author: JONES (E. H.), J.

text:
    BANKS AND BANKING
    [Hamilton (1st) Court of Appeals,
    July 12, 1915.]
    Jones, Jones and Gorman, JJ.

      Second Nat. Bank of Cincinnati v. C. J. Enright et al.
    Bank Knowingly Receiving Check Deposited with Another Bank Fifteen Minutes before Closing for Insolvency; Takes it with Notice of Defenses.
    A check on a Newport (Ky.) bank was deposited by E in the Metropolitan Bank of Cincinnati fifteen minutes before its doors were closed not again to be reopened. The check was turned over by the Metropolitan to the Second National, which credited the amount of the check on an overdraft of the Metropolitan. The president of the;Second National had full knowledge of the condition of the Metropolitan. E stopped payment on the check, and the Second National sued him. Held,: That the Second National had notice of the defective title of the endorser of the check, and moreover did not take the check for value but for collection, and- its claim against the maker of the check fails on both grounds.
    Error.

      Jelhe, Clark & Forehheimer, for plaintiff in error.

      Cogan, Williams & Ragland and H. A. Reeve, for defendants in error.

      Motion to certify overruled by the Supreme Court, October '9, 1915.

   JONES (E. H.), J.

This action was brought in the common pleas court by the Second National Bank against C. J. Enright, on a check for $2,000 drawn by him on the Newport National Bank in favor of the Metropolitan Bank & Trust Co.

Mr. Enright -deposited the cheek to his account in the latter bank on Saturday, September 16, 1911. At that time he had a balance in said bank to his credit of $433 and owed the bank nothing. The Newport bank was ordered by Mr. Enright not to pay the check, and payment was accordingly refused; henee this suit.

For a week or more before said day an inspector from the state banking department had been in daily conference with the officers of the Metropolitan National Bank which, on account of its impaired assets and irregular and illegal methods of business, was to be closed by the hand of the law, unless certain prescribed conditions were complied with. The time for compliance had been fixed. September 16th was Saturday, on which day of the week this bank and other similar institutions closed at noon. It had been decreed by lawfully constituted authority that the bank could not be reopened on Monday morning unless certain conditions and requirements be met. The bank officials failed to comply, and the doors were not again opened for business after noon of that day. It was 11:45 when Mr. Enright deposited his check with the teller of the bank, fifteen minutes before the bank ceased business for all time.

There probably was no design on the part of the bank or its employees to defraud Enright. But the acceptance of the cheek by this toppling, tottering bank at such time and under such circumstances was a fraud, and the title to the check thus secured was defective. 5 Cyc., 499; Sec. 8160 G. C.

On the afternoon of the day it was deposited, the cheek, together with other commercial paper, was deposited by the Metropolitan with the Second National Bank. On the following Monday morning the last named bank (plaintiff in this action) credited the Metropolitan Bank with $2,000 and applied same to the reduction of an overdraft of $9,000 shown to have existed against the Metropolitan Bank at the close of business on Saturday the 16th. From this it is contended that plaintiff is a “holder in due course” as same is defined in Sec. 8157 G. C. This section provides that one is a “holder in due course” of an instrument when he takes “it in good faith and for value” and when “at the time it was negotiated to him he had not notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

The evidence shows plainly that the plaintiff in error fails to meet these conditions and is therefore not a holder in due course. The condition of the Metropolitan Bank at the time it received the check was well known to Mr. Galbreath, president of the plaintiff bank, who had attended one meeting, if not more, where the condition of the bank was under discussion by its officers and Mr. Romer, representing the State Banking Department. And on September 18th, when the check was applied by plaintiff to the overdraft of the Metropolitan Bank, the latter concern had been seized by Romer on behalf of the state. This action closely followed a midnight meeting like the one above mentioned which, too, was attended by Galbreath.

These' facts, it seems to us, dispose of the claim that the Second National Bank had “no notice of-the defect in the title of the person negotiating” the check to it. We think the evidence establishes with equal clearness that plaintiff did not take the check “for value.”

The cashier of the plaintiff bank testified that the check was received by it “for collection.” This is strenuously denied by counsel for plaintiff, who contended that this evidence of their own witness is refuted by other evidence and all the circumstances of the transaction. While there may be some doubt as to the accuracy of the statement of the cashier when considered in connection with the relation between the two banks and the custom and practice prevailing between them as to similar deposits, yet we are inclined to tbe view that the cashier’s testimony was correct, and that he truthfully could not have testified otherwise.

Under ordinary conditions and in the usual course of business we have every reason to believe that the Second National Bank upon refusal of payment of a check received by it, as this Enright check was, would immediately upon report that the check was not honored by the bank upon which it was drawn, cancel any credit that might have been given the depositor of the check and charge same to his account.

We think, therefore, that, the acceptance of the check and credit given the Metropolitan by plaintiff, were conditional. In other words, it was received “for collection” as the cashier said, and no such title vested in the plaintiff as is claimed in this case and as would entitle it to sue Enright thereon. The transfer of the check to the plaintiff was not, therefore, a negotiating of it but rather a bailment.

If, however, it was negotiated “for value,” then plaintiff had notice of indorser’s defective title, and took the check not “in due course,” but subject to all the defenses which are available to Enright as against the original holder.

Upon the admitted or uncontroverted facts of the ease the court below might well have instructed a verdict for defendant.

Its judgment will be affirmed.

Jones (O. B.) and Gorman, JJ., concur.


source: Caselaw Access Project

author: NIMAN, J.

license: Public Domain

text:
    CORPORATIONS — EXECUTORS AND ADMINISTRATORS
    [Summit (8th) Circuit Court,
    December 2, 1912.]
    Marvin, Winch and Niman, JJ.
    Charles B. Raymond, et al., Exrs. v. Mary F. Perkins et al.
    1. Stock Dividends on Stock are Capital and Belong to Remainderman not Income for Life Tenant.
    When a will gives the income from an estate to a certain person for life, a stock dividend issued upon certain stocks belonging to the estate is capital and not income and does not go to the life-tenant, but to the legatees in remainder.
    2. Stock Dividends do not Increase Interests of Shareholders of Corporation.
    A stock dividend does not increase the interests of the shareholders in the property of a corporation; it is only new evidence of their interests.
    Appeal.

      Francis 8eiberling and J. B. Huber, for Mary F. Perkins and Mary P. Baymond.

      A. H. Cummins, for L. D. Brown.
   NIMAN, J.

This action was begun in the court of common pleas by the plaintiffs, as executors of the will of George T. Perkins, deceased, to secure a construction of said will on the matters hereafter indicated.

The principal question submitted to the court relates to the disposition to be made under the will of $80,000 par value of preferred stock of the B. F. Goodrich Co., received by the executors in the form of a stock dividend on 4,000 shares of the common stock of said company held by them under the will.

George T. Perkins, the testator, was a resident of the city of Akron, Ohio. He died on September 8, 1910, leaving surviving him Mary F. Perkins, his widow, Mary B. Baymond, his daughter, and certain grandchildren, who are the children of Mary B. Baymond. By the terms of the will and a codicil thereto, both duly admitted to probate in the probate court of Summit county, Ohio, the widow became entitled to receive, during her lifetime, the income on the “rest and residue” of the testator’s property left after certain portions thereof were otherwise disposed of and, upon the widow’s death, the daughter, if she survives her mother, is to receive such income during her lifetime. The words used in the will, descriptive of the income are: “Use, profit and income;” and those used in the codicil are: “Income, profits and proceeds.”

Upon the death of both the testator’s widow and daughter provision is made for the disposition of the rest and residue of the testator’s estate by dividing the same among the testator’s grandchildren.

Included in the residuary estate are the 4,000 shares of common stock of the B. F. Goodrich Co., of the par value of $100 per share, of which the stock dividend in question was received by the executors.

It appears from the agreed statement of facts before us that the B. F. Goodrich Co. is a corporation, organized under the laws of Ohio in 1880 for the purpose of manufacturing rubber goods; "that the company enjoyed great prosperity; that it has been the policy of the company since it was organized to use a large proportion of its earnings for increasing its plant and working capital and developing its business; that the surplus and profits of the company not used for cash dividends have been put into the business and from time to time stock dividends have been declared and charged against the surplus and profits; that the original capital stock was $100,000, which was increased by the sale of additional stock and the issuance of stock dividends so that in the year 1905 the authorized and outstanding capital stock was $5,000,000; that in 1906 the capital stock was increased to $10,000,000 and $5,000,000 thereof distributed among stockholders in the form of a stock dividend out of the accumulated surplus and profits of the company; that in 1910 the capital stock was increased to $20,000,000, the increase of $10,000,000 being in cumulative preferred stock; that in October, 1910, a stock dividend of twenty per cent, was paid in the preferred stock of the company to the holders of common stock and charged against surplus profits; that in November, 1910, after the payment of this stock dividend, there remained to the company a surplus and profit of $1,600,000; that on January 1, 1912, the company had in its surplus and profit account $3,700,000; that on January 17, 1912, the company again declared a stock dividend of twenty per cent, upon its common stock, payable in preferred stock, and after the payment of $2,000,000 in this preferred stock dividend it still had remaining in its surplus and profit account $1,700,000.

Out of the stock dividend declared on January 17, 1912, the executors received on the common stock held by them $80,000 of preferred stock. Jt is this stock dividend that is in controversy in this action.

The question, therefore, presented to the court in construing the will is, whether the preferred stock dividend of January 17, .1912, or any part thereof, goes to the widow, Mary E. Perkins, one of the life tenants under the will, or whether such dividend belongs to the corpus of the trust estate and goes to the remaindermen.

