text:
    EXECUTORS AND ADMINISTRATORS
    [Cuyahoga (8th) Circuit Court,
    February 18, 1907.]
    Winch, Henry and Márvin, JJ.

       James R. Sprankle v. Arthur Odell et al.
    Exceptions may be Taken to Appraisement.
    An appraisal when one is made, is an essential part of an inventory filed by an executor or administrator, and under the provisions of Sec. 6024 R. S. (Sec. 10639 G. C. et seq.), exceptions may be taken to that, as well as to any other part of the inventory.
    Error.

      J. J. Hogan and Goulder, Holding & Hasten, for plaintiff in error.

      Squire, Sanders & Dempsey, Wallace I. KmglnA and Walter C. Ong, for defendants in error.

      Affirmed no opinion, Sprankle v. Sprankle, 78 Ohio St. 404.

   MARVIN, J.

James Sprankle died in this county in 1904, leaving a will in which James R. Sprankle, Jr., was named as executor. Letters testamentary were issued to the executor so named, without bond; the will provides that no bond need be given. Appraisers of the estate were appointed in pursuance of the statute, and an inventory including an appraisal made by such appraisers, was filed in the probate court, by said executors. Later this executor resigned his said trust, and the defendant in error, Arthur Odell, was appointed administrator de bonis non with the will annexed of the estate of the testator. Still later, to-wit, on May 15,1905, James R. Sprankle, Jr., who had been executor of the will, and who was a legatee and devisee under such will, filed in the probate court a paper writing designated “Exceptions to Inventory," which writing reads as follows:

“In the Probate court of Cuyahoga county, Ohio.
“No- In Re Estate of James R. Sprankle, Deceased. Exceptions to Inventory.
“Now comes James R. Sprankle, Jr., and represents to this honorable court that he is the son of James R. Sprankle, deceased, and one of his heirs and a legatee under his will in this court, and files this his exception to the inventory of the estate of James R. Sprankle, deceased, filed in this court on or about March 2, 1905, and says that the appraisement of the personal property of said estate was made on or about September 3, 1904, by appraisers appointed by this court, who proceeded to appraise the personal property of said decedent in compliance with law; that before the time of said appraisement, this exceptor and Angela M. Sprankle, the widow of said deceased, agreed that said personal property should be appraised very low, and represented to the appraisers that they had made said agreement, and that with the exception of a daughter of said deceased they were the only persons interested in said estate, whereupon said appraisers made appraisement of said property and gave heed to the request of said two persons, and your exceptor represents that said personal property was appraised very low, and much below the actual value thereof. Your exceptor further represents that since said time, as he understands and believes, the said Angela M. Sprankle has concluded not to take under said will.
“Your petitioner further represents that if said appraisement be allowed to stand, that it will be a great loss to said real estate and to the legatees mentioned in said will and tbe heirs of said decedent.
“Wherefore, your petitioner and exceptor prays that the appraisers since appointed by this court be directed to appraise all of the personal property of said estate, and to file an inventory containing the appraisement of all the personal property, and that the court make such further order with regard to the appraisement of the personal property of said decedent as the facts and law require.
‘ ‘ Jambs R. Sprankle, Jr.,
“By Goulder, Holding & Masten,
“His Attorneys.”

These exceptions were, as will be seen, exceptions to the appraisement contained in the inventory filed by the exceptor while he was acting as executor. Proper notice was given to the parties interested in the estate, including the administrator de bonis non; on August 26, 1905, these exceptions were heard in the probate court, and sustained as to the appraisal of some of the items of the inventory, and overruled as to others. From the judgment and order of the probate court made upon these exceptions, the exceptor did all things necessary to perfect an appeal to the court of common pleas, providing the probate court had jurisdiction to hear and determine such exceptions. Such appeal is provided for in the section which provides for the filing of exceptions to the inventory, viz., Sec. 6024 R. S. (Sec. 10639 G. C. et seq.), which reads:

“At any time within one year after j;he return of an inventory any person interested in the estate may file exceptions to the inventory; and thereupon, the court shall set a day for the hearing thereof, and cause written notice of such filing and of the time so fixed for the hearing to be given to the executor or administrator not less than five days before the time so fixed for the hearing; and for good cause the hearing may be continued for such time as the court shall deem reasonable; and at the hearing the executor or adminstrator, and any witnesses subpoenaed by either party may be examined under oath, and the court shall enter its findings on the journal and tax the costs as may be equitable; and on appeal may be taken to the court of common pleas, by either party, from the finding, order, judgment or decision of the probate court on the hearing of said exceptions to the inventory, as in other cases.”

In the court of common pleas a motion was made to dismiss this appeal, and this motion was sustained. The action of the court in sustaining this motion is complained of in this proceeding in error, and it is that order of dismissal, and no other, which is here for consideration.

The court was right in sustaining this motion, if the probate court was without jurisdiction to hear the exceptions; otherwise the order of dismissal was erroneous. As will be seen by the reading of See. 6024 (10640), “any person interested in the estate may file exceptions to the inventory” and on the part of the plaintiff in error it is'urged that this included all that by law is required to be contained in the inventory. While on the other hand the contention is that the appraisal of the property is not a part of the inventory in such sense that exceptions may be taken to such appraisal.

• It will be noticed that the exceptions filed complain only of the appraisal. By Sec. 6023 E. S. (Sec. 10637 G. C.), it is provided that the word “inventory” in this chapter shall include an appraisement. It is said that this part of Sec. 6023 was enacted after the enactment of Sec. 6024, but, it is provided by Sec. 6025 (10641.) that:

“If the court at the time of granting letters testamentary or letters of administration shall think fit, it may order the executor or administrator to also include in the inventory an appraisement of all the real estate of the deceased.”

Section 6031 E. S. (See. 10647 G. C.), provides:

' ‘ ‘ The executor or administrator shall, with the aid of the appraisers, if an appraisement is made, make the inventory herein directed. ”,

This language clearly implies that the appraisement is a part of the inventory.

Again in See. 6035 E. S. (Sec. 10651 G. O.), it is provided that the inventory shall contain a particular, statement of all bonds, etc., belonging to the deceased, and the sum which, in the judgment of the appraisers can be collected on each claim, So that it would seem from this section that the Legislature understood the appraisement to be a part of the inventory and similar provision is made in Sec. 6036 E. S. (Sec. 10652 G. C.) :

1 ‘ The appraisers shall not include in the inventory the provisions, property or money set off and allowed by them to the widow or children, but the same shall be stated in a separate schedule signed by them and returned with the inventory, to the court by the executor.”

Section 6044 E. S. (Sec. 10660 G~. C.) provides that:

“Upon the completion of the inventory it shall be signed by the appraisers and a copy thereof shall be retained by the executor or administrator, and he shall return the original to the probate court.”

We think it clear from these several provisions, that the appraisement, where one is made, is an essential part of the inventory, and that exceptions may be made to that part of the inventory as well as to any other part of it, and so the exceptions filed in this case are properly denominated “Exceptions to the inventory” and come within the provisions of Section 6024 (10640), unless it be as urged by counsel for the defendant in error, that because of the language used in the writing denominated 1 ‘ exceptions to the inventory, ” it is not in any proper sense an exception.

In the argument of the case to us it was urged that the ex-ceptor ought not to have been heard, because of the inconsistency of his filing exceptions to the inventory which had been filed by himself as executor, and that no proper reason was in these so-called exceptions for a correction of the appraisal. It is said in the so-called exceptions that the appraisal was'.too low, because of suggestions made by the widow of the deceased and by the executor himself that it was desired that the property should be appraised low. However weighty this contention may be, it does not come to the question of the jurisdiction of the probate court to pass, upon the exceptions.

Jurisdiction as defined in Anderson’s Law Dictionary, is the power “to hear and determine a cause.” And, in the case of Rhode Island v. Massachusetts, 37 U. S. [12 Pet. 657, 9 L. Ed. 1233], this definition is given in the syllabus:

“Jurisdiction is the power to hear and determine the subject-matter in controversy between parties to a suit.”

When this writing was filed with the probate court, that court was given power to hear and determine whether the exceptions were well taken, and indeed power to hear and determine whether if all what was stated in the exceptions as shown to be true it would invalidate any part of the appraisement. The moment the court was clothed with power to determine these questions it was clothed with jurisdiction, it would have power under Sec. 6024 (10639), “to enter the findings on the journal and tax the costs as may be equitable and when such order was made, whatever it was, a party interested was entitled to appeal to the court of common pleas.

From this it follows that the order of dismissal of appeal made by the last named court was erroneous, and that judgment is reversed, and the case remanded for further proceedings to that court.

Winch and Henry, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    FRAUDS, STATUTE OF
    [Cuyahoga (8th) Circuit Court,
    November 24, 1905.]
    Marvin, Winch and Henry, JJ.
    Bohemian Mission Bd. of Cleveland v. Charles L. Fish et al.
    1. Contracts not to be Performed within One Year Include Agreements that do not Admit of Performance Therein.
    Contracts “not to be performed within one year,” only include agreements which by a fair and reasonable interpretation of the terms used by the parties and in view of all the circumstances existing at the time do not admit of performance according to the language and intention within a year from the time of the making.
    2. Promissor Handing Promisee Money for First Year of Service
    Promising to Pay Like Amount for Next Year not in Statute.
    When the promissor agrees to furnish money to pay the salary of a person for a period of two years and thereupon hands the promisee- an amount sufficient to pay the first year’s salary accompanied with a statement that she will pay a like amount “next year,” such promise is not within the statute of frauds.
    Error.

