author: Matthews, J.

text:
    Reichman, Appellant, v. Drake, Appellee.
    (No. 7415
    Decided May 7, 1951.)

      Messrs. Cors, Scherer, Hair é Bartsock, for appellant.

      Mr. Milton D. Tobin, for appellee.
   Matthews, J.

On September 10, 1985, the defendant’s husband took possession of premises known as 410 Walnut street in the city of Cincinnati as a lessee of The Thomas J. Emery Memorial Estate. He continued as such lessee until his, death in 1938, whereupon the defendant became lessee of the premises, lu 1944, the parties entered into a new lease for a term of five years, commencing on June 10, 1944, and expiring on June 9, 1949. On June 11, 1948, The Thomas J. Emery Memorial Estate, the lessor, notified the defendant, the lessee, in writing, that the lease would not be renewed at its expiration. The lessee requested the lessor to renew the lease, and, as a result of such request, the lessor, on September 14, 1948, again notified her that the lease “would not be renewed at its expiration date, viz., June 9, 1949.” Although defendant during the time from September 14, 1948, to June 9, 1949, tried to get the lessor to recede from its position not to renew the lease, there is no claim or evidence that the lessor did so or that it gave the defendant any basis for thinking it would do so. Nor did the plaintiff give defendant any right to expect that she would be permitted to hold over.

In the meantime, The Thomas J. Emery Memorial Estate, on February 4, 1949, leased or contracted to lease these premises to the plaintiff for a term of five years, commencing on July 1, 1949, and expiring on June 30, 1954. This lease or agreement contained a provision that possession would be given when the defendant vacated the premises. The defendant was informed of this lease or agreement to lease within a day or so of its execution.

The defendant did not vacate the premises on June 9, 1949, and The Thomas J. Emery Memorial Estate instituted proceedings in forcible entry and detainer against her. The defendaht did not vacate the premises until on or about November 1, 1949.

This action was instituted on July 14, 1949, while defendant was still in possession of the premises, to recover the damages sustained by reason of the defendant’s refusal to vacate the premises on July 1, 1949.

Upon trial, a< the conclusion of the plaintiff’s evidence, the defendant moved for an instructed verdict. This motion was granted, and on the verdict thus returned, judgment was entered.

It is from that judgment that this appeal was taken.

The first question presented is whether the facts set forth present an issue for submission to the jury as to the assessment of such damages as the law permits for the failure and refusal of the defendant to vacate the premises on the expiration of her lease. In other words, did her failure to vacate violate any right of the plaintiff?

Now what right had the plaintiff? It is undisputed that he and The Thomas J. Emery Memorial Estate had executed a written document in the form of a lease giving to the plaintiff a leasehold for five years from July 1, 1949, which document contained a provision that, possession was to be given when the premises were vacated by the existing tenant.

In 32 American Jurisprudence, 51, Section 28, it is stated that “the fact that the term of the lease is to commence in future does not prevent the agreement from being a present demise,” and m 32 American Jurisprudence, 78, Section 63, the universally recognized rule is stated that “a leasehold estate, however, such as a term for years, may be created at common law to commence in futuro, for in such a case a present interest vests, called an Hnteresse termini,’ although not an interest in possession until the lessee enters into possession.”

Johnston v. Corson Gold Mining Co., 157 F., 145, 15 L. R. A. (N. S.), 1078, involved a lease similar in. many respects to the terms of the lease in the case at bar. It was held, as stated in the first paragraph of the L. R. A. (N. S.) headnote:

“A provision in a lease that, if the lessor cannot deliver possession as contemplated, delay in delivery of possession will not work an abridgement. of the term, but shall operate to defer the date of its commencement does not change the character of the con-, veyance from an executed to an executory contract.”

At page 148, the court said:

“A lease to commence in futuro is grantable. Whitney v. Allaire, 1 N. Y., 305; Becar v. Flues, 64 N. Y., 518. The lessee acquired an interest in the term, which he could assign, and from which he could maintain ejectment without any further act upon his part, if possession was withheld after his right of entry became complete.” See, also, 32 American Jurisprudence, 50 et seq.

In the Johnston case, the court held that, as the plaintiff had ar, adequate remedy at law by ejectment, an action in equity to remove cloud, etc., could not be maintained against one in possession of the leasehold.

In November or December, 1949, a new lease was entered into between the plaintiff and The Thomas J. Emery Memorial Estate, providing for the commencement of the term at the time when the plaintiff obtained possession of the premises.' Both copies of the lease or agreement of February 4, 1949, were destroyed, and for that reason the parties to this action were forced to rely on oral testimony as to its terms. However, the parties were in agreement as to its essential terms, and we conclude that it was a lease transferring to the plaintiff a leasehold estate in the prem--ises as distinguished from a contract for a lease, ereating contractual rights but conveying no estate in the land.

As will appear later, we do not consider the distinction between a lease and an agreement for a lease as material in this case. In either event, the plaintiff would have rights created thereby, which could not be violated with impunity. We think the authorities warrant the statement that, even assuming no lease or agreement for a lease had been consummated and that the parties had not concluded their negotiations, a third person could not maliciously interfere and ptevent the negotiations from resulting in a contract without incurring liability. And the fact that the parties substituted a new lease for the old one would have no effect upon a cause of action already accrued.

We inquire next whether the action of the defendant constituted an infringement of the plaintiff’s rights, for which the law affords a remedy. Of coarse, no contract existed between the plaintiff and defendant, and, therefore, no action ex contractu could exist. But plaintiff had rights, tangible or intangible — property rights — recognized by law. Did defendant’s conduct constitute an infringement of those rights? If so, his conduct was a wrong creating a cause of action ex delicto.

In 4 Restatement of the Law of Torts, 49, Section 766, the law is summarized as follows:

“Except as stated in Section 698, one who, without privilege to do so, induces or otherwise purposely causes a third person not to (a) perform a contract with another, or (b) enter into or continue a business relation with another is liable to the other for the harm caused thereby.”

Section 698 referred to in this rule relates to contracts and other relations looking forward to marriage, and is irrelevant to this situation.

That the defendant did interfere in the relation between the plaintiff and The Thomas J. Emery Memorial Estate is clear from the evidence and her continued wrongful possession of the premises made h§x-~ interference effective. She made it impossible for the lessor to place the lessee in possession on July 1, the commencement date of the term, as contemplated by the parties to the contract.

The rule deduced from the decided cases on the subject of prevention of performance of a contract is stated in 30 American Jurisprudence, 71 and 72, Section 19, as follows:

“The weight of authority supports the rule that an action will lie against a person who, otherwise than in the legitimate exercise of his own rights, procures a breach of any contract, even though it is not a contract of employment. The theory of this doctrine is that the right to' perform a contract and to reap the profits resulting from such performance, and also the right to performance by the other party, are property rights which entitle each party to protection, and'to seek compensation by action in tort for any injuries to such contract.”

And, at page 83, Section 33, ibid., the rule applicable to rights arising against one who prevents an entering into a contract is stated as follows:

“The act of maliciously inducing a person not to enter into a contract with another, which he would otherwise have entered into, is actionable if damages result, according to a view which may now be said to prevail. A cause of action will usually be recognized where a party would receive a contract except for the malicious, fraudulent, and deceitful acts of a third person, the right to make contracts without interference being one which the courts will protect. ” See, also, Leibovitz v. Central National Bank, 75 Ohio App., 25, 60 N. E. (2d), 727.

The defendant testified that she had no ill will, spite, or malice toward the plaintiff, and the plaintiff, conceded that the defendant was not actuated by ill will toward him. On this factual basis it is urged upon the court that malice is an essential element of a cause of action in this category, and that the record shows the absence of this essential element. That contention presents the question of what is meant by the term “malice” in this connection. This subject is discussed in 30 American Jurisprudence, 75, 76, Section 23, whore it is stated:

■ ‘ ‘ Malice, in some form, is generally implied from the act of interference with contract relations, and is declared to be an essential ingredient-in such cases. The lack of scientifically accúrate terminology, however, has militated against clearness upon this point, both in conception and discussion. Thus, the word ‘malice’ which, in its technical legal sense, is the intentional doing of a harmful act without legal justification or excuse, or, in other words, the wilful violation of a known right, is sometimes used in the sense of ill will, or even as denoting a desire to harm irrespective of the presence or absence of ill will. The malice, however, which makes one liable for procuring a breach of contract is malice in its legal sense, and whether a wrongdoer’s motive in interfering is to benefit himself or to graitfy his spite by working mischief to another is immaterial; malice in the sense of ill will or spite is not essential. In other words, many courts hold that ‘malice’ or ‘ill will,’ as those words are commonly understood, is not necessary in order to sustain an action for inducing a breach of contract, but that ‘malice,’ in this connection, denotes unjustified interference with the contractual relationship. It is not necessary to prove actual malice against a defendant in order to establish a cause of action against him for knowingly procuring the breach of a third person’s contract with the plaintiff. ’ ’

It will be seen that personal ill will, spite, or hatred is not an essential element in this cause of action.. In this, as in most actions in tort, such elements might become important in the event it was sought to recover— punitive damages. Their significance, however,. is limited to their effect on the amount of the recovery.

We conclude that the plaintiff proved that the defendant ’s conduct violated his property rights, leaving'" only the question of whether there was any evidence of damage. We have examined the record to determine that question, and we should determine the rule or measure of damages in this sort of a case.

