text:
    INSPECTION BY STOCKHOLDERS OF CORPORATION BOOKS.
    Circuit Court of Hamilton County.
    Ohio Humane Society v. William C. Biles.
    Decided, June 27, 1908.
    The provision found in Section 3254, Revised Statutes, requiring that the books and records of corporations shall be open to the inspection of stockholders at all reasonable times, has no reference to corporations not for profit.

      Ellis B. Gregg, for plaintiff in error.

      Province M. Pogue, contra.
    Smith, J.; Swing, P. J., and Gieeen, J., concur.
   We are of opinion that Section 3254. Revised Statutes, wherein it is provided that "the books and records of such corporation shall at all reasonable times be open to the inspection of every stockholder,” has reference to corporations organized solely for profit. It speaks of "stockholders,” "certificates of paid up stock,” the "assignment” and "transfer of certificates of stock.” This section therefore has in contemplation property rights, while in corporations "not for profit” there is no stock and no property right of a member is involved.

The statutes relating to the establishment of the Ohio Humane Society are contained in Chapter 13, Sections 3714 to 3725-2, and not being a corporation for profit it can not come under Section 3254, and for this reason also we do not think the case of Cincinnati Volksblatt Company v. Hoffmeister, 62 O. S., 189, is applicable to the present one.

While upon the face of the petition perhaps a demurrer would not lie, the answer sets up a good defense and it was error to refuse to .allow the same to be filed.

Judgment reversed.


source: Caselaw Access Project

license: Public Domain

text:
    RECOVERY OF MONEY ILLEGALLY PAID TO COUNCILMEN FOR. SERVICES.
    Circuit Court of Jefferson County.
    Walker et al v. Village of Dillonvale, on Relation of Thomas McCabe.
    Decided, May Term, 1908.

      Office and Officer — Compensation of Councilmen — Where Illegally Paid May he Recovered Back — Action for, hy Tax-payer — Parties—Community of Interest — Municipalities—Section 107 of the Municipal Code, and 1536-667-668 and 5008, Revised Statutes.

    1. Councilmen of a municipality are not entitled to receive compensation for their services until the same is authorized by ordinance, and money received by them therefor prior to the passage of such ordinance may be recovered back in a proper action.
    2. Where there is no statute, providing.for recovering back money so paid to councilmen, a suit in equity may be prosecuted for that purpose by any tax-payer on behalf of the municipality or on behalf of himself and other tax-payers, and in such suit all the councilmen so illegally receiving money may be joined, in one action to prevent a multiplicity of suits.

      Ershine & Smith, for plaintiff in error.

      W. G. Brown, contra.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Error to Jefferson Common Pleas Court.
   Iiarry Walker with five others were.elected members of council of the incorporated village of Dillonvale in April, 1905, and went into-office in May of that year.

Section 197 of the municipal code passed October 22, 1902, provides:

“Council shall fix the compensation and bonds of all officers, clerks and employes in the village government, except as otherwise provided in -this act. All bonds shall be made with sureties subject to the approval of the mayor. The compensation so fixed shall not be increased or diminished during the term for which any officer, clerk or employe may have béen elected or appointed; provided, that members of council may receive as compensation the sum of two dollars for each meeting, not to exceed twenty-four meetings in any one year, and they shall have such other powers as are conferred upon councils of villages by Section 1678 of the Revised Statutes of Ohio.”

In December of 1905, council passed a resolution to pay members of council for meetings theretofore held. The' amount was paid to each of them, and this suit was instituted by the village of Dillonvale, on relation of Thomas McCabe, a tax-payer, against each of said parties to recover back the amount so paid, they all being joined in the action. The suit is really one in equity to require them and each of them to pay back into the village treasury said sum of money and for a decree against each of them for said sum which, as claimed, was illegally taken from the village treasury.

The court of common pleas so treated the action and ordered each of the defendants to pay to the clerk of the court the amount received by him, to be turned over by the clerk to the village treasurer for the benefit of tlie village.

Three questions are made: First, was the money illegally paid to these eouncilmen? Second, had Thomas McCabe, as a tax-payer, a right to bring and prosecute the suit on behalf of himself, or for the benefit of the village? Third, was the suit properly instituted and prosecuted against all the eouncilmen in one action?

As to the first question. Council did not fix the compensation of the eouncilmen until after the performance of the services. It is well settled in this state that where services are performed by a public officer where no compensation is provided for, that he is presumed to perform the services gratuitously, and' that he can not recover any compensation for such services.

We have had this section before us before, and we have held that Council must fix the compensation before the services, are performed or none can be received. The statute says council shall fix the compensation and bonds,of all officers. When fix compensation? Clearly before the services are performed. We, therefore, hold the money was illegally paid to these defendants.

The next and .important question is: Had McCabe the legal authority to bring the suit ? There is no statute authorizing him to bring such suit. There is statutory provision providing that a tax-payer may call upon the solicitor to restrain the paying out of money illegally and, in case the solicitor fails, the taxpayer may bring suit in his own name, but none to recover it back after its illegal payment.

The provisions as to counties (Section 1277, Revised Statutes) and municipalities (1536-667 and 1536-668), are different in -this regard. In such ease are the people helpless; that is the claim of plaintiffs in error ? If that is so, then the law is indeed lame and impotent. If the money is still in the hands of the treasurer then there is relief; if it has left his hand then there is no relief.

It .is one of the principal objects of equity to afford relief when there is no remedy at law; and certainly a ease of this character affords a striking illustration of this very salutory principle of equity.

Judge Dillon, in his work on Municipal Corporations, goes into this question quite exhaustively. In Section 914 (731) it is said:

“In this country, the right of property holders or taxable inhabitants to resort to equity to restrain municipal .corporations and their officers from transcending their lawful powers or violating their legal duties in any mode which will injuriously affect the tax-payers — such as making an unauthorized appropriation of the corporate funds, or an illegal or wrongful disposition of the corporate property, or levying and collecting void and illegal taxes and assessments upon real property under circumstances presently to be explained — has, without the aid of statute provision to that effect, 'been affirmed or recognized in numerous cases in many of the states.
“It is the prevailing, we may now add, almost universal doctrine on this subject. It can, we think, be vindicated upon principle, in view of the nature of the powers exercised by municipal corporations and the necessity of affording easy, direct and adequate preventive relief against their misuse. It .is better that those immediately affected by corporate abuses should be armed with the power to interfere directly in their own names than to compel them to rely upon the action of a distant state officer. The equity-jurisdiction may, in such cases, usually rest upon fraud, breach of trust, multiplicity of suits, or the inadequacy of the ordinary remedies at law. It is advisable, in view of its importance, briefly to examine the doctrine above mentioned, and the grounds upon which it rests, in the light of some of the leading judgments of the courts, the better to see its scope, limitations, and application.
“The doctrine of the preceding section is also supported by an analogy supplied by a settled rule of equity applicable to private corporations. In these -the ultimate cesluis que trust; are the stockholders. In municipal corporations the cesluis que trust are in a substantial sense the inhabitants embraced within their limits. In each case the corporation, or its governing body, is a trustee. If the governing body of a private corporation is acting ultra vires or fraudulently, the corporation is ordinarily the proper party to prevent or redress the wrong by appropriate action or suit in the name of the corporation. But if the directors will not bring such an action, our jurisprudence is not so defective as to leave creditors or shareholdersremediless, and either creditors or shareholders may institute the necessary suits to protect their respective rights, making the corporation and the directors defendants. This is- a necessary and wholesome doctrine. Why should a different rule apply to a municipal corporation? If the property or funds of such a corporation be illegally or wrongfully interfered with, or its powers be misused, ordinarily the action to prevent or redress the wrong should be brought by and in the name of the corporation. But if the officers of a corporation are parties to the wrong, or if they will not discharge their duty, why may not any inhabitant, and particularly any taxable inhabitant,.be allowed to maintain in behalf of all similarly situated a class suit to prevent or avoid the illegal or wrongful act ? Such a. right is especially necessary in the case of municipal and public corporations, and .if it be denied to exist, they .are liable to be plundered, and the -tax-payers and property owners on whom the loss, will eventually fall are without effectual remedy.”

In the case of Newmeyer v. Missouri & Mississippi Railroad Company, 14 American Reports, 394, and in Russell v. Tate, 20 American State Reports, 193, the rule as enunciated by Judge Dillon is approved and affirmed. In the latter case it is held: “The relief granted may be either injunctive or affirmative.” And in the opinion it is said:.

“There is no foundation in the authorities for the claim that the power of chancery is only injunctive. It would be a reproach to justice if it were true. In the present case the appropriation was made, the warrant was drawn, and the money paid by the treasurer, before an .attorney could have comprehended the situation, and have written the caption of a complaint. Chancery has ample power to prevent further wrong and require reparation for that which has been done.”

Many authorities are referred to sustaining the opinion.

The third objection to the preceeding below is, that no action could be brought against all the defendants jointly, but that the suit should have been against each individual councilman. That there was no such community of interest as is required to permit a joint action.

What is such community of interest under the provisions of equity regarding the prevention of multiplicity of suits; must each .and all the parties be interested In the identical thing? We think pot. There is a community of interest where all the parties are interested in the same subject-matter and where the same‘'facts and rules of law govern them all; and in such case they may all be joined in the same suit, plaintiffs or defendants.

