author: WILSON, J.

text:
    BILLS OF EXCEPTIONS — JUDGMENTS—EMINENT DOMAIN.
    [Darke (2nd) Circuit Court,
    November 23, 1903.]
    Sullivan, Summers and Wilson, JJ.
    Dayton & Union Ry. Co. v. Dayton & Muncie Traction Co.
    1. Bun op Exceptions to Review Preliminary Findings and Order, and Final Judgment in Appbopbiation Proceedings Under Secs. 6420 and 6432 Rev. Stat.
    A bill of exceptions to review tbe finding and order of tbe probate court upon tbe preliminary bearing provided for under Sec. 6420 Rev. Stat., in an appropriation proceeding, must be taken, if at all, witbin tbe time prescribed by Sec. 5301 Rev. Stat. from tbe date of tbe order; and a bill of exceptions not taken witbin tbe prescribed time from tbe date of tbe order, although within tbe proper time from the judgment under Sec. 6432 Rev. Stat., confirming tbe verdict of the jury, will only be considered in reviewing tbe latter judgment. But, whether error can be prosecuted from tbe findings and order upon the preliminary bearing, quaere.

    2. Judgment in Appropriation Proceedings Under Sec. 6414- Rev. Stat., Res Adjudicata.
    Tbe final judgment of tbe probate court in a condemnation proceeding commenced by an interurban electric railway company under Sec. 6414 Rev. Stat., et seq., to appropriate a right of way over tbe tracks and property of a steam railroad company is res adjudicata as to all questions involving tbe private rights of each company in, about, and over the crossing; and such questions cannot be relitigated in an action commenced by the latter to restrain tbe former company from appropriating and using such right of way, notwithstanding such action was commenced prior to tbe commencement of tbe appropriation proceeding.
    3. Statutes Applicable to Steam Railroads not Applicable to Electric Railways.
    Steam railroad companies and electric railway companies are classified and recognized as separate and distinct from each other by tbe statutes of Ohio; and statutes relating to and regulating tbe former are inapplicable to tbe latter unless an intention to tbe contrary clearly appears.

      4. Section 3333-1 Rev. Stat. not Applicable to Electric Railways Crossing Steam Railroads.
    A steam railroad company cannot invoke the power of the common pleas court under Sec. 3333-1 Rev. Stat. to ascertain and define the manner in which an interurban electric railway company may cross its right of way, as the statute is applicable to steam railroad companies only. Hence, an answer filed by a railroad company in an appropriation proceeding commenced against it in the probate court by an electric railway company under Sec. 6414 Rev. Stat., et seq., pleading the pendency of an action commenced in the common pleas court under Sec. 3333-1 Rev. Stat. to have the manner of crossing ascertained and defined by said court, should be stricken from the files.
    5. No Appeal Under Secs. 3333-1 or 5226 Rev. Stat., From Order Dismissing Application Under Former Section.
    No appeal is specially provided for from the judgment of the common pleas court in dismissing an application made to it by a railroad company under Sec. 3333-1 Rev. Stat. 'to ascertain and define the manner in which another company may cross its tracks; and as such proceeding' is not a civil action, no appeal can be taken under See. 5226 Rev. Stat., notwithstanding the right of trial by jury does not exist and the judgment of dismissal is a final order.
    6. Railroad Property may be Appropriated by Another Company.
    A railroad company has no such preemptory and exclusive right to property appropriated, paid for, and used by it in conducting its business as will prevent another company, under a like. franchise, from appropriating a right of way across its tracks and property.
    Nevin & Nevin, J. C. Clark and C. B.'Heiserman, for plaintiff in error. ,
    Anderson, Bowman & Anderson and C.. P. Matthews, for defendant in error:
    Plaintiff in this action bad a right to set np in the probate court all matters alleged in his petition herein as a defense to the condemnation proceedings. This right afforded him a complete and adequate remedy at law. Injunction will not be granted to restrain the occupation or lands sought to be taken for public use where the owner has a plain and adequate remedy at law in the condemnation proceedings. Chicago & N. W. Ey. Co. v. Chicago, 151 Ill. 348 [37 N. E. Eep. 842] ; Lewis, Eminent Domain Sec. 646; Lake Shore & M. S. Ey. Co. v. Eail-way Co. 96 Ill. 125; Detroit, G. H. & M. Ey. Co. v. Detroit, 91 Mich. 444 [52 N. W. Eep. 52] ; Joplin Consolidated Mining Co. v. Joplin (City), 124 Mo. 129 [27 S. W. Eep. 406] ; Phillips v. Watson, 63 Iowa 28 [18 N. W. Eep. 659],
    This is the rule in Ohio. Walker v. Eailway Co. 8 Ohio 38.
    This is true even though the proceedings in the condemnation case are erroneous. Cooper v. Eailway Co. 85 Ala. 106 [4 So. Eep. 689].
    The plea of the pendency of this action was no bar to the action commenced subsequently in the probate court because:
    1. The plaintiffs in each suit were not the same. Barr v. Chapman,. 3 Cire. Dee. 36 (5 R. 69); Walsworth v. Johnson, 41 Cal. 61; Colt v„ Partridge, 48 Mass. (7 Mete.) 570; New England Screw Co. v. Bliven',, 3 Blatehf. 240 [18 Fed. Cas. 69]; Pierce v. Feagans, 39 Fed. Rep. 587;; Washbnrn & Moen Mfg. Co. v. Scntt, 22 Fed. Rep. 710; O’Conner v~ Blake, 29 Cal. 312; Felch v. Beaudry, 40 Cal. 439, 440; Langham w. Thomason, 5 Tex. 127; Weil v. Gnerin, 42 Ohio St. 299; Sparry’s Case,. 5 Coke 61.
    2. The defense of a former action pending in the probate court, was not good because the subject matter of the causes of action was not: the same. Spinning v. Insurance & Tr. Co. 13 Re. 206 (2 Disn. 336) Pugh v. Brown, 19 Ohio 202; Spence v. Insurance Co. 40 Ohio St. 517C The object of both actions must be the same. ■ Coles v. Yorks, 31 Minn. 213 [17 N. W. Rep. 341]; Bolton v. Landers, 27 Cal. 104; McKaig v. Piatt, 34 Md. 249; Streator v. Ricketts, 2 Kulp (Pa.) 529; Mullin v„ Mullock, 22 Kan. 598.
    The existence of the first is no ground for abating the second action only where it is legally possible for the same judgment to be rendered upon the cause of action alleged in the second, and was brought for the purpose of obtaining such judgment. Damon v. Denny, 54 Conn. 253 [7 Atl. Rep. 409]; State v. Railway Co. 77 N. C. 299; Smith v. Moore, 79 N. C. 82; Wisconsin v. Torinus, 28 Minn. 175 [9 N. W. Rep, 725] ; Mathews v. Bank, 44 Minn. 442 [46 N. W. Rep. 913]; Phillips v. Quick, €8 Ill. 324, 325.
    The court of common pleas did not have jurisdiction to grant this defendant all of the relief it sought .in the probate court. It sought the probate court because its jurisdiction of such matters was exclusive. Sections 524, 6416, 6440 Rev. Stat. .
    The jurisdiction conferred upon the probate court by Sec. 524 Rev. Stat., is original and exclusive of the subject matter in respect to that of which it is given any jurisdiction, and in such cases no other court can take original or concurrent jurisdiction of the same subject matter. First Nat. Bank v. Beebe, 62 Ohio St. 41, 45 [56 N. E. Rep. 485]; Brown v. Burdick, 25 Ohio St. 260, 265; Mosier v. Harmon, 29 Ohio St. 220, 222; Havens v. Horton, 53 Ohio St. 342 [41 N. E. Rep. 253]; Gor-man v. Taylor, 43 Ohio St. 86, 89 [1 N. E. Rep. 227] ; Newton v. Hammond, 38 Ohio St. 430, 436.
    Where the court in which the former suit is pending has no jurisdiction of the subject matter or the suit, or proceeding is otherwise so defective as to be ineffectual, its pendency will not abate a second suit between the same parties for the same cause of action. 1 Enc. PI. & Pr. 766.

      The exclusive jurisdiction of the probate court cannot be ousted on equitable grounds only. Gorman v. Taylor, 43 Ohio St. 86 [IN. E. Rep. 227].
    The same rule was announced by our own circuit court sitting in this county, at the November term, 1902, in the case of Pittsburg, C. C. & St. L. Ry. Co. v. Greenville (City), unreported.
    The plea in bar set out, contained in the first defense of the answer of the defendant herein, is a complete defense to this action. Doyle v. West, 60 Ohio St. 438 [54 N. E. Rep. 469],
    Plea of a prior action pending is a plea in abatement, and not in bar, which does not go to the merits of the claim, or cause of action, but rather to the procedure, and is thus distinguished from a plea in bar, which is addressed to the merits, and tends to show that the plaintiff cannot maintain any action at any time. Moore v. Sargent, 112 Ind. 484, 487 [14 N. E. Rep. 466] ; 1 Chitty, Pleading 462, 470; Coke, Little-ton, 134 B. 277a; Sullings v. Goodyear Co. 36 Mich. 313; Near v. Mitchell, 23 Mich. 382, 383; 1 Bacon’s Abridgment, Abatement (M).
    The plea of a former action pending, denies only plaintiff’s right to maintain the present acton, and.does not act as a bar or defense to the whole action. Morton v. Sweetser, 94 Mass. (12 Allen) 134; Mattel v. Conant, 156 Mass. 418, 424 [31 N. E. Rep. 487] ; Moore v. Sargent, 112 Ind. 484, 487 [14 N. E. Rep. 466].
    Under the code of civil procedure, the objection that another action is pending must be plead by answer. Weil v. Guerin, 42 Ohio St. 299; Secs. 4971, 5067 Rev. Stat.
    This plea is personal, and may therefore be waived. Commonwealth v. Cope, 45 Pa. St. 161; Hollister v. Stewart, 111 N. Y. 644, 646, 659 [19 N. E. Rep. 782] ; Drake v. Brander, 8 Tex. 351, 352; Larco v. Clements, 36 Cal. 132; Kenyon v. Williams, 19 Ind. 44; Fahy v. Bran-nagan, 56 Me. 42, 44; Coubrough v. Adams, 70 Cal. 374, 375 [11 Pac. Rep. 634] ; Pugh v. Brown, 19 Ohio 202.
    Waiver of the plea of plea in abatement. 24 Am. & Eng. Enc. Law (2 ed.) 833; Shepard v. Stoekham, 45 Kan. 244,-249 [25 Pac. Rep. 559]; Chicago, K. & W. Ry. Co. v. Anderson Co. (Comrs.) 47 Kan. 766, 767 [29 Pac. Rep. 96] ; Coal Co. v. Brick. Co. 52 Kan. 747, 749 [35 Pae. Rep. 810]; Allis v. Davidson, 23 Minn. 442; Poorman v. Mitchell, 48 Mo. 45; Duffy v. Lytle, 5 Watts (Pa.) 120; Casebeer v. Mowry, 55 Pa. St. 419 [93 Am. Dec. 766] ; Estep v. Larsh, 21 Ind. 190, 196.
    For brief filed in common pleas, also used in circuit court, see Dayton & U. Ry. Co. v. Traction Co. 14 Dec. 24.
   WILSON, J.

