author: JONES, O, B., J. Gorman, J.,

text:
    AUTOMOBILES — NEGLIGENCE
    [Hamilton (1st) Court of Appeals,
    July 6, 1916.]
    Jones, Jones and Gorman, JJ.
    Zumstein Taxicab Co. v. Dorothy Rummel.
    Driving on Left Side of Standing Street Car at Crossing, Right Side Obstructed.
    While the negligence of a driver of a motorcycle cannot he imputed to his guest riding on the tandem seat, yet no recovery can he had against the owner of a taxicab, for injuries caused by a collision between the motorcycle and a taxicab at a street intersection where the only negligence of the latter consisted in its being driven around a standing street car on the left side, the right side of the street being obstructed by a voting booth on the corner.
    ERROR.

      Clore, Dickerson & Clayton, for plaintiff in error.

      Jones & Hoover, G. A. Bummel, for defendant in error.
   JONES, O, B., J.

This ease grows out of a collision between a motor cycle and a taxicab, on Reading road opposite the end of East Ridgeway avenue. It occurred about 8 o’clock on the evening of July 24, 1913. The plaintiff was occupying the rear or tandem seat of the motorcycle as the guest of its driver. The occupants of the motorcycle were taking .a pleasure trip and were proceeding southwardly on Beading road. The operator testified that for some distance north of East Ridgeway avenue he ran upon the dummy-track in the center of the street between the two tracks of the street railway, until just before he reached the north line of East Ridgeway avenue, when he made a detour to the east line of Beading road with the intention of turning into East Ridge-way avenue to stop and blow up his tire. At about the continuation of the south line of East Ridgeway avenue near the east curb of Reading road stood a closed voting booth, which had been placed there by the election officers, and with its north end directly in line with the north end of this voting booth stood a northbound street car upon the east track of Reading road. The operator of the motorcycle after turning toward East Ridgeway reached almost the east line of Reading road when he changed his mind and made a loop westward passing north of the voting booth and street car, to proceed to the west side of Reading road. A taxicab of the defendant company had been traveling along the street car track in Reading road behind the street car and being unable to pass to the right when the car stopped, because of the obstruction caused by the voting booth, passed to the left of the street car along the center of Reading road, and as it reached a point about opposite the south side of East Ridge-way avenue and the north end of the street car it collided with the motorcycle.

As a result of this collision plaintiff was cut upon the foot and received what she claims to be a permanent injury. Plaintiff recovered a verdict and judgment below, and proceedings in error are prosecuted here for its reversal.

The record shows but little dispute in the evidence as to the respective positions of the vehicles upon the street. The plaintiff herself testified, contrary to the operator of the motorcycle, that for some distance north of East Ridgeway avenue the motorcycle traveled on the east side of the street not far from the curb; but she agreed with the operator of the motorcycle that just before reaching the south line of East Ridgeway avenue they turned westwardly to the place where the accident occurred.

A portion of the traffic ordinance of the city of Cincinnati was introduced in evidence, being in part as follows:

‘ ‘ Every person using any vehicle on any street shall operate, drive or ride such vehicle on the portion to the right of the center of the street, except the right side of the street is in such condition as to be impassable. A vehicle meeting another shall pass on th.e right. * # * All vehicles when overtaking street cars or interurban cars shall pass to the right and not to the left, when the car tracks occupy the middle of the street; provided that street cars may be passed on the left when the space to the right is occupied and.the space to the left is reasonably clear.”

A careful consideration of the evidence shows that the driver of the taxicab operated his vehicle in accordance with the rules laid down in this traffic ordinance, while the operator of the motorcycle violated these provisions in that his vehicle was upon the east side of Reading road, being the left side to him, where under the traffic rules it should have been upon the west side which was to him the right side of the road. And in undertaking to go from the east to the west side of Reading road, treating East Ridgeway avenue (which was not a continuous line across Reading road) as an intersection, he should have kept upon the right of the center line of East Ridgeway avenue; and had he done so he would have been a sufficient distance from the voting booth and the street car to have seen the taxicab and to have permitted its driver to see him, and thus the collision would have been averted.

While under the law of Ohio the negligence of the operator of the motorcycle can not be imputed to the plaintiff, who was his guest,, still the injury having been caused in our view purely by his negligence and not by any negligence on the part of the driver of the taxicab, the defendant can not be held liable.

In the general charge the court, after stating the ordinary care required of all persons using the street, both as pedestrians and with all binds of vehicles, used the following language:

“Now when an automobile is upon the street, under the traffic ordinance it has to follow a certain line of conduct. It must drive upon the righthand side of the street. It must stop when street ears stop. If street ears stop it has the right to pass to the right of the street car and to the left of the driver of the automobile. In passing the street ear it must exercise' ordinary care under the circumstances.”

In this language the court undertook to lay down the requirements of the traffic ordinance so far as they apply to an automobile. Nothing is said in the charge as to the application of the requirements of the traffic ordinance to the operation of a motorcycle, although they apply equally to automobiles and' motorcycles.

It will be observed, from the words quoted in the charge that the court inadvertently failed to state the terms of the traffic ordinance applicable to the movement of the taxicab just prior to the accident. It lays down the rule that the taxicab “must stop when the street ear stops.” There is nothing in the traffic ordinance introduced in evidence, or in the record, to show that requirement. It also states: “if street ears stop it has a right to pass to the right of the street car and to the left ot fhe driver of the automobile.” It is not clear just what is meant by this language. But the court omits in its charge to refer to the provision of the ordinance “that street cars may be passed on the left -when the space to the right is occupied and the space to the left is reasonably clear. ’ ’ The record shows that such was the condition at the time under consideration ; the space to the right of the street ear was occupied by the voting booth, and the space to the left of the street ear was reasonably clear. It was important that this condition should be referred to in the general charge and defendant’s rights thereunder stated. This part of the charge therefore did not clearly and properly state the law to the jury, but tended rather to confuse and mislead them, and constituted error to the prejudice of the defendant.

At the close of the general charge counsel for defendant called the attention of the court to the rights of the parties were there was an obstruction upon the right hand side of the ro.ad and asked for a charge upon that point. The court, however, did not amend its charge or give any further charge as requested; to which counsel for defendant excepted. In this we find that the court committed error to the prejudice of the defendant below.

For the reasons stated the judgment is reversed and the cause is remanded for further proceedings.

Jones, E. H., J., concurs.

Gorman, J.,

concurs.

For the reason that the trial court in its charge to the jury apparently said in failing to properly state the rule of the road with reference to the taxicab, and also, in failing to charge the jury properly with reference to the rule of the road applicable to the motorcycle, which errors in the charge were prejudicial to the plaintiff in error, I concur with my associates in holding that the judgment should be reversed and the cause remanded.

But T do not concur in the conclusion of my associates that plaintiffs injuries were due solely to the negligence of the operator of the motorcycle. I think the record discloses that there was negligence on the part of the driver of the taxicab and also negligence on the part of the operator of the motorcycle, both of which negligences proximately conduced to cause the plaintiff’s injuries, and under such circumstances plaintiff would' be entitled to recover if it were not for error in the charge of the court.

Giving the evidence that aspect most favorable to the plaintiff in error, it appears to me that the injuries of the defendant in error were the result of the concurrent negligence of the driver of the taxicab and the operator of the motorcycle; and since the negligence of the motorcycle can not be imputed to the defendant in error, his negligence would not be a bar to her right to recover.


source: Caselaw Access Project

author: GORMAN, J.

license: Public Domain

text:
    LANDLORD AND TENANT.
    [Hamilton (1st) Court of Appeals,
    January 3, 1916.]
    Jones, Jones an’d Gorman, JJ.
    Joseph L. Roberts, et al. v. Jennie Fulton.
    Liability of Landlord for Injury to Tenant can not be Based on Covenant to make Repairs.
    The fact that a landlord has covenanted to make needed repairs on property leased as an entirety does not render him liable either to the lessee or to a sub-lessee on account of injuries received through failure to make such repairs.
    Error.

      E. 8. Aston and Clyde P. Johnson, for plaintiffs in error.

      Louis P. Pink, for defendant in error.
   GORMAN, J.

The defendant in error, Jennie Fulton, recovered, a judgment against the plaintiffs in error in the court of common pleas. She was a tenant in the premises known as No. 698 West Fifth street, occupying two rooms on the second floor thereof. She rented her rooms from one James P. Bolger, and Bolger rented the entire premises from plaintiffs in error at a rental of $70 a month. Bolger and his father before him had rented the entire building during many years prior to the time that the cause of action arose. There was no written lease between Bolger and the plaintiffs in error, nor was there a written lease between Jennie Fulton and Bolger. By verbal agreement between Bolger and plaintiffs in error, for whom Joseph L. Roberts acted as agent, they were to make certain repairs on the building, such as repairing the roof, the floors and the woodwork generally in the building, but they were to do no papering or whitewashing; those repairs were to be made by Bolger.

There was a hallway running along the two rooms occupied by defendant in error, and from this hallway there was an alcove, or small hall or vestibule, from which a door led into each of Jennie Fulton’s rooms. The only means of access to her rooms was through the large hallway into the small hallway or vestibule and tbence into her rooms, the small hall or vestibule separating the two rooms. They were evidently so arranged that the two rooms might be rented out separately.

On the night of October 31, 1912, about three months after Jennie Fulton became a tenant in these two rooms, she had occasion to leave her rooms far the purpose of getting water from the hydrant at the end of the large hall on the floor on which her rooms were situated. As she passed out of one of her rooms into the small vestibule and just before she reached the large hall she broke through the floor, on account of the want of repair of one of the boards in the floor, and a nail protruding between the broken boards ran into her heel and resulted in serious injuries to her. She was confined to the hospital and in her house for quite a long time, and at the time of the trial the injuries were still manifest and it was probable that she was permanently injured.

