text:
    TERM OF A GAS AND OIL LEASE.
    Circuit Court of Wood County.
    Henry Diehl v. Ohio Oil Co.
    Decided, October 29, 1892.

      Gas and Oil — Lessees Held to an Extension of Time — Where Oil Has been Discovered, but Not in Paying Quantities, and There is No Limitation <as to Time Except that a Well Shall be Completed Within One Tear.

    Where a gas and oil lease provides that one well shall be completed within a year, and the lessees make a cash payment of $1,500 on the date-the contract was executed and expend as much as $2,200 within the year in drilling a well, which yielded oil but not in paying quantities, they are entitled to an extension of time within which to make further search for gas and oil; and upon refusal of the lessees to pay rental demanded on the theory that “no well had been completed” injunction will not lie against them, within five months of the completion of the well that was drilled, to restrain them from entering upon the- premises and operating for gas and oil.

      James & Seney, for plaintiff.

      Cook & Troup, contra.
    Scribner, J.; Bentley, J., and Haynes, J., concur.
    Appeal from Wood Common Pleas Court.
   It appears th-at on July 26, 1890, tbe plaintiff, Deibl, being tbe owner of certain lands situate in Wood county, more particularly described in the petition in this case, executed and delivered to one William Fleming the instrument of which the following is a copy: '

“In consideration of the sum of eleven hundred dollars, the receipt of which is hereby acknowledged, Henry Delhi, of Pemberville, first party, hereby grants unto William Fleming, of Oil City, Pennsylvania, second party, his heirs and assigns, all the oil and gas in and under the following described premises, together with the right to enter thereon at all times for the purpose of drilling and operating for oil, gas or water, and to erect and maintain all buildings and structures, and lay all pipes nece’ssary for the production and transportation of oil, gas or water, taken from said premises. Excepting and reserving to first party the one-sixth part of all oil produced and saved from said premises, to be delivered in the pipe line free of cost with which second party may connect his wells, namely: (Here follows a description of the land.) To have and to hold the above premises on the following conditions:
“If gas only is found, second party agrees to pay $300 each year in advance for the product of each well while the same is being used off the premises and first party to have gas free of cost to heat three stoves in dwelling-house during same time.
“Whenever first party shall request it, second party shall bury all oil and gas lines and pay all damages done to growing crops and tiling by reason of burying and removing said pipe lines or otherwise, said lines to be put below plow depth, the damages to be decided by three disinterested parties.
“No well shall be drilled nearer than three hundred feet to the orchard, house or barn on said premises, and no well shall occupy more than one acre.
" In case no well is completed within one year from this date, then this grant shall become null and void, unless second party shall pay to first party, twelve hundred_ and sixty dollars, in advance, for each year such completion is delayed, the rental to continue until the oil is marketed, if produced in paying quantities.
‘ ‘ The second party shall have the right to use sufficient gas, oil or water, to run all necessary machinery for operating said wells, and also the right to remove its property at any time.
“It is understood and agreed that second party is to keep all gates closed going to and coming from the place of operation. If oil or gas can not be found in paying quantities then this lease shall be returned to first party.”

Then follows some stipulations in the lease as to having the agreement and conditions extend to the heirs, executors and assigns of the respective parties.

The statement in .this lease is that the grant is made by Deihl, the owner of the land, in consideration of $1,100, while the proof shows there was in fact paid to him $1,500.

By its provisions, as will be seen, one well was to be completed within one year; that year would expire on July 26, 1890. One well was completed on June 28, 1890, which was within the time limited. This well was drilled as shown by the testimony at an expense of about $2,200. It produced oil, but not in paying quantities. A tank was built and connected with the well, but not with any pipe line. The oil to the extent of about twenty-six barrels was saved and removed about the month .of October, 1890. The testimony on behalf of the defense tends to show that a cheek for the portion due this plaintiff for oil was tendered to him. The plaintiff denies, however, that any such tender was made. Nothing further was ever done with this oil.

On August 12, 1890, which was less than a month after the expiration of the year, and again on the twenty-fifth of the same month, and on the first of October, 1890, according to the-testimony of the plaintiff, he demanded that either the rental of $1,260, which he claimed was due him, should be paid, or his lease should be surrendered. The lease, I should say, by assignment became the property of the defendant, the Ohio Oil Company, and all that was done under the lease was done -by that company. .

The latter company refused to pay the rental claimed, arid also refused to return the lease, and the plaintiff on November 27, 1890, brought this suit. This was about four months after the expiration of the first year mentioned in the lease within which the first well was-to be sunk.

The plaintiff in his petition in this case sets out, in substance, as I have stated, the lease, the demand that was made, the refusal to pay the $1,260 or return the lease, and avers in conclusion that the defendants still claim to have some beneficial right or interest in said lands under said lease, and by asserting and threatening the same, cast a cloud upon the title of plaintiff in the peaceable use and occupation of said lands thereby greatly diminishing the value thereof and causing great and irreparable damage, loss and injury to the plaintiff. That the defendant still claims the right under said contract to enter upon said lands, to erect derricks, drill wells, lay pipes and remove oil or gas therefrom, .and will, unless restrained by this Court, enter thereon for such purposes and carry the same into execution, thereby causing plaintiff great and irreparable damage, injury and annoyance.

Wherefore, plaintiff prays for an injunction restraining the said defendant from asserting any further right, title or interest in said lands under said contract, or otherwise from entering upon said lands, and from proceeding further to erect derricks, drill wells, lay pipes, or in any way molest or disturb plaintiff in the peaceable possession and enjoyment of said lands; that the lease may be declared null, void and forfeited, that the same may be surrendered to plaintiff and the order of this court may cancel the same of record; and that the plaintiff may have all other and further relief in the premises.

It will be noticed that there is no limitation contained in this lease as to time. That is, so far as these provisions are concerned, the lessee may operate upon the lands under its terms except when oil or gas can not be found in paying quantities, then this lease shall be returned to the first party. The only other stipulation relating to the termination of the lease, is found in this clause:

“In case no well is completed within one year from this date," then this grant shall become null and void, unless second party . shall pay to said first party $1,260, in advance, for each year such completion is delayed, the rental to continue until the oil is marketed, if produced in paying quantities.”

The consideration to the lessor, the plaintiff, is first, the sum of $1,500. An absolute payment of $1,500 .in cash on the day the contract was entered into. Further down there is reserved to the plaintiff, .the lessor, the one-sixth part of all the oil produced and saved from said premises to be delivered in the pipe line free of cost, to which second party may connect its wells.

These are the two items of compensation for the privileges granted, provided for in the lease. First, $1,500 cash; and second, the reservation of one-sixth of the oil to be delivered into tanks or pipe lines,. and third, if gas only is found, the second party is to pay $300 for the product of each well and first party to have gas free of cost.

These are the considerations moving to the plaintiff, the lessor, provided in the lease: First. The consideration of $1,500 paid for the grant. The reservation to the plaintiff of one-sixth part of the oil to be delivered in tanks. Then it is further provided, and this is the only other provision relating to compensation:

“In case no well is completed within one year from this date, then this grant shall become null and void, unless second party shall pay to said first party twelve hundred and sixty dollars, in advance, for each year such completion is delayed, the rental to continue until the oil is marketed, if produced in paying quantities.”

Now there was a well completed within one year. The lessees strictly in compliance with the terms of their contract, and at an expense of about $2,200, went forward and drilled, and completed a well within the time stipulated in the contract. It follows in our judgment that this rental of $1,260 is not due under this stipulation in the contract.

It was to be paid on condition; or in ease no well is completed within one year; but a well was completed within one year. In ease it was not completed within a year then this rental was to be paid each year such completion was delayed. ’That rental was the condition in the lease, one condition for the payment of this rental was riot only that the well should not be completed, but that oil should not be produced, or at least the continuance of the payment of this rental was to depend upon the production of oil in paying quantities; then in case oil and gas can not be found in paying quantities, then this lease is to terminate.

