text:
    EASEMENTS — INJUNCTIONS
    [Cuyahoga (8th) Circuit Court,
    December 27, 1910.]
    Henry, Marvin and Winch, JJ.

      May R. Remington v. Fire Proof Warehouse Co. et al.
    1. Use of Driveway not Restricted to Residence as Distinguished from Commercial Purposes.
    The use of a driveway provided for in a deed by general language can not be restricted to residence purposes, as distinguished from commercial purposes, though at the time the use was charged upon the land all the premises were used for residence purposes only.
    2. Use of Driveway Reserved over Adjoining Land not Enjoined, Notwithstanding Addition of Other Parcel Benefited.
    One who buys land, to which is annexed the use of a driveway over another’s land, will not be enjoined from using said driveway for access to his own land, even though he has added a small additional parcel of land to his original parcel, which addir itional parcel is also in some small degree benefited by the use of such driveway.
    Error.

      Remington & Looker and Hills <& Van Derveer, for plaintiff in error.

      Henderson, Quail & Siddall, for defendant in error.

      Affirmed no opinion, Remington v. Fire Proof Warehouse Co., 87 Ohio St. 523.

   HENRY, J.

The plaintiff in this appealed action seeks to enjoin the use of her premises as a driveway by the defendant, the Fire Proof Warehouse Company. Said premises were conveyed by A. G. Hutchinson in March, 1899, to the plaintiff, and they consist of sixty-three feet a little northeiiy of Euclid avenue on the east side of 115th street (formerly Rosedale), in the city of Cleveland. The deed of conveyance contained the following clauses:

“Subject to the reservation by the grantor himself, his heirs and assigns, of the driveway use of a strip of land 10 feet wide from front to rear off the southerly side of said premises herein conveyed.
“Free from incumbrances, except the right of driveway heretofore granted by deed of A. G. Hutchinson to R. IT. Fetterman, dated September 4, 1891, and recorded in Volume 501, page 384, of Cuyahoga county records. ’ ’

The deed to Fetterman contains the following clauses:

‘1 Beginning at the northwesterly corner of land in said lot, deeded by ns to R. H. Fetterman by deed in Volume 462, page 593, Cuyahoga county records; thence northerly along the line of our land to the south line of a ten foot wide private driveway about 48 feet to a point therein intersected by a line continued northerly from the northeasterly corner of land deeded by us to Fetterman and upon the same course as his easterly line; thence southerly in said extended line to the northeast corner of land deeded by us to Fetterman about 16 and 8-12 feet; thence westerly to the place of beginning about 48 feet; also there is granted herein and hereby a use in common by the said grantees, their heirs and assigns, with the grantors, their heirs and assigns, of said private driveway for their joint use and benefit for driving to and from said above described land over said driveway to Rosedale avenue and for no other purpose. The use of said driveway by said grantee to extend no more than 15 feet easterly from the westerly line of land above deeded.”

The previous deed from Hutchinson to Fetterman mentioned in the foregoing' quotation' conveys the land described therein as “being a part of the parcel of land deeded by Thomas Wilson and wife to A. G. Hutchinson, July 15,1889. ’ ’

The deed from Wilson to Hutchinson includes the major part of the land fronting on Euclid avenue, now owned by the defendant, the Fire Proof Warehouse Co. Plaintiff’s and defendants ’ lands fronting respectively on 115th street and Euclid avenue come into contact with each other at right angles in the rear, and the driveway on plaintiff’s premises, the use of which by defendants is here sought to be enjoined, is thus physically appurtenant to defendants’ premises. The language of the deed from Hutchinson to plaintiff, by following up the chain of references therein noted, creates an easement appurtenant to the lands retained by the grantor, and said easement is, by appropriate words, expressly made-a hereditament, reserved “by the grantor to himself, his heirs and assigns.”

The grounds of plaintiff’s claim to an- injunction are these:

First. That at the time she acquired her premises, subject to her grantor’s easement therein of a driveway use, 115th street was, and it still is, an exclusively residence locality, as was also Euclid avenue in the vicinity of its intersection with said street, and the use of said driveway was then confined in fact, and in the contemplation of the parties to the deed of conveyance from Hutchinson to plaintiff, to such driveway purposes as are. ordinarily incident to land so used; whereas the defendant’s use of the driveway is for commercial purposes.

Secondly. It is claimed that the defendant, the Fire Proof Warehouse Co., is now using the said driveway not only for the commercial purposes incident to the altered use of the premises as the site of a storage warehouse, but that said warehouse occupies ten feet more land on Euclid avenue than Hutchinson owned at the time said easement was reserved by him, so that plaintiff’s premises are in fact being subjected to an additional servitude in connection with the use of land to which the driveway use was never intended to be appurtenant.

Upon the first point we are of opinion that the language of plaintiff’s deed concerning the easement in controversy, is not ambiguous and does not admit of the introduction of oral evidence to explain or qualify it. The driveway use indicated by the language used is general and not qualified.

On the second point we hold that although the easement in question is not appurtenant to the easterly ten feet of the Fire Proof Warehouse Co.’s property, .the additional burden from this cause is relatively so trifling as not. to warrant the injunction which plaintiff prays. In so far as the use of the driveway appurtenant to said ten feet is concerned, no substantial use is shown by the evidence. If the defendant should enlarge its warehouse, so as to include other land, a different case would undoubtedly! be presented. ' As the matter now stands, die plaintiff’s petition will be dismissed, but the defendánt will be charged with the costs. . . .

Marvin and Winch, JJ., concur.


source: Caselaw Access Project

author: HENRY, J,

license: Public Domain

text:
    APPEAL
    [Cuyahoga (8th) Circuit Court,
    December 27, 1910.]
    Henry, Marvin and Winch, JJ.
    Cleveland Trust Co. v. John Hartness Brown et al.
    1. Appeal of Case Dismissed After Demurrer to Petition Sustained.
    In a proper case appeal may be taken from a judgment of the common pleas court sustaining a demurrer to a petition and dismissing the same upon the statement of the plaintiff that he does not desire to plead further.
    2. Rights of Cross-Petitioning Defendant Brought up by Appeal After Case Dismissed after Demurrer.
    The dismissal of a case after sustaining a demurrer to the petition carries with it the dismissal of a cross-petition setting up a tax lien on the premises involved in the proceedings, and an appeal thereafter by the plaintiff brings up the whole case, including the rights of the cross-petitioning defendant.
    Appeal.

      Henderson, Quail & Siddall, for plaintiff.

      Hidy, Klein & Harris and A. B. Bernstein, for defendant.
   HENRY, J,

The defendant Brown moves here for the dismissal of this appeal upon the grounds that the judgment appealed from is not a final order, in that the dismissal of the petition was voluntarily submitted to by the plaintiff; and also in that the issues tendered by the cross-petition of the defendant, C. S. Horner, trustee, were not disposed of, although a final determination of the cause required their adjudication.

The. action was commenced to foreclose a contract lien asserted by plaintiff upon real estate of the defendant Brown. The order appealed from reads:

‘ ‘ October 27, 1910. To Court: The demurrer of the defendant, John Hartness Brown, to the petition, having heretofore been sustained as to the second ground thereof, and the plaintiff not desiring to amend or further plead, it is ordered and adjudged that said petition be, and the same is hereby dismissed, and that the defendants, John Hartness Brown and C. D. Horner, trustee, recover from the plaintiff their costs of this suit. Judgment is rendered against the plaintiff for its costs herein. The amount of the bond for appeal is fixed at $200. ’ ’

We do not deem it necessary to re-examine or to vindicate the grounds of the established practice of the circuit courts of this state to recognize the appealability of actions after judgment rendered upon demurrer to the petition in this matter. We have frequently sustained it; and that, too, despite the suggestion that this practice may permit the bringing of a cause into this court for trial upon the facts, where such trial was shunned below. What hazard, if any, to the parties may result from tactics of this sort, where leave to amend is first sought here, after demurrer sustained below, is another question, and one which has no proper bearing upon their right to appeal.

Upon the remaining ground of the motion, it is true that such issues as were tendered by the cross-petition of Horner, trustee, were not adjudicated. He alleges “that he is the owner and holder of a certain tax certificate No. 82, given by the Auditor of Cuyahoga County for the taxes and penalty for the year 1906, and also for the simple tax for the year 1907, paid on said sub-lot No. 31, described in plaintiff’s petition;” and that there is due him thereon $632.64, with interest and he therefore prays for the sale of said property; that he be found to have a first lien thereon, and that he be paid out of the proceeds of such sale, after payment of costs, the amount of said lien as aforesaid.

We think this cross-petition does not state an independent cause of action. Even if it alleges facts sufficient to show the lien provided for by Sec. 2880 R. S. (Sec. 5724 6. C.), no such independent mode of enforcing the lien of a purchaser at a delinquent tax sale is there given, as Sec. 2910. R. S. (Sec. 5766 G. C.), gives to a purchaser at a sale of forfeited lands; nor do we know of any precedent for the maintenance of an independent action to foreclose such lien.

We hold that the judgment appealed from is a final order to which an appeal lies; that the dismissal of the petition necessarily carried with it the. cross-petition also, so that nothing remained to be disposed of below; and that the appeal brings up the entire cause.

The motion is overruled.

Marvin and Winch, JJ., concur.


author: HENRY,. J.

text:
    ASSIGNMENTS FOR BENEFIT OF CREDITORS
    [Cuyahoga (8th) Circuit Court,
    January 5, 1911.]
    Henry, Marvin and Winch, JJ.

      Mutual Bank v. Cleveland Trust Co. et al.
    Dividend on Certificate of Deposit Pledged to Secure Loan by Insolvent Bank Computed upon Full Amount of Certificate.
    A certificate of deposit in a bank which afterwards became insolvent, was deposited with another bank as collateral security for a’debt due it; upon declaration of a dividend by the assignee of the insolvent bank. Held: That it should be computed upon the full amount of said certificate of deposit, notwithstanding that meanwhile the debt to which it had been pledged as collateral had been reduced, but not below the amount of such dividend, and that the proceeds thereof were misapplied by the agent authorized to negotiate the loan.
    Appeal,

      Steams, Chamberlain & Boyan, for plaintiff.

