text:
    TRIAL
    [Cuyahoga (8th) Circuit Court,
    May 10, 1912.]
    Niman, Dustin and Pollock, JJ.
    Judge Dustin of Second Circuit and Judge Pollock of Seventh Circuit ■ Sitting in Place of Judges Marvin and Winch.
    Sarafino Capretta v. J. H. Haskins Roofing Co. et al.
    Verdict for "Defendant” Liberally Construed to Include “Defendants.”
    In construing the verdict of a jury the utmost favor should be extended to it by giving it a liberal construction, and when, in a case in which there were two defendants, the jury returns a verdict in favor of the defendant, the. court properly may enter judgment in favor of both defendants.
    Error.

      B. D. Nicola, for plaintiff in error.

      Treadway (& Marlatt, for defendants in error.
   POLLOCK, J.

The plaintiff in this action is seeking to have a judgment of the court of common pleas of the county against him and in favor of the defendants, reversed for an error that he claims was committed by the court below against him in the trial, of that ease. The only error complained of is that the verdict rendered by the jury was so indefinite and uncertain that no judgment could be properly entered upon it, and that the court erred in overruling his motion for a new trial on this ground and in entering judgment on the verdict.

The only record we have of the case below are the pleadings and the verdict of the jury.

The plaintiff in error brought suit against the defendants in error in the court below to recover damages for personal injury which he claims to have sustained by reason of the negligent acts of the defendants. He says in his petition that at the time he received his injuries he was engaged in digging a trench from the sidewalk to a house on one of the streets of this city; that at the same time the defendants were engaged in roofing this house; that in hoisting a bucket filled with pitch from the ground to the roof of the building, the bucket and its contents fell and struck plaintiff, inflicting the injuries of which he complains. He says that the fall of said bucket was caused by the negligent and careless acts of the defendants.

The defendants answered separately to this petition. The defendant, the J. H. Haskins Roofing Co., said that it was a corporation, and then denied each and every allegation of the petition, and further said that at the time of the happening of the occurrence complained of this corporation was not in existence, and that it had no connection with the occurrence alleged in the petition.

The defendant, J. H. Haskins, answered denying the negligent acts charged in the petition and the injury complained of by the plaintiff, and alleged contributory negligence. The plaintiff replied denying the contributory negligence. The case went to trial to a jury, and the jury returned a verdict as follows :

11 Sarafino Capretta, plaintiff, v. J. H. Haskins Roofing Co. et al, defendants.
“We the jury in this case, being duly imparmeled aud sworn, do find for the defendant. ’ ’

The claim is made that here is a finding in favor of one of the defendants, and it was impossible for the court to determine, from the issues and this verdict, which of the defendants the jury intended to find in favor of, by its verdict.

The verdict of the jury must pass upon all the issues in the case and be free from ambiguity. The issues in this case, raised by both defendants, were submitted to the jury, and the question is whether or not this verdict responds to the issues and is so certain that the court can enter judgment on the verdict in favor of both defendants.

The verdict must be certain and positive, and free from ambiguity ; it must convey on its face a definite and precise meaning, and must show just what the jury intended. But in construing a verdict 3 Graham and Waterman on New Trials, 1377, say:

“The utmost favor has always been extended to verdicts, and they are not construed strictly, as pleadings are. Though the verdict may not conclude formally and punctually in the words of the issue, yet if the point in issue can be concluded out of the finding, the court shall work the verdict into form and make it serve.”

And our Supreme Court, in the case of Fries v. Mack, 33 Ohio St. 52, in the opinion on page 59, lays down practically the same rule to guide the court in the construction of the verdict of the jury. Quoting from a Kentucky ease, they say:

“In considering the verdict itself, with a view to its sufficiency, the first object is to ascertain what the' jury intended to find, and this is to be done by construing the verdict liberally, with the sole view of ascertaining the meaning of the jury, and not under the technical rules of construction which are applicable to pleadings. And it has been said that every reasonable construction is to be adopted in support of a verdict. ’ ’

Now, applying this rule to this verdict, what did this jury mean, looking at and construing the verdict itself? Did they intend only to pass upon the issues in favor of one of these defendants, and that the issues as to the other defendant would go without a determination? We hardly think that that can be the construction drawn from this verdict. Construing it liberally, as required by this rule laid down by our Supreme Court we think that the true construction is that they found the issues in favor of each of these defendants and against the plaintiff; and that the verdict means that the issues raised by each of the answers of the defendants were thus found in favor of' the defendants, and that the court committed no error in overruling the motion for a new trial and rendering judgment in favor of each of the defendants and against the plaintiff.

Our attention has been called by the plaintiff in error to a number of cases in the courts of other states, where two defendants were sued jointly and issues raised in the action, and a verdict returned in favor of the plaintiff and against one of the defendants; that it was so indefinite and uncertain which one of the defendants the jury intended to render the verdict against that the court could not determine, and therefore the verdict should be set aside and a new trial granted.

There is much difference in construing a verdict of that kind, where there is affirmative relief found against one defendant, and no designation of that defendant, and where the verdict is in favor of the defendant. In the first case, there is an affirmative action against one, the court can not determine which it is, and for that reason it is set aside; but in the case at bar, where the verdict is in favor of the defendant, there is no judgment to be rendered against that defendant, and for that reason the presumption is, granting a liberal construction, that it was intended to be in favor of both defendants.

The judgment of the court below is affirmed.

Niman and Dustin, JJ., concur.


source: Caselaw Access Project

author: NIMAN, J.

license: Public Domain

text:
    CARRIERS — STREET RAILWAYS
    [Cuyahoga (8th) Circuit Court,
    July 1, 1912.]
    Marvin, Niman and Metcalfe, JJ.
    Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Winch.
    Northern Ohio Trac. & L. Co. v. Joseph Wieland.
    1. Passenger Entitled to Reasonable Time to Produce Ticket or Pay Fare. '
    A passenger on a street car or railway train is entitled to a reasonable time in which to pay his fare or produce his ticket, and, if he is acting in good faith, the conductor has no right to eject him without affording him such reasonable time to pay his fare or find his ticket, if it is mislaid.
    2. Facts Applied.
    When a passenger has left his ticket in the custody of another passenger in a remote part of a crowded street car, and the conductor forcibly ejects him within a minute or two after having first demanded his fare, he has not been given a reasonable opportunity to secure and present his ticket and the carrier is liable in damages.
    Error.

      Kline, Tolies & Morley, for plaintiff in error.

      A. M. Klein, for defendant in error.
   NIMAN, J.

Joseph Wieland, the defendant in error, sued the Northern Ohio Trac. & Light Co., the plaintiff in error, in the municipal court of the city of Cleveland, and recovered a judgment in that court for $200. On error proceedings prosecuted in the court of common pleas, the judgment of the municipal court was affirmed, and this proceeding is brought to secure a reversal of the judgment of the court of common pleas affirming the judgment of the municipal court.

The plaintiff in the original action by his amended statement of claim charged, in substance; that on or about October 29, 1911, he was a passenger on a ear of the defendant, and that he was wrongfully ejected from the car by the conductor and motorman, and by reason thereof was seriously injured. The recovery sought was for damages for his alleged injuries.

It appears from the evidence that on October 29, 1911, the plaintiff in the original action, with his two sons-in-law, boarded a ear of the defendant for the purpose of going to Bedford. Three tickets were bought before the party got on the car. These tickets were retained by one of the plaintiff’s sons-in-law. When the three men got on the car it was crowded, and the plaintiff went forward into the smoking compartment while the other two men remained in the back part of the car.

When the conductor collected the fares of the passengers he began at the rear end of the car and worked forward, and when he came to the two sons-in-law of the plaintiff he was given two tickets. According to the testimony of the sons-in-law, the third ticket which had been purchased for the plaintiff had fallen into a basket, and while the men were looking for this ticket the conductor passed on forward. When the conductor came to the plaintiff he was told, according to the plaintiff’s testimony, that the plaintiff did not have the ticket but that his son-in-law had it. The plaintiff was told by the conductor to get the ticket, but he did not do so, and as soon as the conductor had finished his work of taking up tickets from the rest of the passengers, he returned to the plaintiff and made demand upon him for his ticket or his fare, and not receiving it, he forcibly ejected the plaintiff through the front door and in so doing inflicted some injuries upon him.

The conductor testified that when he came to the plaintiff and asked him for his fare, the plaintiff said the two men in the other part of the car had his ticket; that he told the plaintiff that he would have to get the ticket or he, the conductor, would have to put him off; that the plaintiff did not make a move to go back to get the ticket, and as soon as the car came to a stop at a telephone house on the line, of the road, he put the plaintiff off the car.

The time that intervened from the first request made by the conductor for the plaintiff’s ticket until the second demand was, according to the conductor’s testimony, about a minute or two.

It is contended on behalf of the plaintiff in error that it was the duty of the plaintiff to either produce his ticket or pay cash fare upon the demand of the conductor, and that the conductor had the legal right to eject him from the car, using such force as was necessary to accomplish that purpose.

It is undoubtedly the law that a railway company may rightfully eject from its car a passenger who, upon demand of the conductor, refused to produce his ticket or pay his fare, but the passenger is entitled to a reasonable time within which to comply with such demand. This is particularly true if the passenger has mislaid his ticket or lost his money, or from any other cause is in such a, position that immediate compliance with the conductor’s demand is not possible.

