author: Swing, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, J.T.
    HOLMES adm., v. VILLAGE OF AVONDALE.

      Burns Law — Application to street improvements—
    The action of council of a village for a street improvement under the act of April 15, 1890 (87 O. L. 201) one half the cost to be paid by the village, is subject to the general provisions of the Burns law (sec. 2702JEtev. Stat.), and a contract entered into for the improvement of a street without certificate of the Clerk being secured that the money is in the treasury, is void, and the contractor can not be held to such contract.
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

This case is here on error to the Court of Common Pleas. The action^in that court wa§ on a bond to recover for the failure of Holmes to enter into a contract to construct a street in the village of Avondale, the construction of which street was authorized by an act of the legislature of the state of Ohio, passed April 15, 1890, (87 O. L. p. 201.) Holmes was a bidder to do the work, and gave bond that if the contract was awarded to him that he would give bond to complete the work in accordance with his contract. The contract was awarded to him, and he was notified, but failed to enter into the contract to do the work and give, bond for its performance. A contract was made with other parties at a higher figure, and this action was prosecuted to recover damages for his failure to perform the contract. The Court of Common Pleas awarded damages in favor of the Village against Holmes and his bondsmen. This action is prosecuted to reverse that judgment.

The act under which the improvement was made provided that the village should pay one-half of the cost, and the abutting property owners the other half — the latter to pay their half in annual installments. The village was authorized to issue bonds. "

The main question in the case depends upon whether section 2702 Rev. Stat. applies. The evidence clearly shows that the money required to pay the Holmes contract was not in the treasury of the village, and there was no certificate of the clerk that it was. No attempt was made to comply with such section, the claim being that said section had no application to this improvement.

«. We think it must be conceded that if this section applies, and it not having been complied with and any contract that might have been made in disregard of this section being void, that neither party would be liable in damages’ for not entering into a void contract.

Does this section apply? We think it does.

The language of the section is that “No contract,agreement or other obligation, involving the expenditure of money, shall be entered into * * * unless * * the clerk thereof shall first certify that the money required for the contract * * is in the treasury * * This is broad, clear and exact, and it must apply to every contract made by a village, unless there is some exception contained in the statute creating the right to contract (either clearly expressed or necessarily implied) under other grants of power. Certain exceptions are made, in this section in express terms as to cities of the second grade of the first class, as to contracts for improvements similar to the one here under consideration; but there is no exception in the general law which excepts this village from its operation, and we see nothing in the law of 1890 supra, which in the least shows that in the entering into contracts for the improvement, section 2702 Rev. Stat was not intended to apply. Nor .do we see anything in reason why it should not apply as well to contracts made under this act as to any other contract of a like nature.

L. W. Goss, for Plaintiff in error.

A. B. Huston and John W. Warrington, for [the Village.

This is in accord with the decision of this court, in the case of Reig & Martin v. The Village of St. Bernard (not reported), and which decision was affirmed by the Supreme Court of Ohio without report. It is also in accord with the case of Bond v. Madisonville, 2 C. C. 449, and Drott v. Riverside, 4 C. C. 312

The judgment of the Court of Common Pleas will therefore be reversed, and the cause remanded for further proceedings.


source: Caselaw Access Project

author: Russell, J.

license: Public Domain

text:
    (Fourth Circuit—Scioto Co., O., Circuit Court
    March Term, 1896.)
    Before Clark C. J., and Cherrington and Russell JJ.
    JOHN A. JONES v CHARLES E. MOLSTER, ad’r of Jennie Pine.

      Conditional Contract of sale of piano made in other state and there recorded under State law — Removal to Ohio — Failure to record contract here under Ohio law — Death of purchaser in Ohio, leaving insolvent estate — Rights of administrator—
    J., living in the state of West Virginia, leased toP., residing in che same state, with conditional contract of sale, a piano. The contract was duly recorded in Huntington according to the laws of West Virginia. Afterwards P., desiring to move to this state, made a verbal contract with J., whereby it was agreed that P. might take the piano with her to Ohio, and there execute and deliver to J. whatever instrument was necessary to perfect the lien of J. on the piano. P. moved to Portsmouth, Ohio, taking the piano with her, and resided there about fourteen months, and died insolvent without executing any other instrument; nor did J. file the original instrument executed in West Virginia, with the county recorder in Portsmouth, Ohio. M. was appointed administrator of P.
    Held: J. could not maintain an action of replevin against M.,[asM. represents the creditors of P., and as to them the conditional contract was void, because of non-compliance with section 7913-72, Rev. Stat. That, although J. could have replevined the piano from P.in her life-time, at her death the piano became assets in the hands of her personal representatives, for the benefit of her creditors.

      Foreign Contracts — Comity—
    Held, contracts made in other states, valid there, will be enforcedjn this state, unless they contravene the laws of this state.
   Russell, J.

Error to the Court of Common Pleas of Scioto County.

This was a suit in replevin by Jones against Molster to recover the possession of a piano. The facts are as follows:

On the second day of October, 1891, John A. Jones, then residing in Huntington, West Virginia,sold to Jennie Pine, residing at the same place, a piano, under a conditional bill of sale, of which the following is a copy:

“Huntington, W. Va., Oct. 2, 1891.
‘‘Whereas John A. Jones has rented to Jennie Pine an piano, stool and scarf, and whereas said Jennie Pine wishes to have the refusal thereof in case the said Jennie Pine should desire to purchase said piano at any time within twenty-nine months from the date hereof. Now, said John A Jones agrees to sell the said piano to said Jennie Pine at any time within twenty-nine months from date hereof for the sum of three hundred dollars, with interest from date, cash at 6 per cent, per annum. In case said Jennie Pine should purchase said piano within said period, said John A. Jones agrees to refund to said Jennie Pine all rent for said piano paid by said Jennie Pine to said John A. Jones between the date hereof and the date of purchase. Any payments made hereafter to said John A. Jones by said' Jennie Pine over and above the rent of said piano are to be held by said John A. Jones on deposit subject to the order of said Jennie Pine. Said piano is not to be considered sold and no property therein to rest in said Jennie Pine until said purchase-money is actually paid to said John A. Jones.1
“Harvard Style B., No. 1547.
“Jennnie Pine, (Seal).
“Jno. A. Jones, (Seal). ’’
“Valued at 1300.00. Huntington, Va,, Oct. 2, 1891.
“This is to certify that I have this day hired of John A. Jones an piano valued at three hundred dollars which I agree to return to him in as good condition as when received customary wear and tear excepted. I further promise and agree to return said piano to the said John A. Jones in Huntington whenever he shall require or demand the same; provided the money paid in advance for time not yet’ expired if any be refunded. Also, to insure the same against loss by fire and be also responsible for the same on such occasions, and also that this piano shall no* be removed from the premises now occupied by me at No.--, Huntington, W. Va., (removal from danger by fire excepted). Hired by the month at ten ($10.00) dollars in advance.
“Jennie Pine, (Seal.)”

This instrument was duly signed, ackowledged and recorded October 22, 1891, in the office of the county clerk of .Cabell county, as required by the laws of West Virginia.

It is admitted by both of the parties to this action, that this 'contract in question is a valid one under the laws of West Virginia, and was on the 22d day of October, 1891, duly recorded in the office of the clerk of the county court of Cabell county, in that state, according to law.

On the 25th day of May, 1893, Jennie Pine removed to Portsmouth, Ohio, to reside permanently in that place; and at the same time, with the knowledge and consent of Jones, she took the piano in question with her to Portsmouth, under an agreement with him to execute a new contract or lease, under the laws of Ohio, when she became settled there. She resided in Portsmouth until her death on the 12th day of July, 1894, and made payments on the piano up to that time, amounting to the sum of $120.

On the 27th day of July, 1894, Chares E. Molster was duly appointed her administrator by the Probate Court of Scioto County, Ohio, and as such administrator, took possession of the piano, along with her other assets, and had it appraised. At the time of her death, Jennie Pine had preferred debts for physicians, nursing and funeral expenses to the amount of $225, and general debts to the amount of $300. The assets coming into the hands of the administrator, including the piano, amounted to $225.

The conditional contract of sale between Jennie Pine and Jones was never filed in the office of the recorder of Scioto county, although she had agreed to give a new contract on her removal to that state, when she took the piano to Portsmouth with the knowledge and consent of Jones. Jones came to Portsmouth on August 1st, 1894, and demanded the re-delivery of the piano from Molster, the administrator, which was refused. Thereupon, Jones replevied the piano from Molster, on the same day.

