against that claim to set up the false representation of fact affecting the identity and value of the real estate.

In this case the suit is not against a vendor of stock who is seeking to retain purchase money, but is against an agent who had no interest in the sale other than his salary as such agent. It was admitted in the trial of the case by counsel for plaintiff, that defendant did not wantonly and wilfully make a false statement. And even if that admission is not- to be considered, the question of his good faith was a fact submitted to the jury, and their finding was in favor of defendant.

If the representations of defendant should be treated as amounting to a warranty of the character of the stock, it would he merely the warranty of an agent for his principal, and the right of action on such warranty would be against the principal and not against the agent.

This special charge would impose upon the defendant an , absolute liability irrespective of his good faith, even though his belief in tbe truth of the representations made by him were justified by the facts. This would be contrary to the doctrine announced in Taylor v. Leith, 26 Ohio St. 428.

The case of Gaisser v. Hansen, recently decided by this court, referred to in the argument of counsel, was one in which the purchaser of real estate paid the purchase price in part by the transfer of certain bank stock, which he represented to be of a particular value when in fact it was almost worthless, although the vendee had not knowledge of such fact at the time of the purchase. This court held that under the evidence the vendor was entitled to rely upon the representations of the vendee as to the value of the stock, and he would not be permitted under the circumstances to retain the real estate without making good the entire purchase price which the vendor had not received because of such representation. That case therefore does not control the case at bar and is not in conflict with the rulings of the trial court.

In our opinion, therefore, it was not error in the trial court to refuse this special charge.

Criticisms are made as to several portions of the general charge of the court, but considering this charge as an entirety we are of the opinion that the law of the ease was fairly stated, and we find no prejudicial error in it.

It is further claimed by plaintiff in error that the court erred in refusing to admit the testimony of a witness as to representations made to him and other persons by defendant similar to those claimed to have been made to the plaintiff. Under the law as laid down in United States Life Ins. Co. v. Wright, 33 Ohio St. 533, we think the court was right in rejecting this evidence. It would only be admissible, if at all, to show that the defendant knew the statements to be false, and as there is no evidence tending to show such knowledge — and in fact the plaintiff in the trial disclaims making such a charge against defendant— we find no error in the refusal to admit such evidence.

A careful consideration of the entire record fails to reveal any error to the prejudice of plaintiff in error, and the judgment will be affirmed.

Jones (E. H.) and. Gorman, JJ., concur.


text:
    CORPORATIONS
    [Hamilton (1st) Court of Appeals,
    February 5, 1917.]
    Jones, Jones and Gorman, JJ.

      John N. Russell, Admr. v. Fourth National Bank.
    Entries in Stock Ledger Showing Transfer of Original Certificate without Surrender or Acquiescence by Original Holder, Inadmissible.
    Entries in a stock ledger showing the transfer of certain stock of the corporation, represented by a certificate which was not surrendered, are selfserving declarations and are not admissible in an action to compel the issuance of a new certificate to the administrator of the holder of the unsurrendered certificate, in the absence of evidence that the original owner acquiesced in or had knowledge of the making of said entries.

      Tuttle & Boss, for plaintiff in error.

      Charles B. Wilby, William Worthington, Clark Wilby, for defendant in error.

       Motion to certify overruled by the Supreme Court April 3, 1917.

   GORMAN, J.

This ease is here for the second time on error to the judgment of the superior court of Cincinnati. The case was first tried before Judge Pugh and judgment rendered by him in favor of the defendant. See Russell v. Fourth Nat. Bank, 27 Dec. 590 (15 N. S. 184), which was reversed by the judges of the eighth district court of appeals, sitting in this county, in Russell v. Fourth Nat. Bank, 37 O. C.. C. 17 (23 N. S. 1). The case was remanded to the superior court for further proceedings, and was tried before Judge Stanley Merrell, and judgment was again rendered in favor of the defendant. See Russell v. Fourth Nat. Bank, 27 Dec. 543 (18 N. S. 585). Plaintiff in error is now here asking for a reversal of that judgment.

The facts necessary to be considered are set out in the reported decisions above referred to, and it will not be necessary for this court to restate them in order to determine whether the judgment should be reversed or affirmed.

