text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Giffen, JJ.
    THE CINCINNATI, LEBANON & NORTHERN RAILWAY COMPANY v. LOUIS PIERSON.

      Former adjudication in action on implied contract as basis for a ■new action on express contract—
    A suit can not be maintained upon an express agreement which the plaintiff predicates upon an adjudication in a previous case where recovery was sought upon the same cause of action, but covering a different period of time, the recovery in the -former case being upon a quantum meruit based upon an implied contract.
    Error to the Court of Common Pleas of Hamilton county.
    Swing, J.; Smith, P. J., and Giffen, J., concur.
   This is an action in this court to reverse the judgment of the court of common pleas of Hamilton county. In that court Pierson brought his action against the railway company for a breach of an alleged contract. The contract ■claimed to exist between the parties by Pierson was, that jin the year 1886 the defendant railway company constructed a well on his premises to obtain water for the use of its water tank, and that it continued to use the well from that year until the year 1895; and that- the railway company agreed to pay for the use of said water the sum of fifty dollars per year. Plaintiff further alleged that on the 18th: day of Feburary, 1895, he recovered a judgment against-, this defendant in said court of co'mmon pleas, in case No. 97680, on this same contract for the value of said water for six years ending December 31, 1893; that said judgment; was never reversed and is in full force, and that by reason thereof all questions of law and of fact as to said contract, were finally adjudicated as between these parties.

The defendant denied the allegations of the petition,

On the trial of the ease the only witness offered by the plaintiff was himself. He testified that about the year 1886 he entered into a contract with the Toledo, Cincinnati & St, Louis Railway Company, whereby he granted said company the .tight to construct a well on his premises, and to use water therefrom for its water tank, in return for which ha was to receive for himself and his wife an annual pass om said railroad; that his agreement was carried out by the-parties until said road was sold to said defendant, and that defendant refused to carry out said agreement; and that thereupon he wrote to George Hafer, president of said company, a letter in which he said that inasmuch as he had refused to abide by the contract made between him, Pierson,, and the said Toledo, Cincinnati & St. Louis Railway Company, he would charge him (Hafer) $50 per year for the use of the same (water), and that if these terms do not suit he had better get water elsewhere. •

The plaintiff further offered the record of the case set forth in the petition between the parties, which record discloses this state of facts: Plaintiff filed a petition in which he set out an agreement made between him and said Toledo, Cincinnati & St. Louis Railway Company, by which, for the privilege of constructing and maintaining the well on Pierson’s premises, said company agreed to furnish him passes for himself and wife, and the refusal of this company to adhere to said agreement; and that upon the refusal of said company to issue said passes he informed said company that he would charge said company the sum of $50 per year for the use of said water. Wherefore he alleged he had been damaged in the sum of $350, for which he asked judgment.

In'an amended petition the plaintiff said that upon the request of the defendant he granted to it the right to dig a well on his premises and lay pipes thereto and take water therefrom, and that defendant did construct said well, lay said pipes and take water therefrom since the year 1886, and that the reasonable value thereto is three hundred and fifty dollars ($350). Upon this amended petition the plaintiff recovered the judgment set out in this action. This was all the evidence, the plaintiff declining to offer any. The claim here is that the judgment in this case is not sustained by the evidence.

We are of the opinion that the judgment is not sustained by the evidence. The record of the former suit, which the plaintiff pleads as a final adjudication on the question as to the nature of the contract between the parties, clearly shows that in that case the plaintiff sued on and recovered on an action in quantum meruit. There was no claim in that action that there was an express agreement between this plaintiff and this defendant company. But in the present case the action is founded upon an express agreement between Pierson and this railway company, and what Pierson pleads as a final adjudication' between the parties shows there was an express contract, but an implied one. There is no evidence in this case, other than the said' record, except the letter referred to. Possibly this, taken in connection with their evidence, might show an agreement between the parties, but certainly it could not have that effect when considered in connection with the allegation of the plaintiff, Pierson, that the nature of the contract had been determined between the parties by a former judgment, and where that judgment shows that it was rendered on an implied promise to pay what the privilege was worth.

Robert Ramsey, for Plaintiff in Error,

Gorman & Thompson, contra.

The plaintiff should not recover on one contract in two different kinds of actions. Having recovered on an action in quantum meruit, he should not recover now on an express agreement. At any rate, he can not sustain a judgment on an express contract by evidence which shows that no express contract was made.

Judgment reversed and cause remanded for a new trial.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1899.)
    Before King, Haynes and Parker, JJ.
    NINNIE OTT, Adm’x., v. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY.

      Injury in other state — Right of action in this state depends on right in other state—
    <1). An action against a railroad company operating a railroad partly in this state and extending into a neighboring state, for damages for the death of plaintiff’s intestate — an employe of such company — alleged to have been caused by the negligence of such railroad company in the other state, can not be maintained unless by the laws of the state where the accident occurred a cause of action is given in such ease. And the fact that the contract for employment was entered into in this state does not alter the case.

      Same — No right of action here where none in other state—
    (2). The laws of the state where the accident occurred determine ail questions involving the right of action in such case, and if the plaintiff had no right of action there, the action can not be maintained in the state of Ohio.

      When action for injury in other state maintainable in Ohio — See. 6134 B. S.

    (3) . Section 6134a, Rev. Stat., which gives the right to sue in the courts of this state for damages for injury sustained by negligence in another state, also limits that right by providing that such actions can only be brought here where by the laws of the state where the injury was sustained such actions are allowed in its courts for injuries sustained in Ohio. The test as to the right to recover in this state in such cases must be found in the laws of the state where the cause of action arose.

      Oonductor and brakeman fellow servants in Michigan—

    (4) . Under the laws of Michigan, the conductor and a brakeman on a train are fellow servants, and the railroad company is not liable in damages for injury caused to the brakeman by the negligence of the oonductor.

      Law of other state question for court—
    (5) . Where the law of another state is involved in some doubt, the decisions of the courts of the state not being uniform, it is not a question foe the jury, but for the court to determine what the law of the other state on the question is.

      Negligence of conductor in operating cars — Safe place to work defined—
    (6) . Where the act of the conductor charged as negligent consisted in having a car placed on a spur-track so close to the main-track that the train in passing that point struck the car thus placed whereby the braueman was injured, the railway company can not be charged to have thereby failed to furnish a safe place for the brakeman to work at. Such act is only negligence on the part of the conductor in the manner of doing his work. The term “place”, as used in the rules upon that subject, implies some degree of permanency in the situation and surroundings.
    Error to the Court of Common Pleas of Lucas county.
   Parker, J.

The petition avers that John Ott, plaintiff’s decedent, was a brakeman, employed at Toledo, Ohio, to serve the defendant railway company in Ohio, Michigan and elsewhere on its line, and was injured cn the 8th of July, 1896, through the negligence of the conductor of the train cn which decedent was at work; such negligence of the conductor consisting in his allowing a freight car to be so placed on a “spur” track as that the car on which decedent was at work, in passing, failed to 'clear it, but struck it, throwing decedent from the train and injuring him so that he died.

At the close of plaintiff’s evidence the court below directed a verdict for the railroad company.

The facts which the evidence established, or tended to establish, are set out in an agreed statement.

The ruling of the court was founded upon a finding by the court that under the law of the state of Michigan, where decedent received said injury, the plaintiff could not have recovered in the courts of that state upon the facts proved, i. e., that the conductor through whose negligence deceased was injured was, under the law of Michigan, a fellow servant of decedent, hence there was no right of recovery in that state. That the laws of that state where the accident occurred determine all questions involving the right of action, and that because the plaintiff had no right of action enforcible there, she cannot recover here.

Plaintiff contends that the court erred in several particulars in arriving at these conclusions, viz:

First: In determining what the law of Michigan is on the subject, instead of submitting that question to the jury. And upon this proposition we are cited to Wilson v. Charleston Ry. Co. (Supreme Court, S. C. ), 28 S. E., 91, wherein it is said by the court that,

“The question of who are fellow servants is a mixed question of law and fact. It is for the court to define the relations of fellow servants, but it is for the jury to determine whether the employes in a particular case come within the definition”.

