author: Spence, J. Weaver, J., Farmer, C. J.,

text:
    COMMISSIONS FOR. SALE OF REAL ESTATE.
    Court of Appeals for Hamilton County.
    Conrad Laudt and William Laudt, Doing Business as Laudt Realty Co., v. Eliza Furer, Individually and as Executrix of the Estate of Edward Furer, Deceased.
    Decided, February 8, 1916.

      Contract — Procured by Broker for Sale of Beal Estate — Burden on Broker Claiming a Commission — To Show Willingness and Ability on the Part of Proposed Purchaser — To Take the Property and Make the Payments as Agreed Upon.

    1. Recovery of a commission for sale ol real estate can not be based on the fact alone that the proposed purchaser signed the contract of purchase, but it must also be made to appear that he was able and willing to complete the purchase and make the payments stipulated in the contract.
    2. The claim for a commission is unenforcible in the instant case for the further reason that plaintiff concealed from the owner of the property the fact that the proposed purchaser would not be able to take the property until he had sold certain other property the title to which was so clouded as to render a sale extremely improbable.

      E. A. Hafner and W. G. Muhlhauser, for plaintiffs in error.

      Spang enberg & Spang enberg, contra.
   Spence, J.

The plaintiffs begun this action in the court of common pleas against Edward Furer. and Eliza Furer to recover commissions for the sale of real estate, which they claim to be due under a contract of which the following is a copy:

“This agreement made the 9th day of June, A- D. 1911, Witnesseth: That Edward Furer in the county of Hamilton and state of Ohio, has this day placed with the Laudt Realty Company for sale, the following described property, of which I am the owner in fee, situated in the city of Cincinnati, county of Hamilton and state of Ohio, to-wit: All that certain 4157 Applé street, lot 22 x 100 — 5-foom brick; bath, toilet and reception hall and attic. Terms — Cash $3,200. Price, thirty-two hundred. Mortgage now on property. * * * The said Laudt Realty Company shall have the agency on sale for the above mentioned realty for five (5) months from date hereof, and thereafter, until I revoke the same by giving them ten days’ notice in writing, and I hereby authorize them to sell and contract in writing with purchaser for the sale of said property according to the price and terms above written, or any price or terms which I may agree to accept other than above stated, and if the said property be sold or exchanged during the period above mentioned, no matter by whom, or after above period on information obtained through their agency, I agree to pay them a commission of two (2) per cent, of the gross amount of such sale or exchange. I hereby waive the benefit of all laws exempting real or personal property from levy and sale, or any laws intended for advantage or protection by homestead exemption law granted by the statute of Ohio. •
“Owner sign here, Ed. Furer,
“MIrs. Eliza Furer.”
“Accepted by Conrad Laudt, Manager.”

Then the petition contains an averment that on or about the 7th day of September, 1911, the premises mentioned in the above agreement were sold to Mrs. Carrie Feldmann, by an agreement in writing; then follows a copy of an offer from Carrie Feldmann to purchase the property for $3,200 cash, which offer was accepted in writing by Ed. Furer and Eliza Furer.

The petition avers, further, that the plaintiffs have done all things which were upon their part to be performed under the agreement and ask for a recovery of the commission.

The second amended answer contains, first, a general denial of the allegations of the petition except what is hereinafter specifically admitted. The answer then admits the making of the contract dated June 9th, 1911, with plaintiffs and the signing of the paper writing dated September 7th, 1911, purporting to be a contract of sale to Carrie Feldmann, but avers that their signatures were obtained to the latter contract by the false and fraudulent representations of plaintiffs that Carrie Feldmann was ready and able to purchase said premises on the terms named in her contract, the plaintiffs well knowing that she was not ready and able to purchase same and has not been able to purchase the property, up to the time of filing this answer, though defendants have been ready and willing to convey the same and are still ready to convey on said terms.

Defendants further aver in their answer that, at the time of entering into the contract with Carrie Feldmann, it was represented to them that the sale should be held in abeyance until Carrie Feldmann’s property was disposed of and that her property has never been disposed of and that plaintiffs had charge of the sale of the Feldmann property and they knew that they would have to complete that sale before she could purchase the Furer property.

Plaintiffs filed a reply to the first amended answer, which is in effect a denial.

We do not intend to follow this case through its most devious and peculiar course, but only to refer to some of the more important features of the case.

The petition in error in this case sets forth sixteen grounds of error for which plaintiffs in error ask to have the case reversed; if these grounds of error were set up by the other side, in this ease the court would have but little trouble in sustaining most of them.

The petition does not contain the usual and ordinary averment and, as many courts hold, necessary averment that the plaintiffs furnished a purchaser able to purchase the property, but it contains the meager averment that the plaintiffs “have done all things which were upon their part to be performed under said agreements, or either of them.” Then the petition contains an allegation of the evidence of performance in the nature of a proposition to purchase from Carrie Feldmann and an acceptance by Ed. Furer and Eliza Furer, but it does not contain an averment that she was able to purchase for cash as provided by the contract, and it does not contain an averment that the sale was ever completed by the transfer of the property orpayment of the purchase money, or that the sale was prevented by any act 'of the defendants. The plaintiffs seem to assume that all that was necessary for them to do was to procure the offer and acceptance between Carrie Feldmann and the defendants.

In the case of Wilson v. Mason, 158 Ill., 304-311, the court say:

“An agreement by a real estate broker to procure a purchaser, not only implies that the purchaser shall be one able to comply, but that the seller and purchaser must be bound to each other in a valid contract.”

The above was quoted, with approval, by Judge Price, in his opinion in the case of Pfranz v. Humburg, 82 Ohio St., 1-11.

In Blackledge & Blackledge v. Davis, 129 Iowa, 591, 105 N. W., 1000, third syllabus:

“A real estate broker employed to procure a purchaser of land for a fixed price or any other price below that consented to by the owner, has the burden of proving that he produced a person with whom the owner reached an agreement of sale or exchange, and that such person was able and willing to carry out such agreement, in order to recover the commission provided for. ’ ’

Weaver, J.,

in his opinion says:

“The burden was upon the plaintiffs, according to their own theory, to show affirmatively that they did in fact produce a person with whom defendant reached an agreement of sale or exchange in which the minds of the parties had met as to the property, which was the subject of such sale or exchange and the terms and price on which the same was to be consummated, and that the customer was ready, able and willing then and there to carry out such agreement.”

It is said in the case of Fox v. Ryan, 240 Ill., 391, 88 N. E., 974, sixth syllabus:

“An action for brokers’ commissions where the contract is not performed by a transfer of the property, the broker has the burden of proving the readiness and ability of the proposed purchaser to take the property on the terms proposed. ’ ’

Farmer, C. J.,

says:

“An agreement by a real estate broker to procure a purchaser not only implies that the purchaser shall be one able to comply, but that the seller and the purchaser must be bound to each other in a valid contract.”

In Colburn v. Seymour, 32 Colo., 430 (76 Pac., 1058), the court say:

“The financial responsibility of the alleged purchaser was, or ought to have been known to the plaintiff; upon such responsibility rested tbe ability of tbe purchaser to make the purchase. Through him (defendant) expected ta effect the sale, and necessarily the burden rested upon the plaintiff to prove that the financial ability of the proposed purchaser was such that he was able to make the purchase. * * * While it is true there seems to be some conflict of authority on the question of whether or not it is necessary for the broker to prove the financial ability of the purchaser in these eases where the owner refuses to carry out the contract of sale, we are of opinion that the great weight of authority and the well considered, cases on the subject require that he make such proof, because he must show, before he is entitled to recover his commissions, that he performed those acts which, according to the contract of his employment it was necessary for him to perform in order to become entitled to the compensation agreed upon. ’ ’

If the above cases correctly state the law, then there was a complete failure of proof, by the plaintiffs, in the court below, as they offered no evidence as to the financial ability of Carrie Feldmann, or as to her ability to pay cash for the property, as provided by the contract.

The common pleas court tried this case on the mistaken theory that all the plaintiffs had to show was that they had procured a contract of sale of the property, which contract was signed by the defendants, and attempted to exclude all the evidence of the ability of the proposed purchaser to take the property and to pay cash for it. The court seems to have completely overlooked the fact that plaintiffs sued on a written contract and that the burden of proof was, upon the plaintiffs to show that they had performed their part of the contract before they could recover; this they did not do, as they did not show that they had furnished a purchaser with ability to take the property on the terms provided in the contract.

Assuming that the law is, as contended by counsel for plaintiffs in error, that all that was necessary for the plaintiffs below to show in order to recover was that they brought the parties together and the defendants signed' a contract of sale. The evidence which was allowed to get by the court, at the trial,we think shows clearly that the plaintiffs knew, when the defendants signed the contract of sale, that the proposed purchaser, Carrie F'eldmann, could not buy the property unless she sold her property, and they knew that there was a defective title to her property and that it could not be sold without a proceeding in court, and the plaintiffs testify that they did not reveal these facts to the defendants before they signed the contract. If they were acting as the agents of the defendants and withheld this information from their principals and induced them to sign the contract, it was a breach of trust, if not fraud, and alone should prevent the plaintiffs from recovering in this case.

We have examined all the assignments of error in this ease and do not find any errors prejudicial to the plaintiffs in error.

The judgment of the court of common pleas will be affirmed.

Pollock, J., concurs.


source: Caselaw Access Project

author: Jones (Oliver B.), J.

license: Public Domain

text:
    RIGHT-OF-WAY NOTWITHSTANDING EASEMENT WAS NOT RESERVED.
    Court of Appeals for Hamilton County.
    Henry Rimpler v. James Iuen.
    Decided, June 19, 1916.

      Easements — Conditions Existing at Time of Conveyance with Reference to Right-of-Way Control.