As already noted, the defendant, with full knowledge of the facts and without even a prima facie claim of right, prevented the lessor from giving possession of the leased premises to the plaintiff, notwithstanding her knowledge that the plaintiff was preparing to take possession and was relying upon her to vacate the premises. Under such circumstances it would appear that the defendant could not be viewed by the law in any more favorable situation than the lessor, if it had arbitrarily refused to deliver possession to the lessee.

A lessor in that situation would be required to pay at least nominal damages and .such actual damages as was in the reasonable contemplation of the parties as a consequence of the breach.

In 32 American Jurisprudence, 54, Section 32, it is said:

“While there is authority to the effect that only nominal damages can be recovered for a breach by the proposed lessor of his,agreement to give, a lease, provided the proposed lessor acts in good faith in entering the agreement, according to the.great weight of authority in the United States, the proposed lessee is entitled to recover as general damages the actual value of his bargain as shown by the excess, if any, of the actual rental value of the premises over the agreed rent. This, however, is not necessarily the extent of his right of recovery; under special circumstances warranting it, damages may also be recovered for losses that are the natural, direct, and necessary consequences of the breach where, they are capable of being estimated by reliable data, and are such as should reasonably have been contemplated by the parties. Thus, where there was a wilful -refusal on the part of the proposed lessor to give possession, special damages consisting of expenses incurred by the lessee in preparing to remove to and occupy the premises have been held recoverable.”

In James H. Herron Co. v. Jones, 28 Ohio App., 190, 196, 162 N. E., 624, it is said:

“The measure of damages appears settled by practically all the authorities to be ‘the difference between the rent .agreed upon arid the market value of the term, plus any special damages alleged and proved.’ ”

In 15 American Jurisprudence, 545, Section 137, it is stated:

“As a general rule the reasonable and necessary expenses incurred in good faith, in anticipation of performance, or in part performance, of a contract, may be recovered as a part of the damages for its breach, especially where the breach consists in preventing performance.”

As the judgment in this case must be reversed and the cause remanded for a new trial, we do not deem it necessary or helpful, to determine what particular items of damage are recoverable. That will depend on what items are shown to have been within the contemplation of the parties and to have been the natural result of the defendant’s wrongful acts. It is clear from the record that the plaintiff suffered some actual damage within this rule.

For these reasons, we are of the opinion that the court erred in sustaining the defendant’s motion for an instructed verdict and in overruling the plaintiff’s motion for a new trial.

The judgment is reversed and the cause remanded for a new trial.

Judgment reversed.

Hildebrant, P. J., and Matthews, J., concur in the syllabus, opinion, and judgment.

Ross, J., not participating.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Battle, Appellee, v. Patsy Auto Sales, Inc., et al., Appellants.

      (No. 7348
    Decided February 20, 1951.)

      Mr. Harry Falk and Mr. Carl B. Rubin, for appellee.

      Messrs. Peterman, Calhoun & McPherson, for appellant Colonial Finance Company.
   Per Curiam.

The plaintiff alleged that he exchanged automobiles with the defendant Patsy Auto Sales, Inc., and to make up the deficiency in value he agreed to pay $4,000 in 24 equal monthly instalments. He then alleged that without his knowledge this balance was “financed as an instalment note for twenty-four months, which note including the principal of $4,000, interest, insurance and other charges not known to the plaintiff, was in the total sum of $5,654.40 payable to the order of Patsy Auto Sales, Inc., at the rate of $235 per month.” He alleged also that this note was transferred by Patsy Auto Sales, Inc., without recourse to the defendant Colonial Finance Company, an Ohio corporation authorized and doing business under the Ohio Small Loan Act.

After alleging the payments he had made on the note, he alleged that the note provided for interest in excess of the rate allowed by law under the Small Loan Act, that the entire transaction was arranged as a subterfuge to conceal the exaction of a usurious rate of interest, and that “the said note and chattel mortgage are void. ’ ’

It will be noted that the plaintiff did not allege that he signed the note with unfilled blanks in it, nor did he allege that the note was not signed by him. His allegation was that the note is usurious and for that reason is void.

The plaintiff’s prayer was for a declaratory judgment defining the rights of the parties and declaring the note and chattel mortgage void, and for other relief.

The defendant Colonial Finance Company answered, admitting that the plaintiff purchased an automobile from defendant Patsy Auto Sales, Ine., and executed and delivered to Patsy Auto Sales, Inc., a note for the unpaid balance of the purchase price in the sum of $4,000, and that Patsy Auto Sales, Inc., endorsed and delivered the note to Colonial Finance Company “without recourse except for a partial guaranty in the sum of $500.”

The defendant Patsy Auto Sales, Inc., answered, admitting that it sold an automobile to the plaintiff, and that it received a note secured by chattel mortgage, which it discounted with the defendant Colonial Finance Company, and then denied each and every other allegation in the petition.

No reply was filed.

Upon the trial of the issues raised by these pleadings, the court found that the plaintiff “is liable only for the following sum, to wit, $4,000 plus interest at the rate of eight* per cent per annum, plus insurance premium, and said plaintiff shall be credited with the sum of $3,999.40 payments on said balance owing.” It is from that judgment that this appeal was taken by the defendant Colonial Finance Company.

No question is raised here as to the sufficiency of the judgment as a declaration of rights. The claim is, rather, that the documents executed by the plaintiff fixed his liability and that so far as the finding of the court departs therefrom it is erroneous.

The record discloses that the plaintiff owned a 1942 Buick automobile which he had bought in 1943, the purchase of which he had financed through the Personal Loan Company and on which he owed $400, secured by mortgage. He came to the place of business of Patsy Auto Sales, Inc., on July 15, 1948, and negotiated for the Lincoln automobile referred to in the pleadings. He and Patsy Auto Sales, Inc., agreed on a price of $6,000, and that Patsy Auto Sales, Inc., would take title to his Buick and allow him $2,000 therefor as a credit, making a balance of $4,000 still due Patsy Auto Sales, Inc. There were items of sales tax and insurance premium, amounting to $190.85, added, but they seem to have no significance, although they are included in the principal of the mortgage and note. He paid the balance of $400 which he owed on the Buick, transferred title thereto to Patsy Auto Sales, Inc., and signed an agreement to buy the Lincoln automobile and signed a chattel mortgage thereon, securing the note.

In the contract or order the details of the transaction are set forth showing the balance of $4,000 remaining unpaid. Below this balance on the printed form with blank spaces is provision for insertion of the terms of payment and in the documents introduced in evidence the blank spaces are filled in to show that the $4,000 was to be paid in 24 monthly payments of $235.60 each. However, the plaintiff testified that when he signed this order or contract those blanks were not filled in and that he was told that he could pay the $4,000 in 24 monthly payments of $175 each. He also signed a chattel mortgage and note, each of which now shows an unpaid balance of $5,654.40, with an itemized statement of the transaction showing the amount of $4,000, which was the unpaid balance to be financed, and the financing charge of $1,654.40 including insurance. The plaintiff testified that he signed this chattel mortgage and note at the request of Patsy Auto Sales, Inc., but that at the time none of the blank spaces were filled in. The record is very vague as to what was said at the time, but it is clear the plaintiff knew that Patsy Auto Sales, Inc., intended to fill in the blank spaces.

Notwithstanding the plaintiff’s testimony that he was told his monthly payments would be $175, his first payment was $235.60, and he continued for the next seven months to pay $235.60 per month.' Thereafter, he made 26 payments, not one of which was $175. It is clear that if he did not authorize the provision for monthly payments, he later ratified it by this conduct.

Section 8119, General Code, provides that a signature on a blank paper delivered by the person making the signature in order that the paper may be converted into a negotiable instrument operates ás prima facie authority to fill it up as such for any amount. We think the plaintiff’s own evidence indicates an actual authority to fill in, but if that is not so, then the law raises a prima facie presumption of authority. Section 8119, General Code, provides also that if, after completion, the note is negotiated to a holder in due course, it is valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled in strictly in accordance with the authority given.

In this case, Colonial Finance Company pleaded the defense of holder in due. course, and the defense was not placed in issue by the filing of a reply denying the allegations of the answer.

If this were an action by Colonial Finance Company on this note and the defendant had pleaded the defenses of usury and that the blanks were filled in for an amount in excess of that authorized, a reply setting forth that Colonial Finance Company was a holder in due course and that the defendant maker was estopped would have presented two grounds of avoidance of the defenses.

We are of opinion that the plaintiff herein is estopped from denying at this time that he authorized the Patsy Auto Sales, Inc., to insert $235.60 as the monthly payment and $5,654.40 as the principal of the note. After having acquiesced for months by making payments in accordance with the note, he cannot now be permitted to take a contrary position. 19 American Jurisprudence, 676 et seq.

This conclusion, however, leaves untouched the defense of usury, which, if it existed, could be avoided only by proof that plaintiff was a holder in due course, and there is no proof that Colonial Finance Company was ignorant of any of the facts.

That brings us to a consideration of the true nature of this transaction. In form, the transaction between the. plaintiff and Patsy Auto Sales, Inc., is clearly a sale or exchange of automobiles with a note to equalize the difference in value. As between Patsy Auto Sales, Inc., and Colonial Finance Company, the transaction bears the outward form of a sale or negotiation of that note with a partial guaranty to the extent of $500 by the payee-endorser. So long as these transactions are accepted at face as what they purport to .be, there can be no usury, because there has been no loan of money and no charge for the use of money. Before it can be found that the transaction is infected with usury, the transaction must be entirely reconstructed as a loaning of money by Colonial Finance Company to Patsy Auto Sales, Inc., and Maple Battle, and, as there is no evidence whatever of any dealings of any description between Colonial Finance Company and Battle at or before the time of this transaction, if there is to be a reconstruction, it must be. on the foundation of the dealings between Colonial Finance Company and Patsy Auto Sales, Inc. Before the form can be disregarded, the evidence must establish an identity of the two in their dealings with the plaintiff.

