author: HENBY, J.

text:
    CONTRACTS — CORPORATIONS—LIMITATIONS.
    [Cuyahoga (8th) Circuit Court,
    May 31, 1910.]
    Marvin, Winch and Henry, JJ.

      Western Strawboard Co. v. Variety Iron Works Co.
    1. Limitations Run from Completion of Contract by Guarantor not from Default.
    In an action against a guarantor of a contract for the construction of a mill or plant which provides that in the event the contractor fails to complete the plant within a certain time, the plaintiff may complete it and be repaid its expenditures in that behalf, where the contractor fails and the plaintiff elects to proceed and complete the plant, the statute of limitations begins to run against the guarantor for money so expended from the date of the completion by the plaintiff of the plant and not from the date of the default of the contractor.
    2. Invalidity of Corporate Guaranty can not be Questioned after Contract Completed.
    A corporate contract, such as one of guaranty, made without legislative sanction, and hence -ultra vires, but neither malum in se nor expressly prohibited, is not necessarily illegal, so as to preclude action upon it, and if it is fully performed on the part either of the corporation or of the other contracting party, neither will be permitted to insist that the contract so performed one party is outside the corporate power of- the corporation.

      Error.

      Henderson, Quail & Siddall, for plaintiff in error.

      Cook, McGowan & Foote, for defendant in error.

      Affirmed, no op., Variety Iron Works v. Western Strawboard Co., 87 Ohio St. 478.

   HENBY, J.

The sole question here is upon the sufficiency of the amended petition below, demurrer to which was there sustained because the cause of action was barred by the fifteen year statute of limitation.

The action was brought upon the defendant’s written guaranty to the plaintiff of the full performance by the Central Paper & Fiber Co. of the latter’s agreement with plaintiff’s assignor to construct a certain strawboard mill or plant, which agreement, as amended, stipulated that the fiber company would complete said plant within thirty days from and after September 6, 1890, “and that in the event that it failed so to complete said plant, the plaintiff should have the right to complete the same in accordance with the terms of the said contract and to be repaid by said the Central Paper & Fiber Co. the expense so incurred.”

The amended petition alleges further that:

“After the execution and delivery of the contract last above referred to said the Central Paper & Fiber Co. failed to complete its said contract with the plaintiff within the time so agreed upon. Thereupon, pursuant to the provisions of said contract and with the consent of the defendant and the said fiber company, the plaintiff undertook the completion of the said plant. ’ ’

Also that:

‘ ‘ The plaintiff was necessarily engaged in such performance of the said contract and in securing the completion thereof until after August 1, 1891, and some of the obligations incurred by it therein matured and were paid by it after such date. ’ ’

This action was commenced July 20, 1906, which, it will be observed, is more than fifteen years after the date, to-wit, October 16, 1890, when the fiber company agreed to complete its work, and when upon the fiber company’s default, the plaintiff entered upon the completion of the work, pursuant to the express terms of the contract. But the commencement of this action was less than fifteen years after the expiration of the period during which the plaintiff was necessarily engaged in finishing the work thus undertaken by it.

The defendant claims that the plaintiff’s right of action upon the guaranty accrued simultaneously with its right of action against the fiber company, at the moment the latter was in default, upon its contract; that the right which the plaintiff thereafter exercised of completing the work and charging the cost thereof to the fiber company gave rise to no distinct right of action, but simply fixed the amount of the liability already incurred by the fiber company, and by its guarantor through its default; and that the rule of damages stipulated in the contract itself is substantially, if not exactly, the same as that which the law would have afforded had the contract been silent upon the subject.

It must be confessed that this construction of the contract and of the rights of the parties is at least plausible. We think, however, that the contract must be viewed as affording to the plaintiff, after it had availed itself of its right thereunder to complete the work and charge the cost thereof to the fiber company, a new and distinct right of action, to-wit, for work, labor and materials furnished at the special instance and request of the fiber company. True it might have sued the fiber company in damages for breach of contract, and the rule of damages would have been the same. But we see no reason to doubt that it had also the right to wait before bringing suit until it had incurred the cost and expense, and thereupon mould the allegations of its petition in such manner as to recover for its expenditures as such instead of as damages for breach of contract.

The defendant’s guaranty extends to the contract generally. If the plaintiff had alternative rights of action against the fiber company under the contract, the same alternative is available against the fiber company’s grantor. ' '

It not frequently happens that to avoid the bar of the statute of limitations the plaintiff makes an election between the alternative remedies in certain cases; for example, where there has been a conversion of personal property plaintiff may waive the tort and sue .as upon contract for the value of the goods taken. So, also, a passenger may have either his action in tort for personal injuries received by a carrier’s negligence, or he may, probably if need be in order to-avoid the bar of the statute of limitations, sue for breach by the carrier of its contract to use the utmost care to carry him safely.

These cases, are, of course, not parallel to the one at bar, for the alternative here is not between an action ex contractu and one ex delicto. The action is in ány case upon the guaranty of the fiber company’s contract. But there was, we think, an election of remedies as against the fiber company, and the cause of action must be deemed to have originated at one time or another, according to the election made. Thus viewing the matter, we hold that the action below was not barred by the statute of limitations, and that so far as this ground of demurrer to the amended petition is concerned, the court below erred in sustaining it.

It is said, however, that the error is not prejudicial because a further ground of demurrer which was disallowed by the court below ought rather to have been upheld, so that the demurrer was properly sustained, even though a wrong reason was assigned. This ground of demurrer is founded upon the contention that the defendant’s guaranty was ultra vires, and therefor void. ¥e can not reconcile the law of Ohio, as declared by our own Supreme Court with the contention thus made. The petition here alleges that at the time said contract of guaranty was made “practically all of the uncompleted portions of the said the Central Paper & Fiber Co.’s contract with the plaintiff required the furnishing and installing of machinery, tools and equipment, and in the manufacture and sale of which the defendant was engaged as a business and which it had contracted with said the Central Paper & Fiber Co. to furnish for and install in said plant.”

It appears from this and other averments that the defendant was directly interested in the carrying out of the contract between the plaintiff and the fiber company, so that its contract of guaranty can not be said to be utterly unconnected with its regular business or entirely outside of the scope of its corporate powers. It is of course true that a manufacturing corporation in Ohio has no express authority to enter into contracts of guaranty, but on the other hand, there is nothing in our laws expressly forbidding them so to do. Of itself such a contract is not immoral nor prohibited by law nor contrary to the public welfare. Unlike the federal courts the Supreme Court of this state has latterly given strong indication of its leaning to the modern doctrine that a corporate contract made without legislative sanction, and hence ultra vires, but neither malum in se nor expressly prohibited, is not necessarily illegal so as to preclude action upon it, and if it be fully performed on the part either of the corporation or of the other contracting party, neither will be permitted to insist that the contract so performed by one party is outside the corporate power of the company. Hays v. Galion Gas, L. & C. Co., 29 Ohio St. 330, 340; Larwell v. Hanover Savings Fund Society, 40 Ohio St. 274, 285; Ewing v. Toledo Savings Bank, 43 Ohio St. 31 [1 N. E. 138]; Conant, Ellis & Co. v. Reed, 1 Ohio St. 298; Bank of Chillicothe v. Chillicothe, 7 Ohio (part 2), 31 [30 Am. Dec. 185].

Neither ground of demurrer to the amended petition below having been well taken, the demurrer should have been overruled, and the judgment of common pleas is accordingly reversed and the cause remanded, with instructions to that court to overrule the demurrer and to proceed further in the cause according to law.

Marvin and Winch, JJ., concur.


source: Caselaw Access Project

author: HENRY, J.

license: Public Domain

text:
    ATTORNEY AND CLIENT — EVIDENCE.
    [Cuyahoga (8th) Circuit Court,
    May 31, 1910.]
    Henry, Marvin and Winch, JJ.
    Abrazonine Co. v. Ohio Ceramic Engineering Co.
    1. Admissions of Counsel in Pleadings, etc., Admissible Against Clients.
    Admissions of counsel in pleadings, motions, affidavits and other papers filed in a cause are admissible in the same cause against their clients, if made within the scope of their authority.

      2. Admission of Receiver against Interest of Estate, Binding on Estate.
    When a receiver, acting in the course and within the scope of his official duty, makes an admission against the interest of the estate in his custody, it is binding upon the estate and its owner.
    3. Authority of Attorney Presumed from Appearance.
    The authority of an attorney is to be presumed from his appearance as such in a case, until the contrary affirmatively appears.
    Error.

      Lawrence, Bussell & Eichelberger, for plaintiff in error.

      Lang, Cassidy & Copeland, for defendant in error.
   HENRY, J.

The parties here stand in the relation opposite to that in which they stood below. There the defendant in error recovered a verdict and judgment for $900.16 on a contract evidenced by the following correspondence:

“April 20, 1906.
“Mr. John Kline,
“Wyckliff, Ohio.
“Dear Sir: Confirming verbal proposition made by you this morning would say that we will furnish you one of our double die power silica presses complete, with one set of double dies for 6 emery wheels and one set of double dies for 3 emery wheels for $750 f. o. b. our factory. In case you return this press to us, you are to pay us $125, we to pay the return freight on the press. Of course the press is to be returned in good condition without any broken parts.
• “In case you should return the press and should take the Ross-Keller 4 mould press which we have at $1,800 we will ask no charge for the use of our press, or if you should take the Boyd 4 mould press which we have for sale at $2,400 and return ours, there would be no charges for the use of ours. In case you, should make this change; you are to pay the freight on the Ross-Keller or Boyd presses from point of shipment and we are to pay the return freight on our press. We would also furnish a man free of charge to superintend the setting up of the Ross-Keller press at your plant.
“Yours very truly,
“The Ohio Ceramic Engineering Company, “(Signed) Frank H. Robinson, President.”
“April 26, 1906.
“The Abrazonine Co.,
“City.
“Gentlemen: Referring to proposition which we made Mr. John Kline on April 20th, for one of onr power silica presses, we hereby amend said proposition to extend the time to 90 days if necessary, the understanding being that the press, if returned, will be in such condition that we will not have to sacrifice in making a re-sale. At the end of four weeks, if y;ou still desire to keep the press, it is understood that you will pay one-third of the purchase price subject to all the conditions of original proposition to Mr. John Kline as to the return of the machine, etc., the difference between amount paid and the agreed rental price to be refunded to the Abrazonine Co. at that time.
“Yours very truly,
“The Ohio Ceramic Engineering Company,
“Frank H. Robinson, President.”
“Cleveland, Ohio, April 26, 1906.
“Ohio Ceramic Engineering Co.,
1 ‘ City.
“Gentlemen: Referring to proposition which you made our Mr. John Kline under date of April 20th and amended today we hereby desire to confirm the verbal acceptance given you by the writer today. Kindly consign the press, together with the seven barrels of our material at your works to us at Wickliffe, Ohio, via Lake Shore & Michigan Southern R. R.. It is important that shipment be made at the earliest possible moment and we trust that same will go forward not later than Saturday, Apr. 28.
“Yours very truly,
‘ ‘ The Abrazonine Company,
“F. L. Hurst,
. “Pres. & Gen. Mgr.”