    Conditions existing at the time of the making of conveyances by a common grantor as to right-of-way, constructed with the knowledge and assistance of the grantee before his purchase of one of the lots, entitle grantees of other lots to a way out and to the grantor’s rights then obtaining in an existing roadway, notwithstanding no reservation of the easement was made in the conveyance of the servient lot and other rights-of-way over other lots may have since become available.

      Dempsey & Nieberding, for plaintiff.

      Horace A. Reeve, Gogan, Williams c§ Ragland and Aaron A. Ferris, contra.
   Jones (Oliver B.), J.

Heard on appeal.

Prior to May 24, 1892, Frederick Rimpler was the owner in fee simple of lots 21, 22, 23, 24, 25 and 27 on the plat of the subdivision of Round Bottom Farm made by the order of the court of common pleas in the settlement, of the estate of Thomas R. Biggs, deceased. These lots lie southeast of the Little Miami branch of the Pennsylvania Railroad, al] except lot 27 bounding southwardly on the Little Miami river. Lot 27 lies north of lots 21 and 22; its east line is the west line of lot 20 of the same subdivision, which is owned by Michael Leaf; and on the north it is bounded by a county road which passes under the Little Miami Railroad and connects with Wooster turnpike.

Prior to May, 1892, Frederick Rimpler was also the owner of lot 7 of Muehmore’s estate lying west of said lot 25 of the Biggs estate and lying on both sides of the "Wooster turnpike and the Little Miami Railroad. The railroad company has constructed a farm-crossing over the railroad upon lot 7 which was in use by Frederick Rimpler and is still in use by his daughter, the owner of the property up to the present time, for all of the purposes of said lot 7 of the Muchmore estate. . This same crossing was at times used by Frederick Rimpler and by his successors in title for access to lot 25 of the Biggs estate, which lies immediately east, and also for the other lots in the same tier, being 24, 23, 22 and 21. While Frederick Rimpler was the owner of all of said six lots in the Biggs estate, for the convenience of the property he established and maintained a roadway twenty feet in width in lot 27 along its east line running from its southeast corner to the county road, and used the said roadway as a means of ingress and egress, to and from said county road for lots 21, 23 and 24.

On May 24, 1892, Frederick Rimpler and his wife conveyed to the plaintiff, Henry Rimpler, lot 24 together with all the privileges and appurtenances thereto belonging. On June 20, 1892, said Frederick Rimpler and wife conveyed to the defendant, James Iuen, said lot 27, no specific reservation being contained in said deed of such roadway along its east side. But at that time, said James Iuen, who had previously been a tenant and cultivated certain of said lots for Frederick Rimpler, knew of the existence of said private roadway and had himself assisted in its construction and frequently used it. At the time of such conveyance of lot 27 to James Iuen by him Frederick Rimpler was still the owner of lots 21, 22 and 23, and continued to use such roadway across lot 27 for ingress and egress to them.

On May 21, 1894, Frederick Rimpler conveyed to plaintiff, Henry Rimpler, said lots 21, 22 and 23, together with all the privileges and appurtenances thereto belonging. On the same day Frederick Rimpler conveyed to Joseph F. Inen lot 25 of the Biggs estate, making in said deed reservation of a roadway of twenty feet across said lot and along the right-of-way of the Little Miami Railroad and extending along said track in a northerly direction 1047.4 feet from a section line where it crosses the railroad, said road being for the joint use and convenience of the owners of lots 22, 23,'24 and 25 of the Biggs estate.

The evidence shows that while a fence was built along the south line of lot 27, a gate was built across where it intersected this private roadway at the southeast corner of the lot, and this road was used by both Frederick Rimpler and Henry Rimpler as the owners of lots 21, 22, 23 and 24, from the time of its construction, as a means of ingress and egress for said lots to the county road and Wooster turnpike. This use was with occasional spoken objections on the part of defendant, James Iuen, but continued without resistance 'until some little time before the bringing of this action, when at times Mr. Iuen would cause the gate to be locked, and it became necessary for Mr. Rimpler or his employees on one occasion to take up the gate post, and on another to remove the lock and chain; and shortly before the bringing of this suit Mr. Iuen made a determined resistance to the further use of the road by plaintiff.

A great deal of testimony has been heard by the court, but when carefully considered there is little conflict in its essential elements, defendant himself admitting his participation in the original establishment of the road and its use, and there being no question of its continued use from the time of its original construction up to the time of bringing the suit, notwithstanding occasional objections and the slight interference made at times by the defendant.

There is no claim, in his case of a right-of-way by prescription, nor is there any specific grant by deed except that contained by way of appurtenances to the land for the use and benefit of which this way was originally established.

Plaintiff claims an easement in this roadway over lot 27 as a way of necessity, or at least as a way of convenience, under the principle announced in the case of Baker v. Rice, 56 Ohio St., 463. Defendant insists that such right can not be claimed where no reservation was made in the grant for the reason:

First, that the plat of the subdivision of the estate of Thomas R. Biggs shows a twenty-foot farm road extending along the north lines of lots 24, 23, 22 and 21 and out through the property now owned by Michael T. Leaf along the south line of lot 20 to reach" Elm avenue at the county road, which is reached further west by the private road under discussion.

And, second, that plaintiff had a way out across intervening lots and over lot 7 of Muchmore ’s estate, from the railroad crossing to the Wooster pike.

In considering these questions we must determine the conditions existing at the time of the conveyance of lot 27 by Frederick Rimpler to James luen, rather than the conditions which have since arisen.

If the making and recording of the Biggs plat August 19, 1882, constituted this farm road a public highway for the benefit of the abutting lots and its use could be insisted upon by Frederick Rimpler and the plaintiff as his successor in title, then they could not claim the roadway over defendant’s land as a way of necessity. The evidence shows that this farm road was never opened and used as such but has been occupied and cultivated as a part of the farm made up of the adjoining lots, the part lying in the Rimpler land never having been opened and the part through the Leaf property never having been opened or used, and its line not being apparent to any one or differing in any way from the rest of his farm.- As to the way out westwardly across the railroad over lot 7, a consideration of the evidence will show that in May, 1892, when Frederick Rimpler conveyed lot 24 to ITenry Rimpler without reserving any way across, he became dependent upon the roadway he had built and used across lot 27 for access to the public highway for lots 21, 22 and 23; and Henry Rimpler under the deed of lot 24 to him, not being entitled to any way out across lot 25 also became entitled to the use of the way across lots 23, 22 and 21 and over this roadway on lot 27 out to the public highway. The evidence shows that while Frederick Rimpler and his successors have traveled across the farm and availed themselves of the crossing in lot 7 over the railroad to Wooster pike, no defined roadway has been in existence across these lots and at least part of the travel has been along and over the right-of-way of the Little Miami Railroad, and not by right, but purely as a matter of sufferance.

Giving full consideration to all of the evidence, the dates of the. conveyances above recited, and the use of the property and this roadway by the owners of these lands and their tenants, the court has come to the conclusion that Henry Rimpler when he received the deed from Frederick Rimpler for lot 24 was entitled, under the principle set out in Meredith v. Frank, 56 Ohio St., 479, to a way out over lots 23, 22, 21 and 27, all of which were then owned by his grantor, Frederick Rimpler; and later when lot 27 was conveyed by Frederick Rimpler to James Iuen it was still subject to this easement in favor of lot 24 then owned by Henry Rimpler; and under the principle set out in Baker v. Rice, supra, it was also subject to like use by Frederick Rimpler for the benefit of his lots 23, 22 and 21 as a way of convenience. It was then an existing way, the use of which was and had been apparent to James Iuen. It was being continually used, and was reasonably necessary to the use and enjoyment of the land for which it had been constructed, and added materially to its value. The fact that under the' subsequent deed of lot 25 an easement had been reserved which is now available to Henry Rimpler as the owner of lots 21, 22, 23 and 24, can not be held to revoke the rights already obtained by him in the use of the roadway across lot 27.

A careful examination has been made of Jordan v. Manufacturing Co., 89 Ohio .St., 311, which is strongly relied upon by defendant’s counsel, but nothing in that case in any way changes or modifies the rules here applied under the two cases above referred to in Meredith v. Frank and Baker v. Rice, supra.

Judgment will therefore be given in favor of plaintiff, as prayed in the petition. ,

Jones (E. PI.), J., and G-orman, J., concur.


author: Houck, J.

text:
    CONVEYANCES IN FRAUD OF CREDITORS.
    Court of Appeals for Licking County.
    Dessa P. Penick v. Eva L. Penick and Emless L. Penick.
    Decided, March Term, 1916.

      Plaintiff in an Action Brought Subsequent to Execution of Deed — Is a Subsequent Creditor Within Meaning of the Act Relating to Conveyances in Fraud of Creditors.

    An action to set aside a conveyance on the ground of fraud does not lie against a grantor who executed the deed, upon which the attack is made, prior to the bringing of suit by plaintiff, notwithstanding the said deed was not placed on record until after the plaintiff had reduced his claim to judgment.

      J. V. Hillard, for plaintiff.

      Fitzgibbon, Montgomery & Blach, contra.
   Houck, J.

This case comes here by way of appeal from the Common Pleas Court of Licking County, Ohio, and the relief sought by plaintiff is to set aside a certain deed executed and delivered by the defendant, Eva L. Penick, to her husband, Emless L. Penick, alleging the same to have been made in fraud of the rights of plaintiff and other creditors of the said Eva L. Penick.

