text:
    CONTRACT TRANSFERRING RIGHTS UNDER A PATENT.
    [Circuit Court of Summit County.]
    Charles L. Douglass et al v. J. B. Campbell, Receiver.
    Decided, December, 1902.

      Patents — Assignment of, License for Use of, Grant of — Contract Conveying Interest in Patent — Word “License” Used in the Contract, But t>y Its Terms the Interest Conveyed Was an Assignment— Implied Terms of Contract.

    1. Where a contract transferring a right or interest under a patent makes use of the word “license” in describing the interest transferred, but by the terms of the contract all interest in the patent was transferred, the contract will be construed as an “assignment” of the patent.
    2. Parol evidence can not be used for the purpose of either reforming or construing such a contract.
    Caldwell, J.; Hale, J., and Hull, J., concur.
    Heard on appeal.
   The plaintiffs in this case, on March 15, 1894, were the owners of a certain patent pertaining to tubular steam boilers, and, on that day, as such owners, they entered into a contract with The J. C. McNeil Company, a corporation under the laws of Ohio, having its place of business at Akron, Ohio, which contract reads as follows:

“This memorandum of agreement made by and between the several owners in common of letters patent of the United States No. 478,690, dated July 12, 1892, issued to Herbert F. Cook, assignor, for an improvement in steam boilers, namely, C. L. Douglass, C. B. Squire and Mary C. Bingham, owners of one-half of said interest; Herbert F. Cook, C. N. Schmick, S. E. Welker and J. H. King, who are respective owners of one-eighth interest each under the said patent, parties of the first part, and The J. C. McNeil Company, a corporation organized under the laws of the state of Ohio and having its office and place of business at Akron, in the said state, party of the second part, hereinafter called the McNeil Company, made at Cleveland, Ohio, this fifteenth day of March, 1894.
“Witnesseth: That the parties of the first part have licensed and do hereby license and empower the party of the second part to manufacture, sell and use the steam boiler described in letters patent of the United States No. 478,690, dated July 12, 1892, and issued to Herbert F. Cook, assignor, and by him assigned to the said several parties of the first part, during the life and continuance of the said letters patent and during the life and continuance of any reissue of said letters patent. This license shall also be construed to cover any and all improvements in the said steam boiler which may be hereafter made and described and patented to the said parties of the first part, or any of them, during the life of any patent for said improvements issued by the United States of America, or any reissues thereof for any such improvements, devices or inventions as may be acquired by any of the said parties of the first part. The license hereby granted to the party of the second part by the parties of the first part, is an exclusive license to manufacture, sell and use the said boiler and any and all improvements described in the said letters patent hereinbefore recited, and also any and all improvements therein for which patents may be issued to any one of the said parties, or acquired by them, throughout the United States of America, excepting the states of California, Oregon and Washington, during the term and period covered by said letters patent No. 478,690, or during the life and continuance of any letters patent which may hereafter be secured or owned by the parties of the first part or either of them upon any improvements, devices or inventions to be attached to or make a part of said steam boiler described in said letters patent No. 478,690.
“2. In consideration of the said foregoing exclusive license granted by the parties of the first part to the party of the second part to manufacture and sell boilers and improvements therein described in letters patent of the United States No. 478,690, and any reissue thereof or improvements thereon, the said party of the second part hereby agrees with the parties of the first part to pay to the said parties of the first part the sum of $1.00 per horse-power for every boiler manufactured and sold by said party of the second part under letters patent of the United States No. 478,690, provided said boiler is of the capacity of one hundred horse-power or more; upon boilers having a capacity of less than one hundred horse-power and equal to or greater than seventy-five horse-power, the royalty thereon shall be seventy-five cents per horse-power; upon all and any boilers manufactured and sold by said party of the second part embodying the said improvements whose capacity is less than seventy-five horse-power, the license fee or royalty to be paid therefor by said second party shall be fifty cents per horse-power.
“It is expressly understood and agreed between the parties hereto that in ease the party of the second part should use any devices covered by letters patent of the United States for improvements in the said boiler described in said letters patent No. 478,690, which may hereafter be secured or owned by said parties of the first part or any of them, the party of the second part shall not pay any other royalty than that described in and provided for by the terms of this paragraph.
“3. The party of the second part agrees with the parties of the first part that it will account and pay over to the parties of the first part, semi-annually, on the first day of October and the first day of April in each year during the life of letters patent No. 478,690, and so long as the party of the second part manufactures and sells and uses boilers thereunder, for royalty on all boilers manufactured and sold and delivered by the said party of the second part during the six months immediately preceding the first day of September and the first day of March respectively in each year; that is to say, the said party of the second part shall on the first day of April in each year account for and pay royalties on all boilers which have been manufactured and sold and delivered during the six months preceding the first day of March of said year and on the first day of October, shall account and pay over to said parties of the first part all royalties due for the six months immediately preceding the first day of September in said year. Until further notified by any of the several parties in interest, all of the said accounts shall be rendered and payment made to Messrs. Bingham, Douglass & Squire, of Cleveland, Ohio.
“4. It is further agreed by and between the said parties hereto that for the purposes of this contract, one horse-power is defined to be ten square feet of heating surface in tubes.
“5. The parties of the first part agree to furnish to the party of the second part all drawings, measurements and information necessary to enable it to build a complete boiler under said letters patent No. 478,690.
“6. The said party of the second part agrees with the said parties of the first part that it will use all reasonable efforts during the continuance of this contract to promote the sale and use of the improvements covered by the said letters patent; that it will by all reasonable means in its power extend the use and sale of boilers embodying the said improvements throughout, all the territory covered by the said contract. The said party of the second part expressly agrees that it will not during the term of said contract, manufacture, sell or use, or promote the manufacture, sale or use of any water-tube boilers other than the one described in the said Cook patent No. 478,690. For the purpose of this contract a water-tube boiler is defined to be a steam boiler having tubes filled with water and upon the outside of whieh the heat impinges.
“7. The said second party hereby admits the validity of said letters patent in consideration of the granting of the said license; and it is further mutually agreed between the said parties that in the event that the said letters patent No. 478,690, dated July 12, 1892, be finally determined to be invalid by the United States courts of final resort, then and in that case this contract shall be void from the date of such detérmination.
“8. The said second party agrees to keep full and accurate accounts of all sales made by it under this contract, whieh shall be open at all reasonable times to the examination of said first parties of their representatives duly authorized by them in writing.
“In witness whereof the parties have hereunto set their hands on the day and year first above written.
“ (Signed) Mary C. Bingham,
“C. L. Douglass,
“C. B. Squire,
“H. P. Cook,
“J. H. King,
“C. N. SCHMICK,
“(Signed The J. C. McNeil Co., “S. E. Welker.
“By A. M. Cole, Pres’t.
“ J. B. Campbell, Sec’y and Treas.”

Some time thereafter, and after The J.C. McNeil Company had been making boilers under this patent, that company went into the hands of a receiver. J. B. Campbell, the defendant in this ease, is now the receiver. He complains the boilers then under construction under the order of the court, and, under the same order, proceeded to carry on the business, manufacturing other boilers under the patent, but claims that he did not construct the boilers other than those under way after he became the receiver under the agreement above set forth, but says that he went into court, and, under the order of the court, upon a proper application, obtained leave to purchase a one-eighth interest of the patent, and, under that purchase, he has been operating since he obtained the one-eighth interest referred to.

