text:
    Cassidy, Appellant, v. The Ohio Public Service Co., Appellee.
    (No. 578
    Decided October 11, 1943.)

      Messrs. Or gill, Maschke, Wickham, Duffy & Loux and Messrs. Murray c& Murray, for appellant.

      Messrs. Flynn, Frohman, Buckingham, Py & Kruse, for appellee.
   Lloyd, J.

The plaintiff, Cassidy, commenced an action in the Court of Common Pleas on July 7,1941, for personal injuries alleged to have been proximately caused by negligence of the defendant, The Ohio Public Service Company. He filed an amended petition on October 1, 1941, to which the defendant filed a motion to strike therefrom certain specified portions, which was granted. Thereupon, on October 5,1942, the plaintiff filed a second amended petition, to which a motion to strike certain allegations therefrom and to make it definite and certain in certain specified particulars was filed by the defendant. This motion was partially granted. The journal entry of the court recording the order made with respect thereto recites, in addition to the granting of the motion, that “the court having been advised by the plaintiff that he refuses to abide by the order of this court in relation to filing a third amended petition complying with the sustaining of defendant’s specifications number 3, 4 and 5 of the motion to strike, for the reason that said plaintiff intends to appeal the rulings of this court in relation to said specifications number 3, 4 and 5, it is therefore ordered, adjudged and decreed that plaintiff’s petition be dismissed.”

From this order and judgment, the plaintiff appeals to this court on questions of law.

There could, of course, be no appeal from the order granting the motion, because such an order alone would not be a final order. The appeal here, therefore, is from the judgment dismissing the second amended petition of the plaintiff.

From the entry it appears that the court ordered the plaintiff to file a third amended petition, which he refused to do — hence this appeal. Had the court not ordered the filing of a third amended petition, and the second amended petition, without the stricken portions thereof, stated a cause of action, the plaintiff might have proceeded to tidal on the second amended petition and the trial judge in stating the issues in his charge to the jury would omit, of course, the fact statements contained in the stricken portions of the petition and any statements therein ordered by the court to be made definite and certain. If the trial resulted in an adverse verdict and judgment, the plaintiff, if his objections and exceptions to the ruling on the motion were preserved, could, on appeal, assign them with whatever other errors he might claim; and in complying with the order of the court as to filing a third amended petition, he likewise could preserve the claimed error committed in the granting of the motion. The trial court evidently was of the opinion that clarity of expression and a more easily understood statement of the issues when the action was tried, demanded, for the convenience of the trial judge, the filing of a third amended petition omitting tlaerefrom the objectionable allegations in the second amended petition. The penalty for not complying with this discretionary order of the court was the dismissal of the petition. This the trial court did, and its judgment is affirmed.

Judgment affirmed.

Carpenter and Stuart, JJ., concur.


source: Caselaw Access Project

author: Ross, P. J.

license: Public Domain

text:
    Bauer et al., Appellants, v. Industrial Commission of Ohio, Appellee.
    (No. 6404
    Decided June 5, 1944.)

      Mr. Leonard II. Shallat, for appellants.

      Mr. Thomas J. Herbert, attorney general, Mr. Robert E. Hall and Mr. Edivard A. Schott, for appellee.
   Ross, P. J.

This is an appeal on questions'of law .from the Court of Common Pleas of Hamilton county, wherein judgment was entered for the defendant upon a verdict, refusing plaintiffs the right to participate in the fund for state industrial compensation.

Two assignments of error are presented. The first deals with the refusal of the trial court to permit the asking of certain questions and the giving of answers by the attending physician of the deceased employee.

It appears from the evidence that such employee was injured when a piano, which he was assisting others in carrying on stairs, slipped and pinned him to a wall. His shoulder was injured by the pressure, and a lump developed soon thereafter in the place where the pressure had been exerted. The lump increased in size, was found to be a tumor, was removed by operation, recurred again, being larger in size, was again removed, and the employee subsequently died.

The transcript of the evidence, taken on rehearing, shows the following:

“31. Can you tell what .his condition was in June, 1942? A. Well, I would say very low.

“32. And what was the condition as it progressed from June, 1942 until September, 1942? A. Progressively worse.

“33. And do you recall the last time you saw him? A. Yes, I saw him up to the time of his death.

“34. And what in your opinion, Doctor, was the cause of death? A. Well, I would say that he had a recurrence of metastasis as we call it throughout his body and especially of the brain.

“35. I will ask you to state whether or not the condition as you found it just previous to the time of death was the outgrowth of the original condition as you first found it on January 5th or 6th, 1941? A. Yes, sir.

“36. Now, Doctor, 1 will ask you to state whether or not if an injury was received through force or pressure being' applied to the right shoulder of a person and such pressure would he sufficient to cause a lump to come up on the shoulder, whether or not that particular condition would result in a sarcoma fibro tumor?

“Mr. Zachritz: Objection.

“Referee: Overruled. Objection sustained.

“Mr. Zachritz: Exception.

“A. Whether the injury would probably result— not in every case.

“37. Not in every case?

“Mr. Zachritz: Objection.

“Referee: Overruled. Objection sustained.

“Mr. Zachritz: Exception.

“A. I would say in this particular case if I may answer it, I think that the tumor probably resulted from the injury.

“38. Doctor, I will ask you to state whether or not if a force or pressure was applied to the right shoulder of a person and the pressure was extremely hard or strong, would that be sufficient to cause a swelling or lump on the right shoulder?

“Mr. Zachritz: Objection.

“Referee: Overruled. Objection sustained.

“Mr. Zachritz: Exception.

“A. Yes, sir.”

Certainly, the evidence was competent and material. Its exclusion constituted error, prejudicial to plaintiffs, regardless of whether it be considered opinion evidence or not.

It is contended that plaintiffs made no profert, independent of the answers to the questions contained in the transcript of evidence upon rehearing.

No other evidence than that contained in such trail-script’ was competent. How then, could the plaintiff make an independent profert? What better profert could be made? The answers contained in the transcript are perfectly proper as a profert.

The following special charge was refused:

“As to the class of testimony, known as opinion evidence, it is permitted to assist your judgment in determining the probable truth of matters not ordinarily within the common knowledge of men; but you are not required to surrender your own opinion upon .such matters, if you entertain any, unless the opinions, so testified to, appear more probable than your own, and your own, are not merely conjectured, but are based upon your own experience in human affairs, or arise out of the facts and circumstances developed in the testimony submitted to your judgment.”

Counsel for plaintiffs excepted to the refusal to give such charge.

It is claimed that because the court included same in the general charge no error intervened. Such action by the court does not cure the error of the court in refusing to give a special charge, which states a correct proposition of law applicable to the facts in the case. Washington Fidelity National Ins. Co. v. Herbert, 125 Ohio St., 591, 183 N. E., 537; 39 Ohio Jurisprudence, 1024, Section 310.

The charge stated a correct rule of law applicable to the facts in this case. Its refusal constituted error, prejudicial to plaintiffs. .

The judgment of the Court of Common Pleas is reversed and the cause remanded for a new trial.

Judgment reversed.

Hildebrant and Matthews, JJ., concur.


author: Matthews, J.

text:
    Lance, Appellee, v. Slusher, Jr., et al., Appellants; Lockland Lumber Co. et al., Appellees.
    (No. 6384
    Decided March 20, 1944.)

      Mr. Paul 0. Grischy, Mr. Edward J. Corcoran and Mr. Gerritt J. Fredriks, for appellee William J. Lance.

      Mr. Harry H. Baker, for appellee Lockland Lumber Company.

      Mr. Louis J. Warm, for appellee Coppies, Inc.

      Mr. Philip J. Kennedy, for appellee National Heating Company.

      Messrs. Ginocchio & Ginocchio, for appellants, Harley J. Slusher, Jr., Dolores Slusher and Peter Cassinelli.
   Matthews, J.

This is an appeal on questions of law from a judgment foreclosing a mechanic’s lien. Although the amount due was in dispute, the trial took place without a jury before Judge Charles S. Bell, while he was on the Common Pleas bench.

While the evidence shows much confusion in the conduct of the parties in the construction of the building, the written contract between the plaintiff and Harley •J. Slusher, Jr., and his wife, shows that the plaintiff was the principal contractor, and that he bound himself to construct the building upon a cost plus basis.

The building was not completed and .there is much conflict in the evidence as to where to lay the blame. There is substantial evidence that the plaintiff performed until the Slushers failed to make payments as the work progressed, and that whatever defects existed in the work actually done resulted through their interference.

After hearing the evidence, Judge Bell found for the plaintiff and the defendant subcontractors. This finding was spread upon the journal on November 28, 1942. Having been elected to the Supreme Court, Judge Bell resigned as Common Pleas judge, effective on Novern- * ber 30, 1942.

On December 1, 1942, the defendants, Harley J. Slusher, Jr., Dolores Slusher and Peter Cassinelli filed motions to set aside the findings and for a new trial, alleging as one of the grounds that the findings were manifestly against the weight of the evidence. These motions were heard by Judge Schwab, another judge of the Common Pleas Court, to whom they had been assigned for hearing. At the hearing the contention was made that as Judge Bell had ceased to be a Common Pleas judge, the only duty of any other judge of that court to whom the motions were assigned for hearing was the nondiscretionary duty of setting aside the findings and granting a new trial. Judge Schwab overruled this contention. Thereupon a complete transcript of the evidence was furnished Judge Schwab and after considering the evidence, he overruled all of movants’ contentions and entered judgment on the findings.

Many grounds of a technical nature were assigned in the motions, but we find that none was substantial or prejudicial.

The substantial ground assigned was that the findings were manifestly against the weight of. the evidence. As to this ground we find that there is ample evidence to support the findings,- and that no prejudicial error occurred at the trial.

