author: COOK, J.

text:
    LIMITATION OF ACTIONS.
    [Columbiana (7th) Circuit Court,
    March Term, 1904.]
    Laubie, Cook and Burrows, JJ.
    Amanda Hoiles v. Lodge Riddle, Admr.
    When Statute or Limitations Begins to Run upon a Claim that Becomes Due at the Death op a Debtob.
    When a. debt becomes due at the death of a debtor, upon failure of next of kin to have administration taken out upon the estate, it is the duty of the creditor, in order to save the claim from the bar of the statute, to have letters issued in a reasonable time from the decedent’s death, as the statute begins to run from the time the creditor should have had the administrator appointed and not from the time he did have letters issued. What is a reasonable time depends upon the circumstances of each particular case.
    ERrob to Columbiana common pleas court.
    W. H. Spence, for plaintiff:
    When cause of action accrues. Sharkey v. McDermott, 91 Mo. 647 [4 S. W. Rep. 107; 60 Am. Rep. 270]; Yan Duyne v. Yreeland, 12 N. J. Eq. 142, 146, 147; Thomas v. Feese, 21 Ky. 206 [51 S. W. Rep. 150]; Davidson v. Davidson, 13 N. J. Eq. 370; Browne, Stat. Frauds Sec. 463; Kilbreath v. Gaylord, 34 Ohio St. 305, 308; Koltenbroek v. Cracraft, 36 Ohio St. 584, 590; Carpenter v. Denoon, 29 Ohio St. 379, 390.
    Statute of limitations. Treasurer v. Martin, 50 Ohio St. 197, 204 [33 N. E, Rep. 1112]; Wood, Limitations Sec. 117; Angelí, Limitations Chap. 7; 19 Am. & Eng. Ene. Law (2 ed.) 193, 194, 219, 220, and cases-cited; Riner v. Riner, 166 Pa. St. 617 [31 Atl. Rep. 347; 45 Am St. Rep. 693]; Little v. Reid, 75 Mo. App. 266; 2 Woerner, Administration (2--ed.) 918; Marsteller v. Marsteller, 93 Pa. St. 350; Sorrell v. Trantham, 48 Ark. 386, 390; Bullards, In re Est. 116 Cal. 355 [48 Pac. Rep. 219]
    1 Rockel, Prob. Prac. Sec. 608; Kershaw v. Snowden, 36 Ohio St. 181, 183; Gibson v. Bridge Co. 18 Ohio St. 397; Lake Shore Ry. v. Richards,. 152 Ill. 59 [38 N. E. Rep. 773; 30 L. R. A. 33]; Zuck v. McClure, 98 Pa. St. 541; 7 Am. & Eng. Enc. Law (2 ed.) 152, 153; Story v. Story, 61 S. W. Rep. 279 [22 Ky. Law 1731]; Sharkey v. McDermott, 91 Mo. 647 [4-S. W. Rep. 107; 60 Am. Rep. 270].
    Nature of action. Shahan v. Swan, 48 Ohio St. 25, 31, 32 [26 N. E. Rep. 222; 29 Am. St. Rep. 517]; Browne, Stat. Frauds See. 463; Sharkey v. McDermott, 91 Mo. 647 [4 S. W. Rep. 107; 60 Am. Rep. 270] ;. Emery v. Darling, 50 Ohio St. 160 [33 N. E. Rep. 715].
    Statute of frauds. Bishop, Contracts Secs. 1274, 1277, 1278, 1279 y Westropp v. Westropp, 7 Circ. Dec. 14 (13 R. 244) ; Hill v. Jamieson, 16 Ind. 125 [79 Am. Dec. 414]; Kent v. Kent, 62 N. Y. 560 [20 Am. Rep.. 502]; Riddle v. Bacus, 38 Iowa 81; Howar v. Snyder, 9 Ky. Law 358 -y Sword v. Keith, 31 Mich. 247; Updike v. Ten Broeck, 32 N. J. Law 105; Carr v. McCarthy, 38 N. W. Rep. 241 [70 Mich. 258]; Atchison, T. & S. F. Ry. v. English, 16 Pac. Rep. 82 [38 Kan. 110]; Woolridge v„ Stein, 42 Fed. Rep. 424; Harper v. Harper, 57 Ind. 547.
    David Fording and Craine & Snyder, for defendant in error.
   COOK, J.

The action below was to recover damages for a breach of contract. A demurrer was sustained to the petition, for the reason that the cause? of action was barred by the statute of limitations;' the petition dismissed and judgment against plaintiff below for costs. Error is now prosecuted in this court to reverse the judgment of the court below.

The petition sets forth: “That on or about January 28, 1863, said Robert Watson, the decedent, entered into a verbal contract or agreement with Samuel Klingaman, the father of plaintiff, her mother being dead at the time, by the terms of which contract, upon the consideration that he, the said Samuel Klingaman, would relinquish and surrender the person of his said child, Amanda Klingaman, plaintiff herein, and her services, society, care and control, to him, the said Robert Watson and Mary Watson, his wife, they, the said Robert Watson and Mary Watson, his wife, would receive said child into their home, keep, clothe and provide for her, have her services, society, care, custody and control, and adopt her, give her their own name and thereafter treat her as their own child.

“The said Robert Watson further agreed, upon the consideration aforesaid, that he would make said child his heir and give her all the personal property which he owned or possessed at the time of his death. He agreed that she was to have and receive the possession of said personal property at his death, if he survived his wife, Mary Watson, but if his wife, Mary Watson, survived him, then she was to receive possession of said personal property at the death of his wife, Mary Watson. Yet notwithstanding the facts hereinbefore set forth and pleaded, and in disregard and violation of the terms of the contract made by Samuel Klingaman and Robert Watson, for the benefit of said plaintiff, said Robert Watson failed and neglected to make any provision for plaintiff at the time of his death, and to give plaintiff the personal property of which he might die possessed, either at his own, or the death of his wife, but on the contrary, some time before his death, made and executed his last will and testament, by the terms of which he gave all his property, both personal and real, to his wife, Mary Watson, without any devise, bequest or gift over to plaintiff, or any part of the same.”

The petition further avers, that the said Robert Watson did not adopt the plaintiff; neither did he make her his heir at law; but the principal ground of complaint in the petition is, as herein set forth, that he failed to give her the personal property as he had agreed to do, and damages are sought to be recovered for this breach.

As appears from the petition, Robert Watson died April 26, 1885, and Mary Watson, his wife, died September 12, 1899.

The plaintiff caused letters of administration to be issued to the defendant in error, Lodge Riddle, April 6,1903, and on August 25, 1903, she commenced the action below.

The only question made is, did the court err in sustainiúg the demurrer to the petition and dismissing the same, for the reason that the action was barred by the,statute of limitations?

What is required of a creditor who seeks to enforce a claim under a contract made in this state, which accrued at the death of the debtor? Can the creditor remain idle for an indefinite period, although no administration be taken out upon the estate by the next of kin, or is it the duty of the creditor to be diligent in having an administrator appointed, in order to save the claim from the bar of the statute ?

In this case, plaintiff in error took no steps whatever to save her claim until April 6, 1903, a period of nearly eighteen years from the death of Robert Watson, and her claim came within the six-year bar of the statute.

This question has not been directly decided by our Supreme Court. The questions involved in the cases of Taylor v. Thorn, 29 Ohio St. 569, and Brown Co. (Treas.) v. Martin, 50 Ohio St. 197 [33 N. E. Rep. 1112], are not the same as the question made in this case. It was not considered by the court in either of those cases, and of course they are not decisive of the point.

We are aware that in the case of Tobias v. Richardson, 26 O. C. C. 81, it is held:

“A cause of action accrues, within the meaning of the statute of limitations, when there coexists a demand capable of present enforcement; a suable party against whom the demand may be then enforced; and a. party in being who has a present right to enforce it. Hence, when a note becomes due after the death of the payee the title thereto and the right to enforce its payments vests in the administrator, and the fifteen year limitation "(Sec. 4980 Rev. Stat.) begins to run from the date of the administrator’s appointment.”

This holding seems to be too broad. If it was the rule, that absolutely the statute did not begin to run until an administrator was appointed, then claims of this character would never become stale, as in suits at law the statute of limitations alone controls as to whether a claim is stale .or not. How unjust and impracticable this would be. A party might wait, as in the ease under consideration, until all the witnesses to the contract but one, who was interested as a father, were dead, and then have an administrator appointed and commence action.

In 19 Am. Eng. Enc. Law (2 ed.) 211, it is said:

“Independently of special provision for such cases, the plaintiff cannot defer by his own laches the time at which the funning of the statute shall begin., The statute runs from the time when he might have perfected his right, irrespective of the time at which he actually perfects it. In some jurisdictions this rule is declared by special provisions.”

In support of the text the author refers, among others, to the case of Bauserman v. Blunt, 147 U. S. 647 [13 Sup. Ct. Rep. 466; 37 L. Ed. 316], and in that case Mr. Justice Gray says:

“In the absence of express statute or controlling adjudication to the contrary, two general rules are well settled. First: When the statute of limitations has once begun to run, its operation is not suspended by subsequent disability to sue. Walden v. Gratz, 14 U. S. (1 Wheat.) 292 [4 L. Ed. 94]; Mercer v. Selden, 42 U. S. (1 How.) 37 [11 L. Ed. 38]; Harris v. McGovern, 99 U. S. 161 [25 L. Ed. 317]; McDonald v. Hovey, 110 U. S. 619 [28 L. Ed. 269]. Second: The bar of the statute cannot be postponed by the failure of the creditor to avail himself of any means within his power to prosecute or preserve his claim. Richards v. Insurance Co. 12 U. S. (8 Cranch) 84; [3 L. Ed. 496]; Braun v. Sauerwein, 77 U. S. (10 Wall.) 218 [19 L. Ed. 895]; United States v. Wiley, 78 U. S. (11 Wall.) 508, 513, 514 [20 L. Ed. 211, 213]; Kirby v. Railway, 120 U. S. 130, 140 [30 L. Ed. 569, 573]; Amy v. Watertown, 130 U. S. 320, 325 [32 L. Ed. 953, 956].”

