text:
    ERROR — NEGLIGENCE.
    [Guernsey (7th) Court of Appeals,
    December Term, 1913.]
    Metcalfe, Norris and Pollock, JJ.
    National Coal Co. v. Earl L. Potts.

      4. Whether Machinery Shafting Question of Law.
    Whether certain parts of machinery .are shafting within the provisions of Sec. 1027 G. C., there being no conflict in the testimony as to the character, appearance and operation' of such parts, is not a question for the jury but a question of law for the court.
    2. Jury Finding Machinery Shafting Erroneous.
    It is reversible error for the jury to find that such parts of machinery are shafting within the provisions of Sec. 1027 G. C., and to return a verdict in part thereon in favor of the plaintiff in a case charging negligence in respect to the same.
    [Syllabus by the court.]
    Error to common pleas court.

      Charles S. Turnbaugh, for plaintiff in error.

      J. H. Mackey, for defendant in error:
    Cited and commented upon by the following authorities: Jones v. Railway, 10 Dee. 348 (7 N. P. 592); 'Rhoenix Ins. Co. v. Romeis, 8 Circ. Dec. 633 (15 R. 697); Burdge v. State, 53 Ohio St. 512 [42 N. E. Rep. 594]; Turpin v. State, 19 Ohio St. 540; Morgan v. Spangler, 20 Ohio St. 38; Kroll v. Close, 82 Ohio St. 190 [92 N. E. Rep. 29; 28 L. R. A. (N. S.) 571] ; Lake Shore & M. S. Ry. v. Liidtk, 69 Ohio St. 384 [69 N. E. Rep. 653] ; Gale v. Priddy, 66 Ohio St. 400 [64 N. E. Rep. 437] ; Blake v. Davis, 20 Ohio 231; Leach v. Church, 10 Ohio St. 148; Fries v. Mack, 33 Ohio St. 52; Schiveinfurth v. Railway, 60 Ohio St. 215 [54 N. E. Rep. 89] ; Drea v. Carrington, 32 Ohio St. 595; Zumstein v. Mullen, 67 Ohio St. 382 [66 N. E. Rep. 140]; Logan Nat. Gas <& Fuel Co. v. Chillicothe, 65 Ohio St. 186 [62 N. E. Rep. 122]; Sedgwick, Stat. Interp. 225; Sutherland, Stat. Const. Secs. 218, 219; Cincinnati v. Guckenberger, 60 Ohio St. 353 [54 N. E. Rep. 376]; Robbins v. State, 8 Ohio St. 131; DeBolt v. Insurance Go. 1 Ohio St. 566; Ilenry v. Perry Tp.

      (Tr.), 48 Ohio St. 671 [30 N. E. Rep. 1122] ; Chinese Merchant, In re, 13 Fed. Rep. 605; Woodworth v. State, 26 Ohio St. 196; State v. Nye, 21 Dec. 419 (11 N. S. 616) ; State v. Goshen Tp, (Tr.) 14 Ohio St. 569; Allen v. Little, 5 Ohio 65; State v. Miller, 21 Dec. 643 (9 N. S. 247); Foster v. Wood Co. (Comrs.) 9 Ohio St. 544; Cass v. Dillon, 2 Ohio St. 609; Kelley v. Kelso, 5 Ohio St. 200; Exchange Bank v. Hines, 3 Ohio St. 1; State v. Blake, 2 Ohio St. 147; Cincinnati v. Conner, 55 Ohio St. 89 [44 N. E. Rep. 582] ; Hall v. Seigrist, 13 Dec. 46; State v. Kinney, 11 Circ. Dee. 261 (20 R. 325); Horton v. Horner, 16 Ohio 146; State v. Wright, 17 Ohio 32; A.ultman v. Guy, 41 Ohio St. 599; Westlake v. Westlake, 47 Ohio St. 315 [24 N. E. Rep. 412]; State v. Railway, 32 Fed. Rep. 722; Ellis v. Whitlock, 10 Mo. 781; Fath Construction Co. v. Bausmerth, 33 O. C. C. 382 (15 N. S. 150); Burt v. Rattle, 31 Ohio St. 116; McGarvey v. Raih way, 83 Ohio St. 273 [94 N. E. Rep. 424] ; Lake Shore & M. S. Ry. v. Benson, 85 Ohio St. 215 [97 N. E. Rep. 417] ; Glass v. Heffron Co. 86 Ohio St. 70 [98 N. E. Rep. 923] ; Black v. Hill, 32 Ohio St. 313; Kilbourn v. Fury, 26 Ohio St. 153'; Foster v. Borne, 56 Ohio St. 772,; Independent Coal Co. v. Bank, 27 O. C. O. 297 (6 N. S. 225) • Studer v. State, 29 O. C. C. 33 (9 N. S. 385); Lake Erie & W. Ry. v. Mackey, 53 Ohio St. 382 [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. 640],
   NORRIS, J.

This is an error proceeding to reverse a judgment for damages rendered in a personal injury case. The defendant in error, Potts, in his petition in the court of common pleas, after alleging the corporate organization of the plaintiff in error, hereinafter called the coal company, alleges further that on April 27, 1909, he was in the employ of the coal company operating an engine which was used for the purpose of driving a fan in connection with a coal mine. He further alleges that in the ‘ ‘ operation of said machinery the piston rod, the same being about twenty-seven inches long, was fastened at its east end with an iron connecting rod about three feet long, which in turn was connected at its east end with an iron crank about fifteen inches long, the other end whereof was fastened to the south end of said fan shaft and all the same, so fastened together was a shaft operating horizontally near the floor to drive said fan shaft and the fan, and was a part of said engine and an appliance thereof; that when the engine was in operation the movement of the piston rod forward and backward, which in turn drove said crank, causing the' crank to move in a revolving manner in a circle having the end of the fan shaft for its center, all the same together in this matter operating horizontally near the floor, as heretofore alleged, and all of which in operation revolved said fan shaft and the fan , attached to the north end thereof; that in operation the said shaft, consisting of said piston rod, connecting rod and crank, moved in a line parallel with and only about one-quarter of an inch south of the south side of the foundation, and the end of the crank whereto the iron connecting rod was attached, at the farthest point east to which it was driven in operation, went beyond the southeast corner of the piece of iron resting crosswise on the foundation at the east end about thirteen inches, and went beyond the east edge of the foundation about three inches, and at its farthest point downwards went below the south end of the cross piece of iron and the top of the foundation about eleven inches. ’ ’

He further alleges that the said machine and its appliances were in a defective condition in the following respects: Said revolving fan shaft and the piece of iron whereon its bearings rested was set so near the east edge of the foundation that the crank in its revolution passed beyond the southeast corner of said piece of iron about thirteen inches, and passed beyond the east edge of the foundation about three inches; that the fan shaft extended beyond the south line of the foundation but three inches, because whereof said shaft consisting of said piston rod, connecting rod and crank worked on a line within one-quarter of an inch of the south line of the foundation and south thereof; that the fan shaft and its bearings lay within six inches of the top of the foundation, by reason whereof the crank in its revolution went beyond the level of the top of the foundation; that the condition of the machine was further defective in these several respects, to wit: “Said shaft consisting of said piston rod, connecting rod and crank fastened together and operating, as hereinbefore alleged, horizontally near the floor of the building, and not cased or boxed, said crank was too long and in revolution described a circle about thirty inches in diameter and passed beyond the southeast corner of said piece of iron whereon the shaft rested, and beyond the east edge of the foundation and passed belo-vy the level of the top of the foundation, and in operation was liable to jerk anything coming in contact with it down between it and the foundation. ’ ’

While greasing said machinery plaintiff says that in the exercise of due care some of the rags in his hand caught in the said crank which suddenly jerked his right hand down between the south end of a piece of iron lying crosswise, and said crank as it descended in its motion, injuring his hand by crushing and cutting off the first three fingers thereof.

The defendant, for answer, denies all charges of negligence and alleges that plaintiff’s injuries were caused by his own negligence. The case was tried to a jury who returned a verdict in favor of the plaintiff for $2,200, and also, at the request of defendant, returned the following special verdicts:

Special verdict No. 1. Do you find that said piston rod and connecting rod and crank fastened together was a shaft or shafting ? Answer, Shafting.

Special verdict No. 2. If you find by your general verdict in favor of the plaintiff, state whether or not you find in favor of plaintiff upon all or part of the negligence alleged in plaintiff’s amended petition? Answer, Part.

■ If your answer to above question is that you find for plaintiff upon part of the negligence alleged in his amended petition, then state which negligence or negligences you so find in his favor, and also state whether you find that operating alone or together plaintiff’s injuries were caused thereby. Answer, Deficient in construction of foundation and lack of boxing or casing of shafting together.

The first error alleged is that the special verdict No. 1, as submitted by counsel for defendant to the court, did not contain the words “or shafting” at the end thereof, and that the court committed error in adding those words to the special verdict.

Without discussing the question as to the right of the court to amend a special verdict, we think the addition of the words “or shafting” were in no wise prejudicial to the defendant.

It is now urged that whether ór not this engine piston rod and the connecting rod and crank which turned the shaft were “shafting,” was a question of law for the determination of the court and not a question for the jury, and that the court erred in submitting it to the jury, but this question was submitted to the jury at the request of defendant and if it was error defendant cannot now complain, but this still leaves the question as to what it was, and as to whether or not the finding of the jury upon that question was manifestly against the weight of the evidence. It may be said at the start that there was no conflict in the evidence as to the description of the piston rod, connecting rod and crank. Photographs of these appliances were brought into the record showing views of them from different standpoints, and there is no controversy as to how they operated.