Now we are clear that this plaintiff, this lessor, has a right within a reasonable time to make his election, but it would depend very much upon the circumstances to put an end to this lease providing the lessee does not proceed to perform the stipulations of the contract relating to him; but now the year within which this well was to be completed extended until July 26, 1890, and June 27,1890, a well had been.completed at a large expense; and on the twelfth of August, on the twenty-fifth of August and in the month of October of the same year, all within four or five months from the sinking of the first well, this plaintiff is demanding that he shall be paid the sum of $1,260 or the lease should be surrendered to him.

Now upon careful consideration of the terms and conditions of this lease, we are of the opinion that he was not entitled to compliance with either of these demands. lie was not entitled to the payment of the $1,260, because the completion of the well had not been delayed; and he was not entitled .to the return of the lease because the lessee had a reasonable time to make a further effort to find oil or gas; and we think to require the lessee to proceed within four or five months from the time of sinking of the first well and deprive him of further right to search for oil or gas, would be an unreasonable application of the right claimed by the plaintiff in the contract to terminate the lease.

The defendant’s witnesses testify that shortly before the bringing of this suit they were about- to proceed, and plaintiff in fact alleges that they are about to proceed to make a further search for oil or gas, and alleges that unless prevented by the injunction of the court, they will enter upon this land and make further search for oil or gas.

Now in view of all the circumstances, we are of the opinion that the eomapny has a right to reasonable further time to enter upon the land and prosecute this work. That having expended $3,500 first, and then expending $2,200 on this lease, that they ought not be shut off from proceeding with their work, and certainly not on the ground that the defendant has not paid $1,260, which we do not think it should pay, and our conclusion is, that the equity of the case is with the defendant, and the petition must be dismissed with the plaintiff’s costs.


source: Caselaw Access Project

license: Public Domain

text:
    PAYMENTS ON MORTGAGE FOR. THE PURPOSE OF PRESERVING THE LIEN.
    Circuit Court of Lucas County.
    Ella Felt Lowe, Executrix, v. Sumner D. Felt et al.
    Decided, February 27, 1909.

      Limitation of Actions — Methods by Which the Running of the Statute is Barred — Payments to Prevent Operation of the Bar — Lien of Mortgage Preserved by Acknowledgment, Though Debt is Barred.

    1. Either one of the three methods, prescribed by Section 4992, Revised Statutes, for keeping claims alive — payment, promise of payment or acknowledgment thereof — complies with the saving clause of the. .statute and is adequate to prevent its running. Hence, payment of a sum of money within fifteen years after the maturing of a note secured by mortgage, is sufficient to constitute an acknowledgment of an existing liability.
    2. A nephew having an interest in a mortgage upon his uncle’s lands, transferring his interest therein to his brother by written assignment, recognizes the existence and validity of the mortgage and note secured thereby; and having obtained within a month thereafter a warranty deed of the-mortgaged premises, in which he subsequently granted back a life estate to the uncle in pursuance of a family arrangement to leave him in possession undisturbed during his life, he can not assert that payments made by him and endorsed upon the note did not operate to keep the mortgage alive after the uncle’s death.
    3. Payments on or acknowledgments of a debt secured by mortgage, by the owner of an equity of redemption, may operate to keep the mortgage lien alive as against the statute of limitations, although a right of action on the debt against the original debtor may be barred.

      Failing & Eppstein, for plaintiff.

      Sumner Felt and A. P. McKee, contra.
    Wildman, J.; Parker, J., and Kinkade, J., concur.
    Appeal from Common Pleas Court of Lucas County.
   In tbe case of Ella Felt Lowe, as executrix of the estate of Clinton H. Felt, deceased, against Sumner D. Felt -and others, the transactions with reference to certain real estate have had such a history as might justify the court in spending some time in reviewing the facts presented, not only by the pleadings but by the evidence which has been submitted to us, the case being one appealed to this court from the court of common pleas.

Mrs. Lowe, as executrix of the estate of Clinton Pelt, her deceased husband, brings suit to foreclose .a mortgage upon certain real estate, the title to which is in Sumner D. Felt, one of the defendants.

In the year 1870, one Milo Felt, an uncle of the present parties, Mrs. Lowe and Sumner Felt, and Alice M., his wife, executed a note and mortgage to one Dorman Felt, who was the father of Clinton and .Sumner and a Mrs. Bostwiek. At his 'death the note and mortgage passed to the sons and the daughter, Mrs. Bostwiek, and by subsequent release became the property of Clinton; and upon Clinton’s death, by his will, it becomes the property of Ella Lowe, as executrix. The question upon ‘foreclosure, and the sole question, is whether the right to proceed upon the mortgage against the land has been barred by lapse of time under our statute of limitations.

The mortgage and note were due November 1, 1871, at which time a right of action accrued- and the statute began to run. The note was made payable to Dorman Felt or bearer, and to secure its payment the mortgage was given upon the land which is now sought to be subjected, a farm of some 160 acres situated near Monclova, in this- county. At the time of the giving of the mortgage the title in fee was in the wife of Milo,- Alice M. Felt. Upon her death in 1883 the equity of redemption passed to Milo S. Felt, her husband.

Two transactions occurred in the year 1885 which may or may not have had any special-reference to'each other. After the death of Dorman Felt, the father of Clinton and Sumner, by written assignment on August IQ, 1885, Sumner transferred his interest in the mortgage and note to his brother, Clinton. There can be no question that at that time, and by -that transaction he recognized the existence and validity of the note and mortgage. A little more than a month later and in the same year he obtained, by warranty deed, the title to the real estate from his uncle, Milo, who, as I have stated, had succeeded to the interest of Alice Felt, his wife. There, is no claim that Sumner was a purchaser without knowledge of the existence of the lien upon the land, or the existence of the debt, and manifestly a claim of that kind would be idle in view of the fact that he had by writing expressly assigned an interest in the note and mortgage, only a little more than- a month prior to his obtaining the conveyance from his uncle, Milo, of the real estate.

But a period of more than fifteen years elapsed from the time of the maturity of the note, and indeed from the time of the acknowledgment of the note by the assignment to Clinton, before the beginning of the present suit, and the question arises whether certain subsequent transactions between the parties interested have operated to keep the mortgage alive.

A conveyance was made back from Sumner to his uncle, Milo, by which the possession of the property was to remain with Milo during his lifetime, and it' did so remain. His possession of the property was not disturbed, and without any consideration of oral' evidence it might be assumed that the family relation had operated upon the minds of all parties to induce them to leave Milo in the undisturbed possession of the property as a home during his life. Both Sumner and Clinton may be assumed to have had the natural affection which nephews would have for their uncle, and their disposition to leave him in the control of the property seems to have been shared and the plan or purpose to have been carried out in like spirit by the widow of Clinton, after his death.

There appears upon the mortgage under date of August 31, 1886, a credit of $20, and another of like amount on October 1, 1895. A claim is urged upon us in behalf .of Sumner that these credits, while made by his consent, were not evidence of real payments made — that they were mere forms designed to protect the possession of their uncle, Milo, in view of the possibility of some other outstanding claim wresting the property from him. This mortgage was a first mortgage, and by keeping it alive he would be protected in the possession of the property when otherwise he might be dispossessed. That is the contention of Sumner Felt, the principal defendant here, as we xinderstand it. He says that these endorsements made upon the paper were merely formal as between him and the holder of the mortgage, and were not to operate to keep the mortgage alive after the death of Milo. We can not, however, so look at those transactions. We do not think that the competent evidence taken as a whole indicates this. There is nothing in any of the written evidence to indicate that there was any intention that the mortgage should remain alive merely until the death of Milo, and that then it should become eo instanti barred by lapse of time. The written assignment of his interest in the mortgage made in 1885 to his brother, Sumner, recognized its validity as a security for the existing debt. The correspondence between the -parties, the letters, all indicate the same thing.

