text:
    ATTACHMENT.
    [Cuyahoga (8th) Circuit Court,
    May, 1909.]
    Northern Ohio Gas Appliance Co. v. H. H. Hallett.
    Winch, Henry and Taggart, JJ.
    Judge Taggart of the fifth circuit sitting in place of Judge Marvin.
    Attachment Lies for Commissions On Sales.
    An attachment will lie on the ground that the claim is for work: and labor, when it appears that the attaching creditor’s claim is for commissions under an arrangement whereby plaintiff was to he allowed a certain percentage in sales made by him, although he had no employment requiring him to devote any part of his time to the business of making sales.
    Error.

      John H. Smart, for plaintiff in error.

      White <& Grosser, for defendant in error.
   WINCH, J.

The sole question in this cause is whether an attachment will lie on the ground that the claim is for work and labor when it appears that the attaching creditor’s claim is for commissions under an arrangement whereby he was to be allowed a certain percentage on sales made by him, but had no employment requiring him to devote any part of his time to the business of making sales.

We see no reason why an attachment should not be allowed in such cases; the work performed in making the sales on which the commission was claimed need not be compensated by fixed wages in order that the claimant may have an attachment. Such was the ruling in the case of Lewis v. Dawson, 3 Circ. Dec. 436 (6 R. 243), where a manufacturer’s agent employed on a salary of $20 per month and five per cent on all sales made by him, was held to be entitled to a preference as to his claims under S >e '3206a Rev. St. (Secs. 8389 G. C. et seq.), providing that laborers ■and employes shall first be paid when their employer becomes insolvent, and an assignee, receiver or trustee is appointed to administer his estate.

So the federal courts have held that one who works by the piece is entitled to priority under the bankruptcy act which provides that “wages” due workmen for services, earned within three months before proceedings in bankruptcy, shall be paid first. ■ Gurewitz, In re, 121 Fed. 982.

It is generally conceded that if an architect also superintends the construction of a building, and the drawing of plans and superintendence are both parts of one contract, he may have a lien to secure him both for his superintendence and the preparation of plans. Treadway & Marlatt, Mechanics’ Lien Law, Sec. 35, and cases cited. It will be remembered that architects are usually compensated for their services on a percentage basis.

The mechanic’s lien law is for the benefit of those who perform work or labor.

The analogy of the case at bar to the cases cited is apparent enough to justify the conclusion that the same rule should be applied in all of them upon the contention here involved.

Judgment affirmed.

Henry and Taggart, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    BILLS AND NOTES — HUSBAND AND WIFE.
    [Cuyahoga (8th) Circuit Court,
    June 7, 1909.]
    Winch, Henry and Marvin, JJ.

      Cleveland Dredge & Dock Co. v. Margaret K. Smith et al.
    1. Endorsee In Due Course, But Without Consideration, May Recover.
    Payment of a note at maturity to the payee thereof, without requiring a surrender and cancellation of the note, will not prevent recovery on the note by an endorsee in due course, although no consideration for the transfer of the note to the en-dorsee appears.
    2. No Presumption Of Fraud Attaches To Contract Relations Of Husband and Wife.
    Although in transactions between husband and wife, their conduct towards each other is to be scrutinized in the light of the general rules which control the actions of persons occupying confidential relations to each other, that does not warrant a charge that the relationship of husband and wife is such as to afford every facility for fraud.
    Error.

      Kline, Tolies & Morley, for plaintiff in error.

      H. H. Johnson and S. L. Peeke, for defendants in error.

      Affirmed, no op., Cleveland Dredge & Dock Co. v. Smith, 84 Ohio St., 482.

   WINCH, J.

In the original action in the common pleas court Margaret K. Smith recovered on three promissory notes executed and delivered by plaintiff in error in April, 1905, to her husband, L. P. Smith, and by him endorsed to her; these notes were renewals, of three several notes of like amounts executed and delivered by said company to said L. P. Smith in April, 1904, which likewise bear an endorsement to the wife. The company admitted the execution and delivery to L. P. Smith of the notes sued upon, but claimed payment to him of the full amount therefor by the issue to him of stock of the company, and alleged that he neglected to deliver the notes to the company and endorsed them to his wife after maturity; that the wife paid no consideration for the notes and at the time of receiving them was fully advised of their payment.

Errors in ruling on evidence are alleged to have occurred, on the trial. We have examined all the exceptions called to our attention, but we find no errors in that respect prejudicial to the rights of the plaintiff in error.

Errors in the instructions of the court are claimed which require an examination of the evidence upon which the judgment rests, for the court, in effect, charged that there was no evidence that the notes were transferred to Mrs. Smith after their maturity or that at the time of receiving them she was advised of their payment.'

In the state of the pleadings, the notes bearing the endorsement mentioned, the court might as well have directed a verdict for the plaintiff.

Yet the whole record, which is voluminous, shows an effort on the part of the defendant to prove the truth of the allegations -of its answer, by circumstantial evidence. After shutting Mrs. Smith’s mouth as to the real consideration passing from her to her husband for these notes, by invoking the rule as to transactions between husband and wife, the time spent in trying to prove that Mrs. Smith paid her husband nothing for the notes, we think, was wasted. He had a right to give the notes to his wife, for the record shows him individually solvent at the time the company executed the original notes, though the company may not have been solvent. We have found no authorities sustaining the broad claim of counsel for plaintiff in error that where no consideration passes between the payee and endorsee in due course of a negotiable note, payment at maturity to the payee will prevent recovery by the endorsee. Such a rule would jeopardize the value of many of the securities held by educational and charitable institutions.

What then are the circumstances in this ease that tend to overcome the presumption arising from the possession of these notes by Mrs. Smith, properly endorsed, that such endorsement was made to her prior to the maturity of the. notes ?

L. P. Smith was president of the company, Margaret K. Smith was his wife, and she owned one share of stock in the company and was a director in it until these notes matured. She had like connection with a Lorain company which was merged with this company at the time the notes are said to have been paid; she consented to this merger. She had notice that a meeting of the company was called for the purpose of increasing the capital stock of the company, buying the Lorain company, changing the name of the company and the transaction of such other business as might come before such meeting, and she expressly agreed to the increase of stock.

This meeting ivas held on the very day the last note matured, but she was not present at it. At the meeting a scheme for financing the company was agreed upon which required her husband to take stock for his claims against the company, which appear to have largely exceeded the amount of these notes, and provided that the creditors of the company should turn in their claims against the company, accept in lieu thereof individual notes of L. P. Smith and his brother, secured by their stock in the company, “and upon such exchange being effected the notes, claims and demands against said companies * * * should be canceled and surrendered to said company.”

L. P. Smith signed this agreement, both as a creditor and as one of the parties agreeing to carry it out. Margaret K. Smith and two other creditors did not sign the agreement. L. P. Smith did not advise the company that the notes had been assigned to his wife and everybody else connected with the transaction supposed he still owned the notes. The books of the company show his personal account charged with the payment of the interest on the notes until their renewal. The renewal was to him instead of to his wife. The company has paid the notes once to the husband and says that the claim of the wife is a scheme arranged between her and her husband to defraud it, and that she should not have the assistance of the courts to this end.

Whatever bad faith is chargeable to L. P. Smith in this transaction, are we to impute to Ms wife, because of their relationship only? Is she not to be presumed an honest woman until the contrary is shown? There is nothing in the facts stated which would preclude her recovery were she not the wife of L. P. Smith. In transactions between them, her conduct is to be considered in the light of the general rules which control the actions of persons occupying confidential relations with each other, but that does not mean, as the defendant below requested to be charged, that the relationship of husband and wife is such as to afford every facility for fraud. Here suspicion that she committed a fraud is not sufficient. If she is innocent of wrongdoing, the fraud her husband may be guilty of would be directed against her instead of against the company, were it to prevail in this law suit. She does not appear to have been guilty of laches, while the company was. It should have required a surrender and cancellation of the notes, when they were paid. It is not sufficient to excuse this neglect to say that L. P. Smith was the president of the company and its trusted officer. The affairs of the company were in the hands of a committee of bankers under an agreement which provided that creditors should surrender and cancel their notes, claims and demands, at the time they were satisfied. ITad the committee attended to this duty, no law suit would have arisen over the payment of these notes. We are inclined to let the consequences of this negligence rest upon those who were guilty of it.

Judgment affirmed.

Henry and Marvin, JJ., concur.


text:
    BILLS AND NOTES — ESTOPPEL.
    [Cuyahoga (8th) Circuit Court,
    June 7, 1909.]
    Winch, Henry and Marvin, JJ.
    Forest City Sav. & Trust Co. v. Alexander Campbell.
    '1. Memorandum of Extension Not Competent Against Accommodation Endorsee Told That Note Had Been Paid.
    In a suit by a bank against an accommodation endorsee of a note who defends on the ground that he went to the bank to pay the note when it was due and was told that it had been paid, it is not competent for the bank to introduce in evidence a memorandum in writing made by its secretary and treasurer and pinned to the note, to the effect that extension of time of payment had been consented to and reduction of interest had been made.
    2. Showing of Prejudice Required to Work Estoppel.
    To work an estoppel there must be prejudice to the party setting-up the estoppel, as well as fraud or bad faith, or their equivalent. —gross negligence — in the party to be estopped.