This action was brought, asking him to account for all the boilers he has constructed as receiver, and he sets up the defense that he has constructed no boilers under the agreement save the two that lie completed after the receiver was appointed: After the case was appealed to this court he obtained leave to amend his pleading and set up certain facts, and, on the facts so set up, asked for a reformation of the above contract.

The contract is termed by the parties a license. In several places where they seek to denominate the character of the contract, it is called a license, and, in one place, it is called an exclusive license; and the defendant claims that the contract conveyed to the McNeil Company only a license to use the patented improvement. The plaintiffs claim that the contract is more than a license, and that it is a grant and conveys all the monopoly that the plaintiffs had in the patent; and that claim is based upon the language used in the contract — that it conveyed to The J. C. McNeil Company the power to manufacture, sell and use said steam boiler described in the letters patent; and the contract says that “The license hereby granted to the party of the second part by the parties of the first part, is an exclusive license to manufacture, sell and use the said boilei and any and all improvements described in the said letters, patent.”

And the question to be determined in the case is, whether the contract is a license, or an assignment, or a grant.

Formerly in the patent law there was a difference between an assignment and a grant, which distinction was determined by the amount of territory covered. If the territory covered in the assignment was all the territory covered by the patent, it then amounted to an assignment; if the territory covered was only a part of that conveyed by the assignment, it was known as a grant.

This contract, reserving a part of the United States to the plaintiffs under the former classification formerly in the patent law, would be known as a grant, but this distinction has now and grant. An assignment is where the party owning the patent whether covering the entire territory covered by the patent or only a certain portion of the same, is now called an assignment. So that, in the further consideration of this ease, we will not undertake to keep up any distinction between assignment and grant. An assignment is where the party owning the patent, transfers all his interest and title and right to make, use, and sell, to his assignee. A license is where he transfers simply a use, simply a right to make and use, or use and sell, or make and sell the article made; it conveys no interest in the patent nor in the monopoly. Every patent gives to the patentee a right to make, use, and sell the article patented, and, when he disposes of this, he disposes of all that he has, and the one who obtains it from him has his entire right; while a license only operates under the rights of his licensor. So that if this contract transferred, as it purports to, all the interest that the plaintiffs had in the patent, then it can not be a license, but is an assignment. If the contract had omitted calling the interest transferred a license, there would be no room for construction of the same.

It is urged in the case, that, in the petition first filed, the parties themselves treated the contract as nothing more than a license and so denominated it. In determining, then, what was transferred by this contract, wre have the language of the contract, which would make it an assignment, and also the language of the parties calling it a license, and we are called upon to say which it is.

The defendant, in his cross-petition to reform this contract, has offered testimony tending to show that the plaintiffs agreed to prosecute in their own name all suits of infringement of the patent, and has also offered evidence tending to show that The 'J. C. McNeil Company had no right to allow others to make the boiler containing the patented improvement; and from this testimony, which is contradicted by the plaintiffs, it is insisted that we should reform this contract so that it will appear when reformed, that the plaintiffs were to prosecute all suits for infringement, and had reserved to themselves the right to grant to others the privilege of operating under the patent. And it is claimed that if the contract is so reformed by inserting these two elements, then it will appear that the plaintiffs retained to. themselves the title to the patent, and having retained the title to the patent, the defendant, The J. C. McNeil Company, is a licensee under such reformed contract. The evidence is of that character that we would not be warranted, in law, in reforming the contract as we are asked to do. The evidence must be clear and certain before a reformation can be had. It is doubtful in our minds whether the evidence would warrant the court in believing that the agreement as to prosecutions and letting to others a right under the patent was as claimed by the defendant. He takes upon himself the burden of producing sufficient evidence to warrant the court in making the reformation. In this he has not sustained himself.

But it may be claimed that, although we can not use this testimony to reform the contract, yet it is proper testimony to consider in constructing the contract; and, if this testimony is properly in the case for such purpose, then it may be claimed that when the two elements above referred to are added to the contract, it clearly appears that the contract grants nothing but a license. And it may be considered to be the law that if parties make such a contract and write therein that the grantor is to carry on all suits for infringement, and is to grant other rights to operate under the patent, that he has then not disposed of his entire title, for he can not prosecute unless he is the owner of the title, nor can he grant licenses to others, or rights and privileges to others, under the patent, unless he is the owner; or, if he is a licensee, that his license shall run to him and to his assigns, etc.

The question-arises, then, can these two elements be added to the contract by oral testimony? In determining this it is necessary to consider what the contract is as it stands. The granting part of the contract is the language used in making an assignment. Instead of the parties calling it an assignment, they have called it a license; and it has been determined in patent eases under such contracts that the contract is an assignment and not a license (Moore Mfg. & F. Co. v. Hanger Co., 69 Fed. Rep., 998).

In Waterman v. MacKenzie, 138 U. S., 252, 256, Mr. Justice Gray says :

“Whether a transfer of a particular right or interest under a patent is an assignment or a license does not depend upon the name by which it calls itself, but upon the legal effect of its provisions. ’ ’

The contract, then, as it is written, is an assignment. The law implies certain rights to the assignee under such an assignment, and one is that he is the only proper party to prosecute suits for infringement of the patent; and the other is that he has the right to grant to others a privilege to use the patent. The contract then would read, by supplying what is implied, that the defendant, The J. C. McNeil Company, was to prosecute all suits for infringement, and that he alone had the right to license others to operate under the patent. If this testimony, then, can be used as it is intended in construing the contract, it is to be used to contradict what is implied in the contract as it is written. This, we understand, can not be done.

In Fawkner v. Wall Paper Co., 88 Ia., 169, second syllabus, it is said:

“Whatever the law implies from the language used in a written contract is as much a part of the contract as that which is expressed therein; and if the contract, found in the light of what the law thus implies, is clear, definite and complete, it can not be added to, varied or contradicted by extrinsic evidence.”

In Bryan v. Duff, 40 Pac. Rep., 936, it is said that the parol evidence is no more admissible to contradict or vary a contract implied from a written instrument than it is to contradict or vary the express terms of such instrument.

It has been repeatedly held that parol evidence can not be introduced to vary the clear and settled legal effect and meaning of a contract, nor can it be introduced to contradict or vary whatever the law implies from the contract.

It is unnecessary to cite further authorities except Harris v. Oil Co., 57 Ohio St., 118, 125. In his opinion, in that ease, Burket, C.-J., says:

“While the written instrument must be construed in the light of the surrounding circumstances, no new terms or conditions can be injected into such instrument, and no existing terms or conditions can be taken therefrom by averment in a pleading.”

Weed & Miller, for plaintiffs.

Allen & Cobbs, for defendant.

i And quoting from Kellogg v. Larkin, 3 Pinney (Wis.), 123, he says:

■' “ ‘No averments can give to an agreement character it had not, and no admission can take from it the character it had.’ The effort to bind and change the construction of the written instrument in question, by averments in the pleadings as to its true construction and meaning, must therefore fail, and the instrument must be construed, and its legal effect declared from the language used when read in the light of the surrounding circumstances. ’ ’

The evidence introduced can not be used to reform the contract, nor is it competent to use the same in construing the contract; it is not admissible for such purposes.

