author: JONES (O. B.), J. Jones (E. H.), J.

text:
    WILLS.
    [Hamilton (1st) Court of Appeals,
    December 12, 1914.]
    Swing, Jones and Jones, JJ. ■
    Edgar Stark, Exr. v. Frances M. Cress et al.
    1. Limiting Prima Facie Evidence in Will Contest to Matters Probably Occurring in Probate Erroneous.
    To Instruct a jury in a will contest with reference to tbe admission of such will to probate, that “by prima facie evidence we mean that these matters certified by the probate court probably o'ceurred,” is to give less than full value to the certificate of the probate court and is erroneous, and the error involved therein can not be cured by a correct statement in another part of the charge.
    2. Witness to Will Does not impliedly Certify Validity of Will,
    Refusing to charge in a will contest proceeding that a person who attaches his name as a witness to a testamentary instrument impliedly certifies that the testator is of sound mind and competent to make a will is erroneous and while the law will permit him to subsequently testify to the contrary, because the truth, if such it be, should be learned, yet the jury in weighing his testimony may consider the fact of such implied contradiction.
    3. Subscribing Witness Not Required to Testify to Testator’s Mind and Memory.
    An instruction that “it is not essential to the validity of a will that all or any of the subscribing witnesses should testify that the textatrix was of sound mind and memory, provided you find from all the evidence before you that she was of sound mind and memory,” was a proper one to give in the case under consideration.
    4. Requirement That One Undertaking to Make Will Shall Be of Sound Mind and Memory.
    The requirement that a testator shall be of sound mind and memory at the time of the execution of the will, does not mean that one who has been weakened by sickness is incapable of making a will, but only that he shall then have sufficient memory and the mental capacity to understand fully what he is doing.

      Stephens, Lincoln & Stephens and Rufus B. Smith, for plaintiff in error.

      Horstman <& Ilorstman and W. S. Walker, for defendants in error.
   JONES (O. B.), J.

The action below was brought to set aside the will of Mary Ann Britt, the petition alleging that “said paper writing is not the last will and testament of said Mary Ann Britt.” A verdict of the jury was had setting aside the will and judgment thereon was entered by the court below.

It is argued that this verdict and judgment was against the weight of the evidence. There is no evidence sufficient to sustain the verdict upon the ground of any restraint or undue influence exerted over the testator at the time of the execution of the will, so that it can only be sustained on the ground that the testator was not then of due mental testamentary capacity. There is considerable conflict of testimony upon this question, to such an extent that we would be unwilling to set aside the verdict of a jury and reverse the judgment on this ground.

Plaintiffs in error, however, claim that the court below erred in refusing to give certain special charges requested by them, and also erred in certain particulars in the general charge.

Section 12083 G. C. in the chapter relating to the contest of a will is as follows:

“On the trial of such issue, the order of probate shall be prima facie evidence of the due attestation, execution, and validity of the will or codicil. ’ ’ ,

In its general charge to the jury the court used this language:

‘ ‘ The order of probate is prima facie evidence of the due attestation, execution and validity of the will.
“By ‘prima facie’ we mean if you find that these matters certified to by the probate court probably occurred, they will prevail, unless the contrary be found by you by all the evidence in the case now being tried. ’ ’

This charge as given is erroneous. Instead of giving full value to the certificate of probate by the probate court as the statute requires, this charge would compel the jury to find “that the matter certified to by the court probably occurred.” That such a charge constitutes prejudicial error is held in Hall v. Hall, 78 Ohio St. 415; Seal v. Goebel, 31 O. O. C. 286 (11 N. S. 433). Before the giving of this general charge the court (also R. 524, 525 and 526) in a discussion with counsel in the presence of the jury, charged the jury in the same words, and further qualified that part of the charge by reading in connection with it a special.charge which had previously been given at the request of counsel for defendants as follows:

‘ ‘ The order of the probate court admitting the will of Mary Ann Britt to probate raises a presumption that the will so probated is the valid last will and testament of Mary Ann Britt, and before you would be entitled to return a verdict setting aside her will, you must find that the evidence against the will outweighs both the evidence in its favor and the presumption arising from the order of the probate court admitting the will to probate as the valid will and testament of Mary Ann Britt. ’ ’’

It is claimed f)y counsel for defendant in error that this special charge and other parts of the general charge cured the error contained in the general charge above quoted. This claim can not be sustained, as it can not be determined which part of the instructions the jury followed, and this instruction must therefore be regarded as prejudicial error. Rapp v. Becker, 26 O. C. C. 321 (4 N. S. 139); Eureka Fire & Marine Ins. Co. v. Purcell, 10 Circ Dec. 528 (19 R. 135).

In our opinion it was error for the court to refuse special charge No. 5, which was asked by defendants before argument, and is as follows:

“A person who attaches his name as a witness to a testamentary instrument, impliedly certifies that the testator is of sound mind and competent to make a will; and while the law will subsequently permit him to testify to the contrary because the truth, if such it be, should be learned, yet the jury trying the case may consider the fact of such implied contradiction in weighing his testimony. ’ ’ ^

This charge was taken from the case of Stevens v. Leonard, 154 Ind. 67 [56 N. E. 27; 77 Am. St. 446], The Supreme Court of Indiana, in its opinion in thi@ ease, discusses fully the position of a witness to a will, and quotes numerous authorities to sustain it. • It is too long to quote in full all the pertinent part, but it is so applicable to this case that we can not refrain from quoting the following portion found on page 31:

“It'can not be thought possible that an honest man, of ordinary intelligence, would subscribe his name as a witness to an instrument executed by a person whom he believed to be of unsound mind or under coercion or constraint. The fact that such a man voluntarily identifies himself with thé transaction as a witness is an indication that in his opinion the person executing the instrument is competent to do so. The witness must be understood to attest not merely the act of signing, but also the mental capacity of the testator to sign. A subscribing witness may, it is true, be heard to impeach the will; but, if he assumes that attitude towards it, he does so at the peril of his reputation for candor and veracity. Such an attitude is not merely inconsistent with the position he has voluntarily taken, but is suggestive of fraud and double dealing. It involves a betrayal of ■confidence, and, if the witness is believed, in some instances it may be attended with the most distressing consequences. The credibility of the witness becomes at once a matter of serious inquiry, and his desertion of his position as a sustaining witness is an important fact for the consideration of the jury. In such •a case it is entirely proper for the court to inform the jury that ■they may consider the fact of such implied contradiction, if they find it exists, in weighing his testimony. A direction of this character is not an invasion of the province of the jury, nor is it objectionable on the ground that it singles out a witness for attack or criticism. It is the duty of the court in all cases to instruct the jury upon the law of the case, whether the testimony of one witness or the testimony of a score of witnesses is comprehended within the rules necessary to be stated for their guidance. In the instruction under examination, the court did nothing more than declare, as it was competent for it to do, a familiar rule of law; leaving the application of it entirely to the jury, and without giving them to understand what his own opinion on the subject was.”

Special charge No. 4 relating to the testimony of the same witnesses to the will, was properly refused by the court, as it might be held to invade the province of the jury by stating that their testimony should be viewed with suspicion. State v. Tuttle, 67 Ohio St. 440 [66 N. E. 524; 93 Am. St. 689]; Sharp v. State, 16 Ohio St. 218.

Special Charge No. 6 was requested by 'counsel for defendants, in the following language:

“It is not essential to the validity of a will that all or any of the subscribing witnesses should testify that the testatrix was of sound mind and memory provided you find from all the evidence before you that she was of sound mind and memory.”

It appears from the record that this charge was submitted to the court in writing, while the argument by counsel for plaintiffs was in progress before the jury, and it was then refused by the court without having been brought to the attention of the opposite counsel — leading counsel being still engaged in argument to the jury, and that such counsel had no knowledge of it until the hearing of the motion for new trial.

