text:
    AS TO THE LIEN OF A MORTGAGE NOT SET UP IN PROCEEDINGS FOR. A JUDICIAL SALE.
    Circuit Court of Cuyahoga County.
    The Ohio Savings & Loan Company v. Ada Weber.

    Decided, February 18, 1907.

      Mortgage Lien — Grantee 0† Purchaser at Judicial Sale Bound by Agreement to Assume Mortgage.

    Where real estate is sold by an administrator under an order of the probate court in a proceeding to sell- lands to pay the debts of a decedent, and it is stated both in the administrator’s report of the sale made to the court and in his deed to the purchaser, that the purchaser takes the land subject to a mortgage which she assumes and agrees to pay, the grantee of such purchaser will take the property subject to such mortgage, even though the mortgagee did not set up its mortgage upon these particular premises in the action to sell them and there was no finding of the probate court of the amount due him.

      A.'W. Barber, for plaintiff.

      Solders & Solders, contra.
    Marvin, J.; Winch, J., and IIenry, J., concur.

      Judgment modified—see journal entry, Leist, Trustee, v. Ohio, Savings & Loan Co., 79 Ohio State, 472.

   The facts in this case are that on the 3d day of May, 1892, Thomas Franklin was the owner of certain real estate described in the petition in,this action; that the defendant, Ada Weber, was then the wife of said Thomas Franklin; that at the date last named this husband and wife executed and delivered to the plaintiff in this action a certain written obligation, whereby they undertook and agreed to pay to said plaintiff the sum of $880 of principal and $440 premium. These payments were to be made in one hundred and twenty monthly installments of $11 each. To secure the payment of this obligation the said Thomas and Ada Franklin executed and delivered to the plaintiff their mortgage deed upon the premises described in the petition; the money undertaken to be paid by this obligation, and the payment of which was secured by this mortgage, has not all been paid.

Subsequent to the execution of this obligation and mortgage the said Thomas Franklin died, leaving Ada, his widow, who has since inter-married with one Charles Weber, who is made a defendant in this action. After the death of the said Thomas Franklin one F. A. Sarstedt was appointed administrator of his estate and as such he filed in the probate court of this county a petition for the sale of the land described in the’petition herein, for the purpose of paying debts of the deceased. To that petition the plaintiff herein was made a party and this allegation in relation to it is made in the petition:

“The defendant, the Ohio Savings, Loan & Building Company have or claim to have some lien on or in said premises; plaintiff therefore prays that said defendant may be notified of the pend-ency hereof according to law, and the defendant lienholder be required to answer and set up its claim and liens, if any, on said premises. ”

„ In the schedule of debts attached to said petition to sell the real estate are these words: “Mortgage of $'850 due Ohio Savings & Loan Association at the time Thomas Franklin died.*’

No answer was filed by the savings and loan company to this petition, but an entry of appearance was made in these words:

“We, the undersigned parties defendant to the petition in this ease waive the issuing on service of summons and voluntarily enter our appearance as such defendants, and we do hereby consent to the sale of real estate described in said petition as therein prayed for. * * *
“Ohio Savings, Loan & Buii.ding Co.,
“Henry Grumbacher,
“Sec. and Treas,”

This petition was filed on the 5th day of May, 1896, and on the same day the court found the allegations of the petition to be true and ordered the premises to be sold.

Thereafter a sale was made by the administrator at private sale, to the defendant, Ada Franklin (now Weber), and on the 1st day of September, 1897, a return of such sale was. made to the court in these words :

“In obedience to the command of the within order of sale, I did on the 13th day of May, 1896, 'offer said property at private sale, and Ada Franklin having offered therefor the sum of $1,200, $600 being cash and assumes mortgage of $600 and the same being not less than the appraised value of said property, 1 sold the same to said Ada Franklin for that sum.
“Frank Sarstedt.”

This sale was confirmed by the probate court and the administrator was ordered in these words:

“And directs the administrator to execute and deliver to the purchaser a good and sufficient deed of said property.”.

Thereupon the administrator executed and delivered to Ada Franklin (now Weber) a deed to the premises which recites the proceedings in the probate court and proceeds in these words :

“Whereas the said Frank A. Sarstedt, as aforesaid sold said premises to Ada Franklin, for the sum of $1,200, $600 paid in cash, and mortgage for $600 assumed, and the said Ada Franklin having complied with the terms of said sale, * if * now, therefore, I, the said Frank A. Sarstedt, as aforesaid, in consideration of the premises, and by virtue of the powers in me vested by law and the orders of said court, do hereby give, grant, bargain, sell and convey unto said Ada Franklin, all the right, title and interest of said deceased and of the several defendants named in said petition in and to the real estate aforesaid. ’ ’

Subsequent to the giving of this deed the defendant, Ada Weber, mortgaged this property to the defendant, Otto I. Leisy, and thereafter suit was brought in the court of common pleas to foreclose this mortgage, in which proceeding the premises were sold, and purchased by said Otto I. Leisy. The plaintiff in this action was not made a party in said proceeding to foreclose the Leisy mortgage.

The plaintiff in the present action prays for a foreclosure of the mortgage given to it by Thomas and Ada Franklin. The defendant, Leisy, sets up the proceedings had upon the foreclosure of the mortgage given to him and prays that his title may be quieted as against the plaintiff. The claim of Leisy is that the plaintiff having failed to answer in the probate court in the proceedings to sell the real estate, and no finding having been made in such proceedings that it had a lien on this property by virtue of its mortgage, and the deed made in pursuance of the order of the court in that case, expressly conveying, not only all the interest of the deceased, Thomas Franklin, but also of the interest of the lienholders in the premises the mortgage here sought to be foreclosed is in law canceled and is now of no effect.

It will be noticed that in the petition to sell real estate filed by the administrator, it does not distinctly appear that the plaintiff here had a mortgage upon the premises sought to be sold, although it does appear that there was a mortgage debt owing by the decedent to the plaintiff in the action, but for all that appears in the petition that debt may have been secured upon some other real estate of the decedent and not upon the real estate sought in that action to be sold. If this petition to sell be considered to mean that the mortgage debt scheduled was a mortgage upon the property sought to be sold, then there was a finding to this extent that the court found the allegations of the petition to be true; but surely this was not a finding of any certain amount due to this plaintiff upon that mortgage. It can not be denied that the proceedings in the probate court were very carelessly conducted. The plaintiff should have answered in that action if it claimed a lien on these premises, and should not have contented itself with the statements in the schedule attached to the petition that the decedent owed a mortgage debt to it.

The probate court should have made a finding as to whether the plaintiff in this action had any interest in the property sought to be sold in the proceeding to sell real estate, but for some reason the proceeding went through without any such finding by the court.

. As a matter of fact the report made to the probate court of the sale, which states that the sale is made to Ada Franklin for the sum of $1,200, $600 cash, and assumes a mortgage for $600, meant, and was understood to mean, that the purchaser assumed the mortgage debt then owing to this plaintiff in the sum of $600, and that the sale so reported and meaning such assumption of this mortgage, was approved by the probate court. It ought not to have been, but it was; and the deed made to the purchaser showing that as a part of the purchase price a mortgage for $600 was assumed by the purchaser, meant that She assumed the payment of the mortgage sought in this action to be foreclosed, to the amount of $600.

Ada Franklin understood that she was assuming this mortgage debt; that is, that she not only assumed to pay the debt, but that she received the property with the mortgage still upon it to this amount.

This being so, she is estopped from denying the validity of this mortgage.

In argument of the case here attention is called to the distinction between the assumption on the part of a purchaser of real estate of a debt secured by mortgage, and the taking title subject to a mortgage, and there is clearly a distinction. In the one case the purchaser becomes bound to pay the entire amount of the debt thus secured; in the other, it is only the equity of redemption which is conveyed, and the creditor may subject the mortgaged property to the payment of his debt, but can have no further claim against the purchaser, but the assumption of the mortgage debt by the purchaser in no wise lessens the right of the creditor to subject the mortgaged premises to the payment of the debt. See Lawrence v. Fox, 20th N. Y., 268.

In the case of Riley v. Rice, 40 Ohio State, 441, it is held, that where a husband and wife to secure their joint note executed and delivered a defective mortgage on land, which was the general property of the wife, and afterwards sold and conveyed the same land, subject to the mortgage, supposing it to be perfect, the holder of the debt secured by the defective mortgage had a lien superior to that of the holder of a claim secured by a mortgage executed by the purchaser of the premises, whose deed excepted the mortgage which was in fact defective.

Tbe court says in reference to a deed given by tbe husband and wife, and after the execution of the defective mortgage, “the recitals are particular and style it a mortgage, and recognize it as an incumbrance and lawful claim on the premises for the full amount.”

