author: Gorman, J.

text:
    AS TO PAYMENT OF ACCRUED TAXES ON PROPERTY APPROPRIATED BY A MUNICIPALITY.
    Court of Appeals for Hamilton County.
    City of Cincinnati and William A. Hopkins, Treasurer, v. Frances D. Jones and Frank J. Jones, Her Husband.

    Decided, March 29, 1915.

      Appropriation — Proceedings hy a Municipality for the Acquiring of Land — Title Passes, When — Taxes Which Save Become a Lien May he Deducted from the Compensation Awarded.

    1. In an appropriation of property by a municipality title does not pass until full compensation has been paid or secured to be paid.
    2. A lien for taxes is not divested by condemnation proceedings, and taxes which have become a lien on the property appropriated on the date the title passes may be deducted from the compensation awarded.
    3. A county treasurer is a mere ministerial officer charged with the duty of receiving taxes, and is in no way a necessary party to an appropriation proceeding.
    ■ Walter M. Schoenle, City Solicitor, and John V. Campbell, Prosecuting Attorney, for plaintiff in error.

      DeCamp & Sutphin, contra.

      Motion for an order directing the Court of Appeals for Hamilton County to certify its record in this case, overruled by the Supreme Court, July 2,1915.

   Gorman, J.

This is a proceeding to reverse a judgment of the Court of Insolvency of Hamilton County.

On December 11,1911, the council of the city of Cincinnati duly passed a resolution declaring its intention to appropriate certain real estate of the defendants in error on Burnet avenue in said city, to public use for hospital purposes, and thereafter the said council passed the necessary ordinance directing the appropriation of said property to proceed. Thereafter, an application was filed in the Insolvency Court of Hamilton County, on January 27, 1912, to assess the compensation for said property, and such proceedings were thereafter had that on June 10, 1912, the jury returned a verdict assessing the value of the property of defendant appropriated at $28,200. On this verdict a judgment was duly entered September 28, 1912, finding the proceedings regular and according to law and that the defendants, Frances D. Jones and Frank J. Jones, were the owners of said real estate and the several interests therein, subject to such claims of the auditor and treasurer of Hamilton county, for taxes * * * as may be finally adjudged payable out of the compensation adjudged therefor; the verdict was confirmed, and the city of Cincinnati was ordered to pay the clerk of the court, or to said defendants or their attorney the amount of the compensation assessed for the use of said Frances D. Jones and Frank J. Jones, and to the treasurer of Hamilton county and the auditor of Cincinnati the taxes which were unpaid and a lien on the property; and that upon payment as aforesaid the city of Cincinnati shall be entitled to all the interest and estate in and to the possession of said lots and lands, and that an order issue to the sheriff to put the city of Cincinnati in possession of said property and said interests. The city was adjudged to pay the costs. Thereupon, on the same' day, September 28,1912, the city paid to Frances D. Jones and Frank J. Jones $27,700 of the compensation money, and $500 it paid to the clerk of the court to await the order of the court as to the payment of the taxes on the property for the year 1912. On final hearing on the question of the payment of the taxes for the year 1912, the court of insolvency held that no part thereof should be paid out of the compensation money awarded for the property, and that on distribution the treasurer of Hamilton county was not entitled to receive any sum on account of the taxes on said property for the year 1912 and which amounted-to $357.50, but that the entire compensation awarded by the jury and the court should be paid to the defendants in error.

To this judgment on distribution the city of Cincinnati and the treasurer of Hamilton county excepted, and have brought the case into this court claiming that said judgment or order of distribution' was erroneous, and that the court should have ordered said taxes for the year 1912 paid out of the sum awarded for the property.

The right of the municipality to take or appropriate private property for public purposes is derived from the provisions of the Ohio Constitution, Section 19, Article I, Bill of Bights, which among other things provides that for private property taken for public use, when not taken in time of war or other public exigency imperatively requiring its immediate seizure, or for the purpose of making or repairing roads, etc., a compensation shall first be made in money or secured by a deposit in money.

The case under consideration, therefore, required compensation to be either paid or secured in money before the property could be taken or appropriated.

The legislation authorizing council to proceed to appropriate the property is found in Sections 3677 to 3697 inclusive, of the General Code. The property was not appropriated by the adoption of the resolution declaring the intention to appropriate, nor by the adoption of the ordinance directing the appropriation to proceed. A reference to Sections 3679 and 3680, General Code, discloses that council is thereunder authorized to declare the intent to appropriate and not to appropriate; and the ordinance to be passed is one directing the appropriation to proceed.

We are of the opinion that no appropriation can be made or fully completed, such as the one made in the case at bar, until there has been full compensation paid or secured to be paid for the property. In this case the appropriation was not completed until September 28, 1912, when the money was paid over by the city. Up to that date the title to the property vested in the defendants in error, and did not pass to the city or vest in it until September 12, 1912. Section 3691, General Code; Wagner v. Railway Co., 38 O. S., 32, 36; Garvin v. Columbus, 5 N. P., 236.

This conclusion would appear to be unquestioned, if we consider that by the provisions of Section 3697, General Code, the municipality has six months within which to decide whether or not it will take the property at the valuation fixed by the jury. If it fails to pay the assessed value or to take possession of the property within six months from the date of the assessment of the value, its right to make the appropriation on the terms of the assessment shall cease, and the judgment and order of the court shah cease to be of any effect, except as to costs, which must be paid by the municipality whether it takes the property or not. The defendants then, being the owners of the property and having the title thereto up to September 28, 1912, were they liable for the taxes for the year 1912, and were these taxes a lien on this property on that date when the city became vested with the title thereto?

Under Section 567.1, General Code, the lien of the state for taxes levied for all purposes, in each year, shall attach to all real property subject to taxation on the day preceding the second Monday of .April, annually.

If this property on the day preceding the second Monday of April, 1912, was the private property of the defendants in error, as we have found that it was, then there appears nothing in the record to indicate that it was not subject to taxation. It was not exempted from the payment of taxes. But did the lien attach on that date for county, city and school taxes, as well as for taxes purely for state purposes? We think the question must be answered in the affirmative, under the decision of the Supreme Court in State, ex rel Donahey, Auditor, v. Roose, Auditor, 90 O. S., 345. On page 351 the court says:

“It is further insisted on behalf of respondent that by reason of Section 5671, General Code, this tax can not be legally levied for the year 1913 because that section provides that ‘ The lien of the state for taxes levied for all purposes in each year shall attach to all real property subject to such taxes, on the day preceding the second Monday of April, annually.’ This same objection would apply with equal force to all taxes levied for state and local purposes and made after the date preceding the second Monday of April each year. The fact is that practically all .levies, especially those for local purposes, are made after this date. Section 5627, General Code, directs the county commissioners at their March or June session to determine the amount to be raised by taxes. Section 5646, General Code, directs the township trustees to determine on or before the 15th day of May annually the amount of taxes necessary for all township purposes, and Section 5649-3», General Code, directs that on or before the first Monday in June of each year the county commissioners of each county, the council of each municipality, the trustees of each township, each board of education and all other boards or officers authorized to levy taxes within a county, except for state purposes, shall submit or cause to be submitted to the county auditor an annual budget; and under the provisions of Section 5649-36, as amended February 16, 1914, the budget commissioners are not required to complete their work until .the third Monday of August. ' While Section 5671, General Code, fixes the date in each year that the lien of the state for taxes shall attach, yet it by no means follows that this requires that the tax levy shall be made on or before that date. In fact, all the legislation upon that subject is in direct conflict with such a construction. On the contrary it is clear that the amount of such taxes is to be subsequently determined and such assessment then relates back to the date at which the taxés became a lien. This question is fully discussed and the correct conclusion reached in the ease of Loomis, Trustee, v. Von Puhl et al, 2 N.P.(N.S.), 423.”

The decision referred to by the Supreme Court and approved by it was rendered by Judge Hollister when on the common pleas bench of this county, and an examination of the decision will disclose that it does fully discuss the question under consideration and the conclusion reached is in accord with the opinion of the Supreme Court in the above entitled case.

But it is claimed by counsel for the defendants in error that the rule applicable to judicial sales is the proper rule to apply in condemnation proceedings in making an order as to the payment of taxes, and the cases of Eaglen v. Cohen, 30 O. S., 436; Markley v. Whitmore, 61 O. S., 587, are cited in support of their contention. These decisions were rendered under a construction of Section 5692, General Code, which provides that when land, held by tenants in common, is sold upon proceedings in partition, or real estate is sold at judicial sale, or by administrators, executors, guardians or trustees, the court shall order the taxes and penalties and the interest thereon against such lands, to be discharged out of the proceeds of such sale.

Now it will be observed that condemnation proceedings do not come under tbe provisions of this section, and we do not feel that we would be warranted in extending the provisions of this section to condemnation proceedings. Such proceedings are purely statutory, and it can not be said that appropriation proceedings involve the judicial sale of lands. There is no sale by order of court in condemnation proceedings and it would amount to judicial legislation to hold that by analogy the provisions for the payment of taxes in cases of judicial sales should be applied to proceedings to appropriate lands for public uses. Therefore, we are of the opinion that the rules laid own in these eases cited by counsel for defendants in error do not apply.

