author: Smith, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    HARRIETTE W. McALPIN et al. v. ALEX. CLARK.

      Alteration of note — Insertion of interest according to the agreement— Addition erased, and suit on note as executed — Discharge of surety.

    Where the maker of a note, after it is signed by the surety, without knowledge of surety, adds to note, “with interest at7. per cent.” according to the previous understanding between the parties, and the payee, without fraudulent intent, afterwards erases such addition and brings suit on the note as originally executed, a majority of the court holds that this will'not be such an alteration of . the note as will discharge the surety.

      Practice — Refusal to give special charge requested need not be stated as ground of motion for new trial, but should be in petition in error.,

    Where it is claimed in the appellate court that the trial court erred in refusing to give a special charge requested, it is not necessary that this should appear as one of the grounds for a new trial in the motion to that effect, but where the fact appears on the record it can be availed of in the petition in error. If not alleged in the petition in-error,the court need not regard it if substantial justice-was done by the judgment below. • • •
    Error to Court of Common Eleas of Hamilton County,
   Smith, J.

■ The majority of the'Court is of the opinion- that substantial justice was done- by ■ the verdict and judgment in'this-case,' and- -that the trial judge did not err in 'overruling the-motion for a new trial, based on the ground'that the verdict was against the law and the evidence. And further that. the Court did not err in giving special charges to the jury to the effect that if the jury found that after the note sued on had been delivered to plaintiff, and in pursuance of a previous understanding between Clark and Woodruff, without fraudulent design on their part, the latter inserted in said note the words, “interest at 7 per cent,” and that said Clark, without fraudulent design, thereafter erased said inserted words, so that the note as sued upon is the same as when 'it was when delivered, except as to the name thereon of Chas. W. Stuart, then I charge you that the insertion and erasure of those words cannot prevent a recovery on the note.” This ruling the majority of the Court think was in accordance with the weight of the authorities, and further that there was no error in other rulings of the Court, properly before this Court, prejudicial to the plaintiff in error, and therefore that the judgment should be affirmed.

While there are some reasons which would incline me to favor the affirmance of the judgment of the Superior Court, yet I am of the opinion that it ought to be reversed. I think it is entirely clear from the evidence, brought up in the bill of exceptions, that after the execution of the note sued on by Woodruff and Mrs. McAlpin at Staten Island, N. Y,, (and which in all probability was given by Woodruff as principal, and his sister, Mrs. McAlpin, as his surety), the same was materially altered by Woodruff, with the knowledge and consent, and in the presence of Clark, the payee, by inserting therein a provision which made it bear interest from date at the rate of 7 per cent per annum, no provision having been made that the note, which was payable four months after date, should bear any interest. It appears from the evidence to be probable at least, that the arrangement between Woodruff and Clark had 'been, that the note- was to bear 7 per cent interest, and by mistake' or otherwise, Woodruff had not put in such provision before the note' was signed. ' I • think too 'it was shown that the subsequent insertion of the interest clause by Woodruff was cLoneJwithout any fraudulent intent on the part of Woodruff or Clark.

When this alteration was made, the note as so altered was a binding contract as to Woodruff, for it was done with his consént, and that of Clark. But in my judgment it j at [once became invalid as to Mrs. McAlpin, and so remained, notwithstanding the' fact that Clark, acting under vthejadvice of his counsel, a few days after the alteration was made, in goodjjfaith, and believing that he had the right to do ’so, erased the words that had been so inserted. And the fact that the suit was brought upon it in the form in which it originally stood, does not operate to restore her liability.

It must be conceded that there is a conflict on the authorities on this point. But there are two decisions of our Supreme Court which I think support the view I have expressed One of them is that of Harsh v. Klipper, 28 Ohio St. 200, where it was expressly held, 1st, that “changing the rate of interest in a note from six to seven per cent is a material alteration;’’ and 2d, “such alteration made by the principal with the consent of the holder and owner, but without the consent of the surety, discharged the surety, though such alteration was made without fraudulent intent. In that case suit was brought on the note, but it was only sought to recover interest at 6 per cent, which was the rate it bore-when the note was executed. But although it was conceded that the alteration was innocently made, the surety was discharged. It may be that the words so inserted had not been erased as in the case at bar, but I cannot see that this is a material difference, for in the Harsh case the note as altered was not relied upon.

So in the case of Thompson v. Massie, 41 Ohio St. 307, where it is again held that a material alteration of a promissory note, by one of the joint payees and holders, avoids it as to sureties not assenting thereto. In this case the alteration was made by one of the makers of the note,^the principal, at the instance of one of the payees, without [the consent of the sureties, and though suit was brought on the note in its original form, the sureties werepheld to be discharged.

I think too the trial court erred in refusing to permit Mrs. McAlpin to show, as she offered and sought to do, that she was a mere surety or accommodation maker of the note sued on, and had never received any part of the money for which it was given. She had alleged in her answer that she was a mere accommodation maker, and the plaintiff had denied this by a reply. The issue was thus directly made, and I think the evidence offered was clearly competent.

lhere was also clear error on the part of the trial judge in refusing to give special charge No. 2 asked by the defendant. It is admitted by counsel for the plaintiff that it was good law, applicable to the case, and should have[been given. But the claim is made that although the refusal to give this charge was duly excepted to at the time, that [as neither the motion for a new trial or the petitionb'n error specifically assigns this as a ground for a new trial, or for a reversal of the judgment, that the Court is not bound’to consider it, particularly as it involved a proposition, which the evidence really did not show to be true, and therefore that no substantial prejudice resulted to the defendant.

It was not necessary that tho motion for a new trial should have set out this ground. If it arose on the record, it could be availed of by a petition in error, without any motion for a new trial. But it is not alleged in the petition in error specifically, and it is probably true as claimed by counsel for defendant in error, that the Oourtfis not bound to regard it -if substantial justice has been done by the decision below. But in my judgment such result was not reached by the decision of the Superior Court, and I favor its reversal.

C. B. Matthews, and Nelson Sayler, attorneys for plaintiff in error.

Paxton & Warrington and F. F. Oldham, attorneys for defendant in error.


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Haynes, Scribner, and King, JJ.
    THE CITY OF TOLEDO v. MARY C. SCHULTERS.

      Practice — One of two distinct parties being in default for plea or answer below, not necessary party to proceedings in error.

    Where, in an action for the possession of land against two distinct defendants, each having a distinct and independent claim to the property, one of the defendants is in default for plea or answer, and the case was tried on the claims o£ the plaintiff and the second defendant, in proceedings in error being instituted, such party in default is not a necessary party to .and need not be joined in such error proceedings.

      Reformation of deed — Omission of one of two lots purchased for description of property in deed — Negligence.
    Where the purchase of two lots is negotiated and agreed upon, but by a mistake of the conveyancer one of the lots is omitted in the description of the property in the deed of conveyance, which is not discovered for several years, when proceedings are instituted for the reformation of the deed, a court of equity will correct the mistake on the ground that it as a mutual one And as between the parties, no claim of innocent third parties intervening, such correction of the mistake will not be refused on the ground of negligence on the part of the grantee when it is more than likely that negligence lies at the bottom of most of such mistakes. The theory of equity is that the thing which the parties themselves intended to do, shall by the court be ordered done.
    Error ro the Court of Common Pleas of Lucas County.
   King, J.

This is a petition in error seeking to reverse the judgment. of the court of common pleas.

August 25, 1898, the defendant in error here brought suit against the T,, W. V. &. 0. Railroad Company, to recover the possession of certain real estate described in her petition, being a lot of land twenty-four feet wide and one hundred feet in length or depth.

