text:
    AS TO WHETHER A WILL WAS SIGNED AT THE END THEREOF.
    Court of Appeals for Morgan County.
    Branche Clark v. Cora Carpenter, as Executrix of the Will of John L. Carpenter, Deceased, et al.
    Decided, January 31, 1921.

      Wills — Codicil Placed Before Testimonium Clause — Does Not Render the Will Invalid, When.

    Where a will and the codicil thereto are both legally executed, the fact that the codicil was written in the blank space between the- last dispositive item and the testimonium clause does not invalidate the instrument.

      Charles H. Fonts, for plaintiff in error.

      M. E. Danford and L. A. Boons, for defendant in error.
   Houck, J.

The parties here stand in the same position in this court as they stood in the court below.

A paper writing purporting to be the last will and testament of John L. Carpenter, deceased, was filed in the probate court of Morgan County, Ohio, and the same was duly admitted to probate, by said court, as the last will and testament of the said John L. Carpenter, deceased.

Thereafter suit was filed in the common pleas court of Morgan county, by the plaintiff in error here, who also was the plaintiff below, to set aside said will for the reason that it was not signed at the end thereof. The conceded facts are:

On the 25th day of July, 1913, John L. Carpenter duly made and executed his last will and testament, using a printed blank therefor, and leaving between the last dispositive item, being item eight, and the testimonium clause a blank space of about twenty-four inches.

Thereafter, on the 6th day of June, 1916, in said blank space, and immediately after Item Eight of said will, the said John L. Carpenter utilized part of said blank space as follows:

“9. I make this 9th item as a codicil to my last will dated July 25th, A. D. 1913. In case my daughter Lucy Carpenter or my daughter Edna Carpenter should die before they should come into possession of the real estate mentioned in items second and third, then their share shall go to my wife Cora Carpenter if living and still my widow.
“In testimony whereof I hereunto set my hand this 6th day of June, 1916, to item 9 as a codicil to the above will.
“John L. Carpenter.
“The foregoing codicil was signed by him in our presence and at his request and in his presence and in the presence of each other.
“Subscribed our names as attesting witnesses at his home this, sixth day of June, 1916.
' ‘ Witness, R. R. Keirns.
“Witness, Eldon D. Ahle.”

The record discloses the following proceedings in the common pleas court: Jury duly impanneléd and sworn. Thereupon contestees offered in evidence the will and the record and order of probate, of the probate court of Morgan county, and rested.

Thereupon counsel for eontestor stated to the court that he did not intend to offer any evidence; and moved the court to direct the jury to return a verdict that said paper writing is not the last will and testament of John L. Carpenter.

The court overruled the motion, to which counsel for contestor excepted.

Thereupon counsel for contestees moved the court to direct the jury to return a verdict for the defendants.

The court sustained the motion and the jury returned such verdict, finding said paper writing to be the last will and testament of John L. Carpenter. To all of which counsel for the eontestor excepted.

A motion for a new trial being filed was overruled and exceptions taken thereto.

Question: Did the trial judge err to the prejudice of plaintiff in error?

Learned counsel for plaintiff in error in his brief says:

“First. That said purported will shows on its face, as a matter of law, that it is not signed at 'the end thereof. ’ ’
“Second. That if it can not be said to appear from said purported will as a matter of law that it is not signed at the end thereof, then that a question of fact was raised, by the in • strument itself, as to whether or not it was signed at the end thereof and that said question of fact should have been submitted to the jury.”

Counsel for plaintiff in error discussing the question as to the paper writing, now before us, not being signed at the end thereof, says:

“An inspection of this will, in question, discloses that a duly attested and executed codicil is written in the blank space’ originally left between the dispository clause of the will and preceding the testimonium clause. This codicil cuts the will in the middle. The validity of the codicil was not challenged in the common pleas court. The validity of the will only was in question. This codicil separates the will into two parts and this separation changes entirely the relation of one part of the will to the other parts thereof. The insertion of the codicil invalidates the will and causes it not to be signed at the end thereof, as required by law.”

Section 10505, General Code, provides:

“Except nuncupative wills, every last will and testament must be in writing, but may be hand-written or typewritten. Such will must be signed at the end by the party making it * * *."

A valid codicil to a will must be executed with the same legal formalities as a last will and testament.

If this be done and it is written on the same sheet of paper as the will, and between the last dispository clause and testimonium clause, as in the instant case, does it invalidate the will; or can it be properly claimed that by reason of same that it has the effect, in law, that said will is not signed at the end thereof by the testator ?

As a rule the legal effect of a codicil properly executed and referring to and identifying a previous will is to republish the will as modified by the codicil.

A codicil is simply a postscript to a will — a mere after thought of the testator. It is the testator’s addition annexed to, and when properly executed, as in the case at bar, is a part of the testament.

In other words, the codicil is a part of the will, and being the last will and codicil constitute one testamentary disposition:

In Ohio, by statutory provision, the word “will” shall include “codicils.”

It will be conceded that a will, having no element of mutuality, but resting in the discretion of the maker, that he may change it by codicils at pleasure, provided the legal formalities of execution are carried out.

An examination of this will and the codicil thereto clearly shows that both were legally executed..

The will was executed on July 25, 1913, and the codicil on June .6, 1916, reaffirmed and republished said will in the following words: “ I make this 9th item as a codicil to my last will dated July 25, 1913.”

The record discloses that all of the provisions of Sections 10519 and 12085, General Code, have been complied with and therefore, in law, said paper writing is the last will and testament of John L. Carpenter, deceased.

The signature of the testator need not immediately follow the last word of the will. It is required, however, that the signature of the testator shall come after all of the dispositive portions of the will.

An inspection of the will discloses the fact that item 9, known as the codicil, is just as much a dispositive clause of the will as item 8 or any other item of the will.

The signature of the testator appears twice on the paper writing'before us, once after the,testimonium clause in the will and once after the testimonium clause in what is designated the codicil. It therefore follows that it is clearly within the rule herein laid down.

¥e refer counsel to the ease of Mader v. Apple et al, 80 Ohio State, 691. While this case is not directly in point with the ease at bar, yet it materially aided us in reaching the conclusion here announced.

Lastly — ■

Did the trial judge commit prejudicial error in sustaining the motion of eontestees for a directed verdict?

We answer this question in.the negative. We rely upon the rule of law laid down in the following cases:

Wagner v. Ziegler, 14 O. S., page 59; Sears v. Sears, 77 O. S., page 104; Mauk, Trustee, v. Shellabarger et al, 84 O. S., page 461; Clark et al v. McFarland et al, 99 O. S., page 100.

Finding no error in the record, in this case, to the prejudice of the plaintiff in error, the judgment of the common pleas court-must be and hereby is affirmed.

Judgment affirmed.

Shields, J., and Patterson, J., concur.


source: Caselaw Access Project

author: Metcalfe, J.

license: Public Domain

text:
    VILLAGE HELD LIABLE FOR ACCIDENT CAUSED BY HOLE IN STREET.
    Court of Appeals for Mahoning County.
    Village of Struthers v. Falabielo, Administratrix.
    Decided, November 2, 1920.

      Negligence — As Between a Village and an Interurhan Railway Go. — . Verdict May he Set. Aside as to One Joint Tort Feasor and Permitted to Stand as to Another.

    Where two or more persons are severally liable for a tortious act, and an action is brought and verdict rendered against all. it is’not error for the trial judge to grant a new trial as to one and enter judgment as to the others.

      Harrington, DeFord, Heim & 'Huxley; J. H. C. Lyon and Perry Robinson, for plaintiff in error.

      Nicholson &' Warnock, for defendant in error.
    Heard on error.
   Metcalfe, J.

The plaintiff in error was one of the defendants in the case below. The action was brought by Mary Falabielo to recover damages against the village of Struthers and the Mahoning &' Shenango Railway & Light Company for wrongfully causing the death of her husband, Joseph Falabielo.

At the trial of the case in the court of common pleas judgment was rendered against both of the defendants, and both defendants filed motions for a new trial. The trial judge granted the motion of the railway company, but overruled the motion of the village of Struthers, leaving the judgment to stand as against the village.

The errors ■ assigned are that the court erred in the charge before argument, erred in the general charge, and erred in setting aside the verdict of the jury as to defendant the Mahoning & Shenango Railway & Light Company and leaving the judgment stand as to the village.

Upon tlie trial of tlie case a section of tlie franchise^ of defendant the Mahoning & Slienango Railway & Light Company was introduced in evidence. By that section it is proivded that should the roadbed of the company, running on a side of or along a traveled highway, be lower than the traveled part of the highway, so much so that the county commissioners might think it unsafe, a duty was imposed upon the company to build a barrier along the line of the railway upon notice so to do by the county commissioners.

There was evidence offered tending to' show, and perhaps establishing the fact, that at some time several years prior to the accident the railway company had built a fence along this portion of the track, which is conceded to be lower'than the traveled part of the highway, and runs along tlie highway at the place in question, ard had maintained it for some little time, but had afterwards removed it: but there was no direct evidence offered in the case tending to show, and from which it was claimed, that the commissioners had directed the company to build such barrier.

It is claimed upon the part of the plaintiff in error that such evidence tended to show that the commissioners directed the railway company to build a fence. At the request of defendant the trial judge charged the jury before argument:

“If you find that the defendant street railway company was by its franchise required to construct and maintain a barrier at certain places along the right of way, upon being directed so to do by the 'county commissioners, and that thereafter they did so erect and maintain for a considerable time a barrier at the point of the accident, then this would be some evidence from which you could infer that such direction was made: that such duty existed, and if said company was at the time of the aceiden L operating within such franchise, that an obligation then rested upon the street car company to maintain such barrier.”

