text:
    PATENTS — SALES
    [Cuyahoga (8th) Circuit Court,
    May 15, 1911.]
    Marvin, Winch and Henry, JJ.
    H. B. Pumphrey v. C. H. Haffner, et al.
    1. Covenant of Sole Ownership of Patent Rights Rendered Effective by Repurchase of Interest Sold.
    It is immaterial if one contract to sell a one-half interest in certain dies and patent rights, covenanting that he is the sole owner of all interests therein, whereas in fact he had previously sold a one-half interest, provided that he obtains a reconveyance thereof at or about the time he makes such covenant.
    2. Patent Right Applied for Equivalent to Statement of Ownership.
    One who has applied for a patent upon an invention of which he is the owner, while his application is pending and before it is issued may declare that he is the owner of “patent rights” and sell an interest therein.
    3. Extravagant Representations as to Merits of Ice Cream Freezer.
    Representations that an ice cream freezer is the best ever; that whoever saw it would want it; that hardware dealers would take it as soon as they saw it; that his price for a half interest in the invention would be much higher to any one else than the plaintiff, but that owing to the plaintiff’s especial adaptability to exploit an ice cream freezer, he would let him in cheap, etc., made in order to induce the plaintiff to purchase an interest in the invention, and upon which he acts, are a kind of bragging and flattery, but though false, do not constitute that kind of fraud which is recognized by the law.
    4. Representations that Sales of ice Cream Freezer Hold Good Cause for Setting Aside Sale.
    Representations that an ice cream freezer is selling well; that it is giving excellent satisfaction and is doing the work intended in a perfectly satisfactory manner are material and if relied upon in purchasing an interest in the invention, and turn out false, will give ground for setting aside the sale.

      D. M. Bader, for plaintiff.

      H. A. Tilden, for defendant.
   MARVIN, J.

H. B. Pumphrey prays to have a deed of conveyance of certain real estate, made by him to Maggie A. Haffner, who is the wife of C. H. Haffner, set aside; also to have a deed of a part of the same real estate made by C. H. Haffner and Maggie A. Haffner to Frances H. Palmer set aside.

Without going into the reasons why, it is agreed that both of these deeds should be set aside, if the contract made between Pumphrey and C. H. Haffner, under which the deed to Maggie A. Haffner was made, would not support the deed last named if it had been made to C. H. Haffner instead of to Maggie A. Haffner.

The plaintiff says this contract was tainted with fraud perpetrated on him by C. TI. Haffner. ,

This contract was made May 24, 1910. If there was fraud on the part of Haffner in the transaction, it was in reference to certain representations made by him to Pumphrey in regard to certain rights in a patent on ice cream freezers. In a writing given to Pumphrey by Haffner on the day last named, Haffner declared that he was the sole owner of all interests in certain dies and patent rights in the “Reams-Haffner Instantaneous Freezer,” and one-half interest in these patent rights and dies was what he gave to Pumphrey for the real estate in question.

The evidence shows that, before the date of this contract, Haffner had sold a half interest in this same thing to a certain corporation, with which he was connected, and on the part of Pumphrey, the evidence tends to show that this title was outstanding at the date of the contract with Pumphrey. On the part of Haffner, it was asked that the case be delayed for evidence which it was said could and would be produced, that the interest which this corporation had received from Haffner had been transferred back to him before May 24, 1910. It was conceded by the plaintiff that such reconveyance was made at some time, either before or after May 24, 1910, and holding that it would in no wise matter to Pumphrey whether such reconveyance was made before or after the date named, we did not wait for the evidence, but hold that Pumphrey would not be entitled to relief simply because of this transaction with the corporation, so long as Haffner got the title in, and so made good the title in Pumphrey.

As a matter of fact, no letters patent have ever been issued on the device spoken of, but application for such patent had been made, and this application was pending in the patent office at the time of the contract, and such application was owned by Haffner, so that he had certain rights in the patent, which may be called “patent rights” even without letters patent having been issued.

The evidence is not clear as to whether Pumphrey knew exactly the situation of the patent in the patent office or not, when the contract was made. If he did not, he learned shortly after the date of the contract, and did not seek then to avoid the contract on that account. Many representations are charged by Pumphrey to have been made by Haffner, which, whether strictly true or not, would not avoid the contract. Haffner said, in effect, that the freezer was the best ever, that whoever saw it would want it, that hardware dealers would take it as soon as they saw it, and that to any other man than Pumphrey his price for the half interest would be $10,000 but that owing to his especial adaptability to exploit an ice cream freezer, he would let him in cheap, etc.

This kind of bragging and flattery does not constitute the kind of fraud recognized by the law. These representations only purported to be Haffner’s opinions as to the great value of the invention, and very likely may have been entertained by him. Many an enthusiastic inventor has entertained such opinions relative to his invention, only to have them shattered by the indifference with which his device was received by the public, or by its utter rejection.

But the evidence does show that Haffner made statements to Pumphrey which the existing facts did not warrant, which were material and were relied upon by Pumphrey. He told him the machines were selling well; that they were giving excellent satisfaction, and were doing the work intended in a perfectly satisfactory manner.

The fact was that the machines sold up to that time, as well as since, were wholly unsatisfactory, and had faded to show that, there was any value in the patent, either as it then was, inchoate, or as it might become, if letters were issued. Haffner substantially admits that the machines had not done good work, but says it was because of faulty construction. Possibly the whole difficulty was on account of faulty construction, but the difficulty is that Haffner represented to Pumphrey that the machine already sold demonstrated the value of the invention, and on this Pumphrey relied. Haffner so far overstated the fact as to constitute a fraud, by reason of which the plaintiff is entitled to a decree setting aside the deeds, as prayed for, and such decree will be entered.

Winch and Henry, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    CRIMINAL LAW — WEIGHTS AND MEASURES
    [Cuyahoga (8th) Circuit Court,
    June 2, 1911.]
    Marvin, Winch and Henry, JJ.
    W. C. Gates v. Cleveland (City).
    1. Police Court Takes Judicial Notices of Ordinances.
    The police court of a municipal corporation may take judicial notice of its ordinances, but the common pleas and circuit court may not do so.
    2. Reviewing Court Assumes Validity of Ordinance not Appearing In Record.
    Upon conviction in a police court for violation of a municipal ordinance of which that court took judicial notice, the bill of exceptions failing to show the terms of the ordinance, the higher courts will assume the existence of a valid ordinance authorizing the conviction, if the offense charged in the affidavit is one as to which the municipality has power to legislate.
    3. Ordinance against Exposing for Sale Turnips in Receptacle not Tested and Sealed by City Sealer, Invalid.
    Municipal corporations are not vested with power to make it an offense “to expose for sale turnips in a receptacle not tested, marked and sealed by the city sealer,” and a conviction by a police court on such a charge will be set aside.

      E. J. Pinney and G. W. Rosenberg, for plaintiff in error.

      N. D. Baker, for defendant in error.
   MARVIN, J.

An affidavit was filed in tbe police court of the city of Cleveland, charging that in the city of Cleveland, on January 3, 1911, W. C. Gates “exposed for sale turnips in a receptacle not tested, marked and sealed by the city sealer, contrary to an ordinance of said city.” Thereupon Gates was arrested, tried and convicted. On error prosecuted by him in the court of common pleas, this conviction was affirmed. We are asked to reverse this affirmance and the original judgment of conviction. The ground of reversal urged is that the ordinance under which the conviction was had is invalid.

This court, as we have held in several cases, can not take judicial notice of municipal ordinances, hence, since the bill of exceptions does not contain the ordinance, we can not know how it reads; and this was true also of the court of common pleas. If it be said that, since the police court takes judicial notice of ordinances, there would, of course, be no question for its introduction as evidence on a trial in that court, and hence it could not properly be contained in the bill of exceptions taken from the court.

We have pointed out in other cases that the police court could have made a copy of the ordinance a part of the bill, certifying that the prosecution was had under such ordinance. By this means the reviewing court has the ordinance before it for consideration.

However, the defendant in error, the city, loses nothing by the absence of the ordinance, because, as we have held in other eases, we must presume, in the absence of the ordinance, that the police court did not err in-the application of it, and that the ordinance is valid, unless the city was without authority to pass a valid ordinance which would make it an offense to do that which the affidavit here charges Gates with doing.

So we have directly presented the question: Has a municipal authority under the statutes of the state to make it an offense to “expose for sale turnips in a receptacle not tested, marked and sealed by the city sealer?”

The claim on the part of the city is that it has such authority under Sec. 3651 G. C. which is a section in Chap. 7, Div. 2, Tit. 12, on municipal corporations. This entire chapter is on the enumeration of powers. This section authorizes municipal corporations, by ordinances, “to regulate the weighing and measuring of hay, wood, and coal and other articles exposed for sale, and to provide for the seizures, forfeiture and destruction of weights and measures, implements and appliances for measuring and weighing, which are imperfect, or liable to indicate false or inadequate weight or measure, ’ ’ etc.

To us this statute falls far short of authorizing the municipality to make it an offense to “expose for sale” articles that are not in any measuring receptacle or on any weighing device.

If the city could, by ordinance, make it a punishable offense to do what Gates is charged with doing, then if he brought beans in an ordinary barrel, took them to the market house, and there exposed them for sale in such quantities as purchasers might desire to buy, having at hand a measure in exact conformity with the standard fixed by law, and which measure had been properly tested, marked and sealed by the city sealer, in which he properly measured every quantity sold, still he would have committed exactly the offense which Gates is charged with.