And it is argued that since the relations of conductors and brakemen are not fixed and uniform, but may be so in one case that the relation of fellow servants exists and in another the relation of servant and superior, or vice principal, or master, may exist, the rule stated in the case cited should have been followed, and the question whether deceased and his conductor were fellow servants, or superior and subordinate, should have been submitted to the jury under proper instructions as to the facts that give rise to those relations. It is possible that cases may arise where it would not be proper for a court to determine the question as was done in the case cited, but we think that here the court proceeded correctly. That the relation of conductor and brakeman existed was not controverted, and the scope of the authority of the one over the other, and of the duties of each to the master with respect to the common service were likewise agreed upon. There were, therefore, no controverted questions of fact with respect to these relations to be .submitted to the jury — a question of law only remaining, i. e., does the law determine that this brakeman and this conductor were fellow servants, or that the latter stood in place of the master with respect to the former. This question was for the court alone.

It has been suggested thatsince this question of law was involved in some doubt, the decisions of the courts in Michigan not being clear or uniform, therefore the whole question should have been submitted to the jury. We know of no authority supporting this proposition, and we deem it altogether untenable. The fact — if a fact — that the law may not be easily ascertained or applied because of conflicting decisions or other causes producing obscurity, would be an excellent reason for submitting the question to one learned in the law and accustomed to comparing different decisions, discriminating, distinguishing, reconciling, weighing, etc., to resolve nice questions and distinctions and arrive at the solution of the various questions involved. The very difficulties of the problem, and the unsuitableness of a jury to grapple with these difficulties, offer a strong reason for not submitting such questions to that tribunal,

The case of Alexander v. Railway Co., 48 Ohio St., 623, lays down the rule in this state upon this subject. The first clause of the syllabus states the law as follows:

“Where, on the trial of an issue respecting the law of another state, the decisions of the courts of that state are given in evidence to the jury, it is the province of the jury to determine whether or not such decisions have been made, but it is the duty of the court to construe, and deduce from them the rules of law which they establish.’’

And this court, in the case of Railway Co. v. Terry, 14 Circuit Court Reports, 536, has followed the supreme court, though without making special reference to the decision just cited.

Second: The plaintiff in error contends that the trial judge erred in his conclusions upon the evidence submitted as to the law of Michigan,

An examination of the cases introduced in evidence convinces us that the conclusions of the trial judge are correct.

We do not deem it expedient to enter into an analysis of those' cases. That of LaPierre v. Rail Road Co., 99 Mich., 212, wherein it is distinctly held that a conductor of a freight train is the fellow servant of a brakeman on the same train, is directly in point, and dispels any doubt that may have been raised by former utterances of that court. We do not agree with counsel for plaintiff in error that this utterance is a mere obiter dictum. That there were other sufficient grounds upon which to rest the decision is not sufficient to render this an obiter dictum. It was held that the plaintiff had assumed the risk, and that therefore he had no right of action. It might be urged that this also was an obiter dictum, because the court had held that the fact that the injury resulted from the fault of a fellow servant precluded a recovery, and that therefore there was no necessity for saying that he assumed the risk;' and so, it would turn out that the case would not be authority on any question, The fact that counsel may not hav9 dwelt upon this phase-of the case in argument does not destroy its authority.

Third: It is urged that the fault of the railway company consisted in not furnishing the deceased with a safe-place to work, and that this duty cannot be evaded by its-delegation to a fellow servant. That in placing the car on the “spur” track the conductor acted as and in the stead of the company, and thereby rendered the place where decedent was required to work unsafe. By this process of reasoning all distinctions between negligent operations and unsafe places may be readily obliterated. Anything misplaced anywhere on the line of the road by a servant whereby a fellow servant receives injury may afford a right of recovery on the ground that the piece furnished was not safe.

The place where the deceased was put at work was safe, so far -as appears, except for the temporary negligent disposal by a fellow servant of a car on the “spur” track. Now,this conductor does not appear to have been delegated with any special authority with respect to the placing of cars on “spur” tracks or elsewhere on the line of the road. His authority in the moving and placing of cars was similar to that possessed by the deceased. It was in the line of their common duty, and, as held in that state with respect thereto, the authority of the conductor was not so far superior to that of the brakeman as to render them other than fellow servants. Under such circumstances the conductor can not be said to represent the principal in providing a place, even if the placing of the car may be said to constitute providing a place. The term “place”, as used in the rules upon the subject, implies some degree of permanency in the situation and surroundings.

In the case chiefly relied upon by counsel for plaintiff in error, i. e., Palmer v. M. C. R. R. Co., 87 Mich,, 281, there was no question but the person directing the manner of performing the work was especially delegated with that power, but the question related to the manner in which the work wbb to be done, and not to the safety of the place, so that from the fact that in that case the cars were moving as the work of loading them progressed, no argument is properly deducible in support of the proposition that the idea of a place does not involve that of a degree of permanency.

Fourth, and lastly: It is contended that the law of Ohio, and not that of Michigan, should govern in determining whether the facts gave rise to a cause of action in favor of the plaintiff and against the defendant; and that by the laws of Ohio a right of action was given, since by section 3365-20 (being section 3 of an act passed in 1890, found in 87 Ohio Laws, 149), the relation of fellow servant did not exist, but the conductor became and was the superior of the brakeman. It is contended that these provisions apply to all railroad companies owning and operating, or operating, a railroad, in whole or in part,in this state, (section 3365-20, Revised Statutes), and to the employes of such companies; and that it applies to the relations of the parties when without as well as when within the limits of the state, so that in any case in the courts of this state, no matter where the cause of action may arise, the test of the relations cf such parties is to be found in this statute. Applying this to t he case at bar, it is said that though the right to enforce in the courts of Ohio the cause of action arising in Michigan may depend upon section 6134, Revised Statutes, whether a cause of action arose upon the facts stated is to be determined, in so far as the question of the relations of the conductor and brakeman are involved, not by the laws of Michigan,but by section 3365-20, Revised Statutes.

It is also contended that since the contract from which arose the relation of master and'servant between deceased and the railway company, was entered into in Ohio, and the parties thereto were citizens of Ohio, this statute should ■be read into the contract to fix the relations of the contracting parties to one another, and to determine the relations of deceased to his co-employes in so far as the right and obligation of the contracting parties as between themselves may be affected thereby; and it is said that this cause of action grows out of the violation by the railway company of its duty to the deceased arising out of this contract, or the relation created by the contract, to exercise care that he might not be injure. That the cause of action, though sounding in tort,is dependent upon or modified by the contractual right of the parties, and that, for these reasons, this statute should be given effect when the enforcement of this cause of action is sought in the courts of this state.

This court does not concur in the premises or conclusion of counsel as applied to this case. What view should be taken of certain of these propositions if this were a case between an injured emplpye and a railroad company, or a case other than one by a representative of beneficiaries to recover on account of the death of her decedent caused by the wrongful act, neglect or default of another, we need not now inquire.

The right to maintain an action of this character is given by thejact of April 30, 1880, (77 Ohio Laws, 207), and the amendment thereto, constituting sections 6134, 6134a and 6135, Revised Statutes, and the right is not only created, but it is limited by this statute, and section 6134a expressly provides that “Whenever death has been or may be caused by a wrongful act, neglect of default in another state, territory or foreign country, for which a right to maintain an action and recover damages in respect thereof is given by a statute of such other state, territory or foreign country, such right of action may be enforced in this state in all cases where such other state, territory or foreign country allows the"enforcement in its courts of the statute of this state of a like character. ” * * *

This, according to our view, clearly provides a limitation upon the right to sue and recover in this state, to-wit, that the law of the state where the negligent act or default occurs must give a right to maintain an action and recover damages in respect thereof. The test as to the right to recover in this state in such cases must be found in the laws of the state where the acts took place which are claimed to have given rise to the cause of action.

