text:
    COLLEGIATE ENDOWMENT FUNDS EXEMPT FROM TAXATION.
    [Circuit Court of Greene County.]
    The United Presbyterian Theological Seminary of Xenia, Ohio, v. Asa Little, Treasurer of Greene County, Ohio.
    Decided, March Term, 1904.

      Endowment Funds — For the Support of a Theological Seminary — Constitute a “Credit” under Section 2732 — And are Exempt from Taxation — Such an Institution a “Purely Public Charity” under the Ohio Constitution.

    1. An institution for the education of young men for the gospel ministry, and open to all, is a “purely public charity,” within the meaning of Section 2, Article XII of the Constitution of Ohio.
    2. The endowment fund of such institution, which is loaned, and Lhe interest used solely for the salaries of the professors and expenses necessarily incident to such educational work, is a “credit” within the meaning of Section 2732, Revised Statutes, and is exempt from taxation.
    Dustin, J.; Sullivan, J., and Wilson, J., concur.
    Appeal. Demurrer to petition.
   The plaintiff is an incorporated institution for the education and training of young men for the ministry of the gospel, open to persons of any sect or creed, but under the control and management of the Synods of the United Presbyterian Church of North America. It has an endowment fund of $77,590, which the auditor of said county placed upon the tax duplicate, and upon which the defendant, the treasurer, is threatening to collect the sum of $2,444 taxes.

Plaintiff brought this action in the common pleas court to restrain the collection of said tax, alleging itself to be an institution of purely public charity, supported by the income of said fund, loaned for said purpose, and that no part thereof has been, or is used for private profit; and that the placing of said sum upon said duplicate by the auditor was unlawful, and that the threatened collection of said illegal tax by said treasurer would be a great and irreparable injury to said plaintiff.

To this petition the defendant filed a general demurrer, which was sustained by the court below, and the petition dismissed with costs.

Plaintiff; appealed, and the ease is before us on the merits of the general demu rer.

Two questions arise:

1st. Is the plaintiff, under its allegations of fact, as to its objects and purposes, really an “institution of purely public charity,” within the meaning of Section 2, Article XII of the Constitution of Ohio?

This is conceded by counsel; but that concession not being conclusive of the law, we are cited to authorities which seem to settle the matter beyond controversy.

Gerke v. Purcell, 25 O. S., 229, holds that, “A charity, in a legal sense, includes not only gifts for the benefit of the poor but endowments for the advancement of learning,” and that—

“Schools established by private donations, and which are carried on for the benefit of the public, and not with a view to profit, are institutions of purely public charity within the meaning of the provisions of the Constitution which authorize such institutions to be exempt from taxation. ’ ’

To the same effect are the holdings in Myers v. Aikens, 8 C. C., 228; Sowers v. Cyrenius, 39 O. S., 29; Mannix v. Purcell, 46 O. S., 102; Davis v. Cincinnati Camp Meeting Ass’n, 57 O. S., 257, and McIntyre’s Poor School Case, 9 Ohio, 28.

2d. Is this fund, the principal of which is not touched, but is loaned, and the interest only used for the purposes of the institution, exempt from taxation?

Upon this question issue is taken.

Defendant claims that while the fund itself, if reduced to money and kept in the treasury for use as needed, would not be taxable; the moment it is placed at interest and becomes a source of profit, it is analogous to the leasing of real estate for business purposes, and, following the doctrine of Cincinnati College v. The State, 19 Ohio, 110, it becomes taxable.

In that ease it appeared that the Cincinnati College borrowed money to improve its real estate, and,' in order to obtain a revenue therefrom to repay the borrowed money, leased the lower floor of the building to business men for stores; the purpose ultimately being, after payment of the debt, to use the revenue from the stores for the educational work of the college.

Under that state of facts the court held:

“The property of literary and scientific societies is only exempt from taxation when used exclusively for literary and scientific purposes. If used for other purposes it is liable to taxation, although the proceeds are in future to be applied for the promotion of literature and science.”

Inasmuch as the rental of real estate only was involved, the case was necessarily decided upon a construction of the third subdivision of the act then in force on the subject (44 O. L., 86), which included in the property that should be exempt from taxation, “All buildings belonging to scientific, literary, or benevolent societies, used exclusively for scientific, literary, or benevolent societies, together with the land actually occupied by such institutions, not leased or otherwise used with a view to profit,” etc.

Under that state of the law, and the admitted facts, the decision seems to have been highly just. But the learned judge who rendered the opinion, not satisfied with the undoubtedly correct conclusion to which the court had arrived as to subdivision three of the act in question, ventured to go beyond the single question then before that tribunal, and gave his individual views of what would be the construction of sub-division four of the act, which exempted “All moneys and credits belonging exclusively to universities, colleges, academies, or public schools, of whatsoever name, or to religious, scientific, literary or benevolent societies, and appropriated solely to sustaining such institutions of societies, ’ ’ etc., and said:

“Whilst the money is in the fund of the institution, to be used solely to meet its expenditures, it is making nothing; it is withdrawn from the common business of life to be used solely to effect the object of such institution. But should the trustees of the society use such money in business, either investing it in property, or loaning it at interest, the property thus purchased, or the money thus loaned, would be liable to taxation as much as any other property or money at interest, no matter in whose hands it might be. As we have before intimated, the law applies to the property as it finds it in use, and not to what may be done with its accumulations in future.”

But this construction of sub-division four is a mere dictum, and wholly obiter, as is expressly conceded by the judge, since he had previously stated that the third sub-division was “the only one that * * * could be supposed to have any bearing on this ease.”

We, therefore, are not bound by it as an expression of the law by the Supreme Court, and are free to give our own views upon the question, which are, that the word “credits,” in the sixth sub-division of the statute now in force on the subject, and known as Section 2732, Revised Statutes, and providing for the exemption of “All moneys and credits to sustain, and belonging exclusively to said institutions,” is broad enough to cover an endowment fund loaned to outside parties for the interest it may produce.

Such a fund when loaned can not better be defined than to call it a “credit,” and such we believe was the purpose of the Legislature in so using it.

Any other interpretation would seem to put a premium on unthrift, and would be in direct conflict with the teachings of the parable of the servant who hid his talent in the earth, instead of putting it to the exchangers, and was rebuked for his slothfulness and wickedness (Matthew xxv, 26).

We also think it would be contrary to the policy of the state to hold otherwise.

The ordinance of 1787 announces as the policy of the North- - west Territory, that “Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. ’ ’

The Constitution of 1802 reasserts this policy, and emphasizes it by introducing the word “essentially” before “necessary,” making it read, in Article VIII, Section 3, “Religion, morality and knowledge being essentially necessary to good government, ’ ’ etc.

And the Constitution of 1851, Bill of Rights, Section 7, in similar, but somewhat less felicitous- language, makes the- same announcement.

G. H. Kyle and G. C. Shearer, for plaintiff.

Charles Howard, for defendant.

The consequence has been that a large number of educational institutions have been founded and liberally endowed, upon the faith of this wise state policy, and up to the present ease no attempt has been made, so far as the court is aware, to place the burdens of taxation upon them, except as to real estate diverted from educational use.

Such a course would, in our opinion, be suicidal, and has never been contemplated by the Legislature. It would ruin one of the main sources of our power and influence as a state, and relegate the commonwealth to a less enlightened age.

Entertaining these views, therefore, as to the true construction, of the statutes, and the policy of the state, the demurrer to the petition will be overruled.


source: Caselaw Access Project

license: Public Domain

text:
    NEGLIGENCE IN RAISING HEAVY OBJECT.
    [Circuit Court of Huron County.]
    Lake Shore & Michigan Southern Railway Co. v. Rose Whidden, Administratrix.
    Decided, 1901.

      Negligence — Oral Rules Governing Work in Shops — Dangerous Method Adopted by Servant for Doing Work — Defective Appliance — Negligence and Injury Without Casual Connection — Assumption of Risk —Question to Expert Witness Need Not State Entire Case — Exculpatory Evidence Necessary to Remove Presumption of Contributory Negligence — Charge of Court.