Every word in this affidavit may be true, and yet, it may be that Gates had his turnips in his wagon box, or in barrels, or in bags, not using any of them as means of measuring them, but only as a convenient way of bringing them to the city, or to the market house, or about the city, as a huckster, from house to house, having and using at every sale the properly tested and sealed measure.

It is possible that if the charge was that he had exposed these turnips for sale in a receptacle purporting to be, or used by him as a measure, for such turnips, we might reach the conclusion that the city could, by ordinance, make that an offense, under the authority of the statute; but we are clearly of the opinion that the legislature of the state has not conferred upon the city the authority to make that an offense which is charged in this affidavit against Gates.

It follows that the judgment of both the court of common pleas and of the police court must be reversed.

Winch and Henry, JJ., concur.


text:
    DAMAGES — SPECIFIC! PERFORMANCE
    [Cuyahoga (8th) Circuit Court,
    June 2, 1911.]
    Marvin, Winch and Henry, JJ.
    Elita E. Peck v. Elizabeth D. Osborn.
    Dismissal of Petition for Specific Performance not Bar to Action for Damages.
    A judgment of dismissal of a petition for the specific performance of a contract for the sale of lands is no bar to an action for damages for failure to perform said contract.
    Error.

      Parsons <& Fitzgerald, for plaintiff in error.

      Ong, Thayer & Mansfield, for defendant in error.
   MARVIN, J.

Elita E. Peck was plaintiff below, and sued Elizabeth D. Osborn for damages for failure to perform a contract for the sale of certain real estate. The defendant set up that the same plaintiff had sued the same defendant in the same court, praying for specific performance of this same contract and that the court had held against her, refusing to decree specific performance, and dismissing her petition. On demurrer in the present case, the court sustained said defense and dismissed the petition, entering judgment for the defendant.

The only question before us is as to whether or not the plaintiff here is barred by the adjudication in the former case.

Our attention is called to many cases, by counsel on both sides of this case, the contention-of the defendant in error being that the rights of both parties, in all matters growing out of this contract, were either determined or might have been determined, in the former action. In support of this, among other authorities cited, is the case of Strangward v. American Brass Bedstead Co., 82 Ohio St. 121 [91 N. E. 988], the second paragraph of the syllabus of which reads:

“When a matter has been finally determined in an action between the same parties by a competent tribunal, the judgment is conclusive, not only as to what was determined, but also as to every other question which might properly have been litigated, in the case. ’ ’

Also Grant v. Ramsey, 7 Ohio St. 157, in which it is held that where a question of fact has once been tried and adjudicated by a court of competent jurisdiction, it can not be reopened in a subsequent suit between the same parties. They are concluded by the former judgment.

It can not be claimed, at least it ought not to be claimed here, that all the questions which may arise in this case bearing on the plaintiff’s right to damages, were necessarily disposed of in the former case, because in that case the court may have adjudicated as it did, because it found, in the exercise of its discretion, that it would be inequitable to decree specific performance and, so that relief was refused, and the plaintiff left to her remedy at law, as in many of the cases it is said.

It can not well be claimed either, that as the pleadings stood in that case, the right of the plaintiff to damages could have been tried. The pleadings called for the exercise of the equitable jurisdiction of the court only. Because of this, the case was appealable, and was appealed to this court, and it was in this court that the final judgment was made of dismissal of the plaintiff’s petition. Could this court have directed or allowed pleadings to be amended so as to make a case for damages, and then proceed on this appeal to try the question of damages?

We regard the case of Porter v. Wagner, 36 Ohio St. 471, as decisive of this case. The first paragraph of the syllabus in that ease reads:

“A judgment of dismissal of a petition for the specific performance of an agreement, and of a counter-claim asking a rescission of the same, is no bar to an action for the recovery of money paid on the agreement, although the cause of action accrued before the rendition of the judgment. ’ ’

We reach the conclusion, therefore, that the judgment of-the common pleas court must be reversed, and the cause remanded.

Winch and Henry, JJ., concur.


text:
    STREET RAILWAYS
    [Cuyahoga (8th) Circuit Court,
    June 2, 1911.]
    Marvin, Winch and Henry, JJ.
    Rocky River (Vil.) v. Lake Shore Elec. Ry.
    Electric Railways Crossings Act Constitutional.
    Section 9118 G. C., which provides that the court of common pleas shall have jurisdiction to fix the manner and mode of crossing streets in a municipality by electric street railroads and the compensation, if any, to be paid therefor, is constitutional.
    Error.

      D. F. Miller, for plaintiff in error.

      W. B. & H. H. Johnson, for defendant in error.
   MARVIN, J.

A question in this case is made by the defendant in error, that by reason of the entry made in the court below, the case is not reviewable on error. The language of the entry is as follows :

“By consent of the parties herein, it is ordered, adjudged and decreed that the certain manner and mode of effecting the crossings of said Blount street and said Wooster road in the vilage of Rocky River, with the tracks of said defendant herein as indicated in a certain map or plat attached to the amended answer of defendant herein and marked ‘Exhibit A’ thereto, is a proper and reasonable manner of effecting said crossings, and it is further ordered, adjudged and decreed that said plaintiff shall lay or cause to be laid,” etc.

There is a peculiarity about the record in this ease, to which attention was not called at the hearing, which is, that, though a motion for new trial was filed by the village of Rocky River on November 28, 1910, it was never disposed of. The petition in error was filed in this court on March 23, 1911. Thereafter, on April 6, 1911, leave was given in the court of common pleas to the village to file an amended answer of November 25, 1910, -and on the same day the motion of the village for a new trial was withdrawn. These proceedings of April 6, 1911, appear by an additional transcript filed here, or at least found in the file wrapper here, but without any mark of filing upon it.

As we view the case, however, it is not necessary to say what effect the entering of judgment by consent of the defendant below or the withdrawal of the motion for new trial, or the fact that such motion was not passed upon by the court before proceedings in error were instituted, would have, because we find no error in the case which would justify its reversal in any event.

The action below, brought by the railroad company under Sec. 9118 G. C. (101 O. L. 375), was that the court of common pleas might determine the mode and manner of crossing the streets named, in the village, with the tracks of the railroad, and the compensation to be paid therefor. The proceedings were in exact conformity with the provisions of the statutes, and the only claim of error is that the statute is unconstitutional. There is nothing said in the statute as to a jury to assess the damages, the language being:

“The court of common pleas, thereupon, shall have jurisdiction of the parties and of the subject-matter of the petition, and may proceed to examine the matter offered by the evidence, by reference to a master commissioner, or otherwise, and upon the final hearing of said cause, the court shall enter its decree fixing the manner and mode of such crossing and the compensation, if any, to be paid therefor.”

Whether, under this provision, the parties would have the right to have the damages assessed by a jury, we do not need to determine here. For if this can not be done under the statute, still the statute does not come under Article I, Section 19, of the Constitution, which provides that where private property is taken for public use, damages shall be assessed by a jury. The streets in which the company seeks to acquire rights in this proceeding are not private property, but have already become public property by being streets of a municipality, and what is sought is to subject this public property to an additional public use. The case of Zanesville v. Zanesville Tel. & Tel. Co., 64 O. St. 67 [59 N. B. 781; 83 Am. St. 725; 52 L. R. A. 150], seems directly in point. We reach the conclusion that the judgment below should be affirmed.

Winch and Henry, JJ., concur.


text:
    ATTORNEY AND CLIENT
    [Cuyahoga (8th) Circuit Court,
    June 2, 1911.]
    Marvin, Winch and Henry, JJ.
    Charlotte M. Phillips v. Travelers Insurance Co., et al.
    Attorney’s Fees Allowed Only for Services In Case In Which Fund Recovered.
    Attorneys fees for services rendered in one case, may not he ordered paid out of funds recovered in another case, or for any services rendered, except in the case in which the fund was recovered.
    Error.

      J. J. Sullivan, for plaintiff.

      Hoyt, Dustin, Kelley, McKeehan & Andrews, Carr, Stearns & Chamberlain, E. J. Pinney and White & Crosser, for defendants.
   MARVIN, J.

The question involved in this case arises on an amended answer and cross-petition filed here by W. B. Neff and C. W. Dille, and a demurrer filed thereto.

We fail to see how the facts therein stated entitle these parties to a lien upon the money now in the hands of the court or a decree declaring an equitable assignment of any part of the funds. We find no case in Ohio directly in point.

In Diehl v. Friester, 37 Ohio St. 473, 477, the matter is discussed and it would appear that cases may arise and do arise where the court orders payment of fees to attorneys out of funds under its control, but in no ease, so far as we know, has it been held that the court may order fees to be paid out of funds .recovered in one case, for services rendered in another ease, or for any services rendered except in the case in which the money was recovered.

There is nothing set up in the pleading of these defendants that seems to require any equitable interference; there seems to be no reason why these parties should not be put to their remedy at law, allowing Mrs. Phillips to have the verdict of a jury as to what amount she owes them, and from their pleadings it would appear that she clearly owes them something, and from aught that appears, she is able to pay whatever may be adjudged against her in an action brought for such fees.

The discussion of the question of the liens of attorneys found in Chap. 5 Jones Liens is instructive, and seems directly against the claim of these defendants.

See also DeWinter v. Thomas, 34 D. C. App. [27 L. R. A. (N. S.), 634], and notes of cases there cited.

Demurrer sustained.

