author: Winch, J.; ITenry, J.,

text:
    OWNERSHIP OF CHECKS DEPOSITED IN BANKS.
    Circuit Court of Summit County.
    Minor H. Howe v. The Akron Savings Bank Company.
    Decided, December 30, 1905.

      Deposit in Insolvent Banlc — Actual Knowledge of Insolvency by Officers Necessary to Recovery Bade — Gheclcs and Drafts Deposited to be Treated the Same as Money.

    1. A deposit made in an insolvent bank may be recovered back in an action against a receiver of the bank, only when it is shown that at the time the deposit was received the officials of the bank knew or believed that it was insolvent.
    2. Cheeks and drafts upon banks deposited with money and passed to the depositor’s credit are to be treated as becoming the property of the bank, raising the relation of debtor and creditor, unless there is an express agreement that they are deposited for collection only.
   Winch, J.; ITenry, J.,

concurs;

Marvin, J., not sitting.

This matter was heard on appeal, the direction of the court being requested by the receivers of the bank on a claim for preference made by D. W. Bowman, one of the creditors of the bank, who, on April 4th, 1904, at about noon, deposited with it certain money, a New York Bank draft and certain checks on other banks, the total amount of which was credited to him on his pass-book and on the books of the bank. At nine o’clock the next day, April 5th, 1904, the doors of the bank were closed and the receivers took possession of all the assets and property of the bank. The draft and checks had been forwarded to the bank’s correspondents and charged on their respective accounts before the receivers took charge, but they subsequently collected (Tom the bank’s correspondents the amounts due from them as shown by said accounts, including the amount of said draft and checks.

At the time of receiving said deposit the bank was. insolvent. The receivers allege that this fact was unknown to the bank at the time it received Bowman’s deposit. Bowman alleges that the fact of said insolvency was tlien known, or, by the exercise of ordinary care and diligence, ought to have been known to the bank’s officers and directors. Upon this issue affidavits have been filed, which fail to establish the fact that the officers of the bank, or its directors, know of that insolvency at the time they received Bowman’s deposit, but tend to establish the fact 'that might have known had they used such care and diligence. Upon these facts Bowman claims he is iientitled to preference for two reasons, first, the act of the bank in receiving the deposit when it was insolvent was such a fraud upon the depositor as to authorize him to rescind the transaction and recover from the receiver the amount of said deposit, or at least the drafts and checks, provided the bank at the time knew, or by the exercise of ordinary care and diligence might have known, that it was insolvent.

The trouble with this proposition is that it goes one step further than the adjudicated cases on the subject by introducing the suggestion that fraud exists if the bank officials. might have known of the insolvency. The true rule is stated by Judge Cook in the recent case of Baker v. Orme, 6 C.C. (N.S.), 289, and the reasons for the rule given in the case of Quin v. Earl, 95 Fed. Rep., 728, where it is 'said “ * * * the officers of the bank must have known or believed that it was insolvent at the time the deposit was received; and such knowledge can not be presumed, but must be proved.” See also Woodworth v. Paige, 5 O. S., 71 : “Having failed to prove that the bank officials had such knowledge, claimant is not entitled to rescind the transaction for fraud. ’ ’

Second. It is claimed that title to the draft and cheeks deposited by Bowman, as distinguished'from the money deposited by him,- did not pass to the bank.

In this connection another allegation should be read from the motion:

“These receivers further say that it was the custom of said bank to credit to the accounts of its respective depositors checks and drafts deposited by them at the time of making such deposits, and if payment of any such checks or drafts was thereafter refused by the drawers or makers thereof, or if any such checks or drafts were dishonored and not collected by said savings bank company, the amount of such, checks or drafts thus unpaid or remaining uncollected was required to be made good by the depositor or depositors thereof. ’ ’

The proposition of law thus raised is stated as follows, in Zane on Banks and Banking, Section 133:

“Ordinarily a man who has checks or drafts takes them to a bank and deposits them for credit to himself. If nothing is said or written to indicate the intention, the deposit is for the depositor’s credit. But where such a deposit is made, the question as to where the title remains is a much debated contention. If the checks or drafts are on the particular bank in which they are deposited, a credit of them as cash to the depositor is payment, and by the great weight of authority that payment is final and irrevocable. The checks, thereupon, have passed from the ownership of the depositor. Where the checks and drafts deposited for credit are on another bank than the one receiving them it is usual for them to be credited as cash. The point is, however, whether they pass to the bank as owner, or as a mere bailee, where they are credited as cash. Some courts erroneously say that, if the depositor is allowed to check against the deposit, the title is in the bank. Other courts deny this, and say the right to check against the deposit is a mere privilege.
“This latter idea is the true one, because there is no question on the authorities but that the bank, having received checks or drafts on other banks as cash credited, has the right to revoke the credit if the collection is not made; but this would not be possible if the title had passed. ’ ’

The leading authority sustaining the contention of claimant is City of Somerville v. Beale, Receiver, 50 Fed. Rep., 647.

The contrary doctrine is expressed in Metropolitan National Bank v. Lloyd, 90 N. Y., 530:

“M, who kept an account with the M. & M. Bank of Troy, deposited with that bank a check given for value, drawn by defendant payable to the order of M and indorsed by him in blank. Said bank credited the amount of the check in M’s bank passbook, which was returned to him, and on the same day it mailed the check to plaintiff, its correspondent in New York, and its creditor, to be, credited on account, and it was so credited. M stopped payment of the check and when plaintiff caused payment to be demanded from the drawee it was refused. Notice of presentation and protest was given to defendant who subsequently paid the amount to M. In an action upon the cheek, Held: That upon the deposit the M & M bank became the owner of the check, and as such could and did give a perfect title to its transferee; and that plaintiff was entitled to recover.”

It is true that at any early date a deposit of money with a bank was considered as a bailment. The very word “deposit” is the technical designation of one kind of bailment, but from the fact that all depositors in banks were soon presumed to know that banks treated moneys deposited with them as their own and used them as such, in fact, could not do business at a profit unless they did, the courts long since decided that a general deposit of money with a bank created the relation of debtor and creditor, and that the relation of bailee and bailor no longer existed. Why the old theory of bailment should be maintained in Ohio at this day with regard to checks and drafts does not clearly appear. It can not be because of any custom of the bank to charge back against the depositor’s account the amount of any worthless checks; for that right exists in Ohio under the name of set-off (Bank v. Brewing Co., 50 O. S., 151). It is true that in the case cited that bank applied the deposit on the note of its depositor to it, but in the case of a deposit of checks and drafts, the depositor indorses them and thus becomes himself liable to the bank on them. In this view of the case the evidence as to the custom of banks 'is immaterial and irrelevant. The reason for preserving the distinction between moneys deposited in banks and checks or drafts so deposited having failed in Ohio, .we see no reason for applying the rules of the law of bailment to the deposit of checks and drafts as claimed by Bowman, and, therefore, deny the preference he claims.

The conclusion here reached seems to have been assumed to be the law of Ohio by Judge Cook in the case above referred to, for on page 468, in stating the facts of that case, he ,says: ,

“The money and checks were credited as one item in the pass book of plaintiff and passed to his credit in the bank, he at that time having a credit in the bank of $100 which made a balance in his account of $383. This deposit was made in the usual course of business of depositors, nothing being said about collecting the cheeks for plaintiff and no doubt it was a general deposit and the relation of debtor and creditor immediately took place, ’ ’

We are not inclined to think that the line of federal authorities cited by counsel for claimant are sustainable upon the doctrine of fraud and rescission, and not under the law of bailment, and this view is sustained by the case in 95 Fed. Rep., 728, where most of said cases are reviewed.

Decree may be drawn as here indicated.


source: Caselaw Access Project

author: Wtncii, J.; Henry, J., and Marvin, J.,

license: Public Domain

text:
    AS TO ACCEPTANCE OF SHIPMENT OF APPLES.
    Circuit Court of Summit County.
    The Wiener Brothers Co. v. H. E. Crouse.
    Decided, April Term, 1909.

      Shipment of Apples at Agreed Price — Consignor Agrees to Alloiu for Shortage — Held to Apply to Quantity and Not Quality.

    Upon receipt of a shipment of apples consignee wired: “Apples all varieties mixed. Too many bruised and spotted. Release car and if not too much shortage will send check in full. Treat you right.” Consignor released the car, consignee sold the apples and remitted for the full quantity of apples shipped, but at a reduced price. In an action for the balance of the agreed price, Held: That the word “shortage” referred to the quantity and not the quality of the apples, and consignee having accepted and sold all the apples, must pay the agreed price for them.
   Wtncii, J.; Henry, J., and Marvin, J.,

concur.

The bill of exceptions in this case discloses a contract entered into by Crouse whereby he sold to plaintiff in error and it agreed to buy a carload of apples at $1.65 per hundred pounds delivered on the track at Akron, freight paid. Two-thirds of the apples were to be red in color, mostly Baldwins, and all were to be handpicked and the colors separated in the car. A carload of apples was shipped to Akron consigned to the seller, with orders to deliver to plaintiff in error; upon arrival of the car plaintiff in error inspected the apples and wired Crouse as follows: "Apples all varieties mixed. Too many bruised and spotted. Release ear and if not too much shortage will send check in full. Treat you right.”