The press contemplated by this correspondence was delivered as therein provided. It has neither been paid for nor returned to the defendant in error. But the contention of plaintiff in error is that the parol evidence offered to show what is meant by the “agreed rental price” mentioned in the correspondence, and otherwise to show a different contract than the correspondenee itself would indicate, is admissible to explain the transactions of the parties and that the construction of the contract as thus evidenced was for the jury. It suffices to say that we do not endorse this view. The contract seems to us to be perfectly plain on its face and to need no other construction than such as the court gave it in the charge to the jury. Nor do we think that the result could be properly varied by the evidence sought to be offered by the defendant below to show that the plaintiff below extended the time within which the option to return might be exercised, and that it actually exercised dominion over the press equivalent to a return and acceptance thereof. The evidence was relevant enough, but it amounted to nothing, being hearsay or otherwise inconclusive.

On the question of the admissibility of the receiver’s original answer, and of the affidavit by counsel for defendant below, in support of a motion for continuance, as containing admissions by the receiver of the defendant company as to its corporate capacity, and by its attorney as to the name and identity of its president, it suffices to say that the following authorities seem to establish the competency of this precise sort of evidence, as of admissions against interest: Fort Payne Coal & Iron Co. v. Webster, 163 Mass. 134, 137 [39 N. E. 786]; Bosworth v. St. Louis Terminal Ry., 174 U. S. 182, 189 [43 L. ed. 941; 19 Sup. Ct. 625]; Scott & Co. v. Woodward, 39 Tex. Civ. App. 498 [88 S. W. 406]; Fidelity & Casualty Co. v. Brown, 4 Ind. Ter. 397 [69 S. W. 915].

From these it appears not only that admissions of counsel in pleadings, motions, affidavits or other papers filed in the same cause are admissible against their clients if made within the scope of their authority, and are admissible in evidence in the same ease, but also that where a receiver acting in the course and within the scope of the official duty makes an admission against the interest of the estate in his custody, it is binding upon the estate and its owner. The authority of an attorney at least is, we think, to be presumed from his appearance as such in a case until the contrary affirmatively appears, and when it is the duty of a receiver to defend an action brought against a corporation or natural person, of whose estate he has been appointed the receiver, he represents the defendant fully for the purpose of the action.

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

Marvin and Winch, JJ., concur.


text:
    CONSTABLES — PRINCIPAL AND SURETY.
    [Cuyahoga (8th) Circuit Court,
    June 7, 1910.]
    Henry, Marvin and Winch, JJ.
    American Surety Co. v. American Bonding Co.
    Defense of Surety on Indemnity Bond Against Claim of Surety on Constable's Official Bond for Levy on Exempt Property.
    In an action by a surety on a constable’s official bond, who has been obliged to pay a judgment obtained against the constable for levying upon exempt property, brought against the surety on an indemnity bond given the constable by the judgment creditor to protect the constable from damages for levying upon exempt property, the surety on the indemnity bond may defend on the ground that the constable refused to restore exempt property to the judgment debtor, when directed so to do by the judgment creditor, principal on the indemnity bond.
    Error.

      T. F. Quigley and H. A. Couse, for plaintiff in error.

      M. B. & H. H. Johnson, for defendant in error.
   HENRY, J.

The parties to this proceeding in error stand in the relation opposite to that in which they stood below. In a previous action there one Himmelfarb recovered a verdict and judgment of five hundred dollars against the bonding company, defendant in error here, upon a constable’s official bond on which it was the surety. Thereupon the bonding company recovered a like judgment against the surety company, plaintiff in error here, on an indemnity bond, executed and delivered by said surety company to s,aid constable to protect hini against loss, from levy, etc., which he was then asked to make, and afterwards did make upon the goods and chattels of said Himmelfarb, and because of which the said judgment on his official bond was recovered.

The verdict and judgment against the surety company were recovered by direction of the court at the conclusion of all the evidence, upon the theory that the liability on the first bond was fully covered by the terms of the second. But the answer alleges, and the evidence tends to show, that the party who had caused the constable, to make the levy and who had furnished him the indemnity bond, instructed him to restore to Himmelfarb certain of the goods and chattels, so levied upon, which were claimed by Himmelfarb as exempt; but that the constable in violation of said instructions, failed and refused to return said property.

The constable’s liability for levying upon exempt property was clearly covered by each bond, and was expressly counted upon in the action upon his official bond. But the indemnity afforded by the second bond is of course subject to the defense that the constable refused to restore such exempt property at the request of him for whom he had made the levy.

The constable’s excuse for failure to restore the property is that Himmelfarb’s representative, claiming that a part of it was-missing, refused to receive any of it, when tendered back. The insufficiency of this excuse was, of course adjudicated in the action upon the official bond. The issue of fact as to the alleged disobedience by the constable of the instruction given by his principal should have been submitted to the jury, and it was therefore error for the court below to direct the verdict for the plaintiff below. For this error the judgment of the court of common pleas is reversed and the cause remanded.

Marvin and Winch, JJ., concur.


text:
    CONTRACTS.
    [Cuyahoga (8th) County Circuit,
    June 7, 1910.]
    Henry Marvin and Winch, JJ.
    John W. Williams et al. v. A. C. Fortlage.
    Waiver of Full Performance, not Modification or Contract.
    A contract provided that a house should be moved from the bottom of a hill to its summit, the owner expressed himself as satisfied with its position when it was placed by the mover at a point somewhat below the summit of the hill and the mover accord-' ingly regarded his contract as fully performed. Held: This evidence does not present a cause of modification of a contract requiring a new consideration, but a case of waiver of full performance.
    Error.

      Wm. M. Reynolds, for plaintiff in error.

      C. A. Besek, for defendant in error.
   HENRY, J.

As indicated upon the hearing, we find ourselves unable to weigh the evidence in this case because one of the exhibits offered in evidence below is missing from the bill of exceptions, never having been incorporated therein, for the reason that it could not be found. The only other error assigned is founded on the contention that the alleged modification of the contract sued upon was unsupported by consideration. The contract in question was for the moving of a house from the valley to the top of the bluff at Rocky River, but when the house was moved to a point somewhat below the summit, the owner expressed himself as satisfied with its position and the mover accordingly regarded his contract as fully performed.

These facts present not a ease of modification of a contract requiring a new consideration, but only a ease of waiver of some item of performance of the contract by a party entitled to insist upon or to waive such performance, as he may elect.

There being no error in the record before us, the judgment is affirmed.

Marvin and Winch, JJ., concur.


text:
    FORCIBLE ENTRY AND DETAINER — JUSTICE OF THE PEACE.
    [Cuyahoga (8th) Circuit Court,
    June 7, 1910.]
    Henry, Marvin and Winch, JJ.
    Andrew J. McFann v. C. H. Carlton, Ex.
    1. Judgment of Common Pleas Affirming J. P. in Forcible Detainer Reviewable in Circuit Court.
    When a petition in error seeking to reverse the judgment of a justice of the peace in a forcible detainer case is, on leave, filed in the common pleas court, the judgment of the latter court thereon is reviewable in the circuit court. Rothwell v. Winterstein, 42 O. S., 249, distinguished.
    2. Single Notice to Vacate, Sufficient Forcible Detainer.
    In an action in forcible detainer under the provisions of Sec. 4276, R. S., to recover the possession of premises occupied by the tenant for gaming, no notice to quit, other than that incident to the bringing of the suit, need be given.
    3. New Trial Granted by J. P. Proper Practice.
    Under Sec. 6560, R. S., a justice of the peace may grant a new trial in a forcible detainer case.
    4. Justice not Required to Charge Jury before or after Argument.
    A justice of the peace is not required to charge the jury either before or after argument.
    5. Charge to Jury by J. P. Liberally Construed.
    When a justice of the peace charges a jury, his charge is not to be viewed with a critic’s eye and its imperfections are to be passed by, unless they are so plainly erroneous and prejudicial as to indicate that the verdict was unjust and unlawful.
    6. Separation of Jury Overnight in Forcible Detainer not Erroneous.
    It is not reversible error for a justice of the peace to permit a jury to separate over night, after the case has been submitted to it, unless it is shown affirmatively that prejudice resulted therefrom to the defeated party.
    7. Refusal to Discharge Jury on Foreman’s Report of Disagreement.
    It is not error for a justice of the peace to refuse to discharge a jury when the foreman thereof on the first evening reports that the jury would probably be unable to agree, or at least that he saw no chance thereof at that time.
    Error.

      Jos. L. Stern, for plaintiff in error.

      Cook, McGowan & Foote, for defendant in error.
   HENRY, J.