The case was tried oefore Volney R. Row, justice of I he peace, and judgment rendered for the plaintiff. Thereupon the defendant appealed to the common pleas court, and the case was tried before a jury. It was conceded by both parlies that the value of the piano did not exceed $125. The common pleas court charged the jury that at the commencement of the action, the defendant had the right to the property, and to the possession thereof, and that they should simply assess the damages. The case being submitted to the jury on the question of damages only, they returned a verdict for the defendant in the sum of $90. A motion for a new trial by Jones was overruled, and he filed his petition in error, the errors assigned being on the weight of the evidence and the charge of the court.

Russell, J.

The case presents these questions:

1st. What were the rights of Jones as to this property? It will not be denied, under these pleadings, but that as between Jennie Pine and Jones, the latter would under the West Virginia contract, have the right to replevin the property from her in law, at any time prior to her death or its seizure by her creditors; but the question here is, was it good after her death as against the creditors of Jennie Pine in the state of Ohio? Section 7913-72, of the Revised Statutes, provides:

“That in all cases where any personal property shall be sold to any person, to be paid for in whole or in part in installments, or shall be leased, rented, hired or delivered to another on condition that the same shall belong to the person purchasing, leasing, renting, hiring or receiving the same whenever the amount paid shall be a certain sum, or the value of such property, the title to the same to remain in the vendor, lessor, renter, hirer or deliverer of the same, until such sum or the value of such property, or any part thereof, shall-have been paid, such condition, in regard to the title so remaining until such payment, shall be void as to all subsequent purchasers'and mortgagees in good faith, and creditors, unless such condition shall be evidenced by writing, signed by the purchaser, lessor, renter, hirer or receiver of the same, and also a statement .thereon, under oath, made by the person so selling, leasing or delivering the property, as herein provided, his agent or attorney, of the amount of the claim, or a true copy thereof, with the affidavit, that the same is a copy, deposited with the clerk of the township where the person signing the instrument resides at the time of the^execution thereof, if a resident of the state; and if not such resident, then with the clerk of the township in which such property is sold, leased, rented, hired or delivered, is situated at the time of the execution of the instrument.”

It is claimed by the plaintiff that under the law of comity we ought to enforce a contract in Ohio which is perfectly good between the parties in West Virginia, where it was entered into; in other words, if this lease or contract of conditional sale has been executed and recorded in West Virginia, and the same is valid there, and the vendor permits the vendee^to bring the property into Ohio, there to remain permanently, the instrument ought to be good and enforced against^the^administrator, at least, who is but the personal representative of the party.

It is claimed by counsel for plaintiff in error that the law of comity between states ought to be extended that far. The law of comity, as we understand it, in the enforcement of contracts in[courts where the remedy is sought, should be enforced kTthis extent only: that if the contract is not contrary to the law of the state where it is sought to be enforced, then, as a matter of comity, it will be enforced by the court. In other words, if it does not contravene the rule of the court, or the acts of the legislature, in the state where it is to be enforced, then, as a matter of comity, it will be enforced, as well in the state where the remedy is sought as in the state where it is made. But if the contract is in contravention to the law of the state as administered between its own citizens, then it will not be enforced between parties coming from another state and undertaking to enforce it, as the law of contracts between them here; and especially where it conflicts with rights of our own citizens as required under our own laws. To enforce this contract here, as against the administrator of the insolvent estate, who simply represents the creditors, would be giving to the statute of West Virginia greater force than to our own. The vendor in this case permitted the property to be taken into this state, when by thejlerms of his lease, he could have prevented such action; and if he has chosen to do so, he must, in order to retain or preserve his- lien, take the necessary steps required by the statutes of Ohio, to make the contract a valid lien upon the property as against creditors, mortgagees and purchasers in good faith. This is the doctrine laid down in the case of Harvey v. The Rhode Island Locomotive Works, 92 U. S. 664, which is one of the leading cases on the subject, and which has since been approved by the court .more than once. I think the gist of the decision is contained in the syllabus of the case, and I shall therefore content myself with reading the same, as the case itself is of some length. The court says:

“2. The real owners of personal property, who vest another, to whom it is delivered, with an interest therein, must, if desirous of preserving a lien on it in Illinois, comply with the requirements of the chattel-mortgage act of that state.
“3. Where personal property has been sold and delivered, secret liens, which treat the vendor as its owner until the payment of the purchase-money, cannot be maintained in Illinois. They are held to be constructively fraudulent as to creditors, and the property, so far as their rights are concerned, is considered as belonging to the vendee holding the possession.
“4. Nor is the transaction changed by the agreement assuming the form of a lease. The courts look to the purpose of the parties; and if that purpose be to give the vendor a lien on the property until payment in full of the purchase-money, it is liable to be defeated by creditors of the vendee who is in possession of it.”

The court, in the opinion on pages 673 and 674, says:

“In the case at bar, the agreement (made and entered into in the state of Connecticut) contemplated that the engine should be removed to the state of Illinois, and used by Conant & Co., in the prosecution of their business as constructors of a railroad. It was accordingly taken there, and put to the use for which it was purchased; but while in the possession of Conant & Co., who exercised complete ownership over it, it was seized and sold, in the local courts of Illinois, as their property.
—The Rhode Island Locomotive Works took the risk of losing its lien in case the property while in the possession of Conant & Co., should be levied on by their creditors, and it cannot complain, as the laws of Illinois pointed out a way to preserve and perfect its lien.”

Now, this case, it seems to us, settles the matter, if we take into consideration the statute in force in Ohio, requiring the filing of conditonal safes, ether in the office of the recorder, if a city where the recorder’s office is situated, or else with the township clerk. Now, can Jones come into Ohio and enforce this mortgage, conditional salé, lease, or whatever he calls it, against the creditors of the party, after permitting her to bring the property into this state, to remain here permanently? To permit him to do so, against her creditors, mortgagees and purchasers in good faith, would be giving greater effect to the statute of West Virginia than to our own; in other words, it would be giving an effect to the statute of West Virginia directly contrary to the express pi’ovisions of our statute, and would be allowing the parties, by the verbal contract made May 25, 1893, in Huntington, W. Va., to avoid the law of Ohio in regard to conditional sales of personal property. We think that cannot be done, and the Supreme Court of the United States hold that it is not the rule.

The plaintiff in error relies on the case of Kanaga v. Taylor, 7 Ohio St, 134; but in that case, the property was taken into OkkTwithout the knowledge or consent of the mortgagee, and before the mortgage had become absolute, and as soon as he learned of its location, he proceeded within a reasonable time to enforce his claim on the same under the contract made in New York; but this case is different; here the property was taken into this state with the full knowledge and consent of Jones, and the doctrine announced by the court in Harvey v. The Rhode Island Locomotive Works applies to the case at bar.

2nd. The next question is one that seems to us to be of a more serious nature than the other, and that is the question of whether or not, when Jones could have taken this property on replevin from Jennie Pine in her life-time — ■ whether or not the persoixal representative, having the right simply of Jennie Pine in the property, could have any higher claim upon it than Jones. But on this question we have no trouble; our Supreme Court, in the case of Kilbourne v. Fay, 29 Ohio St. 264, has expressly decided that question, holding that he cannot; the reason given by the court being, that the personal representative, after the demise of the party, simply represents the creditors, and does not represent the party or the distributees, and that he stands as the representative of the creditors, and has the right to demand that the property be administered in the same maixner as if they had taken legal proceedings against the party in his life-time, and had acquired a lien thereon.

The court, in the syllabus of the case, says:

“1. Where a chattel mortgage is declared void by the statute, as against the creditors of the mortgagor, and the mortgagor dies in possession of the mortgaged property, leaving an insolvent estate, such property becomes assets in the hands of the executor or administrator of the mortgagor, whose duty, as well as right, it is to .defend his possession against the claim of the mortgagee, notwithstanding such mortgage was valid as against the mortgagor.”

And then, on page 284, the court further says:

“After a careful consideration of these cases, a majority of the court, both upon authority and reason, hold, that where a chattel mortgage is absolutely void as against the creditors of the mortgagor, who dies in possession of the mortgaged property, leaving an insolvent estate, such property becomes assets in the hands of his executor or administrator, to be administered for the sole benefit of such creditors, and disbursed ratably among them, notwithstanding such mortgage be a valid lien against the mortgagor during his life-time, and against the distributees of his estate after his death, and that it is the duty, as well as the right of such executor or administrator to defend his possession of such property against the claim of such mortgagee.”

Jonathan 8. Dodge, for the plaintiff.

Evans & Livingstone, for the defendant.

The same doctrine is substantially announced in the case of Hanes v. Tiffany, 25 Ohio St. page 549. We see no error in the charge of the court, and the judgment of the common pleas court will be affirmed.


author: Swimg, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term,, 1896.)
    Before Swing, Cox and Smith, JJ.
    McGRATH v. COWEN.

      Partnership — Power of one partner to assign and mortgage partnership property to prefer firm creditors without the Icnowledge or consent of his co-partner — Validity of mortgages thus executed.

