author: CALDWELL, J.

text:
    BENEFICIAL ASSOCIATIONS
    [Cuyahoga (8th) Circuit Court,
    December 15, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Eva K. Dauber v. Elizabeth Dauber et al.
    1. Issuing Certificate Naming Beneficiary of Class not Mentioned in Constitution, Valid.
    When the constitution of a fraternal order states that the object of the- endowment fund of the order is for the better and sufficient support of the widows and orphans of its members, but the laws of the state under which it is organized permit 'the > payment of benefits to the mother of a deceased member, as well as to the widow and orphans, the fact that the order has issued to a member a certificate in which his mother is made beneficiary, after he had surrendered one in which his wife was named as beneficiary, will be construed as an exercise on the part of the order of the power granted by the state and as a waiver of the constitutional provision, and in case of the member’s death the mother will be entitled to the insurance.
    2. Member May Change Beneficiary, no Vested Interest Reserved.
    The naming of one as a beneficiary gives him no vested interest in the insurance fund of a fraternal order, as the right is reserved to the member to change his beneficiary at any time.
    Error.

      Kerruish <& Kerruish, for plaintiff in error.

      Thompson, Solders & Tilden, for defendants in error.
   CALDWELL, J.

The plaintiff, Elizabeth Dauber, brought this action in the court of common pleas of this county against the Independent Order of Foresters for the sum of $1,000, the amount of a certificate of insurance issued upon the life of George Dauber, her son. The certificate she sets up was issued in 1899, and in it she was named as the beneficiary. The defendant brought the money into court and interpleaded Eva K. Dauber, the plaintiff in error, with Eliza Dauber, the plaintiff below, whereupon Eva K. Dauber came in to the case and claimed that when George Dauber first became a member of the beneficial order, he made her the beneficiary in his certificate and she claimed that by reason of that fact and by reason of the fact that the constitution of the order made the fund payable to her, and by reason of other facts set up in her answer, she is entitled to the money in question.

The administrator of the estate of George Dauber, Willis White, claims that by reason of a change in the constitution of the order, made in January, 1890, after the certificate on which the action was commenced, was obtained, he is entitled to receive the funds.

Elizabeth Dauber obtained a judgment for this fund in the court below, and Eva K. Dauber prosecuted error in this court to reverse that judgment.

It appears as a fact in this case, that the first certificate that George Dauber obtained when he became a member of the order, was obtained about 1894, and that Eva K. Dauber was named as the beneficiary in that certificate, thereafter a new certificate was obtained, in which Eva and the mother Elizabeth were each named as beneficiaries, each to receive one-half, and soon after that certificate was obtained in May, 1899, it was surrendered and a new one taken in which the mother Elizabeth Dauber is named as the beneficiary.

The judgment of the court below was not only against Eva K. Dauber, but also against Willis E. White, administrator of the estate.

The administrator has filed no petition nor cross-petition in this court, and he abides by the judgment rendered in the common pleas court, so that the question of whether the money should be paid to him as administrator, is not raised in this hearing, unless it is raised in the petition of the plaintiffs in error. It appears from an examination of the petition, that that question is not raised, and hence is not before the court.

Article 2 of the constitution of the order states that “the object of this endowment fund shall be for the creation and maintaining of a fund for the better and sufficient support of the widows and orphans in the case of the death of a brother belonging to a court existing in the city of Cleveland.”

The first claim made by the plaintiff in error is, that the constitution of the order limits the endowment fund to the support of widows and orphans and hence can not be made payable to the mother of the deceased, and that the certificate that was issued, making the mother of the deceased the beneficiary, is for that reason of no effect, and that nothing being accomplished by it and nothing in favor of the mother being accomplished by the one in which the wife and mother were made jointly beneficiaries, the original certificate, making the plaintiff in error the beneficiary, is in full force and for this reason she is' entitled to the fund in question.

Section 3631 E. S. (Sec. 9457 G. C.), and especially subdivision 11 thereunder, point out who may be beneficiaries under a certificate of this character, and it is broad enough to include the mother; and the order being organized under this statute as defining its charter powers, had authority to make this certificate. in favor of the mother.