In Nellis, Street Railways, Sec. 263, the law is said to be as follows:

“A passenger is entitled to a reasonable time to produce his ticket or pay his fare before being ejected from the train or ear, and if acting in good faith, the conductor has no right to eject him from the train or car without affording him a reasonable opportunity to make payment or to find and present his ticket, if lost or mislaid, or to provide other means of payment, if his pocketbook is lost or mislaid. ’ ’ See also Clark v. Wilmington & W. Ry., 91 N. C., 506 [49 Am. Rep. 647] ; Chicago & Alton Ry. v. Willard, 31 Ill. App. 435; Maples v. New York & N. R. Ry., 38 Conn., 557 [9 Am. Rep. 434].

The evidence before us in the bill of exceptions is such that the trial court might well have found that the conductor did not afford the plaintiff below reasonable opportunity to obtain his ticket. The car was. crowded; the plaintiff was in the forward compartment while his companions who had the ticket were farther back in the ear. The plaintiff did.not understand English well, and there is nothing in the evidence to' indicate that he was not acting in good faith. It was the duty of the conductor to afford the plaintiff a reasonable opportunity to get his ticket, and a finding that the conductor did not observe his duty in this respect would be amply sustained by the evidence.

There is also enough in the evidence to sustain a recovery on the ground that the conductor used excessive force, or at least did not employ proper means in ejecting the plaintiff from the ear. The front door of the ear out of which he was forcibly pushed, or thrown, was a considerable distance from the ground. There were no steps there and the plaintiff landed on his face and hands. We have no means of knowing on which theory the trial court based his judgment, but the evidence being sufficient to sustain the recovery on either theory, or on both combined, we find no error in the action of the municipal court in rendering judgment for the plaintiff there. The judgment of the common pleas court, affirming the judgment of the municipal court, is therefore affirmed.

Metcalfe, J., concurs.

Marvin, J., not sitting.


author: WINCH, J.

text:
    AS TO VALIDITY OF AN ANCIENT DEDICATION
    [Medina (8th) Circuit Court,
    October 14, 1912.]
    Winch, Marvin and Niraan, JJ.
    Edith P. Minton et al v. Seville (Vil.)
    No Dedication of Road Under Act of March 3, 1831, Without Acknowledgment by Owners.
    No dedication of a parcel of land for street purposes can he established under the act . of March 3, 1831, providing for the recording of town plats, when the records do not show any acknowledgment by the owners of the plat as made by the county surveyor.
    Appeal.

      Frank Heath and Lee Elliott, for plaintiffs.

      John C. Welty, for defendant.
   WINCH, J.

The aid of the court is invoked in this case to restrain the village of Seville from moving back the sidewalks in front of plaintiff’s premises on Center street in the village and thus widening the traveled portion of the street.

To adjudicate the issues here involved it is necessary to determine the title to a strip of land about ten feet wide along the east side of said street between the present sidewalk and the east line of Center street, as shown on a plat recorded in the office of the recorder of Medina county and purporting to be a plat of town lots in the town of Seville in the township of Guilford, county of Medina, and state of Ohio, made by the surveyor of said county in August, 1836, and acknowledged by certain individuals whose names are given on the plat.

The evidence satisfies us that plaintiffs have been in adverse possession of the strip of land in question long enough to obtain title thereto by prescription, under the rules of law, unless during all their possession this land has been part of a legally dedicated street.

The village claims a dedication for street purposes and offers the plat referred to as evidence thereof. We must therefore examine its evidences of title. If its title fails, the plaintiffs are entitled to the relief they seek.

The act of March 3, 1831, to provide for the recording of town plats (3 Chase’s Statutes, 1846) was in force when the "town” of Seville was platted.

In the case of Mitchell v. Franklin Co. (Treas.), 25 Ohio St. 143, the Supreme Court held, on page 154, that the first five sections of said act prescribe the mode of laying out towns on lands not embraced within the limits of cities or incorporated villages, and the sixth section of the act prescribes the mode of laying out lands within the corporate limits of cities and villages into lots, streets, etc., and of platting the same.

There is no evidence that Seville was incorporated as a village before 1853. The plat made in 1836 must, therefore, be governed by the first five sections of the act of 1831.

Section 1 of that act provides:

‘ ‘ That whenever any person wishes to lay out a town within this state, they shall cause the same to be surveyed, and a plat or map thereof made by the county surveyor, if any there be, of the county in which said town is situated; which plat or map shall particularly describe and set forth all the streets, alleys, commons or public grounds, and all in and out-lots, or fractional lots, within, adjoining or adjacent to said town, describing the same by courses, boundaries and extent.”

The word "town” as used here, means a collection óf habitations, its popular meaning, and not a municipal corporation, for we have never had a corporation under the name of “town” in the state of Ohio'. That conclusion follows from a reading of Sec. 6 which does apply to plats in municipal corporations.

Section 2 of the act provides that the lots shall be numbered progressively and that dimensions be stated on the plat.

Section 3 provides for the planting of stones.

Section 4 provides:

“That the plat or map, after having been completed, shall be certified by the surveyor and acknowledged by the owner or owners of the town and recorded in the recorder’s office of the county in which said town is situated.”

Section 8 provides:

‘ ‘ That the map, when recorded, as required by this act, shall be deemed and considered in law a sufficient conveyance to vest the fee simple of all such parcels of land as are therein expressed, named or intended for public use, in the county in which the town is situated, for the uses and purposes therein named, expressed, or intended and for no other use or purpose whatever. ’ ’

The plat of 1836 complies with all requirements of the act of 1831, if it was acknowledged “by the owner or owners of the town.”

What is the evidence on that subject?

The deeds before us show that when the plat was made, one Chester Horner was the owner of three-fourths undivided interest in common in part of the land here in dispute, shown as part of Center street, and Elijah W. Harris was the owner of part of it, and neither of them acknowledged the plat.

The plat, then, was not acknowledged by all the “owners of the town” as required by See. 4 of the act of 1831, and was ineffectual to dedicate the streets shown thereon for street purposes.

Plaintiffs are not barred from claiming title by prescription under the rule that title to lands dedicated for street purposes can not be acquired by adverse possession, for these'lands were never so dedicated.

It follows that plaintiffs are entitled to the relief they pray for and decree may be drawn accordingly.

Marvin and Niman, JJ., concur.


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

text:
    MANDAMUS — MUNICIPAL CORPORATIONS
    [Hamilton (1st) Court of Appeals,
    February 5, 1915.]
    Swing, Jones and Jones, JJ.
    State ex rel Cincinnati & S. Bell Tel. Co. v. Norwood (City) et al.
    1. Contracts with Utility Companies for Laying Conduits Which may be Terminated or Modified.
    An ordinance granting the right to a telephone company to construct and maintain underground conduits in the streets, avenues and public ways of a municipality, but imposing conditions of so meager and indefinite a character as to necessarily imply that the real conditions are vested in the discretion to be exercised by the director of public service, and which ordinance had not been accepted by the company or acted under by it, is subject to revocation, and the revoking ordinance under consideration in the present case is held valid.
    2. Rights under Municipal Grant not Determinable in Mandamus.
    A controversy between a municipality and a telephone company as to the right of the latter to be granted a permit to lay conduits in certain streets can' not be determined in a mandamus proceeding.

      Miller Out colt, J. W. Heintzman and Frank Cook, for plaintiff.

      8. A. Headley, for defendants.
   JONES (O. B.), J.

The relator in this case, a telephone company under the laws of Ohio, seeks by writ of mandamus to compel the director of public service of the city of Norwood and the city of Norwood to issue a permit to it to construct and maintain underground conduits, with the necessary manholes and laterals for same, in five certain avenues in the city of Norwood.

The right is granted to a telephone company regularly organized in Ohio to use the highways of the state by provisions of law found in Sec. 9170 to 9198 G. C., but it is provided by Sec. 9170 that the construction of such line “shall not incommode the public in the use thereof,” and by Sec. 9197 and 9198, that consent of the city or village must be obtained therefor, and in the construction and maintenance of underground wires and pipes or conduits and other fixtures that consent shall be given by council. These sections indicate sufficient official control to prevent the public from being incommoded by these utilities in the use of public highwáys.

In a municipality the council and the director of public service have the care, management and- control of the streets and the highways. Sections 3714, 4240, 4324, 4325 and 4326 G-. C. And the municipal authorities have power to determine on the mode of use.

In Queen City Tel. Co. v. Cincinnati, 73 Ohio St. 64, 81 [76 N. E. 392], it is determined that where wires are to be laid underground, “that the consent of the city is thus made an essential condition.” No terms are fixed by the statute as to the mode and manner of the use of the streets, but it is left to the determination of the municipal authorities. It was clearly not-the intention of the Legislature to confer a carte blanche to such companies to use as much or as little of the public streets or highways as they might see fit, and it was evidently intended to confer upon the municipality sufficient authority to deal with the subject and to impose proper terms upon the company in granting its consent. Columbus Citizens Tel. Co. v. Columbus, 88 Ohio St. 466, 468, 469 [104 N. E. 534],

Council of the city of Norwood on December 18, 1913, passed an ordinance authorizing the relator telephone company to construct and maintain underground conduits in the streets, avenues and public ways of said city, one of the conditions of the ordinance being.that:

“No streets, avenues, alleys or public ways shall be disturbed for the purpose of constructing conduits until said telephone company shall secure a written permit from the service' director of the city of Norwood.”