If there was error in that charge it would be against the railway company and not against the plaintiff in error. After argument, however, the court said to the jury:

“There is no evidence that the commissioners ever designated this place as a place for a barrier.”-

We think the trial judge was right in the first place in saying to the jury that the fact that the barrier was built by the railway company, and the fact that a. condition existed which would call for a barrier at that place, it being lower than the highway, and the fact that the company maintained it for some time, would be evidence which the jury would have a right to consider as bearing on the question whether or not the commissioners had directed the company to build a barrier; but, if there wjas error in the charge after argument, it was error in favor of the defendant railway company. It was not error in our judgment, that this defendant, the village of Struthers, would have a right to complain of.

Now taking these questions in connection with the order of the court granting a new trial to the company, it is urged that error lies in the.fact that a new trial was granted to the railway company and the judgment left standing as to the village We can not agree with that proposition. We do not decide whether the defendants are or are not joint trespassers. The alleged negligence, of the village of Struthers is -that it permitted the hole to exist in the traveled part of the highway, endangering the safety of travelers. The decedent got into that hole, and, upon this record, the jury were justified in finding the village liable. Suit could have been brought against the village, or against the railroad company. Each was responsible for its own act. The village is responsible for allowing the hole in the highway to remain out of repair and the highway thus to become dangerous. If the railway company is responsible, it is responsible for the fact that it failed to maintain a barrier a* that place. The acts of these parties were separate. Separate action could have been brought against both or either.

Where two or more parties have committed a tortious act they may be sued jointly, or they may be sued separately, and if they are sued jointly, and a verdict had against both, it is not reversible error to set aside the verdict as to one and allow it to stand as to the other. The one against whom the verdict is set aside has nothing to complain of, and the one against whom the verdict is rendered is not prejudiced by the setting aside of the verdict against the other.

At common law the verdict could not be set aside as to one of two joint trespassers and allowed to remain against the other, (20 Ruling Case Law, 224 Section 9). But, quoting the same section of the same authority, “The prevailing rule at present is that, inasmuch as tort feasors are jointly and severally liable, and an action may be maintained against one or all at the option of the injured party, a verdict may be set aside as to one and allowed to stand as to another. ”

In Sparrow v. Bromage, 83 Conn., 27 (74 Atl. 1070; 27 L. R. A.(N.S.), 209), it is held:

“The court may set aside a judgment recovered against two in a civil action to recover damages for unlawful imprisonment, as to one of the defendants, and permit it to stand against the other, where it clearly appears that the latter performed acts which would have rendered him liable if sued alone.”

And in the note to the latter case it is said:

“Although some-courts hold to the contrary, the preponderance of authority is to the effect that a verdict may be set aside as to one alleged joint tort feasor and permitted to stand as to others. ’ ’
“A new trial may be granted as to one or more of several joint trespassers, against whom a joint verdict has been returned, and judgment be left standing against the others for the full amount of the verdict.” Loving v. Commonwealth, 103 Ky., 534.

In the light of these authorities there was no prejudicial error in sustaining the motion of the railway company, and the judgment is affirmed.

Fakr and Pollock, JJ., concur.


author: Allread, J.

text:
    LIABILITY OF CITY FOR FALSE ARREST BY POLICE OFFICER.
    Court of Appeals for Franklin County.
    Jay H. Burwell v. The City of Columbus, Ohio.

    Decided September 29, 1920.

      Municipal Corporations — Illegal Act Vy a Policeman — Not a Basis for an Action Against the City.

    A city is not liable for the action of a police officer in making an arrest under a state law.
    W. B. McLeshey, for plaintiff in error.

      Scarlett, Leach & Godown, for defendant in error.

       Motion for an order requiring the Court of Appeals to certify its record in this case overruled by the Supreme Court, December 14, 1920.

   Allread, J.

The action in the court below was brought by Burwell against O’Connor a police officer and the city of Columbus to recover damages for a false arrest.

The city of Columbus interposed a demurrer to the .petition which was sustained and a final judgment rendered in favor .of the city. Error is prosecuted to that ruling and judgment.

Counsel for plaintiff in error in their brief claim as one. ground of liability that the city of Columbus failed to require a bond of the policeman whose illegal act made the basis of the action. We find no averment in the petition on that subject and we can not, therefore, consider what ívould be the result in a case wherein it was averred that the city failed to require a bond of a police officer. We think the authorities, particularly in this state, are to the effect that a city is not liable for the action of a police officer in making an arrest under the state law. A police officer in such case while he holds a commission from the city acts for the state. We have examined the case of Fowler v. City of Cleveland andi are of opinion that the Fonder case is esenlially different from the case under consideration.

Judgment affirmed.

Ferneding and Kunkle, JJ., concur.


author: Houck, J.

text:
    LIABIBITY FOR SON’S NEGLIGENCE IN OPERATING AUTOMOBILE.
    Court of Appeals for Tuscarawas County.
    John Reese v. C. J. Waltz.
    Decided, January 31, 1921.

      Charge of Court — Error in Treating Failure to Specifically Deny Certain Allegations of Negligence as Equivalent to an Admission of Their Truth — Necessity of a Finding as to Proximate Cause.

    1. A charge to a jury should not b.e given over to abstract questions of law, but should set forth the law applicable to the proven facts of the case and direct the attention of the jury to the controlling issues of fact.
    2. Where the defendant, in a negligence case involving a collision of automobiles, has denied “all the material allegations of the peti tion," one of which was that the accident was due to the negligence of the driver of defendant’s car, it is prejudicial error in the charge to the jury io speak in such a way of defendant’s failure to specifically deny the happening of tlm accident, or the resulting damages, or that it was due to the negligence of defendant’s driver, " as to create the impression defendant had 'admitted the truth of these issues.
    3 It is also prejudicial error to charge the jury that a verdict should be returned for the plaintiff, if they found from a preponderance of the evidence that the defendant sanctioned, -permitted and consented to the driving of the car by his son at the time of the happening of the accident, without having first found that the negligence of the said son was the proximate cause of the accident.

      Bowers c& Bowers for plaintiff in error.

      Homer 1. N. Stafford, contra.

   Houck, J.

The parties here stand in the reverse order from where they stood in the common pleas court.

The suit below was for damages sought to be recovered from John Reese, by C. J. Waltz, on account of a -collision between automobiles owned by said parties. The plaintiff alleged carelessness and negligence on the part of the driver of the Reese car, to-wit: Vernon Reese, a son of the said John Reese. The' petition alleged,:

<:That at the time of the collision between said automobiles that the defendant’s automobile was being managed, operated and under tlie control of a son of the defendant, Vernon Reese, a member of the family of the defendant and with full knowledge and consent of said defendant and as his agent. All of which damage, as aforesaid, was caused wholly as a result of the carelessness and negligence on the part o f said Vernon Reese, the son and agent of said John Reese.”

The defendant answered as follows:

“Admits that the defendant on the 24th day of January, 1919, was the owner of a certain eight cylinder passenger touring Appuerson automobile.
“Admits that at said time, defendant’s son, Vernon Reese, was operating the said ear upon the street in the city of Uhrichsville, but avers that said Vernon Reese in the operation of said car was not the ageiit of the defendant, but that he had wrongfully taken said machine from the barn of the defendant, and without the knowledge and consent of said defendant, and that he was operating the same contrary to defendant’s wishes.
“Defendant further answering denies each, all and every other allegation in the petition of plaintiff, not hereinbefore specifically admitted to be true.”

The cause was submitted to a jury and a verdict returned for the plaintiff. A motion for a new trial was filed, heard and overruled, and a judgment entered on the verdict.

Error is prosecuted to this court seeking a reversal of the judgment entered in the lower court.

We have examined all of the alleged errors set out in the petition in error, but we do not deem it necessary to refer to but one in this opinion, namely: Did the trial judge err in his general charge to the jury ?

On page 119, as found in the court’s charge to the jury, he said:—

“Now the defendant does not specifically deny the damages or the happening of the accident; does not' specifically deny that it happened by the negligence of the driver of the defendant’s car.”

This was in substance and effect telling the jury that the defendant admitted that there was an accident and that it was caused by the negligence of the driver of the defendant’s ear.

The defendant in his answer made a general denial of all of the material allegations of the petition of plaintiff, one of which was that the driver of the car was not negligent in its operation.

The question of negligence on the part of the operator of the ear being denied by defendant, it was one of the questions put in issue in the trial of the case, and devolved upon the plaintiff to establish by proper evidence.

We find and hold this part of the charge not only misleading but highly prejudicial and erroneous to the rights of plaintiff in error.

As appears at the bottom of page 119, the court charged the jury:—

“If you find that he — the son — was operating that car with the consent and knowledge of the defendant, his father, I charge you that the recovery would have to be for the plaintiff.”

On page 122 the court said:—

“Now if the testimony and circumstantial evidence here be sufficient to convince you, by a preponderance of the evidence that this father did saction, did permit, did let, I won’t say approve but did consent and let that boy drive this car, on this partieular'oecasion, then your verdict should be for the plaintiff.”

It will be observed that this instruction directed the jury to find for the plaintiff, if it found that the defendant approved and permitted his son to operate the automobile in question at the time of the accident.

One of the real questions at issue and necessary to be established was as to the proximate cause of the damage to the automobile of the plaintiff below, and before a verdict in favor of the plaintiff could be legally had, the evidence must, show that the son was not only authorized to operate said car, at said time, but that the damage complained of was caused by the negligence of the son of plaintiff. •

This instruction fails to show that the latter question of fact was given, in charge, to the jury.

It follows that the trial judge erred to the prejudice of plaintiff in error in this respect.

We have read with care the charge, as given to the jury by the judge presiding at the trial, and there is no instruetion therein to the jury that before the plaintiff ean recover that it must find, by a preponderance of the evidence, that the proximate cause of the damage to the automobile in question was the negligence of Vernon Reese, the son of the defendant.