If the constitution is to be read literally, as it is printed, instead of simply declaring a general purpose of the organization and made to read as though this particular purpose of benefit-ting widows and orphans, is intended to exclude all others who might be benefited under the state, then under this provision it might be said that the certificate would not be valid. But we think that the purpose of the provision in the constitution was simply to name a general purpose of the organization without undertaking to give it any definite limitation to the terms used, and, by issuing the certificate, making it payable to the mother, the order construed its meaning of this article. Then, even if the provision of the constitution is to be taken as literal and definite, it is a provision that could be waived by the order, and, notwithstanding that only widows and orphans are named, the order might make the certificate payable to any one designated in the statute; and, designating one within the statute but not within sueh literal meaning of the constitution, would be a waiver of the constitutional provision, and neither the plaintiff in error nor the order could object to the payment of the fund to the mother after such waiver had taken place.

The next question raised by the plaintiff in error as to why the judgment should be reversed, is, that she had under the firsr certificate issued wherein she was named a beneficiary, such a vested interest in the fund that no change could thereafter be made without her consent. We think the authorities generally show, not only in this state but in other states, that the insurance is founded upon a contract wherein the assured reserves to himself the right at any time to change the beneficiary, and for that reason the beneficiary named in a certificate, until the death of the brother, takes nothing but a contingent interest in the fund, liable to be defeated at any time by the assured. This matter has recently undergone extensive discussion in Early v. Early, 13-23 O. C. C. 618 (3 N. S. 71), wherein Judge Cook delivers the majority opinion of the court, and Judge Laubie gives a dissenting opinion.

The opinion of this court approves the opinion of the majority in that case. The matter is so clearly discussed in those opinions that we could add nothing to them except to multiply the cases that bear upon the questions involved, which would be of no benefit to this case.

It is the judgment of the court that there is no error in the record before us, and the judgment of the court of common pleas is affirmed.

Hale and Marvin, JJ., concur.


source: Caselaw Access Project

author: K AEE, 3.

license: Public Domain

text:
    COURTS
    [Cuyahoga (8th) Circuit Court,
    November 10, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Floy Mills v. Robert Mills.
    Effect of Change of Venue on Jurisdiction as to Existing Orders.
    By the transfer of a case froih the court of common pleas of one county to the court of common pleas of another county, the court in the county to which the case is transferred acquires exclusive jurisdiction of all matters pertaining to the case, including the enforcement of the orders already made in the case, as well as the granting of new orders and final judgment.

      Walter C. Ong, for plaintiff in error.

      L. Z. Tawney, for defendant in error.
   K AEE, 3.

An action was pending in the court of common pleas of this county by plaintiff against defendant for a divorce. Alimony pendente lite had been allowed and the defendant ordered to pay a certain amount to the plaintiff during the pendency of the action. After this order was made, the case was transferred by order of the court, under statute, to Medina county for trial and determination. Up to the time that the order was made transferring the ease to Medina county, all installments of alimony falling due had been paid; there was no default on the part of the defendant in payment of alimony at the time of the transfer. After the transfer, proceedings in contempt against the defendant were commenced in the court of common pleas of this county. The question is, whether actions for contempt can be maintained in this county after the transfer, for a violation of an order on the part of the defendant in the payment of alimony.

Very little light or aid can be gathered from any decisions that we have been able to find, or which have been cited to us. But, after consideration such as we have been able to give in the case, we hold that, after the transfer by the common pleas of this county to the common pleas of Medina county, exclusive jurisdiction of all matters pertaining to the case, as well the enforcement of the orders made as the granting of new orders and judgment, was transferred to the common pleas of Medina county. That court had jurisdiction to modify, abrogate, or enforce the order for alimony pendente lite then existing. Disobedience of the order which existed at the time of the transfer, after the transfer was made, was a contempt of the court having the jurisdiction to enforce the order, that order virtually becomes the order of the court to which the case is transferred and that court has full jurisdiction over existing orders and over the case, to make further orders.

This, of course, does not deal with the phase of the case as if there had been a default to obey the order of the common pleas of Cuyahoga county prior to the transfer. Nor do we undertake to controvert the proposition argued by counsel that proceedings in contempt are quasi criminal and, to an extent at least, independent of the case in which the order was made for the disobedience of which the party is in contempt.

This was the holding of the court of common pleas, and the result is the affirmance of that judgment.

Caldwell and Marvin, JJ., concur.


author: HALE, J.

text:
    ELEVATORS
    [Cuyahoga (8th) Circuit,
    February, 1903.]
    Hale, Marvin and Winch, JJ.
    Cobb-Bradley Realty Co. v. Fannie Hare.
    Liability of Owner of Passenger Elevators not Increased by .Employment of Minor as Operator.
    The liability of the owners of an office building to tenants in the use of its passenger elevators is that of a carrier of passengers, and such liability is not altered by the employment of a minor as an operator; hence in an action by a tenant for personal injuries resulting from the negligent operation of an elevator, an allegation that the laws of the state make it unlawful to employ a minor, such as the one operating the elevator at the time of the accident, should, on motion, be stricken from the petition.
    Error.