In our opinion no part of this stock dividend belongs to the life tenant, but the whole should be treated as belonging to the corpus of the trust estate.

In the absence of bad faith, a corporation has power either to distribute its earnings among its stockholders, in the-form of dividends, or to retain them and employ them in the conduct of the business as a part of its capital. Until distributed, such earnings are the property of the corporation and not of the stockholders.

The declaration and issuance of a stock dividend do not change the interest of stockholders in the corporate assets. Each stockholder has the same proportionate interest after the stock dividend is declared and paid, as before. As was said by Mr. Justice Grey in Gibbons v. Mahon, 136 U. S., 549 [10 S. Ct. 1057]:

“A stock dividend really takes nothing from the property of the corporation and adds nothing to the interests of the shareholders. Its property is not diminished and their interests are not increased. After such a dividend as before, the corporation has the title in all the corporate property; the aggregate interests therein of all the shareholders are represented by the whole number of shares and the proportional interest of each shareholder remains the same. The only change is in the evidence which represents that interest, the new shares and the original shares together representing the same proportional interest that the original shares represented before the issue of new ones.”

The testator must be deemed to have had in contemplation the power of the corporation to accumulate its earnings and employ them in the extension and improvement of its business. When he made provision in his will for the payment of the income on his investment in the stock of the B. F. Goodrich Co., his intention with respect to a stock dividend, such as is involved here, must be arrived at by considering that he acted with the lawful power of the corporation to appropriate its earnings to the enlargement of the business in mind.

The question before us has been considered in many other jurisdictions. There is great conflict in the views of the different courts which have considered the matter.

In the case of Miller v. Miller, 34 O. C. C. 43 (15 N. S. 481), just decided by this court, we have considered some of these conflicting decisions and have discussed the principles involved. We therefore deem it unnecessary, in this opinion, to review the authorities, or to discuss at any considerable length the principle which we conceived should control in deciding the question before us.

The language in Bryan v. Aikin, 10 Del. 1 [82 At. 817], decided by the Court of Chancery of Delaware, April 1, 1912, where the rule which we adopt here was approved, expresses our view. On page 823 in the opinion it is said:

“The rule here adopted has merit, not only as being concededly simple and direct, but represents a logical conclusion from established premises. It gives weight to. the action of the company, because the corporation has the power to settle the premises upon which the question is to be decided. It avoids an investigation into the transactions of the company to determine the period within which the earnings were made and on numerous occasions it has been pointed out bjr courts which have rejected the apportionment rule of Pennsylvania that this is always troublesome, usually expensive, seldom satisfactory and sometimes practically impossible, as in the case of a foreign corporation. Of course, these references to some of the difficulties of adopting a rule as to apportionment according to when the earnings were made in whole or part, during the life of the testator, or wholly or partly thereafter, do not apply in the case at bar, because it affirmatively appears that all the earnings represented by the stock dividend in question were made since the life tenancy began. Still, a plain, simple rule is sought, and one that is workable in all cases, to prevent controversies and to guide in the administration of other estates respecting other-distributions of capitalized earnings. . The rule has been criticized because it gives too much weight to the action of the corporation, but this is a necessary result of the character of the investment and of the necessary power of the corporation respecting the management of the assets of the company. The rule here adopted is clear, easily applied and logical, and as fair to present interests as the nature of the case will permit, in view of the corporate control of corporate property.”

Another question propounded in the petition is whether the costs and expenses of a certain former suit brought to obtain a construction in certain respects of the will of the testator should be paid by the plaintiffs out of the income, profits and proceeds of the trust estate, or out of the body or corpus of the trust fund.

No argument has been devoted to this feature of the petition and we will devote no time to its consideration, beyond indicating that the same direction will be entered as to this matter that was given in the court of common pleas.

Marvin and Winch, JJ., concur.


author: MARVIN, J.

text:
    JUDGMENTS — NEGLIGENCE—PLEADINGS
    [Cuyahoga (8th) Circuit Court,
    November 18, 1912.]
    Marvin, Winch and Henry, JJ.
    Smeed Box Co. v. Elizabeth Lawson et al.
    1. Amendments of Pleadings to Conform to Proof, not Prejudicial to Adverse Party, Permitted.
    The allowing of amendments to a petition to make it conform to the proof rests in the sound discretion of the court, and, when it does not appear that the defendant was taken by surprise, or that he was unprepared to meet the issue tendered by the amendment, he is not prejudiced thereby.
    2. Recovery against One of Two Sued for Joint Tort.
    When two or more are sued and a joint tort is alleged, a recovery may be had against one of the defendants only.
    3. Defendant Liable for Negligence Though Other Causes Contribute to the Injury.
    An action for injuries resulting from defendant’s negligence is not defeated by the fact that other agenceis operated in concurrence with .defendant’s negligence to put the forces in motion which resulted in plaintiff’s injuries.
    Error.

      Guihery <& Guihery, for plaintiff in error.

      H. F. Payer and Squire, Sanders & Dempsey, for defendants in error.
   MARVIN, J.

Elizabeth Lawson brought suit against the Smeed Box Co. and the Cleveland Ry., and recovered a judgment against the Smeed Box Co. The railway was dismissed from the ease by order of the trial court, and no claim of error is made here because of such order, as between Elizabeth Lawson “the plaintiff” and the Smeed Box Co., spoken of as “the defendant.”

The action was brought to recover for injuries which the plaintiff claimed to have received on June 5, 1911, while she was riding as a passenger on a car of the Cleveland Ry., a corporation, in the city of Cleveland.

In her petition she says that the defendant, the Smeed Box Co., is a corporation, and she charges as against it, that one of its delivery wagons was in charge of one of its servants, who negligently drove the horse attached to said wagon in such wise that it collided with the car in which she was riding, breaking in the side of the car at her back and thereby causing serious injury and great pain to her.

To this petition the defendant answered admitting that the railway company operated cars in the city of Cleveland, and that on June 5, 1911, one of its wagons, in charge of one of its servants, was being driven in the prosecution of its business, upon the streets of the city of Cleveland; that it is a corporation and that the Cleveland Ry. is a corporation,and denying every other allegation of the petition.

In this state of the pleadings the case went to trial and it was shown that on the day named there was a collision between the wagon of the defendant and a car of the railway company on Prospect avenue, in the city of Cleveland; that the plaintiff was a passenger on such car at the time of the collision; that the force of the collision was such that the side of the car, immediately at plaintiff’s back, was crushed in to some extent and the windows broken; that the seats of the car ran lengthwise along the side of the car, so that plaintiff’s back was against the side of the car.

It was admitted by the defendant that Prospect avenue, at the place where this collision occurred, is a down-town section of the city and is much used and traveled, a busy section of the city. The evidence certainly tended to show that the plaintiff was injured by this collision; indeed, there could be no doubt from the evidence that she was injured to some extent, at least.

The driver of the horse testified that he was driving to the west; that his wagon for the carrying of boxes liad sides extending out in a slanting manner above the wheels and beyond the wheels; that the sides extended out between two and three feet; that it was about twenty feet long; that the distance between the wagon and the ear, if they had met while his wheels were in the track, would have been 6.9 inches.

The car was going to the east, not traveling fast; that he was driving to the west with the wheels of his wagon in the north track of the street railway company. There were automobiles and other vehicles in the street at the sides. As he was approaching the car, which was coming toward him from the west, his horse shied or jumped toward the south, that is, toward the track on which the car was approaching him, thereby taking his wheels out of the car track and causing the collision.

Being asked to tell just what happened when the horse jumped, he says:

“Well, no more than the exhaust came out of that automobile then he jumped into that car.”

On cross-examination he said that the automobile, of which he spoke, was twenty or thirty feet away, and when they started to crank it the horse jumped over towards the street ear. Then this cross-examination continued in these words:

“Q. You mean a lot of smoke came up behind the car? A. Yes.
“Q. Was there any noise? A. Just like a bullet some of them cars make.
“Q. Was it as loud as a shot gun? A. It couldn’t have been quite that loud.
‘1Q. But there was a loud report when the auto started up ? A. Yes.
“Q. But there was a cloud of blue smoke came up when the auto started? A. It went down, it didn’t go up.”

• He says, further, he was driving toward the auto and it was standing at the curb. Clearly what he meant is that the auto was at the curb and was further west than he was.

Attention is called to this evidence, because it is urged that from this it clearly appears that the proximate cause of the accident was this noise made by the auto, and that if such is the case, the defendant can not be held liable, even if there were negligence on its part. Something will be said on this point later in this opinion.

During the introduction of the plaintiff’s evidence in chief questions were asked by counsel for plaintiff as to what the characteristics of the horse, driven by defendant’s servant at the time of the accident was, as to being accustomed to shy and scare at things in the street. These questions were permitted to be answered over the objection of the defendant. At this time there was no allegation in the petition as to such characteristics of the horse. In answer to these questions answers were given tending to show that the horse was what is called “scary,” easily frightened and likely to shy and jump at objects frequently met with in the city streets; that in addition to being “scary” there were sores on his back and shoulders, tending to irritate him and make him more untractable than he otherwise would have been.

At the close of the plaintiff’s evidence she was allowed, over the objection of the defendant, to file an amended petition instanter. This amendment added to the original charge of negligence the following:

“That the said the Smeed Box Co. recklessly and negligently provided for its said employee a horse aforesaid that was vicious, unmanageable, ungovernable, uncontrollable, and liable to shy in the presence of automobiles, papers and objects of whatsoever description.”