Did not plaintiff in error fail to avail herself of a means within her power to preserve and prosecute her claim? Section 6005 Rev. Stat. provides:

“If the persons so entitled to administration are incompetent, or evidently unsuitable for the discharge of the trust, or if they neglect, without any sufficient cause, to take administration of the estate, the court shall commit it to one or more of the principal creditors, if there be any competent and willing to undertake the trust.
“If there be no such creditor, * * * the court shall commit administration to such other person as it shall think fit.”

If the nest of kin failed to take out letters of administration, it was her privilege to have had such letters issued to any suitable person, and if she wished to preserve her claim it was her duty to have an administrator appointed and commence her action before the time elapsed to bar her claim. This is the rule, at least, laid down by the Supreme Court of the United States.

In 19 Am. & Eng. Ene. Law (2 ed.) 211, it is again said:

“In many jurisdictions, however, the foregoing rule is modified to the extent that a reasonable time is allowed to the plaintiff within which to perfect his right of action, and the statute does not begin to run until after the elapse of this reasonable time.”

Many cases are cited by the author in support of this statement. Among others, cases from the state of Kansas, and it was under the statute of that state that the case of Bauserman v. Blunt, supra, was decided, and the court held that it was controlled by the decisions of that state and therefore a reasonable time must be allowed to take out letters of administration; the last paragraph of the syllabus being as follows:

“The statute-of limitations, as construed by the supreme court of the state, stops running at the death of the debtor, but for such a reasonable time only as will enable the creditor to have an administrator appointed.”

Again, in 19. Am. & Eng. Enc. Law (2 ed.) 219, it is said:

“Where there is no person in existence capable of suing or being sued, no fault can be imputed to a claimant for a failure to begin Ms action, and the rule is therefore well settled that the statute does not begin to run in such a case until there are in existence some one capable of suing and some one who may be sued. This rule is subject to the qualification that if it is within the power of the claimant to remove the incapacity, the exemption continues only for a reasonable time after he might have brought about a condition which would enable Mm to sue. ’ ’

Again, on page 221, it is said:

“Where, as in practically all the jurisdictions of the United States, a claimant has it in his power to procure the appointment of a personal representative by or against whom the suit may be begun and prosecuted, a reasonable time only in which to procure such appointment is allowed to such claimant, after the expiration of which the statute will run in any event. , In many of the states the time of the suspension of the statute in such cases is fixed by statute. ’ ’

We have quoted largely from the Encyclopaedia of Law, for the reason that it contains a reference to all the recent cases upon the question, and we have been unable to find any authority justifying the theory that a creditor can permit time to run indefinitely where, as in this state, it is in his power to have a personal representative appointed. The supreme court of the state of Kansas probably so held at one time, but it has repudiated the doctrine, if it ever existed in that state, and now holds that the creditor must have an administrator appointed in a reasonable time.

In Bauserman v. Charlott, 46 Kan. 480 [26 Pac. Rep. 1051], the court of that state finally held:

“Under the provisions of the statutes of this state, a creditor of a decedent, having a claim which he wishes to establish against the estate, may, if the widow or next of kin refuse to take out letters of administration, obtain letters for himself-or some other person, after fifty days from the death of decedent; and he cannot, without any good cause or reason therefor, defer making such application until the statute of limitations has run, and then claim that all of the time from the death of the debtor to the appointment of the administrator the statute of limitations is suspended on account of the nonappointment of such administrator. If a creditor would save Ms claim against the estate of a decedent from the bar of the statute, he must exercise reasonable diligence, if the widow or next of kin refuse to take out letters of administration, to obtain administration for himself or some other person.”

The statute of the state of Kansas is almost the same as the statute of this state; the facts of the case are identical with the facts in this ■case the eauáe of action having accrued at the death of the debtor; the opinion of Mr. Chief Justice Horton is exhaustive and convincing, and, it would seem, should be decisive of the question.

What is a reasonable time in which to have a personal representative appointed must, of necessity, depend upon the circumstances of each particular case.

In Bauserman v. Blunt, supra, it was held that five months and twenty days was not a reasonable time, where there was no suggestion in the petition that the creditor was ignorant of the debtor’s death.

In the case under consideration plaintiff in error, with full knowledge of debtor’s death, delayed for nearly eighteen years before having letters of administration issued and the commencement of her- action, and if we deduct the period of limitation, six years, there still remains nearly twelve years, which is certainly unreasonable.

The judgment of the court below will be affirmed.

Laubie, J., concurs.

Burrows, J., dissents.


source: Caselaw Access Project

author: WILSON, J.

license: Public Domain

text:
    DENTISTS — STATUTES.
    [Franklin (2d) Circuit Court,
    June, 1904.]
    Sullivan, Dustin and Wilson, JJ.
    State ex rel. Glenn v. Board of Dental Examiners, etc.
    1. Dentist hot Legally Practicing, Governed by New Laws, etc.
    A dentist wlio was not legally practicing his profession in this state at the tim'e the act of May 10, 1902 (Sec. 4404 Rev. Stat.) became effective, to wit, June 1, 1902, is governed by the provisions of said act. The fact that he might have made application to the state board of dental examiners for, and received a certificate to practice under former laws before their repeal, was not a vested right; ■ nor was the mere right to make such application under said laws such a “cause of proceeding” as is affected by Sec. 79 Rev. Stat., which provides that the repeal of a Jaw shall not affect existing causes of proceeding unless expressly so provided.
    2. New Dentist Law not Unreasonable in its Terms.
    The act of May 10, 1902 (Sec. 4404 Rev. Stat.), governing the practice of dentistry in Ohio, does not deprive, absolutely, a dentist from practicing his profession, nor does it place unreasonable restrictions upon such right.
    ■8. Legislature may Regulate Practice of Dentistry, When.
    Where no vested right to practice dentistry exists, it is competent for the legislature to change the terms, and raise the standard of proficiency as to those who desire to engage in the practice of the profession.
    Error to Franklin common pleas court-

      G. J. Marriott, for plaintiff.
    S. W.Bennett, for defendant.
    For defendant’s brief of tbe circuit court, see State v. Board of Dental Examiners, 14 Dec. 245.
   WILSON, J.

We are of tbe opinion that tbe judgment in tbis case should be affirmed.

Section 4404 Rev. Stat. (95 O. L. 313), provides:

“Any and all persons wbo shall desire to practice dentistry in tbis state after June 1, 1902, except such persons as are legally practicing dentistry, as defined in this act in the state at tbe time of the passage of tbis act, shall file application, ’ ’ etc.

Tbe relator was not legally practicing dentistry in this state at tbe time of tbe passage of tbe act. He bad not obtained tbe required certificate under any of tbe prior acts of the legislature. The act of May 10, 1902 (95 O. L. 313), is therefore by its express terms made applicable to him, not coming within the excepted class.

Tbe question then is, does it deprive him of a vested right 1

What be demands at tbe hands of the board is the right to practice his profession in Ohio. He had no vested right to do so at the time of the passage of the act. It does not, absolutely, deprive him of that right, or place unreasonable restrictions upon its acquirement. That he might have applied under the former act and obtained the necessary certificate according to its provisions under the facts pleaded in the petition was not. a vested right. It simply provided the way in which the right might become vested. It was competent therefore for the legislature to change the terms by raising the standard as to him, the same as to any one else who was not then legally practicing dentistry in the state.

The right to make the application under the prior law was not such cause of proceeding as is affected by the provisions of Sec. 79, Rev. Stat.

,The judgment is affirmed.

Sullivan and Dustin, JJ., concur.


author: GIFFEN, J.

text:
    PLEADINGS — EVIDENCE—PAYMENT.
    [Hamilton (1st) Circuit Court,
    May 16, 1904.]
    Giffen, Jelke and Swing, JJ.
    Susan J. Lord et al. v. Isaac Graveson et al.
    1. Proof of Payment Must be Specially Pleaded in Action Undeb Sec.. 6086 Rev. Stat.
    In an action upon an account under Sec. 5086 Rev. Stat., although it is necessary to aver nonpayment of the debt in order to show a breach of the contract, yet proof of the same is not required, and, in order to prove payment, the debtor must specially plead it.
    2. Payment from Proceeds of Note upon Account with Maker Final Payment, When.
    An exchange of notes without any limitation upon the use of the same vests the title thereto in the holder, and when discounted the proceeds may be applied as the holder directs, and should he pay any of such proceeds to the maker upon an account with him, or upon notes given in settlement of the account, it would constitute a final payment on account, although the holder failed to pay his own notes given in exchange therefor when due.
    J. C. Healy and C. W. Baker, for plaintiffs, in error.
    Stephens, Lincoln & Stephens, for defendants in error.
   GIFFEN, J.

This was an action npon an account under Sec. 5086 Rev. Stat. in which the plaintiffs in error filed a general denial. Two alleged errors may be considered together:

First. That the court erred in charging the jury that payment is an affirmative defense, and the burden of proof is on the defendants.

Second. That the court erred in refusing to allow the defendants to cross-examine the plaintiff upon the question of payment.

The argument is that the averment of a certain amount due upon an .Account, and that there are no credits thereon, include the averment Shat the account is unpaid, and that, therefore,' under a general .denial,, evidence of payment should be received.