    - Appeal from the Court of Common Pleas Hamilton County.
   Swimg, J.

This was an action by a partner, McGrath, to wind up the business of the firm of Cowen & McGrath, a firm carrying on the boot and shoe business in the city of Cincinnati.

The controversy in litigation here is as to the validity of certain chattel mortgages.

The material facts in brief are, on May 20, 1893, and for a period of six years hitherto, the firm of Cowen & Mc-Grath were wholly insolvent. On that day McGrath executed four certain chattel mortgages on the property of the firm for an amount equal to the firm’s assets. There were numerous other creditors unsecured. At this time none of the debts secured were due, and the mortgages were executed without solicitation or knowledge on the part of the mortgagees. The mortgages secured valid debts. Mrs. Cowen, the other member of the firm, was not consulted by McGrath as to the giving of these mortgages, although she was present in the store all of said day. For some time previous to said day, McGrath had been endeavoring to induce Mrs. Cowen to make an assignment of the firm’s assets, but she had persistently refused to do so. On said day, and before delivering the mortgages,bnt after their execution, McGrath had prepared the petition filed in this case, and together with his attorney and the attorney of Mrs. Cowen, who had been attending to her business in other matters, but who in this matter acted'without her knowledge or consent, agreed upon the appointment of a receiver,and who it should be. McGrath .expected that the giving of the mortgage would put an end to the running of the business. The mortgages were delivered on the following Monday morning, the 22nd day of May, and afterwards, on the same morning, this petition was filed and a receiver appointed, and when Mrs. Cowen c’ame to the store on said morning, she found the store closed and in charge of the receiver, and then for the first time she was informed as to what had taken place.

Our conclusion from these facts is: That McGrath having failed to induce Mrs. Cowen to join with him in making an assignment of the firm’s assets, executed these mortgages for the purpose of putting an end to the business, and that he intentionally and purposely concealed from her his .acts in'order that he might carry out this purpose.

The general rule as to the rights and duties of partners is thus stated by Parsons, on Partnership commencing at sec. 108:

“The right of every partner to sell, assign or transfer, any part or the whole of the partnership property, in the way of the regular business of the partnership, is absolute and unquestioned. There is an exception to this rule in reference to the real estate of a partnership, but none as to the personal property. Suppose a partnership delt in buying and selling cotton, and all their stock consisted in five hundred bales stored in New York; there is no more doubt that either one of the partners might sell, and give good title to the whole, than that he could do so with a single bale. This, however, must be done in the regular course of the business of the firm; for outside of this he has no such power. If he does this in fraud of the other partners, that is, if he sells the whole, or any part, intending to run off with the proceeds, and does run off with them, this has no effect on the title of the purchaser, unless he has some knowledge of the fraud.
“If, however, a partner undertakes not to sell the goods or property of the partnership, but to assign them, by way of pledge or mortgage, to secure the debts of the firm, or in any unusual way, he has not necessarily any power to do this. Neither do we consider it certain that he has no power to do it. On the one hand, such a transaction seldom or never belongs to the regular business of a firm. If it does, of course he has this power. If ,it do is not, it may still be so far connected with, or so naturally arise out of or promote, their regular business, that if the transaction be an honest one, without bad faith on the part of any party, we should say it was a valid transaction, which the law would enforce. Perhaps a consideration of the authorities and of the reason of the case would lead to this difference between the selling ánd the assigning in pledge of partnership property by one partner. If the sale take place in the course of business, it would bind the other partners, as we have seen, though fraudulent as to them; but an asssignment in pledge or mortgage, not being in the way of business, would bind the other partners if it were done in good faith for the advantage of the firm, and was reasonable in itself, but not otherwise.
“One partner may, in good faith, ássign a part of the property to pay or secure an existing debt, or a debt to be contracted. (There is some doubt, however, whether he has power to assign the whole property in trust for all the creditors. His power to transfer firm property generally is within the scope of the firm business, since the object of the business is to dispose of such property. But the assignment of all the property in trust for creditors is necessarily outside the scope of the business, since it puts an end to the business. The better opinion therefore seems to ’ be that in the ordinary case one partner has no power to assign all the assets in trust for creditors without the consent of the ether partners. But if the other partners are absent, and can not become at to be consulted, one partner who is thus left in charge of the business may in an emergency make a general assignment.)”

Lindley on Partnership, 1 Yol., p. *126, etseq., says:

‘‘It will be observed that what is necessary to carry on the partnership business in the ordinary way, is made the test of authority where no actual authority or ratification can be proved. This is conformable to the most recent and carefully considered decisions; but by adopting it,the liability of a firm fer the acts of its co-partners is not so extensive as non-lawyers sometimes imagine. The act of one partner, to bind the firm, must be necessary for the carrying on of its business; if all that can be said of it was that it was convenient, or that it facilitated the transaction of the business of the firm, that is not sufficient in the absence of evidence of sanction by the other partners. Nor, it seems, will necessity itself be sufficient if it be an extraordinary necessity. What is necessary for carrying on the business of the firm under ordinary circumstances and in the usual way is the test; and therefore, in a case where the nature of the business was one in which there was no necessity to borrow money to carry it on under ordinary circumstances and in the ordinary manner, the court held the firm not liable for money borrowed by its agent under extraordinary circumstances, although money was absolutely requisite to save the property of the firm from ruin. This case is an authority for saying that a power to do what is usual, does not nclude a power to be what is unusual, however urgent; and although, in the case referred to, the money was not borrowed by a partner, but by a person who was only an agent of the firm, the decision would, it is apprehended, have been the same if he had been a partner. For notwithstanding the fact that every partner is to a certain extent a principal as well as an agent, the liability of his co-partners for his acts can only be established on the ground of agency. As their agent, he has no discretion except within the limits set by them to his authority, and the fact that he is himself, as one of the firm, a principal, does not warrant him in extending those limits, save on his own responsibility.
“The question whether a given act can orean not be said to be necessary to a transaction of a business in the way in which it is usually carried' on must evidently be determined by the business, and by the practice of persons engaged in it. Evidence on both of these points is therefore necessarily admissible, and, as may readily be conceived, an act which is necessary for the prosecution of one kind of business in the ordinary way,may be wholly unnecessary for carrying on another. Consequently no answer of any value can be given to the abstract question, ‘Can one partner bind his firm by such and such an act?’ Unless having regard to what is usual in business, it can be predicated of the act in question either that it is one without which no business can be carried on, or that it is one which is not necessary for carrying on any business whatever. There are obviously very few acts of which any such assertions can be truly made. The great majority of acts, and practically all which give rise to doubt, are those which are necessary to one business and not in another, Take, for example, negotiable instruments; it may be necessary for one member of a firm of bankers to draw, accept or endorse a bill of exchange on behalf of the firm, and to require that each member should put his name to it would be ridiculous; but it by no means follows, nor is it in fact true, that there is any necessity for one of several solicitors to possess a similar power, for it is no part of the ordinary business of a solicitor to draw, accept or endorse bills of exchange. The question, therefore, can one partner bind the firm by accepting bills in its name? admits of no general answer; the nature of the business and the practice of those who carry it on (usage or customs ofjthe trade) must be known before any answer can be given.”

The second proposition of the syllabus in the case of Anderson & Wilkins v. Tompkins et al., 1 Brock., p. 456, is as follows: “Where all the partners of a mercantile firm are present, they have a right to be consulted in giving a preference to particular creditors; but this necessity is dispensed with, if one of the partners is absent in a foreign country.” In the body of the opinion of Chief Justice Marshall in this case it is said: “It will be readily conceded that’a fraudulent sale, whether made by deed or otherwise, would pass nothing to a vendee concerned in the fraud, but with this exception I feel much difficulty in setting any other limits to the power of a partner in disposing of the effects of the company purchased for sale. He may sell a yard, a piece, a bale, or any number of bales. He may sell the whole of any article or any number of articles. This power would certainly not be exercised in the presence of a partner without consulting him, and if it were so exercised, slight circumstances would be sufficient to render the transaction suspicious, and perhaps to fix on it the imputation of fraud. In this respect every case must depend on its own circumstances. ‘But in a case perfectly fair, I can perceive no grounds on which it is to be questioned’.”

In a case cited by plaintiff, 66 Fed. Rep. 850, the court say, speaking of the case before them: “There is no suspicion of fraudulent action or intent as to the other partners, or as to unpreferred creditors, beyond the mere fact of preference.”

