text:
    CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    June 11, 1906.]
    Winch, Henry and Laubie, JJ.
    Judge Laubie of Seventh Circuit Sitting in Place of Judge Marvin.

      J. B. Livingston et al v. Fidelity & Deposit Co.
    False Representation of President of Corporation as to Performance of Duties by Employes will Invalidate Fidelity Bond.
    When a fidelity bond states that it is a condition that the obligee’s business shall continue to be conducted and the duties and remuneration of the employes remain in accordance with the statements in the application, and the bond of the secretary of a corporation is renewed upon the certificate of the president that each of the employes named in an accompanying list had faithfully and satisfactorily performed his duties and promptly and correctly rendered his accounts during the year preceding, when as a matter of fact all the other officers had delegated their duties to the secretary, thus enabling him to conduct the business of the company in violation of law and the by-laws of the company, and cover up his defalcations, such renewal bond is secured upon false representations and is invalid.
    Error.

      Smith, Taft & Arter, for plaintiffs in error.

      Hoyt, Dustin & Kelley, for defendant in error.

      Affirmed, Livingston v. Fidelity & Deposit Co., 76 Ohio St. 253.

   HENRY, J.

This case came before this court on error on a former occasion and our decision then is reported in Livingston v. Fidelity & Dep. Co. in 27 O. C. C., 662 (7 N. S. 66), where the facts are set forth very fully. The cause was remanded for further proceedings; new pleadings were filed, and upon the trial which ensued the court directed a verdict for the defendant at the close of the plaintiff’s evidence. After judgment the plaintiffs below filed their petition in error here with a bill of exceptions exhibiting all the evidence.

Without stating the facts it will suffice to say that the blanket surety bond on a renewal of which this suit was brought, provides that the statements made in the applications for said bond and renewals thereof “shall constitute a part of the basis and the consideration of the contract.” Also that the contract is entered into on the condition that the obligee’s business “shall be continued to be conducted and the duties and remuneration of the employees shall remain in accordance’with the statements hereinbefore referred to, ’ ’ but that on proper notice to the bonding company “interchanges or substitutions among any of the employees may be made.” Some such changes were made, but the building and loan company, of which the plaintiffs are the trustees in liquidation, continued to maintain its complement of officers substantially as required by the laws of Ohio until the discovery of the defalcation of its secretary, Jacob A. Blodt. Meanwhile, however, the other officers largely delegated their duties to said Blodt, giving him charge of the company’s bank deposits and providing him with checks signed and countersigned in blank for him to issue as might be required. And the secretary of his own motion changed the company’s deposit accounts from the single depository designated by the board of directors and placed them in other banks of his own selection. All this was in direct violation of Sec. 3836-4 R. S. (Sec. 9669 G. C.), of the company’s by-laws, and of the statements and promises contained in the bond and the application therefor, with regard to the conduct of the company’s business; and knowledge of such violation must necessarily be attributed to the company.

The company, however, failed to apprise the defendant of these very material facts, by means of which Blodt gained such complete control of the business as not only to be able to perpetrate successively through a long period of time the colossal frauds of which he was guilty, but to cover the same up successfully and by cross-checks between the new depositories delude even the public accountant who annually audited the books. Blodt’s employer had, of course, no actual knowledge of his defalcation, but it would inevitably have known of, or indeed have prevented, the same if it had not knowingly permitted its other officers systematically to neglect their respective duties. Nevertheless the president solemnly certified year after year to the bonding company, in order to obtain the annual renewals of said bond, that “each of the employees named in the accompanying list has faithfully and satisfactorily performed his duties and promptly and correctly rendered his accounts during the year” preceding. And solely upon the faith of this false certificate the renewals were duly issued.

■It is undoubtedly true that bonding companies, can not claim to occupy the favored position accorded by the common law to those who become private sureties without holding themselves out as engaged in the business of suretyship for profit. But such corporations are not out-laws, and the plainest principles of justice require that they shall not be held to liability to him who has by false and fraudulent representations induced them to enter into a suretyship contract.

It is apparent from what has already been said that it can make no difference in this case whether the statements in the president’s certificates were representations that need only be true in substance and to the belief tona fide of the person making them, or warranties that must be true literally and at all events, irrespective of any bad faith. For the statements were materially and fundamentally untrue, and their untruth was necessarily known to the corporation if not to its president, since they related to the organization and general conduct of its own business.

The judgment is affirmed.

Henry and Laubie, JJ.


source: Caselaw Access Project

author: COOK, J.

license: Public Domain

text:
    MECHANICS’ LIENS
    [Cuyahoga (8th) Circuit Court,
    June 8, 1906.]
    Winch, Henry and Cook, JJ.
    Judge Cook of Seventh Circuit Sitting in Place of Judge Marvin.

      I. Koblitz & Son v. Florence Orth Duffie et al. I. Koblitz & Son v. John C. Hamilton et al.
    Mechanic’s Lien upon Several Distinct Houses and Lots can not be Foreclosed upon One Parcel Only.
    When liens have been filed upon several distinct lots and the buildings upon them, for labor performed and materials furnished for all of them, but not under one general contract concerning those buildings only, the liens can not under favor of Sec. 3184 R. S. (Sec. 8308 G. C.), be foreclosed as against one lot only.

       Affirmed no opinion, Koblitz & Son v. Duffie, 78 Ohio St. 419.

   COOK, J.

The actions are to foreclose two mechanics liens in part, and also to marshall the liens upon the property sought to be charged.

I. Koblitz & Son did a large amount of plumbing work upon a number of buildings situated upon lots fronting on Nantucket street and also upon a number of buildings situated upon Kensington street. These buildings were erected upon contiguous lots. Two liens were prepared and filed; one for materials and labor furnished and performed in doing the plumbing work upon the buildings on Nantucket street and the other for the material and labor furnished and performed in doing the plumbing work on the buildings on Kensington street. Each of these liens covered several buildings and lots on each of the streets; while the action in each case is to foreclose the lien upon one of the buildings and the lot upon which the building stands. The suit must be maintained under favor of either Sec. 3184 R. S. (Sec. 8308 G. C.) or Sec. 3184Z> R. S. (See. 8310 G. C.) for the reason that the legislature having made provision for mechanic’s liens and providing how the same may be obtained and enforced these provisions are exclusive.

It must be conceded that under Sec. 3184 (8308) the contract under which the material and labor is furnished and performed must refer to the particular lot or land upon which the building stands. The lot or land need not be designated by any particular number or description but it must be the lot or land with which the building is connected and as part of the same premises. True, there may be one or more buildings but they must be upon the same lot or land' and as part of the same premises.

In this ease each building was situated upon a distinct lot and the lot and building was complete in itself, therefore the lien necessarily should have been taken out on each building and lot. Reliance is placed on Sec. 3184 (8308). It is, however, said that the liens can be supported and are effective under See. 3184d R. S. (Sec. 8311 Gr. C.). That no doubt would be true if the contract under which the materials were furnished and labor performed came under the provisions of Sec. 3184d (8311). It will be observed that this section supplements Sec. 3184 (8308), and it provides:

“When the improvement consists of two or more buildings united together and sitting upon the same lot or contiguous lots or upon separate buildings upon contiguous lots and erected under one general contract, it shall not be necessary to file a separate lien upon each building for the work done or material furnished on the erection of such improvements.”

In order to make this section apply, the buildings must be erected under one general contract for the same. That is, the buildings must be erected under a contract that they are to be erected upon one lot. The word “general” refers to all the buildings to be erected, that is generally to the buildings, but there must be a contract in refereneeNo the particular buildings and the particular lots.

The contract shown in these cases does not refer to any particular lot or lots, or whether the lots were contiguous or not. This contract, it is true, was general, entirely too general. The contract was to do all the plumbing work for James F. Stevens at any place in the city and of all character and description, and had no particular reference to these particular lots or buildings upon these two streets, and if the plaintiffs desire to secure themselves by the mechanic’s lien it should have been taken out upon each particular lot and building under Sec. 3184 (8308). We are also of opinion that the liens being taken out upon several lots and buildings contiguous, the action to foreclose the liens should have been upon all the premises included in each lien. We can not see how the rights of parties can be worked out otherwise. Different work was done upon the several buildings; payments were made; to what did the payments apply? In the liens much work is charged for not included in the buildings and not connected with any of the buildings. To what work shall these payments be made applicable? To work not connected with the buildings or to material and work performed on the building and if to the latter, which building?

The decree will be in favor of the defendants, dismissing the petitions of plaintiffs in each case. If the intervenors desire any finding and decree upon their cross-petitions they can have the entry so provide, as we understand that there is no contention between those parties.

Winch and Henry, JJ., concur.


author: WINCH, J.

text:
    GIFTS
    [Cuyahoga (8th) Circuit Court,
    January 21, 1907.]
    Winch, Henry and Marvin, JJ.

      Katherine Deering v. Society for Savings.
    Intention of Donor to Make Gift a Necessary Element.
    Proving the delivery of a fund which was reduced to possession, without proving an intention to make a gift, does not establish a gift.
    Error.

      Affirmed no opinion, Deering v. Society for Savings, 79 Ohio St. 467.

   WINCH, J.

Plaintiff in her petition claimed the fund involved in this case as a gift.

Such being the case, it was incumbent upon her to prove all the essential elements of a gift.

She proved a delivery of the fund, which was reduced to her possession before the donor’s death. She failed to prove an intention to make a gift. The mere possession of the funds by the donee raises no presumption that the possession was acquired as a gift. Thornton, Gifts, par. 321.

When no consideration exists for the transfer of property, in the absence of explanatory circumstances, a resulting trust arises in favor of the grantor or transferor. Roberts v. Remy, 56 Ohio St. 249 [46 N. E. 1066].

