author: Lloyd, J.

text:
    Humbert, Appellee, v. Industrial Commission of Ohio, Appellant.
    (No. 4029
    Decided April 3, 1944.)

      Messrs. OJcun S DiSalle, for appellee.

      Mr. Percy B. Taylor, for appellant.
   Lloyd, J.

This action is in this court on appeal on questions of law from a judgment rendered for appellee in an action instituted in the Court of Common Pleas on appeal from an order of the Industrial Commission denying to the appellee, Eurie Humbert, the right to participate in the state insurance fund for injuries from an accident claimed to have been sustained by her in the course of and arising out of her employment as a traveling field representative for Thomas W. Briggs, doing business as The Welcome Wagon Service Company, who had complied with the Ohio Workmen’s Compensation Act and was amenable thereto.

Her claim was disallowed by the commission on the ground that her injury was not sustained “in the course of and arising out of her employment.”

Briggs was and is engaged in operating an advertising business in various cities in the United States, among which is Toledo, and employs in each of them a “hostess” to represent him therein. The duty of a hostess is to call upon newcomers and newlyweds and give them helpful information as to schools, churches, and so forth, with the primary object of inducing them to trade with local merchants whom her employer represents.

Among the duties of a field representative is that of, when for any reason it becomes necessary, selecting a hostess and training her in the duties she is to perform.

Mrs. Humbert, in searching for a person in her judgment qualified to be a hostess, makes such contacts and seeks and attends such social and other functions as opportunity may permit for the purpose of meeting, women of standing in the community from among whom she might find one available and qualified for the position of hostess. She testified: “Of course, any social affairs that we attend are supposed to be with an eye to business. I have accepted invitations to women’s chamber of commerce luncheons, to chamber of commerce dinners of business and professional women’s clubs,” and other like functions. She was subject to the direction of her employer at all hours of the day and night. “We do not work under any hours. We are at the disposal of our company at any time.”

Mrs. Humbert arrived in Toledo about'July 1, 1940, and from then until August 1, 1940, endeavored to find therein a person qualified to be a hostess for her employer. In the evening of that day she had a telephone call from a Mrs. Riggs, of Rockingham street, inviting her to go with herself and Mr. Riggs to call upon and meet a Mrs. Lingenfelter. They called for Mrs. Humbert at the Y. W. C. A. and the three of them went in Mr. Riggs’ automobile to the home of Mrs. Lingenfelter, 527 West Bancroft street, arriving there about eight p. m. After some general conversation in which nothing was said as to the employment of a hostess, for the reason that Airs. Humbert at once concluded that Mrs. Lingenfelter did not possess the necessary qualifications, they played “bridge” until toward midnight, when the Riggs undertook to take Mrs. Humbert to the Y. W. C. A. where she was lodging while in Toledo. On the way, Airs. Humbert complaining that she felt nauseated and had a “sick stomach,” suggested stopping at “the Hull Dobbs for a cup of coffee and some toast.” Mr. and Mrs. Riggs not wanting anything, waited for Airs. Humbert while she was in the restaurant.

Unmindful of the fact that the stools at the counter were on a ledge slightly higher than the floor level, Airs. Humbert when leaving misstepped, and falling, sustained serious injury. She contends that her injury was sustained in the course of and arising out of her employment and that the cases of Bower v. Industrial Commission, 61 Ohio App., 469, 22 N. E. (2d), 840, and Outland v. Industrial Commission, 136 Ohio St., 488, 26 N. E. (2d), 760, support that contention.

Assuming, that, because her employment was continuous for and during all of the twenty-four hours of each day, Mrs. Humbert when injured was acting in the course of her employment, the sole question for consideration is: Did her injury arise out of that employment? Was what she was doing when injured in furtherance of the interest or business of her employer?

Her going into the restaurant was in no way connected with or related to her duties as a field representative of Briggs. It was volitional and personal, and if this accident arose out of her employment, then any accident, however caused, occurring to her at any time, anywhere, while an employee of Briggs, must likewise be held to be so. This seems to this court a preposterous and absurd assumption and none of its members can strain his imagination to the conclusive belief that the Supreme Court has so held in fact or by implication. Nor do we think that the two above-mentioned cases are in any respect decisive of the question here presented.

The state insurance fund is a trust fund held by the state for the purpose for which created. In that sense, it is other people’s money and it should be carefully preserved as against claims not reasonably within the purview and purpose of the statute.

Despite the liberality of construction to be given the statute, there must be some limitation in its application, as the courts in varying and changing degree have decided. If there is any underlying fundamental principle involved in the interpretation and application of the statute, additional to what the Supreme Court has already announced, which will tend to ultimate uniformity and stability of decision, we must look to that court to declare it.

In the opinion of that court, in Ashbrook v. Industrial Commission, 136 Ohio St., 115, 24 N. E. (2d), 33, written by Judge Matthias, and noted as concurred in by all of the other judges, it is said at page 118 thereof:

“The clear purpose of the Workmen’s Compensation Law is to provide protection for workmen from the risks and hazards incident to their employment and to assure compensation for injuries sustained as the result of such risks and hazards.”

And at page 119:

“It is sufficient to say that an injury is received ‘in the course of’ the employment when it comes while the workman is doing the duty which he is employed to perform. It ‘arises out of’ the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out of’ the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.”

The members of this court can not visualize the accident to Mrs. Humbert as a risk or hazard incident to her employment, or her injury one that could be seen to have followed as a natural incident to her work and to have been contemplated by a reasonable person familiar therewith traceable to her employment, as a contributing proximate cause or in origin a risk connected with the employment and flowing from that source as a rational consequence.

The motion of the Industrial Commission for a directed verdict in its favor having been denied, its motion for judgment notwithstanding the verdict in favor of Mrs. Humbert should have been granted.

Accordingly, the judgment of the Court of Common Pleas is reversed and final judgment is rendered for the appellant, the Industrial Commission.

Judgment reversed.

Carpenter and Stuart, JJ., concur.


source: Caselaw Access Project

author: Carter, J.

license: Public Domain

text:
    Schafer, Appellee, v. Faylor, Appellant.
    (No. 18089
    Decided May 23, 1944.)

      Mr. V. W. Filiatrault, for appellee.

      Messrs. Loomis & Caris, for appellant.
   Carter, J.

The parties will be designated in this opinion as plaintiff and defendant.

This is an action for specific performance, which has for its basis the following instrument:

“Jan. 29, 1943

“Received of Stanley C. Schafer one hundred $100 cash. Payment on 83 acres farm in Brimfield Twp. $2,900 to be paid within 60 day balance of $6,000 to be paid at 30 per month at 4%% interest every sis month. Total price $9,000.

“Arthur Faylor

“Stanley C. Schafer”

Certain evidence was introduced by plaintiff over objection by defendant, and some evidence was introduced by defendant. The trial court found in favor of plaintiff and ordered specific performance. A motion for new trial was overruled and appeal on questions of law and fact is prosecuted to this court.

First of all, a reading of the memorandum in question without the aid of other evidence, clearly and conclusively shows that defendant sold or contracted to sell a farm of about eighty-three acres in Brimfield township; that plaintiff purchased same; that $100 down payment was made by plaintiff; that $2,900 was to be paid within sixty days from date of the signing of the memorandum; and that the balance of $6,000 was to be paid at the rate of $30 per month at 4%% interest every six months, total purchase price being $9,000. What other construction can possibly be placed on this written memorandum? It is certainly more than a receipt for money.

In his answer to the first amended petition defendant admits that he is the owner of land in Brimfield township, but avers that he is unable to state from the description given of the property in the petition, whether it correctly describes the real estate, and for want of information denies that the description as set out in the amended petition correctly describes the real estate owned by defendant in Brimfield township, Portage county, Ohio. He further denies each and every allegation not admitted to be true.

As a second defense he avers that, under date of January 29, 1943, he gave the plaintiff a receipt as follows: “Received of Stanley Schafer $100 payment on eighty-three acres of land in Brimfield township, $2,900 within sixty days, balance of $6,000 to be paid at $30 per month with interest at 4y2% every six months.” He then denies that this receipt is any contract and agreement for the sale of any particular land in Brimfield township or is a contract for the sale of any land in Brimfield township; that he at any time agreed to sell to the plaintiff any real estate in Brimfield township, free of all liens, claims and incumbrances ; and that he at any time agreed to deliver possession of the premises owned by him in Brimfield township to the plaintiff.

Defendant further avers that at the time plaintiff claims he purchased the premises, they were occupied by a tenant; that plaintiff had full knowledge that these premises were occupied by a tenant; that the tenant refused to surrender possession of the premises ; that plaintiff refused to accept title to any of the premises unless the defendant would cause the tenant to vacate the premises; that it was -impossible for defendant to cause the tenant to vacate' the premises; and that while the defendant did receive $100 from the plaintiff, the $100 has been returned to him. Defendant denies that at any time he entered into a contract in writing with the plaintiff to sell the real estate described in the amended petition and on the terms and conditions set forth in plaintiff’s petition, and avers that if it should appear that any agreement of any kind or character was entered into between the plaintiff and defendant for the sale of such real estate in Brimfield township, such agreement was an oral agreement and in violation of the statute of frauds.

A reply was filed which is a denial of each and every and all and singular, the statements and allegations. contained in defendant’s first, second and third defenses, except such as are admissions set forth in his first amended petition.

