text:
    AUTHORITY TO RELOCATE PORTION OF AN INTERURBAN LINE.
    Circuit Court for Summit County.
    Christian Reusch v. The Northern Ohio Traction & Light Company.

    Decided, 1912.

      Bills of Exceptions — Taken in Time to Oover Preliminary Hearing in Appropriation Case, When — Statement of Grounds for New Trial— Right of Intermitan RaiUcay to Appropriate Land for Relocation of Line — Greatest Distance from Old Line One Mile — Meaning of the Words “Construction” and “Necessity” as Used in the Statute — Section 9119.
    1. It is not necessary that a motion for a new trial follow the exact
    language of the statute, if the causes enumerated as grounds for a new trial are such as are embraced within the meaning of the statute.
    2. In an action by an interurban railway company for the appropriation
    of land, a bill of exceptions is taken in time to preserve the case for review as to the preliminary hearing, if the time allowed for such filing has not expired when computed from the overruling of the ■motion for a new trial.

      3. When it becomes necessary for an interurban railway company to make changes in the construction of its road, or to relocate its tracks in order to avoid dangerous or difficult grades or curves or to shorten its line, the word "construction” as used in the statute will be held to include such alteration and to empower the company to appropriate land therefor.
    4i The “necessity”-required under the statute to authorize an appropriation of private property fpr -railway purposes, is a reasonable as distinguished from an absolute necessity, and such reasonable necessity is established when it is shown that dangerous curves and grades will be thereby eliminated and the road made safer and its service to the general public rendered more efficient.
    Niman, J.; Winch, J., and Marvin, J., concur.

      Affirmed without opinion, Reusch v. Northern Ohio Traction & Light Co., decided January 27, 1914.

   This proceeding in error had its inception in an action begun by the defendant in error, the Northern Ohio Traction & Light Company, in the Probate Court of Summit County, to appropriate land belonging to Christian Reusch, the plaintiff in error, for a right-of-way. A preliminary hearing was had in the probate court as required by law and the questions at issue in that hearing having been decided in favor of the plaintiff in that action, a jury was called to assess the damages for the land taken. After the jury had returned a verdict assessing the damages for the taking of the land, the defendant in the action filed a motion for a new trial, which was overruled by the probate court and judgment entered for the plaintiff.

Error was then prosecuted by said defendant to the court of common pleas to reverse the judgment of the probate court. In the court of common pleas the petition in error was dismissed and the judgment of the lower court affirmed, and it is to review the action of the court of common pleas that the plaintiff in error brings this proceeding in error.

At the outset, it is urged by the defendant in error that the plaintiff in error is without standing in this court to ask for a review of any errors which the probate court may have committed in the preliminary hearing, for the reason that the bill of exceptions was not taken in time to preserve the case as to the preliminary hearing for review. A determination of the merits of this contention is therefore necessary at this time. Section 1104-6, G-eneral Code, provides:

“On the day named in a summons first served, or publication first completed, the probate judge shall hear and determine the questions of the existence of the corporation, its right to make the appropriation, its inability to agree with the owner, and the necessity for the appropriation. Upon all these questions the burden of proof shall be upon the corporation, and any interested persons shall be heard. ”

Exceptions were duly taken by the plaintiff in error to the findings of the probate court on the preliminary questions, which said court was required to determine under the section of the statutes quoted, to the overruling of a motion for a new trial and to the entry of the judgment for appropriation. The bill of exceptions was allowed, signed and filed within the time required by law if the time is to date from the overruling of the motion for a new trial; but if, on the contrary, the time is to be computed from the day upon which the preliminary and jurisdictional questions were determined, it was not filed in time, and, in the latter event, there could be no review of the matters involved in such preliminary hearing.

In The Pittsburgh, Cleveland & Toledo Railroad Co. v. Tod, 72 O. S., 156, it was held:

“In proceedings for the appropriation of property by a private corporation, the determination of the preliminary questions by the probate judge, as required by Section 6420, Revised Statutes, may be reviewed on error.
“A motion for a new trial, or rehearing, of such preliminary questions is not necessary.
“The time within which a bill of exceptions on such hearing should be taken is to be computed from the day on which said questions are determined, if no motion for a new trial is filed, and if a motion for a new trial is filed, from the day the motion for a new trial is overruled.”

In The Dayton & Union Railroad Company v. The Dayton & Muncie Traction Company, 72 O. S., 429, the syllabus reads as follows:

“Although it may not be necessary to file a motion for a new-trial at the time of the hearing of the preliminary questions in an appropriation proceeding, under Section 6420, Revised Statutes, in order to bring upon the record errors occurring upon such hearing; yet if such errors come within any of the causes for a new trial as defined in Section 5305, Revised Statutes, the aggrieved party may include the same in a motion for a new trial to be filed within ten days after the verdict is rendered in such appropriation proceedings, as provided in Section 6432, Revised Statutes. Weaver v. Columbus, Shawnee & Hocking Valley Railway Co., 55 Ohio St., 491, approved and followed.
' ‘ If such motion for a new trial should be overruled, the time for filing a bill of exceptions must be reckoned from the date of the overruling of the motion for a new trial.”

If, therefore, the errors sought to be reviewed by motion for a new trial were such as came within any of the causes for a new trial, as defined in Section 5305, Revised Statutes, now Section 11576, General Code, the time within which the bill of exceptions should be filed to secure a review of such errors should date from the overruling of the motion for a new trial, because by such motion the matters governed by it and embraced within the provisions of Section 11576, General Code, while having once been passed upon by the trial court were nevertheless by such motion again brought to the attention and review of the court.

The motion filed in the probate court by the plaintiff in error specified the following grounds:

First, the petitioner has no right to make the appropriation sought to be made herein.

Second, there is no necessity for the appropriation herein sought.

Third, the court is without authority to impanel a jury in this case.

These grounds in the language stated are not found in Section 11576, General Code; but, in our opinion, the questions raised by this motion could have been raised equally as well if the plaintiff in error had resorted to the language of the sixth subdivision of Section 11576, General Code, which is “that the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law”; or if he had made subdivision eight of said section the .ground of his motion for a new trial, which reads: “Error of law occurring at' the trial and excepted to by the party making the application.”

It is not necessary that a motion for .a new trial follow the exact language of the statute. If the causes enumerated as grounds for a new trial are such as are embraced within’ the meaning of the statute, it is sufficient.

We conclude, therefore, that the bill of exceptions was filed within the time required by law, and that it preserved for review the errors alleged to have occurred in the preliminary or jurisdictional hearing, embraced within the motion for a new trial.

The errors alleged to have occurred on the preliminary hearing in the probate court are:

First, that the court erred in determining that the plaintiff there had the right to make the appropriation sought; and

Second, that the court erred in determining the question of the necessity for the appropriation in favor of the plaintiff.

Third, that the findings of the probate court are insufficient.

Section 9119, General Code, as amended May 10, 1910 (101 O. L., 622), reads as follows:

“Street, interurban or suburban railroads using other than steam as motive power, when necessary may enter upon and use private property in the construction, alteration and operation of its road or any part thereof and for such purposes shall have all of the rights and powers of appropriation, outside of municipalities, that steam railroad companies possess. ’ ’

'The Northern Ohio Traction & Light Company is a corporation organized under the laws of the state of Ohio and authorized by its charter to operate street railroads. It is the owner of' a line of interurban street railroads, a part of which passes through the township of Northfield, in Summit county, Ohio. The land sought to be appropriated is in the township of Boston, in said county. The appropriation of this land is sought for the purpose, as stated in the petition, of altering the location and grade of the company’s interurban street railroad in order to change and avoid dangerous and difficult grades .and curves, render its said line of interurban street railroad more safe for public travel, facilitate the movement of traffic in the operation of its interurban street railroad, and to enable said company to perform more efficiently and satisfactorily its duty to the public as a common carrier of freight and passengers:

As originally constructed, that portion of the company’s road between Cuyahoga Falls, in said county, and Chittenden’s Corners in said Boston township, was constructed on a private right-of-way except about one mile. The balance of the line running toward Cleveland was on the public highway. The plans of the company now involve the taking of the tracks from the public highway and relocating and re-constructing the same from'Chittenden’s Corners northerly to a point near Bedford in Cuyahoga county, and as a part of these plans the taking of the land of the plaintiff in error. The result of the carrying out of these plans will be to place the entire track from Cuyahoga Falls to Bedford on a private right-of-way, except for a distance of about one mile northerly from, the power house at Cuyahoga Falls. The proposed new location will be easterly of the present one and the remotest point thereof will be about one mile from the present location.

It is argued on behalf of the plaintiff in error that Section 9119, General Code, above quoted, confers no .right upon a street railroad or an interurban or suburban railroad company, to make such a change of its track as is contetnplated in this case; and that the purpose of this section of the statutes is simply to regulate the manner of exercising the powers of appropriation when the right of appropriation is elsewhere conferred. It is further contended that no such right as is claimed on behalf of the company is anywhere conferred under the statutes of this state, and that therefore the company is without right to make the appropriation in question. The language of said section, however, is clear and unambiguous. A railroad of the class enumerated therein, “when necessary may enter upon and use private property in the construction, alteration and operation of its road or any part thereof.”