It is claimed by plaintiffs in error that no liability rests upon them upon the above statement of facts, being in substance the facts established in the trial of this ease, and that therefore the judgment in favor of the plaintiff below should be set aside and' held for naught.

This court is of opinion that there was no legal liability resting upon plaintiffs in error to the defendant in error,' and that she was not entitled to recover, upon the state of facts shown by the record in this case.

We think this case is controlled by the ease of Burdick v. Cheadle, 26 Ohio St. 393 [20 Am. Rep. 767]. Mrs. Fulton was not a tenant of Roberts, she did not rent from him, and there was no privity of estate between her and the plaintiffs in error. She was a tenant of Rolger, and for any injuries which she received because of the neglect to keep the premises in repair she must look to Bolger, and not to Roberts, for damages or compensation. The case of Burdick v. Cheadle has not been overruled by the Supreme Court and appears to be the law of this state, whatever may be the rule laid down in other states. In that case it was held in the syllabus that:

1 ‘ The defendant, being the owner of a lot of ground, erected thereon a storehouse, and afterward leased the storeroom and agreed with the lessee to construct therein cornices, shelvings and fixtures, in a secure, safe, convenient and proper manner for the sale of dry goods and groceries, and to keep the premises in good order. The fixtures put up under the agreement were unsafe and insecure from the want of sufficient fastening to the walls of the building — all of which was known to defendant, who, on request of the lessee, refused and neglected to repair. Afterward, and while the room and fixtures were in the possession of the lessee, the shelvings fell and injured the plaintiff, who was, at the time, in the storeroom as a customer of the lessee. Held: The facts stated do not constitute a cause of action against the defendant and in favor of the plaintiff.”

To the same effect is the rule laid down in the case of Shindelbeck v. Moon, 32 Ohio St. 264 [30 Am. Rep. 584].

These cases were approved by the Supreme Court in the case of Stackhouse v. Close, 83 Ohio St. 339 [94 N. E. Rep. 746]; the court, Johnson, J., on page 351, uses this language:

''A lessor of a building is not liable to the lessee or others lawfully on the premises, for its condition, in the absence of actual or constructive concealment, or of any agreement, or of the violation of a duty imposed by statute. Shinkle v. Birney, 68 Ohio St. 328; Burdick v. Cheadle, 26 Ohio St. 393; Shindelbeck v. Moon, 32 Ohio St. 267.”

The circuit court of this county, the predecessor of this court, in the case of Schradski v. Butler, 22 Dec. 701 (9 O. L. R. 127), decided April 26, 1913, affirmed the judgment of the court of common pleas, upon the authority of the opinion announced by the trial court on a motion for new trial.

But it is contended by counsel for defendant in error that the ease of Stackhouse v. Close, supra, holds that the owner of premises is liable in a ease similar to the one at bar. The case of Stackhouse v. Close is one in which Close, the owner, had leased the entire premises to the United States Coaster Construction Company, which company had sublet part of the premises for lodge purposes, and the plaintiff in the case, Mrs. Stackhouse, was injured in an elevator while going to the lodge in the building.

We think that case can be distinguished from the ease at bar in that. Mrs. Stackhouse was a member of the public, a third person, while Mrs. Fulton was not a member of the general public, but was holding under Bolger as a sub-lessee. Furthermore, in that ease it was held that because the landlord reserved the control of the elevator and the right to make all repairs, and stipulated that no alterations or repairs could be made by the lessee without the consent of the owner, the owner thereby rendered himself liable jointly with the tenant or lessee, under the provisions of Sec. 4238-1 B. S., which provides that:

“ — It shall be unlawful for any person, society, firm, agent, representative of any private or corporate authority or society, or any committee, commission or board acting under any authority whatsoever, to erect, or cause to be erected * # # in the state of Ohio any structure, room or place where persons are invited, expected or permitted to assemble, or for the purpose of entertainment, judgment, amusement, instruction, betterment, treatment or care, or to make any addition to or alteration therein which shall in construction, arrangement or means of egress be dangerous to the health or lives of persons so assembled — ”

and the Supreme Court held that the owner, by requiring no alterations, changes or repairs to be made without his consent or supervision, thereby retained such control over the building, and especially the elevator, as rendered him liable to third persons who had occasion to resort to the building for any purposes whatsoever.

Tn the case of Burdick v. Cheadle, supra, at page 397, the court says:

4 ‘ The general rule of law undoubtedly is, that persons who claim damages on the account that they were invited into a dangerous place, in which they received injuries, must seek their remedy against the person who invited them. There is nothing in the relation of landlord and tenant which changes this rule. ’ ’

Applying this rule to Mrs. Fulton, under the facts disclosed by the record, it is apparent that she was a tenant of Bolger, in the building, not through any arrangement or agreement with the plaintiffs in error; she was invited and permitted to be there solely as the tenant of Bolger, and for any damages which she may claim on account of injuries received in the building she must seek for a remedy against the person who invited here there — Bolger.

It- is true that the Supreme Court in this case of Burdick v. Cheadle has applied a different rule to third persons, the public generally, for it provides that :

“If they (the premises) be unsafe or unfit, it is the duty of the tenant to'make them safe or to fit them for the intended use: and the landlord may reasonably expect that the tenant will do so. ’ ’

And on page 396 the court says:

“But in case a landlord undertakes with his tenant to keep the premises in repair, having thus reserved the control to the extent necessary for making repairs, his duty to the public in relation to the property is not affected by the lease, and he remains responsible, under the doctrine of the above maxim, for defects arising from the want of repairs during the continuance of the lease.”

The maxim above referred to is the well known one: “sic i itere tuo ut alier.um non laedas.” But this maxim applies, in the case of landlord and tenant, to third persons who are strangers and not in the premises on invitation of the landlord.

In Jones, Land. & Ten. Sec. 592, this principle is stated:

“It may be stated as a general rule that a landlord, who has covenanted to repair, is not liable in tort for personal injuries resulting from the want of repair,” citing numerous eases in support thereof, among others Hanson v. Cruse, 155 Ind. 176, and then proceeds: ‘ ‘ Such injuries are too remote to be recovered as damages for the breach of contract, and the duties arising from the relation of landlord and tenant are not increased by such a contract in respect to the duty of the landlord to provide for the personal safety of the tenant.”

And again, in the same section, the author says:

‘ ‘ Ordinary damages for breach of a general covenant to keep the premises in repair are the expenses of repair and the loss of the premises while the party contracting was in default.”

Tiffany, Land. & Ten. Sec. 87, p. 592 (10), lays down this hule:

“A question of difficulty has arisen in connection with a landlord’s covenant to repair, as to whether the tenant can recover, as against the landlord, for an injury to his person or to his property on the premises, which would not have occurred had the landlord complied with his. covenant. Such injuries resulting not directly from a breach of the contract but from physical conditions existing apart-from the contract which the contract merely undertook to eliminate can not well be regarded as a proximate result of the breach of the contract within the contemplation of the parties at the time of the making thereof. To allow a recovery for such injuries is to allow a recovery as for tort on account of a breach of contract. As has been remarked, there is no more reason for allowing such a recovery against a landlord than against any other person, a carpenter or contractor, for instance, who fails to oarry out his contract to repair the premises.” Citing Tuttle v. Manufacturing Co. 145 Mass. 169 [13 N. E. Rep. 465].

There will be found cases which hold that a landlord who has leased the entire premises and has covenanted to make repairs is liable to third persons — the public — but these authorities are few and far between, and the great weight of authority holds the contrary rule.

In the case of Schradski v. Butler, Butler rented the premises to the sister of Mrs. Schradski, who was a member of the household. Butler promised to repair, failed to do so, and as a result of the failure, Mrs. Schradski was very severely injured. The common pleas court held in that case that the landlord, Butler, was not liable to Mrs. Schradski for the personal injuries sustained.

Without multiplying the authorities, we think that the law of this state is well settled that the owner of propery is not liable where he leased the entire premises to a tenant and agrees to make repairs upon the' premises, either to the tenant or subtenants or sub-lessees of the tenant. The mere fact that the landlord agrees to make repairs, does not put him in control of the premises. It is true he would have the right to resort to the premises for the purpose of making repairs, but that fact does not give him control of the premises any more than he would have control of the premises because he would have a right to resort to the premises for the collection of rent, inspection of the same, or any other lawful purposes. Bolger, in this case, was in entire control of the premises, and Bolger himself could not recover for injuries he might sustain by reason of the defect in the premises resulting from failure of the owner to keep the premises in repair under his agreement, and surely his subtenant or sub-lessee, Mrs. Fulton, would have no higher or better right than her immediate landlord — Bolger.

If the law were not so well settled in this state on this question it might be instructive and useful to consider the decisions in other states. But the court is of the opinion that this ease, in all its phases, is controlled by the ease of Burdick v. Cheadle, supra, and other cases cited.

For the reasons stated, the judgment below is reversed and the cause remanded for further proceedings.

