author: JONES, 0. B., J. Gorman, J.,

text:
    LANDLORD AND TENANT.
    [Hamilton (1st) Court of Appeals,
    May 15, 1916.]
    Jones, Jones and Gorman, JJ.
    William S. Walker v. Herman Bumiller.
    1. Tenant under Written Lease Holding Over Bound for Another Year.
    When a tenant under a written lease for one year holds over after the expiration of his lease, he impliedly holds as a tenant for another year, at the option of the landlord, under the same terms and conditions as in the original lease.
    2. Parol Contract of Tenant in Possession under Lease by Year within Statute of Frauds.
    A parol contract for a new lease from month to month, between landlord and tenant in possession under an existing lease by the year, is within the statute of frauds unless the possession and holding after the expiration of the first lease is distinctly referable to the new contract and not to a continuance under the original lease.
    Error.

      Edward H. Brink and Chas. B. Wilby, for plaintiff in error.

      Dempsey & Nieberding, for defendant in error.
   JONES, 0. B., J.

The question to be determined in this case is the validity of a parol agreement between a landlord and tenant made while in possession under a written lease for one year, which attempts to create a new lease from month to month after the expiration of the original term.

It is admitted that the defendant held over, but he alleges that while in possession under his written lease for a year, he by an oral arrangement with plaintiff agreed to continue after the termination of that lease to hold as a tenant from month to month at the same rental. Such an agreement is within the statute of frauds (Secs. 8620, 8621 G. C.). It is a contract for an interest in or concerning lands and must be in writing to be valid.

A familiar exception to the rule, that an oral letting of land is invalid under the statute of frauds, is where the agreement is carried out by the delivery of possession thereunder, thus taking it out of the statute by part performance.

But it has been clearly held that a parol agreement to take effect at once or in the future, for a lease between a landlord and a tenant in possession under a previous letting is within the statute of frauds and can not be enforced, and evidence will not be admitted in support of such a contract.

The earliest ease in Ohio in which the Supreme Court has spoken on the subject is Armstrong v. Kattenhorn, 11 Ohio 265, a leading ease frequently cited with approval, in which the syllabus is as follows:

“A parol contract for a lease between landlord and tenant in possession, under a prior lease, is within the statute of frauds; unless possession be held solely under, and in performance of the parol contract, the terms of holding, clearly indicating the possession to be under the subsequent parol lease. ’ ’

And in the opinion, the court says:

“But, if possession be relied upon, it must be clearly referable to the contract, and be delivered and held in performance of it.
“Possession must give the contract life, and if they can possibly be separated, the parol agreement perishes -under the operation of the statute.
“Hence, if the possession can be referred to any other source, then the parol contract, which it is claimed to support, even to the wrongful act of the party in possession, or to a different contract, the statute applies.
“ * * * So with a tenant in possession, in case of a parol agreement for different terms of holding, if no acts are performed which clearly show that the possession is continued under the last agreement, it will be referred to the original tenancy, and such parol contract will be void.
“In the case now under consideration, the record shows no act that is not as clearly referable to the possession under the old tenancy, as the parol lease upon which recovery is sought.
“If it be contended that rent was paid under the parol contract, it may be replied, from aught that appears in the record, that the same rent was due on the original tenancy, under which the defendants were in posession.
“The possession of the defendants, then, is not shown, by unequivocal acts, to have been continued or held solely in performance of the parol contract, and must be referred to the prior lease.
“Possession must accompany the contract, in performance of it, in all cases, to avoid the statute.”

In the instant case there was nothing to distinguish the possession of the tenant from a mere continuance — a holding over under the original lease, the rent being the same and no change apparent in the relation of the parties.

In the case of Crawford v. Wick, 18 Ohio St. 190 [98 Am. Dec. 103], the first proposition of the syllabus reads:

“A parol contract for a new or supplemental lease between a landlord and his tenant, in possession under a former and subsisting lease, is within the statute of frauds; and the continued possession of the tenant does not take the parol contract out of the operation of the statute, where the continued possession of the tenant is as well referable to the first lease as to the second pai’ol lease. Armstrong v. Kattenhorn, 11 Ohio 265, followed and approved. ’ ’

In tbe opinion of tbe court in Myers v. Croswell, 45 Ohio St. 543, 547 [15 N. E. Rep. 866], tbe following language is used:

“Whatever objection may be urged against tbe doctrine of part performance of contracts within' the statute of frauds, or be said of its tendency to promote frauds, or of tbe necessity for courts to make a stand against further encroachments on the statute, it is too well settled to be now open to dispute, that certain acts done in the part performance of verbal contracts for tbe sale of lands, may operate to taire them out of the statute, and generally possession of tbe land delivered and received under and in pursuance of tbe contract amounts to such part performance. But it is equally well settled that to have that effect tbe possession must be connected with and in consequence of tbe contract ; it must be in pursuance to its terms and in part execution of them. In other words the possession must pursue and substantiate the contract.
“In Phillips v. Thompson, 1 John Ch. 131, 149, Chancellor Kent says: ‘It is well settled that if a party sets up part performance to take a parol agreement out of the statute, he must show acts unequivocally referring to, and resulting from that agreement, such as the party would not have done unless on account of that very agreement, and with a direct view to its performance. There must be no equivocation or uncertainty in the case.’ ”

And Pomeroy, Contracts Sec. 108, p. 548, quotes as follows:

“A plaintiff can not, in the face of the statute, prove a verbal contract by parol evidence and then show that it has been partly performed. This course of proceeding would be a virtual repeal of the statute. He must first prove acts done by himself or on his behalf which point unmistakably to a contract between himself and the defendant, which can not, in the ordinary course of human conduct be accounted for in any other manner than as having been done in pursuance of a contract, and which would not have been done without an existing contract; and although these acts of part performance can not of themselves indicate all the terms of the agreement sought to be enforced, they must be consistent with it and in conformity with its provisions when these shall have been shown by the subsequent parol evidence. It follows from this invariable rule, that acts which do not unmistakably point to a contract existing between the parties, or which can be reasonably accounted for in some other manner than as having been done in pursuance of a contract do not constitute a part performance sufficient in any case to take it out of the operation of the statute, even though a verbal agreement has actually been made between the parties. ’ ’

And then the rule in Ohio is stated as announced in Armstrong v. Kattenhorn, supra.

In Clark v. Guest, 54 Ohio St. 298 [43 N. E. Rep. 862], which involved the question of an oral extension of time for the removal of standing timber under a previous written contract of sale thereof, the court says on page 305:

“Such verbal extension of time is as clearly within the statute as a verbal extension of a lease, which this court has held to be within the statute. Armstrong v. Kattenhorn, 11 Ohio 265; Crawford v. Wick, 18 Ohio St. 190.”

And on page 306:

“The circuit court found as its conclusion of law upon the facts found, that it would be a fraud upon the defendant in error to revoke such verbal extension of time; and that the case was therefore taken out of the statute of frauds. This is not tenable. The statute was enacted to prevent frauds and perjuries. The law-making power knew that frauds and perjuries would be practiced with or without the statute, but it was thought that less harm would come from enacting and enforcing the statute, than otherwise. The only exceptions to the statute, engrafted therein by judicial interpretation, if not by judicial legislation, that can be justly defended, are cases in which the acts of both parties are such as to imply a contract with substantially the same certainty as would be shown by a written memorandum, as in the ease of a verbal sale of lands followed by a delivery of possession to the purchaser, and valuable permanent improvements made by him with the knowledge of the vendor.
“To say that to refuse to carry out a verbal purchase of standing growing trees is a fraud on part of the owner of the trees, is to disregard the statute, and in effect a repeal thereof. * * * He had no legal right to rely upon the verbal contract, and where there is no right there can be no fraud. If he intended to rely upon the extension of time he should have caused the contract therefor to be reduced to writing. The statute was enacted to protect men in their property rights and it should be enforced unless in eases clearly within some of the well established exceptions. ”

The rule in Ohio as to a tenant holding over is laid down in Baltimore & O. Ry. v. West, 57 Ohio St. 161, the last two clauses of the syllabus being as follows:

“Where, after the expiration of the term, the tenant holds over and pays rent for a part of another year, without any new agreement with the landlord, he becomes a tenant for that year at the same rent, and can not terminate the tenancy before the end of the year without the landlord’s consent.
“The obligation of the tenant to pay the rent for the year, in such ease, is not within the statute of frauds; the holding over being equivalent to a new entry.”

And in the opinion, on page 168, the court says:

“The tenant, by holding over, is regarded as consenting or proposing to enter upon a new term for another year at the same rent and upon the conditions of the prior occupancy, and .the landlord’s acceptance of the proposed tenancy is presumed from his receiving the rent, or other acquiescence. The agreement arises by implication of law from the conduct of the parties after the expiration of the former tenancy; and, in this respect, is essentially different from those agreements made by parties while in possession under an existing lease, for a new lease to commence in the future; as was the case of Armstrong v. Kattenhorn, 11 Ohio 265, and Crawford v. Wick, 18 Ohio St. 190.”