      Blandin, Bice <& Ginn, for defendant.

       Affirmed no opinion, Cleveland Trust Co. v. Mutual Bank, 88 Ohio St. 525.

   HENRY,. J.

This action was brought by the Mutual Bank, a corporation organized under the laws of the state of Illinois, against the Cleveland Trust Co., as assignee in insolvency of the Euclid Avenue Trust Co.,- to require the allowance by said assignee of plaintiff’s claim against the insolvent’s estate.

The Assets Realization Co. was subsequently given leave to become a party defendant, while this case was pending in the court of common pleas, and shows-by its answer that it has, with the approval of the insolvency court, purchased all the assets of the insolvent’s estate for a sum equivalent to fifty per cent, of all claims that are or may be allowed in'the settlement of the. trust. •' •

The grounds of defense alleged by the defendants respectively, will appear in the further statement of the casé.

The facts, as shown in evidence, are substantially as follows:

Early in 1908 the Euclid Avenue Trust Co. was called upon by the Cleveland Clearing House Assn, to meet certain demands imposed by said association, as a condition of its continuing to enjoy the privileges of the clearing house. To enable it to meet these demands, R. S. Thomas, the treasurer of the Euclid Avenue Trust Co., while in New York, issued to P. J. Keiran, a certificate of deposit, in words and figures as follows:

“$50,000.00 Cleveland, O., Feby. 21st, 1908.
P. J. Keiran has deposited with
The Euclid Avenue Trust Company, fifty thousand dollars, payable December 1st after date, in cur-
Mutual Bank v. Cleveland Trust Co. rent funds to the order of himself, on the return of this certificate properly endorsed. Interest 4% per annum.
“(Signed) R. S. Thomas,
“Treasurer

Said certificate of deposit is endorsed as follows:

“P. J. Keiran.”.

On returning to Cleveland the treasurer informed his associates in the trust company of what he had done, and minuted the fact of issuance of the certificate in the trust company’s register-of its certificates of deposit issued.

In co-operation with Mr. Keiran, the treasurer had made arrangements with Mr. Clifford Ladd, of New York, by which the latter had agreed to accept and pay a draft for $50,000 upon himself, in exchange for this certificate of deposit, and the certificate was given to Keiran to be delivered to Ladd on payment of said draft.

The arrangement with Ladd having fallen through, Keiran told Thomas that he could obtain the $50,000 in Chicago, whither he then took the certificate of deposit, requesting Thomas to wait his return in New York. Returning to New York, Keiran advised Thomas that he had negotiated the certificate with the Mutual Bank and that the -money would be in Cleveland upon his arrival. Mr. Thomas thereupon went back to Cleveland and on the morning of March 16th received a letter from the Mutual Bank stating that the certificate of deposit had been offered to it as security for a loan, and requesting advices as to its regularity. To this letter Thomas replied on the same day assuring the Mutual Bank that the certificate would be paid by the trust company at maturity. Keiran had in fact negotiated the certificate with the Mutual Bank, which had already made a loan or loans on the security thereof and of other collateral, to the Benedictine Sisters, of Náúvoo, Illinois, and the proceeds of the loan, by reason of Keiran’s breach of trust, never reached the trust company. Except that the statutes of Illinois prohibit corporations of the class to which the Mutual Bank belonged from making any loans in excess of ten per cent, of their paid-up capital, the limit, thus fixed, being in the case of the Mutual Bank, $25,000, the loán which it made upon this certificate was negotiated in the regular and usual course of business. The loan was evidenced by three notes, executed by Keiran and others, who furnished the collateral, and directed the amount of the loan to be credited to the Benedictine Sisters. Before the fraud was discovered the amount so credited had all been drawn out and the notes renewed, upon the assurance, as aforesaid, that the certificate of deposit would be paid at maturity. Since then the makers, other than Keiran, have paid $25,000 of the loan, leaving an equal amount unpaid; as security for the payment of which the Mutual Bank still holds the original collateral, including the certificate of deposit for $50,000. It now seeks to have the certificate of deposit allowed at its face by the assignee of the Euclid Avenue Trust Co. If this is done, it will receive by way of the fifty per cent, dividend payable to all the creditors of the Euclid Avenue Trust Co., an amount almost exactly equivalent to the total amount of the remaining debt secured by said certificate.

The defendants, however, insist that the loan having been made in violation of the Illinois statute, the collateral pledged as security therefor can not be enforced, in view especially of the fact that the certificate was issued wholly without consideration by and negotiated in fraud of, the Euclid Avenue Trust Co.; and they further urge that even if the claim should be allowed, there should first be deducted therefrom, under authority of State National Bank v. Esterly, 69 Ohio St. 24 [68 N. E. 582] the amount already paid upon the loan.

Regarding the first of these defenses, it must be observed that the Mutual Bank can not be affected by Keiran’s fraud. He was authorized by the Euclid Avenue Trust Co. to negotiate the certificate, and his fraud consisted only in the misapplication of the proceeds. The circumstances under which the loan was negotiated are not such as to charge the Mutual Bank with any notice of, or responsibility for, Keiran’s subsequent conduct. If the loan was ultra vires, the settled law in this country is that no advantage thereof can be taken by the debtor. Whatever the form of action or theory of recovery in different jurisdictions may be, the fact remains that this certificate secures the debt and is likewise enforceable. National Bank v. Matthews, 98 U. S. 621 [25 L. Ed. 188].

Concerning the other defense founded upon the rule of State National Bank v. Esterly, supra, and upon Secs. 11134 and 11141 G. C., it should be noted that the construction and application of this decision and these statutes as here invoked, would always defeat the very purpose in view when an ample margin of security has been exacted for a loan and where, to meet an unpaid balance thereof, resort to the security is had after its value is impaired by insolvency. We do not so interpret the statutes in question nor so apply the Esterly case.

The syllabus of that decision is as follows:

“When the property of an insolvent debtor, by order of court, is placed in the hands of a receiver to be administered upon for the payment of the insolvent’s debts, a creditor who holds collaterals taken as security for his claim, and upon which he has realized before a dividend is declared, is entitled to a dividend on only so much of his debt as remains after deducting the proceeds of the collaterals, and this sum may be ascertained at the time the dividend is declared, although the claim had formerly been proven and allowed for the full amount. ’ ’

Here it is not a residue of the principal debt which is sought to be enforced against an insolvent debtor. The purpose here is rather to subject to the payment of the residue of the principal debt the collateral pledged as security therefor. No reason appears why the stipulated margin of security, depreciated as it is, should now be wiped out because a part of the original debt has been paid. The plaintiff’s claim, we hold, should be allowed at its face, and on distribution it should be paid in the same proportion that the other claims are paid, not exceeding the debt secured. The appeal of the Assets Realization Co. will be consolidated with that of the Cleveland Trust Co. and judgment rendered as in the court below. In this form of action the judgment can not ordinarily embrace other matters than the allowance ; and we make no order concerning interest or the equities, if any, arising from the fact that other collateral was also pledged for this debt.

Marvin and Winch, JJ., concur.


author: WINCH, J.

text:
    ERROR — VARIANCE
    [Cuyahoga (8th) Circuit Court,
    February 14, 1911.]
    Marv'in, Winch and Henry, JJ.
    Mike C. Ancin et al v. John Ksenick et al.
    Judgment in Variance with Issues. Raised by' Allegations and Prayers of Pleadings Reversed. .
    ‘A judgment not in accordance with the allegations of the pleadings, the issues therein raised, or the prayers therein contained, will be reversed and the cause remanded for a new trial. ■
    Error.

      Eli E. Dosier and Lindley Fogg, for plaintiff in error.

      Falda, & Svaro, for defendant in error.
   WINCH, J.

The parties to this proceeding in error stand here in the relation opposite to that in which they stood below. There Ksenick and wife commenced their action against Ancin and others to recover damages for removal of lateral support.- The plaintiffs alleged that they own part of sub-lot 65 in. William Slade Jr’s, allotment of part of original Brooklyn township lot 87, fronting on West Seventh street, in the city of Cleveland, and that the defendants own a contiguous part of sub-lot 62 in the same allotment; so that the line between their properties is the common boundary line of said sub-lots.

The answer and cross-petition admits “that plaintiffs and defendants are owners of certain property on West Seventh street, Cleveland, Ohio, substantially as stated in petition, of plaintiffs,” and allege that plaintiffs’ building encroach upon defendants’ property. The reply denies such encroachment. The court below found for the plaintiffs upon both issues, awarding them'damages for the removal of lateral support, and holding thát their buildings do not éneroach upon the defendants’ land.

But these conclusions are obviously predicated and dependent, in part at least, upon the court’s further finding “that the northerly boundary of plaintiffs’ premises, as fixed by occupation for the statutory period, ’ ’ is not coincident with the boundary line between said sub-lots, and fálls within the limits of sub-lot 62, to which the defendants seem to have the paper title. This finding is utterly at variance with the allegations of the petition and the admission of the answer to the effect that the common boundary line of the two-sublots is also the boundary line of the two properties. Nor is there anything in the averments or the prayer of the pleading of either party to warrant such a judgment. It is quite possible that the evidence would sustain a judgment of this sort, if it could properly be rendered upon the issues tendered by the pleadings. If the plaintiff claimed such ownership by adverse possession of any land in lot 62, he should have alleged the facts in support of his claim and permit issue to be joined thereon.. As the pleadings stand the judgment in this behalf is not only not responsive to any issue joined, but is irreconcilably repugnant to the facts as averred in the pleadings. The judgment thus contrary to law, is re-, versed, and the parties may, if they so please join issue on this matter and try their case accordingly in the court of common pleas where the cause is remanded.

