author: Sayre, J.

text:
    ACQUIESCENCE BY CORPORATION IN UNAUTHORIZED ACTS BY ONE OF ITS OFFICERS.
    Court of Appeals for Athens County.
    Harry H. Jackson v. The Nelsonville Foundry & Machine Company et al.
    Decided, June 7, 1916.

      Corporations—Knowledge of Corporate Officer Imputed to the Corporation—Acquiescence of Corporation in Warrants of Attorney to Confess Judgment—Incorporated in Notes Without Authority—Surrender by Directors of Power to Executive Officer—Corporation B.ound Thereby Where Permitted by Stockholders—Acts of General Manager After Board of Directors Has Become Defunct—Evidence-Allegations With Reference to Purpose .of Partnership.

    1. In a suit on a judgment oral evidence is admissible to show that the plaintiff in the record of the judgment is identical with the plaintiff in such suit.
    2. Where, from the oral evidence, it appears that in the record of the judgment the plaintiff therein was by mistake described as a corporation, when in fact the plaintiff was the partnership, seeking to recover on the judgment, such evidence should not be excluded.
    3. The knowledge acquired by an officer of a corporation, when'acting in his official capacity and in regard to a matter with which he is especially charged by the board of directors, is the knowledge of the corporation for any and all judicial purposes.
    4. The secretary-treasurer of a corporation, together with its president, having been authorized by the board of directors to make notes to banks to cover overdrafts, and having without authority executed notes with warrants of attorney containing power to confess judgment against the company and in favor of the obligee therein named, the knowledge of the secretary-treasurer thereby obtained that the notes contained such warrants is the knowledge of the corporation.
    5. When knowledge is obtained by a corporation of an unauthorized act of its officer it may ratify .the same by acquiescence, continued for a number of yéars, without any formal action of its board of v. directors; ' ;..■•.■■■' . - : ' . : '
    6.. When; a corporate officer signs, note.s authorized by the board of; directors containing unauthorized, warrants, of attorney for the entry of judgment by confession, and the notes remain unpaid, save the payment of the annual interest thereon, for more than thirteen years, such acquiescence on the part of the corporation is a ratification of the unauthorized acts of its officer.
    7. If the stockholders of a corporation permit the directors to surrender their powers and functions to an executive officer of the corporation as a continuous and permanent arrangement, the board of directors being entirely inactive and the officer discharging all its duties, the acts of such officer under such circumstances are binding upon the corporation.
    8. So, where the general manager of a corporation whose board of directors as such has become defunct with the knowledge and consent of the stockholders, and the general manager with their consent directs and controls all its business affairs, a note signed by the president of the corporation and by such general manager as secretary, containing warrants of attorney for the confession of judgment, is binding upon the corporation and it can not avoid a judgment obtained by confession in a suit on such note on the ground that the execution of the note by the general manager was unauthorized and void.
    9. In an action by a partnership on notes containing warrants of attorney for the entry of judgment by confession failure to aver in the petition that the partnership was formed for the.purpose of carrying on a trade or business in Ohio does not render the judgment void.
    March 23, 1914, plaintiff filed a petition in the Court of Common Pleas of Athens County, in which he stated that the defendant was a corporation and indebted to him in the sum of $7,950, evidenced by three promissory notes due and unpaid; that it was engaged in manufacturing, was indebted to various persons in a sum exceeding $40,000, was insolvent and wholly unable to pay its debts; that it was not able to carry on its business, and prayed, among other things, the appointment of a receiver.
    Subsequently W. S. Weitzell was appointed receiver, and on May 29, 1914, filed in the case an application to sell property, in which it was stated that it was necessary to sell the real estate of the corporation to pay its debts. It was recited in the application that Emery Lattaner, as Superintendent of Banks of the State of Ohio, claimed some interest in such real estate, and there was a prayer that he as such superintendent might be made a party to the action. Lattaner, as Superintendent of Banks, answered, as also did his successor.
    The cause was tried in the court of common pleas and after-wards appealed.
    January 19, 1916, Charles L. Baird, trustee, filed his answer and cross-petition in this court, which reads in part as follows:
    “Now comes Charles L. Baird, as trustee of John 0. Baird, Eugene J. Cable and Charles L. Baird, in the liquidation and settlement of the affairs of the Merchants & Miners Bank, a partnership, having been made a party defendant herein and given leave to file this his answer and cross-petition, and says:
    “That on or about the 12th day of March, 1914, Emery Lattaner, then Superintendent of Banks of the State of Ohio, took charge of the affairs and all of the assets of the Merchants & Miners Bank of Nelsonville, Ohio, a partnership, then comprised of Charles A. Cable, Eugene J. Cable, Charles L. Baird and John C. Baird, and thereafter proceeded with the liquidation of the said bank and the administration of its affairs until he was succeeded in said office by Harry T. Hall; that the said Harry T. Hall continued in charge of the liquidation of the said bank and the administration of its affairs until the 14th day of January, 1916; that on said last named date the said Harry T. Hall, as Superintendent of Banks of the State of Ohio, with the approval and authority of the Court of Common Pleas of Athens County, Ohio, in a certain proceeding therein pending,
    . entitled In the Matter of the Liquidation of the Merchants & Miners Bank, and numbered 10940 on the docket of the said court, assigned and transferred to this answering defendant all and singular the assets, choses in action and claims due said Merchants & Miners Bank, including therein the judgment and claim against the Nelsonville Foundry & Machine Company hereinafter set forth,
    “This answering defendant further says that at all times hereinafter mentioned prior to the 17th day of February, 1914, one Charles A. Cable, together with Eugene J. Cable and C. Robbins were partners carrying on a banking business at Nelsonville, Ohio, in the firm name and style of the Merchants & Miners Bank; that on said 17th day of February, 1914, said C. Robbins assigned and transferred his interest in the said partnership to Charles L. Baird and John C. Baird, and thereafter until the 12th day of March, 1914, the said Charles A. Cable, Eugene J. Cable, Charles L. Baird and John C. Baird, as partners as aforesaid, carried on the said banking business in the said name and style.

      : '“The defendant, the Nelsonville Foundry & Machine Company, a corporation duly organized and existing under and by virtue of the laws of the State of Ohio, in consideration of money procured by' it from said Merchants & Miners Bank, executed and delivered to the said Merchants & Miners Bank its several promissory notés as follows, to-wit: * * *
    ‘ "' That said Merchants & Miners Bank continued to hold and own said notes from the time of the execution and delivery of each of them as aforesaid until the 18th day of January, 1911, when the said notes were merged in the judgment hereinafter set forth.
    ' ' “That on said 18th day of January, 1911, said Merchants & Miners Bank, in a certain action pending in the Court of Common Pleas of Madison County, Ohio, entitled Merchants & Miners Bank v. The Nelsonville Foundry & Machine Company, and numbered 11306 on the docket of the said court, by the consideration of the said court recovered a judgment on the said promissory notes against the said the Nelsonville Foundry & Machine Company in the sum of $18,440.33, with interest ¿rom January 18, 1911' at the rate of seven per cent, per annum, and costs of suit taxed at $-. Said judgment is unreversed and unsatisfied and no part -thereof has been paid, except the interest thereon to January 1, 1914.
    “Pursuant to the said warrants of attorney said the Nelson-ville Foundry & Machine Company entered its appearance in said cause, confessed said judgment and waived and released all errors therein. * * *
    “This ¿nswering defendant further says that in the petition filed in the said action in the Court of Common Pleas of Madison County wherein the said Merchants & Miners Bank was plaintiff and the Nelsonville Foundry & Machine Company was defendant, numbered 11306 on the docket of the said court, it wak'alleged that the plaintiff,' said Merchants & Miners Bank, was a corporation organized and existing under the laws of the state of'Ohio and doing business in Athens county, in said state; that the said allegation of the corporate capacity of said plaintiff was 'made and inserted in the said petition through inadvertance and mistake by the then attorney of the said Merchants & Miners Bank; that there never was any such corporation organized and existing under the laws of the state of Ohio and doing business in’ Athens county, Ohio; that the plaintiff in the said action whose corporate capacity was erroneously' alleged in the manner aforesaid was the partnership then comprised of the said’-Charles-A. Cable, Eugene'J. Cable and C. Robbins.’’ *