The ordinance fails to specify what streets or public ways are to be used; whether the wires and conduits are to be placed in thoroughfares or in back streets and alleys; whether all.public ways are to be used, or those to be selected by the company or those to be selected by the city authorities; how many conduits are to be laid in any street; what size, form, or what material, or what manner of construction is to be used; how much and what portion of the street is to be occupied; how deep they are to be laid' and what provision is to be made to prevent interferenee with, sewers, water pipes, gas pipes -and house connections for same. The only conditions provided by the ordinance are:

1. The one quoted above, that the company must secure a written, permit from the director.of public service.

2. That the conduits shall be of sufficient depth and strength to permanently maintain the surface of the streets without breaking, and constructed under the supervision and to the satisfaction of the city engineer, and that the street or public way shall be restored to “its former state of usefulness” and the city saved harmless from damages caused to persons or property.

3. A reservation of sufficient space in each subway for wires for the fire and police departments of the city.

4. The giving of a bond of $2,000 to secure faithful performance of the provisions of the ordinance.

All the other provisions and conditions for the protection of the city of Norwood must evidently have been intended to be covered by the written permit which the ordinance requires must be first secured from the service director before any street or public way should be disturbed for the purpose of constructing such conduits. This necessarily confides to this important officer, who is made by law the chief administrative officer of the city, a high degree of official discretion to be exercised by him in determining what conditions shall be imposed upon the issuance of this permit. It can hardly be claimed that the service director is a mere automaton vested with no official discretion, and that he is compelled to issue a blanket permit to open any street or avenue at any place for the purpose of constructing conduits of any kind or description that the telephone company may be pleased to request.

The defendants in their answer, however, deny that the ordinance was ever accepted by the telephone company, and allege that it was repealed by an ordinance passed February 16, 1914, and as no time was fixed in the ordinance for the duration of the grant and nothing had been done by the telephone company under the terms of said grant, the city was within its legal rights in the repeal of said ordinance.

It appears from the evidence that the telephone company on December 31,1913, deposited with tbe clerk.of tbe council of the city of Norwood a bond in the sum of $2,000 guaranteeing that it would faithfully comply with the provisions of said ordinance. No written acceptance, unless said bond can be considered such, was filed with the city, and no action is shown to have been taken by the city council looking to the approval of said bond or showing that it had in any way been brought to the attention of the council. It also appears that between December 18, 1913, and January 15, 1913, certain plans and blueprints were prepared at the instance of relator, a copy of which was attached to the application made by said company to the director of public service for permission to construct conduits in certain parts of Wayland avenue, Regent avenue, Hudson avenue, Elsmere avenue and Floral avenue, and which application was dated February 18, 1914. It appears that these plans were actually prepared before the ordinance became effective, and there is no evidence to show that the preparations of these plans had in any way been brought to the attention of any of the municipal authorities of said city of Norwood prior to the date of said application. On February 16, 1914, the council of the city of Nor-wood duly passed an ordinance repealing its former granting ordinance No. 2585 which had been passed December 18, 1913, and under which the relator claims to have secured vested rights for the construction of said conduits. The application for permit was made February 18, 1914.

Under this state of facts it therefore becomes a question whether a contract or franchise had been created between the parties, which had become irrevocable without mutual consent. It is undoubtedly essential, to create such a grant, that an acceptance must be had on the part of the grantee. This is usually evidenced by a formal written acceptance filed with the granting authority, but such written instrument is not absolutely necessary, but the acceptance may be evidenced by the acts of the parties.

When a franchise has been created by a grant duly accepted, it can not be revoked merely at the will of the grantor. Louisville v. Cumberland Telephone Co., 224 U. S., 649 [32 S. Ct. 572; 56 L. Ed. 934]; Grand Trunk Western Ry. v. South Bend, 227 U. S. 544 [33 S. Ct. 303; 57 L. Ed. 633]; Owensboro v. Cumberland Telephone Co., 230 U. S. 58 [33 S. Ct. 988; 57 L. Ed. 1389]; Russell v. Sebastian, 233 U. S., 195 [34 S. Ct. 517; 58 L. Ed. 912].

In each of these cases it appears that there was no question of acceptance, operation and large expenditures of money under the grant.

But if no formal acceptance has been had, and no' steps have been taken amounting to an acceptance by the acts of the parties, and no money has been expended under said grant, it would appear that by proper action the granting authority might withdraw its proposed grant and change the terms and conditions thereof, or revoke it entirely.

New York Electric Lines Co., In re, 201 N. Y., 321 [94 N. E. 1056], the following language is used in the opinion of the court, page 331:

‘ ‘ The question thus arises as to whether a bare acceptance of the permit granted by the resolution of the common council amounted to an irrevocable franchise granted by the city. Clearly in the absence of partial performance under the permit, by which some vested interest in property is acquired, the state does not become bound by such permit.”

And on page 334:

“Should a public service corporation be permitted to acquire an irrevocable franchise by mere acceptance without spending a dollar by way of performance, and then hold up the public in its enjoyment of the privileges contemplated by the grant indefinitely, or until they can be bartered away for a fortune? Should the municipalities to whom the Legislature has delegated the right to grant permits for the use of their streets for public service purposes be denied the power to revoke licenses granted in case of failure of the grantee to render substantial performance? We think not. No reasons for the deprival of the municipalities of such power are suggested and none are apparent to our minds. We, therefore, incline to the view expressed by the trial court that the mere granting of a permit by a city to a cor • poration to use the streets for a purpose, is a license merely, revocable at the pleasure of the city, unless it has been accepted and some substantial part of the work performed contemplated by the permission sufficient to create a right of property and thus form a consideration for the contract.”

This case has been reviewed by the Supreme Court of United States, where the judgment of the New York Court of Appeals was affirmed, and will be published in New York Elec. Lines v. Empire City Subway Co., 235 U. S., 179 [35 S. Ct. 72; 59 L. Ed. 184].

The principle laid down in the case of East Ohio Gas Co. v. Akron, 81 Ohio St. 33 [90 N. E. 40; 26 L. R. A. (N. S.) 92n; 18 Ann Cas. 332]:

“Where the contract between a municipal corporation and an incorporated company is silent as to the duration of the franchise, such franchise is not perpetual but the duration thereof is simply indeterminate, existing only so long as the parties mutually agree thereto,”

would further support the right of the municipality to repeal a granting ordinance before any acts, operations or expenditures had been had thereunder by the grantee.

In the case at bar, considering the meager and indefinite character of the conditions imposed by the granting ordinance, which necessarily imply that the real conditions are vested in the discretion to be exercised by the service director in granting the permits thereunder, it can not be claimed that anything had been done which would cause this so-called franchise to become irrevocable by the city, and in the opinion of the court the action of the city council in passing the revoking ordinance must be held to be valid.

Even if the court should be wrong in its conclusion in the matter of the effect of the revocation ordinance, it would still be a question as to whether relator has established in this ease the right to the writ of mandamus sought herein. The writ is defined by Sec. 12283 G-. C. et seq. It can only issue in a case where there is a clear right and an absolute obligation and where there is no adequate remedy in the ordinary course of law. The office of a writ of mandamus has been very fully considered and carefully analyzed in the opinion of Shauck, J., in the case of Fraternal Mystic Circle v. State, 61 Ohio St. 628 [48 N. E. 940; 76 Am. St. 446],

In the case of State v. Smith, 71 Ohio St. 13, a writ of mandamus was refused against a county auditor where the right to require him to do the thing sought was not clear and the duty was not one specifically enjoined upon him by law.

In Mt. Vernon v. State, 71 Ohio St. 428 [73 N. E. 515; 104 Am. St. 783], the third proposition of the syllabus states:

“A controversy between the parties to a contract as to their respective rights under the contract can not be determined in proceedings in mandamus.”

State v. Moore, 42 Ohio St. 103:

‘ ‘ If judgment or discretion must be used by an officer, his exercise of them in the- absence of fraud, bad faith or abuse of discretion will not be controlled or directed by mandamus.”

A clear right to the issuance of the permit not having been shown, and the director of service being undoubtedly vested with official discretion in regard to same, the writ of mandamus prayed for must be refused.

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


text:
    BILLS OF EXCEPTIONS
    [Hamilton (1st) Court of Appeals,
    December, 1914.]
    Swing, Jones and Jones, JJ.
    Joseph B. Kelley, Admr. v. Louis P. Hermann et al.
    Bill of Exceptions Filed before Overruling Motion for- New Trial but not Until Eighty Days after Judgment too Late.
    There is no warrant for considering a bill of exceptions which was not filed in the court of appeals until eighty days after the entering of the judgment in the common pleas court, notwithstanding said judgment was entered more than a month before the overruling of the motion for a new trial. and the .bill of exceptions was within proper time allowed and filed in the trial court within seventy-seven days. Had it been filed in the court of appeals on the same day as in the common pleas court it might have been considered.
    W. F. Chambers and J. B. Belief, for plaintiff in error.

      Simeon Johnson, for defendants in error.
   JONES (O. B.), J.

This cause comes before the court on a motion filed by a defendant in error to strike from the files the bill of exceptions filed herein because the same was not filed within the time provided by law.