Three- cases have been submitted to the court under the title of The Dayton' & Union -Railroad Company v. Dayton & Muncie Traction Company, 14 Dec. -17, 22, 143, numbered 489, 495 and 497. Nos. 489 and 495 are on appeal. No. 497 is a proceeding in error.

They arose in this way. -On July 11, 1903, The Dayton-& Union Railroad Company filed its petition in- the court of common pleas to enjoin The Dayton & Muncie Traction Company from constructing a crossing at a designated point over its-tracks for the reason that to permit it to cross would be destructive to the rights and property of the plaintiff and would necessarily endanger- the interests of the public as well as the property of the defendant; also that there was no necessity for the crossing at the point designated.

A temporary restraining order was issued upon the filing of this petition and served upon the defendant.

On July 13, 1903, The Dayton & Muncie Traction Company filed its petition in the probate court under the' statute seeking to appropriate the same crossing.

Subsequently on August 15, The Dayton & Union Railroad Company filed an application under Sec. 3333-1 Rev. Stat. (95 O. L. 530), authorizing the court of common pleas, upon the application of a railroad, to prescribe the mode and manner in which one read may cross another.

In the action in the probate court for the appropriation of the property, The Dayton & Union Railroad Company appeared and joined issue by filing an answer therein. The first defense in the answer is a general denial; the second is the pendency of the injunction-case in the court of common pleas, relying upon it as ousting the jurisdiction of the probate court over the subject matter of the suit. Subsequently on August 17, 1903, it filed a supplemental answer setting out the prosecution of the proceeding under the statute, 95 O. L. 530. A motion was made to strike this supplemental answer from the files in the probate court, and sustained.

The case in the probate court went -to trial upon the issues joined and -resulted in a finding and decree in favor of The Dayton & Muncie Traction Company, on August 10, 1903, that it had the right to prosecute the proceeding, that -it was necessary for it to cross, and that it was- 'not -destructive of The Dayton & Union Railroad Company’s franchise; and subsequently passing to the inquiry of damages, judgment was-entered, fixing-the-compensation at $75 and damages at $25.

Error was prosecuted from- this judgment of the probate court to the-court' of common 'pleas and- there- affirmed ;. error is now'prosecuted Fere to reverse the judgment of affirmance in the court of common pleas and the judgment of the probate court. This is the error case.

No. 489, which is the application to the common pleas court to fix. and determine the mode and manner of crossing, resulted, in that court in a decree in favor of the defendant and the dismissal of the application. The plaintiff gave notice of appeal and seeks now to have the matter retried in this court. A motion is interposed here to dismiss the appeal. <

An appeal is not specially provided for under this statute. If the right of appeal exists it must be under the general statute, Sec. 5226 Rev. Stat. In order that a party may be entitled to appeal under that section, three things must concur. The order from which appeal is sought to be prosecuted must be a final order; it must be made in a civil actio'n in which the court has original jurisdiction; and the parties must not be. entitled to a jury trial. The order in question here is a final order in the proceedings; the parties are not entitled to a jury trial; but it is not a civil action. So that the three things necessary do not concur and the party is not entitled to prosecute the appeal. The appeal, therefore, will be dismissed.

In the injunction case, being causé No. 495 in this court, The Dayton & Muncie Traction Company, the defendant in that action, filed an answer in which it pleaded the adjudication in the appropriation proceedings in the probate court. The Dayton & Union Railroad Company interposed a demurrer to this defense. The demurrer was overruled, and the plaintiff not desiring to plead further a decree was entered in favor of the defendant. ‘ The case on appeal is now submitted to this court upon the demurrer to this defense.

We are of the opinion that when The Dayton & Muncie Traction Company instituted the proceeding in the probate court to appropriate the property, The' Dayton & Union Railroad Company, appearing and answering in that case, had then a plain and adequate remedy at law to which it was remitted; and when it litigated the questions necessarily involved in the appropriation proceedings to a final judgment in that court it had adjudicated all of the questions which could arise in the injunction case in the court of common pleas. What was involved in both cases was the private right of the parties in, about, and over, this crossing. They each had a franchise right to use it as a crossing. The Dayton & Union Railroad Company had appropriated and paid for its private right but it. had no preemptory exclusive right that would prevent another road from appropriating a crossing on the same land under a like franchise from the state. What they had to contend about was .upon what terms, if at all, could The Dayton & Union Railroad Company be deprived .of its private property in that crossing by tbe power ot eminent domain. The same subject matter and the same questions would necessarily arise and be involved in the litigation in either one of the eases, except that the jurisdiction of the probate court was broader than the jurisdiction of the court of common pleas, in that it could give affirmative relief to The Dayton & Muncie Traction Company as well as to The Dayton & Union Railroad Company.

The demurrer to the answer will be overruled.

The preliminary hearing in the condemnation proceeding was had in the probate court on August 10, at least it resulted in the finding and order of the court on that date in favor of The Dayton & Muncie Traction Company upon all of the questions which were required by the statute .to be determined as preliminary to the inquiry of damages. The Dayton & Union Railroad Company fild a bill of exceptions in the probate court on October 9; that was ten days after the judgment on the inquiry of damages, but more than sixty days after the finding and order of the court upon the preliminary hearing. A motion was made in the court of common pleas, to strike the bill of exceptions from the files. The motion was overruled by that court for the reason that the bill, when filed, was a good bill, at least, for the purpose of reviewing the judgment upon the inquiry of damages. A motion was also made to strike out of the bill that part which had reference to the trial on the preliminary questions which resulted in the judgment and order of August 10. This motion was overruled, the court, in the consideration of the whole record, being of the opinion that the proper proceeding would be to ignore so much of the bill as was not authorized by law. It then found that for the purpose of reviewing the preliminary order made on August 10, the bill of exceptions was not taken in time; that an appropriation proceeding is in effect two separate proceedings or .actions; upon the preliminary hearing The Dayton & Muncie Traction Company is the plaintiff and had the burden of proof; upon the inquiry of damages The D,ayton & Union Railroad Company stood in the attitude of plaintiff and had the right to open and close upon the question of damages; that when error is prosecuted from the probate court to the court of common pleas and results in a reversal of the judgment of the probate court the action is set down for trial upon the inquiry of damages only, and not for a rehearing upon the preliminary questions. All of which being true, the court was of the opinion that in order to review the order made upon the preliminary hearing a bill of exceptions must be taken within the time prescribed by the statute from the date of that order, and this was not done.

This question is very obscure. We are not convinced that there is any right to prosecute error from the order made upon the preliminary hearing. It has been done however and has’ been passed upon by the Supreme Court without raising the question. If it can be done, then we are of the same opinion as the court' of common pleas that the preliminary hearing is so far separate from the inquiry of damages, as that, in order to review it, a bill of exceptions must be taken from the date of the order, and if not taken within the time prescribed by the statute the bill is .not effective to bring the evidence on that question before the court. The common pleas court was right in refusing to-look to the bill for the purpose of determining whether or not the order upon the preliminary hearing was made upon sufficient evidence.’

But the motion of The Dayton & Muncie Traction Company to strike from the files the answer of The Dayton & Union Railroad Company, pleading its proceeding under the statute to have the common pleas court fix the terms and conditions upon which one road could cross another, was sustaine this raises the question which was sought to be raised by the appeal in case No. 489. Because if The Dayton & Union Railroad Company was entitled under that statute to go into the court of common pleas and have that court fix the terms, modes, and conditions- upon which The Dayton & Muncie Traction Company could cross its road, and havng done that, came into the probate court and pleaded- the pendency of that proceeding, it ought tó stay the hand of the probate court until the common pleas court had so fixed the mode and manner of crossing, for the reason that it would affect the question of compensation and damages.

We are called upon therefore to construe that statute; the question being whether or not it applies to The Dayton & Muncie Traction Company. The court of common pleas was of the opinion that it does not apply. We are of the same opinion, and might rest our conclusion in that respect upon the reasoning and the authorities found in the opinion of the learned judge of that court which has been filed with the paper in the case. But it is very easy to reenforcé that opinion by other authorities.

In Cincinnati, L. & A. Elec. St. Ry. Co. v. Lohe, 68 Ohio St. 101, the Supreme Court has held:

“An interurban and electric railroad is classed ’as a street railroad by the statutes of this state'.

In the case of Massillon Bridge Co. v. Iron Co. 59 Ohio St. 179 [52 N. E. Rep. 192], it is held :

“The statutes of this state relating to railroads are separate and distinct from those relating to street railroads, and-the word ‘railroad’ in Sec. 3208 Rev. Stat. and in Sec. 1 of the act of March 20, 1889, 86 O. L. 120, Sec. 3231-1 Rev. Stat. does not include street railroads.”

Turning to the last section referred to, See. 3231-1 Rev. Stat., we find it reads as follows, “Any person who shall have performed common or mechanical labor upon, or furnished supplies to any railroad, street railroad, or railroad operated wholly or in part by electric motor power,” clearly implying that a railroad is one thing, street railroad is another, and that a railroad operated wholly or in part by electric motor power may be another. They are not treated by the legislature as synonymous terms. The statutes generally lead to this same conclusion. When one steam railroad crosses its trains over another steam railroad, if they have not the interlocking switch they must stop at a certain distance and not pass until they get the signal. When an electric railroad car passes over a steam railroad it must send an employe forward to ascertain whether the track is clear, and the car cannot cross until it is signaled by the employe that the road is clear.

On the same day that the special act under which this proceeding is sought to be prosecuted was passed, the legislature passed another act conferring upon electric roads the power of eminent domain. The railroads had had that power from their inception, and if an electric road is identical that legislation would be superfluous. The legislature clearly understood that they were different roads and we are driven to the conclusion that the word “railroad” in this statute has a fixed legal signification. It means a steam commercial road and nothing else, and whenever it is used in a statute that meaning must be given to it unless it clearly appears that some other meaning is intended. It does not appear in this statute that they had such other intention, nor does it appear from the proceedings upon the journals of the legislature that it had any intention, to give to the word any other than the ordinary legal signification.

