text:
    NEGLIGENCE IN CROSSING A STREET BEFORE AN APPROACHING CAR.
    Court of Appeals for Hamilton County.
    The Cincinnati Traction Company v. Otto W. Edwards, Administrator.
    Decided, June 14, 1915.

      Pedestrian Grossing Street — Struck by Gar Running at Excessive Speed —But which He Could Have Seen and Heard Had He Used His Faculties — Errors in Charge to Jury.

    1. If the decedent saw or heard the approaching car in front of which he stepped and was struck, or if he could have seen and heard it had he looked and listened as an ordinarily prudent person would have done under the circumstances, his own contributory negligence will defeat recovery, notwithstanding the defendant company was negligent in running the car at a high and dangerous rate of speed.
    2. It is prejudicial error for a trial judge to assume in his charge to the jury that the accident occurred at a given point, when there is uncertainty as to the point at which it occurred and the question should have been left to the jury to determine; or to say to the jury that the decedent had a right to assume the motorman would not approach the crossing in a negligent manner, when he could have seen had he used his eyes that the car was approaching at a very high rate of speed; or to fail to charge on the subject of contributory negligence when a request so to do had been made; or to charge on the doctrine of “last chance” when there was no evidence showing that the doctrine was applicable.

      George B. Warrington and Robert 8. Marx, for plaintiff in error.

      Fulford, Shook & Schwaab, contra.
    Gorman, J.: Jones (E. H.), P. J., and (Jones (Oliver B.), J., concur.
   The defendant in error as administrator of Sebnrn Edwards, deceased, brought an action in.the Superior Court, of Cincinnati. to recover damages resulting to the next of kin of Sebum. Edwards, deceased, on account of the alleged negligence oí the plaintiff in error which resulted in fatal injuries to decedent from which he died the day following the injuries. A verdict and judgment for $3,500 was.given in favor of the defendant in error, and this proceeding is here to reverse said judgment.

The facts of the case, as. disclosed by the record, necessary to be set out are substantially as follows:

On the night of November 9, 1911, at or about 9:30 o’clock, Edwards, the decedent, undertook to cross Erie avenue from the south to the north side thereof at or near the intersection of Shady Jane in Hyde Park. Erie avenue, running east and west, was and is eighty feet wide at this point and for a distance of several squares east and west of this point. The sidewalks on either side.of this street are ten feet wide. There was a double street car 'track on Erie avenue, the outer rails of which were eleven feet from either curb; the tracks between the rails were five feet in width; and .there was a roadway of twenty-eight feet between the east-bound and west-bound tracks.

At the time Edwards stepped from the south curb to cross to the north side of the street, a ear owned and operated by the plaintiff in error was approaching Shady lane from the east, and was about 1,000 feet east of Shady lane going west on the north side of Erie avenue at a great rate of speed, estimated by two witnesses at from twenty to twenty-five miles per hour. The lights in the car were all lighted, the headlight ivas burning, and the gong according to most of the witnesses was being rung continuously from Paxton road, a point 900 or 1,000 feet east of Shady lane, down to Shady lane. From Paxton road to Shady lane the grade is quite sharp towards the west. The testimony of some of the witnesses who observed Edwards crossing the street is that he staggered, walked zigzag or wobbled, and appeared to be intoxicated. One witness who observed him while crossing saw nothing peculiar in his gait. There was evidence tending to show that he ordinarily walked with a swaying motion or a perceptible swinging movement. There was evidence, tending tó show that he had been in the habit of drinking to excess at times and that his wife had secured a divorce from him about one year before, among other grounds on that of habitual intoxication, failure to provide and extreme cruelty.

There were no other vehicles on Erie avenue except this car for several squares east or west of Shady lane. There were no obstructions on the street to prevent any ordinary person, situated as Edwards was and possessing ordinary sight and hearing, from seeing and hearing this car.

Edwards was struck by this west bound car at some point west of the northwest corner of Erie avenue and Shady lane, variously estimated at from 15 feet to 100 feet, and the body was found at this point near the north gutter. When Liken up he was unconscious and was removed to the city hospital where he died the next day, from the effects of his injuries, without regaining consciousness, leaving two sons as his next of kin. The car that struck him ran a distance of about 100 feet before it was stopped.

All of the evidence as to the occurrence was offered by the plaintiff below. The defendant below did not offer the motorman or any other witness as to how Edwards was injured, but only offered two witnesses as to the earnings of Edwards during the year prior to his death. No one idding on the car saw the accident. The four witnesses who saw Edwards before and at about the time he was struck were all on the north side of Erie avenue east of Shady lane. One witness, Mr. Fening, was standing either on the northeast or northwest — probably the northwest — corner of Shady lane and Erie avenue, waiting to board the car and signaling it to stop, and did not see Edwards struck. The car passed him without stopping, and ran about 150 feet west of him before stopping. Edwards must have been struck west of the place where Fening was standing, and the car when it struck him was interposed between Edwards and this witness thus cutting off his view.

These four witnesses who saw Edwards before and just about the instant he was struck say that he Walked upon the track just in front of the car, one or two of them stating that just as the car.was. almost upon him he threw up his hands. They say that when he stepped upon the track the ear -was so near him that it was impossible to stop the car in time to avoid striking him because of the high rate of speed at which it was traveling.

The defendant, among other things, set up the plea’ of contributory negligence, and at the close of plaintiff’s evidence and again at the close of all the evidence moved the court to instruct the jury to return a verdict in its favor on the ground that the undisputed evidence showed that decedent came to his death by his contributory negligence.

These motions were overruled, and the principal error urged in this court is the failure of the trial court to grant said motions.

There are other errors urged such as gross excessiveness of the verdict, errors in the charge prejudicial to defendant, and the admission of hearsay, incompetent and immaterial evidence over defendant’s objection.

. Without undertaking to set out or analyze the testimony of the witnesses embraced in a voluminous hill of exceptions of 450 pages, we have come to the conclusion from a perusal- of the record that the evidence is such that there is a presumption that decedent came to his death by reason of his contributory negligence. There is no question hut that the defendant company was guilty of negligence in running its car at such a high and dangerous rate of speed at the time when and place where the injuries were inflicted on decedent; but it is quite clear that the decedent could not have failed to see and hear the rapidly approaching car for a considerable distance before he was struck, if he had looked or listened. It was his duty to use his faculties and ordinary care under the circumstances to avoid being injured. We think that upon the evidence adduced on behalf of the plaintiff it manifestly appears that the decedent was negligent in going upon the car track at the time and place shown, when by the exercise of ordinary care he would not have been injured. Whether his conduct was due to carelessness, intoxication or premeditation, we can not say, but it appears clearly to us that plaintiff below failed to remove the presumption raised by his evidence that the proximate cause of Edwards’ death was his contributory negligence. The burden was upon plaintiff to remove this presumption by evidence sufficient to establish the fact that Edwards’ own contributory negligence did not bring about his fatal injuries.

If Edwards saw and heard the car when he stepped upon the track in front of the rapidly moving car, he was guilty of such contributory negligence as precluded a recovery in this ease. If he did not see or hear the car when he could have seen or heard it had he looked and listened as an ordinarily prudent person would and should have done, then he.was guilty of contributory negligence and plaintiff should not recover. There was no evidence adduced that his eyesight or hearing was impaired, and the evidence clearly show's that an ordinarily prudent person whose sight and hearing -were unimpaired, situated as Edwards was at. the time and place the ear was approaching him just before he stepped upon the track could not have failed to see and hear the car and realize the danger of attempting to cross the track in the face of this fast moving car. Traction Co. v. Charles, 14 C.C.(N.S.), 506; affirmed without opinion, 87 O. S., 475.

As to the claim that the verdict was grossly excessive, we are not prepared to say that it was so if the plaintiff had a right to recover, although it is extremely doubtful if the evidence shows that his two sons would have benefitted in a pecuniary sense to the extent of $3,500 had Edwards’ life not been crushed out at the time and place of the accident. It is indeed a harsh, coldblooded rule which the law lays down in capitalizing the value of a man’s life to his next of kin, but there is no other rule known to the courts in determining what damages shall be awarded for the wrongful death of one to those who have a pecuniary interest in his life, except to ascertain and speculate, as it were, how much is that human being worth to his next of kin as a moneymaking machine, taking into consideration his age, health, habits, ability to earn money, how much he has earned, how' much he gave to his next of kin and the probabilities of his life, and such other facts as would enable a jury fo place a monetary value on his life to his children, his next of kin.

There were several errors in the general charge; for instance, the assumption by the court that Edwards was struck at a street crossing', whereas this was a question of fact to be submitted to the jury under proper instructions; the statement in the charge that Edwards had a right to act upon the assumption that the motorman would not be negligent in approaching the crossing, when the evidence showed that Edwards saw or could have seen without assumption that the car was running at a high and excessive rate of speed. He knew, or should have known if he had used his faculties, that he could not at the time and place rely bn any such assumption. Coal Co. v. Estievenard, 53 O. S., 43, 58; Wabash R. R. Co. v. Kiles, 64 O. S., 458.

The court failed to charge correctly on the question of contributory negligence which was pleaded, and although asked to charge upon this point by defendant’s counsel there was a failure to respond to the request. This we think was error.

The court charged on the doctrine of “last chance” when there was no evidence, as we read the record, showing a last chance case. In order to make out a case of last chance it must be made to appear that the party killed or injured was in a position of danger caused by his own neglect and from which he can not extricate himself, and that his condition and danger are known to the other party who neglects or fails to avoid injuring or killing the person in a dangerous situation. R. R. Co. v. McCormick, 69 O. S., 45; R. R. Co. v. Kassen, 49 O. S., 230; Davies v. Mann, 10 M. & W. (Eng.).