Crouse agreed to this proposition, released the car, and the Wiener Brothers Co. took the apples and sold them, but remitted to Crouse for the full quantity of apples at the rate of $1.50 per hundred weight only, less freight and a commission on sales, claiming that the apples were not up to representations and that they had sold them for the best price obtainable for Crouse’s account to save him loss, the apples being perishable. Crouse sued for balance of the agreed price for the apples and recovered. The only complaint of plaintiff in error is with regard to the charge in that the trial judge charged among other things as follows:

“As the court has indicated, the quality is a part of the description of the' apples agreed to be sold and the plaintiff was bound to furnish apples corresponding with the description. If he tendered apples of an inferior quality the defendant was not bound to accept them. But if it did accept them, it is, in the absence of fraud, deemed to have assented that they corresponded with the description, and it is concluded from subsequently questioning it.
“This imposed upon the defendant the duty of inspection before acceptance, if it desired to save its rights in case the apples were of inferior quality. It could do nothing which was inconsistent with the right of rejection, or do only what was consistent with acceptance and ownership, without precluding itself.
“When the purchaser has a full opportunity to inspect the property but fails to do so, and the representations were not such as should have misled him, he has no right to complain if the property sold does not measure up to the representations of the seller. ’ ’

It is said that this charge was misleading because after inspection of the apples the defendant below sent the telegram already mentioned whereby the contract was modified to the extent that it was not to pay in full,' if there was too much shortage, and that the evidence clearly disclosed a large shortage. In argument it was claimed that the word “shortage” referred to quality as well as quantity, but with this interpretation of the word we can not agree.

The defendant paid for the full quantity of apples shipped, but at a lower price than agreed. He thus conceded that there was no shortage of quantity.

Had he rejected the bruised and spotted apples and paid for the balance at the agreed price, his claims might have been more tenable, for thus would have arisen a shortage perhaps covered by the wording of the telegram.

We find no error in the charge and the jury appears to have • reached a proper conclusion.

Judgment affirmed.


author: Winci-i, J.; Henry, J., and Martin, J.,

text:
    THE BLOCKING OF STREETS BY RAILWAY TRAINS.
    Circuit Court of Summit County.
    City of Akron v. H. H. Temple.
    Decided, April Term, 1909.

      Gars Standing at Grossing — Authority to Adopt Ordinance Regulating— Evidence — Parol Evidence as to Operating Under a Written Contract Receivable — Common Pleas Court Reviewing Conviction Before Mayor, to Remand Cause for Further Proceedings.

    1. The superintendent of a division of a railroad having testified in a prosecution for violation of an ordinance regulating the time a train may he permitted to stand across a street crossing, that his railroad had nothing to do with the operation of trains on the division where the crossing existed, it is error to refuse to consider his evidence to that effect when it subsequently develops in the trial that the traffic agreement with another railroad regulating control of trains at the place in question was in writing.
    2. Upon reversal by the Common Pleas Court of a judgment of conviction for violation of a municipal ordinance in a mayor’s court, the cause should be remanded to the mayor’s court for further proceedings, unless the ordinance in question is invalid, or no offense was charged in the affidavit.
    3. A municipal corporation lias authority to pass an ordinance regulating the time railroad trains may be permitted to stand across street crossings.
   Winci-i, J.; Henry, J., and Martin, J.,

concur.

IT. IT. Temple is tbe superintendent of the Newcastle division of the B. & O. R. R. Co., extending from Newcastle, Pa., to and through Akron, Summit county, Ohio, to Chicago Junction, Ohio, lie was arrested for violating an ordinance of the city of Akron which makes it a misdemeanor to permit a train of cars to stand or remain more than five minutes on any street or alley of said city where a railroad crosses such street or alley at grade, was tried by the mayor of said city and convicted. On error to the common pleas court said court reversed the judgment of the mayor’s court and discharged the accused. The case has been brought here on error for a review of said judgment of reversal. Of course, if there was any error in the trial of the accused, by the mayor, prejudicial to his rights, said judgment of reversal must be affirmed.

We think there was at least one serious error committed by the mayor in his rulings on the admissibility of evidence.

J. T. Johnson, superintendent of the Cleveland division of the B. & O. railroad, was offered as a witness by the prosecution and upon cross-examination testified, over the objection of the prosecution, that the B. & O. railroad had no supervision over the movement of trains upon that part of its Newcastle division which lies between Akron Junction and Warwick, including the tracks Where the train had been permitted to stand, but that the C., A. & C. R. R. Co. directed the movement of all trains over said portion of the tracks under an agreement between the two railroad companies. Upon re-direct examination it was brought out that the agreement referred to was in writing, whereupon the prosecution requested that the testimony of the witness relating to the movement of trains between Akron Junction and Warwick be disregarded, because the written document was the best evidence. .This motion was granted and thereby the accused was prejudiced in his rights.

The question was, who actually had supervision of the trains at the point in question. Whether the right to supervision was dependent upon a written agreement or not, made no difference. It was for the prosecution to establish that Temple had control over the movement of the train complained of which blocked the street. Its own witness testified that he did not; it was immaterial that it subsequently developed that the reason he had no control at that point was because of a written agreement with some other railroad whereby the other road had said control. The question was what was done under contract, not what the terms of the contract might be. The accused offered competent evidence to prove that he had nothing to do directly or indirectly with the movement of the train in question at the time and place complained of. By the rejection of this evidence his rights were seriously prejudiced. Had this evidence been considered, no judgment against him could stand. For this reason, if for no other, the judgment of the mayor was properly reversed.

But upon reversal of the cause, the common pleas court should have remanded the case to the mayor’s court for further proceedings, -unless it was found that the ordinance' was invalid or no offense was charged in the affidavit. Upon this point we hold that a municipal corporation has authority to pass ordinances upon the subject in question by virtue of Section 1536-131, Revised Statutes, which imposes upon the council of a municipality the care, supervision and control of public highways, streets, etc., within the corporation, with directions that it shall cause the same to be kept open and in repair and free from nuisance.

The ordinance in question not being set forth in the bill of exceptions, we must assume that it conformed to the authority ’thus given and the affidavit we find charges an offense within the intendment of a valid ordinance.upon the subject. It was error, therefore, to discharge the accused. The judgment of reversal is affirmed, but the order discharging the accused is reversed and the cause is remanded to the court of common pleas for further proceedings.


author: Winch, J.; Henry, J., and Marvin, J.,

text:
    INJURY TO ONE OPERATING A DERRICK.
    Circuit Court of Summit County.
    The Kile Manufacturing Co. v. Joseph Peterson.
    Decided, April Term, 1909.

      Defective Machinery — Opinion Evidence.

    It is improper to permit an expert witness to give his opinion as to whether it was safe to operate an ordinary foot brake which had been worn smooth through use, so that the foot was apt to slip off of it, there being nothing complicated about the brake, and the question being the ultimate fact for the jury to find from all the evidence in the case.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

Joseph Peterson was injured while in the service of the Kile Manufacturing Company, unloading logs from a car by means of a derrick. He sued the company for his damages thus sustained and recovered a judgment. The trial judge succinctly stated to the jury the specifications of negligence which Peterson must prove:

“First. That the defendant company negligently failed and neglected to provide a safe and approved style of brake and lever to control the movement and operation of the hoisting machine referred to in this action, commonly known as the foot brake— foot brake or lever.
“Second. That the foot brake or lever furnished and provided by the defendant company had been carelessly and negligently allowed and permitted to become and remain smooth, slippery and ineffectual to safely control the movement and operation of said hoisting machine.
“Third. That the defendant company was careless and negligent in placing in control of said hoisting machine an unfit, unskilled and incompetent person for that purpose.”

There was no evidence introduced tending to prove that the style of brake used was not proper, but there was evidence tending to show that the brake had been permitted to become smooth, slippery and ineffectual to safely control the movement of 'the hoisting machine and that it was operated at the time of the accident by an incompetent person.

With these ultimate facts in mind, which the jury was to determine, was it proper to permit the witness, Flynn, who qualified as an expert, to testify as shown on page 112 of the bill of exceptions as follows:

‘ ‘ Q. Mr. Flynn, if that brake, that foot brake controlling the boom, up and down movement of the boom, when a log was on it or when off, was controlled by a foot brake at the time of the injury, the place where the foot went on, the part — the handle where the foot went on to control it was smooth and worn and not protected on the sides to prevent a slipping, would you say that that was a reasonably safe appliance in connection with which Mr. Peterson had to do his work out on the car hooking these tongs into the logs ?
“Objected to.
“The Court: Reasonably safe appliances for the operation of said hoisting machinery, that is what you mean.
“Objection overruled; defendant excepts.
“A. . I could not say it was safe.
“Q. What would you say about it being unsafe?
“The Court: The question was whether it was reasonably safe, that is the question, what is your answer?
“Objected to; objection overruled; defendant excepts.
“A. Anything but safe.”

This was one of the questions the judge finally submitted to the jury, and it would seem that it was improper to substitute the judgment of Flynn for that of the jury. There was nothing intricate or complicated about the machine. If the brake operated by the foot was smooth, the foot would likely slip off of it, particularly if operated by an incompetent man. If the foot slipped from the brake, an accident was likely to happen, because the hoisting machine would immediately lower the log. One does not need to be an expert to know this and the facts were all before the jury for it to draw its own conclusion as to whether the appliance was safe, in the condition and under the circumstances shown in evidence which resulted in Peterson’s injury.

The rule is well stated in the first two paragraphs of the syllabus of the case of Torpedo Co. v. Fishburn, 61, O. S., 608, as follows:

‘ ‘ Opinion evidence may not be given where an opinion is asked' as to the precise, ultimate fact in issue which is to be tried by the jury, but such testimony is not necessarily incompetent if it calls for an opinion as to a matter which is evidentiary only and merely tends to. establish a fact which may be involved in the issue.
“Such evidence is not competent where the matter inquired about is one within the common knowledge of men of ordinary information, and it is practicable to place before the jury all the primary facts upon which a conclusion is to be based, but where a witness is shown to be learned, skilled or experienced in a particular business, he may be asked to give an opinion as to pertinent matters which are not the subject of common knowledge, and as to which the jury is not so competent as is the witness to draw the proper conclusion from the general facts proven.”

See also the case of Railroad Co. v. Schultz, 43 O. S., 270, and cases there cited.

It is likely that the trial judge committed the error of permitting Flynn to answer the question complained of through inadvertance, for he ruled properly upon objection of defendant below to a similar question, as shown on page 108, and upon objection oE plaintiff below to a like question, as shown on page 296, but the prejudice likely to result from such incompetent evidence was enhanced in this case by the charge of the court upon the weight to be given the opinions of experts, as found upon page 380:

“Certain witnesses have testified as to their opinions touching the operation of the hoisting machine and its different appliances. Such evidence is admissible and should be considered by the jury, together with all the other evidence in the case, giving such weight and credit thereto as in the fair and reasonable judgment of the jury it is justly entitled to.”