    1. In questioning an expert witness as to whether a certain method of doing work would be safe, it is not necessary to state the entire case in one question.
    2. A presumption of contributory negligence arises where there were two ways of doing a piece of work with reasonable dispatch, one absolutely safe and the other not, and the person injured pursued the latter method; and to remove such presumpion requires exculpatory evidence.
    3. Where one has used a certain appliance frequently for a long period, he may fairly be presumed to know its weakness, if it has any; and likewise if he is familiar with fresh paint he may be presumed to know that it renders a surface slippery.
    4. A claim that the master was negligent in assigning two instead of three men to do a piece of work will not avail where there was no casual connection between the alleged negligence and the injury sustained by one of the men, nor where the risk was assumed by the men voluntarily and with full knowledge of the danger involved.
    5. A charge to a jury is misleading when it singles out different acts as not sufficient alone to entail liability; it should not attach undue imporance to any particular items of evidence, and the rules stated should be not only correct in the abstract but applicable to the issue in hand.
    Mooney, J. (sitting in place of Hull, J.); Haynes, J., and Parker, J., concur.
    Heard on error.
   In the court of common pleas Rose Whidden, administratrix, etc., as plaintiff, filed her petition and amended petition against the Lake Shore & Michigan Southern Railway Company, defendant, and therein alleged, in substance, that on June .17, 1897, her intestate, William Whidden, was in the employ of the Lake Shore & Michigan Southern Railway Company, in the shops of that company in this city, and that on that day he was called from his tank upon the floor of a locomotive tender; that in the performance of that work but two men were engaged, and that the appliances used for lowering the tank was a lever jack; that at the time in question there was no rule requiring the presence of any one to superintend the doing of the work, and that not enough men were employed in and about the doing of it to secure safety to the persons so engaged; that while so engaged, by reason of the want of a rule that should have been made by the railway company requiring three persons to be present, by reason of the absence of a superintendent, or one to oversee the work, by reason of the appliances used which were not suited to the work to be done, and by reason of the fact that the bottom of the tank had been recently painted, which fact was known to the railway company and not known to William Whidden, and while so engaged the jack slipped from under the tank and it fell upon the head of William Whidden and injured him so that he died, and the prayer is for a recovery of damages in this cause of action in the sum of ten thousand dollars.

To the petition and amended petition constituting this cause of action, there was filed by the defendant named, an answer in which it is first denied, in substance, that the defendant was guilty of any negligence as averred in the petition; and then as an affirmative defense it is charged that whatever injury occurred to the plaintiff’s intestate was due or was contributed to by negligence of William Whidden himself; and next it is charged that at the time of his entering into the employ of the company he signed a written contract by the terms of which he agreed to inspect all appliances that might be used in any of the duties, to the discharge of which he might be called, and that he would report any defect or insufficiency of such appliances to the company. He also further agreed that he would not permit an order or direction of any superior officer to prevent him from taking time to make such inspection, examination, or to make such report.

For a third defense it is substantially averred that if tbs plaintiff was injured as alleged, it was due to the risk assumed in the employment, or in the discharge of the duties about which he was engaged.

The plaintiff, by way of reply, denies all three of these substantive or affirmative defenses set out in the answer, and upon the issues thus joined the case was tried to a jury, which resulted in a verdict for the plaintiff.

A motion for a new trial, one of the grounds of which was that the verdict was not sustained by sufficient evidence, was filed and was overruled. A bill of exceptions embodying all the evidence, requests to charge, the action of the court thereon, and the charge as given by the court, was filed and now error is prosecuted here by the defendant below to reverse this judgment.

The errors assigned are: There was error in overruling -the motion for a new trial; that the verdict and judgment are against the weight of the evidence, and not sustained by sufficient evidence; that there is error in the admission and rejection of evidence to the prejudice of plaintiff in error; that there is error in the refusal of the court to charge as requested by defendant below; and also error in tbe granting of tbe requests of the plaintiff below to charge before argument, as also in the general charge, as given.

The number of exceptions that have been called to the attention of the court are very great, and it will not be possible within any reasonable time to advert to each singly.

We may say, with reference to the objections to the evidence, that we find, except in a single instance, no valid ground of objection and exception by the plaintiff in error.

The question most made was as to the completeness of the question that was put to several witnesses called as experts, where they were asked: “Would it be safe for two persons to be assigned to do this work; would it be safe to use a lifting jack of the kind exhibited to the jury, in doing the work in the manner in which it was agreed by witnesses on both sides that the work was done?”

It is objected, to that question, that it was not stated: “Would it be safe for a man whose head was under the tank at the time, or would it be safe for the man who was doing the work?”

The plaintiff below was not bound to state his entire case in one question to the witnesses and ask whether it was safe, as ordinarily understood to be, was it safe for persons engaged in the work. To ask whether it would be safe for a person whose head was under the tank at the time it was being lowered, would not be necessary, the question being, generally, would it be generally safe for a person engaged in doing the work, being in a proper position; and if it was believed by the defendant below that this question was incomplete and did not meet the case fully, as it would be finally met and finally given to the jury, it was quite proper and quite usual to develop any additional facts by cross-examination as was done in every instance. We find upon this line of questions and the ruling of the court permitting this question to be answered, no error to the prejudice of the plaintiff in error.

On pages 131 and 132 of the record we find exception 70:

“Q. You may state to the jury whether or-not there was any rule or instruction in this shop or in the tank shop or in the round house with reference to the use of wood — as a sort of washer between the foot of the jack and the metal, a heavy metal substance to be raised"?
“A. Yes, sir.
‘ ‘ Q. If so, how long had it been in force, or in existence ?
“Mr. Andrews: I object to the question.
“Judge Wickham: I expect to show that the rule was communicated to Mr. Whidden; that it was not a written rule, but a verbal rule. I expect to show that he was instructed to lift.
“Mr. Andrews: I object to that statement.
‘ ‘ Court: I am inclined to think that upon this point, it would not be competent to show an oral rule communicated by Mr Bradeen to the foreman.
“Judge Wickham: We except to the ruling of the court.”

The effect of that action of the court was to deprive this defendant from showing that an oral rule was made, was in existence and was actually communicated to the plaintiff’s intestate in the court below. The plaintiff below grounded her right to recovery upon an oral order to do the work. Actions of this kind are most commonly grounded and are frequently sustained upon oral orders. There is no requirement of law that orders to employes in railroad shops, any more than in any other department of industry should be directed by written rules, and we are quite clear that this question should have been answered, and that the exclusion of the answer under the statement was error.

After the close of the testimony it may be said with reference to this particular question — afterwards, this witness, in another form, was permitted to answer a question that to some extent met the offer of proof made by the defendant below, but not entirely so. While perhaps upon the record, as it stands with the other questions and answers, we would not feel that the error was such as to reverse this judgment, yet, in passing, for reasons that will appear further on, we desire to express the opinion that this question, in the form in which it was stated, should have been answered.

The second request of the plaintiff to charge, without reading-it, because it is lengthy, is perhaps a correct statement of an abstract principle of law, but inasmuch as it does not embody or state the necessity of any casual connection between the fact stated to be negligence and the injury here in question, it seems to be viewed as an abstract direction embodying the law of some case, but not applied by its language to this case. It could not aid the jury, and we think should not in the form in which it was presented have been given.

The same as to the third request; and the same as to the fourth, fifth and sixth requests of the plaintiff. Some of these are found to be incorrect statements of law. Others are found to single out particular items of evidence and to attach, as we think, undue importance to such particular items of evidence, for. we do not conceive it to be the purpose of the law to permit a charge before argument, to authorize parties to single out particular theories and particular parts of the evidence and hold them up to the jury and thus give them undue importance in the case, and certainly mislead the jury. AVe are all of the opinion that these requests, when presented, should be the statement of general rules, not only correct in the abstract, but so covering the ease as hot to give a one-sided view of some particular theory of counsel, or to attach undue importance to some particular items of evidence.

AVhat has been said with reference to the plaintiff’s requests will apply to all but one of the requests of the defendant. The plaintiff, in her petition, had charged that several things were done, and that as a result of this or of these several negligent acts injury happened. The defendant below, singling these out one by one, with the request to the court to charge the jury that any one of them, standing alone would not, as a matter of law, entail liability. That Avas unfair, misleading and improper charge to be given, as Ave think, to the jury.

However there was a request, number four, by the defendant below, which is in this language:

‘ ‘ That if the jury find that the tank in question was resting at one end upon the foot of the jack, Avith no other support, at an elevation at that end of from ten to fifteen inches, and that Mr. AVhidden, for the purpose of reaching a piece of ‘blocking’ Avholly within the coal pit, placed his arm and head under the tank, and that that piece of ‘blocking’ could have been procured by him with absolute safety to himself, by entering the coal-pit at its open end, a presumption of negligence on his part would arise; and that before the plaintiff can recover the burden rests upon her to remove such presumption and show that he was exercising ordinary care by a preponderance of the evidence. ’ ’

It may be doubtful whether or not, as an abstract proposition of law, as a statement of law applicable to all cases, this would be true; that is to say, whether the rule existed to the extent claimed by counsel for plaintiff in error in this case, that in all eases when there are two ways of doing work, .or of accomplishing a given result, one absolutely safe and another attended with danger, that the adoption of the plan that is attended with danger raises the presumption of the negligence of the plaintiff. But in this ease the evidence is not in dispute so far as applies to this instruction, and it amounts to a request; therefore, that if there were two ways of accomplishing the work with reasonable dispatch, that is a proper qualification of the rule.