The question arises under Sec. 1027 G. G. which provides:

“The owners and operators of shops and factories shall make suitable provisions to prevent injury to persons who use or come in contact with machinery therein, or any part thereof as follows:
1. They shall case or box all shafting operating horizontally near floors, or perpendicularly between, from or through floors, or traversing near floors, or when operating near a passage way or directly over the heads of employes.”

Now, is the definition or meaning of the word “shafting” as used in that section and applied to machinery, a question of fact for the jury or a question of law for the court? And, whichever it is, does the piston rod of an engine, cross head, connecting rod and crank come within the provisions of that statute ? There being no dispute as to the exact character of these appliances, we think it was clearly a question of law for the court to determine whether or not these pieces of machinery taken together came within the provisions of that statute. Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66; Lake Shore & M. S. Ry. v. Liidtke, 69 Ohio St. 384, 400 [69 N. E. Rep. 653]; Cincinnati Gas Co. v. Archdeacon, 80 Ohio St. 38 [88 N. E. Rep. 125; 23 L. R. A. (N. S.) 910; 135 Am. St. Rep. 735]. Now, the ordinary meaning is do be given to words used in the statute. Slingluff v. Weaver, 66 Ohio St. 621, 627 [64 N. E. Rep. 574]; Smith Bridge Co. v. Bowman, 41 Ohio St. 37, 52 [52 Am. Rep. 67]; Tyler v. Winslow, 15 Ohio St. 366.

Two witnesses, both called by plaintiff, who were engineers, "testify in substance that thes.e appliances referred to were not .generally understood to be or called “shafting.” We do not "think any definition can be found of the word “shafting” which "would include a piston rod of an engine and the connecting rod ■and crank. We do not think they are ever called shafting by people who describe machinery, but again, as stated in Rhodes v. Weldy, 46 Ohio St. 234 [20 N. E. Rep. 461; 15 Am. St. Rep. 584], reading from the syllabus:

“Where the same word or phrase is used more than once in the same act in relation to the same subject matter and looking to the same general purpose, if in one connection its meaning is clear and in another it is doubtful or obscure it is in the latter case to receive the same construction as in the former, unless there is something in the connection in which it is employed, plainly calling for a different construction.”

Now, in this same section, See. 1027, subdivision 3, we find "the word “shafting” used as follows:

“They shall cover, cut off or countersink keys, bolts, set •screws and all other parts of wheels, shafting or other revolving .machinery projecting unevenly beyond the surface of such revolving machinery. ’ ’

Clearly the legislature in the use of the word “shafting” in that section, used it as it is generally understood, as a revolving shaft connecting the power to machinery, and did not use it in the sense of a piston rod and connecting rod.

To the same effect is Raymond v. Cleveland, 42 Ohio St. 522, 529, and Norris v. State, 25 Ohio St. 217, 224 [18 Am. Rep. 291]. So that it follows that we find as a matter of law that the piston vod, connecting rod and crank were not shafting within the meaning of that statute, and that the special finding of the jury is manifestly wrong. It follows from that, that inasmuch as the jury found or based their verdict in part because of lack of' boxing or casing of shafting, that their verdict is manifestly against the evidence.

The judgment of the court of common pleas will be reversed and the case remanded for a new trial.

Metcalfe and Pollock, JJ., concur.


source: Caselaw Access Project

author: ROCKEL, J.

license: Public Domain

text:
    CHASTITY — CRIMINAL LAW.
    [Montgomery (2nd) Circuit Court,
    December 23, 1910.]
    Rockel, Dustin and Allread, JJ.
    Christina Smith v. State of Ohio.
    1. Reputation of House to Room of Which Minor under Seventeen’ Years Taken for Illicit Intercourse Admissible in Prosecution for Contributing to Her Delinquency.
    Where a person is charged under See. 1654, G-. C., with contributing to the delinquency of a minor under seventeen years oE age, by renting a room to her for the purpose of illicit intercourse, and the testimony shows that the minor went there for that purpose, it is not error to permit testimony to be given, as to the reputation of the house in which such room is located.
    2. Duty of Owner of Assignation House to Know that Visitors and Servants Obey Law.
    Where a person owns and conducts' a house of ill-repute, the/ duty is imposed on her to know that those whom she permits in her house and to act apparently as her servants, shall obey the law, and in case they do not she as principal and proprietor of the house in which the delinquency occurs is. liable to pay the penalty of the statute.
    3. Owner of House of Assignation Guilty of Contributing to Delinquency of Minor Admitted by Servant.
    A person owning and conducting a house of ill-repute is guilty of contributing to the delinquency of a minor under seventeen years of age, where it is shown that such minor was admitted, by a person apparently acting as a servant or employe and. making no inquiry as to the age of the minor.
    4. Charge in Entirety Understood to Correctly Apply Law not Erroneous Because Some Statements not Clear.
    Where the charge of the court, taken in its entirety, is such, that it is evident that the jury understood it in a manner so as to correctly apply the law, it will not be held erroneous even though it contains some statements that are not strictly clear or proper.

      Error to common pleas court.

      Nevin & Kalb fus, for plaintiff in error.

      Carl W. Lens, for defendant in error.
   ROCKEL, J.

(Orally.)

The plaintiff in error was tried in the juvenile court (Secs. 1639 to 1683, G. C.), the affidavit charging the offense being as follows:

“Before me, Roland W. Baggott, judge and ex-officio clerk of the probate court in and for said county, personally came Carl W. Lenz, who, being duly sworn according to law, deposes and says, that on or about April 30, 1910, at the county of Montgomery aforesaid, one Christina Smith then and there being, did aid, abet, cause, encourage and contribute toward the delinquency of Madeline Shultz and Marjorie Spear then and there minors under the age of seventeen years, to wit, of the age of sixteen years, in this, to wit: that she the said Christina Smith did on or about April 30, 1910, rent to the said Madeline Shultz and Marjorie Spear and Edward Grimes and John Young, a room for the purpose of illicit intercourse and in divers other ways and times she the said Christina Smith did willfully and unlawfully contribute toward the delinquency of the said minors, Madeline Shultz and Marjorie Spear, she the said Christina Smith well knowing the said Madeline Shultz and Marjorie Spear to be such minors contrary to the statute in such ease made and provided.” * * *

The case was submitted to a jury and the jury returned a verdict for the state; a motion was filed to set aside the said verdict and the same was overruled; the plaintiff in error then filed her petition in this court alleging the usual grounds of ■error, the verdict not supported by sufficient evidence, contrary to law and for error occurring in the trial of the case. One of the principal contentions of error was in reference to the admission of testimony introduced establishing the reputation of this house and of the place where it was charged that these persons went upon that occasion. There are cases to be found upon both sides of this proposition, but we think that the authorities support the contention principally that such testimony may be introduced. Wigmore, Evidence See. 78, says:

“If it distinctly appears in the statute that the repute of the house is the essential criminal fact, so that merely to keep a house of that reputation is the offense, then the reputation is a fact in issue, and the reputation may be shown, irrespective of the actual character or use of the house. ’ ’

Now, I might call attention to the statute (Sec. 1644, G. C.) in this respect, charging what would constitute a delinquency — ■ one of the phrases being as follows: “or who knowingly visits or enters a house of ill-repute.” Ill-repute of itself means bad reputation and therefore to enter a house of that kind it becomes one of the elements of the crime. In another place Wigmore has this statement, Sec. 204:

“It has already been seen (ante, par. 78) that, apart from •statutes constituting the repute of the house as the sole element ■of the crime of professional pandering, the character or use of the house and the character or occupation of the inmates may ■come into issue. Two questions having a bearing here are thus presented: (1) May particular instances of prostitution,in the house be offered, as showing its habitual use or character? (2) May particular acts of prostitution by the inmates be offered, as showing their occupation or character as prostitutes? Both these questions should be answered in the affirmative, for the ,same reasons as in the preceding class of cases. ’ ’

I might say further that in this case the evidence unquestionably shows that these girls had been in this house before and went there for the purpose of prostitution. So it seems there is no doubt of that question being proved and that there was no ■error in the admission of the testimony as to reputation.