The charge was a proper one and should have been given. The fact that it was not asked until the argument before the jury was in progress is not sufficient reason for refusing it. Cleveland Punch and Shear Works Co. v. Carbon Co. 75 Ohio St. 169 [78 N. E. 1009], We have been cited to no statute' requiring the submission of a charge to opposite counsel before presentation to the court, but it is customary so to do, and it is the privilege of counsel to be advised of all steps that are being taken in the trial of a case. The request for this charge should have been brought to the attention of counsel for plaintiff. The record would indicate that it was not so done because of the fact that it was refused by the court while the argument being made by leading counsel, was still proceeding.

The court also erred in refusing Special Charge No.. 1 requested by defendants, which is as follows:

“If prior to the execution of the will you find that Mrs. Britt had sufficient mental capacity to understand the nature and extent of her property, to realize the relation which she held to those who had claims against her, and to make a selection among them-, and that while having such mental capacity she gave instructions to her attorney as to what disposition she wished to make of her property by will.
“And if you further find that her instructions were carried out by her attorney, and that while having the mental capacity before stated the will was read over to her and she assented to it,
“And if you further find that when she signed said will she knew that she avas signing the will previously drawn by her at-tomey in obedience to ber instructions, and she knew it had been drawn according to her instructions and approved by her, and intended by her signature to give assent to such instrument as her will, knowing its contents, then I charge you that if such instrument were properly executed and witnessed, it would be her valid last will and testament.”

Our statute requires that a testator shall have sound mind and memory at the time of the execution of a will. This does not, however, mean that a person who has been weakened by sickness is incapable of making a will; it simply means that the testator must then have sufficient memory and mental capacity necessary to understand fully what he is doing. If he had previously considered all the questions involved and determined the disposition to be made of his property, he can carry out that determination by the execution of a will previously drawn or the instructions for which have been previously given, if he has strength sufficient to know that it carries out such disposition. Parker v. Felgate, 8 Probate Div. 171; Perera v. Perera, 1901 Appeal Cases, 354; Hathorn v. King, Exr. 8 Mass. 371 [5 Am. Dec. 106; O’Brien v. Dwyer, 45 N. J. Eq. 689, 696 [17 Atl. 777]; Schouler, Wills, 3 Ed. Sec. 73.

We find no other errors in the record prejudicial to plaintiffs in error.

Because of these errors in the charge, the majority of the court are of the opinion that the defendants below were prejudiced in the submission of the case to the jury, and that the motion for a new trial should have been granted. The judgment is therefore reversed.

Swing, J., concurs.

Jones (E. H.), J.

dissenting.

While agreeing that the erors occurred as pointed out by the majority opinion, I can not concur in a judgment of reversal, being of the opinion that the evidence so clearly shows mental and physical incapacity as to make the errors non-prejudiciah


source: Caselaw Access Project

author: CHITTENDEN, J.

license: Public Domain

text:
    EXPLOSIVES — RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    March 29, 1915.]
    Kinkade, Chittenden, and Richards, JJ., of the sixth district sitting by designation.
    Cincinnati, H. & D. Ry. v. John Hahn.
    1. Negligence in Placing of Railway Torpedo Must be Sfiown.
    One claiming to Have been injured by being’struck by a piece of metal thrown by the explosion of a railroad torpedo, is not entitled to recover unless it can be shown that the railway company was guilty of negligence in placing the torpedo where it was placed.
    2. Injury Occurring from Railroad Torpedo Twenty-Five Feet Above Torpedo not to be Anticipated.
    The manifest weight of the testimony in the instant case is to the effect that railroad torpedoes do not throw particles above the waist line, and the injury from which the plaintiff suffered having occurred while he was on an overhead bridge twenty-five feet above the rails, such result of a torpedo explosion could not have been reasonably expected by the railway company, and it was error for the trial court to refuse to direct a verdict for the railway company.
    [Syllabus by the court.]
    ERROR.

      Waite <& Schindel, for plaintiff in error.

      Horstmam <& Horstman, for defendant in error.
   CHITTENDEN, J.