•Marvin and Henry, JJ., concur.


author: HENRY, J.

text:
    ASSESSMENTS — HIGHWAYS
    [Cuyahoga (8th) Circuit Court,
    February 14, 1911.]
    Marvin, Winch and Henry, JJ.
    Samuel J. Gibbs v. Cuyahoga Co. (Comrs.) et al.
    1. Assessment under Petition for Improvement of County Road not Enjoined for Variance in Width and Cost.
    Proceedings under a petition to the county commissioners “to improve said portion of said road by grading, draining and macadamizing the same for a width of sixteen feet, or by such other method, or with such other materials named in the statute hereinafter referred to, at a cost not to exceed $12,000 per mile, as your honorable board shall deem best,” petitioners agreeing that 25 per cent, of the cost and expense may be assessed against them, will not be enjoined though the improvement is made half again as wide, nearly twice as costly and 40 per cent, assessment is levied against the petitioners.
    2. Two Petitions for Improvement of Different Sections of Road not Consolidated for Single Improvement.

      Two separate petitions for the improvement of different sections of a state or county road, can not be consolidated by the county commissioners and heard as one for a single improvement, when there is nothing to indicate that they were so intended by the petitioners.
    Appeal.

      Thompson & Hiñe, II. J. Doolittle and J. A. Ford, for plaintiff.

      Walter D. Meals and John A. Cline, for defendant.
   HENRY, J.

This action tried here on appeal was commenced by an abutter upon that part of the Kinsman road, which extends from the easterly limits of the city of Cleveland to the center of Warrensville township, to enjoin the unpaid installments of an assessment levied on all the lands abutting on said portion of Kinsman road to pay for its improvement. The improvement as made was half again as wide and nearly as costly as that petitioned for, and forty per cent, of its cost was assessed upon adjoining property instead of only twenty-five per cent, as prayed for. Though some attempt is made to reconcile the width of the improvement with the width as petitioned for, it is evident that it is not the sixteen feet asked for, but less or more than that width, according to the view to be adopted as to what the improvement properly includes.

The filing of a petition by abutting land owners is of course jurisdictional, as the first step in proceedings by county commissioners to improve a state or county road, under the act “to supplement Sec. 2824 and 4637 R. S. of Ohio.” 94 O. L., 364; 95 0. L. 535.

The plaintiff here insists that the petitioners for this improvement imposed conditions as to its width and cost and the per cent, to be assessed, and that these conditions are likewise jurisdictional as limitations upon the authority of the commissioners. The petitioners prayed the commissioners “to improve said portion of said road, by grading, draining and macadamizing the same for a width of sixteen feet or by such other method or with such other materials named in the statute hereinafter referred to, at a cost not to exceed $12,000 per mile, as your honorable board shall deem best. Said petitioners hereby agreeing that your honorable board shall assess one-fourth of the cost and expense of such improvement upon the land abutting upon said road within the above named limits,” etc.

In Wamelink v. Cleveland, 40 Ohio St. 381, somewhat similar language contained in two petitions for the improvement of a part of Woodland avenue in said city was construed by the court. One petition prayed to have the roadway of said avenue paved with eight feet of stone on each side and twenty-four feet of wood between the stone; and the other prayed that the same portion of the same avenue “be paved with not less than thirty-two feet wood center treated with the Thilmany process, and balance stone, because it is very probable that a street railroa.d track will be laid in said avenue, and in that case a less width of wood center, would destroy the driving on wood, as illustrated on Superior street above Erie street.” The improvement was made as prayed in the first petition; but jurisdiction to make the improvement was acquired only by counting both sets of petitioners.

In considering Wamelink’s claim that not enough had petitioned for the improvement, as. made, to authorize the assessment therefor to be levied, the court, by Diekman, J., said at page 385:

“It is contended, in behalf of the plaintiffs in error, that the minority petition was coupled with an indispensable condition, that the pavement should be laid with the designated material in certain quantities, and not otherwise. We do not so understand the language or intention of the petitioners. The gist of their petition was, that stone and wood treated with the Thilmany process should be used in paving the avenue; and the petitioners indicated a preference for a pavement with ‘not less than thirty-two feet wood center.’ But they certainly did not, either expressly or by implication, design to convey the impression, that if their preference was not followed, they desired to be no longer regarded in the light of petitioners for a wood and stone pavement of any kind. Their language was addressed to the council rather by way of suggestion than as a condition, as is manifest from their endeavor to enforce their choice by the argument, that a street railroad track would probably be laid in the avenue, and in that ease, the effect of a less width of wood center than thirty-two feet, would be to destroy the driving on the wooden part of the road way. The effort to thus lead the judgment of the council was a virtual acknowledgment, to determine between the two methods respectively asked for by the signers of the' majority and minority petitioners. ’ ’

The language of the petition in the case before us is of the same character, embracing recommendations, rather than conditions, concerning the width and cost of the improvement and the percentage of the cost to be assessed.

There is, however, as suggested during the argument, a grave defect in the proceedings, that is not distinctly raised by the pleadings. The right to make this improvement and to levy the assessment therefor is predicated upon two petitions for the improvement respectively of two sections of the Kinsman road. One covers the portion extending from the easterly limit of the city of Cleveland to the westerly limit of Warrensville township. The other covers the portion extending from the westerly limit of Warrensville to the center of said township. Neither petition contains any reference to the other or any suggestion that the improvement prayed for is to connect with or become a part of any other or larger improvement. The record of the commissioners’ proceedings fails to show that the two petitions were considered jointly or that they were formally consolidated. They appear to have been tacitly treated as constituting bixt one petition. The proceedings from time to time are sometimes entitled “In re the petition of Thomas C. Skinner and others,” and sometimes “In re the- petition of- Charles Palmer and others.” A parenthetical comment in the transcript of the commissioners’ record, which is in evidence here, reads as follows: “Note: The. Skinner petition and the Palmer petition are the same.” In fact tixey are different petitions, and for different improvements; but they were together treated as one petition for one continuous improvement. We find no authority in the statutes for this procedure. Manifestly it might entail the most inequitable results.. If the improvement of one of these sections of the Kinsman road were proportionately more expensive than the -improvement of the other, by reason of inequalities in the nature and levels of the ground* or otherwise, an assessment for the cost of both sections levied either according to frontage or benefits upon the lands abutting thereon, will be more burdensome to some abutters than if the improvement for which they are assessed had been confined to their own section of the road, according to the petition filed therefor.

In other words, the cominissioners Were' without authority thus to combine the two improvements and to confuse the burdens of the two sets of abutters. The plaintiff may therefore take leave to amend his petition so as to allege these' fhets distinctly, and take a decree enjoining the collection of the install-' ments of said assessment that are still unpaid.

Marvin and Winch, JJ., concur.


text:
    ARBITRATION AND AWARD
    [Cuyahoga (8th) Circuit Court,
    February 14, 1911.]
    Marvin, Winch and Henry, JJ.
    Caldwell Piano Co. v. Garfield Realty Co.
    Award of Arbitration not Invalid because of- Immaterial Variations from Submission.
    An award of arbitrators will not be considered void because not final or responsive to the submission, if all the. items in dispute between the parties are embraced in it, with only a few immaterial exceptions, and a time is fixed by the arbitrators for the completion of everything directed by them to be done.
    Appeal.

      H. W. Bell and Horr & Lowenfhal,■ for plaintiff.

      R. JE. McKisson, for defendant.
   HENRY, J.

The plaintiff leased from the defendant the comer store room in the defendant’s block, the. Anisfield, located at the corner of East Ninth street and Huron road in the city of Cleveland, for a term of years commencing May 1, 1910. At that' date and for some time afterwards the building in question was still unfinished, and on July 12, 1910, the parties entered into a written contract by which the landlord agreed to perform certain items of work, so as to fit the premises for occupation by July 15, 191Q; failing which, the sum of $41 per day was to be forfeited by the landlord to the tenant for each day that the work should remain uncompleted after said date. The landlord also agreed to pay three items of $100, $110 and $115, respectively, for specified extra work performed by the tenant in fitting up said store room. The landlord further agreed to remit all claims for rent up to August 1,1910, and to refund to the tenant the sum of $416.17' previously deposited by the tenant as a guaranty. The tenant agreed to pay rent from August 1,1910, at the rate of $1,250 per month in advance. It was understood that the tenant might meanwhile enter into partial occupancy of the premises, and that its acceptance of keys to said storeroom should not constitute an acceptance under the lease, pending completion of the items of work to be done, a schedule of which was attached to the agreement.

On the following day the parties appointed H. C. Robinson and W. W. Davies “as referees to superintend and determine the manner of finishing the improvements under said agreement ; also the amount of rebate, if any, to be allowed under said agreement, and in all questions pertaining to the final adjustment of the lease now existing between” the parties. They, on their part, agreed to abide by the decision of these arbitrators.