We find no other errors in the record prejudicial to the rights of the plaintiff in error; the verdict does not seem excessive, or unwarranted by the evidence.

Judgment reversed for error in ruling on evidence.


text:
    LIABILITY FOR. INJURY TO AN EMPLOYE WHO FELL INTO A DITCH.
    Circuit Court of Summit County.
    The Akron Selle Co. v. Herman Jost.

    Decided, April Term, 1909.

      Employer’s Liability for Unguarded Ditch — Independent Contractor— Terms of Yerbal Contract for Jury and Not to be Construed by Court.

    1. An employer of labor can not absolve himself from liability for leaving a ditch on his premises unguarded, into which his employes are liable to fall and be injured, by showing that he let the contract for digging the ditch to an independent contractor.
    2. It is not for the coprt to construe the terms of a verbal contract but for the jury to determine what the terms of the contract are.

       Affirm eel without opinion Akron Selle Co. v. Jost, 85 Ohio State, 452,

   Winch, J.; Henry, J., and Marvin, J.,

concur.

Jost recovered for .damages received through the alleged negligence of the company in leaving a ditch unguarded upon its premises where he worked into which he fell and broke his leg. The- company claimed Jost himself was careless and that, in any event, it was not liable because the ditch had been dug and left unguarded by an independent contractor, over whom it had no control, to whom it had let the work of building an addition to its factory.

The accident happened after dark as Jost stepped into the yard for the purpose of attending to a call of nature.

Without going into the evidence in the case, which we have carefully considered, we think the jury was justified in finding that Jost was not guilty of contributory negligence.

Conceding that the work was being done by an independent contractor and that the company retained no control over the doing of the work, still we think this can not avail as a defense under the circumstances of this ease. One can not dig a pit upon his own premises where he knows his employes are accustomed to go and liable to injury and thus be free from blame; neither can he hire somebody else to dig it and thus absolve himself from liability. The rule in Ohio is well stated as follows:

“If the necessary or probable effect of the performance of the work would be to create a nuisance or to injure or expose third person to danger, unless the work is carefully guarded, then the defendant i's not relieved from liability because the work is done by a contractor over whom the defendant has no control in the manner and mode of doing it.” Railroad Co. v. Morey, 47 O. S., 207; Bridge Co. v. Steinbrock, 61 O. S., 215; Hawver v. Whalen, 49 O. S., 69.

This rule the trial judge gave to the jury and is warrant for plaintiff’s request to charge, which was given, and the fault with the company’s sixth request to charge is that it ignored the fact that the performance of this work, under the circumstances shown by the evidence, exposed Jost to danger.

The company’s fourth request to charge was also properly refused because it made the fact that the company had provided a urinal at a distant part of the shop an absolute defense if its employe happened to fall into an unguarded ditch somewhere else on its premises when going to some other place to relieve himself. On this point it may be said that it was shown in evidence that the company had knowledge that its employes were accustomed to use the place Jost was going to, for that purpose, and no knowledge of any rule against it was brought horiie to Jost.

The proposition that it was for the court to construe the verbal contract under which the independent contractor was working, is untenable. It was for the jury to determine what the terms of the contract were. Ilow could the court construe the contract before the jury had determined its terms.

Having examined all the allegations of error and finding none well taken, the judgment is affirmed.


author: Winch, J.; I-Ieney, J., and Marvin, J.,

text:
    INSTRUCTED VERDICT — BURDEN OF PROOF.
    Circuit Court of Summit County.
    Jacob Nobil v. B. & O. R. R. Co.
    Decided, April Term, 1909.

      Judgment Notwithstanding Terdici — Error Where Facts Not Conceded.

    It is error to enter judgment for the defendant, notwithstanding the verdict against him, although his defense is established by his own witnesses and they are not contradicted by the plaintiff. The jury may not believe the defendant’s witnesses. It is only upon the conceded facts of the case that a verdict may be directed or a judgment rendered notwithstanding the verdict.
   Winch, J.; I-Ieney, J., and Marvin, J.,

concur.

A proper determination of the question here involved requires a consideration of the pleadings, so as to locate the burden of proof.

The case was tried upon the amended petition, the answer to it and the reply to the latter. Said amended petition is as follows:

“Defendant is a corporation created by and under the laws of the state of Maryland.
“On the 9th day of March, 1907, defendant was a common carrier of goods for hire from the city of Portsmouth, Ohio, to the city of Akron, Ohio, and on said date, in consideration of the freight charges fixed by defendant, and which have been paid by plaintiff to defendant, defendant agreed to carry safely for plaintiff, from Portsmouth, Ohio, and to deliver to plaintiff at the city of Akron, Ohio, and plaintiff then and there delivered to the defendant, for that purpose, — 40 cases of Shoes, of the value of fifteen hundred and eighty-three and 86-100 ($1,583.86) dollars.
‘ ‘ A copy of said agreement is hereto attached and marked Exhibit A.
“But defendant did not safely carry and deliver said goods, but failed so to do, and permitted thirty-eight eases of said shoes to become water soaked, while in the possession of defendant for transportation, as aforesaid. Whereby said thirty-eight cases of shoes were wholly lost to plaintiff, to his damage in the sum of fifteen hundred and fifty-four and 46-100 ($1,554.46) dollars, with interest from the 29th day of March, 1907, for which amount plaintiff asks judgment.”

The amended answer, admitting the contract of carriage and receipt of the goods, sets forth the bill of lading in full, from which it appears that it was stipulated that the company should not be liable for any loss or damage to the goods shipped by causes beyond its control, or by floods, or fire, etc.

Then follows an allegation that the injury, damage or loss if any, resulting to said cases of shoes, was -wholly due to floods and to causes beyond the defendant’s control, and ,a denial of all other allegations in the amended petition.

The reply admits that the contract of carriage -was as set forth in said amended answer.

In this state of the pleadings it was necessary for the plaintiff to prove the value of the goods shipped and the damage resulting by reason of their having been watersoaked.

The burden was upon the defendant to prove that the loss occurred without its fault. Graham & Co. v. Davis & Co., 40 O. S., 362; Union Express Co. v. Graham, 26 O. S., 595; U. S. Express Co. v. Buckman, 28 O. S., 144.

The plaintiff introduced evidence tending to sustain the burden upon it, and rested. Thereupon the defendant moved for judgment, which -was properly denied, for it had not yet exonerated itself, as required by the authorities cited.

The defendant introduced evidence tending to show that the goods were damaged by an unusual flood, -without any fault on its part. The plaintiff failed to introduce any countervailing evidence on this subject, whereupon the defendant renewed its motion for judgment and the same was overruled.

This -was right. It would be like a plaintiff requesting a directed verdict where the defendant introduces no contradictory evidence. The jury is still to determine the credibility of the witnesses and may disbelieve any and all of them. We have repeatedly held that a plaintiff, upon -whom is the burden of proof, is not entitled to a verdict -directed in his favor, unless his claim is conclusively determined in his favor by an admis: sion of the defendant in his pleadings or upon the trial. In this case the burden was upon the defendant and the same rule must be applied.

The case being submitted to the jury, it brought in a verdict for the plaintiff, whereupon the defendant filed a motion for judgment in its. favor, notwithstanding the verdict, upon the ground that on the undisputed facts appearing of record the plaintiff was not entitled to recover.

It also filed a motion for a new trial alleging the usual grounds therefor.

The court granted the motion for judgment and overruled the motion for a new trial.

This was the proper practice, if the defendant was entitled to judgment, but holding the views already expressed on that subject, we think the trial judge erred in granting said motion.

What we should have done with the motion for a new trial we can not say, for there is no cross-petition in error.

The decision of the Supreme Court in the case of Cincinnati Gas & Electric Co. v. Archdeacon, 80 O. S., 1, must be applied according to the rule laid down in the third paragraph of the syllabus. What is said in explanation thereof by Judge Shauck on page 5. does not justify the judgment in this case. He speaks of the failure of the party upon whom- the burden of proof rests to offer substantial evidence in favor of all the allegations which the issues require him to support. Here the burden was upon the defendant. Nor was there concurrent testimony of all the witnesses. Plaintiff’s witnesses did not concur with defendant’s witnesses on the subject of the flood. .They were silent on the subject and the burden was on the defendant.

The judgment is reversed and cause remanded for further proceedings.


text:
    PROCEDURE BY A WIDOW.
    Circuit Court of Summit County.
    H. H. Henry, Executor, v. Dayton A. Doyle et al.

    Decided, April Term, 1909.

      Stiit on Administrator's Bond, by Distributee — Amount Due Must First be Liquidated.

    A suit can not be brought on an administrator’s bond by a widow to recover lier share of the personal estate of her deceased husband, until her claim has been liquidated in either the probate or common pleas court, pursuant to Revised Statutes, Sections 6195 to 6200 inclusive.

       Affirmed, Henry, Executor, v. Doyle, Executor, 82 Ohio State, 113.

   Winch, J.; Henry, J., and Marvin, J.,

concur.

The sole question presented by the record in this case is whether a suit on an administrator’s bond, by a widow, to recover her share of the personal estate of her deceased husband, may be brought by her under the favor of Section 6211, Revised Statutes, after the probate court has ordered the estate to be distributed according to law, as provided in Section 6187, or whether she must first have her claim liquidated -in either the probate or common pleas court pursuant to Sections 6195 to 6200, inclusive. The precise question here involved does not appear to have been adjudicated by the Supreme Court. Rockel in his excellent work on Probate Practice, 266, 267, states that the latter course is necessary; Bates and Whittaker entertain a contrary view. We think Rockel is right. The question is so fully discussed in briefs of counsel that further statement is unnecessary. The common pleas court having come to a like conclusion, its judgment is affirmed.


author: Winch, J.; Henry, J., ancl Marvin, J.,

text:
    REMOVAL FROM OFFICE FOR. A REASON NOT COVERED BY STATUTE.
    Circuit Court of Cuyahoga County.
    State of Ohio, on the Relation of George Billington, v. Bud M. Merril.
    Decided, May 10, 1909.