After the commencement of the action, the city of Toledo was, on its motion, given leave to become a defendant, and it filed an answer, and some time afterwards an amended answer, in which it admitted that the legal title to the lot described in the petition was in the plaintiff, but set forth that in 1892, it commenced proceedings in the probate court, to appropriate certain property for park purposes, and that Mary 0. Schulters was one of the defendants in that proceeding, and was alleged to own the north-easterly twenty-four feet of the south-westerly thirty feet of the northwesterly one hundred feet of lot fifty-six (56) in Stickney’s addition to the city of Toledo. That at that time she was not the owner and did not have title to the premises described in her petition,but the same were owned by Harriet S. Root, her mother, who also at the same time owned other real estate in that vicinity. And the ‘city desiring to obtain the real estate owned by the said Harriet S. Root, made an arrangement with her to purchase of her said real estate in that vicinity; and shortly after the filing of said application in the probate court, to-wit, August 16, 1892, the .said Root did transfer the said property in pursuance of said agreement, excepting that she did not transfer the. lot of land described in the plaintiff’s petition here, it being understood that she would convey that to her daughter. That owing to the said agreement the said Root was not made a party to the proceedings in the probate court; and ■on the same day that she conveyed to the city she also conveyed the premises described in the petition to the plaintiff, who became then for the first time invested with the legal title. That shortly- thereafter negotiations were carried on between the park commissioners and the plaintiff for the purchase of all the property she owned, being the property described in her petition in this action, and it was finally agreed'that for $3,800, in bonds, given her, she would convey to the said city of Toledo all of her said property; That on the 5th day of December, 1892, the plaintiff and her husband conveyed to a trustee the north-easterly twenty^ four feet of the south-westerly thirty feet of the north-westerly one hundred feet of lot fifty-six (56) in Stickney’s addition, but did not convey the property described in her petition. That it was the understanding that she was to sell and convey, and the city to purchase, all the property she owned, but that the party drawing the conveyance, who-was- her attorney, by mistake, copied the description as set forth in the abstract belonging to her and made prior to the filing of the application in the probate court, and that the property described in the plaintiff’s petition was by mistake omitted from the deed, and said mistake was not discovered until the commencement of this action, and asked that the petition of the plaintiff to recover possession of the land in question be dismissed, that the mistake in the conveyance be corrected, and plaintiff ordered to convey the premises described in her petition to the city. A reply was filed to this answer, and the case came’on for trial and was heard by the court, jury being waived, and the judgment rendered for the plaintiff against the defendant.

That judgment the defendant is seeking to reverse; but in its petition in error has not made the Railroad Company a party defendant. It is claimed the petition in error should be dismissed for this reason, and a motion is formally filed to that effect. We think that motion should b© overruled. This action stood for trial upon the issue formed by the pleadings filed by the plaintiff below and the city, and the issue thus presented was equitable, and from the decree rendered upon that trial the dissatisfied party -could appeal, or might, as the city has done, prosecute error. If on the trial the issue thus presented was determined in favor of the city, such decree would have resulted in dismissing the plaintiff’s petition. If.it had been determined, as it was, against the city, it would then stand for trial if there was an answer by the, Railroad Company upon the action at law for the recovery of possession of the property. The Railroad Company not having answered, the plainitff below was, no doubt, entitled to its judgment as upon default. But there was no occasion for making the Railroad Company a party to this proceeding in error.

Several errors are assigned, but none of them are prejudicial to the plaintiff in error, and need receive no notice at our hands, except the claim that the judgment of the court is not sustained by the evidence or law.

The evidence in the case shows that, in May, 1895, the plaintiff below and her mother, Mrs. Root, who resided at Painesville, were the owners of certain property on Summit street. Mrs. Schulters and her husband resided upon and occupied premises known as No. 1828 Summit street. The house known as 1828, was the northerly half of a double house, and was situated upon a lot fronting on the street, twenty-four feet in width and extending back two hundred feet to what is known as Water street. The front one hundred feet was then owned.by the plaintiff, the rear one hundred feet by her mother. Adjoining the rear one hundred feet, on the south, with the other half of the double house, was 24 x 100 feet owned by one Bailey. Adjoining Bailey and the rear one hundred feet was a piece ninty-two feet front on Summit street and two hundred feet deep, belonging to Mrs. Root. With that state of the title,negotiations were commenced to purchase all the property owned by Mrs. Root and Mrs. Schulters. On May 31, 1892, Mrs. Schulters’ husband, acting for these two women, submitted to the agent of the park board the following proposition:

“As per your request of yesterday, regarding price of Summit street property owned by Mrs. Schulters and Mrs. Root, for park purposes, will give you the following figures: Premises known as 1828 Summit street, 24x200 feet, $4,000 Property back of 1826 Summit street, 24x100 feet, $10 per foot,4 240. Summit street frontage, 92x100, forty dollars per foot, $3,680. Total, $7,920. This offer to continue only sixty days from date.”

This proposition made by Mrs. Schulters and Mrs. Root, embraced all the property that either or both owned in that vicinity. The written evidence shows that on July 23, 1892, the park board, by a resolution, authorized the president to notify Mrs. Root, “that her proposition to sell her Summit street property, at $40.00 per front foot, 92 x 200 on Summit, and ten dollars for the twenty-four feet adjoining,'fronting on Water street, had been accepted.”

Here, so far as written testimony is concerned, occurs the first confusion. Since it assumes that the 92 feet on Summit street and the 24 x 100 feet in-rear of No. 1826 was all that Mrs. Root owned; whereas, as I have stated, she also owned the other lot 24 x 100 in the rear of No. 1828. There is evidence showing some conversation between the agents of the different parties, but nothing was accomplished, and on August 1, is the next written evidence. Messrs. King & Tracy addressed a letter to Mr. Walbridge, the President of the Board of Park Commissioners, in which they say:

“Your favor of the 25th inst. to Mrs. Dr. Root, of Painesville, has been referred to us with instructions to say that Mrs. Root will not accept bonds of the city of Toledo for her property, as suggested in your letter. She is willing to accept the price named by her, to-wit, $3,920,in, cash for said property.
“We also represent the property owned by Mrs. Schulters, known as 1828 Summit stree.t, and adjoining the property belonging to Mrs. Dr. Root. In case you desire to negotiate for this property further, will be glad to hear from you.”

From this letter, I observe that $3,920 was the sum total of the price named in the proposition of -May 31, for the premises described as 92 feet on Summit and 200 feet deep, and 24 x 100 in rear of No. 1826. Also it should be noticed that the premises known as 1828 Summit street did not adjoin either of these pieces of properly, except the rear 100 feet that did adjoin Mrs. Root’s property; and I should say here, in explanation, that the rear 100 feet, as I call it, is the property in suit, which Mrs. Schulters claims she did not convey. The front 100 feet is what she did convey. Now, it is evident from the letter of King & Tracy that they spoke of the same property described in the proposition of May 31, to-wit, No. 1828 Summit street, 24 x 200 feet. Following this transaction in the order of its date, August 6, King & Tracy wrote a second letter, in which they say they are instructed by Mrs. Root that she will sell the property described in former letters provided she can receive $3,900 in cash. The evidence shows that this proposition for $3,900 was accepted. On August 11, we find King & Tracy writing Mr. Schulters,' enclosing a deed from Harriet S. Root and husband to a' trustee for the city, which deed was for the 92 x 200 feet premises, and 24 x 100, being the piece in the rear of No. 1826, and also on this date, a deed prepared by them from Harriet S. Root and her husband to Mary C. Schulters, for the 24 x 100 feet in the rear of the premises she then owned. The letter requests that they be forwarded to Mrs. Root for execution. That part of the transaction was soon closed up, the city taking a deed of all of the property owned by Mrs. Root and Mrs. Schulters in that vicinity, except the single piece described in the letter of May 31, as to 1826, 24 x 200 feet. The deeds sent Mrs. Root were executed by her on the 16th of August, and soon after delivered to the park board.

On the 11th of August the city solicitor commenced the-proceedings in the probate court that have been referred to,, and in that proceeding he described Mrs. Schulter’s property as being 24 x 100 feet on Summit street, and that unquestionably was the land owned by her at that time. These-proceedings awaited service of different other parties by publication, and negotiations were continued with reference to the purchase of the Schulters property. The first definite item of evidence is a letter from King & Tracy, addressed to Mr, and Mrs. Schulters, saying:

“We have lately had some negotiations with the board of park commissioners looking to a settlement of condemnation proceedings, whereby said board seeks to appropriate your property on Summit street.”

The expression “your property on Summit street”, viewed in the light of the proposition of May 31st, and the fact that on August 16th her mother had conveyed to Mrs. Schulters 24 x 100 feet, then must have meant the premises first described in the propositen of Ma'y 31st, as 1828 Summit street, 24 x 200 feet. They further say in the same letter:

“We have now an intimation that an adjustment can be had upon the followng terms:
“For due conveyance by warranty deed of 24 feet front owned by you, we can get you $3,800.”

The original proposal was $4,000.

On the same day Messrs. King & Tracy wrote another letter, in which they speak of the possession of the property, and say that they can arrange to have Mrs. Schulters allowed possession until March 31, 1893.

There is some other correspondence not very material, the result of all which was an agreement to convey the property that had been proposed. A deed was drawn, and on December 5th executed by Mr. and Mrs. Schulters. The deed in question described the front 100 feet. It was prepared by King & Tracy, and they say that it was prepared from •anjabstract, and from a description of the property in the appropriation proceedings. Mrs. Schulters also claims that when the proposition was accepted, she inquired of her attorneys if ¿it included more than the front 100 feet, and they said‘no. The attorneys do not recollect this conversation. She also testifies that when the deed was executed, she knewjjit only included the front 100 feet.