Jones, E. H. and Jones, O. B., JJ., concur.


text:
    COURTS — PARTNERSHIP—PRINCIPAL AND AGENT.
    [Hamilton (1st) Court of Appeals,
    February 14, 1916.]
    Jones, Jones and Gorman, JJ.
    William F. Pagel v. Edwin K. Creasy et al.
    1. Judge Having Final Hearing in Common Pleas in County with Two or More Judges may Correct Errors of Law Previously Made.
    In counties in which the common pleas court is composed of two or more judges, a ruling by any one of the judges on an interlocutory matter is the ruling of the court, and the judge who has the case on final hearing' is at liberty to correct errors of law previously made, whether made by himself or by another judge.
    2. Contract with Sales Agent to Sell Designated Product at Fixed Price Delivery to be Delayed, Each to Share Equally in Profits and Losses Occasioned thereby Against Public Policy.
    A contract entered into by a sales agent of a sugar refining company, whereby he was to sell to the parties of the other part one thousand barrels of sugar at the then market price, the sugar to be resold by said parties upon delivery, which was to be delayed as long as possible, and the profits or losses from the purchase and sale to be then equally divided between the sales agent and the parties of the other part, is void as against public policy, and demurrer lies against an action by the sales agent to recover the share claimed by him of said profits.
    3. Partner's Contract to Share in Profits of Firm Business without Assent of Other Partner not Enforcible.
    A contract entered into by P with one of two partners in business, whereby without the assent of the other partner, P was to be permitted to share in the profits of the said partnership, is not enforcible.
    ERROR.

      Sherman T. McPherson, for plaintiff in error.

      Mackoy <& Mackoy, for defendants in error.
   GORMAN, J.

The plaintiff in error brought an action to recover from defendant in error the sum of $822.62, with interest from November 1, 1918, being the amount of one-half the profits which the plaintiff claimed resulted to the defendants upon the purchase and sale of one thousand barrels of sugar.

In his petition the plaintiff claimed that he entered into a contract with the defendants whereby he sold to them one thousand barrels of sugar from the Warner Sugar Refining Company, at the then market price of $4.20 a hundred pounds, New York basis, the delivery of the sugar to be held off as long as possible, and that the defendants agreed with him to sell the sugar bought as aforesaid, and that the profits or losses derived from the purchase and sale of said sugar as aforesaid should be equally divided between said defendants and the plaintiff, William F. Pagel. He further says that in pursuance of the agreement there was shipped to said defendants one thousand barrels of sugar at various times during the summer of 1913, and that said sugar was sold by the defendants at a total profit of $1,645.24, one-half of which, $822.62, he claims under the contract belonging to him.

Defendant by answer set up that the plaintiff, Pagel, was the selling agent of the Warner Sugar Refining Company at the time the sale of the thousand barrels of sugar was made to them; that they did buy from the Warner Sugar Refining Com-. patiy through the plaintiff a thousand barrels of sugar at the then market price of $4.20 per hundred pounds, deliveries to be delayed as long as possible; that said sugar was sold to them in the usual course of business. The defendants deny that the profits on the said thousand barrels of sugar was $1,-645.24. And further answering the defendants state that if they entered into an agreement on May 2, 1913, with the plaintiff for the purchase by plaintiff and defendants .of the said thousand barrels of sugar from said Warner Sugar Befining Company, or agreed or had agreed on or about that date with the plaintiff that the defendants should sell the said sugar so purchased from the said company and that the profits and losses derived from the sale thereof should be equally divided between the plaintiff and defendants as set forth in the petition, said agreement and each and every part thereof was and would have been contrary to public policy, illegal, void and of no binding force or effect, because on said date and for some time previous thereto and thereafter plaintiff was a sales agent in the city of Cincinnati and state of Ohio for said Warner Sugar Befining Company, selling sugar for his said principal on a commission basis for each barrel sold; and representing himself to be the sales agent of the said company, and the defendants believing him to be such, plaintiff had solicited an order for and on behalf of said principal for said sugar and defendants bought the said sugar from the said company through the plaintiff acting as its said sales agent, but said purchase was made solely for the account of defendants, and plaintiff had no interest whatever therein as purchaser or otherwise with defendants, but that plaintiff as said sales agent was paid and received the usual commission from his said principal, the Warner Sugar Befining Company; that plaintiff was not authorized, empowered or permitted to become a purchaser in whole or in part of said sugar, and if said plaintiff had acquired or had any interest in the purchase or sale of said sugar except as sales agent of the Warner Sugar Befining Company it was without the knowledge or consent of his principal or these defendants. Defendants therefore asked to be dismissed with their costs.

A demurrer was filed to the second defense, which set up the agency of the plaintiff and that he was not authorized to acquire an interest in the purchase of said sugar. This demurrer coming on to be heard was sustained by one of the judges of the common pleas court, upon the theory that there was no double agency in the case.

Thereafter an amended answer was filed in substance setting up the same defense.

When the case was called for trial plaintiff obtained leave to file an amended petition, setting out practically the same state of facts as in the petition, but alleging that the agreement as to profits was as follows:

Plaintiff alleged “that the said defendants, Edwin K. Creasy and Llewellyn Y. Creasy, and plaintiff should divide equally the profits to b.e made by the advance in the price of sugar in the market, or if the same declined the losses should be divided equally between them, the gain or loss to be based on the price of said sugar on the date of delivery of the same to the said defendants. ’ ’

This part of the amended petition differed from the petition in that in the petition it was claimed that the plaintiff and the defendants were to divide the losses or profits which might result from the' resale of th'e sugar without reference to the market price.

A second amended answer was filed to this amended petition, which in substance set up the facts set out in the original answer.

It appears from the statements of counsel that when this case was called for trial, the trial judge was of the opinion that the demurrer filed to the second defense of the answer should have been overruled, and after a conference with the judge who sustained the demurrer the trial court overruled the demurrer. The record fails to show that any demurrer was filed to the second amended answer or to the amended answer, and the record also fails to disclose that an entry was made on the day that it is claimed that the demurrer was overruled by the trial court.

The cause was heard on March 25, 1915, and upon that day it is claimed that the trial judge overruled plaintiff’s demurrer to the second defense of the .answer. Long after the case was heard and the verdict and judgment rendered in favor of the defendants, to-wit, on May 11, 1915, an entry appears upon the journal setting forth that the demurrer of the plaintiff to the second defense of defendant’s amended answer was argued and overruled, to which ruling of the court the plaintiff by his counsel excepted. The minutes state, 619, “Entry nunc pro tunc,” but the record fails to show on what day this entry should have been made. It was made on May 11, but as “nunc pro tunc” and there is an absence in the record of the date when the ruling was really made by the court.

• The plaintiff in error complains that the trial judge should not have overruled the demurrer to the amended petition, but should have abided by the ruling of the former judge who sustained the demurrer to the second defense of the answer.

"We are of the opinion that the plaintiff in error was not prejudiced by the ruling of the trial judge in this matter. When it is considered that the court of common pleas of Hamilton county is one court, notwithstanding the different individuals who sit upon the bench of that court, and when it is further considered that it is not material what particular judge rules upon an interlocutory matter, it is a ruling of the common pleas court, we are of the opinion that the individual judge who tries a ease has a right at the time the final judgment is rendered to correct any errors of law that may have been made in any interlocutory orders or rulings, whether they have been made by himself or by any other judge of the common pleas court.

The right so to rule seems to have been established in several cases heard in the common pleas court, affirmed by the circuit court and by the Supreme Court.

The main question however, is whether or not the plaintiff had a right to recover under the facts shown in this case. He was an agent of the Warner Sugar Refining Company. The evidence show's that he was the sole selling agent in Cincinnati for that company; that no other broker or agent could place an order with the Warner Sugar Refining Company for the sale of any sugar in the Cincinnati territory except the plaintiff. The evidence further discloses that his principal, the Warner Sugar Refining Company, had no knowledge of the alleged agreement made by the plaintiff with the defendants to divide the profits and losses arising from the purchase and sale of the thousand barrels of sugar. The record further discloses that the plaintiff received his regular commission from his principal for the sale of the thousand barrels of sugar to the defendants.

We think the law is well settled in the state that an agent employed to sell, can not purchase for himself either directly or indirectly, nor can he have any interest in the subject-matter of the sale without his principal’s consent. The law does not suffer one who is an agent of a vendor to have any interest in a contract of sale, or to earn any profit thereby outside of his regular compensation, unless it is done with the knowledge and consent of both principals. This rule of law we think is clearly stated in the case of Bell v. McConnell, 37 Ohio St. 396 [41 Am. Rep. 528]; and Peckham Iron Co. v. Harper, 41 Ohio St. 100.

Mr. Pagel was a sales agent in Cincinnati of the Warner Sugar Refining Company. Whether he was, or whether he was not, he was a broker and undertook to sell the sugar of the Warner Sugar Refining Company. He could not enter into any engagements which would subject him to a temptation to fail to serve his principal to his utmost capacity.

In the case above cited, Bell v. McConnell, the court, among other things, said:

“This case presents the single question. Can a real estate broker, who assumed to aid both contracting parties in making an exchange of real estate, recover compensation for his services from either, upon an express promise to pay, in a case where each principal had full knowledge of and assented to the double employment?”

The court proceeds to say:

“It has been decided (Rupp v. Sampson, 16 Gray 398, and Siegel v. Gould, 7 Lans. 177), and is not doubted, that such broker may recover from both or either where his employment was merely to bring the parties together; and it is equally clear, both upon principle and authority, that in ease of such double employment he can recover from neither, where his employment by either is concealed from or not assented to by the other. Several reasons may be given for this rule. In law, as in morals, it may be stated that, as a principle, no servant can serve two masters, for either he will hate the one and love the other, or else he will hold to the one and despise the other. Luke 16, 13. Unless the principal contracts for less, the agent is bound to serve him with all his skill, judgment and discretion, ’ ’ etc.

