text:
    FAILURE TO ALLEGE CONSIDERATION.
    [Circuit Court of Hamilton County.]
    Kehm v. Insurance Company.
    Decided, December 8, 1903.

      Pleading—In an Action on a Policy of Fire Insurance—When Consideration for a Contract Must be Alleged,—Omission of Allegation in Amended Petition. ■

    In an action on a policy of fire insurance an amended petition which fails to allege any consideration for the contract is demurrable, notwithstanding the original petition supplied the omission.
    Swing, J.; Jelke, J., and Giefen, J., concur.
    This case is in this court on error to the judgment of the court of common pleas in sustaining a general demurrer to the amended petition of plaintiff. It is urged in this court that the demurrer was properly sustained for the reason that the amended petition does not allege any consideration for the contract which it is sought to have-reformed, and when reformed to have enforced. There is no consideration alleged in the amended petition.
    The authorities are numerous and uniform to the effect that a consideration must be alleged in actions founded on a contract except upon instruments under seal and negotiable promissory notes and bills of exchange, where by statute no consideration need be alleged (4 Ency. P. <&P. p. 928 and authorities therein cited.) But while not controverting this rule of law it is contended that an answer which was filed to the original pétition supplies this omission and should be considered by the court. This action was-originally brought on a policy of insurance. In this action the plaintiff alleged the payment of twenty-four dollars in cash and the giving of a note for one hundred and twenty dollars, and the issuance to him of a policy of insurance for $2,000, and the destruction of the property insured by fire; and he asked judgment for the amount insured.
    The defendant answered setting up an avoidance of the policy-by reason of procuring other .insurance without the consent of the insurer, Such proceedings were had, that the plaintiff found it necessary to file the amended petition, supra, asking for a reformation of the policy and when reformed for a judgment on it, thus changing the form of this action from one at law to one in equity, and to this amended petition the demurrer was sustained.
    It seems to us clear that all the court- could consider in passing on the demurrer to the amended petition was the demurrer and the amended petition. The original petition was out of the case and so was the answer to it. In the case of Raymond v. Railway Co. et al, 57 O. S., 271, the first proposition of the syllabus is as follows:
    “Under our system of pleading, a plaintiff may be permitted to substitute an amended petition in place of the original, which may have the effect to change the form of action from an equitable to a legal action, the basis and the ultimate object of the action remaining the same. And if such change is made the court in determining the issues to be tried will look wholly to the amended pleadings, disregarding the original and the cause will thereafter be treated as a suit at law and will proceed to trial and judgment as though it had been commenced as a legal action.”
    In the opinion of the court, at page 284, Judge Spear says:
    “But if the new pleading appears to have been filed not by way of addition merely to the original petition, and if it appears also to contain a full statement of the plaintiff’s case, being on its face a statement of an entire cause of action and in substance a substitute for the original, the filing of it by the plaintiff will be regarded as implying an abandonment by him of the case made in the original petition and any additions thereto, and as selecting this as the pleading on which he founds his suit, and the only petition which the court is to consider in determining the issues to be tried.”
    It seems to us that this case is in point, and is controlling on the question raised in the ease at bar. It is evident, therefore, that we can consider only the amended petition and the demurrer, and as there is no consideration alleged for the contract sought to be enforced, it is not enforceable. It follows from these conclusions that in our judgment the court properly sustained the demurrer. Whether it should have been sustained for other reasons or whether the court erred as a matter of law in sustaining it for other reasons, need not now be considered by this court.
    Judgment affirmed.

      Goebel & Bellinger, for plaintiff in error.

      John li. Sayler, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    JURISDICTION IN EQUITY.
    [Circuit Court of Hamilton County.]
    George G. Fleurot v. Clara B. Fletcher et al.

    Decided, March 2, 1903.

      Appeal—Equitable Jurisdiction—Right to have a Deed Declared a Mortgage, and the Transaction a Loan.

    Where it is sought to have a deed declared a mortgage and the mortgage foreclosed the action is purely equitable and an appeal will not lie.
    Swing, J.; J'elke, J., and Giffen, J., concur.
    The petition in this case alleged that plaintiff loaned defendants $15,000 for a term of three years, receiving as security a deed in fee simple to certain real estate, and giving a lease back to the defendants; that the said loan had not been repaid, and that the deed was in fact a mortgage; and praying for a foreclosure and sale of the said property.
    The motion to dismiss the appeal in this case should be overruled. Plaintiff’s cause of action is purely equitable. No right to a jury existed. The right to have the deed declared a mortgage and the right to have the transaction declared a loan for $15,000 was wholly within the jurisdiction of a court of equity, and could not be tried to a jury. Whether or not a case is appealable depends upon the relief sought, and here it is equitable.

      Drausin Wulsin and Ben B. Dale, for the motion.

      Maxwell & Bamsey, for the defendants.

       Affirmed by the Supreme Court .without report, 73 O. S., 381.


text:
    DAMAGES FOR FAILURE TO DRILL OIL WELLS.
    [Circuit Court of Wood County.]
    The Crown Oil Company v. Albert P. Probert.
    Decided, November 25, 1905.

      Lease—Of Oil and Gas Lands—Failure to Drill Agreed Number of Wells—Stipulated Damages—Option to Treat Lease as Abandoned —Penalty.

    1. Tbe provision in an oil lease that “in case no well is completed within ninety days from this date then this lease shall be null and void,” does not give to the lessee the option of treating the lease as null and void and abandoned, and thereby exonerate himself from liability under a stipulation to pay in default of drilling a second and third well.
    2. The provision that after the completion of the first well “the second party shall drill two additional wells at intervals of ninety days, and upon failure to drill said wells or any one of them, it (the lessee, shall forfeit and pay to said first party the sum of one hundred dollars for each well not drilled,” does not provide a penalty, but is a provision for stipulated damages.
    Parker, J.; Haynes, J., and Wildman, J., concur.
    This action was brought in the court of common pleas by Albert B. Probert against the Crown Oil Company to recover certain sums of money which he alleges were due to him and which he claims upon a certain oil lease, between the parties, Probert being the lessor and the Crown Oil Company the lessee.
    The petition sets forth that this lease was executed on the 23d of July, 1903, and covered a certain eighty acres of land in this county, and contains the averment that the defendant under and by virtue of the terms of said lease was required to drill a well upon said premises within ninety days from the execution of said lease, and two additional wells at intervals of ninety days apart from the completion of said first well. It was further stipulated and agreed therein that if the defendant should fail to drill said wells or either of them the defendant should forfeit and pay to plaintiff the sum of one hundred dollars for each well not drilled, It is also averred that there was a certain stipulation in the lease which required the lessee to free the property of a certain lien, and the third cause of action is based upon the alleged default of the defendant below with respect to that stipulation. Such action was taken in the court below with respect to that cause of action, that no question is presented to this court upon* it.
    It is averred that this first well was drilled in due time, and the first cause of action is a claim for one hundred dollars on account of the default of the defendant with respect to drilling the second well. The second cause of action is a like claim for a like amount with respect to the alleged default of the defendant in drilling the third well. The petition sets forth a copy of the lease. A demurrer to the petition was overruled and thereupon the defendant took leave to answer, and the answer is as follows:
    “The defendant admits its corporate existence, the execution and delivery of the lease by plaintiff, as alleged in the petition, and denies all the other allegations in the petition contained. Defendant says that it entered on said premises and drilled and completed one well within the time specified in the lease for the completion of a well, and that said well did not produce oil or gas in any quantity, and thereupon the defendant abandoned said premises by pulling the easing and all pipe and fixtures and removed them from the premises described in said lease, and offered to surrender the lease to said plaintiff. Defendant further says that the amounts sued for in the first two causes of action, by plaintiff, was intended as and for a penalty to insure the fulfillment of the terms of said lease, and was in nowise intended as and for any part of the consideration for said lease? Defendant further says that there was no consideration for the promise mentioned in said causes of action of plaintiff. Wherefore, defendant prays that it may go hence and recover its costs herein expended.”
    No reply was filed and the case was submitted to the court below upon the motion of the plaintiff for judgment upon the pleadings. It will be observed by the first clause of the answer that all other allegations of the petition excepting those with respect to the corporate capacity of defendant and the execution and delivery of the lease are denied, and yet by subsequent allegation, all the other material allegations of the petition ap» pear to be admitted, so that tbe case stands practically upon tbe petition with the additional allegations in the answer that after the drilling of the first well the defendant abandoned the premises, and the allegation that these stipulated amounts to be paid upon default of the drilling of .the second and third wells were intended as and for a penalty to insure the fulfillment of the terms of the lease. This last allegation of course is not an allegation of a matter of fact.
    There is no allegation of any mistake in the terms of the lease; no effort to have the lease reformed, and the intent of the parties is to be determined from the instrument. The lease stipulates “that for the receipt of one dollar, the receipt of which is hereby acknowledged, and also for the consideration of the covenant hereinafter mentioned, has granted, demised and let unto the said party of the second part,” the oil company, and then follows a description of the premises and the terms of the lease, which I need not read as a particular clause in controversy here. Then the lease contains this provision: “In case no well is completed within ninety days from this date (unavoidable accident and delays excepted), then this lease shall be null and void.” That is the only stipulation we find in 'the lease, the non-performance of which shall result in rendering the lease null and void. That stipulation was complied with. The well was drilled. Further on in the instrument we find this:
    “It is further' agreed that after the completion of the well, second party shall drill two additional wells at intervals of ninety days, and upon a failure to drill said wells or any of them, it shall forfeit and pay to said first party the sum of one hundred dollars for each well not drilled.”
    As we understand the argument of plaintiff in error based upon the answer that this lease was abandoned, it is the contention of counsel that they might abandon the lease and thereby exonerate the lessee from all liability under the clause of the requirement that it shall drill or pay upon default of drilling, and counsel seems to base his contention upon the ease of Kelly v. Van Ellen, 66 O. S., 605. But that lease was materially different from this one at bar. It contained this stipulation:

      “In case no well is completed within thirty days from this date then this grant shall become null and void unless second party shall pay the first party thirty dollars each and every month in advance while such completion is delayed.”
    That stipulation is similar to the one contained in the lease at bar with respect to the first well to be drilled, but there is no such stipulation in this lease with respect to subsequent wells.
    With respect to this stipulation it was held in the Van Etten case that this did not constitute a promise or obligation to pay rental, and it was held further that the lessee had the option to complete wells or pay rentals to keep the lease alive; and that • upon breach of the agreement to complete wells, no action would lie for the recovery of rentals. And on page 611, Judge Burket, delivering the opinion of the court, distinguishes it from the case of Woodland Oil Company v. Crawford, 55 Ohio-St., 161; pointing out, “that in that ca^e the lessee agreed to drill cem tain wells and, upon failure, to pay certain rentals, and it was held that the lessor might elect to enforce the contract to drill, or waive that and enforce the. promise to pay rental. There the option was with the lessor. Here, as there is no promise to pay rental, the option is with the lessee, either to 'drill or pay rental to keep his lease alive, and failing in both, the lease becomes null and void, with an option however in the lessor to treat it as void, or to sue for damages for breach of the contract to complete the wells as specified in the lease,” his right being for damages rather than for rental.
    The lease in the case at bar is also materially different from that which the court had under consideration in the case of the Woodland Oil Company. Neither of these cases seem to be of very great value in considering the question which we have submitted to us here. It is sufficient to say that there is no option in the lessee to regard this lease as null and void and abandon it, and thereby exonerate it from liability under this stipulation to pay in default of drilling the second and third well.
    The only question remaining, or the only one that it seems to us requires much consideration, is that suggested as to the effect of this stipulation; whether it is a stipulation to pay stipulated damages on account of this default or a stipulation for a penalty, and determine that we must look to the instrument, and we may consider what is universally known respecting the business that is contemplated, the action, operation, and probable, results of it. Certain rules upon the subject which we think sufficient for the purpose here are very well and very tersely stated in the 19 Am. & Eng. Ency. of Law. The subject is taken up at page 395. I shall read from the text at pages 389, 399, and especially from pages 401 and 402. It is upon the subject of construction of contracts in case of doubt, and I may say that it is our opinion that there could be no1 doubt about the intent here to make this stipulated damages, were it not for the phrase “forfeit and pay.” .Had the word “forfeit” been omitted, we would have had no doubt about it. The text reads:
    “1. [General Bule.] A frequent statement by the authorities is that the true solution of the whole question of liquidated damages as distinguished from penalty is to be found in the intent of the contracting parties, to arrive at which it is proper to consider the instrument as a whole, the situation of the parties, the subject-mater of the contract, and all the circumstances surrounding its execution. And in addition to this, it has been held to be permissible to prove the value of the property that a party has contracted to convey or deliver, if the contract is of such a nature, as well as the consideration moving from the other party therefor, as a criteria to aid in ascertaining whether a sum to be paid on default is a penalty or liquidated damages.
    “2. -[Qualifications of the General Bule.] The doctrine that the intent of the parties to the contract, when ascertained, controls its construction as to the provision for liquidated damages or penalty, can not be accepted without qualification.
    “The intent of the parties will not be regarded, if illegal, in its. object, nor will it be effectual if the result would be manifestly to disregard the rule of compensation as damages for the breach o.f the contract. Again, if the contract was for the payment of money, no stipulation of the parties' will be. allowed to supersede the measure of damages established by law for the breach of contracts to pay money, namely, legal interest. ■
    “6. [Language Not Conclusive.] No rule as to distinguishing between liquidated damages and penalties is better settled that that the language of the parties to the contract and the terms employed descriptive of the amount to be paid are not con-elusive of the interpretation and legal effect. Thus a sum denominated ‘liquidated damages’ by the parties, may nevertheless be held to be a penalty, and though the word ‘penalty’ be used, the sum so termed may be deemed liquidated damages. Where, however, the term ‘penalty’ is employed, the doctrine of some eases is that it is to be regarded as more nearly conclusive of the intent of the parties than in the opposite case where the language is ‘liquidated damages.’
    “To the use of the terms ‘forfeit,’ ‘forfeiture,’ or ‘forfeit and pay,’ no very uniform meaning has been ascribed. In some cases such terms have been held to import a penalty, in others liquidated damages. The true rule is that the. construction to be given to such phraseology will depend upon its connection with the other parts of the instrument, in the light of all the surrounding circumstances.
    “One of the most universally recognized indications that a penalty was intended, and not a mere liquidation of the damages, is that the actual damages on a breach of the contract would be readily ascertainable. Or perhaps the proposition more accurately stated is that this consideration is frequently determinative of the construction which the courts will adopt, irrespective of the intent of the parties.
    “Where the contract is of such a nature that the actual damages on a breach would not be readily proved and recovered as such, the courts incline strongly to the view that a sum named therein was intended as a liquidation of the damages of the parties. It has been held indeed, that the only cases in which the courts will carry into effect an agreement to pay a fixed and stipulated amount of damages are those of such nature that the damages resulting from a breach are not regulated with certainty by any rule of law and can not be readily ascertained by a jury. In proportion therefore, as the difficulty of ascertaining the actual damages by proof is greater or less where this difficulty grows out of the nature of such damages, in like proportion is the presumption more or less strong that the parties intended to fix the amount as liquidated damages.”
    Now that is a general statement of the rule. There are a great many authorities and a great many illustrations cited, but as I say, in this case we believe we have a right to consider what we know about fihe business of producing oil; what is universally known. This oil and gas lease was given in order that the lessor might derive the profits of the royalty stipulated for. In lieu of the royalty in the event that the wells are not drilled, he is to have a hundred dollars for each well. The amount does not suggest a penalty, and that fact taken in connection with the other fact that the damages resulting from a failure to comply are not usually ascertainable, indeed, it may be said, I think, can be scarcely ascertained at all with any degree of certainty, it would be mere guess work to fix the damages; and in view of these things we regard the amount so referred to by the parties and upheld by the court, to be stipulated damages, and holding this view,, we affirm' the judgment of the court below.

      Earl D. Bloom, for plaintiff in error.

      Baldwin & Harrington, for defendant in error.


text:
    FINAL ORDER IN AN ACTION TO ASSESS STOCKHOLDERS’ LIABILITY.
    [Circuit Court of Franklin County.]
    F. M. Marriott (consolidated) v. The C., S. & H. R. R. Co.
    Decided, June, 1906.

      Appeal—Action to Enforce Stockholders’ Liability—Determination as to Some of the Stockholders—Not a Final Order—Jurisdiction by Consent.

    An order made in the common pleas court in an action to enforce stockholders’ liability, which determines the liability of some but not of all the defendant stockholders, is interlocutory and not appealable.
    Dustin, J.; Sullivan, J., and Wilson, J., concur.
    Upon a discussion of the form of entry to be made herein (based upon a former opinion of the court) it was suggested for the first time that the issues as to certain parties herein (alleged stockholders) had not been determined by the common pleas court, but had been expressly reserved.
    The attention of the court had not previously been called to that fact, either in brief or oral argument, or by any of the numerous counsel engaged in the case; nor had it been observed by the court.

      It presented at once an embarrassment to the final settlement of the case, which the court suggested might possibly be remedied by a unanimous consent that such issues be considered and disposed of by this court, before final judgment upon the whole case.
    Unanimous consent could not be obtained to that plan; and the court, on reflection, is of the opinion, that even by unanimous agreement, such issues could not legally have been brought into this court, without a previous determination! of the court below.
    We are brought, therefore, face to face with the very serious question as to whether this court has any jurisdiction at all, in view of the failure of the lower court to determine whether certain parties were liable or not as stockholders.
    Upon the theory that the case is inseparable so far as determinating the ratable liability is concerned, we held that the appeal of one party brought up the whole case.
    Conversely, is it not true, that the failure of the trial court to pass upon the liability of one party prevents an appeal by the remainder ?
    There can be no final judgment rendered until all the issues as to liability are determined; because the determination of any one of them would either increase or dimmish the pro rata liability of the remaining stockholders.
    We are of the opinion, therefore, that the order of the common pleas court of July, 1905, was interlocutory and not final. Bank v. Walters, 1 O. S., 201.
    The Supreme Court, in the case of Mason v. Alexander, 44 0. S., 335, makes a very proper distinction between cases where the debts of the corporation undoubtedly exceed the liability of all the stockholders, and eases where a partial assessment, only, is necessary. Spear, J., says:
    1 ‘ The position would be different if it were necessary to order contribution, an adjustment of equities, and an equalization of burdens among stockholders. But that necessity, we have found does not exist here. The liability of no stockholder, against whom a judgment was rendered, could possibly be increased of diminished by the disposition of the issues to be determined later. The debt of the corporation,, as found by both referees, arid not disputed, far exceeded the capital stock. So that, in any possible event, every stockholder that could be holden at all was liable for an amount equal to his stock. ’ ’
    In our former opinion, we referred to the liability of the stockholders for the face value of their stock, but did not say that we would render judgment for that amount.
    We preferred' to consider further the question of amount, especially as to the margin to be allowed to cover costs (including counsel fees) and the various contingencies liable to happen before final settlement.
    Under the findings of the master, there seems to be no necessity, even to cover contingencies, to render judgment for one hundred per cent. Therefore, the holding in Mason v. Alexander does not come to our relief. The case being undisposed of, in vital respects, in the common pleas court, is not appealable and we have no jurisdiction.
    The suggestion of certain counsel, that creditors will waive, so far as the remaining parties are concerned, the proportionate liability of those whose issues were undisposed of below, does not relieve the situation. The old proposition that consent can not give jurisdiction, arises. The order, we must find, was interlocutory and not final.
    The question as to fees of counsel, therefore, is not before us. Nor is it necessary to indicate our views as to the full amount of the judgment to be rendered, to pay which an assessment of only twenty-five per cent, of the stock seems to be at present required.
    The appeals will be dismissed.