This language is quoted with approval in Cladwell v. Holcomb, 60 Ohio St. 427 [54 N. E. Rep. 473; 71 Am. St. Rep. 724], in which case the law is thus stated in the syllabus:

“When the tenant holds over after the expiration of any year, the landlord has the option to treat him as a tenant for another year, or as a trespasser; and unless there has been an election to treat him as a tenant, possession may be recovered by the landlord in an action of forcible detention, after the service of the three days’ notice required by the statute.
“A parol agreement for a lease to commence in the future, with a person already in possession of the premises as a tenant, is within the statute of frauds. ’ ’

In the case of Strong v. Schmidt, 8 Circ. Dec. 551 (15 R. 233), which involved a question of surrender, the court said in its opinion, pages 553 and 554:

‘ ‘ The testimony clearly shows that the defendant was in possession under a written lease. He refused to sign a new lease for the reason that he was not satisfied with its terms. He wrote letter to the other parties, saying that he would hold from month to month, and stated that orally, perhaps to the agent. The parties themselves, instead of consenting to that, answered that they would not consent. So that we have the terms, so far as any writing is concerned. We have a proposition to hold on different terms, with a refusal on the part of the landlord and under that state of facts the defendant continued in possession. There was no change in possession, nor' did the landlord in any manner or form recognize that there was a holding over under different terms than those of the lease. We see no reason whatever why the statute of frauds does not apply here and we think that all the evidence in regard to the statements made by the defendant as to how he would hold or in what manner was entirely irrelevant and illegal.
“The rule of law is — it is said that th.e presumption of law is, that he holds under the former contract from year to year. The language is varied by different courts in delivering the opinions: by some it is said to be a ‘presumption,’ by some it is said to be an ‘implied contract,’ and by some it is said to be a ‘constructive contract; ’ but no matter what it is called the law clearly is, that where the party has continued in possession after the termination of a year’s lease and the landlord has accepted rent from him, that the lessee holds for another year, and that the same is binding and obligatory upon both parties as it would be if re-executed. The landlord can evade it only at the expiration of the year, nor can the tenant leave possession of the premises. He is likewise bound to pay rent for the year. If he ehooses to leave the premises, his obligation still remains to pay. It is a binding contract. That contract can only be set aside in some manner that has reference to the law of the land. There are two and perhaps three ways in which it can be set aside; a new contract may be made, and there may be a surrender of the premises; but the new contract, in order to be binding, must be either a contract in writing under the statute of frauds, or it must be, if a parol contract, in pursuance of a change of possession, as the Supreme Court has said, which makes a new and binding contract. ’ ’

And in Schneider v. Curran, 10 Circ. Dec. 239 (19 R. 224), the same doctrine was recognized in the syllabus, as follows:

‘ ‘ A parol contract for a lease between landlord and tenant, and the tenant in possession under a prior verbal lease, is within the statute of frauds and void, and the continued possession of a tenant does not alone take such contract out of the operation of the statute; there must be a new possession taken to do this. ’ ’

Notwithstanding the clear and unqualified words of the statute, Secs. 8620, 8621, G. C., and the reported decisions shown in the long line of authorities in this' state, none of which have been in any way questioned, it is now claimed that the settled rule is to be changed because of the case of Moore v. Harter, 67 Ohio St. 250 [65 N. E. Rep. 883], and the unreported case of Corbin v. Hafer, 72 Ohio St. 685, which reversed the decision of the superior court in general term, Hafer v. Corbin, 14 Dec. 674 (6 N. S. 468). The trial judge in the instant, case felt himself bound by this unreported case. In passing on the motion for a new trial, he said-:

‘ ‘ Whatever may have been the law in this state on this question, it certainly was changed by the ruling of the Supreme Court in the case of Corbin v. Hafer, 72 Ohio St. 685. In that case the same' question as that presented in the case at bar was decided. The general term held such agreement void. * * * The Supreme Court reversed this and entered judgment for the defendant. * * *
“Believing myself bound under the rule of stare decisis to follow the Supreme Court the motion for a new trial on this point is overruled. ’ ’

. It is true as shown by the report in Safer v. Corbin, supra, that the question now before this court was involved in Corbin v. Safer. But the Supreme Court did not desire to make the decision of that case a rule of law to control future cases. No opinion was written and the court thus refrained from disturbing the authirity of any of the cases cited above beginning with Armstrong v. Kattenhorn, supra. We have been frequently admonished by the Supreme Court itself that an unreported ease can in no wise be regarded as an authority and, a fortiori, that must be held to prevail where as in this ease to hold otherwise would have the effect of changing decisions that have been repeated time and again by that court for more than seventy years, without having a single line announcing such change or giving any reason for it.

But it is contended that, as the court based its action in Corbin v. Hafer on the authority of Moore v. Harter, supra, this action must be regarded in the same light as a reported decision extending the exception to the general rule announced in that ease. In Moore v. Sorter a landlord had advised his tenant before the expiration of his term that the rent for the succeeding year would be increased $50 if he held over. The tenant did hold over, and the terms and conditions of the original lease were held to be modified as to the rate of rental, in accordance with that notice. The court says in the opinion:

“The tenant’s dissent from the terms proposed by the landlord amounts to nothing unless the latter accepts it, because the presumption is that one holding over, after notice from the landlord that a change of terms would be required, is presumed to do so on the terms proposed by the landlord. Otherwise he would put himself in the wrong and would be liable to be treated as a trespasser. ’ ’

And the court distinguished Armstrong v. Kattenhorn as not pertinent to that ease, because the landlord owned the property and had an absolute right to fix the rent, and the rights of the tenant expired with his lease, unless a new term was created by his holding over, under Baltimore & O. Ry. v. West, 57 Ohio St. 161 [49 N. E. Rep. 344], in which event the new term would be under the increased rent.

A careful reading of Moore v. Harter will show that the question there decided does not apply to Corbin v. Hafer. And the mere reference to it as an authority in the list of unreported cases in Corbin v. Hafer, supra, can not be held to extend that decision so that it will apply. To do so would in effect wipe out the statute of frauds entirely as between a landlord and a tenant in possession. A tenant once in possession could, regardless of the statute, fasten any kind of a lease upon the landlord if he could only secure the necessary witnesses to show a parol contract.

Since the decision of Corbin v. Hafer, at least two decisions have been announced which recognize no change in the established rule: Hopkins v. Carroll, 32 O. C. C. 709 (11 N. S. 605); Richard v. Utter, 37 O. C. C. 143, decided by the judges of the sixth district, Chittenden, J., writing the opinion.

The language of Redesdale, Lord Chancellor, in Lindsay v. Lynch, 2 Seh. & Lef. 4, quoted in the argument of counsel in the report of Armstrong v. Kattenhorn, supra, is especially applicable to the situation here:

‘ ‘ I am not disposed to carry the cases which have been determined on the statute of frauds any further than I am compelled by former decisions. The statute was made for the purpose of preventing perjuries and frauds; and nothing can be more manifest, to any person who has been in the habit of practicing in courts of equity, than that the relaxation of that statute has been a ground of much perjury and much fraud. If the statute had been rigorously observed, the result would, probably, have been, that fewer instances of parol agreements would have occurred. Agreements would, from the necessity of the case, have been reduced to writing; whereas, it is manifest that the decisions on the subject have opened a new door to fraud; and that, under pretense of part execution if possession is had in any way whatever, means are frequently found to put a court of equity in such a situation, that, without departing from its rules, it feels obliged to break through the statute.”

The majority of the court are unwilling because of an unreported case to read into a reported decision sucb an extension of the exception to a general rule as will in effect overrule at least four well considered' decisions of the Supreme Court of acknowledged authority. We can at least know what they decide, and we feel bound to follow them rather than to conjecture that they have been displaced, modified and overruled by an unreported ease.

Indeed this has been distinctly declared to be the proper course in Louden v. Cincinnati, 90 Ohio St. 144 [106 N. E. Rep. 970], in the opinion of the court at pages 157 and 158, where the court practically admitted that the question under discussion had been given a contrary decision in the case of Armstrong v. Cincinnati 32 O. C. C. 714 (12 N. S. 76), which had been affirmed 'without report by the Supreme Court in Armstrong v. Cincinnati, 82 Ohio St. 454. But no weight was given to this unreported decision; after suggesting that the reason for its af-firmance may have been the fact that the weight of evidence was involved, the court say:

“The law of this state in reference to this subject having been declared in the case of Tiffiin v. McCormack, 34 Ohio St. 638, and Bradford Glycerine Co. v. Woolen Manufacturing Co. 60 Ohio St. 560, it would follow that if this court intended to depart from the doctrine announced in these cases it would have reported the ease and overruled these authorities. ’ ’

The doctrine of stare decisis requires that rules of law when clearly announced and established by a court of last resort should not be lightly disregarded and set aside, but should be adhered to and followed. Proper judicial subordination requires that this court should be governed by the written decisions of the Supreme Court,, and it is not at liberty to modify or extend clearly defined doctrines laid down in reported cases on some presumption that they may have been changed by reason of some unreported case. If a decision of the Supreme Court is to be overruled or modified, it must be done in distinct terms by the written decision of that court, and can not be implied from the judgment in an unreported ease.

The salutory effect of the statute of frauds has long been demonstrated, and it should be sustained in full force while it remains a part of our statute law. If it is desired to modify or repeal it, that can be done by tbe general assembly, and judicial legislation should not be invoked to extend the exceptions already engrafted upon it by decisions of any court other than that of last resort.

The judgment of the court of common pleas is therefore reversed and the cause remanded.

Jones, E. H., J., concurs.

Gorman, J.,

dissenting:

I find myself unable to concur in the conclusion reached in this case by my associates, for the following reasons:

The question presented in this case for our consideration is: Can a binding parol agreement be made between landlord and tenant while the tenant is in possession of the premises under a written lease for one year and before the expiration of the term, whereby the term of the holding is changed to a tenancy from month to month?

The defendant occupied the premises belonging to the plaintiff in error under a lease for one year. Defendant in error claims that before the expiration of the year he made a verbal agreement with the plaintiff in error that he might hold from month to month, after the expiration of the year, upon the payment of the same monthly rental until such time as he desired to vacate the premises. Plaintiff in error", who was defendant below, denied that such an agreement was made.

The tenant, defendant in error, vacated the premises after occupying them thirteen months, and at the end of the second year the landlord, the plaintiff in error, brought suit to recover the difference between the amount of the rent which would be due under the lease, and the amount of rent which he received upon a re-letting of the premises. The landlord, "Walker, rented the premises for a part of the year and received $291.67, while the rental under the lease was to have been $440 for eleven months; and the action was to recover the difference — $148.33.

Upon the trial of the case the court admitted evidence of the parol agreement between the landlord and tenant, over the objection of counsel for plaintiff.