The court erred in the admission of the evidence of Mr. Conway, Edwards’ attorney, as to his opinions of Edwards’ habits.

All of these errors herein pointed out were, in our opinion, prejudicial to defendant below. We are,- therefore, of the opinion that because of these errors substantial justice was not done in this case, and that the judgment of the trial court should be reversed and the cause remanded for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    EXCEPTIONS TO REFUSAL TO CRANT NON-SUIT WAIVED BY INTRODUCING EVIDENCE.
    Circuit Court of Stark County.
    William Dannemiller, August Dannemiller and the City of Canton v. Annie Zimmerman and Jesse B. Miller.
    Decided, February, 1903.

      Pleading and Practice — Trials—Misjoinder Waived by Not Demurring Specially or Pleading it — Judgment Against Several Joint Defendants Treated as Entirety — Petition in Error Not Dismissed for Misjoinder of Parties Plaintiff, When — Exceptions to Refusal to Grant Non-Suit Waived by Introducing Evidence.

    1. Where a defendant files a general demurrer which is overruled, hut does not demur on the special ground of misjoinder of parties defendant and files an answer which does not raise the question of misjoinder, it is thereby waived.
    2. When a joint judgment was obtained against several defendants who were improperly joined, and upon an appeal or proceedings in error in a higher court it is determined that the judgment was improper as to one of them, it can not be affirmed as to one and reversed as to another but must he reversed as an entirety.
    3. A motion to dismiss a petition in error on the ground of misjoinder of parties plaintiff in error will be overruled where, had separate petitions in error been filed, a reversal as to one plaintiff in error would set aside the judgment as to all the plaintiffs in error.
    4. Where a doiendant, at the close of plaintiff’s evidence, moves to dismiss the complaint, and the motion being denied excepts to the ruling and then proceeds with the case and puts in evidence on his part, he thereby waives the exception.

      C. F. Meyer, for the Dannemillers.'

      D. (J. Hughes, City Solicitor, for city of Canton.

      Craine cC- Snyder tmd-Sterling & Brancher, contra.
    Winch, J. (sitting in place of Judge McCarthy); Voori-iees, J., and Donahue, J., concur.
   Annie Zimmerman brought her action in the Common Pleas Court of Stark County against Jesse B. Miller, William Dannemiller, August DanuemilJer, Edward Dannemiller, Julius Darmemiller and the city of Canton, defendants below, for damages sustained by her by reason of an injury which she claimed she received on January 7th, 1903, caused by her falling into a coal hole covered with an iron covering in the sidewalk on East Fifth street, between Market and Peadmont streets, in the city of Canton.

In her petition she alleges that the Dannemillers without any authority or without any right having been given by the city of Canton, built said coal hole in said sidewalk and maintained the same and used it for the purpose of putting coal into their cellar, they being the owners of the block adjacent to said sidewalk; that said coal hole was dangerous to persons traveling on said sidewalk, who were liable to fall into said coal hole unless the same was properly guarded by placing or keeping a safe covering over said coal hole; all of which was fully known to said Dannemillers on the day of said accident and ever since the construction of said coal hole; that the city qf Canton, on the day of ihe accident and for a number of years prior thereto, knew that said coal hole had been placed in said sidewalk; knew of the dangerous character of it; and that persons traveling on said sidewalk were liable to fall- into it unless the same was guarded by some safe and suitable covering, or by the exercise of ordinary care could have discovered the same; and that said city took no steps to abolish the same or to guard said hole or to see that said hole was properly and securely covered although said city knew or by the exercise of ordinary care could have known that unless the same was done, travelers upon said sidewalk might fall into said coal hole; that on the day of the accident, the defendant, Jesse B. Miller, removed the lid covering said coal hole and put a load of coal into it, after which he carelessly and negligently replaced said covering in such a manner that the same did not cover all of the coal bole and would tilt and allow persons who might step upon the same to fall into said coal hole; that on the day of the accident, the plaintiff, while walking upon said sidewalk, without any knowledge, of said coal hole or the manner in which the covering had been placed, without any fault or negligence upon her pari, stepped upon said covering, when the same tipped and allowed the plaintiff to fall into said coal hole; whereby she received severe personal injuries, for which she claimed damages against the defendants.

The defendant, Jesse B. Miller, filed an answer admitting that the defendants, Dannemillers, bad a certain coal hole constructed in front of their premises in the sidewalk covered with an iron covering, which they kept and maintained for their convenience for putting coal into their cellar; and that the city of Canton had knowledge of the existence of said cellar, coal hole and covering; that he did not know whether said covering of said hole was properly constructed or not and did not know whether or not the same was dangerous to pedestrians and therefore denies that it was not properly and safely constructed and that it was dangerous to pedestrians; he admitted that on the day of the injuries complained of he removed said covering and delivered a load of coal therein for anil at the request of the defendants, the Dannemillers; but denied that he carelessly and negligently replaced the said covering; and denying all other allegations of 1he, petition, he affirmed that if the plaintiff received any injury, such injury ivas not caused by any fault or negligence of his, hut was caused by the negligence of others and that the plaintiff herself was guilty of contributory negligence.

To this answer of Jesse B. Miller a reply was filed by plaintiff denying that she was in any maimer guilty of contributory negligence.

William Dannemiller and August Dannemiller were the only ones of the four Dauneiniilers who were served with summons and they answered, admitting the existence of the coal hole, its covering and the purpose for which it was used; hut denied that the same was built without authority from said city, but on the contrary affirmed that they were fully authorized by the city 1o build and maintain the same. They further denied that the coal vault was dangerous to travelers upon the sidewalk or that persons were liable to fall into said coal hole or that the same was not properly guarded. On the contrary they allege proper construction of the same and of the covering; that it was in proper repair and perfect condition on the day of the injuries complained of and in no wise, dangerous io persons walking on the sidewalk; and that on the said day they exercised extreme care and diligence in keeping the same perfectly safe. They deny that the plaintiff was injured as stated in her petition, or suffered damages in any sum and affirmed that if she did it was not from their want of care but from her own negligence. To this answer the plaintiff filed a reply denying the allegations of said answer, and that the plaintiff was injured from her own negligence.

The city of Canton filed an answer to the petition alleging that said coal hole ivas properly «instructed and so placed and located as not to be an obstruction of said sidewalk and that it was not dangerous or unsafe; that on the day of .the injuries said coal hole ivas substantially level with the balance of the sidewalk and covered with a proper iron covering: that if the plaintiff was injured it was not the fault of the defendant, hut because of the fault and negligence of other persons independent of the city of Canton or its officers or agents, and without any knowledge or notice to the city of Canton, or because of the plaintiff’s own negligence.

To this answer the plaintiff replied, denying that her injuries were in any manner or degree caused by her own negligence.

Previous to filing its answer the city of Canton had demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action against the city, which demurrer was overruled.

• The case was tried to a jury which returned a verdict in favor of the plaintiff in the sum of $900 against the defendants, William Dannemiller and August Dannemiller and the city of Canton, on which verdict judgment was rendered against them.

A petition in error was filed in this court on June 11, 1902, together with a hill of exceptions and" transcript of the' docket and journal entries.

According to said transcript it appears that said judgment was rendered on February 14th, 1902, and a motion for a new trial filed by the city on February 18th, 1902, and on the same day similar motion by 1be Damiemillers, both of which motions were overruled on the 4th day oí hlarch, 1902, and said defendants allowed fifty days in which to prepare, their hill of. exceplions; and that said bill of exceptions was allowed and filed on the 18th day of April, 1902. Petition in error was filed in this court June 13, 1902. In this court, the defendant, Annie Zimmerman, has filed a petition to strike from the record the bill of exceptions for the reason that the same was not allowed and signed by the trial judge within the time provided for by law and was not filed by the clerk of the court and made a part of the record in the time allowed by law. This motion calls attention to the fact that it appears by the transcript that the motion for a new trial was not filed until four days after the rendition of the judgment, and that for this reason the court below did not have jurisdiction over said motion and therefore the bill of exceptions should be stricken from the files. The plaintiffs in error, suggesting a diminution of the record, have been permitted to file a new transcript, showing that as a matter of fact the verdict and judgment were on February 15, 1902, and the motion for a newr trial on February 18, 1902, thereafter was within three days but it is objected by the defendants in error that the time limited, by the statutes, for the filing of a transcript, to-wit, four months from the date of the overruling of the motion for a new trial, lias gone by and that plaintiffs in error should not be permitted to file the same. We are referred to the cases found in 59 O. S., 221, and 18 C. C., 335, which appear to be decisive of this point; but reserving to the defendants in error their exceptions in order that they may have the benefit of them should the c§se go to the Supreme Court, we have overruled the motion and will consider the bill o f exceptions before us.

The defendant in error, Annie Zimmerman, has filed a motion to strike off the petition in error and dismiss the same for the reason that there, is a misjoinder of plaintiffs in error. The plaintiffs in error', or the two Dannemillers, owners of the building and coal vault, charged with negligence in maintaining the coal vault improperly covered, and the city of Canton, charged wdth negligence in knowingly permitting an improperly constructed and unsafe coal hole to remain in the sidewalk of a much traveled public street, are joined as plaintiffs in error, and to sustain this motion wre are referred to the case in 61 O. S., 394, the second paragraph of the syllabus of which reads as follows:

'“Separate judgments rendered against separate parties on separate causes of action, though rendered in favor of the same party, in a proceeding involving priority of right between par-' ties in the distribution of a fund, give rise to separate rights to prosecute error, and the parties against whom such separate judgments are rendered can not unite in prosecuting error; there is in such cases a misjoinder of parties plaintiff.”