It was held in Commissioners of Lorain County v. Railway Company, 11 C.C.(N.S.), 419, that:

“The word ‘construction’ as used in Section 3284, providing that a railroad company in the construction of its road-bed may divert a road or stream of water when necessary, is not limited in its. application to the original building of the railroad, but gives the right, in making a change of grade as authorized by Section 3277, to divert the course of a highway for the purpose of avoiding annoyance to the public and dangerous or difficult curves or grades.”

Following the principle of this decision, the word “construction” in Section 9119 should not be limited in its application to the original building of the company’s road; but should be considered as relating also to the making of the.road, or parts thereof, in such new location as necessity may require, conforming, of course, to the general route prescribed in the articles of incorporation.

We are of the opinion also that the word “alteration” should not be given the limited meaning contended for on behalf of the plaintiff in error. The necessity of an alteration of the company’s line having been shown, it would be inconsistent with the language and clear purpose, of the statute to require the alteration to be confined within the limits of the existing location of the road. The power conferred by the express terms of the statute upon railroads of the kinds enumerated to enter upon and use private property when necessary in the alteration of their roads, heeessardy implies that such railroads have the right to change their route to the land so appropriated, otherwise the power conferred would be useless.

In State v. Bregesson, 108 Wis., 241, the court said:

“The alteration of a highway, as the word itself indicates, means the change of course of an existing, highway, leaving it substantially the same highway as before, but with its course in some respects changed. While the alteration will necessarily require the condemnation of additional lands, and will result in the vacation or discontinuance of that part of the former highway not included within the limits of the altered course, the proceeding to alter a highway does not thereby become a proceeding to lay out a new highway or to discontinue an old one. The proceedings are separate and distinct, and intended so to be, and a new and separate highway can not be laid out upon an application to alter an existing highway.”

If, therefore, it becomes necessary for a railroad company, of the kind named in the statute, to make changes of construction in its road, or to alter its line of tracks, it seems clear .that the language of. the section of the statutes under consideration is comprehensive enough to authorize the company to appropriate private property for that purpose, the rights and powers of appropriation outside of municipalities being exercised in the same manner as by steam railroads.

The fact .that a change of location of a portion of the company’s track results, is no objection to the exercise of the right conferred, the necessity being shown therefor, provided there is no departure from the general route of the said railroad as prescribed in the company’s articles of incorporation. Whether any public authorities can object to the change of location of the road, or whether the plaintiff in error can so object by some other method, is not the question to be considered.here.

We think, therefore, that the probate court committed no error in determining the right of appropriation in favor of the plaintiff in the action.

To decide whether the probate court erred in finding in favor of the necessity of the appropriation, requires a consideration of the meaning of the word “necessary” as used in the statute. We think that when the word “necessary” is used in a statute of this kind, conferring the right to take private property for the uses specified, a reasonable and not an absolute necessity is intended.

This was the interpretation placed upon the word “necessary” in Village of Wayzata v. Great Northern Railway Co., 67 Minn., 385, where it was held:

“Under a law which authorizes a railroad company to construct its road along and over any .public or private'way, if it shall ‘be necessary,’ a practical and not an absolute necessity is intended; and the burden of proof would be upon the company to show- this practical necessity, if questioned when originally locating the line. ’ ’

A similar construction was placed upon the word “necessary” in Aurora & Geneva Railway Company v. Harvey, 178 Ill., 477, where it was held (quoting ffrom syllabus):

“The word ‘necessary,’ used in the Horse and Dummy Railroads Act of 1874 (Revised Statutes, at Tt874, page 571) with reference to the right of a street railway company to condemn private property for the construction, maintenance or operation of the road, does not mean ‘absolutely necessary,’ but ‘expedient, reasonably convenient’ or ‘useful to the public.’ To avoid a' dangerous grade crossing with- a steam railroad, or a dangerously steep grade terminating at the bottom in a sharp curve, a street railway company may leave the highway and condemn a right-of-way around such obstacles over private property, in order to conserve the safety, comfort and convenience of the public.”

This case, from its similarity to the one under consideration, and the thorough discussion of the principles involved, is an important one, and is of material assistance in disposing of the question to be decided here. The statute there relied upon, conferred power upon a street or horse and dummy railroad to take private property and declared that “when it is necessary for the construction, maintenance or operation of such road, or the necessary sidings, side-tracks or appurtenances, to take or damage private property, the same may be done. ’ ’

The company in that case proposed to leave the highway and construct its road over private property for a distance of about a mile and a half for the purpose of passing under a railroad, and, failing to obtain all of the necessary property by purchase, brought its action to appropriate some of the property desired for carrying out its purpose.

Mr. Justice Wilkin, in delivering the opinion of the court, said:

“Counsel for appellees contend that the ‘necessity’ required by the statute in relation to horse and dummy railroads, means an ‘absolute necessity,’ a necessity so great that in the case at bar, if it is physically possible for appellant to construct and maintain its railroad upon the highway there is no right to condemn. We do not think such a strict interpretation should be placed upon the language of the statute. In the former opinion herein referred to we said: ‘ If, in the construction of the road in the highway, difficulties or obstructions were encountered whieh rendered it impracticable to construct the road in the highway, a necessity might arise, within the meaning of the law, whieh would authorize the company to leave the highway and go upon private property. ’ And again: ‘ In the construction of the road, if a necessity existed for making a deflection from the highway in order to avoid a heavy grade which would ^prevent a successful operation of the road, defendant in error would no doubt have the right to take and condemn private property to obviate the difficulty.’ The safety, comfort and convenience of the traveling public require protection, and the policy of the state must be to compel railroad companies to so build their roads as to conserve the safety of its citizens to as high a degree as is reasonably attainable in view of the character and exigencies of that mode of transportation. In the construction of statutes relating to the taking of private property the word ‘necessary’ should be construed to mean ‘expedient,’ ‘reasonably convenient’ or ‘useful to the public,’ and can not be limited to an absolute physical necessity. This, we think, was certainly the intention of the Legislature when the act was passed. The view here expressed seems to be well supported by.the authorities.”

See also Buck v. Seymour, 46 Conn., 156; Milwaukee & St. Paul Ry. Co. v. City of Milwaukee, 34 Wis., 271; Commissioners of Parks v. Moesta, 91 Mich., 149.

The necessity which the Northern Ohio Traction & Light Company was required to establish being a reasonable and not an absolute necessity, we are of the opinion that the probate court committed no error in determining this branch of the preliminary hearing in its favor. The evidence on this issue was sufficient to establish the reasonable necessity of the appropriation of the land of the plaintiff in error described in the petition filed in the probate court, for the purpose of eliminating dangerous grades and curves in the company’s road, rendering it safer for those who had to travel thereon, and furnishing more efficient and satisfactory service to the general public.

There remains for consideration the contention of the plaintiff in error that the findings of the probate court are insufficient The insufficiency is asserted to consist in the failure of The court to find, as required by Section 8754, General Code, “that the property and rights of those owning real estate along the portion of the road to be affected by the change will not be unreasonably affected.”

The journal entry in the probate court contains a finding that the allegations of the petition are true, and the petition contains the allegation, “that the property rights of said defendants will not be unreasonably .injured by said change.”

The finding of the court on this subject, therefore, was sufficient.

As a result of the conclusions announced on the errors assigned, the judgment of the court of common pleas must be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    METHOD OF LISTING BANK SHARES.
    Circuit Court for Lorain County.
    C. M. Irish v. T. W. Fancher and C. M. Irish v. T. W. Fancher.
    Decided, April 29, 1908.

      Taxes — Bank Shares — Insolvency of Bank.

    Taxes on shares of stock in an insolvent hanking corporation can not be collected from the assignee in insolvency of such corporation.
    Marvin, J.; Winch, J., and Henry, J., concur.
   Two cases under this title are on our docket; the one a proceeding in error to the judgment of the court of common pleas and the other an appeal from the same judgment. Suit was brought by Irish, as treasurer of Lorain county, against Fancher, as assignee of the Citizens Savings Bank Company, for the collection of taxes, which, it is averred, stood charged against said banking company upon the books of the auditor of the county. The allegations are that the banking company is a corporation organized under the laws of the state of Ohio for banking purposes, that it is insolvent and that the defendant is the duly appointed and qualified assignee of such insolvent banking company under the laws of Ohio, followed by the averments that $671.92 stands assessed upon the duplicate of the county, as taxes, upon the personal property of this insolvent banking company. The petition further avers that the claim for these taxes was presented to the assignee and that .it was rejected; the prayer is that the defendant be ordered to pay these taxes in preference to all other claims which shall be held against the banking company.

Since the result, as we view the case, is the same whether we retain the case on appeal or on error, and since we are inclined to the opinion that the relief sought' in the case would involve the equitable jurisdiction of the court, we have decided to and do dismiss the proceeding in error, and proceed to consider the case upon appeal, and the only question which need to be considered in the ease is whether the banking company could be held liable for these taxes. For if it could not, surely the assignee can not be held.

It is .provided by Section 2859, Revised. Statutes of Ohio, that the treasurer of the county may bring suit against any person against whom any personal taxes shall stand charged, which shall not have been paid within the time -prescribed by law for the payment of such taxes. But, it is urged that the taxes for which this suit is brought were never properly levied against this banking company, and this because of the provisions of the several sections of the statutes relating to the taxing of the capital of incorporated and unincorporated banks' in the state of Ohio. By Section 2762, Revised Statutes of Ohio, it is provided that all the shares of the stockholders in banks shall be listed.