The record shows that a final decree was rendered in this case February 20; 1914. Motion for new trial was filed February 21, 1914, by the present plaintiff in error, who was defendant below, which motion was overruled on March 21, 1914. On April 16,1914, a bill of exceptions was prepared and filed by the defendant below, plaintiff in error here. After objections and an extension of time this bill of exceptions was allowed and filed in the trial court, May 8, 1914. On May 11, 1914, the bill of exceptions with an additional transcript showing its filing below was filed in this court. The petition in error, original papers other than the bill of exceptions, and the original transcript, were filed in this court March 30, 1914. It will be observed that the bill of exceptions was originally filed on the 26th day after the overruling of the motion for a new trial, and was within the time prescribed by Sec. 11564 G. C.; and it was finally allowed and filed in the trial court on the 48th day after the overruling of the motion for a new trial, which was within the time prescribed by law.

It is contended by defendants in error that under the provisions of Secs. 12263 and 12270 G. C., as amended, a bill'of exceptions must be filed in the court of appeals within seventy days, and that if filed later than that date it can not in any event be considered. This brings the court to a construction of the terms of Sec. 11572 G. C., which is as follows:

“A party desiring to have a final judgment or order reviewed, on error, may file his petition in error, his transcript and other papers in the proper court, without waiting to perfect a bill of exceptions, and thereupon may, if he desires, secure a stay of execution of such judgment or order, by giving the bond therefor as provided by law. Thereafter, within the time limited by law therefor, he may prepare, have allowed and signed, a bill of exceptions, which, when duly allowed and filed in the trial court, he also may file in the error proceeding; whereupon it shall be received and considered by the reviewing court as if filed with his petition in error.”

The words found in the last sentence of this section, “within the time limited by law therefor, ’ ’ refer to the time fixed for the original filing of the bill of exceptions in Sec. 11564, and for the signing and allowing of same by the trial judge, including any extension of time made by him under Secs. 11565 to 11571 inclusive. And the words in the same section ‘ ‘ which when duly allowed and filed with the trial court he may also file in the error proceeding, ’ ’ fix the utmost limit within which a bill of exceptions may be filed in the error proceeding as the time when it must be filed in the trial court if beyond the seventy day period fixed by Section 12270 G. C.

In this case the final allowance and filing of the bill of exceptions by the trial court, May 8, 1914, was seventy-seven days after the entry of the judgment, and if the bill of exceptions had been filed in the reviewing court on the same day that it was filed in the trial court, under the terms of Sec. 11572, it might be received and considered, even though it were filed seven days after the limit of time ordinarily fixed. But plaintiff, on whom the duty rested, failed to file the bill of exceptions in this court within that time, but filed it three days later, which is outside of the utmost limit allowed by law, and there is therefore no warrant for its consideration by this court.

Motion to strike it from the files will therefore be granted. And it appearing from an inspection of the record that a bill of exceptions is necessary to show any of the errors claimed in the petition in error, the judgment of the court below must be affirmed.

I agree with my associates in the construction of Sec. 11572 G. C. I most reluctantly concur in the action of the court in striking the bill of exceptions from the files, and do so only because the question seems to have been settled in this state by the language of the court in deciding the case of Young v. Schallenberger, 53 Ohio St. 291 [41 N. E. 518], and by Dowty v. Pepple, 58 Ohio St. 395 [50 N. E. 923].

The construction which I think our statutes bear is discussed and expressly disapproved by Judge Williams on page 299, et seq., of the opinion in the former case. It will be noted that it was claimed by counsel for plaintiff in error in that case “that the judgment was prematurely entered, and for the purposes of the question here should be treated as renderd at the time of the overruling of the motion for new trial.” The Supreme Court found against this contention. At that time six months were allowed from the date of the judgment within which to file a petition in error and it is quite likely that situations such as this did not often arise.

But with the time reduced to seventy days they become less rare. "Within two months this court has stricken from the files four bills of exceptions. In at least two instances the motions for new trial were still pending, and in one case it had not been argued, seventy days after the entering of the judgment. The motions for new trial in all of the cases, as in this, were filed under authority of Sec. 11576 G. C. That section is found in Chapter 5, Part 3, Title 4, Division 3 of the General Code. In this section and throughout the chapter where it is found, the motion for a new trial, such as was filed in this case, is described as a motion after “a verdict by a" jury, a report of a referee or master, or a decision by the court” (see See. 11575 G. C.). This chapter bears the heading “New Trial.” Chapter 6 of Division 4, Part 3, Title 1 of the General Code, bears the heading “Other Relief after Judgment.” This is probably only important to show the construction placed upon these sections by the codifiers and the views they held which led to this collection and arrangement of the provisions of the code with reference to the re-submission of a case.

I think that the judgment by the court below in this case was entered prematurely. The section under which the motion for new trial was filed contemplates, and indeed expressly provides, that such motion must be filed after the decision, verdict or report.

The understanding which I have of this and the following sections is that the motion and the decision thereon must antedate the judgment. When the legislature provided that the motion should be made within three days after the decision, the intention was that it should be made before the judgment, and this is as clear to my mind as if the words “before judgment” were incorporated in the statute. A judgment entry made prior to the disposition of a motion for new trial is not void but is, with due respect to the opinion of the Supreme Court, prematurely entered. And for the purpose of this motion the judgment should be considered as having been entered at the time or after the motion for new trial was overruled.

Such a construction would obviate much of the difficulty and awkwardness in which attorneys and clients are placed by the unauthorized haste in which judgments are entered in cases like unto this. A situation in which a lawyer finds that he is required to prepare and file a petition in error and bill of exception^ while his motion for new trial is still pending, and before he can be sure he will have any complaint to urge in reviewing court, certainly calls for new legislation or a new construction of that which we now have. I am of the opinion that no new legislation is necessary and that, if practicable, the matter should again be presented to the Supreme Court for consideration.

Swing, J., concurs.

Jones (E. H.),‘J., concurring.


author: DUSTIN, J.

text:
    APPEAL — -FRAUD—VENDOR AND PURCHASER
    [Cuyahoga (8th) Circuit Court,
    May 10, 1912.)
    Niman, Dustin and Pollock, JJ.
    Judge Dustin of Second Circuit and Judge Pollock of Seventh Circuit Sitting in Placet of Judges Marvin and Winch.
    O.W. Johnson and Susie Johnson v. H. A. Tilden et al.
    1. False Representations as to Rental Value Ground for Rescission of Contract.
    In a contract for the sale of real estate, false representations as to the rental value of the property and as to the existence of a sewer connection in a house, constitute fraud, for which a rescission of contract will be granted.
    2. Reviewing Court on Appeal in Action for Rescission Heard on Transcript will Follow Trial Court on Weight of Evidence.
    In an action in equity for the rescission of a contract, heard upon a transcript of the evidence in the court below when there is some uncertainty as to the weight of the evidence, an appellate court will accept the conclusions of the trial court which saw the witnesses face to face, and had better opportunity to judge of their credibility.
    Appeal.

      E. J. Doolittle, for plaintiffs.

      F. G. Scott, for defendants.
   DUSTIN, J.

This ease was brought in the common pleas court for a rescission of a certain contract for the exchange of real estate on the ground of deception and fraud. There was a denial of misrepresentation, denying the knowledge, of certain facts, and an assertion that Johnson had warning and an opportunity to examine, knew all of the facts and that he later was satisfied. On the hearing in the common pleas court, the court granted the prayer of the petition and gave a decree for a rescission of the contract in quite lengthy terms. The case is here upon the transcript of the evidence below and upon some new and additional testimony.

Now, the story of the case is about as follows:

Johnson had a farm of 117 acres in his wife’s name, which he desired to exchange; Tilden had a lot of city property which he was willing to exchange. The two got together through agents, the agent of Tilden being one Hepner. Johnson came to town and looked over the properties, being conducted about by Hepner. He claims that Hepner made misrepresentations as to certain houses on Ninety-First street in two respects; one is as to the rentable value, or rather what the actual rental was, claiming that it was'$25 per house for the two houses, whereas the truth of the matter was that the rental was only $18; also that the cellar was adequately drained by a sewer in the street, whereas it wasn’t drained at all by the sewer, but the laundry tubs in the cellar drained into a cesspool in the rear, and the cesspool would fill and overflow back into the cellar, and the house was uninhabitable part of the time on account of standing water in the cellar to the extent of several inches in depth; there was no connection of the cellar with the sewer. Also claimed that there was misrepresentation as to the rentable value of other properties on Ninety-Ninth and One Hundred and Twelfth streets. Some of these properties were new and not yet rented, but the claim is that he represented that certain parties were anxious to take them at certain prices, all of which was false and he knew the same to be false. Also that as to the properties on Ninety-Ninth street, there was a misrepresentation as to the gas connection. Gas pipe was there in the house, a new house, and the representation was, according to Johnson, that they ■would furnish the fixtures according to the choice of the purchaser; that there was connection there, but it turned out that there was no connection at all; there was no gas on the street. Also that there was general misrepresentation as to the value of these properties, Johnson not being acquainted with city values, and the representation was so extravagant that it makes it a ease of gross failure of consideration.

Now, as to the matter of rental value of the Ninety-First street houses, it appears that the agent took Johnson to one of the tenants to advise with her, to confirm his story and she reported that the rental was $25 a side, but it afterward appeared in examination of this witness that shortly before the collector of rent had appeared and told her that hereafter the rent would be $25, and it was claimed that was a part of the scheme to deceive Johnson. As to the other tenant of the Ninety-First street houses, she was absent at the time and no information could be obtained from her.