In Pomeroy’s Equity Jurisprudence from Section 255 to 260 there is an elaborate discussion of this question, and in Section 260 the learned author says':

‘ ‘ The only community among them is in the questions at issue to be decided by the court; in the mere external fact that all their remedial rights arose at the same time, from the same wrongful act, "and depend upon the same questions of law. This sort of community is sufficient, in the opinion of so many and so able courts, to authorize and require the exercise of the equitable jurisdiction, in order to prevent a multiplicity of suits.”

This would seem also to be in accordance with Section 5008 of the Revised Statutes.

The judgment of the court of common pleas will be affirme,d.


text:
    PLEADING IN AN ACTION FOR. A QUANTUM MERUIT,
    Circuit Court of Richland County.
    Douglass v. Downend et al.
    Decided, October 28, 1908.

      Pleading — Confession and Avoidance — Plea of, not Inconsistent with the Allegations of the Petition — Error.
    1. In an action for a quantum meruit for professional services rendered by an attorney, it is a complete defense that the plaintiff agreed’ before entering upon the case that he would, if necessary, prosecute it to the’ court of last resort for a contingent fee of one-third of the amount of the judgment recovered, and that subsequently, after losing the case in the court, below, he refused to prosecute' it to the highest court unless paid for so doing, and thereupoñ he was dismissed from, further participation in the case.
    2. A confession and avoidance is not inconsistent with the allegations of the petition, and where the reply denies nothing in the answer except what-is “inconsistent with the petition,” a court may properly give judgment for the defendant on the pleadings.
    3.. But where this was not done, and the case was tried to a jury who found for the defendant and judgment was rendered on their verdict, it is immaterial whether or not improper evidence was admitted, or the jury was misdirected, or other errors intervened at the trial.

      Douglass é Mengerl .and Reed & Beach, for plaintiff in error.

      S. L. Americus, contra.
    Henry, J.; Winch, J., and Marvin, J. (.all of the Eighth Circuit, sitting in place -of the Judges of the Fifth Circuit), concur.
    Error to the Court of Common Pleas of Richland County.
   In this proceeding' in error the parties stand in the relation in which they stood below. The petition below counts upon a quantum meruit for professional services as attorney, rendered to defendant “in and about prosecuting a certain action in the Court of Common Pleas -of Richland County, Ohio, said cause being styled Ethel Downend, plaintiff v. The Board of Education of Madison Township, Richland County, Ohio, and performing other business as such attorney, in counselling and advising defendants in matters relating to said action.”

The defendants -filed separate answers, which are, however, largely identical.

The fourth defense of Ethel Downend Wilson (for it appears that Ethel Downend had meanwhile married), alleges “that the plaintiff, A. A. Douglass, contracted and agreed with her, before entering into said services, that he would prosecute her case, entitled Ethel Downend vs The Board of Education of Madison Township, Richland County, Ohio, through the common pleas, circuit .and Supreme Courts of Ohio, if necessary; that his fees were to be contingent upon his sueessfully prosecuting the case to judgment and execution; that he was to receive one-third of -the amount of the judgment if he won the case; and he was to receive no compensation whatsoever lif he lost the case. The said A. A.' Douglass tried the case in the. common pleas court and lost the case. - * * * The said A. A. Douglass after he had lost said case in the court of common pleas, absolutely refused to prosecute said case any , further -than the circuit court, unless this answering defendant would pay him for so doing. Whereupon, and shortly thereafter, he was dismissed by this answering defendant from further participation in the prosecution of said case, for -the following reasons, namely: * * * _

“6. . Because he refused to comply with his contract and agreement made with this answering defendant for the prosecution of said case.”

The reply is as follows:

“Now comes the plaintiff and for reply to the separate answer of Jennie Downend and -the separate .answer of Ethel Down-end Wilson, s-ays -that he denies each and every allegation in said separate answers contained inconsistent with his petition herein, and having fully replied prays as in his petition. ’ ’

We think that the defense embodied in the quotation above made from the answer is a complete defense by way of confession and a voidance to the cause of action stated ip- plaintiff’s petition. Being a confession and avoidance, “it is not inconsistent with the- allegations of the petition. ’ ’

The reply, denies nothing in the answer except what is “inconsistent with the petition.” On -this state of the pleadings it would have been proper for the court below to have rendered judgment thereon. The court, however, tried the ease out to a jury, which found for the defendants below, and judgment was rendered accordingly. In the view we take -of the matter, it is wholly immaterial whether improper evidence was admitted, whether the jury were misdirected, or whether any other error intervened during the trial, for, as has already been stated, judgment against the plaintiif might well have been rendered upon the .pleadings, and the judgment below is therefore affirmed. .1° .. ■


text:
    ANTICIPATORY BREACH OF CONTRACT.
    Circuit Court of Cuyahoga County.
    Roosfeld, Administrator, v. Glasgow et al, and Glasgow v. Roosfeld, Administrator, et al.
    Decided, October 26, 1908.

      Attachment — Renunciation of Contract Sufficient Ground for — Agreement Relating to the Proceeds of Life Insurance — Bond—Sections 5521 and 55635.

    In an attachment proceeding where the affidavit alleges that the defendant has requdiated the contract upon which the claim in suit is based and refuses to carry out his agreement, the action is one on contract in the sense in which. that word is used in the statute, and a motion to discharge the attachment on the ground that'no breach of the contract has occurred will not lie.

      Rigley & Maurer, for Bertha Glasgow et al.

      Conway W. Noble, for George M. Roosfeld et al.
    Marvin, J.; Winch, J., and Henry, J-, concur.
    Error,,to, the court ojl copimon pleas.
   .Both, of these cases grow out of proceedings upon motions, to discharge; attachment made, by the .court of common pleas in a suit pending in that court, where George M. Roosfeld, as administrator of .the estate of William McQueen Teetzel, deceased, brought suit against Bertha Glasgow and James V. Teetzel.

The petition in the case alleges that a policy of insurance upon the life of William McQueen Teetzel in the State Life Insurance Company of Indiana, was taken out in the sum of $5,000; .that the beneficiary named .in the policy was the defendant, Bertha Glasgow, the sister of the insured; that a contract was made between the insured and his said sister by which it was agreed that this policy should be for the benefit of said Bertha only to the extent of an. indebtedness of $850 owing by the insured to said Bertha, and evidenced by'a promissory note, and also as security to her. for whatever amount she might pay on premiums on said policy. The petition further says that Bertha paid the premiums on said policy in such an amount as that, together with the $850 indebtedness,' the debt to her, .in the aggregate, from .the deceased is $1,400; that the contract between Bertha .-and the insured was that, except to the extent necessary to pay this indebtedness to her, the policy should'be for the benefit of the estate of the insured; that upon his death she should collect th§ amount owing upon the policy, pay herself what should then be due to her and pay the balance over to the representative of the estate of the insured. The petition avers that the insured is dead; but does not aver that the amount owing upon the policy has been paid, but says that upon the facts Bertha is indebted to the plaintiff in the sum of $3,600. The petition further avers .that the defendant, Bertha Glasgow; has assigned said policy to James V. Teetzel, her brother; that said- assignment was without consideration and done simply for the purpose of convenience to said Bertha Glasgow, and that the said James V. Teetzel has no interest whatever in said policy. The prayer of the petition is for judgment against the two defendants in the sum of $3,600.

On the day of the filing of the petition the plaintiff filed an affidavit, setting out substantially what is averred in the petition, and averring further that said Bertha has repudiated her said contract to pay the avails of this policy, after deducting the amount due to her on the promissory note and the premiums paid by her, and that she refuses to carry out the same. It further avers that each of said defendants is a nonresident of the state of Ohio; that the claim upon which the suit is brought is just and that he ought to recover thereon the sum of $3,600. It is further averred in the affidavit that the State Life Insurance Company of Indiana is indebted to said defendants in the sum of $5,000.

Upon the filing of this affidavit an order of attachment was issued against the two defendants, and garnishee process was issued and served upon an agent of the insurance company.

Each of the defendants, appearing for the purpose of the motion only, filed a motion to dissolve this attachment, the court sustaining the motion of James V. Teetzel and discharging the attachment as against him, but overruling the motion of the defendant, Bertha, and sustaining the attachment as against her. Thereupon Bertha comes into this court seeking to reverse the judgment overruling her said motion, and the plaintiff comes into this court seeking the reversal of -the judgment discharging the attachment as to James V. Teetzel.

First, as to the attachment against Bertha. The ground of the attachment being non-residence of the defendant, it must appear, under Rev. Stats., 5521, that the claim is for a debt or demand arising upon contract, judgment or decree, or for causing death, or a personal injury by a negligent or wrongful act. It is urged here on behalf of Bertha that the claim made against her does not bring it within these provisions of the statute. Of course if it does, i.t is because it is upon contract. It is said, however, that if it is upon the contract set out in the affidavit and in the petition, that that contract only requires payment to be made by her when she has recovered from the insurance company, but it is settled that a suit brought for the breach of a contract is a suit brought upon that contract. See Halbert v. Armstrong, 14 C. C., 296, where the suit was for a breach of a contract of marriage. Also Railroad Company v. Peoples, 37 O. S., 537, where the suit was based upon the contract of the railroad company to carry a passenger, and a breach was alleged in that defendant did not carry the passenger in safety. ■ But, it is said, there was no breach of the contract here, because nothing was to be paid by Bertha until she had recovered from the insurance company, and therefore, until she does so recover from the insurance company, she owes nothing to the plaintiff.