      There was a prayer that the Madison county judgment be declared the first and best lien.
    The name of the plaintiff stated in the caption in the Madison county case was: the Merchants & Miners Bank. There are five causes of action in the petition in that case, each of which sets up a promissory note executed by the Nelsonville Foundry & Machine Company and payable to Merchants & Miners Bank, Each cause of action contains the averment that, “plaintiff is a corporation organized and existing under the laws of the state of Ohio and doing business in Athens county, in said state. ’ ’
    The first note was for $1,000, dated August 25, 1892, due one day after date. The second was for a like sum, dated August 26, 1892, due one day after date. The third was for $3,700, dated February 6, 1897, due ninety days after date. The fourth was for $2,676.07, dated October 16, 1897, due ninety days after date. The fifth was for $10,000, dated December 31, 1910, due one day after date. The interest on the several notes, except the last, was paid annually.
    The note dated August 25, 1892, contained the following:
    “And we hereby waive protest and notice thereof, and authorize and empower any attorney at law, in the state of Ohio, or elsewhere, in our names and behalf, or in the name and behalf of any or either of us, to appear before any court of record in said state of Ohio, or elsewhere, at any time after this obligation becomes due, and waive process and service thereof, and without notice, confess judgment against us, or any or either of us, in favor of the said payee for the amount that may appear to be due thereon, for the principal and interest, damages and costs of suit, releasing all errors in the judgment so confessed and waiving all right and benefit of appeal, and any and all proceedings to set aside, vacate, open, suspend or reverse such judgment.” * * *
    Each of the other notes contained language in effect the same as the language quoted.
    The two notes for $1,000, one dated August 25 and the other August 26, 1892, were executed on the authority of the board of directors of the Nelsonville Foundry & Machine Company, which authority was expressed in the following words: “That the president and secretary be authorized to make a loan of $5,000 to meet overdraft in bank and for future requirements.” The note for $3,700, was executed on the authority of the directors expressed in the following language: ‘ ‘ By motion the secretary was authorized to make notes to the banks to cover overdrafts. ’ ’ The note for $2,676.07 was executed on the authority of the directors that “the president and secretary be authorized to give notes for same.” The board of directors gave no authority for the execution of the $10,000 note.
    Since prior to August 25, 1892, Charles A. Cable, Eugene J. Cable and C. Robbins were partners carrying on a banking business at Nelsonville, Ohio, in the firm name and style of Merchants & Miners Bank, the payee in the above named notes. The notes were given for money loaned the Nelsonville Foundry & Machine Company. At the date of the first and second notes, August 25 and 26, 1892, the directors of the Nelsonville Foundry & Machine Company were Charles A. Cable (the same person who was one of the firm doing business as Merchants & Miners Bank), J. W. Jackson, R. Barneeut, Charles Robbins and C. E. Poston. These notes were signed: “The Nelsonville Foundry & Machine Co., by Chas. A. Cable, President, and C. E. Poston, Secretary-Treasurer. ’ ’ In 1897, when the second and 'third notes above referred to were given Charles A. Cable, C. Robbins, C. E. Poston, J. W. Jackson and R. H. Jackson were the directors, and the note of February 6, 1897, was signed. ‘! The Nelsonville Foundry & Machine Co., by J. W. Jackson, President, and C. E. Poston, Secretary-Treasurer.” The note of October 16, 1897, was signed: “The Nelsonville Foundry & Machine Co., by C. E. Poston, Secretary-Treasurer.” The minutes of the Nelson-ville Foundry &• Machine Company recite that on April 29, 1909, there was held the annual meeting of its stockholders and “that the majority of the stock being present the meeting was called to order. * * * Stockholders present: C. A. Cable C. Robbins, H. H. Jackson (plaintiff) and R. H. Jackson.” Directors elected were: C. A. Cable, C. Robbins ,Fred Weymueller, H. H. Jackson and R. H. Jackson. At a meeting of the directors held the same day C. A. Cable was elected president, and R. H. J aekson secretary-treasurer. The same record recites that there was a stockholders meeting on August 22, 1912, at which time C. A. Cable, C. Robbins, H. H. Jackson and R. H. Jackson were elected directors and some one elected in the place of Weymueller. Neither the stockholders nor directors .of the Nelson-ville Foundry & Machine Company have ever met since April 29, 1909, except on the one occasion, August 22, 1912, when the stockholders re-elected the old board of directors with one exception. Mr. R. H. Jackson has been secretary-treasurer of the Nelsonville Foundry & Machine Company since 1901, and general manager since prior to 1909, and during all that time has been the one salaried official of the company and its control has been in his hands.
    Oral evidence was received at the trial in this court, over the objection of the Nelsonville Foundry & Machine Company, to show that Merchants & Miners Bank, described as a corporation in the Madison county suit, was the partnership composed of Charles A. Cable, C. Robbins and Eugene J. Cable doing a banking business in Nelsonville, and whose assignee is Charles L. Baird, trustee. Oral evidence was also received, over the objection of such defendant, to show that there is no Ohio corporation by the name of the Merchants & Miners Bank. The Madison county judgment was taken January 18, 1911. 'The petition in that ease did not contain an averment that the plaintiff was a partnership formed for the purpose of carrying on a trade or business in Ohio.

      Ch'osvenor, Jones & Worstell and L. G. Addison, for W. S. Weitzell,- receiver.

      Foster & Wells and Webber, McCoy & Jones, for Charles L. Baird, trustee.
   Sayre, J.

The judgment record introduced in evidence shows that the plaintiff was described in the Madison county ease as a corporation. The introduction of the judgment record is objected to because it does not show that the plaintiff therein is identical with Merchants & Miners Bank, a partnership.

Oral evidence, introduced on the trial, shows that Merchants & Miners Bank, a partnership, employed a lawyer to take judgment for it on the cognovit notes in Madison county against the Nelsonville Foundry & Machine Company, and that he by mistake, described the plaintiff in that case as a corporation, and further that there is no Ohio corporation by the name of the Merchants & Miners Bank.

Should this evidence be excluded? The averments in' the petition in the Madison county case that the plaintiff was a corporation were immaterial ones (Brady v. National Supply Co., 64 O. S., 367). These are merely descriptive of the plaintiff and of no more consequence than if the plaintiff’s name in the caption read: The Merchants & Miners Bank, a corporation.

The precise question for this court then is: In a suit on a domestic judgment, where it appears that the ' name of the party plaintiff in the judgment sued on is not identical with the name of the party claiming to have secured the judgment, can parol evidence be received to show that the parties are, in fact, identical? A ease can readily be imagined where the admission of such evidence would be absolutely necessary. If the name of the plaintiff in a suit for recovery on a judgment was exactly the same as the name of the plaintiff in the transcript of the judgment sued on and there was an answer to the effect that they were not the same parties, parol evidence would be imperative. "While the authorities are not in accord on the subject the great weight of authority sustains the rule that parol evidence is admissible to prove that the parties are identical. A list of them follows: State, ex rel Prescott, Jr., et al v. Hanousek, 19 C. C., 303; Missouri Glass Co. v. Gregg (Tex.), 16 S. W., 174; U. S. Nat. Bank of N. Y. v. Venner, 192 Mass., 449; 52 N. E. 543; Fisher, Brown & Co. v. William I. Fielding, 67 Conn., 91; 32 L. R. A., 236; Samuel Boy den, Jr., v. Hastings, 17 Pick., 200; Morris v. The State, ex rel Brown, 101 Ind., 560; Hollenbeck v. Stanberry & Son, 38 Iowa, 325; Mobile & Montgomery Railway Co. v. Yeates, 67 Ala., 164; James H. Barry & Co. v. John H. Carothers (6 Rich. Law, 331), 6 S. C., 331; Stevens v. Elizee, 3 Campbell, 256; Thomas Farrar v. Hiram Fairbanks, 53 M. E., 143; Stevelie v. Reed, 2 Wash. C. C., 274.

The rule is well established that where the record of a former action, pleaded as a bar or estoppel, does not show that the parties to such action were the same with the parties to the action in which it is so pleaded, this fact may be established by parol evidence (23 Cyc., 1542).

Counsel for the receiver say that a suit to recover on a judgment presents an entirely different situation from one in which a former recovery is pleaded, but they do not point out any difference or cite any case as authority for the position that there should be a difference. It seems to us there is no difference. Both cases fall within or without the general rule that parol evidence will not be received to explain, contradict of interpret a judgment. In one case the judgment record is admitted to prove the existence of a cause of action; in the other it is admitted to prove the non-existence of a cause of action. The same record may be introduced to prove the one or the other. Since the same record can be introduced for either purpose it follows naturally and logically that if parol evidence can be introduced • to show identity of parties in one case it may in the other. Suppose Merchants & Miners Bank, a partnership, had brought another suit on the cognovit notes sued on in Madison county and had served process upon the Nelsonville Foundry & Machine Company, and the latter had answered and pleaded res adjudieata and offered in evidence a transcript of the judgment of the first suit and it was objected to for the same reason that it is objected to in this suit, what difference would there be in the assumed ease and the one under consideration? If it be admitted that the transcript of the judgment was admissible in the assumed case and that the identity of the parties could be proven by parol evidence, what reason can be assigned for excluding such evidence in the case under consideration? We are wholly at a loss to discover any reason, and conclude that the authorities which support the position that parol evidence may be received to identify the parties in a case where a former recovery is pleaded are precisely in point in an action where it is sought to identify parties in a suit on a domestic judgment. The judgment record and the oral evir dence were properly admitted.

It is contended that the Nelsonville Foundry & Machine Company did not authorize the warrants of attorney contained in the several promissory notes, and that therefore the Court of Common Pleas of Madison County did not have jurisdiction of the person of such company. It is true that the only authority extended by the directors was to make notes to cover overdrafts, except in the case of the note for $10,000 where no authority whatever was given by any positive act of the directors acting as such. However, the two notes for $1,000 each, dated August, 1892, had been existing contracts between Merchants & Miners Bank and the. Nelsonville Foundry & Machine Company for eighteen years before they were reduced to judgment. The note dated February 6, 1897, and the one dated October 16, .1897, had been existing contracts between the same parties for thirteen years before they were reduced to judgment. During that entire time the company had paid interest on the notes. The notes executed in August, 1892, were signed by Charles A. Cable, president, and C. E. Poston, secretary-treasurer.' ’The note dated February 6, 1897, was signed by J. W. Jackson, president, and C. E. Poston, secretary-treasurer. The note of October 16, 1897, was signed by C. E. Poston, secretary-treasurer. While the knowledge acquired by Charles A. Cable, as he was one of the partnership composing Merchants & Miners Bank, as to the contents of the notes might not have been the knowledge of the company, yet C. E. Poston, who signed all four notes and had no interest in such partnership, was secretary-treasurer and his knowledge of the contents of the notes was the knowledge of the company. Poston was one of the officers authorized by the board of directors of the corporation to execute notes, and that matter was his especial business and within the scope of his authority. Knowledge of the officers and agents of a corporation within the scope of their- official capacity and agency is the knowledge of the corporation. Thompson on Cor porations (2d Ed.), Section 1646; The F. N. B. of New Bremen v. Burns et al, 88 O. S., 434. In the case of Dickinson v. Zubiate Mining Co. (Col.), 106 Pac., 123, it is held that:

‘ ‘ Through the president and secretary who executed a written agreement in a corporation’s behalf, it must be deemed to have had notice thereof, when it was made.”

