text:
    (Sixth Circuit — Lucas Co., O., Circuit Court,
    January Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    JOHN M. STUMP v. WILLIAM FRARY ET AL.

      Part of wages exempt from execution, applied by husband to pay off debt on house of wife, can not be subjected by his creditors.

    Where a working man,having a family, whose wages are exempt from execution, regularly every month pays to his wife part of the same saved by him, to be by her applied to the payment for a house, the title to which stands in her name, the interest so acquired by him in such house can not be subjected.'by his creditors to the payment of their claims.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

This was an action brought by John M. Stump, and is in the nature of a creditors’ bill, to enforce a judgment which' he recovered against the defendant, William Frary; and he avers that there is a lot — lot No. 13, Fassett’s Third Addition to the city of Toledo, in which the defendant, William Frary, has some interest, but that he has put the property in the name of his wife, for the purpose of either delaying his creditors, or else in trust for himself. The facts show that Frary is a man who works for an oil company upon the other side of the river. He appears to be an industrious, hardworking man, so far as appearance indicate, and receives fifty or sixty dollars per month. He has a family. And it further appears that he had purchased a lot and undertook to get him ahorne; and, after keeping it a while, he traded it for the present lot and took it subject to a large mortgage in favor of a loan company in this city, which had been originally made by Mr. Caldwell.

It appears that the husband has, from time to time, .out of his earnings, made some payments upon the first mentioned premises, all that has been paid upon the latter premises being paid to the loan company, upon said mortgage, which payments amounted to seven dollars and a half every two weeks, or half of that sum weekly, but he paid it every two weeks. It further appears that Frary had at one time borrowed, from an uncle of his wife, $200, upon which, after it had run along for some time, he had paid the sum of $50, leaving $150 yet due. Thereupon the uncle gave the property to Frary’s wife, as hers, to do with it what she chose; and she has held it, and it seems, from the evidence, that there has been a rather implied understanding that the payments made upon the land should also be a cancellation of this note. However, that is not very distinctly proved, and is, perhaps, rather a matter of inference than of actual proof; but it is in proof that she owns the note, and holds it, and that it is in her own right, and is due to her from her husband.

And on this state of facts, so far as the note is concerned, if money had been paid in upon this lot, and other creditors seek to subject the lot or the money to the payment of Frary’s debt, they cannot cut Mrs. Frary off from the right to offset the amount-of her note; or in other words,apply it in cancellation of her claim. As between herself and her husband, the husband being the debtor, if he made a claim against her for money that has been paid upon the lot she can offset this note.

E. D. Davis, for Plaintiff.

D. E. Thomas, for Defendant.

But, beyond that is the further fact, still more decisive of the question, that it appears very clear that the payments which have been made from time to time upon this property have been made out of the wages of Frary,and have been made from month to month out of the earnings of those months respectively, perhaps from the month previous. Now the statute of the state exempts from execution, or the subjecting to the payment of a judgment creditor, three months’ wages of a husband who has a family.and for that reason we hold that so far as he-makes these payments out of his monthly wages — out of property that is exempt from execution, or exempt from being subjected to the debts of the husband; that the creditors cannot complain; or, in other words, they cannot come in and say that this property is placed in the name of the wife either for the purpose of keeping it away from his creditors, or putting it in trust for himself. The fact is, that it is his under the law. He may spend it, give it to his wife or give it to anybody else; or he may put it into a home for his wife, and she has a right to hold it for all time, exempt from the claim of any creditor.

In this case there is a cross petition filed by the Building & Loan Association in which they set up the claim which they have and ask for a decree for foreclosure and sale and that their rights my be protected. The petition will be dismissed at plaintiff’s costs, and there may be entered in the decree whatever is necessary to protect the rights of the Building and Loan Association.


source: Caselaw Access Project

author: Swing, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1895.)
    Before Smith, Swing and Cox, JJ.
    McCABE v. HOOD.

      Drainage over other’s land — Easement—Gan not he enlarged hy beneficiary without consent of land owner.

    Where one land owner grants to the other the right to drain his land over that of the other, such easement can not afterwards be enlarged by the beneficiary by draining privy vaults over the other’s land which at the time was not contemplated by the parties.
   Swing, J.

Our construction of the deed and contract in controversy is that the right of drainage from the premises Nos. 43 43^ and 45 Baum street over the premises known as No. 90 Kilgore street, was Jimited by the terms of the grant to the purposes then existing, which was the drainage of water from said premises. The right to drain privy vaults did not exist at that time. Such a right not having existed then, under the terms of the deed, cannot be imposed upon the premises now. This right to use sewage in the pipes, as now claimed by Hood, is a material enlargement of the grant, which was-not contemplated by the parties at the time, and was not included within its terms. There can be no material enlargement of an easement. The parties must be limited to matters contained in the deed. We think the drainage was limited to the drainage as it then existed, and the defendant should be restrained from draining his privy vaults into said drain.

Edward J. Dempssy, for plaintiff in error.

Mallon, Coffey & Mallon, contra.


author: Haynes, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan’y Term, 1895.)
    Before Haynes, Scribner and King, J J.
    THE LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY v. CATHERINE BRAZZILL, ADM’X OF THE ESTATE OF FRANK BRAZZILL, DECEASED.

      B. B. Crossings above grade of road — Approaches to track — What sufficient.

    Under Sec. 3324 Rev. Stat., which provides that R. R. Companies-f‘shall construct, or cause to be constructed and maintained at every point where any public street, lane, or highway, used by the public,crosses such railroad,safe and sufficient crossings,” where the grade of the R. R. track is higher than that of the road, the approaches need not be built by the railroad company so far on both sides of the crossing that there would be practically no. incline on the apporaches, so that the approaches are brought practically to a level with the railway crossing. They had a right to make inclines, and where the inclines as made by the railway-company in a safe and sufficient manner for all the ordinary and-regular purposes of travel, that is a sufficient compliance with, the statute.
   Haynes, J.

This is an action brought in the court of common pleas by the administratrix, to recover for the loss of the life of her-son, who was a fireman in the employ of the Lake Shore Railway Company,and was engaged upon what was’known as the “Boston Special” upon this particular occasion,and his death occurred at a point on the line of that road about three miles this side of Holland station, and under this state of facts:

The Boston special was coming towards Toledo, at about half-past four, p. m., a January afternoon, about four years ago. It came down near a crossing called the Angola crossing when the engineer discovered some person standing near the track and making signals known as danger signals. He was in the act of blowing the whistle for a crossing situated about eighty rods east of the Angola crossing and immediately commenced to stop his train. Looking ahead, he could see, in the shades of the early evening, that there were some persons moving about the track and that there was some substance appearing to be upon the track, but he could not distinguish what it was. He applied his air-brakes and took all the methods known to engineers to stop his train and as he approached the last named crossing it could be seen ahead that there was a log across the track,and as they went on and got near to the crossing, the engineer being then in the act of reversing his engine and stopping it, the fireman, of his own accord, stepped back to the side and jumped from-the locomotive, and as he jumped, as it appeared after-wards from the result — he struck a crossing fence' — apparently struck a post in which there was a nail, and struck the nail, and was so injured that he died within a few minutes afterward.

The original action which was brought, set out for a cause of action that the engineer was negligent in that he failed to stop his train within the time in which he might have done so by the use of reasonable diligence, and that if he had used reasonable care and diligence he would have stopped the train prior tc the time that it arrived where the log was, or where the fireman jumped. Upon the trial of the case in the common pleas upon that petition, a judgment was rendered in favor of the plaintiff for a thousand dollars and against the railroad company; and, upon a motion made by the plaintiff in error here to the court of common pleas, the court set aside that verdict, for the reason, as appears from the records, which have been read in our presence, that there was nothing in the evidence in the case that showed that there was any negligence upon the part of the engineer; in short, that the engineer had acted like a prudent man,and had done all that he could do to stop his engine before it arrived at this crossing.