The record of evidence submitted in this court consists of some eighty-six pages concerning this transaction to which objection was made by defendant,which objections were preserved and are urged in the trial in this court.

Is the memorandum of agreement, as above indicated, signed by each of the parties, a sufficient note or memorandum under the provisions of Section 8621, General Code, which section provides as follows:

“No action shall be brought whereby to charge * # * a person * * * upon a contract or sale of lands, tenements, or hereditaments, or interest in, or concerning them, * * # unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.” (Italics ours.)

Clearly under such section, if the agreement rested in parol, no action could be brought upon it. This action is not based on a parol contract. The written memorandum or note of the agreement contains the date when executed, and shows partial payment by plaintiff, receipt by defendant of partial payment on farm in Brimfield township, a further amount of $2,900 to be paid within sixty days, when and how balance is to be paid, rate of interest, when interest is to be paid, and total purchase price. Does this note or memorandum set out the essential terms required under the statute of frauds? If not, then this action must fail as the note or memorandum of the agreement must contain the essential terms thereof.

We are frank to say that solution of this question has given us considerable difficulty due to the diversity and irreconcilability of holdings of the courts in this state and throughout the United States generally as well as in the English courts. However, each case stands upon its own bottom. Rarely, if ever, as in construction of wills, does one find two cases identically parallel, and we have examined many eases arising in this state and throughout the country in order to reach a conclusion reasonably satisfactory.

What was the underlying and fundamental reason for the enactment of the statute of frauds and perjuries? Prior to the enactment of the statute of frauds, land could he transferred by parol with livery of seizin. Due to this method of transfer attempts were often made to require transfer by false and fraudulent means, and for this reason the English statute of frauds was enacted requiring a conveyance, or contract to convey, real estate or interest therein ‘to be in writing, and if not so evidenced, such agreements could not be enforced. Subsequent to this enactment, title to real estate could not pass by parol. In other words, if one sold his land or agreed to sell same, such sale, or contract to sell, must be evidenced by writing. • Later, in some instances in equity, part performance or fraud required a modification of the 'strict letter of the statute.

One of the leading cases in Ohio dealing with this question is that of Kling, Admr., v. Bordner, 65 Ohio St., 86, 61 N. E., 148, wherein the court said:

“The memorandum in writing which is required by the statute of frauds (Section 4199, Revised Statutes), is a memorandum of the agreement between parties; and it is not sufficient unless it contains the essential terms of the agreement expressed with such clearness and certainty that they may be understood from the memorandum itself or some other writing to which it refers, without the necessity of resorting to parol proof.”

This doctrine was later approved and followed in the case of Jacobs v. Joseph E. Copp Co., 123 Ohio St., 146, 174 N. E., 353.

In the Bordner case, the court held that the memorandum was insufficient if it did not contain the essential terms of the agreement. The court in that case did not in any way indicate what constituted the essential terms of such a contract, and we have been unable to find any case where the court has specifically stated the required essentials in a contract of purchase and sale of real estate. All appear to hold that such a contract must have included therein the essential terms.

In the case at bar are the essential terms included in the memorandum? In other words, is it essential that it states therein when possession by the seller is to be given, who is to pay the taxes and assessments which are a lien on the property at the time, what sort of a deed is to be executed, whether warranty or quit claim, that a mortgage is or is not to be executed by the purchaser to the seller to secure the balance of the purchase price, and a specific description of the land. If any or all of the above enumerated items are essential terms to be included in the memorandum, then plaintiff is not entitled to specific performance of the contract under the holding in Kling, Admr., v. Bordner, supra.

In the Bordner case, the court quoted Reed on the Statute of Frauds, Section 392, as follows:

“ ‘First, the memorandum must show an agreement, that is to say, a concluded contract; secondly, it must be intended as evidence of such contract; and, thirdly, it must show the whole contract. A contract, then, must be shown by the writing, in which the minds of the parties have met. The memorandum must be so reasonably certain and definite in itself that the contract can be - made out without requiring additional proof in parol. “It must contain such words as will enable the court, without danger of mistake, to declare the meaning of the parties; it must obviate the necessity of going to oral testimony and, relying on treacherous memory, as to what the contract itself was.” ’ ” (Italics ours.)

The court then said:

“No special formality in the execution of the writing is necessary, provided, as held in Anderson v. Harold, 10 Ohio, 399, it is signed for the purpose of giving it authenticity as an agreement; and the consideration need not be expressed. Nor, is it doubted that a valid agreement may be made upon sufficient consideration, to make provision by will out of one’s estate for the benefit of another, or to so dispose of his whole estate ; but no promise to do so, which includes real property, is binding unless it is in writing containing the terms of the agreement expressed with reasonable certainty, and a sufficiently definite identification of the subject matter, as required by the rule above stated.” (Italics ours.)

One might reasonably presume that consideration, the price to be paid, would be an essential term of such agreement. However, the court in the Bordner case, held 'that it was not necessary to set forth the consideration. Other courts have held contra.

Now as to the claim that this note or memorandum is not sufficient under the statute of frauds' in that, first, there is nothing stated therein as to when possession was to be given. There is testimony in the record as to when possession was to be given. We are of the view that the time of taking possession is not such an essential term of the contract that it is required to be included therein. All the details of the transaction need not be included in the contract of sale or contract to sell. The question is: “Was there a sale or contract to sell, and if so is there sufficient in the memorandum to disclose that fact?” Such are the essential terms to be included in the note or memorandum. However, eliminating all the parol testimony and evidence as to possession, and nothing appearing in the memorandum to the contrary, we think we may properly assume that possession was to be given at the time of the final closing of the transaction, to wit, on execution and delivery of the deed, such being-customary when nothing referable thereto is included in the contract. However we think time of possession, if there was an agreement relative thereto, may be established by parol.

As to payment of taxes, we think this item was not an essential term required to be included in the memorandum. Browne on Statute of Frauds (3 Ed.), 273, Section 269, states: “* * * Nor is there any reason why the statute should be held to cover mere arrangements as to the payment of taxes.” We think this item may be established by parol. However, if we are in error concerning the admission of parol evidence to establish this item in the absence of anything in the memorandum to the contrary, it would be the duty of the seller to pay such taxes or special assessments, if any, that were a lien on the property at the time.

As to the character of deed to be executed. We make the same observation as above that in the absence of any provision to the contrary a warranty deed would be required. We think that if any specific agreement was entered into as to the character of the deed to be delivered, such could be established by parol. We are of the view that such details have nothing to do with the question as to whether defendant entered into a contract to convey real estate. These are matters incidental to such contract.

As to whether a mortgage was to be given to secure the purchase money, no such provision is found in the memorandum. Plaintiff is making no complaint on' this score, and appears to be satisfied to execute a mortgage to defendant to secure the deferred payments. Certainly it is not prejudicial to defendant to have this done. In the case of Ruzicka v. Hotovy, 72 Neb., 589, 101 N. W., 328, the memorandum of the agreement did not specify when the remainder of the consideration was to be paid, nor when the transfer was to be made, nor whether the deferred payments were to be secured by a mortgage. The court held that such details might properly be established by parol evidence; and that defendant was not prejudiced by a decree that plaintiff be required to execute to defendant a mortgage to secure the deferred payments. In Barry v. Coombe, 26 U. S. (1 Peters), 640, 7 L. Ed., 295, the court held that a court of equity will supply the ordinary incidents to such an agreement such as the ingredients of a complete transfer or usual covenants. See, also, 27 Corpus Juris, 267 et seq., Sections 318, 319, 320 and 321.

The remaining question relates to the identification and description of the land. This particular question has given us some concern for the reason that the authorities appear to hold that in an action for specific performance of a contract for the conveyance of real estate it is essential that the complaint specifically define the property agreed to be conveyed or at least state sufficient facts to establish the basis upon which such description may be made certain by extraneous evidence. Surely every detail relating to the description of the land is not required. In regard to the question, can the land with reasonable certainty be identified, we think that parol evidence is admissible to show the surrounding circumstances and conditions existing at the time in order that the trial court may be reasonably satisfied. As bearing on this question see 49 American Jurisprudence, 134, Section 115. See, also, Browne on Statute of Frauds (3 Ed.), 402, Section 385, wherein the author states that “the subject matter may in any case be identified by reference to an external standard, and need not be in terms explained.” And at page 413, Section 396, it is further stated that the memorandum need not state the whole agreement in detail. Koch v. Streuter, 218 Ill., 546, 75 N. E., 1049; 25 R. C. L., 651, Section 283. This appears to be the general rule.

Can there be any question in the minds of anyone that there was a concluded contract in the case at bar? That is, that there was an agreement of sale containing the essential terms of purchase and sale. Can there be any question that such was the intention of the parties? If not, what was the purpose of drafting this memorandum? What did these parties intend? Clearly defendant intended to sell his farm and plaintiff intended to buy it. We think that this memorandum contains the essential terms. It does not contain the details following the sale but the essential terms of the sale. The property has been reasonably identified, taking into consideration the surrounding circumstances and conditions as disclosed by the record, the answer of defendant, and the land referred to in the lease. There is nothing before us disclosing that defendant owned another farm of about 83 acres in Brimfield township, Portage county, Ohio, or any other Brimfield township. As further identification the lease involving the lands in question was put in evidence by defendant. Can there be any doubt what land was intended to be sold by defendant? Without hesitancy we say it is the eighty-three acre farm owned by defendant at the time of entering into the contract, located in Brimfield township, Portage county, Ohio; that defendant was to receive $9,000 for such property ; that he was paid $100 down; that a portion of the balance, to wit, $2,900 was to be paid in sixty days; and that the balance of $6,000 was to be paid at the rate of $30 per month to bear interest at 4%% payable every six months. Some of the Courts of Appeals of this state and the Court of Appeals of this district appear to have held contra, but an examination of those cases will disclose no such circumstances and conditions as are presented in the case at bar and no competent oral testimony to aid the courts, and for those reasons those cases in our judgment are not controlling in the case at bar.