The only evidence on this subject is found in the testimony of Pat Weintrop, who was called by the plaintiff and who said that he was doing business as Patsy Auto Sales, Inc. He testified that the selling price of the automobile was $6,000, upon which there was a credit of $2,000, leaving $4,000 as the balance, which was to be financed. This means, as we understand it, that some arrangement was necessary so that the buyer could pay that balance in instalments. Weintrop testified that the note was for $5,654.40. He was then asked how that was computed, to which he responded: /‘Well, I don’t know, just exactly. We have an authority of the finance company that tells us what the payments are, a chart.” He then testified as follows:

“Q. Do I understand that the finance company computes in advance how you are to be paid for a balance of $4,000? A. Well, it is much simpler when we have a chart to look at.

“Q. And who supplies you with the chart, do you ' say? A. The finance company we are doing business with.

“Q. In this case? A. Colonial Finance Company.”

All this evidence tends to prove is that the Colonial Finance Company furnished Patsy Auto Sales, Inc., a method of computing the instalment selling price from, a given cash selling price. The only conceivable reason for furnishing this information and the forms was the hope that Patsy Auto Sales, Inc., would discount or sell the note to Colonial Finance Company for the amount that would have been received by Patsy Auto Sales, Inc., had the sale been for cash — in this instance, $4,000 which was paid for the note.

The plaintiff contends that these circumstances stamp the transaction as a usurious lending of money, notwithstanding its form is that of a negotiation or sale of a note. Plaintiff, in his petition, and his counsel, in their arguments, assert that this transaction violates the Ohio Small Loan Act (Section 8624-50 et seq., General Code), but that act applies only to loans of $1,000 or less, and even as to transactions involving $1,000 or less, it is expressly provided in that act that “nothing herein shall preclude the acquiring, directly, or indirectly, by purchase or discount, of a bona fide obligation for goods or services when such obligation is payable directly to the person who provided such .goods or services.” See Section 8624-51, General Code.

This distinction between a loan and a sale or discount of a note, recognized in the Ohio Small Loan Act, has been recognized in all the textbooks and cases on the subject of interest and usury, and, as all states have general statutes limiting interest rates similar to Ohio’s general statute on that subject, the cases are numerous. We shall refer to a few.

In 55 American Jurisprudence, 344 and 345, it is stated:

“Bills and notes, like other property, may be bought .and sold on such terms as may be agreed upon, and a discount at any rate, although paid by a credit to account, is not usurious if value has once been given, ununless the transfer is merely a cloak for a usurious loan or violative of a usury statute covering discounts as well -as loans. And the fact that the holder of an instrument is required to indorse or otherwise guarantee it, so that he becomes conditionally liable to pay the purchaser an amount greater than the legal interest and the sum he received, is held by many authorities, although some decisions have taken other positions, not to constitute the transaction a loan, but rather a valid sale of a chattel with a warranty of soundness. ’ ’

It is significant that in this case Patsy Auto Sales, Inc., guaranteed this note only to the extent of $500, There was no obligation on its part beyond that. This whole subject was exhaustively treated in a recent quo warranto proceeding in which the attorney general sought to oust the Contract Purchase Corporation from doing business in Michigan. The case is Attorney General v. Contract Purchase Corporation, 327 Mich., 636, 42 N. W. (2d), 768. The nature of the proceeding made it necessary to consider the entire course of business of defendant. From an examination of the opinion, it will be found that the defendant engaged in all the practices either proven or implied against the defendants in the instant case. The court held that the defendant was not engaged in loaning money, and, therefore, had not violated the statute against usury. The ninth paragraph of the syllabus shows the similarity of the transactions to that under review in the case at bar.

We quote that paragraph:

‘ ‘ The mere fact that a corporation purchased a note at a discount beyond the legal rate of interest does not constitute the transaction a usurious one and solicitation of such business from automobile dealers and furnishing schedules for that purpose and blank forms would not affect a transaction involving the bona fide sale of an automobile, valid when made.”

In that case, as in the case at bar, the discount far exceeded the allowable rate of interest on a loan of this amount, although the Small Loan Act authorizes a rate in excess of this discount on loans of $300 or less. As to this, the court in that case said at page 643: “However, in the absence of a statute limiting the rate of discount on notes and commercial paper, a bona fide sale of such paper is not deemed usurious no matter how high the discount nor how low the price paid.”

This subject of sale of choses in action, as it relates to usury, is elaborately discussed in'an annotalion in 165 A. L. R., 621, to the case of Milana v. Credit Discount Co., 27 Cal. (2d), 335, 163 P. (2d), 869, thus making extended discussion unnecessary.

In the instant case, we are of the opinion that the evidence discloses an actual sale of an automobile for a cash payment of $2,000 and for 24 deferred payments of $235.60, payable monthly, making a total deferred payment of $5,654.40, upon which $3,999.40 had been paid at the time of trial in the Common Pleas Court.

A judgment by this court declaring the rights in conformity to this conclusion is awarded.

Judgment accordingly.

Hildebrant, P. J., Matthews and Ross, JJ., concur.


author:
Conn, J.
      Per Curiam.

text:
    The State of Ohio, Appellee, v. Greeno, Appellant.
    (No. 754
    Decided November 20, 1950.)

      Mr. Robert D. Schuek,■ prosecuting attorney, and Mr. Floyd A. Cotter, for appellee.

      Mr. William S. Snook and Mr. Garver Oxley, for appellant.
   Conn, J.

The defendant was indicted for issuing or causing to be issued four checks with intent to defraud. Two of the cheeks were issued on or about April 8, 1949, and the other two on or about April 12, 1949. Four separate indictments were returned, each containing three counts. The first count of each indictment charged the defendant as an aider and abettor in issuing the four checks. The second counts charged the defendant as principal in issuing the four cheeks, each of such counts being predicated on Sections 710-176 and 12380, General Code. In the third counts, the defendant was charged with obtaining possession of certain automobiles of the value, respectively, of the checks described in the first and second counts, by false tokens and writings, that is to say, larceny by trick, as defined by Section 12447-1, General Code.

- The jury returned a verdict of guilty on each count of the four indictments, and the court sentenced th® defendant to the Ohio penitentiary for an indeterminate period of not less than one year or more than three years on the first counts and not less than one year or more than seven years on the third counts, the sentences to run concurrently. It appears from the journal entry that the defendant was not sentenced on the second counts “because of having heretofore been sentenced as an accessory on the first counts of each of said four indictments. ’ ’

From the judgment of the Common Pleas Court the defendant appeals on questions of law.

Following'the return of the indictments, defendant filed a motion to quash and a plea in abatement, each of which was overruled. Before the introduction of any evidence, the defendant moved for an order requiring the state to elect on which charge it would proceed, and that motion was also overruled.

At the conclusion of the state’s case, the defendant filed a motion for a directed verdict, which was renewed at the close of all the evidence, and following the return of the verdict the defendant duly filed his motion for new trial. Bach of these motions was overruled and the action of the trial court in each instance is assigned as error.

Defendant also assigns as error the refusal of the trial court to strike all the evidence from the record, the overruling of defendant’s motion to take from the jury the counts as to larceny by trick and the second count in each indictment, and the overruling of defendant’s motion for a directed verdict of not guilty.

Other errors are assigned, including errors in the ruling of the trial court on the admission and rejection of testimony and that the verdict of the jury and sentence of the court are contrary to law.

We have examined all the assignments of error and in our opinion they are not well taken and should not be sustained except as hereinafter indicated.

We shall comment briefly on the errors relied on mainly in brief and oral argument, to wit, errors relating to the rulings of the trial court on the admission and exclusion of evidence, which defendant claims were prejudicial; error in overruling defendant’s motion for an order requiring the state to elect on which charge it would proceed; and that the evidence was insufficient to sustain the burden of proving the guilt of the defendant beyond a reasonable doubt.

After a careful examination of the record, it is our conclusion that the defendant was not prejudiced by ' the rulings of the trial court on the admission of evidence offered by the state or in the exclusion of evidence offered by defendant, and that the verdict of guilty is not manifestly against the weight of the evidence.

As already pointed out, the trial court overruled defendant’s motion to require the state to elect on which charge it would proceed. Defendant’s motion rests on the claim that the three counts in each of the four indictments, respectively, are founded on a single transaction, and that the charges laid in the several indictments amount to double jeopardy and violate rights protected by the Constitution. We have given consideration to this matter of election and are of the opinion that the motion to elect was properly overruled.

Prior to the adoption of the Code of Criminal Procedure in 1929, the issue of election between counts in an indictment had been considered by the courts in a number of cases and the rule was generally recognized that the state could not be required to elect between counts in an indictment where the charges related to the same transaction. 21 Ohio Jurisprudence, 801, Section 103; Bailey v. State, 4 Ohio St., 440; State v. Bailey, 50 Ohio St., 636, 36 N. E., 233; State v. Cheatwood, 84 Ohio App., 125, 82 N. E. (2d), 770; 27 American Jurisprudence, 688, Section 130; Braverman v. United States, 317 U. S., 49, 87 L. Ed., 23, 63 S. Ct., 99; In re Snow, 120 U. S., 274, 30 L. Ed., 658, 7 S. Ct., 556.