The petition in substance avers that at the April term of the common pleas court, in the year 1912, plaintiff recovered a judgment against the defendant Eva L. Penick in the sum of $1,200, with interest from the 1st day of said term, to-wit, April 1, 1912, at the rate of 6% per annum and for costs. That on the 28th day of August, 1908, the defendant, Eva L. Penick, in contemplation of incurring said debt, and with intent to hinder, delay and defraud her creditors, conveyed the following real estate (being house and lots located in the city of Newark, Licking county, Ohio) to the defendant, Emless L. Penick, who well knew said intent, for the colorable consideration of $1 and other considerations, but for no actual consideration whatever, said property being worth at said time of conveyance the sum of $2,500; that said Eva L. Penick conveyed said property voluntarily and without consideration to her husband, the said Emless L. Penick, for the purpose of defrauding the creditors of the defendant, and especially this plaintiff; that within three days after obtaining the above named judgment the deed conveying the above described premises to the defendant was placed on record and recorded on the 23d day of April, 1912, in deed record book No. 219, page 257, of the deed records of said county. Wherefore plaintiff prays that said conveyance^ may be declared null and void and that she may be decreed equitable relief, etc.

• The answer is a general denial of each and all the material allegations set forth in the petition.

The essential facts in this controversy and the ones necessary for the proper determination of the issues in the ease are ■ as follows:

The defendant, Eva L. Penick, executed and delivered to Em-less L. Penick, her husband, for the consideration of $1 a quitclaim deed for the real estate in question, the deed bearing date of August 29, 1908, and was delivered to the grantee by the grantor the same day. On the 18th day of Miay, 1909, the plaintiff commenced a suit in the Common Pleas Court of Licking County, Ohio, asking damages against the defendant, Eva L. Penick, for alienating from her the affections of her husband, J. Ray Penick. The cause was tried and a verdict of the jury in the sum of $1,200 was returned in favor of the plaintiff, on April 19, 1912. The deed in question was left for record on the 22d day of April, 1912, and was duly recorded in the record of deeds for Licking county, Ohio, on the 23d day of April, 1912, as appears in Volume 219, page 257, of the deed records of said county.

The petition in the present case was filed August 4, 1913. The cause was submitted to this court on a transcript of the testimony taken in the trial of the ease in the common pleas court.

We are of the opinion that there are but two questions necessary to be considered in the present case, and upon these the rights of the parties hereto must be determined. First: Was the plaintiff, under the facts in this case, a creditor of the defendant, Eva L. Peniek, at the time her suit for damages was filed? Second: Was the deed in question from Eva L. Peniek to her husband, Emless L. Peniek, voluntarily made, and was it executed without consideration, and was it done for the purpose of defrauding said Dessa P. Peniek, a creditor f

Addressing ourselves to the first question, it will be necessary to determine whether or not Dessa P. Peniek was a creditor of Eva L. Peniek as contemplated in law at the time of the execution and delivery of the deed in question, or whether she was, under the facts as shown by the evidence, a subsequent creditor. If she was a creditor at the time of the execution and delivery of the deed in question, then she is entitled to prosecute this suit, but if she became a creditor thereafter then she has no right in law to prosecute the same.

The evidence in this case shows that the deed was executed on the 28th day of August, 1908, and the suit for damages was filed May 18, 1909. A mere claim for damages for the alienation of affections certainly is not a credit until it is reduced to judgment, and Dessa P. Peniek in her suit for damages against Eva L, Peniek is not a creditor, within the meaning of the law upon the subject of conveyances in fraud of creditors, until her reputed claim has been reduced to judgment, The mere fact that Dessa P. Peniek threatened to bring suit for damages against her mother-in-law, Eva L. Peniek, in nowise makes her a creditor, because the suit might never have been brought and judgment might never have been obtained. Therefore, in the instant case, a court of equity would not be- justified in setting aside the deed in question, even though the deed was without consideration, in the face of the fact that the plaintiff was a subsequent creditor. The burden in this case was upon the plaintiff to show that she was a creditor of Eva L. Peniek, at the time of the execution and delivery of the deed in question, and that the real estate described in the deed was transferred by the defendant, Eva L. Peniek, with intent on her part to defraud the plaintiff. We feel that our theory of the law in this regard is well establisted as will appear in the cases of Evans v. Lewis, 30 O. S., 11; White v. Gates, 42 O. S., 112.

As to the second proposition, It will be conceded that fraud is never inferred, but must be alleged and proved by clear and convincing evidence. The instrument sought to be set aside in the case at bar is a deed, which the evidence clearly and conclusively shows was properly and legally executed by the grantor and delivered to the grantee; and a court of equity can not and will not set it aside upon the ground of alleged fraud as to a creditor, unless the claim made by the alleged creditor is fully established by that degree of proof which will warrant it under the peculiar facts and circumstances indicated by the evidence submitted in the case, and applying thereto the well established principles of. law applicable to the same.

We feel it is the settled policy of not only this, but other states, as indicated by repeated decisions of our courts of last resort, that deeds executed in conformity to law shall not be set aside except upon such evidence as will clearly satisfy the court that the claim of fraud has been fully and completely established, the mere preponderance of the evidence not being sufficient. • '

Upon the whole ease we are satisfied that the plaintiff has not made out her claim by such clear and convincing evidence as will entitle her to the relief prayed for in her petition. Therefore, the petition of plaintiff is dismissed at her costs; Judgment and decree accordingly.

Shields, J., and Powell, J., concur.


author: Jones (E. H.), P. J.

text:
    WINDOW WASHER. FALLS AND IS KILLED.
    Court of Appeals for Hamilton County.
    Neave Building Company v. William A. Roudebush, Administrator of Clarence Henson.
    Decided, July 14, 1916.

      Negligence — Upon the Part of an Employer — In Insisting that the Decedent Employee Perform a Dangerous Task — Defendant Guilty of Negligence Per. 8e — Where Accident Was Due to Violation of a Municipal Ordinance.

    1. In an action for damages on account of wrongful death, the trial court is warranted in charging that if the direct and proximate cause of the injury was the violation of a valid municipal ordinance the defendant would be guilty of negligence per se.

    2. A reviewing court will not reverse a judgment finding the defendant liable for the death of the intestate, where there was evidence which tended to show, and which the jury evidently accepted as true, that the intestate, a window washer in an office building, protested against washing the windows while there was snow on the sills, but was told by the superintendent of the building that the windows must be washed.

      G. D. Robertson and B. S. Oppenheimer, for plaintiff in error.

      Louis B. Sawyer, Wm. A. Roudebush and George W. Welch, contra.
   Jones (E. H.), P. J.

This is a proceeding in error brought to reverse the judgment of the common pleas court. It is the second time the ease has been in this court. It was originally brought for damages on account of the death of Clarence-Henson, who was a window cleaner, and who, it is alleged, met his death on January 6, 1911, by falling out of a third-story window in the Neave Building in Cincinnati, Ohio.

The petition alleges that while engaged in his employment as a window cleaner he fell to the ground, and that his fall was due to the negligence of the Neave Building Company in three •particulars: first, in not providing some suitable safety device, as required by the following ordinance of the city of Cincinnati:

"In every fireproof or semi-fireproof building now in existence or hereafter erected, every window above the second story thereof shall be equipped with a suitable device which will permit the cleaning of the exterior of such windows without endangering life and .limb. Provided, however, that such device need not be placed on any window that can be easily cleaned from within.”

- Second, that the defendant was negligent in ordering plaintiff to proceed to wash the windows, after he bad complained that there was snow on the window sills which made it dangerous for him to do so. And, third, that his employer did not provide sufficient help for him, so as to give him sufficient time to safely clean his windows.

At the trial now under review the chief controversy seems to have been over the question as to whether or not the ordinance above quoted had been complied with. In this connection we may say that we think that there was no .error on the part of the trial court in charging that the violation of this ordinance on the part of the Neave Building Company would constitute negligence per se. This was the theory upon which the plaintiff evidently relied, and which the trial court adopted. If the special charge which the court gave at the request of plaintiff, to the effect that the violation of the ordinance was negligence, was in itself wrong, then of course the whole ease falls.

After careful consideration we are of the opinion that the charge given upon this point was in accord with the recent decision of our Supreme Court in the case of Schell v. Dubois, Admr., 94 O. S.,-, decided March 3, 1916. The second paragraph of the syllabus of the case just referred to is as follows:

‘ ‘ The violation of a municipal ordinance passed in the proper exercise of the police power in the interest' of public safety and not in conflict with general laws, is negligence in itself, and where such act of negligence by a defendant is the direct and proximate cause of an injury not contributed to by want of due care on tbe part of tbe injured .person, tbe defendant is liable.”

Tbe court having charged upon this branch of the ease correctly as we think, it remained for the jury to decide whether or not the ordinance had been observed by the employer in this particular ease. And this question in turn involved other questions of fact the determination of which was exclusively within the province of the jury. The jury having returned a verdict in favor of the plaintiff, it necessarily follows that they found that the windows in the Neave Building were not easily cleaned from within, and that the device known as “Exhibit No. 3” in this record was not a suitable one.

These, together with the question of proximate cause, were the main questions of fact to which the evidence adduced at the trial was addressed. The general verdict of the jury was, as we think, reinforced by the answers to -certain interrogatories propounded by both sides. Upon these questions it can not be said with any degree of sincerity that there is no evidence in the record to support the verdict of the jury.

It is claimed that the superintendent of the Neave Building asked Mr. Henson, at the time he employed him, whether or not he wanted to use a safety belt, or the safety device above referred to, and that Henson replied in the negative. If, however, the ordinance had not been observed by providing a suitable safety device, the answer of Mr. Henson thus given would in no wise excuse the violation of the ordinance, nor would it change the rule as announced by our Supreme Court, that its violation constituted negligence per se.

The evidence of the superintendent of the building, found on page 96 of the recoid, shows that Henson, when he fell, was engaged in washing the window in Room 203 of the third floor of the Neave Building, and his evidence together with that of Beimeseh supply a want of evidence which this court found to exist when a judgment in favor of the administrator, in this case, w'afe some time ago reversed.

There is evidence, also, to show that Mir. Henson complained that the snow on the window sills at that time made it dangerous for him to attempt to clean the windows and that he was told by the superintendent that the windows had to be cleaned anyway. We fail to find anything in the charge of the court touching upon these allegations of the petition or the evidence in support thereof. There was no complaint from either side about this omission, which was not prejudicial to plaintiff in error.