We would not be justified in disturbing the judgment unless it was the nondiscretionary duty of the court to set aside the findings and grant a new trial because Judge Bell who had presided at the trial had resigned. Now was it the mandatory duty to grant a new trial because of that circumstance?

It seems that such a duty did arise under common-law procedure, but because of statutory changes and facilities for furnishing an exact transcript of the evidence, the reasons for the rule have almost, if not completely, disappeared. In 39 American Jurisprudence, 194, Section 196, it is said:

“However under statutes making provision for stenographic reports of the evidence, and-enabling the succeeding judge to sign bills of exceptions, a new trial is no longer a matter of course, but is to be granted or denied at the discretion of the succeeding judge. This is true, however, only where the judge is furnished with the information, either by stenographic notes of the evidence or otherwise, which will enable him to pass fairly and intelligently on the questions which are presented by the motion; if he cannot do so, he is required to grant a new trial.”

Section 11568, General Code, provides that:

“In case of the sickness, death, expiration of his office, or other disability of a trial judge, on request of the party preparing such bill, or of his counsel, such clerk shall forward such documents to any other judge of the district, wherein the cause is pending, who shall act thereon and dispose of the matter in the time and manner required of the trial judge.”

That section seems to provide the means by which the defeated party may secure a review of the ruling, and to effect the statutory change that nullifies the reason for the common-law rule.

In In re Life & Fire Ins. Co. of New York v. Heirs of Wilson, 33 U. S. (8 Peters), 291, 8 L. Ed., 949, the court said:

“But the district judge is mistaken in supposing that no one but the judge who renders the judgment, can grant a new trial. He, as the successor of his predecessor, can exercise the same powers, and has a right to act on every case that remains undecided upon the docket, as fully as his predecessor could have done. The court remains the same, and the change of the incumbents cannot and ought not, in any respect, to injure the rights of litigant parties.”

Judge Schwab was an associate of Judge Bell on the Common Pleas Court of Hamilton county, which was and is a court presided over by many judges, any one of whom has jurisdiction to hear any pending matter.

In the case at bar, Judge Schwab by reason of having a complete transcript of the testimony was in a position to exercise the sound discretion required of any tribunal clothed with judicial power.

We therefore find that Judge Schwab was empowered to exercise the jurisdiction of the court to pass upon the merits of the motion for a new trial, and was not limited to the ministerial duty of setting aside the findings and awarding a new trial.

For these reasons, the judgment is affirmed.

Judgment- affirmed.

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


author: Stuart, J.

text:
    The Federal Land Bank of Louisville, Appellee, v. DeRan, Appellant.
    (No. 408
    Decided January 10, 1944.)

      Mr. E. II. Bonier and Mr. Ben II, Dewey, for appellee.

      Mr. Hal C. DeRan, in propria persona.

   Stuart, J.

This case originated in the trial court as an action for foreclosure of a mortgage on real estate, and is here on appeal on questions of law from the orders, decree and judgment of that court, three separate notices of appeal having been filed therein by the appellant.

The mortgage which was the basis of the action conveyed and mortgaged to the appellee, plaintiff in the trial court, the real estate described therein “with its rents, issues and profits” and further provided that:

“Upon commencement of a suit in foreclosure of this mortgage or at any time during the pendency thereof, the court in which such suit is pending, upon application of the party of the second part, its successors or assigns, may at once and without notice to the parties of the first part, or any person claiming under them, appoint a receiver for said premises to take possession thereof, to collect the rents, issues and profits,” etc.

On application of the plaintiff, the trial court on May 4, 1948, appointed sheriff H. L. Myers, receiver, and on May 11, 1943, the defendant, appellant herein, filed notice of appeal from that order of the court.

It is the contention of the appellant that the appointment was erroneous because the case was not brought within the terms of paragraph (2) of Section 11894, General Code, relating to the appointment.of receivers, which provides:

“ (2) In an action by a mortgagee, for the foreclosure of his mortgage and sale of the mortgaged property, when it appears that the mortgaged property is in danger of being lost, removed or materially injured, or that the condition of the mortgage has not been performed, and the property is probably insufficient to discharge the mortgage debt.”

Although it does not decide this express question, the reasoning of the Supreme Court in Hutchinson, Assignee, v. Straub, 64 Ohio St., 413, at pages 416 and 417, 60 N. E., 602, 83 Am. St. Rep., 764, supports the contention of the appellee that the court had authority to make the appointment under the facts in this case and the provisions of paragraph (6) of Section 11894, which reads:

“(6) In all other cases in which receivers heretofore have been appointed by the usages of equity.”

We therefore hold that under the statute, as well as under the terms of the mortgage, the action of the court in appointing the receiver was proper.

There being no bill of exceptions, we are confined in our consideration of this case to the docket and journal entries and the pleadings filed in the court below.

The final journal entry recites:

“This cause having been duly assigned for trial,, came on to be heard on its merits the fifteenth day of September, 1943, and there appeared: plaintiff, The Federal Land Bank of Louisville, by its counsel, B. EL Dewey and E. H. Romer, and defendant, Hal C. DeRan,. in personam [sic]. Upon said case being called, defendant Hal C. DeRan, .filed instanter his motion denying the jurisdiction of the court to hear this cause, and the court being fully advised in the premises, upon consideration thereof, did find said motion not well-taken and did overrule defendant’s said motion. Defendant, Hal C. DeRan, thereupon filed instanter his notice of appeal from all orders heretofore made in this cause and in open court and in the presence of counsel defendant announced his intention of witbdrawing from further participation in the trial of this-cause and Ms intention to rely solely on said appeal, and defendant, Hal 0. DeRan, did there withdraw from this cause.”

This brings us to a consideration of the notice of appeal filed September 15, 1943, referred to in the entry.

It was the contention of the defendant in the trial court, and he so contends here, that the appeal of May 13, 1943, removed the entire case to this court and that therefore the court below was without power or authority to take any action whatever in the case after the filing of that notice of appeal. The appeal was on questions of law only, and brought before this court for review the order of the trial court appointing the receiver and that order only, leaving all issues and matters' of procedure for such action as the trial court deemed proper and which hacl no bearing or effect upon the order of appointment as to which, of course, after the filing of the notice of appeal, jurisdiction of the trial court was divested.

“1. An appeal on questions of law brings before the appellate court only the final order, judgment or decree sought to be reviewed.

“2. As to the remainder of the cause, the lower court retains all jurisdiction not inconsistent with that of the appellate court to review, affirm, modify or reverse the final order, judgment or decree from which the appeal has been perfected.” In re Kurtzhalz, 141 Ohio St., 432, 48 N. E. (2d), 657.

Necessarily, every court before proceeding to consider, and dispose of any matter, either expressly or impliedly by its action in so doing, determines that it has jurisdiction, and if its express announcement of that fact constituted an appealable final order, it would be impossible for any court to proceed with the trial of any case in which its jurisdiction was challenged. It is indisputable that a holding that it did not have jurisdiction would be a final order from wbicb an appeal would lie, but a holding that it has jurisdiction is interlocutory and cannot be the basis of an appeal. The appeal of September 15, 1943, is therefore dismissed.

The trial court having proceeded with the trial of the case and having, on October 13, 1943, entered its final decree and judgment, the defendant, Hal C. DeRan, on October 16,1943, gave notice of his intention to appeal “from the judgment entries and decree * * * entered herein on the 13th day of October, 1943.”

As has been stated, there being no bill of exceptions, we must look to the final decree and judgment of the trial court as entered on its journal to determine whether the contentions of the appellant are sustained by the record.

The final decree and judgment further recites:

“This cause thereupon came on to be heard on the petition of plaintiff, .The Federal Land Bank of Louisville, the amended answer and cross-petition of defendant, Hal 0. DeRan, the reply of The Federal Land Bank of Louisville to the amended answer and cross-petition of defendant, Hal C. DeRan, the cross-petition of defendant, Zoe DeRan Raymond against defendant Hal C. DeRan, the pleadings, the evidence, exhibits and representations of counsel; trial was had and the cause was submitted to the court without the intervention of a jury, trial by jury having been expressly waived by plaintiff; on consideration whereof the court, being fully advised in the premises finds on the issues raised in favor of the plaintiff, The Federal Land Bank of Louisville.”

It thus appears that the trial court determined and disposed of all of the issues in the case as presented by the pleadings, which are the same facts and contentions stated and urged by the parties before,this court in their briefs and arguments, and as we have no bill of exceptions before as embodying the evidence referred to in the court’s judgment entry, we must presume that the trial court’s action was proper and in accordance with law.

We have carefully examined the pleadings, the motions and demurrers directed thereto and the action of the trial court thereon, and finding no error prejudicial to the appellant apparent upon the record, the judgment is affirmed and the-cause remanded for further proceedings according to law.

Judgment affirmed.

Lloyd and Carpenter, JJ., concur.


text:
    The State of Ohio, Appellee, v. Williams, Appellant.
    (No. 6336
    Decided November 22, 1943.)

      Mr. Carson Hoy and Mr. Louis F. Britten, for appellee.

      Mr. Edwin T. Heillcer, for appellant.
   Ross, P. J.

The defendant was employed by the Saunders System to service motor vehicles used by it in its business. He was permitted to use an automobile of the company to go to and from various places where his services were required by the company and to his home for a meal about midnight, his employment requiring him to work during the night.

After going to his home for a meal, defendant drove the car on an excursion of his own, being apprehended on the following day, in possession of the vehicle.

He was indicted on three counts, the first charging larceny of the car, the second, driving it without the consent of the owner, and the third, possessing it, knowing it to have been stolen.

The first and third counts were dismissed by the court. The trial on the second count resulted in defendant’s conviction. An appeal on questions of law is taken from the judgment of the Common Pleas Court of Hamilton county, predicated upon the verdict.

