author: Summers, J.

text:
    (Second Circuit — Fayette Co., O., Circuit Court
    May Term, 1897.)
    Before Shearer, C. J., Summers and Wilson, JJ.
    IN RE PALMER.

      Disbarment of attorney — Not mere punishment—
    (1.) Disbarment of an attorney is not for the purpose of punishment, but for the purpose of preserving the courts of justice ’ from the official ministrations of persons unfit to practice in them. _

      Same — Reinstatement—Moral character—
    (2.) A court ought not to reinstate an attorney who has been disbarred unless satisfied that he is of good moral character.
    On molion®to vacate order of disbarment of Oharles A. Palmer and to reinstate bim in his office of an attorney at law.
   Summers, J.

At the May term. 1892, of this court the said OharlesA. Palmer was found guilty of misconduct in office and unprofessional conduct involving moral turpitude, and upon this finding a judgment was entered removing him from his office of attorney and counselor at law.

At the November term 1894 a motion to reinstate him was overruled. 9 O. C. 0. 55, 72.

The grounds of the present motion are the following:

“That the said Charles A.Palmer has already been severely punished for any misconduct of which he may have been guilty, and his life and conduct since his disbarment have been such as to give assurance that by his restoration to the bar, no harm to the public or reproach to the bar would arise: and his restoration will not be incompatible with a proper respect of the court for itself and a proper regard for the dignity of the profession.”

In ex parte Burr, 9 Wheat., 529, Marshall C. J. said;

“The profession of an attorney is of great importance to an individual, and the prosperity of his whole life may depend upon its exercise. The right to exercise it ought not to be lightly or capriciously taken from bim.”

“Admission as an attorney is not obtained without years of labor and study. The office which the party thus acquires is one of value, and often becomes the source of great honor and emolument to its possessor. To most persons who enter the profession it is the means of support to themselves and their families. To deprive one of an office of this character would often be to decree poverty to himself and destitution to his family. A removal from the bar should therefore, never be decreed where any punishment less severe — such as reprimand, temporary suspension, or fine^ — 'Would accomplish the end desired.”

Weeks on Attorneys at Law, 158, citing Bradley v. Fisher, 13 Wall, 356, Ex parte Bradley 7 Wall 364.

Considerations such as these,and a high regard for those eminent members of the bar in this and other counties who either favor the reinstatement of Mr. Palmer or so lightly regard their duty in the premises that they find it easier to permit themselves to be placed in that light before the court than to remain silent, have induced us to hold this matter under consideration for many weeks, not merely to leave no room for a suspicion of hasty judgment, but in order that we might,if possible,after mature deliberation, reconcile an order suspending the judgment in the case, during good behavior, with our sense of the duty devolved upon us by law.

The case now made is not materially different from that on the former motion, nor are the reasons assigned materially different. It must be therefore that the only excuse for the present application is the fact that there has been a ■change in the personnel of the court. A careful reading •of the opinion on the decision of the former motion discloses ■nothing in the statement of the law governing the case to which we dissent.

Since the former hearing, Mrs. Palmer has obtained a divorce from her husband, so that he now has no family dependent upon him for support, and most of the' testimony in that case was before us upon his appeal from the order as to alimony. The former hearing was upon affidavits; the present the court required to be upon the depositions or •oral testimony of witnesses,and appointed counsel to represent the interests of the state.

The testimony is to the effect that Mr. Palmer since his ■disbarment has been industrious; that he has been upright in his dealings, and that he has so conducted himself that in the opinion of the witness he could be safely reinstated in his profession; and his own testimony as to his efforts to make a living and his want of success by reason of the discredit which a knowledge of his disbarment brings upon ¡him,

As to the first ground of the motion,it is sufficient to say that removal from the office of attorney at law is not for tbe purpose of punishment, but for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them. Disbarment because of the commission of crime does not exempt from indictment, nor is punishment for the offense or pardon a bar to removal from office.

As to the second branch of the motion. A good moral character, as well as a competent knowledge of the law and sufficient general learning, is a necessary qualification for admission to the bar, and where an attorney has been removed from his office for his unprofessional conduct showing the loss of such a character,he should not be reinstated if the court,with all the facts before it, would not in the first instance admit to practice a man with such character.

That these are correct statements of the law will appear, and the duty of the court as well, from the following extracts from cases selected from a much larger number examined,

In Ex parte Wall, 107 U. S., 265, 288, Mr. Justice Bradley says:

“Removal from office for an indictable offense is no bar to an indictment. The proceeding is in its nature civil, and collateral to any criminal prosecution by indictment. The proceeding is not for the purpose of punishment, but for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them.”

In Penobscot Bar v. Kimball, 64 Me. 140, the court held:

“The statute makes a-good moral character a prerequisite of admission to the bar, and when an attorney at law has forfeited his claim to such character by such misconduct, professional or non-professional, in or out of court, as renders him unworthy to associate with gentlemen and unfit and unsafe to be entrusted with the powers, duties and responsibilities of the legal profession, the court may deprive him of the power and opportunity to do further injury under the color of his profession by removing him from the bar.

“By admitting the respondent to the bar the court held him out to the public as worthy of confidence and patronage in the line of his profession. In view of the power of removal vested in the court, to allow the respondent to continue to exercise his profession after he has been thus proved to be unworthy of his office, would be indirectly to involve the court in the responsibility of his acts. And further, after the disclosures in this case, the court cannot forbear to pronounce the judgment of removal from office against the respondent without abdicating the high trust which the law confides to it in this behalf, and rendering that a nullity.

“The respondent has been pardoned for the forgery of which he was convicted and for which he was confined in the state prison; but the instrument forged was a deposition used in a cause before this court; and though the pardon purged him of the offense of which he was convicted, it did not affect the crime of the violation of his professional oath and duty, nor relieve him from the penalty of removal from the bar for this misconduct.”

And in the opinion, Dickerson J. says: (154)

“The evidence discloses not merely a single instance of moral delinquency, disreputable practice and professional misconduct, but a series of them, showing the respondent to be unfit and unsafe to be intrusted with the powers, duties and responsibilities of the legal profession. No court would fot a moment consider the claims of an applicant for admission to the bar who should be shown to possess such a moral character. If the violation of his oath of office, fraud upon the court, bad faith toward clients, dishonesty in his dealings as an individual, and disregard of the courtesies and proprieties due to the other members of the profession should operate a forfeiture of the office of an attorney, the respondent has no longer any claim or right to enjoy that office.

“Unpleasant as is the duty, grave as is the responsibility devolved upon us, and serious as must be the consequences to the respondent, we cannot forbear to pronounce the extreme judgment of removal without failing to discharge the

high trust which the law reposes in us, and which is indispensable to the maintenance of the dignity of the bench, the integrity of the bar, and the purity of the administration ■of justice. Indeed, to refuse to do so in this .case, would be virtually to abdicate this trust,and render the law creating it -a nullity. The guaranty which the law in this behalf provides for the security of the public must be maintained inviolate. ’ ’

And Whipple, 0. J., remarks as follows, Mills’ case, 1 Mann., 398:

“Should this court, after being officially advised that ■one of its officers has forfeited the good name he possessed when permitted to assume the duties of his office, still hold him out to the world as worthy of confidence, they would in my opinion fail in the performance of a duty cast upon them by the law. It is a duty they owe to themselves, to the bar and to the public, to see that a power which may be wielded for good or for evil, is not entrusted to incompetent or dishonest hands. The extreme judgment of expulsion is not intended as a punishment inflicted upon the individual, but as a measure necessary to the protection of the public, who have a right to demand of us that no person shall be permitted to aid in the administration of justice whose character is tainted with corruption.”

Again, Dickerson J., says (Ibid 146):

“If ‘a good moral character’ is indispensable to entitle one to admission to the bar, it is obvious that the necessity for its continuance becomes enhanced by the conflicts, excitements and temptations to which the practitioner is •daily liable. ”

And Bigelow, 0. J.,in Randall, petitioner for mandamus, 11 Allen 473, 480, says:

‘ ‘Nor can a judgment of removal be properly and technically considered as a punishment for a crime or offense. In Ex parte Brounshall, Oowp., 829, Lord Mansfield said: ‘To strike an attorney from the roll’ is not in the nature •ofaa punishment; it is done ‘because he is an unfit person to practice as an attorneythe court exercise their discretion whether a man, whom they formerly admitted to the bar, is a proper person to be continued in the roll. ’ The more reasonable inference is that the power of removal was given, (by the legislature), not as a mode of inflicting a punishment for ah offense, but in order to enable the courts to prevent the scandal and reproach which should be occasioned to the administration of the law, by the continuance in office of those who had violated their oaths or abused their trust,and to take away from such persons the power and opportunity of injuring others by further acts of misconduct and malpractice.”