Is there enough from this evidence to say that this judgment should be reversed on the ground that it fairly appears ás the weight of the evidence that here was a mutual mistake^ofjthe parties ?

The defendants in error claim:

First — That as this property was conveyed by a deed whose terms were plain and explicit, it cannot be disturbed, and no correction decreed unless the proof beyond a reasonable doubt shows a mistake to have been made.

Second: — That no mutual mistake has been shown, since there is evidence that Mrs. Schulters knew she was only conveying the front 100 feet, and in that connection it is said tliaUno weight can be given to the proposition of May 31st, since by its terms it expired in sixty days, and any negotiations had between the parties after that date must have been independent of that proposition. To the court it appears there is no such necessary view to take of the evidence. The evidence does not show that the proposition was withdrawn. On the contrary, it shows continuous negotiations with reference to it, both as to the property of Mrs. Root and that of Mrs. Schulters. There is nothing in the evidence to show a breaking of negotiations other than might be inferred from the commencement of appropriation proceedings; but as the applications filed in the Probate court embraced a large amount of other property, it may well be that the city concluded it advisable to have those proceedings under way, and it was necessary to publish for service upon a large number of persons, to have that publication in process of completion. It seems clear to the court that the proposition of May 31st, constituted the basis of all negotiations had with reference to this property. In that proposition there is no division of the pr opertysbetween Mrs. Root and Mrs. Schulters; and so far as it is concerned,all property described might have been owned by the two jointly. The acceptance of the proposition as to a part of the property did not preclude the continuance of negotiations as to thejbalance, and we are quite clear from a careful reading of this testimony, that the proposition 'finally accepted, to pay $3900 in bonds, was made by the Board upon the supposition and expectation that they were to receive the property described in the proposition of May 31st.

When the deed came to be drawn,, it is clear that the attorneys of Mrs. Schulters had no idea that there was a division to be made in that property, but they consulted an 'abstract prepared before August 15th, and consulted the application to the .Probate Court, and from it they learned that. Mrs. Schulters owned 21x100 feet, forgetting evidently, that since the preparation of those papers, she had acquired an additional amount, of land from her mother,which additional amount, embraced in the proposition of May 31st, was. deducted out of the deed her mother had made tojjthe city.

We are inclined to think that both these parties acted upon that plain misunderstanding. But it is said that this mistake is not mutual; and also in that connection it is said that the party asking its correction must not have been negligent. We do not understand such to be the rule, where the controversy arises between the parties to the mistake. Tt'would be difficult to understand why the correction of a 'mistake should be refused on the ground of negligence, whén it is more likely that negligence lies at the bottom of most of such mistakes. The theory of equity is that the thing which the parties themselves intended to do, shall by the court be ordered done.

Kinney & Neioton, attorneys for plaintiffs in error.

Hurd, Brumback & Thatcher, attorneys for defendants in error.

With the question as to Mrs. Schulters’ knowledge, and its effect, we have had more difficulty. It is not clear f^om this record, to me, that Mrs. Schulters had the knowledge which she claims now to have had. Nothing that was done between the parties indicates that she knew at the time of the conveyance that she was only conveying one-half the area of the land she owned; but if she did know, we are very clear in our judgment that she also knew that the city made its proposition upon the basis of the 200 feet, and that it expected to receive a deed therefor. And if that fact appears in the testimony, then, upon well considered authority, it is clear that a court of equity will correct such a mistake upon the ground that it is a mutual one.

Without reading, I cite cases as follows: 44 N. H., 66 Cal., 280; 52 Conn., 483; 109 Ind., 354.

Our conclusion is, that it appears from this record that the city purchased and intended and expected to receive a conveyance of the piece of land described in the petition; in other words, of the lot 24x200, and that upon that evidence the court ought to have decreed a conveyance of the balance of that property to the city, and-that the judgment therefore is against the evidence and the law.


author: Cherington J.

text:
    Fourth Circuit—Scioto Co., O., Circuit Court
    March Term, 1896.)
    Before Clark, C. J., Cherrington and Russell JJ.
    CRULL v. MORGAN.

      Practice — Reversal of ease in toto instead of modifying judgment— Discretion of reviewing court.

    Where the error in a judgment, rendered by a justice of the peace consists only in the taxing of the costs, the court. of common pleas, on error, might have reversed such jugment as to such costs erroneously taxed only. But that court had the authority in its discretion to reverse the judgment in toto, and the circuit court will not reverse the judgment of the common pleas for such action.
    Error to the Court of Common Pleas of Scioto County.
    The plaintiff in an action before a justice of the peace recovered a judgment against the defendant for the amount due on a promissory note, and the justice of the peace in entering the judgment rendered judgment in favor of the plaintiff for all the costs of the suit, in which judgment for costs was included the costs incurred by the defendant as welLas those made by the plaintiff. The costs of both the plaintiff and defendant were separately taxed in the margin as required by law. The plaintiff in error in the common pleas complained of the judgment rendered against him by the justice of the peace for the reason that the justice rendered judgment against him for all the costs of the case,including the costs of the defendant below, when judgment ought to have been rendered against him for the amount of the debt and the costs of the plaintiff below, and asked that the same be reversed. The defendant in error filed an offer in the common pleas to remit from the judgment rendered by the justice of the peace the amount of the. defendant’s costs, and consented that the judgment as to such costs be reversed.
    The court of common pleas reversed the judgment in toto.
   Cherington J.

Held, 1. The judgment rendered as to costs was erroneous, but was one which the common pleas court could have remedied by modification if, in the exercise of its sound discretion, it had deemed it advisable so to do, and it was not incumbent upon the common pleas court to reverse the judgment in toto, but the same could have been reversed as to the costs erroneously taxed,

Had "this court been the first reviewing court, the judgment would have been modified.

John O. Milner, for defendant in error,

cited 31 Ohio St., 636, 637, 293. Sec. 6708 Revised Statutes.

Bannon & Bannon, for plaintiff in error,

cited 37 Ohio St., 442, 443, 434; 33 Ohio St., 459; 340hio St., 400; 31 Ohio St., 293; 5 Ohio, 276. Secs. 6708, 6709, 1318 Revised Statutes.

2. The court of common pleas' having declined to reverse the judgment of the justice as to such costs erroneously taxed only, but having reversed the same in toto, the Circuit -Court cannot question its authority in this respect on error, and will affirm the judgment of the court of common pleas.


author: Haynes, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    January Term, 1896.)
    Before Haynes, Scribner and King, J.J.
    ADAM MEISSNER v. EMMA BERGMAN.

      Alimony in gross in lieu of dower payable in installments — Early death of wife no ground for reduction.

    'Where alimony in a fixed sum, payable in installments, is adjudged in lieu of all dower rights in husband’s land, which is thereupon released of all such dower rights, and such judgment is sold by the wife in consideration of care and nursing, on the early death of the wife such amount adjudged will not be reduced on the ground of excessiveness, or because expenses incurred by wife were unnecessary and extravagant.
    Appeal from the Court of Common Pleas of Lucas County.
   Haynes, J.

The petition in this case was filed in the court of common pleas to modify the judgment or decree that^had been rendered before that time in a case wherein Adam Meissner was a'defendant and Anna Meissner, his former wife, was plaintiff. The testimony shows that Anna Meissner had filed a petition for divorce and alimony; that after quite a long trial a decr.ee was rendered wherein divorce was granted and alimony to the amount of $1,500.00 allowed to Anna Meissner. From the decree for alimony appeal was taken by Adam Meissner to the circuit court. Application was made for alimony pendente lite in the circuit court, and a hearing was had upon affidavits and testimony, and a certain allowance was made. After that the parties commenced negotiating, and the result was that an agreement was reached whereby Anna Meissner released all right of dower in the husband’s land of every kind and nature, as I understand it, and all rights of every kind and nature, and he on his part agreed that the same decree for alimony might be entered in the circuit court as was entered in the court of common pleas, to-wit,for the sum of $1,500.00. And thereupon,acting upoix that agreement, the court proceeded to and did enter a decree of that kind — not as a matter of agreement by the parties, but upon the evidence of the parties that they were willing that should be entered. That decree stands in this court, and is as follows:

“This cause being in this court on appeal from the order of the court of common pleas for alimony, this day came on for hearing thereon, and the court having heard the evidence and arguments of counsel, and being fully advised in the premises, doeth find from the evidence that the plaintiff, Anna Meissner is entitled to alimony out of the estate of the said defendant Adam Meissner in the sum of $1,500.-00. It is further ordered, adjudged and decreed by the court that the said plaintiff have and recover from the said defendant the said sum of $1,500.00, and that said defendant pay to the said plaintiff the said sum of $1,500.00 in installments as follows, to-wit: $500 on or before the 25th of January, 1895; $200 on or before the 15h day of May, 1895; and $200 every three months thereafter until the whole amount of $1,500 shall have been paid, and the same is hereby made a lien upon all the real estate of the said defendant Adam Meissner, described as follows, etc. * * * And in default of any such payments for three days, execution is allowed to issue therefor. It is further considered, ordered and adjudged by the court that the defendant Adam Meissner pay all costs herein, and execution is awarded. ”

Some payments were made upon this decree or judgment, and thereupon, at a certain date, perhaps in May, the plaintiff Anna Meissner, sold the decree to her daughter Emma Bergman, who was to take care of her mother during her lifetime, and who proceeded to and did do so.