We find that the direct question was decided by the superior court in Cincinnati in the case of Rapid Ry. Co. v. Railway Co. The court says:

“We are of the opinion that House Bill No. 230; 95 O. L. 530, does not refer to the kind of road operated by the plaintiff. ”'

The road in question was an electric - road. So that we'hold the statute does not apply to The Dayton & Muncie Traction Company; that the Dayton & Union Railroad Company was not authorized by law to prosecute -the proceeding which it did, in the court of common pleas, invoking the power of that court to fix the mode and manner of crossing, and that the answer setting up that proceeding in the probate court was properly stricken from the files.

We find no error upon the record. The judgment of the court of common pleas is affirmed.

Sullivan and Summers, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    PLEADING — LANDLORD AND TENANT — ACTIONS.
    [Franklin (2nd) Circuit Court,
    October 23, 1903.]
    Sullivan, Summers and Wilson, JJ.

      Charles W. Linke v. D. B. Walcutt et al.
    1. Judgment in Action to Recover Read Estate and Mesne Profits no bar to Action for Rent.
    A judgment in an action commenced to recover the possession of real property upon forfeiture of a leasehold estate therein, together with damages as for mesne rents and profits, cannot be pleaded in bar to an action commenced to recover rent under the lease, and which accrued prior to the forfeiture.
    2. Defenses by Lessee Against Claim, for Rent Insufficient, When.
    Defenses interposed by a lessee in an action commenced by lessor, to recover rents under the lease, based upon alleged damages arising from a leakage in a roof, but without alleging an obligation on lessor’s part to repair; or, that the roof was under lessor’s control, but without alleging specially any damages arising from its defective condition; or, pleading damages for having made certain improvements, which lessee himself was ’bound to make, but. without alleging specially any damages by reason thereof, or a wrongful eviction, are all insufficient as against a demurrer.
    3. Pendency of Mortgage Foreclosure Suit not an Eviction.
    Pendency of a mortgage foreclosure suit, which terminated subsequently to the. forfeiture by lessee of his leasehold estate, is not an eviction of lessee by paramount title, and will not relieve him from paying the rent due under the lease.
    Error to court of common pleas of Franklin county.
    The action below was one to recover rent, from June 1, 1898, to January 1, 1899, under a written lease for property, the term of which began June 1, 1896, and was to end May 31, 1899, with privilege of renewal for a further term of two years, on lessee’s serving written notice within thirty days prior to the expiration of said three years’ term. The rental was payable in installments of $150 per month, from the first to the fifth of the month; and the lease provided that if rent remained unpaid for five days after becoming due, that, without demand, tbe lessor might re-enter and have possession, and thereupon the tease should cease, terminate and be utterly void.
    The lessee defaulted in the payment of his rent each month from July, 1898, to January, 1899.
    In January, 1899, the lessors served on lessee a notice of forfeiture, asserted their right to re-enter, and demanded possession, which was refused. Thereupon the lessors commenced an action against said lessee to recover the possession of said premises and for mesne profits, i. e., rents and profits from and after the date of said forfeiture. This action was tried in October, 1900, resulting in a finding that the lessors were entitled to possession of the premises when the action was brought, under their demand, and allowing them $600 as the value of the issues and mesne profits of said premises from and after January 10, 1899, the date of the forfeiture of the lease, to June 6, 1899, when the premises «hanged hands, after which the said tenant was retailed in. possession by the purchaser at a reduced rental.
    The trial of that action adjudicated the fact that said lease terminated on January 10, 1899, and with it all rights of the lessee to renewal privilege, etc.
    At the end of said action for the recovery of the possession of the premises and for mesne profits, 'the defendant below, Linke, filed in this case below (which had been commenced subsequent to said action for possession) a supplemental answer, pleading the recovery in the former action, as a bar to this action for rent, under the lease, accrued prior to the forfeiture. To this supplemental pleading the court below sustained a demurrer which, is is claimed, was error and which is the principal question argued by counsel for plaintiff in error.
    Defendant also set up, as a defense, damages alleged to have arisen from a leakage in the roof of the building on the premises. The lease did not bind lessor to repair. It was subsequently averred in • an amended answer that the roof was under lessor’s control, but no allegation pleading specially any damages was made. Defendant also plead the pendency of a mortgage foreclosure in the United States courts as an eviction.
    J. D. Sullivan, for plaintiff in error:
    If the two actions could have been joined then a judgment in one is a bar to the further prosecution of the other. Bigelow, Estoppel (ed. 1876) 108, 113; Smith v. Whiting, 11 Mass. 445; 4 Term 146.
    The actions could be joined. McKinney v. McKinney, 8 Ohio St. 423; Perry v. Richardson, 27 Ohio St. 110; Woodhull v. Rosenthal, 61 JST. Y. 382, 397; Taylor v. Heintz, 87 Mo. 660, 665; Perry v. Dickerson, 85-N. Y. 345, 347; TÜlinghast v. Walton,-120 N. Y.-628 [24 N. E. Rep. 1096] ; Shumake v. Nelms, 25- Ala-. 126, 133; Cummings v.-McGehee, 9-’ Porter (Ala.) 349. ■ • ■
    Rent between landlord and tenant is of mesne profits,. Sedgwick,-, Damages Secs. 905, 907, 908, 914;' Schuyler v. Smith, 51 N. Y.. 309; Ives v. Williams, 50 Mich. 100 [15 N. W. Rep. 33]; Benfey v. Congdon, 40-Mich. 283; Camarillo v. Fenlon, 49 Cal. 205; Herreshoff v. Tripp, 15-R. I. 92, 94, 95 [23 Atl. Rep. 104] ; Strong v. Garfield, 10 Yt.- 502:. Walker v. Hitchcock, 19 Vt. 634 ; Lippett v. Kelley, 46 Yt. 516; 1 Chitty, Pleading 193, 194, 196; Adkins v. Loueks, 107 Wis. 587 [83 N. W. Rep. 934] ; Barth v. Loeffelholtz, 108 Wis. 562 [84 N. W. Rep. 846] ; Young v. Harwell, 165 N. Y. 341 [59 N. E. Rep. 123] ; Phelan v. Quinn, 13a Cal. 374’ [62 Pac. Rep. 623] ; Quirk v. Rooney, 130 Cal.- 505 [62 Pam Rep. 825] ; Stone v. Stamping Co. 155 Mass. 267 [29 N. E. Rep¡ 623].
    Where two actions are pending in the same court, between the-same parties, involving the same contract, judgment in - one is a bar against the other action, and may be so pleaded. Matthews v. Davis,, 39 Ohio St. 54, 56; Barnard v. Devine, 68 N. Y. Supp. 859; Grant v. Ramsey, 7 Ohio St. 158, 162, 163; Erwin v. Lynn, 16 Ohio St. 539, 547; Lancaster Mfg. Co. v. Colgate, 12 Ohio St. 344, 357; Hites v. Irvine, 13 Ohio' St'. 283, 287; Stein v. ’ Steamboat, 17 Ohio St. 471, 475 [93 Am. Dec. 631]; Ewing v. McNairy, 20 Ohio St. 315; Covington & C. Bridge Co. v. Sargent, 27 Ohio St. -233; Roby v. Rains-berger, 27 Ohio St. 674; Swenson v. Cresop, 28 Ohio St. 668; Fanning v.. Insurance Co. 37 Ohio St. 344; Whitney v. Clarendon, 18 Yt. 252; Reynolds v. Railway Co. 29 Ohio St. 602, 604; James v. -Allen-Co.- 44 Ohio St. 226 [6 N. E. Rep. 246; 58 Am. Rep. 821]; Hixon v. Ogg, 53 Ohio St. 361, 367 [42 N. E. Rep. 32] ; Baltimore & O. Ry. Co. v. Smith, 54 Ohio St. 562, 596' [44'N. E. Rep. 240].
    Damage by leakage from -that part of' the • premises retained by the landlord' was a proper element of damage to aver and prove. Toole v. Beckett, 67 Me. 544 [24 Am. Rep. 54] • Jones v.- Freiden-burg, 66 Ga. 505 ’ [42 Am. Rep. 86]; Glickauf V: Maurer, 75 Ill. 289 [20 Am. Rep. 238] ; Milford v. Holbrook, 91 Mass. (9 Allen) 17;, Shipley v. Fifty Associates, 106 Mass. 194; Salisbury v.. Herchenrodor, 106 Mass: 458; Genter v. Davis, 39 Ga. 210; Wood, Landl. &. Ten. 1117., and notes; Dyett v. Pendleton, 4 Cow. (N.--Y.) 581; Ogilvie v. Hu'.l, 5 Hill (N. Y.) 52 ; Bennett v. Bittle, 4 Rawle 339; Banders .v. Fletchey 11 Serg: & R. 419; DeWitt v.-Pierson, 112 Mass. 8 ;-Wetzell v. Richereek, 53 Ohio St. -62, 67 [40 N. -E. Rep. 1004]; McNairy v, Hicks, 59 Tenn. 378; Jaeksofi'v. Eddy, 12 Mo.' 209; Crommelin v. Thiess & Co.-31 Ala. 412; Peek v. Hiler, 24 Barb. (N. Y.) 178; Rogers v. Ostrom, 35 Barb-{N. Y.) 523;-Secs..5071, 5074, 5075,.5076.Rev. Stat.; Holbrook v. Young, 108 Mass. 83.; Tiley v. Moyers,.43.Pa.-St.-404.; Blair v. Claxton, 18. N. Y. 529; Eldred v. Leaby, 31 Wis. 546: -
    Where the wrong consists in interrupting a regular and established business, the usual and ordinary profits- incident -to .the business are proper elements of damage. Goebel v. Hough, 2,6 Minn. 252 [2 N. W. Rep. 847] ; Shaw v. Hoffman,- -25 Mich. 162; Hinckley v. Beckwith, 13 Wis. 31; De La Zerda v. Korn, 25 Tex. 188; Ganson v. Tifft, 71 N. Y. 49, 56; Hitchcock v. Anthony, 83' Fed. Rep. -779 [28 O. C. A. 80; 54 U. S. App.. 439]; Rhodes v. Baird, 16 Ohio St. 573; Masterton v. Brooklyn, 7 Hill (N. Y.) 61; Gauge Co. v. Valve Co. 184 Pa. St. 36 [39 Atl. Rep. 223] ; Conway v. Fitzgerald, 70 Vt. 103 [39 Atl. Rep. 634] ; Wreford v. Kenrick, 107 Mich. 389 [65 N. W. Rep. 234] ; Central Trust Co. v. Clark, 92 Fed. Rep. 293 [34 C. C. A. 354]; Kramer v. Messner, 101 Iowa 88 [69 N. W. Rep. 1142]; Collins v. Lavelle, 19 ‘R. T. 45 [31 Atl. Rep. 434] ; Poposkey v. Munkwitz, 68 Wis. 322 [32 N. W. Rep. 35; 60 Am. Rep. 858] ; Colburn v. Morrill, 117 Mass. 272 [19.Am. Rep. 415] ; Eten v. Luyster, 60 N. Y. 252; Robrecht v. Marling, 29 W. Va. 765 [2 S. E. Rep. 827]; Fillebrown v. Hoar, 124 Mass. 580.
    Rathmell & Johnson, for defendants in error:
    An action under the statutes for the recovery of the possession of real property, upon a forfeiture with damages for withholding, the same, the rents and profits, and an action for the recovery of rent under the lease, which accrued previous, to the forfeiture, are not joinable. as the joinder of causes of action for rent mnder a lease, and for recovery • of possession as upon forfeiture of the-lease, is a misjoinder; therefore the recovery on one cannot be a bar to the claims set forth in the other. Countee v. Armstrong,- 9 Re. 62 (10 Bull. 339) ; Scott v. Wasson, 2- Re. 460 ( 3 W. L. M. 148); Kinkead, Code PI. (2 ed.) .Sec. 30, p. 78; Bates, Pleading 139; Owens v. Hickman, 13 Re. 289 [2 Disn. 471; 3 Gaz. 349] ; Campbell v. McElevey, 13 Re. 351 [2 Disn. 574; 4 Gaz. 321] ; New An. Code p. 56; note under See. 5019 [5058] Rev. Stat.; McAdam, Landl. & Ten. (3 ed.) 1441; Taylor, Landl. & Ten. Sec. 499; Stuyvesant v. Davis, 9 Paige 427, -428, 430.
    The term'“rents and profits,” used in Sec.. 5019 [5058] Rev. Stat., permitting an. action for the 'recovery of real property with damages for withholding the same, rents and profits to be joined, refers merely to the time possession is wrongfully withheld; the action being the code substitute tor'trespass-for mesne profits. Countee v. Armstrong, 9 Re. 62 (10-Bull. 339)'McKinney v..McKinney, 8 Ohio St. 423-, 429; LiviñgstonW. Tanner, 12 Barb. 481,486; Lamed-v.. Hud-sort, 57 N. Y. 151, 153; Woodhull v. Rosenthal, 61 N. Y. 382, 394; Lord v. Deering, 24 Minn. 110, 113; Dobbins v. Baker, 80 Ind. 52, 55; Harrall v. Gray, 12 Neb. 543, 544 [11 N. W. Rep. 851].
    The landlord after a reentry for a forfeiture may recover rent which accrued previous to such forfeiture, but for rent which became due subsequent to that time he cannot recover as a landlord; his only remedy is for mesne profits. 12 Enc. PI. & Pr. 861; Scott v. Wasson, 2 Re. 460 (3 W. L. M. 148); 18 Am. & Eng. Enc. Law (2 ed.) 301.
    McKinney v. McKinney, 8 Ohio St. 423, cited by plaintiff in error, was an action for the recovery of real estate and damages for wrongfully withholding possession from plaintiff for nineteen years, and did not hold that a recovery of possession and damages for wrongful holding could- be united with a claim for rent under a lease. ,
    The lease failing to bind lessors to repair, there was no implied obligation on the part of lessors to keep the demised premises in repair, and a defense, or counterclaim, interposed in an action for rent, based on an alleged damage arising from a leakage in the roof, is bad on demurrer. ' Annotated Code, 524; Edgerton v. Page, 20 N. Y. 281; Boreel v. Lawton, 90 N. Y. 293 [43 Am. Rep. 170] ; Vann v. Rouse, 94 N. Y. 401; Shindlebeck v. Moon, 32 Ohio St. 264 [30 Am. Rep. 584] ; Kinkead, Code PI. (1 ed.) See. 82; Phillips, Pleading See. 252, p. 230; 18 Am. & Eng. Enc. Law (2 ed.) 218, 322.
    The attempt to adopt the first defense and cross-petition is ineffectual to constitute the allegations of the first defense an integral part of this defense. Shindlebeck v. Moon, 32 Ohio St. 264 [30 Am. Rep. 584] - Denison University v. Manning, 65 Ohio St. 138 [61 N. E. Rep. 706],
    Damages. Annotated Code, p. 76; Bliss, Code PI. 297b; McAdam, Landl. & Ten. 49, 408, 1340; Sutherland, Damages 864; Taylor, Landl. & Ten. 317; Pendleton v. Myers, 1 Re. 282 (7 W. L. J. 39); Backus v„ McCoy, 3 Ohio 211 [17 Am. Dec. 585]; McAlpin v. Woodruff, 11 Ohio* St. 120, 129; Wetzell v. Richcreek, 53 Ohio- St. 62, 73 [40 N. E. Rep. 1004] ; Sedgwick, Damages 961; Mack v. Patehin, 29 How. Pr. 20; Rhodes v. Baird, 16 Ohio St. 573.
    Pleading by reference, bad. Denison University v. Manning, 65 Ohio St. 138 [61 N. E. Rep. 706]; Bliss, Code PI. 113; Southern v. Wilcox, 4 Re. 251 (1 Clev. L. Rep. 172).
    Pendency of the suit in foreclosure in the United States court was not an eviction of. the lessee and did not relieve him of the obligation to> pay rent. Armleder v. Lieberman, 33 Ohio St. 77 [31 Am. Rep. 530] ; Zieverink v. Kemper, 50 Ohio St. 208, 220 |34 N. E. Rep. 250]; Pickett v. Ferguson, 45 Ark. 177 [55 Am. Rep. 545] ; Bates, Pleading 512; Peck v. Ice Co. 18 Hun (JN. Y.) 183; Whalm v. White 25 N. Y. 462; Picket v. Picket, 6 Ohio St. 525'; 18 Am. & Éng. Enc. Law (2 ed.) 298; McAdam, Landl. & Ten. Sec. 94, p. 406; 11 Am. & Eng. Enc. Law {2- !»d.) 482; Boreel v. Lawton, 90 N. Y. 293, 297; Edgerton v. Page, 20 N. Y. 281; Wood, Landl. & Ten. 1100, 1120; 8 Am. & Eng. Enc. Law (2 ed.) 98; Bedlow v. Dry Dock Co. 112 N. Y. 263 [19 N. E. Rep. 800; 2 L. R. A. 629]; Taylor, Landl. & Ten. Secs. 306, 308, 309, n. 5; Pier v. Carr, 69 Pa. St. 326; Whitbeek v. Cook, 15 Johns. 483; Sedgwick, Damages 956; 4 Kent’s Commentaries 471; 17 Com. B. 30; Dickson v. Hunt, 9 Re. 408 (13 Bull. 13); affirmed by Supreme Court, January 25, 1885; Mills v. Hamilton, 49 Iowa 105; 5 Am. & Eng. Enc. PI. & Pr. 375.
    Lessor not bound by bis covenant where the lessee has neglected to perform the conditions with which it was coupled. Taylor, Landl. & Ten. 317, 339 ; 12 Am. & Eng. Enc. Law (1 ed.) 1006; Behrman v. Barts, 54 Cal. 131.
    Defendant’s plea should show that his claim against the plaintiff was in existence at the time of the commencement of the suit. 19 Am. &. Eng. Enc. PI. & Pr. 760; Hill v. Butler, 6 Ohio St. 207, 218; Picket v. Picket, 6 Ohio St. 525.
    The unlawful eviction of a tenant by his landlord does not entitle him to recover profits which he would have madé but for the eviction. Dennison v. Ford, 10 Daly (N. Y.) 412; Rhodes v. Baird, 16 Ohio St. 573, 580, 581; Gaar v. Snook, 1 Circ. Dec. 142 (1 R. 259) ; Pendleton v. Myers, 1 Re. 282 (7 W. L. J. 39); Sutherland, Damages 864; Dickson v. Hunt, 9 Re. 408 (13 Bull. 13); affirmed by the Supreme Court, January 25, 1885; McAlpin v. Woodruff, 11 Ohio St. 129; Wetzell v. Richcreek, 53 Ohio St. 62, 74 [40 N. E. Rep. 1004].