The judgment is affirmed.

Henry and Marvin, JJ.


author: HENRY, J.

text:
    GAMING AND GAMBLING
    [Cuyahoga (8th) Circuit Court,
    February 11, 1907.]
    Winch, Henry and Marvin, JJ.
    Harry Bernstein et al v. Annie Groupp.
    1. Landlord of Premises Used for Gambling Proper Defendant in Action for Money Lost.
    In an action for money lost at gambling the landlord who owned the building is a proper party defendant with his tenants who operated the place where the gambling was carried on.
    2. Landlord Seeing Men Play for Lunches and Drinks Liable for Money Lost at Gambling.
    Admissions of landlord that he had seen men playing for lunches and drinks in the premises, and that he had not thereafter either served notice upon the tenants to vacate or sued them, is sufficient to sustain a judgment against him for money lost at gambling.
    Error.
   HENRY, J.

The defendants in error was plaintiff below, where she recovered a verdict and judgment against Harry Bernstein, Louis Bernstein and Maurice Christol in an action under Secs. 4271 and 4276 R. S. (Secs. 5967, 5972 G. C.), for money lost by her husband in gambling on premises occupied by the two defendants last named as lessees of the first named defendant.

The first error assigned is the alleged misjoinder of the less- or with the lessee as parties defendant. Section 4271 (5967) provides that the plaintiff in actions brought thereunder, “may sue for and recover, from the person receiving such money, thing of value, or obligation, the amount thereof, together with exemplary damages * * * and may join as defendants in such suit all persons having any interest, direct or indirectly contingent, to such lottery, policy or scheme of chance or the possible profits thereof, as backers, vendors, owners or otherwise.”

Section 4276 provides that “if any person leases premises for gambling or lottery purposes or knowingly permits them to be used and occupied for such purposes, and fail immediately to prosecute, in good faith, an action or proceeding for the recovery of the premises, such lessor shall be considered in all cases civil and criminal as a principal in carrying on the business of gaming, or a lottery in such building. ’ ’

It is urged that the liability as a constructive principle under the latter section is not to be identified with the liability of actual participants, who are suable jointly by virtue of the former section, and that the authorized joinder of defendants is limited to those specified in Section 4271. We hold, however, that the statute making a landlord, with notice, a principal, puts him in the same category with actual participants so that all may be sued jointly.

The second error assigned is that the weight of the evidence negatives the connection of any of the defendants with the gaming whereby Groupp lost his money, or with any gambling for money on the premises. There is some evidence in this behalf — much more than a scintilla — to sustain the claims of the plaintiff as against Louis Bernstein and Maurice Ghristol, and in view of this evidence, somewhat contradictory and doubtful though it be, we are unable to say that the jury’s verdict against these two defendants was unwarranted. As to Harry Bernstein, the lessor, the case might well be otherwise, were it not for one fatal admission in his own testimony, at page 92 of the bill of exceptions, where he says:

“I have seen them play cards in some of these rooms; they played for drinks, lunches, etc. That’s as far as I know.”

He further says that he never served any notice upon his tenants to get out and never sued them.

That playing “for drinks, lunches,” etc., is “gaming,” within the meaning of Sec. 4278 (5988), can not be doubted.

After knowledge of the use or occupancy of his premises for gaming purposes his failure to avoid the lease and recover the premises rendered him liable as a principal for subsequent gambling losses on said premises.

We find no error in the record and the judgment below is affirmed.

Winch and Marvin, JJ.


text:
    APPEAL — ASSIGNMENTS FOR CREDITS — PLEADING
    [Cuyahoga (8th) Circuit Court,
    February 11, 1907.]
    Winch, Henry and Marvin, JJ.
    Levi Wherry v. Edward Frolick.
    1. Pleading on Appeal from J. P. Asking More than Jurisdictional Amount Stricken from Files.
    In an action appealed from a justice of the peace, a cross-petition which asks for an amount in excess of the amount of which the justice would have had jurisdiction, should be stricken from the files.
    2. Assignment of Plaintiff during Pendency of Suit not Defense.
    An assignment by plaintiff for the benefit of creditors during the pendency of a suit is not a matter of defense and application of defendant for leave to file a supplemental answer setting up that fact is properly refused.
    Error.
   WINCH, J.

The cross-petition of plaintiff in error, defendant below, was properly stricken-off, because, the case coming on appeal from a justice court, the amount set up for the first time in the common pleas court, by cross-petition was beyond the jurisdiction of a justice of the peace. Second Nat. Bank v. Walbridge, 19 Ohio St. 419, 427; Henry Bill Publishing Co. v. Curtis, 1 Dec. 476 (7 N. P. 202).

There was no error in refusing leave to refile said, cross-petition as part of the answer.

This ruling was made at the trial. Some time before that defendant had been granted leave to answer, and his time therefor expired without his taking advantage of it. His last request came too late, and it was within the discretion of the trial judge to refuse it.

There was no error in refusing the request for leave to file a supplemental answer, setting up the fact that the plaintiff, since the commencement of the action, had made a general assignment for the benefit of creditors. Section 5012, Revised Statutes; Lowry v. Anderson, 57 Ohio St. 179 [48 N. E. 810].

The denial in the answer of the allegation in the petition that on the account sued upon “there is due and payable from the defendant to this plaintiff the sum of $257.86 with interest, ’ ’ is but the denial of legal conclusions.

The words “due and payable,” as us^d by the pleader means “owing.”

Interest arises by operation of statute and to deny that interest is due on an unpaid account, is to deny a matter of law, and not of fact.

Judgment was properly rendered on the pleadings, for the defendant in error, and it is affirmed.

Henry and Marvin, JJ.


text:
    MECHANICS’ LIENS
    [Cuyahoga (8th) Circuit Court,
    January 11, 1909.]
    Winch, Henry and Marvin, JJ.
    I. Koblitz & Son v. George Arnold et al.
    . Time for Filing Mechanic’s Liens can not be Extended by Custom of Trade as to Making Repairs.
    When the roof on a building has been substantially completed and the property sold, the purchaser making what repairs were necessary at that time, the contractor can not by making repairs to the roof ten months later, during the owner’s absence and without his consent, extend the time for filing his mechanic’s lien; and no custom of the trade by which slate-roofers repair roofs after all other workmen have finished with the building will operate to give validity to a lien filed more than ten months after such substantial completion.
    Appeal.
   HENRY, J.

In this appeal all issues have been eliminated in which the original plaintiff was interested and the sole issue presented here is upon the validity of a mechanic’s lien claimed by Auld & Conger against the property of the defendant. The defendant is the successor in title to one Stevens, who began to erect a house on the property May 15, 1899. Before it was fully finished he negotiated a sale of the property to the defendant, who, after it was fully completed, as he testifies, moved into it October 31, 1899. Auld & Conger had, and performed a contract with Stevens to roof the house with slate. Their work was substantially done before Arnold occupied the property, but in August, 1900, ten months after Arnold’s occupancy had commenced, they undertook in his absence and without his knowledge, authority, or consent, to perform the final repairs to the roof which they found to be then necessary. Thereafter they filed their mechanic’s lien October 19, 1900, some fifteen months after the substantial completion of their contract, but with the time allowed by law for such filing, if it is to be reckoned from the date of said final repairs. They invoke a custom of slate roofers which makes it incumbent upon them after once substantially completing a slate roof, to wait until the work of all other trades upon the building is completed and then to repair whatever damage may have been caused by the workmen doing such work in the meantime.

Mr. Arnold, however, testifies that he and his son examined the roof at the time they moved in and caused the only defect in the roof, which they observed, to be repaired at his expense, by the replacing of one slate, during the month of November, 1899.

We do not think that the rule of Bernsdorf & Saylor v. Hardway, 6 Circ. Dec. 171 (7 R. 378), can be applied to the facts in this case. This court in its opinion by Baldwin, J., says:

“It is intimated in this case that Auld & Conger saw that it might be necessary to secure their lien at a time when it was more than four months after September, and had, with want of good faith, made some repairs in order to put on their lien. That claim is not borne out by the evidence. There is a class of eases that hold, where a mechanic’s lien holder has made alterations for the purpose of extending the time of getting his lien, that it will not so operate. So far as the evidence shows, what they did was exactly in pursuance of the original contract between the parties.”

It is precisely in the particular thus pointed out that the case at bar differs from the decision cited. A decree will be entered for the defendant.

Winch and Marvin, JJ., concur.


text:
    NEGLIGENCE — VEHICLES
    [Cuyahoga (8th) Circuit Court,
    February 11, 1907.]
    Winch, Henry and Marvin, JJ.

       George B. Harris, Admr. v. Robert F. Williams.
    Violation of Revised Statutes and Traffic Ordinance by Negligent Driving Make Case for Jury.
    When the defendant was driving upon the wrong side of the street in violation of See. 3490 R. S. (See Sec. 6310 G. C.), and at a speed of ten or twelve miles an hour in violation of the city ordinances, and plaintiff’s intestate, a child of seven, after dodging from behind other vehicles going in the right direction, was knocked down by the front legs of defendant’s horses and killed by being run over by defendant’s wagon the question of whether or not defendant’s negligence in driving so fast that he could not stop in time to avoid running over the child was the proximate cause of its death is a question for the jury.
    Error.

      Affirmed no opinion, Williams v. Harris, 77 Ohio St. 633.

   HENRY, J.