It is held, however, in numerous eases that there may be an •anticipatory breach by a renunciation of a party to a contract and an absolute refusal to be bound by it, and where that renunciation is complete the other party may bring'suit, founded upon such renunciation. See Roehm v. Horst, 91 Fed. Rep., 345. The second clause of the syllabus reads:

‘ ‘ Where one party, to a contract gives notice of his intention not to perform, the other js justified in treating such action as an anticipatory breach, and may sue for damages without waiting for the time of performance to arrive or making tender of performance.”

Also McCormick v. Basal, 46 Ia., 235. The first clause of the syllabus reads:

“Where -before the time of performance of a contract the promisor expressly renofinces it, the promisee is authorized to treat it as broken, and may maintain an action for the breach at once.”

Other authorities, to the same effect, are found in 9th Cyc. of Law and Procedure, beginning at page 635:

In view of the allegation of the affidavit that “said Bertha Glasgow has repudiated said contract and- refuses to carry out the same,” we hold that the plaintiff had a right to begin the action; that it was an action upon contract, in the sense in which that word is used in the statute, and that with the other .allegations -of the affidavit, the plaintiff showed a proper case for the allowance of the attachment, and that the action of the court in overruling ¡the motion to discharge the same was right, and that judgment is affirmed.

As to the motion made by James V. Teetzel, the court was clearly right in sustaining that motion and discharging the attachment! There was no contract between the plaintiff and James V. Teetzel, -and the ground of the attachment being the non-residence of Teetzel, it -is clear that the plaintiff was- entitled to no attachment, as against him.

It was urged ou the hearing that because of the failure of Teetzel to file the bond required by Rev. Stats., 5563b, his case was not properly in this court. Since the result here must be that the judgment of the court of common pleas is to stand, because if we dismiss the proceeding, it would be left to stand, and if we affirmed the judgment, it will stand, we affirm the judgment below without committing ourselves upon the question of whether bond should have been given by the plaintiff in error, under Rev. Stats., 5563b.


text:
    TITLE TO INTEREST IN LAND BELONGING TO HEIR WHO DISAPPEARED.
    Circuit Court of Monroe County.
    Ward v. Ward et al.
    Decided, November Term, 1907.

      Co-Tenancy — Title—Interest in Share of Co-parcener Believed to he Dead — Quit-Claimed Before Expiration of Seven Years — Operation of a Deed According to Its Intent — Possession—Improvements— Estoppel — Partition—Descent—Statute of Limitations.

    Valiere a tenant in common releases for a valuable consideration to a co-tenant by quit-claim deed all his right, title and interest in ' certain land therein described, expressly including the interest inherited by him from a brother, then believed to be dead; and where also the grantee goes into actual possession of the land upon which he and his heirs make valuable improvements and continue in peaceable possession thereof for more than twenty-one years, such grantee and his heirs acquire a good title to such interest as against the grantor and his heirs although the brother was not dead at the time of the execution of the deed of. release.

      Mallory, Jeffers & Sears, for plaintiff.

      Tollman & Spriggs and Jennings & Walion, contra.
    Cook, J.; Burrows,' J., and Laubte, J., concur.
   Moses Ward, the grandfather of plaintiff, Cyrus A: Ward, died intestate May 25th, 1861, leaving eight children his heirs at law, -two of whom were named Seth and Stephen. There was another son by the name of George Washington Ward. George Washington, then a young man unmarried, left home some time in 1854 to 1856 and has not been heard of since. At the time of his death Moses Ward was the owner of a farm in this county. On the 16th day of April, 1862, Seth Ward purchased the interest of his brother, Stephen, in the farm, as he also did from all the other six of his brothers and sisters, taking separate quit-claim deeds from each, similar in form. The purchase price and consideration expressed in the deed of Stephen was $400, which was its fair value. The deed to Seth from Stephen contained this clause: “And this instrument it is understood and agreed conveys any interest that he may have- of George Washington Ward’s, whom it is believed is dead.” The language in the petition is “presumed to be dead,” instead of “believed to be dead”; but that it .immaterial.

Seth Ward immediately upon securing these deeds in 1862 went into the actual possession of the farm and made valuable improvements upon the same and he and his children have been in the possession of the same ever since. In 1906, forty-four years after the making of the deed, some .of the heirs of Stephen Ward gave out in divers conversations that they were entitled to an interest in said farm as nephews of George Washington Ward, for the reason that their father, who was deceased,-had no power to convey -to his brother, Seth Ward, by quit-claim deed the .interest of George Washington Ward, the deed being made .before the expiration of seven years from the date of the departure of George Washington Ward, Stephen Ward then having but a mere possibility which was not the subject of release. 4th Kent’s Com., 206.

Cyrus.A. Ward, a son of Seth Ward, who was then principally interested in the farm, upon hearing of this claim of the heirs of Stephen Ward, commenced .an action against George Washington Ward and all parties claiming under Moses Ward, the grandfather of plaintiff and defendants, and under George Washington Ward, to quiet his title.

Plaintiff in his petition and the contesting defendants in their answer all aver that George Washington Ward had not been heard of for nearly fifty years and was presumed tó be dead. George AYashington Ward was sought to be brought into court by service of summons by publication but this could not be done, and no decree can be taken against him, as all the parties rely upon his death before the commencement of the action. Young v. Heffner, 36 O. S., page 232.

Judge Boyston on page 237 says:

‘‘ The plaintiff was not, and from the nature of the case could not have been a party to the proceedings for partition instituted by two of his brothers in 1863, as those proceedings and rights therein asserted were founded and for their validity depended on the assumption of his death. The alleged title- or interest of his brothers and sisters, which was purchased by defendant Heffner, rested wholly on the presumption that the plaintiff was dead, such presumption being founded on the fact that the plaintiff had been absent and unheard of, for the period of seven years. ’ ’

This disposes of the ease as to George Washington Ward. His absence is only prima facie evidence of his death, and upon it being shown that he is alive his rights in the property may be asserted at any time.- In the case referred to it is held:

“The presumption of death which arises from the absence of one from his home for the period of seven years, and who in the meantime is not heard of is -but prima facie evidence of the fact and may be rebutted by counter proof.”

The only question, therefore, is between the plaintiff, the son of Seth Ward, and the contesting defendants, the sons of Stephen Ward.

The claim of defendants' is that at the -time Seth bought the interest of Stephen, and the quit-claim deed was executed, George Washington Ward had not been gone from his- home and unheard of for seven years, and that therefore, as before said, the interest of Stephen was a naked or remote possibility, and not the subject of release. Much reliance is placed upon the case of Needles, Executor, v. Needles, et al, 7 O. S., 432, but we do not think that case is applicable to this case. In that case the son simply gave a receipt in consideration of an advancement made by the father that the advancement' was to be in full of all claims he might have against his father’s estate after his death as one of his heirs, and -it was held that such agreement imposed no obligation for the obvious reason, that an executory contract could not be made to control the distribution of -the father’s estate after his death.

This case is entirely different. Stephen sold to Seth for a valuable consideration all the interest he might have of ‘ ‘ George Washington Ward, who is presumed to be dead.” Stephen claimed to be the owner of the interest of George Washington Ward and so sold it and. gave a deed for such interest, practically setting forth that he was the owner of the interest.

True it was a quit-claim deed containing no covenants; simply a deed of release; but we think that makes no difference, and that by such sale and deed Stephen and -those claiming under him are now estopped from making any claim to such interest as -against the heirs of -Seth. Such we understand to be the holding in the case of Magruder v. Esmay, 35 O. S., page 221. It is there held:

"A patent issued by the United States, in the name of one who had purchased the land, and made entry under the act of Congress -of April 24, 1820 (3 U. S. Stat. at Large, 556), inures to the benefit -of the grantee -and his heirs and assigns, under a quit-claim deed executed* by the purchaser before the patent issued. The patent founded on such entry, relates back, and takes effect from the time the same was made.”

In the opinion it is said:

"The plaintiff having succeeded to the title of Mrs. Farrell, and a legal estate being essential to the maintainanee of the action, -the question at -once presents itself, whether the patent to Porter so far inured to the benefit of Mrs. Farrell as to vest in' her a legal estate. Had the deed to Arnet been with warranty of title, there is no doubt, that on the receipt by Porter of the patent from the government, an estoppel would have arisen in favor of Mrs. Farrell. Nor is there any doubt that a party is estopped from denying the operation of a deed according to its intent, where, either by recital, admission, covenant, or otherwise, it appears that a certain estate was intended to be conveyed. Rawle on Covenants for Title, 338; Shepard’s Touchstone, 82.”

In the case of VanRensselaer v. Kearney et al, 11 Howard, 297, on pages 324 and 325 it is said:

“If the seizure or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was so seized and possessed at the time he made the conveyance. The estoppel works upon the estate and binds an after-acquired title as between parties and privity.”

We are not so sure from the evidence that George Washington Ward was known to be alive within seven years from the execution of the deed by Stephen to Seth; indeed we are of opinion that the strong tendency of the evidence is the other way; but whatever the evidence may show upon this question as we have seen makes no difference.

Again, is not the bar of the statute of limitations- conclusive ? The claim of defendants is that as these parties are all tenants in common the statute of limitations has no effect. This claim is not well founded in this case. If Seth were living he would have a right to rely on the bar of the statute, and his- children have the same right. The deed was made in 1862, and Seth went into possession under, the deed and made valuable improvements and paid taxes on the entire interest. This was an assertion of an independent absolute title under the deed as against Stephen and indeed against all the heirs of the grandfather, as he obtained like deeds- from all of them. These deeds were placed upon record. It was a direct assertion of entire title and a public proclamation to all persons that he was such owner. He took the property under color of title at least; he went into possession under such -title, and he and his heirs continued in such possession openly and adversely as against these claimed tenants in common for more than forty years. Taken altogether “it was an overt act of an unequivocal character clearly indicating an assertion of ownership of the entire premises to the exclusion of the right of the co-tenant.” Young v. Heffner, 36 O. S., 232, supra.