Tndeed, it may be stated that the rule does not depend upon whether or not the principal is injured by the conduct of the agent. The wholesome rule is that the agent shall not put himself in a position where he may be tempted to betray his principal or to serve himself at the expense of his principal.

In Peckham Iron Co. v. Harper, supra, the court on page 108 says:

“It is a fundamental rule that an agent employed to sell can not be a purchaser, unless he is known to his principal to be such; nor is the rule inapplicable or relaxed when the employment is to sell at a fixed price. Ruckman v. Bergholz, 37 N. J. L. 437. The law will not suffer one to earn a profit, or expose him to the temptation of a dereliction of his duty, by allowing him to act, at the same time, in the double capacity of agent and purchaser. Church v. Insurance Co. 1 Mason 341.

Many authorities might be cited to support the rule above laid down. Suffice it to say that Pagel was a sales agent of the Warner Sugar Refining Company, and as such it was his duty to serve his principal alone, and he could not enter into a contract with the defendants or other proposed purchaser whereby he, Pagel, would make a profit upon the sale or resale of the sugar, without a full and fair disclosure to his principal, the Warner Sugar Refining Company. The law does not aid either of the parties who enter into such a contract as this. It leaves them where it finds them. Neither the plaintiff nor the defendants could enforce such a contract as is claimed by the plaintiff: to h’ave been entered into in this case. The law is not partial in favor of the defendants who refuse to pay after the profits are made, but, as has been stated, on the grounds of public policy the law refuses to give assistance to either of the parties who make a contract which is utterly void on the grounds of public poliev.

Tn this ■view of the Case it is immaterial whether the trial court reversed the judgment which had been passed upon the demurrer prior to the trial, or not; the sole question.is whether or not the demurrer to the second defense of the answer should have been sustained or overruled, and we are clearly of the opinion that the demurrer should have been overruled.

Furthermore, it appears in this case that plaintiff’s contract was made with one of the defendants, who were partners, whereby he claims to have made an agreement under which he was to share in the profits of the business of the defendants. There is no evidence that the other partner consented to this agreement, and surely a partnership even for a single transaction could not -be entered into between the plaintiff and one of the defendants without the consent of the partner of the defendant who made the agreement.

Without considering the other questions involved in the case, we think that, for the reasons stated, the judgment of the trial court in instructing the jury to return a verdict in favor of the defendants was correct, and the judgment will be affirmed.

Jones, E. H. and Jones, O. B., JJ., concur.


author: GRANT, J.

text:
    MASTER AND SERVANT — NEGLIGENCE.
    [Cuyahoga (8th) Court of Appeals,
    January 25, 1915.]
    Winch, Meals and Grant, JJ.
    George L. Westropp v. William F. Schuck.
    Painter Injured by Taking Chance on Breaking of Ladder Condemned Held Primarily Negligent.
    Two painters, who had protested that one of the ladders furnished them was unsafe, received a telephone message from their employer in which he said he could not afford to buy new ladders, and telling them, according to one witness, to “come in,” and according to another witness to “go ahead and do the best you can.” Pearing that if they heeded a call to “come in” they would either be laid off or given less desirable work, they agreed between themselves that they would stay and “take a chance.” The ladder broke and one of the men fell and was injured. Held:
    That the going to work, under the circumstances presented, constituted the original act of negligence and was the proximate cause of the injury.

      Error.

      Patterson & Neiding, for plaintiff in error.

      Spear, Mills, Knight & Godfrey, for defendant in error.
   GRANT, J.

For the purposes of clearness and brevity, the parties to this proceeding will be designated here as they were in the court below, that being in the inverse order of their present standing.

It is not disputed that at the time the plaintiff came to his injuries the defendant employed, regularly, more than five men and that he was not a contributor to the state liability insurance fund; so that, the plaintiff being in his service as a workman, the former allowable defenses of assumption of risk by the plaintiff, the contributory negligence of the plaintiff and the culpable acts or omissions of a fellow servant in the same employment, if any of these was the fact, were not open to him.

The negligence alleged in the petition upon which the cause Ivas tried below, and from which a liability was sought to be fastened upon the defendant, consisted, as was said, proximately to the injury, in providing appliances which, within the actual or putative knowledge of the latter were defective, unsafe and dangerous to be used in the service which the plaintiff was set to do by the master. Specifically, it was charged that within such knowledge the ladders upon which the plaintiff was ordered to work at the time, were not of equal size and were of insufficient strength.

It appears that the plaintiff ivas engaged, under the direction of the defendant’s foreman, in painting a house. Two ladders were provided which were set parallel to each other against the house. They were of unequal lengths, one being thirty-five feet and the other forty feet long. The mode of working was to suspend a scaffold or staging, consisting of a plank upon which the plaintiff was to stand, from the two ladders by means of hooks swung over the top rung of each. This method produced, it is said, an unequal strain upon the rungs of the ladders, giving a tortious or rotary bearing at the points of contact of the hooks with the rungs.

The top rung of the shorter ladder was defective as to strength, so it is said, being in fact rotten, and it broke when the unequal strain was brought to bear upon it, precipitating the plaintiff from his place on the plank and so causing his hurts.

It appears that the plaintiff, before mounting the ladder, had misgivings as to the strength of the one that finally broke, and so stated to his fellow-workman, one Goldsmith. They then consulted their foreman, who directed them to call up Mr. West-ropp, the defendant, at his shop, by telephone. Goldsmith did this, calling his attention to the feared infirmity in the ladder and asking his direction in the matter. His purported answer was reported by Goldsmith to the plaintiff. As to this answer, two versions are given — one by Goldsmith to the effect that Westropp said when notified of the condition of the ladder, "Well, you boys come in.”

The reason they did not "come in,” as narrated by Goldsmith, was — in the language he then used to the plaintiff— "That means either an inside job or a lay-off.” To which the plaintiff responded, according to Goldsmith, that it was pretty warm and so he did not care for inside work. Goldsmith replied to this by saying, "Suppose we take a chance on them ladders.” And the plaintiff said, so Goldsmith says, "All right.”

And they went to work, with the result mentioned.

The plaintiff does not deny this proposition by Goldsmith that they should "take a chance” on the ladder in its then known or suspected defective condition. His testimony in this respect is as follows:

‘' Q. llidn’t Goldsmith then say, suppose we take a chance on them ladders and you both went up the ladder? You remember Goldsmith saying that? A. I don’t remember.
"Q. Will you say he didn’t say it? A. I couldn’t say whether he did or not. Something I don’t know, I won’t dispute.”

That the infirm or defective condition was known, or at least suspected bjr the plaintiff at the time, seems clear from what he says:

"Q. As a matter of fact you knew when you went up that ladder then that the ladder was liable to break if you went up on lop of it, is that so? A. Well, at least I thought so.
“Q. So when you went up on that platform on the plank between those two ladders you knew it was liable to break and have an injury? A. Not as long as I see Gorman up there.
“Q. You thought so, didn’t you? A. I thought so, yes.”

The plaintiff’s account of what Goldsmith reported to him as coming from Westropp when the latter wras called up for instructions by telephone, wras this:

‘ ‘ Gorman came out and told me in the presence of the foreman that Mr. Westropp says that it is the best he can do. He can’t afford to get any new ladders, ‘So do the best you can with what you have got.’ ”

It should be said here that Goldsmith appears to have gone, indifferently, by the name of Goldsmith and the name of Gor-man — it evidently being a case of idem sonans to the Teutonic apprehension.

It is not quite clear, we think, whether the words “ So do the best you can with what you have got,” are intended as the language of Westropp or the advice of Goldsmith, alias Gorman. But we infer the former.

In the plaintiff’s brief before us, the following appears:

“Plaintiff testified that when Goldsmith, at the foreman’s request, phoned to Westropp, Goldsmith reported that West-ropp said he could not afford to get other ladders and that they would have to use the ones they had, and that thereupon the foreman directed plaintiff and Goldsmith to proceed with the work.”

This does manifest violence to the language that the plaintiff did use and which we have quoted from the record. Allowing it to be true, it would amount to a direction to the plaintiff to use the ladders he had, and would come fairly within the rule in Chicago & Ohio Coal & Car Co. v. Norman, 49 Ohio St. 598 [32 N. E. Rep. 857], a promise to repair being implied from the language of the employer. At least the question of whether there was not an implication of such promise would be for the jury.

But wha.t the plaintiff in fact testified in this respect falls far short of that. He was told to do the best he could with the appliances at hand. Surely it was not doing the best he could to mount to work on a ladder having a rotten rung, and he knowing it. "We have, then, these things in the record: the plaintiff’s own statement to the effect that his employer told him to do the best he could with the ladders he had, and not a direction to use a ladder known or thought by him to be unsafe. His own statement is that he thought the ladder was liable to break and the testimony of his co-laborer — uncontradicted by him— is to the effect that he consented to the proposition of the latter to “take a chance” with the defective ladder, rather than to take a chance of losing his job or being put to work inside in hot weather.

His going to work under these circumstances was an original act of negligence, apart from and independent of anything that the master set him- to do, and constituted the proximate cause of the injuries of which he complains. The record does not, in our opinion, present the question of assumed risk. That doctrine has to do with work at which the servant has been set by the master, and not -with a method of work at which he has set himself upon his own initiative, the only direction of the employer being to do the best he could — presumably, as far as the master's w7ords go, the best for himself and for his own personal safety, and which by no reasonable intendment could be made to mean an instruction to expose himself to the perils of using an instrumentality thought by himself to be dangerous. If there was a risk he took it, not as an incident of a direction to work, but as one appertaining to a course of action which he saw fit to substitute in place of the course advised by his employer. It wrould be a novel proposition for a servant to disregard his master’s instructions and then hold the master responsible for whatever the former might see fit to do in place of them. And when it is not denied that the servant, instead of doing what he was advised to do by the master, consented to “take a chance” upon the very implement of the defective condition of which he was at the time complaining, then he put himself in the wrong, clearly so, as we must think, and should take the consequences Sowing from that fact.