“The most comprehensive rule with reference to this subject which can be stated is that notice communicated to, or knowledge acquired by, the officers or agents of corporations when acting in their official capacity or within the scope of their agency becomes notice to or knowledge of the corporation for all judicial purposes.” 10 Cyc., 1054.

Another rule equally well established is that:

“A corporation may ratify by passive acquiescence, as well as by affirmative action, the unauthorized acts of its agents, and the acquiescence with knowledge, if continued for a considerable time, operates as a ratification.” Knowles et al v. Northern Texas Traction Co. (Tex.), 121 S. W., 232; Thompson Corporations, Section 1407.

All four of the notes could have been taken up long ago and renewals given without the warrants of attorney if the corporation had any desire to set right the unauthorized acts of its officers, but its acquiescence for so long a time without any objection whatever deprives the corporation of the right to now say that the warrants of attorney are without its authority. To say that the terms and stipulations contained in notes which have been owed by a corporation for more than thirteen years, and on which the interest has been paid, were unknown to the board of directors as a- board, especially when the president and secretary of the corporation, both of whom were directors, signed the notes, is a proposition so much at variance with the ordinary knowledge and duties of corporate officers that it ought not to receive any serious consideration. The further argument that ratification by individual directors is not a ratification by the board is a proposition which would at once destroy the doctrine of ratification by acquiescence, which is well established. Ratification by acquiescence means, ordinarily, ratification without formal action. It means knowledge of the fact without any act of any kind 'for a considerable period of time.

It is further contended that the Madison county court had no jurisdiction of the machine company because a warrant of attorney must be strictly construed, and as Merchants & Miners Bank was in fact a partnership the attorney at law who confessed the judgment in Madison county had no authority to confess a judgment in favor of the Merchants & Miners Bank, a corporation, citing Spence v. Emerine, 46 O. S., 403; Bank v. Post, 22 C. C., 644, and other eases of like import. It will be noticed that the payee in the notes referred to is Merchants & Miners Bank. If attention is directed solely to the record in the Madison county case the notes were strictly construed when judgment was entered for Merchants & Miners Bank because it was the payee and obligee named in the notes. Whether it was a corporation or not can not be determined by .the notes because they are silent as to that matter, and as Merchants & Miners Bank must necessarily have been either a corporation or partnership, an individual or individuals doing business in that name, there is nothing in the record in that ease to show that in giving judgment for Merchants & Miners Bank, a corporation, the judgment was not given in strict accord with the terms of the notes. It is only when we go outside the record of the Madison county case that any reason can be found for saying that the notes were not strictly construed and judgment given for a party who was not entitled to it. It is only when the record in the instant case comes into view that the authority of the attorney at law who confessed the judgment can be questioned. So the whole matter is reduced finally to whether oral evidence can be received to show that the plaintiff in the Madison county judgment was identical with Merchants & Miners Bank, a partnership. If it can, as we have decided, then it at once appears that the judgment was confessed in favor of Merchants & Miners Bank, a partnership, for it was in fact the plaintiff in that suit.

The note for $10,000 was given within a month before it was reduced to judgment and was signed: The Nelsonville Foundry & Machine Company, C. A. Cable, president, R. H. Jackson, secretary. The board of directors was not in session a single time in a period of almost five years prior to the appointment of a receiver for the machine company, the last meeting being April 29, 1909, and the records further show that outside of the annual meeting, at which times they elected officers, the board of directors did not perform a single act relating to the business of the corporation after some time in 1904. R. H. Jackson since prior to 1909 has been secretary-treasurer and general manager of the corporation and made the following statement at the trial in the court of common pleas:

“Would you mind if I would tell you that the directors, and the stockholders in their yearly meeting would say they would turn over a new leaf every year, ‘now, we will get together and we will have meetings, regular meetings, and will look after business a little bit closer and will help you out,’ and that is the last I would hoar of them until the next meeting. ’ ’ .

But the next meeting after April 29, 1909, never came. So that for a period of almost five years prior to the appointment of the receiver on March 24, 1914, the board of directors never met. They ceased to direct the corporation and as directors became dormant. R. IT. Jackson was the only officer connected with the corporation who was compensated. The business was being conducted at a loss. The directors were not interested. They, by their acquiescence, allowed the business to be conducted by Mr. Jacks on, and he had entire charge of the same during the period of five years. The stockholders present at the annual meeting in 1906 were C% A. Cable, Fred Weymueller representing stock of I. O. O. F., H. H. Jackson and R. H. Jackson. Those present at the annual meeting in 1907 were the same persons and C. Robbins. Those present at the annual meeting in 1908 were Cable, Robbins, Weymueller and R. H. Jackson. Those present at the annual meeting in 1909 were Cable, Robbins, H. H. and R. H. Jackson. Those present at the annual meeting of August 22, 1912, were Cable, Robbins, H. H. and R. H. Jackson, and two persons representing stock of the I. O. 0. F. So since 1906 the stockholders who attended the annual meetings were Cable and Robbins, both interested in Merchants & Miners Bank, the two Jacksons, and representatives of the stock of I. O. 0. F., and of these, Cable and the two Jacksons, owned five-sixths of the stock.

Now the stockholders never held a meeting during that five year period either, except on the one occasion, August 22, .1912, when they elected the old board of directors, being the same persons (with one exception) who had not met during the five year period. So the stockholders acquiesced in the action of the directors in allowing Mr. R. H. Jackson to manage and control the business of the company.

At the time of the execution of the $10,000 note oh December 21, 1910, the directors had not met for one year and seven months, and the stockholders were allowing the general manager, Mr. R. H. Jackson, to assume and exercise the powers of the board of directors. Their attitude in the matter is clearly seen by the re-election'of the same directors in 1912 with the single exception. This shows that they, the stockholders, were willing that the single officer should assume the duties of the board of directors, for they knew the board of directors was such only, in name.

Thompson on Corporations, Section 1409 (2d Ed.), says:

“Generally where the stockholders, by their direction or acquiescence, invest the executive officers of the company with the power and functions of the board of directors, as a continuous and permanent arrangement, the board being entirely inactive, and the officer discharging all its duties, a transaction consummated in behalf of the corporation by such officer will be valid though not specifically authorized by any vote of the stockholders or directors.”

In the case of The Smead Foundry Co. v. Abram M. Chesbrough, 18 C.. C., 783, cited so frequently by counsel for the machine company, the fourth paragraph of the syllabus reads in part as follows:

“The president of a corporation has no power, by virtue of his office, to execute a bond and warrant of attorney for the entry of judgment by confession against a corporation. Such power is vested in the board of directors only. But the president’s authority may be enlarged beyond the powers inherent in his office by the consent and acquiescence of the directors in permitting him to take control of the business of the corporation. ’ ’

The evidence shows beyond dispute that the stockholders permitted the directors to surrender their offices to the general manager for a period of five years. The note of December 31, 1910, was executed nineteen months after the board of directors ceased to meet and as a board became defunct. The act of R. H. Jackson in signing the $10,000 note was the act of the corporation. R. II. Jackson had succeeded to the power of the board of directors. They could have executed a judgment note to the bank on December 31, 1910. Hence, under the circumstances, he could. The note of December 31, 1910, was beneficial to the machine company, and it can not now say, under the circumstances as appear beyond dispute in the evidence, that the warrant of attorney contained in that note was without the authority of the company.

Does the failure to aver in the Madison county petition that the plaintiff was a partnership formed for the purpose of carrying on a trade or business in Ohio render the judgment void ?

In Beers & Co. v. Gurney, 14 O. C. C., 82, the court held that where the defendant fails to take advantage of such failure by proper pleading the objection is waived. The case under consideration, however, is different from that one, in that the judgment here in controversy was taken on confession and the defendant’ had no opportunity to make any objection. However, the Madison county court of common pleas had jurisdiction of the parties and of the subject-matter, and the petition therein was such an one as could have been amended and the proper averment made, as the record (outside the judgment record) shows that Merchants & Miners Bank was a partnership formed for the purpose of doing business in Ohio.

As said in Spoors v. Coen, 44 O. S., 497:

“If the case presented invoked the jurisdiction of the court, and could have been perfected by amendment, the judgment of the court then could not be treated as a nullity.”

An amendment could have been made showing the plaintiff had legal capacity to sue in the Madison county case. Besides, the waiver of errors in the warrants of attorney would seem to be sufficient to waive just such an error as this. We have no doubt that had the defendant joined issue on some other averment in the Madison county case without raising objection to the failure to aver that the plaintiff was a partnership formed for the purpose of carrying on business in Ohio, and the plaintiff had recovered a judgment, that judgment would.be valid. If this is true and the error could be waived under such circumstances, it was waived by the language of the cognovit notes.

The decree will be in accordance with this opinion.

Decree accordingly.

Walters, J., and Merriman, J., concur.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    C. O. D. CHARGES AGAINST A CORPSE.
    Court of Appeals for Cuyahoga County.
    The Adams Express Company v. Sol. Deutsch, Administrator.
    Decided, May 14, 1917.

      Shipment of Dead Bodies—May Not he Stripped of Grave Clothes to Satisfy Charges—Effect of Failure to Require a Deposit to Meet Charges—Carriers—Evidence.

    1. In an action against the shipper of a corpse to recover “c. o. d.” charges from the express sompany which carried the corpse, evidence is not competent to prove the manner in which the body was dressed or the kind of casket in which it was enclosed, where the purpose of the evidence is to show that by stripping the body of its cerements and selling them the express company might have realized enough to have satisfied all or some part of the unpaid charges.
    2. An express company is a common carrier and not a collection agency, and failure on its part to insist upon notice of deposit at destination of “c. o. d.” charges on a dead body does not relieve the shipper, under the Interstate Commerce Commission rule, of requiring that such a deposit be made, and his own default in the matter prevents his looking to the company to make good the omitted deposit.