The action below was an action for death by wrongful act. Plaintiff’s intestate, Andrew Tomasco, was a child seven years old coming home from school. While he was crossing Erie street, from east to west, at a point nearly opposite Webster street, in this city, he was run over by a team and heavy wagon, belonging to the defendant. The trial judge directed a verdict for the defendant, at the close of the plaintiff’s evidence, and this is assigned as error. Erie street runs north and south, and there are double street car tracks thereon. There is a space of about twenty-five feet from the west rail of the west track to the west curb of tbe street. Tbe team which ran over the boy was being driven north in this space, being, therefore, on the left hand side of the street. At the time of the accident, this team was being driven between other vehicles headed in the opposite direction; one was up close to the west curb; two others were in the west car track; and from between these two last the boy darted out, just in time to strike, or be struck by, the fore legs of the horse nearest him. He was knocked down by the horse, run over by the wagon and instantly killed. The driver of the wagon could not see him until he emerged from between the two vehicles on west car track. The driver was traveling at the rate of ten or twelve miles an hour, and going at that rate it is perfectly clear that he could not have stopped in time to prevent the accident after becoming aware of the boy’s peril.

Plaintiff’s case rests, however, upon the claim that the team was being driven at a negligent rate of speed in violation of Sec. 915 Rev. Ordinances of Cleveland, and on the left hand side of the road, in violation of Sec. 3490 R. S. (See See. 6310 G. C.). The ordinance forbids driving at a greater rate of speed than six miles an hour, and even this rate of speed is not sanctioned, unless it be consistent with the care required for the convenience and safety of people using the street.

It is perfectly clear that the boy was not guilty of negligence as a mere matter of law. It is also clear that if the driver of the wagon which caused the accident could not have stopped or swerved his team in time to save the boy, even though he had been driving at a rate of speed within the ordinance, and consistent with ordinary care under the circumstances, the death of the boy can not, under facts as actually presented, be considered as the direct result of fast driving. In other words, the fast driving must have been the proximate cause of the injury to the boy to make the driver liable.

It was evidently the opinion of the court below that the accident was inevitable and was not the result of the alleged fast driving, and it is undoubtedly true that the accident occurred almost instantaneously after the boy first appeared from behind the wagon.

Upon careful review of the evidence, we find ourselves unable to agree with the trial court in this regard. It seems to us that it was a question for the jury to determine whether or not, if the driver of the wagon which ran over the boy had been driving at a lawful and careful rate of speed he would not have been able to pull up his horses in time to have avoided the fatal accident. Whatever injury the boy might have sustained merely in consequence of running into, or being run over by the horses, might well have been regarded as the result of inevitable accident, but he was killed by the wagon which ran over him after he had been knocked down, and we can not say as a matter of law that he would have been killed had it not been that the driver was going faster than he lawfully might.

We think that the fact that the team was being driven on the left side of the street is one of the circumstances to go to the jury, although it does not, of itself, warrant the predicate of liability. It is also true that driving faster than the ordinance is not per se negligence, but it is some evidence of negligence, and taken together with the other circumstances already recited, the jury should have passed upon the question whether or not the driver’s conduct was negligent, and whether or not such negligence was the proximate cause of the boy’s death. The question of the boy’s own negligence would also have to be submitted to the jury in that event.

For error, therefore, in directing a verdict for the defendant, the judgment below is reversed and the cause remanded for a new trial.

Winch and Marvin, JJ., concur.


author: JONES (O. B.), J.

text:
    ADJOINING LANDOWNERS
    [Hamilton (1st) Court of Appeals,
    July, 1914.]
    Swing, Jones and Jones, JJ.
    Fritz Heimerdinger v. Charles Schneider.

      1. Lateral Support Sufficient to Maintain Building on Adjoining Lot.
    A deed of general warranty does not carry with, it by way of easement a right of lateral support sufficient to maintain the building on the lot so conveyed.

      2. Failure to Give Notice of Intention to Excavate on Adjoining Lot.
    But when the owner of an adjoining lot excavates upon it without giving notice of his intention so to do as required by Secs. 3782, 3783 G. C., he becomes liable under the common law for damages resulting to the land itself.
    Error.

      Frank E. Kunkel and Marston Allen, for plaintiff in error.

      Gordon, Morrill <& Ginter, for defendant in error.
   JONES (O. B.), J.

Plaintiff below, in 1905, purchased from defendant below certain lots abutting on Schneider avenue, east of Kirby road, upon which was situated a frame dwelling house, and also a lot 25 feet wide connecting said property with Glen Parker avenue. Defendants owned the lots between said property and Kirby road. The surface of all of these lots was considerably above the grade of both Kirby road and Schneider avenue, and in 1910 the defendant commenced to grade his lots to bring the surface down nearer to the grades of Schneider avenue and Kirby road, and in so doing caused the lots of plaintiff to slip and slide in such manner as to cause damages both to the lots and to the dwelling-house upon them. Plaintiff thereupon brought the action below to enjoin the continuance of such excavation, and to recover judgment for the damages incurred.

Upon the trial plaintiff introduced evidence tending to show that the house upon his property was permanently damaged so that it could not be repaired, and also evidence as to the value of the house before and after such excavation. And thereupon the defendant moved to strike out from the record all evidence as to damage to the improvements upon the property of plaintiff, and to withdraw from the jury all matters relating to the damage to improvements, which motion was granted by the court and said evidence ordered stricken from the record and the jury instructed to leave all damage as to improvements out of their consideration. This ruling was excepted to, and the cause proceeded with reference to damages to the land aside from the improvements thereon, and resulted in a verdict and judgment for the plaintiff for said damages.

The proceedings in error here are for the purpose of determining whether it was error in the court below to withdraw the question of damages to the improvements from the consideration of the jury.

There is no question as to the right of the owner of land to lateral support, as a property right Belden v. Franklin, 28 O. C. C. 373 (8 N. S. 159); but such property right in Ohio is subject to the terms of Secs. 3782 and 3783 G. 0., and within the terms of those statutes an owner of property has the right to make excavations on his own property after notice, in a proper and reasonable way, without liability because of the removal of the lateral support of the adjoining one.

The excavation made in the case below did not grade the lot down to the established grade of the abutting street, but the defendant below failed to show that he had given the notice required by the statute before the commencement of the excavation, and he was therefore properly held liable for the damage resulting to the land itself under the common law.

It is contended, however, by plaintiff that because the defendant had sold and conveyed to plaintiff the land, on which the house was situated, that the deed, which was an ordinary deed of general warranty, carried by way of easement a right to sufficient lateral support for the maintenance of the house in the same manner it existed at the time of such sale. We are unable to find any authority in this state to support this proposition. Had the parties contemplated such a right with its corresponding duty it would have been a simple matter to embody it in the deed of conveyance. Not having done so, it must be presumed that the conveyance was made with full knowledge of the obligations and rights fixed by the statute upon the owners of adjoining property.

We are therefore of the opinion that there is no error in the record of the case, and the judgment is therefore affirmed.

Swing and Jones (E. H.), JJ., concur.


author: MARVIN, J.

text:
    HUSBAND AND WIFE
    [Cuyahoga (8th) Circuit Court,
    January 19, 1905.]
    Marvin, Winch and Henry, JJ.

      Benjamin A. Gage, as Admr. v. Sarah A. C. Beck.
    Wife after Death of Husband may Maintain Action for Breach of Ante-nuptial Contract.
    When a husband had by an antenuptial contract, agreed to set aside a certain sum to be paid to his wife, or in the event he should not have the money then, to set aside lands of eaual value, and died intestate without having set aside either money or lands and with insufficient personal property to pay the amount, the wife, having fully performed, may maintain an action against the administrator of her husband’s estate for breach of contract.
    Error.

      Guerin & Gage, for plaintiff in error.

      Arnold Green, for defendant in error.

      Affirmed no opinion, Gage v. Beck, 76 Ohio St. 575.

   MARVIN, J.

The parties here are the reverse of their relation to the suit in the original case. They will be spoken of in the opinion as they were in the case below.

The plaintiff and Frederick T. Beck, now deceased, were husband and wife, having been married to each other on August 5, 1895, and thereafter lived together as husband and wifeuntil January 26, 1904, when said husband died intestate. The defendant is the administrator of the estate of the deceased husband.

The plaintiff presented to such administrator the claim upon which this suit was brought and demanded its allowance by him as a valid claim to be paid out of the estate of the deceased, and such claim was rejected.

On the 3d day of July, 1895, the decedent executed and delivered to the plaintiff a writing which reads as follows:

“Contract.
‘ ‘ July 3d, 1895, Fort Wayne, Ind.
“I hereby sign a contract to have set aside $2,000.00 two thousand dollars to pay Sarah E. C. Bolton if she marries me and stops with me until death separates us for my care and trouble in sickness and death besides holding her third interest in all my personal and real estate her lawful right held by me the signee. If there should not be any money left then, then shall be set aside land and deeded to her two thousand dollars worth of land now owned by me via Cleveland, Ohio, to satisfy her claim and leave her as long as she lives the use of one-third the balance of the farm; this shall give her that amount of all I do possess after the two thousand dollars is given her I set my hand and sign.
“Fredk. Thos. Beck.”

At the time of the execution of said writing said Frederick owned no land in the city of Cleveland, but did own a farm in Euclid township, Cuyahoga county, Ohio, of which county Cleveland is the county seat, and said Frederick still owned the same land when he died.

The claim of the plaintiff is that she married Frederick and fully performed on her part all the conditions required of her in the writing and that she has received no payment in money nor any conveyance of land in fulfillment of the promise made to her in said writing. The prayer of the petition is that' said adiministrator be required to allow her claim for $2,000, and interest thereon from the time of Frederick’s death, and that she have judgment against him for that amount. The case was tried in the common pleas court to a jury, resulting in a verdict for the plaintiff for the amount claimed. Motion for a new trial was made and overruled and judgment was entered on the verdict. The case is here by proper proceedings for review. A bill of exceptions containing all the proceedings on the trial is filed.