The deposition of Sumner has been taken to disprove the inference which might be drawn from these writings, and his evidence so far as it relates to transactions after the death of his brother, Clinton, is competent. We do not deem it competent as to the transactions occurring before that death, except in so far as it may be made so in rebuttal of evidence as to particular transactions with regard to which evidence was offered on the other side. I do not care to go over these letters in detail. I might, however, in passing, refer to one written after the death of his uncle, Milo, in which he substantially recognized the mortgage. Perhaps standing alone this letter would not be such a written acknowledgment as is essential under the statute to take the case out of the statute of limitations. Nor is it an express promise to pay, but we think that it is very persuasive evidence to show that he did not understand that the mortgage was to expire with the death of Milo. He substantially says in the letter — I will not attempt to repeat its precise phraseology, and will not now look for it in this voluminous bundle of papers before me — that by reason of his business matters he is unable at present to take care of the mortgage, but that he will see her, Mrs. Lowe, or Mrs. Felt perhaps, at a time later with regard to it. It would seem that, if he were right in his contention that those endorsements on the paper were signed only to protect the interests of Milo, now after the death of Milo, when called upon to pay the indebtedness which was a lien upon his land, he would at once have asserted this claim which he now urges before this court. The letter, together with his other correspondence in which he consents to the endorsements upon the paper, are sufficient, we think, under the statute to keep the mortgage alive.

The claim for a personal judgment against the estate of Alice Pelt is probably barred by lapse of time, and the same would be true as against Milo Felt, who joined with her in the making of the evidences of the original indebtedness. It may be altogether true that the time has expired within which any suit could be brought by the executrix of Clinton Felt to recover a personal judgment against any representative of the estate of Alice or Milo. But it does not follow that the failing of the right to sue upon the original personal claim drags down with it the right to foreclose a lien upon the real estate. '

In reference to adjudications bearing upon the question of a written acknowledgment as affecting the right to sue after a lapse of the time fixed by the statute of limitations to bar a claim, Judge Kinkade has opened before me Coffin v. Secor, 40 Ohio St., 637, which reports very briefly a case which went to the Supreme Court from this county, and in which a somewhat similar acknowledgment to that embodied in the letter written by Sumner Felt after the death of Milo was held by the Supreme Court to be sufficient to keep the claim alive. We have found other cases in which a mere reference to the mortgage, reciting its existence .as a lien upon the property, was held a sufficient acknowledgment, and some other cases where the party had indicated by his written acknowledgment his knowledge of the existence of the mortgage and his view that it was still in effect. There is no magic in the words. We can not tie parties to precise words, and say that a certain form of acknowledgment must be adopted, for the statute has not prescribed any form. Any written acknowledgment of an existing liability or any promise to pay signed by the party who is sought to be held is sufficient under the statute, and we do not see how a party could in any way have more clearly indicated his belief that this was a valid claim against the land which he owned than has been evinced by Sumner Felt in this case in the whole course of the transactions.

As to the endorsement of August 31, 1886, even if it does not evidence an actual payment, the writing signed by Sumner Felt at that time in the way amounted to an acknowledgment of the existing debt. The statute (Section 4992, Revised Statutes) provides three methods by which the claim may be kept alive— one jis payment, another a promise of payment, and the third, an acknowledgment. Either one of these three, standing alone and without the others, if it fully complies with this saving section in the statute of limitations, is adequate to keep the claim alive. Now as to this one of August 31, 1886, which was less than fifteen years after the maturing of the note in November, 1871, we think that it was a sufficient acknowledgment of an existing liability.

On October 1, 1895, and after the death of Clinton Felt, there was a' transaction between Sumner and his sister-in-law, the present plaintiff or widow of Clinton, which resulted in another endorsement of $20 upon- the paper, and this endorsement was within the statutory period of limitations prior to the beginning of the suit. Our Supreme Court in one ease has used certain language which might upon a hasty examination eonvéy the impression that if a note is barred by lapse of time, the mortgage must necessarily be also barred by lapse of the same time; but while this is true in a general way, it is- only because the statute of limitations applicable to mortgages happens to be the same statute of limitations as to notes. The Supreme Court has expressly held that where a mortgage is given to secure an account, which is barred in six years, the statute of limitations applicable to the mortgage is still -the fifteen-year one. In other words, if a mortgage is given to secure an amount, the right to sue upon the account terminates at the end of six years, but the mortgage continues to run for the residue of the entire period of fifteen years, which is the statutory limitation upon a contract under seal or a specialty such as a mortgage.

Referring again to this endorsement of October 1,1895,’ and the testimony of the parties, and in this matter that of Sumner is competent as well as that of the others, we have sufficient to indicate to our minds that Sumner Felt did perform some services either to the widow, his sister-in-law, or to her- son. Really, it was perhaps at the request of the sou or upon conversation with the son, but she accepted the benefit of it, and upon arrangement between them, compensation to the amount of $20 was agreed to, and it was expressly arranged that it should be endorsed upon this paper. His claim is that it was only for the purpose of keeping the mortgage alive during the lifetime of Milo, but we think that the evidence does not indicate that she had such an understanding of the matter. On the contrary, we think it is clearly indicated in her letters to him, that she was insisting that he make some endorsement in writing, and when they turned the charge for services upon the note, that she was all the time insisting upon his consent to make that endorsement for the very purpose of keeping it alive. She was relying upon this claim.

It is our judgment that the lien of the mortgages has not been lost by lapse of time. Decree will be entered for its foreclosure.


text:
    EXCESSIVE DAMAGES FOR. INJURIES TO A DRIVER..
    Circuit Court of Hamilton County.
    The Interurban Railway & Terminal Company v. John Bierman.
    Decided, February 5, 1910.

      Damages for Personal Injuries — Judgment for $8,500 Excessive, When ■ —Presumption as to Effect of Improper Remarks hy Counsel_ Verdicts Must he Clearly Based on the Evidence and the Law.

    Damages in the sum of $3,500 for injuries to a driver are excessive, where it appears that he returned to work at the end of six weeks and was steadily employed thereafter; and the fact that in such a case counsel for the plaintiff during the argument to the jury indulged in improper remarks will be accepted as explaining the excessive verdict returned, notwithstanding the caution which was uttered by the trial judge with the direction to the jury not to be influenced by such remarks but to decide the case from the law and the evidence.

      Frank F. Dinsmore, for plaintiff in error.

      Theodore Horstman, contra.

      The plaintiff was thrown from his seat .on a wagon to the street in a collision with an interurban car. He complained of severe injury to his spine and nervous shock. The jury gave his $4,-500, but the trial judge reduced the verdict to $3,500.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   The court has carefully read the record in the above case and has had it under consideration for some time. While we think a verdict if properly rendered for defendant in error might not be against the weight of the evidence, yet we are of the opinion that the amount of the judgment to which the trial court reduced the -original verdict is far in excess of what the defendant in error was entitled.

The evidence discloses that the defendant in error after being thrown out of employment for about six weeks on account of his injuries, returned to work, and practically had steady employment thereafter, earning as high as $1.75 a day.

It is hard to understand how a jury could return the verdict it did, unless it was influenced by something extrinsic of the evidence.

In this regard the record discloses what took place before the jury in argument, and sets forth certain statements made therein by counsel for defendant in error. While the trial court cautioned counsel, and told the jury to be influenced only by the evidence and not by any personal reference to counsel for the plaintiff in error, yet the statements had been heard by the jury, and we do not think their effect was removed. In such cases the jury is apt to try and determine the ease as made by statements of attorneys rather than -to determine it upon the evidence and the law. If justice is to be done in the trial of any case it should be upon the latter two elements; all other things should be eliminated, otherwise a fair conclusion can not be reached.

It seems unnecessary to say anything further upon this matter, as, taken in connection with the amount of the judgment, we think its effect was harmful.

We find no error in the charge of the court, and would not attempt to say under the evidence in this case what the amount of the verdict should be, except that the present judgment is excessive. We believe that the case for the above reasons should be reversed and again submitted to a jury.

Judgment reversed.


author: Per Curiam.

text:
    GAS AND OIL.
    Circuit Court of Wood County.
    Aerie E. Stahl v. George H. Van Vleck.
    Decided, October 29, 1892.

      Designation of Premises to be Operated for Oil — Lease not Invalidated by the Plugging TJp of the Test Well — Where the Existence of Oil had been Ascertained within the Period Prescribed by the Lease.