In the case of Lent v. Railway, 180 N. Y. 504 [29 N. E. Rep. 988], the syllabus contains this proposition:

“In an action upon an alleged indebtedness an allegation in the complaint of nonpayment is essential. This is not affected by the rule that payment must be pleaded as an affirmative defense, and cannot be proved under the general issue, but the rule simply modifies the general rule of pleading so that the averment of payment is not put in issue by a general denial.”

In the case of Melone v. Ruffino, 62 Pac. Rep. 93 [129 Cal. 514; 79 Am. St. Rep. 127], the supreme court of California held:

“Where plaintiff has proved the existence of the debt sued on the onus is on defendant to prove that it has been paid.” ,

Judge Swan, in his work on “Pleading and Precedents,” page 246, says: v

“Under the general issue at common law, any facts tending to show that, when the action was brought, the plaintiff had no subsisting cause of action, might be introduced in evidence — such as payment, release, accord and satisfaction, etc.; whereas, under the code, the facts themselves, and all the facts alleged in the petition are controverted by the general denial; and if, notwithstanding the existence of those facts, something transpires afterwards which avoids or discharges the cause of action alleged in the petition, then a general denial is not only false, but such facts cannot be given in evidence under it. ’ ’

On page 188 he says that an allegation that a specific sum on an account or note is due includes the allegation that the claim is a subsisting, existing debt, and is unpaid. It would seem, therefore, from these authorities that while it is necessary to aver nonpayment of the debt in order to show a breach of the contract, yet proof of the same is not-required, and that in order to prove payment it must be specially pleaded. At all events, the plaintiffs in error were not prejudiced for the reason that on January^ 23, 1901, they filed an additional answer in which they set up payment by their codefendant, John Carlisle, and afterwards they had abundant opportunity and did cross-examine the plaintiff upon the subject of payment.

The giving of charge No. 12, requested by the plaintiff and excepted to by the plaintiffs in error, is another ground of error, and is as follows:

“If the jury believe that some part of the plaintiff’s claim for work and labor was paid in cash by John Carlisle, but that at the time of such payments John Carlisle was indebted to the plaintiff for money or notes which said Carlisle had discounted in a sum as great or greater that the amount of such payments, and if the jury believe that said Carlisle received as much cash and notes from Graveson for the purpose of meeting his notes to Graveson given on account of the contract as he gave him cash and paid notes on account of the contract, or if the jury believe that Carlisle received from Graveson as much or more cash and notes between the date of his contract and the date of Carlisle’s agreement as he gave Graveson during said time in cash or notes which were paid, and the jury is unable from the preponderance of the testimony to say how many and which of the notes and items of cash on either side are connected with', the contract, then the defendants are not entitled to any credit on the-account for work and labor sued for in this action.”

It is claimed by counsel that this charge contains three distinct, propositions, neither of which is sound. But we think that a fair construction limits it to two. The first five lines assume that payments were made by John Carlisle, but that if he was indebted to plaintiff for money and notes in a sum as great or greater than the amount of such payments, the defendants would not be entitled to any credit on the account. Standing alone, this would be clearly erroneous. Payment itself implies a discharge of the debt, and it is immaterial that the defendant at the same time was owing .the plaintiff an equal or greater amount upon other obligations. But the next four lines of the charge were intended to qualify this statement, by showing that Carlisle received as much cash and notes from Graveson for the purpose of meeting his notes to Graveson given on account of the contract as he gave him cash and paid notes on account of the contract. The defect in this qualification consists in not limiting it to the time of any particular payment and embracing all the transactions pertaining to the account. If, when a note given in settlement of the account became due and was renewed for a sum less than the original amount and the difference was paid by Carlisle out of his own funds, it constituted a payment to that extent, notwithstanding a subsequent renewal note was given for the original amount. For example, when the note for $1,800 became due— September 19,1891 — it was renewed by giving two notes of $875 each, the difference, of $50 being paid by John Carlisle. This was a final payment of that sum, although in renewing either of the $875 notes it may have been increased by that amount or more. There are many such transactions shown in the record, as Carlisle and Graveson were exchanging accommodation notes, not only during the life of this contract but for some time prior thereto. It was, therefore, prejudicial error in giving the first proposition contained in this charge, although no objection can be found to the last one.

A like error occurred in the general charge at page 812 of the bill of' exceptions, to wit:

“Nor is the mere passing of the actual money by John Carlisle to Graveson, and it credited on the account, absolute payment, if John Car-lisle by some note or other paper got some money or the same amount and subsequently never paid such note or obligation exeept by renewal. If, however, when John Carlisle gave Graveson money or a note, and Graveson accepted the money or note as payment or satisfaction, or Graveson then gave his note or obligation as a separate or independent loan, looking solely to the note or obligation for payment, the same would be a payment and extinguishment of the debt.”

If money was given by Carlisle to Graveson and credited on the account, the fact alone that Carlisle owed Graveson upon, some other obligation did not destroy the credit as a final payment.

The record discloses that when notes were renewed by Carlisle, there was an exchange of notes, Graveson .giving to Carlisle notes for the same amount. It is claimed that when this was done, Carlisle was entitled to use the note received by him as he might see fit, unless at the time some restriction was imposed. An exchange of notes without any limitation upon the use of the same, vests the title to the respective notes in the holder, one being the consideration for the other, and when discounted the proceeds can be applied as the holder may direct. If Carlisle paid any of such proceeds to Graveson upon the account, or upon the notes ¡given in settlement of the account, it constituted a final payment on account, although Carlisle failed to pay his note when due.

Counsel for defendants in error direct our attention to entries in Carlisle’s books, showing that certain notes were given expressly to take up or renew other notes given in settlement of the account, but there are many other entries which fail to show for what pupose the exchange of notes was made except for mutual accommodation. No error of law is predicated on this view of the case, but that the verdict is against the weight of the evidence.

At page 636 of the bill of exceptions, the plaintiff was asked:

“What was said between you and John Carlisle at any time, when you received a note from him, any of these notes that you have testified to?
“A. There was not anything said at all. If they were paid the understanding was we would credit him with the amount. No agreement about it.”

If, therefore, nothing was said.at the time, and no understanding was otherwise had as to the use of the notes, then Carlisle could use the proceeds as he wished, even inpayment of notes given to Graveson.

. The trial court reduced the verdict of the jury by the sum of $805.59, which counsel for defendants in error claim embraces four items, making in all $809.59. Upon the same theory that justifies the allowance of these items, we think the verdict should have been reduced by the items of $100, .$67, two of $50 each, $170, and $136. To this extent, the verdict was manifestly against the weight of the evidence, and the court erred in giving special instruction No. 12.

The judgment will therefore be reversed and the cause remanded for a new trial.

Swing and Jelke, JJ., concur.


author: CHERRINGTON, J.

text:
    BURGLARY — CRIMINAL LAW.
    [Pickaway (4th) Circuit Court,
    November Term, 1902.]
    Sibley, Cberrington and Jones, JJ.

      Edward Bailey v. State of Ohio.
    ■"Building” Within Meaning or Sec. 6835 Rev) Stat. Must Have Pebmancy oí Steuctuee.
    A “building” within the meaning of Sec. 6835 Rev. Stat., defining the crime of burglary, must have some permanency of structure; hence, a chicken coop, 37% by 38 inches, which might he carried from place to place, is not a “building,” the entering of which with intent to steal would constitute burglary.
    ERROR to Pickaway common pleas court.
    Chris. A. Weldon, for plaintiff in error,
    cited:
    State v. Schuchmann, 133 Mo. Ill [33 S. W. Rep. 35]; State v. Green, 6 N. J. Law 123; Hall v. State, 20 Ohio 7; Denbow v. State, 18 Ohio 11; Shultz v. Cambridge, 38 Ohio St. 659; "White v. Woodward, 44 Ohio St. 347 [7 N. E. Rep. 446]; Bishop, Or. Law See. 98; Williamson v. State, 44 S. W. Rep. 1107 [39 Tex. Or. App. 60]; Woodworth v. State, 26 Ohio St. 196, 198; Thalls v. State, 21 O. S. 233; Cline v. State, 43 O. S. 332 [1 N. E. Rep. 22]; Weybright v. Fleming, 40 O. S. 52; Adams v. State, 31 Ohio St. 462; Morehead v. State, 34 Ohio St. 212.
    Irvin F. Snyder, for defendant in error.

       Affirmed, without report, State v. Bailey, 69 Ohio St. 551.

   CHERRINGTON, J.

This is a proceeding in error. Bailey was tried on the charge of burglary and found guilty, and the case is now here to reverse the judgment of the common pleas court in entering up sentence and judgment on the verdict of guilty rendered by the jury.

The burglary with which he was charged was in burglariously entering a building, viz., a chicken house, the property of one Jefferson Blacker in this county and taking therefrom seven chickens of the value of two dollars.

The evidence is all in the bill of exceptions, together with the charge of the court, and the plaintiff claims there was error in the trial of the case in two particulars:

First, that the verdict was against the weight of the evidence, in this, to wit, that the evidence did not show that the house he is charged with entering was such a one as is contemplated by Sec. 6835 Rev. Stat. which defines the crime of burglary; and, second, that the court erred in its charge to the jury in that particular as to the house, assuming that if they should find the house to be of certain dimensions as described by witnesses beyond a reasonable doubt, that they should find the defendant guilty, because that was such a building as came within the purview of the section I have referred to.

So if the first assignment of error is correct, that the verdict is against the weight of the evidence, the charge of the court in that particular was wrong. If, however, the evidence does show that this building, as it was called, was such a one as is included in Sec. 6835 Rev. Stat. then the charge of the court was correct.

Prior to 1885 Sec. 6835 Rev. Stat. was as follows:

“Whoever, in the night season, maliciously and forcibly breaks and enters any dwelling house, kitchen, smokehouse, shop, office, storehouse, warehouse, malthouse, stillhouse, mill, pottery, factory, water craft, schoolehouse, church or meetinghouse, barn or stable, or railroad car, car factory, or station house,” should be guilty of the crime of burglary.
But in 1885 it was amended so as to include, “or any other building.”