And it is contended that although a joint judgment is based upon concurrent and related torts; that said torts are not joint, as held in the case of Morris v. Woodburn, 57 O. S., 335, and that therefore the rights of the plaintiffs in error are to prosecute several and not joint proceedings in error. In other words, the defendant in error, Annie Zimmerman, says that she had no right to recover in the common pleas court a joint judgment against the city and the Dannemillers but having recovered the same the plaintiffs in error have not a joint right to prosecute error thereon. She says, however, that the reason her joint judgment is good is because the demurrer filed by the city of Canton was general and did not specify either the sixth or seventh grounds of demurrer mentioned in Section 5062 of the Revised Statutes; that is, that several causes of action are improperly joined or that separate causes of action against several defendants are improperly joined, and having failed to demur on these special grounds, and having failed to answer setting up said grounds as a defense, the objections are waived, as provided in Section 5064, Revised Statutes. The sixth circuit court has so held in the case of Beechery v. Booth, 9 C. C., 469, and we follow that ruling.

The court stated in the case in 61 O. S., 394. that it had no doubt where the title is common and all must prevail or noue, all may unite in the proceeding for a review of an adverse judgment. It would seem in view of the rendition of the joint judgment in this case, that the plaintiffs in error may unite in a petition or error since all the plaintiffs in error must prevail or none upon such proceeding, and it does not appear that the joinder affects any substantial right of the defendants in error. While the authorities are conflicting as to the union of interest where an original action is brought upon a-joint judgment which may be void as to one party and good or only voidable as to another, Black, in his Treatise on Judgments, Section 211, says:

‘ ‘ When we inquire as to the probable disposition to be made of the joint judgment against severa] defendants, which is void as to one of them, when it is brought, before a court of review by writ of error or appeal, wc find the authorities more nearly harmonious. In general they agree that it can not be affirmed as to one defendant and reversed as to another, but must be reversed as an entirety.”

Taking this view of the case, had separate petitions in error beesi filed by the city of Canton and the Dannemillers, should the judgment be found erroneous under the allegations of- either petition in error, the entire judgment against all the defendants below would have to be. set aside. This view of it seems to be sTistained by the Supreme Court of this state in the case in 24 O. S., 625.

The- motion to dismiss the petition in error for misjoinder of parties plaintiff in ei’ror is therefore overruled.

We come now to an examination of the merits of the ease and the errors complained of in the petition in error, as exhibited by the bill of exceptions.

At the hearing no error in the charge ivas insisted upon, and wre think the charge fair and in accordance with the law of the case as presented to the court.

The city of Canton, however, complains that the court below erred in overruling its motion for a non-suit at the close of the plaintiff’s testimony; that said testimony did not show that the city had either actual or constructive knowledge of the condition of the coal hole and that said coal hole was not a nuisance per se. The record show's, however, that after the overruling of said motion testimony was introduced tending to show the knowledge of the city of the dangerous construction and condition of the coal hole. Such being the case the authorities all agree that a verdict will not be set aside because a non-suit was denied.

“Where a defendant, at- the close of plaintiff’s evidence, moves to dismiss the complaint, and the motion being denied, excepts to the ruling and then proceeds with the ease and puts in evidence on his part, he thereby waives the exception.” Hopkins v. Clark, 158 N. Y., 299; Jackson, v. Leggett, 7 Wend., 377; Berton v. Kane, 17 Wisc., 37; Perkins v. Thornburgh, 10 Cal., 189, Oakes v. Thornton, 28 N. H., 44; U. P. Ry. Co. v. Daniels, 152 U. S., 684.

Judgment is affirmed.


text:
    WHEN A BUYER IS THE SOLE JUDGE AS TO WHETHER THE THING BOUGHT IS “SATISFACTORY.”
    Circuit Court of Stark County.
    Narcissa C. Clewell v. Toledo Metal Sign & Advertising Company.

    Decided, March, 1903.

      Contracts — Words and Phrases — “Satisfactory” Defined.

    Where it is agreed that the subject-matter of a contract shall be “satisfactory” to the purchaser, if the subject-matter of the contract is such that the satisfaction stipulated for must be held to apply to quality, workmanship, salability and other like considerations, rather than to personal satisfaction, as in the painting of a portrait, an agreement that it shall be satisfactory means that it shall be reasonably satisfactory; but if the subject of the contract, such as one to paint a pastel portrait, involves personal taste or feeling, an agreement that it be satisfactory to the buyer necessarily makes him the sole judge whether it answers that condition.
    Wincii, J. (sitting in place of Judge McCarthy) ; Voorttegs, J., and Donahue, J., concur.

       Affirmed without opinion, Clewell v. Toledo Metal Sign & Advertising Co., 71 Ohio State, 471.

   In the court below the Toledo Metal Sign & Advertising Company brought suit against Narcissa O. Clewell to recover on a contract, by the terms of which the plaintiff agreed with the defendant, in substance, to manufacture for said defendant certain dies for stamped copper medallions for an agreed price, which amount was to be due and payable on receipt of satisfactory proof of said dies in copper. The written order also provided for the making from these dies, medalLions and signs, the amount whereof to be determined by the defendant: and alleges that pursuant to the contract the dies were made and accepted by the defendant, and that she ordered medallions, which were furnished her.

The defendant controverted this and set up in her answer and evidence was introduced at the trial tending to prove that these dies, or some of them, were not satisfactory. It will he noticed that the word “satisfactory” is used with reference to the dies from which the medallions were made, and that there was no such condition in the contract with regard to the medallions which were to he made from the dies and furnished pursuant to the contract, and pursuant to further orders from the defendant to furnish them.

In this -court it is complained that the charge of the court on the points of law involved, particularly turning on the meaning and application of the word “satisfactory” as used in the contract, was erroneous, first in failure to give the fourth request of defendant below, to charge, and secondly, as to the use and application of the word, “satisfactory”' in the charge as given.

From examination of the charge we think that the fourth request is substantially covered in the charge as given. Now, was the charge according to the law of .the case? In determining this question two points arise, there being two lines of authorities. Did the subject of the contract involve personal taste or feeling? Or, second, did the use of the word “satisfactory” in the contract apply to quality, workmanship, saleability, and other like considerations?

The distinction in the two classes of cases is well put in the 21st Rhode Island, page 65, the last two paragraphs of the syllabus of which read as follows:

“If the subject-matter of the, contract is such that the satisfaction stipulated for must be held to apply to quality, workmanship, saleability and other like considerations, rather than to personal satisfaction, as in a contract for the painting of a portrait, an agreement that it shall be satisfactory means that it shall be reasonably satisfactory. If the subject of the contract, such as one to paint a pastel portrait, involves personal taste-or feeling, an agreement that it shall be satisfactory to the.buyer necessarily makes him the sole - judge whether it answers that condition. ’ ’

And in the case of Wood Reaping & Mowing Machine Company v.----, 50 Mich. 565, on page 566 of the opinion the court says:

“Tn the one class the right of decision is completely reserved to the purchaser without being liable, to disclose reasons or account for his course, and the right to inquire into the grounds for his action, and overhaul his determination is absolutely excluded from the promisee and. from all tribunals. It is sufficient for the result that he willed it.
“The law regards the parties as competent to contract in that manner, and if the facts are sufficient to show that he did so, their stipulation is the law of the case. The promisee is excluded from setting up any claim for remuneration, and is likewise debarred from questioning the grounds of decision on the part of the promisor, or the fitness or propriety of the decision itself. The cases of this class are generally such as involve the feelings, taste or sensibility of the promisor, and not those gross considerations of operative fitness or mechanical utility which are capable of being seen and appreciated by others.
“Tn the other class of cases the promisor is supposed to undertake that he will act reasonably and fairly, and found his determination on grounds that are just and sensible, and from thence springs a necessary implication (hat bis decision of eorrectness and the adequacy of the grounds of it are open for consideration, and subject to, the judgment of judicial triers.”

To the same effect is the case of Duplex Safety Boiler Company v. Garden et al, in 101 N. Y., 279. The same ease is reported in 55 American Reports, 709, where there is an extended note, collating all the authorities on this subject; and on that account no further authorities will be cited in this opinion.

Now, it seems to us that as to the dies to be made the first line of authorities should be applied; and as to the medallions manufactured from the dies, the second line of authorities could fairly be applied, or the rule arising from them, or pointed out in them.

So we have examined the charge of the court with reference to both of these points, and we feel that the charge is not open to criticism in either respect.

There is this trouble with the charge, however (the court has had much difficulty with the case owing to the fact that the evidence was not all before ns, the bill of exceptions consisting of the charge of the court with an agreement as to what the evidence tended to show), the court having charged the first rule as to the dies, charged next the second rule as to the medallions; and coming to the consideration of damages, there being a counter-claim in the case, there is to one not having all the evidence before him an apparent inconsistency-: but after an inspection in the case we feel that- the jury was not misled in the case in any respect by the involved condition of the charge; and by examination of the verdict, and the amounts claimed by the plaintiff and the defendant, we find that the jury could not have been misled, but they must have applied both rules The claim of the plaintiff was for $579.55 and interest. The counter-claim was $211.95 for the defendant and interest, the difference being $368.60. Now, the verdict is for $349.19; deducting the interest which was figured in by the jury, would leave it $285; an apparent difference of $143.60 allowed the defendant; which we think was allow-'ed because the jury found that one of the dies about which there seems to be particular dispute was not satisfactory to the defendant, and that she was the sole judge whether it was satisfactory or not.

The judgment is therefore affirmed.


text:
    ACTION BARRED AGAINST A CLAIM AGAINST A DECEDENT’S ESTATE FOR. SERVICES.
    Circuit Court of Stark County.
    Elizabeth Cooper v. Clara E. Boory, Administratrix.
    Decided, February, 1903.