      Stewart & Rector, for plaintiff.

      W. 0. Henderson et al, for defendants.


text:
    REMOVAL OF GUARDIAN.
    [Circuit Court of Lorain County.]
    In Re Guardianship of James Edward Murray.

    Decided, September 28, 1906.

      Appeal—From Refusal to Remove a Guardian for'Lacle of Jurisdiction to Malee the Appointment—Standing of an Uncle in Such a Proceeding—Domicile of Minor Determined, How—Meaning of the Word “Resident” as Used in Section 6254.
    1. The interest of an uncle in the welfare of a minor nephew gives him standing in a proceeding for the appointment of a guardian for the minor.
    2. Conversely, a motion by an uncle for the removal of a guardian on the ground of lack of jurisdiction to make the appointment sufficiently challenges such jurisdiction, and such a step being equally a special proceeding with that of making the appointment, carries the right of appeal to the common pleas on the overruling of the motion.
    3. Inasmuch as the grandparents of this minor stood in the relation of parent to him, the residence of the grandparents is his residence, and jurisdiction to appoint a guardian is in the probate court of the county of their residence.
    Marvin, J.; Winch, J., and Henry, J., concur.
    James Edward Murray is an infant, now about seven years of age. His fatlier was Patrick J. Murray. His mother’s maiden name was Moroney. Both are now dead.
    At one time these people lived in Athens county in this state. James Edward was born there. Mrs. Murray was threatened with or attacked with pulmonary disease, on account of which they broke up their home at Athens in the fall of 1903, selling a part of their goods and storing the remainder, and went to the state of Texas. After remaining in that state for a few months, until probably March or April, 1904, Mrs. Murray not getting better, they returned to Ohio, stopping for a few weeks with Mrs. Murray’s sister, at Toledo, and then in May, 1904, going to the home of Patrick’s parents in Wakeman, TInron county, Ohio. The goods which Patrick had left in Athens, he had shipped to him at Wakeman.
    The entire family, that is, Patrick, his wife and the child, James Edward Murray, remained at the home of Patrick’s father in Wakeman, until the 11th of July, 1904, when Mrs. Murray died. Patrick and the child continued at the home and in the family of Patrick’s parents until he—Patrick—died there on the 24th day of November, 1904; thereafter, the child remained with his paternal grandparents until the 28th or 29th day of the same month, when, with the approval and consent of his grandparents, at least with such approval and consent given by the grandmother and without objection on the part of the grandfather, said infant was brought from Wakeman by Katherine Loveland, a sister of his deceased father, to her home in Lorain county.
    On the 9th of December, 1904, this aunt made application to the probate court of said last named county for appointment as guardian of said infant; said application was granted and she was appointed by said court as such guardian on said last named date.
    Said infant was not the owner of any property. The only duty imposed upon the guardian by such appointment was the care and custody of his person.
    On the 12th day of January, 1905, J. J. Moroney, a brother of the infant’s deceased mother, made a motion in said probate court to have said guardian removed on the ground that said infant ’was not a resident of Lorain county at the time of such, appointment, and that therefore the court was without jurisdiction to make the appointment.
    Upon hearing, the eoui’t overruled said motion, whereupon said Moroney appealed to the court of common pleas. Upon trial in said last named court, said motion was sustained and 'said guardian was removed; the court holding that said infant was not, at the time of the appointment, a resident of said Loraiu county
    By proper proceedings the ease is in this court on error to the order of the court of common pleas. Some question is made by the defendant in error, that said Moroney is entitled to no standing in court. This does not seem to be well taken. He is an uncle of the infant, and ought to be interested in his welfare.
    If this was a civil action perhaps the way for him to have proceeded would have been to have 'made the motion in the name of the infant, the uncle appearing as his next friend; but it would seem that if the court was without jurisdiction to make the appointment, and attention was called to such want of jurisdiction by motion of one acting in good faith, and having the interest which an uncle might properly have in the welfare of the infant, the motion should be heard by the court, and if judgment should be against the party filing the motion, taxing the costs against him, his interest in the case would be sufficient to entitle him to appeal. Revised Statutes, 6407 provides that “Appeals may be taken to the court of common pleas from * * * an order removing or refusing to remove an executor, administrator, guardian or other officer appointed by the probate court. ’ ’
    In the case In re Johnson, decided by the Supreme Court of Iowa, reported in 54 N. E., page 69, one Sturges filed his petition to be appointed guardian of a female minor born to him, but who had, by legal adoption, become the daughter of Mr. and Mrs. Johnson, both of whom had died. One D. W. Diggs filed a remonstrance to the making of the appointment, setting up that he was, by will of the adopting father, Johnson, made testamentary guardian of the person and property of the minor; that said will had been duly probated, and that he was acting as guardian of the child and then had her at his home. A motion was made to strike this remonstrance from the files; this motion was sustained, and said Sturges was appointed; from this order Diggs appealed; Sturges moved to dismiss the appeal and the court says in reference to said last named motion:
    “Appellant moves to dismiss the appeal upon the grounds that appellee, Diggs, is not a party to the proceedings; is not interested therein; that no judgment has 'been entered against him, nor that affects any substantial right of his, in such manner as to entitle him to appeal. It requires no citations to show that in the appointment of guardians the controlling consideration is the welfare of the ward. It is a special proceeding to make an appointment to which no person has a private right.”

      And the court held that Diggs had a right to be heard, and overruled the motion to dismiss the appeal. ' Certainly the proceeding to remove a guardian is equally a special proceeding with that of making the appointment. This proceeding was instituted by a,near relative of the infant. It challenged the jprisdietion of the court in making,the appointment, and it was proper that this motion should be heard and determined by that court, and it seems clear that the party defeated was entitled to appeal to the common pleas court.
    The question then remains whether the court erred in holding that said infant was not a resident of Lorain county at the time the appointment was made, as the word “resident” is used in Section 6254, Revised Statutes.
    After a careful examination of the question the conclusion is reached that there was no error in the judgment of the court of common pleas. The carefully prepared opinion of Judge Washburn in this case, published in 4 N. P.—N. S., 233, expresses our views o£ 'the law in the case, and is so exhaustive as to render it unnecessary to discuss to any considerable extent the questions there discussed.
    Ths conclusion, on the part of two members of the court, is at variance with their views when the consideration of this case was first taken up. We have the feeling expressed by the judge of the common pleas, that it is unfortunate that this guardian should have to be removed, but the law seems to require it. And since as both this court and the court of common pleas hold that the residence of this child is in Huron county, the probate court of that county can, and doubtless will, upon proper application being made, appoint a suitable guardian for the child, whether it be the one appointed here or some other person; but from the evidence in the case, it seems altogether probable that the Probate Court of Huron County will appoint, on proper application, the same guardian that was appointed in this county.
    The order of the common pleas is affirmed.

      G. A. Rcselc, Clayton Chapman and P. II. Moroney, for plaintiff.

      E. G. <& H. C. Johnson and Lee Stroup, for defendant.

       Affirming Re Guardianship of James Edward Murray, 4 N. P.— N. S.. 233.


text:
    VALUATION OF LOTS IN A NEW SUBDIVISION.
    [Circuit Court of Hamilton County.]
    Francis C. Davis et al v. The Commissioners of Hamilton County, Ohio.
    Decided, June 11, 1904.

      Taxation—Application for Refunder—Authority of Assessor—In Fixing Tax Value of Lots in a Rew°Subdivision—Errors, Fundamental and Clerical—Remedy of Property Owner—Sections 1038 and 2797.
    1. The amendment to Section 2797, relating to plats of new towns or subdivisions presented to the county auditor for assessment, does not deprive the assessor of authority to assess and return the true valuation of each lot of a newly platted subdivision, but merely prescribes the rule which govern him in making such valuation.
    2. Where it appears that the assessor acted within the scope of his authority in making his return as to the lots in such a subdivision, but did not equalize his valuations with those of adjacent lots and lands as made by the last decennial appraisement, the error is fundamental and not clerical, and the appeal of the property owner for redress should be to the annual board of city equalization.
    Giffen, J.; Jelke, P. J., and Swing, J., concur.
    The original application was made to the county commissioners for a refunder of taxes, under Section 1038, Revised Statutes.
    In the year 1890, the plaintiffs in error were the owners of a tract of land comprising about three acres, which was valued under the decennial appraisement, at $4,480. In November, 1891, it was subdivided into thirty-nine lots, which the annual assessor returned at a valuation aggregating the sum of $24,200. It appearing afterwards that the assessor had, by mistake, returned a valuation price as great as intended, it was thereupon reduced to $12,100.
    The claim made before the commissioners was that under Section 2797, Revised Statutes, the assessor was authorized only to apportion the decennial valuation to the several lots into which the land had been sub-divided. The claim was rejected by the commissioners, and upon appeal to the common pleas court, a like judgment was rendered, together with separate findings of fact and conclusions of law. If the contention of counsel that the assessor has no authority to return the valuation upon the lots in excess of the decennial valuation upon the land be true, then the return would undoubtedly be such as the auditor may correct, or call the attention of the commissioners to. Section 2797 provides as follows:
    “Whenever any person, or persons, shall lay out any town or any addition to any town, he or they shall, before the plat thereof is recorded, present the same to the county auditor, who shall cause the assessor of the proper locality to assess and return the true valuation of each lot or parcel of land described in such plat, in the same manner as new structures are valued; and thereupon such loss or parcels shall be entered on the tax list in lieu of the land included therein; but in making such valuation, regard shall be had to the next preceding decennial valuation of real estate, so that the said lots shall, as near as practicable, be equalized with adjacent lands and lots according to such decennial valuation.”
    This provision was first enacted April 6, 1866, “to provide for the valuation of lands in new town plats or additions thereto,” and was construed in the case of Mitchell & Watson v. The Treasurer of Franklin County, 25 O. S., page 143. The second proposition of the syllabus is as follows:
    “This act should be considered and construed in connection with other statutes, in pari materia; and when so considered and construed, its operation does not conflict with the provisions • of the second section of the twelfth article of the Constitution.”
    And at page 158, the court say:
    “If inequality, however, does, in fact, exist—if the plaintiff’s property is placed on the duplicate for taxation at a higher valuation than other city property of the same cash value, or higher than its true value in money, ample provision is made by statute for their relief. It is their right and privilege to complain to the annual city board of equalization for redress, and it is the duty of the board to grant them relief. Until, therefore, they exhaust the remedy thus provided by statute, a court of equity should not interfere, in their behalf, by enjoining the collection of the tax.”