The contention of the defendant is that the 'evidence showing he was given permission to use the car for definite purposes, his later unauthorized use of the car for his own purposes does not justify a conviction under the provisions of Section 12619, General Code. This statute provides in part, that “whoever purposely takes, drives or operates any motor vehicle without the consent of the owner thereof’’ shall be punished as therein provided.

When the defendant departed from the use of the car for which the consent and permission of his employer had been given, and thereafter proceeded to use the car for his own purposes entirely dissociated with any business of his employer, he most certainly drove and operated it without the consent of the owner.

No one would claim that the owner could be held accountable for any harm resulting from the operation of the vehicle after the defendant proceeded upon his own affairs, which incidentally the evidence shows was to use it to convey himself and several acquaintances upon an extended carousal — ending on the following day. No consent or permission to so use the vehicle may be inferred or implied from the original consent to use it for lawful purposes connected with the master’s business.

The original talcing of the car may in one sense be considered lawful — even so, the driving and operating were unlawful and in violation of the statute, as such procedure was wholly without the consent of the owner. The provisions of the statute are in the disjunctive and severable. In another sense, however, when the defendant proceeded upon his misuse of the car, employing it for his own purposes, and for reasons entirely separate from the use originally permitted, this in itself constituted a taking as well as a driving and operation without the consent of the owner.

The judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Hildebrant and Matthews, JJ., concur.


text:
    Shriner, Appellant, v. Price, Exr., et al., Appellees.
    (No. 6364
    Decided February 21, 1944.)

      Mr. Robert A. Black and Mr. Robert F. Badgley, for appellant.

      Mr. John A. Scanlon, Mr. H. G. Hightoiver and Mr. Alfred Pfau, for appellees.
   Ross, P. J.

This appeal on questions of law from the Probate Court of Hamilton county calls into question a judgment of that court, by which a petition to vacate a former decree of the court cancelling a note payable to a decedent, was dismissed. The decree of cancellation of the note was entered at the solicitation and upon the representation of Harry J. Price, an executor of such decedent, his father, Isaac N. Price. The claim of-the plaintiff, a granddaughter and heir of the decedent, is that such cancellation was obtained by the executor through misrepresentation of the facts and by a perpetration of a fraud upon the court. The petition was dismissed at the conclusion of plaintiff’s evidence.

If there was, therefore, any substantial evidence sustaining the contention of plaintiff as to fraud, such judgment was erroneously entered.

The will of the decedent was admitted to probate on or about December 11, 1937. The defendant Harry J. Price and his mother, widow of the decedent, were named executors in the will, which had been executed by decedent in 1921. The widow also had died on November 29, 1942. She took no active part in-the administration of the estate, being some eighty years of age.

Statutory allowances were made to the widow7, but have not been paid to her or her administrator. Under the will of the decedent the widow had a life estate in decedent’s real estate, the remainder in one parcel being in the defendant Harry J. Price and a remainder in another parcel being in the plaintiff. Another parcel was devised by decedent to the defendant Harry .1. Price. With the exception of the real estate, the decedent left no property of any value except a note in the amount of $2,913.50, signed by Albert Sehnicke, a partner of the defendant Harry J. Price in the commission business formerly operated by the decedent. It was the cancellation of this note under order of the Probate Court at the solicitation of Harry J. Price, which constituted the basis for the charge of fraud set out in the petition of plaintiff. This note was dated March 3, 1930, and bore interest at the rate of six per cent per annum. It was given to the decedent as the balance due on the purchase of a one-half interest in the business of the decedent. Concurrently with such transfer of a one-half interest in the' business to Sehnicke, the decedent transferred the other one-half to his son, Harry J. Price. It is apparent that prior to such transfer, the decedent and his son, Harry J. Price, had been conducting the business as equal partners, without any formal agreement. In the contract of sale to Sehnicke appeared a covenant providing:

“Said I. N. Price does hereby covenant and agree with said Albert Sehnicke that he has a good right to assign his said interest in said partnership and that the same is free from any and all claims other than the present existing indebtedness of I. N. Price & Company as a going concern. ’ ’

At this time the partnership owed The First National Bank $9,800. It is Sehnicke’s claim that he knew nothing of such indebtedness and that it did not constitute an indebtedness covered by the language of the covenant.

It appears, however, that the partnership of Sehnicke and the younger Price continued from 1930 without any assertion of the claim of fraud by Sehnicke, although it is equally apparent that no effort was ever made by the decedent to collect tbe note. In the inventory it is listed as a “doubtful” asset. The partnership of the younger Price and Schnicke, from timé to time, reduced the indebtedness to the bank, by payments out of partnership funds, to the extent of $6,300. However, the partnership in a running account with the bank had a balance of loans due the bank, at the time of the death of decedent, of $7,800. The financial status of the partnership was never of such a structure as to permit loans on its own responsibility and the bank was induced to continue credit to the partnership only by reason of a continuing guaranty of the decedent covering loans to the partnership. Shortly before his death, the decedent executed a blanket guaranty to the extent of $7,900, which was in effect at the time of his death and represented the basis for a proof of claim against the estate of decedent for the balance of loans from the bank.

It is apparent that this indebtedness of the partnership was of course its primary obligation. The partnership had no assets to meet such a claim. The claim was next an obligation of the individual partners and, by reason of the guaranty of decedent, also a charge against his estate. This indebtedness was paid actually by Harry J. Price, who mortgaged property devised to him by the decedent. Schnicke induced his wife to execute a mortgage to Harry J. Price, securing the repayment to Price of one-half of such amount, it being agreed that such security should exist until the entire sum of $7,000 should be repaid to Price out of partnership funds. In the final account filed by the defendant Harry J. Price it appears that such $7,000 was paid out of the estate.

In the written agreement between Harry J. Price and his partner, Albert J. Schnicke, embodying the settlement of the indebtedness due the bank, which was paid by Harry J. Price, it was stipulated that Price should apply to the Probate Court for a cancellation of the indebtedness of Schnicke to the estate of decedent, represented by the note payable to decedent in the sum of $2,913.50 and interest. The obligation of Schnicke in securing Price to the extent of $3,500 was made dependent upon the guaranty of such application to cancel such note. The Probate Court was not advised of the existence of this contract at the time the application-and order of cancellation were made. It does not appear that the plaintiff had any notice of the application. It does, however, appear that the various matters herein touched upon had been the subject of conference and discussion between the attorneys for the various parties for some time and the result of such conferences was the compromise effected as embodied in the agreement entered into between Price and Schnicke.

Schnicke at no time presented any claim to the executors of the estate of the decedent based upon his claim of fraud and misrepresentation in matters involving the sale to him of a one-half,interest-in the business by the decedent. It is the claim of the plaintiff, therefore, that Schnicke could have asserted no claim against the estate of decedent at the time his note to the decedent was cancelled, as its presentation was then barred; that, hence, the action of Harry J. Price, as executor of the estate of decedent, in representing to the Probate Court “that it was for the best interests of the estate” that such note be compromised and cancelled was fraudulent; and that the order of cancellation should, therefore, be vacated.

Not having presented such claim to the estate it is undoubtedly true that Schnicke never could have initiated an independent action based upon such claim, the statutory time for filing having elapsed. This situation, however, would not necessarily result in preventing his advancing such claim as a defense, if, on the, contrary, action were instituted against him by the estate.

It is undoubtedly the general rule that even though , a claim is barred at the time an action is instituted against a defendant, he may set up such claim as a setoff or defense to the extent such claim will equalize the claim of the plaintiff. lie may not recover more than the plaintiff’s -claim, but may meet-it to the extent his claim equals that of the plaintiff.

This court has twice had before it the application of . the statute of limitations to a cross-demand not barred at the time the petition was filed, but barred before the cross-demand was embodied in a defensive pleading. Bronson v. Mau, 31 Ohio Law Abs., 653; Eagle Savings & Loan Assn. v. West, 71 Ohio App., 485, 50 N. E. (2d), 352. In the latter case this court, possibly in obiter, went further, stating at page 496 of the opinion:

“Indeed, the weight of authority goes further and holds that the use of a cause of action as a shield or defense is not precluded, even though the statutory period has run against its use for affirmative relief at the time of the filing of the action in which it is used. Peterson v. Feyereisen, 203 Wis., 294, 234 N. W., 496, 73 A. L. R., 571, and note.”

Section 11321, General Code, provides:

“When cross-demands have existed between persons under such circumstances that if one had brought an action against the other a counterclaim or set-off could have been set up, neither can be deprived of the benefit thereof by assignment by the other, or by his death. The two demands must be deemed compensated so far • as they equal each other.”

In In re Estate of Butler, 137 Ohio St., 96, 28 N. E. (2d), 186, paragraph five of the syllabus reads:

“Defenses are not barred by the statute of limitations, and cross-demands must be deemed compensated as soon as they mature insofar as they are equal to each other.”

Again, at page 108 of the opinion, it is stated:

“This court agrees with the position of the Court of Appeals in this matter. It is a general rule that defenses are not-barred by the statute of limitations and that cross-demands must be deemed compensated as soon as they mature insofar as they are equal to each other. See Section 11321, General Code; 25 Ohio Jurisprudence, 573, Section 230; Hart v. Church, 126 Cal., 471, 58 P., 910; First Natl. Bank of Chicago v. Rogers, Brown & Co., 299 F., 602; Warner v. Sullivan, 249 Mich., 469, 229 N. W., 484; 16 A. L. R., 339.”

The supporting authorities noted fully sustain the conclusion of the Supreme Court.