Oassody, J. In re 0 — , 73 Wis. 602, 613, says:

“The chief object of this proceeding is not to punish the respondent, but to protect the public from imposition. An attorney bears with him the certificate of the court that he is of good moral character and a fit personto be trusted with the delicate and responsible duties of a member of the legal profession. This certificate the public has a right to rely upon, and to presume its holder to be a person of integrity and honor. Hence, when it has been made to appear that he has been guilty of acts which show him to be so deficient in honesty as to be unworthy of confidence, it is the duty of the court to withdraw its certificate. We owe this duty alike to the public and to the bar.

“By admitting an attorney to the bar, the court presents him to the public as worthy of its confidence in all his professional duties and relations, and if afterwards it comes to the knowledge of the court that he has become unworthy, it is its duty to withdraw that endorsement, and thereby cease to hold him out to the public as worthy of professional employment.” * * * “The power of removal for just cause is as necessary as that of admission for a due administration of law.” In re Samuel Davis, 93 Pa. St. 116.

“In proceedings to disbar an attorney on the ground that he had been convicted of a felony, the court may, even if he has been pardoned, take into consideration his conduct in commiting the crime, and estimate his character and fitness to practice law therefrom, to have property and interests of clients in his hands,and to hold himself out as an accredited officer of the courts.” In the Matter of - an Attorney, 86 N. Y. 563.

“In as much aB good moral chaarcter is one of the qualifications essential to the admission of an attorney, he may be disbarred whenever he ceases to possess such qualification.” Percy's Case, 36 N, Y. 651.

In Rice v. Commonwealth, 18 B, Monroe, Simpson,fJ., says:

“All courts have the power to control and regulate to a certain extent, the conduct of their officers, and to inflict on them for their official misconduct such punishment as the law prescribes. If a court have knowledge of the exist - ance of such official misconduct on the part of any of its officer's, it not only has the power, but it is its duty, to institute an appropriate proceeding against the offender, and to bring him, if guilty, to condign punishment. And it is 'much to be regretted that this duty, which the law devolves upon the courts of the country, is so little regarded, and that the obligations which it imposes are so frequently overlooked or neglected.

“It would be unjust to the profession, the purity and integrity of which it is the duty of all courts to preservé, and a disregard of the public welfare, to permit an attorney who has forfeited his right to public confidence to continue the practice of his profession ” State v. McClaugherty, 33 W. Va., 250.

“The conclusion is painful,but imperative. Too much is staked upon the honesty and good conduct of lawyers for courts to wink at flagrant misconduct. They are trusted by the community with the care of their lives, liberty and property, with no other security than personal honor and integrity. It behooves the courts and the profession to see that their brotherhood keeps clean records. ” In re Henderson, 88 Tenn., 531.

In Kilbourn v. Hand, 9 Ohio, 42, Lane, C. J. says:

“The relation of attorney and client is a necessary one in every country whose civilization is in any degree advanced. The discharge of professional duties demands great and unreserved confidence from the client, and the connection of the attorney with courts, and his access to papers, require unsuspected integrity. Hence general honesty and fidelity to clients, is not only necessary to his success, but even to the ¡performance of his duties. Other good qualities may be wanting in his character, and some vices may be present, but these are the essential virtues of his calling, no more to be' dispensed with than courage in a soldier, or modesty in a woman. The statute regulating admission to the bar, requires the court to be satisfied that the applicant possesses these qualities. The public have a right to presume that ■the court are fully satisfied upon these points, and to regard a license to practice as a certificate of good character from them. And whenever the court shall become persuaded that an attorney has lost these qualifications, essential to his usefulness, and necessary to the safety of his employers, thev are wanting in their duties if they do not take away his means, and destroy his opportunities for mischievous action.”

This qualification is not merely statutory, but is inherent in the very nature of the profession, and always and everywhere has been regarded as essential. Sir Walter Scott, •who was well qualified to speak, says: in “The Antiquary:”

“But I was going to say that in a profession where unbounded trust is necessarily reposed, there is nothing surprising that fools should neglect it in their idleness, and ■tricksters abuse it in their knavery. But it is the more to the honor of those, and I will vouch for many, who unite integrity with skill and attention, and walk honorably upright where there are so many pitfalls and stumbling-blocks for those of a different character. To such men their fellow •citizens may safely intrust the care of protecting their patrimonial rights, and their country the more sacred charge •of her laws and privileges.”

What,then,is this good moral chaarcter which is soessen-. tial to membership in the profession? It is the man himself, aside from his attainments and reputation. “Character lives in a man, reputation outside of him.” Mr. Palmer, by his conduct since his disbarment, may have acquired ■among new acquaintances the reputation of a good moral ■character, but this cannot be accepted as conclusive evidence of his having such a character when the court is in possession of facts wiiich reveal a different character.

In the matter of - an attorney, 86 N. Y. 563, 575, Folger, C. J. says:

"‘We do not lose sight of the very numerously and respectably signed certificate that was presented to the General Term. It doubtless was considered by the General' Term as it has been by us. It shows in that community a general public sympathy with the appellant. * * * * The-certificate presented to the General Term does not assert ¡a fair,moral and professional reputation of the appellant since' the prosecution of him for forgery. It expresses, however,ah opinion that he is a proper and competent person to practicb' law, and that the signers have general confidence in his integrity. That is tantamount to having a good reputation, lit-is a weighty testimonial in his favor. It had its effect upon the mind of the General Term without doubt, but not enouglpto counteract that of the facts that were shown. The General Term was bound to form an opinion of its own. It could not ignore facts because of the counter opinion of ever so many men of respectability and standing. They spoke-to what the community thought of him, notwithstanding: those facts, if indeed the community full) knew of them, and how it felt toward him; that is, it .spoke to his reputation. The facts spoke of his impulses to action; that is, to1 his character, what was at work within him, and might aC any time impel him to action.”

There is no numerously and respectably signed certificate-in this case, nor do we know whether there is in the community a general public sympathy with the applicant, nor is it important, for neither could relieve the court of its responsibility; but what the eminent judge there says,applies with especial aptness to the testimony of those who merely give expression to their opinion.

If Mr. Palmer was an applicant to this court for admission to the-bar, we could not, with the facts of his past’ life which are before us, without shirking the duty imposed upon us, admit him,for want of one of the necessary qualifications. Even the good reputation to which his new acquaintances testify cannot have taken very deep root, for he himself, in bis testimony, attributes his failure to succeed in a business in which unbounded trust is not necessarily reposed, to the fact that information of his disbarment followed him. The fact that Mr. Palmer has not defrauded any one since his disbarment can hardly be taken as any assurance that he would not again yield to the opportunities and temptations that might arise in the practice of the profession. On cross-examination, when pressed to answer whether he had ever offered to make such small restitution as was in his power, his readiness to charge counsel with an offer to betray the trust reposed in him by the court if he, the witness, would make restitution to counsel’s clients, does not comport with a change of character. Nor does his omission to offer what restitution is in his power. The King in Hamlet says:

Joseph Hidy, for applicant.

J, N. Van Deman, for state.

“My fault is past. But, O what form of prayer Can serve my turn? Forgive me my foul murder 1'hat cannot be; since I am still possess’d Of those effects for which I did the murder, My crown, mine own ambition, and my queen. May one be pardoned, and retain the offense9

It may be that the applicant has learned by sad experience that honesty is the best policy, and that he would not disappoint the good opinion of those who would entrust him with the privileges of the profession; but the law does not authorize us to accept any less assurance than a good moral character.

The motion is overruled.


source: Caselaw Access Project

author: Scribner, J.

license: Public Domain

text:
    (Sixth Circuit — Wood County., Circuit Court
    Oct. Term, 1896.)
    Before Haynes, Scrihner and King, JJ.
    THE ROYAL INSURANCE COMPANY v. WILLIAM SOCKMAN.

      Fire insurance — Condition against alienation — Sale of one part owner to other—
    A policy of insurance against fire, issued to W. W. S. “and brothers” upon a house and barn and contents owned by said^W. W. S. and his brothers P. S. and B, S. in ¡¡equal shares and as tenants in common, contained provisions restraining and restricting alienation of the property, and to the effect that any change in title or interest occurring without notice to and consent of the insurance company should render the policy null and void, Held:
    Same—
    (1.) That a conveyance by P. S. and B. S. of their respective interest in the property to W. W. S. without notice to or consent of the company did not invalidate the policy,

      Same — Right to sue for entire insurance—
    (2.) That for a loss occurring after such conveyance, W. W. S. had a right to recover in a suit brought by himself alone, the whole amount of such loss, both that on account of the interest originally owned by him, and that on account of the interest of his brothers so conveyed to him.
    (Decided on authority of West et ah, v. The Citizens Insurance Co., 27 Ohio St., 1.)
    Error to the Court of Common Pleas of Wood county.
   Scribner, J.

This is a petition in error to reverse the judgment of the Court of Common Pleas of Wood county, Ohio, in an action on a fire insurance policy.