The judges of the eighth district court of appeals held that the superior court committed error in admitting in evidence against the plaintiff in error books of entry of the Fourth National Bank tending to show a transfer of the stock of the decedent of plaintiff in error, to one W. F. Colburn; and further held that the. entire structure of the defense rested upon these book entries, and that in view of the fact that error was committed in admitting these entries, the entire structure of the defense of the defendant fell.

Upon a retrial of the case before the superior court, these book entries which the court of appeals in the former 'decision-held were inadmissible, were again admitted in evidence. The theory upon which they were admitted was, that in the trial before Judge Merrell it was shown that the entries were in the handwriting of the former cashier of the Fourth National Bank, and that in the regular course of business it was the duty of the cashier of the bank, in 1867, to make entries in the stock ledger. It was further shown that the cashier was dead, and his handwriting in the entries in the stock ledger was identified by the present cashier, Mr. Bartlett. It was further claimed in the second trial that these entries in the stock ledger of the Fourth National Bank were admissible in evidence under what is known as “the shop book rule,” and that this claim was not put forth at the first trial nor did the court of appeals, in reversing the case, base its opinion on the fact that the book entries were inadmissible under the “shop book rule.”

But it was not shown in evidence that Russell, the decedent, had any knowledge of these entries being made in the stock ledger of the Fourth National Bank, whereby his stock purported to be transferred from him to W. F. Colburn; nor was it shown in evidence that he had ever acquiesced in these entries. The court of appeals in its former decision held that these entries were mere self-serving declarations, and it appears to us that they have the same character now as they had before it was shown who made the entries and when they were made. It is not shown that any actual transactions took place such as these entries would purport to show; the evidence does not disclose under what circumstances these entries were made in this ledger; the evidence does not show upon what authority or by whose authority they were made, so far as Russell or Colburn is concerned. It therefore apears to us that in the absence of such a showing these entries were still — as they were when the court of appeals passed upon the question before — self-serving declarations of the Fourth National Bank and inadmissible against Russell’s administrator.

The “shop book rule” -which was invoked by Judge Merrell in admitting these book entries is a rule that books of account of merchants, shopkeepers and others who record transactions of purchases, sales or services or labor are admissible in evidence in controversies between the parties, when it is shown that the entries were made in the usual course of business, either by the parties themselves or by their clerks under their direction, and when the handwriting is established under oath, and that the entries were made contemporaneous with the transactions. We do not understand that this rule extends beyond transactions of purchase and sale of goods or merchandise, or the employment of labor and services rendered; but in some cases the rule does apply to bank transactions between the customers of the bank and the bank, where there have been deposits of money and withdrawals.

The only case cited by the court below in support of the admission of these book entries in the stock ledger of the defendant in error is that of Evans v. Lake, referred to in Buller’s Nisi Prius, 282. This book was published in 1806. It is “An Introduction to the Law Relative to Trials at Nisi Prius, published by Francis Buller, Esq., of the Middle Temple. ’ ’ It does not purport to give a report of cases cited, but merely to give a reference to the principles decided. The case cited by the learned judge in the trial below, at page 282 of this book, is referred to by the author as having been decided on May 3,1738. In that case the author says, there was admitted in evidence on behalf of the defendant and against the plaintiff Lake, a book belonging to the defendant Sir Stephen Evans, and an entry showing payment of money made by him, which entry was in the handwriting of his clerk, Jeremy Thomas, who was proved to be dead. The court allowed this entry to be offered in evidence upon the proof of the facts above stated. The controversy in that case was between Mr. Lake and Sir Stephen Evans, and the book in which the entry was made belonged to one of the parties, Sir Stephen Evans.

It appears to us that the rule laid down in that case would not justify the admission of the stock ledger entries of the Fourth National Bank in the case at bar. The stock ledger in the case at bar does not undertake to record the transaction between Russell and Colburn. I-f it were the book of Mr. Col-burn showing the payment to Russell for his stock, we have no doubt that under the case cited — Evans v. Lake — the entries might be admissible on showing that Mr. Colburn made the entries and that he is now dead. Or, if it were the account book of Mr. Russell, showing the sale of the stock, and the entry was shown to be that of Mr. Russell or his clerk, and that the person who made the entry was now dead, there would be no doubt but that the entry would be admissible. But to take the books of a third person not a party to the transaction and permit them to be offered in evidence, without any evidence of knowledge on the part of Mr. Russell or any acquiescence' on his part, and without a showing of the circumstances under which the entries were made, or by whose or what authority they were made — that is, whether by the authority of Russell or of Col-burn, the parties to the transaction — it appears to us would be stretching the doubtful rule laid down in the case of Evans v. Lake. And so we have reached the conclusion that notwithstanding the additional evidence that was offered in the second trial of this case, the entries in the stock ledger were inadmissible against the administrator of J. N. Russell, and that the court below erred in admitting this record; and for this reason the judgment of the superior court must be reversed.

