author: WILDMAN, J.

text:
    ASSIGNMENTS.
    [Lucas (6th) Circuit Court,
    September Term, 1905.]
    Haynes, Parker and Wildman, JJ.
    P. L. Andrews v. T. A. Rodijkeit.
    Assignment of Unearned Wages under Present Contract of Employment, Valid; Contra, when no such Contract Exists.
    A private individual may, for a valuable consideration, assign wages to be by him earned in the future under an existing contract of employment; but an assignment of wages to be earned from someone not then the assignor’s employer,, and there being no contract of future employment, is a mere possibility not coupled with an interest, and is unenforcible and void.
    Error to Lucas common pleas court.
    Myer Geelerd, for plaintiff.
    Potter & Potter, for railway.
    J. H. Boyd, for I. C. Chandler and T. A. Rodijkeit:
    An assignment of wages to be earned in the, future in absence of a contract of employment is inoperative to convey such wages, and is. void being against public policy. 7 Am. & Eng. Enc. Law (2 ed.) 150; Bisphorn’s Princ. (5th ed.) See. 363; Bose v. Boofing Go. 41 Bull. 21; Cooper v. Douglass, 44 Barb. 409; Fairgrieves v. Navigation Go. 2 Phila. 182; Mandevüle v. Welch, 18 U. S. (5 Wheat.) 277 [5 L. Ed. 87]; Gibson v. Cooke, 37 Mass. (20 Pick.) 15 [32 Am. Dec. 194] ; Lunn v. Thornton, 1 Com. B. 379; Gale v. Burnell, 7 Q. B. 850; Wins-low v. Insurance Go. 45 Mass. (4 Mete.) 306 [38 Am. Dec. 368] ; Field v. New York, 6 N. Y. (2 Held.) 179 [57 Am. Dee. 435]; Langton v. Norton, 1 Hare 549; Galkins v. Lockwood, 16 Conn. 276 [41 Am. Dec. 143]; Chippendall v. Tomlinson, 4 Dougl. 318; Jermyn v. Mojfitt, 75 Pa. St. 399; Lehigh Val. By. v. Woodring, 116 Pa. St. 513 [9 Atl. Rep. 58] ; Godcharles v. Wigeman, 113 Pa. St. 431 [6 Atl. Rep. 354]; 2 Story, Eq. Jurisp. Sec. 1040.

      The assignment in question is inoperative, there being nothing upon which for it to operate. Tolman v. Roofing Co. 9 Dec. 501 (6 N. P. 467) ; Hart v. Gregg, 32 Ohio St. 502; Brooks Co. v. Tolman, 27 O. C. C. 321; Kane v. Clough, 36 Mich. 436 [24 Am. Rep. 599] ; State v. Hastings, 15 Wis. 75; Hawley v. Bristol, 39 Conn. 26; Metcalf v. Kincaid, 87 Iowa 443 [54 N. W. Rep. 867; 43 Am: St. Rep. 391]; Boylen v. Leonard, 84 Mass. 407; Lnnn v. Thornton, 1 Com. B. 379; Gale v. Burnell, 7 Q. B. 850; Chippendall v. Tomlinson, 4 Dougl. 318; Williams v. Chambers, 10 Q. B. 337; Cooper v. Douglass, 44 Barb. 409; Otis v. Sill, 8 Barb. 102; Lightbody v. Smith, 125 Mass. 51; Low v. Pew, 108 Mass. 347 [11 Am. Rep. 357] ; Twiss v. Cheever, 84 Mass. 40; Mulhall v. Quinn, 67 Mass. (1 Gray.) 105 [61 Am. Dec. 414]; Brackett v. Blake, 48 Mass. (7 Mete.) 335 [41 Am. Dee. 442]; Rice v. Stone, 83 Mass. (1 Allen) 566; Head v. Goodwin, 37 Me. 181; 2 Kent’s Commentaries (10 ed.) 468, 641; Jones v. Richardson, 10 (Mete.) 481; Hartley v. Tapley, 68 Mass. (2 Gray) 565;' Gardner v. Hoeg, 35 Mass. (18 Pick.) 168; Tripp v. Brownell, 66 Mass. (12 Cush.) 376; Crocker v. Whitney, 10 Mass. 316; Hall v. Jackson, 37 Mass. (20 Pick.) 194; Carrique v. Sidebottom, 44 Mass. (3 Mete.) 297; Wade v. Bessey, 76 Me. 413; Farnsworth v. Jackson, 32 Me. 419; Steinbach v. Brant, 79 Minn. 383 [82 N. W. Rep. 651; 79 Am. St. Rep. 494],
    An assignment which professes to transfer a debt to arise for wages not yet earned against any person by whom the assignor may therefor be employed, although followed by a subsequent notice of assignment to such an employment, is insufficient , without acceptances to make a valid transfer of the debt against the employer. Jermyn v. Moffitt, 75 Pa. St. 399.
    Without the assent of the debtor both upon principle and authority that a creditor cannot assign part of a debt or chose in action so as to give even an equitable interest in said assigned fraction of it or create any lien upon it. Getchell v. Maney, 69 Me. 442; Farnham v. Virgin, 52 Me. 576; Robbins v. Bacon, 3 Me. 346; Cutts v. Perkins, 12 Mass. 206; Mandeville v. Welch, 18 U. S. (5 Wheat.) 277 [5 L. Ed. 87]; Gibson v. Cooke, 37 Mass. (20 Pick.) 15 [32 Am. Dec. 194]; Tripp v. Brovmell, 66 Mass. (12 Cush.) 376; Bullard v. Randall, 67 Mass. (1 Gray) 605 [61 Am. Dee. 433]; Drake, Attachment (3 ed.) See. 611.
   WILDMAN, J.

This is a contest over a fund. One of the defendants here, Theodore A. Rodijkeit, was plaintiff below; he sued the railway company and a contest arose between Ida E. Chandler, who had attached certain wages. earned by, and due to, Rodijkeit and one P. L. Andrews. Her fight to receive the money was contested by Andrews, who was a defendant • below. He filed a cross petition in the court of common pleas, asserting his right to the wages by reason of an assignment which had been made to him by Rodijkeit. The wages at the time of the assignment and for several months thereafter had not been earned, and the question fairly raised is as to whether such an assignment is. valid. The court below evidently deemed that it was not and sustained a demurrer to the pleading of Andrews.

For a determination of whether or not the demurrer should have been sustained, it is necessary to glance at the cross petition of Andrews. In substance it alleges:

“On the twenty-second day of April, 1904, the said plaintiff (Rodijkeit) was in the employ of said defendant, the Lake Shore & Michigan Southern Railway Company and so remained in the employ of said defendant continually up to the twenty-fifth day of January, 1905. That on said twenty-second day of April, 1904, said plaintiff, for a valuable consideration, assigned to defendant, P. L. Andrews, out of the wages then due, or to become due him from said defendant company, the sum of seventy-five dollars ($75) and that there is now due this answering defendant, on said assignment, a copy of which is hereto attached and marked exhibit A and made a part, hereof, the sum of forty-five and sixty one-hundredths dollars ($45.60).
“That due notice of the execution and the delivery of said assignment was given the said defendant, the Lake Shore & Michigan Southern Railway Company while it was indebted to plaintiff.”

He asks that his assignment may be declared to be a first and best lien on the sum due the plaintiff from the defendant, the Lake Shore & Michigan Southern Railway Company, and for judgment for such amount.

The demurrer, of course admits the truth of all the material statements in the pleading demurred to. The question is an interesting one which might invite, if there were time, a consideration of a large numIber of cases which we have examined. The question has not been determined by any adjudication of the Supreme Court of the state. The circuit court of Cuyahoga county passed expressly upon the question in the case of Brooks Co. v. Tolman, 27 O. C. C. 321, the syllabus of which case I will read:

“An assignment of wages or salary to be earned in the future under an existing contract of employment, made for a valuable consideration, invalid and enforcible; and neither the assignor nor his family can claim such money, or any part thereof, as an exemption in lieu of a homestead, as against the rights of the assignee under the assignment.”

The case seems to be well considered and indicates very careful research of the authorities on the part of the judges making the holding, Marvin, Hale and Winch.

We have been unable in our examination of the matter to find any case in conflict with the rule as laid down in 4 Cyc. 17 to 20:

“Future earnings or salary of a private individual, and anticipated profits under existing agreements, may be assigned, although the contract under which the work is being done may be indefinite as to time of employment and the amount to be paid for the work.
“But, in order that there may be an assignment of future earnings, it is essential that the expectation of such earnings shall be based upon an existing contract of employment; as without such contract there cannot be any valid assignment, either in law or equity, of wages and salary to be earned in future, for the reason that, under such circumstances, future earnings constitute a mere possibility not coupled with an interest.”

In the case of Grant v. Ludlow, 8 Ohio St. 1, we find this language on page 37, used by Judge Swan:

“Whatever choses in action are transmissible by operation of law, are assignable in equity.”

Then he gives the rule stated by Judge Story in Comegys v. Vasse, 26 U. S. (1 Pet. )193, 213 [7 L. Ed. 108], as follows:

“ ‘In general, it may be affirmed'that mere personal torts, which die with the party, and do not survive to his personal representative, are not capable of passing by assignment; and that vested rights ad rent and in re — possibilities coupled with an interest, and claims growing out of, and adhering to property — may pass by assignment.’ ”

The suggestion which I wish to make is that the learned judge is apparently recognizing a doctrine that a possibility coupled with an interest is susceptible of assignment,, and it will be found that unearned’ wages under an existing employment are, by the current of authorities recognized as possibilities coupled with an interest, notwithstanding the decisions of our Supreme Court in the case of a son having nothing but an expectation of inheritance, nothing which he may transfer during thé life of the father. It seems to us that the drift of authorities is possibly inconsistent with the rule as to assignments of expectations of inheritance and yet it seems to be an unbroken line and to have established the rule in the ease of unearned wages where the rights of private persons are concerned. In the ease of public officers, the rule seems to be different. I read from 4 Cyc. 19:

“The assignment, by certain classes of public servants, of their unearned salaries or fees of office has, been forbidden by statute in England and by act of congress in the United States. But, even in the absence of statute, the great weight of authority, both in England and in the United States, is to the effect that an assignment by a public officer of the unearned salary or fees of his office is void as against public policy. The doctrine has been extended so as to forbid the assignment, by private trustees, of expected fees to be earned by the performance of duties of the trust, when such duties and the compensation therefor are prescribed b'y statute.”