      Member of Council — liemoval from Office — What Not Sufficient Cause— Office and Officer.

    Council of a municipality can not remove one of its members from office on the ground that he lias married a wife< in another place, outside of the municipality, who continues to reside there.

      Fred Desberg, for plaintiff.

      Cook, McGowan & Foote, contra.
   Winch, J.; Henry, J., ancl Marvin, J.,

concur.

The relator was the duly elected, councilman of the village of Collinwood. On the 15th day of February, 1909, he was ousted from his office by the village council, and the defendant was elected in his place on March 8, 1909.

The resolution ousting the plaintiff was as follows:

"Whereas, the law provides that the council shall be the judge of the qualifications of its members, and whereas, George W. Billington has ceased to possess the qualifications of a member of the council, as prescribed by law in Section 120 of the municipal code of 1902, having removed from the municipality, and not having resided in Collinwood for a period of six or seven months last past, having acquired a legal residence elsewhere, to-wit. in Geneva, Ashtabula county, Ohio, by his marriage to a resident of Geneva who has continued to reside there, under the rule of law as embodied in Section 2946, Revised Statutes, that ‘the place where the family of a married man resides shall be considered and held as his place of residence,’ and
“Whereas, said Section 120 of the .municipal code provides that any member of the council who shall cease to possess any of the qualifications therein required or shall remove .from the municipality shall forthwith forfeit his office, now, therefore,
“Be ü Resolved, by the council of the village of Collinwood, state of Ohio, that it is hereby found and determined that said George W. Billington has forfeited his office, and that the office of said George W. Billington as a member of the -council of the village of Collinwood, be and the same is hereby declared vacant. ’ ’

This resolution means that because of Billington’s marriage to a resident of Geneva, Ohio, who has continued to reside there, he has become a non-resident of the village of Collinwood and therefore he has removed from said village.

The resolution is frivolous, and the reasons assigned for removing Billington are not reasons which can be sustained at la,w.

The conclusion drawn from the fact stated in the resolutions is not a correct conclusion either in law or good common sense, and because the resolution itself shows that the council acted unlawfully in attempting to remove the relator for a reason not assigned by statute for the removal of a councilman from office, the action of the council is set aside. We have not considered the question as to the right which the council itself has to judge of the election and qualification of its members or whether its action in that regard can be reviewed by the court; we have not been required to go into that matter, for the resolution on its face shows that relator was removed for a reason not given in the statute.

The judgment of ouster is therefore granted, as prayed for, and the relator inducted into the office to which^he was elected.


author: Winch, J.; Henry, J., and Taggart, J.,

text:
    ACTION HELD NOT APPEALABLE.
    Circuit Court of Cuyahoga County.
    E. A. Thompson v. James Rosenberg et al.
    Decided, May 17, 1909.

      Appeal — Foreclosure of Mechanic’s Lien — Grantee of Oioner May Appeal.

    In an action to foreclose a mechanic’s lien and for personal judgment against the owner at the time the work was done, to which action the grantee of the owner was made party defendant, the latter may appeal the action to the circuit court.

      H. F. Parks and PLowlamd & Niman, for plaintiff.

      H. A. Kangesser, John D. Fackler, Frank' Higley, Myler & Turney and Max E. Katz, contra.
   Winch, J.; Henry, J., and Taggart, J.,

concur.

Thompson brought his action on an attested account, praying for a personal judgment against the defendant, James Rosenberg, for the value of certain material furnished toward the construction of a house upon premises owned by Rosenberg at the time the materials were furnished, and that the amount of said account be declared a lien upon said premises. He also made A. B. Katz and others defendants, alleging that they claimed liens upon said premises and praying” that they be required to set forth their claims or be forever barred.

It appears that the defendant, Katz, purchased said premises of Rosenberg; no personal judgment was asked against him.

The judgment being in favor of Thompson and against Rosenberg and Katz, the latter appealed the case to this court, where he is met by a motion to dismiss his appeal on the ground that the ease is not appealable.

Motion overruled on authority of the case of Fleming v. Kirkendall, 31. Ohio St., 568.


author: Wincii, J.; Henry, J.,'and Taggart, J.,

text:
    RECOVERY BY ATTACHMENT OF PERCENTAGE ON SALES.
    Circuit Court of Cuyahoga County.
    The Northern Ohio Gas Appliance Company v. H. H. Hallett.
    Decided, May, 1909.

      Attachment Claim for Commissions— Ground For.

    An attachment will lie on the ground that the claim is for work and labor, when it appears that the attaching creditor’s claim is for commissions under an arrangement whereby plaintiff was to be allowed a certain percentage in sales made by him, although he had no employment requiring him to devote any part of his time to the business of making sales.

      John II. Smart, for plaintiff in error.

      White c6 Grosser, contra.
   Wincii, J.; Henry, J.,'and Taggart, J.,

concur.

The sole question in this cause is whether an attachment will lie on the ground that the claim is for work and labor when it appears that the attaching creditor’s claim is for commissions under an arrangement whereby he was to be allowed a certain percentage on sales made by him, but had no employment requiring him to devote any part of his time to the business of making sales.

We see no reason why an attachment should not be allowed in such eases; the work performed in making the sales on which the commission was claimed need not be compensated by fixed wages in order that the claimant may have an attachment. Such was the ruling in the case of Lewis v. Dawson, 6 C. C., 243, where a manufacturer’s agent employed on a salary of $20 per month and five per cent, on all sales made by him, was held to be entitled to a preference as to his claims under Section 3206a, Revised Statutes, providing that laborers and employes shall first be paid when their employer becomes- insolvent, and an assignee, receiver or trustee is appointed to administer his estate.

So the federal courts have held that one who works by the piece is entitled to priority under the bankruptcy act which provides that “wages” due workmen for services, earned within three months before proceedings in bankruptcy, shall be paid first. In re Gurewitz, 121 Fed. Rep., 982.

Tt is generally conceded that if an architect also superintends the construction of a building, and the drawing of plans and superintendence are both parts of one contract, he may have a lien to secure him both for his superintendence and the preparation of plans. Treadway Marlatt, Ohio Mechanic’s Lien Law, Section 35, and eases cited. It will be remembered that architects are usually compensated for their services on a percentage basis.

The mechanic’s lien law is for the benefit of those who perform work or labor.

The analogy of the case at bar to the cases cited is apparent enough to justify the conclusion that the same rule should be applied in all of them upon the contention here involved.

Judgment affirmed.


text:
    TRANSACTION BETWEEN HUSBAND AND WIFE.
    Circuit Court of Cuyahoga County.
    The Cleveland Dredge & Dock Co. v. Margaret K. Smith et al.

    Decided, June 7, 1909.

      Promissory Note — ■Endorsee in Due Course, But Without Consideration, May Recover — Husband and Wife — General Rules of Confidential Relationship Apply — No Presumption of Fraud.

    1. Payment of a note at maturity to the payee thereof, without requiring a surrender and cancellation of the note, will not prevent recovery on the note by an endorsee in due course, although no consideration for the transfer of the note to the endorsee appears.
    2. Although in transactions between husband and wife, their conduct towards each other is to be scrutinized in the light of the general rules which control the actions of persons occupying confidential relations to each other, that does not warrant a charge that the relationship of husband and wife is such as to afford every facility f,or fraud.

      Kline, Tolies c& Morely, for plaintiff in error.

      II. II. Johnson and K. L. Peeke, contra.

       Affirmed without opinion, Cleveland Dredge & Dock Co. v. Smith, 84 Ohio State, 482.

   Winch, J.; Henry, J., and Marvin, J.,

concur.

In tbe original action in the common pleas court Margaret K. Smith recovered on three promissory notes executed and delivered by plaintiff in error in April, 1905, to her husband, L. P. Smith, and by him endorsed to her; these notes were renewals of three several notes of like amounts executed' and delivered by said company to said L. P. Smith in April, 1904, which likewise bear an endorsement to the wife. The company admitted the execution and delivery to L. P. Smith of the notes sued upon, but claimed payment to him of the full amount therefor by the issue to him of stock of the company, and alleged that he neglectecl to deliver the notes to the company and endorsed them to his wife after maturity; that the wife paid no consideration for the notes and at the time of receiving them was fully advised of their payment.

Errors in ruling on evidence are alleged to have occurred on the trial. We have examined all the exceptions called to our attention, but we find no errors in that respect prejudicial to the rights of the plaintiff in error.

Errors in the instructions of the court are claimed which require an examination of the evidence upon which the judgment rests, for the court, in effect, charged that there was no evidence that the notes were transferred to Mrs. Smith after their maturity or that at the time of receiving them she was advised of their payment.

In the state of the pleadings, the nqtes bearing the endorsement mentioned, the court might as well have directed a verdict for the plaintiff.

Yet the whole record, which is voluminous, shows an effort on the part of the defendant to prove the truth of the allegations of its answer, by circumstantial evidence. After shutting Mrs. Smith’s mouth as to the real consideration passing from her to her husband for these notes, by invoking the rule as to transactions between husband and wife, the time spent in trying to prove that Mrs. Smith paid her husband nothing for the notes, we think, was wasted. lie had a right to give the notes to his wife, for the record shows him. individually solvent at the time the company executed the original notes, though the company may not have been solvent. .We have found no authorities sustaining the broad claim of counsel for plaintiff in error that where no consideration passes between the payee and endorsee in due course of a negotiable note, payment at maturity to the payee will prevent recovery by the endorsee. Such a rule would jeopardize the value of many of the securities held by educational and charitable institutions.