It having been proven to the satisfaction of the jury that Henson met his death as alleged in the petition, by falling out of the window while engaged in his work, we are of the opinion that this evidence is entitled to weight, and to be considered as additional support for the verdict of the jury and the judgment rendered thereon.

There is a conflict in the evidence with reference to the devices, Exhibits Nos. 3, 3a and 4, which were shown to have been owned by the Neave Building Company and somewhere in the building at the time of the death of Henson, although not in use. The jury heard and passed upon this evidence, and, from their verdict, must have found that the platforms were not suitable devices, taking into consideration the building upon which they were to be used and the manner of occupancy thereof.

Without further commenting upon the evidence in this case, it is sufficient to say that there is evidence to support at least two of the grounds of negligence set up in the petition, viz., the violation of the ordinance, and the order from the superintendent to proceed to wash the windows notwithstanding the complaint of Henson with reference to snow on the sills.

We find no errors in the admission or rejection of evidence prejudicial to the party herein complaining, and that the special charges given, taken in connection with the general charge, constitute a fair and substantially correct pronouncement of the law applicable to the issues in the case.

Finding no errors, and that substantial justice has been done, the judgment will be affirmed.

Jones (Oliver B.), J., and Gorman, J., concur.


text:
    FAILURE IN CHARGE TO JURY TO DISTINGUISH DEFENSES MADE.
    Court of Appeals for Wayne County.
    The Klein & Heffelman Co. v. Martha Peterman and T. J. Peterman.
    Decided, September Term, 1916.
    Woíií of Consideration and Failure of Consideration Distinguished — ■ Error in Failing to Separate Defenses in Charge to Jury — Res Adjudicata — Fraud.
    1. Where the defenses of want of consideration and failure of consideration and fraud are interposed, failure to instruct the jury fully as to each of these defenses and the burden of proof with reference to each constitutes prejudicial error.
    2. The judgment in an equity case, in which the issues joined were tried on their merits and the court found on said issues for the defendant and dismissed the petition, is a complete bar and proper defense to a second action involving the same issues.

      Rice & Souers and Weygmdt'& Ross, for plaintiff in error.

      Critchfield & Hay, contra.
   Houck, J.

This is a proceeding in error in which it is sought to reverse the judgment of the Common Pleas Court of Wayne County, Ohio.

The plaintiff in error was the plaintiff below and the defendants in error were the defendants below.

The basis of the suit below was' to recover the sum of $200 as evidenced by three promissory notes, which were executed by the defendants and delivered by them to plaintiff in part payment of the purchase price of a piano, the sum of $25 being paid in cash.

The notes were secured by chattel mortgage on the piano purchased by plaintiff of the defendants.

The petition contained a second cause of action asking for a foreclosure of said chattel mortgage.

The defendants in their answer admitted the execution and delivery of the notes and chattel mortgage, the cash payment, and by way of defense they alleged fraud in the,transaction on the part of plaintiff, consisting of false and fraudulent misrepresentations concerning the quality of the piano; and for further defenses alleged want of and a failure of consideration for said promissory notes. They also prayed for a judgment for the $25 cash paid.

The reply filed by the plaintiff was in the nature of a general denial; and it further set forth that in a certain suit in equity heretofore filed in the common pleas court of this county by the defendants herein against the plaintiff, that upon issues joined a final hearing was had, on the merits, and all of the matters and things set up in the alleged defenses of the defendants in the case at bar were fully heard and determined by the trial court in favor of the said defendant in that case, being the plaintiff herein, and the plaintiff herein pleads same as a complete bar to the alleged defenses in the present case.

Upon these,pleadings and the evidence the case was submitted to a jury in the court below, and a verdict returned in favor of the defendants in the sum of $25, and the court entered a judgment on said verdict.

Plaintiff in error seeks a reversal of this judgment, and in oral argument relies upon two grounds of alleged error, to-wit:

First. That the court erred in its general charge to the jury.

Second. That the court erred in excluding the evidence offered by plaintiff in support of its plea of res adjudicata.

Counsel fqr plaintiff in error, in support of their first ground of alleged error, insist that the trial judge misdirected the jury as to the burden of proof concerning the defenses of want of consideration and failure of consideration, and, further, that the trial court did not separate from the other defenses the alleged defense of fraud, etc.

In examining the charge of the court we find that the claim of plaintiff in error, in this particular, is well founded.

Want of consideration, in law, means and is a total lack of any valid consideration for the contract, and therefore the alleged contract must fall.

Failure of consideration, in law, is just what the plain meaning of the words convey, that is to say, failure of consideration is. the neglect, refusal and failure of one of the contracting 'parties to do, perform or furnish, after making and entering into the contract, the consideration in substance and in fact agreed upon.

This being an affirmative defense, the burden of establishing it is always upon the one who asserts it.

But it is otherwise where the defense is want of consideration. When want of consideration is set up as a defense, in the answer, an issue of fact is raised upon that point, on which the plaintiff has the affirmative, and, the presumption being prima facie only, and not conclusive, the burden of proof rests upon the plaintiff to establish this fact by the preponderance of all the evidence offered on the question.

From our examination of the charge we think the trial judge did not properly charge the jury upon these questions; that he wholly failed to explain to the jury the law upon whom the burden of proof rested as to the alleged defenses of want of consideration and failure of consideration; and we further find that the trial judge neglected and failed, in his instructions to the jury, to distinguish as to the difference between the defenses of want of consideration and failure of consideration, and that henvholly and entirely neglected and failed to properly charge the jury as to the separate defenses of want of consideration, failure of consideration, and fraud. These being separate and distinct defenses the jury, should have been fully instructed concerning the law as to each and all of them, the proof required to establish each, and all of them, and upon whom the burden of proof rested to establish each of those defenses.

Coming now to the second ground of alleged error, did the court err in excluding the evidence offered by the plaintiff in support of its plea of res ad judicata “l We must answer this question in the affirmative..

From an examination of the record of the equity case, which was offered in evidence by the plaintiff in the instant case and excluded by the court, we find that the suit was brought by the present defendants, prior to the commencement of the case at bar, seeking the cancellation of the same notes and chattel mortgage involved in this case, upon the alleged ground of fraud, etc, being the same as in this case; also it was sought to recover the $25 cash paid, being the same cash payment for which judgment was entered in the present ease. The equity case being tried on its merits upon the- issues joined, the final entry in the case discloses that the court ‘ ‘ found the issues joined in favor of the defendant (the plaintiff in error), and dismissed the petition with costs.”

The issues in the equity case were the same as in the present ease; and the relief sought was the same, which included the judgment for the $25 cash paid; and the judgment in the equity case was certainly a complete bar and proper defense to the allegations in the answer of defendants in the case under review.

This being so, the court below committed prejudicial error in excluding the record and final judgment, in the equity case, from being submitted as evidence in the trial in the common pleas court in the case at bar.

This court has heretofore passed upon this question, and its views may be found in the reported case of Feazel v. Feazel, 24 C.C.(N.S.), page 357.

We also feel that our Supreme Court has finally settled this question, which is decided in the case of Doyle v. West, 60 Ohio State, page 443, in which Judge Mlnshall, speaking for the court, says:

“The policy of the law is against the relitigation of questions of law or fact once heard and determined between the same parties. A question of fact once so determined is binding on the same parties in all subsequent litigation.”

We, therefore, hold there is prejudicial error in the record, as against the rights of the plaintiff in error, as hereinbefore set forth, and, therefore, the judgment of the common pleas court must be reversed, and the cause remanded to the court from whence it came for a new trial or such other proceedings as the law requires. Judgment reversed.

Shields, J., and Powell, J., concur.


author: Chittenden, J.

text:
    TITLE QUIETED AGAINST PURCHASER AT TAX SALE.
    Court of Appeals for Wood County.
    Ella Simpson Powers v. William Henning et al.
    Decided, November 13, 1914.

      Tax Deed — Rendered Invalid by Indefinite Description of the Land Sold —Recovery by Holder of Such Deed for Taxes and Penalties Paid— Limited by the Six Years Statutes of Limitations.

    1. Title may be quieted against the holder of a tax deed embodying a description of the land sold which is so indefinite as to render void the- • proceedings of the forfeited land sale upon which the deed is based.
    2. The amount of the lien which may be asserted by the holder of a tax deed so declared invalid is limited to money advanced for taxes and penalties during the six years last preceding.

      F. H. Seed and B. F. James, for plaintiffs.

      N. B. Harrington, contra.
   Chittenden, J.

This action was brought by the-plaintiff to obtain a decree quieting the title to certain real estate described in the petition. The defendant, William Henning, by .an answer and cross-petition, claims to be the owner in fee simple and in the possession of the property described in the petition, and denies that the plaintiff has any interest in said property, and asks that his 'title may be quieted as against any claim of the plaintiff. The 'defendant, Amos Powers, alleges that on or about the 9th day of December, 1895, one William Hertzer bought the premises described in the petition at a forfeited land sale and that thereafter he paid taxes upon the property at the times and in the amounts set forth in his answer and cross-petition, and he claims that the amounts so paid by him, together with interest thereon, aggregated the sum of $157.44 on the 15th day of March, 1911. He alleges that on March 10th, 1911, the said William L. Hertzer assigned to him the auditor’s certificate of tax sale and all the interest that the said Hertzer had in the premises by reason of the payment of taxes as .alleged, and further that on said March 10th, 1911, Amos Powers obtained a deed from the auditor of Wood county for the above described premises, which deed was thereafter recorded in the record of deeds of Wood county; and he further alleges that since that time he has paid certain taxes upon the property in the amounts and at the times set forth in the petition.