To make my meaning clear, it is alwáys possible with absolute safety to cross a railroad track. One might be attended by a messenger sent ahead to see that there is no danger; but if, instead of doing that, and for the purpose of pursuing his journey and his business with reasonable dispatch, he does not do it, because he does not surround himself with all precautions, and because he does not take the course that is in all situations absolutely free from danger, does not raise the presumption. But here, there is no showing in evidence but that this work to be done could have been done with reasonable dispatch by procuring blocking in some other way than by reaching through under the tank; and so we think that whether this request states a rule which is correct in all cases or not, under the conceded facts, or undisputed testimony, unquestioned evidence in this ease, it does state a fact, and that is the purpose of an instruction to a jury not to state a general proposition of law that is correct, but to deliver instructions which will aid the jury in arriving at a proper verdict and such as the law requires. f We think this request should have been given, and that its l refusal was error.

We think that the criticisms of the general charge that were made in argument are not well taken; that the general charge fairly covered' the ease, and that in the absence of any request to make more particular statement, or in tbe absence of any specific objection at the time to particular language, that the general charge or the general result of the charge to the jury must have been to have given them proper information and in the light of which they should have arrived at a proper and just conclusion.

This leaves undisposed of the question as to whether or not this verdict is sustained by sufficient evidence. Many of the facts, and we think enough of the facts to dispose of this question, are not in serious dispute, although there may be slight matters of evidence against it. From the uniform trend of the testimony, and sustained as we think by the clear weight of the evidence, these facts may be said to have been presented to the jury and should have been determined by them to be the controlling facts in the case.

That William Whidden, plaintiff’s intestate, a young man thirty-two years of age, of more than average intelligence, employed about these shops for three years or about that time, and for one year, or for one year and more, accustomed to be called from work in the round house which he was required to perform ordinarily, to assist in the lowering of tanks and raising of tanks from the floor of tenders; that he had on more than two dozen times used jacks and been engaged in blocking up and lowering down tanks onto the floor of the tenders; that on this day a jack was used; that it was placed under the tank, the tank being at an angle of from two-thirds of an inch to an inch to the foot; that it was placed in position by Whidden himself; and after the tank had been raised slightly from the blocking, he left the jack and the pit of the tender, got down from the tender floor onto the floor of the shop for the purpose of blocking the tank, for the general purpose of the employment; that when he got down to the side on which he was to place the blocking in position, there was no blocking there on that side; that blocking was situated in abundance at the other side of the tender; that it would have required six or eight steps for Tiim to procure it; that, so far as the evidence shows, at that time the jack was securely in place and there was no apparent necessity of proceeding speedily to procure the blocking; that for the purpose of gaining possession of the blocking he reached his arm under the tank thus raised, and between the tank and the floor of the tender, he placed his head under the tank; and while in that position, for some reason not explained here, the jack slipped and the tank fell down until its further progress was arrested by the goosenecks, and caused the injury which resulted in the death of Whidden.

We have said, in sustaining the requests of defendant for charge, that these facts raised a presumption of contributory negligence of William L. Whidden; the burden of proof then, under the well known rules of law, was for the plaintiff in the court below to remove this presumption, and that evidence, from the very requirement of the rule, must be exculpatory; it must show some reason; it must sustain some excuse; it must appear from other evidence that while this seems to be negligence, and that it seems William L. Whidden took the risk, that yet under the peculiar surrounding circumstances that the result does not follow.

We look in vain in this record for such excusing circumstances. It is in evidence, or it is suggested that the .jack slipped, but it is in evidence on the part of the plaintiff below and rather emphasized, that the jack frequently slipped, and if that is true, if Whidden used it for more than two dozen times, it is not fair to presume, in the absence of all testimony to the contrary, that he knew something of the weakness of the jack in that particular! If the jack did not slip, if it was strong and did not slip, then the cause is unexplained in the evidence. If it frequently slipped, as the plaintiff’s own testimony below tends to prove, then Whidden should have known it.

It is suggested that the paint caused it to slip, but for two hours on that morning, or about that time, Whidden was working around that tank; he had lowered it and raised it and had placed the tank in the position which it was at the time the injury happened. Now, if this paint was not dry, if it was soft, if it was said that the jack would slip when brought in contact with it, should not the fact that he had been engaged about the tank be some evidence of knowledge upon his part! But then the reason appeal’s that the jack, if it slipped, should have slipped in the opposite direction from what it did. It slipped toward its bearing instead of away from it, and certainly that manner of falling could not tend to sustain the contention made by the defendant in error here, that the slipping was due to the presence of paint.

It is claimed that two men only were employed instead of three about this work. If that is true Whidden knew it. He went there, and there is no evidence that at any time for those two dozen times, that any more than two men were employed, and the weight of the evidence in this record shows clearly that the only difference between employing three men and employing two, is that when three men are employed the work can be done more quickly than when only two men are employed.

However, if three men had been employed, it does not appear that this injury would not have happened. If three men had been employed and one of them had been standing at his jack, still, if Whidden had placed his arm and his head under this tank, he would not have had time, by reason of any precaution or by reason of any warning given at the time, to have escaped. In other words there is no causal connection between this negligence, if there was negligence in not employing three men, and the injury that happened. The same is true with reference to rules.

Upon the whole case, while, as in all cases of this kind, we view this injury and death as a calamity to this family, yet we must recognize that, the defendant below and the plaintiff in error here, is not an insurer; that the law does not exist for the purpose of distributing the burden upon persons who are guiltless. Under the rules of law, we must hold that Whidden, when he placed his arm and his head under this tank and was killed while he was in that position, can not recover; he could not, if he had survived, recover, and his administratrix can not recover, unless from the evidence there is something shown to excuse, or what seems to us to be clear evidence raising the presumption of his negligence.

Upon the whole ease, for the reasons indicated, for error in excluding the evidence that has been indicated, in charging the requests of the plaintiff below that have been pointed out, and in the refusal to charge the request by the defendant, because the verdict and judgment are not sustained by sufficient evidence, the judgment of the court below will be reversed and a motion for a new trial will be sustained and the cause remanded to the court of common pleas for further proceedings according to law.

Andrews Bros., for plaintiff in error.

G. P. and L. W. Wickham, for defendant in error.


text:
    ARREST OF DEFENDANT IN ATTACHMENT PROCEEDINGS.
    [Circuit Court of Lucas County.]
    Daniel D. Thomas v. William H. Mangus.
    Decided, January 25, 1904.

      Attachment — Arrest of the Defendant — Motion for a New Trial — Not Necessary for Review of the Judgment — On Motion to Dissolve Attachment or Discharge Defendant — Time for Filing Bill of Exceptions — Runs from Date of Judgment.

    3. No motion for a new trial is necessary to authorize a reviewing court to review the judgment of a trial court, on a motion to dissolve an attachment, or discharge a defendant from an order of arrest before judgment (8 C. C., 636, approved and followed).
    2. If a motion for a new trial is filed in such case, the filing thereof will not affect the time when a bill of exceptions must be filed, but the forty days allowed by the statute (Section 5301) for such filing begins to run from the date of the judgment of the court on the motion to dissolve or discharge.
    Hull, J.; Haynes, J., and Parker, J., concur.
   This action was brought on a promissory note, and ancillary to the action an attachment was issued. No goods were found under the attachment, and, upon a proper showing being made, an order of arrest was issued before judgment, against defendant, and he was taken into custody as provided under the statute that he might be. A motion was afterwards filed to discharge defendant from arrest. This motion was sustained by the court of common pleas and the defendant discharged, and proceedings in error are prosecuted here by the plaintiff to reverse that judgment. Upon the motion to discharge the defendant from arrest, evidence was offered by way of affidavits and orally, and that was all embodied in the bill of exceptions which is before us. It is claimed that this action of the court of common pleas was against the weight of the evidence. A motion was made to strike off the bill of exceptions for the reason that it was not filed in time in the court below, that is, it was not filed within forty days after the date of the granting of the motion to discharge the attachment by the court of common pleas, but a motion for a new trial was filed by plaintiff asking for a re-hearing, and that was not overruled until March 2, and the bill of exceptions was filed within forty .days after the overruling of that motion for a new trial, and it is claimed by plaintiff in error that the - forty days began to run from the time the court overruled his motion for a new trial, and that, therefore, he is within the statute. The bill of exceptions statute, the last one, which was passed October 22, 1902,. provides, in Section 5301:

“The party excepting must reduce his exceptions to writing and file the same in the cause within forty days after the overruling of the motion for a new trial, or the decision of the court, where a motion for a new triál is not filed; thereupon the clerk shall forthwith notify the adverse party, or his attorney, of the filing of such bill. ’ ’