The original action below was commenced by the defendants in error here against the plaintiff in error, before a justice of the peace, in forcible detainer, to recover possession of leased premises, upon forfeiture of the term for permitting gaming theron. A verdict of “not guilty” and judgment rendered thereon were set aside by the justice, and a new trial granted on the statutory ground that the verdict was obtained by partiality. Section 6560 R. S. (Sec. 10352 G. 0.)

At the second trial a verdict and judgment were recovered by the defendants in error. The plaintiff in error, by leave of court, filed his petition in error in the court of common pleas. There the judgment of the justice of the peace was affirmed and error is now prosecuted here.

A preliminary question raised by the defendants in error here challenges the jurisdiction of this court in this kind of a case upon the ground that forcible entry and detainer is a form of action intended to afford summary relief against a tenant wrongfully continuing in the possession of leased premises. It is urged that even the court of common pleas can not entertain proceedings in error prosecuted to reverse a judgment of the kind here presented, except upon leave first sought and obtained, and that if litigation in such cases may be indefinitely prolonged by the tenant’s persistence in seeking review through all the courts, the delay will amount to a denial of justice. Rothwell v. Winterstein, 42 Ohio St. 249, is cited. But that case decides merely that a proceeding in error to reverse the judgment of a justice of the peace can only be commenced in the -first instance in the court of common pleas, and there only by its leave, and that its refusal to grant such leave is not reviewable. Moreover, Sec. 6709 R. S. (Sec. 12247 G. C.), provides generally that:

“A judgment rendered or final order made by any court of common pleas, or a judge thereof, may be reversed, vacated or modified by the circuit court of the county wherein such court is located, for errors appearing upon the record.”

We hold, therefore, that we have jurisdiction to entertain this proceeding in, error.

Coming now to the errors assigned by the. plaintiff in error we shall consider them in their order.

1. It is urged that the justice of the peace had no jurisdiction of the action because a single notice to vacate the premises was made to serve the double purpose of compliance with the requirements of Secs. 4276 and 6602 R. S. (Sees. 5972 and 10450 G-. C.), in that behalf. These sections are as follows:

Section 4276 (5972). “Whenever premises are occupied for gaming or lottery purposes the lease or agreement under which they are so occupied shall be absolutely void at the instance of the lessor, who may at any time obtain possession by civil action, or by action of forcible detainer before a justice of the peace; and if any person leases premises for gaming or lottery purposes, or knowingly permits them to be used and occupied for such purposes, and fails immediately to prosecute, in good faith, an action or proceeding for the recovery of the premises, such lessor shall be considered in all cases, civil and criminal, as a principal in carrying on the business of gaming, or a lottery in such building.

Section 6602 (10450). “It shall be the duty of the party desiring to commence an action under this chapter, to notify the adverse party to leave the premises, for the possession of which action is about to be brought, which notice shall be served at least three days before commencing the action, by leaving a written copy with the defendant, or at his usual place of abode, if he can not be found. ’ ’

The contention is that the former of these sections contemplates a notice of forfeiture and gives a choice of remedies as between forcible detainer in the court of a justice of the peace, and ejectment in the court of common pleas. The plaintiffs below having elected the former remedy, they were obliged, it is insisted, to comply with all prerequisites to the maintenance of that species of action, including the service of notice to leave the premises, as provided by See.'6602 (10450).

It will be noticed, however, that Sec. 4276 (5972), though it provides that a lease of premises shall for the causes therein named “be absolutely void at the instance of the lessor” contains no express requirement of notice to be served upon the lessee, and we think that no notice other than that incident to the bringing of the suit in one form or the other need be given. We hold, therefore, that the justice of the peace had jurisdiction of the action which was brought before him.

2. It is urged further that the justice of the peace exceeded his jurisdiction in granting a new trial, after the first verdict and judgment were rendered.

The contention is that Sec. 6609 R. S. (Sec. 10458 G-. C.), which applies only to the rendition of judgment in forcible entry and detainer cases, is so irreconcilable with Sec. 6560 R. S. (Sec. 10352 G. C.), which provides generally for the granting of new trials by justices of the peace, that the latter can have no application to forcible entry and detainer cases. These sections are as follows:

Section 6609 (10458). “The justice shall enter the verdict upon his docket, and shall render such judgment in the action as if the facts, authorizing the finiding of such verdict had been found to be true by himself.

Section 6560 (10352). “It shall be lawful for the justice before whom a cause has been tried, on motion, and being satisfied that the verdict was obtained by fraud, partiality or undue means, at any time within four days after the entering of judgment, to grant a new trial, and he shall set a time for the hew trial, of which the opposite party shall have at least three days notice. ’ ’

It is true that the regulations governing the rendition of judgment under Sec. 6609 (10458) in forcible entry and detainer cases differ essentially from those that govern the rendition of other judgments under Sec. 6579 (10378), But we do not agree that Section 6609 makes the finding of the jury so conclusively the finding of the justice himself, when judgment has been rendered upon the verdict, as to preclude his right to grant a new trial under Sec. 6560 (10352), when, satisfied that the verdict was obtained by partiality. We hold, therefore, that the justice had jurisdiction to grant a new trial for the cause specified, and that the first judgment is no longer effective.

3. It is urged also that under Sec. 6705 R. S. (Sec. 10490 G. C.), making those provisions of the code of civil procedure “which are in their nature applicable to the proceedings before justices, and in respect of which no special provision is made in this title [the justices’ code], are applicable to the proceedings before the justices of the peace,” the trial court erred in refusing to charge as requested before argument. We do not subscribe to this view. Justices of the peace are not required to instruct the jury at all and the provisions of the code of civil procedure in regard to requests to charge before argument are not in their nature applicable to proceedings before justices of the peace.

4. It is urged that the justice erred in his general charge to the jury, but though the instructions were not well presented, our duty in regard to justices’ proceedings, where jurisdiction is shown, is not to view them with a critic’s eye, but pass their imperfections by, unless they are so plainly erroneous and prejudicial as to indicate that the final result is unjust and unlawful. In the record before us we note that all of the requests presented by the defendant below were given to the jury, except No. 2, which is in conflict with the case of Ulsemer v. State, 11 Dec. Re. 889 (30 Bull. 293), and the charge from that case was repeated verbatim to the jury in this case at his request. Under these circumstances we find no error in the charge as a whole.

5. It is complained further that the justice permitted the jury to separate for the night after their deliberations had commenced, contrary to the provisions of See. 6557 R. S. (Sec. 10349 G. C.), which requires that:

“After the jury shall have been sworn, they shall sit together, and hear proofs and allegations of the parties; and, after hearing the same shall be kept together in some convenient place under the charge of a constable, until they have agreed upon their verdict, or shall be discharged by the justice. ’ ’

This provision is clearly directory, and unless its violation be shown to have resulted prejudicially to the defeated party, no error can be predicated upon it. Downer v. Baxter, 30 Vt. 467; Cullers v. Baltimore & O. Ry., 1 O. S. C. D. 266 (33 Bull. 90); Armleder v. Lieberman, 33 Ohio St. 77 [31 Am. Rep. 530].

For like reasons we think there was no error in refusing to discharge the jury when the foreman reported on the first evening that they would probably be unable to agree, or at least that he saw no chance thereof at the present time.” Section 6559 R. S. (Sec. 10359 G. C.); Poage v. State, 3 Ohio St. 229, 239; Hines v. State, 24 Ohio St. 134, 138.

6. Misconduct of counsel and jury is also urged as a ground for reversal. But without reviewing the facts of the alleged misconduct at length, it suffices to say that we do not find any prejudicial error in these respects.

There being no ground for reversal found in the record the judgments of the court of common pleas and of the justice court are affirmed.

Marvin and Winch, 33., concur.


text:
    LEASES.
    [Cuyahoga (8th) Circuit Court,
    June 28, 1910.]
    Henry, Winch and Taggart, JJ.
    (Judge Taggart of Fifth Circuit Sitting in Place of Judge Marvin.)

      Swetland & Sons Co. v. Bronx Realty Co.
    Between Parties Lease for Three Years Though with Renewal Option Needs no Attestation, Acknowledgment or Record.
    As between the parties to it, a lease for three years, whether the term begins at once or in the future, need not be attested, ac-acknowledged or recorded, and this is so even though the lease contains an option to the tenant to renew or extend the same for another like period.
    Error.

      Carpenter, Young & Stocker, for plaintiff in error.

      Deutch, Howells & Grossman, for defendant in error.

      Affirmed, no op., Swetland & Sons Co. v. Bronx Realty Co., 86 Ohio St. 313.

   HENRY, J.

The parties stand in the relation opposite to that in which they stood below. There the action was for rent accrued under a writing of March —, 1906, purporting to be a lease for three years commencing April 1, 1906, with an option to the tenant to renew or extend the same for another like period. The first cause of action is for rent for a period of actual occupancy by the lessee, and as to this there is no dispute. The second cause of action is for later rent after the premises were vacated without cause. The judgment recovered for this rent is claimed to be erroneous because the lease being for a term exceeding three years, and hence not within the terms of See. 3112 E. S. (See. 7999 G. C.) was not executed as required by See. 4106 E. S. (Sec. 8510 G. C.). That the term exceeds three years is argued first, from the fact, that the three year period contemplated commences in the future, and secondly, that it is subject at the tenant’s option to a renewal or extension for another three year period.

We find ourselves unable to agree with either of these contentions. Without deciding what the rights of innocent purchasers or other third parties might be, nor what force the option might have if it were sought to be exercised, for as we view the matter these questions are not involved, we hold that Sec. 4112 E. S. (See. 8517 G. C.), applies to a term of three -years or less, whether beginning in fuhiro or in praesenti.

A reference to the acts of February 4, 1828, and February 22, 1831, 3 Chase’s Statutes, pp. 1588, Sec. 2, and 1845, See. 9, being the originals of said Sec. 4112, makes it evident that it is the duration of the term and not the time to elapse affer the making of the agreement, which the legislature had in .contemplation in this behalf.

On the other point, an examination of Toupin v. Peabody, 162 Mass. 473 [39 N. E. 280] and of the other authorities cited, fails to disclose any clear authority, nor do we perceive, any reason, for holding that the demise of the term is invalidated by annexing thereto a conditional agreement to lease the property for an additional period.