The testimony shows that at the trial of the case, and prior to it, in the court of common pleas, Anna Meissner wasjan invalid, and had been for some time, and that the prospects were that she would never be anything other than an~invalid so long as she lived. This daughter continued to care for her mother until some months later, the exact date4I do^not remember, when the mother died. Thereupon the plaintiff Adam Meisner, who was the defendant in the original suit, filed his petition in the court of common pleas to have the decree modified so that the amount of alimony that was due upon the installments after the death of Anna Meissner, should be cancelled and set aside. That wasjheard in the court of common pleas, and the application was refused. The case was appealed here, and now the matter has been brought before us.

It appears from the statement made and the testimony that payments had been made upon this alimony, and after deducting the proper attorney’s fees and some costs and expenses, the sum of $400 had been turned over to Anna Meissner, leaving a balance of seven or eight hundred dollars due. It appears from the testimony of Mrs. Bergman that the actual expense of medical attendance and some other matters, such as carriage hire for the convenience and comfort of her mother, amounted to somewhere in the neighborhood of $700; and that this daughter, who had been before that working as a milliner and dressmaker, or at least working for a lady upon a certain salary per week — $25 perhaps — upon her mother coming to live with her,gave up that employment and devoted her whole time to caring for her mother, who required a great deal of care and attention; that she makes no claim for her services, but she never could have hired another person to perform the same services as nurse for her mother in the city of Chicago for less than $15 per week.

There are three reasons why we think this application ought not to be granted. In the first place, the amount of $1,500 is an absolute judgment, setting apart that much of the property of Adam Meissner for the support and maintenance of this wife during her lifetime. It is somewhat different from what it would be if she had been allowed an amount of $50 during her life time. This matter was gone into pretty extensively in the court of common pleas, and the court, upon a full investigation of the matter, granted this alimony as a sum total for her support and maintenance during the remainder of her life; and upon the ase being appealed to the circuit court, there was an arrangement made and a contract entered into, whereby this amount was to be given to her, upon her surrendering whatever rights she might have by way of dower or otherwise in. the property of her husband. That right, under the condition, might not have been very valuable, nevertheless it was a right, and a valuable right to a certain extent, and it was a consideration which the defendant Adam Meissner was anxious to get. Evidently he was anxious to get all his property clear of the inchoate right of dower in favor of Anna Meissner. It might be he wanted to borrow money, and in that event it would be very valuable to have that inchoate right out of. the way. At any' rate, the agreement was made, and it is a matter which should have a bearing on the decision of this court.

In the third place we are not satisfied that this amount was any more than fair and just, and reasonable, taking all the circumstances of the case into consideration. It is said she spent money faster than she needed to; that they went riding when it wasn’t necessary. Suffice to say all that, as was said by Judge King upon the hearing of the case, when this amount was given to her, it was hers. Although portions of the judgment might be paid in installments, she had a right to sell it as she saw fit; she had a right to use her own judgment as to her own comfort and convenience as to how ihe should live for the remainder of her days. We think the defendant Adam Meissner had no right to interfere or to make any suggestions as to how or in what manner she should live. After taking out reasonable counsel fees and expenses, we think the balance is no more than she ought to have.

J. E. Pilliod, for plaintiff in error.

Kinney & Newton, for defendant in error.

For these reasons the application of the plaintiff, Adam Meissner, the defendant in the original case, will be denied by this court, and judgment will be rendered against him for the costs of this proceeding.


text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    January Term, 1896.)
    Before Haynes, King and Scribner, JJ.
    LAKE SHORE & MICHIGAN SOUTHERN R. R. Co. v. C. L. LUCE & CO.

      R. R. Go. not liable for value of goods lost for having delivered same to stranger, who had ordered them and who pi'oduced invoice.

      A wholesale firm in Toledo received an order for goods from a man in an inland town. There was a merchant of the same name doing business at that town, who had formerly dealt with the Toledo firm, and supposing him to be the man who ordered the goods, the same were shipped by railroad and the invoice mailed to the address and letter-box given by the customer. On the arrival of the goods at the place, the man who had ordered them appeared at the station, claiming the goods and producing the invoice, whereupon the goods were delivered to him by the railroad officials without further identification, although they did not know the man, in consequence whereof the goods were lost. On suit brought by the Tolodo firm against the railroad company for the value of the goods, for negligence in delivering the same to a stranger without identification, held, that the goods having been delivered to the man who had ordered them the railroad company was not liable.
    Error to the Court of Common Pleas of Lucas County.
   Haynes, J.

This cause was heard, by agreement of counsel, before Judges Haynes and King, Judge Scribner having been originally in the case.

This action was originally brought in the court of common pleas by C. L. Luce & Company against the Lake Shore & Michigan Southern Railway Company, for an alleged wrongful delivery of certain freight that had been shipped from Toledo by Luce & Co. to parties in Kendalville, Indiana, and such proceedings were had in the court of common pleas that a judgment was rendered against the Lake Shore Company, which now prosecutes this petition in error to reverse that judgment. There is an agreed statement on file as to the leading facts in the case.

It appears that, on or about the 18th of February, 1884, C. L. Luce & Company, who were then doing business as wholesale dry goods merchants, at Toledo, Ohio, received an order, in writing, by letter, dated Kendalville, Indiana, February 12, 1884. There is no heading to that letter — nothing to indicate that the party carried on any business of any kind whatever — which reads as follows:

“Kendalville, Ind., February 12, 1884.
[‘Messrs. C. L. Luce & Co.,
Nos. 132 and 134 Summit St.,
Toledo, O.
“Gentlemen: As I am in want of a line of Clark’s O. N. T. spool cotton to sort up, and also a few dozen Coates’, will favor you with an order for which you may draw on me at the end of thirty days, etc,
“Please ship the following via freight. (And then the letter gives a list of the spool cotton desired, and says:) An early shipment will oblige, etc.
“Yours Truly,
‘ H. D. WARD.
“Per L.
“Lock Box, No. 247, Kendalville, Ind.”

On the same day, Luce & Co. packed the goods and delivered them to the Lake Shore Railway. The bill of lading reads:

“Shipped by 0. L. Luce & Co., etc., one case of dry goods, 200 pounds weight, marked H. D. Ward, Kendalville, Ind. W. L. Stowe, Agt. ”

Those goods arrived at Kendalville in the regular course of freight. At the same time that the goods were shipped Luce & Co. made out an invoice of the goods and mailed the same to H. D. Ward, directed to H. D. Ward, Lock Box 247, Kendalville, Indiana. The day before the goods arrived at Kendalville, a party appeared at the depot and asked for a certain box of goods, saying that bis name was H. D. Ward and that he had’ ordered some goods. He was informed that they ha'd not arrived yet, but would probably be along the next day. On the next day he went to the depot, about the time that the freight train was in and the car had been left there, and the employes of the railroad were unloading it, and, amongst other things, they passed out a box or package of^goods, and this party remarked that those were his goods,and asked for them. The agreed statement of facts says:

“Upon the arrival of said case of goods at Kendalville, to-wit: the — day of February, 1884, the said H. D. Ward called at the defendant’s warehouse for the same, and represented to the said defendant’s clerk or agent that bis name was H. D. Ward. That he was living at the Kelley House in said city, and that he was the party who had ordered and purchased the case of goods and to whom the same was shipped and consigned. The agent or clerk of said defendant thereupon delivered the goods to said party and took his receipt therefor, accepting the statements of said party to be true and knowing nothing to the contrary. Sáid case of goods was in fact purchased and ordered of said plaintiffs by the party to whom said goods were delivered.”

The agreed statement of facts preserves the right of either party to offer further testimony, and the deposition of the agent of the railroad company, who was then, and had been for a great many years at Kendalville, was taken, in which he says that he asked the party who applied for the goods if his name was H. D. Ward; and says: “I asked him if he had a bill of lading, and he replied that the shipper did not send one. Then he exhibited to me some letters bearing his address. I refused then to deliver. Then he asked me if the shipper’s invoice would answer. I said yes, and asked him who the shipment was from. He stated he bought the goods of O. L. Luce & Go., of Toledo, Ohio. Thereupon I looked at the margin of the waybill and found that the shipper was C. L. Luce & Co, of Toledo. The party then produced and exhibited to me the invoice of the .goods and the letter bearing his address, in which the same was mailed to him. He said the goods were his; bought by him of Luce & Go., of Toledo; and demanded their delivery. Thereupon I delivered the same to him, taking his receipt therefor, which is hereto attached.”