The motion for a new trial, according to the record, was not filed until four days after the order had been made; but it is claimed that a Sunday intervened and that that day should not be counted. And it is claimed by the plaintiff in error that a motion for a new trial was not necessary. But that claim is a two-edged sword for the plaintiff, for, if the motion, for a new trial was not necessary, then the time of the filing of the bill of exceptions would be governed by the same rule as where no motion for a new trial is in fact filed. If a motion for a new trial is not necessary, then the filing of such motion would not extend the time for the filing of a bill of exceptions, but the forty days would begin to run from the time of the order of the court, the statute providing for the filing “within forty days after the overruling of the motion for a new trial, or the decision of the court where a motion for a new trial is not filed;” the statute does not say where a motion for a new trial is not necessary, but says “where a motion for a new trial is not filed.” But if a motion for a new trial is filed where it is not necessary and is not required, it would not affect the running of the forty days or the time at which the forty days would begin to run. That a motion for a new trial in such a case is not necessary, we think is clear. In 56 O. S., 148 (Minnera v. Holloway), it is suggested that a motion for a new trial in such a case is probably not necessary. It was not squarely passed upon by the Supreme Court — as it was unnecessary to do so— but they say in the opinion:

“As new trials are only granted in pi’oeeedings in which there are issues of fact (Section 5305), what is said above about remanding cases for a new trial after reversing on the weight of the evidence, can not apply to orders and judgments made on hearings on affidavits or evidence, for injunctions, or for the vacation of an injunction, or the dissolution of an attachment, or motions for the appointment or discharge of receivers, or motions for the vacation of an order of arrest in a civil action and other like motions and proceedings in which no issues of fact are made up by pleadings, and there is no trial in the legal sense of the term.”

In the paragraph before this, in the opinion, 'Judge Burket, who delivered the opinion, says:

“In such eases the reversal by the higher court should not be on the ground that the verdict or judgment below was against the weight of the evidence, but that it was contrary to law, that is, that the court below erred in applying the law to such conceded facts. The motion for a new trial in such ease, if such motion is necessary, should be upon the ground that the verdict or decision is contrary to law.”

As stated by the Supreme Court in this case, where the action of the lower court in such case is reversed, the case does not go back for a new trial as where there has been a trial upon issues of fact set forth in the pleadings, but the judgment is reversed and the court of common pleas is directed to enter the judgment that the reviewing court holds should have been entered. If an attachment has been discharged, if the reviewing court holds that that is against the evidence and against the law upon the showing made, the ease is sent back and the common pleas court is ordered to overrule the motion to discharge the attachment.

The Circuit Court of Cuyahoga County has held expressly that a motion for a new trial is not necessary in such a case, 8 Circuit Court Reports, 636 (Stone, Assignee, v. Bank) :

“No motion for a new trial is necessary to authorize a reviewing court to review the judgment of the trial court upon a motion to dissolve an attachment, although the weight of the evidence is involved.”

The opinion was delivered by Judge Hale, and he says (page 639) :

“It is said, first, that this question can not be reviewed in this court, because no motion for a new trial was made on the overruling of this motion. This is not an open question in this court. We hold that a motion for a new trial is not necessary to authorize this court to review the facts upon which the court below determined the motion.
“Section 5305, of the Revised Statutes, defines the causes for which new trial will be granted. The first clause of this section reads: ‘A new trial is a re-examination in the same court of an issue of fact after a verdict by a jury, report of a referee or master, or a decision by the court.’
“Section 5127, of the Revised Statutes, defines an issue: ‘Issues arise on the pleadings where a fact or conclusion of law is maintained by one party and controverted,by the other.’
“We have held and now hold, that no issue of the kind here defined arises upon a motion to dissolve an attachment, and therefore a motion for a new trial is unnecessary.”

We think this is the law, and an order of arrest before judgment is an attachment of the person and subject to the same rule as when property is attached. So that when the eoui’t of common pleas granted the motion to discharge the order of arrest in this case, no motion for a new trial was necessary on the part of the plaintiff below to pi’osecute his proceeding in error in this court to review on the ground that the order of the court was against the evidence, and it seems clear to us that the time within which he must file his bill of exceptions must date from the time of the order of the court of common pleas sustaining the motion to discharge the defendant from the arrest. That order was made on the 22d day of January, 1903. The bill of exceptions was filed on the 11th of April following, being 79 days after the date of the order and judgment of the court discharging the defendant.

Paddock & J ohnson, for plaintiff in error.

Schunck & Thompson, for defendant in error.

The motion to strike the bill of exceptions from the files must be sustained; it not having been filed until a long time after the forty days had expired. This is fatal and this court has no jurisdiction to review the case upon the facts. There being no question raised in the case except as shown by the bill of exceptions — the weight of the evidence — it follows that the judgment of the court of common pleas must be affirmed.


text:
    LESSEE’S EQUITY IN BUILDING ERECTED BY HIM.
    [Circuit Court of Lucas County.]
    Reuben J. Lent v. Charles F. Curtis.
    Decided, February 3, 1902.
    lies Judicata — Equity Suit to Enjoin Forcible Entry and Detainer Proceedings — Not a Bar to Action by Lessee to Recover for Building Erected by Him — Landlord and Tenant — Word “Term” as Used in Lease — Refers to the Time the Lease Will Expire in the Absence of Default — Forfeiture Does Not Affect Lessors Right to Damages or Lessees Equities in Improvements — Insolvency of Lessor Not a Bar to a Suit by Him for an Accounting.

      1. The dismissal generally and without a saving clause of a suit by a lessee to enjoin a proceeding in forcible entry and detainer by the lessor, based on defaults creating a forfeiture, is not res judicata as to the equity of the lessee in a building erected by him on the leased land, under a provision that at the expiration of the term the lessor would purchase such building at 70 per cent, of its appraised value.
    2. The word “term” as used in such a lease refers to the time provided by the lease for the lessee’s term to expire if there is no default, and the lessee is without a right of action until that time upon such a covenant of purchase.

      3. Whilq a forfeiture of the lease is absolute, it in no way affects the lessor’s right to damages on account of the default, or the lessees right to recover his equity in the improvements, and an accounting may be ordered.
    4. A tender by the lessee of rent covering the entire term is not a prerequisite to a demand for an accounting, and his insolvency is not a fact which the lessor ca,n avail himself of as a defense against the hardship of being compelled to enter upon litigation and submit to an accounting when the result will be to show a balance in his favor.
    Parker, J.; Haynes, J., and Hull, J., concur.
   This case is here on appeal. It was brought in the court of common pleas of this county in the year 1891. It has been dragging along for something over ten years for some reason not explained, but it has but recently come into this court.

It is an action upon the part of Mr. Lent, who was at one time a tenant of Mr. Curtis and one Peter II. Birkhead, to recover the value of a certain building which he erected upon premises that were leased to him by them; and conceding that they would have certain claims against him to offset in a measure his claim for the value of the building, he asks for an accounting and a judgment for the remainder.

It appears that Mr. Lent became the tenant of Curtis and Birkhead of a vacant lot on Summit street, in this city, under a lease dated March 25, 1875. By the terms of the lease it was let from July 1, 1875, to July 1, 1890. Mr. Lent was to pay a rental of $1,000 per year, payable in quarterly installments; but the lease contains a provision that at the expiration of five years there shall be an appraisement of the premises exclusive of the building which Mr. Lent agreed to put upon the lot, and that thereafter he shall pay for the succeeding five years at a rate equal to six per cent, upon the appraised value of the premises; provided, however, that the rent shall not fall below $1,000 a year. And there is a similar provision as to the next succeeding period of five years, beginning with 1885. The lease contains a provision as to the erection of a building upon the premises,- and as to the compensation therefor at the expiration of the term, which I shall read:

“Said party of the second part agrees to improve said premises by erecting a building thereon at a cost of not less than $6,000, said building to be completed by the first day of September, 1875, or within a reasonable time thereafter, the foundation of which said building shall be lowered in the ground to a depth ec[ual to that of the foundation of the adjoining building. It is further agreed by and between the parties, and the said parties of the first part (being the lessors) do hereby obligate themselves to purchase of the second pai’t, his executors or administrators, at the expiration of said term, all the buildings which may have been made, erected and placed upon said premises by the party of the second part, and which shall at that date be suitable for business purposes, at a price equal to seventy per cent, of the actual appraised value of the same; said appraised value to be determined by three disinterested persons, to be selected in the manner aforesaid, the decision of any two of whom shall be considered final.”
“To be selected in the manner aforesaid” refers to the method provided for the selection of appraisers to fix the rental value of the premises. These appraisers are to be selected in the same way, one by the lessee, one by the lessors, and the third by the two thus chosen. Another part of the lease to which we shall have occasion to refer is that providing for the termination or forfeiture of the lease in the event that the lessee does not comply with certain conditions. That provides in part as follows:
“And it is further understood and agreed to, that if the said party of the second part shall fail to pay the rent aforesaid as the same shall 'become due and payable, according to the covenants aforesaid, and shall fail to perform any of the covenants and conditions on his part to be kept and performed, it shall and may be lawful for said party of the first part to re-enter and take possession of said demised premises, and expel said party of the second part, his heirs, executors or assigns, therefrom. And it shall not be necessary for the said party of the first part, or any other person in their behalf, to make demand for the payment of said rent at the time it shall become due and payable, or at any other time to entitle them' to re-enter, any rule in law -or equity to the contrary notwithstanding.’ ’

The lease contains another provision to which I desire to make reference, to the effect that the lessor shall have a lien upon the building for the non-payment of rentals, taxes, assessments, etc., that reads as follows:

“It is also agreed that the party of the second part, in addition to the rents aforesaid, shall pay all taxes and assessments which may be levied or assessed upon said premises, on or after the first day of January, 1875, except payment of installment of said taxes for December, 1875, as the same may from time to time become due and payable, and that said taxes and assessments, together with the rents aforesaid to become due, shall at all times constitute a good and valid lien in favor of the parties of .the first part upon the said improvements to be erected hereafter by the party of the second part upon the premises aforesaid; it being understood that the moneys to be paid for the sidewalk now laid are to be paid by the parties of the first part.”