Winch and Henry, JJ., concur.


text:
    EEEOE
    [Cuyahoga (8th) Circuit Court,
    November 13, 1911.]
    Marvin, Winch and Henry, JJ.
    William Fountain v. J. T. Wanelink & Sons Piano Co.
    Reversal of Order of J. P. Refusing Motion to Correct Judgment Erroneous.
    It is error for the common pleas court to reverse on error proceedings from a justice of the peace, the order of the justice overruling a motion to corrct his record so as to show the actual date on which he entered judgment in the case, there being no bill of exceptions from the justice showing all the evidence given and offered on the hearing of said motion before him and no provision of law for the perfecting of a bill of exceptions in such matters.
    Error.

      Charles B. Bummers, for plaintiff in error.

      Parsons & Fitzgerald, for defendant in error.
   MARVIN, J.

An action was brought before a justice of the peace by the plaintiff in error against the defendant in error. The result of the trial of such action was a judgment in favor of the plaintiff. That judgment was entered on the docket of the justice under date of July 6, 1909. On August 5, 1909, a motion was filed by the defendant before said justice in these words, “The defendant moves the court for an order in the above entitled case to correct the record so as to show the actual date on which judgment was entered in said case, to wit, on a day subsequent to July 6, 1909;” and on the same day this motion was overruled. To the order of the justice overruling this motion, error was prosecuted in the court of common pleas, the result of which was that the last named court reversed the order of the justice in overruling said motion, and it is to reverse this judgment of reversal that the present proceeding is prosecuted.

The situation is somewhat peculiar. There is no suggestion in the motion made before the justice of any particular day or definite date on which this judgment, which was entered as of July 6th, should have been entered, but only that such should be entered on a date subsequent to July 6th. Unless the court of common pleas had evidence properly before it to show that the justice should have entered this judgment at a date subsequent to that on which his records show that he did enter it, there was error on the part of the court of common pleas in reversing this judgment. We hold there was no such evidence.

There appeared among the papers in the case certain affidavits in reference to the entry of this judgment. It is probable, though perhaps it is not at all certain from anything that appears, that these affidavits were used on the hearing of the motion before that justice. There is no mark of their being filed with the justice; but treating them here as though they were on file with the justice, and that they properly came into the court of common pleas as a part of the original papers in the case, they still did not furnish such evidence as authorized the common pleas court to reverse the judgment below, and this for the reason that whatever is contained in those affidavits, even though it was properly before the common pleas court for consideration, may have been for all that appears, but a part of the evidence on which the justice acted. There is nothing in his transcript to show upon what evidence he acted. The court of common pleas was not authorized to reverse upon the facts, without all the evidence upon which the justice acted being brought before the common pléas court; and, as already said, there is nothing in the record to show that this was done.

But it is said that there is no provision of statute for bringing up by bill of exceptions, the evidence upon which a justice of the peace acts, in a matter of this kind. This difficulty is recognized in the ease of Baer, Harkeimer & Co. v. Otto, 34 Ohio St. 31. On page 15, it is said in the opinion in this case:

“In order to settle the practice in such cases, we now decide that there is no provisions in such cases made by legislation, as it now stands, for preserving the evidence offered on such motion, or for reviewing the decision of the justice upon the grounds that such order either in granting or refusing the motion is contrary to the evidence.”

The matter under consideration was a motion to discharge an attachment by the justice of the peace. The difficulty, however, and injustice, if it is an injustice or failure of the statute to work out complete justice, seems to exist in such a case as we have before us as existed in the ease under consideration by the Supreme Court when the language quoted was used.

To relieve from the difficulty presented by the decision in Baer, Harkeimer & Co. v. Otto, supra, the general assembly enacted Sec. 6524 E. S. now appearing as Sec. 10299 G. C. This section, however, applies only to orders discharging or refusing to discharge attachments. This would seem to leave the other matters in which error is prosecuted to the court of common pleas in the situation that the matter of attachment was in at the time of the decision of Baer, Harkeimer & Co. v. Otto, supra. The claim of the defendant in error here is that no bill was before the court of common pleas on the hearing of this case in that court, and so, whether the evidence could or could not have been before it by bill of exceptions, it was not before it at all. If it could have been brought before it by bill, that should have been done. If it could not, the party excepting was in the same unfortunate situation as the losing party in the case of Baer, Harkeimer & Co. v. Otto, supra.

In either event, the court erred in reversing the judgment of the justice, and the judgment of the common pleas court is here reversed, and the judgment of the justice affirmed.

Winch and Henry, JJ., concur.


text:
    ARBITRATION AND AWARD
    [Cuyahoga (8th) Circuit Court,
    November 27, 1911.]
    Marvin, Winch and Henry, JJ.
    B. W. Ernst v. William McDowell et al.
    1. Declaration that Party Will not Stand.by Award does not Amount to Revocation.
    The mere declaration of a party to an arbitration agreement, communicated to one or more of the arbitrators, that he will not stand by any decision they may make, is not alone sufficient to revoke the agreement to arbitrate.
    2. Parol Award Sufficient, When.
    If the arbitration submission does not expressly direct that the award be in writing, an oral award is sufficient, there being no statute requiring a written award.
    3. Creditor of Party not Disqualified to Act as Arbitrator.
    The mere fact that one of the arbitrators named in an arbitration agreement is a creditor of one of the parties to it, is not sufficient to disqualify the arbitrator from serving as such and does not, of itself, require that the award made be set aside.

      Ford, Snyder & Tilden, for plaintiff.

      Herrick & Hopkins and D. C. Parker, for defendant.
   MARVIN, J.

The parties to this action, Ernst and McDowell, entered into a written agreement on the 6th day of April, 1909, which agreement reads as follows:

“Cleveland, 0., April 6th, 1909-
“We, William McDowell and B, W. Ernst, both jointly and separately hereby agree that in view of a misunderstanding and disagreement in regard to a certain contract for work done at Upper Sandusky, said contract for work having been done by B. W. Ernst, who did not complete the same, William McDowell doing the unfinished portion of the work for B. W. Ernst and completing said work in accordance with the plans and specifications of the engineer in charge representing the village of Upper Sandusky for whom the work was being done.
“Now there being a misunderstanding and disagreement in regard to the amount claimed by Mr. McDowell as due him for the completion of said work, we hereby agree to leave this disputed amount to the following named gentlemen, Mr. E. W. Sloan, A. F. Helm and H. C. Bradley, as arbitrators and also agree to abide by the decision rendered in regard to a settlement of all the questions in dispute. This finding of the arbiters to be final and no further action to be taken by either of us pertaining to this question in dispute.
“Witness our hands .and signature this 6th day of April, 1909.
“Witness: (Signed) B. W. Ernst,
“E. W. Sloan, (Signed) Wm. McDowell.
“A. F. Helm,
“H. C. Bradley.”

On the same day the three men named as arbitrators met ' and. agreed upon their award,' but did not then reduce such award to writing. It will be noticed that the contract of submission does not require that the award be made in writing.

On the day the award was agreed upon, the defendant, Wm. McDowell, was apprised of what it was by one of the arbitrators. He was dissatisfied with the award, and either that evening or the next day gave notice in writing to two of said arbitrators, but not to the defendant, that he would not stand by any decision made by the arbitrators, giving as a reason that one of the arbitrators was an intimate friend of the plaintiff, and that he believed such arbitrator to be financially interested in'the matter before him.

The arbitrators, however, reduced their award to writing, after receiving such notice, and furnished to each of the parties a copy of such writing, which reads as follows:

“April 7, 1909.
“Messrs. B. W. Ernst and Wm. McDowell,
“ Gentlemen: Your, committee, appointed by you and mutually agreed upon to arbitrate the disputes and determine the compensation to be received by each in the sewer contract of Upper Sandusky, Ohio, which was started by Mr. B. W. Ernst and completed by Mr. W. McDowell, decides as follows:
‘! Mr. B. W. Ernst is to receive all the money now left on the work and now on deposit at the First National Bank of Upper Sandusky, approximately twenty-two hundred and five dollars ($2,205) as his share of the proceeds. The same to be paid within ten days.
“Mr. Wm. McDowell is to complete any work now unfinished upon the contract, within the specified time allowed, and is to receive the one thousand dollars ($1,000) now held by the village of Upper Sandusky as guarantee for the completion of the contract, in accordance with the specifications, as his share of the proceeds.
“Your committee has carefully considered the evidence presented and it is their unanimous opinion that this decision does justice to both parties.
“Respectfully submitted,
“A. F. Helm,
“E. W. Sloan,
“H. C. Bradley. ’ ’

The defendant McDowell refuses to abide by said award, and has withdrawn from the bank where the money was on deposit, a large part thereof.

The present suit, under the amended petition, is to recover judgment against McDowell for a fixed amount of money claimed to be due under the award.

The original petition prayed for an injunction against the bank, to restrain it from paying any of the awarded money to McDowell, and for an order that it pay the same to the plaintiff. By the amended petition, however, it is shown that the bank has paid to the plaintiff all the money remaining in its hands, to wit, $721.62; and so, as already said, the only relief now prayed, on the part of the plaintiff, is a judgment for money only.

The answer to this petition, however, filed by McDowell, raises the issues hereinafter discussed, and prays to have the contract of submission and the award set aside, and that the money paid by the bank to the plaintiff be recovered by McDowell.

The defendant McDowell says that he ought not to be bound by this award, because he says that before any award was made he repudiated the contract of arbitration, and so notified two of the arbitrators, Mr. Bradley and Mr. Helm. He did not notify Mr. Sloan, and as has already been said, he did not at that time notify Mr. Ernst.