It is further claimed by the plaintiff in error that the court below erred in admitting evidence tending to show the financial condition of J. N. Russell from 1867 down to the time of his death in 1895, and in showing what property he had and what he did not have. We think this evidence was admissible for the purpose of showing the probability or improbability of Russell having a certificate of stock in his possession worth upon its face $3,000, and failing to collect the dividends for a period of twenty-eight years, and failing to realize on this stock. But we do not think that such evidence would have very great weight in overturning the rights of the plaintiff in error under a certificate of stock solemnly issued by the Fourth National Bank in 1865, found among the assets of the deceased, J. N. Russell, upon his death, which certificate is admitted by the Fourth National Bank to be genuine.

It is urged by counsel for defendant in error that the title to the stock in the Fourth National Bank does not have to be evidenced by a certificate, and that the transfer of the stock and the title thereof is really made upon the books of the bank, and that for that reason the entries upon the books of the bank showing the transfer of stock are admissible in the same sense or to the same extent that the record of deeds is admissible to show the transfer of title to real estate. It is true that formerly many corporations issued no certificates of stock, but showed upon their books the aliquot part of the capital stock held by the stockholders of the corporation, and frequently mere receipts were given to stockholders upon the payment of their stock, and the amount of stock which they owned in the corporation was determinable only by the books of the company.

But in this case no such practice was pursued. Certificates of stock were issued, and no doubt a stock certificate book was used by the bank and stubs remained in the hands of the bank showing to whom the stock certificates were issued. If there had been no stock certificates issued by the bank it may be that the books would be admissible for the purpose of showing who were the stockholders and how much they owed, inasmuch as that might be the only method of showing who were the stockholders and the amount of their holdings.

It is further urged by counsel for defendant in error that under Sec. 5210 U. S. R. S., this stock ledger of the Fourth National Bank is a qi«m-public record, because that section requires that the president and cashier of every national bank shall keep a full and correct list of the names and residences of all the shareholders in the association, and the number of shares held by each. But it has been held in several decisions that the purpose of this section is merely to give the public, dealing with the bank, a knowledge of the names of its stockholders, and to what extent they might be relied on to give safety to those dealing with the bank. Pauly v. State Loan & Tr. Co., 165 U. S. 606 [41 L. Ed. 844]; Waite v. Dowley, 94 U. S., 527 [24 L. Ed. 181]; Carey v. Williams, 79 Fed., 906; Foote v. Anderson, 123 Fed., 659.

Counsel for plaintiff in error asks this court to render the judgment which they claim the court below should have rendered upon the hearing of the case, to-wit, a judgment in favor of the plaintiff, directing the officers of the Fourth National Bank to transfer to the plaintiff in error this stock or, in lieu thereof, to account to him for the value of the stock and the dividends which have not been paid to Russell or his administrator.

This court is of the opinion that it is the duty of the court below upon the hearing of the evidence, to enter such a judgment as the evidence warrants; and this will probably involve the question of an accounting, and evidence may have to be taken upon that branch of the case. Evidence may also have to be taken as to the value of this stock as of the time it was alleged to have been converted, or at the time of the trial. Evidence may also have to be taken as to other questions which we do not now perhaps foresee; and for this reason we deem it proper to reverse this judgment and remand the cause to the superior court for such proceedings as are authorized by law.

Jones (E. H.) and Jones (O. B.), JJ., concur.


author: POWELL, J.

text:
    DESCENT AND DISTRIBUTION
    [Licking (5th) Court of Appeals,
    October Term, 1916.]
    Powell, Shields and Houck, JJ.
    Edward T. Koch et al v. Lindsay H. Bounds et al.
    Devise by Widow does not Pass Title to Lands Inherited by Former Husband Intestate.
    That portion of lands inherited during life by a deceased husband continues to be ancestral add title thereto passes to his heirs, notwithstanding his widow relict devises same with other lands obtained by her former husband by purchase from coheirs to her second husband and his heirs.

