text:
    ERROR-EVIDENCE.
    [Coshocton (5th) Court of Appeals,
    February 28, 1916.]
    Shields, Powell and Houck, JJ.

      Pauline Crawford v. W. S. Merrell, Tr. et al.
    1. Evidence Relating to Transactions between Relatives not Regarded with Suspicion,
    An instruction to the jury that transactions between relatives “are always viewed with suspicion, and their testimony with regard to such transactions must be taken with allowance,” is not prejudicial where immediately followed by the statement that if such testimony “is of such a nature as to carry conviction to your mind that said witnesses are telling the truth, then it is entitled to as much weight as that of any other witnesses.”
    2. Rule against Reversal on Weight of Evidence Applies to Judgment Based on Conflicting Evidence from which Different Conclusions Follow.
    The rule that a reviewing court will not set aside a judgment on the ground of weight of evidence, applies to a judgment which is based on evidence which is conflicting and of a character as to which different minds might arrive at different conclusions.
    [Syllabus by the court.]
    Error.

      C. 72. Bell, George D. Klein and Frank Pigman, for plaintiff in error.

      F. E. Pomerene, Joseph L. McDowell and W. 8. Merrell, for defendants in error.

      Motion to certify overruled, 93 O. S. 000; 61 Bull. 175.

   HOUCK, J.

This is an error proceeding prosecuted from the common pleas court of this county to this court. The parties here stand in the reverse order in which they stood in the common pleas court. The plaintiff in error seeks to reverse a judgment of the common pleas court of Coshocton county in the sum of $4,000 which was entered on the verdict of the jury in the trial of said cause against said plaintiff in error, who was the defendant below. The suit below was brought by the defendant in error, the plaintiff below, as trustee in bankruptcy of Walker and Lawrence, against tbe plaintiff in error, the defendant below, to recover certain corporate stocks, or the value of the same, alleged to have been transferred by Frank A. G-. Lawrence, one of the bankrupts, to his mother, Pauline Crawford, the plaintiff in error.

The second amended petition avers that said Lawrence, while indebted to numerous banks and individuals, and at the time such indebtedness was created, was the owner of the corporate stocks in question, and was at said time and ever since unable except for same to pay his debts, and except for same was insolvent. That while so indebted he transferred to his mother, Pauline Crawford, the defendant, said stocks gratuitously and without consideration.

The defendant denies hy answer all the material allegations in the second amended petition, and the cause, upon the pleadings filed, went to trial, resulting in a verdict in the sum of $4,000 in favor of the trustee. A motion for a new trial was filed, heard by the court, and overruled, and a judgment was entered on the verdict. A petition in error was filed in this court, and a bill of exceptions containing the testimony of more than twenty witnesses, covering nearly 200 pages of typewritten matter. This case being an important one, presenting several new questions of law and fact, the court has given it much time, and with no little amount of labor we have read the testimony of all of the witnesses. The petition in error sets forth many grounds of error, for which a reversal of the judgment below is sought. We have examined all of the grounds of alleged error and think that the following are the only ones urged by counsel in their brief and presented in oral argument which we deem necessary to discuss.

First. Is the second amended petition sufficient in law?

Second.. Did the court err in its admission and rejection of testimony?

Third. Did the court err in refusing to give to the jury special written requests before argument presented by the defendant below ?

Fourth. Was the verdict of the jury against the manifest weight of the evidence?

We have examined the second amended petition and while in some respects it is not as clear and definite as it might be, yet it specifically sets forth the facts in such language as to fully and completely advise the defendant below of the claim made, and is, as we feel, a concise, legal and logical statement of the claims relied upon by the plaintiff, and is therefore sufficient in law.

Counsel for plaintiff in error strenuously contend that the trial court erred prejudicially as to the rights of their client in that part of the general charge in which the court said:

'‘Transactions between mere relations are always viewed with some suspicion, and their testimony in regard to such transactions must be taken with some allowance.”

Counsel say:

“This statement was very prejudicial, an invasion of the province of the jury, the giving of impeaching testimony by the court, and strictly against the law.”

We agree with counsel that the above statement as to the law with reference to transactions between relatives is and would be erroneous and prejudicial if given in that language and without modification, but the trial court modified the above, which will be observed by reading the general charge. Following the above language and in the same sentence we find the following:

“But if it is of such a nature as to carry conviction to your mind that said witnesses are telling the truth, then it is entitled to as much weight as that of any other witness.”

Counsel for plaintiff in error in their brief did not give all the language used in that connection by the trial court. It will not do to take isolated sentences and statements in the general charge and predicate error thereon. All the language used concerning the particular subject must be taken into consideration, and from this determine whether or not the charge is sound in law and pertinent to the issue to be determined.

Applying this rule to that part of the charge complained of, we can reach but one conclusion and that is that it is a correct and proper statement of the law governing the weight that should be given evidence offered by relatives as to transactions between them.

While the bill of exceptions discloses some technical errors in the admission and rejection of certain testimony, we do not think it in any way prejudiced the substantial rights of the plaintiff in error.

Did the court err in refusing to give the special charges before argument as requested by the defendant below? If these special written requests were correct propositions of law applicable to the issue or issues to be' determined in the present case, then it was prejudicial error to refuse them. With the view of ascertaining whether or not they are within this rule we have carefully examined them, and find that as abstract propositions of law they are sound, but not applicable to the particular facts and the issues to be determined in this controversy, and therefore the court committed no error in refusing to submit them to the jury.

The one real question of fact in this case, and which.was presented to the jury for determination: Was Frank A. G. Lawrence at the time of the transaction in question solvent or insolvent? This being a question of fact was" wholly and entirely for the jury to try and determine. We have read all of the testimony of the witnesses pro and con bearing upon this question, and we have no hesitancy in saying that the evidence is somewhat conflicting, being of such a character and nature that different minds might arrive at different conclusions. Questions of fact are for the jury to determine and questions of law for the court to pass upon. Courts should not invade the rights of a jury, and we do not think it is within the province of nor do we feel that it is the duty of a reviewing court to set aside a judgment entered on the verdict of a jury for the reason that the same is against the weight of the evidence, unless from an examination of all the evidence the judgment is manifestly against the weight of the same; and of this fact the reviewing court must and should be clearly satisfied; and not so finding in the instant case, the judgment below will not be reversed on the alleged error of the verdict of the jury and the judgment entered thereon being against the manifest weight of the evidence.

It therefore follows from what we have already said that we find no error in the record prejudicial to the rights of the plaintiff in error, and so finding, the judgment of the common pleas court must be affirmed.

Judgment affirmed.

Shields and Powell, JJ., concur.


source: Caselaw Access Project

author: CHITTENDEN, J.

license: Public Domain

text:
    EVIDENCE — NEGLIGENCE.
    [Hamilton (1st) Court of Appeals,
    March 8, 1915.]
    Richards, Chittenden and Kinkade, JJ.
    (Judges of the 6th district sitting by designation.)
    CINCINNATI (City) v. Susie C. Osborne.
    1. Repeating at Trial by Third Persons Statements by One Who has been Injured as to Pain and Suffering Caused Thereby Incompetent. Statements by one who has been injured, as to the effect of the injury and the suffering caused thereby, can not be repeated from the witness stand by a physician not in attendance on the case or by third persons, in an action in which damages are sought on account of the injury.
    [Syllabus by the court.]
    Error.

      Walter M. Schoenle, city solicitor, and Constant South-worth, Assist., for plaintiff in error.

      F. E. Burnett and Thomas L. Michie, for defendant in error.
   CHITTENDEN, J.

This action was brought in the common pleas court by Susie C. Osborne to recover damages from the city of Cincinnati for injuries alleged to have been sustained by a fall caused from an alleged defective sidewalk. The plaintiff recovered a verdict and judgment against the city for $4,000. A number of errors alleged to have occurred on the trial are urged as grounds for reversal.

Plaintiff called as a witness I)r. Theodore H. Wenning, who was qualified to testify as an expert. He had at no time treated the plaintiff for the injuries complained of. During the course of his examination he testified, among other things, as follows:

‘ ‘ From what she told me of her previous condition I should judge that this displacement was much more pronounced only after exercise.”

Also:

“From what she said the displacement was very pronounced and occurred only after considerable exercise.”

After further describing the condition of the plaintiff, he was asked:

“That being the ease — is that from your own examination or what she told you? A. I am using both, my examination as a basis.”

Objection was made by counsel for the city to the introduction of this evidence, which objection was overruled and exception lodged.