Another matter relied upon in error is the charge of the court. To be properly understood it is necessary to give it in its entirety:

“Before you enter upon your duties it is incumbent upon the court to charge you upon the law that is considered applicable to the case; such is the court’s duty and it is your duty to act in accordance therewith. You, however, are the sole judges of the facts and you are not to be guided by anything counsel might say to you, or that the court might say to you.
“This is a case wherein the defendant, Christina Smith, is-charged with aiding, abetting, causing, encouraging and contributing towards the delinquency of one Madeline Shultz, a minor, under the age of seventeen years. To this charge the defendant has entered a plea of not guilty, which puts the matter in issue before you. ’ ’

Then the charge quotes the sections of the statutes and continues :

“You are not interested with the amount of the fine; that you have nothing to do with; but whoever aids, abets, entices, encourages or contributes towards the delinquency of a minor,, and then provides what the penalty shall be.
“You are to find in this case that on or about April 30,. 1910, that Christina Smith did aid, abet, cause,- encourage towards the delinquency of Madeline Shultz; you are also to find that beyond a reasonable doubt.
“You are to find beyond a reasonable doubt that on April 30, 1910, that Madeline Shultz was then a minor under the age-of seventeen years. This as I say, you are to find beyond a reasonable doubt, and that is a doubt that may, or rather an honest uncertainty that may exist in the mind of a candid impartial juror having a full and careful consideration of all the-testimony, having the sole desire to ascertain the truth, not a. mere speculative doubt voluntarily excited in your mind to avoid, the rendition of disagreeable verdict.
“You are to find, of course, that this offense was committed in Montgomery county, state of Ohio.
“There has been some testimony introduced in this case to-show the reputation of Madeline Shultz for chastity before April 30. The testimony might indicate that that reputation for chastity before that time was bad, and that the reputation- of' Marjorie Spear and Marie Shultz was bad. With that you are solely concerned as to their right to be believed. Their veracity, their credibility, whether or not they were good girls in nowise concerns you.
“You must find that when you find that they are guilty or when you find that this defendant is guilty of an offense, that Madeline Shultz was under the age of seventeen years on April 30; further than that you have nothing to do with her reputation.
“And I also charge you as a matter of law if you find beyond a reasonable doubt that Madeline Shultz was under the age of seventeen years on April 30, 1910; that she in company with anyone went to the house of Christina Smith on or about the date named in the affidavit and you find that the house conducted by Christina Smith was one of assignation, and a place where persons of opposite sex met for the purpose' of illicit intercourse,, in determining the guilt or innocence of this defendant, it is not necessary that said Christina Smith had actual knowledge of the-presence of said Madeline Shultz. As I charge you, and as I believe the law views it, it is her business to know. She is to satisfy hereself and if you find all these things to be true beyond a. reasonable doubt, your duty would be to return a verdict of guilty.
‘ ‘ If you do not so find beyond a reasonable doubt it will be your duty to return a verdict of not guilty. ’ ’

The objection made to this charge is that the court in effect told the jury that they must find certain things by not putting it in the alternative, but we think that the jury was not misled by this charge; that they understood fairly well from it that they must find all these things, as stated in the conclusion of the-charge, these things, beyond a reasonable doubt. It is true the charge might have been better upon that question and ought, perhaps, to have been stated in the alternative, but trial courts, sometimes inadvertently with the numerous matters that arise in the trial of a case do not state all things as plainly as they should be. We think, however, the jury was not misled in this, charge that they knew what they were to find and how they were to come to that conclusion — they must find all these things beyond a reasonable doubt.

Another question raised is whether the verdict is sustained by the testimony or the weight of the evidence. There is no direct testimony offered in this case that Christina Smith was. actually present in this house when these girls were there, or that she actually did know that they were there at the time alleged, and it is argued that in a charge of this kind she could not be convicted under the statutes unless it be shown that she had knowledge that these people were there. The testimony shows conclusively that Madam Smith lived there — a number of persons testified to that fact; had for twenty-five years one person testified — and these people, John Young and Grimes, the young men who went with these girls, had been in this house before for the express purpose of assignation. Marjorie Spear had been in this house before for that purpose; and when they were there before they saw Madam Smith in charge. Now, then, when these young people met at Lafayette Hall for the purpose, for the express purpose of going to this place for assignation, they went there because they knew or testified that they knew, that it was a place of that character. When they went there the person that let them in was a maid, it was not Madam Smith, because they knew Madam Smith; it was some one apparently in charge of the house; the maid, a person who let them in the door, assigned the rooms to them and came afterwards to collect the toll. So it seems that they were justified in believing that this person was the maid of Madam Smith and that Madam Smith was still the proprietor. However, as to the testimony of Madam .Smith being present at this time, we have the testimony of John Young, one of the parties,' who says that he saw her in the morning. These people stayed there all night and left next day about 10 or 11 o’clock. He says he saw her in the morning; he personally knew who she was. Marjorie Spear saw her in the morning; she knew her because she had been there before. During the time that they were there some one called up from down ■stairs telling them that they should not make so much noise. This wasn’t the maid, as they all testify. So we think that the testimony would support the finding of the jury that she really was there, and a maid in her employ who was in charge. The maid didn’t ask the girls their age; no inquiry was made upon that question there or at a previous time they were there. There is a line of cases in Ohio which seems to be proper to be followed in cases of this bind. In the “sale of oleomargarine at retail,” a case reported in Williams v. State, 25 O. C. C. 673 (4 N. S. 193), affirmed without opinion, Williams v. State, 69 Ohio St. 570, in the syllabus it is said:

‘ ‘ 1. Where an affidavit charges one with unlawfully selling oleomargarine and the evidence shows that the sale was made by an employe, who was authorized to sell the article, this'is not a variance. It was not necessary to allege that the sale was made by an agent or employe. In misdemeanor all are principals.
“2. * * * wrhere the oleomargarine was sold by a clerk in the store of the accused, who was engaged in the business of selling oleomargarine to the public, with other merchandise and who authorized its sale by his clerks,, in the ordinary course of business, it is no defense that he had instructed such clerk and all of his clerks in the store, not to sell oleomargarine, except under its true name. * * *
“3. One who engages in the business of selling oleomargarine to the public and permits and authorizes its sale by his clerks or employes, is bound to see that the law regulating its sale is complied with, and if it is violated by such employes or clerks, the employer is liable under the statute. ’ ’

In the ease at bar, at least, the state made out a prima facie case, when it showed that these persons went there, and some person apparently in. authority permitted them to enter the house. If this person admitting them was not a person in authority or there was a defense that Madam Smith, did not know or had no opportunity of knowing the age of this child, she could have made a defense of that character. The opinion in the last quoted ease is quite lengthy. Several intoxicating liquor cases are cited in support, one from Wisconsin: ‘ ‘ The sale of intoxicating liquors to a minor is an offense under Sec. 1, Chap. 128, though the vendor does not know that the purchaser is a minor. ” And then there is cited the case State v. Kelley, 54 Ohio St. 166 [43 N. E. Rep. 163].

“An affidavit to charge a violation of the act of March 20, 1884, Section 8805, ‘to provide against the adulteration of food and drugs’ need not charge that an adulterated article- of food is sold to be used as human- food.
“In a prosecution under said act, it is not a defense that the accused is ignorant of the adulteration of the article which he sells or offers for sale.”

At the conclusion of Williams v. State, supra, this language occurs which we think is applicable to the case at bar:

“We think in holding as we do, we are following- the principles and spirit of the case in the 54th Ohio St. In the absence of a decision directly in point, we are of the opinion it ought to be the law, and we hold it to be the law', that where one engages in a business of this kind, he does it at his peril, and that the duty is imposed upon him to know that those whom he employs to sell this article to the public obey the law in the manner of selling it, and in case they do not, that he, as the principal and proprietor of the establishment, is liable to pay the penalty assessed by the statute. We feel that any other holding would practically destroy this statute and thwart the object and purpose that the legislature had in view. We believe it to be a wholesome law and that it should be construed so that it may be enforced.”

The judgment of the court below will be affirmed.

Dustin and Allread, JJ., concur.


author: MARVIN, J.

text:
    BANKRUPTCY.
    [Cuyahoga (1st) Circuit Court,
    May 18, 1908.]
    Marvin, Winch and' Henry, JJ.
    Charles D. Collins v. William J. Davidson.
    1. Debt of Bankrupt not Discharged by Misnaming Creditor by Bankrupt.
    A debt of a bankrupt due William J. Davidson is not discharged by scheduling it in the name of William F. Davison.
    2. Action by Creditor not Collateral Attack upon Bankruptcy Charge.
    An action by Davidson on his debt against the bankrupt would not be a collateral attack upon the discharge in bankruptcy.
    [Syllabus by the court.]

      Error to common pleas court.

      J. P. Dawley, for plaintiff in error.

      Weed, Miller & Nason, for defendant in error.
   MARVIN, J.

Davidson brought suit against Collins and for his cause of ■action set out that he held and owned a valid judgment against Collins, on which was due him from Collins something more than $150.

To this, the only answer of Collins is that on March 23, 1905, he was discharged in bankruptcy from all debts and ■claims, which by the bankruptcy laws of the United States were made payable against him or his estate, which existed on May 15, 1902, and that the claim, of Davidson was one of those included in the discharge; that said discharge is still in full force.

Davidson admits by his reply that Collins was discharged in bankruptcy and that the order of discharge is in full force, but he denies that his claim is included in the discharge.

Prom the facts as agreed upon between the parties it appears that in the schedule of liabilities filed with the petition in bankruptcy the name “William J. Davidson” does not appear as a creditor; nor did he have actual knowledge of the proceeding in bankruptcy until after the order of discharge was made.

There was, however, in the schedule of liabilities, the name of “William P. Davison,” whose residence was given at Cincinnati, Ohio, which was the place of residence of William J. Davidson. Notice of the proceedings was mailed to William P. Davison, Cincinnati, Ohio. Collins had no creditor by the name of William P. Davison residing at Cincinnati, Ohio.

The case was tried to the court, a jury being waived, and Davidson recovered. The present proceeding is brought to reverse such judgment. It is urged first, that Davidson’s suit against Collins is in effect a collateral attack upon the discharge, which can not be maintained. This is unsound. No ■attack, collateral or otherwise, is made in the suit of Davidson, upon the order of discharge. It is not contended that it is not in full force, but only that Davidson’s claim is not affected by it. This' seems perfectly clear, but if there ever could have been any doubt on the subject, it is settled by adjudication. The Supreme Court of Wisconsin in the case of Custard v. Wigderson, 150 Wis. 412 [110 N. W. Rep. 263], had the precise question before it, and the court held that though the order of discharge could not be ■ collaterally attacked, the creditor, whose claim was not properly scheduled, and who was without actual notice, could maintain his action upon it.