Judgment in favor of plaintiff quieting his title at costs of contesting defendants, and same judgment may be entered in favor of defendants 'who are making same claim as plaintiff on their cross-petition.


text:
    CORPORATIONS WITHOUT AN INSURABLE INTEREST IN THE LIVES OF DIRECTORS.
    Circuit Court of Hamilton County.
    Security Mutual Life Insurance Company v. The J. M. Schott & Sons Co.

    Decided, November 14, 1908.

      Life Insurance — Insurable Interest — Corporations—Ultra Vires Acts by — Assent by Individual Directors not Equivalent to Action by the Board.

    1. Tbe execution of a corporation note is unauthorized unless it is in furtherance, either directly or indirectly, of the purpose for which the company was chartered.
    2. A corporation has no insurable interest in the lives of members of its board of directors who are not indebted to it.
    3. But were this not true, policies for the benefit of the company, procured by the secretary and general manager on the lives of members of the board, without authority therefor by the board acting as a board, are void where the premiums are to be paid out of the company’s treasury; and an action by the company will lie for the cancellation of such policies and recovery of the premiums paid.
    The brief of Herron, Catch & James, attorneys for plaintiff in error,
    cited with reference to insurable interest: 50 O. S., 595; 63 O. S., 478; 3 Nisi Prius, 216; 94 U. S., 561.
    That it is immaterial whether the beneficiary pays the premium : 94 U. S., 561.
    That a creditor of a corporation has an insurable interest in the life of the manager of the corporation who is indebted to him in no way whatever: 72 N. H., 12.
    That an insurance policy, .though valid in its inception, may be assigned to a person having no insurable interest in the life of the insured: 41 O. S., 323; 132 Fed., 444.
    Where the business of a corporation is usually done without formal meetings of the board of directors, the necessity for such formal meetings is done away with: 41 O. S., 558; 174 U. S., 552, at 573; 11 Col., 551; 30 Vt., 159.
    That a rebate does not invalidate a policy and, unless the policy itself is void, there can be no recovery of the premium already paid: 11 N. W. Rep., 660; 24 O. S., 67; 17 C. C., 531.
    That statements in the nature of. promises, or approximations as to what a policy will yield, do not give rise to an action based upon fraudulent representation: 23 Fed., 438; 96 U. S., 544; 120 Mass., 495.
    The brief of John J. Gasser cited'the following authorities: That a corporate act can only be exercised by a board as such, and not by members thereof not acting as a board: Young Lumber Co. v. Taylor Street Methodist Church, 5 Nisi Prius, 378 (Cuyahoga County Circuit Court); 1 Morawetz on Corporations, Section 531, and cases cited.
    That there is no insurable interest where the persons insured are not indebted to the company and not under contract of employment, taken on life insurance: Section 249.
    That a building association has no insurable interest in the lives of the stockholders: Bunyon, Life Insurance, 14-25; Trinity College v. Travelers Ins. Co., 113 N. C., 244; May on Insurance, Section 102a-107; Gilbert v. Sykes, 16 East., 157; Evans v. Jones, 3 H. & C., 77; Hartley v. Rice, 10 East., 22; O’Hara v. Carpenter, 23 Mich,, 410.
    That policies are rendered void by the allowance of a rebate: 93 O. L., 348 (R. S., 3631-35, Sec. 12); also 3631-567, Sections 2, 3, 4; Tillinghast v. Craig, 17 C. C., 531; Urwan v. North Western Life Ins. Co., 34 Ins. Law Journal, 727; Mount & Wardell v. Waite, 7 Johns Rep.. (N. Y.), 433; Insurance Co. v. Pyle, 44 O. S., 31-32; Insurance Co. v. Wright, 33 O. S., 533; Metropolitan Life Ins. v.-, 33 Ins, Law Journal, 643; New England Mutual Life Insurance v. Swain, 34 Ins. Law Journal, 1016.
    That the ' contract was entered into upon fraudulent representation and the premiums are therefore recoverable: 30 O. S., 656.
    Fraud of the agent is fraud of the principal, etc.: Cooley, Brief on Insurance, Vol. 3, pp, 2849-50; Equitable Life Ins. Co. v. Maverick (Tex. Cir. App.), 78 S. W., 560; 183 U. S., 25; 4 Ins. Law Journal, p. 899; Tennessee Sup. Court, Dec. Term, 1874; Martin & Cline et al v. Aetna Life Ins. Co.; McCay v. New York Life Ins. Co., 124 Cal., 270; Beckwith v. Ryan, 66 Com., 589; U. S. Life Ins. Co. v. Wright, 33 O. S., 534-5.
    Where a policy is void by reason of unintentional misrepresentation, an action, will lié to recover premiums paid: Insurance Co. v. Pyle, 44 O. S., 19; 183 U. S., 25; 33 O. S., 534.
    Mr. Gasser also cited: Equitable Life Insurance v. Wavebrick, 78 S. W., 560; McArthur v. Home Life Insurance Co., 73 Iowa, 336; Agricultural Insurance Co. v. Montague, 38 Mich., 268 to 272; 46 Mich., 473; British Workmen Ins. Co. v. Cunliffe, 18 Times Law Reporter, 502; Washington Life Ins. Co. v. Menefees, 9 Ins. Law Journal (Old Series), 118; Franklin Ins. Co. v. People, 32 Ins. Law Journal, 455.
    For the facts of this ease see .the opinion below, The J. M. Schott & Sons Co. v. The Security Life Insurance Co., 7 N. P.— N. S., 548.

      Herron, Gatch & James, for plaintiff in error.

      John J. Gasser, for J. M. Schott & Sons Co.

      Benner & Benner, for the Brighton German Bank.

      Bogers Wright, for A. Wolfsohn.

      Smith, Simonton & Hawke, for C. B. Smith, -trustee.
    Giffen, J.; Swing, P. J., and Smith, J., concur.

       Affirming Schott & Sons Co. v. Security Mutual Life Insurance Co., 7 N. P.-N. S., 548.

   The defendant in error, the J. M. Schott & Sons Co.,.was in.eorporated for the purpose of manufacturing cooperage, and unless the promissory note in suit was executed and delivered in furtherance of such purpose, either directly or incidentally, is unauthorized and void.

The insurant under each of the five policies was not indebted to the company, and under no obligation to it other than as stockholder, director or manager. The company was not investing surplus funds, but was incurring an obligation through its secretary and manager, without the assent of the board of directors, for the purpose of securing a policy of insurance for $5,000 on each of five directors, an object wholly foreign to its incorporation.

While it is true, as suggested by counsel, that each insurant might have taken out a policy, paid the premium, and made the corporation the beneficiary, yet in this' ease the applicant incurs no liability, and it is expressly agreed that the corporation shall pay all premiums, and did execute and deliver its note for the first two .annual premiums.

We think that the company had no insurable interest in its directors, and if it did that the secretary and manager was unauthorized 'to enter into the contract without the assent of the hoard of directors. Straus & Brother v. Eagle Insurance Company of Cincinnati, 5 O. S., 59; Ryan v. Rothwiler et al, 50 O. S., 595; Bradford Belting Co. v. Gibson, 68 O. S., 442.

Judgment affirmed.


text:
    ALIMONY.
    Circuit Court of Cuyahoga County.
    W. F. Hribal v. Marie Hribal.
    Decided, October 26, 1908.

      Husband and Wife — Allowance of Alimony — May be Modified Because of Changed Circumstances — But a New Action for a New Allowance not Permissible.

    While a former decree of court allowing a wife permanent alimony in a lump sum remains unimpeached, she will not be permitted after exhausting the amount awarded her to maintain a new and independent action for a new allowance.

      Conway W. Noble, for plaintiff in error.

      F. C. Friend, contra.
    ' Marvin, J.; Winch, J., .and Henry, J., concur.
    Error to the court of common pleas.
   Marie Hribal filed a petition in the court of common pleas against W. F. Hribal, averring that she is a bona fide resident of Cuyahoga county; that she is the wife of the defendant, W. F. Hribal; that the defendant, wholly disregarding his duty and obligations toward her, has grossly neglected his duty to her; and she says that on the 1st of September, 1904, the defendant . willfully degepte^ her, a®4 fro® that thn§ forward has refused to live with her. or to contribute anything to her support. She says, however, that in September, 1904, she brought suit against defendant for alimony; that she obtained a decree for alimony in that suit in the sum of $600; that this has been paid to her, and that she has expended it, all in her reasonable and necessary support; that she is now destitute; that the defendant has property and has an income as a practicing physician, and she prays for a judgment for alimony against him.

After the bringing of this suit she filed a motion in the court for alimony pendente lite. Upon' the hearing of this motion the court ordered that the defendant should pay to the plaintiff the sum of $25 per month, and an additional sum of $25 as for attorney’s fees. To this order the defendant below prosecutes error here.

The position taken by the plaintiff in error being, that'with the former decree of the.court allowing the plaintiff $600 alimony' remaining unimpeached, she is not entitled now to an order for further 'alimony.