We think that it is a settled rule of law that the charge of a trial judge to a jury should not be as to abstract propositions of law. It must embody the law applicable to the proven facts, and the instruction to the jury should be of such a nature as to direct its attention to the controlling issues of fact in the ease.' This is essential and necessary in order that the verdict be based upon the real issues to be determined in each ease.

“A charge is erroneous which permits the plaintiff to recover on a preponderance of the evidence, regardless of his own possible negligence, and without the negligence of the defendant being the direct or proximate cause.” Traction Company v. Overschmid, 12 C. C. (N.S.), 262.

“That the general rule is, that where the parties are mutually in fault, or in other words, where negligence of the same nature, in each party, has co-operated’to produce the injury, the party sustaining the loss is without remedy; but that this, rule is subject to the following qualifications:
1. The injured party, although in fault to some extent, at the same time may, notwithstanding this, be entitled to reparation in damages for an injury, which could not have been avoided by ordinary care on his part.
2. .When the negligence of the defendant in a suit upon such ground of action is the proximate cause of the injury, but that of the plaintiff only remote, consisting of some act or omission, not occurring at the time of the injury, the action of reparation is maintainable.” Kershacker v. C. C. & C. R. R. Co., 3 Ohio State, p. 196.

It follows, from what we have already said,.that the common pleas court erred in its charge to the jury, and the judgment of that court, in this ease, is reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

Shields, J., and Patterson, «7., concur.


author: Richards, J.

text:
    RELIEF AGAINST FORFEITURE FOR NON-PAYMENT OF RENT.
    Judge Hughes of the Third District sitting in place of Judge Kinkade.
    Court of Appeals for Lucas County.
    Taber v. Bellman et al.
    Decided June 30, 1919.

      Forfaiture — Relief Against Will be Granted, When — Conditions of Forfeiture- for Non-Payment of Rent Intended Merely as Security--Injunction Against Issuance of Writ of Restitution.

    A court of equity may relieve against forfeit lire of a lease for nonpayment of rent when equity will be subserved thereby, and in granting such relief may enjoin the issuance and service of a writ of restitution in an action in forcible entry and detainer.

      Marshall ds Fraser and Evan M. Chase, for the plaintiff.

      Harry Levison for the defendants.
    Heard on appeal.
   Richards, J.

. This action was brought in the court of common pleas for the purpose of restraining the issuance and service of a writ of restitution in a forcible detainer case on a judgment rendered in the municipal court. The case has been submitted to this court upon an agreed statement of facts. Prom -this statement of facts it appears that the premises in question, which are located in the city of Toledo, were leased by The Toledo Land Company to the plaintiff by written lease dated October 1, 1917, for a term of three years, at a rental of $60 per month, payable on the first day of each month in advance, with the privilege of renewal for an additional period of two years at a rental of $70 per month.

The defendants purchased the premises in controversy on July 29, 1918, and since that date the rent has been paid by the plaintiff directly to them. The payments of rent, however, were not made at the precise time they fell due, each payment being made from two to four weeks after maturity, and after one or more demands had been made on the plaintiff that the same should be paid on January 23, 1919, the defendants notified the plaintiff that the rent was payable on the first of each month in advance, that he had been neglectful in making payments, and that they did not intend to submit to delay in the future. The rent due February 1, 1919, not being paid, the defendants served on the plaintiff, on February 11, a--written notice to vacate the premises, and on February 12, the plaintiff tendered payment of the rent, which was refused, and thereafter an action in forcible entry and detainer was brought in the municipal court, which resulted in a judgment in favor of the owners for the possession of the premises. The action is brought for the purpose of obtaining a decree in equity relieving against forfeiture of the lease for non-payment of the rent, and to secure an injunction against enforcing the judgment in forcible entry, and detainer. The lease contains a provision that if the party of the second part should fail to pay the rent at the time the same should become due and payable it should be lawful for the owner to re-enter and take possession of the premises; and a further provision waiving demand of payment, of the rent.

One of the well-known principles of equity jurisprudence is that which empowers a court of equity to relieve against forfeiture, and relief against forfeiture for non-payment of rent is a matter frequently considered in chancery. The leading textbooks on equity jurisprudence announce the principles in substantially the same terms. The rule is nowhere stated with more accuracy and terseness than in Pomerory’s Equity Jurisprudence (4 Ed.), Section 453, where it is given in the following language:

“Forfeiture arising from covenants in leases. — "Where .a lease contains a condition that the lessor may re-enter and put an end to the .lessee’s estate, or even that the lease shall be void, upon the lessee’s failure to pay the rent at the time specified, it is well settled that a court of equity will relieve the lessee and set aside a forfeiture incurred by his breach of the condition, whether the lessor has or has not entered and dispossessed the tenant. This rule is based upon the notion that such condition and forfeiture are intended merely as a security for the payment of money.”

Anri to the same effect is 3 Story’s Equity Jurisprudence (14 Ed.), Section 1728.

The principles thus announced have been followed and applied under innumerable circumstances in actions between landlord and tenant, and the books are full of adjudged eases illustrating the application of the rule. Counsel for the defendants however cites the case of Fort Orange Barbering Co. v. New Haven Hotel Co., 92 Conn., 144 (101 Atl., 505). A cursory-beading of this authority would seem to indicate that the general rule relieving against forfeitures, would not be applied in a ease where there had been a judgment of restitution in proceedings in forcible entry and detainer. But a careful examination 'of the case shows that the decision is based on the peculiar language of the Connecticut statute, by the terms of which a judgment of a justice of the peace in a forcible detainer action has the same force and effect as a common-law judgment in other actions and is therefore conclusive against the existence of an alleged waiver of forfeiture.

The Ohio statute, See. 10450, G. C., provides that a judgment in forcible entry and detainer shall not be a bar to a later action brought by either party. This section was construed in Foster et al v. Ellison 12 C.C.(N.S.), 399, and held to constitute an exception to the general rule that equity will not enjoin the enforcement of a judgment where a defense at law was available. See also Raitz & Co. v. Dow, 10 C.C.(I.S.), 249, a decision of the circuit court in this county.

In view of our statute and the decisions thereunder, the Connecticut authority .can not be regarded as controlling in Ohio. The rights of the parties must be determined under the general principles of equity jurisprudence, and with the fact in view that the municipal court was without authority to relieve against the forfeiture.

The primary purpose of the parties to the lease was to secure the payment of the rent, and the provision for a forfeiture of the premises in the event of non-payment in accordance with the tenor of the lease must be construed as inserted for the purpose of enforcing such payment.

From what has been said it is apparent that a decree must be rendered for the plaintiff; but this decree should be rendered cn equitable terms. The decree will be conditioned on the payment of all arrears of rent, with interest, and the costs in the forcible detainer ease in the municipal court.

Chittenden and Hughes, JJ., concur.


author: Washburn, J.

text:
    NUISANCE RESULTING FROM HOT WATER PIPE RUNNING UNDER SIDEWALK.
    Court of Appeals for Cuyahoga County.
    Bolo v. City of Cleveland.
    Decided, May 28. 1920.

      Liability for Injury from Steam Pipe — Running from Boiler of Abutting Lot Owner Under Sidewalk to Sewer — Primary and Secondary Liability of Abutter and Municipality — Recovery from Property Owner Bars Action Against the Gity.

    1. Where the owner of property abutting upon a city street has a pipe running underground from a boiler on his premises to the sewer in the street, and there is a leak in such pipe under the sidewalk causing the sub-soil to be washed away, leaving a pool of hot water, a pedestrian who steps off the sidewalk onto a narrow strip of land about a foot wide between the walk and fence which is the boundary line of the abutting lot, and. breaks through the crust of earth over the pool and is scalded, can not recover damages from the city for such injury where there is no evidence tending to show that the city had or should have had notice of the condition of the subsoil, or the existence of the hot water, and there is nothing to lead a reasonable person to suspect that there might be hot water beneath the surface which might cause injury to pedestrians.
    2. In such case the abutting property owner who' actively created the nuisance is primarily liable, and a recovery against him is a bar to an action against the city for the same injury. The city’s liability, if liable at all, is statutory.

      Mathews, Bell & Whisper, for plaintiff in error.

      James Cassidy, assistant city law director,- for defendant in error.
    Heard on error.
   Washburn, J.

The record discloses that Frank Bello sued the city of Cleveland to recover damages for personal injury sustained by him when he stepped off the sidewalk onto a narrow strip of land about one foot in width between the walk and the fence, which was one the property line of the adjoining lot., which was used for manufacturing purposes.

Tlie manufacturing company had a pipe running underground from its boiler and connecting with the sewer in the street; there was a leak in the pipe under the sidewalk, and the hot water escaped, which caused a part of the earth near the curb and twelve nr more feet from the place of the accident, to settle down, leaving a hole; the city being notified of the hole,- but not knowing the cause of it, filled it up; a day or so later, and before any other eave-in appeared, the plaintiff, while walking along the sidewalk, stepped onto the ground on the opposite side of the walk and broke through into a hollow space containing hot water, and steam, and his leg was scalded. The cause of the cave-in was discovered after the accident.

In the petition plaintiff claimed that he fell into an open excavation-filled with boiling water, and that the city had notice of the existence of the same and negligently allowed it to exist in the street, wholly unguarded and unmarked. Plaintiff failed to prove these allegations, but insists that the city is liable because it had sufficient notice to put it upon inquiry as to the condition underground, and that it is, therefore, charged with notiee that the subsoil had been washed away leaving a thing crust of earth over such pool of scalding water, because a thorough investigation would have revealed that fact.

The city denied all notice or knowledge of such situation, or that it was charged with notiee, or that it was negligent. As a second defense, the city pleaded that all of the conditions complained of by plaintiff were created and maintained by the owners of said manufacturing plant, and that plaintiff had sued the owners of said manufacturing plant for the same injuries, basing said suit upon the same, conditions and that said suit was compromised and settled for $2,450, which was paid to plaintiff by said manufacturing company in full settlement of plaintiff's claim against said company. These facts being established when the plaintiff rested his ease; the court below arrested the testimony from the jury and rendered judgment for the defendant.