A.daughter of the plaintiff was called as a witness. Among other things, she testified as follows:

“And she would always tell me just how it felt and would always tell me it hurt her very, very bad. Q. Did you hear her make any complaints of pain? A. Yes, sir. Q. How frequently? A. She complained of it all the time. ”

Counsel for the city moved to strike out all the evidence of the witness as to complaints, which motion was overruled and. exceptions taken.

The evidence of Dr. Wenning and of the daughter as to the complaints made by the plaintiff is in direct conflict with the decision of the Supreme Court in Pennsylvania Co. v. Files, 65 Ohio St. 403 [62 N. E. Rep. 1047], and Cincinnati v. Olshewitz, 89 Ohio St. 414. This same conclusion was also reached by the court of appeals of the sixth district in Lucas county in Toledo Eys. L. Co. v. Yahnke, not reported.

We find no other error justifying a reversal of the judgment, but for the error in receiving the evidence of Dr. Wen-ning and the daughter of the plaintiff, as above set forth, over the objection and exception of the defendant, the judgment of the common pleas court will be reversed and the cause remanded for a new trial.

Richards and Kinkade, JJ., concur.


author: RICHARDS, J.

text:
    ATTACHMENT AND GARNISHMENT.
    [Erie (6th) Circuit Court,
    May 7, 1912.]
    Wildman, Kinfcade and Richards, JJ.
    Myrtle Crosby v. Sandusky Gas & Elec. Co.
    1. Question of Ownership of the. Property Attached Can Not be Raised on Motion to Discharge the Attachment.
    A claim by the defendant in a suit in attachment that the property attached belongs to another can not be determined on motion to discharge the attachment.
    2. Right to Exemption Not Acquired by Subsequent Marriage.
    The marriage of the defendant, after the attachment is levied . but before sale of the property, does not afford ground for the claim that the property is exempt from attachment.
    3. Question as to Right of Appeal Waived by Trial on Merits.
    Any question as to the right of appeal from an order of the
    justice of the peace discharging the attachment is waived by going to trial in the common pleas court on the merits without raising the objection.
    [Syllabus by the court.]
    Error.

      B. B. Fisher, for plaintiff in error.

      King & Ramsey, for defendant in error.
   RICHARDS, J.

The Sandusky Gas & Electric Co. brought an action before a justice of the peace of this county against Myrtle Crosby to recover on an account for gas and electricity furnished to her for use in her residence. The action was accompanied by an attachment. Summons was issued on November 15, 1911, and was served on her the same day. Accompanying the summons was an order of attachment which vras levied the same day on certain property claimed to be owned by her. One of the grounds for the attachment stated in the affidavit therefor was that the gas and electricity furnished were necessaries. Before issuing the order of attachment the justice took from the plaintiff in his court a bond in which it is recited that “We bind ourselves to the defendant, Myrtle Crosby.” etc. The bond is signed “The Sandusky Gas & Electric Co., E. A. Beckstine, Mgr.”

The justice, by entry upon his docket, approved of this bond and the surety thereon. Myrtle Crosby was married on the day following the levy of the attachment' issued against her, and thereupon moved to discharge the attachment for various reasons, among which are that the property was exempt from attachment, and that in fact it belonged to her husband. When the ease came on for hearing in the justice court he discharged the attachment and rendered a judgment against the Sandusky Gas & Electric Co. for the costs made on the attachment, and judgment in favor of the company against Myrtle Crosby for the full amount claimed in the bill of particulars. I might say, in passing, that at no stage of the case was the amount sued for before the justice disputed by Myrtle Crosby. The Sandusky Gas & Electric Co. filed writh the justice an appeal bond in the sum of $600, being twice the appraised value of the attached property, by which bond it undertook to appeal from the decision of the justice discharging the attachment and adjudging costs on the attachment against it.

On the trial of the case in the court of common pleas that court overruled the motion to discharge the attachment. Subsequent to the hearing of the case in the common pleas court on the merits, Myrtle Crosby filed a paper objecting to the jurisdiction of that court over her person.

The ease is brought to the circuit court by a petition in error and a bill of exceptions containing all the evidence. The conclusions reached by us will be briefly stated. The claim made by the plaintiff in this court that the property attached belongs to her husband can not be investigated nor determined upon a motion to discharge the attachment. That principle was announced by the Supreme Court in Langdon v. Conklin, 10 Ohio St. 439, more than fifty yéars ago and has ever since been followed.

The marriage of the defendant on the day following the levy of the attachment does not entitle her to claim the property as exempt from attachment. Selders v. Lane, 40 Ohio St. 345; Nipon v. Vandyke, 1 Circ. Dec. 365 (2 R. 63); Bradley v. Wacker, 7 Circ. Dec. 565 (13 R. 530).

Some contention exists as to whether the plaintiff in attachment before the justice had the right to appeal from the order discharging the attachment and adjudging the costs against it. Without determining that question, we are unanimously of the opinion that by going to trial in the common pleas court on the merits without having challenged the jurisdiction of the latter court the defendant waived any right that may have existed to deny the appealability of the action. The point appears to have been determined by the Supreme Court in Drake v. Tucker, 83 Ohio St. 97.

Finding no prejudicial error, the judgment of the court of common pleas will be affirmed.

Wildman, and Kinkade, JJ., concur.


author: CROW, J.

text:
    DEEDS.
    [Paulding (3rd) Court of Appeals,
    January 8, 1916.]
    Crow, Ansberry and Kinder, JJ.
    Anna B. Smalley v. Daniel W. Smalley, et al.
    1. Language Ineffectual to Reserve In Escrow Deed Power- ofl Alienation.
    Language employed by way of condition or exception in a deed of conveyance of real estate reserving to the grantor the power of alienation of the state conveyed, will, on grounds of public policy, be denied effect for repugnacy.
    Appeal.

      Hooper & Lenhart, and Waters & BayUss, for plaintiff.

      F. P. Spriggs, P. W. Stumm and A. N. Wilcox, for defendants.
   CROW, J.

In this case, which is here on appeal from the court of common pleas of Paulding county, Ohio, plaintiff seeks to recover and have aparted to her the undivided sixth of certain real estate situate in said county.

The essential facts are the following: On June 16, 1900, Daniel F. Smalley, a widower, died intestate, leaving plaintiff, and the other parties to this action, his sole heirs at law and next of bin. On August 11, 1893, said decedent, by a deed in due form, acknowledged and witnessed, conveyed the premises described in plaintiff’s petition to certain of his children not including plaintiff and others, the deed being in the following language, omitting thó acknowledgement:

‘ ‘ Know all men by these presents, that I, Daniel F. Smalley, an unmarried man of the county of Paulding, Ohio, the grantor in consideration of one (1) dollar and other considerations to me paid by Amariah P. Smalley and Daniel W. Smalley, the grantees, the receipt whereof, is hereby acknowledged, do hereby bargain, sell and convey to said grantees and their heirs and assigns, forever, the following real estate, viz., situated in the county of Paulding and state of Ohio, and known as the north half of the southeast quarter of section eighteen, township two (2), north of range two (2) east, containing eighty (80) acres of land the same more or iess but subject to all legal highways together with the privileges and appurtenances to the same belonging, with the following exceptions, that said grantor reserves full control and use of said premises during his natural life, with full power to sell and convey said premises, the same as i £ this deed had not been executed, but in case that said grantor becomes deceased, then the title to said land to rest absolutely in said grantees, their heirs and assigns.

“To have and to hold the same to the said grantees, their heirs and assigns forever, grantor hereby covenanting that the title so conveyed is clear, free and unincumbered and that he will warrant and defend the same against all claims whatsoever, except the conditions above set forth.”

This instrument was, as soon as acknowledged, left by the grantor with the scrivener, P. W. Stumm, to be delivered, by him upon the death of the grantor.

No control of the deed was reserved at the time of such placing it in the hands of the scrivener.

After the death of the grantor, pursuant to said unconditional direction by the grantor, the depositary of the instrument, Mr. Stumm, delivered it to the grantees, who caused the same to be duly recorded.

Two questions arise upon the facts, and in behalf of plaintiff it is claimed that the correct solution of both requires the avoidance of the deed and a decree of partition in her favor.

1. It is first urged that the placing of the deed in escrow with the scrivener, and his subsequent disposal of it as above recited, do not constitute a valid delivery.

Whatever may be the law in other states, this point has been clearly settled in Ohio, in favor of such delivery, by the decisions of the Supreme Court in the following cases: Crooks v. Crooks, 34 Ohio St. 610, and Ball v. Foreman, 37 Ohio St. 132.

The above decisions, with which we are unanimously in full accord, have become a rule of property.