      O. C. Pinney, for plaintiff in error.

      Olds & Willet, for defendant in error.
   HALE, J.

The plaintiff in error was, at the time of the transaction complained of, the owner of a building known as “The Birmingham” located on Eufelid avenue in the city of Cleveland, and maintained and operated therein for the accommodation of its tenants an electric elevator.

On April 22, 1899, the defendant in error was employed by a tenant in that building and entered the elevator for the purpose of riding from the sixth to the first floor. She alleges in her petition that she was injured while thus in the elevator, by the carelessness and negligence of the employees of the plaintiff in error in operating said elevator.

She alleges that said elevator was negligently run by defendant’s employe to the basement of the building and by the first floor and entrance to said building, where plaintiff desired to leave said elevator, so that the elevator struck the bottom of the shaft with such force as to severely injure the plaintiff’s spine and back, and, in consequence of such injury, plaintiff was confined to her bed for fourteen weeks and still is unable to sit up for over two or three hours at a time and is permanently injured and will suffer from the injuries to her back and the pelvic organs the remainder of her life.

She then describes more specifically the injuries of which she complains, and adds:

‘ ‘ The plaintiff says that the defendant was further guilty of negligence in the premises in that it employed and permitted the operator of said elevator to operate the same, knowing that many persons would daily ride up and down in said elevator many times, said block or building containing many tenants of defendant many of whom employed a large number of persons at dressmaking and other pursuits; and knowing that said operator, John Neely, a boy about fifteen years of age, was inexperienced and incompetent to operate an electric elevator such as said elevator was, or by the exercise of ordinary care could have known him to be inexperienced and incompetent, although plaintiff did not know it.”

She further alleges that the plaintiff in error was negligent in failing to keep the elevator in proper repair, and to provide the same with automatic stops or other devices in general use on elevators of that kind in Cleveland and elsewhere, such as would prevent said elevator running down below the first floor of said building.

The petition then.alleges:

“Plaintiff says that the defendant was further guilty of negligence in that it employed and permitted said operator, a boy of fifteen years of age, and less than twenty-one years of age, to operate said electric elevator in the state of Ohio, said defendant being in said state, contrary to the laws of Ohio and contrary to Sec. 2575-91, R. S. which is as follows: ‘No person under twenty-one years of age shall be employed in running or operating any electric, steam or hydraulic passenger or freight elevators, and it shall be unlawful for any firm, company or person in the state of Ohio owning, operating, or having in charge any such passenger or freight elevator or elevators to employ a person under twenty-one years of age to run or operate any such elevator.’ ”

The answer denies substantially all the allegations of the petition and for an affirmative defense alleges that the building and the elevator at the time of this transaction was under the control and management of an independent contractor who alone was responsible for any negligence growing out of this transaction. Upon this proposition, however, under the charge of the court, the jury properly found in favor of the defendant in error.

On the trial, testimony was given by the defendant in error tending to show the claim made by her and by the plaintiff in error tending to rebut any such claim.

Before answering the petition, the plaintiff in error filed a motion asking that the various allegations of the petition be stricken from the petition, and, among others, the clause pleading the statute above quoted, which motion was overruled and an exception noted.

At the close of the evidence, upon the effect of this statute the court charged the jury as follows:

“ It is claimed that the defendant company was negligent in that it employed a boy of the age of fifteen years and less than twenty-one years of age, to operate the electric elevator in contravention of the laws of the state. ’ ’

He then read to the jury the statute above quoted and adds:

‘ ‘ The violation of this statute by the defendant, if you shall find that it was violated, is not in and of itself such negligence as will render the defendant company liable. It is simply the expression of the state, through its legislative body, of its policy with respect to the operation of elevators, and is evidence to be considered by you in connection with all the other evidence in the case. The mere fact of employing a boy under the age mentioned in the statute to which I have just referred, would not constitute negligence in and of itself. ’ ’

To this charge an exception was noted.

In both the refusal to strike out from the petition, the statute pleaded and in this charge given to the jury, there was error.