In doing so, we do not find that the trial court committed error.

As we view it, there was no evidence tending to show that the city had, or should have had, notice of the condition under ground beneath the one foot space between the walk and fence, and especially of the existence or presence of hot water at said place. There were no facts proven which would warrant the jury in determining that the city should have anticipated that such or any similar accident would or could have happened at said place. The plaintiff stepped in no hole, for none was there. Whatever of danger that was, was hidden below the ground. The real cause of the injury was the hot water, and we see nothing in the evidence which can properly be said to charge the city with notice of its existence. Moreover, the first notice any one, had of any defect in the vicinity was only a few days before the accident; that was remedied at once, and even if the cirequistances were such that the city should have anticipated that other holes might appear, there was nothing which would lead a reasonable person to even suspect that there might be hot water unaer the surface, into which pedestrians might fall and be scalded.

This is our view, but if it is possible that the evidence presented a question which the court should have submitted to the jury the record discloses that the court was justified in arresting the ease from the jury on another ground.

The active wrong or negligence which produced the situation was that of the manufacturing company; it caused the washing away of the subsoil and filled the space with hot water; the city was in no 'sense responsible for that condition, and was liable, if at all, only because the statute made it liable to the injured party for its omission of duty to protect the public against the consequences of the overt acts of the manufacturing company. But the party primarily liable was the manufacturing company which actively created a nuisance, and if the city had been sued in the first instance, and recovery had against it, it could in turn recover from the perpetrator of the wrong, the manufacturing company. Morris v. Woodburn, 57 Ohio St., 330.

In that situation if the injured party sues the party primarily responsible for his injury, and receives satisfaction from such party, he can not then sue the city for the same injury; he can sue either, at his election, but he can not sue them jointly. Mineral City v. Gilbow, 81 Ohio St., 263.

Where there is but one wrong and one injury, there can be but one satisfaction ;it would be different if both wereaetive and independent wrongdoers, or if there were concerted action, but where one is by statute simply made liable for the wrongful acts of another, and that other responds in damages for his wrong tc the injured party, there can be no further recovery.

Plaintiff’s suit against the manufacturing company, his subsequent settlement, and the full satisfaction of his claim, are a complete bar to this action.

Dunlap and Vickery, J.J., concur.


author: Cushing, J.

text:
    OPERATION OF FACTORY IN RESIDENTIAL DISTRICT.
    Court of Appeals for Hamilton County.
    Stothfang v. Cincinnati Aluminum Castings Company.
    Decided, May 10, 1920.

      Nuisance — Injunction Against Operation of a Factory on the Border Between a Business and Residential District will he Refused, When — But the Court Will Retain the Case With the ~View> of Minimising the Inconvenience.

    1. Injunction will not be granted against a corporation requiring it to cease operation of its plant, upon the ground that noises, vibrations, gases and fumes emanating therefrom constitute a nuisance in an exclusively residential neighborhood and result in damage to plaintiff’s personal and property rights, where it appears that at the time plaintiff purchased her residence the locality was, or would soon be on the line of demarkation between a business or manufacturing district and a residential section
    2. In an action to enjoin the operation of a factory as a nuisance in a residential district, a court of equity may refuse the injunction prayed for, and retain the case for the purpose of endeavoring to reduce or minimize the inconvenience to the neighborhood.

      Littlefor'd, <& Ballard, and Joseph T. Carney, for plaintiff.

      8. 1. Lipp; B. L. lleidingsfeld and Harry M. Hojfheimer.. for defendant.

      Heard on appeal.
   Cushing, J.

Plaintiff brought an action in the court of common pleas to restrain the defendant from causing* or permitting noises, vibrations, gases and fumes from emanating from its factory.

She charged in her petition that in March, 1907, she purchased the property now occupied by her as a residence, Lot No. 79 of Cleneay’s Subdivision; that at the time she purchased the property and erected her house there was a factory building on the north side of Lexington avenue between her property and Montgomery pike, the east end' of which factory was within fifty feet of her residence, and that said factory had been in that location for a number of years prior to that date; that in the fall of 1918 defendant occupied said building and used it to make castings of various metals; that in the operation of its business it uses machinery which causes continual loud noises; that as a result her house vibrates, the windows are broken, and the plastering is loosened; that said vibrations have injured plaintiff's property; that the gases and vapors penetrate said dwelling, thereby injuring the health, comfort and well-being of plaintiff .and her family; and that the noises, vibrations, gases and fumes are a nuisance and injure her in her property rights, for which she has not adequate remedy at law. She alleged that her house is situated in an exclusively residential neighborhood and that the factory in question is the only exception to the rule.

The defendant denied that the house is situated in an exclusively residential district, and denied specifically, and in detail, all the other allegations of the petition. It pleaded affirmatively that its factory is situated near the main line of the N. & W. railway, which was constructed long prior to 1907, and that that part of the city of Norwood is used as a business and manufacturing district of various kinds; that the said railroal runs near the residence of plaintiff and operates many trains night and day; and that the trains cause noises, smoke, vibrations and inconveniences. Defendant further pleaded that its business is lawful- and is being conducted along the most modern and best-known methods, and asks that it go hence without day.

Tlie facts developed by tbe record are that the plaintiff’s property is situated about two hundred feet north of the N. & W. railway company’s main track and that between this main track and plaintiff’s property there are four side tracks ;that a short distance east and south of plaintiff’s property is a freight depot of the railroad company; that about two hundred feet west of her property is Montgomery pike, a wide thoroughfare, paved with granite, over which there is a constant heavy traffic by trucks, wagons and automobiles, and that at least five lines of street cars pass the corner of Montgomery pike and Lexington avenue; that about twelve hundred feet west of this property is the C. L. & N. railroad and yards; that the C. L. & N. is a double-track railroad and at the point nearest the property of plaintiff there are six side tracks, one of them coming within between seven and eight hundred feet of plaintiff’s property; that within a radius of one thousand to twelv hundred feet there are at least thirty business and manufacturing plants, varying from a grocery to the large structural steel plant of Sehreiber & Sons Co., and including the Ault & Wiborg Varnish' Co. plant, and the Lewin Lumber Co. plant to the east.

Counsel for plaintiff. urge that the section of the territory at and near the intersection of Montgomery road and the N. & W railroad is not suitable for business or manufacturing purposes, that it is exclusively' a residential district, with the exception of this one factory.

The court below, in discussing the question of residential dis'trict, says that there is no other business plant located on the property between Lexington avenue and the road east of Montgomery road except the Palm Brothers Company plant several blocks away. The fact is that next north of this factory is a glue plant. ¡

In argument, counsel for plaintiff below were asked what they considered a business district, in view of the fact that the railroad was located two hundred feet away. The answer was that if the factory was located on the south side of Lexington avenue, it would bewithin the business district.

The allegation of the petition that the district is exclusively’' residential was not sustained by the proof. This, no doubt, is one of those unfortunate eases that falls within the rule state by Judge Davis in the opinion of the court in Ellen v. Koehler, 68 Ohio St., 51, regarding one who becomes a resident of a trading or manufacturing neighborhood or remains while in the mareh of events a residence district gradually becomes a trading or manufacturing neighborhood. The surrounding territory, the location of the railroads, its accessibility by street cars, its shipping facilities and the lay of the land all tend to the conclusion that the district here in question is and will more and more become- a manufacturing and trading neighborhood. The rule applied by the court below as to neighborhood was too narrow. Neighborhood defined by Webster is “a district considered ivith reference to a given characteristic.” This could not mean a limit of cross a street or within a block. It means taking the territory within the locality of the railroad for an uncertain distance on either side. This is or is fast becoming a business section.

The plaintiff purchased this property and built her house in view of the existence of this factory and others in the neighbor hood, and from the facts and circumstances developed in the ease it is clear that the property in question is not situated in an exclusively residential district. It is on the border line, if not already within the march of business.

In view of this finding the question presented is as to whether or not the annoyances, discomforts and injuries are fairly incidental to the reasonable and proper conduct of such business in such neighborhood. Discomforts or injuries beyond that would be actionable.

From the record and the inspection of the plant, made at the request of counsel for both parties, it is certain that there ara some annoyances created by its operation. There arises a light-colored vapor from the furnaces. How far this extends from the building is uncertain. Neither the appearance of the building itself, the fences, trees, grass nor residences within fifty to one hundred feet, or beyond, show any signs of a settlement from these furnaces. Whether the odors in the neighborhood come from the factory, the glue factory, the Ault & Wiborg building, or one of the other numerous plants, can not be determined either from the evidence or the inspection.

There arises from the operation of the plant, a low, rumbling sound. This seems to be constant* while the factory is in operation. It can not be observed when either a railroad train or a street car is passing, the noise from either being greater than it. This in a measure accounts for the absence of any witnesses in the case except those residing immediately around and close to the factory. The testimony as to the fumes, gases and noises emanating from the building is in direct conflict, except as to the low rumbling sound. The rule in such cases is that the nuisances must be established by clear and convincing proof to authorize injunctive relief. Bell v. Pollak Steel Co., 19 N.P.N.S.), 531; Rouse & Smith v. Martin & Flowers, 75 Ala. 510. and Goodall v. Crofton. 33 Ohio St., 271.

"While we adhere to the rule stated in Edwards v. Allouez Mining Co.. 38 Mich., 46, and followed in the unreported ease of Martin v. Farrin Lumber Co., it seems but just that some effori at relief should be made by the construction of stacks to cany the smoke and fumes above the surrounding building, and that the reduction of the continued rumbling sound should be attempted.