As to the inability of defendant to perform by reason of a tenant being in possession, there is evidence in the record that a tenant was on the farm at the time these parties entered into this memorandum, and that plaintiff had full knowledge of that fact. Nevertheless plaintiff is seeking specific performance of the contract in the light of this fact. Furthermore, the written lease is in evidence, introduced by defendant himself, bearing date 1935 to 1937 and conceding that possession could not have been given when this agreement ‘was entered into, under the theory that tenant was by renewal of the lease on the premises for one j^ear from January 1, 1943. This case was heard de novo on March 25, 1944. On January 1, 1944, this cause was pending and the tenant can now claim no right for the year 1944, at this time, superior to plaintiff, even under contract with defendant, as the case was lis pen-dens on and after January 1, 1944. This court hearing the case de novo can examine into conditions as now exist to determine the rights of the parties in suit. Even though possession could not have been secured when the cause was heard in the Common Pleas Court, the condition which prevented such possession no longér prevails at this time. We think this defense is not now available to defendant. There is a line of cases which hold that if a defendant such as in -the case at bar, could not deliver possession until a later period of - time than agreed upon, there might properly be an abatement of the purchase price to the extent plaintiff was damaged by reason of not securing possession. However, we do not think it necessary to resort to this procedure due to the above conclusion.

In the light of the above observations, we have reached the conclusion that this memorandum is sufficient to disclose a sale of, or at least a contract to sell, the eighty-three acre farm in Brimfield township, Portage county, Ohio; and that such memorandum is in compliance with Section 8621, General Code, and we agree with the decree of the Court of Common Pleas.

A decree may be drawn accordingly.

Decree accordingly.

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


author: Matthews, J.

text:
    In re The First-Central Trust Co.: Andress, Exrx., et al., Appellants, v. Carter et al., Appellees.

      (No. 3660
    Decided July 5, 1944.)

      Messrs. Beery, Underwood, Ryder & Kroeger, Messrs. Buckingham, Doolittle & Burroughs, Mr. John O. Frank, Mr. W. J. Laub, Messrs. Mus ser, Kimber & Huffman, Messrs. Nelan & Walsh, Mr. W. E. Pardee, Messrs. Slabaugh, Seiberling, Guinther S Pflueger and Messrs. Wise, Roetsel & Maxon, for appellants.

      Messrs. Brouse, McDowell, May & Bierce, Messrs. Dinsmore é Whittemore, Messrs. Gottwald, Hershey & Hatch and Messrs. Ormsby, Smith é Ormsby, for appellees.

      Mr. Thomas J. Herbert, attorney general, and Mr. Fred E. Renkert, for the Superintendent of Banks.
   Matthews, J.

This appeal brings before the court a controversy between the depositors on the one hand and the shareholders on the other as to the disposition of a balance of $1,243,000 resulting from the liquidation of the assets of The First Central Trust Company and the collections from its shareholders upon their double liability. In the hour of their common peril, depositors and shareholders agreed without a single dissent on the manner of resumption of business by the bank, and the liquidation of the assets and enforcement of double liability. The Superintendent of Banks has proceeded thus far in the liquidation, in accordanee with the agreement embodied in the court order and has paid depositors the full value of their claims, and, apparently, those shareholders who continued as such have had their faith justified by seeing The First Central Trust Company restored to a- condition of financial soundness and prosperity. The removal of the centripetal force of the common peril and time for a more deliberate consideration of the terms of their agreement in the light of developments have produced different conclusions as to its legal effect upon the rights of the parties. The depositors assert that they are entitled, by virtue of their original status as creditors, to the fund in payment of interest upon their claims, whereas, the shareholders assert that the depositors, if otherwise entitled to interest, which they deny, are barred therefrom by their agreement, the action of the Superintendent of Banks and the order of the court approving the terms under which The First Central Trust Company was permitted to resume business.

It is, therefore, necessary to consider what was done in the process of liquidation.

Acting under emergency legislation, passed on February 27, 1933 (Section 710-107a, General Code), the Superintendent of Banks on the following day notified The First Central Trust Company to comply and to advise him of the percentage of deposits that he could safely authorize to be withdrawn. Acting on the information furnished, the superintendent authorized the withdrawal of one per cent. On March 4,1933, the President of the United States ordered all banks closed. The First Central Trust Company remained closed until April 8, 1933, but remained in possession of its assets. On April 8, 1933, the Superintendent of Banks, acting under authority of emergency legislation (Section 710-88a, General Code) effective March 31,1933, appointed a conservator of the bank who took possession of the> assets and continued to hold possession until June 21, 1933, when the superintendent took possession and title to the assets for the purpose of liquidation. While the conservator was in possession, he allowed depositors to withdraw one per cent of their deposits. The Superintendent of Banks continued that policy.

As soon as forms were .prepared and the necessary data assembled, certificates of claim were made available to depositors. These certificates showed the amounts due each depositor as of June 21, 1933, the' date when the superintendent took possession and title. for the purpose of liquidation. In determining this amount, the conventional interest was included to that date in the instances where the contract expressly provided for interest. On demand deposits, no interest was included. - Of course, the one per cent withdrawn was deducted. Not all depositors availed themselves of the opportunity to obtain certificates of claim. Upon obtaining certificates of claim, the depositors surrendered the original evidence of indebtedness and it was marked “canceled” and stamped with the legend “certificate of claim issued in lieu of this book.”

Shortly after taking possession for the purpose of liquidation, the superintendent assessed the shareholders the full amount of their liability.

Early in 1933, the Legislature enacted Section 710-89a of the General Code, in an effort to provide a means for banks that had been closed by the superintendent to resume business. By this section, the superintendent, with the approval of the Court of Common Pleas, is authorized to permit the resumption of business by the bank upon such conditions as he deems necessary. Such conditions might include “reasonable restrictions upon the withdrawal of deposits and the payment of other liabilities, and may also provide for a proportionate reduction of the deposit and other liabilities of such bank and the substitution, in lieu of the amount by which such deposits and other liabilities are reduced, of trust or participation certificates in assets set aside for the payment thereof; provided that certificates shall in no event impose any liability for the payment thereof upon, such bank as reopened except to the extent of the assets so segregated. ’ ’

The section also provides ‘ ‘ that a fair and equitable proportion of the assets of such bank and of the stockholders ’ double liability payments in the possession of the Superintendent of Banks, in proportion to the aggregate amount of their claims, to be ascertained by the court, shall, for the benefit of those depositors and creditors who shall file with the clerk of the court written objections to the proposed resumption of business by such bank on such conditions, be disposed of as the court shall direct or be left in the possession of the Superintendent of Banks to be liquidated.”

Failure to file written objections within the prescribed time was made conclusive that the depositor had consented.

At about the same time there was enacted as a part of Section 710-91, General Code, the provision that upon posting of notice by the superintendent that he had taken possession, “interest on deposits shall thereupon cease to accrue at the rate specified in the contracts of deposit, but without prejudice to the rights of depositors to receive interest, with other creditors, from the date of such posting, out of the funds produced by the liquidation of such bank, before distribution thereof is made to shareholders on their shares.”

The effort to devise a plan, acceptable to the superintendent, for resumption of business culminated in the plan that was finally submitted to the Court of Common Pleas of Summit county and approved by it on the 2nd day of December, 1933. The entire plan was incorporated in the journal entry. Without considering whether the journal entry, incorporating the plan, is a final adjudication and, therefore, binding upon the parties on that ground, we are clear that the parties deliberately made it the final and complete, expression of the agreement of resumption of the bank and liquidation of the assets left with the Superintendent of Banks, and having thus integrated their agreement, the writing supersedes all prior and contemporaneous negotiations on the subject (Restatement of Contracts, 307, Section -228) and their rights must be determined by ascertaining the meaning that would be attached thereto by a reasonably intelligent person “acquainted with all operative usages and knowing all the circumstances prior to and contemporaneous with the making of the integration” (Idem, 310, Section 230).

The plan for resumption of business was rather complicated, but in broad outline it provided for the reduction of the liabilities of the resuming bank to 25 per cent of the liabilities of the bank when the superintendent took control for the purpose of liquidation, and this 25 per cent was to be made available to depositors immediately from funds obtained 'by the superintendent from the Reconstruction Finance Corporation, secured by mortgage upon all the assets of the bank in his hands. The capital stock was reduced to 10 per cent of its existing capitalization. The old certificates of stock were invalidated without, however, affecting the double liability of the shareholders. New certificates for the reduced par value were issued and placed in escrow and, instead of paying for this stock, the shareholders bought debentures of the reorganized bank to the extent of $500,000 payable 15 years after date, and these debentures were delivered to the Superintendent of Banks, the purpose being to avoid disturbing the then status of the double liability. The debentures constituted a debt of tbe reorganized bank, junior to the claims of its depositors and creditors.