At the trial it was shown clearly, as we think, at any rate with sufficient clearness to justify the jury in finding:

First, that Frederick executed the writing.

Second, .that plaintiff performed her full duty as required by condition in the writing.

Third, that the sum of $2,000 was never set aside for or paid to her.

Fourth, that she had received no land from her husband, and that no land was set aside for her by him or by any one else on his account.

Fifth, that said decedent did not leave money or other personal estate sufficient to pay her $2,000 or any considerable part of it.

No land having been set aside by Frederick in his lifetime for the satisfaction of the promise made by him to the plaintiff, it follows that the lands which he owned at the time of his death descended to his heirs. As none of this land is described so in the contract as that any particular part can be said to have been contracted to her, it further follows that she has no cause of action against the heirs for any land, and so it follows that she is without remedy against any person whatever, if she is not entitled to recover against the administrator, and as she is by law a stranger to the real estate left by the decedent, except he be ordered by court to sell some of it to pay debts, her only recovery against him, if she can have any, is such recovery as she got in the court of common pleas.

It is said by the plaintiff in error that the suit is for breach of contract. In a sense this is true of all suits the foundation of which are contracts. In some cases the suit is for a wrong suffered by the plaintiff in not being permitted to perform the contract upon his part, and in some it is because the defendant failed to keep his promises after plaintiff had fully performed on his part. The present action is of the latter class as we view it, as much as a suit upon a promissory note would be.

Whatever may be said as to whether, however, the action is a direct suit upon the contract, or a suit for its breach in the sense in which plaintiff in error claims, the damages are absolutely liquidated. The amount lost by the plaintiff by the failure of her husband to set aside for her to be paid .her at his death $2,000 in money, or to set aside and deed or cause to be deeded to her land of the value of $2,000 was the same in either case.

Much space is given in the brief of plaintiff in error to establish the proposition that the writing was not such a contract for the conveyance of land as could be specifically enforced. With this proposition we are in full accord.

We are also in full accord with his claim that the writing can not be enforced as a will, but it does not follow from this that it has no binding force.

It is unskillfully drawn and ungrammatically expressed but we think its meaning is clear, that the plaintiff was to have $2,000 in money or land. She got neither. The only manner of giving her the benefit of the promises made to her is by judgment such as she obtained in the court of common pleas, and the same is affirmed.

Winch and Henry, JJ., concur.


text:
    INFANTS — NEGLIGENCE
    [Cuyahoga (8th) Circuit Court,
    December 1, 1905.]
    Marvin, Winch and Henry, JJ.
    Joseph Kolar, Gdn. v. Erie Ry.
    Boy of Sixteen Guilty of Contributory Negligence in Striking Torpedo.
    An intelligent boy of sixteen who has been employed in railroad shops for a period of six weeks, and who, in the course of his employment finds a torpedo upon the floor of an engine cab, which, through curiosity he struck with a coal pick, is, as a matter of law, guilty of contributory negligence.
    Error.

      Hart, Canfield & Crake, for plaintiff in error.

      Cushing & Clarke, for defendant in error.
   MARVIN, J.

The facts in this case are that on January 8, 1903, Emil Kolar, who was then about fifteen years and eight months old, was in the employ of the defendant at its round-house in Cleveland. His duties were to do odd jobs of painting and glazing. He was called a painter’s helper.

On the date aforesaid he was sent into the cab of an engine to do some repairing of windows. Upon entering the cab he noticed upon the floor three or four small round tin boxes about three-fourths inches in diameter and perhaps one-half inch in depth. He did not know what they were. He picked them up and looked at them, and then took up a coal pick which was in the tender of said engine and struck a hard blow on one of the boxes. It was in fact a torpedo, containing a powerful expíosive, such as are carried in engines to place npon the track of the railroad to give some kind of notice to employes operating trains. This torpedo upon being struck by the pick exploded and greatly injured the plaintiff’s ward, and suit was brought to recover for such injury. At the close of plaintiff’s evidence, on motion, the court directed judgment for defendant.

The petition charged negligence on the part of the defendant, and avers want of knowledge of the dangerous character of the torpedo on the part of the plaintiff. Without stopping to read from the petition, perhaps it is sufficient to state that a reading of the record in this ease, whatever effect it may have as to establishing negligence on the part of defendant, can not fail to convince one that plaintiff was very negligent, and that his negligence contributed directly to his injury, unless by reason of his youth and inexperience he is to be relieved from the responsibility attaching to one of mature years. As already said, he was at the time of the injury about fifteen years and eight months old. He had been employed in the work of the company about six weeks. He put on the first coat of paint on box cars and on new strips of wood used in repairing such cars, painted smoke-stacks, pilots, etc., he attended to repairs of windows in engines, etc. He attended school until he was near fifteen years old; he worked for his father, a mason contractor, after he left school and in the absence of his father kept the time of his father’s employes. The reading of his testimony shows that he was a boy of intelligence for one of his years. Certainly he is far from being a dullard. He did not know the character of this torpedo. Doubtless the great majority of intelligent men and women are equally ignorant about them.

The common law presumes a child over seven years of age to be able to distinguish between right and wrong in criminal matters, but such presumption is disputable until he is fourteen years old.

The rule is well settled -that a child of tender years is not to be held to the same rule of conduct as a person of mature years, but one would hardly speak of a boy nearly sixteen years old as of tender years. No definite age can be fixed which will in all cases mark the dividing line between tender years and mature years, but most of the eases which use the former term are speaking of those not more than twelve years old.

In the case of Phillips v. Michael, 11 Ind. App. 672 [39 N. E., 669], appellate court of Indiana, this language is used:

“At the age of fifteen years any child of ordinary intelligence must know that to place its hand upon a bar of iron heated to a great heat must burn, or to place its fingers between two heavy rollers, where the space is too small to admit them, must result in their being crushed. It does not require the consideration and judgment of twelve men to establish this fact. Every sensible human being knows it, hence it is declared by law to be true because inevitable. That which is inevitable is always true.”

In Nagle v. Allegheny Valley Ry., 88 Pa. St., 35 [32 Am. Rep. 413], the syllabus reads:

“An infant of the age of fourteen years is presumed to have sufficient capacity to be sensible of danger, and to have power to avoid it, and this presumption will stand until overthrown by clear proof of the absence of such discretion as is usual with infants of that age.
“When an infant’s responsibility for negligence is presumed to commence is a question of the court and not of the jury.”

In the case of Reynolds v. New York Cent. & H. Ry., 58 N. Y., 248, this language is used:

‘ ‘ In applying the rule that a person who seeks to recover for a personal injury, sustained by another’s negligence, must show himself free from fault, the law discriminates between children and adults, the feeble and the strong, and only requires of each the exercise of that degree of care to be reasonably expected in view of his age and condition.”

It was held in that case that the plaintiff’s intestate was not shown to have exercised such care. He was an intelligent boy, thirteen years old.

In Messenger v. Denver, 141 Mass., 335, a boy eight years and nine months old was held, as matter of law, to have been guilty of contributory negligence.

See, also 1 Thompson, Negligence 311, and cases cited.

In the case at bar we have a boy, an intelligent boy between the age of fifteen and sixteen years, nearer to sixteen than fifteen. In the performance of his duties he says he was required to go into this cab. He there found these boxes, and, actuated by curiosity, he took this pick and struck a heavy blow on one box, and it exploded. We think as a matter of law, that this boy must be held to have been negligent; that a boy of that age should know and should be held to know that when out of idle curiosity he seizes a pick-axe and strikes upon a box such as he found there with which he knew he had no business, and doing what he knew he had no right to do, to be held to have contributed by his own negligence to his injuries, and the court was justified in directing a verdict for defendant.

The judgment is affirmed.

Winch and Henry, JJ., concur.


text:
    CORPORATIONS — FRAUD—PARTIES
    [Cuyahoga (8th) Circuit Court,
    December 1, 1905.]
    Marvin, Winch and Henry, JJ., Concur.
    Harry S. Hill and Oliver J. Hill v. Pulaski B. Roper.
    1. When Transaction is Joint Plaintiffs are Properly Joined.
    When a fair construction of the language of a petition shows that what plaintiffs did in the transaction complained of was done by them jointly, there is no misjoinder of parties plaintiff.
    2. False Representations that Worthless Stock Sold Plaintiff is Treasury Stock not Actionable.
    No action for damages for inducing plaintiff to purchase worthless stock through false and fraudulent representations can be maintained, when the only false representation was that the stock in question was treasury stock when as a matter of fact it was defendant’s own personal stock.
    Error.

      W. U. Miller, for plaintiff in error.

      Johnson & Dunlap, for defendant in error.
   MARVIN, J.

The plaintiffs here were the plaintiffs below. The defendant here was the defendant below.

Plaintiffs filed their amended petition, and to this a general demurrer was interposed, on the ground that there was a misjoinder of parties, and also on the ground that the facts stated constituted no right of action in the plaintiffs against the defendant.

As to the misjoinder of parties, it is said as to the allegations of the petition that the plaintiffs had certain transactions with the defendant; that they purchased certain stock of him and paid money therefor; that they were defrauded in the transaction and thereby suffered damage. The claim is that it does not appear that they joined in .the transaction; that they jointly paid their money and were jointly defrauded. The language of the petition begins in these words:

“The plaintiffs for their cause of action say: that on or about June 10, 1903, the defendant sold to these plaintiffs ten shares of the capital stock of the Krastin Automobile Manufacturing Company at the rate of fifty dollars a share. That the said ten shares were a part of said stock owned and held by the defendant. ’ ’

And then follows averments that misrepresentations were made and that they were induced to part with their money, to their loss. We think a fair construction of the language of the petition shows that what the plaintiffs did in the matter they did together; that the transaction was joint as between them. We quoted from the petition,

“the defendants sold to these plaintiffs ten shares of the capital stock, etc., and again, “said defendant delivered the said certificate to plaintiffs, who paid therefor the sum of $500, ’ ’ etc.