The action was brought in the Superior Court by the plaintiff, John Hahn, against the Cincinnati, H. & D. Ry. to recover damages alleged to have been sustained by reason of being struck in the jaw by a particle of metal from an exploded railroad torpedo. The trial resulted in a verdict and judgment in favor of the plaintiff for $1,000.

It is claimed by the plaintiff in. error that the trial court erred in refusing to direct a verdict in favor of the defendant at the close of all the evidence; that the verdict and judgment are contrary to the evidence and that the damages are excessive.

The Cincinnati. H. & D. Ry. tracks crossed under what is known as the Hopple street bridge at an acute angle. The evi-denee tends to show that the plaintiff was about to go upon the bridge when a torpedo was exploded by a passing locomotive pulling a passenger train. It is claimed that the location of the torpedo is shown to have been some 15 or 20 feet northerly from the line of the bridge. The bridge itself was 25 feet 4 inches above the rail of the track upon which the train was being operated. A considerable number of witnesses testified as to the distances that particles of exploded torpedoes will fly. It is claimed by the railroad company that the evidence tends to show that the particles of an exploded torpedo will in no event fly in an upward direction. An examination of the evidence on this question discloses but one witness who testifies to particles flying in an upward direction to any extent. One witness testifies to scars from exploded torpedoes upon a bridge some 25 feet above the railroad track over which he had operated an engine as a locomotive engineer. It appears, however, that his knowledge is based upon hearsay evidence. One other witness testifies to a sear on a telegraph pole 8 feet above the ground, but upon further examination of his evidence it appears that the rail upon which the torpedo was placed was upon a trestle and that the particle flew directly sidewise from the rail, striking the telegraph pole at a point 8 feet above the ground. A number of old and experienced railroad men testified that they had never known of particles flying high enough to injure people above the waist line. The evidence of an expert in the manufacture of railroad torpedoes shows that in. a large number of tests, not less than 200, he did not .find that particles flew higher than three feet above the top of the rail.

In Cleveland, T. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. 821; 52 L. R. A. 142], it was held that the use of signal torpedoes being necessary, negligence in their use is not to be presumed but must be proven either directly or by proof of facts from which negligence will reasonably follow and be presumed. Assuming that the torpedo was exploded at the point claimed by the plaintiff below, and that he was struck by a particle from the torpedo, he is not entitled to recover unless it can be found that the railroad company was guilty of some act of negligence in placing the torpedo at the point claimed.

It is clear from the evidence as shown in tbe record that no such action on the part of an exploded torpedo as would endanger people on the bridge or at a point occupied by the plaintiff at the time of his injury, could have been reasonably anticipated by the railway company. We think that the evidence entirely fails to prove negligence upon the part of the railroad company, or to prove facts from which negligence could be inferred.

The trial court should have granted the motion of the defendant to direct a verdict in- it's favor at the conclusion of all the evidence. For such error the judgment of the superior court will be reversed, and this court will enter the judgment in favor of the defendant that should have been entered in the superior court.

Kinkade and Richards, JJ., concur.


author: JONES (O. B.), J.

text:
    ERBOB — REFEREES
    [Hamilton (1st) Court of Appeals,
    February 28, 1916.]
    Jones, Jones and Gorman, JJ.

      John Bryan v. D. DeMott Woodmansee.
    1. Motion for New Trial Refused and Bill of Exceptions Required to Review Findings pn Error.
    In order to review the findings of a referee on the evidence, a motion for a new trial must he filed and when overruled a hill of exceptions prepared and filed with the referee for his allow' anee and signature thereto, and a motion lies to strike from the files a hill of exceptions purporting to embody proceedings before a referee but in no way authenticated by him or by the judge of the court in which the referee was appointed.
    2.' Bill of Exceptions Struck from Files for Lack oF Authentication by Referee Does not Authorize Dismissal of Error Proceedings.
    The fact that the granting of such a motion leaves no bill of exceptions before- the court, does not authorize a dismissal of the petition in error, but the record as it stands, with the bill of exceptions excluded, showing no substantial error, the judgment will be affirmed.
    ERROR.