      Square, Sanders & Dempsey and Ellis B. Diehm, for plaintiff in error.

      Joseph L. Stern, contra.
   Grant, J.

Error to the municipal court.

The following are the facts which we deem material in the review of this cause. The Adams Express Company, plaintiff in error, but defendant below, is a common carrier of property for hire.

• The intestate of the defendant here, plaintiff below, delivered to the express company a human corpse for shipment to Providence, Rhode Island, in a sealed case or casket. The consignment was thus sent c. o. d.; the accompanying bill to be collected and secured by the corpse was $85. The bill was not paid by the consignee at Providence. The transportation charge was paid by the shipper. After some negotiations between the parties the corpse was at last delivered to the consignee at the point of destination, notwithstanding his refusal to pay the bill. Whereupon the intestate named commenced this action in the court below to recover the amount of the bill which accompanied the body as for a violation of his instructions to the company in failing to collect at the end of the journey, the theory of the sdit being that such failure was in breach of the contract of carriage. There was a recovery by the plaintiff below, and to reverse that judgment this proceeding is prosecuted here.

•'Two assignments of error are made and argued.

The first of these has to do with the admission of certain testi.mony, the only function of which, as the defendant company contends, was to vary the unambiguous terms of a written contract, but which, as his adversary says, was allowable to explain that separable part of the instrument which was a receipt merely and not a contract. Such being the point here in dispute, the testimony received over objection was to the effect that the corpse in question was encased in a coffin and dressed in a shroud. The purpose of such evidence seems to have been, if we understand the drift of it—and it could not well have had ahy other— to .cast on the express company some sort of an obligation to strip the body of its cerements and put these on the market in fulfillment of its assumed c. o. d. obligation to realize on the bill.

There was a time when a certain individual—perhaps a forebear of some in our day-—stood on the bridge at Venice and made loans on living human flesh and other collateral, but his security at least had the merit of.being live paper; the subject, though ■ serious for the debtor, had not the grave aspect of the question before us.

We take the long and the short of the matter to be this: .A corpse, to the pommon apprehension—and rightly so, too—-means a dead body in its coffin. To segregate the- one from the other would do violence to ordinary thinking, just as much as it would offend against decency and health. To suggest that it would he the right, and much less the duty, of one having a corpse in that sense in his possession to subject it to the indignity of being stripped of its garments and exposing these to sale at public outcry or vendue, would, it should seem, put the one who did it below the condition of the Rialto man and make him a stranger to shame’s comparatively honorable blush.

And the futility of the thing also would be its condemnation. The woman who bought the second-hand gravestones did so because perhaps her daughter might marry a man of that name, and then, at son-in-law’s wished-for death, she would, to use her expression, “be right in town.”

It is a matter of usual observation that coffins in which bodies are conveyed to crematories are not brought back for sale or further use, but are themselves burnt.

In cases that may easily be imagined, the use of second-hand coffins would be a serious menace to public health, and safety. For aught that we know to the contrary, the corpse may have been that of Lazarus after four days.

Upon these considerations, and assuming but not finding that the testimony in question would not be obnoxious to the disability of working a variation of the terms of a written instrument, we are of the opinion that, nevertheless, it was improperly received in evidence and that its admission was manifest error.

'The remaining point argued is that the judgment under review is contrary to law. We shall dispose of this question much more briefly than do the briefs.

It is in evidence in the case that the Interstate Commerce Commission had promulgated, and there was in consequent force, at the time of the shipment of the corpse to Providence, an official tariff or classification, which was as follows:

“Corpses must not be sent c. o. d., nor with charges to collect, unless the money to pay the e. o. d. bill, and charge for trans-portation, .is deposited with express agent at destination, before shipment, and in such cases destination agent shall telegraph agent at shipping point as to the amount of money placed in his hands to cover the charges or to cover the c. o. d. bill, or both, as the case may be.”

This tariff classification had the force and effect of a statute, the existence and terms of which Deutsch was bound to know. ITe was presumed to know also that the express company as a common carrier was not at liberty to depart from its requirements, and that if it did so it would be liable to certain penalties or penal consequences. Yet Deutsch did not observe the condition annexed to his shipment in this respect and did not see to it that the deposit required at the other end of the route was made, although there is some contradictory testimony in the record as to a promise or undertaking on the part of some one to make provision in that regard.

We do not consider it material whether there was or not any negotiation with the agent of the express company looking to the shipper being in this instance relieved from the operation of the tariff requirement on the assurance of somebody that the money would be forthcoming when the corpse reached its destination. It is enough to say that there was.no duty resting on the company in that respect. The duty of seeing that the deposit was provided was that of Deutsch alone.

The express company is a common carrier, not a collection agency. Whether Dqntsch got his pay or not was his concern, not that of the express company.

Deutsch disobeyed that which as to him and in that case was the equivalent of positive law. If the express company was itself at fault in shipping the corpse without having evidence of the deposit at the other .end of the route—and we are not saying that it was—that fact did not exonerate Deutsch from an observance of the tariff and is quite beside the question.

We are of the opinion that the courts should leave Mr. Deutsch where he left himself and not aid him in extricating himself from that position.

Upon the proved if not admitted facts of the case, we think the law was with the express company, for which, and not for the plaintiff below, judgment should have been given.

For the errors found the judgment under review is reversed and the cause is remanded to the municipal court of Cleveland for such proceedings there as may be in accordance with the law of the case.


author: Powell, J.

text:
    DESCENT OF AN ESTATE LEFT IN TRUST.
    Court of Appeals for Ashland County.
    Clinton C. Ricket, Trustee, v. Jay Peck and Elizabeth Peck et al.
    Decided, April Term, 1917.

      Wills—Property Devised for Life to Son and in Trust to Grandson— Then to Other Grandsons or Their Survivors—Deed from Trustee Not Necessary to Transfer the Title.

    Where a will devised to a son of testatrix a life estate in certain land and then created a trust in the remainder to one of three grandsons, providing if he die without children surviving him, the fee shall go to the other two grandsons or their survivor, the fee is vested in and the land descends to the surviving grandson, upon termination of the trust estate, and the title would vest in said surviving grandson without a deed from the trustee as provided by will. The fact that the trustee made a settlement of the trust estate some years prior to the execution of a deed to such survivor does not affect the validity of the deed; and' a trustee of the surviving grandson, appointed after the original trust had expired and the estate descended, has no right to recover possession of the premises so devised.

      Peter Emslie, for plaintiff in error.

      E. M. Palmer and Wiclcham & Martin, contra.
   Powell, J.

This was an action in ejectment. The plaintiff filed his petition as trustee of one C. F. Denham, to recover possession of certain.real estate described in his petition, now in the possession of the defendants Jay Peck and Elizabeth Peck, and claimed to be owned by them.

The rights of • the parties are all derived from the will of Caroline Ensign, who was the owner of the lands described in the petition, at the time of her death. She died testate, July 5, 1895, leaving two sons, Milan Denham and Cornelius Denham, and three grandsons, William Denham, John Denham, and C. F. or Frank Denham, sons of the said Milan Denham.

By the terms of her will she gave the east half of the farm owned by her in this county to her son, Cornelius Denham, in fee simple. To her son, Milan Denham, she gave a life estate to the west half of her said farm, together with certain rights in her personal property, which was left in the hands of her executor for the use and benefit of said Milan Denham during his lifetime.

By Item 5 of her will she created a trust in the said wlest half, after the death of Milan, for the benefit of her grandson, William Denham, and provided that if William Denham should die without leaving children surviving him the said west half should pass in fee simple to her grandsons, John Denham and Frank Denham, and if either John Denham or Frank Denham should die before the death of said William Denham, without children surviving him, said west half should descend to the surviving grandson in fee simple.

'To carry the trust so created by her in favor of William Denham into effect, she named one Charles McClave as trustee, and the said ^McClave was, after her death, duly appointed as such trustee and carried out the terms of such trust until the death of William, when the trust terminated.

Milan Denham died March 9, 1904. John Denham died January 14, 1908, leaving at the death of William Denham, which occurred January 28, 1909, and when said trust terminated, Frank Denham as the only survivor of the devisees named in said will, having an interest in the west half of said farm.

At the death of William Denham, McClave as trustee filed a final account, March 24, 1909. This account was approved by the court and afterwards, February 25, 1914, McClave executed a deed, as such trustee, to the said Frank Denham, for the lands in the petition described and in controversy in this proceeding.

The issue presented to the court for adjudication is made by an answer to the petition, in the nature of a general denial of all the material allegations in the petition and amended petition contained. This issue puts the plaintiff upon proof of his title and his right to possession of the lands sought to be recovered.

The evidence adduced and disclosed by the bill of exceptions shows—

1. A record of the appointment of plaintiff as trustee.

2. The will óf Caroline Ensign, but not the order admitting the same to probate.

3. The record of the appointment of Charles McClave as trustee for the benefit of William Denham.

4. The final settlement of McClave as such trustee.

The other facts above set forth were agreed to by counsel in open court.

At the close of plaintiff’s testimony, defendants moved that the ease be taken from the jury and a verdict in their favor be directed by the court. This motion was sustained.

Upon an examination of the record, the court is of the opinion that the will of Caroline Ensign fixes and determines all the rights of the parties to this proceeding.

Item 5 of the said will creates a trust, and as we view it, a trust solely for the benefit of William Denham in the lands described in the petition, and in certain personal property mentioned in said will. At the death of William Denham this trust so created terminated, and by the further provisions of .said will the title to said lands passed in fee simple to the said Frank Denham, he being the survivor of the two devisees named to take said title at the death of William without children surviving him.