The defendant claims that he, as receiver, did not come into the right to have and use the rights of the McNeil Company under the contract unless he adopted the same; and this is grounded upon his claim that the contract is but a license, and the license conferred upon the McNeil Company only a privilege, and that that privilege is not transferable, neither by law nor by the terms of the contract, and that he can not be held to account in this case unless he has adopted the same and estopped himself in that way from asserting that he has not, or that he could not use, this right that was personal to the McNeil Company. But this claim is based upon the ground that the contract creates only a license. Having found the contract to be an assignment, it created in the McNeil Company a property, and, it being a part of the property of the McNeil Company, it would, by force of his being made receiver of the property of the McNeil Company, become a part of the property in his hands as such receiver. And it is our holding in this case that he must account to the plaintiffs as asked in the petition, and, for such accounting, the case is referred to E. A. Hershey as referee to determine the amount due the plaintiffs under the petition in this ease; to Report his findings of the amount due in detail at the next term of this court, and the case will stand continued for such report.


source: Caselaw Access Project

license: Public Domain

text:
    METHOD OF WORKING OUT RIGHTS OF A CHILD BORN AFTER EXECUTION OF A WILL.
    [Circuit Court of Lucas County.]
    Frederick A. J. Weiland, an Infant, by his Guardian, v. Anna S. Muntz et al.
    Decided, October 3, 1903.

      Partition — Of Property Specifically Devised — Where Plaintiff Was Born after Execution of the Will — And Property was Acquired after Execution of the Will — And there is a Homestead Subjéct to Widow’s Life Estate — Guardian Disqualified from Serving.

    1. A qualified guardian may be substituted for a disqualified guardian as a party to a suit.
    2. W died testate, leaving fourteen children. The youngest child was born after the execution of the will, and property was acquired after the execution of the will. The property owned by W at the time the will was executed was specifically devised, with the exception of the homestead in which the widow was given a life estate. Held: That the one-fourteenth interest in the estate which this child, otherwise unprovided for, takes by virtue of Section 5961, must be worked out of the entire estate, and not out of the after acquired property or the homestead burdened with the life estate; and the right exists, therefore, on the part of the guardian of this child to maintain a suit for the partition of property specifically devised.
    Parker, J.; Haynes, J., and Hull, J., concur.
   This is an action for the partition of real estate. It comes into this court by way of appeal. It is submitted to us upon the pleadings and an agreed statement of facts. There have been various parcels of land partitioned with respect to which no question has been made. It is now sought to partition a certain city lot and a part of another lot, of which the defendant, Gooderman, claims to be the owner in entirety. It is claimed by this defendant that the plaintiff had no title in this real estate; that he, plaintiff, is not a tenant in common with defendant and that plaintiff, therefore, has no right to have partition.

It appears that John Weiland was the owner of this and of other real estate in his lifetime; that he died in the year 1889, in. Wood county, Ohio, testate as to part of his estate and intestate as to part; that his will was executed in 1880; that a certain tract of land with respect to which he died intestate — a tract of about thirty-nine acres — was situated in Wood county, Ohio, and was acquired by him after he had made his will. It also appears that the plaintiff, who is one of his children — there being in all fourteen children — was .born in the year 1886, some six years after this will was executed and some three years before the death of decedent

It is contended on behalf of the plaintiff that no provision was made for this child in the will, and that therefore, by force of Section 5961, Revised Statutes, the will was revoked, pro tanto, or was invalid as to this child, and that this child comes in for a full portion of the estate, that it takes by inheritance precisely as if no will had ever been made devising any of these lands, and that therefore it takes its share as a vested estate in each parcel of land of which the decedent died seized.

On the other hand it is contended that this is not so; that in the first place there is provision made for this child, so that it takes nothing by force of Section 5961; also that if provision were not made so that it takes an interest under that section; that what devolves upon it is a right to recover an aliquot part of the estate of the decedent — not in kind, not in specie, whether in land or in chattels — but as if it were in the nature of a debt of the estate to such heir, or a claim in his favor as a creditor enforceable against the estate and against the heirs as well.

By his will the decedent devised one tract of land in Wood county, Ohio, to eight of his children, naming them, and devised this lot and part of a lot in controversy to five other of his children, naming them. This still left undisposed of a fifty-acre tract of land in Wood county, constituting the homestead, with respect to which his will contains a provision that his wife —who afterwards became his widow — should have an estate for life therein, and that the remainder should go to his children generally, without naming them. It is needless to repeat that the name of the after-born child did not appear in the will. The undevised thirty-nine acre tract was acquired by the testator after the execution of his will.

It is contended on behalf of defendant, Gooderman, that the plaintiff should be relegated in the enforcement of his rights to the undevised land in Wood county and to this fifty-acre tract of land; that he should not be permitted to recover anything out of either of the tracts specifically devised to the children named.

There was a preliminary question in the ease which I have passed by, and which I will notice here. Suzanna Weiland is named in the will as executrix and she has qualified as executrix. By the will she is made guardian of all the minor children, and by virtue and in pursuance of that provision of the will she was appointed guardian of this plaintiff as well as of the other minor children of the decedent. Her right to prosecute this action as such guardian was questioned by a demurrer filed in this ease. It seems to have appeared to the court below that she was disqualified from acting as such guardian, and it seems to us very clear that, under the circumstances, she was disqualified. It also appears by the decision in the case of Scobey v. Gano, 35 O. S., 550, which was a proceeding to appoint as guardian a person duly qualified, that the former action of the court in appointing a disqualified person might have been attacked collaterally — that is to say, it might be ignored — and it is urged here that the action of the court of probate in appointing this guardian may be and should be ignored, and that therefore the case was not properly in court. The court below, however, on motion of the plaintiff, permitted another person to be appointed subsequently as the guardian - of the ■ estate, to be substituted for the person disqualified to act as such guardian. This was done over the objection of this defendant; but subsequently the defendant answered and the case went to trial and was decided in the court below upon the merits, and from the judgment of that court an appeal is taken here.

Aside from the question as to whether or not the defendant waived this objection by answering instead of allowing judgment to be entered and prosecuting error, we are of the opinion that the action of the court in allowing this substitution was strictly legal and regular; that the substituted guardian is duly in court; that the plaintiff is duly in court, and that the judgiment of the court herein will be binding upon the parties, so that they need not have any apprehension of, such judgment as may be entered herein being ignored or treated as a nullity because of the action having been begun by Suzanna Weiland •as guardian. Upon that point we hold against the defendant.

Coming back to the consideration of the main ■ question, as to whether plaintiff acquired any estate or interest so as to become a tenant in common in this property, I should state a few additional facts.

Part of the owners of the undevised thirty-nine acre tract in Wood county, soon after the will was probated, in 1890, conveyed their interest to a man by the name of Radcliff. After-wards Radcliff instituted an action in partition in Wood county making this plaintiff a party defendant. The plaintiff, by guardian ad litem, appeared and answered, and claimed an undivided one-fourteenth. The land was partitioned and a one-fourteenth interest was set off to and received by the guardian of the plaintiff. Soon after the probating of this will the owners of the lot and part of a lot here in controversy conveyed the same by warranty deed to one Brown. Brown subsequently conveyed the property by warranty deed to the defendant, Gooderman.