      This ease clearly recognizes the authority of th© annual assessor to return the valuation of a new subdivision in an amount greater than the decennial value of the land. But counsel urged, that in order to overcome the effect of this decision, the act was so amended, by the revision of the statutes, as to provide that in making such valuation, regard shall be had to the next preceding decennial valuation of real estate, so that the city lots shall, as nearly as practicable, be equalized with adjacent lands and lots according to such decennial valuation. Such revision, however, does not change the power or authority of the assessor to assess and return the true valuation of each lot, but merely prescribes the rule which shall govern the assessor in the making of such valuation. If it were intended that the assessor should only apportion the valuation of the land to the several lots into which the tract has been subdivided, there would be no occasion ■to provide for the assessing and returning of a true valuation, prescribing any rule whereby it should be done. The provision that the assessor shall assess and return the true valuation of each lot, shows that he is to exercise his judgment in arriving at such valuation, and to aid him in arriving at a correct conclusion, as well as equalize said lots with adjacent lands and lots, he is directed to have regard to the next preceding decennial valuation of real estate. The findings of fact show that the valuation of these lots were not equalized with adjacent lands and lots, but the assessor was acting within the scope of his authority, and the error was fundamental and not clerical. The plaintiffs in error were not without remedy, but could have appealed to the annual city board of equalization for redress.
    Judgment affirmed.


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    UNREASONABLE LICENSE FEES.
    [Circuit Court of Hamilton County.]
    John C. Uhrlaub v. The City of Cincinnati et al.

    Decided, June 12, 1903.

      Restraint of Trade—By Imposition of Unreasonable License Fee— Ordinance Requiring Fee from Transient Dealers—Injunction.

    An ordinance which imposes a license fee of $300 on temporary stores and transient dealers is invalid, because prohibitive as to some classes, unreasonable as to others, and in restraint of trade.
    It is agreed by counsel for the city and counsel for the plaintiff that the following additional facts are admitted to be true, and are to be taken as a part of the record in this case, to-wit:
    1st. That the plaintiff in this ease was a temporary and transient dealer within the meaning of the statute and ordinance in question in this case, and further, that the plaintiff brought his stock of goods from New York to the city of Cincinnati for the express purpose of opening a temporary store for the sale of the same in the city of Cincinnati, and that he did open said store for the aforesaid purpose.
    2d. It is further admitted that the auctioneer engaged by the plaintiff to sell at auction the goods of the plaintiff in the store opened by the plaintiff, had paid the license fee, and had obtained a license from the city of Cincinnati to act as auctioneer’, and that the city of Cincinnati required the plaintiff to take out a further license for the privilege of opening a “temporary store.”
    3d. That the goods which ai-e described -in the petition of the plaintiff, and which were offered for sale by the plaintiff, as described in the petition, were not in the original packages in which they had been brought from New York to the city of Cincinnati, but that said original packages were broken, and the articles contained in said original packages were taken therefrom, and offered for sale separately.

      Brief of Kramer & Kramer for the plaintiff.
    Our contentions are, as follows:
    First. The ordinance, on its face, unjustly discriminates between men in the same business, i. e., for illustration, from the seller of rugs a license fee is exacted, while the seller of agricultural articles in a transient store, goes scot free. The seller of boots and shoes is taxed $300, while he who sells the same articles (using his temporary store to exhibit the samples) is exempt.
    Judge Spear said, in State v. Gardiner, 58 O. S., page 610:
    “Our Bill of Rights prohibits the granting of privileges to one which are denied to others of the same class, and the imposition of restrictions or burdens upon certain citizens, from which others of the same class are exempt. A statute, therefore, which imposes special restrictions or burdens, or grants special privileges under the same circumstances can not be sustained, because it is in contravention of the equal rights guaranteed by the Constitution. The constitutional objection to this statute is that it operates unequally. It imposes the burden of examination and license fee upon certain persons, and exempts others of the same class pursuing the same business in the same way.” See, also, Sipe v. Murphy, 49 O. S., 536.
    Second. Our adversaries seek to sustain this ordinance on the plea that it is a valid exercise of the police power. Many ordinances are sustained under this great blanket power and many hardships have been wrought by a misapplication of the same. It will be noted, however, that the exercise of this power must be reasonable and undiscriminating. If, in the exercise of that power, partiality is evident, or if it savors of class legislation, such exercise is invalid and reprehensible, as is attested literally by thousands of decisions.
    We can not do better than quote Volume 22 of the A. & E. Ene. of L., p. 938:
    “In order that a statute or ordinance may be sustained as an exercise -of police power, the courts must be able to see (1), that the enactment has for its object the prevention of some offense of manifest evil or the preservation of the public health, safety, morals, or general welfare; and (2), that there is some clear, real, and substantial connection between the as-ginned purpose qf the enactment- and the qctual provision^ thereof, and that the latter do in some plain, appreciable and appropriate manner tend toward the accomplishment of the object for which the power is exercised. The police power can not be used as a cloak for the invasion of personal rights or private property, neither can it be exercised for private purposes, or for the exclusive benefit of particular individuals or classes. ’ ’
    Many authorities are referred to/in support of this text; but it is needless to elaborate upon them here. "We quote a few as follows: 108 Cal., 326; 16 Pick. (Mass.), 126; 80 Minn., 58; 109 N. Y., 389; 8 C. C., 665.
    Third. The court will scrutinize this exercise of the police-power with care, for it is the exercise of a purely delegated power by a municipality. Unless such exercise is carefully supervised any constitutional property right may be invaded under the guise of city ordinance, claimed to be passed in the exercise of the police power.
    Fourth. The pretended evils of transient stores can be conjured up only by a fanciful imagination. It is because of these imaginary evils that it is attempted t.o deprive the public of a species of healthy competition.
    Moreover the ordinance itself is indefinite. It does not define a transient dealer.
    Fifth. Therefore it is conceded by counsel for the city that the ordinance applies to any person or company which has a regular established business in the city, and opens temporarily another or other places in the city for the temporary sale of its goods in other localities. Therefore, .if John Shillito & Co. should open temporarily another store for the sale of some of its goods, they would have to pay this license fee or tax of $300. If such would occur, it seems there could be no question but what John Shillito & Co. would in a similar suit as this be relieved on the ground of unreasonableness and discrimination; for while they would be so required, the other houses who would not so temporarily open stores or other places would not be the subject of such an imposition. Who can say if a person opens a store, or other place in a city when he begins business, $90S po^ intend to perpipneptly garry $ gp, He, ©ay possibly intend to remain a short time, a few days, but finds the business justifies a permanent continuance, yet he must pay his $300 before he concludes what he will eventually do; so that under this ordinance the authorities determine in advance whether the party is going to remain a short or long time. The ordinance is therefore arbitrary and unreasonable.
    Sixth. The ordinance is unreasonable and in restraint of trade, as it purports to charge a party nothing if he stays a long while, and a heavy tax if he remains a short time. If he remains a day to sell, or two or three days, he must still pay his $300. It is therefore also' in restraint of trade and void for that reason, for it deprives the community of the benefit of competition.
    Seventh. The act under which this authority is assumed is unconstitutional, for it is in violation of Section 8, Article I, and Section 2, Article IV of the Federal Constitution, and in conflict with Section 2 of Article XII of the Constitution of Ohio.
    It seems to us that some sinister influence and purpose was behind this ordinance and ordinances of this character, and the court should put the seal of condemnation upon them.
    Giffen, P. J.; Swing, J., concurs.
    The ordinance involved in this case is unreasonable, unjust and practically prohibitive in fixing the fee for maintaining a temporary store at the sum of $300, regardless of the amount of goods offered for sale, and of the length of time the business is to be carried on. If the value of the goods is $300 or less, the collection of the prescribed license fee in effect confiscates the goods, and, if the licensee wishes to operate a store for one day only he is charged the same fee as one who desires to maintain it' for the period of a week, a month, or a year.
    The amount of goods on hand, and the success of the venture are both' important factors in determining the length of time that.the store would be kept open. A ready sale of all the goods might terminate the enterprise, or on the other hand, induce the proprietor to purchase other goods and continue it indefinitely. A merchant could • rarely afford to pay the sum of $300 for the privilege of opening a temporary store, and hence this provision of the ordinance operates in restraint of trade. • For these reasons we hold the' ordinance to be invalid, and reverse the judgment of the common pleas court.

      Kramer & Kramer, for plaintiff.

      Albert H. Morrill, contra.

       Affirmed by the Supreme Court without report, May 31, 1905.


text:
    DANGER. TO CHILDREN FROM MAINTENANCE OF A BODY OF WATER.
    [Circuit Court of Summit County.]
    The Akron Water Works Company v. Hiram S. Swartz.
    Decided, October 12, 1906.

