text:
    PAYMENT ORDERED TO BENEFICIARY INTENDED BY THE DECEASED.
    Circuit Court of Cuyahoga County.
    Jane Abernethy v. Supreme Council of the Association of Catholic Mutual Benefit et al.
    Decided, January 25, 1909.

      Mutual Benefit Association — Change in Beneficiary — Inability to Comply with Rules — Intention of Member.

    Where a mutual benefit association pays into court the fund due the beneficiary of one of its deceased members with the statement that there are rival claimants to the fund and asks the court to determine to which claimant it shall be paid, the fund will be ordered paid to the beneficiary clearly intended by the deceased member, though by irregular designation, circumstances over which he had no control and his death preventing a change in beneficiaries strictly in accord with the rules of the association.

      Kerruish & Kerruish, for plaintifi in error.

      Herman Preusser and Walter D. Meals, contra.
    Metcalfe, J. (of the Seventh Circuit, sitting in place of Henry J.) ; Winch, J., and Marvin, J., concur.
   Defendant in error, plaintiff below, began this action by filing in the common pleas court a. paper called a petition for an inter-pleader, to which Jane Abernethy, Jennie McCormick and Edna McCormick were made parties defendant.

The facts in this case, as far as it is necessary to state them in order to understand the issues, are, in brief, about as follows:

The defendant in error, as its name indicates, is a mutual insurance association. Charles E. Abernethy was a member in good standing of said association, holding a benefit certificate therein for one thousand dollars, which became due and payable in sixty days after his death, on proper proofs and notice of death. Charles Abernethy died June 3, 1905. Jane A. Abernethy was his wife, and was named as beneficiary in the certificate. Jennie McCormick was a sister of Charles, and Edna McCormick was his niece. Shortly before his death Charles E. Abernethy attempted to revoke the direction in the benefit certificate, as to whom payment should be made ,at his death, by the execution of'the following instrument:

“Cleveland, O., June 1, 1905.
‘ ‘ To the Catholic Mutual Benefit Association, Cathedral Branch, No. 33, Roll 148.
“I, Charles E. Abernethy, to whom a certificate was issued in said beneficial order, hereby revoke my former direction as to the payment of the beneficiary fund at my death, and now authorize and direct such payment to be made to my sister, Mrs. Jennie McCormick, residing at 59 Delaware street in the city of Cleveland, Ohio, and to Miss Edna McCormick, my niece, daughter of Mrs. Jennie McCormick, above referred to.
“Witness my hand the 1st day of June, 1905.
“Charles A. Abernethy.
{i Witness *
“J. J. Wagner, 647 St. Clair St.
“Jane A. Abernethy, 59 Delaware street.”

The association claimed that- it was unable to decide to whom the mortuary benefit belonged, by reason of the conflicting claims of Jane Abernethy and the McCormicks, so paid the money into court and asked that the defendants be required to set forth their respéetive claims to the money, which they did by way of cross-petition, and the only issues to be determined arise under the allegations of their several cross-petitions and the answers and replies thereto.

Jane Abernethy claimed,the money by virtue of her designation as beneficiary in the original certificate. 'Jennie McCormick and Edna McCormick claimed it by virtue of the instrument executed by Charles Abernethy June 1, 1905. So that the only question for this court to determine is, did the instrument executed by Charles Abernethy before his death change the beneficiary from Jane A. Abernathy, named in the benefit certificate, to Jennie and Edna McCormick?

The cross-petition of Jane Abernethy avers that Charles Abernethy for some tinie before his death had been addicted to the intemperate use of intoxicating liquors; that he had for several years contributed but little to her support; that he had become feeble bodily and mentally; that he had without cause acquired an aversion to her; that his sisters and brothers had stirred him up to strife, and had by undue means and influence forced him into signing several transfers of property, among which was the instrument in question. It is not necessary for us to go over all the evidence bearing upon these propositions. There is evidence tending to show failing mental powers on the part of Charles Abernethy; there is evidence of excessive use of intoxicants, and that he seemed to have an aversion to his wife, so far as appears from the evidence, without cause. But there is no evidence tending to show undue influence, .and the mental weakness shown-is entirely insufficient to avoid s.aid contract on that account.

Section 5 of the defendant’s beneficiary fund law provides that “a member may at any time change, alter or amend the designation of person or persons to whom the benefit named in the certificate is payable, by surrendering said certificate, after having filed or caused to be filed a blank for that purpose on the back of the same, providing for new designation (such designation'must be within the class or classes of persons mentioned in Section 13 of the beneficiary fund law), and attach his signature to it.”

It was the duty of the secretary of the members branch to attach the seal of his branch to the certificate and forward it to the grand secretary, if in his immediate jurisdiction, .and upon receipt thereof by the grand secretary, it became his duty to issue a new certificate.

It is conceded that Jennie McCormick and Edna McCormick come within the designation of Section 13 of’the mortuary fund law as persons who may be made beneficiaries. None of the provisions of the .above Section 5 were complied with literally. The benefit certificate was in the hands of Jane Abernethy, so that the new designation could not be made on the back thereof, and the assignment was made on a separate piece of paper, which was forwarded to the grand secretary, but before a new certificate could be. issued, possibly before the assignment ' reached him, Charles Abernethy died.

That Charles Abernethy intended to change the beneficiary in said certificate is perfectly clear; that he had a right to do so is equally clear. It is insisted, however, that inasmuch as Charles Abernethy failed to complete the assignment or designation of a new beneficiary before he died and the forms prescribed by-the above quoted Section 5 were not complied with, that such designation never took effect.

The parties to the contract of insurance are the insurance association and Charles E. Abernethy. Jane Abernethy had no vested interest in the benefit fund while Charles Abernethy lived; her interest only vested when he died. The law of the association relating to change of beneficiary is for the benefit of the insurance association. The association had an undoubted right to waive ,a literal compliance with its terms. The association is not claiming anything in this case because of such failure to comply with its terms. By starting this proceeding and asking that the controversy be settled between Jane Abernethy and the McCormicks, it seems to recognize the fact that the assignment by Charles Abernethy might be complete. However that -may be,' we think that under the law Charles Abernethy having, by the execution of this instrument expressed his intention to change the beneficiary, and having done all he could do to carry out the provisions of the law, his intentions, so expressed, should be carried out. The fact that he died before the formalities required- by the law of the association were completed, does not affect the result. The execution of'the instrument by him was the essential thing to effect the change of beneficiary; the forwarding of the instrument and the execution of a new benefit certificate were matters of detail. The issuing of a new certificate would have been a vain thing after his death.

The assignment was received by the association. The only objection that could have been made to it was the failure to surrender the benefit certificate. But the benefit certificate was in the possession of Jane Abernethy so that it could not be surrendered.

In the ease of Supreme Conclave, Royal Adelphia, v. Cappella, 41 Fed. Rep., p. 1, it is said:

‘ ‘ In eases of policies of insurance or benefit certificates issued by mutual benefit societies, the beneficiary has no vested interest in the certificate until the death of the insured member. Up to this time the insured may change his designation of beneficiary at will, and against the consent of such beneficiary.
“The general rule that the insured is bound to make such change of beneficiary in the manner pointed out by the policy and by-laws of the association is subject to three exceptions: (1) If the society has waived a strict compliance with its own rules, and, in pursuance of a request of the insured to change his beneficiary, has issued a new certificate, the original beneficiary will not be heard to complain that the course indicated by the regulations was not pursued-. (2). If it be beyond the power of the insured to comply literally with the regulations a court of equity will treat the change as having been legally made. (3)." If the insured has pursued the course pointed out by the laws of the association, and has done all in his power to change the beneficiary, but, before the new certificate is actually issued, he dies, a court of equity will treat such certificate as having been issued.”

In Railroad Company v. Wolfe, a member of a railroad benefit association held a certificate in which his wife was named as beneficiary. The wife died and he substituted her sister in the manner provided by the laws of the association. He after-wards married after having made an ante-nuptial agreement to designate his wife as such beneficiary. He died, however, before making the substitution, and the court held that the wife and not the sister, was to be treated as the beneficiary. Also that the association having paid the money into court .and a^ked to have the matter settled between the contesting claimants, had waived its rights.

In 15 L. R. A., 350, it is said:

“A designation may be made by will of a new beneficiary to receive the fund to become due by reason of .a certificate of membership in a mutual benefit society, although the rules of the order provided for a change by endorsement on the back of the certificate, where through no fault of the member a certificate has become lost or mislaid so that a search for it, at h-is request, proves unavailing.”

The cases cited are typically bearing upon the issues involved in this case. It is needless to multiply the citation of authorities.

While it may be conceded that the association might have insisted upon a compliance with its rules, yet it did not do so. It began this proceeding, paid the money into court and withdrew-from the contest, saying, in effect, to the parties, fight it out between yourselves. We think this was a complete waiver of all objection to any failure to observe the formalities of the law of the association in the designation of the new beneficiary, and Charles Abernethy having done all that he could to effect the change, his clearly expressed intention to substitute his sister and niece for his wife as the object of his bounty will be carried out.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    ACTION FOR. REFORMATION OF DEED OR MORTGAGE.
    Circuit Court of Cuyahoga County.
    Eugene Schawzenbash v. Emma B. Assmus et al.
    Decided, May 17, 1909.