Among the claims of Gooderman is this: that his minor — this plaintiff — should have worked out for him his interest in the whole estate by the partitioning of the tract of land specifically devised to the eight heirs, or upon the partitioning of the thirty-nine acres of land not devised that it should be worked out of the fifty-acre homestead tract in which the widow has a life estate. The tract specifically devised to the eight heirs is not partitioned in this proceeding. The claim is that primarily it ought to have been worked out of the thirty-nine acres, and that it not having been worked out there, plaintiff is precluded from having it worked out of this land specifically devised; also that the plaintiff should seek satisfaction of his claim out of the fifty acres yet undisposed of. It will be remembered, however, with respect to the fifty acres, that a life estate having been given therein to the wife, that during the existence of that life estate it can not be partitioned as against her wish, or without her consent, and partition can not now be had, so that if the plaintiff should undertake to work his interest out of that land, his right to do so would probably be postponed until after the death of the widow. It might be effected by some form of decree, but it could not be occupied or enjoyed, or the plaintiff could not have an interest in possession until after the death of the widow.

The language of the statute upon this subject does not seem to us to be entirely clear or free from doubt as to the question made. It seems to us to afford very strong ground for the contention made by the defense. A preceding section (Section 5959) making provision for a posthumous child — one bom after the death of the testator — provides that the birth of such a child shall have the effect of revoking the will, if it were the only child. Section 5961 says nothing about the will being revoked or rendered a nullity, either pro tanto or otherwise, and it provides for the cases of posthumous children where there are other children, and pretermitted children who are not posthumous, that is to say, such as are born after the making of a will and before the death of the ancestor, and the plaintiff comes within that class, that is not posthumous child, but stands upon the same ground here, there being other children. And this section of the statute reads:

“When a testator at the time of executing his will shall have a child absent and reported to be dead, or having a child at the time of executing the will, shall afterward have a child who is not provided for in the will, the absent child, or the child born after the execution of the will, shall take the same share of the estate, both real and personal, that he would have been entitled to if the testator had died intestate.”

In this ease the share would be one-fourteenth, and therefore he must take one-fourteenth of the estate — but whether in specie, or whether, as if there had been no will made, he would inherit an interest in each tract of land, the statute does not say. It provides further — following, right along with the readJ ing that—

“toward raising which portion the devisees and legatees shall equally contribute in proportion to the value of what they shall receive under the will, unless in consequence of a specific devise or bequest, or o£ some other provisions in the will, a different apportionment among the devisees and legatees shall be found necessary, in order to give effect to the'intention *of the testator, as to that part of the estate which shall pass by the will. ’ ’

That, I say, seems upon the reading to afford considerable ground for the contention of the defendant here that there is a portion to be raised by contribution of the devisees, respect being had to the will and the purpose of the testator, so that if a certain share should be exonerated from the burden that circumstance should be respected in apportioning the obligation, that the portion should be made up by contribution, not necessarily in specie as if it were a general claim — and that the aftei'-born child will not inherit it in the sense or in the degree that he would if the ancestor had died intestate. And there are other clauses of the statute bearing upon this point and adding force to this contention, in Sections 5978 and 5979. And our attention is called to the fact that this statute is substantially, if not exactly, a transcript of the statute of Massachusetts upon the same subject, which has been in force in that state for a long time; and it is urged that therefore, upon a principle applicable to a case of this kind, it should receive the construction that the statute in Massachusetts has received at the hands of the courts of that state, and in that connection our attention is called to a case in 137 Mass., 527 (Bowen v. Hoxie), where it is held, in effect, that the claim is in the nature of a debt of the estate. In that ease there were not devises of real estate, but were bequests of personalty, and in working out the share of a posthumous child the court required that the property which constituted the residuum of the estate, that not specifically bequeathed, should be first exhausted before a specific bequest should be touched. I will not stop to read from the case. It appears to proceed upon a very fair course of reasoning.

Before proceeding further with this discussion I should come back to a matter which I have passed; and that is the question made as to whether or not provision was made for this child in the will? Now we have cited to us against the contention of the defendant, the case of Rhodes v. Weldy, 46 O. S., p. 234. I read from the opinion by Chief-Justice Owen. The child not provided for in that case ivas named Elizabeth, and the judge says:

‘‘‘If Elizabeth was provided for by the will of her father, it was not revoked by her birth after its execution, and the judgment below should be affirmed. If there was such provision made, it is to be found in these -words: ‘ I will and devise to my wife, Harriet Young, all my real estate wherever situate, to use and occupy as to her may seem proper, during her natural life, and. after her death to "the heirs of' her body begotten: ’ ’ ’

Substantially the same as the first provision of the will under consideration; that is item 3 of that will. He then continues (p. 236):

“It will not be contended that'this is a specific provision for the plaintiff. If it is a provision at all, it is so because the language is comprehensive enough to include her. It was evidently written with a view only to the maternity of the ‘heirs of her body begotten,’ and without reference to their paternity. It was intended as a comprehensive direction of the course which the property should take after the immediate object of the testator’s bounty should die, unless she should die without issue, in which ease other direction is made in the will. Much learning and research have been expended in discussing the character of the devise in remainder, and whether it is a vested or contingent interest.
“In the view we take of the ease, this is wholly immaterial. The question is, has Elizabeth been provided for in the will in the sense of the statute. It is not conclusive of this question to say that a ‘disposition’ has been made which may inure to her benefit. ‘Disposition’ and ‘provision’ are not necessarily convertible terms.”

He then proceeds to hold that notwithstanding the fact that this general provision in favor of the children or heirs of the body of his wife would inure to the benefit of this after-born child, the same as for the benefit of the others, that could not under the statute be deemed a provision for that child. That was a decision under Section 5959 of the statute and not under Section 5961; but according to our view the statutes in this respect are alike, and therefore, the authority is in point.

A later ease, in the 66th O. S., 233 (German Mutual Ins. Co. v. Lushey et al), is Tinder Section 5961, and is in point as indicating what the court regard as “provision” for an unborn child. There the will specifically provided: “Should any child or children, we now having only one, George Gabriel, be born to me hereafter, it shall in no wise alter or revoke this will and testament.” Now the wife of the testator in that case was at the time enciente with this after-born child, and he seems to have had in mind the probability of its being born alive and attempted to cut it off and made a provision in respect to it; but the Supreme Court says that is not a provision for it, but against it, and gave full force and effect to Section 5961 and so gave to it an undivided one-half of the estate.

Now I will say something more upon this question as to the right or interest that the plaintiff inherited — whether the right of contribution is to be worked out in a court of equity as if it were a claim, secured, perhaps, by an equitable lien, or whether it was an estate east upon him by inheritance the same as if' there had been no will.

I have already indicated the line of argument of the defendant and the chief authority relied upon, to-wit, the Massachusetts case, and will say that we were very strongly inclined at first to follow that decision and that course of reasoning with respect to our statute; but upon further consideration we have concluded that the question is set at rest in the state of Ohio by this decision to which I have just adverted in the 66th Ohio St. Reports, and that the decision there requires us to resolve this question against the contention of defendant. To be sure, in that case this precise point does not appear to have been debated or in any way called to the attention of the court and perhaps was not considered by it. There was a single tract of land; the land was devised by the husband; the child living at the time the will was executed was cut off by the will and the court decided that the child afterwards born was not cut off. The question arose between the after-born child and the mortgagee of the husband. The husband had undertaken to mortgage the entirety. The after-born child, in the action between it and the mortgagee, claimed an undivided one-half. The court held that the child was entitled to an undivided one-half. It does not hold, however, that it had a right to compel contribution or had a right to compel the mortgagee of the entirety to make up to it the value of this undivided one-half — he retaining the title to the land, but it holds that by force of this statute the title to an undivided one-half of this land was cast upon this child. After discussing the case, the opinion closes with this sentence (p. 241) :

“It follows, therefore, that George Lushey, the husband of the testatrix, when he gave the mortgage to plaintiff in error, owned but one-half of the premises described in the mortgage, and that the judgment of the court of common pleas was right, and that the circuit court did not err in affirming the judgment.”