We take it that the foregoing citations from the authorities fairly state the law applicable to this case, and applying the principles to the facts of this case it seems to us that the mortgage can not stand. That it was a fraud upon the rights of Mrs. Cowen when she was present and could have been consulted,for McGrath to mortgage the assets of the firm to almost their full value, when the only object of McGrath in doing it was to secure certain creditors and at the same time make it necessary for the firm to discontinue business. No creditor secured asked to be secured. It was not in the usual course of the business," and it was not done from any pressing necessity of the business, or to prolong the life of the firm. Its manifest object and intent was to destroy the firm and bring its existence to a close. McGrath purposely kept all knowledge of his acts from his partner, knowing her objections to such a course, in order that he might be able to successfully carry out his purpose in disposing of the firm's property and destroy its existence. It seems to us that such conduct is opposed to the plainest principles of right and justice, and that if was a clear fraud on the rights of Mrs. Cowen, and the rights and obligations of the partnership. Mrs. Cowen had just as much right to prefer creditors as McGrath, and that is what this transaction amounted to when it came to winding up the business or preferring creditors, She not only had that right, but she had the right to know if such a thing was contemplated. Non constat, she may have wanted to prefer certain other creditors, or as far as it appears, she might have been able to pay off these claims or make satisfactory arrangements with the creditors and continue the business. The rights and obligations of partners are mutual, and nothing can be done by either which is not for the benefit of all unless the rights of innocent parties intervene. It is certainly the right of a partner to pay a debt of the firm,but it must be in the usual course of the business and for the benefit of the firm. One partner may also,if the necessity arise,mortgage the property of the firm, but if it be anything out of the ordinary, and the other partner is accessible, he should be consulted — good faith and honest dealing requires this. But here it is clear that Mc-Grath purposely concealed from Mrs. Cowen these transactions, and almost wholly disposed of the firm’s assets in the securing of certain creditors. It appears to us that to permit such a transaction to stand would be against the clearest principles of right.


author: Smith, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing Coz, and Smith, JJ.
    MARGARET CROMWELL & EMMA S. BRINTON v. JOHN W. HERRON, Adm’r of Estate of John Kebler, Dec’d.

      Claim against insolvent estate partly secúred by mortgage — Creditor entitled to dividend on total amount. 1

    1. A creditor of an insolvent estate who has a mortgage or other security for part of his claim, is entitled to a dividend on the full amount thereof, including the amount which he may realize from such security, if together they do not equal the amount of his claim.

      Same — Exception to action of Commissioners — Right to appeal to Probate Court limited to ten days.

    2. Where a party has a claim against an estate duly declared insolvent, which claim is partly secured by mortgage on real estate, and the commissioners allow such claim, less the amount which might be thereafter realized from a sale of the real estate by which it was partly 'secured, such creditor, if dissatisfied with such limited allowance, must appeal from such decision of the commissioners, to the probate court within ten days, or such action of the commissioners will be final.

      Same — Action of Probate Court on motion to allow dividend — Appeal to Common Pleas.

    3. Where in such case, more than ten days after such decision of the commissioners, the creditor makes a motion in the probate court asking that the administrator be required to pay the dividend on the whole amount of .the claim, which motion is overruled, no appeal will lie from such action of the probate court to the common pleas.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

In this case the plaintiffs in error seek the reversal of a judgment of the Court of Common Pleas, dismissing an appeal taken by them from the judgment of the Probate Court, refusing to grant a motion of said Cromwell and Brenton filed in such court directing the administrator of the estate of Kebler to pay to them a dividend on the full amount of their claim presented against such estate, and which order then made on such motion, authorized the administrator to pay to thém dividends on the amounts of their respective claims, deducting the sums paid to them heretofore from the sales of the real estate on which they held mortgage security, and which dividend the journal entry shows they refused to accept, and gave notice of an appeal, and gave bond in the sum fixed by the Court, and filed the transcript for appeal in the Court of Common Pleas.

The transcript of the docket entries of the Probate Court shows the appointment of Mr. Herron as the administrator do bonis non, with the will annexed of the estate of John Kebler, February 27, 1888, and that on August 8, 1890, the estate was declared probably insolvent, and the appointment of L. N, Catch and W. C. Herron, as commissioners, to receive and examine all claims of creditors against said estate, and that on March 20, 1891, the report of said commissioners was duly filed, and on May 7, 1891, an order was made by the Court confirming such report, On June 1, 1891, an entry was made ordering a dividend. On February 2, 1892, it appears that the motion of plaintiffs in error before mentioned was filed, and on March 18, 1892, the order of the Court overruling the motion was entered, and then the appeal was taken.

In the Court of Common Pleas the case was heard, and a finding of facts made, and the appeal dismissed at the costs of the plaintiffs in error.

The finding of facts in so far as we deem it necessary to state it,was substantially this:'“That said plaintiffs in error were creditors of the estate of Kebler, one of them in the sum of $3,200 and interest, and the other in the sum of $2,975.50 and interest, evidenced by notes on which Kebler was liable to them, and secured by a mortgage on real estate. That these claims had been allowed by the administrator as valid claims prior to January 1, 1892. That after the proofs of these claims, and after the filing and confirmation of the report *of the commissioners of insolvency, the real estate covered by said mortgage was sold in October 1891, and the net proceeds, amounting to $3,314.63, were paid over to the plaintiffs in error jointly on their said claims. That after the presentation and allowance of said claims, and before the said sale of the mortgaged property, the Probate Court declared said estate to be probably insolvent, and appointed commissioners of insolvency under the statutes of Ohio.

“That said commissioners in March, 1891, reported that there was due from the estate to Margaret Cromwell on her note the sum of $4,382.37, and to Emma D. S. Brenton on her note the sum of $3,705.46, and further represented that said claims were partly secured, and said commissioners allowed the above sums after deducting the amounts that might thereafter be received from said securities, and thereafter in June, 1891, the Probate Court declared a dividend of five per cent on the indebtedness so reported, and the said administrator afterwards offered to pay said parties the said dividend upon the amount so reported, less the amount paid to said parties from the proceeds of said sale, which was refused.”

And as a conclusion of law, the Court held that the plaintiffs in error were only entitled to a dividend on the amount of the claim, after deducting the payments made thereon from the proceeds of the mortgaged property.

The principal question argued to us in, the case was, whether a person who has an admitted claim for a certain amount against an insolvent estate, for which he holds a mortgage or other security, is entitled to a dividend on the full amount thereof, as well as the amount he may realize from his other securities, (if together they do not equal the amount of the claim), or whether he is only entitled to a dividend on so much of his claim, as remains after crediting thereon the amount realized from the other securities.

When the question was first presented to us, I believe all of the members of the court were of the opinion that the latter was the true and equitable rule, and in the absence of any decision by the Supreme Court of this state, we felt disposed to so hold, and Judge Cox is still of the same opinion. A more careful consideration of the many authorities cited to us has led Judge Swing and myself to the conclusion that the great weight of authority is to the contrary. So far as I am concerned I come to this conclusion with' reluctance, for I feel that it is not the most equitable rule.

But it is urged by the administrator that this question is not properly presented by the record in this case. In effect his claim is that the decision of the commissioners appointed to examine and report on the claims against the estate, was final as to both creditors and the estate unless appealed from to the Probate Court, and that the commissioners only allowed so much of the claim of those parties as - would remain after crediting thereon the amounts received from the securities held therefor, and that no appeal was taken therefrom.

It it clear from sec. 6224 Rev. Stat. that on the appointment of such commissioners they are to receive, pass upon and make report as to all claims against the insolvent estate, including those before presented to the administrator, and allowed by him, and return a list thereof with the amount allowed on each. And they may examine the claimant and other witnesses as to the amount due under the provisions of sec 6233 and 6234. They act then as a quasi judicial tribunal.

Sec. 6230 provides that any person whose claim shall be disallowed in whole or in part by the commissioners, and aily administrator who may be dissatisfied with the allowance of any claim, may appeal from the decision of the commissioners to the Probate Court. This may be done by the creditor within ten days from the decision by complying with the terms of the statute, and in case of such appeal the Court is to hear and determine the question,

There is no claim that any such appeal was taken by either of the parties, but on the contrary the report of the commissioners was approved by the Probate Court and a dividend ordered to be paid on the claims as so allowed. But it is urged by counsel for plaintiffs in error that by this finding of the commissioners the whole of the principal and interest of these claims was allowed, and therefore it was not necessary that his clients should appeal, but on the contrary on such report they were entitled to a dividend on the whole amount.

We do not so understand the allowance of the claims, as shown by the finding of facts. They did report that there was due to each of these plaintiffs in error a certain sum, but that the claims were partly secured, and that they allowed the above named sums, after deducting the amounts that might thereafter be received from the said securities. This certainly cannot be held to be an allowance of the whole claim, but of so much thereof as would remain after the payment thereon of the amount received from, the securities. If this was not satisfactory to the creditors, it not being an allowance of their whole claim, they should have appealed to the Probate Court, and this not having been done, we think the question is finally settled, and that on the filing of a motion as was done in this case, by the plaintiffs in error, nearly a year afterwards, that the administrator be required to pay a dividend on the original amouut of the whole claim, and this being decided against them, they could not appeal from this ruling to the Common Pleas.