      Allison Gibbons, for plaintiff in error.

      Calhoun & Guenther, for defendant in error.
   MARVIN, J.

The case below was brought by this plaintiff against the defendants as executors of the will of Abigail L. Olney, deceased. The facts upon which the case was tried are agreed to. The case was submitted to the court without the intervention of a jury upon an agreed statement of fact. That agreed statement shows that the plaintiff is a corporation, not for profit, and that its work is the- carrying on of mission work for the spread of the gospel in the city of Cleveland; that for the purpose of carrying on its work it leases ground, erects chapels, employs teachers and preachers; that that work has been carried on for many years by the plaintiff. Further the agreed statement of fact says that on or about October 2, 1903, Dr. A. G. Hart and Dr. H. A. Schauffler, as agents for plaintiff, called at the residence of Abigail L. Olney, No. 137 Jennings avenue, Cleveland, Ohio, to obtain a contribution, gift or pledge from her to help the plaintiff in its said work on East Madison avenue. They stated to her that plaintiff needed a preacher for that work, but that plaintiff had no funds with which to pay and that they could not hire a man unless they knew where the funds to pay him were coming from; that they knew of a fit and suitable man for the work — one Rev. Philip Reitinger; that he would come for a salary of $1,000 a year but would not make a contract for his services for a shorter period of time than two years; that he was a desirable man for the place, but that he had an offer of another position; also that plaintiff must employ him at once, if they desired him at all. Thereupon said Abigail Olney said that she would furnish the $2,000 needed to pay the cost of the preacher. She then and there gave them a check for $1,000 for plaintiff and said that she would give them the other $1,000 “next year” for plaintiff’s use in paying the salary of said preacher. Before the end of the year Mrs. Olney died. Plaintiff acted upon the strength of this promise of Mrs. Olney and relied upon it for the money with which to pay the cost of said preacher, and thereupon and at once and upon the same day entered into a contract with the said Rev. Philip Reitinger to employ bim as minister in the said work on East Madison avenue and to pay him the sum of $1,000 per year for two years, ending September 20, 1905. Then it goes on to state that the Rev. Philip Reitinger is performing his part of the contract that he made with them; that they would not have hired him but for the promise of Mrs. Olney, and a suit was brought against the executors of her will to recover the $1,000 to be paid next year.

The trial in the court below resulted in a verdict for the defendants, the defense being' that the promise is within the statute of frauds, Sec. 4199 R. S. (Sec. 8621 G. C.), which reads:

“No action shall be brought whereby to charge the defendant, upon any special promise, to answer for debt, default or miscarriage, of another person; nor to charge any executor or administrator upon any promise to answer damages out of his own estate; nor to charge any person upon any agreement made upon consideration of marriage, or upon any contract or sale of lands, tenements or hereditaments, or any interest in, or concerning them; nor upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.”

What was the intention here of the parties? Certainly that not later than a year from the date of the promise she would pay the second $1,000, the money sued for in this action, and she might pay it earlier if she would. It can hardly be doubted that the promisor and the promisee both understood that the second $1,000 was to be paid as early as the anniversary of the day of promise. Clearly it could be paid before, but assuming that a fair construction of the language is that the payment should be made on the first anniversary the promise would not then fall within the statute of frauds.

In the case of Cawthorn v. Cordrey, it is said:

“A contract for hiring made on the 24th of March for a year’s service, to commence on the 25th is not void by the fourth section of the statute of frauds for want of a memorandum. ’ ’

In Dixon & Co. v. Frisbee, 52 Ala., 165, the syllabus reads:

“A verbal contract entered into on the 21st day of December, 1870, whereby plaintiff agreed to serve as a clerk for defendants for a year, commencing on the day thereafter and ending on the 22d day of December, 1871, is a contract to be performed within a year and therefore not within the statute of frauds. ’ ’

In the opinion on page 166, this language is used:

“This construction is in accordance with the ordinary rule for the computation of time which excludes fractions of a day.”

In the ease of Sands v. Lyon, 18 Conn., 18, a paragraph of the syllabus reads:

“Where a testator devised land to his son B, on condition that he should pay to A $100 within one year next after the testator’s decease; the testator died on the 2d day of October, 1841; the 2d day of October, 1842, was Sunday; and B tendered the money to A on Monday, the 3d day of October, 1842; it was held: 1, that in the computation of the year within which the money was to be paid, the day of the death of the testator should be excluded; and 2, that the expiration of the year, according to that mode of computation, occurring on Sunday, the tender made on the following day was made in sufficient season. ’ ’

On page 27 this language is found in the opinion of the court:

“We do not entertain a doubt that, by the language of the testator, in the present instance, it would be generally known and understood that the payment mentioned in the devise, was to be made within a year after the day of the testator’s decease; excluding that day in the computation. * * *
‘ ‘ The money was to be paid within a specified period after his decease; and it would be generally understood, therefore, that that event must take place before the time from which the payment was to be made, is to be computed; and as the maxim' which has been mentioned, would exclude the remaining portion, after his death, of the day on which it occurred, the computation of the year must commence with the beginning of the succeeding day.”

Of course, what is said in this case as to its being a sufficient compliance to make the tender on the 3d of October because the 2d was on Sunday has no application to the ease under consideration, but the court distinctly holds that the provision of the will that the devisee should pay $100 within one year next after the testator’s decease is fully complied with by tendering payment on the first anniversary of the death of the testator.

To the same effect is the case of Weeks v. Hull, 19 Conn., 376 [50 Am. Dec. 249], The following language is used in the syllabus of this case:

‘ ‘ The day of the act from which the future time is to be ascertained, is to be excluded from the computation.
“This rule is applicable not only to contracts, wills and other instruments, but to statutes and proceedings under them. ’ ’

In the opinion in this case the court referred to Sands v. Lyon, supra, and used this language in reference to that case:

‘ ‘ This was in accordance with the acknowledged rule for the construction of mercantile contracts; and the court proceeded to say, ‘that instruments shall be so construed, if possible, as they and the rights depending upon them, shall be upheld, and not destroyed; the presumption being, that instruments are designed to be effectual, and not futile.’ This language and course of reasoning is not confined to any specified instance, but embraces every instrument or contract, as well as wills, and applies as forcibly to the construction of statutes, and all proceedings under them, as to other papers, without an allusion to any of the distinctions before mentioned. The case also recognizes another conservative principle, which ought to govern both that case and this, and all others to which it is applicable — that the computation of time should be so made as to protect a right and prevent a forfeiture, if this can be done without violating a clear intention or a positive provision.”

Brown, Statute of Frauds, p. 273, says:

‘ ‘ Setting out of view the questions, what is the performance of such an agreement, and what the meaning of the limitation as to time, we are first to ascertain the force of the words ‘tobe performed.’ And on these words much reasoning has been expended. The result seems to be that the statute does not mean to include an agreement which is simply not likely to be performed, not yet one which is simply not to be performed, within the space of a year from the making but that it means to include any agreement which by a fair and reasonable interpretation of the terms used by the parties and in view of all the circumstances existing at the time, does not admit of performance according to its language and intention, within a year from the time of its making.
“Suppose that the parties make no stipulation as to time; but the performance of the agreement depends either expressly or by reasonable implication upon the happening of a certain contingency which may occur within the year. In such case it is settled upon authority and reasonable in principle that the statute shall not apply. The agreement may be performed entirely within the year, consistently with the understanding and rights of the parties. ’ ’

We think this might consistently with the understanding and rights of the parties have been performed within a year from the date of the promise. The minister was hired on the day of the promise. She said, ‘ ‘ I will furnish you $1,000; I will give this $1,000 now, and $1,000 next year.” We think this might very well have been performed within a year without violation of the understanding of the parties, and it was therefore error on the part of the court below to enter judgment for the defendant.

The judgment is reversed.

Winch and Henry, JJ., concur.


text:
    STREET RAILWAYS
    [Cuyahoga (8th) Circuit Court,
    March 12, 1907.]
    Winch, Henry and Marvin, JJ.

       William H. Kirkbride v. Cleveland Elec. Ry.
    Operating Company Liable for Injury from Defective Appliances Installed by Lessor Company.
    A company operating a street railway under a license agreement with another company, may be liable for injuries caused by a horse becoming frightened by flashes of light from electric appliances, which are defective or improperly installed, even though they are installed by the lessor company.
    Error.
    W. G. Ong, for plaintiff in error.

      Squire, Sanders <& Dempsey, for defendant in error.

       Affirmed no opinion, Cleveland Elec. Ry. v. Kirkbride, 79 Ohio St. 448.

   MARVIN, J.