      3. Presumption That Accommodation Endorsee Paying Note Would Proceed To Recoup From Maker.
    The presumption is that an accommodation endorsee of a note, who offered to pay it when due and was told that it had been paid, would have proceeded against the makers of the note to recoup himself, if he had been required to pay the note, and this is so even though the makers of the note were his sons.
    ERROR.

      Smith, Taft <& Arter, for plaintiff in error.

      Westenhaver, Boyd, Rudolph <& Brooks, for defendant in error.
   WINCH, J.

The bank sued Campbell as guarantor of a promissory note executed by Campbell Brothers, a contracting firm composed of his two sons. Campbell answered admitting the execution and endorsement of the note, but alleging that he endorsed the note for accommodation merely, as was known by the bank, and further alleging that at the maturity of the "note he went to the bank and offered to pay it, but was told by its secretary and treasurer that the note had been paid, relying upon which statement he took no steps to compel the payment of the note by his sons who were then solvent, but who became insolvent about fifteen months later. A reply filed by the bank put these allegations in issue. The trial resulted in a verdict for the defendant, and the first claim of error is that the verdict is not sustained by sufficient evidence. Upon this point, without stating the facts shown in evidence, we think that from the testimony 'of the defendant, his son-in-law, Kidd, and the admitted course of dealing between Campbell Brothers and the bank, which made the firm’s collections for it, kept its books at the bank and made credits from time to time as notes matured, and other circumstances shown in evidence, the jury might well have found as it did.

There are several rulings on evidence, which require examination.

The secretary and treasurer of the bank had pinned a memorandum upon the note reading as follows: “On October 8, 1900, Mr. Alex Campbell called at the bank and consented to the indefinite extension of this note, but the interest should be reduced to six per cent.” This memorandum was offered in evidence as tending to confirm the secretary’s testimony that he had not told Mr. Campbell that the note was paid, but on the contrary had arranged with him for an extension of time at a lower rate of interest. The memorandum was excluded, and rightly, we think. It was a self-serving statement and no more competent than would have been a letter to the same effect from the secretary to some other official of the bank.

Nor was it competent to show by members of the bank’s finance committee what took place at their meeting on October 8, 1900, regarding this note. Campbell was not present at the meeting, and so was not bound by what then took place. Had the minutes of said meeting made any reference to the note, they might perhaps have been admitted as entries in books of the bank regularly kept and made at the time, but even such entries would fail to prove that Campbell had agreed to an extension of time on the note, though they might bind the bank.

Some fault is found with the charge.

Speaking of the note and its endorsement, which was a guarantee of payment, the court said: “I say ‘endorsed or guaranteed, ’ because for the purpose of this law suit, it is immaterial whether it be a simple, plain endorsement, or a guarantee of payment of the note.”

No prejudice could have resulted from the remark, for the defendant did not deny his liability on the note, if the estoppel from the conduct of the bank in telling him the note was paid, was not established.

We find more difficulty in the following part of the charge:

“I further say to you that in order to find for the defendant it is not necessary that you should find that, as a matter of fact, he would have proceeded against Campbell Brothers and made good his loss by reason of his obligation on said note prior to the bankruptcy of said firm. It is sufficient if you find that he had a legal right to so proceed against said firm, and that said firm had assets and property sufficient to cover his loss.”

Taken by itself, at first reading it would seem that the court had intimated that the estoppel was complete, even though Campbell would not have acted upon the conduct of the bank, to his detriment. Such, of course, is not the law of estoppel. To work an estoppel there must be prejudice to the party setting up the estoppel, as well as fraud or bad faith, or their equivalent, gross negligence in the party to the estoppel.

But the clause quoted, if carefully examined, does not go the -extent claimed. Whether Campbell would or would not have proceeded against his sons, had he paid the note on the day he went to the bank prepared to pay it, was a matter for him to determine after he had been there. The presumption is that he would have collected from his sons, for they were then abundantly able to pay him and no contrary presumption arises from the mere relationship of the parties; but he was cut off by the statement of the bank from taking any steps or even from considering what he would do. The language of the court, while unfortunate enough to bother a reviewing court, could not have misled the jury, when taken in connection with the balance of the charge, as to which no fault is found. The court intended, by the clause complained of, to tell the jury that it need not speculate as to what course Campbell would have pursued provided it found that he could have recouped himself, and in this the court was justified, there being no evidence that he would not have proceeded against his sons and the presumption being that he would have taken steps to make them pay him.

There are no other claims of error and the judgment is affirmed.

Henry and Marvin, JJ-, concur.


text:
    SALES — WARRANTY.
    [Cuyahoga (8th) Circuit Court,
    February 9, 1905.]
    Marvin, Winch and Voorhees, JJ.
    Judge Voorhees of the fifth circuit sitting in place of Judge Henry.

      Darlington Brick & Min. Co. v. Bernard Schartzinger et al.
    Trade Terms Not Implying Warranty.
    In an order for “first quality brick” and “second quality brick” the words “first and second quality” are merely descriptive, and import no warranty.
    Appeal.

      Weed & Meals, for plaintiff.

      P. G. Eassulker and Carpenter, Young & Stocker, for defendants.

      Affirmed, no op., Schatzinger v. Darlington Brick & Min. Co. 74 Ohio St. 441.

   WINCH, J.

In the fall of 1899, the Darlington Brick & Coal Company, which hereinafter will be called the coal company, owned a plant and was engaged in the manufacture of brick at Darlington, Pennsylvania. The company was contemplating selling out and Bernard Schatzinger visited the plant at that time, perhaps with a view of becoming interested in the business. He was and is a large operator in real estate in the city of Cleveland, engaged extensively in building houses, and was familiar with all materials entering into their construction.

At the works in Darlington he saw a large quantity of brick of various colors and grades, manufactured at said works and piled under a shed.

In the spring of 1900, the coal'company having sold its works to other parties on March 28, made á proposition to one D. J. Kennedy, which he accepted, that he buy all the brick then on hand at its works, understood to be 520,000 all told, in stock, at an agreed price, and agreed to turn over to said Kennedy an order received from B. Sehatzinger for 200,000 of the brick then in stock at $10.50 per M. f.o.b. cars, works.

No written order from Sehatzinger was then in the hands of the coal company, but his agreement to take brick was reduced to writing and signed by Sehatzinger April 2, 1900. This written agreement was for 200,000 of the different binds of brick in about the number specified by schedule, at $13.85 per thousand, delivered on Sehatzinger’s lot near the Boulevard and Lake View avenue, and Superior street, Cleveland, Ohio, on or before June 1, 1900, payment to be made as follows: the freight and hauling charges amounting to $3.35 per thousand, as delivered, and the balance of $10.50 per thousand to bp paid by six months’ note, without interest, dated from the date of completion of delivery.

The schedule of brick ordered set forth a list of fifteen varieties, distinguished as to color and the number of each kind was given and varied from about 1,500 of the smallest lot to about 10,000 the largest lot. The' first four lots, about 50,000, were ■designated, “Second quality,” and the remainder, “First quality.”

On the back of this order signed by Sehatzinger was endorsed the following:

“April 4, 1900. I hereby agree to fill the within order of B. Sehatzinger as near as possible out of the brick now in stock at works of the Darlington Brick & Coal Company, provided said company will be responsible for and assume the payment of freight and cartage, the same not to exceed $3.35 per M., and if same exceeds that amount said Co. will stand the excess and provided all of said brick may be shipped in April or in April and May at my option.
“(Signed) D. J. Kennedy.
“We hereby agree to the above.
“The Darlington Brick & Coal Co.,
“By C. C. Young, its Attorney.”

It appears that in these transactions said D. J. Kennedy was acting in behalf of himself and others who subsequently became incorporated as the Darlington Brick & Mining Company,hereinafter called' the mining company, and which company made shipment of brick hereafter mentioned, and is plaintiff in this 'action.

A copy of the endorsement to Kennedy on the back of' Schatzinger’s agreement was mailed to the latter on April 11,. 1900, and received by him the next day; shipment of brick to him followed, commencing April 14, 1900, twenty-three carloads being delivered before June 1, and three ear loads being-delivered June 13, and one car, final shipment, being delivered June 15, 1900, invoices being mailed him by the mining company. Schatzinger indicated to the drivers where he wanted these brick delivered, and it appears from his own testimony that he inspected the brick from time to time as they were delivered. The evidence also shows that Schatzinger never made any complaint as to the quality of the brick to either the coal company, the mining company or D. J. Kennedy, until June 27, 1900, when he wrote the mining company saying he was not aware of having ordered brick from it or through it; that the brick was subject to its order and that he would not deal with said company under any circumstances. While nothing was said in this letter as to the quality of the brick, on the same day he wrote, the coal company that he would not accept the brick, because it had failed to deliver the kind and quality-ordered.