      Appeal — Ejectment on Mortgage — Statute oj Limitations.

    1. An action for the reformation of a deed or mortgage and recovery • of the possession of the premises therein described,’ presents an issue not triable to a jury, and is appealable.
    2. In an action in ejectment brought by the assignee of a mortgage which was not recorded until long after condition broken, the statute of limitations begins to run upon maturity of the note secured by the mortgage.

      A. J. Martin, for plaintiff in error.

      H. L. Smith, contra.
    Taggart, J. (sitting in place of Marvin, J.) ; Winch, J., and Henry, J., concur.
   This case is in this court by appeal from the court of common pleas, and the first question that is presented is upon the motion of the plaintiff to dismiss the appeal herein for the reason that the case is not appealable under the statute.

It is contended on behalf of this motion that this is an action for the recovery of specific real property and that under Section 5130, Revised Statutes, the same is triable to a jury unless a jury be waived. That while the second amended petition seeks a reformation of the mortgage which the plaintiff is asserting in respect to lot 65. no reformation is sought by the action in respect to lot, or a portion of lot 64. But as we construe the description contained in the petition which, it is alleged, is a correct description of the premises, the manifest intention was to describe one parcel or lot of land and not two distinct parcels; therefore, it was necessary to have a correction of this description through the aid of equity before the plaintiff could secure possession of this real estate. That being the case, we think the cáse is ruled by the case of Rowland v. Entrekin, 27 Ohio St., 47:

‘ ‘ In a civil action, where the facts stated in the petition, and the nature of the relief primarily demanded are within the sole jurisdiction of a court- of equity, neither party can, of right, demand that the issues of fact made by the pleadings touching the plaintiff’s right to such relief, shall be tried by a jury; and, therefore, after final judgment, adverse to the plaintiff, in the court of common pleas, he may .appeal such a case to the district court.
“And this right of appeal is not affected by the fact that the plaintiff also demands a money judgment by way of damages to which he may incidentally be entitled, as .a result of his obtaining the equitable relief sought.”

See also the case of Ellsworth v. Holcomb, 28 O. S., 66 and 69.

The motion to dismiss the appeal is overruled, with exceptions.

The case is also submitted upon the pleadings. The answer to the second amended petition, among other things, pleads the bar of the statute of limitations; that more than twenty-one years have elapsed since the right of action accrued upon said mortgage.

It is claimed by the counsel for plaintiff herein that while this mortgage was executed in 1875, that it was not recorded until 1896, and that as to third parties, it only took effect from the date of the filing of the same with the recorder of the county.

This is not in accord with our views of the case, or with the authorities as we understand them.

The plaintiff seeks to recover possession of this property under this mortgage by reason of the fact of the condition therein being broken and that he is entitled to recover the possession of the premises described therein.

It appears from the pleadings that the mortgage was given in 1875 to secure a note which became due in 1876. At that time the condition contained in the mortgage was broken and the right of the mortgagee to bring ejectment thereby accrued. The statute of limitations' at once began to run and having once commenced to run nothing appears in this record that would stop the running of the statute.

In the ease of Bradfield el al v. Hale et al, 67 O. S., 316, the court lays down the rule, as follows:

“As between the mortgagor and mortgagee, in a mortgage on real property, after condition broken, the legal title to the mortgage premises is in the mortgagee, and he may elect, either to sue for foreclosure and sale, or bring ejectment to recover possession of the premises.
“If his action is in ejectment, the statutory bar of fifteen years as provided in Section 4980, Revised Statutes, does not apply. The bar is such case is twenty-one years as provided in Section 4977, Revised Statutes.”

By the assignment to the plaintiff by the original mortgagee no higher rights were derived by the plaintiff than existed in said mortgagee, and the statute having commenced, to run as against an action in ejectment against said mortgagee the same continued against the plaintiff herein, and upon the pleadings herein the defendant was entitled to judgment.

The judgment of the court is that the defendants herein should recover of the plaintiff their costs herein expended, taxed at $---, and plaintiff pay his own costs. Exceptions will be noted.


text:
    OPTION OF PURCHASE DEFEATED BY IMPROVEMENTS MADE ON THE PROPERTY.
    Circuit Court of Williams County.
    Rhinold Bankey v. J. E. Manon.
    Decided, October 31, 1911.

      Specific Performance — Refused Where Enforcement Would be Harsh and Inequitable.

    A decree for specific performance will not be granted, where to compel performance would be extremely harsh, oppressive and inequitable by reason of the fact that the option of purchase was not exercised by the lessee until the lessor, at the request of the lessee, had put in’ improvements which doubled both the market and rental value of the property, and double rental was paid by the lessee until about the time of the termination of the lease when an attempt was made to exercise the option of purchase.

      John E. Schrider and Newcomer & Oebhard, for plaintiff.

      Bowersox <& Peck, contra.
    Richards, J.; Wildman, J., and Kinkade, J., concur.
   This case is pending in this court on appeal from the common pleas court. It is an action to enforce the specific performance of a contract containing an option to purchase certain real estate, situated in Williams Center, this county. It appears from the evidence that the property was leased by J. E. Manon to certain lessees, and that the lessees assigned to the plaintiff, Rhinold Bankey. This lease was executed on November 1, 1905, and was for one year with the privilege of five, and it contains a clause giving the right of purchase for the sum of $700 at any time while the contract was in force. The rental reserved in the lease is five dollars per month. Some time after the execution of the lease and after possession was taken under it, the parties agreed to a modification, at least to the extent that the owner was to erect an addition to the building on the premises, and that the rent should be increased to $11 per month. The improvements were made by the owner, and are conceded by the plaintiff in his reply to be of the value of at least $300. We find from the evidence that the value of these improvements, so made by the defendant, is at least the sum of $700. The increased rental was paid by the plaintiff until the expiration of the lease, or substantially to that date. The plaintiff has elected to exercise the option contained in the lease, and asks from this court that the defendant be required to specifically perform by conveying the premises to him upon payment of the sum of $700. We think it entirely clear from the evidence that these improvements were made by the defendant, and the value of the premises enhanced accordingly, under circumstances which show that the defendant did not understand that he was still bound, after the change in the rental price and the completion of the improvements, to convey the premises to the plaintiff for the price named in the option. He had good reason to believe and apparently did believe that the substantial improvements made which at least doubled the value of the property, coupled with the change of the rent from $5 per month to $11 per month released him from the option in the lease. Under the circumstances existing in this case the plaintiff must not expect a court of equity to compel the transfer to him of property worth at least $1,400 upon the payment by him of $700. The agreed rental value of $11 per month is equal to $132 per year, which would amount to an income of 8% on a valuation of $1,650. The later rent paid amounts to nearly 20% on the sum of $700, which is the amount offered by the plaintiff, in return for which he demands the conveyance of these premises. It is clearly a demand that a court of equity should do that which is inequitable. We call attention to the following cases: City of Tiffin v. Shawhan, 43 O. S., 178; Hughes v. Roth, 18 C. C. R., 804.

To compel the specific performance of the agreement -contained in the lease would be extremely harsh, oppressive and inequitable. The defendant in this case filed a motion for judgment upon the pleadings in his favor, and we think he is not entitled to have the same granted. Upon the merits of the case, however, we find for the defendant, and refuse specific performance.


text:
    ERRONEOUS CHARGE ON A MINOR ISSUE.
    Circuit Court of Cuyahoga County.
    E. Shriver Reese v. The Mannen & Esterly Company.

    Decided, May 17, 1909.

      Charge — Several Issues and Erroneous Charge as to One — Prejudicial Error, When.

    Where there are several distinct issues in a case, the overruling of a motion to properly direct the jury upon one of them is not prejudicial, unless such motion was in regard to a controlling issue in the case; whether such issue might or might not be controlling, depends upon the issues before the jury.

      E. J. Pinney, for plaintiff in error.

      Smith, Taft & Arter, contra.
    Taggart, J. (sitting in place of Marvin, J.) ; Winch, J., and Henry, J., concur.

       Affirmed by the Supreme Court without opinion, Reese v. Mannen & Esterly Co., 83 Ohio State, 448.

   The only error complained of in oral argument by counsel for plaintiff in error was the failure of the trial court to properly instruct the jury in respect to the durability of a furnace ‘which was involved in the case. The petition in the'common picas court was on an account for $39. The answer, in respect to the account, denied that there was $39 due the plaintiff, but admitted that there was $9 due and no more. The defendant further answered and by way of counter-claim alleged a warranty in respect to a gas furnace which he claims the plaintiff below agreed to install in his house, and as a part of said contract, warranted that said furnace would comfortably heat said house in :zero weather without crowding, and, as a further part of said contract guaranteed that said furnace was well made and of good material and would last for several years, and would not need repairing,

Plaintiff in its reply denied that there was anj*- warranty or guaranty in respect to said furnace.