Nothing remained to be done to carry out the trust so, made except the filing of a final account by the trustee, and. possibly the execution of a deed by him to the said Frank Denham.

The will provides that a deed should be executed by the said trustee. The court, however, is of the opinion that it matters but little whether or not such deed was made or not, as the will itself was the source of Frank Denham’s title,- conveying to him an absolute estate in said west half upon the death of 'William without children surviving him, and that without the intervention of any trustee.

It is contended that because McClave had made his settlement some years prior to the execution of the deed by him to said Frank Denham, such deed would be without legal effect.

We think this contention is not well taken, and that by analogy to the rule in cases of administrators and executors the authority of a trustee -continued, even after final settlement, until the duties of such trust as designated in the instrument creating the trust shall have been fully performed.

We cite Taylor v. Thorn, 29 Ohio St., 569, where the court say:

“The administrator had not resigned, nor had he been removed. Neither his functions nor duties would cease until the estate was fully„settled.”

We also cite, McAfee v. Phillips, 25 Ohio St., 374; Weyer et al v. Watt, Exec., 48 Ohio St., 545.

The first proposition of the syllabus in the ease last cited is as follows:

“1. The authority of an executor or administrator to represent the estate, unless terminated in one of the modes provided by statute, continues until the estate is fully settled.”

This rule, we think, applies to a trustee appointed by any court of competent jurisdiction, and if it was necessary that a deed be made by McClave to, Frank Denham in order to convey complete title to him, the deed of February 24, 1914, would be effectual for that purpose.

The court is of the opinion that upon the record as presented plaintiff was without any legal right to the possession of the lands sought to be recovered; that while he was appointed trustee, as appears by the record of the probate court of this county, offered in evidence, he was so appointed after the trust had expired; that nothing remained for him to do as such trustee; and that the lands described descended in fee simple to Frank Denham, under the express provisions of the will of Caroline. Ensign to that effect.

It appears that the plaintiff is without title to said lands as trustee or otherwise, and without any right of possession, and the court did not err in sustaining the motion to direct a verdict.

In eases of this kind, if the plaintiff is entitled to recover, it is upon the strength of his own title and not upon the weakness of the title of his adversary, and the plaintiff in this ease, having failed to show any title in himself, or right of possession, the court properly instructed the jury to return a verdict in favor of the defendants, and that judgment we think ought to be affirmed.

Judgment affirmed.

Houck, J., and Shields, J., Concur.


author: Kinkade, J.

text:
    RECOVERY FOR. FUTURE PAIN AND SUFFERING.
    Court of Appeals for Lucas County.
    The Toledo Railways & Light Company v. Edward Poland, Guardian of Isadore Poland.
    Decided, January 26, 1914.

      Damages—May be Recovered for Future Pain and Suffering Only, When—Competency of an Explanation as to Failure to Call a Certain Witness— Charge of Court as to Last Chance Not Permissible, When—Loss of Ability to Earr Wages During Minority.

    1. In an action to recover damages for personal injury no recovery can be had for future pain and suffering except such as the evidence shows are reasonably certain to result from the injury sustained. Evidence that pain or suffering “may” or “might” result is not competent. Evidence that such results will probably follow is competent, but to justify a recovery therefor the jury must find from all the evidence that reasonable certainty of results exists and the jury should be so charged.
    2. Where it becomes important for the defendant to explain the omission to call a witness, who was in employ of defendant and present at the happening of a stated event, it is error to exclude evidence offered by defendant showing that no record was kept by defendant of the address of such employee.
    3. The court should not charge the jury on the subject of the last clear chance when that issue is not presented in the pleadings or by the evidence.

      4. The charge of the court to the jury with respect to the recovery by a minor for loss of ability to earn wages, by reason of the injury sustained, should definitely exclude the period covered by his minority, unless the evidence shows the minor to have been emancipated.

      King, Tracy, Chapman & Welles, for plaintiff in error.

      Ashton II. Coldham and Boggs (& D’Alton, conlra.

   Kinkade, J.

Error to the Court of Common Pleas.

This is a personal injury ease. Isadore Poland, a boy fifteen years of age, was a passenger on a street car operated by the Toledo Railways & Light Company, hereinafter designated as “The Company.” As the car approached 'Troy street, Poland informed the conductor that he wished to leave the ear at that street, and thereupon the conductor signaled the motorman by bell to stop the car at Troy street. The motorman in obedience to the signal slackened the speed of his car for the purpose of stopping as directed, and while the evidence is in conflict as to whether he actually came to a full stop, and if he did, whether it was at .the usual place of stopping to receive or discharge passengers at that street, the motorman testified that he did make a full stop and that it was at the usual stopping place. At or near Troy street Poland left the car and went immediately around the rear end of the car, intending to cross the parallel track which was some three feet distant, on his way to his home in that vicinity. As he crossed the space between the two tracks, and before he had stepped upon the other track, he was struck by another car of the company, going in the opposite direction from that of the car on which he had been riding, and was seriously injured.

The negligence of the company alleged was excessive speed of the car which struck Poland, a failure to stop the car before passing the' other car which had stopped to discharge a passenger, the stop being required by ordinance of the city, and the failure to give warning by bell or gong of the approach of the car while crossing the street or when passing another ear, as required by city ordinance. 'The company in its answer denied all acts of negligence and alleged contributory negligence on the part of Poland, which was denied in the reply. The jury returned a verdict in favor of Poland for three thousand dollars, upon which judgment was entered.

Our attention is called to a great many errors said to be manifest in the record justifying a reversal of this judgment, among which are the following:

Poland called as witnesses two physicians who testified fully as to the extent and permanency of his injuries. Both of these expert witnesses were permitted, over the objection of the company, to state what “might” develop in the future from the injuries described. They stated that the injuries “might” cause epilepsy, paralysis or insanity. Neither- of the doctors gave it as his opinion that either of the three things mentioned was reasonably certain to result, nor even that it would probably result, from the injury. The motion of the company to withdraw these statements from the consideration of the jury was overruled and exception saved.

We think the evidence was clearly incompetent and prejudicial. Two decisions of our own Supreme Court establish the proposition that there can be no guessing or speculating permitted on the part of either the court or the jury, and that the only damages arising in the future for which recovery can be had are such as are shown by the evidence to be reasonably certain to follow from the injury received. We cite the case of Cleveland Terminal & Valley Railroad Company v. Marsh, 63 O. S., 236, and Pennsylvania Company v. Files, 65 O. S., 403. If there must be reasonable certainty as to damages accruing in the future, it is entirely clear that to justify a recovery the evidence should be such as will enable the jury to find that there is reasonable certainty that those things will result from which such damages must arise. 'The two decisions cited settle the question, but we call attention to the following authorities to the same effect: Lentz v. City of Dallas, 96 Texas, 258; Turner v. Lovington Coal Mining Co., 156 Ill. App. Ct. Rep., 60; Briggs, Gdn., v. The N. Y. C. & H. R. R. Co., 177 N. Y., 59; Collins v. City of Janesville, 99 Wis., 464; Cross v. City of Syracuse, 200 N. Y., 393.

We think that the proper practice is to first ask the expert witness whether he is able to state what results will probably follow, or are reasonably certain to follow, before permitting him to give his opinion as to what the results will probably be. Expert witnesses may not be willing to state that designated results are reasonably certain to follow. They may desire to go.no further than to say that such results will probably follow. We think the evidence in this form is competent, but when the evidence is all before the jury the court must instruct the jury in accord with the law as laid down in Pennsylvania Co. v. Files, 65 O. S., 403, viz., that only such damages occurring in the future can be recovered as are shown by the evidence to be reasonably certain to follow.

During the trial it became important for the company to explain its failure to produce the evidence of a nurse who was present at the hospital when Poland signed a written statement as to how the injuries occurred. The company offered to prove by the house physician of the hospital that there was no record kept there of the names or residences of nurses such as the one in question. This evidence was excluded and exception saved. We think the evidence was competent and a majority of the court are of opinion that its rejection was prejudicial error.

In the general charge the court instructed the jury as to the duty of the servants in charge of the car after they saw, or by the exercise of ordinary care might have seen, Poland approaching the track. We think the language employed was equivalent to stating the doctrine of the last chance, and as there was nothing in the pleadings or evidence presenting such a situation, the giving of this instruction constituted prejudicial error.

In the general charge the court instructed the jury with respect to the right of Poland to recover for loss of ability to earn wages in the future. This part of the charge is erroneous in so far as it covered the period of his minority, there being no evidence in the case tending to show that Poland is entitled to receive and use his own wages during his minority. This question was decided by this court in the case of Standard Steel Tube Company v. Prusakicueicz, 15 C.C.(N.S.), 21; 33 C. D., 133, 139, decided November 25, 1911, and affirmed by the Supreme Court, without report, in 87 O. S., page 472.

We can not sustain the claim of the company that the evidence so clearly established contributory negligence as that a verdict should have been directed in its favor. In view of the conflict in the evidence we think the trial court was right in submitting the* case to the jury on all questions of negligence and contributory negligence. We do not see the difference' urged by counsel for the company between the principles announced in the case of Cincinnati Street Railway Co. v. Snell, 54 O. S., 197, and the case of Cleveland Electric Railway Co. v. Wadsworth, 1 C. C. (N.S.), 483 (15 C. D., 376), affirmed by Supreme Court, without report, 70 O. S., 432. It was for the jury to find under proper instructions from the court what the facts were and whether the case was one falling within the law as stated' in the Snell case or the Wadsworth case.