By Section 2765, Revised Statutes of Ohio, it is made the duty of the cashier of such bank to make out a return to the auditor of the county in which such bank is located, exhibiting in detail the resources and liabilities of the bank, with a full statement of the names and'residences of the stockholders therein, with the number of shares held by each and the par value of each share.

By Section 2766, Revised Statutes of Ohio, it is provided that the auditor, after having fixed the value of the shares by 'the process set out in these sections, shall make out and transmit to the state board of equalization for banks a copy of the report so made by the cashier.

By Section 2839, Revised Statutes of Ohio, it is provided'that taxes assessed on any shares of stock, or'the value thereof, of any bank or banking association, shall be and remain a lien on such shares, etc., and that in ease of the non-payment of such taxes within the time required by law by any shareholder, and after notice received from the county treasurer of the non-páymentof such taxes, it shall he unlawful for the cashier or other officer of such bank or hanking association to transfer or permit to be transferred the wliole or any portion of said stock, until the delinquent taxes thereon, together with costs and penalties, shall be paid in full, and no dividend shall be paid on any stock feo delinquent, so long as such taxes, penalties and costs or any part thereof, remain due and unpaid.

By Section 2840, Revised Statutes of Ohio, it is provided that it shall be lawful for any "such bank or banking association to pay to the treasurer of the county in which such bank or banking association may be located, the taxes that may be assessed upon its shares as aforesaid, in the hands of its shareholders, respectively, and deduct the same from any dividends that may be due or may thereafter become due on any such shares, or deduct the same from any funds in its possession belonging to any shareholder as aforesaid.

From these various provisions of tbe statutes, it seems clear ibat tbe manner of assessing taxes upon stock in Ohio and of collecting tbe taxes thereon, contemplates the assessment to he made against the shareholders. The cashier of the bank makes a return to the auditor of the property of the hank, hut he, at the same time makes a return showing tbe names and places of residence of the several stockholders, together with the amount of stock held by each. This would seem to he for the purpose of enabling the auditor to fix tbe amount of taxes to be paid by each ; and then the provisions that if the shareholders fail to pay, the taxes shall he a lien upon the several shares, and the stock shall not be transferred, and also the further provision in Section 2840 that the bank may pay the taxes assessed upon its shares in ’ the hands of its shareholders and deduct from each the amount of the taxes paid for him, clearly, is a convenient way of paying taxes when a bank is entirely solvent, and tbe result would be exactly the same as though the several shareholders paid; but in a case like the present one, where the bank is insolvent, if we were to hold that the assignee should pay these taxes out of the assets of the bank, then we should be taking from the general creditors the money to pay taxes upon the stock which absolutely is of no value, and which taxes the law seems to contemplate shall be paid by the shareholder, except where, for convenience, the bank chooses to pay them for him.

In the case of Miller, Treasurer, v. The Bank, 46 O. S., 424, it is said in the syllabus:

"There is no authority in the statutes of the state, nor of the United States, for listing and valuing the shares in a national bank in the aggregate, and placing such aggregate on the tax list in the name of the bank. Such shares, when listed and valued for taxation, are required to be placed on the proper tax list in the names of the respective owners. ’ ’

And in the opinion in this case, it is clearly shown that the taxation of the stock in national banks is upon the same basis as that of state banks and governed by the same statutes.

We reach the conclusion, therefore, that the petition of the plaintiff must be dismissed.


text:
    ACTION ON NOTES ENDORSED IN BLANK AND LEFT WITH ATTORNEY FOR. COLLECTION, WHO USED THEM AS COLLATERAL.
    Court of Appeals for Wood County.
    Charles F. Gottschalk et al v. Charles E. Brown et al.
    Decided, May 8, 1913.

      Inconsistent Remedies — Application of Doctrine of Election — Stipulation Signed by Attorney and Tacitly Assented to by those He Represents — Judgment Against One Defendant Followed by Application for Judgment Against a Co-Defendant.

    1. Wliere two or more defendants in an action are represented by the same attorney, and he agrees to and signs a stipulation of settlement which is entered in the case, the defendants represented by him will be held to have had notice thereof, and one of them who tacitly assented thereto will not thereafter be released therefrom on the ground that he did not sign the stipulation individually.
    2. The doctrine of election between inconsistent remedies does not apply to a plaintiff who, pursuant to such stipulation, takes judgment against one of the defendants and thereafter applies for judgment against the other defendant.

      Charles T. Lawton and N. B. Harrington, for plaintiffs in error.

      Benj. F. James and G. C. Nearing, contra.
    Chittenden, J.; Kinkade, J., and Richards, J., concur.
    Error to Common Pleas Court of Wood County.
   The facts as shown by the record are substantially as follows: On the 14th day of .August, 1908, Joseph Gottschalk sold his farm to the defendant, Charles E. Brown, for a consideration of $10,500. Six thousand dollars was paid in cash and the balance of the purchase price was evidenced by nine promissory notes of $500 each, secured by a mortgage upon the real estate sold. After the execution of these notes, Gottschalk deposited the notes, together with the mortgage, with Edward Beverstocb, an attorney at law, who had prepared the papers. He endorsed the notes and the mortgage in blank and Beverstock, by a written agreement, undertook their collection without cost or expense to Gottschalk. Thereafter, without any authority from Gottschalk Beverstock wrote over the signature of Gottschalk upon the mortgage an assignment of the same to himself, and also without authority endorsed upon the notes above Gottschalk’s signature “without recourse on me.” .

On the 28th day of July, 1910, Joseph Gottschalk died and the plaintiffs in this 'action are executors of his will. Four of the above mentioned notes were paid in full during the lifetime of Mr. Gottschalk and the proceeds were duly accounted for. Prior to the death of Mr. Gottschalk a payment of $300 was made to Beverstock by the defendant Brown to be applied upon the note maturing in September of that year. This three hundred dollar payment at the time of the commencement of this suit had not been accounted for by Beverstock.

After the death of Mr. Gottschalk the executors served a written notice upon the. defendant, Charles E. Brown, advising him that they were executors of the estate of Joseph Gottschalk and that any monejr due the estate should be paid to them, as such executors, and further notifying him that no one else had authority to receive any money or prope^r due the estate. Thereafter, in September of that year the defendant Brown paid to Beverstock the balance due upon the note maturing in September, amounting to about $205, and also paid to him the note maturing the following March amounting at that lime with interest to $512.50.

After these notes had been deposited with Mr. Beverstock he pledged them to the First National Bank of Bowling Green as collateral security to an indebtedness of himself and wife to the bank. It is conceded that the bank was a bona fide holder of these notes to the extent of the indebtedness to which they were deposited as collateral security.

On the 16th day of. December, 1910, the plaintiffs filed their petition in this cause to obtain judgment upon the unpaid notes and to foreclose the mortgage securing them. On the-day following, to-wit, December 17th, 1910, the defendant, Charles E. Bi-own, with his attorney went to the bank for the purpose of paying the notes and obtaining possession of them. It may be mentioned at this point that the defendant Brown had the right to pay those notes at any time by virtue of the provision to that effect contained in the mortgage.

Thereafter on the 26th day of February, 1.912, a stipulation of settlement was entered into between the executors and Edward Beverstock, whereby he agreed to pay to them the sum of $2,500, which was to be paid in installments as set forth in the- stipulation. The stipulation provided that if the installments were not paid in accordance with the stipulation, “that plaintiffs were to have judgment against said Edward Beverstock upon the first day of the next term of the common pleas court, to-wit, April 8th, 1912, for the full amount of the claim sued upon in said cause No. 16602, less such payments as he shall have made thereon under this stipulation, and plaintiff was to be further privileged to proceed with the trial and determination of the issues in said cause No. 16602 as to the defendant, Charles E. Brown, and defendants other than Edward Beverstock, for the recovery of whatever may be still owing on said judgment, and the decree of foreclosure as prayed for in said cause was to be continued on the docket for that purpose but without prejudice to the rights of said parties other than Edward Beverstock.”

This stipulation of settlement was made in this cause and embraced another action pending in the Probate Court of Wood County. The stipulation was filed in this cause without objection or exception by any party, and all parties assented thereto by consenting to the halting of the proceedings, so that the term* of the stipulation might be carried out.

At the time of the execution of this stipulation the defendant, Edward Beverstock, paid to the plaintiffs $875. He made no further or other payment, and in accordance-with the stipulation a judgment was thereafter entered against him in the sum of $1,953.73. The cause thereafter came on to be heard upon the issues between the plaintiff and the defendants Brown. A judgment was rendered in favor of the defendants, Charles E. Brown and Julia E.' Brown, and this action is prosecuted to reverse that judgment.