Tbe Superintendent of Banks delivered to tbe reorganized bank $1,300,000 in cash, and assets wbicb constituted its capital, surplus and undivided profits.

Under tbe plan, tbe equity, subject to tbe lien of tbe Reconstruction Finance Corporation to secure it for tbe loan necessary to finance tbe plan, in all tbe assets of tbe bank, together with the assessed shareholders’ liability, capital debentures, dividends, if any, upon tbe capital stock of tbe reorganized bank and tbe capital stock itself, was set aside in tbe bands of tbe superintendent for tbe payment of tbe “remaining 75 per cent owed to known depositors and creditors of tbe present bank. Participating certificates in such assets, bearing no interest, will be issued to tbe depositors and creditors by tbe Superintendent of Banks, on request of any one entitled thereto, and such certificates shall be in lieu of tbe amount by wbicb tbe deposit and other liabilities owed to tbe bolder have been reduced. Tbe amounts by wbicb tbe deposit and other liability of tbe resuming bank are so reduced, whether .evidenced by participation certificates or not, shall in no sense be an obligation of tbe resuming bank, and no liability shall be imposed upon it for tbe payment thereof, but such amounts shall be paid only out of tbe assets so set aside in tbe bands of tbe Superintendent of Banks.”

There are certain other phrases used in tbe plan of resumption that will be noticed as having some tendency to clarify tbe intent as to tbe nature and extent of tbe depositors’ rights in or against tbe segregated assets.

Tbe now certificates of stock of $5 par value per share were to be placed with tbe National City Bank to remain there for three years, at tbe end of which if “depositors and creditors have not been fully paid” the certificates were to he delivered to the Superintendent of Banks who was to sell sufficient to “complete full payment to said depositors and creditors.” No shareholder was entitled to any such certificate or earnings therefrom “unless and until their full stockholders’ liability now assessed plus $5 per share for each share of the resuming bank has been paid, or until depositors and creditors have been paid in full.”

At several other places in the plan, certain action with reference to the assets in the hands of the Superintendent of Banks was made contingent upon depositors and creditors being “paid in full.” Clearly, the shareholders were to receive nothing until that took place and there was no provision made for distribution of any surplus after payment of depositors and creditors although it is implied in the provision for an adjustment between shareholders who had paid unequal amounts on their double liability out of any surplus left after depositors and creditors had been “fully paid. ’ ’

The event shows that there is a surplus after paying depositors and creditors the par value of their claims without interest. Whether there is an actual surplus to be returned to shareholders depends upon whether demand depositors are entitled to interest. That is the question presented by this appeal.

While many details were involved in the resumption and liquidation, it is believed that the foregoing statement sets forth the facts essential to be considered in the disposition of the issues presented.

Let us consider first the claim of demand depositors for interest against the assets of the bank in the absence of any surrender of the claim.

We believe the uniform tenor of the cases, both state and federal, is set forth in 7 American Jurisprudence, 536, Section 744. The statement is:

“Accordingly, the general rule is that interest on general claims against an insolvent bank will not be computed for tbe period after tbe bank passes into tbe bands of a receiver or liquidator where tbe assets of tbe bank are not sufficient to pay tbe principal of all tbe debts. If, however, tbe assets of tbe insolvent bank do in fact turn out to be sufficient to meet all demands and leave a surplus over, interest on all claims will, in tbe absence of a statutory prohibition, be allowed out of tbe surplus to tbe creditors for tbe period during 'which tbe insolvent bank has been in tbe bands of tbe receiver or liquidator.”

See, also, Ticonic National Bank v. Sprague, 303 U. S., 406, 82 L. Ed., 926, 58 S. Ct., 612.

And it seems to us that tbe right of depositors to be paid interest is clearly recognized by Section 710-91, General Code, already noted.

Next, can this right to interest be asserted against tbe shareholders to tbe extent of their super-added liability?

By Section '3 of Article XIII of tbe Constitution of Ohio, as in force at tbe time tbe Superintendent of Banks took possession and title, it was provided that “ stockholders of corporations authorized to receive money on deposit shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such corporations, to tbe extent of tbe amount of their stock therein, at tbe par value thereof, in addition to tbe amount invested in such shares.”

We are concerned here with tbe rights of those depositors with whom tbe bank made no express contract relating to interest. Their rights as against tbe bank are fixed by Section 8305, General Code, which provides that “when money becomes due and payable upon any bond, bill, note, or other instrument of writing, upon any book account, or settlement between parties, upon all verbal contracts entered into, and upon all judgments, decrees, and orders of any judicial tribunal for the payment of money arising out of a contract, or other transaction, the creditor shall-be entitled to interest at the rate of six per cent per annum, and no more. ’ ’

This statute was an implied term of the contract of depositors and created an obligation of' the bank to pay interest at the statutory rate after their claims became due and payable. The obligation was contractual.

It is said, however, that a demand was necessary to place the bank in default, and until that transpired, the deposit was not due and payable. However, it is a general rule that no demand is necessary before action is filed on a claim due on demand and that interest runs from the commencement of the action notwithstanding there has been no prior demand. The filing of the action is the demand. 30 American Jurisprudence, 35, Section 46. And when the affair's of a bank are so managed that it becomes insolvent it deprives itself of the power to pay a single depositor without violating the rights of every other depositor and creates a situation requiring state action to enforce the rights of all depositors, and, when the state official takes charge for that purpose, his action is in the nature of a writ of execution running in favor of all creditors and claimants. 7 American Jurisprudence, 513, Section 709. No other remedy is available to any depositor in that situation. Any other demand would be vain. We think all the analogies point to the accrual of interest from that date.

And when the nature of the obligation is considered, that it is for a liquidated amount, and that it arises out of contract, one of the implied terms of which is that interest will be paid upon the amount from the time it becomes due and payable, can it be doubted that it comes within the meaning of “contracts, debts and engagements” of the banks for which shareholders are made liable to an amount equal to the par value of the stock? It is our view that they are clearly liable.

That brings us to a consideration of whether the depositors are barred from interest by the terms of the plan of resumption and liquidation consented to by them, approved by the superintendent and by the court through its journal entry.

We are of the opinion that the plan involved sufficient changes in the legal rights and duties of the shareholders to furnish adequate consideration for the relinquishment of rights by the depositors, but we do not place our decision that the plan was binding upon that ground. We hold that after such a plan has been adopted and acted upon by the parties-depositors, shareholders, Superintendent of Banks and the court, and the liquidation administered for more than ten years, it is too late to question the binding quality of the plan. All parties are estopped regardless of whether the plan contains all the elements of a binding contract. The depositors have received the principal of their claims and the shareholders have also received benefits in the process of administering the estate under the terms of the plan. They have not merely acquiesced, they have actively participated. Certainly, such conduct, relied upon by the thousands of depositors, the shareholders, the Superintendent of Banks, and the court, representing the public, is ample basis for an estoppel.

The binding quality could be placed on a different ground, or, perhaps, stated in different legal nomenclature. Section 90 of Restatement of Contracts, 110, is:

“A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”

We hold, therefore, that the original rights and liabilities of the parties have been modified to the extent expressed in the plan and as construed in the light of the surrounding circumstances, but to no greater extent. We, therefore, turn to a consideration of the plan to determine the extent, if any, it shows an intent to surrender the right to interest out of the assets in the hands of the Superintendent of Banks.

We have quoted such provisions of the plan as seem to shed, or are claimed to shed, some light upon the intent. We find the light very uncertain. At no place is there any statement that the depositors should surrender or waive their rights to interest as against the shareholders, or as against the assets left with the Superintendent of Banks. Those assets were left with him to pay the entire 75 per cent of “the present deposits and other liabilities.” At another place it is recited that such of the new certificates should be sold as are required “to complete full payment to said depositors and creditors.” And in another place, and the only place where it is even intimated that shareholders have any rights in the fund and that is inter se, it is recited that these rights shall only arise “if and when all depositors and creditors of the present bank have been fully paid.”

But it is said the plan provided for the issuance of “participation certificates in such assets, bearing no interest” and that this is an express relinquishment of the claim for interest. A reading of that entire paragraph leads to the conclusion that the reference to certificates and interest was for the purpose of indicating the rights of the depositors among themselves and not as against shareholders, and that the draftsmen of the plan must have had in mind the provisions of Section 710-91, General Code, on that subject. In the last sentence o,f the paragraph the reference is not to the amount stated in the certificates, but rather to the amount by which the deposits and other liabilities of the resuming bank had been reduced which would include interest and the assets set aside in the hands of the Superintendent of Banks, which constituted the fund out of which payment was to be made. To say the least, this language leaves in doubt the intention of the parties. Notwithstanding the use of the word “interest” in the manner indicated, it cannot be said that it is a direct and unequivocal waiver of the right to interest upon the deposits if funds were available to pay it.

It is significant that the depositors did not agree to accept certificates. They were made available if they chose to request them.

It is also significant that the court in providing for the issuance of “trust or participation certificates” omitted the phrase “bearing no interest.” And the characterizing of the documents as trust or participation certificates indicates that the dominant thought was to express the proportionate share, rather than the amount.

Furthermore, as these assets were set aside for depositors and they were made the beneficiaries to whom alone trust certificates were to be issued, a strictly legal interpretation would lead to the conclusion that no matter how large a sum was realized, depositors would be entitled to all of it, even though they received more than their total claims with interest. There is only the faintest hint that shareholders under any circumstances would have any right to any part of these assets.