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

Winch and Taggart, JJ., concur.


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    BILLS AND NOTES
    [Cuyahoga (8th) Circuit Court,
    June 28, 1910.]
    Henry, Marvin and Winch, JJ.
    H. C. Odenkirk v. Katherine Higgins.
    Payee not Bound by Relationship between Joint Makers as Principal and 8'urety without Notice.
    In a suit on a promissory note against one of two joint makers, It is error to refuse to charge that the plaintiff is not bound by the relationship of principal and surety alleged by the defendant to exist between the joint makers, unless he had notice of that relation when he took the note.
    Error.

      Parsons & Fitzgerald, for plaintiff in error.

      Charles S. Beardsley, for defendant in error.
   HENRY, J.

The parties here stand as they stood below. There the action was commenced under the statute against the defendant in. error as one of two joint makers of a promissory note. The answer averred that said defendant was to the knowledge of the plaintiff, a surety only and that the plaintiff having released the other joint maker the defendant was thereby also released. The defendant recovered a verdict and judgment, which are here sought to be reversed as being against the weight of the evidence and also for error in the charge.

We find sufficient evidence to support the verdict. As to the charge, the court was asked to instruct the jury that the plaintiff was not bound by the relationship of principal and surety alleged to exist between the joint maker of the note, unless he had notice of that relation when he took the note. Despite the conflict of authority, we think the court should have so charged. Rawson v. Taylor, 30 Ohio St. 389 [27 Am. Rep. 464]. Compare also Sec. 5832 R. S. (Sec. 12190 G. C.)

For this error the judgment is reversed and the cause remanded.

Marvin and Winch, JJ., concur.


text:
    FRANCHISES — MUNICIPAL CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    October 21, 1910.]
    Heriry, Marvin and "Winch, JJ.
    State ex rel David B. Evans v. John H. Orgill et al.
    1. Franchise Ordinance does not Require Publication.
    An ordinance of a municipality granting a franchise does- not require publication.
    2. Franchise Accepted not Withdrawn by Ordinance Repealing.
    When a public service corporation has duly accepted a franchise granted it by a municipality, the franchise can not be withdrawn by repealing the ordinance granting it.
    Error.

      James E. Mathews, for plaintiff in error.

      J. II. Price, Kline, Tolies &Morley and Newton D. Balter, for defendant in error.
   HENRY, J.

The legislature in Sees. 4224 and 4227 G. C. having clearly discriminated between an ordinance of a general nature and one granting a franchise, and having required only the former to be published, it follows that the ordinances of the city of Cleveland passed December 6, 1909, granting franchises to the Cleveland Underground Rapid Transit Railroad Company required no publication. Those ordinances having been duly accepted by said company, the subsequent attempted repeal thereof by the council January 17, 1910, was ineffective to abrogate the contract then already completed. Our conclusion is in accord with that in State v. Oakwood Street Ry., 30 O. C. C. 632 (11 N. S. 263), affirmed without report .in 81 Ohio St., 502 [91 N. E. 1140].

The ordinances granting the franchises in question having been seasonably accepted and the attempted repeal being ineffectual, it further follows that the proposed referendum 'election, a petition for which has been duly filed and certified to the board" of elections, should not be enjoined. Upon the; result of that election the validity of the so-called subway franchise will turn.

The demurrer interposed by the plaintiff to the answer in this case is overruled, and the plaintiff not desiring to plead further, the petition is dismissed.

Marvin and Winch, JJ., concur.


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    MANDAMUS
    [Cuyahoga (8th) Circuit. Court,
    October 28, 1910.]
    Henry, Marvin and Winch, JJ.
    State, ex rel Rubinstein, v. H. B. Wright, Aud.
    Remedy of Excluded Police Court Interpreter is by Mandamus against Police Judge, not-Paying Auditor.
    Under Sec. 4589 G. C., which provides that the police judges of certain cities may appoint an interpreter of that- court, one who claims the right to said office from which he has been excluded by said judges who have appointed another in his stead may test it by mandamus against the police judges to restore him to' his place, and not by mandamus against the city auditor to issue him a warrant for his pay during the time he is so excluded.
    Appeal.

      Westenhaver & Boyd, for plaintiff.

      Newton D. Baker, for defendant.
   HENRY, J.

This is an appeal of an action in mandamus to compel the city auditor of the city of Cleveland to issue vouchers for two installments of pay alleged to be due to the relator as police court .interpreter, who claims to be the lawful incumbent of the offiee provided for by. Sec. 4589 G. C. as follows':

‘ ‘ The business of the court shall be dispatched with all speed consistent with a full, fair- trial or hearing, of the case. In cities where there is more than one police judge, the judges of the police court may appoint an interpreter for the court, and in case they fail to agree, the clerk of the court may appoint such interpreter, for the term of two years, who shall receive as compensation fifteen hundred dollars per year; the interpreter shall attend all sessions of the court and obey all -orders of the judges thereof. He shall receive no fees while acting in the capacity of. the interpreter, and the judges may for adequate cause remove him.”

The facts as agreed to by the parties are essentially as follows :

That the relator was first appointed May 10, 1904, and reappointed May 25, 1906, upon certificate of the police judges that they failed to agree. The judges then in office were succeeded on January 1, 1907, by the present incumbents, who took no action in regard to the appointment of a successor to relator until June 1, 1910, when they appointed Samuel Greenwald; Greenwald qualified and has since been recognized by the judges as the incumbent of the place, except that an acting police judge has, on several different days since Greenwald’s appointment, recognized the relator, who, whether recognized or not, has continued his attendance and tendered performance of the duties of an interpreter. The relator has taken this course in pursuance of his reappointment May 24, 1910, by the police court clerk, who acted in thé. premises on the theory that mere omission of the judges to appoint amounted to a failure to agree upon an appointment, notwithstanding that the judges had never given the matter consideration during their incumbency. Between the date of the relator’s last' appointment and the date of Greenwald’s appointment, a period of eight days, the relator served as police interpreter.

It is urged that if the position is an office, quo warranto to determine the right of the claimant thereto and not mandamus is the proper remedy; and if it is only an employment by the city, mandamus still will not lie because there is an adequate remedy at law in damages for wrongful discharge. James v. Allen Co., 44 Ohio St. 226 [6 N. E. 246; 58 Am. Rep. 821]; Gobrecht v. Cincinnati, 51 Ohio St. 68, 69 [36 N. E. 782; 23 L. R. A. 609].

But in State v. Baldwin, 77 Ohio St. 532 [83 N. E. 907; 19 L. R. A. (N. S.) 49; 12 Ann. Cas. 10], it was held:

“Mandamus is the proper remedy to restore a party to the possession of an office from which he had been illegally removed.”

The rest of the syllabus shows that the rule applies to any public position. The relator there was a police detective and the court said, by Summers, J., at p. 553:

“The restoration of relator to his office and the ousting of the person who was appointed to succeed him does not present a case of determining title to an office, because his removal was absolutely void the pretended appointment is a mere nullity.
“The mayor being without jurisdiction there is no controversy as to the relevant and controlling facts, and proceeding to render the judgment that the circuit court should have rendered, it is ordered that a peremptory writ of mandamus as prayed for issue against the respondent as mayor.”

At page 540 he cites with approval, Chicago v. People, 210 Ill. 84 [71 N. E. 816]:

“This was a proceeding in mandamus by a police patrolman to compel the city of Chicago and the general superintendent of police to place his name upon the roster of police patrolmen, from which it had been omitted and excluded by a former general superintendent of police, and to place his name upon the police payroll, from which it had been omitted and excluded; also to compel the civil service commissioners of the city to certify his name to the comptroller of said city as a person entitled to pay as a police patrolman of the city, and to compel the city to pay the petitioner his salary for the time he had been excluded. It was held that his discharge was unwarranted because the trial board was not constituted as required by the rules of the civil service commission, and because he was not given an opportunity to be heard in his own defense. It was also held that if the trial had been held in the manner pointed out by the statute that then the action of the civil service commission would not be reviewable by the courts. A mandamus for the money was refused, but the lower court was directed to enter a judgment awarding a writ of mandamus commanding the civil service commissioners and the general superintendent of police and the comptroller of the city of Chicago forthwith to place the name of the petitioner upon the roster.of police patrolmen and upon the police payroll of said city of Chicago, to the end that the relator may at once enter upon the performance of his duties as a police patrolman with the same right to continue in the performance thereof and receive salary therefor as he had prior to his unlawful removal, and that the judgment so entered should not prejudice the right of the relator to assert his claim for right of salary for the period intervening between his removal and restoration in any appropriate form of action, nor the right of the city of Chicago to interpose any lawful defense thereto.”

This, we hold, is applicable here. The police judges are not parties to this proceeding and the only possible remedy by mandamus would be against, them to restore the relator to his place, and not against the city auditor for his pay while he is de facto deprived of his place.

In McDonald v. Newark, 58 N. J. L. 12 [32 At. 755], the syllabus is:

‘ ‘ The writ of mandamus can not be used to compel a municipality to pay damages for its illegal discharge of an employe.
“Salary having been paid by a municipality to a de facto incumbent of an office can not be recovered from the municipality by the de jure officer.
“Where, upon a demurrer to a replication to a return to an alternative writ, it appears upon the pleadings that the relator is entitled to only a part of what he demands in his alternative writ, there must be a judgment against the relator.”

Whether mandamus would lie in any ease we do not now decide, in view of the doubt which arises concerning the proper construction of the phrase “fail to agree” in the statute, from the language of the Supreme Court, in construing another section, in Siegfried v. New York, L. E. & W. Ry., 50 Ohio St. 294 [34 N. E. 331].

At page 296 the court says:

“To fail, implies an effort or purpose to succeed. One can not, properly, be said to fail in anything he does not undertake, nor, in an undertaking which he voluntarily abandons.” ,

The right of the clerk to appoint under the circumstances of this case is thus, not free from doubt.