■ We have a case in Ohio, Porter v. Dunlap, 17 Ohio St. 591, where-the court recognized the validity of an assignment by a school teacher of unearned compensation as an equitable assignment and held that a subsequent attempt to draw the fees by the school teacher was in fraud of the assignment and that the person to whom he had assigned should be permitted in equity to collect the fund.

In Tolman v. Roofing Co. 9 Dec. 501 (6 N. P. 467), the attempted assignment was by one who was not employed at the time of the assignment, and that distinguishes the ease from the one at bar. I might say that there is one citation in 4 Cyc. 17, that at first glance might seem to be in conflict with the prevailing rule. It is a reference to Spain v. Brent, 68 U. S. (1 Wall.) 604 [17 L. Ed. 619], to be found in the foot note, but on an examination of the report we find the case not in conflict with the drift of authorities; so that we discover no exception in the adjudications to the enunciation of this rule, that a person who is in the employ of another may assign his wages not then earned, but an attempted assignment of wages which by a possibility may be earned from somebody not then an employer, and where there is no contract for a future employment, is not valid. There is nothing in the latter case but a mere possibility and, as the authorities say, it is not coupled-with an interest.

Now much against our notions of what would be the better rule in harmony with the principle as to the sale of an expectancy, we feel compelled to differ with the court below. We are not shaken in this view by the fact that there is no express averment, that in this case there was a contract of employment. It is averred in the cross petition of Andrews that Rodijkeit was “in the employ” of the company at the time and that he remained continuously in the employment to and during the time of the earning of the wages sued for.

The term “in the employ” involves the idea of employer and employe, and the expression used expresses the idea of a continuing service. To say that one is in the employ of another is as much as to say that he has been employed by him and that he is still rendering services involved in the employment. There is no escape from this. Logically, to say one is in the employ of another, is to say he is not rendering gratuitous services. It involves the idea of a contract of employment. And, having that view, we think that by a fair construction of this pleading it does allege a contract of employment, and, in Mallin v. Wenham, 209 Ill. 252 [70 N. E. Rep. 564; 101 Am. St. Rep. 233], an existing employment was held to be sufficient to entitle a person to make an assignment of wages not-then earned, he having a possibility coupled with an interest. We hold that Rodijkeit could make the assignment which he made. Therefore, there being no other question involved herein, it will be our duty to reverse the judgment of the court below.

I might say in passing that the parties, some of them, seem to have the idea, expressed in brief and in argument, that the rights of the other party, Mrs. Ida A. Chandler, are involved; but it will be noted that Ida A. Chandler has not demurred to this pleading.

The question of her rights is not necessarily before us, so far as this, demurrer is concerned and one ruling upon the demurrer involves only the right of Rodijkeit. He brought the suit; Rodijkeit was asking for the fund; he is not asserting Ida A. Chandler’s rights; he is saying that she claims some interest; but he'is not asserting her interest!

• The judgment of the lower court will be reversed, and the case remanded for further proceedings.

Haynes and Parker, JJ., concur.


source: Caselaw Access Project

author: HENRY, J.

license: Public Domain

text:
    CHARGE TO JURY — NEGLIGENCE.
    [Lorain (8th) Circuit Court,
    October 6, 1905.]
    Marvin, Winch and Henry, JJ.
    Cleveland & S. W. Traction Co. v. Hamner.
    1. Charge that Plaintiff in Personal Injury Suit can Recover for Epilepsy, if it be either the Actual Result or a Natural Consequence of Injuries Sustained is Erroneous.
    In an action for personal injuries, in which the petition alleged that the plaintiff had become subject to epilepsy as a consequence of the injuries sustained in the accident in controversy, a charge to the jury, which says, in substance, that the plaintiff may recover for such epileptic condition if it he either the actual result, or merely a natural and probable consequence of the injury, is erroneous; in such case, the court should have charged the jury to find whether epilepsy was a natural and probable result under the circumstances of the case, and if so, whether or not plaintiffs epilepsy, if any exist, did in fact result from the injuries alleged in the petition and actually suffered by him.
    2. In Personal Injury Suit, Enumeration of Injuries Excludes all Others from Consideration unless they Naturally and Probably Follow.
    In an action for damages for personal injuries, the enumeration in the petition of consequential injuries excludes from the consideration of the jury, all other injuries except such as are shown to be the natural and probable results of the ones expressly mentioned.
    Error to Lorain common pleas court.
    W. W. Boynton and C. W. Collister, for plaintiff in error.
    Skiles, Green & Skiles and Lee Stroup, for defendant in error.
   HENRY, J.

This is a personal injury damage case. Hamner was a passenger and hurt in a collision. He recovered a large judgment which, the. traction company here seeks to reverse. We shall discuss only one or two of the assignments of error, the others being in onr opinion clearly unfounded.

It is complained that although epilepsy was not mentioned in the petition’s recital of Hamner’s injuries, evidence thereof was admitted and the jury under the charge was permitted to consider it as an element of damages, and that, too, whether they found that it was the actual result, or merely a natural and probable consequence, of the initial injury. •

Of course, the petition’s enumeration of consequential injuries must be held to he exclusive of any and every such injury that is not a natural and probable result of those expressly mentioned.

Whether epilepsy was such a natural and probable result, was therefore a preliminary question for the jury, under the evidence rightly admitted in that behalf.

In case they found epilepsy to be an ordinary consequence of the injuries averred, they should have been directed to find whether the plaintiff’s epilepsy, if any, did in fact result from any of the injuries mentioned in his petition and actually suffered by him:

Instead ,of thus marshalling these propositions in due subordination, the court charged that they were alternative conditions of recovery for epilepsy as an element of plaintiff’s damages, saying in substance that plaintiff might recover therefor if it were either the actual result, or merely a natural and probable consequence. i

I quote, from page 31 of the bill of exceptions, the court’s charge on this point:

“If you find that the plaintiff has the disease of epilepsy; I say to you, that the defendant is not liable therefor, unless you find that such disease is the direct result of the injury received by plaintiff, or is a probable and natural consequence of the injury caused to plaintiff by defendant’s negligence, and one which, according to common experience and the usual course of events, might reasonably have been anticipated. And if, on -this subject, the evidence is so evenly balanced that you are unable to say what the truth is in that behalf, or if you find that said disease was not the direct result of said injury and was not a probable and natural consequence of such injury, and one which, according to common experience and the usual course of events might reasonably have been anticipated, then the plaintiff has failed to sustain the burden which the law requires, and you should not allow damages for the plaintiff having such disease, if you find.he has such disease.
“But, if yon find plaintiff has such disease, and that it is the direct result of the injuries received by the plaintiff, or that it is a probable and natural'consequence of injuries receiyed by plaintiff in said collision, and one which, according to common experience and the usual course of events, might reasonably have been anticipated, then you should consider that fact in assessing .damages.”

The jury were thus erroneously permitted to award plaintiff damages for epilepsy, even though they should find that it was not an actual consequence of the accident.

For this error in charging the jury, the judgment is reversed and the cause remanded.

Marvin and Winch, JJ., concur.


author: DUSTIN, J.

text:
    BOARDS OF HEALTH — CONTRACTS.
    [Franklin (2d) Circuit Court,
    March, 1905.]
    Wilson, Sullivan and Dustin, JJ.
    Aaron Meily v. Columbus (City).
    Oral Contract for Necessaries eor Quarantined Family Made with Certain Municipality, Valid.
    Recovery may be had on an oral contract, made with the agent of a municipal corporation, for necessaries furnished a family under quarantine for a contagious disease, under favor of Lan. R. L 3505 (R. S. 2138; B. 1536-755), regulating boards of health and prescribing their duties, notwithstanding a provision of the charter of such city that all contracts thereof shall be in writing, and signed and approved by certain officers.
    Error to Franklin common pleas court.
    O. H. Mosier, for plaintiff in error, cited:

      Turner v. Toledo, 8 Circ. Dec. 196 (15 R. 627) ; Rae v. Fling, 51 Mich. 826 [16 N. W. Rep. 887]; Cincinnati v. Ogden, 5 Ohio 23; Smith, Mun. Corp. Secs. 728, 1033.
    J. M. Butler and D. T. Keating, for defendant in error.
   DUSTIN, J.

Plaintiff recovered a judgment before a magistrate for $33 and costs against the city of Columbus, on an account for necessaries furnished a family resident in the city during the time said family was quarantined for smallpox, in January, 1903, pursuant to an alleged oral contract with the board of health of said city. The city appealed the case to the common pleas' coitrt where a demurrer was sustained to the petition. Plaintiff not desiring to amend, submitted to a judgment against him for costs, and brought this proceeding to reverse the judgment of the common pleas court, alleging error in sustaining said demurrer.

The demurrer was evidently sustained upon the theory that the contract, to be valid, should be in writing, pursuant to the requirement of Sec. 63 of the Charter Law of the city passed March 7, 1893, and found in 90 O. L. L. 147 (see Lan. R. L. 3131; B. 1536-679), to wit:

“All contracts shall be in writing, signed and executed in the name of the city by the head of the appropriate department and approved by the board of public works, by a yea and nay vote before they are binding upon the city.”