So far as said demurrer was based on misjoinder of parties, it was not well taken. The cases to which our attention is called by brief of defendant in error are Bartgers v. O’Neil, 13 Ohio St. 72. In that case suit was brought by 0 ’Neil and wife to recover jointly for a wrong which by the allegations of the petition was affirmed and shown to have been perpetrated upon Mr. O’Neil alone. The court say as to this that a general demurrer to this petition should have been sustained because the facts alleged show no cause in the plaintiffs jointly.

The material difference between that case and the case at bar is that by the allegations of the petition it affirmatively appears that but one of plaintiffs was injured.

In Masters v. Freeman, 17 Ohio St. 323, it is simply held that, where it appears upon the fact of the petition filed by two or more jointly, that whatever claim exists in favor of plaintiffs it is several as to each. Demurrer to the joint petition will be sustained.

This brings us to a consideration of the question of whether the general demurrer should have been sustained. It was sustained in the court below, and the plaintiffs not wishing to plead further, judgment was thereupon entered for the defendant, to recover for which this proceeding is prosecuted. If plaintiffs are entitled to recover it is because defendant represented to them that something material was true which was not true, by reason of which they were induced to part with their money.

The petition says that the corporation whose stock they purchased was in need of money to finish four automobiles. There is no denial of this. It is further alleged that the company was solvent. This is not denied. It is averred that the stock was of no value and that three months or more after this transaction the company went into the hands of a receiver. A corporation may be solvent, that is, able to pay its debts, and have nothing over, so that its stock would be of no value. The petition avers that the defendant represented that the stock which he proposed to sell was treasury stock. This is denied, and the averment is made that the sale of stock was made from his personal ownings or holdings of stock in the corporation. There is nothing in this which would necessarily prejudice the plaintiffs. If the stock was of no value and is of no value, then it is immaterial whether it was treasury stock or stock owned by this man alone who was making the sale. If the stock is of no value it will be equally of no value whether it was treasury stock or stock owned by some member of the corporation.

There are no other averments in the petition which indicates that the plaintiffs were defrauded except those to which attention has been called. They aver that they were induced to part with $500 for stock of no value. There is no averment in the petition that it was represented to be of value. It was represented that the corporation was solvent and the stock treasury stock. If the other allegations of the petition are true, there was no error in sustaining the demurrer and entering judgment for the defendants.

The judgment is affirmed.

Winch and IIenrv, JJ., concur.


text:
    PARENT AND CHILD
    [Cuyahoga (8th) Circuit Court,
    December 22, 1905.]
    Marvin, Winch and Henry, JJ.
    H. L. Ambler et al v. Josephine Chapman.
    No Recovery can be Had from One in Loco Parentis for Services Performed by Child after Becoming of Full Age.
    When a child from an orphanage is taken into a home upon an agreement that she is to receive a good common school education, be cared for, and treated as a daughter: If, after she becomes of full age, she continues to reside in the family and perform the same household duties as before, without any agreement as to compensation, it will be presumed that it was a continuance of the earlier relationship and she can not recover for the value of such services.
    Error.

      McMillan <& Ingersoll, for plaintiffs in error.

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

Josephine Chapman brought her suit in the court of common pleas against H. L. Ambler, and his wife, designated in the petition as Mrs. H. L. Ambler, to recover for services as housemaid for the defendants from March 1, 1890, until March 1, 1899. No rate per week, per month, or per annum is stated in the petition, but the aggregate sum claimed is $2,064, with interest from March 1, 1899. The petition avers that this work was done at the special instance and request of Dr. and Mrs. Ambler, and that the services were reasonably worth the amount claimed.

The answer denies the allegations of the petition and also pleads the statute of limitations as to all of said claim arising prior to February 25, 1898. This suit was begun on February 25,1904.

On the trial the facts shown were that Miss Chapman entered the Ambler family on February 16, 1885, under a written agreement then entered into or attempted to be entered into by Mrs. Ambler with an organization designated as “Baldwin Place Home for Little Wanderers,” located in the city of Boston in the state of Massachusetts. This contract reads as follows:

‘‘ Agreement.
“Stroeeord, Feb. 16, 1885.
“The undersigned agree to receive into my family Josephine Chapman, born in Cambridge Mass., Dec. 29, 1874, to be treated in all respects as a daughter; is to receive a good common school education, to attend church and Sunday School and tote cared for in sickness and in health. I will not dispose of the child in any way without the consent of the officers of the Baldwin Place Home eor Little Wanderers, located in the city of Boston, state of Masachusetts. If I do not wish to retain the child, I promise to return the same to the above-named institution, within three months from this date, at my own expense. Should circumstances arise which should make my home unsuited to the wants of the child, or on proof being brought forward that the child was not properly treated or cared for, I will surrender the child to the officers of the home on their requisition.
‘ ‘ In consideration that I can have the full and entire control of the above named child until of age, I cheerfully subscribe to the above conditions.
“Mrs. H. L. Ambler.
‘ ‘ Witness: Miss Anna Morrison. ’ ’

At the time this contract was entered into the Amblers resided in the state of New Hampshire. When this contract was entered into Josephine was about 10 years and 2 months old. She became of full age on December 29, 1892. From the time she went to live with the Amblers, as above stated, she continued to live with them until about March 1, 1899, a period of about seven years. She was supported by the family during all of that time, being furnished with food and clothing and home. No claim was made on the trial that recovery could be had for the time prior to six years before the beginning of the action.

It will be noticed that under the contract Mrs. Ambler undertook to treat this girl as a member of her family; that she would give her a good common school education, have her attend church and Sunday School and be cared for in sickness and in health, and that she would treat her as a daughter.

The result of the trial was a verdict and judgment in favor of the plaintiff below in the sum of $275.60. Motion for new trial was made and overruled, and by proper proceedings the case is here on error. A bill of exceptions is filed showing all the proceedings in the court of common pleas.

The defendants below urge that the plaintiff was not entitled to recover for services rendered by her after becoming of full age unless there was an express contract between the parties that she should receive such wages. It was urged that the Amblers stood in loco parentis to this girl and that the well established rule that where a child after becoming of full age remains with the parents or with those standing in loco parentis and continues to live there with them in the same manner as such child lived with them while a minor, no recovery can be had for services on the one hand or for support on the other without an express contract to that effect.

, On the part of the plaintiff below it was urged that the evidence clearly showed that this girl had never been treated as a member of the defendant’s family in any such sense as their natural born children were treated; that, in short, she occupied the position of a menial servant during all the time she resided with the Amblers, and much testimony was introduced tending to show that the Amblers did not treat her as they treated their own children. In our view of the case, however, it was not incumbent upon them to show as a defense that they stood in loco parentis. She was not in the family of the Amblers as an adopted child under any statutory adoption or under any such contract as would constitute an adoption. The contract or writing designated an “agreement” was more in the nature of a contract apprenticeship. It did not have all the requisites of a contract of apprenticeship as provided in our statutes, See. 3118 R. S. (Sec. 8005 G-. C.), and following, but it was an agreement to take a minor into the family of Mrs. Ambler and take care of her and treat her as a daughter until she should become of full age. The child was probably never bound by this contract at all. Certainly she was not bound by it after the family removed from the state in which they were living at the time it was entered into, which they did some three years after the date of the contract, but she did remain with them; she rendered certain service to them and they furnished certain remuneration to her in the way of food, home, clothing and some small sums of money. After she became of full age she remained with them, receiving exactly such treatment and such compensation apparently from the evidence as she received before. This she need not have done, and apparently she knew that she was under no obligation to continue with them, for she says in her own testimony that Mrs. Ambler told her she was not a hired girl. She says that Mrs. Ambler told her to say to other girls, if they asked her what compensation she was receiving, that she received $4 per week; that she said this a good many times. She says that Mrs. Ambler told her that she was putting money in the bank for her, but that she made no promise as to any amount that she was putting in the bank, nor did she make any promise as to any wages that she would pay her. We think the case is one of a person who has been employed to render services for a certain compensation continuing in the employment after the expiration of the time originally agreed upon without any new arrangement as to compensation, and that, therefore, as she continued to live with the family as she had before lived with them and received the same kind of treatment and the same kind of support that she received while she was a minor, she must be held to have assented to that arrangement and consented while she remained to remain on the terms under which she lived with the family prior to her arriving at full age. Her testimony shows that her treatment after arriving at majority was just what it was before; that her support, clothing and the like were substantially as before; that she talked with Mrs. Ambler about the matter of compensation but she made no demand for any change nor did Mrs. Ambler promise any change. She saw fit, knowing her rights as she must have presumed to have known them, and indeed her evidence shows that she did know them, to remain with her former employers, receiving what she had before received. By this she must be bound, and it was error on the part of the court not to overrule the motion for a new trial, on the ground that the verdict was not supported by the evidence, and for that reason the judgment is reversed.

Winch and Henry, JJ., concur.


text:
    WITNESSES
    [Cuyahoga (8th) Circuit Court,
    March 23, 1907.]
    Winch, Henry and Marvin, JJ.

       Harry St. Clair Hathaway et al v. John H. Farley et al.
    1. Qualification of Witness as Expert Based on Whole Testimony.
    Although the preliminary examination of a witness may not qualify him as an expert, all of his testimony in chief together with the facts brought out on cross-examination may have that effect.
    2. Exclusion of Hypothetical question Answerable in but One Way not Erroneous.
    When a hypothetical question is so framed that it could only be answered in one way and the jury without any assistance from an expert would know that it must be answered in that way its exclusion is not prejudicial error.
    3. Hypothetical Questions as to Testator's Mentality Asked only of Expert.
    Hypothetical questions as to a testator’s mental condition can not be ashed a witness who is not an expert, even upon cross-examination.

