author: I-Iouck, J.

text:
    PROVISION FOR TRANSPORTATION OF SCHOOL CHILDREN.
    Court of Appeals for Licking County.
    State of Ohio, ex rel Henry C. Keller, v. Board of Education of the Licking County School District.
    Decided, October 10, 1918.

      Schools — Pupils Must Attend School in Their Own District — Or Transportation Oan Not he Required.

    The statutory requirement that boards of- education of rural and village school districts shall transport to and from the school house pupils of the district who live more than two miles from the nearest school in the district in which they reside, does not require' that such transportation be furnished to children living in the district who are attending a nearer school in another district, and mandamus does not lie to compel provision of such transportation.

      Jones & Jones, for plaintiff in error.

      Charles L. Flory, Prosecuting Attorney, and Kibler & Kibler, contra.
   I-Iouck, J.

This is a proceeding in error, and is here from the common pleas court of Licking county. The suit is one in mandamus, in which the plaintiff in error here was the relator below. In the lower court trial was had, and the petition of the relator was dismissed. The pleadings, admissions and proof disclose the following facts: That the board of education of the Licking county school district has capacity to sue and be sued under the laws of Ohio; that Henry O. Keller is a citizen of Licking county, Ohio, residing in Eden township, and is the father of three children, of the ages of eight, ten and thirteen years, and that they live with him; that his residence is more than two and one-half miles from the nearest school house in said Eden township school district; that said children are all below the high school grade; that there is a school in the Mary Ann township school district nearer to the residence of the said Henry C. Keller than the nearest school in the Eden township school district, where he resides, namely, what is known as the Rocky Fork school, and that said children are now attending that school, which is more than two miles from the residence of said Keller; that the relator, on the 20|th day of December, 1915, made a demand on the board of education of the Eden township school district to transport his children to and from said Rocky Fork school, which it refused, and has neglected and failed to do; that on the-day of August, 1917, the relator, in writing, made a demand on the board of education of the Licking county school district to provide transportation for said children to and from said Rocky Fork school, which it refused, and has failed and neglected to do.

Under these facts and the law, was the relator entitled to a writ of mandamus against the board of education of the Licking county school district, compelling it to transport the children of said Keller to and from said Rocky Fork school? If this inquiry is answered in the affirmative, then the judgment below must be reversed, otherwise affirmed.

Counsel for the plaintiff in error urge, in their written brief and in oral argument, that under Sections 7735, General Code, and 7731, General Code (107 Ohio Laws, p. 625), that the relator is entitled to the relief sought in his petition.

The first section reads:

“When pupiis live more than one and one-half miles from the school to which they are assigned in the district in which they - reside, they may attend a nearer school in the same district, or if there be none nearer therein, then the nearest school in another school, district, in all grades below the high school, in which eases the board of education of the district in which they reside must pay the. tuition of such pupils, without an -agreement to that effect”. * * *

A careful reading of the language thus used fully convinces us that the provisions of this section of our school law have no application to the conceded facts in the case now under review. The purpose and intention of our Legislature in enacting the above statute is clear and manifest from the language employed, namely: “When pupils live more than one and- one-half miles from the school to which they are assigned in the district in which they reside,” etc.

In such cases the board of education must pay the tuition. In the present ease the children reside more than one and one-half miles from a school in the Eden township school district, the one in which they reside.' Therefore, if Rocky Fork school is the nearest to them, they are at liberty to attend that school, and their tuition must be paid by the Eden township school district to the Mary Ann township school district.

This section of the’statute makes no reference to the subject of transportation of pupils, and has, as we view it, no application to the facts in the instant case.

The rule is well known that courts have no function of legislation. They can not supply or take from the language used in an act of the Legislature, and thereby change the plain meaning of the language contained therein, and by so doing read something into the law which was not intended. The Legislature must be understood to mean and intend what it has plainly expressed in the language used, and the intent to be ascertained and enforced is the intent expressed in the words of the statute.

The relator further relied upon the provisions of Section 7731, General Code, which reads:

“In all rural and village school districts where pupils live more than two miles from the nearest school the board of education shall provide transportation for such pupils to and from such school. The transportation for pupils living less than two miles from the school house by the nearest practicable route for travel accessible to such pupils shall be optional with the board of education. When transportation of pupils is provided the conveyance must pass within one-half mile of the residence of such pupils or the private entrance thereto. When local boards of education neglect or refuse to provide transportation for pupils, the county board of education shall provide such transportation and the cost thereof shall be charged against the local school district.”

The provisions of the above section of our school code require boards of education of rural and village school districts to transport pupils residing in such, districts, who live more than two miles from the nearest school, to the nearest school in the district in which they reside. It does not require such boards of education to transport pupils outside of the district in which they live. Therefore, we hold that the provisions of the section of the school code just referred to are not applicable to and have no bearing upon the facts in the case at bar.

Where a relator seeks a peremptory writ of mandamus, his right to same must.be founded on a clear legal claim, and the natural justice of it must be apparent, and the facts alleged by the relator must be clearly proved, or the writ must be refused. Applying this rule to the ease under review, we find the relator has not made out a ease, under the facts and law, which would entitle him to the relief sought in his petition, and that a peremptory writ in mandamus was properly refused by the common pleas court.

Judgment affirmed.

Powell, J., and Shields, J., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    RIGHT TO COMMENT ON FAILURE TO PRODUCE EVIDENCE.
    Court of Appeals for Hamilton County.
    The Cincinnati Traction Company, a Corporation, etc., v. Selma Muenchow, as Administratrix, etc.
    Decided, February 4, 1919.

      •Evidence — Counsel may Comment on Faihire of Opponent to Call Certain Witnesses — Argument may he Illogical Without Being Prejudicial.

    Argument to the jury to the effect that counsel for the defendant had failed to produce certain witnesses, at his command but unknown to the speaker, whose testimony had they been called might have had an influence favorable to the plaintiff, is not ground for reversal. '

      E. Kenneth Rogers, for plaintiff in error.

      Littleford & Ballard, contra.
   Per Curiam.

The defendant in error recovered a judgment in the court below against the plaintiff in error for causing the death of Gotthelf Muenchow. The sole error complained of is that counsel for plaintiff below was permitted to argue to the jury that they had the right to conclude from the fact that defendant’s conductor had taken the names of twelve witnesses and had only produced four that the evidence of at least one of the others would have been adverse to the company in one of the issues in the case.

Counsel had a right to comment upon the failure to produce evidence within the apparent control of the adverse party, and if his argument was illogical it was not the duty of the court to correct him. Thompson on Trials, Sections 983 and 989. The trial court was correct in refusing to rule as requested by defendant’s counsel.

Judgment is affirmed.

Jones, P. J., Hamilton, J., and Shoi-il, J., concur.


author: Grant, J.

text:
    SETTING ASIDE ORDER OF COURT AFTER TERM.
    Court o£ Appeals for Cuyahoga County.
    Seville H. Morse v. Frank Homan, A Minor, By Frank Homan, Sr., His Father and Next Friend.
    Decided, June 17, 1918.

      Judgment in Favor of a Minor — Released, by! Entry of Satisfaction— Vacation of Entry after Term Held to be Without Effect.

    The vacation of an entry of satisfaction is without effect where made after term and without' following the course prescribed by the statute, whether regarded as a reversal or modification of the judgment or order of court to which it is directed, or as a reform'ation of a written instrument of release.

      Hoyt, Dustin & Kelley, For Plaintiff in Error.

      H. L. Deibel, Contra.
   Grant, J.

Error to the municipal court of Cleveland.

The transcript of entries in this case, so far as these are deemed material to the present consideration, shows that the action was begun in the court below by the defendant in error, on the 15th of June, 1915. Being a minor, his suit was begun, and has since been prosecuted, by his father as his next friend, agreeably to the statute permitting an infant’s action to be so brought and litigated.

The claim was for personal injuries sustained by the minor, and a trial of the issue resulted in a judgment in his favor in the sum of one thousand dollars. The sum was paid to the father as next friend, whereupon the latter in due form receipted the docket and entered a full satisfaction and discharge of the judgment, executing such release in the name of the plaintiff infant.

On May 21, 1917, about two years after the rendition of the judgment and the entry of its payment, satisfaction and discharge, the plaintiff below filed his motion in the municipal court, asking that the entry of satisfaction referred to be vacated, for two reasons. The first was that the entry of discharge, being made by the next friend of the minor plaintiff, was invalid in law, as being without authority existing in the receipter. The second assigned reason was to the effect that the plaintiff had in fact receivd no part of the judgment money, while the entry of satisfaction stood in the way of his enforcing it a second time by execution against'the original defendant, Mrs. Morse.

This motion was not made by the plaintiff in the action, although it ran in his name. It was made by one Emslie — who was no party to the suit and who had not asked to be made a party,- — purporting to be acting as guardian of Frank Homan, the infant plaintiff, but who had not intervened in the action in any way and was not issuably or properly before the court.

Notice of the filing and pendency of the motion was given to the defendant below.

The municipal court entertained this motion, and on the 19th day of November, 1917 — two years and five months after the rendition of the judgment — the entry to which this proceeding in error is addressed was made, as follows:

‘ ‘ Said entry of satisfaction is' hereby vacated and set aside to the extent of $800 and interest from June 15, 1915 and plaintiff is hereby permitted and allowed to issue execution on said judgment to the extent only, however, of $800|, and interest from June 15,1915, and no more, the remaining $200 of said judgment of $1000 having by stipulation of the parties herein been rightfully paid to and retained by Messrs Schwan and Schwan, the original attorneys of record for the plaintiff herein; and upon precipe filed by the plaintiff herein, or his attorneys, execution is ordered to be issued on said judgment to the extent of $800.”