2. Is the instrument effective at all as a conveyance of lands, in view of the presence in the granting clause, of language immediately following the description, to-wit:

“with the following exceptions, that said grantor reserves full control and use of said premises during his natural life, with full power to sell and convey said premises, the same as if this deed had not been executed, but in case that said grantor becomes deceased, then the title to said land to rest absolutely in said grantees, their heirs and assigns.”

Of course, no claim is made that the reservation of the life estate in favor of the grantor, could not be properly made.

But it is insisted that the language of the exception which preserves to the grantor the full power to sell and convey, as well as tbe exception following tbe warranting clause, renders tbe deed ineffectual, for tbe reason that an attempt is made to reserve to tbe grantor an estate (in fee simple) equal in character and duration to that purporting- to have been conveyed.

Many of the early rules of interpretation of deeds, which had to do with the formal parts, such as the granting, habendum, and tenendum, clauses, have by the uniform holdings of the courts of several states, including those in Ohio, yielded to the one which now requires construction by reference to all the language, generally characterized as “by the four corners.”

However, at the threshold of the interpretation of the deed in issue herein, lies the rule requiring a deed to be construed most strongly against the grantor. This is also a rule of property in Ohio. Potter v. Burton, 15 Ohio 196; Cincinnati v. Newell, 7 Ohio St. 37, 42.

Another applicable canon of interpretation closely allied to if not included in the one just mentioned, requires that if the instrument be susceptible of two interpretations,' one of which will pass the title, and the other will not do so, the former will be adopted.

The controlling question in the case at bar is the following: where, by the terms of a conveyance of real estate otherwise free from doubt, the whole of the state sought to be conveyed is, by an exception, reserved in the granting clause to the grantor, does such irreconcilable repugnancy exist as must render the instrument nugatory? ■

Were the language reserving to the grantor of the deed here in question, full power to sell and convey the premises the same as if the deed had not been executed, absent from the conveyance under consideration, no one would claim that the remainder in fee simple, subject to the reserved life estate, would not pass to the grantees.

But this language can not be disregarded.

Either it must result in complete destruction of the attempted conveyance, or it must be adjudged of no force as against the title which would pass were it not employed.

Manifestly the grantor intended three things by this instrument : first, to convey a fee simple title to the grantees; second, to reserve an estate for life, to himself; and, third, to engraft on the fee simple title a right in himself, which might take from the grantees every attribute of the title the grantor was investing in them.

By the language itself, the grantor made the reservation essential and entirely repugnant to the very nature of the estate he had conveyed.

With much diligence we have endeavored to find a case in Ohio on this precise question, where a deed was in issue. In Anderson v. Cary, 36 Ohio St. 506 [38 Am. Rep. 602], the principle is applied in the ease of a will, where restraint of alienation was attempted. At page 515, the learned judge asserts the rule to be the same by deed as by will, and indeed no reason can be perceived for any discrimination in the application of this rule. The restraint is void as against public policy. And, as stated in the case last cited, the owner of property can not transfer it absolutely to another, and at the same time keep it himself. He may restrain or limit its enjoyment by trusts, conditions or covenants, but can not take from a fee simple estate its inherent quality and still transfer it as such estate.

While in the case just referred to, the restraint sought to be imposed was on the power of the devisee to alienate, the principle will apply as well where by exception in a deed a grantor would undertake to restrain alienation by language reserving to him the power to deprive the grantee of the title sought to be conveyed.

This subject is admirably covered in the recent and very valuable work, 8 Ruling Case Law, p. 1094.

We entertain no doubt concerning the correctness of the rule there so clearly stated and abundantly supported by the notes to which it refers, which harmonize with the Ohio case referred to.

We hold, therefore, that the quoted language of the exceptions in the case before us, is ineffectual, so far as it undertakes to impair the state in fee simple subject to the reserved life estate.

Kinder and Ansberry, 33., concur.


author: JONES, E. H., J.

text:
    BROKERS — PRINCIPAL AND AGENT.
    [Hamilton (1st) Court of Appeals,
    January 24, 1916.]
    Jones, .Tones and Gorman, J.T.
    Gordon W. Durrell, et al v. Statia B. Reynolds.
    Real Estate Broker Entitled to Commission Where Purchaser Willing and Able to Take Property Produced Nothwithstanding Contract of Purchase is Unenforceable.
    The fact that a contract of purchase of real estate, procured by a real estate broker, was imperfectly executed, is not ground for refusing the judgment in favor of the broker for the amount of his commission, where the purchaser produced stands ready and is able to take the property at the agreed price, notwithstanding the infirmity in his contract of purchase.
    Error.

      Hunt, Bennett & Utter, for plaintiffs in error.

      Powell & Smiley, for defendant in error.
   JONES, E. H., J.

The plaintiff below, Gordon W. Durrell and the Kaufhold Realty Company, sued the defendants, Statia B. Reynolds, individually, and Statia B. Reynolds, as executrix and trustee of the estate of E. B. Reynolds, seeking to recover the sum of $1,800 for services in finding a purchaser for certain real estate belonging to the E. B. Reynolds estate. Durrell v. Reynolds, 25 Dec. 548 (16 N. S. 486).

The plaintiffs are real estate agents and on April 18, 1913, were employed by defendants by written contract as follows:

“Cincinnati, 0., April 18th, 1913.
“G. ~W. Durrell and The Kaufhold Realty Co.
“I hereby agree to sell the following property viz: Situate on the south side of Sixth St. between Main and Sycamore Sts., at the south-west corner of Sixth and Langdon Alley, being forty two (42) feet front on Sixth St., by a depth of one hundred and thirty-nine feet, ten inches, to an alley, with the improvements thereon, for the sum of Sixty Thousand ($60,000) Dollars, payable cash and authorize you to procure a purchaser for the same and agree to pay you a commission of 3 per cent on the amount for which said property may be sold. I guarantee the title good, and will convey by deed of general warranty. Except as to taxes and assessments due after June 20, 1913. In consideration of your efforts to find a purchaser, I agree that you shall have the exclusive right to sell said property for 30 days; give you written notice withdrawing the same. It is further agreed that you shall be entitled to your commission if the property is sold during the existence of this contract by you, or the undersigned, or any other person, at any price acceptable to the undersigned.
“(Signed) Statie B. Reynolds, “Executrix of E. B. Reynolds Estate.
“ Cincinnati, O.
“.hereby accept the agency for said property on the terms above stated.”

On the day the plaintiffs procured a purchaser who indorsed upon the above contract the following:

Cincinnati, O., April 18th, 1913.
“We hereby agree to purchase the above described property at the price and upon the terms above stated.
“ (Signed) Estate oe L. B. Harrison.
“C. L. Harrison, et al, Trustees.”

ATr.fi. L. Harrison who signed the agreement to purchase was one of three cotrustees for the L. B. Harrison estate. The evidence shows that he and his cotrustees were at all times ready, able and willing to take the property and in all respects perform their share of the contract.

The seller refused to convey the property to the Harrison estate, and then refused to pay the agent’s commission, making the claim that the contract of sale secured by the agent was unenforceable; in other words, that because it was signed by one of tbe trustees only it could not be specifically enforced. This claim was made and such defense interposed in the trial below and in argument here, notwithstanding the uncontroverted fact that Mr. C. L. Harrison was ready and able at all times to comply with the terms of the contract individually, and that the evidence plainly shows that he was authorized to sign the contract, or at least he together with his cotrustees were not only able but ready and willing at all times to somply with its terms.

To support her claim defendant in error relies upon Pfanz v. Humburg, 82 Ohio St. 1 [91 N. E. Rep. 863; 29 L. R. A, (N. S.) 533]. The cases are similar in that each is an action by a real estate agent for his commission. In every other respect they differ. Throughout the opinion points of difference are commented upon as if the learned judge had in mind this case and was differentiating between them. To show how essentially different the facts are we quote in full the syllabus:

“P., a real estate agent, accepted the following proposition:
“ ‘CINCINNATI, Ohio, May 2, 1905.
“ ‘John Pfanz, Agent: I hereby authorize you to sell for me the following described real estate, located at 2241 Flora Place, for the sum of three thousand five hundred ($3,500.00) dollars on the following terms: title to be perfect, free and unin-cumbered, payments to be cash, and I agree- to give you sole authority to sell the same for the period of ten days, and agree to pay you for services when the property is sold.
“ ‘Magdalena Humbueg,
“ ‘William Humbueg.’
“P. procured one who said he.was willing to take the property at said price, and he paid the agent $9.75, for which the agent gave a receipt,’ and turned the payment over to the vendors; but no written contract of purchase was entered into, nor was possession taken by the alleged purchaser, who after-wards refused to take the premises or complete the purchase by entering into an enforceable contract.
“Held: That the condition in' said contract of employment, ‘to pay for services when the property is sold,’ has not been complied with by the agent and he is not entitled to recover commission.”

