author: Sayre, J.

text:
    NATURE OF TENANCY WHERE LESSEE REMAINS IN POSSESSION WITHOUT NOTICE TO LESSOR.
    Sayre, J., of the Fourth District, sitting by designation in the place of Shields, J., of the Fifth District.
    Court of Appeals for Knox County.
    Bessie M. Owen v. Luther A. Barre.
    Decided April 22, 1920.

      Lease — For a Five Year Term — Last Three Years to he at Option of Lessee on Giving Notice — Lessee Remains in Possession Without Giving Notice — Nature of Sis Tenancy.

    1. A lease, stipulating a term of five years for an agreed sum payable in monthly installments in advance on the first of each month, and providing that the last three years of said term of five years is to be at the option of the lessee on the giving of ninety days notice, in Writing, immediately preceding the expiration of said two year period of his intention to occupy for the three years fob-lowing, terminates at the end of the second year if the notice is not given.
    2. In case the lessee, without giving such notice, holds over and pays the stipulated rent he becomes a tenant from year to year.
    3. The folding over beyond the two years period and paying the rent without having giving the notice to extend the term will not alone be sufficient to constitute an election to extend the term for the period provided by the option.

      K. L. Carr, for plaintiff in error.

      Ewalt & Blair, for defendant in error.
   Sayre, J.

June 21, 1915, Bessie M. Owen leased to Luther A. Barre a certain storeroom, together with the cellar beneath the same, on the east' side of South Main street, Mt. Vernon, Ohio, “for the term of two years, with the privilege of three years longer on the same terms and conditions, commencing on the first day of July, 1915, and ending on the 30th day of June, 1920, for the agreed sum of $3,300, payable, in monthly payments of $55 each, in advance on the first day of each month during the term of this lease. The last three years of said term of five years is to be’ at the option of said second party on thé giving of ninety days notice in writing immediately preceding the expiration of said two year ‘period of his intention to occupy said premises for said three years following. ’ ’

The lessee occupied the premises for two years, and without giving any notice whatever continued in possession until the end of the third year when he vacated the premises, having páid his rent in full to that time. Suit was brought by lessor to recover rent for ten months of the fourth year.

In the court of common pleas a demurrer was sustained to the petition for the reason that the same did not state facts sufficient to constitute a cause of action.

Plaintiff claims that by holding over one year of the three year period the defendant was bound for the payment of rent until tlfe end of that period, and as reflecting on that question attention is called to the language of the lease that it begins July 1,1915, and ends June 30, 1920, for the total sum of $3,300, payable in monthly installments of ,$55 each, and particularly to the language “the last 3 years of the term of 5 years” contained in said lease. It is claimed further that the notice referred to in the lease is for the benefit of the landlord and that it may be waived, and that the remaining over into the third year justified the landlord in believing that the lessee had decided to remain a tenant for the remaining three year period, and led the landlord to treat him as a tenant, and not as a trespasser, at the end of the second year when the lessee continued in possession of the premises.

We have been referred to a number of eases, where property was leased for a definite time with privilege or option for a number of years more, in which it was held that the privilege of extending the term for the full period provided in the option or privilege was exercised by simply remaining in possession and paying the rent. But these are cases in which no notice was required by the terms of the lease in order to take advantage of the option or privilege for an extension, as in Miller v. Albany Lodge (Ken.), 182 S. W., 936. The writer of the opinion in that case (p.937) says:

“The courts make a distinction between a covenant to renew a lease and a provision conferring on the lessee the privilege of extending his term. In the former ease some positive act on the part of the parties or notice by the tenant is required, while in the latter case a mere holding over by the tenant for a portion of the extended term is, in the absence of a stipulation for notice in the lease, a sufficient notice and constitutes an election to hold for the additional or extended term.”

But it will be observed that in that case the court indicates the existence of a different rule in case where there is a stipulation for notice in the lease.

If the lease requires a notice for the extension of the term, it is essential to the extension that the notice be given. Abadie v, Berges (La. Ann.), 8 So., 529.

It is clear that at the end of the second year the lease under consideration was terminated in the absence of the notice re-' quired of the lessee. When he held over without giving the notice, was it his intention to extend the lease for the additional three years or not f

The courts have held that such intention is not shown by merely holding over, and if the rental is received by the lessor it will be a holding from year to year and the lessee will not be bound to pay the rent for the remaining period provided by the option or privilege contained in the lease if he should quit the premises af the end of any year. Cooper vs Joy (Mich.), 63 N. W., 414; Gerhart Realty Co. v. Brecht (Mo.), 84 S. W. 216; English v. Murtland (Penn.), 63 Atl., 882; Bradford v. Patten, 108 Mass., 155.

While the lease in controversy contains language indicating that the parties had agreed that the term should be for five years, it is a term for two years subject to an extension of three years more at the option of the lessee.

The judgment will be affirmed.

ITouck, J., and Patterson, J., concur.


source: Caselaw Access Project

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

license: Public Domain

text:
    NECESSITY AND REASONABLENESS OF ENCROACHMENT ON STREET.
    Court of Appeals for Hamilton County.
    Moses F. Brown v. Cincinnati Union Stockyards Co.

    Decided January 19, 1920.

      Streets — Blockading of by Swinging Oates Subject to Injunction — ' Increased Facilities to Abutting Oumers not a Sufficient Justification.

    An owner of property abutting on both sides of a public street will be enjoined from blocking the street by swinging gates across it at frequent intervals during the day, in order to facilitate the passage of cattle from the property on one side of the street to that on the other. The added facilities of the passage and the saving of the services of an extra man do not constitute necessity or reasonableness in the encroachment.

      Wilson, Fitzpatrick <& Quane, for plaintiff in error. •

      Paxton, Warrington & Seasongood, for defendant in error.
    Heard on appeal.

      Motion to require the Court of Appeals to certify its record in this case' overruled, March 2, 1920.

   Hamilton, J.

The defendant is engaged in the handling of live stock in the city of Cincinnati, with yards and property on Johnson street, a short street located in the west end of the city. De- ■ fendant owns real estate on both 'sides of the street, which is about thirty feet in width. It has been engaged in the business of handling live stock at this place for a great many years. In the course of its business it drives cattle from its property on the east side of Johnson street to its property on the west side of the street, in bunches, many times during the day.

Shortly before the institution of this action the defendant hung two gates on hinges on each side of the street, attached to its buildings, which buildings were flush with the street line. They were so attached that when opened toward the street they would meet in the center of the street and could be fastened together, thus making a lane some eight feet in width through which the cattle could b¿ driven. While one of the gates served the double purpose of closing an entrance into the stockyards, when swung back, and of making a lane across thé street, when open, the other gates were constructed for the sole purpose of making the lane across the street.

Plaintiff, Moses F. Brown, is a property-holder, owning real estate adjacent to the property of defendant, fronting on Johnson street, and is engaged in a similar business. He brings this action seeking an injunction against the maintenance of the gates above described by the defendant company. The.defendant company contends that the gates are only to be opened for temporary purposes and to facilitate the moving of cattle, and that they save the employment of one man.

Johnson street is a public street in the city. The right of the public in. the use of a highway is the right of transit to every person who has occasion so to use it. This right is, however, subject to such incidental and temporary or partial obstruction as manifest necessity may require. Clark v. Fry, 8 Ohio St., 358.

Temporary encroachments on a highway by individuals are permissible^ but must be necessary and reasonable. Callahan v. Gilman, 107 N. Y., 360 [14 N. E. 2641, and Tolman & Co. v. City of Chicago, 240 Ill., 268 [88 N. E. 488].

Do the facts in this case bring the defendant within this rule? While it is claimed and the facts show that the construction of these gates across Johnson street greatly facilitate the passage of cattle and save the use of. one extra man to guard the street if they are driven across without gates, this is the most that can be claimed under the evidence. The majority of the court are of the opinion that the closing of the gates can not be considered as a temporary matter, in view of the fact that the evidence shows it to be the practice of the defendant company to drive the cattle across the street many times per day, and the use of the gates each time practically results in the permanent blocking of the street.

It is urged that the use of the gates would no more block the street than would the driving of the cattle across the'street without gates, as it .would be impossible to cross while the cattle were passing over, but this is beside the question, as no complaint is made of the driving of the cattle without gates. , Added facilities or a measure of economy will not constitute necessity or reasonableness in the encroachment. Neither can it be said, that the opening and closing of the gates at frequent intervals make the encroachment temporary, rather than permanent.

We are, therefore, of the opinion that the maintenance of these gates and the uses to which they are put are neither necessary within the rule, reasonable, or temporary, and the closing of the same across the street will be enjoined.

A decree may be taken accordingly.

Cushing, J., concurs.

Shohl, P. J.,

concurring. I concur in the result reached by my associates.

There is, however, one fact which I regard as most important, to whiph not enough weight appears to be given by the statement already made. The case at bar presents an instance of the blocking of the entire surface of a street. Public highways belong from side to side and from end to end to the public. (2 Elliott, Roads and Streets (3 ed.), See. 828). This paramount right of the public in the use of streets in all their, parts is, however, not absolute, -but relative. It. is subject to such temporary, partial' obstruction as manifest' necessity may require. The right of persons to obstruct the street or sidewalk temporarily for business uses is justified on the grounds of necessity. People v. Cunningham, & Harris, 1 Denio, 524, 530; Callahan v. Gilman, supra, and Jochem v. Robinson, 66 Wis., 638 [29 N. W. 642].

Illustrations of permissible obstructions are found in the case of Clark v. Fry, supra, and Tolman & Co. v. City of Chicago, supra, and the cases therein cited. However, there is no ease cited by counsel for defendant, and none has been found by the court, justifying systematic, frequent and extensive use by an abutting property owner of the entire surface of a public street. Such a limitation of the rights of the public could only be justified by manifest necessity. The fact that defendant will be required to employ an additional watchman presents no such necessity. Its greater convenience will not suffice to deprive the public of its paramount rights.


author: Shohl, J.

text:
    ORAL PRIVILEGE FOR VACATION OF PREMISES INOPERATIVE.
    Court of Appeals for Hamilton County.
    Cromwell et al v. Bissinger Candy Co.
    Decided, June 21, 1920.