That the award had been made, and that Mr. McDowell had been told what it was before he undertook to revoke the contract, we think is clear from the testimony of Mr. Helm, who says that the decision of -the arbitrators was made on the same day that the hearing was had; that they never got together again about it; that he told Mr. McDowell what the decision was the day of the hearing, after the arbitrators had agreed, and before Mr. McDowell gave him any notice that he would not abide by the result. Later, that same evening, McDowell told him by ’phone that he had heard that Sloan was an intimate friend of Ernst and was perhaps financially interested in the result, and the next day Helm got a letter from McDowell to the same effect.

Mr. Bradley also says that the award was agreed upon on the day of the hearing, which was at Mr. Bradley’s office, before the arbitrators separated.

Mr. Helm says he told McDowell the exact terms of the award and what each party was to get, and on that same evening, and in that same interview before McDowell gave any notice either by ’phone or letter.

Though there may be doubt as to the exact contents of the written notice sent by McDowell to Bradley and Helm, we have what Willis McDowell, a son of the defendant, says is, if not an exact copy, a substantial copy of the notice. This notice first states that defendant has learned that Sloan is an intimate friend of Ernst, and that, to quote, “I also think he is financially interested. I will not stand by any decision made under these circumstances.”

This language is sufficiently explicit to show that McDowell did not intend to abide by any award, but it may be doubted whether it amounts to a revocation of the contract pf submission even if given before the award was made.

In Brown v. Welker, 41 Tenn. 197, the syllabus reads:

“After a question is submitted to the decision of arbitrators, by agreement, neither the power nor the duty of the arbitrators, to make an award can, in any way, be affected by the declaration of one of the parties that he would not abide by his agreement. Such declarations are simply nugatory, unless the party revokes the authority conferred on the arbitrators to act in the premises.”

In this case the evidence showed that Brown, one of the parties to the contract of arbitration, said to Kincaid, one of the arbitrators, when on the way to the place of meeting for the arbitration, that he would not stand for it. Commenting on this, the court, in its opinion, page 200, uses this language:

‘ ‘ The error of the charge is in the assumption that the mere expression of a determination on the part of Brown not to stand to the agreement, put an end to the contract or was equivalent to a revocation of the authority of the arbitrators. Such was not the legal effect; he might have revoked the authority before it was executed by the arbitrators but if this were not done, neither the power nor authority and duty of the arbitrators to make an award could be effected in any way by the declaration of Brown that he would not abide by his agreement. ’ ’

But we are of opinion that, whatever its effect might have been, if given in time it came too late to be effective here.

When McDowell gave his notice that he would not stand by any decision made, the arbitrators had already made their decision, and that decision was the ‘ ‘ award. ’ ’

Anderson’s Law Dictionary defines an award in matters of arbitration in these words: “An award is the judgment of the arbitrator upon the matters submitted. ’ ’

Bouvier defines it as “the judgment or decision of arbitrators or referees on a matter submitted to them.”

2 Am. & Eng. Ene., 2 ed., 722: It is said in the text: “If the submission does not expressly direct or the law require the award to be in writing, an oral award is sufficient.” This is supported by numerous cases cited in the foot-notes.

In 1889 it was enacted by the British Parliament that, unless a contrary intention is expressed in the submission, the arbitrators shall make their award in writing.

Commenting on this, it is said in Russel, Arbitration and Award, 9 ed., 186:

“Formerly a parol award might have valid where the submission did not expresly provide that the award should be in writing, but since the arbitration act, a parol award will not be good unless,” etc.

It is said in Moore, Arbitration and Award, 1872 ed., 256:

“In the absence of statutory restrictions, or of stipulations in the submission, and except where the right to be disposed of is, by its own nature, capable of being disposed of only by a sealed instrument, a verbal award will be good.”

Having then reached the conclusion that McDowell never revoked the contract of submission, we come next to a consideration of the question of whether any arbitrator was disqualified. The claim on the part of the defendant is that one of the arbitrators was not qualified to act in that capacity.

The arbitrators in this case were not chosen in the usual way, but were all named by Ernst, and this was done at the suggestion of McDowell. The first man named by him was Sloan. This name he gave to McDowell several days before the written agreement was executed, which, as already said, was on the day of the hearing and decision by the arbitrators.

McDowell says in his testimony that he said to Ernst: “I will leave it to any three disinterested men that you pick out— I will let you pick them.”

Ernst did pick the three, who acted. McDowell after having several days ’ opportunity to learn as to the fitness of Sloan, at any rate, if not so long as to the others, voluntarily signed the contract of * * * submission. He testified that when the meeting took place with the arbitrators, “I asked them if any of them was interested or knew anything in regard to the case, and all that, and they all said they wasn’t first one and then the other.”

Of course, McDowell should be held to this contract unless he was deceived or defrauded into executing it.

The facts as to the relations between Ernst and Sloan are that they were on friendly terms socially, and that Sloan had signed bonds for Ernst in one, probably two, instances in connection with his getting contracts for work for city improvements. These bonds, however, had been taken care of long before this arbitration took place. At the time of the arbitration, however, Sloan held the note of Ernst for $1,200, which arosé in this way: Ernst was bidding for jobs to be done for the city of Cleveland in the spring of 1909. He was obliged to accompany each bid with a bond or deposit of money, conditioned that if the work was awarded to him, he would enter into the contract for such work, giving proper bond for its faithful performance.

Sloan had a credit of $1,200 given to Ernst at the First National Bank of Cleveland, that amount being charged to Sloan’s account, and he taking Ernst’s note therefor. None of the money was taken from the bank by Ernst, save for deposit with the city when he bid for work. The note given Sloan was not dne at the time of this award.. If was paid when it became due, and that without any avails from this award.

Ernst deposited at his own suggestion with Sloan two policies of insurance on his life, one for $1,000 in the John Hancock Company, and one for $2,000 in the Massachusetts Mutual Life. Though the deposit of these policies may,.not have been in law a security, these parties probably supposed they were. Under these circumstances, can it be said that a fraud was perpetrated on McDowell, or that Sloan was not a disinterested person in the sense in which an arbitrator is required to be disinterested ?

Authorities are numerous, on the question of disqualification of arbitrators on account of interest in the matter submitted, or of special interest in one of the parties.

In 5 Am. & Eng. Enc. of Law and Practice, pp. 83 and 84, authorities are collected, both English and American, and the result is summed up in the test:

“To constitute grounds for setting aside the award, the bias must have been such as to furnish reasonable ground for believing that the arbitrator was improperly influenced.
“If the interest of the arbitrator was too remote and contingent to induce any reasonable'suspieion that it could'have influenced his decision, the award .will not be set aside.”

In Russel, Arbitration and Award, 9th Ed., 93, it is said:

“If there is an engagement entered into between the arbitrator and one of the parties, unknown to the other party, which gives the arbitrator a direct pecuniary interest in deciding against the party who was ignorant of the engagement, the court will not enforce a submission to arbitration. The mere fact of owing a debt to or being a creditor of one of the parties is not such an interest as renders a person incompetent for the office.”

So in Morse, Arbitration and Award, 1872 Ed. 100, it is said:

“A debtor or creditor of one of the parties to the submission is said not to be therefor necessarily incompetent to act as an arbitrator. It should be shown further that the debt is considerable, or that it is unsecured or that the debtor is in such circumstances that the decision of this case may appreciably affect his ability to pay the debt.”

In support of the text last above quoted from Morse, and the preceding quotation from Russel, the case of Morgan v. Morgan, 1 Dowl, 611, is cited. In this case it appeared that an arbitrator was indebted to one of the parties. In commenting upon this, the court uses this language:

“No case has gone to the length of saying that an award can be set aside because the arbitrator was indebted to one of the parties.”

To the same effect is the case of Wallis v. Carpenter, 95 Mass. (13 Allen) 19. In this case one of the arbitrators was in debt to one of the parties. This was established by the evidence, and yet the court say, on page 24:

“There is no established fact which authorizes the suggestion that the existence of the debt creates partiality.”

Taking into account the facts in this case, that the money for which Sloan held the note of Ernst was for money in the bank, which it was understood between them would be checked out only to deposit with the city from time to time, when bids were rejected, or in case bids were accepted, to be returned as soon as contracts were entered into, and that this arrangement was strictly carried out; that Sloan held the two insurance policies, which the parties supposed constituted security, and that no effort to conceal any fact from McDowell as to the relation of the two men, Sloan and Ernst; that Ernst told McDowell several days before the submission that he had selected Sloan; that McDowell entered into the written contract for submission of the controversy to these three men by name, we fail to find that any fraud was perpetrated on the defendant, which would justify the setting aside of the contract, or that either arbitrator had such interest in the result of the issue or any such interest in the plaintiff, as would justify setting it aside; and so the prayer of the defendant McDowell, that such contract and the award thereunder be set aside, is denied, and the plaintiff is given judgment for the amount fixed by the award, with interest, deducting therefrom the amount paid-to him by the First National Bank of Upper Sandusky, as hereinbefore found, as of the date when such payment was made.

Winch and Henry, JJ., concur.


text:
    DIVORCE AND ALIMONY
    [Cuyahoga (8th) Circuit Court,
    November 27, 1911.]
    Marvin, Winch and Niman, JJ.
    Clayton Thomas v. Isabelle Thomas.
    Alimony Pendente Lite Allowed on Petition Alleging Failure to Provide Suitable Clothing.
    In the absence of a motion to make it more definite and certain, a petition for divorce and alimony will authorize an order allowing alimony pendente lite when it alleges extreme cruelty on the part of the husband, specifying that he failed to resent insults offered to her by another in his presence, and gross neglect of duty, specifying failure to provide her suitable clothing.
    Error.