As to the point that the county treasurer was not made a party to the proceedings until after the money was paid over, we are of the opinion that it was not necessary that the county treasurer should have been made a party at any stage of the proceedings. He was simply the ministerial agent of the state to receive the taxes, and it was the duty of the court to see that the state taxes were paid out of the proceeds on distribution, and the lien for taxes is not divested by condemnation proceedings. Lewis on Eminent Domain, 3d Ed., Section 524; State v. Mo. Pac. Ry. Co., 75 Neb., 4; State, ex rel Trust Co., v. Godfrey, Aud., 20 C. C., 649.

The city of Cincinnati was entitled to have the property appropriated clear and free of all encumbrances including the lien for taxes which had attached when it took possession of the property. It was entitled to have what it bargained for under its proceedings to appropriate — an absolute fee simple title, dear and free of liens and encumbrances. In re Sleeper, 62 N. J. L., 67.

If it were required to pay the taxes in addition to the condemnation money, then it would be paying for the property more than the amount awarded to the owners by the verdict of the jury. The property could not be placed on the exempted list when the city acquired it on September 28, 1912, until.it had first satisfied the then existing lien for the taxes for the year 1912.

We are therefore of the opinion that the court of insolvency erred in not ordering the taxes for the year 1912 to be paid out of the funds in the hands of the clerk held to determine the question of the payment of the taxes; and for such error the judgment is reversed and the judgment which that court should have rendered will be entered in this court.

Jones (E. H.),'P. J.; and Jones (Oliver B.), J., concur.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    OWNERSHIP OF LAND TAKEN IN NAME OF ATTORNEY OF THE CORPORATION WHICH ENTERED INTO POSSESSION.
    Court of Appeals for' Licking County.
    Harry H. Baird v. The Jewett Car Co.
    Decided, October Term, 1915.

      Title — Land Purchased by Attorney But Used by Corporation — Stock Issued to Attorney Claimed to Have Been in Payment for the Land.

    A purchase of land by one who in other matters was acting as the attorney and agent of a corporaton which at once took possession of the land, will be regarded as having been made for the corporation notwithstanding title was taken by the attorney in his own name, where the corporation thereafter issued stock to the attorney in an amount in face value somewhat exceeding the price of the land and remained in undisputed possession for more than ten years without any claim having been made by the said attorney on account of the land or any attempt to collect rent for its use; and an action to recover possession of the land, brought by one to whom it was conveyed by the said attorney and who had full knowledge of all the circumstances surrounding its purchase by the attorney will be dismissed and title established in the corporation.

      Fitzgibbon, Montgomery ¡c& Black, for plaintiff.

      Kibler & Kilber and Flory & Flory, contra.
   Powell, J.

This cause is in this court by appeal from the judgment of the court of common pleas.

The plaintiff filed his petition in that court alleging that he was the owner of certain described lands in fee simple, and entitled to the possession thereof, and that the defendant, which is a corporation organized under the laws of West Virginia, unlawfully keeps him out of possession thereof.

Plaintiff prays judgment for the recovery of possession of said lands, and all other proper relief.

To this petition an answer and cross-petition was filed in which the defendant admits that it is a corporation under the laws of West Virginia, and in possession of the real estate in the petition described, and denies each and every other allegation therein contained.

For cross-petition the defendant alleges that in December, 1901, it employed one Frederic M. Black, as its attorney and agent, to purchase for it the real estate described in the petition, which was then owned" by one Samuel F. Van Voorhis, and furnished him with the sum of $2,500 of the capital stock of defendant, with which he was to purchase said lands, and which he received for that purpose; that with the said stock or the proceeds of the sale of same, said Black purchased the said real estate of said Van Voorhis for the price of $2,300; that, without the knowledge or consent of defendant, he caused the legal title to said real estate to be taken in his own name; that on the date of the conveyance from Van Voorhis to Black, viz., on or about the 23d day of October, 1903, it obtained possession of said real estate, and ever since then it has had sole and exclusive possession of the same under said transaction and contract of purchase, and has used the same as a part of its manufacturing plant.

It is alleged that $1,000 of the $2,500 of capital stock of defendant so furnished said Black, was issued by it, at Black’s request, to the plaintiff Baird to reimburse him for money furnished at the request of said Black towards the purchase of said real estate, and it avers that there was no other consideration for the sale and delivery of said stock to the plaintiff Baird, and the residue of said stock, in the sum of $1,500, was issued by defendant to said Black on or about the said time on account of said transactions, and on no other account. It is further alleged that Black and wife, on the 4th day of December, 1911, conveyed said real estate to plaintiff for the pretended consideration of $1, but it avers that plaintiff, at the time, had full notice and knowledge of the rights of this defendant in the premises, that it was in possession under claim of full title thereto in equity, and that Black had no title, and that plaintiff acquired no title under said deed, and is not entitled to possession of said real estate as averred in the petition, but that on the contrary it was entitled to have the deed for said real estate from Black to Baird canceled and set aside, and its title thereto quieted against any right, title or interest that plaintiff might have therein, and prays accordingly.

For a second cross-petition defendant adopts all the allegations and averments of its first cross-petition, and alleges that there was no consideration for the execution of the said deed from Black to plaintiff, which is recorded in Volume 218 of the deed records of this county, at page 309, and further alleges that it has performed all the conditions on its part to be performed in the purchase of said real estate, and is entitled to a conveyance therefor.

For reply to the two cross-petitions, plaintiff admits that defendant is in possession of said real estate, and that on the 4th clay of December, 1911, Black and wife executed a deed to plaintiff for said real estate and denies each and every other allegation in said two cross-petitions contained, and prays judgment as in the petition.

Trial was had on the issues thus joined and an appeal taken to this court, where the cause was heard on a transcript of the evidence offered in the court of common pleas, supplemented by some additional oral testimony.

It will be observed that the issue and the only- issue presented for determination is the ownership of the lands described. Black’s rights are not before the court in any way save as his testimony tends to throw light on the question in controversy. The evidence offered is very conflicting in many particulars, but there is such a preponderance in the main evidentiary facts as to convince the court with practical unanimity of the correctness of the conclusion reached.

To state the claims of the parties a little more concisely than they are stated in the pleadings, we have the plaintiff with the legal title to the lands in controversy, by waranty deed from Frederic Black and wife of date of December 4, 1911, and claiming the right to immediate possession of the same.

The defendant is in possession of said lands and had been so in possession some eight or ten years when the petition was filed. It claims to own the lands in controversy by an equitable title, arising from the fact that it furnished the purchase price of the same to the said Frederic M. Black as its agent, to purchase said lands in its.name and for its benefit; that said lands were so purchased by Black for its benefit from Samuel F. Yan Yoorhis, who is stipulated to be the common source' of title to both parties, and that Black took the legal title in his own name, without its knowledge or consent. The purchase price claimed to have been advanced by defendant was $2,500 of its capital stock at its par value, $1,500 of which was issued to Black individually and $1,000 to plaintiff at Black’s direction, to credit upon money advanced by him- at Black’s request on the purchase price of said lands from Yan Yoorhis. Both parties claim to own the lands in dispute, and are contesting to determine which of their respective claims is the stronger, as a party claiming disputed lands must rely on the strength of his own title and not on the weakness of his adversary. Black’s own' claims are probably the most important in the whole transaction, but they are not before the court, only as they become competent and relevant as testimony throwing light on the subject of dispute between the parties to this action.

Black admits the receipt of the $1,500 of stock and the issue of $1,000 more to Baird, that was not paid for in any other way than by credit to him on money advanced on the purchase price of said lands from Yan Yoorhis, but he claims that the issue of $1,500 to him was on his own account, and in payment of an account held by him against the defendant, and that he had subscribed for the said stock with the distinct understanding and agreement that it was to be paid for by credit upon the account due him from the car company for services rendered. This is denied by the defendant.

The whole controversy grows ont of .the double agency, or dual relationship of Mr. Black to this transaction. . .

The undisputed evidence shows that Black was, at the time possession of the land was taken by defendant, its general agent and attorney. His account for services, and the testimony generally shows this to be true. Possession of said lands was taken by defendant almost immediately after the execution of the deeds by Yan Yoorhis, and has been retained by it ever since that date without objection by Black or claim by him for rents.

This is the most significant and determinative fact in the whole record, and is the principal basic fact for the conclusion reached by the'court. "Possession is nine points of the law” in cases of this kind. Without pursuing the. discussion further, it will be sufficient to say that, from the whole evidence, we find that Black acted as the agent of defendant in the purchase of the lands in controversy; that his purchase was for its use and benefit, and that defendant is the owner in equity of the same, and entitled to the relief prayed for in its cross-petitions. We find also that the plaintiff took title to the premises with full knowledge of the facts in relation thereto, and in addition to this he was bound, as a matter of law, to know the rights of the party in possession at the time he so took title to the premises in dispute.

The petition will be dismissed and a decree entered for defendant on its answer and cross-potitions as prayed for. Exceptions may be noted.

Shields, J., and Houck, J., concur.


text:
    CONTRACT OF SALE REPUDIATED BY BILLING AT ADVANCE IN PRICE.
    Circuit Court of Cuyahoga County.
    The Standard Tobacco & Cigar Company v. Leopold Loeb & Company.
    Decided, January 20, 1902.

      Contracts — Plaintiff May Not Recover Upon a Contract Which He Has Repudiated.

