author: SAYRE, J.

text:
    CORPORATIONS — EVIDENCE—JUDGMENTS— PARTNERSHIP.
    [Athens (4th) Court of Appeals,
    June 7, 1916.]
    Merriman, Walters and Sayre, JJ.
    Harry H. Jackson v. Nelsonville Foundry & Mach. Co., et al.
    1. Oral Evidence Admissible to Show Identical Plaintiff in Suit on Judgment and in Original Suit.
    In a suit on a judgment oral evidence is admissible to show that the plaintiff in the record of the judgment is identical with the plaintiff in such suit.
    2. Oral Evidence in Suit on Judgment that Plaintiff in Record Described as Corporation was Partnership Should not be Excluded.
    Where, from the oral evidence, it appears that in the record of the judgment the plaintiff therein was by mistake described as a corporation, when in fact the plaintiff was the partnership,, or its assignee, seeking to recover on the judgment, such evidence should not be excluded.
    3. Knowledge of Corporate Officer of Matter in his Charge Imputed to Corporation.
    The knowledge acquired by an officer of a corporation, when acting in his official capacity and in regard to a matter with which, he is especially charged by the board of directors, is the knowledge of the corporation for any and all judicial purposes.
    4. Knowledge of Secretary-Treasurer of Corporation that Notes for Overdrafts Contained Warrants of Attorney to Confess Judgments Chargeable to Corporation.
    The secretary-treasurer of a corporation, together with its president, having been authorized by the board of directors to make notes to banks to cover overdrafts, and having without authority executed notes with warrants of attorney containing power to confess judgment against the company and in favor of the obligee therein named, the knowledge of the secretary-treasurer thereby obtained that the notes contained such warrants is the knowledge of the corporation.

      5. Ratification by Acquiescence of Unauthorized Act of Corporate Officer.
    When knowledge is obtained by a corporation of an unauthorized act of its officer it may ratify the same by acquiescence, continued for a number of years, without any .formal action of its board of directors.
    6. Thirteen-Years’ Payment of Interest on Authorized Notes Containing Unauthorized Warrants to Confess, Ratification.
    When a corporate officer signs notes authorized by the board of directors containing unauthorized warrants of attorney for the entry of judgment by confession, and the notes remain unpaid, save the payment of the annual interest thereon, for more than thirteen years, such acquiescence on the part of the corporation is a ratification of the unauthorized acts of its officer.
    7. Corporation Bound if Stockholders Permit Directors to Surrender Powers to Executive Officer. ,
    If the stockholders of a corporation permit the directors to surrender their powers and functions to an executive officer of • the corporation as a continuous and permanent arrangement, the board of directors being entirely inactive and the officer discharging all of its duties, the acts of such officer under such circumstances are binding upon the corporation.
    8. Corporation Cannot Deny Liability for Unauthorized Acts of General Manager Knowing Directors Defunct.
    So, where the general manager of a corporation whose board of directors as such has become defunct with the knowledge and consent of the stockholders, and the general manager with their consent directs and controls all its business affairs, a note signed by the president of the corporation and by such general manager as secretary, containing warrants of attorney for the confession of judgment, is binding upon the corporation and it can not avoid a judgment obtained by confession in a suit on such note on the ground that the execution of the note by the general manager was unauthorized and void.
    9. Failure of Partnership as Judgment Creditor on Cognovit Notes to Aver Purpose of Partnership Does not Render Judgment Void.
    In an action by a partnership on notes containing warrants of attorney for the entry of judgment by confession failure to aver in the petition that the partnership was formed for the purpose of carrying on a trade or business in Ohio does not render the judgment void.
    [Syllabus by the court.]
    Appeal.
    March 23, 1914, plaintiff filed a petition in the court of common pleas of Athens county, in which he stated that the defendant was a corporation and indebted to him in the sum of $7950.-00, evidenced by three promissory notes due and unpaid; that it was engaged in manufacturing, was indebted to various persons in a sum exceeding $40,000.00, was insolvent and wholly unable to pay its debts; that it was not able to carry on its business and prayed, among other things, the appointment of a receiver.
    Subsequently W. S, Weitzell was1 appointed receiver, and on May 29,1914, filed in the case an application to sell property, in which it was stated that it was necessary to sell the real estate of the corporation to pay its debts. It was recited in the ap- ' plication that Emery Lattaner, as superintendent of banks of the state of Ohio, claimed some interest in such real estate, and there was a prayer that he as such superintendent might be made a party to the action. Lattaner, as superintendent of banks, answered, as also did his successor.
    The cause was tried in the court of common pleas and after-wards appealed.
    January 19, 1916, Charles L. Baird, trustee, filed his answer and cross-petition in this court, which reads in part as folio ws:
    “Now comes Charles L. Baird, as trustee of John C. Baird, Eugene J. Cable and Charles L. Baird, in the liquidation and settlement of the affairs of the Merchants and Miners Bank, a partnership, having been made a party defendant hérein and given leave to file this his answer and cross petition, and says:
    ‘ ‘ That on or about the 12th day of March, 1914, Emery Lat-taner, then superintendent of banks of the state of Ohio, took charge of the affairs and all of the assets of the.Merchants and Miners Bank of Nelsonville, Ohio, a partnership, then comprised of Charles A. Cable, Eugene J. Cable, Charles L. Baird and John C. Baird, and thereafter proceeded with the liquidation of the said bank and the administration of its affairs until he was succeeded in said office by Harry T. Hall; that the said Harry T. Hall continued in charge of the liquidation of the said bank and the administration of its affairs until the 14th day of January, 1916; that on said last named date the said Harry T. Hall, as superintendent of banks of the state of Ohio, with the approval and authority of the court of common pleas of Athens county, Ohio, in a certain proceeding therein pending, entitled in the matter of the Liquidation of the Merchants and Miners Bank, and numbered 10940 on tbe docket of tbe said court, assigned and transferred to this answering defendant all and singular tbe assets, cboses in action and claims due said Merchants and Miners Bank, including therein tbe judgment and claim against tbe Nelsonville Foundry and Machine Company hereinafter set forth.
    “This answering defendant further says that at all times hereinafter mentioned prior to the 17th day of February, 1914, one Charles A. Cable, together with Eugene J. Cable and C. Bobbins were partners carrying on a banking business at Nel-sonville, Ohio, in the firm name and style of the Merchants and Miners Bank; that on said 17th day of February, 1914, said C. Bobbins assigned and transferred his interest in the said partnership to Charles L. Baird and John C. Baird, and thereafter until the 12th day of March, 1914, the said Charles A. Cable, Eugene J. Cable, Charles L. Baird and John C. Baird, as partners as aforesaid, carried on the said banking business in the said name and style.
    “The defendant, the Nelsonville Foundry and Machine Company, a corporation duly organized and existing under and by virtue of the laws of the state of Ohio, in consideration of money procured by it from said Merchants and Miners Bank, executed and delivered to the said Merchants and Miners Bank its several promissory notes as follows, to wit: * * *
    “That said Merchants and Miners Bank continued to hold and own said notes from the time of the execution and delivery of .each of them as aforesaid until the 18th day of January, 1911, when the said notes were merged in the judgment hereinafter set forth.
    “That on said 18th day of January, 1911, said Merchants and Miners Bank, in a certain action pending in the court of common pleas of Madison county, Ohio, entitled Merchants & Miners Bank v. Nelsonville Foundry & Mach. Go., and numbered 11306 on the docket of the said court, by the consideration of the said court recovered a judgment on the said promissory notes against the said The Nelsonville Foundry and Machine Company in the sum of $18,440.33, with interest from January 18, 1911, at the rate of seven per cent, per annum, and costs of suit taxed at $-. Said judgment is unreversed and unsatisfied and no part thereof has been paid, except the interest, thereon to January 1, 1914.
    “Pursuant to the said warrants of attorney said The Nel-sonville Foundry and Machine Company entered its appearance-in said cause, confessed said judgment and waived and released all errors therein.
    “This answering defendant further says that in the petition-filed in the said action in the court of common pleas of Madison county wherein the said Merchants and Miners Bank was plaintiff and the Nelsonville Foundry and Machine Company was defendant, numbered 11306 on the docket of the said court, it was alleged that the plaintiff, said Merchants and Miners Bank, was a corporation organized and existing under the laws of the state of Ohio and doing business in Athens county, in said state; that the said allegation of the corporate capacity of saidN'plaintiff was made and inserted in the said petition through inadvertence and mistake by the then attorney of the said Merchants and Miners Bank; that there never was any such corporation organized and existing under the laws of the state of Ohio and doing business in Athens county, Ohio;(that the plaintiff in the said action whose corporate capacity was erroneously alleged in the manner aforesaid was the partnership then comprised of the said Charles A. Cable, Eugene J. Cable and C. Robbins; * *
    There was a prayer that the Madison county judgment be declared the first and best lien.
    The name of the plaintiff stated in the caption in the Madison county case was: The Merchants and Miners Bank. There are five causes of action in the petition in that case, each of which sets up a promissory note executed by the Nelsonville Foundry and Machine Company and payable to Merchants and Miners Bank. Each cause of action contains the averment that, “plaintiff is a corporation organized and existing under the laws of the state of Ohio and doing business in Athens county, in said state. ’ ’
    This first note was for $1,000.00, dated August 25, 1892, ■due one day after date. The second was for a like sum, dated August 26, 1892, due one day after date. The third was for $3,700.00, dated February 6, 189/7, due ninety days after date„ The fourth was for $2,676.07, dated October 16, 1897, due-ninety days after' date. The fifth was for $10,000.00, dated December 31, 1910, due one day after date. The interest on the several notes, except the last, was paid annually.
    The note dated August 25, 1892, contained the following:-
    “And we hereby waive protest and notice thereof, and” authorize and empower any attorney at law, in the state of Ohio, or elsewhere, in our names and behalf, or in the name and" behalf of any or either of us, to appear before any court of record in said state of Ohio, or elsewhere, at any time after this obligation becomes due, and waive process and service thereof,, and without notice, confess judgment against us, or any or either-of us, in favor of the said payee for the amount that may appear to be due thereon, for the principal and interest, damages-, and costs of suit, releasing all errors in the judgment so confessed and waiving all right and benefit of appeal, and any and all proceedings to set aside, vacate, open, suspend or reverse-such judgments, * #
    Bach of the other notes contained language in effect the same as the language quoted.
    The two notes for $1,000.00, one dated August 25 and the other August 26, 1892, were executed on the authority of the board of directors of the Nelsonville Foundry & Machine Co.,, which authority was expressed in the following words: ‘ ‘ That the president and secretary be authorized to make a loan of $5,000.00 to meet overdraft in bank and for future requirements.” The note for $3,700.00 was executed on the authority of the directors expressed in the following language: “By motion the secretary was authorized to make notes to the banks-, to cover overdrafts.” The note for $2,676.07 was executed on the authority of the directors that “the president and secretary be authorized to give notes for same.” The board of directors-, gave no authority for the execution of the $10,000.00 note.
    Since prior to August 25, 1892, Charles A. Cable, Eugene J. Cable and C. Robbins were partners carrying on a banking business at Nelsonville, Ohio, in the firm name and style of: Merchants and Miners Bank, the payee in the above named notes. The notes .were given for money loaned the Nelsonville Foundry & Machine Co. At the date of the first and second notes, August 25 and 26, 1892, the directors of the Nelsonville Foundry & Machine Co. were Charles A. Cable (the same person who was one of the firm doing business as Merchants and Miners Bank), J. W. Jackson, R. Barnecut, Charles Robbins and C. E. Poston. These notes were signed: “The Nelsonville Foundry & Machine Co., by Chas. A. Cable, President, and C. E. Poston, Secretary-Treasurer.” In 3897, when the second and third notes above referred to were given, Charles A. Cable, C.. Robbins, C. E. Poston, J. W. Jackson and R. H. Jackson were the directors, and the note of February 6, 1897, was signed: “The Nelsonville Foundry & Machine Co., By J. W. Jackson, President, and C. E. Poston, Secretary-Treasurer. ” The note of October 16, 1897, was signed: “The Nelsonville Foundry & Machine Co., By C. E, Poston, Secretary-Treasurer.” The minutes of the Nelsonville Foundry & Machine Company recite that on April 29, 1909, there was held the annual meeting of its stockholders and “that the majority of the stock being present the meeting was called to order. * * * Stockholders present: C. A. Cable, C. Robbins, H. H. Jackson (plaintiff) and R. PI. Jackson.” Directors elected were: C. A. Cable,' C. Robbins, Fred Weymueller, PL IP. Jackson and R. IP. Jackson. At a meeting of the directors held the same day C. A. Cable was elected president, and R. H. Jackson secretary-treasurer. The same record recites that there was a stockholders’ meeting on August 22, 1912, at which time C. A. Cable, C. Robbins, H. H. Jackson and R. H. Jackson were elected directors and someone elected in the place of Wey-mueller. Neither the stockholders nor directors of the Nelson-ville Foundry & Machine Company have ever met since April 29. 1909, except on the one occasion, August 22, 1912, when the stockholders re-elected the old board of directors with one exception. Mr. R. H. Jackson has been secretary-treasurer of the Nelsonville Foundry & Machine Company since 1901 and general manager since prior to 1909, and during all that time has been tbe one salaried official of tbe company and its control bas been in bis bands.
    ■ Oral evidence was received at tbe trial in this court, over the objection of tbe Nelsonville Foundry & Machine Company, to show that Merchants and Miners Bank, described as a corporation in tbe Madison county suit, was tbe partnership composed of Charles A. Cable, C. Bobbins and Eugene J. Cable doing a banking business in Nelsonville, and whose assignee is Charles L. Baird, trustee. Oral evidence was also received, over the objection of such defendant, to show that there is no Ohio corporation by the name of The Merchants and Miners Bank. The Madison county judgment was taken January 18, 1911. The petition in that ease did not contain an averment that the plaintiff was a partnership formed for the purpose of carrying on a trade or business in Ohio.