If the court had taken the view contended for by the defendants here, it would have been obliged to say that he owned the whole premises, subject to this charge, and would have been obliged to adjudge that the child could not recover in that form of action then pending before the court, but must, enforce payment of an amount equal to th,e value of the estate. The action was by the grantee in a mortgage to foreclose the mortgage upon the entirety; it was in an action where the child appeared and answered with respect to that state of facts that the court says that the plaintiff in error owned one-half of the premises described in the mortgage. The syllabus reads as follows:

“Where a testatrix, having a child living, devises all her estate to a third person (in this case her husband), without making provision in her will for an after-born child, such after-borii child, if it survive the testatrix, by virtue of the provisions of Section 5961, Revised Statutes, will inherit from the mother as her heir at law, as if she had died intestate, notwithstanding that by clear and explicit language in the will such testatrix undertakes to disinherit such after-born child.”

Now in entering judgment here, as we shall, in favor of the plaintiff and against the defendant, adjudging that the plaintiff is the owner of an undivided one-fourteenth interest in this land and is entitled to partition, we believe that we are following the law as laid down by our Supreme Court. There is much authority upon this question and in support of this conclusion, or, I may say, in harmony with this decision of the Supreme Court. We cite 2d Woerner on tbe American Law of Administration, page 1240, being the latter part of Section 565, and cases there cited, which we have examined, and one especially, which I shall not take time to read from, but which seems to be very much in point — the ease of Ward v. Ward, 120 Ills., 111.

Beard & Beard, for plaintiff.

Brown & Oeddes, for defendants.

There is a question presented in this ease as to improvements, rents and profits, but we understand that there is no difference about'the rights of the parties as to these and they will be worked out without the'intervention of the court. The ease will be retained in this court and an order of partition will be issued out of this court.


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    MORTGAGE EXECUTED BY AN INDIVIDUAL MEMBER OF A FIRM IN BAD FINANCIAL CONDITION.
    [Circuit Court of Hamilton County.]
    W. A. Goodman, Jr., et al v. Joseph Rawson et al.
    Decided, January 14, 1904.

      ■Mortgage — Treated as an Assignment to a Trustee — But not in Con- ' temptation of Insolvency — Purpose of a Member of a Partnership— In Mortgaging His Individual Property to Raise Funds for the Firm — Determines the Character of the Transaction.

    1. Although, all the proceedings, in the matter of securing a loan from a hank through an intermediary, may have the appearance of a transaction hy the intermediary on his own account, yet when subsequent acts discredit this theory, and at the last the bank buys in the property covered by the mortgage securing the loan, taking title in the name of the intermediary, the mortgage will he treated as an assignment to a trustee.
    2. Where a member of a firm, not actively participating in the business of the firm, executed .a mortgage on his individual property for the purpose of raising money for the use of the firm, the question whether or not the mortgage was executed in contemplation of insolvency with intent to prefer one or more creditors, depends on what the mortgagor' contemplated and intended at the time he executed the mortgage, rather than on the financial straits of the firm of which he may not have had full knowledge.
    Jelke, J.; Swing, J., and Gieeen, J., concur.
   The plaintiffs seek to have a mortgage, executed and delivered by the defendant, J. W. Cotteral, to the defendant, Joseph. Rawson, declared an assignment in trust to a trustee, made in contemplation of insolvency with the intent to prefer one or more creditors, under Section 6343, Revised Statutes, as in force on January 6, 1896.

In December, 1895, the defendant, The First National Bank, held seven promissory notes executed and delivered by J. W. Cotteral and J. W. Cotteral, Jr., and payable to the order of J. ‘W. Cotteral & Company, a firm composed of J. W. Cotteral and junior, amounting to $27,500. At that time the firm had a contract for the erection of a school house in Detroit, Michigan; at a cost of nearly $200,000. The work was not progressing according to the terms of the contract, the estimates were delayed, and when obtained were less than anticipated, material-needed first in construction was not delivered, while that which could not then be used was on the.ground, with the vendors demanding payment. Thereupon J. W. Cotteral, Jr., applied to the First National Bank for an additional loan of $12,000, which the officials of the bank agreed to secure' for him. A mortgage on the real estate of J. W. Cotteral, Sr., was offered as security for the old debt and the present loan, making in all the sum of $39,500.

Afterwards the defendant, Joseph Rawson, who was vieet president of the bank agreed to make the loan, and on January 6, 1896, a mortgage was executed and delivered to him by J. W. Cotteral upon all his real estate to secure ten (10) notes amounting to $39,500, executed by J. W. Cotteral and J. W. Cotteral, Jr., and payable to the order of J. W. Cotteral & Co.; and at the same time Joseph Rawson executed and delivered to the bank his promissory note for $39,500 and gave the notes of the Cotterals for the same amount as collateral security, and from the proceeds thereof gave a check to the bank for $27,500, for which he received the seven Cotteral notes, which were surrendered to the Cotterals, and caused a check for $12,000 to be credited to the account of J. W. Cotteral & Co. in the bank. It is claimed that this loan was, as appears on the face of the transaction, made by Mr. Rawson on his individual account; but he admits that he had never before loaned money upon real estate security, that he never paid the bank any interest on his note, saying that he expected the interest collected from the Cotterals on the collateral note to pay it That a part of the property was bought by the bank at a consideration less than the amount of the note of Mr. Rawson, and that the title was taken by Rawson as trustee for the bank. Although the original transaction had the form of a bona fide loan from Mr. Rawson to J. W. Cotteral, the subsequent acts of the parties continuously discredit it, until the final act of purchasing the property in the name of Mr. Rawson as trustee reveals the true situation of the parties. We are impelled therefore to hold that the mortgage was an assignment in trust to a trustee.

But we find, however, that it was not made in comtemplation of insolvency with the intent to prefer one or more creditors. The facts relied on by plaintiffs to prove that it was so made are the financial condition of the firm of J. W. Cotteral & Co. at the time, the pressing demands of creditors during a few months just prior, the devices resorted to by J. W. Cotteral, Jr., to conciliate the creditors and postpone payment, and the threatened cancellation by the school board of the Detroit contract, of all which matters J. W. Cotteral had little, if any, knowledge, as he was practically out of the partnership for a year prior to its assignment. Counsel for plaintiffs admit this, but say that J. W. Cotteral, Jr., knew them and that therefore the senior member was bound to know. It is time that he would be bound by the action of J. W. Cotteral, Jr., as a member of the firm or as his agent; but the inquiry here is what did the mortgagor contemplate and intend at the time he executed the mortgage? What was the state of his mind, and how did the facts relied on influence him? It is clear that if not brought to his attention they could in nowise have influenced his mind or fixed his purpose in the execution of the mortgage.

John G. Healy and Malcolm McAvoy, for plaintiffs.

Stephens, Lincoln & Stephens, contra.