    Where a vendor ships goods to a vendee and bills the goods so shipped at a price in excess of that specified in the contract of sale, and refuses to correct the invoice or recognize the existence of a contract to sell at the price actually agreed upon, he thereby repudiates the contract made, and if the vendee refuses to accept the goods there can be no recovery even at the agreed price.

      Gilbert & Hills, for plaintiff in error.

      Brewer, Cook & McGowan, contra.
    Hale, J.; Caldwell, J., and Marvin, J., concur.
   The plaintiff in error, hereafter designated as plaintiff, is an Ohio corporation having its principal place of business in the city of Cleveland, Ohio.

The defendant in error, hereafter designated as defendant, is a partnership doing business in the city of Philadelphia, Pennsylvania.

The cause of action upon which the defendant obtained a verdict and judgment, is as follows:

“Plaintiffs for their cause of action say, that they are partners under the firm name and style of Leopold Loeb & Company, doing business in the city of Philadelphia and the state of Pennsylvania; that the defendant is a partnership organized and doing business under the laws of Ohio; that there is due plaintiff from defendant on an account, a copy whereof is hereto attached, marked Exhibit A., and made a part hereof, the sum of $584.76, with interest thereon from the 31th day of May, 1895; that said account is for goods sold and delivered as set forth in said Exhibit A, and that the same is now fully due and unpaid.”

Reference to the exhibit discloses the fact that the cause of action was for fifteen cases of Little Dutch Tobacco sold by the defendant to the plaintiff at and for the price of eleven cents per pound to be delivered f.o.b. Philadelphia; the total weight of the fifteen cases being 5,316 pounds; payment to be made five months from date of sale.

•The answer was a general denial and, upon the issues thus made, the case went to trial.

The contract was made on November 16, 1894, and the goods shipped by the Baltimore & Ohio Railroad ’ Company January 10, 1895.

It appears from the bill of exceptions that the alleged purchase of this tobacco by plaintiff was made by its agent, Henry E. Boesger, at the place of business of the defendant in Philadelphia.

The contract, if made, was for fifteen specified cases of tobacco then in the warehouse of the defendant, which were designated and examined by the plaintiff’s agent. It was subsequently discovered that one of the cases, then designated, had been previously sold, for which another case was substituted by the defendant.

The plaintiff claims that the defendant not having delivered to the common carrier the identical cases sold, had not complied with their contract, and for that reason could not recover in this action.

This would be true unless the plaintiff had, before the shipment, consented or waived its right to object to such substitution. Whether such consent or waiver had been given was a question of fact to be determined by the jury. Upon this subject the jury were properly instructed. The evidence from which the jury found that such waiver had been made, was by no means conclusive, but was such that the verdict should not be disturbed and the judgment reversed for the reason that such finding was not supported by sufficient evidence. Whether the title passed to the purchaser before it had an opportunity to examine the goods substituted, is another question.

It further appears from the record that the defendant on the 10th day of January, 1895, delivered to the Baltimore & Ohio Railway Co. fifteen eases of tobacco, one of which was the case substituted as above stated, to be shipped to the plaintiff in Cleveland. At the same time the defendant wrote to the plaintiff, ■ enclosing an account of the tobacco at eleven cents per pound. This letter bears date January 10, 1895, and reads as follows:

“Enclosed please find invoice for fifteen cases of leaf tobacco shipped today by B. & O. R. R. as per order of Mr. Boesger.
“Thanking you for your order, and soliciting your further patronage, we are,
“Tours truly,
“Leopold Loeb & Co. “P.S. — Sample sent by express prepaid.
“L. L. & Co.”

On the receipt of this letter and invoice, the plaintiff replied as follows:

“Cleveland, Ohio, Jan. 13, 1895. “Messrs. Leopold Loeb & Co.,
“Philadelphia.
“Gentlemen: Mr. Boesger reported these goods bought at seven cents. Correct the bill, or they will be subject to' your order. ’ ’

To this letter, there was' no reply.

On the 17th of January, 1895, the plaintiff again wrote to the defendant:

“The fifteen cases of Little Dutch are at the depot awaiting the reply to our letter regarding the price.”

On the 18th of January, 1895, the defendant, in answer to the plaintiff’s letter of the 17th, wrote:

“We sold the Little Dutch to Mr. Boesger at eleven cents per pound marked weight. Knowing Mr. Boesger to be hard of hearing, we told him distinctly and as loud as we could talk, the price above mentioned, in presence of three people. Had the price been seven cents, we would not charge you eleven cents, as we do not do such business.”

On the 19th of January, 1895, the plaintiff, answering this letter, wrote to the defendant:

“Mr. Boesger reported the purchase of the Little Dutch at seven cents per pound and so entered it on stockbook. We can not use the tobacco at price billed, and would only accept it at the price named, seven cents.
“The shipment is at your disposal. We will refuse it.”

One of two propositions is true; Either the minds of "the parties did not meet upon the terms of the contract of sale and there was no contract made by them; or one of the parties was insisting upon a contract known not to have been made, for, manifestly, no contract was made without the knowledge of both parties. .

The jury found that the minds of the parties did meet and an agreement was made for the sale of the tobacco at seven cents per pound.

The court, in substance, charged the jury that defendant was entitled to a verdict if they found the parties agreed upon the price of the tobacco at either eleven or seven cents per pound.

It is not doubted that if one sues for goods sold, delivered to, and accepted by the purchasers at an alleged contract price, and the evidence shows that the contract price was less than that alleged, a recovery may be sustained at the less price.

It is established by the verdict of 'the jury that the defendant sold this tobacco for seven cents per pound and then shipped to the plaintiff, under an assumed contract of eleven cents per pound, and so notified the plaintiff by bill rendered and, on request, refused to correct the bill rendered and insisted that the contract price was eleven cents. The plaintiff then refused to receive the tobacco and so informed the defendant.

Under all the circumstances of this case we think the plaintiff was fully justified in refusing to receive the tobacco.

It is said that the tobacco, under the terms of the contract, was to be delivered by the seller f.o.b. Philadelphia, and when so delivered, the title passed to the plaintiff, and, thereafter, the rights • of the parties must be settled in accordance with the contract.

In general, a delivery to a carrier for account and risk of the consignee, is, in law, a delivery to the latter and a contract of sale complete by such delivery; but to pass title to the purchaser by such delivery it must be in exact compliance with the terms of the contract. A delivery to the common carrier under some other contract than the one made, was not a delivery to the plaintiff. Quantity, quality and price are essential elements of a sale, and a shipment of tobacco, varying in any of these essentials from the contract made, was not a shipment under such contract.

By shipping at eleven cents per pound, the defendant repudiated any other contract. Especially is this true since the defendant expressly denied that a contract had been made at seven cents, or that a shipment had been made at that price before the shipment of goods reached the plaintiff.

The plaintiff denied that a contract of sale had been made at eleven cents.

The plaintiff was right in this claim; the defendant was wrong.

A reference to the correspondence will show that the defendant in most express terms repudiated the contract made, and insisted upon one entirely different. The result of this was to release the plaintiff from its contract. The defendant was the first to refuse performance of its contract, and thereafter was in no position to enforce it against the plaintiff. Had the defendant accepted and relied on the contract actually made, there would have been no contention between the parties.

The whole controversy arises out of the attempt of defendant to enforce a contract never made. But whether the claim made by the defendant was, in fact, a repudiation of its contract and should so be held as a matter of law, it is quite clear that such claim fully justified the plaintiff in 'refusing compliance on its part.

Again, it seems to be definitely settled that if fifteen cases of tobacco ordered by the plaintiff of the defendant, to be shipped f.o.b. and of a certain quality, without any specification or designation of the goods purchased, the title would not pass on shipment until the purchaser had an opportunity of inspecting the goods.

In this case the goods actually purchased were not delivered to the purchaser. Other goods were substituted for one case of tobacco purchased; .this was done without any express agreement of the part of the purchaser. The most that can be claimed in behalf of the defendant is that there was a waiver by plaintiff of the right to object to such substitution. But surely the plaintiff had the right to examine the substituted goods, that it might determine for itself whether the goods substituted were of the same quality as those purchased, before title passed to it under the contract.

It would, therefore, seem unjust and unreasonable to hold that the title to this property passed to the plaintiff by delivery to the common carrier under the circumstances disclosed in the evidence. The defendant should not be permitted to repudiate the contract made, refuse the offer of the plaintiff to comply fully with the exact terms of sale, and then, when beaten in this wrongful attempt to enforce a different agreement than the one made, be permitted to recover on a contract which it had expressly repudiated. Our judgment is that upon this subject the charge of the court was misleading and, therefore, erroneous. We find no other error in this record.

The judgment of the court of common pleas is, therefore, reversed, and the cause remanded for further proceedings.


text:
    KNOWLEDGE OF DIRECTOR. OF AFFAIRS OF COMPANY.
    Circuit Court of Cuyahoga County.
    N. P. Bowler v. Robert Garland, John W. Garland and Catherine G. Bailey, Partners Trading under the Name and Style of The Garland Chain Company.
    Decided, March 18, 1901.

      Corporations — Director Chargeable with Notice as to Financial Condition of Company and Its Business.