But, later, May 7, 1902, the legislature enacted a general law regulating boards of health, and prescribing their duties (95 O. L. 421), of which Lan. R. L. 3491 (R. S. 2128; B. 1536-741) provides in part as follows:

“When a house or other place is quarantined on account of contagious diseases, it shall be the duty of the board of health having jurisdiction to provide for all persons confined in such house or place, food, fuel, and all other necessaries of life, including medical attendance, medicine and nurses, when necessary; the expenses so incurred, except those for disinfection, quarantine, or other measures strictly for the protection of the public, when properly certified by the president and clerk of the board of health, * f * shall be paid by the person or persons quarantined, when able to make such payment, and when not by the city,” etc.

By Lan. R. L. 3505 (R. S. 2138; B. 1536-755) of the same act, it is made the duty of the city council, in ease of threatened epidemic, if funds are not otherwise available, to borrow, money to meet the expenses of the board of health and “upon application and certificate from the board of health, to pass the necessary appropriation ordinances to pay the expenses so incurred and certified. ’ ’

It is averred that the necessaries were furnished pursuant to contract, that the account has been certified by the president and clerk of the board of health, that the quarantined family are not able to pay and that demand has been made of the city.

This, we think, makes a good petition, as against a general demurrer.

The latter act, so far as there may be any conflict between it and the charter law, governs. It would govern also because it is a special provision as against a general one, and because a contrary construction would defeat the whole purpose of the act.

If dealers were required to wait for a written contract and the passage of an ordinance appropriating the money before furnishing supplies under such circumstances with any assurance of payment, the quarantined family might die of starvation or of cold.

If food and fuel were not forthcoming as needed, the family would be justified in breaking the quarantine in order to solicit or earn a living, thus spreading infection throughout the city.

The very emergencies of the case demand prompt and effective action upon the part of the board of health, without awaiting the slow processes of the law required in other matters.

The judgment of the common pleas court will therefore be reversed and the cause remanded with instructions to overrule the demurrer to the petition.

Wilson and Sullivan, JJ., concur.


author: PER CURIAM.

text:
    SCHOOLS — CONSTITUTIONAL LAW.
    [Hamilton (1st) Circuit Court,
    1905.]
    Jelke, Swing and Giffen, JJ.
    Cincinnati School District (Bd. of Ed.) v. Oakley Spec. Sch. Dist. No. 11 (Bd. of Ed.).
    Laning R. L. 6604 (R. S. 4022a), Providing for Attendance of Children in Certain Districts at Nearest School, Unconstitutional.
    Laning R. L. 6604 (R. S. 4022a), which, provides for the attendance of children in certain districts at the nearest school, confers .a privilege on certain children of school age and not upon others similarly situated, and is therefore in contravention of Sec. 26, Art. 2 of the Ohio constitution.
    Error to Hamilton common pleas court.
    A. H. Morrill, for plaintiff in error.
    Ireton, Collins, Schoenle & Poor, for defendant in error.
   PER CURIAM.

Under Lan. R. L. 6604 (R. S. 4022a), all children of school age throughout the state who reside further than one and one-half miles from the school where they have a legal residence under the school laws of Ohio, are permitted to attend the nearest subdistrict or joint sub-district school; or the grades below the high school in special and village district schools; and if under twelve years of age, are permitted to attend the schools under the control 'of boards of education of city districts of the first class:

By its operation and effect this section excludes such children from any school in a city district of the second class; and if they are over twelve years of age from any school in a city district of the first class, although such school is nearest to their legal residence. It confers a privilege upon a portion of the children of school age who reside further than one and one-half miles from the school where they have a legal residence, and not upon others, although similarly situated. It does not have universal operation as to all children in the same condition or category, and therefore contravenes See. 26, Art. 2 of the constitution, which provides:

“All laws, of a general nature, shall have a uniform operation throughout the state.” State v. Spellmire, 67 Ohio St. 77 [65 N. E. Rep. 619].

Judgment reversed.


author: SULLIVAN, J.

text:
    ASSESSMENTS — CONSTITUTIONAL LAW — ESTOPPEL.
    [Franklin (2nd) Circuit Court,
    November 4, 1905.]
    Wilson, Sullivan and Dustin, JJ.
    Margaret Murphy v. Nelson Sims, Treas., et al.
    Petitionee foe Improvements bt Foot Frontage, Estopped to Attack Constitutionality of Statute, oe Assessment because in Excess of Benefits.
    A petitioner for certain improvements to be made under favor of a statute providing for the assessment of the cost on a basis of frontage will be estopped to complain of the illegality of the assessment, on the ground that it was in excess of the special benefits conferred, or that it was made under an unconstitutional statute.
    Appeal from Franklin common pleas court.
    Ulric Sloane, for plaintiff.
    Dyer & Williams, for defendant.’
   SULLIVAN, J.

This cause is pending here on exceptions to the master’s report as well also on motion to confirm the same.

The master in his finding of fact made no finding, upon the claim made, that plaintiff had signed the supplemental petition, dated February 6, 1892. Upon the point as to whether she had actually participated in the promotion of the improvement, he found she had signed the petition dated September 1, 1892, in which she waived all claim for damages by reason of said improvement, and that an assessment would be made against the abutting property which would include her property. There are other findings of fact, but the above are all we think necessary to be considered upon the exceptions. As the master found that plaintiff had signed the petition of September 1, 1892, asking that a change be made in the grade, for the reasons therein stated, and that plaintiff knew that the work was being done, and that her property would be assessed, it was unnecessary to find whether she had signed the supplemental petition of February 6, 1892, to support the conclusion, that she had actually participated in the promotion of the improvement.

We do not think the facts found sufficient to support the conclusion of the master upon this point, and therefore it is necessary for the court to determine from the testimony, whether the plaintiff signed the supplemental petition of February 6, 1892. She is positive she signed no paper, relative to the improvement, except one signed by her sister, and we think it is because her sister’s name is not to this paper, that she claims she did not sign it. Her attention had not been called to the fact of her name to this paper until the trial below, and the lapse of time furnished, we think, ample reason for forgetting it, if she had signed it. No motive is shown in any other person to sign her name to it. At the time, this controversy could not have been in contemplation — no controversy over assessments that could have suggested to anyone that her signature to the paper would become important.

The petition had a sufficient number of names to confer jurisdiction under the statute and authorize the commissioners to proceed. Hence all that the parties had in contemplation at the time could as well be accomplished without her name as with it. There was no reason — at least none is made to appear — why anyone should attach her name, but herself. It cannot be said to be unusual to forget such a fact, especially when as in this case, there was no imperative reason why the fact should be fixed in the mind for the purpose of remembering it. For no reason was it required she should remember it. Our opinion is, she signed it and has forgotten it. We recall counsel’s oral argument, to concede as much. This supplemental petition asked for all contained in the original, and in addition that the sidewalks be graded, as provided for in the so-called Taylor law. The commissioners took no action in the matter until after the supplemental petition was filed and then acted upon both, as one petition. Plaintiff was, therefore, an active participant in the promotion of the improvement. So far as doing the work was concerned, she obtained the improvement as prayed for in the supplemental petition, as well as that asked for in the original petition.

It is contended by plaintiff’s counsel that, admitting all these facts, the plaintiff may still challenge the assessment as to the excess of special benefits, which question is one of fact, and her counsel claims the testimony clearly shows that the amount of the assessment is in excess of special benefits. The leading case cited and relied upon by plaintiff’s counsel in support of this claim is that of Birdseye v. Clyde (Vil.), 61 Ohio St. 27 [55 N. E. Rep. 169]. It was there held “to be the general policy of the legislation to restrain the power of local assessment, by fixing a limit * * * beyond which municipal corporations may not go.” This policy is the same without doubt as to all local assessments, unless the contrary clearly appears. An intention to adhere to that policy will be presumed, in the enactment of particular statutes relating to local assessments, and a construction given jbem. if possible, allowing the application of the general limitations.

in the application of this rule to the statutes to be construed in that case, it was held that a party petitioning for the improvement, thereby consenting to the raising of a certain proportion of its cost by assessment on all the abutting property, was not estopped to maintain an action for an injunction, restraining the collection of the amount of said assessment in excess of special benefits. The assessment in that case, as in this, was by the foot front and the contention of Birdseye was, that notwithstanding it was by that method, yet the limitation providing that an assessment for such an improvement could not exceed 25 per cent of the taxable value of this property, applied.

The statute under which the assessment was made in that ease provided that such assessment by the foot front should be made on the abutting property “as provided by the laws of the state of Ohio.” By this provision, some of those of the general statutes of the state relating to assessments for local improvement were incorporated into, and became a part of, the special, act and intended to govern assessments under the act. It was for this reason, fully set out in the opinion, that the owner had the right to presume that the assessment would be made, according to the provisions of said statutes, and hence he- was not estopped from maintaining his action to enjoin any assessment in excess of the amount provided in the provision of former statutes incorporated into the special act.

Section 6 of the statute here under consideration provides that the assessment shall be by the foot front upon the abutting property, not exceeding a depth of 250 feet, etc., in accordance with the provisions of law now enacted or hereafter enacted, applicable thereto, “and not inconsistent with this act,” — very unlike the special act under consideration in Birdseye v. Clyde (Vil.), supra. To make the assessment upon the basis of the taxable value of the property, would be inconsistent with the provisions of the act, as the plaintiff is one of the petitioners, and thereby active in the promotion of the improvement/knowing that her lands would be assessed, for a part of the costs and expenses to the amount found by the commissioners per foot front. Such conduct and knowledge on her part would now make it inequitable to others if she were allowed to complain of the illegality of the assessment because the statute under which the proceedings were had was unconstitutional, or that the assessment was in excess of special benefits. Shepard v. Barron, 14 O. F. D. 417 [194 U. S. 553; 24 Sup. Ct. Rep. 737; 48 L. Ed. 1115].

At the time the proceedings were instituted and the improvement made, a law of a similar nature was held to be constitutional, in the case of the State v. Franklin Co. (Comrs.) 35 Ohio St. 458. The fact that similar laws were long afterward held to be unconstitutional would not entitle her to the remedy by injunction. Shoemaker v. Cincinnati, 68 Ohio St. 603 [68 N. E. Rep. 1].