    1. Where the ownér of three adjoining forty acre tracts of land leases one acre thereof — to be designated by himself — and agrees that, if oil or gas be found under the lease or on lands adjoining the same premises of which the designated acre is a part, the lessee shall have the right to operate forty acres of the balance of such premises for oil or gas on the terms before stated, the forty acre tract out of which the first acre was designated constitutes the forty acres to be drilled under the contract.
    2. The provision of a gas and oil lease requiring the lessees “to commence a test oil or gas well” within ninety days, is sufficiently complied with where a test well was begun and completed at the designated place within ninety days and the existence of oil ascertained, notwithstanding the well was immediately plugged and the casing withdrawn and there were no further operations on the lease for several months.

      C. A. Houston and Dodge & Canary, for plaintiff.

      Cook & Troup, contra.
   Per Curiam.

Scribner, Bentley and ITaynes, JJ:

In this ease the plaintiff seeks relief in the alternative. He claims that a certain gas and oil lease which he executed on December 15, 1886, to Manahan & Detwiler has by its own terms ceased and determined, the assignee, Van Vleck, as it is claimed not having performed the terms and stipulations to be performed on the part of the grantee in this lease, and he also claims that in the drafting of the lease an error occurred which should be corrected.

Mr. Stahl was the owner of the land upon which this lease was given, situate in Wood county, and entered into the contract with Manahan & Detwiler on the date named, viz., December 15, 1886. By the terms of the lease it was stipulated and agreed that the lessees or their assigns should commence a test well within ninety-days at Rising Sun or near thereto, and in the event of failure to commence a test well within the period stipulated, the lease should be null and void. This instrument is nearly, if not precisely, identical with leases that we have heretofore passed upon in this court. The lessee, however, as the testimony shows, did commence and sink a well at Rising Sun. The testimony introduced in his behalf shows that about the 17th of February they commenced the work of procuring timber and erecting a derrick at the place named — Rising Sun. It is not disputed by the plaintiff that so much of the work was done. It is shown, also on the part of the defendant, that the lessees did commence the operation of drilling a well upon the lands which they had leased near Rising Sun. The testimony of the defendants tends to show that that work was commenced within the three months limited.

The testimony on the part of the plaintiff tends to show that the drilling did not actually commence until about March 17, 1887, which would be a day or two subsequent to the expiration of the ninety days provided for in the lease for the sinking of the test well. We are led to the conclusion, however, upon a careful review of all the testimony, that the lessees did in fact enter upon the performance of drilling a well at Rising Sun within the period provided for in the lease, and we think procured the timber necessary for the work of drilling, and erected the derrick within ninety days within a fair meaning of this contract as to the commencement of the drilling within that period of time; and really, we are of the opinion that upon the testimony the work of actually drilling had commenced before the expiration, but upon that there is some conflict of testimony; but however that may be, in our view of the construction to be given the terms of the contract, we do find that the work of drilling a well at Rising Sun was' commenced by the lessees within the period of ninety days after the execution of this lease. We also think that, while there was no obligatory. undertaking on the part of the lessees to do anything, yet inasmuch as they did voluntarily proceed to perform stipulation under that contract,expended their money and performed labor, that the defense that there was a nudum-pactum, can not well apply.

Now the well that was sunk did disclose the existence of oil in that territory — not to any great extent — and the well was closed and remained closed for a considerable period of time; but .nothing was done on the part of the lessor, the plaintiff, to terminate this contract. Conditions- run .on about as they were after the sinking of the well until about the month of August, 1891, this suit having been commenced on November 28, 1891, at which time, the defendant, Van Vleck, having become the owner of the lease, took steps looking to the drilling of a well upon these lands, and an interview was had by Van Vleck, or his employes, with the plaintiff in regard to that, and as to the place where the well should be sunk, and thereupon a difference arose between them; the defendant claiming that he had a right to drill anywhere on the property described in the lease, and the plaintiff claiming that he had only the right to drill on forty acres to be named by him — part of the 120 acres described in the lease. The plaintiff himself testifies and witnesses on his behalf testified that he expressed to the defendants that they should drill, provided they should'limit their operations- to a certain forty acres which he designated, a certain forty in the northwest corner of the tract, on which they should operate. The defendants understanding that they had a right to drill anywhere on the tract, nevertheless proceeded to haul their material .and tools to the northwest corner, being the corner designated by Mr. Stahl for the drilling of the first well ;• but the result of the controversy between them was that the plaintiff insisted that they should relinquish their right to drill on the entire 120 acres, and they insisted that the lease embraced the entire 120 acres, and they being about to proceed to drill on the northwest corner, the plaintiff commenced this action to prevent them from proceeding, and to have a reformation of this contract.

Pending this suit there was an amicable talk between the parties, and in a conversation had after the suit was commenced, Mr. Stahl indicated to them that he preferred that they should drill on the southwest rather than the northwest corner as indicated by him. The contract reads:

“That the said first party for the consideration hereinafter named and agreed upon does hereby grant to said second parties or their successors and assigns the right to enter upon the following lands and premises now owned by said first party, and situate in Perry township, Wood county, Ohio, to-wit: A tract to be designated by first party of one acre on the following described premises: the south half of the northwest quarter of section two, in town three, north of range twelve, east, also the northeast quarter of the southwest quarter of said section, township, and range aforesaid,- containing forty acres- of the within described premises; for the purpose and with the exclusive right in and upon said premises to drill and develop oil, gas and other valuable substances, and the exclusive right-of-way to said second parties or their successors and assigns to convey over, upon and through said premises, any and all oil, gas and other valuable substances. ’ ’

Then come' written stipulations as to the compensation, etc., and further on down is this:

“It is further agreed on the part of the party of the first part that if oil or gas be obtained by the second party or assigns in and under the provision of this contract upon said tract or on the lands adjoining the same premises of which the foregoing one acre described embraces a part, said second party shall have the right to operate the balance of said premises on the same terms as above.”

It is contended on the part of the plaintiff that when this contract was entered into it was agreed that it should be limited to forty acres of these premises; this was denied on the part of the defendant company, or the defendants, and one of the principal matters of contention relates to this controversy as to what the terms of the grant were originally. The plaintiff, it seems, was furnished with a copy of the contract when it was entered into; he can not produce that copy and we do not know what its terms are; but the original, as produced on the trial by the defendant under the compulsory process of this court, shows that there was originally written in this agreement in another line the words "forty acres” and the word "balance” is stricken out so that it will read ‘ ‘ of which the foregoing one acre described embraces a part; said second party shall have the right to operate forty acres of said premises on the same terms as above.”

The testimony of the plaintiff is clear and to the point that the agreement was made as this agreement shows it to have been reduced to writing, and also that it was agreed that he should designate the forty acres, and the one acre of that forty acres on which the first well was to be sunk, and the then agent of the lessee testified that that was the agreement between them and he states that this interlineation is his handwriting and was so written at the time the lease was entered into.

Now without consuming further time, I will say that our conclusion is this, that the lease was made as claimed by the plaintiff. One acre was to be designated by him in the forty to be designated, on which the first well should be sunk; he, it was, who by the agreement should point out where the well should be sunk. Then upon the condition provided for in the lease, the lessee was to have the right to operate upon the forty acres so designated by the plaintiff. Shortly before the commencement of this suit, he had designated to the lessee the forty acres upon which he wished him to operate. He was at that time willing, entirely willing they should go on, provided .they consented to the reformation of the lease. The lease, as it was recorded, fails to show this correction as made by pencil interlineation on the lease.

. The defendant, the lessee, while insisting that the right to operate upon the whole 120 acres immediately, in case oil or gas should be found, was conferred by the lease, nevertheless was taking steps to drill upon the forty in the northwest corner designated by the plaintiff, and hauled material in good faith and was about to proceed with the work. Plaintiff then brought this suit and afterwards told the defendants he preferred they should work in the southeast rather than the northwest corner of the tract. This indicated his willingness that they should operate upon the lease, but he insisted that they were not upon the correct quarter which I have referred to. The defendant still claimed the right to- operate upon the whole tract, .and was enjoined by thig action from proceeding.