Reason and justice favor this rule. In the instant case it might well have been that Schnicke, although feeling he had a just claim against the decedent or his son, who had assumed decedent’s obligations, asserted no claim since, and as long as, no claim was made against him on the note. The relations of the parties were intimate and required mutual confidence and cooperation. The decedent apparently never made any effort to assert the claim for many years. The note was executed in 1930 and cancelled in 1939. Each evidently considered the entire matter in repose. Why then should Schnicke file a claim against the estate, a claim which apparently by mutual agreement with the decedent and his son was equalized by a complementary obligation.

The purpose of the statute of limitations is to accomplish the repose of stale obligations.

For seven years the decedent had allowed the note to remain quiescent. No interest was paid thereon. Its appearance as ail asset in the estate of decedent, however, required Schnicke to take some action to remove it as a cloud against him. The final arrangements were entirely equitable as far as the interests of plaintiff in the estate of the decedent were concerned. Not the slightest suggestion of fraud, therefore, was made to appear and the court committed no error in dismissing the petition at the close of plaintiff’s case. The exercise of discretion by the executor, under order of the court, in refraining from precipitating the estate into litigation, the outcome of which was extremely doubtful, may not be questioned.

There is some question made of the position of the trial court in holding that the agreement between Schnicke and Price was conclusive on plaintiff. Of course, this agreement could not be conclusive, but the action of the court, in the view herein taken of the case, was not prejudicial to plaintiff.

Some question is also raised in that the allowances to widow were not paid. Such payment could only have been accomplished by selling the real estate. It is apparent that none of the parties, including the widow and plaintiff, desired such action.

The judgment is affirmed.

Judgment affirmed.

Hildebrant and Matthews, JJ., concur.


author: Carter, J.

text:
    The State of Ohio, Appellee, v. Youst, Appellant.
    (No. 780
    Decided May 27, 1943.)

      Mr. Ross Michener, prosecuting attorney, and Mr. A. G. Lancione, for appellee.

      Mr. Victor J. Kehrer and Messrs. Kerr S Irwin, for appellant.
   Carter, J.

On January 13, 1943, tlie grand jury of Belmont county returned an indictment against the accused charging that he “did commit fornication with one Lynn Youst by * * * having sexual intercourse with the said Lynn Youst, the said Lynn Youst being then and tliere the daughter of the said Samuel Youst,” of which relationship Samuel Youst then and there had knowledge.

The accused entered a plea of not guilty and on February 2, 1943, the cause came on for trial to the court and jury, resulting in a verdict of guilty. A motion for new trial was filed, overruled, and the accused sentenced. Appeal is prosecuted to this court.

The evidence indicates that Lynn Youst was an adopted daughter of the accused.

Section 13023, General Code, provides:

“Whoever, being nearer of kin by consanguinity or affinity than cousins, having knowledge of such relationship, commit adultery or fornication together, shall be imprisoned in the penitentiary not less than one year nor more than ten years.”

Was the accused, under the evidence, guilty of the crime of incest as above defined? We must start out with the premise that there are no common-law crimes in Ohio, and that criminal statutes must be strictly construed. Lynn Youst was not the daughter of the accused as we understand that relationship. She was an adopted daughter only; she was not of the blood of Samuel Youst or of his wife. None of their blood coursed through the veins of the adopted daughter. The relationship was not actually one of father and daughter, or mother and daughter, but that of ádopted daughter, and the fact that she was an adopted daughter could not by the wildest stretch of the imagination constitute her the natural daughter of the accused.

In the case of People v. Kaiser, 119 Cal., 456, 51 P., 702, the court said:

“The word ‘daughter’ means * * * ‘an immediate female descendant,’ and not an adopted daughter, a stepdaughter, or a daughter-in-law.”

Of course, the parties were not related by consanguinity. Was Lynn Youst a blood relative of the wife of Samuel Youst? This, of course, must be answered in the negative.

In Chinn v. State, 47 Ohio St., 575, 26 N. E., 986, 11 L. R. A., 630, affinity has been defined as follows:

“Affinity is the relationship which arises from marriage between one of the spouses and the blood relations of the other, and does not include persons related to the other simply by affinity. Therefore a husband is not related by affinity to his wife’s brother’s wife, and sexual intercourse between them, though immoral, is not an indictable offense within the provisions of Section 7019, Revised Statutes.”

If affinity is the relationship which arises, from marriage, between one of the spouses and the blood relations of tlie other, certainly the marriage between Youst and his wife created no blood relationship between the wife and the -adopted daughter. We think our Supreme Court has settled this question as above indicated, and we find no instance where that court has subsequently changed or in any way modified (he definition or its applicability to the case at bar, and we feel impelled to follow that holding until the Supreme Court of the state' disapproves or modifies the same, and it is unnecessary to look beyond the confines of this state for a definition of the word “affinity,” referred to in the incest statute.

In the opinion, the trial court stated that in its judgment affinity was a broader term than indicated in the case of Chinn v. State, supra. However, we are of the view that if the Legislature desires to include others than the blood relations of the other spouse, so as to include those adopted, that body should act and the meaning of the statute should not be extended by judicial construction. Whether the accused may be guilty of any other crime we do not decide, but we are clearly of the opinion that the accused cannot, under the evidence, be legally convicted of the crime of incest, and that the conviction and sentence are contrary to law. This being the case, there is no reason or justification for granting a new trial.

The judgment of the Court of Common Pleas is reversed and the accused discharged.

Judgment reversed.

Phillips, P. J., and Nichols, J., concur.


author: Doyle, P. J.

text:
    Groves, Appellant, v. Gray et al., d. b. a. Mt. Vernon Cleaners, Appellees.
    (No. 3493
    Decided September 25, 1942.)

      Messrs. Brouse, McDowell, May S Bierce, for appellant.

      Mr. Donald Reichert, Mr. Emamiel N. Deiis and Mr. Samuel Friedman, for appellees.
   Doyle, P. J.

The plaintiff instituted this suit in the Court of Common Pleas of Summit county against the defendant partners, who were engaged in the dry cleaning business. She alleged damages to a fur coat which was placed in the care of the defendants for cleaning and storage.

Error is predicated upon the court’s refusal to permit the plaintiff to testify as to the worth of the coat at the time of its delivery to the defendants, and in predicating a directed verdict for the plaintiff in the amount of $15 solely upon the testimony of an expert witness called on behalf of plaintiff, who testified as to the market value of the property, although there was in evidence, as an exhibit, the damaged coat in addition to the proffered testimony of the plaintiff.

The general rule applicable to the admissibility of an owner’s testimony on the question of value of personal property is well stated in 3 Wigmore on Evidence (3 Ed.), Section 716:

“The owner of an article, whether he is generally familiar with such values or not, ought certainly to be allowed to estimate its worth; the weight of his testimony * * * may be left to the jury; and courts have usually made no objections to this policy.”

The Ohio rule, following the general rule, is pronounced in the following terms:

“It is established in Ohio that the owner of personal property, because of such ownership, has a sufficient knowledge of its value to be qualified to give an opinion thereon which will be some evidence of the actual value, though not conclusive. The rule is especially applicable where the property may have a peculiar worth to plaintiff. * * *” 17 Ohio Jurisprudence, Evidence, Section 379, and cases cited in support of the text.

The Supreme Court of Ohio, in treating the question of value of articles of property for personal use in an action by an owner of such property for conversion, stated:

“3. * * * that where the property converted by the defendant to its use consists of articles for personal use, which have been used by the owner and therefore have little or no market value, the measure of damages is the reasonable value to the owner at the time of conversion.” Erie Rd. Co. v. Steinberg, 94 Ohio St., 189, 113 N. E., 814, L. R. A. 1917B, 787, Ann. Cas. 1917E, 661.

This rule, applied by the Supreme Court to an action in conversion, is equally applicable to an action for damages of the kind under consideration.

The “market value” rule is not fundamental nor of universal application. It is one of expediency because under many circumstances an owner can make himself whole by purchasing on the market an adequate substitute. It is a subordinate rule and applicable only “where it accomplishes the purpose of the fundamental rule. The fundamental rule is that the owner must be compensated for the loss sustained * * See Rogers v. Standard Steel Castings Co., 16 Ohio App., 474, 480; Annotation 63 A. L. R., 240; 15 American Jurisprudence, Damages, Section 126.

The rules deducible, therefore, from textbooks and cases may be properly stated in the following terms:

1. In an action for damages to wearing apparel, the owner thereof may testify to its worth or value to him immediately before the damage occurred and to its worth or value to him after the damage.

2. Expert witnesses may likewise testify on the question of market value.

3. It is the duty of the trier of the facts to determine, from all the evidence, the reasonable damage to the owner, because in many cases wearing apparel has a greater value to the owner than the price it will bring in a second-hand market; and to confine the proof of damage to market value only, in cases involving the worth of personal property which is specially adapted to the use of the owner, would in many cases deprive the owner of his right to have a jury assess his actual damage.

The judgment is reversed and the cause remanded.

Judgment reversed.

Stevens and Washburn, JJ., concur.


author: Doyle, J.

text:
    The Andwur Mortgage-Loan Co., Appellee, v. Murbach et al., Exrs., Appellants, et al.
    (No. 1075
    Decided January 14, 1944.)

      Mr. R. H. Rice, for appellee.

      Messrs. Y andemnrh $ Ycmdemark, for appellants.
   Doyle, J.

This is an action for a declaratory judgment, filed in the Court of Common Pleas of Lorain county, in which, among other things, an order of the court was sought to determine the effect of language contained in a real estate mortgage. The mortgage under inspection was given by one H. W. Ingersoll to the Elyria Savings & Trust Company as additional security for various promissory notes executed by the mortgagor to the bank. Some of the notes were signed and executed by Ingersoll individually; some were cosigned by various individuals; some of the notes had collateral security and some had none.