      Grosvenor, Jones & Worsiell, and L. G. Addison, for *W. S. Weitzell, receiver.

      Foster & Wells, Webber, McCoy & Jones,'for Charles L. Baird, trustee.
   SAYRE, J.

The judgment record introduced in evidence shows that the plaintiff was described in the Madison county ease as a corporation. The introduction of the judgment record is objected to because it does not show that the plaintiff therein is identical with Merchants and Miners Bank, a partnership.

Oral evidence, introduced on the trial, shows that Merchants and Miners Bank, a partnership, employed a lawyer to take judgment for it on the cognovit notes in Madison county -against the Nelsonville Foundry & Machine Co., and that he by mistake described the plaintiff in that case as a corporation, and further that there is no Ohio corporation by the name of The Merchants and Miners Bank.

Should this evidence be excluded? The averments in the petition in the Madison county case that the plaintiff was a corporation were immaterial ones, Brady v. National Supply Co. 64 Ohio St. 267 [60 N. E. 218; 83 Am. St. 753], These are merely descriptive of the plaintiff and of no more consequence -than if the plaintiff’s name in the caption read: The Merchants .and Miners Bank, a corporation. ,

The precise question for this court then is: In a suit on a domestic judgment, where it appears that the name of the party plaintiff in the judgment sued on is not identical with the name of the party claiming to have secured the judgment, can parol evidence be received to show that the parties are, in fact, identical? A case can readily be imagined where the admission ■of such evidence would be absolutely necessary. If the name -of the plaintiff in a suit for recovery on a judgment was exactly the same as the name of the plaintiff in the transcript of the judgment sued on and there was an answer to the effect that they were not the same parties, parol evidence would be imperative. "While the authorities are not in accord on the subject the great weight of authority sustains the rule that- parol evidence is ad-jnissible to prove that the parties, are identical. A list of them .follows: .

State v. Hanousek, 10 Circ. Dec. 516 (19 R. 303); Missouri Glass Co. v. Gregg, 4 Wills. Civ. Cas. 92 [16 S. W. 174]; U. S. Nat. Bank v. Venner, 172 Mass. 449 [52 N. E. 543]; Fisher, Brown & Co. v. Fieldmg, 67 Conn. 91 [34 Atl. 714; 32 L. R. A. 236]; Boyden v. Hastings, 34 Mass. (17 Pick.) 200; Morris v. State, 101 Ind. 560 [1 N. E. 70]; Hollenbeck v. Stanberry & Son, 38 Iowa 325; Mobile & M. Ry. v. Yeates, 67 Ala. 164; James H. Barry & Co. v. Carothers, S. C. Rich. Law 331; Stevens v. Elizee, 3 Campbell 256; Farrar v. Fairbanks, 53 Me. 143; Stevelie v. Read, 2 Wash. C. C. 274 [Fed. Cas. No. 13389].

The rule is well estbalished that where the record of a former action, pleaded as a bar or estoppel, does not show that the parties to such action were the same with the parties to the action in which it is so pleaded this fact may be established by p'arol evidence (23 Cyc. 3542).

Counsel for the receiver say that a suit to recover on a judgment presents an entirely different situation from one in which ,a former recovery is pleaded, but they do not point out any .difference or cite any ease as authority for the position that there should be a difference. It seems to us there is no differ■ence. Both cases fall within or without the general rule that parol evidence will not be received to explain, contradict or interpret a judgment. In one case the judgment record is admitted to prove tbe existence of a cause of action; in tbe other it is admitted to prove tbe non-existence of a cause of action. The same record may be introduced to prove the one or tbe other. Since the same record can be introduced for either purpose it follows naturally and logically that if parol evidence can be introduced to show identity of parties in one case it may in the other. Suppose Merchants and Miners Bank, a partnership, had brought another suit on the cognovit notes sued on in Madison county and had served process upon the Nelsonville Foundry & Mach. Co., and the latter had answered and pleaded res ad-judieata and offered in evidence a transcript of the judgment of the first suit and it was objected to for the same reason that it is objected to in this suit, what difference would there be in the assumed case and the one under consideration ? If it be admitted that the transcript of the judgment was admissible in the ■assumed case and that the identity of the parties could be proven by parol evidence, what reason can be assigned for excluding such evidence in the ease under consideration? We are wholly at a loss to discover any reason, and conclude that the authorities which support the position that parol evidence may be received to identify the parties in a case where former recovery is pleaded are precisely in point in an action where it is sought to identify parties in a suit on a domestic judgment. The judgment record and the oral evidence were properly admitted.

It is contended that the Nelsonville Foundry & Machine Co. did not authorize the warrants of attorney contained in the several promissory notes, and that therefore the court of common pleas of Madison county did not have jurisdiction of the person of such company. It is true that the only authority extended by the directors was to make notes to cover overdrafts, except in the case of the note for $10,000.00 where no authority whatever was given by any positive act of the directors acting as such. However, the two notes for $1,000.00 each, dated August, 1892, had been existing contracts between Merchants and Miners Bank and the Nelsonville Foundry & Mach. Co., for eighteen years before they were reduced to judgment. The note dated February 6, 1897, and the one dated October 16, 1897, had been existing contracts between the same parties for thirteen years before they were reduced to judgment. During that entire time the company had paid interest on the notes. The notes executed in August, 1892, were signed by Charles A. Cable, President, and C. E. Poston, Secretary-Treasurer. The note dated February 6, 1897, was signed by J. "W. Jackson, President, and C. E. Poston, Secretary-Treasurer. The note of October 16, 1897, was signed by C. E. Poston, Secretary-Treasurer. While the knowledge acquired by Charles A. Cable, as he was one of the partnership composing Merchants and Miners Bank, as to the contents of the notes might not have been the knowledge of the. company yet C. E. Poston, who signed all four notes and had no interest in such partnership., was secretary-treasurer and his knowledge of the contents of the notes was the knowledge of the company. Poston was one of the officers authorized by the board of directors of the corporation to execute notes, and that matter was his especial business and within the scope of his authority. Knowledge of the officers and agents of a corporation within the scope of their official capacity and agency is the knowledge of the corporation. Thompson, Corporations (2 Ed.) Sec. 1646, First Nat. Bank of New Bremen v. Burns, 88 O. S. 434 [103 N. E. 93], In the case of Dickinson v. Zubiate Mining Co. (Col.), 106 Pac. 123, it is held that,

‘ ‘ Through the president and secretary who executed a written agreement in a corporation’s behalf, it must be deemed to have had notice thereof, when it was made.”
“The most comprehensive rule with reference to this subject which can be stated is that notice communicated to, or knowledge acquired by, the officers or agents of corporations when acting in their official capacity or within the scope of their agency becomes notice to or knowledge of the corporation for all judicial purposes. ’ ’ 10 Cyc. 1054.