The supreme court of New York, in Sutherland v. Lasher, 41 Misc. Rep. 249 [84 N. Y. Supp. 56; 11 Am. Bankr. Rep. 780], made the same holding, using this language in the syllabus :

“It does not constitute a collateral attack upon the discharge, generally, for the judgment creditor to oppose the motion to vacate his judgment where he merely insists thereon that the discharge did not discharge his particular claim.” And in the opinion, at page 782, it is said:
“On behalf of the motion it is further urged that the discharge in bankruptcy can not be collaterally attacked in this proceeding. No such attempt is made by the plaintiff. The validity and effectiveness of the discharge in general are not questioned, the only point raised being that it does not extend to this particular claim, for the reasons above mentioned.”

There remains, then, for consideration, only the question of whether the schedule giving the name “William F. Davison, Cincinnati, Ohio,” and the mailing of notice so addressed, was sufficient to charge William J. Davidson, of Cincinnati, Ohio, with notice.

Under the bankruptcy act of 1867 it was held in several cases, and perhaps uniformly, that a clerical mistake in the name of a creditor, who had no actual notice, was not fatal to the claim that the debt was included in the discharge. See Thornton v. Hogan, 63 Mo. 143 [17 National Bankr. Rep. 277], where it was held that a debt scheduled under the name of William T. Thomson and notice addressed by mail to him was sufficient, though the.real name of the creditor intended was “William T. Thornton. See also Thomas v. Jones, 39 Wis. 124, and Osborn v. Dobrinz, 85 Wis. 252 [55 N. W. Rep. 403]. Under the present statute, however, the decisions are at variance with those under the formér.

In the case of Custard v. Wigderson, supra, this language is used in the opinion:

“But it will be seen that under the act of 1867 debts not scheduled were not excepted from the operation of discharge while under the bankruptcy act of 1898 they are. Section 17, Bank, act 1898, provides that a discharge in - bankruptcy ‘shall release a bankrupt from all his provable debts, except such as have not been duly scheduled.’ This provision is a marked departure from former bankruptcy acts, and decisions under such acts, to the effect that scheduling was not necessary in order to bring the debt within the order of discharge. The words of the present act, however, are plain and unambiguous, and there can be no doubt that they mean what they say; and if so, unless the debt is duly scheduled in time for proof and allowance, or the creditor had notice or actual knowledge of the proceedings in bankruptcy, it is not affected by the discharge. ’ ’

Further on in the opinion this is said:

“So far as the courts have spoken upon the subject, since the bankruptcy act of 1898, they hold that extreme exactness must be used in scheduling the creditors by name in the bankruptcy proceedings.”

The above case is followed by citing a large number of authorities.

In this case it was held that the schedule giving the name “A. Castard” was not such as to bar “Custard” from maintaining an action on his claim, notwithstanding the discharge.

To the same effect is the case of Haack v. Theise, 51 Misc. Rep. 3 [99 N. Y. Supp. 905; 16 Am. Bankr. Rep. 699], where in the opinion this language is used:

“The schedule of debts which the bankrupt files furnishes the basis for the notice to be sent and thus the bankrupt appears to be made responsible for the correctness of the list of his creditors.”

So far as the probability that a letter mailed to William F. Davison, Cincinnati, Ohio, would reach William J. Davidson, Cincinnati, Ohio, it may be illustrated by referring to the city directory»of Cleveland, the population of the two cities not differing widely in number. There are ten Davisons given in the Cleveland directory, one of whom is given as “Wm.” and one as “W.” In the same directory at least fifty David-sons are given, two of whom are Wm., one Wm. A., one Wm. L., two Wm. B., one Wm. D., and one Wm. W.

It will thus be seen that the notice sent in this case, addressed as the debt was scheduled, would in all probability faiL to reach the real creditor. The debt was not properly scheduled, and the judgment of the court was right and is affirmed.

Winch and Henry, JJ., concur.


author: HENRY, J.

text:
    MUNICIPAL CORPORATIONS — OFFICE AND OFFICERS.
    [Cuyahoga (8th) Circuit Court,
    November 9, 1910.]
    Marvin, Winch • and Henry, JJ.

      Andrew B. Lea v. State ex rel. Baker.
    Director of Public Service Reauired to Certify Vacancy to Civil Service Commission before Merit System in Full Operation,
    An action lies to compel a director of public service to certify a vacancy to the civil service commission, notwithstanding at the time of the occurrence of the vacancy the civil service commission had not prepared rules and regulations adapted to carry out the purpose of the civil service act with reference to examinations and promotions.
    [Syllabus by the court.]
    Error to common pleas court.

      Mathews & Orgill, for plaintiff in error.

      Newton D. Baker, city solicitor, for defendant in error.

       Affirmed, no. op., Lea v. State, 83 O. S. 518

   HENRY, J.

The parties to this proceeding in error stand here in the relation opposite to that in which they stood in the court of common pleas. The action there was brought by the city solicitor to compel the director of public service of the city of Cleveland to certify a vacancy in the position of inspector of street lighting to the civil service commission, to the end that said commission might certify back to him the names of three qualified persons, from among whom to choose in filling said vacancy, pursuant to the provisions of “An act to amend and supplement certain sections of the municipal code of 1902,” etc. (99 O. L. 562.)

Among the new provisions of law in this act are those of Secs. 157 to 165 inclusive of the municipal code (Secs. 4479-4488, Gen. Code) extending the merit system of appointment to all but certain excepted positions in the municipal service. These sections became effective January 2, 1910.

Section 129 of the municipal code (Sec. 4247 Gen. Code) was amended by the same act (99 O. L. 562), and this part of the act became effective August 1, 1909. It provides among other things that “the directors and officers provided for in this act shall have the exclusive right, subject to the limitation herein prescribed, to appoint all officers, clerks and employes in their several respective departments or offices, and shall likewise, subject to the limitations herein prescribed, have sole power to remove or suspend any such officers, clerks or employes.”

The present inspector of street lighting was appointed January 29, 1910, after the civil service commission was appointed, but before it had prepared rules and regulations adapted to carry out the purposes of said act as provided by Sec. 159 thereof (Sec. 4480 Gen. Code).

The theory of the petition below is that he was appointed pursuant to Sec. 165 of said act (Sec. 4488 Gen. Code) which reads as follows:

“To prevent stoppage of public business or to meet extraordinary exigencies, as provided in this act, the mayor may make temporary appointments. ’ ’

The contention of the defendant below is that the present inspector of public lighting was appointed pursuant to the general appointive power vested by Sec. 129 in “the directors and officers” of the city for “their several respective departments.” He argues that the fact that rules and regulations bad not yet been prepared by the civil service commission to put the merit system into actual operation can not be deemed to have suspended the general appointive power of heads of departments and to have restricted the exercise of the appointive power to the making of emergency appointments by the mayor.

It seems clear, however, that no such dilemma was created by the circumstances which then obtained. It was not necessary that the civil service commission should complete preparation of rules and regulations and other preliminaries to the full operation of the merit system, in order to respond to a notification that the occurrence of a vacancy required the certification of three persons eligible to fill it. The provisions of See. 160 of the act (Sec. 4481 Gen. Code) are plain and imperative :

“Appointments shall be made in the following manner: The appointing board or officer shall notify the commission of any vacancy to be filled. The commission shall thereupon certify to such board or officer the three candidates graded highest in the respective lists as shown by the result of such examination. Such board or officer shall thereupon appoint one of the three so certified.”

If delay ensued in following out of this procedure, so as to threaten “the stoppage of public business,’'’ the mayor might “make temporary appointments” until the commission could act.

But it does not appear on this record that any effort was made to have the commission act. When the vacancy occurred it was filled without certifying the- fact of vacancy to the commission at all. The commission might well have been able to expedite their action if occasion had arisen calling upon them to act.

The action below was decided on the pleadings, a demurrer to tbe answer having been sustained and judgment rendered. We discern ,no error in this record, and the judgment is affirmed.

Marvin and Winch, JJ., concur.


author: WINCH, J.

text:
    CRIMINAL LAW — PERJURY.
    [Summit (8th) Court of Appeals,
    September 29, 1913.]
    Grant, Winch and Meals, JJ.
    David Ruch v. State of Ohio.
    1. Falsity of Statement of Witness in Murder Case Provable in Perjury Prosecution.
    In a prosecution for perjury for falsely swearing in a murder case that he saw the murdered man knocked down by another at a certain place, the falsity of the statement may be proved by a witness who was either with the murdered man at the time, or with the witness accused of perjury.
    2. Counsel's Statement to Jury in Murder' Case Outlining Defense Competent in Perjury Case to Show “Material Matter” Falsified.
    The statement to the jury of counsel for the accused in a murder case outlining the defense, presents an issue of fact for the determination of the jury, and may be introduced in evidence in the trial for perjury of a witness who testified in the murder case, as tending to show that the perjured testimony was “as to a material matter in a proceeding before a court.”
    3. Charge on Reasonable Doubt in Perjury Prosecution that Acquittal of Guilty Person Weakens Safeguard of Society not Erroneous.
    In a trial for perjury it is not error for the trial judge to charge the jury as follows: “It is proper for the court to remind you that the issue in this case is to the defendant of so grave a nature, and to the public safety and the proper administration of justice of such vital importance, that upon your part there should be no error. In considering the rights of the accused, if you should be convinced in your judgment beyond a reasonable doubt of his guilt as charged in the indictment, do not forget that by each acquittal of a guilty person the safeguard erected by society for its protection is weakened. By the nonenforcement of penalties affixed to criminal acts, contempt for the law is bred among the kind of persons that it is intended to restrain.”
    [Syllabus by the court.]
    Error to common pleas court.

      Musser, Kimber & Huffman, for plaintiff in error.