The defendant then asked leave to refile the original' answer, which leave was granted. The defendant then moved the court to direct a verdict in its favor, which was overruled and the defendant, without any suggestion of being taken by surprise by the admission of the evidence as to the horse, or as to the ease made in the amended petition, proceeded to introduce evidence on its part.

The action of the court in allowing the amendment is fully justified by Sec. 11363 G.C., which provides that the court may, before or after judgment, allow a pleading to be amended conforming the pleading ' to the facts proved. The allowing of amendments to pleadings is in the sound discretion of the court and where it does not appear that the' defendant was taken by surprise or was unprepared to meet the issue tendered by' an amendment, there can be no prejudice, Cincinnati Trac. Co. v. George, 32 O. C. C. 403 (13 N. S. 209). On this Subject generally see Clark v. Clark, 20 Ohio St. 128, and other cases cited in note to the' code section above referred to.

Earlier in this opinion attention was called to the claim made by the defendant that if the plaintiff was injured from an act to which the noise made by the automobile directly contributed, there could be no recovery against the defendant in this action.

In support of this our attention is called to Billman v. Indianapolis, C. & L. Ry., 76 Ind. 166 [40 Am. Rep. 230]. This case simply holds that a petition which states that where by the reckless and careless manner in which a locomotive and train of cars are handled, a team of horses is caused to run away and injure a party not connected with the team, the railway company is liable. To the same effect is McDonald v. Snelling, 96 Mass. (14 Allen) 290 [92 Am. Dec. 768].

There is no suggestion in any of the cases cited on this proposition that there may not be concurring negligence on the part of the owner of the team. Suppose a locomotive engineer carelessly and negligently sounds the whistle of his engine and thereby causes a horse to run away and injure an innocent onlooker, and suppose the horse which thus runs away was left standing unhitched near a railroad, where trains were likely to pass, can it be doubted that both the owner of the horse and the railroad company might be liable?

It is further urged that as the petition charged both the railway company and the defendant with negligence concurring to cause the injury, that no recovery could be had against one unless the negligence of both were established. In support of this attention is called to Cleveland C. C. & St L. Ry. v. Eggman, 71 Ill. App., 42, and St Louis, B. & S. Co. v. Hopkins, 100 Ill. App., 567. Both of these cases and other Illinois cases seem to support the proposition claimed. The same proposition is stated in Wiest v. Electric Trac. Co., 200 Pa. 14 [49 Atl. 891] and in other Pennsylvania cases, the court citing the Illinois cases in support of the proposition.

This, however, is not the general rule. ■ Cooley on Torts, Vol. 1, page 156, says:

“Though two or more are sued and a joint tort alleged, the general rule is that a recovery may be had against one only, but a different rule is held in Pennsylvania. ’ ’

It is sufficient to say that the rule in Ohio is that stated as the general rule by Cooley. Mead v. McGraw, 19 Ohio St. 55; Reugler v. Lilly, 26 Ohio St. 48.

The defendant requested the court to give in charge to the jury seven separate propositions. There was no request, howver, that any of these be given before the argument of the case.

Of these propositions the court refused the first four, and gave to the jury the remaining three. For reasons given in the discussion of the last two questions, hereinbefore discussed, the court was justified in refusing the first four requests.

The charge as given, including the three propositions given at the defendant’s request, submitted the case to the jury as favorably for the defendant as it was entitled to have it submitted. There was no error to the prejudice of the defendant in the charge as given, or in the refusal to charge as requested. There was no error to the prejudice of the defendant in any admission or rejection of evidence, or in permitting the petition to be amended as hereinbefore set forth.

Within the time fixed by law the defendant filed its motion for a new trial, which was overruled. One of the grounds for the motion raised the question of the sufficiency of the evidence.

We are of opinion that the jury might well have found that the defendant was negligent both in furnishing the horse and in the manner in which the driving was done. Certaintly it is a long way' from being manifest that the jury came to a wrong conclusion as to the negligence of the defendant. Happily this is one of the few negligence cases where the plaintiff is not charged with any negligence, either causing or contributing to the injury which she received, nor do we think, under the evidence, the damages allowed were excessive.

, Another ground stated in the motion for new trial was that of newly discovered evidence. In support of this ground, the affidavits of two medical men were filed, to-wit, Dr. Walter H. Rieger and Dr. W. F. Hribal, and affidavits of attorneys as to how defendant’s counsel had learned of these witnesses and what they knew of the case.

On this ground of the motion, this may be said:

First. It appears that both medical men were passengers in that car with the plaintiff when she was injured, and that it would' seem as though, by diligence, their testimony might have been produced at the trial.

Second. It nowhere appears that the affidavits attached to the bill constitute all the evidence offered on the motion.

Third. The statements made in the affidavits of the medical men are not sufficient to sustain the motion.

This motion was properly overruled, and the judgment is affirmed.

Winch and Neman, JJ., concur.


author: MEALS, J.

text:
    CONTRACTS — EVIDENCE
    [Cuyahoga (8th) Circuit Court,
    December 23, 1912.]
    Marvin, Winch and Meals, JJ.
    Baker Motor Vehicle Co. v. Albert H. Price et al.
    Parol Evidence of Conversations Preceding the Making of Written Contract Admissible to Interpret but not Alter Written Terms.
    When words in a written contract are susceptible of more than one meaning and are open to more than one reasonable construction, depending upon the sense in which they were used by the parties, parol evidence of conversations preceding the making of the contract, which neither alter nor add to the written contract, but merely enable the court to ascertain the subject-matter referred to therein, are admissible in evidence.
    Error.

      H. II. & M. B. Johnson, for plaintiff in error.

      Kline, Tolies & Worley, for defendants in error.
   MEALS, J.

Albert II. Price and Walter D. Price, partners trading in the firm name and style of Price Brothers, on or about May 22, 1905, entered into a contract with the Baker Motor Vehicle Co., as its agents for the sale of its products in the city of Cleveland. The contract provided that it should continue in force and operation for the period of five years from its date, unless dissolved as stipulated therein.

The contract provided several methods of terminating its operation, one of which gave either party the right to terminate it upon giving four months’ notice, in writing, to the other party. The contract further provided that “in the event of this contract being severed by any of the .clauses named therein, the Baker Motor Vehicle Co. is to purchase the new stock of machines' and parts on hand at invoice prices, and such machinery as they may have purchased specially for the conduct of this business, at a fair valuation.”

Price Brothers, in the exercise of their right under the contract, terminated it by giving four months’ notice, in writing, to the Baker company, and the Baber company thereby became obligated to purchase the new stock of machines and parts on hand at invoice prices, and such machinery as they had purchased specially for the conduct of the business, at its fair valuation.

The principal question, therefore, involved in this controversy relates to the meaning of the phrase, “new stock of machines.” Price Brothers claim that the phrase was intended to include all unused machines of the Baker company manufacture which they had on hand, without regard to how long the same had been on hand. On the other hand, the Baker company contends that the phrase “new stock” referred only to machines of the current year which the plaintiff had on hand when the contract was terminated. No dispute was raised as to the correctness of the amount of the claim of the plaintiff in the court below, the only question being their right to recover for new machines which they had on hand other than those of the current year, or the year in which the contract was terminated.

At the trial of the case evidence was admitted of conversations had prior to the making of the contract, which tended to show the sense in which the parties intended to use the phrase “new stock.” It is contended by the Baker company that this evidence was incompetent and should have been excluded. This leads us to a brief consideration of what is known as the parol evidence rule.

Evidence, of course, may not be received to vary, modify or contradict the terms of a written contract. This evidence, however, was not offered for that purpose, but rather to show the meaning which the parties themselves attached to the phrase “new stock” for the purpose of arriving at the intention of the parties at the time of making the contract.

The rule has frequently been laid down in the adjudicated cases that no evidence of the language employed by the parties in making the contract can be given in evidence, except that which is furnished by the writing itself. It is obvious, however, that in numerous cases much greater latitude has been given to the introduction of parol evidence that is implied in this statement. All the authorities recognize the general rule, of course, that the written contract must govern, and .that proof of the acts, situation and statements of the parties can have no other effect than to ascertain the meaning of the parties as expressed in the writing. Where the language of the writing is clear and unambiguous there is no room for construction and the language of the instrument will control; but where the language of the writing reasonably admits of more than one construction, the rule is otherwise. In such parol evidence may be offered to show the sense in which the language was used by the parties themselves, in order that the true intention of the parties may be ascertained and not to vary, modify or contradict the terms of the contract, but rather to give force and effect to it..

Jones, Evidence, Sec. 456, says:

. “The real difficulty arises in determining in each case whether the language of the instrument is ambiguous, as shown either by the context or by the circumstances attending the making of the same. If no such ambiguity exists, evidence can not be received to show the secret intention of the parties, or that other than the natural and primary meaning of the language used was intended. ’ ’

The first question, therefore, to be determined is whether the language of the contract, on a construction of which this case depends, is ambiguous or reasonably open to more than one construction. Ordinarily the meaning of the words “new stock,” in a contract like the one before us, would be plain. It is only by reason of the circumstances attending the making of the contract that any uncertainty arises in this instance. It is claimed by the Baker company on the one hand that the term “new stock” had a definite trade meaning, which confined the words to the stock or model of the current year. On the other hand, Price Brothers sought to offer evidence of conversations had between the parties at or about the time of the making of the contract, tending to show that the parties intended the words to in* elude all new machines of the Baker company manufacture, which they had on hand at the time of the termination of the contract.

In this situation the words' “new stock” are clearly susceptible of more than one meaning, and are open to more than one reasonable construction, depending upon the sense in which they are used by the parties.