An exception was saved to this deliverance of the court, and also to the denial of a motion for a new trial of whatever was heard in the proceding thus narrated. What was done in this respect by the municipal court is assigned as error in this proceeding by the plaintiff here, and a reversal of it is for that reason asked.

It is an undisputed rule of the common law that courts of record have plenary control of their own judgments, entries and processes, during the term at which they were made. This principle is fully recognized in Ohio: Niles v. Parks, 49 O. S. 370.

It is equally true that at common law this control passes from the court with the term at which the judgment was rendered, the entry made, or the process issued.

It is said in Black on Judgments, Section 306:

‘ ‘ It was the rule of the common law, that after the expiration of the term the court loses control of its judgments rendered during that term; they become final, and the court has no longer the power to vacate or modify them, or to set them aside.”

In Brown v. Schulten, 104 U. S., 410, the court says:

“It is a general rule of the common law that all the judgments, decrees, or other orders of the courts, however conclusive in their character, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and they may then be set aside, vacated, modified or annulled by that court. But it is a rule equally well established, that after the term has ended all final judgments and decrees of the court pass beyond its control, unless steps be taken during that term, by motion or otherwise, to set aside, modify or correct them; and if errors exist, they can only be corrected by such proceeding as a writ of error or appeal as may be allowed by the court which by law can review the decision.”

Most states, including Ohio, have by statute given a remedy against the hardship which must sometimes result from this loss of power to vacate or modify judgm'ents after the term at which they are entered, and this relief must be sought within such limits as the enabling statute may prescribe. In this state thq power is conferred and the procedure regulated by Chapter 6, Title 4, Division 4 of the present General Code, beginning with Section 11631. That section authorizes a court to “vacate or modify its own judgment or order, after the term at which it was made,” on ten enumerated and specific grounds. The further proceedings may be by motion where the infirmity alleged is a mere irregularity or clerical error not going to the substance of the former rendition. Where the claimed vice in the judgment resides in the merits of the case, the adjudication of vacation or correction must be upon pleadings issuably presenting the question raised.

None of the ten grounds assigned by the statute existed, or was claimed to exist in this case in invoking an interference with the entry of satisfaction undertaken to be vacated by the action of the municipal court in the proceeding now under review.

The syllabus in Assurance Co. v. Raper, 78 O. S., 113, is authority for holding that “the power of the court of common pleas to vacate its judgment after term upon motion is controlled by Section 5354 R. S.” — present Section 11631, General Code; and the case holds that the burden is on the mover to show that the irregularity occurred before or at the taking of the judgment.

A judgment, as defined by statute in Ohio, “is the final determination of the rights of the parties. A direction of a court or judge, made or entered in writing and not included in a judgment, is an order.”

If then, what the court below undertook to do in the matter we are now reviewing was to vacate its own judgment or order, it was without power to do it and its action in that behalf was inert and a nullity. And this is so because the judgment or order — if such it was — which the court undertook to disturb, had long before passed from its inherent control and the only method allowed by law for regaining that control was not pursued or pretended to be pursued.

If what the court attempted to vacate was not a judgment or order, but was a part of its process or entries in the case, — -in short, if it was any judicial act or evidence of it, — then it still must fall under the condemnation of the common law rule laid down in Black and already referred to, to the effect that the control ends with the term of rendition.

There is a provision of statute, — General Code, Section 11705, —which specifically authorizes a court to vacate an entry of satisfaction of a judgment rendered in the same court. But its operation is limited to the one contingency of a plaintiff in execution. ordering in good faith a levy on property not subject to it, and which has thereupon been sold and applied on the judgment and a recovery has been had by the proper owner from the execution plaintiff and the latter has paid to to the former. In such case the court may, upon motion and notice to the judgment defendant, have the satisfaction so made out of the sale of' the property set aside, and he shall thereupon be entitled to collect the judgment. But the right conferred by that section does not extend to the ease of the execution plaintiff losing or otherwise disposing of the money once collected by him and in consideration of which he entered satisfaction of the judgment — such loss of the money being one of the findings of fact in the case at bar, in support of the judgment vacating the entry and permitting execution to issue for a part of the amount of the judgment.

There is a case in Ohio, Wilson v. Stilwell, 14 O. S., 464, in which was done exactly what was-done in this case; that is, on motion an entry of satisfaction of a judgment, was vae-ted and execution was awarded.

Whether this was done at or after term does not specifically appear in the report of the case. The judgment was rendered at the December term, and the motion to vacate was made in the March following. From the nearness of these dates to each other the probability is that the motion was within the term. And this seems to be made certain from the fact that the court deduces its power to act from the following recitation of the law- — -“Every court has control over its process, and of entries upon its record,” —a control which it does not have after the term at which the thing ashed to be vacated became effectual in law as the act of the court, under the common law rule already referred to.

That the remedy was sought by motion and summarily, is an infirmity noticed by the court but which is obviated by the consideration that, as no objection on that ground was made, the point was deemed to have been waived. Moreover, a clear ease of fraud was made out in the ease, and upon equitable grounds the judgment of vacation proceeded. We can find no such grounds in the present ease.

Indeed the judgment under review here was made upon no other purported footing than that the money was paid to the next friend who instituted the suit and recovered the judgment, but who, as the court below holds, was not entitled to receive the proceeds of it or to give acquittance for it.

Of course if the thing vacated was any part of the judicial doings in the case, this conclusion has no force after the term at which it was done — the mode and limitations prescribed by statute in such cases not having been followed by the mover or observed by the court.

If the entry of satisfaction was obtained by fraud or was the result of a mutual mistake, an appropriate remedy could be invoked and advanced; but that is not this case.

It is difficult to see at this point of the proceeding why two hundred dollars worth of the satisfaction vacated should be allowed to stand, if the satisfaction as a whole was without warrant of law and a mere nullity, as having been made by one not entitled to make it. If the division into eight parts of unlawful payment and two parts of lawful is put upon the ground that the question was adjudicated in the Schwan case, no reason is perceived why the immunity allowed to the attorney should not extend to the client in the same action.

There is a recitation in the “conclusions of law” in the record to the effect that the abatement of the two hundred dollars was made “by stipulation of the parties herein,” which is not, however, among the conclusions of fact in the record; and the only “parties herein” to do the stipulating, are the plaintiff below, that is, the minor by his next friend, who is found by the court to have been incapable of taking the judgment money and by the same token unable to stipulate it avray — and the defendant, who is objecting to this view of the inability of the father to act in receiving and giving acquittance for any of the proceeds of the judgment.

It is urged in the brief of the judgment debtor that the next friend was competent to take the money and give the release, not only to the extent of his attorney’s fees, but for the entire amount. And in the opinion of the Schwan case it was intimated that the law is to the contrary, although the point was not decided. A further examination of the subject leads us to think that the question is at least doubtful. In some of the cases it was not really raised; they are either eases where there was a regular guardian already appointed and both capable and ready to take the fund, or where the next friend compromised the judgment instead of receiving the avails of it in full; such was the fact in Sltihvell v. Wilson, supra, the judgment plaintiff in that ease being only in form entitled to bring the action.

But we do not find it necessary to decide this question.

We find and hold that if the purported vacation of the satisfaction was a reversal or modification of any judgment, order or other process or entry of the court in the cause, it was too late to be effectual, the course prescribed by statute not having been observed or followed; and that if the purported action of the court was a reformation of a written instrument or release, such effect could not be wrought upon motion only, made after term, not in 'manner and form provided by law for the purpose, and over the objection of the adverse party. Upon either alternative the court was without power to do what it undertook to do by the order under review.

The judgment is for that reason reversed and judgment for costs is here rendered for the plaintiff in error.

Lawrence, J., and Dunlap, J., concur.


author: Metcalfe, J.

text:
    CONTRACTOR COMPLETING THE WORK ENTITLED TO LIEN.
    Court of Appeals for Mahoning County.
    Minnie Silver, et al v. J. V. Thomas et al.
    Decided, June 18, 1918.

      Mechanic’s Liens — Contract Awarded to Partners — One Abandons the Work, the Other Goes on and Completes It — Latter May File a Mechanic’s Lien — Which Does not Depend upon the Contract, but on the Fact that Labor and Material were Furnished — Judgment may be Entered for Plaintiff after the Granting of Motion for a New rial, When.

    1. When a contract to make an excavation to a building is let to a co-partnership, but before the work is completed one of the partners refuses to proceed and abandons the contract, but the other partner carries it on to completion, the latter is entitled to a mechanic’s lien on the property in his own name.
    2. The provisions of G. C. 8312 (103 O. L.., 369), “until the statements provided for in this section are made and furnished in the manner and form as herein provided * * * the sub-contractor shall have no right, of action,” etc., does not require the sub-contractor to furnish such statements directly to the owner unless required by such owner to do so. It is sufficient for him to furnish such statements to the original contractor, and it is his duty to furnish them to the owner.
    3. When the undisputed facts shown in the trial of an action entitle the plaintiff to judgment, it is not error for the trial judge, after granting a motion for a new trial, to render judgment for the plaintiff upon such facts.

      L. L. George, for plaintiff.

      J3. M. Brown, contra.
   Metcalfe, J.

This action was begun by the defendant in error, Thomas, to foreclose a mechanic’s lien against the property of the defendant below, Minnie Silver.

Mrs. Silver is the owner of a lot in the city of Youngstown and she entered into a contract with one Katzman to erect a building thereon. Katzman sub-let the excavation of the basement to the defendant, Ralph Maso, and Maso sub-let the contract to Thomas & Keegan, a co-partnership.

After the work had begun Keegan, Mr. Thomas’ partner, refused to go on with the work and thereafter Thomas continued it alone to its completion, and afterwards took out a lien upon the premises in his own name and not in the name of the partnership.

