text:
    COMPLIANCE WITH THE CONDITIONS OF A WRITTEN CONTRACT PRECEDENT TO RECOVERY.
    Court of Appeals for Lucas County.
    The Northern Assurance Company v. Frank F. Kehoe.
    Decided, June 2, 1913.

      Insurance — Denial by an Adjuster of Liability for Loss by Fire — Not a Waiver of the Requirement as to Proofs of Loss, etc., When — Evidence of a High Character Required to Brush Aside' Conditions of a Contract.

    In the absence of evidence that an insurance adjuster had authority from the company to' deny liability on the policy in suit, the fact of such denial by an adjuster on the ground that the insured had himself caused the fire does not amount to a waiver of conditions of the policy and particularly of those relating to appraisement of loss and the malting of proofs of loss.

      J. W. Mooney and Doyle (& Lewis, for plaintiff.

      B. F. Ritchie and J. FL. Doyle, contra.
    Kinkade, J.; Richards, J., and Chittenden, J., concur.
   The action below was based upon a policy of fire insurance. The plaintiff claimed a total loss of the property covered by the policy, stating the value of the property destroyed by fire at $2,-728, and prayed a judgment for $2,000, the amount of the policy. To the petition as filed was attached a copy of the insurance policy, and the insured averred in the petition that he had performed all the terms and conditions of the policy to be by him kept and performed. The assurance company answered setting up numerous conditions of the policy and alleging the violation of each of the conditions set forth and denying all liability. In the reply the insured reaffirmed in general terms that he had complied with all the terms of the policy and then set forth in detail a specific compliance with the various conditions of the policy alleged by defendant to have been violated. Later' an amendment and supplement to the reply was filed in which the plaintiff averred that the assurance company subsequent to the fire denied all liability. Thereafter an amended petition was filed by the insured in which various conditions of the policy are set forth showing the grounds on which the policy might become void, and these portions of the amended petition are followed, by. the statement “for a,more particular description of each and every item of the term's and conditions of said policy aforesaid, plaintiff hereby refers to said policy attached to the petition filed herein.” Following the clause quoted, the amended, petition states the averment that the insured had not violated any of the conditions set forth in the amended petition as being in the policy, and that none of the things as described in. the amended petition existed at the time of the fire which would avoid the policy, and following this the amended petition contains the following statement:

“Immediately after said fire said plaintiff notified said defendant of said loss and thereupon said defendant denied any and all liability to said plaintiff for the loss by him incurred as aforesaid, and charged and alleged that said fire had been occasioned by his own act.”

The assurance company filed an answer to the amended petition, setting forth various conditions and provisions of the policy of insurance and stating particularly with respect to each that there had been a violation thereof by the insured. The reply denied the allegations of the answer to the amended petition. At the close of the plaintiff’s evidence the defendant moved the court for'a directed verdict in its favor, which was overruled and exception noted and at the close of all the evidence, this motion was renewed by the defendant, again overruled and' exception saved. The jury returned a verdict in favor of plaintiff for $1,293.80. The motion for new trial was made and overruled and judgment entered on the verdict.

It is not contended here that the plaintiff below complied with all the provisions ■ and' conditions of the insurance policy to be kept and performed by him, but the contention is that in so far as he did not comply with the provisions of the policy ás he stated in his amended petition, the terms and conditions of the policy were waived by the company by its denial of liability.

Stating the evidence as favorably as it can be stated for plaintiff below on the subject of the denial of liability by the company, it amounts to this and only this: that the adjuster who came to adjust the loss after the fire stated to the plaintiff that the company was not liable and would not pay and assigned as a reason for the non-liability that the plaintiff himself had caused the fire that destroyed the property. No claim, is made by plaintiff that any one representing the company other than the adjuster made any statement in the nature of a denial of liability; and no claim is made that this denial of liability was in writing nor is it claimed that any waiver of any provision or condition of the company was ever endorsed upon the policy. The adjuster was called as a witness for the company and denied having made the statements attributed to him by. the insured. The defendant contended below and contends here that even conceding that the statements were made by the adjuster at the time and in the form and under the circumstances stated and claimed by the insured, that still they did not amount to a. denial of liability by the company for the reason that there was no evidence to show that the adjuster had any authority from the company to deny its liability on the policy, and no authority to waive any of the conditions of the policy, and that this being true, that which was .stated by the adjuster could in no event be held as- sufficient to waive the provisions of the policy, several of which the company claimed had been violated by the insured and particularly the provisions of the policy with respect to appraisement of the damage and proofs of loss. On the other hand the insured contends that under the clause quoted from the amended petition and the evidence produced in support of it, which was as I have stated, the company waived all provisions of the policy not performed by the insured and particularly .that it waived the provisions of the policy with respect to appraisement and ascertainment of the loss and the making of proofs of loss within the time required by the policy.

To state that one who relies for a right of recovery upon a written contract must show that he has himself complied with the conditions precedent to a recovery stated in the contract, or he must show that the performance of those conditions has been waived is but to state an elementary proposition of law familiar to all lawyers and the courts. It has been definitely and plainty laid down, not only by our own Supreme Court, but by the Supreme Court of the United States and most every inferior court so many times that it certainly ought to be understood, but for some unaccountable reason these principles appear to be regarded as not applicable to certain kinds of written contracts, particularly building contracts a.nd contracts of insurance, and hence it is- found necessary to keep re-stating what the law is in this respect or to at least cite cases where it may be found.

The policy of insurance in question contained the following provisions:

“This policy is made and accepted subject to the foregoing stipulations and conditions, and to the following stipulations and conditions printed on back hereof which are hereby specially referred to, and made a part of this policy, together with such other provisions, agreements, or conditions as may be endorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.
“This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value; with proper deduction for depreciation however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of-like kind and quality; said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable-sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy.
“In any matter relating to this insurance no person, unless duly authorized in writing, shall be deemed the agent of this company.
.“If fire occur the insured shall give immediate notice of any loss thereby in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon; and, within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item thereof and the amount of loss thereon; all encumbrances thereon; all other insurance, whether valid or not, covering any of said property; and a copy of all the descriptions and schedules in all policies; any changes in the title, use, occupation, location, possession, or exposures of said property since the issuing of this policy; by whom and for what purpose any budding herein described and the several parts thereof were occupied at the time of fire; and shall furnish, if required, verified plans and specifications of any building, fixtures, or machinery destroyed or damaged; and shall also, if required, furnish a certificate of the magistrate or notary public (not interested in the claim as a creditor or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances and believes the insured has honestly sustained loss to the amount that such magistrate or notary public shall certify.”

I

Our own Supreme Court in the ease of Ashley v. Henahan, 56 O. S., 559, in speaking of an attempted waiver of the terms of a witten contract, used this language in the fifth paragraph of the syllabus:

“Such stipulation being for the benefit of the employer, proof of a waiver must either be in writing or by such clear and concise evidence as to leave no reasonable doubt about it.”

And on page 573 of the opinion, the court used this language:

“We suppose the law to be that the contract must control unless its provisions have been clearly waived. Some of the authorities maintain that there must be an express waiver; and all agree, or should agree, that nothing short of evidence of the most satisfactory character should be permitted to brush aside a contract which the parties have deliberately made. They have determined that certain things shall be proved only by written evidence. To that extent that is the law of 'this case. It is the duty of the court to enforce that law unless it appears that the parties have abrogated it. Has it been thus abrogated? If the owner has intentionally relinquished a known right, the plaintiff should be able to show it either in express terms or by acts and conduct equivalent thereto. Equivocal conduct or conduct of doubtful import is not sufficient.” (Cite authorities.)

The language of our Supreme Court in the case just cited is quite as applicable to an insurance policy as it is to a building contract. Almost every provision and condition in the standard form of fire insurance policies has been before our Supreme Court for consideration. We call attention to the following authorities, to-wit:

Union Central Life Insurance Co. v. Hook, 62 O. S., 256, paragraph one of the syllabus:

“1. In ai. action to recover on a written contract for life insurance and upon an alleged subsequent verbal modification of the same, statements and representations made by the agent who solicited the policy, prior to and contemporaneous with the issue of the policy, are inadmissible to vary, in any respect, the terms of the written policy. In the absence of proof of fraud or mistake, such statements and representations are merged in the written contract.”

Eureka Fire & Marine Insurance Co. et al v. Baldwin, 62 O. S., 368, paragraphs one and three of the syllabus:

“1. Where a party avers that he has performed all the conditions of a contract to be by him performed, his proofs upon the trial must show such performance in order to entitle him to a recovery. Under such'an averment it is not competent to prove a waiver of such conditions. If the waiver of conditions is relied upon, such waiver must be averred in' the pleadings.
“3. The power of an agent to waive conditions in a policy of fire insurance is not different from the same power in life insurance. As to such power, Union Central Life Insurance Co. v. Hook, 62 Ohio St., 256, is followed and approved.