      Statute of Frauds — Oral Agreement to Cancel Lease Before Termination of Term not Enforcible.

    An oral agreement between a lessor and lessee, regarding premises of which the lessee had possession under a valid lease, to the effect that if the lessee should vacate the premises before expiration of the written lease the lessor would cancel the lease and absolve the lessee from further payment of rent, there being no present agreement to surrender accompanied by a change of possession, is an oral contract concerning an interest in lands within the meaning of Section S621 G. C., and is inoperative to destroy the lease or excuse non-payment of rent.

      Leo J. Brumleve, Jr.} for plaintiffs in error.

      Kramer & Bettman, for defendant in error.
    Heard on error.
   Shohl, J.

Plaintiffs in error brought an action in the superior court of Cincinnati to recover rental for premises located in Cincinnati, which had been leased to the defendant in error for a period of two years. The defense relied upon an oral agreement to cancel the lease for the balance of the term. The court admitted the testimony of the oral agreement in respect to the lease, and the defendant recovered a verdict, upon which judgment was entered.

The amended answer upon which the case was tried alleges:

“For further answer, defendant states that some time in January, 1917, while it was in possession of the described store premises, the plaintiffs advised the defendant that they desired possession thereof, for the purpose of renting the same to the Herman Bumiller Company, which company occupied the store adjacent to the defendant in the same building, the entire building being owned by plaintiffs; and the plaintiffs requested the defendant to vacate its store and surrender the same to plaintiffs as soon as it could find a suitable new location, and plaintiffs agreed that when said store was vacated, defendant should be released from the further payment of rent. Defendant thereupon agreed to vacate as soon as it could find such location. . The defendant thereupon sought a new location and was assisted therein by the plaintiffs. As soon as said new location was found, the defendant moved into the same in June, 1917, and thereupon notified the plaintiffs, that pursuant to plaintiff’s request and agreement it had vacated the premises leasedt. Thereupon plaintiffs repudiated their request and agreement thereon.
"Defendant states that the rentals claimed by plaintiffs in their petition are for months subsequent to the time when as above alleged it had vacated said premises pursuant to plaintiff’s request and subsequent to the time of plaintiff’s assistance to the defendant in seeking a new location.
"Wherefore having fully answered, defendant prays to be hence dismissed with its costs.”

The sufficiency of the answer is challenged by demurrer and also by objection to the admission of evidence.

The agreement alleged in the answer is claimed to have been made in January, 1917. At that time it is claimed that the plaintiffs agreed that the defendant should vacate the premises in. the future, at which time it should be released from the further payment of rent.

Neither the allegations nor the proof make out a ease of a surrender in fact, as there was no present agreement to surrender accompanied by a change of possession. Sec. 8621, G-. C. provides:

"No action shall be brought whereby to charge the defendant, upon a special promise, to answer for the debt, default or miscarriage, of another person; nor to charge an executor or administrator upon a special promise, to answer damages out of his own estate; nor to charge a person upon an agreement made upon consideration of marriage, or upon a contract or sale of lands, tenements, or hereditaments, or interest in, or concerning them; nor upon an agreement that is not to be performed within one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.”

Under its terms no person shall be charged upon an oral contract concerning an interest in lands. The object and purpose of the statute was to exclude all oral evidence of contracts regarding land. It is against the policy of the law that a party to a written lease should be deprived of his rights under it by a claim based solely on oral testimony. If the view taken by the court below is correct, a lessee in any case might attempt to prove that he abandoned the premises pursuant to an oral agreement made some time previously, and the landlord’s right, which the law protects by requiring it to be affected by a solemn instrument of writing, might be set at naught by testimony of mere conversations.

A relaxation of the rules as shown in the case of Bumiller v. Walker, 95 Ohio St., 344 (116 N. E., 797), is confined to those (■ases where there is a change of possession concurrent -with the oral agreement. The ease of Frankel v. Steman, 92 Ohio St., 397 (110 N. E., 747), was apparently such a case. There may be a surrender by parol, but that surrender must be a surrender in fact, and not an agreement to surrender. An agreement to surrender must be in writing in order to be valid. Strong v. Schmidt. 35 (N.S.), 233, 240. See also Hamberger Co. v Miller Bros. & Co., 25 C. C. (N.S), 234. as to the statute of frauds.

The defendant has neither alleged nor proved anything more than a mere oral agreement to surrender, which, as shown by the foregoing authority, will not operate to destroy the lease nor excuse nonpayment of the rent.

Hamilton and Cushing, JJ., concur.


author: Allkead, J.

text:
    DETERMINATION OF THE RIGHTS OF MINORS IN LAND REGISTRATION PROCEEDINGS.
    Court of Appeals for Champaign County.
    Jesse P. Kellough v. J. S. Moses, Admr.
    Decided May, 1920.

      Qualifications of Guardians ad Litem — Proper Parties to a Will Contest — Who May he Made Parties to a Land Registration Proceeding — Determination of the Rights of Minors — Judgment in d Will Contest Not Conclusive on a Minor — But Title of a Bona Fide Purchaser from the Heirs May Not Be Impeached, Unless.

    1. A person not interested in the subject matter of litigation may be appointed to act as guardian ad litem of a minor defendant. The fact that the guardian ad litem is loyal to and a partisan of the ward is no disqualification.
    2. One having a contingent or expectant interest under a will is a proper party to an action to contest said will.
    3. In proceedings under the act for the registration of titles to real estate, parties having legal or equitable rights including vested, contingent or expectant estates may be brought in and their rights therein may be determined.
    4. Where a will has been contested and set aside a minor defendant in such proceedings may be required, in a subsequent proceeding under the registration act brought by a purchaser, from the heirs, to set forth any claim such minor may have to set aside the judgment in the will contest case, and if such claim of such minor be found to be merely colorable and not substantial the cloud arising therefrom may be removed and the title to said real estate may be registered.
    5. A judgment in a will contest case setting aside the will is not conclusive upon the minor defendant, but may be impeached foi fraud or other equitable grounds within the limitation prescribed by Section 11603, G. C., or when brought in as a claimant under the registration act.
    6. Where a judgment setting aside a will is regular upon its face, a purchaser from the heirs at law, without notice actual or constructive of the equitable defense against such judgment by a minor defendant, has superior rights, and the title of such hona fide purchaser can not be impeached by the minor upon a defense not going to the jurisdiction of the court in the will contest case nor appearing upon the face of the record in that case.

      Deaton, Bodey & Bodey, George V. Fromme and Reide tC' Sanderson, for plaintiff.

      Wilson Js Rector, for the Buckeye State Building & Loan Co.

      Johnson &■ Miller, Owen & Owen and, R. W. Rouston, for defendant, Lucile Stewart.
    On motion for judgment on pleadings.
   Allkead, J.

The plaintiff claims to be the owner in fee of a tract of about 400 acres of land in Champaign county and brings this action to register his title. The adverse - claimant is Lucile Stewarr, a minor.

The common source of title is "William Stewart who died January 15, 1909, aged about ninety years. On April 23, 1908, William Stewart executed a paper writing purporting to be his last will and testament. The will was duly probated.

The surviving relatives of William Stewart were Elizabeth Stewart, his widow, and William A. Stewart his only child and sole heir at law.

William A. Stewart was at the death of his father married and had one child, to-wit, Lucile Stewart, then of the age of about five years. Lucile Stewart is the only child and is the heir apparent of her father William A. Stewart. Francis J. Stewart was the wife of William A. Stewart and mother of Lucile. Lucile Stewart claims title under the following item oC her grandfather’s will:

“Item 1st, I give and devise to my beloved wife in lieu of her dower the farm on which we now reside, situated in Salem township, Champaign county, Ohio, containing 400 acres. Also about 108 acres, known as the Wright land, situated in Champaign county, Ohio, during her natural life and all the stock, household goods, furniture, provisions and all monies due me and in bank at the time of my decease I give and devise to her absolutely. At the death of my said wife the real estate aforesaid I give and devise to my son William A. Stewart during his natural life, and then to his heirs in fee simple. ’ ’

February 20, 1909, William A. Stewart, Francis I. Stewart and Elizabeth Stewart brought an action to contest the will of "William Stewart. The administrators, with the will annexed, of William Stewart and Lueile Stewart were made parties defendant. A guardian ad litem, was appointed for Lueile Stewart as provided by statute.

The record of that case shows that the trial resulted in a ver-' diet and judgment setting aside the will.' The plaintiff claims under successive conveyances from the widow and heirs at law of AVilliam Stewart, deceased.

In the registration case Lueile Stewart was brought in as a defendant. Her defense is made by J. T. Journell as guardian ad litem. Her defense finally rests upon her third amended answer and cross petition in which she claims in substance that at the time of said proceedings to contest the will she was an infant of tender years, under the control of those adversely interested, and was wholly incapable of understanding the nature and effect of the proceedings, entirely ignorant of her rights, had no guardian or attorney to represent her, and that the guardian ad litem, originally appointed who was preparing to make a defense and to resist the efforts to set. aside the will was removed and another guardian ad litem appointed who was subservient to the wishes of those adversely interested and did not call witnesses or make a real defense in said case; by reason. whereof it is claimed that said Lueile Stewart was not bound by said judgment and has a right to open up the same and se-, cure a new trial óf said will contest ease. The plaintiff answers to the cross petition of said Lueile Stewart. The answer sets out the record in the will contest case more fully and denies the charge of fraud. It is also averred that J. T. Journell, as guardian in fact, brough suit in the common pleas court to open up and set aside the said judgment in said will contest case and that upon the trial thereof said plaintiff dismissed said action.