In the case of Railway Company v. Terry, 14 Circuit Court Reports, 536, which was for an injury resulting in death in the state of Indiana, it was charged in the petition that the engineer of the train upon which decedent was at work was negligent, and that through his negligence the accident occurred, and plaintiff sought to avail herself of that allegation and of the laws of Indiana applicable thereto by alleging that in the state of Indiana there is a statute making the defendant responsible for the acts of persons in charge of the locomotive. It will be seen that according to this averment the laws of Indiana establish a different rule of liability from that established by the law of Ohio, applied to the same circumstances. The contention of the plaintiff in that case was sustained by the court; in other words, it was held, in effect, that even though a cause of action would not arise under the laws of Ohio upon the facts and circumstance» of the case, yet it was competent to show that such cause of action would arise under the laws of Indiana where the accident occurred, and that such cause of action could be enforced in the courts of Ohio, since the laws of Indiana allowed the enforcement in its courts of the statute of this state of a like character. Certainly it cannot be claimed that a party may come into the courts of Ohio, and there exercise an option to have his cause of action determined by the law of the forum or by the law of the place where the cause of action arose; and we think it is clear that it must be determined by the law of the place where the cause of action arose.

In the case of Railroad Company v. Andrews, Administrator, 14 Circuit Court, 564, this court has held that it is sufficient to aver in the petition, in an action for damages for death caused by a railroad company in another state, brought in Ohio, that a right of action exists in the other state, either by statute of the state,or under the decisions of its courts, by which an action on facts of the character set out in the petition, is provided, and that a right to enforce in the courts of such other state the statute of Ohio in actions of like character is given. And in the course of his opinion, Judge King says, for the court:

“It was necessary for the plaintiff to plead that an action might have been brought upon this cause of action in the state of Michigan,” etc.

We think the complement of the proposition stated in the syllabus in this case is also the law, that is, that the action cannot be maintained in Ohio except upon allegations and proof that a cause of action was recognized and a right of action given in the particular case by tne law of the state where the act or default producing death occurred or was done; that there is no right of action on account of such acf or default occurring in another state, given or recognized or existing in this state independent of the statute upon the subject that has been quoted.

In this connection the case of Pennsylvania Co. v. McCann, 54 Ohio St., 10, has been pressed upon our attention by counsel for the plaintiff in error, and it is urged that the doctrine which controlled the court in that decision requires us to hold in this case that the law of the forum is to determine whether or not a cause of action arose in favor of the plaintiff. The law there under consideration applied to the remedy, and not to the question of the right,or whether a cause of action existed, As said by the court:

“The rules of evidence pertain to the remedy, and usually are the same whether the cause of action in which they are applied arises within or without the state whoso tribunal is investigating the facts in contention between the parties before it. Nor is it material in this respect whether the parties are residents or non-residents of the state. The law of evidence in its ordinary operation is no more affected by one of these considerations than by the other. No extra-territorial effect is given to a statute creating a rule of evidence by the fact that the rule is applied to the trial of a cause of action arising in another state, or to the trial of an action between parties who are non-residents. If the tribunals of a state obtain jurisdiction of the parties and the cause, it will conduct the investigation of the facts in controversy between them according to its own rules of evidence, which is, simply to follow its own laws within its own borders.”

Hurd, Brumback & Thatcher, for Plaintiff in Error.

Potter & Emery, for Defendant in Error.

And the court holds that the.statute under consideration is not limited in its application to causes of action arising within the state.. Whether it would be competent for the general assembly to give a right of action enforciblein this state as between citizens of this state on account of a wrong or default committed outside of the limits of the state, or whether in giving a statute such extra-territorial effect the general assembly would transcend its constitutional power, though earnestly and learnedly discussed before us, we do not find it necessary to consider, for we find, as before stated, that the limitation governing the right of action in this case is provided by the express terms of section G134a, Revised Statutes of Ohio, and that limitation we hold precludes a recovery by the plaintiff upon the facts disclosed by the record.

The judgment of the court of common pleas will be affirmed.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Giffen, JJ.
    THE STATE OF OHIO, ex rel. THE VILLAGE OF PLEASANT RIDGE v. HENRY K. STALEY, Mayor.

      Mandamus to compel mayor to sign bonds — What petition must aver—

    The Mayor of a village can not be compelled by mandamus to sign bonds issued by the village for the purpose of extending the time of payment of an existing and binding obligation, unless the petition alleges that council has determined the particular indebtedness to'be valid which it is proposed tore-fund or extend, the aggregate amount of bonds to be issued, their denomination, rate of interest, date of maturity, place of payment, etc. in full conformity with the provisions of sec. 2701R. S.; and if the allegations are denied,there must be proof that council has substantially complied with the requirements of the statute.
    In Mandamus.
   Smith, J.

We are of the. opinion that the demurrer of the defendant to the petition should be sustained upon the ground that it does not state facts sufficient to constitute a cause of action against him.

Section 2701, Revised Statutes, authorizes the council of a municipal corporation “for the purpose of extending the time for' the payment of any indebtedness, which from its limits of taxation such corporation is unable to pay at maturity,.or when it appears to the said trustees or council for the best interest of said municipal corporation to issue bonds of such corporation, or borrow money so as to change but not to increase the indebtedness, in such amounts and for such length of time and at such rate of interest as the council may deem proper, not to exceed the rate of six per cent, per annum, payable annually or semi-annually; provided, however, that no indebtedness of any such municipal corporation shall be funded, refunded or extended, unless such indebtedness shall first be determined to be an existing, valid and binding obligation of any such municipal corporation, by a formal resolution of the trustees or counoil of such municipal corporation, which resolution shall also state the amount of the existing indebtedness to be funded, refunded or extended, the aggregate amount of bonds to be issued therefor, their number and denomination, the date of maturity, the rate of interest they shall bear, and the place of payment of principal and interest,”

The allegations of the petition in this case, brought to compel the mayor of the village to sign bonds claimed to have been issued by the village under the provisions of this section, on this point are substantially these:

‘‘That on or about the 21st day of January, A, D. 1899, the council of'said village, then sitting in regular session, duly passed and adopted a resolution entitled, ‘A resolution declaring certain indebtedness to be existing, valid and binding obligations of the village of Pleasant Ridge, Hamilton county, Ohio, and providing for the issuing of bonds to change and extend the time of payment of the same’ ”

The petition further states that upon the same day the council of the said village duly passed and adopted an ordinance, numbered 397, and entitled, ‘‘An ordinance to issue bonds in the sum of $7,534,08, to change and extend the time of payment of certain indebtedness heretofore incurred for certain improvements, and heretofore declared by resolution of the village council to be existing, valid and binding obligations of the village of Pleasant Ridge, Ohio.” These are the only references made in the pleading to the said resolution or ordinance, except that the petition subsequently states ‘‘that said resolution and ordinance provided for interest coupons to be attached to said bonds, and interest to be at the rate of five per cent., payable annually.”

It is manifest, therefore, that in the petition it is not alleged, nor is it made to appear to the court, that the resolution itself did declare and determine any particular indebtedness to be an existing, valid and binding obligation of such village, nor that it stated that amount of the existng indebtedness to be funded, refunded or extended, or the aggregate amount of bonds to be issued therefor, their number and denomniation, the date of maturity, the rate of interest they shall bear, and the place of payment of principal and interest. All of these things seem by the statute necessary to be done before the council is authorized to issue the bonds, And in our judgment, it is necessary in this proceeding to compel the mayor to sign said bonds, to aver in the petition, and if denied, to prove that these requirements of the statutes have been substantially complied-with.

J. J. Acomb, for Plaintiff.

James R. Mack, contra,

For these reasons we hold that the demurrer .should be sustained. Leave will be given the plaintiff to amend the petition within such time as he debires, and leave to defendant to plead or demur within three days thereafter, so that the case may be speedily submitted if desired by the parties.