It appears from the evidence that J. W. Cotteral, Jr., negotiated the loan, and at his request the note and mortgage was signed by J. W. Cotteral.

We hold therefore that the mortgage was not made in contemplation of insolvency with the intent to prefer one or more creditors, and there will be a decree for the defendants.


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    LIABILITY FOR INJURIES TO ONE FALLING DOWN AN OPEN ELEVATOR SHAFT.
    [Circuit Court of Lucas County.]
    The Chamber of Commerce Building Company v. Frederick M. Klussman.
    Decided, October 31, 1903.

      Negligence — Tenant of a Building Attempts to Enter an Elevator— Door Open and Elevator at an Upper Floor — Tenant Falls to Bottom of the Pit — Rule as to Passenger and of Reasonable Oare— Previous Condition of Door — Emergency Necessitating a Discharge of Jury.

      1. Where the wife of a juror dies during the trial of a cause, and the juror states that owing to his bereavement he will not be able to perform the duties of a juror for the time being, and one of the parties to the trial is unwilling to proceed with eleven jurors, an emergency has arisen which falls within the provisions of Section 5195, authorizing a court to discharge a jury.
    2. In a suit for damages on account of a fall down an elevator shaft, where the claim is made that the door of the shaft was open at a time when the cab was absent, and a probable reason for the door being open was that the latch was out of order, permitting tlie door upon being closed, to rebound and remain open, it is admissible to show that on previous occasions the door had behaved in that way, as tending to show a previous and continuous defective condition,- and notice thereof to the defendant.
    3. One who has a right to ride on an elevator is not required to make a full and attentive observation before attempting to enter the cab, but if he finds the door of the shaft open he is at liberty to assume the presence of the cab, and to rely to some extent at least upon its being there; and one in that situation is en- • titled to the benefit of the rule applying to a passenger on an elevator.
    Parker, J.; Haynes, J., and Hull, J., concur.
   The action in the court below was by Klussman against The Chamber of Commerce Building Company to recover for an injury claimed to have been sustained through the negligence of the defendant company in allowing a door leading to an elevator shaft in the Chamber of Commerce building, where Mr. Klussman was a tenant, to remain open, whereby he was misled supposing the cab of the elevator to be there, and walked into the shaft and fell to the bottom thereof and was severely injured. He recovered in the court below a verdict for $5,000, which amount the court required him to reduce to $2,500, and judgment was entered for that amount. But The Chamber of Commerce Building .Company, not being satisfied, prosecutes error here. It contends that the court erred in discharging a former jury which had heard a part of the testimony in the case.

It appears that while the trial of the case was in progress the wife of one of the jurymen died, and that necessarily required a cessation of the trial for a while; and afterwards it appears that the juror came into court and reported that he would not be able to sit in the case any more at that term on account of his bereavement, and the court, upon consideration of the matter, discharged the jury. One of the parties was ready to proceed with the remaining jurors, but the other party was not, and the court holding that the other party could not be compelled to proceed, there was nothing left for the court to do but to discharge the jury; and we think that this was an emergency coming within the provision of Section 5195, Revised. Statutes, authorizing a court to discharge a jury, and that there was nothing in that of which the plaintiff in error had a right to complain.

It is said that the court erred in admitting certain testimony at page 56 of the record, and turning to that page we find some testimony upon the subject of the condition of the elevator upon former occasions. One of the complaints about this elevator was that the boy who operated it was negligent in leaving it open; another was, that the hook on the door was out of order and that when the door was pulled shut it would not latch or lock and remain shut but would rebound, and that the door was open upon this occasion through the negligence of the elevator boy in failing to shut it, or in consequence of such defect in the lock, and this question was asked:

“You may state what you observed and how the door operated that day?,” referring to a former occasion. This was objected ' to, the objection overruled and defendant excepted. The witness answered: “I went in to take the elevator and the car was not there. I waited, oh, a moment, I guess, and the car came down and I stepped inside, and the car started and the elevator boy pushed the door to and it flew back; my attention was called to it, and I called his attention to it. ’ ’

Now we think that that was competent on the question of • whether the lock of the elevator worked properly, or whether it was out of order, and whether it was probably in consequence of that that the door was open upon the occasion that the plaintiff below received his injury, and in that view we are sustained by a decision in 21 Colorado Reports, page 435, The Colorado Mortgage & Investment Co. v. Rees, which is directly in point; and we think too that the ruling rests upon reason and does not require very much authority. The third paragraph of the syllabus is as follows:

“Where, in an action for damages for injuries sustained by falling down an elevator shaft, the scope and tendency of the plaintiff’s evidence was to show that the elevator door was open at the time of the accident because of the defective condition of its lock, as claimed by plaintiff, it is admissible to show that the door was open at times antecedent to the accident in corroboration of that claim, and as tending to show a previous and continuous defective condition and notice thereof to the defendant. ’ ’

The important question in this case, and the one most debated is whether the plaintiff below was guilty of contributory negligence. It appears that upon the occasion when he was injured, he left his office on the second floor and went to the elevator and inquired of the boy operating it where he could find a hammer which he required for opening a box of goods in his office. The boy stated to him that he could probably obtain a hammer from the janitor on the floor next below, and thereupon he went into the elevator and was taken by the boy down to the floor next below, to-wit, the first floor of the building, and went to the room of the janitor, which was some seventy-five or eighty feet from the elevator, made known his wants to the janitor, was furnished with a hammer, and came back to the elevator. The door was open, as I have said, and supposing that the elevator-cab was still there — and without stopping to make careful observation — he walked right in and fell down to the bottom, some fifteen or sixteen feet, and was injured. It appears that the hallway was reasonably well lighted by the sun. This accident happened about three o ’clock in the afternoon and there was no necessity for any artificial light in the hall, and, customarily, artificial lights were in the cabs. The plaintiff says there was no artificial light on this occasion, but we think the preponderance of the evidence establishes the fact that there was a light in the cab. This elevator-shaft accommodated two elevators, running side by side and both opening out into the main hall. The one upon which plaintiff had come down one floor was the easterly elevator of the two; being one that was sometimes used for freight, it having a place below that where passengers ride for the carriage of freight, although it was a regular passenger elevator. The testimony convinces us that there were electric lights burning in both elevator cabs.

The question is, whether the plaintiff below was guilty of negligence that will defeat his recovery because of his having failed to make such observation before he attempted to get into the cab as would have disclosed to him that there was no .cab there — as would have disclosed to him that he was going to walk into a pit. Our attention is called to a number of cases ■decided by courts of last resort in different states, in some of which it has been held that a person going to an elevator shaft where a door was open, and falling down, was negligent and could not recover, and some holding that it was not negligence, but the circumstances of each case differ from every ■other. It would be interesting to refer to those cases and discuss them somewhat, but for lack of time it can not be done by us to-day. As in other cases of negligence so in elevator cases, each case stands upon its own facts, and it seems to us that these eases cited to us were all correctly decided and that they are not inconsistent with one another, though somewhat peculiar ■results seem to be attained. In Massachusetts there is a somewhat different rule of law as to the burden of proof, or the method of presenting a case than that generally prevailing upon the subject of contributory negligence. It appears that in Massachusetts it devolves upon the plaintiff to establish in the first instance that he was free from negligence — that he was not guilty of contributory negligence — and that, as I understand ■it, is by virtue of a statute of that state.