The exceptions to the master’s report are therefore sustained, and as a consequence motion to confirm is overruled, and plaintiff’s petition is dismissed at her costs.

Wilson and Dustin, JJ., concur.


author: GIFFEN, J.

text:
    CONTEST OF WILL — EVIDENCE.
    [Hamilton (1st) Circuit Court,
    March, 1905.]
    Jelke, Swing and G-Men, JJ..
    Frank Schoch et al. v. Julius Schoch et al.
    1. Refusal to Give Charge as to Testator’s 'Belief in Spiritualism is Proper IF ALL THE FACTS PROVED ARE HOT STATED.
    The refusal to charge the jury in a will contest that the belief of the testatrix in spiritualism afforded no ground to set the will aside is not erroneous, where such charge did not present all facts as to her belief and practices as they appeared from the evidence.
    2. Testimony as to Declarations by Witness Tending to Show Design to Exercise Undue Influence over Testatrix Admissible.
    In the contest of a will the admission of testimony as to certain declarations on the part of a beneficiary and his wife made prior to the death of the testatrix, for the purpose of showing a design on their part unduly to influence her in their favor in the execution of such will, is not prejudicial, error.
    2. Admission of Certain Testimony not a Ground for Reversal when Objections Relate Solely to Mode of Proof.
    Where objections to the admission of certain testimony go to the mode of proof rather than to its substance, and it appears that the adverse party was not prejudiced thereby, the admission of such evidence is not reversible error.
    Error to Hamilton common pleas court.
    Keam & Keam, for plaintiffs in error:
    Cross-examination of witnesses under Rev. Stat 5243 (Lan. 8752) does not give counsel tbe right to question Ms own witness, as if he were the witness of the other party. Simons v. Mooney, 12 Circ. Dec. 73. (22 R. 271) ; Roush v. Wensel, 8 Circ., Dec. 141 (15 R. 133).
    The court having given special charges, as requested under Rev, Stat. 5190 (Lan. 8699), must not repeat special charge in genera; charge, and then proceed to qualify, modify or in any manner to explain the same. Rupp v. Shafer, 12 Circ. Dec. 154 (21 R. 643); Bain
      v. Wilson, 10 Ohio St. 14; Walker v. Stetson, 14 Ohio St. 89 [84 Am. Dee. 362]; Caldwell v. Brown, 6 Oire. Dee. 694 (9 R. 691); Lutterbeck v. Railway, 5 Circ. Dec. 141 (11 R. 279); Avery v. House, 1 Circ. Dec. 468 (2 R. 247).
    Erroneous charge. West v. Knoppenberger, 26 O. C. C. 168.
    When all the evidence and the charge to the jury are made a part of the record by bill of exceptions, and the charge appears to be erroneous, the reviewing court, although no exception was taken, will consider whether the ease was fairly tried. Dollman v. Haefner, 4 Circ. Dec. 290 (12 R. 721).
    A special exception to the charge is not always necessary. Baker v. Pendergast, 32 Ohio St. 494 [30 Am. Rep. 620]; Weybright v. Fleming, 40 Ohio St. 52.
    Horstman & Horstman, for defendants in error:
    Admission of testimony to show feeling of unfriendliness, etc. Wigmore, Evidence Sees. 1714, 1715, 1800, 2207; Sugden v. St. Leonards, L. R. 1 P. D. 154; Biles v. Holmes, 11 Ired. 16; State v. Howard, 32 Vt. 380; Travelers Ins. Co. v Mosley, 75 U. S. (8 Wall.) 397 [19 L. Ed. 437] ; Elmer v. Fessenden, 151 Mass. 359 [24 N. E. Rep. 208; 5 L. R. A. 724] ; Mutual Life Ins. Co. r. Hillmon, 145 Ú. S. 285 [12 Sup. Ct. Rep. 909; 36 L. Ed. 706];. Commomvealth v. Trefethen, 157 Mass. 180 [31 N. E. Rep. 961; 24 L. R. A. 235]; Bacon v. Charlton, 61 Mass. (7 Cush.) 581; State v. Hayward, 62 Minn. 474 [65 N. W. Rep. 63]; Day v. Stickney, 96 Mass. 255; Abbott, Trial Ev. (2 ed.) Sec. 63, p. 147; Kirkpatrick v. Jenkins, 96 Tenn. 85 [33 S. W. Rep. 819]; Einkead’s Instruc. & Jour. Ent. 484; Page, Wills Sec. 423.
    When the feeling of contestant towards testator is material, the declarations of the contestant expressing such feelings are admissible, even if it is not shown that the testator was informed of such declarations. Page, Wills 478, 507; Stevens v. Leonard, 154 Ind. 67 [56 N: E. Rep. 27; 77 Am. St. Rep. 446]; Henderson v. State, 105 Ala. 82 [16 So. Rep. 931]; Burney v. Torrey, 100 Ala. 157 [14- So. Rep. 685; ■ 46 Am. St. Rep. 33]; Fastis v. Montgomery, 95 Ala. 486 [11 So. Rep. 204; 36 Am. St. Rep. 227]; Higginbotham v. Higginbotham, 106 Ala. 314 [17 So. Rep. 516]; Manatt v. Scott, 106 Iowa 203' [76 N. W. Rep. 717; 68 Am. St. Rep. 293]; Denning v. Butcher, 91 Iowa 425 [59 N. W. Rep. 69]; King v. Holmes, 84 Me. 219 [24 Atl. Rep. 819]; McHugh v. Fitzgerald,, 103 Mich. 21 [61 N. W. Rep. 354]; Merriman, In re, 108 Mich. 454 [66 N. W. Rep. 372]; Stewart v. Jordan, 50 N. J. Eq. 733 [26 Atl. Rep. 706]; Hindman v. Van Dyke, 153 Pa. St. 243 [25 Atl. Rep. 772]; Barney, In re, 70 Vt. 352 [40 Atl. Rep. 1027]; Slinger,. In re, 72 Wis. 22 [37 N. W. Rep. 236]; Nash, v. Railway, 95 Wis. 327 [70 N. W. Rep. 293]; Reynolds v. Adams, 90 111. 134 [32 Am. Rep. 15]; Carpenter v. Batch, 64 N. H. 573 [15 Atl. Rep. 219] ; Beaubien v. Cicotte, 12 Mich. 459; Barrel v. Barrel, 62 Ky. (-1 Duv.) 203; Campbell v. Carnahan, 13 S. W. Rep. 1098 (Ark.).
   GIFFEN, J.

This was an action to set aside a will upon the grounds that the testatrix was not of sound mind and memory, and was unduly influenced.

The jury returned a verdict finding that the paper writing purporting to be the last will and testament of Mary Sehoeh, deceased, .was not the valid last will and testament of the said Mary Sehoeh.

The judgment rendered upon this verdict is now sought to be reversed for the alleged error of the court in refusing to give the following special charge at the request of the plaintiffs in error:

“I charge you, that even if you should find from the evidence that Mary Sehoeh, deceased, during her lifetime was a believer in spiritualism, and did believe during her lifetime that she could have communication with spirits in the other world, that this would be no ground for the setting aside of. her wishes in making a distribution of her property in her last will and testament.”

The objection to this charge is, that it does not embrace all the facts brought out at the trial concerning the belief and practice of spiritualism by the testator, nor was there any pretense on the part of the defendants in error that any or all of the facts concerning spiritualism proved at the trial constituted the only ground for setting aside the will.

The charge, therefore, if given, would have been misleading, and we find no error in the refusal of the court to give the same to the jury.

It is also claimed that the court erred in its general charge and its comments upon the special written instructions given to the jury before argument, but. no objection was interposed at the time and upon the whole record we think no prejudicial error resulted.

The next alleged error appears on pages 87 and 88 of the bill of exceptions. Barbara Deekham was permitted to testify over the objection of counsel for plaintiffs in error to declarations made to her by Lena Sehoeh, the wife of Frank Sehoeh, one of the plaintiffs in error:

“I was up there and I told the old lady what I think of her before she croaked.” And, “Well, she won’t eat a meal at my place; because if she had one she never would eat another.” Also, “If I go to the funeral I will wear red. I wore green at Mollie’s funeral; I will wear red at her’s. ”

Lena Schoch was not a party to the suit nor were the declarations made-in the presence of any such party. These declarations were after-wards denied by Lena Schoch when called as a witness. It was clearly erroneous to admit them for the purpose of impeaching the witness without having first laid the ground for such impeachment. It seems, therefore, that the objection goes rather to the mode of proof than to its substance, and the plaintiffs in error were not prejudiced thereby.

We think the declarations were also admissible for the purpose of showing the state of mind of the speaker and as circumstantial evidence of her purpose and design in treating the testatrix during her last illness with apparent kindness and affection.

The plaintiffs in their petition allege that the testator was coerced into signing the will by the undue influence of Lena Schoch and others. Testimony was offered at the trial tending to prove that Lena Schoch and her husband, Frank Schoch, had neglected and avoided the testatrix for a long time prior to her last sickness; that when she became seriously sick they became unusually attentive and caused her to be removed from her own house to that of the defendant, Frank Schoch, and at a time when the testatrix was not in a fit condition to be moved, and when there was no occasion therefor other than to have her near them and under the same roof. When considered in connection with this testimony the declarations tended to prove the ill-will of Lena Schoch toward the testatrix, and, circumstantially, that her affection for the testatrix was apparent and not real.

The same objection may be here made to the order of proof as the declarations were first offered. Aside from the question of admissibility, the declarations themselves seem not to have been prejudicial. Although they were not made in the presence of the testatrix or otherwise communicated to her, she refused to take food or medicine from the hands of Lena Schoch until assured by the physician that they were harmless. She seems, therefore, to have possessed a mind clear enough to discern the acknowledged purpose of Lena Schoch, and a will strong enough to resist her influence. In any view of the case, therefore, although the court might properly have excluded the declarations at the time they were offered, their admission was not prejudicial error.