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1896.)
    Before King, Haynes and Parker, JJ.
    THE ELEVENTH STREET CHURCH OF CHRIST et al. v. JAMES B. PENNINGTON.

      Specific performance — Discretion of court—

    (1) . The granting of equitable relief by decreeing~speciñc performance of a contract for the sale of land is within the discretion of the court of equity, and is not demandable as an absolute right; but such discretion is not to be arbitrarily exercised, but is to be guided by the well settled principles of equity.

      Finding of court of equity same weight as verdict by jury—

    (2) . Where the findings and conclusions of a court of equity are attacked on error, they are entitled to the same weight and consideration as the verdict of a jury, and they will not be disturbed unless manifestly opposed to or unsupported by the evidence.

      Delay in bringing suit — What not laches—
    (3). Where an action for specific performance of a contract for the sale of land,made in 1893,is instituted after a lapse of four years, but it appears that during all this time the parties have been negotiating for a settlement and thar such delay was chiefly caused by the solicitations of defendant, plaintiff will not be considered guilty of laches.

      Parol evidence to add terms to written contract inadmissible—
    (41. Where is it claimed that the written contract sued on does not contain all the terms agreed upon, parol evidence to show additional terms will not be admitted unless such fraud or mistake is averred as would entitle the party to a reformation of the contract.

      Tender of deed, when not necessary — Vain thing—
    (5). Wnere, in a contract of sale of reality it is obvious from the actions of the proposed buyer that be will not accept a conveyance of the title, a tender of a deed by the vendor would be a useless ceremony, and such tender is not necessary to entitle the vendor to sue on the contract for specific performance.
    Error to the Court of Common Pleas of Lucas county,
   Parker, J.

This action in the court below was by a vendor of real estate against his vendees to recover- the contract’ price of certain real estate sold, and to foreclose the vendor’s lien upon the premises, and a personal judgment was prayed for. The contract sued upon reads as follows:

“Toledo, O., Feb. 1, 1893.
“James B. Pennington hereby sells,and E. J. Cannan, 1). L. Matthews, A..C. Butler, individually and for the Eleventh street church of Christ, of Toledo, Ohio, buy lots 2 and 3, Shaw’s addition to Toledo, Ohio, for the sum of twenty-four hundred ($2,400.00) dollars, on the following terms: $100.00 in cash, $500.00 on May 1st, 1893, $600.00 on. October 1st, 1894, $600.00 on October 1st, 1895, and $600.00 on October. 1st, 1896, interest at 6 per cent, per annum, payable annually, secured by mortgage on premises conveyed, with privilege of paying any note before due.
“Said purchasers agree to refund the amount of taxes and assessments paid by said Pennington for December, 1892, Opinion of title furnished by Pennington.
“James B. Pennington,
“By C. A, Thatcher, his Attorney,
“Edwin J. Oannan,
“D. L. Matthews,
“A. C. Butler.”

The decree below was in accordance with the prayer of the petition.

Plaintiffs in error contend that there is error in the record in the following particulars:

First: That the petition does not state and the evidence does not show that the defendant in error ever tendered a deed to the plaintiffs in error.

Second: That the evidence discloses that the defendant in error was guilty of such laches in proceeding to enforce specific performance that he ought not now to be permitted to pursue that remedy.

Third: That the court erred in refusing to admit evidence offered on behalf of plaintiffs in error tending to show that there were other terms to the coutract in question, not reduced to writing, materially modifying the written terms and the rights of the parties herein.

As to the first point, that is, the failure to aver or prove tender of a deed. The petition contains the averment that plaintiff “has in all respects fulfilled and performed all things in said contract to be by him performed, and has at all times been, and is now, ready, able and willing to carry out the same, but that the said defendants have failed and refused to pay any farther sum upon said contract, and still refuse to carry out the terms of the same and be bound thereby”. The petition also contains the averment, and the evidence shows that the plaintiffs in error had made the down payment of $100 provided for in the contract, and h$d subsequently reimbursed defendant in error on account of certain taxes by him paid on the property which should have been paid by plaintiffs in error, and that plaintiffs in error have not paid anything more under the contract, that is, no part of the $500 due May 1st, 1893, the $600 due October 1st, 1894, $600 due October 1, 1895, or the $600 due October 1, 1896, or the interest thereon, The pleadings and the evidence clearly show that plaintiffs in error have not at any time since the contract was entered into, (unless for a very brief period immediately thereafter), been ready or willing to pay the purchase price or accept a deed, but that, on the other hand, they have been quite unwilling to do either. Whether they have been justified in their attitude and conduct is a question quite aside from that we are now considering, and that question will be discussed hereafter. The justification claimed is that the title was not as clear and perfect as plaintiffs in error were entitled to require, and plaintiffs in error say that this discovery was made in 1893, and that this claim was then and ever since has been insisted upon by them. Edwin J. Cannan, one of the parties to the contract and one of the representatives of the church, testifying on behalf of the plaintiffs in error, says that they notified Mr. Thatcher, the agent of the defendant in error, as soon as the abstract was furnished, that the property would not be “needed”, and that this was before May, 1893. That when they discovered that the title was not good they tried to drop it immediately. He adds,“We never made any pretense to pay for it after that. All the dealings and action which was taken after that was simply to try to close it up”; that is, as he explains, to settle and. adjust the matter upon the basis of not taking the property, but by paying whatever might be required and agreed upon in satisfaction of any claim the defendant in error might have growing out of the transaction. And in a letter to the defendant in error, (which is not, dfted, but which was written before this suit was begun), this witness urges the defendant in error to release the vendees from the contract, upon fair terms, and says: “We cannot carry out our agreement. ” That in all these expressions he voices the sentiments and purposes of all the vendees is apparent, Their resolution to not accept a conveyance of the title to the property and pay the purchase price as agreed, was fixed, and defendant in error was so notified. Proceeding upon this resolution, the church society had purchased a lot elsewhere and built a church edifice upon it, and this property having been purchased for that purpose, the plaintiffs in error had no farther use for it. It is plain that if a deed had been formally tendered, it would have been rejected, so that its tender would have been a useless ceremony. Such tender was not necessary to put the plaintiffs in error in default as to the performance of the contract. That defendant in error was strenuously insisting upon the carrying out of the contract and upon all of his rights under it from the time it was made until suit was brought is equally clear. We hold that under these circumstances defendant in error was not required to tender a deed as a condition precedent to the institution of this suit or the granting of the relief afforded by the decree herein.

Second: Was the defendant in error guilty-. of such laches in deferring bringing this suit until the 16th of December, 1897, as requires a court of equity to refuse to grant the relief prayed for an'd granted? ,

It is urged that the granting of equitable relief by the way of decreeing the specific performance of a contract for the purchase of land, is within the discretion of a court of equity; that parties may not demand such relief as an absolute right, But it is conceded — as it must be — that this discretion -to grantor refuse such equitable relief is not to be arbitrarily exercised, but is to be guided by the well fettled principles of equity. In other words, a court of equity will not decree specific performance where it would, be unjust or inequitable to do so. Sitting as a court of error to review the action of the chancellor in this case, we are not at liberty to disturb his findings and decree, unless it shall appear from the record that he has disregarded and violated these principles — that he has abused this discretion. We have not the same freedom and authority in the premises as if the case were here on appeal. The conclusions of the court below upon the facts are entitled to fully as much consideration as those of a jury where its verdict is under review on error/ While calling attention to this, we do not wish to have it understood that we deem it necessary in this case to invoke any strict rules in favor of the decree in order that it may be sustained. We think the record wholly fails to show any culpable laches on the part of the defendant in error; much less does it show any conduct on his part that may have been relied on and acted upon by plaintiff in error so that to now decree specific performance would be inequitable. As before stated, defendant in error has strenuously and continuously since the contract was made insisted upon performance. Plaintiffs in error h'kve tried to adjust the matter in difference on the basis of payment of damages, and defendant in error has entertained their propositions and has made counter propositions in the same line, but all this came to naught. They failed to agree. But it will be observed that defendant in error has not said or done anything to indicate that he would forego his right to insist upon specific performance, unless or until his claim might be otherwise adjusted to his satisfaction.