Messrs. Robinson and Davies accepted this commission, and on August 5, 1910, rendered the following decision:

“In reference to the contract between the Garfield Realty Co. and the Caldwell Piano Co., dated July 12, 1910, under the terms of which we are to act as arbitrators, it is our conclusion as such arbitrators, that the interior of the premises in question became tenantable July 27, 1910, and therefore the Caldwell Piano Co. is entitled to a rebate from the Garfield Realty Co. of four hundred and ninety-two dollars ($492), (twelve days at $41 per day) as per the conditions of said contract.
“We also concluded that the Garfield Realty Co. is obliged to make such connections to the heating system in said premises as are necessary in order to furnish the Caldwell Piano Co. with heat throughout the entire year. It is also obligated to repair the sidewalk lights in such a manner that same will be free at all times from leakage of tar and water. This work of changing the heating system and repairing the sidewalk lights shall be done within a reasonable time after the demand of the Caldwell Piano Co.
“Our attention has been called to the unsafe condition of the glass store front facing East 9th street. It is our conclusion that this front ought to be put in a safe condition and at the expense of the Garfield Realty Co. The plans have been prepared by Mr. Wolf, architect for the Caldwell Piano Co., showing how the front can be repaired to put same in a safe condition and at the same time strengthen the frame work of the front sufficiently to support an awning. These plans portraying the change have been O.K.d by Mr. Caldwell on behalf of the Caldwell Piano Co. for the purpose of indicating to us that if the changes proposed, as set forth in the said plans, are made, the same will be satisfactory to the Cáldwell Piano Co. We are also in receipt of a communication from John Anisfield, representing the Garfield Realty Co., authorizing us to employ. Geo. A. Rutherford & Co. to make said changes in accordance with said plans at his expense. As such arbitrators we- have authorized Rutherford & Co. to make the proposed changes and have their agreement that said work will be completed on the evening of Tuesday, August 9, 1910. We further conclude that if said work of changing said front is not completed on the evening of Tuesday, August 9,1910, then the Caldwell Piano Co. shall be entitled to a rebate from the Garfield Realty Company of twenty-five dollars ($25) per day for every day from and after said time that said alterations remain unfinished.”

Meanwhile, the tenant paid the August rent in advance, but because of delays in the completion of thé work, which the arbitrators’ decision provided should thereafter be done, the tenant refused to pay the September rent and began this action. A preliminary restraining order was obtained to prevent the tenant’s dispossession for non-payment of the September rent, and since then the rent has been paid monthly into court, to await the conclusion of the litigation.

The plaintiff claims that the award is void because it is hot final, or responsive to the submission, in that it leaves two things open to future controversy, viz., the repair of the Store front, so as to make it safe, and the repair of the sidewalk lights, and furthermore, in that it fixes July 27, 1910, as the date when the premises become “tenantable,” and when, “therefore,” the forfeiture of $41 per day terminated.

From our examination of the'evidence it appears that, at the time of the award the sidewalk lights had been so repaired that they no longer leaked, but the arbitrators were apprehensive that they might thereafter develop leaks, and deeming it their duty to provide -against this contingency, they decided that such repairs as might become necessary in this behalf shotdd be promptly made at the expense of the landlord.

In regard to the Bast Ninth street front it appears that the submission contains no specific reference to this item of work to be done, but the safety of the glass front having been called in question, the opinion of an expert was sought and obtained by the arbitrators to'the effect that it was probably not. unsafe, but might properly, for the sake of due precaution, be further strengthened. At this juncture the question of providing some means of attaching awnings to the East Ninth street front arose for the first’ time, and thereupon the arbitrators sought and obtained the assent of their principals to an enlargement of the scope of their arbitration, .so as to include this matter, .and dispose- of it in connection with the matter of the East Ninth street glass front. By consent of the principals, the arbitrators', ás indicated in their award, employed George A. Rutherford. & Co. to perform the work in question, according to plans procured by the tenant and approved by the landlord.

This supplemental submission was partly oral and partly written, and we hold that the award is responsive thereto, notwithstanding the fact that the work was not fully completed at time the award was made.

Rutherford & Co., were one day late in completing .the work in the first instance, and the landlord admits a liability, .of $25 to. the tenant on this account. The tenant, however* claims and shows that the work as thus completed,, was not satisfactory, and that it was some two weeks more before it was left in workmanlike shape.

On the remaining question we hold that notwithstanding the use of the words “tenantable July 27, 1910,” by the arbitrators in their award, the evidence fails to show any items of work specified in the schedule attached to the original agreement of the parties which remained undone on that date, excepting the items already discussed and disposed of.

It follows that the provision of the submission in this behalf are fully responded to by the provisions of the award that “the Caldwell Piano Co. is entitled to a rebate from the Garfield Realty Co. of four hundred and ninety-two dollars ($492), (twelve days-at $41 per day) as per the conditions of said contract. ’ ’

This language embraces an adjudication of all the items in dispute between the- parties with the immaterial exceptions hereinbefore mentioned.

We have examined the decree'rendered in the court below and find it so exactly in accordance with our own views that we enter a similar judgment here.

Marvin and Winch, JJ., concur.


text:
    TAXES AND TAXATION
    [Cuyahoga (8th) Circuit Court,
    March 20, 1911.]
    Marvin, Winch and Henry, JJ,

      Cleveland-Cliffs Iron Co. v. James P. Madigan, Treas.
    1. Shares in Foreign Corporation Owned by Foreign Corporation .Doing Business in State, not Taxable.
    Shares of stock in a foreign corporation owned by another foreign corporation doing business in this state are not taxable, notwithstanding the certificates evidencing such ownership are physically in the custody of officers of the latter corporation at a branch office, maintained within the confines of the state.
    2. Shares in Joint Stock Association of Michigan not Distinguished from Corporate Shares.
    Shares in a joint stock association under the laws of Michigan, for purposes of taxation under the laws of Ohio, are not to be distinguished from shares in a corporation.
    Error.

      Hoyt, Dustin,- Kelley, McKeehan'& Andrews, for plaintiff in error.

      N. E. Warwick and Walter D. Meals, for defendant in error.

      Affirmed no opinion, Madigan v. Cleveland-Cliffs Iron Co. 88 Ohio St. 533.

   HENRY, J.

This proceeding in error is brought to reverse a judgment of $278,787.30 recovered at the January, 1911, term of the Cuyahoga common pleas by the treasurer of said county against the Cleveland-Cliffs Iron Co., for arrears of taxes alleged to be due for the years 1900 and to 1905 inclusive on shares of stock then owned by said corporation in certain Michigan companies. There is no controversy about the facts.

The Cleveland-Cliffs Iron Co. was organized under the laws of West Virginia as a “nonresident domestic corporation;” with “its principal office, or place of business, in the city of Chicago, county of Cook, state of Illinois. ’ ’ By proper proceedings, in February, 1904, the articles of incorporation were so amended, “That the place of the principal office of the Cleveland-Cliffs Iron Co. be and hereby is changed from the city of Chicago, county of Cook, state of Illinois, to the City of Ishpeming, county of Marquette, state of Michigan.” By one of its by-laws said company’s board of directors were empowered “to establish a branch office of the company in the city of Cleveland, county of Cuyahoga and state of Ohio, and at such other place or places as they may see fit, and at any such branch office when established all meetings of said board whether special or regular, and of the executive committee and (of the stockholders can be held.” In July, 1891, a Cleveland office was accordingly established at Nos. 4 and 5 Mercantile Bank Building, Cleveland, Ohio, and that office became and was in fact during all the period in controversy, the main office of the company, where its principal office business was transacted, and its corporate meetings were held, its records kept, and where the certificates of stock owned by it in other non-résident companies were kept in the custody of its proper officers. The principal offices named in the articles of incorporation and the amendment thereto were only nominally such, but the company owned and operated large physical properties in Michigan. Under West Virginia statutes “domestic corporations are subdivided into two classes, resident and nonresident. A resident corporation is a domestic corporation whose principal place of business and chief works (if it have chief works) are located within this state, a nonresident corporation is a domestic corporation whose principal place of business or chief works is located without this state.” Nonresident domestic corporations of West Virginia are required to designate a statutory agent, resident of West Virginia, upon whom all process can be served, and an annual license fee, higher than that imposed upon resident domestic corporations, is exacted of them by the laws of that state.

The distinction thus recognized by the statutes of West Virginia is unknown to our laws; but the corporate character of the plaintiff in error, and its status in Ohio as a foreign corporation, duly authorized as such to do business in this state, subject to our statutes regulating foreign corporations which seek to do business here, must be acknowledged. Indeed it was sued in the original action in its corporate capacity, and if, as a nonresident domestic corporation of West Virginia, it had been organized with its principal office and place of business expressly located in Ohio, it would still have been, so far as our laws are concerned, a foreign corporation if corporation at all. Second Nat. Bank v. Hall, 35 Ohio St. 158; Newburg Petroleum Co. v. Weare, 27 Ohio St. 343; Hanna v. International Petroleum Co., 23 Ohio St. 622.

Whether or not the plaintiff in error is exceeding its corporate powers in maintaining what is in fact its principal office in Ohio, contrary to the provisions of its charter, is a question not presented for our decision upon this record. Deriving whatever corporate powers it has or may justly exercise, from the laws of another state, it can not be deemed domestic to Ohio. Nor need we speculate as to what its status in that behalf may be in West Virginia and Michigan, in view of the anomalous provisions of the West Virginia laws, which it has invoked to become a nonresident domestic corporation of the former state, and in the latter a resident foreign corporation. These expressions are doubtless contradictions in terms, so far, at least, as the laws of Ohio are concerned. A domestic corporation can not, as such, become a nonresident of this state (State v. Taylor, 25 Ohio St., 278). Neither can a foreign corporation, as such, have a legal residence in this state (Lander v. Burke, 65 Ohio St. 532, 542 [63 N. E. 69]; Humphreys v. State, 70 Ohio St., 67 [70 N. E. 957; 65 L. R. A. 776; 101 Am. St. 888; 1 Ann. Cas. 233]). In the latter case, the benefit of the statutory exemption of public charities from the Ohio collateral inheritance tax, was denied to certain foreign eleemosynary corporations, which maintained benevolent institutions in this state, because being incorporated under the laws of other states, they were legally nonresidents of Ohio, and hence not within the language, “any institution in said state for purposes of purely public charity, or other exclusively public purposes. ’ ’ Price J., in the opinion of the court, at page 78 says:

“It is not a new proposition, that the home of the corporation is the state of its incorporation and when so incorporated under the laws of a state selected for that purpose, it has also selected its abiding place, and no longer can be recognized as homeless, or as abiding in every state where the}7’ have agencies carrying forward their work of benevolence and charity.” He quotes Mr. Justice Fields’ language in Paul v. Virginia, 75 U. S. (8 Wal.) 168, 181 [19 L. Ed. 357]:
‘ ‘ The corporation being the mere creation of local law, can have no legal existence beyond the limits of the sovereignty where created. As said by this court in Bank v. Earle, ‘It must dwell in the place of its creation, and' can not migrate to another sovereignty.’ ”

Foreign corporations exercise their corporate powers in jurisdictions other than those of their creation, solely by the comity of states, which is presumed to suffer such exercise where it is not denied or qualified by law. The plaintiff in error, thus doing business in Ohio as a foreign corporation, must therefore be deemed to be a nonresident of this state, notwithstanding that its chief office and place of doing business is in fact here.