The defendant, William Henning, by his answer to the cross-petition of Amos Powers, sets up that the sale of said premises at forfeited land sale was invalid, and that it had theretofore been so held and adjudicated in this action, and he further alleges that the defendant, Amos Powers, has no lien upon said land for any taxes paid thereon prior to a period of six years ■preceding the filing of the cross-petition of the said Amos Powers ; and he alleges that any action brought to recover taxes paid prior to six years before the filing of the cross-petition is barred by the statute of limitations.

It is further alleged that the deed executed by the auditor is wholly invalid because of defective description and that the proceedings relating to the sale of the premises are wholly invalid for a like reason.

Upon trial of the case the only issue presented was as to the validity of the auditor’s deed and the sale of the property upon which the deed was based, and as to whether or not, if the deed was invalid, the defendant, Amos Powers, had a lien upon the property for the full amount of the taxes paid by him unaffected by the statute of limitations.

The description recited in the deed is as follows: “Henning, William. R. 10, T 3. S 15 NW cor E.NE less Town Lots 8.18 acres.” And in addition the deed sets forth that the property is situated in Henry township, Wood county.

This description is so indefinite as to invalidate the deed. We need only cite the case of Humphries v. Hoffman, 33 O. S., 395, and the cases cited by the court in the opinion on pages 400 and 401. It appears that the same description was used in all the proceedings pertaining to the sale of the property, and we hold that the sale was likewise invalid because of the indefiniteness of-the description of the property.

It therefore remains to inquire as to the extent of the lien of the defendant, Amos Powers, for the amount paid by him for the tax title and subsequent taxes paid thereon.

Section 5766, General Code, provides that the purchaser of lands at a forfeited land sale shall be held in all courts to be the assignee of the state of Ohio, and that the amount of taxes and penalties charged on the land at the time of the sale, together with all legal taxes afterwards paid thereon by the purchaser, shall be a lien on the land and may be enforced as any other lien. By this section of the statutes the Legislature has undertaken to transfer to the purchaser of lands at a forfeited land sale the lien of the state thereon. The statute of limitations does not run against the state, but exemption from the operation of the statute is a privilege of sovereignty, and this privilege can only be asserted by or on behalf of the sovereign. Hartman v. Hunter, 56 O. S., 175.

In the case just cited it was held that a civil action brought by the treasurer of a county to enforce assessments for the construction of' township ditches is barred in six years after the cause of action arises.

It has been held by the Circuit Court of Hamilton County in the ease of Wiltsie v. McClymon et al, 11 C.C.(N.S.), 509, that a plea of the statute of limitations is a good defense against an action to subject lands to the satisfaction of a lien for money paid for such lands at a tax sale which proved invalid.

In that case it was held that Section 11222, General Code, which provides that an action upon a' liability created by a statute, other than a forfeiture or a penalty, shall be brought within six years after the cause of action accrued thereon, governed an action to subject lands to the satisfaction of a lien for money paid for the same at a tax sale.

It is entirely clear that the only right the defendant Powers has in this respect is conferred upon him by Section 5766, General Code, and that his claim is, therefore, one based upon a liability created by statute, and the. six years’ limitation above cited applies.

A decree may be drawn quieting the title of the defendant William Henning, against the plaintiff and against any claim of the defendant Powers by virtue of the tax title evidenced by the auditor’s deed, and providing that the defendant Powers shall have a lien upon the property for taxes within six years prior to the time of the filing of his cross-petition, together with interest thereon.

The plaintiff is required to pay the costs made by her, the balance of the costs to be paid by the defendant Henning.

Richards, J., and Kinkade, J., concur.


author: Gorman, J.

text:
    APPENDICITIS AS THE RESULTsOF A FALL.
    Court of Appeals for Hamilton County.
    The Cincinnati Traction Company v. William Frank, a Minor.
    Decided, June 21, 1915.

      Charge of Court — Modicum of Evidence Supporting Allegations as to Nature of Injuries — Claim that Appendicitis Developed as One of the Results of a Rail.

    1. It is not error to refuse to charge the jury that there is no evidence, which they could consider supporting the claim of the plaintiff that the attack of appendicitis from which he suffered was due to his being thrown upon the street by the premature starting of the car from which he was alighting, where a modicum of evidence has been offered to support this claim of plaintiff.
    2. The injuries sustained by plaintiff in the instant case warranted the - jury in returning a verdict in his favor for $1,200, without regard to his claim that an attack of appendicitis was one of the results of the fall.

      Joseph Wilby and James G. Stewart, for plaintiff in error.

      Galvin & Bauer, contra.
   Gorman, J.

William Frank, a minor about seventeen years of age, brought an action through his father, as nest friend, in the Common Pleas Court of Hamilton County, to recover damages from the plaintiff in error for injuries which he claimed to have sustained about December 7, 1909, as he was alighting from a street ear on Harrison avenue near McLean avenue. He avers in his petition that the car had come to a stop at a point about a hundred feet west of Spring Grove avenue on McLean avenue, and that there was a cross-over at this point where the east bound car running on the south track on Harrison avenue was to cross over to the north or west bound track on Harrison avenue because of some street repairs that were being made on McLean, avenue. He claims that as he was alighting from the car after it had stopped, and before he had an opportunity to do so in safety, the conductor gave the signal to the motorman to start the car,' the ear started with a sudden jerk and threw him to the ground; that he was rendered sick and dizzy and nervous and continued to be in that condition for a long time.

The evidence tends to show that the car upon which the boy was a passenger stopped at a point about 100 or 150 feet west of the intersection of Harrison and Spring Grove avenues, as claimed in the petition; that eight or ten persons alighted from-the car and the boy was the last one, and while he was alighting from the car before he had an opportunity to do so in safety he was thrown to the ground and was injured. He claims that as a result of these injuries appendicitis developed, and about four months from the date of the injuries an operation was performed by Dr. Paul to remove te appendix, which operation was successful.

The jury returned a verdict for $1,200 in favor of plaintiff, and error is now prosecuted to reverse that judgment.

There are but two grounds of error presented in. argument of counsel for plaintiff in error and in their brief. It is claimed, first, that the court erred in its general charge to the jury on the question of the duty of the plaintiff in error with reference to the starting of the car. The court in substance charged the jury that if the car upon which William Frank was a passenger had stopped at the place alleged in the petition, and he was attempting to alight from the ear and while in the act of alighting the agent of the defendant in charge of the car suddenly put it in motion without giving him sufficient time to alight, and that by reason of said starting of the car the plaintiff was caused the injury as alleged, then the defendant was guilty of negligence.

We think this charge is substantially correct, and follows the rule laid by the Supreme Court in the case of Ashtabula Rapid Transit Co. v. Holmes, 67 O. S., 153. The first paragraph of the syllabus in that case is as follows:

‘ ‘ If. a street ear comes to á full stop for any purpose and a passenger is in the act of alighting, it is negligence for the conductor to start the ear before such passenger has had a‘reasonable opportunity to get off safely.”

The same language employed in this paragraph of the syllabus is used by Judge Davis in the opinion of the court on page 155.

The evidence in this case shows that several passengers got off at this point, and the boy, William Frank, testified that the ear was accustomed to stop at this place while the cross-over was in the street and the repairs were being made, and that the passengers usually got off at the point where he undertook to alight on this morning, during the time the repairs were being made on this street. The boy came in on the Westwood cars every day to attend Hughes high school.

We think that the allegations as to the stopping of the car and the starting of the same, and the accident to the boy, were amply sustained by the proof, and that the court did not err in the general charge in the particular complained of by plaintiff in error.

The second ground of error urged by plaintiff in error is the refusal of the court to give a sp.ecial charge requested by counsel for the traction company before the argument, as follows:

"I charge you that there is no evidence in this case which you are entitled to consider, that the appendicitis of the plaintiff, for which he was operated on in April, 1910, was caused by or in any way connected with a fall of the plaintiff, if any, from the par of the defendant, in December, 1909, as testified to by the plaintiff; and the defendant is not responsible for such appendicitis of the plaintiff.”

Counsel for plaintiff in error excepted to the refusal of the court to give this charge.

Upon an examination of the record we are satisfied that there is evidence from which the jury could infer that the appendicitis of the boy, William Frank, resulted from the injury sustained at the time he was thrown from the car in December, 1909. The boy testified that the same day and generally, almost every day after he was hurt as the result of this fall, up to the time when his appendix was removed, in April, 1910, he suffered great and excruciating pain in his stomach and the lower part of his abdomen and in his right side. His father and mother testified that he continually complained of the pain in the lower part of his body about the abdomen. ■ Dr. Paul removed the appendix in April, 1910, about four months after the boy was injured. He said he saw no evidence of the appendix having been affected as a result of a traumatic injury and that there was no sear on the appendix, and in his opinion appendicitis did not result from the traumatic injury. Upon cross-examination he did say that appendicitis could result from a blow or injury about the region of the appendix on the right side of the abdomen. Dr. Musekamp, who attended the boy, testified that appendicitis could and did frequently result from an injury or a blow or a fall. Dr. "Webb, who made an examination of the boy after the operation, testified that he had never heard of a ease of appendicitis resulting from a blow or an injury. Dr. Paul testified that manifestations of appendicitis frequently occurred in persons, continuing over a period of a year or two years, or longer, and that treatment for these manifestations consisted of applications of ice on the parts of the body adjacent to the appendix, and that frequently it was necessary to perform the operation of removing the appendix.

We think that the court would not have been warranted in charging the jury that there was no evidence from which they could infer that appendicitis in this boy resulted from this injury, and that it would have been error for the court to have given such a charge.

While it is the duty of the court to inform the jury, if requested, when there is no evidence of a material fact, nevertheless, the slightest evidence from which the jury may properly infer the fact is enough to preclude1 such an instruction. Bond v. Warren, 41 N. C., 192; Kansas City, M. & B. R. R. Co. v. Burton, 97 Ala., 240, Syl. 10; Central R. R. v. State, 82 Md., 647; Pomeroy v. B. & M. R. R. Co., 172 Mass., 92; Warren v. Halley, 107 Mich., 120.