      Stasel & Cornell, for plaintiffs in error.

      Kibler & Kibler, for defendants in error.
   POWELL, J.

This is a suit in partition, and the lands to be partitioned are described specifically in the answer and cross-petition of the defendant, Lindsay H. Bounds. The single question presented for adjudication is whether or not the one undivided fifth part of said lands that belonged to Robert Bounds, deceased, came to the possession and ownership of the said Robert Bounds by descent or by purchase.

It is claimed on the part of the plaintiffs in error that Robert Bounds’ original title to the undivided fifth part of said lands was a title by purchase, while it is claimed by defendants in error that said undivided fifth owned by Robert Bounds was a title by descent from William Bounds, his father.

William Bounds became the owner of the certificate of entry of said lands in about 1820, the said certificate having been issued in 1816. William Bounds assigned the certificate of entry to one Edwards as security for a debt owing by him to the said Edwards. Afterward the certificate was assigned by Edwards and came into the hands of one Samuel Stover. At the time of the assignment by Bounds to Edwards, a contract was entered into between them, by which Bounds reserved to himself the right to redeem said lands within a time named and upon condition that the debt due to Edwards should be paid.

Stover, when be became the owner of said certificate, paid the balance of the purchase price due upon the same, and also paid the claim for which said certificate had been assigned. He then procured a patent to issue from the general government to him for said lands. After obtaining the patent in 1824 or 1825, he brought an action of ejectment and recovered possession of said lands from Bounds.

Bounds remained in the neighborhood for about a year after Stover had recovered possession and then disappeared, and, so far as the record discloses, was never afterward heard from.

Stover continued in possession of the lands covered by said patent until his own death in 1835. Shortly afterward the heirs at law of William Bounds began suit against the heirs at law of Samuel Stover to redeem said lands. Afterward, by judgment of the Supreme Court of the state of Ohio, a decree was entered, authorizing such redemption and ordering conveyance of said lands by the heirs of Samuel Stover, deceased, to the heirs of William Bounds, deceased, of whom the said Robert Bounds was one. Bounds v. Stover, 1 Ohio St., 107.

Robert Bounds, some time after said decree was entered, went to the state of California and remained there until about the year 1856, when he returned and bought the interests in said lands of his brothers and sisters, so that there is no question that his title to four-fifths of the land sought to be partitioned is a title by purchase; the other one-fifth is claimed to have come to him by descent from his father, William Bounds.

Some years afterward Robert Bounds married and on his death without issue surviving him, his widow, Margaret Bounds, became the owner in fee by virtue of the statutes of descent then in force, of four-fifths of said lands, with a life estate in the other fifth that had originally belonged to her said husband, if it was an estate by inheritance; and if it was an estate by purchase, she was. also the owner of said one-fifth, and this is the question presented to us for solution.

It arises in this way: Margaret Bormds, after the death of Robert Bounds, was remarried to William H. Koch, who survived her. She left a will devising all her interest in said lands to her said husband, who was the original plaintiff in this action, and who died during the pendency of the same. The action was revived in the name of his legal representatives, and they are the plaintiffs in error in this court. The defendants in error are the heirs at law of Robert Bounds, so that the contention hero is between the respective heirs at law of the two husbands of Margaret Bounds, deceased.

Bounds v. Stover, Supra, held that the assignment of the certificate to Edwards with a contract reserving the right to redeem said lands on the payment of the amount due to Edwards, constituted a mortgage on the part of Bounds to Edwards, and the court there say that ‘ ‘ once a mortgage, always a mortgage. ’ ’ The court also held that the interest or title of William Bounds in said lands was a superior title to that of Samuel Stover, although Stover had obtained the patent for the same from the United States government; and the court entered a decree authorizing the heirs of Bounds to redeem said lands from the heirs of Stover.

It is also there held that because Stover took the assignment of said certificate of entry with full knowledge of the rights of Bounds in said lands under his contract with Edwards, he took such title as he could obtain with a right of redemption remaining in Bounds, that could be exercised any time within the bar of the statute of limitations; or, in other words, the certificate of entry carried with it to Bounds a title to said lands, though not a complete title; and the court recognizes that such title would descend according to law by entering a decree in favor of the heirs of Bounds against the heirs of Stover. Such title, then, as William Bounds possessed, was a title that could be redeemed by his heirs at law by virtue of the statute of descent and distribution.