The court charged the jury in substance that if they should find that the landlord and tenant had made a parol agreement while the tenant was in possession under the lease, the tenant might after the end of the year continue as a tenant from month to month, and if they further found that the tenant had paid for the entire time that he had occupied the premises, they should return a verdict for the defendant. This charge was excepted to by the plaintiff, and the jury returned a verdict in favor of the defendant. The cause is now here on error.

It is claimed that the court erred in admitting the evidence of the oral agreement between plaintiff and defendant and in charging as above set forth.

In the unreported case of Corbin v. Hafer, supra, the court says:

“Judgment of the general term reversed and that of special term affirmed, on authority of Moore v. Harter, 67 Ohio St. 250.”

The ease of Corbin v. Hafer, 14 Dec. 674 as decided by the general term of the superior court of Cincinnati, Judges Hosea, Ferris and Hoffheimer sitting. The facts int hat case ass hown int hat report disclose a case .identical with the instant case. In the trial of that case in the superior court in special term before Judge Rufus B. Smith, a verdict was returned in favor of the defendant and a judgment entered thereon. Corbin claimed to have made a verbal agreement with Hafer, while he, Corbin, was occupying the premises under a lease from year to year, whereby Hafer agreed that he, Corbin, could after the expiration of the year occupy the premises from month to month. Hafer denied that this agreement was made. Evidence was admitted by the trial court of the conversation between Corbin and Hafer that established the parol agreement for a holding from month to month. A special charge asked by Hafer to the effect that, unless the agreement as to the change of the terms of tenancy was in writing under the statute of frauds the agreement would be null and void, was refused and exception noted. In the general charge the court told the jury that if the agreement was established in parol and the rent was paid for the entire time that the tenant occupied the premises Hafer could not recover against Corbin for the remainder of the year, and an exception was noted. The general term reversed the special term and entered judgment in favor of Hafer for the amount of the rent due for the remainder of the year. These appear to be only errors claimed to exist in this ease, and the Supreme Court having reversed the general term upon the authority of Moore v. Harter, supra, we should look to that case to determine what principle was involved in its decision.

In Moore v. Harter, a tenant was occupying premises under a yearly lease from April 1,1892. and without any further lease continued to occupy the same until April 1, 1895, paying therefor $450 per year. Before the expiration of the last year the landlord notified the tenant that the rent for the next year would be $500 per year instead of $450. The tenant held over without giving any notice, intention or intimation that he was dissatisfied with the increased rent. It was held that by holding over after being notified by the landlord that the rent would be increased from $450 to $500 a year the tenant became liable for the entire yearly rental at the increased rate of $500. The syllabus of the case is as follows:

“When a tenant at the expiration of a written lease, holds over as a tenant from year to year, upon the terms of the original lease, and the landlord notifies the tenant, before the beginning of another year, that if the latter holds over into another year the rent will be increased, and the tenant does so hold over, the terms and conditions of the original lease will be modified in' respect to the rent so as to conform to such notice, but in all other respects they will continue to be applicable to the new tenancy. Armstrong v. Kattenhorn, 11 Ohio 265, distinguished.”

On page 258 of this report the court says:

“It follows that the lessor and lessee may by agreement change the terms of the original tenancy; and if, before the beginning of another year, the landlord notifies the tenant that the rent will be increased and the latter nevertheless holds over into another year, to that extent the terms of the original lease will not apply, but it will be applicable in all other respects. The reason of this is that the tenant must be presumed to have assented to the change. The authorities are numerous and conclusive on this point. ’ ’ Citing several authorities.

On page 254 the court distinguishes the ease of Armstrong v. Kattenhorn, 11 Ohio 265, as follows:

“The doctrine of Armstrong v. Kattenhorn is that if the possession of the tenant ‘can be referred to any other source than the parol contract which it is claimed to support, even to the wrongful act of the party in possession, or to a different contract, the statute applies. ’ The possession in that case was held to be ambiguous and as easily referable to the old léase as to the new one, and hence that the latter was within the statute of frauds and void. Although the statute of frauds declares that leases not in conformity with the statute shall be void, yet that will not prevent a periodical tenancy, subject to the terms of the original lease, from arising by taking possession under the invalid lease and paying rent in accordance therewith.” (Citing numerous authorities.) “And that is precisely that which was done in this case and in all the cases cited above as included in the same class. The continuing in possession, after notice from the landlord to the tenant that he could not do so except under prescribed conditions, is presumed to be a possession under the named conditions. It could not be referable to the former lease without showing that the landlord had consented to withdraw the conditions.”

In the case before us the rule which the trial court laid down was applied on a state of facts, the converse of the facts in the case of Moore v. Harter, supra. In Moore v. Harter, the landlord stated the terms and conditions upon which the tenant could remain, and the tenant remained without making any objection, and it was held that by so doing he had agreed to the landlord’s conditions and acquiesced as it were, and was therefore bound. In the ease before us the tenant made the proposition to the landlord that he would remain as a tenant only from month to month and the landlord agreed to this proposition. The tenant continued in possession after this for one month, and it appears to me that if the rule laid down in Moore v. Harter is applicable to the case of Corbin v. Hafer it must also be applicable to the case under consideration. The tenant and the landlord agreed verbally to a change in the terms of the lease, and the continued possession of the tenant is under the new parol agreement made between the landlord and tenant. It app'ears to me that if a parol agreement between landlord and tenant to increase the rent can be made while a tenant is holding under a written lease, then an agreement between the landlord and tenant to change the tenancy from a yearly to a monthly one can also rest in parol.

I apprehend that there is no special merit in a claim that a landlord only may make an oral proposition to modify the terms of a written lease, before the expiration of the term, which may be orally accepted by the -tenant or accepted by the acquiescence and thus bind the tenant. Upon what rational grounds can it be claimed that a tenant under a written lease for a year may not make an oral proposition to his landlord during the term, to modify its terms as to the rent or duration of the term, which being accepted orally by the landlord will not bind the landlord ? Shall there be a different rule of law applied to a tenant from that applied to a landlord? Can it be material whether the agreement between the landlord and tenant results from the landlord accepting verbally the tenant’s offer, or the tenant verbally accepting the landlord’s oral offer? It appears to me to be a case of tweedle-dum and tweedle-dee. If the holding over-is referable to the oral agreement, then it must stand as the agreement of the parties regardless of whether the proposal came from the landlord or the tenant. The only question is: Did the minds of the parties meet in the oral agreement?

I would not rest my dissenting opinion upon the unreported case of Corbin v. Hafer, but I find that the principles laid down in Moore v. Harter upon the authority of which Corbin v. Hafer was reversed by the Supreme Court, apply to the facts in the instant case, and I come to the conclusion that the court of common pleas in the trial of the case below did not err in admitting the evidence complained of, showing the parol agreement between the landlord and the tenant; nor did the court err in its charge to the jury that they should consider the evidence of the oral agreement.

The jm’y having found against the landlord Walker, I can not say that the verdict is against the weight of the evidence. Nor indeed is it seriously claimed that this court should reverse the lower court upon the weight of the evidence, but only on account of the errors of the trial court in admitting the evidence of the parol agreement to change the' terms of the tenancy, and in refusing to rule out that evidence after it was admitted, and in charging that the jury might consider parol evidence as to the change of the terms of the tenancy.

It appears to me that under Moore v. Harter plaintiff is not required to show that the agreement for a change of the tenancy was in writing under the statute of fraud in order to make binding the agreement between landlord and tenant entered into while the tenant is in possession under a written lease from year to year or for any other term.

Jones, Land. Ten. See. 210, p.250, in discussing this question uses the following language:

"But when the landlord has by his conduct led the tenant to believe that he will not be charged as tenant for the entire year it is axiomatic that the landlord can not change his position and fix an unexpected burden of liability upon the tenancy. So it follows that any new agreement between a landlord and tenant, relative to the continued occupancy of leased premises after the termination of the term precludes the landlord from charging the tenant with liability for a full year’s rent by reason of such continued occupancy.
‘£ This result is not contingent on the fact that the new agreement is valid and capable of enforcement; it rests on an estoppel against the landlord for inducing the tenant to act on his representations. And it matters not that the new contract was invalid under the statute of frauds because not in writing. ’ ’ (Citing Singer Mfg. Co. v. Sayre, 75 Ala. 270; Crommelin v. Theiss, 31 Ala. 412; contra, Parker v. Hollis, 50 Ala. 411.) "The continued payment and receipt of rent after the expiration of the term is not necessarily inconsistent with the existence of a new agreement between the parties.”

Without undertaking further to discuss all the authorities cited by counsel for the parties to this proceeding, I content myself with holding that under the authority of Moore v. Harter, approved in Corbin v. Hafer, supra, a parol agreement may be entered into between landlord and tenant, during the term of a written lease for one year while the tenant is in possession under the lease, which modifies the terms and conditions of the lease, and the statute of frauds can not be invoked to nullify the parol agreement.


source: Caselaw Access Project

author: JONES, E. H., J.

license: Public Domain

text:
    CORPORATIONS — LIMITATIONS.
    [Hamilton (1st) Court of Appeals,
    June 19, 1916.]
    Jones, Jones and Gorman, JJ.
    E. J. Harth v. Charles S. Druggan, Recor.
    1. Eighteen Months Limitation Refers to Secondary Liability of Stockholders not to Actions for Unpaid Subscriptions.
    The provisions of Sec. 8688 G. C., that an action upon the liability of stockholders - can only be brought within eighteen months from the time the debt or obligation became enforcible, refers to secondary liability only, and not to actions for unpaid subscriptions for stock.
    2. Future Estimated Attorney Fees to Recover Stockholders’ Liability not Allowed in Action for Unpaid Subscriptions.
    A court is without power to include in a judgment finding the liability of stockholders an estimated fee for attorneys in a future action to enforce stockholders’ liability or collect unpaid subscriptions to the capital stock. (Dicta)
    Error.