      Bills of Exceptions—Irregularities in Preparation of—iNot Jurisdictional, When—Negligence—Child Droioned in a Reservoir—Mere Existence of a Body of Water—Not Within the Rule of the Torpedo Cases—Trespassers and Licensees—Error Proceedings.

    1. In an error proceeding the adverse party is entitled to ten full days for the filing of objections to the bill of exceptions, and the transmission of the bill and the receiving of by the trial judge on the tenth day after notice of its filing is premature; but where this abridgment of the rights of the defendant in error is a matter for which the clerk of court is responsible, and for which the plaintiff in error is in no way chargeable, and it is not shown that the bill was open to any objection or amendment, such an irregularity in the intermediate steps is not jurisdictional.
    2. The proprietor of a body of water so situated as to present no circumstances specially enticing or hazardous to children, whereby they are led by their infantile instincts to incur the danger of drowning, is under no higher duty to infant trespassers or licensees than to adults.
    PIenry, J.; Marvin, J., and Winch, J., concur.
    Error to the Court of Common Pleas of Summit County.
    This was an action for death by wrongful act, begun August 1, 1903, by Hiram S. Swartz as administrator of the estate of Claribel Georgia Bush, a child of nine years, who was drowned May 23, 1903, in a reservoir of the Akron Water Works Company, in the outskirts of the city of Akron. The plaintiff below* reeovered a verdict of $1,100, December 12, 1905, whereon judgment was rendered January 8, 1906. The defendant below filed its bill of exceptions February 16, 1906, and notice thereof was mailed to plaintiff’s attorneys upon the same day. No objections or amendments thereto were filed, and the bill was transmitted to the trial judge on Monday, February 26, 1906. It was signed and returned to the clerk on the second day thereafter. The record of the case is before us for review upon petition in error. The defendant in error has, however, interposed a motion to strike the bill of exceptions from the files upon the ground that it was prematurely transmitted to the trial judge, .and that the full time allowed by law for filing objections and amendments was, therefore, not afforded.
    Section 5301, Revised Statutes, provides that such objections or amendments shall be filed “within ten days after” the notice of the filing of the bill, and that the time for transmitting the bill to the trial judge begins to run “on the expiration” of said period of ten days.
    Section 4951 provides that “unless otherwise specially provided, the time within which an act is required by law to be done shall be computed by excluding the first day and including the last; and if the last be Sunday it shall be excluded. ’ ’
    It is clearly apparent, from these provisions of law, that where, as in this case, notice of the filing of a bill is given on the 16th day of the month, the adverse party, being entitled to ten full days within which to- file objections or amendments, should have the entire 26th day of the month, unless it be Sunday, available to him1 for that purpose. And since the bill in this case was transmitted to and received by the trial judge on that day, it is manifest that the right of defendant in error in that behalf was invaded by the clerk in thus abridging his time by one day. It should be noted, however, first, that the plaintiff in error is not in any way chargeable with this mistake, for the statute makes it the duty of the clerk alone to attend to the transmission of the bill, and the plaintiff in error is under no duty to instruct the clerk or to anticipate that he will act prematurely in this behalf. Secondly, it is not shown or suggested that the bill is in fact open to any objection or amendment.

      In Davies v. The New Casile & Lowell Railway Company, 71 O. S., 325, it is held that, where a party taking a bill of exceptions has seasonably filed the same “he has performed all the duties imposed upon him by the statute. ’ ’ And in the opinion of the court by Price, J., it is said at page 334:
    “Under our former statutes, several things were required of the excepting party in order to obtain a review of his case. Some of these were held in former decisions of this court to be mandatory and jurisdictional, and if not complied jwith the bill could not be considered. We hope that day is now past.”
    The present statute differs in no material particular from the one then under consideration, and we think the rule now is that, where the excepting party is not in fault, and the bill is, in fact, properly and seasonably signed, absolute regularity with respect to intermediate steps is not jurisdictional. If the adverse party, in good faith and within the time allowed him by law, applies in vain for an opportunity to examine the bill, or to file objections or amendments thereto, we apprehend that the law will not permit him to be prejudiced if he takes appropriate measures to manifest and secure his rights.
    The motion of defendant in error to strike the bill of exceptions from the files will therefore be overruled.
    On the merits of the case, the facts are substantially as follows: The reservoir into which the child fell was an artificial body of water surrounded by an embankment, with steep sides sloping towards the water, and enclosed by a picket fence. There was a footpath along the embankment inside the fence, and a private driveway led from the highway to and around the reservoir. The place was not adjacent to any public road or habitation, but was somewhat frequented by pleasure seekers, including children, without any protest on the part of the water works company, though the facts imply some notice to it of the practice, as well as of the circumstance that two pickets were missing from the fence at a point where children might, if they chose, crawl through the hole thus left and enter the enclosure. The decedent, who lived some distance away, was given permission by her mother, on the afternoon of the accident, to go into the woods in that vicinity with two companions to play.

      Neither the mother nor any of the children knew of the existence of the reservoir at that time, so far as appears. The children, wandering about, discovered the reservoir, crawled through the hole in the fence and were playing on the embankment when the decedent fell into the water and was drowned. No one else was present while the children were there. There was nothing about the reservoir to make it more attractive to children than other natural or artificial bodies of water usually are. The fundamental question in the case is, therefore, whether these facts constitute the negligent maintenance of an object alluring and dangerous to children. We think there can not be any question of contributory negligence left in the ease after the verdict of the jury. Furthermore, although there is some conflict of authority on this point, we find the decided weight of authority to be that the mere existence of a body of water, natural or artificial, does not amount to a dangerous allurement to children so as to bring it within the rule of the torpedo cases, in this state; or the turn-table eases, in other states. Unless there are, besides the presence of the water itself, other circumstances especially enticing and hazardous to children, whereby they are led by their infantile instincts to incur'the danger of drowning, the proprietor of a body of water is under no higher duty to infant trespassers or licensees than to adults. Dobbins v. M., K. & T. Iiy. Co., 38 L. R. A., 573; Crindley v. McKechney, 40 N. E., 764; Peters v. Bowman, 115 Calif., 365 (47 Pac., 113); Omaha v. Bowman, 40 L. R. A., 531; Moran v. Pullman Palace Car Co., 33 L. R. A., 755; Klix v. Nieman, 68 Wis., 271 (32 N. W., 223); Richards v. Connell, 63 N. W-, 915.
    Many other authorities directly in point on the facts might also be cited.
    The judgment must be reversed for error in refusing to grant the motion of defendant below that a verdict in its favor be directed. And proceeding to render the judgment which the court of common pleas should have rendered upon the conceded facts of the case, we here enter judgment for plaintiff in error.

      Allen, Waters & Andress, for plaintiff in error.

      Musser, Kohler & Motiinger, for defendant in error.


text:
    FEES OF PROBATE JUDGES.
    [Circuit Court of Columbiana County.]
    The State of Ohio, ex rel James A. Martin, v. J. Frank Adams, as Auditor of Columbiana County, Ohio.
    Decided, March, 1906.

      Construction of Section 546—Statute Wrongly Punctuated—Courts may Disregard Mistalce in Punctuation—Certificate of Medical Witnesses—Pees for, under Seclicn 705.
    1. Under Section 546 of the Revised Statutes, probate judges are entitled to receive six cents for each one hundred words of orders entered on the journal.
    2. Under the same section they are not entitled to thirty-five cents for each certificate under the seal of the court to the copies of the certificate of the medical witness and of his findings in the case as required by Section 705.
    Cook, J.; Laubie, J., concurs; Burrows, J., dissents from first paragraph of syllabus.
    Error to Columbiana Common Pleas Court.
    Plaintiff in error is the probate judge of this county and he brought a suit in mandamus to compel the auditor to allow two claims for fees which the inspector had instructed the auditor to reject and in accordance with which instruction ,the auditor did reject.
    The common pleas court sustained a demurrer to the petition. The first claim was for entering orders upon his journal in inquests of insanity.
    Section 546 of the Revised Statutes provides for the fees of probate judges in counties having twenty-two thousand five hundred inhabitants or more, and for services of this character the language is: “Entering order on journal, six cents; each one hundred words,” etc.
    The claim of plaintiff is that he is entitled to six cents for each one hundred words contained in the order entered upon the journal, while the claim of defendant in error is that he is only entitled to six cents for entering the entire order independent of its length. We are of the opinion that the plaintiff is right in his contention.
    Defendant relies principally upon the punctuation of the statute to support his claim. It will be observed that the services performed are first mentioned, then the fee he is entitled to receive. For instance: ‘ ‘ Issuing a subpoena where there is but one witness named, eight cents, and for each additional name, three cents; entering attendance of each witness, five cents; indexing each cause, eight cents; entering judgment on journal, eight cents; recording general verdict, eight cents; entering order on journal, six cents; each one hundred words, for transcribing judgment or order on the docket, eight cents. ’ ’ Clearly the semicolon is in the wrong place; likewise the comma. The semi-colon should have been placed after “each one hundred words” and the comma after “six cents.”
    It is true the same punctuation has been carried through the various revisions of the statutes for many years. That is unimportant, as it could easily arise from a clerical error. That the punctuation is wrong in this section is made clear when we turn to Section 1260, providing for the fees of clerks of court, which are of the same character: “For entering an order, verdict, rule or judgment on the journal, eight cents for each one hundred words. ”

    “Punctuating ought never to vary the true sense or the general object, and the courts can disregard or repudiate it.”
    The other claim which was rejected by the auditor was for fees for certificates attached to copies of his findings, and also attached to the certificate of the medical witnesses.
    Section 546, to which we have referred, provides that he shall receive for “each certificate, to which the seal of the court is required, and not herein provided for, thirty-five cents.” It further provides: “Making out copies of records of any proceedings in a cause, when required by either party or the law, with seal annexed, eight cents for each one hundred words. ’ ’
    Section 705 provides:
    “The probate judge, upon receiving the certificate of the medical witness, made out according to the provisions of the preceding section, shall forthwith apply to the superintendent of the asylum for the insane, situated in the district in which such patient resides; he shall, at the same time, transmit copies under his official seal of the certificate of the medcal witness, and of his findings in the case; upon receiving the application and certificate, the superintendent shall immediately advise the probate judge whether the patient can be received, and if so, at what time. ’ ’
    Section 714 provides:
    “In all cases of inquests held under the provisions of this chapter, the probate judge shall file and preserve all papers left with him, and shall make such entries upon his docket as will, together with the papers so filed, preserve a perfect record of each case tried by him.”
    From these provisions it would seem that the certificate of the medical witness and his findings are part of the record in the proceeding and, as payment is provided for the same under Section - 546 at eight cents for each one hundred words, he is not entitled to be paid for the certificates in addition to the eight cents for each one hundred words.
    Judgment of common pleas court is reversed and cause remanded for further proceedings.