Thereupon the ease rested some little time in the court of common pleas, but subsequenlty an amended petition was filed — I think nearly two years after the suit was brought— wherein, in addition to the original cause of action which was set up, it was alleged that at this particular point the road crossing was insufficient and defective,and that by reason of the character of the crossing, the log had become stalled upon the track — or, to set it out a little more fully— they claimed that Mr. Champion, who was cutting timber in Adams township, was dragging logs or timber, to a place where he cut it up, at Holland station, and that in doing so the usual and ordinary rule would be to cross this track, which was known as the. crossing of the old Maumee road. They claim that the railway at that point -was in the neighborhood of three feet above the natural level of the road; and it was claimed that the rise in the road-bed from the natural level of the road to the crossing of the railroad was steep, abrupt and defective, in that it was not level or even, being, as it was claimed, a ridge on one side, or a rise,and it was said that Champion in drawing this log was using wbat is called a lizzard, or an old-fashioned stone-boat, and across that stoue-boat was a rest rising about two feet above the road, and on that had been placed one of these timbers or logs, which was somewhere about thirty inches in diameter and perhaps forty-four feet long, and around it had been thrown a chain which fastened it to the boat, and the other end of the log was allowed to drag io the mud or snow. There were attached to it three pair of horses. When they approached this crossing they put on another pair, making four pair, or eight horses. They proceeded and the boat crossed the first track and had got over to the north track, and at that point the rise would bring the log to where it would touch the ground, or perhaps touched the rail itself of the south line of the track, that is to say, the south rail of it. At that point the weight of the log by its situation was held suspended and thereupon they added the other team, and pulled until the chain broke, leaving the boat under the log on the south side of the railroad and the north end of the log had got to be so that it was a little over the north track. It was not shown from the evidence what chain it was that broke, but we think it is manifest, taking all things together and some inference that may be drawn, that the chain was around the log and fastened the log to the boat, because one witness speaks of detaching the horses from the boat afterwards. Upon the breaking of this chain the boat passed over to the north side of the tracks, leaving the log lying with the butt on the ground or on the south track, and the north end of the log being perhaps three or four feet across the north-bound track of the railroad. Mr. Champion knew that the train was expected soon, the Boston special to the east and without stopping evidently to see whether he could move the log arcuud or sling it around by hitching a team to it — for it was resting rather on a pivot— he came to the quick conclusion that it was his duty to proceed west along the railroad track and intercept the approaching train. And he proceeded until he' came to a point about eighty rods west to the Angola crossing where he stopped and when he saw the train approaching commenced to swing his hands to stop it. The engineer saw him and proceeded to stop the train. It will be observed that the engineer was standing upon the south side of the locomotive — the right hand side was his place and the east-bound track being northerly, it brought him with his right hand to the south track. The fireman was upon the opposite side. It has been suggested that the engineer did not see this man as soon as he ought or as soon as he should, but it should be observed that it was also the duty of the fireman to be on the look out for danger to see all persons who should hail the locomotive and give signals; but we think with the court below — for the testimony is substantially the same--that this engineer was not negligent. We think that be used all the resources at his command in a prompt and active manner to stop that train. We think the testimony shows that it was a very difficult thing to stop that train at the point where he was, between that point and the place where the log was lying. Indeed he did not stop this train. It came down and struck the log and sent it flying over into the ditch, breaking some of the spokes of the pilot but not otherwise injuring the locomotive, and the train stopped somewhere about two hundred feet beyond the crossing. He had been shown to be a/good engineer, and- the testimony of other engineers who were running the Boston express was taken showing that a stoppage could not have been made any sooner than it was. The testimony of some that were formerly engineers, but were rather super-annuated, was taken, showing that in their judgment the train might have stopped before it reached this point, but we think the jury were not authorized to base their verdict upon that testimony.

Now, coming to the state of the new petition, this amendment was made about two years afterwards, and while testimony is given in regard to the condition of the approaches, it substantially is given in regard to the condition of the approaches two years after this time. There was perhaps some general evidence in regard to the approaches before that time. Champion’s testimony is taken, and while he was the man who was drawing this log across and had control of it, he made no objection to the crossing, and did not testify on that subject.

Section 8324 Rev. Stat. provides that:

“A company or person having control or management of a railroad shall construct, or cause to be constructed and maintained * * * at every point where any public street, lane, or highway used by the public crosses such railroad, safe and sufficient crossings, ” etc.

Now, the theory of the counsel who argued this case in this court — and I may say argued it very fully and very ably and earnestly in behalf of the views which counsel entertained, was that these approaches should have been so constructed that while this log was being drawn (because they assume that Champion had a right to draw exactly in the manner in which it was drawn), when they came to this approach, as the boat passed over it and came to the other side, the approaches should have beeu so constructed that the log would not have rested upon the railroad track; because, it was argued and admitted, that when the log touched the south-bound track it came down and they were unable to draw it further, and thereupon it remained there. I do not think that this is proved by the evidence. I think that when there came a little strain upon the log and the horses were required to pull, that they in pulling raised the rear end and that the chain broke. There was no evidence to show what kind of a chain this was, a large or a small chain, that held the log, but is seems to have been insufficient for its purpose. But, coming to the theory of counsel, they, as I have said, claimed that when this log was being drawn in this manner the approaches should have been such that the log would have passed over them without this friction; in 3hort, the claim must be, though it was not said in so many words, but is the result of their argument and of their claim, that the approaches should have been built by the railroad company so far to the north and south of the crossing that there would have been practically no incline on the approaches; that they should have brought the approaches practically to a level with the railway crossing. We do not think that that is a fair and just construction of the statute. We think that they had a right to make the inclines, and we think that the inclines were made by the railway company in a safe and sufficient manner for all the ordinary and regular purposes of travel. We thmk that there would have been no difficulty in regard to this log if these parties had taken a little pains to have performed their business in a careful and prudent manner. I do not know that they could have drawn the logs better if they had not been drawn top foremost, but to the members of this court it would seem so. "We are unable to say how that is. However, they had a log the butt of which was four inches at least thicker than the top, tapering, and considerably heavier at the butt, and when they come to balance it the butt end is ghng to weigh down the top, sled and all, and it would seem to us that as a matter of prudence, persons drawing that log should have put a sled under the rear end also, both for the purpose of ease in drawing and in sliding it up, so that when it went over this road there would have been no friction; and we think that if there has been any carelessness in this matter at all, it has been on the part of Champion — in the manner in which he got that log upon the track, and the manner m which he was driving and came there at that time. But, without passing upon that question, we are clearly of the opinion that there is not sufficient evidence to support either of the causes of action set forth in the petition. The judgment of the common pleas will therefore be reversed and the verdict set aside, and the case will be remanded to the court of common pleas for further proceedings.

E. D. Potter, Jr., for Plaintiff in Error.

L. Wachenheimer, for Defendant in Error.


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan’y Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    CHAS. E. WORDEN v. DORA KLAG, et al.

      Suit on injunction bond — When not maintainable.

    Where the party was compelled to resort to a court of equity to obtain relief in regard to matters that could not be set up as a defense in an action brought against him, and until that question could be settled, the parties should remain jin the position in which they were at the time, an injunction is rightfully issued,and a suit on the injunction bond can not be maintained.

      Error to the Court of Common Pleas of Lucas County.
   Haynes, J.

This is a petition in error to reverse the judgment of the court of common pleas in an action which was brought by Worden against the Klags upon an injunction bond, which was given in a case filed in the court of common pleas, wherein Dora Klag was plaintiff and Charles E. Worden was defendant. The undertaking is in the form prescribed by the statute. It reads: “We bind ourselves to the said defendants in the sum of three hundred dollars, that the said plaintiff, Dora Klag, shall pay to the said defendant all damages he may sustain by reason of the injunction in this action, if it be finally decided that the said injunction ought not to have been granted ” Such proceedings were had in the last named action that judgment was rendered in favor of the defendants; the issue of fact in the case being, whether or not there had been a breach of the condition of that bond— whether it had ever been in effect decided that such injunction ought not to have been granted.

The original action of Dora Klag v. Charles E. Worden was brought by Dora Klag for the purpose of obtainings the rescission of certain deeds that had been made in certain exchanges of property between Worden and the Klags. She set out in substance that there had been an agreement entered into for the exchange of property, wherein Worden was to convey to her certain property in Fulton county, and she was to convey to Worden certain property in this county; that Worden was to pay her upon the property in this county the sum of four thousand dollars and odd dollars in cash. The deeds were made, and Dora Klag remained in possession of the property in Toledo. The controversy between them at that time was, as I understand it, that the Klags claimed that Worden was to pay $4,000 in cash, which they were to use in paying off liens upon the property, and to relieve them from any obligation upon this indebtedness. Worden claimed that he was to take tbe property subject to the liens, and was to pay them off, or arrange for them, as he might see fit. He, however, obligated himself to pay the liens upon the property. And therein they disagreed. In the petition it is alleged that there was fraud; the Klags aver that Worden had made representations as to the value of the property in Fulton county which were false, and were intended to mislead and to defraud the plaintiffs. But with this controversy or contention existing between them, Worden served a notice upon the Klags to quit the premises, and gave out that he was about to commence an action to recover that property by an action of forcible detainer. Thereupon the Klags began this suit that I have spoken of, and obtained an injunction to restrain Worden from interfering with the Klags’ possession of the property until the rights of the respective parties might be determined. That injunction was granted and the bond was given of which I have spoken. Ultimately that suit came to trial in the court of common pleas, and the court found that there never had been an agreement of minds between the Klags and Worden in regard to the trade or exchange of the property, and' it was ordered, adjudged and decreed, that upon the payment tc the clerk of this court on or before August 5, 1892, of all moneys and interest thereon expended by Charles E. Worden in connection with the Toledo property, together with the sum of $53 paid to plaintiff by him, and upon the execution and delivery to the said clerk of a quit-claim deed for the Delta property, executed by Anna Dora Klag, with the release of the mortgage given by her upon said property, then and in that event said Charles E. Worden is ordered to deliver to the clerk of this court a quit-claim deed for the Toledo property conveyed to him by the plaintiff. ” That is to say, there w'as to be a rescission of the contract; not precisely a rescission of the contract, because of the claim that their minds had never met, but a re-conveyance of the property. It will be observed as one of the peculiar things in this judgment, that there is no finding whatever of the amount of money that it was claimed that Worden had expended in connection with the Toledo property. That is left indefinite and uncertain, and a blank. He might claim one dollar, he might claim a million. The court then say:

“It is further ordered,adjudged,and decreed that the costs of this proceeding, taxed at $ — ,shall be paid by the defendant Charles E. Worden, for which execution shall issue.”

That judgment, so far as the costs are concerned, is absolute, ard is not changed in any wray or manner by other provisions. But it will be seen by the judgment down tc this point, that the court orders a re-conveyance of the property upon the payment by Mrs. Klag of the money that Wroden had expended upon the Klag property, the re-payment of the $53 that had been paid to Mrs. Klag, and a release of a mortgage that had been placed upon the property in Fulton county by Mrs. Klag after the deed was made to her; and that Worden should pay the costs of suit. The court then proceeds to make a further order and decree.

