text:
    SECURITY OBTAINED BY DURESS AVOIDED.
    Circuit Court of Cuyahoga County.
    The State Building & Loan Company v. Nettie E. Baker et al.

    Decided, January 29, 1900.

      Duress — When Criminal - Prosecution Amounts to Duress — Arrest of Brother May be Duress — Driress a Defense as Against Bona Fide Purchaser of a Mortgage — Transferor of Negotiable Securities Procured by Duress Becomes Principal Debtor.

    1. Where a criminal prosecution is for the purpose of collecting a debt, it is commenced for an illegal and unlawful purpose, and although there may be a good cause for prosecution, and although the form of proceeding and the writ be perfect and without fault, yet the law will regard such a prosecution as duress and any security obtained through it may be avoided.
    2. The arrest of a brother may amount to duress where a sister executes notes and mortgages to secure the debt of the brother and save him from criminal prosecution.
    3. Where notes and a mortgage are obtained by duress and transferred to a bona fide purchaser for value before maturity, duress being a species of fraud, may nevertheless be set up as a defense to the mortgage.
    4. Where one gives a note or mortgage under duress, even though it be for the purpose of preventing a criminal prosecution, that fact does not prevent the giver of the note or mortgage from defending an action brought upon it upon the ground of duress.
    5. Where one who has obtained a note and mortgage by means of duress, transfers them to an innocent purchaser for value and before maturity, he thereby becomes the principal debtor and the maker becomes the surety.

      Herrick & Hopkins, for plaintiff.

      Boynton, Horr & UKl, N. N. Cole and ~W. W Boynton, contra.
    Caldwell, J.; Marvin, J., and Hale, J., concur.
    This case is before us on appeal from the common pleas court.

       Affirmed without opinion, State Loan & Building Co. v. Baker et al, 65 Ohio State, 564.

   It seems that James B. Harrington was in the employ of Olmsted Brothers as a solicitor, and as a collector to some extent. Soon after he went in their employ they allowed him to retain monies or they loaned him monies or, perhaps, both, to the extent of several hundred dollars, and after he had been in their employ for some time, the Olmsted Brothers claimed to have found that he was appropriating to his own use other monies that ought to have been turned over to them. When they ascertained this fact, they attempted to get a settlement out of him for the entire amount that he owed them.

This settlement was pressed from time to time upon him, and each time he made promises that he would do something, but evidently his efforts in the direction of either payment or the giving of security for what he owed, including what he had lawfully received from them and what he had appropriated, all failed, and he was unable to make settlement and his promises became wearisome to the Olmsted Brothers. Thej^ called in their attorney and presented to him, not in a written form, but orally, the state of the claim between themselves and Mr. Harrington — as to that which had been loaned or was lawfully in his hands, as well as that which they claimed was unlawfully in his hands. The attorney went to his office and an arrest was made. Harrington was taken to the defendant, Nettie E. Baker, where she was teaching in this county, by the officer and she dismissed her school and went and signed the bail bond for Harrington.

This was on the 15th of March, and the case was continued until the 22d of. March; on the 22d it was continued until the 24th, but on the 22d of March there seems to have been a settlement of this claim, and Nettie E. Baker pledged property that ■was in her name and of which she was the owner, at least for the present .1 will say that, and the prosecution was dropped. The attorney of the Olmsteds went to the justice and told him that they would not appear; and when the dajr arrived for the trial neither the attorney for the Olmsteds nor the Olmsteds themselves appeared, and the prosecution was dismissed.

In settling this matter, Nettie E. Baker signed a number of notes amounting to some $1,617. She signed notes falling due at stated periods in the future, and gave a mortgage on property to secure the notes. The notes and mortgage were by the Olmsteds soon after turned over to the plaintiff, the State Building & Loan Company, and was then and still is held by that company.

The first note became due and was not paid. There was an option in the mortgage to treat them all as due, if there was a default in the payment of one, and availing itself of the option of treating them all as due, and seeking to foreclose the mortgage on this property, this action was brought.

Nettie E. Baker answered, setting up duress, although that term is not used; yet the facts are set forth, and it is proper to treat the answer as setting up duress and setting up the compromise of this criminal prosecution; and, upon those two defenses, she claims that the Olmsteds have no rights against her and have no right against her by reason of her giving the note and mortgage to them. As to the bank, she claims that it was not a bona fide holder of the mortgage, and she claims that the bank can make no defense against her rights as far as the mortgage is concerned, and asks to have the Olmsteds brought in and that it be determined that as between her and the Olmsteds, Olmsted Bros’, liability upon the notes be primary, and hers only secondary to theirs. The Olmsteds endorsed the note to the State Building & Loan Company.

We have heard the evidence in this ease, and the purpose of the criminal prosecution is the first question in order to be considered.

It seems that when the Olmsteds ascertained the fact that Harrington had been taking from them and appropriating to his own use moneys that belonged to them, they did not attempt to get him to turn back to them or secure to them the amount that he had illegally appropriated, but made the attempt to collect their entire claim, and seem, as between them and him, according to the testimony, to have attempted to make his settlement before arrest the settlement of the entire claim or none of it. In Mr. Olmsted’s testimony upon this matter he at no time mentions anything but the settlement of the entire claim. When the attorney went to the office of the Olmsteds, at the time he was first called, the entire claim was presented to him and, while not put in his hands in the form of an account, yet he at that time, and at ho other time, so far as the testimony shows, ascertained the exact amount that was loaned or was legally in Harrington’s hands, and the amount that he had illegally appropriated.

The prosecution was commenced for criminally appropriating a part of this money. When Mr. Harrington was arrested he was taken by the officer who arrested him a considerable distance into the country, to the school-house where his sister was teaching, and she was given to understand that he was under arrest and that she was needed to bail him. She came into the city and gave bail.

One of the Olmsted Bi-others testifies, substantially, that is, he admitted he so testified before and does not deny but it is true now, that the understanding between himself and brother and their attorney was, that this prosecution would be commenced and allowed to stand for a while — to hang in that condition.

The first attempt at any settlement is a little uncertain. Some of the witnesses place it immediately after the giving of bail, or very soon after; other .witnesses place it after the continuance — after the first time the suit' was set for trial, and it is not very clear just when the negotiations commenced to settle this claim; nor is it certain how long Mrs. Baker had to consider this matter, after it was first presented to her — I mean, the matter of her mortgaging her property.