      Wood, Miller & Bothenberg, for plaintiff in error.

      Bernsteen & Bernsteen, for defendant in error.
   MARVIN, J.

Isabelle Thomas is the wife of Clayton Thomas. She brought suit in the court of common pleas for divorce and for alimony. The case being pending in the court, she made a motion for alimony pending the suit, and the court ordered such alimony paid to her.

It is suggested on the part of- the defendant in error that this is not a final order, but we hold that it is, in such sense that error may be prosecuted to it here.

The error complained of is that the court allowed this alimony in a case in which the petition failed to state a cause of action for either divorce or alimony, and it is upon this question that the ease is submitted to us.

Without determining whether such alimony could be allowed or not in a case where the petition failed to state a cause of action, it is sufficient for the purpose of this case to find, as we do find, that the petition, unchallenged by any motion to make it definite and certain, states a cause of action.

The petition avers that the defendant- was guilty of gross neglect of duty in this, that ever since said marriage of said plaintiff to said defendant, the said defendant has failed to provide for her a proper home, according to her station in life; that he has compelled her to live with his parents, refusing to keep a house himself, and although she has many times requested and demanded that he obtain a residence for himself and live apart from his folks, yet he has refused to do so, and still refuses so to do.

Plaintiff further says that during their married life he has failed to provide her with the necessary clothing, according to her station of life, and said plaintiff has been compelled to ask the bounty of her parents to obtain such clothing.

She says further that the defendant was guilty of extreme cruelty in this, that he has refused to live apart from his folks, and that his mother has insulted said plaintiff repeatedly in both the presence of the defendant and callers, and that she (the mother) has made life unbearable for her, and that when she remonstrated with her husband on the conduct of his mother, he has taken sides with her against said plaintiff.

Without stopping to read further, we think that the petition construed liberally, as the statute requires us to construe it, sufficiently states a cause of action. Doubtless it would be for the court on the trial to determine whether the facts proved were such as to make the conduct of the defendant extreme cruelty or not. It depends somewhat on the circumstances of the defendant, and it would depend largely, so far as insults and the like are concerned, what such insults consisted of. One can well conceive of insults which might be offered to a wife in the presence of her husband by another party, the failure to resent which might constitute extreme cruelty on the part of the husband, and one .may easily conceive of the circumstances which would make the failure of the husband to provide suitable clothing for his wife both neglect of duty and extreme cruelty.

No motion was made in this case to require the plaintiff to make her petition definite and certain, and as against a demurrer, we hold that this petition would be good. So finding, we affirm the judgment of the court below.

Winch and Henry, JJ., concur.


text:
    ELEVATORS — MASTER AND SERVANT
    [Cuyahoga (8th) Circuit Court,
    November 27, 1911.]
    Marvin, Winch and Henry, JJ.
    Fred Inmore v. Schofield Co.
    Sudden Starting of Elevator Due to Negligence of Fellow-Servant, or Intruder Imposes No Liability on Owner.
    There can be no recovery by a fireman in a business building who was injured when he stepped off an elevator in the building by its sudden starting, he having operated the elevator himself, with knowledge that other employes were permitted to do the same thing, no defect in the construction or operation being shown and the only reasonable explanation of the accident being that some other employe, or fellow-servant, or some intruder upon the premises, started the elevator without warning.
    Error.

      Gaughan <& Collins, for plaintiff in error.

      Ford, Snyder & Tilden, for defendant in error.
   MARVIN, J.

The plaintiff was in the employ of the defendant as a fireman in a large business block in this city. His duties were in the basement of the building, and were performed at night. On the morning of December 20, 1907, at 6 o’clock, when he had completed his work for the night, and was ready to leave the building, he stepped into an elevator which was standing on the basement floor, and himself operated the elevator, raising it, with him on it, to the ground floor. Having reached the level of the ground floor, he started to step out of the elevator, when it started upward, he being partly out of it, and caught him between the floor of the elevator and the next floor above the building, in such wise that he was seriously injured.

The evidence introduced on the part of the plaintiff showed that this elevator was one which the various employees in the building were accustomed to run up and down, each for himself as he had occasion to use it; that because of that fact, the plaintiff used it; that he had knowledge that the other employees in the building were accustomed to use it as he did. No notice was given to him that somebody else was going to use it at the time he undertook to step off. The elevator was in perfect condition; there were at least two other employees of the company about the building; one was the night watchman. The probability would seem to be, though there is nothing certain about it, that one of these men started the elevator as the plaintiff was stepping from it. If so, he was a fellow-servant with the plaintiff, and this would bar a recovery in the action.

As already said, the plaintiff knew that the various employees were accustomed to use this elevator as they had occasion to use it. Knowing this, he chose to use it, and did use it, and was injured, not become of any improper construction or condition of the elevator itself, but because of some reason other than improper construction or improper condition of the elevator. What that something was is a matter of conjecture, but as already said, the probabilities are that one of the other employees, who were known by the plaintiff to be about the building at the time, started it. If not, it would seem as though it must have been some intruder upon the premises, who was there without any permission or license from the employer. In either event the plaintiff would not be entitled to recover.

At the close of the plaintiff’s evidence, the court directed a verdict for the defendant, and the judgment is affirmed.

Winch and Henry, JJ., concur.


text:
    TAXES
    [Cuyahoga (8th) Circuit Court,
    November 27, 1911.]
    Marvin, Winch, and Henry, JJ.
    W. Scott Robinson, Exr. v. Francis W. Bowler.
    Remainderman Paying Taxes on Death of Life Tenant not Volunteer and May Recoup from Executor.
    Plaintiff was entitled to the remainder in certain real estate, subject to a life estate in another. The life tenant died October 24, leaving a will of which defendant was executor. Before December 20, 1909, plaintiff requested defendant to pay the taxes for 1909, payable at that time, which defendant refused to do, the same remaining unpaid until March 16, 1910, when plaintiff paid all the taxes for 1909 and penalty attached for nonpayment of the part due December 20, 1909, and presented his claim therefor to the executor who rejected it. Suit being brought upon the claim, Held: The taxes were a debt of the estate of the life tenant, and it was the duty of her executor to pay the same; the remainderman was not a volunteer in paying them and was entitled to recover.

      T. H. Johnson and. William Howell, for plaintiff in error.

      A. A. <& A. H. Bemis, for defendant in error.
   MARVIN, J.

M. Louise Bowler died on October 24, 1909. She was tenant for her life of certain real estate in this county. Francis W. Bowler was entitled to the remainder in the same real estate upon the determination of said life estate.

■ The taxes upon said real estate for 1909, were not paid by the life tenant, nor by the plaintiff in error, who is the executor of her will. Before December 20, 1909, Francis W. Bowler requested the executor to pay said taxes. This the executor refused to do, and the part of said taxes which, by law, were payable on or before December 20, 1909, remained unpaid until March 16, 1910, when the plaintiff paid the entire taxes on the premises for the year 1909 with the penalty which was attached for the nonpayment in December, 1909.

Bowler presented a claim against the executor on account of such payment, and this was rejected. Bowler, by his action in the court below, sought to recover the amount so paid by him.

The foregoing are the facts as they appear by the petition and the answer in the case. On motion of Bowler the court gave judgment in his favor upon the pleadings, and this is presented here as error.

First, were the taxes for all of the year 1909 chargeable to the life tenant? Section 5680 G. C. provides that “each person shall pay tax for the lands of which he is seized for life, ’ ’ etc.

Section 5671 G. C. provides that the “lien of the state for taxes levied for all purposes in each year shall attach to all real property subject to such taxes, on the day preceding the second Monday of April annually and continue until such taxes with any penalty accruing thereon are paid.”

Section 2593 G. C. provides that “on or before the first day of October of each year, the county auditor shall deliver to the county treasurer a true copy or duplicate of the books containing the tax list required to be made by him for the year.

In reference to the estate of deceased persons See. 1.0662 G-. C. provides that “taxes or penalty lawfully placed on a duplicate shall be a debt of the decedent to have the same priority and be paid as other taxes, and collectible out of the property of the estate. ’ ’

Section 2658 G-. C. provides that “when taxes are past due and unpaid, the county treasurer may distrain sufficient goods and chattels belonging to the person charged with such taxes,” etc.

Section 0678 C. C. provides, “If one-half the taxes charged against an entry of real estate is not paid on or before the 20th day of December in that year, or collected by distress or otherwise, ’ ’ etc., clearly showing that the remedy by distress or otherwise,” etc., clearly showing that the remedy by distress provided in Sec. 2658 G-. C. is not confined to personal property, but extends as well to real estate.

In Hoglen & Houck v. Cohan, 30 Ohio St. 436, it is held that “taxes levied upon real estate, and which become a lien upon such real estate in April in each year, becomes due on the first day of October in each year, that being the date on which the duplicate of taxes is required by law to be, placed in the possession of the county treasurer.”

In the opinion in this case, the court uses the following language:

“True the treasurer can not enforce collection until after the 20th day of December, not for the reason that the taxes are not due, but because certain days of grace are given the owner in which to make payment, before penalty will be added for his delinquency.”