      Billingsley, Clark & DeForcl, for plaintiff in error.

      .C. S. Speaker, for defendant in error.


text:
    WRONGFUL DEATH OF A CHILD.
    [Circuit Court of Hamilton County.]
    The Cincinnati Traction Company v. Jacob Simon, Administrator.
    Decided, January 18, 1906.

      Negligence—Child Struck by Street Car—Charge of Court—Responsibility of Motorman Inaccurately Defined.

    In a suit for damages on account of tile wrongful death of a ■ child who ran from the sidewalk in front of a street car, it is error to charge the jury without qualification that, “if you find from all the evidence that the motorman who had charge of the car which struck the plaintiff could, by the exercise of ordinary care, have seen the plaintiff and stopped the car,, and that by reason of the failure to stop the ear plaintiff was knocked down and injured, it would be such negligence on the part of the defendant as would enable the plaintiff to recover.”
    Swing, J.; Jelkb, P. J., and Gieeen, J., concur.
    This was an action in the court of common pleas for damages for the death of Isadore Simon, a child four and a half years, who was run over and killed by one of plaintiff in error’s cars. A verdict and judgment was rendered in said court in favor of the plaintiff for the sum of $2,000.
    Numerous errors were assigned in this court for the reversal of said judgment. It is urged that the court erred in its charge to the jury. The charge of the court contained this instruction:
    “The court says to you if you find from all the evidence that the motorman who had charge of the car which struck the plaintiff could, by the exercise of ordinary care, have seen the plaintiff and stopped the car, and that by reasoii of the failure to stop the car plaintiff was knocked down and injured, it would be such negligence on the part of the defendant as would enable the plaintiff to recover.”
    This portion of the charge is certainly inaccurate and misleading on a very vital question in the case. In the first place, the court says that if “the motorman could have seen plaintiff, # =:í # and that by reason of the failure to stop the car, plaintiff was knocked down and injured.” The plaintiff in this action, Jacob Simon, administrator, was not knocked down and injured, blit the child, Isadore Simon, was knocked down and injured, and it is oh account of his death that Jacob Simon, administrator, prosecutes the action. It is probable that the court did not mean the plaintiff Jacob Simon, but did mean Isadore Simon, the child, and it may be that the jury understood that when the court used the word plaintiff it did not mean the plaintiff in this action, but did mean Isadore Simon, the child, who was injured, and probably these misstatements, standing alone, should not be considered by a reviewing court as necessarily prejudicial, although erron¿ous. But it seems to us that there is prejudicial error in this portion of the charge, where the court says:

      “That the motorman who had charge of the car which struck the plaintiff, could, by the exercise of ordinary care, have seen the plaintiff and stopped the car, and that by reason of the failure to stop the car, plaintiff was knocked down and injured, it would be such negligence on the part of the defendant as would enable the plaintiff to recover.”
    When did it become the duty of the motorman to see the child, or if having seen it, when did it become his duty to stop his car? On these important matters the court does not instruct the jury, but does say without any qualifications, that if the motorman could have seen the “plaintiff” and stopped the car.
    There was absolutely nothing, as far as the evidence shows, to prevent the motorman from seeing the boy while he was standing on the sidewalk, and there was nothing to prevent the motorman from stopping his car before ever the boy left the sidewalk. This statement is too broad; it is not accurate, and is calculated to be misleading. It may be that the court did not intend that it be taken in that sense, but it might very well be. It is not the duty of the motorman to stop his ear so as to avoid injury to persons who may come in contact with it unless as a man of ordinary prudence has reason to, or should have reason to believe that his failure to stop the ear would cause injury.
    In this case, it was not the duty of the motorman to stop his car, unless as a man of ordinary care and prudence he had reason to, or should have had reason to apprehend that his failure to do so would cause injury to the child. Necessarily' no duty rested on the motorman as to this child until it indicated by its movements that it was about to cross the track; but the court says if the motorman could have seen the “plaintiff” and stopped the car, and that by the failure to stop the car the “plaintiff” was.injured, it was negligence. It is evident, we think, that this is not the negligence for which a recovery, can be had, and standing without any qualification, was erroneous, and for this reason the judgment is reversed and cause remanded for a new trial.

      Geo. H. Warrington, for plaintiff in error.

      Theo. Horstman and Geo, H, Kqtlenhorn, contra,


text:
    SOLICITATION OF BRIBE BY COUNCILMAN.
    [Circuit Court of Summit County.]
    Jeremiah Amundson v. the State of Ohio.
    Decided, April 17, 1906.

      Bribery—Section 6900, Applicable to Councilmen—Evidence Establishing a Case for the Jury—Defendant’s Meaning by Certain Remarles —Words and Phrases—Criminal Law.

    1. The words “or other officer,” as used in Section 6900 and having ■ relation to the giving of bribes to public officers or agents, includes members of a city council.
    2. Testimony to the effect that the defendant, a member of the city council, had said with reference to a proposed street improvement, that “some of the other members of council will have to be fixed up,” and that it will take $1,400 to get the matter through, is sufficient to make a prima facie case of soliciting a bribe and to carry the case to the jury; and as to what the defendant meant by the words “taking care of other councilmen” was a question for the jury.
    Henry, J.; Marvin, J., and Winch, J., concur.
    Error to the Court of Common Pleas of Summit County.
    Plaintiff in error was convicted of soliciting a bribe in October, 1905, to influence his official action as a member of the council of the city of Akron in the matter of the North Arlington Street improvement, then pending before that body. The indictment was drawn under favor of Section 6900, Revised Statutes, which provides that—■
    “Whoever, being a member of the Legislature, or a state or other officer, or public trustee, or agent or employe of the state, or of such officer or trustee, either before or after his election, qualification, appointment or employment,, solicits or accepts any such valuable or beneficial thing to influence him with respect to his official duty, or to influence his action, vote, opinion, or judgment, in any matter pending, or that might legally come before him, shall be imprisoned in the penitentiary not more than five years, op fined not more than five hundred dol-r |p,rsf op both,”

      The first assignment oí error involves the application of this section to the members of a. city council. It is contended that the words “other officer”'in the statute, in connection with the references to the “state” or “public” service therein contained, can not be deemed to include mere local officials such as the officers of a municipal corporation. Wp do not agree with this contention. There is no other provision in the statutes covering cases of this particular character, and it is unreasonable to suppose that the General Assembly, by thus discriminating, has left wide open the door of municipal corruption. True, the statutes contain separate provisions covering the giving or accepting of bribes, or the promise thereof, in the case of jurors, jury commissioners, referees, county seat commissioners, etc.; but the very large and vitally important classes of officials who administer our county, city and village governments seem to be made subject to no other provision of law in this behalf than the section under which this indictment was drawn.
    The second assignment of error relates to the sufficiency of the state’s evidence to make a prima, facie case. The main witness for the state, Arthur J. Rowley, of counsel for persons interested in the improvement, testified that the accused, in conversation with him in the fore part of October, represented that he was in favor of said improvement and wanted nothing for himself but the political friendship of the persons interested, but that “so far as some of the others were concerned they would have to be taken care of.” And the next day the accused told him further: “I talked that matter over and it will take $1,400.”
    Prank W. Rockwell, another witness for the state, testified to a conversation which he had with the accused about the same time. Pie had understood from Amundson, who was chairman of the council committee having the matter in charge, that the pending ordinance would be brought up for passage at the next meeting; but just before the meeting convened he told Rockwell that “he didn’t want to bring it up.” The witness asked him “Why?” and he replied that the proposition to the city by the corporation interested in the improvement was unsigned. The witness thereupon yeminded him that the proposition referred to had been signed and submitted in June, and should be in possession of the street committee. Amundson then remarked: “Well, there are interests of some of the other members of the council that will have to be fixed up.” The witness inquired what interests they had in it, to which the accused answered, “Well, I will bring it up.”
    We think the testimony of the witnesses Rowley and Rockwell taken together was sufficient to carry the case to the jury as tending to prove that he was soliciting from the corporation above mentioned through the above named witnesses the payment of $1,400, to him for other members of the council, as a condition of his own official action in favor of said improvement. And this is the gist of the offense for which he was indicted and of which he was convicted.
    It is claimed, however, that there is such confusion and discrepancy of dates and circumstances in the testimony above quoted and the records of'council proceedings as to render it unsufficient for a prima facie case. Without entering into a discussion of the question, we are content to say that our examination of the record fails to sustain this claim.
    It is said further that Amundson’s explanations of his conversations with Rowley afford the only reasonable interpretation thereof, viz., the $1,400 was his estimate of the damages for which the city would become liable to adjacent property owners by reason of the improvement, and which he believed Rowley’s client should agree to pay to the city, and that the taking care of other councilmen meant that they should be acquainted by those interested with the facts which rendered the improvement desirable and advantageous to the city. This was properly a ■question for the jury, and we see no reason for disturbing their verdict in view of all the evidence.
    There being no error in the record, the judgment is affirmed.