That the plaintiff in error is a nonresident of this state becomes important in the ascertainment of the situs for taxation of its intangible personal property, to-wit, Michigan stock.

Section 2744 B. S. (See. 5404 G. C. et seq.) provides:

“The president, secretary and principal accounting officer of every company, except banking or other corporations whose taxation is ■ specifically provided for, for whatever -purpose they may have been created, whether incorporated by any law of this state or not, shall list for taxation, verified by the oath of the person so listing, all the personal property, which shall be held to include all such real estate as is necessary to the daily operations of the company, money and • credits of such company or corporations within the state at the actual value in money, in manner following. ’ ’

Section 2731 R. S. (See. 5321 G. C.), provides:

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

In Grant v. Jones, 39 Ohio St. 506, which construes this section, it was held that:

“Credits owned by a nonresident of this state are not taxable here unless they are held within this state by a guardian, trustee, or agent of the owner by whom they must be returned for taxation.”

In Bradley v. Bauder, 36 Ohio St., 28, 35 [38 Am. Rep. 547], it was held that the situs of shares of stock,

“for the purposes of taxation, when not otherwise provided for by statute, is that of the domicil of the owner. That shares of stock may be separated from the person of the owner, by statute, and given a situs of their own, was held in Tappan v. Merchants’ National Bank, 19 Wall 490. But when not so separated, that their situs follows and adheres to the domicil of the owner is supported by a great weight of authority. ’ ’

In Hubbard v. Brush, 61 Ohio St., 252 [55 N. E. 829] construing the provision of Sec. 2746 R. S. (Sec. 5372 G. C.), that “no person shall be required to list for.taxation any share or shares of the capital stock of any company, the capital stock of which is taxed in the name of such company,” it was held that a resident of Ohio is not taxable upon his stock in a foreign corporation, all of whose tangible property is situated and taxable in Ohio, and whose other property, consisting wholly of credits derived from its business transacted here, is under the provisions of Sec. 2744 (5404) above .quoted, likewise taxable in Ohio. It was observed in that case, by Bradbury, C. J., at pages 262-4:

“that the corporation whose stock defendant in error held, was a foreign corporation, but that all of its property was situated within this state and its business wholly conducted herein. Whatever situs, in fact, its choses, in action possessed, was also herein, for it appears that it maintained no office and did no business whatever in West Virginia, the state by which it was created, but that its office was in this state where its property was situated and its business transacted. And whether these choses in action consisted of promissory notes, book accounts or other evidence of indebtedness, they must be presumed to have been kept in its office in this state. However, notwithstanding all this, doubtless the legal situs of this intangible property for most purposes, was that of the residence of the corporation, which, in law, is within the state by whose authority it was created.
“Does that situs for all purposes adhere to the corporate residence, or many choses in action, having the relation, connection and situation in which these were found, be held to possess such a situs in this state as will clothe the state with jurisdiction over them for taxation? The state attempts by See. 2744, Be-vised Statutes, to assert and exercise such power of jurisdiction.
“We perceive no reason for denying to the state the power asserted by this section. If men choose to resort to another state or county for authority to organize a corporation for the purpose of engaging in business in this state, or if that was not their original purpose, choose afterwards to plant themselves herein, and in either case transact the corporate business and hold the corporate property wholly within our borders and enjoy the protection of our laws, it is only just and reasonable that its property should be subject to taxation herein as fully as if its organization had been effected under our own laws, and the right of taxation should not be defeated nor limited upon the ground that for some other purpose the situs of a part of its property should be regarded as being in the state or country where the corporation was organized.
“Where foreign corporations voluntarily bring their property and business into this state to avail themselves of advantages found here which they believe will enhance the probabilities that the business they intend to pursue will be profitable, they should not be heard to complain of laws which tax them as domestic corporations are taxed by the state. We hold, therefore, that the provisions of Sec. 2744 (5404), which make it the duty of foreign corporations to list for taxation in this state, their choses in action where they are held within the state and grow out of the business they conduct therein, is a valid exercise of the taxing powers vested in the state.”

The second paragraph of the syllabus accordingly declares, concerning the taxability of the “credits of such company or corporation within the state, ’ ’ that:

‘ ‘ Choses in action, whether book accounts, promissory notes, or the like, or foreign corporations that are kept in this state and arise out of the corporate business transacted here, are subject to taxation under the provisions of Sec. 2744 R. S.”

Construing Secs. 2731, 2744 R. S. (Secs. 5328, 5404 G. C.), and cognate sections, the U. S. circuit court of appeals of this circuit, in Western Assurance Co. v. Halliday, 14 O. F. D. 73 (126 Fed. 257), in its opinion by Lurton, C. J., says, at page 79 (262):

‘ ‘ When the several sections are read and construed together, it is obvious that the intent and purpose of the Legislature is to subject to taxation every form of personal property having a situs in this state, including such forms of personal property as money, credits, bonds, and stocks, provided only that these latter are held or owned by a person residing in the state. If they are owned by a person residing in Ohio, they are subjected to taxation without regard to the place of their deposit or lodgment, but if not owned by a person residing in the state, their taxability is made to depend upon their being ‘held’ in the state by some one residing therein, who holds and controls same for the nonresident owner as agent or otherwise. In the one case Ohio exercises its power to tax by reason of the presence of the property within the state, and in the other by virtue of the domicile of the owner and the saying lMoT)ilia sequuntur personam.’ ”

In that case municipal bonds, deposited by the Western Assurance Company, incorporated under the laws of the Dominion of Canada, with the superintendent of insurance of the state of Ohio, pursuant to the provisions of See. 3660 R. S. (Sec. 9565 G. C. et seq.) and registered in his name, were held to be taxable in Ohio as the personal property or credits of a foreign corporation, held in this state.

In the present case, the stocks sought to be taxed are held by the corporation itself, and not by a trustee or depositary who resides in this state and holds the property for a nonresident. Our statutes make no distinction between the corporation and its proper officers in this respect. Under See. 2744 R. S., the corporation is required to make its returns for taxation by and through the president, secretary, and principal accounting officer, who are thus deemed to act for the corporation. None of these corporate officers, are required in that capacity, to make return of the taxable corporate property “as agent or attorney, or on account of any other- person or persons, company or corporation,” under Sec: 2734 E. S. (Sec. 5730 G-. C.), but directly for and in the name of the corporation itself, under Sec. 2744 E. S. The stocks in question are held and owned by and in the name of the plaintiff in error, and by no one else. It holds the legal title and the certificates are issued to its name. Municipal bonds, especially when registered, in the name, not of the nonresident owner, but of the resident agent, trustee, or depositary, and actually lodged with and held by him in this state; and credits arising here out of business transacted by a nonresident corporation doing business in this state, are, as we have seen, properly deemed to have a situs for taxation here. But it would be enlarging the meaning and scope of our statutes, beyond anything warranted by their language or by any authoritative construction thereof laid down in the cases cited, or elsewhere, to hold that foreign stocks which are owned and held by a foreign corporation, or other nonresident, doing business in this state, and which are in no way derived from the business transacted here, are nevertheless taxable in Ohio, under our present laws, simply because the certificates evidencing such ownership are physically in the custody of their owner within the confines of the state. In no proper sense can it be said that the property evidenced by such certificates of stock in foreign corporations, who$e property is located wholly without the borders of the state is within the state, unless the owner of such stocks resides here. And as already observed, the plaintiff in error, being a foreign corporation, is in the present state of our laws conclusively presumed to be a nonresident of this state.

As regards the shares of the Munising Paper Co., which is a company in the nature of a joint stock association, organized and doing business in the state of Michigan, we think they are not to be discriminated for the purpose of this case from the shares of stock owned by the plaintiff in error in Michigan corporations, strictly so-called. Adams Express Co. v. State, 55 Ohio St. 69 [44 N. E. 506].

The judgment of the court of common pleas, being manifestly contrary to law, is reversed, and final judgment is here rendered for the plaintiff in error.

Marvin and Winch, JJ., concur.


text:
    BILLS AND NOTES
    [Cuyahoga (8th) Circuit Court,
    March 20, 1911.]
    Winch, Henry and Marvin, JJ.
    A. R. Linn Co. v. C. T. Denly.
    Drawer, as Endorsee, Can Not Hold Payee as Endorser.
    Under the negotiable instruments act, the drawer of a bill, who subsequently becomes its holder, can not hold the payee on his. endorsement.
    Error.

      Wing, Myler & Turney, for plaintiff in error. .

      A. A. & A. H. Bemis,.iov defendant.in error.
   HENRY, J.

The parties stand here as they did below, where the plaintiff sued on the following bill of exchange, which it acquired after maturity, from the drawer, in whose shoes therefore it stands:

“$67.96. Cleveland, Ohio, Sept. 10,1908.
“September 30th, after date, pay to the order of C. T. Denly, Sixty-Seven and 96-100 dollars, payable at the Garfield Savings Bank, Euclid Avenue. Value received, and charge the same to the account of
A. R. Linn, Bro. Agt:
“To the Denly Company, Cleveland, Ohio.
“Indorsements:
“Accepted: The Denly Company, ■ By C. T. Denly, Prest. C. T. Denly.”

The petition alleges that Linn, a sugar broker, in negotiating a sale of that commodity to the Denly Co., refused to make the sale unless the prices were secured by the personal credit of the defendant here. The transaction was accordingly completed in the left handed manner indicated by the bill of exchange above copied. The Denly Co. having become insolvent, the plaintiff seeks to hold the defendant as a party secondarily liable on the bill of exchange.