Later, the parties all met in a law office to talk matters over and to make out deeds and exchange papers. Meantime Johnson had had a tip from one of the tenants as to water standing in the cellar and a statement made that there was no connection with the sewer, whereupon Tilden, being present at this conference, brought up one Brister or Brisker who had owned the property, to state that there was a sewer there that he had constructed, and that the engineer’s office of the city would show a sewer in that street. That seemed to calm the fears of Johnson, and there was also an explanation as to the rental. He had a tip that it was also only $18, and the explanation was that if that was the ease, and only $18 has been paid for the current month, and that there was some yet due, and in the adjustment of taxes and interest upon mortgages (for all of these properties were encumbered, including the farm, and there had been an adjustment of taxes and interest), there was an allowance of one-half the rental received for that month, which was $18.

The papers were exchanged and some of the properties being new and liable to mechanics’ liens, the deed for Johnson’s farm was placed in escrow, not to be delivered until the time had expired within which mechanics’ liens could be taken. This was in November. At the same time there was found to be due Johnson about $203 which they settled for $200 on the adjustment of interest and taxes and this rent, and a check was given Johnson for $200, post dated thirty days. Johnson did not discover the post date on the check and deposited it at once with his bank, but it was ultimately returned, as there was nothing due, and one of the claims in the petition is that there is $200 due on that, and that was considered as evidence of fraud, and it appears that there was no money to meet that check, nor was it ever paid, but the claim of defendant is that there was a tender made of the amount of that check, and they acknowledge the amount due in the answer and express a willingness to pay it.

It is claimed on the part of the defendants that Johnson was not a farmer but a business man, to some extent acquainted with values; he was anxious for the trade and thought that he was getting the better of the bargain; that he expressed himself afterward as satisfied, and apologized to some extent for some remark he had made concerning their efforts to misrepresent, but it also appears that his apology was made within a few days and before he had come into a full realization of the situation, and that he did not find out about the sewer and all the facts in the case until later. As against that, there is some evidence tending to show that Tilden, in talking over the matter of the cellar with Johnson, said: “This property should be raised.” That Tilden said, referring to this house, “I had bids upon it, and it would cost about $400 to raise it, and that if he had kept the property he would have raised the house.” And he (Johnson) seemed satisfied at the time.

Also claimed that this representation as to the rental value of these other properties, new, was a near estimate of what they might bring, and they should not be chargeable with any deception there.

The testimony is quite lengthy, and as to the principal points in dispute is contradictory, especially as to what occurred in the office in the presence of Johnson and Tilden. But upon looking it all over, all the facts and circumstances, all testimony in the case, we have arrived at the same conclusion as the court below. The case is made out by a preponderance of the evidence. It is not a very strong case, but we are inclined to give to the court below the benefit of any doubts we might have as we would to the verdict of a jury, because the situation was before that court; he could see and hear the witnesses and he has issued a decree for a rescission of the contract.

I should mention, perhaps, the claim that it is too late for rescission. We do not think so. The farm property is still intact, the personal property which was in the contract for exchange was not disposed of, and was so prevented by injunction, and as to the mortgages, they may be paid, according to interest due upon them and taxes.

Of course, since the decree below, there have been rents collected by Johnson, of which we have no evidence as to the amount, and there is rent, of course, on the farm. We haven’t the facts before us to make an exact decree, because we do not know what was collected by Johnson, nor have we any evidence as to the reasonable rent of the farm. There is something yet to be done by the attorneys here. They ought to be able, without much trouble, to make an adjustment of these matters. We will issue a decree for rescission, and a retransfer of the real estate and personalty,' and as to the adjustment of these differences of the taxes and rentals and interest, if the parties can not agree, we will refer the same to a master.

There is some language in the decree below to which we do not quite agree. It is stated in two places that the house was found to be uninhabitable. We think that is putting it too strong. It was not uninhabitable except at times; it was probably unwholesome and uncomfortable, and by reason of the water in the cellar, was not rentable, but it was not uninhabitable. This phrase should be stricken out.

The court also says that the rentals received by Johnson were far less than the amount expended by him; that, therefore, he is not held accountable for the rent, but not stating what they were in either case. That should probably be made more definite.

If counsel will take a cue from what we have stated to them and get together upon this situation as it has developed since the decree of the common pleas court, we should be able to approve, any agreement they make. If they are unable to agree, they can present the matter to the court for adjustment, or to a master for more accurate determination.

Niman and Pollock, JJ., concur.


text:
    BANKRUPTCY — PARTNERSHIP
    [Cuyahoga (8th) Circuit Court,
    May 10, 1912.]
    National City Bank v. Abraham C. Wertheim et al.
    Discharge in Bankruptcy of Individuals Doing Business as Partners Discharges from Individual Liability.
    When partners have all signed a bankruptcy petition individually, setting up that they have surrendered their property individually as well as a partnership, were all adjudicated bankrupts individually as well as a partnership, but the final order of the court, was that they were discharged from provable claims against them as partners, the discharge relieved them from any individual liability for the debts of the partnership.
    Error.

      Hidy, Klein & Harris, for plaintiff in error.

      Max E. Meisél and J. H. Swmpliner, for defendants in error.’
   DUSTIN, J.

This is an action brought for the balance due upon certain-promissory notes. There is an answer setting.up a discharge in bankruptcy in certain proceedings in which a petition was filed by Wertheim and two partners, doing business as the Northern Ohio Cigar Co. The reply makes the issue, however, that the discharge was not of the individual partners, but of the partnership, and the question, of course, arises upon that, in view of the record.

Now the petition was by the partners individually; they all signed the petition; they set up that they have surrendered their property individually as well as a partnership, and scheduled the same. They were all adjudicated bankrupt individually as well as a partnership, but when it came to the petition for discharge, the order of the court was that they were discharged/ from provable claims against them as partners, doing business as the Northern Ohio Cigar Co., and it is claimed under that discharge, that the defendants named herein are not individually relieved.

With such a state of facts and the briefs, which were quite elaborate and learned, and oral arguments which were quite helpful to the court also, we have reached the following conclusion :

We think the weight of authority and the better reasoning are in accord with the views announced by Judge Chapman in his written opinion in this case.

The petition in bankruptcy was signed by the partners individually, and the entire individual estates were scheduled and surrendered for the partnership creditors, there being no individual debts alleged or proven. As individuals, they were adjudged to be bankrupts. That would have been untrue and an improper judgment, if either member of the firm had retained any estate available to creditors.

The presumption is that it was true and founded upon sufficient evidence and the parties were, therefore, entitled to a discharge. The discharge was ‘ ‘ from all debts and claims which are made provable by said act against their estates as partners, ’ ’ etc.

Plaintiff’s claim (like all others) was a partnership claim, and was extinguished under the bankruptcy act, by the surrender of the partners’ “estates,” as well as the partnership property.

There was no need of a discharge from individual indebtedness, because there was none. And as to plaintiff’s claim, we think there was a specific discharge from all in its class.

In distinguishing the authorities, we think the point is well taken that the cases favorable to plaintiff’s view arise under involuntary bankruptcies, where acts of bankruptcy may be committed by the partnership, not applicable to the individual members, who are not covered by findings as to the partnership. But in the case at bar there was a petition by all the partners individually as well as a firm, and a surrender of both kinds of property, giving the court the widest latitude in its decree, of which latitude we think it has taken advantage. The fact that one of the partners, out of an abundance of caution, thought best to first separate petition, can have no effect upon the scope of validity of the other decree, and does not indicate the views or intentions of the court with reference thereto.

The judgment will therefore be affirmed in this, as in two similar cases, 5071 and 5072, in which the same questions are involved.

Niman and Pollock, JJ., concur.


text:
    MUNICIPAL CORPORATIONS — WATERS AND WATERCOURSES
    [Summit (8th) Circuit Court,
    October 12, 1912.]
    Marvin, Winch and Niman, JJ.
    Joachim Evers v. Akron (City).
    Municipal Corporation Liable for Increasing Flow of Surface Water.
    A municipal corporation is liable to a land owner for damages resulting from an increased flow of surface water upon his land, caused by a change in street grades by which water is brought from another street to that upon which the land abuts and from which it flows upon the land.
    Error.

      Hollmoay <& Chamberlain, for plaintiff in error.

      J. Taylor, for defendant in error.
   WINCH, J.

The plaintiff sued the city for damages to his property abutting on West Tallmadge avenue in the city of Akron, just west of the intersection therewith of Cuyahoga street, occasioned by the change of grade of Cuyahoga street, which street, he claims, formerly carried' the surface water accumulating and flowing thereon, away from said intersection, but after the change in grade, carried it toward said intersection and to and upon plaintiff’s premises, washing gulleys in West Tallmadge avenue in front of plaintiff’s premises and through his premises, filling up his well and depositing so much gravel upon his land as to make it unfit for cultivation.

The evidence introduced by plaintiff shows that his premises are much, lower than the grade of either Cuyahoga street, which runs north and south, or West Tallmadge avenue, which runs east and west. It was the grade of Cuyahoga street that was changed, not the grade of the street upon which plaintiff’s premises abut.

Evidence was also introduced by the plaintiff tending to show that by the improvement of Cuyahoga street surface water which was accustomed theretofore to flow away from plaintiff’s premises, was accumulated and caused to flow toward and upon his premises and that he had suffered damage therefrom.

At the close of plaintiff’s evidence the court directed a verdict for the defendant, upon the theory, as we are advised, that surface water is a common enemy, which the lot owner may fight by raising his lot to grade, or in any other proper manner, and that the municipality has the undoubted right to bring its streets to grade, and has as much power to fight surface water in its streets as the adjoining private owner.