      H. F. Castle, Pros. Atty., and C P. Kennedy, Asst. Pros. Atty., for defendant in error:
    Cited and commented upon by the following authorities: Wharton, Crim. Ev.(10ed.)791 ;Jones v. State, 26 Tex. App. 1 [9 S. W. Rep. 53] ; People v. Boody, 172 N. Y. 165 [64 N.‘ E. Rep. ¿>07]; Flemister v. State, 81 Ga. 768 [7 S..E. Rep. 642]; Franklin v. State, 38 Tex. Cr. 346 [43 S. W. Rep. 85] ; Plummer v. State, 33 Tex. Cr. R. 202 [33 S. W. Rep. 228]; 1 Elliott, Evidence Sec. 15; Underhill, Crim. Ev. Sec. 3073; 12 Cyc. 426; 16 Cyc. 1202; State v. Courtright, 66 Ohio St. 35 [63 N. E. Rep. 590].
   WINCH, J.

Plaintiff in error was convicted of perjury, sentenced to three years in the penitentiary, and sentence suspended during good behavior. He claims that his sentence should be set aside for three reasons: first, because the state failed to prove its case against him; second, because improper evidence was admitted on the trial, and, third, because the court erred in its charge to the jury.

In considering the first allegation of error, it is necessary to examine the details of the charge of perjury made against the accused and the facts which must be proved by the state in order that a conviction may be had for that crime.

David Ruch was a witness for the defendant in the case of 'State v. Ross, who was accused of killing one Harry Hanna hy means of a blow with a heavy stick upon the head of Harry Hanna, which caused a fracture of the skull and a hemorrhage resulting in the formation of a blood clot within the skull which pressed upon the brain until it caused death.

Ross.was convicted of manslaughter. In his trial he admitted striking a blow with a stick upon the head of Harry TLinna., but claimed that the blow struck was delivered when he was lawfully ejecting Hanna from his saloon at midnight on a Saturday night, that it was delivered in self-defense, and that the blow was not sufficient to have caused the death of Hanna. During his trial he introduced evidence that Hanna that night had received other' injuries upon his head which might have caused death: one a fall upon the pavement in the rear of the rathskeller in the city of Akron, after Hanna had left his saloon; and the plaintiff in error, David Ruch, was offered as a witness in behalf of Charlie Ross, and testified that at twenty minutes after 12 o’clock on the night Hanna was injured, he saw him knocked down by a man on West Market street, some distance from Ross’ saloon, which was on Howard street, and that this man afterwards bent over Hanna as if to go through his pockets and rob him.

Ruch also testified in the Ross case that he kept Hanna in sight after he arose from this attack, and saw him . stagger until he had proceeded east to Howard street and south on that street to the rathskeller, where he also saw him fall on the pavement.

The undoubted purpose of this evidence of Ruch was to suggest that Hanna came to his death as the result of the blow given him when he was felled to the ground on West Market street by a man whom he described in such a way as to fasten suspicion upon one William Metzger, who was the companion of Hanna in the saloon when Ross put them out and was the principal witness for the state in the case against Ross.

That Ruch gave the testimony claimed to be perjured on oath lawfully administered in a proceeding before a court, was admitted by him, but that it was false, he denied and he still insists that the falsity of his testimony was not established upon his trial by that amount of evidence which is required in perjury cases.

On this subject the court properly charged the jury, according to the rule laid down in the case of State v. Courtright, 66 Ohio St. 35 [63 N. E. Rep. 590], as follows:

“ ‘It is the law of this state that there can not be a conviction of perjury on the sole testimony of one witness.’ To warrant a conviction under an indictment for perjury there should be at least one witness tó the falsity of -the matter assigned as false. It is then essential that the testimony of this witness be corroborated, either by another witness, or by circumstantial evidence sufficiently strong to satisfy you beyond a reasonable doubt of the guilt of the accused.”

It is claimed that no witness to the falsity of Euch’s testimony was introduced, but that he was convicted upon circumstantial evidence alone.

On this point it is proper to note that Euch testified that he saw Hanna knocked down by a man on West Market street at twenty minutes after twelve. It was necessary for the state to prove that he did not see Hanna knocked down at that time and place. This it could prove by a witness who was either with Euch at the time, or with H'anna at the time.

It produced such a witness in the person of William Métzger, who testified that he went into Eoss’ saloon with Hanna before 12 o’clock, left the saloon with him and continued with him until half-past twelve, accounting for their actions all that time until he left Hanna at the corner of Market and Howard streets, after seeing him start south on Howard street. He testified positively that Hanna was not on West Market street all that time, which included the time set by Euch when he saw Hanna on West Market street, and so, if Metzger was telling the truth, Euch perjured himself.

. The evidence of other witnesses was also given, corroborating Metzger’s statements as to where he and Hanna were during the half hour, after midnight, and where Hanna was thereafter until his death, so that the rule was complied with and the falsity of Euch’s testimony was abundantly proven.

The second- claim of error — that improper evidence was admitted over the objection of plaintiff in error — is involved in the first proposition, for the ruling complained of was the admission in evidence against Euch of the opening statement, of counsel for Eoss in the Eoss ease, in which said counsel stated, among other' things:

“We expect to show this fellow (Hanna) was staggering around town and been knocked down by other people, and been robbed, and had fallen down at least half a dozen times on the .pavement, and on the curbing and sidewalk, striking his head.
“The evidence will also show that when the police searched him there was only $3.69 on his person — that this money had disappeared somewhere. That’s part of onr evidence that he was robbed and suffered violence.”

It was claimed for this evidence in the Ruch case that it proved the materiality of his testimony in the Ross case, and that was a thing necessary for the state to prove, for the statute, Sec'. 12842 Gen. Code, requires that the falsehood charged must be “as to a material matter in a proceeding before a court.”

No complaint is made that the state failed to show that Ruch’s false testimony was as to a material matter in the Ross case', and indeed no such complaint could be made, for it bears internal evidence that it was as to a material matter; but it is claimed that it was error to admit the statement of counsel for Ross, outlining his' defense, as evidence that Ruch’s testimony was as to a material matter, for, as it is said, counsel for Ross was not counsel for the witness Ruch and could not bind the latter as to whether his testimony was upon a material matter or not.

It may be true that counsel for Ross could not make an admission in the Ross case which would bind Ruch in the perjury case, but his statement to the jury in the Ross case presented an issue for its determination in that case as certainly as an answer of a defendant in a civil case would do to make up an issue therein, for there are no pleadings in a criminal case and the issues are made up by the indictment and plea, and under the plea the evidence of the defendant.

To prove that Ross did not kill Hanna, counsel said he would show that somebody else did, and to show this he offered Rueh’s testimony. An examination of it shows that it was offered for no other purpose.

Confessedly it was material to Ross’ defense, and no prejudicial error resulted from permitting the statement of counsel for Ross in the murder' case, to go to the jury in the perjury ease.

The third allegation of error is in regard to that portion of the charge to the jury wherein the trial judge said:

“It is proper-for the court to remind you that the issue in this ease is to the defendant of so grave a nature, and to the public safety and the proper administration óf justice of such vital importance, that upon your part there should be no error.
“In considering the rights of the accused, if you should be convinced in your judgment beyond a reasonable doubt of his guilt as charged in the indictment, do not forget that by each acquittal of a guilty person the safeguard erected by society for its protection is weakened. By the nonenforcement of penalties affixed to criminal acts, contempt for the law is bred among the kind of persons that it is intended to restrain.”

It is claimed by this statement the court emphasized too strongly the duty of the jury in its consideration of the case in rendering a verdict on behalf of the state.

Such can not be the case. It was proper for the court to remind the jury that the case was of 'importance to the state as well as to the accused. He is to be commended for saying what he did about the crime of perjury, as is the prosecuting attorney for bringing the case and prosecuting it to a conviction.

The testimony of Bueh in the Boss ease is set out in full in the récord of his own case. It shows falsehood upon its face. It was a deliberate effort on the part of Buch to thwart justice, and deserves the severest censure a. judge can give it, for what use are judges and juries if perjury is committed with impunity?

This crime is altogether too prevalent in both civil and criminal cases. It goes unrebuked too often, because it is so common that officials as well as the public generally become accustomed to it.

Perjury lays its ax at the roots of justice. It saps its life until it withers and decays. The whole growth of justice is from truth; without it, it can not live.

“Vice is a monster of so frightful mien
As, to be hated needs but to be seen;
Yet seen too oft, familiar with her face
We first endure, then pity, then embrace.”

We have endured perjury too long; the difficulty of convicting of perjury, because of the burden put upon the prosecutor by the law, as somewhat indicated in the propositions discussed in' this case, and the paucity of convictions when indictments have been reluctantly returned in clear cases, shows that we pity the perjurer, and it it high time in these stirring years of reform that miscarriage of justice in grave cases which offend all the people should be minimized by more drastic efforts to clear the temple of justice of all offenders. An enlightened public opinion upon this subject is first needed, and then, perhaps, our judges and prosecutors will better appreciate their duty in this respect. A good example has been set the people of Summit county by prosecutor, judge and jury in this case.

It may be that judges would awaken to their duty sooner if the legislature of this state were to authorize them, as they are authorized in New York state, when it appears probable that a witness has committed perjury, to immediately commit him to jail, or take a recognizance for his appearance to answer an indictment for perjury.

David Ruch had a fair trial on his indictment for perjury. No error intervened therein. He was leniently dealt with in his sentence, for it was suspended on condition that he would quit drinking, keep out of saloons, and behave himself as a good citizen. He has nothing to complain of.