The case at bar is one in which the plaintiffs seek to recover for procuring a purchaser, and that is what they were employed for. But in the case cited, Price, J., in the second sentence of the opinion says:

“The petition shows that the right to compensation depended upon a completed sale.”

Again, on p. 11:

“This agency contract was not to merely procure an able, willing and ready purchaser, but the owners agree to pay for services when the property is sold.”

And, to show further the ground upon which that case was determined, see p. 13:

“* * * the owners agree to pay the agent for services when the property is sold. It is not averred in the petition, nor is it established by any evidence introduced by the agent, that-a sale was made. ’ ’

Also, see p. 12:

“The plaintiff in error, through his counsel, makes the proposition, that ‘where the real estate agent finds a purchaser who is ready, willing and able to take the property at the stipulated price, no written contract of purchase signed by the prospective purchaser is necessary to enable the agent to recover his commission.’
“As a general rule, we may assent to it, but it can not be used to determine every case, especially in a case where the contract of agency is specific and clear as to the condition upon which commission can be recovered. Nor do we intend to hold that as a general rule it is a part of the agent’s duty to enter into a written contract with the purchaser for the sale of the property. ”

These are only a few sentences from the opinion, but they are sufficient to show that the case from which they are taken differs so widely from this case in every material point that it can not be relied upon here, unless it be to support the agent’s ease, as we think the opinion does.

There seems to be no case reported in Ohio where the precise question here presented was determined. That is probably due to the fact that the issue here involved is simple, and one in the solution of which the mind at once ■ turns to and dwells upon the principles of justice and fair dealing which lie at the foundation of our system of jurisprudence and which have served as landmarks in its growth and development.

Mrs. Reynolds employed the agent to find a purchaser for her property. The agent found the purchaser, and it was through no fault of the purchaser or agent that the sale was not consternated. Mrs. Reynolds failed to give title and to make a deed. She now says she is not liable for the commission because the contract which the agent procured was unenforceable. Unless the purchaser refused to take the property or she was otherwise prejudiced by the alleged defect in the contract, how can Mrs. Reynolds take advantage of its infirmity? What had that to do with the failure to consummate the sale? The record shows it had nothing to do with it, but on the the contrary that it was through the refusal of the owner to comply with her contract that the sale failed. A person can not be permitted to take advantage of his own wrong, and the authorities relied upon by defendant in error do not uphold her contention.

The main case cited and one that seems to be a leading ease is that of Wilson v. Mason, 158 Ill. 304 [42 N. E. Rep. 134; 49 Am. St. Rep. 162], This was a suit by a real estate broker for his commission for finding a purchaser or affecting a sale. It differs materially from the case at bar. The purchaser, alleged to have been procured, refused to take the property. The validity of the contract, as a matter of course became an important subject of inquiry. The purchaser procured refused to take the property and the only way he could be compelled to do so was by a suit for specific performance of the contract; hence, the validity of the contract became an element, and a controlling one in determining the right of the agent to a commission. If the contract was unenforceable the agent had rendered no serviee of any value to his employer and should not recover. Such were the facts, and so the court decided in that case. But Justice Magruder, who delivered the opinion, began the discussion on page 309 with some general observations with which the claim of the broker in the instant ease-are in accord. He says:

'‘The duty of a broker who is employed to sell real estate, is to find and produce to the vendor a purchaser, who is ready, willing and able to complete the purchase as proposed. This he must do before he is entitled to any commissions. If the vendor rejects the purchaser so produced, the broker is bound to show that such purchaser was willing, ready and able to perform the contract according to the proposed terms. If the principal accepts the purchaser thus presented, either upon the terms previously proposed or upon modified terms then agreed upon, and a valid contract is entered into between them, the commission is earned. In such case, the broker has earned his commission although the sale is never actually completed, if the failure of the purchaser to complete the sale results from, the inability of the vendor to make a good title, and without fault on the part of the broker.”

In Ohio the cases are few touching even remotely upon the question here presented. It is interesting to note that practically the precise question was decided by the superior court of Cincinnati in Heints v. Boehmer, 6 Dec. 362 (4 N. P. 226.).

"While it may be said that this case is not authority and not to be necessarily followed here, it has not been reversed and has remained the law of this state. The syllabus is as follows:

“In a suit for recovery of a commission for the sale of real estate, the failure of the owner to incorporate into the contract with the intending purchaser, found by the agent, provisions which make it binding, does not militate against the agent’s right to recover.”

And in the opinion, in commenting on an instruction given the court say:

“In any view of the case, this instruction was misleading inasmuch as it was intended to make the right of plaintiffs to recover depended absolutely upon tbe right of defendant to enforce specific performance against Muhlhauser. But the instruction is clearly erroneous when we consider that plaintiffs were not employed to effect a binding contract for the purchase, of property, and that the plaintiffs did not in fact act as the agents to defendant's intestate in executing the contract, but that the contract was signed by Maria .Agnes Boehmer herself. Her failure to effect a binding contract, can not militate against the rights of plaintiffs, since their duty was performed and their commission earned when they found a purchaser ready and willing to buy, and brought the parties together. The duty of effecting a binding contract then devolved on, and, in fact, was assumed by Maria Agnes Boehmer herself. It was for her and not the plaintiffs, to incorporate in the contract such provision as would make it binding notwithstanding the existence of the mortgage.
“The court in its general charge to the jury proceeded upon the assumption that the plaintiffs were bound, and, in fact, assumed to execute the contract of sale, and that they could not recover unless a binding contract was made. This was error. ’ ’

There are many cases in other states bearing upon and upholding the right of the broker to recover in this case. First, we cite Buckingham, v. Harris, 10 Colo. 455 [15 Pac. Rep. 817], quoting from the syllabus the following:

“A real estate broker is entitled to his commission when he has procured a party ready to purchase on the owner’s terms, though he has not made a binding contract for the sale of the real estate with such person.”

In Mooney v. Elder, 56 N. Y. 238, the lengthy syllabus is instructive and pertinent here, but we refrain from quoting from it. We, however, take from pages 241 and 242 of the 'opinion this apt language:

“The plaintiff was entitled to his commission upon xne production of a purchaser ready and willing to purchase the property although through the default of the defendant a sale was never effected. There was nothing showing but that the contract might have at once been consummated, had the plaintiff been ready to give a deed and put the purchaser in possession. The defendant having declared to the plaintiff that he had sold the property, and when called on to pay the commission based his refusal to pay, not upon the ground that a valid contract for the sale had not and could not be made, but upon the ground that he had withdrawn the property from market before the sale was made, can not now shield himself from liability on the former ground. Besides, the evidence shows, prima facie, that the purchaser was ready and willing to purchase when the verbal contract was made, and there is nothing appearing subsequently in conflict therewith. The court would have been warranted in holding that the commissions then became due, although the conveyance was not made until some time afterward.”

We will refer to but one other case, Holden v. Starks, 159 Mass. 503 [34 N. E. Rep. 1069; 38 Am. St. Rep. 451], wherein the syllabus is in part as follows:

“ If A, acting as the authorized agent of B, makes a contract of sale of B’s land to C, who pays to A a part of the purchase money, and who for a long time afterwards is able, ready and willing to take the property and pay for it the price agreed, and is prevented from doing so by B’s refusal to carry out the contract, A is entitled to compensation from B for making the sale, although C could not have been compelled to carry oat his contract, if he had chosen to set up the statute of frauds.”

This case was tried to a jury in the common pleas court, and counsel for both sides asked for an instructed verdict. The court thereupon withdrew the ease from the consideration of the jury and treated the issue as one at law. Thereupon judgment was rendered in favor of defendants. This was error of law, as we have tried to show.

The judgment is reversed, and there being nothing left in the present state of the case but the question of law discussed above, this court will render the judgment that should have been rendered by the court below.

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


author: GRANT, J.

text:
    LIBEL AND SLANDER.
    [Cuyahoga (8th) Court of Appeals,
    May 22, 1916.]
    Meals, Grant and Carpenter, JJ.
    Earle T. Foster v. Mayo Fesler, et al.
    Publication of Candidate for State Legislature that his “Business and Court Record” Should Defeat Him for Office not Libelous per se.
    To publish of a candidate for the general assembly of the state, a plumber by trade and occupation, that “His business and court record is such that, in our opinion, he is entirely disqualified for the legislature; he should be defeated,” states nothing libelous per se; neither can an innuendo imputing want of integrity, moral turpitude nor criminality be deduced from such wording.
    Error to tbe common pleas.