      Arnold Green and J. P. Pawley, for plaintiffs in error.

      Higley & Maurer, F. W. Langin and T. H. Hogsett, for defendant in error.

      Affirmed no opinion, Hathaway v. Farley, 76 Ohio St. 562.

   MARVIN, J.

The suit was brought in the court of common pleas by certain heirs at law of Charles Hathaway, deceased, to have set aside and held for naught a certain paper writing, purporting to be, and duly admitted to probate as, the last will and testament of said deceased. Said writing will hereafter be spoken of in this opinion as the will of the deceased. The ground upon which it was sought to set aside the will was that the testator, at the time of its execution, was wanting in testamentary capacity. The result in the common pleas court was a finding and judgment that this writing was the will of the deceased, and error is prosecuted here to set aside the judgment. The original will was executed on December 8, 1896, at a time when the testator was about 75 years of age, and codicil to such will was executed on February 4, 1897. A bill of exceptions is filed here which it is agreed does not contain all the evidence introduced in the case, but which, it is claimed on the part of the plaintiffs, presents errors for which the judgment below should be reversed. These alleged errors occurred chiefly upon the rulings on the admission of evidence.

One of the witnesses examined on the part of the proponents of the will was Dr. A. B. Howard, who testified as appears on page 561 and following of the bill that he was superintendent of the Cleveland State Hospital, and had been such for six years last past; that prior to that he was engaged at a private institution for mental diseases at Cuyahoga Falls for six years; that he became acquainted with the testator in 1895, at a time when a son of the testator was a patient in the institution over which he had charge at Cuyahoga Falls; that this son died in 1897; that during two years he frequently met the testator, and that after the death of the son he met him two or three times within the three months next after such death, and that he saw no evidence of mental unsoundness. On cross-examination Dr. Howard testified that he had charge of the institution at Cuyahoga Falls, but he nowhere testified in direct terms that he was a physician, and that he had given special attention to the treatment of mental diseases. However, he is addressed constantly as Dr. Howard, and among other questions asked him on cross-examination is this:

“Q. And isn’t it true, doctor, that within your experience, long and extensive as it is, that you have known of patients and people who are insane to a marked degree, that were exceedingly acute when it came to the operation of the mind on certain subjects, and that they would display great mental acuteness and alchemy ? ’ ’

To which the doctor answered: “Yes, sir.”

Other questions of this sort were asked of him, so that although the questions asked upon the direct examination did not distinctly bring out that his connection with the two hospitals of which he spoke was that of chief medical officer, yet we think it fair to say that Dr. Howard’s testimony was such as to entitle the parties to consider him as a medical expert on the subject of insanity.

On the part of the plaintiffs it is claimed that there was error in the exclusion of answers to the following questions, asked of Dr. Howard by counsel for the defendants:

“Q. Supposing the ancestors, the mother of an individual to have lived to a healthy old age, to upwards of eighty years of age, strong and vigorous, physically and mentally, up nearly to the last, and that the parent on the other side, the father, was afflicted with insanity,and incarcerated in an insane asylum; that afterwards you find another member of the family, a sister’s daughter, afflicted with the same complaint; afterwards you find the son of the individual to whose attention I am calling your mind, afflicted with insanity, and dying in an insane asylum, from which side would you say that the person had inherited that malady; if it were inherited?”

The objection to this question was sustained.

Then followed this question :

“Q. Does a person born of insane parents more naturally tend to insanity than one born of healthy minded parents?”

An objection to this question was sustained.

As to the first of these questions, it would seem that no error could be possible by the exclusion of an answer to the question. It is assumed in the question that one of the parents of the party under consideration was insane; that a descendant of the same parent was also insane; that the other parent was perfectly sane all of her life, having lived to a good old age, and it is further assumed that the insanity asked about was inherited from somebody, and the question is from which parent was it inherited ?

Since it is shown by the question that the party inquired about had inherited insanity, and that but one of his ancestors had any such insanity that could have been inherited, it would seem to follow that but one possible answer could have been given to the question, and that the jury without any assistance from an expert would know that if one .parent had a heritable thing and the other parent had no such heritable thing which the party had inherited and which the one parent had and the other had not, he must have inherited it from the one who had it. As to the second of these two questions, several reasons seem to us sufficient to justify the ruling of the court, most of which reasons apply as well to the first of these questions as to the second. We think a sufficient answer as to both the questions is that in neither case did the counsel asking the questions make any statement as to what it was expected the answers would be. If it be said that this was not required because the questions were asked in cross-examination, that seems to be fully answered by the ease of Bean v. Green, 33 Ohio St. 445, where it is said that the proposed question which indicates the matter proposed to be proved was not proper cross-examination. The rule which requires a showing as to what answer is expected in the case of a direct examination is equally applicable to such cross-examination. Neither of the questions now under consideration was a proper cross-examination of any examination which the proponents of the will admitted of Dr. Howard. He was not questioned by them as an expert, but only as any witness might have been examined as to what he had seen in the conduct of Mr. Hathaway.

Another reason why the defendants were not prejudiced by the exclusion of the answer to this last question is shown by a question which had been answered by Dr. Howard immediately preceding the rulings complained of. That question was as follows:

“Q. Doctor, is there such a thing known to the medical profession as hereditary insanity?”

The answer was “Yes, sir.”

So that not only was the court justified in excluding the answers to each of these questions, but as to the second one, even if there was error in such exclusion, the defendant had obtained by the question and answer last quoted, all that they could have expected by any answer to the second of which complaint is made.

On page 348 of the record, Mrs. Sarah Hathaway Robison, a daughter of the testator, testified that her grandfather Hathaway had been insane; that one of her brothers had been insane, and that a cousin of her’s had been insane; that all of these parties had been patients in hospitals for the insane.

Mr. Frank DeHaas Robison, the husband of the witness last before spoken of, testified that the testator had told him, that his, the testator’s father, had been in an insane asylum.

The court said to the jury that this evidence given by Mrs. Robison and by Mr. Robison should be excluded from their consideration.

As to the testimony of Mr. Robison there can be no doubt that the court was right in taking such testimony from the jury as bearing upon the question of the insanity of the testator’s father; but we think that the court was wrong in excluding the testimony of Mrs. Robison on this subject. But that wrong was, as we think, righted by what the court said, as appears on pages 755 and 756 of the record. The court here said to the jury, speaking of these rulings, I will leave “such proof as has been offered and which I have once ruled out for your consideration, and give it such weight that you, under the instructions of the court, find it entitled to receive as bearing upon the question of the mental capacity of Charles Hathaway, Sr., at the time of the making of the will, and of the making of the codicil, as you will find it entitled to receive in determining that question.”

Bearing in mind that this testimony had been given to the jury and that it was not until some days afterwards that the court had said to the jury that it was to be excluded and then coming to this statement of the court made to the jury, we think that the plaintiffs received all the benefit which they were entitled to receive from the testimony of Mrs. Robison and indeed were permitted to consider what we regard as incompetent testimony given by Mr. Robison.

Complaint is made of the ruling of the court as appears on page 49 of the bill of exceptions, where this question was asked of Mr. Harry St. Clair Hathaway, a grandson of the testator:

“Q. Well, the family of Charles Hathaway, Sr., including yourself, where did they meet, if at all, on holidays such as Thanksgiving days, Christmas days and birthdays of members of the family, including the birthdays of Mr. Hathaway, Sr.?”

The court sustained an objection to this question.

The next question propounded was permitted to be answered, and that question and answer are as follows:

“Q. Do you know where, if anywhere, he spent his holidays, that is Charles, Sr., such as Christmas day, Thanksgiving day, and birthdays, that is, after you came here in 1888 or 1889 ?
“A. Almost every birthday of grandfather, and almost every Christmas during that period, up to his death, I was present with grandfather in the home of Frank DeHaas Robison,, first at 648 Superior street, and later at G-lenville.”

And later on, speaking of these holiday gatherings this question was asked of this witness:

“Q. And who would be there on these occasions?”

To which he answered:

“A. I would be there, Alfred, George, when he lived here, and all the family, with the exception of Nellie Johnson.”

We do not undertake to say whether there was anything material or not in this question or answer, but surely all that could have been obtained by an answer to this question was obtained by an answer to the preceding question, so there was no prejudice to the plaintiffs in the ruling complained of.

One Walter D. Sayle, who was not an expert, called by the plaintiffs, had testified that he was acquainted with the testator; that he transacted business with him, and that he regarded him as competent to transact business during the entire time that he observed him, and that from what he saw and knew of him he regarded him as of sound mind. This evidence was perhaps a surprise to the parties calling him, and upon re-examination of this witness this question was asked of him:

“Q. Supposing Charles Hathaway, Sr., in the early part of his life should be married to an estimable wife with whom he lived and raised a family of children in the city of Philadelphia, concerning whom he held the greatest feeling of friendship and affection; that he had purchased a cemetery lot in the city of Philadelphia which is visible upon the photograph which I show you, and then afterwards he entirely forgot that lot, so that at the time you were talking with him he had forgotten that he had that cemetery lot in Philadelphia, would that change your opinion as to his being of sound mind?”

Upon objection made by the proponents of the will to this question, the objection was sustained.

This was followed by a similar hypothetical question to the same witness, and it should be said that evidence had been given tending to show some, perhaps all of the assumed facts in the question; notwithstanding which, we think, the ruling of the court was clearly right.

We are not aware of any ruling which will permit the asking of such hypothetical question to one not an expert, and in the case of Hayes v. Smith, 62 Ohio St., 161 [56 N. E. 879], it is clearly held that such questions can not be asked.