The court made a separate finding of its conclusions of fact and law, and the defendants, Charles E. Brown and Julia E. Brown, present a bill of exceptions and contend that the evidence does not support the finding of fact, but does show that defendants are- entitled to a judgment in their favor. The plaintiffs in error contend that upon the finding of fact as presented, the judgment should have been in their favor instead of in favor of the defendants, and ask for a final judgment in their favor here upon the findings of fact. The judgment below was planted upon the conclusion of law that in taking the judgment against Edward Beverstock as above mentioned, the plaintiffs elected to proceed on their remedy against the said Edward Beverstock, and thereby released and surrendered their right to further proceed to recover from the defendant, Charles E. Brown, and that by such election their right to recover judgment against the defendant Brown became extinguished. This question has been argued at length, and the court have made a careful investigation of the question and have reached the conclusion that there is no evidence of an election of inconsistent remedies shown by the record in this case, which precludes the plaintiffs from recovering a judgment against the defendants Brown. It is clear that there was no intention to make an election at the time of commencing the suit, as both Brown and Beverstock were joined as defendants in the original action. No objection to this joinder was made by the defendants Brown at any stage of the proceeding. We express no opinion whatever as to whether such objection, if made, would have been sustained, but we see no reason why the defendants Brown should raise the objection, as the joinder was manifestly to their advantage. By a proper pleading they might seek a judgment in this same proceeding against the defendant Beverstock, and thus avoid any further litigation growing out of the subject matter.

We see no reason why the taking of a judgment against the defendant Beverstock first should preclude the defendants from prosecuting their action to judgment against his co-defendant Brown for any amount remaining unsatisfied on the judgment obtained against Beverstock.

The terms of the stipulation clearly indicate that no election of inconsistent remedies was intended, as it is expressly provided that the entry of judgment should not operate to prevent the plaintiffs from proceeding with the trial against the defendants Brown.

It is claimed that these stipulations are not binding upon the defendant Brown because not signed by him. While it is true that the stipulation was not signed by him, it was entered in a case to which he was a party and was signed by his attorney, although he at the time was acting for the defendant Beverstock. Nevertheless the defendants Brown must be held thereby to have had notice of the execution of the stipulation and of its being filed in the ease, and all that took place with respect thereto; and having this knowledge they have estopped themselves from a defense of want of knowledge of the stipulations and their affect by assenting to the staying of the proceedings in accordance with the terms thereof. Furthermore, the defendants Brown took the benefit of the payment of the $875 made by Beverstock as a result of this stipulation. Tt would be inequitable to permit the defendants Brown to accept the benefits of this stipulation and then assert the stipulation and the judgment obtained against Beverstock in pursuance of it as a bar to the further prosecution of the action against them.

The doctrine of election as asserted and held in this case by the court below applies only to inconsistent remedies. We are unable to find that the remedies sought against these defendants are inconsistent. The plaintiffs were entitled to a judgment against the defendants Brown because of their liability upon the mortgage indebtedness, and they were likewise entitled to a judgment against the defendant Beverstock because of money paid to him by the defendants Brown on such indebtedness for the benefit of the executors. We are of the opinion that the case relied upon by the trial court in determining this question, 113 N. Y., 450, found also in 21 N. E., 172, is not applicable to this case. Our views as above enunciated seem to be entirely supported by the later New York eases: Russell v. McCall, 141 N. Y., 437, also reported in 36 N. E., 498; and In re Huffmrn, 136 App. Div. (N. Y.), 515, 520. We also think that the case of Maple v. Railroad, 40 O. S., 313, is applicable to this ease.

We find therefore that the defendants, Charles E. Brown and Julia E. Brown, should be charged with the five notes remaining unpaid at the time of the death of Joseph Gottsehalk together with interest thereon. Upon that indebtedness they are entitled to the following credits: 1st. The payment of $300 made March 15th, 1910, to Edward Beverstock, which was before the death of Joseph Gottsehalk. 2d. The amount paid to the First National Bank on December 17th, 1910, $1,419.73. 3d. $575 of the .$875 paid by Beverstock to plaintiffs on February 26th, 1912, making a total credit of $2,294.73.

We have not computed the interest items, but interest will be computed in accordance with the dates in the notes and the payments as above stated and at the rate stipulated in the notes. It is claimed by the plaintiffs that the defendants Brown are not entitled to credit for the payment made to the bank on December 17th, 1910; that the notes were not yet due and that their payment at that time operated to the disadvantage and injury of the plaintiffs. It is conceded as above noted, that the bank was a bom fide holder of these notes as collateral security. The provision of the mortgage is that the defendants, may pay $100 or any multiple thereof at any time. The effect of this provision is to enable the defendants to pay the entire obligation at any time they may desire. They therefore were entitled, without giving any reason therefor and regardless of its effect upon anyone, to pay to the rightful bom fide holder of the notes the amount of indebtedness for which they were held as collateral security, and to this extent they are entitled to credit in the accounting.

We have, disposed of the case upon a different theory from that resorted to in the judgment of the common pleas court. The facts upon which our judgment is based are shown by the undisputed evidence and insofar as the findings of fact are in conflict therewith, we disapprove of the finding.

The judgment of the court of common pleas will be modified in accordance with the above opinion and final judgment entered here in favor of the plaintiffs accordingly, together with an order of sale, and the cause will be remanded to the common pleas court to carry this judgment into effect.


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    ERROR IN DISMISSING CAUSE WITHOUT PREJUDICE.
    Circuit Court of Lucas County.
    The Lake Shore Electric Railway Company v. Sanders Sharp, Administrator.
    Decided, November, 1908.

      Motion to Direct Verdict — Dismissed Without Prejudice.

    At the conclusion of tlie plaintiff’s evidence, a motion ■ having been made to direct a verdict lor the defendant which the court has announced it will grant, it is error to permit the plaintiff to dismiss the case without prejudice.
    Marvin, J.; Winch, J., and Wildman, J., concur.
   The plaintiff below was Sanders Sharp, as administrator, and he brought his suit against the plaintiff in error for the wrongful death of his decedent. In this opinion the terms “plaintiff” and “defendant” are used, meaning the parties as they stood in the court below.

At the close of the plaintiff’s evidence the defendant moved the court to direct a verdict in its favor. After the arguments on this motion were concluded the- court announced that the motion would have to be allowed. The plaintiff thereupon asked leave to withdraw a juror and continue the case. This was refused and the plaintiff then moved that the case be dismissed without prejudice and this motion was allowed and an order made by the court dismissing the case without prejudice. - To reverse this order the present proceeding is prosecuted.

Section 5314, Revised Statutes, provides for the dismissal of actions without prejudice, and the first of said provisions is that it may be dismissed by the plaintiff, before the final submission of the ease to the jury or to the court, when the trial is by the court. This is the only provision authorizing the plaintiff to dismiss the case without prejudice, except a dismissal provided for in vacation. It is provided by the same section that the court may dismiss the ease without prejudice where the plaintiff fails to appear at the trial, or for want of necessary parties, or on the application of some of the defendants where there are others whom the plaintiff fails to prosecute with diligence, or for the disobedience by the plaintiff of an order concerning the proceeding in the action.

It is urged-here that since the court had not directed the jury that a verdict be returned for the defendant, the case comes within the first class, to-wit, one that may be dismissed by the plaintiff before the final submission of the case to the jury or court, and that the action of the court in entering the dismissal, without prejudice, was simply authorizing the plaintiff to make this dismissal, as provided by the statute. This reasoning, we think, is not sound. The case of Turner v. Pope Motor Car Company et al, 19 Cir. Dec., 181, was in some respects like the case at bar. In that case, after the evidence on the part of the plaintiff had been concluded a motion was made that a verdict be directed for the defendant. That motion was taken under consideration by the'court, and the court adjourned until the following morning. AVhen the court convened counsel for the plaintiff announced a dismissal of the case, without prejudice. The court refused to enter the dismissal and directed a verdict for the defendants, which ivas at once returned by the jury. Error was prosecuted to the refusal of the court to enter the dismissal. In the circuit court the judgment of the common pleas was affirmed, the court finding that, in substance, the case was finally submitted upon the motion to direct a verdict within the meaning of Section 5314, Revised Statutes.

The same question under a statute similar to our own was passed upon by the Supreme Court of Nebraska, in the case of Bee Building Company v. Dalton, 68 Neb., 38. See also Railroad Co. v. Dryden, 17th Kan., 228.

These cases are familiar to counsel and need not here be quoted from.

We reach the conclusion that the court erred in dismissing the case without prejudice, and we reach the further conclusion that the case was submitted to the court, for when a motion is made to direct a verdict it amounts, as has been said in other cases, to a demurrer to the evidence, and raises a question of .law for the court. The court was without 'authority to dismiss the. case without prejudice but the court was not without authority to dismiss the case upon the motion of the plaintiff. Plis motion was in effect an announcement that he did not care further to prosecute this case. True, his motion implied that he hoped to be able to prosecute a case upon the facts undertaken to be brought out in this case, but the case had reached a point where, by this motion, the court, as already said, was authorized to dismiss it upon the plaintiff’s motion, and the order should have been that the ease be dismissed and should not have included the the words “without prejudice.”

Proceeding here to modify the judgment so as to make it conform to that which the judgment below should have been the judgment is that the case in the court below be dismissed.


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    SUFFICIENCY OF ALLEGATIONS CHARGING THE RECEIVING OF STOLEN GOODS.
    Circuit Court of Lucas County.
    Harry Rosenbloom v. State of Ohio.
    Decided, November, 1908.

      Criminal Law — Receiving Stolen Goods — Intent to Defraud, — Sufficiency of Indictment — General Demurrer.