Ohio Farmers’ Insurance Company v. Titus, 82 O. S., 161, first paragraph of the syllabus:

"1. An insurance company can not be deemed to have waived a condition in a policy of fire insurance rendering it void. 'If the subject of insurance or any part thereof, or the real estate or any part thereof described in the application as that on which any building insured herein is situated now is, or shall hereafter be incumbered by mortgage or otherwise ’ unless by- agreement endorsed hereon, or added hereto, simply because its .agent had notice or knowledge of the existence of a mortgage incumbraneé and received premiums, when an agreement as to such mortgage was not endorsed on the policy and where such policy also provided that ‘No officer, agent or adjuster or other representative shall have power to waive or alter any of the provisions or conditions of this policy, except such as by the terms of this policy are made subject of an agreement endorsed hereon or added hereto and as to such provisions or conditions, such waiver or alteration, if any, shall only be valid when actually endorsed hereon or added hereto by such officer, agent or adjuster; nor shall any permission or privilege affecting this insurance exist or be claimed by the insured unless so written, endorsed or attached.”

Scottish Union Nat. Ins. Co. v. Encampment Smelting Co. 166 Federal, 231, paragraph one of the syllabus:

‘1. Insurance — Proof of Loss — Requirements of Policy— Waiver. — Where a policy of fire insurance expressly provided that in ease of loss a written and verified proof of loss should be made by the insured containing certain stated and detailed information, such proof of loss is an essential condition precedent to the company’s liability unless waived; and where it further provided that no officer, agent, or other representative of the company should have power to waive any of its conditions except in writing indorsed thereon or attached thereto, the failure -to make such proof of loss is not excused by a claimed- waiver, not in writing, by an agent of the company not shown to have any express authority to make it and whose action was not ratified by the company. ’ ’

Northern Assurance Company v. Grand View Building Association, 183 United States Reports, 308, paragraph six of the syllabus:

"Contracts in writing, if in unambiguous terms, must be permitted to speak for themselves, and can not, by the courts at the instance of one of the parties, be altered or contradicted by parol evidence, unless in case of fraud or mutual mistake of facts, and this principle is applicable to cases of insurance contracts.”

The precise question presented here was passed upon by this court in the case of Billings v. National Insurance Co., 17 Circuit Decisions, 27 C. C., page 582. This court there decided that statements made by an adjuster sent by the company to adjust the loss could not be held to operate as a waiver of any of the conditions of the policy, and cited numerous authorities in support of the position then taken. The question presented in that case had been fully argued in the court of common pleas, and the opinion of the trial judge (Judge Morris) with many authorities cited is found in Volume 14 Ohio Decisions N. P., page 387.

After a very full examination of all the authorities presented for our consideration, we see no reason to modify the position taken by this court in the case of Billings v. National Insurance Company, cited. We are clearly of the opinion that the evidence produced by plaintiff below in support of the claim of denial of liability by the company was insufficient to show any such denial by the company as would amount to a waiver of any of the conditions, and provisions of the policy, and this being true, it follows that the motion of the defendant below for a directed verdict in its favor should have been granted.

The judgment of the court of common pleas will be reversed and the judgment that should have been entered by that court will be entered, here, dismissing the action at the costs of the defendant in error.


source: Caselaw Access Project

author: Per Curiam

license: Public Domain

text:
    CONSTRUCTION OF AGREEMENT FOR PURCHASE OF OPTIONS.
    Circuit Court of Hamilton County.
    Robert Kuhn v. William Warnock and Charles Strahl.
    Decided, February 2, 1905.

      Contracts — Parties Employed to Secure Options on Coal Lands — Construction of Agreement as to Compensation and by Whom to be Paid — Weight of Evidence.

    Where the significance and meaning of a conversation, embodied in the testimony submitted to the jury, depends upon the emphasis which was placed on certain words and particularly on the pronoun “I,” a reviewing court will give it a construction consistent with the finding of the jury.

      Max B. May, for plaintiff in error.

      Shay & Cogan, contra.
   Per Curiam

(Giffen, Swing and JeLke, JJ.).

The only error complained of in this case is that the verdict and judgment of the court below is against the weight of the evidence.

Counsel for plaintiff in error in his zeal has urged upon us not to apply, without great and careful consideration, the principle that a reviewing court will not disturb the judgment, on the ground that the verdict is against the weight of the evidence, unless it is manifestly so. ^fter a careful reading of the record, we are of opinion that this is par excellence a ease for the application of this rule.

It appears that the defendant, Robert Kuhn, was the president and acting as the representative of the Empire Coal Mining Company, in securing a large number of options embracing a wide tract of coal land. In his capacity as president, or such representative, he had given Warnock and 'Strahl general instructions as to the terms and methods on which they were to acquire these options.

It developed that there were three parcels of land in the middle of this tract which they had failed to secure, and that at a meeting in the office of Theodore Neff, in Bellaire, said Warnock and Strahl reported their failure, and said they were unable to secure these parcels of land on the terms provided in their instructions. It seems, thereupon, Mr. Kuhn withdrew these gentlemen either to another room or to a different part of the same room, where the following conversation took place, as narrated in the testimony of Mr. Strahl:

“A. He said to me, ‘What is the reason that you haven’t these three farms optioned?’ I told him that the farm — those three wouldn’t take the price that we had been optioning the other farms for, and he says, ‘What will they'take?’ I says, ‘I don’t know, but I believe they can be got for fifteen dollars an acre.’ ‘Well,’ he says, ‘go and take them.’ My next question was, of course, ‘What is in it. for us, Mr. Kuhn, if we go and take these options?’ And he says, ‘I will tell you. If you go and take these options up and take them up in my name that I will pay you the half of the difference between the option price and fifteen dollars an acre.’ And he went and — well, I believe Mr. Kuhn at that time give us his address — yes—where to send those options to, and said to send them to him; take them up in his name and send them to him at the McClure House in Wheeling.”

It seems clear that the transaction in regard to these three parcels of land was to be under a different and separate arrangement from that under which the options had been procured on the other parcels in the tract.

The significance and- meaning of the conversation would be directly opposite, dependent upon what emphasis was put upon the pronoun “I” in this conversation. As this appears in the cold typewritten record, we can not tell, excepting that we are bound to give it a construction consistent with the verdict and judgment below. If Mr. Kuhn said:

“7 will tell you. If you go and take these options up and take them up in my name that 7 will pay you the half of the difference between the option price and fifteen dollars an acre,”

it would be very plain who was the principal and for whom Warnock and Strahl were acting in securing these options, and who should pay the commission.

We find nothing necessarily inconsistent in the letter of May 11th, 1901, with the view that Robert Kuhn was the principal in this transaction. It would seem, after a reading of the record, that with Robert Kuhn acting either for himself or for the Empire Coal Mining Company, it would not be expecting too much of him by way of business courtesy, to have looked after the interests of Warnock and Strahl, and at least to have called their attention to the closing up of matters, so that their rights could have been defined and their claim then asserted. It may very well have been that this indifference on the part of Mr. Kuhn prejudiced him in the eyes of the jury and led them to somewhat discount his testimony. If they did so, that was within their province. Not having any of these parties before us and so much in this record being susceptible of either one of two opposite constructions, we are compelled to apply the principles first above mentioned,

Judgment affirmed.


author: Jones

text:
    LESSOR. MADE JOINT TORT FEASOR WITH LESSEE.
    Court of Appeals for Hamilton County.
    The Kroger Grocery & Baking Company v. Blanche Greenland.

    Decided, July 13, 1914.

      Landlord and Tenant — Made Joint Tort Feasors — By Settlement with Landlord for Injury Received on the Premises.

    Settlement with the lessor for injuries received on the premises makes the lessor a joint feasor with the lessee and bars an action against the lessee for damages on account of the same injury.

      R. A. LeBlond, for plaintiff in error.

      O. M. Dock, contra.

      Affirmed without opinion, Greenland v. Kroger Grocery & Baking Co., 92 Ohio State, —.

   Jones

(E. H.), J.

In the court below the defendant in error recovered a judgment of $1,000 against the plaintiff in error, as damages for injuries received by her through an alleged defect in the sidewalk at the base of steps leading into the store of the plaintiff in error company on Reading road in the city of Cincinnati.

Four grounds of reversal are set forth and argued in the brief for plaintiff in error, as follows:

1. That there was no liability on the part of the defendant below.

2. That the plaintiff was guilty of contributory negligence and could not recover.

3. That there was no evidence of the defendant having created or maintained the defect complained of.

4. That the plaintiff’s release to Mrs. Thale, as set up in the second defense of the answer, was a complete defense both under the doctrine of estoppel and as a full settlement of the injury received.

As to the first three grounds, we find against the plaintiff in error.