      Statute, of Limitations — Statute in Force when Action Accrues Prevails — When Actions Accrue..

    1. The statute of limitations which is in force at the date when the cause of action accrues must be applied.
    2. A cause of action does not accrue until the claim or right upon which it is founded has matured, so that an action can be brought upon it.

      3. Where an action is based upon the promise of a decedent, that plaintiff should be paid for services from his (decedent’s) estate, the ac-. tion is barred by the lapse of more than two years between the qualification of the administratrix and bringing of the action even though ihe statute of limitation at the time the promise was made was four years.
    Winch, J.(orally), (sitting in place of Judge McCarthy); Voobtiees, J., and Donahue, J., concur.
   Elizabeth Cooper brought her action in the Common Pleas Court of Stark County against Clara E. Boory, administratrix of the estate of ITenry Boory, deceased, and in the petition says, “that there is due her from the defendant as administratrix the sum of $780 for work and labor performed by the plaintiff for the decedent during liis lifetime, at cooking, washing, ironing, sewing, mending, nursing and doing general housework, and looking after and caring for the home and household pf the decedent generally, for six years last preceding May 31, 1899, and the statement of services rendered and the amount asked therefor, is here attached marked Exhibit ‘A.’ and made a part hereof. That said decedent during his lifetime subsequent thereto and prior to his death, the exact dates plaintiff being unable t'o state, verbally promised and agreed with the plaintiff that if she would continue to live with him, look after the household and perform work and labor above set forth, she should after his death be paid out of his estate what said services were reasonably worth.”

Then follows an allegation of the value of the services, presentation of the claim, and refusal of the administratrix to allow it.

An answer to this petition was filed hy the administratrix containing three defenses. It is necessary to consider only the second and third defenses, as demurrers were interposed to them.

The second defense, pleads the, six years statute of limitations upon an account. This defense says that if any of sard services were rendered as alleged in the petition, that all of said services which were rendered prior to November 12, 1895, if any were so rendered, were rendered by said plaintiff more than six years to the beginning of this action, an.d are therefore barred by the statute of limitations. The demurrer was sustained to this defense.

The third defense is the two years statute of limitations in the case of an action against an administrator. The defendant says that Henry Boory died intestate on or about the 31st day of May, 1899; that on the 15th day of June, 1899, she was duly appointed administratrix of the estate of ITenry Boory, deceased; that on said day she gave bond in.the manner provided by law, and gave notice of her appointment by publication of the same. Defendant further says that the first cause of action of plaintiff herein accrued during the lifetime of said Henry Boory, and that this suit was not brought until two years after the filing of said bond; and is therefore barred.

Our attention is called to the fact that Section 6113 with regal'd to limitations of actions on claims against administrators, was amended on April 8, 1898. Prior to that date it read as follows:

“No executor or administrator, after having given notice of his appointment as provided in this chapter, shall be held to answer to a suit of any creditor of the estate unless it be commenced within four years of his giving bond as aforesaid.”

On April 8, 1898, the Legislature changed the four years to two years, and we are called upon to determine which statute applies to this case. ' •

It is necessary to consider the facts or events set forth and the dates thereof. The petition alleges that the original agreement between the decedent and the plaintiff was made in January, 1893. April 8, 1898, the statute was amended and the limitation changed from four years to two years. Henry Boory died May 31, 1899, and his administratrix was appointed and gave bond on June 15, 1899, This claim was presented and rejected on November 1st, 1901, and suit brought on November 12, 1901, which was more than two years after the giving of the bond by the administratrix, but less than four years.

Tt is conceded that statutes of limitations are remedial statutes, and in construing and applying the proper statute under the facts of this case, we are referred to Section 4774 in the chapter on limitations, which reads as follows:

“This chapter shall not apply to actions already commenced or to cases wherein the right of action has already accrued; but the statute in force when the action accrued shall be applicable to such action according to the subject of the action and without regard to the form.”

And also to Section 79 of: the Revised Statutes:

“When a statute is repealed or amended such repeal or amendment shall in no manner affect pending actions, prosecutions or proceedings civil or criminal; and when the repeal or amendment relates to the remedy it shall not affect pending' actions, prosecutions or proceedings unless so expressed, nor shall any repeal or amendment affect causes of action, prosecution, or proceedings existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act. ’ ’

In construing the several statutes of limitations, and the application of Section 4774 and of Section 79 which I have read, thereto, the Supreme Court in 50 O. S., 1; in 56 O. S., 31, and 58 O. S., 280, have said that the remedial slatute in force at the time the cause of action accrued must be applied. .

I will read part of the syllabus in 56 O. S., 31:

“A right of action accrued to H, a married woman, before Section 4968, Revised Statutes, was amended March 26, 1883, so as to remove her disabilities as to actions affecting her said property. Held: That her rights must be determined by the statute of limitations in force at the time her right of action accrued, and the removal of her disabilities bjr said amendment did not cause the statute of limitations to begin to run against ber.”

This case was affirmed, 58 O. S., 284, so that we have the rule laid down to us that the statute of limitations in force at the time the cause of action aceraes, must be applied.

Now, when did this cause of action accrue? The petition after reciting the promise made in 1893, save that at the time the decedent agreed with her that should she continue to live with him, and look after the household and perform work and labor as set forth, sbe should after his death, be paid out of his estate what said services were worth. A cause of action can not be said to accrue until the claim or right upon which it is founded has matured, so that an action can be brought upon it. The plaintiff then had no right to sue for payment under this contract; nothing was clue her, until after the death of the decedent. That death occurred on May 31, 1899, and her cause of action accrued at that time. But more than a year before that, on April 8, 1898, the Legislature had said that no executor or administrate!' after giving notice of his appointment as provided in said chapter should be held to answer to the suit of any creditor of the deceased unless it be commenced within two years from the time of his giving bond as aforesaid. This action was not commenced within the two years, and the court properly overruled the demurrer to the third defense.

Applying the same rule to the second defense, the six years’ statute, we must determine when the cause of action accrued, and that of course accrued, in the light of that, statute, at the same time.

The demurrer was sustained to that defense, and properly. There was no error in the ruling of the court below and the judgment is affirmed.


text:
    PERSONAL JUDGEMENT AGAINST ONE ASSUMING PAYMENT OF A MORTGAGE.
    Circuit Court of Stark County.
    Navarre Deposit Bank v. The Wilson Avenue Lumber Co.
    Decided, February, 1903.

      Jnrisdiction — Court in Foreclosure Proceedings may Render Personal Judgment Against One Assuming Payment of Mortgage — Judgments — Fraud which Would he Defense to Original Action, Not Ground for Betting Aside Judgment.

    1. In an equitable action for the foreclosure of a mortgage, when the court has secured jurisdiction of the person of one who has assumed the payment of the mortgage by means of process duly served in another county, it may give equitable relief by enforcing the payment of the obligation by means of a personal judgment.

      ‘¿. Fraud in the instrument or transaction upon which a judgment at law is founded, does not furnish sufficient ground for an action to set aside the judgment, as the fraud constitutes a good defense to the action at law and must be set up at that time.
    3. A representation on the part of a plaintiff that it will forward a copy of its petition to a defendant, is not ground for setting a judgment against that defendant aside where he was properly served with summons.
    Winch, J. (orally), (sitting'in place of Judge McCarthy) ; Vooriiees, J., and Donahue, J., concur.
   The case below was one in equity seeking to enjoin the enforcing of a judgment at law and the levying of an execution, and to vacate and declare null and void said judgment.

The petition alleges three several causes of action: first, raising the question of jurisdiction of the court over the person of the Wilson Avenue Lumber Company; second, alleging the falsity of the allegations of the petition upon which said judgment was returned; third, alleging certain frauds.

A general demurrer was filed to the petition, which demurrer was, upon hearing by the court below, overruled. Exceptions were taken, and the action of the court upon the demurrer is the only question raised by the petition in error.

The suit upon which judgment was rendered was one to foreclose a mortgage, and the Wilson Avenue Lumber Company at the time of the commencement of said aciiou ivas the owner of the property. The property was located in the city of Canton, the Navarre Bank at Navarre, and the Wilson Avenue Lumber Company, a resident of Cuyahoga county.

It is claimed that the Wilson Avenue Lumber Company had assumed and agreed to pay the mortgage held by the bank and which it was seeking to foreclose. The mortgagors were parties defendant to the action, but, I believe, were not summoned; or, if summoned, it was by publication.

Summons for the Wilson Avenue Lumber Company was issued to the sheriff of Cuyahoga county, and served by him.

The first question raised by the demurrer is as to the sufficiency of the first cause of action, to-ivit: That tlie Stark County Common Pleas Court did not have jurisdiction of the Wilson Avenue Lumber Company to render a judgment — a personal judgment — against it, in this action to foreclose the mortgage.

The original action, being for the foreclosure of a mortgage upon real property situated in Stark county, was local in character, and rightly brought into said county under Section 5019, Revised Statutes.

The action being rightly brought in Stark county, summons may be issued to any other county against one or more of the defendants at the plaintiff’s request, according to Section 5035.

The Supreme Court held in 59 O. S., 611, that in an action to foreclose against the original mortgagor such summons-may he issued to another comity, and render him liable to personal judgment for the amount due on the note. The defendant in error, however, points out this distinction: that a person who has assumed and agreed to pay a mortgage is not in such relation to the mortgagee as to entitle the mortgagee to a judgment against him in an action for foreclosure of the mortgage, and that this section of the statute allowing service in another county, does not apply.

In 66 O. S., 290, the ease in which a decision has been handed down since this ease was brought in the court- below, the court concedes that summons may issue to another county to bring in and render liable to a personal judgment a person who has assumed a mortgage. That case was not decided, however, upon that point, and yet we think that upon principle, had that point been fairly raised, the court would have so held.