So also is the right of discharge “for adequate cause” by merely appointing a successor, in view of the holding in State v. Sullivan, 58 Ohio St. 504 [51 N. E. 48; 65 Am. St. 781].

The petition is dismissed because no relief by mandamus can be granted on the facts in this case, against the city auditor.

Marvin and Winch, JJ., concur.


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    EASEMENTS
    [Cuyahoga (8th) Circuit Court,
    October 28, 1910.]
    Henry, Marvin and Winch, JJ.
    Emilie Bohm v. James T. Kelley et al.
    Abutters’ Rights on Vacation of Streets Dedicated and Condemned, Distinguished.
    The provisions of Sec. 3729, G. C., regarding the vacation of a street by a municipal council, that the right of way and easement in the street so vacated of any lot owner shall not be im- ■ paired, do not apply to streets the land for which has been appropriated by the municipality. In the latter case those injured have no remedy against the owner in reversion.
    Appeal.
   HENRY, J.

In this appeal issue is joined by demurrer' to the answer. The action is one for injunction against interference with plaintiff’s alleged easement or right of way over a portion of defendant’s land abutting on the south side of Lorain street in the city of Cleveland and situated in the acute angle formed by and lying east of the intersection of said street with Dennison avenue. Before 1899, Lorain street was 66 feet .wide, and east of the land in question it was widened to 80 feet by appropriating 7 feet on each side of the street. This action left a jog' of 7 feet on each side of .the street, some three or four rods east .of the said intersection of Lorain street and Dennison avenue. Plaintiff owns the triangular lot which abuts on both streets just east of their intersection, and defendant owns the lot next east of that, the said jog in Lorain street falling in the boundary line between them. Recently the city, by order of council duly made, vacated the small portion of Lorain street which had been taken from defendant’s lot by eminent domain when the street was widened; and the defendants, assuming that this seven foot strip has thus reverted to them, are about to erect thereon a brick building flush with the old street line, as re-established by said vacation proceedings. But the east end of the strip in question is, by reason of the jog aforesaid, a part of plaintiff’s west boundary line. Plaintiff, therefore, claims the rights of an abutter in respect to the portion of the street so vacated, and founds his action here upon the right defined by Sec. 3729 G-. C.:

‘ ‘ The order of the council vacating or narrowing a street or alley which has been dedicated to public use by the proprietor, shall, to the extent to which it is vacated or narrowed, operate as a revocation of the acceptance thereof by the council, but the right-of-way and easement therein of any lot owner shall not be impaired thereby.”

It is manifest, however, that this section applies only to land in a.street “which has been dedicated to public use by the proprietor” and not to that which has been appropriated to street purposes by exercise of the power of eminent domain. In the latter case those injured by an order of council vacating so much of the street as had theretofore been appropriated, have no remedy against him to whom the land has all the while belonged subject only to the public easement which the order of vacation abrogated.

Petition dismissed.

Marvin and Winch, JJ., concur.


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    PLEADING — TRIAL
    [Cuyahoga Circuit Court,
    November 9, 1910.]
    Henry, Marvin and Winch, JJ.

      I. P. Masten v. S. S. Levy and Andrew L. Kraffert.
    Pleading Intermingling Transactions of Fraud and Breach of Contract Permits Introduction of Evidence on Both.
    Intermingling of allegations of fraud and breach of contract, concerning the same transaction, do not necessarily commit the pleader to a single theory of his right to recover. He may introduce evidence in support of both aspects of his case and recover on either or both, according to the proof made.
    Error.

      W. D. Meals and B. J. Sawyer, for plaintiff in error.
    J. M. Shallenberger and J. Be Kaiser, for defendants in error.

      Affirmed no opinion, Masten v. Levy, 86 Ohio St. 363.

   HENRY, J.

The action below was brought by plaintiff in error here upon a promissory note for $500 made and delivered to him by the defendants in error, Levy and Kraffert. Masten sold to Levy and Kraffert August 22, 1905, a. saloon business at Nos. 7 and 9 East End avenue for $3,000, of which $2,000 was paid down and two notes for $500 each were given to cover the balance of the purchase price. One of these notes was afterwards paid and the action below was upon the remaining one. The defendant Kraffert was served, but filed no pleading. Levy answered admitting the facts as above set forth and alleging by way of further answer and also by way of cross-petition, that the transaction in question was evidenced by a contract which Was put in evidence, and is as follows:

“Cleveland, O., Aug. 22, 1905.
“This agreement entered into between I. P. Masten first party and Levy and Kraffert second party, witnesses:
“In consideration of bill of sale executed this day between said parties, first party agrees to deliver to second party on or before September 1, 1905, a lease of saloon at No. 9 East End Ave., Cleveland, Ohio, from September 1, 1905, until June, 1909, executed by the Cleveland Sandusky Brewing Co. with the same, condition printed in copy of lease hereto attached with rental at $60 per month.
“First party agrees to not go into the retail saloon business within three miles of said location, during term of said lease, or continuance of said second parties’ or assignees in said location. Said.first party to conduct business until September 1st, as his own, second party to have all receipts and pay all bills from the time of signing these presents.
“First party to stay and assist second party in becoming acquainted with said business for a period of not less than thirty days.
“First party to secure for second party same right of control of brand of whiskey known as ‘Full Weight’ the same as he has.
“Second party to have right to use sign and name of first party as now on said building.
“(Signed) I. P. Masten.
‘ ‘ Attest:
“B. J. Sawyer.”

The form of lease mentioned in this contract was never attached, and the bill of sale referred to therein discloses that he contracted to sell all wines, liquors, cordials, beer and cigars then in stock and contained in the saloon at No. 9 East End avenue.

The answer and cross-petition further alleges that the foregoing contract was violated by Masten in several particulars, to-wit:

First, in that he failed to deliver the lease called for therein and that the provision in the contract to the effect that the lease was “to be executed by the Cleveland Sandusky Brewing Co.” was interpolated by or for Masten after the execution of the contract and without the consent of the purchasers.

Second, that Masten misrepresented the quantity of whiskey in stock by express statements that there were three barrels thereof on hand; whereas in fact there were only some twenty-four gallons in all.

Third, that an ice box and certain screens in the saloon were represented by Masten to belong to him and to be among the items of property covered by the contract of sale; whereas in truth they were the property of third parties and were never delivered to the defendants.

Fourth, that Masten failed to assist defendants in becoming acquainted with the trade.

Fifth, that Masten’s failure to deliver the lease called for by the contract and his delinquency in other respects resulted in the utter loss of the good will of said business and its complete ruin and loss, so that the same was closed out and at public sale was bought in by Masten, who thereupon resumed business in that location.

All this is charged to have been done by Masten in pursuance of a preconceived plan to defraud Levy and Kraffert. Levy also avers that he requested Kraffert to join with him in demanding the relief prayed for in his cross-petition, to-wit, the cancellation of the note sued on by plaintiff, and damages in the sum of $5,000, but that Kraffert refused to comply with said request.

Issue was joined by reply which denied that Masten had in any way violated the contract. Upon trial of the issues a verdict and judgment were rendered for the defendants, allowing nothing upon the note sued on, and awarding damages on the cross-petition in the sum of $900.

The errors here complained of all relate to the question: “What is the true theory of the cause of action asserted in the cross-petition”? The plaintiff in error says in his brief, “It.is true that the cross-petition contains allegations of fraudulent representation, but on the whole the defendant Levy’s action as set forth in said cross-petition is one for breach of contract; at all events it was ultimately so construed by the trial court, ’ ’ etc., and it is urged that the court erred in admitting evidence of fraud. The charge, it is said, similarly confuses two irreconcilable theories of the ease, made by the cross-petition..

We do not agree with plaintiff’s contention that the court erred in these particulars.

In Gartner v. Corwine, 57 Ohio St., 246 [48 N. E. 945], suit was brought by Gartner against Corwine to recover damages for breach of warranty in the sale of a horse. The petition alleged, in addition to the warranty and its breach, that the defendant knew at the time of the sale that the animal was not what it was warranted to be. It was there contended that the effect of the averment charging the defendant with knowledge of the falsity of the warranty was to make the action one for deceit or fraud, and therefore that proof of such knowledge was essential to the plaintiff’s right, of recovery; otherwise the petition would include two inconsistent causes of action which could not be joined. In the opinion of the court, Williams, J., says at page 255:

“Whether there is more than one cause of action stated in the petition is a question upon which difference of opinion may exist. But it need not now be determined. If there are two, one for breach of the warranty and the other for fraud, they grow out of the same transaction, and may be properly joined in the same petition. * * * In favor of the view that there is but one cause of action stated, it may be said, there was but a single transaction between the parties, the negotiations resulted in the sale of the horse; there was but one wrong of the defendant, the sale of an unsound animal as and for a sound one; and there is but one right of the plaintiff growing out of the wrong, that is, to have redress for the injury he sustained in consequence of it, and for which he can have but one recovery. And a statement of all the facts of the transaction, with a demand for the relief desired, as one cause of action, seems inoré in harmony with our reformed system of pleading than the repetition of them, which becomes necessary, in part at least, in their statement as separate causes of action.”

Elsewhere in the same opinion he says further:

“And it is competent, we think, for a plaintiff to state in his pleading all the facts of the transaction which enter into his right to recover, as he believes, them to be, though they present different grounds of recovery, and admit of different modes or measures of relief; and he may ultimately have that relief to which the allegations proved, show him entitled.”

From the entire opinion it is manifest that the intermingling of allegations of fraud and breach of contract concerning the same transactions does not necessarily "commit the‘pleader to a single theory of his right to recover. He may introduce , evidence in support of both aspects of his case and recover on either or both, according to the proof made. In' other words, the case presented upon the record before us may be viewed as involving the elements both of fraud and of breach of contract without any inconsistency. "We discover no error in the admission of evidence upon the both aspects of the' issue, and we find no error in the charge of the court upon the ease as made by the evidence. The entire record is free from substantial or prejudicial error to the plaintiff in error and the judgment is affirmed. •

Marvin and Winch, JJ., concur.