The present statute (Section 13437-3, General Code) affirms the general rule and expressly provides that where two or more offenses are charged in one indictment “the prosecution is not required to elect between the different offenses or counts set forth in the indictment or information.”

It follows that defendant’s motion to elect was properly overruled.

The evidence discloses that the defendant participated in the purchase of four automobiles, and that the purchase price of each was paid by a check of The West Park Auto Sales, signed by Ann Greeno and drawn on The First National Bank of Findlay, Ohio. The evidence discloses further that at the time each of the checks was issued and presented there were insufficient funds in the bank. The offenses charged are grounded on these four transactions and pleaded in twelve separate counts.

The trial court, in its charge, gave the jury a detailed outline of the respective charges in the three counts of each indictment, calling attention to the fact that the issuance of the check and the acquisition of the automobile in consideration of the amount for which the check was drawn were embraced in one and the same transaction, which transaction provided the basis for the separate charges in the three counts of each indictment.

Four forms of verdicts were prepared and submitted to the jury for its use and each form contemplated a finding of “guilty” or “not guilty” on each oí the three counts of the four indictments. The defendant was found guilty on each of the twelve counts.

If the defendant was guilty of aiding and abetting in the issuance of one or more of the cheeks, he could not be guilty as principal in respect to the same transactions. And if defendant participated in the issuance of the checks for the purpose of using the same as a false'“pretense, token or writing” in obtaining possession of the automobiles, as charged in the third counts of the indictments, the same act or transaction would not be punishable as charged in the first and second counts of the indictments.

In Griffith v. State, 93 Ohio St., 294, 112 N. E., 1017, the indictment contained three counts, the first count charging the accused with forgery, the second with uttering a forged instrument, and the third with obtaining money by false pretenses. The jury returned verdicts of not guilty on the first and second counts and guilty on the third count.

In the per curiam opinion, at page 299, the court said:

“No evidence whatever was offered by the state of any other false pretenses except that the check was forged and that the defendant, either having forged the same or knowing it to be forged, presented it to the bank and obtained the money upon it. It follows, therefore, that if this defendant was not guilty of forging this check and not guilty of issuing a forged check, knowing it to be forged, he could not be guilty of obtaining money by false pretenses when no other false pretenses were relied upon or sought to be proven by the state.”

In Devere v. State, 5 C. C., 509, 3 C. D., 249, the in•dictment contained two counts, one charging the defendant with forgery of a promissory note and the other with uttering a forged instrument. It appeared that both counts related to the same note. A verdict of guilty was retürned on each count and the dei end-ant was sentenced to the penitentiary on each count. This was held to be erroneous. Compare Weaver v. State, 74 Ohio St., 53, 77 N. E., 273; Woodford v. State, 1 Ohio St., 427; Dalrymple v. State, 5 C. C. (N S.), 185, 16 C. D., 562.

Section 13437-3, General Code (part of the Criminal Code), recognizes the rule established by the eases already cited, as it provides that “an indictment or information may charge two or more different offenses connected together in their commission,” and the prosecution is not required to elect. Although the ■statute gives the court some discretion, we do not find •any provision whereby an accused can be convicted and sentenced for two or more offenses growing out •of the same subject matter or the same transaction, when this statute is read and applied as an entirety.

It is our opinion that if the statute so provided or were so construed in the instant case, it would contravene certain provisions of Section 10, Article I of the Constitution.

In other words, if the offenses charged against ao•cused were set forth in three separate indictments instead of three counts in one indictment and the accused could have been convicted of the crime charged in one indictment on the same competent and material •evidence upon which he could have been convicted of the charges in either of the other two indictments, it would be quite clear that upon the first conviction the ¡accused would he in jeopardy in relation to the two ¡remaining indictments.

It seems to follow that the right of nonelection between two or more counts can not be extended so as to have the effect of diluting defendant’s constitutional rights.

In Griffith v. State, supra, on page 297, the court said:

“A separate count charging each crime may be contained in one indictment, but upon the trial of such indictment the court should instruct the jury that the accused cannot be found guilty of both crimes in reference to the same money or property. ’ ’

In view of the foregoing observations, the jury should have been instructed that the defendant might be convicted on any one of the three counts in the indictments, but upon a finding of guilty on any one of such counts he could not be found guilty on the other two; and that upon a finding of guilty upon one of the three counts, a finding of not guilty should be returned upon the remaining two.

It is our conclusion that the Conviction of the defendant on each of the twelve counts of the four indictments and the subsequent sentences imposed by the trial court were erroneous and prejudicial to the defendant.

The judgment is reversed and cause remanded for a new trial.

Judgment reversed.

Carpenter and Fess, JJ., concur.

(Decided January 29, 1951.)

On Application for rehearing.

Per Curiam.

Upon rehearing in this case, the court adheres to the conclusion heretofore reached. However, as there is no error apparent on the record prejudicial to the defendant other than the conviction of defendant on each of the several counts of the four indictments and the subsequent sentences imposed by the trial court, it is our conclusion that the conviction of defendant should be affirmed as to the first count of each indictment and reversed as to the second and third counts therein and that the defendant be discharged therefrom; and that this cause be remanded to the Common Pleas Court for execution of sentence.

Judgment accordingly.

Conn, Carpenter, and Fess, JJ., concur.


author: McClintocic, P. J.

text:
    Benson, Appellant, v. Lamb, Admr., Appellee.
    (No. 265
    Decided May 23, 1951.)

      Mr. E. Raymond Morehart, for appellant.

      Mr. Judson C. Kistler, for appellee.
   McClintocic, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Fairfield County. We shall refer to the parties in this opinion as they were designated in the court below.

Plaintiff commenced an action in the Court of Common Pleas against the defendant, Robert Lamb, administrator of the estate of Clarence N. Benson, deceased, claiming that he, plaintiff, was employed by the defendant’s decedent from October 9, 1945, to April 13, 1948, and listing an account showing the dates on which plaintiff worked for decedent and the nature of the work. Such account, marked exhibit Á, is attached to the petition, incorporated therein, and made a part thereof. Plaintiff claims that he worked 2,181 hours; that the reasonable value of his services was 75 cents per hour, making a total of $1,635.75; that he presented a claim to the administrator for such amount and requested the allowance thereof; that the administrator disallowed such claim; that payment has never been made for this work and labor; and that there is due him from the estate of Clarence’ N. Benson, deceased, the sum of $1,635.75, for which amount he prays judgment against defendant.

To the petition the defendant filed an answer admitting that he was appointed administrator of the estate of Clarence N. Benson, deceased, that plaintiff presented a claim to him, and that the claim was disallowed, and denying each and every other allegation in the petition.

Answering further defendant specifically denies that the itemized statement of account for work and labor, as pleaded by plaintiff, is a true account, and that the items contained therein are proper items of an account. Defendant alleges that the plaintiff has received payment in full for any and all work and labor that plaintiff may have done and performed for decedent.

No reply was filed by plaintiff.

On the date set for trial, defendant filed a motion for judgment on the pleadings, which was sustained by the trial court and judgment was entered in favor of defendant.

Plaintiff appealed to this court on questions of law, and for his assignment of error claims that the court below erred in awarding judgment to the defendant on the pleadings, and that the court should have overruled the motion and allowed the case to be tried on its merits.

It is claimed by defendant that new matter was set up in the answer, to wit, payment in full of plaintiff’s claim, and that, since no reply was filed denying such payment, the defendant was entitled to judgment on the pleadings, under Section 11601, General Code.

Section 11329, General Code, provides that every material allegation of new matter in an answer not controverted by the reply shall be taken as true. On this question we cite Bates’ Pleading, Practice, Parties & Forms, 279, Section 317:

“Denying anticipatory allegations. Where the petition is compelled to anticipate defensive matter — the most common case being where an averment of nonpayment is necessary — this does not dispense with an affirmative answer, and a general denial will not put such averment in issue. Where the petition gratuitously anticipates defensive matter — the most common case being an averment of due care or freedom from contributory negligence on the part of plaintiff —such matter need not be denied because not material to plaintiff’s case. But a general denial does not deny such anticipatory matter, and, to make the defense, special pleading thereof is not dispensed with by such general denial. That such anticipatory matter in the petition being especially set up as a defense in the answer does not dispense with a reply thereon.”

In Fewster v. Goddard, 25 Ohio St., 276, the syllabus reads in part as follows:

“1. In an action upon a promissory note, alleging that there is a specified amount due thereon, from the defendant to the plaintiff, an answer by the defendant, alleging payment of the note in full, is an answer setting up new matter, and must be taken as true in the absence of any reply thereto.”

In Lord v. Graveson, 4 C. C. (N. S.), 268, 16 C. D., 371, the first paragraph of the syllabus is:

“1. While it is necessary to aver nonpayment of a debt in order to show a breach of the contract, proof of nonpayment not being required, proof of payment, is not permissible unless specially pleaded.”

And in the above case, on page 269, it is said:

“The argument is that the averment of a certain amount due upon an account, and that there are no credits thereon, includes the averment that the account is unpaid, and that, therefore, under' a general denial, evidence of payment should be received.