The object, therefore, in admitting the evidence complained of, to use the language of the Supreme Court of this state in another case, was not to vary, but to develop the meaning of the contract, by ascertaining the sense in which the words were intended to be used.

In Baldwin Quarry Co. v. Clements, 38 Ohio St. 587, 591 [43 Am. Rep. 442], the court approvingly quotes Lord Campbell as follows:

‘ ‘ There can not be the slightest objection to the admission of evidence of previous conversations, which neither alters or adds to the written contract, but merely enables us to ascertain what was the subject-matter referred to therein.”

In the case which Lord Campbell had under consideration the subject-matter was shown by extrinsic evidence to be uncertain, and oral evidence was admitted to fix and ascertain the meaning of the term “your wool.”

So, the subject-matter of the case which we now have under consideration, as shown by the circumstances of the transaction, is uncertain, and because of this uncertainty its meaning is in dispute. It must therefore follow that parol evidence was admissible at the trial to show in what sense the words “new stock” were used in the Avritten contract. This does not tend to vary the terms of the writing. “It simply enables the court to ascertain what its terms mean and to construe and enforce it as the parties intended. ’ ’

In our opinion no error was committed in admitting evidence of this character.

There being no error in the admission of evidence to show the sense in which the parties used the term under consideration, there, of course, was no error in submitting the question to the jury.

The judgment of the court below is therefore affirmed.

Marvin and Winch, JJ., concur.


text:
    MASTER AND SERVANT — NEGLIGENCE
    [Cuyahoga (8th) Circuit Court,
    December 23, 1912.]
    Marvin, Winch and Meals, JJ.
    Ohio & Western Pennsylvania Dock Co. v. Isaac Trapnell.
    1. Failure to Provide Proper Means of Communication between Operatives and Workers around Machinery Question for Jury.
    When an engineer whose duty it is to oil machinery is not provided with any means of keeping the machinery stationary while oiling it, nor with speaking tubes, telephones or other means of communication with those in another room who control the machinery, and no rules are promulgated relative to such communication, and the engineer is injured while oiling a machine, whose operator to his knowledge had left the premises, but which was started by the operator of another machine; the question of whether or not the employer was negligent in failing to provide proper means of communication between the engine room and the operating room and in failing to formulate reasonable rules to protect the engineers against the starting of the machinery, is for the jury.
    2. Masters’ Negligence Question for Jury, When.
    The master’s negligence is a question for the jury, whenever it is warrantable to infer from the evidence that the injury would not have been received if a certain instrumentality or method had been substituted for that actually adopted by the defendant, and that this alternative instrumentality or method was one commonly used by other employers in the same line of business under similar circumstances.
    3. Evidence of All Circumstances Attendant upon Accident Admissible in Personal Injury Case.
    It is not prejudicial error in a personal injury case to admit evidence of all the circumstances attendant upon the accident even though it does not tend to prove qny fact in issue and presents a gruesome detail of the accident to the jury.
    4. Qualification of Expert Preliminary Question Discretionary to Court.
    The competency of a witness to qualify as an expert is a preliminary question for the trial court and rests in the discretion of the court, and, unless founded on some error of law or on serious mistake, or abuse of discretion, the ruling is not reversible.
    5. Cross Examination as to Usage or Custom not Precluded by Party Calling Witness Failing to Examine.
    The fact that the party calling a witness did not examine him as to a usage or custom which would be material to the case on trial, does not preclude the other party from cross-examining him as to the existence of such usage or custom.
    Error.

      Hoyt, Dustin, Kelley, MeKeehan & Andrews, for plaintiff in error.

      Ewing, Counts & Terrel and Harry F. Payer, for defendant in error.
   MEALS, J.

At the time of the injury complained of in the petition filed in this case, Isaac Trapnell was employed by the Ohio & Western Pennsylvania Dock Co. as an engineer at what was known as No. 3 Engine and Hoist House, located on the company’s docks on Whiskey Island, in the city of Cleveland. The engine room where Trapnell was employed at the time of the accident complained of, was separated from the hoist room where the operators of the engines were stationed. The engine room was on the ground floor, and contained three engines, called the single pier, middle pier and blind pier engines. The hoist room was located immediately above the engine room and separated from it by a distance of about twenty-five feet.

Trapnell, the engineer, had nothing to do with operating the machines. His duty consisted principally in oiling the machinery in the engine room and in keeping up steam. The engines were operated by separate operators, one for each machine, from the hoist house.

At the time of the accident only one of the machines was in operation; one of the others had been in operation but was stopped for repairs. The control of the engines was effected by means of rods running from the machinery in the engine room to the hoist house, where they were connected with levers. There were three of these levers for each machine. One of them is described in the record as “a foot brake, or foot pedal, four feet long. By pressing it down and fastening it with a pin put through a U-shaped iron, the machinery is held stationary until released.”

This lever connects with the brake on the drum of the machine and when set as described above prevents the drum from turning.

. Another lever is described as a hand lever, by means- of which .the friction gear is brought into play and the drum made to revolve.

The third lever opens and closes the steam throttle. All these levers are necessary in the operation of the machines.

On November 26, 1910, the day of the accident, an operator by the name of Norton was put to work in the hoist house on what was called the single pier engine, and a man by the name of Grabowsky was put to work on the middle pier engine.

Just before the accident Grabowsky stopped the middle pier engine and left the hoist house by means of a ladder, to go to the machine shop some 600 feet away. As he descended the ladder he saw Trapnell and told him that he had broken down and that he was going to the machine shop and would return shortly, to which Trapnell said all right. Before leaving the hoist room, however, Grabowsky adjusted the drum brake by pinning it down, as above described, so that the drum would be held stationary. Grabowsky also closed the throttle of his engine and threw the friction gear out.

It was a part of Trapnell’s duty to keep the drum oiled. He was in the habit of doing this two or three times a day. He says that he oiled the drum “whenever he got a chance,” or when the “operator was not working.” Originally the machines were oiled by means of a pipe about two feet long running through the meshes of the gear wheel into the hub, and the oil was poured into this pipe from outside the gear wheel. The pipe was taken off later and a hand oil cup, called a ‘ ‘ dope cup, ’ ’ was installed instead. To reach this cup, as was necessary in refilling it or in screwing it down so as to give the required amount of oil or grease to the part oiled by it, it was necessary to put one’s hand in between the spider or crab and the gear. The machine being shut down and the operator thereof having left the hoist house, Trapnell considered it an opportune time to adjust the dope cup. He saw that the brake was on and he himself shut off the steam, and, he says, “everything was fixed stationary.” He then put his arm in between the spider or crab and the gear “to screw the dope cup down.” At that moment Norton, who was operating the single pier engine in the hoist house above, “noticed that the counter-weight on the middle pier engine (the engine ■that .Grabowsky had been operating) was -in his way and obscured his view of the men shoveling below. ’ ’ He thereupon left his own levers, momentarily, and released the brake on Grabowsky ’s engine, as, he says, “by pulling out the pin and letting up the brake with his foot.” The brake of the drum having been released the counter-weight caused the drum to revolve and Trapnell’s left arm being caught between the crab and gear, was cut off. The severed portion was found, a few moments later, by Grabowsky inside the drum, “down by the dope cup at the end of the drum next to the gear-wheel. ’ ’

The evidence disclosed that neither speaking tubes, telephones nor other means of communication had been provided between the engine room and the hoist house. Also that no rules had been made and promulgated by the defendant as to the method of communication between the engineer and the operators ; also that no means had been provided, which were within-the control of the engineer, of holding the machinerj'- stationary while it was being oiled.

The plaintiff relied principally upon these facts and the facts surrounding the removal of the grease pipe, formerly in use, and the installation and maintenance of the dope cup instead thereof, in the manner described by the evidence, to support his claim of negligence against the defendant.

The court submitted all of these claims to the jury, to which the defendant takes exception, “not by virtue of the things said in the charge upon the given subject-matters,” to use the language of the defendant’s counsel, “but rather because the jury should have been told that these subject-matters were not at all for their consideration, because under the evidence in the case there was nothing to warrant the court in submitting any such subject-matters to the jury.”

Specifically, counsel for the defendant object to the charge of the court, first, that the court charged the jury on the subject of defendant’s failure to provide a means of direct communication between the plaintiff and the hoisters in the house above Mm. They say:

“It was alleged as a specific ground of negligence in the petition that the defendant failed to provide a means of direct communication between the plaintiff and the hoisters in the hoist room above him. Under the evidence this failure was not at all a proximate or contributing cause of the injuries which he received and for the very simple and all-sufficient reason that the evidence, as has been pointed out, clearly shows that plaintiff would not have used any device which had been installed. ’ ’

In answer to this contention it might be observed that the issues in a case ordinarily are made up by the pleadings, as they were in this case, and in this respect we find nothing in the evidence which changed them at the trial. It is true that the evidence showed that the plaintiff was in the habit of rapping with a monkey wrench, or other instrument, on the iron rods running from the engine room to the hoist house, whenever anything was wrong with any one of the engines, or when for any reason he wanted an engine stopped, and he admits that at the time of the-accident he did not rap on the rods, but gave as his reason for not doing so, that he knew that the machine on which he was afterwards hurt was stopped, and that its operator, Grabowsky, had left the hoist house.