The duty of the plaintiff in error to the defendant in error in the operation of the elevator was the same as that of a common carrier to a passenger — the highest degree of care must be the measure of that.duty. A failure in its performance would be negligence. The fact that the employment of a minor was prohibited by statute neither added, to, nor detracted from such duty. If the duty was fully performed, there was no liability resting upon the plaintiff in error, whether the operation of the elevator was by a minor or an adult. Such liability arose only from the non-performance of such duty. We conceive it competent, however, to show who was operatiog the elevator at the time of the accident, his age, competency and the like, but the existence of the statute should have no weight in determining the liability of the plaintiff in error for negligence in the operation of the elevator.

We are dealing with the relation of the common carrier to a passenger and the responsibility of the plaintiff in error therein must be .determined by the manner in which it performed its duty growing out of that relation.

The case of Jacobs v. Fuller & Hutsinpiller Co., 67 Ohio St. 70 [65 N. E. 617] sustains we think, this proposition. That case, it is true, involved different facts. The relation of master and servant was therein considered, but certainly no stronger reasons existed for the conclusion of the consideration of the statute in that case than those existing for the exclusion of the statute in this case.

Again, on review of the evidence contained in the bill of exceptions, we are of the opinion that the damages awarded to the defendant in error were grossly excessive and for that reason the motion for a new trial should have been granted and, in not so ruling, there was error.

The evidence shows clearly that the disabilities under which the defendant in error now claims to be suffering, are not wholly due to injuries which she received in that transaction.

We find no other prejudicial error apparent upon this record.

The judgment of the court of common pleas is reversed and the cause remanded for a new trial.

Marvin and Winch, JJ., concur.


text:
    CONTRACTS — VENDOR AND PURCHASER
    [Cuyahoga (8th) Circuit Court,
    December 22, 1902.]
    Caldwell, Hale and Marvin, JJ.

       Joseph Kundtz v. Van Deboe, Haeger & Co. et al.
    Two Contracts for Sale of One Parcel of Property are Regarded as One.
    When a real estate company sells lots upon an installment plan and gives the purchaser a land contract signed by a trustee in whose name the title appears, in which the trustee agrees to convey upon the receipt of the final payment; and also gives the purchaser another contract signed by the company in which it agrees to convey the property to the beneficiary of the purchaser in case of the death of the purchaser before final payment has been made, both of the contracts are to be construed together as one contract, and the real estate company, by accepting payments after they were past due, waived any forfeiture provided for in the contract signed by the trustee.

      G. H. Schaihley, for plaintiff.

      Smith & Taft, for defendants.

       Affirmed no opinion, Van De Boe, Haeger & Co. v. Kundtz, 70 Ohio St. 485.

   CALDWELL, J.

The plaintiff, Joseph Kundtz, brought this action for specific performance. The petition sets out that Van Deboe, Haeger & Co., was the owner of a lot in an allotment; that James W. Evenden is trustee, held the title to the property, which lay in the hamlet of Rockport, county of Cuyahoga and state of Ohio, and was designated as lot 112 on a certain plat of lots called Lenox Park; that they sold said lot to Agnes Kundtz, trustee, on the installment plan, payable weekly, until the full amount was paid, and that, when the amount was paid, she was to have a deed for the same. Agnes Kundtz was buying said lot as trustee for the plaintiff, Joseph Kundtz, and he claims in his petition, that there was an agreement on the part of Van Deboe, Haeger & Co. that if she died before the payments were made in full, a deed would be given to the plaintiff for the lot without any further payment, and sets up that Agnes Kundtz died and that the plaintiff made proper proof of her death to the defendant and demanded a conveyance of the property and that the defendant refused to convey the same. The answer claims that Evenden was trustee, holding the lands not for his codefendant but for other parties, and that he had placed the lands in the hands of his co-defendants to sell and dispose of the same. And the evidence shows that in undertaking to dispose of these lands and other lots then turned over to them for sale they adopted the plan of selling the lots and giving therefor a land contract not differing in any way from the ordinary land contract which was signed by James W. Evenden, trustee, and, at the same time, Yan De-Boe, Haeger & Co., would enter into a contract with the purchaser of the lot, that, if she died before payments were made in full, the lot would be deeded to the beneficiary named by her without any further payment, although the same had not been paid for in full at the time of her death.