The .contention of counsel for the company that there was prejudicial error in permitting one of the physicians .to state that Poland’s facial nerve was paralyzed as this was not set up in the pleadings, we think is untenable. The petition alleged a fracture of the skull, Concussion of the brain and an impaired and diseased mind, and stated further that the injury was permanent. 'The physician who stated that the facial nerve was paralyzed testified that that was a direct and natural result of the injury. Even without this last statement of the physician we think the evidence was competent under the pleadings. We cite the following authorities to sustain this position: Stevenson et al v. Morris, 37 O. S., 10; Denver & Rio Grande R. R. Co. v. Harris, 122 U. S., 597; The B. Shoninger Co. v. Edward Mann, 219 Ill., 242; Tyson v. Booth, 100 Mass., 258, 266; Sloane v. Edwards, 61 Md., 89; L. S. & M. S. Ry. Co. v. Ward, 135 Ill., 511; Hoyt v. Metropolitan St. Ry., 76 N. Y. Supp., 832.

We also cite the case of Hocking Valley Railway Co. v. Backus, decided by this court February 17, 1912, which was afterwards affirmed by the Supreme Court, without report, in 87 O. S., 508.

As the case is to be remanded for .a new trial we call attention to requests to charge before argument, numbers 8, 12 and 14, presented by the defendant and given by the court, and also to similar language used by the court upon the same subject in the general charge. These instructions are to the effect that if Poland’s negligence contributed in any degree to produce the injury he can not recover. The words “in any degree” are not used, but the language we think is broad enough to be so construed. Poland was required to use ordinary care for his own safety. Slight negligence on his part might exist consistent with the exercise of ordinary care, and such negligence would not- bar his recovery. The contributory negligence that bars recovery must not only directly and proximately contribute to the injury, but it must be such negligence as shows that the party so negligent was not exercising ordinary care for bis own safety.

We think the language of the general charge should be more specific as to the care due from Poland.' He was fifteen years of age and was required to exercise such care only as boys of his age of ordinary care and prudence are accustomed to exercise under the same or similar circumstances.

We find no errors manifest in the record prejudicial to the plaintiff in error other than as above set forth. The judgment of the court of common pleas will be reversed and the case remanded for a new trial.

Richards, J., and Chittenden, J., concur.


author: Ferñeding, J.

text:
    FAILURE TO EXERCISE DUE CARE AT A RAILWAY CROSSING.
    Court of Appeals for Morrow County.
    J. C. Williams, Administrator, v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Co.

    Decided, January 22, 1917.

      Negligence—Milk Wagon Struck at Railway Grossing—Guest of the Driver Killed—Cause Taken from Jury for Failure of Decedent to Exercise Due Care.

    Where the decedent, who was riding in a milk wagon as it approached a railway crossing, did not direct the attention of the driver to smoke and steam from a passing train, which obscured the view of the tracks, and did not request him to wait until it had cleared away before attempting to cross, it is not error to take from the jury an action on account of the death of said decedent from the striking of the wagon by a train, the approach of which was obscured by said smoke and steam.

      T. B. Maleer and J. C. Williamson, for plaintiff in error.

      Benjamin Olds and McBride & Wolfe, contra.

      Motion to dismiss petition in error, alleging a constitutional question, granted by the Supreme Court, May 29, 1917.

   Ferñeding, J.

(Judges Ferneding, Kunkle and Airead of the Second District, sitting in place of Judges Shields, Powell and Houck of the Fifth District.)

This was an action by the administrator of Bertha E. Fields, deceased, to recover for wrongful death. The trial court instructed a verdict for the defendant below at the conclusion of the plaintiff’s testimony, and the plaintiff brings the case to this court on error.

The testimony in brief shows that the decedent, in company with Roy Cornwall, were traveling along- the highway in a milk wagon drawn by a team of mules. Roy Cornwall was driving and the decedent was sitting on the floor of the wagon, with her vision somewhat obscured by the wagon itself.

They stopped about ten feet from the railroad track to permit a freight train to passthereupon the team was started, but the vision of the track was obscured by the steam and smoke of the train which had just passed. Cornwall claims to have looked for an approaching train, but admits he was unable to see any distance because of the smoke and steam. It is not very clear whether the decedent looked or listened for an approaching train, but it is clear that she could have seen the smoke and steam had she looked and must therefore be charged with knowledge of the danger in going upon the track without waiting for the steam and smoke to clear away.

We think the case of the B. & O. Railroad Company v. McClellan, Admrx., is decisive of this feature of the case. It is claimed, however, that the decedent being a guest was not charged with the negligence of the driver. Still, under the case of Toledo Railway & Light Company v. Mayers, 93 O. S., 304, relied upon by counsel for plaintiff in error’, she was bound to use due care, and such due care would include the duty of observing the dangerous condition of the crossing immediately in front of the wagon in which she was riding and charge upon her the duty of notifying the driver and requesting him to wait until the smoke and steam cleared away.' This, the testimony shows, she did not do and was therefore guilty of negligence.

In addition, it fairly appears from the petition that Cornwall, tiie driver, and the decedent were engaged jointly in the particular enterprise at the time the fatal accident occurred. At least, the petition does not show that the decedent was merely a guest and without responsibility or control over the driving of the team.

Judgment affirmed.

Kunklb, J., and Allread, J., concur.


author: Jones (Oliver B.), J.

text:
    JUDGMENT AGAINST CITY BINDS CONTRACTOR HAVING NOTICE.
    Court of Appeals for Hamilton County.
    The City of Cincinnati v. Edward W. Boston, Doing Business as The Douglas Plumbing & Heating Company.
    Decided, January 22, 1917.

      Damages Suffered from Excavation in Street—Judgment Therefor Against City Binding on Contractor Saving Notice of Suit.

    1. A judgment recovered, without fraud or collusion, against a city for injuries caused by an excavation made by a third person in a public' street which he has not properly lighted or guarded, where he has had notice of such suit with opportunity to defend, is conclusive evidence of its necessary facts and conditions, in a subsequent action brought by the city against him as being liable over to reimburse it, as though he were a party to the record.
    2. The judgment against the city however does not determine the question whether or not the person who made the excavation is in fact responsible to the city; nor is he prevented by it from setting up any defenses which from the nature of the action or pleadings he could not have interposed in the first action had he been a formal party therein.

      Chas. A. Groom, City Solicitor, Constant Southworth, Assistant Solicitor, and Chas. Tatgenhorst, Assistant Solicitor, for plaintiff in error.

      Hunt, Bennett & Utter, contra.
   Jones (Oliver B.), J.

The city of Cincinnati sought in the action below to recover from the defendant Boston, who was a plumber, the amount of a judgment and costs, which it had been compelled to pay to one Win-jam Alexander for injuries to his horse, harness and wagon by reason of an excavation made in Colerain avenue for the purpose of tapping a sewer. Alexander had sued the city and secured a judgment before a justice of the peace, from which the city appealed to the court of common pleas where upon trial to a jury a judgment was rendered against the city. Boston, while not made a party to,the record of that case, was notified of its pendency, and he and his attorney were present at the trial of the case in each of said courts. After the payment of Alexander’s judgment, the city demanded that Boston reimburse it, and on his refusal so to do the city brought this action below, clai&ning that the excavation which was the cause of the injury was made by Boston and was negligently maintained by him without proper railings, barriers or warning lights, whereby Alexander’s horse and property was injured.

The defendant in his answer admitted that he had dug the excavation complained of, or caused it to be dug, for the purpose of tapping a sewer. He admitted the bringing of. the action by William Alexander and the allegations of his petition as stated by the city and the recovering of a verdict by him against the city; and denied every allegation not admitted and denied that the facts set up by Alexander in hig petition in said case are true; and denied that the defendant (Boston) was guilty of negligence or improper conduct as alleged in plaintiff’s petition; and says that Alexander’s injury was caused by his own fault and negligence, and the careless and improper management of his horse through his agent.

The existence of the excavation or ditch in the public street or thoroughfare being admitted, the following questions were necessarily determined in the action to sustain Alexander’s recovery: (1) that this excavation was not properly protected by barricades and lights to warn and protect persons driving in the street; (2) that Alexander was'not guilty of contributory negligence in driving into the excavation; and (-3) the fact of Alexander’s injury and the extent of his damages..

The evidence is undisputed that Boston was notified by the city of the pendency of Alexander’s suit and was present at both trials of that case, in person, with counsel. Such being the fact, the judgment secured in Alexander’s case against the city was conclusive upon Boston as to all the issues of fact above enumerated.

The only defenses, then, available to Boston would be (1) as to the identity of the nuisance,—for instance, that the excavation into which Alexander’s horse fell was not the one dug by Boston; but he admits and the proof shows that it was the same; or (2) he might show that the city assumed responsibility, or agreed with him to care for or guard the excavation; but there is no claim nor any proof that the city assumed such-burden in any way to relieve Boston, and on the contrary it was shown that Boston undertook and assumed the burden of maintaining and protecting the excavation or ditch which he had dug; or (3) he might show that after having put up proper protecting barricades and lights at the excavation they were removed or interfered with by some agent of the city; but there is no claim of such defense.

There might possibly be other defenses, among which might be the so-called “act of God” or the public enemy, but no such defenses were made by Boston. Instead, in the trial of this case Boston was allowed practically to relitigate both the question of his negligence and the contributory negligence of Alexander. He was permitted, over the objection of the city, to offer evidence to show that he had properly barricaded the excavation with earth, stone and lumber, and that he had placed a red lantern properly lighted, upon a cask, over the ditch or excavation, and that the driver of Alexander’s horse had been negligent in driving into the ditch in spite of these barricades and warning light, or that the vision of the horse was defective,, although the same issues had been made or were available in the former action brought by Alexander against the city, and substantially the same evidence had been given in that trial.