The action was strictly upon the instrument, and the question is whether the drawer of a bill, who becomes the holder, can hold the payee on his endorsement, as a party liable secondarily, or at all.

Under the plain provisions of Secs. 8155, 8166 and 8226 G. C. (Secs. 3172v, 3173/ and 3175 R. S.) we are perfectly clear that he can not. When a bill makes a circuit and comes back into the hands of a prior party, the intervening parties are discharged of liability. Here Linn, the drawer, subsequently became the holder. Denly is an intervening party, and as such was discharged.

This may not have been the intention of the parties; but their intention ■ can not override the plain provisions of our Negotiable Instruments Act, in actions brought upon such instruments.

Judgment affirmed.

Winch and Marvin, JJ., concur.


text:
    ASSIGNMENTS
    [Cuyahoga (8th) Circuit Court,
    March 20, 1911.]
    Marvin, Winch and Henry, JJ.
    S. H. Cohn Co. v. Hermine A. Simon.
    1. Rents Severable from Reversion, Vesting in Assignee.
    The right to receive rents due or to become due under a lease may be severed from the reversion and by assignment become vested in the assignee.
    2. Assignee of Rents not Answerable for Failure to Make Repairs.
    The mere assignee of the rents, though she has agreed with her assignor to make necessary repairs, is not answerable to the tenant for her failure to make such repairs.
    Error.

      Hidy, Klein & Harris, for plaintiff in error.

      W. D. Meals and Sanders & Sanders, for defendant in error.
   HENRY, J.

The parties to this proceeding in error stand in the relation opposite to that in which they stood below. There Hermine A. Simon, as assignee of the rents of a certain block, sued the Cohn Co., which is the assignee of a lease of a certain store in said block, in an action for rent. The defendant, by cross-petition counterclaims for damage to its goods in said store by water from leaky pipes in á part of the block retained and controlled by the lessor. The defendant in error’s right to the rents was acquired before the damage to plaintiff in error’s goods occurred.

A demurrer to the petition was overruled and recovery on the counter-claim was denied by exclusion of certain evidence and peremptory charge of the court.

Neither party to the suit is an original party to the lease.

In support of the demurrer it is agreed that there is privity neither of estate nor of contract between the parties and Smith v. Harrison, 42 Ohio St. 180, is cited to show that:

‘ ‘ The foundation of the action by the assignee of the reversion against the assignee of the leasehold, is the privity of estate between them. The principle is that the latter shall not enjoy the former’s property without the payment of rent.”

And, again, at page 185:

“The right to sue for and recover rents follows the fee simple estate, and the action therefor must be in the name of the owner of the fee at the time the rent accrues. ’ ’

We discern no reason, however, why his right may not be severed from the reversion and by assignment become vested in the assignee. The books are full of such cases of severance.

The rulings on the cross-petition were likewise correct. True, the defendant in error, as assignee of the rents, had expressly agreed with her assignor to make necessary repairs; bnt that agreement was solely for his benefit, and he, as the reversioner, is alone answerable for breach of duty to his tenant. The defendant in error, as assignee of the rents, assumed no duty to the plaintiff in error.

Judgment affirmed.

Marvin and Winch, JJ., concur.


text:
    NEGLIGENCE
    [Cuyahoga (8th) Circuit Court,
    March 24, 1911.]
    Marvin, Winch and Henry, JJ.
    Foster City Provision Co. v. Adolph Blaha.
    Negligence Inferred from Proof of Accident to Employe Through Defects in Machinery, Though Doctrine of Res Ipsa Loquitur not Applicable.
    In the case of an injury to plaintiff’s arm by the sudden and unexpected descent of the plunger in a sausage machine, although the doctrine of res ipsa loquitur does not apply, negligence on the part of the defendant employer may be inferred from proof of facts pointing to insufficiency, in construction or repair of the machine, though several' distinct defects are alleged and the proof points as strongly to- one of them as the cause of the accident as any other.
    Error.

      Seaton & Paine, for plaintiff in error.

      W. B. Beebe and A. W. Lamson, for defendant in error.
   HENRY, J.

A former proceeding in error, No. 4663, growing out of the same original action, was decided by this court June 28, 1910. The' opinion by Marvin, J., shows that Blaha had then recovered a verdict and judgment for damages for personal injuries, upon substantially the same allegations and evidence of negligence as are presented upon this record. That judgment was reversed, upon the authority of the Baltimore & O. Ry. v. Lockwood, 72 Ohio St. 586 [74 N. E. 1071] “for error on the part of the court in failing to properly state to the jury the issues in the case.” The opinion concludes:

“An examination of the record fails to disclose any other reversible error. ”

In the present proceeding a re-examination of the evidence is invoked, by the claim of “error in applying the doctrine res ipsa loquitur to this case, and in submitting the case to the jury,” as well as by the request “for final judgment in this court. ”

"Without encumbering this opinion with an exhaustive analysis of the mechanical details, the clear and candid statement of the facts, presented in the admirable printed brief of the plaintiff in error may be q.uoted:

“Plaintiff was a sausage maker in the employ of defendant. He lost his right arm below the elbow by reason of an injury received while working at a sausage, stuff er.
“Said sausage stuff er consisted of two parts, the upper part being a steam cylinder in an upright position. The lower part a sausage cylinder, open at the top, and' situated directly under the steam cylinder, and about two feet below it.
1 ‘ The steam cylinder was equipped with an ordinary piston rod and piston head. The piston rod was long enough to .reach to the bottom of the sausage cylinder below. On the lower end of the piston rod was circular piece of iron that just fitted into the sausage cylinder.
“Steam was admitted into the steam cylinder through a valve box on its side at about its center. This valve box was equipped with an ordinary sliding valve. The valve was connected with an iron handle by a valve stem and two iron rods, the handle and rods forming a system of levers by which the valve was moved up and down.
“In the operation of the machine the sausage cylinder was filled with sausage meat. The handle would then be pulled down, this would slide the valve so that steam would enter the upper end of the steam cylinder and be shut off from the lower end thereof. The steam pressure would drive the piston rod downward, the circular iron plate at the end. of the piston rod would enter the sausage cylinder, and the pressure exerted, by the steam would force the sausage meat out of a spout at the bottom of the sausage cylinder into cases.
“When the sausage cylinder was emptied, the handle would be pushed up, this would slide the valve upward and reverse the steam pressure, steam would be shut off from the upper end of the steam cylinder and be admitted to the lower end of the piston rod, and its attachments would be driven upward, and be retained in position by the pressure of the steam below the piston head. The sausage cylinder would again be filled with meat and the operation repeated.
“This sausage staffer thus operated just as does a steam engine by the alternate changing of the steam pressure from one end of the steam cylinder to the other, by means of a sliding valve, the valve being moved not automatically as in a steam engine, but by the raising and lowering of this handle by the operator of the staffer.
“He had finished stuffing a cylinder of sausage meat, he pushed up the handle to its full extent, and the piston rod and its attached circular iron plate, termed’ by the witness, ‘the plunger’ went up and was retained in position as usual. He put his right arm and hand into the sausage cylinder to remove a piece of skin, the plunger remained up for about a minute, when without his touching a handle or doing anything to put the machine into operation, a reversal of the steam put the machine into operation, and the plunger was driven downward, his arm was caught between the plunger and the top of the sausage cylinder, and so injured as to require its amputation.”

The petition’s allegations of negligence on the part of the defendant below are that it

“furnished and provided a second-hand machine in a worn-out and defective condition; that the piston head and steam cylinder of the same was so worn, defective and out of repair that the steam was permitted to escape out from the lower to the upper portion of said cylinder. That the valve, connecting parts, pipes, reversing mechanism and appliances, including said lever, the operation of which caused said piston head and plunger to move up and down, were so worn, defective and out of repair as not to properly discharge and perform the duties of the same in controlling the operations of said piston and said plunger in said cylinders, and that all the parts and appliances connected with said steam cylinder and with said machine, which controlled the operation of the same as herein described, were so worn, and defective and out of repair as to be unsuitable for use, unfit and unable to perform the duty of holding and maintaining said plunger so as to enable this plaintiff, on the occasion of the said injury, to safely place his hand and arm in the said meat cylinder as he was required to do in the operation of said machine; that said machine and all of its parts herein designated had been in such condition for a period of many months prior and down until the time of the plaintiff’s injury herein described and all of which was well known to the said defendant. That the said defendant, well knowing the wornout, second-hand condition of said machine and defective condition thereof, made or caused to be made no inspection thereof at any time for six months prior and down until the time of said plaintiff’s said injury and during all of said time negligently and carelessly allowed and permitted said machine to be and remain in said wornout, defective and dangerous condition. That the said defendant well knowing the wornout and defective condition of said machine and its appliances as herein described caused to be used on the occasion of the plaintiff’s injury, an excessively dangerous high steam pressure. Plaintiff says that by reason óf said defective machine, as herein described and of the use of said high dangerously excessive steam pressure, said piston head and said plunger connected therewith as aforesaid, was caused suddenly to drop and this plaintiff was injured thereby as hereinbefore described.”

The defendant below sought to analyze, or separate, these averments of negligence into half a score of independent items; and, by requests presented in writing before argument, it asked to have each item, in turn, eliminated from the case, for want of evidence to support the same. These requests were all denied, and we are not prepared to say that the court erred in thus ruling. The evidence in support of the allegations of negligence, was not massed directly upon one or more of these items. It consisted of many details and circumstances which the jury, in performing their function .of drawing inferences of fact, were invited to fit into a mosaic, corresponding to the allegations of negligence in the petition. The items were not entirely independent, but to some extent, at least, were mutually related. Much of the evidence, bearing upon one, bore also directly or indirectly, positively or negatively upon others.