These statutes and this case, together with-others having a bearing upon the question (see especially Welch v. Perkins, 8 Ohio, 52, 53 [28 Am. Dec. 640], where it is held that the administrator may sell land to pay taxes which decedent owed at his death), lead us to the conclusion, as we think, the inevitable conclusion that, when Mrs. Bowler died on October 24, 1909, she owed the taxes on this land for the entire year; that this was in the nature of a debt, payable out of an estate left by her, personal or real, and unless Francis W. Bowler, when he made the payment, on March 16, 1910, is to be treated as a volunteer, paying the debt of another when it was hone of his business, he was entitled to recover as he did in this action.

On this latter question, there would seem little question that Bowler might pay the taxes as he. did, and maintain his action against the executor on account of such payment. He was not a volunteer, forcing himself in where he had no interest. His lands were subject to a lien for the payment of these taxes, the time for payment of the first half of the year had passed, and a penalty had already attached — interest was accruing; until these taxes were paid, his title to his lands was under a cloud, and the amount to be paid was increasing; the executor had refused to pay. His situation was far removed from that of one who officiously intrudes into the business of another. Authorities on'this point, cited in the brief of counsel for the defendant in error, fully sustain the position, that Bowler is not to be held as a volunteer. See especially Erwin v. Argus, 93 Fed. 629-633.

There the court quotes from authorities, and on the weight of such authorities, and the justice and reason of the rule, says:

“Where it is shown that the payment was for the protection of his own property and he is compelled to pay what the defendant himself ought to have paid, the payment under such circumstances will not be deemed to have been officiously made, nor will the plaintiff be looked upon as a mere volunteer or intermeddler in matters in which he has no interest or'concern.”

We reach the conclusion, therefore, that the judgment was right, and it is affirmed.

Winch and Henry, JJ., concur.


author: WINCH, J.

text:
    ASSESSMENTS
    [Summit (8th) Circuit Court,
    October 12, 1910.]
    Henry, Marvin and Winch, JJ.
    Catherine Rentschler et al v. Akron (City).
    Actual Knowledge of Work on Street Improvement not Substitute for Notice of Declaratory Resolution.
    In an action to restrain the collection of a special assessment admitted to be excessive, no notice of the passage of the resolution declaring the necessity of the improvement contemplated having been served upon the plaintiff, it is no defense that plaintiff had knowledge of a former petition for and remonstrance against the improvement, nothing having been done thereunder, nor that she had knowledge of operations on the street after the passage of the resolution and ordinance under which the work was finally let and done.
    Appeal.
   WINCH, J.

This action was brought to enjoin the collection of a special assessment on the ground that it is excessive and that no notice of the passage of the resolution declaring the necessity of the improvement contemplated was ever served upon the plaintiff as required by law.

Both these claims are admitted by the city, but it is urged that plaintiff should nevertheless be held liable for part of the assessment because she had actual knowledge of the progress ■of the improvement.

The evidence submitted to sustain this point is not sufficient.

Plaintiff’s knowledge of a former petition for and remonstrances against the improvement of the street on which her property abuts amounts to nothing, for it is conceded that nothing was ever done thereunder. A year after that petition was abandoned; the proceedings complained of were begun.

Nor is her knowledge of operations on the street after the passage of the resolution and ordinance, and the final letting of the contract for the work to be done thereunder, of any avail to the city.

It was then too late for her to submit any claim for damages or to approach the council with respect to the character of the improvement which was to be made.

The Supreme Court has held that notice to the resident landowner, substantially as required by Sec. 2304 R. S. (Sec. 3818 G. C.), is a condition precedent to the exercise of the authority to pass a valid ordinance ordering the improvement, so far as such owner is concerned, or to make an assessment on his property to pay for the same. Joyce v. Barron, 67 Ohio St. 264 [65 N. E. 1001].

For the reasons stated in said case, we hold the plaintiff is entitled to all the relief she prays.

Judgment for plaintiff.

Henry and Marvin, JJ., concur.


text:
    SALES
    [Summit (8th.) Circuit Court,
    April Term, 1910.]
    Henry, Marvin and Winch, JJ.
    Frederick W. Anderson v. Frantz Body Co.
    1, Acceptance of Part Held Acceptance of Whole of Articles of Same Quality.
    In an entire contract for the sale of a certain number of articles, all alike and of the same quality, acceptance of part is acceptance of all, though delivered at different times.
    2. Acceptance of Articles Sold Subject to Test Question for Jury.
    When the question of whether the defendant had had time to test articles sold and delivered to him before accepting them is contested, and he claims that the articles could only be tested in use and that he had sent them to a customer for that purpose, the matter of acceptance is peculiarly for the jury, and it is error to charge the jury that the undisputed testimony shows that the articles had been accepted.
    Error.
   WINCH, J.

The issues in tbis case as well as the errors complained of, are best stated by reading part of the charge of the trial judge, which is as follows:

“The controversy in this case grows out of a sale made to the defendant by the plaintiff of six pairs of automobile seats.
“It is conceded that the defendant purchased of the plaintiff six pairs of seats for which it agreed to pay ninety dollars.
“It is conceded that six pairs of seats were delivered to the defendant by the plaintiff and returned by the defendant shipping the same to the plaintiff.
“Under the evidence in this case I say to you as a matter of law that the plaintiff agreed to deliver seats which were good, strong, durable and perfect as to material and workmanship, and peculiarly suited for use in limousine automobile bodies.
“Plaintiff claims the seats he delivered were of the kind and quality, and suited for the purpose for which they were sold.
“Defendant claims that the seats delivered were not good, strong, durable and suitable for use in limousines, and that they were too light, and the iron used in the back of the same was not heavy enough to withstand the strain, and that they were wholly inadequate for use in said limousines.
“I say to you as a matter of law that under the pleadings in this ease and the undisputed testimony, the defendant by receiving the two pair of seats, having ample opportunity to inspect and test the same, and haying fitted them to limousine bodies, and then having sold and delivered them, thereby as a matter of law accepted two pair of seats, and under the pleadings in this case is bound to pay the contract price therefor.
“As to the other four pairs which were later shipped and promptly returned, I say to you that whether or not the defendant is liable to pay the contract price for them depends upon whether the four pairs of seats delivered by the plaintiff to the defendant complied with the terms of the contract, and were good and strong, and durable, perfect as to workmanship and material, and pecularily suited to use in limousine automobile bodies.
‘! If the plaintiff delivered such seats as these he is entitled to recover for said four pairs of seats. ’ ’

We think the trial judge was wrong in holding that the undisputed testimony in the case showed that the defendant had accepted the two pair of seats. Whether they had had time to test them or not, was hotly contested, the defendant claiming that they could only be tested in use and had to be sent to their customer in Chicago for that purpose. This. question was peculiarly for the jury in this ease. Williston, Sales, Sec. 475.

Should the jury have found that these two pair of seats were accepted, then the balance of the charge was wrong, because this was an entire contract, and all the articles being alike and of the same quality, acceptance of part would be acceptance of all. Benjamin Sales, 6th Ed., p. 163.

Notwithstanding these errors in the charge, we find no error in the court’s refusal to give any of the plaintiff’s requests to charge before argument. The second request very nearly states the law of the case. It is deficient, however, in assuming that the four pairs of seats were identical in character and quality with the first two pair.

For error in the charge the judgment is reversed.

Henry and Marvin, JJ., concur.


text:
    LANDLORD AND TENANT
    [Summit (8th) Circuit Court,
    October 12, 1910.]
    Henry, Marvin and Winch, JJ.
    Russell T. Dobson v. Charles T. Howe et al.
    Failure of Landlord to Repair Premises Injured by Fire Relieves Tenant from Rent.
    While a tenant was in possession of a storeroom under a lease which provided, “if the premises be slightly damaged by fire they shall be promptly repaired by the party of the first part,” a fire occurred and the premises were damaged by fire and also by water used in its extinguishment. The fire occurred on the fifth of the month, on the twenty-first the tenant gave notice that he would move out if the premises were not repaired, and nothing substantial being done in that respect, he moved out on the last day of the month, Held: The tenant was not liable for rent thereafter.
    Error.
   WINCH, J.

Tbis was an action for rent on a lease of a room in a building owned by Dobson, which defendants occupied as a grocery store. Defendants defended on the ground that the store room was so damaged by fire to be unsuitable for use as a grocery store and that the landlord neglected to repair the same within a reasonable time, whereupon they vacated the premises.

The case was tried without a jury and judgment was rendered on the evidence for the defendants. It is claimed that this judgment is not sustained by .the evidence and some argument is based upon the difference between the covenant in the lease regarding the situation developed by fire and the provision of the General Code upon the subject.

Section 6521 G. C., reads as follows:

“The lessee of a building which, without fault or neglect on his part, is destroyed or so injured by the elements or other cause, as to be unfit for occupancy, shall not be liable for rent to the lessor or owner thereof after such destruction or injury, ■unless otherwise expressly provided by written agreement or covenant. The lessee must thereupon surrender possession of the premises so leased."

The lease contains the following covenant: "if the premises be slightly damaged by fire they shall be promptly repaired by the party of the first part. ’ ’

In the view we take of the evidence it is immaterial whether the statute or the covenant controls.

The sole damage to the premises was from fire. While much discussion was had on the hearing with regard to damage from water, as distinguished from damage by fire, the water spoken of was that poured into the store room by firemen in an effort to put out the fire. The damage was all covered by insurance against fire, for it resulted directly from the fire which necessarily required the use of water for its extinguishment.