The question presented by the fourth proposition is one not free from difficulty, and one to which we have given much time and thought. After examining the authorities cited in the excellent briefs of counsel on both sides we have reached the conclusion that the settlement with, and the release given, to Mrs. Thale, the lessor, to Mrs. Greenland, was a bar to any action against the Kroger Grocery & Baking Company. Said release reads as follows:

“Cincinnati, Ohio, May 9, 1911.
“Know Ale Men by These Presents:
“That Whereas, Blanche Greenland, is about to institute an action for damages resulting from an injury sustained on the 11th day of March, 1911, on the premises of Christina Thale, in the Court of Common Pleas of Hamilton County, Ohio, and whereas the said Blanche Greenland and the said Christina Thale, through their respective attorneys, have agreed to compromise and settle said claim and all liability in the premises against the said Christina Thale by the payment to the said Blanche Greenland or her attorney, by the said Christina Thale, the sum of three hundred ($300) dollars.
“Now, Therefore, I, Blanche Greenland, in consideration of said sum of three hundred ($300) dollars, received to my full satisfaction of the said Christina Thale, do hereby release and forever discharge the said Christina Thale from all claims, demands, damages, actions and causes of actions whatsoever, including such as have arisen by reason of or in any manner grow out of said injury.
“In Witness Whereof I have hereunto set my hand this 9th day of May, 1911.
“(Signed) Blanche Greenland.
“In presence of
“Oliver M. Dock.”

The petition in this case shows that the injuries therein complained of are the same injuries for which Mrs. Thale settled with Mrs. Greenland, and in the threatened suit against Mrs. Thale, had the same been brought, the allegations of negligence would necessarily have been similar to those contained in the petition herein.

Cooley gives the test to be applied in determining whether two or more persons are joint tort feasors in the following language (Cooley on Torts, 3d Ed., 246):

“In respect to negligent injuries there is considerable difference of opinion as to what constitutes joint liability. The authorities are, perhaps, not agreed beyond this, that where two or more owe to another a common duty, and by a common neglect of that duty such other person is injured, then there is a joint tort with joint and several liability. The weight of authority will, we think, support the more general proposition that where the negligences of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, design or concert action.”

It is well settled in Ohio, and conceded by counsel on both sides in this case, that but one satisfaction of a claim existing against tort feasors can be enforced. By her action in this' case in making claim against Mrs. Thale, Mrs. Greenland, has made Mrs. Thale a tort feasor, and the tort is joint as between Mrs. Thale, and the Kroger Grocery & Baking Company. The motion for judgment in favor of the defendant below should have been granted, and in refusing same the court erred.

Judgment reversed, and judgment will be entered here for plaintiff in error. . . ' .

Swing, J., and Jones (Oliver B.), J., concur.


author: Richards, J.

text:
    CONSTRUCTION OF A GUARANTY UPON WHICH CREDIT WAS BASED.
    Court of Appeals for Hamilton County.
    Louis H. Landman v. George D. Sauerston et al.
    Decided, March 29, 1915.

      Guaranty — Of Payment for Goods if Credit is Given — Testimony as to Surrounding Circumstances May he Offered — But Must Not Modify ■■ the Written Contract-~-Duration of the Guaranty.

    1. The situation of the parties and the object sought to be accomplished aré competent evidence to aid a court in construing a guaranty, but it is not permissible by the aid of such evidence to modify or-alter the written contract entered into between the parties.
    2. A request to “extend credit to the extent of one hundred dollars to my nephew I. B., for which I will stand responsible,-’ is not a continuing guaranty, but is limited to the first one hundred dollars’ worth of goods purchased.
    Error to the court of common pleas.

      M. L. Bevis, for plaintiff in error,

      G. 8. Bell, contra.
   Richards, J.

The plaintiff in error, who was defendant in the court of common pleas, was sued on a written guaranty reading -as follows:

“Cincinnati, 0., Sept. 22, 1909.
“Messrs. Sauerston & Brown
.“Please extend credit to the extent of one hundred’dollars to my nephew, Isaac Breastin, for which. I. wili stand responsible for, and obliged. ' .
“Louis H. Landman.”

At the close of the evidence each side moved the court for a directed verdict and the court thereupon directed the jury to return a verdict in favor of the plaintiff for the amount of one hundred dollars.

It appears from the evidence disclosed in the bill of exceptions that Breastin was a nephew of Landman and desired to start in the candy business, and that Landman went to Sauerston & Brown, who were wholesale dealers in candy, and inquired as to the extent of credit it would be necessary for his nephew to have with them and whether they would extend credit, which they promised to do. if Landman would guarantee the same. Thereupon he signed the guaranty as above quoted. Subsequent to the making of this guaranty, goods were furnished to Breastin to the amount of several hundred dollars, a large part of which was paid for, but at the time he ceased doing business there remained due Sauerston & Brown an amount in excess of one hundred dollars.

The only question in this case is as to whether the guaranty is a continuing one. The common pleas court held that it was a continuing guaranty and that the liability of Landman thereon was not limited to the first hundred dollars’ worth of goods purchased. In so holding the trial court erred. By its terms the guaranty is limited in extent to the amount of one hundred dollars and would be exhausted when goods to that amount had been furnished and paid for. The situation of the parties and the object sought to be accomplished are competent evidence to aid the court in construing the guaranty, but it is not permissible by the aid of such evidence to modify or alter the written contract entered into between the parties; and it is a fundamental principle in this state that a contract of guaranty must be .construed most, favorably to the guarantor. It was said by our Supreme Court in Birdsall v. Heacock, 32 O. S., 177, 184, that such an instrument should be confined to the immediate transaction, unless the language of the promise is sufficiently broad to show that it was intended to render the guarantor liable for future credits. That such a guaranty should be held to be limited and not continuing, is held in the case above cited and also the following eases: Morgan v. Boyer, 39 O. S., 324; The Merchants’ National Bank v. Cole, 83 O. S., 50; National Bank of Commerce v. Garn et al, 3 C.C.(N.S.), 428.

In the case last cited the guaranty read as follows:

“Toledo, Ohio, June 10, 1895.
“Ketcham National Bank:
“We, the undersigned, hereby jointly and severally guarantee to you the payment of any and all sums of money that may be loaned by you to the Carothers Publishing Company, on request of F. W. Garn, treasurer, providing the amount of said loan shall not exceed in the aggregate, $3,000.”

The circuit court, sitting in Lucas county, held that such a guaranty is not a continuing one but is restricted to the first three thousand dollars loaned.

Counsel for defendants in error relies very largely on the case of Rochford et al v. Rothschild et al, 16 C. C., 287, a decision also by the Circuit Court of Lucas County. In that case the guaranty under consideration was held to be a continuing guaranty, but the written instrument itself. provided that it was to secure the sum guaranteed on open account, and the decision of the court is based upon that particular language. The decision is not, therefore, in conflict with the conclusion we reach in the case at bar.

Counsel for the defendants in error also relies on Wolf v. John Shillito & Company, 9 O. D. Repr., 273, a decision rendered by the old District Court of Hamilton County, but that case appears to have been controlled and the conclusion arrived at by a consideration of surrounding circumstances which are essentially dissimilar from those in the case at bar.

The general principles that control in determining whether a written guaranty is or is not continuing are clearly announced in 1 Brandt, Suretyship & Guaranty (2d Ed.), Sections 156 to 165, inclusive.

It follows from what has been stated that the judgment must be reversed, and, proceeding to enter the judgment which should have been entered in the common pleas, a finding will be made for the defendant below and the petition dismissed.

Chittenden, J., and Kjnkade, J., concur.-


text:
    GAME LAWS NOT APPLICABLE TO TAME SQUIRRELS.
    Circuit Court oí Cuyahoga County.
    W. J. Phillips v. State of Ohio.
    Decided, January 22, 1898.

      Game Laws do Not Apply to Tamed Animals.

    Section 6961, Revised Statutes, making it unlawful to have in one’s possession certain animals, was intended to protect wild game animals, and does not apply to a case where the animals had been reclaimed and tamed and were in one’s possession at the date the law was enacted.
    Hale, J.; Marvin, J., and Caldwell, J., concur.
   The ease of W. J. Phillips against the State of Ohio comes here on error to the court of common pleas.

The plaintiff in error, Phillips, was charged by affidavit, before a justice of the peace of this county, with having in his possession two fox squirrels, contrary to the provisions of Section 6961 of the Revised Statutes of the state of Ohio.

This statute provides in general terms that it shall be unlawful for any person to have, between the first of September and the fifteenth of December, any squirrels in his possession.

The plaintiff in error was tried, convicted and sentenced to pay a fine of $25 and costs. That judgment was affirmed by the court of common pleas, and it is brought here for review, and we are asked to reverse both judgments.

The facts disclosed by the bill of exceptions are, that Phillips had had for some seven years prior to the passage of the present statute, these squirrels in his possession; that they had become tame and were by him kept in the ordinary way in which pet squirrels are kept.

Our Supreme Court have said in 39 O. S., 691, in the case of Moore v. Gibben, that it is the duty of courts in the interpretation of statutes, unless restrained by the letter of the statute, to adopt that view which will avoid an absurd consequence, injustice, or great inconvenience, as none of these can be presumed to have been within the legislative intent.