      Keifer & Keifer and Hosea & Knight, for plaintiff in error.

      Chas. W. Balter and W. R. Coll' is, for defendant in error.

      Motion to certify overruled, June 6, 1916, Bryan v. Woodmansee, 61 Bull. 196.

   JONES (O. B.), J.

Eaeb of the two actions which were consolidated into one before trial in the. superior co.urt, was brought for an accounting between the parties as to sundry transactions in which Bryan had furnished to Woodmansee sums of money from time to time to be invested for his benefit. Certain investments had been made by Woodmansee, .and money had been repaid by him on account of principal and of interest or income, and heel aimed to have fullly accounted to Bryan, and offered to convey and transfer t-o him certain real estate, notes and other property still in his hands resulting from said investments. Bryan however refused to accept said property and insisted that Wood-mansee’s account was not true and complete and that he should, be held for all money received together with interest thereon; that he had guaranteed all investments made by him and should himself stand for and make good all losses that had occurred, and that he should be allowed no fees for any services rendered.

After the cases were consolidated and ordered to proceed under the ease in which Bryan was plaintiff and Woodmansee defendant, and the issues had been made between the parties, on February 28, 1913, a receiver was appointed to take charge of certain property and securities and the ease was referred to a referee to hear the testimony and report separate findings of fact and law. .

The cause was duly heard by the referee, who filed his report April 13, 1914, finding on the facts that there was nothing due from Woodmansee to Bryan, but that allowing him reasonable-' attorney’s fees for services rendered, his credits would be $1,000 in excess of all proper charges against him, for which excess no judgment was prayed; and that as a matter of law, all possible claims in favor of Bryan were barred by the statute of limitations ; and that the costs should be equally divided between the parties.

April 14, 1914, defendant filed a motion to confirm the report of the referee, and for judgment. April 17, 1914. plaintiff' filed a motion to set aside the report of the refei’ee. March, 12, 1915, the report of the referee was confirmed, except that all costs were taxed against plaintiff, and judgment was entered for defendant.

April 19, 1915, a bill of exceptions was filed by plaintiff, in the court, which was allowed and signed by Judge Pugh. It appears to contain testimony and other evidence in the form of numerous exhibits, had before the referee, but it is not signed or in any way authenticated or certified to by him, nor is the certificate of Judge Pugh to that effect; nor does it show that any of the evidence was directly heard in court before him.

Error proceedings are prosecuted here from the judgment of the superior court; The matter comes before this court now (1) on a motion of defendant in error to strike the bill of exceptions from the files, and (2) on a motion to dismiss the petition in error.

(1) A trial before a referee proceeds as before a court, and his. decision “may be excepted to and reviewed as in a trial by the court.” Section 11479 G. C. To review the findings of the referee on the evidence it is therefore necessary to file a motion for a new trial with such referee, and upon its being overruled, to prepare and file with the referee a bill of exceptions a-nd secure his allowance and signature thereto. Guthrie v. Milling Co. 9 Circ. Dec. 739 (17 R. 257); Woodward v. Brockell, 35 O. C. C. 534 (21 N. S. 223), and cases cited.

It is contended, however, by counsel for plaintiff in error, that the referee in this case was without power because he was not appointed under Sec. 11475 G..C. by consent of the parties, but under Sec. 11476 G. C. by the court alone without the consent of the parties; that the action being for the recovery of money, was one in which plaintiff was entitled to a trial by jury, therefore the court had no power to appoint a referee without consent of parties.

The entries referring to the ease are as follows:

February 28, 1913:

“And upon application and consent of parties and to expedite the hearing and disposition of the cause, the case is referred to William P. Rogers, as referee to take the testimony of parties and witnesses and to receive and consider in addition thereto any depositions of non-resident witnesses that have been or may be taken by the parties in the usual form upon due notice, and upon completion of the evidence and arguments submitted, to return all the evidence so taken and received, to the court with separate findings of law and fact thereon, for final disposition by the court.
“Consent: John Bryan by Hosea & Knight, Attys.”