The method in which Mr. Olmsted undertook to settle this claim — before criminal action was commenced against Mr. Harrington; the fact that the conclusion between the attorney and the Olmsteds was to commence the action and let it lie, let it rest, taken with what followed, shows that this action was commenced, not for the purpose of bringing into action the strong-arm of the criminal law of the state for the proper purposes, but for the purpose of collecting that debt. The prosecution, therefore, was commenced for an illegal and unlawful purpose; and, as we understand the law, if it is commenced for an illegal and unlawful purpose, although there be good cause for prosecution and-although the form of commencing the prosecution and the writ be perfect and without fault, yet the law will not uphold such a prosecution and it will be regarded as duress. Out of many cases we have seen, I submit the language used in the ease of Osborn v. Robbins et al, 36 N. Y., 365. I read from the opinion on page 371 :

“The note was executed when the principal defendant was a prisoner; and it could not be enforced by the payees if they obtained it through an abuse of legal process, for purposes of oppression and exaction. When a party is arrested without just cause, and from motives which the law does not sanction, any contract into which he may enter with the authors of the wrong, to procure his liberation from restraint, is imputed to illegal duress. It is corrupt in its origin, and the wrong-doer can take no benefit from its execution.
“In such a case, the element of voluntary assent is wanting. The parties do not meet on equal terms. The authority of the courts is perverted to unworthy uses. The instrumentalities employed to produce a consenting will are force and fraud, agencies which the law abhors. The prisoner is at the mercy of the accuser, and he submits to extortion, as the means of deliverance from oppression under the forms of law.
“The party who exacts a security from one whom he wrongfully restrains of his liberty, can derive no aid from the fact that the claim which he enforced by illegal means was just.”

The next question to be considered is whether Mrs. Baker stands in such relation to this matter that she can avail herself of the defense of duress.

It has been laid down that coercing a father or using duress ■upon a father to secure a note given by a child, and vice versa avoids the note, and one authority says that there is no doctrine limiting that rule; that the courts have only talked about a limitation, as between blood relatives because of the fact that some courts had laid down that the rule might extend to a son who had been coerced into giving security to relieve his father from imprisonment, or vice versa, and that no rule had ever been established by any court saying it should never be extended beyond that. So far as my observation goes, that is so. It has been extended in Illinois to a grandmother who was coerced into giving security to save her grandson; and, in Wisconsin, to a sister giving security to relieve her brother from imprisonment; and it seems to be extended to all cases where there is intimate relation, blood relationship, between the parties, if the coercion is sufficient to overcome the will of the party giving the security.

We do not hesitate to hold upon all of these authorities, that Mrs. Baker can avail herself of this as completely as could her brother had he given notes and security instead of her; and that, if she gave this security to save her brother from imprisonment; if she did it to relieve him from an unlawful imprisonment she can avail herself of the defense she sets up in this action. But it is contended that she had time for deliberation in this matter, and that having had time for deliberation, must now be inferred that the circumstances under which she gave this security did not deprive her of her free-will; but, having done it after time for deliberation, that the matter is supposed to have been done voluntarily on her part.

The class of cases holding this doctrine, almost all of them are eases where the party makes some payment after delivery of the security or note, or does some act, after the matter is settled in court to carry out the contract that he had entered into, after the time when the restraint or the impending calamity that is about to befall the party, has passed away and gone. And there are one or two cases where the party had time for deliberation and counsel with attorneys and friends, and then went and did it. But I find no case like this; and, as I have already stated, the testimony is very uncertain as to the time Mrs. Baker had to deliberate about mortgaging her property. I speak of mortgage, as that is the principal matter. The note was rejected when she offered to give her note; that was not relied upon; it was the property that was relied upon in this matter — that was the real gist of the matter. It is not known from this testimony, whether it was one hour or two hours or three hours that she had as time to deliberate whether she would mortgage that property or not. It is not known whether the pressure was continued or increased up to the very moment when she gave the mortgage; but, evidently, she gave it under that pressure, and we believe she was deprived of her free-will, when she gave it, by the pressure brought to bear, the arrest of her brother and likely the imprisonment of him, and whatever was said in regard to the settlement of the matter in her presence.

Having found these facts in the case, and the law as I have stated, the question now remains, what can she do?

It is claimed that this mortgage is in the hands of an innocent holder. But we have a ease in this state, Baily v. Smith et al, 14 O. S., 396, which holds that while notes may be in the hands of an innocent holder and fraud can not be set up against the innocent holder of the notes, that is not true as to the mortgage. This is different from the holdings in the United States courts and in most of the states, though not in all. This was a decision made by Judge Ranney and is good law in this state and has never yet been overruled. Whether the Supreme Court would extend it beyond a case of fraud we know not, and we need not consider it in this case for the reason that duress is a species of fraud; it is obtaining property or money against the will of the party, and fraud is exercised only to overcome the will of parties wrongfully, and duress is only to overcome the will of a party wrongfully or by fear; one is through confidence — the other through fear. They are so related that duress is a species of fraud.

This being true, and following the decision I refer to, we must hold in this case that the State Building & Loan Company can make no more defense to this action than could the Olmsteds and can maintain no action upon the mortgage as against Mrs. Baker that the Olmsteds could not maintain.

But it is strenuously contended in this case on one side, and, upon the other side, as strenuously the other way, that there was no illegal settlement of this matter; and the attorney who settled the matter with Harrington and his sister, Mrs. Baker, is brought in to testify, and we, all of us, believe him to be a person of the utmost veracity and would not hesitate to believe anything to which he would testify. We might believe that he was mistaken, but his testimony in this ease is largely a matter of argument in his own mind. Many of the things that he testified to are matters that he testifies to from his mode and method of doing business and what he now thinks he would have done under the circumstances; and his recollection is poor; he is mixed up in his dates; he is mixed up in the order in which the circumstances occur — -it is a matter of want of recollection; at the time this matter was disposed of, he dismissed it from his mind, no doubt he went into many other things; and under all the circumstances of the case, it is not surprising that he should forget much of the detail of the matter and much of the conversation.

Mrs. Baker testifies to certain matters and conversations between her and the attorney. The attempt is made to show that such did not take place as testified by her, at any such time; but the attorney is evidently very much mixed up as to the time-when he undertook to say it did occur; but it is almost evident, under the circumstances of this case, that it must have occurred at an earlier date than he said. He testifies that he told Harrington, at the commencement of negotiations, that, of course, he could not make any arrangement or agreement to dismiss the criminal prosecution against him or not to prosecute him. Evidently, to call forth that remark on his part, there must have been some consideration upon that matter, or we see no reason why he was called upon to state that. Of course a person in negotiating under the circumstances he did, may have had more or less fear that such a result might be inferred and might, as a precaution, make a statement of that kind. Harrington testifies to a conversation on the same matter with the Olmsteds, which is denied. But, when we take into consideration the method in which the Olmsteds undertook, in the first place, to collect their claim; when we take into the consideration the method of prosecution — to have it commence and then have it lie along; when we take into consideration that the day before the trial was to begin, their attorney went to the justice and said they would not appear to prosecute and they did not appear when the trial was to commence and it was dropped entirely; when all these facts and circumstances are brought to bear upon this matter — and the poor recollection of the attorney, and the hesitating manner in regard to this matter, in which the Olmsteds testify; we believe that Mrs. Baker was given to understand, and the Olmsteds and their attorney meant that she should understand, perhaps, not by express words, but by actions, and by their conduct taken in connection with what was said, that if she mortgaged her property and secured this claim, the prosecution would be dropped.