Thereupon the mining company brought its action in equity, as the assignee of a part of the claim for the brick furnished, against Schatzinger, claiming the sum of $10.35 per thousand for said brick and made the coal company party defendant, which filed a cross-petition asking judgment against Schatzinger for $3.50 per thousand, the freight charges paid by it on said brick.

By answer to the second amended petition, Schatzinger alleges that no part of the brick he contracted for were ever delivered to him; that the brick delivered were of an inferior quality and he refused to accept them and so notified both tlm coal and the mining companies at once; that he never consented to any assignment or partial assignment of his contract to the plaintiff; that time was of the essence of the contract and the brick were not delivered on time.

By answer to the cross petition of the coal company Schat-zinger makes practically the same defenses and further makes counterclaim for damages sustained by him for breach of express warranties contained in his agreement, which he says appears by the use of the words “first quality” and “second quality” therein contained.

The questions of law thus submitted to the court for its determination are:

First. Can plaintiff maintain- an action in equity for part of the amount Sehatzinger agreed to pay for the brick and thus deprive him of the right to submit his defense to a jury?

This question we answered in the affirmative in an error case between the same parties brought here to test that question alone, and it is unnecessary to give further reasons for so holding. It is sufficient to state that plaintiff could not sue at law on an assignment of part of the claim, and its only remedy is in equity.

Second. Do the words “first quality” and “second quality” used in Sehatzinger’s order for brick amount to an express warranty, or are they only descriptive of the kind of brick ordered ?

This question is perhaps a mixed one of law and fact.

The testimony is unanimous that in the brick trade “first quality” means brick, of whatever make or kind, with at least one even face, with straight edges, and one end of the same character; “second quality” means the same as “first quality,” except the edges may be chipped.

Following the Supreme Court in its decision of the case of Bowman Lumber Co. v. Anderson, 70 Ohio St. 16 [70 N. E. 503], we hold these words are merely descriptive of the brick and import no warranty. In the Bowman case the order was for ten carloads of number one, select and common poplar lumber, and the words ‘ ‘ select and common ’ ’ indicating the grade of the lumber, were held to be merely descriptive.

As to the questions of fact to be determined, we shall make no long reference to the evidence adduced. While Mr. Schat-zinger’s testimony tends to sustain his contentions, it is contradicted on every material proposition and very largely by his own conduct. We think much of this contradiction arises from a misapprehension on the part of Mr. Schatzinger as to his legal rights under the circumstances of this case, and his obligations to the other parties.

Without further comment it is sufficient to say:

First. We find that time was not of the essence of this contract.

Second. We find that there was substantial delivery, according to the contract, of all the brick, of the kind and quality mentioned in the order. There may be a deduction for a shortage of 166 brick and 4,700 brick, third quality, in the last shipment.

Third. We find that the defendant, Schatzinger, accepted the brick in compliance with his order.

As the holding of this court that the order for brick contains no express warranty which will survive the acceptance of the brick may not be acquiesced in and a finding of facts may be desired, it is proper at this time to say, in explanation of the second finding of fact, that it is made for that reason and that we are of the opinion that the preponderance of the evidence is entirely to the effect that the quality of the brick delivered was as scheduled in order.

Decree may be drawn as indicated.

Marvin and Voorkees, JJ., concur.


author: JONES (0. B.), J.

text:
    DAMAGES — DEATH—STREET RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    June, 1914.]
    Swing, Jones and Jones, JJ.

      Cincinnati Trac. Co. v. Albert Beebe, Admr., et al.
    1. Admissibility of Nonexpert Testimony as to . Excessive Speed of Street Car.
    While an ordinary person may not be at all accurate in giving in figures the speed of a car or train at a given moment, yet his knowledge of speed may be sufficiently substantial to enable him to give testimony which will be an aid in determining whether under all the circumstances of the case the speed was excessive at the time of the accident.
    2. Measure of Damages in Case of Minor Child for Death by Wrongful Act.
    In determining what amount of damages, if any, may be awarded to parents for the wrongful death of a minor child, the jury may consider the age and sex of the child, the circumstances and condition of life of the parents, and other helpful facts existing at the time of the child’s death.
    Error to Cincinnati superior court.

      •Kinkead & Rogers, for plaintiff; in error.

      Thomas L. Michie and William P. Eohmann, for defendants in error.

      Affirmed, no op., Cincinnati Trac. Co. v. Beebe, 91 Ohio St. 418.

   JONES (0. B.), J.

Clifford Beebe, a boy seven years of age, was killed by a street car operated by the defendant below, on Sixth street just west of Cutter street in Cincinnati. Sixth street has at this point a double track street railroad upon it. The ear which struck the decedent was a west-bound car operating on the north track. The east-bound cars ran upon the south track.

The testimony in regard to the facts of the accident is rather conflicting and is of a character peculiarly appropriate for submission to a jury for determination.

The witnesses for the plaintiff agree in their testimony that the decedent with other boys just out of school on their way home came from the south side of Siith street crossing the street to the north, and that some boys threw decedent’s hat across the street in front of the car and the decedent intent upon recovering his hat ran in a northwesterly direction and was struck by the car which ran over him almost cutting him in two across the abdomen, the body being between the two left or south wheels of the car, which was a single truck summer car. Their testimony is to the effect that the body lay with the head toward the northwest under the car, and the feet protruding out to the southeast, and it was necessary to obtain a plank or timber from the express stable nearly opposite, to lift the car so that the body could be taken out.

Several witnesses for the defendant testified that the boy ran from the north side southwardly in front of the ear, all agreeing however that he was struck by the left side of the ear and the body found on the south rail under the ear, some saying that the head was to the southward and the legs under the car. The fact that it was under the left wheel to the south side of the ear indicates that those witnesses who testified that he came from the south, were probably correct, rather than those who stated that he came from the north.

The testimony of the motorman in regard to just how the accident occurred is rather inconsistent in itself. He says that the boy ran from the north sidewalk in front of the car when it was about ten feet from him, and almost cleared the track, when the left bumper of the car hit the boy in the right shoulder and hurled the body around and threw him under the car in a manner he could not explain. Pie states that the boy’s head wás to the south and his feet under the car; that he procured a heavy plank or timber and helped pry the car up so that the boy could be taken out. He says that the car was slowed up at Cutter street for the purpose of stopping in response to the signal of the conductor to permit a passenger to alight; that the passenger jumped off before the car had entirely stopped, and the signal was given to go on; that he let off the brake and started the car up but was not running more than four or five miles per hour when the accident occurred. He claims to have been ringing the gong repeatedly and trying to stop the ear with the brake and that for that reason he was so occupied he made no attempt to use the fender. He says that he did not look on the south side and did not know how many boys or people there might be on the south side of the street or to the south of the ear on the street.

A witness, Donnelly, called by plaintiff, stated that he thought from the action of the motorman that he was trying to drop the fender but that it failed to drop. Another witness testified that the motorman took the switch-iron and leaned forward as though he was trying to push the boy out from in front of the car.

There is some conflict in the testimony as to whether or not the gong was sounded, and considerable difference in the statements as to the speed of the car. The fact that many of the witnesses were unable to give the rate of speed in the number of miles per hour did not in our opinion disqualify them from testifying. An ordinary person can not be at all accurate in giving the rate of speed in figures unless he is a person who has had some experience and made observations in^such matters, and yet he might have substantial knowledge of speed that would be available in the determination of whether or not the speed of a car was excessive under the circumstances of a particular case.

The language of the court, in Overton v. Chicago & E. I. Ry. 181 Ill. 323, 327 [54 N. E. 898], properly expresses this doctrine:

“While the court permitted certain witnesses to testify to the degree of speed at which the train that struck the plaintiff was running, the testimony of other witnesses for the plaintiff’s intestate that the train was going very fast was stricken out. This was error. A witness might know and truthfully say that a train was running fast or slow, and yet be unable to state the speed in miles per hour, and such inability would not render his testimony of no value or incompetent upon the question of' speed. ’ ’

The testimony of the motorman is to the effect that the fender was in good working order on that occasion, and other evidence in the record would indicate that if he had dropped the fender promptly when he saw the danger to the boy his life might have been saved. The ringing of the gong, under the eircum-stances as be states them, would be much less effective than the dropping of the fender because, according to his story, the boy was running at such speed and was so near to the car that the gong could not avail, while the fender could doubtless have saved his life.

But it is useless to further discuss the testimony as to negligence, as it was properly submitted to the jury, and in our opinion their finding is supported by the evidence.