      Oscar W. Kuhn and Ireton & Schoenle, for plaintiff in error.

      S. A. Headley, C. S. Druggan and J. F. Atwood, for defendant in error.
   JONES, E. H., J.

Much of the brief of counsel for plaintiffs in error is devoted to an attempt to show that these proceedings, brought to collect unpaid subscriptions to the capital stock of a corporation,, are barred by Sec. 8688 G-. C. which provides:

“An action upon the liability of stockholders under the twp next preceding sections, can only be brought within eighteen months after the debt or obligation shall become enforcible against stockholders. ’ ’

As pointed out in the brief of defendant in error tbis question has been decided very recently by our Supreme Court in Bauman v. Kiskadden, 93 Ohio St. 000 (61 Bull. 147). The syllabus of the ease is all that is given, but it is so directly in point as to leave nothing for this court to consider upon the question here presented, and we must hold that these actions were brought within time and are not barred.

The common pleas court of Franklin county allowed the receiver $350 for compensation and expenses including attorney’s fees. The assets of the defunct corporation coming into the receiver’s hands amounted to only $75. The court must have considered the costs and expenses of these proceedings not at the time commenced, in fixing the fees. The cost and expenses of bringing the $75 into court was a proper charge against the delinquent stockholders. But we doubt the power of the court to include in the judgment finding the liability of the stockholders an estimated fee for attorneys in a future action to enforce the stockholders’ liability or collect unpaid subscriptions. The allowance made was nearly five times the amount of the assets in the hands of the receiver, so that it is evident that the court considered the services of the attorneys in this proceeding when fixing the allowance.

For a discussion of this question see Buist v. Williams, 81 S. C. 495, 499 [62 S. E. Rep. 859].

But this is aside from the record before us. We have no power to interfere with the judgment of the Franklin county court in the receivership case and for that obvious reason are not asked to do so by the pleadings.

We find no error in the proceedings under review, and the judgments are affirmed.

Jones, O. B. and Gorman, JJ., concur.


author: SHIELDS, J.

text:
    EXTRADITION.
    [Stark (5th) Court of Appeals,
    September Term, 1915.]
    Shields, Powell and Houck, JJ.
    In re A. W. Williams.
    1. Essential Matters for Determination by Governor before Issuing Extradition Warrant.
    The governor of this state upon a demand made in due form by the governor of another state, for the surrender of a fugitive from justice, should first determine whether or not the requisite preliminary stens have been taken, and that legal grounds exist, and that the case falls within the purview of the statutes for issuing of an extradition warrant, and if he so finds it then becomes his duty to issue such warrant.
    2. Ultimate Guilt not Passed on by Court or Governor in Extradition.
    The sheriff, in the instant case, took the fugitive before the judge of the court of common pleas who under Sec. 114 G. C., had jurisdiction to hear and determine the cause, 'and upon proof by him adjudged sufficient ordered the fugitive to be delivered to the agent of the state of Pennsylvania, who was named in said requisition, to be conveyed to the state of Pennsylvania for prosecution on said charge. Held: That neither the governor nor the examining judge passes upon the ultimate guilt of the accused, but upon the question as to whether or not an offense is charged, under the laws of the state demanding extradition, whether or not the identity of the party charged is established, whether or not the party charged is a fugitive from justice, and that the extradition is not for the purpose of enforcing any civil liability against the accused.
    3. Information Substantially Charging Obtaining Money by False Pretenses Sufficient for Extradition.
    The information upon which these proceedings were based charged the offense of obtaining money by false pretenses, and the objection to this charge being technical and the information substantially charging the offense, it is held to have been sufficient.
    4. Presumption that Application for Warrant in Good Faith.
    The presumption is that the governor of Ohio found in issuing the extradition warrant that the application for the requisition was made in good faith for the purpose of having the alleged fugitive answer to the offense charged, and the court finds there is not sufficient evidence to the contrary in the record to overcome this presumption.
    Atnermm & Mills for A. W. Williams.

      Clarence A. Fisher and Walter 8. Ruff, for state of Pennsylvania.
   SHIELDS, J.

It appears that on the first day of July, 1915, an application was made, in due form, to the governor of the state of Pennsylvania, by W. D. Bums, as district attorney of the county of Clarion, in said state, accompanied by a statement in writing by him and by a duly attested copy of an information charging the p-laintiff in error with the crime of obtaining money under false pretenses; that the obtaining of money or property under false pretenses was an offense under the laws of said state, that the offense therein charged was committed in said state, and the plaintiff in error was then in said state, accompanied also with an affidavit of the facts constituting said alleged offense by one claiming to have actual knowledge thereof, and that the plaintiff in error was then a fugitive from justice. Whereupon the governor of the state of Pennsylvania issued a requisition upon the governor of the state of Ohio for the extradition of the plaintiff in error. The governor of the state of Ohio, after an examination of the documentary and other proof submitted to him with said requisition, issued a warrant directed to the sheriff of Stark county, Ohio, commanding him to arrest the plaintiff in error and take him before a judge of the Supreme Court, or of the circuit court, or common pleas court, to be examined on said charge. Having taken him before one of the common pleas judges of said Stark county for said purpose, upon such examination and upon proof by said judge adjudged sufficient, the plaintiff in error was ordered by said judge to be delivered to the agent named in said extradition warrant to be conveyed and surrendered .to the authorities in said county of Clarion, in said state of Pennsylvania, for prosecution on said charge. Thereupon a motion for a suspension of the execution of said order and judgment was made to said judge on behalf of said plaintiff in error to enable him to prosecute error to said judgment to the court of appeals in and for said Stark county, which said motion was allowed, and pending the suspension of said order and judgment' the plaintiff in error filed a petition in error in this court to reverse the said judgment, and was admitted to bail.

The principal errors relied on are:

1. That the alleged information does not charge a crime under the laws of the state of Pennsylvania.

2. Assuming that it does charge said crime, the evidence shows that the ulterior purpose of this extradition proceeding is not to prosecute plaintiff in error for a violation of any offense committed against the laws of said state, but to compel the payment of an alleged civil liability.

In this state the statutes regulating extradition proceedings are plain and admit of no necessity for construction. The governor of the state upon a demand made, in due form, for the surrender of a fugitive from justice, first determines whether or not the requisite preliminary steps have been taken, that legal grounds exist and that the case falls within the purview of the statutes for the issuing of an extradition warrant, and if he so finds, it then becomes his duty to issue such warrant, Work v. Corrington, 34 Ohio St. 64 [32 Am. Rep. 345], all of which appears to have been done in this ease. After apprehending and arresting the plaintiff in error, it further appears that the sheriff of Stark county took the plaintiff in error before one of the judges of the court of common pleas of said county, who under the statute had jurisdiction to hear and determine the same, and who upon proof by him adjudged sufficient, ordered and adjudged that he be delivered to the agent named in said requisition, to be conveyed to the state of Pennsylvania for prosecution on said charge.

It is contended that the information upon which the right to extradite the plaintiff in error is based does not charge an offense, and therefore the governor was without jurisdiction to issue said warrant, and that the judge hearing said charge was likewise without jurisdiction to order the plaintiff in error to be extradited. As we construe the statütes regulating extradition proceedings, neither the governor nor the examining judge passes upon the ultimate guilt of the accused, but, among other things, passes upon the question as to whether or not an offense is charged under the laws of the state demanding extradition, whether or not the identity of the party charged is established, whether or not the party charged is a fugitive from justice, and •that the extradition of the plaintiff in error is not for the purpose of enforcing any civil liability against him, that is, that the criminal machinery of the state shall not be invoked and employed to lay a foundation for or to work out any civil remedy against the party charged. Speaking for the court in the case of Wilcox v. Nolze, 34 Ohio St. 520, Judge Okey says:

“The governor of a state, in issuing his warrant of extradition of a fugitive from justice, acts in an executive, and not in a judicial capacity. He is not permitted to try the question whether the accused is guilty or not guilty; he is not to regard a departure from the prescribed forms for making the application, or as to the manner of charging the crime, in any matter not of the substance, and he is not to be controlled by the question whether the offense is or is not a crime in bis own state, the inquiry being whether the act is punishable as a crime in the demanding state. Nor have the courts larger powers in any of these respects than the governor.”

In Spear, Law of Extradition referring to the provisions in the several extradition treaties of the United States, it is observed that the offense charged in the demand made for the fugitive from justice shall be proved by such evidence,

“as according to the laws of the place where the fugitive or person charged shall be found, would justify his apprehension and commitment for trial, if the offense had there been committed. The delivering government, and not the one making the demand, is by the terms of the treaty in regard to evidence the final judge as to the propriety of the demand, and also as to the sufficiency of the evidence in its support. It applies its own rule of evidence to the case, and withholds or grants the surrender under that rule.”

While the charge in said information may be a little lame in some unimportant particulars, and perhaps is, still we think the objection made is technical and that it charges the offense of obtaining money by false pretenses. In Jackson v. Archibald, 5 Circ. Dec. 533 (12 R. 155), it is held that:

“If a felony is substantially charged in the indictment attached to the requisition for the extradition of a fugitive from justice, the fact that it is inartistically drafted, or that there is some technical defect in the form of the indictment, ought not to prevail to defeat extradition.”

We are next inclined to disturb the judgment below on. the ground urged.

It is contended on behalf of the plaintiff in error that the real purpose of this extradition proceeding is not to have his return ordered to the demanding state for trial on the offense laid in the requisition, but for the purpose of working out a civil remedy against him, and it is contended that this is manifest from the evidence taken upon the hearing hereinbefore referred to. If such contention was well founded, the court would be unwilling to lend its aid in the working out of any such purpose. Section 110 Gr. C., provides that:

‘ ‘ The demand or application must be accompanied by sworn evidence that the party charged is a fugitive from justice, and that the demand is made in good faith for the punishment of crime and not for the purpose of the collection of debt or pecuniary mulct or of removing the alleged fugitive to a foreign jurisdiction to serve him with civil process, and by a duly attested copy of an indictment or an information, or a duly attested copy of a complaint made before a court or magistrate authorized to take it and accompanied with an affidavit or affidavits to the facts constituting the offense charged by persons having actual knowledge thereof.”