It is insisted that the lien should have been taken in the name of the co-partnership, and not in the name of Thomas alone, and that by reason thereof the lien is invalid.

The right to a mechanic’s lien does not depend upon contract, but depends upon the fact that the plaintiff who claims the lien furnished labor and materials that entered into the construction of the building. The contract gives him the right to do the work, but, after he has completed it, it is the law that gives him the right to the lien. We think it makes no difference that the contract was with the firm. After the work was commenced, but before it was completed, one of the partners dropped out of it and the other carried it forward to completion. We think he is clearly entitled to take out the lien in his own name.

But it is insisted that the law was not complied with by Mr. Thomas by reason of the fact that he did not give any notice to the owner of the work and labor performed and materials furnished by him.

We do not think the statutes require a sub-contractor to furnish any statement to the owner of the premises, unless he is required to do so by the owner himself. The language of the statute, Section 8312 General Code (103 O. L. 369), relied upon to sustain the contention of the plaintiff in error, Mrs. Silver, is as follows:

“Until the statements provided for in this section are made and furnished in the manner and form as herein provided, * * * the sub-contractor shall have no. right of action or lien against the owner, part owner, etc., * * * until he shall have furnished such statement.”

We have to look further to the provisions of the statute to find out what the “statements provided” for in this section are. The statute provides for certain statements which the original contractor shall make on his own account before he can require any payment of money on the contract, and then

‘ ‘ The original contractor shall also deliver to such owner, part owner, lessee or mortgagee similar sworn statements from each sub-contractor, accompanied by like certificates from every person furnishing -machinery, material or fuel to such sub-eon-tractor. ’ ’

It seems to us clear, from the provisions of Section 8312, that the sub-contractor is required to furnish the statement named only to the original contractor, and that the duty does not rest upon him to make any statement whatever to the owner, unless .such owner requires him to do so. This seems to us to be made clear by the following provision in the same section:

“In order that the owner, part owner, lessee, mortgagee, or a contractor may be protected, he or his agent may at any time during the progress of the work demand in writing of the contractor, or any sub-contractor, any or all statements herein provided for, which shall be made by the contractor or sub-contractor and given to the owner * * * within ten days after such demand is made.”

"We think that when Mr. Thomas made the statements required by the statute and delivered them to the original contractor he fully complied with the law.

Another question is raised in this ease which is of some interest. The question of the amount of the indebtedness in favor of Thomas against Mrs. Silver was submitted to a jury. After the verdict was rendered the trial judge granted a new trial, and thereupon on his own motion rendered judgment in favor of the plaintiff for the amount of his claim.

It is urged that this was error, but, upon the undisputed facts as they appear from this record, there is no question of the right of the plaintiff to recover. We think, therefore, that the defendant below could not have been prejudiced by the action of the court.

Therefore, the case is affirmed.

Pollock, J., and Farr, J., concur.


text:
    INSUFFICIENT PUBLICATION OF NOTICE.
    Court of Appeals for Cuyahoga County.
    The State of Ohio, ex rel Paul Ciraci, v. E. J. Kehres.
    Decided, December 23, 1918.

      Village Contracts — Advertisement for Bids for Public Work — Construction of the Provision as to Time Found in the Statute — Discretion of a Mayor as to the Signing of a Contract.

    Mandamus does not lie to compel the mayor of a village to sign a contract which has been entered into by council for a public improvement, where the advertisement calling for bids for the proposed work appeared on the 7th and 11th and were opened on the 15th of the month.

      D. T. Miller and E. P. Wilmot, for plaintiff in error.

      Locker, Oreen & Woods, contra.
   Grant, J.

Heard on error to the court of common pleas.

The action below was in mandamus. The respondent is mayor of the village of East View. The council of the village, in form of law, declared it to be necessary to improve Kinsman road, one of its streets, at an estimated expense of nearly thirteen thous- and dollars, the fund to meet the expenditure being provided for as required by statute.

Notice that bids for the work would be received on April 15, 1918, at meridian, was published in a newspaper of circulation in East View; such publication being twice made, on April 4, and April 11, 1918, respectively, and at no other time. The bids were opened at the date named in the notice, namely, on April 15, 1918. Council of the village on July 15, following found that the relator was the lowest and best bidder for the work to be done, and thereupon awarded the contract to him and directed the mayor and clerk to execute it by signing it as provided by statute.

The mayor refused to do this, and the suit below was to compel him to do so or show cause why he should not.

For cause the mayor by answer, among other things, alleged that the relator was not the lowest and best bidder for the work; that another bid was seven hundred dollars lower than his bid, which lower bid was rejected by the council on the ostensible ground that the bidders — there were two of them — were subjects of Italy, although they had in due form of law declared their intentions to become citizens of the United States; that the action of the council in receiving bids on the day named and in assuming to award the contract as they did, amounted to an abuse of the discretion vested in them in the matter and so was wholly inoperative and of no effect.

To this defense the relator demurred. The demurrer was overruled, and the relator not choosing to plead further, judgment went against him dismissing his suit. Whereupon he prosecutes error to reverse that judgment.

The sole question here, therefore, is, was the demurrer properly overruled?

This question again is resolved into the further injuiry as to whether any discretion is lodged in the mayor as to signing the contract provided for him by the council, or as to withholding his signature.

For it seems certain that if he has discretion, while mandamus may compel him to exercise it one way or the other, he can not be compelled to exercise in one way or the other, he can not

The first proposition concerns the sufficiency of the notice as advertised in point of elapsed time.

The statute in that respect — Section 4221, of the General Code — is as follows:

“All contracts made by the council of a village shall be executed in the name of the village, signed on behalf of the village by the mayor and clerk. When any expenditure other than the compensation of persons employed therein exceed five hundred dollars, such contracts shall be in writing and made with the lowest and best bidder after advertising for not less-than two nor more than four consecutive weeks in a newspaper of general circulation within the village. The bids shall be opened at twelve o’clock noon on the last day for filing them, by the clerk of the village and publicly read by him. ’ ’

Without particular regard to the historical evolution of this section, our opinion is that its language, in the respect we are now discussing, furnishes a sufficient test of its application to the exigency confronted by' it. What constitutes a week is a matter of common knowledge; it means seven days in continuity of lapse. By the same token, two weeks are fourteen days,, one following upon another, in sequence of succession. We find no particular significance in the words “consecutive weeks,” as found in the section. A literal translation of ‘1 consecutive, ’ ’ is following next. The word throws no light on the question in hand to the effect of varying the definition already given.

To our apprehension, the really operative words which can resolve any doubt in the matter are “not less than.”

“Not less than” two weeks, — unless controlled otherwise by judicial construction — means not less than fourteen days, in a continuous following of one upon that which went next before it.

We feel that any ingenuity expended in coming to another conclusion, would be effort wasted, and work directed to no practicable end.

We have examined Gilfillan v. Koke, 2 O. D. Rep., 172, and Harmon v. Whittemore, 1 Bull., 107. In the former, the late Judge William Lawrence, with characteristic industry, examined the question and reached, substantially, the determination we have indicated as our own in this case. In the latter, the late Judge Hamilton, in this county, followed the former. Both seem to have been well considered.

If we are right about this, then the notice as published, was substantially insufficient and conferred no right on the council to open the bids and let the contract, at the time this was done. What the respondent was called upon to sign, therefore, was in no legal sense a contract.

It will be observed that the requirement of Section 4221 is that “all contracts” of the village shall be signed by the mayor. He is not called upon to execute a paper that is no contract. That amount of discretion in the nature of things must be, and unquestionably is, vested in him. His discretion in that respect can not be measured by that of the council, nor can he be controlled in its exercise by what the council may think is a suitable exercise of theirs.

Even if the mayor were to sign such a contract as we have found this one to be, his signature would give to it no vitality and impart no force; it would still be no contract, except as to the form. The enabling statute was still with an unperformed condition, the performance of which could alone create a validity in it.

Our conclusion is that the answer of the respondent stated a defence to the action, and that the demurrer to it was properly overruled.

It follows that there is no error in the record and the judgment under review must be affirmed.

Dunlap, J., and Washburn, J., concur.


text:
    DUTY OF GUARDIAN TO PAY TAXES ON WARD’S PROPERTY.
    Court of Appeals for Trumbull County.
    Frank Raub v. Mary Appleby et al.
    Decided, October 11, 1918.

      Guardian and Ward — Relation of Trust and Confidence — Prevents Divesting of Title of Ward — In Property Acquired by Guardian at Delinquent Tax Sale.

    It is the duty of tbe guardian of a tenant in common, who is under mental disability to pay tlie taxes on the ward’s property, and such guardian can not acquire title to the common property by allowing ' the taxes to become delinquent and then purchasing the same at a tax sale, and the same rule applies to a tenant in common who is in possession of the property.

      G. P. Gillmer, for plaintiff.

      J. E. Leffingwell, contra.
   Metcalfe, J.

This action was brought in partition by the plaintiff in error, Frank Raub, against the several defendants to partition certain lands in the city of Niles.

The mother of both the plaintiff and defendants died seized with the property in question. By the terms of her will the land was to be divided equally among the children.

The will provided, also, that so long as any of the children remained unmarried such unmarried child or children should have the right to occupy the property, and the duty of paying the taxes and assessments of all kinds was imposed upon the one so occupying the property.

All the plaintiffs and defendants had either died or married excepting Hannah and Lizzie Raub. Hannah is under mental disability, and Mary Appleby is her guardian. Hannah and Lizzie had the right to occupy the premises, and the duty rested upon them jointly to keep up the taxes and assessments.