Counsel for the defendant urge that these facts “clearly shoAv that the plaintiff would not have used any device had it been installed. ’ ’

In our opinion this does not necessarily follow from these facts. Had some means of communication been provided by the defendant, the plaintiff may have used it and he may not have done so; but had the defendant, in addition to providing such means of communication, made some reasonable rule as to its use by the engineers before attempting to work about the machinery, it is entirely probable that the plaintiff would have obeyed the rule. In any event, it is not so much a question, in our opinion, of what the plaintiff would have done under different conditions, as it is what the defendant should have done for his protection under present conditions. Certainly it can not be said, as a matter of law, that the plaintiff would not have used the means of communication or the rule prescribed as to the use thereof, had such been provided. The question, therefore, was properly submitted to the jury.

Second. Counsel for the defendant urge that the claim of negligence made by the plaintiff, that the “defendant failed to make and formulate reasonable, necessary and proper rules for protecting the plaintiff against the starting up of the machinery,” had no place in the case, and that an instruction to the jury by the court thereon was erroneous.

This claim of the defendant is based, not upon the ground that the charge of the court on this subject was erroneous had it been given in a proper case, but that no instruction whatever should have been given on the subject in this case. They base this contention upon the fact that since the 80’s the system of rapping upon the pipes “was in vogue and in full use upon that dock.”

The fallacy of this contention is readily seen. In the first place, the origin of the system of signalling by rapping is not disclosed by the record. It may have originated under instructions from the defendant and it may have been the invention of the defendant’s employees themselves, for their protection. But suppose this method of signalling was adopted and its use directed by the defendant and amounted to a rule for the guidance of the defendant’s employees in working about the machinery and had been used by the defendant’s employees, as claimed by defendant’s counsel, since the 80’s, the question of whether such rule, even if it amounted to a rule in law, was a reasonable and proper rule under the circumstances of this case, would still be open, and its submission to the jury under the evidence of this case was proper.

Third. The plaintiff’s petition alleged that the defendant failed to rise ordinary care in furnishing machinery with a proper oiling device. The court submitted this question to the jury for its determination.

Counsel for the defendant do not contend that the language of the court in submitting this question was improper or erroneous, but claim that the jury was not warranted in finding against the defendant on'this proposition.

For anything that the record or the verdict discloses; which has come to our attention, we do not know that the jury found against the defendant on this proposition alone. The jury may have found that the negligence consisted in the failure of the defendant to provide reasonably adequate means of communication between the engine room and the hoist house, or in the failure of the defendant to prescribe reasonable rules and regulations as to the method of communication between the engine room and the hoist house, or that it failed to provide the means of holding the machinery stationary while its employees were working upon it, or that it failed to use ordinary care in furnishing machinery with a proper oiling device, or based their verdict on a combination of these.

We are not unáware, of course, that counsel for the defendant claim that the subject of direct communication and the subject of rules had no place in the case, and that the jury should have been so instructed. In their brief, however, they substantially admit that if these subjects were properly submitted to the jury, there is nothing in the contention made under this heading. Having arrived at the conclusions as to these subjects above stated, we do not believe this contention is well founded.

Counsel for the defendant contend that the court erred at the trial in admitting certain evidence. First, that the court erred in permitting the witness Grabowsky to testify that while he was returning from the machine shop to his place of work, he met Trapnell being escorted away by some men, and that he continued on over to the engine room where he found the plaintiff’s arm inside the drum.

Objection was made to this testimony on the ground that it did not tend to prove anything in issue in the case, and only served to present a gruesome picture to the jury to the prejudice of the defendant.

The story of the loss of the plaintiff’s arm had already been told and we doubt whether the additional statement as to the finding of the severed arm in the drum heightened the color of the picture thus made in the eyes of the jurors; but whether it did or not, and although it might as well have been omitted, the fact so testified to was one of the facts of the transaction in which Trapnell lost his arm and was inseparably connected.with it. We know of no rule which makes its admission erroneous,, even under an admission by the defendant of the loss of the arm. We think the plaintiff had an undoubted right, at least, to show all the facts and circumstances attendant upon the accident, and that in admitting this item of evidence the defendant was not prejudiced thereby.

It was also urged at the trial by the defendant that the witnesses Tomilty and Trapnell, Jr., a son of the plaintiff, had not qualified so as to be competent to give testimony on the subject of usage and customs as they relate to devices for holding in a stationary position the drum of a hoisting machine while working about the same.

“When a witness is offered as an expert, it becomes a preliminary question for the court to determine whether he has the requisite qualifications, and for the purpose of determining this question, the witness himself may be examined as to his opportunities and means of knowledge of the subject under inquiry.
“In determining the question in any given ease, the court has first to decide, whether the subject is one upon which the opinion of an expert can be received, and also what are the qualifications necessary to entitle the witness to testify as an expert. It is the prevailing rule that the decision of the trial court as to the competency of the expert, is a preliminary question resting in the discretion of the court and unless founded on some error of law or on serious mistake, or abuse of discretion, this ruling is not reversible.” Jones, Evidence, Sec. 369 (371).

These objections, therefore, seem not to be well taken.

Defendants also objected that the witness Spooner, who was called by the defendant, was permitted to testify on cross-examination concerning the installation of speaking tubes on hoisting machinery as a means of communication between engineers and hoisters at various places where such machinery is used.

Counsel in their brief say that “the only thing that this evidence proved was that such devices could be installed.” If it proved this much, it would at least seem not to have been erroneously admitted; but it seems to us it was clearly admissible on other grounds.

■ It must be remembered that the witness Spooner was being cross-examined. His cross-examination was not limited by his examination in chief. It is the settled rule of this state that “the right of cross-examination is not to be limited by the particular facts disclosed in the examination in chief, but may be extended to whatever the party calling the witness is required to establish to make out and sustain his cause of action or his defense. Thus, a witness of the plaintiff may be cross-examined by the defendant touching all matters which it is competent for the plaintiff to prove under the issue in order to entitle him to recover, and on the other hand, the plaintiff may cross-examine the defendant’s witness to all matters which the defendant may prove under the issue in order to sustain his defense. ’ ’ Legg v. Drake, 1 Ohio St. 286; Bean v. Green, 33 Ohio St. 444.

In cross-examining Spooner, therefore, counsel for the plaintiff were not limited by the facts disclosed in his examination in chief. They also had a right to cross-examine him as to all matters which the defendant might have proved by him under the issues made by the pleadings.

In this view of the question, it is important to remember that the defendant may have shown that it conformed to the general usage on the subject-matter prevailing among prudent and skillful employers and in well regulated concerns. 1 Labatt, Master and Servant, Sec. 44, el seq.

The fact, therefore, that the defendant did not examine the witness as to usage did not preclude the plaintiff from examining him on that subject. Besides, it is said in Allison Mfg. Co. v. McCormick, 118 Pa., 519 [12 Atl. 273; 4 Am. St. Rep. 613], that “the general rule requires of the master that he provide materials and implements for the use of his servants such as are ordinarily used by persons in the same business. ’ ’

Whether or not this be the prevailing doctrine is unimportant. Suffice it to say that it is supported by numerous authorities of great weight.

Labatt, Master and Servant, Sec. 52, says:

“The master’s negligence is a question for the jury, whenever it is warrantable to infer from the evidence that the injury would not have been received if a certain instrumentality or method had been substituted for that actually adopted by the defendant, and that this alternative instrumentality or method was one commonly used by other employers in the same line of business under similar circumstances.”

This rule is applied both by the courts which do and by the courts which do not accept the doctrine that conformity to common usage is a conclusive defense.

In the same action the author observes that no declaration which shows a prima facie case of non-compliance with general usage is demurrable.

The plaintiff also was at liberty at the trial to show a noncompliance with general usage as to the subject-matter in question, and in what better way might the plaintiff show such noncompliance than by the cross-examination of the defendant’s witnesses qualified to speak upon the subject? In our opinion it was not error to admit this testimony.

Lastly, counsel for the defendant complain of the conduct of counsel for the plaintiff. '

While we fully recognize and appreciate the rule on this subject, as announced by the Supreme Court of this state in Cleveland, P. & E. Ry. v. Pritschau, 69 Ohio St. 438 [69 N. E. 663, 10 Am. St. 682], and in Hayes v. Smith, 62 Ohio St. 161 [56 N. E. 879], we do not believe that the statements and observations of counsel for the plaintiff in the course of the introduction of evidence at the trial, while they might properly have been omitted, amounted to such misconduct as would justify us in reversing the judgment in this case. We are not able to say, as a matter of law, that the jury was influenced by these statements to the prejudice of the defendant, or that they were of such a character as likely to have operated upon the minds of the jurors to the prejudice of the defendant.

We find no error in the record on which, in our opinion, a reversal of the judgment of the common pleas court would be justified, and the same is therefore affirmed.

Marvin and Winch, JJ., concur.


author: WINCH, J.

text:
    INSURANCE — TRIAL
    [Cuyahoga (8th) Circuit Court,
    October 21, 1912.]
    Marvin, Winch and Niman, JJ.
    American Assurance Co. v. Walter H. Early.
    1. Conditions Making Policy Void Matter of Defense.
    In an action upon a life insurance policy, the conditions precedent, the performance of which the plaintiff is required to plead, include only those affirmative acts which are necessary in order to perfect his right of action on the policy, such as giving notice and making proof of loss, furnishing the certificate of a magistrate when required by the policy, and, it may be, other acts of like nature. Conditions which provide that the policy shall become void, or inoperative, or the insurer relieved wholly or partially from liability upon the happening of some event, or the doing, or omission to do some act, are matters of defense, and to be available must be pleaded and their breach alleged.
    2. Statement in Renewal Application not Defense unless Fraudulently Made, Wilfully False and Material.
    A statement in an application for a revival of an insurance policy which has lapsed is within the purview of Sec. 9391 G-. C., and is not a defense to an action on the policy, unless the statement was wilfully false, fraudulently made, and material, and induced the company to renew the policy.
    3. Refusal, not Failure, to Give Proper Instructions Constitutes Error.
    Error consists not in the failure, but in the refusal to give instructions to which a party is entitled.
    4. Statement in Physician's Affidavit for Proof of Death not Competent for Other Purposes.
    Statements in a physician’s affidavit introduced in an action upon an insurance policy to make proof of loss, are not competent as evidence to establish an affirmative defense, as that the disease from which the insured died existed before the renewal of her policy.
    Error.