It was further held that Stover did not obtain a clear and indefeasible title through Edwards by the assignment of said certificate and the procuring of said patent for said lands.

The court held, in the case cited, that the certificate of entry, while it carried incomplete title to the owner of the same, gave the party to whom it belonged the right to enter and hold the land covered by such certificate; it also gave him the right to obtain a complete legal title to the exclusion of all other persons, by the payment of the balance of the purchase price; and that the same was a title to the lands, although not a perfect one.

It follows that the heirs of Bounds obtained title by descent from William Bounds, with a right to make their title complete by the performance of the conditions of such certificate of entry and the payment of any obligations for which said certificate had been assigned, and that when their title became perfected, it became a perfect title by descent and not by purchase.

The court has arrived at the conclusion that Bobert Bounds inherited one-fifth of the lands described in the answer and cross-petition from his father, William Bounds, deceased, and that his title to said one-fifth is an ancestral title, and not one by purchase. This having been the holding of the court below, it follows that the judgment of that court must be affirmed.

Judgment affirmed.

Shields and Houck, JJ., concur.


author: FERNEDING, J.

text:
    RAILROADS
    [Morrow (2nd) Court of Appeals,
    January 22, 1917.]
    Ferneding, Kunkle and Allread, JJ., of second district, sitting by designation.

      J. C. Williams, Admr. v. Cleveland, C. C. & St. L. Ry.
    Guest of Driver of Milk Wagon Failing to Direct Driver's Attention to Indications of Approaching Train, Denied Recovery.
    Where the decedent, who was riding in a milk wagon as it approached a railway crossing, did not direct the attention of the driver to smoke and steam from a passing train, which obscured the view of the tracks, and did not request him to wait until it had cleared away before attempting to cross, it is not error to take from the jury an action on account of the death of said decedent from the striking of the wagon by a train, the approach of which was obscured by said smoke and steam.

      T. B. Mateer and J. G. Williamson, for plaintiff in error.

      Benjamin Olds and McBride & Wolfe, for defendant in error.

       Motion to dismiss petition in error, alleging a constitutional question, granted by Supreme Court, May 29, 1917.

   FERNEDING, J.

This was an action by the administrator of Bertha E. Fields, deceased, to recover for wrongful death. The trial court instructed a verdict for the defendant below at the conclusion of the plaintiff’s testimony, and the plaintiff brings the case to this court on error.

The testimony in brief shows that the decedent, in company with Roy Cornwall, were traveling along the highway in a milk wagon drawn by a team of mules. Roy Cornwall was driving and the decedent was sitting on the floor of the wagon, with her vision somewhat obscured by the wagon itself.

They stopped about ten feet from the railroad track to permit a freight train to pass; thereupon the team was started, but the vision of the track was obscured by the steam and smoke of the train which had just passed. Cornwall claims to have looked for an approaching train, but admits he was unable to see any distance because of the smoke and steam. It is not very clear whether the decedent looked or listened for an approaching train, but it is clear that she could have seen the smoke and steam had she looked and must therefore be charged with knowledge of the danger in going upon the track without waiting for the steam and smoke to clear away.

"We think the case of the Baltimore & Ohio Ry. v. McClellan, 69 Ohio St. 142 [63 N. E. 816], is decisive of this feature of the case. It is claimed, however, that the decedent being a guest was not charged with the negligence of the driver. Still, under the case of Toledo Ry. & L. Co. v. Mayers, 93 Ohio St. 304 [112 N. E. 1014], relied upon by counsel for plaintiff in error, she was bound to use due care, and such due care would include the duty of observing the dangerous condition of the crossing immediately in front of the wagon in which she was riding and charge upon her the duty of notifying the driver and requesting him to wait until the smoke and steam cleared away. This, the testimony shows, she did not do and was therefore guilty of negligence.

In addition, it fairly appears from the petition that Cornwall, the driver, and the decedent were engaged jointly in the particular enterprise at the time the fatal accident occurred. At least, the petition does not show that the decedent was merely a guest and without responsibility or control over the driving of the team.