Of course, this charge is, that the plaintiff in error violated the section of the game law of this state, and that Section 6961 provides that no person shall, on any place, catch, kill, or injure, or pursue with such intent, any squirrel or other animals named (I will leave out the balance of the statute), and in violation of this statute shall be subject to a ,fine of $25 and costs, except between the first day of September and the fifteenth day of December.

Section 6964 provides that whoever purchases, sells, exposes for sale or has in his possession any squirrel, etc., between the first day of September and the fifteenth day of December, inclusively, shall be fined as provided by another section.

It is very evident that this statute, Section 6961, was intended to protect these wild animals named, and to prevent their destruction, and, perhaps, extinction, and made it unlawful for any person to catch, kill or injure, or pursue with such intent, any such wild animals.

It is made unlawful to pursue, while at large, catch, kill or injure such animals.

It was not, in our judgment, the intention of the Legislature to apply the statute to such animals as had been captured and had become the property of the person who made that capture.

Section 6964, which I have read from, it is evident, was passed because it would be difficult and many times impossible to apprehend and punish the person who pursued and killed the game found in possession of another; and, hence, by this section, it is made unlawful for any person to have in his possession any of the animals protected by Section 6961.

But this section should be given by construction, in our judgment, the same limitation as that of Section 6964 and should not be held to apply to animals that had been reclaimed and were subject to lawful ownership.

This man had these squirrels in his possession at the time this section of the statute was passed as it now stands. He could not keep those squirrels in his possession if this statute was intended to apply to him — to a transaction of that kind. He could not kill them; he could not slaughter them; the only thing for him to do would be to turn them loose after they had been tamed and cared for, for seven years. Now we do not think this statute should be given an interpretation to apply that way. We do not believe this statute was intended to make such a transaction unlawful.

We, therefore, reverse the judgment of the court of common pleas and of the justice of the peace, and discharge the defendant below.


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    LEGALITY of a sewer tax levy.
    Circuit Court of Cuyahoga County.
    C. August Krauss v. The City of Cleveland and James P. Madigan, Auditor of Said City.
    Decided, March 28, 1905.

      Taxes — Sewer District Tax Legal.

    Taxes may be levied at a uniform rate upon territory not constituting a political district or subdivision of a political district: hence taxes for sewer purposes levied uniformly upon a sewer district are law-' ful.
    Marvin, J.; AYinci-i, J., and IIenry, J., concur.
   The plaintiff is a resident and tax-payer of sewer district No. 1 of the city of Cleveland. He requested thé city solicitor to bring this suit and he declined to do so. Suit was brought on behalf of the plaintiff and other tax-payers to restrain the payment of money for the construction of a sewer in Case avenue. This sewer had been contracted for and is now in process of construction, the city having passed an ordinance for the construction of said sewer and provided that 66 per cent, of the cost thereof should be paid out of the sewer fund of sewer district No. 1, 33 per cent, out of the sewer fund of No. 2 and 1 per cent, out of the sewer fund of district No. 7.

It is claimed, first, that this sewer is not needed. This is a main sewer, and it is for the council to determine the necessity for its construction. Unless the council abused its discretion in so determining its necessity, this court could not interfere. The evidence falls short of showing such abuse of discretion.

It is further urged that the council is without lawful authority to levy a tax upon such divisions of a city; that it may levy assessments according to benefits for public improvements, but that the manner of securing the money for this improvement is not such as comes within this authority, and that therefore it must be that it is to be read as a tax. We hold that this money is to be paid out of monej'- arising from taxation, but that taxes may be levied at a uniform rate upon territory not constituting a political district or subdivision of a political district.

In 37 O. S., 35, the first clause of the syllabus is directly in point; also the language of the opinion found on pages 39 and 40 of the report, which we will not stop to read.

In Root v. Board of Education, 52 O. S., 589, the syllabus, and from the opinion on pages 596 and 597, it appears that as to each of the sewer districts to be charged with any portion of the expense of this sewer, the rate of taxation is uniform upon all of the property real and personal within such district. It is not uniform in all districts, but in each particular district it is uniform as to that district. This tax is for a sewer fund and is authorized by law.

In paying for this sewer, the council followed the method pointed out in Section 2406-6, Revised Statutes, an act which had not been held to be unconstitutional at the time the council acted, October 28, 1901.

Without discussing further the questions, we think that those to which attention has been called determine the case, and tim petition of the plaintiff is dismissed.


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    CONVERSION OF CHECKS USED IN PAYMENT OF INSURANCE. PREMIUMS.
    Circuit Court of Cuyahoga County.
    The Park National Bank of Cleveland, Ohio, v. The Travelers Insurance Company of Hartford, Connecticut.
    Decided, January 22, 1905.

      Agency — Banks and Banking — Bank Liadle to Principal for Amount of Checks Drawn on Other Banks Cashed for Agent.

    Authority of an insurance broker to collect premiums from policy holders, raises no presumption of authority on his part to endorse and collect checks, and a bank which cashes them upon the endorsement of the agent and then collects them from the banks upon which they were drawn is liable to the principal as for conversion of the checks.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This proceeding in error is brought to reverse a judgment for $2,409.67 recovered at the April term, 1905, of the Cuyahoga . common pleas court by the Travelers Insurance Company against the Park National Bank. The action below was begun to recover from said bank the amounts of certain checks drawn on other banks in favor of said insurance company by holders of its policies in payment of premiums. The checks were given by the drawers about July 1, 1902, to one W. B. Uhl, an insurance broker, by whom the business was solicited, and the policies delivered. But although Uhl had authority thus to collect the premiums he, without authority, endorsed the cheeks in the insurance company’s name by his own as agent, and deposited them to his own account in said bank, by which they were collected in the ordinary course from the banks on which they were drawn. Uhl’s deposit was subsequently withdrawn and consumed by him, and he became a fugitive. The insurance company’s attorneys learned of Uhl’s misconduct October 29, 1902, having consumed the interval in the investigation and attempted settlement of the matter with Uhl’s friends.

At the trial, and upon the court’s ruling that the defendant had the burden, the bank put in its evidence first. After both parties had rested, each asked the court to direct a verdict in its favor. When the defendant’s motion was disallowed, it made no request to go to the jury upon the facts, and the court was thus clothed with the functions of a jury, so that the verdict for the plaintiff, which the court thereupon directed, can not here be set aside unless clearly against the weight of evidence. First National Bank v. Hayes & Sons, 64 Ohio St., 100.

It is claimed, however, that the verdict thus directed is founded on insufficient evidence and on a petition which states no cause of action. The bank insists that the insurance company has its remedy against the policy holders, because, on this state of facts, the premiums which they owed have never been paid, payment of their check by the drawees upon forged endorsements being, in law, no payment at all. The fact that the policy holders may have recourse upon their own banks, and the latter, in turn, upon the defendant below, affords no warrant, it is urged, for the short cut sought to be taken here; for the intervening parties may well have defenses inter so that are not available in this action, and, in any event, there is no privity between the parties here.

We think, however, that the rule of Shaffer v. McKee, 19 Ohio State, 527, presents a complete answer to this contention. The syllabus is:

“A debtor of the plaintiff enclosed and mailed to her a draft, on a bank in New York, payable to her order. The draft was stolen from the mail and the thief, having placed a forged endorsement of the plaintiff’s name thereon, sold the same to the defendant, who drew from the bank the money and appropriated it to his own use. Held: On this state of facts the plaintiff was entitled to recover the amount of the draft from the defendant.”

It is said, however, that the reasoning in that case proceeds upon a state of the law which does not now prevail, for there the plaintiff was permitted to recover against the defendant because she might have recovered against the drawee, the action being in the nature of trover and the damages being the amount which could have been recovered from the bank. But we think the checks in this ease, whose value the defendant below received, were clearly things of value, the property of the insurance company; that, misled by Uhl’s forgery and false representation of agency, the bank converted this property; that on these facts it is liable to this action for damages, and that it is no answer to say that some one else may also have incurred a liability in the transaction. Nor do we know of any principle on which a person whose property has been thus converted owes a duty to the person converting it of notifying the latter when the conversion is discovered or of exercising any greater promptness or diligence in making demand than was employed in this case.

The defendant below, having interposed by general denial and other allegations, the defense that Uhl had authority from the plaintiff to endorse the checks in question, and that, even if he was without authority, he had actually paid the proceeds to plaintiff, was charged with the burden of making good those defenses, as the court below rightly ruled. Uhl’s admitted authority to collect premiums from the policy holders and his right to commissions thereon, create no presumption of authority on his part to endorse and collect cheeks made payable to the order of his principal. We find no ei’ror in this record and the judgment below is affirmed.


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    CONSTRUCTION OF LEASE OF AN UNCOMPLETED BUILDING.
    Circuit Court of Cuyahoga County.
    The Bankers’ Fraternal Union v. The Williamson Company.
    Decided, December 12, 1904.

      Landlord, and Tenant — Clause in Lease Regarding Delay in Giving Possession Construed.