The second defense sets out that the plaintiff was a purchaser of said real estate, after the decision of the will contest case, for full value after &e examination of the title of record and without notice of the claim of said Lueile Stewart.

The case is submitted at this time upon the pleadings.

It is claimed that J. T. Journell is not a “disinterested” person and was, therefore, incompetent to be appointed as guardian ad litem in the present case.

“Disinterested” as used in the registration act evidently means one not interested in the subject matter. We think the fact-that Journell was loyal to and even a partisan of the interests of Lucile Stewart was no legal objection to his competency to be appointed and to act as guardian ad litem.

It is claimed that Lucile Stewart was not a proper nor necessary party in the will contest case. In order to determine this question we must consider the provisions of the will. If, under the will, she had no vested, contingent or expectant interest in the land in controversy then the case would be resolved into a moot question. Considering the whole of Item 1 we think the estate of the widow in the 400 acres as well as the 108' acre tract was subject to the devise to the heirs of William A. Stewart. The period following the devise of the 400 acre tract is not conclusive. Noble v. Ayers, 61 O. S., 491. Punctuation yields readily to the context.

It is not necessary to place a definite or final construction upon the clause in the will under which Lucile Stewart claims. It is sufficient for the present to say that under a reasonable construction of that clause she has either a contingent or an • expectant interest in the fee. She was the only living representative of the fee simple interest. If her estate was vested or contingent she would be a proper party in the will contest case to make the defense. If her estate was merely in expectancy, while she could probably not convey or release it still she had the right to defend it and was therefore a proper party. Campbell v. Watson, 8 Ohio, 498.

The question is raised as to the jurisdiction of .the court in the registration case. The evident purpose of the registration act was to confer broad powers upon the registration court. The proceeding is essential in rem and includes jurisdiction to determine legal or equitable • rights including vested, contingent and expectant estates.

The statute conferring jurisdiction provides:

8572-1. “Said courts shall have full power to inquire into the condition of the title to any and all interests or estates, legal or equitable in land, or any lien, charge or incumbrance thereon, and to make all such orders, judgments and decrees as may be necessary to settle, determine, establish and declare as against all persons known and unknown, in being or unborn, the said title, interest or estate, and all liens and incumbrances existing therein, and the order and preferences as between the same, and to remove as against all persons known and unknown, in being or unborn, clouds from the title and forever quiet and settle the same.”

See also Section 8572-5.-8-16, Gr. C.

The registration proceedings were instituted in the court of common pleas, being the same court where the will contest was decided arid which would have jurisdiction of an application to open up that judgment. "We, therefore, have in the trial court the broad powers conferred upoma registration court combined with those of a court having jurisdiction over the action of the judgment in the will contest case.

Lucile Stewart claims under the following statute :

“Section 11603. It shall not be necessary to reserve in a judgment or order the right of a minor to show cause against it after attaining the age of majoritybut in any case in which, •but for this section, such reservation would have been proper, within one year after his majority, the minor may show cause against such order or judgment.”

It is claimed by counsel for plaintiff that Section 11603, G-. C., does not apply to a will contest ease. It is contended that the will contest chapter is exclusive. There is some foundation for this contention in the history of the will contest statutes and in the decision of the Supreme Court in the case of McVey v. Fetterman, 95 O. S., 292. No doubt at one period in the history of the will contest statutes an exclusive remedy was therein provided to open up the judgments in such cases, but those .statutes have been repealed and a will contest is now declared to be a civil action.' It was held by this court, and affirmed by the supreme court, that the three-fourths jury law provided for civil actions was applicable to will contest cases. This decision would have a bearing upon the relationship of will contest cases to other civil actions and the scope of the code of procedure. While the question here presented is not without doubt we are strongly inclined to the view that after the repeal of the special sections providing for opening up judgments in contest of will cases that the provisions of the civil code in respect thereto would apply. We think it would be a dangerous innovation to bar minors of tender years of the special right to open up judgments in such eases. We are, therefore, of opinion that Section 11603, G-. C., applies. It is further claimed by counsel for defendant that Section 11603, Gf. C., gives the minor an absolute right to withhold his application until the extreme period of limitation unless such minor through a proper agency voluntarily chooses to precipitate the contest.

Whatever might have been the rule heretofore we are of opinion that under the registration laws the registration court would have jurisdiction in a proper case to require a show down of the minor’s rights. It is a matter of common knowledge that minors are interested in many will contest cases where such minor’s rights have been zealously guarded and where no fraud exists. To hold the extreme rule that every minor is entitled to have his day in court after he becomes of age would place a cloud upon many titles unjustly. The registration act was intended to remove merely colorable clouds and free the title from purely technical difficulties. •

The minor here files not only an answer but a cross petition. The guardian ad litem, in this case is also her guardian in fact. She has, therefore, by thé agencies provided by law chosen to present her case and while she asks as an alternative that the registration be dismissed she states the facts upon which her claim to title rests and this, we think, would justify a registration court in determining whether she ‘has in fact a right to open up the judgment. See Rammelsburg v. Mitchell, 29 O. S., 22.

The minor is now almost of age and. according to the pleadings is no longer controlled or surrounded by parties adversely interested. There is, therefore, no apparent reason for holding the ease open. If the evidence discloses that she has no right to open the judgment in the former case, then the title of plaintiff should be quieted and registered because in such case her right would' be purely technical and not substantial.

There remains for consideration two questions:

(1) The sufficiency of the third amended cross petition of Lueile Stewart; and

(2) The sufficiency of the second defense of the answer of the plaintiff thereto.

It is contended that the third amended cross petition should affirmatively state that the said defendant, Lueile Stewart, has a defense to the action to set aside said will. We think such defense was included in said third ■ amended cross petition by necessary inference and that the cross petition states facts showing a right to open up the judgment at least as against the parties to the judgment and is, therefore, good against a general demurrer.

The second defense of plaintiff’s answer to .said cross petition sets forth in-substance that the plaintiff purchased the real estate involved in this action after the judgment setting aside said will for full value and without notice of the equity now claimed by Lueile Stewart. This question is not without difficulty. It is the general rule that the title of a bona fide purchaser without notice is not affected by the subsequent setting aside of a judgment, upon which the title rests, for fraud, or other infirmity not appearing upon the face of the record and not going to the jurisdiction of the court. The claim here is that the rights of the infant defendant are based upon a statutory reservation. Counsel for defendant, Lueile Stewart, claims with considerable force that the statutory reservation has the same effect as if it had been actually written in the decree and that all purchasers who took title were bound to know that the minor might at any time within one year after arriving at the age of majority file an application to open up the judgment.

In the case Carey v. Kemper, 45 O. S., 93; Long v. Mulford, 17 O. S., 485; and Rammelsberg v. Mitchell, 29 O. S., 22, this statute (now Section 11603) in substantially the same form was considered Neither of those cases show that the right of a bona fide purchaser was involved or considered. It was held, however, that the statute merely preserved the rights of the minor as they had been formerly preserved in the journal entry by the usages of courts of equity.

In the case of Heirs of Ludlow v. Kidds, Executor, 3 Ohio, page 541, the rights of a bona fide purchaser were involved.

The action there was brought by infant heirs to obtain legal title to certain real estate and -was dismissed. Subsequently a bill of review was filed by said minor and the judgment of dismissal was reversed. After the decree of reversal the purchaser who took title for full value after the dismissal of the original action and before the filing of the bill of review by the minor was made party. Judge Sherman in announcing the opinion discusses the question at considerable length and reviews the leading English and American authorities. Judge Sherman says:

‘ ‘ The • argument for complainants is, that the statute giving the infants a day after they became of age, to file a bill of review, is to be taken as part of the decree itself, and considered as if the privilege was contained on its face; and that the legal effect thereof is, that is remains a matter pendente lite, until the rights reserved by the decree are extinguished. I do not consider it at all important to determine in this case whether the statute is to be so blended with the decree, as to be considered a part of it, for if the decree had, in terms reserved to the complainants the right of showing cause against it, after they arrived at age, it would not have had the effect of continuing the cause until that period. A decree to be final, need not conclusively settle and determine all the questions litigated, or rights involved in the suit between the parties, but it must put an end to that particular suit. The decree of dismissal in the original suit has all the requisities of a final decree. It is so in its terms; it is rendered upon final hearing; the court adjudicate upon the equity of the parties, and find that equity in favor of the defendants, and that the complainants are not entitled to the relief which they seek, and decree a general dis-mission of the bill, with costs. Nothing is reserved or left for further determination by the court, but the whole controversy between the parties is disposed of, and a final end put to that particulár cause, and I can not perceive that the decree, being against infants, at all changes its character or alters its effect as to third persons. ’ ’

This case has not been overruled nor criticised by any subsequent case in this state. It has been followed not only in this but in many other states. Ohio River R. Co. v. Fisher, 115 Fed., 929; Perkins v. Phalzgraff., 60 W. Va., 121; England v. Garner, 90 N. C., 197; Cheever v. Minton, 12 Colo., 557; McCormick v. McClure, 6 Blackford (Ind.), 466; Union Bank v. Ames, 37 Iowa, 672; Wadhams v. Gay, 73 Ill., 415; Rector v. Fitzgerald, 59 Fed., 809; Aldrich v. Chase, 70 Minn., 243. See also Freeman on Judgments, Sec. 513

Section 11633, G C., provides that:

“The title to property which is the subject of judgment or order sought to be opened, and which, by or in consequence of the judgment or order has passed to a- purchaser in good faith shall not be affected by proceedings under the next two preceding sections.”

This section was brought into the code of civil procedure in 1853 (51 O. L., 57). It was then limited to cases of constructive . service. Later on in the revision of 1880 it was incorporated in Section 5356, R. S., and made applicable to all proceedings to vacate or modify a judgment after the term.