The taxes, however, were allowed to become delinquent, and the premises were sold at delinquent tax sale and bought in by Mrs. Appleby while acting as such guardian for Hannah. The tax deed is conceded to be in conformity to the law, and under ordinary circumstances would convey a good title.

The question here is whether or not Mrs. Appleby, being a tenant in common with the other parties in this case and guardian of one of the defendants upon whom rested the duty to pay such taxes could, by allowing the taxes to become delinquent, acquire title to the premises at a delinquent tax sale.

We are firmly of the opinion that under the circumstances such a transaction is not authorized by law, and that a deed obtained under these circumstances does not, as against the other tenants in common vest any title in Mary Appleby whatever, beyond a lien upon the land to the amount of the taxes which she paid.

In the ease of Clark v. Lindsay, 47 O. S. 437, the widow of a decedent was entitled to dower in lands of her deceased husband, and the duty of paying the taxes rested upon her. She allowed the taxes to become delinquent and the property was sold and purchased by one of the devisees, or heirs, who was tenant in common with the other parties in the case. Judge Diekman, writing the opinion of the court, uses this language:

‘£ The auditor’s deed under the statute vests in the grantee, his heirs and assigns £a good and valid title, both in law and in equity,’ but the question arises, whether by virtue of the tax sale and the auditor’s deed, J. W. Clark was divested of all interest in the land upon his failure to redeem his separate interest from his co-tenant within two years. In our view th,e relations existing between tenants in common, whether in possession of the property or entitled to an estate in remainder, is of a nature to preclude such a result. Just dealing and the confidence necessarily reposed in each other would suggest that owners in common of real estate should consult for the mutual benefit. While one should not act intentionally to the detriment of the other, good faith should withhold him from all actions in reference to the common property that would work exclusively to his own advantage. ’ ’

The opinion then quotes approvingly the following language from Tisdale v. Tisdale, 2d Snead 599:

‘ ‘ Tenants in common by descent are placed in confidential relations to each other by operation of law as to the joint property, and the same duties are imposed as if a joint trust were created by contract between them, or the act of a third party. Being associated in interest as tenants in common by descent an. implied obligation exists to sustain the common interest. This reciprocal obligation will be vindicated and enforced in a court of equity as a trust. These relations of trust and confidence bind all to put forth their best exertion and to embrace every opportunity to protect and secure the common interest and forbid the assumption of a hostile attitude by either.”

Our attention is called to the case of Jinkiaway v. Ford, decided by the Supreme Court of Kansas, L. R. A. 1915-E, 343, and it is urged that that case sustains the plaintiff’s position. We do not think so. In that case the title to the property was acquired by a remainderman who was not in possession and was under no obligation to pay the taxes, but that is quite a different proposition from the one we have before us. Mrs. Appleby was a tenant in common; was under personal obligations to pay her share of the taxes; and under legal obligation to pay the taxes for her ward.

To allow her under such circumstances to acquire title-to the common property would be to allow her by her own wrong to obtain an advantage over her co-tenants which the law will not permit.

Judgment of the lower court affirmed.

Pollock, J. and Farr, J., concur.


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

text:
    new york;stock exchange membership taxable IN OHIO.
    Court of Appeals for Hamilton County.
    John M. Anderson v. Peter W. Durr, as Auditor, et al.

    Decided, February 3, 1919.

      Taxation — Seat in a Stock Exchange is Personal Property — And Subject to Taxation in Ohio.

    1. A membership in the New- York Stock Exchange is property in the nature of a chose in action.
    2. Such property is taxable at the domicile and residence of the owner and the laws of Ohio subject it to taxation.
    3. The Constitution of Ohio imposes on the General Assembly the duty to pass laws taxing all property with certain named exceptions. This requires the enactment of laws to carry it into effect.

      4. In construing a statute passed pursuant to such provisions the court imputes to the General Assembly the intention to comply with the constitutional requirement.

      Murray Seasongood, for plaintiff.

      John V. Campbell, Prosecuting Attorney, and Walter M. Loche, Assistant Prosecuting Attorney, contra.

       For opinion below see 20 N.P.(N.S.), 538.

   Shohl, J.

This is an action in which plaintiff seeks to enjoin the auditor of Plamilton county from listing on the tax duplicate as taxable property plaintiff’s membership in the New York Stock Exchange, and to restrain the treasurer from collecting taxes thereon.

The case was heard on appeal, and there was a stipulation as to the facts in addition to' the admissions in the pleadings.

The plaintiff is, and has been for a number of years, a member of the New York Stock Exchange, an unincorporated association of eleven hundred members. It owns the entire' capital stock of the New York Stock Exchange Company, a corporation which holds title to real estate in New York City, and certain other stocks and securities. It furnishes exchange rooms and other facilities, in New York City, for the convenient transaction of brokerage business by members. The right conferred by the membership is to trade in accordance with the regulations which now authorize trading at the exchange in New York City, and not elsewhere, in certain securities listed on said exchange according to certain conditions, and at certain hours. Persons are admitted to membership only upon the vote of two-thirds of the fifteen members comprising the committee on admissions. They pay annual dues, and there is a life insurance feature for the benefit of their families. A transfer of membership may be made -upon the submission of the name of the candidate to the committee on admissions and the approval of the transfer by two-thirds of the committee. There are no stock certificates but persons elected are notified by letter signed by the secretary. The exchange has regular meetings at which officers and committees are elected, and they manage the business of the association. The plaintiff paid over $60,000] for his seat. It has a market value, and, subject to the acceptability of the transferee to the committee on admissions, is transferable by sale. The market value ranged from $60,000 or thereabouts in 1911 as low as $34,000 in 1914 to over $70,00(0 at the present time. Under the rules of the Exchange members charge their customers not less than one-eighth of one per cent, as commission for purchases and sales of securities. When such purchaser is another.member, however, he may purchase for a commis sion of one-fourth the regular amount, and in certain cases for one-fiftieth of one per cent. In the ease of removal or suspension of a member, or at his death, his seat is sold and the net proceeds of such sale, after satisfying’the claims of such creditors as are members, are paid over to the member or his personal representatives.

Plaintiff contends that the membership is a privilege incident to real estate in New York, that it is an incorporeal hereditament, and therefore not taxable in Ohio; second, that even if it is property in Ohio, it is not within the terms of the statute specifying the property which should be listed for taxation; and, third, that if the property were taxed in Ohio it would violate constitutional rights.

There is no question but what a seat on. a stock exchange is property. It is conceded by counsel, and the authorities are clear. Rogers v. Hennepin County, 240 U. S., 184; Page v. Edmunds, 187 U. S., 596 (Philadelphia Stock Exchange); Sparhawk v. Yerkes, 142 U. S., 1 (New York Stock Exchange); Hyde v. Woods, 94 U. S., 523 (San Francisco Stock and Exchange Board); In re Currie, 185 Fed., 731; O’Dell v. Boyden, 150 Fed., 731; Bank v. Abbott, 181 Mass., 531; State v. McPhail, 124 Minn., 398; Powell v. Waldron, 89 N. Y., 328; Platt v. Jones, 96 N. Y., 24.

It is not taxed in New York under the general laws (People v. Feitner, 167 N. Y., 1), though it is taxable under the New York inheritance tax law. Matter of Hellman, 174 N. Y., 245.

In the Rogers case, 240 U. S., at page 189, the court cites with approval the language of the Minnesota case as follows:

“A membership has a use value and a buying and selling or market value. It is bought and sold. * * * There is a lien upon it for balances due members * * * It passes by will or descent or by insolvency or bankruptcy. * * * It is true that there are certain restrictions in the ownership and use of a membership. These may increase or decrease its value, probably in the case of a board of trade membership greatly enhance it. They do not prevent its being property.”

The exact nature of the property arising from membership in a stock exchange has not been conclusively adjudicated by the Supreme Court. In support of the argument thaft it constituted real estate in New York, reference was made by plaintiff to the case of Louisville Ferry Company v. Kentucky, 188 U. S., 385, holding that the ferry franchise granted .by the state of Indiana was an incorporeal hereditament, and therefore not taxable in Kentucky. -On first impression there are points of similarity between a membership in a stock exchange and a ferry franchise. The rights to exercise the incidents of membership as to buying and selling stocks and securities are with respect to a specific piece of real estate in New York City, at least the present rules of the Stock Exchange so indicate. A careful analysis of the Louisville Perry Company case shows, however, that the decision rests primarily upon historical reasons. See pp. 394, 395. The reference in Kent’s Commentaries and Washburn on Real Property show this, and the court points out that a widow has been allowed dower in a ferry.

The law of incorporeal hereditaments is a relic of medieval law. Pollock and Maitland’s History of English Law, pp. 123-148, shows how the jurists of earlier days regarded certain rights with respect to land as “things.” Tiffany on Real Property, pp. 9-13, shows the modern laiv and summarizes as follows : :

“We find the only things of this nature recognized in this country are rights as to the use or profits of another’s land, and franchises, or certain classes of franchises, and consequently these together with land and things annexed thereto (corporeal things real) are among the subjects of real property.”

There is no authority and no justification for any extension of the law in respect to incorporeal hereditaments to adjudge a stock exchange membership to be realty. It does not descend to the heirs of the owner. The title to the land on which the business is done is held in fee simple in the realty corporation, The unclouded title could be conveyed away by it without the plaintiff’s consent. It is urged that the ownership of all the stock in the realty company is a mere form, and that plaintiff’s, interest is substantially in real estate. This is no more true than a similar claim with respect to the right of a share holder in any realty company. Such stock is personalty no matter what the corporation owns. Morawetz on Corporations, Section 225; Hawley v. Malden, 232 U. S., 1, 12; Lee v. Sturges, 46 O.

S., 153, 161.