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    APPEAL — CHATTEL MORTGAGES — WORDS AND PHRASES
    [Cuyahoga (8th) Circuit Court,
    November 9, 1910.]
    Henry, Marvin and Winch, JJ.
    C. F. Minnick et al v. S. E. Dettelbach et al.
    1. Appeal does not Take up Separate Branch of Casé Previously Disposed of.
    An appeal from the insolvency court to the court of common pleas does not take up a branch of the cause, separate and distinct from other parts of the cause, as to which the insolvency court had, theretofore and beyond the time limited for appeal, entered a judgment which reserved no further questions or directions for future determination with regard to that separate branch of the cause.
    2. “Indebted” in Chattel Mortgage Affidavit Equivalent to “Unpaid,” Prescribed by Law.
    A statement in an affidavit to a chattel mortgage that the mortgagor is “indebted” on the mortgage claim to the mortgagee in a certain sum, sufficiently complies with the requirement of Sec. 4154, R. S. (Sec. 8564 G. C.,' that the mortgagor must state under . .. oath that his claim is “unpaid.”
    8. Possession by Mortgagee of Chattels Superior to Rights of Assignee.
    When a mortgagee of chattels takes possession of them under his mortgage before the filing of a deed of assignment by the mortgagor, his rights are superior to the rights of the assignee.
    Error.

      Max E. Meisel, for plaintiff in error.

      Carpenter, Young & Stocker, for defendant in error.
   HENBY, J.

This litigation originated in the insolvency court with the filing of an assignment by the Paul’s Hotel Co. to the plaintiffs in error for the benefit of said company’s creditors. Upon application made there by the assignees for an order to sell property in their possession, the defendants in error, Dettelbach and Coakes, filed their cross-petition in said proceeding claiming certain items of said property.as fixtures belonging to them as lessors of the hotel to the insolvent company and asserting a lien upon all property in the hotel by virtue of a stipulation to that effect in the lease. At the April, 1908, term of the insolvency court the fixtures in question were decided in favor of the landlord, and judgment rendered accordingly. No proceedings to review this decision were taken until the insolvency court, at its July term, had tried the lien in question.

The second question was decided in favor of the assignees and in journalizing the judgment upon this branch of the case the former judgment upon the fixtures branch was reiterated; thereupon both parties appealed to the court of common pleas. Upon trial of the appeal that court ruled that the fixtures branch of the case was not embraced within the scope of the appeal thus taken, and refused to try that branch of the case. Upon trial of the lien question the court decided in favor of the landlord; and the assignees by this proceeding in error seek to review both branches of the case upon the record of the court of common pleas.

Upon the authority of Teaff v. Hewitt, 1 Ohio St. 511, we hold that the court of common pleas ruled correctly on the first question. The syllabus of Teaff v. Hewitt is, of course, the work of the reporter and not an expression by the court. The present practice of the Supreme Court, according to which the syllabi of reported cases are prepared by the court itself, did not then obtain, and the reporter inadequately conceived the scope of the court’s decision. In the opinion by Bartley, Chief Justice, appears the following language, at page 520:

‘1A final decree is one which determines and disposes of the whole merits of the cause before the court, or a branch of the cause which is separate and distinct from the other parts of the ease, reserving no further questions or directions for future determination; so that it will not be necessary to bring the cause, or that separate branch of the cause, again before the court for further decision. ’ ’

In Teaff v. Hewitt, supra, as in the ease at bar, a question, of fixtures was adjudicated by the trial court, which held that certain items claimed to be fixtures were such. At a later term, the trial court took up the question as to whether certain other items of property, also claimed to be fixtures, were within the lien of a certain mortgage. And it was held, upon review/ that the first branch of the action had been finally adjudicated at the previous term. The case is thus very like the one now before us and we see no ground for distinguishing them in the particular which is here in controversy.

The other branch of the case, we think, turns upon the construction to be given to the sworn statement of claim endorsed upon the lease which was filed as a mortgage just before the deed of assignment was filed. The statement is as follows:

“State of Ohio, Cuyahoga County, ss.
“C. C. Young, being first duly sworn, says he is the agent and attorney of S. E. Dettelbach and Frederick W. Goakes, the lessors and mortgagees in a mortgage and lease of which the within is a true copy; that said, the Pauls Hotel Co., lessee and mortgagor, is indebted to S. E; Dettelbach and Frederick W. Goakes in the sum of seven thousand five hundred dollars, payable during the ensuing year in monthly installments of six hundred and twenty-five dollars on the first day of each and every month; that such claim is just and lawful, and to secure the payment of the same, the said lease and mortgage have been executed in good faith. Signed, C. C. Young.”

It is urged that this statement does not satisfy the provisions of Sec. 4154 R. S. (Sec. 8564 G. C.), which reads as follows:

“The mortgagee, his agent, or attorney, before the instrument is filed, must state thereon, under oath, the amount of theclaim, and that it is just and unpaid, if given to secure the payment of a sum of money only. ’ ’

The point made by the plaintiffs in error is that this sworn statement does not sufficiently set forth that the claim referred to therein is 11 unpaid. ’ ’ It will be observed, however, that the affidavit does set forth that “the Pauls Hotel Co., lessor and mortgagor, is indebted to S. E. Dettelbach and Frederick W. Goakes in the sum of seven thousand five hundred dollars, ’ ’ etc. This, we hold, is equivalent to saying that the claim is unpaid.

It was suggested upon the hearing that some of the goods covered by the deed of assignment consisted of a shifting stock of provisions, liquors and cigars, as to which the mortgage, even if properly executed, sworn to and filed, would create no lien prior to possession taken. But it was said, in answer to this suggestion, that all goods of this character were sold under attachment by judgment creditors, and are, therefore, in no way involved in the controversy between the parties to this proceeding. There is some evidence to this effect in the bill of exceptions, but whether any of the shifting stock of goods be or be not included within the items of property sold by the assignees and therefore included within the fund here in controversy, is we think immaterial in view of the evidence which shows, or tends to show, that Mr. Young, as agent of the defendants in error, took possession of all the property in the hotel under his mortgage before the deed of assignment was filed. It is true that persons representing the creditors were already there, but their possession, if any, could effect no lien on, or transfer of, the property, as against the lessor’s and in favor óf the assignees, who are the sole parties to the present controversy. Mr. Young’s entry was prior to the filing of the deed of assignment and his rights áre therefore superior to those of the assignee under that deed. At least the court of common pleas was justified in so finding from the evidence, and oúr weighing of the evidence fails to disclose that the court of common pleas erred in its finding and judgment in this regard.

The judgment is therefore affirmed.

Marvin and Winch, JJ., concur.


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    JUSTICE OP THE PEACE — REFORMATION OP INSTRUMENTS
    [Cuyahoga (8th) Circuit Court,
    November 14, 1910.]
    Henry, Marvin and Winch, JJ.
    Mary Bastifell v. Bailey Co.
    Procedure Where Equitable Relief is Required in Action Before Magistrate.
    When a defendant in an action before a justice of the peace requires equitable relief, such as the reformation of a written instrument, which relief the justice can not grant, his proper course is to bring his action in the court of common pleas for reformation of the instrument and pray for an injunction to restrain the prosecution of the justice action until his rights to such relief are. adjudicated.
    Error.

      W. J. Wilson and D. B. Carpenter, for plaintiff.

      Feniger & Kastriner, for defendant.
   HENRY, J.

This case was originally brought before a justice of the peace, being a replevin suit begun by the Bailey Co. for the recovery of a piano. The transaction out of which the litigation grew was an exchange of pianos, whereby a balance of $245 was left owing the Bailey Co. by Mrs. Bastifell. Upon the trial in the justice court it appeared the facts were these: About the time the exchange was effected, the Bailey Co. gave a certificate, by the terms of which it undertook and agreed then and there that any installments of the purchase price due it for the piano which it had given in exchange to Mrs. Bastifell would, in case of her death, be canceled, so that the piano would become the unencumbered property of her personal representatives.

The defendant contended that the real agreement with the Bailey Co. was that the obligation should be canceled in case of the death, not of Mrs. Bastifell, who purchased the piano, but of her husband, out of whose earnings the installments were to be paid. It is evident that the certificate was signed and delivered subsequently to the consummation of the exchange, though the agreement, whatever its terms, was made at the time.

The case, as before stated, was originally brought before a justice of the peace, who when confronted with the certificate, ruled against the defendant’s contention because, as he said, it varied the terms of the written agreement. No exception was then reserved, nor was any proper offer made to prove the alleged oral agreement made between the parties at the time of the exchange of pianos; and though it may well be true, if we understand the situation, that the evidence was admissible, still the error is not properly presented in the record before us.

But, it is urged further on behalf of Mrs. Bastifell, if the justice was right in ruling out this evidence, the defendant’s contention that the certificate or agreement should bo reformed and construed in accordance with the actual meaning and intent of the parties, presented an equitable defense which made it the duty of the justice to dismiss the case and permit it to be brought in a forum which could adjudicate equitable issues.

We do not understand that this is the proper practice.

If a reformation of the certificate were • required to enable the defendant to make his proper defense, he must bring his action to reform it in the only forum which has cognizance of that matter, to-wit, the court of common pleas. There, pending the action, an order temporarily restraining the prosecution of the replevin suit could be had. Manifestly, as pointed out at the hearing, if the justice had dismissed the action, it being for property valued at less than $100, we will say, and a new action had been brought in the court of common pleas, the petition in replevin would there have been demurrable because it was below the jurisdiction of the court of common pleas, and the plaintiff, having been thrown out of the justice court, would then be thrown out of the court of common pleas, as well.

We see no error in the record before us and the judgment is affirmed.

Marvin and Winch, JJ., concur.