The objection to the testimony, on page 436 of the bill of exceptions, was addressed only to a preliminary question and answer and no objection was made at the trial to that whieh follows and is now complained of for the first time. It will therefore not avail the plaintiffs in error.

The only other ground of error is, that the verdict is not sustained by sufficient evidence. After reading the voluminous bill of exceptions, we are not impressed with the great weight of the evidence urged by counsel for defendants in error, nor on the other hand, are we justified in holding th(at the verdict is manifestly against the weight of the evidence.

Judgment will, therefore, be affirmed.

Jelke and Swing, JJ., concur.


text:
    CONTRACTS — BIDS.
    [Hamilton (1st) Circuit Court,
    April 8, 1905.]
    Jelke, Swing and Giffen, JJ.
    State ex rel. Mathis Bros. Co. v. Cincinnati (Bd. of Ed.).
    ■1. Award of Public Contract made upon other Conditions than those in Original Specifications and Advertisement will be Enjoined.
    The award of a contract by a board of education for the installation of certain devices in a publie building upon a bid based upon terms' not contained in the original. specifications as advertised, and which was received subsequent to the time designated in the advertisement for the' submission of such bids, is illegal and void, and will upon application ■ in the proper court be enjoined.
    2. Mandamus will not Lie to Compel Award of. Contract to Lowest Legal Bidder where Attempt was made Later to Award on Illegal Bid.
    The award of a contract for public work by a board of education to the lowest responsible party submitting a bid at the time specified in' the advertisement therefor cannot be compelled by mandamus, where it appears that the board, without expressly rejecting the bids made at that time, attempted to award the contract on an unauthorized and illegal bid made at a later date.
    J. H. Cabell, for plaintiff.
    A. H. Morrill, assistant city solicitor, for defendant:
    The relator here is relying on irregularity of another’s bid, and it is well settled that no writ of mandamus will issue when the relator bases his claim on such grounds. Spelling, Extra. Rel. Sec. 1553; State v. Board of Education, 42 Ohio St. 374; State v. Commissioners of Printing, 18 Ohio St. 386.
    The relator must show a positive, clear right in himself to have the contract awarded to him. If he does not show this the writ must be refused. Spelling, Extra. Rel. Sec. 1370 and note 1; American Clock

      Co. v. Licking Co. (Comrs.) 31 Otío St. 415; Commonwealth v. Mitchell, 82 Pa. St. 343.
    If a public contract is awarded, and tbe contractor to whom the award is made fails to accept, mandamus will not lie on the relation of the next lowest bidder to compel the award to such bidder. State v. Shelby Co. (Comrs.) 36 Ohio St. 326.
    The contract which the relator here seeks to have awarded to himself is made under authority of a law' passed by the general assembly of Ohio, found in 97 O. L. 357. Under the section governing the letting of contracts by any school board, the board can award, any contract to the “lowest responsible bidder.” This power given to the board allows a discretion which can not be controlled by mandamus. Kelly v. Chicago, 62 111. 279; Commonwealth v. Mitchell, 82 Pa. St. 343; East River Gas-Light Co. v. Donnelly, 93 N. Y. 557; Madison v. Baltimore (Harbor Board), 76 Md. 395 [25 Atl. Rep. 337].
    The discretion vested in the board by the section of the act above referred to can not be controlled by the court. State v. Shelby Co. (Comrs.) 36 Ohio St. 326; Noble Co. (Comrs.) v. Hunt, 33 Ohio St. 169; State v. Moore, 42 Ohio St. 103; Meehem, Pub. Off. See. 945; State v. McGrath, 91 Mo. 386 [3 S. W. Rep. 846]; Hoole v. Kinkead, 16 Nev. 217; People v. Contracting Board, 27 N. Y. 378; Conner v. Board, 7 Phila. 629.
    A writ of mandamus will be refused if the granting of such writ would operate against the public welfare. Spelling, Extra. Rel. Sec. 1372.
    Or, if the issuance of the writ would compel an officer to act contrary to law. Meehem, Pub. Off. Sec. 942; People v. Hyde Park (Til.), 117 111. 462 [6 N. E. Rep. 33]; People v. Fowler, 55 N. Y. 252; Kemerer v. State, 7 Neb. 130.
   GIFFEN, J.

The relator avers in its petition that the board of education of the city of Cincinnati determined to erect a school building in Clifton, and caused it to be duly advertised that sealed proposals would be received at the office of said board until 12 o’clock noon, January 23, 1905, for material and labor necessary for the completion of said school building. That upon said day it filed with the clerk a bid for the installation of a heating and ventilating plant in said building for the sum of $24,200. That the specifications required bidders upon heating and ventilating to submit with their bids a proposition for smoke consuming device, automatic stokers, down draft furnaces, etc., to be considered. That accordingly, the relator specified in its bid for the furnishing of Detroit or Murphy Automatic Stokers or Hawley Down-draft Furnaces, for $1,500, to be added to said bid of $24,200, making its entire bid, with either of the above smoke consuming devices, $25,700. That said bid was in all other respects as required by law, and was the lowest responsible bid.

The relator further alleges that among other bids submitted in response to said advertisements was that of one Henry Niemes, which contained the following provision: “If the Hawley furnaces are installed in connection with the above work, I will furnish and install the same for the additional sum of $1,359;” but contained no provision to furnish Detroit Automatic Stokers. That on January 27, 1905, at a meeting of the building committee of said board, on advice of the mechanical engineer of said board, it determined upon the use of the Detroit Automatic Stoker; that the committee wrongfully ignored and refused to consider relator’s bid for the heating and ventilating system to be used including the furnishing of said Detroit Automatic Stokers, and requested said Henry Niemes to furnish a new bid based on the substitution of Detroit Automatic Stoker in place of the Hawley Down-draft or ordinary grates, as contemplated in his original bid. Said request was without notice to relator or the other parties who had submitted bids, and was without advertisement as provided by law. That thereupon said Henry Niemes submitted a new bid to include the Detroit Automatic Stoker for the sum of $24,462; that thereupon the committee agreed to recommend to the board the letting of the contract for heating and ventilating to Henry Niemes upon his new bid of $24,462.

The relator claims to have been wrongfully refused said contract and asks that the board of education be compelled by a writ of mandamus to accept its said bid. To this petition the board of education files a general demurrer.

It appears from the petition that the building committee wrongfully ignored and refused to consider relator’s bid, and inferentially it ignored and refused to consider each and every other bid received by it on or before January 23, 1905, but proceeded to award the contract upon a bid based upon conditions not contained in the original specifications and received at a time subsequent to that designated in the advertisement. It is clear that the attempt to award the contract in this manner is wholly unauthorized, illegal and void, which upon proper application to a court of competent jurisdiction should be enjoined.

It is claimed, however, by the relator, that the board of education having exercised its discretion to award the contract, may now be compelled to award the contract to the relator as the lowest responsible bidder. The board has not considered any of the bids received on or before January 23, 1905, and it is still open to the board to award the contract to the lowest responsible bidder, unless it be deemed to have rejected all the bids invited and received in pursuance of the advertisement by awarding a contract upon an independent bid received January 27, 1905.

It is perhaps unnecessary now to decide whether the action of the board amounted to a rejection of all the bids, because in either event the relator would not be entitled to a peremptory writ of mandamus. Counsel rely upon the case of Boren v. Darke Co. (Comrs.) 21 Ohio St. 311, but in that ease the commissioners attempted to award the contract upon one of the original bids received in pursuance of the advertisement but not to the lowest bidder, and the court, therefore, held that the commissioners could be compelled to award the contract to the lowest bidder. Revised Statutes 3988 (Lan. 6468), 97 O. L. 357, provides:

“None but the lowest responsible bid shall be accepted; but the board may, in its discretion, reject all the bids, or accept any bid for both labor and material which is the lowest in the aggregate for such improvement or repair.”

Clearly the discretion to reject all the bids refers to such bids as are received in pursuance of the advertisement and can not relate to an independent and wholly unauthorized bid received after the date fixed in the advertisement.

The relator has shown no right to a writ of mandamus and demurrer to the petition will be sustained.

Jelke and Swing, JJ., concur.


text:
    APPEAL — BONDS.
    [Hamilton (1st) Circuit Court,
    1905.]
    Jelke, Swing and GifCen, JJ.
    Henry Dieckmann v. August Hunt et al.

      Sureties not Liable on Appeal Bono, where no Judgment Ordering Principal to Pay Anything.
    Sureties are not liable on an appeal bond conditioned that the principal shall abide the order, judgment or decree of the appellate court, and pay all moneys, costs and damages which are required of him by such court, where the judgment of the appellate court, while adverse to such appellant, did not order him to pay anything in the way of costs, penalties, damages or interest.
    Error to Hamilton common pleas court.
    Renner & Renner, for plaintiff in error.
    Fulton & Woost, C. A. Groome and F. E. Niederhelman, for defendant in error.
   GIFFEN, J.

This was an action in the court of common pleas of Hamilton county, brought by Henry Dieckmann against August Hunt, Henry Hoffeld and Katherine Steinkamp, administratrix of the estate of H. Louis Steinkamp, on an appeal bond executed in the insolvency court of Hamilton county, Ohio, on March 19, 1900, by said August Hunt as principal, and the other two defendants as .sureties.

The bond was given in an action pending in the insolvency court in re assignment of Henry F. Stothfang, of whom August H. Bode was assignee. By the consideration of said court, said August H. Bode, assignee, was ordered to pay to said Henry Dieckmann the sum of $1,000 with interest at the rate of 6 per cent per annum from May 12, a. d. 1899. From said order the defendant, August Hunt, an intervening creditor in said cause in said insolvency court, took an appeal to the common pleas court of Hamilton county;' Ohio. The conditions of said bond were such that—

“Whereas, on March 13, a. d. 1900, the court of insolvency of Hamilton county, Ohio, made an order in re assignment of Henry F. Stothfang, No. 3413, finding a lien in favor of said Henry Dieckmann on a certain lot of whiskey and ordering that August H. Bode, assignee therein, pay to said Henry Dieckmann the amount of $1,000, with interest from May 12, 1899, on account of said lien, and whereas the above named August Hunt having given notice of appeal to the court of common pleas of said county; now, therefore, the condition of the above obligation is such that if the. said August Hunt shall abide the order, judgment, or decree of the appellate court, and shall pay all moneys, costs and damages which may be required of him by such court, then this obligation to be void; otherwise to remain in full force.”