The insurance policy in question, which is made part of the bill of exceptions taken in the case, appears to bear date of December 19, 1891. It recites in the outset, that in consideration of the representations, conditions, and warranties hereinafter mentioned or referred to, and the receipt of twelve dollars, the Insurance Company agree to indemnify William W. Sockman and brothers — -(issued it will be observed to partners under a partnership name), against all such immediate loss' or damage as shall happen by fire, to the following specified and located property, (but subject to< the conditions and stipulations contained in this policy), to an amount not exceeding twelve hundred dollars. The policy describes the property insured: a dwelling house,known as No. 1; a barn known as No. 2, and certain of the contents of each of the buildings. Upon each building, and upon certain contents of each building, a certain specified sum is named. The petition alleges among other things, that the defendant is a foreign corporation duly organized to transact the business of insurance, and is represented by agents only, in Wood county, Ohio. That the defendant,in consideration of a certain premium by and between the plaintiff and the defendant agreed upon, and by the plaintiff, then paid, to-wit: the sum of twelve dollars, and by a certain policy of insurance, duly executed, insured the said plaintiff against loss or damage by fire, to the amount of twelve hundred dollars. Then follows a description of the property. Then there is an allegation, that on October 19, 1894, the barn and contents and a portion of the contents of the house were totally destroyed by fire, A question is raised in the case upon which this allegation has some bearing, viz: “Plaintiff says he has fully complied with and performed the agreements and conditions contained in said policy to be complied with and performed by him,” and this: “That immediately after said fire he gave notice in writing, to the said defendant of said loss resulting therefrom.” Then follows an allegation quite material to the question in this case:

“That shortly thereafter,to-wit: on October 31, 1894, an adjusting agent of the defendant was sent by the defendant to the place where said fire occurred, to examine into the circumstances of said fire, and the loss and destruction of said insured property thereby, and the loss and damage resulting to plaintiff therefrom, who, after making said examination- and obtaining information and evidence in-regard thereto, entered into a written agreement with said plainiff, wherein it was agreed between said parties, that the loss and damage suffered by said plaintiff, amounted to the sum of six hundred and twenty-five dollars and fifty cents, ($625.50), and that the consideration for said agreement was the avoidance of further expense and trouble in determining the amount of said loss and damage. The defendant thereby waived the filing of proofs as provided for by the condition of said policy, and in consequence of such action of said adjusting agent, said plaintiff was not required to, and did not furnish further proofs of loss. ”

The defendant, the Insurance Company, answered in the case, setting forth several matters of defense, each of which it was insisted, avoided all liabilities upon the part of the insurance company for the loss set out in the petition.

There is attached to the petition, a copy of the insurance policy. A reply was filed, and the case was tried to a jury, which, under the instructions of the court, returned, a verdict for the plaintiff, Sockman. I don’t mean to say that the court directed the jury to return a verdict, but under the instructions of the court, the jury found that the defendant was liable upon the policy of insurance, and that the matters set forth in the defendant’s answer, either were not true, or were insufficient to constitute a defense.

■ The first defense in the answer was demurred to by the plaintiff, and the court sustained the demurrer to that defense; and some of the important and controlling questions determining and settling the rights of the parties arose upon that answer, and upon the ruling of the court in regard to it, and I will call attention to some material portions of that defense for the purpose of making more clear the question that is made in the case. The company in its defense sets forth one paragraph contained in the policy, one condition, and that is No. 2 of the paragraphs or conditions forming a part of the policy, viz:

“This company will not be liable for loss or damage if the assured shall have, or shall hereafter make any other insurance on the property herein specified or any part thereof, or, if the above mentioned premises shall be occupied or used so as to increase or damage the risk.’’,

And here follows some matters not material in this case:

jf®“Or, if any change take place in the occupation, location, title, (other than by the death of the assured), interest or possession of the property herein specified * * * * without the assured’s written notice to the company, and without the written permission of the company endorsed on this policy. In either case, without such written notice to and without such written permission of this company, this policy shall be void, and all insurance thereunder shall immediately.Ccease and determine.’’

The defense to which I have referred, which is the first defense in the answer and to which a demurrer was sustained by the court,sets out that this defendant “denies that it~ever executed its policy of insurance to the said plaintiff, and denies that it insured said plaintiff against loss or damage by fire to the amount of twelve hundred dollars, for the period of five years from the 19th day of December, 1891, to the 19th day of December, 1896, upon the property described and set forth in the petition.’’

That allegation is based upon the theory of the pleader, from what is contained in the policy, that the company agrees to indemnify William W. Sockman and brothers; and they never agreed to indemnify the plaintiff, William W. Sockman only, who is the sole plaintiff in this action. That is a sort of a negative pregnant. They say they never issued a policy to William W. Sockman,

“This defendant further denies, that the said plaintiff was the owner of the property described in the petition at the time of the issuing of the policy of insurance, and denies that it ever agreed to indemnify and make good unto said plaintiff or his legal representatives, all loss and damage that might be sustained by said property at the time of its destruction, and further denies that said plaintiff has fully complied with and performed all the terms and conditions contained in said policy, to be complied with and performed by him.”

It afterward appears, that the plaintiff was the owner of an undivided interest, and not the owner of the property itself,and they say they never undertook to insure the plaintiff only. They deny that the plaintiff performed the terms and conditions of the policy. I take it that has reference to what is more definitely stated further on, that the plaintiff, as claimed by the company, never made proofs of loss, or never complied with the requirements of the policy. Now, then, we come to the meat of the controversy: — ■

“This defendant further says, that at the time said .policy of insurance was issued, the said William Sock-man, Potter Sockman and Bryant Sockman, were the owners of the property described in the policy of insurance, and this defendant undertook and did insure the same, according to their respective interests therein, at the 'time of the issuing of said policy of insurance, and did not agree to pay to either of them the whole amount of the loss or damage that might be sustained upon said property, but to pay the same according to their respective interests therein at the' time of the making and issuing of Baid policy.”

Then there is set out another term of the policy:

“This defendant further answering, says, that by the terms and condition of said policy, it was provided and agreed, that if any changes took place in the occupation, location, title, interest or possession of the property therein specified, that in every such case said policy should be void, and all insurance thereunder should immediately cease and determine, unless the insured gave due notice to the company and obtained written permission of the company endorsed on the pplicy of insurance, and that without such written permission of the company, said policy should be void and of no effect. This defendant further says, that after said policy of insurance was issued, the said Potter Sockman and Bryant Sockman, two of the insured therein, alienated, sold, transferred and conveyed their interest in, and title to said property, to William Sockman, and surrendered the possession of said property to him, and did not give notice to the defendant company of such sale and transfer, and did not obtain the written consent and permission of the defendant company endorsed on said policy or otherwise. This defendant says, that after the sale and transfer of said property by the said Potter Sockman and Bryant Sockman, as aforesaid, they ceased to have any interest in the property insured, and were no longer insured by the terms and conditions of said policy of insurance. This defendant further says, that said policy of insurance was not with the permission and consent of this defendant, or otherwise, transferred to the said plaintiff, and denies that the same was by any agreement with this defendant made payable to him. This defendant therefore says, that by reason of said sale and transfer of the interest of the said Potter Sockman and Bryant Sockman, two of the insured in the property aforesaid, said policy of insurance thereon, immediately became, and was void, and is of no force and effect, and said plaintiff has no right to have or maintain any action thereon against this defendant.”

It was to this defense, as I have stated, that a demurrer of the plaintiff was sustained by the court of common pleas, and one ground of error assigned in the present petition in error is, that the court of common pleas erred in sustaining this demurrer,and holding that the facts stated in the first defense, constituted no defense to the action; and really, this, in our judgment, is the principal question for determination in this case.

The bill of exceptions, which contains all the testimony in the case, disclosed the fact that the allegations of fact contained in this defense are strictly true. That is to say, that these three brothers owned, as tenants in common, the property which was insured; each owning an undivided one-third, They also owned other lands situated in Knox county, and, by agreement between these three brothers, this plaintiff, William Sockman, took the Wood county property,and conveyed to the two brothers, Bryant and Pother Sockman, the Knox county- property. William Sock-man conveyed to them his interest in the Knox county property,-so that they became the owners of that property, and Potter and Bryant Sockman conveyed to him their interest in the Wood county property, so that he became the owner of the entirety of the Wood county property, and now the question is, whether or not this transaction between these brothers which is undisputed, comes within the operation and effect of the clause appearing in article second of the policy of insurance, which provides, that if any change shall take place in the occupation, location, title, (other than by death of an insured), interest or possession of the property herein specified, without the written consent of the company, that then this policy shall be void. Now, we have carefully considered this question, and are of the opinion that it is governed by the decision of the Supreme Court, reported in the 27th Ohio St. Reps., at page 1, being the case of West et al.'v, The Citizens’ Insurance Company. In that case, the property insured and in question, was personal property, a stock of goods- — -but we think that the rule which was applied in that case, applies to this case. That it does not matter that the property insured in this case was real estate, (there was some personal property covered by the policy), or whether it, was personal property. The syllabus of that case which I will read, is very clear, and is as follows.