       Affirmed by Supreme Court without report, Linke v. Walcutt, 69 Ohio St. 531.

   WILSON, J.

It was not error to sustain the demurrer to the supplemental answer or plea in bar. The recovery of damages as for mesne rents and profits in the action for possession and to declare a forfeiture, was no bar to a recovery in this action for rents under the lease.

There was no error in sustaining the demurrer to the second answer and cross-petition filed November 10, 1899, for the reason that the defendant did not stand upon this pleading, but filed another answer and cross-petition in which he availed himself of all its material averments; and for the further reason that the pleading did not state a defense or cause of action. Nor was it error to sustain the demurrer to the third defense, for no special damages are pleaded and no eviction is averred.

We find no error in the admission and exclusion of evidence, and no prejudicial error in the charge of the court, looking to the state of the proofs t.o which the charge must be applied.

We find .no error on the record, and the judgment is affirmed and cause remanded.

Sullivan and Summers, JJ., concur.


author: GIFFEN, J.

text:
    LEASE — SPECIFIC PERFORMANCE.
    [Hamilton (1st) Circuit Court,
    1904.]
    Giffen, Jelke and Swing, JJ.
    Keppler Bros. Co. v. Otto Heinrichsdorf.
    Specific Performance of Lease Renewal Refused When Condition Precedent not Performed.
    Equity will not decree specific performance by lessor of his covenant to renew when lessee, in consequence of his own ignorance, negligence and default, to which lessor in no way contributed, failed to perform his covenant, which was a condition precedent to renewal, to give lessor written notice of his intention to accept cr decline the additional term six months before the expiration of the lease.
    Appeal, from court of common pleas of Hamilton county.
    Theodore Kemper and Matthews & Merrill, for plaintiff.
    A. H. Bode, for defendant.
   GIFFEN, J.

This action was brought to enforce specific performance of the following covenant of a lease:

“Lessor agrees at the expiration of the present lease to give lessee an additional five years upon the same terms and conditions mentioned in this lease, lessee agreeing to give lessor, six months before the expiration of the present lease, a written notice of his intention to accept or decline the additional five years’ lease.”

The notice was given less than five months before the expiration of present lease.