On appeal to said court of common pleas, said court directed said August H. Bode, assignee of said Stothfang, to pay to said Henry Dieckmann or to Renner, Gordon & Renner, his attorneys, the sum of $1,000, with interest at the rate of 6 per cent per annum from May 12, a. d. 1899, which said order was affirmed by the circuit court of Hamilton county on October 27, 1900, which affirmance by said circuit court was also affirmed by the Supreme Court of the state of Ohio on May 13, 1902.

The petition alleges that said August H. Bode paid to said Henry Dieckmann the sum of $773.71, and that there is a balance due said Henry Dieckmann from the defendants amounting to $461.62, with interest from October 14, 1903, and for which judgment is asked with cost. To this petition each of the defendants filed demurrers, which demurrers the court sustained, and thereupon plaintiff filed an amended petition which, on motion of the defendants, was stricken from the files. Whether or not the court was right in striking the amended petition from the files, we do not think it necessary to discuss, for the motion to strike the petition from the files was probably treated as a demurrer, and as the plaintiff did not desire to plead further, it was ordered by the court that the defendants go hence without day and recover the cost from the plaintiff.

The petition does not state a cause of action against either of the defendants, for the reason that there was no judgment ordering Hunt to pay anything. Neither the court of common pleas, the circuit nor the Supreme Courts directed that Hunt should pay any costs, interests or damages; therefore there was no breach of thig bond, the language of the bond being that said Hunt shall abide the order, judgment or decree of the appellate court, and shall pay all moneys, costs and damages which may be required of him by such court. None having been required, there is no breach of the bond.

No doubt it was within the power of said appellate courts to have rendered judgment against said Hunt for costs, penalties, damages and interest, but defendant in error in such proceedings evidently did not ask said court to render any such judgment,' and none having been rendered, we do not see where the bond has been broken.

Judgment affirmed.

Jelke and Swing, JJ., concur.


text:
    INSURANCE — ASSOCIATIONS.
    [Hamilton (1st) Circuit Court,
    July 29, 1905.]
    Jelke, Swing and Giffen, JJ.
    State ex rel. Ellis v. Ohio Fire Ins. Assn.
    1. Mutual Protection Association mat Collect Assessments before Actual Loss Sustained.
    A mutual protection association is authorized by the provisions of Rev. Stat. 3686 (Lan. 5895), regulating the collection of assessments, to collect sums of money from its members in'advance of any loss being sustained and assessment made therefor, whether done directly or through a trustee.
    2. No Ouster for Immaterial Variance between Annual Report and True Condition of Insurance Association.
    A judgment of ouster against a mutual protection association will not be granted for immaterial variations between the report required to be filed by Rev. Stat. 3690 (Lan. 5899) with the superintendent of insurance and the true condition of such association.
    W. H. Ellis, R. J. Mauck and C. F. Williams, for plaintiff.
    L. H. Pummill, for defendant.
   GIFFEN, J.

The collection by the defendant corporation from its members of certain sums of money in advance of any loss being sustained and assessment made therefor, whether done directly by the company or through a trustee, is authorized by Rev. Stat. 3686 (Lan. 5895), which provides that the members—

“May make, assess and collect upon and from each other such sums of money, from time to time, as may be necessary to pay losses which occur by fire * * * to any member of such association, and the assessment and collection of such sums of money shall be regulated by the constitution and by-laws of the association.”

The allegation that the defendant corporation did not on January 1, 1905, file with the superintendent of insurance of Ohio, a true statement of the condition of such association on the thirty-first day of December next preceding, is sustained by the evidence, but the variation between the report and the true condition of the company is not such as to warrant the court in granting a judgment of ouster.

The third ground in the petition is not sustained by the evidence, and we are of the opinion that the petition should be dismissed, which is accordingly done.

Swing, J., concurs.

Jelke, J., dissents.


text:
    ADMINISTRATORS AND EXECUTORS.
    [Hamilton (1st) Circuit Court,
    1905.]
    Jelke, Swing and Giffen, JJ.
    Orville W. Ballard et al., Exrs., etc. v. Alfred Mack et al., Exrs., etc.
    Want of Notice of Motion for Fixing of Fees of Executor for Special Services Deprives Court of Jurisdiction.
    A court is without jurisdiction to hear and determine a motion to fix the compensation due an executor and trustee for extraordinary services in such capacity, where no notice of the pendency of such motion was given to the beneficiaries under the will.
    Error to Hamilton common pleas court.
    Morse, Tuttle & Harper and W. W. Prather,, for plaintiffs in error.
    Cohen & Mack, for defendants in error.
   GIFFEN, J.

This case arose in the probate court and was tried upon the following motion:

“R. H. Henry, Ella B. Henry and Alfred Mack, executors of J. D. Henry, deceased, move the court to fix and determine the amount of commissions due to said J. D. Henry as executor and trustee of said George K. Shoenberger, deceased, and also the amount due to him for his extraordinary services as such executor and trustee.
“Maxwell & Ramsey,
“Attorneys for executors of J. D. Henry, deceased.”

The probate court allowed to the estate of J. D. Henry as compensation for his services as trustee, the sum of $10,000, and upon appeal to the common pleas court a like sum was allowed. To this judgment error is prosecuted to this court.

No notice was served upon any of the beneficiaries under the will, and it is therefore claimed that the court was without jurisdiction to hear and determine the motion.

Revised Statutes 6402 (Lan. 9978) provides: That “notice be published in some newspaper of the county, of the filing of any accounts by executors,” and Rev. Stat. 6329 (Lan. 9896) provides: That a like notice be issued, “requiring all persons interested, to attend the settlement of a trustee’s accounts.”

An account by an executor and the settlement by a trustee embraces all matters done by the executor or trustee which affect the substantial interest of the estate or the beneficiaries therein. The compensation claimed by an executor or trustee other than the percentage fixed by the statute is as important an item in the-account of an executor or in the settlement by a trustee as any other claim allowed and paid out of the estate.

Counsel claim that the case is similar to that of a referee or receiver, but in each of those cases, the parties are before the court and are bound to take notice of all proceedings therein, including the allowance of a fee for referee or receiver.


text:
    TRUSTS AND TRUSTEES.
    [Hamilton (1st) Circuit Court,
    May 27, 1905.]
    Jelke, Swing and Giffen, JJ.
    Koehnken, In re.
    1. Trustee Released from Liability for Misapplication of Trust Funds bt Acquiescence of Beneficiary.
    Acquiescence on the part of a cestui que trust in a wrongful conversion of trust funds by a trustee will operate to release the trustee as such, and his bondsmen, from liability to such beneficiary.
    2. Executor’s Account not Opened for Conversion of Trust Funds when Same was Acquiesced in by Cestui Que Trust.
    A petition for citation against an executor alleging that certain bonds which came into his possession as executor were never delivered to the beneficiary according to the terms of the distribution, does not. state facts sufficient to open’ the account of the executor for fraud or manifest error under the provisions of Rev. Stat. 6190 (Lan. 9732), where it appears that the beneficiary acquiesced in the misapplication of such bonds by the trustee.
    Error to Hamilton common pleas court.
    O. W. Kuhn, for plaintiff in error.
    Goebel & Bettinger, for defendant in error.
   GIFFEN, J.

This action was originally commenced in the probate court upon a petition for citation against Herman H. Koehnken, as administrator of the estate of John H. Koehnken, deceased, in which it was alleged “that among other things there came into his hands as such administrator a large amount of United States bonds. That in a distribution, which' was made about June 3, 1899, of said bonds the share of the widow, said Anna C. Koehnken, of said bonds was $6,000 and was then and there to be delivered to said Anna C. Koehnken, but as this petitioner is informed and believes said bonds were never i¿ fact delivered to said Anna C. Koehnken.”

The probate court and common pleas court treated the citation as an application for leave to open up the account filed by said administrator, June 23, 1899, in said probate court, and as an exception thereto.

, It is now claimed that the petition does not state facts sufficient to constitute a good cause of action, inasmuch as it contains no allegation of fraud nor of manifest error, as required under Rev. Stat. 6190 (Lan. 9732). It is admitted by the administrator that he wrongfully converted the bonds to his own use by pledging them as collateral security for a loan in the Equitable National Bank; and that the receipt taken by the administrator from Anna C. Koehnken and filed with the probate court in the final settlement of his account showed a payment of $7,641.24, whereas in fact only $831.24 was paid. While the petition and the finding of the common pleas court fail to show any actual fraud on the part of the administrator, they do show a manifest error, unless otherwise explained. The theory of the defense was that Anna C. Koehnken acquiesced in and ratified the wrongful act of the administrator, and looked to him as an individual for the restoration of the bonds or the payment of their value in money.

Upon this issue, the court of common pleas made no finding, but we think the evidence warrants the conclusion that, although at the time when she executed the receipt she may not have known that the bonds had been pledged and were beyond the control of the administrator, she a short time thereafter was fully informed of the facts and acquiesced in and ratified the act of the administrator. This is evidenced by the testimony of the administrator himself, which to some extent is corroborated by the testimony of Emma C. Koehnken, a daughter of Anna C. Koehnken; and by the fact that although Anna C. Koehnken survived for a period of eighteen months after the account of the administrator was settled in the probate court, she took no action during her lifetime to impeach the account of the administrator or otherwise charge him as a trustee with the obligation to return the bonds or their value. That the acquiescence of a beneficiary in a wrongful application of a trust found by a trustee releases the trustee as such and his sureties from liability to the beneficiary has been decided in the eases of Pope v. Farnsworth, 146 Mass. 339 [16 N. E. Rep. 262], and Dyer v. Riley, 51 N. J. Eq. 124 [26 Atl. Rep. 327].