In the 78th American Decisions, page 69, this contract of assumption is discussed on page 70: “Where a grantee in a deed covenants with the grantor to pay off an incumbrance the grantee, by virtue of agreement, is -regarded in equity, as the principal debtor, and the grantor as a surety only.” And it is also a principle in equity, that “a creditor is entitled to the benefit of all collateral obligations for a payment of the debt, which a person standing in the situation of a surety for others receives for his indemnity, and to relieve him or his property from liability for such payment.”

And it is here pointed out that the action against the person who assumes is an equitable one. An action to foreclose is an equitable action.

Now, in discussing the statute of New York, which is similar to ours, with regard to allowing a personal judgment against the mortgagor in an action to foreclose — this case being decided in New Jersey, where the statute forbids a persona] judgment in such eases — the court say, on page 71, “It remains to he eonsidered whether the complainants are entitled to such relief upon a bill to foreclose.” In New York, on a bill filed for the satisfaction of a mortgage, it is the practice to decree payment by the mortgagor or by any other person who may have become security for the payment of the debt, of the balance of the debt remaining unsatisfied after a sale of the mortgaged premises. This is done, however, by virtue of the express provisions of their statute. And that statute, as I have .said, is similar to ours in that respe h.

Independent of statutory provision, the rule of equity is that a bill to foreclose is in the nature of a proceeding in rent, and the party is confined in his remedy to the pledge. The suit is not intended to act in personam.

In this ease the bill was filed to foreclose a mortgage given to secure the payment of a bond. The bill, in form, was an ordinary foreclosure bill. The complainant applied for a decree, directing the mortgagor, in case of a deficiency upon the sale of the mortgaged premises, to pay the remainder of the debt. It was ruled that his proper remedy was at law upon the bond. Citing the case of Hunt v. Lewin, 4 Stew. & P., 338:

“But if the bond be lost, or if there be other special circumstances which, independent of the mortgage, give the court jurisdiction over the demand, a decree against the mortgagor will be made for the balance of the debt remaining unsatisfied by a sale under the mortgage.”

In this case the complainant had no remedy whatever at law against Ise. (Ise was the person who had assumed the mortgage.) “That claim is purely equitable, and must be enforced, if at all, in a court of equity. The bill is framed with a view to this form of remedy, and prays for this specific relief. It charges that Ise is responsible for the debt. He has had a full opportunity oí answering. Under these circumstances there is no reason why he should not be decreed to pay the debt under the bill.” And a very large number of authorities are cited in the note. • It is the fullest note on the subject of the assumption of mortgages that we have been able to find.

The case before us was an equitable action for the foreclosure of a mortgage. There was an equitable right existing against the person who had assumed; and we think that having jurisdiction of the person of the lumber company by reason of the foreclosure proceeding, it had a right to go ahead and give equitable relief by enforcing the obligation. •

The second part of the petition alleges that as a matter of fact the Wilson Avenue Lumber Company did not assume the mortgage; that it was not so stated in the deed to it; and that there was no separate contract of assumption. And it goes on and alleges certain acts on the part of the bank, which it is claimed, constitute fraud in procuring the judgment that was rendered in the original action.

The petition says that prior to the commencement of said action the said defendant, plaintiff in said original action, advised the plaintiff that it was about to begin suit for the foreclosure of said mortgage, and represented the value of the lots to be well worth twice the. amount of its mortgage. The lots, as I have previously stated, were in the city of Canton, and the Navarre Bank is in Navarre, and the lumber company in Cleveland.

Plaintiff says that it was ignorant of their true value and had no knowledge thereof, and relied upon said statement of the defendant, believing that when said lots were sold under such foreclosure proceeding, the proceeds would be more than sufficient to pay the amount of said note and mortgage, and the costs .of foreclosure. And the plaintiff further says that the defendant, prior to the commencement of said action, promised to the plaintiff, through its attorney, .Daniel W. Shetler, that it would send plaintiff’s attorney in Cleveland a copy of the petition in said proposed action when the same should be begun, which promise of said defendant the said plaintiff relied upon, and paid no further attention to the matter, believing that a copy of said petition would be sent to plaintiff if such proceeding or suit in any manner affected plaintiff’s right other than as lien-holder against said premises.

We will consider all these allegations together in arriving at the sufficiency of the second cause of action.

Black on Judgments, Section 368, says:

“Fraud has always been reckoned among the special abhorrences of equity, and fraud is one of the grounds upon which application is most frequently made to equity for relief or redress. It is well settled that equity will enjoin a party from enforcing a judgment which he has obtained by means of fraud. ’ ’

And further on in the section he distinguishes three classes of cases:

“First. There may have been fraud in the instrument or transaction on which the judgment at law is founded. This, since it constitutes a good defense to the suit at law, must be set up then and there. ’ ’

That is, adopting that rule to the case at bar, if this mortgage was not assumed by the lumber company, it should have set xip that fact in the original action.

“If the defendant was iguorant of it, or had no opportunity to plead it, or was prevented from setting' it up by the artifice or fraud of its adversary, it may be available on a supplemental application to chancery.”

Now in this case the petition shows that the lumber company was not ignorant of this defense, nor was it prevented from setting it up by the artifice or fraud of its adversary; for the only allegation in the petition is that the attorney for the bank had stated that he -would send a copy of ilie petition. But it had other means of procuring a copy. A letter addressed to the cleric would have gotten one for it without any trouble. It is admitted that the lumber company was served by the sheriff of Cuyahoga county.

“Secondly. Whatever was the character of the defense, supposing it to be good and meritorious, the successful party may have practiced fraud or trickery in such wise as to prevent the other from bringing, it before the court. Here equity will relieve, if the applicant himself "was not guilty'of negligence or fault. ”

As to the allegation the bank represented that the lots were ■worth twice as much as the mortgage, it does not appear but what the lumber company in Cleveland has as good an opportunity .to know the value of the lots as the bank in Navarre. Tt would also .appear that it was the lumber company that was negligent and at-fault'in -not procuring.-a.copy of the petition, notwithstanding the promise which had been made without any consideration by the attorney for the bank.

The third class of cases is where “the fraud charged may have been practiced in the act of procuring the judgment to be entered, or in taking judgment in violation of an agreement to the contrary.” We find no allegations in the petition coming within this class of eases.

We think, therefore, that the court erred in overruling the demurrer, and the judgment is reversed.


text:
    COMPENSATION TO COUNTY AUDITOR..
    Circuit Court of Delaware County.
    State of Ohio, for Delaware County, v. Lyman P. Lewis et al; and Commissioners of Delaware County v. Lyman P. Lewis et al.

      Officers — County Auditors' Fees — Action on Bond of an Officer Not Maintainable to Recover Money Illegally Drawn from County Treasury.

    1. The county auditor is entitled to four per cent, of the tax collected and paid into the county treasury on property omitted and placed by him upon the duplicate, even though a tax inquisitor has been employed to aid him and furnish him with evidence in the performance of his duty, and is paid a percentage by the county.
    2. The county auditor is entitled to such fees for indexing the records of county commissioners, as other officers receive for like services.
    ". The county auditor is entitled to compensation for preparing and supplying to assessors necessary blanks as provided in Section 1029, Revised Statutes.
    4. Section 1277, Revised Statutes of Ohio, authorizing the county prosecutor, kua sponte to begin an action to recover back public moneys illegally drawn out of the county treasury, does not permit him to sue on the bond of the officer who has drawn the money.
    Winch, J. (sitting in place of Judge Donahue) ; Voorhees, J., and McCarthy, J., concur.
   These two cases as submitted to the court upon the pleadings and agreed, statement of facts, require answers to the following questions:

1. Is the county auditor entitled to four per cent, of the tax collected and paid into the county treasury on property omitted and placed by him on the tax duplicate, when the tax inquisitor has been employed to aid him and furnish him with evidence in the performance of his duty, the tax inquisitor being paid a percentage by the county?

2. Is the county auditor entitled to fees for indexing the records of the board of county commissioners?-

3. Is the county auditor entitled to the same fees for copies of notices to lot owners in ditch eases prepared and delivered by him under Section 4451a, Revised Statutes, as he is allowed for the notice to the petitioners ?

4. Is the county auditor entitled to compensation for preparing and supplying to assessors necessary blanks as provided in Section 1029, Revised Statutes?

First. It is contended by counsel for plaintiff in error that when the Legislature provided for the employment of tax inquisitors it was intended to provide an alternative means whereby tax shirkers might be made to bear their share of public burdens. That it being the duty of the auditor to place omitted property upon the duplicate, to pay him for omitted property discovered by the tax inquisitor would afford the auditor the means of shirking his duty while still enjoying special compensation, and that such a construction would offer a premium for laziness and emasculate the statutes describing the auditor’s duties as to omitted property.

With these views we do not agree. The history of tax legislation in Ohio shows that the Legislature, within the scope of the Constitution, has by its enactments striven to enforce upon the tax duplicate property which has so notoriously escaped taxation in this state. To this end it first provided a special compensation to the auditor for performing his duties with regard to omitted property. It is well known that the auditors throughout the state failed to add much omitted personal property to the duplicate notwithstanding this inducement given to them in the shape of a percentage upon the amounts added. They failed because they did not have the facility or the ability to discover what property was wrongfully withheld from taxation. To provide them with skilled assistants, clerks and attorneys the tax inquisitors were provided for. The results since the tax inquisitors have been at work have been highly satisfactory so far as the taxing authorities have been concerned, notwithstanding the criticism made upon their methods. The auditor formerly did not have the time to investigate as to omitted property and then pass upon the merits of the cases as a qoiasi-judicial officer.