In this contention we think the plaintiff in error is right. There are numerous cases where by reason of the change in circumstances. of the parties, in cases where alimony has been allowed, the court has, upon motion, modified the former order and allowed additional alimony, but we know of no ease in Ohio where additional alimony has been allowed after the decree for permanent alimony, except by modification of the former order, and it seems to us upon principle that one should not be permitted to maintain a neyv and independent action for alimony, after having recovered a judgment for permanent alimony, and such alimony has been paid. If this might be done, litigation, almost endless, might result. The wife at any time, after having obtained a decree for alimony, might bring a new suit and again recover alimony and so on month after month and year after year. Bursler v. Bursler, 22 Mass. (5 Pick.), 427.

Holding as we do that the plaintiff below is not entitled to prosecute the action brought by her, it follows that the court erred in allowing alimony pendente lite, and because of this the judgment is reversed.


text:
    PAYMENT OF INSURANCE MONEY TO LEGAL REPRESENTATIVES.
    Circuit Court of Muskingum County.
    Charles Hague. v. The Executors of the Estate of Thompson Hague et al.
    Decided, October 23, 1908.

      Legal Representatives — May be Shown to Mean "Heirs and Next of Kin” Instead of "Legal Representatives,” When — Appeal—Distribution of Life Insuranoe.

    1. The words “legal representatives” in tbeir strict, technical sense, mean executors or administrators; but these words appearing in a life insurance policy may be shown, by the context and surrounding circumstances, to mean “heirs or next of kin.”
    2. Whether an action is for the “recovery of money only,” and hence not appealable, is not to be determined by the pleader’s conclusions, or the prayer of the petition; but by a consideration of whether from the facts plead, any relief is necessary, other than a judgment for money.

      Winn & Bassett, for plaintiff.

      J. J. Adams and John Ii. Sionesipher, for defendants.
    Oraine, J.; Taggart, J., and Donahue, J., concur.
    Heard on appeal.
   Thompson Hague insured his life in the sum of three thousand and eighty dollars ($3,080), the policy providing that said sum should be payable to his “legal representatives” after the death of said Thompson Hague. Later Thompson Hague died and the insurance company paid said sum of three thousand and eighty dollars to the executors of said Thompson Hague, who retained the same and treated the money as assets of the estate of Thompson Hague.

After this had been done, Charles Hague, a son of Thompson Hague, brought an action in the Court of Common Pleas of Muskingum County against the executors of Thompson Hague and made the other heirs and next of kin of said Thompson Hague parties defendant, and in his petition alleged the issuance of the policy; the death of said Thompson Hague; the payment of skid money by .the insurance company to the executors; the retention of the same by them as assets of the estate of Thompson Hague; -and the relation of the other defendants to said Thompson Hague. The petition further alleged that said súm was to be paid, by the strict language of the policy, to the “legal representatives” of said Thompson Hague, but that in- fact it was the intention of said Thompson Hague and the insurance company, at the time of the issuance of said policy, that said sum should be paid to the heirs or next of kin, and that the true meaning of said words “legal representatives” was the “heirs or next of kin” -of said Thompson Hague and not his executors or administrators; that the insurance company, in paying said sum to the executors, did so in trust and for the benefit of the heirs and next of kin of said Thompson Hague; that the executors had refused to pay said sum to the plaintiff and the defendants, who were children of said Thompson Hague, and was treating said sum of money as assets of the estate, and prayed for personal judgment against said executors and asked the court to determine what part of said sum belonged to the plaintiff and what belonged to each of the'Other children of said Thompson Hague, who had been made parties defendant, and for such other relief as might be proper.

Later an amendment to the petition was filed, in which the plaintiff pleaded more specifically the meaning of the words “legal representatives” and the intent -and understanding of Thompson Hague and the insurance company at the time of the issuance of the policy, and in the prayer asked for a decree against the executors, directing them to pay said sum of money to the several heirs or next of’kin in -such proportion as the court should find them severally entitled.

A demurrer was filed to this petition and the amendment thereto, on the grounds of a misjoinder of parties defendant (not for a defect of parties plaintiff), and because .the petition and the amendment thereto did not state a cause of action, which demurrer was overruled and exceptions noted.

An answer having been filed and issue taken, the ease was tried to the court, without the intervention of a jury, and on such hearing the court found the several amounts due each, and ordered and directed the executors to pay said sums to said plaintiff and the other heirs in the amounts found due them respectively.

Thereupon the executors brought the 'cause to this court as by .appeal proceedings, and also by .error proceedings. In this court a motion was filed to dismiss the appeal for the reason that it was an .action for the “recovery of money only” and this court considered the motion to dismiss and the proceedings in error jointly. Whilst there were other errors alleged in the petition in error, the principal contention was that the words “legal representatives,” found in the policy, meant executors or .administrators and that no other meaning could be given these words; that if the intention was to pay the money to the heirs or next of kin, there should have to be a reformation of the policy, which had never been attempted.

This being the. ¿state of the proceedings before us, two leading cpiestions were considered, viz:

1. Can the words “legal representatives” be shown to'mean “heirs or next of kin”?

2. Was this cause appealable?

I think when this question was first presented to the court, each member thought that the words “legal representatives” could mean nothing more or less than their plain import, .and that the money passed to the executors or administrators to be administered upon .as assets of the estate, but upon an examination of the authorities we found that the consensus of authorities were to the effect, that ..the .words 11 legal representatives ’ ’ may mean “heirs or next of kin” and that the sense in which they were used is to be determined by the context and surrounding circumstances. The 125 N. Y., 411, is- a case directly in point and cites numerous authorities to support this contention. The Encyclopedia of Law cites many authorities to the same effect, and upon an examination of these .authorities, we are well satisfied that the law is that the words “legal representatives” may be shown to mean “heirs and next of kin” instead of “executors or administrators.”

The next question is, was this cause appealable?

The right of appeal is not a common law but a statutory right. There have been many decisions in .this state attempting to illustrate when an appeal will lie, but as the Legislature has so clearly described under what conditions a cause may be appealed, it would be useless' to refer .to the many decisions upon the subject. Section 5226, Revised Statutes, furnishes the criterion for appeals. Under its provisions, before an action can be appealable, it must appear:

1st. That the court of common pleas had original jurisdiction.

2d. That the action is a civil one.

3d. That a judgment or final order has been rendered by the court of common pleas.

4th. That the right to demand a jury in the court of common pleas did not exist.

If all of these requisities exist, then the cause is appealable, but if any one of them is wanting, the action is not appealable. In the case at bar every element .existed, unless it be the last one, viz: that the right to demand a jury did not exist, and hence if upon a consideration of the cause, a right do demand a jury in the court of common pleas did not exist, then clearly the case is appealable, but if on the other hand, a right to demand a jury in the court of common pleas did exist, then there can be no appeal. Did a right to demand a jury -in the court of common pleas exist? Section 5130, Revised Statutes, provides the issues of fact, to determine which a jury is demandable and reads as follows:

“Issues of fact, arising in actions for the recovery of money only, or specific real, or personal property, shall be tried by a jury,'unless a jury trial be waived, or a reference be ordered, as hereinafter provided. ’ ’

The test is not whether a personal judgment is asked, but whether or not the action is for the “recovery of money only.” If the action -is brought to recover some equitable relief, and the facts necessitate such relief, in order to give the party an adequate remedy, then the action is not for the “recovery of money only”; but if money only is the object of the recovery, and no equitable relief is necessary, then tbe cause is triable to a jury as -a matter of right.

If tbe insurance company bad not paid the money to the executors and the words “legal representatives” under the circumstances meant “heirs or next of kin,” then the beneficiaries would have had nothing more than a plain action at law against the insurance company on the policy. The insurance company, however, paid this money to the executors. The plaintiff in this action alleges in his petition that the money was paid in “trust,” but we. think that allegation was simply a conclusion of the pleader. There may have been some semblance of trust in it, but there was no such trust as is administered by a court of equity. The insurance company, in contemplation of law, simply paid the money over to the executors for the benefit of the beneficiaries. The executors stood in the nature of persons who received money to the use of the plaintiff and the other heirs or next of kin. When the executors refused to pay this money over to the proper parties, an action at law for the recovery of that money was the proper remedy. There was no equitable relief necessary or ap.propriate. When the plaintiff and the other heirs obtained a judgment against the executors for the money paid by the insurance company, that was all the relief they were in any manner entitled to, and this being true, the action was an action for the “recovery of money only,” and hence not appealable.

If upon the trial of the case it should have been found that the words “ legal representatives” meant executors or administrators, then the verdict or finding should have been for the executors ; but if it had been found that the words ‘ ‘ legal representatives” meant heirs or next of kin, then a verdict or finding for $3,080 should have been for the heirs.

It is true the petition asked the court to determine the proportionate amount of this money each of the heirs was entitled to, but that was a matter in which the executors were not interested. In.the adjustment of the .amount due each of the heirs, there was an element of equity jurisprudence, but so far as the issues between the plaintiff and the other heirs and executors were concerned, it was one for money only, and a jury was deman dable. Had the heirs attempted to appeal from the decisión of the court fixing their relative rights, another question might have been presented, but we do not pass upon that question in this ease, for the reason that no attempt to appeal was made by any of the heirs. JThe only attempt to appeal was by the executors, and our holding is, that, as between the heirs or next of kin, and the executors, the action was one for the “recovery of money only” and hence not appealable.

The motion to dismiss the appeal will be sustained.


text:
    EFFECT ON TAXABLE VALUE OF LAND OF REMOVAL OF COAL AND TIMBER.
    Circuit Court of Harrison County.
    F. E. Johnson v. John S. Lacey, Auditor, et al.
    Decided, May Term, 1908.