But it is further ordered and decreed by the court, that if the plaintiff shall fail to make re-payment to the said defendant Charles E. Worden, of the aforesaid sums of money so ordered to be repaid to him, and tender to him deed for said Delta property as aforesaid ordered, on or before said 5th day of August, A. D. 1892, then and in such event it is ordered and decreed that this case be dismissed at the costs of the plaintiff, and the possession of the part of said premises in the petition described now in the possession of the plaintiff be surrendered to the said defendant Charles E. Worden, and that an order for delivery of possession of the same issue to the sheriff of Lucas county, Ohio, in such behalf. ”

The record shows that this mortgage was not paid, and it further shows that a suit was brought against the parties by the Union Savings Bank to recover upon a mortgage upon the Klag property.

Now, we are clearly of the opinion that there can be no question whatever but that the plaintiff Dora Klag, was entitled to an injunction restraining Worden from interfering with her possession until there could be a decision of the case. It was simply a case where the party was compelled tc resort to a court of equity to obtain relief in regard to matters that could not be sot up as a defense in an action of detainer, and until that question could be settled, the parties should remain in the position in which they were at the time. And so the court issued an injunction, and it was rightfully issued, and .she was rightfully in possession until after the decision of the court; she was rightfully in possession after that time until the time had expired in which she was permitted to perform certain contracts which would entitle her to a re-deeding of the property to herself. For some reason which does not appear in the case here, she was unable to carry that out, and did not carry it out. Thereupon the plaintiff here would have been entitled to have had the property remain as it was. Whether the property was ever re-conveyed or not does not appear, but we take it from the statement that was made that it never was, because the Klag property was sold out, and nobody paid.

Without deciding some of the numerous questions that may be, raised in this class of cases, we are clearly of the opinion upon the face of these papers, that the plaintiff here has not shown that there was any condition of this bond broken. It is not decided, and ought not to be decided, that the injunction was improperly issued. We think, in short, that the plaintiff was entitled to the injunction until the decision of the case, and that there has been no breach of the condition of the bond.

A. W. Eckert, for Plaintiff in error.

Surd, Brumbaek & Thatcher, for Defendant in error.

Entertaining that view, the judgment of’the court of common pleas in this behalf will be affirmed.


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan’y Term, 1895).
    Before Haynes, Scribner and King, JJ.
    PARKER v. DAVIS.

      Sale of goods, tuhen complete and goods at risk of purchaser.

    Where in carrying out a contract for the sale of goods and chattels the inventory of the stock of goods had been made and the price had been fixed, as provided in the written contract, and all things provided in the contract to be done by the seller in reference to the goods except the delivery thereof had been done when the goods are destroyed by fire while the defendant was holding the property ready to deliver the same on being paid the purchase price thereof, including the money, notes and chattel mortgage to be paid and delivered oy the purchaser for the goods, and such fire and destruction was without the fault or negligence of the defendant, then the property was held at the risk of the purchaser.

      Same.

      % j.The payment of the money and the execution and delivery of the notes and mortgage for the balance of the purchase price of the property were acts to be done by the purchaser, and not by the seller, and the same were not necessary to be paid and done to cast the risk and loss of the property cn the purchaser, provided all things to be done by the seller in reference to the property had been done, and that he was holding the property ready to deliver the same on receipt of the money, notes and mortgage, at the time of loss and destruction of the property.
   Haynes, J.

A petition in error has been filed by Torence D. Parker against George H. Davis, to reverse the judgment of the court of.common pleas in an action wherein Davis was plaintiff and Parker defendant. The substance of the original action was this: Davis brought suit against Parker to recover the sum cf $1,000 which had been paid by Davis to Parker upon a certain contract for the sale of a stock of goods and the fixtures and appliances belonging to Parker, and which were situated in a certain building upon Monroe street. That building adjoined originally the Wheeler Opera House. After the making of this contract, and before its final completion, or at least before it was claimed it was finally completed, the west wall of the Opera House building was burned by a fire, or rather,the west wall was left standing after the fire, and at or about the time of the completion of the contract it fell upon the building containing the st^ekof goods, crushing the building, setting it on fire, and the stock of goods and fixtures was mainly consumed. The horses and wagons, and matters of that kind, of course, which were not contained in the store, were not destroyed. The defendant admitted the payment of the $1,000, but claimed that the contract of sale had been so far completed that the title of the property vested in the plaintiff below, Davis, and that the loss which occurred there was his loss; while on the other hand the plaintiff, Davis, claimed that the contract was an executory one, and bad never been fully completed, that the title to the goods had never vested in him, and that the loss by reason of the fire would, in law, and should, fall upon the defendant, Parker. The case was tried to a jury, and a verdict was rendered in favor of the plaintiff below fcr $1000, for which judgment was rendered. To reverse that judgment, this petition in error is prosecuted. Now, the facts of the case, somewhat in detail, are substantially these: On the 16th day of March, 1893, a written contract was entered into between Parker and Davis, which it will be proper that I should read, in order to understand the questions that are raised by counsel in the case.

“This agreement made and concluded this 16th day of March, A. D. 1893, by and between T. D. Parker, of the city of Toledo, Ohio, as party of the first part, and George H. Davis of the same place, as party of the second part, witnessed: That for and in consideration of $1,415, $1,000 of said sum in hand paid, the receipt whereof is hereby acknowledged, the said party of the first part has this day sold to the said party of the second part all of the fixtures belonging to and used in connection with, the grocery business of said party of the first part, situated at No. 412 Monroe street, in the said city of Toledo, Ohio, and including with said fixtures two horses, three sets of single harness, all used in carrying on the grocery business at said place, 412 Monroe street, Toledo, O. For a more definite description of said fixtures, horses, wagons and harness, see an inventory which is made a part of this.contract. ”

Perhaps I had better state here, that it is claimed on behalf of defendant in error that this contract was a divisible contract; that the nart which I have read now is a preliminary contract in regard to the articles therein mentioned, so far as to affect the title to.the property.

“In addition to the said sale of said fixtures, horses, wagons and harness, the said party of the first part has sold to the said party of the second part all the goods and chattels situated and being in .the store at number 412 Monroe street, Toledo, Ohio, said goods to be invoiced at the regular wholesale market price in Toledo, Ohio,for goods of the same kind, said prices to be determined as follows: The said T. D. Parker and George H. Davis are each to select one person of their own choice, who shall proceed to appraise said stock of goods, and in case said two persons so selected fail to agree on any article as to the value, said articles shall be laid aside until the whole stock has gone through, and all goods laid aside shall be then appraised by the said two appraisers and some other person of their own choice. Two of these three appraisers agreeing, shall fix and determine the price without appeal.

“When said stock has been appraised and the value determined as aforesaid, the amount of the invoice shall then be added to the said sum of $1,415, and if the combined sum for fixtures and stock shall not exceed the sum of $3,000, then the said party of the second part shall immediately pay the remainder of the amount for fixtures and stock in cash. It is understood and agreed that in case the combined sums for the said stock, fixtures, horses, wagons and harness, amount to more than $3,000, then the said party of the second part agrees to execute and deliver to the said party of the first part evidences of indebtedness secured by a chattel mortgage on said stock of goods, fixtures, horses, wagons and harness, due and payable by said party of the second part on or before ninety days from and after the date of their execution.

“That for and in consideration of the sale and delivery of the said fixtures, horses, wagons, harness and stock of goods aforesaid by the said T. D. Parker to the said party of the second part, the said party of the second part hereby agrees to purchase, and by these presents does purchase, all of said stock of goods, horses, wagons, harness and fixtures at the price and on the terms and conditions aforesaid,and agree to take and pay for all of them as aforesaid.

“It is further agreed that the said T, D. Parker hereby agrees not tc enter into the grocery or meat business in the city of Toledo, Ohio, for and during one year from the date thereof.

“It is agreed that the inventory of said stock shall be taken on or before the 20th of March, 1893, unless by mutual consent of both parties agreed otherwise. ”

It appears that they set a day for taking the inventory, which I believe was on a Sunday. The testimony further shows that that inventory was taken in pursuance of this contract, and was completed on the morning of Monday, the next day after they commenced, being the Monday on which the wall fell. It was finished and . completed in the morning; the wall fell about seven or half-past seven in the evening, perhaps seven. Upon the inventory and appraisal being completed, Davis, upon examination of it, found that it amounted to more than he had expected. Thereupon he stated to Mr. Parker that he did not like to mortgage his stock of goods for so large an amount, because it would affect his credit, and he proposed then that they should, select a portion of the goods out of the stock, which were to be placed in a certain room in the bui'ding, in the exclusive possession of Parker, and that Davis should receive credit upon the appraised value of the goods for the amount thus taken out; and he further proposed that for the residue of the inventory price over $3,000, that Parker should take a chattel mortgage upon the horses and fixtures, etc., and not upon the stock of goods. To that Parker assented. Thereupon they proceeded, during the day, tc make the selection ■of the goods that were to be set aside for Parker, and had •completed that about six o’clock in the evening — the goods had been selected and set aside, and placed in the room that had been designated for them. It had now become perhaps half-past six o’clock in the evening, and they then telephoned up to a certain office, as I understand the office of the party who had assisted in the negotiation, perhaps, who had drawn this contract, for a notary public to come down' and make a chattel mortgage or take an acknowledgment of it. A telephone message had been sent about three o’clock in the afternoon to the same place, and the notary had agreed to hold himself in readiness to comedown on call, but when he was telephoned in the evening the answer came from the office that he had shortly before left for home. Thereupon it was said that the drawing of the chattel mortgage and notes should be deferred until that morning,and to that Parker assented and the key remained in the possession of Parker. It was said, I believe, that Parker should retain the key, and he did so retain it, and locking the door they left. Soon after, the wall fell. The testimony shows that soon after, Parker was upon the ground, and also Mr. Davis. It is alleged that certain conversations occurred between the parties, wherein Parker had said to Davis that he should not lose anything, and that the loss would be his, etc. It appears that the day or the day after the fire, Mr. Parker proceeded to save such goods as had not been burned by the fire, and to put them in order, and that afterwards he made out proofs of loss upon the stock of goods, presented them to the insurance companies, who paid him for the losses that had occurred upon the stock. He also made out and presented proofs of loss upon the fixtures, but that proof was not admitted; at least it seems that there was nothing paid upon it. In these proofs of loss he stated that he had the property, but that it had been sold upon a contract to Davis —calling the attention of the insurance companies to the matter.