“Policies of insurance, like other contracts, are to receive •a reasonable construction, so as not tc defeat the intention •of the parties. A policy of insurance issued to a mercantile partnership on a stock of goods owned by the firm, and with which they are carrying on business, which contains provisions limiting or restricting alienation of the property, is not avoided by a sale by one partner to his co-partners, who continue the partnership business, of his interest in the stock of goods. ”

It will be observed, that the court here lays stress upon the fact that the sale is not to a third person, but is a sale by one partner to a co-partner. That is the nature of the transaction. No third person is introduced into the business by the transaction. No more is there here. These brothers who owned this property jointly, in equal undivided interest, simply exchanged one with the other their respective interest, and not upon any new consideration. The court in the case I refer to, further say:

“When the policy contains a provision that the assignment of the same or any interest therein, without the assent of the company endorsed thereon, avoids it, such a sale, and the assignment by the retiring partner to his co-partners, who continue the business, of his interest in the policy, does not avoid it. In case of loss after such sale and transfer, the remaining partners, being the real parties in interest, should sue on the policy, and in such action they are not limited, in the amount of recovery, to their interest in the partnership goods before such sale .and transfer, but can recover for the whole loss.

Here the plaintiff has brought a suit in his own name, as the sole party in interest, to recover for the loss of the property. He has not sought to recover for a portion of the interest, but for the entire loss. In concluding its opinion the court say:

“Finally, the question arises — shall these plaintiffs recover the whole that H. F. West & Company might have recovered, or only their individual shares? Does the sale by Henry F. West avoid the policy as to his undivided interest? In Hobbs & Hurley v. Memphis Ins. Co., 1 Sneed, 444, a case much like this as to its facts, it was held, as to the share or interest of the retiring partner, the plaintiffs could not recover, but only for their own interest in the firm; while in Hoffman v. Aetna Ins. Co., 32 N Y., 415, 416, where the same question arose, it was • decided otherwise'. The court say there: ‘There is no reason why the full measure of indemnity should be withheld from the plaintiffs,who were the owners at the date of the insurance, and sole owners at the time of the loss.’ We concur in the reasoning of the court in that case, and its conclusions of law on this point. These plaintiffs were parties to the contract; they continued to conduct the business contemplated by the policy; there was no substantial change material to the risk, and none within the meaning of the clause under consideration. The policy was intended to protect the interest of each and all; and its language, fairly construed, is in harpony with that intent. We are aware that the conclusions we have reached are at variance with the greater number of reported cases,but we believe that these conclusions rest on the firmer and more satisfactory ground of sound principles, and that they are more conducive to substantial justice — the aim and end of all law.”

Now,upon this view, it is clear that the court of common pleas ruled correctly in sustaining the demurrer to the first defense in this case, and that the facts admitted in the record and undisputed, furnish no defense in an action of the plaintiff in his own name, to recover for the loss under the policy.

There is another question presented in the record which we will briefly notice. That is this: The policy in its 18th clause, requires notice to be given in writing of the loss to the company and proofs to be made. In this case, it appears by the record,that an agent of the company,representing the company, came to this plaintiff and proposed an adjustment of the loss; that the two parties sat down together and went carefully over the matters involved in the ascertainment of the loss,and they reached a conclusion that the amount of the loss was six hundred and twenty-five dollars and fifty cents; that that conclusion and agreement was put in writing and signed, and it was further said, that the adjuster said to the plaintiff, that he need not give himself any further trouble about making proofs of loss. In other words, that proofs of loss were expressly waived. During the trial of the case, evidence was given pro and con, as to whether such an arrangement had been entered inlo, and certain instructions were asked by the defendant bearing upon this proposition of fact, which were in the form of requests, and were refused, and the court instructed the jury correctly, that if the parties did come together and did agree upon the amount of the loss, that thereby any proof of loss was waived, and the parties should be held to the stipulations agreed upon. These constituted the principal questions arising upon the record in this case. There are some other matters; some rulings and exceptions to the instructions, but we see no error in these that would interfere with the verdict of the jury, and we find that the judgment shall stand, but without penalty.

Paxton, Warrington & Boutet,- James & Beverstoek, Attorneys for Plaintiff in Error.

Parker & Pries, Attorneys for Defendant in Error.


text:
    (Second Circuit — Franklin Co., O., Circuit Court
    Oct. Term, 1897.)
    Before Shearer C. J., and Summers and Wilson, JJ.
    BANK OF CIRCLEVILLE v. BOWSHER.

      4ppeal — Notice—Judge’s docket not part of record—

    (1.) The judge’s docket is no part of the records of the court, and notice of appeal entered upon such docket is not sufficient.

      Same — Nunc pro tunc entry—

    (2.) A party desiring to appeal his cause to the circuit court must, within three days after the judgment or order is entered, enter on the records notice of such intention, and an omission to do so cannot be cured by a nunc pro tunc order.
    Error to Court of Common Pleas of Franklin county.
    Motion to dismiss appeal.
   Summers, J.

The ground of the motion is that notice of intention to appeal was not entered on the records within three days after the entering of the judgment.

Judgment was entered on April 27.

The judgment entry which was filed on that day, contained no notice of defendants’ intention to appeal; but, after three days had intervened, notice of defendants’ intention to appeal was added to this entry. This addition was made without the consent of plaintiff’s counsel, and, on May 12, at the same term, on their motion, this notice was ordered stricken from the entry and record, and was so done, without exception by the defendants.

Meanwhile, on May 8, the following entry was made upon the records:

“April Term, May 8, 1897. And now comes the defendants herein, Ferdinand Bowsher and Ella Bowsher, and give notice of their intentions to appeal this action to the circuit court, and the court fixes the appeal bond at two hundred and fifty dollars. And it appearing to the court that said notice was given within three days from the entry of judgment, the court orders that this entry be made as of the date of the entry of judgment. To which the plaintiff takes exception. ’’

The defendants gave an undertaking in the amount fixed by the court and within the time prescribed, and filed a transcript and the original papers and pleadings with the clerk of this court.

Counsel for defendants say that at the time the judgment was rendered,the trial judge made a memorandum upon his docket of notice of defendants’ intention to appeal, and of the amount of the appeal bond. But the question here is to be determined by the record, and, the notice of appeal having been stricken out of the entry of April 27, and from the records, without objection by defendants, the record stands as if no notice had been entered except that in the nunc pro tunc order of May 8, and the question is whether an omission to enter upon the records, within three days after the judgment or order is entered, notice of intention to appeal,can be cured by a nunc pro tunc order?

The right of appeal rests solely upon statutory provisions, and unless those provisions have been complied with, this court does not by the appeal acquire jurisdiction of the subject matter.

Section 5227, Rev. Stats, provides that

“A party desiring to appeal his cause to the circuit court shall, within three days after the judgment or order is entered, enter on the records notice of such intention, and within thirty days after the entering of such judgment or order upon the journal of the court, give an undertaking with sufficient surety, to be approved by the clerk of the court or a judge thereof, as hereinafter provided.”

The statute does not provide that notice shall be given to the court or to the opposite party, but requires notice of the intention to appeal to be entered on the records within three days after the judgment or order is entered. The object is to give notice, not merely to the opposite party, but to every one whose interest it may be to know. The duty and power of the court in respect to the matter of the appeal is limited to fixing the amount of the bond and deciding to which party it shall be made payable.

If the statute merely required notice of appeal to be given, and notice was given, then the court might, by a nunc pro tunc order,supply record evidence of that fact; but it is the office of a nunc pro tunc order to supply record evidence of what was previously done, and not at a subsequent time to do,as of a previous time, something which never was done. The Cleveland Leader Printing Co. v. Green, 52 Ohio St., 487.

C. J. Delaplane and F. C. Hubbard, for the motion.

Gale & Clarke, contra.

In Moore v. Brown, 10 Ohio, 197, it is held that

“A notice of appeal, marked by the court on its docket, büt not carried into the journals, is not a compliance with the statute requiring such notice to be entered on the record; nor can the omission be cured by a nunc pro tunc order, at a subsequent term.”

This decision is disapproved by Bartley, J.,in Hubble v. Renick, 1 Ohio St., 171, 172, but the question was not involved in the decision [of that case, and Moore v. Brown has. not been overruled, and is decisive of the question here presented. The statute under consideration in Moore v. Brown is found in Swan, 1841, page 682, sec. 124, and required the party desiring to appeal to enter on the records notice of his intention at the term at which the judgment or decree was rendered. The law now requires the notice to be entered within three days after the entering of the judgment or order, and so far as this question is concerned, that is the only difference.

“When the time for taking an appeal has expired, it cannot be arrested or called back by a simple order of court, such as entering an order mino pro timo.”

Credit Co. v. Ark. Cent. Ry., 128, U. S. 258.

Motion sustained, appeal dismissed,

Note. See Layer, guardian v. Shaber Admr., 38 W. L. B., 299, 57 Ohio St., decided by the supreme court since this opinion was received for publication. Ed. W. L. B.


author: Smith, J.

text:
    (First Circuit — Butler Co., O., Circuit Court
    May Term, 1897.)
    Before Cox , Smith and Swing, JJ.
    THE TYTUS GARDNER PAPER COMPANY v. THE MIDDLETOWN HYDRAULIC CO. & THE MIDDLETOWN HYDRAULIC CO. v. THE TYTUS GARDNER PAPER COMPANY.