Section 11633 has been held applicable to the case of a purchaser under judicial sale. Moor v. Parsons, 98 O. S., 233; Stites v. Weidner, 35 O. S., 555. Whether the section would include the ease of a purchaser at private sale under a title declared by the original decree has never been decided in this state. In the ease of Union Bank v. Ames, supra, the Supreme Court of Iowa under a statute which has some elements of similarity to Section 11633, held that it applied to a purchaser at private sale under a title established by a judgment. A somewhat similar holding was made in the case of Aldrich v. Chase, supra, by the Supreme Court of Minnesota. We do not think it is necessary to determine whether the case at bar falls within the protection given by Section 11633. That section was not^ in our judgment, intended to restrict the rights of purchasers previously existing under the rules of chancery. We are of opinion that a Iona fide purchaser from a party whose title rests upon a decree of a court is protected against a minor who makes a subsequent application for the opening up and vacating of said judgment.

We, therefore, hold that the second defense of plaintiff to the third amended cross petition of the defendant, Lucile Stewart, • is sufficient against a general demurrer, and if not denied, disputed or overthrown by evidence would constitute a good defense.

The motion of the defendant, Lucile Stewart, for a judgment in her favor upon the pleadings is, therefore, overruled. The cause will be retained for trial upon the pleadings.

Ferneding and Kunkle, JJ., concur.


author: Houck, J.

text:
    ACTION BASED ON SALE OF DISEASED CATTLE.
    Judge Sayre of Fourth Appellate District sitting in place of Judge Shields.
    Court of Appeals for Knox County.
    Kinzia A. Atkinson v. Levi S. Braddock.
    Decided, April 16, 1920.

      Animals — Damages Sought for Sale of Diseased Cattle — Charge of Court as to Knowledge of Condition of Cattle.

    The test of liability for sale of diseased cattle is whether the defenddant was ignorant of their condition or a reasonably prudent person acting under similar circumstances would have known oi tneir condition.

      H. W. Koons'and B. E. Sapp, for plaintiff in error.

      Ewalt and Blair contra.
   Houck, J.

The plaintiff here was the plaintiff in the court below.

The suit below was to recover damages from the defendant, for alleged misrepresentations claimed to have been made by defendant to plaintiff, as to the health of certain dairy and stock cattle, which were purchased by plaintiff of said defendant.

The case was submitted to a jury and a verdict returned for the defendant. The trial judge overruled a motion for a new trial and sustained the verdict of the jury by entering a judgment thereon.

A reversal of the judgment in this cáse is sought upon one ground only, namely: That the charge of the trial judge was misleading and erroneous. The part of the charge claimed to be erroneous is as follows.

“If the defendant at the time honestly believed such cattle to be free from disease, he would not be liable in a suit for fraud and deceit. ’ ’

This statement to the jury standing alone might, possibly, be construed to permit the defendant himself to determine the real question at issue — were the cattle diseased at the time of the sale The rule being that it is not determinable by the abstract belief or state of mind of the person charged with such knowledge, but the test is: Whether, under all the facts and circumstances of the ease, a reasonably prudent person would .have cause to believe the cattle diseased.

It is not sufficient.to sustain a claim that a charge is erroneous and misleading, by selecting certain parts of it, but the question must be determined frcm the entire charge.

Thus we find, when applying this rule to the case at bar, that the prejudicial error urged by counsel for plaintiff in error is not well taken.

The entire charge, upon the question raised by» plaintiff in error, is as follows:

“Did the defendant at the time of such representation and sale have knowledge that the cattle were affected with this disease ?
In considering this question, the jury may take into account all the evidence reflecting upon the issue, as well as all the surrounding circumstances, both before and after such sale, with, a view of ascertaining whether the defendant did at the time of such sale have knowledge of the diseased condition of the cattle.
If he had good reasons for believing the cattle diseased, he is chargeable with knowledge.
If you find upon this third issue in favor of the defendant’s contention, your verdict will be in favor of the defendant, for if the defendant at that time honestly believed such cattle to be free from disease, he would not be liable in a suit for fraud, and deceit.
If you find upon this third issue in favor of plaintiff’s contention, that is, if you find that the defendant at the time of such representations and sale had knowledge that the cattle were diseased, you would next consider the fourth issue which is, has plaintiff been damaged by reason of such fraud and deceit thus practiced upon him, and if so in what sum has he been damaged? For if the defendant represented the cattle to be free from disease, when in truth and fact they were diseased, and the defendant knew it, in such case defendant would be liable fcr all damages occasioned plaintiff by reason of such fraud and deceit thus practiced upon him. However, if the cattle were not diseased at the time of saLe, or if they were diseased at that time and the defendant had no knowledge of' it, in such case the defendant would not be liable.”

It will be observed that from all of the charge, upon the question at issue, the learned trial .judge gave a full, complete, and thorough analysis of its every phase necessary and proper for a clear understanding by the jury.

The sole and only purpose of an instruction, by court to jury, is to furnish guidance to- the jury in its deliberations, and to aid and assist it in arriving at a proper veidict. It should state in a clear and consise way the issues of fact and the principles of law applicable to them, thereby enabling the jury to reach a proper verdict.

Applying this rule to the charge now before us, under review, we find that it is clearly within the rule and fully measures up to it.

Further comment is unnecessary. The judgment of the common pleas court should be affirmed.

Judgment affirmed.

Patterson, J., and Sayre, J., concur.


author: Hamilton' J.

text:
    BREACH OF COVENANT AS TO SUBLETTING.
    ■Judges Skohl, Hamilton and . Cushing of the First District sitting by designation.
    Court of Appeals for Franklin County.
    Newman Club of Columbus v. Higgy et al.
    Decided, April, 1920.

      Landlord and Tenant — Right of Forfeiture for Breach of Covenant as to Subletting and Non-Payment of Rents — ■Where Oivner has Accepted Rents from Tenant in Possession with Knowledge of Subletting — Technical Breach of Covenant to Keep in Repair.

    1. The original lessee being now in possession and tendering payment of rent in full, a lease of a residence property for a term of ten years will not be forfeited for breach of covenants for the payment of monthly rentals and not to sublet without lessor’s consent, where at the end of the third year the premises, with the consent of the lessor, are sublet for one year by written lease containing substantially the.same terms as the original lease, the lessor being made agent to collect the rents from the sublessee, the sublessee later reletting the premises without the knowledge or consent of either lessor or lessee, if the lessor upon learning of the subletting by the sublessee accepts rents from,the tenant then in possession.
    2. Such lease will not be forfeited for a technical breach of covenant to keep in repair where the breach complained of was damage to hardwood floors and wall decorations, the time when the repairs were to be made and to what extent giving rise to a difference of opinion and being- largely a matter of discretion, it not appearing that the failure to make repairs had caused serious or permanent damage to the premises and that by proper repair of the floors and the payment of rents due the lessor will be fully compensated and made whole.

      N. J. Weisend, C. A. Eberly and Francis J. Eberly, for plaintiff.
    ■ H. C. Sherman and G. H. Duncan, for defendants.
   Hamilton' J.

Plaintiff brought suit for the purpose of securing relief from the declared forfeiture of a lease, executed to it by the defendant, Magdalen L. Higgy, for certain real estate in Columbus, Ohio. The premises had been formerly a large private resiidenee and were leased by the plaintiff as its club home. The lease was for ten years, commencing September 5, 1915, and provided for the payment of rent in monthly installments in advance. The club entered into possession under the lease and continued in possession until September 5, 1918, having paid all installments of rent to that time.

It appears from the evidence that in September, 1918, nearly all of the club members had gone into the military service, and . could, not use the premises for the purpose for which they had been leased. Thereupon, with the consent of the lessor, Magdalen L. Higgy, they sublet the premises to the Delta Zeta sorority, by written lease for one year, under practically the same provisions and covenants as the lease to plaintiff, with the further provision that the lessor, Mrs, Higgy, defendant herein, was made the agent to receive the rent from the sorority, sub-lessee. It further appears that the sorority, on or about June 5, 1919,'sublet the premises to Dr. S'. Earl Taylor, the manager of the Methodist Centenary, which was being held at that time in Columbus, for the period of the centenary. This subletting to Dr. Taylor was without the consent of the Newman Club or Mrs. Higgy. Thereupon, the defendant declared a forfeiture of the lease made to the plaintiff club, and, on July 1, 1919, notified the president of the club, in writing, by mail, to the effect that she had terminated the lease to the club for a breach of the covenants of the lease to pay rent, not to sublet without consent, and the further breach of the covenant to keep the premises in repair.

The lease is introduced in evidence and contains the covenants for the payment of monthly rentals in advance, not to sublet without consent, and to keep the premises is as good condition and repair as the same were in when the plaintiff took possession.

The plaintiff is now in possession of the premises and asks to be relieved from the declared forfeiture, and that its title to the premises under the lease-be quieted.

The sorority paid all inslallments of rent incurred during its term direct to Mrs. Higgy up until the installment due June 5, 1919, when, by reason of some complaint on the part of the sorority with reference to repairs to the building, that installment was not paid within the twenty days provided in the lease. It appears that Dr. Taylor, who was then occupying the premises, had received notice about that time to vacate the premises, and that he later entered into an agreement with the defendant, through the defendant’s agent, by which he was permitted to remain, and that defendant accepted rent from Dr. Taylor to July 15, 1919. The defendant or her husband, who was the agent, was informed by the sorority ol: the proposed subletting to Dr. Taylor and made no objection. The rent was, therefore, paid in full up to July 15, 1919, and the plaintiff now offers to pay and tenders payment of the rent in full'.

We are of opinion that the plaintiff is entitled to the relief asked as against the claim of the breach of the covenants to pay rent within a certain time and not to sublet without, written consent.