The controversial language in the instrument is as follows:

“* * * whereas the said II. W. Ingersoll has from time to time executed and delivered to The Elyria Savings & Trust Co. his certain notes aggregating more than thirty thousand dollars ($30,000), this mortgage is given as additional security for said notes, and all renewals thereof and new loans, not exceeding the total amount of thirty thousand dollars ($30,000), it-being understood that this mortgage shall not be held as security for more than one-tliird of the amount of two certain notes signed by John Murbach, Win. T. Parsch,.H. W. Ingersoll, and others. Said collateral security now or hereafter held for the above-mentioned notes shall be exhausted before resort shall be had to the security hereby given; nor shall this security be foreclosed within two years from date hereof.”

The various notes were reduced to judgment, and the executors of the estate of John W. Murbach, deceased, were compelled to pay almost in their entirety the notes upon which the decedent was a cosigner. Subsequently, the Murbach estate recovered judgment against H. W. Ingersoll for contribution.

It is the claim of the Murbach estate that, “in view of the fact that Ingersoll owes the Murbach estate more than $10,000, until such time as the Murbach estate receives $10,000 from the assets described in the mortgage,” the Andwur Mortgage-Loan Company (assignee of the notes, judgments and securities in controversy from the Elyria Savings & Trust Company) is entitled to no part of the mortgage or its proceeds.

The Andwur Mortgage-Loan Company, on the other hand, submits the following alternative quaere: Does the above-quoted language in the mortgage ‘ ‘ A. Create any right, available to the Murbach estate, to require that any part of the proceeds of this mortgage be applied to the ‘Murbach notes’?” or “B. Leave the holder' of this‘mortgage (the Andwur Mortgage-Loan Co.) free to apply all such proceeds as it might see fit, subject only to the limitation that not more than one-third thereof could be applied on the ‘Murbach notes’?”

The Court of Common Pleas determined that the mortgage did not “operate to confer on, or create in, John Murbach or the executors of his estate, any rights in said mortgage, or in funds derived from sale of all or any part of the real estate so mortgaged.” Also, that the conditions of the mortgage created “a limi-' tation on the right of the mortgagee to apply the funds derived from sale of all or any part of the real estate so mortgaged, rather than * * * any obligation to apply any part of said funds to the indebtedness evidenced by notes signed by John Murbach and others.” The court therefore “ordered, adjudged and decreed that Ralph Murbach and the Elyria Savings & Trust Co., executors-of the estate of John Murbach, deceased, have no right, title or interest in the mortgage * * * held by plaintiff or the proceeds from sale or sales of the real estate therein described.”

From this judgment, appeal was perfected to this court on questions of law and fact.

It is not disputed that, on the date of the execution of this mortgage for additional security, the mortgagor, Ingersoll, owed the bank individually approximately $53,000. He, with five other persons, including John Murbach, owed the bank approximately $29,000 on one note, and, with six other persons, including John Murbach, owed the bank approximately $13,000 on another one. The makers of the latter two notes agreed that their liability as between themselves should be equal, as evidenced by contemporaneously executed instruments.

- The legal effect of this language was determined by this court in two previous actions between the Murbach estate and Ingersoll, which actions were heard and' decided together (Murbach v. Ingersoll, 32 Ohio Law Abs., 410). A discussion of the principles of law therein set out is not necessary to here repeat.

Suffice it to say-that, on the general subject, the weight of authority in this country, which has been generally followed in Ohio, is well stated in 13 American Jurisprudence, Contribution, Section 75, in the following language:

“* #.« where one of several co-obligors in aequali jure is compelled to pay the entire debt, and, being entitled to contribution, seeks such relief in equity or in a court which may, under the code practice, apply equitable principles, not only collateral security held by the common creditor, but also the principal obligation itself and the creditor’s rights and remedies by way of lien or otherwise may, if it appears that the achievement of substantial justice between the parties requires it, be treated as still subsisting for the benefit of the paying obligor, to the extent of the amount equitably due as contribution from other co-obligors, at least where an intention on the part of the paying-debtor not to satisfy or discharge the principal obligation or security as against his co-obligors appears or may be presumed.”

See, also, Restatement of the Law of Restitution, Section 81.

While this general principle would be applicable to the instant case if Ingersoll’s only obligations to the bank or its assignee were the two so-called Murbach notes, other principles must be applied under circumstances as depicted in the record before us:

First, when Ingersoll gave additional collateral, it was his right to select the debt it was to secure, and, in the event of such selection, it would be the duty of the bank or its assignee to-so apply it, in the absence of a special agreement to the contrary.

Second, in the absence of any such agreement or provision, the hank or its assignee could apply it to any one of the Ingersoll obligations. See Gaston v. Barney, 11 Ohio St., 506; Advance Thresher Co. v. Hogan, 74 Ohio St., 307, 78 N. E., 436.

Bearing in mind the foregoing respective rights, we must look to the language of the mortgage, because the record shows no other direction by Ingersoll except that which is therein contained.

The mortgage recited that it was to be used as additional security for all of Ingersoll’s notes and new loans, but was not to be held “as security for more than one-third of the amount” of the two Murbach notes.

The primary index to the intention of Ingersoll or the primary guide for the interpretation of his language, is the literal and grammatical sense of the words employed. The words, taken apart from the preceding specific language, can only mean that he meant to provide for a restriction of power or a limitation of authority. In other words, he meant that the mortgage was given as additional security for his various obligations, without direction as to its use, except that, if the bank or its assignee, in the event of default, determined to apply the proceeds to the Murbach notes, then and in that event it should not be used in payment for “more than one-third of the amount.”

Examination has been made of the other claims and counterclaims of the litigating parties, and, in consideration of them, in view of the foregoing interpretation of the mortgage, we are of the opinion that the same judgment as was entered in the Court of Common Pleas should be entered in this court.

Decree accordingly.

Stevens, P. J., and Washburn, J., concur.


author: Guernsey, P. J.

text:
    Hines, a Taxpayer, Appellee, v. City of Bellefontaine et al., Appellants.

      (No. 885
    Decided October 1, 1943.)
    . Mr. George Harris, for appellee.

      Mr. Meade C. Robinson and Mr. Samuel A. Bowman, for appellants.
   Guernsey, P. J.

This is an appeal from a decree of the Common Pleas Court of Logan county, Ohio, enjoining the city of Bellefontaine, Ohio, from performing a contract entered into by it, through its director of public service and safety, with The Buckeye Tncubator Company, a Delaware corporation, of Spring-held, Ohio, for the leasing, with option to purchase, of certain parking meters from such company.

The action was originally brought by Paul T. Hines, a taxpayer, on behalf of the city of Bellefontaine, Ohio, as plaintiff against the city of Bellefontaine, Ohio, and Z. B. Costin as director of public service and safety of that city, defendants, to enjoin the city from entering into the contract above referred to.

Subsequently, The Buckeye Incubator Company, a corporation organized under the laws of Delaware, with its principal place of business at Springfield, Ohio, was, on its own motion, made a party defendant in the action.

Following this, plaintiff having learned that the contract had been entered into prior to the commencement of the action by him, filed an amendment and supplement to his petition, alleging such fact, and asking that the city be enjoined from performing the contract.

All the defendants then filed their joint answer to plaintiff’s petition and amendment and supplement thereto.

The case was submitted to this court de°novo upon the pleadings mentioned and upon a transcript of the evidence submitted at the trial of the cause in the Common Pleas Court, and upon additional testimony submitted on the trial of the cause in this court.

From the admissions in the pleadings and from the evidence, the following facts appear:

Plaintiff is a resident and taxpayer of the city of Bellefontaine, Ohio, a municipal corporation; and he brings this action as such taxpayer on behalf of the city and all its taxpayers.

On the 16th day of May, 1942, plaintiff made written demand on Meade C. Robinson, the city solicitor of Bellefontaine, that he file this action and he refused to do so.

Defendant Z. B. Costin is the director of public service and safety of such city, duly appointed, qualified and acting, and has been at all times hereinafter mentioned.

On January 29, 1942, the city council of Bellefontaine duly passed, and certified to the mayor of the city that it had passed, Ordinance No. 1674 of such city, a copy of which ordinance is as follows:

“Ordinance No. 1674

“Authorizing and directing the director of service and safety of the city of Bellefontaine, Ohio, to advertise for bids for parking meters.

“Be it ordained by the council of the city of Bellefontaine, Ohio:

“Section 1. That the director of service and safety of said city be and he hereby is authorized, directed and empowered to advertise for bids for the nine months rental, with option to purchase, of 350 parking meters, more or less, all as provided by the General Code of Ohio.

“This ordinance shall take effect and be in force from and after the earliest period allowed by law.

“Passed January 29, 1942 Dalton A. Young

“Attest: President of Council

“Harry E. Travis Robert B. Cook, Sr.

“Clerk of Council Mayor.”

Such ordinance was duly approved by the mayor of the city on January 29, 1942.

On March 3 and on March 10,1942, the director duly published in the Daily Examiner, a newspaper printed, published and of general circulation in such 'city and in Logan county, Ohio, in which the city is-situated, an advertisement of the receipt of bids by Z. B. Costin, director of public service and safety of such city, for a nine-month rental, with option of purchase, of 350 parking meters, more or less, until twelve o’clock noon, March 17, 1942, which advertisement is in the words and figures following, to wit:

“Advertising for bids for parking meters.

“Public notice is hereby given that the city of Bellefontaine, Ohio, will receive sealed bids for the nine months rental, with option to purchase, 350 parking meters, more or less, until twelve o’clock noon March 17, 1942. No specifications will be published other than the following instructions to bidders.

“Said meters shall be of the manual or automatic •type and shall specify the coin or coins to be deposited therein, and the amount of parking time allowed for each amount deposited.

“Each bidder shall submit specifications of his meter, its method of operation and method of installation, and shall also submit a sample parking meter of the same general type he proposes to furnish under his bid.