      Taxation — Severance of Taxable Value of Coal Strata and from Surface of the Land — Removal of Timber — Changes in Tax Valuations by County Boards of Equalisation — Sections 2753 and 2792a.

    1. Where coal is sold and conveyed after the regular decennial appraisement, it is the duty of the county board of equalization under Section 2792u of the Revised Statutes, passed April 23, 1904, upon application by the owner of the surface to equitably apportion the valuation between the owner of the surface and the owner of the coal according to the relative value of their respective interests.
    2. The sale and removal of timber from land does not entitle the owner of the land to any reduction of the decennial appraisement under Section 2753 of the Revised Statutes.

      Eollingsiuorfh & Worley, for plaintiff.

      E. 8. McNamee and Perry c§ Howland, contra.
    Cook, J.; Burrows, J., and Laubie, J., concur.
   This action is before us on -appeal. Plaintiff, F. E. Johnson, is the owner of a large farm in this county and was such owner at the time of the decennial appraisement in 1900. The farm consists of tilable land, woodland, and buildings; and is under-laid with a valuable vein of coal. The tilable land, woodland and buildings were appraised separately; nothing being said by the appraiser in his return about the eoal. In the trial before the common pleas -court, the evidence in which case is by consent used as the evidence before us, the decennial appraiser testified that the coal was not taken into consideration in the appraisement.

Johnson paid for the farm $14,000 but a short time before the appraisement, and it was appraised at $8,800.

January 30th, 1903, Johnson sold the coal -underlying the farm for the sum of $4,320, the consideration mentioned in the deed being $1. The auditor placed the eoal upon the tax duplicate at $4,320 against the purchaser, claiming that the company purchasing it had failed to list it^for taxation.

Some time after the sale of the coal Johnson cut the timber off the land and sold it for about $4,000. After the sale of the coal and timber Johnson made application to the auditor, under Section 1025 of the Revised Statutes, to deduct from the ap¡oraisement of his land the amount which had been placed upon the tax duplicate against the purchaser of the coal, to-wit, $4,320. This the auditor refused to do. In refusing to make the deduction under this section, we think, the auditor acted right. No proof was made by Johnson -as to the actual value of the coal as compared with the valuation of the whole farm as required by the section. Dye v. State, 73 O. S., 231.

Furthermore, we are fully persuaded that Section 1025 does not apply to cases of this character, but only to cases where there has been a separation by sale, or otherwise, of the surface of the land. That would seem to be so from the plain reading of the statute: “part pnly of any tract or lot.” This would hardly include the severance of the coal or other mineral from the surface.

In the case already referred to, Dye v. State, in the opinion on page 237 .it is said:

“It may be seriously doubted whether this statute authorized the severance of the surface of the land from the coal or other mineral embodied beneath it, so as to transfer the latter to a purchaser leaving the other parts of the land to stand in the name of the vendor.”

Johnson then made application to the county board of equalization at its annual meeting to apportion the valuation of his farm at the preceding decennial appraisement between him and the purchaser of the coal. This the county board of equalization refused to do. Johnson also made application to the auditor to deduct the value of the timber, which he had cut off the farm and sold, or an equitable part thereof, from the value as fixed at the decennial appraisement. This the auditor refused to do. He then brought a suit in the court of common pleas against the auditor and the commissioners, as the county board of equalization, to enjoin the auditor from continuing upon the tax duplicate the full amount of the decennial appraisement of his farm, and to require the auditor -to deduct from the same $4,320, the value of the coal Sold; and also the sum of $4,000, the value of the timber which he cut off the farm.

The court of common pleas refused to deduct the value of the coal sold, or .any part of the same, but allowed the claim for the timber cut off and sold, set up in the second cause of action, and enjoined the auditor from continuing on the tax duplicate the full amount of the decennial appraisement, and ordered him to deduct the value of the timber cut from the farm.

As to the claim made in the first cause”of action we see no reason why an injunction should not be allowed prohibiting the auditor from continuing on the tax duplicate the equitable value of the coal sold according to the relative value of the coal with the surface. This is the plain provision of Section 2792a, passed April 23, 1904, and we do not understand why the common pleas court decided otherwise.

As to the claim set up in the second cause of action it is clearly untenable. Plaintiff relies on Section 2753 of the Revised Statutes. This section has no application to cases where the owner voluntarily cuts off timber and sells it. That section applies to cases of “destruction by fire, flood, cyclone, storm or otherwise of any structure of any kind, or of orchards, timber, ornamental trees, or groves over one hundred dollars. ’ ’

Webster defines destruction as: “The act of destroying, tearing down, subversion, demplition, ruin, ’ ’

Plaintiff’s claim in his first cause of action will be allowed, and in his second cause of action will be refused. It does not, however, follow that Johnson should be allowed the full amount of $4,320, as a reduction of the appraised value of his farm for taxation at the decennial appraisement, but only an equitable division; and. the county board of equalization is directed to make such equitable division at its next annual meeting. Until such division is made by the county board of equalization, the auditor is enjoined from the continuing on the tax duplicate any greater sum than the amount of the decennial appraisement less the sum of $4,320.

The second cause of action of plaintiff’s petition will be dismissed. The costs will be equally divided between plaintiff and defendants.


text:
    DEPUTY CORONERS.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel Binyon, v. Houck et al.
    Decided, November 4, 1908.

      Office and Officer — A Deputy Coroner is not an Officer — Quo Warranto —Section 1209a.

    A deputy coroner, appointed under the provisions of Section 1209re, is not an officer, and quo warranto .will not lie to determine his right to hold the position.

      Williams Sowells, for relator.

      M. P. Mooney, contra.
    Marvin, J.; Henry,.J., concurs; Winch, J., not sitting.
   This proceeding is brought to test the right of Dr. Houck to hold the position of deputy coroner for Cuyahoga county. The right to proceed in quo warranto depends upon the question of 'whether the position held by Dr. Houck is an office,' under the laws of the state of Ohio,

Dr. Houck was appointed to the position named by the coroner of the county. The appointment was made pursuant to Section 1209a of the Revised Statutes of Ohio. This section provides, that the coroner in a county having a city of the first class of the second grade may appoint a deputy coroner, who shall have power to do and perform all the duties imposed by law upon the coroner of said county, in his absence, at a salary not to exceed $1,500 per annum.

If the deputy coroner, herein provided for, is an officer, after such appointment, quo warranto is the proper proceeding to test his right to hold the. office. It will be noticed that no duties are, in terms, imposed upon the deputy coroner, and that the authority given him is to perform the duties, which under the general statutes are imposed upon the coroner. He has no independent duties whatever. Nor has he any independent authority, except that when the coroner is absent he may perform the coroner’s duties. This seems to us clearly to indicate that his position is properly designated in the statute as -that of a “deputy.”

The word “deputy” is defined in Anderson’s Law Dictionary as “one who acts officially for another”; “the substitute of an officer, usually a ministerial officer.’.’ The definition in Bouvier’s Law Dictionary is “one authorized by an officer to execute .an office or right which the officer possesses, for and in place of the latter.”

The fact that the statute uses the word “deputy” is not necessarily controlling, but, as already said, the things which a deputy coroner may do, under the statute, being only to be done as a substitute for the coroner, that is to say, being only the things which it would be the coroner’s • duty to do if he was present, clearly make him a deputy only, and that being so, he seems clearly to be included in the general provisions of law relating to deputies. See Sections 9 and 10 of the Revised Statutes.

As against this, it is urged that this, court in the case of State, ex rel Vail, v. Craig, 21 C. C. Rep., 175, held that certain parties holding positions as deputy supervisors of elections and a party holding a position as clerk of such deputy supervisors, were officers, and that this is in conflict with the present holding.

The statute under which the parties in that case claimed to hold, is found in 89 O. L., at pages 455 and 456. An examination of the statute will show that the duties imposed upon -the deputjr supervisors and the clerk were not to be performed in lieu of some other officer or officers, but are wholly independent, notwithstanding the title given to the supervisors -is that of deputy supervisors, as the statute provides, in terms: “That there is hereby created the offices >of state supervisor of elections and of deputy state supervisor of elections1, with the powers and duties hereinafter prescribed for the conduct and supervision of all elections in this state, except for school, directors and road supervisors.” The fourth section of the statute provides: “for .the election by the board of deputy supervisors of a chief deputy, and a clerk,” and the duties of each are pointed out by the statute.

We think this clearly distinguishes the present case from that referred to. The conclusion is therefore reached that -the party here sought to be removed is not an officer, and hence quo warranto can not be maintained against him, and the petition is dismissed. . .

Cause No. 4059, in which the same relator seeks to have Alice Lines removed from the position of stenographer, must be decided in the same way, because the reasons suggested in the cause against Dr. Houck apply with equal, if not greater force, to the defendant Lines, and the petition in that case is therefore dismissed. .


text:
    REPLEVIN OF GRAIN FROM AN INNOCENT SUB-VENDEE.
    Circuit Court of Hamilton County.
    H. J. Good v. A. Bender and the B. & O. S. W. Railway Co.
    Decided, May 23, 1908.

      Sales — Vendor may Retahe from Innocent Sub-vendee — Purchaser Must Looh to Title, When — Constructive Delivery and, Conditions Attaching Thereto — Replevin—Delivery Order and Bill of Lading Distinguished.

    When grain is sold on the floor of a chamber of commerce, the rules whereof in the absence of a stipulation to the contrary require payment when the grain is weighed, subsequent purchasers are put upon inquiry as to title, and where payment has not been made, the vendor may replevin the property from an innocent sub-vendee for value.