The plaintiff claims that these two contracts constitute one contract; that they together form part of the consideration that induced the purchase of the lot, and, being construed together as one contract, she claims that the defense set up is not good. The contract signed by Yan DeBoe, Haeger & Co. for the lot is as follows:

This agreement made February 15, 1897, by and between Yan DeBoe, Haeger So Co. of the city of Cleveland, Ohio, of the first part, and Agnes Kundtz, trustee, of Cleveland, Ohio, of the second part:

“Whereas, the parties of the first part have advertised to deliver over free from further payments, a deed of property purchased from them at Lenox Park, upon certain conditions in the case of the death of the grantee of said property, and,
“Whereas, the party of the second part, being the purchaser of the lot, No. 112, in Lenox Park, wishes to avail herself of said offer, now, therefore, it is hereby agreed that in case the party of the second part shall die while her agreement for the purchase of the above-mentioned lot is in force and before said premises are conveyed to her by deed, said party of the first part shall, under certain conditions hereinafter mentioned, having no claim for the payment of further installments on account of said premises, but shall convey the same without further consideration, at the special direction of party of second part, to Joseph Kundtz.”

It is further provided and agreed that the conditions upon which said deed shall be given her, is as follows:

“1. That said party of second part is the original purchaser, and not a transferee. 2: That the payments on said lot shall not, at any time, be more than two weeks in arrears. 3. That satisfactory proof of death of said party of second part shall be furnished. 4. That said party of second part shall not have come to her death by reason of suicide, sane or insane. 5. That the party of second part is in good health at the time of purchase.
“No alteration in the terms of this agreement will be valid unless signed by Van DeBoe, Haeger & Co. and Agnes Kundtz, trustee.”

We are satisfied that these two contracts were held out as an inducement to the party purchasing the lot; that they both entered as a consideration for the payment of the money paid upon the lot. The fact that the lot was owned by tl\e trustee, James W. Evenden, can make no difference, for the evidence shows that he had turned over to his codefendant the entire marketing of the lots, which they proceeded to do upon the plan set out, and he has, in a sense that will bind him, made himself a party to the method adopted by his agents. This makes the two contracts but one contract in fact; they become parts of one and the same contract. Hence, the defense set up herein, which is, that payments were not made promptly as required by that part of the contract signed by Van DeBoe, Haeger & Co., will vitiate the second part of the contract, although they were received upon the first contract, clearly creating a waiver on behalf of the trustee who made the land-contract, by reason of the money being received after becoming due; and the claim is that the same parties, Van De-Boe, Haeger & Co., held both of these contracts and they now make claim that although payments were made and received on the land contract after they were due, yet that can not be regarded as a compliance or waiver of the conditions of the second contract; in other words, Van DeBoe, Haeger & Co. could take the money after due and apply it upon the land contract and yet, by so taking it, they did not make a waiver of the insurance contract. The only way to make this seem plausible to the court is, as was contended by defendant, that these contracts are entirely separate and distinct, and that whatever was done under one, either by way of payments or waiver, could not, in any manner, affect the other. We can not subscribe to that doctrine.

The real facts of the case are that while the land contract was signed by James W. Evenden, trustee, yet it is with the other defendant, and really their contract, until they have made the proper collections and turned them over to the trustee in lieu of the land, for .the whole thing looks to their securing not only the contract, but also the deed, when the contract is paid up in full. So Evenden having signed the contract, amounts to nothing more than binding him to give the deed. The whole transaction was really in the hands of the other defendant and hence while, in form, the contracts appear to be made by different parties, yet, in substance and in fact, so far as the interest of the parties is concerned, they are both made by the same persons. Upon the death of the purchaser, Van DeBoe, Haeger & Co. certainly did not expect to pay up the balance of the purchase-price of the lot; if they did, the whole transaction would be merely a gamble.

We think the plaintiff has shown his right to have his deed given to him without further consideration, ahd the prayer of his petition is granted.

Hale and Marvin, JJ., concur.


author: MARVIN, J.

text:
    BILLS AND NOTES — PRINCIPAL AND AGENT
    [Cuyahoga (8th) Circuit Court,
    November 5, 1902.]
    Caldwell, Hale and Marvin, JJ.
    H. H. Wylie v. Kingsley Paper Co.
    Qualification Statement Following Signature of Note, Held Personal Obligation of Signer.
    When one signs a promissory note and after his signature adds the statement that he is signing it for another, he nevertheless becomes personally liable upon it.

      O. J. Campbell, for plaintiff in error.

      Carpenter, Young <& Stocker, for defendant in error.
   MARVIN, J.

The Kingsley Paper Co. sued H. H. Wylie before a justice of the peace, upon two promissory notes. One of said notes reads as follows:

$50.00 November 26, 1898.
“Two months after date I promise to pay to the German-American Ptg. Co. or order fifty dollars, value received, at their office.
“H. H. Wylie,
for the Critic Pub. and Prtg. Co.
“No. — . Due Jan. 26.”