Immediately following this is the clause which I have read, providing for the erection of the building, and for the payment of seventy per cent, of its value in a certain contingency.

In the case at bar a petition, answer and reply have been filed, making up certain issues; and the question now submitted to us, after hearing certain evidence, is whether we should require this accounting. Our finding upon this occasion will not be the basis of a final judgment or a final order; but by agreement of the parties we are called upon to determine this preliminary question, in accordance- with the principles of a court of chancery, in order that the parties may know how further to proceed.

It appears from these averments and from the evidence adduced that Mr. Lent went into possession of the premises under the lease, and erected a building upon them, being a substantial structure, designed for a theater, or for performances of some description, and that in this enterprise he became financially embarrassed, jand was unable to pay all of the bills that he made in putting up the building. It appears that he started in to erect a building to cost $6,000 or $7,000, and that it cost him perhaps more than twice that, and he was not able to pay the contractors and material men. The result was that an action was instituted to foreclose mechanic’s liens. The lessees were made parties to that action, and by way of answer and cross-petition they set up their claim for the accrued rents, and their lien as a first lien upon this building, as provided in the lease, and the property was brought to sale under a decree of foreclosure. The property was bid in by Mr. Maples, as a trustee for all of the lienholders excepting the lessors. The claim of the lessors that had then accrued for taxes and assessments, etc., was paid from the proceeds arising from this sale, and $2,500 of rent then delinquent was paid from the proceeds. The necessary funds to pay the costs and to pay the claims of the lessors, appear to have been raised by these other lienors, perhaps in the proportion of their respective claims; and then and thereafter Mr. Maples held the title to the property thus obtained upon foreclosure, which was, I should say, the leasehold interest, and whatever interest in the building under the foreclosure was held by Mr. Maples as trustee for these various lienors in the proportions of their respective claims on account of labor and materials and on account of the funds advanced to discharge these costs and the claims of the lessors. Subsequently a Mr. Norton succeeded to the title and position of Mr. Maples as trustee. Still later it appears that the plaintiff here, Mr. Lent, undertook to redeem, or reinstate himself, by satisfying the claims of these lienors (or some of them, it does not appear that he acquired the interest of all) by taking from them assignments of their respective claims.

After this foreclosure sale — whether before or after the assignments, that I have mentioned, to Mr. Lent, is not clear, and is perhaps immaterial — an action of forcible entry and detainer was instituted by the lessors against the trustee, then Mr. Jesse S. Norton, to obtain possession of the premises, in consequence of default upon his part in payment of rent that had accrued after this $2,500 had been paid — rent that had accrued after the foreclosure sale — and also on account of a violation of the liquor laws of the state, which, under the provisions of the statute and of the lease would create a forfeiture. That proceeding having been instituted before a justice of the peace, Mr. Norton, as trustee, began a suit in equity in the court of common pleas of this county to enjoin the lessors from prosecuting the same. In his petition he set forth the lease, and that the building had cost a large amount of money, and conceded the default in the payment of rent, but he appeared to have' the notion that the lessors should not proceed with their forcible detainer action until they had satisfied the claim which he asserted of seventy per cent, of the value of the building, before they should take possession of the premises, and asked in effect that the lessors might be enjoined from proceeding with their forcible detainer suit until his claim in that respect might be adjusted and satisfied. An answer was filed by the lessors, in which they set forth the defaults. The issues were made up, and the case appears to have been submitted to the court upon the issues thus framed, and the petition of the plaintiff was dismissed generally upon the merits. Thereupon the lessors proceeded with their forcible detainer suit, with the result that it was found by the justice that the trustee, Norton, was in default in both of the respects claimed; that he had violated the liquor laws and the terms of the lease, by permitting the unlawful sale of liquor upon the premises, and he had made default in the payment of rent. Judgment was entered against the defendant, a writ was issued, and the defendant was dispossessed, and the lessors went into possession of the premises.

These various suits and proceedings were all instituted within a few years after this lease was executed — the foreclosure suit I think in 1876, the forcible entry and detainer proceeding and the suit in equity following upon that within a year or two after — and they were all determined by the year 1880, and the lessors went into possession in 1881, and they, by themselves and their tenants, to whom they subsequently let the premises, have remained in possession ever since.

In 1881 the trustee served notice upon the lessors that he had selected an appraiser as provided for in the lease, and desired to have them select one on their part, that these two might select a third, to proceed to appraise the premises, in order that the amount of seventy per cent, of the value might be determined. Nothing was done by the lessors in pursuance of that notice. Again in 1891 a like notice was served upon the lessors for like appraisement, with a like purpose, and this was ignored. Thereupon this suit was instituted.

The plaintiff says in his petition that this building cost in the neighborhood of $18,000; that the amount of taxes and assessments and other claims against him on account of his defaults are much less than the seventy per cent, of the value of the building, which would be something over $12,600; that therefore, after taking into account all lawful claims of the lessors (the defendants) against him, there would be, perhaps, $10,000 due him which he ought to have, and which he seeks to recover on account of the value of the building.

The defendants aver and contend, first, that this whole matter is res judicata; that by reason of the facts having been set forth in the petition to enjoin them from proceeding with the forcible detainer suit, by reason of the court having given consideration to the evidence therein offered, and having dismissed the ease without any saving clause, but generally, the whole matter has necessarily been determined adversely to the claims of the plaintiff. And the defendants further insist that when the trustee (into the rights of the beneficiaries of whom Mr. Lent has come), forfeited his rights under the lease by permitting the unlawful sale of liquor, and by the non-payment of rent, and in consequence was subjected to the judgment in forcible detainer, he thereby forfeited and lost as well any claim which he might have had for the improvements put upon the premises.

As to his first claim of res judicata, our understanding of the purpose of that action is, considering the averments and the prayer of the petition, that it was simply to enjoin the plaintiffs in the forcible detainer suit (the lessors), from proceeding therein, and to require them to go into a court of equity to have all claims adjudicated, before they should seek by forcible detainer to recover possession of the premises. And our understanding of the result of the judgment in that suit in equity is, that it determined simply and solely that the lessors had a right to and might proceed with their forcible detainer proceeding, notwithstanding any claims that the trustee might have by virtue of the provision as to the building and compensation therefor. We can not see that the court in that action was required to proceed further with the inquiry or that the court was authorized to go further with the judgment. It seems to us clear, even though the plaintiff in that equity suit might have a right to require an accounting, either then or at some time in the future, for the value of the building, that that could not defeat or affect the right of the lessors to proceed by forcible detainer to recover possession of the premises; that the lessors, as a condition to obtaining possession of the premises, were not required to settle for the building, but that under and in pursuance of the terms of this lease, upon default in payment of the rental and on account of the violation of- the liquor laws, the lessors at once had a right which they might at once enforce, to recover possession of the premises, and that this right was wholly independent of any right or claim which the trustee or Mr. Lent, as his successor in interest, might have under the provisions of the lease as to the building and as to compensation for the building.

And we are also of the opinion that the court might and should have disregarded the claim of the plaintiff for relief in that equity suit, or rather denied it on the ground that his right of action for the recovery of anything on account of the building-had not accrued or matured. While it is true that the lease provides that the right to recover, or to have this seventy per cent, of the value of the building, shall accrue at the expiration of the term, and technically the term expired when default was made, and there was a forfeiture, yet we think the word “term" in this connection should be read in the light of all the provisions of the lease as “time," and that it refers to the time provided by the lease for the lessee’s term to expire in the event that there was no default, which would be July 1, 1890; that the person in default, to-wit, the lessee, could not take advantage of his own default, and thereby cause the time for the payment of this seventy per cent, to arise earlier than that contemplated by the parties; that the right of the lessee whatever he had, under this provision, would not accrue until the expiration of the time limited, i. e,, July 1, 1890; that the time not having arrived at the time this suit in equity was instituted, the court might very well have dismissed the petition upon that ground; and for that reason it must be assumed, we think, that the court did proceed upon that ground and for that reason.

