text:
    CORPORATIONS — ERROR-VERDICTS
    [Cuyahoga (8th) Circuit Court,
    May 8, 1911.]
    Henry, Jones and Dustin, JJ.
    Judge Jones of Fourth Circuit, and Judge Dustin of Second Circuit, sitting in place of Judges Winch and Marvin.
    Sam Degraw v. Emma R. Lampert, Exrx.
    1. Director not Conclusively Presumed to Know Transactions of Board.
    In an action for damages for false representations as to the rate of dividends paid on stock which plaintiff was induced to buy of or through a director in the company, it is error to chargé that if the jury found defendant to have been a director, knowledge of the truth or falsity of his assertions as to the dividend rate are conclusively imputable to him.
    2. Directing Verdict for Party Holding Burden of Proof Held Erroneous.
    It is error to instruct the jury to find on any point in favor of a party holding the burden of proof as to such point, unless the same is admitted by the opposing party in such wise as to dispense with proof, or unless .the law attaches to such evidence as is produced the quality of being conclusive proof.
    Error.

      M. B. & E. E. Johnson, for plaintiff in error.

      Ford, Snyder & Tilden, for. defendant in error.
   HENRY, J.

The action below was begun by the decedent, Joseph R. Lampert, in his lifetime to recover damages for fraudulent representations alleged to have been made to him by the plaintiff in error about the rate of dividends that had been and was being paid upon certain shares of stock which Lampert subscribed for or purchased in an oil company whereof plaintiff in error was a director. Many errors are alleged, but we deem it necessary to mention but two, remarking merely that we regard the others unfounded.

The court charged that if the jury found plaintiff in error to have been a director, knowledge of the truth or falsity of the assertions made by him in regard to the dividend rate was conclusively imputable to him. This is defended upon the theory that a declaration of dividends is a function of the board of directors of a corporation exclusively, and therefore, the subject being peculiarly within their knowledge, directors must be conclusively held to have knowledge of the facts. Against this contention is cited the case of Mason v. Moore, 73 Ohio St. 275 [76 N. E. 932; 4 L. R. A. (N. S.) 597; 4 Ann. Cas. 240] wherein it is held that, ‘ ‘ The directors of a bank are not held as a matter of law to know all its affairs or what its books or papers would show, and such knowledge can not be imputed to them for the purpose of charging them with liability.” A majority of the court think the case at bar is within the principle of this rule. So far as third persons are concerned a director is under no duty to know or ascertain the facts concerning the business transacted by the board of which he is a member. And it often happens that he is in fact ignorant of transactions which it was his province to have participated in with the other directors. It must be borne in mind that for the purpose of examining the correctness of this part of the charge, we are concerned not with what the plaintiff should have known, nor yet with what he actually knew, but simply with what he knew by conclusive presumption or imputation in virtue of his office, and we hold that the charge as given was erroneous.

The charge is further complained of in that it directed the jury, in case they found for the plaintiff, to assess his damages at the full amount paid for the stock, with interest. This instruction is sought to be justified upon the ground that .It was conceded that the corporation which issued the stock had been dissolved and that the stock was therefore worthless. But a corporation may be dissolved without its stock becoming valueless. Whether there were or were not assets of this corporation distributable among or recoverable by its stockholders does not distinctly appear; but whatever the facts, it was encumbent upon the plaintiff to prove his damages. It is immaterial, therefore, whether plaintiff offered some or no eyidenee on the subject of his damages in support of the burden which thus rested upon him to prove the same. For it is elementary that a court ean not instruct the jury to find on any point in favor of a party holding the burden of proof as to such point, unless the same is admitted by the opposing party in such wise as to dispense with proof, or unless the law attaches to such evidence as is produced the quality of being conclusive proof. Generally speaking a verdict can not be directed either wholly or in part in favor of the party chargeable with the burden of proof. We hold, therefore, .that it was erroneous, upon the state of evidence in this case, for the court to charge the jury unconditionally to assess damages in any specific sum, in case they found for the plaintiff.

For these two errors in the charge, to-wit, that a director is conclusively presumed to know what his corporation paid or is paying by way of dividends, and that the measure of damages was in the sum stated by the court, the judgment is reversed and the cause remanded.

Jones and Dustin, JJ., concur.


source: Caselaw Access Project

author: HENRY, J.

license: Public Domain

text:
    CONTRACTS
    [Cuyahoga (8th) Circuit Court,
    May 8, 1911.]
    Henry, Dustin and Jones, JJ.
    Judge Dustin of Second Circuit, and Judge Jones of Fourth Circuit, sitting in place of Judges Marvin and Winch.
    Findlay Brothers Co. v. L. W. Eiser.
    1. Burden of Claim of Modification in Original Contract not on Defendant Asserting It.
    When plaintiff sues upon a contract and defendant answers that the terms of the original contract had been modified by a new contract entered into between the parties, it is error to charge: “It is claimed here by the defendant that a new contract was entered into between the parties, modifying the old one in a certain particular. The burden upon that subject, gentlemen of the jury, is upon the defendant.”
    2. Instruction to Ascertain Amount Due Plaintiff and Amount Due on Counterclaim and Strike Difference for Verdict, not Erroneous.
    In an action by a traveling salesman to recover the balance due him for his services, wherein the employer has filed a counterclaim, it' is not error for the court to charge the jury, “I suggest that you first ascertain what, if anything, is due the plaintiff under these contracts, then ascertain what, if anything, is due the defendant under its counterclaim, and strike a difference and in whose favor your difference is, so will be your verdict,” even if it might be that under the different views of the contract set up by the two parties it would be impossible that the plaintiff could recover on the petition and at the same time defendant recover on his cross-petition.
    Error.

      R. A. Couse, for plaintiff in error.

      Albert Mendelsohn and Theodore L. Strimple, for defendant in error.
   HENRY, J.

Eiser sued the Findlay Brothers Co. for balance dne as traveling salesman under contracts dated August 1, 1906, and March 20, 1907. Under the first contract covering the period from September 1,1906, to March 1, 1907, he was to have “10% commission on the net proceeds of his sales, as per ledger footings.” Under the second contract covering the period from July 1, 1907, to July 1, 1908, he was to have “$1,000 per year, to be paid monthly, and 2% commission on all goods sold” by him and shipped by his employer. Shortly after the date of his first contract he was given certain written instructions, providing, among other things, three sets of prices. The “A” price, to be quoted to those dealers who were “A1 pay and can buy at least $2,000 worth of goods during the season;” the “B” price might be quoted to any dealer buying outright at least $500 worth of goods, and the “C” price might be quoted to anyone, being “the price which the majority of our goods should be sold at.”

These instructions further provided that on goods sold at the “A” price “we can not afford to pay but one-half the regular commission to you. ’ ’ On August 31st of the following year, Eiser was given a copy of another document likewise entitled ‘ ‘ Instructions to Salesmen. ’ ’ As therein revised the corresponding provisions were: “The A price, which is about our cost price, is to be allowed on $2,000 orders taken from good parties only; the B price for orders of $500 or over, to well rated parties; and the C price is the road price at which the majority of the goods should be sold; ’ ’ and ‘ ‘ one-half of regular commis-; sion will be allowed on goods sold at A price.”

Eiser testifies that when the instructions to salesmen were first handed to him, he was told that many of the provisions thereof did not apply to him. This is denied, and the denial is supported by a letter of October 31, 1906, written to Eiser by his employer, and containing the following clause: “Your goods are almost all sold at the A price and if you will refer to your letter of instructions, you are only entitled to 5% on goods sold at the A price.”

The answer and cross-petition of the Findlay Brothers Co. alleges a modification of the original contract in accordance with said instructions to salesmen so as to provide for half commissions on sales at the “A” price. The reply denies such modification. There is no direct evidence of Eiser’s express consent thereto, except this paragraph in Eiser’s letter of February 5, 1907, to his employer:

“Enclosed find a small order for Sehmipf. I have been carrying in my pockets for sometime, on account of making error in price of 460 pattern. I expected to see him shortly to explain the error and try to get larger order. You will also note I gave A price on your goods, as that is about price York sells him at. They generally get bulk ó£ bis business. I intended to tear up order if I did not see him as there is nothing in it for yourself or me. It may however help for next season.”

True, Eiser makes frequent apologetic references in his letters to his selling so .many goods at the “A” price but he nowhere else makes any reference which can be construed as bearing upon the size of his commissions on goods sold at that priee. Even the paragraph quoted above from his letter, is by no means a conclusive reference to the percentage of his commission, for it may refer only to the unprofitableness of his 10% commission on so small an order.

. The numerous misunderstandings disclosed in his letters regarding his alleged overdrafts and the balance due for commissions are likewise inconclusive, because, without a detailed statement he could never know how many of the orders sent in by him were filled. In fact, only about 75% of his orders appear to have been filled during the year and a half of his employment. When detáiled statements were finally furnished Eiser by his employer, they did clearly discriminate the one-half commissions on goods sold at the “A” price from full commissions on goods sold at the “B” and “C” prices. But it appears that he never expressly assented to these statements of account as rendered by his employer.

On the whole, we can not reverse the judgment below upon the weight of the evidence; nor, for a like reason, do we think the. court erred in refusing to permit the defendant on the trial to amend its answer and cross-petition by setting up an account or accounts stated. The comments made by plaintiff’s counsel in argument to the jury upon this attempt by the defendants to shift their ground is not objectionable for counsel expressly disclaimed any significance in the court’s refusal to allow such amendment as bearing upon the merits of the case.

The charge of the court is complained of in several parts.

First. At page 96 the court said:

“I suggest that you first ascertain what, if anything’ is due the plaintiff under these contracts, then ascertain .what, if anything, is due the defendant under its counter-claim, and strike a difference, and in whose favor your difference is, so will be your verdict.”

Inasmuch as, the plaintiff had been either underpaid or overpaid, according as his view of the contracts or the view of the defendant should prevail, it is claimed that the charge was misleading in allowing the jury to suppose that there could be a recovery on both petition and cross-petition at the same time. We have not made any nice computations to see what the situation would be if the plaintiff were right as to his view of the first contract and wrong as to the second. Suffice it to say, we are not prepared to reverse the judgment because of the alleged error in this part of the charge.