Judgment affirmed.

Kunkle and Allread, JJ., concur.


author: KINKADE, J.

text:
    INJUNCTION — TAXES
    [Wood (6th) Court of Appeals,
    October 22, 1913.]
    Kinkade, Rickards and Chittenden, JJ.
    Isaac Shuler v. C. E. Stinebaugh, Aud.
    Petition to Enjoin Collection of Taxes not Subject to Motion to Strike out all Parties Similarly Situated.
    Suit to enjoin the county auditor from placing on the duplicate . taxes against the lands of the plaintiff and others similarly situated who are named in the petition, is not open to a motion to strike out all parts relative to parties other than the plaihtiff, where the proposed action of the auditor would affect the plaintiff in the same manner as each of the classes of owners for whom he is assuming to act.

      F. P. Beigle, for plaintiff.

      C. 8. Hatfield and E. M. Fries, for defendant.
   KINKADE, J.

This action was brought in the court of common pleas to restrain the defendant, the auditor of Wood county, by injunction from placing upon the tax duplicate of Wood county certain taxes against the lands of plaintiff and some 208 other parties represented by plaintiff, and similarly situated, as the result of an alleged illegal order made by the board of equalization.

The defendant moved the court to strike out all parts of the petition relative to parties other than the plaintiff. This motion was overruled by the common pleas judge and, thereupon, in order that a final judgment might be entered in the case, a demurrer was filed by the' defendant, which was overruled by the court of common pleas, and the defendant not desiring to plead further, judgment was entered accordingly and the ease appealed here.

The motion to strike from the petition is renewed here and is the sole question in issue, the defendant conceding that in so far at least as the plaintiff is concerned individually the petition does state a cause of action.

It is alleged that three classes of owners are affected by the alleged illegal order complained of, and the plaintiff by the allegations of his petition shows the order to be effective as to him in each of the three classes.

It is contended on behalf of the defendant that, even though it should be conceded the order complained of was illegal, that notwithstanding this the plaintiff and the parties whom he seeks to represent in this action could not join in one suit and avoid the effect of the order, and that hence one can not appeal for all under Sec. 11257 6. C.

It is said in behalf of this position that, inasmuch as the effect upon the different defendants is different arising out of this alleged illegal order, therefore their rights are so distinct and separate as that they may not join in a representative suit such as this.

We are of the opinion that the case cited by counsel for the defendant, Quinlan v. Myers, 29 Ohio St. 500, does not sustain the proposition.

We think the law of Ohio upon this subject is clearly stated in paragraph nine of the syllabus in tbe ease of Upington v. Oviatt, 24 Ohio St. 232, which reads as follows:

“Two or more of the several owners of lots assessed for street improvement claiming the assessment to be for the same reason invalid as to each, may properly join in an action to restrain the collection of the assessment.
‘ ‘When the parties thus similarly interested in the question are numerous, one may sue on behalf of himself and all the others whom he is authorized to represent and who might otherwise rightfully join in the action.”

The motion to strike from the petition will be overruled, and to preserve the question presented by the demurrer, the demurrer will be overruled and the defendant will be granted leave to plead further, if he so desires.

Chittenden and Richards, JJ., concur.


author: BY THE COURT.

text:
    AUTOMOBILES
    [Crawford (4th) Court of Appeals,
    December 1, 1916.]
    Crow, Kinder and Robinson, JJ.
    Queenie Place v. Lewis H. Berry.
    Father of Daughter in Charge of Automobile which Collided with Another Automobile cannot Escape Liability on Ground that Escort . was Driving.
    A young lady accompanied by her escort, both of whom were minors, rode to the next county seat in an automobile belonging to the girl’s father. For a time the car was run by her, but during the journey its operation was surrendered by her to the young man. As they approached their destination their machine collided with another automobile, causing injury to the plaintiff below. The mechanism of the car was such that either of its occupants could have stopped it ‘without changing position, had ordinary care been exercised. The jury found in favor of the young man and assessed damages against the young lady. Held: That while it would have been competent for the jury to have found the couple were engaged in a joint enterprise, yet the theory that, at the time of the accident, the young man was operating the car as the agent of his companion is tenable, and the rule that all reasonable presumptions should be indulged in favor of the validity of the judgment requires that it be affirmed.