      Stuart & Stuart, E. F. Voris, for plaintiff in error. .

      E. M. Eagelbarger, Prosecuting Attorney, and Chas. li. Grant, for defendant in error.


text:
    CONSIDERATION FOR. DISMISSAL OF A SUIT FOR. DAMAGES.
    [Circuit Court of Allen County.
    Lake Shore & Western Railway Company v. William Tierney.

    Decided, 1905.

      Breach of Contract—For Future Employment—Consideration, the Dis- . missal of a Suit for Damages—Measure of Damages for Breach-Justification for Discharge—Good Faith in Believing Services were Unsatisfactory.

    1. The dismissal of a suit for damages, brought by an injured employe of a railroad company, is a sufficient consideration for a contraction his future employment so long as his services are satisfactory.
    2. Dissatisfaction with such services, such as to justify a discharge, must be a reasonable dissatisfaction and not an arbitrary one.
    3. The good faith of the company in claiming such services to be unsatisfactory will not alone justify the discharge, if the services rendered were, in fact, such as ought to have been satisfactory to a reasonable employer.
    4. The measure of damages for the breach of such contract for employment is the amount of money which the employe would have earned at the stipulated salary from the time of his discharge to the time of the trial, together with the amount he could in future earn in the time during which he could reasonably be expected to serve, taking into account his age and state of health, and deducting whatever amounts he could reasonably have earned at other employment since his discharge, and what he might so earn in the future by reasonable diligence.
    Hurin, J.; Norris, J., and Yollrath, J., concur.
    William Tierney, an employe of the L. E. & W. R. R. Co., some, years ago sustained an injury through the alleged negligence of the railroad company, which resulted in the loss of a leg. He brought suit against the railroad company for thirty thousand dollars damages. That case was compromised and the suit dismissed, Tierney at that time signing a written instrument whereby, for a nominal consideration of one dollar, he released and discharged the railroad company from all claims, demands, suits, actions and causes of action, etc., for any injuries to his person. The instrument contained this clause: “Said company to employ me so long as my services are satisfactory.”
    This agreement was dated October 31st, 1892. In pursuance of the agreement Tierney was employed by the railroad company as an assistant in the freight office at a salary of forty or .forty-five dollars per month. This employment continued nearly a year. He was then transferred to the South Main street crossing in Lima as flagman at twenty-five ($25.00) per month. He accepted this employment and continued to serve as flagman at that point until October 27th, 1899, when he was discharged for alleged misconduct, including negligence, absence from his post and drunkenness.
    He thereupon commenced this action against the railroad company alleging that his discharge was without cause; that the company had refused and still refused to furnish him employment; that he had in all respects fulfilled his agreement with the railroad scompany, to-wit: the dismissal of the action for damages previously referred to, and that his services rendered the company were of a nature that should have been satisfactory to the defendant. For this breach of its contract of employment he asks damages against said company in the sum of ten thousand dollars.
    The company answered admitting the dismissal of the former suit by Tierney; the contract of employment, the employment of Tierney in accordance with that contract, and his subsequent dismissal; and avers that his services were not satisfactory to defendant and that he was for that reason discharged. The case has been twice tried and the jury at the second trial returned a verdict in favor of the plaintiff for three thousand dollars. Judgment was entered on the verdict, a new trial being refused.
    This judgment we are now asked to reverse. The case seems to have been fairly tried and we have discovered no prejudicial errors in the admission or rejection of evidence. But strenuous objection is made to the verdict as against the weight of the evidence, and to the charge of the court to the jury; and especially to the refusal of the court to charge the jury as requested.
    It is claimed, and the court was asked to charge, that the contract furnishes no practical basis on which the amount of damages can be ascertained—that it is therefore void for uncertainty and want of mutuality.
    That it is a difficult problem to determine' the exact amount of damages recoverable in such a case must be admitted. The uncertainty of life, of health, of continuing ability and disposition to render satisfactory services, combine to make a computation difficult. But the contract does furnish a basis for the computation and a practical one. That basis was well defined by the trial judge in his charge to the jury as full com-, pensation in dollars and cents for all injuries arising from the breach of the contract. The details of the problem will be referred to later, but this is the basis of the computation, and the defendant having made the contract, having received the consideration therefor—the dismissal of a thirty thousand dollar damage suit—can not be heard to complain that the contract is void for want of mutuality or for uncertainty, when the uncertainty consists merely in a difficulty of computation.
    The court was asked to charge the jury that the company was to be the sole judge of the services rendered, and, if in good faith, it decided that his services were unsatisfactory, it had the right to discharge the plaintiff at any time.
    This does not fairly state the case. The defendant may have been dissatisfied and may have thought that it had reason for dissatisfaction, and may have acted in good faith and so discharged plaintiff, and yet it may have been requiring unreasonable things; it may have been misinformed as to his conduct and so may have become dissatisfied without good cause, yet in perfect good faith. This contract should not be construed from one side alone, and the court properly refused to do so in this respect. Each party had his rights and obligations. The obligations as well as rights of each must be considered. The charge as requested did not, in our judgment, meet this test.
    Decisions of courts in other states, ignoring this mutuality of obligation and right, are cited by counsel for plaintiff in error; but, where they are applicable at all, we think them not within sound reason as applied to cases such as the one at bar.
    The court was also asked to charge that even though the services may have been such as should have been satisfactory up to the time of the discharge, yet the jury is not authorized to presume that the services would have continued to be satisfactory to the defendant for any definite time.
    It was in evidence that for seven years this plaintiff had rendered services sufficiently satisfactory to the defendant to secure his retention in its service. There would seem to be a strong presumption from that fact as to his continuing to cln so, unless this was destroyed by evidence as to his past conduct or present want of capability. Of this evidence and of its weight the jury was the judge. It had a right to make such a presumption, if the evidence warranted it.
    The court was also asked to say to the jury: “The jury can not speculate as to the probabilities of further employment on the part of Tierney.”
    This, we think, was properly refused, and it brings us to the consideration of the true rule for estimating the amount of recovery, if any, on the basis of injuries, received from the alleged breach of contract. In the ease of Stearns v. The L. S. & M. S. By. Co., 71 N. W. Rep., 148, this rule is stated:
    “For the employer’s breach of a contract of employment at a specified salary during a person’s natural life or his ability to do the work, the measure of damages is the amount which the employe would have earned up to the time of trial at the contract salary, and the present worth of what he would -be able to earn in the future, so long as he would be able, in the ordinary course of events to perform the service, less any sums which he would be able to earn in other employment by the exercise of reasonable diligence. ’ ’
    And in the ease of Pierce v. Tennessee Coal, Iron & Bailroad Co., 173 U. S., 1, the Supreme Court lays down this rule:
    “Where the railroad company after a time abandoned the contract and discharged the employe without cause, the latter may maintain an action once for all, as for a total breach of the entire contract, and may recover all he would have received in the future, as well as in the past, if the contract had been kept, deducting any sum he might have earned in the past or might earn in the future and any loss the company had sustained by loss of his services without its fault.”
    To the same effect is the case of The East Tennessee Valley & C-. B. Co. v. Staub, 7 Lea (Tenn.), 397, where it is said that: “the difficulty of ascertaining the damages by reason of the uncertain and contingent events upon which they depend, as the duration of plaintiff’s life, is no objection to the action.”
    We must conclude then that the requests to charge, complained of as not given, were properly refused; that a practical basis for damages is afforded by the contract and that the court properly instructed the jury in the charge as given.
    Was the verdict justified by the facts proven, and under the charge as given? To have found as it did, the jury must have found from the evidence that plaintiff was discharged without justifying cause and that the amount of injury that he sustained by that discharge, measured by what he would have earned up to the time of the trial and by the length of time he could reasonably be expected to serve in the future, taking into account his age and state of health, and deducting what he could reasonably have earned and might earn in the future in other employment;’ equalled $3,000.
    There was much evidence tending to show that plaintiff’s discharge was justifiable; that he drank too freely for one on whom such grave responsibility rested; that he was careless and negligent in warning people of the approach of trains; that he frequently absented himself from his post, and that in other ways he was unfit for this position; and that, too, through his own fault. All this was denied by plaintiff’s witnesses, who testified to the contrary.
    The jury had the testimony before it. It was a question of fact to be determined by the jury. We can not say that their conclusion in this regard was against the weight of the evidence.
    As to the amount of the verdict, while it seems to have been a liberal amount, it is not so excessive in our judgment as to justify a reversal. It is interesting to note in this connection, that at the rate of wages which Tierney was earning at the time of his discharge, his earnings from that day to this would have amounted to just $1,700—considerably more than half the verdict. At his time of life it seems altogether possible that he may live and retain his health long enough to have fully earned the balance of the judgment. But .this merely in passing.
    Finding no error, the judgment of the court of common pleas must be affirmed. Judgment against plaintiff in error for costs, for which execution is awarded, and cause remanded for execution.

      Walter B. Richie and W. E. Leele, for plaintiff in error.

      Edwin Blank and Cable & Parmenter, for defendant in error.-

      Aflirmed by the Supreme Court without report, October 2, 1906.


text:
    TITLE OF SUCCESSFUL PLAINTIFF TO FUND IN THE HANDS OF RECEIVER.
    [Circuit Court of Hamilton County.]
    Elizabeth Eichert, Executrix, v. Elizabeth Eichert, Widow, et al.
    Decided, February 18, 1905.

      Rents—Collected by a Receiver—Title to, Where the Action is Dismissed without Prejudice—Sale of Property to Pay Debts of a Decedent■—Distribution—Rights of Mortgagees—Not Determined by Dismissal, When.