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    CONSTITUTIONAL LAW — FRAUD—HEALTH
    [Cuyahoga (8th) Circuit Court,
    November 28, 1910.]
    Henry, Marvin and Winch, JJ.
    State of Ohio v. William H. Doyle.
    Milk Bottle Act Held Constitutional.
    The act of May 9, 1908 (99 O. L., 454), to regulate the filling and refilling of milk bottles and glass Jars, is constitutional.
    Error.

      Myers & Green and J. A. Cline, for plaintiff in error.

      Seidman & Seidman, for defendant in error.
   HENRY, J.

The defendant in error was convicted before a police justice of Cleveland Heights village of having violated Sec. 1 of act 99 O. L. 454 (Sec. 13169 G. C.) to regulate the filling and refilling of -01111: bottles in glass jars. Said act is as follows:

Section 1. “It shall be unlawful to fill or refill, with milk, cream or other milk product, any glass jar or bottle having the name of any person, firm or corporation blown therein, with intent to sell or vend such milk, cream or other milk product, provided, that the provisions of this section shall not extend to the person, firm or corporation whose name is blown in such glass jar or bottle, or a duly authorized agent or employe thereof.
11 Section 2. It shall be unlawful to fill or refill, with milk, cream or other milk product, any glass jar or bottle, with intent to sell or vend such milk, cream or other milk product, unless such glass jar. or bottle be first thoroughly cleansed aud sterilized. (See. 12730 G. C.)
“Section 3. Any person or persons guilty of violating the provisions of the preceding sections of this act, shall be fined not more than one hundred dollars.” (Sec. 12730 G. C.)

Upon petition in error the eourt of common pleas reversed the judgment of conviction and discharged the plaintiff in error, upon the ground that said act is unconstitutional and void. This ruling was evidently based upon State v. Schmuck, 77 Ohio St. 438 [83 N. E. 797; 14 L. R. A. (N. S.) 1128; 122 Am. St. 527], in which it was held:

“Sections 4364-42, 4364-43, 4364-44 and 4364-45, E. S., making it a crime.to have in possession for use or sale certain bottles or other vessels without the written consent of the owner, and providing for search warrant to seize and restore such property to the owner, are invalid, being in conflict with Art. 1, Secs. 1,14 and 19 of the constitution of Ohio.”

It will be noted, however, that the court in its opinion by Price, J., observes at page. 454:

It is manifest that the general public has not been offended by the commission of the act alleged in the indictment, nor does the statute in question make- criminal any act in which the general public is concerned.”

In the case at bar it is contended that Secs. 2 and 3 of the act above quoted are obnoxious to any constitutional limitation. But Sec. 1, it was successfully urged below, is unconstitutional for the same reasons that were assigned to State v. Schmuck, supra.

It will be observed that the act now under consideration does not require that milk shall be sold only in glass jars and bottles having the name of the vendor blown, therein. The requirement made by the legislature is rather that such receptacles so marked shall not be used for the vending of milk by anyone else. The act does not prohibit the use of bottles with other people’s names blown therein for purposes other than the vending of milk. The sole object of the legislature seems to be that no milk dealer shall be permitted to use a glass receptacle bearing the name of any person, firm or corporation, other than the vendor, or his principal, to the end that the public may not be misled or deceived into the belief that this important food product, extremely liable, as it is, to be tainted with germs of disease, is being marketed by a known and responsible dealer, when the contrary is the fact.

If purchasers of milk choose to patronize anonymous dealers, they are, so far as this act is concerned, at liberty to do so; but. if they desire to patronize only ones of established reputation, the legislature has provided against such precaution being defeated by deceit and misrepresentation in the use of bottles bearing the name of another than the actual vendor.

This, we think, is an entirely proper use of the police power of the state to promote the public health and safety, and in this respect the case is to be sharply distinguished from State v. Schmuck, supra.

Even if we were in doubt in regard to the correctness of our view, as above stated, we are still mindful of the salutary rule which requires, where the constitutionality of any statute is in question, that courts are not to declare statutes unconstitutional unless they are palpably irreconcilable with the fundamental law. We are bound to resolve our doubts, if we have any in this regard, in favor of the validity of the act, upon which this prosecution is based.

The judgment of the court of common pleas is therefore reversed and that of the police justice is affirmed.

Marvin and Winch, JJ., concur.


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    COURTS — JUDICIAL SALES
    [Cuyahoga (8th) Circuit Court,
    December 19, 1910.]
    Henry, Marvin and Winch, JJ.
    Ruth C. Robinson v. S. D. Dunn.
    Validity of Title to Property Sold by Order of the Probate Court.
    The probate courts of this state are courts of record, competent to decide on their own jurisdiction and exercise it to final judgment. Such court’s records import absolute verity, and no party to any proper proceeding therein can in any collateral proceeding, by impeaching the truth of its findings, challenge its jurisdiction to adjudge that he was duly served with proper notice and to award relief accordingly.
    Error.

      F. & J. Budin and H. C. Mason, for plaintiff in error.

      Estep <& Gott, for defendant in error.'
   HENRY, J.

The parties to this proceeding in error stand as they stood below. There the action was brought to establish plaintiff’s title to an undivided one-third interest in certain Cleveland residence property and to compel defendant to account for the rents and profits thereof. The sole question here challenges the validity of certain probate court proceedings whereby plaintiff in error’s title is claimed to have been divested through a statutory sale made without notice to her, while she was an infant and a resident of British America.

The probate court record and files in that proceeding were received in evidence in this case, and the only evidence now discoverable of the kind of notice, if any, which was given to the plaintiff in error, of the pendency of said proceeding in the probate court, is the affidavit of an attorney that he “sent” her a letter, which he quotes in full. But the probate court journal shows that “the court being fully advised in the premises, finds that all parties defendant have had due notice of this action and of the substance and object of the petition, or have waived notice and voluntarily entered their appearance in the case.” For aught we know, the court may have had abundant evidence of service of notice on the plaintiff in error besides the said affidavit. The probate courts of this state are courts of record competent to decide on their own jurisdiction and exercise it to final judgment. Such a court’s records import absolute verity; and no party to any proper proceeding therein can in a collateral proceeding by impeaching the truth of its findings, challenge its jurisdiction to adjudge that he was duly served with proper notice and to award relief accordingly. Cincinnati, S. & C. Ry. v. Belle Center, 48 Ohio St., 273 [27 N. E. 464].

The judgment is affirmed.

Marvin and Winch, JJ., concur.


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    LIBEL
    [Cuyahoga (8th) Circuit Court,
    December 19, 1910.]
    Henry, Marvin and Winch, JJ.

      Harriet Hunt v. Meridian Printing Co.
    1. Question of Libel, per se, is for Court.
    When in an action for libel, no special damages are alleged, the article complained of is either a libel per se, or it is not a libel at all, and this is a question for the court.
    2. Classes of Libel per se, Defined.
    Labels per se are of three classes: (1) imputing an indictable offense, involving moral turpitude or infamous punishment; (2) imputing a contagious or offensive disease or condition, tending to ostracize; (3) tending to injure one in one’s occupation.
    3. Publication not Warranting Imputation of Criminality Alleged not Libelous.
    If a publication does not warrant the imputation of criminality, placed upon it by the petition, it is not libelous.
    4» Petulant Destruction of Trifling Property not Crime Involving Infamous Turpitude.
    The petulant destruction of another’s property of trifling worth is not a crime involving infamous turpitude or punishment.
    5. Imputing Destruction of Court Records is Libelous per se as Injuring in Occupation.
    It is the duty of a stenographer to take proper care of and not to destroy valuable records and papers committed to her custody in the course of her employment as such. To impute a contrary course of conduct to her tends to injure her in her occupation, and is libelous per se.

      Charles F. Morgan, for plaintiff in error.

      Gage, Wilbur & Williams, for defendant in error.

      Affirmed no opinion, Meridian Printing Co. v. Hunt, 87 Ohio St. 522.

   HENRY, J.

The parties stand as they stood below. The action was libel there. The newspaper article complained of is as follows:

“Strike Against Order to Leave.
“Court Stenographers Refuse to Accept Discharge.
‘ ‘ Twelve judges of the common pleas court do not know that they have another strike on their hands. The strikers, two in number, neglected to inform them of their stand. Couriers went back and forth exchanging news of the trouble Friday.
“ ‘We do not know that we have been discharged by the judges,’ said Miss Harriet Hunt, court stenographer, under the title of court constable (until last Wednesday). Miss Margaret Kane nodded her approval of the declaration.
“ ‘We have no official stenographers or constables,’ echo all the judges. ‘The two we had were discharged Wednesday. Their pay stopped at once. That goes. ’
“But the constables have not gone. They were discharged because they went oh strike — refused to take the testimony in the Holden murder case. Now they have declared another strike. They refused to be discharged through the newspapers.
“But the latest strike is not a walkout. To the contrary, as the stenogs are still holding forth in the official constables’ office on the third floor of the old court house.
“Word eaime to one of the judges Thursday that the ex-officials were occupying themselves, destroying papers and records in their possession. ‘Those papers are county property and must be accounted for’ said that particular judge. No names are to be mentioned.
“Journal clerk Burke was instructed at noon Thursday to mail the strikers a copy of the journal entry made in their case.”

The innuendo, among other things, charge that the next to the last paragraph falsely and maliciously attributes to plaintiff the commission of “the crime of malicious destruction of property not her own;” and the petition further alleges that:

“Said entire article, as a whole, and each part thereof, separately as_ above set forth, is a false, malicious and brutal libel, upon plaintiff and published of her, both individually as a lady, and in her business of stenographer.”

The petition does not, however, lay any special damages, but prays generally for “judgment for damages against defendant in the sum of $25,000.” The article is therefore a libel per se, or it is not a libel at all; and this is a question for the court. Mauk v. Brundage, 68 Ohio St. 89 [67 N. E. 152].

The court below sustained a general demurrer to the petition and rendered final judgment for the defendant. The plaintiff seeks here to reverse this judgment.