    A director of a corporation is conclusively presumed to have knowledge of the financial condition of the company and of the existence and non-performance of a contract of the company which he has guaranteed; he, therefore, can not defend an action upon such guaranty, "upon the grounds that he was not given notice of default on the part of the company until it had become insolvent, or that the time for the performance of the contract had been extended without his knowledge or consent.

      'White, Johnson, McCaslin ■& Cannon, for plaintiff in error.

      Louis J. Grossman, contra.
    Caldwell, J.; Marvin, J., and Hale, J., concur.
   On tbe 6th of June, 1895, the Garland Chain Company entered into a contract by which the Cady Manufacturing Company agreed to furnish two machines for making chain — one for making Eureka chains, and one for making pump chains. The machine for making pump chains was furnished, and this litigation-does not pertain to that machine.

For the Eureka chain machine, $1,010 was to be paid. It seems that this was not a known machine, but it involved invention, and there seems to have been some doubt in the minds of the contracting parties as to just how soon the machine could be furnished.

The contract provided that the party to receive the machine was to pay at certain times certain money upon the contract and, if the machine was not furnished according to the contract, then this money was to be paid back, and N. P. Bowler guaranteed the fulfillment of the contract as to paying back the money, in the following words:

‘ ‘ I hereby guarantee that in event of a non-fulfillment of this contract as relates to machine for making Eureka chain, that all money paid in advance on the machine for making the Eureka chain will be returned.”

The Eureka Chain Company was insisting upon a more speedy fulfillment of the contract, and the time in which the contract was to be completed had passed, and the parties were corresponding in regard to- the matter; the Eureka Chain Company insisting upon having the machine, and the other party delaying, until finally on the 18th of June, the Cady Manufacturing Company sent this telegram:

“Working hard on machine. Probably thirty .days. Have written. ’ ’

And on the same day they wrote this letter:

‘ ‘ The way it looks to me now, I have no doubt but we will be able to fully complete the machine inside of thirty days from date. We think, in fact, we know you will be repaid for all of your vexation and worry when you receive this machine and get it running in your shop.”

And on June 18th, 1896, the Garland Chain Company answered the above telegram as follows:

“Your telegram is just received. This telegram is about the twelfth promise you have made of precisely the same nature. We will give you thirty days now to complete the contract and in case the same is not then in such shape that we can know definitely you are working on it with some progress, we will put the matter in the hands of another party and see why a persoli can enter into a contract without regard to its terms or conditions. ’ ’

Mr. N. P. Bowler was the grandfather of Mr. George IT. Bowler, and he was an owner of stock in the company, and the evidence shows that he was a member of the board of directors, but rarely attended the meetings and knew nothing of the progress being made on the machines.

It is claimed that the evidence shows that at the time the machine should have been completed in November, 1895, and for months afterwards the Cady Manufacturing Company was solvent, and had notice been given Mr. Bowler at that time of the failure of the Cady Manufacturing Company to fulfill its contract, that he could have saved himself from the loss upon his guarantee. And it is claimed he got no notice of such failure to comply with the contract until after the Cady Manufacturing Company had become insolvent, and that whatever he must pay upon this contract, will be a loss to him as he can never make it good with the company. It is claimed from this evidence that Mr: Bowler was discharged:

First, by failure to notify him of the default of the company;

Second, by the extension of time, or rather, as it is called, the making of the neto contract in June, 1896, at which time the Garland Chain Company made an offer to the Gady Manufactoring Company to extend the time thirty days;

Third, it is claimed that there was error on the part of the court trying the case, in rulings upon the evidence, to the prejudice of the plaintiff in error; and,

Fourth, that even if Mr. Bowler is liable, the judgment was for too large an amount.

I will consider these complaints in the order in which I have named them.

The first is, that Mr. Bowler was prejudiced by not being notified of the failure of the Cady Manufacturing Company to perform the contract within the time limited by the contract, and that by delaying to serve him with such notice until the company became insolvent, he is discharged from his obligation.

Although Mr. N. P. Bowler was a director in the Cady Manufacturing Company he did not attend the meetings of the company except on very rare occasions, and did not have any notice of the solvent or insolvent condition of the company, nor have any notice of the non-fulfillment of this contract.

This was a matter that' pertained from first to last to the duties of the directors of the company. It was not a mere matter of business, as shown by the books of account of the company, but pertained to a contract made by the company and, hence, presumed to be made by the directors of the company, and they were charged with the duty of seeing that it was fulfilled, and of knowing when it was fulfilled. The question to be considered under this head is whether Mr. Bowler must be held to have knowledge of this class of business which pertained to the duties of the directors of the company.

In Merchants’ Bank v. Rudolf, 5 Neb., 527, 540 and 541, the judge delivering the opinion quotes this language from Morse on Banks and Banking at 90 and 91, and especially on page 115:

“Whatever knowledge a director has, or ought to have, officially, he has, or will be conclusively presumed at law to have, as a private individual. In any transactions that the bank, either on his separate account, or where others are so far jointly interested with him that his knowledge is their knowledge, he and his joint contractors will be affected by this knowledge which he has or which he ought, if he had duly performed his official duties, to have acquired.” Citing Lyman v. U. S. Bank, 12 How., 225.

Then, applying the law to the case before the court, the court say:

“Rudolf and Deck were co-partners and as such signed the note in question. It is a settled rule that notice to one member of a firm is sufficient to bind all the other members. Rudolf was also an active member of the board of directors of the bank and it was his duty to know whether this note was paid or not. The conclusive presumption is that, as a director, he knew it was not paid; this knowledge is chargeable to him as a private person, and also as a member of the firm of A. C. Rudolf & Company.”

In Martin v. Webb, 110 U. S., 7, in speaking of how far the bank was bound by the conduct of its officer, the court say:

“When during a series of years or in numerous business transactions, he (the officer) has been permitted without objection and in his official capacity, to pursue a particular course of conduct, it may he presumed, as between the bank and those who in good faith deal with it upon the basis of his authority to represent the corporation that he has acted in conformity with instructions received from those who have the right to control its operations. Directors can not, in justice to those who deal with the bank, shut their eyes to what is going on around them. It is their duty to use ordinary diligence in ascertaining the conditions of its business, and to exercise reasonable control and supervision of its officers. They have something more to do than, from time to time, to elect officers of the bank, and to make declarations of dividends. That which they ought, by proper diligence to have known as to the general course of business in the bank, they may be presumed to have known in any contest between the corporation and those who are justified by the circumstances in dealing with its officers upon the basis of that course of business.”

In German Savings Bank v. Wulfehuhler, 19 Kans., 60, the first paragraph of the syllabus is:

“A person who holds the office of director and vice-president of a bank and at the same time has private and personal dealings with the bank, is conclusively presumed to know (so far as the same affects his said personal dealings), the general condition and management of his bank, and to know everything of importance that occurs therein, either at the time it occurs, or soon thereafter. ’ ’

The court, on page 63, at the bottom, use this language:

“While we assume, as a matter of fact, that the defendant knew nothing of the condition or management of said bank, yet still as a matter of law we think we must presume that he knew all about these matters. ITe was a director and the vice-president of the bank, and it was his duty to have such knowledge, and, therefore, the law will conclusively presume that he had it.”

And as dealing very directly upon the knowledge of solvency and insolvency so far as that may be involved, I refer to the ease of Lowry Banking Company v. Umpire Lumber Company, 91 Ga., 624, where this language is used:

“As it is the duty of the directors of a corporation to be informed of its condition with reference to solvency or insolvency, they are to be treated as having that knowledge when a mortgage upon its assets is executed with their assent or by their authority.” Lane & Co. v. Bank of West Tennessee, 9 Heiskell, 439-437.

In Greenville Gas Co. v. Reis, 54 O. S., 549, the court say:

“A director of a corporation dealing in its property on his own account, is chargeable with notice of the action of the board of directors as to such property, whether he was present or not at the meeting which took such action.”

In this case, a bond was delivered by the board of directors to the president of the corporation in trust for sale, and it was held that the president had no right to convert such a bond to his own use in payment of a claim due him from the corporation. He assigned this to two parties, one of whom was a director and the other a stockholder in the company issuing the bond; the action taken by the corporation in placing the bond in the hands of the president was not known to Reis .and he was not present at the meeting when the action was taken by the board of directors and hence he claimed that he stood in the light of an innocent purchaser for value and without notice of the trust. It seems that they had taken this as collateral security to indemnify them against loss as sureties of John Dover, to whom the bond had been transferred. Shuffleton was a director, and Reis was a stockholder, and the record shows that Mr. Shuffleton was not present at the meeting at which the resolution was passed authorizing the issuing of the bonds, and the court holds that that does not aid him. The court says:

“When it comes to dealing in the property of a corporation, the director is charged with notice of all that has transpired at the meetings of the board of directors. He is not allowed in such case to plead ignorance or want of notice or knowledge. ’ ’

And in laying down the law of the case, the court cited 19 Beav., 97, the substance of which is:

“As regards the directors of a company the case stands on a totally different footing from where it does where the party is a stockholder. A person, when he becomes a director, accepts a trust which he undertakes to perform for the benefit of the company. If in the due performance of that trust, he must necessarily have acquired certain knowledge, it appears to me but fit that he should be charged with the knowledge of those facts which it was his duty to have become acquainted with. It is merely saying that a person shall be held to know that which it was his bounden duty to know. It appears to me that Mr. Brown was bound to know what took place at the meetings of the board of directors, of which he was a member."