“In the case of Lent et al., v. N. Y. & M. T. Company, 130 N. Y., the syllabus contains this proposition:

. “ ‘In an action upon an alleged indebtedness an allegation in the complaint of nonpayment is essential. This is not affected by the rule that payment must be pleaded as an affirmative defense, and can not be proved under the general issue, but the rule simply modifies the general rule of pleading so that the averment of payment is not put in issue by a general denial. ’

“In the case of Malone v. Rufino [129 Cal., 514], 62 Pacific, 93, the Supreme Court of California held:

“ ‘Where a plaintiff has proved the existence of the debt sued on the onus is on defendant to prove thal it has been paid.’ ”

1 Ohio Jurisprudence, 190, Section 14, reads as follows:

"Necessity of Pleading Payment. Payment must be specially pleaded by the defendant. The plea of payment is not a denial of the plaintiff’s claim but constitutes new matter to which a reply is necessary or.it will be.regarded as admitted.”

There can be no question that since Ohio’s departure from common-law pleading and adoption of its procedural code a plea of payment is an affirmative defense which is not triable under a general deniai but must be specifically pleaded to be made available, and that, while it is necessary to aver nonpayment of the debt in order to show a breach of the contract, proof of the same is not required, and in order to prove payment it must be specially pleaded.

In conclusion and for the reasons herein stated, we are of the opinion that the court below did not commit error in awarding judgment to the defendant on the pleadings, and for that reason the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Putnam and Montgomery, JJ., concur.


text:
    Schulte et al., Appellants, v. Flick, Aud., et al., Appellees.

      (No. 7353
    Decided January 22, 1951.)

      Mr. Byram E. Moore, for appellants.

      Mr. Henry M'. Bruestle, city solicitor, and Mr. Wallace M. Power, for appellees.
   Per Curiam.

This is an appeal on questions of law in an action instituted under favor of Section 3553, General Code, to enjoin the annexation of certain contiguous territory to the city of Cincinnati. The trial court refused the injunction.

By Section 3548, General Code, it is required that the petition for annexation must be signed by a majority of the adult freeholders residing in the territory sought to be annexed.

In this case, it is not disputed that, at the time the amended petition was filed, the signers thereto constituted such majority.

Subsequent to the filing of the amended petition and prior to the hearing before the county commissioners, those opposed to the annexation and constituting a minority of the adult freeholders shifted their titles to the real estate so that at the time of the hearing they had become the majority of the adult resident freeholders.

The qualification of the petitioners has not changed.

The sole substantial question presented by this appeal is whether the shifting of the titles of those opposed to the annexation, during the pendency of the proceeding, required a denial of the petition by the county commissioners. >

By Section 3549, General Code, it is provided that the duties of the county commissioners, so far as applicable, shall be the same as are required in the case of an application to be incorporated as a village.

Turning then to Section' 3522, General Code, which defines the duties of county commissioners on the hearing of an application to incorporate as a village, we find that, so far as the petitioners are concerned, the only finding required for incorporation is “that the persons whose names are subscribed to the petition are electors residing in the territory.”

Under this provision, the most that is required on a petition for annexation is a finding that the petition was signed by the requisite number, that is, a majority. The majority at the time was subscribed as required to initiate the proceeding. Any subsequent change would be important only in the determination of the county commissioners as to whether it would be “right that the prayer of the petition be granted.”

For these reasons, the judgment is affirmed.

Judgment affirmed.

Ross, P. J., Hildebrant and Matthews, JJ., .concur.


text:
    Homer, Appellant, v. Wullenweber, Jr., et al., Appellees.
    (No. 7440
    Decided June 11, 1951.)

      Mr. Charles P. Taft, for appellant.

      Messrs. Brumleve, DeCamp & Wood and Mr. James B. Swing, for appellees.
   Matthews, J.

The defendants, Nicholas Wullenweber, Jr., Henry Wullenweber, and Christina Wullenweber Neihard, demurred to the plaintiff’s second amended petition on two grounds, first, that it did not state facts sufficient to constitute a cause of action and, second, that the cause of action, if it existed, was barred by the statute of limitations. The court sustained this demurrer and, the plaintiff not. desiring to plead further, judgment was entered for the defendants. It is from that judgment that this appeal is taken.

It is apparent, therefore, that the sole question on this appeal is whether the second amended petition stated a cause of action that was enforceable at .the time this action was instituted. In seeking an answer to that question, the second amended petition must bo “liberally construed, with a view to substantial justice between the parties.” Section 11345, General Code. Of course, for the purposes of the demurrer, the allegations of the second amended petition are admitted to be true, leaving only their legal sufficiency for determination.

In her second amended petition, the plaintiff alleged that she and the defendants, Nicholas Wullenweber, Jr., Henry Wullenweber, and Christina Wullenweber Neihard, are the only children and heirs at law of Nicholas Wullenweber, who died on December 19, 1938; that two days before his death he conveyed certain described real estate to the defendant Nicholas Wullenweber, Jr., who accepted the conveyance “upon the sole consideration of love and affection and of the obligation to hold the same in trust for the use and benefit of himself and his brother and sisters, the plaintiff and defendants equally”; and that about February 1, 1939, the plaintiff discovered “that the property had been thus conveyed * * * and demanded of Nicholas Wullenweber, Jr., that he convey her one-quarter interest to her. Said Nicholas Wullenweber, Jr., agreed to do so, but later after a deed was prepared from him to plaintiff for a one-quarter interest in such property, failed and neglected to execute it on the ground that the situation of his sister Christina and the character of his brother, Henry, required that the trust should continue. At that time and thereafter, Nicholas Wullenweber, Jr., continued to assert that he held such property in trust for himself, the plaintiff and Henry and Christina Wullenweber, and at no time made any claim contrary to such equitable interest of the plaintiff.”

These allegations were followed by averments that on the 9th day of January 1946 Nicholas Wullenweber, without plaintiff’s knowledge or consent, sold a part of the premises to the defendant The Contractors Construction Corporation for the sum of $13,000, and a few weeks thereafter tendered to her her proportionate share of the down payment, and as subsequent payments were made he tendered to her her share which^sho did not accept, and on or about May 1950, he withdrew such tenders.

These allegations were followed by averments of the sale of another portion of the premises to the same purchaser for $22,000, and that upon plaintiff discovering such sale and presumably upon plaintiff apprising him of that fact, the defendant Nicholas Wullenweber, Jr., tendered to her her proportionate share of the down payment and later tendered her her share of a subsequent payment, neither of which she accepted, and that during the month of May of 1950 Nicholas Wullenweber, Jr., withdrew such tenders.

The plaintiff alleged also that there were valuable sand and gravel deposits on the land from which Nicholas Wullenweber had sold a large quantity; that the purchaser of the two parcels knew at the time it purchased them that Nicholas Wullenweber, Jr., was a trustee; and that the property was worth more than twice what it had paid for it.

The plaintiff prayed that Nicholas Wullenweber, Jr., be declared a trustee of said real estate, for.an accounting, that the deeds to The Contractors Construction Corporation be- set aside, and that Nicholas Wulienweber be directed to convey such premises to the beneficiaries, and for such other equitable relief as might be just and proper.

While' the second amended petition was silent as to whether any writing evidenced the obligation of Nicholas Wullenweber, Jr., to hold the property in trust, appellant’s counsel, in his brief, states that the obligation is based on an oral agreement. As this agreement or declaration was contemporaneous with the conveyance of the legal title, oral evidence is competent to support it.

In Russell v. Bruer, 64 Ohio St., 1, 59 N. E., 740, it was held, as stated in the second paragraph of the syllabus :

‘ ‘ A trust engrafted on an absolute deed may be shown by parol evidence; but the declaration of such trust must be contemporaneous with the deed, and the evidence beyond a reasonable doubt as to the existence of the trust, and must be clear, certain, and conclusive as to its terms and conditions.”

If this oral evidence is of sufficient probative force, it established an express or, as it sometimes is called, a direct trust, which “are those trusts intentionally created by the direct and positive act of the settlor, by some writing, deed, or will, or oral declaration; they are distinguishable from trusts by operation of law,'' resulting and constructive, in that the latter are respectively founded upon an intention of the parties to a transaction implied in law, or upon fraud or wrong irrespective of the intention of the parties concerned.” 54 American Jurisprudence, 33, 34, Section 15.

The plaintiff, in the second amended petition, alleged that the trust is for the use and benefit of the plaintiff and her brothers and sister. There was no allegation of any stipulation imposing any additional duty upon the trustee. However, in the absence of specific stipulations in the trust, equity imposes such obligations. Every trustee owes certain duties to the beneficiaries of the trust. He agrees to administer the trust; to be loyal to the cestui que trust; to not delegate to others the doing of acts which he 'can reasonably be expected to perform personally; to keep and render clear and accurate accounts with respect to the administration of the trust; to give the beneficiary upon request, at reasonable times, complete information respecting the trust property, and permit inspection'; to use reasonable care to preserve the.trust property; to keep trust property separate and not commingle it with his own; to make trust property productive; to pay in'come to the cestui que trust at reasonable intervals ; and, finally, to account and pay over the corpus on termination of the trust. Of course, equity imposes other duties depending on the.nature of the .trust property, but the foregoing are some of the duties imposed upon all trustees in the absence of any express provision. 1 Restatment of the Law of Trusts, 430, Section 169 et seq.; 1 Scott on Trusts, 39, Section 4 et seq.

It appears from the allegations of the second amended petition that Nicholas Wullenweber, Jr., was placed in possession and control of the trust property and was, until his repudiation of the trust in 1950, en-' gaged in administering the trust. His duties were more than those of the holder of the dry legal title who has no duty.other than to convey the legal title to the beneficiary upon demand. He had active duties to perform. The trust was active. 1 Restatement of the Law of Trusts, 211, Section 69, Comment A. Such being the ease, the trustee was charged with all the duties of a fiduciary in the administration of the trust.