Now of course it will be readily seen that this chicken house is not specifically named in this statute; but the claim of the state is that it comes under “or any other building” — that it is a'building and specifically comes within the purview of that statute.

The testimony on that point is brief as to the kind of a house it is,, a§ stated by the witness who made the measurements:

“The width of the coop in front is 37% inches. Sides 38 inches. Three feet high in front and the back is 2 feet high. The door is two-feet high, and 13% inches wide. The piece of lath which fastens the door 2 feet and 6 inches. The length of the roof 5 feet and 6 inches. The width of the roof 4 feet and 2 inches.”
Q. “Do you know the length of the building?” A. “I measured it, it ought to be on there. It is almost square, the sides are 38 inches by 37% inches.”

Tbe following questions were asked of the owner of the property:

Q. “These chicken coops are usually called brooders ?’ ’ A. “No,, sir, I had them to put the hen and chickens in after they were hatched, to rear the young chickens, that was what I had them built for. ’ ’
Q. “You would very likely take them with you if you moved from that place?” A. “I think I would. They are very nice, and if I' would move some place else I would certainly move my coops if I intended to follow chicken raising.”
Q. “They are not attached to any thing?” A. “They are built right on the ground. They are so they can set on the ground, but are not built flat on the ground, they have a two by four under "them and set up on bricks, on account of the rats.”

On page 16 of the bill of exceptions is a further description:

Q. “It was a coop that could be moved from one place to another ?’’ A. “Yes, sir, but one man could not move it, it is very heavy.”

Now is that a building? The indictment describes it as a certain building, viz., a chicken house. Now it is true, as claimed by the state that the phrase “or any other building” was intended by the legislators to cover almost every building that could be imagined; but is this a building? A small chicken coop, larger somewhat than a martin box, and which the prosecuting attorney and Mr. Weldon counsel for defendant, could have carried, if they stuck a pole through the top, all over town without any serious inconvenience to themselves; it could be put on an ox cart and carried away, and it would still be a building I suppose according to the claim of the prosecuting attorney; it could be stuck up on a stiff pole, like we have frequently seen martin boxes and it would still be a building according to that notion.

Such a building as is contemplated by the statute we think means a building that has some permanency of structure. It need not be absolutely permanent, it need not be such a structure as that the removal of it, or in detaching it from the real estate it would damage the real estate at all, but it must have some permanency about it, such we think as this does not have, and we feel quite well satisfied that it does not come' within the purview of See. 6835 Rev. Stat. so that we think the two assignments of error are well taken, and the judgment will be reversed.

Sibley and Jones, JJ., concur.


author: PER CURIAM.

text:
    ATTACHMENT AND GARNISHMENT — ERROR.
    [Hamilton (1st) Circuit Court,
    1904.]
    G-iifen, Jelke and Swing, JJ.
    Amy B. Foote v. Central American Commercial Co.
    1. COMMON Pleas Coukt not Authorized by Sec. 6733 Rev. Stat. to Discharge Attachment.
    The common pleas court is not authorized by Sec. 6733 Rev. Stat., on error to a justice of the peace, to discharge an attachment; its jurisdiction is limited in such case to entering a \ judgment of reversal, and for costs accrued at that time.
    2. Section 6496 Rev. Stat. Authorizes Service by Publication When Summons Cannot be Served.
    A plaintiff in attachment is entitled, under Sec. 6496 Rev. Stat., to obtain service by publication, upon a showing that summons cannot be served upon defendant within the county.
    3. Mere Collector of Subscriptions, not a “Managing Agent” of Foreign Corporation, Under Sec. 6480 Rev. Stat.
    One who collects payments on subscriptions for lands o^ a foreign corporation is not a “managing agent” upon whom process may be served, within the purview of See. 6480 Rev. Stat., even though he be a director thereof.
    Error to Hamilton common pleas court.
    This was a suit brought before a magistrate by Amy B. Foote against the Central American Commercial Co. to recover for advertising, cash advanced, stenographic service, etc. Summons was issued for the company and returned not found. An alias summons was issued and served upon Herman Duhmé as “managing agent” and so returned. An attachment and garnishment was also issued and served upon Mr. Duhme as garnishee, upon which the company filed a motion before the magistrate to set the service made upon Mr. Duhme as “managing agent” aside, on the ground that he was not and never had been its “managing agent.” The motion was overruled, the attachment and garnishment sustained, and judgment rendered for the plaintiff for the amount sued for. Defendant objected to all of these proceedings, and took a bill of exceptions to the order of the magistrate overruling the motion, and to the judgment.
    Service was attempted to be made upon .the defendant under Sec. 6480 Rev. Stat., providing for service on foreign corporations generally, by serving its “managing agent.” It appears that Duhm» was a director of the Central American Commercial Co., that he was a subscriber to their lands, and according to his own testimony had collected payments from other subscribers in his vicinity, reserving his commission, therefor, but had transacted no other business for them.
    T. F. fiallam, for plaintiff in error.
    Joseph L. Lackner, for defendant in error:
    What constitutes a “managing agent” within the meaning of Sec. ■6480 Rev. Stat. Conley v. Alkali Works, 190 U. S. 406 [23 Sup. Ct. Rep. 728; 47 L. Ed. 1113]; Bucket Pump Co. v. Iron & Steel Co. 11 Cire: Dec. 418 (21 R. 229) ; American Express Co. v. Johnson, 17 Ohio St. 641; Gibbin v. Coal Co. 13 Re. 777 (2 C. S. C. 75) ; Barney v. Railway, 12 Re. 295 (1 Handy 571); Robbins v. Taxing District, 120 U. S. 489 [7 Sup. Ct. Rep. Rep. 592; 30 L. Ed. 694]; Gale Mfg. Co. v. Finkel-istein, 22 Tex. Civ. App. 241 [54 S. W. Rep. 619]; Toledo Commercial Co. v. Manufacturing Co. 55 Ohio St. 217 [45 N. E. Rep. 197]; Boardman v. McClure Co. 123 Fed. Rep. 614; Goldey v. Morning News, 156 U. S. ■518 [15 Sup. Ct. Rep. 559; 39 L. Ed. 517]; St. Clair v. Cox, 106 U. S. 350 [1 Sup. Ct. Rep. 354; 27 L. Ed. 222],
    Appearance and waiver of defects in service. Smith v. Hoover, 39 Ohio St. 249, 257. • ■
   PER CURIAM.

Herman Duhme was not the managing agent of the defendant, a foreign corporation, within the meaning of Sec. 6480 Rev. Stat. upon whom service of summons could be had, and the court of common pleas properly reversed the judgment of the justice of the peace. There was error, however, in discharging the attachment, as the court was authorized under Sec. 6733 Rev. Stat. to render only a judgment of reversal, and for costs accrued at that time.

The plaintiff below was entitled, upon a showing that the summons could not be served upon the defendant within the county, to obtain service by publication. Section 6496 Rev. Stat.

The judgment of reversal and for costs will be affirmed, and in all other respects reversed.


text:
    ACTIONS — APPEAL—JURY.
    [Hamilton (1st) Circuit Court,
    1904.]
    Giffin, Jelke and Swing, JJ.
    M. G. Heintz et al. (Receivers) v. Anthony et al.
    Suit foe Recovery of Money Judgment a Legal Action, Notwithstanding In- ■» cidental Equitable Questions.
    Either party to a suit, the main issue of which is the recovery of a money judgment, is entitled to a jury; and the fact that there are incidental equitable questions between other parties will not change the character of the action.
    Appeal from Hamilton common pleas court.
    C. W. Baker and Miller Outcalt, for plaintiffs.
    Rogers Wright, Thomas Bentham and A. C. Shattuck, for defendants :
    If a judgment sought is for money only, though it would have been an equity case before the code, a jury is demandable. Gunsaullus v. Pettit, 46 Ohio St. 27; Dodsworth v. Hopple, 33 Ohio St. 16.
    Prayer alone does not determine whether an action is appealable but it depends upon the facts in petition and case made. Reed v. Reed, 25 Ohio St. 422; Corry v. Gaynor, 21 Ohio St. 277.
    Where injunction is not primary relief asked case not appealable. Brundridge v. Goodlove, 30 Ohio St. 374; Chapman v. Lee, 45 Ohio St. 356; Bugh v. Sturgeon, 41 Ohio St. 402.
    If no other relief than a personal judgment should be given on the facts stated, the fact that other relief is asked and given will not make the case appealable. Dunn v. Kanmaeher, 26 Ohio St. 497.
    No appeal in interpleader. McGinnis v. Schwab, 24 Ohio St. 336; Pratt v. Insurance Co. 3 Circ. Dec. 287 (5 R. 587) ; Warner v. Jseger, 3 Circ. Dec. 9 (5 R. 16); Lockland Lumber Co. v. Marsh, 8 Circ. Dec. 624 (16 R. 432) ; affirmed, Lockland Lumber Co. v. Marsh, 62 Ohio St. 632; Scott v. Hewett, 3 Circ. Dec. 635 (7 R. 5).
   PER CURIAM.

We are of opinion that the main issues in the court below, especially that between Michie and Symmes and Edwards and that between Michie and Symmes and Olmsted Brothers, were purely issues for money only, and as to those either party was entitled to a jury.

The judgment on these issues is the one particularly appealed from.

The fact that there were other incidental equitable questions between other parties does not change the character of the action where the pri-n-cipal relief sought is a money judgment. Warner v. Jaeger, 3 Circ. Dec. 9 (5 R. 16) ; Pratt v. Insurance Co. 3 Circ. Dec. 287 (5 R. 587); Lockland Lumber Co. v. Marsh, 8 Circ. Dec. 624 (16 R. 432).