Other county officers are provided with counsel for special matters. Even the'treasurer, under a recent enactment of the Legislature, can employ counsel for the sale of forfeited lands under foreclosure proceedings,, and such counsel can be paid a percentage of that amount of taxes collected, without in any manner diminishing the treasurer’s fees. It seems that on principle the employment of tax inquisitors should be considered an additional and not an alternative means of securing the return of omitted personal property for taxation.

The first question herein stated has recently been answered in the affirmative, by Lucas County Circuit Court in the case of State v. Godfrey, 24 C. C., 455, Judge Hull delivering the opinion and carefully reviewing the statutes and authorities. We follow that decision and concur in it on this question.

Second. Is the eotinty auditor entitled to compensation for indexing the records of the commissioners?

Section 850, Revised Statutes, provides that in counties where no index has been made of the commissioneiS’ records, the commissioners are authorized to cause an index to be made of such past record, for such period of time subsequent to January 1st, 1880, as their judgment may determine, and the clerk (county auditor) shall receive for said indexing such compensation as is provided for like services in other cases.

The language of this section seems clear and to require no construction. The auditor is entitled to such compensation for indexing the records, as is provided for “like services in other eases.” Tn the case last cited the Lucas County Circuit Court held that the county auditor is entitled to receive for such acts the same fees as other officers receive for like services, and following that ruling we find that the auditor is entitled to the fees allowed him by the county commissioners for such services.

Third,. Is the county auditor entitled to be paid for copies of ditch notice?

Section 4506, Revised Statutes, allows tlie county auditor for .all notices six cents for each hundred words, but he shall receive no fees for printed notices.

Section 4451a provides that the auditor shall prepare and deliver to the petitioners, or any one of them, a notice in writing, directed to the lot or land owner and to the corporation either public or private affected by the improvement, setting forth the substance, pendency and prayer of such petition; a copy of that notice shall be served upon each lot and landowner.

AYe think- that this means that the auditor shall prepare one notice, deliver it to tire petitioners, and they shall prepare and serve copies of such notices upon the landowners.

In this respect we would follow the judgment below with one modification, that interest is to be computed upon the aggregate amounts unlawfully paid the auditor for copies, only from the date of the filing of the petition, were it not that we are satisfied that the county prosecutor is not entitled to maintain this action, which is a suit on the auditor’s bond, there being no presentation of the report by an examining committee appointed by the common pleas court, showing a breach of this bond, as required under Section 1133, Revised Statutes.

In other words, the prosecutor has assumed that Section 1277, Revised Statutes, authorizing him aua sponte to begin an action to recover back public moneys-illegally drawn out of the county treasury, permits Him to sue on the bond of the officer who has drawn the money.

'Such can not be the ease. The latter statute limits the discretion of the county commissioners in their administration of the financial affairs of the county, and must be strictly construed. State v. Zumstein, 4 C. C., 268.

The demurrer raising the question should have been sustained by the court below.

Fourth. We think the auditor is entitled to compensation for preparing and supplying1 to assessors necessary blanks as provided in Section 1029, Revised Statutes.

The judgments in both cases are affirmed as to the four per cent, compensation on omitted property and fees for indexing, and reversed as to compensation for copies of ditch notices and furnishing supplies to assessor's.


text:
    MEASURE OF DAMAGES IN AN ACTION AGAINST AN AGENT WHO EXCEEDED HIS AUTHORITY.
    Circuit Court of Cuyahoga County.
    L. K. Raymond v. F. L. Raymond.

      Power of Attorney — Power to Sell Does Ptot Authorize Exchange of Property — Measure of Damages when Property is Wrongfully Disposed of.

    1. A power of attorney granting to the attorney the right to “sell and dispose of” certain premises does not authorize him to exchange them for ether real estate.

      2. Where property is exchanged for other property it can not be treated as a cash sale even though the deed recites a certain money consideration.
    3. Where an agent has exceeded his authority by exchanging his principal’s property for other property, title to which he has caused to be taken by certain relatives, but without any bad faith on his part, upon suit by the principal for damages, the measure of damages will be the actual value of the property disposed of and not the consideration recited in the deed.
    WiNcrr, J.; Marvin, J., and Lattbib, J. (sitting in place of Judge Hale), concur.
   On December 19, 1893, t-lie plaintiff, being the owner of certain leal estate on Euclid avenue in the city of Cleveland, which was heavily encumbered, and also being indebted to his brother, the defendant, his wife joining with him, executed a power of attorney to the defendant, authorizing the latter “to sell and dispose of ‘said premises’ for such price or sum of money, and to such person or persons as he shall think fit and convenient. And until such sale and conveyance to rent and keep said property in repair, and from the proceeds received from the rents and from the sale of said property, to pay all expenses and costs of repairs, taxes, insurance and claims and liens of every description against said property, and any and all moneys that may in any way be due or owing from us or either of us to the said E. L. Raymond (the defendant) rendering the balance if any to us.”

On the same day plaintiff executed and delivered to the defendant a mortgage on said premises securing his note of said day for $2,413.38, with interest at seven per cent., the sum including the indebtedness then existing in favor of the defendant and other payments made by the defendant in clearing up minor charges against the property. At that time there was a prior* mortgage on the property held by E. J. Weil on which was due the sum of $8,500, so that the total indebtedness charged against the property in 1893 was $10,913.38.

The defendant took charge of the property, rented it, kept it in repair, paid the taxes on it, and collected the rents from it, but the income from the property did not equal the outgo, so that on October 4th, 1899, according to the account submitted by defendant, there was due him on his mortgage, including unpaid interest thereon, and for money advanced by him in keeping the premises in repair, the sum of $5,140.22, and there was due on the Weil mortgage, including interest and taxes the sum of $10,439.54, the total indebtedness against the property having increased to $15,579.56.

On the last named day defendant made an exchange of properties with one T. M. Bates, and deeded the property on Euclid avenue to the latter, executing the deed as attorney for plaintiff and his wife. The consideration named in the deed was $18,375, and Bates assumed and agreed to pay the Weil mortgage. Bates shortly thereafter paid the Weil mortgage and it and the note secured thereby were canceled.

In exchange for the Euclid avenue property, Bates gave $2,575 in money and two houses and lots on Knox street and a house and lot on Mayfield street. The Knox street properties he deeded to Prank C. Raymond, son of the defendant, the consideration being named at $4,100 each. On each of these properties Prank O. Raymond gave a mortgage back for $2,250. The Mayfield street property was deeded to Belle Raymond, wife of the defendant, consideration named, $5,100, and she gave a mortgage back on this property for $3,000. The cash payment was reduced by commissions, necessary expenses and application on the Weil mortgage, so that defendant really received in cash the sum of $1,968.76.

Shortly after the transaction defendant rendered to plaintiff a statement showing' the disposition he had made of the property and exhibiting the accounts between parties. This statement treats the two Knox street properties and the Mayfield street property as belonging to plaintiff, gives the values at which they were taken at, amounting to $13,300, less the mortgages given thereon, aggregating $7,500, making the equities therein $5,800.

Defendant applies the sum of $1,968.76 cash received by him from Bates to his claim of $5,140.22, leaving the balance due him of $3,171.46, and claims the latter amount as his share in said ‘ ‘ equity. ’ ’

Plaintiff refused to abide by this statement of accounts and in May, 1900, brought this action in which he asks for an accounting and a judgment for what may be.found due him on the accounting. He treats the exchange of properties as a cash sale and claims that defendant should account to him for the sum of $18,375 cash, that being the consideration named in the deed of the Euclid avenue property.

The defendant, answering, sets up the transaction substantially as here given, says that the exchange wa,s for the benefit of all parties concerned; that by the exchange he largely reduced plaintiff’s mortgage indebtedness; alleges that he has rendered full and itemized statements'of the matter and that plaintiff has expressed satisfaction with his management and has not offered to liquidate his indebtedness to defendant.

Defendant says he is at present unable to sell the Knox and Mayfield street properties and convert them into money and will he unable to render any further account until he does sell them. He says that he took title to the three properties in the names of his son and wife to avoid the necessity of re-executing mortgages and power of attorney to himself, and to facilitate the transfer of the property; that he has since offered to have said properties conveyed to plaintiff upon the execution to him of proper mortgage and power of attorney and that he is still ready and willing to have said conveyances made.

At the trial below as well as in this court such deeds were tendered.

The first question raised by this sil nation is: “Was the disposition of the Euclid avenue property a cash sale?” We think not. Consideration stated in a deed can always be inquired into. The real consideration was an exchange of properties.

Second: Was the power of attorney broad enough to include the right of exchange as well as to sell? We do not think so. Such construction can only be given the instrument by enlarging upon the meaning of the one word “dispose” used conjrmctively and not disjunctively with the word “sell” and failing to give effect to the whole instrument by considering the purpose for which it was intended.

But whether the power of attorney would warrant an exchange or not is immaterial, as will be seen by a further consideration of the case. It did not warrant taking deeds either to the defendant or to his son or wife and it would not cover property received in exchange if title were taken to the plaintiff himself, for it described and applied to the Euclid avenue property alone. ' , '

Having thus concluded that the agent exceeded his authority the third question to be answered is: What remedy has the plaintiff? Authorities are so numerous that it is unnecessary to cite them that the principal may elect between three remedies.

1. He may repudiate the transaction and reclaim the original property.

2. He may bring an action against his agent asking for damages and the measure of damages would be the value of the property wrongfully disposed of by the agent.