The nature of a membership in an exchange was before the Supreme Court in the case of Rogers v. Hennepin County, 240 U. S., 184. The question involved theré arose in connection with the taxability of a membership in the Chamber of Commerce of Minneapolis. -The tax authorities were claiming that memberships were taxable in Minnesota. If such memberships constituted incorporeal hereditaments and were therefore realty,, it would have been very simple for the Supreme Court to have said so and to have decided the ease upon that ground. At. page 191 the court uses the analogies of a credit in favor of a non-resident and of shares Of stock. We do not regard the right as being in the nature of an incorporeal hereditament, but that does not dispose Of the question. There is no doubt that a state law which attempts to tax personal property, permanently situated in another state, is void. Southern Pacific Company v. Kentucky, 222 U. S. 63, 74; Western Union Telegraph Company v. Kansas, 216 U. S., 1; Metropolitan Life Insurance Company v. New Orleans, 205 U. S., 385; Union Refrigerator Transit Company v. Kentucky, 199 U. S., 194; Delaware, etc., R. R. Co. v. Pennsylvania, 198 U. S., 341; State Tax on Foreign-Held Bonds, 15 Wallace, 300.

Under the Rogers case, 240 U. S., 184, the memberships could be taxed in New York. That does not necessarily prevent it from being within the power of the state of Ohio to tax them, Fidelity & Columbia Trust Co. v. Louisville, 245 U. S., 54, 58; Blackstone v. Miller, 188 U. S., 189, 204, 205.

In Hawley v. Malden, 232 U. S., 1, in distinguishing the Louisville Ferry Company case from the case of a share of stock, the Supreme Court says at page 12:

“While the shareholder’s rights are those of a member of a corporation entitled to have the corporate enterprise conducted in accordance with its charter, they are still in the nature of contract rights or dioses in action. Morawetz on Corporations. Section. 225. As such, in the absence of legislation prescribing1 a different rule, they are appropriately related to the person of the owner, and, being held by him at his domicile, constitute property with respect to which he is under obligation to contribute to the support of the government whose protection he enjoys. Kirtland v. Hotchkiss, 100 U. S., 491; Bonaparte v. Tax Court, 104 U. S., 592; Covington v. First National Bank, 198 U. S., 100, 111, 112; Southern Pacific Company v. Kentucky, supra; Cooley on Taxation (3d ed.), 26.”

The rights of a member of a stock exchange likewise entitle him to have the enterprise conducted in accordance with its regulations and purposes, and, are likewise in the nature of contract rights or choses in action. The right to go to the Exchange Building on "Wall street and there buy- and sell is no doubt the most important incident of the membership, but the right to “split commissions” and the right of a member to procure the service of other brokers at a lower rate are also’ valuable rights. They follow him wherever he goes. The relationship between the members is governed by the constitution of the exchange, which every member is required to sign. By such signature he “pledges” himself to abide by the same and by all subsequent amendments thereto. The basis of his rights therefore is a contract, a chose in action.

The situs of an ordinary chose in action is well settled. It is regarded as property where the obligee is. In the ease of State Tax on Foreign Held Bonds, 15 Wallace, 300, the court considers the suggestion that a debt is property where the debtor is. At page 320 the court says:

“To call debts property of the debtors is simply to misuse terms. All the property there can be in the nature of things in debts of corporations, belongs to the creditors, to whom they are payable, and. follows their domicile, wherever that may be. Their debts can have no locality separate from the parties to whom they are due.”

The normal situs, for purposes of taxation, of choses in action is at the domicile of the owner. Southern Pacific Co. v. Kentucky, 222 U. S., 63, 76; Union Transit Co. v. Kentucky, 199 U. 8., 194, 205; Bonaparte v. Tax Court, 104 U. S., 592; Kirtland v. Hotchkiss, 100 U. S., 491; Cooley on Taxation, 89-93, 650, 651.

As this property is in the nature of a chose in action, it is taxable at the domicile of the owner. It has been established that, under certain exceptional conditions, choses in action may be given a situs for taxation elsewhere. Hawley v. Malden, 232 U. S., 1, 12; Liverpool, etc., Insurance Co. v. Orleans Assessors, 221 U. S., 346; Metropolitan Life Insurance Co. v. New Orleans, 205 U. S., 395; Blackstone v. Miller, 188 U. S., 189; Kidd v. Alabama, 188 U. S., 730; New Orleans v. Stempel, 175 U. S., 314; State, ex rel Goetzman v. Lord, 161 N. W., 516.

In the Hawley case the court states that the question does not arise there, and need not be decided, whether the provision by the state of incorporation, fixing the situs of shares for the purpose of taxation there, excluded the taxation of the shares by other states in which the owners resided. The case of Fidelity, etc., Trust Company v. Louisville, 245 U. S., 54, probably ends the doubts on this point. But in the case at bar no such provision is involved. The normal situs for taxation at the domicile has therefore not been disturbed. It follows that the state of Ohio has the power to impose a tax upon plaintiff’s membership in the New York Stock Exchange.

Section 2 of Article XII of the Ohio Constitution imposes upon the General Assembly the duty to pass laws taxing all property at its true value in money, with certain exceptions. This requires the enactments of laws to carry it into effect. Zanesville v. Richards, 5 O. S., 589, 593; Exchange Bank v. Hines, 3 O. S., 1. Unless statutes were passed which did include the property in question, it is not taxed. Whitely v. Arbogast, 6 N.P(N.S.), 313; 9 C.C.(N.S.), 584 (affd. 79 O. S. 429).

The question then is, have laws been passed taxing property of this character?

In the case of Gould v. Gould, 245 U. S., 151, the court states that in the interpretation of statutes imposing taxes it is the established rule not to extend their provisions by implication beyond the clear import of the language used, nor to enlarge their provisions so as to embrace matters not specifically pointed out. In cases of doubt they are construed in favor of the citizens. The statutes there involved were passed pursuant to constitutional provisions that enabled the Legislature to enact statutes. A special rule applies where the Legislature is passing statutes which it is specifically required to enact. The purpose of the framers of the Ohio statutes must be interpreted in view of that constitutional duty.

In the case of Lee v. Sturges, 46 O. S., 153, 159, the court says:

“ It is clear that the purpose of section one is to tax all investments in stocks held within the state. This we are bound to assume, for every presumption is in favor of that construction of the law which gives effect to the requirement of the section of the Constitution referred to, and we are forced to the conclusion that the General Assembly, in enacting this law, intended, so far as the complex nature of human business affairs should make it practicable, to include within the taxing provisions all property within the state.”

T-he precise distinction seems to have been in the contemplation of the court in the case of Cincinnati v. Connor, 55 O. S., 82, 91, wherein the court says:

“The rule generally prevails that, independent of any legislative requirement on the subject, statutes imposing taxes and public burdens of that nature are to be strictly construed; and where there is ambiguity which raises a doubt as to the legisla.tive intent, the doubt must be resolved in favor of the subject or citizen on whom the burden is sought to be imposed. ’ ’

Section 5328 of the'General Code provides:

“All real and personal property in this state, belonging to individuals or corporations, and all moneys, credits, investments in bonds, stocks or otherwise, of persons residing in this state, shall be subject to taxation, except only such property as may be expressly exempted therefrom. Such property, moneys, credits, and investments shall be entered on the list of taxable property as prescribed in this title.”

"We have already decided that a seat on the stock exchange constitutes personal property in this state. It is taxable, therefore, unless Section 5328 is limited by Section 5325. Section 5325 defines personal property, and, being in pari materia, the two sections must be construed together. Cincinnati v. Connor, 55 O. S., 62, 89. If therefore “personal property” as used in Section 5328 includes only the enumerated items set forth .in Section 5325, it may be difficult to find it specified therein. A majority- of the .court are of the opinion that it might be included under the phrase “the capital stock, undivided profits, and all other means not forming part of the capital stock of every company, whether incorporated or unincorporated, and every share, portion or interest in such stocks, profits or means by. whatsoever name designated.” I can not agree with them as to that.

The entire court is in agreement as to the following. Section 5325 provides “the term ‘personal property’ as so used shall include,” * * * Then follows an enumeration of certain forms of property. This does not exclude the property in question. If the statute had been passed pursuant to constitutional provisions which merely authorized or empowered the levying of a tax, we would be disposed to hold that other kinds of property were excluded by the rule of “éxpressio uwius est exclusio alterius.” However, the Legislature was required to pass laws subjecting all real and personal property to taxation. The effect to be given to this is well stated by the Supreme Court of Minnesota. That state had a constitutional provision substantially like that of Ohio. In the ease of State v. McPhail, 124 Minn. 398, in discussing whether a seat of the Duluth Board of Trade was taxed, the court says:

“Section 797 names 11 specific classes of personal property, in no one of which are by name included board of trade memberships. So far as here material, its language is as follows: Personal Property * * * shall be construed to include:
“1. All goods, chattels, moneys and effects.” Then follows ten other particular classes of property.”
“Section 835 provides that the assessor shall fix the value of the items of personal property under thirty heads, the last of which is ‘the value of all other articles of personal property not included in the -preceding items. ’
“We think it should not be held that Section 797 was intended to describe all personal property that was subject to taxation. The language of the section does not compel such a conclusion. ‘Shall be construed to include’ does not necessarily mean ‘shall only include.’ The section was not intended to be restrictive, but rather to help define what was meant by ‘all personal property,’ as that term is used in Section 794. -The view is greatly strengthened by the unquestioned fact that it is the settled policy of the stae, as expressed in is Constitution, statutes, and decisions, that all property within the state shall be taxed, unless exempt. Board of County Commissioners of Rice County v. Citizens National Bank of Faribault, 23 Minn., 280, 286; State v. Jones, 24 Minn., 251; County of Olmstead v. Barber, 31 Minn. 256; 17 N. W., 473, 944; In re Jefferson, 35 Minn., 215, 219, 28 N. W., 256; State v. Stearns, 72 Minn., 200, 222, 75 N. W., 210. In the Rice County ease, decided in 1877, in referring to Section 1, c. 1, p. 1, Laws 1874, which provides that “all real property in this state, and all personal property of persons residing therein, * * * is subject to taxation’ the Court said: ‘The evident purpose of this section was to declare, in general terms, that all property, both real and personal, within the jurisdiction of the state, unless specifically exempted, should be subject to taxation.’ In State v. Jones, where it was decided that a certain debt was property and subject to taxation, Chief Justice Gilfillan said: ‘This debt was property, and it was the intention both of the Constitution and statute that all property, unless expressly exempted, should be taxed.’ At the time these and other decisions were rendered, there were in force statutory provisions similar to Section 797, Laws 1874, p. 1, c. 1. Section 3, provided that ‘personal property shall, for the purpose of taxation, be construed to include’ certain described classes of property, and the same provision was contained in chapter 1, Section 3, Laws 1878, in chapter 11, Sections 3 G. S. 1878, and in Section 1510, G. S. 1894. In no case has it been considered that these provisions amounted to a declaration that no property was to be taxed that was not covered by the classes. It would have been a breach on the part of the Legislature of a duty imposed by the Constitution to omit from taxation property that'was not exempt, and we certainly should not find such a breach unless the statute is fairly open to no other construction. ’ ’

Unless the statute is fairly open to no other construction, we should not impute to the Legislature an intention to omit from taxation property which the Constitution requires it to tax.

The application for an injunction must be refused, and the petition will be dismissed.

Jones, P. J., and Hamilton, J., concur.

Opinion on Application por Re-hearing.

(Decided, February 20, 1919.)

*Murray Seasongood, for plaintiff.

Louis H. Capelle, Prosecuting Attorney, and 8. G. Roettinger, Assistant Prosecuting Attorney, contra.

Shohl, P. J.

Although the constitutional question was considered by the court, no specific reference was made to it in our former opinion. The matter is discussed in the eases there cited, particularly in the ease of Rogers v. Hennepin County, 240 U. S. 184, at pages 191, 192. It does not appear that the other forms of property are exempt in Ohio, and if they were the Rogers case disposes of the effect of such discrimination on the constitutionality of the law.

The application for re-hearing will be denied.

Hamilton, J., concurs; Cushing, J., not participating.


author: Hamilton, J.

text:
    FORFEITURE BY DELINQUENCY OF RIGHT TO FRATERNAL BENEFITS.
    Court of Appeals for Hamilton County.
    George H. Geis, Administrator, v. The Order of United Commercial Travelers of America, etc.
    Decided, June 24, 1918.

      Mutual Benefit Societies — Forfeiture for Delinquency — Statutory Authority for such a Provision — Acceptance of Overdue Premiums— Does not Work an Estoppel against Denial of Liability under the Policy, When.

    1. The general rule that forfeitures are not favored and that by-laws providing therefor will be so construed as to avoid forfeiture if the language employed will admit of such construction, is without application in the case of a beneficial order operating on the assessment plan, where the constitution and by-laws provide that, in case of delinquency in the paying of assessments and by virtue thereof, members in default forfeit at the time of its occurrence all right to indemnity or benefits of any character, and the laws.of the state provide that the constitution and rules of the order shall constitute a part of the contract of agreement between the order and its members and officers of subordinate bodies are deprived of all power or authority to waive the said provisions.
    2. Acceptance of payment of previous delinquent assessments does not estop the order from denying any right of recovery in case of a member whose death occurred during the period of such delinquency, no steps having been taken to restore him to good standing.

      Horace A. Reeve, Howard N. Ragland, attorneys for plaintiff in error.

      John A. Millener, supreme attorney; John C. Hermann, of counsel for defendant in error.
   Hamilton, J.

Catherine Geyer, widow of Henry Clay Geyer, brought suit in the common pleas court of Hamilton county to recover on a policy of life insurance issued by the defendant company on the life of her husband who died November 1, 1915. Catherine Geyer has since died, but the case was revived in the name of plaintiff in error, her administrator.

The case was submitted on an agreed statement of facts, and the court found in favor of the defendant company, from which judgment error is prosecuted to this court.

The defendant company is a fraternal beneficial order, operating' on the benefit assessment plan and the payment of semiannual membership dues.

It is agreed that Geyer had paid all semi-annual membership dues to Janutry 1, 1916, and all assessments levied for insurance up to and including assessment No. 128, which was paid by Geyer August 23, 1915; that on September 24, 1915, insurance assessment No. 129 was called by the defendant, which was due and payable on or before October 24, 1915; that this assessment of two dollars was not paid or tendered on or prior to October 25, 1915,, nor prior to his death, which occurred November 1, 1915, in an automobile accident, nor has said sum been paid or- tendered since his death. It is further agreed that Geyer paid four insurance assessments after the dates upon which the same became due, but that neither the Supreme Council, nor any of its members had any knowledge of the fact that Geyer had paid any of his assessments to the secretary-treasurer of the subordinate council after the time had expired within which he should have paid the same; that the constitution and by-laws have been duly and regularly adopted and were in full force and effect.

Proofs of death were made, and payment of the policy demanded, which was refused on the ground that failure to pay assessment No. 129 worked a forfeiture of all rights and benefits under the policy.

The question for determination is, Did the failure to pay assessment No. 129, as above set forth, preclude a recovery under the policy?

It is urged by plaintiff in error that the law does not favor forfeitures, and that by-laws providing therefor will be construed to avoid forfeitures if the language employed therein, considered in connection with the other by-laws, will admit of such construction.

As a general statement of the law this is correct, but in applying this general rule to the instant case, will the language of the by-laws admit of such construction?

Section 9469 General Code provides:

“Every certificate issued by any such society shall specify the amount of benefit provided thereby, and shall provide that the certificate, the charter, or articles of incorporation of, if a voluntary association, the articles of association, the constitution and laws of the society, and the application for membership and medical examination, signed by the applicant, and all amendments to each thereof, shall constitute the agreement between the society and the member, and copies of the same certified by the secretary of the society, or corresponding officer, shall be received in evidence of the terms and conditions thereof, and any changes, additions or amendments to such charter or articles of incorporation, or articles of association, if a voluntary association, constitution or laws duly made or enacted subsequent to the issuance of the benefit certificate shall bind the members and his beneficiaries, and shall govern and control the agreement in all respects the same as though such changes, additions, or amendments had been made prior to and were in force at the time of the application for membership.”

Section 9481 General Code provides:

‘ ‘ The constitution and laws of the society may provide that no subordinate body, nor any of its subordinate officers or members shall have the power or authority to waive any of the provisions of the laws and constitution of the society, and the same shall be binding on the society and each and every member thereof and on all beneficiaries of members. ’ ’

These sections clearly bind the members of the society, including Geyer, to the express wording of the constitution and by-laws.

Section 7 of the constitution and by-laws provides (p. 56) :

“Any member who fails to pay fees, fines, costs dues, or any assessment charged or levied against him, when and as the same become due and payable, shall immediately upon the happening of such default and by virtue thereof, become a delinquent member; and he and every person or persons claiming under him and by virtue of his membership and his certificate of insurance shall likewise at the time such default occurs and by virtue. thereof, forfeit all right to indemnity and benefits of whatever character; * * *”

This language is clear and unambiguous, and is a part of the certificate of insurance.

Upon default of payment of assessment No. 129 on or before October 25,1915, under section 7 of the constitution and by-laws, Geyer ipso factor became delinquent, and all rights under his certificate were forfeited. Under the terms of the by-laws a member thus delinquent may restore himself to good standing by paying all sums due, before the next regular meeting of his subordinate council. On failure to make such payments the member shall be suspended. It will be noted that forfeiture of rights under the. certificate of insurance does not depend upon suspension, but is dependent only upon delinquency. It is admitted that neither Geyer nor any one for him paid or tendered the sums assessed at any time after his becoming delinquent, and under the by-laws he was delinquent at the time of .his death.

Page 2 of the insurance certificate under the head of “Delinquency” stated:

“Should such delinquent member at any time regain his good standing as an insured member in the Order his restoration thereto shall be in no wise operate to entitle him or any one claiming by, through, or under him, or his membership, or his certificate of insurance to indemnity or benefits on account of any accident or injury received by him, while not in good standing, or on account of death resulting therefrom.”

In applying Section 9469 General Code, in the case of Pete v. Woodmen of the World, 5 C. C. (N.S.) 453, the court says:

“The stipulations in the application and certificate, together with the provisions of the laws of the association quoted constitute the essential terms of the contract between the insured and the association necessary to be considered by us, and by which the beneficiary is bound. It is well settled by the authorities that all of these rules, these laws of the Order, constitute a part of the contract binding upon the insured. It is well settled by the authorities that under circumstances like these shown in the record here, the insured is conclusively presumed to have known what these laws were and what they required of him.”

To this effect was also the holding in the ease of Chevaliers v. Shearer, 6 C. C. (N.S.), 587.

We are therefore of the opinion that the trial court was correct in holding that all rights under the certificate of insurance were forfeited, and in finding in favor of the defendant.

Plaintiff in error makes the further point that the defendant, by reason of accepting the payment of some four prior assessments after the time limit, was estopped to insist upon forfeiture; that they do not claim a waiver, but they undertake to distinguish between waiver and the common law doctrine of estoppel.