We fail to see any vagueness in the purpose of a trust created for the “use and benefit” of another, particularly when we have in mind, as just noted, that the duties of the trustee in administering such a trust are imposed by equity. No particular form of words or conduct is required. There is no indispensable ritual necessary to the formation of a trust. 1 Scott on Trusts, 147, Section 24.

But it is urged that this trust has no prescribed duration, which is true. However, we have been cited to no case and have found none holding that such a provision is essential. We know of nothing that would prevent the owner of property from creating a trust for the use and benefit of another, with the right of either the trustee or the cestui que trust to terminate the trust at will.

We are of the opinion that the second amended petition stated a cause of action.

It is also urged, and perhaps more earnestly, that whatever cause of action the plaintiff has alleged is barred by the statute of limitations. On this subject, the whole controversy resolves around the effect, if any, of Section 11236, General Code, upon the application of the other provisions of Chapter 2, Division I of Title IV, Part Third of the General Code, in other words, the provisions of the Code of Civil Procedure, limiting the time in which actions should be instituted.

Section 11236, General Code provides:

“The provisions of this chapter, respecting lapse of time as a bar. to suit, shall not apply in the case of a continuing and subsisting trust, nor to an action by a vendee of real property, in possession thereof, to obtain a conveyance of it. ’ ’

The defendants contend that the cause of action alleged was not one to enforce a continuing and subsisting trust within the meaning of that phrase as used in Section 11236, General Code, as construed by the courts; and that in any event the cause of action arose in February 1939, when the plaintiff demanded a conveyance to her of her share of the trust property and the defendant Nicholas Wullenweber, Jr., failed to comply therewith. As to this latter contention,, we are of the opinion that the allegations, construed reasonably in favor of the plaintiff, did not show a persistent demand and an unqualified refusal. Rather, they showed that the plaintiff made a demand which she, by implication, withdrew after Nicholas Wullenweber, Jr., acknowledged the trust and explained the circumstances under which he was holding the property. There was no repudiation of the trust at that time. He continued to hold the property as theretofore, recognizing the trust by tendering to plaintiff a proportionate share of payments made on parcels sold by him and never expressly repudiating the trust, although, in May 1950, he withdrew the tenders theretofore made.

The real issue between these parties is whether the relationship between Nicholas Wullenweber, Jr., and his sisters and brother was of such a character that the statute of limitations started to run against whatever cause of action arose out of it at once, or upon discovery of their rights, or whether the relationship gave rise to no cause of action so long as Nicholas Wullenweber, Jr., carried out the purpose of his father in conveying the property to him. In other words, was the relationship that of trustee and cestui que trust of a continuing and subsisting trust within the meaning of Section 11236, General Code? If it was, then, so far as the allegations showed, Nicholas Wullenweber, Jr., continued to administer the property in accordanee with the purpose of his father, at least until May of 1950, and admittedly the action was filed within' the statutory time for the accrual of the cause of action.

Counsel have cited and commented on many cases involving the question of the application of Section 11236, General Code, and also cases decided prior to the extension of the statute of limitations to most equitable actions, in which equity applied the statute by analogy to most equitable causes of action, but refused to apply it to actions for the enforcement of continuing and subsisting trusts.'

Section 11236, General Code, is a codification of the equitable rule as it existed at the time.

We do not deem it necessary to discuss those cases in detail in order to disclose the basis of our conclusion that the cause of action alleged is not barred. Close analysis of the trusts involved in those cases is sufficient to reconcile any apparent conflict as to most of them. Most of them involved trusts created in invitum. They were either constructive ■ or resulting trusts created by equity as a remedial device to effectuate justice and to redress a wrong, recognized and enforceable from the instant of the creation of the relation by law. Some others involved statutory trusts recognized and enforceable at law.

No such trust is described in the second amended petition. The trust described is an express, active, technical trust. It was intentionally established. The father conveyed the property to his son Nicholas for the purpose of creating a trust, and the son accepted the title for the purpose of holding and administering it as a trust in accordance with his father’s purpose. Such a trust was formerly created and recognized solely in the court of chancery.

On the subject of the practice of courts of equity of applying the statute of limitations by analogy to equitable actions and the exceptions to that practice, prior to extension of that statute to equitable actions - and the codification of that practice in the Code of Civil Procedure, it is said in 16 Ohio Jurisprudence, 276, Section 122:

“One of these [exceptions] was in the enforcement of an express trust by suit between the cestui que trust and the trustee. Such suits were, in general, not subject to any bar arising from mere lapse of time, nor, so long as the existence of the trust was acknowledged, was there any possibility of invoking the doctrine of laches against them. * * * The single principle underlying these qualifications of or exceptions to the rule that lapse of time did not bar the enforcement of a technical trust was that, where the trust itself had been terminated, the cause of action was no longer one for the enforcement of that trust. The trustee’s repudiation was treated as equivalent to any other termination of the trust, and as giving rise to an immediate and distinct obligation to convey the trust property, or account for it to, or for the benefit of, the,cestui. However, in order to have this effect, the conduct of the trustee must have amounted to an open repudiation; a mere technical breach, as by taking title absolutely in the trustee’s name, without other circumstances indicating a position adverse to the trust, would not destroy the continuity of the latter. * * *

“The present statutes of limitations are substantially declaratory of these principles. * * * Thus, only those fiduciary obligations which are direct in character, of exclusively equitable cognizance, and which arise between the trustee and the beneficiary, are within the saving clause; these are not barred by lapse of time, however great, until the beneficiary has notice of the trust, and of its repudiation.”

This rule that the statute of limitations does not apply to continuing and subsisting trusts is followed in most, if not all, jurisdictions. Indeed, it is grounded on fundamental principles. If time ran against a continuing and subsisting trust such fact would contain the virus of the trust’s destruction from the time of its creátion without any hostile act by either the trustee or beneficiary.

In 34 American Jurisprudence, 86, Section 107, it is stated:

“It is firmly established that so long as there has been no denial or repudiation of the trust, the possession of the trustee of an express and continuing trust is presumed to be that of the cestui que trust, and the statute of limitations does not run between them. To state the rule more accurately, the trusts against which the statute of limitations does not run are those technical and continuing trusts which are not cognizable at law, but fall within the proper, peculiar, and exclusive jurisdiction of courts of chancery, while trusts which are the ground of an action at law are subject to the operation of the statute. In consequence of these rules, as long as the duties of a trustee remain undischarged, he cannot avail himself of the statute of limitations to an action for the recovery of funds held by virtue of the trust, unless the trust is openly denied to the knowledge of the cestui que trust.”

At page 142 of the same volume, we find the statement :

“Where it is contended that the statute of limitations was set in motion by the repudiation of a trust, it is essential, in order that he may claim the benefit of the ‘statute, for the trustee to show a plain, strong and unequivocal renunciation.”

It is no answer to say that the beneficiary of a trust at will 'could terminate the trust by making an unequivocal demand. The persistent, unequivocal refusal of such a demand would be a renunciation of the trust and would start the statute running. Bui until there is such a renunciation the possession of the trustee is the possession of the cestui, and this is patently so when the trust res is real estate. Indeed, Section 11236, General Code, in addition to exempting continuing and subsisting trusts, also exempts the dry passive trust of the legal title of a vendor in favor of a vendee in possession. 1 American Jurisprudence, 835, Section 72, where it is stated:

“Until the trust is openly repudiated, the cestui que trust may rely upon the integrity and faithfulness of his trustee without forfeiting his rights. Indeed, the trustee’s possession of trust property is the possession of the cestui que trust, whether the trust be express or implied. That is, a trustee cannot set up a title adverse to his cestui que trust so long as the trust is acknowledged. It becomes adverse only from the time of known disavowal. And, of course, a trustee may disavow his trust. In case of such disavowal, however, there must be a positive and continued disclaimer of title, and an assertion of adverse right brought home to the party, before the statute of limitations operates.”

For these reasons, we are of the opinion that the court erred in sustaining the demurrer to the second amended petition.

The judgment is reversed and the cause remanded for further proceedings.

Judgment reversed.

Hildebrant, P. J., Matthews and Ross, JJ,, concur in. the syllabus, opinion, and judgment.


author: Doyle, J.

text:
    Chupek, Admr., Appellant, v. City of Akron, Appellee.
    (No. 4166
    Decided February 21, 1951.)

      Mr. James A. Dean and Mr. T. W. Kimber, for appellant.

      Mr. Roy E. Browne, director of law, Mr. Nathan Koplin, and Mr. Hollis P. Allan, for appellee.
   Doyle, J.

The city of Akron is the owner of a stadium with its enclosure, and it is used at times for athletic events, midget automobile racing, and other kinds of public entertainment. It is known as the “Rubber Bowl.”

In the year 1946, the stadium was leased by the city to one Don Zeiter for midget automobile racing purposes. The lease in part provided for a minimum cash rental for each event, or a percentage of the receipts from patrons, “after deduction of federal and state taxes, whichever sum is the greater.” Lt further provided “that the sound and lighting systems * * * that may be used by the lessee shall be operated by the city, and all expense of such operation shall be the expense of the city. Public address announcer to be supplied and paid for by lessee.” Provision was also made for the lessee to employ sufficient persons to care for the tickets, parking, and police prótection, and, if, in the opinion of the city, there was an insufficient number for an adequate staff, that the lessee would immediately provide extra assistants. The lessee also agreed that he would “make the necessary improvements for the track used in midget auto racing and that he * * * (would) maintain the same, and that he * * * (would) cause guard-rails to be placed as requested by the city of Akron at his expense, and that all guard-rails and other spectator protection items * * * (would) be properly maintained and reinforced at all times for the public safety and welfare.”