We hold therefore that the judgment of the court of common pieas is not sustained by sufficient evidence, and will be reversed, the cause being remanded for a new trial.

Jelke and Swing, JJ., concur.


author: WALTERS, J.

text:
    COURTS — INSURANCE.
    [Lawrence (4th) Circuit Court,
    October, 1905.]
    Walters and Cherrington, JJ.
    David Evans v. J. W. Moore, Admr.
    1. Decision of Supreme Court Limited to the Particular State of Facts Involved, and Enunciating no Governing Principles in Syllabus, not Absolutely Final.
    A decision by the Supreme Court of this state will not be construed by an inferior court to be absolutely decisive upon a question of substantive law where it appears that the court confined itself in the consideration to the particular state of facts involved, and no syllabus was prepared enunciating general governing principles thereon, if good conscience and public policy dictate a contrary decision.
    2. Life Insurance Policy not Assignable to One not Having Insurable Interest, WHEN.
    A policy on the life of a person is not assignable to one who has no insurable interest in the life of the deceased, and whose sole interest therein would rest upon a mere speculative or wagering basis. Eckle v. Renner, 41 Ó. S. 232, distinguished.
    3. Rule as to Insurable Interest Applied.
    M, a married woman, the owner of three policies of life insurance upon her own life, transferred the same by proper assignment to E, he having no insurable interest in her life, in consideration that he would pay all premiums thereafter until her death, and after her decease pay her burial expenses and remove the bodies of her deceased mother and sister from an old to a new cemetery. The balance left from the proceeds was to be the property of E. M at the date of the transfer, was in poor financial circumstances, in failing health, afflicted with consumption which caused her death within eighteen months after the assignment: Held, E could recover, only the amounts he had paid, with interest.
    [Syllabus by the court.]

      ERROR to Lawrence common pleas court.
    C. E. Belcher, for plaintiff Jin error;'
    Johnson & Corn, for defendant in error-.
   WALTERS, J.

The c^se.,pf jDayifl =H., Eyans.-v.. J. ,M9ore.,..as administrator of Georgia .Hamilton Moore is in this’court on petition in error. In 1899, Georgia Hamilton, being then single, and a resident of this county and a young lady about twenty-one years of age, took out three several policies of; insurance upon her-life,1 in what is known/,as’ the industrial companies. On November 2, 1902, she was married to the now defendant in error, J. W. Moore. On April 24, 1903, she executed what purported to be an assignment or substitution of the beneficiaries named in the policy, by which assignment or, substitution she named the plaintiff in error, David H. Evans. And such assignment or substitution of the beneficiary was "addressed to the company and signed1 by her and witnesses, providing that.in the case, of her death before the said David H. Evans, that the money should be paid upon these policies to the said Evans. In October, 1904, Mrs. 'Moore died. Before her death, how.ever, she instituted, a suit - in replevin to recover the, possession of the po&cies named; claiming that she was the owner of the same and therefore entitled to the- possession. The. case was tried after her de¿th, the administrator -being substituted in her person and- stead; and, a jury having been, waived,"the case'was submitted to the court below upon all .th.e evidence, and the. exhibits,, the court finding judgment for the plaintiff below. Error is prosecuted from that judgment. There are a number of errors assigned, only a few of which are relied upon.

In the first place it is claimed by the defendant in error that the plaintiff in error, David H. Evans, having ho insurable interest in the life of Georgia Hamilton, that' she could not make him a, beneficiary, either by assignment or otherwise. It is claimed, however, on behalf of the defendant in error, that the Supreme. Court of Ohio has decided that question. • ■ • ' . • .

. . "..There is ' a'straight .and square conflict in the authorities in the courts of 'the various states as to whether or not a person not having an /incurable interest in'the life of the insured can take and -accept, by assignment of, - or original, policy -taken out in the first- place upon the . life pi the insured — that no, person except .those who .¿re related by blood or affinity or who are the creditors or the sureties of the insured and those having some insurable interest in the' life off the person insured can take a transfer or assignment of the policy.

The largest number-'of-the'state courts-of the-'‘Union !(a collection of cases-is -made dn Elliott','• Insurance)'' ‘se'ems'- to be'in - flavor "of the doctrine that a-policy of life insurance is like any other chose in: action, and may pass ’by-‘assignment, regardless of the'insurable interest that the assignee'inay have in the-life-of the-irísúfed. '-The United States'Supreme'.'Court'and’the federal'courts generally, and quite-a number-of ‘ state courts' hold to thé Other'proposition'and principle, that: neper son except -those having insurhble‘interést -in 'the life of1 the insured can - take’such'an-assignment of a-polrcy; that it’is a ■'Wagering contract ;■ that - it is against public'policy, and therefore'void; that it stimulates.-and creates a- desire on the part'of the person^'receiving the assignment-that the death Of' the’ insured may: be-hastened/ And it is- set out-'by' the authorities that'Claim the opposite doctrine that the persons whó stánd in the relation to the insured growing-out 'of affinity or -contingent - affinity,' blood, or a‘debtor or surety, have'a tie'that-'interests them in the continuation, of the life of-the insured; a áort of'correlative proposition1 that--Offsets the interest or desire they may have tó hasten the death of the insured'.

It is claimed, however, that -the Supreme Court of Ohio, in the case of Eckel v. Benner, 41 Ohio St. 232, decides this question in'favor of the assignment of-policies to those who have no insurable interest. It seems that, in this case, a-gentleman took out a‘policy of insurance'upon his own life, for his-own benefit, and kept it alive'by the due payment of premiums, for the'sum-of' one"thousand'dollars.' Hé had neither wife nor child, -but became fond,- -it is said, of á child about nine years of age, the daughter of a friend of his-, -and -that -he assigned the policy to her'and delivered-the-policy to-her father for her.- He subsequently died, during1 the minority of the child:" It was held that one who has obtained- a valid insurance upon his' own life, may -dispose of it as he sees fit in the absence of prohibitory'legislation, or contract stipulation-. It is immaterial,-in such case, that the'assignee has no incurable-interest in the life.

It will be observed; • by the facts already stated in this case, that they contain no element of ■ traffic or contract relation or burdens assumed on the part of the'donee or-transferee of this-policy to the person whose life was insured; that the assignor' paid' all the premiums, both before and' after the assignment,'and delivered it-to the father-of the child; that the child’was only nine years of áge, and-was,' at the'time,, and perhaps düring all the-time of her minority and'-until the decease of the 'assignor/incapable'of -entertaining' any desire for the death' of the-insured;" : ■ ■ :-¡ • , ■ ...

It will be further observed that no burden was east upon the assignee, the child, or the father of the child, by way of the payment of premiums or any other thing to be performed. In other words, that it was purely and simply a gift from the insured, who had neither wife nor child, to this child that he had become fond of; 'that the paper policy evidencing the gift- itself was delivered to the father, properly assigned, to be delivered to the child and for her. Therefore it would seem evident, from the facts in that case, that it was simply the execution by delivery of the gift of the policy; no one dependent upon the payment by the insured of all premiums thereafter; no burden cast upon the assignee to do anything; no contract or arrangement entered into by the insured and the assignee, the child, or the father for her, that he was to do any single thing by way of accepting and assuming any burdens in that relation.

Now, this ease has often been cited by courts and by counsel in cases involving the delivery of gifts from donor to donee as showing when the delivery tabes place, in fact, as often cited for that purpose as any other; while in the text-books on insurance it is cited as authority in Ohio for the proposition that one having no insurable interest may take, by assignment, a policy of insurance. But it will be observed that the holding of the court goes beyond the facts in the case. It may be further observed that the court in tlie case did not publish any syllabus to the case; and, as we all know, the syllabus contains the law of any case decided since, I believe, 5 Ohio State. No syllabus appears in any published reports of this case. I have given, substantially, the whole of the case — a case of such importance that if the Supreme Court untended to lay down such an important rule in regard-to the transfer of life insurance policies, it would seem that some consideration would have been given to the case; a fuller statement made; the syllabus would have been published and the authorities more or less reviewed. We must take all decisions of all courts as referring to particular facts that they have under consideration; and, as I have before related, the facts in this case did not warrant the court, nor perhaps did the court intend to lay down the general rule in regard to the transfer of life insurance policies. At least, the facts did not warrant it.

We are, therefore, of the opinion that so far as that case is concerned and the facts stated upon which the decision is based, it does not contain a statement of the law of Ohio on that subject. Being, therefore, without any recognized authority, as we view it, in Ohio, in regard to the .assignment of such policies to persons having no interest in the life of the insured, the matter rests with this court as an initial proposition. And, there being a conflict of authorities in the different states of the Union — a square conflict — in regard to it, we should be governed more by the reason and logic of the different propositions than by the decided cases, unless their reasons appeal to us. Therefore, it is not in the number of decided cases we must look to' find the true principle which should govern, but rather to the right reason and the better reason and the better logic that underlies the truth to be decided.

As we said before, and as set out by Justice Field in deciding the case of Warnock v. Davis, 5 O. F. D. 103 [104 U. S. 775, 783; 26 L. Ed. 924], decided in 1882, persons who take out and who become the assignees of the policy of insurance upon the life of another in whose life they have no interest, no interest by blood, love, natural affection, by debt created, or a surety or liability incurred which would offset the desire on the part of the assignee to hasten the death of the insured, rest their interest upon nothing but a speculative or wagering basis.

Take the facts in this case. The plaintiff in error, Mr. Evans, according to his own statement, was to receive these policies, and to receive them upon this condition: That he was to pay the premiums on the policies during her life and, at her death,, he was to bury her and disinter the bodies of her mother and sister and brother I believe, who were buried in the old Nelly cemetery, and transfer them to the new cemetery. There was a direct contract — the contract that he was to have these policies after those expenses were paid out of the policies.