The covenant to give notice was a condition precedent to the granting of an additional term of five years, and not being performed within the time prescribed, equity will not aid the lessee to avoid the consequences of his own negligence or ignorance, to which the lessor in no way contributed.

The lease was in the possession of the plaintiff and if consulted would have disclosed that a written notice was required.

The evidence fails to show that the defendant or his agent misled the plaintiff, or waived the provision of notice.

The petition will be dismissed.

Jelke and Swing, JJ., concur.


author: JELKE, J.

text:
    ASSESSMENTS — INJUNCTION—COURTS.
    [Hamilton (1st) Circuit Court,
    1904.]
    Giffen, Jelke and Swing, JJ.
    Mary H. Benham v. Cincinnati.
    1. Court may Hear Evidence as to Special Benefits From Street Improvements. ,
    The court has power to hear evidence as to the amount of special benefits when the collection of assessments, made against property abutting on a street improvement to pay the cost thereof, is sought to be enjoined.
    2. Finding of Benefits by Assessing Board Prima Facie Correct — Not Disturbed, When.
    A finding of benefits by the assessing board, and the making of an assessment on that basis against properly abutting on a street improvement to pay the cost thereof, is prima facie correct, and will not be lightly disturbed or inquired into when plaintiff, in an action to enjoin the collection of the assessment, fails to allege some of the grounds usually invoking equitable intervention.
    Error to court of common pleas of Hamilton county.
    F. M. Coppock, A. T. Brown and O. ,W. Kuhn, for plaintiff.
    Chas. J. Hunt and J. V; Campbell, for defendant.
   JELKE, J.

The conclusion reached in Thornton v. Cincinnati, post 33, is applicable to this ease also.

As to the power of the lower court to hear evidence as to the amount of special benefits, we said in the cáse of Cincinnati v. Shoemaker, 25 O. C. C. 256, 257: “If the benefits conferred aré equal to the assessment, there is nothing to move a court’ of equity to intervene by' injunction. ” This was approved by the Supreme Court.

Of course a court cannot make the finding and decree an injunction on that ground without hearing evidence as to the special benefits.

A eorollary of the above is that a trial court may hear evidence of special benefits, find the same, and 'then sáy that up to this point we will not enjoin, beyond it we will, which is practically fixing the assessment. See Schroder v. Overman, 61 Ohio St. 1 [55 N. E. Rep. 158; 47 L. R. A. 156] ; Walsh v. Sims, 65 Ohio St. 211 [62 N. E. Rep. 120] ; Shoemaker v. Cincinnati, 68 Ohio St. 603.

Where, however, the assessing board has'made a-finding of benefits and has made the-assessment on that basis, süeh finding and assessment are prima faoie correct, and-should not lightly be disturbed or-inquired into in the absence of allegations of some of the-grounds usually invoking, equitable-intervention: ...

Giffen and Swing, JJ., concur.


author: HULL, J.

text:
    WILLS — JOINT TESTAMENTARY DISPOSITION.
    [Lucas (6th) Circuit Court,
    January 25, 1904.]
    Parker, Hull and Haynes, JJ.
    Amedius M. Coghlin v. John T. Coghlin et al.
    1. Husband and Wife May Make Same Testamentary Disposition.
    Husband and wife may make the same testamentary disposition of their property, so that their respective estates may take the same course and be distributed in the same way after death; and where each, by separate will, undertakes to create the same trust in their respective estates for a certain number of years, the validity of the trust so created by the husband is not affecjted by, nor will it be terminated by reason of, the invalidity of the wife’s will which is invalid on account of its defective execution, the wife dying before the husband and probate of her will- being refused.
    2. Execution of Separate and Distinct Wills at Different Times Does not create Joint Will, When.
    A joint will is not created by the execution of separate and distinct wills at different times, and the making of separate and distinct codicils to-such wills at the same time, by husband and wife wherein disposition is made of the separate property and estate of each (it not appearing that the wills were in the nature of a compact), notwithstanding the will of each refers to the will and to the property and estate of the other, and that the disposition in both is practically identical.
    Appeal from Lucas commAn pleas court.
    Smith & Beckwith and Cole, Whitlock & Milroy, for plaintiffs..
    Hamilton & Kirby, for defendants:
    A ■ codicil or will when attacked must stand or fall as a whole. Walker v. Walker, 14 Ohio St. 157, 166 [82 Am. Dec. 474].
    Joint wills by the gréat weight of authority, are not invalid. I Underhill, Wills 18, 19, 20; Page, Wills Secs. 65 to 69; Walker v. Walker, 14 Ohio St. 157, 167 [82 Am. Dec.-474].
    Holding -joint wills invalid in Ohio, has been weakened as an' authority by Betts v. Harper, 39 Ohio St. 639, 641 [48 Am. Rep. 477]; Reformed Church (Tr.) v. Wise, 6 Circ. Dec. 653 (17 R. 659).
    The question whether there was a joint will should have been raised at time of probate or by contest under Sec. 5858 Rev. Stat. et seq.. Walker v. Walker, supra.

   HULL, J.

This action was brought in the court of common pleas to set aside certain portions of the will of Dennis Coghlin, especially the part of the will creating a trust and putting all of his real estate in trust for a certain period of time and to partition such real estate among- his legaE heirs. The action was brought by certain of the legal heirs of Dennis Coghlin, making all of the other heirs and their representatives defendants, and also The Ohio Savings Bank & Trust Company, defendant, as administrator with, the will annexed, the bank acting'as administrator with the executor, John T. Coghlin, who is named in the will as such executor. A demurrer to the petition was filed in the court- below by the bank, the administrator with the will annexed, and that demurrer was sustained by the court of common pleas, and the plaintiffs not desiring to plead further, judgment was entered in favor of the defendants dismissing the petition. Thereupon the case was appealed to this court and was argued here upon the demurrer to the petition.

The claim made by the plaintiffs in substance, is, that about the same time that Mr. Coghlin made his will — about a year later — Mrs. Coghlin ma’de a will, which is in effect a counterpart or duplicate of the will of Dennis Coghlin, for the disposition of her estate, and subsequently, in June, 1896^ a codicil was added to each of these wills, these codicils being identical with each other except so far as it was necessary to change them to make them applicable to the wills and property of these two persons, and the claim is that the result is, in effect, a joint will — an attempt to dispose of the estates of Dennis Coghlin and of Ella Coghlin as one estate as a joint fund .and joint property — and that although they are written separately and executed separately, the effect is, it is claimed, the same as though they had been written upon the same paper and executed and attested together, and that they, therefore, fall within the inhibition of the law of this state as laid down by the Supreme Court against joint wills, and that this objection is especially applicable to the trust which is created for the disposition of the property named in these two wills, and was to continue before final distribution was made until the year 1910.

It is claimed by counsel for the demurrer that the two wills do not constitute a joint will, and that under the law of this state as announced by the Supreme Court, in the more recent decisions at least, there is no legal objection to these dispositions of this property and that, therefore, the demurrer to the petition should be sustained. The petition discloses that Mr. Coghlin’s will was made in the year 1893 and Mrs. Coghlin’s will was made in the following year, and in June, 1896,. a codicil to each will was made and executed. Mrs. Coghlin died May 6, 1900, three months before her husband’s death, which occurred August 6, 1900, he having survived her about three months. Upon her death (presumably immediately upon her death), as stated in the petition, her will was offered for probate; but probate was refused, on the ground that it had not been properly attested, so that the paper writing signed and executed by her never in fact took effect as a testamentary disposition of-her property, and her property .was .disposed ol according to the laws of descent., and distribution,, and when Dennis Coghlin died, op August :6, 1900, there was. no legal will of his wife in. existence. The estate comprised both real and. personal property,, the estate of each being - large,- the . personal, estate, of Mr. . Coghlin amounting to about $300,000, and his real estate to something over $600,000, making o,ver $900,000 in all. The personal property of Mrs. Coghlin amounted to about $33,000. and her .real estate to about $700,000. Mr. Coghlin in his will, after giving, to his wife, the household property about the homestead, which belonged .to her,. disposed of all his property through the trust to which-I have .referred. It-provided that all of the property, real and personal, should be held in trust by his .executors until the year 1910; if both he and his wife were-dead at that time, and if either survived later than .that, then the trust was-to continue until the survivor died. The will also provided • that the .executor...should give to Mrs. Coghlin whatever, was .necessary, to her support, if she- needed anything in addition .to her own estate, during this period. At the expiration of the trust -the property w.as. to be divided among the children of Mr. and Mrs. Coghlin per stirpes, the. children of any child dead to receive the same share that the child would have received .had it been living, and was thus to be divided among the children and . grandchildren.

In .the. codicil,. to which reference has been made, which was executed on June 17, 1896, the. provisions ■ as to the trust were altered in some respects. It w.as provided in the codicil, that instead of a division being made by the executors, as provided under the will, the division of-the estate should be- made at .the expiration of the trust.by three “friends,” as they were.called, of Mr.. Coghlin, John S. Kountz, Charles F. Adams and Lawrence Newman, if they should.be living,, and in case any one of them was dead, the probate court should appoint a man to serve.- They were to report their division of. the estate and that, should be binding upon the executors, who should make the division according to the report of-these three persons. The codicil provided further that in the final, distribution of his estate they should take into consideration the,estate, of his-,wife, Ella, Coghlin,,.apd the amount which, each ,of the beneficiaries received from her estate, and .the two estates were, to be treated as one estate, and, the property, divided so that the diyisipn would be equal among, .the various beneficiaries, taking into consideration the property which they, got from the estate of -their mother, Mrs. Qoghlin. The codicil-to-the will, of Mrs..Coghlin, executed upon the,same day, maderthe same provision-as. to,her estate. In. the. will of Mrs. Coghlin there, was.-the-..same;',provision in.regard-.to a trus^ (after making certain special bequests,and,.-devises), the.-same^proyisions .as,those contained ip the will- of Mr. Coghlin, providing that the property be retained in trust until 1910, and the codicil provided in terms identical’with those used by her husband in’ his codicil, that what her children received from, the estate of her husband was to be taken into considération and the two estates were to be treated as one estate. With these two wills thus made- and executed and the codicils thereto, Mrs. Coghlin died three months' before her husband, and her will, with the codicil, was tendered for probate and probate was refused, and it never went info effect ancL never had any legal existence as a will.

It is claimed that considering the two wills together, they must be’ regarded as a joint will and the will of Mr. Coghlin must be regarded as a part of the testamentary disposition of the property under a joint will, and that a trust so created is invalid.