    When a clause in a lease provides that the lessor shall not be liable in damages for any failure on its part to complete the building leased in time for occupancy under the terms of the lease, but'will endeavor to have it completed at that time and in case of failure so to do, the lessee shall be entitled to a proportionate rebate of rent, such clause postpones the date when the lease becomes effective, in case the building is not completed, and is not a mere limitation of damages on the part of lessor for non-delivery, and gives lessee no right to repudiate the contract of lease because the premises are not ready for occupancy.

      Hogan & Parmely, for plaintiff in error.

      Ford, Snyder & Henry, contra.
    Winch, J.; Hale, J., and Marvin, J., concur.
   The Williamson Company brought its action in the common pleas court against the Bankers’ Fraternal Union to recover for the rent of certain offices in the Williamson Building, Cleveland, Ohio, under the terms and covenants of a written lease entered into between the parties wherein the lessor demised certain premises for the term of three yars from the first day of April, 1900, and the lessee agreed to pay as rent for the demised premises for said term the sum of one thousand dollars per annum in monthly installments in advance.

The eighth clause of said lease contains the following provision :

“Lessor shall not be liable in damages for any failure on its part to complete the Williamson Building in time for occupancy under the terms thereof. Said lessor, however, agrees to use its best endeavors so as to complete said building, and in the event of any failure so to do the lessee shall be entitled to a proportionate rebate of the rent for the premises hereby leased.”

The defendant below tendered issue as to the authority of the person who signed the lease for it to bind the corporation and as a further defense alleged that said offices were not completed ready for occupancy April 1, 1900, and that the lessor failing to give it possession of the premises on said day the defendant on said day rescinded and canceled said lease, refused to be bound thereby and immediately so notified the lessor.

These issues being referred to a jury, there was a verdict ior the plaintiff below and the judgment thereon we are now asked to review.

As to the authority of one Myler, who signed said lease, to bind the defendant below, the question was fairly submitted to the jury, and we are not disposed to disturb its findings with regard thereto.

The alleged rescission of the contract by the lessor’s failure to give possession on April 1, 1900, is a legal proposition and is properly brought before this court for review by exceptions of defendant below to the court’s charge as given and its refusal to charge as requested by said defendant.

There was evidence offered at the trial that the building was not completed on said day and that possession of said offices could not be taken on that day; there was no evidence that the lessor had not used its best endeavors so to complete the building.

We are thus called upon to construe that part of the eighth clause of said lease heretofore quoted.

Counsel for plaintiff in error has argued that the evidence in this case shows a breach on the part of the lessor of the covenant to give possession; that the time for the delivery of possession to the tenant is treated as of the essence of the lease and if the landlord refuses to deliver possession at the time specified, the tenant may abandon the lease, or he may affirm the lease and sue the lessor for damages for the breach of the covenant; that the law thus stated, giving the lessee an option as to his remedies, would be applicable to this case were it not for said eighth clause of the lease; that the sole purpose and effect of said clause is to limit the lessor’s remedy in damages without taking from it its option to rescind the lease.

The supposed attitude and intention of the Williamson Company at the time it prepared this lease is colloqually stated by lessee’s counsel, as follows:

"I believe now that I will be able to deliver to you the possession of these rooms on April 1, 1900, consequently I will make your term begin on that date and have your rent payable from then. But, for fear that I may be unable to do so, I propose, as a matter of precaution, to limit my liability in damages to you. If I am unable to deliver possession to you on April 1, 1900, you may have all the remedies that the law gives you therefor, except that I am not to be liable to you in damages for such failure. I agree, however, to use my best endeavors to have the building completed and these rooms ready for occupancy at the commencement of your term. If I fail, however, and you prefer to hold me to the lease and accept possession of the rooms when I am able to deliver them to you, then you are only to be entitled to a rebate of the rent, provided for in the lease from the date of the commencement of the term to the time you receive possession of the rooms. If I fail to use my best endeavors to complete the building and have it ready for occupancy by April 1, 1900, then of course I will be responsible to you for such damages as the law gives you, in event that you elect to hold me to this lease; otherwise not, except as herein provided.”

We are inclined to think that the parties were not contracting with regard to lessee’s remedies in case of the lessor’s breach of the covenants of the lease, but were contracting with regard to the term of the lease, when it was to begin, if the building was not completed on time, and that it would be more, proper to put the lessor’s attitude and intention as follows:

‘ ‘ If I am unable to deliver possession to you on April 1, 1900, it is hereby agreed that the term hereby granted shall not begin until the building is completed and I can give you possession, and you shall not be liable for rent until the building is so completed.”

This is the construction given to the eighth clause of the lease by the trial judge, and we find no error in it.

Judgment affirmed.


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    DELAY IN MOVING FOR. THE RETAXING OF COSTS.
    Circuit Court of Cuyahoga County.
    T. J. Kerns v. Augusta F. Linder et al.
    Decided, March 28, 1905.

      Costs — Bight to Rave Retaxed Lost by Laches.

    A motion to have costs retaxed should be made within a reasonable time after the judgment awarding them, and one who has waited four years before making such a motion has been guilty of laches.
    Winch, J.; Marvin, J., and Henry, J., concur.
   This is a motion to retax costs awarded by the judgment of this court on November 7, 1901. The docket shows that after judgment by this court the ease went to the Supreme Court and was there dismissed.

While there is some merit in the contention that some part of the costs complained of were excessive and improperly charged against the defendant, Augusta F. Linder, we think this motion is altogether too late to be entertained by this court. Since said costs were taxed almost all the officials connected with the litigation, such as the clerk and sheriff, have gone out of office, and only one judge who sat in the case is now on the bench.

A motion to retax costs should be made within a reasonable time after the judgment awarding them, so that the court can call upon its officers to explain the items of the cost bill. The right to have costs retaxed may be lost by laches of the party against whom they are taxed. 11 Cyc., 165; 5 Enc. of Pl. & Pr., 248, and cases cited in notes.

This motion is made more than four years after the costs were taxed and entered on the dockets of the court, and we hold that defendant has waived his right to have the same retaxed and the motion is overruled.


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    TRUSTEE SHOULD REPRESENT INSANE DEFENDANT IN DIVORCE PROCEEDINGS.
    Circuit Court of Cuyahoga County.
    Mary Keerlick v. Thomas Keerlick.
    Decided, 1906.

      Divorce — Trustee Should he Appointed for Insane Party.

    Where an insane party is sued for divorce the court should appoint a trustee to defend the suit, as in other cases.
    Winch, J.; Marvin, J., and Henry, J., concur.
   Plaintiff brought her action against the defendant praying for divorce, custody of children, alimony, and that she be decreed to be the sole owner of certain real estate which she claims to have paid for herself, although the record title thereto is in the plaintiff and defendant jointly. Extreme cruelty and gross neglect of duty are alleged as'the grounds for divorce.

The petition further alleges:

“Defendant is now an inmate of the Cleveland Hospital for Insane, duly committed by the Probate Court of Cuyahoga County, and is hopelessly insane beyond hope of recovery. All of the grounds for divorce above set forth arose prior to the insanity of the defendant and while he was in good health and of sound mind. ’ ’

Service was had by delivering copies of the summons and of the petition to the defendant, and like copies for him to Dr. A. B. Howard, superintendent of the state hospital, in which the defendant is detained.

Thereupon the court of common pleas appointed a trustee for the defendant in the suit, finding that his legal guardian had an interest in the controversy adverse to defendant; and the trustee so appointed answered, admitting the marriage, birth of children, and insanity of the defendant, as alleged in the petition, but denying all other allegations therein.

At a subsequent term the trial court made the following order in the cause:

“This cause having beeen duly advanced, came on this day for hearing, whereupon the court without final hearing dismissed the petition of the plaintiff at her costs, for which judgment is rendered against her.”

Notice of appeal was given, bond fixed and given, and the case brought into this court under favor of Section 5706, Revised Statutes, which reads:

“No appeal shall be allowed from any judgment or order of the court of common pleas under this chapter, except from an order dismissing the petition wiihovi final hearing, or from a final order or judgment granting or refusing alimony, or in eases under Section 5705 (injunction against intemperate husband from squandering property) ; when judgment is rendered for both divorce and alimony, the appeal shall apply only to so much of the judgment as relates to the alimony; and when the appeal is taken by the wife, she shall not be required to give bond.”

In this court a motion is made to dismiss the appeal, but said motion is overruled, as it is clear that the ease is appealable as to the property rights of the parties, and we do not decide whether or not, as to the divorce, an order was made dismissing the petition without final hearing, within the intendment of the statute, sp as to require this court to hear and determine' whether a divorce should be granted to the plaintiff.

Further objection is made to this court hearing the case, based upon the defendant’s insanity.

So far as that objection amounts to a demurrer to the petition, it is overruled, for we know no good reason why the property rights of the parties should not be adjudicated, even though the defendant is insane. Whether the present' insanity is a bar to divorce, we do not now decide.

But it is said that this case should not be tried, because there is no provision in the chapter on divorce authorizing the appointment of a trustee who may make a defense for the defendant, which his insanity precludes him from making for himself.