In Bisewski v. Booth, 100 Wis., 383, a charge similar to the one requested in this case was given, and the Supreme Court of Wisconsin held that it was error to give such a charge.

In the case of Sullivan v. Boston Elevated Ry., 185 Mass., 602, the plaintiff, Sullivan, recovered for injuries sustained by him while driving a wagon, from the seat of which he was thrown by a collision with a car of the elevated railway company. He testified that before the accident his health was good, and he claimed that as a result of his injuries appendicitis followed. There was the evidence of an expert surgeon who testified that such a fall could be an adequate cause of appendicitis. The trial court was asked to charge the jury as follows:

“If the jury find that the plaintiff Sullivan is entitled to recover damages, the jury are instructed that there is no sufficient evidence that the appendicitis from which the plaintiff suffered at a time subsequent to the accident was a result of the accident or that the accident in any way contributed to -the existence of that disease or in any way affected it. If the jury find that the plaintiff Sullivan is entitled to recover they are instructed to disregard, in the assessment of damages, all the evidence introduced in the case in regard to appendicitis or the operation for appendicitis.”

The trial court refused to give this charge, and it was alleged that this refusal was error. The Supreme Court held that it was not error to thus refuse it, and on page 606 the court says:

“Dr. Bottomley’s testimony warranted the jury in finding that the inflammation of the appendix was caused by the collision. He properly was found qualified to testify as an expert and testified ‘that such a fall as Sullivan testified to receiving could be an adequate cause of the appendicitis.’ That was sufficient, taken in connection with the plaintiff’s testimony that his health was good before the accident.” Citing the cases of Mc-Garrahan v. New York, New Haven & Hartford Railroad, 171 Mass., 211; Houston v. Traphagen, 18 Vroom, 23.

In the case at bar, the boy, his father and his mother testified that he had had perfect health prior to his injuries, that he had never had a physician or the services of a physician, and that after the accident he lost weight, was nervous, complained of pains, and was obliged to be removed from school and could not finish his education in the high school. There was evidence tending to show that he was permanently injured.

We are not prepared to say that the evidence before the jury was not of such a character as to warrant the jury in inferring that the cause of the appendicitis was the injury sustained by this boy when he was thrown from the car. Notwithstanding the fact that Dr. Paul testified that in his opinion this was not the cause of the appendicitis, it was proper to submit the question to the jury for their determination, and this was éspecially true in view of the fact that the mother of the boy testified that Dr. Paul had told her after the operation was performed that the appendicitis was the result of a bruise on the appendix. It is true that Dr. Paul denied that he had made such a statement, but this evidence was all proper to go to the jury to enable them to determine whether or not appendicitis was one of the results of the injury sustained by the boy.

The court in his charge to the jury did not allude to the question of appendicitis, but made a proper charge to the effect that if plaintiff was entitled to recover the jury was to take into consideration, in determining the amount of damages, the pain and suffering he had endured as the natural and probable consequences of the injury, the impariment of his health, and the question of whether or not he would be permanently injured after he attained his majority, twenty-one years. We think the charge was as full and fair as could have been asked by the plaintiff in error. It was certainly proper to allow evidence to be admitted as to the nature of the boy’s injuries, the complaints he had made, the location and character of the pains he had endured, and the fact that an operation had been performed for appendicitis. We think there was a scintilla of evidence in the case from which the jury might reasonably infer that appendicitis was one of the consequences resulting from this injury, and if that be true it would have been manifest error for the court to have given the special charge requested by the defendant below.

The amount of the verdict, $1,200, would not be excessive, even if the question of appendicitis were not in the case at all. The boy suffered pain for four months before the operation was performed, and thereafter continued to be nervous and to suffer pain and loss of sleep.

Upon a review of the whole ease we think that the verdict and judgment in this case represent substantial justice and that no reasonable grounds exist for complaining of either the verdict or the judgment. The judgment, therefore, will be affirmed.

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


author: Richards, J.

text:
    AS TO THE TAKING OF TESTIMONY AT THE EXPENSE OF THE STATE.
    Court of Appeals for Wood County.
    Charles Neiswender v. State of Ohio.
    Decided, May 1, 1916.

      Criminal Law — Application to Take Testimony in the Philippines— ' Overruled Because of the Heavy Expense Involved — Comments of Counsel During Trial Not: Properly a Part of the Record

    In the absence of a satisfactory showing as to the materiality of the testimony desired for use in a criminal case, it is not error to overrule an application for an order to take testimony in a distant country, where the expense to the state if the order were granted would amount to as much as two thousand dollars.

      iB. F. James and E. D. Bloom, for plaintiff in error.

      E. K. Solether, Prosecuting Attorney, and C. 8, Hatfield, contra.
   Richards, J.

The plaintiff in error is under indictment for murder. The state made proper application to the court of common pleas for taking the testimony of one Richard Smith in the Philippine Islands. Thereafter counsel for the state, having determined to dispense with his testimony, applied to the court for an order setting aside the former order for the taking of such testimony, and the former order was thereupon set aside by the court against the objection and exception of the defendant below. After this latter order the defendant below applied to the court for an order to take testimony of certain other witnesses in the Philippine Islands. The court after hearing evidence and statements of counsel on both sides, overruled the application, and this proceeding in error is prosecuted to obtain a reversal of the order so made.

The bill of exceptions does not disclose what the evidence was that was desired to be taken, nor that the same was material. It -is apparent from the bill of exceptions and from the statements of counsel that it would involve an expense to the state of $2,000 or -more to provide for the presence of the defendant below and his counsel and counsel for the state in the Philippine Islands at the taking of the testimony. It can not be possible that either side to a criminal case has the right to an order of court to take testimony, at the expense of the state in distant parts of the country, without a satisfactory showing to the court of the materiality of the testimony. If the law were otherwise,"the state would be subjected in many cases to costs so great that it would prohibit the prosecution of crime.

We are not saying that there is any attempt in this case to do that, but the construction contended for by counsel for the defendant below would enable the defense, for instance, to obtain a commission for the taking of testimony in one part of the world, and then about the time that was returned, another commission for the taking of testimony in another distant part of the world, and that without any showing as to the materiality of the testimony.

It can not be that the constitutional convention put into the Constitution a provision justifying that sort of an interpretation, and so we are all agreed in this case that the trial court committed no error in declining to provide for the taking of this testimony, at the expense of the state, and in declining to provide for the transportation of the defendant and his counsel to the Philippine Islands. Neither did the trial judge commit an error in setting aside the order theretofore granted on the application of the state.

Now with regard to the taking of the comments of counsel and transcribing the same in the bill of exceptions, we never have known of a ease where the statements of counsel have been required by the court to be taken, except in the trial of a jury case where it it is claimed that the argument of counsel trespasses upon the rules of propriety. Of course, where it is claimed counsel are guilty of misconduct, the court should, on application, require the remarks to be taken, but in the absence of such claim, we are not aware of any case where the statements or arguments or claims of counsel have been taken. If that were to be done and the same embodied in the bill of exceptions, it would multiply the expense of litigation tremendously. It would multiply the work of the courts and require additional courts to transact the business. Bills of exceptions as now taken are so voluminous that the work of reading the testimony is sometimes a herculean task. For the reasons 'given, we are unanimously of the opinion that the judgment declining to provide for the taking of this testimony at the expense of the state, should be affirmed.

Chittenden, J., and Kinkade, J., concur.


text:
    WRONGFUL DEATH OF PASSENGER. IN AN ELEVATOR..
    Court of Appeals for Hamilton County.
    The Ohio Traction Company v. Alice Flynn, Administratrix of Michael Flynn.

    Decided, February 28, 1916.

      Negligence — Degree of Care Required of the Operator of an Elevator— Passenger Must he Given Time to Secure Sis Balance Before Machine is Started — Judgment of $7,000 for Death of a Young Man.

    1. The highest degree of care consistent with its practical use is required in the operation of a passenger elevator, and this requires that a passenger shall be given time to secure his balance after entering before the elevator is started.
    2. In view of the fact that the Legislature has removed the former limitation on the amount which may be recovered for wrongful death, an award of $7,000 can. not be regarded as excessive for the death of a vigorous man, twenty-six years of age, industrious, temperate and thrifty, who had contributed toward the support of his next of kin and who left surviving him a father and mother and ten brothers and sisters.

      Robertson & Buahwalter and. Harry Neal Smith, for plaintiff in error.

      Pogue, Hoffheimer & Pogue and Joseph L. Meyer, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled b.y the Supreme Court, October 10, 1916.

   Gorman, J.

We are asked to reverse a judgment of tbe common pleas court in favor of defendant in error awarding ber, as administratrix of tbe estate of Michael Flynn, deceased, $7,000 on account of tbe alleged wrongful death of said Flynn by reason of the alleged negligence of tbe plaintiff in error.

Tbe plaintiff’s petition below alleged that Flynn was unmarried, twenty-six years of age, and employed by tbe Cincinnati Traction Company as a motorman; that on tbe day of his death, he had occasion to go to the offices of his employer in the Traction Building at Fifth and Walnut streets, in Cincinnati, and in so doing was obliged to use one of the elevators in said building; that after he entered the cab of said elevator the operator thereof, an employee of defendant, suddenly and negligently started the same before Flynn had reached a position of safety in said cab and before he had secured a firm footing, as a result of which Flynn was thrown forward against the permanent iron work enclosing the elevator shaft and killed. The petition further alleged that the defendant had negligently failed to properly guard the interior of said cab so that when the decedent was thrown forward against the iron work he was dragged s between the iron work and the cab. The petition set out as a third ground of negligence that the operator of the cab failed to stop the cab immediately after throwing Flynn as aforesaid; and as a fourth ground of negligence it was averred that the defendant employed an incompetent and unskilled operator of said cab.