It appears that soon after plaintiffs in error resolved to not accept this property, they built their church upon other lots, and there is some evidence tending to show that defendant in error, or his agent, knew that this church was being built. There is nothing to indicate that the defendant in error, or his agent, in any way promoted the building of this church, or encouraged plaintiff in error therein, or led them to believe that if they did so they need not accept the property he had sold them. Defendant in error, even if he knew this church was being built, could not have prevented or hindered it, and the circumstances did not require him to say or do anything about it. The delay to sue, under the circumstances appearing, worked no prejudice to the interests of plaintiff in error, or the right of defendant in error. The delay seems to have been caused chiefly by the solicitations of the plaintiffs in error, and so that they might, by making a resale of the property, or otherwise, satisfy the demands of the defendant in error, and avoid being brought into court,

Third: Did the court err in excluding the evidence offered by plaintiffs in error of the part of the contract alleged to have rested in parol?

The averment of the answer upon this subject is as follows: “They admit the execution of Exhibit “A” attached to said petition”, (and Exhibit ‘A’ is the contract which I have read), ’’and say that the verbal contract hereinafter alleged for the purchase of the real state described in said petition, is only in part evidenced by said Exhibit ‘A’. * * * “Defendants further say that on or about the 1st day of February, 1893, plaintiff and defendant, the Eleventh street church of Christ, entered into a verbal contract and negotiated for the purchase of the real estate described in the petition, >upon the terms mentioned therein in said Exhibit ‘A’, but that it was further provided in said contract and understood, promised and agreed, by and between said parties plaintiff and defendants, that plaintiff should furnish said defendant the Eleventh street church of Christ, an abstract of title, which was to be entirely satisfactory to them and the said defendant, the Eleventh street church of Christ, soon after the making of said cqntract; that said opinion of title thus to be furnished by said plaintiff was to show and plaintiff represented that he had a good and sufficient and merchantable title to said property, free and clear from all cloud and incumbrance.”

blow Ike evidence offered under this averment was as follows: Counsel for defendants asked the witness, Cannan, this question:

‘‘Q. What was said between the parties in regard to the purchase of the property?”

.That was objected to, and then follows soma discussion upon the part of counsel and the court,and the court stated some reasons why he thought that was inadmissible, and finally ruled that it was inadmissible, to which exception was taken, and then counsel stated:

‘‘We offer to show that the memorandum marked Exhibit ‘A’ in plaintiff’s petition, was not a contract in full; that it only embraced a few of the terms-of the contract, and we offer to show that the contract made was a verbal contract, and was that the opinion of title mentioned in Exhibit ‘A’ attached to the petition was to show title in James B. Pennington, the plaintiff, and that it was to be free from all cloud and encumbrances and satisfactory to the defendants Cannan, Butler and Matthews,and also to the Eleventh street church of Christ.”

It will be observed that the answer admits the .written contract set up by the”defendant in error. The offer to prove is in harmony with this admission. There is no attempt to defeat or annul this contract on the ground of fraud or mistake, or any other ground which amounts to an attack upon the integrity of the contract. It is not asserted that the minds of the parties did not meet and agree upon the terms there set down' — 'that it is not their contract, as'far as it goes; but the effort is made to show that it does not cover the whole contract — all of the terms agreed upon. That certain material terms as to the title to be made apparent to plaintiff in error,and as to its right to determine the sufficiency thereof, were omitted from the writing. Why omitted, or bow omitted, is not said. It is nót claimed in the pleading that this omission was unintentional on the part of both or either of the parties to the agreement. It is not averred that defendant in error fraudulently prevented the insertion of these terms in the writing, or that they were omitted through the mistake of the parties or of anybody else.

So.far as appears, so far as the averments go, the parties did not intend or wish to háve these terms appear in the writing, but signed the written contract voluntarily with full knowledge that these alleged terms were not inserted therein, but that, on the contrary, it contained terms inconsistent therewith; for while the written agreement requires plaintiffs in error to accept a marketable title, the alleged oral agreement would not require them to accept a title that they should in good faith deem unsatisfactory although it might be marketable,

Now in this state of the pleadings we are satisfied that the court ruled correctly in refusing to admit the evidence offered. Wendo not say that to make this proffered evidence admissible plaintiffs in error were required to pray for a reformation of the written instrument so as to make it conform to the agreement by them alleged, Since they did not desire the specific enforcement of a reformed contract, but only desired to show that it should contain terms that excused their' refusal to accept the title and pay the purchase price, why they could not avail themselves of this matter defensively without a prayer for reformation, is not apparent, though there is some authority that seems to require such prayer. If such prayer were required, perhaps the general prayer for “such equitable relief as the court may find them entitled to have”, would be sufficient. Upon these questions, which have been debated here, we do not find it necessary to pass.

But we hold that to make the evidence proffered admissible, there must be such averments of fraud or mistake as would authorize a reformation of the instrument, and such averments are not to be found in the answer.

That parol negotiations and agreement of the parties to a written agreement prior to or contemporaneous with its execution are, as against the parties thereto, presumed to be merged therein, or purposely excluded therefrom, so that parol evidence of such negotiations or agreements cannot be admitted for the purpose of adding to, subtracting from or varying its terms, is so elementary as not to require the citation of any authority.

That the rules of evidence obtaining upon this subject in Ohio, and generally where the English system is in force, are the same in courts of equity as in courts of law, unless the equitable powers of the court are invoked upon allegations of fraud or mistake, we regard as well settled by t/he authorities. We will cite but one or two in Ohio, though the number migüt be multiplied, and the line is without break or variation. We call attention especially to the case of Monnett v. Monnett, 46 Ohio St., at page 30, and cases there cited. This was not, it is true, an action in equity, but an effort to introduce parol evidence to vary the terms of a Written contract was made, as will appear, and 'I shall read from the opinion of the court on pages 37 and 38:

“ It follows also, that the court erred in admitting the evidence, given by the defendants to contradict the terms of the instrument and engraft upon it others it did not corn tain, unless such evidence was competent, under the pleadings, with the view to its reformation.
“ We know that the rules which forbid the introduction of parol evidence to control written contracts, do not exclude proof of the consideration, or. of promises or agreements wholly collateral to the writing, like agreements between sureties or joint promisors, nor apply where express reference is made in the written instrument, tp ajrarol contract, or where the written instrument does not purport to be a complete expression of the contract; or evidently appears to express only some part of it, and that which is sought to be proven, does not contradict its terms, but is consistent with them. But the evidence admitted in this case does not fall within either of these classes. Its purpose and tendency were, to prove that the instrument did not contain the true agreement between the parties, and to establish a contract materially different from that expressed by it. Such evidence cannot be admitted, except when the reformation of the instrument is sought in equity.” Citing a number of authorities, and among them Denton v. Whitney, 31 Ohio St., 89, which was a case where the equity powers of the court were invoked — a case on account. And the court proceeds:
“And the party asking its reformation, must by proper allegations in his pleading, show his right to such relief.”

Citing White v. Denman, 1 Ohio St., 110, which for lack of time I will not stop now to read, though I had purposed doing so.

This case does not come within any of the other exceptions to the rule, viz, parol agreement on matters as to which the writing is silent. Separate parol agreement constituting condition precedent; subsequent parol agreement to rescind or modify; custom and usage; to show that a transfer absolute upon its face was given in trust, etc.

The case of Quin v. Ruth, 37 Cowen, 16, cited by counsel for plaintiffs in error, as reported, seems to hold that such evidence of other terms resting in parol should be received to vary the terms of a written instrument where specific performance is sought and where such matter is set up defensively, though there is no allegation of fraud or mistake that would authorize a reformation or setting aside of the written agreement. This we think is contrary to the great weight of authority — to the almost uniform holdings of tjxe highest courts — ‘distinctly to the holdings of the.supreme court of Ohio, and therefore we decline to be guided by it, We suspect that some fault in the report of the case is responsible for this apparent anomaly.