Complaint is made, however, that such negative proof of negligence is nothing else than the application of the doctrine of res ipsa loquitur, and that this is inadmissible on this sort of a case. Generally speaking it is true that negligence is not to be inferred merely from the happening of an accident. But this record discloses evidence, positive as well as negative, on the subject of the defective condition of this machine.

In order to demonstrate its claim that no negligence was proved against it, plaintiff in error reclassifies, from the evidence offered by the plaintiff below, the “actors which kept the handle up when pushed up ” as follows:

“(a.) The friction at the various points' of the lever formed by the handle and the rods that connected it with the valve stem.
“(&.) The friction of the packing around the valve stem.
“ (c.) The pressure of the steam on the back of the valve itself.”

The plaintiff in error contends that, as shown- by the evidence, any one of these factors alone, except perhaps the last, would have sufficed’ to keep' the handle up. We note, however, the positive testimony of the plaintiff’s witness, William A. Toole, on page 160 of the bill of. exceptions, as follows:

* ‘ Q. How is this valve made as to being smooth or not, on its face? A. When it’s right it looks like a looking-glass when it is not out.
‘ ‘ Q. Now,- would' the pressure of the steam alone on that valve, when the lever is up, be sufficient to hold the lever in position and maintain the valve without moving? A. I don’t think it would.
“Q. And can you in practice tighten up the nuts to the various — and the bolts holding these various members together, so as to hold the lever up and valve in place, and have it so the lever would- work'practically in the operation of the machine? A. Yes sir.”

At page 394, defendant’s witness, William McClellan, the engineer, at its plant, when Blaha was hurt, testifies:

■ “Q. What do you say it is that holds the lever up when you put it up ? A. Why, the. steam- pressure holds it up; helps to hold it up.” -

At page '396 he testifies further:

“Q.. In this machine, before Blaha was hurt, did the bolts that hold the various members of the lever together, have anything to do with keeping the lever up when it was put up ? A. Why, there was a little friction there, not much.
“Q. Now in packing that stuffing box what, if anything, before Blaha was hurt did- the stuffing box have to do with keeping the handle up, I mean the condition the handle was in? A. Why, there was a little friction on the rod, that is all.
“Q. A little friction oh the rod? A. A little friction on the rod. That stuffing box just pulled in there tight enough to hold the steam from escaping.”

From all this, and other similar evidence, it appears that gravity all the while tended to cause the handle to drop and start the machine, and the combined friction of the lever points, of the valve stem and of the valve itself, was all that kept it from falling. From time to time the bolts or nuts at the lever joints had to be tightened. From time to time the valve stem had to be repacked to prevent the escape of steam. Failing the usual slight friction at these points, the sole remaining reliance became the steam pressure on the valve itself, which Toole testified was not enough to hold the handle up.

True, the engineer says that the lever joints were tight at the time of the accident, and there is perhaps no direct and positive evidence of any looseness at either the valve stem or the-lever joints. But-it is evident that the engineer never depended upon the “slight friction” at these points as having any proper office or effect in keeping the handle up. He relied chiefly upon the steam pressure on the valve, if not wholly upon it. Such reliance appears to have been of at least doubtful warrant. The whole mechanism was ill-advised. Once before and once after the accident whereby Blaha was injured, similar or kindred incidents demonstrated the dangerous character of the mechanism; and the former of these occurrences tended to affect the owner with notice thereof. In so far as they were otherwise explainable, cross-examination could and did bring out the distinguishing facts. We hold that evidence of these incidents was admissible for the purposes named, to which, in fact, their effect was properly limited at the time the objections thereto were' finally overruled.

It is claimed, however, that the application of the res ipsa loquitur rule is squarely raised by the fifteenth request of the defendant below to charge before argument. That request -was refused- by the court and is as follows:

‘ ‘ The testimony of the plaintiff that the handle and plunger of this machine came down without plaintiff doing anything to cause them to come down does not raise a prima facie presumption of negligence on the part of defendant in the respects claimed in the petition or in any respect.
“It devolved upon the plaintiff to trace the fault for his injury to the defendant; plaintiff must have presented some affirmative evidence from which there may be a logical inference of negligence, in addition to the mere unexplained descent of the plunger and handle. And unless plaintiff has done so, your verdict must be for the defendant. ’ ’

The latter part of this request is doubtless correct, and the former part would also be correct if the testimony referred to therein were considered alone. So far, however, as the terms of the request disclosed, the testimony was not to be taken by itself, but in connection with all the other circumstances of the case. In that setting, it might well be inferred by the jury, as a matter of fact, to raise the presumption, or inference of negligence which the request affirms it would raise. The request was therefore misleading and was properly refused.

A similar vice lurks also in the eighteenth request, which was refused. The incident of the plunger’s fall some time after the accident, is doubtless explainable as indicated in said request; but, taken with the other circumstances brought out in evidence, it might well have been thought by the jury to show that the friction at other points than the valve itself was insufficient to keep handle and plunger from falling. And whether the mere pressure of steam on the valve to hold the handle and plunger was sufficient, when the steam was on, was a matter concerning which the other evidence conflicted. It is not necessarily true, therefore, that a descent of the plunger under such circumstances is no “evidence of any defect in the machine. ’ ’

The general charge is complained of in two respects: first, in that it impliedly authorizes the jury to apply the res ipsa loquitur doctrine, and, secondly in that it expressly authorizes the jury to infer that excessive steam pressure caused the plunger to fall. The court did correctly charge that proof of negligence may consist of ! ‘ proof of facts from which negligence may reasonably be presumed;” and he thereafter alluded to the inference, or presumption, of negligence, which may arise “from physical facts alone,” pointing “to insufficiency in the construction or repair of machinery as the producing cause of the accident.” Such language does not mean that an inference of defendant’s negligence may be drawn from the mere fact of this accident to plaintiff in and by the plunger falling upon his arms, but it does properly intimate that the dangerous character of the mechanism might be inferred from the happening of other similar events, and from this, together with other direct or circumstantial evidence, negligence might be inferred.

As to the possibility of causal relation between high steam pressure and the plunger’s fall, in such wise as to injure the plaintiff below in the manner complained of, we are not clear, from all the evidence, that, under some circumstances, as, for example, a leakage of steam in the cylinder, high pressure might not suddenly and forcibly have shifted the valve of, at least, have accelerated the descent of the plunger so as to catch, or more severely injure, plaintiff’s arm. As the witness Wiegand says, at page 94, it would shoot the plunger down like lightning —get more pressure on.”

Finding none of the assigned errors to be well .taken, we hold that the judgment must be and it is affirmed.

Marvin and Winch, JJ., concur.


text:
    CRIMINAL LAW
    [Cuyahoga (8th) Circuit Court,
    March 24, 1911.]
    Marvin, Winch and Henry, JJ.
    Antonio Campanario v. State of Ohio.
    Proof of Guilt beyond Reasonable Doubt not Required If Jurors “are Reasonably Certain of Guilt."
    In a prosecution for stabbing with intent to wound a charge as follows, “A man put upon trial here charged with a crime, starts out in the trial with the presumption in his favor that he is not guilty. That presumption must be overcome by evidence satisfying the jury to a reasonable certainty of guilt. You do not have to be absolutely certain of guilt in order to find a party guilty; you must be satisfied in such degree that you have no reason to doubt his guilt. Your minds must be so satisfied of his guilt that your conscience would be satisfied with a verdict of guilty; that you would feel you have not made any mistake. You could not be absolutely certain; that is not required. If you have an honest difficulty after you have considered the evidence; an honest, conscientious difficulty in believing the defendant guilty, then you ought not to convict. If you are reasonably certain of his guilt, then you ought to convict. You are not to have any hesitation about convicting if the evidence warrants it You ought not to convict unless the evidence does warrant it," while not commended, is not, as a whole, incorrect
    Error.

      F. N. Ewing, for plaintiff in error.

      John A. Cline, for defendant in error.
   HENRY, J.

Campanario was convicted of maliciously stabbing one Michael Degidio with intent to wound. The prosecuting witness testified:

“Q. How soon after you fell to the floor was it he stabbed you? A. It was in the same moment; he slapped me, knocked me down and jumped on top of me and stabbed me.”

The state’s witness Rafael Picazzo testified that Campanario “slapped Degidio in the face, hit him in the face, and he fell and he got on top of him. ’ ’

At p. 45 the following colloquy is set forth:

“Q. State whether or not between the time of the slap and the time Petriacco took him away, Campanario was on the floor at any time?
“State objects. It has not been stated he was on the floor but that he knocked him down and stabbed him. We don’t claim he was on top of him.
“Defendant: The testimony of Rafael Picazzo was he was on top of him.
“Court. If the state doesn’t claim he was on the floor there is no need of these questions.
“State. We don’t claim that.”

The question was thereupon abandoned. No exception was reserved. It is claimed, however, that the state’s disclaimer here is necessarily a confession of the defendant’s innocence, since the evidence shows that if he stabbed Degidio at all, he did so while on top of him. We think this does not necessarily follow. “On the floor” is not the same as “on top of” Degidio. Even if it were, the ultimate fact of stabbing, etc., was for the jury.

At page 79, the court charged:

‘‘A man put upon trial here charged with a crime starts out in the trial with the presumption in his favor, that he is not guilty. That presumption must be overcome by evidence satisfying the jury to a reasonable certainty of guilt. You do not have to be absolutely certain of guilt in order to find a party guilty; you must be satisfied in such degree that you have no reason to doubt his guilt. Your minds must be so satisfied of his guilt that your conscience would be satisfied with a verdict of guilty; that you would feel you have not made any mistake. You could not be absolutely certain; that is not required.
“If you have an honest difficulty after you have considered the evidence; an honest, conscientious difficulty in believing the defendant guilty, then you ought not to convict. If you are reasonably certain of his guilt, then you ought to convict.
“You are not to have any hesitation about convicting if the evidence warrants it. You ought not to convict unless the evidence does warrant it.”