Mr. Arthur B. Luce is called upon to testify also, and he states that in the summer of 1884 he went to look up the facts in regard to these goods and called upon the agent at Kendalville, and he stated to him substantially as is stated in the agreed statement of facts. The agent testifies that he told him that he also exhibited to him the letter and invoice as stated.

Luce & Co. took no immediate steps about the matter, but let it remain for some time.

Th9 agreed statement of facts shows further, that there was a man by the name of H. D.Ward, who was a merchant at Kendalville, Indiana, and had been for a great many years, and carried on a general store there, and that he had formerly traded with C. L. Luce & Co., buying and receiving goods from them, but had not done so for some time prior to he 12th of February, 1884 — perhaps not for several years. I-t further appears that at the time that 0. L. Luce & Co. received this order for these goods, they telegraphed their agent at Kendalville, inquiring as to the standing of H. D. Ward, and received a reply that he was still in good standing. Tne party who received these goods disappeared from Kendalville, and, according to the agreed statement of facts, has never been heard from since. He never paid for the goods, and converted them to his own use.

On this state of facts the case was submitted, under the charge of the court, to the jury. The jury returned a verdict for the plaintiff. A motion for a new trial was filed, on the ground that the verdict was not sustained by sufficient evidence and was contrary to law, and for the further reason that the court erred in refusing to give to the jury a certain request which was made by the defendant company. Said request is as follows:

“If the jury find from the evidence in this case that the agent of the railroad company delivered the goods in question to the party who bought and ordered the goods of Luce & Co., and he was identified by the production of the original invoice and letter addressed to him, then, and in that case, the company cannot be held responsible in this case for such delivery, and your verdict should be for the defendant.”

This case has been very fuliy argued before us, and quite a number of authorities have been cited upon either side, to the citation and reading of which we have listened, and after a very full discussion of the facts and the law of the case, we are of opinion that the verdict in this case should be set aside and the judgment of the court of common pleas reversed.

It will be noted that in this case the goods were ordered of C.'L. Luce & Co. by a party giving his name as H. D. Ward. There is nothing in the record to show that his name was not H D. Ward in fact, or that he was not purchasing the goods in his own correct name. Secondly, he ordered these goods by mail, in a letter that was received by Luce & Co. It is claimed by C. L. Luce & Co. that when they re« ceived that letter they supposed it came from their former correspondent and patron, H. D. Ward, who was carrying on business at Kendalville. But it seems to us that if they had been doing business prior to that time with H. D.Ward, they were bound to know his signature and his letters, his methods of doing business with them, and his address. Now this letter did not have any heading, as it is customary to have, with the name of the parties, where they were carrying on business, or anything of that kind, but it is a letter that is written, in full; and it seems to us that there was some obligation — some duty, upon C. L. Luce & Co. to know that the letter that they received from this supposed correspondent was in fact the true and genuine letter of the party. They, however, having supposed it was from their party, shipped the goods. They sent the invoice directed to H. D. Ward, Lock Box 247; which was received by him in the regular course of the mail, and when he went to the agent of the company to demand his goods, and when he received them, he had that in his possession. That seems to< be agreed upon by all the parties, that he had received that. The only contest is, whether he had submitted that to the agent. The agent says that he did,and that he saw’it. The only thing to the contrary is an alleged conversation — which is denied — in which it is claimed that he said he had delivered them without seeing this, or had delivered them simply upon the demand of the person who represented himself as the proper person to receive the goods. It will be observed that the goods were ordered by a man who, so far as this court is concerned, was named H. JD. Ward. They were shipped to the party who ordered them,and they were delivered to the party who ordered them; there can be no question about that so far as the record is concerned, and the claim that is made here is, that the company still should be liable for all that, because they didn’t take steps to ascertain whether this party who received these goods was the party to whom O. L. Luce & Co. supposed they were shipping them at the time of their shipment.

Potter & Emery, for plaintiff in error.

Brown, Geddcs & Tyler, for defendant in error.

Now, it seems to us very clear that there was no negligence upon the part of the company, or the agent of the company, for delivering the goods under the circumstances under which he says he delivered them. Nor, indeed, do we think there would have been any negligence even if the letter that he speaks of had not been shown to him; for the reason that he had delivered the goods to the party who ordered them, and to the party who, upon the facts of the case, was entitled to receive them, from the fact that he ordered them, and that the goods were shipped to him.

In this class of cases, we do not favor the giving to the jury of requests drawn as closely as this is; nowithstanding, we are inclined to think that the court might well have given that charge; and we therefore hold that the court erred in refusing to give the charge that was requested by the railroad company, and that it also erred in refusing to set aside the verdict on the ground that it was not sustained by sufficient evidence, and was contrary to law. The judgment will be in favor of the plaintiff in error.


author: Hale J,,

text:
    (Eighth Circuit—Lorain Co., O., Circuit Court
    April Term, 1896.)
    Before Caldwell, Hale and Marvin, JJ.
    HENRY E. MUSSEY v. GEO. A. BUDD et al.

      Dower — Relinquishment by wife in conveyance for husband’s debt— Consideration.

    A relinquishment of dower by the wife, in accordance with the requirements of the statute, joining in a deed with her husband, which deed is supported by a consideration valid between the husband and the grantee, operates as a relinquishment of dower by the wife.
    Appeal from the Court of Common Pleas of Lorain County.
   Hale J,,

The case of Mussey v. Budd and others is in this court by appeal from the Court of Common Pleas, and has been submitted upon the testimony.

The case involves a point of law that has not been determined by our Supreme Court so far as we are able to find.

We find from the evidence submitted on the hearing and the statement of conceded facts made by counsel, that the plaintiff Mussey and the principal defendant George A. Budd for some years prior to the execution of this mortgage, had been associated together as partners in business, Mr. Mussey being the responsible member of the firm, giving to the firm its credit by which it was enabled to borrow means to prosecute the business.

The management of the business, however, was almost wholly in charge of Budd.

On the 9th, day of January, 1895, Mussey became surety for Budd upon a promissory note of $5000. The particular form in which that obligation was assumed by Mussey is not essential to state, but it is conceded that the note, although made by Budd & Company, payable to the order of Mussey, was endorsed by Mussey for the accommodation of Budd im dividually, and that he had the proceeds of the note.

On the 11th, day of February of the same year Budd drew a bill of exchange upon George A,. Budd & Company, payable to the order of Mussey,for the sum of $7500, which Mussey indorsed over to the bank and became liable as indorser thereon,and this it is conceded was for the individual benefit of Budd.

On the 8th day of March, before the maturity of either of these obligations to which I have referred, Budd, his wife joining in the release of dower, executed to Mussey the mortgage which is sought to be foreclosed, to secure Mussey from any liability that he had assumed upon both of these pieces of paper to which I have referred.

The wife alone answers, that the mortgage is not good and valid as to her, has no effect whatever upon her right of dower, for the reason that at the time the mortgage was executed no consideration moved either to her or to her husband.

It further appears from the evidence that at the time Mussey assumed the obligation upon this paper,he supposed that the firm of Budd & Co. was in a fairly prosperous condition, and was wholly unaware of the true condition of the business of the firm.

On the 8th day of March, the date of this mortgage, ora day or two prior thereto, Mussey ascertained that the firm was utterly insolvent as a firm, and to meet the obligations of the firm necessitated the appropriation of more than three hundred thousand dollars of his individual property. A perfect cyclone struck the business, and to save himself as well as he might under the circumstances this mortgage was executed by Budd and wife upon a lot which Budd owned in this city. Under the circumstances, is that mortgage good as against Mrs. Budd?

Clearly the mortgage is entirely valid as to Budd. A prior or a subsequent consideration is all that is requisite.

Mortgages are frequently given to secure an existing indebtedness, in which case o£ course the consideration is wholly a past one. And it is uniformly held that a mortgage executed upon such a consideration is as good and valid as if executed upon a present consideration.

Of course, we meet a different question when we consider the effect that a conveyance made upon such a consideration should have upon the release of dower, and it has been a matter of very careful investigation by us and of very much discussion between members of the court.

We hold that a relinquishment of dower by the wife in accordance with the requirements of the statute, joining in a deed with her husband, which deed is supported by a consideration valid between the husband and the grantee, operates as a relinquishment of dower by the wife.