“Each bidder shall be required to deposit with the city of Bellefontaine, a cashier’s certified check on an accredited bank in the amount of $500 to guarantee his or its entrance into a contract if given the award.

“The bids shall be quoted on a trial basis for a period of nine months with option to purchase at the end of the trial period.

“The bidders must look to the receipts from the meters for the payment of the rental and purchase and shall receive all rentals from said meters during the nine months’ period, or until said meters are fully paid for, less the cost of collecting the deposits in said meters.

“Said city reserves the right to order the removal . of said meters at any time during the nine months’ period upon thirty days notice to the successful bidder, said removal to be at the expense of the successful bidder.

“At the conclusion of the 9 months’ period, the successful bidder shall credit the rents so received by him upon the purchase price of said meters, less costs of collection and the city reserves the right to renew the contract to purchase at the end of said 9 months’ period under the same terms and conditions contained in the original contract.

“The bids submitted shall include the cost of installation, and said meters shall be installed at locations designated by the city of Bellefontaine.

“The bidders shall state for what period of time, if any, they will service the meters in operation and shall further specify within what period of time said meters shall be serviced or repaired after report has been made of such need by said city.

"Each bidder shall also state what accessories, if any, they will furnish with his bid, such as coin-carrying cases, parts, etc. Each bidder shall furnish a parts list with his bid.

"No person, firm or corporation shall be disqualified or prevented from submitting a bid hereon.

"The successful bidder shall furnish a performance bond in the full amount of the contract.

"The city of Bellefontaine reserves the right to reject any or all bids.

"Z. B. Costin,

"Director of Public Service and Safety,

"City of Bellefontaine, Ohio,

"March 2, 1942.”

On March 17, 1942, the director opened bids and found the bid of The Buckeye Parking Meter Company, a division of The Buckeye Incubator Company of Springfield, Ohio, to be the lowest and best.

At that time the only parking meter legislation in effect in the city of Bellefontaine was Ordinance No. 1674, above referred to, and no other such legislation was passed by council until April 13, 1942, when the council duly passed, and certified to the mayor that it had passed, Ordinance No. 1682, entitled:

"An ordinance relating to traffic and regulating the use of public streets and highways in the city of Bellefontaine, Ohio; prescribing regulations relative to the parking of vehicles upon such public streets and highways; providing for the installation, operation, maintenance, supervision, regulation and control of the use of parking meters; defining and providing for the establishment of parking meter zones upon the public streets and highways, providing for the payment thereof and for the supply of parts .therefor exclusively from the receipts obtained from the operation of parking meters; providing for the enforcement hereof and providing penalties for the violation hereof; and authorizing the director of safety and service to enter into a contract for parking meters with the company submitting the lowest and best bid therefor, due advertisement having been had according to law.”

The various matters set forth in the title to the ordinance are the subjects of legislation in the ordinance but the legislation on such matters is limited to and comes within the general subject of the parking of vehicles in the city of Bellefontaine.

Section 5 of this ordinance is as follows:

“Section 5. The Director of Service and Safety is hereby directed and authorized to provide for the installation, regulation, control, operation and use of parking meters in good workable condition, and said Director of Service and Safety of said city of Bellefontaine is hereby vested with the power and authority and directed to enter into a contract for two-hundred (200) parking meters, more or less, after due advertisement had, according to law, after approval by the Board of Control of the city of Bellefontaine, with the lowest and best bidder furnishing, installing and leasing, to the city of Bellefontaine two-hundred (200) parking meters, more or less, the cost of said installation and leasing to be provided for solely from receipts, funds and moneys obtained from the operation of said parking meters. It is further provided that the contract for the parking meters shall contain an agreement for a trial period of nine (9) months or less, from the completion of the installation, which will give the city the right to discontinue the operation of the parking meters at the end of said nine months’ period, or before, at the option of the city, or to purchase or to renew the contract for said meters.”

Such ordinance was duly approved by the mayor of the city on April 21, 1942, and was presumably published as required by law.

The bid of The Buckeye Parking Meter Company, a division of The Buckeye Incubator Company, on which bid the award of contract was made, reads as follows:

“Buckeye Parking Meter Proposal for the City of Bellefontaine, Ohio.

“This proposal is made and entered into and executed in triplicate, this 16th day of March, 1942, to furnish manual type Buckeye Parking Meters for the city of Bellefontaine, Ohio, on the following’ terms:

“1. We will furnish the city of Bellefontaine, Ohio, buckeye parking meters with straight nickel, which gives you one hour for each nickel; or'penny-nickel type meters, which gives 12 minutes for one penny and one hour for one nickel, to be used on the streets of your city in the congested business districts, estimated at three hundred fifty (350) more or less, as needed from time to time. The meters are modern and not experimental type.

“2. The meters are to be leased or rented on a basis of $2.75 each net to us per month, payable on or before the 5th day of each month and each 30 days after the installation of said meters during the term of this lease. At the end of the nine months trial period, if all of the above rentals have been paid, we will credit you with the total amount paid from rentals and sell you the meters for a balance of $26.50. You can pay this balance less 5% cash in 30 days; or we will extend this lease on the same terms and basis until t'he total rental receipts amount to the balance due on the meters; and at that time we will give you a bill-of-sale covering said meters. These prices include freight and installation charges.

“3. Buckeye parking meters come complete with standard, base, one extra coin box for each meter and five free meters to the 100, or one meter with each 20 meters contracted for and installed. We will also include two carrying cases for coin boxes for the collector.

“4. Service: We will give you 30 days free service with one of our trained service men, who can teach one of your employees how to service the meters. This service will be without any charge.

“5. We have read your advertisement for bids carefully and agree to all the terms; and in regard to rentals quoted in paragraph 2, if you prefer to give us the total receipts from the meters, we will accept this in lieu of paragraph 2 and give you back 50% of the gross receipts for your policing and collecting. However, it is agreed and understood that any meters that do not take in a minimum of $2.75 per month, we will have the right to reduce the amount of meters, so that the total will average $2.75 per month,

“6. The Buckeye Meter Company agrees that all rentals are to be paid solely from meter receipts and that it will not hold the city liable for the rentals from any other source.

“7. You will find attached to this proposal the following :

“1. Specifications of our meter and method of operation and installation.

“2. Certified check for $500 on the Lagonda National Bank, Springfield, O., payable to the city of Bellefontaine, O.

“3. Parts list and prices, as called for.

“4. We will carry sufficient parts in your city to properly service the meters, so there will be no delay at any lime.

“8. Warranty: The Buckeye Meter Company does hereby warrant and guarantee said meters against defects in workmanship, construction and material for a period of one year from date of installation. It is understood and agreed the Buckeye Meter Company shall not be obliged to replace any part or parts of said meters which may be damaged as a result of tampering, maliciousness, accident, act of God, or any other external force or means.

•“9. Delivery: We agree to commence the installation and delivery in 20 days from time the contract is accepted by us and to complete same in another 10 days, as we have all of the materials on hand; unless prevented by strikes, fire or acts beyond our control.

“10. If at any time during the term of this lease, or any renewals thereof, any taxes are levied upon the meters herein leased, which are the property of the company, such as personal property taxes, sales tax, excise or license or use tax, or taxes of any nature, such taxes will be advanced by the company and the city-shall reimburse the company in full for all taxes or assessments or license fees -so advanced only from the gross receipts of the meters before the net revenue is computed for the purpose of covering any taxes. We agree to the thirty-day removal clause set forth in the legal advertisement requesting bids for parking meters.

“11. The city of Bellefontaine warrants that all necessary and proper steps have been taken by the duly constituted governmental and municipal authorities authorizing the execution of this agreement, and that all necessary or proper ordinances and/or resolutions have been adopted authorizing and providing for the installation of said meters and the operation thereof, and agrees that it will police the said meters after installation, and shall properly enforce all ordinances and resolutions pertaining thereto.

“12. No agent of the Buckeye Meter Company shall have the power or authority to alter the printed terms of this agreement, except the president or secretary.

‘ ‘ 13. This contract shall not be binding on the Buckeye Meter Company until accepted and affirmed at its office in the city of Springfield, Ohio, by one of the officers mentioned in this paragraph and when duly accepted by both parties. No other representations or agreements, written or oral, express or implied, have been made by either party.

“Buckeye Meter Company,

“A division of and owned by The “Buckeye Incubator Company.

“By Gleo. H. Partin,

“Sales Manager.”

The Buckeye Parking Meter Company is not a legal entity but is merely a designation for book-keeping purposes, of a division of The Buckeye Incubator Company, a Delaware corporation engaged in the manufacture and sale of parking meters.

No bids were advertised for or taken after the passage of Ordinance No. 1682.

Five different persons or corporations submitted bids for the furnishing of parking meters to the city in response to the advertisement, two of the bidders submitting bids for the furnishing of automatic-type meters and three for manual-type meters.

The present stage of development of parking meters is such that it is impossible to draw structural specifications upon which competitive bidding may be based, as specifications particularly and exactly describing one meter would necessarily exclude others.

In cities of the size and character of Bellefontaine, in which parking meter regulations similar to those prescribed in Ordinance No. 1682 are in effect, and in which parking meters of the type specified in the ordinance and in the contract between the city and the Buckeye Incubator Company are installed, the deposits in such parking meters average approximately four dollars per month per meter.

The contract, the performance of which is sought to-be enjoined, is in writing, is between The Buckeye Incubator Company and the city of Bellefontaine, by Z. B, Costin its director of public service and safety, and is signed by The Buckeye Incubator Company by its vice-president and secretary, and by the city of Bellefontaine, Ohio, by Z. B. Costin, director of public service and safety.

While it purports to be entered into under date of the 16th day of May, 1942, it was actually executed on May 18, 1942. Before its execution it was approved by the board of control of the city, composed of Z. B. Costin, the public service and safety director of the city, and Robert B. Cook, Sr., the mayor of the city, but by reason of the absence of the clerk, such approval was not entered upon the records of the board of control.