Without qualification, the sentence, “If you are reasonably certain of his guilt, then you ought" to convict,” does not require proof of guilt beyond a reasonable doubt. “Reasonably” in the connection in which it is employed, naturally means tolerably, moderately, measurably. In the phrase, “reasonable doubt” the word “reasonable” means according to sound reason. But as here qualified the entire charge on the subject is not incorrect, though we do not commend it.

We find no error in the record, and the judgment is affirmed.

Marvin and Winch, JJ., concur.


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    EMBEZZLEMENT
    [Cuyahoga (8th) Circuit Court,
    March 24, 1911.]
    Marvin, "Winch and Henry, JJ.
    J. T. Ottke v. State of Ohio.
    Degree of Proof Required to Convict of Embezzlement.
    The crime of embezzlement is not made out by evidence which might be sufficient to establish the crimes of larceny or obtaining money under false pretenses.
    Error.

      M. P. Mooney, for plaintiff in error.

      John A. Cline, for defendant in error.
   HENRY, J.

Plaintiff in error was convicted of embezzlement. The first of the three counts of the indictment, under which alone Ottke was found guilty, charges that he “on or about the fifteenth of April in the year of our Lord nineteen hundred and ten, and from that date continuously until the present, to-wit, the twenty-eighth day of September, nineteen hundred and ten, at the county aforesaid, was then and there a partner in the firm of Ottke & Pulwitt, a partnership, then and there doing business under the name and style of Ottke & Pulwitt, and the said J. T. Ottke, as such partner was then and there the agent of Mary Higgins; he, the said J. T. Ottke not being then and there a person within the age of eighteen years, and not being then and there an apprentice, and while acting as agent for the said Mary Higgins, aforesaid certain money of the amount and of the value of seven hundred dollars of the personal property of and belonging to the said Mary Higgins did unlawfully and fraudulently embezzle and convert to his own use, without the assent of the said Mary Higgins, his said employer, and without the assent of any owner or owners of said property, which said personal property had then and there come into the possession and care of the said J. T. Ottke, by virtue of his employment as agent of the said Mary Higgins, ’ ’ etc.

The facts, in brief, are these:

Mrs. Higgins being desirous of purchasing a house and lot, was introduced by her friend, Margaret Payton, a clerk in the real estate office of Pulwitt & Ottke, to the members of that firm, who thereupon negotiated the sale to her for $2,800 of a house and lot belonging to a Mrs. Kirk.

The sale of this property had been entrusted to Pulwitt & Ottke by one Herman Durre, who acting on behalf of and pursuant to instructions from the owner, Mrs. Kirk, had authorized Messrs. Pulwitt and Ottke to sell the same for $2,600 or more, with the privilege of retaining as their commission whatever in excess of that amount they might be able to obtain. The terms of sale were to be one-half cash down and the remainder secured by mortgage. Mrs. Higgins being shown the property by Ottke, decided to take the same and pay therefor the sum of $2,800, of which $700 was to be cash down, and $2,100 secured by mortgage.

Thereupon, Mrs. Higgins paid to Ottke, in three several payments, a total sum of $700, $400 of which was paid by the firm of Pulwitt & Ottke, through the former, to Durre, for Mrs. Kirk. Durre, however, declined to receive the same, because the down payment was not in accordance with the terms stipulated by Mrs. Kirk to him, and by him in turn to Pulwitt & Ottke.

The $400 having been left on his desk or table, against his protest, he subsequently deducted $10 which Pulwitt owed him and drew his check for $390, in favor of Pulwitt & Ottke, who endorsed it with their respective names and cashed it at the bank, where they were identified by Durre for that purpose.

The defendant below testified in his own behalf that the entire $700 including the $390 returned by Durre, was taken by Pulwitt, who decamped with the same. He also testified that Mrs. Kirk had meanwhile authorized Pulwitt & Ottke to close the sale on the terms proposed by them and agreed to by Mrs. Higgins.

Be this as it may, Mrs. Higgins testifies:

“Q. Were you to pay any commission to these men on the purchase of this property? A. Why no, I was not.
“Q. What? A. No, I was not to pay them anything.
“Q. Did you agree to pay them any commission? A. Certainly not.
“Q. Did you know who was to pay any commission that was paid ? A. Why the lady that owned the property. I understood that way. They told me.”

And again at page 35, she testified:

“Q. Did you have any agreement with Pulwitt or Ottke that you were to pay them a commission for buying this property? A. I did not.
“Q. Did either of them say anything to you about your paying them a commission for services rendered to you? A. No.”

, From this and all the testimony offered on behalf of the state it is perfectly evident that Pulwitt & Ottke were not her agents, either to buy the property for her, or to receive the money from or for her. She all the while supposed them to be, and they all the while represented themselves to be the agents of the seller. If their representations in this regard were false, they obtained Mrs. Higgins’ money by false pretenses, or possibly one or both of them was guilty of the larceny of the money belonging to her, or some part of it. It is clear, however, that they did not embezzle any money, entrusted by her to them as her agents or servants in the transaction.

We have grave doubts whether, from the facts in the case, Ottke was guilty of any criminality whatsoever. In any event the verdict and judgment in this case are clearly not sustained by the evidence and the judgment is reversed.

Marvin and Winch, JJ., concur.


text:
    FALSE REPRESENTATIONS
    [Mahoning (7th) Circuit Court,
    March 31, 1911.]
    Marvin, Winch and Henry, JJ., of Eighth Circuit.
    John J. Hamilton v. William M. Carr et al.
    Rescission of Sale of Stock for False Representations Refused when Buyer Guilty of Laches.
    A sale of oil stock under the false representation that it was treasury stock and that other named stockholders had paid par for their stock, will not he rescinded when the buyer waits six months after learning the truth about the stock and until a well is drilled which turns out to be a dry hole.
   HENRY, J.

This is an appeal of an action for the rescission of a fraudulent sale of certain shares of stock in an Arizona oil company operating in Illinois. Without rehearsing the facts in detail, we are convinced that the sale was consummated by and through the false and fraudulent representations of Carr to Hamilton that the stock was treasury stock, offered for sale in order to finance the company by payment of the purchase price into the treasury of said company, and that other named stockholders to whom Carr had sold stock were paying or had paid therefor dollar for dollar the same as Hamilton. In truth the stock was owned, not by the company but by Carr and his associates; the proceeds of this and other sales went not into the treasury of the company, but into the pockets of Carr and his associates; and some of the other purchasers of stock so named by Carr to Hamilton had not paid and were not to pay for their stock at all, but had received it as a gift.

Some months before this suit was brought a directors’ meeting was held, which.Hamilton attended. Carr and his associates testify that at that meeting the minutes contained in the company’s record book were read in full in Hamilton’s hearing. These minutes disclose the facts. Hamilton swears he did not hear them read. Two witnesses, not hostile to Hamilton, testify that they were present and that they can not swear that the minutes were not read in Hamilton’s presence. One of them says that much was read from the minute book but he can not tell what it was. On the whole we find that the preponderance of the evidence is in favor of the defendants on this point. Carr and his associates testify that the minutes were so read; Hamilton is the only man that denies it. The other two witnesses’ testimony is not decisive, but on the whole we find that the minutes were read in Hamilton’s presence.

Hamilton is a lawyer of some experience in reference to, such corporations. He had $5,000 invested in this enterprise. He then had abundant opportunity and incentive to learn just how this corporation was being financed, but he waited six-months until a well was drilled and found to be a dry hole, before he sought to rescind. He speculated and lost. We hold that his laches was such as to bar the equity which he invokes.

Marvin and Winch, JJ., concur.


text:
    MUNICIPAL CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    May 5, 1911.]
    Winch, Henry and Jones, JJ.
    Judge Jones of Fourth Circuit Sitting in Place of Judge Marvin.
    State ex rel Marani, v. H. B. Wright, Aud.
    Municipality not Liable for Travelling Expenses of Its Officials Attending Conventions.
    A municipality is not liable for the traveling expenses of one of its officials incurred in attending a convention of like officials of other municipalities.
    Mandamus.

      Newton D. Baker, for plaintiff.

      Wing, Myler & Turney, for defendant.
   HENRY, J.

By this proceeding in mandamus the relator, who is the building inspector of the city of Cleveland, seeks to compel the city auditor to allow for payment by the city the necessary traveling expenses incurred by him on a trip to Columbus, to attend, by direction of his superior officer, the director of public safety, a convention of building inspectors of various municipalities.

We hold that in the absence of any specific statutory provision for such cases, the test of the city’s liability must be deemed to be: is the trip or journey in which the expenses were incurred necessarily implied in or reasonably and directly incident to the prescribed duties of the municipal officer who undertakes such journey?

It has been pointed out in argument that a municipal officer may properly undertake a journey at the city’s expense to inspect material or supplies for the purchase of which, on behalf of the city, he is authorized to negotiate, if such journey is reasonably necessary for that purpose.

This is upon the ground that the object of the journey is directly related to the duties of his office. Here, however, the purpose of the journey was to acquire such information in regard to the duties of his office as the building inspector might reasonably acquire while in attendance upon a convention of officials holding like positions, in various cities. We are unable to see how such an object relates itself either directly or with reasonable necessity to the duties of the relator’s office. He was presumably appointed to his present position because of his fitness by experience and education to discharge the duties of the place, and the salary paid him is presumably adapted to secure the degree of efficiency in these respects which the city desires that its building inspector shall possess. If a person relatively uneducated, inexperienced and inefficient in the discharge of the duties of the position of building inspector were appointed at a salary proportioned to his fitness, it might as well be argued that his deficiencies may thereafter be supplemented at the charge of the municipality which he serves by directing him to attend an architectural school and to render his bills for board and tuition to the city. The salary attached to the office o£ building inspector is presumed to be sufficient to enable him to maintain his professional or official efficiency at proper standard.

The petition is dismissed at the costs of the relator.

Winch and Jones, JJ., concur.