Kirkbride sued the Cleveland Elec. Ry. for injuries received to his person, as he says, by the negligent conduct of the Cleveland City Ry. and his suit against the Cleveland Elec. Ry. is because upon a taking over of the Cleveland City Ry., the former assumed all the liabilities of the latter company existing at the time the property was taken over, and he says that the liability to him existed at that time; and this is true if there was any liability to him.

On April 25, 1903, the plaintiff was driving to the west, crossing the central viaduct in the city of Cleveland. A part of this viaduct is a swinging bridge, for the purpose of allowing vessels which are too high to pass under the bridge, to pass up and down the river, when the bridge is swung open. The Cleveland City Ry. was, at the time, operating its street cars upon the tracks crossing the viaduct above mentioned, and there was necessarily a division of those tracks at each end of the swinging bridge. The motive power of the cars was electricity, which was supplied from an overhead wire or .cable along the middle line of the tracks, and this was conducted to the car by a trolley pole in the ordinary way. Necessarily there was a space at each end of the swinging bridge, between that which was upon the swinging bridge, and that which was upon the other part of the viaduct.

At the time referred to a car of the Cleveland City Ry. was moving west in the same direction that the plaintiff was driving; the head of the plaintiff’s horse about even-with the rear end of the car, but the horse and the vehicle to which it was attached, was at the right-hand side of the line of railroad. The sidewalk on the right-hand or north side of the bridge was somewhat elevated above the driveway and was so near to the northerly rail that there was but little more than room enough between this sidewalk and such rail for vehicles to be driven along that space. The plaintiff in his petition alleges that as the westerly end of the swinging bridge was reached, the trolley over the car which was going west, as it passed from the cable which was on the bridge to that which was on the viaduct west of the bridge, produced a very vivid flash of light, which frightened the plaintiff’s horse, causing him to run away and throw the plaintiff out of his wagon against an iron post, causing great injury to his person He says that this extraordinary flash of light was caused by negligence in the construction of the overhead device for carrying the electric current and communicating it to the ear, and further he charges that it was caused by the negligent operation of the car by those then in charge of it.

The defendant answered this petition with a general denial, except that it admitted that it was a corporation. Upon the trial, however, it was admitted that the defendant did take over the property of the Cleveland City Ry., at the time stated in the petition, and that it did assume all the obligations of the Cleveland City Ry. Evidence on the part of the plaintiff was introduced tending to show that there was an extraordinary flash of light, that at the instant of this flash the plaintiff’s horse became frightened and ran away and that he sustained the injuries alleged in his petition. Evidence was also introduced on the part of the plaintiff tending to show that the overhead construction was not as it should have been, and tending to show that there was negligence in the operation of the car.

On the part of the defendant evidence was introduced tending to show that at the time of the accident, the overhead device and arrangement was constructed by the present defendant and was at the time of the accident owned by the present defendant, and that under some arrangement with this defendant they were permitted to use it in the operation of their cars. Evidence was also introduced by the defendant, tending to show that the bridge would settle somewhat, perhaps four or five inches, as a car upon it neared the end of it, so that when a car was traveling from the bridge to the permanent portion of the viaduct, the track over which it was moving was several inches lower than that upon which it was to go; that there was, therefore, necessarily a jolt when the car left the bridge for the permanent portion of the structure, which was attended with considerable noise. And further, that the bridge trembled somewhat under the strain of the car as it neared the end of the bridge. The defendant contends that the frightening of the horse might be occasioned as well by the trembling of the bridge or the jolting noise of the car, as it left the bridge for the permanent portion of the viaduct, as by the extraordinary flash of light, if there was such flash.

The result of the trial in the court below was a verdict and judgment for the defendant, to reverse which this proceeding is prosecuted here.

Complaint is made of the ruling of the court upon questions of evidence, all of which have been examined and no error to the prejudice of the plaintiff found in any of them.

Complaint is further made that the court erred in its charge to the jury when it used these words:

“So that if you find it equally probable that plaintiff’s horse took fright from the noise made by a car passing off the drawbridge or by the swaying of the drawbridge, as that it was frightened by a flash of electricity, as claimed, you would not be warranted in finding that such flash was the proximate cause of the injuries complained of.”

This language is justified both by reason and authority.

Complaint is also made that the court erred in refusing to charge the several propositions requested by the plaintiff.

The first of these requests reads:

“If wires charged with currents of electricity were by the Cleveland Elec. Ry. placed in the public streets and highways or suspended above them as a motor power for operating its street ears the danger was great, and the care exercised in the construction, maintenance and operation of its ears by electricity must be proportionate to the dangers in the use of same. In the use of electricity in such public places reasonable or ordinary care is great care.”

Numerous authorities are cited in support of this proposition, but we think, in view of what was said by the court in its charge to the jury, the defendant was not prejudiced by the refusal to give this charge.

The court said, as appears on page 207 of the bill of exceptions :

‘ ‘ I say to you that said company in operating its cars across the viaduct was bound to exercise that reasonable care and caution to prevent injuries to others which persons of ordinary prudence, engaged in that or a like business are. accustomed to exercise under the same or similar circumstances, having under the same or similar circumstances, regard to the instrumentalities employed and the dangers reasonably to be apprehended therefrom.”

We think this also covers properly what was asked for by the second and third and fourth requests of the plaintiff. The fifth request reads:

“A street car company is not liable for accidents arising from fright to horses caused by the usual and careful operation of its road if its employees such as motormen and conductors are free from negligence, and that negligence must be determined by the jury from all the facts and circumstances in the case. ’ ’

Surely there was no prejudice to the plaintiff in refusing this. If anybody was prejudiced by it, it would be the defendant and not the plaintiff.

Complaint is further made of portions of the charge, which have the effect of relieving the defendant from liability because of any faulty construction of the overhead appliances. A number of passages in the charge do give such instruction. Among other things the court said, as appears upon page 210 of the bill of exceptions:

‘ ‘ If, from consideration of all the facts and circumstances as you find them to be from the testimony, the jury deem it equally probable that the injuries complained of were caused by the negligence of the Cleveland City Ry. through the motorman in charge of the car in question, as claimed, or that such injuries were' caused in some other way, as for example, by the negligence of some other person or company, you would not be warranted in finding that it was proved by the preponderance of the testimony that the Cleveland City Ry. was thus negligent. ”

In another part of the charge the court said:

“You will observe that in the petition no negligence is charged against the defendant, the Cleveland Elec. Ry. directly, and consequently no recovery can be had by reason of any negligence of that company, even though you find it was negligent.”

Now the only negligence that could have been claimed against the Cleveland Electric Ry. under the pleadings in this case was upon the ground that there was faulty construction in the overhead appliances.

The defendant says, if there was such faulty construction that faulty construction was its own negligence, that is the negligence of the defendant, because it says it constructed these overhead appliances and that as recovery here is only sought against the defendant because it has been substituted on account of its contract with the Cleveland City Ey. for such last named company. That is to say, the court charged upon the assumption that though the Cleveland City Ey. may have been operating at the time with defective appliances overhead, and though the cause of the injury complained of may have been through the use of such defective appliances still the plaintiff could have no recovery. In this we think there was error.

Suppose instead of the Cleveland Elec. Ey. having constructed these overhead devices which were being used by the Cleveland City Ey. at the time of the accident, it had been some stranger to these proceedings. Suppose John Doe had constructed these devices and appliances and the Cleveland City Ey. were the ones who had used them; suppose these appliances to have been entirely unsuitable, and to use them had been negligence, it surely would not relieve the Cleveland City Ry. from liability for an injury caused, because of these improper devices and appliances. See Jacobs v. Fuller, 67 Ohio St., 70 [65 N. E. 617]; Covington & C. Bridge Co. v. Steinbrock, 61 Ohio St. 215 [55 N. E. 618; 76 Am. St. 375].

Surely the Cleveland Elec. Ey. because it assumed the liabilities of the Cleveland City Ey. would be no less liable for the negligent acts of the last named company, because those negligent acts consisted in using -a defective device constructed by the Cleveland Elec. Ey.., than in using a defective device constructed by John Doe. Not only is this so, but the court assumed in its charge that it was established or conceded that the construction of the overhead devices, whether suitable or unsuitable, were put up, and at the time of the accident owned by the Cleveland Elec. Ey. ¥e find no such admission in the record.

Evidence was introduced tending to show this, and no evidence tending to disprove it, but it was for the jury and not for the court to say whether the fact was so or not. Gannon v. Gas Co., 145 Mo. 502 [46 S. W. 1133].

From what has been said here the court erred in giving in charge to the jury the. fourth, fifth, seventh, thirteenth, fourteenth and fifteenth requests of the defendant. As illustrative of these several requests the thirteenth is here quoted. It reads:

‘ ‘ 13th. If the jury finds it to be equally reasonable that the flash, if one occurred, was caused alone by the negligent construction or repair of the trolley wire, as by the negligent operation of the car, there can be no recovery by the plaintiff in this ease.”