There is a case reported in the 24 Fla. page 71, in which the proposition, substantially as I have stated it, is held by the court. Of course, it is not this case, nor do we find any case exactly like the one we are considering. Another case reported in the 8th Iowa, page 358, is somewhat in point, Hobart and wife executed a mortgage to secure an indebtedness of the firm of which Hobart was a member.

The notes secured by the mortgage were dated prior to the execution of the mortgage, and matured after its execution, being the precise state of facts we have here as to the condition of the notes.

The proposition was made in that case as here, that there was no consideration for the mortgage, and therefore that it could not be enforced; but the court held that the indebtedness of the firm, of which Hobart was responsible as a member, was ample consideration to support the mortgage, although the notes had been executed prior to the making of the mortgage; an account was taken of the amount due, and the premises ordered sold to pay the indebtedness.

The report of the case is not very full, and it does not appear that a contest was made in behalf of the wife individually, except as the defense was made in behalf of both husband and wife; but under the facts of that case, the same objection could have been made as argued here. If the deed in which the wife joined, relinquishing her dower, is a valid conveyance, we see no reason why the wife should not be bound by her relinquishment of dower in such deed.

E. Gr. Johnson, for plaintiff.

H. W. Ingersoll, for defendant.

We are well aware that the right of dower of the wife in the lands of the husband has been held by our Supreme Court to be property. It is property, however, of a peculiar kind, of which there is no present enjoyment. It is both inchoate and contingent. This right can be released by the wife upon any good and valuable consideration moving to the husband; and if the husband for a good and valuable consideration pledge the property in which the wife has a contingent right of dower for the payment of his debts, the wife joining in the conveyance, releasing her right of dower, we hold that she is bound by such release.

Coming to this conclusion, it follwos that a decree of foreclosure shall be entered, and the premises ordered sold, free of the right of dower of Mrs, Budd.


author: Hale, J.

text:
    (Eighth Circuit—Lorain Co., O., Circuit Court
    April Term, 1896.)
    Before Caldwell, Hale and Marvin JJ.
    OLAFF JOHNSON v. THE CLEVELAND,LORAIN & WHEELING RAILWAY COMPANY.

      Oar repairer disregarding rules of R. R. Co. — R. R. Co. not responsible for injury — Contributory negligence — Conductor not superior of car repairer.

    'Where the rules of a Railroad Company provide that a car repairer, while under a car on the tracks, at work repairing the same, shall place blue flags on both ends of the car by day, and blue lights by night as a warning that he is under that car, and a repairer neglects to hang out these signals, but agrees with the conductor of the train that he shall protect him by not permitting any of the cars of his train to come on that track, and the re.pairer is injured by a car being pushed against the car under which he is working, he is guilty of contributory negligence in not observing the rules of the Company, and can not hold the Railroad Co. responsible for damages.
    A conductor is not a superior officer to the car repairer.
    Error to the Court of Common Pleas of Lorain county.
   Hale, J.

The case of Olaff Johnson against the Cleveland, Lo-rain & Wheeling Railway Company, on error A the court of common pleas, has been submitted. Johnson, the plaintiff in error, was the plaintiff below, and sought to recover compensation for personal injuries which he received while in the employment of the Lake Shore and Michigan Southern Railway Company,caused as he alleges by the negligence of that Company. On the side tracks of the C. L. & W. railway, south of the crossing of the Lake Shore tracks at Elyria, a car belonging to the Lake Shore Railway Company was standing, which needed repairs. Athough the car belonged to the Lake Shore Company, it was to be used upon the C. L. & W. Railroad, and before being used by that company was to be repaired.

Johnson was in the employment of the Lkke Shore Company, his duties being to repair cars in that locality that could be repaired while standing upon the track.

He undertook to repair this car, and while under the car a train that was being made up on the C. L. & W. Railway under the charge of a conductor, switched some cars upon the track where this car was standing, moved the car, killing the conductor, who was under the car at the time, and severely injuring Johnson.

On the trial of the case it was shown that there was a rule of both companies requiring the repairers of cars thus situated to put on each end of the car being repaired a blue flag in the day time and a blue light at night, and a further rule requiring all employes of the company not to move the 'car on which there were such signals, the signals indicating there was a man under the car.

Johnson did not put out the signals; he was, under the car without obeying the rule of the company requiring those signals to be placed upon the car.

On the trial of the case there was an offer to show on the part of the plaintiff that he omitted those signals from the car by reason of the direction of the conductor of the O. L. & W. train, or in pursuance of a conversation he had with him, in which the conductor agreed to watch and keep other cars from this one under which Johnson was doing his work, and advised and ordered him to dispense with the signals. That proof was rejected by the court.

Evidence was permitted in the case that this conductor directed the brakeman to watch him for signals, and not watch for the flags.

The proposition then is that Johnson, who was doing this work, could hold the company liable although he voluntarily dispensed with the signals which the rules of the company required and substituted a means of his own for his protection, which failed, and by reason of that failure he was injured.

It is argued also, that the conductor was the superior of Johnson, the repairer, and that Johnson was subject to his direction and control. We do not agree with counsel upon that proposition.

Johnson occupied no inferior position to the conductor, nor did the conductor have any control over him, and the case turns upon the proposition that I have named.

Now, we do not think,if that testimony had been allowed to go to the jury,it would in any way have helped the plaintiff.

A. L. Webber and Lee Slroupe, for plaintiff in error.

JE. 6r. Johnson and J. M. Lessic7c,for defendant in error.

Indeed, with the proposition out that the conductor of the O. L. & W. train was the superior of Johnson with the right to control him, the fact that he had arranged with the conductor to watch his car instead of putting up the signals required by the company, would have a tendency to prove the negligence and carelessness of Johnson rather than the company.

If he set aside the rules of the company, and relied upon something he himself had devised, it would be a very good reason why he should not hold the company responsible.

Again, if, as he says, he was relying upon the conductor to protect him while under the car instead of the flags, it seems that the work was of such a nature as required help, and that the conductor went under the car to aid Johnson in his work, so that he knew when the injury happened, he was receiving no protection from the conductor’s eye, and he knew he had omitted to put up the flags in accordance with the rules of the company.

The court charged the jury properly, as we think, that if this accident,whatever it was, -was caused by the neglect of Johnson to obey the rules of the company in placing the flags upon the car, and the want of these signals contributed to the injury, that he could not recover.

We think that the correct result was reached in this case. We do not see how any other result could be sustained.

The company has made ample rules for the protection of its employes, and had Johnson obeyed those rules, and the employes of the C. L. & W. had run the cars down on to a car on which signals were placed according to the rules of the company, then he would have had grounds upon which to call that company to an account for causing his injury. As the case stands we do not think he had any. The judgment therefore of the court of common pleas is affirmed.


text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    HENRY B. POLLMAN v. E. CORA JAMES.

      Recognizance in Bastardy — Forfeiture—Application of money paid in on forfeited recognizance on judgment.

    Where in a bastardy proceeding defendant fails to appear, the court may proceed to trial of the case in his absence, and on verdict and judgment against such defendant the amount of the recognizance forfeited and paid into court, may be applied to on the judgment in the case, under Section 5623, Rev. Stat.
    Error to the Court of Common Pleas of Hamilton Coauty.
   Smith, J.

It appears from the record and bill of exceptions, including the amended transcript of the journal entries of the court of common pleas, that the plaintiff in error, in a bastardy proceeding brought against him before Esq. Glass, was ordered on March 1, 1898, to enter into a recognizance in the sum of $500.00, for his appearance before the court of common pleas at the next (April) term to answer to such charge. That he failed to do, and he was committed to the jail of the county. That on the 11th of March he gave such recognizance before one of the judges of that court,and was discharged. At the April term, 1893, the cause was continued by a genera] order of the continuance of all cases not disposed of, and at the July term by a like order again continued. There is nothing in the record to show that the defandant was or was not present to answer-to his recognizance at either of these terms, and it should be proved that he was, otherwise the court might have forfeited the recognizance. The continuance having been entered at the April and July terms, under the provisions of section 5621, Revised Statutes, such continuances operated as a renewal of the recognizance to remain .in full force until final judgment.

Wm. Disney, attorney for plaintiff in error.

Shay, Cogcm & Jackson, attorneys for defendant in error.

At the October term, 1893, the case was duly assigned for trial on October 23, 1893. The defendant did not appear, and his recognizance was forfeited, and the case ordered to be tried by a jury. A trial was had, the judgment entry showing that the parties, by their attorneys, appeared. A trial was had on October 23, and the verdict of the jury was that the defendant was guilty, as charged. On the- next day a motion for a new trial was filed by the defendant,which, on November 4, was overruled by the court, and the defendant was adjudged by the court to be the reputed father of the child, and that he stand charged with the maintenance hereof in the sum of $300.00, and that he pay the costs. “And it further appearing to the court that the recognizance of the said defendant had been forfeited, and that the amount of said bond, to-wit, the sum of $500.00, is in the hands of the court, it is ordered that the same be applied to the payment of the judgment. To all of which defendant, by his counsel, excepted.