What then are the circumstances in this case that tend to overcome the presumption arising from the possession of these notes by Mrs. Smith, properly endorsed, .that such endorsement was made to her prior to the maturity of the notes?

L. P. Smith was president of the company. Margaret K. Smith was his wife, and she owned one share of stock in the company and was a director in it until these notes matured. She had like' connection with a Lorain company which was merged with this company at the time the notes are said to have been paid; she consented to this merger. She had notice that a meeting of the company was called for the purpose oü increasing the capital stock of the company, buying the Lorain company, changing the name of the company and the transaction of such other business as might come before such meeting, and she expressly agreed to the increase of stock.

This meeting was held on the very day the last note matured, but she was not present at it. At the meeting a scheme for financing the company was agreed upon which required her husband to take stock for his claims against the company, which appear to have, largely exceeded the amount of these notes, and provided that the creditors of the company should turn in their claims against the company, accept in lieu thereof individual notes of L. P. Smith and his brother, secured by their stock in the company, ‘ ‘ and upon such exchange being effected the notes, claims and demands against said companies * * * should be canceled and surrendered to said company.”

L. P. Smith signed this agreement, both as a creditor and as one of the parties agreeing to carry it out. Margaret K. Smith and two other creditors did not sign the agreement. L. P. Smith did not advise the company that the notes had been assigned to his wife and everybody else connected with the transaction supposed he still owned the notes. The books of the company show his personal account charged with the payment of the interest on the notes until their renewal. The renewal was to him instead of to his wife. The company has paid the notes once to the husband and says that the claim of the wife is a scheme arranged between her and her husband to defraud it, and that she should not have the assistance of the courts to this end.

Whatever bad faith is chargeable to L. P. Smith in this transaction, are we to impute to his wife, because of their relationship only? Is she not to be presumed an honest woman until the contrary is shown? There is nothing in the facts stated which would preclude her recovery were she not the wife of L. P. Smith. Tn transactions between them, her conduct is to be considered in the light of the general rules which control the actions of persons occupying confidential relations with each other, but that does mot mean, as the defendant below requested to be charged, that the relationship of husband and wife is such as to afford every facility for fraud. Here suspicion that she committed a fraud is not sufficient. If she is innocent of wrongdoing, the fraud her husband may lie guilty of would be directed against her instead of against the company, were it to prevail in this law suit. She does not appear to have been guilty 'of laches, while the company was. It should have required a surrender and cancellation of the notes, when they were paid. It is not sufficient to excuse this neglect to say that L. P. Smith was the president of the company and its trusted officer. The affairs of the company were in the hands of a committee of bankers under an agreement which provided that creditors •should surrender and cancel their notes, claims and demands, at the time they were satisfied. Had the committee attended to this duty, no law suit would have arisen over the payment of these notes. We are inclined to let the consequences of this negligence rest upon those who were guilty of it.

Judgment affirmed.


author: Winch, J.; HeNry, J., and Marvin, J.,

text:
    PRESUMPTION AS TO ACCOMMODATION ENDORSEE.
    Circuit Court of Cuyahoga County.
    The Forest City Savings & Trust Company v. Alexander Campbell.
    Decided, June 7, 1909.

      Promissory Note — Accommodation Endorsee Told That Note Had Been Paid — Estappel—Presumption.
    1. In a suit by a bank against an accommodation endorsee of a note ■ who defends on the ground that he went to the bank to pay the note when it was due and was told that it had been paid, it is not competent for the bank to introduce in evidence a memorandum in writing made by its secretary and treasurer and pinned to the note, to the effect, that extension of time of payment had been consented to and reduction of interest had been made.
    2. To work an estoppel there must be prejudice to the party setting up tlie estoppel, as well as fraud or bad faith, or their equivalent— gross negligence — in the party to be estopped.
    3. The presumption is that an accommodation endorsee of a note, who offered to pay it when due and was told that it had been paid, would have proceeded against the makers of the note to recoup himself, if he had been required to pay the note, and this is so even though the makers of the note were his sons.

      Smith, Taft & Arler, for plaintiff in error.

      Westenhaver, Boyd, Rudolph c& Brooks, contra.
   Winch, J.; HeNry, J., and Marvin, J.,

concur.

The bank sued Campbell as guarantor of a promissory note executed by Campbell Brothers, a contracting firm conposed of his two sons. Campbell answered admitting the execution and endorsement of the note, but alleging that he endorsed the note for accommodation merely, as was known by the bank, and further alleging that at the maturity of the note he went to tlie bank and offered to pay it, but was told by its secretary and treasurer that the note had been paid, relying upon which statement he took no steps to compel the payment of the note by his sons who were then solvent, but who became insolvent about fifteen months later. A reply filed by the bank put these allegations in issue. The trial resulted in a verdict- for the defendant, and the first claim of error is that the verdict is not sustained by sufficient evidence. Upon this point, without stating the facts shown in evidence, we think that from the testimouv of the defendant, his son-in-law, Kidd, and the admitted course of dealing between Campbell Brothers and the bank, which made the firm’s collections for it, kept its books at the bank and made credits from time to time .as notes matured, and other circumstances shown in evidence, the jury might well have found as it did.

There are several rulings on evidence which recpiire examination.

The secretary and treasurer of the bank had pinned a memorandum upon the note reading as follows: “On October 8, 1900,

Sir. Alex Campbell called at the bank and consented to the indefinite extension of this note, but the interest should be reduced to six per cent.” This memorandum was offered in evidence as tending to confirm the secretary’s testimony that he had not told Mr. Campbell that the note was paid, but on the contrary had arranged with him for an extension of time at a lower rate of interest. The memorandum was excluded, and rightly, -we think. It was a self-serving statement and no more competent than would have been a letter to the same effect from the secretary to some other official of the bank.

Nor was it competent to show by members of the bank’s finance committee what took place at their meeting on October 8, 1900, regarding this note. Campbell was not present at the meeting, and so was not bound by what then took place. Had the' minutes of said meeting made any reference to the note, they might perhaps have been admitted as entries in books of the bank regularly kept and made at the time, but even such entries would fail to prove that Campbell had agreed to an extension of time on the note, though they might bind the bank.

Some fault is found with the charge.

Speaking of the note and its endorsement, which was a guarantee of payment, the court said: “I say ‘endorsed or guaranteed,’ because for the purpose of this law suit, it is immaterial whether it be a simple, plain endorsement,- or a guarantee of payment of the note.”

No prejudice could have resulted from the remark, for the defendant did not deny his liability on the note, if th'e estoppel from the conduct of the bank in telling him the note was paid, was not established.

We find more difficulty in the following part of the charge:

“I further say to you that in order to find for the defendant it is not necessary that you should find that, as a matter of fact, he would have proceeded against .Campbell Brothers and made good his loss by reason of his obligation on said note prior to the bankruptcy of said firm. It is sufficient if you find that he had a legal right to so proceed against said firm, and that said firm had assets and property sufficient to cover his loss. ”

Taken by itself, at first reading it would seem that the court had intimated that the estoppel was complete, even though Campbell would not have acted upon the conduct of the bank, to his detriment. Such, of course, is not the law of estoppel. To work an estoppel there must be prejudice to the party setting up the estoppel, as well as fraud or bad faith, or their equivalent, gross negligence in the party to the estoppel.

But the clause quoted, if carefully examined, does not go the extent claimed. Whether Campbell would or would not have proceeded against his sons, had he paid the note on the day he went to the bank prepared to pay it, was a matter for him to determine after be had been there. The presumption is that he would have collected from bis sons, for they were then abundantly able to pay him and no contrary presumption arises from the mere relationship of the parties; but he was cut off by-the statement of the bank from taking any steps or even from considering what he would do. The language of the court, while unfortunate enough to bother a reviewing court, could not have misled the jury, when taken in connection with the balance of the charge, as to which no fault is found. The court intended, by the clause complained of, to tell the jury that it need not speculate as to what course Campbell would have pursued provided it found that he could have recouped himself, and in this the court was justified, there being no evidence that he would not-have proceeded against his sons and the presumption being that he would have taken steps to make them pay him.

There are no other claims of error and the judgment is affirmed.


text:
    RECOVERY UNDER. CONTRACT FOR. PURCHASE OF BRICK.
    Circuit Court of Cuyahoga County.
    The Darlington Brick & Mining Co. v. Bernard Schatzinger et al.

    Decided, February 9, 1905.

      Sales — Trade Terms — Warranty.
    In an order for “first quality brick” and “second quality brick” the words “first and second quality” are merely descriptive, and import no warranty.

      Weed c§ Meals, for plaintiff.
    P. Q. Kassulker and Carpenter, Young & Stocker, contra.

       Affirmed without opinion, Schatzinger v. Darlington Brick & Mining Co., 74 Ohio State, 441.

   Winci-i, J.; Marvin, J., and Vooriiebs, J.,

concur.

In the fall pf 1899, the Darlington Brick & Coal Company, which hereinafter will be called the coal company, owned a plant and was engaged in the manufacture of brick at Darlington, Pennsylvania. The company was contemplating selling out and Bernard Schatzinger visited the plant at that time, perhaps with a view of becoming interested in the business. He was and is a large operator in real estate in the city of Cleveland, engaged extensively in building houses, and was familiar with all materials entering into their construction.

At the works in Darlington he saw a large quantity of brick of various colors and grades, manufactured at said works and piled under a shed.

In the spring of 1900, the coal company having sold its works to other parties on March 28, made a proposition to one D, J. Kennedy, which he accepted, that he buy all the brick then on hand at its works, understood to be 520,000 all told, in stock, at an agreed price, and agreed to turn over to said Kennedy an order received from B. Schatzinger for 200,000 of the brick then in stock at $10.50 per M. f.o.b. cars, works.

No written order from Schatzinger was then in the hands of the coal company, but his agreement to take brick was reduced to writing and signed by Schatzinger April 2, 1900. This written agreement was for 200,000 of the different kinds of brick in about the number specified by schedule, at $13.85 per thousand, delivered on Schatzinger’s lot near the Boulevard and Lake View avenue, and Superior street, Cleveland, Ohio, on or before June 1, 1900, payment to be made as follows: the freight and hauling charges amounting to $3.35 per thousand, as delivered, and the balance of $10.50 per thousand to be paid by six months’ note, without interest, dated from the date of completion of delivery.