      II. R. Schuler and C. E. McBride, for plaintiff in error.

      William C. Beer, for defendant.
   BY THE COURT.

Plaintiff’s action in the court of common pleas, which resulted in a verdict and judgment thereon in the amount of $1,-500, was for personal injuries sustained by him from contact with an automobile occupied at the time by plaintiff in error, Queenie Place, who Avas a defendant below with Bert E. Place, who was her father, and one Paul D. Sweney.

In an early stage of the action it was dismissed as to the defendant Bert E. Place.

On the trial, verdict and judgment were rendered in favor of Paul D. Sweney.

The undisputed eAÚdenee shows that Queenie Place and Paul D. Sweney, both of whom were minors, started in an automobile owned by the young lady’s father, the said Bert E. Place, for a drive which commenced in Galion. Miss Place was operating, the car at the time they started from Galion, but on the trip to Bucyrus, where plaintiff’s injuries occurred, she gave over the operation of the ear to Mr. Sweney, who continued to drive until they reached the latter city and until after plaintiff sustained his injuries. At a point in Bucyrus just off the public square the car struck plaintiff below and carried him some distance until it collided with the rear of another automobile standing ahead of it in the street.

The evidence introduced in behalf of the plaintiff below tends to show that the position of Miss Place at the side of Mr. Sweney was such that by the exercise of ordinary care she could, because of the mechanism Avith which the car was provided, have caused it to stop in time to have avoided colliding with the standing car.

Plaintiff’s evidence also tends to shoAv that by the exercise of due care on the part of Mr. Sweney, he could have stopped the car before the collision, not only by turning the switch, but also by the application of a brake, neither of which he attempted to do.

While the theory of counsel on behalf of defendant in error is that the liability, if any, of Queenie Place arose from her negligence in failing to personally exercise the claimed requisite care to avoid the injury to plaintiff below, and while that contention is not without support, the province of the court in reviewing the case is, of course, not limited to such consideration.

All reasonable presumptions in favor of the judgment's validity must be indulged, and if upon any proper view the record is in such state as to sustain the verdict and judgment, the latter must be affirmed.

Under all the circumstances, Miss Place and Mr. Sweney could, by the jury have been found to have been engaged in a joint enterprise, in which status each would be answerable for the tortious acts of the other. Sherman & Redfield, Law of Negligence, Sixth Edition, page 317; 57 L. R. A. (N. S.), 436-439, and eases cited in note.

Another view of the transaction is worthy of consideration, namely, that the jury may have concluded that Mr. Sweney was the agent of Miss Place at the time of the injury. And it can not be said that such conclusion is entirely without warrant. Assuming Miss Place to have been in rightful possession of the car, Mr. Sweney was either her agent in its operation or voluntarily assumed with her the management of the car, or wholly superseded her in its operation. If the latter, then the contention of the plaintiff that she was personally negligent when she saw the position of peril of plaintiff below, which his evidence tended to show she saw or could have seen, and failed to exercise due care, would be correct.

The consistent view, inasmuch as the jury found in favor of Mr. Sweney, is that they regarded him as the agent of Miss Place at the time plaintiff received his injuries.

Counsel for plaintiff in error argue that, upon that theory, the judgment should be reversed because Mr. Sweney was not a proper party.

So far as that contention affects plaintiff below it is a sufficient answer, that she can not in the first instance raise it in the reviewing court. The proper practice is that employed in the case of French v. Central Const. Co., 76 Ohio St. 509 [81 N. E. 751; 12 L. R. A. (N. S.) 669].

Numerous reasons are urged for reversal of the judgment. All have been examined, and none found of such character as to afford that relief to plaintiff in error.

The charge is not wholly free from inaccuracies. Much might have been omitted, and the jury left adequately informed of the issues and their duty in respect to them. But the charge does sufficiently set forth the various material questions for the jury’s determination, and does also adequately inform them of the rights and liabilities of the parties to the suit, and does fully acquaint them respecting their province. Possessing these attributes, and containing nothing prejudicially erroneous, the charge can not be deemed an improper one.

If the duty rested on this court to determine the facts, it might not have done so as did the jury. But the court’s duty is to review and to reverse only where there is error substantially affecting a right of the complaining party. The record is not in that condition, and consequently the judgment must be affirmed.

Crow, Kinder and Robinson, JJ., concur.