And further on the court says, speaking of the grantee in the deed containing the exceptions:

“He surely understood the land was bound for it, and it presumably entered into the consideration of his purchase, * * * he took title subject to plaintiff’s claim and is estopped to deny the due execution of the mortgage. ’ ’

In the case of Scanlan v. Grimmer, 70 American State Reports, 326, on page 329, the court in its opinion uses this language :

“A vendee who accepts a conveyance of land subject to a mortgage thereon and containing a convenant whereby such vendee assumes and agrees to pay said mortgage, is estopped from asserting that the obligation secured thereby is usurious. The whole title of such vendee rests upon the conveyance, and the continued existence of the mortgage as an encumbrance forms a part of it. The conveyance is evidence of title, and when proven, as such evidence, the existing mortgage and the assumption thereof is also proven. A grantee can not be permitted to claim title both under and against the same deed; to insist upon its efficacy to confer a benefit and repudiate a burden with which it has qualified it; to affirm a part and reject a part.”

In Gibson v. Lyon et al, 115 U. S., 439, it is held:

‘ ‘ The sanction of the court to a conveyance under proceedings and judgment for foreclosure of a mortgage in the Orphans’ Court of Philadelphia being a judicial act, such a deed describing the estate as conveyed subject to- an outstanding mortgage, estops the grantee from denying the validity of the mortgage. ’ ’

In this last named ease one Sarah A. Jermon had title vested in her by conveyance by one Rice, and Rice’s title was acquired by a conveyance approved and confirmed by the Orphans’ Court of Philadelphia. Each of these conveyances contain a recital that it is made under and subject to the payment, of a mortgage. The court, at pages 446-447 says:

"It is true that the statute of Pennsylvania, by which the sale ordered by the Orphans’ Court was authorized, act of April 18, 1853, provides that ‘by every such public sale the premises sold shall be discharged from all liens;’ and it is also true that the sale prayed for in this instance was of the premises, ‘clear, and discharged of all liens in the hands of the purchaser,’ and that the sale to Rice, approved and confirmed by the court, was for the sum of $10,500, the full price and consideration of the purchase; yet it is equally true, as appears from the recitals in the deed to Rice, which was duly acknowledged before the Orphans’ Court, that of the consideration, as finally agreed upon between the parties, there was actually paid in cash only $5,500, the remainder being represented by the existing mortgage to the Reliance Mutual Insurance Company, under and subject to which the conveyance was made, approved and accepted.”

In the present case it does not appear that conveyance by mortgage to Leisy was made subject to the mortgage to the plaintiff here, but when Leisy took his mortgage he was put upon inquiry as to what title the mortgagor had in the premises, and had he made examination of such title, he would have found that the deed to Ada was subject to a mortgage to this plaintiff; that she assumed to pay the mortgage debt, as has already been said. The land was no less bound for the payment of that debt because Ada took a deed in which she assumed to pay it. Her liability was greater than it would have been had she taken a deed subject to the mortgage, but the right to subject the land to the payment of the debt was the same in each case, that is, whether she assumed to pay the debt, or simply took the land subject to the mortgage debt. So then Leisy, deriving whatever title he has from Ada, and having notice by the deed to her and the proceedings in the probate court that she held the land subject to this mortgage to the present plaintiff, his title was subject to that mortgage, and the plaintiff is entitled here to a decree of foreclosure, its lien being superior to any rights which Leisy has in the premises.


source: Caselaw Access Project

license: Public Domain

text:
    BREACH OF CONTRACT CHARGED AGAINST A MUNICIPALITY.
    Court of Appeals for Delaware County.
    City of Delaware v. The Metropolitan Construction Co.
    Decided, 1914.

      Municipal Corporations — Contractor Belayed in His Work on a Street Improvement — Jury Finds that the City Was Responsible for Obstructions to the Work.

    1. Whether or not a contractor was hindered, to his damage, in the completion of a' street improvement by the action of the city engineer in suspending the work at times and by obstruction of the street by the building of a bridge and failure to cause railway tracks to be removed, are questions for the jury under the evidence, and a finding by the jury in favor of the contractor upon such an issue will not be disturbed by a reviewing court where not manifestly against the weight of the evidence.
    2. It Is not error for a trial judge in giving proper instructions upon material issues with the application of the law thereto, to refer to the evidence pro and con and the claims of the contending parties with reference to the issues joined, if such reference is not made in an argumentative way. •

      Arthur J. White, City Solicitor, and Berne Jones, for plaintiff in error.

      Marriott & Freshwater and Overturf ■& Hough, contra.
    shields, J.; Voorhees, J., and Powell, J., concur.
   This was an action for damages growing out of an alleged breach of a contract entered into on the 10th day of August, 1905, between one J. F. Gantz and the city of Delaware, Ohio, the plaintiff in error, for the improvement of certain streets in said city. Afterwards the said Gantz, for a valuable consideration, assigned and transferred said contract, and all his interest in and rights thereunder, to the Metropolitan Construction Company, defendant in error.

In the court below several causes of action were originally set out in the plaintiff’s amended petition, all of which it appears have been determined and adjudicated except what is designated as the plaintiff’s amended second cause of action, which forms the subject of controversy here and which is now before this court.

It appears from said amended petition that said contract was for the improvement of Sandusky street from University avenue to the north line of the Free Public Library lot and Winter street from Sandusky street to the west line of Franklin street in said city,. by grading, under-draining, curbing and paving the same, for which the said contractor was to receive from said city certain prices named in said contract for the labor and material for the improvement of said streets as set forth in said amended petition.

It is averred in said amended second cause of action that the contract mentioned in the first. cause of action, in addition to the provisions therein recited, which are referred to and adopted, provided that the work should be commenced at such point as the civil engineer of said city might designate, and that not more than two adjoining squares in length should be torn up at one time; that said engineer might from time to time suspend the work at certain places if in his opinion the public needs required it, but that said engineer should not have the right to stop the work altogether for more than one week at a time, except when in the opinion of said engineer the weather was not suitable for doing the work he might cause the work to be suspended. That the said Gantz fully performed said contract on his part and completed said improvement about November 27, 1906, when the defendant, the city of Delaware, accepted said improvement; that during the performance of said contract said Gantz worked under the supervision and direction of the said defendant and complied with its various orders and requirements. It is further averred in said second amended second cause of action that for the purpose of enabling the said Gantz to carry out said contract he ordered' and purchased large amounts of material and hired a large number of skilled and other workmen, and transferred and shipped a large number of tools and suitable equipment for street paving work to said city and expended large sums of money in anticipation of the performance of said contract, and that he could easily with such 'provision made have executed and completed said improvements by December 1, 1905, under the terms of said contract, except for the negligent acts, unreasonable and wrongful orders and failures of the said defendant, in this, that the said defendant unreasonably, wrongfully and negligently hindered and delayed said contractor in the performance of his said contract by wrongfully permitting parties to occupy and use said streets to the hinderanee and delay of said contractor in the performance of his said contract; that said city through its engineer ordered suspension of work many times, in both 1905 and 1906, for longer periods than one week at a time for causes other than weather conditions, as provided in said contract; that said city failed to grant said contractor possession of said streets to be improved, two squares at a time or even one square at a time, as provided in said contract; that said city through its engineer many times during the working season of 1905 ordered the said contractor to begin work at a certain point on said streets, and by the time the material, tools and workmen were moved to that point said city through its engineer arbitrarily, wrongfully and without just cause ordered either a suspension of the work at that point or a renewal of the work at another point; that by reason of such arbitrary, unreasonable, wrongful, negligent, continuous and repeated hinderances and repeated delays during the season of 1905, the said contractor was prevented from completing and was unable to complete said improvement and said contract during said season of 1905; that by reason of such wrongful acts of the said city said contractor was at divers times during said season of 1905 compelled to discharge his workmen and teams, and when ordered to proceed with said work he was put to great expense in securing other workmen and teams, for office rent and salaries, for loss of time and railroad expenses of himself and foreign workmen; that during the year 1905 he was put to further extra expense in obtaining labor, teams and material, the prices of which had advanced, and that by reason thereof the labor and material cost $12,913.33 more than it would have cost if said contractor had been permitted to have had possession of said streets and had been permitted to perform said contract during the year 1905; that by reason thereof said contractor was compelled to pay additional amounts for salaries, to-wit: for bookkeeper, the sum of $1,000; for two foreman, the sum of $2,000; for traveling expenses and loss of time of said contractor the sum of $3,000; for interest on the amount invested in said contract, the sum of $600; for office rent, fuel and light, the sum of $250, in all the sum of $6,850 and an additional sum to replace the paving brick that had been broken, the sum of $147.50, all to the amount of $19;910.83, to said contractor’s and now plaintiff’s damages in said sum of $19,910.83, with interest thereon from January 1, 1907.