The schedule of brick ordered set forth a list of fifteen varieties, distinguished as to color and the number of each kind was given and varied from about 1,500 of the smallest lot to about 40,000 the largest lot. The first four lots, about' 50,000, were designated, “Second quality,” and the remainder, “First quality. ’ ’

On the back of this order signed by Schatzinger was endorsed the following:

“April 4. 1900. I hereby agree to fill the within order of B. Schatzinger as near as possible out of the brick now in stock at works of the Darlington Brick & Coal Company, provided said company will he responsible, for and assume the payment of freight and cartage, the same not to exceed $3.35 per M', and if same exceeds that amount said Co. will stand the excess and provided all of said brick may be shipped in April or in April and May at my option.
“(Signed) D. J. Kennedy.
“We hereby agree to the above.
“The Darlington Brick & Coal Co.,
“By C. C. Young, Us Attorney.”

It appears that in these transactions said D. J. Kennedy was acting in behalf of himself and others who subsequently became incorporated as the Darlington Brick & Mining Company, hereinafter called the mining company, and which company made shipment of brick hereafter mentioned, and is plaintiff in this action.

A copy of the endorsement to Kennedy on the back of Schatzinger’s agreement was mailed to the latter on April 11, 1900, and received by him the next day; shipment of brick to him followed, commencing April 14, 1900, twenty-three car loads being delivered before June 1, and three car loads being delivered June 13, and one ear, final shipment, being delivered June 15, 1900, invoices being mailed him by the mining company. Schatzinger indicated to the drivers where he wanted these brick delivered, and it appears from his own testimony that he inspected the brick from time to time as they were delivered. The evidence also shows that Schatzinger never made any complaint as to the quality of the brick to either the coal company, the mining company or D. J. Kennedy, until June 27, 1900, when he wrote the mining company saying he was not aware of having ordered brick from it or through it; that the brick was subject to its order and that he would not deal with said company under any circumstances. While nothing was said in this letter as to the quality of the brick, on the same day he wrote the coal company that he would not accept the brick, because it had failed to deliver the kind and quality ordered. •

Thereupon the mining company brought its action in equity, as the assignee of a part of the claim for the brick furnished, against Schatzinger, claiming the sum of $10.35 per thousand for said brick and made the coal company party defendant, which filed a cross-petition asking judgment against Schatzinger for $3.50 per thousand, the freight charges paid by it on said brick.

By answer to the second amended petition, Schatzinger alleges that no part of the brick he contracted for were ever delivered to him; that the brick delivered were of an inferior quality and he refused to accept them and so notified both the coal and the mining companies at once; that he never consented to any assignméiit óf partial assignment of his contract to the plaintiff; that time was of the' essence of the contract and the brick were not delivered On time.

¡By- answer to the cross-petition'of the coal company Schatzinger makes practically the same- defenses and further makes counter-claim for damages sustained by him for breach of express warranties contained in his agreement, which he says appears by the use of the words “first quality” and “second qfiaiity” therein contained.

The questions of law thus submitted to the court for its determination’ are:

First.'1 Can plaintiff maintain an action in equity for part of the amount Schatzinger agreed to pay for the brick and thus deprive him of the right to submit his defense to a jury ?

■'-This question we answered in the affirmative in an error case between the same parties brought here to test that question alone, and it is unnecessary to give further reasons for so holding. It is sufficient to state that plaintiff could not sue at law on an assignment of part of the claim, and its only remedy is in equity.

Second. Do the words “fmst quality” and “second quality” used in Schatzinger’s order for brick amount to an express warranty, of are they only descriptive of the kind of brick ordered?

This question is perhaps a mixed one of law and fact.

The testimony is unanimous that in the'brick trade “first quality” means brick, of whatever make or kind, with at least one even face, with straight edges, and one end of the same character ¡“second quality” means the same as “first quality,” except the’ edges may be chipped.

Following the Supreme Court in its decision of the case of Bowman v. Anderson, 70 O. S., 16, we hold these words are merely déscríptive 'of the brick and import no warranty. In the Eówfuañ case the order was for ten caidoads of number one, select and common poplar lumber, and the words “ select and common-” indicating the grade of the lumber, were held to be merely' descriptive.

As to the qiiestions of fact to be determined, we shall make no- Toñg- íefereh'c'e to' the evidence adduced. While Mr. Sehatzinger’s testimony tends to sustain his contentions, it is contradicted on every material proposition and very largely by Ms own conduct. We think much of this contradiction arises from, a misapprehension on the part of Mr. Schatzinger as to Ms legal rights under the circumstances of this case, and his obligations to the other parties.

Without further comment it is sufficient to say:

First. We find that time was not of the essence of this contract.

Second. We find that there was substantial delivery, according to the contract, of all the brick, of the kind and quality mentioned in the order. There may be a deduction for a shortage of 166 brick and 4,700 brick, third quality, in the last shipment.

Third. We find that the defendant, Schatzinger, accepted the brick in compliance with his order.

As the holding of this court that the order for brick contains no express warranty which will survive the acceptance of the brick may not be acquiesced in and a finding of facts may be desired, it is proper at this time to say, in explanation of the second finding of fact, that it is made for that reason and that we are, of the opinion that the preponderance of the evidence is entirely to the effect that the quality of the brick delivered was as scheduled in order.

Decree may be drawn as indicated.


text:
    A THREE CORNERED SUIT — TOO COMPLICATED FOR. A JURY.
    Circuit Court of Cuyahoga County.
    The Darlington Brick & Mining Company v. Bernard Schatzinger et al.
    Decided, February, 1905.

      Equity Jurisdiction — Inadequacy of Legal Remedies.

    Where A orders merchandise of B who has already sold his entire stock to C, and B assigns the order to C who assumes and fills it upon the guaranty of B that he will pay the freight and drayage, which is done, and A refuses to pay for the goods; in an action by C for the purchase price in which A and B are made defendants, B files a cross-petition asking for judgment against A for the amount of the freight and drayage, and A files a cross-petition asking judgment against B for breach of contract, the rights of parties are so involved as to make a jury trial impossible.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

Motions filed in these cases practically amount to an application for rehearing of an error case growing out of the same litigation in which we held that the defendant Sehatzinger, was properly denied a jury in the court below.

Whether or not we were right in such ruling is a close question, but we have decided to adhere to it.

There is no question that only under the principles of equity jurisdiction could the plaintiff maintain an action against the defendant Sehatzinger, on the claim set up in the petition. Railway Co. v. Volkert, 58 O. S., 362.

But, it is said, that although this case involves the application of principles which are of equitable origin and nature, the action is for money only, not requiring a decree granting some mode of equitable relief, and therefore the defendant Sehatzinger was entitled to a jury in the common pleas court. Lange v. Lange, 69 O. S., 346.

We have come to the conclusion, however, that this was not an action for money only; that the pleadings presented such a three cornered law-suit that it could not possibly have been tried to a jury; that the rules governing jury trials would have prevented the working out of the equities which we conceive underlie this law-suit.

There is no question that whether a case is to be tried to a jury or by the court does not depend upon the principles upon which relief is asked, but upon the nature and character of the relief sought. Gunsaullus, Admr., v. Pettit, Admr., 46 O. S., 27.

blow stood the pleadings when the ease came on for trial? Plaintiff, by partial assignment from the defendant coal company, claimed due him from defendant Sehátzinger the sum of $2,100 under a contract between Sehátzinger and the coal company which plaintiff claimed to have carried out in part. Plaintiff also claimed to recover the same amount from the defendant coal company under an entirely different contract between plaintiff and it, if plaintiff failed to recover of defendant Sehátzinger.

The defendant .coal company claimed to recover $670 of Sehátzinger under its contract with him.

Defendant Sehátzinger denied the right of either plaintiff or the coal company to recover from him, and cross-petitioned, asked judgment against the coal company for $2,500 damages, for breach of its contract with him. He had no contract with the plaintiff.

Suppose under these pleadings the proof had shown Schatzinger entitled on his cross-petition to judgment against the coal company for, say $1,000 damages.

Then could a jury say that plaintiff should have judgment against Sehátzinger for $1,770 and against the coal company for $330? How about the contract between plaintiff and the coal company? Had plaintiff so carried out the contract as to entitle him to such judgment?

We take it. that such adjustment of the equities arising from separate and independent contracts could only be arranged by a chancellor. The machinery of a jury trial could not work it out. Indeed, had the action been triable to a jury, the demurrer that separate causes of action against several defendants were improperly joined should have been sustained. That ground of demurrer, as provided by Section 5061-8, is applicable particularly to the trial of jury cases. It was not applicable to the case at bar, if tried to the court, because all the parties in any way involved were property before the court for a final determination, in one suit, of the entire controversy, and the settlement, upon equitable principles, of the rights and obligations of all. And so, said demurrer was properly overruled.

As said by Judge Shauck in the case of Bricker v. Elliolt, 55 O. S., 577, 580, a prolific source of equitable jurisdiction is the inadequacy of legal remedies, and upon that ground we base our conclusion that the case at liar ivas appealable.

Motions overruled.


text:
    ACCOUNTING REQUIRED FROM PURCHASER.
    Circuit Court of Cuyahoga County.
    Cornelius Newkirk v. F. L. Hattendorf.
    Decided, March 6, 1905.

      Fraudulent Conveyances — Deed Absolute Given by Debtor to Creditor— When Treated as Mortgage.

    When a deed absolute in form was given by a debtor who was execution proof, to a creditor whose claim amounted to only a small portion of the value of the land deeded, the conveyance will be regarded as a security and treated in equity as a mortgage and not as a sale.