The judgment is affirmed.

Grant and Meals, JJ., concur.


text:
    EXEMPTIONS.
    [Cuyahoga (1st) Circuit Court,
    May 18, 1908.]
    Marvin, Winch and Henry, JJ.
    M. C. Poelking v. Eldridge & Higgins Co.
    Judgment Creditor Entitled to Excess of Value of Goods Over $500 not Exceeding Judgment and Costs.
    On replevin by debtor’s wife of goods claimed as exempt from execution and levy to satisfy a judgment against her husband, the creditor is entitled to judgment for the excess of value of the goods over $500 and not exceeding the amount of the original judgment and costs.
    Error to common pleas court.

      Burrows c& Mason, for plaintiff in error.

      Carr, Stearns <& Chamberlain, for defendant in error.
   MARVIN, J.

■ The plaintiff, Mrs. M. C. Poelking, is the wife of Henry Poelking. He kept a grocery in this city. He was sued by the Heintz Company, and judgment obtained against him and execution was levied upon his stock of groceries. He demanded that certain goods be set off to him as exempt, in lieu of a homestead. Just what was done under this demand is not clear from the evidence. The constable said nothing about it in his .return to the'execution, nor was it necessary, for he sold enough to satisfy the judgment and costs, and it is not claimed that he sold any that was set off as exempted, if any was set off. The constable is not clear in his testimony about that. If the jury had returned a verdict which necessarily carried with it the fact that the property was properly appraised and. set off, as exempt, perhaps we would not disturb it. If the finding necessarily carried with it the fact that the goods were not so set off, it is doubtful whether we would disturb that.

A definite finding, however, on this question, is not necessary to a determination of the case now under, consideration.

After the conclusion of the proceedings in the Heintz case, •already mentioned, the defendant in error in this case recovered a judgment,against Henry Poelking and caused execution to be levied on the goods, which the present plaintiff claims were allowed as exempt, to her husband, in the former claim. The •constable, in the execution of his levy took possession of the goods. Mrs. Poelking then brought suit in replevin, claiming to own the goods, by reason of a transfer of the same to her by her husband, after they were set off as exempt in the Heintz •case. She gave the statutory bond and the goods were released to her. The defendant in error was joined with the constable, and the result of the trial was a verdict and judgment for $340 in favor of the defendant, the Eldridge & Higgins Co.

Whatever the fact is as to whether the goods were exempted to the husband, it is certain that if he transferred them to his wife, he did so without consideration, and while he was in debt beyond his ability to pay, and so, if they could have been subjected to the payment of the defendant’s claim, before such transfer, they could equally well be so subjected after the transfer.

If when the goods were levied upon to satisfy the defendant’s claim, the value was sufficient to allow the $500 exemption to which either Mr. or Mrs. Poelking was entitled, and still leave a surplus, such surplus was subject to be applied in satisfaction of defendant’s judgment, and the present plaintiff having retaken the goods, after giving the statutory bond therefor, the defendant was entitled to a judgment in the action to the extent of such surplus, not exceeding the amount of its judgment and costs. The evidence was such as to warrant the jury in finding that the goods taken in replevin were of such value as to provide the $500 exemption, with enough in addition to,satisfy 'the claim of the defendant.

If they so found, the verdict was right and we can not •disturb it. It is affirmed.

Winch and Henry, JJ., concur.


text:
    COMPROMISE AND SETTLEMENT.
    [Cuyahoga Circuit Court,
    December 14, 1908.]
    Henry, Marvin and Winch, JJ.
    B. F. Stafford v. L. B. Simmons.
    Agreement to Settle Disputed Claim for Less Than the-Full Amount not Bar to Recovery of Full Claim.
    An agreement to settle a disputed claim for less than the full amount thereof is no bar to' a recovery of the full amount claimed, unless the less amount is paid.
    [Syllabus by the court.]
    Error to common pleas court.

      3. F. Herrick, for plaintiff in error.

      Dorr E. Warner, for defendant in error.
   MARVIN, J.

The relation of the parties to each other here is the reverse of the relation in which they stood in the court of common pleas. The terms plaintiff and defendant as used in this opinion will refer to the parties as they were in the original action.

The plaintiff brought suit against the defendant for a balance claimed on account of compensation for services rendiered by the plaintiff to the defendant upon a farm owned by the defendant in Geauga county, Ohio, said services having been rendered under contract, by which the defendant was to pay the plaintiff at the rate of $50 per month. The defendant by his amended answer denied the allegations of the petition, and further says that a settlement was made between the parties in June, 1905, by which settlement it was agreed that the defendant should pay to the plaintiff, in addition to what he had already paid, the sum of $50 in full settlement of the balance claimed To this the plaintiff replies, denying that the settlement pleaded was ever made. It will be noticed that the defendant does not aver that the $50 was ever paid, so that with the answer not replied to the plaintiff would have been entitled to recover $50. But the evidence upon whether there was a settlement and what the terms of such settlement were, if one was made, is conflicting. It is agreed by both parties that a writing was signed at the time the settlement is claimed to have been made. The defendant says that such writing had a provision in it that released him, after he had paid some $20 or $25 and a further payment of $50 within ninety days and that the same should constitute a complete settlement of the balance claimed. The defendant, however, admits that he never paid the $50, so that even upon his theory it is difficult to understand how the plaintiff can be bound by it, if such agreement was upon a compromise where the parties disagreed about the amount owing by the defendant to the plaintiff. The plaintiff, however, says that the provision of the writing was (which writing is lost) 'that if the defendant would pay in addition to the $20 paid on that date the sum of $150 within ninety days, it should be accepted in full settlement. He agrees with the defendant in saying that nothing has been paid on such settlement, so that whether the statement of the plaintiff or the defendant be the true statement as to this settlement, the plaintiff could not be bound as to settlement by' it since it has never been carried out by the defendant. Upon the trial, however, the defendant testified that though he’ had agreed with the plaintiff to pay him $50 per month, yet that the plaintiff did not faithfully perform on his part, because of the fact that he •was addicted to the use of intoxicating liquors, and by such use unfitted himself for the performance of the work he was to do to such an extent that the defendant was thereby damaged, and to such an extent that it greatly reduced the value of the services of the plaintiff. This testimony is contradicted by the plaintiff and his wife, and the jury were- left to determine-the weight of this evidence, and unfortunately for the defendant the jury came to the conclusion that he was mistaken in his claim and that the plaintiff performed as he claimed to have performed, the work which he contracted to do. The result was that the plaintiff recovered a judgment for the full amount-claimed by him. >

It is said in argument that the jury must have been influenced by prejudice, or it would have made some compromise between the claim of the two parties and brought in a verdict for perhaps the difference between what the defendant admitted that he owed and what the plaintiff claimed that he owed. That juries sometimes do this every lawyer knows, and the practice is severely censured, and the fact that it can only be: brought about by guessing that probably the parties are both; in the wrong is also severely criticised by lawyers. If the jury believed the testimony of the plaintiff and his wife, in this case, their verdict was that it ought to have been and there is nothing before us which would justify us in saying that the jury did not believe the plaintiff and his wife, nor is there anything to justify us in concluding that the jury ought not to* have believed these witnesses. For aught that appears, it was as probable that the defendant was mistaken and that he magnified the shortcomings of the plaintiff, as to believe that the plaintiff was mistaken and that his wife was mistaken in saying that he performed his work as his contract required him to. The result is that the judgment of the court of common, pleas is affirmed.

Henry and Winch, JJ., concur.


text:
    INSANE PERSONS — PARTIES.
    [Cuyahoga (1st) Circuit Court,
    December 28, 1908.]
    Henry, Marvin and Winch, JJ.
    Minnie Stankus v. Thomas Keiper, Guardian.
    Lunatic not Guardian, Suable for'Tort.
    An action for a tort committed by a lunatic must be brought against the lunatic himself; it will not lie against his guardian alone.
    [Syllabus by the court.]
    Error to common pleas court.

      Wm. II. Miller, for plaintiff in error.

      Hitchcock, Morgan & Fackler, for defendant in error.
   MARVIN, J.

The petition in this case alleges that the defendant is the duly qualified and acting guardian of Martin Keiper, who is an insane person, and that as such guardian the defendant was and is “in possession of and chargeable with the person and estate of his ward.” It then proceeds in these words:

“That upon the 27th day of March, A. D. 1905, the said Martin Keiper with force and arms committed an assault upon the plaintiff for the purpose and with the intent to then and there commit a rape upon her; and that by reason of the said assault, she the said plaintiff then and there being in a delicate state of health by reason of pregnancy, she was bodily injured, her nerves shattered, and her health ruined; that as a reason of the said assault she has been permanently injured and damaged in the sum.of ten thousand dollars ($10,000), for which she prays judgment against the defendant as guardian and for her costs.”

The answer admits the guardianship and denies every other allegation of the petition.

Upon motion of the defendant, the court rendered judgment in favor upon the pleadings, and for this the plaintiff prosecutes error here.

The journal entry in the court, below is peculiar and read as follows:

“This cause came on to be heard upon the pleadings and the motion of the defendant for a judgment thereon; and upon due consideration thereof, the court finds that on the pleadings the answer of the defendant is a valid defense to the cause of action set forth in the petition, and said motion is granted. It is therefore considered that said defendant go hence without day and recover of said plaintiff his costs herein. Judgment is rendered against the plaintiff for her costs herein.”

The reason given in this entry is wholly insufficient to justify the judgment; the answer being a general denial required no reply, and left the issue squarely to be tried, if the petition made any allegations which, unanswered, entitled her to relief against the defendant. "We find, however, that it contained no such allegations, the ward no-t being joined as defendant in suit.