It was held in Walker v. Walker, 14 Ohio St. 157 [82 Am. Dec. 474] :

“A joint will is unknown to the testamentary law of this state, and is inconsistent with the policy of its legislation. And where a husband and wife, each being the separate owner of property, join m the execution of an instrument in the form of a will, and treating the separate property of each as a joint fund, bequeathed legacies and devised lands to divers persons, the same cannot be admitted to probate as the joint will of both parties, nor as the separate will of either.
“Although some of the provisions contained in the body of such will may be, in form and effect, several; yet, inasmuch as the provisions of such will partake of the nature’ of a compact, in which such provision is influenced by all the rest, all the provisions of the will must stand or fall together.

The will of these two parties] Mr. Walker and his wife, was jointly executed and attested and undertook to make a joint disposition of their property, some of their property being joint property and some owned in severalty. The Supreme Court held that this could not be done. The court say, on page 166 of the opinion:

“And the ease is one in which two parties, husband and wife, attempt to make a will which is not joint in form merely, and capable only of a several operation and effect; but one which is joint in substance; where the parties to it are severally owners of property in their individual right; where they attempt jointly to dispose of the property of each, and to treat it as a joint fund, jointly devising the real property of the wife, and jointly bequeathing legacies out of the personalty of both, without designating the proportion in which the personalty of each or either shall contribute for their payment; and from which it is evident that the provisions of the instrument must have been a matter of negotiation between the parties, and in which the disposition which each of the parties would be willing to make of his or her property would, of course,' be influenced and modified by the dispositions which would affect the property of the other. In short, if there can be such a, thing as a joint will, this is a joint will.”

After Mrs. Walker’s death, Mr. Walker, disregarding this will', disposed of some of the property, thus indicating, so far as that property was concerned, his intention not to abide by this will. The great objection that is made to joint wills by the courts, so far as I can discover, is (especially where property held in severalty'is undertaken to be disposed of by two or more) that such a will is irrevocable by either, without the consent of the other, and this, the courts say is foreign and contrary to the very essence o,f a testamentary disposition of property. It is said a will, to be valid, must always be the last will of the person; it is called his “last will and testament;” and that a testamentary disposition of property which binds a man. to stand irrevocably by it takes away from him the power to revoke it or alter it in any respect and «annot be upheld as a testamentary disposition of property; that the nature of a will, some of the authorities say, is always, and must be ambulatory, following the changing moods, likes and dislikes of the author of the will who becomes the testator at deatl}. It is said changes may occur, children may die, or become unfilial, or a son may become crippled, as one case says, and the testator must be left free to change and alter a disposition that he has made of his property by will, and that a document which is of such a nature as to take unto itself the character of a compact, which is irrevocable by either party without the consent of the other, cannot be sustained. That is the doctrine of this case and the doctrine of some other cases. The weight of authority, however, is that joint wills, if they are not changed or revoked during the life of either (each abiding by the will), will be sustained, although the will is executed and attested jointly in one paper; and in Betts v. Harper, 39 Ohio St. 639 [48 Am. Rep. 477], the doctrine of Walker v. Walker, 14 Ohio St. 157 [82 Am. Dec. 474], is somewhat limited. The Supreme Court say in this case, in the syllabus:

“Tenants in common of real estate who are also owners, severally, of personal property, may dispose of the same by will by uniting in a single instrument, where the bequests are severable and the instrument is not in the nature of a compact, but is, in effect, the will of each, revocable by him, and subject to probate as such several will; and where the instrument is not offered for probate until the death of all executing it, the same may then be admitted to probate as the will of each and all such.persons. Walker v. Walker, 14 Ohio St. 157, limited.”

This will which was sustained by the Supreme Court is in one short paragraph:

“We, Agnes Harper and Penrose Harper, of the county of Hocking, in the state of Ohio, do make and publish this our last will and testament, in manner and form following, that is to say: First, it is our will that our funeral expenses and all our just debts be first fully paid; secondly, that all of our property, both real and personal, go to James Betts and John Drue Betts and their heirs forever; lastly, we hereby •constitute and appoint James Betts to be executor of this our last will and .testament, revoking and annulling all former wills by us made and ratifying and confirming this, and no other, to be our last will and testament. ’ ’

The court say, on page 641 of the opinion, delivered by Judge Okey, referring to Walker v. Walker, supra:

“The ease before us is unlike Walker v. Walker. Agnes Harper and Penrose Harper were each the owner of personal property, and they were owners, as tenants in common, of real estate. Bach desired to bequeath her personal property to James Bétts and John D. Betts, and each desired to devise to them her undivided share of the real estate. They eould unquestionably have done this by two instruments, but they could do it as effectually by one. This instrument was, in effect, the •separate will of each. Either could have revoked it, so far as it was her will. On the death of Agnes, in 1872, the instrument might have been admitted to probate as her will; and in 1874 it might have been admitted to probate as the will of Penrose; but in 1875 it was properly admitted to probate as the will of both. The authorities, it will be seen, are in some conflict, but the view we' have stated is supported by reason and the manifest weight of authority.”

In the case of Walker v. Walker, supra, the Supreme Court mention the fact that the singular number is used in the wills act instead of the plural, arguing from this that it was not contemplated by the legislature that more than one person should join in a will. The court in Betts v. Harper, supra, criticise this, and say, on page 641 of,the opinion:

“The provisions of the English statutes and the statutes of the 'various states, upon the subject are precisely similar to our own; and the conclusion that they indicate a policy that two or more persons may not unite in the same instrument in making their wills, whatever the form of the instrument may be, is only reached by a rigid, and, as we think, altogether unwarranted adherence to the mere letter of the statute. The provisions of the statute relating to the execution of deeds are similar and yet nobody has ever doubted that any number of persons having an interest in property may join in an instrument conveying it.”

The case of Cawley is Estate, In re, 136 Pa. St. 628 [20 Atl. Rep. 567; 10 L. R. A. 93], is a comparatively recent case and the authorities are collected to sqpie extent in the opinion and discussed. The court say in the syllabus second paragraph:

“If two or more persons own .property., in commop, there is .no-objection,-, on principle, to their joining in,,a testamentary disposition-pf.it, and this..might be called sa .joint .will., Whether,, after the death .of .one or more.of the. makers, =the surviving maker may revoke such a will, as.to his title, or share of the property devised, not decided.
“Brother and sister joined in.executing a paper .in the following form: ‘I, B C, should I be the first to die, and I, M C, should I be the first to die, give, devise and bequeath, and to the survivor of either of us, all the estate , of the decedenj. for life, with remainder over. Throughout the paper, except in the clause. appointing an executor, the operative words were in the -singular number.
‘ ‘ The instrument .was not a contract, in form or effect; nor, there-being, no joint property or joint devise, was it a joint will. It was. properly a double will, and must be construed and treated as the separate .will .of each maker, as ..fully as though.a separate copy had been-executed by each. Wherefore, after the death of one, it was revocable by the other as to his own property. ”

The brother, died, in this case, .and after that the sister .died- This-joint or double will, made March 16, 1886, was offered for probate. Later, on the s.ame day, a will was presented w^ioh had been executed by the sister after the making of the joint or double document, to-wit, on September 5, 1887. The register of .deeds held that this last will could not ,be admitted to probate. The ease was taken to the next court above the register (the name of the court does not appear in the report), and that -court held that by the making of the subsequent and separate-will she .revoked her disposition of the property as made in this joint document. The opinion of the court' is given in .this volume and it is-quite full upon .that question, holding that the testator had the power to revoke the disposition of her property that .she had made in the joint will; and the .supreme court of Pennsylvania sustain this holding and discuss the question on page 638 of the opinion, citing numerous authorities, among which is the case of Walker v. Walker, 14 Ohio St. 157 [82 Am. Dec. 474]., They say:

“Another class of questions is presented, when two or more persons-make reciprocal testamentary provisions in favor of eaeh other, whether they unite in one will, or each, executes a separate one. Such wills may be described as mutual or .reciprocal. Their validity does not,seem, to be doubted, after the death of the respective testators; but the extent of the. power of revocation in .the -survivor, .after the death of-one. or more of the testators, is a question-still in controversy and.upon-which different conclusions'have-been reached. In -Evans v. Smith, 28 G-a. 98, the will was signed by two, and presented by the survivor .-for probate. No revocation -was attempted, - and the.-only question really before the court was the validity of the-paper as the-will of the deceased signer. The court held-it valid, characterizing it as a ‘double will.’ In,.Lewis v. Schofield, 26 Conn. 452,-a similar will-was presented, .and its validity upheld by the court. In Betts v. Harper, 39 Ohio St. 639, the testators were tenants in common. After-the death of both, it was probated as the separate will of each, and the earlier case of Walker v. Walker, 14 Ohio St. 157, which had-denied the validity of such a will, was distinguished and qualified.”

Other eases are referred to on this page of the opinion. The court say, on page 640, referring to this will:

“Both adopted the same written expression of that desire,-and executed it. The will so made must be -regarded, therefore, as the separate will of each testator, as fully as though the will of each had been separately drawn up and signed. There was no joint property or joint devise. It is not, therefore, a joint will. It .is .not a-contract between the makers in form or in effect. No consideration passed from one .to the other, and none is suggested, except -the .affectionate interest which this aged brother-and sister felt for each other.”

It seems to us that these two papers (Dennis-Coghlin’s will and the will of his wife) do not constitute a joint will, so -as to bring this will--within the prohibition of any-authority that has. been called to our attention. The property disposed of in the two wills is .separate property. Mr. Coghlin had his estate, amounting to nearly $1,000,000, and Mrs. Coghlin had her estate, amounting to -something more than $700,000. Both desired, apparently, that their property be held in trust until the year 1910, or longer if either survived longer; .the trust was to continue until the death of the survivor,'- and both desired that their property should then be divided among their children, share -and share alike, .and each provided for the same manner of division and each desired that their children in the final disposition of their estates should have the same amount of property in valué, considering the estate .of both and. the share that each child got from the estate of the other. The wills were executed and attested at different times and disposed of different-'property — separate property and- separate estates. They -do - not seem -to have taken the form of a -compact or an agreement, which Is regarded as objectionable by some of the authorities, but they are separate and distinct testamentary dispositions of property although the disposition in each is practically identical with that of the other.

There is nothing that prohibits a husband and wife from disposing of their property by will in the same manner- and so that their estates shall take the same course and be distributed in the same way after their death, or shall be distributed at the same time after their death among their children, looking to the welfare of the children and desiring that each shall have the same share considering the estates of both. This form of a disposition of their property could not have been brought about, of course, without discussion between them; that is clear; the matter must have been talked over and each must have known the manner of will that the other made, but that would not invalidate the disposition, so far as we are able to discover, or make it objectionable on the ground that it was a joint will. But, in any event, in this ease it appears that there never was in fact but one legal will; there never was in fact but one will.