I desire to refer to one or two eases upon the subject of res judicata that we consider in point here. One case is that of Cramer v. Moore, 36 Ohio St., 347. The syllabus reads:

“Inan action on a promissory note, the maker is not estopped from setting up want of consideration or fraud, by a judgment dismissing his petition on the merits, in an action brought to enjoin the negotiation of the note and to obtain its surrender and cancellation, although the matter set up as a defense was relied on as the ground of relief in the petition. ’ ’

What is there decided may not be entirely clear without reading somewhat more of the decision:

‘ ‘ The action in the court below was brought by Moore against Cramer, upon four negotiable notes given by Cramer to Allen and Hopkins March 13, 1868, and shortly after, and before due, endorsed to Moore. Cramer answered that the notes were obtained by fraud for a worthless patent rights and that Moore was aware of the fraud, and took the notes to aid in its consummation ; that at the time he took them an injunction existed, allowed on a petition praying that the payees be restrained from negotiating them, and as a final relief, their delivery up and cancellation. To this Moore replied, denying all fraud, either of the payee or himself, and averring that he took the notes ‘in the usual course of trade for a valuable consideration without any knowledge on his part of any infirmity in the notes.’
“He further insists that Cramer is conclusively estopped from setting up or proving any of the facts stated in his answer in relation to fraud in obtaining the notes, he having stated substantially the same facts in his action for the injunction, which, upon being prosecuted to final hearing in the district court, was dismissed upon the merits.
‘ ‘ On the trial the court ruled out the record of that suit, holding that it constituted no bar to the defense of Cramer.
“The trial resulted in a verdict and judgment for the defendant.
“On error, the district court reversed the judgment, on the ground that the judgment in the action prosecuted by Cramer for an injunction was a bar to his making the defense in the action on the notes.
“The object of the present petition is to obtain the reversal of the judgment of the district court. ’ ’

Judge White, in the opinion, says, page 348:

“The original action was brought by Moore, the indorsee of the notes, against Cramer, the maker, to recover the amounts due thereon; and the question is, whether Cramer is estopped from proving that the notes were without consideration, and were obtained from him by the payees through fraud.
“On behalf of Moore, it is alleged that Cramer is thus es-topped from making defense to the notes. The ground of the alleged estoppel is, that Cramer, after the delivery of the notes to the payees, brought suit against them to enjoin the negotiation of the notes, and to obtain a decree or judgment for their surrender and cancellation; that the grounds of such relief were the same, in substance, as he now sets up as a defense to the suit on the notes; and that, after the allowance of a provisional injunction, the case was finally heard upon the merits and dismissed.”

The facts in this case from which I am quoting resemble in a general way those here; that is to say, so far as this property is' involved, it is conceded here that the facts set forth in the petition in equity to enjoin the lessors from proceeding with the forcible detainer suit were the same practically as those set forth in the petition in the case at bar, as grounds for reliéf. It is urged that because the equity suit was dismissed generally upon the merits, therefore it is a bar to further proceedings here. To be sure these are both actions in equity; whereas, one of the actions mentioned by the court in this case was an action at law and another an action in equity; but-we do not think from the discussion of the case, that that could make any difference, since the proceeding in equity was practically to interpose a defense to an action at law, to prevent its going forward.

Judge White proceeds:

“We do not question the principle insisted upon on behalf of the defendant in error, Moore, that a judgment of a court of competent jurisdiction, upon a question necessarily involved in a suit, is conclusive in a subsequent suit between the same parties, depending on the same question; and in respect to this quality of conclusive effect upon parties and privies, the decrees of courts of equity, upon matters within their jurisdiction, stand upon the same footing with judgments at law.
“But in determining the application of this principle to the present case, regard must be had to the nature of the equitable jurisdiction called into exercise in dismissing the petition seeking the surrender and cancellation of the notes in question. ■
“The foundation of equitable jurisdiction is the inadequacy of the common law to afford the necessary relief. Hence, there is a marked distinction between cases where equity interferes with the remedies afforded to parties by the course of the common law, and eases where equity refuses to interfere.
“If in the present instance, the court instead of refusing to interfere and dismissing the petition, had found the then plaintiff, Cramer, entitled to the equitable relief sought, and had decreed the surrender and cancellation of the notes, the legal right of the payees to sue on the notes would have been extinguished; or if, in violation of the injunction, the payees had put it out of their power to surrender the notes, the court could, doubtless, have followed them into the hands of any party taking them in known violation of the injunction. But such was not the finding and decree of the court. And the findings of fact in the ease were only material as laying the foundation for the judgment or decree that was, in fact, rendered. * * *
“The only effect, therefore, in our opinion,-of the dismissal of the petition, was to declare that the plaintiff had no equitable right to maintain the action; and that the rights of the parties remained the same as if no action had been brought, or injunction allowed, save only that the dismissal was a bar to the bringing of another action for the same matter.”

In Porter v. Wagner, 36 Ohio St., 471, I read the syllabus only:

“A judgment of dismissal of a petition for the specific performance of an agreement and of a counter-claim asking a rescission of the same, is no bar to an action for the recovery of money paid on the agreement, although the cause of action accrued before the rendition of the judgment.
“Where a judgment between the parties is relied upon as an estoppel, the question is not what the court might have decided in the former action, but what it did in fact decide, as shown by the judgment.
“A judgment is conclusive by way of estoppel only as to facts, without the proof of the admission of which it could not have been rendered.”

I refer, without reading further than the syllabus, to the ease of Witte v. Lockwood, 39 Ohio St., 141:

‘ ‘ The general rule is that a defendant is bound to set up every defense, legal or equitable or both, which he may have to the action, and waives those not pleaded; but where the facts claimed to afford a defense are sufficient to constitute a counter-claim, there is an exception to such general rule.
“A defendant relying solely on his legal title, in an action to recover the possession of real property, and failing, is not estopped to maintain an action to correct mistakes in the deeds under which the parties to such action respectively claimed. He has his election to rely on such equitable title as a defense or a counter-claim, or he may maintain an action thereon. ’ ’

A word as to the other contention, that by the forfeiture of the term, the lessor and those claiming under him forfeit a right to the appraisement of seventy per cent, of the value of the building provided for in the lease. Counsel for defendant insists that these various covenants upon the part of the lessors and the lessee in this case are dependent; that the performance of one on the one part, or the performance of all upon the one part, constitutes a condition precedent to the enforcement of any of the covenants of the party of the other part. But we can not agree with this contention. The rules for determining whether covenants are independent or dependent are very numerous, and some of them appear to be very technical; but there are certain general rules and principles well stated in 2 Parsons on Contracts (6th Ed.), star paging 528:

“It is a similar question — sometimes indeed the very same question — whether covenants are mutual, in such sense that each is as a condition precedent to the other. And also whether covenants or agreements be dependent, or independent. By the very definition of them, if they are dependent, that is, if each depends on the other, the failure of one destroys and annuls the other. Or, if this dependence is not mutual, but one of them rests upon the other by a dependence which is not equally shared by the other, if that contract upon which this dependence rests is broken and defeated, the other by reason of its dependence is annulled and destroyed also. But they may be wholly independent, although relating to the same object, and made by the same parties, and included in the same instrument. In that ease they are two separate contracts. Each party must then perform what he undertakes, without reference to the discharge of his obligation by the other party. And each party may have his action against the other for the non-performance of his agreement, whether he has performed his own or not. Now the law has no preference for one kind of contract over another; nor does it, by its own implication and intendment, make one rather than the other, and still less does it require one rather than the other. It may indeed be safely said that this question in each particular case will be determined by inferring, with as much certainty as the case permits, the meaning and purpose of the parties, from a rational interpretation of the whole contract.”

This is in a measure adopted and approved, and a decision made illustrative of the principle, in the case of Gould v. Brown, 6 Ohio St., 538. In the course of the opinion, by Brinkerhoif, J., he refers to a rule upon the subject laid down by Sergeant Williams in his note to Portage v. Cole, 1 Wms. Saund., 319:

“Where a covenant goes only to a part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the covenant, on the part of the defendant, without averring performance, in the declaration.”