Of course, the truth is that no one thought the assets would produce- the principal of the depositors’ claims and that accounts for the indefiniteness of the plan on this subject.

The third and fourth paragraphs of the syllabus of White Co. v. Canton Transportation Co., 131 Ohio St., 190, 2 N. E. (2d), 501, are as follows:

“Where a waiver comes.after a breach of the original contract by the party claiming the benefit of the waiver, it should receive, not only careful but serious consideration at the hands of courts, as such an arrangement is diametrically opposed to sound business principles.
“He who affirms a waiver must prove it, and in so doing he must prove a clear, unequivocal, decisive act of the party against whom the waiver is asserted, showing such a purpose or acts amounting to an estoppel on his part.”

See, also, Allenbaugh v. City of Canton, 137 Ohio St., 128, 28 N. E. (2d), 354.

In 27 Ruling Case Law, 910, Section 6, it is said:

“In accordance with the general rule as to the burden of proof, it devolves upon the party claiming a waiver to prove the facts on which he relies for such waiver. A presumption of the relinquishment of a known right cannot be rested on a presumption that such right was known. A waiver must be clearly proved, but this may be effected by various species of evidence. Thus it may be proved by express declaration or agreement, or by acts and conduct manifesting an intent and purpose not to claim the supposed advantage. ’ ’

As the depositors had a right to interest upon default, the burden of proof rested upon those claiming its relinquishment to prove it by at least the greater weight of the evidence. We are of the opinion that they failed to sustain the burden and that, therefore, the trial court was right in holding that the fund in the hands of the Superintendent of Banks should be devoted to the payment of interest on the deposits.

As the appellants agreed to a reduction of this appeal to one of law only, it will be so considered, and the judgment of the trial court affirmed.

Judgment affirmed.

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

Ross, P. J., Hildebrant and Matthews, JJ., of the First Appellate District, sitting by designation in the Ninth Appellate District.


text:
    Severns, Exr., Appellant, v. Boylan, Appellee.

      (No. 3650
    Decided July 19, 1944.)

      Messrs. Hutchison & Firestone, for appellant.

      Messrs. Gottwald, Hershey & Hatch, for appellee.
   Matthews, J.

The subject matter of this action consists of several certificates of deposit in The YVm. H. Evans Building & Loan Association, a certificate of stock of that association and a certificate of stock of The Ohio Edison Company. At the second trial, the record of which is under review on this appeal, the parties stipulated that the only issue was ownership and possession of these certificates. By this stipulation, the action was, in effect, reduced to an action in replevin (Section 12052, General Code) and a jury was impaneled to decide the issue. At the close of all the evidence all parties moved for an instructed verdict. The court directed a verdict for the defendant — the appellee in this court — and entered judgment in her favor as to all the property involved. This appeal brings under review that judgment.

Before entering upon the task of analyzing the evidence, certain preliminary matters should be noticed as they bear upon the quantum of proof required of the plaintiff to, discharge the burden upon him. ,

This is not an action to recover for breach of contract to which the defense of fraud has been interposed. Cases such as Thompson v. Citizens Natl. Bank of Adams, N. Y., 22 C. D., 131, 13 C. C. (N. S.), 515, affirmed in 82 Ohio St., 446, 92 N. E., 1125, on the necessity of setting out the facts of fraud in the pleading, have no application.

Nor is the plaintiff’s action one based on fraud, A complete cause of action could be pleaded without mentioning fraud. Citations such as 19 Ohio Jurisprudence, 495, Section 217, and 29 Ohio Jurisprudence, 1254, Section 589, stating the rules of pleading applicable to cases based on fraud, are irrelevant. The fact that the pleader indulged in too great particularity does not change the nature of his rights.

This is an action, based on right of ownership and possession. It is true that in the process of proving ownership and right to immediate possession, fraud may appear — but the plaintiff could recover without any evidence of fraud, provided he proved title and right to possession in some other way. The case cannot be placed in that category and decided by the application of the rules peculiar to that class.

However, if the ultimate issue in this case were fraud, we do not think it would increase the plaintiff’s burden. Counsel rely on McAdams v. McAdams, Sr., 80 Ohio St., 232, 88 N. E., 542, and Simmons v. Becker, Admr., 63 Ohio App., 374, 26 N. E. (2d), 939, to support them in their contention that the plaintiff could recover only by proving fraud by clear and convincing evidence. But those were cases in which the plaintiff was seeking to have the court enter a decree setting aside a solemnly executed written conveyance which he had delivered with the intention of transferring title. Iii that class of cases a chancellor does require clear and convincing evidence as a prerequisite to granting a decree, divesting title so solemnly and deliberately conferred.

If fraud were the basis of this action, it would fall in the general class of actions at law for fraud, and the plaintiff would discharge the burden of proof by making fraud appear by the preponderance of the evidence.

In 19 Ohio Jurisprudence, 519, Section 244, it is said:

“It seems, however, a logical view to take, that in the- ordinary case of an action based on fraud, such as a claim for damages because thereof, a preponderance of the evidence is sufficient, while in cases in which it is sought to set aside or reform a written contract because of the fraud, that clear and convincing proof is necessary, in accord with the well-settled rule that written instruments should not be rescinded or set aside except upon proper allegations, which are supported by evidence of a clear and convincing character.”

See, also, 24 American Jurisprudence, 118 et seq., Section 278.

Counsel argue that the plaintiff’s action is based on rescission for fraud, and that that fact brings it within the class requiring clear and convincing evidence. As we view it, rescission alone is not sufficient to bring the case within that class. The distinctive characteristic of that class and the one that imposes the higher degree of proof is the nature of the relief sought. If it is necessary to seek the aid of the court to set aside a conveyance, to cancel a written instrument, to remove a cloud or otherwise protect the owner, many courts hold that clear and convincing evidence is required to secure such special relief. But where the title to personal property transferable by delivery is obtained by fraud, tbe defrauded' owner requires no special relief. Indeed he need not resort to court at all. He can rescind by bis own act. If be can secure possession of bis property, there is no occasion for filing a law suit. If be cannot, tbe only action necessary is one to recover possession. Even a demand for tbe return is not necessary before action.

In 46 American Jurisprudence, 34, Section 57, it is said:

“A demand for the return of property prior to tbe institution of a suit to recover its possession is not necessary where tbe possession of property was acquired tortiously. So where goods have been obtained by fraud by a purchaser, or otherwise unlawfully obtained, tbe seller or true owner may, without previous demand, maintain replevin for tbe goods against any person not bolding them as an innocent purchaser for value. ’ ’

While in tbe view we take of this case, tbe quantum of proof required is not material, we state our views-on tbe subject in order that our conception of tbe nature of tbe case, as disclosed by the record, may be made to appear more clearly.

The plaintiff’s testatrix, in order to secure duplicate certificates from tbe issuers, was required to and did file affidavits with the issuers. These affidavits were offered in evidence and excluded on tbe objection of tbe defendant. No error was committed in so doing. They were clearly self-serving, and we can think of no theory which would make them admissible as evidence of tbe facts therein recited.

On cross-examination of tbe defendant, she stated that her. husband bad delivered these certificates to her and at tbe time told her that tbe plaintiff’s testatrix bad given them to him to apply on fees, that be bad taken care of her business for many years, and she gave him this stock to apply on her account. On objection, the court admitted this evidence for the purpose of showing a defect in the title and excluded it for all other purposes. We find no error in this.

To begin with, it appears to be a confidential communication between husband and wife, not in the known presence of a third person competent to be a witness. Under Section 11494, Gfeneral Code, she would not be a competent witness.

Assuming her competency as a witness, the testimony is hearsay and falls within no exception to the rule of exclusion. It is true that declarations.by one in possession which characterize his possession are held to be admissible as part of the res gestae, even though self-serving, but this exception has never been held to be broad enough to include narration as to the source of title. In the annotation to the case of Freda, Admx., v. Tischbein (174 Mich., 391, 140 N. W., 502), in 49 L. R. A. (N. S.), 700 at 708, it is said:

“All the cases are in accord in holding that the res gestae rule does not extend so far as to include declarations as to source-of title. Such declarations are not properly a part of the res gestae of the possession, since they are not explanatory of the possession, but of the method of obtaining title, which is a past event.”

To the same effect is Hopkins, Trustee, v. Heywood, 86 Vt., 486, 86 A., 305, 49 L. R. A. (N. S.), 710.

The defendant was -permitted to testify to a conversation with the testatrix. As she was called by the plaintiff, her incompetency as a witness was waived. The defendant testified that the testatrix told her that Judge Boylan, through whom defendant claimed title was “just like a son to her and she was going to leave all of her property to him.” The defendant relies upon a claim of transfer by testatrix to Judge Boylan inter vivos. Her statement has no tendency to prove any such transfer. It states an intention to convey by will which, of course, could not take effect until- testatrix’s death, and, as her last will contained no such provision, it never took effect.

Now, what does this record show?

The plaintiff’s testatrix, Flora A. Kintz, died on August 17, 1940, at the age of 85 years. The defendant’s husband, Edward H. Boylan, who was an attorney-at-law, had been her legal adviser, business agent and intimate friend for more than twenty years just prior to his death on August 10, 1935.