We think the plaintiff should have a decree so as to limit the right of the defendant to operate as claimed by this paper here as written in pencil, yet inasmuch as money has been expended in that work, and inasmuch as plaintiff has signified that he was willing to have them go on and operate according to the terms of the lease as it was actually entered into, and inasmuch as they have gone on and taken .additional steps towards prosecuting the work, they are entitled to that forty acres, and the decree should be so shaped that their right is limited to the forty acres contained in the northwest corner of the tract pointed out by the plaintiff; and in view of the fact that the defendants, although understanding that the lease, by its terms, covered'the whole tract, nevertheless were proceeding upon the forty acres, we are of the opinion that the costs of this suit should be divided between the parties.

       Affirmed by the Supreme Court, Stahl v. Van Vleck, 53 Ohio St., 136.


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    LOSS OF FINGERS IN EXPOSED COG-WHEELS.
    Circuit Court of Hamilton County.
    Daniel Ziegler v. Wuerdeman Company.
    Decided, February 26, 1910.

      Negligence — Operator of a Machine Injured While Attempting to Clean It — Cog-Wheels Exposed — But Unguarded Wheels Not Proximate Cause of the Injury — Section J/S6J/-S9C.

    1. Where the operator of a machine who is familiar with its mechanism is told by the foreman to let work go and clean Ms machine, and without waiting for the machine to become empty, which would have required five to eight minutes, he attempts to clean it while in motion and is injured thereby, and it is shown by the testimony that it was the uniform custom to wait until the machine was empty and had been stopped before, cleaning it, the injury must be held to have resulted from the operator’s own negligence.

      2. Exposed cog-wheels are not the proximate cause of such an accident, where it appears that had a guard been-placed over the wheels it would have been necessary to have removed it before cleaning the machine.

      Charles Phares and Carl Phares, for plaintiff in error.

      Robertson & Buchwalter, contra.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   It was not error for the trial court to instruct the jury to return a verdict for the defendant in error at the time it did in the proceedings, if when the plaintiff in error rested his ease said motion should have been granted.

The plaintiff in error after stating in his petition that he was employed by the defendant in error to operate a dough mixer, alleges that it was his duty also to clean and operate this mixer; that while so employed he was peremptorily ordered by the foreman of the defendant company to clean the machine while the same was in motion and while the cog-wheels of said mixer were revolving rapidly, although as set up it was the custom to clean this machine while it was at rest. He further alleges that without time or opportunity to reflect or realize the danger of obeying the order of the foreman by reason of the machine being in motion, he commenced the work of cleaning it; that in so doing his fingers were caught and crushed between the cog-wheels;, that said cog-wheels had no guard upon them, and that in not providing such guard the defendant in error was negligent.

The evidence of the plaintiff in error discloses that he worked for the defendant, in error from December 3, 1903, to June 15, 1904, upon a certain dough mixer, a period of six and one-half months, when he was hurt. His age was about twenty-seven years. At the time he was employed the machine was explained to him. He had charge of it to run it, and knew how to. stop it, and cleaned it when through with the day’s work. He testified that the foreman said to him on the day when he was injured “let that work go and dust your mixer and leave those bins; go and clean your machine. ’ ’ It was his custom after the machine was cleaned on the inside, to stand it up, tilt it and dust the outside, when it was not in motion. He says that prior to the accident he always had the machine stopped, whenever he dusted or cleaned the outside. It took from eight to fifteen minutes for the mix of dough to run through the machine, and at the time he was hurt the mix in the machine' had been running about five or eight minutes. He further testifies that he had full charge of the machine after he had been in the employ of the defendant company a week, and that when he was hurt he did not stop to think that the machine should be stopped to dust it, and a witness (called in his behalf) also testified that the machine was never to be cleaned and oiled while in motion.

Under the allegations of the petition, we think the evidence offered in behalf of the plaintiff, the answer setting up the fact that the plaintiff in error was injured by reason of his own negligence, clearly shows that the motion to direct a verdict for defendant in error was well taken. He was not told by the foreman, as alleged in his petition, to dust the mixer while it was in motion, and as he had never done this before and knew that no person else had ever undertaken to clean or dust the mixer while in motion, and that by waiting five or eight minutes longer for the mix to pass through the machine, he could then take the dough out, clean and dust the machine, it would seem that.by his own statement he was clearly guilty of negligence on his part.

We do not think the section of the statute relating to the guarding of the cog-wheels is applicable in this case, for while there was no guard upon the cog-wheels, yet to have dusted them it would have been necessary to remove such-guard had there been one. The proximate cause of the accident was the failure of plaintiff in error to stop the machine or allow it to come to rest before undertaking to clean or dust it.

It is apparent, therefore, that the evidence produced by the plaintiff in error upon the trial, shows that it was his own negligence that caused his injury, and therefore the court was justified in instructing a verdict for defendant in error.

The judgment will therefore be affirmed.


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    DISCRIMINATION IN THE MATTER OF UFE INSURANCE PREMIUMS.
    Circuit Court of Lucas County.
    James A. Dailey v. John H. Chappell.
    Decided, June 12, 1909.

      Life Insurance — Notes Executed for Premiums — Action Brought Thereon — Averments as to Illegal Rebates on Insurance Premiums Insufficient, When — Section 3881-J/.

    1. An answer in an action on notes given for life insurance, which alleges that (1) the notes were executed on an express agreement that they should be discounted with a certain brokerage firm of which the insured was a member and brokerage allowed such firm, otherwise the insurance should be void and the policy canceled; (2) that upon notice of failure to carry out said brokerage agreement, the policy was returned to the agent, cancellation demanded and return of the notes requested; and (3) that the insured became the beneficiary of a rebate, which was illegal and contrary to Section 3631-4, is defective in that it fails to bring the insured within the terms of the statute so as to invalidate the notes or- make them fail for want of consideration.
    2. Judgment on the pleadings without testing the sufficiency of the answer by demurrer is not prejudicial error, where no motion was made by the defendant for leave to amend his answer or file some other pleading.
    J. J. Keenan, for plaintiff in error.

      Lloyd & Bettig, contra.
    Wildman, J.; Parker, J., and Kinkade, J., concur.
    Error to Lucas Common Pleas Court.
   This is a proceeding in error to reverse a judgment rendered in the court below in a suit in which the present defendant in error, Chappell, was plaintiff, and Dailey was defendant. Chappell brought suit upon promissory notes given in payment of a premium for a life insurance policy. Judgment was first obtained before a justice of the peace, and appeal .taken to the court of common pleas. A petition, answer and reply were filed in the court of common pleas, but shortly before the filing of the reply by the plaintiff, Chappell, a motion was made for judgment on the pleadings, and the court sustained the motion, rendering judgment in favor of Chappell.

Chappell’s answer is somewhat peculiar. It seeks to assert rights arising under Section 1 of act 90 O. L., 345, Section 3631-4, Revised Statutes, the section being applicable to life insurance. It contains three prohibitions, as we analyze the section, against attempted favoritism practiced sometimes by life insurance companies in favor of particular policy holders. The statute is intended in the interest of the people, to require life insurance companies to treat alike all persons seeking the benefits of insurance. The section reads:

“No life insurance company doing business in Ohio, shall make or permit any distinction or discrmination in favor of individuals between insurants of the same class and equal expectation of life in the amount or payment of premiums, or rates charged Eor policies of life or endowment insurance, or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of the contract it makes. ’ ’

That is one of the prohibitions.

“Nor shall any such company, or agent thereof, make any contract of insurance or agreement as to such contract, other than is plainly expressed in the policy issued thereon.”

That is the second prohibition, and the third is:

“Nor shall any such company or agent pay or allow, or offer to pay or allow, as inducement to insurance, any rebate of premium payable on the policy, or any special favor or advantage in the dividends or other benefits to accrue thereon, or any valuble consideration or inducement whatever not specified in the policy contract of insurance.”