      W. J. Pal ter son, for plaintiff.

      A. W. Gibbons, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

In this case we are asked to find that a deed, absolute on its face, is a mortgage, and we have considered the evidence under guidance of the rule laid down by the Supreme Court in the case of Boughman v. Boughman, 69 O. S., 273, where it is said that '“equity requires that parol evidence to ingraft an express trust in lands upon a deed absolute shall clearly and convincingly áhow that contemporaneously with the execution of the deed the terms of the trust were declared. ’ ’

We start with the conceded fact that at the time of the execution of the deed in question the plaintiff was indebted to the defendant in the sum of $75, for which he had given the defendant his note. The consideration named in the deed is “$75 and other valuable considerations.”

Plaintiff says that the other valuable consideration was credit for groceries to be furnished by defendant who kept a grocery store. It is conceded that after agreement to deliver the deed, groceries of the value of $15 were furnished by defendant to plaintiff. From this point on there is a conflict of testimony. Plaintiff says that at the delivery of the deed it was agreed between the parties that the same should be held by defendant as security for said pre-existing indebtedness of $75 and for such further groceries as plaintiff might become indebted for to defendant, in a reasonable amount, and, upon payment of said amount by plaintiff to defendant, the latter should reeonvey the premises to the plaintiff. Defendant says that the deed was without conditions and was delivered to him for the consideration of $90, $75 of which was the said pre-existing debt and $15 to be paid by him to plaintiff in groceries, which he has paid. It appears that plaintiff’s note held by the defendant was never returned to the former.

The conceded facts in the case are very nearly controlling as to how it should be decided and appear to bring it within the fourth paragraph of the syllabus of the case of Wilson v. Giddings, 28 O. S., 554:

“Where a deed absolute in form is accompanied as part, of the transaction, by a matter of conditions or defeasance, expressed in the conveyance or contained in a separate instrument, or exists in parol, whether the consideration be a pre-existing debt or present advance of money, if the relation of borrower and lender, debtor and creditor, exists between the parties, the conveyance will be regarded as a security, and treated in equity as a mortgage and not as a sale, either absolute or conditional.”

Clearly in this ease the relation of debtor and creditor existed between the parties and further facts shown in evidence tend to substantiate the plaintiff’s claim.

The witness, Charles Millington, testified to an admission made by the defendant to him that the plaintiff had deeded the lot upon the agreement claimed. This admission was made by defendant upon an occasion after delivery of the deed when the witness went to defendant’s store to get groceries for the plaintiff.

The consideration defendant claims to have paid for the lot is grossly inadequate, for we find from the evidence of credible witnesses that at the time the deed was delivered the premises were worth about three times $90.

The situation of the plaintiff at the time and the surrounding circumstances lend color to his claim. lie was much involved financially; this cheap lot was the only unincumbered property he owned; he was execution proof, for this lot could not have been taken from him by the defendant, by legal proceedings, in satisfaction of his debt. Is it reasonable to suppose that under such circumstances, in great need of credit upon which to obtain the necessaries of life, he voluntarily conveyed this lot to defendant in satisfaction of a. debt, the payment of which does not appear to have been pressed by defendant? We think not.

It appearing that defendant has sold the lot for what is conceded to be its reasonable value, he must account to plaintiff for the proceeds of such sale, after deducting therefrom said sum of $90 with interest and taxes and other legitmate charges paid by the defendant.

Decree for plaintiff.


text:
    ACTION COGNIZABLE IN EQUITY.
    Circuit Court of Cuyahoga County.
    Wm. A. Eckerman et al v. Peter H. Hensch et al.
    Decided, March 28, 1905.

      Equity Jurisdiction, May Not he Involved Where there is Another Adequate Remedy.

    Where plaintiff and defendant make a contract, whereby defendant who is the owner of a secret process or formula sells the plaintiff a two-thirds interest in the formula, deposits the formula in escrow, and agrees that upon the formation of corporation to manufacture goods by that process the formula is to be delivered to the secretary oí the corporation, upon the abandonment of his contract by the defendant the plaintiff is not entitled to equitable relief and the appointment of a receiver to secure the formula,- as that may be done by perfecting the corporation as provided in the contract.

      T. A. Closse and Weed é Miller, for plaintiff in error.

      Goulder, Holding if; Hasten and Henderson, Quail é¡ Siddall, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

The contention of the parties is before this court both on appeal from and error to the comm'on pleas court. Of course, if the appeal is well taken, the judgment of the common pleas court is thereby vacated, and the proceedings in error should be dismissed.

We hold that this action is cognizable in equity and the error case is therefore dismissed.

It appears from the petition that the defendants, Peter IT. ITenseh and Annie ITensch, were the owners of a formula or secret process for the manufacture of a certain food product, and engaged in its manufacture and sale, and on October 14, 1903, entered into an agreement with the plaintiffs whereby said defendants conveyed to plaintiffs a two-thirds undivided interest in said formula and the good will of the business of making and vending said food product. . The contract provided that said plaintiffs should advance the sum of $1,000 to be used in continuing the business for six months and should have the option, on or before the termination of said six months, of incorporating a company with an appropriate capital stock, to which corporation all parties to the contract agreed to convey their interest in the business and said formula, in exchange for sixty per cent, of the stock of said corporation; said sixty per cent, of the stock to be divided one-third to said defendants and two-thirds to plaintiffs.

Plaintiffs further agreed that if said option was exercised by them and said corporation formed, the corporation should enter into a contract with said ITensch and his wife to employ the former for the term of his natural life at a weekly salary of fifteen dollars, and that said Henseh should devote his entire time, attention and skill, exclusively, in the employ of said company, and in event of the death of said Peter IT. Henseh, his wife Annie Henseh still living, she should enter the employ of said company at a salary to be agreed upon and devote her entire time and attention to its business.

The following provisions of the contract are also essential to a determination of this suit:

“To secure said assignments and benefits thereof to party of second part (plaintiffs) the said party of the first part (defendants) further agree to write out said formula, together with full directions for the making of said nourishing meal, and deposit the same in a sealed envelope with the Central Trust Company, trustee, said written formula and directions to be disposed of as hereinafter set forth.
“In the event of disability by death, or otherwise, or upon the refusal of either of said individuals herein designated as party of the first part to superintend the manufacture of said meal, or upon their failure to comply with the letter and spirit of said contract, then the formula and directions for the manufacture of said nourishing meal shall be delivered to the secretary of said company.”

The petition alleges that the parties entered upon the prosecution of said business which they continued for about four and a half months, the plaintiffs advancing money as agreed; all parties to the contract subscribed and acknowledge articles of incorporation of a company as agreed, took the preliminary steps provided by law for the organization of said company and called upon said defendants to carry out their part of the contract, but on March 1, 1904, said defendants abandoned said contract and refused in any way to assist plaintiffs, or give their time to the manufacture of said nourishing meal.

The petition alleges that the formula was written out by defendants and deposited with full directions in a sealed envelope with the trust company.

Plaintiffs allege that by reason of the breach of said contract by defendants the plaintiffs have been put to expense and a large loss of time, whereby they have been damaged in the sum of $1,000.

No personal judgment is asked for these damages, but the petition prays for the appointment of a receiver to take charge of the assets and good-will of the business with authority to take possession of said formula and to run the business; that an accounting be had and that said property and good-will be sold and the proceeds distributed in accordance with law; that said defendants be enjoined from making and vending said nourishing meal and from using the trade name thereof, and for such other and further relief as may be jüst and proper.

An answer filed by the ITenschs, admitting the material allegations of the petition, denies that plaintiffs suffered any damages by reason of defendant’s breach of contract. It sets up title to said formula in a third person — whom they ask to be made party defendant — whereby they are unable to perform the stipulations of the contract, and further pleads that said contract is null and void, being contrary to public policy.

Upon the trial objection was made to the introduction of any evidence under the petition, but evidence was received, a ruling upon said objection being reserved.

In the argument counsel for plaintiff urged that the court has jurisdiction, under the petition, to determine the amount of plaintiffs’ damages resulting from the breach of the contract and to order a sale of said Chadwickian security on deposit with the trust company to satisfy said damages; that the action is in effect for the foreclosure of an equitable lien which it is claimed plaintiffs have upon said so-called security.

We think a careful reading of the contract shows that no such relief can be granted under the allegations of the petition, for the contract itself provides the remedy upon the refusal of ITensch to render the personal services he contracted to render.

The contract specifically provides that upon such failure “the formula and directions for the manufacture of said nourishing meal shall be delivered to the secretary of said company.” At the time of the breach the company was incorporated; by the terms of the contract plaintiffs were then the owners of a two-thirds interest in the formula and business, and, by reason of the promise in the contract for the benefit of the corporation, the latter was the equitable owner of the entire formula and business. Plaintiffs should have gone ahead with the corporation, issued sixty per cent, of said stock in payment for said formula and business, forty per cent, belonging to themselves, elected a secretary and had the secretary demand the delivery to him of the sealed envelope by the trust company.

The action of said defendants in nowise interfered with or delayed the complete organization of the company; only ten per cent, of the stock is required to be subscribed, and plaintiff’s share in the business paid for that four times over. Ten per cent, being subscribed and paid in, plaintiffs were in position to elect a secretary of the corporation, under the law, and demand the sealed envelope of the trust company, and it was the duty of plaintiffs to proceed as stipulated in the contract.

Taking this view of the case, it follows that plaintiffs have misconceived their remedy and the demurrer to the evidence should have been sustained. Without considering other objections to the petition urged by counsel for defendant, the petition is dismissed.


text:
    BENEFICIARIES REQUIRED TO PROVE KNOWLEDGE OF TERMS OF TRUST.
    Circuit Court of Cuyahoga County.
    Benjamin S. Cogswell v. Elenor H. Seymour.
    Decided, March 28, 1905.

      Trusts and Trustees — Cestui May Not Claim Trust Property Sold to Third Parties ~Without Notice of Terms of Trust.