Plaintiff insists that there is no evidence in the record to' support a judgment for more than nominal damages, and relies upon the ease of Cincinnati St. Ry. v. Altemeier, 60 Ohio St. 10 [53 N. E. 300]. That case holds that it is proper in the case of the wrongful death of a minor child to show the circumstances and health of its parents requiring that the child should aid them by his services not only during minority but thereafter. But we do not understand that it goes to the extent of holding that none but the very poor could recover damages for the wrongful death of a child or that proof of present earning power must appear. In this case the record shows that both parents were living and testified as witnesses before the jury, giving their ages and residence, and that the other beneficiaries of the suit were two brothers, one aged two years and four months and the other aged eleven months at the date of the filing of the petition, the latter of whom died before thé trial. It is further shown that the deceased was a sturdy healthy boy of good disposition and habits. I-Iis years made it impossible to show that he then had an earning power, or just what such powers might in the future become, but the amount of the damage suffered was a proper question to be left to the consideration and determination of the jury within the limits fixed by law. The amount of the verdict rendered in this case shows that such duty was properly exercised by the jury without passion or prejudice.

-The language of the court in Ihl v. Forty-second St. Ry. 47 N. Y. 317, 320 [7 Am. Rep. 450], in our opinion properly states the law as to the determination of damages in such a ease:

“The absence of proof of special pecuniary damage to the next of kin resulting from the death of the child would not have justified the court in non-suiting the plaintiff, or in directing tbe jury to find only nominal damages. It was within the province of the jury, who had before them' the parents, their position in life, the occupation of the father, and the age and sex of the child, to form an estimate of the damages with reference to the pecuniary injury, present or prospective, resulting to the next of kin. Except in very rare instances, it would be impracticable to furnish direct evidence of any specific loss occasioned by the death of a child of such tender years; and to hold that, without such proof the plaintiff could not recover, would in effect, render the statute nugatory in most cases of this description. It can not be said as a matter of law, that there is no pecuniary damage in such a case, or that the expense of maintaining and educating the child would necessarily exceed any pecuniary advantage which the parents could have derived from his services had he lived. These calculations are for the jury, and any evidence on the subject beyond the age and sex of the child, the circumstances and condition in life of the parents, or other facts existing at the time of the death or trial, would necessarily be ‘speculative and hypothetical, and would not aid the jury in arriving at a conclusion.”

Plaintiff in error also claims that the court in its general charge committed error by its instructions in regard to the equipment of the car with a proper automatic fender. We think that the charge complained of was properly given by the court. As we have above stated, there was testimony in regard to the character and use of the fender, and the circumstances of the accident themselves seem to have indicated that if the body of the child had been struck by the apron, the basket should have been automatically dropped, or if the basket had been dropped by the motorman the life might have been saved. The language of the court in this part of the charge was guarded and it was quite proper in view of the pleadings and the evidence that such a charge should be given.

A careful examination of the record fails to disclose any substantial error to the prejudice of the plaintiff in error, and the judgment is affirmed.

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


text:
    CREDITOR’S BILLS — LIENS.
    [Cuyahoga (8th) Circuit Court,
    November 1, 1909.]
    Winch, Henry and Marvin, JJ.
    Vinchenzo Drago v. George Prosser et al.
    Creditor’s Bill Held not Maintainable by General Creditor Having no Interest in nor Lien on Fund.
    One who has no interest in nor lien upon a particular fund can not apply for a receiver, of it and a marshalling of claims thereto, though he brings in other parties who might maintain such an action.
    [Syllabus by the court.]
    Error.

      Myler and Turney, for plaintiff in error.

      Weed, Miller <& Nason, for defendant in error.
   WINCH, J.

The petition in this ease reeites that plaintiff brings his action as a creditor of Prosser and Wonn, on his own behalf, and on the behalf of one hundred and seventeen others similarly-situated, or so many of the same as may desire to join in the action.

It alleges that the defendants, Prosser and Wonn, are indebted to the plaintiff in the sum of $20 for manual work and labor performed for them at their request, in and about the construction of a certain sewer system in the village of Corlett, which said partnership had contracted with said village to construct; that Prosser and Wonn partly completed their said contract, became indebted to numerous persons for labor and material which went into the work and then abandoned their contract; that the defendant, the United Surety Company, then made arrangements with the village to complete the work, pursuant to the contract, and did- finish the same; that the village has in its hands the sum of $21,457.84, applicable to payment for the work, of which $6,000 was earned by Prosser and Wonn, though the surety company claims the whole amount; that certain of the defendants and other persons claim the right to participate in said fund; that a large number of attested accounts have been filed and a great number of attachments have been granted by various courts against the property of said partnership; that the village refuses to pay out any of said money without a release from all parties claiming a right to participate therein; that the partnership and the individual members of it are insolvent and have no other property except the said fund in the hands of the village.

The prayer of the petition is for a receiver for the property of the partnership, a determination of the priority of the claims of the creditors of the firm, and distribution of the said fund to its creditors.

A demurrer to this petition was sustained and the sole ■question this court has to determine is the correctness of said ruling.

"We find no error in it. Plaintiff has alleged no right of his own to any part of said fund, or lien upon it. He does not appear to be a judgment creditor and so is not entitled to maintain a creditor’s bill. He sets forth no attested account of his own which would entitle him to a lien on the fund, under the mechanic’s lien law, nor any assignment or bankruptcy of the partnership which would entitle him to a preference. He alleges no lien by attachment, or otherwise, obtained by himself.

The mere fact that some of the defendants have liens upon the fund and that others who have liens, for whose benefit he says he brings the suit, may have a right to participate in its distribution, does not help the plaintiff or the petition. The plaintiff shows no right of his own to participate in a distribution of the fund, and so his petition is defective. As well might a general creditor of the partnership, finding it had some money deposited in a bank, bring an action for the appointment of a receiver of the deposit and distribution of the fund to the preferred and general creditors of the firm, without first establishing some peculiar interest in or right to the particular deposit held by the bank. Such actions are not maintainable.

Judgment affirmed.

Henry and Marvin, JJ., concur.


author: JONES, (E. H.) J.

text:
    CRIMINAL LAW — INDICTMENTS.
    [Warren (1st) Court of Appeals,
    August 12, 1915.]
    Swing, Jones and Jones, JJ.
    Harveysburg Fertilizer Co. v. State of Ohio.
    1. Discretion in Compelling Election Between Counts in Indictment Broad.
    Reviewing courts will allow a rather wide discretion to trial courts in the matter of compelling an election between different counts of one indictment.
    2. Joining of Distinct Offenses in Different Counts of Same Indictment.
    As a general rule distinct offenses may he joined in different counts of the same indictment, either where they arise out of and are connected with the same transaction, or where they are connected with the same subject-matter.
    3. Special Findings and Interrogatories not Required on Plea of Guilty.
    Where there is a plea of not guilty in a criminal case, the court is not required to direct the jury to return special findings or answer interrogatories, and this is true as well where the defendant is a corporation.
    [Syllabus by the court.]
    .Error.

      Brandon <& Ivins and Willis Bacon, for plaintiff in error.

      Frank C. Anderson, for defendant in error.
   JONES, (E. H.) J.

The plaintiff in error was indicted for maintaining a nuisance. As its name indicates, it is engaged in the business of manufacturing fertilizer from the carcasses of dead beasts, its plant being located at Harveysburg in Warren county, Ohio. The indictment contains three- counts. The first count of the indictment alleges that “by reason of the boiling and drying of the flesh and entrails of beasts' at said place and in said buildings as aforesaid divers noisome and offensive smells during the time aforesaid, were occasioned, so that the said place, buildings and business becomes injurious to the health, comfort and property of the persons there residing, to the common nuisance of all the people of the state of Ohio there lawfully being and abiding, and to the common nuisance of all persons lawfully being upon and passing along the public highway located by and contiguous to the said place and buildings. ” The second count alleges that “the said the Harveys-burg Fertilizer Company did at the time aforesaid and at the place aforesaid unlawfully receive and cause to be received the bodies of dead beasts and deposited and caused to be deposited said dead bodies at said place in plain view of persons passing along and over the public highway located along and contiguous to said property of the said the Harveysburg Fertilizer Co. and unlawfully did permit said bodies there to remain until by reason of their decomposition they gave off noisome and offensive odors during the time aforesaid, so that the said place and business became injurious to the health, comfort and property of the persons there residing, to the common nuisance of al1 the people of the state of Ohio there lawfully being and abiding, and to the common nuisance of all the people passing over and along the public highway located along and contiguous to the property of the said the Harveysburg Fertilizer Co.” And the third count of the indictment states that the said fertilizer company “unlawfully and purposely did corrupt and render unwholesome and impure a certain water-course then and there being and flowing unto and through the said county of Warren and known as ‘ Caeser’s Creek’ by putting offal, filth and noxious and offensive Substances into said water-course to the damage and prejudice of other . persons residing along said water-course in said county of Warren.”

To this indictment the defendant filed a demurrer and motion to quash, both of which were overruled by the trial court, and exceptions were taken. Thereupon the case came on for trial before a jury which found the defendant company guilty upon the first and second counts of the indictment, and not guilty upon the third count. Judgment was entered upon this verdict assessing a fine for each offense, and ordering an abatement of the nuisance found by the jury to exist:

Several alleged errors are pointed out by counsel for the plaintiff in error. After the jury had been impaneled and sworn, a motion was made by defendant to require the state to. elect upon which count of the indictment it would proceed to trial. The court overruled this motion, and its action in so doing is claimed to be error:

"We think the authorities cited in the brief of plaintiff in error upon this point do not support its contention, but on the other hand show that the court was correct in overruling said motion.