Since waiver is not claimed by the plaintiff in error we are unable to see how the doctrine of estoppel could be applied to this case. If the defendant is estopped to claim a forfeiture of rights under the certificate of insurance, it must be on the ground that, by action or conduct, some of the provisions of the constitution and by-laws, or some of the terms of the certificate of insuranee, which provide for forfeiture, have been waived, since the provisions referred to are broad, comprehensive, clear, and unambiguous.

In the case of Order of United Commercial Travelers v. Young, 212 Fed. Rep., 132, the court clearly states the law on this question of waiver and estoppel. The first paragraph of the syllabus in that case is as follows :

“The secretary-treasurer of a local council of a fraternal insurance order has no authority to waive the constitution and by-laws of the order stipulating for payment to a beneficiary a specified sum on the death of a member in good standing, but that members shall be deemed in good standing so long only as they pay dues and assessments as they become due, and that any member failing to pay them at maturity, shall by virtue thereof, forfeit his good standing, and a practice between the local officer and a member thereof for the payment of dues and assessments after maturity is not binding on the Order unless authorized or ratified.”

For the reasons above stated, and upon the authorities cited, the judgment will be affirmed.

Jones, P. J. and Wilson, K, concur.


author: Kunkle, J.

text:
    LIABILITY TO A REAL ESTATE BROKER FOR A COMMISSION ON A SALE WHICH FAILED.
    Court of Appeals for Franklin County.
    Thomas C. Jamison v. Richard A. Harrison, Jr.

    Decided, February 19, 1919.

      Broker’s Commission — Owner Liable Therefor — Where Sale Fails Through Inability to Give Title — Presumption Upon Which the Broker May Rely.

    1. A real estate broker who undertook to procure for a property owner “a purchaser who would be ready, willing and able to buy” the property in question at a specified price, is' entitled to his commission upon producing such a purchaser, notwithstanding the sale failed through inability of the party. with whom he contracted to give title.
    2. The broker in such a case has a right to rely on the presumption that the party contracting with him will be able to perform his part of the contract and furnish title to a prospective purchaser.

      Wilson & Sector, attorneys for plaintiff in error.

      James A. Allen, contra.

      Reversing Jamison v. Harrison, 21 N.P.(N.S.), 266.

   Kunkle, J.

This is an action to recover a broker’s commission. The case was submitted to the lower court upon a demurrer to the petition of plaintiff in error. The demurrer was sustained and final judgment rendered. From such ■ judgment plaintiff in error prosecutes error to this court.

The petition alleges that on or about the first day of May, 1918, the plaintiff entered into a contract, not in writing, with filie defendant, by the terms of which plaintiff agreed to procure for defendant a purchaser who would be ready, willing and able to pay at the rate of $175 per acre for certain real estate in which the defendant had an undivided one-fourth interest and which real estate is described by metes and bounds.

The petition further states that defendant agreed to pay plaintiff for his service in procuring such purchaser the sum of $2,115.75, said sum being three per cent, of said sale price of the farm; that on or about June 15, 1918, the plaintiff procured a purchaser for said farm who was ready, willing and able to buy the same and to pay therefor at the rate of $175 per acre; but the defendant upon being notified by plaintiff that such purchaser had been procured, failed, neglected and refused to contract with said purchaser for the sale of said farm or cause the same to be sold or conveyed to him for said consideration.

Plaintiff therefore asks judgment in the sum of $2,115.75.

This ease must be determined from the particular contract alleged to have been entered into by the said parties.

The plaintiff agreed: “To procure for defendant a purchaser who would be ready, willing and able to buy at the rate of $175 per acre the real estate in question.”

The petition alleges that the plaintiff “Did procure a purchaser for the said farm who was ready, willing and able to buy the same and to pay therefor at the rate of $175 per acre.”

It is in effect admitted that the averments of the petition are sufficient to charge the defendant with liability if the defendant had been the sole owner of the real estate in question.

It is contended, however, by defendant that plaintiff is not entitled to recover, because the plaintiff knew that the defendant was not the sole owner of the property, but owned only a one-fourth interest therein, and because it does not affirmatively appear from the petition .that the defendant was authorized by his co-tenants to employ the plaintiff as a broker to find a purchaser for the entire property in question and to complete a sale in the event such purchaser was secured.

Counsel for defendant in error among other authorities cites Sections 183, 186 and' 256 of Mechem on Agency and quotes therefrom as follows:

“Where several persons having common interests desire to be represented by an agent, it is, in general, true that one of such persons has no implied power to appoint an agent for all, and that all must unite in making the appointment. Each may appoint for himself or all unitedly may appoint for all, but one has no implied power to appoint for another or for all.
“In the case of co-tenants, there is no implied authority in each to act for all so as to bind them personally, and the act of one, or the appointment of an agent by one will, therefore, bind that one only.
“In the first place it is to be recalled that, except in the few eases already referred to wherein the law confers authority, the law itself makes no presumption of agency; it is always a fact to be proved; and the person who alleges it has the burden of proving it by a preponderance of the evidence. ’ ’

We think the above citations would apply in a case where the contract was sought to be enforced against third persons, but would have no application in the present case where the plaintiff does not seek to hold anyone except the person with whom he made the contract.

AVe think it is well established that where a party employs a real estate broker to find a purchaser for certain real estate upon certain terms, and the broker secures such a purchaser and the sale is not completed because of the fault or inability of the party so contracting with the broker, then the broker would be entitled to recover. This doctrine is applied in cases such as where the party so contracting with the broker does not own the property or where there is a defect of title. 202 N. Y. Reports, p. 293; 202 N. Y. Reports, p. 423; Vol. 19, Cyc., pp. 246-7-8, etc.; Vol. 4, Ruling case Law, Section 51; 41 N. Y., p, 477.

The broker has a right to rely upon the presumption that the party contracting with him has the ability to perform the contract and furnish a title to the prospective purchaser.

This rule is well stated in the ease of Arnold v. National Bank of Waupaca, 126 Wis. Reports, page 368, namely:

“It is entirely clear, as already stated, that, if an individual employs an agent to find a customer for certain lands, he becomes liable for the agreed compensation, whether he owns them or not, although he may have acted on the mistaken supposition that he had title. He impliedly represents that he does own them.” See also 16 Oklahoma Reports, p. 308.

In the case of Martin v. Ede in 103 Calif. Reports, at page 160, the following rule is announced in the syllabus viz:

“Under a written authority to a real estate broker to obtain a purchaser for land at a stated sum, within a specified period, for an agreed commission, in order to entitle the broker to recover the commissions agreed upon, it is only necessary to show that, in pursuance to the employment, and within the time specified therein, he found a purchaser ready and willing to purchase the property upon the terms specified in the authorization.
‘ ‘ A real estate broker has nothing to do with the title or ownership of the property, and his knowledge as to the title, or the equitable estate of a third person therein, is of no consequence; and his right to the compensation contracted for does not in any way depend on the validity or invalidity of the defendant’s title to the property.”

The judge, in announcing the opinion of the court, says:

“To entitle plaintiff to recover his commissions under the agreement, it was only necessary to show that in pursuance of his employment, and within the time specified therein, he found a purchaser ready and willing to purchase the property on the terms specified in the authorization. This he did beyond dispute.
“With the title or ownership of the property he had nothing to do, and his knowledge as to the title or the equitable estate of Josephine Cory therein was of no consequence. These were questions for the defendant to determine when he made the agreement.
“It is a matter of common knowledge that, in the business world, men do frequently- obtain what are termed options upon real property — that is to say, the right to purchase, and then employ brokers to negotiate a .sale at an enhanced price, the title being all the while in others.
“Brokers sell tons of wheat for future delivery on account of principals who do not or may not own a kernel of that commodity; yet in the absence of law prohibiting knowledge of the non-ownership of their principals does not defeat their right to recover.
“A may possess such knowledge as justifies him in this judgment in contracting to sell, or in contracting with a broker to sell for him or to find a purchaser for property which he does not own. If he does so, without so guarding his agreement as to save himself, in ease of failure to secure title to the thing he has authorized to be sold, he can not be heard to complain of the result of his own folly or lack of foresight.
“If A is employed by B to labor at a monthly stipend upon land which they both know B does not own, and the services are performed in consonance with the contract,- a recovery can not be defeated by such knowledge on the part of A. ’ ’

If the correct rule in such cases does not favor the broker to the extent announced in the above case, nevertheless it does not appear from the petition in the case at bar that plaintiff had knowledge that the defendant would be unable to convey or secure the conveyance of the property in question to the prospective purchaser.

It does appear from the petition that the plaintiff knew that the defendant merely owned a one-fourth interest, but nevertheless we think the plaintiff had a right to assume that the defendant had or would secure authority from his co-tenants, which would enable him to carry out the provisions of the contract which he himself made with the plaintiff, and we also think the plaintiff had a right to act upon the assumption that the defendant had or would secure from his co-tenants authority to carry out the contract if a purchaser was secured upon the terms specified in the contract.

There are some cases which hold that where a broker has knowledge of defective title, and the sale is defeated because of such defect, the broker can. not recover, but without expressing any opinion upon that question, we think the same would be a matter of defense. 16 Oklahoma Reports, 308.

We have carefully considered the authorities cited and have also examined a number of additional authorities relating to the subject of brokers’ commission, but as there is such a difference in the terms of employment many of the cases so examined are of no special benefit in determining the rights of the parties in the case at bar.

We think the plaintiff has stated a cause of action in his petition and that the demurrer should have been overruled.

The judgment of the lower court will therefore be reversed and cause remanded.

Allread and Ferneding, JJ., concur.


author: Ferneding, J.

text:
    CONSTRUCTION OF NOTICE CLAUSE IN ACCIDENT INSURANCE POLICY.
    Court of Appeals for Montgomery County.
    John Roehm v. American Casualty Company. John Roehm v. Employers Liability Assurance Corporation.

    Decided, August 6, 1918.