      Cornelius Maloney, for plaintiff in error.

      Ford, Snyder <& Tilden, for defendants in error.
   GRANT, J.

The plaintiff sued the defendant in an action for libel. The cause was brought to a trial in the court of common pleas upon the fourth amended petition, to a jury.

An objection was made to the hearing of any evidence on the part of the plaintiff, on the assigned ground that the petition alleged .no. sufficient facts to constitute a cause of action against the defendants, or any of them.

The objection was sustained.

The defendants then moved for a dismissal of the action. The motion was allowed. The defendants thereupon moved for a judgment in their favor for their costs made. This motion also was granted. The plaintiff moved for a new trial. The motion was denied. The plaintiff prosecutes this proceeding to obtain a reversal of the judgment named, alleging error in the action of the trial court in the respects mentioned, prejudicial to his rights.

The petition upon which the plaintiff’s action was attempted to be brought to trial declared as upon a false and malicious libel perpetrated by the defendants, it was said, upon and against the plaintiff, who was at the time a candidate before the electors of his county for nomination to the office of member of the federal assembly of Ohio.

The defendants were charged, collectively, with being the ‘‘executive board” of the Civic League of the city of Cleveland, a body whose function or service, if it is understood, was to furnish the public, gratis, with advice and information concerning the qualities and fitness of aspirants for office, the particular information and counsel said to be libelous in this instance being published by them, or at their instigation or instance, in the Cleveland Leader, a newspaper.

The libel, if such it was, it is said to have lurked in the following language of the publication: “his business and court record is such that, in our opinion, he is entirely disqualified for the legislature; he should be defeated.”

It is contended on the part of the plaintiff that these words are of themselves, and without more, libelous.

"Whether they are so or not it is our business now to inquire and determine. Their libelous character and quality, as deduced by the pleader and embodied in the innuendos annexed to them by the petition, are of the tenor and effect that they would be understood by readers of them to mean, and were intended by the defendants to mean, that the plaintiff’s record in the courts and in his business was evidence of his depravity and want of integrity, to such an extent as totally to unfit him for the duties of the office to which he aspired.

Another form which our present inquiry must take is, whether the meaning thus attributed to the published matter is justified by the words themselves; for, of course, the language is not to be broadened by innuendo beyond its plain and ordinarily accepted import, in the absence of circumstances calling for a different meaning to be imputed to it, and no such circumstances are apparent in this case.

We quite agree with the contention that while a candidate for public office necessarily and properly puts his own record in issue, in order that the people may be honestly served, he does not thereby become a target for indiscriminate slander from the various mud-batteries always to be encountered on such occasions. A man’s rights as a citizen are not submerged in the slimy pools of partisan polities. His candidacy for the suffrages of his fellows is. or should be an honorable thing; and it does not authorize letters of marque and reprisal to be issued against him, nor denunciation of him as a legal leper. His reputation ought to be even more valuable to him in that relation, and it may be falsely and without cause assailed with impunity by the tongue of falsehood or the impassive types of libel. In such case he is entitled to the redress which the law gives persons thus aggrieved, whether his detractors are officious intermeddlers, or syndicates of saints posing as the guardians of the public welfare, uplifters at large, one of the two who went up to the temple to pray (not the publican), or just plain campaign liars.

On the other hand, temperate and truthful criticism of his history, his ability and fitness for the place to which he aspires, considerate and informing counsel by those qualified to give it,. to the voters whose advantages for coming at the truth of the matter are less influential than theirs, such advice, we say, given in a right spirit and for justifiable ends, is a wholesome thing in a government bottomed on healthy public opinion, and is not to be discouraged.

To find out in which category the publication complained of falls, we are to examine, carefully, the language used, and find from it, if we can, its real meaning as this would strike •the ordinarily reasonable man who, under the circumstances, might have read it. Upon the result of that inquiry we must determine whether the words are or are not libelous of themselves. In order to be so, they must fairly and obviously impute to the party complaining of them first, an offense indictable at law, involving in its perpetration moral turpitude or visitable with an infamous punishment; second, an offensive disease or other disgrace of a social character, importing the exclusion of its victn from reputable society; third, conduct which, if true, would be calculated to injure him in his calling, business, trade or profession.

For present purposes, we may at once exclude from this consideration the last two of these classifications, and limit the inquiry to the first of them.

Accordingly, we are told by the petition that the avocation of the plaintiff is that of a plumber.

It does not follow, necessarily, that because a man is a plumber he is a plumb. The word has a different derivation. In fact and according to common and daily observation, many people maintain that many plumbers are — to use the language of a former schoolmaster of ours — "on the contrary, quite the reverse.” Their methods of doing their work, and especially in the rather important matter of charging for it, are roundly denounced by the uncharitable, and by some who are charitable. If the half that is commonly said of plumbers and the ways of their craft is to be believed, then many plumbers would, if elected to the legislature, be uninfluential members, to say the least of the matter, and in that view and that sense of the word, be in a degree ‘ ‘ disqualified for the legislature. ’ ’ Their trade name would in that respect be against them. It is quite certain that the words used in the publication before us, so far as they purport to go to the plaintiff’s "business record,” when fairly and reasonable read, mean any more than that, to an intending voter whose only wish is to cast his ballot for the best candidate and to do so intelligently and advisedly? If they do not, then the quality of this part of the publication is not libelous of itself and the charge in that respect is not made out.

Or, the words may reasonably be considered in their proper relation to the successes or failures of the plaintiff in his business. Non-successes in business, no matter how pronounced or oft repeated they may have been, are, unhappily, no deterrant to running for office by the man who has achieved them. It is the infirmity of many men — including, we are pained to believe, most seekers for office — that a career of the most ghastly failure in their private affairs is just the thing to fit them to manage the affairs of the public. A half-baked accident who breaks down in business vainly imagines himself just the man to transact the business of everybody else, and seeks votes accordingly. Against such candidacies voters who are not informed should have the counsel of those who are.

It may be that the words of the publication imputing disqualification to the plaintiff have this significance. Of themselves, they do not import more or a worse deduction than that. Neither of the suppositions to which we have so far referred charges upon the plaintiff a crime, or even an offending against common personal or business morality, that we can see. Noise and clamor about plumbers, however inconsiderate or unfounded, decision of the perpendicularity of their charges may very seriously cripple a plumber’s influence and usefulness as a member of the legislature, but do not impute to him, even remotely, as it seems to us, an indictable offense or import moral turpitude in his conduct. And no more does the severest animadversion of his unsuccesses in business, although the fact of them may beget an able-bodied suspicion that he will not be likely to do a service to the public more usefully than he has been doing for himself, and this suspicion in turn may reasonably engender an opinion, which may, with entire propriety, be conveyed to the voters, that he has not the proper qualification for the office which he asks them to give him.

So that, as thus measured, the criticism of the plaintiff’s business record, embodied in the alleged libelous matter, is not obnoxious to the conclusion charged against it, and does not fulfill the canon of what in our law amounts to a libel per se, as appears to us.

The conclusion as to the result to be come at from the plaintiff’s charged “court record,” as contained in the publication, is of greater difficulty, perhaps or probably. A discriminating analysis of the language in this respect, however, may serve to clear up the obscurity.

Not every court record is a criminal record, happily; and on the civil side our courts are full of litigants, brought there from various motives and for different reasons. Some men are inherently quarrelsome, and so get into trouble often, and the court is the resort of themselves or their neighbors as a sort of safety-valve to straighten out their troubles or settle their fights. Others are chronically in financial straits, or habitually refuse to pay their debts till sued. Others develop litigious habits, seek trouble with their customers, and, of course, find it, and reach the courts for settlement of their rows.

It is quite possible, and. indeed quite a frequent thing, within common knowledge, for men to have a court' record in some of the respects mentioned, and we can not say that plumbers, more than other men are exempt from the infirmities or the misfortunes which may and do result in that kind of a court record. Perhaps as often as any other class are they accused of charges bordering on the extortionate. A newspaper last winter, noting the arrival of the first strawberries in January, vouchsafed the single comment that nobody but plumbers were buying them. The accusation in any case may be unjust, but that it is commonly made illustrates the point in hand; and many have made merry at the poor plumber’s expense in this regard. A neighbor of mine, inveighing against his plumber’s bill, remarked that the latter should have been a cavalryman,— he was so good on a charge. The astute philosopher who was able to transform a well known proverb into “a little widow is a dangerous thing,” is supposed to have translated “it never rains but it pours” into “'it never drains but it costs.” Still, plumbers are entitled to be protected in life, limb, property and reputation, as well as all others. That some make them objects of derision does not turn them into legal outcasts.