The appeal herein is prosecuted by Messrs. Symmes and Michie who lost below on issues triable to a jury.

The appeal should be dismissed.


author: HAYNES, J.

text:
    TRUSTS AND TRUSTEES — MORTGAGES.
    [Lucas (6th) Circuit Court,
    June 11, 1904.]
    Parker, Hull and Haynes, JJ.
    Security Trust Co. v. Merchants’ & Clerks’ Sav. Bank et al.
    1. Trustee of Express Trust Empowered to Sell Property has Authority to Mortgage.
    A trustee under a deed of trust empowering him to sell portions of the estate, if necessary to properly support and educate the cestuis que trust, has power to mortgage the same to raise funds to liquidate a pre-ex-isting debt contracted for such purposes; and a Iona fide mortgagee is not bound to ascertain that such contingency has arisen; a fortiori when the trustee secured permission to effect such loan, from the court appointing him.
    2. Evidence that Trustee and Mortgagee Acted in Good Faith Admissible.
    Evidence that the mortgagee acted prudently and in good faith, under the conviction that trustee was acting honestly, and that there was no collusion in effecting the loan for any purpose other than that of the trust, is admissible.
    Appeal from Lucas common pleas court.
    Johnson Thurston, for plaintiff:
    A power must be strictly complied with. 18 Am. & Eng. Enc. law (1 ed.) 937; Taylor v. Galloway, 1 Ohio 232, 234; Breuer y. Hayes, 10 Re. 583 (22 Bull. 144) ; Cleveland v. Bank, 16 Ohio St. 236, 241, 256 [88 Am. Dec. 445]; Shillaber v. Robinson, 97 U. S. 68, 78; Williams y. Peyton, 17 U. S. (4 Wheat.) 77; Daly v. James, 21 U. S. (8 Wheat.) 495, 535, 536; Stokes v. Payne, 58 Miss. 614, 617 [38 Am. Rep. 340]; Dolan y. Baltimore (Mayor), 4 Gill (Md.) 394, 405; Taylor v. Galloway, 1 Ohio 232 [13 Am. Dee. 605] ; Perry, Trusts Secs. 783, 785, 789, 831; Owen y. Reed, 27 Ark. 122; Yernon v. Board, 47 Miss. 181; Frink v. Roe, 70 Cal. 296, 297, 309 [11 Pac. Rep. 820] ; Hunt v. Rousmanier, 21U. S. (Wheat.) 174; Kerr, Real Prop. Secs. 1836, 1843; Minot v. Pres« nott, 14 Mass. 495; 2 Sugden, Yend. & Pur. 48; Hill, Trustees 178.

      A person dealing with the trustee and trust property cannot safely rely upon the statements of the trustee. He is bound to know the terms-of the trust and whether the facts represented to be true do in fact exist or not. Loring v. Brodie, 134 Mass. 453, 459, 470; Pettis Co. v. Gibson,. 73 Mo. 502, 506; Hancock v. Whybark, 66 Mo. 672, 674; Neilson v. Char-iton County, 60 Mb. 386; Story, Equity Sec. 1131; Perry, Trusts Secs. 795, 800; Clyde v. Simpson, 4 Ohio St. 445.
    Unless specially authorized so to do the trustee cannot issue negotiable papers executed in his trust character so as to bind the trust estate. Patapsco Guano Co. v. Morrision, 2 Woods 395 [18 Fed. Cas.. 1284].
    The power in a trust deed to sell does not include the power to-mortgage, Stokes v. Payne, 58 Miss. 614, 618 [38 Am. Rep. 340] O’Brien v. Flint, 74 Conn. 502 [51 Atl. Rep. 547] ; Benedict v. Arnoux, 39 N. Y. Supp. 793 [7 App. Div. 1] ; Ferry v. Laible, 31 N. J. Eq. 566; Patapsco Guano Co. v. Morrison, 2 Woods 395 [18 Fed. Cas. 1284] ; Hoyt y. Jaques, 129 Mass. 286; Breuer v. Hayes, 10 Re. 391 (21 Bull. 29); Breuer y. Hayes, 10 Re. 588 (22 Bull. 144); Russell v. Russell, 36 N. Y. 581 [93 Am. Dec. 540]; Minot v. Prescott, 14 Mass. 496, 497; Hubbard, v. German Cath. Cong. 34 Iowa 31, 32; Albany Fire Ins. Co. v. Bay, 4 N. Y. 9; Loring v. Brodie, 134 Mass. 453, 459, 470; Bloomer v. Waldron, 3 Hill (N. Y.) 361; Waldron v. MeComb, 1 Hill (N. Y.) Ill; Morris v. 'Watson, 15 Minn. 212; Jones, Mortgages Sec. 129; Price v. Courtney, 87 Mo. 387, 393 [56 Am. Rep. 453]; Perry, Trusts 768, Í69; Taylor y.. Galloway, 1 Ohio 232 [13 Am. Dee. 605].
    The probate court has no jurisdiction to construe an instrument creating a trust fund. Rothgeb v. Mauck, 35 Ohio St. 503, 505; Sec. 6202 Rey. Stat.; Wiswell y. Church, 14 Ohio St. 31, 32; Merrick v. Merrick, 37 Ohio St. 126, 129, 130 [41 Am. Rep. 493].
    O. B. Snider, for defendant.
   HAYNES, J.

This case comes into this court by appeal, and has been heard upon the evidence. The case presents some questions of importance, although, the amount in controversy is not very large. It has been very fully and very ably argued by counsel on either side, and a very large number of authorities cited. In the opinion which we shall deliver in the case we shall be very brief in disposing of the questions, not attempting to discuss all questions raised in the ease, but briefly to announce our conclusions.

It appears that about the year 1892 George Dennison Keeler, a resident of tbis city, bad been divorced from his wife. He had three children, two boys and one girl. The possession and custody of the girl had been delivered to the mother; the boysiseemed to have fallen to the lot of the father. George D. Keeler was the son of Salmon IT. Keeler, who had long resided in this county, and upon whose death a considerable estate had fallen to his children, and among others, George D. Keeler being entitled to and possessing his share. His financial circumstances became such that he seems to have had some little doubt about his future, financially, and he, on May 12, 1892, executed a deed of trust to his brother, Arthur B. Keeler. George was possessed at that time of 150 shares of $100 each of stock of the Holcomb National Bank of the city of Toledo, and these he transferred to his brother in trust for the benefit of his. three children, according to the terms of the instrument, which was quite lengthy and quite elaborate and full, fifty shares to be held for each child. It provided that the shares should be held until the youngest child became of age, and that the income of them should be applied for the education and support of the children, if necessary. So long as the daughter resided with the mother, the whole income went to the support of the two boys. It provides that the stock should not be sold, except under certain circumstances. The whole scope and purpose of the trust was to set aside this property to the children, and preserve it as far as possible for them until the youngest should become of age. Among other things it provided:

Should my own financial circumstances be such as to prevent me from furnishing any maintenance or support or education to my children before they become twenty-one years of age, or the the income or dividends, from said stock fail to give to my sons the necessary support and education, then and in such case said trustee is hereby authorized and directed to convert a few shares of the quantity belonging to each of said cestui que trust into money from time to time, to obtain the necessary means to furnish to each necessary support or education.

It is claimed on behalf of the trustee that from that time forth the father failed to pay anything towards the support and maintenance of the children, and it would seem from the testimony here that his financial condition was gradually growing worse. >

It appears by the evidence that at the time this trust deed was executed, and just prior thereto, the former guardian of the children resigned, and Arthur B. Keeler was appointed the guardian of the person, of the three children, so that he stood in the dual capacity as guardian of the persons of the three children, and as a trustee, holding this property for their benefit; and it should be noted that by the statutes governing tbe guardianship of the person of children, that the guardian of the person is to see to the education of the children, their care, and that he is authorized by law to draw upon the person who is the guardian of the estate of the children for the necessary moneys for their education and support. We may remark in passing that the guardian of the state would stand in relation to these parties substantially as would the guardian of the person, of course being affected simply by the limitations of the trust.

Matters had run along, and the guardian had been receiving dividends whenever they were made on this property, and attending to the education of the children, some of them being sent away to school, and some of them in other places. In the course of time, it seems that George D. failing to provide money, and the children having to be supported and maintained, it became necessary for the trustee to borrow money, and he did obtain from the administrator of the estate of his father Salmon Keeler, $600, which it is stated in the testimony was used for the support and maintenance of these children, and their education. But the time came when that money was becoming due, and thereupon he went to the defendant savings bank, and desiring to borrow $600 of that bank, negotiations were opened for the purpose of seeing whether the bank would loan him the money. He proposed to secure a loan of $600 by the transfer of $1,000, that is ten shares, of the capital stock of the Holcomb bank which he held in trust, and the bank officers made inquiry with respect to the matter, and investigated, it seemed, quite fully into the circumstances and the needs of the trustee with regard to the moneys that he required. The administrator of the estate of Salmon Keeler appeared before them to make a statement with regard to the moneys that had been loaned, and a statement was made with regard to the use that had been made of that money, to wit, for the support and maintenance and education of thee hildren. The bank, desiring to be perfectly sure about the position they were taking, requested that he apply to the probate judge who had appointed him guardian, and get his consent or an order that he might make this loan. He went to the probate court, and the probate court appointing him, granted him permission to pledge this stock. While perhaps it may be doubted whether without that order it would not have been legal and binding, yet the circumstance goes to show the care which was exercised by the bank in the negotiation of this loan, in endeavoring to ascertain their rights in taking the stock for security. Thereupon the loan was affected and the stock was pledged, and such of the money as was needed to take up the note to the administrator of the estate of Salmon H. Keeler was paid over to him. The balance was paid to the trustee for his use, and was used for the •children.