This doctrine has some endorsement in Dillon, Municipal Corporations, 5th Ed., Secs. 1731 to 1745. It also has some sanction in the ease of Springfield v. Spence, 39 Ohio St. 665, see page 671.

Farnham, Waters denies there is any such rule, and says that its origin and scope are shrouded in mystery.

The latter authority is quoted with approval by Judge Summers, in the case of Mason v. Fulton Co. (Comrs.), 80 Ohio St. 151 [88 N. E. 401; 24 L. R. A. (N. S.) 903n; 131 Am. St. 689], where he also collects many cases on the flow of surface waters. He also says (page 180):

“The law in this state is in harmony with the cases that have been quoted from at such length and they have been quoted from at such length only because of the importance of the questions presented, and because of the seeming difficulty many times in applying the law to the facts.”'

Let us examine some of his quotations.

‘ ‘ The owner of the upper ground has no right to make any excavations or drains by which the flow of water is directed from its natural channel and a new channel made on the lower ground; nor can he collect into one channel waters usually flowing off into his neighbor’s fields by several channels, and thus increase the wash upon the lower fields. ’ ’
“If the owner of the upper ground wrongfully direct an unnatural quantity of water upon the ground of a lower neighbor, by collecting several streams together and discharging them at one place, or by any other means, the neighbor below may have an action against him.”
“The diversion by a land owner of surface water, collecting on his land from rain and melting snow, out of the course which nature has provided for it, in such a way as to cause it to flow upon the land of another where it has not flowed before, is an actionable trespass.”
“While the owner of the lower lands shall receive all water that naturally flows from the next higher lands, the owner of the higher lands may not open or remove natural barriers, and let on such lower lands water that would not otherwise naturally flow in that direction.”
“It is now well settled that neither a corporation nor an individual can divert water from its natural course so as to damage another.”
“A lower tenement is under a natural servitude to a higher one to receive from it all the surface water, accumulating from falling rains and melting snow, or from natural springs that naturally flow from it to and upon the lower one. This advantage of the higher tenement is a part of the property of the owner of it, and he is not indebted to the lower tenement therefor.”

This last quotation is from the syllabus of the case of Blue v. Wentz, 54 Ohio St. 247 [43 N. E. 493]; the syllabus of the case of Mason v. Fulton Co. (Comrs.), 80 Ohio St. 151 supra, conforms to it.

The record of the ease at bar tends to show that the defendant changed the natural flow of the water on Cuyahoga street, collected into one channel water that usually flowed off upon the lower lands by several channels and discharge it at one place, thereby materially increasing the wash upon plaintiff’s fields. The record seems to show that the damage complained of by plaintiff was occasioned by water that would not naturally have flowed in his direction.

As he was not an abutter upon the street, the grade of which was changed, he never had an opportunity to be compensated for any damage that change of grade might occasion him.

It is the settled law of this state, though Dillon also criticizes the Ohio cases which enunciate it, that “a municipal corporation, like an individual, is liable for injuries resulting to the property of others from the acts of such corporation, though acting within the scope of its corporate authority, and without any circumstances of negligence or malice. ’ ’ McComb v. Akron, 15 Ohio 474.

It is therefore liable for damages resulting from a violation of those rules of law which concern the flow of surface waters the same as any individual might be liable.

The petition and the evidence in this case would have been sufficient to warrant its submission to the jury, if the defendant had been an individual. This being so, the fact that the defendant was a municipal corporation did not warrant the case being taken from the jury.

A case something like this is reported in Cincinnati v. McLaughlin, 31 O. C. C. 503 (12 N. S. 220) where the city of Cincinnati was held liable for unnecessarily collecting and casting upon plaintiff’s premises more surface water than would naturally flow thereon. There an eight-inch pipe was emptied by the city on the hillside back of the plaintiff’s premises. It was probably a drain for surface water from some other street.

Judgment reversed and cause remanded for further proceedings.

Marvin and Niman, JJ., concur.


text:
    VENDOR AND PURCHASER
    [Cuyahoga (8th) Circuit Court,
    November 13, 1912.]
    Marvin, Winch and Niman, JJ.
    Taylor Land & Improvement Co. v. Frank H. Elworthy.
    Validity of Contract for Sale of Real Estate.
    A written contract for the sale of certain real estate which is definite as to the subject-matter of the .contract, the amount to be paid and the dates of payment, shows a meeting of the minds on all the material parts of the contract and it is not rendered unenforceable by the fact that a blank space was left to be filled in with a list of second mortgages to be taken as collateral to secure the payment of the purchase money when due.

      A. C. Wa/id and Gteier, Farrell & Edouards, for plaintiff in error.

      Dellenbaugh, Newman & Heintz, for defendant in error.
   The real question in this case is whether the parties hereto entered into a contract on April 13,1909. If-they did, the plaintiff is entitled to recover in this action, for it is not claimed that the defendant has performed any such contract, while it is clear from the evidence that if what was done by the parties on that day constituted a contract between them, there has been no failure to perform on the part of the plaintiff.

On the date mentioned the parties both signed in duplicate a written instrument, each taking a copy.

The clauses of said writing especially to be considered to determine whether it constitutes a contract, read as follows:

“The party of the first part hath this day agreed to sell unto the party of the second part the following described tract or lot of land” (describing it) “and the said party of the second part doth hereby agree to pay to the said party of the first part, its successors or assigns, for the land aforesaid, the sum of thirteen thousand two hundred and ninety dollars ($13,290), being the value of said premises, payable as follows: The said Frank H. Elworthy is to execute his promissory note of even date for said sum of $13,290 payable in sums of $135 per month, said promissory note to be secured by the following notes and second mortgages as collateral.”

This last sentence is not followed by any list or description of any notes or mortgages, the next words reading, “together with interest thereon from this date,” etc.

On the part of the defendants it is urged that this omission to name the contemplated collateral shows that the minds of the parties never met, and that there was therefore no contract.

We do not regard this contention as sound. Their minds did meet on the' terms of the sale. The plaintiff was to sell the premises to the defendant for a definite sum of money, which sum the defendant promised to pay at a fixed rate per month, and to evidence this he was to give his promissory note.

The language quoted indicates that the parties contemplated that certain collateral security would be given, but there was a distinct promise to sell at a price; there was a distinct promise to pay that price in fixed installments, and to evidence such promise to pay installments by a primossory note. Nothing else was fixed by this contract, but all these things were fixed.

If it be urged that this blank in reference to the collateral shows that the minds of the parties did not meet, to a degree, at least, the same argument might be urged because of another blank in the instrument as to insurance, in the following sentence: “Said grantee agrees to have and keep the buildings upon said lot insured in the sum of $-in company,” etc.

It would hardly be urged that because of this blank there was not a meeting of minds, to such degree as to constitute a contract between the parties.

Take the next clause of the sentence relative to insurance; it reads: “In a company to the full satisfaction of said first party. ’ ’

A claim that there was no contract because the minds had not met upon the particular insurance company, whose policy should be obtained, would surely not be sustained.

If we go to the oral evidence to determine whether the minds had met, and if from that we should find that the entire contract was not expressed in the written instrument, we should have to find that they did meet upon the proposition that collateral security, in the form of notes and second mortgages to the satisfaction of .John W. Taylor, was to be furnished.

This is as definite and complete a meeting of the minds as there is a building contract which provides that materials and workmanship are to be to the satisfaction of an architect; and yet this is the common form of such contracts, and they are universally upheld. Page, Contracts, Secs. 349 and 1380.

We conclude, therefore, that if there were nothing in the oral evidence to modify the writing, it constitutes a contract. If the same is modified by the oral evidence, such modification is simply that the clause as to the collateral was to be that they were to be such as were satisfactory to John W. Taylor; that this does not make the contract void for uncertainty, and that, therefore, there was a valid contract between the parties and that the defendant has failed to perform.

There is a provision in this contract that failure to pay as stipulated, for three days after any payment becomes due, shall authorize the plaintiff, at its option, to declare all the remaining payments to be due. Nothing has been paid by the defendant; the plaintiff has exercised the option by bringing this suit and is entitled to an accounting of the amount of purchase money and interest remaining unpaid, together with taxes, etc., and to an order that unless the defendant, within a day to be named by the court, shall pay in full the amount so found due, the premises be sold and the avails be applied to the payment of the costs in this action, and to the payment of the amount due the plaintiff.

Decree accordingly.

Winch and Niman, JJ., concur.


text:
    CONTRACTS — GIFTS—MORTGAGES
    [Cuyahoga (8th) Circuit Court,
    December 16, 1912.]
    Marvin, Winch and Meals, JJ.
    Emma S. Townsend v. Citizens Savings & Trust Co.
    1. Mutual Promises to Make Gifts or Contribute to Payment of Another’s Debt, without Consideration, not Enforcible.
    Mutual promises to mate gifts can not be enforced by the donee,' even if some of the donors complete their gifts, unless the donee is an educational, religious or philanthropic institution, or has expended money or incurred obligations arising from the acceptance of the promise; hence, mutual promises to contribute toward the payment of the debt of another furnish no consideration for the promise of one of the number, under no obligation to the promisee, who relinquished no rights and incurred no obligations by accepting such promise.
    2. Deed Executed to Secure Payment Treated as Mortgage.
    A deed executed to secure the payment of money will be treated in equity as a mortgage and not as an absolute conveyance, and when the grantor retains possession of the land such deed is voidable in so far as it was given to secure the payment of an obligation not the grantor’s and for which the grantor received no consideration.
    Appeal.