It is further averred that from the time said contract was entered into and while said contractor was engaged in the performanee of said work, said Sandusky street was occupied by a street railroad company, operating an electric street railroad thereon, with double tracks on a part thereof, under a franchise by the council of said city; by the terms and conditions of which said city reserved the right at any and all times to improve said streets by paving and repaving, and that whenever said city deemed it proper to so improve 'said streets, said railroad company by the express terms and conditions of said franchise was required to pave between its tracks and for one. foot on each side thereof, and if deemed proper by the city to take up. and remove from said streets its tracks and rails so as to allow said streets to be so improved, and give to the city free and unobstructed use of the streets during said improvement; that when the contractor entered into the contract herein sued upon for the improvement of said streets, and when said defendant city entered- into said contract, it was with the knowledge of the terms and conditions of said franchise, and with the understanding and agreement that said city would require compliance with the conditions of* said franchise on the part of the said railroad company -in the removing of its tracks while said improvement was being carried ’on; and but for said knowledge, understanding and agreement said contract would not have been entered into by said contractor; that it was the duty of the defendant city in order to enable the contractor and said construction company to perform said contract-of paving, to require said railroad company to comply with the provisions of said franchise and to take up and remove its tracks entirely from the streets and to so move and shift its tracks as to enable said contractor to occupy and have possession of said streets for the purpose of carrying out its contract without hinderance or obstruction; that said defendant city wrongfully and negligently refused to perform its duty in that respect, and negligently refused to require said railroad company to give plaintiff possession of the streets, and by reason of said neglect and refusal said contractor was prevented from having possession of said streets and was hindered and delayed in the work of grading and paving said streets under said contract, and was not given possession-of the whole of said streets or a part of two blocks thereof at any one time, or of one block, and thereby and by reason whereof said contractor was greatly hindered and unreasonably and wrongfully obstructed as hereinbefore shown in the performance of his said contract, and thereby suffered the expense and loss hereinbefore complained of.

It is further averred in said amended second cause of action that after entering into the contract for the improvement of said streets, the said city wrongfully entered into a subsequent contract with one Hazleton to enter upon Sandusky street, where the Delaware run crosses the same, and tear out the bridge and walls of the bridge and to build a large arch over said Delaware run while said contractor was in the performance of his said contract, said city through the said Hazleton had the possession of said Sandusky street at that point and prevented the said contractor from having the use of said street for the purpose of fulfilling his contract, and delayed him for the space of more than thirty days in the performance of his work, to his great damage as hereinbefore complained of.

That by reason of the facts stated herein the said Metropolitan Construction Company sa.ys there is due it from the said city of Delaware the sum of $19,910.83, with interest from the 1st day of January, 1907.

To the foregoing amended second cause of action, the city of Delaware by its answer admitted said contract and that the said J. F. Gantz performed said contract on his part to be performed and that said improvements were completed on or about November 27, 1906, and wrere accepted by said city, but said city denied the other allegations of said amended second cause of action not specifically admitted in said answer to be true.

Upon the issues made up by the foregoing pleadings, said cause was submitted to a jury resulting in a verdict for the plaintiff. A motion for new- trial was overruled and judgment wuxs entered upon the said verdict. A bill of exceptions was taken containing the evidence introduced upon the trial, including the charge of the trial court to the jury, and said cause by a petition in error filed by the plaintiff in error is before this court for review.

Numerous grounds of error are alleged for the reversal of the judgment of the court below, but four of -which only wei*e urged upon the attention of this court:

First-, that the court below erred in overruling the objection of plaintiff in error to the admission of any testimony on the part of the defendant in exxor on the ground that the allegations of the amended second cause of action wexe insufficient in law, and did not constitute a cause of action against the plaintiff in error.

Second, that the court erred in overruling the motion of the plaintiff in error made at the close of defendant in error’s testimony to arrest the testimony from the jury and render judgment for the plaintiff in error.

Third, that the verdict of the jury is not sustained by the weight of the evidence and the law.

Fourth, that the court erred in its charge to the jury. It appears that the sufficiency of the allegations of this amended second cause of action, in this action, or a cause of action containing in substance the same allegations as in the cause of action before us, was passed upon by the circuit court of this county at a former term thereof; that proceedings in error were prosecuted to the Supreme Court to reverse the said judgment of the said circuit court; that said judgment was by the Supreme Court affirmed, and the cause remanded for further proceedings. In view of this, the duty of this court is plain, and we therefore hold that the first ground of error alleged is not well taken.

For a like reason the second ground of error alleged is also held not to be well taken.

The ground of recovery as claimed by said contractor was based upon the allegations in said amended second cause of action oí the defendant in error that said contractor was unnecessarily and wrongfully obstructed, delayed and hindered in the prosecution of carrying out said contract within a reasonable time by the action of the plaintiff in error, and that as a result thereof said contractor suffered loss and damage as claimed in said cause of action. It need scarcely be remarked that the rights of the parties hereto are to be governed by the provisions oí said contract, of which the specifications attached thereto form a part. As is usual in such cases, the specifications point out the manner in which the work of the, improvement shall be done, the kind of material to be furnished and the prices to be paid therefor, and in this instance no time limit was named for the completion of said improvement. One of the streets to be improved was represented to be one of the main thoroughfares of said city and it was undoubtedly the intent and purpose of the contracting parties that the work thereon should be done in a reasonable time after the work was commenced to avoid inconvenience to the traveling public and other resulting disadvantages to the inhabitants of said city. It is sufficient to say that in the absence of a time limit being fixed for the performance of the contract the implication is that a reasonable time for performance is intended. Vol. 2, Page on Contracts, Section 1154, and authorities cited.

Here the evidence shows that the improvement on Winter street was completed in some eighteen days after said contract was signed, possibly about September 1, 1905, and that the improvement on Sandusky street which covered about three times the distance as that covered on Winter street was not completed until November 27, 1906. Of course the physical conditions may have been different on the two streets, which would not permit of like progress being made on both of said streets; the weather conditions, too, are not to be overlooked, but taking the conditions as the contractor found them on commencing said work, it is contended that said city" wrongfully permitted parties to occupy said Sandusky street, and refused and failed to give the contractor possession of said street, or parts thereof, as provided by said contract, so that instead of completing said improvement on‘said Sandusky street during the year 1905, as he could and would have done.but for such action on the part of said city, he was obliged to return to said city and finish said work the following year, to his damage as alleged in said amended second cause of action. All liability on this ground was denied by said city, hence the burden was upon the contractor to make proof of his claim in the respects mentioned, and if so made, was said city liable f As already stated, no time limit having been fixed in said contract for the completion of said work, said city would have reason to expect that said improvement would be completed within a reasonable time, and in the absence of intervening causes over which the contractor had no control, the contractor would be liable for a breach of such contract, and, on the other hand a corresponding obligation would rest upon said city not to unreasonably delay the contractor in the prosecution of his said work, for one party to a contract may make it impossible to perform the contract, or may delay tbe performance, or. if a contractor lias himself suffered damage by reason of such delay he may recover damages. Page on Contracts, Sections 1444-1445, et seq.; Langford v. U. S., 95 Fed. Rep., 935; Kelly v. U. S., 31 C. C., 361; City of Toledo v. Libbie, 19 C. C., 704.

An examination of the bill of exceptions with reference to this assignment of error, without going into the details of the evidence, tends to show that the contractor in carrying on tihe work of this improvement was more or less embarrassed and hindered by delays occasioned by various causes, among which was the action of the street railroad company operating an electric railroad on said Sandusky street, and the action of said city in causing to be construed a bridge over what is known as Delaware run, over both of which said city had control. Under the law said city had the supervision and control of its streets, and it also had the power under the terms and conditions, of the franchise granted by it to said railroad company to compel said railroad company to remove its tracks to permit of said improvement being made on said Sandusky street, and refusing, it had the right to seek the aid of the courts to compel observance of its rights by injunction. Other causes of delay existed as shown in said bill of exceptions, all of which were questions of fact for the determination of the jury.

Under the question of notice to said city that the work of the contractor was being interfered with and delayed by obstructions put in his way by the action of said city and that such delays were to his disadvantage and to his damage, we think the evidence shows that said city was repeatedly given such notice by the contractor. We further think that the principle laid down in the case of Castwater v. Sciolo Pool Co.. 12 C.C.(N.S.), 382, is not applicable to the case at bar.

Under a full and careful examination of the evidence offered and introduced upon the trial in respect to the suspension of this work by the engineer of said city in respect to said city failing to grant said contractor possession of said Sandusky street for the carrying on of said improvement on said street as contemplated by the terms and provisions of said contract, bearing in mind that the jury are the judges of the weight of the evidence, and that reviewing courts should be slow to disturb their finding unless for good and sufficient reasons, we are unable to say that the evidence in this case is manifestly against the weight of the evidence or contrary to law.