In the ease of Johnson v. Pomeroy, 31 O. S., 247, at page 248, it is said:

“An insane person may be sued and jurisdiction over his person acquired by the like process as if he were sane. But when it is made to appear to the court that a party to the suit is insane, it is made the duty of the court by statute (S. & C., 385, Section 7) to appoint a trustee to prosecute or defend the suit for and on behalf of such insane party. ’ ’

The statute referred to is now known as Section 5000, Revised Statutes, and is found in the revision and consolidation of the laws relating to^ civil procedure enacted May 14, 1878 (75 O. L., '597, 606), but)was originally enacted March 14, 1853 (51 O. L., 473, .Section 47, and then read:

“Whenever any suit in court now pending, or that may hereafter be instituted, it shall manifestly appear to the court that any person who is party to such suit is an idiot, lunatic, or insane person,” the court may appoint a trastee.

This act was passed three days after the Legislature had adopted the original code of civil procedure (51 O. L., 57) and the act concerning divorce and alimony (51 O. L., 377),:both of which were also carried into the revision and consolidation of the laws relating to civil procedure, above referred to.

The code provided for “one form of action, which shall be called a: civil action, ’ ’ and the provisions regarding divorce constituted a “special proceeding,” so designated in the revision-(75 O. L., 726), and so held by the Supreme Court (66 O. S., 566, 572).

Section 604 of the code of 1853 (51 O. L., 161) provided:

“Until the^Legislature otherwise provide, this code shall not . affect * * * proceedings under statutes relating to dower, divorce or alimony; * * * but such proceedings may be prosecuted under the code, whenever it is applicable.”

This section dropped out in the revision, and in its place appears Section 4956, Revised Statutes, which reads':

“Where in part three of this revision special provision is made as to service, pleadings, competency of witnesses, or in any other respect, inconsistent with the general provisions in this title, the special provisions shall govern, unless it appears that the provisions are cumulative.”

Considering this history of the statutes, we have concluded that as there is no special provision in the chapter on divorce with regard to the procedure in the case of an insane party, the general statutes on the subject apply, and that a trustee was properly appointed for the insane defendant.

The motion to dismiss the petition is, for the reason stated, overruled and the case is assigned for trial.


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    UNION OF LEGAL AND EQUITABLE CAUSES OF ACTION DOES NOT PREVENT SUBMISSION TO JURY.
    Circuit Court of Cuyahoga County.
    The Curtiss-Ambler Realty Company v. Mary Tweedie et al.
    Decided, 1906.

      Appeals — Action on Note and Mortgage, When Not Appealable.

    1. When an action is brought to foreclose a mortgage and personal judgment is asked upon the mortgage note, the union of legal and equitable causes of action does not prevent the submission to a jury of the issues raised as to the note, and the case-on the note is not appealable.
    2. An answer setting up an equitable defense to an action on a note does not make the case appealable where the answer, if sustained, would not extinguish plaintiff’s demand, but only result in allowing certain credits.
    Winci-i, J.; Marvin, J., and ITenry, J., concur.
   A motion is made in this case to dismiss the appeal on the ground that upon the issues joined in the common pleas court the parties were entitled to demand a jury.

The petition sets up a promissory note and a mortgage given to secure it; recites that certain of the mortgaged premises were released from the mortgage and other property deeded to certain persons to hold in trust as security for the payment of said note and in lieu‘of the premises released, and sets forth certain expenses incurred and taxes paid in and about the transfer of securities.

The prayer of the petition is for a monej'- judgment and that the several securities be subjected to the payment thereof.

The amended answer of the makers of the note admits the execution of the note and mortgage, but alleges that by fraud and misrepresentation the note was obtained from them for a larger sum than was owing by them to plaintiff and .that a farm was deeded to a trustee, as alleged in the petition, was not so deeded as security for the note, but as payment thereof, and that certain city property was deeded to a trustee for the interest of said defendants and not as security for said note.

There is no prayer that the original note and mortgage be set aside. On the contrary, the answer recognizes the note and its prayer is that credits be made upon the note as claimed by defendants and that the farm be decreed to belong to plaintiff and the said city property to said defendants. The credits claimed would not extinguish the note.

The case was tried in the common pleas court without the intervention of a jury; the issues were found in favor of plaintiff, and personal judgment rendered on the note and the securities ordered subjected to its payment.

It has been repeatedly held in this state that where an action is brought to foreclose a mortgage and personal judgment is asked upon the mortgage note, the union of legal and equitable causes of action does not prevent a submission to a jury of the issues raised as to the note, and the case is not appealable. Ladd v. James, 10 O. S., 437, and cases in Laning’s Notes.

The fact that the answer sets up an equitable defense does not make this case appealable, because it goes only to the credits upon the note, and, if sustained, would not extinguish the plaintiff’s demand. Raymond v. Railway Co., 57 O. S., 271, 288.

Motion to dismiss appeal granted.


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    AS TO THE FIDUCIARY RELATIONSHIP BETWEEN AN ADMINISTRATOR AND THE WIDOW OF HIS INTESTATE.
    Circuit Court of Cuyahoga County.
    Mary Lally v. Mary Lally et al.
    Decided, 1906.

      Gifts — When Duty of Court to Scrutinize.

    Although as to the title to real estate, no legal fiduciary relationship exists between the administrator of an estate and the widow of his intestate, a de facto relationship of that character may exist; and where the administrator is the brother of the intestate and accustomed to doing business and the widow is illiterate and not accustomed to doing business, a deed of gift from the latter to the former could only be made after full disclosure to the donor of her rights in the property, and where such conveyance is sought to be set aside it is the duty of the court to scrutinize jealously the conduct of the donee and the comprehension of the donor in respect to the entire transaction.

      Kerman Preusser, for plaintiff.

      McCaslin & Cannon and Jas. F. Walsh, contra.
    Henry, J.; Laubie, J. (sitting in place of Marvin, J.), and Winch, J., concur.
   This is an appeal by plaintiff from the judgment of the court of common pleas in an action to set aside a conveyance which she alleges was fraudulently procured from her by her brother-in-law, Michael Lally, since deceased. The defendants are Michael Lally’s devisees, etc.

John Lally died intestate November 20, 1903, without issue, leaving a house and lot on Phelps street, in Cleveland, which he had purchased, and personal property consisting chiefly of bank deposits. He and his brother Michael had been intimately associated as co-administrators of an estate, and John’s widow, who is an illiterate woman about 65 years old, had confidence in Michael and consented to his appointment, December 2, 1903, as an administrator of her husband’s estate. At the same time she signed a deed to Michael of the Phelps street property, and he executed a life lease thereof to her. She also consented to a distribution of the bank deposits, but inasmuch as the personal property is the subject of a separate action still pending, we refrain from discussing this feature of the transaction. All this business was transacted at the office of James F. Walsh, Esq., of counsel in this cause. The evidence shows no actual fraud or misrepresentation in the premises, but on the contrary, an effort on the part of the widow to carry out what she believed to her late husband’s wishes. He had' been her second husband and she had had issue by her former marriage. It is said that the Phelps street property had been paid for by John, Michael and a sister, as a home for their mother in her lifetime, and title taken in John’s name with a life lease to the mother; and that John’s widow, knowing this, wanted a similar provision for herself, but so arranged that the property would belong to Michael on her death. The source of the original purchase money is not proved in this case, but we think it is proved that John’s widow signed the deed which she now seeks to set aside, and that she knew or should have known what she was signing. She alleges that she first discovered the fact that she had made such a conveyance about one month thereafter, at Michael Lally’s funeral, and the files here show that she brought this action within a fortnight afterwards.

The main question in this ease is whether and under what circumstances one occupying such a relation to another, as that of Michael Lally to his brother’s widow, can take a gift of land from that other. Here the fact of confidence reposed is abundantly established, in addition to such confidence, if any, as is legally implied from the kinship by affinity, the relationship between an intestate’s widow and the administrator of the estate, and the inequality of footing as between a man accustomed to the transaction of business and an illiterate widow whose husband has been dead but twelve days.

It is pointed out to us, and we agree, that no official fiduciary relationship subsists between an administrator and the widow of his intestate, in respect to the title to the latter’s real estate. But we think a cle facto relationshhip of that character may exist between parties so situated which will give rise to legal duties; and under the facts of this case we hold that the duty of making a full and complete disclosure to plaintiff of her rights as heir of her deceased husband rested upon Michael Lally before he could take a valid gift from her of the real estate which she had thus inherited. And it is the duty of a court of equity, where such a gift is sought to be set aside, to scrutinize jealously the conduct of the donee and the comprehension of the donor in respect to the entire transaction. The rule as to purchases applies with even more force to such gifts as this. Walker v. Shepard, 210 Ill., 100; Pairo v. Vickery, 37 Nev., 467; Handlin v. Davis, 4 Ky. Law Rep., 675.