Such a court record as we have instanced imports no crime, suggests none. It involves no inference of moral turpitude. It does not tend to disgrace the craft who are parties to it. On the other hand, it may unfit a party to it for the useful discharge of a legislator’s duties. Uncharitable people, — and indeed prudent people who desire useful service at the hands of their chosen law-makers and to have none but men of weight, influence and reputation in that position — all’ good citizens in fact — will say, and rightly say, that a man much in courts— whether from choice or necessity matters not — must be shorn of much of the power and opportunity for good and effective work as their representatives in the legislature. And so regarding tbe matter, it is the right, and it may be the duty, of men conversant with the facts and the records, to counsel voters who are not otherwise informed in that respect. We can see no impropriety in it, and much less can infer from it- a wanton and malicious desire to injure the reputation of one who, by seeking votes, puts that reputation, measured by his record in courts or out of them, before his wished-for constituents into the limelight of public scrutiny and judgment.

May not, it is asked again, the publication complained of here, be as fairly and naturally and reasonably read in this light, as in the harsher and more censorious aspect of imputed criminality or disgrace? And would not the common sense of tire people, which Guizot so finely called “the genius of humanity,” so read and apply it?

We think that the people who would be likely to read and heed the counsel which the defendants undertook to give them in the publication, men in the habit of reading such things and capable of reading them soberly and thoughtfully, would be likely also to read them in the light of a charitable rather than a sinful construction of the words employed to impart the advice tendered for their information and guidance in the duties of free electors.

But, it will be asked, may they not read them in the other view? Beyond question there may be men who would so read them. The storm petrels of society would so read them, men to whom like Sterne’s Smelfungus, everything looks green, would see in an adverse criticism of one’s business and court record only the inference of criminality and the devious trail of a scoundrel and a crook, and from their constitution could look at the charge in no other light. Undoubtedly there are such men; but they are, fortunately for the common well-being, in a sad minority, and do not furnish the just standard of judgment upon which the public desire to proceed in voting men into or out of office, or upon which customarily, as we believe, they do proceed or we should proceed.

Even if the words charged as being defamatory could be regarded as reasonably importing a criminal paper record, and if it is also held that this in turn foreshadows an infamous punishment — on paper, also — it is difficult to see how, on that account, they could be considered as in themselves actionable — - no element of moral turpitude being apparent from the language used — since in our time there is practically no real penalty annexed to many a committed crime — perhaps most of them — the criminal being customarily golden-ruled and let go with a speech of half apology and half compliment, the prevailing tone to-day, both as to lawmakers and supposed law-enforcers, being distinctly deferential to lawlessness.

The result of our examination of the words alleged to be libelous here, following the analysis to which we have attempted to subject them, is that they are of themselves not reasonably susceptible of the defamatory meaning charged, and we so find and hold. They purport on the face of them to rest on opinion only, and such opinion being, to our apprehension and according to the rule of right reason, to the innocuous purport mentioned.

If we are right in so finding, then the court below was right in refusing to hear the-evidence tendered, because in that case the question is one of law for the court to resolve, and there is nothing to be submitted to a jury. The rule as announced in Hays v. Mather, 15 Ill. App. 30, and adopted in Newell, Slander and Libel, Sec. 645, is as follows: “Where the words of an alleged libelous publication are not reasonably susceptible of any defamatory meaning, the court is justified in sustaining a demurrer to the declaration. But if they are reasonably susceptible of two constructions, the one innocent and the other libelous, then it is a question for the jury which construction is the proper one.”

We are of the opinion that the words here are not capable of the meaning ascribed to them by the innuendo annexed to them in the petition, and that their natural and normal significance does not justify an inference of a crime indictable at law, punishable infamously, and importing moral turpitude.. Reasonably construed, they amount to no more than the fair and temperate criticism which, by becoming a candidate, the plaintiff invited and which he ought to bear. By them he has not, as We look at the matter, been libelously assailed. And the voting public were entitled to the saving warning intended by the ■publication, if the non-criminal record of the plaintiff as a man of business and a litigant warranted it. “By their fruits ye shall know them"’ is still healthfully true; and we are to remember that it is the plaintiff alone who is insisting that the fruits are forbidden fruits. The defendants and we are more charitable in this respect than he is. He says that his townsmen, the defendants, charged him with being a criminal. We say not.

It follows from this that the intent of the defendants in causing the publication to be made is immaterial. It is said in Mosier v. Stoll, 119 Ind. 244 [20 N. E. Rep. 752], that if the publication does not contain a libelous charge, no action will lie. no matter what the author intended. But in the case at bar the motives of the defendants unquestionably were proper. They thought they were doing a real service to the public in making the publication, and it is not apparent to us that they were not.

We have endeavored to reach a conclusion in this case from premises founded in principle. The law applicable is so well settled that it need not be further discussed. It is probably not necessary for us to say that if the published matter were of itself actionable defamatory, the charge could not be met on the ground that it would be privileged.

Upon the best consideration we have been able to give the question before us, and having what we trust is a mindful regard for the rights of all the parties, we are satisfied that no error injurious to the plaintiff is to be found in the record under review, and the judgment complained of is, therefore, affirmed.

Meals and Carpenter, JJ., concur.


author: HOUCK, J.

text:
    ERROR — JURY—TRIAL.
    [Richland (5th) Court of Appeals,
    February 2, 1916.]
    Shields, Powell and Houck, JJ.

      Burton, Preston & Co. v. National Granite Co.
    Rule that Trial Judge is without Authority to Direct Verdict where Material Facts Disputed Applies to Action as Executory Contract.
    Where facts necessary to a determination of the issue involved are in dispute, it is error to direct a verdict, and such a situation is presented where there is conflict in the evidence as to material facts and some of the questions .of fact are of' such a character that different minds might arrive at different conclusions.
    [Syllabus by the court.]
    Error.

      J. W. Galbraith, for plaintiff in error.

      McBride & Wolfe, for defendant in error.

      Motion, to certify overruled, May 23, 1916, 61 Bull. 000.

   HOUCK, J.

The parties to this proceeding in error stand as they stood in the court below. The plaintiff brought suit to recover the sum of $845, being the full amount it had paid to defendant on an executory contract for the purchase and delivery of four monuments which plaintiff claimed were not made according to the terms of said contract, and further, that it had never accepted said monuments. The defendant filed an answer, being, in substance, a general denial. The case was tried to a jury, and after the plaintiff had offered its evidence the defendant filed a motion for a directed verdict, which was sustained by the court. A motion for a new trial was filed, heard and overruled. The plaintiff in error prosecutes error to this court seeking a reversal of the judgment below, and in its petition in error alleges several grounds of error, but in oral argument its counsel seems to rely upon one ground only, namely, that there were questions of disputed fact that should have been submitted to the jury for its determination.

We have examined the record in this case with much care, and we find the following questions of disputed faet:

1. Was the contract in question made and executed in Vermont or Ohio?
2. Were the monuments in question accepted by the plaintiff ?
3. Were the monuments in question of the size, color and kind purchased by the plaintiff?
4. Did the agent of plaintiff in Vermont accept the monuments ?
5. Did the plaintiff accept said monuments, or any part of same?

If these were questions of fact and were necessary for the proper determination of the issues involved in the present case, and they were disputed, then they should have been submitted to the jury for its determination. A motion for a directed verdict involves not only an admission of the truth of the evidence, but it further admits the existence of all the facts which the evidence tends to establish. If the testimony be conflicting, the facts uncertain, or the proper inferences to be drawn therefrom doubtful, then and- in that event the court would not be warranted in directing the jury to return a particular verdict.

It is the right of litigants in jury trials to have the weight and sufficiency of the evidence submitted to and passed upon by the jury, this being a right of which they can not be deprived by the trial judge, unless it is done with the consent and approval of the parties in interest. It therefore follows, if there is evidence tending to prove each material fact put in issue and indispensable to a recovery, that it should be submitted to the jury, under proper instructions from the court. Where there is no conflict in the evidence as to the material facts of the case, or where the material facts are conceded, and where the law admits of no inference from the evidence except that which is favorable to the defendant, a motion for a directed verdict made by the defendant might be properly sustained.