The fifth and sixth requests read as follows:

“5th. * * * The plaintiff is entitled to have the jury determine the credibility of the testimony offered, even though he offer nothing to contradict that presented by defendant. Nor can the court assume as a matter of law that the testimony is true, satisfactory or convincing to the jury, simply because no one by words contradicted what has been uttered.
‘ ‘ 6th. Before proof can be said to be made of any fact there must be both the testimony of a witness or witnesses, and the acceptance of that testimony as true by the jury. Uncontradicted testimony can not be treated as conceded facts. ’ ’

As to the application of the doctrine of res ipsa loqmtor to this case see Marsh v. Lake Shore Elec. Ry. 28 O. C. C. 9 (7 N. S. 405).

For the errors pointed out the judgment is reversed and the cause remanded.

Winch and Henry, JJ., concur.


text:
    CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    March 7, 1904.]
    Hale, Marvin and Winch, JJ., Concur.
    W. H. Roher et al. v. Peoples Savings Bank et al.
    1. Enforcement of Liability of Stockholders in Foreign Corporation.
    Ohio courts have jurisdiction in an action brought against resident stockholders to'enforce stockholders’ statutory liability in a foreign corporation.
    2. Court will not Determine Solvency of Nonresident Stockholders.
    A court can not pass upon the solvency of stockholders who are not before it, and the amount stockholders in court will be required to pay will be based upon the assumption that all stockholders are solvent.
    3. Creditors Bound by Terms of Certificate Taken in Settlement.
    Creditors of an insolvent bank who, in order to allow it to resume business, agree to accept certificates of deposit calling for interest, but accept certificates which do not provide for interest, are bound by the terms of the certificates accepted.

      Brewer, Cook & McGowan and Bentley & Vickery, for plaintiffs.

      Squire, Sanders <& Dempsey and Henderson <& Quail, for defendants.
   MARVIN, J.

The defendant, the Peoples Savings Bank, is an insolvent corporation, organized under the laws of the state of Colorado, and until its insolvency carried on a banking business in that state. The plaintiffs are creditors of said corporation and bring the suit in behalf of themselves and all other creditors of said corporation,

The capital stock of said corporation is $100,000, all of which was issued and paid for.

A large part of the stockholders of said corporation reside in the state of Colorado, some in other states, and the defendants, N. O, Stone, Frank S. Henry, F'. A. Sterling, Joseph Pinkett and Anthony W. Gibbons, as administrator of the estate of Joseph Gibbons, deceased,. are stockholders in said corporation and reside in the state of Ohio. The defendant corporation has not entered an appearance here and is not under the jurisdiction of the court. The defendant stockholders hereinbefore named are all before the court.

Under the laws of the state of Colorado, stockholders in corporations are liable to the creditors of such corporations in an amount equal to 200% of the stock held by each.

On July 17, 1893, this corporation being in financial difficulties, made, a, general assignment for the benefit of its creditors.

Thereafter the stockholders made an agreement among •themselves that they would pay into a common fund 100% of their holdings of stock, to be used in the payment of the corporation’s debts, which should thereupon resume business, the balance of indebtedness being provided for by certificates of deposit to be issued to the several creditors. To this the creditors consented, and $82,000 was paid -in by the stockholders under this agreement. The assets were turned over by the assignee to the corporation, the money thus paid in was used toward the payment of the indebtedness, and the balance of the indebtedness was provided for by the issuing of the certificates of deposit hereinbefore mentioned, and the bank resumed the transaction of business on May 28, 1894. Certificates of deposit were issued to the several creditors for the amount owing to each. These certificates were dated May 28, 1894, and each creditor received five of them, each being for one-fifth of the amount owing to the creditor to whom they were issued. These certificates were made payable at different dates. The two first falling due to each, creditor were paid at maturity.

On June 29, 1895, the corporation, finding itself unable to carry on its business, again made a general assignment for the benefit of its creditors. At the time of this last assignment the indebtedness of the bank was $200,407.31 and was all represented by the remaining certificates of deposit, that is, three to each creditor. The first of the certificates so rmaining unpaid was due July 1, 1895; the second, January 1, 1896, and the third, July 1, 1896; an equal amount, $66,802.44, falling due at each of said dates. The several certificates were alike in form and each, except as to amount and name of the depositor, read:

“The Peoples Savings Bank,
“$10.84. Denver, Colo., May 28,1894.
“Frank H. Yogt has deposited in this Bank ten 84/100 dollars payable to the order of self, in current funds on return of this certificate properly endorsed.
“D. D. Muir,
“V. P. & Cashier.”

On the first one-third of these certificates was an endorsement reading:

‘ ‘ This certificate is hereby made payable July 1, 1895, with interest at the rate of 5% per annum until maturity or until called in prior thereto. No interest after maturity.”

On the second one-third was the same endorsement except that the date of maturity was January 1, 1896; and on the remaining one-third was the same endorsement except that the maturity was fixed at July 1, 1896. Upon these certificates the assignee has made payments as follows: December 20, 1900, 40%; November 26, 1901, 10%; December 22, 1902, 8%; making in the aggregate a payment of 58% of the principal of the indebtedness. The assets of the corporation have been exhausted in making these payments, except that a suit is now pending in the Supreme Court of the United States on which something may be realized for this corporation. As to this suit it may be said that the creditors of the corporation are not required to wait until the determination of this suit before proceeding against the stockholders for their part.

. The question of the jurisdiction of this court was raised by demurrer to the petition, and we held that we had jurisdiction over the defendants residing in Ohio. We adhere to our holding made on the demurrer without further discussion of the question.

From what has been said, it appears that if all the stockholders of the corporation are solvent there is a fund amounting to $118,000 available for the payment of the creditors, this being made up of $18,000 not paid in under the agreement by which the bank was to resume business and $100,000 being the amount for which the stockholders would have been liable if the original $100,000 provided for in the agreement to resume had all been paid in. The indebtedness of the corporation is the balance due upon these certificates after deducting therefrom the 58% paid by the assignee, as hereinbefore set out.

Under the resumption agreement it was provided that the certificates of deposit to be issued to the creditors should draw interest at the rate of five per cent, per annum payable semiannually from September 1, 1893, until paid. It will be noticed that the certificates issued did not conform to this agreement in that there is no provision for the semi-annual payment of interest, nor is interest to begin September 1, 1893, but at the date of the certificate as shown by the endorsement, and interest to cease at the maturity of the certificate, or at such earlier time as the certificate should be called in by the corporation. The creditors accepted the certificates as they were issued and to that extent waived the provisions made in the resumption agreement, so that whatever rights the creditors have is such as is shown by the certificates held by them.

On the part of the plaintiffs it is urged that the provision endorsed on the several certificates in the words, “No interest after maturity, ’ ’ can not be held to deprive the holders of these certificates of interest after such maturity because of the fact that at the time when these several unpaid certificates matured the assets of the corporation were in the hands of an assignee for the benefit of creditors and the certificates could not then be paid. It is said that it is clear that the purpose of this endorsement was to induce the holders of the certificates to present them promptly for payment and that if when they had been presented for payment the corporation had failed, to pay, that interest would be allowed to the certificate holder; that to now say that in order to entitle the holder of the certificate to draw interest, he should show that he did present a certificate at maturity and demand payment would be to require of him a vain thing since it is certain that a presentation and demand would have availed nothing, as the corporation had no assets in its hands with which to pay. While this question of interest is not free from doubt, we hold that the creditors are bound by this endorsement, and are therefore entitled to be paid only the amount due upon their several certificates at maturity.

It was sought on the hearing to show that a considerable number of stockholders residing outside of Ohio and who are not parties to this proceeding are insolvent. We hold that we are without jurisdiction to determine the solvency or insolvency of stockholders not before the court; but even if we have the jurisdiction, the evidence is not such as to establish such insolvency as to any of such stockholders.

If interest were allowed by us upon these certificates after maturity, even though all the stockholders are solvent, the result would be that the defendants who are before the court would each be required to pay 100% upon the stock held by him (each of such defendants having paid under the resumption agreement 100% of such stock), therefore if we were to hold all of the stockholders to be insolvent whose insolvency was sought to be shown in this proceeding, it is probable that each of the defendants now before the court would be required to pay 100% of the stock held by him and hence no further computation would be necessary, but holding as we do, that we must dispose of this case as though all of the stockholders were solvent, and that the indebtedness represented by these certificates draws no interest after the maturity of the several certificates, it follows that less than 100% will be required of these stockholders. A computation shows that the unpaid certificates with interest to maturity would be as follows:

The interest on those falling due on July 1, 1895, is $3,-646.30; on those falling due on January 1, 1896, $5,316.36; and on those falling due July 1, 1896, $6,986.43, making the aggregate1 indebtedness upon these certificates, if nothing had been paid thereon, $216,356.41. The aggregate of payments made by the assignee is $116,236.23, leaving to be paid by the stockholders, $100,120.18. As already said, the amount available for this payment, treating all the stockholders as solvent, is $118,000, and would require from each about 84.8% of the amount of his stock.

The fact that some of the stockholders have already paid the amount of their liability and thereby reduced the actual indebtedness is not considered here because that would not affect the stockholders who have not paid. Upon the basis herein indicated, the defendants who are before the court are liable in this action, and judgment will be entered accordingly.