This contract was partially prepared by and fully approved by the city solicitor of Bellefontaine, before execution, although he did not indorse his approval thereon.

The provisions of the contract, essential to the consideration of this cause, are as follows:

The Buckeye Incubator Company agrees to furnish the city of Bellefontaine, and the city of Bellefontaine agrees to accept, under the terms and conditions hereinafter provided, 350 buckeye parking meters, more or less, and The Buckeye Incubator Company agrees to install the same at locations to be selected by the city.

The meters will be installed promptly after awarding the contract, and the purchase price of the meters should include freight and installation charges.

Tlie Buckeye Incubator Company agrees to lease or rent such meters to the city of Bellefontaine, Ohio, for a trial period of nine months and after the city of Bellefontaine has -deducted from the receipts taken in by such meters each month its entire cost in connection with making the collections and maintaining such meters the company shall receive the balance of such receipts as rent for the meters, provided however, that in no event shall the company receive more than $2.75 per month per meter as rent therefor.

The city will make the collection from the meters and after deducting the collection cost and maintenance, will remit the proceeds so collected, to the company at Springfield on or before the fifth day of each month after the installation of the meters during the nine-month trial period, provided, however, that not more than $2.75 per month per meter shall be remitted to the company.

At the end of the nine-month trial period the total amount received by the company shall be calculated and divided by the number of meters which the city of Bellefontaine has leased. The amount of rental per meter thus determined shall be credited upon the purchase price of such meters, to wit $51.25 each, and the city may pay the balance, less five per cent discount for cash, within thirty days, in which event the meters shall belong fully and completely to the city, and the company will execute a bill of sale therefor.

The city shall have the option of extending this lease on the same terms until the total rental receipts received by the company shall have equalled the purchase price of $51.25 per meter for the number of meters installed, at which time The Buckeye Incubator Company will execute a bill of sale covering such meters which shall belong fully and completely to the city.

The meters 'shall be complete with standard, base, one extra coin box for each meter, and the company will furnish one meter free with each twenty meters contracted for and installed, and furnish two carrying cases for coin boxes for the collector.

The company shall furnish free service for the meters for thirty days and employ therefor one trained service man who shall be an employee of the company and whose- duty it shall be to instruct a proper employee, designated by the city to service the meters, in such work; and the company shall keep a supply of parts in the city of Bellefontaine so that all meters shall be serviced promptly during the thirty-day free service period, and also will promptly make any necessary needed repairs to any of the meters after report has been made by the city that such repairs are needed.

All rentals are to be paid solely from meter receipts and the city shall not be liable for rentals from any other source.

The company shall commence the installation and delivery of the meters within twenty days from the time this contract is signed and complete the same in another ten days, unless prevented by strikes, fire, or acts beyond the control of the company.

If at any time during the term of this lease, or any renewals thereof, any taxes are levied upon the meters herein leased, which are the property of the company, such as personal property taxes, sales tax, excise or license or use tax, or taxes of any nature, such taxes will be advanced by the company and the city shall reimburse the company in full for all taxes or assessments or license fees so advanced only from the gross receipts of the meters before the net revenue is computed for the purpose of determining the amount of rental which The Buckeye Incubator Company received and which may be credited against the purchase price.

The city shall have the right to order the removal of the meters at any time during the nine-month period, upon thirty days notice to the company, the removal to be at the expense of the company.

In the event the installation of the parking meters shall be halted by an injunction granted by a court of competent jurisdiction, the city shall not be liable in damages to the company and the company shall have the full time provided for the installation of the meters after such injunction is disposed of.

The contract, marked Exhibit A, is attached to, and by reference is made a part of, the bond executed and delivered by The Buckeye Incubator Company as principal, and Standard Accident Insurance Company as surety, for the performance of the contract on the part of The Buckeye Incubator Company.

In the body of the bond it is recited that it is “signed and sealed at the city of Springfield, Ohio, this 16th day of April, 1942.”

In the bond, the contract is referred to as being “dated the 14th day of March, 1942.”

In the testating clause it is recited that the bond “has been executed this 21st day of April, 1942.”

The contract attached to the bond is, as hereinbefore stated, dated May 16, 1942, but it was executed and delivered on May 18, 1942.

In the petition, amendment and supplement to the petition, plaintiff bases his right to injunctive relief against the contract, upon the following grounds, to wit:

1. The advertisement for bids is illegal in that it asks for bids on the basis of turning over the use of the streets of the city to a private corporation, and also all the net proceeds of the operation of the parking meters during the term of the contract, in snch a way as to contravene Section 6, Article VIII, of the Constitution of Ohio.

2. The advertisement for bids is illegal and invalid in that at the time the bids were sought and received there was no city ordinance providing for the installation of meters in the city streets, the fees to be collected by the meters, or the methods of enforcement, and in that the advertisement is so indefinite as to make it impossible for fair competition under it.

3. Ordinance No. 1682 is illegal and invalid because it has more than one subject.

4. The bid of The Buckeye Incubator Company does not conform to the advertisement for bids and any award based thereon violates the laws of Ohio relating to competitive bidding for public contracts.

5. The contract is void because it is based on the advertisement for bids had and the bid was made before any legislation had been enacted authorizing the director of public service and safety to contract for parking meters.

6. The contract is void because it was not approved by the board of control.

7. The contract is void because no certificate was made by the auditor as to funds applicable to contract, as prescribed by paragraph (d) of Section 5625-33, General Code.

8. The contract is a gift to The Buckeye Incubator Company of the right 'to place and operate parking meters on the streets of the city and is for that reason contrary to the Constitution and laws of Ohio.

9. The contract is illegal and invalid for the reason it was not prepared or approved by the city solicitor before it was signed.

10. The contract is void and invalid because it does does not conform to the requirement of the advertisement for bids, that: "The bidders shall state for what period, of time, if any, they will service the meters in operation and shall further specify within what period of time said meters shall be serviced or repaired after report has been made of such need by said city.”

11. The contract is void and invalid for the reason it was signed for the purpose of forestalling the injunction against its execution which the city know was then being sought by plaintiff'.

12. The contract is void and invalid in that it contains the following paragraph which was not authorized by the advertisement for bids:

"If at any time during the term of this lease, or any renewals thereof, any taxes are levied upon the meters herein leased, which are the property of the company, such as personal property taxes, sales tax, excise or license or use tax, or taxes of any nature, such taxes will be advanced by the company and the city shall reimburse the company in full for all taxes or assessments or license fees so advanced only from the gross receipts of the meters before the net revenue is computed for the purpose of determining the amount of rental which The Buckeye Incubator Company receives and which may be credited against the purchase price.”

In his brief filed herein, the plaintiff claims two additional grounds for relief, not based on any pleaded facts. These grounds are as follows:

A. That the bid upon which the contract purports to be based, is the bid of The Buckeye Parking Meter Company and not the bid of The Buckeye Incubator Company.

B. That the performance bond purports to secure the performance of a contract dated March 14, 1942, and consequently does not secure the performance of the contract in issue which is dated May 16, 1942, and was executed and delivered on May 18, 1942.

The plaintiff’s contentions will be considered in the order hereinabove mentioned.

1. By' the provisions of Section 3 of Article XVIII of the Constitution of Ohio, conferring on municipalities all powers of local self-government, general power is conferred 'on municipalities to acquire property by lease, with the privilege of purchase, for any municipal purpose authorized by law, and to hold, manage and control it and make any and all rules and regulations by.ordinance or resolution that may be required to carry out fully all the provisions of any lease by which it may acquire property; and by the provisions of Section 3615, General Code, such power is specifically conferred; and under the provisions of Section 3616, General Code, the council of a municipality may provide by ordinance or resolution for the exercise of such power.

Ordinance No. 1674 authorizing and directing the director of public service and safety of the city to advertise for bids for parking meters, and the advertisement for bids, constitute an exercise of this power by the city.

There is no term or condition stated in the advertisement for bids, which in any way contemplates the turning over of the rise of the streets of the city to a private corporation; and when the advertisement is considered as a whole it is clear that it does not contemplate that the successful bidder shall receive as rental, all the receipts from the meters during the nine^ month trial period or until such meters are fully paid for, but only- contemplates that such rental for the meters as the successful bidder quotes and receives during the nine-month trial period or until the meters are fully paid for, shall be paid to the successful bidder out of the receipts from the meters after the cost of collecting deposits in the meters is deducted.

Both Ordinance No. 1674 and the advertisement for bids merely contemplate the receipt of bids for the acquiring by the city, of parking meters upon a lease, with privilege of purchase.

Section 6, Article VIII of the Constitution reads in part as follows:

“No laws shall be passed authorizing any county, city, town or township, by vote of its citizens, or otherwise, to become a stockholder in any joint stock company, corporation, or association whatever; or to raise money for, or to loan its credit to, or in aid of, any such company, corporation, or association. * * *”

In the case of Wyscaver v. Atkinson, 37 Ohio St., 80, it is held that the foregoing constitutional provision inhibits the combination, in any form, of the public funds or credit of any county, city, town or township, with the capital of any other person or persons, corporated or unincorporated, for the purpose of promoting any private enterprise whatsoever.

A lease, with the privilege of purchase, of the character contemplated by the. ordinance and advertisement for bids, does not come within this constitutional inhibition, as during the period of the lease the property covered by it remains the sole property of the lessor, and when and if the privilege to purchase is exercised, the property becomes the sole property of the lessee; and there does not exist at any time the combination, in any form, of the public funds or credit of the lessee municipality with the lessor corporation.

For the reasons mentioned, the first ground for injunctive relief is without merit.