    1. In a criminal case a general demurrer under Section 7251, Revised Statutes, raises the question of whether intent has been alleged, and proof of it is necessary to make out the offense charged.
    2. In an indictment under Section 6958, Revised Statutes, for receiving stolen goods, an intent, to defraud is sufficiently alleged by the use of the words “unlawfully and fraudulently.”
    Marvin, J.; Winch, J., and Wildman, J., concur.
   The only question in this case is whether an indictment seeking to charge the offense of receiving stolen goods, under Section 6858, Revised Statutes, is sufficient, if it has all of the formal particulars properly stated, together with the following words:

“That Harry Rosenbloom, late of the county aforesaid, on the 8th day of February, 1907, at the county aforesaid, unlawfully and fraudulently did receive 80 pairs of Pingree shoes, of the value of $160 of the personal property of the Michigan Central Railroad. Company, a corporation, then lately stolen, he, the said Harry Rosenbloom then and there well knowing said personal property to have been stolen, as aforesaid, and so the jurors aforesaid, upon their oath aforesaid, do say that the said Harry Rosenbloom then and there, in manner and form aforesaid, unlawfully did steal, take and carry away the said personal property, ’ ’ etc.

The sufficiency was challenged in the court of common pleas by a demurrer, specifying not only that the facts stated in the indictment do not constitute an offense, but also that an allegation is not made that the act done was with intent to defraud.

It is conceded on the part of the plaintiff in error that such indictment is good as against a general demurrer, and this is on the authority of Whiting v. State, 48 O. S., 220, where the exact question was raised. In that ease it is said, in the third clause of the syllabus:

“It is an established rule of pleading that facts, and not conclusions of law, should be pleaded. Therefore, an indictment under Section 6858, Revised Statutes, which charges that the accused did unlawfully and fraudulently receive certain personal property — describing it and giving its value and ownership — knowing the same to have been stolen, sufficiently charges an offense under that section, without an averment as to the character of the offense he is thereby deemed to have committed. ’ ’

But, it is said, that the attention of the court was not challenged, in that case, to the failure to charge “intent” and that since Section 7251 of the Revised Statutes provides that, “The accused may demur when the facts stated in the indictment do not constitute an'offense punishable by the laws of this state, or when the intent is not alleged, and proof of the intent is necessary to make out the offense charged,” therefore the failure to charge intent is a ground of demurrer separate from the general demurrer, that the indictment does not charge facts sufficient to constitute an offense.

It must be conceded that unless this contention be sound, there is some tautology in the language of the statute, and yet we are of opinion that the entire question is raised by the general demurrer.

Where intent is an ingredient of the offense, such intent is a fact to be charged. Offenses are only charged by allegations of fact and so if intent is a necessary ingredient of the offense, it is a fact necessary to be stated in the indictment. We think, therefore, that the question was distinctly raised in the case of Whiting v. State, supra, and that under the authority of that ease, the indictment here was sufficient, and we might well rest our opinion upon this case alone.

In view, however, of the very able and carefully prepared argument on the part of the plaintiff in error, in which attention is called to other cases, we feel it proper to say something in addition to what has already been said.

Our attention is called to the ease of Drake v. State, 19 O. S., 211, in which it is said, in the opinion:

“To constitute the crime of forgery, or of uttering or publishing as true, and genuine, etc., as defined by the statute, the criminal act must be done ‘with intent to prejudice, damage or defraud some person or persons, body corporate or politic, or a military body organized under the laws of this state.’ This intent is an essential ingredient of the crime, and must therefore be stated, and charged in the body of the indictment, in a direct and positive manner.”

And the court goes on to say, in that ease it is not thus charged. It will be noticed, however, that the statute under which that prosecution was had, expressly provides that the act must be done with intent to prejudice, etc., whereas, the statute under which the indictment in the case now under consideration was framed, does not use these words. However, the fact is urged, and with good reason, that the party charged would not be guilty of a crime unless what he did was done with intent to defraud somebody, and it is urged that therefore, proof of intent is necessary to a conviction, and that such proof could only be required where the intent is one of the ingredients of the crime, necessary to be set out in the indictment. It may be questioned, though it is not here necessary to decide, whether an intent to defraud is an element which must be proved in order to secure a conviction under this section, or whether want of intent, if there was want of intent, would not be matter of defense, after'the fact of the receiving of the stolen goods, knowing them to have been stolen, had been established. But, however that may be, we think this indictment sufficiently charges a criminal intent in the use of the words "unlawfully and fraudulently.”

It is true that these words may be used in .such sense as not to imply criminal intent, but when used in the criminal law, the word "fraudulently” has been held to carry with it the intent of the party charged to have fraudulently done a particular thing.

In the ease of Bank of Montreal v. Thayer, 7 Fed. Rep., 622, 625, it is said:

"Fraudulently,” as used in an allegation that a person wrongfully, fraudulently, and falsely certified and represented certain things, "should be given the meaning which the law gives it, and which attaches to it in common usage, to-wit, a deliberately planned purpose (and intent to deceive, and thereby” be given an unlawful advantage. It necessarily includes the idea of a fraudulent intent.”

In the ease of West v. Wright, 98 Ind., 335, 339, it is said:

"An allegation in a complaint as follows, ‘That said defendant at the time of said purchase of said lands knowingly, falsely, and fraudulently represented to said plaintiff that said lands 'were clear of all incumbrances,’ is equivalent to a charge that the representations were made with intent to deceive.”

We reach the conclusion in this case that the word "fraudulently” as used in the indictment, sufficiently charged that the intent of the party accused was to defraud although the word is often used in civil proceedings, and especially in equitable proceedings, in a sense not necessarily imputing a wrongful intent.

Surely, in view of the provisions of Section 7215 and the recognized forms of indictments used in this state and the decisión of tbe case of Whiting v. State, this court would not be justified in holding that the demurrer to the indictment should have been sustained, and the judgment of the court of common pleas is therefore affirmed.


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    LIABILITY OF STREET RAILWAY COMPANY FOR. COST OF PAVING.
    Circuit Court of Summit County.
    The Northern Ohio Traction & Light Company v. William L. Stewart et al.
    Decided, October 8, 1908.

      Street Railroad Franchise — Paving of Street.

    A street railroad company operating a single track on a street of a city, when said street was paved, paid for seven feet of the pavement as required by its franchises; nine years later the company laid another track in the street, replacing the pavement in good order; thereupon the city brought an action to recover from the street railroad company the cost of paving an additional seven feet, which the company would have been required to pay for if it had been operating two tracks at the time the pavement was first laid. Held: There could be no recovery for or on behalf of the city or of abutting property owners.

      Rogers, Rowley & Rockwell, for plaintiff in error.

      Voris, Vaughan & Vaughan, C. M. Beery and N. M. Greenberger, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   This is a proceeding in error brought to set .aside the- judgment of the court of common pleas. The suit was originally-brought by William L. Stewart and the city of Akron for and on behalf of themselves and many others, the owners of real estate abutting on the north and south sides of West Market street in the city of Akron, between Canal street ,and the west line of the city. Later an amended petition was filed in ivhich Stewart was not joined, the city claiming to recover on behalf of itself and the other property owners named in the original petition. The relief sought was the recovery from the defendant of the expense which had been paid by the city and the property owners in .the paving and improvement of West Market street between the points named, to the amount of seven feet in width of such pavement. The facts relied upon were that the city paved said street with brick in 1892. All of the expense of street crossings was paid by the city and one-fiftieth of all the other part of such pavement. The balance of the expense was paid by the abutting property owners, except that at the time of such improvement the predecessors of the defendant paid the expense of paving a strip seven feet wide along the entire length of the street, the predecessors of .the defendant putting down a single track street railroad along the entire distance named and paying for the seven foot strip in accordance with the terms of the franchise under which it operated the line of street railway in Akron. In the year 1901, the defendant took up its single track before mentioned, which was laid along the middle line of the street. It removed the pavement so far ag necessary to put in -,a double track, and then put in such double track, one on each side of the middle line of the street, and repaired the street so far as the same had been taken up, putting in the pavement all along where it had been taken up.

On the part of the plaintiff it is urged that the defendant should pay for the seven foot strip; that is, for an additional seven foot strip above that which it paid at the laying of the original pavement, because it is said it -is clear that had tlife double track been laid at the time that the pavement was laid by the city, the company would have been required to pave fourteen feet instead of seven feet, that being the amount required to be paid by the company; that is seven feet for each track, and that therefore had the double track been laid at the time the city and property owners had to pay for’the pavement, the property owners and the city would have been relieved of the expense of paving for said additional seven feet.

It is alleged in the petition that the company purposely laid but one track originally, intending to lay the additional track as soon as the street should be paved and improved and paid for, thereby escaping the expense to which it would have been put had the ctouble track been laid in the first place. It is not shown by the facts that this allegation is true. Nine years elapsed between the laying- of the single track and the laying of the double track by the company. The company, by putting in the double track, was put to the expense of removing the first track, removing the pavement therefrom and putting in the pavement which had been removed. It would be a reflection upon the good sense as well as the integrity of those who put in the first track, to find that they did this for the purpose suggested of laying another track nine years later; that they would operate a street railroad with a single track where they ought to have a double one, for nine years, to relieve themselves from the expense of paving .a strip seven feet wide. The allegation is not sustained. The franchise granted to the defendant's predecessor, referred'to and made a part thereof, Section 437, subdivision 2, chapter 34, of the revised ordinances of the city of Akron, which reads, '‘Any individual or company to whom any such privilege shall bo granted, upon any street or highway (that is, any privilege to lay street railroads), shall be required, when it is deemed necessary by the board of city commissioners, to pave or repair, to macadamize or remacad,amize such street or highway, or to pave or repave, macadamize or remacadamize, the space between the rails of the tracks, turnouts and switches used by them, and one foot on the outside of such rails on both sides of said track, through any street or portion thereof through which such street railway may pass; and such paving or macadamizing so done shall be with the same bind and quality of material that shall be used by the city.” From this it is clear that the city could have required of the defendant, or its predecessor, to pay for both tracks had both tracks been laid when the pavement was put down, but it would be an exceedingly strained construction to hold that the city could require the defendant to pay back to the city what had been paid for a pre-existing pavement by it.