It is apparent from the language of the foregoing section that the application for a requisition for a fugitive from justice must be founded on good faith for the sole purpose of having htm answer to the identical offense charged and not for any other purpose. The presumption is that the governor of Ohio so found before issuing the extradition warrant, but it is contended that the evidence taken before said examining judge shows otherwise. We have carefully read the evidence taken on said hearing and find the prosecuting witness testified that after he failed to recover back money paid for certain shares of stock, he instituted this criminal prosecution. Granting this, does it follow by any principle of sound reasoning that the plaintiff in error is sought to be extradited for any other than the purpose of being prosecuted for this alleged offense in the absence of any proof to the contrary? It does not so impress the court, ■and it follows that the second ground of error alleged is not sustained.

Besides the errors alleged and already specifically referred to herein, said petition in error contains other errors alleged, all of which we have considered, and we find no such prejudicial error in the record for which the judgment of the court below should be reversed.

The view we have taken of this ease renders it unnecessary to pass upon the motion submitted on behalf of W. S. Smathers, the sheriff of said Clarion county, and the duly appointed agent of the state of Pennsylvania for the purpose named in said requisition, in which motion it is contended that the proceedings herein are in violation of certain provisions of the constitutions' of the United States and of the state of Ohio.

The judgment of the court of common pleas will therefore be affirmed, and said cause is remanded for execution. Exceptions noted.

Powell and Houck, JJ., concur.


text:
    COURTS — EXECUTORS AND ADMINISTRATORS.
    [Hamilton (1st) Court of Appeals,
    June 12, 1916.]
    Jones, Jones and Gorman, JJ.
    P. A. Keck, Exr. v. Harry Bahlke.
    Municipal Court Jurisdiction to Enforce Claim for Maintenance of Decedent.
    The municipal court of Cincinnati has jurisdiction of an action to enforce a claim against an executor for maintenance of the decedent.
    Error.

      L. D. Oliver and W. M. Beinhart, for plaintiff in error.

      M. Muller, for defendant in error.
   JONES, E. H., J.

Tbe plaintiff in error seeks a reversal of the judgment of the common pleas court affirming the municipal court of Cincinnati. In the municipal court Bahlke recovered a judgment against Keck executor for board and lodging furnished decedent who was the mother of Mrs. Bahlke. The amended petition alleges an express contract providing for compensation at the rate of two dollars per week.

There was evidence of two competent witnesses to the effect that when the old lady came to live with Mr. and Mrs. Bahlke she agreed to pay Bahlke two dollars per week. This evidence was uneontroverted. Some evidence was received as to another contract providing for the payment of five dollars per month for lodging. This evidence related to conversations between witnesses and decedent in the absence of Bahlke and was clearly inadmissible as was much of the evidence offered and received on behalf of defendant. But considering all the evidence in the record we can not say that the judgment is not supported by sufficient evidence.

The remaining' question is one of jurisdiction. Plaintiff in error attacks the jurisdiction of the municipal court in this kind of an action. The question was not raised until this court was reached and it is claimed the objection was thus waived and that complainant is now estopped. We are inclined to the opinion that this point is not well taken but do not deem it necessary, to decide the question.

The municipal court by the statute creating it has jurisdiction to try and determine this kind of an action. The plaintiff in his petition below asked not only that his claim be allowed, but also for judgment against the defendant executor. The law provides (103 O. L. 280, 281):

Section 6. “The municipal court shall have the same jurisdiction in criminal matters and prosecutions for misdemeanors or violations of ordinances as heretofore had by the police court of Cincinnati, and in addition thereto shall have ordinary civil jurisdiction within the limits of said city of Cincinnati in the following cases: * * *

“2. In all actions and proceedings for the recovery of money or personal property of which, the court of common pleas has, or may be given jurisdiction, when the amount claimed by any party, or the alleged value of the personal property sought to be recovered, does not exceed $600. * ■* *
“3. All actions on contracts express or implied, when the amount claimed by the plaintiff is exclusive of all costs, does not exceed $600. ’ ’ * * #

These provisions are not affected by amendment.

It was held in Kennedy v. Thompson, 2 Circ. Dec. 254 (3 R. 446), that a suit for the allowance of a claim against an as-signee where no money judgment was asked, was a civil action of which the court of common pleas had original jurisdiction.

The case at bar was brought under authority of Sec. 10722 G. C., which provides as follows:

“If a claim against the estate of a deceased person be exhibited to the executor or administrator, before the estate is represented insolvent, and be disputed or rejected by him, and has not been referred within six months after such dispute or rejection, if the debt, or any part of it be then due, or within six months after some part becomes due, the claimant must commence a suit for the recovery thereof, or be forever barred from maintaining an action thereon. No action shall be maintained thereon after such period, by a person deriving title thereto from such claimant.”

Section 10725 G C., recognizes this kind of an action as one for money, in other words, a civil action.

It seems clear, therefore, that the municipal court had jurisdiction to try and determine this ease, and there being no error, the judgment is affirmed.

Jones, O, B, and Gorman, JJ., concur,


author: SAYRE, J.

text:
    ACTIONS — CONTRACTS—ELECTION.
    [Hamilton (1st) Court of Appeals,
    March 22, 1916.]
    Sayre, Merriman and Walters, JJ.
    (Judges of the 4th district sitting by designation.)
    Louis E. Bedinger v. Elmer Stevie.
    1. Party Obtaining Judgment on Contract cannot Deny Binding Effect thereof.
    In an action upon a contract, the party who defends the contract and obtains judgment thereunder cannot thereafter say that the contract is not binding on him because the other party failed to fulfill his part in some minor respect.
    2. Party Electing Remedy to which He was not Entitled not Precluded from Resorting to Proper Remedy.
    An election of remedies presupposes the existence of more than one remedy, and where it developes that as a matter of fact the plaintiff was mistaken in the belief that he had two remedies, his attempt to avail himself of one to which he was not entitled does not preclude him from resort to the remedy which the law gives him.
    [Syllabus by the court.]
    Error.

      Dolle, Taylor & O’Donnell, for plaintiff in error.

      Gobi, Howard & Bailey, for defendant in error.
   SAYRE, J.

The suit in replevin was brought on the theory that the contract between the parties was at an end and that the automobile was the property of Stevie. The result of the suit in the court of common pleas decided the question of the ownership of the automobile in favor of Stevie, and because of his election to take the judgment in place of the automobile, that judgment stands in its place and this case must be considered as if Bedinger now had the automobile as provided in the original contract. Besides, Bedinger can not now complain of Stevie’s failure to supply the accessories, because when suit was brought against him for the automobile he stood by the contract against Stevie’s assault upon it, and succeeded in the action, upon the theory that the contract was in force and binding upon both parties. He can not now say that the contract is not binding upon him because Stevie has failed in some minor respect to fulfill his part of the contract.

Counsel for plaintiff in error lay special stress upon the contention that Stevie, having elected to treat the contract as at an end when he brought the suit in replevin, can not now, upon the theory that he has fulfilled his contract, maintain this action. The argument is, that Stevie’s theory, when he brought the suit in replevin, was that the contract was an executory one, that he had performed in full, that Bedinger had not performed at all, and therefore he had a right to treat the contract as at an end, and that there were two courses open to him; either to sue upon the contract for damages for the breach, or to treat the contract as rescinded and recover back his property; and further, that having elected to treat the contract as at an end and having sued to recover the automobile, he can not now sue upon the contract.

Counsel cite in support of their contention the case of Morris v. Rexford, 18 N. Y. 552, and many other cases, all of which we have examined, but we refer especially to Morris v. Bexford, supra, because the facts in that case are simple and for a further reason which will be referred to later. In that case there was evidence of a sale of two boat loads of oats and that the sale was for cash, that the vendee took possession but on his failure to make payment the vendor brought suit in replevin and got possession of the oats. The court held that this was a disaffirmance of the sale and evidence in bar of a subsequent suit for the purchase money. Now it is clear that if the sale of the goods was for cash and the vendee did not make immediate payment and he was in possession, then two courses were open to the vendor; either he could elect to treat the transaction as a valid sale and the title in the vendee and sue for the purchase money, or he could disaffirm the sale and elect to recover the possession of the property by replevin. But suppose he elected to disaffirm the contract and bring suit in replevin and it should appear on the trial that there was not to be a cash payment and the title had passed to the vendee, would the judgment in that case be a bar to a suit for the purchase money? How is the plaintiff to know when he has two courses open to him ? If the facts are beyond dispute then he would know, but this is infrequently the case in a lawsuit. Must he -elect at his peril? Courts ought to hesitate a long time before putting the stamp of approval on such rule as that. It would seem that when the plaintiff brings a suit, on the theory that it is the proper one, and he fails in the litigation because he was not pursuing the proper remedy or course, then such litigation forever establishes the fact that he did not have two courses open to him, but only one. When the vendor, above referred to brought his suit in replevin, if it turned out on the trial that the payment was not to be cash, then he never had two courses open to him and there never was any occasion for an election. Attention is called to the following language at the close of the opinion in Morris v. Rexford, supra:

“If it should appear on another trial that no such right of election existed, then the replevin suits will have no effect at all upon the present controversy, and the plaintiff will be entitled to recover provided the jury shall again find the defendant was the purchaser. * * * What effect a final .recovery in the present suit may have upon the replevin need not now be considered, further than to. observe that such a recovery will necessarily determine that the prior actions of replevin are not maintainable.”