At page 92, the court, speaking of the defendant’s claim that the -original agreements had been modified, charged the jury that: “the respect in which it is claimed they were modified was with reference to the percentage under the written contract he was entitled to.” The main issue in the case was whether the written contracts were modified, not as to all commissions, but merely as to commissions on goods sold at the “A” price; and the court nowhere clearly stated this to the jury. We think, however, that in the absence of a request, the charge was not erroneous for failing further to particularize the issues.

At page 94, the court charged:

' ‘ The plaintiff was entitled to rely on the rates of commission named in his written contracts with the defendant company until he had consented to a change therein; and was not warranted in assuming that the defendant company did not intend to carry out the terms of its contracts in writing by reason of the defendant company’s statements of sales, under the classification of sales at A price, B price and C price. ’ ’

The court evidently intended to refer to the instructions for salesman on the subject of half commissions on “A” price sales, and we think the jury must so have understood the language employed. But whether the jury understood the court’s reference to be to the instructions to salesman given to Eiser, or to the statements of his accounts that were rendered to him, it was misleading to charge that Eiser was not warranted in assuming that the defendant company did not intend what those doeuments imported. The question for the jury was, did Eiser’s language or conduct import his acceptance of the modified terms of commission on “A” price sales?

On page 97, the court charged, by request of Eiser’s counsel:

“It is claimed here by the defendant that a new contract was entered into between the parties, modifying the old one in a certain particular. The burden upon that subject, gentlemen of the jury, is upon the defendant.”

The first paragraph of the syllabus in the case of the List & Son Co. v. Chase, 80 Ohio St. 42, [88 N. E. 120] is as follows:

“Where a plaintiff sets forth in his petition a contract with the defendant, and avers that he has performed all of the conditions on his part, and the defendant for answer denies the allegations of the petition and alleges a contract differing in material conditions from that alleged by the plaintiff, the burden remains with the plaintiff to prove the contract and his performance as alleged in his petition; and it is error for the court to charge the jury that as to the claim made in the defendant’s answer the burden is on the defendant, and that the contract as alleged in the answer and denied in the reply must be made out by a preponderance of the evidence.”

The rule thus laid down by the Supreme Court is inconsistent with the charge, as given.

For these two errors in the charge, namely, as to the significance of the documents given to Eiser by his employer, and as to the burden of proof of modification of the contract, the judgment below is reversed and the cause remanded.

Dustin and Jones, JJ., concur.


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    OFFICES AND OFFICERS
    [Cuyahoga (8th) Circuit Court,
    May 8, 1911.]
    Henry, Dustin and Jones, JJ.
    Judge Dustin of Second Circuit, and Judge Jones of Fourth Circuit, sitting in place of Judges Marvin and Winch.
    State, ex rel Henry Gollwitzer, v. Herman C. Baehr.

      Sanitary Policeman Removable at Pleasure of Health Board.
    A sanitary policeman appointed in 1910, not from any list of eligibles furnished by the civil service commission or as an emergency employee of the mayor, is removable at the pleasure of the board of health.
    Error.

      F. W. Treadway and Mathews & Orgill, for plaintiff in error.

      Newton D. Baker, for defendants in error.
   HENRY, J.

This is an error proceeding to reverse the judgment for defendant rendered upon the sustaining of a demurrer to a petition in mandamus, begun on the relation of Gollwitzer to compel the defendants, as the board of health of the city of Cleveland, to restore him to his position as sanitary policeman, to which he was appointed February 1, 1910, and from which he was discharged April 13, 1911.

He founds his alleged right to reinstatement upon the tenure fixed by the act approved March 27, 1911, entitled “An act to amend Secs. 4411, 4418 and 4484 G. C., and to repeal said original sections, extending the merit system to employes of the board of health in municipal corporations.”

Section 4412, as thus amended, provides among other things that, “the board may suspend but not remove any member of the sanitary police, now serving or hereafter appointed for cause authorizing the dismissal of any person in the classified service, and shall certify such fact together with the cause of such suspension to the civil service commission, ’ ’ etc.

The main question before us is whether Gollwitzer, at the time of his discharge was, within the meaning of this section, “a member of the sanitary police now serving.”

The Paine law (99 O. L., 562), passed April 29, 1908, effective in part on August 1, 1909, and in its entirety after January 1, 1910, provides in Sec. 158 that the unclassified service embraces a large number of municipal officers - and employes including “the head or chief of any division or principal department of any city relating to health; ’ ’ and the classified service shall comprise officers and places not included in the unclassified service.

We think this means that Gollwitzer’s place as sanitary policeman was within the classified service, notwithstanding the provisions of Sec. 4411 G. C., prior to the recent amendment, that the health “board may also appoint, with the consent of council, as many persons for sanitary duty as in its opinion the public health and sanitary condition of the corporation require,” etc., and of See. 4479 that “the unclassified.service shall include the positions of officers whose appointment is subject to confirmation by the council.”

It is not necessary, however, to decide whether Gollwitzer was in the classified or unclassified service, for, in either case, he was irregularly appointed. If he was in the unclassified service because his appointment was “subject to confirmation by the council,” then his appointment was irregular because he was not so confirmed. If, on the other hand, his position was as we are inclined to believe, within the classified service, he was not appointed from any list of eligibles furnished by the civil service commission; nor did he, as an emergency appointee, receive his appointment from the mayor.

We hold, therefore, that See. 4412, as amended March 27, 1911, has no application to him as a “member of the sanitary police now serving,” because the legislature must be presumed to have meant only éuch sanitary police as were then lawfully serving by virtue of appointments legally made in accordance with statute.

In the case of State v. Stoble, 25 O. C. C. 762 (2 N. S. 293) it was held that the incumbents of the office of superintendent of police and chief of the fire department of the city of Hamilton, Ohio, at the time the new municipal code went into effect March, 1903, were officers de facto, within the protection of Sec. 167, notwithstanding that the act creating the offices in and under which they were acting is unconstitutional. But that case is not like this for there all the municipal offices and their incumbents were only de facto such, and the legislature in extending the tenure of the incumbents could have had in mind no one else in the city of Hamilton to whom such legislation could apply. Here, however, it was the duty of the board of health to displace all sanitary policemen irregularly appointed as fast as the civil service commission provided eligible lists from which to appoint their successors. It can not be and is not claimed that Gollwitzer’s successor might not long ago have been lawfully appointed. Before and at the time of his discharge there was no legal restraint whatever upon the board of health from taking that action, but, on the contrary, there was an imperative duty resting upon them so to do.

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

Dustin and Jones, J^T., concur.


text:
    ESTOPPEL — PLEADING—REVIVOR
    [Cuyahoga (8th) Circuit Court,
    May 8, 1911.]
    Henry, Dustin and Jones, JJ.
    Judge Dustin of Second Circuit, and Judge Jones of Fourth Circuit, sitting in place of Judges Marvin and Winch.
    Edward Pokrandt, Admr. v. Ferdinand Konorski et al.
    1. Notice of Revivor of Action Presumed where Record Silent.
    When the record discloses nothing either way about notice to or consent of a defendant to the revivor of an action against him, jurisdiction of his person upon which to base a default judgment against him will be presumed.
    2. Former Adjudication to Work Estoppel, Pleaded.
    In order that a former adjudication may work an estoppel, it must be pleaded.
    Error.

      jRobert E. McKisson, for plaintiff in error.

      H. II. Anderson and T. TruKlar, for defendant in error.
   HENRY, J.

Konorski’s answer and cross-petition directly attacks the validity of the judgment which was obtained by Pokrandt, as administrator, in a previous action in the court of common pleas and upon which the action below was founded. It alleges that in said prior action, after the death of the plaintiff therein and the appointment of Pokrandt as the administrator of his estate, a revivor of the action was held without either the consent of, or notice to, the defendant, as provided by statute, and that subsequently a default judgment was rendered by the court without any jurisdiction of the person of the defendant in the action as revived.

The plaintiff’s reply to this answer and cross-petition is a general denial merely.

Upon the issue thus joined the defendant first produced his evidence, the first item of which was the record of the prior action. This record disclosed nothing either way about notice to or the consent of the defendant to the revivor had therein. It must therefore be presumed that the court had jurisdiction of the person of the defendant at the time the default judgment was rendered. Reynolds v. Stansbury, 20 Ohio St. 344.

The record of the prior action further disclosed that after the default judgment was. rendered the defendant interposed a motion to set it aside upon the same grounds as he asserts by his answer and cross-petition now. That motion was denied and it is contended that the matter then became res ad judicata. It is held, however, in Meiss v. Gill, 44 Ohio St. 253 [6 N. E. 656]:

“When a party claims a former adjudication of matter set up in an action to be an estoppel, such judgment should be pleaded; and where the same is not pleaded when it can be, it is not evidence conclusive of an estoppel and testimony may be given to show the truth.”

As already stated, the reply contains no averment of the prior adjudication. The court below, therefore, properly admitted parol testimony of the absence of notice to or consent by the defendant to the revivor in the prior action, and decided that no jurisdiction of the person of the defendant was acquired. Judgment was rendered against the plaintiff below upon the ground that the default judgment in the prior action was without validity and afforded no foundation for the new action. Having read the bill of exceptions, we think this finding was correct, and perceiving no error in the record before us, we affirm the judgment below.