Hale and Winch, JJ., concur.


author: MARVIN, J..

text:
    CHARGE TO JURY — CONTRACTS—TRIAL
    [Cuyahoga (8th) Circuit Court,-
    October 29, 1906.]
    Marvin, Winch and Henry, JJ.
    Frances H. Keiper v. Edwin Selfe.
    1. Right of Parties to Instructions before Argument.
    Either party has the right to have instructions given to the jury before argument, provided they are proper under the law applicable to the case, and giving substantially the instructions asked for after argument does not cure the error of refusing them before argument.
    2. Necessary Evidence to- Prove Waiver of Condition of Building Contract Relative to Extras.
    When a condition in a building contract provides that the owner shall not be liable for extras or for work not provided for in the contract unless the changes in the plans are indorsed upon the back of the contract, the plaintiff can not recover for such extras or for labor outside of the contract, without proving by clear and convincing evidence that the owner waived the condition.
    3. Interpretation of Written Contract is for Court.
    Interpretation of a written contract is for the court, and when an issue is made as to whether or not certain items are provided for in a written building contract or a certain notice required, it was error for the court to instruct the jury to determine those facts from an inspection of the contract.
    Error.
   MARVIN, J..

Suit was brought by Selfe against Frances H. Keiper and her husband, William Keiper, to recover for a balance claimed to be due to said Selfe, hereinafter spoken of as the plaintiff, upon a written contract entered into between said plaintiff and Frances H. Keiper, hereinafter spoken of as defendant, for furnishing materials and erecting a house by said plaintiff for defendant. The petition also claimed a judgment for certain labor and materials, which the plaintiff claimed as due for charges made in the contract involving additional expenses, and for certain labor and materials claimed as extras. Upon the trial the jury found for the plaintiff against the defendant Frances, and judgment was rendered against her. No judgment was rendered against ^William Keiper, and nothing further need be said about him.

The defendant answered the petition of the plaintiff, quoting a provision of the contract as to charges and extras; setting up that she had paid $25 for hardware, which she says by the terms of the contract she was to be credited with, but for which she says no credit was given, and says plaintiff is not entitled to recover for extras because he has not brought himself within the provisions of the contract.

She then sets up by way of cross-petition and as a counterclaim a failure on the part of the plaintiff to perform fully his contract in certain specified particulars, and she prays judgment against the plaintiff in the sum of $200 by reason of such counter-claim.

Mrs. Keiper prosecutes error to the judgment against her.

A bill of exceptions is filed here with all the evidence given or offered at the trial, together with the other proceedings in the case.

The verdict of the jury is against the defendant in the sum of $149.59, and then these words follow: “And we do find that there is due the defendant upon the cross-petition the sum of no dollars. We therefore find for plaintiff and assess his damages at $149.59.”

In its instructions to the jury, at the close of the charge as to the manner of preparing the verdict, the court said:

“Taking into consideration all o£ the evidence, you will find out what in your judgment he is entitled to, if he is entitled to anything at all, and you will compute interest upon the same thus found from September 1st up to the first day of April of this year. You will then ascertain what sum, if any, is due the defendant on her cross-petition and your verdict will state what it may be. The form of verdict is this:. ‘We the jury in this case, being duly empaneled and sworn, do find for the plaintiff against the defendant, Frances H. Keiper, and assess his damages by reason of the promises at blank dollars, and we find that there is due the defendant upon her cross-petition the sum of blank dollars. We therefore find for blank and assess blank damages at blank dollars.’ ”

Assuming as we must that the jury understood this instruction, it would seem from the verdict that the amount found for the plaintiff was without any deduction on account of failure to perform the contract, because such failure was set up as a counter-claim, and the jury found that on account thereof the defendant is entitled to “No dollars.”

Since the amount found for the plaintiff is not above the balance claimed by him on the contract and is almost exactly what he claimed thereon with interest to the first day of the term at which the case was tried, it is urged by the plaintiff that we should asume that nothing was allowed him for extras or charges and that, therefore, whether there were errors or not in the charge or any refusal to charge on the matter of such extras and changes, no prejudice could have resulted to the defendant, and therefore the judgment should be permitted to stand. Were it not for the dispute of $25 for hardware this would have weight, but with this dispute we can not say but that the jury allowed plaintiff something for extras, and charged him with not having credited the $25 and so reached the verdict rendered. If this was done, it becomes necessary to determine whether the charge of the court was right on such extras and charges, and whether the court erred in refusing to charge as requested by the defendant.

The court was requested in writing by the defendant to give certain propositions to the jury before argument. The court declined to give such instructions before argument, saying:

“I do not deem it necessary to read these requests at the present time, for the reason that in my judgment they “will be substantially taken care of in my charge to the jury when the time comes.”

By Sec. 5190 R. S. (Sec. 11447 G. C.) either party has the right to have instructions given before argument, provided they be proper under the law and applicable to the case. See Cleveland & E. Elec. Ry. v. Hawkins, 64 Ohio St. 391 [60 N. E. 558]; Monroeville v. Root, 54 Ohio St. 523 [44 N. E. 237],

We must then consider the requests made. The bill reads:

“Whereupon counsel for defendant presented to the court the following written requests, and asked the court to give them before argument:
“1st. The jury is instructed to return a verdict for the defendant, William F. Keiper, for the reason that there has been no evidence offered by the plaintiff tending to show that the contract or claim sued upon was the contract of said William F. Keiper.”

An examination of the evidence will show that that proposition was clearly true, but as the jury found no verdict against Keiper he is making no complaint, and the case would not be reversed because of failure to give that proposition to the jury.

“2d. The specifications which were a part of the contract under which the work was performed, forming the subject-matter of this action, contains the clause: ‘should any extra work or changes of the plan be required whereby any cost may be increased or diminished, all such changes must be determined and agreed upon before the change is made, and the amount, whether an increase or a decrease in cost, must be endorsed upon the back of the contract.”

That is the quotation from the contract itself, and then fol-. lows the following:

“No recovery can be had by the plaintiff for any extra work unless the jury finds that the above written provision has been waived by the defendant, Frances Keiper. The burden of establishing the proof of such waiver is upon the plaintiff, and such proof in order to entitle the plaintiff to recover, must be clear and convincing. Clear and convincing proof is more than the mere preponderance of the evidence, and such preponderance must be of such character as to make the proof clear and convincing.”

It seems that with the grounds as well established as they are in Ohio, that in order to establish a change in a written contract proof must be clear and convincing, and that the contract under consideration, having the provisions which have been read, that there can be no doubt that that proposition should have been given to the jury. In the consideration of the case on the question as to extra work the proof must be such as is required in the change of the contract; but upon a careful examination of the language of the contract the parties agreed that the extras should come under the same provision as change in the contract. “Should any extra work or changes of the plan be required,” etc., “the same must be endorsed upon the back of the contract.”

That proposition is a clear statement of the law applicable to the ease and should have been given, and to refuse to give it, if it stood alone, would have been error for which the defendant below would be entitled to have the judgment reversed. But it is said that it is one of a series of propositions, and unless the entire series had been given that there was no error in refusing to charge. However that may be, we think the next proposition is equally a clear statement of the law applicable to the case, and therefore the several propositions, and each of them, should have been given, and that therefore no reversal could be had on the first if it stood on that alone.

The third proposition requested to be charged reads:

“If the jury finds that the plaintiff has fairly endeavored to perform his contract, and has in fact substantially performed it, and if the jury further find that the defendant Frances Keiper has sustained any damages by reason of the failure of said plaintiff to strictly comply with his building contract, then in that event the plaintiff may recover the contract price for the work, less the amount of damages the owner may have sustained by reason of the failure of the plaintiff to strictly comply with said agreement.”

As already said, it seems clear that that proposition was a proper statement of the law applicable to the case. It can hardly be doubted that each proposition here requested to be given was an accurate statement of the law and that it was applicable to the case on trial.

As to the first question, since it affected only the differences between the plaintiff and William Keiper, and no verdict was returned against the latter, it is obvious that no prejudice was to Frances on account of its refusal, but as to the others, they had a direct bearing upon the question at issue between the parties in this error proceeding, and the defendant was entitled to have them given before argument.

Indeed the-court seems to have understood them to contain a true statement of propositions of law applicable to the case, from what was said in the general charge, but seemed to have aetéd upon the idea that if they were given, and correctly stated in the general charge, it relieved him from giving them before argument. The statute already referred to says otherwise. And the cases already cited show that the Supreme Court has held that where the propositions are requested in writing to be given before argument, they must be given before argument; and the error committed in refusing to give before argument will not be correctly so by giving the propositions in the general charge. It was, therefore, error in refusing to give these propositions, and for that error judgment must be reversed.

Again complaint is made of the charge given. It is said it is misleading; and the clause is referred to in which the court said, “It is also the policy of the law that the parties shall be held to as strict an execution of their contracts as possible.” This clause taken alone might mislead, because one may not be excused from liability on his contract for want of ability on his part to comply with it. One must perform his contract in order to recover upon it. True, there may be some matter of so little consequence omitted that it would not affect anything of substance, and the contract be held to have been performed. However, the court said later in the charge on the subject of substantial performance, what would probably take away the misleading character of the clause quoted, and the case would not be reversed for this language in the charge alone.