A bill of exceptions was then allowed, which contains the statement that neither the defendant or his counsel was present when the bond was forfeited, or when the trial was had, the latter statement being in conflict with the terms of the judgment entry.

But this was deemed to be a matter of no importance, for if the case was continued at the April and July terms, as was done, the recognizance having been regularly forfeited, as was done, the court, under section 5625, had full power and jurisdiction to order the trial of the case, and to render judgment thereon.

It would appear from the judgment of the court, that after the recognizance was forfeited, the amount thereof was paid into court. Uuder section 5623, the court had the right to order that it be applied upon the judgment &s was done. The judgment will therefore be affirmed.


author: Marvin, J.

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Caldwell, Hall and Marvin, 'JJ.
    FANNY WRUBEL v. GEO. V. MUTH.

      Lease — Repudiation of contract and abandonment of premises before term expires — Remedy of lessor.

    Where a party guarantees the performance of the conditions of a lease by the lessee, but afterwards repudiates the contract, and the lessee abandons the premises before term expires, the lessor can not bring successive suits against the guarantor for installments of rent as they accrue, but his remedy lies in one action for the entire damages sustained by the repudiation of the contract.
    Error to the Court of Common Pleas of Cuyahoga county.
   Marvin, J.

This case is here upon petition in error, Suit was brought by Fanny Wrubel against George V. Muth, in the court of common pleas of this county, in which the plaintiff set out that she made a lease in 1891 to one Abraham Acnovich, of certain real estate in this city for the period of five years, at a rental of $10 per month, payable monthly in advance; that George Y. Muth indorsed upon that lease these words, and that that was a part of the contract: “I hereby guarantee the payment of the rent within stipulated for the entire time of the lease, and further guarantee the. performance on the part of the lessee, his heirs and assigns, of all the conditions herein expressed; but it is expressly understood that if the said Abe Acnovich, lessee, should violate the obligations of this lease, or if the said lessee, Acnovich, fails to sell other beer, than the goods produced by George V. Muth as long as the same is marketable, then this lease shall be null and void as far as said lease is concerned, and the said George Y. Muth shall have full control of the same, and the said Muth alone being bound and being held as lessee. George V. Muth.”

These words are not exactly the words intended, Muth didn’t mean to say that if he “fails to sell other beer than the goods produced by George V. Muth;” he meant to say if he did sell other beer than' the beer manufactured by Muth, that then he should not be bound; then, Muth says, “this lease shall be null and void as far as said lease is concerned, and the said George V. Muth shall have full control of the same.” Clearly the word intended is “lessee,” and the parties treated it as meaning what I have suggested.

Muth’s answer to this petition admitted that the lease was made to Acnovich; that he, Muth, entered into this contract guaranteeing the full performance on the part of the lessee of the conditions of the lease to be performed by the lessee; that the lessee discontinued the use of the premises long before the expiration of the term — perhaps after a year or so; that he, Muth, placed other tenants into the occupation of the premises; that they paid a less amount than had been agreed upon in the lease, but whatever they did pay, he paid over to Fanny Wrubel, lessor, and later the premises were entirely abandoned because they became unfit for occupancy.

The case went to trial to a jury, and resulted in a verdict for the plaintiff, Fanny Wrubel, who is also plaintiff in error, for $146 or thereabouts.

The amended petition on which the case was tried,sets out that Muth abandoned the contract, repudiated the contract so far as he was concerned, and he in his answer gives certain reasons therefor, and says it is true he repudiated the contract.

Evidence was introduced on behalf of the parties. The bill of exceptions does not undertake to set out all the evidence, but simply sufficient to show how the claim of error arises. It sets out that evidence was introduced, tending to show that the allegations of the pleadings were true, and the contract of lease was offered in evidence.

The plaintiff further offered to show that in April, 1893, the premises having been vacated by the defendant, she placed one George Barnard in possession, who in turn later placed others in possession, trying to get all the rent she could out of the property. The plaintiff also introduced testimony to the effect that she refused to receive the key for said premises until April 15, 1893.

The court charged the jury concerning the measure of damages for failure to comply with the contract to make repairs, and also the measure of damages for the failure of defendant to comply with the contract of lease so far as failure to pay rent was concerned; and the jury found that the defendant made said contract of lease, and failed to comply with it.

The court charged the jury that the measure of damages on the lease, in case there should be a recovery, would be the rental agreed upon per month in said lease, to-wit: $40 per month. Contrary to the exception of plaintiff, the court also charged the jury that'in case the verdict should be found in her favor, that only damages for failure to comply with the covenant concerning repairs set forth in the lease, and the rental which accrued prior to the time of the filing of the petition in the case in.December, 1892, could be recovered. This was the limitation of the time for the recovery.

The plaintiff duly excepted to this portion of the charge, and claimed error on account of the same. The court would seem to have made that charge upon the idea that suit was brought for rents, and that suit could be brought and maintained month after month, for rents as they accrued, treating the lease as a continuing contract, and not a suit brought for damages because of the repudiation of the contract on the part of the defendant.

We think there was clearly error in that charge of the court. We think it is clearly a case where a suit could be brought for damages because of the repudiation of the contract by the defendant; that a single suit for the breach of that contract, not only could be, but was the proper suit to be brought, and therefore the court should not have limited the damages simply to that which accrued by reason'of the failure to comply with the covenant of repair and the rents which accrued up to the bringing of the suit, but should have allowed the jury to inquire what were the entire damages of this plaintiff for the breach of that contract. The petition is broad enough to justify that, and the court should have allowed the jury to consider that question. We think that is the question, and this question was decided by the Supreme Court of this state in James v. Allen County, 44 Ohio St. 226, where suit was brought by James against Allen county for wages under a contract whoreby James undertook to superintend the erection of a court house at Lima for the county of Allen, and at the end of two months from the time he was discharged from his employment he brought suit for two months’ wages. He maintained that suit and recovered a judgment for the wages for the period sued for.

He subsequently brought another suit for wages claimed to have accrued after the two months for which he had ' already obtained judgment. Our Supreme Court in that case, in a very elaborate opinion, held that he could not maintain the new suit; that he should have brought his suit inAhe first instance for the entire damages to him by reason of the breach of the contract on the part of the county; that he could not maintain the suit brought later. The opinion goes on to reason that multiplicity of actions would result, and it would encourage him in holding himself all the time in readiness to go on with that work. It seems to us that this plaintiff must have brought her suit as she did for the entire damages sustained by reason of the repudiation of the contract on the part of the defendant. She ought not to have held, and she did not hold that property all the time ready for this defendant to occupy. If she had done so she would have failed to make it earn what it could earn. In Sutherland on Damages, section 108, to which our attention is cited by counsel, the same position is taken. It is there said, that in such cases as this the damages may all be sued for in one action, and that the weight of authority seems to be that they must be so brought. According to the 44 Ohio St., James v. Allen County, supra, clearly the plaintiff ought to have brought such suit; and we think that case goes so far as to say she must bring suit in one action for all her damages. She did bring such suit, and was entitled to recover all the damages she sustained by reason of the breach of the contract, if she was entitled to damages at all. It seems to us that the court erred in that charge, and the case is reversed for that reason.

Chas. Zuolcer, Burton & DaJce, for plaintiff in error.

Kerruish, Chapman & Kerruish, for defendant in error.


text:
    (First Circuit—Butler Co., O., Circuit Court
    October Term, 1895.)
    Before Swing, Cox and Smith, JJ.
    MOREY, ANDREWS & MOREY v. DAVID PIERCE.

      Chattel mortgage given within two months before assignment for benefit of creditors — Lien as against operatives of mortgagor.

    Where a chattel mortgage, given within- two months before an assignment for benefit of creditors, is produced, it is incumbent on the mortgugee as against the lien of the mortgagor’s operatives for wages due under Section 6355, to show that such mortgage was given in good faith, not to create a preference among creditors, or to secure a pre-existing debt other than upon real estate for the purchase money thereof.
    Error to the Court of Common Pleas of Butler County.
   Smith, J.