Parker says that he kept the horses and wagons, etc, for Davis during the summer, and was ready at any time to deliver them to him, and desired to do so. And he sets up in his answer, and upon the stand he claims himself, that the horses and fixtures, etc., were the property of Davis, so far at least as to cast the loss upon him.

The case has been argued very fully and very ably, and a very large number of authorities have been cited by eacd counsel in the case. Upon the trial of the case exceptions were taken to the admission of certain testimony, and upon the conclusion of the trial the defendant requested the court to give to the jury in charge certain requests which he then and there presented in writing, which the-court refused to do. The court proceeded to charge the jury, and to that charge and to the refusal to give the requests proffered, the defendant excepted.

Upon the record in this case we think the testimony clearly shows that on Monday morning — the Monday of which I have spoken — that the inventory had been made of these goods, and everything had been done under this contract, by Mr. Parker, that he was called upon to do; that it was then the duty of Mr. Davis, under the contract, to have presented to him a chattel mortgage upon the stock of goods and upon the fixtures and the horses and wagons,to secure the balance of the purchase money over and above the sum of $3,000, which was to be paid in cash.

It seems that Davis, finding that the invoice, as I have already stated, was larger than he had expected, requested that there should be a modification of the agreement so far that Mr. Parker should take a portion of the goods;'

Without going into any lengthy discussion of the law of the case, we are clearly of the opinion that it is substantially as is claimed by counsel for the plaintiff in error, Mr. Everett. We are of the opinion that the property in these goods had, or did pass, under this contract, to Davis, when this inventoryand appraisement was finished on the morn^ ing of this Monday; that if there was any modification made of this contract afterwards, any agreement to take bade any portion of the goods, as there was, that was made for the benefit of Mr. Davis as an exception to the contract for his relief. The testimony, we think, further shows that the whole of that part of the business of selecting and taking back the goods had been completed at six o’clock on Monday evening, and that at that hour the property in these goods vested in Mr. Davis, so as to make him liable foi any loss that might occur, or any loss that should occur, in the goods belonging to him.

The defendant below requested this charge of the court:

“That by the written contract between the parties the horses, wagons, harness and fixtures were purchased for $1,415, and the $1,000 was paid and applied on said purchase. That by said contract the purchase of said horses, wagons, harness and fixtures, was so far complete as to cast upen the purchaser the risk of their loss or destruction; and if the jury find that the fire and falling of the walls which destroyed part and damaged others of the fixtures, was without the fault of the defendant, the jury will return their verdict for the defendant.”

I should have said, if I have not already, that the falling of this wall and the fire were without the fault of either the plaintiff or the defendant in this action. As a matter of course, it was a thing that they did not contemplate, and which they did not expect, and for wrhich they were in no way responsible.

In regard to this first request to charge, we are of the opinion that the court did not err in refusing to give that charge; that is to say, we think the claim that is made by the plaintiff below that the contract is an entirety, and that it is for the sale of the goods and horses, and fixtures and furnishings, is the correct view to be taken of the contract. It is true that in arranging the details the parties themselves had agreed upon the value of the horses and the fixtures, and it is true that they did not attempt to agree upon the price of the goods; but they did agree that the price of the goods should be fixed by two persons, one of which should be chosen by each party, and that when that' inventory was completed, then the balance that was due upon the fixtures and horses and wagon, and the price of the goods was to be added together, and paid, or secured to be paid, by the purchaser. That is to say, the aggregate amount of the whole property as sold — the furniture, horses, wagons and stock of goods — was to be ascertained, the $1,000 that was paid was to be taken out, and the balance was to be paid and secured.

Just how far this contract as it then stood cast upon the plaintiff below, Mr. Davis, the loss of the goods at that time, perhaps it is not necessary, in the view that we take of the case, to decide. It is sufficient to say that we find that the whole price had been ascertained by the parties prior to the time that the goods were destroyed.

The defendant below also requested the court to charge the jury as follows:

2. “That if the jury find that the inventory of the stock ■of goods had been made and the price of the stock of goods had been fixed as provided in the written contract, and the •defendant was holding and ready to deliver the property on receiving the purchase price when the fire and destruction of the goods occurred — and that said fire and destruction was without the fault or neglect of the defendant — then said property was at the risk of the purchaser, and the plaintiff can not recover in this action.”

3. “That if the jury find that the inventory of the stock of goods had been made and the price of the stock of goods had been fixed, as provided in the written contract, and all things provided m the contract to be done by the defendant in reference to the goods, except the delivery thereof, had been done — when the fire and destruction of the goods occurred while the defendant was holding the property ready to deliver the same on being paid the purchase price thereof —and the said fire and destruction was without the fault or negligence of the defendant, then the property was held at the risk of the purchaser, and the plaintiff cannot recover in this action.

4. “That if the jury find that the inventory of the stock of goods had been made and the price of the stock of goods had been fixed, as provided in the written contract and all things provided in the contract to be done by the defendant in reference to the goods except the delivery thereof had been done when the fire and destruction of the goods occurred, while the defendant was holding the property ready to deliver the same on being paid the purchase price thereof, including the money,- notes and chattel mortgage to be paid and delivered by the purchaser for the goods, and the said fire and destruction was without the fault or negligence of the defendant, then the property was held at the risk of the-purchaser,and the plaintiff cannot recover in this action.

5. “That the payment of the money and the execution and delivery of the notes and mortgage for the balance of the purchase price of the property were acts to be done by ■the purchaser, and not by the seller, and the same were not necessary to be paid and done to cast the risk and loss of the property on the purchaser, provided all things to be done by the defendant in reference to the property had been donó, and that he was holding the property ready to deliver the same on the receipt of said money, notes and mortgage, at the time of loss and destruction of the property.”

Now, we are of the opinion that these propositions set forth substantially all that is applicable to this case, and that they should have been given, at least in substance. The court refused them, however, and proceeded to charge the jury at some length, and among other things, in speaking of the sale of the property, it said to the juryi

“The court charge you that the written contract between the parties which has been put in eivdence is not two different contracts, but one indivisible contract, affecting many articles of property, yet but one business; and that the parties by their contract contemplated and intended the sale and purchase of all of the property described in such contract — groceries, meats, fixtures, horses, harness and wagons —as parts of a general business, but involving a continued series or transactions known as and called the carrying on of a grocery and meat business, at the store described; and the court say that all of said property, the subject of negotiation and sale between the parties, was intended to be sold as a whole, together with the good will and right, of lease, which was the property of defendant; and used in connection with his business, and that when any portion of such, property became the property of the plaintiff in virtue of their contract, then all of such property so sold, and every article thereof, became at the same instant the property of plaintiff ; and for these reasons, and because of the above stated opinion, we have refused to give you in charge defendant’s first request. ”

In that the court included in this contract “the right of lease, which was the property of defendant. ” There is nothing said in the contract about the lease, or any rights whatever under the lease. It does net appear in the contract that the purchaser of this property intended to carry on the business; it does not appear that there was any lease, or, if there had been any lease, but that it had expired at this time. The contract is entirely silent in regard to.it; and the court of common pleas, in our judgment, erred in stating that as one of the items that was to be conveyed and transferred by Mr. Parker to Mr. Davis. And the significance and importance of that matter in this case is, that there is no claim that there had been any demand made of the lease, and the court charged afterwards that unless everything had been done by the parties that was to'be done, then the plaintiff would have the right to recover the $1,000. It being admitted that there was never any transfer of the lease, of course it means that all had not been done by Parker that he was to do, m that he had not transferred the lease or passed it over in any form to the owner of the property.

Without going through the charge of the court, it is sufficient to say that the court, in oar judgment, properly took this view of the case; that under this arrangement and agreement there must have been not only the inventory taken of the goods — the amount ascertained — but that the notes and mortgages must have been given, and everything must have been done between the parties before the title would pass, or before there would be any risk in regard to the loss on the part of Davis; but while the court charged generally in favor of defendant, as he had been requested by his counsel, yet he added to it such qualifications as would lead the jury to infer at least and lead them to come to the conclusion that everything had not been done that was required to be done by him, and in that we think his charge is misleading in the case.