The pleadings here concede that these notes were given for a premium in consideration of the issuance of a policy by the Phoenix Mutual Life Insurance Company. The answer, as I ' have said, attempts to assert that the terms of this statute were violated, and the question is whether the answer sufficiently asserts anything of that kind. It is alleged by the answer, among other things, that the promissory notes were executed and delivered to plaintiff, and—

“said life insurance policy was issued to defendant upon the express agreement that said notes be discounted with the firm of H. S. Walbridge & Company, of Toledo, Ohio, and a brokerage allowed to said firm, and that otherwise said promissory notes were to be returned to defendant, and said policy of life insurance canceled. That pursuant to said agreement and upon notice of failure of plaintiff to carry out the terms of said brokerage agreement, the policy of life insurance was returned on or about October 28, 1908, to the Toledo agency of said the Phoenix Mutual Life Insurance Company of Hartford, Connecticut, for which plaintiff was then the duly authorized agent, with request that the said life insurance policy be immediately canceled and said promissory notes set forth in plaintiff’s petition be returned to defendant. That defendant is and was at the time he entered into said brokerage agreement a member .of the insurance firm of H. S. Walbridge & Company, of Toledo, Ohio, who were to brokerage said promissory notes set forth in plaintiff’s petition, and thereby becoming a beneficiary of a rebate illegal and contrary to Section 3631-4, Ohio Revised Statutes; 86 and 90 O. L., pp. 220, 345.”

These are all the material averments essential to an understanding of the question. The. terms of the policy are not recited in the answer, nor do they appear elsewhere in the record.

I might indulge in a considerable discussion as to the various clauses of this statute, and a critical examination of this answer, to determine whether or not the case as stated in the answer is brought within the inhibitory provisions of the statute, but I wish to be as brief as possible consistently with a- clearness of statement, and it perhaps suffices, in the first place, to say that as to these, three prohibitions, the defendant surely does not bring his case under either the first or the second. He does not show that if a special privilege or benefit is sought to be extended to him as a member of the firm of H. S. Walbridge & Co., that a like privilege is not extended to all members of firms soliciting insurance where policies are issued to the members of such firms For aught that appears in this answer, he is not favored as against others of the same class; nor does he say that it is not the custom of the company to make precisely the same favorable proposition to all of its policy holders of every class. There is nothing in this answer that excludes that idea, and of course the answer to present a defense must embody in it terms which show the transaction to be violative of the provisions of the statute. If it were clearly in violation of the statute, it is our judgment that the notes would not make a basis of action in favor of the party holding them.

Now the third provision of the statute is:

“Nor shall any such company or agent pay or allow, or offer to pay or allow, as inducement to insurance, any rebate of premium payable on the policy, or any special favor or advantage in the dividends or other benefits to accrue thereon, or'any valuable consideration or inducement whatever not specified in the policy contract of insurance.”

Nowhere does his answer allege that the insurance was induced in any way by this agreement as to “brokerage.” For aught that appears in the entire answer, Walbridge & Company may have been soliciting insurance from other people for the Phoenix Mutual Life Insurance Company, and the -transaction may have been a method of paying them, not a rebate to -one of their members who was taking out insurance, but a brokerage -or compensation for services which they had performed or might perform for the insurance company named in the soliciting of insurance from such other people. There is nothing in this answer to exclude that idea, and we feel quite clear that the defendant has not brought himself so within the terms of the statute as.to make invalid the notes .which he has given, or to make them fail for want of consideration. As to the latter matter, as to whether they might fail for lack of consideration, it is to be noted that the pleader nowhere says that the contract, whether legal or illegal, has been violated. He says that pursuant to such agreement, and upon notice of the failure of plaintiff to carry out the terms of said brokerage agreement, the policy of life insurance was returned. He does not allege that in fact plaintiff did violate his agreement. His statement amounts to little more than that he received notice of such violation. In other words, he says that he is informed that the plaintiff refused to carry out the terms of -the brokerage agreement. The answer is rather vague in its -terms, and while the pleader may have intended to express a good deal more than he has expressed, in our judgment he has not made such an answer as would have justified the holding of its sufficiency by the .trial court. We think the court of common pleas properly rendered a judgment in favor of the plaintiff upon the pleadings.

It is said that a motion for a judgment upon the pleadings was not the proper, remedy of the plaintiff; that demurrer should have been filed to the answer, and thereby its sufficiency tested, and a decision of one of the circuit courts of the state in which the opinion of Judge Shauck, who was at that time a member of that court, is cited as authority for this claim, Columbus v. Reinhard, 1 C. C., 289. Judge Shauck in this opinion disapproves of the practice of rendering a judgment upon the pleadings without testing the sufficiency of an answer, but we do not think that the rendering of such a judgment is prejudicial error, because if the answer is insufficient, no judgment in favor of the defendant could have been rendered upon the basis of the statement therein alleged. The pleader has precisely the same power" and right to appeal to the trial court for the exercise of its judicial discretion in permitting him to amend his answer or to file some other pleading, if he saw fit, as he would have had if a demurrer to his answer had been sustained. No request seems to have been made for leave to amend, or if one was made it is not shown in the record.


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    RECOVERY FOR. INJURIES SUSTAINED IN ALIGHTINC FROM A STREETCAR.
    Circuit Court of Hamilton County.
    The Cincinnati Traction Company v. Florence Fesler.
    Decided, February 26, 1910.

      Negligence — Weight of Evidence Supporting Verdict — Affidavits as to Newly Discovered Evidence.

    A new trial will not be granted on the ground of newly discovered evidence, unless the affidavits in support thereof contain statements which if offered in evidence, would require the jury to return a different verdict.

      Joseph Wilby, for the traction company.

      Cogan & Williams, contra.

      The defendant in error recovered a judgment below of $2,955 on account of injuries sustained in alighting from a street ear.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   The two grounds of error relied upon by plaintiff in error for a reversal of the judgment below are:

First. That the verdict and judgment are against the weight of the evidence.

Second. That a new trial should have been granted on account of newly discovered evidence.

The court has examined the record in this case and can not agree with counsel for plaintiff in error that the verdict and judgment is against the weight of the evidence.

The newly discovered evidence relates to certain statements contained in the affidavits of Elizabeth P. Fridman and Harrison W.ilLauere Lowe relative to the condition, complaints and conduct of. the defendant in error from the middle of November, 1908, to February 4, 1909. Said statements, being such as claimed by counsel for plaintiff in error, might tend to disprove the condition of defendant in error as testified to by her at the time of the trial.

We do not think the statements disclosed by the affidavits can be classified as newly discovered evidence. It is the province of the court to determine whether by the introduction of. newly discovered evidence a different verdict ought to be obtained. The rule seems to be, that in considering the motion for a new trial upon the ground of newly discovered evidence, the court will not inquire, whether taking the newly discovered evidence in connection with that exhibited on the trial, a jury might be induced to give a different verdict, but whether the legitimate effect of such evidence would be to require a different verdict. Ludlow Heirs v. Park, 4 Ohio, 45.

In considering all of the affidavits in the bill of exceptions in this record, we do not believe that if a new trial was granted and such statements offered as evidence they' would require the jury to return a different verdict.

There being no errors in the charge of the court the judgment ' will be affirmed.


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    AS TO LIABILITY OF A MASTER. FOR INJURIES RESULTING FROM NEGLIGENCE OF A FELLOW-SERVANT.
    Circuit Court of Hamilton County.
    George E. Mason v. John R. Ferguson.
    Decided, March 5, 1910.

      Master and Servant — Liability of Muster for Failure of Foreman to Inspect Scaffold Upon Which Men were at Work — Construction of Section 4288o — Charge of Court.

    1. In an action by an employe for injuries resulting from the falling of a scaffold, the master can be held liable on the ground of negligence of his foreman only upon the presentation of proof that it was the duty of the foreman to inspect the scaffold.
    2. The provisions of Section 4238o, as to an employer’s liability for personal injuries to an employe notwithstanding the negligence of a fellow-servant, do not apply to a temporary scaffold ere.cted by the employer on the land of a third person.
    3. A charge of court that “if the jury found the platform (scaffold) in question was an appliance used in the business of the defendant and necessary to his business, then the statute would apply,” is erroneous where the scaffold was a temporary structure built in sections as the work on the building progressed.