Our attention is called to the case of the city of Akron against this present defendant, wherein a recovery was had for the value of a part of a pavement which the city had put in prior to the laying of the second track, there having been only one track before. We do not regard that case as decisive of this. We find from the record that this court allowed judgment to stand for the value of a part of that street, a part of the distance only was allowed, and that was affirmed by the Supreme Court. What distinction there was between that part where the court allowed the judgment to stand, and that part of the street where it was not allowed to stand, we do not know. It may be that the court found that the conduct of the company was for the purpose of defrauding, or the express purpose as charged in this petition of getting the pavement laid and then thereafter laying the track, the time between the laying of the pavement and the first track, and the time when the second track was put in was about half the time'that it was in this case.

Other questions were argued in this case as to the right of the city to maintain this action and the like, but as what has already been said disposes of the case we deem it unnecessaxy to discuss the other questions. The result here is that the judgment should be reversed, and the jxxdgment that should have been entered in the coxxrt below will be here entered.


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    COMPETITION ÍN METAL CABINETS OF SIMILAR. DESIGN.
    Court of Appeals for Hamilton County.
    The Safe-Cabinet Company v. The Globe Wernicke Company.
    Decided, January 31, 1914.

      Unfair Competition in Trade — •.Infringement of Rights of a Manufacturer by Putting Out a Similar Product — •Injunction.
    The “cabinet safe” manufactured by the defendant from and after 1911 is so similar in size, shape, design and color to the “safe-cabinet” manufactured and sold by the plaintiff since 1905 as to easily confuse persons of ordinary intelligence as to the product which they are purchasing; and this fact, taken in connection with testimony to the effect that the defendant purchased one of the plaintiff’s cabinets and caused it to be dissected in its factory, whereupon orders were given to manufacture one as nearly like it as possible without infringing the patent, affords ground for a finding that the defendant has been guilty of unfair competition and a decree enjoining its continuance.

      James L. Steuart, Gideon C. Wilson and John Emory Cross, for plaintiff in error.

      Robertson & Buchwalter, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. IL, J., concur.
   The action below was brought by plaintiff in error as plaintiff against the defendant in error as defendant, claiming that defendant had wronged and was. wronging plaintiff by unfair business competition in the manufacture and sale of certain metal fireproof containers for papers, books and other articles, and in the use of the peculiar trade-name which plaintiff had originated for such manufactured articles. Plaintiff sought an injunction against the use of such trade-name and the continuance of such unfair competition, and prayed for an accounting and payment of all profits made- by reason thereof.

On the hearing by the court of common pleas a decree was entered finding in favor of the defendant below and dismissing plaintiff’s petition. To this decree and the proceedings below 'plaintiff prosecutes error in this court.

The entire record, embracing' a volume of testimony containing almost -500 pages, together with a very .large mass of exhibits consisting of newspaper and magazine advertisements, catalogues, circulars, cards, folders and numerous other forms of advertising matter, as well as the safe-cabinet manufactured by the plaintiff and the cabinet safe manufactured by the defendant, were submitted to the court.

After a careful consideration of this record and these exhibits the.court finds that the plaintiff is a corporation organized under the laws of Ohio, about January 31, 1906, having then succeeded a partnership composed of Willis V. Dick and George D. Shad, of Marietta, who traded under the firm name of the Safe-Cabinet Company, and who founded the business now owned by plaintiff, in February. 1905, and then commenced the manufacture and sale of the goods known as safe-cabinets. This safe-cabinet was a novelty, manufactured from sheet metal in such a way as to leave an air space between two thin sheets of metal iii which space was placed fireproof material in such manner as to become what is known as fireproof construction.

This partnership and its successor, the plaintiff corporation, were the pioneers in the manufacture and sale of goods of this character, and prior to their beginning in 1905 there was nothing known to the trade of the same character. The words “safe-cabinet” were applied to the article from its original construction, and have been so continued to the present time, and it has been known to the trade by such name during the entire period covered by its manufacture. ° During the early years of its manufacture, prior to 1909, the word “Dick” was used in dif ferent ways in connection with the name safe-cabinet, but tbe words “safe-cabinet” or “safe-cabinet company” appeared on all of these different products, and Prom and after tbe year 1909 the name-plate simply called it tbe safe-cabinet, putting on also the date of the patent, the name of the company and its place of manufacture.

These safe-cabinets were original^ painted several different colors, but after numerous experiments and considerable expense the standard shape, finish and size, for its product was finally adopted by plaintiff, and for several years prior to the filing of the petition, except in cases of special order, its safe-cabinet had been painted an olive green color with a decoration in imitation of paneling with gold or yellow fines. Plaintiff made large expenditures of money in advertising and creating a market for said patented novelty and its product so patented, decorated and labeled has been sold and resold under the designation of the “safe-cabinet” in domestic, interstate and foreign commerce. The public know and recognize said goods under such trade-name, and because of the merit of the article and the extensive advertising plaintiff has built up a valuable trade and good will in the manufacture and sale of said patented novelty, painted an olive green and decorated in imitation of paneling with gold or yellow fines and bearing designation of “safe-cabinet.” The special name of safe-cabinet has thus become a trade-name, and has in this manner eome’to have a special or secondary meaning implying that the article with reference to which it is used is of ¡plaintiff’s manufacture, the combination of name, color and decoration becoming of value as appurtenant to the good will of plaintiff’s business.

The defendant is an Ohio corporation which together with its predecessors has been continuously engaged in the manufacture and sale of office furniture, sectional bookcases, files and equipment, for many years, but did not manufacture an article similar to that manufactured and sold by plaintiff, prior to February, 1911. Before defendant engaged in the manufacture of said article there was no competition whatever between the' goods manufactured by the plaintiff and those of the defendant, and the same agent represented both plaintiff and defendant in many cities throughout the United States.

In February, 1911, the defendant began the manufacture and sale of a fireproof container of practically the same shape and size as that of plaintiff, and likewise painted an olive green color and decorated in imitation of paneling wth gold or yellow fines, and labeled the same “Globe Cabinet Safe.” Plaintiff contends that the use of the name cabinet safe and the decoration of its goods with an olive green color and gold or yellow fines in imitation of paneling, is a simulation by defendant of the goods of the plaintiff, and is a fraudulent attempt on the part of dedefendant to deceive and mislead the public and the customers of the plaintiff into the belief that the goods manufactured by the defendant emanated from the same source as those manufactured by the plaintiff, and that such acts amount to unfair competition in trade, the liability of deception being further enhanced by the fact that defendant also imitated the shape and most popular size of plaintiff’s goods.

Plaintiff further claims that defendant’s article is of inferior workmanship and design and insufficient as a fire resistant, and that while in outward appearance both articles are the same there is a wide difference in their respective merits, the plaintiff’s article offering a resistance to a high degree of heat which the defendant’s could not withstand.'

The defendant claims that there has been no attempt on its part to mislead or to confuse or deceive anyone, and that no fraud or unfair competition has been shown as against the defendant. The defendant denies the right of plaintiff to the use of the words- “safe-cabinet” as a trade-name, claiming that such a name is merely descriptive of the characteristics-of the article, and that no one can acquire exclusive right to such a trade-name, and therefore claims the right to use the words in the manner in which it has been using them, to-wit, ‘ ‘ cabinet safe. ’ ’

Counsel for defendant admits, however, that grammatically construed these words would appear to have the same meaning, arguing that the first word should be taken as the adjective or qualifying word and the last word as the noun; that in the name used by the plaintiff “safe-cabinet” the cabinet would be the main feature qualified by the word “safe,” while in the term used by the defendant “cabinet safe” the safe would be the main feature qualified by the Avord “'cabinet.” Tt is hardly necessary to analyze the meaning of the words as has been done by counsel for defendant, as such analysis shows no difference in their meaning. It might, however,' be noticed that their use by the plaintiff was with the hyphen between' the tAvo Avords, using therefore both words as nouns and neither as an adjective, indicating in that way possibly the name of a particular thing that combines in an equal degree the qualities of the object known as a cabinet with the object known as a safe.

The evidence shows that the words had not been used together in such a way as to become known to the trade or to indicate any particular article, prior to their use by plaintiff or its predecessor. In this view of the facts it appears to the court that the name is one which might well be adopted and used by the company which first manufactured such an article, and that its subsequent use by a' new competitor would be looked upon at least as a ground of suspicion, and taken in connection with other matters might lead to a finding of unfair competition.