As I have already stated, Parker had done all that he was to do. That is admitted by Mr.Davis upon his examination. As I further stated, the evidence shows that all had been done by Parker that he was to do upon Monday morning. And under the rules of law, we were of the opinion that the risk of this property was cast upon Davis upon the morning of Monday. Whatever was done after that time was done for his benefit, and we are unable to see how that would change the character of the risk that he had assumed. If he desired to have Parker take certain portion of this property out of the contract for his benefit, and reduce it so it would bring it with the price that he was willing to give, the contract not being set aside or waived in any manner or form by Mr. Davis, it seems to us that the risk should continue on his part. It is not very necessary to decide that, because, as I have already • stated, the contract was fully completed at six o’clock,so far as Mr. Parker was concerned.

J Q. W. Everett, Attorney for Plaintiff in Error.

E. L. Twing, Attorney for Defendant in Error.

The goods that were to be taken out had been taken out and put away.

The court submitted to the jury that they should take all the circumstances and all the surroundings into consideration, to see what the intention of the parties was in regard to the delivery of those goods. We think the court went a little too far in that respect. The rights of these parties were fixed by a written contract. The contract is express and unequivocal. It is for the sale of a stock of goods; it is for the sale Of a specified thing. No question about it. The stock was there, the fixtures were there; the horses and wagon were there. It is for the sale of those very identical articles. The only thing that was to be done was to ascertain the price of certain articles. The price of certain of them was ascertained; the price of certain others ivas to be ascertained at an early day. When that was done, then all was done that was necessary to be.done to fix the amount that was to be paid. The contract was specific upon that question as to what was to be included in the contract and what sale was to take place. Whatever may have been said by Mr. Parker the next morning, the question is in controversy. If he did say that he ought to be liable,or something of that kind, that would not fix his rights, unless there was an agreement by him that he should be liable; and there is nothing of that kind claimed in the contract. He would clearly have the right to stand upon his legal rights as they were fixed by the contract and by the Jaw of the land.

Entertaining these views of the case, the judgment of the court of common pleas will be reversed, the verdict will be set aside, and the case will be remanded to the court of common pleas for a new trial.


text:
    (Sixth Circuit — Lucas Co, O., Circuit Court
    Jan’y Term, 1895).
    Before JBaynes, Scribner and King,* JJ.
    HARRY W. BAUSCH v. WILLIAM McCONNELL, et al.

      Appeal — Amendment of petition on appeal.

    Where a suit is'brought in the Common Pleas to subject the interest of defendant in real estate to the payment of a judgment against him, his interest being described as a dower interest, and on appeal to the Circuit Court, leave to amend the petition is obtained, and an amended petition is filed there in which defendant’s interest is described as the whole estate held in trust for defendant to defraud his creditors, held, such amendment is admissible, and the appellate court will retain jurisdiction of the case.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

In this case a motion has been submitted to this court to strike out from the second amended petition certain portions of the petition. This raises a question of considerable interest in regard to the extent to which amendments may be allowed in appeal cases after the cases have arrived in this court.

The amended petition is,in substance, the original petition with the addition of a single party and a single averment in regard to him. It sets out, in substance, that the plaintiff recovered a judgment against William W. McConnell, for a certain sum of money, and issued execution upon that judgment, which has been returned “no property found.-’ It then avers that Catherine A. McConnell, who was deceased before the commencement of the action, during her lifetime was the owner of the undivided one-half of three lots in Oliver’s addition to Toledo, Lucas county, Ohio. “That she was a partner and had an interest with defendant, Bridget O’Neill, in operating a flour and grist mill at Toledo, Ohio, under the firm and style of McConnell & Company, said defendants being the only proprietors,’’ That she died in 1890; that at the time of her decease she was the owner in fee simple of the above described property; that is, of the undivided half, and that she was, with the defendant, Bridget O’Neill, operating said flour and grist mill at the place and in the manner aforesaid. That she died intestate, leaving to her husband, William W, McConnell, a dower interest in said real property, and to her daughter, Clare Taylor, the fee pimple title in said real property. That the rents and profits arising from said real property are now and ever since decedent’s death have been enjoyed and received by said JVlcConnell or said Clare Taylor, or both of them, concerning which plaintiff is not informed. That said flour and grist mill is still conducted under the firm name and style of McConnell & Company, and that said McConnell is now, and ever since decedent’s death has been enjoying and receiving the profits and shares arising from said business which said Catherine A. McConnell, deceased, would be entitled to, were she now alive, That said McConnell has a dower interest in said real estate and also an interest in said flour and grist mill business; that the defendant, Clare Taylor, is the only legal heir and legatee of said Catherine A. McConnell,is the owner in fee simple of said real estate, and has an interest in said flour and grist mill business; that said Bridget O’Neill owns and holds an undivided one-half of lots No. 346, etc,, and that Milton Taylor claims some interest in the property. “Wherefore plaintiff asks that said defendants and each of them may be required to answer this petition and fully and truly set up, account for and disclose their respective interests and properties aforesaid; and that said dower interest of said William W. McConnell may be assigned to him, and the same or the rents and profits arising therefrom together with all the rights and interests of all the defendants therein be subjected to the payment of the judgments and costs of this suit, and for all other and further relief, orders and judgment to which the plaintiff may in equity be entitled.”

Now, a judgment having been rendered for the defendants upon the trial of the case upon that petition, the plaintiff below appealed to this court, and after the case was filed here, and at the last term of this court, the plaintiff obtained leave to file an amended petition, denominated a second amended petition.

In that petition they proceed to set out the judgment that was obtained, and then proceed to give a history of the transaction wherein they say that this note upon which the judgment was rendered was executed by a firm known as McConnell & Rockwell, and they claim that McConnell was a partner with a certain party in Findlay, Ohio, for many years under the firm name of McConnell & Rockwell, running a grist mill there; that that firm became insolvent and made an assignment, and the mill property at Findlay was sold and purchased in the name of Mrs. Catherine McConnell, with another party by the name of Kirk, and that it was bid in for a certain sum of money, perhaps $5,500, and a mortgage was given, and thereafter the business was carried on under the name of Catherine McConnell and this man Kirk, but that the whole business was done and the work all performed by William W. McConnell, and, although the property was taken and carried on under the name of Catherine McConnell, William W. McConnell was the real party who carried on the business. That this business was profitable, and with the moneys and profits arising from that business they were able to pay off the mortgage and accumulate money; that finally, some years afterwards, that property was sold at such a price that the McConnells received something like $20,000, and thereafter came to Toledo and purchased this property and an arrangement was made whereby the business was carried on there under the name of Me-' Connell & O'Neill — the property being taken in the name of Catherine McConnell, and the business carried on in the name of the firm as I have stated, but that the purchase price was paid out of the $20,000 aforesaid, and that the business was carried forward from that time until the death of Mrs. McConnell by William W. McConnell, who did all the work and labor,and who had the whole supervision and control of the same as if it had been his own,

In 1890 Mrs. McConnell died, and the business was still continued — Mr. McConnell carrying it on, and the firm name was unchanged; but an undivided one-half of the property devolved by descent upon Mrs. Taylor, and that McConnell had one-third interest in the property. It avers that this whole business was carried on from the beginning to the end in the name of Mrs. Connell — so far as the Mc-Connells were concerned, was put in her name with intent to defraud creditors and with the purpose of keeping it from the creditors of William McConnell. It avers, also, I think, that it was in trust for him — was held for him; that it was his property all the way through; and they pray for a sale of the whole property and that it may be subjected to the payment of the plaintiff’s debt.

Now, the defendant, Mrs. Taylor, prays the court to strike out all that which relates to the fact that the real estate was held in trust for the plaintiff, or all the averments which seek to subject her interest, in the legal title to the property, and the payment of the debts of McConnell, and state that the suit was originally brought simply to subject the dower interets of William McConnell to the payment of this judgment, so far as the real estate was concerned, and not to allow the claim under the averments of the petition, which bring into controversy the title to the whole of the land, which is, in effect, the bringing into the case of a new cause of action after it has come into this court, and they set out that the only jurisdiction of the court is an appellate jurisdiction; and that the bringing into the action of a new cause of action is not the exercise of the appellate jurisdiction of the court, and that this court has no right to assume any such jurisdiction.

The case is a close one, and the question is an interesting one, and perhaps, I may say, a difficult one. We have discussed it at some length,and read generally the authorities; but, in this matter we are keeping pretty close to the Ohio authorities, and the question really is, whether, under the decisions of the Supreme Court of this state and the principles laid down in those cases, this court has authority in this particular case to assume jurisdiction and hear the case upon the second amended petition, and try the question whether the undivided half of this real estate was owned in fact wholly by McConnell,or was held for his benefit. It will be observed that the original petition was brought upon a judgment — that suit was brought upon a judgment which had been obtained by the plaintiff against William McConnell. It was averred that he had no property subject to levy and execution whereby the amount of that judgment could be made; but it was averred that he had an interest in and about this property. It was averred, it is true, that his interest in the real estate was a dower interest, but it was averred that Mrs. Taylor «and McConnell both had an interest in the personal property and income of the business and they prayed that the whole property might be sold and the proceeds applied to the payment of the claim of the plaintiff. Mrs. Taylor was an original party to the suit,and a party before the court,and the question,perhaps,is whether the whole of the land was before the court of common pleas, or whether it can be brought before this court.

The leading cases in the Supreme Court can be found in the 8 Ohio St., the case of Grant, Survivor, etc. v. Ludlow, etc., and a discussion of the question may be found,on page 28. It is a decision by Judge Swan, and it is characterized by the clearness and force with which he was accustomed to discuss legal questions in his life-time.