All in excess of the money that he paid out, or that he would have paid out after the death of the insured, Georgia Hamilton Moore, in burying her and removing the bodies of her mother and other members of her family — the balance was to be his. Now, as Justice Field says,, all over and above this actual outlay rested in — What? A pure speculation, a wagering, if you please, upon her death. No tie of relationship, no blood, no natural love or affection, no debt, no surety upon which she was bound for her debt, no obligation in the world rested upon him, outside of the premiums that he might pay and these other debts for the transferring of the bodies and her burial; and as to what was over and above that, it was simply speculative and wagering, depending upon her death, and he, Evans, would have a direct interest in hastening her death. As in other cases just , like this, we have the same spectacle in the court here of a woman insured, in failing health, for some time before she died afflicted with consumption, all parties and she herself knowing that it was only a question of a short time when she must die; and then we have the unseemly spectacle that we have had in this case - in. .thisVicourt,-. of. a-.fight' before .the'.death.,of-..the, insured for .the1'money.

Now, to prevent such:‘things .as.-that, to prevent this .speculation, this wagering, the healthy, rule, as..we think, has .been.-adopted,by the United States • Supreme‘Court, .and the* federal courts,-, by. which they-say that’a'person-having mb--insurable interest,: a‘Stranger-to the, blood, .to . whom no debt is Owing by the insured,-no.¡surety or other .contract obligation by the-.assignee--forAhe insured- .by. which to .offset-the -desire on the-part Of the transferee' to'1 hasten the’death, of the insured — that under- such circumstances — ~it seems;-to us- that,the,better rule)..the rule of public-policy,' the--rule which would-forbid,and.-,shut out .just* such eases as "the'one'We ha-ve mow-hefore-us, isthewisei and beneficent, rule based upbn principles of-public-policy..- That1 fio person, should, .be .allowed to speculate or-wager-upon-the-.death of another, and .then do those things or create a1 desire in the:-breast- of the assignee of the person insured-where he would reap-the'direct;.money value should .death,.be brought about. •••.■ . .-- , ■ .v, .. ... .i . •

-Now-,'it'¡is-useless-for-;us to -go-Over ..the-,authorities, . May and Elliott On Insurance- both. lay. down -■ both • principles and give --the., authorities'and states'that-hold'themv¡and it.,would be -useless • for.,us to go nver"the authorities. >pro and con.-, They come' down .simply..to ,the-one simple, naked proposition. -It. is .said by .counsel that'the. case, of Eckel v. Renner, supra, has become the rule as-it were,'in regard to life insurance policies-,in'Ohio-,, and that they-havd since-that, ease was decided- been-transferred‘.ad' Kbitum,), the-same, tas-any. other chose, inaction- is assigned and-transíerred; and-that'it-would-interfere.-with-the-business arid'coimmer'eial'frdde that-has already, been instituted, .pid the business relations of-the;-people between1 tbe insured and, the .assignee, or those' holding policies - would- be-, disturbed, -We- cannot hold-to, .that .view for the reason that the view we do hold makes,safe and sound and whole any person who -has ’advanced money under circumstances like-this, in regard-to' policies,■- and- that-he must-be paid -his- advancement, together with 6 per cent-interest.' ■ And-certainly-,if -those advancing .or .trading in-policies -get hack -what-they have, paid,.-with, the.-usual-interest, they cannot complain and-Would-be protected.1 y-..

Now, it is hardly'necessary-for-the court'to go, into--an examination o'f’thid reeord- but we’will examine'one or .two exceptions,,briefly. Mr. O’ShaughnesSy was'called1 as’fi'witness''for,defendant,!-,,On,page,29 of the reeord he-'was disked this- ¡question: ,;

“I 'will' ask!;yo'u'-if->Mr..;‘'Hamilton'said-‘anything with- reference. to. tbet eb,an,ge of .beneficiary, and transfer, >of tbe policies? • Whatdid-he -say?”

. Objectipn was made by. the defendant and.’the objection-sustained. Counsel for defendant stated.,that ;thpy,. expected witness to.state■ that Mr. Hamilton, beneficiary tinder one ¡of the policies, was present and consented to the change, and, stated,,that, jhe had been. advising, his daughter to,’make the.change. He^was then asked, substantially,..the same, question; to which he testifiejdj¡that.M¡r., Hamilton said.,he had. been advising his" daughter to turn them over to,,Mr. .Evans; it wa?..the best thing [she eonld do, for. .he couldn’.t help her; and fhe.boy, copldn/t,help her, and he knew that Evans would treat tjrem,.right... The question ¡that was answered wás, substantially, ¿he one ¡that the c.ourt ruled put-!,; .....

On page.31, on redirect examination,, , the,.same, .wjtne^ ¡was-.asked:

“I will ask you if, in,that.¡conversation, Mr.,Hamilton;made-«this-■statement, in answer to, a,.que§ti,on from me, whether,he kne,W'-what -the agreement was between Georgia and Evans: ‘ It was the understanding that he was to pay, the .doctor bill and the funeral expenses, apd,,buy a lot in Woodland and! also give me money to raise my,people in. iapUyis. graveyard — fiye up fhpre.’ Did you heqr him, m.ake th?f statement.?.1! \

Objection by defendant, .and objection sustained. -.Then...the-'following. question:-

“I will ask.you if.you .heard-him- say-in that sainé cohversatíonj-'in" .answer, to this, question,: , ‘.You never, heard, -the- agreement' kbetvideir Georgia and.-Dice? ■ . If.ha said, ‘I heard it talked -over1 dn the h’óiisé-’ frequently.’ And then this -question, was asked' him': Whit^h'' you say it was.?!. And did he,say; ‘He 'was-to. pay the doctor'billV^Ybit1, expect a .person to.be sick before'they die. - And-giVe hér' a'; fiíSt-eláS^' funeral; buy a lot in Woodland and raise iny family 'Or givé ih‘e 'ifrotíéy' •to raise ..my. family, and. take, them-to Woodland..' Three'boys '-small fellows.’ Did he say.,fhat?’’. And .the. answer was “Yes; sir-yhe-did1.1”’

,, That, is substantially the-same question-as before,'the sahfé' purport ■and meaning;, and-no.-substantial-prejudice-eould"arise.

.This question'was-askted'of Mary B’arr'Oh:'

' - “Stat’d tdthe’dótirt tfhat that conversation was.” (This.is a conversation she' had'"faith 'the deceased.) “A. I asked her if. her, being married now 'wóiil'd make any' difference with these policies, .and, ghg said, ‘NO,' she' didn’t'think* so.’' ” ’ , ¡,.

This answer, pn mption^pf, plaintiff,, was, excluded. -..That;-it a-p^; pears to jthe eourt,(was not substantially evidence, but-simply an,-opinion! that she expressed, that she didn’t think her marriage would have anything to do with the policies.

On page 57, Mrs. Mayne testified that Mr. Moore came to her house and they had a conversation something like this:

“He came to my house and told me his reasons for coming. I says ‘I can’t go and testify a thing in your favor.’ And he says ‘You can swear I was good to my wife,’ and I says,. ‘Yes, I can; but that has nothing to do with Evans carrying this insurance long before you knew that family.’ I says, ‘You was only married to her such a few months, why do you want what is rightfully Mr. Evans’?’ And he says, ‘I took out insurance for my wife after I married her. That is why I want her insurance.’ That’s just the conversation we had.”

Now, that did not bear upon any issue in the case. It was simply a conversation as to what she knew; and nothing was expressed in the conversation of any material value, reflecting upon the issues in the case.

On page 58, the funeral director was called and asked whether or not Evans had come to make any arrangements, after the death of Mrs. Moore, as to her funeral, and the court excluded it. There was no contest, so far as the issues in-this case are concerned, as to the fact that Evans was ready and willing to perform his part of the contract. No issue was made as to that anywhere in the evidence; and the evidence being objected to and then offered on the part of Evans again when Evans testified-, was then excluded by a remark of the court that it didn’t make any difference, it seems to us it would not; because, by the objection, the defendant himself would be estopped from afterwards claiming that no effort was made on the part of Evans to carry out his promise to bury the deceased.

Now, there has been a great deal of argument here as to the question whether or not this judgment was against the manifest weight of the evidence. As to that, we have but little to say. We might go over all this evidence in detail, and at the same time would not express1 our opinion upon the subject any clearer than to say we have listened patiently and have read considerable of the testimony outside of that read by the attorneys, in our consultation. The whole case of the plaintiff below rested upon the testimony of Mr. Hamilton, the old gentleman. His testimony is indefinite as to the time the conversation took place or where it took place; but he does say that he heard it, and that Evans agreed ydth his daughter at that time that he would take the policies, and he was to bury her and take up the bodies of his wife and three little children from the old Kelly cemetery and remove them; and she had the right to have the policies returned at any time during her life, upon her demand, and upon her paying to him what he had expended, together with 8 per cent interest.

If the old gentleman is to be believed, this would probably make out the case. But, as opposed to this is the declaration, or the declarations, of the deceased, Georgia Hamilton, as to what the contract was-, the testimony of Mr. Evans as to what it was; and the larger number of witnesses who testified by way of contradiction to Mr. Hamilton and what Mr. Hamilton said, up in the office of Mr. Belcher, where he made no such claim as that the policies were to be returned to her in her lifetime, upon her demand, and that she was to pay Evans what he had paid out, together with 8 per cent interest. No mention was made of that in any conversation detailed by any witness with Mr. Hamilton; but he always stopped short of that and said that he was to pay the. funeral expenses and to disinter the bodies of his wife and children and to pay her doctor bill.

It devolved upon the plaintiff below to make out his case by preponderance of the evidence; and if we were deciding the. case, we would have to say it was manifestly against the weight'of the evidence and would so do. But for the ruling of the court upon the proposition of the law, the case would be reversed. As it is, the ease will be affirmed.

Jones and Cherrington, JJ., concur.