A motion for an instructed verdict in its favor was made by the city at the close of all the evidence, which motion was overruled. The court in its charge to the jury stated that the issue for them to determine was whether or not Mr. Boston in what he did on' Colerain avenue was negligent, defining in his charge what would constitute such negligence and placing the burden upon the city to prove such negligence by a preponderance oJ

the evidence and also that such negligence was the proximate cause of the injuries for which Alexander recovered. The only-effect given by the court to the judgment secured by Alexander against the city was merely for the determination of the amount of recovery in the event the jury found that Boston had been negligent.

The recovery by Alexander against the city was because of the duty of the city under the law (G. C. 3417), to keep its public streets open, in repair and free from nuisance. And while it was decided that the city was liable to Alexander because of the existence of this excavation and the manner in which it was maintained and protected, when it is shown that Boston actually created the nuisance for which the city had been held, the primary liability is placed upon him and the city is entitled in turn to recover against him. Morris v. Woodburn, 57 O. S., 330, 335.

Notice having been given to Boston of the pendency of Alexander’s suit, and opportunity to take part in its trial and participate in its defense, he is bound by the result of that trial. There having been no charge of fraud or collusion Boston can not here criticize the manner of the trial or insist upon the right to retry or again litigate any of the issues necessarily determined in that case. The judgment there recovered against the city is conclusive evidence against him here, of the necessary facts and conditions, as fully as if he had been made a party to the record of that ease.

'This rule is recognized in this state in Bank v. Bank, 68 O. S., 43, in the opinion of the court at pages 49 and 50.

‘The rule is laid down in 2 Black on Judgments, Sections 574 and 575; 1 Bigelow on Estoppel, 125; and 23 Oye., 1271, and is supported by numerous authorities, among which are: Chicago v. Robbins, 2 Black, 418; 4 Wallace, 657; City of Portland v. Richardson, 54 Maine, 46; Waterbury v. Traction Co., 74 Conn., 152; Byne v. City of Americus, 6 Ga. App., 48; McNaughton v. Elkhart, 85 Ind., 384; Bloomington v. Roush, 13 Ill. App., 339; Littleton v. Richardson, 34 N. H., 179; Astoria v. R. R. Co., 67 Oregon, 538, 549.

The court therefqre erred in its charge to the jury and in the admission of evidence in regard to the question of negligence in the guarding and lighting of the excavation, and as to the contributory negligence of Alexander, as well as in refusing to grant the motion of the plaintiff for' an instructed verdict in its favor at the close of the evidence.

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

Jones (E. H.), P. J., and Gorman, J., concur.


author: Richards, J. Kinkade, J.

text:
    APPEAL FROM AN ORDER ALLOWING FEES.
    Court of Appeals for Seneca County.
    John C. Royer et al v. Walter G. Trumpler, Administrator.

    Decided, January 27, 1916.

      Appeal—Attorneys Dissatisfied With Allowance by Probate Court—Of Fees for Services in Sustaining Will—Right of Appeal to the Common Pleas Sustained—Section 11206.
    An appeal lies, by virtue of the provisions of Section 11206, General Code, from a decision of the probate court adjudging, on application made therefor by the claimant, as to the validity of an account for legal services rendered by attorneys employed by the administrator of an estate.

      Boyer & Spitlér and W. C. Bhorbacker, for plaintiffs in error.

      Milton Sayler and Frank Dore, contra.

       Affirmed, Trumpler, Admr., v. Royer et al, 95 Ohio State.

   Richards, J.

This is a proceeding in error to reverse a judgment of the court of common pleas dismissing the appeal to that court from the probate court of this county, and the only question before us is whether the original action was appealable. In order to determine that question it will be necessary to recur to the proceedings in the probate court.

The record discloses that Walter G-. Trumpler had been appointed administrator de bonis non with the will annexed of the estate of Emma R. Slusser, deceased, and was proceeding to administer the estate of the testatrix. The testatrix had named in her will a man as executor of her estate, and the person so named was appointed by the probate court in that capacity and qualified and entered upon the performance of his duties. An action to contest the will was brought and the executor employed counsel to make a defense in that action. A large estate was left and the trial of the contest occupied a considerable period of time and involved the introduction of a large mass of evidence. The trial of the action resulted in a verdict and judgment sustaining the validity of the will. Thereafter Mr. Trumpler, then acting as administrator, filed in the probate court his account as administrator, showing the receipt and disbursement of a large number of items.

After the filing of this account steps were taken in the probate court to secure the allowance of this claim in favor of the attorneys for services rendered in the defense of the will. All parties in interest were duly notified, and the matter was heard in the probate court and a finding and judgment entered in that court that the services had been duly rendered in defense of the will, and under employment of the executor, and that they were of the value of four hundred dollars. It was ordered that this sum be allowed to the attorneys in full for their services, and the remainder of the claim disallowed. It was further ordered by the probate court that the administrator pay the sum so allowed to the attorneys for such services. From this judgment and order Royer & Spitler appealed to the court of common pleas.

Whether the action is appealable depends upon a construction of Section 11206, General Code. That section, so far as pertinent to the question under consideration, reads as follows:

“An appeal may be taken to the common pleas court by a person against whom it is made, or whom it affects, from any order, decision or judgment of the probate court in settling the accounts of an- executor, administrator, guardian and trustee, or of assignees, trustees or commissioners of insolvents.”

* The simple question under this section is whether the judgment of the probate court under review was one made in settling the accounts of the administrator of the estate of Emma R. Slusser. We do not regard as very material the precise steps taken in the probate court to procure an adjudication as to whether the claim should be allowed and added to the account of the administrator. The account as filed stated, in substance, that the administrator' was not advised as to its validity and for that reason he rejected' the same, and his statement naturally suggested to the probate court the necessity of a determination as to whether the claim was valid and whether the same should, or should not, be paid and entered in the account. The decision of the probate court amounted to a judgment and order that the claim was valid to the extent of four hundred dollars, and that the remaining part was excessive and should not be allowed. It would naturally follow that the administrator should pay the amount so adjudged and enter the amount so paid in his account, and, in this sense, a majority of the court are of the opinion that the judgment of the probate court was one made in settling the accounts of the administrator within the meaning of the section above cited, and that, therefore, the judgment was one from which an appeal could be taken.

We are the more convinced of the correctness of this conclusion, in view of the language of Section 10214, General Code, requiring that the provisions of the chapter embracing this section fixing the right of appeal, should be liberally construed in order to promote its object and assist the parties in obtaining justice.

It is manifest that if the administrator had allowed the claim and entered the same in his account, and the same had been approved by the probate court, parties who .were interested and prejudicially affected thereby would have the right of appeal. Under the statute the amount justly due to the attorneys for making a successful defense of the will would be, when allowed by tbe probate court, a portion of the legitimate expenses of administration, and the fixing of the amount is the settling of an item of the account. Thomas, Adm’x, v. Moore, 52 O. S., 200. See, also, McMahon, Adm’r, v. Ambach & Co. et al, 79 O. S., 103. A construction of the statute which would deny the right of appeal when the administrator rejects the claim and the probate judge, on the filing of the account, allows the same in part, would not be giving the statute a liberal construction and would not be assisting the parties in obtaining justice. On the contrary, it would in practice make the appealability depend in large part upon the position taken By the administrator with reference to the claim and the action taken thereafter by the probate judge.

For these reasons, the common pleas court erred in dismissing the'appeal, and that judgment will be reversed and the cause remanded to the court of common pleas for further proceedings.

Chittenden, J., concurs.

Kinkade, J.

(dissenting).

It is conceded by the plaintiffs in error that their right of appeal depends entirely upon Section 11206, General Code. To say that every order made by a probate judge with respect to the administration of an estate which involves the direction to the administrator to pay, or not to pay, money belonging to the estate, to any given party, is necessarily an order or decision made in the settling of the accounts of the administrator, as mentioned in Section 11206, seems to me a mere play on words.

The account of the administrator which the probate court settles is an account between the administrator and the heirs or legatees or devisees under the will, to whom the residue of the estate will pass after the expenses of administration are taken out, and the validity of a claim of a creditor against the assets of the estate, whose claim arose, as in this case, after the death of the testator, is in nowise affected by any order that the court may make with respect to the settling of the accounts of the administrator.

The situation is not helped out any by a reference to Section 10214, General Code, calling for a liberal construction of the provisions of the statutes in that subdivision, including Section 11206. The liberal construction called for is for the purpose of enabling the parties to secure justice, etc. It by no means follows that it will further the ends of justice to engraft upon the statute the right of appeal when it does not exist by virtue of the terms of the statute. The party desiring to appeal is not the only one that is to have justice by virtue of a liberal construction of the statute.

We come back to the point from which we started, to-wit: Section 11206 must, standing alone, determine whether the plaintiffs in error had a right to appeal. The papers before this court do not disclose what action, if any, has been taken with respect to the settling of the accounts of this administrator by the probate court, other than in so far as it is discoverable with respect to this particular item, by an inspection of the journal entry, in which the court allowed four hundred dollars on the two thousand dollar claim made by the plaintiffs in error. The plaintiffs in error elected, upon the refusal of the administrator to pay their claim, to go into the probate court with a petition and cite all parties to appear and there try out before the probate judge their right to have the full amount of their claim. 'The decision of the probate judge gave them four hundred instead of two thousand dollars. From this they undoubtedly could prosecute error, but it does not follow that they can also prosecute appeal.

I am clearly of the opinion that the trial judge was entirely correct in dismissing the appeal, and I think the action of the trial court should be affirmed.


text:
    DEFENSE OF STATUTE OF LIMITATIONS IN ACTION TO QUIET TITLE.
    Court of Appeals for Licking County.
    David Swisher v. Edward W. Swisher.
    Decided, October Term, 1916.

      Deeds Executed and Deposited for Safe-Keeping—Property Remains in Possession of the Grantor—Deeds Placed on Record by Custodian— Action by Grantor to Quiet Title.