In that case a suit had been brought to foreclose a mortgage on property in Cincinnati. The mortgage had been given to secure some collateral liability that the plaintiffs had entered into arising out of a pork transaction, which covered a great many thousand dollars and involved a great many questions in regard to guaranty and the rights of those parties, which are unnecessary to discuss here. A hearing was had on that case and a judgment and a bill to review was filed,and the questions ultimately got up to thesupreme court of the state. It came from the district court to the supreme court by reservation, and the court held that it stood in the supreme court in exactly the position that it was in the court of common pleas. After a judgment had been rendered the lawyers began to brush around and they found that they had not got, by quite a majority, the number of parties that they ought to have in the suit; there was quite a host of them outstanding which it was necessary to get before the court before their interests would be concluded or passed upon and adjudicated, and thereupon an amended bill was filed and quite a number of parties were named as parties to be brought into the case, and they came in and answered; one answered one thing and another another, and several of them declared that they had never been brought into the case in the court of common pleas, and that the appellate courl had no jurisdiction over them to try the case,

The case is discussed fully by Judge Swan. I have not time to read it, It would prove profitable reading for every person interested in this question. But, in that case they sustain the right of the court to bring in these respective parties,and to bring them before the court to pass upon their respective claims in this property, It will be -observed in that case that the property itself was before the court; that is to say, the suit had been for the purpose of foreclosing a mortgage and marshal the liens upon the property and have a sale of the property for the payment of the various liens. Incidentally, in passing upon this, and ' coming back-to the original question (for he starts from the beginning), he refers to the case of Massie v. Matthews, 12 Ohio, 352, which was a case wherein suit had been brought for the purpose of selling land and an administrator, or trustee, had been made a party, and such proceedings had been had that the land was sold and disposed of, and afterwards certain parties who were interested in it brought suit in the nature of a bill of review, for the purpose of reviving the action. Under that bill of review the case came up practically as upon petition in error. But, after the case got into the supreme court, it was suggested that the whole judgment had been obtained by fraud, and thereupon they allowed a bill to be filed in that court by the parties who had brought the bill of review, in which they set up that one of the parties who was administrator, or trustee, whichever it was, had colluded with the other party upon the sale of the property and had permitted him to take a decree and a judgment, and that this administrator had benefited by the transaction, and, perhaps, had some of the land. The supreme court permitted the bill to be filed,and passed upon the questions and went through the judgment below and set it aside.

There is a case in 48 Ohio St., Henry v. Jeans (p. 443), in which there is a discussion of this same general principle. In that case a railway company — -the Cincinnati & Muskingum Valley Railway Company, had executed a lease to the Pittsburgh, Cincinnati & St. Louis Railway Company, that is, had leased its road for a certain number of years, for a certain sum of money, and afterwards an action was brought by the Pittsburgh, Cincinnati & St. Louis Railway Company to cancel the lease. Really the Pittsburgh Company wanted to get rid of the lease; it was a little too favorable to the Cincinnati Company — and such proceedings were had in the suit as that a decree was rendered cancelling the lease. Thereupon certain stockholders of the Cincinnati & Muskingum Railway — finally getting awake — concluded that they had some interest in the matter,and made application to the court for leave to file an answer to the original petition — leave after judgment. That leave was granted and they filed, and a certain party of the name of Henry filed his answer on behalf of himself and others, in which he contested the right óf the parties to have the lease cancelled; and thereupon, without having the judgment set aside, he took an appeal, after filing his petition,to the circuit court, from the original judgment rendered by the court of common pleas, and the case came into the circuit court for the seventh circuit, and that court struck his petition from the files, and sent him out of court. Then he took his case to the supreme court, and, in the 47 'Ohio St., the supreme court held that the circuit court had no right to strike his petition from the files, and reversed the action of the circuit court,and sent the case back for trial, and thereupon the court dismissed the petition on the ground that it brought in new matter which had not been m the common pleas and was, therefore, not in their appellate jurisdiction. Thereupon Henry took the case to the supreme court, and the supreme court reversed the action of the circuit court in that case, and had a general discussion as to the jurisdiction, *and they held, referring to the case of Grant v. Ludlow, and other cases, as follows:

“But it is urged,that by the provisions in section 5225 of the Rev. Stats., ‘The circuit court sh»ll have jurisdiction of certain cases as hereinafter provided by appeal; and the trial therein shall be conducted in the same manner as in the common pleas court, and upon the same pleadings, unless amendments are permitted or ordered by the circuit court. ’

And.now the court say:

“If we consider this section in connection with section 5114, it will be apparent that amendments of pleadings and the inserting of new allegations may be permitted under both sections, But there is nothing in the section regulating trials on appeal, that invalidates or renders nugatory amendments permitted under section 5114. If new parties and interest arise or are discovered after appeal, they may be brought under the cognizance of the circuit court, and section 5225 would cover cases of that class, as section 5114 would embrace interests and parties omitted and brought to he notice of the court of common pleas after judgment and before appeal. But the orders of the respective courts authorizing new parties to be made and new pleadings tobe filed, are alike in the interest of justice, and alike to be sustained.”

Chas. Cr. Wilson, Attorney for Defendants.

K. A. Flichinger, C. W. Everett, Attorneys for Plaintiff.

And they have stated before that the statutes should be liberally construed for the furtherance of justice.

Now, under these decisions and under the principles laid down in them, we think, under the facts of this case, we ought to deny the motion that is made here. We think we have a right to allow this amendment to stand. As I have already said, this action is brought upon a judgment rendered by the court in favor of the plaintiff here against the defendant, William McConnell, and it is brought to subject property — the interest of McConnell in this grist mill and in these lots; and although in the first case the position is not very fully stated, yet it sets up very clearly that they are seeking to subject what they then supposed to be his interest in this property. Subsequently, it was discovered that these interests were larger, and thereupon, by amendment, they come in and state what his interest is, and aver in the petition that this property was purchased and held in such a manner that, as between McCbnnell and his creditors, it should be subjected to the payment of his debts. We think that the amendment was within the spirit of this decision which I have read, and therefore the motion of the plaintiff to strike out the second amendment will be denied, or overruled.

I do not pass upon the statxxte of limitations, because that will come up later on.

Thereupon the plaintiff excepted.


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan’y Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    ABRAM K. DETWILER AND GEORGE DETWILER, PARTNERS v. EDITH E. GATES, EDITH E. GATES, EXR’X. OF ERNEST L. GATES.

      Purchaser 'of land without notice of third party’s claim to part of purchase money.

    Where two parties agree that each should have one half of the profits realized from the sale of some land, the purchaser can not be held by either for his share of such profits where no knowledge on his part of such agreement is shown.
   Haynes, J.

This is a petition in error to reverse a judgment that was rendered by the court of common pieas in favor of Edith E. Gates personally, and Edith E. Gates as executrix, in an action that was commenced in the court of common pleas, and prosecuted, so far Mrs. Gates was concerned, to final judgment, wherein the plaintiffs in error were plaintiffs, and William Gates and Joseph M. Spencer, Ernest L. Gates, and Edith E. Gates were the original defendants. Subsequently Ernest L. Gat^s died, and Edith E. Gates was appointed executrix of his last will and testament, being, I believe, the devisee of the estate also.

The original petition was filed, and the parties wer$ served,and thereupon demurrers were interposed, and such proceedings were had upon that petition that leave was obtained to file an amended petition. That was filed, and to that Edith E. Gates interposed a demurrer, which was heard, and sustained. Thereupon a supplemental petition was filed to the amended petition, no judgment having been rendered on the overruled petition, and another demurrer was interposed to the amended and supplemental petition. Coming on to be heard, that demurrer was sustained, and the plaintiffs, not desiring to amend their pleadings further so far as Edith E. Gates was concerned, judgment was rendered in her favor personally, and as executrix.

The amended petition sets forth in substance that William Gates, in April, 1887, desired to purchase the north-easterly sixty feet of lot 447, Port Lawrence Division of the city of Toledo, Ohio, and made an arrangement with the plaintiffs, who are real estate dealers, to purchase the land, the contract being either by William Gates personally or as agent, but it is averred in th'e petition that it was for himself and in his own interest. The property in question belonged to Mary J. Dodd. Thereupon the Detwilers made such an arrangement with her that they got an option for the land for the sum of $4;400, she refusing to pay any commissions or to be to any expense whatever in the matter. This option was reported to William Gates, who agreed to take the premises upon the terms that were mentioned, and also agreed, if he had not already agreed, to pay all the commissions and expenses for the purchase. Subsequently, however, the petition avers, and before the final consummation of the purchase and the delivery of the deeds, on the 23rd of April, 1887, William Gates made an arrangement with the plaintiffs,whereby, instead of paying them commissions upon the purchase of the property, that he was to take and have ten feet of the property, and that the balance of the sixty feet,to-wit: fifty feet, should be sold, and the plaintiffs should have for their commissions for their services in the matter one half of the net profits. The agreement is set forth and attached to the petition, and is in words, as follows:

“Toledo, 0.,Apl. 23d, 1887.
“In consideration of I. H.Detwiler& Co.surrendering their commission in sale of sixty feet on Erie street bought from Mrs. Dodd, I agree that after deducting my ten feet at $1083.40, all the fifty feet brings above $4416.60, taxes and assessments they are to have one-half.
(Signed). “Wm. Gates, Agt.”
After that the deeds were made, and by direction of Mr. Gates, to Joseph M. Spencer; but prior to their delivery to Mr. Spencer the following paper was written and signed:
“Toledo, O., Apl. 25, 1887.
The within sixty feet is part of lot 447 Port Lawrence deeded to me this day by Mrs. Dodd and I hereby agree to the terms of the within agreement to pay I. H. Detwiler & Co. one-half of the profits of the property when sold as signed by Wm. Gates as agent.
(Signed). “Joseph M. Spencer.”