2. Municipalities are authorized by law to regulate traffic, and the acquirement of parking meters is incidental to the exercise of such authority; and being incidental, constitutes a municipal purpose authorized by law, within the meaning of Section 3615, General Code, for which municipalities are authorized to acquire property by lease, with privilege of purchase.

The authority conferred is general and its exercise by way of authorizing advertisements for bids, and receiving bids, is not in any way dependent upon the existence of an ordinance providing for the installation of parking meters in the city streets, or the fees to be collected by the meters, or the method of enforcement.

The enactment of such an ordinance might reasonably be wholly dependent upon the nature of the bids received upon such advertisement.

As appears from the statement of facts, the present stage of development of parking meters is such that it is impossible to draw structural specifications upon which competitive bidding may be based, as specifications particularly and exactly describing one meter would necessarily exclude others, thus precluding competitive bidding.

The law does not require the performance of the impossible, so that where the property which a municipality desires to acquire is, as in this case, of such character that structural specifications cannot be drawn so as to permit competitive bidding based thereon, the omission of the structural specifications from the advertisement for bids does not render the proposal to receive bids indefinite or invalid by reason of not providing such basis for competitive bidding.

While structural specifications as a basis for competitive bidding are not incorporated in the proposal to receive bids, the terms of the proposal are definite and are of such character as to permit fair competition among the bidders.

This being the case, the second ground for injunctive relief is without merit.

3. As appears from the statement of facts, all of the provisions of Ordinance No. 1682 are germane to the subject of the parking of vehicles in the city of Bellefontaine, and consequently the ordinance does not violate the provisions of Section 4226, General Code, requiring ordinances to be limited to one subject. Priest v. City of Wapakoneta, 24 Ohio Law Abs., 214; appeal dismissed, 132 Ohio St., 527, 9 N. E. (2d), 292.

4. The bid of The Buckeye Incubator Company, except as to the alternative .set forth in paragraph five thereof, conforms in all respects to the advertisment for bids. This alternative is based on a misconception of the terms of the advertisement, which are considered in our discussion of the first ground for injunctive relief. This alternative was not accepted by the city and is not incorporated in the contract so that its inclusion in the bid in no way affects the validity of the bid or the contract based thereon.

5. This ground for injunctive relief is based on the provisions of Section 4328, General Code, relating to the letting of contracts by the director of public service of a municipality, and reading as follows:

“* * * When an expenditure within the department, other than the compensation of persons employed therein, exceeds five hundred dollars, such expenditure shall first be authorized and directed by ordinance of council. When so authorized and directed, the director of public service shall make a written contract with the lowest and best bidder after advertisement for not less than two nor more than four consecutive weeks in a newspaper of general circulation within the city.”

The expenditure contemplated by the. contract by way of rentals and/or of purchase (if the privilege of purchase is exercised) exceeds the sum of $500. The fact that the contract comprehends an escape clause ■whereby the city has the right to order the removal of the parking meters at any time, upon thirty days notice, during the nine-month trial period, at the expense of the company, and might, by doing so promptly after installation of the parking meters, limit the actual expenditure under the contract to less than $500, does not change the amount of the expenditure contemplated by the contract as being in excess of $5P0, and until the city exercises its right under such escape clause, the expenditure contemplated by the contract is in excess of $500.

The funds out of which such expenditure is to be made, although not raised by taxation, are public funds.

From the terms and context of the statutory provision last mentioned it is clear that it is the legislative intent that such provisions should operate as a limitation on the expenditure of public funds whether such funds are derived from taxation, or otherwise. .

The contemplated expenditure being in excess of $500, and the funds from which it is to be expended being public funds, the contract comes within the purview of the statutory provision mentioned.

Ordinance No. 1674 did not authorize or direct the director of public service and safety of the city to enter into any contract for acquiring parking meters, and iliere was no ordinance or statute in existence at the lime of the advertisement for and the receipt of bids, authorizing or directing the director to enter into such contract. Consequently any authority the director had to enter into the contract in question, is conferred by Ordinance No. 1682 which was not adopted and did not become effective until after advertisement for bids had and bids received, as hereinbefore mentioned.

Section 5 of the ordinance mentioned does confer pow7er and authority upon and directs the director to enter into a contract for 200 parking meters, more or less, after due advertisement had according to law, after approval by the board of control of the city of Belief ontaine, with the lowest and best bidder furnishing, installing and leasing to the city of Bellefontaine, 200 parking meters, more or less, upon terms identical with those set forth in the advertisement for bids, the bid of The Buckeye Incubator Company and the contract entered into between the city and The Buckeye Incubator Company.

The contract was made after this ordinance, authorizing and directing the director to make the expenditure contemplated thereby upon the terms mentioned therein, became effective, so that the making of such expenditure in the manner prescribed in the contract conforms to the requirement of the first clause of such statutory provision.

The contract was also made with the lowest and best bidder, after advertisement, as prescribed in the second clause' of such statutory provision, unless the fact that such advertisement was had pursuant to Ordinance No. 1674, prior to the effective date of Ordinance No. 1682, constitutes a non-compliance with such statutory provision.

It will be noted that under the second clause of this statutory provision the power of the director to make a written contract after authorization and direction, is limited only by the condition that the contract shall be made with the lowest and best bidder, after advertisement as therein provided, and there is no requirement that such advertisement shall be had after such authorization and direction.

The purpose of this provision is to require competitive bidding upon contracts coming within its purview.

Under the provisions of Section 3, Article XVIII of the Constitution, and Sections 3615 and 3616, G-eneral Code, full power and discretion were vested in the city to provide by ordinance for the receipt of bids of the character in question, either prior to, concurrent with, or subsequent to authorizing by ordinance the making of the contract.

The terms of the advertisement published by the director, pursuant to ordinance authorizing the director to advertise for bids, were such as to provide for competitive- bidding in conformity with the purpose of the second clause of the statutory provision mentioned, and the making of the contract authorized by the ordinance subsequently adopted, based on this advertisement and on the receipt of bids pursuant thereto, conforms in all respects with the second clause of such statutory provision.

The making of the contract in the manner it was made also conforms to the provisions of the ordinance authorizing the making thereof, with reference to competitive bidding, as in this respect the provisions of the ordinance are the same in legal effect as the requirements of the second clause of the statutory provision mentioned.

The contract as made, therefore, conforms to all the requirements of the statutory provision as well as to all the requirements relating to the same subject matter of the ordinance authorizing the same, and the fifth ^ground for injunctive relief is without merit.

6. As shown by the statement of facts, the contract was approved by the board of control of the city before it was executed, although minutes of such approval were not entered upon the record of the board.

The provisions of the statute as to the recording of actions of the board are directory and not mandatory, so that such approval is effective although not entered upon the records of the board. Such entry may be made at any time to conform with such directory requirement. '

7. The provisions of Section 5625-33 (d), General Code, have application only to disbursements made by municipalities, of funds arising from a levy on the general tax list. Comstock v. Incorporated Village of Nelsonville, 61 Ohio St., 288, 294, 56 N. E., 15; Holland v. Grafton, 24 Ohio Law Abs., 642, 644.

As the funds applicable to the payments required to-be made by the contract do not arise from a levy on the general tax list, the provisions of Section 5625-33 (d) are not applicable thereto, and no certificate, of the auditor was essential to the validity of the contract.

8. The discussion of ground one for injunctive relief is applicable to this ground.

For the reasons mentioned in such discussion, the contract does not constitute a gift to The Buckeye Incubator'"Company, of the right to place and operate parking meters on the streets of the city, and is not contrary to the Constitution and laws of Ohio.

9. While Section 4305, G-eneral Code, provides that the solicitor shall prepare all contracts, bonds and other instruments in writing in which the city is concerned,, such provisions are merely directory.

As shown by the statement of facts, the city solicitor partially prepared arid fully approved the contract .in question, which constitutes compliance with the requirement of this section. The contract was therefore* valid notwithstanding it was not fully prepared by the city solicitor.

10. The contract fully complies with and conforms, to the requirement of the advertisement for bids that the bidders shall state for what period of time, if any,, they will service the meters in operation and shall further specify within what period of time such meters will be serviced or repaired after report has been made-of such need by the city.

11. Until the action for injunction was filed and temporary injunction allowed, and service had on the city, the city had the legal right to proceed with the execution of the contract, so this ground is without merit.

12. Thé provision of the contract which is the subject of ground twelve for injunctive relief merely provides that in the event certain taxes are levied- upon the parking meters during the term of the lease, which the lessor company is required to pay, the amount so paid by it shall be considered as part of the purchase price o.f the meters, in addition to the price quoted in case the city exercises its privilege of purchase.

It is in strict conformity with the advertisement for bids and is a valid condition of the bid and contract.

Plaintiff’s right to relief is limited to the allegations of his petition and amendment and supplement to the petition, but we will nevertheless consider the two additional grounds for relief argued in plaintiff’s brief, not based on any pleading of facts.

A. The bid discloses that the Buckeye Parking Meter Company is a division of and owned by The Buckeye Incubator Company. The legal effect of such disclosure is to constitute The Buckeye Incubator Company the bidder.

B. While the performance bond in terms purports to secure the performance of the contract dated March 14, 1942, the contract dated May 16, 1942, which was executed and delivered May 18, 1942, as shown by the statement of facts, is attached to the bond and, by reference in the bond, made a part of it, which has the legal effect of identifying the contract dated May 16, 1942, as being secured by the bond.

For the reasons mentioned, none of the grounds assigned by plaintiff for injunctive relief have any basis in law or equity. Consequently the court finds on the issues joined, in favor of the defendants, and dismisses plaintiff’s petition at his costs and remands the cause for execution.

Decree for appellants.

Jackson and Carpenter, JJ., concur.

Carpenter, J., of the Sixth Appellate District, sitting' by designation in place of Middleton, J., of the Third Appellate District.