But it is contended that there was nothing' said or done in this matter that would influence her. I have already noticed the fact that it is claimed she had time for deliberation.

Mrs. Baker, who was once married, has a child fifteen years old, and after she became a widow, she went to teaching school in this county, and had bought a lot and, with the aid and assistance of her father, had undertaken to put a building on it, and was struggling to -make a home for her people and pay oif the debt sTie had incurred in getting this home. It was to her a ‘most important thing that she should be able to continue her occupation as a teacher; she had the care and support of her aged parents; and the continuing of her occupation that she might pay her debts, and make a livelihood for herself, and child and parents was at stake, and it was important to have no blot upon herself and her family. She was situated in such a way that her will would be easily overcome. Taking all these things into consideration, we believe that this lady acted without any free will, but under the pressure placed upon her by these threats and the fear of imprisonment for her brother.

Now it is contended that if the criminal prosecution was not conducted, these parties, both of them, are guilty of a criminal act in suppressing a criminal prosecution.'

But this rule applies only where the parties act under a free will. There is no parum delictum where this is not true. We have already found that she did not act under a free will. Not acting under a free will, but under compulsion, "how can there be a guilty act on her part? And if she is not guilty of committing a crime, none can be imputed to her in this matter, and, therefore, not being guilty of a crime, she may avail herself of the defense of duress.

I may say I have found a large number of cases cited in the brief where this doctrine is stated: That a party who acts under compulsion and makes a contract where the ease results in being dropped, the party does not stand in parum delictum with the other parties.

She may, then, in this action, have whatever affirmative relief she is entitled to, and as against the plaintiff, the State Building & Loan Company, and, as against the Olmsteds, she is entitled to have this mortgage canceled, it being not void, but only voidable.

Furthermore, we think she is entitled, and we so hold in this case and the decree may be so drawn, that the Olmsteds, by means of fraud and duress practiced upon her, are the principals in this debt and she is the surety.

There is one other matter that the court ought to speak of. As we may be called upon to make findings of fact, we ought to state the father’s interest in the property; The testimony is all one way upon this matter, and that is, that the daughter bought' this lot and paid for it. The title was taken in her name, with an agreement with her parents, that she would help to raise the money to pay for it and build a house and her father would help by contributing his work, he being a carpenter, and he would do all he could; a house should be erected on the lot, and it should be the home or place of residence for the father and mother while they lived, and, after their death, the property and the possession thereof should be in Mrs. Baker.

It is claimed that that can not give to the father a life estate, because of certain relations between them as to their both living there and both having a home there; and that she can turn him out. We do not believe that she can, turn her father out of that home, under that contract. We think that he has for a valuable consideration obtained an interest in that property, and that this interest is an interest that equity will recognize as an interest in the property, or that it is, a life estate. There being no deed to him for life, it is a strong equity at least, one that he could enforce, not only against her, but against any one that acquired an interest in the property with notice of his rights.

Now, as to notice of his rights. lie lived there; Mrs. Baker lived there; she went away to school early in the morning, but she was there every Sunday, and the father and mother lived there. And yet it is claimed that the way in which they lived, would be notice to no one.

Now, the mere fact of his living there is notice that he is living on the property in some way, under some claim, or with his daughter, however it may be. But there is enough, in our judgment, to put any one who knows that much, upon inquiry as to his rights; and whatever that inquiry may devolop, the parties must be charged as knowing. This is an old rule in equity; and the bank, therefore, and the Olmsteds must be charged with knowing his rights there as. fully as Mrs. Baker knew them. That being true, we think he has a right in that property that can be protected as against the mortgage.


source: Caselaw Access Project

license: Public Domain

text:
    NO DISCRETION IN AN APPOINTING OFFICER. UNDER. THE CIVIL SERVICE.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel Charles F. Coolidge, v. H. H. Hyman, as Director of the Fire Department of the City of Cleveland.
    Decided, March 23, 1900.

      Municipal Employees — Civil Service Examinations — Appointing Officer Bound by Civil Service Laws and Regulations — Courts Will Not Interfere With Civil Service Examination, When.

    1. When an officer is required by law to appoint and promote city employees from a list of those who have attained a certain grade in competitive civil service examinations, he can not, in the exercise of his discretion, promote one who has failed to attain the prescribed grade, even though it be by the fraction of one per cent, and there are special reasons why he believed that one will be more efficient in the position to which he desires to promote him.
    2. While rules governing the conduct of civil service examinations, as established by the city council and the examiners, should enumerate the subjects upon which applicants are to be examined, yet a failure so to do will not be ground for interference on the part of the courts where it appears that the examinations, as conducted, were upon the subjects upon which it would be necessary for the appointees to have knowledge.

      A. Btirt Thompson, for plaintiff,

      T. H. Hogsett and Beacom, Excell c(? Gage, contra.
    Caldwell, J.; Marvin, J., and Hale, J., concur.
   The statute provides that the mayor and the director of the fire department in the city of Cleveland shall draw up certain regulations governing the introduction of men into the fire department and their promotion from time to time in order to conduct examinations both for entering and for promotion; and it provides that an assistant engineer or fireman can not be promoted to that of an engineer when promotions are to be made, unless he has stood 80% in his examination for promotion.

The relator here, Ooolidge, was promoted when he stood a fraction of one per cent, less than that.

There was another man on the list at the time who stood 83%, but was not promoted.

The director of the fire department at the time of this promotion was made, claims that there is a discretion, after all, on his part, and that he could take this man and promote him, although there was another whose per cent, upon examination was higher, and the grounds for so claiming, is that in making promotions, notwithstanding examination, the director must look to the age, the judgment, the manhood, and all such things, to guide him in all his promotions.

But, most clearly, if he would have a right to take a man who stood less than 80% and promote him when there were others on the list standing more than 80%, he might carry that to a great extreme upon Ms ideas of judgment of men. He might take one who stood only 60% and yet, in his judgment, was the best man for the promotion.

These regulations are adopted under provisions of state law under an ordinance, and that ordinance, we think, must be followed. It is turning this department, among others of the city, into a civil service department, and the provision of the ordinance and the law seems to be such that no one can get into the department except by starting at the foot of the ladder and climbing towards the top, and promotions are to be made strictly upon merit and not upon favoritism.

Mr. Coolidge, after there was a change of directorship, was put back as fireman or assistant engineer and brings this action to require the director to restore him to the position of engineer.

There is another complaint made — that the rules and regulations which are adopted by the director and the mayor, and approved by the council, do not prescribe any sufficient rules and regulations governing the examination; that while they provide somewhat in detail and quite specifically as to the cadets, those who are coming into the department, yet there is no sufficient regulation as to the method of examination as to how and upon what branches it shall be conducted when a promotion is sought.