This memorandum was endorsed upon the back of the paper upon which the other memorandum was written.

Afterwards, on the 7th of July, 1887, Joseph M. Spencer and wife, for and in consideration of $6500, conveyed the north easterly sixty feet of said lot to the defendant, Ernest L. Gates by a quit-claim deed. The petition further sets forth that on the 3rd day of May, 1888, said defendants, Ernest L. Gates and wife, Edith. Gates, in consideration of $1000, sold and conveyed to Charles H. Gates the southwesterly ten feet of the north-easterly sixty feet of said lot 447, being, as we understand from the averments of the petition, the ten feet that were referred to in the agreement as being reserved to William Gates. On the 7th day of May, 1888, shortly after that, Ernest L. Gates and wife, on consideration of $1650, sold and delivered to the trustees of the Toledo Public Library part of said property, being that part lying in the bed of the old canal. The petition sets forth that there was a mortgage given to a certain party, and that person was made a party. They set forth that Ernest L. Gates was a son of William Gates, and they allege, as I have already stated, that the whole of this proceeding was for the benefit of himself, and that the purchase price was paid by him. And they further aver that Joseph M. Spencer and Ernest Gates both, in receiving this title, received and held it for the'benefit and in trust for William Gates; that neither Ernest L. Gates nor Joseph M. Spencer paid any portion of the purchase money whatever, and that they have no beneficial interest in the property, but that it was wholly, as I have said, held in trust for William Gates.

They aver that certain rents have been paid and collected upon the premises by Ernest L. Gates, and aver that in reference to the deeds for the property that has been sold. They say that they do not know whether Ernest L. Gates had any knowledge whatever of the agreement made between plaintiffs and William Gates, which was subsequently ratified by Joseph M. Spencer, in the paper writings that have been referred to, and they make no charge of knowledge in that respect.

The original petition was really for a decree or an order reauiring these parties, — Ernest Gates and these other defendants — to hold this property in trust for the plaintiffs, to the extent of the amount of profits that they should have in the property upon its final sale, for they aver that the property has advanced in value, and that it will bring a much larger price than was paid for it. The defendants all of them deny that the plaintiffs have any right whatever in the property.

The supplemental petition — and upon which final judgment was rendered — sets up and avers that the defendant Ernest L. Gates, departed this life testate, and by his last will and testament made Edith E. Gates his sole devisee and executrix, and prays that she shall be made a party (which was done). They then aver that lis pendens had been established as to all the parties herein by the filing of the original petition; “that said defendant William Gates, has now realized and received in cash and securities secured by mortgage on said real estate, from the sale thereof, the following amounts, to-wit:

“ For the part of said trust estate sold to the trustees of the Toledo Public Library............$1000.00
“For rents...................................... 1800.00
“For balance of said trust estate sold as aforesaid to Jacob J. Swigart.......................... 7175.50
Total trust estate........................$9475.50

Then they make some allegations in regard to assessments and taxes, and an averment that one-half of the net profits amounts to $2286.81. They pray for an account to be taken under the agreements set forth in their amended petition, upon the basis of rents received, and the amounts received and secured to be paid “said defendant William Gates, under and in pursuance of the sales of said premises to the trustees of the Toledo Public Library and to said Jacob J. Swigarj hereinbefore set forth, and for all other relief.”

As I have said, a demurrer was interposed by Edita E. Gates, and that was sustained, and judgment was rendered in her favor. To reverse that judgment, error is prosecuted here.

The record nowhere discloses that any final judgment has been rendered in the case in regard to the defendants William Gates or Joseph M. Spencer. As to them, so far as this record discloses, the case is still pending in the court of common pleas. They are not made parties in this petition in error, nor in any way brought into court, nor are any pleadings, if they ever filed any, made a part of the record in this case in this court. It will be observed that while the original petition was filed for the purpose of declaring a trust in this property in favor of these plaintiffs to the extent of their expected profits,and to have that trust declared against funds and property in the hands of Ernest L. Gates, and subsequently in the hands of Mrs. Gates, that amended petition avers that the property is held in trust for William Gates. The averment, as I have already stated, is, that they have no knowledge whether Mrs. Gates or Ernest L. Gates had any knowledge whatever of this written agreement, and they make no averments that they had any such knowledge. They make averments that certain portions of the property had been sold,and certain sums realized for it, and the averments as amended are, that all this property has passed to and is in the hands of William Gates. There is nothing to show that there is a dollar of money' in the hands of Mrs. Gates, either personally or as executrix. And, indeed, so far as the petition discloses, she has performed all that she was to do under this trust. Indeed, the property being sold, she has made conveyance of it at the request of the cestui que trust, and he has received all of the moneys arising from the sale of the property. Now we see here no allegations that in any manner or form charge any money to be in the hands of Mrs. Gates, or any to be forth-coming from her, or any notice on her part that would make her personally liable.

What the plaintiffs are asking for, so far as we can understand, and claiming, is an interest in this fund to the extent ■of one-half of the net profits that have been realized from the sale of the property. The plaintiffs in error have filed a -very full and able brief in the case, citing many authorities, ■showing that this property should be held in trust by these ■parties for the benefit of these plaintiffs, to the extent of ■one-half the amount of the profits or expected profits — that is to say, that Mrs. Gates to that extent would hold the property in trust for them; if she did not, that Spencer would. We don’t think it very material to this case at present to pass upon that question. However, we have read 'the brief, and see that the authorities cited seem to sustain the position. Really, what there is in the case, as I have already said, is,that these parties are entitled to an accounting for one-half of the profits arising from the sale of this property, and that they have an interest in that fund to such an extent that they might assert a lien on the fund for an accounting as against William Gates; yet, as against this plaintiff, we see nothing about it or in reference to it that would entitle them to an accounting ór a claim against her, in the amended petition. And while Ernest L. Gates was a proper party at the commencement of the suit, and she after-wards, the facts disclosed by the supplemental petition, upon which the final judgment was rendered, show that she was entitled to a judgment in her favor and to pass out of the case. Certaiuly, upon that state of facts, upon a final hearing of the case, no judgment could be rendered against her, and we see no reason for keeping her in the case longer. We think, under the statutes of the state, she is entitled to have her separate judgment and depart from the case. Entertaining these views, the judgment of the court of common pleas will be affirmed.


author: King, J.

text:
    (Sixth Cicruit — Lucas Co., O., Circuit Court
    Jan’y Term, 1895).
    Before Haynes, Scribner and King, JJ.
    JOSEPH KESTING v. LENA DONAHUE.

      Building Association — Agreement to loan money as building progresses — Money can only be paid by direction of borrower.

    Where a Building & Loan Co. makes arrangements to loan to a party the money for building a house, the money to be paid as the work progresses, as he would direct, the money can only be paid to the parties designated by him, aDd not as the contractor for the building designates.

      Mechanic’s Lien — Mortgage to third party at bcontractor’s reguest as payment — Binding on subcontractors.

    The acceptance, as part payment by the contractor, of a mortgage, executed on the property to one of his creditors by the owner, at such contractor’s request, is a valid payment pro tanto as against the sub-contractors and laborers.
    ' Attorney fee payable on foreclosure— When not chargeable to mortgor.

    Where the mortgage executed to the building association provides that in case of foreclosure the mortgagor shall pay $30 attorney fee to such association such fee can not be charged a mortgagor who is not in default on any of the conditions of the mortgage, where the expense is incurred by the building association in attempting to maintain a claim which by the court is decided invalid.
   King, J.

This case comes into this court on appeal from the common pleas court of this county. The action is brought by Joseph Keating to foreclose a mechanic’s lien, and to establish the amount, validity and priority of mechanics’ liens as well as certain mortgages.

The plaintiff was a sub-contractor, who did the mason work under a contract with the defendant, Michael Weibel, the principal contractor, and the other lienors are material and labor men who furnished material and labor for Michael Weibel, the principal contractor, and upon the building in question. The evidence in the case establishes, without contradiction, the following facts:

That the defendant, Lena Donahue, was the owner of a lot in Toledo, and her husband, Michael Donahue, desired to erect thereon a building to be used as a residence and store room. Having no money to pay for the building, he applied to the defendant, The Mutual Aid Building & Loan Company, by a written application, dated May 15, 1893, to which he signed the name of Lena Donahue and of Michael Donahue, and in this case, so far as Michael has acted, he has acted as the agent of his wife. The application for a lean was referred by the Loan Company to a committee to examine the property, and the committee made a report in writing, finding that the lot was worth .$750; that it was proposed to erect a building thereon worth about $2,600,and they recommended that the loan be made to the amount of $2,200. This application and report was then referred tc the attorney of the corporation, who on June 15, a month after the original application was signed, reported that the title of the property was all right, and on June 15, 1893, Michael Donahue andjiiswifej executed to the Loan Company a mortgage upon these premises for the sum of $2,200, the mortgage reeiting that the money has been paid, and is, in the mortgage, receipted for. It was, however, outside of the mortgage, the understanding of the parties that it should not all of it be then paid. On the 20th of May, five days after the application to the Lean Company had been made, and probably after Donahue had received an assurance that the Loan Company would let him have the money, he entered into a contract with Michael Weibel to erect and complete the building in question for the sum of $2,698, to be payable in installments as the work progressed. On June 15th the first installment became due on this contract, that, by the terms of it being payable when the cellar walls should be up ready to receive the superstructure. And on this day, as uefore stated, the Building & Loan Company received the mortgage, and on that day advanced and xiaid on account of their agreement to loan, the sum of $23.60 to Mr. Donahue, and on his order, paid to Weibel, the contractor, $500, making the total sum of $523.60.