It is apparent that if the plaintiff had made careful observation, he would have discovered that there was no elevator-cab at this point at that time. The record discloses that the jury viewed the premises, and therefore we felt at liberty to view the premises, and did so. We discovered that the back part of the elevator-shaft is plastered and that it has a somewhat yellowish color, similar to the walls of this court room; that the shaft has in front open iron-work; that the doors are of somewhat the same character, and that the cab at the back is open iron-work, so that one looks through this iron-work and sees the ■yellow background of the plastered wall at the back part of the shaft, and our observation was that, whether there were lights in the cab or not, it would not be apparent to one approaching the elevator to ride in the cab that the cab was there or that the cab was absent, unless he made a somewhat careful observation. We came to this conclusion from the testimony of the witnesses as well as from our own observation, we having made observation when the cabs were there and also when the cabs were not there, and when they were lighted and when they were not lighted.

We are convinced by the testimony and by these observations that we felt at liberty to make, that one hurrying along about his business, with his mind somewhat preoccupied,' his attention and his thought not drawn directly to the question whether there was an elevator cab present or not — making a casual or a hasty observation with the door open — would not readily observe the absence of the cab. If those cabs were made with solid backs, having a different color from the wall of the shaft, for instance, the wall being black and the back of the cab white, or vice versa, then it would be apparent in an instant. Upon the occasion of the accident, according to the evidence, the westerly cab was down, and it had an electric light burning in it, and we observed the situation there with that state of facts existing, and our conclusion is the same upon that.

Now it does not appear from the authorities that one is required — one who has a right to ride upon an elevator — to make full, careful and attentive observation, but if he finds the door of the shaft leading to the cab, or where the cab ought to be, open, he is at liberty to assume its presence and to rely to some extent at least upon the cab being there. We are not prepared to say that one might walk blindly into a place of that kind without looking at all and yet be free from negligence, but if a hasty and .cursory observation of the situation would lead one to suppose that the cab was there, we do not believe that under the authorities he would be charged with negligence if he proceeded upon that assumption. It is clear that that is what the defendant did here; he supposed the cab was there; he assumed that it was there; he did this because of the door being open and because of the general appearance of things not attracting his attention to the fact that the cab was not there. Of course, if he had looked carefully down toward the floor, he would have observed that there was no floor there for him to step upon. And directly upon this subject is the ease of Tousey v. Roberts, 114 N. Y., 312, and where it is held:

John F. Kumler, J. Kent Hamilton, for plaintiff in error.

E. L. Twing, George E. Wells, for defendant in error.

“An elevator in a building, for the carriage of persons, is not supposed to be a place of danger, to be approached with great caution; on the contrary, it may be assumed when the door is thrown open by an attendant, to be a place which may be safely entered without stopping to look, listen or make a special examination.”

We think the court charged the jury very carefully as well as very fully in this case and that the plaintiff in error had no reason to complain of the charge. It is in some respects very favorable indeed to the plaintiff in error. In our opinion the defendant in error was entitled, under the circumstances existing at the time, to the rule applicable to a passenger upon an elevator. He went there for the purpose of taking a passage upon it and had a right to do so, and yet the court charged against him upon that proposition, and charged that the rule touching a passenger was not applicable to that situation. The court charged the jury that he must exercise ordinary care in approaching the elevator to discover whether there was a cab there or not, notwithstanding the fact that the door was open; and-we are not prepared to say that the jury was wrong in finding that he exercised ordinary care, nor can we say that, as a matter of law, he was guilty of contributory negligence, and therefore we feel obliged to affirm this judgment.


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    RESTRICTIVE COVENANTS CONNECTED WITH THE SALE OF A BUSINESS.
    [Circuit Court of Portage County.]
    John A. Ewing v. Erwin D. Davis.
    Decided, February Term, 1903.

      Injunction — Equity Jurisdiction — Where One in Selling a Business Agrees Not to Engage in the Same Line Again in That Territory— And Also Stipulates as to Liquidated Damages in the Event of Violation of the Agreement.

      1. Where one in selling his business to another agrees, for the consideration received, not to engage again in the same line of business within a specified territory of reasonable extent, either for himself or in behalf of any other person, so long as the purchaser is engaged in the same line in that locality, and further agrees that), in the event of violation on his part of any of the conditions of the agreement, he will pay to the said purchaser the sum of ?500 as liquidated damages, a court of equity has jurisdiction to enforce the restrictive covenant, notwithstanding the stipulation as to liquidated damages.
    2. In a case where the territory embraced in such a covenant is a county, and the business conveyed is that of a jeweler, optician and watchmaker, and the limit as to time is as above, the covenant is not unreasonable, nor oppressive, nor against public policy.
    Cook, J.; Burrows, J., and Laubie, J., concur.
   Plaintiff and defendant were engaged as partners in the business of jewelers, opticians and watchmakers at Kent, in this county. In June, 1900, plaintiff purchased from defendant for the consideration of $1,857.44 his interest in the business; and in the written contract of sale it was stipulated, “The said Davis further agrees for the consideration aforesaid not to engag i again in business as a jeweler, optician or watchmaker, as jeweler merchant or jeweler salesman, manager or peddler, on his own account or in behalf of any one else at any place in Portage county, Ohio, so long as said Ewing is engaged in said business in said Kent. And said Davis further agrees for a violation hereof on his part of any of the conditions and stipulations hereof to pay to the said Ewing as liquidated damages the sum of $500.”

After the sale Davis went to Cleveland, remaining there two years in business, and then returned to Kent and opened up a business as jeweler, optician and watchmaker, he being the manager of the business, which belonged to his brother. Plaintiff is still in business in Kent in the same room occupied by plaintiff and defendant before the purchase.

Defendant had for over twenty-four years been engaged in the jewelry, optician and watchmaking business in Kent; for six years prior to the same, being associated with plaintiff, and had a good reputation as a successful jeweler, optician and watchmaker throughout Portage county. At the time of the sale to plaintiff of his interest in the business defendant fully expected to remain in Cleveland, and stated to plaintiff that the amount of liquidated damages placed in the agreement was wholly immaterial to him, as he proposed to do business in the future in Cleveland.

The action is for an injunction to restrain defendant from conducting the business of jeweler, optician and watchmaker in Portage county in accordance with his agreement. The principal objections made by defendant to the granting of an injunction are:

First. That the only remedy that plaintiff has is an action at law to recover the $500 set forth in the contract as liquidated damages.

Second. That the covenant embraces too much territory, and is unreasonable and oppressive.

As to the first objection. It is true that the contract provides for the payment of $500 as liquidated damages in case of failure to perform the restrictive covenant; but that of itself is not sufficient to defeat the jurisdiction of a court of equity It is only when, from an inspection of the contract and the circumstances surrounding the parties at the time the contract was made, it appears that the covenantor was to have the alternative of performing the particular act or paying the specific sum, that an injunction will not be granted. If it was the intention of the parties at the time of the contract that the covenant was to be performed and the sum specified as liquidated damages was merely a, security that it would be performed, then the jurisdiction of a court of equity will not be excluded.