      Alley way adjoining land sold, expressly excepted from sale, may be closed by owner—

    1. The strip of 16^ feet hereinafter mentioned, not having been • conveyed to the grantors of the Paper Co., by the Hydraulic Co., but expressly excepted from said conveyance,and there being no language in said deed referring to it as an alley or roadway, and such a right thereto not having been acquired by contract or prescription, the Paper Co. has no right to enjoin defendant from closing the same.

      Sight to use of bridge by prescription—
    2. The bridge in question having been erected over the canal ef the defenant by the plaintiff’s grantors, with the concurrence and assistance of the owner thereof, and used for more than twenty-one years, the right to have the same remain, has been acquired by the Paper Co.

      Mcense granted for valuable consideration — Assignable—
    3. The platform in question was placed over a part of said ■ Hydraulic canal, under a license from the Hydraulic Co., granted for a valuable consideration to the grantors of the Paper Co., and has been so continued with the consent of the Hydraulic Co. from 1883 or 1884, and in no way interfered with such canal. Held, that a parol license executed is irrevocable when granted for a valuable consideration, and having been granted for the benefit of the property of the • licensee -in this case, the general rule that a license is not assignable does.not apply in this case, and the Hydraulic Co. without good cause, should not now be allowed to removí the same without the consent of the Paper Co.
    Appeal from the Court of Common Pleas of Butler county.
   Smith, J.

We state very briefly the conclusions at which we have arrived in these cases. And first, as to the strip of 16-| feet of ground between the Tytus Mill and the Jacoby Mill.

It is manifest that the legal title to this strip, is, and for many years has been, in the Hydraulic Co. That when th® land on which the Tytus Mill is now situate, was conveyed by the Hydraulic Co. to the grantors of the Tytus-Gardnér Paper Co., this strip was owned by the Hydraulic Co., and was not conveyed by said deed, but was expressly excepted therefrom, and there was no language in the deed which called for it as an alley or roadway, or in any way indicated that the strip was to be so used, or that any interest whatever therein, was conveyed by the Hydraulic Co. to tire grantees in the deed. The grantees therefore, took no interest in it under such deed. No evidence was received or heard by the court, of any contract or arrangement between the Hydraulic Co. and the Tytus-Gardner Paper Co., or its predecessors in title, which gave them any right thereto, or any easement therein, or right of way over the same. Nor was there any evidence which shows that an easement therein, or a right of way over the same, has been gained by prescription. It is true, that for some years before the sale of the land to plaintiffs’ grantors, and while the property was owned by the Hydraulic Co., there was some vacant ground belonging to the Company, and of which this strip was a part, over which persons desiring it were allowed fo cross to reach the alley east of it; but this was not a well defined way,and not particularly over this strip,and such uses did not continue for twenty-one years, so as to ripen into 'a right. Judges Swing and Smith, therefore, with great reluctance, are compelled to hold, that the plaintiffs have not maintained their claim as to this strip, and are not entitled to the relief sought as to this. I say with reluctance, because we are satisfied that this strip was; in fact, reserved by the Company, intending that it might be used by the Jacoby Co., whose mills on the north side of the strip, came to the north line thereof, and by the grantees of the Company on the south side thereof — both being customers of the Hydraulic Co., and purchasing water rights therefrom. We think that it would be very inequitable and unjustifiable, if the Hydraulic Co., for no good reason, and without any prospect or advantage to itself, should insist on closing up this way. But we see no legal method to prevent them from so doing if they see proper to do it. Judge Cox is of the opinion that the plaintiffs are entitled to this strip as an easement, or to a right of way on it, and favors granting the relief prayed for.

2nd: — As to the bridge: We agree that under all the circumstances of the case, the bridge having been put there with the full concurrence, and perhaps with the assistance of the Hydraulic Co., and having been used asa bridge for more than twenty-one years, the right to have the same remain, has been acquired by the plaintiffs, and that the Hydraulic Co. has no right to remove it.

3rd: — As to the platform. This question presents greater difficulty. It is clear that the right to place it there, in the shape in which it now stands, was granted for a valuable money consideration to the grantors of the Tytus-Gardner Paper Co., and that a consideration was paid to the Hydraulic Co. therefor, and that it was constructed at a large expense, and was continued there without any objection on the part of the Hydraulic Co.,from 1883 or 1884, until shortly before the bringing of this suit in March, 1895. The platform was’so erected under the direction of the Hydraulic Co.,extending about sixteen feet from the west bank of the Hydraulic canal, extending for that distance over the canal, and-about — feet in length — it is supported by seven posts, each,say,one foot in diameter. We find that in no material or essential way, does it interfere with the use of the canal. This canal, at that point, is located along one of the streets of the city of Middletown, and the right to place it there,on certain conditions and under certain restrictions, was given to the Hydraulic Co. by the city of Middletown. Subject to this grant, the city is the owner of the street as it is of the other streets. No objection is made by the city to the platform as it exists.

Under this state of fact, has the Hydraulic Co., against the will of The Tytus-Gardner Paper Co., the right to remove this platform?

It would seem that the right to place it there was founded upon a license to do so, given by the Hydraulic Co. to the grantors of the Tytus-Gardner Paper Co., and not to the Paper Co. itself. As stated in yol. 13, Am. & Eng. Ency. of Law, 539, “License, as a term of real estate law, is an authority to do a particular act or series of acts, upon another’s land without possessing any estate therein. It is distinguished from an easement in the fact, that the latter always implies an interest in the land upon which it is imposed.” And on page 545, it is said. “A license is strictly confined to the original parties. It is purely a personal privilege, and unless coupled with an interest, is not assignable, and can operate neither for, nor against a third person. ”

The doctrine stated as to the non-assignability of a license, is the most troublesome question the Paper Co. has to meet as to this point. For while it is also the general principle that a parol license may be revoked by the licensor at will, yet, this is not universally the case. For instance, in our own state, it has been held (Wilson v. Chalfant, 15 Ohio, 248):

“1st. If one enter upon the land of another by virtue of a parol license, given for a consideration paid, and erects fixtures, trespass will lie against the owner of the land for destroying them.

“2nd. A parol license executed is irrevocable; and

“3rd. A license to erect fixtures upon the land of another, executed, gives the right of possession to control, repair and protect the fixtures against the owner ofthe fee.”

In the decision rendered by the court, it is said:

“On this subject the decisions óf judicial tribunals of our sister states differ. (Citing cases.) But in Ohio, we think it can, at this day, be hardly considered as an open question. Part performance of parol contracts, especially where the non-execution would operate as a fraud on the rights of the vendor, have repeatedly been enforced in' equity, and a parol license executed has been held to be irrevocable in numerous instances upon the circuit, at law. ’ ’

And in 20 Ohio St., 89, Judge Welch, in deciding the case of Hornback v. R. R. Co.,says: “The contract is at least a parol license, and that license has been fully executed, with the knowledge and consent of the plaintiff, who has received the full price stipulated therefor.” We see nothing in the decisions of that court subsequently changing the law as stated in 15 Ohio Reports.

As has been said, there is more reason to believe that the Paper Oo. is not in a position to avail itself of a license granted to its predecessor in the ownership of the property, for the benefit of whom the license was granted. And yet, as the license was evidently intended for the benefit of the property then owned by the license, and now by the Paper Oo., and was not intended for the personal use of the licensees, there is a strong element of justice in the claim that the Hydraulic Oo. having received a pecuniary compensation for the license, ought not now, without just cause, be allowed to destroy the improvement so constructed with its full consent, and with the same necessity for its use still existing. If circumstances should hereafter arise, which would show that its continued existence was to the substantial injúry of the Hydraulic Oo., we do not say that the Company, on proper terms, might not be allowed to remove it. But as the ease stands, we do not deem it equitable to require it to be done, on the showing made; but think it should be allowed to remain and the Hydraulic Oo. be enjoined from removing it.

Morey, Andrews & Morey, and J, J. Muir, for the Hydraulic Oo.

Thos. Milliken & Ben Harwitz, for The Tytus-Gardner Paper Co,

Another question arises in one or the other of these cases, as to the right of the Paper Oo. to use the water from the hydraulic, after it is measured and delivered to it, for any other purpose than the turning of the wheels of the mill. That is, whether it may be used in the boilers which have been put into the mill of the Paper Co.,to be converted into steam to turn other machinery. We are of the opinion that it has such right, except as stipulated íd the lease, that is that it can not be used for flouring mill purposes. That the water being measured to them, and paid for, it may nowr be used for the purpose indicated. There was to be and could be no further use of the water after it left the mills of the Paper Co,, but it then flowed directly into the Miami river, and was of no possible use to the Hydraulic Co,

The other questions made, as we understand, are not now in controversy. It being conceded that some use of the water was made by the Paper Co., which it was not entitled to use in that way, which use has ceased, and the question as to the disposition of the costs made in the second case, is all that remains. In view of all the circumstances of the case, we have arrived at the conclusion, that in each of the two cases, the plaintiffs should pay the one half of all the costs, and the Hydraulic Co, the other one half.


text:
    (Second Circuit — Darke Co., Circuit Court,
    Nov. Term, 1897.)
    Before Shearer, C. J., Summers and Wilson, JJ.
    RAILWAY CO. v. SIMON.