While Mrs. Coghlin had undertaken to make a will, her will was invalid, null and void, and so held when offered for probate; and this was done before the death of Mr. Coghlin, for according to the petition, she died three months before his death, and the petition alleges that upon her death her will was offered for probate and probate refused. So that at the time of his death, with his will standing unrevoked and unaltered, h;s wife’s will having been held null and void, there being no allegation to the contrary, it would be presumed that'Dennis Coghlin knew this to be the fact. At least there is no allegation in the petition that he did not know it, and with no will of his wife in existence at the time of his death, his will is left as the testamentary disposition of his property. But, regardless of that, if his wife’s will had been admitted to probate, or if he had died first leaving her with her will to be afterwards admitted to probate, in our judgment, these two documents, taken together, are not within any rule of law prohibiting such a testamentary disposition of property. We think that while they refer to each other and each refers to his or her estate and to the estate of the other, they are in reality and in fact separate and distinct dispositions of property and separate wills, and that either had the power to revoke his or her will if he or she saw fit to do so. But neither of them attempted to revoke the will so made.

The ultimate object of this action, or its real object, is a partition of the real estate described in the petition; to -set aside the trust and partition the real estate among the legal heirs of Dennis Coghlin. It is said that with Mrs. Coghlin’s -will declared null and void, this estate cannot be divided as provided for in this will. Whether that is true or not, we do not think it necessary to decide at this time; that question will come up properly when the time comes for a distribution of the estate, at the expiration of the trust January, 1910. That does not affect the trust itself; that does not affect the provision of Mr. Cogh-lin ’s will that his estate should be held in trust until January, 1910, the heirs until that time to receive only the income of the estate. What effect the invalidity of Mrs. Coghlin’s will may have upon the distribution, if any, at that time, we shall not now discuss or decide. The main object and purposes of this will, evidently, was that 'the property should be held in trust, the heirs not to receive the property or to have any power to dispose of it in any manner until the expiration of the trust, “they receiving during that time only the income of the estate. This was the main feature of this testamentary disposition of this property. That is not affected in any way by the death of Mrs. Coghlin or hy the fact that her will was not admitted to probate, or the fact that she had made a will of a similar character, so far as the trust was concerned, and it is the trust provision of the will, so far as it relates to the real estate; that is sought to be set aside here in order that it may be partitioned among the heirs of the estate. It is not asked that the trust, so far as the personal property is concerned, shall be set aside or altered in any way. The demurrer to the petition will be sustained and the petition dismissed.

Parker and Haynes, JJ., concur.


author: PARKER, J.

text:
    CONTRACTS — EVIDENCE.
    [Lucas (6th) Circuit Court,
    January 25, 1904.]
    Parker, Hull and Haynes, JJ.
    Toledo Paper Box Co. v. American Roll Wrapping Paper Co.
    Parol Evidence Inadmissible to Establish Parol Modification of Parol Agreement, When.
    Where a written order for goods, stating, the time when the goods shall be shipped, is accepted in writing, but with a modification as to the time of shipment, with respect to which modification the party giving the order makes no objection, and such written communications contain all the essential terms and elements of a contract of sale, and no mention is made therein of prior oral negotiations or agreement between the purchaser and the agent respecting the time of shipment, parol evidence is not competent to support a claim by the purchaser that a different time for the shipment of the goods was agreed upon orally between him and the agent of the seller, and that his subsequent order was given in pursuance of and was based upon such prior oral agreement.
    Error to the court of common pleas of Lucas county.

      Lewis W. Morgan, for plaintiff in error...
    William H. A. Read, for defendant in eiror;
   PARKER, J.

The American Roll Wrapping Paper, Company recovered, a. judgment in the court of common pleas, against The Toledo Paper Box Company, on account of some paper of a special sort which was ordered by the plaintiff in error from the defendant in error and received by it. By way of cross-petition or counterclaim, rather, the plaintiff in error claimed damages on account of delay in furnishing this paper; it- claims that it was to have been furnished within ,a certain number of days .alter the order was given and,that it was not then,furnished; that it was not furnished until some months after, whereby it lost the use ,of it and so it became dead and useless material upon its hands and it was subjected to a financial loss.

It appears that the order given by plaintiff in error was in writing —sent by mail. It described the paper that it desired, set forth the price that it expected.to pay and set a time for the delivery of the paper. The order was accepted by a written communication, but with a qualification as to the time of delivery. The paper was not forthcoming at the time promised by this written acceptance (though, that time was not made very definite) and the parties had a great deal of correspondence, the box company urging the paper company to forward the paper and the latter company promising from time to time that it would have the paper sent forward in a short time, in a few days, setting different dates and times; but it seems according to these letters and the evidence in the case, to have been delayed by the breaking down of machinery in the factory, and in other ways; and after a while the box company cancelled the prder and the paper company recognized the cancellation. Then the paper box company wrote forward again to the paper company saying that if it could ship a part of the paper by a certain date, it might rebook the order, and the order was then re-booked and there were more delays and further correspondence on the subject, and finally the paper was received, but after the resulting loss and damage as claimed by the plaintiff in error. The paper box company claims that this paper was to have been delivered to it or shipped to it within six days’ time after the order was given.' In support of this contention it offered to prove that in conversations and oral negotiations between an-officer of the box company and the agent of the paper company, at the place of business of the former,, in. Toledo,, some time before this written order was sent forward, the agent of the paper company had agreed that if the order should be placed with the paper company, the goods would be furnished within six days. This offer to prove was rejected by the court, the court holding that the evidence as to the oral negotiations and 'oral agreement was' inadmissible under the circumstances, because the order- and the acceptance taken together, amounted to a complete contract in writing; and because of the exclusion of this .evidence the box company was not able to make its case that it undertook to make upon its counterclaim. The result was that the jury was directed to return a verdict in favor of the paper company;- and it is on account of this ruling that the plaintiff in error prosecutes error in this court.

I shall not take time to read this correspondence. I have stated, in a general way the tenor and "effect of it, and we simply announce our conclusions upon it as follows:

Where a written order for goods, stating a time when the goods shall be shipped, is accepted in writing but with a modification as to the time of shipment, with respect to which modification the person giving the order makes no objection and where such written communications contain all the essential terms and elements of a contract of sale, and no mention is made therein of prior oral negotiations or agreements between the purchaser and the agent'of'the seller respecting the time of shipment, parol evidence is not competent to support á claim by the purchaser that a different time for the shipment of the goods was agreed upon orally between him and such agent of the seller, and that liis' subsequent written order was given in pursuance of and was based upon such prior oral agreement. The admission of such evidence would be .a violation of the well-settled rules respecting: the admission of oral evidence to modify the terms of a written contract-subsequently executed and by its terms covering the whole subject matter. We hold that the ruling of the court of common pleas upon this matter was correct, and the judgment of that court will .be affirmed.

Hull and Haynes, JJ., concur.


author: MARVIN, J.

text:
    MALICIOUS PROSECUTION.
    [Lorain (8th) Circuit Court,
    October 8, 1903.]
    Hale, Marvin and Winch,. JJ.
    Frank Lieblang v. Cleveland City Elec. Ry. Co.
    1. Alleged Malicious Prosecution Must Have Terminated in Favor of Accused.
    An action for malicious prosecution cannot be maintained until the prosecution complained of has finally terminated in favor of the accused, either by an acquittal or the dismissal of the prosecution and his discharge by the proper authority, and the fact of such favorable termination must be alleged in the petition, and when put in issue by the answer must be established by the evidence, and'an assumption by plaintiff’s counsel in his examination of plaintiff at the trial that the prosecution has so terminated is not sufficient to establish such fact.
    2. Improper for Counsel to Assume Facts not in Evidence in Malicious Prosecution.
    It is improper for plaintiff’s counsel to assume in his examination, of witnesses that an alleged malicious prosecution has finally terminated in favor of plaintiff, where there is no evidence offered tending to show that-fact.
    Error to court of common pleas of Lorain county.
    Kerruish, Chapman & Kerruish, for plaintiff in error.
    Squire, Sanders & Dempsey, E. G. Johnson and Hale C. Johnson, for defendant in error.
   MARVIN, J.

(Orally.)

The case of Frank Lieblang against The Cleveland Electric Railway Company is brought here upon proper proceedings for a review, complaint being made by Liebláng, who was the plaintiff below as well as the plaintiff in error, that error to his prejudice was committed, by the trial court upon the trial.

The suit was brought for malicious prosecution. The petition setting out, stating it briefly, that- The Cleveland Electric Railway Company conspired with The Citizens Electric Railway Company, of Detroit, and certain natural persons in the city of Detroit to have Lieblang arrested upon a false charge in Detroit, and prosecuted upon such false charge; that he was arrested; that he was in jail for several days, and that for many months he was under bond and required to appear and did appear a good many times in the city of Detroit; and that he was therebv greatly injured.

The petition further states, as was clearly necessary, that the prosecution in Detroit against him was terminated, and he states that the case or prosecution was terminated by a nolle being entered by the prosecuting attorney with the permission of the court.

The answer denied that The Cleveland. Electric Railway Company was in any wise responsible for the arrest of Lieblang, and denies, for want of knowledge, that the prosecution begun in Detroit was terminated at the time the suit was brought. That raised the issue stpiarely, and put the plaintiff upon proof that the prosecution in Detroit was ended.

It is settled without any question in Ohio that before a suit can be brought for malicious prosecution, the prosecution must be ended, and must have ended either by an acquittal of the accused or by a dismissal of the prosecution.

The last case to which our attention has been called on that subject is Douglas v. Allen, 56 Ohio St. 156.

“In order to maintain an action for malicious prosecution, it must be shown that the prosecution was legally terminated before the com-' mencement of the action; but it is not essential that the plaintiff shall have been acquitted of the charge on a trial of the merits; the entry of a nolle prosequi, followed by his discharge, is sufficient.” '

Prior to that the court had said in another case (that of Fortman v. Rottier, 8 Ohio St. 548, 550) that the prosecution must have ended by an acquittal of the accused; but in that case that question was not raised, and was only incidentally stated. But in Douglas v. Allen, supra, Judge Williams says: It is not necessary, clearly ought not to be necessary, that the case should be terminated by an acquittal; because if' that were true, and there was a nolle entered it would leave the party remediless, although he had a good case, although he had thus been wrongly dealt with. Attention was called to this in the argument of the case in this court by counsel for the defendant in error.