Dustin and Jones, JJ., concur.


text:
    EMINENT DOMAIN
    [Cuyahoga (8th) Circuit Court,
    May 15, 1911.]
    Marvin, Winch and Henry, JJ.
    David Morison et al v. Cleveland (City) .
    1. Speculative Possibilities not Damages for Street Appropriation.
    Speculative possibilities are not an element of value of property appropriated.
    2. Opening of New Street Incident to Elimination of Grade Crossing.
    The opening of a new street from a railroad depot to a street crossing at a higher level so relates itself as incident to the main object of eliminating a grade crossing, as to warrant the exercise by a municipality of its power of eminent domain in that behalf.
    3. Assumption of Sales at Prices Stated as Testing Competency of Witness Fixing Values not Permissible.
    While it is not improper in an appropriation case upon cross-examination of a witness who has on direct examination given his opinion of the value of land sought to he appropriated to inquire of him concerning the sales of adjacent lands, for the purpose of testing his knowledge and competency, it is not ordinarily permissible to incorporate into such inquiries a statement or assumption that such sales at prices named have in fact occurred.
    4. Divesting City of Fee in Street Dedicated in Plat Requiring no Acceptance.
    The dedication of a street by plát in 1837, required no acceptance, either express or implied, by the public authorities, to vest the fee of the street in the city for the use of the public for street purposes, and such title of the city can be divested only in the manner indicated in Sec. 4977 R. S. (Sec. 11219 G. C. et. seq.), or otherwise, as provided by statute.

      Smith, Taft & Arter, for plaintiff in error.

      W. D. Wilkins and Patterson & Nieding, for defendant in error.
   HENRY, J.

The action below was begun in the insolvency court by the city of Cleveland to appropriate the lands and slope rights needed for the purpose of separating the grades of West Twenty-fifth street and the New York, C. & St. L. Ry. tracks, at their intersection in said city.

Some of the errors complained of merit only the briefest mention. Upon examination of the testimony concerning the value of the property taken, and the damage to the residue, we are convinced that the jury’s award fails to disclose any such inadequacy as to indicate bias or prejudice on their part, or to warrant a reversal of their verdict as against the weight of the evidence. Nor is there any abuse of discretion or reversible error discoverable in the exclusion of the merely cumulative opinion evidence of F. C. Becker and others, as to values, and in the court’s permitting John Beck and Myron B. Yorce to testify as experts on the same and other subjects. So also the court correctly charged that speculative possibilities are not an element of value of property appropriated.

The exclusion of leases offered, and other evidence of rental values and income, accords with the rule laid down in Columbus, H. V. & T. Ry. v. Gardner, 45 Ohio St. 324 [13 N. E. 69], Powers v. Hazelton & L. Ry. 33 Ohio St. 434.

The opening of a new street from the railroad depot near this crossing to West Twenty-fifth street, at its new and higher level so relates itself as incident to the main object of eliminating the grade crossing, as to warrant the exercise by the city of its power of eminent domain in that behalf. Access to the depot is desirable alike to the railway company and the public, and there is no reason why the new means of approach should necessarily be a private, rather than a public way.

The city’s cross-examination of Morrison’s expert witnesses concerning their knowledge of prices, named by the questioner as having been paid for other lots in the vicinity can not be justified in this state, where the rule is, that evidence of prices, in particular sales, is inadmissible in appropriation cases, upon the issue of property taken or damaged. Cleveland Terminal & Y. Ry. v. Gorsuch, 28 O. C. C. 468 (8 N. S. 297), affirmed without report, 76 Ohio St. 609 [81 N. E. 1186], The same rule, though by no means universally approved, obtains in Kansas, where two decisions illustrate, if they do not conclusively define, the proper limits of such cross-examination. Kansas City & T. Ry. v. Vickroy, 46 Kans. 248 [26 Pac. 698], Chicago, K. & N. Ry. v. Stewart, 47 Kans. 704 [28 Pac. 1017].

We hold that, while it is not improper upon cross-examination of a witness, who has, on direct examination, given his opinion of the value of land sought to be appropriated to inquire of him concerning the sales of adjacent lands, for the purpose of testing his knowledge and competency, it is not ordinarily permissible to incorporate into such inquiries a statement or assumption that such sales at prices named have in fact occurred. Besides being peculiarly liable to abuse through false assumptions, that form of cross-examination extremely prejudicial in that it suggests to.the jury a line of information and a means of arriving at their award which the law denies to. them, and to meet which the opposite party is permitted to produce no evidence. This prejudice is largely avoided, or neutralized, where the witness, under cross-examination, knows of the sales and prices asked for, and himself testifies, thereto, so that the amounts paid are revealed, if at all, not by the question, but by the answer. If the witness neither knows nor assumes to give the facts as to such sales his ignorance thereof may, of course, be considered by the jury in weighing his opinion of the value of the property sought to be appropriated. But if the witness knows and testifies to the prices obtained at other sales, and the correctness of his opinion of the value of the property sought to be appropriated is thereupon, and for that reason, directly questioned by the cross-examiner, no doubt the witness may reconcile his opinion with his knowledge as best he may. Thus the jury is prevented from being unfairly misled by covert intimations of sales and prices concerning which no. evidence is admissible, while the amplest latitude of cross-examination is allowed to test the knowledge and competency of expert witnesses as to values testified to in chief by them.

The principles thus expounded were repeatedly and fragrantly violated in the trial of the case below, and for error in this regard, the judgment must be reversed.

It is claimed the trial court erred also in charging the jury that the burden was on Morrison to show his title to that part of Pond street which he occupies, by proof of compliance with or the happening of all the statutory conditions of Sec. 4977 R. S. (Secs. 11219 G. O. et seq.) The contention is that prima facie proof of Morrison’s ownership, either by occupancy or chain of title, is not overcome by evidence of the record of a plat, made by the owner of that and surrounding property, showing the street in question, with no further evidence, either that such dedication of the street was expressly accepted by the city, or that there was a public use from which such acceptance may be implied. We were at first strongly inclined to this view, but an examination of the case of Wisby v. Bonte, 19 Ohio St. 238, leads us to conclude that in 1837, when the plat in this case was made and recorded, the statutory dedication of Pond street, which was thereby effected, required no acceptance either express or implied, by the public authorities to vest the fee in the city, and the use for street purposes in the public. It follows that they can be divested only in the manner indicated by Sec. 4977 R. S. or otherwise as provided by statute. There is here no pretense of a common law dedication. Being statutory, it is irrevocable except as above pointed out.

For error in allowing the city’s counsel, on cross-examination of Morrison’s experts, to put questions containing assumptions of sales of other property at prices named, the judgment is reversed and the cause remanded.

Marvin and Winch, JJ., concur.


text:
    LANDLORD AND TENANT
    [Cuyahoga (8th) Circuit Court,
    May 15, 1911.]
    Marvin, Winch and Henry, JJ.
    William S. Kerruish v. Cleveland & S. Brew. Co.
    Intention of Tenant Holding over Terms of Lease Immaterial.
    When a tenant holds over the term of a lease, either by remaining in possession of the premises personally, or through his tenants or subtenants, his intentions and desires as to the lease are wholly immaterial. By his mere act in remaining in possession of the premises after the term, the tenant gives the landlord the choice of election, to treat him as a tenant for a new term, or as a trespasser, and the landlord has this election wholly independent of any desires, wishes or intentions on the part of the tenant.
    Error.

      Kerruish & Kerruish, for plaintiff in error.

      Higley, Maurer & Dautel, for defendant in error.
   HENRY, J.

The parties to this proceeding in error stand here as they stood below. There the defendant had a verdict and judgment on both causes of action set up in plaintiff’s second amended petition, viz: first, for damages for the failure of the defendant, as lessee of plaintiff’s three-story brick saloon and dwelling, located at and known as Number 15 Central viaduct, in the city of Cleveland, for the term of three years, ending February 28, 1906, to deliver up and. surrender to the plaintiff and his heirs possession of said premises at the expiration of the term aforesaid, in as good condition and repair as the same were in at the commencement of said term, natural wear and decay, and the destruction and damage by the elements or electricity, or by any act of God, or by means of invasion, insurrection, riot, civil commotion, or by any military or usurped power only excepted,” according to said lessee’s covenant in that behalf. Secondly, for $720 annual rental, due from the defendant for the year next succeeding the original term, because of its holding over as such lessee beyond the expiration of said original term, by and through its subtenant’s occupancy of a part of said premises until March 17,1906.

On page 102 of the bill of exceptions, August J. Lowe, a witness for the defendant, and the manager of its claim branch or department, was asked, on re-direct examination, concerning an interview between himself and one Schultz, who occupied a part of the premises at and after the expiration of the original lease:

“Q. Did he at that time say anything about the arrangements with Kerruish about staying there in the property? A. Schultz and his wife. He said he had been to Mr. Kerruish and saw about occupying the premises, and he said he had made arrangements with Mr. Kerruish to stay there and look after the premises for him.
“Objection by counsel for plaintiff.
“Objection overruled to which ruling of the court counsel for plaintiff then and there excepted. ’ ’

If this objection was seasonable, and sufficient to save the point, there was error in this ruling. As will hereinafter more fully appear, there was nothing to take this conversation out of the usual rule which forbids evidence of the language or conduct of one who is not a party to the action being received to bind one who is a party and who was absent at the time of the conversation or action so testified to.

The court refused to charge plaintiff’s fifth and seventh requests to charge before argument, as follows:

“5. Where a tenant is holding over the term of a lease, very slight acts on the part of the landlord such as a short lapse of time, acceptance of rent by him, or a- demand for rent- or the like, are sufficient to constitute his election, and makes the occupant his tenant for a new term. But the tenant has no such election. His mere continuance in possession fixes him as a tenant for another year, if the landlord thinks proper to insist upon it, and the rights of the landlord will not be affected by the fact that the tenant refused to renew the lease, and gave notice that he intended to leave the premises.
“7. Where a tenant holds over the term of a lease, either by remaining in possession of the premises personally or through his tenants or sub-tenants, his intentions and desires as to the lease are wholly immaterial. Actions speak louder than words, and the tenant, by his very act in remaining in posession of the premises after the term, gives the landlord the choice of electing to treat him as a tenant for a new term, or as a trespasser, and the landlord has this election wholly independent of any desires, wishes, or intentions on the part of the tenant. ’ ’

If by the penciled letter “G” in the margin opposite the defendant’s seventh request to charge before argument, we may assume that such request was granted, the court instructed the jury as follows:

“7. If the jury find from the evidence that plaintiff knew at all times after March 1st, 1906, that the defendant intended and desired to surrender the premises on the termination of the written lease, and further knew that the occupancy by the under-tenant Schultz of a part of the lower floor until March 17, 1906, was .without the assent of the defendant, then such occupancy by Schultz did not amount to a holding over by defendant upon which plaintiff could elect to hold defendant as a tenant for another year. ’ ’

At pages 196 and 197 the court, in its general charge, instructed the jury:

‘ ‘ But such holding over by the subtenant must be with the assent of the tenant; if the holding over is with the assent of the tenant, then that holding over is'holding over of the tenant or lessee. If such holding over of the subtenant is not with the assent of the lessee or tenant, then the tenant would not be bound to pay the rent for such time as the sub-tenant occupies the property.”