Wilby & Wald, for plaintiff in error.

Herron, Gateh & Herron, for defendants in error.

In addition to this it would seem, that no appeal would lie under See. 6407, or under any statute with which we are familiar, from a refusal by the Probate Court to grant a motion of this kind. By the section named appeals may be taken to the Court of Common Pleas from any order, decision or judgment of the Probate Court in settling the accounts of an administrator, but this was not a case of this kind.

We think therefore the Court was right in dismissing the appeal, as it had no jurisdiction of the case, but the judgment for the costs will have to be reversed, and the case be stricken from the docket of the Court.


text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before'Swing, Cox and Smith, JJ.
    ALEXANDER STUART & ROBT. B. HENLEY v. FRANCIS FORD.

      Parties renting by the year, holding over — Liability for rent for entire year less amount oiuner could realize for use of storeroom during such year.

    Where parties rent a storeroom for a year, at a fixed rental payable monthly, and after the expiration of the year, the agreement was renewed for another year, and the same was done the succeeding year, - and at the expiration of that year, without any other or new arrangement, they occupied the room for six months of the succeeding year, paying the same rent therefor monthly, and then left, having notified the owner a month before that they would leave by that time, against the owner’s protest, such parties will be liable for the rent for the entire year. And where the owner proposed to the parties to aid in renting the premises so left vacant for the unexpired part of the year after they left, the rent received therefor to be a credit on his claim again'st them for the rent for the balance of the year without thereby waiving any of their rights, to which proposition no reply was made, and the landlord rented such storeroom for one month, such owner will be entitled to recover from such parties the rent for the balance of the year less the amount which he thus succeeded in realizing for one month.
    Error to Superior Court of Cincinnati.
   Smith, J.

In this case, if the jury which rendered a verdict on the trial in the Superior Court in favor of Ford, the plaintiff below, believed the evidence offered by him and on his behalf, we think they were warranted in finding that in the month of October, 1887, a contract was entered into by and between him and the defendants, by which they agreed to and did rent from him the store room, (the rent for which is sued for in this action), for the unexpired part of the year 1887, and the full year of 1888, at the price of $80 per month. That they took possession and continued in the occupancy thereof until July,l, 1892, and paid the rental at the agreed price up to that time. That in January, 1889, it was agreed that they would keep the room for another year. That it was subsequently agreed that they were to keep it for the year 1890. That without any other or different arrangement they occupied it during the whole of the year 1891, paying the same rent therefor. That they continued in the possession -thereof from January 1, 1892, until July, 1, 1892, paying the same rent therefor, without any other or new contract or arrangement, other than this, that about June 1, 1892, the defendants notified Mr. Ford that they would leave the property on July 1. That Ford notified them that they were holding the property for the full year, and that he would hold them liable therefor. That the defendants claimed they were only tenants by the month, and left the property July 1. That plaintiff proposed to them to aid in renting the property for the balance of the year after they left, the rent received to be a credit on his claim against them, this to be without prejudice to their claim. That when defendants left the house, Ford took charge of it under protest, and succeeded in renting it for one month. To this no objection was made by defendants. Plaintiff sued for six months’ rent from July 1, 1892, to January 1, 1893, crediting defendants with the rent received by him for the one month.

We have said that if the jury believed the evidence offered for plaintiff, they were warranted in finding the facts as above stated. As to one point, the evidence was conflicting. Defendants claimed that in the fall of 1891 they notified Ford that they expected to leave the store room during the coming year, and for that year they were to have it by the month. This was denied by the plaintiff, and as the jury must have found on this issue in favor of the plaintiff, we cannot say that this finding was so manifestly against the evidence as to justify us in holding that the trial judge erred in refusing to grant their motion for a new trial, based on this ground.

On this state of fact, were the defendants tenants by the month, or for the year 1892? We are of the opinion that they were entitled to the possession of .the property for the whole of the year, and therefore were liable to pay the agreed price of $80 per month,unless the fact of the renting it by Ford, for one month of the year after the defendants abandoned it, operated to release them. On the facts stated there was an express agreement for all of the year 1890, at a rental of $80 per month. The arrangement was not changed for the year 1891, during which time defendants continued in possession thereof, nor was it changed for 1892, the defendants continuing to hold possession after January 1 up to July, 1892. We understand the law to be as stated by Judge Day in deciding the case of Lodge v. White, 30 Ohio St. 569, 573. He says: “By a parol agreement between the parties the plaintiff leased the premises to'the defendants for one year, from July 1, 1869, at a rent of $8,500, payable in monthly instalments. About the time of the expiration of the lease, and again a year afterward, the parties negotiated for a new lease, differing-in the terms and amount of rent; but upon the facts found, we think the Court might well hold that their minds never met in agreement upon a new lease, and that by reason of the continued possession of the premises by the defendants after the expiration of the lease for one year, and the-acceptance of monthly payments by the plaintiff at the same annual rent, the defendants were to be regarded as tenants-holding over from yeai to year.” * * * “Where a tenant holds over by the consent of the lessor, the law presumes the holding to be upon the terms of the original lease.”

This language is not carried into the syllabus of the case, but it is in accordance with reason, and the authorities as we understand them. Did the taking charge of the store room and the renting it for one month, after the abandonment óf it by the defendants, put an end to the right of the plaintiff to sue the defendants, and recover from them the six months’ rental, after crediting thereon the amount realized from the rental to the other party, on the facts disclosed in the case? We think not. The defendants left the premises with the distinct knowledge that the plaintiff claimed they were bound for the rent for the whole year, and against his protest, and he received the keys thereof under protest, and with notice that he would sue for the rent for the residue of the term. He proposed to them to aid him in renting the property for the unexpired term, without waiving any of their rights. They made no response to this, and offered no objection to his renting it. We are of the opinion that he might then rent it, without waiving his right, and perhaps that it was his duty to take such steps as would lessen his damages'Jfor the breach of the contract by defendants.

Roelker & Jelke, for plaintiffs in error.

Wilby & Wald, for defendants in error.

We think the rulings of the trial court objected to were in accord with those principles, and we see no error therein, and the judgment of that court will be affirmed with costs, but without penalty.


author: Caldwell, J.

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Caldwell, Hale and Marvin, JJ.
    MICHAEL McCAFFERTY v. DOCK COMPANY.

      Employe or Independent contractor — Distinction defined — Liability for injury by the negligence of oioner’s employe to employe working under contract—

    In an action to recover of a dock company for injuries received by an ore handler, while in the service of the company, by reason of the falling of a piece of iron, from machinery which had gotten out of repair while in use, Held :
    1. That if the machinery got out of repair through the negligence of another of the company’s employees, supposed to be competent and careful, whose duty it was to superintend repairs and to inspect said machinery and keep it in repair, and who had no control over the person injured, he is a fellow servant of the latter for whose negligence the person injured cannot recover from the company.
    2. Where the dock company, for the loading of ore from its dock into cars at a specified price per ton, has entered into contract, for a definite time, with certain persons, whereby the company is to furnish and operate the hoisting machinery, and the contractors are to furnish men to handle the ore, and, by the terms of the contract, the contractors and their men are to be subject generally to the directions of the company, and the contractors agree to promptly discharge on the company’s request, any men in their employ not satisfactory to the company, an employee of such contractors is a fellow servant with an employee of the company, where no relation of subordination or subjection exists between them.
    3. Where the facts in relation to a contract to perform certain work and to furnish men to do it, are defined entirely by a written agreement, which is put in evidence and undisputed, it is error to submit to the jury the question whether or not a servant of one of the parties to the contract is a co-employee with a servant of the other party, engaged in the same common employment, where no question of subordination between such servants is involved, for it is merely a matter of construction of the contract.
    Error to the Court of Common Pleas of Cuyahoga county.
   Caldwell, J.

The plaintiff in error has a dock upon which is ore, and they take the ore from the dock and load it into cars. In doing this, the Dock Company made a contract with certain parties, namely Fred. Simon, William Russell, James Graulty, John Bohall and John Comerford, who are named in this contract as party of the first part, and the Dock Company is named as party of the second part. The party of the first part was to handle this ore, and the Dock Company was to furnish hoisting apparatus, machinery, and malls and wedges to do it with. All other implements needed were to be furnished by the party of the first part, who were to handle this ore as the Company should desire. The Company was to furnish the povser and run the machinery which handles the buckets,and the men named were to do the work.