M. D. Merrick, Stillwell & Duer, for Plaintiffs in Error.

Hurd, Brumback & Thatcher, for Defendant in Error.

It is contended in argument that there were apparent discrepancies in the title sufficient to justify plaintiffs in error in saying that the title was not satisfactory to them; but the title shown approaches perfection closely enough to make it fairly marketable. But few titles will be found, we think, that are so absolutely without flaws that a captious or excessively timid person might not find therein some ground for uneasiness or dissatisfaction. That plaintiffs in error did not withhold payment on the ground that the title was defective, after certain judgments had been released, we think quite evident. Nevertheless, 'if it had appeared on the trial that the title was in fact defective, defendant in error could not have enforced specific performance, though plaintiffs in error may have theretofore regarded the title as unobjectionable.

We have considered the alleged imperfections in the title, and find that there is no solid foundation for the objections thereto.

We find no error in the record prejudicial to the plaintiffs in error.

-The judgment will be affirmed, with costs; reasonable ground certified.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Giffen, JJ.
    CHARLES W. BAKER, Assignee of A. E. BURKHARDT v. TILDEN R. FRENCH, Treasurer, et al.

      Ten per cent penalty for non-payment of assessment when due— Penalty lien on property 'same as assessment—
    (1.) The effect of section 2285,B.S., is to make the ten per cent, of the amount of unpaid street assessment, which is added to cover interest and the cost of collection, a lien upon the assessed property in the same manner as the assessment proper is made a lien; and such penalty is not rendered void by the fact that subsequent to the attaching of the lien to the property at the time the assessment is levied the owner makes an assignment for the benefit of his creditors.

      Duty of assignee for benefit of creditors to pay assessments and penalty for nonpayment thereof when due—

    (2.) Where state and county taxes are levied on real estate subsequent to its assignment by the owner for the benefit of creditors, the county treasurer is not debarred from proceeding to sell said real estate for such taxes if they have become delinquent, and in that event the penalty which has been added to a street assessment would be collectible in like manner.
    Appeal from the Court of Common Pleas of Hamilton county.
    Smith, P. J.; Swing and Giffen, JJ., concur.
   •This case was heard on a general demurrer filed to the petition of the plaintiff.

' The petition averred in substance, that on June 21, 1896, Burkhardt assigned to Baker for the benefit of his creditors, all of his personal and real estate, including the real estate described in the petition, and that such assignee duly qualified, That quite a number of lots so assigned (naming them) had been assessed for the construction of a street or streets in the city while the same was owned by Buikhardt, which assessments are payable in ten annual installments. That since said assignment to plaintiff, installments of said assessments amounting in all to $1,059.46, have become due and payable, and not having been paid, the city of Cincinnati, by its auditor, certified the same to the auditor of Hamilton county, who has placed the said assessments on the tax duplicate of Hamilton county, together with a penalty of ten per cent., viz., $105.95, and that the treasurer threatens to collect said assessments and penalties from plaintiff; that he refuses to receive the amount of the assessments unless said penalty is also paid; that he tendered the amount of said installments due, less the penalty, and that the treasurer refused to receive it.

He avers that said penalties are illegal and void as assessed against the plaintiff, who is the assignee as aforesaid, and an officer of the court of insolvency. Wherefore he prays that the treasurer be enjoined from collecting said penalty,and be required to receive from plaintiff the amount of the assessments so certified without penalty.

Is the demurrer to this petition well taken?

Section 2295, Revised Statutes, provides that:

“The council may order the clerk, or other proper officer of the corporation, to certify any unpaid assessment or tax to the auditor of the county in which the corporation is situated, and the amount of such assessment or tax so certified shall be placed upon the tax list by the county auditor, and shall, with ten per cent, penalty to cover interest and cost of collection, be collected with and”in the same manner as state and county taxes, and credited to the corporation.”

By section 2285,special assessments become “a lien from the date of the assessment upon the respective lots or parcels assessed,” and as a consequence these assessments became liens on the property of Mr. Burkhardt before they were assigned to the plaintiff. And we are of the opinion that the effect of section 2295 is to mak'e the 10 per cent, of the amount thereof, which is given to cover interest and the cost of collection, also a lien upon the assessed property. At all events, the statute expressly authorizes its collection by the treasurer.

There is certainly no provision of our statutes that hints at the idea that these provisions are not to apply to the collection of assessments for such improvements in a case where the owner, after the assessment, and before it becomes due, assigns his property for the benefit of his creditors, and we are unable to see any good reason why they should not apply in such case. The idea that a person can, by the mere transfer of his real property®to an assignee for the benefit of his creditors, radically interfere with the assessment and collection of taxes upon the real estate thus assigned, does not seem to us reasonable or right. If the assignee is not bound to pay the general taxes assessed upon the lands of his assignor by the time the statute requires them to be paid, is he to be absolved from the liability to pay the penalty which the law imposes in such case? This we understand to be the claim of the assignee, and further that he has the right to prevent any proceedings being taken by the treasurer to collect such tax or penalty, by sale, or otherwise, on the ground that all of the assigned property is in the custody of the law, and can not be interfered with by any one.

This claim is predicated on language used by Judge Spear in the case of McNeill, assignee, v. Hagerty, auditor, 51 Ohio St., 255. The only question before the court in that case was whether personal property in the form of moneys, bills receivable, bonds, certificates of stock or otherwise held by an assignee of an insolvent debtor, whose estate is^being settled in the probate court, is subjected to taxation and must be returned by him for taxation. It was held that it was not,on the ground that such personal property was in the custody of the court, and that to require it to be done would result in double taxation on the same . property,[and that the statute did not expressly require the assignee to make such return. Judge Spear, in deciding the case, says, on page 263:

“Necessarily that court (the probate court) by operation of law upon the filing of the instrument of assignment acquires control of all the property and estate embraced therein, subject, of course, to all liens and just claims existing upon the property, whether by the state or by creditors.”

And in another place, on page 268, he says:

“And if, as is claimed in argument, in case payment of taxes so levied is not voluntarily made by the assignee,distraint might be resorted to by the tax collector, and the property seized and taken forcibly from the possession of the assignee, thus taking it from the control of the court, so much more apparent is it that the construction claimed by the defendant in error is inadmissible, because it would result in unreasonable interference with the rightful exercise of power by the probate court. It can not have been the purpose of the legislature by one statute to lodge exclusive jurisdiction and dominion over property in a court, and by another statute authorize a taxing officer to cast contempt upon the court by ousting its jurisdiction and overriding its powers.”

It would seem from the last extract from the decision that the court was of the opinion that where personal property of an assignor has come into the possession of an assignee, that such property can not be taken from the assignee by way of distraint for the collection of taxes on that or other property, for the reason that it is in the custody of the court to be distributed by its officer in due course of administration. This we suppose to be good law, but whether it applies to a case of this kind may be questioned, Here is a case where, by operation of law, the original assessment for these street improvements became a lien on the real estate as of the date of the assessment, and the city was authorized to certify it to the county auditor and have it placed on the county duplicate, with the penalty for nonpayment, to be collected as state and county taxes are col-.looted. The question is whether, when a'person assigns real ■ estate to an assignee for the benefit of creditors, and which .is subject to state and county taxes at the time, or they are .afterwards levied thereon, the county treasurer is debarred the right to proceed to sell such real estate for the taxes which have become delinquent, if they are not paid? It seems to us that such is hardly the case — that it could not have been the intention of the legislature to make such a .provision in favor of assignees of insolvent debtors which ..does not apply, as we understand,to any other persons. But •if it be conceded that such is the case, and that so long as .the taxes are unpaid and the assigned estate is unsettled, •■that the county treasurer is powerless to collect such taxes ■by sale of the property at delinquent tax sale, this we think •is not decisive of the question before us. There is an allegation in the petition that the treasurer threatens to collect ■■■the tax and penalty on this property and refuses to receive vthe amount of the assessments wtihout the penalties being ¡paid also. That he has tendered to him the amount of “taxes, exclusive of the penalties, which he has refused to receive. He therefore prays that the defendant be enjoined from adding such penalty to the assessments, and that the treasurer be enjoined from collecting the same, and required to receive the taxes and assessments without penalty. There is no allegation that the treasurer is threatening to seize -any personal property, thereby to collect the taxes, or even that he is about to sell the real estate, The gravamen of the petition seems to be that a penalty has been assessed on the land, and the relief sought is to have it declared illegal and void. We are of the opinion that the imposition of the penalty is not illegal, but that the same, with the assessment, becomes a valid lien on the property, and that the assignee by the tender and payment of the principal is not entitled to a decree in his favor as prayed for^but^that •,the penalty also must be paid. The demurrer to]|tbe petition will therefore be sustained, and unless an amendment is desired, the petition will be dismissed at plaintiff’s cost.