The other note reads as follows:

“$50.00. November 18, 1898.
‘ ‘ Sixty days after date I, we or either of us promise to pay to the order of the German-American Prtg. Co. fifty dollars at their office. Value received.
“H. H, Wylie,
for the Critic Pub. & Prtg. Co.
“No.-. Due Jan. 17.”

The only defense made to these notes was that upon their face they show that Wylie was not the maker of the notes and could not be held personally liable thereon; that each of the notes was a note of the Critic Publishing & Printing Co. • The court held otherwise, and judgment was given the plaintiff. This judgment was affirmed by the court of common pleas. It is sought here to reverse the judgment. We hold that the judgment was right, and must be affirmed.

The cases holding that commercial paper signed by one as agent, and as agent of particular persons, is the personal obligation of him who signed the paper are decidedly in point.

It is urged that it can not be claimed that the words following the signature of Wylie on these notes are simply a description of the person; but we think that the notes in this case are clearly written promises on the part of Wylie for the payment of the money. It is true he says that he promises to pay for this publishing and printing company, but it is clearly he who promises to paj»-. Suppose these notes read “I, H. H. Wylie, promise to pay for the Critic Publishing & Ptg. Com.” Could there be any doubt that it would be the promise of Wylie, which he is bound to make good? We think not. And we think the language used in the notes sued upon is equally clear that Wylie-promised to pay for the company.

Caldwell and Hale, JJ., concur.


text:
    TRIAL
    [Cuyahoga (8th) Circuit Court,
    November 17, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Laura J. White, Admrx. v. Cleveland Foundry Co.
    Dismissal of Pending Action on Motion of Plaintiff is not Failure in Action.
    When an action which has been commenced in due time, is dismissed by the plaintiff after the time limited for the commencement of such action has expired, even though such dismissal was made to avoid being forced into a trial for which the plaintiff was unprepared, a new action for the same cause, thereafter commenced, is barred, though commenced within one year after the dismissal of the former action. Such dismissal is not a failure in the action within the purview of Sec. 4991 R. S. (Sec. 11233 G. C.)

      Kerruish, Chapmcm & Kerruish, for plaintiff in error.

      Gilbert & Hill's, for defendant in error.
   HALE, J.

The trial court sustained the demurrer to an amended petition filed by the plaintiff, and entered judgment for the defendant. The cause of action stated in the amended petition was barred by the statute of limitations, unless the case made falls within the provision of Sec. 4991 R. S. (Sec. 11233 G-. C.) :

“If, in an action commenced, or attempted to be commenced, in due time a judgment for the plaintiff be reversed, or if the plaintiff fail otherwise than upon the merits, and the time limited for the commencement of such action has, at the date of such reversal or failure, expired, the plaintiff, or, if he die and the cause of action survive, his representatives, may commence a new action within one year after such date, and this provision shall apply to any claim asserted in any pleading by a defendant. And if the defendant is a corporation, whether foreign or created under the laws of this state, and whether the charter thereof prescribes the manner and place, or either, of service of process thereon, and such corporation passes into the hands of a receiver before the'expiration of said year, then service to be made within said year following such original services or attempt to commence the action may be made upon such receiver or his cashier, treasurer, secretary, clerk or managing agent, or if none of the' aforesaid officers can be found, by a copy left at the office or usual place of business of such agents or officers of such receiver with the person having charge thereof, and if such corporation is a railway company, summons may be served upon any regular ticket or freight agent of said receiver, and if there is no such agent, then upon any conductor of such receiver, in any county in the state in which said railroad is located, and the summons shall be returned as if served upon said defendant.”

The allegations of the petition relied on to bring the case within the terms of this statute, are:

‘ ‘ And the plaintiff says that during the July term for the year of 1897, this plaintiff as such administratrix commenced her action against this defendant in this court, setting forth the facts above alleged in language identical with the words of this complaint, asking the same relief herein demanded. That she was joined by the defendant, and after many delays and continuances, at last on March 1, 1899, and by mischance said action came on hearing in said court in court-room No. 3, presided over by His Honor, Judge Lamson, then of this court, where a jury was assembled hurriedly, and at a time when plaintiff happened to be unprepared for trial, and could not prosecute said action —and of which fact said court became speedily aware — and that thereupon and in the midst of plaintiff’s appeals for a postponement, by her attorney, said jury was ordered to be sworn and was sworn, in said action, and that thereupon, plaintiff by her attorney informed the court that he could not proceed with said case and would not prosecute the same; and there and then without question or prosecution thereof, and for want of it, and at the court’s demand to proceed forthwith or submit to a verdict against her, plaintiff again by her attorney stated to the court her inability to proceed or to prosecute her action and thereupon insisted upon her right to have her cause dismissed for said reason, and without prejudice, which was thereupon immediately done and entered by said court. ’ ’