Plaintiff has seen fit to pursue the last named remedy, but a fourth contention now arises. Plaintiff says he is entitled to be paid in money the difference between the considerations named in the deeds of the three lots and the mortgages upon them. This is the same as asking for the consideration named in the deed to Bates of the Euclid avenue lots. On an exchange of properties the considerations named in the deeds rarely represent the values. Defendant on the other hand claims that plaintiff must adopt the transaction in toto and take the properties themselves charged with the indebtedness to him. This might be true if the deeds had been made direct to the plaintiff, but persons not parties to this suit liolcl title. Indeed, had defendant taken title to himself, he would hold the same in the nature of a mortgage interest, to secure the debt due liim and as trustee for the plaintiff of any overplus. We could then, or if the plaintiff held title, order the property sold, the mortgage liens first paid, the defendant’s claim next paid, and the balance to go to the plaintiff. Any such order in this case would he inoperative because the parties holding legal title are not before ns.

There is no merit in the contention about a continuing” trust existing in property to which the trustee has no legal title and that the trustee is not hound to account until the third parties convey the property and pay over the proceeeds to him, and especially since neither party has seen fit to bring these third parties before the court so that they or the property held by them may he subject to the orders of the court. Tt is idle to make an order that can not be enforced.

It is due the defendant to say that though he was charged with bad faith in this transaction, not only was no testimony adduced tending to prove had faith on his part, hut on the contrary it was shown conclusively that in making the exchange of properties he acted in the utmost good faith and with an honest desire to produce the fairest and best results for all parties concerned. Such being the case we consider it equitable to charge the defendant with the fair market value of these three properties in 1899. It is the same as though he had received the consideration for the Euclid avenue property in money, but the exact amount of money received by him was unknown to plaintiff; or as though having taken the three houses in exchange he had immediately sold them and refused to make any statement of the proceeds of their sale.

From the testimony we find that in October, 1899, when the exchange of properties was made, the' fair market value of the Knox street properties was $3,500 each, and of the Mayfield street property $4,000, making $11,600 in all; deducting the mortgages on these properties amounting to $7,500 leaves the net value of ah three places $4,100; with which amount we charge the defendant.

It was admitted on. the hearing that the statement of accounts between the parties rendered by defendant November 6, 1899, is substantially correct. The only modifications in it we make are to compute interest on the open account due defendant at 6% instead of 7% after deducting from said account the sum of $1,500 overcharge on amount paid on Lee judgment. Thus taking the account, we find that on October 4. 1899, that plaintiff was indebted to defendant in the sum of $3,103 58. Deducting- this amount from' the $4,100 with which we have charged defendant, leaves him indebted to the -plaintiff in the sum of $996.42.

Interest should be computed on this amount from October 4, 1899, and decree may be drawn accordingly.

Defendant has asked for compensation for his services in taking care, of the Euclid avenue property. It turns out that his interest in the property was more considerable than that of his brother and under the circumstances we do not think he should be paid anything for his services.


text:
    LIABILITY OF RIPARIAN OWNER. FROM CONSTRUCTION OF A DAM.
    Circuit Court of Summit County.
    The Columbia Chemical Company v. William B. Irish.
    Decided, November, 1912.

      Waters — One Erecting Earn LiaUe for Injury to Land Not Overflowed.

    One wbo dams a water-course, thus raising the level of the water farther up stream, is liable in damages to a riparian owner whose land thereby becomes water-soaked and unproductive, even though the dam caused no actual overflow of water upon the land.
    Marvin, J.; Niman, J., concurs; Wincii, J., dissents from judgment of affirmance.
   In this opinion, the parties will be spoken of respectively as plaintiff and defendant, in the relation in which they stood in the court below, which is the reverse of the relation here.

The plaintiff is the owner of a farm, along the east side of which, or a part of which, is a channel through which a considerable volume oil water flows. Originally there was a natural stream of water known as Wolf creek, or Wolf run. This natural stream was straightened, deepened and broadened by the commissioners of Summit county about the year 1893.

A tract of about thirty acres of the plaintiff’s land lies along tlio west side of this channel spoken of as Wolf creek ditch. The general direction of the stream is from north to south, and something like a mile and a quarter south of the south line of the plaintiff’s thirty acres, the defendant corporation erected across this stream a dam on its own premises, for the purpose of storing up water which should come down the stream or ditch for use in the manufacturing plant of the defendant. This dam ivas erected in 1899. .As originally constructed it was a solid dam, but within a year or two thereafter the construction of the dam was so changed that gates were placed in it in such wise that they could be raised and lowered, and the construction was such that when these gates were raised to the full distance to which they eotdd be raised, the dam formed but a slight obstruction to the current of the stream. The crest of the dam is three feet higher than the natural -water level and, of course, udien the dam is full of water to the crest, the water is held back and caused to remain in the upper part of the channel, - and to a greater or less extent overflow its banks.

The'plaintiff’ alleges in his petition that the result of such holding back of the water has caused it to overflow his said thirty acres of land; that such overflow of the said waters upon the land and the raising of the level of said water in the said creek or ditch, all directly caused by the construction and maintenance of the said dam by the défendant, was to increase, and ever since said dam was constructed in 1899, has continued to increase the volume of wrater in said creek or ditch, and has inundated and overflowed the said thirty acres of land during a greater portion of the winter and spring of each year ever since said dam was constructed; that this condition is also true at all times when there has been a heavy fall of rain or high water, regardless of the season of the year; that- such inundation and overflow’ do and have caused sand, gravel and sediment to be deposited on said thirty acres of land, and such inundation and overflow have resulted in causing all said thirty acres of land to become watersoaked and sour, so that ever since the construction of the said dam by the defendant, he has been unable lo cultivate said thirty acres of land or to raise anything whatsoever upon any portion of the same; that prior to the construction of said dam the plaintiff was able to and did cultivate every part of’said tract, and raised thereon numerous crops of corn, oats, wheat and hay; that prior to the construction of the dam the land was dry and suitable for cultivation; that ever since the construction and maintenance of said dam by the defendant said land has been nothing but a swamp, so that by reason of its soft and marshy condition, horses and cattle could not- venture safely to pasture thereon except during the summer seasons of dry years; that the condition of such land as it has existed ever since the construction of the dam is the proximate and direct result of the construction and maintenance of such dam.

The amended answer of the defendant, which was the answer upon-which the case was tried, admits the ownership of the laud by the plaintiff and the construction of the dam by the defendant; that the dam raised the level of the creek about three feet higher than the natural level of said creek.

The plaintiff, by his petition, which was filed on the 21st day of March, 1930, sought to recover for the injuries to his property from the time the dam was constructed in 3899 up to the time of the filing of the petition. The defendant pleaded the statute of limitations as to all damages accruing prior to March, 1906, and the court sustained this claim of the defendant,

It developed on the trial that- from March, 1908, until the filing, of the petition, the farm of the defendant, including the thirty acres in controversy here, was under lease to another party, and the court held that for the time in which the land was so under lease, the plaintiff could not recover; so that the controversy narrowed down to whatever loss the plaintiff sustained between March, 1906, and March, 1908, a period of two years.

The plaintiff, over the objection of the defendant, was permitted to introduce evidence tending to show that the land in controversy was rendered soggy and wet and sour, and unfit for cultivation by tbe maintenance of the creek, bordered on said land, higher than it would have been but for the dam,.even though the water did not overflow the land. That is, that without the land being actually covered over with water, the maintenance of the water at a higher level than it would have been but for the dam was a great injury to the land in rendering it unfit for cultivation and preventing the raising of crops thereon.

It is urged that under the petition this evidence should not have been admitted, because of the allegations in the petition that the water was caused to overflow' the land and deposit gravel, and sand and sediment thereon, and that the overflow on the land had caused the same to become watersoaked and sour. ■

It was urged on the part of the defendant that except the land became water-soaked and sour by being overflowed with water, the plaintiff could not, under his petition, recover.

We think this position pf the defendant is not sound. The allegation in the petition in this regard is: “He avers that the effect of the overflow of said water upon his land and the raising of the level of the water in the said creek or ditch, all directly caused by the construction and maintenance of said dam by the defendant, was to increase, and ever since said dam was constructed in 1899 has continued to increase, the volume of water in said creek or ditch, and has inundated and overflowed said thirty acres of land during a greater portion of the winter and spring of each year since 1899; that such inundation and overflow have resulted in causing all of said thirty acres of land to become w^ter-soaked and sour, so that ever since the construction of said dam by the defendant he has been unable to cultivate the same. ’ ’ etc. . -

Construing this petition liberally, as the plaintiff is entitled to have it construed, we think the allegations are sufficient to permit evidence that the maintenance of the higher level of water along the line of the plaintiff’s land caused the land to become water-soaked and soui’, and thereby interfered with its cultivation.

Evidence was introduced on the part of the defendant showing- that the same year that this dam was constructed, the Belt Line Railroad constructed an embankment along the east side of this ditch some three feet higher than the bank of the ditch, and it is urged by the defendant that this embankment along the east'side of the ditch was in great measure, if not wholly, the cause of any increase of the volume of water along the line of the defendant’s land.

It is clear that when the water of the stream is held back by the dam so as to fill up to the crest,of the dam, the water will necessarily he higher than it would be without the dam, for a greater or less distance up the stream. However far np the stream we may go, if it is three feet higher at this dam than it would he without it,- then the siirface of the stream must be higher as far up the stream as it is affected at all by this dam, and it is shown that opposite the plaintiff’s land it was several inches higher that it would he without the dam.

It is said, and the evidence seems to sustain the proposition, that such increase in the level of the surface of the stream-along the line of the plaintiff’s land would not cause the water to overflow upon the land. But the evidence tends to show that even without the overflowing, such- increase in the height of the stream would cause the laud to be swampy, water-soaked and sour.

How the embankment along the east side of the stream placed there by the railroad company, could in anywise contribute to the injury to the land by such soaking under the surface is not clear. So long as the water is not above the hanks of the channel, the amount of the water in the channel is not affected by the height of this embankment, placed there by the railroad company.