The record further discloses that the character of the manufacture at this time is different from what it was when the action was brought and tried in the court below; that then, the plant was making brass containers for navy shells; that it does not use as much zinc as it did at that time; and that it has put in dust arresters and installed non-crucible furnaces, a Berkshire pneumatic molding machine and-gas governors and has thus reduced, the low rumble appreciably from what it was at the time of the bringing of this action. It is claimed by counsel for the company that the installation of a gas governor has so reduced the rumble that it can not be said to cause substantial injury. This may be the fact, but it does not appear from the record.

The question of noise and the nuisance arising therefrom should always be considered in connection with the locality, the nature of the trade, the use of the property producing it, the time during which it exists, and its intensity and effect. 2 Wood on, Nuisance (3 ed.), Sections 638, 639.

There appears to use but one important factor to be considered exists during the time the factory is in operation, and, while 5t, is in this connection and that is the duration of its existence. Its not intense, its duration is such that in order to obviate the effect the intensity should be reduced.

In the case of Bliss v. Anaconda Copper Mining Co., 167 Fed. Rep., 342, the court held that where it was established that injury had resulted to farms in the valley within the smoke zone, but that it had been lessened in extent by reconstruction of the plant so as hot to render the farming unprofitable, an injunction restraining the operation of the smelter would not be granted, but that if an equitable adjustment of the rights of the parties could be made the ease would be retained for that purpose. This case is cited for the purpose of showing the court’s power to refuse an injunction and retain the case for the purpose of lessening, if can be the noise and fumes incident to the operation of the factory.

The conclusion is'that the location of plaintiff’s house'is not in an exclusively residential section; that it is in or on the line of demarcation between a,business and manufacturing district and a residential section; that some annoyance is caused from’ the operation of the factory; and that while the factory is equipped and operated with the most approved appliances known to the trade the inconvenience caused by its operation" should be reduced to the minimum; that an injunction will be refused and the case retained and the company given a reasonable time within which to arrange its factory and business so as to reduce the inconvenience to the neighborhood caused by its operation.

Our present inclination is that eight to ten months would be a reasonable time within which to experiment.

Shohl and Hamilton, JJ., concur.


author: Shields, J.

text:
    DEEDS, CONTAINING RESERVATIONS, HELD FOR DELIVERY AFTER DEATH.
    Court of Appeals for Coshocton County.
    Blanch Johnson et al v. E. C. Darling et al.

    Decided, January 14, 1921.

      Distribution of Lands — By Deeds to Take Effect after Death of the-Grantor — Not Rendered Inoperative by Reservation of Life Estate —Such Deeds After Delivery Become Executed Contracts — Intent of the Grantor, not the Words Used, Govern

    Where a land owner executed deeds convoying land to each of his children and placed said deeds in the hands of an attorney to he delivered and become effective at his (the grantor’s) death, and the evidence establishes that the deeds were executed at a time when the grantor was under no disability or inducement and ho prejudice resulted to his creditors, the manifest intention of the grantor that these lands should pass to his children as provided in said deeds does not permit of their being declared inoperative because of a reservation contained in each of said deeds, to-wit, “This conveyance is intended by the grantor, James P. Darling, to lay in escrow until the death of the said grantor, and it is net intended to he of any force or effect in the lifetime of the said grantor, but is intended to he of full force and effect immediatelj upon the death of setid grantor.”

      G. 11. Bell and T. IT. Wheeler, for plaintiffs.

      Merrell, Shepler tf: Bvrhleir, and L. N. Btaats, contra.

      Motion to require the Court of Appeals to certify iis record in th:s case overruled by the Supreme Court, May IQ, 1921,

   Shields, J.

This case is before this court on appeal from the .-judgment of the court oL! common pleas of Coshocton county, and involves the title to certain real estate which the plaintiffs seek to hive partitioned.

The plaintiffs set up that as children and heirs at. law of James P. Darling, deceased, they are each seined in fee simple of a one fourth interest in certain real estate described in their amended petition. That the defendant E. C. Darling, a son of the said James P. Darling, has a one-fourth interest therein, and that he has received the rents and profits arising from said real estate since June 9, 1918, when the said James P. Darling died, leaving no widow surviving him, and leaving sufficient personal property to pay all debts and claims aganst his estate.

The said E. C. Darling and the defendant J. Floyd Moore claim an interest in said real estate adverse and hostile to the rights and estate of the plaintiffs therein.

Partition of said real estate is prayed for, that the said E. C. Darling be required to account for said rents and profits, that the claims of the defendants E. C. Darling and J. Floyd Moore’s interests adverse to plaintiffs interests in said real estate may be declared null and void, and that the plaintiff’s title be quieted against the same.

The defendant E. C. Darling in a separate answer admits that he is a son of the said James P. Darling, deceased, and that said decedent left no widow surviving him, and that he left no debus that his personal estate will not fully pay, and be denies all the other allegations in the paintiff’s said petition.

In a cross petition he says that he is the owner in fee simple and in actual possession of tracts numbered 1 and 3 of the real estate described in the plaintiff’s said petition, and he denies that the plaintiff’s, or either of them, have any interest in or title to said numbered tracts, or cither of them, or that this defendant’s title thereto is a cloud upon any real estate owned by the plantiffs, or either of them, and he says that said claim of the plaintiffs in this respect is unfounded and wholly untrue, and he asks that said claim be adjudged null and void and that this defendant’s title thereto be quieted.

A general denial of the allegations of the defendant’s answer and cross-petition is made by the plaintiffs.

The ease whs heard on a transcript of the evidence taken upon the trial in the court below, and the facts developed upon that trial were substantially as follows: James P. Darling at the time of his death left surviving him four children, the plaintiffs and the defendant, E. C. Darling; that he then owned the real estate described in the plaintiff’s amended petition: that prior ' to his death and on February 25th, 1916. he executed four several deeds,’ one to each of his said four children, conveying to each of them certain parts of the real estate described in said amended petition; that said deeds were on said day executed and delivered by him to L. N. Staats, an attorney at Coshocton, Ohio, to he held by him until the death of said grantor when h*(Staats) was instructed and directed by the said James P. Darling, deceased, to deliver said deeds to each of the grantees named therein; that on the same day of the execution and delivery of said deeds, the said James P. Darling also executed a- power of attorney to the said L. N. Staats, containing further and specific instructions relative to said deeds; that upon the death of the said James P. Darling, the said L. N. Staats delivered said deeds to each of the grantees named therein, agreeably to said instructions and directions, which said deeds were hv each of said grantees subsequently entered- of record in the recorder’s office in said Coshocton county.

On -behalf of the plaintiffs it was claimed that the deeds men • tioned are not valid but inoperative as such for various reasons stated in oral argument and in the brief of counsel.

Contracts as related to deeds are to be interpreted by the same rules of law applicable to other contracts,, namely, to ascertain and carry out the intention of the grantor. Technical rules of construction are not favored in this class of eases, and as held -by the courts, they are not-to he so applied as to defeat the intention of the grantor, the controlling object being “to ascertain and give effect to the intention, of the parties as gathered from the entire instrument, together with the surrounding circumstances, unless such intention is in conflict with some unbending canon of contraction or settled rule of property, or is repugnant to the terms of the grant. Furthermore, the primary or dominant intent must prevail over a secondary intent, where the two are inconsistent. Wherefore if two clauses are inconsistent they must he construed so as to give effect to the intention of the parties as collected from the whole instrument.” With this statement of the law before us, illustrating as it does the necessity of first ascertaining the intention of the contracting parties, we think it sufficiently appears from an examination of said transcript of evidence that the said James P. Darling undertook to divide his real estate between his said children during his lifetime by the execution of deeds to them of certain parts thereof, that he deposited them with a third party to be delivered to the grantee named therein, upon his death, and that they were so delivered and subsequently entered of record by said grantees. Nothing appears that said decedent was under any disability, nor that the rights of any creditors were prejudiced, nor is any claim made that his act was induced or influenced by any word or action of either of said grantees.

As owner of this real estate it is not questioned but that the said James P. Darling had a right to dispose of it as he saw fit, and in the manner he saw fit, provided of course that the same wfeis lawfully done. Here, 'as stated, his plan of distributing and dividing his propetry was laid before the said L. N. Staats who prepared and became the custodian of the deeds, at the grantor’s request, for the purpose stated. But it is contended on behalf of the plaintiifs, admitting that said deeds were executed at the time and for the purpose stated and were delivered by the custodian thereof after the death of the said James P. Darling to the grantees therein named, that said deeds were not his deeds and “were not deposited with the purpose and intent of effecting a present conveyance, “Looking to the authorities bearing upon this quuestion, in this State, among others, we find, it held in Mitchell v. Ryan, 3 O. S., 377, that—

“No precise form of words is requisite to a delivery to a third person for the use of the grantee. It is sufficient that such intention on the part of the grantor appears from his declaration and the circumstances of the case.”

And in Ball v. Foreman, 37 O. S., 132, it is held that:

“Where a grantor in a deed delivers the same to a third person as his deed, to be delivered to the grantee at the death of the grantor, and the deed is accordingly delivered to the grantee upon the grantor’s death, the title passes to the grantee as of the date of the first delivery.”

And in Crooks v. Crooks, 34 O. S., 610, it is held that:

“"Where the grantor delivers his deed to a third person to be delivered by him to the grantee at the death of the grantor, without reserving to himself any control over the instrument, and such deed is delivered accordingly to the grantee, 'the title passes to the grantee upon such last delivery, and by relation, the deed takes effect as of the date of the first delivery. ’ ’

And the same doctrine was applied and upheld in the case of Patrick et al v. Parrott et al, 92 O. S., 184, thus showing this mode of distribution of one’s property in his lifetime by the execution of a deed placed in the custody of a third person, (with no control or power of revocation reserved over said deed) with directions to be delivered after the grantor’s death to the grantee named therein, and such deed is so delivered, is a lawful mode of distribution.