During the years 1922, 1923 and 1924, Flora A. Kintz made five deposits of $500 each and one of $750 in The ¥m. H. Evans Building & Loan Association, and received from it certificates of deposit, all of which were payable to her except the one for $750, which was payable to Flora Kintz or John Kintz, who was her husband and who died many years before her death. In 1924, Flora Kintz purchased five shares of paid up capital stock of The ¥m. H. Evans Building & Loan Association and received a certificate therefrom in which it was recited that she was the owner of the five shares of stock. The record does not show that Edward H. Boylan had anything to do with the making of these deposits or securing these certificates of deposit or the certificate of stock.

On August 27, 1930, Flora Kintz bought ten shares of the 7% preferred stock of The Ohio Edison Company and received a certificate thereon reciting the facts of her ownership. The record does not show that Edward H. Boylan had anything to do with this purchase.

In October, 1937, Flora Kintz notified The Ohio Edison Company that her certificate' for ten shares of its stock had been lost, destroyed or stolen, and upon her making- affidavit that she was still the owner and giving- an indemnity bond, a duplicate certificate was issued on January 29, 1940.

In April, 1938, Flora Kintz notified The Wm. H. Evans Building & Loan Association that the certificates of deposit which it had issued to her had been lost, destroyed, or stolen, and upon her making an affidavit of continued ownership and giving an indemnity bond duplicate certificates were issued to her in April, 1938.

So far as the record shows no one during- the lifetime of Flora Kintz challenged her title to the property represented by these certificates. The Ohio Edison Company and The Wm. H. Evans Building & Loan Association .paid dividends to her regularly on the corporate stock. She collected interest regularly on the certificates of deposit as it accrued and finally was paid most of the principal. Neither Edward H. Boylan nor the defendant at any time during the life of Flora Kintz asserted any right of any description to any of this property.

Shortly after Flora Kintz’s death, the defendant appeared with these certificates and for the first time asserted title to them. In explanation of the long delay in asserting- title, the defendant, in violation of Section 11494, General Code, and only by the grace of the plaintiff’s waiver of the provisions of Section 11495, General Code, testified to the confidential hearsay statement of her husband, directing- her to place the certificates in her safe deposit box and not transfer them, that he wished Mrs. Kintz to have the income from the stock as long as she lived. And, notwithstanding, the waiver of the bar of Section 11495, General Code, the only explanation that she could give of her husband’s possession of these certificates was the statement of Mrs. Kintz that she intended to make a will in his favor, which had no tendency at all to show a gift or transfer in praesenti. The only other evidence that is suggested tends to prove a transfer of title is her testimony that Mrs. Kintz owed her husband for services rendered and money advanced. This claim was presented as though it had been kept in the form of a book account, but it is rather clear that the witness prepared it from information derived from various sources and that it has not the reliability of an account kept day by day. No book of any sort was presented and it was admitted that no account existed showing a credit on account of having received these certificates. But even assuming that there was an indebtedness, its existence would have no tendency to show a transfer of the title to these certificates. The most that could be claimed would be that the attorney might have a possessory lien on the certificates to secure payment of his fees, but, on this record, we do not think even that right existed. 5 American Jurisprudence, 388 et seq., Section 209 et seq.

In. an effort to show that the defendant was a purchaser for value, she testified that she had supplied the money and signed notes and mortgages for her husband. No dates or amounts were given and no corroborative evidence furnished. It all rested in vague generalities of acts between husband and wife, not in the known presence of a third person.

This record shows clearly that Flora Kintz owned these certificates, that Edward H. Boylan was her attorney, agent and business adviser, that while that relation existed, he came into possession of them and they bore the blank endorsement of Flora Kintz, and that the circumstances under which, and the purpose for which, Edward H. Boylan got possession are undisclosed. It is not disclosed even that he obtained possession by and with her consent.

Assuming that Mrs. Kintz delivered these certificates to Edward H. Boylan with intent to transfer title to him, the burden would be upon him and those claiming under him, and having no better right than he had, to prove that no undue influence or undue advantage had been taken. 5 American Jurisprudence, 289, Section 50. The rule is fundamental to the relation of attorney and client. That burden has not been sustained in this case.

Assuming that Edward H. Boylan had a voidable title or had been clothed with indicia of title, or authority by Mrs. Kintz, through the endorsement of her name and the intentional delivery of the certificates to him, the defendant could defend against the right of the plaintiff to rescind the voidable title by proving and only by proving that she was a bona fide purchaser for value. This she attempted to do. We are of the opinion, however, that the circumstances to which she testified show more clearly that she knew the title was defective than otherwise. Her testimony on this subject and on the subject of the consideration for the transfer is indefinite and unconvincing, and insufficient to bar the clear pre-existing title of the plaintiff’s testatrix. We think it manifest that the court erred in giving a preponderating weight to this evidence.

We are of the opinion that the verdict and judgment are manifestly against the weight of the evidence.

For these reasons, the judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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

Ross, P. J., Hildebrant and Matthews, JJ., of the First Appellate District, sitting by designation in the Ninth Appellate District.


author: Montgomery, P. J.

text:
    Leibovitz, Appellee, v. Central National Bank et al., Appellants.
    (No. 19439
    Decided April 24, 1944.)

      Mr. J. G. Negin, for appellee.

      Messrs. McKeehan, Merriclt, Arter & Stewart, Mr. C. M. Horn and Mr. W. J. Klotzbach, for appellants.
   Montgomery, P. J.

. The amended petition filed in the Court of Common Pleas sought recovery for damages alleged to have been sustained by the plaintiff by reason of the claimed wilful, wrongful and malicious interference by the defendants with an agreement to sell a certain cigar and candy stand located in the real estate of the defendant bank, and that as a result of such interference the plaintiff was compelled to and did sell such business for a sum of $2,025 less than the amount which she would have received except for such interference.

The answer was in effect a general denial. The cause being submitted to a jury, a verdict was returned for $2,025 and judgment having been entered upon the verdict an appeal was perfected to this court.

It is contended, (1) that final judgment should be rendered for the defendants-appellants on the ground that the evidence fails to show any existing contract between the vendor and the ultimate vendee and fails further to show that the negotiations between them had ripened into an agreement or that such negotiations would have resulted but far the alleged interference, and (2) if appellants be not sustained in this contention then there should be a reversal and remanding of the cause for errors alleged to have occurred in the course of the trial.

Although much of the oral argument and briefs of counsel are taken up with the discussion of the evidence and of the law applicable to existing contracts, suffice it to say that the evidence in the instant case fails to show any existing or consummated contract, which fact is in effect conceded by the appellee.

As we view it the cause did proceed to trial on the question of the alleged interference with the consummation of the contract.

We find ourselves in complete accord with the trial judge in the charge to the jury upon this proposition and, the affirmance of the judgment being inevitable, an opinion might well be regarded as superfluous except for the fact that so far as we know the question is new in Ohio and consequently deserves some comment from this court.

We think the law is stated correctly in the case of Lewis v. Bloede, 202 F., 7, which is a judgment of the Circuit Court of the United States for the District of Maryland. The first branch of the syllabus in that case is:

“The doctrine being well established that an action in tort will lie for -a wrongful interference with the performance of an executory contract, the same principle will sustain an action for wrongfully preventing-one from entering- into a contract, where the evidence establishes with sufficient clearness that but for such interference the contract would have been made.”

That court, in its opinion as found on pages 16 and 17, said:

“If A makes a definite proposal to B to enter into a contract, the character, terms, etc., of which are sufficiently definite to be capable of acceptance, and, while B is negotiating, or after he has determined to accept the proposal, 0 maliciously interferes and prevents the acceptance on the part of B, or procures a withdrawal of the proposition by A, by reason whereof loss is sustained, can it be said that the party who is in-injured by such interference has sustained no legal wrong, and that by reason thereof has sustained no injury — that is, loss? Is there not in such case damnum et injuria, which constitute the elements of actionable wrong?”

That court answered its query in the affirmative and we also answer that query in the affirmative and find ourselves in complete accord with the reasoning of that court.

Counsel direct our attention to the case of Louis Kamm, Inc., v. Flink, 113 N. J. Law, 582, 175 A., 62, 99 A. L. R., 1, where the same rule is laid down and in that case the first branch of the syllabus as reported in A. L. R., is:

“Maliciously inducing a person not to enter into a contract with another, which he would otherwise have entered into, is actionable if damage results.”

And of interest are the annotations to this case appearing on page 12 et seq., and particularly on page 20, of 99 A. L. R.

Tested by this rule, to what conclusion must we arrive in the instant case under the evidence? True there is some conflict in the evidence but, nevertheless, the verdict of the jury was not against the weight of the evidence and the jury was justified in believing the testimony adduced by and on behalf of the plaintiff.

This was to the effect that she sought $3,500 for the business and advertised it for sale. A prospective purchaser, who became the ultimate purchaser,. came to her home and offered $2,800 for the business. Thereafter this purchaser got in touch with the superintendent of the defendant’s building in order to get facts as to tenancy. Thereafter this purchaser lost interest in the $2,800 offer.