      Common carrier — Agreed valuation — When binding—
    A contract of carriage, fairly made and signed by a shipper, agreeing upon the valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, will, even in case of loss through negligence, be upheld, and the shipper limited to the agreed valuation.
    The plaintiff below, Simon, sued the C,, O., C. & St. L. Railway Co. as a common carrier, to recover $8,000 damages. He alleges that in September, 1896, at Evansville, Indiana, he delivered a valuable race horse to The Evansville &^,Terre Haute Ry Co., for shipment by said company and connecting lines from said city to Columbus,Ohio, and that said company, then and thereby agreed, and became bound through itself and its connecting lines, to transport and safely deliver the horse to plaintiff at Columbus; that said company safely transported the horse to Terre Haute, and delivered him to the defendant; that the defendant was a common carrier, and as such received the horse and agreed and undertook as a connecting carrier, to carry the horse and deliver him to plaintiff at Columbus,Ohio; that through the negligence of the defendant, a collision occurred at Indianapolis between two of its trains, and the car containing the horse, was thrown from the track and the horse permanently injured.
    The defendant answered setting up two defenses. First, (admitting the receipt of the horse and many of .the allegations of the petition), that at the time of the delivery of the horse to the first company at Evansville, the plaintiff there entered into a written contract with that company, which it alleges was made in its own behalf and in behalf of the defendant, and sets out a copy of the contract. So much of the contract as is pertinent, is as follows:

      Bead this contract.

      Evansville & Terre Haute Railroad and Associated Lines.

    Live Stock Contract.
    Liability limited to the declared valuation by shippers, but not exceeding the following:

      Bach horse or pony (gelding, mare or stallion,) mule or jack---- — $100.
    And in no event shall the carrier’s liability exceed twelve hundred dollars per car.
    Agents are not permitted to receive or ship animals of a higher value than as stated above, unless by special agreement noted hereon, and a proper contract or release is signed by the owner or shipper thereof. And it is agreed between the owner and shipper of these animals and the said railway company, that in case of accident, resulting in injury to said animals, the value thereof shall in no case exceed the valuations named above.

      Shipments of Live Stock in Gar Loads,
    or less than car loads, will only be taken at the rates named herein, after this contract or agreement shall have been signed by the Company’s Station Agent and the owner or shipper, by which it is agreed and understood, that such owner or shipper shall load, feed water, and take care of such stock at his own expense and risk; and will assume all risk of injury, or damage that the animals may do themselves, or each other, by kicking or gouging, suffocating, fright, burning of hay or straw, or other material used for feeding or bedding, or by fire from any cause whatever, or by heat, cold, or by changes in weather, or for delay caused by stress of weather, by obstruction of track by riots,strikes, or stoppage of labor.
    J. B. CavaDaugh, Gen’l. Freight Agent.
    Nos. of Way Bills Nos. of oars No. of Animals in each car shipper’s count. Freight Office, Evansville & Terre Haute R. R. and Associated Lines. Evánsville Station, Sept. 17, 1896, 10:30 A. M. Received of A. Simon to he delivered to A. Simon, Columbus, Ohio, Station, at the following rates: 4000 (a) 43 ets for horses 1 Horse O. R. Rel.
    in consideration of which, and for other valuable considerations, it is hereby mutually agreed that said company shall not be liable for loss of live stock by jumping from the ears, delay of trains not caused by negligence as aforesaid, or any damage said property may sustain, except such as may result from a collision of the train with other trains, or when the cars are thrown from the track in course of transportation, and in this case the company upon whose road the accident, loss or damage shall occur, shall be liable therefor, and no suit shall be brought or claim made against any other company forming a part of the route for such loss or damage (it being expressly understood and agreed that the responsibility of this railroad company shall cease upon delivery of said property to its connecting line, unless otherwise agreed to in writing, and signed by the respective parties hereto),and that the rules and regulations printed above are an essential part of this contract.
    Evansville & Terre Haute R. R. Co.,
    By E. E. Wieland, G. Agent.
    A. Simon, Owner.
    Defendant further alleges, that at the time the contract was made, the plaintiff represented in the written agreement to the first company, that the horse was of the value of one hundred dollars, and no more; that he paid the freight, the rate being based upon such valuation, though he knew at the time, that the agent was not permitted to receive or ship animals of a higher value than one hundred dollars at the same rate as an animal worth not to exceed one hundred dollars, and with such knowledge, represented to said company, and agreed to and with said company, for the benefit of said company and its connecting line, the defendant, in said written agreement, that the value of said horse was one hundred dollars and no more, and that said company for itself and the defendant, relying upon the statement and agreement of the plaintiff, that the horse was of the value of one hundred dollars, and that the risk incurred in case of accident, would be only one hundred dollars, for itself, and defendant accepted the horse for shipment upon said valuation and at a rate based upon said valuation. Whereupon defendant says, that plaintiff is es-topped to claim that the horse is of greater value than one hundred dollars, for which sum, with costs of suit, it offers to confess judgment.
    Second. For a second defense the defendant sets up the contract; that it was made by the first company in behalf of both, and says that the contract was made and executed in the state of Indiana; that the freight was paid in Indiana, and that the accident.happened in Indiana, and that according to the laws of that state, the plaintiff is bound and concluded by the value which he placed upon said horse in the contract, and upon the basis of which the freight was paid by him, and offers to confess judgment.
    . To these defenses the plaintiff interposed a general demurrer, which was sustained, and the defendant not desiring to plead further, the court assessed the damages at one thousand dollars, and rendered judgment.
    The error complained of, is the sustaining of the demur» rer to. the answer.
   Summers, J.

The first question to be determined is, whether the interpretation of the contract is governed^by the laws of Ohio, or of Indiana; for, if by the latter, the demurrer admits that by the law of Indiana, the plaintiff is bound by the valuation by him placed upon the horse and upon which the freight was based,

The rule established by the Supreme Court of the United States is, 'chat

“The law of the place where a contract is made governs its nature, obligation and interpretation, unless it appears that the parties; when entering into the contract, intended to be bound by the law of some other country.”

Liverpool & Great Western Steam Co. v. Phoenix Insurance Company, 129 U. S., 397.

In England the rule is the same. See In re Missouri Steamship Co., 42 Ch. Div., 321; Hutchinson on Carriers, (2nd Ed.), sec. 144a.

“Matters bearing upon the execution, interpretation, and validity of a contract, are determined by the law of the place where it is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy depend upon the law of the place where the suit is brought.”

Scudder v. Union National Bank, 91. U. S., 406. In the opinion, Mr. Justice Hunt gives illustrations of matters connected with performance, and it is evident that the question here does not relate to such matters.

In this state, however, the matter seems to be controlled by the place of performance, and a different rule- is established, by which,of course, we are bound.

In Railway Co. v. Sheppard, 56 Ohio St., 45, it is decided, that.

“A contract made in one state or country to be performed in another, is governed by the latter, which determines its validity, obligation and effect,” and that “where a railroad company receives live stock in another state, under a contract there made to transport it to a designated place in this state, and while the stock is being carried in this state, it is injured by the company’s negligence, the rights of the parties, in an action for damages for the loss, are governed by the laws of this state, and not by those of the state where the contract was made.”

See'also, Jacobson v. Adams Express Co., 1 O. C. C., 381.

But counsel for plaintiff in error, claim that the case is not in point, because it is limited to cases in which the accident happens in the state, and that the case decides that the rights of the parties are to be determined by the laws of the state of Indiana, in which the accident happened. This claim may be warranted by what appears in the opinion, if not by the quotations we have made from the syllabus. On page 46, the judge delivering the opinion, says:

“We understand the rule to be, that where a contract is made in one state to be performed in part in another, and an action is brought for a breach of that part of the contract, the rights of the parties must be determined according to the law of the latter state. Story on Contracts, sec. 655; Barton v Wheeler, 49 N. H., 9. ”

The decision in the case above referred to, in the United States Supreme Court, is to the contrary. Mr. Justice Gray, delivering the opinion, says: (129 U. S., 397, 461), (having determined that the contract was an American and not an English contract):

“This being so, the fact that the place where the vessel went ashore, in consequence of the negligence of the master and officers in the prosecution of the voyage, was upon the coast of Great Britain, is quite immaterial.”