      Kelley & Hauch, for .plaintiff.

      L. W. Goss and Hormón, Golsion, Goldsmith & Hoadly, contra.
    Gieeen, J.; Swing, P. J., and Smith, J., concur.
   The plaintiff as consignee and owner of a ear load of oats held by the carrier, the C., H. & D. Railway Company, on the 22d day of September, 1905, sold the same to the defendant, A. Bender, for cash on delivery and on weighing, and gave him an order of delivery. The same day Bender sold the oats to Maguire & Company and endorsed the delivery order to them, receiving therefor a check for $400 or more. The same day Maguire & Company sold to .the Gale Brothers & Company the car of oats, and the next day delivered to them the delivery order, receiving a check for $250. Thereupon the Gale Brothers Company surrendered the delivery order to the C., Ii. & D. Railway Company .and directed the ear to be delivered in the yard of the B. & O. S. W. Railway Company, which was done. On the 26th day of September, 1905, the plaintiff, IT. J. Good, commenced an action in replevin upon the ground that Bender did not pay for the oats upon delivery; that he was at the time of purchase insolvent and had no reasonable expectation of being able to pay for them.

It is clear that the constructive delivery to Bender was conditional on payment for the oats when received and weighed, and did not as between themselves prevent the plaintiff from reclaiming the oats upon failure to ,pay on such delivery. Wabash Elevator Company v. Bank, 23 O. S., 311.

But the chief question is whether he can retake them from the Gale Brothers Company, an innocent sub-vendee, for value.

A delivery order is not a negotiable instrument, nor does it have the same effect as a bill of lading, and even the latter conveys no better title to the assignee than his assignor had at the time of the assignment. Emery’s Sons v. Bank, 25 O. S., 360.

The rules of the Chamber of Commerce where the sale was made require, in -the absence of a stipulation -to the contrary, payment when the grain is weighed, and the subsequent purchasers being members were therefore put upon inquiry as to the title.

In the case of National Bank of Commerce v. Chicago, Burlington & Northern Railroad, Company, 44 Minn., 224, the second proposition of the syllabus is as follows:

“Where goods are sold for cash on delivery, and payment is made by the purchaser by check on his banker, such payment is only conditional, and the delivery of the goods also only conditional; and if the check on due presentation is dishonored, the vendor may retake the goods, even from an innocent subvendee for value, unless he has been guilty of such negligence or laches as would equitably estop him from so doing.”

That case, which cites with approval the case of Hodgson v. Barrett, 33 O. S., 63, is decisive of this ease, as the testimony discloses no negligence or laches on the part of plaintiff. The delivery order upon which the purchasers seem to have relied was not such evidence or ownership as calls for the application of the rule stated in the case of Eaton & Company v. Davidson, 46 O. S., 355, at 362: “That of two innocent persons, he must suffer who has placed the other in the power of the wrongdoer”; but on the contrary, under the rules of the Chamber of Commerce it called for an investigation, if there was any doubt concerning the terms of the original contract, or of the solvency of the purchaser. The court erred in its charge to the jury by calling the delivery order and giving it the effect of a bill of lading, and overruling the motion for a new trial upon the ground that the verdict was contrary to the evidence and the law.

Judgment reversed and judgment for plaintiff in error on the undisputed facts.


text:
    DIVERSION OF HIGHWAY BY RAILWAY.
    Circuit Court of Lorain County.
    Commissioners of Lorain County v. Lake Shore & Michigan Southern Railway Company.

      Railways — -Highways—Diversion of . Highway in Changing Grade of Railway — Presumption of Necessity — Proof of, Required in Condemnation Cases — Words and Phrases — Sections 328J¡ and 3277-78— Crossings.

    1. No judicial interpretation is necessary, under Section 3278, to authorize a railway company to change the grade of its line in order to avoid difficult grades or curves, the presumption being that the company would not undertake an expensive improvement unless' the change is necessary; but where an appropriation of land is required in order to make the proposed change, proof should be made to the court as to the necessity of the change.
    2. The word “construction” as used in Section 3284, providing that a railroad company in ’the construction of its road-bed may divert a road or stream of water when necessary, is not limited in its application to the original building of the railroad, but gives the right, in making a change of grade as authorized by Section 3277, to divert the course of a highway for the purpose of avoiding annoyance' to the public and dangerous or difficult curves or grades.

      A. R. Webber, Prosecuting Attorney, for the commissioners.

      J, M. Lemmon, contra.

      Heard on error.
    Beginning in the spring of 1889, the Lake Shore & Michigan Southern Railway Company began making very extensive improvements in its road-way between Berea, in Cuyahoga county, and Toledo, Lucas county, Ohio. Prior to that time the grade of the road had been very irregular. In making these improve-' ments it became necessary at some points tq raise high embankments of earth' and at others to deepen the cuts, so as to bring the road-way nearer to a uniform grade.
    In making these improvements a high embankment was built across a county road running east and west in Brownhelm township, so as to entirely obstruct travel over the same. This embankment was built across the road about thirty rods east of its junction with a north and south road. The railway company, instead of building approaches to this embankment on either side, so that teams might pass over it, bought a strip of land and constructed a highway along the north side of its track until it intersected the north and south road above referred to, about twenty rods north of the intersection of the old road. This resulted in an abandonment of about thirty rods of the old highway.
    The above action was brought hy the commissioners against the railway company to recover damages because of the obstruction so placed in the road, on the claim that its usefulness had been entirely destroyed. The railway company filed an answer setting forth in substance that the changes made were necessary for the purpose of avoiding difficult and dangerous grades; that in pursuance of the right conferred upon it by Section 3277, Revised Statutes, did raise the grade at the point named as to entirely obstruct the highway; but that it had restored the same to its former usefulness by -the construction of the road hereinbefore described.
    The case was tried in the common pleas court, resulting in a judgment for the railway company. It was taken to the circuit court upon a petition in error and a bill of exceptions containing all the testimony.

      Upson, J.; Caldwell, J., and Baldwin, J., concur.
   This case was submitted to the court below without a jury and decided by the court in favor of the defendant; a judgment was rendered and' it is to reverse the judgment thus rendered that this proceeding in error is prosecuted. The bill, of exceptions taken in the case sets forth the whole of the testimony, and it is claimed among other things that the decision of the court is not sustained by sufficient testimony.

The first point that is made with reference to the testimony is that it does not show that the railway company determined to raise this grade at the point named, or that it was necessary that it should be raised for the purpose of avoiding dangerous and difficult grades or annoyance to the public. The provision of the statute with .reference to such change of grade is found in Section 3277, Revised Statutes, and is .as follows:

‘ ‘ For the purpose of avoiding annoyance to the public travel, ’ or dangerous or difficult curves' or grades, or unsafe or unsuN* stanti-al grounds or foundations, .or when the road-bed has been injured or destroyed by the current of any river, water-course, or other unavoidable cause, or for other reasonable cause, a company may change the location or grade of .any portion of its road, whether heretofore made or hereafter to be made, but shall not depart from the general route prescribed in the articles of incorporation. ’ ’

In a succeeding section (3278, Revised Statutes), it is provided that for the purpose of making any such change, the company shall have all the rights, powers and privileges to enter upon and appropriate lands, etc., and provides that such appropriation shall be made in the usual manner in the probate court.

It will be observed that in Section 3277, Revised Statutes, authorizing the railroad company to make a change of its grade for the purposes stated, there is no provision for any judicial determination as to the necessity for such change of grade. It is left by the law to the judgment and discretion of the'railroad company itself to determine whether such a change of grade is or is not necessary, it being properly presumed that an expensive change of grade would be made by the company unless it, in good faith, deemed it to be necessary for such purpose .as that stated in the statute, and we think the whole of the testimony in this case shows such a state of facts as warranted the judge before whom the case was tried in finding that this change of grade was made for the purposes stated in the statute. If it had been necessary for the purposes of the change to appropriate land, then the rights of the land owner would have required and the statute, Section 3278, Revised Statutes, would have required that there should be proof made and judicial determination made of the necessity of the proposed change.

The next point in which it is claimed the testimony set forth in the bill of exceptions does not sustain the decision of the court, and the more important question, is that it does not sustain it in showing that the company had restored the highway to its former state of usefulness to the public. We have very carefully examined the testimony in that respect and. under the rule well established in this state, that the decision of a court upon an issue of facts, as well as the verdict of a jury upon an issue of fact, is not to be set -aside by a reviewing court unless it is clearly against the evidence, we think that we .are not authorized to set aside this finding upon the ground that it is not sustained by the testimony; we think the court Could fairly find from the testimony, which is conflicting, that the part of the highway substituted for that which was closed by the railroad company is as beneficial, if not more beneficial, to the- public than the highway was originally at that point. We -do not feel authorized in disturbing' the decision of the court. The more important question and the one mainly relied upon is whether the statute itself confers -authority in a case like this to divert a road from its course.

Section 3284, Revised Statutes, provides:

“A company may, whenever it is necessary in the construction of its road to cross a road or a stream of water, divert the same from its location or bed; but the company shall, without unnecessary delay, place such road or stream in such condition as not to impair its former usefulness, and any or all railroads hereafter constructed,, which shall cross any avenue ¡or public highway leading from a city of the first or second class to a public cemetery of such city, situate within or without the limits of any such city, shall be constructed so as either to pass under or over such avenue or public highway, at such elevation -or depression, as the case may be, as will allow the unobstructed passage of all wagons, carriages, or other vehicles which ,it may be necessary for any person to use upon such avenue -or public highway.”