Plaintiff testified that she knew of the purchaser’s visit to the building superintendent and that after that the plaintiff could not even get in touch with the purchaser. Plaintiff’s evidence is clear that she protested not only to the building superintendent but also to the general counsel of the defendant bank and to a Mr. Holsman whom she described as comptroller of the Central National Bank. That to them she detailed the proposal of the purchaser, the interference with it by the building superintendent and her inability to get any action from him. According to her story they protested their inability to do anything and neither of them took the witness stand to deny the plaintiff’s claim. Counsel for the plaintiff also submitted his professional statement in lieu of evidence in which he told' that he went to Mr. Porter, the building superintendent, discussed the $2,800 offer and the refusal of the bank to permit the purchaser to pay and protested the. injustice of the attitude of the bank but got nowhere. Mr. Porter, who took the witness stand, did dispute the most of this testimony, but he admitted that they were anxious to get rid of the plaintiff and that they did not feel that she had anything to sell which justified any such price. His testimony indicated that they wanted to get rid of her because they were not satisfied with the character of the stand and the matter of cleanliness and environment. Such a position is understandable and,perhaps commendable, but it could not be any concern of the banking institution as to how ranch was paid for the business by a purchaser whom it was willing to accept as a tenant. Not only did it accept as its tenant the purchaser but also fixed the price which should be paid and which was paid for the business. In our judgment there can be no doubt, under this record, of the interference and improper interference by the representative of the bank with a contract with which it and he had no concern.

It follows that defendant was not entitled to a directed verdict and is not entitled to final judgment at our hands.

The other questions seem to us to require but little consideration.

It is argued that plaintiff is prevented by Section 8384, General Code (the statute of frauds), from maintaining this action. That section might be available to the defendant in an action between the parties. It is a mere defense. It is not a matter of substance. With it the defendant in this instance can have no concern because in an action based upon the contract itself such a defense might not have been alleged or insisted upon. It is an altogether different thing from the preventing of the enforcement of a void contract.

It is argued further that the trial court erred in failing to charge the jury explicitly on the matter of the elements for the negotiation of a contract and the elements necessary to establish malicious interference. There was nothing erroneous in the charge of the court. True it might have been more ample and complete but when, at the conclusion of the general charge, counsel were asked if there were any errors or omissions to which they desired to call the attention of the court, the record shows that counsel for the defendant did ask for a more specific charge as to the question which we have heretofore discussed, to wit, the necessity of proof that “except for such interference the contract would have been consummated,” and this additional instruction the court gave. Nothing was asked from the court of the matter of which complaint is now made.

We find no error in this record and the judgment of the trial court will be affirmed.

Judgment affirmed.

Sherick and Doyle, JJ., concur.

Montgomery, P. J., and Sherick, J., of the Fifth Appellate District, and Doyle, J., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.


author: Hildebrant, J.

text:
    The State, ex rel. Dawn, Appellee, v. Kyle et al., Appellants.
    (No. 6390
    Decided May 8, 1944.)

      Mr. Leo A. Burke, for appellee.

      Mr. John D. Ellis and Mr. Ed. F. Alexander, for appellants.
   Hildebrant, J.

After some twenty years service as a member of the police department of the city of Cincinnati, Ohio, relator was discharged on or about October 5,1942, under circumstances which did not preclude his receiving the pension provided by section 45 of the rules adopted by the board of trustees of the police relief fund of the city on August 31,1942, and he,was accordingly placed on the pension roll.

In the court below, relator obtained a writ of mandamus compelling the trustees, respondents, to pay bim the increased monthly amount provided by the amended rules adopted on August 30, 1943, from and after that date.

The appeal is upon questions of law.

The petition alleges in substance a duty on the part of the respondents to pay the' increased pension and their failure to do so, “although the defendants, as such board, have been requested by the relator to do so.”

The case was disposed of in the court below on an interpretation of sections 45-48 and 51 of the rules adopted on August 30, 1943, as compared with similar sections in existence on October 5, 1942, adopted August 31, 1942, under which relator’s pension rights became fixed. Interpretation of the words “retired” in section 48 and “retirement’'’ in section 45 of the rules adopted on August 30,1943, was made. The bill of exceptions contains only the rules of August 31, 1942, and August 30, 1943, and a pension check of relator.

Section 51 of the miles of August 30, 1943, provides:

“In case of controversy as to the application or interpretation of any rule in any particular case, the board may hear testimony and argument and determine the controversy. Its determination shall be final.”

The record is so meager as to be inadequate for intelligent review.

It appears that relator ignored rule 51 and precipitated the respondents into court without first having invoked the procedure provided by such rule.

The writ of mandamus is an extraordinary writ, and will not be issued as a substitute for existing remedies. While the petition alleges a bare request for increase and a failure to pay, it fails to allege a failure or refusal to pay after hearing or deliberation as contemplated by section 51, above quoted.

Where a condition precedent to the right to compel performance of a duty is imposed, it must appear that such condition has been performed. 25 Ohio Jurisprudence, 1184, Section 249. Nor will the writ be granted in anticipation of a supposed omission of duty, however strong the presumption that respondents will refuse to perform the duty involved. 25 Ohio Jurisprudence, 1000, Section 26. See, also, Stale, ex rel. Juhlman, v. Conners, 122 Ohio St., 355, 171 N. E., 589.

It appearing that relator failed to avail himself of the remedy afforded by rule 51, quoted supra, and that such procedure is a prerequisite to the granting of the drastic relief prayed for, the judgment of the Court of Common Pleas is reversed, and the cause remanded with instructions to dismiss the petition.

Judgment reversed.

Ross, P. J., and Matthews, J., concur.


author: By the Court.

text:
    First Discount Corp., Appellant, v. Daken, Appellee.

      (No. 6421
    Decided November 13, 1944.)

      Mr. Cedric Vogel, for appellant.

      Mr. Lawrence B. Swartz, for appellee.
   By the Court.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county, affirming a judgment of the Municipal Court of Cincinnati, entered in conformity to the verdict of a jury in favor of the defendant on his cross-hill of particulars.

The plaintiff brought an action against the defendant to recover on a note executed by the defendant. The amount' claimed was $260.65, with interest and costs. A statement of defense and cross-bill of particulars was filed by the defendant, in which the defendant, as a defense to the payment of the note, charges that he executed the note sued upon and a chattel mortgage upon aji automobile to secure the payment of such note; that the plaintiff mortgagee took possession of such automobile by virtue of the terms of such mortgage upon default in payments upon the note, and sold the same, without notice to defendant, at private sale, “without exercising good faith in said sale, and for a sum, and with a total disregard of defendant’s rights therein, at a price far below the market value of said automobile at the time, which price was wholly unfair and unreasonable.” Defendant further alleges that if plaintiff had sold such automobile at a fair and reasonable price, plaintiff would have received enough to discharge the obligation of defendant upon such note.

In his cross-bill of particulars, defendant makes substantially the same allegations as to the lack of good faith of the plaintiff mortgagee in the sale of the automobile, alleging that the automobile was sold for the sum of $450, and that the “actual market value” of the automobile at the time of sale was $800, and that he was damaged in the amount of $350, for which amount defendant prays judgment.

The statute, Section 1558-12, General Code, does not require a reply in the Municipal Court of Cincinnati. No reply was filed by the plaintiff.

Rule XIV of the Municipal Court of Cincinnati, however, provides in part: “In first class cases affidavits of reply shall be filed on or before the fifth day after rule day for statement of defense.”

The cross-bill of particulars praying for a sum in excess of $300 caused this case to he a first class case, certainly as long as the cross-bill of particulars praying for affirmative relief, within the purview of such first class case, remained upon the files of the court. See Section 11583, General Code; Kimmel v. Pratt, 40 Ohio St., 344; Alflen v. McClenaghan, 32 Ohio App., 43, 50, 167 N. E., 601; Bryant v. Swetland, 48 Ohio St., 194, 208, 27 N. E., 100.

Rule II of the Rules of Practice of the Municipal Court of Cincinnati defines a first class case to include one in which the amount sought to be recovered exceeds $300.

However, the case was tried as if a reply had been filed by plaintiff. The allegations of the cross-bill of particulars were taken to be denied and the defendant did not reply upon the failure of plaintiff to deny the allegations therein.

The case will be considered by this court, therefore, as if a reply had been filed to the cross-bill of particulars, denying the allegations thereof adverse to plaintiff, especially as the absence of a reply would not be prejudicial to the plaintiff. Northern Ohio Power & Light Co. v. Smith, 126 Ohio St., 601, 186 N. E., 712.

By so holding, however, it is not to be inferred that there may not be instances in which failure to comply with the rules of practice in the Municipal Court may not be decisive of the issues presented to this court, Section 1558-27, General Code, non constat.

It appears from the evidence that the plaintiff mortgagee took possession of the mortgaged automobile by virtue of the terms of a mortgage permitting repossession and public or private sale, with or without notice, and that the mortgagee could be a purchaser at such sale. The mortgagee communicated with only four dealers in automobiles and sold to the highest bidder at private sale. There is evidence that the price paid was far below the fair retail market value of such a used car.

There are no rules of law requiring any specific acts by a mortgagee selling mortgaged property by virtue of the enabling provisions of the mortgage contract. The law is very general in its requirements. The defendant alleges that the plaintiff acted in bad faith in the manner in which it conducted the sale of the automobile.

The defendant claims that the sale should have been made on notice to the,, public and not merely by communicating with dealers alone. This merely is an element for the consideration of the trier of the facts in determining whether the mortgagee acted in good faith and used reasonable diligence in securing the best price.