On page 221 in its general charge, the court used this language :

“What do you say, gentlemen? Did the written contract include the superintendency by the plaintiff of the plumbing for which he asks judgment for $25.50 or was that plumbing for which he asks judgment a separate and distinct contract between the parties on that subject, and is the evidence upon that subject clear and convincing?”

Clear and convincing in what way? In order to change the contract it must be clear and convincing; but to have it fall within the contract it is not required that the evidence- be clear and convincing. Still the court in its language did not explain to the jury as to which way the evidence was to be clear and convincing. That language might mislead the jury.

But there is another infirmity in this charge, and that is that it asks the jury to look at a written contract covering many pages, a large part of it in print, and from that determine for themselves whether the contract required the superintending of this plumbing. The court should have examined that contract and in explaining the meaning of it should have said to the jury what is or is not a part of the things which plaintiff undertook to do.

There is the same infirmity with reference to other charges made. “What do you say, gentlemen, as to the mantel and the bridge work in the attic and for all those things for which compensation is asked for by the plaintiff ? ’ ’

The court should have construed that contract and not asked the jury to.

Again the court said to the jury “that under the terms of the written contract he was entitled to three days notice in writing of any dissatisfaction on the part of the defendant with the work or material used in the construction of said house and that said notice in writing was not given him. I say to you now, that if you find from the evidence such to have been the case, then the defendant could not recover damages as claimed by her unless you also find that such provision in said contract and specifications was waived by both parties, and on this subject the proof must likewise be clear and convincing.”

Clear and convincing how? Clear and convincing that there was á contract or clear and convincing that the contract required three days’ notice? The court should have examined the contract and determined whether or not three days’ notice was a part, that plaintiff was entitled to three days’ notice, and upon reading it the court should have said to the jury, that for the defects claimed here by this evidence of things discovered long after the plaintiff had turned the job over to the defendant, he was not entitled to three days’ notice. That should have not been left to the jury.

Again in another part of the charge as to the claim for extras, the court said to the jury. “You will look, to the evidence and find what work and material the written contract and specifications called for.” The court should have looked to the contract and told the jury what was called for.

The court is asked to take certain evidence front the jury; and that was evidence in relation to conversations had prior to the execution of the written contract, and referred to superintending plumbing. That evidence should have been taken from the jury, for the claim is made on the part of the plaintiff that this was for a change made after the contract was made. The contract did embody what the parties agreed to.

The charge then in various particulars is misleading; the refusal to charge as requested was erroneous, and the failure to take the evidence from the jury as to conversations about this plumbing before the contract was made was erroneous to the prejudice of plaintiff in error, and although it is with regret that we reverse this we are inclined to think that perhaps the true result was reached, but it is not clear that that is so, and it may be that the jury made a mistake.

The case will be reversed and remanded to the court of common pleas for trial.

Winch and Henry, JJ.


author: HENRY, J.

text:
    NEW TRIAL
    [Cuyahoga (8th) Circuit Court,
    February 11, 1907.]
    Winch, Henry and Marvin, JJ.
    B. Schatzinger v. Nellie W. Boyd.
    New Trial Granted when Verdict of Jury Inconsistent.
    When in an action upon a building contract plaintiff asks judgment for money spent in completing a building after defendant had abandoned his contract, and defendant in a cross-petition asks for judgment for money spent by him under a contract which he alleges was made but which was entirely different from that alleged by the plaintiff to have been made between the parties, the jury having returned a verdict in favor of plaintiff for an amount in excess of that claimed by him, and for the defendant for the amount he claimed, the verdicts of the jury are so inconsistent as to indicate that they did not comprehend the issues and a new trial will be granted.
    Error.
   HENRY, J.

The defendant in error was plaintiff below, where she recovered a verdict and judgment for $1,167.28 on a building contract.

The facts as claimed by the plaintiff below are, that she and her husband negotiated with the plaintiff in error, B. Schatzinger, for the erection of a house on a lot previously purchased by her in Schatzinger’s Superior Park allotment, same to be erected by Schatzinger. On the day when the final payment toward the purchase price of the lot was made, the plaintiff below, Mrs. Boyd, paid $550 additional to Schatzinger to apply upon the construction of said house. At the same time, Mrs. Boyd’s husband claims to have dictated to Schatzinger’s stenographer a contract which, though it was never written out, he reproduces from memory in his testimony as follows:

“This agreement made this 1st day of November, A. D. 1902, by and between Nell W. Boyd a party of the first part and Bernard Schatzinger party of the second part, witnesseth, that for and in consideration of a sum not to exceed $4,000 the receipt of $675 of which is hereby acknowledged, the said party of the second part agrees to build and erect a residence on lots 37 and 36, Superior Park Allotment, as per plans and speeifications prepared by the. Kauffman Architectural Company, which are hereby made a part of this contract. The balance of the payments to be secured by a first mortgage to said Bernard Sehatzinger. The building to be completed as per plans and specifications on or before January 1st, 1903.
“That on the faithful completion of the work as above specified the said party of the first part is to execute to the party of the second part a mortgage in a sum not to exceed $3,325, with interest at the rate of five per cent, per annum for a term of five years. In witness whereof we have hereunto put our hands and seals this first day of-November, 1902.”

On cross-examination he repeats the Same contract, with some verbal variations, and says, “there is another thing in that contract that was not spoken of this morning that was particularly spoken of at the time. ’ ’ This omission he supplies, as follows:

“The grading and payments are included in the above sum. ’ ’

After dictating this contract in the presence of his wife and Sehatzinger, he left Sehatzinger’s office. His wife remained to sign the contract when it should be typewritten, and she did stay there until a document was produced for her to sign, which she supposed to be the contract in question. She accordingly signed it and left. Afterwards it proved that what she signed was an application for a loan. Such at least, is the version of this transaction as given by Mr. and Mrs. Boyd. Sehatzinger and his stenographer deny all knowledge of any such contract having been made on that date. Sehatzinger claims that he made a contract, which some two months later was reduced to writing, but dated back at Mr. Boyd’s request.

This contract was as follows:

‘ ‘ Building Contract.
“This agreement is made, and entered into this nineteenth day of November, A. D. 1902, by and between Nellie W. Boyd and B. Sehatzinger.
“Whereas, said Nellie W. Boyd owns Lot No. 37 and the northerly half of Lot No. 36, in Superior Park, and is desirous of having a dwelling house built on same and B. Sehatzinger being a builder and engaged in putting up buildings,
“Now Therefore, it is agreed by and between the above parties that said B. Sehatzinger shall have a dwelling house erected on said premises, but said Nellie W. Boyd is to furnish the plans for same.
“Said B. Sehatzinger is hereby authorized and instructed to contract for labor and material for said dwelling house to the extent of four thousand dollars ($4,000) and said Nellie W. Boyd agrees to pay for said labor and material as bills therefore mature.
“ It is further mutually agreed that no profit will be charged on any labor or material contracted for on said dwelling house by said B. Sehatzinger, but that the same is a matter of accommodation.
“It is further mutually agreed that said B. Sehatzinger will procure a first mortgage loan on said property upon the completion of the building and the' improvements upon the lot for not more than thirty-five hundred dollars ($3,500) and at a rate of interest not more than six per cent, per annum.
“Nellie W. Boyd,
“By Court Boyd,
“B. SCHATZINGER.”

This document was actually signed December 27, 1902, but apparently without any express authority having been given by Mrs. Boyd to her husband thus to sign her name.

Mr. Boyd explains this transaction, as follows: He says he went to Sehatzinger’s office December 26, 1902, and asked him for a copy of the contract. Sehatzinger said there was no contract written. I asked him what had become of the contract I dictated that day, the contract that my wife signed. He said my wife had never signed a contract in his office. I asked him what she had signed, and he said she had signed an application for a loan. I said that I thought he was playing a very mean game to try to take advantage of us and back out of the contract, on which he had received the money.

He said he would rectify that and he would go ahead and complete the house and he would get the money to do it.

I said that is all we want, we simply want the contract carried out. He said that he was sorry he could not get the money and that he would make, other arrangements to get it. That is what he said. I asked him why the contract had not been signed; the one that I dictated and the one that we paid him the money on, and he said he did not think it was a proper contract to sign.

On the following day Schatzinger brought to Boyd the document last above quoted, and said he would like to have that signed so that they could take it up with Mr. Creer to get the money and go ahead with the building. That was what he said. He brought in that statement; he brought in this contract; my wife was not at home, and had not been in the city since December 1. He asked me to sign that contract and we would go up to see Mr. Creer at the Cleveland Loan Co. I signed the contract with him and we went up to see Mr. Creer to get the money to complete the house.

They failed to negotiate a loan at that time on terms satisfactory to Mr. Boyd, whereupon he said to Mr. Schatzinger'that “I thought he was trying to beat me and I did not want anything further to do with him; that he would either carry out the original contract that was made, or that I would go ahead and complete the building, which I did.”

Prior to this time the building had been for two months in the course of erecting with money supplied by Schatzinger, from the $550 advanced by Mrs. Boyd, and when that was exhausted, out of his own pocket to the extent of $554.78 additional.