Another rule equally well established is that:

“A corporation may ratify by passive acquiescence, as well as by affirmative action, the unauthorized acts of its agents, and the acquiescence with knowledge, if continued for a considerable time, operates as a ratification.” Knowles et al. v. North ern Texas Traction Co. (Tex.), 121 S. W. 232, Thompson, Corporations Sec. 1407.

All four of the notes could have been taken up long ago and renewals given without the warrants of attorney of the corporation had any desire to set right the unauthorized acts of its officers, but its acquiescence for so long a time without any objection whatever deprives the corporation of the right to now say that the warrants of attorney are without its authority. To say that the terms and stipulations contained in notes which have been owed by a corporation for more than thirteen years, and on which the interest has been paid, were unknown to the board of directors as a board, especially when the president and secretary of the corporation, both of whom were directors, signed the notes, is a proposition so much at variance with the ■ordinary knowledge and duties of corporate officers that it ought not to receive any serious consideration. The further argument that ratification by individual directors is not a ratification by the board is a proposition which would at once destroy the doctrine of ratification by acquiescence, which is well established. Ratification by acquiescence means, ordinarily, ratification without formal action. It means knowledge of the fact without any act of any kind for a considerable period of time.

It is further contended that the Madison county court had no - jurisdiction of the machine company because a warrant of attorney must be strictly construed, and as Merchants and Miners Bank was in fact a partnership the attorney at law who confessed the judgment in Madison county had no authority to confess a judgment in favor of the Merchants / and Miners Bank, a corporation, citing Spence v. Emerine, 46 Ohio St. 403 [21 N. E. 866; 15 Am. St. 634]; Mansfield Sav. Bank v. Post, 12 Circ. Dec. 577 (22 R. 644), and other eases of like import. It will be noticed that the payee in the notes referred to is Merchants and Miners Bank. If attention is directed solely to the record in the Madison county case the notes were strictly construed when judgment was entered for Merchants and Miners Bank because it was the payee and obligee named in the notes. "Whether it was a corporation or not can not be determined by the notes because they are silent as to that matter, and as Merchants and Miners Bank must necessarily have been either a corporation or partnership, an individual or individuals doing business in that name, there is nothing in the record in that case to show that in giving judgment for Merchants and Miners Bank, a corporation, the judgment was not given in strict accord with the terms of the notes. It is only when we go outside the record of the Madison county case that any reason can be found for saying that the notes were not strictly construed and judgment given for a party who was not entitled to it. It is only when the record in the instant ease comes into view that the authority of the attorney at law who confessed the judgment can be questioned. So the whole matter is reduced finally to whether oral evidence can be received to show that the plaintiff in the Madison county judgment was identical with Merchants and Miners, a partnership. If it can, as we have decided, then it at once appears that the judgment was confessed in favor of Merchants and Miners Bank, a partnership, for it was in fact the plaintiff in that suit.

The note for $10,000.00 was given within a month before it was reduced to judgment and was signed: The Nelsonville Foundry & Mach. Co., C. A. Cable, President, it. IT. Jacks.on, Secretary. The board of directors was not in session a single time in a period of almost five years prior to the appointment of a receiver for the machine company, the last meeting being April 29, 1909, and the records further show that outside of the annual meeting, at which times they elected officers, the board of directors did not perform a single act relating to the business of the corporation after some time in 1904. R. IT. Jackson since prior to 1909 has been secretary-treasurer and general manager of the corporation and made the following statement at the trial in the court of common pleas:

“Would you mind if I. would tell you that the directors and the stockholders in their yearly meeting would say they would turn over a new leaf every year, ‘now, we will get together and we will have meetings, regular meetings, and will look after business a little bit closer and will help you out, ’ and that is the last I would hear of them until the next meeting.”

But the next meeting after April 9, 1909, never came. So that for a period of almost five years prior to the appointment of the receiver on March 24, 1914, the board of directors never met. They ceased to direct the corporation and as directors became dormant. R. H. Jackson was the only officer connected with the corporation who was compensated. The business was being conducted at a loss.. The directors were not interested. They, by their acquiescence, allowed the business to be conducted by Mr. Jackson, and he had entire charge of the same during the period of five year's. The stockholders present at the annual meeting in 1906 were C. A. Cable, Fyed Weymueller representing stock of T. O. O. F., H. H. Jackson and R. H. Jackson. Those present at the annual meeting in 1907 were the same persons and C. Robbins. Those present at the annual meeting in 1908 were Cable, Robbins, Weymueller and R. H. Jackson. Those present at the annual meeting in 1909 were Cable, Robbins, H. H. and R. H. Jackson. Those present at the annual •meeting of August 22, 1912, were Cable, Robbins, H. H. and R. IT. Jackson, and two persons representing stock of the I. 0. 0. F. -So since 1906 the stockholders who attended the annual meetings were Cable and Robbins, both interested in Merchants -and Miners Bank, the two. Jacksons, and representatives of the stock of I. O. O. F., and of these Cable and the two Jacksons ■owned five-sixths of the stock.

Now the stockholders never held a meeting during that five year period either except on the one occasion, August 22, 1912, •when they elected the old board of directors, being the same persons (with one exception) -who had not met during the five year period. So the stockholders acquiesced in the action of the directors in allowing Mr. R. H. Jackson to manage and control the business of the company.

At the time of the execution of the $10,000.00 note on December 21, 1910, the directors had not met for one year and seven months, and the stockholders were allowing the general manager, Mr. R. H. Jackson, to assume and exercise the powers of the board of directors. Their attitude in the matter is clearly seen by the re-election of the same directors in 1912 with the single exception. This shows that they, the stockholders, were willing that the single officer should assume the duties of the board of directors, for they knew the board of directors was such only in name. Thompson, Corporations (2 Ed.) Sec. 1409 says:

“Generally where the stockholders, by their direction or acquiescence, invest the executive officers of the company with the power and functions of the board of directors, as a continuous and permanent arrangement, the board being entirely inactive, and the officer discharging all its duties, a transaction consummated in behalf of the corporation by such officer will be valid tho not specifically authorized by any vote of the stockholders or directors.”

In the case of Smead Foundry Co. v. Chesbrough, 6 Circ. Dec. 670 (18 R. 783), cited so frequently by counsel for the machine company, the fourth paragraph of the syllabus reads in part as follows:

‘ ‘ The president of a corporation has no power, by virtue of his office, to'execute a bond and warrant of attorney for the entry of judgment by confession against a corporation. Such power is vested in the board of directors only. But the president's authority may be charged beyond the powers inherent in his office by the consent and acquiescence of the directors in permitting him to take control of the business of the corporation. ’ ’

The evidence shows beyond dispute that the stockholders permitted the directors to surrender their offices to the general manager for a period of five years. The note of .December 31, 19.10, was executed nineteen months after the board of directors ceased to meet and as a board became defunct. The act of R. II Jackson in signing the $10,000.00 note was the act of the corporation. R. H. Jackson had succeeded to the power of the board of directors» They could have executed a judgment note to the bank on December 31, 1910. Hence, under the circumstances, he could. The note of December 31, 1910, was beneficial to the machine company, and it can not now say, under the circumstances as appear beyond dispute in the evidence, that the warrant of attorney contained in that note was without the authority of the company.

Does the failure to aver in the Madison county petition that the plaintiff was a partnership formed for the purpose of carrying on a trade or business in Ohio render the judgment void ?

In Beers v. Gurney, 7 Circ. Dec. 411 (14 R. 82), the court held that where the defendant fails to take advantage of such failure iby proper pleading the objection is waived. The case under consideration, however, is different from that one, in that the judgment here in controversy was taken on confession and the defendant had no opportunity to make any objection. Ilowi ever, the Madison county court of common pleas had jurisdiction of the parties and of the subject-matter, and the petition therein was such an one as could have been amended and the proper averment made,, as the record (outside the judgment record) shows that Merchants and Miners Bank was a partnership formed for the purpose of doing business in Ohio.

As said in Spoors v. Coen, 44 Ohio St. 497 [9 N. E. 132] :

“If the ease presented invoked the jurisdiction of the court, and could have been perfected by amendment, the judgment of the court then could not be treated as a nullity.”

An amendment could have been made showing the plaintiff had legal capacity to sue in the Madison county ease. Besides, the waiver of errors in the warrant of attorney would seem to be sufficient to waive just such an error as this. We have no doubt that had the defendant joined issue on some other averment in the Madison county case without raising objection to the failure to aver that the plaintiff was a partnership formed for the purpose of carrying on business in Ohio, and the plaintiff had recovered a judgment, that judgment would be valid. If this is true and the error could be waived under such circumstances, it was waived by the language of the cognovit note.

The decree will be in accordance with this opinion.

Decree accordingly.

Walters and Merriman, JJ., concur.


source: Caselaw Access Project

author: KINKADE, J.

license: Public Domain

text:
    ACCOUNTING-MUNICIPAL CORPORATIONS-OFFICERS.
    [Huron (6th) Court of Appeals,
    April 15, 1916.]
    Richards, Chittenden and Kinkade, JJ.
    Norwalk (City) v. R. L. Christian.
    Fees Paid Clerk of Council for Serving Notices not illegal.
    Municipal officers, in the absence of fraud alleged, having paid . out corporation money for services rendered by the clerk of council in serving notices of improvements contemplated, will be presumed to have discharged their duties in a legal way and with authority of council, notwithstanding the records of the council do not show that compensation was fixed by said council for such services, and especially since the record shows that the municipality paid nothing but what it should have paid and the clerk received nothing but, what he was entitled to receive from the municipality.
    Error.