The learned judge clearly misconceived the law. Possibly plaintiff’s fifth request, taken substantially from the opinion in Baltimore & Ohio Ry. v. West, 57 Ohio St. 161, 166 [49 N. E. 344] contained elements not strictly germane to the facts of this case; but his seventh request should, and the defendant’s seventh request should not, have been given. Neither should the court have instructed the jury as in the above quoted excerpts he did charge. Haynes v. Aldrich, 133 N. Y. 287 [31 N. B. 94; 28 Am. St. 636]; Bacon v. Brown, 9 Conn. 334; Sullivan v. George Ringler & Co., 69 N. Y. Supp. 38 [59 App. Div. 184]; 171 N. Y. 693 [64 N. E. 1126]; Campau v. Michell, 103 Mich., 617 [61 N. W. 890]; Dimoch v. Van Bergen, 94 Mass. (12 Allen) 551; 2 Tiffany, Landlord and Tenant, 1459; 1 Taylor, Landlord and Tenant, 524, p. 133.

To the contrary, Wood, Landlord and Tenant, 27, cites only an English authority. There the rule is not the same as in the United States. Here the non-assent of the lessee to the sub-tenant’s holding over is immaterial, and evidence of the latter’s assurance to the lessee that he is occupying by arrangement with the landlord, is admissible neither for the purpose of showing the holding over was not licensed by the lessee, nor that there was any actual existence of such arrangement.

For the errors thus indicated, the judgment is reversed. We can not accede to the suggestion that the reversal shall relate only to the second cause of action; because the jury’s finding that the lessee’s occupancy terminated February 28, 1906, with the expiration of the lease, was predicated upon an erroneous charge, and it may be that the premises were left by the lessee in the state of disrepair, originating at a later date, but still within the period of the defendant’s hold-over tenancy, if any.

Judgment reversed and cause remanded.

Marvin and Winch, JJ., concur.


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    APPEAL — ATTACHMENT AND GARNISHMENT
    [Cuyahoga (8th) Circuit Court,
    May 15, 1911.]
    Marvin, Winch and Henry, JJ.
    Enoch’s Lumber & Mfg. Co. v. Glenn E. Griswold et al.
    Appeal does not Prevent Justice Paying Out Money Received from Garnishee.
    There being no express provision of statute requiring that money paid by a garnishee into court shall be held by a justice of the peace pending the expiration of the time allowed by law for taking an appeal from his judgment, neither he nor his sureties can be held liable for his making payment of the same to the plaintiff in attachment, though an appeal be afterwards taken and the action, after such appeal, be voluntarily dismissed.
    Error.

      Frank Rigley, for plaintiff in error.

      W. C. Dille, for defendant in error.
   HENRY, J.

The parties to this proceeding in error stand as they stood below. There the defendants prevailed in an action on the official bond of a justice of the peace to recover money of the plaintiff, which was garnisheed in the hands of its debtor, voluntarily paid by the latter to said justice, and by him paid to the plaintiff in attachment after judgment, but before the ten days, allowed by law for appealing from such judgment, had expired.

The legality of such payment within that period is the sole question before us. Other questions concerning the sufficiency of the service of the writ of attachment, as disclosed by the constable’s return, the time when service by publication on the Enoch’s Lumber & Manufacturing Company was or could lawfully be begun, and tbe jurisdiction of tbe justice in view of these matters, are sought to be raised on the finding of facts made by the court below. But the admission of the pleadings are conclusive upon all these points, leaving nothing for us to decide save the question first above stated.

On this we hold that, in the absence of any express provision of statute requiring that money paid by a garnishee into court shall be held by the justice pending the expiration of the time allowed by law for taking an appeal from his judgment, neither he nor his sureties can be held liable for his making such payment to the plaintiff in attachment, though an appeal be after-wards taken, and the action, after such appeal, be voluntarily dismissed. When the payment was made, the judgment was in full force and effect. Nothing that happened afterwards can invalidate the payment so made.

Judgment affirmed.

Marvin and Winch, JJ., concur.


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    DIVORCE AND ALIMONY
    [Cuyahoga (8th) Circuit Court,
    May 23, 1911.]
    Marvin, Winch and Henry, JJ.

      Elizabeth C. Hackenberg v. Harvey E. Hackenberg.
    Divorced Wife cannot Charge Husband for Child’s Expenses.
    When the mother of a minor child is awarded its custody, in a divorce proceeding between her and the child’s father, she is not thereby clothed with authority in the first instance, and until the father neglects or refuses to make suitable provision for the child’s maintenance, to incur expense in that behalf, except only in those matters, towit, board and lodging, which are naturally incident to the custody of the child while residing with its mother.
    Error.

      Cushing, Siddall & Palmer and A. E. Powell, for plaintiff in error.

      Squire, Sanders & Dempsey, for defendant in error.

      Affirmed, no opinion, 88 Ohio St. 567.

   HENRY, J.

In the common pleas court the relation of the parties “was the same as here, the plaintiff claiming in her petition relief upon three causes of action, all of which grew out of a divorce proceeding in Lorain county in 1903, wherein the plaintiff was divorced from the defendant and given the custody of their ¡minor child. By alimony agreement made out of court, there was transferred to the plaintiff the homestead in this city, worth from $7,500 to $8,000; the household goods therein contained, and stocks of various companies in par value as follows: National Carbon Co., $10,000; Dow Chemical Co., $10,000; Iroquois Portland Cement Co., $5,000.

Since the settlement, the last named company has become insolvent, and the Dow Chemical Co. stock has depreciated in the market.

Plaintiff’s causes of action were, first, for the support and maintenance of the parties’ son until his majority; second, for breach of guaranty that said' stocks would pay dividends at a rate not less than 6 per cent.; third, for deceit in representing the Iroquois Portland Cement Co. stock to be worth par, when in fact it was at the time of transfer worthless. The trial court directed a verdict against the plaintiff as to the first and third causes of action but submitted the second cause of action to the jury, which found against the plaintiff.

By the first cause of action, the plaintiff sought to recover the reasonable value of the support and cost of maintenance as afforded by her to her son, so far as such provision was necessary and proper for the youth’s uprearing in his walk of life. The defendant introduced more than a score of letters written during the latter’s minority, in which he declares his willingness to provide for the lad, and demands that he be consulted with and applied to respecting the boy’s needs. Although these contained some irrelevant matter they were properly admitted in evidence upon the theory that if the father was willing and able to supply his son’s needs, the plaintiff had no right to anticipate his action, notwithstanding that the custody of the lad had been awarded to her' by the decree of divorce, without express provision for his support. The rule of Pretzinger v. Pretzinger, 45 Ohio St. 452 [15 N. E. 471; 4 Am. St. 542] stands, of course, unchallenged to the effect that:

1 ‘ The obligation of the father to provide reasonably for the support of his minor child, until the latter is in a condition to provide for his own support, is not impaired by a decree which divorces the wife ‘a vinculo’ on account of the husband’s misconduct, gives to her the custody, care and nurture of the child, and allows her a sum of money as alimony, but with no provision for the child’s support. The mother may recover a reasonable compensation from the father for necessaries furnished by her to the child after such decree, and may maintain an original action for such compensation against the father, in a court other than that in which the divorce was granted.”

. The father accordingly made a regular allowance, such as he-deemed sufficient to meet the cost of his son’s board and lodging, this part of his maintenance being necessarily furnished by the mother as. an inseparable incident to her right of custody óf the boy, so long as he remained at her home. For his clothing, tuition, pocket money, etc., except in so far as these might be supplied out of said allowance, the father insisted that he should be consulted about, and should authorize in advance, instead of having his credit pledged therefor at the mother’s sole discretion.

The letters to his son, above referred to, were admittedly received by the latter and read by both him and his mother, who, however, refused to accede to the father’s views. The expenses sought to be recovered under the first cause of action below were, therefore, incurred and paid by the mother, and not by -the father.

We fail to find any authority precisely in point upon the question, but upon mature deliberation we hold, that the theory entertained by the court below is correct, and that the mother, notwithstanding that she was decreed the personal custody of the child, was not thereby clothed with any authority' in the first instance, and until the father neglected or refused to make suitable provisions for his son’s maintenance, to incur expense in that behalf, except only with regard to those matters, to-wit, board and lodging, which were naturally incident to the custody of the youth while residing with his mother. In other words, she was in no better position, by virtue of her right of custody, to pledge the father’s credit for his son’s maintenance, except in the particulars mentioned, than a stranger would be in. Any one may provide necessaries for a child and charge the same to the father, but not before the latter has refused or neglected so to do. Nor has the mother any wider authority, where the family relations have been disrupted by a decree of divorce obtained by her for the husband’s aggression, and awarding to her the custody of their child, save only that she may recover from the father in any case the reasonable cost of the child’s board and lodging.

An attempt was made by the plaintiff below to produce evidence, consisting of her own testimony and that of an expert witness, to show that the reasonable cost of the support furnished by her to her son in this case amounted to a sum exceeding the allowance paid her for that purpose. She was asked:

“Mrs. Hackenberg, you may tell the jury what, in your opinion, was the reasonable value of the support of, care, clothing, educating, and similar things, afforded your son by you during the period from March 27, 1903, to July 7, 1907 ?”

Objection to this question was sustained and exception noted, and an offer made to show “that the witness would say that such things were of the value of $125 per month. ’ ’

It is manifest that this question embraces items which, on the view above expressed, could not afford a basis of recovery without proof of the father’s refusal or neglect to provide them, and it is further objectionable because the expression “similar things ’ ’ calls for the conclusion of the witness as to what things .were similar. There.was therefore no error in this ruling.