      Accident Insurance — Provisions with Reference to Early Notice of Injury Liberally Interpreted in Case of Latent Injuries — Loss of Eye Sight which did not Develop for Ten Months.

    1. Under a policy of accident insurance which provides that no claim shall be valid “unless written notice is given * * * within thirty days from the date of sustaining injuries, fatal or otherwise (unless such notice shall be shown not to have been reasonably possible),” is open to the construction that a policy holder will not be required to give notice within thirty days after an accident, if no serious injury was indicated at the time of its occurrence; and where, the injury was to the eye sight, which did not become apparent until ten months later, liability attaches if notice was given as soon as the injury developed.
    2. Under a policy which provides that notice shall be given at the home office of the company within ten days from the date of the accident, but which contains the further provision that the full amount of the policy shall become payable in ease of irrecoverable loss of the entire sight within two hundred weeks, a policy holder sustaining an injury to his eye sight, which did not appear immediately but existed in a latent condition for a considerable period, will be held to be protected.

      Breene, Dwyer & Finn, Attorneys for Plaintiff in Error.

      McMahon & McMahon, Attorneys for Employers Liability Company.

      W. 8. Rhotehamel, Attorney for American Casualty Company.

       Affirmed by the Supreme Court April 2, 1919.

   Ferneding, J.

Both of these cases were brought upon policies of insurance covering accidental injuries.

The petitioners state that plaintiff on or about the —-day of June, 1914, while participating in a game of basket ball was accidentally struck a hard blow in the left eye and that- at the time no serious consequences were indicated from the injury.

He consulted a physician at the time, who, after examination, did not consider the injury -of a serious nature.

Sometime later, however, he consulted another physician and then learned that as a result of such accidental blow he had lost the greater portion of the sight of said eye. He thereupon immediately notified the company. The sight of this eye gradually diminished and finally failed entirely; it is further averred that as a result of said accidental injury the entire sight of both eyes was irrevocably lost.

The plaintiff avers in said petition that he was entirely without knowledge that said accidental blow had seriously injured his eyes until about the -- day of April, 1915, and that immediately upon receiving such notice, to-wit, April 15, 1915, he duly notified the insurance company.

The court of common pleas sustained demurrers to both petitions and the cases were brought here upon petitions in error.

The controlling question in both cases is as to the failure of the insured to give notice of the accident or injury, within the specified time mentioned in the policy after the accident.

The language of the stipulation in each of the policies as to notice being somewhat different the eases will be discussed separately.

The Employers’ Liability Insurance Corporation Case.

In this case the “notice” clause is as follows:

“No claim shall be valid on account of any injuries, fatal or otherwise, unless written notice is given to the corporation’s manager for the United States at Boston, Massachusetts, or to the agent of the corporation whose name is endorsed hereon, within thirty days from the date of sustaining any injuries, fatal or otherwise, (unless such notice may be shown 'not to have been reasonably possible), for which claim is to be made, with full particulars thereof and full name and address of the assured or beneficiary, as the case may be. ”

It will be observed that in. this ease there is no absolute requirement that the notice be given within thirty days after the accident.

This policy was evidently intended to provide against a harsh or strict construction of this clause and to allow a liberal construction in favor of the policy-holder in eases where “notice” within a limited period was not “reasonably possible.”

Counsel for both parties have been diligent in the citations and review of cases both from this and other states, but we think this case rests upon a reasonable construction of the saving clause in the condition above quoted.

This clause is presumed to have been an inducement for the issuing and acceptance of the policy, and, in view of the liberality allowed the policy holder by this clause, we think it would be a reasonable construction to hold that the policyholder would not be required to give notice within the thirty days after the accident, if no serious injury was indicated at the time of the accident.

The petition distinctly avers that while the plaintiff received a hard blow over the left eye, yet no serious injury was indicated and the plaintiff had no actual knowledge of the serious injury to the eye until some months later.

We think it is not reasonable undér this policy to require the insured to give notice of every small injury received, but only in cases where some material or substantial injury is reasonably apparant.

Counsel rely upon the case of Travelers Insurance Company v. Myers, 62 O. S., 529.

This case is distinguished first in the nature of the notice clause, and second in the fact that in the Myers case the insured had full knowledge of the injury at the time of the accident.

We are of opinion that the demurrer in this case should have been overruled.

The American Casualty Company Case.

The policy in this case contained the following:

“Written notice of any injury, fatal or non-fatal, for which claim can be made shall be given to the company at its home office at Reading, Pennsylvania, within ten days from the date of the accident. ’ ’

The argument is made by counsel for defendant in error that this stipulation, being absolute in its terms, must be liberally complied with in all cases before a recovery can be had. Counsel rely particularly upon the Myers ease in 62 O. S., 529, and the Coldham case, 2 N. P., 358, affirmed by the Supreme Court, 57 O. S., 657. The Myers ease is distinguishable from the ease at bar. There the facts were all known to the assured at the time of the accident, and notice was delayed merely because the assured hoped that by making no claim or investigation the injured parties would not bring the action. Later suit was brought against the insured and, when the insured came to assert his claim against the insurance company, it was held that he had lost his claim by failure to give notice provided for in the policy.

In the case at bar under the averments of the petition the assured had no knowledge of the injury to the eyesight for which claim is now made.

The Coldham case contained three limitations; one required immediate notice, one required proof of death in seven months and the other required the action to be brought in twelve months. No action was brought until after thirteen months. The Supreme Court may have affirmed the judgment upon either one of the three limitations. There was no reason for not bringing the action within one year and very little, if any, excuse for not .making the proofs of death within seven months.

Taking the decision of Judge Pugsley, as to the giving of immediate notice, there is a distinction between that case and the present, because in that case the beneficiary had notice of all the substantial facts as to the accident and the cause of death, and Judge Pugsley holds that she should have at least notified the company of the information in her possession. It is claimed, however, that the Myers case settles the proposition that a stipulation in a policy as to giving notice must be strictly followed in all cases regardless of the possibility of giving such notice.

While it is stated in the Myers case that the stipulation as to notice must be strictly followed, yet in later cases the Supreme Court has held that where the terms or conditions of a policy are doubtful they must be construed liberally in favor of the policyholder. Bank v. Insurance Co., 83 O. S., 309; Webster v. Dwelling House Ins. Co., 53 O. S.; 558; Mumaw v. Insurance Co., 97 O. S. (O. L. R., April 1, 1918).

It was also held in the Webster case mpra that conditions of forfeiture are to be liberally construed in favor of the beneficiary.

From the petition the following appears in respect to the accidental injuries insured against:

'“If such injuries shall result within two hundred weeks from the date of the accident in the irrecoverable loss of the entire sight of one eye, one-half of the principal sum shall be paid to the insured.”

Also the following:

“If such injuries shall result within two hundred weeks from the date of the accident in the irrecoverable loss of the entire sight of both eyes the principal sum shall be paid to the insured. ’ ’

From this item of the policy it would appear that the loss of the eye sight insured against, was not necessarily one resulting instantaneously and immediately from the accident, but might exist in a latent condition for a considerable period.

The ease stated in the petition shows that the injury to the eye was not discovered at the time of the accident or within the period allowed under the express terms of the stipulation for notice to the company.

If a strict and literal interpretation is to be given to the “notice” clause, many cases of injury to eye sight would be foreclosed because of the inability from one cause or another of the claimant to give the notice.

We think a liberal construction of the “notice” clause is reasonably necessary to preserve the main purpose of the insurance.

It would not be fair to assume that either the company or the assured intended by the “notice” clause to foreclose the possibility of asserting a claim so clearly and distinctly conferred by the obligatory terms of the policy.

No cases entirely in point are found in this state, although the following cases show a liberal construction of the “notice” clause: Manufacturers Accident Indemnity v. Fletcher, 5 C. C., 633; American Accident Co. v. Card, 13 C. C. 154, affirmed by the Supreme Court, 41 W. L. B., 178.

The question has frequently arisen in other states, and while there is conflict .upon this question we think the weight of authority sustains a liberal interpretation in favor of the policyholder, and where it is impossible for the policyholder to give notice within the stipulated period it may be given immediately upon discovery of the accidental injury.'

U. S. Casualty Co. v. Hanson, 20 Col. App., 394:

“In an action upon an accident insurance policy where at the time of the accident plaintiff thought he was not injured, and for seven months afterwards he and his physicians attributed suffering to rheumatism instead of the accident, his failure to give notice of the injury within ten days as required by the policy would not defeat his action where he gave notice as soon as he learned from a correct diagnosis of his ease that his condition was the result of the injury from the accident.”

Peoples Mutual Accident Co. v. Smith, 126 Pa., 317.

“His claim was for the loss of his eye, and it is difficult to see how he could with any propriety make such a claim until he had actually lost it, or it had become clear that he would lose it. How could he have truthfully made claim on the fifth of September. And had he done so and his eyesight been restored, the probability is the defendant company would have criticised his claim even more closely than it has done now. ’ ’

Maryland Casualty Co. v. Ohle., 87 Atl. Rep. 763.

“I see no reason which requires notice to be given of the loss of an eye, until the eye is destroyed, any more than in a life policy a man should give notice of his death .before he dies.”

Phillips v. Benevolent Society, 120 Mich., 142.

“Notice was sufficient since the member could not be deprived of benefits, in the absence of a definite provision to that effect, by reason of the mistake of his physicians.’’ Boric v. Railway Officials & Employees’ Accident Company, 119 Fed. Rep., 63.

"We have therefore reached the conclusion that under a reasonable construction of the stipulation in the policy as to notice, together with other terms of the policy as disclosed in the petition, the demurrer to the petition should have been overruled.

Judgment reversed.

Kunkle and Allread, JJ., concur.