It is also urged that the court below in its charge to the jury was not impartial or fair, so much so, that said charge was prejudicial to the rights of plaintiff in error in this, that said court unduly emphasized the proposition of unreasonable delay on the part of said city as claimed by said contractor and laid undue stress and emphasis upon the necessity of said city performing those things reserved to it under said contract to be' performed, especially to the related action of the city to said street railroad company in reference to the furnishing and {Hitting down rails for the street railroad on said street, and the alleged delay occasioned thereby. We have examined said charge with reference to this objection and we fail to find anything that indicates partiality, bias or prejudice in defining or describing unreasonable delay therein when said court referred to the effect of the alleged refusal and neglect of the street car company to furnish such rails as said city ordered to be furnished. Having power to compel said street railroad company under the terms and conditions of said city ordinance granting said franchise to remove its rails for the paving and repaving of said street if its failure to do so resulted in causing unreasonable delay to the contractor in carrying on his work on said street whereby be was damaged, such unreasonable delay would be chargeable to said city. It is urged by plaintiff in error that because of the foregoing and other like instructions in the court’s charge to the jury said tiial court erred, to the prejudice of the plaintiff in error. We certainly approve the citation by counsel for plaintiff in error of Washington Mut. Ins. Co. v. Merchants & Manfrs. Mut. Ins. Co., 5 O. S., 450-482:

“A court, in charging a jury, may very properly call the attention of the jury to the evidence, in order to show the application of the law gbverning the case, or the legal purpose and effect of the testimony, but the statement of the evidence by the court argumentatively so as to give the-jury the manifest conclusion of the court as to the fact submitted to their determination, is uniformly condemned as improper.”

And further, that the trial court shouuld not first argumentatively state to the jury the circumstances shown in the proof of a case and after intimating to the jury the views of the court upon such proof, then state to the jury “but you are the sole judges of the facts,” etc.

We also fully subscribe to the doctrine quoted from Weiss v. Bethlehem Iron Co., 88 Fed. Rep., 23, wherein the court held that :

“It is error for the court to submit the evidence and theory of one party prominently and fully to the jury and not call their attention to the main points of the opposite parties of the case. ’ ’

Both of the foregoing propositions are good sense and sound law. They contain the elements of fairness and nothing short of this is justice to litigants. Courts .are created to administer the law — to all alike — and nothing short of this will satisfy the aim of the law. Hence it is that courts in their .charge to the jury should not arrogate to themselves the province of the jury by assuming to determine the facts in the ease, or to state the law applicable to the facts on one side in a ease, only, but should state the law fairly and fully as applied to all the material facts in a case. Here it is claimed by the plaintiff in error that the major part of the charge of the court below was devoted to the theory upon which the defendant in error might recover, and that undue prominence was given by said court to the jury of the alleged unreasonable delays claimed to have been suffered by the defendant in error on account of the action or non-action of the plaintiff in error. An examination of said charge shows that said court called the attention of the jury to the claims of both the plaintiff in error and the defendant in error and instructed the jury in reference to each and every material issue thereof, not argumentatively, but simply called the attention of the jury to so much of the evidence as seemed neees- ' sary to show the application of the law in the ease. Of course the charge is to be considered as a whole, and not any particular portion of it as if standing alone. No special requests in writing were submitted to be charged, nor were any requests made orally to be charged, only a general exception being taken to the charge at the conclusion thereof. As was said by the court in the case of City of Toledo v. Radbone, 3 C.C.(N.S.), 382:

‘ ‘ It is not competent for one who has filed a general exception to the charge of the court to afterwards select a single sentence or paragraph for complaint where the court was not asked to charge specifically upon that point. ITe must take the whole charge together. ’

And upon the subject of showing the trend of judicial thought in cases where prejudicial error.has not intervened in the charge of a trial court, we refer to the holding of the court in the case of Baird v. Burton Telephone Co., 10 C.C.(N.S.), 163, wherein said court while finding there was error in the charge of the court below found that such error was not prejudicial and further held: v

"Where the whole evidence adduced upon the trial is made part of the record by a bill of exceptions, the court in determining whether the judgment should be reversed will examine the evidence as well as the charge with a view to determine whether under all the circumstances substantial justice has been done, and if it has the judgment will not be reversed for error in the charge. ’ ’

Again in Kauther v. Vigransky et al, 12 C.C.(N,S.), 48, it is held:

"Errors of law, if any occurred during the trial of the case are not prejudicial where the verdict is fully sustained by the evidence.”

Upon the whole case, we are of the opinion that said case was -fairly tried; that the charge of the court below fairly stated the law applicable to the issues raised upon t’ne pleadings and the evidence in the ease, and although' there may have been teehnical errors in said charge we are of the opinion that they were not prejudicially erroneous to the rights of the plaintiff in error and do not justify a reversal of the judgment of the court below. '

We have also examined said bill of exceptions with reference to the other assignments of error contained in said petition in error and we find no such error therein as to justify a reversal of the judgment of the court below.

The judgment of the court of common pleas will therefore be affirmed, with costs. Exceptions maj^ be noted.


text:
    INSURANCE AGAINST OCCUPATIONAL DISEASES.
    Court of Appeals for Hamilton County.
    The Industrial Commission of Ohio and Wallace D. Yaple et al v. David Brown.

    Decided, January 23, 1915.

      Workmen’s Compensation Aot — Word “Injuries" Includes Occupational Diseases — Protection to Employees Against Disease or Harm to Health.

    The language employed in the workmen’s compensation act is sufficiently broad to include occupational diseases, and inasmuch as the disease sometimes contracted by industrial workers, due to the nature of their employment, are of 'a' grave character, and are known to have been under consideration by the Legislature which enacted the law, it must be concluded that it was the intention such diseases should be included in the provisions for disabled workmen.

      Tvmolhy 8. Ilogan, Attorney-General, Jas. L. Boulger, Assistant, Thomas L. Pogue, Prosecuting Attorney, and John V. Campbell and Carl M. Jacobs, Assistants, for plaintiffs in error.

      Kelley, Huseman Remite, contra.

      Jones (Oliver B.), J.; Jones (E. EL), J., concurs; Swing, P. J., dissents.

       Affirming Plasco v. American Carriage Co., 15 N.P.(N.S.), 273, and Brown v. Industrial Commission, 16 N.P.(N.S.), 160.

   .The question to be determined in this case is whether the “injuries” provided for in the workmen’s compensation act of Ohio includes occupational diseases contracted in the course of employment.

The original workmen’s compensation act is entitled “An act to create a state insurance fund for the benefit of injured, and the dependents of killed employees,' and to provide for the administration of such fund by a state liability board of awards.” It was passed and approved by the Governor, June 15, 1911, and is found in 102 Ohio0 Laws, 524, including Sections 1465-37 to 1465-79 of the General Code. This law made the creation of the state insurance fund voluntary with both the employers and the employees. It was amended by the act passed in 19Í3, filed in the office of the Secretary of State March 17, 1913, and is found in 103 Ohio laws, 72, amending certain sections of the original law and adding thereto, including Sections 1465-42 and 1465-106. This made the law compulsory for all employers employing five or more workmen or operatives, and included also persons in the service of the state, counties, municipalties or school districts.

Intervening between the two laws the Constitution of Ohio was amended by the people at the election held September 3, 1912,- by providing Section 35, Article II, which authorized legislation to provide for compulsory workmen’s compensation.

It is proper to consider this constitutional amendment and these acts together in the determination of the legislative intent; and it is also allowable to consider the legislative history of the statute as an important element in construing it, where any ambiguity is found. Lewis’ Sutherland Statutory Construction, Section 470, p. 879; McLean v. U. S., 226 U. S., 375, 380; R. R. Co. v. Washington, 222 U. S., 370, 380; Oceanic Steam Nav. Co. v. Stranahan, 214 U. S., 320, 333.

Under the act passed May 10, 1910 (101 Ohio Laws, 231), » commission was appointed consisting of “five electors of the state known to possess knowledge and training in the subject of employers’ liability laws and compensation of employees for injuries received in the course of employment * * * to make an inquiry, examination and investigation into the subject of a direct compensation law or a law affecting the liability of employers to employees for industrial accidents.”

This commission made a full, detailed report to the Legislature, which has been printed, and which has collected a great mass of evidence and facts,'and interesting matter in relation to the subject. On page lviii Mr. Emile E. Watson, director of investigation, in connection with this work, used the 'following language in regard to occupational diseases:

“It is difficult to make any clear distinction between industrial accidents and occupational diseases. Often the latter are responsible for the former.”

Many plans were discussed by the commission, and the draft of a bill was submitted. The act, however, as finally passed was not identical with that recommended. Among the other recommendations made by the commission is the one found on page Ixii containing the following language:

“Mr. E. E. Watson, the investigator in chief of the commission, has called our attention in his report on the fatal accidents in Cuyahoga county, Ohio, to the great need of investigation of occupational diseases which undermine the health of working men and put the state to great expense in maintaining hospitals and caring for the little ones.
“Inasmuch as European countries recognize occupational diseases as an important factor in their industrial problem, and many of our own industries develop the same without any systematic provision for their care and prevention.
‘ ‘ The commission recommends that the General Assembly take such action as is most wise to correct the dangerous conditions which have'long existed, and which injure the health and safety of industrial workers of this state.”