And Mr. Brown in that case ivas held to have such knowledge.

There are many other cases in which this doctrine has been laid down and applied to the facts in the case; and from this law we are satisfied that, in law, Mr. N. P, Bowler must be held in this ease to have had knowledge of the existence of this contract, of its non-performance, and of the correspondence that took place in regard to its non-performance after the time in which it was to be performed by the terms of the contract; and that he must be presumed to have knowledge of the financial condition of the company at all times involved in this litigation, and according to these authorities, this presumption is one that is conclusive upon him, one that he can not deny, and if this is the law of the case, then the errors complained of as to the rulings of the court on the introduction of testimony are immaterial, as they can in no way affect the conclusion of the law to be drawn in the case at bar. But it is contended by Mr. Bowler that there was an extension of time, which extension took place without his knowledge and without his consent.

The above authorities lead us to the conclusion that, in law, Mr. N. P. Bowler did have notice as to the continuance of the time for the fulfillment of the contract, and there is plenty of law which we have seen and examined, going to show that if he is present or not present at the meeting in which a board performs an act and he does not show that he did not assent to that act and that he was not present, that the presumption will be that it was by the assent of the entire.board; and upon.these authorities, we are of the opinion that if there was an extension of time in this ease, it would be no defense to Mr. Bowler and that he would be presumed to have assented to the same.

Although this business was not transacted, by the board of directors, yet if it was making a new contract, or an extension of a contract, or an extension of’time in the contract already made, it, is the business of the board of directors, and while they may delegate the authority to do that business to other officers of the company, yet, in law, they are presumed to have done it themselves, and whatever knowledge they, or any one of them, would have obtained in the performance of that business, they will be charged with such knowledge in questions arising out of the same. If there was a new contract in this case, and supposing that the directors themselves had made that contract, then each director, whether present or not at the time of taking such action, would be presumed to know what was done at .that meeting, and this is a conclusive presumption and, if nothing to the contrary is shown, it will be presumed that all the directors assented to such-action and, if Mr. Bowler assented to the continuing of the time of the fulfillment of this contract, either by an extension of such time, or by a new contract, we think the law is that he will be held to have assented to such extension of time. But we fail to see any agreement in the evidence for an extension of time. I have referred to the correspondence relating'to such extension as is claimed — and this contract or this extension was entirely in correspondence — and I have made such reference in view of what I now have to say.

First a telegram was sent, suggesting that- thirty days would be time enough to complete the contract. To that the Garland Chain Company answered that they were willing to give them an extension of thirty days in which to complete the contract. There is nothing in the evidence to show that the Cady Manufacturing Company had asked for thirty days, nor is there anything showing that they agreed to complete the contract in the thirty days. All that we find is suggestion that thirty days would be sufficient, and an offer to give that thirty days; nothing so direct as to show that the Cady Manufacturing Company had anywhere bound itself to complete the contract within the thirty days, nor to show that they had even asked for an extension of thirty days. ITence, under that state of facts, when the Garland Chain Company offered to give the thirty days, in order to make a binding contract it would be necessary for-the Cady Manufacturing Company to accept that proposition. We see no acceptance in the bill of exceptions of that proposition, nor anything that may imply an acceptance.

The evidence complained of was introduced as bearing upon the question of notice, and, as we hold that N. P. Bowler had notice, as a conclusion of law, from facts not disputed in the record, such errors, if there were any, are not prejudicial.

There is an error in the judgment of the common pleas court in that Mr. Bowler is charged with too much interest. The testimony in the case shows that the Garland Chain Company was doing all it could to have this contract fulfilled, long after the time of expiration of the contract by its terms, the 6th day of November, 1895, and they made no demand upon Mr. Bowler, or anything that could be construed as a demand, until the fall of 1896, nor is there anything in the record to show that before that time they made-any call for the return of the money they had paid and hence the money would not be due until about that time. December 8th, 1896, the Garland Chain Company wrote a letter to N. P. Bowler in which they say that they have been informed of the assignment of the Cady Manufacturing Company and ask for the return of the money paid to it. Up to that time the Garland Chain Company was exercising patience with the Cady Manufacturing Company and trying to get the machine, instead of having the money returned, and, until then, there was no notice to any one that they demanded the return of the money, and, interest should commence to run on the amount advanced by the Garland Chain Company from the 8th of December, 1896, and the judgment of the court below is modified so as to exclude all and any interest prior to that date.

With this modification the judgment of the court below is affirmed.


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    AS TO WHETHER. A LAW IS OF A GENERAL NATURE.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel Daniel Gindelsperger, v. Robert C. Wright, Auditor.
    Decided, June 26, 1904.

      Constitutional Law — Law to Compensate an Individual Not a Law of a Q-eneral Nature.

    Daws passed in the fulfillment of an obligation of the state or any of its agencies to an individual with respect to past transactions, are not laws of a general nature controlled by Section 26 of the Constitution of Ohio.

      G. A. Neff, for plaintiff.

      C. W. Stage, contra.
    Hale, J.; Winch, J., and-LAUBiE, J. (sitting in place of Marvin, J.), concur.
   It appears from the petition that prior to August 7, 1899, the jurisdiction of the Cleveland City Board of Elections by statute extended to the entire county of Cuyahoga. In the case of Wilmot et al v. Buckley et al this statute extending the jurisdiction of the city board beyond the city limits was held by the Supreme Court to be invalid. Thereupon; on the 7th day of August, 1899, deputy state supervisors were appointed for the county of Cuyahoga by virtue of a statute under which deputy state supervisors were appointed for all the counties of the state, with the exception of Hamilton and Cuyahoga counties. These counties were excepted from the operation by the terms of that statute. The deputy state supervisors draw such compensation as was then provided by the statute for deputy supervisors throughout the state. This compensation .was entirely inadequate for the services required to be performed in Hamilton and Cuyahoga counties.

On the 10th day of April, 1900, the Legislature of the state passed an act providing for the additional compensation to be paid to the supervisors of these two counties. The state supervisors of Hamilton county draw the additional compensation provided by that act without objection. The state supervisors of Cuyahoga county were less fortunate. Objection.was made to the receipt of the additional compensation provided by that act, and sustained by the Supreme Court. That court held that the act by which it was attempted to provide such additional compensation was unconstitutional, for the reason that it was not passed by two-thirds vote of the two houses of the Legislature.

On the 23d of April, 1904, an act similar in all respects to the act of April 10, 1900, was passed by the Legislature, and by a two-thirds vote. That act- is in terms as follows:

“Be it enacted by the General Assembly of the State of Ohio:
“Section 1. That each of the deputy state supervisors for the conduct of elections in Cuyahoga county, appointed, qualified and acting as such prior to August 6, 1900, for services rendered by them prior to August 6, 1900, shall be paid, in addition to the sum already allowed to them by law, the sum of $800, to be paid out of th€" county treasury of Cuyahoga county as other county expenses, upon vouchers approved by the deputy state supervisors of elections for Cuyahoga county, and' the county commissioners of said county shall make the necessary levy to meet the same. And the clerk of said deputy state supervisors, elected, qualified and acting as such prior to August 6th, 1900, for services rendered during the same time, shall be paid the sum of $100, to be paid out of the said county treasury as other county expenses, upon voucher approved by the deputy state supervisors of elections for Cuyahoga county and the said county commissioners shall make the necessary levy to meet the same.”

The petition shows that the relator, during the time covered by this statute, acted as one of the deputy state supervisors for Cuyahoga county; that he has demanded of the auditor a warrant upon the county treasury for the sum named in said statute, which the auditor refused and still refuses to draw. The object of this petition is to compel the issuing of such a warrant to the relator.

’ This act attempts, as did the act of April 10, 1900, to provide additional compensation for deputy state supervisors serving in Cuyahoga county prior to August 6, 1900,

We reached the conclusion in our investigation of the act of 1900, that the claim made by the relator and others was just and reasonable; that the Legislature was fully justified in providing for the additional compensation, if it could be done legally. The only specification on which the former act was declared to be unconstitutional was that it had not been passed by a two-thirds vote. That objection does not lie against the present law. It was passed by a two-thirds vote.

First, it is said that this act is obnoxious to Article XIII, Section 1 of the Constitution, which provides that the General Assembly shall pass no special act conferring corporate power.

It is a sufficient answer to this objection, that the county upon whom the burden of paying this claim sets is not a corporation, and the transaction not within the terms of the clause of the Constitution above quoted.

Again, it is said that the act is obnoxious to Article II, Section 28 of the Constitution, being retroactive.

Again, it is said that it is obnoxious to Article II, Section 26, which provides:

“All laws of a general nature shall have a uniform operation throughout the state, nor shall any act, except such as relates to public schools, be passed to tafee effect upon the approval of any other authority than the General Assembly, except as otherwise provided in this Constitution.”

Article II, Section 28, reads:

“The General Assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects, and errors, in instruments and proceedings, arising out of their want of conformity with the laws of this state.”

These two sections are immediately followed by Section 29 of Article II, which reads:

“No extra compensation shall be made to any officer, public agent, or contractor, after the service shall have been rendered, or the contract entered into; nor shall any money be paid on any claim, the subject-matter of which shall not have been provided for by pre-existing law, unless such compensation, or claim, be 'allowed by two-thirds of the members elected to each branch of the General Assembly.”