The rules are quite specific as to what the candidate is to do to get his name before the examining board, and they are quite specific as to the board holding the examination, and all steps except, it is claimed, that there is a very serious defect in that the rules prescribe no branches nor line of examination, and that the board would be at liberty, so far as any rule adopted by the city would stand in the way, to examine him on Greek or any other language, or any branch of mathematics, or on anything that they might take a notion to examine upon. Of course, if the city examiners should hold an examination of that character, it would be very much contrary to people’s notions of what an engineer needs; above all things, he needs a practical education.

The questions and answers that have been used in order to make these examinations uniform and fair, were presented to the court and have been examined, and they pertain entirely to the practical knowledge that a man has of the position that he is seeking to obtain. There is nothing else in them; and they are well adapted to call forth all that an applicant knows on that subject. There is, however, some ground for the technical objection, and it may be that this board should proceed hereafter to indicate on just what subjects applicants will be examined; for instance, engines, pumps and the practical care of them, and remedy for any defects that may arise at any time; the use of heaters, signals, and all those things that pertain directly to the line of business; and to prescribe in the rules that the examination shall be confined to them. They have been confined there always, as the evidence shows, but the rule, perhaps, should be made definite upon that point.

But we do not feel that in this case, we ought to say for this reason that this party should be restored to the place which he had before. He had subjected himself to these rules and regulations, has undertaken to take his place in line of promotion by the rules that exist; and for us to undertake now to say that the board, the director, the mayor, and the city council have not made rules definite enough, might, perhaps, do in this department considerable injury and cause a great deal of trouble. We affirm the judgment of the board, and dismiss the petition.


text:
    COSTS OF GUARDIANSHIP ALL SADDLED ON ONE WARD.
    Circuit Court of Cuyahoga County.
    Catherine Wickendraeger v. John C. Hemmeter.
    Decided, December 3, 1900.

      Guardian and Ward — When Action may he Brought for Error in Final Account.

    Where a guardian is appointed to administer a fund in which two minor wards have an equal interest, and in the final account of such guardian it appears that one of the wards has been paid her half of the fund in full while all the costs of the guardianship were deducted from the share of the other ward, such manifest error and mistake as to the second ward is shown as to give him the right to bring an action under favor of Section 6289, Revised Statutes.

      Won. H. Beavis and S. H. Johnson, for plaintiff.

      Finney & Klingmom, contra.
    Marvin, J.; Caldwell, J., and Hale, J., concur.
    This is an appeal from the judgment of the court of common pleas. The facts are that the defendant was guardian of the estate, by the appointment of the Probate Court of Cuyahoga County, of the plaintiff and her older sister, Charlotte Wickendraeger. This guardianship began on the 13th day of April, 1882, and continued until the plaintiff arrived at full age on the 18th day of July, 1896. In 1897 the plaintiff filed in the probate court his final account of such guardianship, the account for the two wards being filed as one account. This account showed the balance in his hands for this plaintiff was $345.55, and that the other ward had received payment in full of the amount to which she was entitled. No exceptions were filed to the account, and the same was approved by the probate court No appeal was taken, but on the 30th day of Juno, 1898, such date being within two years of the time when the plaintiff arrived at full age, she brought this suit under favor of Section 6289 of the Revised Statutes of Ohio. This section provides that:

      ‘ ‘ The settlement made in the probate court of the accounts of a guardian shall be final between him and his ward unless an appeal be taken therefrom to the court of common pleas in the manner provided by law, saving, however, to subsequent guardians during the minority of his ward, or to any such ward, at any time within two years after such ward shall arrive at full age, the right of opening and reviewing such settlements for fraud or manifest mistake, by civil action in the court of common pleas of the county in which such settlement was made, or the county where such former guardian may reside when the petition is filed, at the option of the plaintiff in such action.”
   The petition avers that “there is manifest error and mistake in said guardian’s final account in that he has retained $250 from the amount due the plaintiff, for his services in his said trust,” and “that there is manifest' error and mistake in the plaintiff’s deducting his fees entirely from the moneys remaining in his hands after the satisfaction of said Charlotte Wickendraeger’s half of said legacy when she became of full age.” Other matters in the final account, as well as in partial accounts previously filed by the guardian, are averred in the petition as being manifest errors and mistakes.

When the guardianship commenced there was placed in the hands of the guardian, the sum of one thousand dollars belonging to the two wards in equal shares, the same being a legacy bequeathed to them.

Upon hearing it is urged that under the statute above named, if it be found by the court that there are manifest mistakes in any account filed by the guardian, the entire account may be inquired into and all mistakes corrected, whether the same be manifest or not. In short, that the court should, on such hearing, pass upon the accounts of the guardian as fully and completely as though the same had come into court by appeal from the judgment of the probate court.

It is further urged that there are in the accounts of this guardian, mistakes which are “manifest” and other errors in the accounts. It is said that the amount allowed to the guardian as compensation for his services was in excess of the amount which should have been allowed, and that payment for such services was made to him by the mother of these two wards which was to be accepted as full compensation for such services.

It would seem that the intention of the Legislature in the enactment of the statute, was to provide only for the correction of accounts where no fraud is charged, to the extent that errors or mistakes are “manifest;” that is, they must be such as an examination of the account itself discloses, and unless the accounts filed by this defendant as such guardian, disclose some error or mistake, the petition in this action must be dismissed.

We are of the opinion, however, that there is manifest error in the accounts in this: that the guardian kept the accounts of these two wards as a joint account, charging himself for the two jointly with the one thousand dollars which first came into his hands for the two, then with the interest which was received on this money jointly for the two and crediting himself as against the two jointly for all payments made on account of such guardianship and for his services in the performance of his duties as guardian. There can be no doubt that the proper way to have kept his accounts would have been to have charged himself on account of each ward with the sum of five hundred dollars, and then to have taken to himself credit as against each for the payments made and services rendered on behalf of each.

The final account as rendered by the guardian made claim for the credit of $340 for his services as such guardian; of this amount he had been previously allowed the sum of $80.80, so that there was taken out of the funds in his hands as shown by his final account, at that time the sum of $259.20. On the 5th day of December, 1894, the guardian had paid to Charlotte Wickendraeger the sum of $500, she having, at that time, arrived at full age; and this was paid to her as a complete settlement of all to which she was entitled. For this payment the guardian in his final account takes credit, the practical result of which is that the $259.20 allowed in the final account as compensation for the guardian is all taken from the money which would otherwise have been payable to this plaintiff. This error is manifest on the face of the account, and a correction of this manifest error should be made and is made here,

The true account of this ward is found by charging to the guardian upon his first account the sum of $500 of principal and one-half of the two payments of interest made to him upon the filing of his first account, making the full amount to be charged to him on account of this ward at the time when his first account was filed, $550, and crediting him at the date of such amount with $50 paid for the support of the ward.