Under this lease, on the 24th of May, 1947(, the lessee went into possession of the premises and conducted midget auto races before many thousands of spectators, who paid an admission fee. Among the spectators who paid an admission fee was George V. Chupek, who was killed while watching a race as a result of the disengagement of a wheel from its axle of a racing car and the propulsion of the wheel over the guard fence and into the seating area of the structure, where it struck the deceased and broke his neck.

Suit was brought by the' administrator of the deceased against the city under the provisions of the wrongful death statute. In the petition, it was alleged that the city “owned, operated, supervised, and controlled a public park within the city limits of Akron * * “that on different occasions, and for different forms of entertainment to which the public generally would be invited to attend by the city, either with or without a definite fee charge, the city of Akron, through its duly authorized agents and servants, did furnish, supervise, direct, and advertise the form and character of the entertainment, as well as the seating and accommodations of its spectators.” The petition further averred that on May 24, 1947, “the city of Akron gave, or permitted to be given, a public exhibition of automobile contest races within said Rubber Boivl for an admission charge, and in which admission charge the city of Akron participated, and that at said time and place several midget automobile race cars, with operators thereof, participated * * V* Continuing, the petition charged: “that * * * the city of Akron, by and through its duly authorized agents and servants for such racing event, * * * wholly failed and neglected to provide, maintain and construct any barrier, guard rail, fence, screen, or other device for the protection of the spectators, and at said time and place it approved, permitted and encouraged said different racing contests and permitted and approved said racing cars to be operated at a high, dangerous and negligent rate of speed * # * and with a full knowledge that said racing contests, under the conditions then and there existing * * *, were highly dangerous and hazardous to the spectators, including the decedent, George Y. Chupek, and plaintiff further avers that said conduct and its participation in said racing event * * * by the city of Akron, was wrongful and negligent and constituted a nuisance, and that such conduct on its part directly and proximately resulted in producing the death of plaintiff’s decedent.”

Issues were joined by the answer of the city, and, upon trial, at the conclusion of the evidence of the plaintiff, on motion of the city, the court rendered judgment for the said defendant. Following the overruling of a motion for a new trial, appeal was perfected to this court on questions of law.

1. It is law of long standing that municipal corporations have a double function; first, a governmental function as the arm or agent of the state, and, second, the private, proprietary function. There is substantial unanimity upon the proposition that an incorporated city, when exercising its private or corporate powers, is liable to respond in damages for the negligence of its officers, agents and employees. On the other hand, negligence in performance is not imputable to a municipal corporation entrusted with public or governmental duties. 6 McQuillin on Municipal Corporations (Rev. 2 Ed.), Section 2792.

In this state, municipal corporations may be held liable for the maintenance of nuisances when they are performing governmental duties (Section 3714, General Code), as well as being held liable to respond in damages for negligence when exercising their proprietary powers. 28 Ohio Jurisprudence, Municipal Corporations, Section 601, and cases therein cited.

2. The “Rubber Bowl,” owned and controlled by the city of Akron, is devoted to no governmental purpose and is not employed in carrying on or maintaining any governmental function. The city acts only in a proprietary capacity in respect to ownership, control and operation. State, ex rel. White, v. City of Cleveland, 125 Ohio St., 230, 181 N. E., 24, 86 A. L. R., 1172.

3. “1. A municipality, in so far as it acts in a proprietary capacity, possesses the same rights and powers and is subject to the same restrictions and regulations as other like proprietors.” State, ex rel. White, v. City of Cleveland, supra.

And a municipal corporation which, while performing a proprietary function within its corporate powers, leases its property to an individual for a consideration, crealés the legal relation pf landlord and tenant, and the city is possessed of the right, immunities and liabilities of a landlord.

This is because when a city embarks upon business enterprises for its own profit, it places its name and its sovereign position on the same plane as that of any private corporation or individual in a similar transaction.

4. The judicial opinion in this state since (and perhaps before) the case of Burdick v. Cheadle, 26 Ohio St., 393 (1875), has been that liability in tort for injury or damage to an invitee of a lessee whose possession of the premises is complete, does' not attach to a lessor when a defect in the premises comes into existence during the continuance of the lease, or when a dangerous condition arises due solely to the use to which the leased premises are put by a lessee.

“Liability in tort is an incident to occupation or control * * *. By preponderant opinion, occupation and control are not reserved through an agreement that the landlord will repair * * *. The tenant and no one else may keep visitors away till the danger is abated, or adapt the warning to the need. * * * ‘The power of control necessary to raise the duty * * * implies something more than the right or liability to repair the premises. It implies the power and the right to admit people to the premises and to exclude people from them’ # * Cullings v. Goetz, 256 N. Y., 287, at p. 290, 176 N. E., 397.

See Berkowitz v. Winston, 128 Ohio St., 611, 193 N. E., 343, in which the opinion of Cardozo, C. J., in the New York case was cited with approval by Matthias, J.

In passing upon the claims of the appellant in the light of the record before us, we are of the opinion that the evidence does not show “a joint participation and duty upon each of the two parties for conducting race events at the Rubber Bowl.” A stipulated rental for leased premises, based upon a percentage of receipts from invitees of the lessee, does not indicate that the lessor and lessee are acting in concert or concurrently in- the production of an event which might create primary accountability of each for injury to a patron. Nor does the reservation by the lessor of a right to operate the “sound and lighting systems * * * that may be used by the lessee” constitute such a reservation of control of the premises by the lessor as to require it to respond in damages when it appears, as it does here, that the property reserved or its operation was in no way connected with the damage sustained. If, perchance, through the negligence of an agent of the city in its operation of the lighting and sound systems, a patron had been injured as a proximate result thereof, the city could be held in damages, but such is not the case before us.

As we view the record, the city of Akron had divested from itself the possession and control of the parts of the stadium and the enclosed field upon which the automobile races were conducted, to which the claims of negligent maintenance and operation, and nuisance, are directed; and that it was only because of the circumstances and conditions existing at the time, which were under the sole control and operation of the lessee, that the fatal accident occurred.

This state is committed to the rule of Burdick v. Cheadle, supra, that a landlord out of possession owes no legal duty in failing to make premises safe and secure as a place' of resort for customers of a tenant, even when knowing that the premises were intended to be used for specific purposes which might cause injury to the tenant’s patrons. As stated therein: “There is no implied engagement or promise, on the part of a lessor, that the leased premises are in a safe condition, or that they are fit for the use to which the lessee intends to put them. If they be unsafe or unfit, it is the duty of the tenant to make them safe, or to fit them for the intended use; and the landlord may reasonably expect that the tenant will do so.”

It is observed that, in Burdick v. Cheadle, above cited, the landlord himself agreed to put the rented premises “in a secure, safe, convenient and proper” condition, and to keep the premises “in good order,” and the court held (pp. 397-398) that “if the lessor engages with the lessee, to keep the premises in repair, a breach of the engagement gives a right of action only to the lessee. * * * for if they (the customers) had not entered the premises at the request of the tenant, or under his license, they would not have suffered injury.”

It will be remembered, in contrast to the facts in Burdick v. Cheadle, that in this case the tenant agreed with the city of Akron that he (the tenant) would provide the necessary safeguards and would properly maintain “spectator protective items” for the “public safety and welfare.” There was no agreement made by the city that it would erect or maintain safeguards.

It is our conclusion that, in respect to the assertion that the city is chargeable with negligence which proximately resulted in plaintiff’s decedent’s death, such assertion cannot be sustained. The city acted solely in a proprietary capacity; no joint participation in the staging of the exhibition is shown to exist; .the relation of landlord and tenant was created, and the city as landlord is entitled to such immunities as the law in this state gives to that legal status.

5. The appellant, in addition to claiming the liability of the city for negligence, urges that the city cannot, “under the facts in this cause escape responsibility by any * * * leasing of its public park * * * to Zeiter, by reason of Section 3714, General Code.”

This code provision is:

“Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance.” (Italics ours.)

The statute, in derogation of the common law, imposes liability upon a municipal corporation for tort while exercising a governmental function. It was not intended to apply to a municipality for tortious conduct while acting in a proprietary capacity. A municipality, under such circumstances, is held to the same liability for tort as an individual, whether it be for negligence or nuisance, regardless of said statute. The statute was not intended to and does not apply to a situation in which a nuisance was created by a tenant of a municipal corporation out of possession and control. If this construction were given, a greater liability would attach to a municipality than that imposed upon an individual or private corporation. See: Boone v. City of Akron, 69 Ohio App., 95, 43 N. E. (2d), 315.

We conclude, therefore, that Section 3714, General Code, does not create a liability of the city under the facts before us.

The judgment is affirmed.

Judgment affirmed.

Hunsicker, P. J., and Stevens, J., concur.


author: Hunsicker, J.

text:
    Bidinger, Appellant, v. Bidinger, Appellee.
    (No. 4027
    Decided May 31, 1950.)

      Mr. 1. 8. Ballard, for appellant.

      Mr. Carl M. Myers, for appellee.
   Hunsicker, J.