The general rule is that forfeitures are not favored in equity, and where compensation can be fully made equity will generally relieve against a forfeiture. Equity looks upon the landlord’s right to re-entry on failure to pay rent as security for the payment of the rent, and on the rent being paid the very thing is done for which the security was given. 24 Cyc., 1364; 16 Cyc., 77, 78, and Gordon v. Richardson, 185 Mass., 492 (70 N. E., 1027).

The failure to make objection to subletting to Dr. . Taylor, the arrangement which the defendant made with Dr. Taylor, and the acceptance of the rent from him, would constitute a waiver of this covenant in the lease against subletting, especially in view of the fact that the plaintiff had no knowledge of subletting,. while the defendant was in possession of all the facts, and, as above stated, accepted the rent from Dr. Taylor.

The failure to keep the premises in repair is most strongly relied tipon by the defendant to support the forfeiture, and it is urged that the premises were materially damaged by reason of this breach. The evidence, on the question of the failure to keep in repair, and the damage to the property by reason thereof, is widely divergent and somewhat voluminous, and we will not enter into any extended analysis of that evidence. It is clear, however, that the main damage claimed is to the hardwood floors and the wall decorations. While it is the duty of the club to keep the building in repair, with reference to these particular items, just when such repairs should be made and to what extent may give rise to a difference of opinion. The club was in possession of the' premises for three years without making any repairs of the things complained of, except possibly waxing the floors. Some plans were made by the plaintiff in the-fall of 1917 to make these repairs, but witnesses testified that they were prevented from carrying these out by reason of the members being called into the military service of the government. There -is no evidence of any complaint of abuse of the building during the occupancy of the sorority. With the consent of the defendant, the plaintiff was not in physical possession of tl e premises for the period of nine months preceding the notice of forfeiture. It does not appear that the failure to make the repairs has caused any serious or permanent damage to the premises, but that the question is largely one of decoration. The testimony of contractors, witnesses for the defendant, is, that to put the floors in proper condition would require sanding and waxing, and while this repair may be expensive, failure to make it would not permanently damage the property, and should the work of papering and properly treating the floors be. carried out, and all the rentals be fully paid, the lessor would be fully compensated and made whole. It further appears that the plaintiff has repaired the floors and redecorated the walls at an expense of $800.

While there has been a technical breach of the covenant to keep in repair, we are of opinion that equity should and will relieve against a forfeiture under these circumstances-and conditions.

A decree may be taken quieting the title of plaintiff upon the payment of all installments of rent and its prompt com pliance with the covenant to keep the premises in repair, and the payment of all costs in the case.

Shohl and- Cushing, JJ., concur.


author: Mauck, J.

text:
    OCCUPATIONAL TAXES AND LICENSE FEES MAY BOTH BE IMPOSED.
    Judges Sayre, Middleton and Mauck of the Fourth District sitting by designation in place of the Judges of the First District.
    Court of Appeals for Hamilton County.
    The Welfare Loan Company v. George P. Carrel, Auditor of the City of Cincinnati
    Decided, June 16, 1921.

      Taxation — State System of License — Municipal Occupational Tax — Not in Conflict toiih each Other.

    1. A license issued by the state, authorizing the holder to carry -on the business of loaning money on chattel mortgages and assignments of wages, does not exempt such holder from the levy of an occupational tax by an ordinance of the municipality wnerein such business is conducted.
    2. The fee exacted by Section 6346-2, G. C., is not a tax.

      Ralph E. Clark, Buchwalter, Headley & Smith, McCauley é Simmonds, Barton E. Robinson and Sanford Brown, for plaintiffs in error.

      Saul Zielonlca, contra.
    Heard on Error.
   Mauck, J.

The plaintiff brought its action in the common pleas to enjoin the Auditor of Cincinnati from collecting an occupational tax levied under a city ordinance, which among other things provided that persons or' corporations loaning money on chattel mortgage should pay an annual tax of one hundred dollars; those loaning money on the Morris Plan should pay a tax of one hundred and fifty dollars, and those loaning on an assignment of wages should pay one hundred dollars. The petition alleges that the .plaintiff is duly licensed by the state of Ohio to engage in the business of loaning on chattels and assignments of wages and has paid the annual license fee therefor, and is by reason of that fact exempt from the operation of the ordinance referrecl to. The common pleas sustained a demurrer to the petition and error is now prosecuted to the judgment that followed the sustaining of the demurrer.

The occupational tax ordinance of Cincinnati, is constitutional, the power to enact the same proceeding directly from the Constitution. (State, ex rel, v. Carrel, 99 O. S., 220.) The exercise of this constitutional power is, however, subject to express statutory limitations {Sec. 13, Art. XVIII, Const.), and possibly to an implied limitation when the state by statute exercises the right to tax the same subject-matter (carrel case, supra).

The contention of the plaintiff in the instant case is that the state has, by enacting Sections 6346-1, et seq., G. C., expressly excluded the municipality from taxing the businejss of 'the plaintiff corporation, and that the state has by implication excluded the municipality from this field of taxation by itself imposing such tax under the statute referred to. An examination of this act discloses that by Section 6346-1 it is made unlawful to conduct such a business as that engaged in by the plaintiff without first obtaining a state license therefor. The succeeding section provides that the licensee shall pay an annual fee of one hundred dollars and “no other or further license fee shall be required from any such licensee by the state or any municipality.” . The argument of the plaintiff is that the statute and ordinance in effect cover the same field; that the Legislature in denying to the city the right to exact a license fee from a. loan company denies it the right to levy an excise tax on such business ; and that in as much as both the statute and ordinance exact the payment of money for and on account of the same business that the character of these exactions is indistinguishable. In effect the position of the plaintiff is that no distinction can be made between a tax and a license fee, or that if there be any such distinction that both of these are of the same kind and that they are both taxes or that they are both licenses. This position we deem unsound. The principle involved is not a new one in Ohio. However the lexicographers may define the words tax and license, the Supreme. Court of this state has determined that the words have a distinctly different meaning in tíre legislation of this state. Under the Constitution of 1851 the Legislature iva§ inhibited from licensing the traffic in intoxicating liquors. Notwithstanding this the Supreme Court held that .it had the right to tax the business of trafficing in intoxicating liquors. (Adler v. Whitbeck, 44 O. S., 539.) The distinction is not obscure. In State v. Hipp, 38 O. S., 199, the court held:

“A license is permission granted by some competent authority to do an act which without such permission would be illegal. ’ ’

Now the statute under immediate consideration made the particular loan business in question illegal except where permission ivas granted to the licensee. That business ^became legal whenever the state’s license was issued. It was not only reasonable, but was necessary, when the state granted permission to transact business in Cincinnati that the city be inhibited from further power to license, otherwise the state’s exercise of its police power could be destroyed by mere municipal exercise thereof. The city, however, did not by the ordinance in question assert a power to deprive the loan company of its right to do business. It did not challenge the state’s license in any way. It only provided that all persons or companies pursuing this occupation in the city, as well as all those pursuing other designated followings, should pay the tax prescribed.

“It would not be claimed that a tax upon the property employed in the business, as the fixtures and stock in trade, is a license to carry it on. And yet a tax upon the business itself is no more the granting of a permission to engage in it than is the levying of a tax upon the property employed in the business. In either case, if the tax is not paid, the property of the owner liable to the tax may be distrained by the state and sold to satisfy it.
“The distinction between a tax upon a business, and what might be termed a license, is, .that the former is exacted by reason of the fact that the business is carried on, and the latter is exacted as a condition precedent to the right to carry it on. In the one case the individual may rightfully engage in and carry on the business without paying the tax; in the other he can not.” Adler v. Whitbeck, 44 O. S., 539-559.

It is clear, therefore, that the ordinance is free from any infirmity imposed 'by that provision of the statute which denies the city the right to require a license.

The further contention that if the ordinance be construed to levy a tax that the statute referred to is likewise a tax upon the occupation of the licensee, and that the tax levied by the city must for this reason be enjoined so long as the statute is operative, finds no support in the language of the statute. The statute adequately and accurately creates - a system of license, as defined in the Ilipp case and the Adler case. It does not come within the definition of a tax. It is not a levy upon a business being carried on,, but its payment is made a condition precedent to carry on, such business. The statute, therefore, exacts only a fee for a license permitting the plaintiff to engage, in the business, while the ordinance levies a tax upon the business so authorized to be conducted. The existence of one does not militate against the other.

The court of common pleas properly sustained the demurrer to the petition of the plaintiff.

For like reasons demurrers were properly sustained in the cases brought by The Beneficial Loan Society, The Cincinnati Collateral Loan Company, The Globe Security & Loan Company, and The Citizens Mortgage Loan Company. In all these, as well as in the instant case, the judgment is affirmed.

Sayre, and Middleton, JJ., concur.


text:
    INCOMPETENT EVIDENCE FOR ESTABLISHING MISCONDUCT OF JURY.
    Court of Appeals for Knox County.
    James F. Dodd v. Harry McCammon.
    Decided, March 26, 1920.

      Construction of Contract for Ra-seeding hy Tenant Farmer — Misconduct of Jury must he Shown hy Evidence Aliunde.

    1. A new trial will not be granted for misconduct o£ the jury, unless partiality is shown to have existed to such an extent as to have clearly constituted a disqualification for the proper exercise of reason and judgment, and to have been paused by the prevailing party or someone for him.
    2. Under the rule that the affidavits of members of the jury are inadmissible to impeach their verdict, it is clear that misconduct which would vitiate the verdict can not be shown by the affidavit of an attorney who has obtained his information second hand, but must be established by evidence aliunde.

      Charles L. Bermont, for plaintiff in error.

      Ewalt & Blair, contra.
   Houck, J.

The parties occupy the same position in this court as in the court below.

This cause was tried to a jury at the October term, 1.919, of the court of common pleas of Knox county, Ohio, upon the issues made ifi the second cause of action in plaintiff’s petition, .the answer thereto and reply and also upon the issues made in defendant’s cross-petition and the answer thereto, which resulted in a verdict for the defendant upon his cross petition for the sum of $77.76. A motion for a new trial was filed by plaintiff, which was overruled and judgment entered for the defendant for the amount found due by the jury.