In Bailey v. State, 4 Ohio St. 441, it is held:

“Several distinct offenses may be joined in different counts of the same indictment, as a general rule, either where they arise out of, and are connected with, the same transaction, or where they are connected by the same subject-matter.”

The first proposition of the syllabus in said ease holds:

“Where an indictment charges two or more offenses, arising out of distinct and different transactions, the court trying the cause may require the prosecutor to elect upon which charge he will proceed; but the action of the court, in this respect, being a matter of discretion, can furnish no ground for a writ of error.”

Without citing further authority, it seems to be the policy of reviewing courts to allow a rather wide discretion to trial courts in the matter of compelling election between different counts in one indictment. The case of Stockwell v. State, 27 Ohio St. 563, and Bainbridge v. State, 30 Ohio St. 264, are cited by counsel for plaintiff in error, but have no application here, since the question there determined arose from indictments containing only one count, the evidence however having a tendency to prove two or more offenses.

The second error assigned is that the court refused to allow the jury to answer twenty interrogatories propounded by the accused. It has been held in this state that Secs. 5200 and 5201 Rev. Stat. (now Sec. 11463 Gf. C.), have no application in criminal cases. See Smith v. State, 59 Ohio St. 351 [52 N. E. 826], The .claim that this case is taken out of the rule there laid down, by its being quasi-civil, we think is not well founded. The plea here was one of not guilty, the same as in other criminal eases, and the Supreme Court held expressly in the Smith case, above cited, that where there is a plea of not guilty the court is not required to direct the jury to return special findings or answer interrogatories.

We have examined the special charges requested by defendant which the court refused to give, and find no error in the court’s action. Without entering at length upon a discussion of those charges we might state that they are all subject to the objection that they are drawn upon the theory that a person upon trial for a crime may establish his innocence by proving some one else has been guilty of the same offense.

The fourth error urged in the brief we think is answered by our holding to the effect that it was right for the court to order the trial to proceed upon the three counts of the indictment. If the defendant can be tried upon two or more counts, the jury had a right, if warranted by the evidence, to find the defendant guilty upon one or two of said counts, and the court had the duty to pass sentence and enter judgment upon the verdict so found.

The fifth assignment of error is stated as follows: “The court erred in not directing a verdict for the accused.” It is urged in this connection that there is a variance between the proof and the indictment, in that the indictment charges that the stench was created by “boiling and drying the flesh and entrails of the beasts, ’ ’ while the evidence, it is claimed, shows that there was no boiling and drying but that the cooking was produced by the application of steam. We have read the opinion of the trial court upon this question, delivered in passing upon the motion for a directed verdict, and approve what the learned judge there said. Section 13582 G-. C. fully meets this objection, and is as follows:

“When, on the trial of an indictment, there appears to be a variance between the statement in such indictment and the evidence offered in proof thereof, in the Christian name or surname, or both or other description of a person therein named or described or in the name or description of a matter or thing therein named or described, such variance shall not be ground for an acquittal of the defendant, unless the court before which the trial is had, finds that such variance is material to merits of the ease or may be prejudicial to the defendant. ’ ’

There was no error in the court’s refusal to require an election by the prosecutor after the close of the evidence. Such action of the court would have been proper and necessary had more than one offense been proven under an indictment containing but one count. The trial court correctly passed upon this question at the beginning of the trial, as we have before found, and the motion made at the close of the evidence was not well taken.

Finding no error in the proceedings, the judgment of the common pleas court will be affirmed.

Swing and Jones (O. B.), JJ., concur.


text:
    APPEALr — MANDAMUS.
    [Butler (1st) Court of Appeals,
    November 22, 1915.]
    Jones, Jones and Gorman, JJ.
    State, ex rel. Welch v. Deneen (Dir. Pub. Safety, etc.)
    1. Jurisdiction on Appeal Not Defeated by Failure to Note Filing of Appeal Bond on Appearance Docket.
    Tlie notation of the filing of an appeal bond on the appearance docket is not jurisdictional, and when an appeal bond is given within the statutory period a failure to make a notation thereof on the appearance docket at the time it is given does not affect the appeal.
    2. Proceedings in Mandamus May be Reviewed on Error Only.
    The amendment of the constitution of Ohio, Art. 4, Sec. 6, providing for the organization and jurisdiction of the court of appeals, has excluded a statutory proceeding such as mandamus from the cases which can be reviewed in the court of appeals on appeal, and when such review is desired it must be had by error proceedings.
    [Syllabus by the court.]
    Appeal.

      Clinton Egbert, for plaintiff.

      B. F. Primmer, for defendant.
   JONES (0. B.), J.

This ease is heard on a motion to dismiss the appeal. Two grounds are urged: the first, that the judgment having been entered June 29, 1915, and the appeal bond filed September 29, 1915, the said bond was filed more than thirty days alter the judgment was entered, and See. 12226 G. C. was not complied with and the appeal must, therefore, be dismissed.

The transcript filed with the papers herein shows that the appeal bond was given June 30, 1915, and then approved by the clerk in accordance with the statute, but it appears that the clerk failed to note the giving of this bond upon the appearance docket or mark it as having been filed until September 29, 1915. The jurisdictional requirement of Sec. 12226 is that the undertaking should be given, and that appears to have been done in this case. Of course it should be noted upon the appearance docket at the same time it is given, but' such notation does not appear to be jurisdictional.

The second ground urged for dismissal is that under the terms of Sec. 6, Art. 4, of the constitution as amended, this case is not appealable, as it is not equitable in its nature and is not a chancery ease.

Prior to the amendment of the constitution cases in mandamus were appealable to the circuit court. Dutton v. Hanover, 42 Ohio St. 215, and State v. Philbrick, 69 Ohio St. 283 [69 N. E. 439], The statute would still seem to permit such an appeal, if it alone were to be considered; but the amendment to the Constitution providing for the organization and jurisdiction of the court of appeals has excluded a statutory proceeding such as mandamus from the cases which can be reviewed in the court of appeals, and such review when desired must therefore be had by error proceedings.

The motion to dismiss will be granted.

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


text:
    EQUITY — JURY.
    [Cuyahoga (8th) Circuit Court,
    February, 1905.]
    Winch, Henry and Marvin, JJ.
    Darlington Brick & Min. Co. v. Bernard Schatzinger et al.
    Jury Trial Impossible In Complicated Three Cornered Suit.
    Where A orders merchandise of B who has already sold his entire stock to C, and B assigns the order to C who assumes and fills it upon the guaranty of B that he will pay the freight and dray-age, which is done, and A refuses to pay for the goods; in an action by C for the purchase price in which A and B are made defendants, B files a cross petition asking for judgment against A for the amount of the freight and drayage, and A files a cross petition asking judgment against B for breach of contract, the rights of parties are so involved, as to make a jury trial impossible.
    Appeal.

      Weed <& Meals, for plaintiff.

      P. G. Kassulker and Carpenter, Young & Stocker, for defendants.
   WINCH, J.

Motions filed in these cases practically amount to an application for rehearing of an error case growing out of the same litigation in which we held that the defendant Sehatzinger, was properly denied a jury in the court below.

Whether or not we were right in such ruling is a close question, but we 'have decided to adhere to it.

There is no question that only under the principles of equity jurisdiction could the plaintiff maintain an action against the defendant Sehatzinger, on the claim set up in the petition. Pittsburgh, C. C. & St. L. Ry. v. Volkert, 58 Ohio St. 362 [50 N. E. 924].

But, it is said, that although this case involves the application of principles which are of equitable origin and nature, the action is for money only, not requiring a decree granting some mode of equitable relief, and therefore the defendant Sehatzinger was entitled to a jury in the common pleas court. Lange v. Lange, 69 Ohio St. 346 [69 N. E. 611].

We have come to the conclusion, however, that this was not an action for money only; that the pleadings presented such a three cornered lawsuit that it could not possibly have been tried to a jury; that the rules governing jury trials would have prevented the working out of the equities which we conceive underlie this law suit.

There is no question that whether a case is to be tried to a jury or by the court does not depend upon the principles upon which relief is asked, but upon the nature and character of the relief sought. Gunsaullus v. Pettit, 46 Ohio St. 27 [17 N. E. 231].

How stood the pleadings when the case came on for trial?' Plaintiff, by partial assignment from the defendant coal company, claimed due him from defendant Schatzinger the sum of $2,100 under a contract between Schatzinger and the coal company which plaintiff claimed to have carried out in part. Plaintiff also claimed to recover the same amount from the defendant coal company under an entirely different contract between plaintiff and it, if plaintiff failed to recover of defendant Schatzinger.

The defendant coal company claimed to recover $670 of Schatzinger under its contract with him.

Defendant Schatzinger denied the right of either plaintiff or the coal company to recover from him, and cross petitioned, asked judgment against the coal company for $2,500 damages,, for breach of its contract with him. He had no contract with the plaintiff.