      Stearns, Chamberlain <& Boy on, for plaintiff in error.

      Wing, Myler & Turney, for defendant in error.
   WINCH, J.

Tbis is an action to reverse a judgment on an industrial insurance policy. It is claimed that three errors occurred on the trial; first, in not granting the motion of the Assurance Company to direct a verdict in its favor at the close of plaintiff’s evidence; second, in not properly charging the jury and third, in refusing to grant a new trial on the ground that the verdict was not supported by sufficient evidence, or was contrary to the weight of the evidence.

Early was the son and beneficiary of the assured, Martha Early, to whom a policy had been issued which she had permitted to lapse. On July 3, 1908, she applied for revival of her policy on a blank furnished by the company, as follows:

“American Assurance Company,
“Philadelphia.
‘ ‘ My policy No. 94244 having lapsed on the 19th day of May, 1908, I hereby make application for revival of the same, and warrant, that I am now in good health and physical condition, and there is nothing in my habits or physical condition which is likely to impair my health or shorten my life. And I agree that if this warranty shall be in any respect nntrne, my policy shall be treated in the same manner as if it had not been revived, upon the return to me of the premiums accompanying this application and hereafter paid. The revival upon this application shall be in all respects under and subject to the conditions of the policy, and shall take effect as of the date of the acceptance of this application by the secretary.
“Martha Early.
“I have received from the above applicant the sum of $1.80 premiums on account of the above application for revival.
“Date July 3, 1908, Collector, Jno. Z. Jones.”

She died October 22, 1908, and proof of death was duly made on November 9, 1908. This proof of death consisted of a sworn statement of the beneficiary, a sworn statement of the attending physician and one from the undertaker.

The beneficiary, Early, among other things, stated as follows :

“3. The date of beginning of the disability was April, 1908.
‘ ‘ 10. The physician first called on account of the disability which caused death, in April, 1908.”

The attending physician, G. W. Stevenson, M. D., among other things, stated as follows:

“9‘ (a) Date of your first visit or prescription in last illness? April, 1908.
“(b) Date of your last visit ? October 22, 1908.
‘ ‘ 10. Cause of death, immediate ? Cancer of lung.
“11. Cause of death, remote? Exhaustion from the suffering.
“12. State the duration of illness (a) From personal knowledge? From April, 1908, to October 22, 1908. (b) From history of case? About 8 months.”

The policy, among other things, contained the following conditions :

“If this policy shall be revived after having lapsed it shall not cover death from any source originating prior to the revival thereof.
“The insured waives all legal objections to medical testimony of any and every kind, and authorizes his attending physician to make statements regarding the cause of death, which statements shall be competent evidence on behalf of the company in any suit upon this policy.
“Affirmative proofs of death must be furnished the company, and must contain full, complete and true answers to all questions on blanks furnished by the company for that purpose. Final proofs must be furnished by the company within one month from the time of death. The claimant must establish affirmatively by such final proofs that the death was such as is not excepted by the terms of this policy before indemnity hereunder is payable.”

Because the proofs of death apparently disclosed that the assured died of a cause originating prior to the revival of the policy, the company refused to pay and this suit followed.

The company filed an answer to the plaintiff’s petition admitting the issuance of the original policy, and that the said Martha Early died on October 22, 1908, but denying all other allegations of the petition, among others “that the said Martha Early-and plaintiff have duly performed all of the conditions contained- in said policy to be performed by them. ’ ’

The answer then sets up the application for revival of the policy dated July 3, 1908, and states that at the time the insured signed said application for revival, she was suffering from cancer of the lungs and was in ill health, which fact was known to her, and that her statements and warranties as to her health were false, were known by her to be false, were not known by the company to be false, and it relied upon them and that the policy was voided by reason thereof.

Tender back of premiums paid is alleged also.

On the trial the company admitted the payment of all premiums and the plaintiff introduced evidence showng that proofs of death had been furnshed to and received by the company, and then rested.

Thereupon a motion to direct a verdict was made by the defendant, and it is urged that it should have been granted, because the plaintiff failed to prove the allegations of his petiton that he and the assured had duly performed all of the conditions of the policy, particularly the condition that the policy should not cover death from any cause originating prior to its revival.

This point is not well taken.

Speaking of a fire insurance policy, and the rule is the same in life policies, the Supreme Court says in the ease of Moody v. Insurance Co., 52 Ohio St. 12 [38 N. E. 1011; 26 L. R. A. 313; 49 Am. St. 699]:

‘ ‘ The conditions precedent, performance of which the plaintiff is required to plead in an action on such a policy, include only those affirmative acts which are necessary in order to perfect his right of action on the policy, such as giving notice and making proof of the loss, furnishing the certificate of the magistrate when required by the policy, and, it may be, other acts of like nature. Conditions which provide that the policy shall become void, or inoperative, or the insurer relieved wholly or partially from liability upon the happening of some event, or doing, or omission to do some act, are matters of defense, and to be available must be pleaded and their breach alleged.”

In this case the plaintiff proved the issuance of the policy, its revival, the payment of premiums, death of insured, and the furnishing of proof of death; this made a case which waS" to be overthrown, if at all, by proof by defendant that the death of the insured occurred from a cause originating prior to its revival.

The motion to direct a verdict for defendant was properly overruled.

As to the charge, complaint is made that the court treated the application for revival as containing an answer to an interrogatory, and, with regard to it, charged that Sec. 9391 G-. C. applied. That section reads as follows:

“No answer to any interrogatory made by an applicant in his or her application for a policy, shall bar the right to recover upon any policy issued thereon, or be used in evidence upon any trial to recover upon such policy, unless it be clearly proved that such answer is willfully false, was fraudulently made, that it is material, and induced the company to issue the policy, and that but for such answer the policy would not have been issued; and, also that the agent or company had no knowledge of the falsity or fraud of such answer. ’ ’

There was no error in this; the application was on a blank furnished by the company; it was in effect an interrogatory.

As the policy itself, however, contained a statement that if it should be revived after having lapsed, it should not cover deaih from any cause originating prior to its revival, the defendant was entitled to a charge that if the jury should find that the death of Martha Early was the result of a cause originating before July 3, 1908, then they must find for the defendant. Metropolitan Life Ins. Co. v. Howie, 62 Ohio St. 204 [56 N. E. 908]; Metropolitan Life Ins. Co. v. Howie, 68 Ohio St. 614 [68 N. E. 4].

No request for such a specific charge was made. The court however, seems to have covered the point in the following part of the charge:

‘ ‘ This lawsuit really turns upon the question of the renewal rather than upon the question of original policy.
‘ ‘ Item 2 in the conditions attached to the policy which was a part of the contract, is as follows: ‘If this policy shall become lapsed it may be revived by the Secretary upon written application by the insured on forms furnished by the company and the payment of all back premiums. Acceptance by the Secretary of such back premiums unaccompanied by such written application shall not be deemed a waiver of these requirements, but it shall be optional with the company to revive the policy or not. If this policy shall be revived after having lapsed, it shall not cover death from any cause originating prior to the revival thereof.’ ”

That is one of the conditions of the policy which is set up as a defense to this action. The question to be determined by yoii in this action is: What was the fact at the time this policy lapsed and was renewed ? The insurance company had the right to attach such conditions to their policies as they saw fit, and when a policy is accepted by an insured these conditions become a part of the contract and are binding upon the assured and upon the company as well.

The court goes on immediately afterward to treat of the force and effect of the application for a revival, and does not return to the conditions of the policy, but both matters were properly before the court for instructions to the jury and, the defendant having, left the matter without request for more specific instructions, it is too late now to complain of an omission to charge on this matter in the direct manner that doubtless would have been used by the trial judge if a proper request had been made of him.

‘ ‘ Error consists not in the failure, but in the refusal to give an instruction to which a party is entitled.” 'Whitaker v. Michigan Mut. Life Ins. Co., 77 Ohio St. 518, 522 [83 N E. 899],

•As to the weight of the evidence, there is more doubt.

As we have seen, it was incumbent upon the defendant to prove that Martha Early died of a cause originating before July 3,1908. The only evidence on this subject was the statements of the claimant and the attending physician contained in the proof of loss. The proof of loss was properly before the court on the issue of whether the claimant had complied with the terms of the policy and furnished them. The statements of the physician, however, were not competent evidence of the fact that the cause of death had originated before July 3, 1908, for they were ex parte, made out of court, and he was not present for cross-examination.

The condition in the policy that the insured waives all legal objection to medical testimony of any and every kind and authorizes his attending physician to make statements regarding the cause of death, which statements shall be competent evidence on behalf of the company in any suit upon the policy, if binding upon the beneficiary merely unseals the lips of a physician which are ordinarily closed by his confidential relations to his patient, and permits him to testify in court upon the cause of death; it does not make competent every statement the physician may make on the subject, on the street, or even in the proof of loss. Nor does the beneficiary so vouch for the truth of the statement made by the physician in the proof of loss that it binds him, for he is compelled to furnish a statement and can not control what the physician may state.