Mr. Boyd having failed or declined to provide further money as bills matured, Schatzinger declined and dropped the matter, and the Boyds went ahead and completed the building substantially in accordance with specifications made by the Kauffman Architectural Company. This company was closely connected with Schatzinger in business, and had its office on Schatzinger’s allotment. Schatzinger introduced the Boyds to the architect who prepared the plans and specifications and who had more or less to do thereafter with overseeing the construction of the house.

After the completion of the house Mrs. Boyd filed her petition alleging that she had paid out altogether $5,406.78 and for the excess over $4,000 named in the first contract she asked judgment. Attached to her petition is an itemized list of expenditures, which is not, however, so itemized as to check up with the vouchers which were afterwards introduced in evidence. The answer filed by Schatzinger denied that he had entered into the contract set forth in the petition, but admitted that he had entered into a verbal contract prior thereto, which was after-wards embodied in the document which Boyd signed on behalf of his wife. Schatzinger admits that under this verbal contract he began the construction of the house and continued the same until the refusal and failure of the plaintiff to furnish him any more money. In the second and third causes of action he sets up the $554.78 advanced by him and a mechanic’s lien which he perfected to secure the same, and asks a judgment and decree thereon.

In Mrs. Boyd’s reply she admits her husband was looking after the erection of the house mentionéd in the answer; denies defendant’s version of the verbal contract and denies that the said paper writing purporting to be a contract, which the said defendant sets up in his answer and cross-petition, was ever signed or agreed to by her, and that' the same ever became a contract between said parties. She says that after the said verbal contract was entered into as set up in her petition, this plaintiff urged the said defendant to put the original contract in writing, which he agreed to do and thereupon wrote the paper which he claims to be a contract and which he has set up in his answer and sent it to her, at which time her husband, James Court Boyd, in order to submit it to his counsel signed in pencil the name of this plaintiff in order to show counsel a completed contract and to ask his opinion about it before agreeing to it.

Upon the advice of said counsel the said proposed draft of a contract was rejected, and that the said Boyd carried said contract into the office of said defendant and told him that that was not the contract that was made with the defendant, and that he would not agree to the terms as specified in said proposed draft of a contract as it did not conform to the original agreement. After some further conversation with the defendant, who told the said Boyd to draw a cohtract to suit himself, the said Boyd left the office of the defendant and inadvertently left the said proposed draft of contract on the desk of said defendant and that he afterward carried a proposed contract in writing to the defendant which, conformed to the agreement as originally made which the defendant never signed or returned to this plaintiff.

This plaintiff therefore denies that she or anybody for her ever made, a contract as set up in the answer and cross-petition of the defendant, and she denies that any part of the work done on said house was done under said contract, and she denies that any payments were ever made upon said contract.

It will be observed that this version of the transaction of December 27, 1902, between Schatzinger and Boyd is quite different from the version given by Mr. Boyd on the witness stand, and we think it extremely improbable that any business man of experience' would have entered into so loose a contract as the Boyds claim was assented to by Schatzinger verbally November 1, 1902.

The jury having found otherwise upon this issue, we would not, however, disturb the verdict on that ground. But it is perfectly evident that the jury had no proper conception of what their verdict should be in the premises.

The petition prayed judgment for $1,406.78, which, with interest to the first day of the term at which the verdict was returned, could have amounted at the most to but $1,652.96. The verdict for plaintiff, is, however, including- interest, $1,820.86. • They also returned a verdict for the defendant, on his counterclaim for $652.58, which is substantially the amount of the $554.78 paid by Schatzinger out of his own pocket, together with interest.

Upon the issues joined, a verdict for one party was utterly inconsistent with a verdict for the other. If the plaintiff'was entitled to recover at all it was for the amount paid by her in excess of the contract price of $4,000 and no more. In that event the defendant would be entitled to nothing, because whatever he had paid out of his own pocket over and above the contract price of $4,000 should have been paid by him anyhow.

On the other hand, if the defendant was entitled to any verdict, it could only be upon the theory that it was for moneys advanced by him and for which he was entitled to be reimbursed by Mrs. Boyd. It may be said, however, that the net result of these erroneous verdicts is to give the plaintiff, including interest, the sum of $1,167.28, or exclusive of $992.43, which is $413.35 less than the amount claimed in her petition. If we could reconcile this result with the conclusions which are reached as to the rights of the parties, from our examination of the contract claimed by the plaintiff below, the plans and specifications referred to therein ■ and the proof as to payments made, we should not allow the mere informality of the verdict to invalidate it. But our examination shows that gas fixtures, decorating, electric light wiring, mantels, extra painting, extra coal, interest on loan, cost of abstract of title, parquetry flooring, commission on loan, finishing of the attic, lighting fixtures and other items not mentioned in the contract or specifications nor depicted in the plans of the house, should have been deducted from the expenses. These deductions exceed by considerable the deduction which seems actually to have been made by the jury-

This perhaps might be rectified by a remittitur if it were possible from the bill of exceptions to arrive definitely at the amount to be remitted.

We are unable, after a good deal of effort in this direction, to unravel the mazes of the accounts submitted in the pleadings, evidence and briefs, so as to arrive at a satisfactory result along this line. It would require the combined services of a builder or architect and an expert accountant to solve the question. We doubt if the jury could have found from the evidence just how much the plaintiff was entitled to, although we are certain that they found more than the plaintiff was entitled to.

Because of the jury’s seeming lack of comprehension of the manner in which they should return their verdict and the manifest irregularities in the verdict as returned, we incline to the opinion that the jury did .not give this case proper consideration, and we, therefore, reverse the judgment below and remand the case for a new trial.

Winch and Marvin, J J., concur..


author: WINCH, J.

text:
    BILLS AND NOTES — CONTRACTS
    [Cuyahoga (8th) Circuit Court,
    February 23, 1903.]
    Hale, Marvin and Winch, JJ.

       Western Mineral Wool & Ins. Fibre Co. v. Illinois Steel Co.
    Evidence not Received to Show Parol Collateral Contract to Action on Promissory Note Based on Written Contract.
    When a settlement of claims for rent and other matters growing out of the terms of a lease, containing a provision for the removal by the lessee of buildings and machinery especially adapted for the manufacture of mineral wool by a patented process owned by the lessee, was made by the lessee giving the lessor a promissory note and a conveyance of said buildings and machinery and the terms and conditions of said settlement were evidenced by a contract in writing; in an action on the note between the original parties evidence will not be received that at the time said written contract was enterd into, a parol agreement was made between' the parties that the lessor should not use said buildings and machinery for the manufacture of mineral wool by said patented process.
    Error.

      Hessenmueller & Bemis and J. J. Hogan, for plaintiff in error.

      M. B. & H. H. Johnson, for defendant in error. ’

      Affirmed no opinion, "Western Mineral Wool & Ins. Fibre Co. v. Illinois Steel Co., 71 Ohio St. 498.

   WINCH, J.

The Illinois Steel Co. brought suit in the common pleas court against the Western Mineral Wool & Insulating Fibre Co. to recover on a promissory note for $500 executed by the latter and payable to the former. After the bringing of the action the wool company made an assignment for the benefit of its creditors to A. A. Bemis, who qualified as such and filed an answer and cross-petition in which he pleaded a failure of consideration for the note and charged that the true consideration for said note was the promise upon the part of the steel company not to engage in the manufacture of mineral wool by what was known as the “Rockwell Process” which process was patented and used, owned and controlled by the wool company, which promise on the part of the steel company has been broken.

By way of counterclaim the assignee also alleged breach of said contract and averred that the steel company did engage in the manufacture of mineral wool by said “Rockwell Process” and placed the same upon the market at one-half the price theretofore obtained for it, thus ruining its business, to its damage in the sum of $50,000. General denials to the answer and counter-claim were filed.

The steel company maintained that the note was given pursuant to a written agreement between the parties, which recited that the wool company was the owner of certain buildings and machinery located on certain premises belonging to the steel company, but leased to the wool company under a lease providing for the removal of said buildings and machinery by the lessee; that certain differences had arisen between the parties and that it was claimed that the wool company was indebted to the steel company for certain rents and other matters growing out of the provisions of said lease, which claims were disputed by the wool company; that for the purpose of the settlement of all differences in consideration of the acceptance by the steel company of a transfer and conveyance of said buildings and machinery and of the note of the wool company for $500 in full of all claims and demands to .date against the wool company, the latter sold and conveyed said buildings and machinery to the steel company, “it being understood and agreed that by the transfer of the buildings and machinery named in this instrument, the Illinois Steel Co. acquires no rights of any kind or value under the patents of Charles H. Rockwell and by him assigned to the Western Mineral Wool & Insulating Co.”

The wool company claimed and offered to prove at the trial at the time of said written contract was entered into a parol agreement between the parties was made that the steel company would not use said buildings and machinery for the manufacture of mineral wool by the “Rockwell Process” that said parol agreement was collateral to and distinct from the written contract between the parties and was part of the consideration for said note and the transfer of said property; that the note would not have been given or the property conveyed, but for this parol agreement on the part of the steel company; that the steel company had violated this parol agreement and thereby not only had the consideration of the note failed, but the wool company had been greatly damaged.