One John Koch was called as a witness on the part of the plaintiffs and testified, that he was acquainted with the testator, and showed such acquaintance with him as to make his opinion admissible as to whether or not from what he had observed, Mr. Hathaway was of sound mind. Then this question was asked him:

“Q. Now Mr. Koch, during the latter part of his life you may state, what; if anything, you observed of the conduct and speech of Charles Hathaway, Sr., indieating a lapse of memory.”

The objection to this question was sustained.

There was no statement made as to what answer was expected, but on page 198, this question was asked of him and he was permitted to answer it:

“Q. You may state what you observed, your own observation of him, beginning with what you first observed and relate the incidents that occurred, as near as you can, down to the time that I have mentioned.”

To this, he answered:

“A. In 1887, at the time Mr. Hathaway was president of the St. Clair Street Railroad, there arose a controversy about the paving of St. Clair street, in wbieb there was an investigation and Mr. Hathaway was called as a witness; at that time he stated that I was the owner of stock in the St. Clair Street road.”

He then follows with a statement that he was not at that time the owner of stock in the St. Clair Street road, that Mr. Hathaway explained to him afterwards that a mistake was made, because he confused his ownership in the St. Clair Street road with his ownership in the Superior Street road, in which last named road, or rather in the street railroad operating on the last named street, he was an owner of stock.

From this it appears that all that could have been obtained from Koch by an answer to the question to which the objection was sustained was obtained in answering the latter question, and so no prejudice resulted to the plaintiffs.

While Frank DeHaas Robison was upon the stand on the part of the plaintiffs he was asked:

“Q. What, if any change did you observe in Charles Hathaway, Sr., after the death of his son, Charles, and after his becoming insane, and after his death?”

The question -is not very clear, but presumably it meant after Charles Hathaway, Jr., became insane, and after the death of Charles Hathaway, Jr.

This question was objected to by the defendants, and that .objection was sustained, and it was stated on the part of the plaintiffs that if the answer was permitted, it was expected that the answer would be, that he became moody, would sit brooding by himself for some time and became fretful and morose.

Perhaps the answer should have been permitted. Indeed we think it should, but no error came to the plaintiffs by the ruling on this question, because of the action of the court in permitting an answer to a similar question, as appears on page 411 of the record. That question reads:

“Q. After Charlie lost his mind and was taken to Cuyahoga Falls, what was there in the conduct of Charles Hathaway, Sr., that drew your attention particularly to him, state as fully as you can. Describe and tell what you observed up to the time of the making of the will,- September, 1896?”

The answer given, is as follows:

“A. He would come into the office to tell me something and in the middle of a sentence he would forget what he was talking about, and he would often ask me what he had said to me. He would repeat the same thing to me as often as four or five times during the morning. ’ ’

Similar answers were made later on by Mr. Robison in answer to similar questions.

Besides the hypothetical question put to Mr. Sayle already discussed in this opinion, similar hypothetical questions were put to other non-expert witnesses, and upon objection of the defendants', answers were excluded.

What has been said in reference to the ruling of the question put to Mr. Sayle applies with equal force to the ruling on these questions, and nothing more need be said on that subject.

We find nothing, in our examination of this case, which would justify a reversal of the judgment of the court of common pleas, and such judgment is affirmed.

Winch and Henry, JJ., concur.


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    LANDLORD AND TENANT
    [Cuyahoga (8th) Circuit Court,
    February 23, 1907.]
    Marvin, Taggart and Donahue.
    Judges Taggart and Donahue of Fifth Circuit Sitting in Place of Judges Winch and Henry.
    Isaac Brudno v. Jennie F. Miller.
    Landlord Liable to Tenant for Injury Caused by Explosives of Another Tenant in Adjoining Building.
    When a landlord knows, or ought to have known, that a tenant is engaged in the manufactúre of dangerous explosives, and rents adjoining premises to plaintiff as a residence, representing the business carried on in the adjoining building as of a harmless character and of a totally different nature from that which he knows it to be, he is liable for damages to plaintiff caused by an explosion in the adjoining premises.
    Error.
   MARVIN, J.

Jennie F. Miller brought suit against Isaac Brudno for injuries which she sustained on May 2,1903. At that time Brudno was the owner of real estate in this city fronting on Case avenue, and also on Orange street. On the Case avenue front were some old buildings, at the rear of which he erected an apartment house, and on the Orange street property was an old building on the Orange street front, which was used as a factory for the manufacture of torpedoes, such as children use for Fourth of July celebrations. Mrs. Miller became a tenant of this property on April 27, 1903; that is, she became a tenant of the apartment house by taking or renting a suite of rooms in it. The apartment house is situated but a few feet from the torpedo factory. On May 2, an explosion occurred in the torpedo factory which wrecked the building in which Mrs. Miller was a tenant and by which she received bodily injury.

Thereafter, Mrs. Miller instituted an action against Brudno, charging that he maintained a nuisance in this factory; that is to say, that he carried on a dangerous business in the factory, and she charged also that she was induced by the fraud and deceit of Brudno to lease the apartment which she did lease in the apartment house, and that fraud and deceit, she says, existed in his representing to her that the business there carried on was the manufacturing of candy. .

Brudno denied that the factory was a nuisance or that the business was in itself dangerous; that is, he made a general denial, after admitting the ownership of the property and the explosion; but he shows that he purchased this property where the factory is, the fall before the explosion occurred, and he erected the building in which Mrs. Miller became a tenant shortly before she moved into the suite which she had rented of him, so that the building was quite new at such time. The deed to the property on which the factory was, he received, as I remember, in January, 1903, and prior to that time he had had a preliminary conversation, of course, with the owner of the property, and had been notified by him that the Thor Manufacturing Company were carrying on a business in this factory and that they must be permitted to remain, or ought to be permitted to remain, and he agreed that they might remain, if he could arrange with them on the terms which he desired, or that would be satisfactory to him. But he says that he had no thought that the business was a dangerous business and that he did not know what the business was.

Upon the trial the evidence on the part of the plaintiff was, first, there was no question about the explosion taking place, as charged, and that the plaintiff was injured by the explosion, for when the explosion took place in this factory it was a very forcible explosion and injured the buildings around and injured this woman. But the men who carried on the business, known as the Thor Manufacturing Company, to-wit, one Silas H. Cole, and one Joseph G-. Raquette, say they did not know that the business was dangerous, and they give the ingredients used in the manufacture of these torpedoes, the ingredients being sulphur, potash, sand and a glutinous substance, the name of which I do not recollect, none of which ingredients in and of itself is an explosive substance, and it is urged that it was not known that the combining of these ingredients in any particular ratio would result in making the substance thus made up of these ingredients an explosive substance. But upon that the evidence is that the very purpose of the manufacture of these torpedoes for the use for which they were to be put, or known to be put was, that they would explode in coming in contact with a hard substance. They are those torpedoes we have seen boys use in connection with canes made for the purpose, to strike upon the sidewalk when celebrating the Fourth of July, and so it was known that these ingredients, when combined, would produce a substance that would explode and though they may not have known what the chemical result of the combining would be, yet that they did know that under certain conditions it would be explosive, is very apparent, so that one might well conclude that if the small pellets which were made for the use above referred to in connection with Fourth of July celebrations would explode with a loud noise, that in greater quantities the explosion would be greater. But Mr. Brudno says that he did not know even what the business was. But he was often near the factory and about the factory. Perhaps I ought to say before I come to this, that the agreement made between the party then owning the premises and Brudno was not a distinct and definite agreement that the Thor Manufacturing Co. was to remain there under any lease with the vendor, but they were to remain there for the summer, if the terms could be agreed upon between Brudno and the Thor Manufacturing Co., which were satisfactory to Brudno, and they did carry on their business during that following summer, and there was an interview in the court house, or perhaps two or three, between the parties, with the result that the company might remain, there at $25 a month, although under an agreement with their previous owner, the amount was much less. And, from January 1, 1903, they paid rent to Brudno at the rate of $25 per month, but Brudno says he did not know what their business was, and he made no effort to find out.

The evidence of Cole and of his partner Raquette is, that they exploded some of these torpedoes every day in the factory to see if they exploded right, and that Brudno was (Raquette says), in the factory a good many times, but he is not sure that they ever exploded any in his presence. Brudno says that is not true.

Mrs. Miller, the plaintiff below, and a Mrs. Cooper testified that on the day that Mrs. Miller rented these apartments they went together to the apartments, that they met Brudno on Orange street, and they gave the direction in which they traveled to reach the apartment house. To do that, they passed by the factory, and they say that they then saw these little pellets, which are explosive, some of them lying out to dry; at'least out in the sun, and Mrs. Miller says she asked what business was there carried on, and that Brudno said, “it is a candy factory.” Mrs. Cooper says that Mrs. Miller asked her what the business was, and she said, “it looks like candy,” and that Brudno said, “Yes, it is a candy factory.”