On the trial of the cause the plaintiff abandoned the second claim of negligence to the effect that defendant failed to properly guard the interior of the cabl

It is claimed, first, ’ that the verdict and judgment are not supported by any evidence. On the question of the sudden and negligent starting of the elevator upward before Flynn had put himself in a position of safety in the cab and before he had an opportunity to obtain his balance upon entering the cab, we are of the opinion that there is sufficient evidence to support plaintiff’s claim of negligence. This question was submitted to the jury under proper instructions, and it was a question of fact to be determined by the jury whether or not the operator of the elevator had been guilty of negligence, which proximately caused the death of the decedent, in suddenly starting .the elevator before Flynn had adjusted himself and obtained his balance in the cab.

In the case of Mitchell v. Marker, decided by the United States Court of Appeals for this district, 62. Fed., 139, the fourth paragraph of the syllabus is as follows:

“It is the duty of one operating an elevator to give passengers reasonable opportunity to obtain a balance upon entering the car, before a rapid and sudden upward movement is begun, having a tendency to disturb the equilibrium of one yet in motion; and, therefore, held not error to charge in such a case that it is the duty of the elevator man to see that all his passengers are on, and to give them sufficient time to adjust themselves. ’ ’

Justice Lurton, in deciding this case, says:

“We know of no employment where the law should demand a higher degree of care and diligence than in the case of persons using and running elevators for lifting human beings from one level to another.”

In this case it was also laid down as a rule of law in the second paragraph of the syllabus that:

“A carrier by elevator is not an insurer of the safety of his passengers, but is required to exercise the highest degree of care as in the case of a carrier by railway or stage coach.”

The record discloses that there was sufficient evidence of facts and circumstances attending the death of Flynn to warrant the jury in reasonably inferring that there was negligence in starting the elevator, and that such negligence proximately caused the death of this man.

Secondly, it is contended that there was no evidence to support the claim of plaintiff that there was negligence in failing to stop the elevator immediately after Flynn fell in the cab. There was evidence tending to show that Flynn was thrown or fell as soon as the elevator was started upward and that the operator saw him falling when the elevator had ascended but three or four feet from the ground floor; that the elevator was not stopped until it had almost reached the second floor, eight or nine feet above the ground floor; that the elevator operator was throwing the lever back and forward, as one witness said, “he was monkeying with the lever trying to shut it off;” and there was evidence tending to show thatif the elevator had been going slowly it could have been stopped within three or four inches, and if going fast it could have been stopped, by throwing out the dogs, within a foot.

Under such circumstances we are not prepared to say that the jury did not have before it any evidence- of negligence in failing to stop the elevator before it reached a height of eight or nine feet.

Thirdly, it is claimed that there was no evidence of negligence in employing an incompetent and unskilled operator.

We think the record fails to show any negligence in the employment of the operator of this elevator. He had been employed in that capacity for several years, not only by defendant but by others, and he had had considerable experience in operating elevators, and was not shown to have been incompetent and unskilled when employed by defendant. But aside from this claim of negligence the record discloses evidence sufficient to sustain the verdict, on the other grounds of negligence charged.

It is further claimed that the damages awarded, $7,000, are excessive and obviously influenced by sympathy or prejudice.

The record discloses that this young man at the time he met his death was twentj^-five or twenty-six years of age, a splendid specimen of a strong, healthy, vigorous man who had never been sick, had never lost a day’s time from his work as a motorman during several years; was industrious, sober, hard-working, thrifty, saving and of good moral character, a devoted son to his aged parents, contributing to the support of his parents and next of kin, and at the time of his death he had saved out of his earnings more than $3,100. He left surviving him his father and mother and ten brothers and sisters. If we consider these facts and the further fact that the Legislature has removed the limits to the amount that may be recovered in cases of this character and that the jury is to be the judge of the reasonable amount that may be allowed, taking into consideration all the facts and circumstances of each ease, we are not prepared to say that the verdict and judgment are so excessive as to require this court to set aside the verdict and grant a new trial.

For the reasons stated, the judgment will be affirmed.

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


author: Richards, J. Kinkade, J.,

text:
    ASSAULT WITH INTENT TO COMMIT RAPE.
    Court of Appeals for Wood County.
    Emery Allen v. State of Ohio.
    Decided, May 19, 1915.

      Criminal Law — Evidence as to Reputation — Charge of Court with Reference to Assault with Intent to Commit Rape.

    1. On the trial of a defendant indicted on a charge of rape, witnesses who testify in his behalf that his general reputation for morality is good, may be asked on cross-examination if they have not heard reports or rumors of specific instances of lascivious conduct on his part with other women, although that line of cross-examination would not be proper if the witnesses had testified to his good character, only. State v. Dieherson, 77 O. S., 34.
    2. The substance of complaints made by the prosecutrix in an indictment for rape, is admissible in evidence if the complaints are made immediately or soon after the offense, but if delay ensue, it must be excused by facts or circumstances introduced in evidence.
    3. Where the charge of the court on the included offense of “assault with intent to commit rape,” erroneously denominates it “an attempt to commit rape,” but accurately defines the elements constituting the offense, the error is not prejudicial, and the conviction will not be reversed therefor.

      Ladd & James, for plaintiff in error.

      Earl K. Solefher, Prosecuting Attorney, contra.
   Richards, J.

Tbe defendant was indicted and tried on a charge of rape committed on September 26th, 1914, and convicted of an assault with intent to rape.

It is insisted that the verdict is not sustained by sufficient evidence, and that error was committed in the reception of evidence and in the charge of the court. We have read all the evidence contained in the record with care, and are unanimously of the opinion that there is sufficient evidence to sustain the verdict, and a majority of the court, if sitting as triers of the fact, would have found on the evidence that the defendant was guilty. No useful purpose would be gained by a review of the evidence and we therefore omit the same.

It is claimed that the court erred in admitting evidence in the cross-examination of witnesses who testified to the reputation of the defendant. Some of these witnesses were inquired of if they had not heard of the relations of the defendant with other women at a place called Haneytown, which they denied. We think that line of cross-examination would be proper where a witness had testified to the general reputation of the defendant in that respect, but the record fails to disclose an exception taken to the admission of such evidence.

The defendant on numerous occasions objected to the introduction of evidence of complaints made by the prosecutrix immediately or soon after she claimed to have been raped. The admissibility of this class of evidence is not an open question in Ohio. Whatever may be the rule elsewhere, it is settled in this state that the substance of what' the prosecutrix said in making complaint immediately after the offense was committed, is competent evidence to corroborate her testimony. Some of these complaints were not made immediately after the commission of the offense, but in each ease the delay was excused by circumstances shown in the evidence. McCombs v. State of Ohio, 8 O. S., 643; Dunn v. State, 45 O. S., 249.

It is further insisted that the charge contains error to the prejudice of the defendant. The trial judge in charging on the subject of the included offense of assault with intent to commit rape, uses that phrase interchangeably with the phrase, an attempt to commit rape, but when he comes in the charge to define the. statutory elements necessary to be found by the jury in- order to enable that tribunal to return a verdict of guilty of an assault with intent to commit rape, he does so with accuracy.

In the case of Fox v. State of Ohio, 34 O. S., 377, the verdict found the defendant guilty of an attempt to commit rape, and this was held to be error. The verdict in the case at bar is drawn in accordance with the statute, and finds the defendant guilty of an assault with intent to commit rape, so that, while the trial judge in his charge commented on an attempt to commit rape as if it were an offense, yet in view of the fact that he properly charged as to the elements constituting the offense of which the defendant was convicted, it does not appear that the jury was misled, or that the charge was prejudicial.

We have examined other portions of the charge which have been subjected to criticism, but find no prejudicial error. The judgment will, therefore, be affirmed.

Chittenden, J., concurs.

Kinkade, J.,

concurring.

While I think the judgment in this case must be affirmed, under the rule laid down by the Supreme Court in the case of Breese v. State, 12 O. S., 146, nevertheless it seems to me there was abundant evidence to raise a reasonable doubt as to the guilt of the accused in the mind of any juror, and had I been a juror in the case I would not have voted to convict him on the evidence submitted.


text:
    AS TO WHETHER. THE SALE IN QUESTION WAS A CONDITIONAL SALE.
    Court of Appeals for Hamilton County.
    William E. Barrs v. The Rudolph Wurlitzer Company.
    Decided, February 7, 1916.

      Sales on the Installment Plan — Error in Taking Case from Jury— Where a Determination is Required as to Whether Title Passed.

    Where goods are purchased on the installment plan, the amount remaining due being evidenced by notes secured by chattel mortgage, and the goods are afterward retaken by the vendor, it is error in an action brought by the vendee, for recovery of the amount paid on the theory that the transaction was a conditional sale, to withdraw the case from the jury, where testimony has been offered tending to prove it was understood at the time the sale was made that title to the goods was to remain in the vendor.

      Chas. II. Urban, for plaintiff in error.
    W. 8. Little, contra.
   Gorman, J.

The plaintiff in error commenced an action in the common pleas court against the defendant in error averring in his petition that he had purchased from the defendant for the sum of $2,400 a certain musical instrument termed a “Paganini,” upon the following terms and conditions, to-wit: $200 cash, and the balance of $2,200 to be paid in twenty-two monthly installments of $100 each, with interest; the title of said instrument to remain in the name of the Rudolph Wurlitzer Company until the entire sum of $2,400 was paid. Plaintiff in error further averred in his petition that on or about June 1, 1912, the said instrument was delivered to him, and he thereupon paid $200 cash on said purchase price that he paid the first eight installments next becoming due, together with the interest thereon, amounting in all to the sum of $1,018; that on or about the 3d of September, 1913, the defendant in his absence and without his consent took possession of said instrument without due process of law, and without tendering or refunding to plaintiff the money so paid after deducting therefrom a reasonable compensation for the use of said instrument. He asks for a judgment from said defendant in the sum of $1,080, with interest,. upon the claim that the purchase of said instrument was under a conditional sales agreement, and that under the provisions of Section 8570 of the General Code he was entitled to recover from defendant the amount of money so paid before the defendant was warranted in taking from his possession said instrument.