There is other testimony in the record, especially that of the foreman, Donalek, which strengthens the conclusion we have so far reached, but we can with safety rest on what the plaintiff says and on that which he does not dispute.

If this conclusion is sound, then the case should have been taken from the jury at the close of the plaintiff’s evidence, as was asked, or, certainly, at the conclusion of all the evidence, as was again requested. For the same reason the motion of the defendant for a new trial should have been allowed instead of denied, as the fact was.

The admission of testimony as to the talk had with Westropp over the telephone, was not an error, as we view it. At most, it was not to the prejudice of the party who complains of it.

The answers of the jury to several of the interrogatories propounded to them on the trial show clearly, in our estimation, that they did not consider the evidence in the case. In endeavoring to sustain the answers necessary, as they thought, to uphold the verdict, their attempted explanations proved that they had disregarded and paid no attention to evidence without which the conclusion they reached could not find support. And this is an additional reason why the motion for a new trial should have prevailed.

Because of the errors found, the judgment complained of in this petition is reversed and the cause is remanded to the court of common pleas for such further proceedings there as may be in accordance with law.

Winch and Meals, JJ., concur.


author: HOUCK, J.

text:
    INJUNCTION — PARTIES.
    [Holmes (5th) Court of Appeals,
    December 27, 1915.]
    Shields, Powell and Houck, JJ.
    Albert E. Cline v. Oath Martin et al.
    Injunction against Payment of Unliquidated and not Due Claims Owners not Being Made Parties Denied.
    An action does not lie to enjoin payment of claims which have not been liquidated or are not yet due, the owners of which have not been made parties.
    Appeal.

      Carl Schuler, Pros. Atty. Wey gandí & Rose and W. F. Garner, for plaintiff.

      C. H. Workman, George W. Sharp and C. J. Fisher, for defendants.
   HOUCK, J.

The plaintiff in his petition says that he is an elector and taxpayer of Knox township, in Holmes county, Ohio, and resides in the territory alleged to be in the Nashville village school district; that the defendants, Martin, Elder, Glasgow, Jones and Ligget claim to be the members of said board of education; that prior to the establishment of the said pretended Nashville village school district the same territory was included in what was then known as the Nashville special school district, which had been declared null and void by a decree of court; that the above named persons were also the members of the Nashville special school district; that while acting as members of said pretended Nashville special school district they incurred an indebtedness for wagons, hall rent, and hauling pupils, in the sum of about $2,200; that the defendants, as members of said village board of education, have assumed and agreed to pay said obligation of said former pretended board of education, and will do so unless restrained by order of court from so doing, and prays for injunction, etc.

The cause coming on to be tried, no answer being on file, it was agreed by all parties hereto that the defendants would file an answer in the nature of a general denial, and the cause was submitted on said pleadings, the petition and answer, and the evidence.

The evidence disclosed that all of the claims which plaintiff alleges had been assumed by the defendants, and for which he seeks to enjoin payment, have been paid, save and except two or three claims, amounting to about $200, for hauling pupils, and the testimony as to them is so conflicting that the actual sum due, if any, was not made clear to the court. We find that these claims, as they now stand, are unliquidated claims. The evidence further discloses that a $1,200 note given by the former board of education to the Citizens Banking Company of Loudon-ville, Ohio, has not been paid, and plaintiff seeks to enjoin the present board from paying the same.

It will be observed that the unpaid claims of those who conveyed the pupils to the schools are in dispute, and the exact amount due, if any, has not been ascertained and determined. It will further be observed that this is a suit in equity seeking to invoke the remedy of injunction against claims that have not been reduced to judgment, and in fact no testimony was offered proving or even tending to prove that the owners or holders of said claims had ever demanded or requested payment of the present board of education. And what is said here with reference to there being no demand or presentation of the claims for hauling pupils, and the same not being reduced to judgment, is applicable to the note held by the bank.

From what has been said it is apparent that the petitioner comes into a court of equity basing his action, so far as the first claim is concerned, upon unliquidated claims, seeking to have the amount due determined, and at the same time invoke the equitable remedy of injunction thereto, all of which is to be done through the medium of a proceeding in and relief obtained from a court of equity. Certainly this can not be done.

The suit at bar is not one at law, but in equity. The relief sought is not to determine as to the amount of or the legal liability as to the recovery on the claims and note in question, but the relief sought and prayed for is injunction.

The owner of the $1,200 note, the Citizens Banking Company, is riot made a party to the present action, and yet plaintiff seeks to enjoin defendants from paying said note, in face of the fact that the evidence does not show that it at any time attempted to collect the same of the defendants, and the further fact that no evidence was offered to show or tending to show that it had ever demanded payment of them. In view of these facts, how could plaintiff properly be entitled to a restraining order against the defendants preventing them from paying said note, without one of the real parties in interest, the Citizens Banking Company, being made a party defendant and given an opportunity to set up its defense if it desired to do so ? The banking company is not only a proper, but a necessary party to this suit, and is entitled to its day in court, and without such opportunity being given it is certain a court of equity would not be warranted in granting to plaintiff the relief he seeks.

Cuided by the facts in this case, and the law applicable to the same, we know of no reason why the plaintiff should be permitted by means of the equitable remedy of injunction to obtain the relief which he asks. Furthermore, equity never seeks to act in contravention of law, nor does it seek to confer jurisdiction upon itself when it appears by the pleadings or evidence, or both, that there is some remedy at law which has not been fully invoked, or where there is an ample remedy at law.

• Taking this view of the ease, we are of the opinion that a decree should be entered in favor of the defendants. The petition of plaintiff is dismissed, at his costs. Decree and judgment is entered accordingly.

Shields and Powell, JJ., concur.


text:
    CONTRACTS — DAMAGES—SALES
    [Hamilton (1st) Court of Appeals,
    January 17, 1916.]
    Jones, Jones and Gorman, JJ.
    Domestic Science Baking Co. v. Sheffield-King Milling Co.
    Provision for Liquidated Damages must be Treated as a Penalty In Action for Breach of Contract to Purchase Specific Personal Property.
    In an action under a contract for purchase and sale which has been breached and related to as common and stable an article as flour, a provision for ascertaining the resulting damages by a rule which would give an amount greater in excess of what was actually suffered must be treated as a penalty to be im posed rather than as liquidated damages, and the defendant in such a case should he permitted to show all the circumstances surrounding the making of the contract which would tend to disclose the real loss sustained.
    ERROR.
    W. A. Rinckhoff, Murray Seasongood and Robert P. Goldman, for plaintiff in error.

      Stanley K. Henshaw, E. R. Donohue and H. L. Hoidale, for defendant in error.
   GORMAN, J.

On August 5, 1912, the parties hereto entered into a contract whereby the defendant in error agreed in writing to deliver f.o.b. the cars at Faribault, Minnesota, 4,000 barrels of flour of 196 pounds each, the defendant in error, the seller, to pay the freight from Faribault to Cincinnati. The flour was to be packed in jute bags of 140 pounds each. The price of the flour was $4.75 per barrel at Faribault. The deliveries were to be made between October 1,1912,.and March 1,1913, via C., H. & D. Railroad. Payment was to be by draft with bill of lading attached, to be paid through the Market National Bank of Cincinnati. Shipments were to be made upon the order of the ven-dee, the Domestic Science Baking Company.

The contract provided for damages which should be payable by the vendee in case of breach. In substance it was agreed in the contract to sell that—

‘1 If the buyer fails to furnish directions for shipment within original contract time or prior to the date of expiration of extension, seller may, (1) extend contract limit thirty days, subject to carrying charges * * *; (2) ship the goods at his option within thirty days * * *; or (3) terminate contract, in which case the following is agreed upon as the basis of settlement, viz.: the actual difference between the highest closing price of No. 1 Northern wheat in Minneapolis on date of sale and date of cancellation as shown by the ‘Minneapolis Market Record,’ figuring four and one-half bushels of wheat for every barrel of flour, the buyer to reimburse the seller for carrying the wheat at the rate of one cent per bushel per month from the date of sale to date of cancellation, plus two cents per bushel for buying and reselling the wheat, and two cents per bushel to cover loss of profit, if any, and inconvenience to seller resulting from failure of buyer to take out flour as per contract.”

There were other ter) ns and conditions in the contract, but these are sufficient to present the questions which arose in this cause in the trial below.

The vendee, the Domestic Science Baking Company, ordered out and received 750 barrels of flour, but refused and neglected to order the remaining 3250 barrels, and refused to give directions therefor and breached the contract.

The action was brought by the defendant in error in the court of common pleas to recover the damages claimed to have been sustained under this contract by reason of the breach of the contract on the part of the plaintiff in error in refusing to order out the remaining barrels of flour.

Upon the trial of the cause below the trial court held that no evidence was admissible to show the market price of flour either at Faribault, Minneapolis, or at Cincinnati, but the parties, in the determination of the amount of damages which might be recovered, were limited to the rule laid down in the contract for determining these damages. Under this rule, allowing the vendor the amount agreed upon under the contract, the damages for the failure to take the 3250 barrels of flour would amount to about $4,400. The Domestic Science Baking Company offered to show the market price of the flour in question ■ at Cincinnati on tbe date of the breach of the contract, and further offered to show the market price at Faribault, Minnesota. The court refused to allow this to be done, and counsel for plaintiff in error, so the record discloses, stated that if it were permitted to prove the market price of flour at the time and place of delivery, when the breach occurred, the damages to the Sheffield-King Company would not exceed $500. In fact, it was claimed that the evidence would show, if admitted, that there was little or no damage resulting to the plaintiff below.