It is contended also by the defendant and shown by the ’evidence that the use of olive green paint as a decoration for steel articles was a matter that had been common to the trade for many years, and defendant contends that because plaintiff and its predecessor had originally used other colors as well as that finally adopted by it as its standard that therefore there could be no objection raised by it or any claim made as to its exclusive right to use the color, which the evidence shows it has adopted and used as its standard some time before the defendant entered the field of competition. ’

It may be well said that no one can have an absolute monopoly of a particular color, but it has been shown by the evidence that prior to the commencement of the manufacture of the 4 4 Globe safe cabinet” by defendant, its standard color for file eases and other products’ had been colors in imitation of finished oak ox; mahogany wood, and for steel file cases that were not so colored it had used a maroon paint, and had been using other colors only on special orders.

These facts taken in connection with the fact that it disre- ‘ garded its previous standards of wood imitations and made olive green its standard color for its new product, with gold or yellow lines to imitate paneling, and the fact that in its catalogue of new goods it carried on the margin a.miniature safe-cabinet, or cabinet safe, printed in green ink, making its catalogue similar to that of plaintiff company, and also that it took as the size of its product the most popular size that was used by the plaintiff company, shows too many matters of similarity to be altogether accidental and not to show that it was actuated by the desire to gain the benefit of the expense and effort that had been borne by plaintiff in stimulating and creating a market for its product.

The court is compelled to reach the conclusion that the defendant has been guilty of those acts which constitute unfair business competition, especially when it is further considered, as shown by the testimony of the president of the plaintiff company, that prior to the commencement of the manufacture of its cabinet safe, a safe-cabinet manufactured by the plaintiff was purchased by the defendant and was taken to its factory and dissected by its operatives with instructions from the president of the company to manufacture an article as near like it as possible, in such a way as to. take in the file ease units made by the defendant, and not to infringe on the patent of the plaintiff company.

Such a conclusion is further- sustained by the fact that the evidence shows that agents who had been previously handling goods manufactured by both plaintiff and defendant were required by defendant to handle its goods alone, and to give up the agency for the plaintiff’s goods or to lose the exclusive agency for the defendant’s goods.

- The case of Yale & Towne Mfg. Co. v. Alder, 154 Fed. Rep., 37, is almost directly in point, the facts being so similar. The syllabus of this case is as follows:

“A manufacturer of locks who deliberately and intentionally copied a higher-priced lock made by another manufacturer in form, size, coloring, lettering and details of -finish, so that the two were substantially identical in appearance to a casual observer, and retail purchasers were likely to mistake one for the other, is chargeable with unfair competition, although the parts of the lock separately may have been open to his appropriation.”

Upon an ocular inspection by the members of the court, the similarity of the appearance of the two articles made respectively by plaintiff and defendant and shown as exhibits in court was sufficient almost of itself to convince the- court that one, was a “Chinese” copy of the'other. While if critically examined together points of difference might be discovered, it would be impossible for anyone not having first so studied them and memorized these differences, to properly describe them and identify the product of either party with that of the other party not then before him.

On such a state of facts it is clear that the- casual ordinary buyer at retail, not having both articles before him and not knowing the points of difference or, possibly, even that there are two distinct, manufacturers, but having read plaintiff’s advertisements and having decided to buy a safe-cabinet would easily be induced to buy defendant’s cabinet safe, feeling that he was securing what he had intended to purchase.

The plaintiff contending that the similarity of the two products is sufficient to confuse or deceive purchasers, defendant undertook to point out certain differences. For instance, that the plaintiff’s article had a cornice around the front and both sides at the top, while defendant’s has none at the sides because of its desire to carry out its idea of elastic furniture by adding, if occasion demands it, other cabinets at the side without leaving any space between the two. This furnishes a reason for omitting the cornice at the sides, but does not give a reason why when omitted the cornice on the sides it should be still retained on the front.

A difference in the hinges was also referred.to by one of defendant’s witnesses, but when he was asked to explain wherein the difference lay he was unable, to do so without again referring to them and then making comparison between the two articles then in court. And the court was impressed with an incident which took place during the argument, when counsel for defendant undertook to point out the difference between defendant’s article and that of plaintiff in court, and himself pointed out plaintiff ’s article as the product of defendant. If such confusion could arise with a witness and counsel, who had both prepared for trial and were clearly advised of all points of difference in- the two articles, how can it be said that no confusion or deception will arise with the ordinary casual purchasers in the market, who after all are the persons to be protected, and whose trade plaintiff is entitled to receive if he has legitimately secured it.

In the case at bar it is clear that the demand for plaintiff’s goods was created before the defendant entered the field, and being in a similar business this demand was brought to the attention of the defendant by its agents and salesmen, and it did not hesitate to at once take advantage of the opening thus created to embark in the same business that had been made so successful by the plaintiff. We have stated above how the defendant first dissected the safe-cabinet of the plaintiff and commenced the manufacture of its cabinet safe in close imitation of it. While the defendant strenuously insists that its article is superior to that of the plaintiff, the plaintiff as strongly contends that its own article is the superior. For the purposes of this case, which is the better is not material. The real question becomes, who was the pioneer in this manufacture? There is no dispute in the record but that the plaintiff had an established business before the defendant commenced, and there can be no question but that the marked similarity of defendant’s product was for the purpose of availing itself of plaintiff’s trade and securing a part of its good will, and that the conduct of the defendant comes within what is known as unfair competition.

Defendant, however, contends that it has put out no goods except with the name “Globe” upon them, that is, the name-plate carries the words “Globe Safe Cabinet.” Such use of defendant’s name is not in itself a sufficient affirmative distinction where, as here, there are sufficient points of similarity to constitute unfair competition.

In Menendez v. Holt, 128 U. S., 514, the Supreme Court says in its opinion, at page 521:

“It is no answer to their action to say that there was no invasion of that right because the name of S. O. Ryder accompanied the brand upon flour sold by appellants, instead of the name of Holt & Co. That is an aggravation and not a justification, for it is openly trading in the name of another upon the reputation acquired by the device of the true proprietor.”

See also to the same effect: Shaver v. Heller, 108 Fed. Rep., 821; Jacobs v. Beecham, 221 U. S., 263; Rushmore v. Manhattan S. & S. Wks., 163 Fed. Rep., 939.

Enterprise Mfg. Co. v. Landers, 124 Fed. Rep., 923:

“Any manufacturer has the right to copy an article made by another which is not protected by patent, but he has not the right to so imitate it in shape, design, color and number as to deceive purchasers of average intelligence and cause them to mistake his product for that of the prior manufacturer.”

28 A. & E. Enc. (2d Ed.), 410:

' ‘ An exact copy of another’s trade-mark or name or the dress of his goods is not necessary to constitute infringement or unfair competition. Similarity, not indentity, is the test. There is some little confusion in the eases as to the standard to be applied, but the general rule seems to be that infringement or unfair competition exists whenever the resemblance is so close that ordinary purchasers, buying with ordinary caution, are likely to be misled. The resemblance need not be sufficient to deceive experts or persons specifically familiar with the trademark or goods involved, nor such as would deceive persons seeing the two trade-marks or articles placed side by side. A similarity sufficient to make it likely that unwary purchasers will be deceived, has been deemed sufficient.”

38 Cyc., 779:

“No inflexible rule can be laid down as to what conduct will constitute unfair competition. Each case is in a measure a law unto itself. Unfair competition is always a question of fact. The question to be determined in every case is whether or not, as a matter of fact the name or mark used by defendant has previously come to indicate and designate plaintiff’s goods, or, to state in another way, whether defendant, as a matter of fact, is by his conduct passing off his goods as plaintiff’s goods, or his business as plaintiff’s business. The universal test question is whether the public is likely to be deceived.”

38 Cyc., 783, 784, 785:

“It is often said that a fraudulent intent on the part of defendant to pass off his goods or business as and for that of plaintiff is necessary to constitute unfair competition, and infringement" of trade-marks has been distinguished upon this ground. But the reasons for not requiring proof of a fraudulent intent in cases of infringement of trade-marks apply equally well to unfair competition cases, for the basis of the remedy is substantially the same in both cases. Unfair competition involves trading upon another’s reputation and good will, and the injury is the same regardless of the intent with which it is done. Accordingly the better view is that an actual fraudulent intent need not be shown where the necessary and probable tendency of defendant’s conduct is to deceive the public and pass off his goods or business as and for that of plaintiff, especially where only preventive relief against continuance of the wrong is sought or granted. Even if the resemblance is accidental and not intentional, plaintiff is entitled to protection against its injurious results to his trade.”

38 Cyc.,. 789-90-91:

“It is the duty of a subsequent trader coming into an established trade not to dress up his goods or market them in such a way as to cause confusion between his goods or business and that of a prior trader. Even conceding that the later trader, has an equal abstract right to use particular words, names or marks, yet if his unexplained use of them will cause confusion and deception, he must accompany such use with affirmative distinguishing features sufficient to render deception improbable. This rule applies to all classes of names, including descriptive, generic, personal and geographical names, which, although primarily publioi juris, have acquired a secondary meaning. Where a name has acquired a secondary meaning and come to indicate the source of particular articles, the mere use of such a name by another, unaccompanied by adequate distinguishing statements, in itself amounts to an artifice calculated and intended to deceive, and constitutes unfair competition.
“It is a question of fact in each case whether or not the goods or business of the subsequent trader have been so distinguished as to prevent any actual or probable confusion and deception. .All the circumstances of the particular case must be considered. It is presumed thaf the public uses its senses and takes note of differences which are thus disclosed. But on the other hand it must be remembered that similarity, not identity, is the usual recourse when one party.seeks to benefit himself by the good-name of another so-that the mere existence of differences does not necessarily show honest and sufficient differentiation. A nice discrimination is not to be expected from the ordinary purchaser. Although differences between the respective, labels and packages exist, and are readily apparent upon comparison, yet if the ordinary purchaser is liable to be deceived by the similarities which also exist, an injunction will be granted. Where the distinctive part of a name or mark is taken, minor differences afford no defense. Similarity in the main distinguishing features will usually be sufficient to constitute infringement or unfair competition.”