Tlie bill of exceptions does not contain all the evidence that was heard in the court of common pleas. It is stated that there was only so much of the evidence brought into the bill of exceptions as would have a tendency to show the errors complained of; that is, that there was evidence introduced in behalf of the defendant below that there was a warranty or guaranty of durability, and that the failure of the court to charge in respect to the durability o£ the furnace was erroneous and prejudicial. ^

But we think, taking the charge of the court as an entirety, that the court does charge in respect to the construction and «durability of this furnace, and while it is not so clear and explicit in that regard as might be desired,, yet there was no request to the trial court to more explicitly charge the jury in that regard. The court does charge as to the words or expressions that are necessary to constitute a warranty, and this charge is as applicable to'the warranty of durability as to the warranty of efficiency on the part of the furnace to be installed, and the jury were at liberty to appropriate these instructions as to that issue in the case as well'as to the other. Tt is said that the question of the efficiency of the furnace, as to its1 heating the houses comfortably in zero weather, was abandoned by the defendant in ilie trial of the case. The bill of exceptions does not so advise us. True, the defendant himself in his testimony admits that after the second furnace was put in, the house was heated quite satisfactorily. But that admission in the trial of the ease is quite different from the abandonment of á defense filed in the case; so that, so far as the bill of exceptions.discloses, the ease-proceeded upon the defense made in the answer of the warranty of efficiency and warranty of durability and the court’s charge was upon the issues as made.

With these two claims on the part of the defendant that there was a warranty of efficiency and a warranty of durability, even assuming that the charge is not clear and .explicit in respect to the latter, yet we hold that there was no prejudicial error. The jury may have found that there was a warranty as alleged in respect 1o the heating of the house and may have found that there was no warranty in respect to the durability. The reply made an issue on both of these propositions. The verdict is a general verdict.

Where there are several distinct issues in a case, the overruling of a motion to properly direct the jury upon one of them is not prejudicial, unless such motion was in regard to a controlling issue in the case; whether such issue might or might not be controlling depends upon the issues before the jury. See Clark v. Clark, 16 C. C. Rep., 103; Beecher v. Dunlap, 52 Ohio St., 64, 65; McAllister v. Hartzell, 60 Ohio St., 69, and 23 Ohio St., 626.

Finding no error in this record to the prejudice of the plaintiff in. error, the judgment is affirmed with costs, and remanded.


text:
    PROCEEDINGS RELATING TO THE TAKING OF A DEFAULT JUDGMENT.
    Circuit Court of Cuyahoga County.
    The K. B. Company v. George Dixon.
    Decided, November 13, 1911.

      Appeal From, Justice of the Peace — Filing Petition Out of Rule — Action for Money Had and Received — Allegation of Amount Hue Specific— Proof on Default — Judgment as XJpon Default Under General Gode, 11592.

    1. In an action appealed from a justice of the peace to the common pleas court, since the latter court has power to grant leave to file a petition out of rule, it has power to take up and consider it when it is filed out of rule, without first making an order on the subject.
    2. Where a vendee of personal as well as of real property has a right, in consequence of the conduct of the vendor, to rescind, he may do so and recover back in an action for money had and received, the amount paid upon the contract.
    3. Where the allegation in a petition of the amount due is material and specific and not, in the sense in which those words are used in General Code, Section 11329, an allegation of value or damage, the action being on an implied contract lor the payment of money only, and within the exception of General Code, Section 11357, under the provisions of General Code, Section 11329, it must be controverted by answer, and if not, the court, in the exercise of its discretion, has power to render judgment without proof of the amount.
    4. General Code, Section 11592, authorizing judgment as upon default in certain cases, does not contemplate the entering of a default judgment at any time during the term after the defendant is in default for answer, as provided by General Code, Section 11383, but only when the case is reached in its order or on special assignment.

      H. A. Eangesser, for plaintiff in error.

      E. W. Bissette, contra.
    Winch, J.; -Marvin, J., and Henry, J., concur.
    Error is predicated in this action upon the refusal of the common pleas court to vacate a default judgment rendered within the term.
   The' case was originally started in a justice court, where George Dixon sued the K. B. Company for “money had and received.” He recovered judgment on January 31, 1911. The defendant appealed.

General Code, Section 10398, provides:

“The rule day for filing the petition in the court of common pleas in a case appealed from a justice of the peace shall be the third Saturday after the expiration of the time limited for filing the transcript; and the subsequent pleadings shall be filed within such times thereafter as is provided for the filing thereof in cases commenced in that court after the return day of the summons.”

Dixon should have filed a petition in the common pleas court by February 25; he did not file it until March 30, 1911. The third Saturday after that," when the answer was due, was April 15; the default judgment complained of was taken the following .Monday, April 17.

It is first claimed that the judgment is erroneous because the plaintiff did not file his petition so soon as he should have filed it. This contention is disposed of by the ruling in Parker v. Haight, 14 C. C., 548, which we follow.

^It is next claimed that the cause of action stated in the petition varies from that set up in the bill of particulars, and that it was not such an action as permitted a default without the taking of evidence.

Neither of these points is well taken. The petition set forth that the plaintiff h.ad purchased an overcoat of the defendant and paid down four dollars of the purchase price, but the defendant refused to deliver the overcoat, and the plaintiff therefor asked judgment for his four dollars. This was an action for money had and received.

It was said by Judge Hitchcock in the case of Welsh v. Welsh, 5 Ohio, 425, at page 428:

“The law is well settled that where a vendee has a right in consequence of the conduct of the vendor, to rescind, he may do it and recover back, in an action for money had and received, the amount paid upon the contract.”

That was an action concerning the sale of real estate, but the rule is the same in the case of the sale of a chattel.

Underlying this action is an implied contract; if .another has money which in equity belongs to me, the law implies a contract to pay it to me. This proposition is important, and authorizes the paraphrasing of a paragraph found on page 638 of the opinion in the case of Dallas v. Furneau, 25 O. S., 635, as follows:

‘ ‘ The allegation in the petition of the amount due is a material allegation and is not, in the sense in which those words are used in Section 11329 of the General Code, an allegation of value or damage, but is a specific .allegation of the amount due, the action being on an implied contract for the payment of money only, and within the exception of Section 11357 of the General Code, and therefore, under the provisions of Section 11329 of the General Code, must be controverted by the answer. In this case, the material allegations of the petition not having been controverted by the answer, the court, in the exercise of its discretion had. power to render the judgment without requiring proof of the amount.”

This brings us to an application of General Code, .Section 11592, which provides that when all or a part of one or more of the causes of action set out in .a pleading are 'not. put' in issue by answer, or otherwise, judgment may be taken, as upon a default.

If it is claimed that this section applies only to cases where a part of the cause or causes of action is admitted and part denied, as set forth in Weaver v. Carnahan, 37 O. S., 363, the answer is that the statute has been amended since said decision.

The plaintiff in this case, then, w,as entitled to judgment, as upon default. That does not mean that he-was entitled to a default judgment at any time during the term after the defendant was in default for answer, as provided in General Code, Section 31383, because his action was not one of those mentioned in that section, but he was entitled to judgment as upon default. when his case was reached in its order or on special assignment, as provided in General Code, Sections 11384 to 31388 inclusive..

It is claimed that this case was not reached in its order or specially assigned. The transcript does not show a special assignment ; but, as there is no bill of exceptions, we do not know that the case was not reached in its regular order. We must therefore presume that the case was not disposed of in advance of the proper time.

Judgment affirmed.


text:
    CONSTRUCTION OF A WILL.
    Circuit Court of Wood County.
    Frank White, as Administrator With the Will Annexed of the Estate of Henry Rudolph White, Deceased, v. John White et al.

    Decided, October 28, 1911.

      Wills — Determination as to the Amount the Widow of a Deceased Son Should Receive — Where the Son Died Before the Testator.

    Under the provisions of the will construed in this case, the widow of the deceased son is held to be entitled to receive the share which would have gone to the said son had he survived the testator, less the amount specially'provided to be paid by her in the codicil appended to the will after the death of said son,

      Bheinfranlc <& OhUnger and Edward Beversboclc, for plaintiff. Edgar E. Johnson and Jos. W. Lane, contra.
    Richards, J.; Wildman, J., and Kinkade, J., concur.
    Appeal from the Court of Common Pleas.

       Affirmed without opinion, White v. White, 88 Ohio State, —.

   This is an action brought for the purpose of obtaining a construction of the will of Plenry Rudolph White, deceased. • The will was executed on July 23d, 1894, on which date the testator had five children then living. The will, after making various preliminary dispositions of property, contains the following clause:

"The remainder of my estate, real and personal, shall be divided equally between my children or their heirs share and share alike.”