The main question in the case is as follows:

One of the men employed by the party of the first part, who were to load ore and had the handling of it, was injured at work at this business, by the engineer employed by the defendant below, Dock Company, through his negligence or the negligence of some persons who were working under him. It seems that out on the arm, or tramway, on which the bucket is run, an iron had got loose, by reason of the loosing of bolts, and when McCafEerty, the defendant in error, was dumping the bucket, or about to dump it, that iron fell from somewhere above, and striking him on the arm, broke it. The persons who took care of this- machinery for the Dock Company, and who had the care of it, were one Brown, the engineer, and the other persons who assisted him, all of whom were employed by the Company. The question of law involved in this case is: Can these contractors (for they are contractors, in one sense, for the loading of this ore at five cents per ton) and the persons in their employ, be fellow workmen with- a person employed by the Dock Company to run its engine, when the carelessness of the latter has contributed to or caused the injury? In one sense, they have not a common master. The part of the contract applying to this question is as follows:

“Said first parties” (that is, these persons who were to loadHthe ore) “further agree to constantly have abundant and sufficient men on hand, between the hours of seven A. M. and seven P. M., of each week day during - the life of this contract, for the prompt and speedy loading with ore all ears'coming to and placed on said docks to be so loaded, and further agree that they and all employes of theirs engaged in the performance of this contract, shall generally be subject to the directions of said second party” (that is, the Dock Company), “its superintendent and foremen, and shall operate all appliances belonging to said second party on said docks, with proper care and subject to the inspection and direction of said second party, its superintendent and foremen. ’ ’ The superintendent and foremen here spoken of are not the engineer or engineers who had charge of the repairs of this machinery.

The contract further provides: “Fourth — They further agree to promptly discharge any men in their employ not satisfactory to said second party on the request of said second party, its superintendent and foremen.” This contract, by its express terms, makes the party of the first part, that is, the persons who load the ore, and their employes, subject entirely in this work to the directions of the Dock Company, its foremen or superintendent. In the second place, the contract gives the Dock Company a right to discharge any of the persons employed by these contractors; that is, if the Dock Company requests the contractors to discharge them, then they must do so; which is simply equivalent to saying that the Dock Company could discharge them.

With these elements, we proceed to examine this bill of exceptions. There are three errors complained of. In the first place, McCafferty’s arm was broken by a piece of iron falling, and the petition and proof show that it was done by the machinery getting out of repair, and not because that machinery was not good and perfect when purchased. The court in its charge says: “I say to you that in the first instance it was the duty of the defendant to furnish for the purpose of conducting its business, that of loading iron ore from its dock to the railroad cars, its employes with ordinary machinery and appliances in an ordinarily safe and working condition, and if its failure to do so caused an injury resulting from such failure, without fault on the part of the person injured, it would be liable.” Now, that was error. The ground of error there was that there is nothing in the petition, no issue and no evidence, as to whether or not the Dock Company had furnisned the proper kind of machinery; that is whether or not that machinery when furnished was in bad condition. The whole matter turns on the question: Had it got out of repair?

If an employer buying machinéry, hires a person to buy it for him, and if that person has not exercised good judgment in doing so, or has not exercised good care in putting in the machinery, the fact that he is a mere employe does not exonerate his employer from paying damages for injuries resulting from, such defective machinery. But if machinery gets out of repair without the employe’s knowledge, and through the negligence of a person, supposed to be competent and careful, whom he has in his employ to superinted the repairs, and whose duty -it is^to inspect said machinery and keep it in repair, then we have two decisions in this state, which hold that such superintendent of repairs is a fellow servant with another employe, not subject to his control, who is injured through his neglect; and the person who is injured therefore cannot recover. Railroad Companies v. Webb, 12 Ohio St. 475; Railroad Company v. Fitzpatrick, 42 Ohio St. 318.

There being no evidence to show that there was any complaint at all as to the condition of this machinery when it was put in there, the charge on this point, already quoted, was prejudicial to the defendant below. The jury may easily have said: “This machinery is good for nothing; the judge says if it was not good, the plaintiff McCafferty can recover. ” This is prejudicial, and the judgment must be reversed on that account.

The second point is this: The contract before referred to, is in writing and was put in evidence. It thoroughly establishes the relations between these'parties, the contractors and the Company. One of tbe questions in this case was: What is the relation ? What is the relation between the plaintiff,, who was injured, and the engineer who had charge of the repair of the machinery? That was the question they were trying to solve below. If the relation of these two parties was determined by this contract, it was the duty of the judge to say whether they were co-laborers or not. Instead of that, the judge submitted it to the jury. Nearly all questions of negligence are questions of fact and of law combined, but whenever the facts become settled, whenever they are without any dispute, then it becomes merely a question of law for the court.1' But as long as there is a dispute in regard to the facts, it is proper to submit that dispute to the jury. The facts here are determined entirely from this contract, and being merely a matter of construetion of the contract, the judge had no right to submit that question to the jury. Now, it is said that the court erred in that respect, .and the court did err. The judge charged the jury allowing them to determine that question, and refused repeatedly to charge in such a way as to solve the question whether these persons could be co-employes or not. If these five persons were employed by this contract to load the ore into the cars (and I say this more because the case may be tried over again than anything else, and yet it is really in .the record to determine whether or not this engineer and the plaintiff were co-employes), the mere fact that they had the loading of this ore by contract instead of by the day, may or may not make a difference. This was a contract for the year from May 1, 1891, to May 1, 1892, but though it is a contract in one sense, and for a definite time, yet may not the parties who are to do that work be after all servants? The question is determined very largely by the nature of the contract. In the City of Tiffin v. McCormack, 34 Ohio St. 638, Judge Mcllvaine delivering the opinion, the court, in its syllabus, second paragraph, says:

“The owner of a stone quarry hired a person ‘to go into the quarry, quarry stone therein, break the same to a certain size, and pile them up so they can be measured, ’ and ‘had no other or further control’ over the emplbye, who was ‘to furnish and find the gunpowder and other tools,’ and receive compensation at the rate of $1 per perch; and the employe, by blasting with gunpowder, destroyed the buildings of an adjoining proprietor. Held, that the employer is liable for the injury inflicted by the employe.”

Judge Mcllvaine, speaking of this, says:

“But we are of opinion that the true relation between the city, as proprietor of the stone quarry, and Ardner, was that of master and servant, instead of employer and independent contractor within the principle of the rule above stated. There was no ‘job’ or defined quantity of work contracted for. The services of Ardner were subject to be determined at the pleasure of either party. The compensation was to be measured by the quantity of labor performed. ”

And then he says about their control of him, that is a mere matter affecting the rate of compensation. If he was the servant and they contracted not to control him, they could not do it. And if, without such a contract, they did not control, it was their fault.

The rule by which it is generally determined whether or not a person who does work by contract is a servant is: Does the master keep control of the work and the workmen? Can the master at any time discharge those whom the contractor employs? Another test is: Does the master pay the subordinate, or do the contractors pay the subordinate? These are the tests that are applied, and where any one of them exists, sometimes the court has determined that the relation between the one for whom the work is done and the one employed by the contractor is that of master and servant, in so far, that if the latter is injured by the negligence of the one employed by the former in the same work, the master is not liable. The question before us is very close. The line is a fine one, and quite uncertain in. many cases where the courts have divided entirely upon these three questions: Had the master control of this person? Could the master discharge him ? Was the master paying?

In this contract we think there was such control over these contractors and over this subordinate, and there was such power to dismiss him as to make him the servant of the Company in so far that where this engineer or his subordinates, by their neglect, caused the injury, they were co-servants with the injured, and the court should have so construed this contract, instead of leaving that matter to the ;iuly-

Now, this question arises in the case, and, to be brief, I will simply refer to the principle without the actual facts: The court undertook here to give a definition of who are co-servants; yet, it is so general that it is almost misleading, if not quite so, to the jury. That is, it does not give the jury, or the common juryman, any information on that subject. It would give an attorney, or a man of learning in the law, but it would not give the ordinary juryman any real information at all. The definition is very general. The judge’s attention was called to that, and a request was made applying the principle laid down in that definition, to the actual facts of this case. The court refused that request. That is error, and if it is at all prejudicial, the judgment should be reversed on that ground, and we think, in this case, under this definition, under the facts in evidence, and under this request as it was made, that the court did err in not giving that request.

Hart. & Canfield, and Kerruish, Chapman & Kerruish, for plaintiff.

Squire, Sanders & Dempsey, and Hoyt, Dustin & Kelley, for defendant.

So, on these grounds, the case is reversed and remanded for a new trial.


author: Hale, J.

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court,
    Jan. Term, 1896.)
    Before Caldwell, Hale and Marvin, JJ.
    PATRICK MORAN v. STATE.
    1. Evidence — Criminal Law — Statement by accused heard only by one of several by-standers competent — A statement or expression alleged to have been made by the accused at a time when several persons were present, but testified to as having been made only by one of those present, while others did not hear it, is competent, the weight of such testimony being left to the jury.