It is argued that because joint resolutions of the General Assembly were adopted in 1911 and 1913-, authorizing and directing the state board of health to make an investigation of occupational diseases, which resolutions are found in 102 O. L., 749, and 103 O. L., 975, therefore it might be concluded that no legislation had yet been had upon the subject. There is, however, an act for the prevention of occupational diseases with special reference to lead poisoning, passed April 18, 1913, found in 103 0. L., 819. This act, however, is for the prevention of occupational diseases and not for the payment of compensation to the victims thereof. It must be understood that these matters of prevention and compensation are two entirely distinct subjects, and may be legislated for by entirely distinct.and separate laws.

Section 35, Article II of the Constitution as amended, is in the following language:

“For the purpose of providing compensation ta workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom,- and taking away any and all rights of action or defenses from employees and employers; but no right of action shall be taken away from any employee when •the injury, disease or death arises from failure of the employer to comply with any lawful requirement for the protection of the lives, health and safety of the employees. Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of contribution to such fund according to such classification, and to collect, administer and distribute such fund, and to determine all rights of claimants thereto.”

It is argued .that the words , in this section provide for at least two separate classes: “injuries,” which plaintiffs in error contend means accidental injuries, and “occupational diseases,” which is entirely distinct. It might as well be argued that compensation for death must likewise be entirely separate. The words used “providing compensation * * * for death, injuries or occupational diseases occasioned in the course of such workmen’s employment” do not necessarily mean separate provisions. An injury, whether resulting from an accident or from disease, may result in death, so that the term “death” would cover both. The word “injury” in its etymological signification is sufficiently broad and. inclusive to cover both an accidental injury and also an injury because of an occupational disease, and the use of the disjunctive “or” indicates that the two are in the alternative or used in an explanatory sense rather than that they are used as constituting, two distinct classes. And this argument is strengthened by the further wording of the clause, as provision is made for “laws establishing a state fund,” not two distinct^ funds, but a single “state fund.” And the section further provides for the passage of laws establishing a board, not a board for accidental injuries and another board for occupational diseases, but one board “to classify all occupations according to their degree of hazard.” This language provides for the hazard of accident as well as the hazard of occupational disease; “to fix rates of contribution to such fund” (still providing for a single fund) “and to collect, administer and distribute such fund, and to determine all rights of claimants thereto.” While the language used in this section does not absolutely preclude the separation of these subjects into two matters of legislation providing for two or more boards and two or more funds, yet it indicates that the whole subject, including all of the evils provided for, should be legislated for by the creation of a single board and a single fund to- cover compensation for all “injuries.”

The argument is made that the use of the word “killed” in the title of the original act carries with it an indication that it. means killed by accident.. The definition given by Funk & Wagnall’s Standard Dictionary of the verb “Kill” is: “to put an end to the animal existence of; put to death, as a human being.” And in a discussion of the synonyms of the word, it is stated: “ to kill, is simply to deprive of life, human, animal or vegetable, with no suggestion of how or why. ’ ’ In the ordinary use of language it certainly is as proper to say that a man is killed by one of a number of repulsive and deadly so-called “occupational diseases” as by accident.

The word “injury” is defined by the Century Dictionary as “harm inflicted or suffered; mischief; damage; hurt.” It is defined by Judge Shelton of the Supreme Court of Massachusetts In Be Burns, 105 N. E., at page 603:

“In common speech the word 'injury’ as applied to a personal injury to a human being, includes whatever lesion or change in any part of the system produces harm or pain, or a lessened facility of the natural use of any bodily activity or capability. ’ ’

There can be no question but that the word is broad enough in its usual- and accepted meaning to cover not only an injury by accident, but also an injury caused by an occupational disease such as lead poisoning.

It is hardly necessary to go through the different sections of the two Ohio laws to discuss the words used therein, but a careful examination will show that the word “injury” is used alone and not in connection with the term “accident” or “accidental.” In Section 36 (G. C. 1465-75.) of the original act and Section 43 of the later act (G. C. 1465-90) where an appeal is provided for, the word “accident” is used, but it is used only in one of three several clauses which read together do not exclude the case of an occupational disease. It is urged that the word “inflicted” in this connection — “that the injury was self-inflicted” — indicates something too positive and active to apply to a disease. But recourse to the dictionary shows a definition given by the Century of the word '.‘inflict”: “to lay on, or impose, as something that must be borne or suffered; caused to be suffered; as to inflict punishment on offenders. ’ ’ The word is unusual in connection with disease, but is equally unusual in connection with an accident, and can undoubtedly be applied to one as well as to the other.

The first act under consideration here was before the Supreme Court in the ease of State, ex rel v. Creamer, 85 O. S., 349. The only question before the court in that case was whether or not the act was constitutional, and it was held by the court to be constitutional. Nothing else was considered by the court. There was.no question before it as to the extent of the act, whether it covered occupational diseases as well. Counsel in this case have, however, quoted the language used by Judge Johnson in two places in the opinion. On page 386:

“It provides a plan of compensation for injuries not wilfully self-inflicted, resulting from accidents to employees of employers, both of whom have voluntarily contributed to the fund.”

And on page 389, referring to the report of the commission before referred to, tbe following language:

“Substantially its conclusions are, that the system which has been followed in this country of dealing with accidents in industrial pursuits is wholly unsound.”

The matter under discussion by the court in that case, as was stated before, was the legislative power to deal with the matter, and not the extent of the provisions they had made by the law under consideration, and the words used were not in-' tended to limit the operation of the law, but are perfectly consistent with the view we. have adopted.

The difficulties that meet us in considering this question arise largely from the form of the English workmen’s compensation act, which was largely used as a guide in framing legislation by several states in this country including our own General Assembly. Under the English law the claimant must have suffered an injury by accident. In Turvey v. Brintons, Ltd. (1904), 1 K. B., 328, it was held that a workman who had become infected with anthrax, a disease from wool by means of the bacillus from the wool entering his system through the eye, had received an injury by accident and came within the terms of the act. But in Steel v. Cammell, Laird & Co. (1905), 2 K. B., 232, a workman who had handled white and red lead, and became affected with lead poisoning, was held not to have received an injury within the terms of the act. The act was afterwards amended so as to specifically include certain occupational diseases, among which was lead poisoning, all set out and contained in a schedule. It did not attempt to declare any such occupational disease an accident, but without changing the general terms of the act, provided compensation therefor “as if the disease * * * were a personal injury by accident arising out of and in the course of- that employment. ’ ’

A number of our states have adopted the English act as the basis of their workmen’s compensation laws, and have carried into the terms of the act words requiring the injury to be accidental. This is true in Michigan, where the title of the act, which under the terms of the Michigan law is an essential part provides “compensation for the accidental injury or death of employees.” The Supreme Court of Michigan in the case of Adams v. Acme White Lead & Color Works, 148 N.W., 485, which is relied upon by counsel for plaintiffs in error, discuss this subject fully, and come to the conclusion because of the terms of the Michigan act, that a ease of lead poisoning does not come within its benefits.

The same is true as to the laws of New Jersey, where tihe term “injury by accident” .is used in the law. In Liondale Bleach, Dye & Paint Works v. Riker, 89 Atl., 929, where the claimant was affected by a rash caused by contact with dampened goods being dyed, it was held that the petitioner was not injured by an accident and was therefore not within the terms of the act.

The Massachusetts law, however, is similar to that of Ohio in providing damages for a personal injury sustained by an employee in the course of his employment. The case of In re Hurle 104 N. E., 336, is directly in point. It authorized the payment, under the act, for loss of vision in both eyes, which resulted from an acute attack of optic neuritis caused by coal tar gases. In. the opinion, Rugg, C. J., enters into a full discussion of the subject. At the close of his opinion he uses the following language, page 338:

“The difference between the English and Massachusetts acts in the omission of the words ‘by accident’ from our act, which occur in the English act as characterizing personal injuries, is significant that the element of accident was not intended to be imported into our act. The noxious vapors which caused the bodily harm in this ease were the direct production of the employer. The nature of the workman’s labor was such that they were bound to be thrust in his face. The resulting injury is direct. If the gas had exploded within the furnace and thrown pieces of cherry hot coal through the holes into the workman’s eye, without question he would have been entitled to compensation. Indeed there probably would have been common law liability in such ease. There appears to be no sound distinction in principle between such case and gas escaping thrtfugh the holes and Striking him in the face whereby through inhalation the vision is destroyed. The learned counsel for the insurer in his brief has made an exhaustive and ingenious analysis of the entire act touching-the words ‘injury’ or ‘injuries’ and has sought to demonstrate that it can not apply to an injury such as that sustained in the case at bar. But the argument is not convincing. It might be decisive if accident had been the statutory word. It is true that in interpreting a statute words should be construed in their ordinary sense. Injury, however, is usually employed as an inclusive word. The fact remains that the word ‘injury’ and not ‘accident’ was employed by the Legislature throughout this act. It would not be accurate but lax to treat the act as if it referred merely to accidents.”