During the trial the Sheffield-King Milling Company waived its claim of two cents per bushel to cover the loss of profit, and the court instructed the jury to return a verdict in favor of the plaintiff below for $4,185.46, which included interest. If the plaintiff below had not waived its claim of two cents a bushel prospective profits, the amount of the verdict under the instructions of the court would have been nearly $4,500.

Plaintiff in error asks for a reversal of this judgment, upon the ground that the court erred in refusing to permit it to offer evidence tending to show the market value of the flour at the time of the breach and at the place of delivery; and for the further reason that the court refused to permit it to offer evidence tending to show the situation of the parties at the time the contract was entered into and all the surrounding circumstances.

The court; below instructed the jury to return a verdict in favor of the plaintiff upon the theory that the provisions of the contract, for liquidation of damages, were agreed upon between the parties, and that no other rule of evidence is admissible to establish damages. The court also held that under the evidence there was no question of the breach of the contract, because the defendant below had refused and neglected to take the remainder of the flour.

We are of the opinion that the judgment should be reversed, and the case remanded for a new trial.

In this state the rule is well established that the measure of damages for the breach of a contract of sale of specific personal property is the difference between the market price and the eon-tract price at the time and place of delivery. Section 844 G. C.; Cullen v. Bimm, 37 Ohio St. 236; Nixon v. Nixon, 21 Ohio St. 114; Smith v. Lime Co. 57 Ohio St. 518 [49 N. E. Rep. 695].

Tt is true that parties may agree upon a sum as liquidated damages in case of a breach of a contract of this character, but courts will closely scrutinize such agreements for the purpose of determining whether or not the stipulation fixed is a penalty, or correctly represents the damages sought for the breach of the contract and which naturally flow from the breach.

The trial court was of the opinion that the rule laid down in Doan v. Rogan, 79 Ohio St. 372 [87 N. E. Rep. 263], should be applied to the instant case In that case there was a contract entered into between four partners, and among other provisions of the contract was the following:

.“That if either Seth IT. Doan, Dudley J. Mahon or Conrad Roth shall sever his connection with the said temporary partnership or said corporation without the consent of Michael J. Rogan and within three years from this date, the person so offending shall pay said Michael J. Rogan the sum of one thousand dollars as liquidated damages.”

The Supreme Court held in that case that this was a reasonable provision for liquidated damages, and in the second paragraph of the syllabus the court said:

“Whether a stipulation providing for liquidated damages for the breach of a contract is to be construed as liquidated damages or as a penalty, depends upon the intention of the parties to be gathered from the entire instrument. While courts will not construe contracts in a way authorizing recovery for liquidated damages simply because the parties have used that term in the agreement, yet where parties to a contract otherwise valid have in terms provided that the damages of the injured party by a breach on the part of the other of some particular stipulation, or for a total breach, shall be a certain sum specified as liquidated damages, and it is apparent that damages from such breach would be uncertain as to amount and difficult of proof, and the contract taken as a whole is not so manifestly unreasonable and disproportionate as to justify the conclusion that it does not tody express the intention of the parties, but is consistent with the conclusion that it was their intention that damages in the amount stated should follow such breach, courts should give effect to the will of the parties as so expressed and enforce that part of the agreement the same as any other. ’ ’

It will be noted that in the case just cited the damages would be difficult if not impossible of ascertainment. The amount of damages, if any, which could be recovered would be quite uncertain, and there was nothing unreasonable in providing that $1,000 should be paid as liquidated damages for the breach of the contract under all the circumstances of that case.

But in the case before us, flour is a common article or commodity, bought and sold throughout the length and breadth of the land, in every city, town and hamlet. It is perhaps as common an article of commodity as is bought and sold daily throughout the United States. It is common knowledge that flour has a market value which perhaps may fluctuate from day to day, from week to week, or from month to month, but it has a market value easy of ascertainment, and there is no difficulty in finding out what is the market value of any grade of flour made in any part of the United States. If there is no market value at any particular point in the United States, then the market value of flour at the nearest point to that place may be taken and the cost of carriage between that point and the place where the market price is desired to be fixed would determine the market price in the locality where there are no quotations.

It appears to this court that there would have been no difficulty in determining the market value of this flour, either at Faribault, Minnesota, or at Cincinnati, and the excuse for fixing a sum as liquidated damages does not exist in this case. It was not difficult to ascertain the market price. The damages for the breach of the contract would be in no wise uncertain, and it ■would be entirely unreasonable to allow damages in a case of this kind, which would amount to almost eight times the real damage suffered by the vendor on account of the breach of the contract.

Taking these matters all into consideration, we think the reasonable conclusion to reach is that the construction to be placed upon the language in this contract which undertakes to prescribe a rule for ascertaining the damages, is that it shows a penalty was provided, rather than liquidated damages.

1 Pomeroy, Eq. Jurisp. p. 728, Sec. 440, in the note, states:

“"Whether the sum mentioned shall be construed as a penalty or as liquidated damages is a question of construction on which the court may be aided by circumstances extraneous to the writing. The subject-matter of the contract, the intention of the parties, as well as other facts and circumstances, may be inquired into, although the words are to be taken as proved exclusively by the writing. ’ ’

The court below should have permitted all evidence to be offered tending to show the situation of the parties at the time this contract was entered into, all the surrounding circumstances, and testimony as to the market value of the flour, and the question should then have been submitted to the jury not as to whether or not this was a penalty, but as to what the real damages were in the case.

In the case of Mt. Airy Milling Co. v. Runkles, 118 Md. 371 [84 Atl. Rep. 533] the first paragraph of the syllabus is as follows:

“In a contract the statement of the parties as to liquidated damages is generally regarded as a penalty unless the contrary intention is unequivocally expressed, so that harsh provisions will be avoided and compensation alone awarded.”

In Zenor v. Pryor, 57 Ind. App. 222 [106 N. E. Rep. 746], the following rule is laid down in the fifth paragraph of the syllabus:

“Where contracts leave in doubt the question whether sums specified therein by the contracting parties to be paid in ease of a default are intended as liquidated damages or penalties, the court favors that interpretation which makes such sums penalties. ’ ’

It appears to the court that there is no reasonable or proper connection between the rule laid down in the contract, for ascertaining damages, and the actual damages that would result from & breach of the contract for the sale of the flour. Wheat was taken as the basis upon which to calculate the damages. Why not flour? Flour is just as common a commodity as wheat in the market, and the market price is just as easily ascertainable as that of wheat.

We do not deem it necessary to multiply authorities in support of the conclusion we have reached, that the provision for the ascertainment of damages in the contract under consideration shows that a penalty was to be imposed, rather than liquidated damages. Counsel for defendant in error have been specially diligent in citing numerous authorities in support of the contention that the ruling of the court below was correct. A brief of more than one hundred and fifty pages was filed with us, in which so many cases are cited that it appears to be an effort to “pile Ossa on Pelion” of adjudicated cases.

Many of these cases grew out of contracts to manufacture and sell certain articles, in which the measure of damages was difficult of ascertainment, no market price existing for the articles to be manufactured and sold. But in all cases in which the article sold was a common stable article sold in the market, having a well known or easily ascertainable market value, and where the parties undertook to fix as liquidated damages a sum largely in excess of the difference between the market price and the contract price, the eases have universally held that such stipulation would be treated as a penalty, rather than as liquidated damages.

We think substantial justice requires that the judgment in this case be reversed and the cause remanded to the court of common pleas for a new trial, so that the plaintiff in error may have an opportunity to sbow all the facts and circumstances surrounding the making of the contract, to show the market price of the flour at the time of the breach at the place of delivery, and all other facts and circumstances which would tend to show the real damage or loss that was sustained, if any, by the defendant in error.

Judgment reversed and cause remanded.

Jones, E. and Jones, O. B., JJ., concur.


author: JONES, 0. B., J.

text:
    DESCENT AND DISTRIBUTION.
    [Hamilton (1st) Court of Appeals,
    May 29, 1916.]
    Jones, Jones and Gorman, JJ.
    Jane Champlain v. John M. Walsh, Exr., et al.
    Next of Kin of Decedent, Dying without issue, may be Descendants of Great, Great Grandparents.
    The next of kin within the sixth clause of Sec. 8574 G. C., of one who died leaving no issue, and whose father and mother are both dead and left no issue surviving her, are the descendants of decedent’s grandparents, great grandparents, or great great grandparents, as far back as it may be necessary to go.
    ERROR.

      Hichs & Hicks, for plaintiff in error.

      John M. Walsh, for executor.

      James E. Jordan, for defendants in error.
   JONES, 0. B., J.

The final judgment in this case, in the court of common pleas, ordered distribution of the property undisposed of by the will of Marcena Malisa Goldsmith — one-half of that which came to her from her husband, to-Avit, the real estate and certain bonds —to Moses Goldsmith the brother of the whole blood of her deceased husband; and provided that ‘ ‘ the other one-half of said surplus of said bonds, together with any undevised balance of the personal estate of said testatrix remaining after the payment of debts and legacies' as above provided, shall be paid and distributed in accordance with the provisions of the General Code of Ohio applicable thereto. ’ ’

This case, on error from the common pleas court, was heard in this court before the judges of the sixth district, who affirmed the judgment of the common pleas court so far as this matter was concerned, and modified it in some other respects. The parties, however, bring it again to the attention of the court because of their failure to agree as to what provisions of the Genera» Code of Ohio apply to the distribution of this particular property. The property consists of a house and lot in Madisonville and government bonds of the value of about $3,000, all of which came to the testatrix by devise from her deceased husband, Charles N. Goldsmith, and $1,000 which was acquired by the testatrix from other sources.