      2. Order of testimony — The order in which testimony as to some fact goes to the jury does not affect its competency, if it finally all gets to the jury.
    3. Permitting question whether there was a certain conversation when such conversation would be incompetent — It is not reversible error by the court to permit a question to be put, over objection, whether there was, or not, a certain communication by the deceased to his wife as to who assaulted him, when such a communication would'be incompetent if it had taken place. It is very common practice by the courts first to ascertain whether there was any conversation at all upon the subject to what the question related, either way, and then to determine its competency, if there is nothing disclosed from which the jury could rightfully draw the slightest inference.
    4. Description of accused on which officer arrested him — Where counsel for the accused, on cross-examining the officer who made the arrest, attempted to show that he acted recklessly and without any relible information and in bad faith, it is competent on reexamination to let him state that before starting out to make the arrest the wife of the deceased gave him a description of the man who made the assault, and to state what that description was.
    5. Incompetent Testimony must be prejudicial also to be ground for reversal of judgment — The testimony must be both erroneous and prejudicial before a judgment will be reversed because of its introduction to the jury. Where the testimony as a whole established no fact prejudicial to either the witness or accused, but there is nothing in this testimony that could by any construction have had the least weight with the jury in determining the verdict, it was of no" benefit to the State, nor injury to the plaintiff in error, ana its admission will not be sufficient ground for a reversal of the judgment.
    6. Good Character — Proof of — Effect—Previous good character, when established, is a circumstance to be considered in’”conneetion with the other evidence in the case’in determining the guilt or innocence of the accused, but does not raise any presumption whatever. It is a circumstance favorable to the prisoner "always to be considered,yet evidence establishing the chargehnay be so strong and conclusive as to render evidence of this character unavailing, In the practical application of such evidence, it has^nothing to do with the overt act of guilt; but it is proper that the jury should consider it when searching for a motive or purpose" of“deliberation, for it may well be supposed that a man of good character and reputable, and who has led a blameless life, would”not be as likely to indulge those passions and exhibit the depravity necessary to commit murder as one habitually'engaged in thejviolation ’ of law.
    7. - Verdict contrary to evidence as ground for reversal in criminal case, —A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, but^there is a marked difference between the practicable application of this rule in civil and criminal cases. In"a'eivil case'a verdict is authorized if supported by a bare preponderance of the testimony, but in a criminal case a verdict of guilty is only authorized when the evidence produced establishes the guilt of the accused beyond a reasonable doubt; and the verdict may be manifestly against the evidence, although supported by a preponderance of the testimony, for the reason that more than a preponderance of the testimony is required to warrant a verdict o guilty.
    8. Some — Evidence—Improbable Conduct of Accused — It is not safe to judge of the acts and conduct of one possessed of a wicked purpose to kill by the ordinary conduct of men who act from honest motives engaged in no unlawful enterprise. Murder itself is the exception, and not according to the ordinary rule of con-' duct in human affairs; and it is a matter of little surprise that the conduct of a murderer should not in all respects be consistent. The state of mind that would lead one to commit murder might naturally lead to other conduct not in all respects consistent with reason. But the fact that the transaction was strange and unnatural . should lead to a greater care and caution in weighing the testimony, and should always be considered by the jury.
    Error to the Court of Common Pleas of Cuyahoga county.
   Hale, J.

The plaintiff in error, Patrick Moran, was tried at the April term of the court of common pleas of this county, upon an indictment containing three counts, charging him with murder in the first degree in causing the death of James Fox. The alleged date of the crime was December 25, 1892. He was convicted of murder in the second degree on the first count of the indictment, and acquitted of all other charges. A motion for a new trial was overruled by the court, and a life sentence imposed.

A bill of exceptions was taken, and the record brought here for review.

The errors insisted on may be classified under three heads: , 1st. Decisions of the court upon objections made to the admission of testimony.

2nd. Errors in the charge of the court to the jury.

3rd. That the verdict is contrary to the evidence.

First — Did the court err in any of the rulings on the admission or exclusion of testimony ?

(1) On the night of the homicide and about one hour after the assault, Moran was arrested by two police officers without a warrant, and taken to the house of Theodore Blakeslee, 73 Church street, where the crime was committed. Blakeslee was assaulted and mortally wounded at!he same time the assault was made upon Fox, and undoubtedly by the same person.

At the time Moran was brought io his house, Blakeslee was lying on the floor in a dying condition, and did, in fact, expire a short time thereafter.

Mrs. Blakeslee claimed to have seen the murderer as he left the house after the assault, and was brought into the room for the purpose of determining whether Moran was the man she had seen. Several witnesses were permitted to testify to what occurred while Moran was there and in his presence, including statements made by Mrs. Blakeslee to or about Moran. The introduction of this testimony was resisted on the ground that Moran was at the time under arrest, and not called upon to make answer to charges made against him, and should not be prejudiced by the fact that he remained silent.

When brought into the room, Mrs. Blakeslee said in substance: “Yo.u are the man that killed my husband; you did it;” or ‘‘there is the man that killed my husband; he did it.” It will be conceded that if Moran had made answer to the charge thus made to him or in his hearing, both the statements made to him and his reply would be competent.

It appears from the record that testimony was given tending to establish the fact that Moran did not keep silent, but did speak. One witness says he heard Moran say in a low tone: /‘My God, did I do that?”

If this be true, the testimony was competent. It was not for the court to say that it was untrue, and therefore reject the testimony.

Many of the witnesses did not hear the statement of Moran, but that does not affect the competency of the testimony, if there was testimony tending to establish the fact that such statement was made by him and heard by others. Both statements may not be heard or testified to by the same person. Nor does the order in which the testimony goes to the jury affect its competency, if both finally get to the jury. For this reason alone the testimony was properly received.

But even if no statements were made by Moran, the testimony under the circumstances, was, we think, competent. We know that there is some conflict in the' decisions of the different states on this question, and while the precise point has not been determined by the Supreme Court of the state, we think the tendency of the decisions is in favor of the admissibility of this testimony, leaving the weight to be determined by the jury. Murphy v. State, 36 Ohio St. 628.

This testimony is of more or less value,depending upon the particular circumstances surrounding the accused at the time, and should undoubtedly be examined with great care and caution, as the jury were told to do in this case.

(2) During the examination of Mrs. Blakeslee, she was asked the following question:

“Q. I will ask you if you had any conversation with him. (meaning her husband) or heard any that was carried on by signs or otherwise, as to whom it was who assaulted him that night?”

To this question defendant’s counsel objected.

“The Court — He may answer yes’or no.”

“A. Yes, I did.”

“Q. What was that conversation?”

To which question an objection was sustained.

The claim is that the court erred in permitting the first question to be put, or answered at all. It is said that although the question is a preliminary one, the prosecuting attorney and the court knew that the subject-matter to which it related was clearly incompetent, and that the tendency was to prejudice the accused, and permit the state indirectly to get the benefit of a statement made by Blakeslee.

We think there is very little to base this claim upon. The court followed a very common practice in first ascertaining whether there was any conversation at all upon the subject to which the question related either way, and then determine its competency. There was nothing whatever disclosed from which the jury could rightfully draw the slightest inference. We can not presume the jury made an improper and unauthorized use of the testimony, and make that the basis of error.

We are not prepared to say that the court acted at all imprudently in allowing the question to be answered.

(3) The court the officer who made the arrest to state to the jury that before starting out to make the arrest Mrs. Blakeslee gave him a description of the man who made the assault, and to state what the description was. This evidence was received against objections of plaintiff in error.

It is shown in the record that counsel for the prisoner had cross-examined this witness at great length, in an attempt to show that the witness in making the arrest acted recklessly and without any reliable information, and apparently in bad faith. The testimony objected to was called out on re-examination, to show what it was that called the attention of the witness to the facts stated by him, and as fixing the information upon which he acted. For this purpose and in explanation of the testimony called out on cross-examination, the testimony was competent.

It was not offered or admitted to prove any facts bearing on the identity of the prisoner. The competency of the testimony is supported to some extent by a case reported in 25 N. J. L. 566. I Green,sec. 101.

(4) The State attempted, against the objection of the accused, to show that the wife of the accused visited the room of Fox on one or two occasions, but the attempt was a complete failure. This testimony was incompetent, it is true, unless brought to the knowledge of the prisoner, either by direct proof or by proof of such circumstances as ‘to charge him with knowledge of the fact. The testimony must be both erroneous and prejudicial before a judgment will be reversed because of its introduction to the jury. The testimony as a whole established no fact prejudicial to either the witness or accused. There was nothing in all this testimony that could by any construction have had the least weight with the jury in determining the verdict; it was no benefit to the State, nor injury to the plaintiff in error.