From an examination of the record in this ease We find that there was a conflict in the evidence as to the material facts; that the material facts were not conceded; and we do not think it will be seriously claimed that no other inference could be drawn from the evidence except tliat which is favorable to the defendant. We further find from the record that some of the questions of fact were of such character that the testimony offered with reference to same was not only conflicting, but of that kind and character that different minds might have arrived at different conclusions. This being so, it was a question for the jury to determine. We cite in support of this doctrine the case of Hickman v. Insurance Co. 92 Ohio St. 87, where the court say:

“In order that an issue should be required to be submitted to the jury it is not essential that there be such a conflict in the testimony of different witnesses as makes it necessary for the jury to determine disputes or questions of veracity. That is not the only province of the jury. They have another important function and duty. Where there is no dispute or conflict .in the testimony of different witnesses, but nevertheless the un-eonflieting testimony discloses a variety of circumstances from which different minds may reasonably arrive at different conclusions as to the ultimate facts shown by such evidence, then it is the duty of the jury to determine such ultimate facts even though the trial judge should himself be convinced as to what the conclusion should be.”

The defendant contends that the doctrine laid down in the case of Bowman Lumber Co. v. Anderson, 70 Ohio St. 16 [70 N. E. Rep. 503], is decisive of the case at bar, the syllabus of the case being as follows:

“By an executory contract for the sale and delivery of chattels of a described grade or quality, the seller becomes bound to deliver goods of the character described, but in the absence of express terms of warrant}'- no obligation is imposed upon him which survives the acceptance by the purchaser of an article delivered by the seller in good faith as in the performance of the contract, if the acceptance is with full knowledge of all the conditions affecting the character and quality of the article.”

We agree with counsel for tbe defendant that this is a correct principle of law and is applicable to the particular case to which it is applied, but it is not applicable to the facts in the case at bar. In the present case the plaintiff denies that he accepted the monuments in question, and that being a question of fact which is disputed, and being one for the jury to pass upon, we do not see how the claim of defendant can have any force with reference to it being applicable to the present case. If the plaintiff had accepted the monuments, then it would have been bound to pay for same unless it alleged and proved fraud, but as it claims it never accepted them, and that being a disputed question of fact, the rule of law urged by defendant is not applicable to the facts disclosed in the present case.

We feel that we are supported in our theory of this case by a long line of authorities, hot only in our own, but other states. Judge Ranney, speaking for the court in the case of Ellis v. Insurance & Trust Co. 4 Ohio St. 628 [64 Am. Dec. 610], pp. 645 and 648, says:

“The law of every case, in whatever form presented, belongs to the court; and it is not only the right of the judge, but his solemn duty, to decide and apply it. He must determine the legal requisites to the right action, and the admissibility of the evidence offered to sustain it. When all the evidence offered by the plaintiffs has been given, and a motion for a nonsuit is interposed, a question of law is presented, whether the evidence before the jury tends to prove all the facts involved in the right of action and put in issue by the pleadings. In deciding this question, no finding of facts by the court is required, and no weighing of the evidence is permitted. All that the evidence in any degree lends to prove, must be received as fully proved; every fact that the evidence, and all reasonable inferences from it, conduces to establish, must be taken as fully established.
“Our conclusions upon this subject can not be better stated than in the clear and explicit language of one of the learned judges in the court below: ‘Wherever there is any evidence, however slight, tending to prove the facts essential to make out a ease for the plaintiff, a non-suit can not be properly ordered, it is in no case a question as to the weight, but as to the relevancy of the testimony. If the testimony tends to prove a prima facie, case for the plaintiff, a non-suit can not be properly ordered. Nor can facts tending to prove a defense on the part of the defendant, though proceeding from the witnesses introduced by the plaintiff, be considered on a motion to non-suit. If the defendant wishes to set up any such facts, he must resort to the jury to have them established. ’ ’ ’

As to the right of trial by jury Judge Wanamaker, speaking for the court, says in the case of Gibbs v. Girard, 88 Ohio St. 34, 47 [102 N. E. Rep. 299; Ann. Cas. 1914c, 1082]:

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

The question presented for our consideration in this case is: Was the trial court justified in directing the jury to find a verdict for the defendant, in the light of the facts and the law applicable thereto ? In view of what we have already said, and in the face of the facts presented by the record, and applying to the same what we feel are the well established principles of law governing these facts, a majority of this court is of the opinion that the trial judge was not warranted in sustaining the motion for a directed verdict in the ease at bar, and that by so doing the court erred, to the prejudice of the plaintiff in error; and so finding, the judgment below should be reversed, which is accordingly done, and the cause remanded to the common pleas court for a new trial.

Shields, J., concurs.

Powell, J., dissents.


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    NEGLIGENCE.
    [Stark (5th) Court of Appeals,
    January Term, 1916.]
    Shields, Powell and Houck, JJ.

      Rena Peters, Admrx. of Charles D. Peters, Deceased v. Weston C. Howenstein et al.
    Operator of Traction Engine not Liable for Death of Bystander Caused by Bursting of Boiler on Highway.
    Recovery of damages can-riot be had for the death of one who was killed by the bursting of the boiler of a traction engine, which was being operated on a public road, where the decedent was not an employe of those owning and operating the engine, and was not present by invitation, but was a mere onlooker idly watching the operation of the engine.
    [Syllabus by the court.]
    Error.

      J. H. Robertson and Thomas F. Turner, for plaintiff in error.

      Welty <& Burt and Taylor & Stewart, for defendant in error.

      Motion to certify overruled, and motion to dismiss granted, May 29. 1916, 61 Bull. 000.

   HOUCK, J.

This canse is here on error from the common pleas court of this county. The parties stand in the same relative position as in the court below. The plaintiff brought suit in the common pleas court to recover of the defendants damages for the alleged wrongful death of the husband of plaintiff, Charles D. Peters, who was killed by the explosion of the boiler of a traction engine owned by the defendants, while the same was being used in hauling a steam shovel owned by one George Gareaux, on February 5, 1914.

Plaintiff avers in her petition that said boiler, engine, and the various fixtures and attachments thereto were old, having on said February 5, 1914, been in use about 15 years, and thereby had become greatly out of proper condition and repair for proper safety in the use of the same, in this, to-wit: the safety valve on said boiler did not work properly, would clog and not permit the same to blow off from said boiler when the pressure became great; that the water-gauge cocks to said boiler were fast and would not turn; that said boiler was old, much corroded and worn, thin and leaky, thereby rendering the same weak, unfit, unsafe and insecure, all of which defective, unsafe and insecure conditions of said boiler and attachments, as well as the age and long continued use of said boiler and its attachments, were on February 5, 1914, and for a long period of time prior thereto, well known to said defendants, and to each of them, or that said defendants, in the exercise of reasonable care, could and should have known of the same, and that by reason of the premises the said defendants were guilty of negligence, which caused the injuries resulting in the death of plaintiff’s decedent, and that the same was caused without any fault or negligence on the part of said decedent, and plaintiff prays for judgment against the defendants in the sum of $10,000.

The defendants filed an answer in the nature of a general denial.

The cause was tried in the common pleas court, and at the conclusion of all the evidence, and after both plaintiff and defendants had rested their case, the defendants moved the court to direct the jury to render a verdict in favor of the defendants. The motion was sustained by the court, and the jury returned a verdict for the defendants. To the sustaining of this motion by the court, and in the court’s instructing the jury to return a verdict for the defendants, error is prosecuted to this court seeking a reversal of the judgment below.

The undisputed and conceded facts in this case, as disclosed by the bill of exceptions, are as follows-. The defendants owned the traction engine and boiler in question, and were invited, through Mr. Howenstein, one of the defendants, to .assist one George Gareaux in moving a steam shovel upon the public highway between North Industry and East Sparta, said Gar-eaux at that time having the contract for the grading, paving and improving of the highway, and defendants living in the vicinity where the work was being done, took the engine to the place -where the steam shovel was located, the same being immediately in front of the Steinmetz farm about three-quarters of a mile south of Howenstein station, there being at that place in the road a highway leading to the east, and beginning on the east side of the road, known as the Steinmetz lane. Steinmetz’s fields were inclosed by fences, and plaintiff’s decedent was not engaged in any part of the work with Gareaux or the defendants, or either of them, and was not invited to the place in question, but out of mere idle curiosity had walked from Howenstein station southward in the field of Steinmetz and together with another person stood in the field back from the road some little distance from the engine and boiler in question watching the engine move the shovel, and while the engine was so engaged the boiler exploded, and plaintiff’s decedent was struck by a broken part of the same, and as a result of said injuries departed this life the following day.