    Where a property owner executes a deed and places it in the hands of a third party for safe-keeping, but retains possession of the property, and the custodian subsequently places the deed on record, the defense of the statute of limitations does not lie to an action by the grantor to quiet his title against the party named in the deed.

      J. M. Swartz, for plaintiff.
    W. D. Fulton and Powell & Powell, contra.
   Powell, J.

This case has been submitted to this court upon a demurrer to the second defense in the amended answer.

The basis of the action, as set forth in the petition, is to quiet the title to certain real estate claimed to be owned by the plaintiff herein.

The petition avers that plaintiff executed two deeds for certain real estate described therein, making the defendant, Edward W. Swisher, the grantee; that he placed said deeds in the iron safe of Dan S. Amback in the city of Columbus, Ohio, for safe-keeping, and that afterwards said Am'back, without any authority from plaintiff, and without his knowledge or consent, took both of said deeds from said safe and left them with the recorder of Licking county, Ohio, for record, and that they were recorded in the records of said recorder’s office in said Licking county, Ohio; that said deeds were never delivered by plaintiff to any one, nor were they intended to be delivered, and said premises were never legally conveyed to said Edward W. Swisher; that plaintiff has always been in possession of said premises, and now has full control over the same, and has spent large sums of money thereon for improvements, believing that he was still the owner thereof; that he has frequently demanded of the said defendant, Edward W. Swisher, to reconvey said premises to him, but he refused to do so, and the defendant claims to be the owner of same. 'The deeds were executed in 1894 and 1896 and were left for record by said Amback in May, 1897. The petition of plaintiff was filed August 11, 1914. Said petition prays that the claim of defendant iñ and to said premises be declared null and void and that said deeds be set aside and plaintiff’s title to said real estate be quieted, etc.

The second defense of the amended answer avers that plaintiff’s cause of action, as set out in his petition, did not accrue within four years prior to the commencement of said action and is, therefore, barred by the statute of limitations.

The demurrer to the second defense searches the record and, from an examination of the allegations in the petition, it will be observed that the defendant is not now and never was in possession of the premises in question. It will further be observed from the allegations in the petition that the defendant never had possession of said deeds and never had title to the real estate in question either actually or constructively and, never having had the title or possession of and to said premises, we do not understand how the defendant can properly claim that the statute of limitations has run against the plaintiff, because the defendant never having had either possession or title of and to said premises, so far as the averments in the petition disclose, it is not within the power, of the defendant to set up as a" proper defense the statute of limitations.

Upon the issue raised by the allegations of the petition and the defense of the statute of limitations, as set out in the second defense of the amended answer, we feel that the demurrer is well taken and should be sustained.

The demurrer is sustained. Exceptions.

Shields, J., and Houck, J., concur.


author: Richards, J.

text:
    PROSECUTION FOR. SELLING OBSCENE PHOTOGRAPHS.
    Court of Appeals for Huron County.
    Wilbur J. Charville v. State of Ohio.

    Decided, December 18, 1916.

      Criminal Law—Indictment Charging Sale of Lascivious Photograpns•— Should Give Some Description of the Photograph or Set Forth a Copy—But Omission so to Do Not Prejudicial Error.

    1. The rules of criminal practice require that an indictment charging the sale of an obscene, lewd and lascivious photograph should set forth a copy thereof, or give such a description as decency permits and aver that the photograph is too obscene for further description or recital.
    2. An indictment for this offense which does not give a copy of the obscene photograph, nor an excuse for its omission, is defective, but such defect is within the curative provisions of General Code, Section 13581, and a judgment of conviction will not be reversed where such defect does not prejudice the substantial rights of the defendant on the merits.

      A. M. Beattie, for plaintiff in error.

      Irving Carpenter, contra.

       Motion for leave to file petition in error overruled by the Supreme Court, January 30, 1917.

   Richards, J.

At the April term, 1916, Wilbur J. Charville was indicted by the grand jury of Huron county, the indictment containing two counts. The second count of this indictment charged him with unlawfully and knowingly having in his possession on March 15, 1916, for the purpose of selling, and with then selling to one Arthur 0. Link, eight obscene, lewd and lascivious photographs. The first count- of this indictment was the same as the second, except that the charge described the articles as pictures instead of photographs.

The defendant filed motions to quash the different counts of the indictment; and, on these motions being overruled, he excepted and filed demurrers to the several counts of the indictment, and, on these demurrers being overruled, he was placed on trial and was convicted under the second count of the indictment and sentenced thereunder. He now prosecutes error to this court, contending that the court erred in overruling the motions to quash the indictment, and likewise in overruling the demurrers thereto. No bill of exceptions was taken and the case is submitted to this court solely on the exceptions to the judgments rendered on the motions and demurrers as aforesaid.

It is claimed that the indictment is bad for duplicity, and because it fails to show how the articles mentioned were sold, and because it does not contain a copy of the photographs nor any facts showing that they were either obscene, lewd or lascivious.

We have no hesitancy in reaching a conclusion that the indictment is not objectionable on either of the first grounds stated. It is not justly subject to the charge of duplicity; nor is it lacking in certainty for failing to state in detail how the photographs were sold.

'The criticism on the indictment that it contains neither a copy of the photographs nor any averments showing how the same are obscene, lewd or lascivious, and no excuse for failing to make such an averment, is not so easily disposed of. It is quite true that the rules of pleading in criminal cases of this character justify omitting from indictments obscene allegations, but it appears to be equally true that the necessity for such omission should be set forth in the indictment in order to make the same technically in compliance with the law. If a copy of the photographs is not given, good pleading would require that such a description should be given as decency permits, and then the indictment should contain an averment that the photographs are too obscene or lewd or lascivious for further description or recital. This rule, in subtsantially this form, has been the almost uniform practice for many years in this country, and is stated so recently as 1913 in Section 496 of the edition of Bishop’s New Criminal Procedure then published. See also, 8 R. C. L., 317, Section 344. Occasionally here and there may be found a case which has broken over the rule as stated, but the great current of authority is in accordance with the principle announced.

It was under consideration by the Supreme Court in State of Ohio v. Zurhorst, 75 O. S., 232. The indictment in that case contained an averment that the printed matter was so indecent and immoral that it would be offensive to the court and improper to be placed upon the records thereof, and the indictment was sustained by the Supreme Court.

The indictment in the case at bar fails to contain any such averment. We must therefore reach the conclusion that it is defective and justly subject to the criticism made against it.

Having reached this conclusion, it does not necessarily follow that the judgment must be reversed and the defendant discharged. The records of the courts contain cases where violators of the criminal law have gone unwhipped of justice because of technicalities which in nowise affected the substantial merits of the case or resulted in prejudice to the defendant. To avoid this evil the General Assembly of Ohio, as early as 1869, in adopting the code of criminal procedure for the state, enacted in Section 90 thereof, as found in 66 O. L., 301, a provision intended to obviate the evil mentioned. This section as then enacted is substantially the same as is now know as General Code, Section 13581. It enumerates a large number of defects which shall not be deemed to make an indictment invalid, and contains in addition the general statement that the indictment shall not be held invalid “for other defects or imperfections which do not tend to prejudice the substantial rights of the defendant upon the merits.”

Therefore, even though the indictment is defective for the reason already stated, the question remains whether such defect is one which tends to prejudice the substantial rights of the defendant. No question is or could be made but that the indictment would be valid if it contained an averment that the obscene, lewd and lascivious photographs were too obscene to . set out' or to further describe. Is the omission of that averment in the indictment so prejudicial to the substantial rights of the defendant as to require -a judgment of reversal? We are unanimously of the opinion that it is not. If the averment were in the indictment, it necessarily would not advise the defendant of anything which he did not already know. 'The indictment mentions eight particular photographs which were obscene, lewd and lascivious and were on 'a specific day named sold by the defendant to Arthur C. Link. In view of the substantial sentence in this ease of a fine of one thousand dollars and imprisonment for not exceeding five years, it is evident that the trial court believed the photographs were of such a character as would have merited the averment.

The section of the General Code under consideration has been many times cited and construed. It will only be necessary to refer to one or two of the cases. In Lynch, v. State, 23 C.C. (N.S.), 230, the nature and character of the instrument with which the homicide was committed were not particularly described and it was held that this defect did not prejudice the substantial rights of the accused and did not invaliate the indictment.

In Tingue v. State, 90 O. S., 368, the section was quoted in full in the opinion of the court, the Supreme Court announcing in the syllabus that a mistrial should not be ordered simply because some error had intervened, but that the error, to justify such holding, must prejudicially affect the merits of the case and the substantial rights of the defendant.

Whether the substantial prejudice statute could be applied to a case where the indictment charges the use of obscene and licentious language and an infirmity exists therein similar to that in the case at bar, need not be determined. An indictment charging such offense without setting out the language and without giving an excuse for the omission, was held bad by the common pleas court in Hummel v. State, 8 N. P., 48; 10 O. D., 492, apparently without giving consideration to the section of the General Code to which reference has been made. The certainty and precision manifest in photographs and the uncertainty of the human memory in recalling oral statements are facts patent to all.

In view of the fact that no bill of exceptions was taken, an interesting question has arisen which we deem it unnecessary to decide, namely, whether the court might not be justified in assuming, in favor of the regularity of the judgment, that on the trial of the case the defendant himself may have made such admissions or statements, or offered such evidence, or permitted the state to prove, without objection, such matters as would have cured the defects in the indictment.

• We hold that'while good pleading would have required that the indictment contain a copy of the photographs, or such description of the same as decency would permit, or’an averment that the same were too obscene for recital, yet such failure was not in this ease prejudicial to the substantial rights of the defendant.

The judgment will therefore be affirmed.

Chittenden, J., and Kinkade, J., concur.