Under pressure the court entered a judgment of dismissal without prejudice, which the plaintiff insisted upon — the language of the petition is “and thereupon insisted” (that is, the plaintiff insisted) “upon her right to have her cause dismissed for said reason without prejudice, which was thereupon immediately done and entered by said court. ’ ’

A proper construction of this petition compels us to hold that the case was dismissed by the court without prejudice, on request of plaintiff’s attorney.

The case of Siegfried v. New York L. E. & W. Ry., 50 Ohio St. 294 [34 N. E. 331], is decisive of the question here made. The record of that case shows that the action was dismissed on motion of the plaintiff without prejudice to a future action, and judgment rendered against the plaintiff for costs. The syllabus of the case reads:

“Where an action which has been commenced in due time is dismissed by the plaintiff after the time limited for the commencement of such action has expired, a new action for the same cause, thereafter commenced, is barred, though commenced within one year after the dismissal of the former action. Such dismissal is not a failure in the action, within the purview of Sec. 4991 R. S.”

Under the facts alleged in the petition, there was no waiver on the part of the defendant of its right to insist upon the bar of the cause of action by the statute of limitations. The defendant having answered the original petition, the court might, in its discretion, have refused to grant the defendant permission to withdraw his answer and file a demurrer to the petition in order to avail himself of the bar of the statute; but whether such permission should be granted or withheld was wholly within the discretion of the court, and permission having been given to 'the defendant to withdraw his answer the case stood as if no answer had been filed, and left the defendant at liberty, either by demurrer or by answer, to avail itself of the fact that the cause of action was barred by the statute of limitations.

We find no error in the record, and the judgment of the court of common pleas is affirmed.

Caldwell and Marvin, JJ., concur.


text:
    BUILDINGS — CONTRACTS—TRIAL
    [Cuyahoga (8th) Circuit Court,
    December 24, 1902.]
    Cleveland (City) v. W. A. Wilson and Thomas Strack.
    1. Contractor Entitled to Extra Compensation for More Expensive Materials.
    When a contractor is putting in concrete according to the specifications in his contract, and complies with a request of the one for whom he is performing the work to use a larger proportion of cement in mixing the concrete, this is in addition to his original contract, and he is entitled to recover for the additional cost of such concrete.
    2. Exception to Refusal to Charge before Argument must Specify that it is as to Time of Charge.
    When a party submits requests for certain charges before the argument of a case and takes exception to the court’s refusal to give the charges as requested, but does not specify that his exception is to the refusal to charge at that time, no error results if the court in its charge after argument charges all of the propositions contained in the requests which it was proper to give.

      N. B. Baker and Judge Beaeom, for plaintiff in error.

      Solders & Tilden, for defendants in error.
   CALDWELL, J.

The defendants in error had a contract with the city of Cleveland for the construction of a certain portion of the Walworth Run Sewer. The contract included the furnishing of material and the doing of work; and, in it, was the furnishing of concrete and putting it in place as forming a part of the sewer. The parties are at variance as to the meaning of the contract, and, while the petition sets up three causes of action, the only question for consideration by the court is as to the first cause of action therein, and it is not a question to be determined from the evidence in the case as a question of fact, but is a question of law. The contract between them is in evidence, and there is a dispute as to its meaning and proper construction. The contract provides that all stone and concrete shall be hard lime-stone, sand-stones, trap, quartizite, or granite; all stone shall be, in the opinion of the chief engineer, equal to the hardest stone from the quarries of Newburgh, Ohio; and broken' stone must be that taken from massive ledge; and any stone which shows a tendency to break into flat pieces, will be rejected; the broken stone must be screened, so as to be free from all dust and fine material, and must not contain fragments larger than will pass through a 2-inch ring, or so small that they will pass through a %-inch circular hole. On page 10 of the bill of exceptions is the following provision:

“Concrete shall be composed of natural cement mortar one part; broken stone, three parts; by measure. ’ ’

Then there is a provision as to how it shall be mixed. On page 11 (quoting):

“The proportions, as above specified, are intended to produce concrete in which the mortar fills all the voids, and the proportions of mortar and broken stone will be so adjusted that when the concrete is rammed into place, free mortar will flush the surface. ’ ’

On page 19, is this provision:

“The proportions of mortar, etc., when rammed in place, shall be such that free mortar shall flush to the surface; if such result is not obtained, the relative proportions of broken stone to mortar shall be changed so as to cause said result to be obtained.”