This case also decides that—

‘‘At common law the occurring of a disease or harm to health • is such a personal injury as to warrant a recovery, if the other elements of liability for tort are present. ’ ’

Another recent case decided by the Supreme Court of Massachusetts is directly in point: Johnson v. London Guarantee & Accident Co., 104 N. E., 753. The syllabus is as follows:

“ ‘Personal injury’ within the workmen’s compensation act, includes any injury or disease, as lead poisoning, arising out of or in the course of the employment, causing incapacity for work, and thereby impairing ability for earning wages.
‘‘Though prior to, as well as after, the time the workmen’s compensation act went into effect, an employee, engaged as a lead grinder, absorbed lead into his system, he received a'personal injury, within the act, only when the accumulated effect thereof manifested itself and he became sick therefrom and unable to work.
‘ ‘ The personal injury of a lead grinder, sickness incapacitating him from work, resulting from the accumulated effect of gradual absorption of lead into his system, arises ‘out of and in the1 course of his employment within the workmen’s compensation act.’ ”

This case fixes the time of the injury as the time that he became sick from such disease and unable to work. This removes an objection made by counsel that the date of the injury would be uncertain, and it must be fixed under certain sections (among others, Sections 25 and 26 of the first act, and' 31 and 32 of the second act).

In the opinion of the court, therefore, in the light of its acts and proceedings the Legislature must be deemed to either have included, occupational diseases in the legislation already had, or to have postponed legislation in regard thereto until further light can be had upon the subject. As we have found that the language employed in the acts under consideration is so broad in its terms as to include occupational diseases, and as the matter was under consideration by the Legislature, and the evils arising from these diseases are of as grave a character and as worthy of prompt legislation as different forms of industrial accidents, and are as much entitled to be made a charge upon the industry in every respect, we can but conclude that it was the intention that compensation should be provided for such occupational diseases by the present law. If such conclusion should be incorrect, the law can be amended so as to clearly exclude occupational diseases and to confine the compensation purely to industrial accidents. Even if the language of the act should be deemed susceptible to either construction, it is clear that that construction should be accepted which would provide compensation for those who have contracted occupational diseases in the course of their employment, rather than that which would permit them to be without remedy for the period required to provide such further legislation as might be deemed necessary to include them beyond all question.

The conclusion of the court therefore is that the court of common pleas was correct in finding that the plaintiff below is entitled to compensation under the act, and the judgment is affirmed.


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    POWER. OF THE COMMON PLEAS COUR.T OVER. ITS OWN JUDGMENTS.
    Circuit Court of Cuyahoga County.
    Arthur L. Seelbach v. Elizabeth Craft.
    Decided, June 4, 1909.

      Judgments — Vacation at Same Term — Review.
    1. The court of common pleas has full control over its own orders and judgments during the term at which they were rendered and may vacate or modify them at discretion.
    2. Where a judgment is vacated at the same term at which it is rendered, a reviewing court will not weigh the evidence introduced upon the hearing of the motion to vacate to determine its sufficiency.

      Higley Maurer, for plaintiff in error.

      J. G. Mansfield, contra.
    Winch, J.; MIarvin, J., and Henry, J., concur.
   At the September term, 1904, of the Common Pleas' Court of Cuyahoga County, plaintiff in error recovered a judgment against defendant in error upon a cognovit note. At the same term, but more than three days thereafter, defendant in error filed her motion to vapate said judgment alleging, among other things, .that she had a good defense to said note.

Said motion was heard and granted, the court finding that sufficient grounds existed to vacate said judgment, but no finding was made as to there being a valid defense to the action. To said order plaintiff in error excepted, filed this bill of exceptions containing all the evidence introduced at said hearing, and now brings the matter here on a petition in error praying for a reversal of said order vacating his judgment, claiming that it is erroneous by reason of the fact that the trial judge failed to find and state in his order that a valid defense to the action existed, and further, that the bill of exceptions shows that as a matter of fact no such defense exists.

Had the judgment been vacated at a term subsequent to the one at which it was entered, plaintiff’s contention should be sustained under Sections 5359 and 5360, Revised Statutes. But said sections apply only to the vacation of judgments after the term at which they were made.

That the court of common pleas has full control over-its own orders and judgments during the term at which they are rendered and the power to vacate or modify the same at discretion, is well settled in Ohio: Huntington v. Finch, 3 O. S., 445; Niles v. Parks, 49 O. S., 370; Huber Mfg. Co. v. Sweny, 57 O. S., 169.

It follows that the order complained of having been made at the same term as the judgment, a reviewing court will not consider the evidence introduced on the hearing of the motion, for the purpose of determining whether it is sufficient to sustain the judgment of the court on the motion. Niles v. Parks, 49 O. S., 370.

We find no reason for reversing the order complained of, and the judgment is affirmed.


text:
    COMPETENCY OF DECLARATIONS BY A DECEASED HUSBAND.
    Circuit Court of Cuyahoga County.
    Sarah E. C. Beck v. Benjamin A. Gage et al.
    Decided, February 18, 1907.

      Evidence — Declarations of Maker of Note as to His Relations with Payee, "When Not Admissible.

    In an action upon a promissory note brought by a widow against the administrator of her deceased husband’s estate, in which the only issues are as to the execution of, and consideration for, the note sued upon, declarations of the deceased husband made to third parties in the absence of the wife, as to the relations existing between himself and his wife at that time, are not competent evidence.

      Arnold Green, for plaintiff in error.

      Solders, Thayer Mansfield and Guerin & Gage, contra.
    Míarvin, J.; 'Winch, J., and Henry, J., concur.
   The parties here are as they were in the court below. Suit was brought by the plaintiff against the defendant, to have allowed as a valid claim against the estate of Fred’k T. Beck, deceased, an amount which she claimed was due to her upon a promissory note, copied in the petition, which reads:

“$500.00. September 20, 1899.
“On demand for value received I promise to pay Sarah E. O. Beck Five Hundred Dollars, with interest at six per cent.
“Frederick Thomas Beck.
“Seventy-six (76) years of age. Born in London, March 22, 1823.”

Endorsement on back:

“November 13, 1902, $5.00 on interest.”

The petition sets out that Gage is the administrator of the estate of Frederick T. Beck, deceased; that in his lifetime the decedent executed the note and delivered it to plaintiff; that she presented the note for allowance to the administrator, who refused payment, and she prays that the note may be allowed as a valid claim against the estate.

The answer of the defendant admits his appointment as administrator, and the presentation and rejection of the claim, and then follows with a general denial.

It is manifest that the burden put upon the plaintiff was to show that she.had the note copied in the petition, and that it was executed by the decedent and delivered by him to her, and that when she had shown these facts she had made a prima facie ease. She introduced certain witnesses to testify as to the genuineness of the signature of the deceased to the note which she produced, and then she was placed upon the stand and testified that she was the widow of Frederick T. Beck, that she was familiar with his -handwriting, and that the signature upon the note was the genuine signature of Frederick T. Beck; that the body of the note was written by himself, and she detailed (without objection) the circumstances under which the note was given, and that she gave him $500 in money for this note. She was then cross-examined very extensively, and' among other things was asked as to the relation between herself and her husband, whether they were pleasant or otherwise.

One of the questions in this cross-examination was:

“At the time and prior to the 20th of September, 1899, your domestic relations with Frederick T. Beck, deceased, were not of a friendly nature were they?”

To which she answered:

‘ ‘ Just as much so as any married couple, they have their ups ' and downs. ’ ’

And a number of questions of this nature was asked.

She testified, too, upon cross-examination, that she had about $450 at home, which she could have given to her husband, and that she went to Michigan to get the balance, $50, to make out the $500, and that her husband wanted the money with which to’ build a barn.

The defendant then put upon the stand a number of witnesses for the purpose of showing that the relations between the plaintiff and her husband were unpleasant, and it is urged that such questions were proper, because if the relations were unpleasant between the parties she would-not be likely to lend her husband $500, or any other sum.

We are not prepared to say that it was error to admit evidence of this sort, though there seems to have been some confusion as to just what issue was on trial. The issue raised by the pleadings was whether Beck gave his wife this note for a valuable consideration, and except as bearing upon this issue in some way, it was incompetent.