Fraud is never presumed, but facts must be alleged and proved showing the existence of same. 19 Ohio Jurisprudence, 494, Section 217, and page 502, Section 227; Isaac v. American Surety Co. of N. 7., 61 Ohio App., 47, 49, 22 N. E. (2d), 280; Buckeye State Bldg. & L. Co. v. Schmidt, 131 Ohio St., 132, 139, 2 N. E. (2d), 264.

There is no presumption of negligence either against the plaintiff or defendant, hut facts must be alleged and proved showing that there was a failure to exercise that care which a reasonably prudent person is accustomed to use under the same or similar circumstances. 29 Ohio Jurisprudence, 625, Section 149, and page 627, Section 150; Martin, Jr., v. Heintz, 126 Ohio St., 227, 184 N. E., 852; Norris, Exrx., v. Jones, Reer., 110 Ohio St., 598, 144 N. E., 274.

Bad faith is a species of fraud. 19 Ohio Jurisprudence, 321, Section 2.

The burden of proving fraud or bad faith rests upon the party alleging fraud, bad faith, or negligence, subject only, to the rule prevailing in the case of an inference of contributory negligence arising in plaintiff’s pleadings or evidence. 19 Ohio Jurisprudence, 507, Section 232; 29 Ohio Jurisprudence, 650, Section 165.

Where a mortgagee takes possession of an automobile under and by virtue of the provisions of a chattel mortgage and sells such automobile at private sale, under a power therein given, it is the duty of such mortgagee to use reasonable diligence to obtain a fair price for such automobile. 14 Corpus Juris Secundum, 1029, Section 373; 10 American Jurisprudence, 880, Section 257; 7 Ohio Jurisprudence, 435, Section 113; Crocker, Admr., v. Associate Investment Co., 56 Ohio App., 136, 10 N. E. (2d), 153; Clark v. Studebaker Corp., 35 Ohio App., 54, 171 N. E., 602; Mutual Finance Co. v. Holian, 35 Ohio Law Abs., 134, 39 N. E. (2d), 546; Porter v. Toledo Wimsett Finance & Thrift Co., 13 Ohio Law Abs., 509; Boettger v. Bay City Shovels, Inc., 71 Ohio App., 413, 50 N. E. (2d), 277. The burden of proving that the mortgagee failed to use reasonable diligence in securing a fair price for the automobile, where sale is to a person other than the mortgagee or one in privity with him, and that he, therefore, acted in bad faith, rests upon the mortgagor. This is shown by the authorities mentioned. We are not here required to apply the rule applicable where the mortgagee is the purchaser at his own sale.

The fact that the mortgagee did not secure, in such private sale of the automobile, its full and fair market value is not conclusive evidence, in itself, that such mortgagee was guilty of bad faith, but is to be taken into consideration by the trier of the facts, with all other evidence in the case, in determining whether the mortgagee acted in good faith and used reasonable diligence to secure a fair price for such automobile. In 14 Corpus Juris Secundum, 1034, Section 381, it is stated:

‘ ‘ Mere inadequacy of the price will not invalidate the sale, but the mortgagee is liable for the deficiency if he fails to exercise reasonable diligence to sell for the best price obtainable.”

See, also, 10 American Jurisprudence, 882, Section 259.

The plaintiff advances only three assignments of error: (1) that the judgment is against the weight of the evidence and contrary to law; (2) error in the admission of evidence; (3) other errors apparent on the record. In its brief, however, plaintiff claims error in the charge of the court.

An examination of the evidence submitted fails to sustain the claim that the verdict is not sustained by substantial evidence, or that it is against the manifest weight of the evidence.

No serious claim is made upon the second assignment of error, dealing with the admission of evidence, which does not seem to be considered in plaintiff’s brief. No error appears in the court’s ruling upon the evidence prejudicial to appellant. The most serious difficulty arises in the consideration of the charge of the court, of which plaintiff complains in its brief.

It is apparent that the plaintiff could, at small cost for advertising, have submitted the automobile to the public at large. Instead of doing so, he merely called four dealers and took the highest price offered. There is also substantial evidence justifying the conclusion that the automobile was worth more than was paid by one of such dealers. The issue presented, however, was not merely whether the best price was secured, but whether the mortgagee acted in bad faith in its conduct of the sale, which could be shown by evidence indicating it failed to use the care which a reasonably prudent person is accustomed to use under such circumstances, to secure the best price obtainable.

The evidence of a low price is only one factor to be considered in connection with all other evidence indicating a lack of reasonable diligence and bad faith.

The court charged as follows:

“So you see, members of the jury, that the note and mortgage being admitted, the execution of the note and mortgage being admitted, the issue of fact for you to determine in this case is whether or not the plaintiff obtained the full value of this mortgaged automobile. That is the sole issue that you members of the jury will have to decide, whether the plaintiff, the First Discount Corporation, obtained full value.
“Where a mortgagee, that is the plaintiff in this ■case, sues to recover a deficiency on a chattel mortgage after having sold the property secured by the mortgage, the sale being made under the authority contained in the mortgage and without judicial sanetion, the mortgagor challenging the fairness of such sale, the burden is upon the mortgagee, the plaintiff in this case, to show that he has performed his full duty for the defendant in getting the best price obtainable, and the burden is upon the plaintiff in this case to show that the sale was fairly conducted and that the price obtained was not so inadequate as to raise the presumption of bad faith.”

In the first place, the charge was erroneous, to the prejudice of the plaintiff, in that it limited the issues in the case. The inadequacy of price was not the sole or real issue in the case. The issue was whether the plaintiff mortgagee, in conducting the sale of the automobile, had used due diligence to secure the fair value of such automobile at the time of sale, or in other words, whether it had acted in good faith in conducting such sale. This issue was raised both in the affirmative defense set up in the answer and in the cross-bill of particulars. This portion of the charge is addressed to the duty as to proof resting upon the plaintiff in sustaining the bill of particulars. The plaintiff’s bill of particulars contained a simple cause of action, stating a claim for balance due on a note. If the evidence introduced by the plaintiff or defendant developed the repossession of the automobile, the private sale to the. mortgagee itself at a grossly inadequate price, the authorities indicate that a burden would be cast upon the mortgagee to remove an inference of bad faith arising from, such facts. The authorities heretofore noted sustain this conclusion. See, also, 7 Ohio Jurisprudence, 436, Section 113. But, in the absence of an affirmative defense or cross-bill of particulars charging bad faith or lack of diligence, it not being made to appear that the sale was made to the mortgagee at such grossly inadequate price, the defendant should not be permitted to introduce evidence of lack of diligence. As indicated heretofore, both fraud or bad faith and lack of diligence or care are affirmative charges in the absence of sales to mortgagees and the burden rests upon the one who asserts them to prove their existence. In 14 Corpus Juris Secundum, 1043, as a part of Section 390, it is stated:

“* * * but the burden of proving matters in defense, such as fraud in the foreclosure and sale of the mortgaged property by the mortgagee, or the value of the chattels possessed by the mortgagee, is on the mortgagor.”

In the instant casé the defendant set up an affirmative defense to the bill of particulars, alleging facts indicating the existence of lack of diligence in securing a fair price, raising an inference of had faith in the conduct of the sale by the mortgagee. In his cross-bill of particulars, seeking the recovery of the excess over his obligation in the note, caused by the difference between the sale price and the fair market value, the defendant again assumes- the obligation to prove by the preponderance of the evidence, lack of diligence and bad faith. The charge was also, therefore, prejudicially erroneous as to the plaintiff in placing the burden of proving good faith upon it. It is doubtful whether the charge would have been proper even in case of a sale to the mortgagee. - The duty of the mortgagee in such case being only to rebut or meet an inference of bad faith arising from a sale to itself at a grossly inadequate price.

The confusion in the mind of the court and consequent confusion in the minds of the jury is shown by the charge of the court applicable to the duty of the defendant as to burden of proof on his cross-bill of particulars. The latter part of the charge again stating an erroneous rule of law prejudicial to the plaintiff:

“Now, in addition to setting up that defense, the defendant, James B. Daken, says that the car in question, he bought this car in question on the 15th day of September 1937 from the Northside Auto Sales, that he made a down payment and gave his personal note in the sum of $849.12 to cover the balance due and also a chattel mortgage. He says, also, that, he further says I should say, that the Northside Auto Sales assigned the mortgage to the First Discount Corporation and that on- the 18th of April, 1938, the First Discount Corporation repossessed and took away from the defendant said automobile and sold the same at private sale without notice to this defendant at ,a price far below the actual market price of said automobile, to wit, for the sum of $450. He says the actual market value of the automobile at the time of the sale was $800 and that by the lack of good faith in making said sale, and by reason of the plaintiff’s disregard for the rights of the defendant herein he has been damaged to the sum of $350 and he prays judgment for $350.
“Now, the burden, I should say, of proving those allegations in his cross bill are upon the defendant to prove by a preponderance of the evidence and as I have stated to you before the burden rests upon the plaintiff in this case to show that they, upon that issue, to show that they acted in good faith and obtained full value of the car.”

For error in the general charge, prejudicial to plaintiff, the judgment of the Court of Common Pleas in affirming the judgment of the Municipal Court of Cincinnati is reversed, and the case remanded through the Court of Common Pleas to the Municipal Court of Cincinnati for a new trial.

Judgment reversed.

Ross, P. J., Hildebrant and Matthews, JJ., concur in the syllabus and opinion.