No disclosure of her rights appears to have been made to John Lally’s widow. Whether she supposed she was giving away her own property or merely effectuating her husband’s intended disposition of his property, is at best uncertain. Under these circumstances the gift can not be upheld, but must be set aside and the deed of conveyance canceled. The plaintiff may take a decree in accordance with this opinion.


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    ALLEGED COLLUSION IN PLACING A CORPORATION IN THE HANDS OF A RECEIVER.
    Circuit Court of Cuyahoga County.
    David B. Carpenter v. Andrew Williamson et al.
    Decided, November 24, 1905.

      Corporations — Stockholder Must Redress Wrongs Through the Corporation.

    A stockholder in a corporation can not maintain an action to redress wrongs done the corporation, whereby he has suffered in his stock-holding interest, unless he alleges an effort to secure redress through the corporation, its officers, assignee or receiver, and neglect or refusal- on their part to act.

      David B. Carpenter, for plaintiff in error.

      E. Hitchens, contra.
    Winch, J.; Marvin, J., and Henry, J., concur.
   The petition in this case attempts to set forth a cause of action growing out of the defendant’s collusion and fraudulent management or mismanagement, of a corporation in which plaintiff was a stockholder, by reason whereof said corporation tvas placed in the hands of a receiver and its entire assets transferred to defendants under the guise of a new corporation which is also made defendant to the action.

The plaintiff says that the suit is one of general interest to all the other stockholders and creditors of said original company, who are very numerous, and that he brings the action not only for himself, but for all other stockholders and creditors thereof who may come in to prosecute it.

One of the defendants demurred to the petition in the common pleas court, the demurrer was sustained, judgment entered on the demurrer, and the matter brought here for review of said judgment.

The petition is very voluminous, but we have searched it in vain for any allegations that plaintiff ever attempted to secure redress for the wrongs of which he complains through the original corporation or its receiver, though it is manifest that he was wronged, if at all, because of his ownership of stock in a corporation whose rights were infringed.

Neither is said corporation or its receiver a party to the action.

We hold that a stockholder can not maintain an action to redress wrongs done the corporation, whereby he has suffered in his stock-holding interest, unless he allege an effort to secure redress through the corporation, its officers, assignee or receiver, and neglect or refusal on their part to act.

No authorities on this proposition need be cited. The whole of the eighty-ninth chapter in the fourth volume of Thompson’s Commentaries on the Law of Corporations is on this subject, and this court has heretofore recognized the rule. Larwill v. Burke, 19 C. C., 449, 475.

The petition being deficient in the respect pointed out, it failed to state a' cause of action, and the demurrer to it was properly sustained.

Judgment affirmed.


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    RIGHTS UNDER. A BR.OKEIUS UNEXECUTED CONTRACT TO SELL STOCK.
    Circuit Court of Cuyahoga County.
    Norton T. Horr, as Assignee of R. H. York & Company, v. R. M. Baker.
    Decided, November 24, 1905,

      Stock Brokers — Tender Necessary Before Action for Breach of Contract of Sale.

    Where a stock broker contracts with another broker to sell him certain stock at a certain price, delivery to he made at any time within ninety days, and then makes an assignment for the benefit of creditors without having any of the stock in question with which to-make tender, in the absence of any rules of the stock exchange governing the transaction the assignee has no right as against the other broker for the difference between the contract price of the stock and the price at which he purchased it in the open market within the ninety days.
    Winch, J.; Marvin, J., and Henry, J., concur.
   R. H. York & Company and E. M. Baker were both members of the Cleveland Stock Exchange, and on April 13, 1905, the former agreed to sell the latter two hundred shares of American Ship Building stock at fifty-five dollars per share, seller to have the privilege of delivering said stock at any time within ninety days thereafter, the buyer to pay for said stock upon delivery.

Two weeks later R. H. York & Co. failed and made a voluntary assignment for the benefit of creditors, to the plaintiff. The next day Baker purchased in the open market two hundred shares of said stock and paid thereafter at the rate of fifty-three dollars per share.

Thereupon, the assignee claiming from Baker the sum of four hundred dollars, being the difference at $2 per share on said two hundred shares of stock, and Baker denying the claim, they submitted their contention to the common pleas court as an agreed ease in which the above facts were set forth and also the further statements that at the time of the transaction first mentioned the parties intended actual delivery of the stock should be made, but that at the time of the assignment R. IT. York & Co. did not have on hand for delivery any of the stock referred to.

It was further agreed that the rights of the. parties are covered by the rules of the Cleveland Stock Exchange, but that said rules do not expressly regulate the rights of the parties under said circumstances, although said rules provide that when a member of the exchange fails, all his transactions upon the exchange shall be at once “closed,” and for all debts then existing to members of the exchange such members shall have a lien upon the membership seat of the failing member.

As there is no averment in the agreed statement that York & Co. tendered the stock to Baker, but, on the contrary, it appears therefrom that York & Co. were and are utterly unable to make such tender, under familiar rules of law, plaintiff can not recover, unless the rules of the stock exchange excuses tender under such circumstances as are presented here, and such rules are enforeible in the courts.

It is said that the word ‘ ‘ closed, ’ ’ as found in said rules, implies a settlement upon differences. No definition of the word is given in the agreed statement and the court has no judicial knowledge of its meaning. Doubtless the statement of facts contained no definition of the meaning of the word “closed” as used upon the exchange and in its rules, because such definition would not be consistent with the allegation that the parties intended actual delivery of the stock. If, indeed, to close a transaction upon the exchange means to settle upon differences, then clearly we should have a gambling contract, and the court could not enforce it. Nor is plaintiff’s position strengthened by the lien provided by the rules, which the exchange is in a position to enforce, for if there is no debt, the security for it is unavailable. The common pleas court having also come to this conclusion, its judgment is affirmed.


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    MUNICIPALITY NOT LIABLE FOR NEGLIGENCE WITH RESPECT TO A WORKHOUSE PRISONER.
    Circuit Court of Cuyahoga County.
    David H. White v. The City of Cleveland.
    Decided, May 31, 1901.

      Municipal Corporations — No Liability for Injury to One at Work Under a Prison Sentence.

      W. C. Rogers and L. H. Ware, for plaintiff in error.

      Beacom, Babcoch, Excell, Gage <& Carey, contra.
    Hale, J.; Caldwell, J., and Marvin, J., concur.
   In this ease we hold that a prisoner convicted of a violation of a city ordinance, and sentenced to the workhouse at hard labor, can not maintain an action against the city for negligence of its' officers and employees in the execution of the sentence, either in negligently providing defective machinery upon which the prisoner is compelled to work, or negligently directing the manner in which the work is to be done.

This results in an affirmance of the judgment of the court of common pleas.


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    NO APPEAL FROM MOTION TO SET ASIDE FINAL ORDER.
    Circuit Court of Cuyahoga County.
    The South Cleveland Banking Company v. H. L. Nachtrieb et al.
    Decided, March 27, 1905.

      Appeals■ — No Appeal from Motion to Set Aside Final Order.

    Appeals may only be taken from final orders or decrees, and a motion to set aside such an order or decree is not appealable.
    Marvin, J.; Winch, J., and TIenry, J., concur.
   This case is heard on a motion to dismiss the appeal which was taken by one Crowell, who was not a party to the proceeding but was interested in the result. Crowell was appointed by the common pleas court in this action as receiver of the property of H. N. Nachtrieb. When his report was filed as such, the court of common pleas found a certain amount of money to be in his hands as such receiver, and ordered that the entire amount be distributed to the creditors, and that the receiver should have no compensation for his services. This order was made on the 26th day of October, 1904.

On the 15th day of December, 1904, Crowell made a. motion in the same court to have the order and judgment set aside. This motion was overruled, and it is from this order of the court overruling said motion that Crowell gave notice and bond, and filed transcript for appeal to this court. The motion now disposed of is made by the South Cleveland Banking Co., on the ground that the order is not appealable. The final order in the case was that of October 27, 1904, and without consideration of the question whether Crowell might or might not appeal the case, it is perfectly clear that what he seeks to appeal is not the final order of the court of common pleas.

The statutes provide within what time thereafter proceedings may be taken. Crowell allowed the case to rest from that day until the 15th day of December and then filed a motion to set aside that final order of October. The court refused to set it aside. If an appeal can be taken from such an order, all one has to do who desires to appeal his case is to leave the final order, pay no attention to it until a convenient season, and then file a motion to have it set aside. There is nothing here for anybody to appeal from. The motion to dismiss the appeal is sustained.


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    AS TO THE ENGRAFTING OF A TRUST ON LANDS.
    Circuit Court of Cuyahoga 'County.
    S. T. LeBaron v. Arthur A. Skeels et al.
    Decided, December 24, 1904.

      Trusts and Trustees — Evidence to Engraft Trust on a Deed Absolute Must be Clear and Convincing.