■ Some o’f the evidence permitted over the objections of the plaintiff, we think, was wholly incompetent, but as to a considerable part of such incompetent testimony we think probably no prejudice was worked to the plaintiff, but that prejudice was worked to the plaintiff in the admission of the testimony of Austin, of George H. Beck, and Alfred F. Beck, we have no doubt, and that they were permitted to give incompetent testimony we have no doub't. Each of these witnesses was permitted, over the objection of the plaintiff, to give conversations had with the deceased in the absence of the plaintiff, tending to show that he had ill-feeling against her; that he had no affection for her, and that their relations were not friendly.

Bearing in mind that the issue here was whether the note sued upon was the genuine note of Frederick T. Beck given for value, and that the only possible bearing that the relations between Beck and his wife could have upon it would be upon the probability of his borrowing money from her if their relations were unpleasant, the declarations of Beck, in his wife’s absence, that he did not love her, could not be used against her. Suppose he were living and this suit had been brought against him, could he introduce his own declarations made in the absence of his wife, that their relations were unpleasant, that he did not love her, nor she him, and so try to influence the judgment of the jury as to the probability of the loan having been made ?

It has probably never been supposed that Antonio could have set up as a defense against the bond which Shylock held, that he, Antonio, had spat upon his Jewish garberdine, called him cutthroat and dog, upon the Rialto, and yet it would seem to be about as competent as.the declarations of Beck, here permitted to be given in evidence. The question seems to answer itself. The declarations of this man on this subject are no more admissible in his favor than any other self-serving declarations made by him. It has never been the law that a man may make use of his own declai’ations made in the absence of his adversary, against such adversary.

On the part of the defendant in error it is urged that such declarations ■ are admissible for the same reason that if the suit were brought by a husband against some man for alienating his wife’s affections, declarations of the wife made in the absence of her husband that she had no affection for him, would be admissible; but clearly there is a reason for that rule which permits the admission of declarations said to have b’een made by her in the absence of her husband.

The husband who brings suit for the alienation of his wife’s affections, as the ground of his aetion relies upon the fact that he was deprived of the affection of the woman to whose affections he was entitled, and if it can be shown by her declarations made before the alienation complained of that she had no affection for her husband, it would, of course, be admissible in mitigation of damages. .The husband would be entitled to less for the alienation of the affections of a wife which were but very slight, or did not exist at all, than he would for the alienation of the affections of a wife, who, prior to the wrongdoing of the defendant, had a genuine and earnest affection for him, and her declarations made even without her husband’s knowledge before the wrong for which suit is brought, would have a direct bearing upon the question of what kind of a wife she was, the loss of whose affection the husband was suing for.

We are cited by counsel for defendant in error to 16 Cyc. of Law and Procedure, at pages 1180 to 1183 on this question. We find nothing in reference thereto which aids us in determining the question now being consideréd.

Complaint is made on the part of the plaintiff in error of the charge of the court, and especially because the court gave the eighth instruction requested by the defendant.

This instruction reads;

“The testimony is before yon on behalf of the defendants as to the domestic relations between the plaintiff and her husband, Frederick T. Beck, at or about the time of the date of September 20, 1899; as to whether such relations were strained, unfriendly or otherwise; expert testimony as to the character of the note set forth in said petition has been placed before you, and testimony as to the funds that deceased had in bank at said date, his income, prospective income from the sale of grapes and produce of the farm, and his expenses at said dates, all of which is in the ease and to be considered by you as bearing upon the execution and signing of said note, and whether there was any considerable consideration therefor.”

This ought not to have been given. It called especial attention to certain testimony, to-wit: the declarations of the deceased in the absence of his wife as to his feelings towards her. This testimony we hold to have been incompetent and hence the attention of the jury should not have been called to it.

The balance of this ought not to have been given, because it calls especial attention to certain parts of the evidence in such wise as to be likely to mislead the jury and induce them- to regard it as of more importance than some of the other evidence; whereas, though it may have been admissible, it had a most remote bearing, if any, upon the issues in the case.

Complaint is further made that the court refused to give in charge certain' requests made by the plaintiff.

From what has been said in reference to the testimony of the witnesses, as to conversations of the deceased in the absence of his wife, it follows that the second, third and fourth of these requests should have' been given. They relate entirely to the testimony of witnesses in regard to these conversations and ask that such testimony be disregarded.

The real error was committed in admitting the testimony, but it having been admitted, the plaintiff was entitled at least to have the court distinctly instruct the jury that no attention should be paid to it. The result of this reasoning is that there was error to the prejudice of the plaintiff, entitling her to a reversal of the judgment, and the judgment is reversed, and the case remanded for a new trial.

       Affirmed without opinion, Gage, Admrx., v. Beck, 76 Ohio State, 575.


text:
    FORFEITURE IN MUTUAL BENEFIT SOCIETIES.
    Circuit Court of Cuyahoga County.
    W. H. Schwartz, Administrator, et al v. The St. Elizabeth Roman and Greek Catholic Union et al.
    Decided, March 4, 1907.

      Mutual Benefit Societies — Delinquency as to Dues Does Not Worh Forfeiture.

    Where a suspension for non-payment of dues is provided for in the laws of an association, the fact of delinquency alone, does not, ipso facto, work a forfeiture; a suspension by formal proceedings is necessary.
    W. JET. Schwartz and Hart, Canfield Crokc, for plaintiff in error.

      M. B. Putney, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The parties here are as they were in the court below. . The administrator of the estate of Maria Kohanczo, deceased, her husband and children are the plaintiffs, and the defendants are the St. Elizabeth Roman and Greek Catholic Union, and the several officers of said union. The union is an incorporated beneficial association, organized in August, 1908, with the following constitution and by-laws:

“The Constitution and By-laws of the St. Elizabeth Roman and Greek Catholic Union.
Chapter I.
“Name, Seat and Aims of the Union.
“Paragraph 1. The name of the union which can not be changed while the union is in existence is St. Elizabeth Roman and Greek Catholic Union.
“Paragraph 2. The seat of the union is Cleveland, Ohio. The seal of the Cleveland Union contains the following inscription: ‘St. Elizabeth Roman & Greek Catholic Union.’'
“Paragraph 3. The aim of this union is the Roman and Greek Catholics who emigrate to America from Hungary or who were born in this country from Hungarian parents, who keep these rites or who direct the rites according to the rules and regulations of the Catholic faith, to promote their attachment to the native branch, and to aid after the decease of its members their widows aiid orphans with a sum of money as specified in these by-laws.
'£ Chapter II.
“■Bights and Duties of Members.
Paragraph 4. Any Roman or Greek'Catholic Hungarian man or woman will be admitted as a member of this union who has reached his or her age of 16 years and is not older than 50 years old.
“Such persons who have been punished before or who are fugitives from justice, he will not be elected as a member of the union.
“If a member got into the union by false allegations or false data, and it is found out that, for instance: he is a fugitive from justice can not be elected and will be expelled from the union.
“Paragraph 5. Local people, or people living in this city, can report their intention of joining the union by a regular member. Only branches consisting of at least 25 members will be accepted as out of town members of the union.
“The trustees of the out of town branches are the heads of such branches.
“The union reserves its rights always to supervise such trustees and officers of the union, and these trustees are responsible for their branches.
£ £ Should there be any complaint against a prospective member or a branch this has to be taken before the meeting and the meeting will decide about this complaint.
“Paragraph 6. (Second section.)
1 £ If the prospective member or branch fully answers the prescriptions of Paragraph 4, they may be admitted into the union.
“ Paragraph 7’. Every member after receiving two votes shall be a member and has the right to vote immediately after being admitted, but can only be elected' officer after a membership of six months.
“Paragraph 8. The intiation fee shall be:
“From 16 — 25 years $1.30
“From 25 — 35 years $1.40
“From 35 — 45 years $1.50
“From 45 — 50 years (not reached).
“Paragraph 9. From the money paid in advance to the secretary, from the initiation fees one dollar shall constitute the capital of the union; the rest shall cover the expenditures of the union.
“Paragraph 10. Every member has to pay into the treasury of the union thirty cents semi-annually; the money so collected shall be used for the expenditures of the union; i. e., for the official organ, hall rent, fitting up the office, etc. The money left after such expenditures shall be added to the capital of the union.
“Paragraph 11. After the decease of any member of the union the heirs shall receive as many dollars as the union has members.
‘ ‘ In the ease of total disability; that is if a member lost oue arm, one leg or both eyes, such member has to report the accident to the board of officers of the union. The board of officers shall thoroughly examine, the case and if the total disability was proved, such member shall get as half death benefit as many fifty cents as the union has members. Both the death and accident benefit will be paid by the members in such a way that if a member of the union died or was found totally disabled by the board of officers, every member must pay the oue dollar death-assessment, respectively the 50 cents accident assessment to the treasurer of the union within fourteen days.
“Paragraph 12. Should a member fail to pay the death-benefit dollar after the decease of a fellow member, then, in case of his death, his heirs could not claim any death-benefit from the union.
“Paragraph 13. Should a member of the union remove from the seat of the union and should he want further to remain a member, then he must report his removing to the president or secretary. Anyone failing to do so will not be considered a member of the union any longer.
1 ‘ Paragraph 14. Members living remote from the seat of the union are submitted to all duties prescribed by the laws of the union.
“Paragraph 15. If a member quits the union and wants to join it again, he can only be accepted as a new member.
“Paragraph 16. If any member of the union, for any cause whatever, insults the union or causes any damage to the same, then he shall be expelled from the union, and only in such case can he be retaken, if he acknowledges his mistake and apologizes to the union and if the apology was accepted, he reimburse the union for the damage caused by him.
“Paragraph 17. Expelled members lose all their rights' against the union and can not even appear at the meetings of the union.
‘ ‘ The members who quit or were expelled, can not claim any damage whatever or the re-payment of the moneys paid in by them.
“Chapter III.
“Election of Members and Officers.
“Paragraph 18. Such persons who want to join the union must be recommended by regular member and must prove the state of their health by a physician’s certificate, which they must present to the secretary.
“Paragraph 19. The union shall hold a regular meeting every month and the members will be notified of the time of such meeting by the official organ.
“Paragraph 20. The officers shall be elected for one year and it is their duty to act with the branch organization according to the best conscience in the interests of the union. Should any officer go into business then he must resign his office.
“Paragraph 21. Only such persons can be elected officers who can read and write Hungarian and who are artisans or tillers of the soil of the old country. ’ ’