Many other exceptions are noted in the record to the decisions of the court on the admission and exclusion of testimony, to which we have been referred, and upon which we are notified counsel rely. It is wholly unnecessary to enter upon a discussion of each of these objections. We have already noted those upon which counsel seemingly place the most reliance. We have, however, examined with care all exceptions to which our attention has been called, and find nothing in them at all of which the plaintiff in error can justly complain; certainly no error for which the judgment should be reversed.

Again, it is claimed that the court erred in the instruc- • tions given to the jury upon the effect to be given to the evidence offered in the case of the previous good character of the accused, and in refusing to give to the jury two requests submitted by counsel for the prisoner upon that same subject. The two requests which the court refused to give are as follows:

“Prop. III. The defendant has put in evidence his character from being a peaceable man. This evidence it is your duty to consider in connection with the other evidence in this case by way of rebuttal of any inference that he would commit the act charged against him. The reasonable effect of the proof of the defendant’s good character in this case, is to raise a presumption that the accused was not likely to have committed the crime with which he is charged. While good character is no excuse for crime, it is a circumstance bearing indirectly on the question of the guilt of the accused, which it is your duty to consider in ascertaining the truth of the charge made against him in this case.
“IV. I will say to you farther with respect to this evidence introduced by the defendant tending to show that prior to the time he perpetrated the offense for which he is on trial, that should you find from the testimony in the case that he did attain a good character with respect to being a quiet, peaceable man, that of itself may be sufficient to create a doubt in your minds as to his guilt in this case. ’ ’

These requests were properly refused. The court was asked to determine the weight of the testimony offered instead of a request to state to the jury the object and purposes of the testimony referred to and the proper use to be made of it.

In the first request the court was asked to say: “The reasonable effect of the proof of the defendant’s good character in this cause is to raise a presumption that the accused was not likely to have committed the crime with which he is charged.’’

The reasonable effect of the testimony in this case was for the jury. It was not for the court to say as a matter of law that the proof offered in the case established the fact that the accused sustained a good character, nor that proof of his previous good character to the extent shown in the case raised any presumption whatever, The true rule un« doubtedy is that previous good character, when established, is a circumstance to be considered in connection with the other evidence in the case in determining the|guilt or inno-> cence of the accused.

It is a circumstance favorable to the prisoner always to be considered, yet evidence establishing the charge may be so strong and conclusive as to render evidence of this character unavailing.

The second request was equally objectionable.

But whether these requests were objectionable or not, if the instructions given to the jury on his point were correct, and all that was required to enable the jury to fully understand and apply the law to the facts of the case, there is no ground of complaint.

Upon this subject, the court said to the jury:

“The defendant has called sundry witnesses to testify of his good character, and as to his being a quiet and peaceable man. You have heard this testimony and the opportunity they had of knowledge on that subject. In the practical application of this evidence in the case, it will not be claimed it has anything to do with the overt act of guilt; but it is proper you should consider it when you are searching for a motive or purpose of deliberation, for it may well be supposed that a man of good character and reputable, and who has led a blameless life, would not be as likely to indulge those passions and exhibit the depravity necessary to commit murder as one habitually engaged in the violation of law; for this purpose it is proper that we should consider it.
“It is evidence, offered and to be considered tending to render more probable the claim made by the defendant, that he did not commit the act. The general rule is to be kept in mind, however, that as against guilt clearly proved, good character will not avail to acquit. ’ ’

The first clause of the statement standing alone might not be understood by the jury; but taken in connection with the statement following it, defining the purpose for which this testimony is offered and to be considered, it could not have misled the jury. We suppose the court intended to say that this class of evidence was of no value in establishing the -corpus delicti. For this clause is followed immediately with the statement that this evidence may be considered in determining the motive, purpose and deliberation, essential elements of the crime charged, and was also “evidence offered and to be considered tending to render more probable the claim made by the defendant that he did not commit the crime.”

This was giving to the accused, we think, the full benefit of the law upon that subject.

Other exceptions were noted in the charge, but not, we understand, seriously insisted upon. But whether that be so or not, there was no error in the charge as given or in refusing the instructions asked.

Lastly, it is claimed that the verdict of the jury is contrary to the evidence.

In considering this alleged error we are to be governed by the rule of law early announced by the Supreme Court of the state and uniformly adhered to by that court.

The law is concisely stated in Breese v. The State of Ohio, 12 Ohio St. 146, where it is said:

“A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing court will always hesitate to do so when the doubt of its propriety arises out of a conflict in oral testimony.

There is, however, a marked difference between the practicable application of the rule in civil and criminal cases.

The condition in the two cases are entirely different. In a civil case a verdict is authorized if supported by a bare preponderance of the testimony, but in a criminal case a verdict of guilty is only authorized when the evidence produced establishes the guilt of the accused beyond a reasonable doubt; and the verdict may be manifestly against the evidence, although supported by a preponderance of the testimony, for the reason that more than a preponderance of the testimony is required”to warrant a verdict of guilty.

The case turned upon the identification of the plaintiff .in error as the author of the crime.

Of those at the Blakeslee house at the time of the homicide, there were called as witnesses: Mrs. Blakeslee, Ada Davis, Arthur Blakeslee (10 years of age) and W. E. Williams.

Mrs, Blakeslee had more than ordinary means of identification ofjjthe accused. For two months prior to this transaction, Moran had made frequent visits to Fox, who roomed at Blakeslee’s house; and she came to know him as a friend of Fox, though not by name. On this night, as her testimony appears in the record, she heard Moran’s voice at the door as he inquired for Fox, but did not then know it was Moran; after the assault, she saw him face to face in a light sufficient to enable her to identify him as the man she had seen on his visits to Fox. ■ About an hour after this man was brought into her presence and identified as the one whom she had seen leave the house in the manner described by her. Mrs. Blakeslee was not testifying to the identity of a stranger whom she had seen but once, but one with whose features and appearance she was more or less familiar. She swears positively that the man she saw on that evening was Moran.

She is corroborated, to some extent at least, by the witness Miss Davis and the boy Arthur. We do not believe these witnesses were guilty of corrupt perjury as is claimed by counsel for Moran."

It is said that the transaction as described by these witnesses is so unnatural and contrary to human experience that it should not have been believed by the jury; and it is suggested that Fox and Blakeslee killed each^other.

This suggestion finds no support in the testimony. Both Fox and Blakeslee were wounded in a similar manner, and undoubtedly by the same instrument in the hand of the same man. There was but one hatchet'found after the assault, and it could not have been used by each of these persons to mortally wound the other.

Nor is it safe to judge of the acts and conduct of one possessed of a wicked purpose to\kill by the ordinary conduct of men who act from honestjmotives engaged in no unlawful enterprise.

Murder itself is the exception, and not according to the ordinary rule of conduct in human affairs; and it is a matter of little surprise that the conduct of a murderer should not in all respects be consistent. The state of the mind that would lead one to commit murder might naturally lead to other conduct not in all respects consistent with reason.

The fact that the transaction was strange and unnatural should lead to greater car.e and caution in weighing the testimony, and should always be considered by the jury.

In addition to the testimony of these witnesses there were a number of circumstances of some value shown in the record proper to be considered in^jdetermining the point now under consideration.

The first of these is the. conduct of the accused when charged wtih being the author of the crime on the night of the homicide at the Blakeslee house — the circumstances of which have been stated.

If he did say, as one witness says he did, “My,God! did I do that?” it was quite important. If, however,as assumed by the counsel for the accused, nothing was said, it was of some value. If Moran was innocent of the charge made against him, it would seem but natural that he should have said something. We do not accept the excuse for not doing so that there was no time given him for a reply.

Again, Moran at and before this transaction was in the employment of the American Tool Company. The hatchet left at the Blakeslee house after the assault was a peculiar one. The head was octagon, two sides of which were bronzed; the edge/was jnicked, the head loose and somewhat battered, Prior to/thej^assault a^hatchet of precisely this discription was at the factory where Moran was employed. There was some testimony tending to establish the fact that Moran took a hatchet home with him shortly after the assault at the factory. This^testimony, was of some value, and should not be overlooked.

Form & Dawley, for plaintiff.

Neff & Strimpel, for the state.

Again, the blood^spots upon the clothes of Moran should not be overlooked. There were small spots of blood upon both sleeves of the coat, slight traces of blood on the vest, also near the arm-hole, On the left sleeve of shirt, on the cuff, two blood stains, one one-half inch long; a slight trace on the neck tie, and a large smear of blood on the left side""pocket ofthe pantaloons.

Some of the statements of the accused were well calculated to challenge'the- closest scrutiny. I will not stop to enumerate'them in detail, but his account of what transpired "while he was at the Blakeslee house, and his ignorance of the place and the purpose for which he was brought there, were/somewhat unnatural.

A review of jthis entire record fails to convince us that the verdict of the jury was manifestly contrary to the evidence. We are satisfied that the accused had a fair and impartial trial, and we see no reason for setting aside the judgment and sentence.