It is contended here on the part of the defendant that it devolves upon the plaintiff to make a tender at first of all the rent that accrued during the fifteen years of the term; that all that had not been paid by him during this foreclosure sale, and the taxes and assessments, etc., he obligated himself to pay, and that this must be done as a condition precedent to enforcing this provision as to the payment for the building, and, as counsel says, as a condition precedent to the opening up of this forfeiture. We do not regard this action as in the nature of a suit to open up a forfeiture. We agree with the contention of counsel, that the forfeiture, on account of the violation of the liquor laws, is not subject to being set aside by a court of equity —that it is absolute; that by the forfeiture the term was ended; that the right of Lent and of the trustee succeeding him, to the term, and to occupy as lessee, was absolutely at an end after the judgment in the forcible detainer suit and the taking possession by the lessors; and that there could be no relief against that forfeiture. We are of the opinion that it follows, too, that the right of the lessors to recover rent for the remainder of the term ended as well. But it does not follow that the right of the lessors for compensation as damages in consequence of this default was at an end; and we are of the opinion that in the adjustments of the rights of the parties, they may require the plaintiff- to account to them and compensate them for any damage resulting therefrom. We will not undertake at this time to lay down any rule of damages; that will remain for further consideration; but it may be said generally that it would be the loss resulting from the failure of the lessee to comply with the terms of the lease, to remain in possession and pay the rent. It may be readily seen that if the lessors were not able to rent the premises for the remainder of the period of fifteen years at as great advantage as was provided by the terms of the lease, there would be a difference on account of which they would have a claim for damages.

But forfeitures are not favored in law nor by courts of equity. The terms or provisions of the forfeiture will not be extended, nor will they be implied. The forfeiture will not be enforced beyond its strict terms. Now, the parties in drawing this instrument expressly stipulated for the result that should follow from a default, and they did not herein provide that one of the results should be the loss of the building or the loss of seventy per cent, interest in the building. The provision I have already read, that in case of default in the payment of rent, or in permitting the unlawful sale of liquor, or in the payment of taxes and assessments, etc., or of failure “to perform any of the covenants and conditions on his part to be performed, it shall and may be lawful for said party of the first part to re-enter and take possession of said demised premises, and expel said party of the second part, his heirs, executors or assigns, therefrom.” The defendant here had a right to terminate the lease, he had a right to put an end to the term; but the provision as to the compensation for the building, according to our construction of this instrument, stands as an independent matter. There is no provision that the right to recover this seventy per cent, should be lost by any default upon the part of the lessee. We do not look upon it as being like a case where a lessee for his own convenience erects buildings, or improves, or puts in fixtures that he may not be permitted to take away or remove after the expiration of the term, there being no express provision in the lease upon the subject. But here we have a provision which discloses that the removal of the building to be erected by the lessee was not contemplated; he had no right to remove the building in any event, even though he had performed and completed every covenant upon his part to be kept and performed. The building was to remain, and it was to be purchased at the expira7 tion of the time, as we read the lease, by the lessors. He obligates himself to purchase it, and to pay just seventy per cent, of its value, to be ascertained in the mode pointed out. The lessor had a right to take possession of the premises, as I have said. He regained possession by the action of forcible detainer. Having regained possession, he had a right to the use and occupation of the building, and the lessee had no right to interfere with him in the exercise of that right or in that possession. The lessee, by reason of his default, was bound to remain out of possession, and to wait quietly until the expiration of the period of fifteen years. He had no remedy until that period had expired, then we think his remedy was that which he seeks to pursue here, to ask that the appraisement should be made, and if the seventy per cent, of the value of the building at that time was more than the damages accruing to the lessor in consequence of his default, the lessee would be entitled to the difference ; if it was less, he would be entitled to nothing; he would be required to pay to the lessor the damages in excess of the value of the building.

It seems to us that the parties would hardly have entered into a contract of this kind with any other result in contemplation. We do not think the result should be that insisted upon by counsel for the defendant here', that the lessee, after putting up a building worth $18,000 upon this vacant lot, adding that much to its value, if he made default in the payment of a single installment of perhaps $50 of rent or less, by virtue of the forfeiture resulting from that slight default, should lose his building worth $18,000. We would not feel warranted in taking that view of the contract, unless by its express terms we were required to do so. We think that was not in contemplation, and is not the meaning of the contract, and our conclusion is, that the accounting prayed for should be made.

It is said that the plaintiff is insolvent, while the defendant is solvent, and it is insisted upon behalf of the defendant that the balance, if there is to be a balance struck, would be in defendant’s favor, and that it is a great hardship to require him to enter upon this litigation and to submit to this accounting, when the result will be to show a balance in his favor. We know of no rule under which we can deny the plaintiff the relief he seeks simply because he is insolvent and any judgment in favor of the defendant would be worthless. We have thought about the matter of requiring security for costs, but we know of no authority permitting us to do that. If a referee should refuse to serve because of plaintiff’s financial condition, we know of no reason why the plaintiff may not make known his inability, and insist on the court sitting here and listening to all the testimony.

I omitted to state that this is the opinion of a majority of the court; the court is not unanimous.

Mr. Thurstin: “I would suggest that there would be difficulty in working out this judgment which the court has rendered, and perhaps the court can aid us in respect to that. Long before the term had expired — that is, the term of fifteen years — the owner of this property had found it necessary, in order to make it available at all, to reconstruct the building, and it was reconstructed for the purpose of getting a tenant. While the court has said that the value of the building for business purposes at the end of fifteen years at seventy per cent, was to be taken, of course it would be grossly unfair to leave out the improvements which he was compelled to make upon it in order to make it available at all.”

Parker, J.: “We have considered that the value of the building, as originally constructed by the plaintiff, subject to reasonable wear and tear, is to be the basis. The plaintiff would not be entitled to any improvements put upon it subsequently by the lessors to make it available for their purposes. ’ ’

Haynes, P. J.:

I simply occupy this position in this case at present: I neither assent nor dissent; but inasmuch as a majority of the court are of the opinion that the case should go forward, I thought they should deliver the opinion, and as the case progresses I will look into it further. I am inclined to the view at the present time that the plaintiff has no equity, but I do not want to conclude myself one way or the other upon that question at the present time.

Hamilton & Kirby and J. 8. Wirtman, for plaintiff.

W. 8. Tlmrstin, for defendant.


text:
    ARBITRATION.
    [Circuit Court of Stark County.]
    Daniel F. Mock v. Newton K. Bowman.
    Decided, February Term, 1902.

      Statutory and Common Law Arbitration — The Award — May be Excepted to and Set Aside, How — No Appeal from an Overruling of the Exceptions to the Award — Where Real Estate is Involved, but the Title Passes to a Designated Person Under the Arbitration Agreement — Arbitration is Not Barred by the Statute — Previous Joining of Issue in Court Without Effect.

    1. Tbe fact that tbe parties to an agreement for an arbitration had previously joined issued by pleadings in court, does not affect their right to submit their controversy to arbitration.
    2. An arbitration is statutory, and not under the common law, where the agreement to arbitrate fixes the time and place of trial, names the arbitrators, provides that the result arrived at by a majority of the arbitrators may be made a rule of court, and that the parties shall enter into bonds for the faithful carrying out of the award, and the title to real estate is not involved.
    3. The provision in Section 5601, which excepts from arbitration controversies involving the title or possession of real estate, is not violated where real estate forms a part of the property subject to arbitration, if it is designated in the agreement tó arbitrate to whom the said real estate shall pass.
    4. An appeal to the circuit court does not lie from the overruling of exceptions to the award in the common pleas court and the entering of judgment thereon.
    VOORHEES, J.; DOUGLASS, 'J., and DONAHUE, J., COUCUT.
    Appeal from Court of Common Pleas of Stark County.
   This suit was originally commenced in the court of common pleas for the purpose of settling a partnership, or for the dissolution of an existing partnership, and for the settlement of the matters in dispute- between the parties. Issues were joined by-proper pleadings in the common pleas court. After issues were joined the parties, by agreement in writing, agreed to submit their questions in dispute to three persons named in the articles of agreement for their determination. The terms of the agreement were in substance as follows:

That there was this suit pending in the common pleas court of this, Stark county, for the purpose of winding up the affairs of the late firm of N. K. Bowman & Co.; that the parties to adjust their differences entered into the agreement to arbitrate; that the arbitration was to embrace all questions and matters of difference, except as therein modified, which differences were to be submitted by the parties to the arbitration, determination and award of three persons named therein as arbitrators, who were to hear and determine the same at North Lawrence, Stark county, Ohio, beginning January 22, 1901, at 9 o’clock A. M., with the right to adjourn, and to make their award in writing on or before March 22, 1901; and when so made, said award was to be final, binding and conclusive upon the parties and shall be made a rule of the court of common pleas of Stark county, Ohio.

Said arbitrators were to make a complete inventory and appraisement of all property, real and personal, belonging to the firm, whether in the name of the firm or the individual name of the parties. They were to make a schedule of all liabilities of the firm, hear and determine all matters in dispute, accounts and dealings between the parties, and between said N. K. Bowman & Co., and either of the parties thereto, and state the account between them. They were to deduct from the assets all the liabilities, and determine the interest in the balance of the assets belonging to each of the parties.