The errors relied upon for a reversal of the judgment in this case are as follows:

First. That the trial judge erred in his charge to the jury as to the law, applicable to the construction of the following paragraph contained in the written contract sued upon:

“Any excess of timothy or clover seed that may be raised and not needed for re-seeding may be sold, and the proceeds divided equally; but if sufficient is not raised on the farms for such reseeding, then the necessary seed shall be paid for jointly, and in the same manner shall also be paid for all other grain and seed required for the farms during the period covered by this agreement ; and at the termination hereof the second party shall leave-as much land on the farms seeded to clover and timothy, or seed to equalize the same, as was thus seeded April, 1915.”

The intention of the parties to a contract can only be deter-wined by the language used therein. If the contract is clear upon its face and is not ambiguous, then it needs no construction or interpretation on the part of a court.

To us, the language in question is clear and plain of meaning and but one construction or interpretation could properly be placed upon same, namely, that which the trial court gave to it.

The trial court said to the jury,

“And now if Mr. McCamrnon, the defendant in this ease, did seed down in the spring of 1918, to clover, an equal number of acres to that which was seeded down in 1915, he has done all the contract required in that regard. ’ ’

We find and hold this to be the law and clearly applicable to the language used in the contract and its proper intei’pretation.

The only question then remaining for the jury to determino was, as to whether or not McCamrnon had “seeded down”' the required number of acres to clover. This being a question of fact and the jury having found in favor of McCamrnon, from the evidence, we must and do find no prejudice to the rights of Dodd in this respect.

Second claimed error. That the verdict and judgment are not supported by the evidence apd are contrary to law.

We will not discuss this further than to say that, after a careful reading o£ all the evidence and an examination of the charge of the court, ive find the verdict of the jury and the judgment entered on the verdict, by the court, responsive to the proven facts and the law applicable thereto.

Third. Was there “misconduct of the jury” that would warrant a reversal of said judgment?

In support of this claimed error, counsel for plaintiff in erroi relies upon the facts set forth in his affidavit filed in support of this ground for a new trial, in his motion for same, in the common pleas court, being as follows:

“Charles L. Bermont, the attorney for plaintiff, being first duly sworn, says: That in a talk with E. W Breece, Robert Neiderhouser and C. C. Leiter, three of the jurors, who sat in the case of Jame F. Dodd v. Harry W. McCammon, which talk took place on December 9, 1919. (being several days after the jury returned its verdict in said ease) the following conversation, in substance, took place:
“E. W. Breece said to affiant, ‘You didn’t expect to win your Dodd ease, did you?’
“To which affiant replied, ‘No, I do not have much confidence in our claim, neither did I think that the defendant would get a verdict on his cross-petition. 1 thought the jury would leave them about where they started. ’
“To which remark Robert Neiderhouser replied, ‘That man Dodd has been at that kind of business so long that the jury thought it was about time to punish him a little. ’
• “To which affiant replied, ‘Had I known that you felt that way about it, you would not have been on that jury.’
“To which Neiderhouser replied, ‘You need not blame all of it on me, because Squire Welker knew’ all about it, as he had recently collected an account from one of Dodd’s tenants, for cleaning up after the tenant moved. ’ ’

The general principle underlying all cases of misconduct of the jury, as a ground for a new trial, is that such misconduct, in order to warrant the granting of a new trial, must be such as to affect the impartiality of the jury to such an extent as to clearly show a disqualification of its being able to exercise the powers of reason and judgment. Further, it matters not how improper such alleged conduct, on the part of the jury, may have been, yet, if it was not caused by the prevailing party, or by anyone for him, or if it does not point to any improper prejudice or bias upon the minds of the jurors, unfavorable to the party seeking a new trial, the trial judge ought not to set aside the verdict and grant a new trial.

In the present case there is no claim that the prevailing party had any knowledge of the declared misconduct on the part of the jury.

Admitting all the claims of plaintiff in error as to the facts, they fall far short of making a case of misconduct. But if they did, the proof offered is not of such character that it could be considered by the trial court in passing upon the motion for a new trial.

It is a well settled proposition of law in this state that, unless there is evidence aliunde, affidavits of jurors are not admissible to impeach their verdict.

Hence it follows that the affidavit of an attorney who obtains his -information at second hand, as to alleged misconduct of a jury, from one of the jurors who sat in the case, cart not be received in an attempt to set aside the verdict.

The common pleas court did not err in refusing a new trial upon the ground of misconduct of the jury.

We are fully supported in the conclusion thus reached, by the decisions in the following cases: Farrer v. State, 3 Ohio State, 54; Hulet v. Barnett, 10 Ohio, 460; Kent v. State, 42 Ohio State, 426; Parker v. Blackwelder, 7 C. R., 140; Andrews v. State, 15 C C., (N. S.), 241.

After a careful- review of the record in this ease, we find no errors of a prejudicial nature as against the plaintiff in error. We find also that a fair and impartial trial was had; that the verdict of the jury is clearly responsive to the evidence, and that the lower court was fully authorized and warranted, under the facts.and the law, in overruling the motion for a new trial.

Judgment affirmed.

Patterson, J., and Sayre, J., concur.

Judge Sayre, of the Fourth Appellate District, sitting in the place of Judge Shields.


author: Hamilton, J.

text:
    INTEREST ALLOWABLE FOR MONEY UNLAWFULLY RETAINED.
    Court of Appeals for Hamilton County.
    Lane & Bodley Co. v. Day.
    Decided January 17, 1921.

      Interest — Will Not he Eliminated from a Judgment for Money Which Has Been Unlawfully Withheld.

    Although, not specifically mentioned in the statutes, interest may be allowed in rendering a judgment for the use of money wrongfully detained, in order to give full compensation for such use and detention.

      Simeon M. Johnson, for plaintiff in error.

      John C. Healy, for defendant in error.

      Application for rehearing.
   Hamilton, J.

The application for a rehearing and for modification of the judgment in this cause will be denied.

Counsel for plaintiff in error urges a modification of the judgment by the elimination-of interest in the amount of $553.90, and in support of his position urges that interest is purely a creature of statute, and, there being no provision in the statutes of Ohio authorizing the charging of interest in a case of this sort, that to that extent the judgment is erroneous'and should be modified.

While it has frequently béen stated that interest is purely of statutory origin and not the creature of the common law, an examination of the authorities reveals that whatever the origin of interest may have been, and though interest may not be allowed eo nomine, there are many cases wherein the courts have alowed interest by way of damages; or where money claimed has actually been used, or is improperly retained. A discussion of these questions and exceptions to the general rule, if such it may be called, is found in 15 Ruling Case Law, paragraph 4, et seq., and 22 Cyc., 1474, et seq.

The case of Cincinnati v. Whetstone, 47 Ohio St., 196, is authority for the proposition that interest may be allowed in cases not specifically one of those enumerated in the statutes. ■In that case, Whetstone was awarded compensation against the city on account of an improvement made under the change of an established grade, by which his property was damaged. The court held in the syllabus that he was entitled to interest on the amount of compensation awarded and that it was not error in the. court „to so charge the jury. The court further says in the opinion at page 202:

‘1 Indeed, it is evident from the general course of decision, that where one has lost his property, or the use of it, directly through the act of the defendant, the principle of adequate compensation will give interest as a necessary incident.”

It has been held in this state that interest may be allowed in eases not enumerated in the statutes, as shown by the following authorities: Lawrence Ry. v. Cobb, 35 Ohio St., 94; Baltimore & O. Ry. Co. v. Schultz, 43 Ohio St., 270, and Hogg v. Zanesville Canal & Mfg. Co., 5 Ohio, 410.

Under the authority of the ease above cited interest may be allowed in cases not specifically enumerated in the statutes. Indeed it may be said to be within reason that the statutes do but limit the rate of interest in specific cases, and, further, were enacted to define and prevent usury, as expressed in the titles to the acts of the interest statutes passed by the legislature.

Interest not being limited in all instances to thoses eases specifically enumerated in the statute, we are of opinion that the ease is within that line of cases holding that interest may be allowed in order to render full compensation for the -use and wrongful detention of money.

Plaintiff in error wrongfully refused on demand to pay the defendant in error the $1,000 in question. It retained and used the money for years, and has kept the defendant out of his money by years of litigation, and its obvious duty is to put bim in the position he would have occupied had not the money been taken and retained by it. In support of this proposition we cite the following cases: Redfield, Excr., v. Ystalyfera Iron Co., 110 U. S., 174, 176; McShane & Rodgers v. Howard Bank, 73 Md., 135, 159; Henderson Cotton Mfg. Co. v. Lowell Machine Shops, 86 Ky., 668; and Parrott v. Knickerbocker Ice Co., 46 N. Y., 361.

The amount was a sum certain and there could be no question, as to the amount of interest, if any, allowable.

We are not unmindful of the holding in the case of Iron Railway Co. v. Lawrence Furnace Co., reported in 49 Ohio St., 102, where the court held no interest-could be allowed on a penalty enforced against a railroad for overcharge of freight, and used language in the opinion from which might be inferred that interest was purely statutory, but it will be noticed that the court fortified itsélf in its conclusion by saying “besides, no interest was claimed in the petition.”

Application for rehearing and modification of judgment denied.

Shohl and Cushing, JJ., concur.


author: Hughes, J.; Kinder and Crow, JJ.,

text:
    EFFECT OF DIVORCE PROCEEDINGS RELEASING PARENT FROM SUPPORT OF CHILD.
    Court of Appeals for Crawford County.
    Ira T. Rowland v. The State of Ohio.
    Decided, February 5, 1921.

      Parent and Child — Release of Father Under a Divorce Decree from Support of Minor Child — Absolves Him from Prosecution for Failure to Contribute, to Child’s Support.