    Where an action to sell property to pay the debts of a decedent is dismissed without prejudice to the rights of certain defendants holding mortgages, and upon whose application a receiver- has been appointed to collect rents for use in procuring insurance and redeeming the property from forfeiture for unpaid taxes, and the fund has not been so applied, the receiver does not hold the fund for the benefit of the successful party, but is bound to account therefor to the court appointing him.
    Gieeen, J.; Jelke, J., and Swing, J., concur.
    This action was commenced in the court of common pleas for the purpose of selling real estate to pay the debts of the testator.
    On 'November 21, 1900, the defendant, F. S, Starkey, was appointed receiver to take charge of all the property in the petition described, with sole power to collect rents from the various tenants- and to apply the proceeds thereof under the direction of the court toward the insurance of the premises against loss by fire, and toward the redemption of said property from forfeiture for unpaid taxes.
    On April 11, 1901, the action was dismissed without prejudice to the rights and claims of the' Bodmann German Protestant Widows’ Home, Gustav Tafel, and W. T. Wagners’ Sons Company on their mortgages held by them respectively.
    On October 10, 1903, P. S. Starkey, as receiver, took a receipt from Elizabeth Eichert, life tenant of the .premise, for the sum of $155.73.
    On October 12, 1903, the court made an order directing the receiver to turn over the money then in his hands, and collected by him as recivér, to Elizabeth Eichert. On October 31, 1903, 'the court- found that this order was inadvertently made and thereupon set it aside.
    On March 30, 1901, E. S. Starkey and J. G. Hudson were made parties defendant, and filed an answer in which they aver that on the- day of October, 1900, Elizabeth Eichert, the life tenant, in consideration of services performed and to be performed by them as attorneys, assigned and transferred to them all of the rents, amounting to $1,200, and that after deducting the $155.73, for which the receipt of Elizabeth Eichert had been given, there remained a balance due of $711.27.
    On March 30, 1901, the report of -the receiver showing a balance of $1,628.11 in his hands, was approved and confirmed. And the cause coming on further to be heard upon the motion of -Elizabeth Eichert, to require the receiver to pay over to her the funds in his hands, and the answer of P. S. Starkey and J. G. Hudson, the court ordered the receiver to pay the sheriff of Hamilton county, ’Ohio, said sum of $1,628.11, together with all rents collected since February 20, 1902, less the necessary expense and the fee to him, P. S. Starkey, of $175, and ordered the sheriff to distribute and dispurse said moneys in accordance with the terms of any order the court may make in case No. 123678, entitled “Gustav Tafel, plaintiff, v: Eichert et al, defendants, Hamilton County Court of Common Pleas,” in which ease the property described in the petition had been sold by the sheriff. And thereupon the court terminated the receivership.
    No money was paid by the receiver to Elizabeth Eichert when the receipt of October 10, 1903, was executed. It was simply an exchange of receipts between the receiver and Elizabeth Eichert, and was without authority from the court appointing him. The subsequent order of October 12, 1903, was never complied with and being set aside on October 31, became a nullity.
    It is claimed by the receiver that by the dismissal of the suit, the rights of the parties were finally established, and that as receiver he held the fund for the benefit of the successful party; that no order of the court was required to perfect the title of such party to the fund. He relies upon the rule stated in the 23 Am. & Eng. Encyc. of Law, page 1128, as follows:
    “The functions of a receiver are, as a rule, terminated by a final decree in the cause whereupon the receiver ceases longer to act in the capacity of receiver, but becomes a trustee as to the property in his possession for the person entitled thereto under the decree. This rule applies, it has been held, though there is'no formal order made discharging the receiver.”
    In this case, however, no decree was entered fixing the rights of the parties, but on the contrary the ease was dismissed without prejudice to the rights of the very defendants upon whose application the receiver was appointed. Among those rights was the one to have the proceeds of the rents collected by the receiver applied to the payment of their claims after the payment of taxes or other prior liens.
    The receiver is an officer of the court appointing him, and subject to its direction and control. At the time, of the appointment, the receiver was empowered to apply the proceeds, under the direction of the court, towards the insurance of the premises against fire, and toward the redemption of said property for forfeiture for unpaid taxes. It appears that no taxes were paid by the receiver. Under such circumstances, Elizabeth Eichert, life tenant, was entitled to no part of the fund, and the receiver was bound to account for the same to the court appointing him.
    We think the order appealed from was proper and a like order will be made in this court.

      F. S. Starkey and J. G. Hudson, for the appellant.

      Chris. Von Seggern and Tafel & Schott, contra.

      Affirmed without report, 74 Ohio State, -,


text:
    PROPERTY HELD IN TRUST FOR. A FRATERNAL ORDER.
    [Circuit Court of Franklin County.]
    New England Lodge No. 4 F. & A. M. et al v. Rufus M. Weaver et al.
    Decided, 1906.

      Trusts and. Trustees—Conveyance for Benefit of Masonic Lodges— Rights of the Cestuis que Trustent—Seceders must Invoice Procedure within the Organization—Can not Establish Their Right to Title to Property of the Organization by an Action in Court—Duty of Public Officer Holding a Dry Trust.

    1. Where a deed to a public officer in trust for certain unincorporated societies names beneficiaries and employs words of perpetuity to convey the fee, but does not invest the trustee with any other duty than that of being the mere repository of the legal title, it is competent for such trustee to execute the trust at the instance of the cestuis que trustent by conveying such property to them or their nominee.
    2. Where a grantor conveyed land to the governor of the state, in trust for the local organization of certain fraternal orders, the fact that such local bodies have seceded from the state organization which had chartered them, will deprive them of the right to enjoy such property, where their charters have been reissued to other bodies since the secession.
    Henry, J.'; Marvin, J., and Giefen, J., concur (sitting in place of the Judges of the Second Circuit).
    Heard on appeal from common pleas court.
    This was a case involving a controversy between two organizations, each claiming to be the cestui que trust of land in the town of Worthington, Franklin county, Ohio, which was conveyed in 1824 by one John Snow to Jereiniah Morrow, governor of the state of Ohio, and his successors in office forever, “for the use and benefit of New England Lodge and Horeb Royal Arch Chapter, Free and Accepted Masons, established in said town of Worthington.” This lodge and chapter were established respectively in 1814 and 1816. by charters from the grand lodge and grand chapter of the state of Ohio, and they were incorporated under the laws of Ohio in 1887 and 1888. In 1891 the local bodies in Worthington withdrew from their respective state organizations aforesaid, by reason of requirements imposed by the latter upon them which they deemed to be unmasonie and a departure from the ancient landmarks of the order. The state organizations thereupon demanded a surrender of their masonic charters, and this being 'refused, duplicate or substitute charters were issued to a small minority of the local bodies who had either not participated or had not persisted in the revolt.. The seceders remained in possession of the property in dispute, maintaining substantially their accustomed names, practices and corporate organizations, but no longer in subordination, to the grand lodge and grand chapter of the state of Ohio.
    In 1899, the local bodies, to which the duplicate charters had been issued, procured from Asa S. Bushnell, then governor of the state of Ohio, a deed of conveyance of the property in dispute to one Weaver, as trustee for their local lodge—their local chapter having waived its rights thereto. Thereupon the seceders, being still in possession and claiming to be the true beneficiaries of the original trust, brought this action to enjoin'the record of said deed, to have the same declared null and void, and for general relief. The present governor of the state of Ohio, the recorder and auditor of Franklin county, and the grantee of Governor Bushnell are made parties defendant.
    The plaintiffs contend that the sole issue to be- decided here is as to the validity of the deed from Governor Bushnell to Weaver. The defendants contend that a preliminary question is, whether or not the plaintiffs are the beneficiaries of the original trust, and if not, whether they have any standing in court to complain of the alleged invalidity of "said deed;
    ■ On the part of the plaintiffs it is urged that this action is properly brought within the purview of Section 5779, Revised Statutes of Ohio, which provides that, “An action may be brought by a person in possession, by himself or tenant, of real property, against any person who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest.” They further urge that the terms of the trust, as defined in the deed to Governor Morrow, are such as to devote the land in controversy to the uses thereby defined, in perpetuity, and that Governor Bushnell, therefore, had no right to alien the property to any person or for any purpose whatsoever.
    Our examination of the deed to Governor Morrow and of the authorities cited to us, convinces us that the original trust was nothing else than a simple or dry trust, created to obviate the difficulty, of granting' the land directly to two unincorporated societies for their joint use. The deed names the beneficiaries and employs words of perpetuity to convey the fee, but it does not invest the trustee with any duty other than that of being the mere repository of the legal title. It was, therefore, perfectly competent for the trustee to execute the trust at the instance of the beneficiaries by conveying it to them or their nominee.
    We are, therefore, compelled, even on the plaintiff’s theory of their ease, to inquire next whether the alleged beneficiaries thus recognized by Governor Bushnell were the cestuis que trust ent of the original deed to Governor Morrow. It is clear that Snow, the original grantor, sought to name as beneficiaries the local bodies then established in Worthington in subordination to the state bodies then existing. It is equally clear that the plaintiffs have seceded from that relationship. They may have had the best of reasons for so doing, and their claims as to the action of the state bodies being a departure from the ancient landmarks may be perfectly true. But those are questions which they must work out through the organizations themselves. They were entitled to invoke the procedure afforded by those organizations for the relief of dissatisfied adherents. It is not complained that such procedure was not afforded, nor that they were denied the right to invoke it. And we must, therefore, hold that the plaintiffs, having withdrawn from the organizations contemplated by the original deed of trust, are not entitled to the relief for which they pray. .
    Petition dismissed.

      T. J. Duncan, for the plaintiffs.

      O. W. Aldrich and Allen Andrew, for the defendants.