The' defendants disclaim any liability, and maintain that they were not negligent in the operation of their engine or the boiler belonging to same, and that plaintiff’s decedent was a trespasser, or a mere onlooker, ard thereby assumed the risk he took by standing and remaining in the position where he was at the time of the accident, and that by reason of the premises the defendants, as claimed by them, owed no duty to the plaintiff’s decedent save and except not to maliciously, intentionally or wantonly injur-e him.

We are free to say that the real question presented by the facts as disclosed in this ease has never-been passed upon by any court, so far as we know; and we have been unable to find any reported case in this or any other state covering the exact facts as shown by the record in the instant case.

What duty, if any, did the defendants owe to the plaintiff’s decedent? The decedent was not in the employ of, nor had he been invited or requested to be present and occupy the place and position he did when the unfortunate accident occurred. He was simply an onlooker, an uninvited guest, and notwithstanding the fact that the defendants might have been negligent in operating the engine and boiler in question, yet under these circumstances were the defendants liable in law to the plaintiff? In other words, what duty did the defendants owe to plaintiff’s decedent, taking into consideration all the circumstances and facts of the case?

It will be conceded that the operation of a traction engine on the public highway is not unlawful, nor is it a nuisance in itself. If it becomes a nuisance, it is by reason of the fact of the way and manner it is operated, and not because it is a traction engine. The decedent not being an employe of the defendants, and not being present by invitation, and not about any business which would require him or his presence at the place where the injury occurred, but, upon the other hand, being there for the sole and only purpose, so far as the facts disclose, of satisfying an idle curiosity as to the operation of the engine and the steam shovel, can it be properly claimed that the defendants owed to him any legal or lawful obligation save and except that they would not wantonly, intentionally and maliciously injure him?

Under these facts and circumstances we think the only duty which the defendants owed to plaintiff’s decedent was the duty of not wantonly or intentionally injuring him, and there is no evidence submitted that would in any way tend to prove that the defendants wantonly or in any way intended to injure the decedent.

Taking this view of the law applicable to the facts in the present case, we think the trial judge committed no error in sustaining the motion to direct the jury to return a verdict for the defendants. Finding no error in the record, the judgment below should be affirmed.

Judgment affirmed.

Shields and Powell, JJ., concur.


text:
    LANDLORD AND TENANT.
    [Hamilton (1st) Court ot Appeals,
    February Term, 1916.]
    Richards, Chittenden and Kinkead, JJ.
    (Judges of the 6th court of appeals sitting by designation.)
    Martin J., Rickard v. James W. Utter.
    1. Negotiations riot Executed Regarding New Lease do not Relieve Tenant from Holdover Year’s Rental.
    Where a tenant by the year holds over, and thereafter there are negotiations regarding a new lease but none is executed, the negotiations regarding the new lease in no way operate to relieve the tenant from the obligation for another year’s rental which he assumed by holding over.
    2. Failure of Landlord to Make Promised Repairs does not Relieve Tenant from Payment of Rent.
    Failure on the part of a landlord to make promised repairs does not release the tenant from the obligations of his lease, but his remedy is by way of an action for damages for failure to carry out the agreement to make repairs.
    3. Retention of Key Sent Through Mail not Acceptance by Landlord of Lease Surrender.
    Retention by the landlord of the key to the premises sent to him through the mail does not constitute an acceptance of the surrender of the lease.
    [Syllabus by the court.]
    Error.

      A. B. Hoff an and Powell & Smiley, for plaintiff in error.

      Hunt, Bennett & Utter, for defendant in error.
   CHITTENDEN, J.

This action was begun in the Municipal Court of Cincinnati by James W. Utter to recover from the defendant, Martin J. Rickard, an amount claimed to be due upon a lease of real estate. The facts are substantially as follows:

On February 9, 1910, the plaintiff and the defendant, entered into a written lease for a residence belonging to the plaintiff, for one year from February 15, 1910, with the privilege of renewal for one year. The defendant agreed to pay therefor the sum of $50 per month, payable each month, beginning March 15, 1910. At the expiration of the first year the defendant exercised his option of renewal and remained another year. Without any further agreement, he continued in the occupancy of the property for the third year, and, without any further arrangement being made, he entered upon the fourth year. Some time in March 1913, probably about the 9th of the month, pursuant to an invitation from the defendant, the plaintiff went to the leased premises and there discussed with the defendant certain repairs that were desired, and agreed that such repairs would be made. At the same time there was a discussion concerning the executing of a new lease, and the defendant testifies that he agreed to execute a new written lease for one year from April 1, 1913, upon condition that the repairs that had been agreed upon should be made within a reasonable time. The evidence is not in conflict, on any material matter, as what was stated on this occasion, the plaintiff, however, claiming that while he agreed to make the repairs desired, the making of such repairs was not a condition to the executing of the new lease. At any rate, the plaintiff very shortly thereafter had a lease prepared in duplicate, for one year from April 1, 1913, and signed the same and sent them to the defendant. The defendant says that when he examined the lease he discovered that there was no condition in it relating to the repairs that had been agreed to be made, and thereupon he retained possession of the lease until he found that the repairs were not being made within a reasonable time, When he returned the lease to the plaintiff, and, on April 30, 1913, wrote to the plaintiff, saying that he has .purchased a house and that he would vacate the premises to the plaintiff by the middle of the next month. He in fact did vacate the premises before the middle of May, and, on the fourteenth day of May. sent to the plaintiff a cheek for the rent due on the fifteenth day of May, and also enclosed with the cheek a key to the premises.

The plaintiff testifies that he acknowledged receipt of the cheek and advised the defendant that he would hold him for the remainder of the year, that is. until the 15th.day of February, 1914. The defendant denies receiving any such letter. The plaintiff testifies that he did then take possession of the house, and made necessary repairs and used every reasonable means to obtain a tenant, but that he was unable to do so prior to February 15, 1914. It is the rent, at the agreed rental, from May 15, 1913, to February 15, 1914, that the plaintiff seeks to recover.

It should be added that at the conference between the plaintiff and the defendant on March 9, 1913, it was understood that Mrs. Utter should call upon Mrs. Rickard soon and determine just what repairs were required by Mrs. Rickard. Mrs. Rickard does not testify, but Mrs. Utter testifies that she did call upon the wife of the defendant and went over the matter of repairs, and that Mrs. Rickard stated that because of their having a small baby in the house, she did not want the repairs undertaken until the first of May. We think this statement of facts is sufficiently full to show the questions involved.

The ease was tried to a jury in the municipal court, and upon motion made by the plaintiff at the close of all the evidence, court directed a verdict in favor of the plaintiff for the amount claimed by him.' Upon proceedings in error in the common pleas court the judgment entered on such verdict was affirmed.

This court is of opinion that the judgment is right, and that the facts would not justify any other conclusion, and that, upon the ground that substantial justice has been accomplished, the judgment should be affirmed.

A majority of the court are of the opinion that the judgment should be affirmed upon the additional ground that there is no evidence on behalf of the defendant tending to establish a legal defense to the claim of the plaintiff.

The law as to the effect of holding over under the terms of a written lease is so well settled in this state that the authorities need not be reviewed or even cited. We find that when the defendant held over after February 15, 1913, he became bound for another year in accordance with the terms of th.e original written lease. Thereafter a new lease for a different term was proposed and in fact agreed upon, but it was never consummated by the proper execution of the new lease by both parties, or by any change of possession that could be referable to that lease. In fact, the defendant does not assert that he is bound by the terms of the new lease. We are unable to see that the negotiations with reference to the new lease is any way operated to excuse him from the obligation that he was under, for the year beginning February 15, 1913.

The evidence sufficiently explains the reason why the repairs were not made before May 1, and before that date arrived the defendant had written the letter in which he stated that he was about to vacate the premises. Even if the repairs were not made before May 1, as the defendant seems to claim they should have been, the failure to make the repairs would not operate to release the defendant from the obligations of his lease. He might have some remedy by way of an action for damages or otherwise for the failure to carry out the agreement to make repairs, but certainly such failure would not violate the terms of a lease that was in effect before the agreement to repair was made.

It is claimed that there was an acceptance of the surrender of the lease by retaining the key that was sent to the plaintiff through the mail. We can not accept to this claim. One can not escape the obligations of a lease merely by sending a key to the lessor through the mail, or leaving it under the door; nor is the lessor bound, under such circumstances, to return the key, which would, no doubt,, be returned to him again. Parties are not obliged to pass keys, or other emblems, of title or possession, back and forth in order to assert their legal rights to leased premises.

For the reasons stated, the judgment of the common pleas Court will be affirmed.

Richards and Kiimkead, JJ., concur.