For reasons already explained, the testimony of the plaintiff as to the clothes bought for the son was properly excluded. Her testimony as to the disposition of all her income offered for the purpose of showing by the elimination of the expenditures made for herself, that the residue was the cost of maintaining her son, is of course incompetent as a method of proving that fact.

Mrs. Mary McNeil, experienced in keeping a high class boarding house for many years, testified as to the cost of board such as that furnished young Hackenberg. This testimony was afterward properly excluded, because it appeared that her experience was limited to the keeping of boarders in a household of which she was herself a member, and in connection with which she obtained her own support, and she was admittedly unable to separate her costs from her profits.

There was no competent evidence left before the jury to show that the reasonable expense incurred by the mother for boarding and lodging her son exceeded the allowance made to her by the father for that purpose. And since there was also no proof whatever of any refusal or neglect of the father to provide suitably for his son’s maintenance in this or in any other respect, the court was justified in directing a verdict for the defendant on the first cause of action, as was done.

The alleged guaranty, whereon the second cause of action was founded, was put in issue by the defendant’s answer, as was also the alleged breach thereof. The testimony in support of the making of such guaranty consisted chiefly of the testimony of the attorney for the wife in the divorce proceeding, by whom the agreement concerning alimony was negotiated for her. He testified at page 112:

“There was a great deal of talk along that line, and it was finally said by myself that so far as I was concerned in the negotiations, I would recommend to Mrs. Hackenberg a settlement of $25,000 in cash, the homestead on Grace avenue, that Mrs. Hackenberg should secure the divorce on account of the aggressions of her husband, that she should have posession of Albertus, and that an arrangement should be entered into to that effect, and that Mr. Hackenberg should pay for his tuition, his clothing and his maintenance with the mother.”

On page 135 he testifies that Mr. Hackenberg said that he wanted Mrs. Hackenberg to take $10,000 in National Carbon Co. stock, which he said was paying 7%, and Dow Chemical Co. stock, $10,000 which he said was a gilt-edged secured stock, and was paying, I think, I am not just sure about that, but I think, one-half of one per cent, a month, or 6 per cent, a year; that it was a first class security, a first class stock; that the Iroquois Portland Cement Co. stock at that time was not paying dividends; that he would give $5,000 of that, but that they were making'large quantities of cement successfully at that time, and were obtaining a good market for it, and selling it at a profit, and that it would be paying dividends in June or July of that year.

He further testifies:

“Then Mr. Hackenberg said ‘these stocks will always pay at least 6% dividends. I am as much interested in Mrs. Hackenbekg now as I ever was. I feel as kindly disposed toward her as I ever did. I want my family protected, and these stocks aré better for her than .cash. Besides, if she takes the stocks, I never want her to be induced by anybody to part with them for less than par. If anything should occur to reduce the value of these stocks, I will immediately notify her, and she can come in and I will take the stocks at par, but under no circumstances do I want her to sell or dispose of these stocks.”

He subsequently testified that this proposition was accepted.

This version of the agreement certainly does not require proof, if indeed it can be said at all to warrant, an inference, of the correctness of the claim of guaranty on which the plaintiff sued. Moreover, as bearing upon the likelihood that such a guaranty was made, it appears that the negotiations were conducted along the lines of working out a substantially equal division between the parties of Mr. Hackenberg’s net assets; and that this was accordingly done, he retaining a larger amount of each of the stocks which have since depreciated than he transferred to Mrs. Hackenberg, so that after the depreciation his share in the division became not only less than hers, but less than one-half of the valuation of her portion after deducting losses.

’ We see no reason, to disturb the jury’s finding implied in their verdict for defendant, that no such guaranty as the plaintiff claims was in fact made.

It follows that the errors alleged to have been made in ruling upon evidence of values of the stock in question are immaterial. Two errors in the charge are complained of. The first is in refusing to direct the jury to return a verdict for the plaintiff as to the Iroquois stock if they found that a guaranty had been made.

. There was evidence from which the jury might have inferred if they had had occasion to pass upon the question, that the Iroquois stock was valueless; but plaintiff’s evidence upon that subject was not conclusive, and it would have been error to require the jury to return a verdict for the plaintiff for the full par value thereof.

The colloquy of counsel and court was followed by this instruction :

“Now gentlemen, you see that the lawyers differ in that regard as to what the testimony was. It is for you to settle- that matter from your recollection of the testimony. If your recollection of the testimony is that in June, 1908, if the evidence here shows that at that time the cement company stock had no value, then if the plaintiff recovers, the measure of recovery would be the par value of that stock with interest. If the evidence does not show that, if the evidence shows that that .-stock had some value at that time, then the amount of recovery, if the plaintiff recovers, would be the difference between that value and the par value. I will have to. leave that for you gentlemen to determine from your recollection of the evidence, providing you find that there was a warranty and breach of warranty as to that stock. ’ ’

We find no error here.

The court charged:

“A warranty, if you find one to have been made, must have been made by what was said and done on the 20th of March; all agree to that. ’ ’

The plaintiff did not agree to that, but very heartily differed therefrom. It is, however, of no consequence whether the plaintiff did or did not agree, for the evidence showed that this agreement was made and was consummated on the 20th of March, when the negotiations reached their conclusion. We find no error in the charge in this respect.

The third cause of action for deceit was not seriously pressed, and it is not now claimed that the court erred in the directing of a verdict for the defendant in that behalf.

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

Marvin and Winch, JJ., concur.


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    MALICIOUS PROSECUTION
    [Cuyahoga (8th) Circuit Court,
    June 2, 1911.]
    Marvin, Winch and Henry, JJ.
    Moses R. Brailey et al v. George A. Williams.
    Motive in Bringing Criminal Prosecution not Element of Malicious Prosecution.
    In an action for malicious prosecution it is error to charge the jury: “If the defendant instituted the criminal prosecution in question with any other motive than to cause the punishment of the plaintiff for a breach of. the criminal law, it would constitute malicious prosecution.”
    Error.

      Patterson <& Nieding, for plaintiff in error.

      Weed, Miller & Bothenberg, for defendant in error.
   HENRY, J.

In the action below, for malicious prosecution, the plaintiff prevailed. The trial court granted plaintiff’s first request to charge:

“If the defendant instituted the criminal prosecution in question with any other motive than to cause the punishment of the plaintiff for a breach of the criminal law, it would constitute malicious prosecution.”

This was error; an ulterior motive, though it was malicious, was not the only requisite element of malicious prosecution.

The court refused to permit the plaintiff to be asked on cross-examination whether he had not been able to borrow money within a month or two after the criminal prosecution; and, whether he had not in another action admitted that his discharge from employment was due to some other cause than said prosecution. A majority of the court are of opinion that these inquiries were.germane to his complaint of injury to his business credit and standing, and should have been allowed. For these errors the judgment is reversed.

Marvin and Winch, JJ., concur.


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    ASSIGNMENTS — BILL OF LADING
    [Cuyahoga (8th) Circuit Court,
    June 2, 1911.]
    Marvin, Winch and Neiman, JJ.
    National Commission Co. v. Citizens Savings Bank.
    Title Acquired by Transferee of Nonnegotiable Bill of Lading, Qualified.
    Under the first paragraph of Sec. 8414 G. C. the transferee of a non-negotiable bill of lading acquires such title to the goods shipped as the transferor can pass, except that the parties to the transfer may agree that only a qualified title shall pass.
    Error.

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

      Carpenter, Young <& Stocker and W. H. Newell, for defendant in error.
   HENRY, J.

The parties to this proceeding in error stand here in the relation opposite to that in which they stood below. There the bank recovered judgment upon two bills of lading of cattle consigned by one Tracy, of Upper Sandusky, to his factor in Cleveland, the National Commission Co., for sale by the latter in accordance with previous arrangement by letter. Other persons are named on the face of the bills; but that circumstance is immaterial, for Tracy and the commission company were deemed to be, and were in fact, the real consignor and consignee respectively. The bills of lading were of the so-called “straight” or non-negotiable sort, capable indeed of being transferred, but not of being negotiated. Tracy had made other similar shipments to the commission company, and had largely overdrawn his account with it; but the factor’s lien, which the latter claimed on Tracy’s last consignment of cattle, more than made good his overdraft, together with all commissions and expenses, out of the proceeds of their sale. Meanwhile, however, he had drawn on his factor for the entire proceeds of this consignment, and had discounted his draft, with the bills of lading attached, to the Citizens Savings Bank of Upper Sandusky. The bank notified neither the carrier nor the factor of this transfer, but sent the draft with bill of lading attached to its Cleveland correspondent for- collection. On the day the draft was presented, but before notice thereof, the commission company had sold the cattle and received the purchase money. ■ Applying the proceeds as above indicated, it refused to accept or pay the draft.

Section 8414 G. C. provides, inter alia, that:

“A person to whom a document of title has been transferred, but not negotiated, acquires thereby, as against the transferor, the title-to the goods, subjeet-to the-terms of any agreement with the transferor. ” -

The plaintiff in'error contends that this section changes the rule of Emery’s Sons v. Irving Nat. Bank, 25 Ohio St. 360 [18 Am. Rep. 299]. It is claimed,' first, that since the tra-nsW to the bank is by statute made “subject to the terms of any agreement with the transferor,” it became subject to the terms of the commission company’s agreement with the transferor, Tracy, by which said company obtained lawful possession of the cattle, together with its factor’s lien on the proceeds of their sale, to secure the general balance of account due it from Tracy; and that this is so, even though such agreement was subsequent to the transfer of the bills of lading. It is claimed, secondly, that Tracy’s said agreement with-the commission company was in fact prior to his transfer of the bills of lading to the bank, because the shipment was made pursuant to such agreement when the bills of lading were issued by the carrier.

The correspondence and course of dealing between Tracy and the commission company do not, however, warrant the inference of a prior agreement between them in these terms. Tracy had not' contracted to surrender his control of the consignment of cattle without exacting prepayment. He had made no agreement by which he was bound to subject this shipment of cattle to his factor’s lien for previous balance of account. So far as his agreement with the commission company went, he was at perfect liberty to do just what he attempted to do, namely, to create a prior lien on the cattle by discounting the draft with bill of lading attached.