The argument made is that this- can only be done when it Is necessary in the original construction of the road; that after a railroad has been constructed and has been in operation for a great number of years, this section of the statute does not apply and that -in order to authorize a diversion of a road, from its location, it is necessary for it either to procure additional legislation or it is- necessary for the company to proceed under these provisions of the statute which relate to the occupation of roads and streets by agreement between the railroad company and the public authorities having -charge of the road, in a municipal corporation, having charge of the streets, or commissioners having charge of a county road. .

The statute, .as has been seen, gives the absolute right to change the grade and to do that without a judicial determination of the necessity to do so. And while the language of the statute is that a road may be -diverted whenever it is necessary .in the construction of the road, it is claimed on the part -of the railroad company that such a change of grade as this is a work done in the construction of its road; that it is not simply what comes under the ordinary name of repairing the road or making a slight change, but that it is fairly to be considered as work done in the construction -of the road; that it is not limited to the original building of -the road but to a construction such as was done in this case. It is shown by the record to have been a change in -the grade of a road of a very extensive character, so as to make it -entirely different in many respects from what it was when originally constructed.

As I have said, the question is on-e not without difficulty, because, if you give the literal and more common meaning to the word “construction,” it might be limited to the original building of the road, but is also a word of more general meaning, and we think, taking the two Sections, 3277 and 3278, and reading-them in connection with this section, that it was not intended by the Legislature to limit this word “construction” to the original building of the road, and that it may be fairly held to give the right to divert a road from its location whenever such a change as this authorized by statute renders such a diversion of the road necessary, and we think the record in this case clearly shows that it was necessary to change the location of the road at that point in consequence of the change in the grade of the railroad.

For that reason and for the reason that we think the testimony shows no damage whatever was sustained by the commissioners representing the public, but that, in fact, the road is better for the public as changed than it was originally, we think the court did not err in its decision and that judgment is affirmed.


text:
    REDUCTION OF WIFE’S PROPERTY TO POSSESSION.
    Circuit Court of Hamilton County.
    Ella A. Miller, Executrix of Samuel Mills, v. Wm. C. McLean, Administrator of Susan B. Mills.

    Decided, November 14, 1908.

      Husband, and Reduction of Wife’s Property into Possession of Husband — 'Assent of Wife — Declarations—Stale Equity or Laches with Reference to Right of Recovery — Presumptions—Payment - of Wife’s Debts — ■Gifts—Voluntary Payments — Newly-Discovered Evidence — New Trial — Sections 5242-6, 5307, 5309, 58 O. L., 54, and 68 O. L-, 48.

    1. The doctrine of stale equity or laches does not apply to an action at law governed by the statute of limitations, which does not begin to run during coverture.
    2. Where a husband appropriates notes and money belonging to his wife to his own use, and during the remainder of his life covering a period of nearly thirty years renders no account to her as to either principal or interest, and she requested none but repeatedly said there was but one pocketbook in the family-, and after his death she elected to take under his will, which disposed of all property standing in his name without acknowledging any indebtedness to her, and the declaration was made by her that all her property had been given to him to dispose of as he saw fit, there is a clear reduction of the wife’s property by the husband into his possession.
    3. In an action by the administrator of the wife’s estate to recover from the estate of the husband property which thus passed into his possession, it is error after final submission of the case to refuse to hear new evidence discovered by chance which is not cumulative, but relates to payment by the husband of debts of his wife, and is proffered as a new defense.
    4. The presumption that, where the debt of a wife is paid by her husband with his own money, a gift is intended, does not apply where the debt was to a firm of which the husband was a member, and was a balance due for the construction of a building on a lot owned by the wife, which was soon afterward sold and the proceeds retained by the husband until his death.
    5. But while such evidence, if uncontradicted, would necessitate a different judgment, it is not error to refuse to grant a new trial, where the application therefor was not made by motion under Section 5307, or by petition under Section 5309.

      Eealy, Ferris & McAvoy, for plaintiff in error.

      William G. McLean and Echvarcl Barton, contra.
    G-iffen, J.; Swing, P. J., and Smith, J., concur.

       Reversing McLean, Admr., v. Miller, Excrx., 5 N. P.—N. S., 57.

   A statement of the case may be found in 5 N. P.—N. S., 57. If tbe evidence offered by the plaintiff in the original action is insufficient to show that Samuel Mills took possession of all the proceeds -of sale of his wife’s real estate, her admissions offered by the defendant make the proof complete even as to the $2,500 cash payment. It is plain also from all the evidence that she consented to such possession; but .the chief question is whether he reduced the property into his possession with her assent within the meaning of the act of 1861 (58 O. L., 54) as to $20,500 and the act of 1871 (68 O. L., 48) as to $6,000 of the sum sued for.

The evidence clearly shows that the husband intended and did appropriate -the notes and money of the wife to his own use. During the remainder of his life, a period of nearly thirty years, he rendered no account to her of the principal or the interest, and she requested none; but on the contrary repeatedly said that there was only one pocket-book in the family, and after his death she elected to take under a will which purported to dispose of all the property standing in his name without acknowledging any indebtedness to or claim in favor of her, and at the same time she declared that her property had been “given over to Mr. Mills and -he should dispose of it as he felt like; that she was satisfied.” This declaration was not an attempt to dispose of her property at that time, nor merely .a ratification of the acts of her husband, but was a statement of a past transaction whereby she had made a gift of her property to him. It was made when the subject under consideration was1 her property and property rights — when the influence and restraint, if any, of her htisband were removed, and was a frank and natural explanation of the conduct of both of them with reference. ,;to her_ property, which could -not have been explained in any other way without reflecting on the honesty and fidelity of her husband.

While it is true that Judge Ferris, who was present, does not recall this declaration, yet it does not affirmatively appear that he was in a position to hear everything that was said.' He was there for the purpose of obtaining her election under the will of her husband, and was not concerned with other matters discussed. It appears also that he recalls a declaration that the witness Catherine Lynskey does not, although she did remem.ber a like declaration made by Mrs. Mills at other times, to-wit, “There was only one pocket-book.” This failure of the two witnesses to recollect all that was said on that day is not unusual, but rather to be expected.

The declarations of Mr. Mills ‘ ‘ I have money of your aunt’s to invest” and “This is your aunt’s money” relaté to no particular sum and were made many years prior to -that of Mrs. Mills. While they could apply at the time to a part of the fund in controversy, yet they would cease to apply if Mrs. Mills subsequently assented to a reduction into possession of such fund by her husband, and that is the effect of her declaration. The very term “reduction into possession” implies an initiative on the part of the husband and the .assent, if given, is a subsequent act of the wife either expressed or implied. It seems clear to us that Mrs. Mills gave her express assent that her husband might use the fund in his possession for his own benefit.

The doctrine of stale equity or laches does not apply, the action being one at law and governed by the statute of limitations which did not begin running during coverture.

The refusal to open up the ease after final submission to hear newly discovered evidence material to the defense which.could not with reasonable diligence have been obtained before, is also a ground of error. The proposed evidence so far as -it relates to payment by Samuel Mills of his wife’s debts was not cumulative, but was aji entirely new and distinct hind of evidence directed to a different' defense. The circumstances of the discovery are such that it may fairly be said that the evidence could not with reasonable diligence have been sooner discovered. It was the result of chance or good fortune, more than diligent search and inquiry.

It is claimed, however, that the evidence is inadmissible, because the presumption is that when a man pays the debt of his wife with his -own money a gift is made, and numerous authorities are cited which hold that where the husband buys land, pays for it, and causes it to be conveyed to his wife, or expends his own money -in the improvement of her property, the law, in absence of proof to the contrary, presumes it to bo a gift. In all of these cases the payment or conveyance was wholly voluntary and naturally led to the conclusion that it was a gift.

The proposed evidence showed that -the wife was largely indebted to the firm of Mills, Spellmire & Co., of which her husband was a member, for a balance due for the construction of a building on .one of the lots in question — that he paid such debt or a part thereof; that a short time thereafter the premises were sold, and that the proceeds of sale came into his possession and were retained until his death. While there was no legal liability imposed on him to pay the debt, it was not a mere voluntary payment intended to enhance the value of her property, but to preserve that which she had, and when he took possession of •the proceeds of sale, ever after retaining them, the presumption of a gift is rebutted, or at least a reduction into possession with her assent is shown, to the extent of the debt paid. Counsel for defendant in error insists that Samuel Mills, almost from the date of his marriage, assumed control and management of his wife’s estate and became her trustee or agent; but he seems to deny him the right to credit himself with payments made in the interest of the trust and while acting as such trustee or agent. The same rule that required him to account for all money received as agent or trustee allowed him a credit for all payments, made in that capacity. The cash book of Mills, Spellmire & Co. was competent evidence under Section 5242, Sub. 6, Revised Statutes, of payment by Samuel Mills of his wife’s debt to the firm or other creditors.

• The entry in his diary purporting to be the result of an examination of his account as shown by the books of Mills, Spellmire & Co., some of which had since been destroyed by fire, and being against interest when made, was admissible as evidence of payment or assumption of payment óf his wife’s debt.

The evidence offered, if uncontradieted, would have required a different judgment; but as the application was not made by motion for a new trial under Section 5307, Revised Statutes, nor by petition under Section 5309, Revised Statutes, there was no error in overruling the same.

The judgment, being manifestly against .the weight of the evidence, is reversed and the cause remanded for a new trial.