      Edward C. Turner, Atty. Gen., II. D. Wickham and Charles Follett, for plaintiff 'in error.

      L. W. Wickham, for defendant in error.
   KINKADE, J.

The city brought an action in the justice court to recover the sum of $70 being the amount of certain fees paid by the city to the clerk of the council for serving improvement notices. The petition is based upon .a report filed by the bureau of inspection and supervision of public offices, with the state auditor. It sets forth the portion of the report so filed showing the amount due that aggregate the amount claimed in the petition. In this report set out in the petition is found the statement that ‘ ‘ The records of the council do not show that council ever fixed any compensation for serving notices, and in the absence of an ordinance or resolution passed by the council under See. 4214 G. C., fixing the compensation, the mere fact that appropriations have been made does not comply with the requirements of the-law as provided by said section.” A demurrer was filed to this petition, which was overruled, after which an answer was filed by the defendant, admitting that the plaintiff is a municipal corporation, and that the defendant during the time covered in the petition was the duly elected, qualified and acting clerk of the city of Norwalk, and denying all other allegations. On the trial of the ease over objection of counsel for the defendant, the report of the bureau of accounts was offered in evidence and thereupon the auditor of the city was called and examined as a witness whereupon the plaintiff rested its case. On motion of the defendant the court directed the jury to return a verdict in favor of the defendant. This action of the court is assigned as err'or. The case has been very fully presented on both sides by briefs.

We find no statement in the bill of exceptions that the bill contains all the evidence. The statement at the beginning of the bill is as follows: “The plaintiff to maintain the issues on its. part to be maintained called the following witness and offered the following testimony all of which is hereinafter fully set out.” It will be observed that this statement only goes to the length of' stating that the bill contains the testimony that the bill contains. It does not say that it contains all the testimony that was offered at the trial. It would have been quite evident without a statement at all, that the bill contains what it does contain, and that is all that is said by the statement quoted. It has been several times held by this court that the use of the word “testimony” in this connection is not sufficient. The word “testimony” has reference to the oral testimony of witnesses on the stand. The word “evidence” is of much broader significance and. includes the testimony of witnesses and all other evidence in whatever form offered in the ease. This statement in the bill would be quite insufficient if it said that it contained all the testimony, which it does not. It is more insufficient in failing to state, as it does, thaC it contains all the evidence. This being the state of. the record, we might content ourselves with affirming the judgment on the authority of Regan v. McHugh, 78 Ohio St. 326 [85 N. E. Rep. 559], which squarely holds that a reviewing court can not reverse a judgment entered upon a verdict directed by the trial court, unless there is brought to the reviewing court all the evidence upon which such directed verdict was returned and judgment entered. Manifestly this decision was based upon the fact that every presumption of regularity and validity attends the judgment of the trial court and the burden is carried by the plaintiff in error to show that the judgment is erroneous. If there may have been before the trial court such evidence as entirely justified the court in directing a verdict for the defendant, the reviewing court must presume, in the absence of a bill containing all the evidence, that such evidence was before the trial court. We think, however, it is not necessary to rest the decision in this ease upon the ground mentioned, alone. This was an action on the part of the city to recover money that had been paid to the clerk ‘of the council for the serving of notices and the payments were made by the city treasurer upon warrants issued by the city auditor. It is said that the petition makes a prima facie showing that the council had not, prior to the time of the payment, passed an ordinance or adopted a resolution fixing the compensation to be paid to the clerk of the council for the serving of the notices in question, and that consequently the payment of compensation for the service mentioned was unauthorized by law. It is not stated in the petition, nor claimed in the brief, that the service was not performed, or that the amounts paid therefor were unreasonable, or that any fraud or bad faith was indulged in either by the auditor in issuing'the warrant, or the treasurer in paying the same, or the clerk of the council in receiving the money upon the warrant. The sum total of the claim on the part of the plaintiff, even giving the language used the fullest scope that can be claimed for it, is that the council had not, prior to the time of the payment, fixed by either ordinance or resolution the compensation to be paid. The fact is that the report of the bureau of supervision does not quite state this, but only states that the record fails to show any ordinance or resolution fixing the compei\u tion; but, even conceding the language to have the scope that I have mentioned, the petition falls very far short of stating as a fact, even when aided by the provisions of See. 286-1 Gr. C., that the council did not in fact authorize the payt. ent of this amount to the clerk of the council prior to the drawing of the warrant by the auditor and the making of the payment by the treasurer pursuant to the warrant. The fact of the performance of the service and the payment being admitted, and there being no charge of bad faith or fraud, the situation is at once attended by the presumption that the public officials, the auditor and the treasurer, discharged their duties in a legal way and paid out the money of the city only after having received authority of the council so to do. It is not claimed by counsel for plaintiff that the city might not have legally paid the amounts in question to the clerk of the council for the service performed, had the city seen fit to fix in advance the amount of this compensation by ordinance or resolution of council. We think the case falls squarely within the decision of .the Supreme Court in State v. Fronizer, 77 Ohio St. 7 [82 N. E. 518].

The record clearly shows that the city has paid nothing but what it should have paid, and the defendant has received nothing but that which he' was entitled to receive from the city, and, therefore, the verdict and judgment of the court of common pleas accomplished substantial justice and the judgment will be affirmed.

Richards and Chittenden, JJ., concur.


author: HOUCK, J.

text:
    WILLS.
    [Richland Court of Appeals,
    March 19, 1917.]
    Powell, Houck and Shields, JJ.
    George W. Strock v. John Strock et al.
    After-Acquired Real Estate Passes Under Residuary Clause of Will.
    A will containing the general residuary clause, “the balance and remainder of my property of every kind and description X give and bequeath,” e'tc., covers after-acquired real estate, and in an action for partition of said real estate it will be treated as having passed under the residuary clause.
    [Syllabus by the court.]
    Error.

      James W. Galbraith, for plaintiff in error.

      James P. Seward and Kramer & Jarvis, for defendant in. ERROR.
   HOUCK, J.

The parties to this proceeding in error stand here in the same relation to each other as they stood in the court below.

This is an action brought for the partition of certain real estate described in the petition of the plaintiif and of which the testatrix, Mary Elizabeth Clark, died seized, but said real estate was acquired by her after the execution of her last will and testament.

The conceded facts are as follows: On April 4, 1910, Mary Elizabeth Clark, who then owned no real estate, made and executed her last will and testament. Her estate at the time, as specifically described in her will, consisted only of mortgage securities, bonds, stocks, money loaned and cash- in bank, from which personal estate she gave and bequeathed certain money bequests amounting to about $8,800, leaving a balance of personal property which would pass under a residuary clause of her will in the sum of $10,000; that about two and a half years after the execution of her will she purchased the real estate described in the petition of plaintiff, and at the time of her death was seized of same. Said testatrix never re-executed or republished her will. The residuary clause of the will of Mary Elizabeth Clark is as follows :

“Item 10. The balance and remainder of my property of every kind and description I give and bequeath to Curtis King and his wife, Jennie King, and to Roy Sipe and his wife, Alice Sipe, share and share alike; that is, to Curtis King and his said wife the one-half of the amount left after all of the above gifts,, and to Roy Sipe and his said wife the other half remaining after all of the above gifts. ’ ’

The only question to be determined in this case is, does thereat estate acquired by the testatrix subsequent to the making of her will pass by the terms and provisions thereof? This question must be solved by a proper, true and correct interpretation of the terms and provisions of the will now before us for construction, but in arriving at the intention of the testatrix it is not necessary to construe the entire will and all of its provisions, if the question to be determined can be ascertained from one clause thereof, which we think is clearly apparent in the instant case, being the residuary clause as contained in item 10. Counsel for plaintiff in error urges that the will before us for construction be construed according to certain rules of construction, and in his printed brief cites many of these rules upon which he relies. True, we have well settled rules for the construction of wills, such as the following: (a) The intent of the testator, the guide in the construction of a will, is to be gathered from a consideration of the entire instrument, (b) The whole will must be construed together, and in the light of the whole will and all the surrounding circumstances each clause is to receive its interpretation, (e) Nothing is more clearly settled or of more frequent application in the construction of a will than the rule requiring the intention of the testator to be gathered from all its parts and not from isolated passages.' These rules are sound, but are only applicable when the language used in the will is ambiguous, indefinite and uncertain, or where-different items or clauses of the same will relate to the same subject-matter, and then it becomes necessary to consider the entire will or different items therein in order to ascertain the intent of the testator. But no such ease is presented here, for the reason that but one item of the wall is necessary to be construed for the purpose of ascertaining whether or not the real estate in question passed by devise. Section 10579 G. C. provides as follows:

“Any estate, right or interest, in lands or personal estate or other property acquired by the testator after making his will,, shall pass thereby, as if held or possessed at the time it was made, if such manifestly appears by the wiE to have been his intention. ’ ’

Let us inquire: Does the language used in item 10 of the will before us plainly and manifestly show, upon its face an intention on the part of the testatrix, Mary Elizabeth Clark, to devise her after-acquired real estate? We think so. The language contained in this item of the will must be interpreted to mean just what is expressed therein by the words and language used. The mere fact that we can not understand why the testatrix so provided, or that such provision is different from what was <or might have been expected will not warrant or justify putting a construction on said language different from the plain meaning of the words used therein. The language is clear, plain and unambiguous, and we are bound to hold that the intention of the testatrix, as manifestly shown by the language used in item 10 of her will, was to devise all after-acquired property of which she might die seized. It seems to us that this is the natural and ordinary meaning and import of the language thus used. To us it seems clear that the language employed is such that there can not be any doubt as to its being a general residuary •clause: “The balance remaining of my property of every kind and description I give and bequeath,” etc.