And on page 458, he says:

“The suggestion in Barton v. Wheeler, 49 N. H., 9, 29, that the question, whether the liability of a railroad corporation for goods transported through parts of two states, was that of a common carrier or of a forwarder only, should be governed by the law of the state in which the Joss happened, was not necessary to the decisión, and appears to be based on a strained inference from the observations of Mr. Justice Story, in Pope v. Nickerson, above cited, In a later case, the Supreme Court of New Hampshire resexved any expression of opinion upon a like question. Gray v. Jackson, 51 N. H., 9, 39.”

But, as we have already shown, our supreme court has decided that the laws of the place of performance govern. So that the demurrer to the second defense was properly sustained,

The next question is, whether a contract,signed by a shipper, agreeing upon the valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, will be upheld and the shipper be limited to the agreed valuation, in case of loss through negligence.

It is claimed that this question has been answered in the negative in U. S. Express Co. v. Backman, 28 Ohio St., 144. An examination of that case will show that it was admitted that the goods were of greater value than that agreed upon, and that the carrier knew that fact at the time the contract was made. Jacobson & Co. v. Adams Express Co., 1 O. C. C., 381, is also cited. In that case, the court was of the opinion that there was no special contract. The second syllabus is as follows:

“In the foregoing case, a receipt of the company stating that in no event shall the holder demand beyond the sum of $50.00, at which the article forwarded is valued, “not signed by the shipper and no statement made by him as to value,” is not a valid stipulation against a loss by fraud or negligence, ”

In Hunt v. Penn. Railroad Co., 112 U. S., 331, it is held: “Where a contract of carriage, signed by the shipper is fairly made with a railroad company, agreeing on a valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations.”

The opinion is by Mr. Justice Blatchford, and a careful study of it will show that most of the suggestions made in the argument of the case at bar, are disposed of there. It was contended for the plaintiff, Hart, that the bill of lading did not purport to limit the liability of the carrier to the amount stated in it, in the event of loss through the negligence of the defendant. He shows that the contract is not susceptible of that construction, and then says, it must be presumed from the terms of the bill of lading, that the rate of freight is graduated by the valuation.

“It is further contended by the plaintiff, that the defendant was forbidden, by public policy, to fix a limit for its liability for a loss by negligence, at an amount less than the actual loss by such negligence. As a minor proposition, a distinction is sought to be drawn between a case where a shipper, on requirement, states the value of the property, and a rate of freight is fixed accordingly, and the present case. It is said, that, while in the former case the shipper may be confined to the value he so fixed, in the event of a loss by negligence, the same rule does not apply to a case where the valuation inserted in the contract, is not a valuation previously made by the shipper. But we see no sound reason for this distinction. ”

It is the law of that court as well as of this state, that a common carrier may, by special contract, limit his common law liability; but that he cannot stipulate for exemption from the consequences of his own negligence or that of his servants, and, after reviewing the cases in that court in which it is so held, and stating that the court adhered to the views in them announced, he says, on page 340:

“The agreement as to value, in this case, stands as if the carrier had asked the value of the horses, and had been told, by the plaintiff the sum inserted in the contract. The limitation as to value, has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The compensation for carriage is'based on that value. The shipper is estopped from saying, that the value is greater. The articles have no greater value for the purposes of the contract of transportation, between the parties to that contract. The carrier must respond for negligence up to that value. It is just and reasonble, that such1 a contract,fairly entered into, and where there is no deceit practiced on the shipper, should be upheld. There is no. violation of public policy. On the contrary, it would be unjust and unreasonable, and would be repugnant to the-soundest principles of fair dealing and of the freedom of' contracting, and thus in conflict with public policy, if a shipper should be allowed to reap the benefit of the contract, if there is no loss, and to repudiate it in case of loss.”

In Railway Co. v. Sheppard, 56 Ohio St., 44, an examination of the record discloses that there was no agreed valuation of the horses, but the contract provided, “that in consideration of being released from liability, as hereinafter specified, the said company agrees to transport one car load of horses” at the reduced rates.

The contract in this case is not, as to the question under consideration, distinguishable from the one passed upon in Hart v. Pennsylvania R. R. Co., supra.

That oases dealing with such contracts are to be distinguished from those dealing with contracts providing for a limited liability, is pointed out by Mr. Hutchinson, in his work on Carriers, see. 250.

The service required in the transportation of a race horse, may not be as great as in the case of an ordinary horse, but the risk is greater, and the business cannot be successfully or fairly conducted, unless the charge is based upon the risk as well as the service. This fact was recognized at an early day, and the common carrier was permitted to protect himself from imposition by a special acceptance, and, as Mr. Justice Blatchford points out, contracts such as these may be upheld by the same principle.

If a box or package is so disguised by the shipper as to cause it to resemble such a box or package as usually contains articles of little value, in order to avoid paying a reasonable compensation for its carriage, and the carrier is misled and accepts it as such, the shipper, in case of loss, cannot recover because of his fraud. Hutchinson on Carriers, secs. 214-216; Despatch Line v. Glenny, 41 Ohio St., 166.

If he misrepresents the value of the article, and the carrier is misled, the shipper is at least estopped to claim a greater value.

In the Lottawanna, 21 Wall., 558, 572, Mr. Justice Bradley, speaking of the general maritime law and of the importance of uniformity to the commercial world, says:

“The convenience of the commercial world, bound to gether, as it is, by mutual relations'of trade and intercourse, demands that, in all essential things wherein those relations bring them in contact, there should be a uniform law founded on natural reason and justice. Hence, the adoption by all commercial nations, (our own included), of the general maritime law as the basis and ground work of all their maritime regulations.

Considerations of advantage from uniformity upon a matter of so much importance,as well as of respect for the decisions of the highest court, lead us to hold, in the absence of a decision directly in point by our own Supreme Court, that the plaintiff below is estopped to claim that the horse was worth more than one hundred dollars.

John F. Dye, and L. F. Limbert, for Plaintiff in Error.

T. C. Miller, and Allread & Teegarden, for Defendant in Error.

The court erred in sustaining the demurrer to the first defense.

Judgment reversed. Demurrer to first defense overruled; demurrer to second defense sustained, and cause remanded.


author: Parker, J.

text:
    (Sixth Circuit — Wood Co., O., Circuit Court
    October Term, 1897.)
    Before King, Haynes and Parker, JJ.
    CHRISTINA I. ROUSH v. JAMES H. WENSEL et al.

      Will — Partly written, partly printed—

    (1.) The fact that a will is partly printed and party written, does not make it invalid.

      Contest of will — Order of testimony — Competency—
    (2.) A plaintiff contesting a will on the ground that the testator was without testamentary capacity, having called as witness in chief one of the devisees, who is a defendant and whose interests are adverse, will not be permitted to inquire of such witness’ at that stage of the case, whether he has not admitted or declared that the testator was incapable of transacting business. It is not competent to prove the incapacity of the testator in that way.
    Same—
    (3 ) A non-expert witness will not be permitted to testify to his opinion of the mental condition of a testator until he shall have testified to facts within his knowledge tending to throw light upon shell mental condition and forming a basis for such opinion.

      Same — Cross examination — Adverse witness called in chief—

    (4.) A party calling a witness who does not appear to have any interest in the controversy, will not be permitted to cross-examine him upon the mere assumption that he is an adverse witness.

      Same—

    (5.) A party will not be permitted to ask his own witness if he has not made certain statements out of court, unless such witness has testified to facts inconsistent therewith, and the party has been surprised by such testimony.

      Same — ■
    (6.) A party may not call a witness supposed to be adverse, in anticipation of his being called by the other side, and elicit from him answers otherwise incompetent, with a view of laying ground for his impeachment.
    Error to the Court of Common Pleas of Wood county.
   Parker, J.

On June 25th, 1896, Christina Roush filed her petition in the court of common pleas of this county attacking the validity of a will made by John Wensel, making defendants to her petition James H. Wensel and all other persons who appear to be interested, as required by sec. 5859 of the Revised Statutes, The date of the will referred to is January 25th, 1896. Its validity is attacked on the following grounds:

1st. That said John Wensel,at the time of said paper writing, was not of sound mind and memory, but by reason of extreme old age,long continued ill health and protracted sickness, he was mentally incapacitated from making any valid will or a proper distribution of his property.

2nd. That the said John Wensel,at the date of said paper writing, was under restraint, and was coerced into signing the same by the undue influence of the defendant James H. Wensel, and by false and fraudulent representations of the said James H. Wensel and certain other persons, who urged him continuously to make the so-called will in the manner and form m which it now appears.

3rd. That the said paper writing, purporting to be the last will and testament of the said John Wensel, was by him in his lifetime revoked.

4th. That the said supposed will is not in writing, as required by sec, 5916 of the Revised Statutes of Ohio.