      A. A. & A. H. Bemis, for plaintiff.

      M. B. & H. H. Johnson and C. B. Mergerth, for defendant.
   WINCH, J.

This is an action by plaintiff to have a deed, absolute on its face, declared a mortgage, for an accounting of the amount due thereon and redemption of the premises.

The deed in question was executed by plaintiff and her husband, F. H. Townsend, August 6, 1907, to David Morison, and at the same time an instrument in writing was executed, which witnessed that said premises were held by said Morison in trust, first, as security for the payment of the indebtedness owing by the grantors to the Dime Savings & Banking Co., and secondly, as security for the payment of the indebtedness of one John P. Cowing to said bank.

Plaintiff’s indebtedness to the bank at that time was about $18,000; it is now somewhat less. Cowing’s indebtedness to the bank was nearly $300,000.

Since the execution of the deed to Morison the Dime Savings & Banking Co. has failed and its assets have all been turned over to. the defendant, the Citizens Savings & Trust Co., to which company Morison, in pursuance of his trust and upon request of the Townsends, has deeded the premises described in the deed to him, the latter company to hold said premises upon the same trusts upon which it was conveyed to Morison.

The Citizens Savings & Trust Co. has since sold the premises to one Harry B. Chapman, who had full notice of the title and facts in the case, and the latter mortgaged them to the Guardian Savings & Trust Co., which company we find took without notice of plaintiff’s claims.

Plaintiff is ready to pay the balance now due on her own original indebtedness to the Dime Savings & Banking Co., but says that she ought not to be compelled to pay any of the Cowing indebtedness to that bank for two reasons; first, because she was mislead by the agent of the bank into signing certain papers in which she assumed the Cowing indebtedness to the bank, and second, because there was no consideration for her assumption of said Cowing indebtedness.

As to the first proposition, it is sufficient to say that the evidence does not sustain plaintiff’s claim.

The second pi’oposition is‘more difficult; it involves a consideration of two written instruments signed by plaintiff and others, one dated August 6, 1907, and executed contemporaneously with the deed to Morison, and the other dated October 18, 1907. Copies of these two agreements are appended to this opinion, but their contents will be stated as briefly as possible.

The writing dated August 6, 1907, is' a three-party agreement; the first parties are plaintiff and her husband, F. H. Townsend; the second party is Charles A. Post, and the third party is David Morison. This agreement recites that the parties “have done and agreed to do as hereinafter stated, the consideration for the things done and agreed to be done by each party being those done and agreed to be done by the other parties. ’ ’

Then follows a statement that first parties, for the purpose of securing payment of the indebtedness of John P. Cowing to the Dime Savings & Banking Co., have conveyed to third party the land here in question, subject to the right of the bank to require said land to be applied in satisfaction of any indebtedness owing to it by first parties jointly. Frank H. Townsend also pledges certain stock for the same purpose, and there is a provision for the application of securities pledged by Cowing and his wife on his own indebtedness. Second and third parties, for the purpose of further securing the indebtedness of Cowing to the bank, agree that after the securities of Cowing and his wife and the securities of first party, so far as applicable, have been applied by the bank to Cowing’s debt, they will each pay one-half of the balance of Cowing indebtedness to the bank, not exceeding, however, $50,000 for each of second and third parties. Second party also pledges to the bank certain securities as collateral for his promise.

The evidence does not show any obligation on the part of plaintiff to pay the bank any part of the Cowing indebtedness, unless that obligation was created by this instrument, or the one of October 18, 1907, which will be referred to later. Whether F. H. Townsend, Charles A. Post or David Morison were under any obligation to the bank to pay any part of the Cowing indebtedness, is immaterial. If they were not, then all the parties to the three-party agreement were volunteers, so far as the Cowing debt was concerned, and their promises in behalf of the bank would be gratuitous; if all but plaintiff owed some moral or legal duty to the bank, growing out of the Cowing claim, that duty from them to the bank does not make the obligation of Mrs. Townsend any stronger; on the contrary, it weakens it.

It is clear that the three-party agreement was made for the benefit of the bank, although it was not a party to the agreement. It is equally clear that no consideration moved from the bank to plaintiff for her promises contained in this agreement; from it arose no benefit to her nor detriment to the bank.

It is claimed by defendant, however, that consideration for plaintiff’s promise is found in the promises of David Morison and Charles A. Post to each pay one-half of the indebtedness of Cowing to the bank after the application thereto of the Cowing securities and the Townsend securities.

To analyze this claim, let us assume that none of the parties were under any obligation to pay the Cowing debt. Then all of them, as is certainly true of Mrs. Townsend, were promising to make gifts to the banks.

Mutual promises to make gifts can not be enforced by the donee, even if some of the donors complete their gifts, unless the donee be of the character found in the case of Irwin v. Lombard University, 56 Ohio St. 9 [46 N. E. 63; 36 L. R. A. 239; 60 Am. St. 727], or has expended money or incurred obligations arising from acceptance of the promise. No such qualifying circumstances are found in this case.

If the other parties were under some obligation to the bank to make good Cowing’s debt to it, then, as was said before, its claim upon Mrs. Townsend’s promise to make a gift is weakened, not strengthened. Had they not completed their promises they could have been compelled by the bank to keep them, but that fact would have completely wiped out any apparent consideration moving from Morison or Post to Mrs. Townsend, in the guise of detriment to them, or benefit to her; nor could her promise then be said, in the language of the case cited, to “in any manner influence the conduct of others.”

So far attention has been given only to the question of consideration for Mrs. Townsend’s promise to pay Cowing’s debt, as contained in the three-party agreement of August 6, 1907. The deed to Morison securing that promise, has not been mentioned.

Were that instrument an ordinary mortgage, it is conceded that this case would be ruled by the case of Kuzell v. Citizens Savings & Tr. Co. 42 O. C. C. 539 (19 N. S. 534), decided by this court February 13, 1912, where it was held that consideration is needed to support a mortgage and that the antecedent debt of a third person is not in itself sufficient consideration to support a mortgage given to secure that debt, but the mortgage must have some new consideration to support it.

It is urged that this was held upon the theory that in this state a mortgage does not pass a legal title until default and possession taken by the mortgagee, but gives only a lien, a contractural right, which requires consideration to support it.

The deed to Morison was absolute on its face; it contained no defeasance clause. It was intended, however, to secure the payment of money and the property was to be reconveyed upon such payment. Mrs. Townsend remained in possession of the premises and the deed must, in equity, be treated as a mortgage, though not a legal one. This is so because equity looks to the substance and not to the form; it gives effect to the intention of the parties. Kemper v. Campbell, 44 Ohio St. 210 [6 N. E. 566]; National Bk. of Columbus v. Tennessee Coal, Iron & Ry., 62 Ohio St. 564 [57 N. E. 450].

This action is between the original parties to the instrument, their privies or those holding with notice of the equities (except the Guardian Savings & Trust Co., whose rights will hereafter be mentioned).

If the deed to Morison is to be treated as a gift, as defendants claim, on the theory of their case now being examined, then there must have been an intention on the part of Mrs. Townsend to make a gift, consummated by delivery. Delivery of what* Not of the deed, which she did not intend as an absolute conveyance, but of the land itself, and of this she retained possession.

We consider that neither in the three-party agreement nor in the deed, both executed August 6, 1907, is any consideration found for Mrs. Townsend’s promise to pay Cowing’s debt, and that neither show an executed gift from Mrs. Townsend to the bank.

It remains to consider whether any such consideration can be found in the agreement of October 18, 1907.

That instrument was signed by the same four persons; it was not signed by the bank. It purports to be a request from said four persons to the bank to accept certain mentioned notes of Cowing to the bank “as evidencing portions of his indebtedness now due said company, and also as evidencing his agreement to repay the same,” and recites that “in consideration of said company accepting said notes, we each agree with said company to be bound by and to do and perform the things stipulated as done and to be done by us, respectively, by the terms of a certain writing bearing date August 6, 1907,” etc., and “that said company may from time to time extend time for payment of any of the said notes,” etc.

This writing doubtless was intended to furnish consideration for the instruments of August 6, 1907, but it fails to do so, because the evidence shows that the notes mentioned in this writing were in the possession of the bank at the time Mrs. Townsend signed this last agreement and were held by it as collateral, only, to Cowing’s original indebtedness, and, as the writing itself states, these notes were held “as evidencing portions of his indebtedness now due” the bank and “his agreement to repay the same.”

Under this agreement the bank suffered no detriment and Mrs. Townsend gained nothing.

Notwithstanding this agreement the bank could still have sued Cowing on this original indebtedness; it did not accept the notes mentioned as payment of any part thereof, nor extend or agree to extend time for payment of the indebtedness to which his said notes were collateral.

It follows that neither the Dime Savings & Banking Co., its trustee, Morison, his successor in interest, the Citizens Savings & Trust Co.,,nor any of the defendants claiming under it, for they took with notice, except the Guardian Savings & Trust Co., are entitled to hold the premises described in the deed to Morison otherwise than as security for Mrs. Townsend’s individual and original indebtedness to the Dime Savings & Banking Co.

The Guardian Savings & Trust Co. holds a mortgage on the premises for $15,000. It is an innocent purchaser for value without notice, as shown by the evidence. Its claim must be proteeted. Protection will be afforded it by requiring plaintiff to redeem from it, to the amount of its claim, paying the balance, if any, due from her on her indebtedness to the Citizens Savings & Trust Co. We understand that the other parties, as between themselves, have protected their own rights, or can arrange with regard to them.