One of the children of the testator by the name of Henry White died intestate on June 3d, 1895, without issue, but leaving surviving him a widow, Rose White. On December 21, 1895, the testator, Plenry Rudolph White, executed a codicil to his will, which codicil contains the following language:

“The sum of $88 lawful money of the U. S. bearing interest at 6% from the first day of July, 1895, till paid shall be paid to my daughter Carolina White, her heirs or assigns,- out from the share of the inheritance of my son Henry White, deceased. The residue of said share shall be the only bequest to the heirs or assigns of said Henry White.”

Held: That under the terms and provisions of the will and codicil, the widow, Rose White, is entitled to receive the share which would have gone to her husband, Henry White, if he had survived the testator, less the sum of $88 and interest thereon" as provided in the' codicil.

This construction of the will is not changed by the extrinsic evidence offered. So much of -that evidence as tends to show the situation, circumstances and condition of the testator and the natural objects .of his bounty, is competent, the remaining portion of it we hold to be incompetent, and we cite the following cases: In re Lester’s Estate, 115 La., 1; Lincoln v. Aldrich, 149 Mass., 368; Clark v. Trustees, 3 C. C., 152.

A decree may be drawn construing the will in accordance with the views expressed in this opinion.


text:
    AS TO NOTICE TO ENDORSERS OF NON-PAYMENT AND WAIVER OF DEMAND.
    Circuit Court of Cuyahoga County.
    C. H. Salmons v. A. J. Brockett et al.
    Decided, November 13, 1911.

      Promissory Note — Waiver of Demand and Notice of Non-Payment and Dishonor.

    In an action on a primissory note waiver by evidences of notice of dishonor and non-payment and demand is not sufficiently alleged by a statement that on a day just prior to maturity of the note one of three endorsers offered a renewal note with the same endorsers for part and the note of another for the balance of the amount of the original note, with a statement that the maker of the original note could not pay it, requesting that a new note be accepted in place of the original note, which request was refused.

      Griswold.& White, for plaintiff in error.

      Judson (& Weld, contra.
    Winci-i, J.; Henry, J., and Marvin, J., concur.
   The question in this ease is whether a demurrer by defendant Brockett to plaintiff’s am ended petition was properly sustained.

It declares upon two promissory notes for $2,200 each, both executed July 20, 1904, by the Cleveland Printing & Publishing Company, payable to the plaintiff four months after date, which would be November 20, 1904, and both endorsed by defendants, W. M. Day, F. J. Staral and A. J. Brockett.

The question raised by the demurrer is whether said petition sufficiently alleges that notice of dishonor and demand were waived by the endorsers.

On this point the petition reads as follows:

“Each of said endorsers waived the notice of dishonor and non-payment and demand required by the statute to be given them in this, to-wit: That on or a day or two prior to November 20, 1904, the date when the within notes became due, W. M. Day, one of the three endorsers to the aforesaid notes, and the president and treasurer of the Cleveland Printing & Publishing Company, brought three renewal notes, two for two thousand dollars ($2,000) each, dated November 20, 1904, with the same endorsers on the back, and one for four hundred dollars ($400) endorsed by Luther Allen, and requested this plaintiff to accept said three notes in place of the two original notes herein described, and stated to this plaintiff that the Cleveland Printing & Publishing Company, of which he was the president and treasurer, could not pay the original notes above set forth when due on November 20, 1904. This plaintiff thereupon rejected and refused to accept the renewal notes. ”

The law on this subject is now found in Generad Code, Sections 8187 and 8214.

Section 8187 'provides that presentment for payment is dispensed with by waiver, express or implied.

Section 8214 reads as follows:

“Notice of dishonor may be waived either before the time of giving notice has arrived, or after the omission to give due notice. The waiver may be express or implied.”

It is claimed that in this case the waiver of demand was implied from the knowledge of the endorsers that the notes would not be paid .at maturity, waiver of notice of dishonor from the conduct of the endorsers in offering renewal notes endorsed by themselves.

The first point is not well taken. It was held in the case of Bassenhorst v. Willy, 45 O. S., 333:

1 ‘ The known insolvency of the maker, and that he himself can not pay, does not dispense with the necessity of presentment for payment in order to fix the liability of the endorser.”

The second point, waiver of notice of dishonor, may be implied, as quoted by counsel for plaintiff, from Boyd v. Bank, 32 O. S., 526, “if the conduct on the part of the endorser toward the holder of the note is calculated to put ,a person of reasonable prudence off his guard, or induce him to omit demand, or to give notice of dishonor. ’ ’

But was there any such conduct in this ease? What did the indorsers do? They offered two renewal notes for part-of the sum due, and a note indorsed by Luther Allen in payment of part of it. This the plaintiff refused to accept. It does not appear that Brockett was promptly notified that these three notes were not accepted. Was he not hereby lulled into temporary security instead of plaintiff’s being put off his guard?

In the case last cited, Boyd, when asked by one of the makers to indorse a renewal note, which it had agreed to accept in payment of the note sued upon, promised to do so, and told the maker to leave the note at the bank and he would come in in a few days and indorse it.

The note was left at the bank, and it was informed of Boyd’s agreement. The day for demand .and notice went by, the bank relying upon Boyd’s promise to endorse the renewal note. He afterwards refused to endorse it. Judge Wright delivering the opinion, justly remarks: “Had he kept his word and endorsed the note on Monday, the necessity of notice and protest was waived.”

But had the bank not agreed to accept a new note endorsed by Boyd, it would not have been misled by Boyd’s failure to go in on Monday and endorse the note. So here plaintiff was in no way misled by the tender of the new notes endorsed by Brockett, for he refused to accept them, and had plenty of time after his refusal to demand payment of the original notes, and. give notice of their dishonor.

The case of Jenkins v. White, 147 Pa. St., 303, is cited by counsel for plaintiff as sustaining his claim. The syllabus of the case reads as follows:

“The offer of a renewal note with the same makers and endorsers .as the original, note, constitutes a waiver of protest. Such an offer shows that the endorsers did not expect the original note to be paid at maturity, and they could not have been injured by the failure to give notice of its non-payment.”

This is not in accord with the Ohio rule announced in Boyd v. Bank, supra, which bases the waiver upon the fact that the holder was misled by the conduct of the endorser and not upon the fact that the endorser is not prejudiced by the failure to give notice. The latter, in Ohio, at least, is entitled to stand upon his legal rights, unless his conduct was misleading to the holder to his prejudice.

The case is also distinguishable from the ease at bar in that the renewal not tendered was identical with the original note in amount. Here the endorser tendered new notes for only part of the original notes, expecting the balance thereof to be paid by the Luther Allen note.

The case of First National Bank v. Weston, 49 N. Y. Supp., 542, was upon the original note, although destroyed upon the giving of a renewal note with the same endorsers, and although there had been many subsequent similar renewals, all accepted by the bank. Of course, notice of dishonor of the first note was waived, for the holders acted upon the proposal of the endorsers. The case is in line with the Boyd case.

The case of May v. Boisseau, 8 Leigh (Va.), 164, is in point and in line with the Ohio cases.

The demurrer to the amended petition was properly sustained, and the judgment thereon is affirmed.


author: Jones, O. B., J.“

text:
    COMPENSATION FOR CARE AND SERVICES RENDERED TO A DECEDENT.
    Court of Appeals for Hamilton County.
    John R. Sayler, Executor, v. Lucy E. Sellers.

    Decided, March 14, 1914.

      Implied Contract — For Compensation for Services in Caring for an Aged Couple — Action on Agreement to Malee Testamentary Provision Barred by the Statute — Quantum Meruit — Evidence as to the Nature of Services Rendered is Evidence as to Their Value— Judgment Embodying Substantial Justice Based on a Wrong Process of Reasoning.

    1. An action does not lie on an agreement to make testamentary provision for compensation for services in caring for the decedent and his wife in their old age, where the suit to enforce the agreement was not filed for more than two years after the appointment of the executor and more than six months, after the rejection of the claim by the executor.
    2. But where the court found on all the issues, including quantum meruit, for plaintiff and rendered judgment in an amount which embodied substantial justice based upon conclusions which were substantially correct, a reviewing court will not set the judgment aside on the ground that the court erred in a matter of law or logic.

      Tecle, Shaffer & Tecle and Sayler & S<ayler, for plaintiff in error.

      Healy, Ferris & McAvvy, contra.
    'Jones, E. IT., J.; Swing, J.,'concurs; Jones, O. B., J., dissents.

       Affirming with modification, Sellers v. Sayler, Executor, 14 N.P. (N. S.),1.

   The amended petition filed by the plaintiff, Lucy E. Sellers, in the court below concluded with an alternative- prayer for one of three different orders or judgments; first, for an order compelling the defendant, executor to deliver to her one hundred and fifty shares of the capital stock of the First National Bank of Cincinnati; second, “if this relief can not by law be granted that she recover of defendant the sum of $37,500 the value of said shares”; third, if such relief can not be granted that she recover from defendant the sum of $28,921, being the value of her services less the amount received by her with interest from August 11, 1909. There were allegations in the amended petition upon which this alternative prayer was predicated.