Suppose under these pleadings the proof had shown Schat-zinger entitled on his cross petition to judgment against the coal company for, say $1,000 damages.

Then could a jury say that plaintiff should have judgment against Schatzinger for $1,770 and against the coal company for $330? How about the contract between plaintiff and the coal' company? Had plaintiff so carried out the contract as to entitle him to such judgment?

We take it that such adjustment of the equities arising from separate and independent contracts could only be arranged by a chancellor. The machinery of a jury trial could not work it out. Indeed, had the action been triable to a jury, the demurrer that separate causes of action against several defendants were improperly joined should have been sustained. That ground of demurrer, as provided by See. 5061 R. S. (See. 11309 G-. C.), is applicable particularly to the trial of jury cases. It was not applicable to the case at bar, if tried to the court, because all the parties in any way involved were properly before the court for a final determination, in one suit, of the entire controversy, and the settlement, upon equitable principles, of the rights and obligations, of all. And so, said demurrer was properly overruled.

As said by Judge Shauck in the ease of Bricker v. Elliott, 55 Ohio St. 577, 580 [45 N. E. 1045], a prolific source of equitable jurisdiction is the inadequacy of legal remedies, and upon that ground we base our conclusion that the case at bar was appealable.'

Motions overruled.


text:
    ‘FRAUDULENT CONVEY ANDES.
    [Cuyahoga (8th) Circuit Court,
    March 6, 1905.]
    Winch, Henry and Marvin, JJ.
    Newkirk v. Hattendorf.
    Deed Absolute Given By Debtor To Creditor, Treated As Mortgage.
    When a deed absolute in form was given by a debtor who was execution proof, to a creditor whose claim amounted to only a small portion of the value of the land deeded, the conveyance will be regarded as a security and treated in equity as a mortgage and not as a sale.

      W. J. Patterson, for plaintiff.

      A. W. Gibbons, for defendant.
   WINCH, J.

In this case we are asked to find that a deed, absolute on its face, is a mortgage, and we have considered the evidence under guidance of the rule laid down by the Supreme Court in the case of Boughman v. Boughman, 69 Ohio St. 273 [69 N. E. 430], where it is said that “equity requires that parol evidence to in-graft an express trust in lands upon a deed absolute shall clearly and convincingly show that contemporaneously with the execution of the deed the terms of the trust were declared. ’ ’

We start with the conceded fact that at the time of the execution of the deed in question the plaintiff was indebted to the defendant in the sum of $75, for which he had given the defendant his note. The consideration named in the deed is “$75 and other valuable considerations.”

Plaintiff says that the other valuable consideration was credit for groceries to be furnished by defendant who kept a grocery store. It is conceded that after agreement to deliver the deed, groceries of the value of $15 were furnished by defendant to plaintiff. From this point on .there is a conflict of testimony. Plaintiff says that at the delivery of the deed it was ■agreed between the parties that the same should be held by defendant as security for said pre-existing indebtedness of $75 and for such further groceries as plaintiff might become indebted for to defendant, in a reasonable amount, and, upon payment of said amount by plaintiff to defendant, the latter should reconvey the premises to the plaintiff. Defendant says that the deed was without conditions and was delivered to him for the consideration of $90, $75 of which was the said pre-existing debt and $15 to be paid by him to plaintiff in groceries, which he has paid. It appears that the plaintiff’s note held by the defendant was never returned to the former.

The conceded facts in the case are very nearly controlling as to how it should be decided and appear to bring it within the fourth paragraph of the syllabus of the case of Wilson v. Giddings, 28 Ohio St. 554.

“Where a deed absolute in form is accompanied as part of the transaction, by a matter of condition or defeasance, expressed in the conveyance or contained in a separate instrument, or exists in parol, whether the consideration be a pre-existing debt or present advance of money, if the relation of borrower and lender, debtor and creditor, exists between the parties, the conveyance will be regarded as a security, and treated in equity as a mortgage and not as a sale, either absolute or conditional.”

Clearly in this ease the relation of debtor and creditor existed between the parties and further facts shown in evidence tend to substantiate the plaintiff’s claim.

The witness, Charles Millington, testified to an admission made by the defendant to him that the plaintiff had deeded the lot upon the agreement claimed. This admission was made by defendant upon an occasion after delivery of the deed when the witness went to defendant’s store to get groceries for the plaintiff.

The consideration defendant claims to have paid for the lot is grossly inadequate, for we find from the evidence of credible ■witnesses that at the time the deed was delivered the premises were worth about three times $90.

The situation of the plaintiff at the time and the surrounding circumstances lend color to his claim. He was much involved financially; this cheap lot was the only unincumbered property he owned; he was execution proof, for this lot could not have been taken from him by the' defendant, by legal proceedings, in satisfaction of his debt. Is it reasonable to suppose that under such circumstances, in great need of credit upon which to obtain the necessaries of life, he voluntarily conveyed this lot to defendant in satisfaction of a debt, the payment of which does not appear to have been pressed by defendant ? We think not.

It appearing that defendant has sold the lot for what is conceded to be its reasonable value, he must account to plaintiff for the proceeds of such sale, after deducting therefrom said sum of $90 with interest and taxes and other legitimate charges paid by the defendant.

Decree for plaintiff.

Henry and Marvin, JJ., concur.


author: MARVIN, J.

text:
    INSURANCE.
    [Cuyahoga (8th) Circuit Court,
    January 20, 1908.]
    Marvin, Winch and Henry, JJ.
    New York Life Ins. Co. v. Trust Co.
    1. Insurance Company Not Estopped By Custom Of Its Agent.
    Where a policy of insurance provided that premiums should be payable at the home office of the company on a certain date in each year but that they might be paid to any agent of the company producing receipts therefor signed by the president, a vice-president, actuary or secretary of the company, and a policy holder paid to an agency of the company his yearly premhim, receiving therefor a receipt which was not signed by any of the specified officers. Held: That the company would not be bound by any custom prevailing at the agency in question in receiving premiums and issuing receipts other than the receipts specified in the policy unless it had actual notice of the custom, or that the custom had continued so long and the manner of doing business was such as that in the nature of things the insurance company should and would have Known of it by the exercise of reasonable care.
    2. When Question Of Agency Should Be Submitted To Jury.
    Where an agency of an insurance company receives a premium and issues a receipt therefor, other than the official receipt provided for In the policy, if it does so for the purpose of forwarding the premium received to the home office or to the agencv through which the policy was issued, it thereby becomes the agent of the insured and not the insurer, and the question of whether or not It is so acting should be submitted to the jury where the company denies the receipt of a premium.
    Error.

      Garf,eld, Howe & Westenhaver, for plaintiff in error.

      Bacon & Clay and W. H. Boyd, for defendant in error.
   MARVIN, J.

On June 21, 1902, the New York Life Insurance Co. issued to Richard W. Taylor, Jr., a policy on his life to the amount of $5,000. This policy was issued from the Park Row branch of the company in New York City, and not from the home office. At the time the policy was issued the first installment of premium, amounting to $140.55, was paid by Taylor, the policy itself containing a receipt for such payment. And it was provided in the policy that the same should continue in force until the death, of the insured, provided there should be paid on June 21, 1903, and thereafter on June 21 of each succeeding year a premium in the amount of $140.55. It was further provided that if any premium was not paid at the date when it became due, the insurance should automatically continue for the period of 60 days after such payment became due. It was further provided in the policy that:

“1. Only the president, a vice president, the actuary or the secretary has power in behalf of the company to make or modify this or any contract of insurance, or to extend the time for paying any premium, and the company shall not be bound by any promise or representation heretofore or hereafter given by any person other than the above.
“2. Premiums are due and payable at the home office, unless otherwise agreed in writing, but may be paid to any agent producing receipts signed by one of the above named officers and countersigned by the agent. If any premium is not paid on or before the date when due, the liability of the company shall be only as hereinbefore provided for such ease. ’ ’

It was further provided that if the premium was not paid when due, the company would restore the policy as of the date of such non-payment on .the payment of the premium as within one month after the due date, with interest at the rate of 5 per cent per annum.

This period of one month is spoken of as “ the one month of grace. ” It is further provided that the insured, if payment is not made at the time it becomes due, or within one month thereafter, could only be reinstated on written application from the home office with evidence of insurability, etc.

The insurance company maintain an office known as the Cleveland branch in the city of Cleveland, from which policies were issued and at which payments of premiums were made. At this office there was a cashier, an assistant cashier and a number of clerks! Taylor was the cashier of this office for a considerable period, and so was familiar with the manner of doing business in this office, but was not such at the time this policy was issued. The policy spoken of was assigned by Taylor to the City Trust Co., and such assignment was registered at the home office of the company. Taylor died on September 10, 1903, and the trust company brought suit against the insurance company upon the policy. The insurance company denied liability, one of the grounds being that the installment of premium due on June 21, 1903, was not paid either at that date or at any date, and in any event that it was not paid nor attempted to be paid until more than one month after the date when it became due. This was the main issue tried in the case. The result of the trial was a verdict and judgment for the trust company, and this proceeding is brought by the insurance company seeking to reverse that judgment.