Charles W. Baker, for the appellant.

George H. Kattenhorn, for the appellee.


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1899.)
    Before King, Haynes and Parker, JJ.
    CHARLES KOLLING v. LUCIE BENNETT.

      Variance between averments of petition and proof — Failure to object—
    (1) . Wh.ere no objection is made to the petition by demurrer or otherwise, and the evidence goes to the jury without objection that it does not tend to support the averments of the petition, or that it tends to establish a case somewhat at variance from that stated in the petition, it is not error for the judge to submit to the jury the case clearly made out by the evidence, though not distinctly set forth in the petition, if the case stated in the petition and that established fay the proofs do not differ materially.

      Same — Verdict to stand—
    (2) . If the evidence made a case under the petition without material variance, the verdict and judgment should stand, though not in harmony with the charge of the court.

      Adair Law — Notice before debauch—
    (3) . Under the “Adair Law”, sec. 4357, R. S., one may serve the notice in anticipation of the habit of drunkenness being formed, or a debauch being indulged in, and as a means of prevention thereof and of the consequent damages; and the notice, given personally or by filing, is a full and complete safe guard of the seller. It is not necessary that the person designated should be intoxicated or in the habit of becoming intoxicated the time the notice is served.
    (4) . “Whether, since the amendment of February 17, 1875, (72 O. L., 35) carried into R. S., secs. 4357, 4358, it should be held as formerly, that under the statutes of Ohio, the seller is not liable unless he shall have committed a crime involving moral turpitude against the commission of which crime he has been forewarned by the person liable to be injured thereby, Quere?”

      Proof of sales — Variance from petition—
    (5) . A judgment against the liquor dealer in such a case which • rests solely upon evidence of sales to the husband while in a state of intoxication, should not be reversed, notwithstanding the lack of distinct averments in the petition of such sales, and notwithstanding the limitation upon the right of recovery fixed by the charge of the court.

      Preponderance of evidence sufficient—
    (6) . Although in such a case an unlawful selling must be established, yet a preponderance of the evidence is sufficient in a civil action under the statute founded on such unlawful sale.

      One contributing to drunkenness liable for whole damages—

    (7). It is well settled in Ohio that one who by unlawful sales contributes in ever so slight a degree to produce or .increase the drunkenness from which damages flow, may be required to respond in the whole amount of such damages.
    Error to the Court of Common Pleas of Lucas county.
   Parker, J.

The petition in error in this case was filed to reverse the judgment of the court of common pleas of this county, in a case brought by Lucie Bennett in said court under the statute commonly called the “Adair law” — and especially section 4357, Revised Statutes — against Charles Kolling and Thomas Hammond, on account of intoxicating liquors having been sold, as she charges, by Charles Kolling to the plaintiff’s husband, It is charged that Thomas Hammon was the owner of the premises where intoxicating liquors were sold. Such proceedings were' had as that Thomas Hammon was dropped out of the case before the .plaintiff took judgment. The jury returned a verdict in favor of the plaintiff against Charles Kolling, for $150.00. A motion for a new trial was made, based upon various grounds, and was overruled by the court, and jugment was entered upon the verdict.

The plaintiff in error complains: First: That the petition is insufficient, because it does not aver facts showing that the wife, who had caused the notice to be served as provided by section 4358, Revised Statutes, was liable to injury through the intoxication to her husband, at the time the notice was served. And in support of the contention that this is required, counsel for plaintiff in error cites us to the case of Pegram v. Stort, 31 W. Va. Rep., 22. A part of the syllabus in that case is as follows:

“Under this act it was also essential to sustain an action, that, when such person was so served with notice, the husband named in the notice was in the habit of drinking to intoxication. ”

The'act referred to contains the following provisions:

“* * * Upon due proof that such liquors were sold or furnished as aforesaid, and that the person mentioned in said notice was, at the time of the service thereof, in the habit of drinking to intoxication, an action may be maintained, etc.”

We find no such provision in Revised Statutes, section 4838 Under our statute one may serve the notice in anticipation of the habit of drunkenness being formed, or a debauch being indulged in, and as a means of prevention thereof and of the consequent damages, and the notice, given personally or by filing, is a full and complete safeguard of the seller. He has no right to complain or to ignore it because the person against whom he is warned is not at the time intoxicated or in the habit of getting intoxicated. Public policy, having in view the wrong and inconvenience to the person named in the notice, might well dictate a provision for his protection to the effect that notice should not be given not to sell to him unless he were a person addicted to drunkenness; but the law seems to have left him to the ordinary remedies of persons who may have been defamed.

The seller of intoxicating liquor however, has no right infringed by the giving of such notice, even if it be premature, or causeless; certainly he has no vested righl to sell to a particular person that is thereby impaired. So long as the law receives the construction put upon it in the cases of Baker v. Beckwith, 29 Ohio St., 314; Sibila v. Bahney, 34 Ohio St., 399, and Russell v. Tippin, 12 C. C., 52. he is fully protected by the notice and by the provision that the sales must be to a person at the time in the habit of getting •intoxicated, or at the time intoxicated, of which condition or habit the seller must have knowledge, or that the sale must be otherwise unlawful. In other words, he is not made liable to respond in damages under the statutes of Ohio, unless in making the sales complained of he shall have committed a crime which involves moral .turpitude, against the commission of which crime and wrong he has been for-warned by the person liable to be damaged thereby. The statute treats the seller of intoxicating liquors with especial and peculiar tenderness in thus providing that he may not be required to respond in damages for results to others flowing from crimes by him wilfully committed, unless the person suffering because of his wrong shall have first said to him, in effect “If you commit this offense against the criminal laws of the state, and I am injured in person, property or means of support in consequence thereof, I will endeavor to require you to compensate me for the injury.” To add to this statute the further qualification that this warning shall have no efficacy unles the person as to whom the warning is given shall be intoxicated, or in the habit of becoming intoxicated at the time the warning is given, is not warranted by any fair rule of construction, and is not required by any reasonable consideration of the rights and interests of the liquor seller, the person likely to be injured by his unlawful sales, or the public. Whether, since the amendment of February 17,1875,(72 O. L., 35) carried into Revised Statutes,sections 4357 & 4358, somewhat modifying the provision considered by the supreme court in Baker v. Beckwith, and Sibila v. Bahney, supra, and adding the previsions as to notice now found in section 4358, the statute should still be construed to require that the sake must be in violation of the penal laws on the subject to render the seller liable for damages in a civil action under this statute, as held by this court in Russell v. Tippin, supra, I am inclined to doubt; but that question is not necessarily involved here, and has not been .considered by the whole court However that may be, we all agree that the notice is effectual though served before the person proscribed shall have become intoxicated or contracted a habit of intoxication.