Subsequently Arthur Keeler moved to California, and certain parties who were interested in the children took steps to have him removed ■as trustee of’this fund, and he was by order of the court of common pleas removed from the position, and the Security Trust Co. was appointed in his place. Thereupon the.Seeurity Trust Co. demanded of the Merchants’ ■& Clerks’ Savings Bank that they should turn over to it these ten shares of stock which they held. The note which they were pledged to secure had not been paid. A little interest had been paid, but the face of the note and some arrears of interest were* still due. The security Trust Co. made no tender of the amount due on the note, nor did it make any offer to pay it. It assumed that the bank had no right whatever to this stock; that its title was wholly void, and that the Security Trust Co. was entitled to the immediate possession of the property.

Upon this proposition have been cited the decisions that I have referred to. It is claimed upon the one hand that under this clause in the deed of trust which authorized the selling of the property under certain circumstances, the trustee could only sell and receive the amount of money for which he could sell the property. On the other hand, it is claimed by the bank that the right to sell included also, under proper circumstances, the right to mortgage.

Testimony was offered tending to prove that ■ at the time the loan was made the stock of the bank, owing to the fact that it had passed dividends for two years, was below par, or at least not above par, and that it was rather under a cloud as a marketable article; that it was better for the bank and considered better for the tust and trustee that the stock should be kept in shape where it would have the benefit of any rise in the market price thereof. The testimony shows that there has been an increase in the earnings of the bank since that time, and an increase in the value of the stock and its saleability. It is claimed by the bank that these matters were taken into consideration at the time the money was borrowed.

It is claimed that even if there was a right to mortgage the property, the officers of the bank were bound to know that circumstances had arisen that would authorize the trustee to pledge it; they were bound to ascertain and know, if we understand the argument, that George D. Keeler was neither furnishing anything for the support and education of his children, nor had he the means to do it. It will be observed, that contingency arising, the trustee would have the right to sell this property, or so much of it as would be necessary, from time to time, from each one’s-share, to support that particular child. If the trustee could make no. sale of the property except that the person who purchased it must ascertain and know, and be able to maintain in court at any'and all times that the contingencies had arisen, under which a sale could be made, he would not be very likely to make a sale of the property. No person who-wanted to buy the property would take upon himself an offer of that kind, and be able to come into court and show that the trustee had the right to sell. So the mortgagee, if there was a right to mortgage, would stand in the same position.

I have said that a large array of authorities have been cited upon the propositions respectively urged by the parties to this suit. It is. sufficient to say, and all I deem necessary to say at this time, that there are a large number of authorities, very able courts, that hold that the power to sell does not include the power to mortgage, and that the powers, that are stated in the deed of trust with which the trustee is qualified must be strictly followed and pursued. There are a large number of authorities of very able courts who hold that the power to sell does include the power to mortgage, some of the ablest courts in the United States saying that it is, beyond all question. We are inclined to hold, and we do hold, so far as this case is concerned, that this trustee had the power, the contingency arising, to borrow money for the support and maintenance of these children, and to pledge this stock for such a loan. It is proper to offer testimony here showing that the bank acted prudently and in good faith in regard to the matter, and that under the conviction that the trustee was acting honestly in the purpose in which he was acting, in borrowing the money, and that there was no collusion on its part with him in loaning it for any other purpose than that for which it was stated. We think, so far as we are concerned, that this is the justice and equity of a matter of this kind, and we are inclined to follow those decisions that hold the law to be as stated,.in that respect. In those cases it has been held by the courts that testimony of the kind that I speak of is. admissible. The testimony in this case we think shows that this money was borrowed for this purpose, was used for this purpose. The fact that it was used to pay a debt that existed for money that had been already borrowed and used for this purpose is matter -that would make-no difference in the case, in our judgment.

It is claimed that there were some moneys in the bank that should have been appropriated to this purpose; but this trust was a continuing-trust. If that money had been used for this purpose, the trustee would have had to raise money for the purpose of paying expenses. It was. simply a matter in which the trustee was using his own good judgment honestly and fairly to meet the expenses of the education of the children. —expenses already incurred and expenses to be incurred. It was-claimed that George D. Keeler had some property still in his possession,, but here was the trustee chargeable with the care and support and maintenance of the children, and the father was furnishing him no money,, and he could not sit down and wait until some interest was worked out' of the father’s estate, if George had anything left. It appears that his: creditors were all after him, and were attaching properties that were-supposed to belong to him, and that he was in financial difficulties, and., going through his property rapidly. The testimony tended to show that he was out of money, had no means, was practically poor. The fact is, under the circumstances of the ease, that the trustee could act, might act, and should act, for the purpose of raising money for the support and maintenance of these children; that the contingency had arisen which had been contemplated in the deed of trust itself for furnishing this money for the support of these children'.

After stating our conclusions in regard to the matter, we hold that the action of the Security Trust Co. cannot be maintained, and the trust company as trustee of this property or any of it has no right to take this security from these parties, save and except by tendering the amount that is due upon the note. We think it would be unjust and inequitable that this trustee should be permitted to take from this bank these securities without tendering to it the money that is due upon the note. The action, therefore, will be dismissed.

Parker and Hull, JJ., concur.


text:
    PLEADINGS — ERROR—EVIDENCE—SPECIFIC PERFORMANCE.
    [Hamilton (1st) Circuit Court,
    March, 1904.]
    Giffen, Jelke and Swing, JJ.
    Frank J. Schnitzer v. Robert S. Cole.
    ^ 1. Reviewing Court will Consider Pleadings as Presenting Certain Issue I Notwithstanding Failure op Averment, When.
    Where a case is tried upon the theory that the pleadings present an issue which, in reality, is averred as a mere conclusion of law, a court will consider the pleadings as presenting that issue, and allow amendments according to the proof.
    2. Alleged Admission op Dependant Insuppicient to Establish Right to Specific .Performance, When.
    An alleged admission of the defendant in reference to a statement made in a saloon by the plaintiff that he had bought a lot of the defendant upon certain named terms under a parol contract is not sufficient to establish, the defendant’s claim for specific performance against the positive testimony as to the terms of the agreement of both the defendant and his wife, who, with the plaintiff, were the only persons present when the contract was made.
    Appeal from Hamilton cbmmon pleas court.
    Renner & Renner, for plaintiff.
    H. E. Engelhardt and W. W. Bellew, for defendant.
   GIFFEN, J.

The answer of the defendant to the amended petition contains ixo general or other denial of the agreement set up, and the averment that “said verbal agreement was an option upon said lot for two weeks from the said May 12, 1903,” is a mere conclusion of law, and presents no issue of fact. But inasmuch as the parties tried the ease upon the theory that the pleadings presented an issue, whether the contract of sale was ■¡upon consideration that plaintiff pay the purchase money within two weeks from the date of the sale, we will so consider it.

At the time of the alleged sale the only persons present were the plaintiff, the defendant and his wife. The latter two both testify that the plaintiff first offered $225; that the defendant asked $275, and finally offered the lot to plaintiff for $250 if he would pay the same within two weeks from that time, and that' plaintiff accepted. The plaintiff testifies that the time of payment was two or three weeks from date of sale.

The testimony of the witness, Breitfelder, is a recital of a conversation between witness, plaintiff, and defendant, had in a saloon soon after the contract had been made and the receipt for five dollars given, in which plaintiff said that he had bought a lot of defendant and was to have two or three weeks to close up the trade, to which statement the defendant assented. It is not claimed by the plaintiff that the contract was made or its terms altered at this time, but only that the defendant admitted the terms of the contract to be as the plaintiff testifies they were originally understood by him.

Without intending to discredit the witness, Breitfelder, we can only say that such an alleged admission, made under such circumstances, ought not to be considered as outweighing the positive statements of both the defendant and his wife of what took place at the time the contract was made. The receipt offered in evidence is in no sense a memorandum of the agreement, but only evidence of part payment in pursuance of that agreement. The parties elected to make a parol agreement, and the burden of proof being upon the plaintiff, we think he has failed to establish bis claim for specific performance. It will be necessary however for the defendant to amend his answer in conformity with the proof made at the trial, when he will be entitled to a judgment. .

Jelke and Swing, JJ., concur.


text:
    WILLS.
    [Hamilton (1st) Circuit Court,
    1904.]
    Giffen and Jelke, JJ.; Swing, J., absent.
    Charles W. Huber v. Joseph T. Carew et al.
    1. Heirs Take Nothing by Descent Undeb Will Modifying Statute.
    The expressed wish of a testatrix that all oh her property “shall go as the law directs with the following modifications,” is a testamentary disposition of her property, and her heirs take nothing by descent.
    2. Plain and Unambiguous Language of Will Must be Given Effect.
    The language of a will being plain and unambiguous to the effect that it was the intention of the testatrix to divest her child or children of the title in fee in the event that they or either of them died before her husband, it must control, although no good reason appears why a child leaving issue should thus be divested of title.
    J. W. Wolfe and Outcalt & Foraker, for plaintiff.
    Cohen & Mack, for defendants.
   GIFFEN, J.

The only question to be determined in this ease arises upon the pleading and involves a construction of the last will and testament of Maria L. Cary, which is as follows:

“In view of the uncertainty of life, I, Maria L. Cary, do hereby make and publish this my last will and testament, written with my own hand, this twenty-ninth day of April, 1847, revoking all former wills by me made.
“First. It is my will that all my property and estate, real and personal, however owned, and wherever situated, shall go as the law directs, with the following modifications or changes, viz.:
“First. It is my will, in case either of my children, Martha Louisa or Ella 'Woodnut, or the one of which I am now enciente (if it shall survive me) shall die before my husband, Samuel F. Cary, then it is my will that the portion of my estate belonging to such child shall pass in fee to my husband. In case my husband shall survive all my children then it is my will that he shall possess in fee my whole estate.
“Second. If my children, or either of them shall survive my husband, and yet shall all die without issue, before arriving at majority, then it is my will that the proceeds of my estate shall be forever applied to the establishment and support of a female college, to be located at Pleasant Hill, Hamilton county, Ohio, the estate to vest in such trustees as the Cincinnati Presbytery (new school) may designate the whole management and control of such institution to be under the direction of said presbytery.
“In testimony whereof, I have hereunto set my hand, this the twenty-ninth day oi April, one thousand- eight hundred and forty-seven,
(Signed) “MaRia L. Cary.”