Having this in mind we find there was evidence sufficient to establish the proposition that the store was "so injured by the elements as to be unfit for occupancy, ’ ’ using the words of the statute, and that it was "slightly damaged by fire,” using the words of the lease, so that it became the landlord’s duty to promptly repair the same. Indeed, we think the premises were very seriously damaged by fire; though the walls remained, the room was unfit for occupancy.

The record shows that the landlord neglected his duty to repair the premises. The fire occurred on November 5; Dob-son did nothing in the way of repairs except to put some boards over a skylight, where the glass was broken. This shut out the light; no heat was furnished.

On November 21, the tenants gave the landlord notice that they would abandon the premises if nothing was done to make the premises fit for occupancy. He did nothing and they moved nut November 30th, paying for the month of November.

We think they had a right to move out and terminate the lease and not that the law required them to remain, make their own repairs and then sue the landlord in damages for breach of his agreement to promptly repair, as claimed by plaintiff.

There being in the record sufficient evidence to sustain the judgment, it is affirmed.

Henry and Marvin, JJ., concur.


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    ELEVATORS — MASTER AND SERVANT
    [Summit (8th) Circuit Court,
    October 12, 1910.]
    Henry, Marvin and Winch, JJ.
    James L. Dilworth v. George W. Carmichael.
    Assumption that Failure to Signal of Lowering Elevator was Negligence of Fellow Servant Erroneous.
    In an action for personal injuries resulting from failure to give a signal before an elevator was lowered in a shaft where plaintiff was compelled to work, it is error to assume that the failure to give the signal was due to the negligence of a fellow-servant, and to render judgment on the pleadings for the defendant, when the pleadings do not state the specific employe whose duty it was to give the signal.
    Error.
   WINCH, J.

This was a personal injury damage ease in which judgment was rendered on the pleadings in favor of the defendants.

The second amended petition alleges that plaintiff was working upon a platform erected around the exterior of an elevator shaft at a height of about twenty feet from the ground; that he was obliged in the doing of his work to allow his head or some portion of his body to extend inside the elevator shaft and in the path of the ascending or descending elevator.

The petition further alleges:

“Plaintiff further says that a whistle had been placed by said defendants on the top of said derrick for the purpose of giving warning to employees or any other persons when said elevator was about to be lowered; that prior to July 3, 1909, and prior to said accident on said day it had always been the custom of the defendants to give warning of the descent of said elevator by blowing said whistle; that this defendant and other employees while working on said derrick had always been able and accustomed to protect themselves from any and all danger from the lowering of said elevator by reason of the warning given by means of said whistle; that this plaintiff and other employees while working on and about said derrick had continuously and habitually depended and relied upon the blowing of said whistle to warn them when said elevator was about to be lowered; and that this plaintiff had, at any and all times prior to said whistle always been able to secure a place of safety before said elevator was lowered.
“Plaintiff further says that said defendants always had knowledge that employes were working in and about said derrick, and that it was exceedingly dangerous to lower said elevator without the customary warning being given, by blowing of said whistle as aforesaid.
“Plaintiff further says that it was impossible to perform any of his labor on said derrick without placing himself in a dangerous position if said elevator should be released or lowered without blowing said whistle or warning having been given, but that said position was not necessarily dangerous for any other reason except as above stated; that defendants had knowledge of this fact.
‘1 That said defendants having put said plaintiff in the position as aforesaid failed and neglected to use reasonable care to protect plaintiff while he was thus engaged from any danger to which plaintiff was exposed in the performance of his said duty, but said defendants did not protect said plaintiff from danger by blowing said whistle or giving him any warning whatever that said elevator was about to be lowered, but on the contrary the said foreman carelessly and negligently went away from said work while plaintiff was repairing said derrick and unknown to the plaintiff left or provided no one to warn said plaintiff or to protect him in his place of danger; that plaintiff was not warned by any means or in any manner that said elevator was about to be lowered; that the defendants negligently and wrongfully by its servants or agents, to wit, their engineer, whose name plaintiff is ignorant of, without any notice or warning to plaintiff as aforesaid, put said elevator in motion whereby plaintiff was injured.
“Plaintiff further says that said injury occurred from no fault or neglect on his part, but solely and only from reason of defendants carelessly and negligently failing to warn him in his place of danger that said freight elevator was about to be lowered and in failing to provide anybody for that purpose and by carelessly and negligently putting said elevator in motion.”

The only theory on which the judgment can be sustained is the one that was urged by counsel for defendant in error that this petition shows upon its face that it was the duty of the engineer to give the signal and that he being a fellow servant of the defendant, the company is not liable for this negligence in this respect.

We do not agree with this conclusion regarding the averments of the petition.

It is nowhere in the petition stated that it was the duty of the engineer to give the signal. True, it is stated that the engineer “without notice or warning to plaintiff put said elevator in motion, whereby plaintiff was injured,” but it may have been some other person’s duty to give the signal.

The petition states affirmatively that the foreman “provided no one to warn the plaintiff” and that the company was negligent “in failing to provide anybody for that purpose.” This negatives any inference otherwise to be deduced that the engineer was the person to blow the whistle which was a long distance from him, on top of the elevator, while he was on the ground.

It is likely, on the hearing, it may develop that it was the engineer’s duty to give the signal, but the trial judge should not have assumed such a fact, before it developed. There was an issue on this point, for the pleadings do not concede that it was the engineer’s duty to give the signal.

Judgment reversed for error in rendering judgment on the pleadings.

Henry and Marvin, JJ., concur.


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    CONTRACTS — DAMAGES
    [Cuyahoga (8th) Circuit Court,
    October 28, 1910.]
    Henry, Marvin and Winch, JJ.
    Mike Polowsky et al v. Otto J. Lorenz.
    Measure of Damages in Case of Architcet Wrongfully Discharged.
    The rule that one wrongfully discharged from his employment will be entitled to recover the agreed wages or salary for the whole time, but reduced by the amount which he has or might have earned by engaging in other employment during the time of the breach, does not apply to an architect retained to draw plans of a building and superintend its construction, who is wrongfully discharged after furnishing the plans and so prevented from superintendence, for his employment does not intend that he shall devote all his time to it, and is not inconsistent with the pursuit of his profession.
    Error.

      C. J. Benkoski, for plaintiffs in error.

      Geo. C. Johnson, for defendant in error.
   WINCH, J.

This action was tried in the common pleas court, without objection, as one for damages for breach of contract of employment as an architect, though the petition seems to seek recovery on the contract itself. The question of wrongful discharge was the main question in issue upon which the jury found for the plaintiff and assessed his damages as something less than the full amount due under the contract, had the services been rendered in full.

In this court the sole complaint is that the verdict is not sustained by the evidence and is excessive. No complaint is made as to the charge, or as to the manner in which the case was tried.

We have examined the evidence as to its weight and find there was sufficient evidence to warrant the jury in its conclusion that the architect was wrongfully discharged, though the evidence was conflicting on this subject.

As to size of the verdict, we think the result was somewhat .less than the architect might have been awarded.

The building cost $16,000, the architect to have 2%% thereof as his compensation; % of one per cent, for the drawings, one per cent, when the contracts were let, and one per cent, for superintendence of the construction of the building. He was discharged before the erection of the building was commenced and so had no superintendence to pez’foz’m.

The usual rule in such cases is that “the plaintiff will be entitled to recover the agreed wages or salary for the whole time, but reduced by the amount which he has or might have earned by engaging to any other party during the time of the breach,” but “the rule does not apply to a professional man if the services he was required to render did not purport to occupy all his time, but were of a character consistent with the pursuit of his profession and were expected to be discharged concurrently therewith.” 3 Sutherland on Damages, 693.

The case usually cited as sustaining this doctrine is that of a physician, Galveston County v. Ducie, 91 Tex. 665 [45 S. W. 798], but we think the exception is peculiarly applicable to the case of an architect. Before or after he goes to his office he can run around and inspect half a dozen jobs in little more time than he can inspect one, depending upon their location, of course.

At any rate, there was no evidence introduced in this ease tending to show that the architect was enabled to increase his income from other sources by reason of being relieved from the . obligation to superintend the erection of this building.

Viewing the law as to the measure of damages, as we do, we can not say that the verdict was excessive.

Judgment affirmed.

Henry and Marvin, JJ., concur.


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    DEATH — NEGLIGENCE
    [Cuyahoga (8th) Circuit Court,
    November 9, 1910.]
    Henry, Marvin and Winch, JJ.
    Theodore Dluzinski, Admr. v. Griese-Walker Co.
    Knowledge of Defect In Scaffold within Express or Implied Knowledge of Deceased Precludes Recovery.
    In an action for wrongful death of a workman, killed by the falling of a scaffold upon which he was working, due to alleged defective construction thereof, in the absence of a statute otherwise providing, in order that plaintiff may recover it must be shown that the construction of the scaffold was defective, that the defendant had knowledge of the defect, or ought to have had, and that the deceased did not know of the defect and had not equal means of knowing with the defendant.

      D. N. Stone, for plaintiff in error.

      M. P. Mooney, for defendant in error.
   WINCH, J.

This was an action for wrongful death, verdict for defendant being directed at the close of plaintiff’s evidence.

The petition alleges that plaintiff’s decedent was a hod carrier in the employment of the defendant company, and that while stepping upon a scaffolding constructed or caused to be constructed by the company for his use, it gave way by reason of the weak, negligent and careless manner in which it had been constructed, precipitating Mm to the ground, whereby he was mortally injured.