This language is referred to in the ease of Barnsdall v. Waltemeyer, 142 Fed. Rep. 415, 420, [73 C. C. A. 515]. In this last named case Waltemeyer brought suit to rescind the agreement for the fraud of Barnsdall, and failed. Later he brought suit to recover $10,000 on the contract which he sought to set aside. Judge Sanborn says, p. 421, referring to the former suit:

“This was an adjudication of every issue presented in the equity suit, and, among others was a conclusive affirmation of the proposition that the plaintiff had no right to rescind, and hence no choice of remedies.”

' So, in the ease under consideration, when Stevie failed in his replevin suit it was thereby finally adjudicated that he had no right to treat the contract as at an end, and that originally he did not have two courses open to him and could not make any election. This conclusion is supported byAgar v. Winslow, 123 Cal. 537 [56 Pac Rep. 422; 69 Am. St. Rep. 84]; Capital City Bank v. Hilson, 64 Fla. 206 [60 So. Rep. 189]; Hartwig v. Insurance Co. 167 Mo. App. 128 [151 S. W. Rep. 477]; State v. Bank, 61 Neb. 22 [84 N. W. Rep. 406]; Corbett v. Railway, 219 Mass. 351 [307 N. E. Rep. 60]; Rowell v. Smith, 123 Wis. 510 [102 N. W. Rep. 1].

The opinion in State v. Bank, supra, treating of the doctrine of election, p. 407, contains the following language:

“One is not precluded from resorting to a remedy which the law gives him because he has attempted to avail himself of one to which he was not entitled. It is not enough that he supposes he has two remedies and that he acts upon that supposition. He must have them. ’ ’

The third paragraph of the syllabus of Hartwig v. Insurance Co. supra, reads as follows:

“An election of remedies presuppose,1? the existence of more than one remedy at the time the election is made; and where one believes he has a remedy when he has not, the rule of election of remedies does not apply, for there is a difference between an election of remedies and a mistake of remedies.”

See list of eases cited on page 478 of this opinion.

Counsel on both sides seem to think that this ease should end in this court, and we agree with them in that respect.

The action of the trial court was unusually drastic, but on the whole we are convinced that the directed verdict was substantial justice; and the judgment of the court of common pleas is hereby affirmed.

Merriman and Walters, JJ., concur.


author: HOUCK, J.

text:
    MORTGAGES.
    [Stark (5th) Court of Appeals,
    January Term, 1916.]
    Shields, Powell and Houck, JJ.
    Daniel Mossop v. J. W. Bidwell et al.
    Restoration of Lien of Mortgage Transferred as Collateral and Inadvertently Released by Transferee on Mortgage Record.
    Where the transfer of a mortgage, which is being used as collateral security, is not absolute on its face, but is of such a character as to clearly show it is a limited transfer, sufficient notice is afforded to one examining the title to the premises described in the mortgage that the transferee is not the absolute owner and has no right to release it of record, and a notation on the mortgage record, placed there by the mortgagee and inadvertently made in the form of a full release, should be stricken therefrom and the precedence of the lien originally attaching to such mortgage fully restored.
    [Syllabus by the court.]

      Amerman & Mills, for plaintiff.

      G. C. Upham, and Floyd & Yutzey, for defendants.
   HOUCK, J.

This cause is here on appeal from the common pleas court of this county. The plaintiff claims in his amended petition:

That J. W. Bidwell and his wife, Ida Bidwell, are indebted to him in a sum amounting to about $2,150 with interest, due to him on a mortgage note of $3,900, the said note and mortgage bearing the date of September 1, 1909; that said mortgage was duly filed for record in the recorder’s office of Stark county, Ohio, on September 3, 1909, and that said mortgage is the first and best lien on the real estate described therein. That on November 22, 1910, he assigned said mortgage as per the terms of a written contract as collateral security to the Stark-Tusearawas Breweries Company, a corporation; that afterwards, on July 19, 1912, he paid and fully discharged all his indebtedness to said Breweries Companies, and while said mortgage was in full force and effect as between him and the mortgagees, the said Breweries Company, by mistake on its part and without the knowledge of plaintiff, placed a notation on the mortgage record of said mortgage in the recorder’s office of Stark county. Ohio, which he claims was only intended as a release of said assignment of said Mortgage as collateral security to said Breweries Company, but by inadvertence and unintentionally the said Breweries Company placed the usual notation of a full release thereon. Plaintiff further asks that certain mortgages on said premises, one of $835 bearing date of May 14, 1912, and one for $1,801 bearing date of September 30, 1913, held by the superintendent of state banks of Ohio be declared inferior and subsequent to his said mortgage lien, and in fact prays that they be canceled and held for naught.

The defendant, the superintendent of banks of the state of Ohio, by answer denies all of the material allegations in the amended petition of plaintiff, and especially avers that by reason of the notation made on the margin of the record in said mortgage record containing the recording of said plaintiff’s mortgage by the said Breweries Company that the same was released of record, and that by reason thereof the mortgages heretofore mentioned of said superintendent of banks of the state of Ohio are the first and best liens on the real estate described therein, and further that the said pretended lien of plaintiff on his alleged mortgage is and has no force and effect in law.

The only issue in this case, as We view it, is as to the legal effect of the transfer and notation thereon of the Daniel Mossop mortgage, in the light of the facts as shown by the evidence and the law applicable thereto, the notation on the mortgage record being as follows:

“Canton, Ohio, Nov. 22, 1910.
“For a good and valuable consideration I hereby sell, assign, convey and transfer all of my right, title and interest to the within note and mortgage to the Stark-Tuscarawas Breweries Company, a corporation, per the terms and conditions of a contract of even date herewith, by and between the parties hereto.
‘ ‘ Daniel Mossop. ’ ’
‘ ‘ Copied from original mortgage Nov. 22, 1910.
“M. E. McFarren, Recorder, by G-.”
Canton, Ohio, July. 19, 1912.
“This is to certify that the conditions of this mortgage have been satisfied.
“The Start-Tuscarawas Breweries C’o.
“By John F. Weiss, Secy. & Treas.”
“W. E. McFarren, Recorder. Copied from original mortgage July 9, ’12.”

From an examination of the language contained in the above transfer it will readily be seen that it is a conditional or limited transfer, and is not absolute and entire. In other words, the transfer is in extent and scope limited (using the language there) “per the terms and conditions of a certain contract of even date herewith by and between the parties hereto” (referring to the plaintiff and the Breweries Company). The only right the Breweries Company had in and to the mortgage was that given to it by the transfer, and when it attempted to release it, whether inadvertently or otherwise, it did so without any authority in fact or in law as between the rights of the mortgagors and mortgagee. We think the language in the transfer is of such a character and nature, and not being absolute on its face, but being a limited transfer, which is clearly patent by the language contained therein, is sufficient notice to persons examining the title of the premises described in said mortgage to know that the transferee of same is not the absolute owner thereof, and has no right to release it of record. The evidence in this case clearly shows, and in fact it is undisputed that the representative and agent of the superintendent of state banks who examined this title made no inquiry as to any contract, and made no examination as to whether or not the same was of record, although at this time the contract referred to in said transfer was of record and could have been found in Yol. 482, page 153, of the Mortgage Records of Stark county, Ohio. An examination of the contract would have disclosed the fact that the Breweries Company was not the owner of the mortgage in question, and was without authority to release the same.

We think it is a well settled principle of law that whenever a party has information or knowledge of certain extraneous facts which, of themselves do not amount to nor tend to show actual notice, but which are sufficient to put a reasonably prudent man upon inquiry respecting a conflicting interest, claim or right, and the circumstances are such that the inquiry if made and followed up with reasonable care and diligence would lead to a discovery of the truth, and a knowledge of the interest, claim or right which really exists: the party is absolutely charged with a constructive notice of such interest, claim or right ,and the presumption of knowledge is then conclusive.

In view of what we have already said we think that the law and equities are in favor of the plaintiff, and that he is entitled to the relief prayed for in his petition, and that said notation on the mortgage record, placed there by the said Breweries Company, should be stricken therefrom and held for naught, and that judgment be entered in favor of the plaintiff on his note, with interest, and said real estate described in the amended petition be sold, and the proceeds first applied to the judgment of plaintiff.

Judgment and decree accordingly.

Shields and Powell, JJ., concur.


author: GORMAN, J.

text:
    BASTARDS.
    [Hamilton (1st) Court of Appeals,
    March 27, 1916.]
    Jones, Jones and Gorman, JJ.
    Joseph Scheve v. State ex rel Derie.
    Consent by Reputed Father of Bastard to Pay Weekly Fixed Sum for Support Instead of Lump Sum.
    Under the provisions of Sec. 12123 G. C. the reputed father of a bastard child should be adjudged to pay a lump sum, which may be made payable in installments, but where by silence and otherwise he consents to an order for payment of a fixed amount weekly, with the privilege to the parties to apply at any time for a modification of the order, he will not be heard to complain by a reviewing court.
    Error.

      Dempsey & Neiberding, for plaintiff in error.

      Charles F. Hornberger and Harry B. Weber, for defendants in error.
   GORMAN, J.

This canse was a second time submitted to this court under an application for a rehearing.

On the original submission this court affirmed the judgment of the court of common pleas, and the court still and now adheres to its former decision.

It appears from the meager record before us that the plaintiff in error was adjudged the reputed father of a bastard child, in the common pleas court, and thereupon the court adjudged him to stand charged with the maintenance of said child in the sum of five dollars per week until the further order of the court; and in default of such payment that he stand committed to the county jail of Hamilton county, Ohio. The judgment further provided that upon the birth of said child the said amount may be modified or increased or a lump sum decreed to be paid the mother, Josephine Derie, in full satisfaction. This entry was made on March 18, 1914.

On May 6, 1914, Sehreve, defendant below, moved the court to modify the said judgment and reduce the amount ordered to be paid to said Josephine Derie.