On the 24th day of July, a second installment became due to Michael Weibel on the contract, and the Loan Company were again called upon to make a payment. Before making a second payment, they required that the owner and Weibel, the contractor, should execute a x')aPer setting forth the material conditions of the contract between them, and on the part of Weibel waiving any right to a mechanic’s lien. This having been signed both by Donahue and Weibel, the Loan Company on that day paid directly to Donahue $56, and to Weibel, on the order of Donahue, $600, making on that day $656, or a. total amount up to this date of $1,179.60.

On August 8, they paid to Donahue directly $28 more, making the total amount advanced on account of the loan $1,207.60, and then leaving to be yet advanced, $992.40. It appears that of the $600 paid to Weibel $550, went directly to the defendants, Chesbrough Bros., and this was with the knowledge of the Loan Company. Chesbrough Bros, had furnished some lumber towards the erection of the building, and had an account for it amounting to about $550; but the contractor, Weibei, was indebted to them in an amount of more than $600 for materials furnished to other buildings.

On August 22, 1893, the building was nearly completed. The work then remaining to be done was afterwrds performed at a cost of $117.55. At this date the work came to a standstill, and Weibel was unable to pay his men,and they refused to work until paid. The material men were also demanding their pay; the Loan Company was also insisting that as it appeared that Donahue would have to borrow more money in order to pay the contract price, that he should make such arrangement, which must in any event be subsequent to the lien of the Loan Company, and which would release the contract to the extent of the difference between the' amount to be furnished by the Loan Company, and the amount of the contract, which, including certain small sums advanced to Donahue, was said to be about $600.

Donahue undertook to borrow that amount of money, but could find no one willing to loan it and take a mortgage subject to the Loan Company’s mortgage, until after some talk, Weibel had arranged with Chesbrough Bros, to accept from him, Weibel, as a payment of his indebtedness to them a mortgage for $600, to be given by Donahue subject to the mortgage of the Loan Company, and which mortgage Weibel was willing to accept as a payment to him on the contract of $600. Accordingly Donahue and his wife gave the note and mortgage for $600 to Weibel, who transferred it to Chesbrough Bros. At this time, August 22, the third installment, amounting to $800, was past due. The work required to be performed in the contract before it was due had been completed, and some additional. No liens had been filed, no notice had been served of an intention to procure liens, although Donahue knew that the labor men, many of them, had not been paid, but he gave the mortgage and note to satisfy his contract with Weibel to the extent of $600, and because the Loan Company had so far refused to advance any more money until some arrangement should be made having this effect. Thereupon Donahue and Weibel went to the office of the Loan Company. What took place there, is in dispute.

We find from the evidence that a Mr. Schmidt was the secretary of the Loan Company, and was in the office at the time when Donahue and Weibel came. That Donahue and Weibel informed him that the $600 that had been previously spoken about had been arranged for. That Chesbrough Bros, had taken the mortgage. Thereupon Schmidt telephoned to the office of Chesbrough Bros., who responded to the effect that they had done so. Schmidt on the witness stand claims that he had misunderstood both the conversation and the telephone. That it was his understanding at the time that Chesbrough Bros, had taken a mortgage and had advanced $600 to Donahue, and he supposed that Weibel had had the benefit of $600 in money. There does not appear in the evidence any reason for that misunderstanding. But it is not deemed material. Schmidt had been insisting that Donahue should take care of the contract to the extent of $600, and the effect of the mortgage made to Weibel and transferred to Chesbrough Bros., was to do exactly that.

We conclude as a matter of law, that the mortgage was made and accepted by Weibel as a payment upon his contract. That Donahue had right to make it in that way, and Weibel a right to accept it, and the mortgage is valid in the hands of Chesbrough Bros., but will be subject to the mortgage of the Loan Company. .

We further find that when Donahue and Weibel were in the office of the Loan Company, Donahue informed Schmidt that the laboring men had not been paid, and that they were insisting on their pay, and that he should pay to Weibel on account of the contract, all the money that was coming to him, Donahue, except about $100. That he should keep back that sum in order to insure the completion of the work yet to be done bv Weibel, but that all the balance should be paid over to Weibel. Schmidt replied that the Loan Company had no money but would have some soon. And thereupon Donahue went away. After he had gone, Schmidt said to Weibel, who had remained, that as he, Weibel, was indebted to the Western Manufacturing Company, who had furnished a large amount of lumber for this building that he might give the Western Manufacturing Company an order on the Loan Company, or ha might say to them that the Loan Company would hold for the Manufacturing Company $600 of this money, and that the matter could be arranged between the two corporations. In this connection it should be stated that Mr. Puck is the president of the Loan Company, of which Schmidt was the secretary, and was also secretary and treasurer of the Western Manufacturing Company. Weibel proceeded to find Mr. .Puck, gave him the information which Schmidt had given him,and Puck informed him that he desired that in writing. Weibel went back and saw Schmidt, who gave him the paper, which reads as follows:

“We will hold six hundred dollars for your ac’t. Lena Donahue and Michael Weibel. The Mutual Aid Building & Loan Company. Theo. Schmidt, Secretary.”

There is no date upon it. It is written on the back of a blank deposit slip. This paper, which is simply an assurance that the Loan Company will hold $600 ‘for your account”, is addressed to nobody, and, standing alone, its meaning would not be plain. Mr. Weibel gave this paper to Mr. Puck, who, in a few days returned it to the Loan Company. It was net acted upon or paid by the Loan Company until about a month later. The Western Manufacturing Company gave nothing for it, and did not in any respect change their position.

Two or three days later than this, possibly on the 26th or 27th of August, Donahue finding that the laboring men were not paid, that they refused to go on with the work, and that nothing was being done to the building, went again to the office or the Loan Company, and found in charge a bookkeeper. Mr. Schmidt was not there, and he said to the bookkeeper: “Don’t you pay that money to Weibel.” The bookkeeper does not appear to have made any response to this.

On the 28th of August, the plaintiff, and some of the other laboring and material men .filed the liens involved in this case, and Mr. Donahue went again to the office of the Loan Company and said to the man in charge — Donahue says it was Schmidt, but Schmidt denies that he was present —that they must not pay that money or any more money to Weibel, and the man in charge replied “We have paid it.” As I have before stated, they had paid nothing and did not pay until later. It is now claimed by the Loan Company that they should be entitled to a credit of $600 as advanced upon this loan, which they afterwards paid to the Western Manufacturing Company, and that the lienors are not entitled to any claim upon the money as a fund in their hands. We dc not think this claim can be upheld. It does not appear that Donahue was negligent in anyway. He ordered the secretary to pay the amount due upon his contract to the contractor. If the secretary had obeyed that order, and the contractor had himself applied the money, the Loan Company would not have been responsible for that, but the Loan Company did not pay the contractor. They made an arrangement by which they should pay at some time another corporation, with which Donahue had no relation. So far as the evidence shows, Donahue did not know that Weibel was indebted to several workmen, and he had insisted that the money to be advanced to him by the Loan Company should be paid over to Weibel to satisfy the claims of these workmen. This he had said to the secretary of the Loan Company. He gave the Loan Company no direction to do anything with his money, except to pay it to Weibel. In this situation of the parties, we must hold that the assumption by the Loan Company of an_obligation topq,y the Western Manufacturing Company $600, and winch they did not pay until-about a month later, was unauthorized by Donahue, who had the sole right to direct the payment of this money, upon which he was paying interest for its use, to the Loan Company. '

R. S. Holbrook, Attorney for Plainitff.

E. W. Tolerton, Attorney for Chesbrough Bros.

' W. J. Gill, Attorney for M. Donahue.

And we conclude that the Loan Comnany still has the amount that it agreed to loan Donahue, the sum of $992.40, out of which the lienors have agreed there should be paid the amount necessary to complete the building to the extent of $117.55, leaving in t,he hands of the Loan Company for the use of Donahue, the sum of $874.85, with interest on the same from the date when it ought to have been paid to Donahue, September 20, 1893, which amount and interest to the date of payment the Building & Loan Company are ordered to pay into court.

We find that at the date when payment was stopped, and this trouble arose, there was due Weibel on, his contract the sum of $867.95 from Donahue.

That the plaintiff and the other lienors are entitled to liens, the amount and priority of which, the parties can arrange among themselves, «s there has been before us no dispute as to the amounts and priorities. That these lienors are entitled to liens upon the building and premises of the defendants, Michael and Lena Donahue, to the amount and for the sum that is remaining unpaid on the contract to the principal contractor, and which liens will be extinguished from the money paid into court, as hereinbefore required. And from which money, when paid in, there will be first paid the costs incurred in this action in the court of common pleas, and the balance shall be paid to the lienors, except that from the amount found due the plaintiff, there shall be repaid to Michael Donahue the sum of $5 0, that being the sum agreed upon between the plaintiff and Michael Donahue for some alleged defects in that portion of the work performed by the plaintiff.

We, further find that the costs of the trial in this ' court shoulá be paid by the defendant, the Mutual Aid Building &Lcan Company; that under the contract they are entitled to an allowance for attorney’s fees the sum of $30. We disallow this claim on the ground that they were not entitled to foreclose their mortgage, that Donahue was notin default, and the conditions had not happened upon which any sucb jjrovision in the mortgage would become operative.