The petition further alleges that the defendant knew, or ought to have known of the dangerous condition of the scaffolding and that the defect therein was not so obvious and apparent that the deceased should have been able to guard himself, nor was he informed that the scaffolding was not properly constructed, and that it gave way without any fault on the part of the deceased, but solely through the negligence of the defendant.

The answer admits that the deceased was employed by it as a hod carrier and fell from a scaffolding caused to be constructed by it for the purpose alleged in the petition, and was so injured by his fall that he shortly thereafter died. It denies all other allegations of the plaintiff.

Upon the three propositions that the plaintiff was called upon to establish under the rule laid down in the case of Chicago & Ohio Coal & Car Co. v. Norman, 49 Ohio St. 598, 607 [32 N. E. 857], the evidence was very meager.

1. Was the scaffolding defective?

There was evidence introduced tending to show that the floor of the scaffolding upon which the deceased stepped from a ladder upon which he ascended to it was composed of planks, ten or twelve inches in width; that he stepped from the ladder upon one of these planks against which the ladder rested and that this plank had a square end which rested upon the pointed end of another plank; as he stepped upon the second plank with the pointed end the latter slipped over to one side,' tipped, and the hod carrier was thereby precipitated to the ground. The plank with the pointed end was described as one prepared for driving into the earth.

Probably the end was V shaped, as in sheathing used in sewer excavations.

We t.Mnk this evidence was sufficient to warrant a submission to the jury of the question whether or not the scaffolding was defective.

2. Did the defendant have notice or knowledge of this defect or ought it to have had?

It will be remembered that while the answer admits that it caused the scaffolding to be constructed, it denies that it knew or ought to have known of this defect.

It was shown that the defendant furnished the material used. It was not shown that any one in authority over the deceased put the planks in position on the floor of the scaffold. If the deceased or any one of His fellow-servants superimposed the square end of one plank upon the pointed end of another plank, the company would not be liable for the faulty construction. If the defendant caused the planks to be laid under the direction of some one in authority over the deceased, it would be liable for the defect, for then it would know, or ought to know of the faulty construction. There was no evidence that the matter had ever been called to the attention of the defendant or any one of its officers or agents or any one in authority over the deceased.

We have considerable doubt as to whether there was sufficient evidence to go to the jury on the proposition that the defendant knew, or ought to have known of this defective construction.

3. It was incumbent upon the plaintiff to show that the deceased did not know of the defect and had not equal means of knowing with the defendant.

Upon this proposition the plaintiff wholly failed to make a case.

On the contrary, he showed that the faulty construction was patent and open to casual observation.

His chief witness testified that he came into the building just before the accident, looking for work. He stood at the bottom of the ladder and watched the deceased come down it with an empty hod, fill it with brick and go up the ladder again. He looked up as the deceased stepped from the ladder upon the plank upon which the ladder rested; noticed that that plank had a square end and rested upon the pointed end of another plank. The witness seeing this situation, stepped aside so that he would not be in danger if the very thing should happen which did happen. As he foresaw, the plank tipped and fell and the accident occurred.

The evidence shows that for two days and three hours before the happening of the accident, the deceased and three other hod carriers stepped upon these two planks, perhaps twenty times an hour, and used them in the identical manner in which the deceased was using them when the accident occurred. The second plank was but one step from the ladder. Every.time the deceased went up the ladder he must have seen just what the witness saw from the foot of the ladder. We think that the evidence is clear and shows that the deceased himself knew, or ought to have known of the defect; at least he had equal means of knowing with the defendant.

So long as the rule laid down in the Norman ease is to be applied, there can be no recovery under such circumstances as were shown in evidence by the plaintiff in the case, and plaintiff in error does not claim the benefit of any statute in this behalf.

Verdict was properly directed for the defendant and the judgment is affirmed.

Henry and Marvin, JJ., concur.


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    LANDLORD AND TENANT
    [Cuyahoga (8th) Circuit Court,
    November 9, 1910.]
    Henry, Marvin and Winch, JJ.
    Emil Leuchtag v. Philip Schaefer et al.
    Implied Warranty of Landlord’s Title Goes with Assignment of Lease.
    An implied warranty as to the lessor’s title or right to demise, goes with an assignment of a lease.
    Error.

      Benesoh <& Kornhauser, for plaintiff in error.

      Lang, Cassidy á Copeland, for defendant in error.
   WINCH, J.

The question for review in this case is whether a demurrer to the petition filed in the case below was properly overruled.

The petition asks that Leuchtag, who was defendant in the case, be restrained from transferring certain notes delivered to him by the Schaefers as part consideration for the assignment of a lease and that the notes be canceled bn the ground that the consideration thereof had failed.

The allegations in this respect are that on April 16, 1907, one Patrick Fitzgerald executed the lease in question to one John Kofron for a term of four years. Thereafter Kofron assigned the lease to the defendant Leuchtag, and he in turn on April 1, 1909, duly assigned all his interest in the lease to the Schaefers.

Fitzgerald’s interest in the property terminated October 1, 1909, whereupon the real owners of the property demanded possession of the premises.

The demurrer to the petition raises the question whether any implied warranty as to the lessor’s title or right to dismise goes with an assignment of a lease, counsel for plaintiff in error claiming that the only things which Leuchtag, in this case, warranted, were that his title to the lease which Fitzgerald had made was good and that the paper was genuine and not a forgery. He says that the Schaefers should sue Fitzgerald and not him.

The question does not seem to have been settled in Ohio, but we have a dictum, in the case of Wetzell v. Richcreek, 53 Ohio St. 62, 69 [40 N. E. 1004], which so clearly sets forth the view of the Supreme Court upon this subject, that we feel constrained to follow it, until that court passes squarely upon the matter.

That dictum is as follows:

“It is held by some authorities, that no covenants are implied in the assignment of a lease. Waldo v. Hall, 14 Mass. 486; Blair v. Rankin, 11 Mo. 442. Other authorities, however, maintain the contrary doctrine. Thus, in Souter v. Drake, 5 B. and Ad., 992-1002, it is said by Lord Denman that ‘unless there be a stipulation to the contrary, there is in every contract for the sale of a lease, an implied undertaking to make out the lessor’s title to demise, as well as that of the vendor to the lease itself, which implied undertaking is available at law as well as in equity.” This would seem to be the better rule, because, it can hardly be supposed to be the intention of one party to purchase, or of the other to sell the mere instrument of lease without any beneficial interest under it, hut rather that the subject of the purchase and sale is the right to enjoy the term purported to be demised, and all the benefits which it stipulates to confer on the lessee.”

The common pleas court evidently adopted the view thus expressed and overruled the demurrer. We are disposed to do the same without further consideration of the conflicting cases from other jurisdictions, the cases relied upon by counsel for plaintiff in error being mentioned in said dictum, as not expressing the better rule.

Judgment affirmed.

Henry and Marvin, JJ., concur.


text:
    DIVORCE AND ALIMONY
    [Cuyahoga (8th) Circuit Court,
    November 14, 1910.]
    Henry, Marvin and Winch, JJ.
    Homer Schultz v. Louise Schultz.
    Custody of Little Girl Given to Father, when Mother Shows Lack of Affection.
    Other things being equal, the custody of a little girl of tender years should be awarded to her mother, but when the mother shows little affection for the child, she will be given to the father.
    Error.

      E. C. Schwan, for plaintiff in error.

      Alexander & Dawley, for defendant in error.
   WINCH, J.

This is an appeal under favor of Sec. 8035 G. C., from the judgment of the common pleas court in a divorce case awarding the custody of a female infant six years old to the father, to whom a divorce was granted from the mother on the ground of her gross neglect of duty.

Other things being equal, it seems that a little girl of tender years should be in the custody of her mother rather than of her father, if she is so unfortunate as to be unable to live with both.

From the evidence in this case we find that the mother is now living with her mother, the child’s grandmother, who loves the little girl dearly, and greatly wants it with her. This grandmother’s home would be a comfortable place for the child.

The mother is working every day at the tack works, earning about $1.25 per day. We believe her conduct since the divorce last June has been without reproach.

From the husband’s testimony it appears that much of the marital trouble was over this child.

When the child was sixteen months old the mother let the grandmother have her and the little girl lived with her grandmother until her parents were divorced.

The mother says the father consented to this arrangement but he denies it. When asked by the court why she consented to such an arrangement the mother made no satisfactory reply.

We do not think the mother’s conduct towards the child in this respect, during the years she was free to have it with her shows the full maternal love, nor does it promise a full performance of a mother’s duty toward the child.

She says the grandmother took such pleasure in the child that she could not deny her the little girl.

Selfish love of the grandmother has here, perhaps, caused a daughter to lose her husband and might cause a grandchild to lose her parents, for by placing the child with this grandmother she would be taken from her father, with little assurance that the mother would share in the grandmother’s care of her, or give her any more attention than she did before.

We find the father to be a suitable custodian for the child. He is living with his parents, who are comfortably situated and glad to have the little girl with them.

We are not disposed to make any change in the custody of the child, but it is apparent that the provision in the order now governing the mother’s access .to the child is inadequate.

It is therefore ordered that the father cause the child to be taken to the mother’s home every Saturday, not later than three o’clock in the afternoon, and leave her there until Sunday following, when he may call or send for her, taking her away not earlier than twelve o’clock noon. The decree may also provide that the father pay the mother fifty cents a week for the support of the child while it is visiting at the mother’s house, and the costs in this court are assessed against the plaintiff.

Henry and Marvin, JJ., concur.