The defendant by answer' admitted the sale to have been on June 1, 1912, and that it was to be for $2,400 — $200 cash and the balance of $2,200 to be paid in twenty-two monthly installments of $100 each with interest; but denies that the title waste remain in the name of the Rudolph Wurlitzer Company until the entire sum of $2,400 was paid. Defendant admitted that on June 1, 1912, said instrument was delivered, and that plaintiff paid $200 on account of the purchase price, and that the first eight installments of $100 each were paid, together with interest; admitted that on the 3d day of September it took possession of said instrument, but averred that it took possession at plaintiff’s request; it denies each and every other allegation of plaintiff’s petition.

- Defendant further set up.by-way'of cross-petition several notes and a chattel mortgage claimed- to have been executed by the plaintiff in favor of the defendant, and asked for a decree of foreclosure of the chattel mortgage, and a decree finding the amount to be due under the mortgage.

The plaintiff replied' denying that the defendant took possession of the instrument at the plaintiff’s request, and denied that he executed and delivered the chattel mortgage to defendant to secure said notes.

Upon the trial of the case plaintiff, to maintain the issues offered himself as a witness, and, among other things, testified: that one Ulrey, who was the agent of the defendant company, negotiated the sale of the Paganini to him; that on or about the 1st day of June, 1912, Ulrey went to plaintiff’s place of business and there made the sale.

The court asked plaintiff, Barrs, the following question:

“You made the purchase of the machine. Now the question is what did Mr. Ulrey say about that, that is the question? A. (By Barrs.) Mr. Ulrey told me that the title of the machine remains in the hands of the Rudolph Wurlitzer Company until the notes were paid.
“Mr. Urban:
‘ ‘ Q. How did he come to tell you that ? A. I asked him if I was unable to pay these notes, who does this machine belong to, and he says; ‘You will be able to pay them all right’ he says: ‘I will fix boxes and things around so that you will get some kind of money derived from these boxes’ and I said ‘Well suppose I don’t?’ ‘Well,’ he says ‘the title of the instrument remains in the hands of the Rudolph Wurlitzer Company’; so -I purchased the machine. ’ ’

Plaintiff’s brother was also called and testified, among other things, as follows:

“Edward Bernard Barrs.
“Q. What did you hear Mr. Ulrey say, and what did you bear your brother, Mr. Barrs, say? A. When I got there he asked him, he says, ‘To whom will the instrument belong, Mr. Ulrey ? ’ And Mr. Ulrey said: ‘ The instrument will always remain the property of the Rudolph Wurlitzer Company until the notes are paid.’ ”

This was practically all the testimony offered by the plaintiff in support of his claim that the sale was a conditional one. At the close of plaintiff’s testimony, when he had rested, a motion was made by the defendant to direct the jury to return a verdict for the defendant. After argument the court said:

“I have examined the record in this ease and the testimony shows that- Mr. Barrs — the record shows that Mr. Barrs testified that after he signed the notes and mortgage he asked Mr. Ulrey what would be the effect of thalt. Whbréupdn Mr. Ulrey told him ‘Well, you can pay it all right, I will fix it so that you will make some money; you will be able to pay all right. ’ After that he said ‘Well suppose I don’t make any money?’ ‘Well’' he says, ‘the title remains in the Rudolph Wurlitzer Company.’
“Therefore the petition will be withdrawn from the consideration of the jury. Now there is a cross-petition here that can be either continued or set for trial in another court or tried here.”

Plaintiff excepted to the ruling of the court withdrawing the petition from the consideration of the jury.

It is claimed by plaintiff in error that there was evidence to go to the jury upon the question of a conditional sale, and that the trial court erred in withdrawing from the consideration of the jury the case made by the plaintiff in error and in refusing to allow the jury to pass upon the question of whether or not there was a conditional sale.

There was evidence offered during the trial of the case, by the defendant, consisting of the agreement in writing dated April 19, 1912, some time before the sale was made, in which this instrument was placed in the plaintiff’s place of business by the Rudolph Wurlitzer Company on two weeks trial, and it was agreed that during the time it was on trial in plaintiff’s place of business he might purchase the instrument for $2,400 — $250 cash and the balance at the rate of $100 per month, the amount taken out of said instrument during the two weeks trial period shall be applied in liquidation of said purchase price, and the deferred payments to be evidenced by promissory notes secured by mortgage on said instrument. This paper was signed by William E. Barrs. It was not offered in evidence at the time plaintiff moved for an instructed verdict, nor could it properly have been offered in evidence at that time inasmuch as it was a part* of the defense. It was offered in evidence subsequently to the ruling of the court upon the motion to arrest the case from the jury. A chattel mortgage on said instrument, dated June 1, 1912, was also offered after this ruling. There was evidence tending to show that the Rudolph Wurlitzer Company went to the plaintiff’s place of business and took away without process of law the musical instrument without the consent of the plaintiff.

We held that this case should have gone to the jury, under the rulings laid down in Speyer & Co. v. Baker, 59 O. S., 11. Among other things the conditional sales act, Section 8570, General Code, provides:

“When such property” (property sold under a conditional sales agreement) “except machinery, equipment and supplies for railroads and contractors, for manufacturing brick, cement and tiling, for quarrying and mining purposes, is so sold or leased * * # the person who sold, leased * * * or the agent or servant of either * * * shall not take possession of such property without tendering or refunding to the purchaser, lessee,” etc., # * * “the money so paid, after deducting therefrom a reasonable compensation for the use of such property, which in no case shall exceed fifty per cent, of the amount so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed in the contract or not. But the vendor shall not be required to tender or refund any part of the amount unless it exceeds twenty-five per cent, of the contract price of the property. ’ ’

In the case under consideration the purchaser paid by admission of the pleadings, more than twenty-five per cent, of the purchase price — $1,018. There was evidence tending to show that, the vendor took possession of the property without paying or tendering back any part of the money paid on account of the purchase price, and if it were a conditional sale then the plaintiff, the purchaser, was entitled to recover under Section 8570, General Code.

At was shown in the case above cited, Speyer & Co. v. Baker, that a chattel mortgage had been given upon the goods sold by Speyer & Co. It also appeared from the record that in the trial of that case in the common pleas ' court evidence was given which fairly tended to prove that, when the sale was made to the defendant, it was verbally agreed between the parties that the goods should remain the- property of plaintiff until the purchase price be fully paid, and should become the property of defendant only upon such payment being made. The court, on page 24, says:

“There was evidence at the trial, though it was not without conflict, from which the jury might have found that the sales made by the plaintiffs to the defendant of the property in question were conditional sales of the character defined by the statute. ’ ’

It appears to be the intent of the statute to permit the person who complains that the sale was a conditional one to show by parol evidence that it was a conditional sale, notwithstanding any contract or agreement in writing to the contrary. And in the case above cited, notwithstanding the fact that there was a chattel mortgage given to secure the payment of the unpaid balance for the goods, the court held that it was admissible to show by parol evidence that it was not an absolute sale but a conditional one.

In the instant ease there was evidence tending to show that the title to this property sold to Barrs was to remain .in the Wurlitzer Company until the entire sum of $2,400 was paid. It was for the jury to say, under the circumstances whether or not it was a conditional sale, and the court erred in withdrawing from the consideration of the jury the plaintiff’s petition. It should have been submitted to the jury at the close of all the evidence under proper instructions.

It may be claimed that the rule laid down in Speyer & Co. v. Baker, supra, was modified by the case of Chicago Cottage Organ Company v. Crambert, 78 O. S., 149. In that ease it was sought to show by parol evidence that there was a conditional sale, and the parol evidence was admitted. The evidence in that case which it is claimed tended to show a conditional sale was as follows: Mr. Morey, a salesman of the company, made the sale in that case.

(Page 157.) “She (the vendee) looked at some of the pianos, and she was asked to ‘tell the whole transaction.’ Ans. ‘As I was saying, I looked at the pianos. I saw a piano I liked, and I told him I would like to take that piano, and of course he told me it was a good piano, and I asked him what the piano cost. He said two hundred and sixty-five dollars, and the agreement I made with him, I would pay ten dollars down. That was the agreement I made, and six dollars a month, and I paid him ten dollars and he said, ‘ Now, Miss Crombert, I know you will be prompt in your payments. ’ I said ‘ I will try to be as prompt as I can,’ and he said, ‘when you have the piano paid for — when all the payments are paid up the piano will be yours.’ ”

It will be noted that nothing was said about where the title was to remain until the piano was paid for, and the court in that case held that the statement that the piano would be Miss Crambert’s when it was paid for, when made by the agent was a mere expression of opinion. The court says, on page 159-160:

“Neither party said a word about the title remaining in the vendor and therefore the minds of the parties never met on that point. What the salesman said about the piano becoming her property when the payments were made, is but the expression of an opinion. Whether he was authorized to make the remark or not is immaterial, because in our judgment it did not establish, or tend to establish, a contract between the purchaser and the company, that it should hold the title until the payments were made. The expression of an opinion by the salesman falls far short of making a contract of conditional sale.”

It appears, therefore, that this last cited ease does not in any way affect the ruling laid down in Speyer & Co. v. Baker. The evidence in the case under consideration did tend to establish a conditional sale, and it was proper to submit the question of whether or not this was a conditional sale to the jury for its determination.

For the reasons stated the judgment below will be reversed and the case remanded for a new trial.

Jones (E. EL), P. J., and Jones (Oliver B.), J., concur.