Nor do we think that such transfer is rendered subject, by the clause of the statute here relied on, to any agreement which the transferor might thereafter make with third parties. True, a subsequent purchaser, for value and without notice, having seasonably notified the carrier thereof, or having obtained' lawful delivery of the cattle from the carrier, would no doubt, under the subsequent provisions of the same section and the other terms of the sale code, acquire an indefeasible title. But that is not this case. The amount here in controversy .is the pre-existing debt due the commission company from Tracy. It paid no new consideration for the cattle. •

• We hold that the first paragraph of Sec. 8414 G-. C. above quoted, means that the transferee of a non-negotiable bill of lading acquires such title as the transferor can then pass, except that the parties to the transfer may agree that only a qualified title shall so pass. The transferee also gains other rights defined in the remainder of the section; but as no such rights were exercised in this ease, a discussion thereof is unnecessary.

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

Marvin and Winch, JJ., concur.


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    APPEAL
    [Cuyahoga (8th) Circuit Court,
    June 2, 1911.]
    Marvin, Winch and Henry, JJ.
    Samuel Lippert et al v. Lucy B. Wirt, Admx.
    Penalty for Failure to Give Additional Appeal Bond is Dismissal.
    The proper penalty for failure to comply with an order to give an additional appeal bond is dismissal of the appeal, but an order striking off defendant’s answer and giving judgment for plaintiff by default produces the same result and no prejudicial error arises therefrom.
    Error.

      George 0. Willett, for, plaintiffs in error.

      B. Pearce, for defendant in error.
   HENRY, J.

When the plaintiff in error disobeyed the order of the court of common pleas to give an additional undertaking for his appeal of the cause from a justice of the peace, the proper remedy was dismissal of the appeal. Instead, the court of common pleas granted his adversary’s motion to strike off his answer and render judgment as upon default. The result of either procedure being the same, both as to the parties to the action and the sureties on the appeal bond, no prejudice can ensue from allowing the judgment as rendered to stand.

Affirmed.

Marvin and Winch, JJ., concur.


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    DISMISSAL AND NON-SUIT
    [Cuyahoga (8th) Circuit Court,
    June 2, 1911.]
    Marvin, Winch and Henry, JJ.
    Wheeling & L. E. Ry. v. Emily Davider.
    Sustaining Objection to Any Evidence not Bar to Another Action against Same Party.
    An order dismissing a defendant from an action, upon the sustaining of an objection to the introduction of any evidence against it under the allegations of the petition, is not a bar to another action against said defendant.
    Error.

      Squire, Sanders <& Dempsey, for plaintiff in error.

      A. W. Lamson and W. B. Beebe, for defendant in error.
   HENRY, J.

We see no reason why the Wheeling & L. E. Ry., although once dismissed out of the ease below, upon its objection to the introduction, as against it, of any evidence in support of plaintiff’s petition, because said petition failed to state facts sufficient to constitute a cause of action against it, should not after-wards again be made a party defendant, by leave of court, to answer to an amended petition filed against both it and its co-defendant, before the running of the statute of limitations. The former judgment of dismissal was no bar to a new action Moore v. Dunn, 41 Ohio St. 62. It is not material, therefore, whether the allowance of the motion to correct the entry of dismissal was irregular. The reinstatement of the dismissed defendant was the result properly reached.

Passing over the assigned reasons, the court’s last order was, “That the dismissal of said cause as against the Wheeling & L. E. Ry. be vacated and leave given to file her amended petition,” etc. The affirmance of this order dispenses with the necessity for relief under the cross-petition in error; which is therefore dismissed.

Judgment affirmed.

Marvin and Winch, JJ., concur.


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    FORCIBLE ENTRY AND DETAINER
    [Cuyahoga (8th) Circuit Court,
    June 2, 1911.]
    Marvin, Winch and Henry, JJ.
    Superior Savings & Tr. Co. v. Harry F. Payer et al.
    Assignment of Lessor’s Interest in Lease does not Confer Right to Forcible Detainer.
    The lessor’s transfer of his interest in a lease works an assignment of the rents, but conveys no right, possessory or otherwise, to the demised premises, and therefore confers no authority to prosecute forcible detainer.
    Error.

      Hoyt, Dustin, Kelley, McKeehan & Andrews, for plaintiff in error.

      B. H. McKisson, for defendant in error.
   HENRY, J.

The action below was in forcible detainer. The plaintiff, as assignee of the lessors, claims the right to prosecute such action by virtue of the following endorsement on the lease of the premises in question:

“For one dollar and other valuable and good consideration, we hereby sell, assign and set over unto the Superior Savings & Trust Company, all our rights, title and interest in and to the within lease.
‘ ‘ Martin Mullen.
(Signed) “E. H. Helm.
“W. D. McTighe.
“Cleveland, 0., Oct. 9, 1909.”

This, it will be observed, does not amount to a conveyance of the reversion; and we hold that it does not, on the lessee’s default, confer on the plaintiff any “right of possession,” nor any right to “have restitution of said premises,” as provided by Secs. 10447 to 10461 G-. C. governing this kind of action. We find no authority to the contrary, except in states like New York, New Jersey, Illinois, where such transactions are authorized and regulated by statute. Here, in the absence of any such statute, the lessor’s transfer of his interest in the lease doubtless works an assignment of the rents, but conveys no right, possessory or otherwise, to the demised premises, and therefore confers no authority to prosecute forcible detainer. Chamberlain v. Brown, 2 Doug. (Mich.), 120n; 1 Tiffany, Landlord and Tenant, 868.

The judgment is therefore affirmed.

Marvin and Winch, JJ., concur.


text:
    RAILROADS
    [Cuyahoga (8th) Circuit Court,
    November 13, 1911.]
    Marvin, Winch and Henry, JJ.
    Erie Railroad Company v. Antonio Marullo.
    Negligence In Failing to Provide Runway with Cleats to Prevent Slipping.
    Failure of a railroad company to furnish cleats to prevent an iron plate or runway between two car doors from slipping, whereby a trucker in its employ was injured, is actionable negligence.
    Error.

      Cushing, Siddall & Palmer, for plaintiff in error.

      Ilarry P. Payer, for defendant in error.
   HENRY, J.

The defendant in error, plaintiff below, recovered a. verdict and judgment of $4,000 against his employer, the Brie Ry., for injuries received April 27, 1908, at its Akron freight house, where he was employed as a trucker. Two rows of box cars stood on tracks opposite the platform; and the spaces between the platform and cars, and between cars standing opposite each other on adjacent tracks, were spanned by iron plates, over which the truckers wheeled their truck-loads of freight in loading or unloading the cars. If the floors of cars to be thus com nected were of uneven heights, so that the iron plate was apt to slip when struck by the truck wheels, a small cleat or other means of holding it in place was nailed or fastened to the car floor in front of it.

Cleats for this purpose were kept in the freight house, and on the morning in question, one Lamanta, a fellow-servant of Marullo, went to the cupboard in the office for the purpose of securing a hammer, nails, and blocks for this use, but there the foreman of the truckers, one Frank Tucker, ordered him away to other work, with the statement that he would get someone else to secure the runway plates. Nothing however was done in this regard, so that in the course of the forenoon, while Marullo was pulling a truck load of books over one of the plates, the plate slipped and caused the truck to fall and become wedged between the ears in such wise as to catch Marullo and seriously injure bim. Marullo had been in and out of various cars that morning in the discharge of his duties, and it seems probable, from the evidence, that he had once crossed this iron plate in safety prior to the accident. He says, however, that he did not observe, and because of the dim light could not readily have seen, that the plate was not blocked or cleated as usual.- ■ :

This state of facts, of course, makes a plain case of common law liability. Even if the fault were solely that of one who would, at common law, have been a fellow-servant, or if notice to the company, or want of notice to the . employe had not been proved, it would seem that the recovery might be upheld under Sees. 9017 and 9018 G. C.

Complaint is made of the court’s refusal to grant defendant’s fourth request that “if the truckers were to-place and block the runways, if they needed blocking, and Marullo, the plaintiff, knew that it was their duty so to do, then he can not recover.”

Likewise, complaint is made of the refusal to give defendant’s somewhat similar seventh request. The bill shows that the seventh request was given and not refused; and besides, at page 298 of the bill, the court said:

“You are instructed that it is the duty of the master, in this case the railroad company, to exercise ordinary care in providing a safe runway for the plaintiff, and the plaintiff had a right to rely upon that duty being performed. But if it be shown by the evidence that the company made it a part of the duty of this plaintiff' to lay and secure this runway, and if the jury find that the runway was not secured, in that case then this plaintiff can not recover. ’ ’

This was certainly all that the defendant was entitled to in this behalf.

It is complained further that although the plates themselves were expressly conceded by the plaintiff not to have been defective, still the court charged the jury in such wise as to leave the question of their defectiveness to them. On page 291, of the bill, however, the court said:

“The evidence introduced in the case, and before this jury, warrants and justifies the consideration and investigation by the jury of only one of the acts of negligence charged in the petition, and that allegation is the one in which plaintiff charges that the defendant was negligent in omitting to fasten or nail down the metal runway,” etc.

We have carefully examined the entire charge, and find it in many respects more favorable to the defendant than it was entitled to ask, and in no respect less favorable to the defendant than the law requires or permits.

We have carefully examined the exceptions to the introduction and rejection of evidence on each of the pages noted in the memorandum of defendant’s counsel, without discovering any error in the rulings complained of prejudicial to the plaintiff in error. The exceptions are so numerous that it would be unprofitable to attempt to rehearse them in detail.

Suffice it to say, that having examined every assignment of error, we find nothing to justify a reversal, and the judgment is therefore affirmed.

Marvin and Winch, JJ., concur.


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    MUNICIPAL CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    November 13, 1911.]
    Marvin, Winch and Henry, JJ.
    Elizabeth S. Campbell v. Chas. F. M. Mitchell et al.
    On Vacation of Street Abutter’s Rights Limited to One-Half Width.
    When the easterly 25 feet of a 40 foot street is vacated, 20 feet only of the vacated portion accrues to the owner abutting upon the easterly side of the street and such owner has no further rights in the westerly, unvacated, 15 feet of the street.
    Error.