If the allegations of the petition are' true the suit should have been against the- ward.

The case of Johnson v. Pomeroy, 31 Ohio St. 247, is cited by plaintiff because of this language in the. opinion, found on page 249:

“The estate of an insane person passes to his guardian by relation, as of the date of the adjudication of insanity, as in the casé of a deceased person, it passes- to the executor or administrator as of the date of the death.”

From this it. is argued here, that since in the case of a claim against the deceased person suit would have to be brought against the administrator or executor, for the same reason a claim against the ward should be sued against the guardian. This reasoning is not sound. In the one case there is but one person who can be sued, to wit, the representative; in the other case there is a person to be sued, the one against whom.; the claim exists. True, his estate is under control of another, and •out of this estate whatever judgment is obtained must be paid, but it must be paid because it is established against the debtor 'himself.

In a suit for damages, either upon a contract or for a tort, -whether it be for a claim against an insane person, is not a •suit against an estate, it is in either ease a suit against a person. And, as already said, since in the one ease there is but one person who can be sued, to wit, the administrator or executor, he is the one necessarily to be sued, while in the other case the very person against whom the claim exists is in esse, he is the “real person in interest,” and is therefore the one and the only one against whom judgment can be obtained.

In Johnson v. Pomeroy, supra, it is said in the opinion on page 248, that:

“An insane person may be sued and jurisdiction over his person acquired by the like process as if he were sane.”

In Este v. Strong, 2 Ohio 405, it is said in the first clause of the syllabus:

“A ward will not be bound by a decree affecting his property where the guardian was a party to the suit but not the ward.”

In the. case last cited the court points out in the opinion the necessity of making the ward a party, that he may have his day in court-, otherwise, as is there said, the ward is deprived of showing that the one claiming to be, or who is sued as guardian, is not in fact such, or whatever fact might be a complete defense which the guardian might fail to make.

In Morgan v. Hoyt, 69 Ill. 489, it is held, that the conservators can be used for a claim- against their wards, but this is put distinctly upon the ground that the statute expressly authorizes such suit to be brought.

In Coombs v. Janvier, 31 N. J. Law 240, 242, it is held that:

“A suit will not lie against the statutory guardian of a common drunkard, on a note made by such drunkard prior to the appointment of such guardian. The suit in such case must be against the drunkard himself.”

And in the opinion, page 242, it is said:

“The statute places the drunkard, with regard to his relation to his guardian, very much on the same footing with the lunatic, and the legal status of the latter is well defined. Lunatics can sue and be sued and the suits must be prosecuted and defended in their own names. ’ ’

In the same opinion, the court, speaking of the claim made for a contrary opinion says:

“It was also suggested that the relationship between these parties, resembled that of administrator and decedent. But there is not a word in the act which would justify the conclusion, that the drunkard was to be regarded as civiliter mortuus.”

And again speaking of the guardianship of a lunatic, the court says:

“It has never been supposed, that such a guardianship-absolutely absorbed the personality of the ward.”

In Rodgers v. Ellison, 19 Tenn. (Meigs.) 88, it is said in the syllabus:

“An action at law can not be sustained against a person in the character of guardian of a lunatic without joining the non compos in the action as a party defendant.”

The opinion of the court in this case covers the present case completely, and in part read's:

“The question raised by the record in this case, and discussed at the bar, is whether the guardian or executor of a lunatic can be sued in an action at law, in that character, without joining in the action, as a party defendant, the lunatic himself? It is.well settled in England, that at law the non compos himself must be a party plaintiff when suing, and a party defendant when sued.
“Upon this question there has never in their courts been any controversy whatever. As to the property of the lunatic, the guardian being but a steward, bailiff, or agent, it does not vest in him, but remains, so far as title is concerned, in the lunatic himself.
“The formal service of process, indeed, upon one deprived of his reason, may appear not without some degree of absurdity. But that he should be a party, so that the judgment may be rendered against him, and the execution issue against his estate, involves not only no absurdity, but is very proper and necessary. To render the judgment against the guardian, and issue the execution against his estate, would involve in it not absurdity only, but injustice.”

We reach the conclusion that the judgment of the court below was right, though not for the' reason given in the journal entry, but because no case was made in the petition against the defendant.

The judgment is therefore affirmed.

Henry, J., concurs.

Winch, J., not sitting.


text:
    MUNICIPAL CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    December 28, 1908.]
    Henry, Marvin and Winch, JJ.
    L. R. & J. Smith Co. v. Cleveland (City).
    Money Voluntarily Paid by a Municipality of Law to Contractor by 1 ¡stake not Recoverable in Absence of Fraud or Mistake of Fact.
    Money voluntarily paid by a municipal corporation to a contractor on a claim for extras allowed under a misconstruction of the terms of the contract between the parties can not be recovered back, in the absence of fraud or mistake of fact.
    [Syllabus by the court.]
    Error to common pleas court.

      Goulder, Holding & Hasten, for plaintiff in error.

      Newton D. Baker, for defendant in error.
   MARVIN, J.

The relation of the parties here is the reverse of the relation in which they stood in the court of common pleas. The terms plaintiff and defendant as used in this opinion will refer to the parties as they stood in the original action.

The plaintiff is .a municipal corporation, and the .defendant is a business corporation.

The plaintiff sued to recover from the defendant the sum of $1,903.44, which was paid by the plaintiff to the defendant on July 16, 1898. The petition alleges that this payment was made in pursuance of a fraudulent conspiracy between the defendant and one Geoi’ge R. Warden, then director of publie works of the city of Cleveland, that a claim was presented by the defendant which was fraudulent and that Warden, as director of public works, fraudulently approved the claim, as a result of which the claim was paid.

This matter grew out of work done by the defendant under a written contract entered into between the plaintiff and the defendant on March 24, 1897. Under this contract the defendant undertook to lay a forty-eight inch riveted steel water main in Spruce street across Sycamore street slip in the city of Cleveland. This was to be done under plans and specifications set out in the contract, from which it appears that the work was to consist of removing a portion of the dock on the north side of Sycamore street slip, excavating a trench and laying a forty-eight inch riveted steel pipe across the slip and then restore the dock on said north side and the piling on the south side to their original condition. Certain excavation was provided for in this contract, and it was provided that the contractor must assume all risk as to the material to be excavated. Another of the provisions of the contract reads:

“A portion of the dock on the north side of the slip will have to be removed to make room for the excavating and laying of the pipe. A few piles on the north side of the slip may also have to be removed.”

A further provision of the contract is: ■

“That portion of the dock and all piles that are removed or that are in any way disturbed, must be rebuilt or redriven after the pipe is laid and trench refilled. Any timber piles, etc., damaged in any way must be replaced with new material. If the old piles that are removed should be found of less length than thirty-four feet below the city base of levels, four new piles will have to be furnished and driven two on each side of the pipe, of the length as shown in plan.”

Another provision was:

“Any work or material incidental to and necessary for completion of the work must be furnished by the contractor without extra charge, although the same be not mentioned in these specifications or shown on the plans.”

A further provision was:

“No claim for extra work shall be made, unless the same be done in pursuance of a written order from the superintendent of the waterworks, and the price to be paid therefor agreed upon beforehand; said order to be given prior to the doing of said extra work.”

The entire amount to be paid for the work thus contracted for was $1,800.

As the work progressed it was found that by reason of quick sand, a great amount of work was necessary to prevent the docks in the immediate vicinity from giving way or being injured, and that a considerable number of piles had to be put in and certain bolts and spikes used, which the defendant claimed was not a part of the work to be done under the contract. The fact that this work must be done was reported to the superintendent of waterworks by the defendant, and the claim is made by the defendant that he directed the work to be done. However, no written order for any of this work, claimed by the defendant to be “extra,” was given, but, on November 30, 1897, the defendant presented a bill to the officers of the plaintiff for “extra” work, amounting to $1,903.44 in the aggregate. After a considerable time and after consultation between the superintendent of waterworks and the director of public works and the law department of the city, this bill was approved by the director of public works and thereafter paid.

The claim on the part of the plaintiff is that all of the items of this bill are for work and material provided for in the original contract, and that there was no authority for its payment, and that the plaintiff is therefore entitled to recover it back. The defendant denied all fraud; averred that the work and material included in this'bill for “extras” was outside of the contract, and that it was ordered by the proper officer of the city, and as a further defense, alleged that the payment was voluntarily made by the city, and that by reason of this voluntary payment the plaintiff was not entitled to recover back the money paid.

The result of the trial in the court of common pleas was a verdict and judgment for the plaintiff for the entire amount.'

A motion for a new trial was made by the defendant, which was overruled, and by proper proceedings the case is here for review.

The court took from the jury the issue of fraud, saying there was no evidence tending to show any fraudulent conspiracy on the part of the defendant and the director of public works, and that the plaintiff, if it recovered at all, must recover without there being any element of fraud in the case.

And then the court said:

“If by reason of the slope at which the trench was dug, or if by reason of quicksand encountered in making the excavation, or if by reason of boats or other craft passing in the slip, before the trench was refurnished with dirt or if by reason of any other cause not attributable to the city, the surrounding soil sank or gave way and thus caused the disturbance of the dock and piles which were restored by the defendant, the defendant in making such restoration would be doing merely that which it was required to do by the contract between the parties, and the work and material furnished by it in so doing would not be extra work and material. ’ ’

We are not prepared to say that this was a misconstruction of the contract, but if the parties, to wit, the defendant and the proper officers of the city, construed it otherwise, their misconstruction was a mistake of law and not a mistake of fact.