It is manifest that Section 29 provides for a definitely defined case not controlled by Sections 26 and 28. It provides for extra compensation to an officer, to a public agent, to a contractor. In each instance it is manifest that the Constitution was intended to confer upon the Legislature power to grant extra compensation to the individual for services rendered, or contracts entered into. Such object can only be attained by a special act.

Laws providing compensation for services of an officer undoubtedly are laws of a general nature and should have a uniform operation throughout the state. Laws passed in the fulfillment of an obligation of the state or any of its agencies to the individual with respect to past transactions are not laws of a general nature, controlled by Section 26. "With the restriction that the act must be passed by a two-thirds vote of the Legislature, it becomes, when so passed, a binding act. It is difficult to see why an act, passed for the purpose of compensating an individual for services rendered the state should be held to be a law of a general nature. The very nature of the transaction forbids such holding. The subject-matter covered by the statute is a single transaction between the state and the individual and in no sense a law of a general nature. If this law is not an act of a general nature and not retroactive in its operation, then it is a valid enactment.

The demurrer to the petition is overruled.


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    OBTAINING MONEY UNDER FALSE PRETENSES FROM ONE ENGAGED IN AN UNLAWFUL BUSINESS.
    Circuit Court of Cuyahoga County.
    Nathan Zuckerman v. State of Ohio.
    Decided, November 24, 1905.
    • Criminal Law — That One Paying Money Under False Pretenses Was Engaged in Unlawful Business Not Material — That Representations as to Present Fact is Coupled with One as to Future Performance Immaterial — Evidence of Like Representations to Others Not Admissible.

    1. j.uat the person from whom money was obtained by false pretenses was engaged in an unlawful business and that the money paid was for the purpose of securing immunity from police prosecution, is no defense to a criminal prosecution for obtaining the money by the false pretense that the defendant was an officer of the law.
    2. In a criminal prosecution for obtaining money by false pretenses it is immaterial that the false representation as to an existing fact is coupled with a representation that the one making the representation will perform dome service in the future.
    3. Evidence that one accused of obtaining money by false representations, had made like representations to other persons from whom he had attempted to obtain money, is not admissible.
    Marvin, J.’ (orally) ; Winch, J., and Henry, J., concur.
   Zuckerman was prosecuted in the police court of Cleveland under Section 7076, Revised Statutes, for obtaining money under false pretenses. He filed a petition in error in the court of common pleas, and upon hearing there the judgment of the police court was affirmed. Petition in error is filed here, seeking to reverse the judgment of the two lower courts. The affidavit upon which Zuckerman was prosecuted charged him with having obtained from one Fanny Weinstein $10; that she was about to engage in an unlawful nefarious business in this city, and that Zuckerman falsely represented to her- that he was an officer, to-wit, a chief of detectives, and that he would b¿ able to protect her from prosecution if she would pay him $25, and that she paid him $10 of that sum of $25, of which $5 was paid at the time of the first conversation and $5 more on the next day; that Zuekerman was not such officer as he represented, and could not protect her.

It is urged, first, that it was not an offense for which Zuekerman could be prosecuted; that the representations were made to one who was seeking protection for the carrying on of an unlawful business, and that the'obtaining money from such a one upon the representation that he could protect her would not be a violation of the statute, which reads: “Whoever by any false pretense, with intent to defraud, obtains from any person anything of value,” etc., “shall, if the value of the property or instrument so procured, sold, bartered or disposed of, or offered to be sold, bartered or disposed of, is thirty-five dollars or more,” and thep follows the punishment.

We do not understand the law to be as claimed here. We understand that to obtain money by false pretense from one engaged in an unlawful business to be as much a crime as to obtain it from anybody else. One may not be relieved from prosecution for larceny because the party from whom he steals the money is himself a thief. One may not be relieved from the crime of murder because the one whom he killed was himself a murderer. The fact that this woman was engaged in an unlawful business and that she sought to be protected in that does not relieve Zuekerman from prosecution when he obtained money from her by the false representation that he was an officer. True, she could maintain no action against him to recover the money, but that does not determine whether a crime has been committed by him.

It is said, further, that this money was obtained for a thing to be done by Zuekerman in the future, to-wit, protect her from interference of the police in the carrying on of her unlawful business. But the evidence is that he represented at the time he talked with this woman, Fanny Weinstein, that he then and there was an officer and would be able to protect her, and in addition to that, that he would protect her. Is it to be said that because of the thing one says he will do and a part of the false representation that he made is that he will do something in the future, that that will relieve from crime when a part of the thing that he says is then and there an existing fact when it is not? It seems to us that one might as well say that, if, on alighting from a train at the depot,, one should come up and say,

‘ ‘ That is my coach which stands there; you give me fifty cents and I will get your trunk and take it to the hotel,” and you give him the fifty cents. It is true, you do so on the representation of two things. One is because he says “That is my coach” and the other is because he says ‘ I will carry your trunk to your hotel.” You give him the fifty cents on the representation that it is his carriage. These illustrations might be multipliéd to show that where the representation is of an existing fact and one says he will do something in the future one is not relieved from prosecution.

We hold that the objection to the affidavit in either of the regards to which attention has been called is not sound.

A large number of objections were made to the introduction of evidence and exceptions taken to admissions of evidence. We do not stop to consider all of these, but we do stop to consider the ruling of the court upon the admission of certain testimony given by Fanny G-rosstein and Edith Green. Each of these witnesses testified that she was engaged in the same nefarious business with the prosecuting witness and each was permitted to testify over the objection of the defendant that Zuckerman had solicited from her money and made the same representation to her which it is said he made to Weinstein.

It is insisted on the part of the defendant in error that, under the authority of Tarbox v. State, 38 O. S., 581, this was admissible, In that case the syllabus has on this subject only the following :

‘ ‘ 3. Where in a trial upon an indictment it becomes material to prove, upon the part of the state, that a conspiracy existed between persons jointly indicted, evidence that the same persons were, shortly prior to the time of the alleged crime, engaged in a conspiracy to commit crimes of a like character, is competent.”

The court, in speaking of that, says:

“Did the court err in admitting evidence of similar offenses by the same parties, shortly prior to this time in Detroit? We think not. If admissible for any purpose there was no error in refusing to exclude it. We think it was competent for the purpose of showing a conspiracy between the defendants, and also to show knowledge of the falsity of the representations at the time when made. The court in its charge instructed the jury to consider it for no other purpose, and no exception was taken to the instruction.”

Upon the strength of that case it is urged that it was competent to show by Fanny Grosstein and Edith Green that Zueker-' man had made the same false representations to them. It seems to us that it was clearly erroneous to admit that evidence. The ground upon which such evidence was admitted is to show knowledge of the one charged with crime that his pretenses were false, because it is neces'sary to show that one not only made false representations, but that he knew they were false at the time he made them, and that he made them for the purpose of deceiving. But here there was no occasion to introduce the testimony of anybody for the purpose of showing that Zuckerman knew it was false. If he made the representations, he knew they were false; there is no occasion to prove by anybody else that he knew they were false. If a woman such as Solomon speaks of, “whose mouth is full of deceit and whose lips speak lies continually,” thinks she can prop up her case by bringing in others of the same character to support what she says — that is passed upon in the case of Barton v. State, 18 Ohio, 221. Barton was tried for horse stealing. On the trial of the case the court held that it was error to permit evidence to go to the jury that just before defendant committed this crime he committed another larceny. On page 223 this language is used by the court:

“Another error assigned is the admission of evidence going to show that the defendant had committed a larceny the night previous to the day on which he is charged with committing this offense.
“This, we think, was clearly erroneous. It is never admissible to prove that a person has previously committed a crime of a similar character, to show that he committed the criminal act for which he is on trial; and although the court, in this instance, says that the evidence was only admitted for the purpose of showing the intent with which the defendant got possession of the property, yet we do not see any connection between the two transactions, that would enable any legitimate conclusion to be drawn as to that fact. The only conclusion that we can see, that could be fairly drawn from the evidence, would be that the defendant intended to steal the horses and other property with which he was charged, because he was a thief, and had just before stolen a sum of money.”

In Farrer v. State, 2 O. S., 54, Farrer was prosecuted for administering poison to one whereby death resulted and the court permitted evidence that she had administered poison to other people, and put it upon the ground that it was admitted that she knew this was poison. The Supreme Court in discussing it, says, page 74:

‘‘The state is bound to prove the scienter, because money is so skilfully counterfeited, that there is no one who is liable to be deceived by it. No presumption whatever of guilty knowledge arises from the bare fact of passing a counterfeit coin or note, unless, which is but seldom the case, its baseness is apparent, and the person receiving it is a fit subject for imposition.
‘‘But how is it with respect to the nature of arsenic? Is it not undeniable, that the fact is almost, or quite, as well known, to people generally, that arsenic is a deadly poison, as that a dagger, or a gun, is deadly weapon? I think it is.” etc.

Then he says:

‘‘The effect of such testimony is obvious. It com.es upon the accused without any notice whatever; it finds him without any preparation to meet it, and unable, perhaps, from that very want of preparation, to rebut it, however innocent he may be; it convinces the jury that he was the poisoner in the particular case under consideration, though it was admitted for no such purpose; and this conviction, charge what the court may as to the proper effect of the testimony, hangs with a deadly weight upon the prisoner’s defense.”