It was further stipulated that the defendant Bowman should take, and be obligated himself to take, the real estate belonging to the firm located at North Lawrence, and all merchandise and machinery belonging to the firm; also all book accounts, credits and bills receivable belonging to the firm at the value placed upon the same by the arbitrators. The arbitrators were to de-, termine which of the parties should take the real estate belonging to the firm located in the city of Massillon, and the party taking the same under the award was to take it at the value placed thereon by the arbitrators. The said Bowman should pay any and all liabilities of the firm above referred to within six months from the date of the agreement, and he agreed to save Mock harmless from any liability thereon. If it should develop that there were any liabilities other than those contained in the schedule above provided for, then the same should be paid by Bowman, provided they are admitted by both parties to be bona fide indebtedness of the parties. If the parties could not so agree, and the matters are litigated, then said Bowman should pay the amount determined by said litigation, and said Mock agreed to reimburse Bowman for one-fourth of said liabilities together with one-fourth of the legitimate expenses incident to the litigation and adjustment of said liabilities. If it should develop that there are debts contracted for and incurred for the sole benefit of either of the parties and not for the benefit of the firm, the party so contracting and incurring the same should be charged with the amount thereof. If in the making of the award provided for it should be found there was any balance due from either party to the other, it was agreed that the one so found to be indebted to the other, should pay to such other said amount, or secure the payment thereof to the satisfaction of the parties to whom the same should be due, within thirty days from the date of said award.

It was further agreed that said Mock, upon the making of said award, should execute and deliver to Bowman a quit-claim deed for the North Lawrence real estate; that whichever party shall be required will execute and deliver a quit-claim deed for the Massillon property to the party awarded the same.

It was agreed that the wives of the respective parties should join their husbands in the execution of any deed necessary to carry out the provisions of the contract; that the parties should execute to the other a bond, with securities to be approved by John Esehliman, J. P., in the sum of $2,000, conditioned upon the faithful compliance with and performance of the agreement, and of carrying out and abiding by the award that shall be made by the arbitrators; and conditioned further upon thé payment of any loss or expense attended upon the failure of either party to abide the terms of the award or agreement; that the arbitrators should determine the question as to how the costs and expenses of the proceeding shall be paid; that should the arbitrators be unable to agree unanimously upon any matters provided to be submitted to them, then the opinion of any two of them should prevail; that the articles of agreement should be in force and binding from the signing of the same, and the execution and delivery of the bonds therein provided for, and at said date said agreement shall be made a rule of the court of common pleas as therein set forth.

These are substantially the terms of the agreement entered into between these parties. In pursuance of the agreement the cause proceeded to a hearing before the designated arbitrators, as threin provided for, and a result was reached by them and filed, as contemplated, in the court of common pleas.

After the award was so returned, exceptions were filed thereto by defendant Bowman. The exceptions, among other grounds, contained the statutory grounds under Section 5611, Revised Statutes:

' 1. That the award appears on its face to be erroneous.

2. That the award was obtained by fraud.

The exceptions were heard in the common pleas court, and overruled, and judgment was entered upon the award in said court. To the finding of the court, in overruling the exceptions, \ and entering judgment, the defendant appealed to the circuit j court. A motion is made to dismiss the appeal on the ground that the case is not appealable, and, therefore, this court has no jurisdiction over the subject matter or the parties. This is the only question before us for determination.

The suit being one for the settlement of partnership matters, • or in other words an equitable action, neither party was entitled to trial-by jury.

The differences and disputes between the parties were made up by. pleadings in the court of common pleas; and at that stage of the proceedings the parties entered into an agreement to arbitrate, the substance of which has been given.

The first question that is presented is, whether the agreement to arbitrate is one under the statute providing for arbitration— title 1, division 7, chapter 2, Revised Statutes of Ohio, and being Sections 5601 to 5613 inclusive; or it is merely a common law arbitration.

It is to be observed that the agreement contemplates and fixes the time and place of trial, the arbitrators are named, the result that .they or a majority of them arrive at is to be made a rule of court, and the time for the commencement and the ending of the investigation are fixed by the agreement or contract; that the parties shall give to each other a bond for the faithful' carrying out of the award that might be rendered in the cause.

With these terms, conditions and provisions in the contract, is the arbitration one under the statute, or is it an arbitration at common law?

There is one further element or feature that should be noticed reflecting on the question as to its being a statutory arbitration or otherwise.

Section 1 of the statute providing for arbitration, Section 5601, Revised Statutes, provides that “all persons who have any controversy, except when the possession or title of real estate may come in question, may submit such controversy to the arbitrament or umpirage of any person or persons, to be mutually agreed upon by the parties, and they may make such submission a rule of any court of record in the state. ’ ’

If the possession or title to real estate is in controversy between the parties, these questions can not be submitted to arbitration, being excepted in the statute.

Is the possession or the title to real estate in controversy between these parties? It is agreed between them that the North Lawrence property is to be taken by defendant Bowman. No question about its possession or title is involved. There is real estate also in the city of Massillon, but there is no dispute or controversy about the possession or title of this property; who is to take it is to be determined by the arbitrators. The submission, therefore, is not one involving the possession or title of real estate, and not in violation of Section 5601, Revised Statutes

It is contended by counsel for defendant Bowman, that as the parties had joined issue by pleadings in the court of common pleas this fact affects the question as to their right to arbitrate or submit their controversies to arbitration. If disputes exist between parties it can make no difference whether their differences are made up. by pleadings, or whether there are no pleadings, so far as their right to submit their differences to arbitration is concerned. If they give bond as contemplated by the statute, by naming the arbitrators therein, such difference may be submitted to arbitration.

Our conclusion is that the fact issues were made up by pleadings in the common pleas court furnishes no objection or reason why the parties could not legally submit their disputes to arbitration under the statute.

The statute is broad in its provisions. All persons who have any controversy, except as to the possession or title to real estate, may submit to arbitration, and agree that it should be / made a rule of court in any court of record in the state. /

We hold, therefore, that because this is an equitable action and! the issues were joined by pleadings, these facts do not destroy' or take away the right to arbitrate under the statute. And although real estate is a part of the assets of the contending parties, yet as neither the possession or title to the real estate is in dispute, arbitration may be had.

The bonds executed by the respective parties under the agreement contain the name of the arbitrators and are in conformity to the provisions of Section 5602, Revised Statutes. The agreement further provided that a majority of the arbitrators in fixing the award should be sufficient. This could not be the ease if I the arbitration were a common law arbitration; but under the! statute, Section 5607, Revised Statutes, a majority is sufficient/

Our conclusion is that the arbitration or submission under the agreement in this case substantially complies with the statute, and, therefore,, is a statutory arbitration. The statute of arbi-N tration is a remedial statute, and being of that nature it is to be liberally construed (Springfield v. Walker, 42 Ohio St., 543). The submission being one under the statute, and the award having been returned to the common pleas court, how if at all can the award be attacked!

Section 5611, Revised Statutes, provides that the award maybe attacked: 1. When it appears on its face to be erroneous. 2. When it was obtained by fraud.

Exceptions were taken to the award by defendant on these as well as other grounds. The exceptions were all overruled and judgment was entered on the award. From this judgment the defendant appeals to the circuit court.

Does an appeal lie in such a case! This is the important question for our determination. “Where an award of arbitrators is filed in the court of common pleas, exceptions thereto overruled, and judgment upon the award, under Sections 5608, 5612, Revised Statutes, the case is not appealable to the district court under Section 5226, Revised Statutes” (Moore v. Boyer, 42 Ohio St., 312). We think this case is decisive of the questions we have here.

Arbitrators are constituted by the parties, under a statutory submission, chancellors, judges and jurors, having jurisdiction of the law and facts. Ormsby v. Bakewell, 7 Ohio (pt. 1), 98, 99, 113; Moore v. Boyer, supra.

Where jurisdiction is conferred by statute, as in this case, in matters submitted to arbitration, and no method is prescribed for bringing a case before an appellate court, the court is powerless to prescribe any method by rules and regulations either in matter of appeal or matters of error. It has been held by many authorities that conferring jurisdiction upon an appellate court, without prescribing any mode of bringing the action into the ' " court, is in effect denying the jurisdiction of the court. State v. Hanousek, 19 C. C., 303; Springfield v. Walker, 42 Ohio St., 543.

The statute regulating trials by arbitration makes no provision for bringing a ease into the circuit court by appeal, but does prescribe a remedy and the only one by attacking the award— that it is erroneous, or was obtained by fraud, collusion or misbehavior of the arbitrators; but if these grounds are overruled by the court to which the award is returned, the only way to review the holdings of the court, if at all, would be by proceedings in error. Whether error will lie in snch case is mot before us, and we do not decide that question.

Atlee Pomerene, for motion.

Sterling <& Brancher, for defendant.

We hold that the case is not appealable, and the motion to dismiss the appeal is sustained.