But it was argued on behalf of the plaintiffs that said deeds passed no present title to the grantees named therein and were ineffectual to convey said real estate described therein during 1he lifetime of the grantor, because of a reservation in each,' of said deeds, a copy of which is as follows:

“This conveyance is intended by the said grantor, James P. Darling, to lay in escrow until the death of the said grantor, and is not intended to be of any force or effect in.the lifetime of the said grantor, but is intended to be of full force and effect immediately upon the death of the said grantor.”

Taking up the deed made to the defendant, E. C. Darling, which appears to have been the moving cause of this litigation, in the granting clause it recites—

“that James Darling, widower, unmarried, in consideration of his love and affection for his son Everett C. Darling and one dollar to him paid by the said Everett 0. Darling, the receipt whereof is hereby acknowledged, does hereby grant, bargain, sell and convey to the said Everett 0. Darling, his heirs and assigns the fallowing described premises (then describing them), and all the estate, title and interest in and to the said premises, together with all the privileges and appurtenances to the same belonging.”

The habendum clause recites the usual covenants of warranty, and then recites the reservation heretofore referred to when said deed shall take effect. It appears that the deed was signed by the grantor in the presence of witnesses and acknowledged as required by law. While the language used in the reservation referred to (and which appears in all of said deeds) seems to be out of harmony and inconsistent with the recitals in the granting clause, but does it defeat what appears to have been the fixed purpose and object of the grantor in executing them?' That he intended to convey title to his children by deeds executed by him at that time we think clearly appears from the testimony of Mr. Staats, the custodian of said deeds, and that he supposed and believed that he had done so also appears from the testimony of various witnesses, pointing out as he did the property so conveyed to them. This intention also harmonizes with the recital in the granting clause in said deeds. As already stated, the insertion in the deeds of the reservation referred to .seems to be repugnant to the grant, but where, as in this instance, there is at least a seeming repugnance to the granting clause, does not the granting clause control? Further referring to the ease of Ball v. Foreman, cited, it is said in that case that

‘ ‘ Conceding the usual effect of the habendum clause in a deed to be, to 'define the extent of the ownership in the thing granted, to be held and enjoyed by the grantee, yet it is not an essentia! part of a deed, and its effect may not only be qualified- and restrained by other parts of the deed, but where it is repugnant to the grant, it has no validity or effect whatever. Tt also yields to the manifest intent and terms of the grant, ’ ’ citing Flagg v. Eames, 40 Vt., 16.
“In Jackson v. Meyers, 3rd Johns, 395, Chancellor Kent states the rule as follows:
“ 'The intent, when apparent and not repugnant to any rule of law, will control technical terms, for the intent, not the words, is the essence of every agreement. In the exposition of deeds, the construction must be upon the view and comparison of the whole instrument, and with an endeavor to give every part of it meaning and effect.’
“In Shepard”s Touchstone, 106, it is said:
“ ‘ The habendum, as all other parts of the deed, for the most part, shall be taken most strongly against the grantor, and most in advantage of the grantee, yet so as withal it shall be construed as near the intent of the parties as may be.’ ”

In their brief counsel.for defendants cite us to the case of Smalley v. Smalley reported in 24 C. C. (N. S.), 353, 27 Ohio Circuits, 112, which, involved the construction of a deed placed in the keeping of a third party to be delivered after the death of the grantor, wherein was added to and ás a part of the grant • ing clause the following:

“that said grantor reserves full control and use of said premises during his natural life, with full powbr to sell and convey said premises, the same as if this deed had not been executed, but in ease that said grantor becomes deceased, then the title to said land to rest absolutely in said grantees, their heirs and assigns.”

Except that the grantor reserved the right to sell and convey the premises described, the ease cited is not unlike the case at bar, and in that ease the court upheld the deed as valid, rejecting the provisions thereof repugnant to the grant.

While as indicated by the authorities that the intention of the grantor is the polar star by which courts must be guided in ascertaining the legal effect of the act of the grantor, as it applies to the execution of these deeds, to render such transfer effectual, it must also appear that the grantor thereby divested himself of the control of the deeds at the time of their delivery to the said custodian. As stated in Vol. 1, Devlin on Real Estate, Sec. 325:

“An essential characteristic and indispensable feature of every delivery, whether absolute or conditional, is that there must be a parting with the possession, and of the power and control over the deed by the grantor for the benefit of the grantee at the time of delivery.”

That while the holding of the courts in all jurisdictions on this question of irrevocably divesting one’s self of all control over the deed during the lifetime of the grantor is not uniform, we think it is settled by the weight of authority that such relinquishment of control is necessary.

' Here L. N. Staats is the only surviving witness who could and did testify to the instructions given by the grantor as to how these deeds were to be kept and were kept. He testified lliat the grantor instructed him and directed him “to take charge of the deeds and pi’eserve them and when he (the grantor) was dead to deliver them to the children — to the parties named in them, ’ ’ and in answer to a question as to where the deeds were kept from the time they were so signed and delivered to him until the death of the grantor, he answered “they were in my safe cabinet.” There is no testimony whatever that the grantor, James P. Darling, deceased, ever exercised or attempted to exercise any control or dominion over said deeds during his lifetime from the day they were thus placed in the custody and keeping of L. N. Staats, as custodian, nor does it appear that the said James P. Darling, deceased, ever saw or even spoke of the deeds to said custodian after their deposit with him. In some states it has been held that even where the grantor has reserved the right to recall a deed, during his lifetime, but did not exercise such right, delivery was' held to be effectual. After all, we take it that the question whether the grantor parted with all dominion and control over the deeds in question at the time of their delivery to the custodian is to be determined from all the facts and circumstances attending the execution of said deeds and the instructions given to said custodian.

The -intention to part with the property, with a relinquishment of control over the deed must not only appear, but there must also -be a delivery of the deed, and such delivery must be accompanied with the intent that it shall be effective as a conveyance. Here the uncontradicted testimony is that these deeds were so delivered to the witness Staats, accompanied with instructions and directions to deliver them to the grantees therein. named upon the grantor’s death, and further, that they were so delivered as his deeds, and being a present unconditional delivery, the deeds became immediately operative. After delivery the deeds became executed contracts and all rights resulting from the transaction were fixed. Vol. 1, Devlin on Real Estate, Sec. 264. And further, when a deed is delivered to a third person to be delivered to the grantee on the grantor’s death, the title passes as of the time of the first delivery. Such a deed has been held effectual -to pass title even though the grantor retains possession of the premises and received their profits during his life. Vol. 1, Devlin on Real Estate, See. 281; Ball v. Foreman, 37 O. S., 132; Kirkwood v. Smith, 212 Ill. 395, and other eases might be cited.

But it is further contended on behalf of the plaintiffs that these deeds speak by the language used therein as showing the intention of the grantor, and that the reservation made shows that he did not intend that they should have any force and effect presently as his deeds. As a legal proposition it is true that the deeds speak per force of the language used therein, but may not the declarations of the grantor and the circumstances under, which the deeds were executed and delivered be shown? In effect, the reservation was that said deeds, executed and placed with the said custodian wjere not to be of any force during the grantor’s lifetime, and were not to become effective until his death. If this was not the intent and purpose of the grantor, why the necessity of any reservation? As was said in Ball v. Foreman, supra, “if the grantor intended no present interest to vest in the grantees, why make this reservation ? If 1he right of property was not to vest until the right of possession attached, and 'both were intended to be postponed until after his death, the reservation in the deed of the right of occupancy during the life of the grantor, was an act wholly without efficacy or effect. How can a reservation be made when no estate is granted? How can a life estate be reserved by the grantor if the grant does not take effect until he dies?” Surely the reasoning in the case cited refutes the contention that the grantor had no present intention of effectuating a. transfer of title at that time. Further, the grantor whs the owner of said real estate at the time these deeds were executed, and conceding that they were valid, what right did he acquire under said reservation in addition to those conferred upon him by law? He was entitled to a life estate therein, and was not the reservation unnecessary ? As it appears to us it was, in effect, equivalent to a reservation of a life estate only, with the enjoyment of possession in the grantees to be postponed until after his death, and the mere fact that he reserved a life estate and retained possession of the property was consistent with the execution, delivery and deposit of' the deeds, for the purpose stated, with said custodian. This provision in no wise affected his right as a life tenant to enjoy the rents, issues and profits of the property during his life.

Further referring to the reservation in the deeds, it will be noticed that the language employed by the scrivener is that “this conveyance is intended by the said grantor, James P. Darling, to lay in escrow until the death of the said grantor” etc. The mere fact that the scrivener saw) fit to describe the transaction as an escrow does not change the character of the legal effect of the act done. The question is, What did James P. Darling intend to do and what did he do by way of giving effect to that intention? As is held in Mitchell v. Ryan, cited, “no form of words is necessary to the declaration of a purpose whose delivery is made to a third person for the use of the grantee,” and in Ball v. Foreman, cited, it is said that “the intent, when apparent and not repugnant to a rule of law will control technical terms, for the intent, and not the words, is the essence of every agreement,” and in Vol. 1, Devlin on Real Estate, Sec. 319 it is laid down when discussing whether a deed is to be to the deed of the grantor presently or an escrow, that:

“The determination of this question will depend up.on the intent of the parties, and the wbrds used and purposes expressed as indicative of that intention rather than upon the name by which the parties may characterize the instrument. The distinction recognized by the cases is this: If the payment of money or the performance of some other condition is the circumstance upon which, the future delivery is to depend, the instrument is an escrow; but where the future delivery does not depend upon the performance of any condition, but it is ■ deposited with a third'person merely to await the lapse of time or the happening of some contingency, it will be deemed the grantor’s deed presently.”

In the case at bar no condition was to be performed by the grantees named in the deeds; hence the transaction does not fall within the designation of deeds in escrow.