Alice M. Bidinger, appellant herein^ in December, 1930, was granted a divorce from Charles M. Bidinger, appellee herein, by the Common Pleas Court of Summit County, Ohio. The decree of divorce, with respect to the care and custody of the child of the parties, was as follows:

í i * * *

“Coming to the question of the custody, care and. control of the minor child and the amount to be paid for its support, and also the question of a settlement of the property rights of the parties hereto, and it appearing to the Court upon representation of the parties and counsel for said parties that a settlement has been made covering these matters, and upon examination of said settlement the Court finds the same to be fair and reasonable and therefore makes an order in accordance with said settlement which is as follows:

“It is ordered and adjudged by the Court that the care, custody and control of said minor child Phyllis June be confided to the mother Alice Margaret Biding-er and that the defendant Charles Michael Bidinger shall have the right of visiting his child once a week on alternating Saturdays and Sundays; that is, during the week that he sees the child on Sunday he shall see it on the following week on a Saturday between the hours of 2:00 o’clock and 6:00 o’clock p. m., on said days. The Court further orders that the defendant pay to the plaintiff as and for support of said minor child the sum of Five Dollars ($5.00) per week, the first payment being due on Saturday, November 29th, 1930, and payable on each Saturday thereafter until said child reaches the age of eighteen years or until further order of the Court.

The record in this case shows that in Juno, 1933, January, 1934, and January, 1935, Alice M. Bidinger sought to enforce the order of support by contempt proceedings. In June, 1933, the Common Pleas Court found Charles Bidinger $330 in arrears in his payments of support for the child. In May, 1935, Charles Bidinger filed a motion to change the custody from Alice Bidinger to himself, alleging: that such child was outside of Summit county without the permission of the court; that the child was not in the care of Alice Bidinger, and that he, Charles Bidinger, had a suitable home; and asking that the child reside with him.

The parties, as shown by the bill of exceptions before us, testified that they had á joint hearing of some nature on both the contempt proceedings filed January, 1935, and the motion for change of custody filed May, 1935. No journal entry showing the disposition of these proceedings was ever filed.

In March, 1948, Alice Bidinger filed a motion seeking a determination of the amount of unpaid support money and a judgment for the amount so found to have been unpaid on such support order, as set out in the decree of divorce filed December 9, 1930. The child, at the time of this motion, was nearly 18 years of age.

At the hearing on such motion for determination of and judgment for the arrears, Charles Bidinger sought and was granted leave by the trial court to make a so-called oral motion for modification of the support order, which motion was later reduced to writing and filed. This motion of Charles Bidinger was as follows:

“Now comes the defendant and moves the Court to modify the order of support heretofore entered in this case for the following reasons:

“1. The parties by agreement made in 1935 provided that the defendant waived his right to have the child in Akron where he would have the right of visitation and the plaintiff waived her right to past and future support.

“2. The child has for many years been self-supporting.

‘ ‘ 3. The plaintiff has had neither the custody nor control or furnished support for the child since the order was made granting her the custody of said child.

“Defendant asks that the order of modification be made retroactive so as to take effect as of the date the Court finds there was a change in the circumstances which existed at the time the order was made.”

At the hearing on the motion of March, 1948, filed by Alice Bidinger, and the oral motion of Charles Bidinger, which was later reduced to writing and filed, the facts disclose that: the child became 18 years of age on June 15, 1948; at all times since its birth, such child has lived with the mother of Alice Bidinger outside of Summit county, Ohio;- Alice Bidinger paid no stated or regular amount for the support of such child but did purchase for her some clothing and other things needed by the child; Charles Bidinger paid varying amounts each year for the child but loss than the order of support required; the child, while very young, assisted her grandmother in a small store, which the grandmother operated; the child is now employed part time; for a period before she became 18 years of age, she was earning a small sum each week working in the city of Ashland, Ohio, her present home; no request was made to Charles Bidinger by Alice Bidinger for support of the child between the hearing of 1935 and March, 1948; the grandmother of the child made no request of Charles Bidinger for payment for the care and support she furnished the child; Alice Bidinger did not remarry; Charles Bidinger remarried and has three children as issue of such marriage.

The trial court overruled the motion of Alice Bidinger for a finding of the amount due on such support order and for judgment therefor, and granted the motion of Charles Bidinger for modification of the original order of support and found as follows:

“And the Court now coming to consider the motion of the defendant for modification of the former order made herein with reference to the support of the minor child of the parties hereto, and plaintiff’s motion for a hearing on defendant’s said motion; and upon consideration thereof the Court overrules plaintiff’s motion for a hearing of defendant’s motion, and sustains defendant’s motion for modification of said former order.

“It is therefore ordered that the defendant be relieved of all obligations of the original decree.”

At the hearing on the motions, Charles Bidinger testified that, as a result of his motion for change of custody filed in May, 1935 (which motion, although not journalized, was heard in conjunction with the proceeding in contempt instituted by Alice Bidinger in January, 1935), he entered into an agreement with his former wife to the effect that, if he would not insist on the return ^f the child to Summit county, and, if he would permit the child to remain with the maternal grandmother, she, Alice Bidinger, would release him from all past due payments awarded to her, and would accept for future payments — that is, those due after such date (May, 1935) — such amounts as he could afford to pay toward the support of their child until the child became 18 years of age.

Alice Bidinger denied that any such agreement was made or that such a subject was discussed. It is to be noted, however, that no further efforts were made by Alice Bidinger to enforce the support order until after a lapse of 13 years, during which time Charles Bidinger paid only small amounts of money, through the clerk of courts of Summit county, to Alice Bidinger. No payments were made by the parties to the maternal grandmother.

The question determinative of this appeal is: May an agreement be entered into between a father and a mother, formerly husband and wife, after a decree of divorce and custody of their child has been awarded the wife, mother of the child, releasing the father from such order of support payable to the mother?

We do not have in the instant case a question of the power of the court to modify due and unpaid installments of an order of support of a minor child upon motion made by the person ordered to pay such support money, nor do we have the question of the effect of an agreement to release a father from liability for support where a court later decrees such support. Both of these questions were recently before the Supreme Court of Ohio in the case of McPherson v. McPherson, 153 Ohio St., 82, 90 N. E. (2d), 675, wherein, it was determined that the court has no such power, and that such an agreement, if made, becomes merged with the order for support, and the order of the court supersedes such agreement.

We do not understand, by the rule established in McPherson v. McPherson, supra, and in Tullis v. Tullis, 138 Ohio St., 187, 34 N. E. (2d), 212, that an order of support for a child, entered by the court as a result of an agreement of the same parties, may not be changed by mutual consent, so as to be effective between such parties. See, also, 6 A. L. R. (2d), 1302.

Alice Bidinger did not establish that she expended her own funds for the care of the child, for, as a matter of fact, she, by her own admission, paid nothing to the grandmother for support of the child, and purchased only some clothing and such other things as the child needed. 1 No value was sóught to be placed on these articles. For all that we are able to know from the record before us, the sums which Charles Bidinger paid may have been sufficient to cover their cost.

No claim is here made by the maternal grandmother to recover for the care by her of the child of the parties. She is not before the court, and we do not intend, by these statements, to discuss or determine the merits of any rights she might have in a separate and independent action against the father of the child, nor the merits of any defenses which the father might have to such an action.

Charles Bidinger could not escape, by any agreement he made with his former wife, the duty he owed to the state and general public to support his child; however, as between his former wife and himself, an agreement to pay so much as he could for such child’s support, and the fulfillment of that promise, presents a much different' situation. In the case of Bowen v. State, 56 Ohio St., 235, at p. 239, 46 N. E., 708, the court said:

“But the duty he (a father) owes the public of saving it from the expense of supporting his children, is personal and continuing, and cannot be affected by any agreement he may make with another. He must answer to the state for his omission of that duty, and look to the other contracting party for any breach of the contract.”

The persons sought to be bound by the claimed agreement are Charles Bidinger and Alice Bidinger. The child of the parties was not jeopardized; she was being supported, not by the one to whom the court gave custody, but by the grandmother. During the 13 years the claimed agreement was in effect, neither Alice Bidinger nor her mother sought to enforce the original order or seek any increase in the payments as made by Charles Bidinger.

If Alice Bidinger were to recover, a judgment in this action, the judgment would be hers and not the child’s. The child is now nearly twenty years of age, and her support was fully provided for by the grandmother and not her mother. There was no debtor-creditor relationship established herein whereby Alice Bidinger became a creditor of Charles Bidinger — she had no proprietary interest in the award except possibly to the amount she expended from her own funds for the child’s support, and for which she could claim reimbursement from the amount the father was required to pay. See Schnierle v. Schnierle, 33 Ohio Law Abs., 212, 33 N. E. (2d), 674.

In the instant case, we have a judgment for unpaid support entered in 1933, and a subsisting award which one party desires to surrender for promises by the other: first, not to press the motion to change custody or to return the child to the county where the divorce action was heard; second, not to remove the child from the maternal grandmother; third, to pay such amounts in the future as it is possible to pay for the care of this child. It may be that the latter promise will not support the requirement of consideration necessary to make the agreement effective, but certainly, an agreement to forego the other rights is sufficient consideration to support the agreement upon which the trial court based its judgment. Forbearance to pursue a legal right is a sufficient consideration to support an agreement.

The judgment in so far as it sought to relieve the father, Charles Bidinger, from “all obligations of the original decree,” is susceptible to a construction that he is relieved of all responsibility for the support of his child to all persons, including the grandmother, who for many years was the sole support of his child.

The said judgment is therefore modified by providing that, as between the parties to this action, Charles Bidinger is relieved (by reason of his agreement with his former wife) from paying to Alice Bidinger the support money ordered by the trial court in the original judgment for support of his child.

We have examined all other claimed errors, and find none prejudicial to the substantial rights of the appellant.

The judgment is modified, and, as modified, is affirmed.

Judgment accordingly.

Stevens, P. J., and Doyle, J., concur.