We feel that the law is well settled that such words, in the residuary clause of a will, wholly and entirely preclude an interpretation to die intestate as to any property of which the testator may die seized. The learned counsel for plaintiff in error relies upon the ease of Wright v. Masters, 81 Ohio St. 304 [90 N. E. 797; 135 Am. St. 790; 18 Ann. Cas. 165], We have examined it with much care and can not agree with the claim thus made. A careful reading of the opinion in the above cited' case' (at pages 312 and 313) clearly discloses the fallacy of counsel's contention. Judge Crew, speaking for the court in said case, says:

“This rule of the common law has, however, been so far modified by statute (See. 10579 G. C.), in this state, that property acquired by a testator subsequent to the execution of his will, shall pass thereby, if, from the will itself, it shall appear with sufficient clearness that such was the intention of the testator. * * * The language of this statute clearly indicates its limitation, and shows it to have been the purpose of the Legislature to restrict its operation to those cases where the intent of the testator to pass after-acquired property is clearly and sufficiently disclosed in his will. Hence, in every instance the question involved becomes one of construction, and the intent of the testator must be sought in the will itself. The will under consideration in the present case makes no reference whatever in any of its provisions to after-acquired property. The property therein devised by item one to Mary! Masters during-her life is definitely designated and specifically described, and! there is in the provisions of said will no hint or suggestion anywhere of a purpose on the part of the testator to give her more-than the property thus specifically described. This will contains no residuary clause, and there is in it no clause, either-general or specific, under which the property in controversy would or could pass to Mary Masters as devisee, even if the testator had owned the same at the time he executed said will.”

It will be seen that in the case of Wright v. Masters, supra, that the will contained no residuary clause, and there was no provision in it, either general or specific, whc-reby after-acquired, property would or could pass to the claimed devisee. But not, so in the case at bar. We do find a residuary clause which is.; specific, definite and certain, and which by the plain language-used devices “the balance and remainder of my [testatrix’s] property of every kind and description.” We therefore are of' the opinion that the doctrine laid down in the ease of Wright v. Masters, supra, is a ease which seems to us to be directly in. point and decisive of the case at bar, and instead of its being' favorable to the contention of plaintiff in error in this ease we. are free, to say that it is directly in point and fully bears out the claim of the defendants in error.

We wish to call the attention of counsel to the case of Newton v. McKinstry, 36 O. C. C. 614 (16 N. S. 219). A careful examination of this case as to the facts and the law, as laid, down by the learned judge in the opinion, leads us to the conclusion that it is a ease directly in point with the instant case,, and that the doctrine enunciated therein is also decisive of the; question before us.

In view of what we have already sáid we hold that the wilt of Mary Elizabeth Clark passed the real estate in controversy,, which was acquired by her after the execution of her will. Thus: finding, it follows that the judgment of the common pleas court must be affirmed.

Judgment affirmed.

Powell and Shields, JJ., concur.


author: RICHARDS, J.

text:
    FALSE IMPRISONMENT.
    [Wood (6th) Court of Appeals,
    May 15, 1914.]
    Chittenden, Richards & Kinkade, JJ.
    H. C. Middleton v. Bloomdale (Vil.) et al.
    Village Officials not Liable for False Imprisonment Under Invalid Ordinance.
    Village officials are not liable to respond in damages for false imprisonment because of the alleged infirmity of the ordinance under which the arrest was made, where they acted in good faith and with an honest belief in its validity.

      'William. Dunipace and A. B. Gilfilliam,, for plaintiff in error.

      McClelland & Bowman and J. M. Sleeker, contra.
   RICHARDS, J.

H. C. Middleton was arrested on December 17, 1912, in tbe village of Bloomdale, charged with the violation of an ordinance «i that village requiring, among other things, a license fee for those persons engaged in the business of bill distributing. This arrest was made by the defendant, George Beam, who was. marshal of the village, and was made upon said defendant actually seeing the plaintiff violating the ordinance. The arrest was made with the knowledge and approval of the mayor, who is the defendant, G. M. Book. 'Middleton, on being arrested, was locked up in the village jail and remained there for some eight hours, he having requested not to be taken before the major until receiving an answer to a telegram which he had sent to his •employer, and during this time a warrant was issued for his arrest and detention. Not receiving such answer, he was taken, on the evening of the same day, before the mayor, who stated to him, in substance, that the best way would be to pay the license fee, which was two dollars, and the fees of the marshal, •.amounting to sixty cents, which sum of two dollars and sixty cents he thereupon paid and was given a receipt for the same, and was thereupon released from custody.

This action is brought to recover damages in the sum of $10,002.60, by reason of such claimed false imprisonment.

While the village of Bloomdale is named as a party defendant, it was released on demurrer and the action proceeded against the mayor and marshal and the bondsmen of the latter, and resulted in a verdict in favor of the defendants on the trial in the court of common pleas.

The plaintiff was engaged in the business of distributing advertising matter throughout the village, which printed circulars contained matter advertising 1 Mello” and included recipes for the use of the same.

The amended petition on which the action was tried avers that the defendants imprisoned the plaintiff and deprived him of his liberty for the period ■ of eight hours, unlawfully and on a pretended charge of violating ordinance No. 122 of the village, but the pleading contains no averment that the ordinance mentioned was unconstitutional, although it became apparent on the trial of the case that the plaintiff was relying on his right to recover damages against the mayor and marshal by reason of 1he unconstitutionality of the ordinance. He did not, however, offer to introduce the ordinance in evidence, and when it was offered in evidence by the defendants, he objected to its reception, and the court, on consideration, sustained the objection, so that the ordinance was not introduced in evidence at any time during the trial of the case. The trial judge took the position that the ordinance not being before the court, it would be presumed to be constitutional, and so stated to the jury.,

In the view we take of this ease we find it unnecessary to determine whether the trial court was right in assuming that the ordinance was a valid and constitutional enactment, because we are of the opinion that under the circumstances disclosed by the evidence in this ease, the village officials, namely, the mayor and the marshal, are not liable to respond in damages in an action for false imprisonment. The evidence shows that they acted in entire good faith; and whether the ordinance was valid or not, it is clear that they believed it was so, and not subject to any constitutional infirmity.

The law provides convenient and appropriate methods for determining the cdnstitutionality of statutes and ordinances, and it by no means follows that a person who has been arrested under an unconstitutional statute or an unconstitutional ordinance may maintain an action for false imprisonment against the officials for such, arrest, where the officers proceeded in good faith and in an honest belief in the validity of the enactment.

It would not be possible to reconcile the decisions of the various courts on this question, but we are convinced, from a careful examination, that the greater weight of authority and the better reasoning are in favor of the position that under the circumstances stated, an action for false imprisonment will not lie.

Many cases are collected in 19 Cyc. 345, under the article “False Imprisonment,” where the eminent author, Mr. Jaggard, recognizing the conflict of opinion, states that the weight of authority. is that the court has jurisdiction to determine the question of constitutionality, and, therefore, that the person making complaint to a magistrate, the magistrate' issuing the warrant and an officer serving process, fair on its face, are not liable.

A case in all respects similar to the one at bar is that of Bohri v. Barnett, 144 Fed. 389, the syllabus of which reads as follows:

-“An action for false imprisonment based on the arrest, con-\3etion and imprisonment of plaintiff for violation of an invalid city ordinance will not lie against the magistrate who tried the cause, the city attorney who prosecuted, the constable who made the arrest, or the person who filed the complaint, where all acted in good faith without malice and in the belief that the ordinance was valid, and the proceedings were regular and the magistrate had jurisdiction of all prosecutions for violations of the city ordinances, which necessarily included jurisdiction to determine the validity of the ordinances. ”

Under the laws of this state the duty of hearing and deciding actions brought for the violation of the ordinances of a village rests in the mayor, and he alone must determine, in the first instance, as to the validity of the ordinance. This was a judicial matter to be determined by him according to his best judgment of the law, and that matter was within his jurisdiction, and surely it would be a harsh rule to lay down that such an officer would be liable to respond in damáges in the event that he should be mistaken in his judgment as to the validity of the ordinance.

I cite on this point also: Rush v. Buckley, 100 Me. 322 [61 Atl. 774; 70 L. R. A. 464]; Brooks v. Mangan, 86 Mich. 576 [49 N. W. 633; 24 Am. St. 137]; Tillman v. Beard, 121 Mich. 475 [80 N. W. 248; 46 L. R. A. 215]; Gardner v. Couch, 137 Mich. 358 [100 N. W. 673; 101 N. W. 802; 109 Am. St. 684]; Tryon v. Pingree, 112 Mich. 338 [70 N. W. 905; 67 Am. St. 424], where an elaborate note may be found; Calhoun v. Little, 106 Ga. 336 [32 S. E. 86; 43 L. R. A. 630; 71 Am. St 254], and Thompson v. Jackson, 93 Ia., 376 [61 N. W. 1004, 1006; 27 L. R. A. 92]. These cases will be found to bear out the principle which has just been enunciated.

The question has been under consideration in some of the courts of this state, and, as illustrating the views expressed, I refer to Wheeler v. Gavin, 3 Circ. Dec. 123 (5 R. 246), a decision of the circuit court sitting in Darke county, holding that under the circumstances existing, an action would not lie against the mayor nor against the parties filing the affidavit. 'A more recent case is that of Williams v. Morris, 32 O. C. C. 453 (14 N. S. 353), holding that the Legislature is presumed to have passed only constitutional laws, and that an arresting officer is not liable for false imprisonment where he acted under a statute which was subsequently declared unconstitutional.

We are in entire accord with the language of the Supreme. Court of Wisconsin in Robertson v. Parker, 99 Wis. 652 [75 N. W. 423; 67 Am. St. 889, 893], where this expression may be found:

“We are content to join in the increasing procession of states that have adopted and are following the more humane and less stringent test of liability in cases of this kind.”

We call attention to 19 Gyc. 338, with the suggestion that the jury may have found under the evidence that the plaintiff by his conduct waived whatever, rights he had, if any, and acquiesced in any claimed irregularities.