The claim on the part of the trust company was and is that this premium was paid at the Cleveland office on June 22, 1903, to Eward C. Kilfoyle, who was then the assistant cashier at the Cleveland office, and that by the course of business carried on for a long period of time before this payment, a custom was established, known to the insurance company, of payments being: made in this wise to officers and clerks in charge of the Cleveland office. It is conceded, that Kilfoyle did not deliver to Taylor at the time this payment was made a receipt signed by either the president, a vice-president, actuary or secretary of the company, nor did he have in his possession any such receipt which he could have delivered to Taylor, but, it is said, that he did deliver a receipt to Taylor reading as follows:

ClevblaND, 0., June 22, 1903.
“Received from R. W. Taylor, Jr., one hundred and forty and 55-100 dollars, prem. due June 21, 1903; policy No. 3295168.
$140.55.”

On which receipt was stamped by a stamp of the insurance company the words “New York Life Insurance Company,” and that this was signed “C. E. Griffey, Cashier, Kilfoyle.”

This receipt was offered in evidence. Objection was made to its being received. This objection was overruled and an exception noted. It is claimed that this was error. We find no error in the admission of this receipt, when coupled with proper instructions as to what must be shown on the part of the trust company to make such receipt binding upon the insurance company. It should be said here that it was established that the words stamped upon the receipt were so stamped by Kilfoyle and that he wrote the words, “C. E. Griffey, Cashier,” and signed his own name “Kilfoyle.” Of course since the payment to Kilfoyle, if it were made, could not avail the trust company, unless authority in Kilfoyle to receive and receipt for the money was shown, one of the things necessary to make the case of the trust company' was to show that payment was made; that to be followed by showing that the party to whom such payment was made had authority from the company in some manner to receive and receipt for the money. As a step in making this proof we think it was proper that the receipt should have been admitted in evidence. There remained, howéver, the necessity of proving that Kilfoyle had the proper authority. It is not claimed that there was any express authority given to Kilfoyle or to any other officer or employee of the company at the Cleveland office, but it is urged that such authority could be shown by a custom long continued, known to and acquiesced in by the company. Evidence was introduced tending to show such custom ; at any rate tending to show that both Griffey and Kilfoyle had received money in payment for installments of premiums on policies not issued from the Cleveland office, and for which no receipt signed by the officers specified as those whose signatures must appear on the receipt to make it valid, and that money so received by these parties was forwarded to the home office or to the branch office at which such policy was issued.

Kilfoyle denied that the money was paid to him or that any payment was made to him on account of this policy at the time the receipt was dated, but he makes po satisfactory explanation of how the receipt came to be given. Besides this denial on the part of Kilfoyle that there was no payment made to him at the time the receipt is dated, there is evidence of a transaction on July 23, 1903, which tends to sustain this denial on the part of Kilfoyle.

The jury reached the conclusion that the money was paid to Kilfoyle on June 22, and that this receipt was given to Taylor on that day. A majority of the court do not feel that we would be justified in reversing the judgment on this, as being against the weight of the evidence, though it must be conceded that it is not unlikely that another jury with the same evidence might come to a different conclusion.

On the part of the plaintiff in error it is urged, that in the face of the written provisions of the policy, to which attention has been called, no custom shown to have existed at the Cleveland office of receiving payments of premiums in cases like the one under consideration, could constitute a waiver on the part of the company; that the exact terms of the policy should be complied with. With this proposition we do not agree. The several members of this court, however, are not at one upon all of the propositions involved in this ease, but we are all agreed that the insurance company could not be bound by any custom prevailing at the Cleveland office of which it did not either have actual notice, or that the custom had continued so long and the manner of doing business was such as that in the nature of things the insurance company ought to have known of it, and would have known of it by the exercise of reasonable care, and we are of the opinion that judgment should be reversed for failure on the part of the court to give to the jury the ninth proposition, which was requested by the insurance company to be given to the jury, before argument, reading as follows:

“The court further charges the jury that the act of C. E. Griffey or said E. C. Kilfoyle, or any other agent of the defendant company in receiving or 'attempting to receive money from insured persons on account of premiums on policies at its office in Cleveland at times when the premium receipt signed as required by the terms of said policy had not been forwarded to said office, if such receipt was for the purpose merely of forwarding such money separately to the home office or to the office or agent, in possession of the official receipt, does not constitute a custom of practice which can be relied upon as evidence of a waiver on the part of the company of the provisions of the policy requiring payment only to be made at the home office unless otherwise agreed in writing or to an agent producing a receipt signed by the-president, a vice-president, the actuary or secretary of the company, but such act of said agent or other person is to be regarded as making such person the agent of the party paying the money for the purpose of remitting the same to the-person duly authorized to receive it.”

And we are further agreed that the case should be reversed by reason of the following language which was the last instruction given by the court to the jury in its general charge.

This reads:

“But if you find from the evidence and by the greater weight of the evidence that Taylor paid this money on June 22, 3903, that this money was paid and received at the local office of the defendant company, paid to the agent of the company or to his assistant; and you find that it was the custom of said branch, office and its officers for a long time prior to June 22, 1903, to accept such payments in the absence of the official receipt, then you will return a verdict for the plaintiff for the full amount, together with the interest from December, 1903, to the first day of this term of court, to wit, April 1, 1907.”

This proposition leaves out the essential element that this, custom was known to the insurance company and assumes that if it had existed for a long time prior to June 22, 1903, the company-must have known of the custom.

The words, “for a long time,” are indefinite, and might be construed by the jury as meaning several months or several years, and might naturally be construed by the jury as an instruction to find on such custom and against the insurance company without reference to whether the custom had ever come to the knowledge of the officers of the company or to the company itself.

Immediately preceding the instructions last quoted, the court used this language:

‘ ‘ Or, if you find that the transaction of July 23 — a month thereafter and a day — related'to this policy and this premium, then your verdict will have to be for the defendant. That is, if the money paid to the defendant company by Taylor on J>v'y 23, included or intended to include the $140.55 due and pay&uu on this policy, your verdict will have to be for the defendant. Or, if you find from the evidence and from the preponderance. of the evidence that the sum of $140.55 was paid by Richard W. Taylor on June 22, but was paid to a person not authorized to receive it, was paid to an agent of the defendant company whom Taylor knew, or by the exercise of ordinary care could have known, had no authority to receive such payment, and that there ivas no custom or practice in said office of taking and collecting premiums in the absence of official receipts. The lan-known to the defendant that there was no such custom, then your verdict will have to be for the defendant in this case. ’ ’

It can not be doubted that this statement is a true statement of the law, but We think the implication in the statement is that the verdict could only be found for the defendant so far as this matter of paying to the proper person is concerned, unless they should find that Taylor affirmatively knew that the party to whom he paid was not authorized to receive it, or knew that there was no custom of practice in said office of taking and collecting premiums in the absence of official receipts. The language used to the jury was calculated to mislead them, and might well be considered by them as an instruction that, in order to relieve the company from liability by reason of this payment, it must affirmatively appear that Taylor knew that the party whom he paid was not entitled to receive it.

For the reasons pointed out the judgment in this case is reversed and the cause remanded to the court of common pleas.

Winch and Henry, JJ., concur.


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    ANIMALS.
    [Cuyahoga (8th) Circuit Court,
    May 8, 1911.]
    Winch, Henry and Jones, JJ.
    J. B. Gibbs v. State of Ohio.
    Cruelty to Animals Statute Held Constitutional.
    Section 13376 G. C„ providing for the punishment of one found guilty of cruelty to animals, as therein specified, is constitutional.
    ERROR.

      Spear, Mills & Godfrey, for plaintiff in error.

      T. jE. Bushnell, for defendant in error.
   WINCH, J.

Gibbs was charged before a justice of the peace with cruelty to animals, tried without a jury, found guilty and fined ten dollars.

The common pleas court affirmed said judgment and the case is here for review, without bill of exceptions, the only claim made in this court being that the statutes under which Gibbs was convicted are unconstitutional.

Section 13376 G. C. as amended April 13, 1910 (101 0. L. 118), provides that one guilty of cruelty to animals as therein specified, “shall be fined not less than two dollars and not more than two hundred dollars for the first offense, and for each subsequent offense such persons shall be fined not less than ten dollars nor more than two hundred dollars and imprisoned not more than sixty days or both.

Sections 13432 to 13434 G. C. inclusive, provide for trial by jury in prosecutions before a justice of the peace, when imprisonment is a part of the punishment.

Section 13435 G. C. provides that:

“In such prosecutions, where a different punishment is provided for a second or subsequent offense, the information or affidavit upon which the prosecution is based, must charge that it is second or subsequent offense or the punishment shall be as for the first offense. ’ ’

The affidavit in this ease did not specify whether the offense charged was a first, second or subsequent offense.