The will in question, with the proof and probate, is with the papers, and it appears that part of it is written and part of it is printed; the parts which are printed being the introductory clauses and the téstimentary clause. I may as well give the parts that are printed. It starts out in print “The last will and testament of,” and then is written in “John Wensel;” then printed11 of” and then written “Montgomery township, Wood county, Ohio;” and then printed “In the name of Benevolent Father of All: I, the said,’’then written “John Wensel;” then printed “being of sound and disposing mind and memory, considering the uncertainty of continuance in life, and desiring to make such disposition of my worldy estate as I deem best, do make, publish and declare, this to be my last will and testament; hereby revoking and annulling any and all former wills whatsoever by me made. First: I desire all my just debts and funeral expenses to be paid as soon as possible after my decease’ ’ then written “by my son James H. Wensel.” Then printed “Second: I give and bequeath, ” and then follows in writing about two pages of devises and bequests of his property; and then, at the close of the will,is printed “I nominate and appoint” written “my son James H. Wensel;” printed “to be executor of this will;” written “I desire that no appraisement be made;” and printed “In witness whereof I have hereunto set my hand and seal this,” written “25th, printed, “day of,” written, “January,” printed “in the year eighteen hundred and ninety” written “six”, and the name of the testator is signed. The clause following is partly written and partly printed

It is said that because these parts which I have mentioned are printed, the will is invalid, and we are referred to section 5916 of the Revised Statutes in support of that claim. This section was amended on the 17th of April, 1896,some-time after the execution of this will, but before the death of the testator, he having died on the 5th day of June, 1896. At the time this will was written the statute read as follows:—

-“Every last will and testament (except nuncupative wills hereinafter provided for) shall be in writing and signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of such party, by two or more competent witnesses, who saw the testatdr subscribe, or heard him acknowledge the same.”

The amendment consists of the addition of the following words: “and may be handwritten or typewritten”, so that it now reads, “Every last will and testament (except nuncupative wills hereinafter provided for) shall be in writing, and may be handwritten or typewritten, and such will shall be signed at the end thereof, etc.” It seems to us that there was much less difficulty about the matter before the statute was amended. That it was easy enough to arrive at a conclusion before this amendment of the statute, that a will printed or partly printed would be a written will; but the legislature seems to have deemed it necessary to make it more specific as to typewritten wills, and in doing so they have put into the statute something which throws a doubt upon the validity of a printed will, or one partly printed.

Nevertheless we conclude that the subject is covered by another provision of the statute. Section 4947, is the first section of part third,remedial part of the Revised Statutes. The chapter on “Wills” reads as follows: “In the interpretation of part third, unless the context shows that another sense was intended, the word ‘person’ includes a private corporation, writing’ includes ‘printing,’ etc.”

So that we hold the “writing” as used in section 5916 of the Revised Statutes, includes “printing”, and that a printed will signed by the testator is valid.

After the plaintiff had rested her case, the defendant moved the court to direct the jury to return a verdict for the defendants in said cause, which motion the court sustained and directed the jury accordingly, to which plaintiff excepted, and a verdict was returned by the jury accordingly. Thereupon the plaintiff undertook to prepare a bill of exceptions incorporating all of the evidence, so that the question of whether the court erred in sustaining this motion might be submitted to this court. Now we find that the first thing that was offered by the defendants in evidence, as required by the statute, was this will and the record of probate. That part of the bill of exceptions reads as follows:

“The defendants offered in evidence the record of probate of the will of John Wensel, deceased, which is hereto attached, marked, Exhibit A” and made a part of the record in this cause”;

But it is not attached. It is not made a part of the bill of exceptions. The rules require that any exhibit that might be made a part of the bill of exceptions shall be attached to the bill. There are some things of course that cannot be attached, that it is physically impossible to attach to a bill of exceptions, and therefore the attaching of such exhibits may be excused or dispensed with. Notwithstanding that this exhibit has not been attached, we have looked into and have considered the questions raised, though we are not required to do so,and are not certain that we have any authority to do so, but our conclusions about the matter are such that no harm can come from it.

Now, on the trial of the case, the defendant, James H. Wensel, was called by the plaintiff in chief to maintain the issues on her part, and was asked certain questions about declarations made by himself as to the mental condition of the testator and to the effect that the testator was not capable of transacting business and should have a guardian. We cannot see how at that stage of the trial, that kind of questions, especially by counsel for the plaintiff, of a witness, whom he had put upon the witness stand to support his claim, could be competent. We can hardly see how it can be competent at any stage of the case. It certainly would not be competent for the purpose of showing imbecility or want of testamentary capacity on the part of the testator to call a witness and ask him if he had not stated to someone that the testator was not competent to transact business with a view of eliciting -from him a declaration or admission that he had so stated. Nor would it be .competent to call as a witness a party to the suit, assuming that he was adverse, and undertake to lay the ground for his impeachment before he had been made a witness by anyone else for any purpose. He might not be produced as a witness upon the part of the defendants in the case at all; then, of what use or consequence would it be to call him and ask him certain questions, and then undertake by other witnesses to impeach him?

It would be like setting up a man of straw and knocking him down again, and would be making no progress in the case at all. We find nc error in the ruling of the court upon these questions. On pages 16 of the record, Mr. Van Voorhis, a witness on behalf of the plaintiff, was asked the. following questions:

“Q. I desire to ask you now, Mr. VanVorrhis,from what you saw of his condition and from the situation, and from the facts that you have stated, was he capable of carrying on ordinary business?”

The defendant objected and the court asked:— “What time?” And counsel answered,“InjJanuary, 1896.” It appears that the will was made on or about the 5th day of January, 1896. The court sustained the objection, and counsel for plaintiff stated,

“We except, and expect to show that this party would say that he was not capable of performing the ordinary business affairs of life.”

Now, the witness, Van Voorhis, was not an expert, and it is not pretended that he was either a physician or expert on mental diseases, but he is asked to testify from his knowledge of certain facts. He is asked to express an opinion after having made certain observations. Looking into that which proceeds the question to which I have referred and which is supposed to form a basis for this inquiry, we find that the witness has testified that the testator was sick at the time he was referring to, and had been sick for some time, and he makes it very clear by his testimony that the testator was physically weak. He also states that the last time he was there he thought the testator was “a little flighty”. Just when this last time was, is not very clear, but that is the most he says — 'the strongest statement that he makes tending to show that.anything whatever had even temporarily affected the mind of the testator.

He was asked this question further on:

Q’. “Now state to the jury what, if any, changes you noticed and what they were?” A. “Well I don’t know as I can answer that question.”

Q. “Physically, what difference did you notice?” A. “I said he was feeble.”

Q. “Did you notice any difference in his mental condition? That is to say, in his condition while he was sick from what he had observed while he was well. A. No, I don’t,think I did; he did not say much. I generally asked him how he felt and made a few remarks and that is all that was said. ”

Now,upon what kind of preliminary examination the plaintiff claims the right to ask the witness and have him testify as to the mental condition or capacity of the testator? A non-expert witness may testify to his opinion of the mental condition of a person in connection with certain facts previously related and upon which he basis such opinion. He must state his observations and upon what he founds his opinion, but it must appear that those facts — those circumstances — are such as have a tendency, at least in some degree, to indicate mental weakness. There is nothing whatever in the testimony of this witness of that character, and nothing that we think would authorize him to express any opinion as to the mental condition of the testator. These observations apply to another witness whose name I do not now recall. There is a question of another character further along in the record which was excluded, but that is covered by what I have stated about the testimony that they attempted to elicit from the witness, James H. Wensel. At pages 50 and 51 of the bill of exceptions it appears that while Fred Heminger was testifying on behalf of the plaintiff, the following questions were asked:

“Q. Now I will ask you if you had any conversation with Henry Wensel in relation to the guardianship of the old man ?”

“Defendant objected, and exception.

“Q. I will ask you, Mr. Heminger, if on or about June 20th, 1896, in Bowling Green, Ohio, in conversation with Mrs. Roush and J. A. Bush you did not state to them that you stopped Henry Wensell from coming here to have a guardian appointed for the old man about the time Kabig got the stock two years ago?

“Defendantobjected and exception.

“Q. I will ask you as to whether on or about some time in the year, Í895 or’96,you did notstate to Dan Heminger—

“Defendants objected; sustained and exception, and the court said to plaintiff’s counsel:

“The record may show that the court will not allow counsel to cross-examine his own witness.”

We can see nothing in the record that would authorize this kind of questioning. Counsel does not seem to have been taken by surprise by any statement upon the part of the witness. He simply puts him upon the stand,- and attempts to elicit by his cross-examination, statements that counsel seem to have knowledge of. There is no offer to prove anything in answer to any of these questions, and that is sufficient reason for disregarding the exception, and we think the ruling of the court was correct upon the ground that the court places it — 'that there was nothing in the circumstances that would authorize the plaintiff to cross-examine his own witness.

James & Beverstoclc, for Plaintiff in Error.

Baldwin & Harrington, for Defendant in Error.

As I have stated, the court directed a verdict, We have looked carefully through this record, and we cannot find any evidence tending to support the allegations of the petition to the effect that John Wensel was not of sound mind and memory at the time he made this will, or that he was under restraint or coerced, or that there was any fraud practiced upon him, or that he had in his lifetime revoked his will, and therefore we hold that the court did not err in directing the verdict and the judgment will be affirmed.