Libels per se embrace words of but three classes, (1) Imputing an indictable offense, involving moral turpitude or infamous punishment; (2) Imputing a contagious or offensive disease, or condition tending to ostracize; or (3) Tending to injure one in one’s occupation.

The first and last of these are in question-here. As to the first:

“By this rule the infamy of the offense or of the punishment constitutes the test whether the words are actionable, when an indictable offense is charged upon the plaintiff. * * # The nature and turpitude of the offense charged are the criteria by which to decide whether the injury is such as to be the foundation of an action. A charge of assault and battery — of fighting at fisticuffs — of refusing to aid an officer to arrest criminals, resisting an officer in the execution of process, keeping a ferry or tavern without license, and others of the like class, though subject to indictment and punishment, and of themselves reprehensible; as violations of positive law, do not imply that degree of moral depravity which will sustain an action of slander for words, spoken imputing such offense. ’ ’ Dial v. Hotter, 6 Ohio St. 228, 241-2.

Words libelous per se, as imputing criminality to anyone “must first, be such as charge him with an indictable offense; and, second, the offense charged must involve a high degree of moral turpitude, or subject the offender to infamous punishment.” Hollingsworth v. Shaw, 19 Ohio St. 430, 433 [2 Am. Rep. 411].

The crime of malicious destruction of property and its punishment are defined as follows by Sec. 6863 R. S. (Sec. 12477 G. G.):

“Whoever maliciously destroys or injures property not his own, if the value of the property destroyed, or the injury done is one hundred dollars or more, shall be imprisoned in the penitentiary not less than one year nor more than seven years, or, if the value is less than that sum, shall be fined not more than five hundred dollars or imprisoned not more than thirty days, or both.”

The crime of maliciously destroying public records or papers, and its punishment, are defined by Sec. 7095 R. S. (See. Í3088 G. C.) :

“Whoever maliciously alters, defaces, mutilates, destroys abstracts or conceals the whole or. part of a record, authorized to be made by law, of or pertaining to a court, justice of the peace or a state, county, township or municipal office or officer, or other public record authorized by law or a paper or writing duly filed with, in or by such court, office or officer, shall be fined' not more than three hundred dollars or imprisoned not more than three months, or both. ’ ’

The petition, by its innuendo, clearly founds the imputation of criminality upon the first of these two offenses, whereas the publication as clearly imputes the second, if it imputes either. Now, the innuendo may elucidate, construe and apply (and hence, of course, restrict), but it can not enlarge, the meaning of a libel State v. Smily, 37 Ohio St. 34, 35. If then, the publication does not warrant such construction as the petition seeks to put upon it, viz., an imputation of “the crime of malicious destruction of property not her own,” made punishable by Sec. 6863 R. S. (Sec. 12477 G. C.), it follows that the publication is not libelous for imputing criminality. The facts alleged in the petition for it shows that the publication did not impute to plaintiff the crime which the pleader alleges and relies on Hamm v. Wickline, 26 Ohio St. 83. Moreover, it fails to allege whether the publication imputed to plaintiff the destruction of property worth more or property worth less than one hundred dollars'. These indeed are kindred offenses; but the punishment of imprisonment in the penitentiary is necessarily visited upon anyone guilty of the one, whereas only a fine and thirty days’ imprisonment in jail is the maximum penalty for the latter offense. Infamy and turpitude are very differently related to the two cases respectively, and it can hardly be claimed that the petulant destruction of another’s property of trifling worth is a crime involving infamous turpitude or punishment.

If the charge of criminality relied on by the pleader were, as it should manifestly have been, the violation of Sec. 7095 R. S. (Sec. 13088 G. C.), prohibiting the malicious destruction of public records or papers, the maximum penalty is $300 fine and three months ’ imprisonment in jail. No penitentiary sentence is possible, Sec. 6794 R. S. Sec. 12370 G. C.). The punishment is therefore not infamous. The offense may or may not involve great moral turpitude; but there is nothing whatever in the libel itself, or in the allegations of the petition, to indicate that the records and papers said to have been destroyed were of any particular importance, or such as, if necessary, could not readily be duplicated; and if they were not, their destruction surely involved no such “high degree of moral turpitude” as the law of libel contemplates.

We hold, therefore, that this alleged libel is not such per se so far as imputing criminality is concerned.

' It is otherwise, however, as regards the claim that it is of a nature tending to injure plaintiff in her business as a stenographer. It is the duty of a stenographer to take proper care of and not to destroy valuable records and papers committed to her custody in the course of her employment as such. To impute a contrary course of conduct to a stenographer certainly tends as such to injure him, or her, in the pursuit of that occupation as to impute drunkenness to a clergyman. The injury is the same in kind if not necessarily so in degree Hayner v. Cowden, 27 Ohio St. 292 [22 Am. Rep. 303]. In this, and in this only, do we think the petition states a cause of action. For error in sustaining the demurrer to the petition, the judgment is reversed and the cause remanded.

Marvin and Winch, JJ., concur.


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    APPEALS
    [Cuyahoga (8th) Circuit Court,
    December 26, 1910.]
    Henry, Marvin and Winch, JJ.
    Charlotte M. Phillips v. Provident Life & T. Co. et al.
    Dismissal of Appeal by Appellant to Prejudice of Another Party Set Aside.
    The dismissal of an appeal by the appellant will be set aside at the direction of the court, if it appears that any other party to the appealed case will be unreasonably or unfairly prejudiced by such dismissal.
    Appeal.

      John J. Sullivan, for plaintiff.

      A. A. Lamson and Stearns, Chamberlain & Boyan, for defendant.
   HENRY, J.

A motion is interposed here by the plaintiff in this appeal to' vacate- the order of dismissal entered upon application by the plaintiff at a former day in the present term of court. That order was made without notice to the plaintiff, appellee, upon the theory that the defendant, appellant, had the absolute right to dismiss his appeal at will. The plaintiff now urges that great injustice will be done her if this practice is allowed to prevail in the ease before us. The action was originally commenced by her in the court of common pleas to recover the amount of a policy of insurance upon her husband’s life, issued to the latter in his lifetime by the defendant, the Provident Life & Trust Co. The appellant here was made codefendant, because the plaintiff since her husband’s death had assigned said policy to the Glen-ville Bank, of which the appellant is the trustee in insolvency. In order to recover from the insurer, the plaintiff is obliged, of course, to have her assignment set aside. This she seeks to do upon the ground that the assignment was fraudulently procured. Upon the trial below she failed to obtain this prerequisite relief, and judgment was had upon the policy assigned, as aforesaid, by her to the Glenville Bank, in favor of the latter and against the defendant, the Provident Life & Trust Co.

For some reason not fully explained, the trustee of the Glenville Bank saw fit to appeal from this judgment generally. This he did under the statute, without having to file any appeal bond. Upon further investigation he concluded- that he could gain nothing by his appeal and thereupon he dismissed the same here in open court, and entry was made accordingly. Meanwhile, however, the time within which the plaintiff might have appealed has elapsed. She apparently relied upon the appeal taken by the defendant trustee, and hence took no steps to perfect an independent appeal on her part. She desires a review of the case on appeal by this court, but if the appellant’s dismissal of his appeal is allowed to stand she is left without remedy.

We have re-examined the right of an appellant voluntarily to dismiss his appeal. The subject was under consideration by this court in the case of Monjou v. Local No. 106 Hotel and Restaurant Employes, etc., decided December 16, 1907 (not reported) . We there said in the opinion by Winch, J.:

“The question in the precise form we have it here, has never been passed upon in the reported cases. The practice, however, seepms to have the sanction of the Supreme Court in the case of Irwin v. Lloyd, 65 O. S. 55 [61 N. E. 157].
“However, upon the claim of the plaintiff that he would be greatly prejudiced by a dismissal of the appeal in this court, and because of the lack of authorities upon the proposition first considered, we have examined the order made by the common pleas court and are prepared to say that if the defendants are satisfied with it, the plaintiff has no cause to complain.

The weight of authority in other jurisdictions seems to be to the effect that the right of an appellant voluntarily to dismiss his own appeal is qualified, in that the right can be exercised only in the discretion of the court, and this' discretion is directed in its exercise to the determination of the question whether or not any other party to the appeal will be unreasonably or unfairly prejudiced by such dismissal.

Inasmuch as the practice in this state has not been clearly settled to the contrary by the Supreme Court, we shall vacate the order of dismissal hitherto entered herein because of the manifest prejudice which will occur to Mrs. Phillips if the appellant trustee is permitted to abandon his appeal.

Motion granted and order of dismissal vacated.

Marvin and Winch, JJ., concur.


text:
    BREACH OF MARRIAGE PROMISE
    [Cuyahoga (8th) Circuit Court,
    December 27, 1910.]
    Henry, Marvin and Winch, JJ.
    David Carr v. Mary Dovlosky.
    Conversations between Parties after Marriage of Defendant to Another, His Admissions of Mutual Affection and Declarations of Plaintiff, Competent Evidence.
    In a suit for damages for breach of promise of marriage, evidence may be received of conversations between the parties after the marriage of the defendant to another; of his admissions to a third party of the mutual affection of the parties, and of declarations of the plaintiff made when she was about to leave her employment that she was leaving so as to prepare to get married.
    Error.

      Foran & Powell, for plaintiff in error.

      Kerruish & Kerruish, for defendant in error.
   HENRY, J.

The parties stand in the relation opposite to that in which they stood below. The action there was for damages for breach of promise of marriage, and the plaintiff below recovered a verdict and judgment.

Error is assigned upon the admission of evidence, for the plaintiff below, of conversations between the parties after the marriage of the defendant below to another woman; of his admission to a third party concerning the mutual affection of the parties; and of the declaration of the plaintiff below to a third party, from whom she was in the habit of buying meats for the restaurant where she was employed, that she was about to leave said employment and get married. We have scrutinized each of these assignments separately without finding error.

The charge is excepted to for what the court said about implied contract and punitive damages; but upon examination we discern no error in the instructions given or refused.

The judgment is affirmed.

Marvin and Winch, JJ., concur.