    The evidence necessary to engraft a trust on lands conveyed by deed absolute must be clear and convincing and where the plaintiff has allowed eight years to elapse before seeking to establish the trust, the evidence of one prejudiced witness as to declarations of the original grantee, since deceased, will not be sufficient to meet that requirement.
    Winch, J.; Hale, J., and Marvin, J., concur.
   This ease was heard on appeal. The petition was originally filed in the common pleas court January 23, 1902, and in it the plaintiff asks the court to ingraft a trust upon a deed absolute on its face whereby on May 26, 1891, eleven years before, certain premises in Cuyahoga county were deeded to one Frank B. Skeels. The plaintiff says that he paid one-half of the purchase price for said premises and that at the time said deed was made it was the express understanding that said Skeels should take title in his own name in trust for himself and plaintiff, each to have a one-half interest in said premises.

The records with regard to said title, beginning with said deed to Skeels in 1891, show that on June 15, 1894, Skeels deeded said premises, by deed absolute on its face, to one C. A. Bejcek; January 22, 1895, by similar deed, the premises were conveyed by Bejeek to Rose Skeels, wife of said Frank B. Skeels; she died November 8, 1897, and by her will this property was left to her husband; January 31, 1900, he deeded the premises, by quit-claim deed, to his brother Arthur, deféndant in this action; the proof shows and it is admitted by Arthur, that this deed was in reality a mortgage to secure money due and thereafter to be advanced by Arthur to his brother; about six months later Frank became insane and died about a year later, June 27, 1901, after having been confined in a private hospital for the insane. The following September his administrator brought proceedings to sell this land as part of his decedent’s estate, made Arthur party defendant to said suit and the latter set up the conveyance to him as a mortgage, claiming $700 due him thereunder. This was found to be the ease, sale was ordered and made and Arthur became purchaser of the premises for $1,200, $700 of which was paid by crediting on the purchase price the debt due him from the estate, the balance, $500, remaining in his hands as guardian of Frank’s two minor children, one of whom has since come of age and has been paid her share; the $250 due the other minor is still held by defendant, Arthur A. Skeels, as his guardian.

The only testimony upon which it is sought to ingraft a trust upon this property is that of C. A. Bejeek, who says that he formed a partnership with F. B„ Skeels in 1891 and was then shown deeds in the safe which said Skeels remarked represented the title to property which he held in trust for himself and plaintiff; when the deed was made to him three years later witness testifies that said Skeels stated that he was financially involved and deeded the property to the witness to hold as in trust for himself and plaintiff, one-half for each, and that the next year he deeded said property to the wife at said Skeel’s request and then told her that he deeded it to her in trust to hold for the equal benefit of her husband and plaintiff.

The lapse of time since these transactions, the witness’ personal difficulties with defendant about other matters, the utter failure of proof that plaintiff made any effort to establish this secret trust from the time that the wife took title in 1895 until eight years later when he brought suit, meanwhile the wife dying and the husband first becoming insane and a year later dying himself — 'all these circumstances tend to weaken the effect of said witness ’ statements, so that we are unable to say that uncorroborated as he is this witness brings the proof within the rule laid in the ease of Boughman v. Boughman, 69 O. S., 273, which “requires that parol evidence to engraft an express trust in lands upon a deed absolute shall clearly and convincingly show that contemporaneously with the execution of the deed the terms of the trust were declared and beneficiaries designated.”

Again it was sought to show that defendant had notice of plaintiff’s claims, both before he took deed in 1900 and again before the land sale proceedings in the probate court in 1901, but, without stating the evidence on this subject, it is sufficient to say that it was not satisfactory.

Perhaps.the principal reason we decide this case against the plaintiff is because his conduct was so absolutely indifferent as to his alleged interest in the property for about eleven years, during which time he allowed the person he claims was trustee for him to convey the property as his own and to become incapacitated and die without making any claim upon him or effort to establish his interest.

Secret trusts are not favored and we fear this secret has died with the trustee, if ever there was one. It would have been so simple for plaintiff to have taken from Frank B. Skeels a written statement of his alleged trusteeship that he must not now complain if the rules regarding parol proof are enforced against him.

The petition is dismissed.


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    SERVICE UPON A GARNISHEE
    Circuit Court of Cuyahoga County.
    Anna Clark Murphy v. The Cleveland & Sandusky Brewing Co. et al.

    Decided, December 24, 1904.

      Service — When Non-Resident Defendant Not Subject to Personal Service.

    A civil action against a garnishee under favor of Section 555, Revised Statutes, brought for the purpose of reaching credits in the hands of the garnishee, is not an action for the recovery of specific property which would authorize personal service upon a nonresident defendant under Sections 5049 and 5045, Revised Statutes.
    Winch, J.; Hale, J., and Marvin, J., concur.

      Affirmed without opinion, Murphy v. Cleveland & Sandusky Brewing Co., 74 Ohio State, 506.

   In an action by plaintiff against one C. R. Barrett and others, the defendant brewing company was served with garnishee process and answered that it had no property in its possession or under its control belonging to said C. R. Barrett or others, defendants with him in said suit.

Thereupon plaintiff brought this action in the common pleas court against the brewing company, setting forth said attachment proceedings, stating that the brewing company’s answer therein was not satisfactory and further alleging that when served in attachment on August 13, 1903, the brewing company had about $300 in its possession and under its control belonging to said debtors. The prayer of the petition was that the brewing company be ordered to disclose truly what if any property or credits of any kind it had in its possession or under its control belonging to said debtors or either of them at the date of the attachment and for judgment for the amount of property and credits of every kind of said debtors, or for what may appear to be owing by the brewing company to them and for such other relief as the court may deem proper.

To this petition the brewing company answered, setting forth that on April 10, 1903, 189 shares of its capital stock stood upon its books in the name of C. R. Barrett; that on said day said Barrett was adjudicated a bankrupt by consideration of the United States District Court for the Northern District of Illinois; that by said court on May 14, 1903, the Equitable Trust Company of Chicago was duly appointed trustee of the estate of said C. R. Barrett and qualified as such; that upon the demand of said trustee said 189 shares of stock were transferred to it as trustee. That on August 1st, 1903, a dividend on said stock amounting to $283.50 was declared upon said stock, which amount is still in its possession and control, and that said trustee had demanded said dividend of it. The defendant further answered that at the time of the service upon it of said garnishee process it did not have, nor has it had at any time since, any property of any character in its custody or under its control belonging to any of said debtors.

Thereupon plaintiff filed an amended petition, making the Equitable Trust Company party defendant, setting forth the claim against Barrett and others, the attachment proceedings against the brewing company; its answer in said proceedings that it had no property belonging to the debtors; its answer in this case stating its possession of $283.50, dividend as aforesaid, and the statement -that the Equitable Trust Company had demanded said dividend.

The prayer of the amended petition is that said trust company be required to assert its rights to said dividend and to maintain or relinquish the same against the plaintiff or the defendant brewing company, or be barred upon all claims in respect thereto, and for such other relief as the court might deem proper.

Upon this amended petition personal service was made upon the Equitable Trust Company of Chicago, by delivering to its president there copies of the writ and amended petition.

Thereupon the trust company, appearing only for the purpose of the motion and denying expressly the jurisdiction of the court over its person, moved the court to quash the service upon it. This motion was granted, plaintiff excepted and by petition .in error brings before this court for review the ruling on said motion to quash, as the only matter for our consideration.

Plaintiff in error contends that the service complained of is authorized by Sections 5049 and 5045 of the statutes. Section 5049 authorizes personal service out of the state in cases where service by publication may be made. Section 5045 sets forth nine cases in which services may be had by publication, and counsel claims that this case comes under the fifth paragraph of said section, which reads as follows:

“In actions which relate to, or the subject of which is real or personal property in this state, when a defendant has or claims a lien thereon or an actual or contingent interest therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a non-resident of the state, or a foreign corporation, or his place of residence can not be ascertained.”

It will be noticed that such service may be had only “in all actions which relate to or the subject of which is real or personal property in this state.” That means specific real or personal property. No specific real property being in issue, the question arises: does this action relate to, or is the subject of it specific personal property?

We think not. The action was brought under favor of Section 5551, Revised Statutes, which provides:

“See. 5551. If the garnishee fail to appear and answer, or if he appear and answer, and his disclosure be not satisfactory to the plaintiff * * * the plaintiff may proceed against him by civil action; and thereupon such proceedings may be had as in other actions, and judgment may be rendered in favor of the plaintiff for the amount of property and credits of every kind of the defendant in possession of the garnishee, and for what may appear to be owing by him to the defendant, and for the costs of the proceedings against the garnishee. ’ ’

It thus appears that the action is one for damages in which judgment may be rendered against the defendant; it does not involve the recovery of specific property, • but a judgment for the amount of such property and costs. No specific property is mentioned, but a credit on the books of the brewing company is sought to be reached.

The service had in this ease was therefore unauthorized, and the objection to it was properly raised by the motion to quash it. Williams, Adms., v. Walton’s Adms., 28 O. S., 451-469; Hinch v. d’Utassy, 1 O. D., 372. Said motion was properly sustained and the judgment is affirmed.