Answers were filed by each of the defendants setting forth substantially the same defense to the amended petition of the plaintiff. The answers are long, containing eight separate defenses, which we will not take space to set out verbatim. The contents of the answer will sufficiently .appear from the discussion which follows.

The prayer for delivery of the bank stock or judgment for the value thereof was based upon a written instrument signed by Mr. Yan Wormer on the 16th day of September, 1907, of which the following is a copy:

“Sept. 16, 1907.
“In addition to the seven thousand dollars invested in- 3%% Cin’ti viaduct bonds, one hundred dollars invested in a United States Government bond and sixty shares of Cin’ti Street Railway stock, I Asa Yan Wormer, give and bequeath to Lucy E. Sellers for taking care of me and my home, at my death, one hundré and fifty shares of First National Bank stock. If Lucy E,'Sellers should die before I do, then at my death the one. hundreá and fifty shares of First National Bank stock go'es to her daughter Stella Sellers.
“■(Signed) Asa Yan Wormer.”

This was not witnessed, and although testamentary in form no claim is made that it should be treated as a codicil to testator’s will. It is claimed, however, in the amended petition that,-at the time of its execution, Mr. Yan Wormer .agreed to make a codicil to his will incorporating its provisions and bequeathing to Mrs. .Sellers the bank-stock therein mentioned. -It is upon .this alleged promis'e that the prayer for the delivery of -the stock is based, the claim being that the executor since the death of Mr. Yan Wormer has held said stock in trust for Mrs. Sellers.

The testator, Asa Yan Wormer, died on the 11th day of August, 1909.. John R. Sayler, named as executor in the will, was appointed. September 38, 390.9. On September 22;--1910, Mrs. Sellers presented to said executor a claim for $28,921 for labor performed and services rendered to Asa Van Wormer from April 13, 1897, until August 11, 1909. This claim was disallowed October 20, 1910, and on November 30, 1910, the original petition of Lucy E. Sellers, plaintiff below, was filed against said Sayler, executor, in which she sought to recover said sum of $28,921, with interest from August 11, 3909.

The defendant below admitted in his amended answer the presentation and rejection of this claim. In his sixth defense he admits that plaintiff, Lucy E. Sellers, exhibited to him a paper purporting to be the original of said instrument of date September 16, 1907, set out above, and says that:

"Thereupon this defendant or,ally disputed and rejected the same, and said to the plaintiff that the instrument was of no validity, and refused to indorse thereon his allowance 'of it as a valid claim against the estate. ’ ’

Further answering, he claims:

"That the said plaintiff failed to bring an action against this defendant on a cause of action growing out of a failure and neglect on the part of Asa Van Wormer to perform any agreement under or evidenced by said instrument with respect to one hundred and fifty shares of the First National Bank stock within six months thereafter.
"That no other exhibition of said instrument or of a claim under said instrument was made to this defendant.
"Wherefore this defendant says that any claim growing out of or evidenced by said instrument is barred.”

In the seventh defense the executor denies that said Asa Van Wormer agreed to make a will giving plaintiff at his death one hundred and fifty shares of stock of the First National Bank of Cincinnati, or that he agreed with the plaintiff that he would have a codicil to his will executed in due form, etc.

In the eighth defense the executor says that he was appointed on the 18th day of September, 1909; that he caused notice of his appointment to be published in a newspaper of general circulation, commencing on the 19th day of September, 1909, as required by statute; that the said plaintiff failed to bring action against said defendant within two years, on a caxxse of action growing out of a failure and neglect on the part of Asa Van Wormer to perform an agreement,-as set out in the petition.

We think these defenses as to the .agreement to make a will or codicil giving Mrs. Sellers the bank stock are a bar to her recovery upon that claim, as it is conceded that the amended petition in which said claim was first sued upon was not filed until more than two years after the appointment of the executor and more than six months after the rejection of- said claim by him; the court below was therefore not warranted in basing its judgment in favor of the plaintiff upon this alleged agreement.

The case was submitted below upon all the issues joined, without the intervention of a jury. We say this mindful of the fact that it is contended by counsel for plaintiff in error that the case was tried below only upon the new matters set up in the amended petition, viz., upon the claim for the bank stock or its equivalent.

The record however discloses that evidence was offered in the trial below as to the terms of the contract of employment, and not only describing the services rendered thereunder by Mrs. Sellers for twelve years as the nurse and housekeeper for Mr. and Mrs. Van Wormer, but detailing with particularity the arduous and exacting labor and constant attention that were required of Mrs. Sellers. We can see no reason why it would have been considered necessary by plaintiff to have offered this testimony nor by the court to have spent the time in receiving it, unless it was to be applied to a determination of the claim for services upon quantum meruit as originally presented to the executor and .as alone sued upon in the original petition and incorporated in the amended petition in the action in the court below. The court in the judgment entry found as follows:

‘ ‘ This cause having heretofore been heard upon the pleadings and evidence and submitted to the court, the court upon con sideration thereof finds the issues joined, in favor of the plaintiff and that the facts stated in her amended petition are true.”

This language is not ambiguous, and embraces with certainty a finding for plaintiff on her claim for quantum meruit, as well as upon other issues.

There is no rule which authorizes a reviewing .court to reverse a judgment simply because the court which rendered it erred in a matter of law or logic. Section 11364, General Code, provides:

“In every stage of action, the court must disregard .any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party. No judgment shall be reversed, or affected, by reason of such error or defect. In the judgment of any reviewing court upon any petition in error in any civil action, when it is sought to reverse any final judgment or decree, or obtain a new trial upon the issues joined in the,pleadings, such reviewing court shall certify on its journal whether or not in its opinion substantial justice has been done the party complaining, as shown by the record of proceedings, and judgment under review. In case such reviewing court shall determine and certify that in its opinion substantial justice has been done to the party complaining as shown by the record, all alleged errors occurring at the trial shall by such reviewing court be deemed not prejudicial to the party complaining and shall be disregarded and such judgment or decree under review shall be affirmed, or it shall be modified if in the opinion of such reviewing court a modification thereof will do more complete justice to the party complaining.”

The questions therefore for this court are: has substantial justice been done; and are the conclusions ultimately reached, regardless of the reasons given, substantially correct?

Following, as we think, the letter and spirit of the section quoted a majority of this court are constrained to affirm the judgment below and to answer these questions in the affirmative.

We have reached this conclusion after careful consideration of all the evidence in the case. Mrs. Sellers under the statute was incompetent as a witness, and her daughter, Mrs. Blaesi, was the only witness to the conversation which took place between Mr. Yan Wormer and Mrs. Sellers at the time the contract, was made. She testified that Mr. Yon Wormer said:

“He wanted my mother to take care of him. Come out there and take care of him, and do for him and Aunt Julia as long as they lived; that if they did this, at his death she would be rewarded, and he knew that she could do anything for him, and that she would be satisfactory in every way, and he would satisfy her in return by giving her at his death enough to keep her the rest of her life without doing any work. So mama came, and I .am not quite sure about the date, but I think it was along about the 11th of April that mama and I went there and took charge of Aunt Julia and Uncle Asa in his home. ® * * so he said if she would remain and do for him, at his death she would get stocks or bonds that would yield an income from $150 to $200 a month, if she would stay and take care of him.” (Bill of Exceptions, pages 8 and 9.)

This evidence is corroborated by the testimony of James Van Wormer and Mrs. Atherton as to what Mr. Van Wormer had told them as to his arrangement with Mrs. Sellers and what- he had agreed to. do in conformity thereto, and is not disputed by a word or circumstance in the record. The conversation detailed by James Van Wormer, and found on pages 85, 86 and 87 of the bill of exceptions, shows that the old gentleman at that time (August, 1907, one month before the execution of the unattested codicil) recognized an indebtedness to Mrs. Sellers, and contemplated making some arrangement by which she would receive at his death $50,000 from his estate for her services performed and to be performed.

Within fifteen months from the date of her employment he had made provision for her in his will to the extent of' $8,000 .and had given her a $1,000 bond. At that time he was seventy eight years of age. He outlived his expectancy, and it not likely that he then expected to live to be ninety years of age. While the bequests and the gift inter vivos thus made can not be taken as absolute proof of the value of her services, they show that the old gentleman recognized the extraordinary nature of her labors and did not measure the value thereof by the usual standards or by any prevailing rule or "custom. The evidence shows that these bequests were made in compliance with his agreement or promise .as testified to by Mrs. Blaesi, and when we witness them, made, as they were so shortly after she entered upon her work, it serves to remove any feeling of surprise or doubt as to his purpose expressed nine years later to give the $37,500 worth of bank stock in further payment under his contract.