      Wm. Walker Smith and H. C. Busch, for plaintiff in error.

      M. O. Burns and Powell & Smiley, contra.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   The plaintiff in the original action, J. R. Ferguson, was injured by reason of the scaffold upon which he was working as a bricklayer breaking and precipitating him to the ground. The negligence charged was the use of a defective board called the “ledger,” which supported the platform upon which he was working, and was attributed to the carpenter, a fellow-servant of the plaintiff, or to the foreman who inspected the scaffold after it was constructed.

Although there is no positive proof that it was the duty of the foreman to inspect, yet it may fairly be inferred from his testimony that it was customary for him to inspect and that he did inspect this scaffold before it was used. If he did not, therefore, exercise ordinary care in performing that duty, his want of care would be chargeable to the defendant, because the evidence is undisputed that he was placed by the defendant in authority and control over the plaintiff. If however the evidence is insufficient to support a finding that it was,the foreman’s duty to inspect, then the question arises whether the defendant is responsible for the negligence of the carpenter, a fellow-servant of the plaintiff, or in other words, do the facts bring the case within the provisions of Section 4238c, Revised Statutes:

“An employer shall be 'responsible in damages for personal injuries caused to an employe, who is himself in the exercise of due care and diligence at the time, by reason of any defect in the condition of the machinery or appliances connected with or used in the business of the employer, which- arose from, or had not been discovered or remedied owing to the negligence of the employer, or of any person in the service of the employer, intrusted by him with the duty of the inspection, repair, or of seeing that the machinery or appliances were in proper condition. ’ ’

The chief object in enacting this section was not to impose a liability upon an employer for failing -to perform his duty to exercise ordinary care”to furnish a reasonably safe place for his employes to work in, or reasonably safe machinery and appliances to work with, because that liability already existed at common law; but to impose a liability upon the employer for negligence of fellow-servants in performing the duties therein mentioned.

It was not the duty of the defendant to furnish to the plaintiff a permanent and completed appliance, but it was itself a part of the work which he and his fellow-workmen were engaged in, to-wit, the building of a brick wall, the scaffold being constructed in sections as the work progressed. The common law liability of the defendant ended when he furnished reasonably safe materials and reasonably competent men to do the work. It was the duty however of the carpenter to use ordinary care in constructing the scaffold, and in seeing that it was in proper condition, for failure of which duty the statute makes the-employer liable, unless as claimed by counsel the scaffold in question was not'an appliance within the meaning of this section. A similar statute in the state of Massachusetts, which has been often construed by the Supreme Court of the state, is as follows:

" Where after the passage of this act personal injury is caused to an employe, who is himself in the exercise of due care and diligence at the time; by reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer, which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer and intrusted by him with the duty of seeing, that the ways, works- or machinery were in proper condition * * * the employe has the same right of compensation and remedies, " etc.

In the case of Burns v. Washburn, 160 Mass., 457, the first proposition of the syllabus is as follows:

“A temporary staging, put up by masons in the employ of a contractor for the purpose of erecting a building on the land of a third person, is not a part of the employer’s ‘ways’ or ‘works’ within St. 1887, c. 270.”

In the case of Adaskin v. Gilbert, 165 Mass., 443, the second proposition of the syllabus is as follows:

‘ ‘ A temporary staging, put up by an employer and his fellow-servants for the purpose of painting the outside of a building is not within the term ‘ways, works or machinery’ in St. 1887, c. 270.”

The reason assigned is that the statute refers to ways or - works of a permanent character, such as are connected with or used in the business of an employer; and that it does not apply to a temporary structure like a staging erected on the land of a third person.

So likewise we are of opinion that Section 4238o, Revised Statutes, does not apply to a temporary scaffold erected on the land of a third person; but was intended to avoid the rule.stated in the case of Railroad Co. v. Fitzpatrick, 42 O. S., 318, and like cases.

The court charged the jury as follows:

“If you find from the evidence that the platform in question was an appliance used in the business of the defendant and necessary in his business then this statute would apply.”

The temporary nature of the scaffold is undisputed in the record, hence this instruction is erroneous and no doubt influenced the jury to return a verdict for the plaintiff, although they may have found it to be the duty of the foreman to inspect the structure when completed, and that he negligently performed that duty.

The judgment will therefore be reversed and the cause remanded for a new trial.


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    INJUNCTION AGAINST FORFEITURE OF LEASE FOR. UNDER-LETTING.
    Circuit Court of Cuyahoga County.
    William Beckenbach v. Henry Harlow, Guardian, et al.
    Decided, November 17, 1909.

      Landlord and Tenant — Covenant Against Under-letting — Covenant Waived for a Time by Lessors — •Then Insisted Upon — Injunction Against Forfeiture of the Lease.

    Injunction will lie to restrain the lessors of premises from declaring the forfeiture of a lease containing a covenant against under-letting, where past violations of this covenant had been made with the knowledge of the lessors and without objection from them; but such an injunction will not operate to prevent lessors from insisting upon an observance of the covenant against under-letting in the future, after notice of their intention to thereafter stand on the covenant.

      Frank Butler and J. J. Hogan, for plaintiff.

      Berkeley Pearce, contra.
    Taggart, J. (sitting in place of Winch, J.) ; Henry, J., and Marvin, J., concur.
   The plaintiff, as tenant of the premises described in the petition, seeks an injunction restraining the defendant from ouster proceedings and declaring a forfeiture of the leasehold. The pleadings and testimony disclose that he has been in the occupation of the premises about ten years; has expended about $12,000 in improvements thereon; that unless this relief is granted he will be subjected to suits in forcible entry and detention, be dispossessed of the property and suffer great loss and damage, and that he will be without any adequate remedy at law.

The defendant in his answer admits many of the averments of the petition, and avers the facts to be that the plaintiff has sublet a suite of rooms to a tenant, and has received rent therefor. The defendant further admits that neither Abbie J. Harlow nor Sarah J. Harlow nor the defendant as guardian, have ever actually made any objection to the plaintiff sub-letting any portion of said premises until February, 1909; that on or about said date, defendant notified plaintiff that he was violating the covenants of his lease and elected to forfeit said lease for said under-letting, and refused to receive any further rents from plaintiff, and intends to and will insist on such forfeiture, and will adopt and pursue any legal measures to obtain possession of said premises, unless restrained by the courts.

It appears from the evidence that Abbie J. Harlow was the owner of these premises from the year 1899 to the year 1902; that she then conveyed the same to Sarah Harlow, who thereafter, until the year 1906, managed and looked after the premises in controversy; that in the year 1906 a guardian was appointed for Sarah Harlow, so that for seven of the ten years during which the plaintiff has been in the occupation of these premises the owners of the property have had every means of ascertaining how the premises were used and occupied. There is no evidence that any means were employed by the plaintiff to prevent them from knowing fully and completely everything concerning said property. On the contrary, everything that was done was open, visible and capable of ascertainment, and without any complaint or protest on the part of either of these owners, but all of the time by their apparent acquiscence, and acceptance of the rent from the occupying tenant.

This situation continued until February, 1909, when the guardian of Sarah saw fit to elect to forfeit this lease and dispossess the plaintiff, or threaten to dispossess him.

The principal ground of complaint is that one or more of the suites of rooms over the livery barn are or were rented to persons other than the employes of the plaintiff, without the consent in writing of the lessors, and that in consequence he, as such guardian, so elected to forfeit said lease and determined to secure the possession of the premises.

In the case of Union Cent. Life Ins. Co. v. Pottker, 33 Ohio St., 459, the court stated the rule in respect to forfeitures, as follows:

‘ ‘ Forfeitures are odious, and there must be no cast of management or trickery to entrap a party into a forfeiture.”

It would seem from., this entire testimony That the conduct of Abbie J. Iiarlow and Sarah J. Harlow fairly led the plaintiff into the belief that this covenant in respect to under-letting would not be insisted upon, and that in consequence he continued to sublet these suites of rooms, and also the portion of the premises that had been sub-let for a feed business without protest or objection, and the first protest came in February, 1909, in the shape of a declaration of forfeiture and a notice to vacate the premises.