It is claimed by the plaintiff, by the terms of this will, no disposition was made of the estate and that he.acquired title by descent. Counsel in their brief state the proposition as follows:

“The testatrix has declined to avail herself of the privilege of devising her real estate which the law gives to every owner, but has elected to let it pass by descent to her heirs, and having permitted it to pass by descent, she then sought to modify or change the course marked out by the statute.”

While it is true that the first clause of the will provides that the estate shall go as the law directs, yet it is qualified by thé words “with the following modifications or changes,” which appear in the succeeding clauses of the will. The testator evidently used the words “shall go as the law directs” as a form of designating the persons to whom she wished her estate to go, and the quantity that each in the first instance should take, and as a basis for the modifications or changes set forth in the second and third items of the will. She adopted the course of descent provided by statute in so far as it coincided with her wishes and then added such modifications as would fully carry them out.

Her expressed will that all her property should go as the law directs, with certain modifications, was a testamentary disposition of thesame, and the heirs took nothing by descent. The words, “shall go as the law directs, with,” etc., are but an abbreviated form made use of by testatrix to express her testamentary intent; a borrowing of the pro.visions of the statute of descent so far as they suited her purpose and beyond that rejecting them. In the case of Crane v. Doty, 1 Ohio St. 279, cited by counsel for plaintiff, there was an attempt made by the testator to disinherit one of his lawful heirs in respect to property not disposed of by his will. In that case, no attempt was made to create any interest or estate in the property involved and hence, not being disposed of by will, it necessarily went according to the statute of descent •and distribution.

Counsel in their reference to this case of Crane v. Doty, supra, beg the whole question when they say: “We have already seen that testatrix has made no express devise of her real estate. If a devise cannot be implied it follows that her real estate was not disposed of by her will. ”

The words “shall go” and “shall pass” are expressly dispositive .and the quantum of the estate so given is clearly defined by the^reference to the law and the limitations in the succeeding sentence and words, '“shall die,” etc., and in fil.

There is nothing here left to implication, all being express.

The case of Gaskin v. Gaskin, 2 Cowp. 657, is not applicable here ■because the whole estate is here-given by the terms of the will to persons other and in proportions different than, provided by law. And the same is to be said of Boisseau v. Aldridges, 32 Va. (5 Leigh) 222.

In this ease, the testator, with the statute before her, proceeds to modify its provisions to meet her desire in the premises, and then adopts the whole as her will.

It is further contended that if the children took any estate under the will, it was in fee simple. But the only purpose of testator under the second clause of the will was to divest the child or children of the title in fee in event that they or either of them died before her husband. No good' reason appears why a child leaving issue should thus be divested ■of title, but the language of the will is plain and unambiguous and must therefore, be given effect. “Uni in verbis nulla ambiguitas, ibi nulla •occurrit voluntatis quaestio.”

We attach no special significance to the word “belonging” in the second paragraph of the will because whether the child took by descent ■or by will, the estate belonged to her subject to the contingency therein provided.

We are of opinion, therefore, that Martha Louisa Huber, the mother •of the plaintiff, took by devise an estate in fee, determinable upon the contingency of her death before that of her father, Samuel F. Gary.

Jelke, J., concurs.


author: JELKE, J.

text:
    EQUITY — DAMAGES—SPECIFIC PERFORMANCE.
    [Hamilton (1st) Circuit Court,
    1904.]
    Giifen, Jelke and Swing, JJ.
    Cincinnati So. Ry. (Tr.) v. James J. Hooker et al.
    Equity may Award Damages in Lieu of Specific Performance — Measure ob Damages is Actual Loss.
    Damages, alone, may be awarded by a court of equity in a proper case, in lieu of specific performance, in order to do full justice between tbe parties and to confer complete relief in one judicial proceeding. Such damages will be limited to saving the parties from loss, but will not include speculative or accidental profits.
    J. R. Sayler, for plaintiff.
    Miller Outcalt and O. P. Cobb, for H. J. Reedy Co.
    J. C. Healy ,and F. J. Darger, for Mrs. Spieber.
   JELKE, J.

Although the proof is conflicting and plaintiff’s case is hardly made by that clear and satisfying measure of proof usually required to move a court of chancery to put forth its decree, we have nevertheless on examination found on the evidence that a contract was entered into between Maria T. Spieber and Walter Kamman, of which contract the H. J. Reedy Company was to have the benefit not by way of transfer or assignment, but through Maria T. Spieber’s agreement that Walter Kamman might sublet the premises to the H. J. Reedy Company.

Maria T. Spieber was cognizant of the fact that it was by virtue of this contract, so made with Kamman, and in reliance upon the same that 'the H. J. Reedy Company at considerable expense moved into the premises and expended money and did the things provided for in said contract.

The lapse of time does not seem to us of sufficient importance to be * made the basis of a rescission of the contract by the counsel of Mrs. Spieker, if there was a contract of lease.

While neither party was particularly diligent in executing the written contract, the H. J. Reedy Company does not appear to have been especially derelict or blameworthy. Both parties seem to have been sparring for trifling advantages in the final execution of the lease and on the subject of delay honors are even.

Mrs. Spieber lost nothing by the delay. She would be in no worse condition if the execution of the lease were decreed to-day, or if it had been actually executed in February, or December, than if it bad been executed on November 17 or on any day between the beginning of negotiations by Mr. Kamman and the final breaking off of the deal by Mr. Dorger.

We feel that a contract was so far entered into and was acted upon to such an extent by the H. J. Reedy Company as to make a court of chancery consider what relief, if any, in equity and good conscience, can be afforded:

The testimony of Walter Kamman that he had no further interest in the lease and that he did not care anything about the H. J. Keedy Company was probably true but must not be given too broad a significance. He probably no longer had any personal beneficial interest in the lease, but he had so acted and had permitted the H. J. Reedy Company to act to such an extent all to the knowledge of Mrs. Spieker as to make it inequitable for him to slip out or for Mrs. Spieker to let him go freed from the duty of acting as a “tertium quid” trustee, or agent, or in a capacity necessary to secure and preserve the rights which had accrued and were dependent upon him.

“That a court of equity has the power, in a proper case, to do full justice and confer complete relief in one judicial proceeding, by giving damages in connection with some other kind of relief, and, even alone, is a familiar doctrine.” See “Damages given in place of Specific Performance,” Section V, Pomeroy, Contracts Sec. 469, p. 533; (ed. of 1897) Secs. 474 to 481, inclusive.

In the case at bar, we think both sides have made too much importance of the intervention of the trustees of the Cincinnati Southern Railroad Company by their suit in condemnation.

The coming along of this third and new interest was entirely without the procurement of either party and was not caused by the delay in executing the written lease. We are not bound to assume that said trustees have agreed to pay a large price, a price exceeding the value of the property, at the time the lease was agreed upon. In proper theory the purchase by condemnation of the property by the trustees of the Cincinnati Southern Railroad Company and the price paid should work a detriment to nobody, or to no interest in the property, but should make everybody whole. Whatever of profit or advantage there may be in it, should be shared somewhat by all parties affected.

On the other hand, the concern of a court of chancery in a case like this is to save parties from harm or loss and the court is not interested in securing any part of a speculative or accidental profit to anybody.

As a court of chancery always strives to conserve all interests which its decree may touch, and inasmuch as the proof requiring specific performance is not coercively strong, and since a lease executed under a decree for specific performance could endure but for a short time and would be immediately subject to the right of eminent domain of the Cincinnati Southern Railroad Company, the court in its effort to do complete justice is moved, in place of specific performance, to award to the H. J. Reedy Company such compensation as will make it whole and in view of all the circumstances will work no hardship to Mrs. Spieker.

We are therefore of the opinion that the H. J. Reedy Company should receive the sum of $2,500 out of the sum agreed to be paid by the trustees of Cincinnati Southern Railroad Company, and that when said sum of $2,500 is so paid, the prayer for specific performance should be denied. In order to carry out this conclusion, the court says that if Mrs. Spieker refuses to pay said sum of $2,500, the prayer for specific performance will be granted; if Mrs. Spieker tender the $2,500 and it be not accepted by the H. J. Reedy Company the prayer for specific performance will be denied. If the $2,500 is paid and accepted and the controversy thus concluded, the costs will be divided.

Gifffen and Swing, JJ., concur.


author: PARKER, J.

text:
    EMINENT DOMAIN — RAILROADS—DAMAGES.
    [Wood (6th) Circuit Court,
    April Term, 1903.]
    Parker and Haynes, JJ.; Hull, J., not sitting.