The purpose to be reached was that when a considerable portion of the cement was put in place and allowed to harden, the whole would form a monolithic mass.

The plaintiff claims that he made and rammed in place a certain amount of cement and that he attained the result; that free mortar came to the surface, and, by so doing, he had fulfilled the standard required by the contract, and the only test that could be applied to the work to determine whether or not the contract had been fully complied with. The contract provides the manner in which the cement shall be rammed into place, the kind and size of instruments used for that purpose, and no complaint is made in this case in regard to the manner in which the cement was made or put into place or ramm&d-, but, after a small portion was made, the city required the ingredients of the cement to be changed, making it 214 stone to one of cement; and the plaintiff claims that, by so requiring, the defendants in error did work for the city over and above that required by the contract inasmuch as the new ingredients added very much to the cost, and that it is entitled to be paid the difference in the cost, as the cement was to be mixed by the contract and as it was actually mixed in doing the work. The city claims that the change was made, and was one that it was entitled to have made under the terms of the contract, and as to whether the material and work was done according to the contract, was determined by the chief engineer and director of public works and from whose decision there can be no appeal.

As to this claim, the contract does not provide that the test of whether the mortar, when rammed in place as provided in the contract, leaves free mortar on the surface, shall be left to the engineer or to the director of public works. The only test in the contract as to whether the material meets the requirements thereof, is, that it shall have free mortar flush to the surface. And this was a question to be determined by the jury. It can not be insisted in this case, that the jury were not warranted in finding under the testimony that the mortar flush to the surface would have been there if it was as first mixed and rammed. The only provision in the contract, upon this question is that, if the mortar as is provided in the contract for it to be mixed, does not, when rammed according to the contract, have free mortar flush to the surface, then the ingredients may be changed so that that result will be obtained.

If the result was obtained as the ingredients were first mixed, then to require something more to be done would be requiring something more than the contract ealls for. It would not be a change in the contract; it would be a modification in the sense in which those terms are used, but it would be requiring something to be done for which the party had not contracted, nor does the matter of notice and endorsement in writing apply to the matter of this kind under the terms of the contract, but it stands as though 500 feet of sewer was to be built and the city thereafter had required 100 feet more to be built. This would be an additional matter, not contracted for, and not contemplated by the first contract, and the party would have a right to recover it.

It is claimed on behalf of the plaintiff in error, that the trial court erred in refusing to give to the jury its requests to charge before argument. These requests were headed: “"Whereupon counsel for defendants submitted to the court requests to charge the jury before argument;” and then follow the requests, all-of which the court refused to charge except as he gave the first three, in substance, in the charge, after argument; and the counsel for the plaintiff' in error said, ‘ ‘ The requests asked to be given' before argument were all refused and the defendant excepts to the refusal of the court to grant each of the same, numbered respectively from 1 — 9. ’ ’ If these requests were good law in the case, and they were made with the request that they be charged before argument, and the court refused to charge them before argument, and an excxeption was taken to such refusal, then this ground of error would be well taken. There is no exception taken because the court did not charge at the particular time it was asked to do so, but simply an exception because the requests were refused entirely in the case.

It appears from the case of Monroeville (Vil.) v. Root, 54 Ohio St. 523 [44 N. E. 237] that to constitute error under Section 5190 of the Revised Statutes, as to charge before argument in a case, the record must affirmatively show that the court was requested to give such instructions before the argument, and that its refusal to do so was the subject of an exception. To do so means to charge that an exception was taken to a refusal to give the requests before argiment not an exception to a refusal to give them generally. In the case just referred to it was said that it did not appear that it was desired that a request should be given before the argument. In the case under consideration, the request did show it.

For aught that appears in the case under consideration, the party may have been content that the court should give the substance of its requests in his charge, after argument, as the court did do; and there is no' exception taken to the point that the court did not charge this law at the time it was requested to do so. We think this ground of error is not well founded. The-Cincinnati St. Ry. v. Jenkins, 11 Circ. Dec. 130 (20 R. 256).

We find no error in the record, and the judgment is • affirmed.

Hale and Marvin, JJ., concur.