If that is true and the jury believed that to be rue, it is some evidence tending to show that Brudno knew that there was something carried on there that he did not want to tell about. For, if he knew nothing about it then he would not be justified in saying that it was a candy factory and if he knew what the business was, he was telling an untruth when he said that it was a candy factory, which tended to show that there was something there or some business carried on there that he did not want to disclose. But, it is said that it can not be true, that is the story told by Mrs. Miller and Mrs. Cooper, because there was a fence wbicli obstructed their view of these pellets, a high fence that was between them and the factory, and they could not see these pellets, which they testify they were told was candy; and it is true that there was a fence there, which they passed to go over to the building in which the apartments were; at least the evidence is pretty strong that that fence was there. But the jury evidently believed that whether there was a fence there or not, these women had the talk they say they had with Brudno, and he told them that there was a candy factory being carried on there, and they believed, from the evidence, that he had knowledge of what the business was that was carried on there. It is said, however, that since this was not known to be a dangerously explosive substance that he (Brudno) ought not to be held responsible, but that if he knew that it was an explosive substance in small quantities, it would produce more noise than is produced by these torpedoes, it was evidence that ought to have put him on his guard, if he knew that much about it, to find out whether in larger quantities it would be dangerous. The court gave the jury a perfectly fair charge as to the defendant below, guarding his rights so well that complaint is not made of what the court said, and we think the jury might well have reached the conclusion that they did, that this was very dangerous business, and that torpedoes were made at that factory for the purpose of exploding, and a knowledge of these facts was sufficient to put upon guard the owner who rented the premises immediately adjacent to this factory, and we believe if they did, that they might well have believed the story of Mrs. Miller and Mrs. Cooper, that Brudno representing it to be a candy factory indicated that he intended and that he recognized there was that about the business which he would not disclose, or did not want to disclose.

We find no error in the record of this case, and the judgment is affimed.

Taggart and Donahue, JJ., concur.


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    HUSBAND AND WIFE — MORTGAGES
    [Cuyahoga (8th) Circuit Court,
    January 14, 1907.]
    Marvin, Winch and Henry, JJ.
    Edwin R. Date v. Joseph P. Imhof et al.
    1. Doctrine of Subrogation Applies when Wife Pays Debts of Husband to Protect Her Own Rights.
    When a wife who is a joint owner with her husband of property and has with him executed a joint note and mortgage upon the property, pays the note and mortgage to protect her interest in the property, she is thereby subrogated to the rights of the mortgagee.
    2. How Homestead Rights in Property Owned Jointly by Husband and Wife Determined.
    When a husband is the owner of a three-eighths interest and his wife the owner of a five-eighths interest in property from which it is impossible to set off a homestead by metes and bounds, the rights of the parties must be worked out under Sec. 5439 R. S. (Sec. 11735 G. C. et seq.), the rental value of the property appraised, and if it exceeds $100 per annum, then three-eighths of the excess above that sum will be subject to the demands of the husband’s creditors.
   MARVIN, J.

Joseph P. Imbof is a bankrupt; Eva is his wife; Edwin R. Date is the trustee in bankruptcy of the estate of the said Joseph P. Imhof. This suit is brought by the trustee for the purpose of setting aside a certain deed made by the said Joseph to the said Eva, through the instrumentality of the trustee. Prior to October 23, 1901, the said Joseph P. and Eva Imhof had purchased a house and lot, which from the time of said purchase up to the present time, has constituted their family homestead. They are residents of Ohio, and during all the time since the purchase of said homestead, have been living together as husband and wife. At the time the home was purchased there was paid on the purchase price out of the money owned equally by the two parties, the sum of $1,000; the balance of such purchase price, viz., $700, was secured by a mortgage for that amount, executed upon this property by the said Joseph and Eva. . On said October 23, 1901, Joseph conveyed his interest in said property by deed, to a trustee, who on the same day conveyed the same to the said Eva. There was no valuable consideration for these conveyances. At the time of such conveyance Joseph was in debt to such an extent that he did not have sufficient property, after such conveyance, to pay his debts. Subsequent to the conveyance of Eva, and while the legal title to the entire premises was in her, there was paid of money belonging to the two, the sum of $200, on the debt secured by said mortgage. Thereafter the said Eva paid the remainder of said mortgage debt, amounting to $500. This she paid partly with money borrowed by her from her son, and partly with money borrowed by her from a friend. By so paying said mortgage the said Eva, if the title had still remained one-half in her and one-half in her husband, would have been subrogated to the rights of the mortgage to the extent of one-half of such payment; that is, to the extent that in so paying said sum she paid one-half thereof upon the debt of Joseph, secured by the mortgage.

In the case of Warner v. York, 25 O. C. C. 310, 316 (1 N. S. 73), this court said:

“Authorities are numerous, that where a grantor pays all or a part of a mortgage debt the payment of which is in terms assumed by the grantee of the mortgagor, such mortgagor is subrogated to the rights of the mortgagee in the mortgage to the extent of such payments.”

The authorities cited in support of the proposition are: Sheldon, Subrogation, Sec. 3; Kinnear v. Lowell, 34 Me., 299; Henson v. Reed, 71 Tex., 726 [10 S. W. 522]; Baker v. Terrell, 8 Minn., 195.

In the syllabus of the last named case, this language is used:

“A mortgagor who conveys the land subject to the mortgage and who afterward, even voluntarily, pays the mortgage debt, is entitled to be subrogated to the rights of the mortgagee against the land. ’ ’

Again this court said in the same case:

“Where the vendee of mortgaged premises assumes the payment of the mortgage debt, the relation between him and the mortgage is that of principal and surety.” Citing numerous authorities in support of the proposition.

Again it is said in the same opinion:

“A surety being required to pay the debt of his principal is subrogated to the rights of the creditor in any securities pledged for the payment of the debt.”

In the case of Ohmer v. Boyer, 89 Ala., 278 [7 So. 663], this language is used in the syllabus:

“2. Subrogation or equitable assignment of mortgage on payment by assignee of equity of redemption. — Lands being conveyed by the husband on a nominal consideration, besides love and affection, in trust for the wife for life, with remainder in one-half to the heirs or devisees of each of them respectively, and the lands being at the time subject to an outstanding mortgage executed by the husband, the wife has a right to pay off and discharge the mortgage, for her own benefit and protection, either before or after her husband’s death; and such payment being made by her after his death, by allowing the mortgagee to retain and appropriate the rents, she is entitled, as against the heirs of the husband or any one claiming under him, to be subrogated to the rights of the mortgagee, or to stand as an equitable assignee of the mortgage.”

In Cole v. Malcolm, 66 New York, 363 [7 Hun. 31], it was held that the doctrine of subrogation applies where a party is compelled to pay the debt of a third party to protect his own rights or to save his own property.

This was clearly the ease here. The property of Eva was mortgaged for the payment of this debt, one-half of which was owing by her husband. The property was liable to be sold upon foreclosure of this mortgage. To protect herself she would have been compelled, if suit had been brought to foreclose, to have paid off the mortgage, for the purpose of saving her own interest in the property, and surely she could as well protect herself by paying the mortgage before suit was brought, as to wait until suit was brought, when she would be compelled to pay both the debt and the costs in court in such foreclosure proceedings.

The conveyance by Joseph to his wife, being without any valuable consideration, as between Eva and the creditors of the said Joseph, was void, but the fact of such conveyance did not deprive Eva of her right to be subrogated to the rights of the mortgagee to the same extent as she would have been entitled to be subrogated if the legal title had not already been conveyed to her. The legal title being in her at the time of her payment of this debt, her equitable right to be subrogated was merged in her legal title, so that her ownership of the property, as against the creditors of Joseph, was represented by the one-half which she owned before Joseph conveyed to her, and the $250 which she paid for Joseph on the mortgage debt.

From the evidence we find the value of the property to be $2,000. It follows that the ownership of Eva, as against the creditors of Joseph is twelve hundred and fifty two thousandths of the property. This fraction reduced to its lowest terms is five-eighths. The equitable ownership, therefore, in Eva was five-eighths of the entire property, leaving Joseph the equitable owner of three-eighths of the entire property.

. As has already been said, this property is the homestead of this husband and wife and their family.

It is claimed on the part of the plaintiff that since Eva is the owner of a fractional part of this homestead, it must be held that she is the owner of a homestead, and that, therefore, there can be no homestead exemption out of the equitable ownership of Joseph. If this be so, it is because Eva being the owner in common with her husband of a homestead property, she is to be held to be an owner of a homestead. If this be so, it is manifest that the ratio of ownership between the two could cut no figure, and if her ownership were but one-eighth instead of five-eighths of the entire property she must still be held to be owner of a homestead.

Indeed if instead of one-eighth her ownership was but one-fiftieth of the entire property, she must be held to be the owner of a homestead, and so no exemptions could be claimed by either her or Joseph in his interest in the property.

This is manifestly unjust and would seem to be absurd.

We are impressed with the soundness of much of the reasoning of Judge Blandin in the case of Prosek v. Kuchta, 9 Dec. Re 129 (11 Bull. 65).

Although we reach a conclusion less favorable to the wife than was reached in that case, we think, however, it is clear that the wife here can not be said to be the owner of a homestead. The two together are the owners of a homestead, and it is provided in Sec. 5436 R. S. (Sec. 11731 G. C.), that husband and wife living together, may claim a homestead exemption. Here they may be then claiming it out of their joint property. This joint property, as has already been said, consists of a home worth $2,000, of which the wife is the owner of five-eighths.

It is manifest that no homestead can here be set forth to anybody by metes and bounds, and so the rights of the parties must be worked out under Sec. 5439 E. S. (Sec. 11735 G-. C. et seq.), which provides that: In case a homestead can not be set off by metes and bounds, the rental value of the property shall be appraised and the rent ‘ ‘ over and above one hundred dollars shall be payable in quarterly payments, commencing three months from the time of the levy of the execution.”

Since the wife is the owner of five-eighths of this property, it is manifest that that fractional part of the rent can not be applied in payment of the husband’s debts. This results in holding that the rental value of this property shall be appraised in pursuance of the provisions of Sec. 5439 E. S. (Sec. 11735 G. C. et seq.), that the annual rental shall be appraised, and if such rental exceeds $100, then three-eighths of such excess shall be subjected to the payment of the debts of Joseph, and therefore shall be paid to the plaintiff in this action, and a decree shall be entered accordingly.

Winch and Henry, JJ., concur.