It is conceded that if the steel company used the “Rockwell Process” and manufactured mineral wool by it and the process was protected by patents owned by the wool company the latter would have its remedy for such infringements in the federal courts, but to bring the matter, within' the jurisdiction of the state courts a contract between the parties that one would not use the other’s patented process must be proved.

Most of the testimony offered to prove the parol agreement, its breach and the damages arising therefrom was ruled out by the trial court, and this ruling, as well as the charge of the court with reference to this parol contract are assigned as errors by the wool company.

To the general rule that parol evidence will not be received to add to, take from or vary the terms of a written agreement there is the exception that parol agreements may be proved when they are collateral to and distinct from the written agreement, although made in consideration of the execution of the written document.

The cases illustrating this exception show that it is very difficult to determine with precision any satisfactory and definite line of demarcation between the classes of cases in which parol evidence is admissible and those in which it is not, where the parties have made a written contract in reference to the general subject of agreement between them.

By the written contract in this case it appears that the general subject of agreement between the parties was the settlement of claims made by the steel company against the wool company. That to settle these claims the wool company gave its note and conveyed certain property to the steel company. The statement in the written contract that by said instrument the steel company acquired no rights in the Rockwell patents was clearly intended only to rebut the presumption that having conveyed machinery especially adapted to use in a patented process, the right to use the process went with it.

If the parties at the time were also contracting about an: other matter distinct from the settlement of their accounts, certainly no other consideration was moving to the wool company than the settlement of their accounts. To engraft this parol agreement upon the written contract would limit the use to which the property conveyed could be put to by the steel company. It would add to and vary its terms.

It was an unnecesary thing to do, as by its patents the wool company was sufficiently protected against the use of the property by the steel company, to manufacture mineral wool under the Rockwell Process. It can not be apprehended that at that time the wool company desired to make a deliberate choice of the state courts in which to litigate any future controversy as to the future use of the property conveyed when it had its protection and remedy in the federal courts.

The parol agreement has some of the features of an agreement not to engage in a certain business. The following authorities are in point, as to such agreements:

“Where the consideration of a promissory note consisted in part of the price of a fish stand, which had been paid and endorsed, and in part of an agreement on the part of the payee not to engage in the fish business for a year in competition with the promisor and the terms and conditions of the sale were evidenced by a contract in writing, which contained nothing relative to the good will of the business, it was held, in an action on the note between the original parties that the promisor could not prove, in his defense, that at the time of the sale a verbal contract was made between the parties, that the payee would not engage in the fish business for a year, and that this agreement had been violated.” Wilson v. Sherburne, 60 Mass. (6 Cush.) 68.
“In an action upon a written lease to recover the rent reserved parol evidence is not admissible to show that at the time, and as one of the considerations to induce the defendants to execute the lease, the plaintiff promised and agreed not to engage in the butcher business in the same block during the term of the lease, and had failed to keep that promise. Scholtz v. Dankert, 69 Wis., 416 [34 N. W. 394].
“If a written contract is entered into by which one person promises to' give another ‘ a lease and full possession of his stock and store for the term of five years at a yearly rent as understood by both’ for which a certain sum as bonus and also a market price for the stock are agreed to be paid, parol evidence is incompetent to show that this was executed only as a memorandum and partial statement of the agreement, for special pur-, pose, and that another independent oral agreement was made at the same time and upon the same consideration that the seller should not engage in similar business within five years.”' Doyle v. Dixon, 94 Mass. (12 Allen), 576.

Plaintiffs in error cite and rely upon the case of Welz v. Rhodius, 87 Ind., 1 [44 Am. Rep. 747], which case is similar to the cases above referred to, but contrary to them in its conclusions. The Indiana case appears to have followed the doctrine laid down in English authorities, which authorities have been much criticized in American cases as carrying the doctrine of the admissibility of parol evidence where there is a written agreement between the parties, to an extreme length.

Judgment affirmed.

Hale and Marvin, JJ., concur.


author: GORMAN, J.

text:
    MUNICIPAL CORPORATIONS
    [Hamilton (1st) Court of Appeals,
    March 29, 1915.]
    Jones, Jones and Gorman, JJ.'
    George E. Shilling v. Cincinnati (City).
    1. Removal of Ashes by Municipality is Government Function.
    The removal of ashes by a municipality from business houses and the residences of private citizens is an exercise of a governmental function, and not of a private or proprietary duty.
    2. Municipal Ash Cart Employe cannot Recover for Injuries Resulting from Insufficient Help.
    But were a contrary holding to be made, no cause of action would arise in the case of one employed on an ash cart and with experience in that class of work, who complains that he injured himself lifting receptacles containing ashes because not enough help was provided for the work.

      Alcdrn & Alcorn, for plaintiff in error.

      Walter M. Schoenle, City Solicitor, and Constant South-worth, Assistant City Solicitor, contra.
   GORMAN, J.

This was an action brought by the plaintiff in error to recover damages for personal injuries sustained by him while in the service of the defendant as an ash-cart man, in attempting to lift into one of the city’s carts a receptacle containing ashes, and which by reason of its great weight and the insufficient strength of plaintiff and another employee of the city, caused the plaintiff to strain himself and become permanently injured. The negligence charged is the failure of the city to furnish a sufficient number of men to collect and carry away the receptacles containing ashes, and although plaintiff complained of the want of sufficient help he was ordered, to do the work with another man or leave the service.

A demurrer to the petition was sustained by the court below, and the petition was dismissed. • It is claimed that the court below erred in not overruling the demurrer.

While there is a conflict of authority as to whether or not the removal of ashes from the residences of the citizens is an act of the municipality in its governmental capacity, we are of the opinion that the weight of authority supports the contention that such an activity on the part of the municipality is an exercise of a governmental function and not an exercise of its private or proprietary duties.

The authority to remove ashes is found in Sec. 3649 .G-. C., under the enumerated powers granted for the preservation of the health of the inhabitants of the municipality.

The power or even duty on the part of the municipality to make provision for the public health, and for the care of the sick and destitute, appertains to it in its public and not corporate, or as it is sometimes called, private capacity. ’ ’ Dillon, Municipal Corporations, 4th Ed., Sec. 977; Condict v. Jersey City, 46 N. J. L., 157; Haley v. Boston, 191 Mass., 291; [77 N. E. 888]; Johnson v. Somerville, 195 Mass., 370 [81 N. E. 268].

There are, it is true, authorities which hold that the removal of ashes and garbage is an exercise of the proprietary or private functions of a municipality, among which may be cited the following cases: Quill v. The Mayor, 36 App. Div. (N. Y.), 476; Missano v. Mayor, 160 N. Y., 123 [54 N. E. 744]; Denver v. Porter, 126 Fed., 288 [61 C. C. A. 168],

Some of these cases arose where the municipality was removing ashes and refuse from its streets and under a statutory duty to keep its streets clean and free from nuisance, and not under the duties to be performed by the health department; and we believe that in such cases, street cleaning and repairing, the municipality may be under the statute liable for negligence. This is true at least in Ohio.

But we do not believe that this rule of respondeat superior should apply where the municipality is exercising its police powers through the authority granted it to provide for- the public health. It is not ordinarily liable for negligence while engaged in the performance of its functions under the police powers. But if it be conceded for the purposes of the case that the defendant in removing ashes from the residences was exercising its authority and powers in its private or proprietary capacity, nevertheless, we hold that this ease is ruled by the case of Cincinnati Gas & Elec. Co. v. Johnston, 76 Ohio St. 119.

In that case Johnston, an employee of the defendant company, ruptured himself while lifting a heavy spar, in conjunction with other employees of the defendant company, and it was held that he being an experienced man in the work and knowing the number of men necessary to do the work safely and prudently, could not recover by reason of the failure of the master to furnish a sufficient number of men to safely perform the work.

In the case at bar the plaintiff was an experienced man at removing ashes and lifting receptacles. He knew better than any one the limits of his strength and his lifting powers. He was not obliged to tax his strength beyond his capacity. He Avas not ordered by any superior to do so. He did what he did voluntarily. Nor does it appear that he was ordered to lift any receptacle into the ash wagon. His orders were generally-to collect and remove ashes. We think that his liability to over-exert himself was one of the ordinary risks incident to his employment which he assumed when he remained at work on the ash-cart. As was said in the Johnston case, supra, we do not think the case of Van Duzen Gas Co. v. Schelies, 61 Ohio St. 298 [55 N. E. 998], applies to the facts of the case at bar.

The lifting of the ash receptacle, as the lifting of the spar in the Johnston case, supra, required no special skill and involved no risk or peril except such, as was perfectly obvious to every one. Plaintiff knew its weight, or at least that it was heavy, and he knew the number of men ordinarily required to handle the receptacle, and if more than two men were required to. lift it he knew it. Indeed, he knew every fact and circumstance that was within the knowledge of the foreman of his department, his superior officer, with reference to the work he was performing. Under such circumstances his petition fails to state a cause of action and the demurrer was properly sustained.

Judgment of the court of common pleas affirmed..

Jones (S. H.) and Jones (O. B.), JJ., concur.