Finding no prejudicial error, the judgment will be affirmed.

Kinkade arid Chittenden, JJ., concur.


text:
    CARRIERS.
    [Wood (6th) Court of Appeals,
    October 22, 1913.]
    KInkade, Chittenden and Richards, JJ.
    Toledo & O. C. Ry. v. Harry L. Wilson.
    Demurrage on Car of Coal Refused by Consignee Limited to Rea-' sonable Period. ,
    Where a consignee refuses to accept a car load of freight, the railway company must make disposition thereof within a reasonable time, and a demurrage charge on the car so detained can be made only for a reasonable time.

      Boyle & Lewis, for plaintiff.

      Ora L. Wade, for defendant.
   KINKADE, J.

This action in the common pleas court was begun to recover .an amount claimed to be due the railway company for demur-rage on a car claimed to have been held without being unloaded for a given period of time by the defendant. The railway company sought to recover $64.69 as demurrage. The case was submitted to the court of common pleas on a stipulation of counsel for the respective parties, and the evidence. A jury being waived, the court of common pleas found in favor of the railway company for $14.60 and entered judgment accordingly. This is a proceeding in error to reverse that judgment. The claim is made that the finding and judgment of the court of common pleas is at variance with the stipulations made between the parties at the commencement of the trial, and attention is called to the fact that that stipulation in terms provided that $64.69 was the correct balance due for demurrage, if the defendant was liable.

Upon the hearing of the case here it was stated that the whole matter turned upon the. construction and meaning of this stipulation made at the trial.

The bill of exceptions shows that the case was not only heard upon the stipulations, but upon the evidence as well. It is ' clearly evident from the record that the common pleas court considered tbe stipulations mentioned as meaning that if the defendant was liable for demurrage for the whole period which the ear remained unloaded, then, and in that event, the amount mentioned in the stipulation would measure and determine the amount of the judgment to be entered.

The defendant ordered a car of coal from a coal company, agreeing to pay a stipulated price per ton for the coal f. o. b. ear at the mine. No directions were given by the defendant asi to the route over which the coal should be shipped. The coal was shipped over the Pennsylvania Ry. from the Cambridge mine district in Southern Ohio to Toledo and thence to Prairie De» pot over the Toledo & O. C. Ry. Immediately upon the arrival of the ear the consignee gave the railway company notice, and notified the consignor that he refused the ear, which was done solely on the ground that the freight rate of $1.60 per ton was excessive, the consignee claiming that the proper freight rate, had the car been shipped over a direct line and not around by way of Toledo, would have been but $1 per ton. Correspondence ensued between the consignor and the defendant relative to the disposition of the car. The defendant ai all times refused to accept the car unless a reduction of the freight of $1 per ton was made. The consignor at all times declined to take any steps looking to any further disposition of the car of coal, for the reason that the consignor claimed that the delivery of the car of coal to the common carrier passed the title therein to the defendant, and that thereafter the consignor had no further concern as to what should be done with the car of coal.

. The railway company permitted the car to remain loaded for some sixty-eight days, and then to satisfy its claim for freight at the rate of $1.60 per ton, sold the car of coal, and from the proceeds paid the freight due to itself and the Pennsylvania Railroad, and credited the balance of $3.04 remaining upon its claim for demurrage.

The common pleas court held that the facts I have enumerated, which are not disputed in the record, justified the railway company in taking a reasonable time within which to dispose of the carload of coal that had been delivered at Prairie Depot and declined by the consignee, the defendant, and that for this time a demurrage charge of $1 per day was a proper charge against the defendant.

The court fixed the reasonable time at fifteen days, gave credit upon the claim thus arising against the defendant for the surplus remaining after the application to the payment of the freight, of the money received for the coal at the sale, and entered judgment for the balance in the amount I have stated.

The position taken by the railway company that it had the right to leave the car at Prairie Depot as long as it'saw fit to-do so, whether that be a reasonable time for the disposition of it or not, and notwithstanding the fact that it knew definitely upon its delivery there that the car would not be accepted, and then collect demurrage for the full time that the car should be left there, does not seem tenable.

"We think, upon the whole record, the action of the trial court was correct, and the judgment of the common pleas court will be affirmed.

Richards and Chittenden, JJ., concur.


author: GRANT, J.

text:
    CARRIERS — DEAD BODIES — UNDERTAKERS.
    [Cuyahoga (8th) Court of Appeals,
    May 14, 1917.]
    Grant, Carpenter and Leighley, JJ.
    Adams Express Co. v. Deutsch.
    1. Express Company not Liable for Failure of Shipping Undertaker to Secure Deposit for his Charges in Preparing Corpse for Express Transportation.
    An express company is a commorí carrier and, being prohibited by interstate commerce regulations from shipping corpses, C. O. D. unless deposit is made' therefor at destination, express office, is not liable for failure to collect .amount of undertaker’s bill accompanying the body, especially since -the undertaker, shipping the body, is equally liable with the express company in not securing the deposit to meet his charges.
    2. Corpse Means Body in Coffin, not Body, Shroud and Coffin Separately.
    A corpse accepted by a common carrier for transportation means a dead body in its coffin. To segregate the one from the other violates ordinary thought and offends against decency and health; hence evidence, the effect of which is to show that a corpse' encased in a coffin was dresséd in a shroud and cast upon an express company transporting it an obligation to strip the body of its cerements and put them on the market in fulfillment of an assumed obligation to realize on an undertaker’s hill therefor sent C. O. D., is inadmissible.
    [Syllabus approved by the court.]
    ERROR.

      Squire, Sanders & Dempsey, and E. B. Diehm, for plaintiff in error.

      Jos. L. Stern, for defendant in error.
   GRANT, J.

Tbe following are the facts which we deem material in the review of this cause: The Adams Express Co. is a common carrier of property for hire.

The intestate of the plaintiff below delivered to the express company a human corpse for shipment to Providence, R. I., in a sealed ease or casket. The consignment was thus sent C. 0. D., and the accompanying bill to be collected and secured by the corpse, was $85.

The bill was not paid by the consignee at Providence.

The transportation eharge was paid by the shipper. After some negotiations between the parties the corpse was at last delivered to the consignee at the point of destination, notwithstanding his refusal to pay the bill.

Whereupon the intestate named commenced this action in the court below to recover the amount of the bill which accompanied the body as for a violation of his instructions to the company in failing to collect at the end of the journey, the theory of the suit being that such failure was in breach of the contract of carriage.

There was a recovery by the plaintiff below, and to reverse that judgment this proceeding is prosecuted here.

Two assignments of error are made and argued.

The first of these has to do with the admission of certain testimony, the only function of which as the defendant company contends was to vary the unambiguous terms of a written contract, but which, as his adversary says, was allowable to explain that separable part of the instrument which was a receipt merely and not a contract. Such being the point here in dispute, the testimony received over objection was to the effect that the corpse in question was encased in a coffin and dressed in a shroud. The purpose of such evidence seems to have been, if we understand the drift of it- — and it could not well have had any other — ■ was to cast on the express company some sort of an obligation to strip the body of its cerements and put these on the market in fulfillment of its assumed C. O. D. obligation to realize on the bill.

There was a time when a certain individual — perhaps a forbear of some in our day — stood on the bridge at Venice and made loans on living human flesh and other collateral, but his security at least had the merit of being Uve paper; the subject, though serious for the debtor, had not the grave aspect of the question before us.

We take the long and the short of the matter to be this: A corpse, to the common apprehension — and rightly so, too — means a dead body and its coffin. To segregate the one from the other would do violence to ordinary thinking, just as much as it would offend against decency and health. To suggest that it would be the right, and much less the duty, of one having a corpse in that sense in his possession to subject it to the indignity of being stripped of its garments and exposing these to sale at public outcry or vendue, would, it should seem, put the one who did it below the condition of the Rialto man and make him a stranger to shame’s comparatively honorable blush.

And the futility of the thing also -would be its condemnation. The woman who bought the second hand gravestones did so because perhaps her daughter might marry a man of that name and then, at son-in-law’s wished-for death, she would, to use her expression — “be right in town.”

It is matter of usual observation that coffins in which bodies are conveyed to crematories are not brought back for sale or further use, but are themselves burnt.

In cases that may easily be imagined, the use of second hand coffins would be a serious menace to public health and safety. For aught that we know to the contrary, the corpse may have been that of Lazarus after four days.

Upon these considerations, and assuming but not finding, that tbe testimony in question would not be obnoxious to the disability of working a variation of the terms of a written instrument, we are of the opinion that, nevertheless, it was improperly received in evidence and that its admission was manifest error.

The remaining point argued is that the judgment under review is contrary to law.

We shall dispose of this question much more briefly than do the briefs.

It is in evidence in the case that the interstate commerce commission had promulgated, and there was in consequent force, at the time of the shipment of the corpse to Providence, an official tariff or classification, which was as follows: “Corpses must not be sent C. O. D., nor with charges to collect, unless the money to pay the C. 0. D. bill, and charged for transportation, is deposited with express agent at destination, before shipment, and in such cases destination agent shall telegraph agent at shipping point as to the amount of money placed in his hands to cover the charges or to cover the C. 0. D. bill, or both, as the case may be. ’ ’

This tariff classification had the force and effect of a statute, the existence and terms of which Deutsch was bound to know. He was presumed to know also that the express company as a common carrier was not at liberty to depart from its requirements, and that if it did so it would be liable to certain penalties or penal consequences. Yet Deutsch did not observe the condition annexed to his shipment in this respect and did not see to it that the deposit required at the other end of the route was made, although there is some contradictory testimony in the record as to a promise or undertaking on the part of some one to make provision in that regard.

We do not consider it material whether there was or not any negotiations with the agent of the express company looking to the shipper being in this instance relieved from the operation of the tariff requirement on the assurance of somebody that the money would be forthcoming when the corpse reached its destination. It is enough to say that there was no duty resting on the company in that respect. The duty of seeing that the deposit was provided was that of Deutseh alone.