The court said also to the jury that the burden of proving that no written order for the “extra” work was given to the defendant was upon the plaintiff. This last instruction is not and could not be complained of by the defendant, because it was admitted by it on the trial, that no written order for this extra work was made, and since the matters specified in that part of the charge, hereinbefore quoted, substantially included all that was claimed by the defendant as extras, there was. practically nothing left for the jury to consider as to whether the defendant was entitled to recover anything on its bill against, the city.

On the matter of the voluntary payment the court said, this to the jury:

“However, there is another principle of law to be considered in this connection, which is that notwithstanding the* claim against the city was illegal and no action could have been maintained thereon against the city, yet if the city, through its. proper disbursing officers, voluntarily paid the same, it can not recover back the money so paid, where the work paid for was. actually done by the claimant for the city, and was not work which the claimant was required to perform for the city. So you will see, gentlemen, that the plaintiff’s right of recovery* here is not determined merely by your finding that -the superintendent of waterworks did not give a written order previous to. the doing of the alleged extra work in question. In order that the city may recover it must be further shown either that the work paid for was not done by the defendant or that the same* was work which the defendant was bound to do by the written contract between it and the city.”

All of this is complained of by the defendant, and it should * have been qualified in such wise as that the jury would have understood that the city could not recover if the payment was. made for work included in the contract upon a true construction thereof, if such payment were made upon an honest belief that a true construction of the contract did not require the furnishing of this labor and material.

The defendant requested the court to charge:

“If you find that defendant did the work and furnished! the material mentioned in the petition, the value of which is. stated therein to be $1,903.44, and that said work and labor* and material was not included in the written contract dated March 24,- 1897, then your verdict will be for the defendant there being no evidence in this case of any fraud or deceit used. by defendant to induce the payment of $1,908.44, and the payment having been made after officers of the city who h.ad supervision and direction of the work or had opportunity to examine and inspect the work which had been done, and ascertain what work had been done and the value of the same.”

This request was refused, and it is claimed that there was error, in such refusal. We think .that the court’s attention having been called by the request just hereinbefore quoted to the matter of the misconstruction of the contract, he should have either given such request or said something more than was said as to the voluntary payment claimed to have been made by the city, and that the charge as given was calculated to mislead the jury on this defense. The evidence strongly tended to show that the officers of the city not only had full opportunity to know what had been done by the defendant but actually knew what it had done, and that if any mistake was made in making this payment which seems from the evidence to be very probable, such mistake was one of law and not of fact, and if such payment were made by mistake of law, this plaintiff was not entitled to recover in the action.

See Mays v. Cincinnati, 1 Ohio St. 268, in the opinion of which ease, at page 275, the court referring with approval to the case of Brisbane v. Dacres, 5 Taunt. 148, say in that case:

“The court refused to allow a recovery, and laid down the principle broadly, that if a person, with knowledge of the facts, but under a mistake as to the law, pay over to another, claiming it as a right, money which he has not been- compelled to pay, he can not, upon discovering what his legal right was, recover it back, there being nothing against conscience in the other' party’s retaining it.”

The same principle is laid down in the case of Marietta v. Slocum, 6 Ohio St. 471.

In the case of Valley Ry. v. Iron Co., 46 Ohio St. 44, the third paragraph of the syllabus reads:

“The rule, that a payment voluntarily made under a mistake of law, but with full knowledge of the facts, can not be recovered back, rests upon general principles of public convenience, and applies to a corporation as well as to a natural person. ”

In the case of Cincinnati v. Gas Light & Coke Co. 53 Ohio St. 278 [41 N. E. Rep. 239], the third paragraph of the syllabus reads:

“A payment made by reason of a wrong construction of the terms of a contract, is not made under a mistake of fact, but under a mistake of law, and if voluntarily cannot be recovered back.”

In the case of Vindicator Printing Co. v. State, 68 Ohio St. 362 [67 N. E. Rep. 733], it is held that this principle applies to counties as well as to corporations and natural persons, and it is there said, that prior to the enactment of the present Sec. 1277 R. S. (Sec. 2921 G. C.) a prosecuting attorney could not recover back money of the county paid upon an illegal claim. That statute, which was passed April 25, 1898, provides in express terms that the prosecuting attorney may maintain such, an action and recover back money voluntarily paid by the county upon an illegal claim. There is no such provision authorizing a municipal corporation or any officer of such municipal corporation to maintain such an action. That being the case, the rule as to voluntary payments applies to a municipality the same as to a natural person, and the court should have charged in such terms that the jury would have understood it, that if when the plaintiff made the payment to the defendant it had knowledge of the facts upon which the defendant’s claim was founded, it was not entitled to recover back, notwithstanding such payment may have been made under a mistake of the law, and for failing so to charge and for the misleading character of the charge on this proposition, as herein pointed out, the judgment of the court below is reversed and the cause remanded.

Henry and Winch, JJ., concur.


text:
    JURY — TRIAL.
    [Cuyahoga (8th) Circuit Court,
    December 28, 1908.]
    Henry, Marvin and Winch, JJ.
    George F. King v. George M. Potter et al.
    Right to Jury Trial Claimed Too Late is Lost.
    In a case at law but assumed by the parties to be in equity, where, on motion of the plaintiff, the case is referred to a special master commissioner to take evidence and submit it with his conclusions on the law and facts involved, which he does, and the plaintiff excepts to his report, whereupon the case is heard by the court upon the report and exceptions thereto and judgment rendered for the defendant, to which the plaintiff excepts, after judgment so entered it is too late for the plaintiff to claim his right to a jury trial.
    [Syllabus by the court.]
    Error to common' pleas court.
    FF. D. Meals, for plaintiff in error.

      E. A. Auer, for defendants in error.
   MARVIN, J.

These two proceedings grew out of a single case in the court of common pleas and the parties stand to each other in the same relation as they stood in the court below.

King sued Potter for commissions which he claimed to be due to him on the sale of certain goods. It is said by plaintiff in error that the case was one at law. Without determining whether or not this is so, we consider it upon the theory that the claim is right and that the parties were entitled to a jury trial; but it seems to have been assumed by both parties that it was a suit in equity, and on motion of the plaintiff the case was referred to a special master commissioner ‘ ‘ to take the testimony in writing and such documentary and other evidence as may be submitted to him, and report the same to the court together with his conclusions on the law and facts involved in the issues; and said master commissioner is hereby authorized to summon and enforce the attendance of witnesses and grant ad-journment; that the testimony may be taken down in shorthand and afterwards reduced to writing and after the same is reduced to writing the witnesses shall severally be required to subscribe their respective testimonies.”

Under this order the case was referred to Hon. H. J. Caldwell, who proceeded to act under it and take the evidence and report the same, together with his conclusions on the law and the facts involved in the issues. This report having been filed, the plaintiff filed exceptions thereto. The case was heard upon the report and the exceptions by the court, and the defendant recovered of the plaintiff a sum of more than $1,800. An exception was taken to the action of the court in confirming the report and entering the judgment.

It is first urged that there was error on the part of the court in referring the case, because it was a case triable to a jury. We think this is sufficiently answered by See. 5204 R. S. (See. 11469 G-. C.), which reads:

“In actions arising on a contract the trial by jury may be waived by the parties, and in other actions, with the assent of the court, in the following manner:
“1. By the consent of the party appearing, when the other party fails to appear at the trial, by himself or attorney.
“2. By written consent, in person, or by attorney, filed with the clerk.
“3. By oral consent in open court, entered on the journal.”

Under this section it has been held that where no objection is made to a trial by the court until after the issues are found it is too late to insist that the case should have been tried to a jury, nor can the party against whom the issues were found object to a judgment in accordance with such finding.

In Bonewitz v. Bonewitz, 50 Ohio St. 373 [34 N. E. Rep. 332; 40 Am. St. Rep. 671], this language is used in the syllabus:

“1. A party may waive his right to a jury trial by acts, as well as by words.
“2. And where, in a ease of which the court of common pleas, having jurisdiction of the parties, may also, by consent, acquire jurisdiction to try the cause without a jury, the record shows that the parties appeared, and neither demanded nor waived a jury, but without objection submitted the cause to the court upon the pleadings, evidence, and argument of counsel, it is not error for the court to proceed to final judgment in the case.
“3. An objection by the defeated party, first made after such submission and judgment, that his cause was not tried to a jury, comes too late. ’ ’

It follows from this that the action of the plaintiff himself moving that the case be referred estops him from now complaining that there was no jury trial.

Under Secs. 5130 and 5131, R. S. (Sec. 11379, 11380, G. C.), cases which may be tried by the court may be referred by the court, so that' the parties so having consented that a jury be waived, thereby consented that the case be tried by the court, it therefore follows that the court was authorized to try this case in any lawful way. It was lawful to refer the matter and have the evidence brought into court by the referee and it was clearly lawful for the court to learn from the referee by report or otherwise, as to what was proved by this evidence and what his judgment was as to the law governing the case.

The court was not bound to accept the judgment of the referee, either as to the facts or as to. the law. The parties had a right to be heard upon it in court. They were heard, the plaintiff having excepted to both the findings of fact and the conclusions of law; and having been so heard the judgment rendered was the judgment of the court, in a case in which the parties had consented that a jury be waived. Upon that hearing the court gave its judgment for the defendant. We think it is now too late for the plaintiff to complain of this judgment or of any action of the court in relation' thereto, and it follows ths,t the judgment of the court of common pleas is affirmed.

Henry and Winch, JJ., concur.