As to the statement of the beneficiary himself in answer to questions 3 and 10 in the so-called claimant’s statement, they are evidently based upon the physician’s statements to him, and while solemnly made by him in an affidavit furnished by him to the company, it may well be that the jury came to the conclusion that the company not having called him or the physician for examination before them, which it might well have done, it was doubtful of its own case and that they would have testified otherwise upon the stand.

The jury would have been warranted in drawing such a conelusion from the failure to call these or other witnesses and may have felt that there was not sufficient evidence before it to have the necessary preponderating influence in favor of the defendant’s contention.

We are unable to say that substantial justice was not done in this ease, and so the judgment is affirmed.

Marvin and Niman, JJ., concur.


text:
    DAMAGES — PLEADING
    [Cuyahoga (8th) Circuit Court,
    November 11, 1912.]
    Marvin, Winch and Niman, JJ.
    Royal Furniture Co. v. Frank S. Weist.
    1. Punitive Damages Awarded Only for Reckless Disregard of Rights of Injured.
    Punitive damages may be awarded when one in committing a wrong has so conducted himself with regard to another as to show a reckless disregard of such other’s right.
    2. Malice Pleaded by Facts Showing Reckless Disregard.
    When the facts set forth in a petition show a reckless disregard of plaintiff’s rights on the part of the defendant, malice is sufficiently pleaded to support an award of punitive damages.
    Error.

      A. A. Beneseh, for plaintiff in error.

      Ewing, Counts & Terrell, for defendant in error.
   MARVIN, J.

W.' •>>■? asked to reverse a judgment of the municipal court in this case, which wag obtained by Frank S. Weist,, hereinafter spoken of as the plaintiff, against the Boyal Furniture Co., a corporation, hereinafter spoken of as the defendant, which judgment was, upon proceedings in . error in the court of common pleas, affirmed.

Plaintiff claimed to recover against the defendant because of the alleged trespass of the defendant, through its agent, in coming into plaintiff’s home, and removing certain chattels therefrom, accompanying such removal with excessive force and violence.

The defendant admitted the entry into the plaintiff’s house, by its agent, and the removal of certain rugs and carpets therefrom, but claimed a right to make such removal on the ground that the rugs and carpets were the property of the defendant.

The plaintiff claimed that there was removed from his house other property, to-wit, some pieces of jewelry, but the removal of these is denied, and there is no evidence which would justify a finding that there was any jewelry removed. However, as already said, the carpets and rugs were removed. If they were the property of the defendant, it was because the conditions of a chattel mortgage, given upon said rugs and carpets by the plaintiff to the defendant at the time the rugs and carpets were purchased, had been broken, for they were purchased by the plaintiff from the defendant on or about August 28, 1911. It is claimed the defendant was, by the terms of said mortgage, authorized to take possession of the property upon condition broken.

This court is without the original bill of exceptions which was filed in the court of common pleas upon proceedings in error in that court, and in a substitute bill the chattel mortgage is not shown, but we believe this is because of the fact that the original mortgage is with the lost bill. But as we view the case, it is not necessary that we should have that mortgage here, because we have a bill which is sufficient for us to consider the case upon another proposition.

The plaintiff recovered a verdict in the court of common pleas for $289, but, as a condition for the overruling of a motion for a new trial, the plaintiff remitted $89 from the verdict, and judgment was entered for $200.

It is urged that this judgment should be reversed first, because it is said there was no evidence introduced showing the value of the goods taken.

There was no evidence tending to show the value of the jewelry taken, and, as has already been said, there was no sufficient evidence that any jewelry was taken. The only evidence as to the value of the goods is that the defendant sold the goods to the plaintiff in August, 1911, for $53; the goods were taken on December 14, 1911. Prior to December 14, 1911, the plaintiff had paid on the goods $10 and on that day while the goods were being taken from the plaintiff’s house the plaintiff’s wife was at the store of the defendant and paid $4 more on the purchase price. We think this is some evidence tending to show the value of the goods. But whether this be true or not this judgment is not to be reversed.

If the evidence on the part of the plaintiff was believed by the jury, and it well might be when taken in connection with the testimony of the defendant’s agent who removed the goods, the conduct of the agent removing the goods was such as to justify severe punitive damages. It is said that no punitive damages would be allowed in a case like this, because punitive damages can only be allowed where the conduct of a defendant is wilful and malicious, and it is said that the plaintiff in his statement of claim does not charge that what was done by the defendant was done with malice. This would seem to imply that the counsel understand that unless the word "malice” or "malicious” is used, there can be no charge of malicious conduct.

This is not correct. If the facts set out in the plaintiff’s statement of claim are true, then the conduct of the defendant’s agent in the taking of these goods was malicious in the sense in which that word is used in connection with the subject of punitive damages. One acts maliciously when he so conducts himself with regard to another as to show a reckless disregard of such other’s rights. The charge of malice was sufficiently set out in the statement of claim. The testimony of Daniel Barry, who was present in the home of the plaintiff when the goods were taken from the house, is to the effect that without any invitation on the part of anybody on the inside of the house to enter, an agent of the defendant entered the house and removed these rugs and carpets with the assistance of two other men, in such manner as to overset a chair in which there was a baby, throwing said baby onto the floor, disengaging the pipe of a gas stove in such wise as to allow gas in a large quantity to escape, without readjusting said pipe, so jarred or tipped a sideboard standing in part upon one of the rugs as to break dishes. In short, the whole conduct of the defendant’s agent in removing those rugs, whatever rights the defendant had in the rugs, and about this we need express no opinion, showed a wanton and reckless disregard for the rights of the plaintiff’s family. In his own testimony he says that he was told that the plaintiff’s wife had gone to the store of the defendant at that time to pay money on, the indebtedness for these rugs, and he said; “ it is too late. ’ ’ It turned out that it was not too late, for the defendant had accepted the money when she was at the store.

Reasonable conduct on the part of this collector, or agent, would have required that he communicate with the store before he proceeded further with the removal of these things. But even if it had been too late, if there had been no possible question as to the right of the defendant to take these goods, there can be no justification of the conduct of this agent in removing them, if the testimony of Barry is to be believed; and Ave are not surprised that the jury believed it as against that of the agent, when, by that agent’s testimony, as already shown, he Avas notified that the plaintiff’s wife had gone to the store to make a payment on these goods.

This man was the collector for the defendant, and it looks very much as though, in one respect, he was like the Apostle Paul, when he says: “I magnify mine office.”

The judgment of the common pleas court, affirming the judgment of the municipal court, is affirmed.

"Winch and Niman, JJ., concurred.


text:
    LANDLORD AND TENANT — PRINCIPAL AND AGENT
    [Cuyahoga (8th) Circuit Court,
    November 11, 1912.]
    Marvin, Winch and Niman, JJ.
    M. F. Mason Hat Co. v. Mortimer Mason et al.
    One About to Terminate Agency may Secure for Himself Lease of Building Used by His Principal.
    A lease of a building used as a place of business by his employer, taken by one about to retire as manager of that business, will not be decreed to be held for the benefit of the employer when it was agreed between the employer and manager that upon his retirement the manager might re-engage in the same line of business, and that that particular neighborhood should be fair and free territory for both, and the landlord was fully informed as to the situation when the lease was made.

      Smith, Taft <& Arter, for plaintiff.

      Hidy, Klein & Harris, for defendants.
   MARVIN, J.

The defendant, Mortimer F. Mason, for a number of years was the president and manager of the plaintiff corporation, which conducted a retail hat store in the city of Cleveland in a room rented from the defendant, the East Fourth Street Improvement Co. The lease of said store room was to the defendant, Mortimer F. Mason, but was held for the benefit of the corporation to whom he had assigned it.

By reason of some complications in the business, the defendant, Mortimer F. Mason, on August 22, 1912, sold all his stock to Samuel Mundheim, another stockholder in said corporation, and resigned both as an officer and a director of said corporation. The lease for the store room expired on August 31, 1912.

On said August 22,1912, when said Mason sold his stock and retired from the corporation, a written contract was entered into between himself and the corporation, setting out somewhat in detail the difficulties which made it desirable that he should retire from the corporation and at the same time, and as a part of said contract, said Mason signed and delivered to the plaintiff two communications which read respectively as follows:

“Cleveland, Ohio, August 22d, 1912.
“In order to secure the assent of S. Mundheim personally and S. Mundheim' & Co. to the action this day taken by the directors of the M. F. Mason Hat Co., approving the overdraft' of M. F. Mason, as shown on the books of the company and voting to him an amount equal to said overdraft as additional compensation for his services, said M. F. Mason represents that all overdrafts and claims against him appear on the books of the company, and that there are not outstanding liabilities of the company other than to S. Mundheim & Co., except small bills which will not aggregate more than One Hundred Dollars, and that said M. F. Mason has no other and further claims against said company, and that he will continue without additional compensation until the close of business on Saturday, August 24, 1912, and that thereafter he agrees to render such assistance by way of furnishing information as may be requested by S. Mundheim or any one acting for and on behalf of him, the intention of this agreement being to make a settlement based on these statements and for him to turn over the business and assist in any way that he can in seeing that it is carried on, except that he shall be allowed himself to go into business.
“M. F. Mason.”
‘ ‘ Cleveland, Ohio, August 22, 1912.
“Mr. S. Mundheim,
‘ ‘ City.
“Dear Sir: In connection with the statement today made by me with reference to the business of the M. F. Mason Hat Co., I desire to state that it is my intention that the lease on the Sheriff street store, No. 2045 East 4th street, this city, shall be an open and fair field as between the M. F. Mason Hat Co. and yourself, or any of your representatives and myself, and to that end, whatever moral or legal obligation the landlord of those premises may feel under to me, I hereby release. This refers to the right to those premises from and after September 1, 1912.
“M. F. Mason.”