The record shows further that Mrs. Sellers knew of each of the testamentary bequests made for her at the time or soon .after they were made. She objected strenuously to them as being inadequate and not a fulfillment of his promise or of the contract of employment. What did he say or do? Did he deny the agreement as she claimed it existed? No. On the contrary he gave her bonds, stocks,- and made codicils in an effort to satisfy her, but to no avail. There was constant trouble about it. He may have thought her demands were unreasonable or exorbitant, but she insisted that he had not kept faith and at one time left him, removing her furniture and apparel to the city. He soon after induced her to return. Her services were apparently considered by him as almost if not quite indispensible. There were quarrels, a fight and much domestic turmoil in the household up to 'the time that the paper of September 16, 1907, was signed. The record is silent as to any trouble afterwards and the inference follows that both parties looked upon that paper as a settlement of the difficulty. The amount named therein was less than that fixed by him in the conversation with his friend a month before. It must be accepted as his estimate of what his .agreement, made in 1897 and since recognized by him, required him to do. We can not see how any better evidence could have been offered as to the value of her services, and as to its admissibility for such purpose there can be no doubt.

Plaintiff below was not required to offer opinion evidence as to the value of the services. He expressly agreed to provide liberally for her, insuring an income sufficient to meet her needs. This .promise, together with the unusual and diversified duties of her employment, its uncertain duration, the postponement of payment until his death, all make obvious the futility of such evidence in this case and the reason same was not offered. Evidence as to the nature of the services was evidence of their value. It is not necessary in a suit on a quantum, meruit to offer more. McIntyre, Ex’r, v. Garlick, 8 C. C., 416; Duhme Jewelry Co. v. Hazen, 6 C.C.(N.S.), 606.

The amount claimed in the amended petition is $28,921 with interest. This sum was arrived at by charging for the number of days from April 13, 1897, until August 11, 1909, to-wit, 4503 days, at $7 per day, and crediting thereon the sum of $2,600 which Mrs. Sellers had received in cash on account during this time.

On December 14, 1898, Mr. Van Wormer made a codicil to his will by which "he gave to Mrs. Sellers United States government bonds of the face value of $7,000. This codicil expressly provided that this bequest was made in consideration of her services in keeping house for him and that it was to be paid to her 'upon his death in the event that she remained with him until that time. This codicil was afterward revoked or became inoperative for the reason that the bonds named therein were about to be called for redemption, and on May 25, 1907, in lieu thereof he entered into a trust arrangement by which he placed said bonds in care of the Third National Bank of Cincinnati, Ohio, with power to reinvest the amount received for such bonds in other bonds of the United States or of the city of Cincinnati.

Under the powers contained in said deed of trust the trustee at the maturity of the United States bonds surrendered the same and reinvested the proceeds in Cincinnati viaduct bonds to the amount of $7,000, and one United States 3% coupon bond in the sum of $100, and held the same until .after the death of Asa Van Wormer, and until the 7th day of-February, 3910, when the said trustee transferred and delivered said bonds to Mrs. Sellers.

The trust instrument above referred to contained a copy of said codicil of December 14, 1898, and expressly recited that the trust was created for the purpose of carrying out the said bequest, and as a payment to Mrs. Sellers for services which she had rendered and might render in the future.

Under these circumstances we think that the sum of $7,100 heretofore received by Mrs. Sellers should have been credited upon said account presented to the executor as aforesaid, and the same not having been done, it should now be considered as a credit upon said account in the same manner as the item of $2,600 deducted therefrom by claimant. This reduces the claim of defendant in error to $21,821, and the judgment of the court below should be modified to the extent that it is in excess of this amount.

Plaintiff is entitled to recover the said sum of $21,821 with interest from August 11, 1909.

Judgment affirmed as modified.

Jones, O. B., J.“

dissenting.

The original petition in this case was the usual one for services on quantum meruit." It was superseded by the amended petition which still embodied all that was contained in the original petition, setting up plaintiff’s claim under an implied contract and then proceeding further sought in payment for the same services to show an express contract for the transfer and delivery of certain bank stock, and prayed in the alternative, first, for the delivery of that stock; or, if that could not be had, for a judgment for the value of the stock; and if that could not be han, for the value of the services rendered on a quantum meruit.

It will be seen that the new matter in the amended petition is not in explanation or in furtherance of that contained in the original petition, but is actually inconsistent with it. If plaintiff had an express contract for this bank stock in payment for her services, she had no implied contract for $7 per day, or whatever their value might be. In Creighton v. Toledo, 18 O. S., 451, the first paragraph of the syllabus is as follows:

“"Where there is an express contract between parties, none can be implied; the maxim expressum facit cessare taciturn applies in such cases. ’ ’

And on page 452, in its opinion, the court says:

“The plaintiff’s right to recover is not founded upon a quantum meruit, but solely upon an express contract which provides a stipulated mode of payment, and thus excludes the idea of a recovery upon an implied assumpsit. When there is an express contract between parties, none can be implied; the maxim expressum facit cessare taciturn applies in such cases.”

And in Crist v. Dice, 18 O. S., 542, in the opinion of the court the following language is used: “No implied obligation inconsistent with the actual agreement can arise,” etc., # * * “for expressum facit cessare taciturn.”

The allegations of the express contract and the implied contract in the same-petition are inconsistent. They are in no sense the same, but are repugnant to each other. They do not constitute two separate causes of action, but are two distinct causes of action pleaded together in the alternative, and relief under one cause of action would prevent the obtaining of it under the other. Plaintiff being uncertain as to which cause of action she might be able to prove and maintain, out of abundance of caution pleaded them both in the one amended petition. And they were both met by distinct denials.

As to the cause of action under the unexecuted codicil for an express consideration, the defendant interposed the bar of the statute both that the action had not been begun within six months after its rejection under Section 10722, General Code, nor within two years after the appointment, under Section 10746, General Code.

I concur with the majority of the court that these sections both constituted a complete bar. Shahan, Ex’r, v. Swan, 48 O. S., 25; Delaphaine v. Smith, 38 O. S., 413; Pollock v. Pollock, 2 C. C., 140.

The only recovery would, therefore, be sustained under an implied contract, as set out in the original petition.

In my opinion there was no consideration given by the court below to the claim under the implied contract, nor any determination by it .as to the value of» the services rendered or the amount which plaintiff was entitled to receive for same. On the contrary, the court below found that plaintiff was entitled to recover as damages the value of the bank stock which had not been delivered to her in accordance with the agreement which she was barred by the statute from setting up in this ease. .° To my mind this is clear from the words alone of the judgment, and becomes doubly so when we refer to the language of the court below in its opinion as reported in 14 N.P.(N.S.), 1. The judgment below was based upon the finding of the court made in the following language:

“This cause having heretofore been heard upon the pleadings and evidence and submitted to the court, the court upon consider-' ation thereof find the issues joined in favor of the plaintiff, and that thp facts stated in her amended petition are true.
“The court further find that the estate of Asa Yan Wormer is liable in damages for the value of the stock delivered to the plaintiff in accordance with the agreement in the amended petition set forth, and that therefore there i§ justly due and owing to the plaintiff from the defendant John R. Sayler, executor of the last will and-testament of Asa Yan Wormer, deceased, upon the cause of action set forth in the amended petition, the sum of $35,250 and that the plaintiff is entitled to have said sum paid to her out of the personal property belonging to the estate of the said Asa Wormer,” etc.

Surely this judgment must he read as an entirety, and it will not do to simply rely upon the general language of the first paragraph of the finding, and from it determine that the court below had necessarily found upon the claim based upon the implied contract for a quantum meruit.

It is true that the language states that the court upon consideration of the pleadings and the evidence “find the issues joined in favor of the plaintiff, and that the facts stated in her amended petition are true.”

If this language is to be construed as broadly as it has been by the majority of the court, then it necessarily means that the court below found that the express contract to pay hank stock for servioes had been established, and that the implied contract to pay the reasonable value forn the same services had also been established. These two findings are absolutely inconsistent, and this is shown conclusively, to my mind, by the specific language which follows,, wherein the court finds “that the estate of Asa Yan Wormer is liable in damages for the value of the stock, not delivered to the plaintiff in accordance with the agreement in the amended petition set forth, ,and that therefore there is justly due and owing to the plaintiff, ’ ’ etc.

Construing these two paragraphs together shows specifically which one of the two inconsistent causes of action put in the alternative in the amended petition was found in favor of the plaintiff to he true. And the value of this stock, as fixed by the testimony of the witnesses, shown in the record, is the amount for which the judgment was entered.

In other words, the cause of action which has been barred is used as a basis for the foundation of the judgment below. While it is true that there is sufficient evidence shown in the record to have enabled a jury or court on submission to determine the value of the services rendered by plaintiff in her action on an implied contract for the value of such services, the record fails to show any consideration of that evidence for the purpose of fixing such value. It will not do to say that the unexecuted codicil furnishes in itself a basis of value, as we have seen, it is eliminated from the case by reason of the bar of the two statutes above mentioned except in so far as it might furnish evidence that the decedent recognized some obligation, whether as a legal liability or as a moral duty.