We think it was clearly erroneous to admit the testimony of those persons whose names have been given. For that reason the judgment is reversed and the case remanded.


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    CONTEST OF WILL — ADMISSIBILITY OF DECLARATIONS OF TESTATOR.
    Circuit Court of Cuyahoga County.
    William Boepple v. Anna M. Mellert et al.
    Decided, November 7, 1900.

      Evidence — Wills—When Declarations of Testator Admissible.

    Declarations of a testator, made before or after the making of the will, if made near such time, are admissible to prove the state of mind of the testator, but not to prove the fact of undue influence.
    Caldwell, J.; Marvin, J., and Hale, J., concur.
   This action is brought in this court on a petition in error to reverse the judgment of the court of common pleas, in which court the will of the mother of the plaintiff in error was set aside.

The testatrix had several children living at the time of her death. She left her property to her son William, the plaintiff in error, by will, and the action in the common pleas court was brought by the disinherited children to set aside the will.

The plaintiff in error says the court erred in its charge to the jury. We find no error in the charge.

The plaintiff in error says the verdict is against the evidence. The verdict is the only one the jury could be, in any way, justified in finding.

The grounds in the petition for setting aside the will are: first, mental incapacity; second, undue influence on behalf of William.

Complaint is made of the court below in that it erred in its ruling on the admission of testimony. This complaint pertains mostly to the declaration of the testatrix made both before and after the making of the will; but being made near the time of making the will, there is no just cause of complaint by reason of remoteness.

Complaint is also made of rulings as to the evidence of a family quarrel, wherein the court allowed William’s rough treatment of his father to be shown.

It is the rule that in an issue of undue influence the relations of the members of the family to each other may be shown.

The contestants, to make their case out, undertook to show that William, to get the will as he wanted it in his favor, excluded the other members of the family from the mother; then brought her under his influences, and overcame her free agency in making her will. This plan of his involved three steps: (1) excluding by violence all other members of the family from his mother; (2) by such violence and other means bringing his mother completely under his control; (3) thus overcoming her mind, and procuring the will as he wanted it and not as she might wish to make it.

While these three propositions are so blended as to show one continued line of conduct to reach his ultimate purpose and are to be considered for the purpose of determining the materiality of the abuse of his father, and the court so considered it, it clearly appears that such testimony was entirely competent.

It is claimed that the court erred in admitting certain declarations of the testatrix for the purpose of proving the fact of undue influence.

The court followed the true rule of law in regard to such declarations in its charge to the jury; and, if the court erred in its rulings on the admissibility of such declarations, it was not because the court did not know the rules of law, but it was because the court erred as to what the admissions tended to prove. The law is, that declarations of the testatrix, made before or after the making of the will, if made near such time, are admissible to prove the state of the mind of the testatrix, but are not admissible to prove the fact of undue influence. If the declarations tend to prove both the fact of undue influence and the state of mind of the testatrix, then the court must admit the testimony and instruct the jury that it can consider the declarations only so far as they tend to prove the state of mind of the testatrix. The trial court impressed upon the jury in a very clear and emphatic charge, the true rule as to how far it could use such evidence. When these rules are borne in mind, it will be seen that the trial court's rulings were correct. The only one as to which there can be any question, is what the testatrix said about why the revolver came to be in her bed. This testimony tends to show that she had such fear of William, that she was afraid to move it — which would be mental state; or that he had so far overcome the natural affections of her heart for her other children, that she was willing and ready, in her then mental condition, to keep the revolver in her bed for the purpose of keeping the children out of her sick room.

Which ever of these propositions would express her feelings, would tend to prove her state of mind towards her other children, and for that reason the testimony is admissible. And the court, having guarded the jury as to how far and for what purpose it could use such testimony, in a manner that the jury could not possibly have misunderstood, it seems to us that the trial below was a fair one; that the proper judgment was entered under the evidence in the case; and that there was no error on the part of the court, either in the charge or in the admission or rejection of testimony, and the judgment is affirmed.


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    GOODS FORWARDED UNDER A PRIVILEGE OF PURCHASE LOST IN TRANSIT.
    Circuit Court of Cuyahoga County.
    A. Jacobs v. Moritz Kollander.
    Decided, March 21, 1900.

      Bailment — When Bailee Not Liable for Loss of G-oocls to be Returned Upon Demand.

    Where goods are sent to a prospective purchaser from which he is to select such as he desires to purchase and return the others to the owner upon demand, and the prospective purchaser elects not to keep any of them, and after waiting a reasonable length of time ships the goods to the owner without demand having been made, he is not liable for the loss of the goods in transit.

      Kerruish, Chapman <& Kerruish, for plaintiff in error.

      E. Joseph, contra.

      Hale, J.; Marvin, J., and Caldwell, J., concur.
   Kollander is in the jewelry business in New York; Jacobs is in the same business in Cleveland. An uncle of Kollander applied to Jacobs to have him buy goods from his nephew in New York. Jacobs intimated that if he could have the goods to look over, he might buy them. The uncle of Kollander wrote to him, and upon receipt of the letter Kollander sent the goods to Jacobs with a writing which is claimed constitutes the contract between them. The substance of the letter is that Kollander sent the goods to Jacobs, and Jacobs was to look them over and what he concluded to buy he was to take, and any or all that he did not want to buy, he was to deliver to Kollander upon demand. Jacobs received the goods, did not wish to purchase any of them at the price named, and after holding them about a week, sent them back to Kollander in New York, by express. The goods were stolen from the express company at Pittsburg. Fifty dollars, a mere nominal value, was paid on the goods by the express company.

Kollander brings this action to réeover from Jacobs the value of the goods stolen; and it is claimed that Jacobs did not comply with the contract in that he did not hold the goods until they were demanded from him by Kollander. Jacobs claims that he performed the contract. The contract is silent as to when the ¡goods were to be returned or when they should be demanded. They were a class of goods that were liable to be stolen from Jacobs unless he went to the expense of keeping them in some safety deposit vault or other place of security.

This contract is to be construed, not that Jacobs was to keep the goods for any considerable length of time, but as meaning that he was to be ordered to return them to New York- as soon as he had an opportunity to examine the goods and determine how much of them he wished to retain. The silence of the contract upon the time that he was to retain them, made it the duty of the court to say to the jury that he was to retain them a reasonable length of time, and the jury should have been instructed that if he retained them a reasonable length of t.imp for Kollander to ask for their return, and he (Kollander) neglected to ask or demand their return, then Jacobs was justified in returning them without demand, and if the jury found that they were retained by Jacobs a reasonable length of time before he returned them, then he would not be liable under the agreement made between them. This the court neglected to do, but treated the contract as though Jacobs was to retain the goods until a demand was made upon him for their return, however long that might be, and this was error for which the case is reversed.


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    ESTATE INHERITED BY A WIDOW WHO DECLINED TO TAKE UNDER THE WILL.
    Circuit Court of Cuyahoga County.
    George March, Executor of the Will of Otis F. McClentic, v. Jennie McClintic et al.
    Decided, January 14, 1907.

      Wills — Where Widow Rejects Provisions of Will, Property Willed to Ser is Sot “Undisposed Of” — Widow Sot Entitled to a Distributive Share in Proceeds of Real Estate Converted Into Personalty in Violation of Terms of Will.

    1. Where a testator has, by two different items in a will, made specific bequests to his widow, who is also his next of kin, and by a later item gives her an interest in all the residue of his estate not already disposed of by the will; upon the widow’s election not to take finder the will, the property specifically given to the widow by the first two items of the will is not thereby transferred to the class of property mentioned in the will as property not otherwise disposed of, but is to be treated as intestate property and as such inherited by the widow as next of kin.
    2. A widow who has rejected the provisions made for her in her husband’s will and elected to take under the law, is not entitled to a distributive share in the proceeds of real estate, which by the terms of the will was not to be sold until her death, but which, upon order of the probate court has been sold before that time.
    Marvin, J.; Winch, J., and Henry, J., concur.
   •This suit is brought under favor of Section 6202, Revised Statutes, and is for the purpose of obtaining from the court directions to the executor, for the disposition of the estate of the testator, now in his hands.

Otis F. McClentic, who was a resident of Cuyahoga county, Ohio, died testate on or about the 10th of June, 1904. He left no lineal descendant. The defendant, Jennie McClintic, is his widow. By his will, which was duly admitted to probate, the plaintiff was designated as executor, and letters testamentary were issued to him, under which he is now acting in the settlement of the testator’s estate.

A considerable number of bequests of money are made in the will to designated persons, and these have all been paid out of the personal estate. There remains of the personal estate left by the testator about ninety thousand dollars. Besides this personal estate the testator left certain real estate, none of which came to him by descent, devise or by deed of gift from any ancestor, so that had he died intestate, the widow would have inherited all of such real estate, under Section 4159, Revised Statutes.

One tract of the above-mentioned real estate constituted the homestead of himself and his wife.

All of this real estate has been sold by the executor under an order of the probate court. It is suggested that there was no lawful authority in the probate court to order this sale, but in the view taken of the case, this is immaterial here.