We are of opinion that to permit the defendant to now prosecute a suit either in forcible detention or a suit in equity to declare a forfeiture would be a gross injustice, savoring of a fraud on the rights of the plaintiff

“Where the enforcement of the forfeiture would operate as.a fraud, courts of equity have granted relief though the forfeiture was incurred for other reasons than the non-payment of rent. Thus relief has been granted where the lessee’s breach was caused by conduct of the lessor which naturally induced him to believe that a performance of the conditions of the covenants would not be exacted.” 18 Am. & Eng. Enc. Law (2 Ed.), 391.

We think the language of Andrews, J., in speaking for the court of appeals in the case of Smith v. Church, 107 N. Y., 610, and particularly on page 618, is peculiarly fitted to this case:

“The lease contained a covenant by the lessee, his executors, administrators, or assigns, that he or any of them ‘shall not, or will not at any time or times hereafter, during the term hereby granted, lease, let or demise all or any part of the said premises, nor assign, transfer or make over the same or the present lease, or any of the renewals of his or their firm, to any person or persons whomsoever without the consent of the parties of the first part, their successors or assigns, in writing under.their seal, for that purpose first had and obtained. ’ It was shown on the trial that the house erected by the plaintiff was an apartment house and that the plaintiff occupied one range of rooms and let the other apartments to tenants by the month, by verbal lease, the rent being exacted each month in advance. It further appeared that the house had been occupied in this manner from the time it was built in 1876, and that in November of each year down to and including November, 1884, the plaintiff paid to the defendant the rent due under the lease, which was at all times received without objection, and the evidence justifies .the conclusion that it was received by the defendant with full knowledge of the character of the house, and that it was occupied as an apartment house. Subsequent to the commencement of the action rent fell due, which was not received, and it is claimed by the defendant that it is entitled to insist that the lease was forfeited by the underletting of apartments in the house after November 1, 1884, and that the receipt of rent up to that time did not operate to .waive a subsequent breach of the condition. Forfeitures are not favored, and Dumpor’s Case (2 Coke’s [Littleton], 119) is a notable instance of the strong leaning of courts against enforcing them. Following the principle of that case it was held in Brummell v. Macpherson (14 Ves. [Jr.], 173), that a condition against assignment in a lease was determined forever by the consent of the lessor to an assignment, although ‘to one particular person subject to the covenants in the original lease.’ The defendants on the fourteenth of December, 1863, consented in writing -that Eiernan, the original lessee, might assign the lease to the plaintiff upon .the conditions that the assignee should perform the covenants in the lease.
“But passing the question of the effect of this consent upon the rights of the parties, we are of opinion that the conduct of the defendant in receiving for a series of years,'without objection, the rent due on the lease, with knowledge of the actual situation, should, if necessary, be construed as a license to use and occupy the building as an apartment house, and not as a mere waiver from time to time of a particular 'antecedent breach of the covenant. The construction of the house indicated that it was designed for permanent use as an apartment house. It is consistent with ¡the circumstances and with fair dealing to construe the acts and silence of the defendant as an assent that the somewhat peculiar interest __ created by the letting of the apartments from time to time for brief periods, was not an under-letting or parting with any interest in the demised premises, within the meaning of the covenant.”

We are of opinion that the plaintiff is entitled to an injunction restraiiiing the defendant from declaring a forfeiture for the past violations of the covenants of this lease and from beginning any forcible entry and detention suits, or any suits to declare a forfeiture of said lease for said past violations, or for permitting his employes to occupy said suites of rooms when such occupancy is a part of the compensation or wage of said employes, or permitting plaintiff to continue to lease said part of said premises for a feed business as now and heretofore conducted, but this injunction is not to operate or prevent the defendant from declaring a forfeiture or seeking to secure the occupation of said premises for any violations of said lease subsequent to December 1, 1909.


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    INJURY TO A BOY EMPLOYED IN OPERATING A DEFECTIVE MACHINE.
    Circuit Court of Hamilton County.
    The Frank Unnewehr Company v. Frank L. Smith, a Minor, by His Next Friend, John F. Smith.
    Decided, February 26, 1910.

      Master and Servant — Machine Out of Order and Liable to Start Itself —Boy Employed to Operate It — Duty of Master to Instruct — Negli-. gence — Charge of Court.

    1. An employer will be held to have known that a loose key would be liable to cause a belt to shift from the loose to the fixed pulley and thus start the machine unexpectedly, while a boy sixteen years of age employed in operating the machine would not be likely to appreciate the danger, and the crushing of his hand by the sudden starting of the machine is a matter for which the master will be held liable.
    2. Where a machine is from any cause not reasonably safe to operate, and is especially dangerous for a boy of sixteen to operate, and the master knew or by the exercise of ordinary care would have known the facts with reference thereto, a charge of the court to the effect that under such circumstances it was the duty of the master to instruct the boy how to safely operate it is not erroneous.

      Robertson & Buchwalter, for plaintiff in error.

      Cogan & Williams, contra.
    The defendant in error recovered a verdict of $5,000 on account of the loss of a hand in machinery.while in the employ, of the Unnewehr Company, but the verdict was reduced by a remittitur to $3,500.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   In addition to general verdict for plaintiff the jury returned the following findings of fact:

‘ ‘ Q. What act or conduct, if any, of- this defendant was negligent in the sense of a neglect of ordinary eare which caused this plaintiff’s injury?
“A. Lack of instructions to plaintiff in operating press and proper maintenance of press as to general repairs.
“Q. What defect if any was there in the printing press or its appliances which caused the plaintiff’s hand to be caught in the press?
‘ ‘ A. Loosening of key in the tight pulley of the press. ’ ’

It is claimed that inasmuch as the plaintiff had operated similar printing presses, and understood the work which was in itself sinple, there could be no instruction given that would have avoided the accident; but the testimony showed the absence of the ordinary device for shifting the belt from the fixed pulley to the loose pulley on the line shaft, and for holding it in place, and that the key designed to hold the fixed pulley firmly to the shaft was loose, the tendency of all of which being to cause the belt to slip from one pulley to the other and start or stop the press according as it was running on the fixed or loose pulley.

This the defendant knew, or by the exercise of ordinary care would have known, while a boy of sixteen years of age w¡ould not likely appreciate the danger of the machine suddenly starting. The primary duty of the defendant was to remedy the defect, and if that was not done then to instruct or warn the plaintiff.

The following portion of the general charge is claimed to be-erroneous:

‘ ‘ It was the duty of the defendant, in the exercise of ordinary care, if it directed plaintiff to work at this machine, to furnish a machine and appliance that were reasonably safe for the work intended, and if same was not reasonably safe, and you find that said machine or employment thereupon and under the condition as charged was dangerous for a boy of plaintiff’s age, intelligence and experience to operate, and that the defendant knew, or in the exercise of ordinary care would have known, such to be the facts, then .it was defendant’s duty to properly instruct plaintiff how to operate the machine in safety to himself and to warn him against dangers therefrom, if danger tnere was.”

The first part of this instruction imposes an absolute duty on the defendant to furnish a machine and appliances that were reasonably safe for the work intended, which is incorrect, but as here used seems to us not prejudicial. It is merely primary and forms a basis for the ultimate duty imposed by the charge, to-wit, "to properly instruct plaintiff.”

In other words, if the machine was not, from any cause, reasonably safe, was especially dangerous for a boy of plaintiff’s age and experience, and the defendant knew or by the exercise of ordinary care would have known such to be the facts, the duty to instruct was manifest.

The special instruction at page 131 of the bill of exceptions pertains to the same subject-matter, and exacts a higher degree of care on the part of the defendant than the law requires; but, although erroneous, it does not affect the finding of the jury of negligence in maintaining repairs of press and appliances which; as before stated, was the primary duty of the defendant.

A careful consideration of the record discloses no error prejudicial to the rights of the defendant, and the judgment will be affirmed.