      D. B. Mooh, for plaintiff in error.

      C. G. Reynolds, for defendant in error.
   HENRY, J.

Opening into the north side of Superior avenue in the' city of Cleveland, and lying parallel to and between East 80th street and East 81st street, there formerly existed a dead end street, forty feet wide, called Grafton avenue, which was dedicated and accepted as such when L. Breckenridge allotted this territory in 1872. The plaintiff owns a lot extending from Grafton avenue west to East 80th street, and the defendants own lots further north which extended from Grafton avenue east to East 81st street.

In 1900, the city council vacated the easterly twenty-five feet of Grafton avenue, and the lot owners on that side fenced into their own lots the land so vacated opposite thereto; but erected no buildings west of the original meridian line of the street.

In 1905 the council vacated the remainder of Grafton avenue, and plaintiff thereupon fenced into her lot the land so vacated opposite the same. This fence the defendants have tom down, and they threaten and claim the right to continue tearing it down as an obstruction to their right-of-way over what was Grafton avenue to Superior avenue. They claim this right as abutters on that part of Grafton avenue which remained a public street after more than half of it had been vacated ón their side. But inasmuch as the accretion to their abutting lots from the first vacation could embrace no more than half the width of the original street, and since their lots, including such accretion, no longer abutted on Grafton avenue, it follows that after said first vacation, they ceased to have any abutters’ rights in the westerly fifteen feet thereof, and hence they have no right to interfere with plaintiff’s fence. Whatever way of necessity or right remained to the easterly lot owners might have been amply and equitably satisfied out of the middle ten feet of the original street, and for aught we know, may yet be. The defendants are, and the plaintiff is not, inclosing or claiming the right to inclose said middle ten feet.

The defendants’ further claim of right to prevent plaintiff from inclosing the westerly fifteen feet, finds no support in either the law or the equity of the matter. An injunction will be allowed plaintiff as prayed for.

Marvin and Winch, JJ., concur.


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    APPEALS
    [Cuyahoga (8th) Circuit Court,
    November 21, 1911.]
    Marvin, Winch and Henry, JJ.
    Henry Harlow, Gdn. v. John Hoehn et al. Henry Harlow, Admr. v. Susie E. Clampitt et al.
    Action for Accounting and Recovery of Money Fraudulently Withheld on Mortgage Investment not Appealable.
    An action for an accounting and recovery of money alleged to have been fraudulently withheld on certain mortgage loan investments, made by plaintiff through defendant, and collected by the latter, is an action for money only and not appealable.
    Appeal.

      B. Pearce, for plaintiffs.

      McGraw <& Messiah and N. 8. Good, for defendants.
   HENRY, J.

The issues whereon these cases were tried below were raised by the fourth amended petition and the subsequent pleadings addressed thereto. All the original defendants except Southern, had been eliminated on its becoming apparent that they werb innocent purchasers of the lands sought to be recovered from them. Furthermore, the death of the original plaintiff’s ward, Mrs.' Abbie Harlow, pending the action below, was followed by a revivor of the action in the name of Henry Harlow as administrator of her estate. In its final aspect, the cause reduced itself, therefore, merely to a controversy between said administrator, as plaintiff, and said Southern, as defendant. In each case the plaintiff seeks an accounting and recovery of the moneys alleged to have been fraudulently withheld from his decedent by said Southern on certain mortgage loan investments made by her. She bought mortgages from Southern. He claims to have later re-purchased them from her, and having foreclosed the same for his own account, he bought in the mortgaged property on the foreclosure sales, and subsequently sold the same to the other defendants who are now out of the case, as aforesaid. Plaintiff claims that his decedent, being of - weak mind by reason of advanced age, and confiding in Southern as her advisor in matters of investment, and as her agent to make collections for her, was deceived and defrauded by him, in that, without her knowledge, he retained and foreclosed said mortgages in his own name, and converted the proceeds to his own use, paying her nothing except fictitious interest collections after the mortgages were in default.

The question now presented to us is whether these actions are appealable. Their final, and not their original, aspect must control the question whether or not they were triable to a jury and hence nonappealable. In Raymond v. Toledo, St. L. & K. C. Ry., 57 Ohio St. 271 [48 N. E. 1093], it was held:

“Under our system of pleading, a plaintiff may be permitted to substitute an amended petition in place of the original which may have the effect to change the form of action from an equitable to a legal action, the basis and the- ultimate object of the action remaining the same. And if such change is made, the court, in determining the issues to be tried, will look wholly to the amended pleadings, disregarding the original and the cause will thereafter be treated as a suit at law, and will proceed to trial and judgment as though it had been commenced as a legal action.”

Some countenance is given to the appealability of cases like those before us, in Black v. Boyd, 50 Ohio St. 46 [33 N. E. 207], where it was held:

“The equity jurisdiction of a court of common pleas, in matters of mutual and complicated accounts, is not abrogated by Sec. 5130 R. S. [Sec. 11379 G. C.], which provides that either party may demand a jury trial of ‘issues of fact arising in actions for recovery of money only. ’ An action is not one for the recovery of money only within the purview of the statute, where, to administer full and complete relief therein, it is necessary to invoke the equity powers of the court to adjust the accounts between the parties and in such case either party may, by virtue of See. 5226 of R. S., appeal to the circuit court from the judgment of the court of common pleas.”

But this decision was overruled in Wilson Improvement Co. v. Malone, 78 Ohio St. 232 [85 N. E. 51], where it was held:

“In view of the comprehensive terms of See. 5130 R. S., issues of fact in all actions ‘for the recovery of money only, are triable to a jury and no exception is admitted because of the number of the items in an account which is the basis of the action, unless there is such relation of parties as will authorize a court of equity to decree an accounting by one for the information of the court and his adversary.
“Within the meaning of the section an action for money is an action for money only, unless there is sought some form of relief peculiar to courts of equity, and the action can not be appealed from the eommon pleas to the circuit court. (Black v. Boyd, 50 Ohio St., 46, overruled.) ”

It might perhaps be argued that the appealability of the cases before us is sustained by Bricker v. Elliott, 55 Ohio St. 577 [45 N. E. 1045], where it was held:

“A suit to compel a trustee to account to the beneficiaries of his trust and for a judgment for the amount which, upon such accounting, may be found in his hands, is not an action for the recovery of money only, and from the judgment of the court of common pleas in such action either party may appeal to the circuit court.”

In that case Shauck, J., said at pp. 579 and 580:

“The adjudications of this court determine that, if the aetion Is for that purpose only, it is triable by jury, even though the principles upon which a recovery is sought are equitable in their nature and origin. They also determine that cases are so triable if the remedy of accounting in equity is not necessary to full and adequate relief even though disclosures from the defendant may be desired.
“In the original petition the plaintiff did not allege an indebtedness for a definite amount due from the defendant. He alleged facts which excused him from doing so, by showing that, although the parties were adversary in the suit, they had not been so in the transactions out of which it arose.
‘ ‘ The case alleged showed that the defendant was a trustee; that in consequence of the trust and confidence reposed in him by his mother, he was in possession of funds belonging to her, whose amount he knew, and she did not. The case was. not for money only. It invoked the exercise of equitable jurisdiction to compel the trustee to render an account necessary to the ascertainment of the amount due, and for a judgment for that amount when ascertained. ’ ’

It will be observed, however, that in the case before us, no trust or other relationship between Southern and Mrs. Harlow is set up, that would justify or require final relief of an equitable nature. The ultimate relief sought, notwithstanding that no specific amount is prayed for, and that a discovery is asked to ascertain the amount recoverable, is money only. No lien is sought to be declared; no fund is to be traced; no equitable accounting, as between fiduciaries, is appropriate. All that is sought is to ascertain the amount due and recover judgment therefor. We think that the cases here are governed by Gunsaullus v. Pettit, 46 Ohio St. 27 [17 N. E. 231] where it was held:

“The right to trial by jury does not depend upon the principles upon which relief is asked, but upon the nature and character of the relief sought. If the relief sought is a judgment for money only, the fact that before the adoption of our reformed system of procedure, the proper remedy would have been by a suit in equity, does not affect the right of either party to a trial by jury upon any issue of fact made by the pleadings.”

Also in point is Lange v. Lange, 69 Ohio St. 346 [69 N. E. 611], where it was held:

“In an action for money, not requiring a decree granting some mode of equitable relief, an appeal can not, under See. 5226 R. S., be taken from the court of common pleas to the circuit court, although the determination of the rights of the parties may involve the application of principles which are of equitable origin and nature. ” . .

In that ease Shauck, J., said at p. 349:

“However uniformly it may appear that appealable actions are equitable, the legislature has not used appropriate terms to make all equitable actions appealable. While the constitutional requirement that the right of trial by jury shall remain inviolate has been effective to continue that right in all cases which were triable to a jury at the time of the adoption of the constitution, it has not prevented, nor was it intended to prevent, the extension of the right of trial by jury to cases which were not so triable at the time of the adoption of the constitution; and every case included in such extension of the right of trial by jury is thereby excluded from the category of cases appealable, however clearly it may appear that the rights of the parties depend upon the application of principles which are of equitable origin and nature. ’ ’

We hold, therefore, that the cases before us, in their final aspect, are “actions for money only”; that they were therefore “triable to a jury” below; and hence that no appeal lies. The appeals will be dismissed.

Winch and Marvin, JJ., concur.


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    ATTACHMENT AND GARNISHEE
    [Cuyahoga (8th) Circuit Court,
    November 21, 1911.]
    Marvin, Winch and Henry, JJ.
    National Radiator Co. v. E. J. Hobday et al.
    Garnishee Process Good against Assignee of Insolvent Estate after Distribution Order Made.
    An assignee or trustee in insolvency may be garnisheed by a creditor of a distributee of the insolvent estate, after order of distribution is made.
    Error.

      Thompson do Hine, for plaintiff in error.

      Hobday & Quigley, for defendant in error.
   HENRY, J.