There is no question about the one-half of the property which came from her deceased husband going to his brother, Moses Goldsmith. The contention submitted to the court is, that because testatrix had no issue, and her father and mother who are both deceased left no issue surviving her, and her next of tin are the descendants of her grandparents or great grandparents, that she left no next of kin within the sixth clause of Sec. 8574 G. C., and that Moses Goldsmith would therefore take under the terms of See. 8576 G. C.

The right to the one-half of the real estate and the bonds taken by Moses Goldsmith, as to which there is no dispute, is given him by See. 8577 G. C. The claim he makes as to the balance of the property is under See. 8576 G. C. By its terms this latter section would operate only where “there is no person entitled to inherit it under the next three preceding sections.” The next of kin of the wife, however, claim under Sec. 8574, clause 6, which is as follows:

‘ ‘ If the father and mother are dead, the estate shall pass to the next of kin, and their legal representatives, to and of the blood of the intestate. ’ ’

Counsel for Moses Goldsmith contend that this clause undertakes to make two classes of “next of kin” — those of the blood of the intestate, and those not of the blood of the intestate. And he undertakes to say that the only next of kin of the blood of the intestate would consist of the children and their issue and the father and mother and their issue. We find no support for this contention. They may be nearer blood relatives, but the grandparents and their issue, and the great grandparents and their issue, are also blood relatives, as far back the line as it is necessary to go to find the nearest blood relatives.

The purpose of inserting the words “of the blood of the ini estate” seems to be to exclude relatives by affinity claiming through a husband or wife. Strictly speaking, the widow is not classed as next of kin, nor is a surviving husband; but under general definitions that are sometimes given, either of these might be included within the term. The Century Dictionary as one definition, defines “next of kin” as “the relatives of a decedent entitled to his personal estate under the statute of distribution.” And “kin” is defined as “relationship; consanguinity or affinity.” Among the definitions of the term “next of kin” found in 29 Cyc. 1044, are “nearest of kin; nearest in blood relationship; nearest of blood, ’ ’ etc.

In Armstrong v. Grandin, 39 Ohio St. 368, an order of the probate court to distribute and pay over funds to the next of kin and representatives of said intestate according to the provisions of the statute, etc., was construed to include the widow, although not strictly within the meaning of next of kin. It is agreed that there are living relatives of Marcena Malisa Goldsmith who can be found, who are descendants of either her grandparents, of her great grandparents or of her great great grandparents, whose names and proximity to the testatrix have not yet been fully ascertained. The next of kin thus found are entitled to take this property under the terms of Sec. 8574 G. C.

Jones, E. H. and Gorman, JJ., concur.


author: POWELL, J. Shields, J.,

text:
    MOTIONS — TRIAL—VERDICT.
    [Stark (5th) Court of Appeals,
    December 5, 1916.]
    Shields, Powell and Houck, JJ.
    CANTON (City) v. Walter Pryke.
    1. Motion by Defendant at Close of Plaintiff’s Evidence to Direct Verdict net Submission of Defendant’s Case.
    A motion made by the defendant, at the close of the evidence offered by the plaintiff, to direct a verdict in favor of the defendant is not a submission of the defendant’s case and cannot be made so by the plaintiff’s joining in such motion. Such a motion by the defendant tests the sufficiency of the plaintiff’s case, and is in no wise a submission of defendant’s case.

      2. Motion to direct Verdict Equivalent to Demurrer to Plaintiff1» Evidence and if Overruled Defendant May Submit Case to Jury.
    A motion by defendant to direct a verdict in his favor made at the close of the evidence of plaintiff is equivalent to a demurrer to the plaintiff’s evidence and under the code practice if overruled, the defendant has a right to introduce his testimony and have the cause submitted to the jury on the facts; and the nature of such a motion by defendant is not changed by plaintiff joining in such motion.
    3. Motions by Both Defendant and Plaintiff at Close of Plaintiff'» Evidence, not Waiver of Right by Defendant to Introduce Evidence and Submit Cause to Jury on Facts.
    Where it appears that at the close of the testimony offered by the plaintiff, a motion was made by the defendant to direct a verdict in its favor, and a motion was also made by the plaintiff to direct a verdict in his favor and the motion of the defendant was overruled, the defendant then had the right to go forward and offer his evidence and have the whole cause submitted to the jury on the facts; and when the motion of plaintiff was sustained and a verdict for plaintiff was directed by the court, such action on the part of the court deprived the defendant of its constitutional right to a trial by jury.
    4. Waiver of Jury Trial must be Shown In Record by Unequivocal T erms.
    The right of trial by jury should ever be held inviolate, and if a party who is entitled to such trial waives such right, the record must disclose such waiver in unequivocal terms.
    Error.

      Walter S. Buff and Clarence A. Fisher, for plaintiff in error.

      Webber & Turner, for defendant in error.
   POWELL, J.

The defendant in error, Walter Pryke, recovered a judgment against the city of Canton, for damages arising from the loss of the personal services of his wife, by reason of the negligence of said city in the maintenance of its streets and street crossings. Said judgment is brought into this court by petition in error for review'. The question presented to us for adjudication is one of procedure and not one arising out of the merits of the case.

The record shows that when the case was on trial in the court of common pleas the plaintiff, Pryke, offered his testimony and rested his case. The defendant, the city of Canton, then moved for a directed verdict in its favor, whereupon the plaintiff joined in said motion, asking a directed verdict in favor of the said plaintiff. The court overruled the motion of defendant and sustained the motion of plaintiff, directing a verdict in his favor in the sum of $2500, which verdict was returned by the jury and. the judgment thereupon was entered. Defendant filed a motion for a new trial, which was overruled, and a bill of exceptions was taken, containing the entire record and the same was filed in this court with the petition in error.

Did the court eiT in its action on said two motions for a directed verdict? We are of the opinion that it did.

The conduct of the trial of a cause in the court of common pleas is provided for by Secs. 11447 and 11448 G. C. By Subd. 3 of Sec. 11447 it is provided as follows:

“3. The party who would be defeated, if no evidence were offered on either side, first, must produce his evidence, and the adverse party must then produce his evidence.”

Pursuant to this direction plaintiff offered all his evidence and rested. Defendant then by his motion for a directed verdict, submitted for the consideration of the court, the evidence offered by the plaintiff, with the claim that even if its truth were admitted it would not make a ease that would entitle the plaintiff to a judgment in his favor. The action of the defendant was equivalent to a demurrer to the evidence, the only difference being in the legal effect of an order sustaining the same. Formerly on an order sustaining a demurrer to the evidence, a nonsuit was entered, which did not bar a second suit on the same cause of action, but now a judgment entered on an order sustaining a motion to direct a verdict is res judicata and no second suit can be maintained, otherwise a motion to direct a verdict and a demurrer to the evidence are one and the same thing. A motion by the defendant to direct a verdict at the close of plaintiff’s case is not a submission of the defendant’s case and cannot be made so by the plaintiff’s joining in such motion. He had nothing to submit that was not already submitted when he had offered his evidence and rested his case. His joining in defendant’s motion does not change the nature of it. It is still a motion testing the sufficiency of th,e plaintiff’s evidence, and is in no wise a submission of defendant’s ease. It is said, however, that the record does not show a prejudicial error in the action of the court; that the defendant should have stated what he intended to prove by the evidence to be offered. We do not subscribe to this view. The statute above cited prescribes what the record should show. It should show that the plaintiff offered his testimony and rested; that a motion to direct a verdict was filed by the defendant and overruled; that the defendant then offered its evidence, or refused to offer any, as the case might be and rested. If its motion to direct a verdict was then renewed as required by law, the whole case would be before the court and jury, and a motion by the plaintiff for judgment on the whole case would be a submission of the whole ease to the court, as a matter of law and without the intervention of the jury.

A case cannot be submitted and adjudicated on the submission of one side only. If it is submitted on the evidence it must be submitted on the whole evidence, and the record must so show. If on a motion for judgment on the pleadings it must be on all the pleadings in the case and not on any one of them. It is not necessary in this ease to show what the evidence to be offered tended to prove. It is only necessary to show that the defendant had evidence to offer, or if it had none to offer that it rested ffs case. This it does not show and the court erred in directing a verdict for plaintiff and in entering judgment thereon without such evidence having been offered.

It is strongly contended in argument that the defendant waived its right to have its ease submitted to a jury, and that it consented to have its case passed on by the court, or that the court should direct such verdict to be returned as the pleadings and the evidence would warrant.

The right of trial by jury should ever be held inviólate, and if a party who is entitled to a trial of his cause waives such right, the record ought to disclose such waiver in unequivocal terms. What does this record disclose that can be construed as a waiver of a jury trial, and submission of the same to the court without the intervention of a jury ?

The record shows that the court overruled the motion of defendant for a directed verdict and sustained the motion of plaintiff for such verdict. After this had been done, counsel for the plaintiff said: “We now ask that the case go to the jury on the facts.” Counsel for the defendant then said: “We object and insist that it is not the correct procedure.” The court then submitted the ease to the jury, by directing it to return a verdict for the plaintiff in the sum of $2500, which it did.