We find from the testimony given upon the trial in the court below that these deeds were delivered by L. N. Staats, the custodian, to the grantees therein named, upon the death of the said James P. Darling, in accordance with his-instructions and directions, and that each of said grantees thereupon entered into the possession and asserted rights of ownership over the respective parcels of the real estate described in their several deeds, thereby signifying and constituting an acceptance of the same.

Partition of the first four described tracts in said amended petition numbered respectively tracts one, two, three and four is therefore denied; and finding that the defendant, Everett 0. Darling, is the owner in fee simple of tracts numbered one and three as described in his cross-petition, his title thereto is ordered to be quieted as against the plaintiffs and each of them, and all persons claiming under them, and further finding that the plaintiffs and the defendant, E. C. Darling, are tenants in common of the tracts of real estate numbered five, six and seven as described in said amended petition, and that plaintiffs and the said defendant are each entitled to a one-fourth interest therein, a writ of partition may issue for said three described tracts as prayed for, and for this purpose the same commissioners will be named as were named by the court below.

Houck, J. and Patterson, J. concur.


author: Cushing, J. Shohl, P. J.,

text:
    PROOF THAT A KILLING WAS DONE PURPOSELY AND MALICIOUSLY.
    Court of Appeals for Hamilton County.
    George Allison v. State of Ohio.

    (Decided December 22, 1919.)

      Criminal Law — Prosecution for Murder — Presumption of Malice Arises, When — Plight Accompanied hy Violent Resistance to Arrest Constitutes Circumstantial Evidence of Chdlt — Proof of Intent — Identity of Accused.

    1. In a prosecution for murder proof that the killing was done purposely may be deduced from the surrounding circumstances, the instrument used, its tendency to destroy life, if palpably intended to take life, and the manner of inflicting the wound. Malice may be presumed when the fact of the killing is proved.
    ,2. Flight from a place where a murder has just been committed, where but one shot was fired, does not create a presumption of guilt, but when accompanied by violent acts such as resisting an officer by pointing a revolver at him to make good an escape, is strong circumstantial evidence of guilt. An opportunity is thus afforded the officer to face the fugitive long enough to take in his features, size, dress and weapon, and thus to establish the identity of accused.

      James M. Riddell; Louis Fernberg and Raymond Ratliff, for plaintiff in error.

      Louis II. Capelle, Pros. Atty., and Charles II. Riston, Asst. Pros. Atty., for defendant in error.
    Heard on error.

       Motion for leave to file a petition in error overruled by the Supreme • Court, February 17, 1920.

   Cushing, J.

George Allison was convicted of murder in the second degree for billing John Klump. The crime was committed in Gerdes saloon, Sixth and Smith streets, October 10, 1918, at about 8:30 P. M.

Klump was shot. The bullet entered his body on the right side, passing through the right arm, a little to the rear, fracturing the third rib, passing through both lungs, and out of the body between the first and second ribs. The direction of the bullet was a little forward, to the left, and slightly upward.

When found the body was lying through a doorway, the feet and legs behind the bar, the trunk in an adjoining room, the arms above the head; and a short distance from his hands was a revolver with all the chambers loaded.

There was but one shot fired. Officers Botts and Lauman were at the opposite corner of Sixth and Smith streets. They were attracted by the shot and hurried to the saloon. Officer Botts crossed Sixth street to the front of the saloon. As he stepped on the sidewalk two colored men came from behind the blind at the saloon door. The man who came out first had a revolver in his hand. He leveled it at officer Botts, who halted to get his own revolver. The colored man ran and officer Botts shot at him as he fled, when at about the middle of Sixth street, but missed him.

The record establishes that the man who leveled his revolver at officer Botts shot and killed John Klump.

Plaintiff in error was arrested, indicted, tried and found guilty of murder in the second degree. This proceeding is prosecuted to reverse the verdict and judgment of the court below.

Two questions are urged by counsel for plaintiff in error:

First: That as no testimony was offered to show how and under what circumstances the shot was fired that killed Klump; there was a failure of proof that the killing was done purposely and maliciously.

Second: That the identification of Allison was such that the verdict is against the weight of the evidence.

The law of Ohio is well settled that the purpose to kill may be deduced from the circumstances, the manner of inflicting the wound, the instrument used and its tendency to destroy life; if palpably calculated to take life, the party is supposed to so intend. State v. Gardiner, Wright 392, and Cottell v. State, 12 C. C. 467-473; 5 Circ. 472.

Also when the fact of the killing is proved, malice may be presumed. Davis v. State, 25 Ohio St. 369; Wharton, Homicide (3 ed.), page 115, and Harris v. State, 155 Ind. 265 [58 N. E. 75].

In Erwin v. State, 29 Ohio St. 186, 191, the court hold:

“As an abstract proposition, when the circumstances of a homicide are not known, further than the mere fact that the death was caused by the use of a deadly weapon, we do not deuv that the jury may, from such fact alone, infer both malice and purpose to kill.”

The evidence of the killing was circumstantial. In this connection the question of identification becomes important.

As stated, there was but one shot fired in the saloon and that caused the death of Klump. The shot was fired when Klump was turning toward or away from the person who fired it. The location of the wound and the direction the bullet took in passing through the body establish that fact, and also that the gun user was not being attacked at the time he fired the shot. The man Avho fired the shot ran from the saloon with a revolver in his hand. Officer Botts was hurrying to the scene of the trouble; he met the man with the revolver on the sideAvalk just after he came out of the saloon. The question is, Was this defendant that man? Did the officer have such a view of him as to be able to identify him ? The lamps on the street and in the buildings made a good light; The gun user was directly in front of the officer, with his gun pointed at him. This was an implied threat to use it if the officer moved in the discharge of his duty. The officer knew that he was facing a desperate man, or one driven to desperation, and the time that passed Avhile they were facing each other was long enough to enable the skilled eye of the officer to take in the man’s features, size, dress and his weapon. This the officer did and fully described them in his testimony to the jury.

Botts was corroborated in his identification of Allison by a woman, Pearl Thomas. The attempts to discredit her as a AA'itness consisted in asking insinuating questions which she answered in the negative. No attempt was made to impeach her by testimony, except by the testimony of Oliver Williams and Cora Ferguson. Williams testified that he and Pearl Thomas were on the steps at 514 West Sixth street when the shot was fired in the saloon; that after the shooting Pear] Thomas went to the corner. He undertook to say that from the time the shot was fired until she went to the corner was five or seven minutes. The Ferguson woman’s testimony was practically the same. It related only to the time. The ability to judge time was a matter to be considered by the jury, in view of all the evidence. All the witnesses agreed that Pearl Thomas was at the place fixed by her.

It was urged that the jury had a right to consider the flight of the defendant as some evidence of conscious guilt. Flight from a place where a murder has just been committed may be evidence of guilt. It does not create a presumption. Hickory v. United States, 160 U. S. 408; Alberty v. United States, 162 U. S. 499; Starr v. United States, 164 U. S. 627; New Mexico v. Lucero, 16 N. Mex. 652 [39 L. R. A. (N. S.) 58n],

Flight, when accompanied by acts of violence, such as resisting an officer, pointing a revolver at him In order to make good his escape, and passing through a crowd without using his weapon or threatening the bystanders, adds to flight circumstances more convincing than flight itself.

The only other question in the ease is the defense interposed by the defendant of an alibi. To support this, sixteen witnesses were offered by defendant. From the testimony of Allison and his wituesses it is certain that he was near the corner of Sixth and Smith streets, on Smith, about eight o’clock.

In support of the alibi, the defendant and his witnesses say that he went from Sixth and Smith streets to Delia Little’s home on Carlisle avenue, arriving there between seven and eight o’clock, remained there until nine o’clock, at which time he went to Sixth and Walnut streets, met a man by the name of Jefferson, talked with him for an hour, and returned to Sixth and Smith streets. He lived in the neighborhood of Sixth and Smith streets. He was there a short time before the commission of this crime and he was back there about ten ocloek.

The case was tried twice. The first jury found the defendant guilty as charged, and the court, out of abundance of caution, set the verdict aside and gave the defendant a new trial. The second jury found him guilty as charged. Both juries saw the witnesses, heard them tell their stories, observed their demeanor on the witness stand, and were in a position to determine the weight and credibility of the evidence.

The judgment will be affirmed.

Hamilton, J., concurs.

Shohl, P. J.,

concurring.

The circumstances developed at the trial are so unusual that it is difficult to find any authority that covers the ease exactly.

I concur in what is said in the foregoing opinion as to the proof of the identity of the accused. The matter- which has given me most concern is the sufficiency of the evidence to establish that the act of the defendant was intentionally committed. If there was any eyewitness to the homicide he was not produced. The conduct of the defendant as he left the scene of the crime in driving off the officer at the point of his revolver, and his subsequent flight, tend to show guilt. Is there any evidence that this act was done with purpose to kill ?

An examination and consideration of the authorities leads mo to the conclusion that the dictum in the case of Erwin v. State, 29 Ohio St. 186, referred to in the foregoing opinion, is correct.

Where the circumstances of a homicide are not known further than the mere fact that the death was caused by the use of a deadly weapon, and there are no facts or circumstances showing justification, excuse or extenuation, the jury may infer both malice and a purpose to kill. See Bailus v. State, 16 C. C., 226; 5 Circuit, 526.

The matter of presumptions and inferences from the use of a deadly weapon is discussed in the note in 34 L. R. A., N. S., 74.

While the question is one that might well be settled by a direct decision of the Supreme Court, T concur in the conclusion that the judgment of the court below should be affirmed,


author: Farr, J.

text:
    TOWNSHIP TRUSTEE DISQUALIFIED FROM VOTING FOR REDUCTION OF ROAD ASSESSMENT AGAINST ABUTTING OWNERS.
    Court of Appeals for Guernsey County.
    Samuel Oliver v. Clifford O. Brill, as Treasurer of Guernsey County, Ohio, et al.
    Decided, April 19, 1921.