We are of the opinion that under the facts disclosed in the bill of exceptions, it was incumbent on the plaintiff in error on the trial of the court of common pleas, in addition to the production of the notejjand chattel mortgage, which was executed to them by the assignor, a few days before the assignment, to show that such mortgage was obtained in good faith, and was not given to create a preference among creditors; or to secure a pre-existing debt, other^than upon real estate for the purchase-money thereof. The first clause of section 6355, provides that every person who shall have performed any labor as an operative in the service of the assignor shall be entitled to receive out of the trust funds, before the payment of other creditors, the full amount of the wages due to such person for such labor performed within twelve months preceding the assignment, not exceeding $300.00, And it was conceded .that the operatives in this case who were preferred to the mortgage claim, came within his provision. It is then stated in the succeeding part of the section that the foregoing provisions shall not in any way affect securities given or liens obtained in good faith, for value, but that judgments by confession on warrants of attorney, rendered within two months prior to the assignment, or securities given within such time to create a preference among creditors, or to secure a pre-existing debt, other than upon real estate for the purchase money thereof, shall be of no force or validity as against such claims for labor to the extent above provided, in case of assignment,” It would seem, therefore, that where it appears that operatives have such a claim, that the mere production of aunóte or mortgage given within two months prior to the assign-men, without any proof that it was obtained in good faith, or was not given to create a preference among creditors or to secure a pre-existing debt, is not sufficient to entitle^.it to priority over the claims of such operatives. The judgment of the common pleas will therefore be affirmed.

Morey, Andrews & Morey attorneys for plaintiff in error,

P. 6r. Berry, attorney for defendant in error.


text:
    (First Circuit—Clinton County, O.,—Circuit Court
    May Term, 1896.)
    Before Swing, Cox and Smith, J J.
    CATHERINE IRELAND v. F. M. IRELAND.

      Defective appeal bond — Failure to name obligees — May be amended under sec. 5114 Rev. Stat.

    Where, by a mistake, an appeal bond, attempted to be given in a case, is defective in not naming the obligees, and is therefore invalid, this would not entitle the appellee to a dismissal of the appeal as against a motion by the appellant for leave to file an amended appeal bond. The giving of an appeal bond is a “proceeding” which, under the broad terms of section 5114, Revised Statutes, the court has power to have amended.
    Section 5114, as to the correction of mistakes in appeal bonds, is not repealed by section 5233.
    Appeal from tbe Court of Common Pleas of Clinton County.
   Smith, J.

We have considered his case on the oral arguments submitted,and are of the opinion that the motion to dismiss the appeal should not have been granted.

It is true that no obligees are named in the bond for appeal executed by the defendants, and, therefore, that as it stands, it is utterly invalid as a bond, as no one would be entitled to sue upon it, and recover damages from the makers if they failed to abide and perform the order and judgment of the circuit court and pay all moneys, costs and damages which might be required of, or awarded against them by the circuit court, which was the condition of this bond, or what would have become a bond, if obligees had been named therein. And it may be conceded also, that the statute requires that such a bond for appeal be signed by one or more persons other than the appellant or appellants, against whom the decree sought to be appealed from was rendered. But the question still remains whether, if those defects in the bond attempted to be given, were the result of mistakes on the part of the appellants, or the officer whose duty it was to take and approve the bond,itisthe absolute duty of the court to dismiss the appeal, dr whether under our liberal statutes and practice, the mistake may not be corrected.

L, T. Neal and Clevenger, for motion.

Mapes, Savage & Smith, contra.

If it cannot be done under the provisions of section 5233, Revised Statutes, which was originally enacted March 23, 1852, (S. & 0. 1169), we think it may certainly be done, (if the result of a mistake),under the broad terms of section 5114, which gives to the courts the power, in furtherance of justice, to amend any proceeding (which the giving of an appeal bond is), by correcting a mistake in the name of a party, “or a mistake-in any other respect,” unless the passage of the act of March 23, 1852, now section 5233, gives the only cases in which appeal bonds may be corrected, and section 5114 is thus in effect repealed in so far as appeal .bonds are concerned, as is the claim of counsel for the appellees.

We understand this claim to be in direct conflict with several adjudications of the Supreme Court on this question. Section 28 Ohio St., 90; 31 Ohio St., 131; Do. 331. These cases in effect hold that section 5114 is still in full force as to the correction of mistakes in appeal bonds.

Entertaining these views, we would be disposed to hold that if a motion was filed by the appellants for leave to file an amended bond, supported by affidavits showing that the defects arose from a mistake (which appears almost self evident), that it should be allowed to be done.


author: Swing, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    April Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    ADAMS v. PARNELL.

      A suit for a forfeiture will not be entertained by a court of equity.'

    This plaintiff brought suit averring that defendant, her tenant, had failed to pay installments of rent due under the lease, and asking for a decree of forfeiture of the lease, and for re-possession of the premises.
    Held, That this was an attempt by a suit in equity to establish a forfeiture, and that such a suit can not be entertained.
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

This was an action in the court of common pleas by Ann Parnell against William H. Adams on a petition of which the following are material allegations:

That on the 28th day of June, 1892, being the owner of the house and lot No. 4, G-lenway avenue, in Cincinnati, Ohio, she leased the same to said Adams for he term of five years from the first day of July, 1892; that said Adams agreed to pay to her as yearly rent the sum of $150.00, after the first year the said sum to be paid in advance in monthly installments; that said Adams paid said rent for the first year, but that there is now due from him the rent for the months of October, November and December, 1893; that'she has demanded from him said rent, but that he refused and still refuses to comply with said demand. Wherefore she prays the court for judgment cancelling said lease, and that she may re-enter said premises and re-possess and enjoy the same as her former estate, and for other relief.

No demurrer was filed to this petition, but plaintiff filed his answer setting up facts, which, if true, would have constituted a payment of the rent claimed to be due.

Trial was had on the issues joined, the defendant demanding a jury, which the court refused, and judgment was rendered for the plaintiff. The court found on the issues joined for the plaintiff, and further found that defendant had forfeited all his rights under said lease, and that plaintiff has full right to re-enter upon said premises, discharged of said lease,and that plaintiff recover the possession of said premises free, and discharged of the lease, and that a writ of possession issue for said premises.

A motion for a new trial was ■ filed and overruled, and a petition in error was filed in this court, alleging that the judgment of the court of common pleas is against the evidence, and that the judgment should have been for said defendant below instead of for said plaintiff.

The real question presented for our determination is, whether a court of equity will entertain a suit for the forfeiture of a lease. It is a well settled rule of equity that it will relieve against a forfeiture,and all the works on equity devote considerable space to the consideration of the subject; but the law seems to be well settled that courts of equity will not enforce a forfeiture. 2 Story Eq., Section 1319: “It is a universal rule in equity never to enforce either a penally or a forfeiture. Therefore courts of equity will never aid in the divesting of an estate for a breach of a covenant on a condition subsequent, although they will often interfere to prevent the divesting of an estate for a breach of a covenant or condition.” Citing authorities.

Bispham on Equity, at page 268, says: “It is well - settled that a court of equity will not lend its aid actively to enforce a forfeiture,” and after citing the 57 Pa St., 65, continues: “But the prayer of the bill was refused on the express ground that a court of equity will never lend its assistance in the enforcement of a forfeiture, but will leave the parties to their legal remedies. ” But the author adds the following: “In some cases, however, the enforcement of a forfeiture may be regarded in equity with favor,” and cites the ease of Brown v. Vandergrift, 80 Pa. St., 142. This latter case is the only case that we have been able to find which makes any exception to he. rule announced by Story and Bispham. It was decided by almost the identical judges who decided the case in the 57 Pa. St., supra, where the general doctrine is announced,and it was decided without citing an authority to sustain the position.^

This judgment was placed upon the peculiar hardships of the ease, but I question whether it may be accepted as establishing a rule of equity that when there are hardships the general rule that equity will not interfere to enforce a forfeiture, but leave the parties to their legal remedies, will be departed from. It is, however, sufficient for this case to say that here there was no peculiar hardships connected with the case. It was simply a finding that three or four months rent had not been paid.

No forfeiture had been declared by the plaintiff, as she had a right to do, and no re-entry had been made or was attempted to have been made. There was simply a demand for the rent, not in the form necessary to declare a forfeiture.

In the 26 Ohio St., 375, Judge White says: “A court of equity sometimes relieves against forfeitures, but it is not the forum to which to resort to enforce them,” and while he cites no authorities, the learned Judge accurately states the law, as we think, and the textwriters and authorities accord with his statement of it.

If there could be any question as to whether the petition in this case was a suit to declare a forfeiture, of which we think there can be none, or whether it could not be regarded as a suit in ejectment, the judgment of the court would have to be reversed, for the defendant demanded a trial by jury, which was refused; and if the suit was one in ejectment, defendant was clearly entitled to a jury trial; but as said above, we don’t see how this action can be considered as any other than a suit to forfeit the lease.

Chester W. Merrill, for plaintiff in error.

Philip Roettinger, contra.

In our judgment the court had no right to render the judgment that it did in the case, and for that reason the judgment will be reversed and cause remanded for further proceedings.