Item 7 of the will reads:

“I give, devise and bequeath to my wife Jennie and her heirs the homestead in which I now reside, situate on the west side of what is called Franklin street in Chagrin Falls township, Cuyahoga county, Ohio, and is the same property purchased from Chas. A. Wales.”

Item 8 of the will reads: '

“I will, give and bequeath to my wife Jennie and her heirs all of the household furniture of every kind, nature and description contained in my house, or of which I may die possessed.”

Item 9 of the will reads:

“For the purpose of furnishing and providing my wife Jennie with a home, care, comfort, support and maintenance, in such a way, manner, and at such place as she may choose and deem best during the remainder of her life, I give, devise and bequeath to my wife Jennie all of the residue and remainder of my property of whatever kind and wheresoever situate, and I hereby direct that she invest and keep invested in such safe and reliable interest-bearing securities as she may deem best, my personal estate, and at any time she deems best so to do is hereby authorized to change the securities or any part thereof in which she has invested any of my personal estate. I direct that my wife first use the interest and income arising from my personal and real estate for the purposes herein mentioned, and if from the remainder of my personal and real estate during her life the interest and income arising shall be insufficient for the purposes herein specified, then I hereby authorize and direct my wife to use such part or the whole of'the remainder of my properties as she may deem necessary to fully carry out the purpose as herein specified and provided. It is my wish, and I so direct, that my wife fully and freely use and enjoy the use of the remainder of my property for the purpose herein specified without annoyance or hindrance of any person.”

Item 10 of the will reads:

“At the death of my wife, any part of my estate mentioned in item IS herein, then remaining uneonsumed by my wife, I direct my executor to convert into money and to distribute the same, share and share alike, between my nephews and nieces, the children of my brother, Franklin J., and of my deceased brothers, and sisters, to-wit: William, John, Charles, Albert Lucius, Martin, Lucinda and Abigal.”

The widow rejected the provisions made for her in the will, and her rights are, therefore, fixed by Section 5964, Revised Statutes, which provides that where she fails to elect to take under the will, she shall retain her dower and such share of the personal estate of the deceased consort as she would have been entitled to by law, in ease he had died intestate, by sections of the statute fixing the order of descent and distribution, in case of intestacy.

Attention is first called to .item 7 of the will, already quoted. It is clear that the widow takes nothing under this item, which in terms bequeaths to her the homestead. It is also trae that she takes nothing under item 8, which bequeaths to her all of the household furniture of every kind contained in the homestead.

What, then, is the status of the property described in these two items?

It is said in item 9, “I give and devise and bequeath to my wife, Jennie, all of the residue and remainder of my property of whatever kind, and wheresoever situated.” This, followed by qualifying expressions as to such ownership as appears by the item already quoted.

What is the residue and remainder which is disposed of by item 9?

It is urged that it includes all the property which is not taken under either of the preceding items, and that, as the widow declined to take under the will, she- takes nothing under item 7 or item 8, and therefore this residue and remainder includes the property mentioned in those two items. We think otherwise.

It would seem clear that all which the testator intended to have included in this ninth item is that which had not, by previous items of the will, been cared for out of the estate for particular purposes, and from this it follows that as to the property named in items 7 and 8 the rights of the parties are just what they would have been if he had died intestate; and so the widow, as next of kin, and by inheritance, not by will, becomes the owner of the homestead and the household furniture.

If there were doubt as to this being the true construction, it would have to be resolved in favor of the widow, as heir, upon the doctrine that words of doubtful meaning in a will are to be construed most favorably to the heir. See Davis v. Davis, Executor, etc., et al, 62 O. S., 411.

From the syllabus:

“1. When a residuary clause in a will admits of a limited application as well as one of more general character it should be given that construction which will be most favorable to the heir-at-law.
“2. The rule which adopts a construction more favorable to the residuary legatee with respect to void or lapsed legacies than'is applied with respect to void or lapsed devises, does not obtain in this state. The will should be construed, in either ease, so as to give effect to the intention of the testator as fairly-ascertained. from a consideration of all its provisions and his situation at the time of its execution. ’ ’

By referring to the tenth item of the will, above quoted, it will be seen that upon the death of the widow the executor was to convert all the property into money and make distribution as provided in this item. The widow having rejected the provisions made for her in the will, thereby rejects the trust provided for in the ninth item of the will, but she does not thereby hasten the time when the conversion and distribution iá to be made. This conversion, however, as has already been said, has been made by the sale of the real estate, upon the order of the probate court, and it is urged upon the part of the widow that such conversion having been made, she is entitled, taking under the law, to have the avails of the conversion of this real estate treated as personal property in the distribution to be made.

In support of this attention is called to the case of Hutchings v. Davis, Executor, 68 O. S., 160. In that case no provision whatever was made for the widow. In fact, the will was made before the marriage of the testator to the woman who became his widow at the time of his death. One of the provisions of that will reads:

“The Enterprise Mills, my interest in the business of Stone-man & Hjutchins, with what real estate is not sold of any and all kinds, shall be disposed of, and business settled up, if possible, within 'two years of my death. ’ ’

It was held that this constituted an equitable conversion of the real estate into personalty, taking effect from the death of the testator.

The fourth clause of the syllabus reads:

“The positive direction by a testator to sell all of his real estate and to blend the proceeds with his personal property in one fund for the distribution of his whole estate according to the scheme of the will, makes an absolute conversion for all purposes into personal property, which should be distributed as personal property, even if the special object intended by the testator should fail. And the effects of the conversion extend to, and may be claimed, not only by those who claim under or through the will, but also by those who are not entitled under the will, but are entitled directly from or under the testator.”

An examination of this case shows that the equitable conversion of the realty took place because the testator by his will directed it to be done by his executors and blended it with his personal estate for distribution.

In the present case the testator contemplated and directed the conversion of this property, this real estate, only upon the death of his wife.

Section 1162 of Pomeroy’s Equity Jurisprudence reads:

“The instrument might in express terms contain an absolute direction to sell or to purchase at some specified future time, and if it created a trust to sell upon the happening of a specified event which might or might not happen, then the conversion would only take place when the event happened, exactly as though there had been an absolute direction to sell at that time.”

Here, although there is no specified time at which the conversion was to take place, there is an event, to-wit, the death of the widow; certain it is true to take place at some time, but no conversion is to be made until the happening of that event.

If the intention of the testator had been carried out, by the acceptance on the part of the widow of the provisions made for her, she could never have had any part of the avails of the sale of the real estate. If the testator bad died intestate, she would have had nothing in this real estate but dower. Her rejection of the provisions made for her in the will did not necessarily expedite the time when this conversion should have been made, and certainly it would have been wrong to those to whom distribution is to be made, after her death, to hold that because, as a matter of fact, the real estate has been sold under an order of the probate court, the distribution of the avails of such sale is expedited in such wise as to increase the amount for the widow and'thereby decrease the amount for those to whom distribution is to be made, as provided in the will. We hold, therefore, that the widow is not entitled to distribution out of the avails of the sale of this real estate. She is entitled, of course, to the avails of her dower interest in all of the real estate except the homestead. As to that, she is entitled to all of the avails of the sale, because the property was hers by inheritance.

The claim is made as against the widow, that because of her rejection of the provisions of the will she has lessened the amount which would ultimately come to the distribution and that she should not have a liberal construction of the will made in her favor. Holding as we do in the case, however, this could affect only the matter of her having the entire avails of the sale of the homestead, because we hold that she gets no distributive part of the avails of the sale of the other real estate. But it is not at all clear, that the distributees, upon final distribution will receive less than they would, if the widow had accepted the 'provisions of the will. Had she done so, she would have been entitled to the entire income of the property mentioned in item 9, and might have diminished the principal. Her age is said to be about 51 years. With her expectancy of life, it is probable that the portion of the estate which will be left in the hands of the trustees to be distributed at the time of her death will be as great as it would have been had she aecepted’the provisions of the will.

The only ground upon which the widow can claim distribution of the avails of the sale of the real estate is that there was an equitable conversion of the real estate, taking effect at the time of the death of the testator, because of the provisions in the will that there should be a conversion at the death of the widow, and this would result in saying that the widow is to have a distributive portion of a fund that was not to be in existence until after her death. This is manifestly untenable.

If all the parties who might be entitled to distribution under item 10 of the will, were now in being, it might well be said that the trust provided for in item 9 of the will would be a dry trust, and that there would, therefore, be no reason for continuing it. But the provisions made for distribution at the termination of this trust includes, “the children of my brother Franklin J.”

All. other distributees are mentioned by name, but the distribution is to be per .capita, and since it is to include the children of Franklin J., and it can not now be known whether children will hereafter be born to Franklin J., it can not be known to whom, when, and to how many distribution will have to be made when this trust ends, and so this trust must be continued. And for that purpose the probate court will doubtless, upon application, appoint a trustee; very likely the testator’s executor may be appointed as such trustee, but since duties are required of the trustee in the matter of investing funds, and the like, which the executor as such can not do, it would be better, perhaps, that some other person than the executor be appointed trustee. It will be necessary however that a trustee be appointed.

The executor is directed, therefore, to pay to the defendant, J ennie MeClentic, all the avails of the sale of the homestead, and her distributive portion, as provided by statute, out of the personal property, not including the avails of the sale of the real estate, and to pay to the proper trustee, when appointed, all the remainder of the property in his hands for distribution.