On the 6th of December, 1903, Maria Kohanczo and her husband, George Kohanczo, became members of this union.. At the time they so became members they each paid .to the union $1.30.

On the 7th day of May, 1904, the said M[aria Kohanczo died, and this suit was brought to recover the amount provided by the laws of the union to be paid to the families of those dying while members of the association.

Defense was made on the ground that Maria Kohanczo at the time of her death was not a member of the association:

First. Because it is said that she made false representations as to her age when she joined.

Second. That she was not a member of a Greek or Roman Catholic Church in good standing at the time she joined, and that she falsely and fraudulently represented that she was such member of the church.

Thirdly. That she was in-arrears for dues to the amount of 30 cents, payable on the 1st day of January, 1904.

As to the first of these grounds, it was abandoned at the trial, as no evidence was introduced tending to support it.

As to the second, evidence was introduced tending to show that the deceased at the time of her death was not accorded the rites, and that she had neglected her obligations as a member of the church of which she had been a member. This evidence, however, is confined to the time of her death, or so near to it that it can not be said to establish that she was not such church member, or to make any such representations she made in that regard false at the time she joined the union.

As to the third, it is claimed by the plaintiff in error that at the time the deceased became a member of the union, the $1.30 paid was made up of $1 -initiation fee and of 30 cents for semiannual dues, paid in advance. The deceased at the time she became a member of the union was more than 45 years of age, and it will be noticed that the amount to be paid as an initiation fee for one above the age of 45 years is not fixed by the by-laws, nor is the date of payment of the semi-annual dues fixed by such by-laws, the provision as to it simply being that 30 cents shall be paid semi-annually by each member; but the secretary testifies that at the time’ the husband of the deceased made application for membership for himself and his wife, he was notified that the $1.30 was all an initiation fee, and that the semi-annual dues would be payable in January and July of each year. It is claimed, too, on the part of the defendant in error, that a custom had been established by which the semi-annual dues became payable on the 1st day^of January and July of each year; but as- the union was organized in August, 1903, and this deceased joined the union in December of the same year, of course no custom could have grown up at "that time for payment in January and July, because the union had not yet been in existence sufficiently long, and at the time of her death but one of the dates on which these semi-annual dues would become payable, as claimed by the secretary, had passed, so that it could hardly be said that any custom had been established, nor does it appear anywhere that the union had authorized the secretary to say that these dues should become payable on the 1st day of January and July, or that they were to be payable in any particular months-. However, as the secretary was the officer to whom the application was made, and as he says he notified the husband that these dues would be payable on the dates specified, the defendant in error is perhaps warranted in the claim that as to this decedent, those were the fixed dates on which payment should have been made.

Among the provisions of the by-laws, it will be noticed that an official organ for the union was established and that the members of the union were required to accept notices published in such official organ. The only action taken by the union looking to the expulsion of the deceased from the association, consists of the following:

On the 30th of April, 1904, a letter was sent to George Kohanczo, the husband, -which reads as follows:

“St. Elizabeth's Roman and Greek Catholic Union,
“Organized July 12, 1903.
“Cleveland, Ohio, April 30, ’04.
“Dear Fellow Member, George Kohanczo:
“You and your wife were reported at the meeting of the union that you joined the union by falsehood. You are not forty-eight years old, but surpassed the 51 years too. Therefore, clear yourself and your wife with birth certificate within eight days. If you fail to do so, then you will be scratched (expelled) by resolution adopted at the meeting; and therefore, you can not claim anything from the union, you have lost all your right.
“Joseph Nameth, Secretary,
“77 Bismark.”

It will be noticed that this letter charges that both the husband and wife -were reported at the meeting of the union as having joined the society by falsehood, but the falsehood applies to the husband alone, no suggestion being made that any misrepresentation was made as to the age of the wife.

On the first day of May, 1904, at a meeting of the union, the minutes show that “Nine members were elected in the union, two were scratched, George Kohanczo and his wife, because he declared in the presence of one controller that he already was older than the by-laws prescribe.”

These minutes were in the Hungarian language and the translator explains that the word “scratched” as used, indicates that these parties were either suspended or expelled, but, as has already been stated there was no evidence tending to show, nor was it claimed on the trial, that this woman was liable to expulsion because of her age, nor is it claimed that because of this resolution she ceased to be a member of the union, but really that she ceased to be because of non-payment of the dues for January, 1904; that this rule requiring payment, was not regarded as so inviolable, that one ceased to be a member simply bebause of the failure to pay at the date, it manifested from the further minutes of the meeting, at the date already named, the language referred to being the following:

“Further the secretary was ordered to warn the members of the union who were in arrears, through the official organ by notice. This was done.”

• The very day on which this resolution was passed the society recognized that one be in arrears for dues and still be a member until some further action was taken.

On the 7th day of April, 1904, notice was published in the official organ reading as follows:

“Such members of the St. Elizabeth’s Union who still had not paid the 25 cents semi-annual dues, which were due in the month of January are warned that they fulfill such obligation by all means until the meeting to be held on the 10th of this month, because, otherwise, they can not claim any benefit at all. ’ ’

As to this notice, it will be observed that the amount specified as payable is 25 cents instead of 30 cents and also that there is here a recognition that one may be in arrears for dues and still be a member. It comes then to this: That either Mrs. Kohanezo was a. member of this union at the time of her death, or that she ceased to be a member .for non-payment of dues; without any action of the union expelling her on that account. The law does not favor forfeitures, and we do not understand that without some action of the union, one who was a member in good standing could cease to be such member without having an opportunity to justify himself or herself, and certainly not without some action taken by the union looking to the severing of the relations between the union and the member. See Grand Lodge v. Brand, 29 Nebraska, 644, and the 3d American and English Ency., pages 1086 and 1087, note 1 of which reads:

“Where a suspension for non-payment'of dues is provided for in the laws of the association and it is also provided that such suspension shall work a forfeiture of benefits, the fact of delinquency alone does not, ipso facto, work a forfeiture; a suspension by formal proceedings is necessary.”

A large number of authorities are cited in support of this proposition.

The charge of the court in this ease is complained of and is subject to the criticism that the court seemed to assume that because the husband acted for the wife in the matter of applying for membership and negotiated the joining to the union, that whatever he did with reference to his own membership applied equally to what he did with reference to his wife’s membership. An example of this is found in these words of the charge :

“So they then claim that testimony has .been offered tending to prove that the husband of Maria Kohanczo was not at the time he applied for membership a Roman or Greek Catholic in good standing; that is, that he was not a practical member of the Greek and Roman Catholic Church. The plaintiff insists that she was. They say that her husband was not in good standing at that time in either church, and testimony has been offered tending to prove that he had not performed his religious duties and that he was not eligible and would not have been received had the truth been known. In other words, that he falsely represented ; that they relied on the representations; he was admitted to the society; they were deceived and injured thereby. ’ ’

It will be noticed by this language that the fact that the husband was not a member of the church or made false representation when becoming a member, might .in some way affect the wife, which of course, could not be true, unless the false representations made were false representations as to the wife. What was said would be applicable if it were a claim based upon the husband’s membership, but this suit was based upon the membership of the wife, and if there is an objection to this, it is because it might mislead the jury to the extent that they think that the wife’s membership depended upon the membership of 'her husband, which would not be true. The judgment in this case is reversed; because the verdict is against the weight of the evidence; a motion for a new trial should have been sustained for that reason.