    When one receives a deed to certain real estate “in trust,” without any explanations in the deed itself as to terms and conditions of the trust, and later sells and conveys the property to a third person those who claim to have been the beneficiaries of the trust • have no interest in the property in the absence of any evidence showing that the purchasers had knowledge of the terms of the trust or that the trustee failed to account for the proceeds.

      A. A. Stearns, for plaintiff.

      Squire, Sanders & Dempsey, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

These two cases are separate appeals by different parties from the same judgment of the common pleas court.

A consideration of the case requires the investigation of a very involved title to certain real estate known as block YY in the Buffalo Company’s purchases, so-called, formerly in Ohio City, but now in Cleveland.

An exhaustive and carefully prepared opinion was announced by the learned judge who first tried the case in the common pleas court, but as we reach the same results he did, it is unnecessary to do more than give our reasons why we think his conclusions are correct.

The defendant Seymour claims title to the whole of said block tinder a deed executed and delivered to one Richards pursuant to an order of the Common Pleas Court of Cuyahoga County issued in a proceeding for the foreclosure of a second mortgage upon said premises, to which certain first mortgagees of undivided interests therein were not made parties.

The report of said sale is that the land was sold to said Richards “in trust” and by virtue of the trust so created the plaintiff, Cogswell, claims an equitable interest in said land.

It appears that Richards, one Benjamin F. Tyler and some six others were plaintiffs in said foreclosure proceeding, said Tyler having been the owner of a one-ninth interest in said land before it was deeded to the mortgagee, Francis G. Macey, and of the purchase money mortgage given by the mortgagor and foreclosed in the proceeding mentioned, and was therefore entitled to a one-nintli interest in the proceeds of said mortgage. Evidence was introduced tending to establish the fact that when Richards bid in the property he was acting for the benefit of all the mortgagees, including Tyler, and by taking title to himself in trust, became trustee for Tyler for said one-ninth interest in the land. Said Tyler interest, by virtue of certain proceedings shown in evidence, finally became the property of the plaintiff. But the terms of the trust upon which Richards held title for the benefit of his co-mortgagee, were not disclosed by the evidence introduced at the trial. The most reasonable supposition as to said terms, and the one indulsed in by counsel for all parties to the case, is that Richards took title to said land for the purpose of holding it until he could make an advantageous sale of the premises and then to account for the proceeds thereof to his co-mortgagees, lie did sell the premises to Seymour’s predecessor in title, but there is no evidence showing that he failed to account for the proceeds of his sale, or that the purchaser knew of the terms of the trust upon which he held title.

For the reasons stated by Judge Lawrence of the common pleas court it is apparent that plaintiff has failed to prove that he is entitled to an equitable interest in the premises.

Plaintiff’s assertion of a legal interest in the land need not be considered at any length. We think that by virtue of said Benjamin F. Tyler being a party plaintiff to the foreclosure suit mentioned, all rights that he had in the land became merged in the decree rendered in said case and passed to the purchaser at the sale therein ordered.

The only claim of the defendant Russell entitled to consideration is that derived from a sale ordered in certain proceedings brought by one Charles M. Giddings for the foreclosure of a mortgage given him by one Pratt and John B. Macey on a two-twelfths undivided interest in said block YY and a large amount of other property. This mortgage was, prior to the- Francis G. Macey mortgage on the whole of block YY, foreclosed as above mentioned, and after Giddings brought his suit certain partition proceedings having been had among the Giddings’ mortgagors and Pratt’s interest having passed to one Gilman Folsom, Jr., and the Frances G. Macey mortgage being in decree which ordered the sale of the whole of block YY, Giddings filed an amended bill, making Richards and all others in interest parties thereto and therein asked for the sale of the lots aparted and conveyed in severalty to said Gilman Folsom, Jr., and also the lots aparted and conveyed to said John B. Macey, together with the two-ninths interest in common belonging to said Folsom and John B. Macey in certain other lots not partitioned, showing that their original twelfths interest had become ninths, and the two-ninths interest of said Folsom and J. B. Macey in the Francis G. Macey mortgage and decree of block YY. It will be noticed that this amended bill did not ask for the sale of two-ninths undivided interest in block YY, but only of a two-ninths interest in the Francis G. Macey mortgage on the whole of said lot, and in the decree'foreclosing said mortgage and the proceeds thereof. Doubtless Giddings anticipated that two-ninths of the proceeds of the sale of an undivided interest in said block would pay his claim. At any rate, he completely abandoned the prayer of his original bill, and by his amended bill clearly indicated that he desired to be subrogated from his claim on the two-ninths interest in the fee of block YY to said two-niths interest in the Francis G. Macey mortgage and decree. His notice to Richards and other parties brought into the suit by publication, also indicates this intention.

But the final decree rendered in this case is so indefinitely worded that it is not remarkable that many years afterward the defendant Russell sets up a claim that-by the decree a sale was ordered not only of said interest in the mortgage and decree, but also of the fee itself. It is a fact that the officer making the sale reported a sale of both and attempted to deed both to Russell’s predecessor in title, but, after a careful study of this ambiguous order, a fair interpretation of the words^ of the decree themselves leads to the conclusion that the court intended to order a sale of the mortgage and decree and not a sale of the land itself.

In this conclusion we go farther than the court below, but every argument that court uses to show the invalidity of the decree, such as this decree is claimed to be by defendant Russell, leads alike to the conclusion, the language of the decree being doubtful, that the court ordering the sale of the mortgage and decree did not intend to order a sale of the land itself.

It may be added that by no interpretation of the pleadings could a case be made out authorizing the sale of both the mortgage and decree and the land itself, and if, in reading it, we are to leave out any words, surely we should not leave out words which are intelligible only by a reference to the amended bill and go back, for authority upon which to base the decree, to the original bill, the prayer of which was entirely abandoned when the new bill was filed and under which no substantial relief could ever have been granted, because of lack of parties defendant thereto.

Having arrived at this conclusion, it follows that defendant Russell derives no legal title to any interest in said land by virtue of said official deed made in the proceedings referred to.

Should we be wrong in this conclusion, we think any such claim is barred by the statutes of limitation. At the date of the official deed to Russell, 1847, Richards was in possession of all the premises under his deed. It can not be said that he ceased to hold adversely and thereafter held as a joint tenant with Russell. There is no evidence to that effect and the presumption is against his voluntarily letting into the possession with him a person who certainly claimed adversely to him to the extent of a two-ninths undivided interest in the land. The petition in this case was not filed until 1872 and Richards received his deed and apparently went into possession in 1884, some twenty-eight years before.

As to the equitable interest in this land claimed by defendant Russell, the facts are similar to such claim by plaintiff, and for like reasons we hold against it. The petition of the plaintiff and the cross-petition of the defendant Russell are dismissed.


author: Winch, J.; ITenry, J., and Marvin, J.,

text:
    LIABILITY OF HEIRS FOR TAXES ON DECEDENT’S PROPERTY.
    Circuit Court of Cuyahoga County.
    Dorr E. Warner, Administrator, v. Alice S. M. York et al.

    Decided, May 29, 1905.

      Taxes on Real Estate Accruing After Death of Owner, a Debt of TIis Heirs — Administrator Who Has Paid Taxes May Recoup from, Funds Belonging to the Heirs.

    1. Taxes upon real estate accruing after the death of the owner are a personal debt of the heirs and where they have been paid by an administrator, he is entitled to retain the amount from funds in his hands belonging to the heirs.
    2. Where an administrator is sued by the heirs of a decedent for rentals from real estate collected by him subsequent to the death of the decedent and it appears that the real estate in question has been sold by order of court and the administrator directed to pay the taxes thereon accrued after decedent’s death from the proceeds, he is entitled to set off the amount of such payment against the claim of the heirs for the rentals of the real estate collected by him.

      Cary, Stearns •■<& Chamberlain, for plaintiff in error.

      Wm. M. Reynolds, contra.

       Affirmed, without opinion, York et al v. Warner, Admr., 75 Ohio State, 595.

   Winch, J.; ITenry, J., and Marvin, J.,

concur.

Plaintiff in error was defendant below, and complains of a judgment rendered against him in the common pleas court for some $400 and interest, which it appears he collected as rent of property formerly belonging to his decedent, but accruing after the death of his intestate.

Defendants in error, plaintiffs below, as heirs of said intestate, claimed that said rents belonged to them.

Plaintiff below answered, admitting that said rents came into his hands as claimed, .but pleaded, as an off-set, that subsequently it became necessary for him as administrator as aforesaid, to begin proceedings for the sale of said real estate for the payment of his decedent’s debts; that he obtained judgment therefor and an order of sale directing him, among others things, from the proceeds of sale to pay the taxes, which were a lien upon said premises; that he complied with said order and so paid said taxes, thus expending about $2,000 in the payment of said taxes which accrued on'said premises after the death of said intestate and while the same were owned by said heirs.

The case was tried upon an agreed statement of facts and wre are of the opinion that the court erred in not allowing the administrator’s claim for taxes paid by him, as an offset.

That said taxes, accruing against the land after the heirs became the owners thereof, were a personal debt of said heirs, we think is settled by the case of Crepps v. Baird, 3 O. S., 277.

The administrator was compelled by said order of court, to pay said personal debt of said heirs and said order was lawful. Section 2854, Revised Statutes.

It seems that being so compelled to pay the debt of others, he should be allowed to recoup himself out of money belonging to them which he had in his hands at the time of such payment.

This view of the ease requires a reversal of the judgment rendered by the common pleas court.

It may also be suggested that the administrator having recovered a judgment in the probate court, for the sale of said lands, from the date of said judgment had a judgment lien upon the premises. Having such lien, he paid said taxes. Section 2853, Revised Statutes, provides that any person having a lien upon real estate may pay the taxes thereon, in so far as the same are a lien upon such real estate and recover the money so paid by action for money paid to his use, against the person or persons legally liable for the payment of such taxes.

While we do not base our decision upon said statute, considering the reason first given sufficient, we think that the policy of the law clearly requires a reversal of the judgment, which is ordered, and the case is remanded for further proceedings.