For the second account the principal is again $500, and one-half of the interest which he charges himself with having received for the two wards is $60, giving him in this account credit for one-half of the payments made by him for the two, the amount of $64.25; this leaves a true balance in his hands of $495.75. Pursuing this course with each of the accounts, it will be found that upon the filing of his final account there would have been due to Catherine, but for the payment of $250 which he had previously paid to her and $17.54, another payment which he had made to her, and $10.99 which he had deposited with the probate court on her account and the allowance of $129.60, being one-half of the $259.20 allowed for services in said final account, the sum of $509.91, deducting from this sum these several payments, to-wit, $250 plus $17.54, plus $10 and said sum of $120.60, there remains due to the plaintiff from the defendant, the sum of $101.76, with interest from the 29th day of September, 1897, when such final account was filed, and for such last-named sum, judgment will be entered for the plaintiff, together with the costs.


author: Chittenden, J.

text:
    AS TO THE PURCHASE OF BONDS OF A MUNICIPALITY BY ITS SINKING FUND TRUSTEES.
    Court of Appeals for Cuyahoga County.
    City of Cleveland, by John N. Stockwell, Director of Law, v. Baker et al.
    Decided, December 17, 1914.

      Municipal Corporations — Bonds Purchased by Sinking Fund Trustees Are Not Retired — But, Like Other Securities, Become Assets in the Hands of Said Trustees — Bonds May be Sold by Them Below Par, When — Where an Act is Legal its Motive is Immaterial, When —Motion by Defendant for Judgment — Sections 3922 and 4514, et seq.

    1. A motion for judgment on the pleadings being made by the defendants, the defendants can not be helped by the denials in the answer or by affirmative allegations in the answer that are denied by the reply. ,

      2. Sections 3922 and 4514, General Code, evince an intention upon the part of the Legislature to encourage the investment of funds in the hands of the sinking fund trustees, or commission in the bonds of that municipality, and the purchase of- such bonds by the sinking fund trustees, or commission, does not in legal effect amount to a retirement of such bonds, but such bonds become assets in the hands of such trustees, or commission, the same as other securities purchased by them.
    3. Section 4517, General Code, confers full power upon the sinking fund trustees, or commission, to protect the credit of the municipality by giving them unlimited power to use the money and securities in their possession for the purpose, and such power is not limited by either Sections 3923, 3924 or 4522, General Code.
    4. Where an act proposed to be done is legal, the motive that prompts the act is not material.
    Heard on appeal.

      John N. Stockwell, Director of Law, and Albert H. Weed, for plaintiff.

      J. G. Hostetler, Assistant City Solicitor, and Henry, Fauver, McGrow & Thomsen, contra.
   Chittenden, J.

This cause was submitted on a motion made by the defendants for judgment in their favor upon the pleadings. The substance of the pleadings, so far as need be stated for the purposes of this opinion, is as follows: Newton D. Baker, Thomas Coughlin and William F. Thompson, as mayor, director of finance and president of the council, respectively, of the city of Cleveland, constitute the sinking fund commission of said city, and on the 22d day of October, 1914, said commission duly adopted the following resolution:

“Resolved, That for the purpose of accumulating funds to meet the obligations of the sinking fund, there be offered for sale bonds owned by the sinking fund commission, in the amount and of the description as follows:
“Five hundred thousand ($500,000) dollars 4% city of Cleveland electric light coupon bonds, issued September 4th, 1912, maturing April 1st, 1947,- and drawing interest from October 1st, 1914, and numbered from 50236 to 50735, both numbers inclusive.
“And be it further Resolved, That the assistant secretary be and he is hereby authorized and directed to write various bond brokers and banks situated in the state of Ohio, as follows :
‘ ‘ Sealed bids will be received at the office of the sinking fund commission, room 507, city hall, Cleveland, Ohio, until 12 o ’clock noon, eastern standard time, on Tuesday, October 27th, 1914, for the purchase of:
“Five hundred thousand ($500,000) dollars four (4) per cent, city of Cleveland electric light coupon bonds, issued September 4th, 1912, maturing April 1st, 1947, and drawing interest from October 1st, 1914.
“These bonds are owned by the sinking fund commission, Cleveland, Ohio, the principal and interest being payable at the American Exchange National Bank in New York City, interest payable semi-annually on April 1st and October 1st of each year.
“These bonds were purchased and paid for by the sinking fund commission on September 4th, 1912, and therefore are tax free in the state of Ohio.
_ “For the purpose of accumulating funds to meet the obligations of the sinking fund commission, Cleveland, Ohio, these bonds are being offered to the public. The validity of these bonds has been approved by the Supreme Court of the state of Ohio.
“A certified or cashier’s check drawn on some solvent bank, other than the one bidding, in the amount of 2% of the total amount bid for, and made payable to the order of the sinking fund commission, Cleveland, Ohio, must accompany each bid.
“The sinking fund commission reserves the right to accept any or reject all bids.
“Roll Call: Teas, Baker, Coughlin, Thompson. Nays, None.”

Pursuant to the terms of this resolution bids were solicited from various bond brokers and banks situated in the state of Ohio, by a circular letter, and on October 27, 1914, the bids of the prospective purchasers were opened, and it was found by the sinking fund commission that the joint bid of the defendants, Hlayden, Miller & Company, C. E. Denison & Company and Otis & Company, was the highest and best bid for the bonds, and thereupon on the same day the sinking fund commission made an order as follows:

“That the five hundred thousand dollar ($500,000) four (4) per cent, electric light coupon bonds be sold and the same be awarded to Hayden, Miller & Company, C. E. Denison & Company and Otis & Company, at their bid of four’hundred and eighty-nine thousand and fifty dollars ($489,050), plus accrued interest to the date of delivery.”

The plaintiffs allege that the bonds so ordered sold were originally acquired by the board of sinking fund trustees of the city of Cleveland, which was the predecessor of the sinking fund commission, on October 12, 1912, and'that since that date said bonds have been held by the sinking fund trustees and the sinking fund commission as an investment of its funds as provided by law. It is averred that the proposed sale is illegal and void for the following reasons:

First. That the sinking fund commission has no authority or power to sell any bonds of the city of Cleveland purchased by such commission for the reason that the purchase of the bonds of the city of Cleveland by the sinking fund commission is in legal effect a retirement of such bonds.
Second. That thirty days’ notice of the proposed sale by publication, as required by law, was not made.
Third. That the sinking fund commission exceeded its authority in attempting to authorize a sale of such bonds at a price less than their par value, to-wit, 97.81 per cent, of the par value.
Fourth. That the recitation in the resolution setting forth that the bonds were to be sold for the purpose of accumulating funds to meet the obligation of the sinking fund does not state the real purpose of the commission in offering the bonds for sale. It is alleged that the bonds are to be sold for the purpose of enabling the sinking fund commission to raise money to be used with other money in its possession for the purpose of, first, meeting such maturing obligations of the city of Cleveland as the sinking fund commission shall in the future determine to meet, and, second, to pay for such bonds of the city of Cleveland as the sinking fund commission shall in the future decide, to purchase.