The express company is a common carrier; not a collection agency. Whether Deutseh got his pay or not was his concern; not that of the express company.

Deptsch disobeyed that which as to him and in that case was the equivalent of positive law. If the express company was itself at fault in shipping the corpse without having evidence of the deposit at the other end of the route — and we are not saying that it was — , that fact did not exonerate Deutseh from an observance of the tariff and is quite beside the question.

We 'are of the ' opinion that the courts should leave Mr. Deutseh where he left himself and not aid him in extricating himself from that position. (

Upon the proved if not admitted facts of the case, we think the law was with the express company, for which, and not for the plaintiff below, judgment should have been given.

For the errors found the judgment under review is reversed and the cause is remanded to the municipal court of Cleveland for such proceedings there as may be in accordance with the law of the case.


author: RICHARDS, J,

text:
    SALES.
    [Williams (6th) Court of Appeals,
    November 10, 1916.]
    Richards Chittenden and Kinkade, JJ.
    Bell Brothers v. Robinson et al.
    Return of Stallion Condition Precedent to Recoup Damages for Breach of Guaranty.
    A contract for the sale of a stallion guaranteed that he should be a “satisfactory sure breeder,” provided he keeps in as sound and healthy condition as he now is and has proper care and exercise, and the contract further provided that in case of a breach the seller agreed to take the stallion back and the purchaser agreed to return him and accept another of equal .value. Held: That in the event of a breach the duty to return the stallion was a condition precedent to the right to recoup damages in an action brought to recover the purchase price.
    [Syllabus by the court.]

      ERROR.

      R. L, Starr, D. A. Webster and Ross W. Fwnck, for plaintiffs in error.

      C. A. Bowersox and Edward, Gaudern, for defendants in error.
   RICHARDS, J,

On December 13, 1911, A. N. Robinson & Son purchased of Bell Brothers a percheron stallion named Idem, and as a part of the contract a written guaranty was made and delivered, reading as follows:

‘ ‘ Guarantee.
We have this day sold the Percheron Stallion ‘Idem’ No. 78705 (82891) to A. N. Robinson & Son of Bryan, Ohio, in consideration of the sum of Sixteen Hundred Dollars, and we guarantee the said stallion to be a satisfactory sure breeder, provided the said stallion keeps in as sound and healthy condition as he now is and has proper care and exercise.
If the said stallion should fail to be a reasonably sure breeder with the above treatment, we agree to take the said stallion back, and the said A. N. Robinson & Son agrees to accept another imported Percheron Stallion of equal value in his place, the said stallion ‘Idem’ No. 78705 (82891) to be returned to us at Wooster, Ohio, in as sound and healthy condition as he now is by April 1st, 1913.
Signed: Bell Bros.
Accepted: A. N. Robinson.
Dated at Wooster, Ohio, this Thirteenth day of December, 1911.”

At the same time the purchaser executed and delivered to Bell Brothers two cognovit notes, each in the sum of $800, in payment of the purchase price of the stallion. The notes not being paid, two several actions were brought on them and judgment on each entered pursuant to the authority contained in the instruments. Subsequently Robinson made due application to the court in which the judgments had been rendered to have the same suspended or vacated, setting up certain claimed defenses to the promissory notes, and such proceedings were had that these judgments were suspended or vacated and the defendant Eobinson let in to make such defenses as he had. The two actions were consolidated and the defendant filed an answer, and, subsequently, an amended answer and cross-petition.

In this pleading he' sets up the guaranty and avers its breach and ensuing damages, and further avers by way of counterclaim, that he maintained a suitable stable and kept and attended said stallion for breeding purposes, and that by reason of the failure of the stallion to comply with the terms of the guaranty he was damaged in the sum of $1800. He further avers as a second counterclaim that the stallion was not a satisfactory sure breeder, nor a reasonably sure breeder, as guaranteed, and that had he been as warranted the defendant would have received for the services of the stallion the sum of $2700 and more, and that by reason of the failure of the stallion to comply with the terms of the guaranty he was damaged ih the sum of $1800. The defendant in his pleading further sets up that after the judgments were taken on the cognovit notes executions were issued thereon and levied upon a certain other stallion owned by him, and that by direction of the plaintiffs the same was taken possession of by the sheriff and placed and kept in a livery stable for a long period of time, and was thereupon sold to pay the expenses of 'his keeping. He avers that by reason of these facts he has been damaged in the sum of $1100, for which he asks judgment.

The trial resulted in a verdict and'judgment in favor of the defendant, A. N. Eobinson, the jury finding against the plaintiffs and further finding that the defendant Eobinson was entitled to recover upon his amended answer and cross-petition the sum of $843.83. This proceeding in error is brought to reverse this judgment, numerous errors being assigned.

The vital and controlling fact in this case is the written contract of guaranty entered into between the parties, and their-rights depend very largely upon the proper construction to be placed on that instrument. It is to be expected that much diversity in language will be found in the various guaranties which, parties make in the sale of property, and because of this diversity of language various decisions have been rendered which at first sight may appear to be in conflict, but which on a closer examination are seen to turn upon the language of the particular instrument of writing under consideration by the court. The written instrument in this case guarantees that the stallion shall be a “satisfactory sure breeder, provided the said stallion keeps in as sound and healthy condition as he now is and has proper care and exercise.” The contract of guaranty further provides that if the stallion should fail to be a reasonably sure breeder with the above treatment, “we agree to take the said stallion back, and the said A. N. Robinson & Son agrees to accept another imported Percheron Stallion of equal value in his place, the-said stallion ‘Idem’ * * * to be returned to us at Wooster,. Ohio, in as sound and healthy condition as he now is by April 1, 3913.” This instrument must be supplemented by the fact-that evidence was introduced tending to show a subsequent oral agreement between the defendant and Mr. Zogg, a representative-of the plaintiffs, by which the guaranty was extended for another year or another season, and some evidence was-offered tending to show that the horse was tendered back to Mr. Zogg. The-plaintiffs deny that such agreement was made and deny that Mr. Zogg had any authority to make any such agreement or to accept a tender of the horse. The evidence further discloses that the stallion was taken sick and died suddenly on or about July 8, 1914. It is not claimed that the stallion was ever returned by Robinson to Bell Brothers at Wooster, or at any other place.

The plaintiffs insist that, even if the .evidence disclose a breach of the guaranty, the defendant can not recover any damages, because of the failure to return the stallion to Wooster- and to accept another as provided by the terms of the contract. In the absence of a contract fixing the remedies of a purchaser-of property for a breach of guaranty, the law itself provides-the remedies to which the purchaser may resort for such breach. No doubt, however, can exist that the parties to a contract of sale, accompanied with a guaranty, have full power to prescribe what course shall be pursued in the event of . a breach. The law gives to parties competent to contract as full authority t© agree •on the course to be pursued in the event of a breach of the ¡same, as it does to make the contract of sale itself, and, if the ■contract provides conditions to be performed by the buyer in ease of a breach, the buyer must comply with such conditions before he can claim damages by reason of the breach. This would seem to be an elementary proposition of law and is sustained alike by reason and authority. Authorities which hold 'that the buyer has an option to pursue either the remedy named in the contract or other remedies allowed by law in the absence1 of contract, base their conclusions on contracts that are construed to grant an option to the purchaser. Certainly if the-terms of the guaranty are such that the purchaser, in the event of a breach, is not required to return the property, but has an option so to do, then the return of the property would not be a prerequisite to the maintenance of his' claim for damages, the principle is well stated in James v. Bekkedahl, 10 N. Dak. 120 [86 N. W. Rep. 226].

A .good illustration of the rule may be found in the case of Oltmanns Bros. v. Poland (Texas), 142 S. W. 653. That was a ease involving a guaranty on the sale of a stallion that he should be a satisfactory and sure breeder, provided he had proper ¡care and exercise, and if he failed to be satisfactory and a sure breeder with the abovte treatment, the seller agreed to take the rstallion back and give to the purchaser another stallion of equal -value, provided he was returned to the seller’s barns in as sound rand healthy condition as at the time of sale. Unlike the case at bar, the contract did not specifically state that the purchaser agreed to accept another stallion, but nevertheless 'the court construed the course to be pursued, in the event of a breach, as exclusive, and denied relief to the purchaser without a return of the horse within the time specified. In view of the provisions of thiei guaranty in the instant case, by which the sellers “agree to take the said stallion back,” and Robinson “agrees to accept another,” there would seem to be no room for doubt as to the interpretation to be placed on the contract under review, in the -event of a breach.

The principle is further illustrated by the case o.f Standing Stone Natl. Bank v. Walser, 162 N. C. 53 [77 S. E. 1006]. Cases which hold th'e buyer has an election of remedies are easily reconcilable when careful attention is given to the language of the guaranty employed in such cases. For instance, the contract in the ease of Love & Co. v. Ross, 89 Ia. 400 [56 N. W. 528], provided that in the event of a breach the purchaser-“could” return the stallion. That language, of course, only gives the purchaser the option so to do and does not deprive him of any other remedy.

The contract in the case of Hefner v. Haynes, 89 Ia. 616 [57 N. W. 421], provided that if the horse did not give satisfaction if" “may” be exchanged for another, and this, of course, was held to give an option to the purchaser.

The contract in the ease of Eyers v. Haddem, 70 Fed. 648, was construed by the court to give an option, of remedies to the purchaser and it was held that the terms of the contract Avere such as not to make it obligatory upon the purchasers to return the horse. The court- uses this language in the course of the opinion (page 651) : “It only says that upon his delivery to the sellers without cost, if as sound and in as good condition as when purchased, the sellers will replace him Avith another horse. Tt is only by construction that any obligation can be put upon the purchasers to return the horse.” The difference between that case and the one at bar is apparent when it is remembered that Robinson “agrees to accept another” stallion. See also Kemp v. Freeman, 42 Ill. App. 500, 501; Rowell v. Oleson, 32 Minn. 288 [20 N. W. 227], and McCormick Harvesting Mach. Co. v. Fields, 90 Minn. 161 [95 N. W. 886].