    A judgment entered in a divorce proceedings, releasing the defendant, father, from any further responsibility regarding his minor child, whose custody, support and so forth is committed to the mother, is available to him as a defense against a prosecution under Sec- . tion 1655, General Code, for failing to contribute to the support • of such child.
    TV. J. Schwenck for plaintiff in error.

      Chester A. Meek, for defendant in error.
   Hughes, J.; Kinder and Crow, JJ.,

concurring.

The defendant was convicted under Section 3655 General Code, for failing to contribute to the support if his minor child.

The affidavit under which the conviction was had, was filed by his wife, charging him, in substance, with being the parent of this child and charged by law with the support and mainter nance thereof.

The record discloses that the defendant and his wife had been divorced and in the judgment of the court granting the divorce, is contained the order that the custody, care, education, control, support and maintenance of the child is awarded to the wife, and the defendant is released from any further responsibility regarding said child.

Under General Code, Section 7997 the husband is charged by law with the support of himself, his wife and minor children so long as he is able to do so by reason of property, wages or labor. And this obligation which the law casts upon the husband, and father of a minor child, abides with him so long as the child remains under the age of sixteen years.

Section 11897, General Code, found in the chapter on divorce and alimony, gives jurisdiction to the court to make such order for the disposition, caire and maintenance of the children as .is just.

Section 1655 of the General Code, under which this defendant was convicted, provides that whoever being charged by law with the maintenance of a child, and neglects his 'duty, shall be guilty of an offense.

It will be observed 'that a requisite, under this section, is that the defendant be charged by law with the'maintenance of the child. The court, in the divorce proceedings having taken from him the custody and maintenance of the child, and having released him from any further responsibility regarding said child, he is, in the opinion of this court, no longer charged with the duty of maintenance.

' We are not unmindful of the decisions of our Supreme Court in which it is held that a husband is not relieved from the responsibility of maintaining Ids child when the custody in the divorce proceeding has been taken from him and given to the wife. It will be observed, however, by a reading of the opinions in these eases, that in none of the eases did the divorce court charge the wife with the maintenance and release the husband therefrom, as was done in the case at bar.

It is well recognized within the state that changed circumstances and conditions will warrant a court in modifying its former order regarding the welfare of the children, and so long as this order remains in force and effect we are of the opinion that it is available to the defendant as a defense against a prosecution for failing to maintain his child under such circum, stances.

Section 1655 of the General Code, above referred to, makes no attempt to define the duties or obligations of either the husband or wife regarding their children, and the Legislature, in our opinion, has given jurisdiction to the divorce court to modify the primary obligation of the husband as defined in Section 7997. by the provisions set forth in Section 11897.

For the reasons above set forth, the judgment is reversed.


author: Metcalfe, J.

text:
    ACTS FORBIDDEN BY THE CONSTITUTION BUT AS TO WHICH THE GENERAL ASSEMBLY HAS NOT ACTED.
    Court of Appeals for Jefferson County
    Abe Hoffrichter v. The State of Ohio.
    Decided, May 27, 1920.

      Mayor — Improper Statements hy, not Prejudicial to a Defendant, When —One Accused of Keeping a Place Where Intoxicating Liquors are Sold not Entitled to a Jury — Effect of a Constitutional Declaration Mahing an Act Unlawful.

    1. Improper statements made by a mayor regarding the course he would pursue with persons brought before him charged with offenses will hot be regarded as prejudicial in a case where on the undisputed evidence it was the duty of the mayor to convict.
    2. In a prosecution under Section 13195, General Code, the defendant is not entitled to a trial by jury. Inwood v. State 42 O. S., 186, followed.
    3. Section 9, Article 15, Constitution of Ohio in effect May 26th, 1919, forbids the sale of intoxicating liquors as a beverage. The sale of such liquors after that date was in violation of law, without regard to the fact whether the General Assembly had enacted legislation to enforce such provisions with penaltties or not. It is not the penalty which makes the sale unlawful, but the fact that -it is prohibited. Hence, keeping a place where intoxicating liquors were sold as a beverage after May 29th, 1919, is punishable under the provisions of Section 13195, General Code.

      Jay Pa/isley, for plaintiff in error.

      Boy B. Carpenter and B. B. McMaster, for defendant in error.
   Metcalfe, J.

The plaintiff in error was arrested upon a complaint made before the mayor of New Alexandria, charging him with keeping a place where intoxicating liquors were unlawfully sold in violation of law, and upon trial before the mayor was convieted.

The plaintiff urges the following errors. First, that the mayor was so prejudiced he could .not give the plaintiff a fair trial. Second, that the mayor had no jurisdiction. Third, that the plaintiff had the right o£ a trial by jury, and fourth, that there was no law in force making the sale of liquors unlawful within the state of Ohio at the time the alleged offense was committed, and consequently there could be no. prosecution for keeping a place where liquors are sold contrary to law.

As to the first proposition, an affidavit was filed by the plaintiff in which, after stating the circumstances of his arrest, he avers that the'mayor had stated in court at some time, not at the time he was upon trial, that persons who were brought before him and who pleaded “Guilty” would be fined $300, and that those who stood trial would be fined $500; thus, giving notice to those who were brought before him charged with a crime, they would be convicted in any event, and if they stood trial that they would receive a much more severe punishment than if they pleaded “Guilty.” Of course, this statement, if made, was exceedingly improper, and if there was anything in the record to show that that attitude of the mayor was carried into this case, it would reverse the case* undoubtedly, but we do not find that it worked to the prejudice of the plaintiff, for upon the undisputed evidence in the ease it was the duty of the mayor to convict him.

As to the question of the jurisdiction of the mayor to try this case without the intervention of a jury Section 4536 gives to the mayor authority co-extensive with the county, to try cases of misdemeanor where the penalty is by fine only.

In the case of Inwood v. State, 42 O. S., 186, the Supreme court held in cases of prosecutions for misdemeanors where the punishment was by fine only that the defendant did not have a constitutional right to a trial by jury.

In Cincinnati v. Steinkamp, 54 O. S., 290, the case is cited with approval, and in In re Kinsel, 64 Kansas, 5; 56 Lawyer’s Reports Annotated, 475, the case is discussed and followed.

The same question was before the Kansas court as in the Inwood case. The Inwood case is expressly followed in State v. Smith, 69 O. S., 196, and is cited as determining that question authoratively in State v. Borham, 72 O. S., 358. So, we think that question is not an open question now.

The only remaining question in this case is as to whether there was a law in force which made the sale of intoxicating liquors at the time the acts charged in this affidavit were committed, unlawful.

Section 13195 provides:

“"Whoever keeps a place where intoxicating1 liquors are sold, furnished or given away in violation of law, shall be fined, etc. ’ ’

This act is charged to have taken place on the 9th day of October, 1919, subsequent to the 26th day of May, 1919, when the Prohibition Amendment to the Constitution went into effect. It is insisted that by virtue of that amendment the existing laws relating to the sale of intoxicating liquors were repealed.

Section 9 of Article 15 is the section prohibiting the manufacture and sale of intoxicating liquors and reads as follows:

“The sale and manufacture for sale of intoxicating liquors as a beverage are hereby prohibited. The General Assembly shall enact laws to make this provision effective. Nothing herein contained shall prevent the manufacture or sale of such liquors for medicinal, industrial, scientific, sacramental, or other non-beverage purposes. ’ ’

At the time that the acts charged in this affidavit were committed, it is said that there was no law in effect providing penalties for the sale of intoxicating liquor. No law had been passed that was effective, at least, to carry into effect the provisions of the prohibition amendment, and probably most of the legislation relating to the sale of intoxicating liquors which was upon the statute books, was repealed or at least became inoperative when the prohibition section went into effect.

But, would the constitutional amendment repeal a law which was not in any way obnoxious to any of its provisions? That section was in effect before the constitutional amendment was passed. But the amendment does not expressly or by implication repeal it. If it repealed any laws at all, it would be only such as were obnoxious to its provisions or such laws as it was designed to do away with like the various local option laws, but, would it repeal a law which imposed a penalty for keeping a place where intoxicating liquors were unlawfully sold? "We think not.

It is insisted that the laws passed by the General Assembly at that time imposing penalties for sales of intoxicating liquors, were not in force, there could be no unlawful sale, and consequently the beeping of a place would not be unlawful; but does it follow that the sale of intoxicating liquors as a beverage was not unlawful because no penalty was attached to the act of selling it?

The sale is expressly prohibited by the Constitution itself; therefore, it is unlawful. It is true that no penalty attaches to the sale of intoxicating liquors until the Legislature has enacted laws which impose a penalty, but that makes no difference with the fact itself that the sale of intoxicating liquors was unlawful. It was unlawful’ because it was prohibited by the Constitution.

It is not the penalty itself that makes the sale unlawful, but it is unlawful because it is prohibited. The sale itsef, being unlawful, it follows that keeping a place where intoxicating liquors are sold as a beverage is keeping a place in violation of law, to-wit, in violation of the constitutional provision forbidding it.

Therefore, we think there is no prejudicial error in the record in this case and the judgment is affirmed.

Judgment affirmed.

      Affirmed by the Supreme Court, February 15, 1921.


author: Cushing, J.

text:
    NO PROPERTY RIGHTS IN SOVIET LITERATURE.
    Court of Appeals for Hamilton County.
    Lotta Burke, on Behalf and for the Benefit of Local Cincinnati of the Communist Labor Party, etc., v. The American Legion of Ohio, Robert E. Bentley Post, No. etc., et al.

    Decided, July 11, 1921.