It is1 alleged that if the proposed sale is made it will result in a loss to the sinking fund of the city of $10,950, and that the sale of the bonds at 97.81 cents on the dollar is in violation of the provisions of law with reference to the care and maintenance of the funds in the control of the commission, and further that such sale will tend to injure the good faith and credit of the city. Plaintiff asks that an injunction be granted restraining the defendants from consummating the sale and transfer of the bonds, and for a decree declaring the agreement to sell and transfer such bonds to be void and of no effect.

The defendants in their answers admit the allegations of the petition, in so far as they refer to the acquiring by the sinking fund commission of the bonds in question and the several steps taken by the sinking fund commission to effect a sale of the bonds, and admit the proposal to sell the bonds as set forth in the petition. They deny the other allegations set forth in the petition. It is further alleged in the answers that the bonds in question are to be sold to meet the obligations of the city of Cleveland, as set forth in the resolution of October 22, 1914; that the bonds were acquired by the sinking fund commission or its predecessor in office, on or about September 12, 1912, as an investment of the funds of the sinking fund commission, and that such bonds are non-taxable securities; that at the time they were purchased, to-wit, on September 12, 1912, four per cent, was a fair market rate for investments of this character, but that since the 1st day of August, 1914, the market value of said bonds, as well as of all securities, municipal, state and national, has materially declined. They allege that the bonds constitute one of the assets of the sinking fund commission in which its funds are invested, and that said commission proposes to sell the bonds at the highest price obtainable therefor. They aver that said bonds, under existing financial conditions, are worth as assets of the commission such amount, and such amount only, as they are proposed to be sold for under the order of sale of October 27, 1914. They allege that no loss whatever will be caused the city by reason of the sale of the bonds at the price proposed, but that any loss is due to the fact that the market, value of the bonds has depreciated by reason of financial disturbances incident to the war in Europe, which has generally decreased the market value of all securities. The defendants specifically deny that the bonds described are to be sold for any purpose other than that set forth in the resolution of October 22, 1914.

The plaintiff by reply denies that the market value of the bonds has materially declined; denies that the price at which the sinking fund commission proposes to sell said bonds is the highest price obtainable therefor; denies that the’ sale of the bonds is at the highest price obtainable therefor; and avers that if such bonds were sold as required by law, to the highest bidder, at open and public sale, after thirty days’ notice in at least two newspapers of general circulation in Cuyahoga county, setting forth the nature, amount, rate of interest and length of time the bonds have to run, the same would bring, a price equal to the face of said bonds and accrued interest thereon.

A motion for judgment on the pleadings being made by the defendants, the defendants can not be helped by the denials in the answer or by affirmative allegations in the answer that are denied by the reply.

Section 4514, General Code, requires the trustees of the sinking fund to invest the moneys received by them in bonds of the United States, the state of Ohio, or of any municipal corporation, school, township or county bonds, in such state, and to hold in reserve only such sums as may be needed to carry out the purposes of their trust.

Section 3922, General Code, directs that when a municipal corporation issues its bonds it shall first offer them at par and accrued interest to the trustees of the sinking fund, in their official capacity, and then it provides for offering them to certain other officials in case the trustees of the sinking fund decline to take them. The statutory duty thus placed upon the municipality to first offer its bonds to the trustees of the sinking fund indicates very clearly an intent upon the part of the Legislature to encourage the investment of the funds in the hands of the sinking fund trustees in the bonds of that municipality. It was by virtue of the two sections of the General Code just cited that the trustees of the sinking fund of the city of Cleveland came into the ownership and possession of the bonds in controversy.

Section 4517, General Code, requires the trustees of the sinking fund to have charge of and provide for the payment of all bonds issued by the corporation, the interest maturing thereon and the payment of all final judgments against the corporation, except in condemnation of property cases. This section imposes a clear and positive duty upon the trustees of the sinking fund to be prepared to pay the obligations of the municipality, whether arising out of a previous issue of bonds or by reason of a final judgment against the city. Upon the faithful performance of this duty by such trustees depends the financial credit of the city. The same section which imposes this duty further provides that “for the satisfaction of any obligation under their supervision, the trustees of the sinking fund may sell or use any of the securities or money in their possession.” This clause of Section 4517 confers a very broad power and discretion upon the trustees, a power and discretion that should be sufficiently broad to enable them to faithfully perform the duty imposed upon the trustees by the first clause of the same section.

It is not contended by the plaintiffs that tbe sinking fund commission is precluded from selling in good faith, without any restrictions, any of the securities of the sinking fund other than bonds issued by the municipality itself; but it is contended that bonds of the municipality held by the sinking fund commission can not be so sold. It is alleged in the petition and is said by counsel for plaintiff in argument that when the bonds of the city are purchased by the sinking fund commission, such purchase is in legal effect a retirement of such bonds. If this be true, it would follow that if the sinking fund commission invested its funds in no other securities than bonds issued by the municipality, it would have no assets that could be made available for the satisfaction of judgments or other obligations of the city under the supervision of the sinking fund commission. If bonds of the municipality that were purchased by the sinking fund trustees thereby became retired there would be no purpose in the issuing of the bonds at all, for the improvement for which they were issued might as well be paid for by an appropriation from the sinking fund in the first instance. This method of procedure would obviously preclude the accumulation of a sinking fund and defeat the entire purpose of establishing such fund. This is a situation that could not have failed to present itself to the minds of the Legislature in framing the law as it did. Of course, the purpose of establishing a sinking fund is inconsistent with the proposition that improvements might be paid for in the first instance by an appropriation from that fund. If the legal effect of purchasing the bonds of a municipality by its sinking fund commission, is to retire said bonds, then they should be canceled, for they would be the same as bonds that had never been issued and there is no statutory authority for the sinking fund commission to issue bonds of the municipality in the first instance. We therefore find that the purchase of the bonds of the municipality by its sinking fund trustees or commission does not in legal effect amount to a retirement of such bonds. Such bonds when purchased by the sinking fund com7 mission become assets in the hands of such commission the same as other securities purchased by it.

The only authority of the sinking fund trustees to issue bonds is conferred by Section 4520, General Code, which provides that for the purpose of refunding, renewing or extending the bonded debt at a lower rate of interest, or for certain other special purposes, the trustees may issue bonds of the corporation as provided in that section. It is provided by Section 4522, General Code, that such bonds issued by the trustees of the sinking fund “shall be sold as provided by law for the sale of bonds by a municipal corporation.” The provisions of law for the sale of bonds by a municipal corporation are found in Sections 3923, 3924 and 3926, General Code, which sections provide, in substance, that such bonds shall not be sold for less than their par value and that they shall be sold to the highest and best bidder after thirty days’ notice in two newspapers, etc., as set forth in those sections.