On July 1, 1914, the court made this entry:

“By consent of parties the motion to lessen the weekly payments came on for hearing, and it is ordered and decreed that the defendant pay to plaintiff a weekly sum of four dollars per week instead of five dollars as decreed in the temporary judgment hereinbefore given.
“It is also ordered and decreed that the parties may at any time apply for a lessening or addition to the sum herein ordered. ’ ’

We are of the opinion that under the provisions of Sec. 12123 G-. C., the court should have adjudged the reputed father to pay a lump sum, which might have been made payable in installments. But in view of the language above set out we find that Scheve consented to this judgment against him, and not that he merely; consented to the hearing of the motion as claimed by his counsel. This belief is strengthened when we note that no exception or objection was made to the judgment entry, and that it was more favorable to him than was the judgment entry of March 18, 1914, to which he neither excepted nor objected.

Having consented to this last judgment we see no good reason why this court should now be called upon to reverse a judgment favorable to him and to which his consent was given.

Furthermore, it appears from the entry to which error is prosecuted that the parties were accorded the right to apply to the court at any time, to have this anomalous judgment modified by increasing or diminishing the sum ordered paid.

For these reasons the judgment is affirmed.

Jones, E. H. and Jones, O. B., JJ., concur.


author: JONES, O. B., J.

text:
    BONDS — MUNICIPAL CORPORATIONS — PUBLICATION.
    [Hamilton (1st) Court of Appeals,
    April 24, 1916.]
    Jones, Jones and Gorman, JJ.

       Cincinnati (City) ex rel. v. Geoege Puchta, et al.
    1. Validity of Municipal Bonds not Affected by Failure to Publish Notice of Election for Statutory Period.
    Failure of election officials to publish., for the full thirty days required by law, notice that at an approaching election the question of authorizing an issue of municipal bonds will be submitted, does not render the election invalid as to said bonds,'' where the election was held in other respects in accordance with law and there is abundant evidence that knowledge of an intention to submit said question was brought home to the great body of the electors.
    2. Bond Issue on Majority Less than Two-thirds Valid Only within Two and One-half per cent Restriction.
    Where a bond issue is authorized by a majority but not by a two-thirds vote, Sec. 3952 limiting the issue to two and one-half per cent of the total value of the city property as listed for taxation is applicable, and the authorization is valid only within the limits of the two and one-half per cent restriction.
    Appeal. ■

      • Chas. Groom, city solicitor, for plaintiff. ‘

      Saul Zielonka, Assist, city solicitor, and John E. Bruce, for defendants.

      Affirmed, no op., Cincinnati v. Puchta, 94 O. S. 000.

   JONES, O. B., J.

This is an action brought by the city of Cincinnati by its city solicitor against the mayor and auditor of said city to enjoin the issue and sale of $250,000 bonds for parks, playgrounds, boulevards and parkway purposes.

The case was heard upon appeal on the petition,' an amendment to the petition, the answer of defendants, and upon the evidence.

The board of park commissioners of the city of Cincinnati, on April 15, 1915, declared by resolution that.it was necessary to issue, for the purpose of carrying into effect the powers conferred upon it by law, $1,250,000 of bonds of the city of Cincinnati, and transmitted said resolution to the city council. More than ninety days elapsed after said resolution was received by it without the council having passed the necessary legislation for the issuance of such bonds.

On August 19, 1915, the board of park commissioners filed a resolution and request with the board of deputy state supervisors and inspectors of elections of Hamilton county, Ohio, requesting said board to submit the question of the issuance of such bonds to the qualified electors of the city of Cincinnati in the manner provided by law for voting on such questions, at the next general election to be held on November 2, 1915.

Said board of deputy state supervisors and inspectors of elections caused the following notice:

‘ ‘ Election Notice. — Notice is hereby given to the qualified electors of the city of Cincinnati that at the general election to be held in said city on Tuesday, the second day of November, 1915, the question of issuing bonds, by resolution of the board of park commissioners, will be submitted as follows:
“ ‘Shall the city of Cincinnati issue bonds in the sum of $1,250,000 for parks, playgrounds, boulevards and parkways?’ ” to be published in the Cincinnati daily Times-Star, a newspaper printed in that city, once a week for four consecutive weeks prior to said election, said publication commencing on October 7,1915.

The election was so held on November 2, 1915. The total number of registered electors entitled to vote at such election was 101,163; the total number of electors voting at said election was 96,282; and the total number of votes cast for and against the issuing of said park bonds was 81,064. Forty-seven thousand two hundred and ninety-four electors voted for, and 33,770 voted against the issue of said park bonds, the majority in favor of such issue being 13,524 votes.

It appears from the evidence that in addition to the legal notice published in the Cincinnati daily Times-Star above referred to, much notoriety was given to the fact that the question of voting upon the issue of park bonds would be submitted at the general election to be held November 2, 1915, by numerous publications in all of the newspapers of the city and by many public meetings at which the subject was presented by different speakers, and that the public generally were fully informed upon the fact that such special election on this question would be held.

In accordance with said proceedings and election, on November 23, 1915, the council of the city of Cincinnati duly passed an ordinance providing for the issue of bonds of said city in the sum of $1,250,000 for park purposes, which ordinance was duly approved by the mayor and published according to law.

On December 3, 1915, the city auditor, in accordance with law, offered said park bonds to the trustees of the sinking fund of the city of Cincinnati, and said sinking fund trustees then accepted $250,000 of said issue of bonds and rejected the remaining $1,000,000 of said bonds. Said latter amount of bonds were then offered in accordance with law to the board of commissioners of the sinking fund of the school district of the city of Cincinnati, and afterwards to the industrial commission of Ohio, both of which bodies rejected the said bonds. Thereupon the city auditor duly advertised the sale of $250,000 of said bonds according to law. Bids were received for same March 22, 1916, and an award was made to the highest bidders for the sum of $268,175. This action was then brought to prevent the consummation of the sale under said award.

On the same day bids were received by the city auditor for the sale of $200,000 bonds of the city of Cincinnati to be issued under an ordinance of council passed January 18, 1916, to provide funds to pay the costs and expense of» improving and repairing streets, viaducts, bridges and culverts in said city. The original issue provided by said ordinance was $280,000, of which $80,000 was taken by the sinking fund commission on February 3, 1916.

A statement of the bonds already issued by the city and its net indebtedness thereunder was furnished in evidence, as was also a statement of the total value of all the property of such city as listed and assessed for taxation, from which statements it is agreed that if both sets of bonds are issued under the awards made by the city auditor on March 22, 1916, as above recited, the net indebtedness of the city, including such bonds, would then be in excess of two and one-half per cent of the total value of its property, but not in excess of 5 per cent of such value as provided in Sees. 3941, 3948 and 3952, G-. C.

The questions submitted for decision ¿re:

1. Does the failure to advertise the legal notice of the special election strictly in compliance with Sec. 3946 G. C., invalidate that election and the bond issue made thereunder.

2. Where the city council fails to issue bonds in accordance with the request of the board of park commissioners, and an election is had thereon by virtue of Sec. 4064 G-. C., does a majority vote in favor of the bonds obviate the restrictions imposed by Secs. 3941 and 3952 G. C. ? In other words, is the limitation of a bond issue authorized by a majority vote in such an election two and one-half per cent, or is it subject only to the limitation of 5 per cent under the terms of Secs. 3948 and 3952 G. C. ?

3. If such issue is in excess of the limitation allowed should the court enjoin the entire sale, or only so much of said bonds as would make the net indebtedness exceed the limitation imposed bylaw?

The requirements of Sec. 3946 G. C., in a municipality where a newspaper is printed, are that thirty days’ notice of an election for the issue of bonds shall be given in one or more newspapers, onee a week for four consecutive weeks prior to such election. In this case the legal notice published by the board of deputy state supervisors and inspectors of elections was printed in a newspaper once a week for four consecutive weeks, but the first publication was only twenty-six days prior to the election instead of thirty days as required by law.

The purpose of such a provision of law is to fully advise the electorate of the submission of the proposition to be voted on, that a full expression may be had of the will of the people upon that question. So far as the duty of the election board is concerned, all of the details of the law should- be strictly observed, and as to them the provisions found in Sec. 3946 G. C., must be considered mandatory; but where the objects to be accomplished have been fully met, and general notice of such approaching election has been had'by the electors, and a full vote has been east thereon evidencing such knowledge, the failure of the election officers to comply fully with the requirements of law must he deemed, so far as the election itself is concerned, an irregularity which will not invalidate it.

In this case it was shown that each elector was given a ballot upon the question of issuing these bonds, and considering the well known tendency of many voters to ignore questions of this character and to fail to vote thereon either at general or special elections, a large vote was cast upon the question, compared with the total vote. This in itself shows that the electorate were well informed as to the fact of such special election, and were not in any way prejudiced by the misfeasance of the election officers in publishing the legal notice for a period of twenty-six days instead of for the full period of thirty days. The election, therefore, must be held valid.

In Foster v. Scarff, 15 Ohio St. 532, the court says at page 537:

“We have no doubt that where an election is held in other respects as prescribed by law, and notice in fact of the election is brought home to the great body of the electors, though derived through means other than the proclamation which the law prescribes, such election would be valid. ’ ’

To the same effect are: Chagrin Falls, In re, 91 Ohio St. 308, 312; Fike v. State, 25 O. C. C. 554 (4 N. S. 81); Harpster v. Brower, 3 Circ. Dec. 194 (5 R. 395); McCrary, Elections (4 ed.), Sec. 179; Town of Grove v. Haskell, 24 Okla. 707 [104 Pac. Rep. 56]; Ardmore v. State, 24 Okla. 862 [104 Pac. Rep. 913].

2. The question of whether a favorable majority vote on the issue of park bonds provided for under Sec. 4064 and 4065 G. C., is still subject to the limitation found in Secs. 3941, 3948 and 3952 G, C., has been disposed of by the case of Henderson v. Cincinnati, 81 Ohio St. 27 [89 N. E. Rep. 1072], At the time of the decision of that case Sec. 3952 had not been enacted, and the limitation of 4 per cent found in Sec. 3941 was held applicable to an issue of park bonds authorized as was the issue under consideration here. Section 3952 reduces that limit of 4 per cent to two and one-half per cent and under the decision of the Supreme Court referred to such limitation would undoubtedly apply here, where, as in this case, the bond issue carried by a majority vote and not by a vote of two-thirds.