Judgment for plaintiff as indicated.

Marvin and Meals, JJ., concur.


text:
    ASSESSMENTS — COMPENSATION AND SALARIES
    [Cuyahoga (8th) Circuit Court,
    1912.]
    Marvin, Winch and Niman, JJ.
    State ex rel J. A. Cline, Pros. Atty. v. Robert C. Wright et al.
    1. Prosecutor cannot Recover from County Auditor Fees for Collecting Municipal Special Assessments, not Being County Funds.
    A county prosecuting attorney has no authority under Sec. 2921 G. C., to bring an action to recover from a county auditor fees alleged to have been wrongfully retained by him from the collection of special assessments levied in municipalities, as such assessments are not funds belonging to the county.
    2. County Auditor Entitled to Fees for Collection of Municipal Special Assessments.
    Under Sec. 1069 R. S. (Sec. 2624 G. C.), a county auditor was entitled to five-tenths of one mill on all moneys collected by the treasurer on special assessments, even though as a matter of convenience to the treasurer, such special assessments had been transferred to the grand duplicate instead of to a special duplicate.

      J. A. Cline, for plaintiff in error.

      Smith, Taft & Arter, for defendants in error.
   WINCH, J.

The prosecuting attorney of Cuyahoga county brought his action against Robert C. Wright, who was formerly auditor of Cuyahoga county, to recover certain excess fees which said auditor is alleged to have retained on the collection of special assessments levied by various municipalities situated in said county.

A demurrer to the petition was interposed and sustained on two grounds; first, that the prosecuting attorney was not authorized by law to bring the action; and second, that the auditor was entitled by law to the fees retained by him.

We think both of these grounds well taken.

First. The authority of the prosecutor to bring such actions is limited by Sec. 2921 G-. C., to cases where funds of the county or public moneys in the hands of the county treasurer or belonging to the county, have been misapplied or illegally drawn or withheld from the county treasury, and in such cases, the action must be for the use of the county.

Special assessments collected by the county auditor for municipal corporations are not “funds of the county,” nor are they “public moneys in the hands of the county treasurer” within the meaning of said section. They are “public moneys,” it is true, but belonging to the municipal corporations for which they are collected, and no action can be brought for their recovery “for the use of the county,” for the county has no interest in them.

This was held to be the case with regard to moneys paid into the county treasury by virtue of proceedings for the location and construction of a county ditch, in the case of Loe v. State, 82 Ohio St. 78 [91 N. E. 982], and in the case of State v. Sager, not reported, the Trumbull county circuit court, at its September term, 1911, held the same thing with regard to moneys paid into the county treasury by virtue of proceedings for the improvement of roads in special road districts.

Second. Under Sec. 1069 B. S. (Sec. 2624 G. C.), in force when the fees here in question were retained, the auditor was allowed as compensation for his services, two-tenths of one mill on “all moneys collected by the county treasurer on the grand duplicate of the county,” and five-tenths of one mill on “all moneys collected on any special duplicate.”

The petition in this case shows that the auditor transferred the special assessments, certified to him by various municipal-' ities, to the grand duplicate, and not to a special duplicate, and they were collected on the grand duplicate by the treasurer.

This was a mere method of bookkeeping and probably more convenient for the treasurer than keeping a separate duplicate for the special assessments. These levies still remained “special assessments,” however, were collected as such and it is clear that the law intended that- the auditor, for his labor in transferring such assessments, which it appears he has done in this case, should have compensation based upon a percentage of five-tenths of one mill on all special assessments collected.

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

Marvin, J., concurs.

Niman, J., not- sitting.


text:
    ASSESSMENTS
    [Cuyahoga (8th) Circuit Court,
    November 18, 1912.]
    Marvin, Winch and Niman, JJ.
    George Munz et al v. George F. Myers, Treas., et al.
    Special Sewer Assessments in Farm Land District Levying Same Amount per Acre not in Proportion to Benefits.
    Wheré in a sewer assessment district consisting wholly of farm lands, some of the lands are very remote from the sewer, while others are in close proximity to it and would be enabled to use the sewer as an outlet by making a short éxtension, an assessment which levies the same amount per acre upon the remote lands as upon those in close proximity to the sewer, is not levied in proportion to the benefits, and its collection will be enjoined.
    Appeal.

      M. W. Beacom, for plaintiff.

      J. A. Cline, W. D. Meals and Green, Zmuni & Zmuni, for defendants.
   WINCH, J.

This is an action to enjoin the collection of special assessments levied upon the lands of plaintiffs in the village of New-burgh Heights to pay for the building of a sewer in Cuyahoga street in said village, and an outlet thereto. It is contended that although the assessments were pretended to be levied according to benefits, they were not in fact so levied by the municipal authorities.

The case was heard upon an agreed statement of facts from which it appears that Newburgh Heights covers a territory of about three square miles of irregular shape, but extending north and south perhaps twice as long as its width east and west. On the northern boundary of the village is a creek running into the Cuyahoga river. At about the middle of the northern boundary on this creek was established the outlet of this sewer, and it was built to the south from there some 855 feet, to the intersection of Washington boulevard and Cuyahoga street, and then the sewer proper was built southerly some 2,000 feet on Cuyahoga street to Harvard street, which runs east and west.

Cuyahoga street may be said to bisect the northern part of the village and is about three thousand feet long, ending at the tracks of the South Shore Ry., which here runs in a generally east and west direction. The thickly populated part of the village lies north of these tracks; south of them are farm lands.

Washington boulevard, from the point where it intersects Cuyahoga street, curves to the southeast and then runs in a southerly direction parallel to Cuyahoga street, and about one thousand feet east of it, until it ends at Harvard street, from which point Independence road extends to the southerly boundary of the village, as a continuation of Washington boulevard.

All the proceedings for the building of the sewer, issuing of bonds to pay for it, levying assessments and equalizing them, were regular and the assessments levied should be paid, if the amount found to be due from the several property owners was rightly determined according to law.

No estoppel is pleaded or claimed to bar the action of plaintiffs, if they are right in their contention that the assessments were improperly distributed.

In distributing the cost of the improvement the assessing board and the equalizing board determined the area of the territory to be assessed by its elevation with reference to the improvement in question, and limited it to those lands which could be drained into it either by direct connection or through the construction of intermediate sewers having their outlet in the improvement.

The area thus designated for assessment was divided into three classes; the lands furnished drainage by direct connection with the improvement, those furnished drainage through intermediate sewers connecting with, the improvement at some point along Cuyahoga street and those furnished drainage through intermediate sewers to be connected with the so-called outlet at some point north of Cuyahoga street.

No complaint is or can be made of this division of the benefited lands into classes. Plaintiff’s lands belong to the third class and the area thus thrown into the third class, its size, shape and character and the method of dividing the assessments among the owners of property of the third class must be further considered.

From the map in evidence it appears that the first class of property lies along Cuyahoga street; the second class is a compact territory nearly round in shape, lying on both sides of Cuyahoga street, which appears as the north and south diameter of the circle. The third class shows on the map as an irregular strip of land, lying on both sides of Washington boulevard and extending from, north of Cuyahoga street to the south, passing the second class with a narrow width of 200 or 300 feet, and then broadening out to perhaps 1,500 feet in width, then contracting to a narrow width, and lying on both sides of Independence road. Evidently it was thought that another sewer would sometime be built through Washington boulevard commencing north of Cuyahoga street, paralleling Cuyahoga street to Harvard street, and then running south along Independence road a distance of over 8,000 feet, and that the property in this territory, called the third class, would be benefited by a sewer so constructed and emptying into the so-called outlet at the north.

The most graphic way to describe this third class territory, without a map, is to call it a shoe string, with the northerly end tied to the improvement and the southerly end eight thousand feet away on the farms of the plaintiffs. .

Now the assessors state that they levied the assessments within this territory at the rate of $17 for each and every acre of it, the southernmost acre being assessed the same as the northernmost acre lying next to the improvement or outlet.

The council legislated on this subject and declared that all assessments should be according to benefits; the assessors reported the assessments at $17 per acre, and solemnly declared that they had levied the assessment according to benefits; the council adopted the assessor’s report and the report of the equalizing board, which was the same, and all declared that the assessment had been made according to benefits, but the agreed statement of facts contradicts all these statements and shows that the assessment was not made according to benefits, but by a rule of thumb which is nowhere authorized by the statutes of • Ohio.

Manifestly an acre of land a mile and a half from a sewer is not benefited by it equally with an acre of land within one or two hundred feet of it. There is no present advantage from the construction of the sewer to the owner of the land at the south end of this narrow strip of territory, while there is to the owner at its north end. Nor will the owner at the soiith ever be benefited by the construction of this particular improvement, until a sewer is built a mile and a half along down Washington boulevard and Independence road, and then he will be assessed for the construction of that sewer.

That this territory in class three should be assessed some part of the cost of the outlet may be conceded, but the owner of land in this territory on Washington boulevard near the outlet can connect with it at once, while the plaintiffs may not live long enough to get any benefit from it.

The geography of the third class territory contradicts the assertion that every acre in it is; equally benefited by the improvement.

It appearing that the assessments levied upon plaintiffs’ lands were not made according to benefits, their collection is enjoined.

Marvin and Niman, JJ., concur.