While the subject of trade-names, and unfair competition is not altogether new, it has not arisen a; frequently in the courts of Ohio as in those of many other states, yet in the federal courts and in England the cases are numerous and the doctrine has become well settled.

In our Supreme Court it was considered in Brill v. Singer Mfg. Co., 41 O. S., 127, where the court found the facts did'not make out a case of unfair competition. In the later case of Drake Medicine Co. v. Glessner, 68 O. S., 337,, the question is well considered, and the opinion by Davis, J., shows that the law of Ohio in regard to this subject is in accord with that of the federal courts and the other states. This case upheld the rule that if the simulation is clearly shown, positive proof of fraudulent intent is not required, but may be presumed; that- if the similarity be such that persons exercising ordinary caution are liable to be misled into purchasing one article when they intended to purchase the other an injunction will be allowed.

The ease of French Bros. Dairy Co. v. Giacin, decided by the court of this circuit, reported in 12 C.C. (N.S.). 134, affirming the lower court decision found in 8 N.P.(N.S.), 549,involves this doctrine. It was affirmed by the Supreme Court without report, 84 O. S., 483.

The following nisi prius decisions also discuss the subject: Backus Oil Co. v. Backus Oil & Car Grease Co., 5 Bull., 546; Richardson v. Westjohn, 6 Bull., 233; Cohn v. Kahn, 8 Bull., 154; Lloyd v. Merrell Chemical Co., 25 Bull., 319; Reeder v. Brodt, 6 O. D., 248; Feder v. Brundo, 8 O. D., 179; Cincinnati Vici Shoe Co. v. Cincinnati Shoe Co., 8 O. D., 579; Ironside v. Ironside Chemical Co., 14 O. D., 193.

It is not necessary to refer at length to the numerous eases sited by plaintiff and defendant. The objection made by defendant that many of plaintiff’s cases are where a registered trade-mark was being used and therefore did not apply, is not well taken, as the difference between the cases of the registered or technical trade-mark and cases merely of trade-names is in regard to the manner of proof — fraud being presumed in the first class of cases, while it must be proved in the latter class. The existence of infringement or unfair competition as dependent on the sufficiency of the resemblance between the name, ensemble and the goods of the respective parties is a question of fact to be determined upon the evidence in each particular case.

It is determined by this court that the court below committed error in finding for the defendant and. in entering a decree dismissing plaintiff’s petition.

The judgment is therefore reversed and a decree will be entered in this court granting the injunction as prayed for in plaintiff’s petition.


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    PROSECUTION FOR EXCESSIVELY PUNISHING A CHILD.
    Circuit Court of Summit County.
    Harvey Mohr v. State of Ohio.
    Decided, October 8, 1908.

      Criminal Law — Cruelly Punishing Child.

    In a prosecution under Section 6984a, Revised Statutes, against a father for cruelly and unlawfully punishing his child, it is not proper to charge the jury that the father is the judge as to the mode and severity of the punishment and can not be found guilty for error in judgment, even if the punishment was excessive, nor unless the jury should find he was prompted by malice and ill-will toward the child.
    W. R. Talbot, for plaintiff.

      H. M. Hagelbarger, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   This is an action wherein the plaintiff in error seeks to have this court set aside the judgment of the court of common pleas in affirming the judgment of a justice of the peace, where this defendant was found guilty upon a charge made under Section 6984a, of the Revised Statutes, which section reads ,as follows:

“Whoever tortures, torments, cruelly or unlawfully punishes, or willfully, and negligently deprives of necessary clothing, food, or shelter, any person, or whoever having the control of, or being the parent or guardian of any child or children under the age of sixteen years, willfully abandons such child or children, or willfully, unlawfully or negligently fails to furnish necessary and proper food, clothing or shelter for such child or children shall be fined not more than two hundred dollars nor less than ten dollars, or imprisoned for not more than six months or both.”

The charge in this case was that on the 7th of June, 1907, Mohr cruelly and unlawfully punished his little daughter. The evidence shows that he punished his daughter, who. was seven years old; on the 7th day of June, 1907; that he struck her several times — it is uncertain how many times — with a strap. He says that the strap which is attached to the bill of exceptions is the strap with which he punished her. There is testimony to the effect that it was a part of a tug of a harness, but perhaps the weight of the evidence would .bring one to the conclusion that it was this strap, which evidently has been used sometimes as a razor strap, and which he says he kept in a drawer for the purpose of using it as a razor strap, and for such other purposes as he might want to use it for. He was asked several times what those purposes were, and he said, any purpose that, he might want to . úse it for, and finally admits he used it sometimes to punish his children with. On the. 15th of June Mohr was arrested, and on that day Mr. Scuphlon, who is I believe the health officer in Cuyahoga Falls, and Mr. Weber, who is humane officer of this city, saw the girl and found that there were marks upon her person, black' and blue, as they expressed it, at that time, eight days after the punishment. And Weber and Mrs. Richards, the housekeeper of Mohr, found that on the 22d day of June, when the triál was had, the marks were still visible, but they were pretty nearly gone at that time: The child, right after the punishment, dressed herself and played around as before. She cried some at the time of the punishment. ' From the evidence we think the jury might well have found that the • punishment was cruel. But it is said that the court erred in. its, charge to the jury and erred in refusing to charge as requested, and for these errors it is said the judgment should be reversed. The court charged the jury in a most praiseworthy way, by saying that he would not take á great deal of time in charging them, but’that he would charge them, and he said:

“A parent or guardian of a child.is undoubtedly the judge as to wheii’ánd how. a child should be punished, so long ,as that punishment does not conflict with the iaw, but when it goes to such an extent that it does conflict with the law then that parent or guardian is just as guilty as though it was some one .else who was1 punishing that child: ’!

The .proposition can not. be denied that if the father went beyond the .law. he was doing, that which was unlawful, But the court then read the section of the statute which has already been read.- He read that to the jury, so that he was as definite in saying to the jury what would constitute an unlawful punishment as the statute is definite. .The language of the statute is:

“"Whoever cruelly or unlawfully publishes a child,” etc. The court then says, after reading the section: “Now as to the facts that have been brought out before you here, gentlemen, you are to decide upon them. • I have no wish to say a word concerning the evidence, and I believe that you all understand .from" wÜat I have said and what you have heard here what the law is upon this subject. .1 have prepared the two regular forms of verdict here,” etc. " ' " "

Now, he was: requested to give in charge certain: propositions, which he refused, and it is urged that it was erroneous to- -refuse these: The first is:’’

“ The father was the judge as to the mode and severity of the punishment, and for error of judgment, if "you find "theré wás error of’ judgment- in .punishing: his- minor .daughter j Edith Mohr, the defendant, can. not be found guilty,.even, though-,you should find that the punishment was excessive.” ,,

• That ought not to have been given in those wordsj no difference how excessive’you find that punishment to be, i’f the father, in his judgment, thought it was hot excessive, you, "gentlemen "of the jury, have no right to s,ay whether it is excessive. If " that had been' given' and if this father had amputated a finger of that child, cut off a hand of that child so'she should névér be able to write anything, if, in his judgment, that was" the right punishment, then in such case as that, if the father' were "prosecuted and this, charge were given and the jury had ácceptéd it as’the Taw in the case, the father would have had'to ;bé'returned not guilty."’ The proposition ’ has some merit to it;:' it is "true the father is the judge, and the court said to the jury that the father is the judge of when he shall punish and for what, and in order that the father may have the "authority that it is conceded by the law, at least, that he may. have, he must have the authority to judge, but if his judgment warrants a punishment that is shocking to every right thinking man, he is not to be excused, even though it w,as an error of judgment ón his part; that is to say, the punishment may be so excessive that even though it is an error of judgment and results from that, that it is cruel and the father is liable to punishment.

The second and third propositions are:

“Before you can find the defendant guilty under this affidavit you must find that defendant was prompted by malice and ill will toward his minor daughter, Edith Mohr, in inflicting the punishment in question.”

That is the way the second reads, and the third is practically the same. If those propositions had been given and accepted by the jury, they must have found the father not guilty, even though he had punished the child severely because of ill-will that he had to the child’s mother or sister or brother. There are men who, for the sake of punishing the mother, and having no ill-will to the child, will excessively punish the child. The fact that a parent has no ill-will to the child won’t excuse him from a cruel punishment — so cruel as to be clearly shocking to the sense of right thinking men. An authority was cited to us from the state of North Carolina, and some other authority, going to the very extreme and justifying these charges. We find that they have been criticized, and, we feel justly criticized, and though a good many things were hinted at in this record that might be calculated to induce the jury to think this father was a much more wicked man than he was, which facts were not at all established, still there was no admission of evidence which was objected to that constituted any error, and the judgment is affii’med.

It is questionable pexhaps whether it was wise to prosecute it, but we find no error which would justify a reversal.