Prior to August 22, 1912, Mason had arranged with the owner of the store building for a renewal of the lease, or a new lease on the building, beginning September 1, 1912, but he had received no such lease, though negotiations in that regard had gone so far that he might well expect to receive the lease.

The first of the communications shows that he contemplated the carrying on of the hat business in Cleveland, and the second of the communications is a clear notification to the plaintiff that he was likely to desire to obtain a lease of this store room and prosecute his business in such store, and that he had had some negotiations with the owner of the building in regard to obtaining a lease therefor. This is clearly implied from the language:

‘ ‘ I desire to state that it is my intention that the lease on the Sheriff street store No. 2045 East 4th street, this city, shall be an open and fair field as between the M. F. Mason Hat Co. and yourself, or any of your representatives and myself, and to that end whatever moral or legal obligations the landlord of those premises may feel under to me I hereby release. This refers to the right to those premises from and after September 1,1912.”

On August 23, 1912, Mason obtained a lease of the premises from September 1, 1912, which appears in the lease at its date, and the purpose of this suit is to have it declared that he holds such lease as the trustee of the plaintiff, and to decree that it be declared to be a lease to the plaintiff.

One of the grounds of this claim is that Mason said in the first of the communications hereinbefore quoted:

“Said M. F. Mason will continue without additional compensation until the close of business on Saturday, August 24, 1912.”

Having obtained the lease before the close of business August 24,1912, which was Saturday, it is claimed that he was then acting for and on behalf of the company, and that he had no right to take this lease to himself while so in the employ of the company.

Mason said to the company in his communication, which was accepted by them, that there was to be an open and fair field between them as to who should obtain the lease.

Before the lease was finally made to Mason, the landlord had notice that Mason had released him from all moral and legal obligation to give him the lease. On this same August 22, 1912, the plaintiff, at the office of its attorneys, sought to obtain from the landlord a lease to it of these premises. These attorneys of the plaintiff were notified by Mr. Price, president of the landlord corporation, that there had been talk of a lease to Mason, but that such lease had not been consummated, and on this same August 22, before the close of the day, Mason was seeking to have the new lease made to him. Bach seems to have started out upon the idea that the field was to be clear and open for both of them and each sought to be first in the field. It was not because Mason did not leave the field clear and fair for the plaintiff, that he got the lease, for the plaintiff seems to have been in the field and seeking the lease fully as early as Mason was, but Mason turned out to be the more fortunate.

We think there was no violation of Masons’ duty to the company in so obtaining the lease. The landlord knew that Mason was making no claim because of anything that had transpired between them prior to August 22, 1912, and it chose to give the lease to Mason, rather than to the plaintiff, knowing, through the agent of the plaintiff, that it desired the lease.

If the plaintiff was at liberty to seek this lease from the landlord prior to the close of business on August 24, and if Mason was without right so to seek it within the same time, then there was not a fair and open field between the two, which Mason said in his communication, accepted by the plaintiff, that he was willing to have, and to hold that the plaintiff might secure a lease, if it could, before the close of business on August 24, and that Mason was prohibited as between him and the plaintiff from so doing, would take away the fair and open competition to which both parties had agreed.

Plaintiff had full notice that Mason expected to go on with the hat business, and that he desired this room, and that there was to be a fair and open field between them. Suppose there had been a stock of goods which both parties knew was on sale, it would hardly be claimed that Mason might not have negotiated for the purchase of such stock of goods before the close of business on August 24. Plaintiff, knowing that he was expecting to go on with the hat business, and that he desired this store, and that there was to be a fair and open field between them as to who should have it, is not entitled to have the lease, which was made on August 23, 1912, decreed to be for its benefit, and the petition is dismissed.

Winch and Niman, JJ., concur.


author: RICHARDS, J.

text:
    INJUNCTION — JUDGMENT—PARTIES—PLEADING
    [Wood (8th) Circuit Court,
    May 3, 1912.]
    Wildman, Kinkade and Richards, JJ.
    Benj. F. James et al v. Vincent D. P. Fildes et al.
    1, Proper Party in Injunction against Enforcement of J. P. Judgment.
    In an action to enjoin enforcement of a judgment rendered by a justice of the peace, the only party which good practice requires should be made a defendant is the plaintiff who is seeking to enforce the judgment.
    2. Variance in Petition to Enjoin Enforcement of J. P. Judgment because of Failure to Enter on Docket.
    In such an action, in which it was alleged that the judgment was fraudulently obtained, the testimony disclosed that while a judgment appeared on the transcript of the proceedings before the justice no judgment was ever entered upon his docket. Held: The variance was immaterial and the defendants had not been misled thereby, and that the plaintiff should be given leave to amend his petition forthwith and judgment thereupon entered enjoining proceedings for enforcement of the alleged judgment.
    Appeal.

      James & Kelly and Edw. Beverstock, for plaintiffs.

      Claud Wyant and Earl J). Bloom,, for defendants.
   RICHARDS, J.

This action, which is pending here on appeal from the court of common pleas, is brought to enjoin the enforcement of an alleged judgment of Vincent D. P. Fildes, a justice of the peace of this county, in an action, brought by Claud "Wyant against Benj. F. James and Edward Beverstock.

It appears from the evidence that Wyant sued before the justice of the peace to recover upon an account that was claimed to be due him from the defendants, and that at the time his action was brought Benj. F. James, one of the defendants, was in Spain. Certain correspondence ensued between the justice of the peace and J. E. Kelly, who was acting as attorney for the defendants, relative to the continuance of the case until Mr. James should return. In a letter written by the attorneys to the justice of the peace under date of May 13, 1907, the justice is informed that counsel desired to make a defense to the action and that unless the cause could be continued until the return of Mr. James, so that his testimony might be had, it would be necessary for the defendants in the case to appeal to the court of common pleas, in which event they asked that the justice inform them of the amount of the appeal bond. On the next day, May 14, 1907, the justice answered by maii giving the information that the case would be continued until the return of Mr. James and that it must be taken up as soon as possible on his arrival home. It appears from the evidence that he did in fact return home on or about June 12, 1907. On June 15, 1907, without any communication having been made to either of the defendants or their attorney by either the plaintiff or the justice of the peace, the plaintiff Wyant appeared in the justice court and asked that the case be heard, and it appears to have been done. It seems that the justice found from the plaintiff’s evidence that the defendants were indebted to him in the sum of $50.18 debt and $24.20 costs. Neither James nor Beverstock nor their attorney had any knowledge of the claimed judgment until some six weeks thereafter, when Mr. James was notified by letter from Wyant that judgment had been rendered. Shortly thereafter this aetion in injunction was brought to prevent the enforcement of the judgment, the plaintiffs in their petition claiming that they had and have a valid defense to the claim and that they were deprived of an opportunity to make a defense and that they should have been advised in some form of the time when the case was to be heard by the justice of the peace.

The petition alleges in effect the rendition of the judgment, but that it was obtained through the fraudulent conduct of Fildes and Wyant. Upon the trial of the case in this court a transcript was offered in evidence, which, with some interlineations made at a date which does not clearly appear, shows a judgment in the amount stated. The justice of the peace, Mr. Fildes, however, was called as a witness. Upon cross-examination he was asked to account for the fact that a discrepancy existed between the transcript and the original docket, and he answered: ‘f The difference is with the last four lines; they are not in the docket.” Later, he said in answer to a question as to why that language is not on the docket, “Probably I forgot to put it in,” and he states that he may have made the transcript out and forgot to enter it upon the docket.

Now, the important fact in this case is that the last four lines, which are refered to in the testimony of Mr. Fildes as not being on the docket, are the lines which as they appear on the transcript purport to render a judgment, and without those lines the docket contains no judgment.

The statute provides, Sec. 10378 G. C., that the justice, when the trial is had by him without a jury, must enter judgment immediately after close of the trial, if the defendant has been arrested or his property attached, and that in other cases the judgment shall be entered either at the close of the trial or, if the justice desires further time, on or by the fourth day thereafter, both days inclusive.

The language of this section was under consideration by the Supreme Court in Eaton v. French, 23 Ohio St. 560. In the course of the opinion the court say, speaking through Day, J., and after quoting the section to which reference has just been made: ‘ ‘ this language is clear, specific and peremptory. ’ ’

It thus appears in this ease, that although more than four years have elapsed since the case was heard beforé the justice, no judgment has in fact been yet entered upon his docket, and we think under those circumstances the plaintiffs are entitled to the relief prayed for in their petition in this case. It is doubtless true that good practice would require that the justice of the peace should not have been made a defendant, the only necessary defendant being the plaintiff in the justice’s court who was seeking to enforce the alleged judgment.'

We are, however, confronted with the fact that the plaintiffs in this ease, probably relying upon the .transcript, averred in their petition that a judgment was entered, claiming the same, however, to be fraudulent. We think this discrepancy between the allegations and the proof is in immaterial variance as defined in Sees. 11556, 11557, G. C., and it is apparent that the defendants have not been misled thereby.

We find from the evidence of the justice of the peace himself that no judgment was in fact entered upon his docket, and the plaintiffs may have leave to forthwith amend their petition in accordance with such finding.

The decree of the court will be in favor of the plaintiffs enjoining the collection of the alleged judgment.

Wildman and Kinkade, JJ., concur.