      Webb C. Hayes et al. (Tr.) v. Toledo Ry. & Term. Co.
    1. Townships Need not be Named in Articles of Incorporation — Their Naming ib Mere Surplusage and Imposes no Limitations.
    The names of townships through which a proposed railway is to he extended are not required to he set forth in the articles of incorporation, under the corporation laws of Ohio; the counties, only, are required to be mentioned, and the naming of townships is mere surplusage. Hence, the fact that certain townships are named in the articles of incorporation does not limit the company to such townships, nor prevent it from extending its road into other townships of counties named in the articles. The rule “expressio unius est exolusio alterius,” has no application to such case.
    2 Hanger from Fire to Buildings, etc., on Remainder a Proper Element of Damages in Appropriation Proceeding.
    Danger from fire to buildings, fences, timber, etc., situate on the remaining . portion of a tract of land appropriated by a railroad company, is, in so far as. the value of such property is depreciated thereby, a proper element of damages to be considered by the jury in awarding compensation, notwithstanding the liability of the company for losses resulting therefrom; and a charge which, when fairly construed, eliminates this element from the jury’s consideration, is improper. But the value of existing crops or crops that may be raised upon the land, or of other property that may be placed- thereon, and be endangered by fire, cannot be added to the amount to be awarded as damages.
    ERROR to Wood common pleas court.
    Birchard A. Hayes, for plaintiffs in error:
    The description of the property was fatally defective. Secs. 5095, €416 Rev. Stat.; Cox v. Freedley, 33 Pa. St. 124 [75 Am. Dec. 584]; Reed v. Shenck, 3 Dev. Law (N. C.) 65; Mann v. Taylor, 4 Jones Law (N. C.) 272 [69 Am. Dee. 750]; Gwynne v. Jones, 3 Circ. Dec. 148 (5 R. 298).
    Although Sec. 3237 Rev. Stat. does not require the townships through which a railroad is to pass to be named, but only the counties, nevertheless having named the townships, as well as the counties, the right of eminent domain must be confined to property in the townships thus formally named. “Expressio unius est exelusio alterius.” Lake Shore & M. S. Ry. v. Railway, 30 Ohio St. 604, 614; Toledo & W. Ry. v. Daniels, 16 Ohio St. 390, 394; Brieker v. Brieker, 11 Ohio St. 240, 246; Wilkins v. Insurance Co. 30 Ohio St. 317, 338 [27 Am. Rep. 455].

      The right of eminent domain must be strictly construed. Platt y. Pennsylvania Co. 43 Ohio St. 228, 244 [1 N. E. Rep. 420]; Atlantic & O. Ry. v. Sullivant, 5 Ohio St. 276; Sec. 6416 Rev. Stat.; Valley Ry. v. Bohm, 34 Ohio St. 114.
    When a part of a tract is taken for railroad purposes, danger from fire to buildings, fences, timber or crops upon the remainder, in so far as it depreciates the value of the property, may properly be considered. It is immaterial that the railroad company is made absolutely liable for its fires. Lewis, Eminent Domain (4 ed.) Sec. 497; Bangor & P. Ry. v. McComb, 60 Me. 290; Adden v. Railway, 55 N. H. 413 [20 Am. Rep. 220] ; Pierce v. Railway, 105 Mass. 199.
    J. O. Troup, F. A. Baldwin and King & Tracy, for defendant in error.

      Affirmed, no report, Toledo Ry. & Term. Co. v. Hayes, 49 Bull. 92; 70 O. S. 425.

   PARKER, J.

(Orally.)

This case is brought to obtain a reversal of a judgment of the probate court of Wood county entered in a proceeding for the appropriation of private property for the railway company, and also for a reversal of a judgment of the court of common pleas affirming the aforesaid judgment of the probate court. The proceeding in the probate court was by the railway company as plaintiff against a great many defendants, including these plaintiffs in error for the appropriation of various tracts of land owned by the different defendants respectively. The part of the proceeding in which the plaintiffs in error were and are interested is that with respect to the parcel described in the petition as “parcel No. 8.” The. preliminary hearing was had and the ease afterwards went to trial upon an inquiry to determine the amount of compensation and damages to be awarded, which resulted in a verdict for plaintiffs in error for $250 compensation for the part taken, and $100 damages to the remainder of the tract.

It is contended on behalf of the, plaintiffs in error that there is error in this judgment and the proceedings of the probate court in this: That the petition (and perhaps the bill of exceptions which was taken upon the preliminary hearing) discloses that the plaintiff in that court, the railway company, was not authorized by law to proceed to appropriate the land in question, which is located in Lake township, Wood county, Ohio. That in this proceeding they were exceeding the authority vested in them by the articles of incorporation issued to them by the state; that their act, in other words, was ultra lAres; and this contention is based upon the fact that the articles of incorporation set forth that the termini and route of tbe railway which this company is authorized to construct and operate are as follows:

“The northerly terminus, being a point at or near where La Piere street, in the city of Toledo, Lucas county, Ohio, intersects the Maumee river, and the southerly terminus, being a point at or near where the northerly boundary line of the town of Maumee in said county, intersects said Maumee river. Said railway extending from its northerly teminus in a westerly and southerly direction to the northerly boundary line of the city of Toledo, and thence in a westerly and southerly direction through Washington and Adams townships and the town of Maumee in said Lucas county, Ohio, to its southerly terminus; thence in an easterly direction across the Maumee river, and thence northerly through the townships of Perrysburg and Eoss, in Wood county, Ohio, and through Oregon township and the city of Toledo, in said Lucas county, Ohio; thence in a westerly direction across said Maumee river to the northerly terminus. ’ ’

It will be observed that the course marked out for this railway in Wood county is through the townships of Perrysburg and Eoss only, that is to say, no other townships are mentioned, whereas the lands in question of the plaintiff in error are in Lake township in said county.

The statute does not require that the townships through which a railway is to be extended shall be set forth in the articles of incorporation, but it does require that the counties through which the railway-is to be extended shall be mentioned. Counsel for plaintiffs in error urge that since the railway company has seen fit to have these articles of incorporation so framed as to describe the townships through which it is to pass, it is thereby limited and circumscribed with respect to the county in which such townships are situate; that is to say, it may not extend its railway to any point in such county outside of the townships mentioned; that the rule “expressio unius est exclusio qlterius” should prevail and be applied. But we are of the opinion that this rule has no application to a case of this character, and that the mention of the townships being unnecessary, not being required by statute, and not serving, as we can see, any good or useful or proper purpose, should be treated as surplusage merely — wholly immaterial and harmless.

We come now to the next proposition urged against this judgment by counsel for plaintiffs in error, and this goes directly to the merits of the controversy. It is urged that the court erred in its charge to the jury with respect to the rules to be applied in the allowance of damages. The charge of the court is very brief, and upon the question in controversy there is but a single paragraph. I need not read the whole charge, but will read this paragraph:

“The jury are instructed that the law of Ohio provides that a railroad company must pay to the person whose property is destroyed by fire caused by the operation of a railroad, the damage thereby sustained, and in determining whether or not the remainder of the lands are rendered less valuable by the construction and operation of the proposed railroad, the jury have no right to include as an element, the value of any. property liable to be destroyed by fire by the operation of the railroad.”

There is nothing else in the charge referring to that subject. The general rule governing what may be taken into consideration with respect to possible fires communicated from locomotives or otherwise in the operation of a railroad — what may be taken into consideration as a diminution of the value of the remaining property — is stated in 2 Lewis, Em. Dom. (4 ed.) Sec. 497, as follows:

' “When a part of a tract is taken for railroad purposes, danger from fire to buildings, fences, timber or cropsi upon the remainder, in so far as it depreciates the value of the property, may properly be considered. It is immaterial that the railroad company is made absolutely liable for all losses by fire which originate from the operation of the road, whether’ they result from negligence or otherwise.”

In support of that doctrine, various authorities are cited to us, and counsel for defendant in error concede that the rule thus stated is the proper and true rule to be applied in Ohio; but at the same time they insist that there is nothing in these instructions that are obnoxious to that rule; that what is intended by the rule stated by the trial judge, is not that the jury may not consider the diminution in value of the land, or of the improvements that constitute a part of the land, but that they are not to take into consideration crops upon the land or 'that may be raised upon the land, or other property that may be put upon the land, that may be destroyed by fire, in such manner as to add the value or a part of the value of such property to the amount to be returned as damages.

If the charge had clearly stated the proposition which tney say it was intended to state, we think that no fault could be found with it; but we are of the opinion that it is not clearly nor fairly open to that construction; that under all the circumstances of the case, it probably did not receive that construction at the hands of a jury. The court starts out by calling the attention of the jury to the law of Ohio which provides that a railroad company must pay to a person whose property is destroyed by fire caused by the operation of a railroad the damages thereby sustained; then follows up this instruction with the remainder of the paragraph quoted, which it seems to us must have been understood by the jury as intended to mean and as meaning that because this remedy was given therefore they were not to take into consideration at all the damage resulting; that is, the diminution of the value of the land in consequence of the danger of damages resulting to the premises by fire 'communicated from the railroad. I will read again that portion of his charge:

* * * “ and in determining whether or not. the remainder of the iands are rendered less valuable by the construction and operation of the proposed railroad, the jury have no right to include as an element, the value of any property liable to be destroyed by fire by the operation of the railroad. ’ ’

To be sure the court does not say that they aré not to include as an element the diminution in value of the remainder in consequence of the liability to destruction of the property upon the premises, but it-seems to-us that it must have been so understood by the jury; that if it does not state that proposition distinctly it is fairly open to that construction, and, is so misleading under all the circumstances that it should be held to be erroneous. The jury are told that they are not to include as an element any property liable to be destroyed by fire. That is very broad. That would include not only crops, but buildings, permanent structures upon the premises; those upon the premises at the time or that might afterward be put upon the premises by the proprietor for their proper improvement. If the land was suitable, for instance, to be used as town lots, to be improved as town property, it would amount to saying that the jury have no right to include as an element, the reduced value of the buildings and structures then upon the premises, or that may be put upon the premises due to their liability to destruction by fire by the operation of a railroad.

Entertaining this view of what the language here means or what it must have been understood by the jury to mean, we hold that the giving of this charge was error, and that it was material and prejudicial error, and on this ground, the judgment of the probate court, and the judgment of affirmance of the court of common pleas, will be reversed, and the cause will be remanded for retrial.

Haynes, J., concurs.