A majority of the court do not think that this constitutes a waiver of any of its rights on the part of the defendant. It was and is more of a protest to the action of the court in sustaining plaintiff's motion for a directed verdict, the motion for which had already been sustained. There remained nothing to submit except a direction by the court to the jury to retire and return a verdict in an amount fixed by the court.

“The right of trial by jury being guaranteed to all our citizens by the constitution of the state, cannot be waived or violated by either legislative act or judicial order or decree.” Gibbs v. Girard, 88 Ohio St. 34. [102 N. E. Rep. 299],

In the able opinion in this case, at page 47, the court says:

“So long as the trial by jury is a part of our system of jurisprudence its constitutional integrity and importance should be jealously safeguarded. The right of trial by jury should be as inviolate in the working of our courts as it is in the wording of our constitution. ’'

A majority of the court think there was no waiver of any rights on the part of the defendant; that the court erred in sustaining plaintiff’s motion for a directed verdict, and in directing the jury to return the verdict that was returned.

Said judgment will, therefore, be reversed and the cause will be remanded to the court of common pleas for a new trial, and for such other proceedings as are authorized by law. Judgment reversed.

Houck, J., concurs.

Shields, J.,

dissenting.

T dissent from the conclusion reached herein by my associates, basing such dissent upon the conclusion stated in the majority opinion in respect to the court below denying to the defendant its constitutional right of trial by jury.

In referring to the parties herein they will be referred to in the same relation as they were in the action below.

The proceeding instituted here is to reverse the judgment of the court of common pleas rendered in an action brought by the plaintiff to recover damages for loss of the services of his wife, Elizabeth Prybe, because of the injuries alleged to have been sustained by her by tripping and falling over a defectively constructed gutter plate at the intersection, of Cherry avenue and Fourth street in the city of Canton, caused as alleged, by the negligence and carelessness of said city.

An answer was filed denying the negligence charged and denying all liability on the part of said city.

Trial was had and at the conclusion of the evidence introduced on behalf of the plaintiff upon motions submitted for a directed verdict by both the plaintiff and defendant, as hereinafter more particularly set forth, the trial court directed the jury to return a verdict for the plaintiff in the sum of $2500, which was accordingly done and judgment was entered upon said verdict.

The petition in error alleges several grounds for the reversal of said judgment, but the principal grounds argued and relied on are contained in what are designated as grounds Nos. 6 and 6, which are as follows:

6. “The court- erred in directing a verdict in favor of the defendant in error after said court had overruled the motion of the plaintiff in error to direct a verdict in its favor, and said court in refusing to permit the plaintiff in error to introduce any testimony, deprived it of its constitutional right of a trial by jury as guaranteed to it by Sec. 5, Art. 1, of the constitution of the state of Ohio.”

8. “There is further error in the record and proceedings in this, that at the close of the evidence offered by the defendant in error the plaintiff in error having made a motion for the direction of a verdict in its favor and the court having then and there overruled the same, and without giving the plaintiff in error any opportunity to introduce its testimony in defense and as against its offer to so introduce its testimony in defense, directed a verdict on the sole evidence of the defendant in error, to all of which the plaintiff in error then and there objected and protested; and the plaintiff in error says that thereby the court deprived the plaintiff in error of its constitutional right of a trial by jury as guaranteed it under Sec. 5, of Art. 1, of the constitution of Ohio, and that the act of said court in so directing a verdict in favor of the defendant in error and refusing to permit the plaintiff in error to present its evidence to the jury for its consideration, was an arbitrary and unreasonable exercise of judicial authority.”

It appears from the record that at the conclusion of the plaintiff’s ease the defendant submitted the following motion:

“Now conies the defendant and moves the court to arrest this case from the jury and direct a verdict in favor of the defendant for the reason that the evidence produced on the part of the plaintiff is insufficient in law to sustain the plaintiff’s cause of action, and for the further reason that plaintiff has not claimed any actual notice on the part of the city of the defective street and there is no evidence of any constructive notice sufficient to warrant the court in submitting this cause to the jury.”

It appears that upon the submission of the foregoing motion of the defendant, the plaintiff likewise submitted the following motion:

“Now comes the plaintiff, the defendant having moved the court to direct a verdict for the defendant, and joins in such motion and asks the court to direct a verdict for the plaintiff.”

Here the record shows that the foregoing motions were submitted; it was argued that the motion of the defendant was passed on and overruled by the trial court before the motion of the plaintiff was made, and that, therefore, the two motions were not before the trial court for determination at the same time. Whatever the fact, the court can only accept the record as showing the proceedings upon the trial and referring to the record we find the following after the submission of said motion for a verdict by the defendant:

“Motion Overruled.”

After referring to the fact that both the defendant and plaintiff submitted motions for a directed verdict, the following appears:

“The Court: The record should show that Mr. Turner made bis motion before the court overruled the defendant’s motion. The fact is Mr. Turner and myself spoke at the same time and the stenographer took my remark and turned around and asked what Mr. Turner had said because of the fact that both spoke at the same time; Mr. Turner was right there and he was diligent in the matter, he attempted to protect the rights of his client.
“Mr. Ruff: The motion of the defendant having been overruled, the defendant, the city of Canton, now offers Miss Tyrone Bloomfield as a witness on behalf of said defendant to give testimony in it’s behalf.
“Mr. Turner: I want the record to show that plaintiff’s counsel at this point interposed and objected to the statement made by counsel for the defendant in view of the fact that the court has not passed upon either of the motions submitted at this time and the statement dictated by counsel in the record as a statement of fact does not comport with the facts.
‘ ‘ The Court: The objection by counsel for plaintiff is well taken and sustained. At the conclusion of the plaintiff’s case, and. after the plaintiff had rested his ease, counsel for defendant made the motion hereinbefore set forth. The court had stepped down from the bench to listen to the dictation and Mr. Turner, counsel for plaintiff, had also stepped to the stenographer’s table and was listening to the dictation. At the conclusion of the dictation Mr. Turner and the court spoke at the same instant. The court overruling the motion made by the counsel for the defendant and Mr. Turner making a motion to the effect that the case should be taken from the jury and a verdict directed in favor of the plaintiff. The record should show that immediately following the motion by counsel for defendant the motion was made by Turner as counsel for the plaintiff.
“And the court coming now to pass upon the motions made by the respective counsel overrules the motion made by counsel for the defendant and sustains the motion made by counsel for the plaintiff, to which ruling of the court counsel for defendant excepts.
“Counsel for plaintiff: We now ask that the case go to the jury on the facts.
“Counsel for defendant: We object and insist that this is not the correct procedure.
“Court: Inasmuch as it is a question of th'e case to be submitted to the jury, I think under the 88th Ohio State the court has no alternative in the matter and must submit the case to the jury, which it will do.
‘ ‘ Gentlemen of the Jury: Motions have been made in this case in such a way and to such an extent that it has become the duty of the court to direct you in your finding in this case. It is the duty of the court and I now direct you that you shall return a verdict for the plaintiff in this case, and in the sum of $2500. You may retire and you may return a verdict for that amount.”

Now comes the defendant and excepts to the court directing a verdict in favor of the plaintiff in the sum of $2500.

Upon the foregoing record did the court err in directing a verdict for the plaintiff?

Courts have full control of their records and while it is apparent that some confusion arose due to the fact that both the court and counsel were talking at the same time after the submission of said motions for a directed verdict, there is no room for doubt as shown by the record that said motions were submitted to the court before either was passed upon.

The statute plainly regulates the method of procedure of trials. Here it appears that after the plaintiff had submitted his case a motion was made by both the defendant and the plaintiff for a directed verdict. While recognizing the distinction between a nonsuit under the former code practice and the legal effect of a directed verdict under the present code provision, the question arises upon the record as to what additional legal right, if any, did the plaintiff acquire by the submission of his motion for a directed verdict in connection with that of the defendant? The plaintiff’s case was then already made and it would seem that the submission of said motion in no wise changed the situation. The question and the only question before the trial court was on the sufficiency of the evidence introduced upon the part of the plaintiff to make his case under his petition, as raised by the defendant's motion to direct a verdict in favor of the defendant on the ground “that the evidence produced on the part of the plaintiff if insufficient in law to sustain the plaintiff’s cause of action. ’ ’

If the record stopped here I would say that this action of the trial court in undertaking to render judgment on the motion of the plaintiff as the case then stood was not only irregular, but erroneous, for I am not fully persuaded that the trial court, under the authorities presented was authorized to enter a judgment in the ease until after all the evidence had been presented upon the part of both the plaintiff and the defendant, or until full opportunity had been offered the defendant to present its defense unless such right was waived, in whieh event such waiver would be deemed a submission to the court of the questions of law and fact involved. That the defendant had the constitutional right to have its rights passed upon by a jury admits of no question, but it is claimed that this right was waived by the defendant in refusing to introduce any evidence after the trial court held against it on its motion for a directed verdict. True it may be said that the court had then already sustained a motion for a directed verdict on behalf of the plaintiff who as already stated was called upon to sustain the allegations of his petition, which action of the court was of itself harmless, but after the dispute between the court and counsel over the statements of the record was settled as appears by the record, with the rieht reserved to the defendant to make its defense upon the merits of the case, was not the opportunity then expressly offered to the defendant to make such defense and such opportunity declined? Under this record I am of the opinion that the constitutional right of the defendant to have the merits of its case passed upon by a jury was not denied, but that such right was expressly waived by the defendant’s own voluntary act and having waived it. the court under the law then became invested with the functions of a jury and passed on the evidence and directed a verdict which was accordingly rendered by the jury.

For the foregoing reasons I do not concur in the judgment of the majority of the court.