Counsel for the plaintiff in error was inquired of if there was that defect in the evidence, and he answered he did not think that there was any. direct proof of the prisoner’s discharge, or plaintiff’s discharge, but that that was conceded. „ .Everybody assumed that that was so, overlooking the fact that in the trial his attention was called to it.

A good many questions were asked by counsel for the plaintiff of the plaintiff when he was upon the stand. Questions which assumed he had been discharged. One of them is found on page 122. Q. “From the time of your arrest on the thirty-first day of August, 1900, until the time of your final discharge on the second of July; 1901, you may state to what extent by your travels hither and thither and your imprisonment your business was interfered with ?” .

Now a good many questions of that sort were asked, and objections to them Sustained,- and the court, on page 124, called attention' of counsel to the fact-that he-was assuming that there was a final discharge of the plaintiff- from the prosecution in Detroit, and said, “The question has in it,” speaking of a question to which an objection' had been made, and' which was then being considered, “The. question has in it, *And your final discharge,’ you are assuming a thing that ought not to be in your question. NowT hold that the time that he spent in Detroit in the court, you may show those' transactions; hów long he was before the court, in the court room, the incarceration, in the hands of the officers, any of those things. I supposed you had covered all of that.”

■ Calling his attention to the fact that the only defect in his question he was asking was, he had failed so far to show any discharge or termination of the prosecution in Detroit. And still, after a careful search of this record all'through, we can find nothing which squints toward that fáct. The .nearest is- the' assumption by counsel' for plaintiff that he was finally discharged, and he was cautioned he must not ask that, because of the fact he failed to show it. And still the case went through and he- did not show, and so far as we can find there was no effort to show there was a final discharge. That being true, it is not necessary to comment upon what the court said below, and the reasons why he took the case'from* the jury. It is enough to say he was justified in taking the case from the jury, for 'there could háve been no-verdict that could have been sustained for the plaintiff; there was not a scintilla of evidence upon this material point-^-thát the prosecution was ended. That being true, without any discussion of the further questions, although in examining this question we have had to look the record through, and learned pretty nearly what there is in that record, but without any discussion as to any other question, that was fatal to the plaintiff’s case, and justified the court in'directing a verdict for the defendant, and the judgment is affirmed.

Hale and Winch, JJ„ concur.


text:
    MUNICIPAL CORPORATIONS — ASSESSMENTS.
    [Hamilton (1st) Circuit Court,
    1904.]
    Giffen, Jelke and Swing, JJ.
    R. H. Thornton v. Cincinnati.
    1. CONSTITUTIONAL LIMITATIONS UPON . STREET ASSESSMENT MAT BE WAIVED.
    The constitutional limitation that special assessments against property abutting on a street improvement to pay the cost thereof must not exceed the benefits, may be waived by contract; or, the abutting owners may, by conduct in pais, estop themselves from pleading such limitation. Hence, where such owners severally and jointly agree, in a petition for a street improvement and under which it was made, to pay the assessment of a certain proportion of the construction and “irrespective of the number of owners of property signing this petition,” they are thereby estopped from pleading that the assessments- exceed the benefits, or that the owners of three-fourths of the abutting front feet did not join in the petition as'required by Sec. 2272 Rev. Stat. Whether the improvement was made under Sec. 2272 Rev. Stat., or under' the municipality’s general grant of power, is' immaterial. Birdseye v. Clyde (Vil.), 61 Ohio St. 27, distinguished.
    2. Municipalities Have Power to Make Street Improvements Without Petition oe Abutters.
    The municipalities of this state have jurisdiction and power to make street improvements without the filing of a petition by abutting property owners therefor.
    ERROR to court of common pleas.of Hamilton county.
    F. M. Coppock, A. T. Brown and O. W. Kuhn, for plaintiff.
    Chas. J. Hunt and J. V. Campbell, for defendant.
   JELKE, J.

The petition to the board of administration under which this improvement was made reads as follows:

“We, the undersigned, owners of property represented by the feet front abutting upon Fairview avenue from the south end thereof to Straight street, hereby petition your honorable body for the improvement of said Fairview avenue between the points aforesaid, by asphalt pavement and granite curbs, the roadway to be forty feet in width, to such changed grade as your board may establish. And we respectively agree not to make any claim for damages on account of such changed grade, and for the assessment for the whole cost of such improvement except fifty per cent, of the entire cost of the improvement and the cost of intersections, to be made and collected in ten (10) equal annual ■i-nstan-mp.nts; and in case the bonds of the city are issued in anticipation of the assessment thus petitioned for, then that the interest on said bonds be collected in ten (10) installments, the same and in like manner as the assessment installments aforesaid, or that the interest installments be numbered and assessed according to the number of years the bonds may have to run.
“And in consideration of the city’s making said improvement, we and each of us further agree with each other and with said city, and we jointly and severally bind ourselves, to pay such assessment irrespective of the number of owners of property signing this petition.”

Counsel for the city claim that by reason of signing this petition the signers thereof are estopped from setting up any statutory or constitutional limitation on the amount of the assessment and from claiming that such assessment should be anything less than aeutal cost, or that the same exceeds the special benefits to their respective properties. Counsel for plaintiffs herein, signers of said petition, claim that they are not so estopped and rely upon the case of Birdseye v. Clyde (Vil.), 61 Ohio St. 27 [55 N. E. Rep. 169]. Special emphasis is laid upon the language of the Supreme Court on page 38:

“And, it can hardly be supposed that the plaintiffs who signed the petition for the improvement intended thereby to donate their entire property to the public, or, what is practically the same thing, consent to an assessment that would amount to its confiscation. They evidently contemplated that some special benefit would accrue to them from the construction of the improvement, which could not possibly be the case if the substantial value of their property were taken to pay the assessment laid upon it. The petition must be construed in the light of this’ situation, and so as to effectuate the manifest intention of the parties. ’ ’

The improvement in the village of Clyde was made under a special act, 90 O. L. L. 434, which, among other things, provides:

“Provided, however, that two-thirds of the cost for improving and paving any street, and of constructing a sewer under such paved part, for which said street improvement fund shall be used, shall be assessed on the real estate bounding and abutting thereon, and according to the foot frontage of the real estate so bounding and abutting as provided by the laws of the state of Ohio.”

The Supreme Court expressly holds that the reference to “the laws of the state of Ohio” brings See. 2270 Rev. Stat. into contemplation and makes it part of the body of law applicable to the improvement in the village of Clyde. Section 2270 Rev. Stat. provides a limitation of twenty-five percentum of the tax value of the property assessments.

The Supreme Court does not deny the application of the doctrine of estoppel in Birdseye v. Clyde, supra, but says that the estoppel shall not extend beyond the intention which the court finds in the paper which the property owners signed. The court finds that said petition, was signed with the limitation of Sec. 2270 Eev. Stat. in view.

The ease of Birdseye v. Clyde, supra, went to the Supreme Court: from the sixth circuit. That case came on for application before the' judges of that circuit in the case of Blair v. Cary, 24 O. C. C. 560, and in the course of their opinion the court, per Parker, J., say on page 571:.

“It is urged by counsel fo'r plaintiff in error that the ease off Birdseye v. Clyde (Vil.), 61 Ohio St. 27 [55 N. E. Rep. 169], is in-point here and has some influence upon the construction of this provision of See. 2272 Eev. Stat., but we cannot so understand it and we do-not think that is true. In that case, the act under consideration was a. special act for the city of ’Clyde, and it contained no limitation whatever; it did not'contain a provision, as this section does, that the assessment should be a valid lien against the property, although it might exceed twenty-five percentum of the value; it contained no provision upon the subject.
“Our construction of the law was that that being the only act invoked (the petition being under the act), and it containing no limitation, there was no limitation, and that, therefore, they might disregard the twenty-five per cent, limitation fixed in Sec. 2270 Eev. Stat. The Supreme Court, however, took a different view; it held that in the absence of any express provision, the limitation fixed by Sec. 2270 Eev. Stat. should be read into it and be considered as a part of the act, and that for the protection of persons proceeding under that special act as well as others. But here we have a case of an express provision applicable to the city of Toledo to the effect that notwithstanding an assessment may exceed twenty-five per cent, of the value, it shall be valid as against persons signing the petition; and we think, therefore, that the plaintiff has no ground of complaint upon that score.”

The improvement in the case at bar was either made under Sec. 2272 Eev. Stat., or under the general powers of a municipality to make improvements and assess the" cost thereof not-exceeding special benefits on 'the abutting property irrespective of specific statutory provision.

Section 2272 Eev. Stat. provides:

“When a petition subscribed by three-fourths in interest of the owners of property abutting upon any street or highway of any description between designated points, is regularly presented to the council for the purpose, the cost of any improvement of such street or highway maybe assessed and collected in equal annual installments, proportioned to the whole assessment in a manner to be indicated in the petition, or if not so indicated, then in the manner which may be fixed by council.

It is said that three-fourths of the abutting front feet have not joined and hence this improvement and assessment cannot have been under See. 2272 Rev. Stat.

But the signers of the above petition have expressly estopped.them-selves from making this objection, having agreed with the city and each other “to pay such'assessment irrespective of the number of owners of property signing the petition.” Whether this improvement was made under Sec. 2272 Rev. Stat., or the city’s general powers, is all'the same because the objection here is that assessment beyond the special benefits is unconstitutional.

There is no doubt of this constitutional limitation, but this may be waived by contract or parties by conduct in pais may estop themselves from setting it up. State v. Mitchell, 31 Ohio St. 592; Tone v. Columbus, 39 Ohio St. 281 [48 Am. Rep. 438].

Now let us do here what the Supreme Court did in Birdseye v. Clyde, supra — find out what the signers intended by what they said in the paper which they signed and then hold them bound by estoppel to that extent and no further. There is no ambiguity in what they said; “they asked the city to make the improvement and said they would pay the whole cost thereof, less fifty per cent, and the cost of intersections. They said to the city, we will be the arbiters of our own economy; we want this and we -will pay for it and we will take the chances and responsibility of our property being sufficiently specially benefited; else the petition would be a nullity and have no force and significance. The city could have done, what the property owners say it could have done, without the petition as well as with it.

The petition in Birdseye v. Clyde, supra, had to be read with and have read into it the special law and all the other law which the special law drew into itself. "

The petition in the case at bar was not needed to confer jurisdiction or power, its sole office was to avoid and surrender the constitutional limitation.

We find nothing in the case of McGlynn v. Toledo, 12 Circ. Dec. 15 (22 R. 34), out of harmony with this conclusion. Hence we are of opinion that the signers of the petition in the case at bar. are estopped from setting up the constitutional limitation of special benefits.

The assessment should be reduced by so much of the cost of intersections as was included therein.

Giffen and Swing, JJ., concur.