The difference between the case last cited and the one now under consideration is apparent when it is noticed that in the Minnesota case the provision was applicable only in the event that the machine did not Avork well, and, as stated by the court on page 164, the provision had no reference to the manner in which the machine was made or the material used or its durability, white in the case now under consideration the provision is specifically made as broad in terms'as the language of the guaranty itself.

Many other cases might be cited, but it is unnecessary. The cases are collected and reviewed and the distinctions indicated in a note to Wasatch Orchard Co. v. Morgan Canning Co. 12 L. R. A. (N. S.), 540 [32 Utah 229; 89 Pac. 1009].

The language of the contract relating to a return of the stallion in the event of a breach of the warranty is imperative, and, in the absence of a compliance by the purchaser with the provision for a return of the,stallion within the time limited, he can not avail himself of the breach when an action is brought to recover the purchase price. The rule as thus announced is clearly enunciated in 35 Cyc. 437, 438.

It is not important to determine the extent of authority invested in Zogg as a representative of plaintiffs, for, if he had full authority, and if the contract for an extension of time was made as claimed by the defendant, still the horse was not returned within the time as thus extended.

On the trial of the case the defendant assumed the burden of proof, and having introduced his evidence and rested, the plaintiffs introduced their evidence and rested. Thereupon the plaintiffs moved the court to instruct the jury to bring in a verdict for the plaintiffs, which motion the court, on consideration, overruled. This motion could not properly have been granted unless on all the issues involved the plaintiffs were entitled to a directed verdict. For the reasons already given the plaintiffs would have been entitled to a directed verdict in so far as the claims set forth in the petitions and the first and sec- and counter claims of the defendant are concerned, but it could not be said, as a mattei] of law, that the defendant was not entitled to any damages on account of the issuance and levy of executions on the other stallion and his sale to pay the cost of his keeping' while so held under levy. The court, therefore, committed no error in overruling the motion for a directed, verdict. This issue, however, seems to have been given but little attention during the trial of the case. Evidence was offered tending to show that much of the long delay which ensued after the levies and before the sale was at the instance and request of the defendant Robinson, and of course he would not be entitled to damages resulting from any delay which he himself brought about. "Wh ether there was any delay and ensuing damage for which the plaintiffs are liable should be left to the jury under appropriate instructions from the court. On a retrial of the case the only, issue for submission to the jury would be the issue arising on this branch of the case.

For the reasons indicated, the judgment will be reversed and the cause remanded for a new trial.

Judgment reversed, and cause remanded,

Chittenden and Kinkade, JJ., concur.


text:
    HIGHWAYS — MOTOR VEHICLES — NEGLIGENCE.
    [Licking (5th) Court of Appeals,
    March Term, 1917.]
    Powell. Houck, and Shields, JJ.

      W. S. Gregg et al. v. Albert B. Clapham et al.
    "1. Unlawful Rate of Speed Question for Jury in Action for Injuries From Motorcycle Colliding With Road Barricade.
    In an action for injuries resulting from a motorcycle colliding with an obstruction in the road, placed there by contractors as a barricade while the road was being improved, it is not error to charge the jury that if the machine “was being driven at a higher rate of speed than twenty miles an hour at the time of the accident, then the boys so riding and driving the machine were violating the laws of Ohio, and such act would be evidence of negligence on their part, and should be considered by you on the subject of contributory negligence.”
    :2. Negligence of Operator of Motorcycle Imputed to Passenger in Collision with Road Barricade. 1
    Nor was it error to refuse to charge that “if you find from the evidence that the witness Beaver, in the management of the motorcycle, did not use ordinary care and that his want of ordinary care was the proximate cause of Leon Clapham’s injuries, then the said Leon Clapham is charged with the negli- ' gence of said Beaver, and there can be no recovery in this action.”
    3. Jury Determines Fact of Closed Road Effected by Contractor’s Barricade.
    Whether or not the barricade which had been placed across the road made it a closed road, was a question of fact for the jury, to be determined in the light of the surrounding circumstances and the law applicable to the case.
    [Syllabus by the court.]

      ERROR.

      Marshall & O’Neil and Fitzgibbon, Montgomery & Black, for plaintiffs in error.

      Phil. B. Smythe, for defendant in error.

      For previous opinion in the same case, see Brownfield v. Clapham, 37 O. C. C. 424.

   HOUCK, J.

The parties here stand in the reverse order to that in which they stood in the court below. The petition, in substance, averred that the plaintiff was the father of one Leon Clapham, who was under eighteen years of age and who lived with and was supported by the plaintiff, and the plaintiff was entitled to the services of the said Leon Clapham; that on the 13th day of July, 1913, the board of county commissioners of lucking county, Ohio, was engaged in repairing a certain public road running from Neivark to Granville in said county, by covering the surface of said road with cement or concrete; that on said date the defendants, W. B. Gregg and IT. D. Fletcher, were partners, and as such partners were engaged in performing the work of said repair under a contract with said board of county commissioners, whereby said board paid said Gregg and Fletcher a certain definite sum of money for furnishing the materials and the labor necessary for said repair; that on said 13th day of July, 1913, said road was open for travel and was on said date, and for a long time prior thereto, in general use by the traveling public with the knowledge and consent of said defendants; that on said day the defendants had stretched a wire across said road and about three feet above the surface thereof, and said wire was in such a position on said day, and that said wire was not marked or located by any signal or device to warn passengers on said road that the same was in such position, and said wire could not be seen by persons in vehicles on said road; that on said day, while said Leon Olapham was lawfully traveling on and over said road on a motorcycle, and without any fault or negligence on his part, he ran into and against said wire and was thrown with great violence to the surface of said concrete, suffering thereby a broken nose, a broken jaw, and a fracture of his skull, and was otherwise bruised and injured; that by reason of said injuries the plaintiff was thereby deprived of the services of said Leon Clapham, to his damage in the sum of one thousand dollars.

The plaintiff further alleges in his petition that he had expended the sum of $367.25 in the necessary and proper care of the said Leon Clapham by reason of said injuries, and that said injuries were caused by the negligence and carelessness of the defendants in stretching said wire across said road and leaving the same unguarded, and in not providing some method of warning travelers of its presence in said location. That the injuries complained of were without fault on the part of said Leon Clap-ham and were caused by the negligence of the defendants, and prayed for judgment against said defendants in the sum of $1,367.25.

The answers filed by said defendants were in the nature of general denials to all of the material allegations contained in plaintiff’s petition, and further alleged that whatever injuries resulted to the said Leon Clapham were caused by his own fault and negligence and not by the fault of the defendants, or either of them.

The cause was submitted to a jury and a verdict returned in favor of the plaintiff in the sum of $300.75. The usual motion for a new trial was filed, heard and overruled, and a judgment entered on the verdict. A bill of exceptions was prepared, containing all of the testimony and evidence offered at the trial below, together with a petition in error, and was filed in this court for review.

Numerous grounds of alleged error are set forth in the petition in error, but we do not deem it necessary to discuss.any of the alleged errors, save and except those urged by counsel for plaintiff in error in oral argument.

As one of the grounds for a reversal of the judgment below learned counsel for plaintiff in error insist that Leon Clapham was, at the time when he received the injuries complained of, a trespasser. We have examined the bill of exceptions with reference to this alleged claim and we are free to say that from the proven facts upon this question, and applying the law applicable thereto as to who is or who is not a trespasser, we are bound to and do reach the conclusion that this claim of alleged error is not well taken.

It is further urged that the trial judge refused to give a special request offered by defendants below with reference to Leon Clapham being guilty of negligence per se which resulted in the injuries he received. "We have examined the record, but have been unable to find any such written request so refused by the trial judge. On page 312 of the bill of exceptions, we find that counsel for defendants below requested the court before argument, in writing, to give to the jury the following instruction, which was given by the court:

“If you find from the evidence that the motorcycle was being driven at a higher rate of speed than twenty miles per hour at the time of the accident, then the boys so riding and driving said machine were violating the laws of Ohio, and such act would be evidence of negligence on their part and should be considered by you upon the question of contributory negligence.”

This charge as to the law was given at the request of the defendants below, and we do not see how they can now complain. We think as a proposition of law it is sound and applicable to the proven facts in the case at bar.

Counsel for plaintiffs in error, as another ground for a reversal of the judgment in this case, insist that the trial judge was in error when he refused to charge upon the subject of imputed negligence, as contained in the special request found on page 316 of the bill of exceptions, which was requested to be given by the defendants below, and which the court refused to give. This special request reads as follows:

“If you find from the evidence that the witness Beaver, in the management of the motorcycle, did not use ordinary care, and that his want of ordinary care was the proximate cause of Leon Clapham’s injuries, then the said Leon Clapham is charged with the negligence of said Beaver, and there can be-no recovery in this action. ’ ’

We do not feel it necessary to discuss at length this proposition of law. We think, upon its face, it -clearly shows, in the light of the established facts in this case, that if the court had given this charge it would have been improper. We are free to say that in our opinion the court committed no error in refusing to give this request to the jury.

It is strenuously urged by the plaintiff in error that the road in question was not opened for public travel, but that it was so barricaded and protected by the defendants below that it was not an open road, hut was, in fact and in law, a closed road. The question as to whether or not the road at the time of the injury complained of was or was not a closed, road was a question of fact to be determined by the jury in the light of the •evidence offered upon this subject and the law applicable thereto, as charged by the court. The jury having passed upon this fact, and found adversely to the defendants below, from our examination of the general charge and propositions of law submitted to the jury bearing upon this question we are bound to and do hold that there is no prejudicial error in this respect in the record. The general charge of the court covers every phase of the case at bar, and, as we view it, was a clear and concise statement of each and all of the propositions of law applicable and pertinent to the established facts, and covered each and all of the issues raised by the pleadings in the case.

Upon our examination of the record in this case we can reach but one conclusion, and that is that there is no error contained therein which is in any way prejudicial to the substantial rights of the plaintiffs in error, and, therefore, the judgment of the common pleas court is affirmed.

Powell, J., concurs.