3. The question of the legality of any issue of bonds under the proceedings had, has also been discussed by counsel. It is conceded that, so far as the $250,000 of park bonds taken by the board of sinking fund commissioners is concerned, they are within the limitation of two and one-half per cent, and they are, therefore, valid bonds. It is questioned whether there was authority in'the board of park commissioners to request, and the city officers to order, the issue of less than the full amount of park bonds authorized which had not been taken by the sinking fund commissioners, viz., $1,000,000. While no positive provision is made in the ordinance authorizing the sale of these park bonds, for selling them at different times in different parcels, it- would seem the common-sense view to take of the matter that it was not intended by council that in the absence of immediate need of the full value of $1,000,000 the park board would not have authority to sell an issue of less than that amount sufficient for their needs from time to time. In the opinion of this court, there is no objection to the fact that but $250,000 were advertised and sold in the award under question here. But, as held by the Supreme Court in the Henderson case, there is nothing in the park bond law that dispenses with the general limitation imposed by Secs. 3941, 3948 and 3952 G-. C., and as the favorable vote for the issue of these bonds was not the two-thirds vote provided for in Sec. 3947 G. C., the limitation applicable here must be two and one-half per cent rather than 5 per cent of the total value of the city property. Up to the extent, therefore, of two and one-half per cent, the issue of these bonds would be legal.

The determination of just what sum can be issued is further involved by the fact of the attempted sale of street repairing bonds at the same time. It appears that the ordinance for the issue of the park bonds was prior in time to the ordinance for the issue of street repairing bonds, and because of that fact it would appear to be entitled to precedence. But Sec. 3950 G. C., 'fixes the time when an indebtedness shall be deemed created or incurred, and the determination of which indebtedness is first incurred is left to the decision of the proper officer of the city as a matter of official action, rather than to the determination of 'this court upon such presentation as here made, it being understood, however, that no bonds can be issued in excess of the total limitation imposed by law.

A decree may be drawn enjoining the issue and sale of any bonds in excess of the amount fixed by such limitation, which doubtless can be agreed upon by counsel.

Jones, E. H. and Gorman, JJ., concur.


text:
    MALICIOUS PROSECUTION.
    [Hamilton (1st) Court of Appeals,

      May 8, 1916.]
    Jones, Jones and Gorman, JJ.
    Cincinnati, H. & D. Ry. v. George W. Winnes.
    1. Probable Cause in an Action for Malicious Prosecution.
    In instructing a jury with reference to probable cause in an action for malicious prosecution, it is tbe duty of the court to apply the law to the facts by instructing them whether the facts which the evidence tends to establish, if found by them to exist, did or did not constitute probable cause for the prosecution.

      2. Refusal to Charge as to Effect of Advice of Counsel.
    In an action for malicious prosecution it is error to refuse to give a special charge to the effect that, if the party causing the arrest in good faith laid the facts before an attorney and acted upon his advice in causing the arrest to be made, such advice is conclusive evidence of probable cause for the institution of the prosecution.
    3. Waiving Examination in Preliminary Hearing and Indictment Returned.
    Refusal to give a special charge in an action for malicious prosecution, to the effect that the waiving of examination by the defendant before a justice of the peace is prima facie evidence of probable cause; or to refuse the special charge that the return of an indictment against the plaintiff by a grand jury is prima facie evidence of probable cause for the arrest, constitutes error.
    4. Effect of Indictment Noilied.
    In such action to charge that if the defendant knew before the case was noilied that the charge was not well founded, his continuance in said prosecution may be regarded as evidence of actual malice for which punitive damages may be awarded, where there was no evidence that the defendant possessed such knowledge, and no explanation was given of punitive damages or of the kind of a case in which such damages may be awarded is error.
    ERROR.

      Waite & Schindel and Herbert Shaffer, for plaintiff in error.

      Galvin <& Saner, for defendant in error.
   JONES, E. H., J.

George "W. "Winnes, by tbe consideration of the court of common pleas, recovered a judgment in the stun of $3,500 against the Cincinnati, Hamilton & Dayton Railway Company for malicious prosecution, which judgment the said company by this proceeding in error seeks to have reversed. It also prays judgment of this court in its favor.

It is claimed that errors occurred during the trial in the admission and rejection of evidence, in the general charge of the court, in the action of the trial judge upon certain of the special charges requested, and that the verdict and judgment are not supported by the evidence.

There was not much difference between counsel, during oral argument here, as to the evidence on the record touching the question of probable cause.

Upon the question as to whether or no such evidence showed probable cause for the arrest of Winnes counsel disagreed, and argued ably each for his own contention as to the effect of the evidence bearing upon this all-important point. So it is in their briefs. Both quote and rely upon the same evidence in support of their diverse conclusions of law. One argues from these facts that there was probable cause as a matter of law and that nothing wras left for the company in the performance of the duty it owed to itself and society but to cause the arrest of Ludlum and Winnes. The other says that “there was no circumstance in this case that would lead an ordinarily prudent person to have a reasonable belief in the guilt of the person charged with the crime.” In fact, upon this phase of the case there is so little dispute over the facts that the question becomes one of law, viz.: Did Woodward, the agent of the company, in causing the arrest of Winnes have a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a belief that Winnes was guilty of the offense with which he was charged? See Ash v. Marlow, 20 Ohio 119; Miles v. Salisbury, 12 Circ. Dec. 7 (21 R. 333).

The guilt or innocence of Winnes is in no wise involved in this controversy. It is only a question of the information in possession of Woodward or of the company at the time of the arrest, and w'hether he acted thereon as would any reasonable, prudent man.

Notwithstanding the lack of essential difference upon material facts, we have carefully examined the record and have been confirmed in our impressions based on the argument that the verdict below was not supported by the evidence. There was such a correlation of circumstances, such a dove-tailing of incriminating evidence and such a logical development of suspicious acts and situations, all brought to the notice of Woodward in such a fashion as would in our opinion justify a reasonable man in taking the action complained of. The record we think shows caution and prudence on the part of the agents and employes of the railway company, and cool deliberate action free from malice. We can not say there was no evidence to support the verdict, but rather, in the language of the statute, that it is not supported by sufficient evidence. Probable cause is a mixed question of law and fact. For this reason we can not enter judgment here, but think there should be a new trial of this cause.'

It therefore becomes important to notice other alleged errors occurring at the trial:

First, the failure of the court to charge whether the facts proved constituted probable cause. This may not be reversible error in this ease, for the reason that it does not appear that the attention of the trial judge was called to the omission. The charge of the court was in the abstract. It gave the jury no assistance in determining what knowledge on the part of Woodward would constitute probable cause in this case.

Our view of the law is well stated by the court in Hess v. Baking Co. 31 Ore. 503, 512 [49 Pac. Rep. 803], thus:

“Without further elaboration of this question or further special reference to authorities, it is sufficient to say that, under the adjudged cases, it is generally the duty of the trial court, in instructing juries in eases of this character, to apply the law to the facts by telling them whether the facts which the evidence tends to establish, if found by them to exist, will or not constitute probable cause for the prosecution, leaving to the jury only the question as to the existence of such facts, and that it is error to define probable cause in general terms, and to submit to the jury the qu'estion as to whether the facts in the particular case do or do not come within such definition. The credibility of the evidence, and what facts it proves, are for the jury; but whether such facts do or do not constitute probable cause is a question exclusively for the court. The court should, therefore, by means of a hypothetical instruction, group the facts which the evidence tends to prove and instruct the jury that, if they find such facts to have been established, they must find that there was or was not probable cause.”

The court was asked to give special charges, as follows, and of his refusal so to do plaintiff in error complains:

Special charge No. 8.

“The undisputed evidence in this case is that James H. Woodward, before instituting the prosecution against the plaintiff, laid the facts before a reputable attorney at law, a member of the Ohio bar, and asked his advice and was advised by said attorney that under such facts the plaintiff and B. C. Ludlum were in his opinion guilty of a crime, and that said attorney then prepared the affidavit upon which the prosecution was instituted. I therefore charge you that if you find from the evidence that said James H. Woodward in good faith laid all the facts which had come to his knowledge before said attorney and acted on his advice, such advice is conclusive evidence of probable cause for the institution of the prosecution.”

Special charge No. 4:

‘41 charge you that the fact that the plaintiff waived examination before Justice of the Peace Vail is prima facie evidence that there was probable cause for the prosecution against him. ’ ’

Special charge No. 9:

“I charge you that the indictment of the plaintiff by the grand jury of Warren county is prima facie evidence that there ♦was probable cause for the institution of the prosecution against him.”

Without citing authorities other than Hess v. Baking Co., supra, we hold that the court erred in not giving tnese special charges. They correctly state the law and it was the duty of the trial judge to read them to the jury before argument, as requested.

The court erred in giving special charge No. 7 requested by plaintiff:

“The jury are instructed that if you find that at the time the defendant, through its agent, James H. Woodward, if you find he was such agent, while acting within the scope of his authority, commenced this prosecution, and did not have probable cause to believe, and did not believe, the plaintiff guilty of the crime charged against him, and such person afterwards knew before said case was nollied that the charge was not well founded, his continuance in said prosecution may be considered as evidence of actual malice for which plaintiff is entitled to punitive damages in addition to the damage to which he might be entitled as compensation, if any.”- '

This was error:

First, because there was no explanation of the term “punitive damages,” nor of the kind of eases in which such damages might be awarded. Miles v. Salisbury, supra.

Second, because there was no evidence showing that Wood-word had any knowledge, before the case was nollied, of the innocence of the accused or that the charge was not well founded.

We find no errors except those pointed out.

Judgment reversed and cause remanded for a new trial.

Jones, O. B., J., concurs.

Gorman, J., not sitting.