The sole question in this ease is whether or not an assignee or trustee in insolvency may be garnisheed by the creditor of a distributee of the insolvent estate after order of distribution made.

. In Orlopp v. Schueller, 72 Ohio St. 41 [73 N. E. 1012; 106 Am. St. 583], it was held that property or money held by the executor or administrator of an estate in his representative capacity, can not be reached by attachment or garnishee process in an action against the heir or legatee before an order of distribution has been made, and that the provisions of Sec. 5531 R. S. now Sec. 11829 G. C.. neither apply to nor authorize the service of garnishment on an executor or administrator. It was there held that executors and administrators are not public officers within the meaning of the phrase ‘‘other officers,” as contained in the statute as follows:

“The service of process of garnishment upon the sheriff, coroner, clerk, constable, master commissioner, marshal of the municipal corporation, or other officer having in his possession any money, claim, or other property of the defendant, or in which the defendant has an interest, shall bind it from the time of service,” etc.

As the Supreme Court points out, this statute does not undertake to’“provide or prescribe who may be served with garnishee process, ’ ’ but only ‘ ‘to define the effect of service of the process of garnishment upon public officers. ”

As said, however, in Sampsell v. Sampsell, 9 Circ. Dec. 510 (17 R. 455, 460) a writ of garnishment, under favor of the preceding section, may be issued against “any person, partnership or corporation” that is possessed of property of the defendant. But this provision has been generally construed as not applying to public officials, and this is upon a theory of public policy requiring that the course of legal proceedings, and the duties of public officers, shall not be interfered with so as to protract litigation, produce conflict of jurisdiction, or otherwise embarrass the public business, unless the general assembly, by law, unequivocally provides that it may be done.

But, inasmuch as the general assembly has provided for the effect of the service of the writ of garnishment upon certain named officials, it must be held as against these, at least, that the issuance of the writ is authorized by the general language of Sec. 11828 G. C. So, also, with respect to any officer, public or private, who is not strictly an “other officer” within the meaning of Sec. 11829 G. C. it must be held that the language of the preceding section is sufficiently broad to authorize the issuance against him of the writ of attachment, unless it shall appear that such issuance is in conflict with the rule of public policy above stated, and not within the legislative waiver or modification thereof.

Where an order of distribution has been made, an assignee, administrator, executor or guardian may be sued by any distributee, or his assigns, for his or their distributive share. Braiden v. Mercer, 44 Ohio St. 389 [7 N. E. 155]; Garver v. Tisinger, 46 Ohio St. 56 [18 N. E. 491]; Webster v. Bible Society, 50 Ohio St. 1 [33 N. E. 297].

If public policy under such circumstances does not forbid the creditors of such officers to sue them for the recovery of distributive shares, there would seem to be no reason why, under like circumstances, a creditor of such creditor may not have the remedy of attachment or garnishment. If we are right in thus thinking, this case is not governed by either branch of the syllabus of Orlopp v. Schueller, supra. The first branch does not apply, because here an order of distribution was made, whereas in that case none had been made. The second branch does not apply, because the right to have the writ issued against Crosser, trustee, in the case at bar, does not depend upon Sec. 5531, R. S. (Sec. 11829 G. C.), but is allowable under the general language of the preceding section.

It may be added that Crosser, trustee, is not here objecting. On the contrary, he filed an answer alleging that he held money of the defendant in attachment subject to an order of distribution made by the insolvency court of this county, and subject to such order as might be made by the court which issued the writ of garnishment.

The judgment is affirmed.

Marvin and Winch, JJ., concur.


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    VENDOR AND PURCHASER
    [Cuyahoga (8th) Circuit Court,
    November 27, 1911.]
    Marvin, Winch and Henry, JJ.
    Arthur Coal & Coke Co. v. Pittsburg Coal Co.
    Mistake in Identity of Seller by Purchaser Held Want of Assent.
    When a purchaser buys from one whom he supposes to be his debtor and against whom he would have a right of set-off, a mistake as to the identity of the vendor prevents the contract from coming into existence for want of assent.
    Error.

      Lang, Cassidy & Copeland, for plaintiff in error.

      Holding, Hasten, Duncan & Leckie, for defendant in error.
   HENRY, J.

The Arthur Coal & Coke Co., which was plaintiff below, and is plaintiff in error here, sued as assignee of the Phillips Coal & Coke Co., an Ohio corporation, upon an amount for coal sold to defendant under a contract evidenced by a letter written by defendant to “the Phillips Coal & Coke Co.,” and by a letter of acknowledgment of the same date from the recipient of the order. The defendant contends that its contract was not with plaintiff’s assignor, but with an older concern of the same name, not an Ohio corporation, against which it had an account, and that it is therefore entitled to set off its account against said older concern, it being stipulated that the mutual accounts are identical in amount, so that the set-off, if allowed, constitutes a complete defense.

There is some dispute in the evidence as to whether the defendant was not seasonably apprised of the distinction between the two companies bearing the name “the Phillips Coal & Coke Co.” The jury’s verdict implies a finding that the defendant had no notice of the distinction, and there is sufficient evidence to support this finding.

C. L. Arthur dealt with the defendants agent of both companies in succession. Both companies occupied the same office, conducted the same kind of business, used the same stationery, and in other ways, disclosed by the evidence, afforded abundant-warrant for the jury’s finding in this behalf. As regards the identity of the vendor, it may be assumed, therefore, that the defendant was deceived, and also that it was prejudiced, unless it can avail itself of its set-off. With respect to the identity of the parties to the alleged contract, their minds failed to meet. The action here is upon an express contract, the plaintiff having disavowed any reliance whatever upon an implied contract. Nor would this make any difference, for, in the Columbus, H. V. & T. Ry. v. Gaffney, 65 Ohio St. 104 [61 N. E. 152], it was expressly held that ‘ ‘ The meeting of the minds of parties upon its terms is necessary to the making of a contract; and this is so whether it be an express contract or an implied one, if, in the latter ease, the contract to be proved is an actual one as distinguished from a constructive contract.”

The charge to the jury presents, therefore, the sole grounds of error complained of here.

The court charged, that notwithstanding the selling agent, Mr. Arthur, may have been in fact acting for plaintiff’s assignor in making the contract, yet, if he did not so inform the defendant, and if the defendant in good faith supposed and believed it was contracting with a company with which it had previously dealt, and which was indebted to it, the situation would be that the minds of the parties never met in respect to a material part of the contract.

And again, the court charged that the burden of proof is upon the plaintiff to show that the contract was made between the defendant and plaintiff’s assignor, or, in other words, that defendant was informed or knew that it was contracting for the purchase of said coal with plaintiff’s assignor, and not with the company with which it had previously dealt under that name.

It is, no doubt, ordinarily true that the identity of the vendor in an executed contract for sale is of no moment to the vendee who has negotiated with one person, believing him to be another, and has received and retained the goods bargained for. Ordinarily, too, the burden of proof with regard to the identity of parties is fully satisfied by showing mere identity of names of persons. Where, however, the vendee’s right of set-off is involved, and where there is, as in this case, a confusion of identity, an occasion for the application of the rules laid down by the trial court may well arise. Cases of this sort, though unusual, except where deliberate fraud is perpetrated, are nevertheless treated of in the books. In Benjamin on Sales, 7th Edition, See. 58, the distinction is laid down as follows:

‘1A mistake as to the person with whom the contract is made may or may not avoid the sale, according to circumstances. In the common case of a trader who sells for cash, it can make no possible difference to him whether the buyer be. Smith or Jones, and mistake of identity would not prevent the formation of the contract. But when the identity of the person is an important element in the sale; as if it be on credit, where the insolvency of the buyer is the chief motive which influences the assent of the vendor, or when the purchaser buys from one whom he supposes to be his debtor and against whom he would have the right to set off the price, a mistake as to the person dealt with prevents the contract from coming into existence for want of assent.”

See also: Parsons, Contracts, 9 Ed., p. 565; Mechem on Sales, Sec. 267; Wald’s Pollock, Contracts, 5 Ed., p. 591.

We have examined the cases cited by the plaintiff in error without discerning any sufficient reason for refusing to recognize the rule laid down by Benjamin, and the judgment is affirmed.

Marvin and Winch, JJ., concur.


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    CONTEMPT — DIVORCE AND ALIMONY
    [Cuyahoga (8th) Circuit Court,
    November 27, 1911.]
    Marvin, Winch and Henry, JJ.
    Lulu S. Mackenzie v. Peter Mackenzie.
    1, Refusal to Punish for Contempt in Failing to Pay Alimony Discretionary.
    Though judgments in contempt proceedings are reviewable on error, a refusal to punish for contempt is, in general, a matter wholly within the discretion of the court.
    2. Removal of Child beyond Jurisdiction of Court Preventing Parent from Visiting Child Defense in Contempt.
    Such discretion is not abused where the trial court refuses to punish a defendant for failure to pay alimony, the plaintiff herself, having removed a child of the parties beyond the jurisdiction of the court so as to prevent the defendant from visiting it, as allowed by the court.

      P. G. Kassulker, for plaintiff in error.

      R. E. McKisson, for defendant in error.
   HENRY, J.

Though, judgments in contempt proceedings are reviewable on error by Sec. 12146 G. C., a refusal to punish for contempt is, in general, a matter wholly within the discretion of the trial court. Such a proceeding is quasi-criminal, and though jurisdiction therein may be invoked by persons aggrieved, by disobedience of the court’s orders, it is primarily for the vindication of the dignity and sovereignty of the state in the exercise of its judicial power, rather than for the redress of private wrongs, that such jurisdiction is exercised. One who is punished for contempt may have his review. But one who unavailingly invokes such punishment for another, can complain only, if at all, of the abuse of the court’s discretion in refusing so to punish. Here the plaintiff, having taken her child beyond the jurisdiction of the court that had awarded her alimony, and also the custody of said infant, subject, however, to the defendant’s right to see and visit it, can not complain of abuse of discretion by said court in refusing to punish the defendant for contempt for discontinuing payment of such alimony.

The judgment is affirmed.

Marvin and Winch, JJ., concur.