In the case of Diamond Watch Co. v. Roeber, 106 N. Y., 473, Roeber, the defendant, at the time of making the contract executed to the purchaser a bond in the penalty of $15,000, conditioned to pay that sum as liquidated damages in case of a breach of his covenant, and the court held that a court of equity had jurisdiction to compel the performance of the covenant by injunction. Andrews, J., in the opinion, says:

‘1 It is, of course, competent for parties to a covenant to agree that a fixed sum shall be paid in case of a breach by the party in default, and that this should be the exclusive remedy. The intention in this case would be manifest that the payment of the penalty should be the price of non-performance, and to be accepted by the covenantee in lieu of performance (Phoenix Ins. Co. v. Insurance Co., 87 N. Y., 400, 405). But the taking of a bond in connection with a covenant does not exclude the jurisdiction of equity in’a case otherwise cognizable therein, and the fact that the damages in the bond are liquidated doe's not change the rule. It is a question of intention to be deduced from the whole instrument and the circumstances; and if it appear that the performance of the covenant was intended, and not merely the payment of damages in case of a breach, the covenant will be enforced. It was said in Long v. Bowring, 33 Beav., 585, which was an action in equity for the specific performance of a covenant, there being also a clause for liquidated damages, ‘All that is settled by this clause is that if they bring an action for damages the amount to be recovered shall be $1,000, neither more nor less. ’ There can be no doubt upon the circumstances in this case that the parties intended that the covenant should be performed, and not that the defendant might at his option purchase his right to manufacture and sell matches on payment of the liquidated damages.”

What was the intent of the parties to this contract? Davis and Ewing had built up a trade in the jewelry, optician and watchmaking business. Davis had been a long time in the business, was known throughout the country as an expert jeweler, optician and watchmaker. It was of great importance to Ewing that he should not be a competitor against him in that locality. Davis had' determined to permanently quit the business at Kent and go to Cleveland and build up a city business. From these circumstances it is apparent that both the parties intended that the covenant was to be performed. Furthermore, the contract says, “And said Davis further agrees for a violation hereof on his part of any of the conditions and stipulations hereof to pay to the said Ewing as liquidated damages the sum of $500,” showing clearly that it was intended as a penalty for a breach of the contract and security for its performance, and not a consideration for the privilege of re-entering business.

In Dooley v. Watson, 67 Mass. (1 Gray), 414, Shaw, C.-J., says:

‘! The promise of the defendant to pay the plaintiff $100 if the defendant should fail to perform his agreement to convey the land, was merely a security for the performance of that agreement. When the penalty appears to be intended merely as a security for the performance of the agreement, the principal object of the parties will be carried out. The agreement between the parties in this ease is clearly an alternative agreement. It was an absolute agreement to convey real estate, and may be treated in all respects as such either in a court of law or equity.”

In Phoenix Ins. Co. v. Insurance Co., 87 N. Y., 400, it is held:

“If the primary intention was that the veiy thing covenanted should be done, the annexing of a penalty is regarded merely as a security for the performance of the covenant and not as a substitute for it.”

In Howard v. Hopkins, 2 Atk., 371, Lord Hardwicke said:

“In all cases where penalties are inserted in an agreement in ease of a non-performance, this has never been held to release the parties from their agreement, but they must perform it notwithstanding. ’ ’

In French v. Macale, 2 Dru. & W., 269, Lord Chancellor Sudgen very clearly puts the point. He says:

‘ ‘ The question for the court to ascertain is whether the party is restricted by the covenant from doing the particular act, although if he do it a payment is reserved; or whether according to the true construction of the contract its meaning is that the one party shall have a right to do the act on payment of what is agreed upon as an equivalent. ’ ’

As we have said, tested by these rules, there can be no question as to the proper construction of the contract between these parties.

Counsel for defendant calls attention to the case of Dills v. Doebler, 62 Conn., 366, and relies very much upon it. The facts of that ease are entirely different from the facts of the case under consideration. The clause of the contract passed upon was as follows:

“And it is further mutually understood and agreed by and between the parties hereto that the said Doebler may be at liberty to practice dentistry in said Hartford at any time after termination of this contract by the paying to said Dills $1,000.”

Andrews, C. J., who delivered the opinion, says:

“When the parties to an agreement have put into it a provision for the payment, in case of a breach, of a certain sum of money, which is truly liquidated damages, and not a penalty; in other words, when the contract stipulates for one of two things in the alternative, or on the one side the doing or not doing of certain acts, and on the other the payment of a certain sum in money in lieu thereof, equity will not interfere, but will leave the party to his remedy of damages at law (Shiell v. McNitt, 9 Paige, 101; Skinner v. Dayton, 2 Johns. Ch., 226, 235; Pomeroy Eq. Jurisp., Section 447). The case turns on the constructions to be given to the contract. If the defendant has agreed not to engage in the business of dentistry in Hartford for the term of ten years under a penalty of $1,000 for a breach, equity will restrain him; for a penalty is merely a security for the performance of the contract, and is not the price for doing what a man has expressly agreed not to do. But if, on the other hand, the true interpretation of the agreement is that the $1,000 was intended to be liquidated damages, then the court should not interfere by injunction, because the plaintiff has his complete remedy at law, and this mainly on the ground of the nature of the contract.

And then the learned chief-justice, in speaking of the contract, says:

‘ ‘ The contract presents an alternative. It virtually says to the defendant, ‘If you enter into the business of dentistry at Hartford after the termination of this agreement, you must pay the plaintiff the damages named. ’ The language used indicates this thought, and there is nothing in the relation of the parties, or in the business of dentistry, nor in the surrounding circumstances, to indicate otherwise.”

The syllabus of the case is as follows:

‘ ‘ Injunction will not issue to compel the defendant not to exercise his trade or business in a city or in fifteen miles thereof, he having agreed that he would not so exercise it, and that if he did, he would pay complainant $1,000, and it further appearing that he has not paid such sum, and is insolvent. ’ ’

We see nothing in this case in conflict with the views that we have expressed or the authorities referred to. Indeed the decision is in full accord with the rule laid down by Lord Chancellor Sudgen in French v. Macale, supra, which is the leading case upon the subject.

The second question made needs but little consideration as it seems to be well settled in this state that such a contract will be enforced. The defendant was a jeweler, optician and watchmaker ; his remaining out of business would not generally interfere with competition in that trade and could not therefore affect public policy. The restraint was partial, only applying to one county, and to continue only so long as plaintiff should remain in business at the village of Kent. Therefore it was not unreasonable or oppressive. There was also a valuable consideration. In Lange v. Werk, 2 Ohio St., 519, it is held:

“Before such contract can be enforced, it must appear from the pleadings and proofs: 1. That the restraint is partial. 2. Founded upon a valuable consideration; and, 3. That the contract is reasonable and not oppressive. ’ ’

Furthermore the very effect of the clause was to provide against the defendant engaging in business where he had established a special reputation as an expert in his particular trade which, as shown by the testimony, included all or nearly all of Portage county.

Stuart & Stuart, for plaintiff.

Siddall & Rockwell, for defendant.

In Morgan v. Perhamus, 36 Ohio St., 517, it is held:

“M, a married woman, engaged in cai’rying on the business of millinery and dress-making with her separate property, and on her own account, in the town of F, sold her stock of goods, together with the good will of the business, and engaged not to carry on the business at any time in the future at the town of F, or at any place within such distance of said town as would interfere with such business, whether the same was carried on by the purchasers or their successors: Held-. That such agreement in equity is binding, and that, in an action brought by the successors of the purchaser, M will be enjoined from carrying on such business in violation of the agreement. ’ ’

Finding and decree in favor of plaintiff, enjoining the defendant as prayed for in the petition.