It is urged that Sec. 13435 G. C. makes it possible for the person instituting a prosecution before a justice of the peace for an offense under Sec. 13376, G. C. to deprive the accused of trial by jury by neglecting to charge a second or subsequent offense under the statute.

This is claimed to be a delegation of legislative or judicial power to the prosecuting witness, inhibited by the constitution.

"We hold, however, that it is a rule of practice and procedure, constitutionally enacted for the benefit of the accused, protecting him against a sentence of imprisonment, unless the information or affidavit distinctly charge a second or subsequent offense.

Gibbs was tried as for a first offense; his punishment does not include imprisonment; had the law made no severer punishment for a second or subsequent offense, no claim would be made that any of his constitutional rights were infringed.

We fail to see what difference it makes to him that if he had been tried for some other and different offense, he might have had a trial by jury.

Judgment affirmed.

Henry and Jones, JJ., concur.


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    SALES.
    [Mahoning (7th) Circuit Court,
    March 31, 1911.]
    Norris, Winch and Marvin, JJ.
    Slocum-Bergren & Co. v. Limoges China Co.
    Puffing Of Wares Not Guaranty.
    A clause in a contract for the sale of two hundred packages of china whereby “the defendant agreed with and guaranteed to plaintiff that said two hundred packages of china should and would be sold to customers of the plaintiff within ninety days from the date of said contract” is not a contract of guaranty, is a mere puffing of wares, and furnishes no basis for a lawsuit, if plaintiff fails to sell the china within the ninety days.
    ERROR.
   WINCH, J.

This was an action for breach of contract of guaranty. The petition alleges that the plaintiff agreed to purchase from the defendant, and defendant agreed to sell to plaintiff, two hundred packages of coffee assortment china at the agreed price of $6' per package, and as part of said contract, on condition that the plaintiff would pay the purchase price, the defendant agreed with and guaranteed to plaintiff that said two hundred packages of china should and would be sold to customers of the plaintiff within ninety days from the date of said contract.

The petition further alleges the delivery of the china, payment therefor, and due diligence and effort of the plaintiff to sell the same to its customers, without avail; none of the china-being sold within ninety days, it offered to return it and demanded its money back, which being refused, it brought suit.

A demurrer to this petition was sustained and we think very properly.

We find in this so-called guaranty no warranty of the quality or value of the china, or its adaptability to any particular purpose; we find no guaranty of anything to be done about it by the vendor; it is said that plaintiff should and would sell two hundred packages to its customers but it does not appear that the plaintiff had that many customers; or any.

It is alleged that the plaintiff used all due diligence and effort to sell the same to its customers, but at what price does not appear, nor was there any agreement that it should be sold at any particular price.

This was more like a gambling contract or a bet than a. guaranty, and at that left the performance of the feat wholly within the power of the person guaranteed, as if I should say “I guarantee you can run a mile, if you try. ’ ’ Does this guarantee you against falling down, so that you can recover of me if 3mu do?

A guaranty has been defined to be the contract by which one person is bound to another for the fulfillment of a promise or-engagement of a third party. There was no third party in this ■case. The so-called guaranty was a mere puffing of wares and should have been so understood by plaintiff; had it desired more, it should have so contracted that the defendant would take off its hands all packages not sold at the end of ninety ■days. A suggestion of this kind would have saved this lawsuit. Judgment affirmed.

Marvin and Norris, JJ., concur.


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    MASTER AND SERVANT.
    [Mahoning (7th) Circuit Court,
    March 31, 1911.]
    Winch, Henry and Marvin, JJ.
    Andrew Serafino et al. v. Ralph Antinello.
    ¡Employe Hurt by Falling of-Window Sash Assumes Risk.
    A stick, with which a window is held open, is a simple device, and a laborer who crawls through a window so held open, forty or fifty times, with the stick in plain view, and finally knocks it out with his hand or foot and is injured by the falling sash, will be held to know the dangers attendant upon the situation and can not recover in an action against his employer for the latter’s alleged negligence in using the stick to keep the window open.
   WINCH, J.

In this case Antinello, who was a laborer, carrying mortar for bricklayers, recovered a .judgment against his employers for damages sustained by reason of a heavy window sash falling upon him and- cutting him upon the face, neck and arms.

Antinello mixed the mortar outdoors and carried it to the bricklayers who were working in the basement of a school house. He carried the mortar in a bucket to a large window, about four feet square, and set the bucket on the window sill, climbed through the window, and then carried the bucket and emptied it on the scaffolding near the bricklayers. The window sash was held by a stick at the side in the way cellar windows are frequently held open. Antinello went through this -window forty or fifty times in this manner, carrying mortar; the last time he climbed through the window with his arm or his leg he knocked out the stick supporting the sash and it came down and caused the. injuries sustained by him.

The evidence shows that some five or six windows in this basement were all open, the sash being sustained by sticks, as in the case of this window, and the o’oom inside was light; the accident happened about half past two o’clock in the afternoon of the seventeenth of July.

Antinello testified that he didn’t know how the sash was sustained; everybody else about the place knew that the windows were kept open by the use of sticks.

The jury was properly charged that the plaintiff could not recover if he had equal means with his employer of knowing how the sash was propped up, and yet it brought in a verdict for the plaintiff.

We think this verdict is not sustained by the evidence. A man couldn’t crawl through a window forty or fifty times without knowing about a stick at the side supporting the sash; he would have to watch that stick every time he went through the window, to avoid striking it with his feet. If he used his eyesight he would see the stick and know what it was there for; he would also know at a glance" what would happen if the stick was carelessly knocked out of place.

In view of the simple and common nature of this device for holding up this window sash and the numerous opportunities the plaintiff had of observing it, the jury was not warranted in finding that the plaintiff neither knew of the stick nor had means of knowing about it, and the dangers of knocking it out.

Judgment reversed for error in overruling the motion for a new trial on the ground that the verdict was not sustained by the evidence.

Henry and Marvin, JJ., concur.


text:
    HIGHWAYS.
    [Mahoning (7th) Circuit Court,
    March 31, 1911.]
    Winch, Henry and Marvin, JJ.
    Ensign E. Harding v. Frank Agnue et al.
    Road Districts and Commissioners’ Act Valid.
    Section 7695 G-. C. et seq., providing for road districts and the appointment of road commissioners and defining their duties, are constitutional.
   WINCH, J.

This was an action to restrain the commissioners of road district No. 1 of Mahoning county from issuing bonds for the improvement of roads within said district. No fault is found with the regularity of the appointment of said commissioners- or of any of their acts, but it is said that the acts under which they were appointed and are assuming to act, are unconstitutional.

These acts are now found in Chap. 5, Tit. 4 of the General Code, beginning at Sec. 7095.

The following are the various steps in the organization of a road district under the provisions of said chapter: Upon the filing of petitions from not less than two nor more than four townships in any county, signed by-at least fifty taxpayers of each of said townships, asking for the improvement of the public roads of such township, the county commissioners pass resolutions and spread them upon their journal, and within ten days thereafter such townships beeome a road district. After the expiration of ten days the county commissioners notify the trustee of the townships composing the alleged road district to place in nomination the names of suitable persons for road commissioners; from these names so placed in nomination, the county commissioners select a board of road commissioners; said board forthwith meets at the county seat and organizes by electing a president and secretary; their term of office is four years; before entering upon their duties they take an oath of office and give bond in the sum of $1,500; wdthin ten days thereafter said board of road commissioners notify the board of deputy state supervisors of elections of tbe county of its organization and thereupon the board of elections of the county submit to the electors of the district the question of improving the roads of the district; if a majority of the votes cast at such election is against improvement of roads, the road commissioners can not assess a tax, and their duties cease.

There are these constitutional objections raised:

First. It is said that this act contravenes Art. 2, Sec. 1, of the constitution, in that it confers legislative powers upon the electors of a road district; authorizes them to legislate a duly appointed board of road commissioners out of office. This does not appear upon the face of the act. No duties are imposed upon the commissioners until the people have voted to charge themselves with a general tax for improvement of the roads of that district: Hence, the people can not legislate them out of duties which they can not exercise before a vote.

In this case a favorable vote is shown by the petition and the point does not appear to be well taken.

Second. It is said that this law violates Art. 2, Sec. 20 of the constitution in that it permits the electors of the district to fix the term of office of the commissioners, while said section requires that the legislature shall fix the term of office of all officers. '

We think the law has fixed the term at four years; if it provides for removal within that term, it is no different from many other statutes which provide for removal of officers within their terms for various reasons.

Third. It is claimed that this law does not conform to Sec. 18 of the bill of rights, which provides that “no power of suspending laws shall ever be exercised except by the general assembly. ’ ’

We see no such vice here. It is a general enabling act, like the corporation statutes under which individuals may organize and dissolve corporations, and like the municipal code, under which municipal corporations may be created and dissolved.

Fourth. It is said that road commissioners are either township or county officers, and so must be elected, as provided in Art. 10, Secs. 2, 4 of the constitution.

We hold them to be district officers, and so not under this provision. They are more nearly like the directors of public service, in cities.

Petition dismissed.

Henry and Marvin, JJ., concur.