It is alleged in the petition and argued that the commission has no authority to sell such bonds for less than their par value. Plaintiff claims that the last clause of Section 3923, General Code, which reads, “in no case shall the bonds of the corporation be sold for less than their par value, nor shall such bonds when so held for the benefit of such sinking fund or debts, be sold, except when necessary to meet the requirements of such fund or debt,” precludes a sale by the commission at less than par. Let it be borne in mind that this clause — in fact, this section — is a part of Section 97 of the municipal code, passed in 1902 (96 O. L., 52), and relates to the issuing and selling of bonds by a municipality. The limitation that the bonds shall in no case be sold, for less than their par value plainly applies to and affects the initial issue and sale of bonds. It follows the provision that the municipality shall first offer the bonds to the trustees of the sinking fund and then to certain other officers (now Section 3922, General Code), and the provision that only after the refusal of all such officers to take the bonds shall they be advertised for public sale. The limitation that the bonds when held for the benefit of the sinking fund or debts shall not be sold except when necessary to meet the requirements of the fund or debts, seems to be distinct and apart from that which provides that the bonds-shall not be sold for less than their par value. The only limitation imposed when the bonds are held for the benefit of the sinking fund is that they shall not be sold except when necessary to meet the requirements of such fund or debt.

We are unable to find that Section 3923, General Code, controls or limits the power conferred upon the sinking fund trustees by Section 4517, General Code, to use or sell any of the securities in their possession for the satisfaction of any obligation under their supervision. It is entirely plain that Section 4522, General Code, is no limitation upon Section 4517, General Code, because, as already noted, that section is dealing only with the issuing of refunding bonds by the trustees. Sections 4517 and 4522, General Code, were Sections 110 and 115, respectively, of the municipal code. It is significant, we think, that Section 110 of the municipal code conferred upon the trustees of the sinking fund the apparently unlimited power to sell or use any of the securities or money in their possession for the satisfaction of any obligation under their supervision, and that Section 115 provided that in the issuing of refunding bonds they should be sold "as provided in Section 97 of this act,” being now amended so as to provide that they "shall be sold as provided by law for the sale of bonds by a municipal corporation.” The fact that in the same act a limitation was put upon the sale of refunding bonds issued by the trustees of the sinking fund and not upon the sale of other securities in their possession for the satisfaction of any obligation under their supervision, indicates that the Legislature intended that no limitation should be imposed in the latter case, and that they should have the fullest power to protect the credit of the city by the unlimited authority to use the money and securities in their possession for that purpose. The ease of City of Cincinnati et al v. Guckenberger, 60 Ohio St., 353, is not in conflict with this conclusion.

It follows from what has been said that the sinking fund commission is not required to publish notice of the sale of the bonds for thirty days as required by statute in the ease of the sale of bonds by a municipality, and that it is not precluded from selling the bonds at less than par.

It is said that this construction of the law would open the door to fraud; that if the city found it could not sell its bonds at par as required by law, they might be taken over by the sinking fund commission and by that commission sold below par. If such a state of facts could be shown to exist it would indicate fraud and an attempt to circumvent the provisions of the law providing for the sale of bonds by a municipality.

Every officer is expected and required to perform his official duties with integrity. Section 3923, General Code, reading, “only after the refusal of all such officers to take all or any of such bonds at par and interest, tona fide for and to be held for the benefit of such corporation, sinking fund or debt,” etc., is a declaration that the sinking fund commission must act in good faith for the benefit of the city sinking fund in the purchase of the municipal bonds.

If facts were alleged showing an attempt on the part of this city and its sinking fund commission to circumvent the law in respect to the sale of bonds by the city, the power of a court of equity might be invoked to prevent the consummation of such a sale. No such facts are alleged to exist in the case under consideration.

It is alleged and argued that the recitation in the resolution adopted by the sinking fund commission on October 22, that for the purpose of accumulating funds to meet the obligations of the sinking fund there be offered for sale bonds owned by the sinking fund commission, does not state the real purpose of the commission in offering the bonds for sale. It is further alleged that when the bonds are sold the sinking fund commission will use the funds, at least in part, for a different purpose. We scarcely need cite authorities to the effect that if the act proposed to be done is legal the motive which prompts the act is not material. We find that the sinking fund commission is empowered to sell its assets, to-wit, the bonds in question, for the purpose of meeting the obligations of the sinking fund as proposed. If, after obtaining the proceeds of this sale, it should attempt to make an unlawful use of the funds, it would then be the proper time to proceed to restrain a wrongful disposition of such funds.

The motion of the defendant is granted and a decree will be entered accordingly.

Petition dismissed.

Kinkade, J., and Richards, J., eoncnr.


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

text:
    DEMURRAGE ON CARS “BUNCHED” DURING A FLOOD.
    Court of Appeals for Hamilton County.
    The Joslin-Schmidt Company v. The Baltimore & Ohio Southwestern Railroad Company.

    Decided, February 28, 1916.

      Railways — Demurrage Not Recoverable — Where Gars, Constructively Delivered, Were Not in Fact Placed — Owing to the Delay and Confusion Caused by a Great Flood.

    Consignees who are bound under the “average agreement” rule for demurrage charges on cars constructively delivered, notwithstanding the “bunching” of such cars, are relieved therefrom where the bunching was not due to the act or neglect of some railroad company, but was wholly due to conditions prevailing during a great flood.

      David 8. Oliver, for plaintiff in error.

      Harmon, Colston, Goldsmith <& Hoadly, contra.

      Motion to require the Court of Appeals to certify its record overruled May 29, 1916.

   Jones (E. PI.), P. J.

In this action a petition in error is filed to reverse a judgment of the Superior Court of Cincinnati, in which court the ease was submitted, without pleadings or process, on an agreed statement of facts in accordance with the provisions of Section 11472 of the General Code of Ohio. Upon the agreed statement of facts the superior court being of the opinion that plaintiff below, the Baltimore & Ohio Southwestern Railroad Company, was entitled to recover, rendered judgment for plaintiff. The question presented to us, therefore, is purely one of law.

The railroad company by the proceeding below recovered a judgment against the Joslin-Schmidt Company for $364, with interest, such sum having been found by the court upon the agreed statement of facts to be due the railroad company for demurrage charges which were made by the railroad company against the consignee for failure to unload its cars within the prescribed time.

It appears that the railroad company had published in accordance with law a set of "Car Demurrage Rules,” a copy of which appears as "Exhibit A” attached to the agreed statement of facts. From these rules it appears that the railroad company in order to encourage the speedy unloading of cars offered to enter into an agreement with consignees by which they should receive credit for cars unloaded within twenty-four hours instead of using the forty-eight hours free time allowed under demurrage rules. Such an agreement had been entered into between the parties to this action, and a copy of same is attached to the agreed statement of facts as "Exhibit B.”