• This paper is not contractual in its form, but is of a testamentary character. The record shows that testator was constantly considering how lie should dispose of his large fortune, and it is but natural that plaintiff should have been considered among others as well worthy of his benefaction. The testimony of James Yan Wormer as to his conversations with testator indicate that he was not considering the value of plaintiff’s services to himself, but rather undertaking to determine what portion of his estate he should bestow upon her, while making generous gifts to other individuals and to numerous charities.

The opinion of the court may be resorted to, to show what was adjudicated. Topliff v. Topliff, 8 C. C., 55.

In the syllabus of the opinion of the court below it is stated:

* * * “The compensation thus provided was larger than she could have expected on a quantum meruit.
* * * “The agreement must be regarded as established and the estate .as liable in damages for the value of the stock so promised, notwithstanding her mercenary motive, the excellent bargain she drove, and the defective character of the agreement upon which she relies.”

And in the body of the opinion on page 9, the following language is used:

“Except that the agreed compensation is large, and greater probably than could be given in ,an action for the reasonable value of such services, there would be little hesitation in finding the agreement to be as claimed.”

. It therefore seems to me that the judgment below was based entirely upon a wrong hypothesis; that the court found an express contract and therefore gave no attention to any proof as to the value of services under an implied- contract. And. while it is the duty of this court, under Section 11364, General Code, to “disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party. ” I can not bring myself to believe that a trial based upon a wrong theory, wherein the real issue that can be determined by the court is disregarded, and a judgment rendered on an issue which can not under the law be considered, is one where the “substantial rights of the adverse party” are not affected, and this even though the amount of that judgment might possibly coincide with the amount which could have been rendered under an implied contract. It was certainly “the substantial right” of the defendant below to have the trial court consider and determine separately the only claim which plaintiff was entitled under the law to submit to the court, viz.: the claim made under quantum meruit, and when the trial below consisted only of the determination of the claim under the express contract (which all the judges of this court agree could not be considered), it can not be said t)iat “substantial justice has been done” to defendant. '

The record shows that the plaintiff has rendered services to the decedent for which she- should receive liberal compensation, and it would be unfortunate that the settlement of the estate should be unnecessarily delayed by the sending back of this ease for retrial. Rut where the amount plaintiff may be entitled to receive as the value of the services rendered by her has, as I believe, not been considered or determined by the court below, it is, in my opinion, not the province of this court on error to take up that question and determine it from the record as though this were a trial court; nor is it correct for this court to now modify the judgment of the court below by fixing it at the amount claimed in the petition reduced only by the payments which have been admittedly received by plaintiff on account of her services.


text:
    LIABILITY OF MASTER. FOR COMBINED NEGLIGENCE OF FOREMAN AND FELLOW-SERVANTS.
    Circuit Court of Cuyahoga County.
    The Cleveland City Forge & Iron Company v. William C. Welch.

    Decided, December 4, 1911.

      Master and Servant — Negligence—Proximate Cause — Combined Negligence of Foreman and Fellow-Servants.

    In an action by a workman against his employer for damages from personal injuries there may be a recovery, if the workman was without fault and his injury was proximately caused by the combined negligence of a foreman and fellow-servants. In such case it is merely necessary to show that one of the co-operating causes-of the injury was a culpable act or omission for which the master would be responsible, and the rule holds good, whether the other causes were also defaults for which the master would be responsible, or were due tó some event or condition for which he is not required to answer.

      Russell & Éichelberger, for plaintiff in error.

      Harry F. Payer, contra.
    Marvin,-J.; Winch, J., concurs; Henry, J., dissents.

      Affirmed by the Supreme Court, Cleveland City Forge & Iron Co. v. Welch, 87 Ohio State, 512.

   This was an action for damages for personal injuries with verdict and judgment for the plaintiff below.

Objection is made to the language of the charge, as found on page .282 of the record, in which the court said:

‘ ‘ He could not recover, as I have already indicated, by reason of negligence on the part of his fellow-servants, but I say to you, gentlemen, that if plaintiff’s injury were proximately caused by the combined negligence of his fellow-servants, co-operating with the negligence'of the foreman, under such circumstances there could be recovery, if the plaintiff were himself free from negligence causing or proximately contributing to his injury. Of course, this is all conditioned upon the question whether the plaintiff was negligent, and if his negligence caused or contributed to his injury, as I have already indicated, the existence of such negligence on the part of the plaintiff — contributory negligence — would operate to defeat a recovery.”

In another part of the charge, the court substantially repeated this proposition.

The proposition stated in the charge, as an abstract proposition of law, is supported by too great weight of authority to be questioned here (Railway Co. v. Henderson, 37 Ohio State, 549, second clause- of the syllabus, and the numerous authorities there cited on page 553; see also L. S. & M. S. Ry. Co. v. Litz, 18 C. C., 653; also L. S. & M. S. Ry. Co. v. Feller, Admr., 21 C. C., 605; and Railway Co. v. Hudson, 22 C. C., 586). But it is urged that under the facts of the present case, the charge was calculated to, and probably did, mislead the jury.

This question is discussed at considerable length in Labatt on Master and Servant, in a number of sections. Beginning with Section 806, the author discusses the question as to the liability of a master for some negligent acts where causes intervene between the original negligent act of the master, and the actual injury to the servant; and in Section 808, he speaks of such intervening acts of responsible actors, as are not of themselves eulpablé, and he concludes the section with these words:

‘ ‘ Considering that the ultimate test of liability is whether the consequences flowing from the negligence charged were such as might reasonably have been expected, the decisions under this head can not easily be reconciled upon the facts.”

In the notes under this section, numerous cases are cited, where.liability was denied, as well as cases where it was affirmed. Among the latter: Knapp v. Sioux City & P. R. Co., 71 Ia., 41 (32 N. W., 18); Finley v. Richmond & D. R. Co., 59 Federal, 419; Chicago G. W. R. Co. v. Price, 97 Federal, 423.

Many other cases are cited and quoted from in the notes under this, section.

Section 809 of Labatt is headed: “Culpable acts of responsible actors; negligence of co-servants.”

In this section, too, the author points out the difficulty of fixing a boundary between the state of facts which would hold the master liable, where the intervening culpable acts are those of a fellow-servant, and where the master would be excused because of the negligence of the fellow-servant proximately causing the injury.

Section 813, of this same work, is in these words:

“Where several causes concur to produce certain results any of them many be termed 'proximate’ provided it appears to have been an efficient cause.”

The general rule applicable to all cases illustrating this situation, except those in which the contributory negligence of the servant himself is involved, is that in order to establish the right of action, it is merely necessary to show that one of the cooperating causes of the injury was a culpable act or omission for which the master was responsible. This rule holds good, whether the other causes were also defaults 'for which the master was responsible, or were due to some event or some condition for which he was not required to answer.

' In the case at bar, under the charge of the court, no reeóvery could have been had unless the jury found that the foreman of the defendant company, Newey, was negligent in giving the order for the moving of the wrench. It was clearly pointed out to the jury in the charge that unless the foreman, in giving this order, might expect as a natural consequence that an injury would result to the plaintiff below, or somebody else, then the defendant would not be liable. Under the instructions of the court, the jury must have found, and we are not prepared to say that they were not justified in finding, that the natural result of an order given in the terms.that the order was here given would be that the men to whom it was given would immediately and hurriedly move the crank, as they did move it, and that knowing as he did the position in which the plaintiff was at the time, he should have anticipated, if he had given it the thought that it was his duty to give before he caused the crank to be moved, that injury would result to the plaintiff.

It can hardly be doubted that if the foreman had himself moved the crank, as it was moved, and the plaintiff was without fault, the plaintiff could recover. But it is urged that the action of the two men who moved' the crank was an intervening cause between the order of the foreman and the plaintiff’s injury. True, the actions of the men who moved the crank did intervene. That intervention on their part was either negligent or without negligence. If it were negligent, the jury, as we think, might well find that the foreman should have anticipated such negligence on the part of those who moved the crank, if the word “negligence” is used in the sense of failing to exercise such care as they should and would under ordinary circumstances have exercised, and the authorities, to which attention has already been called, would, if the jury so found, justify the charge in this regard and justify the result reached by the jury.

If the action of the men who moved the crank was not negligent, then, under the authorities quoted, if their acts were the natural result of the order given, and the plaintiff was without fault, he would be entitled to recover.

The fact that there was a cause intervening between the negligent act of the foreman and the injury to the plaintiff, would not necessarily prevent a recovery.

If the result to the plaintiff was what might naturally and probably follow as a consequence of the negligence of the foreman, the foreman must be held to have anticipated what did result, provided, of course, the plaintiff was without fault. This seems to us to be fully justified by the holding of our Supreme Court in the ease of Adams v. Young, 44 Ohio State, 80, and Railway Co. v. Snyder, 55 Ohio State, 342.