      Communism — ■Literature Advocating Treasonable Doctrines — Not Tinder the Protection of the Lav: — Damaqi s for Its Destruction not Re coverable

    In an action for damages for the destruction of soviet literature, when it is admitted that the object of the organization on whose behalf plaintiff sues was the overthrow of the Government of the United States and Ohio, by taking possession of the Governments, the industries of the country, its natural resources and the food supply and holding them by force, and establishing in this country a soviet government under the immediate direction of the Third Internationale at Mcsoow, in Russia, by a method other than by a vote of the people of this country, held, that the law will regard as an injury for which damages may be awarded that only which contravenes and interferes with a recognized legal right.

      Joseph W. Shafts, for plaintiff in error.

      Edaiiard Colston, Joseph S. Gray don and Constant South-worth, contra.
    Error to the Superior Court of Cincinnati.

       Affirming Burke v. American Legion et al, 18 O L. R., 115.

   Cushing, J.

Plaintiff brought an action as a representative of the Cincinnati Local of the Communist Labor Party of Ohio against the American Legion of Ohio, a corporation under the laws of the state of Ohio, the Robert E. Bentley Post No. 50, of the American Legion, a corporation under the laws of the state of Ohio, and a number of individuals, members of the Robert E. Bentley Post..

Plaintiff claims that the Communist Labor Party was organized for the purpose of holding meetings for educational and social purposes, conducting lectures, discussing political and economic questions, conducting political 'campaigns, and distributing literature; that the defendants, other than the corporations named, destroyed certain property used in the furtherance of the scheme to establish in this country a soviet government, consisting of books, pamphlets, literature, etc., the property of the said local; that by reason of the acts and conduct of the defendants said local was brought into unfavorable notoriety; that its members were without police protection, and were deprived of the proposed use and enjoyment of their headquarters and the right of peaceable assemblage, to their damage in the sum of about fifty thousand dollars, for which they prayed judgment with costs.

The answer of the defendants admitted the incorporation of the American Legion and the Robert E. Bentley Post, No. 50. the membership of the defendants, and that the plaintiff and those on whose behalf the action was brought are members of the Cincinnati Local of the Communist labor Party of Ohio, and were such November 1.8th, 1918.

The answer denied that the purposes of said association were correctly stated in the petition, and averred that the plaintiff and her associates were engaged in a criminal conspiracy against the Constitution and laws of the United States and of the state of Ohio; that the purpose was to bring about the subversion and downfall by violence of the Constitution of the United States, its Government, and that of Ohio, and to substitute therefor, by revolution and violence, a soviet form of government; and further charged that the plaintiff and her associates were in the act of uttering, printing and publishing scurrilous and abusive language of and concerning the form of Government of the United States, and of Ohio, contrary to the statutes, and that the alleged meetings and lectures, campaigns and the distribution of literature were used as a means whereby said aims and purposes of said conspiracy would be advanced and promoted; that plaintiff and her associates advocated the unlawful method of terrorism as a means of accomplishing their said industrial and political reform.

Plaintiff’s reply admitted tbaf the purpose of tlicir organization w«s to bring about fundamental changes in the political and industrial systems of the United States, and to that extent admitted a revolutionary purpose. She denied that the downfall of the Government was to be accomplished by violence, and restated that the form of government to be installed in the United States and Ohio was to be the form prescribed by the Russian Soviet or Third Internationale, and was to be in favor of, and under the control of the wage workers, members of said organization, to the exclusion of all other classes of people in the United States; that the government so to be established wa^ to be a dictatorship, directed and controlled by the. organization at Moscow in Russia; that the people of the United States were to be subjects of the world soviet organization, and not citizens of the United States. That means, as we understand it, the people are to be deprived of the right to vote; nor are they to have any voice in matters of government, be it national, state or municipal; they may not choose or pursue for themselves any business, trade, avocation, or profession, but in all such matters they must obey the dictates of the soviet. Neither can they acquire or own property of any kind, character or description. The ownership and control of all property, and all individual liberty, life and the pursuit of happiness is to be taken from the individuals and vested in the dicta!or. The dictator is not to be selected 'by the people of the United States He is to be named by the Third Internationale at Moscow.

The plan proposed for bringing about this change was that the members of the plaintiff’s organization, whether they be citizens of Ohio, or the United States, or foreigners, should proceed from their places of assemblage, whatever that means, to take charge of the Government, the industrial institutions of the country, its food supply, mines and railroads, and, after having so taken charge, such force would be used to prevent 'tin-citizens of the United States, including its Army, from interfering with the dictatorship thus established. This means, that the change would be brought about in the manner stated and not by ballot.

The basis of this action is in tort for the destruction of literature and humiliation brought about by the. acts of the defendants.

The situation thus presented requires some consideration of the present form of government of the United States, and the state of Ohio, the duty of courts, the rights of- the parties, whose admitted purpose is the destruction of the present form of government, and a substitution of another form in the interest of one class of people only, and that by a method unknown to the Constitution and laws of this country.

This Government is a Republic. Its governmental affairs are open to all citizens, and are administered by the few as the representatives of the many. The underlying principle is the right of representation, and the duty imposed on every citizen to take part, in the selection of such representatives. The people own the Government, and operate, it through their chosen representatives, for the equal benefit of all citizens, without respect to persons.

The government proposed by the plaintiff and her associates is a dictatorship, which means, in this instance, a centralization of power in one or a few individuals. Centralized governments have existed only for such length of time as the ruling class Was able to hold in subjection the people not within the ruling class.

For the quarter of a century, last past, there have been two trends away from this Republic, or the representative form of Government. One, toward a pure democracy. The other, toward a centralization of authority. For some years there has been persistent propaganda to speak of this government as a democracy rather than a republic. Both trends have had earnest advocates. From these trends, it was an easy step for the Socialist Labor party to conclude that the people of this country were not satisfied with our present form of government, and in their desire for a change from a Republic, that the people could be induced to adopt the soviet form of government, the most radical form of centralization, 'as easily as they could an absolute democracy.

The statements of counsel for plaintiff in open court lead to the conclusion that the organization of which plaintiff' was a member, when considered in connection with the Constitution and laws of the United States and of the state of Ohio, might be considered a public nuisance. And if we consider the citation of-authorities on which he relies for a reversal, wie may conclude that the literature, pamphlets and the acts of the said organization might also be considered a public nuisance.

It is claimed by plaintiff that no citizen or group of citizens has a right to abate a public nuisance. In support of this contention, counsel for plaintiff cites the case of Mecker v. Van Rensslaer, 15 Wendel (N. Y.) 397. The question in that case arose from the fact that some fifty occupants of a tenement house in Albany, N. Y., were stricken with the cholera, and if was held that the citizens had no right to abate the public nuisance thus created.

Other cases cited were such as running a vessel into and destroying. an oyster- bed, the pollution of a stream, blocking a lighthouse, and the interference by a telegraph company with branches of trees on a highway.

Counsel also cites and quotes at length from Railroad v. Keith, 67 O. S., 279. The facts in that case were that the railroad company had failed, as required by statute, to construct and keep open ditches of sufficient depth, width and grade to conduct to a proper outlet the water that accumulated along its railroad bed.

Another case cited by counsel was Kasch, etc. v. Akron, 100 O. S. 229, where it was held that a municipality has authority to abate a nuisance. It was held that where an owner of private property permits stagnant water to be and remain upon his land, thereby endangering the public health, a municipality has the authority to direct the proprietor to abate the nuisance, and, upon his failure, it may enter upon the premises and abate it, and assess the costs against thé land.

None of the eases cited are authority for this case.

The other view of. the situation is, that the men here accused, and their associates, were called to defend this country against a threatened, if not an attempted invasion by a foreign power. In that service, they vrere sent to a foreign land. There they were confronted first with the havoc, desolation, suffering and misrule of centralized government. They had the opportunity and saw the oppression, starvation and tyranny of the dictatorship of the soviet, or Third Internationale form of government.

After the war was over and the citizen soldiers had returned to this land, where every citizen, regardless of class, is guaranteed the right to life, liberty and the pursuit of happiness, with their sturdy forms, fine brown faces, and helmet covered heads, swinging in unison from the ports of disembarkation, they scattered to their homes little dreaming that their welcome home was not unanimous. However, they soon saw the soviet openly advancing its propaganda, pledged to overthrow this Government. Their minds became so inflamed that for the moment they forgot the usual self-restraint and destroyed some seditious literature.

Their counsel conteud that the literature destroyed was without value, and, therefore, plaintiff and her associates are not entitled to damages.

The literature destroyed advocated the seizure of Government, the transportation facilities, the food supply, and the business organizations of the country. And while the- plaintiff disclaimed any intention to use force in the seizure above stated, her counsel admitted that force would be used to hold possession after it had once been taken. Such acts would be. a destruction by violence, the same as if armed force was resorted to in the first instance.

Plaintiff complains that she has been deprived of the right of assemblage and due process of law. Under the facts in this case, that is a strange and most unusual contention. While Section 16 of Article I of the Constitution of Ohio guarantees to every person for injury done him in his lands, goods, person or reputation a remedjr by due course of law, plaintiff in this case can not complain. Her cause whs submitted in an orderly manner to a court and jury. The jury found that she had not been damaged. She is not satisfied with that judgment, and this court is asked to say that it was erroneous. Such a holding would in effect be that the court would lend its aid in the destruction of the laws and Constitution of the United States and of Ohio. Lord v. Cadbourne, 42 Mo. 429.

The business of the plaintiff, and the organization of which she is a member, is unlawful. Perhaps a more accurate statement of the situation would be, that the plaintiff and her associates were using their best efforts to destroy the laws of this country, and to establish in the place of the laws by which we are governed, a government of individuals. For interfering with their efforts and destroying literature in furtherance of their plan, the defendants were sued in tort. Under the facts in this ease, as in the case of Frazier v. Brown, 12 O. S., 294, at 299, the law will regard as an injury that only which contravenes or interferes with a recognized legal right.

From a consideration of the record, we find that the verdict and judgment of the court below are not manifestly against the weight of the evidence, and that judgment will, therefore, be affirmed.

Hamilton, P. J., and Bucitwaltf.r J., concur.