We now quote the following from the agreed statement of facts:

‘ ‘ Thereafter, during the months of April, May and June, 1913, there were shipped to the defendant, over the lines of the Chesapeake & Ohio Railroad Company, the Louisville & Nashville Railroad Company, and other railroad companies, various shipments of coal and other commodities; the dates of the shipment of the same, the dates of the arrival of the same at Cincinnati, the dates when the same were constructively placed in accordance with the terms of said tariff, the dates when the same were actually placed, and the dates when the same were released, will all appear by the tabular statement which is hereto attached, marked ‘Exhibit C,’ and made part hereof with the same force and effect as if the same were herein set out at length.
“The said cars were bunched in transit or at destination, and were delivered by plaintiff in accumulated numbers in excess of daily shipments, but the said bunching did not occur through any fault of any railroad, the same having been caused wholly by the conditions created by the flood of March, 1913, and the confusion and delay of traffic incident thereto and to the results thereof.”

By'paragraph 2 of section (b) of Rule 8 of said “Car Demurrage Rules” it is provided:

“2. Gars for unloading or reconsigning. When as the result of the act or neglect of any railroad, cars destined for one consignee, at one point, are bunched at originating point, in transit, or at destination, and delivered by this railroad in accumulated numbers in excess of daily shipments, the consignee shall be allowed such free time as he would have been entitled to had the cars been delivered in accordance with the daily rate of shipment. Claim to be presented to railroad company’s agent within 15 days. ’ ’

By virtue of this provision in the Car Demurrage Rules there would have been no liability for demurrage charges in this case, but by the provisions of the so-called “average agreement” entered into by these parties this exemption from demurrage was waived on the part of the Joslin-Sehmidt Company by the following language:

“(e) A shipper or receiver who elects to take advantage of this average agreement shall not be entitled to cancellation or refund of demurrage charges under Section A, paragraphs 1 and 3, or Section b of Rule 8.”

So it will be seen that if the “bunching of cars” in the yards at Ivorydale had been admittedly due to any act or neglect of any railroad company the Joslin-Sehmidt Company would be bound by the paragraph above quoted from the “average agreement” by which it waived any exemption from the provisions of the ear demurrage rules. But the cars for which demurrage is here claimed arrived in bunches at the rate sometimes of six or seven a day, and in many instances over. a month after they were billed or shipped. They came in without any reference to the order in which they were shipped, without any rule or regularity, and in numbers far in excess of the capacity of the private track used by the Joslin-Sehmidt Company for unloading.

This claim for demurrage, it might be added, is largely based upon the constructive placement rule, which will be found designated as “Rule 5” in the “Car Demurrage Rules,” and reads as follows:

“Bulb 5.
“Placing Cars for Unloading.
“(a) When delivery of cars consigned or ordered to any other than public-delivery tracks or to industrial interchange tracks can not be made on account of the act or neglect of the consignee, or the inability of the consignee to receive, delivery will be considered to have been made when the cars were tendered. The railroad company’s agent must give the consignee written notice of all cars he has been unable to deliver because of the condition of the private or interchange tracks, or because of other conditions attributable to consignee. This will be considered constructive placement.”

After careful examination of the rules and agreements binding these parties, which are above briefly referred to, we are of the opinion that there is an absence of any obligation -express or implied upon the Joslin-Schmidt Company to pay these demurrage charges. Paragraph 2 of Section (b) taken from Buie 8 of the Car Demurrage Buies, supra, is limited in its effect to bunching occasioned by the act or neglect of some railroad company; therefore it is only a situation thus created that can be affected by the express waiver contained in the “average agreement.” The agreed statement of facts herein expressly removes this case from the control of said provisions. The parties have stipulated, as shown above, that these cars were delivered “in accumulated numbers in excess of daily shipments, but the said bunching did not occur through any fault of any railroad, the same having been caused wholly by the conditions created by the flood of March, 1913, and the confusion and delay of traffic incident thereto and to the results thereof.” This is the only reference in the agreed statement of facts to the flood of 1913, and it is not expressly stated Éere that said flood was an “act of God”; but the stipulation that the delay and confusion and the bunching was caused wholly by the flood is equivalent to saying that it was caused by an agency over which the parties, nor any earthly power, had any control.

We think, therefore, that we are justified in holding upon the agreed statement of facts that the delays in shipment and the so-called bunching of the cars was an “act of God.” The flood of March, 1913, has been many times held to have been an "act of God, ’ ’ and in the absence of any stipulation that it was, we are inclined to think that courts in the Ohio and Miami valleys might take judicial notice to that effect. The delays through "act or neglect of any railroad” referred to in the Car Demurrage Rules are manifestly such delays for which a derelict company might be made to respond in damages. The delays which we are called upon to consider in this case are not such as they. Such delays as occurred from this flood are nowhere mentioned in the rules or in the accompanying agreement, and there is nothing to show that delays occasioned by an "act of God” were in contemplation of the parties. It would be a harsh rule which would relieve one party on account of "an act of God” and at the same time permit it to penalize the other on account of delay and damage resulting from the same cause.

For the reasons thus briefly stated the judgment will be reversed, and judgment entered here for plaintiff in error.

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


author: Per Curiam.

text:
    CONTEMPT PROCEEDINGS CAN NOT BE REVIEWED BY HABEAS CORPUS.
    Court of Appeals for Hamilton County.
    In re Application of Henry S. Rosenthal for Writ of Habeas Corpus.

    Decided, November 22, 1915.

      Contempt — Where Court Has Jurisdiction — Proceedings in Contempt Can Not he Reviewed by Habeas Corpus.

    Inasmuch as the Superior Court of Cincinnati had jurisdiction to try the case in which the petitioner herein was committed for contempt, its proceedings can not be reviewed by habeas corpus however irregular or erroneous they may have been.

      G. W. Balter, for Rosenthal.

      Hosea <& Knight, for Sheriff.

       Petition dismissed in the Supreme Court without opinion, at costs of Henry S. Rosenthal, February 15, 1916.

   Per Curiam.

The Superior Court of Cincinnati has jurisdiction to punish for contempt of court by inherent right and under Sections 12136 and 12137 of the General Code. It had jurisdiction to try the cause on hearing in which Rosenthal was committed for contempt of court. Whether testimony in that cause was properly being heard on the 5th and 6th days of November when it had previously been continued until the 12th of November raises a question merely as to the regularity and correctness of the proceedings. No matter how irregular and erroneous its proceedings may have been, they can not be reviewed by habeas corpus. A writ of error is the appropriate remedy. A writ of habeas corpus can not be used to perform the office of a writ of error. In re David Fusfield, David Ostend and Nathan Carl, 21 C.C.(N.S.), 62; Ex parte Shaw, 7 O. S., 81; Ex parte Van Hagen, 25 O. S., 426; McGorray v. Sutter, 80 O. S., 400.

The court of common pleas was without jurisdiction to entertain the habeas corpus proceedings in this case, and its judgment must therefore be reversed.