The second paragraph of the syllabus in the first of these cases reads:

“In an action against a mill owner for damages to property caused by fire negligently or carelessly thrown by sparks from the smoke stack of the mill and carried to the property by a gale of wind blowing at the time in the direction of the property, by which fire the same was damaged; where the conditions continue the same as when the negligent and careless act was done, and no new cause intervenes, it is no defense that the fire first burned an intervening building and was tbence communicated by sparks and cinders in the same manner to the building in which such fire consumed the property, though the buildings were separated by a space of two hundred, feet. ’ ’

The second paragraph of the syllabus in the last of these cases reads as follows:

“The company delivering the car to the other company, should anticipate that employes of the latter would go upon and handle the ear and thereby be exposed to.the danger of receiving injury as a natural and probable consequence" of its defective condition, and owes such employes the duty of using reasonable care to discover and remove its dangerous defects before it is so delivered. The services of such employes being necessary to accomplish the transportation intended, the delivery of the ear for that -purpose amounts to an invitation to them to go upon and handle the car in the course of their employment, and an assurance that they could safely do so.”

Gan it be said that this is inconsistent with the charge of the court given at the request of the defendant and numbered 2, which reads:

“The defendant’s foreman, William Newey, in giving the order complained of by plaintiff’s witnesses, assuming such order was given, could not be held to have presumed that Janosko and Verbofsky would act negligently, but on the other hand, he had a right to presume that they would act with such care as their .experience and familiarity would warrant.”

This request given was too favorable to the defendant, if it is inconsistent with the general charge, and surely if it was too favorable for the defendant, it can not be heard here to complain of it.

The other propositions given, taken in connection with the general charge, we think, presented the case to the jury as favorably as the defendant was entitled to. They read:

“The defendant could not be found liable in this ease unless you find that the defendant’s foreman, William Newey, was negligent in giving the order testified to by plaintiff’s witnesses, and that such order was the proximate cause of plaintiff’s injury, and by proximate cause is meant a cause from which a man of ordinary experience and sagacity eonld for'see what result would likely follow; that the accident to plaintiff was of such a character as might reasonably have been foreseen as a natural and ordinary result of the order complained of.
“There could be no recovery in this case unless you should find that the defendant’s foreman acted negligently in giving the order testified to by plaintiff’s witnesses, and not then unless such order was the direct and proximate cause of plaintiff’s injury,'or produced results which a man of ordinary care and prudence could anticipate as the result of the order complained of.”

On the whole, we think this case was presented to the jury in as favorable a light as the defendant was entitled to have it presented; that it has no just cause of complaint of such charge. We think, too, that the jury were fully justified in finding that the order given by Newey in the manner in which it was given, as shown by the testimony, was a negligent order. It is said that the two men to whom the order was given were experienced workmen, and that Newey had a right to understand that they would be careful not to expose the plaintiff or any one else to danger in the execution of the order.

Though the witnesses who testified as to the giving of this order do not all give it in the same words, the plaintiff’s witnesses unite in saying that it was given in an earnest, forceful manner, and was accompanied by profanity, indicating that the foreman was thoroughly impatient and meant to have something done and done at once by these men; that, in short, he was ugly about it: that he did not speak to them as a careful foreman ought to address intelligent men; that it was given in such tone and manner, and .accompanied by such profanity, as indicated that any delay in its execution would result, at least, in severe censure on the part of the foreman.

The plaintiff in error complains generally that the eharge was not sufficiently definite in that it failed to explain to the jury what constituted negligence and the want of it. An examination of the charge seems to us to answer this, and to answer it against the plaintiff in error. The charge, including those propositions which were given at the request of the defendant, certainly, as has already been said, submitted the ease to the jury in as favorable a light as the defendant was entitled to.

Questions raised as to the rulings on evidence have been examined, and we find no erroneous rulings to the prejudice of the plaintiff in error in said rulings, nor in any part of the record which would justify a reversal, and the judgment is affirmed.


text:
    SUBSCRIBER. FOR PREFERRED STOCK, RECEIVING COMMON STOCK FREE, HELD LIABLE.
    Circuit Court of Cuyahoga County.
    H. O. Yoder v. Alexander Tubman.
    Decided, December 4, 1911.

      Corporations — Preferred Stock — Collection of Subscriptions to — Limitations of Action Upon — Purchaser of Such Claims from Trustee in Bankruptcy.

    1. An action may be brought for the collection of a subscription to the preferred stock of a corporation upon its insolvency, when it appears that the debts of the corporation exceed its assets and the full amount of unpaid subscriptions to all of the common as well as to all of the preferred stock without waiting until all remedy against subscribers to common stock has been exhausted.
    2. The limitation of eighteen months expressed in Section 8688, General Code, within which an action upon the liability of stockholders must be brought, does not apply to an action to collect an unpaid subscription to stock.
    3. A trustee in bankruptcy of an insolvent corporation may, under proper order, sell claims for unpaid subscriptions to capital stock of the corporation and the purchasers of such claims from the trustee may maintain an action thereon against such subscribers, but whether he can recover from them more than he paid for the claims, quaere.

      H. O. Yoder, for plaintiff in error.

      Dissette, Dissebte & Dissebte, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
    Error to the court of common pleas.
   This was an action upon a subscription for preferred stock in a corporation, common stock being also promised the subscriber free.

To this amended petition a demurrer was filed and sustained and thereupon, the plaintiff not desiring to plead further, the court entered judgment for the defendant.

On behalf of the defendant in error it is urged, first, that the written agreement sued upon was illegal, because of the language at the close of the writing in these words: “Twelve shares common, free.” It is said that this language shows that the corporation was making a promise to this subscriber which it had no authority of law to make.

Conceding this to be true, was there any less an obligation on the part of the promiser to pay the agreed price for that which the corporation had a right to issue to him? We think not. The promiser may as well be supposed to know as the promisee that he would have no right under this contract to receive any stock except that for which he'paid.

It is further urged that the plaintiff’s petition fails to state that the remedy against the common stockholders has been exhausted, or by what right he seeks to hold a subscriber of preferred stock.

A reading of the petition shows that all the assets of the corporation had been converted into money and applied to the payment of debts of the corporation, and that the corporation still owed debts largely in,excess of all which remained unpaid upon subscriptions for capital stock, so that, if the allegations of the petition are true in this regard, there would be no reason why a proper party might not bring a suit against each of the subscribers for stock, whether such subscription were for common or preferred stock, since when all was collected, there would still be less than enough to pay the debts.

The language of the statute, General Code, 8670, reads:

“Upon the insolvency of the corporation, no holder of preferred" stock shall be liable for its debts until after the remedy against the common stockholders upon their liability, as provided by law, has been exhausted, and then only for such amount as remains unpaid. Such, liability in ho event shall exceed that fixed by law for the common stock of such corporation.”

But it can not be supposed that an action against preferred stockholders is premature when the facts are that by exercising the claims on subscriptions for common stock, there would be so great a deficiency as that all of the unpaid subscriptions for preferred stock added to it would still be insufficient to pay. To construe the statute in this wise might delay the collection of subscriptions for preferred stock, when it is certain that all will have to be collected in order that the creditors be paid, until each subscriber for common stock fought his case through, if he chose to, to the Sunreme Court of the state. This would result in great delay and to no good purpose. Tf the subscribers to the preferred stock could be released entirely from the payment for their stock, or could be relieved from the payment of some part of their subscription, by exercising all the remedies against the subscribers for common stock, the statute would apply; but that is not the case here. When .all the subscribers for the common stock have paid, if the allegations of this petition are true, the subscribers for preferred stock would still be liable for their entire subscription. This objection is not well taken.

It is again urged that by reason of the language of Section 8688 of the General Code, the plaintiff is barred from bringing this action, because it was brought more than eighteen months after the obligation, if there were any, became enforceable. This section reads:

"An action upon the liability of stockholders under the two next preceding sections, can only be brought within eighteen months after the date the obligation shall become enforceable against stockholders.”

Referring to the preceding sections named, we find that they have reference to the liability of stockholders as it was prior to the 23d day of November, 1903. TTp to that time, each stockholder was liable for the payment of the debts of the corporation to an amount equal to his capital stock, and it is that liability for which, under Section 8688, the suit must be brought within eighteen months. This objection is not well taken.

-This brings us to a consideration of the question of whether the trustee in bankruptcy could assign, under an order of the court, to the plaintiff in this section the right to bring this suit. If what we have already said is correct, we have only the question of whether the right to bring such a suit is limited to the trustee alone, or whether he may sell it .to another. Generally the assets of the corporation, of which the obligation of the subscriber'for stock is one, may be sold by the trustee. We know of no prohibition against this right being sold by the trustee- when the court shall so order, and when the trustee receives pay for such chose in action, and uses the money so received by him toward the discharge of the debts of the corporation.

We do not undertake to say whether the plaintiff here would be entitled to recover the full amount' of the subscription, or only what he paid for it, what the creditors received, but we do hold that he was entitled to recover something if the allegations of his petition are -true; and so we think the court erred in sustaining the demurrer and entering judgment for the defendant, and that the plaintiff failed to receive -substantial justice.

The judgment of the court of common pleas is therefore reversed and the case remanded.