Second: It is also contended that the allegations and proof do not bring the sales complained of within the provisions of Revised Statutes, section 6943, i. e., that while the petition avers that sales were made to a person at the time in the habit of getting intoxicated, and that the defendant then Knew of this habit, the evidence does not sustain the allegations; and that while the evidence tends to prove that the person to whom the sales were made was at the time intoxicated, and that the defendant then knew of his condition of intoxication, the petition does not contain: averments authorizing evidence of such a state of facts, or a recovery therefor.

As no objection was made to the petition in the court below, by demurrer or otherwise, and the evidence went to the jury without objection that it did not tend to support the averments of the petition, or that it tended to establish a case somewhat at variance from that stated in the petition, it is not apparent that the trial judge would have erred had he submitted to the jury the case clearly made out by the evidence, though not distinctly set forth in the petition, i. e., a case based upon sales made to plaintiff’s husband while he was intoxicated, the seller (defendant) at the time knowing that he was intoxicated. It is not apparent that the case proved was so far variant from that alleged that plaintiff could have been misled to his prejudice in making his defense, since the habit of intoxication which it was averred the husband had, and of which it was averred plaintiff in error had knowledge when he made the sales complained of, necessarily involved either a protracted debauch, or more or less frequent sprees, and, not unnaturally, sales while in a condition of intoxication.

Neither did the plaintiff in error claim or attempt to make it appear when the evidence was adduced, that he would or might be prejudiced thereby. (See Revised Statutes, section 6294).

On the other hand, perhaps the greater part if not all of the evidence, was admissible under the charge of selling to one in the habit of becoming intoxicated, so that no argument should be drawn from the failure of plaintiff in error to object to its introduction. At all events, no other case was submitted to the jury than that distinctly alleged in the petition, i. e., based upon the charge of selling to a person in the habit of becoming intoxicated, which was clearly favorable to the plaintiff in error.

From what has been said it will be seen that if the judgment rested solely upon evidence of sales to the husband while in a state of intoxication, we are not clear that it should be reversed, notwithstanding the lack of distinct averments in the petition of such sales,and notwithstanding the limitation upon the right of recovery fixed by the charge of the court.

If the evidence made a case provable under the petition without material variance, the verdict and judgment should stand, though not in harmony with the charge of the court.

But, without farther remark upon this phase of the case, we proceed to examine whether the verdict and judgment are sustained by the evidence, treating the right of the defendant in error to recover as being limited by the petition to sales made to a person in the habit of becoming intoxicated.

No evidence was adduced other than that on behalf of defendant in error. From this evidence it appears clearly that for some time before August 2, 1897, the husband (who was a salesman and purchasing agent at the Lion Store), was in the habit of becoming intoxicated quite frequently and to a high (or low) degree, and that this was continued after August 2,1897, until the latter part of August or early in September of that year, when he indulged in a protracted spree and was discharged from said employment in consequence of his dissipation. That he was in the habit of becoming intoxicated, and that sales made by plaintiff in error on or about August 2nd, contributed to his intoxication, is not seriously controverted. But it is urged that the evidence does not show that plaintiff in error then knew that Bennett was in the habit of becoming intoxicated. The testimony, including that of plaintiff in error, (who was called and examined by defendant in error), shows that plaintiff in error had been well enough acquainted with Bennett for at least a year before August 2, 1897, so that he knew his name and knew him by sight,and plaintiff in error admits that on at least one occasion he saw Bennett in a state of intoxication. It also appears from the testimony of Mrs. Bennett that.shehad called at the saloon of plaintiff in error for her husband on two occasions prior to August 2, 1897, and that on one of those occasions she had distinctly requested plaintiff in error to not sell her husband any more liquor, because of the trouble thereby caused at home, and that on that occasion plaintiff in error said to her that he had known Bennett a long time. It is true that Bennett was a person who did not stagger when drunk, and his condition does not appear to have been made manifest to the casual observer by any striking or unusual behaviour on his part, yet Mrs. Bennett says that it was distinctly apparent in the paleness of his countenance and the glassiness of his eyes. The jury might fairly assume that one who, like plaintiff in error, had known Bennett a long time, and who must have been more or less expert in detecting signs of intoxication, must have discovered a habit and condition that seems to have been apparent to those who came in contact with Bennett in the store where he worked, and elsewhere,

It is fairly established that on the evening of August 2, 1897, Bennett spent the entire evening until about 11:30 at the saloon of plaintiff in error — that he drank enough before he went there to make an ordinary man drunk — that he kept up his drinking there throughout the evening, drinking beer and other intoxicants perhaps ten or a dozen times, the plaintiff in error selling and furnishing the same personally, and that he left the place in a woeful state of intoxication.

In view of all these facts, we think the jury was warranted in finding that the plaintiff in error knew of Bennett’s habit of intoxication.

Though an unlawful selling must be established, yet a preponderance of the evidence is sufficient in a civil action-under the statute founded on such unlawful sale.

On all other points the verdict is fairly supported by the evidence.

Third: It is also contended that the damages awarded —$150—-are excessive; that the husband appeared to have-expended with plaintiff in error but a trifling amount of that which should have been devoted to the support of hie wife, and that such amount should measure her pecuniary loss, and her recovery. As has been said, Rennett appears to have lost his position because of his protracted debauch, of which the spree of August 2, 1897, was a part. This position brought him $20 per week. For some time after this he was not able to obtain employment, and his wife was-obliged to go out to service, and the little she could earn, together with what they raised by pawning her wedding ring and other jewelry and trinkets and articles of clothing,, served to support them until he obtained employment at St, Louis, Missouri; but there he could obtain but $12.50 per week.

It is well settled in Ohio that one who by unlawful sales contributes in ever so slight a degree to produce or increase the drunkenness from which damages flow, may be required to respond in the whole amount of such damages. If we leave out of consideration here every element of damage except the bare pecuniary loss directly attributable to the drunkenness to which the sales made by plaintiff in er-. ror contributed, it cannot be said that the damages are excessive.

If other losses and suffering of the wife which might have been taken into consideration by the jury and which the jury would have been justified in allowing,are to be added, by the most moderate estimate, it becomes apparent that the verdict is remarkably light. We cannot disturb it on the ground that it is excessive; and, finding no error in the record prejudicial to the plaintiff in error, the judgment is affirmed.

Pilliod & Tyler, for Plaintiff in Error.

R. S. Holbrook, for Defendant in Error.

Reasonable cause will be certified. Judgment against plaintiff in error for costs of proceedings in error.


text:
    (First Circuit — Hamilton Co., O., Circuit Court —
    Jan. Term, 1899
    Before Swing, Smith and Griffen, JJ.
    HENRY FRICKE v. IDA FRICKE.

      Decree for alimony — Not vacated by agreement of parties—
    Agreement between the parties does not operate to vacate a decree for alimony and custody of children, nor will the pendency of petition to modify a decree for alimony protect a party from proceedings in contempt for failure to comply with the former decree of the court still in force.
    Error to the Court of Common Pleas of Hamilton county.
   Á judgment for $12 a month alimony was rendered against the plaintiff in error, a minor child having been given into the custody of the wife. Fricke failed to pay the alimony, and in a proceeding in contempt, brought in the usual form, he was adjudged guilty and sentenced to ten ■days in jail unless he paid the $33 alimony then due. On error to this judgment he contended that having made an agreement with his wife, whereby he was to assume the ■custody of the child and to be relieved from paying alimony, and further having filed a petition for a modification of the order for alimony, he was absolved from answering to the charge of contempt. Upon obtaining custody of the child, he placed it in an orphan asylum. The wife went to the asylum, reclaimed the child, and resumed custody of it.

Held: That the jurisdiction of the common pleas court in the matter of the custody of children is continuing, and the ■court is in no way bound by an agreement between the parties, and its decree is not affected thereby. Nor does the pendency of a petition for modification of an allowance of alimony operate to vacate the original decree. There was therefore nothing to prevent the issuing of an attachment for contempt.

C. S. Sparks, for Fricke.

Maurice L. Galvin, contra,