The testimony of the plaintiff, his sons and others, is that before the construction of this dam the thirty acres of land in controversy produced good crops each year, from the time of the opening of the ditch in 1893; that from the time the dam was put in, the land was practically valueless. It is true that some wild grass grew upon it, and that cattle which were being pastured upon the farm of the plaintiff were permitted out on this thirty acres, but certainly the evidence tends to show that such use of the land was of no real value. It does not necessarily follow that because crops were raised upon this land during all the time from 1898 to 1900, and that it'has produced no crops since, the loss of crops results from the putting in of the dam, because it may be that the seasons are different, and that the same is true of other lands in the vicinity, but there is no evidence tending to show that this failure of crops was because of a difference in the seasons or for any other reason than because of the increase of water in this ditch, and. certainly it can not properly be said that such evidence does not tend to show, indeed, it does not make it probable, that the difference in the availability of the land for raising of crops results from the holding back of the water by this dam.

Among the witnesses who testified on the proposition that the land was in good condition for cultivation before the putting in of the dam and that it was not susceptible of being tilled after the putting in of the dam on account of the wet, is Mr. O. C. Barber, who is shown to be a very extensive land owner, probably the most extensive land owner in the county. This witness says that the rental value of the land, in his opinion, was easily $10 per acre. Mr. Charles Ilansberger-testifies that after the ditch was put in this land produced good crops of corn, oats and timothy; that after the dam was in, the land was wet and soggy, and that in his opinion the rental value of the land was from $S to $10 per acre.

Mr. Irish himself undertook to put it at $15 per acre, but a further examination showed that he based that upon the proposition that he thought he could make it pay him $15 per acre, so that the court excluded from the jury his estimate as to $15 per acre. But from the other evidence, including that of Barber and Ilansberger, the jury might well have reached the conclusion that its rental value was from $6 to $10 per acre. The verdict of the jury shows that they estimated it at about $7 per acre, and so we reach the conclusion that the verdict was not excessive, and that it is supported by the testimony as to the rental value of the land when the stream was unobstructed, and the fact that it was of no practical value after the dam was put in and the obstruction made.

We reach the conclusion, therefore, that there was no error to the prejudice of the defendant in the trial of this cause, or in the overruling of the motion for a new trial, and the judgment is affirmed.


text:
    ERROR IN DIRECTING A VERDICT FOR THE PLAINTIFF.
    Circuit Court of Cuyahoga County.
    The Brookside Brick Company v. Harry Koblitz.
    Decided, November 6, 1907.

      Practice — When Court May Not Direct a Verdict for Plaintiff.

    In a case where the plaintiff depends upon the testimony of witnesses to 'establish his case,'and defendant makes no motion to have the case taken from the jury, .it is error for the court to direct a verdict for the plaintiff.

      Kart, Canfield & Crolce. for plaintiff in error.

      Ford, Snyder é Tilden, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   Koblitz originally brought suit against the brick company before a justice of the peace; the case, after judgment, was appealed to the court of common pleas, and Koblitz then filed a petition and later an amended petition upon which latter petition, with the answer and evidence, the case was tried. In this amended petition the plaintiff alleges that the defendant is indebted to him in the sum of $299 with interest from the 23d day of September, 1905, for services rendered by the plaintiff to the defendant, as set forth in an account annexed to and made a part of said amended petition. This account is dated Cleveland, Ohio, September 9, 3905, and reads: '

“The Brookside Brick Company,
“To ITarry Koblitz, Dr.
“August 14.”

And then follow twenty-three items, no date being given to any one of them, nor any amount set opposite any one of them, but, at the end of the twenty-three items appear the figures $550 at the right hand side, as though this was the aggregate amount of the several items.

Then follow credits, as follows:

By cash received from De Lorenzo............$ 30
By cash received from Steinfurth.............. 5
By cash received from Plummer.............. 200
Credit by allowance.... ■...................... 16

making the aggregate of $251, which, subtracted from the $500 leaves $299. •

The answer filed by the defendant was a.general denial.

The result of the trial in the court of common pleas was a verdict and judgment for the plaintiff Koblitz,. and the defendant below prosecutes this proceeding for the purpose of reversing that judgment.

On the trial in the court below the plaintiff based his claim in large measure upon services which he claimed to have rendered to the defendant below in the purchase of certain real estate ; he claimed something also for services rendered in making collections. Whatever arrangements Koblitz made with the brick company for negotiating any such purchase were made with one Herman Spitz, who was the business manager of the brick company. The defendant below claimed that Spitz was without authority to employ Koblitz and claimed further that Koblitz received pay for his services in negotiating the land deal, from the vendors of the land. Koblitz admitted the. receipt of $200 from the vendor of the land and said that the item of credit of $200 as shown upon the account upon which he sued, is the $200 that was paid to him by the vendors of the land.

Without discussing further the evidence in the case, attention is called to the charge of the court to which complaint is made. The court in its charge first calls attention to the claim of the plaintiff and then, reading the defendant’s answer, says:

‘ ‘ Although in this answer the defendant places in issue every • allegation made by the plaintiff, I hold, ánd so charge you, gentlemen, that under the testimony offered in this case there is" no question but that the plaintiff did render services to the defendant at the defendant’s request. There is no question but that the plaintiff, as an attorney at law, did render services to the defendant — that he rendered these services — to the defendant, these mentioned in the petition.
“The only question, then, for your determination, is, gentlemen, whether or not these services are worth- the amount asked for by the plaintiff in the petition; and whether or not, under the evidence as given to you here, the amount asked for, to-wit, ‡299. That is the only question for you to determine in this case. ’ ’

It is said on the part of the plaintiff in error, and truly said, ■that this is in effect directing the jury to return a verdict for the plaintiff, leaving only to be determined the question as to the amount of the verdict.

. Without doubt, where a defendant and a plaintiff each ask for a direction that a verdict be brought in his favor, then, each is committed to the proposition that there is only a question of law in the case, and that question of law may be determined by the court, and, therefore, the court may direct a verdict either way.

In the case of Yankton Fire Insurance Company v. Fremont, etc., 7th South Dakota, 421, it is held:

“Where, at the close of the plaintiff’s evidence the defendant moves the court to direct a verdict in his favor, which is denied, and, no evidence being offered by the defendant, the court, on motion, directs a verdict for the plaintiff, and the defendant-does not request the court to submit the case to the jury, it is not error for the court to direct a verdict for the plaintiff.”

This opinion seems to have been carefully considered and many authorities are-cited, and the effect is that where a party by .a motion to direct a verdict in his favor in substance says to the court, there is nothing in this ease but a question of law, and if the court overrules such motion, and then the party who made it introduces no evidence, he may be treated as having submitted the matter upon the question of law to the court.

In the case of Battis & Black v. McCord, 70 Iowa, 46, it is said in the third paragraph of the syllabus:

“Where there is evidence tending to support the petition, on account of which the court overrules a motion to direct a verdict for the defendant, and the defendant stands upon the motion, the eourt may properly direct a verdict for the plaintiff. ’ ’

To the same effect is Dillon v. Cockroft, 90 N. Y., 649.

In the case of H. eisen v. Lamb, 117 111., 549, it is held that in an action of ejectment, where the plaintiff’s written evidence shows title in him, in the absence of any countervailing evidence the eourt is warranted in instructing the jury to find for the plaintiff. Other authorities are to this effect. But the rule seems to be, and certainly has so been held by this court, that where the plaintiff depends upon the testimony of the witnesses to make his case, and the defendant makes no motion to have the ease taken from the jury, the court is not warranted in directing a verdict for the plaintiff, but must submit the case to the jury, under proper instructions. We think, therefore, the court erred in using this language quoted in the charge to the jury. The court further said in its charge:

“The question as to the purchase of the land for which the plaintiff received $200 as commission from the original owners of this land, perhaps ought to be taken into consideration to a certain extent. If you find from the evidence that the plaintiff and the defendant, agreed that for that service the plaintiff was to receive his pay in the way of a commission from the original owner, that he was not to charge the defendant for such services, and if you find that the obtaining of that option was the only service that he rendered in regard to the purchasing of that land, and if you find that he did no further service in regard to the purchase of the land excepting to obtain an option, for which he vras to be paid by the original owner, then that should be taken into account in fixing the amount of service rendered and the value of the services rendered by him.”

This language seems to us to be misleading. We are troubled to understand wdiat was meant by the court wdien it said that if $200 was paid by the owner of the land, that this should be taken into account to a certain extent, and, we think it was at least misleading for the court to say to the jury:

‘ ‘ If you find from the evidence that the plaintiff and the defendant agreed that for that service the plaintiff was to receive his pay in the way of a commission from the original owner, that lie Avas not to charge the defendant for such seiwices, and if you find that the obtaining of that option Avas the only service that lie rendered in regard to the purchasing of that land, and if you find that he did no further service in regard to the purchase of that land, excepting to obtain an option, for Avliich he Avas to he paid by the original OAraer, then that should be taken into account in fixing the amount of service rendered and the value of •the services rendered by him.”

Certainly if the plaintiff beloAv had a contract that he was to receive AA'hatever compensation he did receiA^e from the original oAvner, instead of saying that that should be taken into account in fixing the amount of compensation he should receive for such service, it Avould seem that it Avould put an end to any claim the plaintiff beloAv might haAre had for services against the defendant; but it seems to us that the jury must have been left in doubt as to Avhat the rules of law governing their deliberations should be or else must have understood the rule to be different from Aihat avo understand it to be.

For error in the charge as pointed out and for the reason that a portion of the charge is misleading, as herein pointed out, the judgment of the court belowr is reversed, and the ease remanded for a iioav trial.