      Constitutional Law — Road Assessment Levied by Tovjnship Trustees— Disqualification of a Trustee Who is an Abutting Owner — From Voting to Reduce the Assessment — Members of a Legislative Body may not Vote for a Proposition in tohich they have a Pecuniary Interest Adverse to the Public Interest.

    Where township trustees pass a resolution providing for the payment of a certain part of the cost of a road improvement by the township and a certain part by the abutting land owners, a member oí such board, owning land abutting on such improvement within his township, is disqualified from offering a resolution at a subsequent meeting and casting the deciding vote therefor by which the amount to be paid by abutting land owners is reduced, and the amount to be paid by the township is increased, and which inures to his own pecuniary advantage in a substantial sum.
    Hon. James Joyce and Robert T. Scott, Esq., for plaintiff.
    Hon. Fred L. Rosemond and G. D. Dugan, Esq., for defendants.
   Farr, J.

This canse was heard on appeal. The action below was to restrain the treasurer of Guernsey county from collecting certain assessments made by the trustees of Center township, for the purpose of a certain road improvement known as the' National Pike.

The case whs heard below, and a judgment entered, from which an appeal was taken to this court.

The facts necessary to a proper understanding of the issues are as follows:

In the year 1914 it was desired to improve what is known as the National Pike” through Guernsey county, including Center township. Looking toward that end, the trustees of the various townships through which the improved roadway would pass, were requested to pass the necessary legislation providing for the discharge of a part of the obligation to be incurred for the improvement, which wks undertaken under favor of the law of Ohio, as then provided in 102 Ohio Laws, page 343, or Section 1208, of the General Code, which related to the apportionment of the expense of certain road construction.

Later, action ivas taken by the trustees of Center township under the provisions of Section 1210-1, General Code, 103, Ohio Laws, 457.

After the passage of the original resolution by the township trustees January 1, 1915, further steps were taken looking toward the improvement of the road. By the passage of that resolution it was decided that the township should provide for twenty-live percent of the cost of the improvement — fifteen percent to be paid by the township and ten percent by the abutting property owlners. At the time this resolution was passed, John Boyd, John Noble and Winfield M. Larrick were the trustees of Center township. Boyd’s real estate abutted for about 4700 feet on the improvement.

The Board of Trustees met on the 5th day of June, 1915, with reference to this matter and passed another resolution as follows:

The board of trustees met on the 5th day of June. 1915, seconded by No'ble. Resolved, That the trustees of Center township assume three per cent, of the ten per cent, that the abutting land owners along the National Pike were to pay for the improvement on said road.”

The vote was as follows: Boyd, yes; Noble, yes; Larrick, nay. On the 16th day of August, 1919, still another resolution was passed by the board of trustees of Center Township, which at that time had changed, as to membership, there being but one of the former members at the time the resolution was passed in June, 1915, continuing on the board, two other persons having been elected at a subsequent election. The action of the board on August 16, 1919, rescinded the resolution of June 5, 1915.

The three precent of the ten percent which was assumed by the resolution of June 5, 1915, should not be understood as three percent of ten percent, but 3 percent deducted from 10 percent, leaving a 'balance of 7 percent.

The assessment certified by the subsequent board of trustee* to the county auditor of Guernsey county, and by him placed upon the tax duplicate for collection against the abutting property owners, was for the full amount of the ten percent to be paid by the abutting property owners along this improved roadway; that is to say, that instead of certifying seven percent to be paid by these abutting property owners, they were to pay ten percent, as originally provided.

The contention arises therefore with reference to the assessment certified and the one which it is claimed should have been certified. There is, of course, a difference in these assessments in a substantial sum and it is to enjoin the collection of the amount between seven and ten per cent., that this action was brought; Oliver claiming that he should pay only seven, while the treasurer of Guernsey county and the trustees of Center township claim that he should pay the full ten per cent.

It therefore turns upon the question of the right of John Boyd to offer the resolution of June 5, 1915, thereby relieving himself, as .an abutting land owner, of 3 percent and by his deciding vote carry the resolution in the affirmative. It will be recalled that Harriet voted nay; Noble voted yea.

As above stated, Boyd presented the resolution and moved its adoption, and voted for it; there is therefore no dispute but that it was Boyd’s vote by which the resolution w*as passed. Boyd, however, later disposed of the property.

The vital issue is, therefore, as to his right to offer and vote for the resolution, in view of the fact that at that.time he was an abutting property owner on the improvement of the National Pike to the extent of 4,706 feet, and it is practically conceded that if the township paid three of the ten percent assessed against these abutting property owners, that such payment would be a pecuniary advantage to Boyd of about $300.00; this is probably not the exact.amount, but sufficiently correct for the present purpose; therefore did John Boyd have the right as a township trustee to offer and east the deciding vote for that resolution by which this three per cent, additional was assumed by the township, mailing a total of eighteen per cent, to the township and seven per cent to the abutting property owners; or in other words, did John Boyd have the right as a public official to’ act to his own pecuniary advantage, and to the same extent to the public detriment ?

The principle involved here is discussed in 22 Ruling Case Law, 461, paragraph 124, as follows:

“Every public officer is bound to perform the duties of his office faithfully and to use reasonable skill and diligence and to act primarily for the benefit of the public.”

Practically to the same effect it is provided in 29 Cyc. 1435. Supporting the above text is Horning v. State, 19 N. E. 153, where the general principle as to the conduct of public officials where their own pecuniary advantage is involved is declared as follows:

“A township trustee is the agent of his township in the transaction of its business, and hence in the performance of his duties, he acts in a fiduciary, as well as an official, capacity. Therefore the rule which requires fair dealings and disinterested conduct on the part of an agent or trustee towards those he represents applies, with full force, to a township trustee. The law will not allow an agent or a trustee to place himself in such an attitude towjards his principal or his cestui que trust as to have his interest amenable to that rule as any other agent or trustee. As applicable to private rights, the enforcement of such a rule is imperatively necessary, and as a matter of public policy, the recognition of such a rule is of equal if not greater importance. Greenhood Pub. Pol. 302.
“A public officer is impliedly bound to exercise the powers conferred on him with disinterested skill, zeal, and diligence, and primarily for the benefit of the public. ’ ’

And it is likewise declared in County of Oconto v. Hall et al, 2 N. W. 291, where the syllabus provides in part as follows:

“Members of a legislative body, or municipal board, are disqualified from voting upon any proposition in which they have a pecuniary interest adverse to that of the municipality which they represent.”

Lyon, J., speaking for the court at page 294, observes as follows:

“The general rule of the common law is that members of a legislative body or municipal board are disqualified to vote therein on propositions in which they have a direct pecuniary interest adverse to the state or municipality which they represent. The rule is founded on principles of natural justice and sound public policy. Perhaps the only recognized exception to this rule is the ease where the body or board is permitted to fix the compensation of its members. This exception goes upon the necessity of the ease, and the fact that all of the members are equally interested, and it has been well said that no principle can be derived from it.”
“In Coles v. Trustees of Williamsburgh, 10 Wendell, 659. the same principle was applied to a village trustee. Mr. Justice Nelson said in substance that such trustee was disqualified by general principles of law to vote on a certain proposition before the board of trustees affecting his property.”

A very recent case and well upon the point is Stahl et al v. Board of Supervisors et al, 11 A. L. R. 185, 175 N. W. (Iowa) 772 where it is held that one owning laud within a proposed drainage district which will be largely increased in value by the estah lishment of the district can not east a deciding vote for the estaolishment of such district. See also Drainage District v, Hutchins et al, 84 N. E. (Iowa) 715. Drainage District No. 1 v. Smith et al (223 Ill. 417) 84, N. E. 376. Levee District v. Jamison, 75, S. W. (Mo.) 679.

The same principle is declared in U. B. Church v. Vandusen, 37 Wis. 54. Picket v. School Dist. 25 Wis., 551; U. S. ex rel Masslich v. Saunders, City. Tr et al, 124 Fed., 124; State v. Hoyt. 2 Or. 246.

The facts in the foregoing cases have not been discussed for the reason that they are scarcely important in view of the fact that the cases are declaratory of the common law in the parts cited, and which must control here since there is no specific Ohio statute on the subject. R. R. Co. v. Morris, 6 C. D. 640 and Adkins v. City of Toledo et al, 17 C. D. 417, are cited for defendants, but upon examination are not found to be particularly upon the point, while Insurance Co. v. Harvey, 72 O. S. 188, announces the correct principle and is somewhat helpful here.

It is true that the section of the General C'ode in force at the time, Section 1210-1 General Code, 103 O. L. 457, specifically provides that:

“The township trustees of any township in which a road is constructed under the provisions of this chapter may, by resolution, waive any part or all of the apportionment of the cost and expense of such road as herein provided to be paid by the county or abutting property owners and assume any part or all of the cost and expense of such road improvement in excess of the amount received from the state up to the entire cost and expense of such road improvement without an assessment upon the county or owners of abutting property upon such road.”

However, it wias not the purpose of the foregoing statute to so far abrogate or change the common law rule as to permit a public official to use his authority as such t.o promote his own pecuniary welfare; clearly it applies only in a situation where no financial or material personal advantage is to be gained because every public official is, in a way, an agent and as such, owes his first duty to his constituents and the unselfish discharge of every official obligation; in fact, he is charged with the exercise of the most perfect good faith as expressed in the term or maxim “uberrima fides” any less obligatory rule would afford opportunity for unconscionable advantage.

In the instant case Boyd would be benefitted in the sum of approximately $300.00, which would necessarily have to be paid by the people by whose favor he obtained office; therefore the foregoing cases and authorities rest well within the rule of reason and are fairly conclusive of the issue here.

It follows, therefore, that for the reasons given, judgment must be entered for defendants and it is so ordered.

Judgment for defendants. Petition dismissed.

Pollock and Roberts, JJ., concur.