May 10, 1913:

“The court on its own motion hereby appoints William P. Rogers as referee herein, who was duly sworn and qualified to hear testimony and report the testimony and his findings of fact and law to this court, together with all other matters and things in question or pertaining to this cause with all convenient speed; said referee is hereby granted authority and power to compel the attendance of witnesses and the production of such documents as may be necessary to carry out the purpose of this order.”

It will be observed that there is no practical difference in the orders so far as the powers or duties of the referee are concerned. The first order not only recites the consent of the parties, but also has the written consent of plaintiff. This is not in any way withdrawn, nor does the later entry revoke or cancel the former one, and as both entries were permitted to stand, it is probable that the later entry was made only for the purpose of showing the fact of the referee’s acceptance and qualification. Then, too, the action as framed was one invoking the equity powers of the court, both parties praying for an accounting, and was triable to a court and not to a jury. Plaintiff made no demand for a jury and took no exception to the appointment of a referee^ but appeared and proceeded to trial before him without objection.

It is also urged on behalf of plaintiff in error that while Mr. Rogers was called a referee he was in fact a special master commissioner, and that therefore it was proper in this ease to take the bill of exceptions before the court instead of before the referee. The difference between the powers of a referee and a master commissioner is set out in the statute and is adverted to in the cases above cited, and is discussed in Williams v. Stevens, 13 Dec. Re. 485 (1 C. S. C. 176). There is no question but that the appointment made in this ease was that of 'a referee and not a master commissioner. This was recognized too late by counsel for plaintiff when on May 7,1914, they filed the following motion to re-refer to the referee conditionally:

“Now comes the plaintiff and pending the consideration by the court of the motion to reject the report of the referee in this cause, and, conditional upon the overruling of said motion, in whole or in part, moves the court as follows:
“First, that, in the event of said motion to reject, being overruled in whole or in part, the court re-refer the said report to the referee to enable the plaintiff tovmake a motion for a new trial before said referee and to enable the plaintiff to make ex-eeptions and prepare a bill of exceptions and have the same ■signed according to law by said referee.
“Second, and the plaintiff asks that said referee, in the event of a motion for new trial being made and exceptions having been taken and settled as indicated as above, return said report with said motion and bill of exceptions duly signed to this court for further action.
“ (Signed) John Bryan, plaintiff, by Keifer & Keifer,
“Hósea & Knight,
‘ ‘ His Attys. ’ ’

The motion to strike the bill of exceptions from the files is therefore granted.

(2) The fact that this leaves no bill of exceptions before the court, however, does not authorize the court to dismiss the petition in error, and the motion to dismiss is overruled.

But the entire record, with the bill of exceptions excluded, fails to show any substantial error to the prejudice of plaintiff, and the judgment is therefore affirmed.

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


author: POLLOCK, J.

text:
    JURY — WILLS.
    [Harrison (7th) Court of Appeals,
    April Term, 1916.]
    Spence, Pollock and Metcalfe, JJ.
    H. L. Slemmons et al. v. Julia A. Toland et al.
    1. Verdict in Will Contest by Three-Fourths or More of the Jury Sufficient.
    Article 1, Sec. 2, of the Constitution, and Sec. 11455 G. C., includes actions to contest the validity of a will, and a verdict in such actions may he rendered upon the concurrence of three-fourths or more of the members of the jury.
    2. Order in Which Signatures Are Affixed to a Will Not Essential.
    A will, otherwise regularly executed in conformity with the provisions of Sec. 10505 G. C., is not invalidated by the fact that one of the subscribing witnesses to the will signed as a witness ,before the testator signed the will, where the signing was one continuous transaction.
    ERROR.

      Healea & Kinsey and A. O. Barnes, for plaintiffs in error.

      P. W. Boggs, B. II. Minteer and Westenhaver, Boyd & Brooks, for defendants in error.
   POLLOCK, J.

Plaintiffs in error commenced an action against the defendants in error in the common pleas court of this county to contest the validity of the will of Elizabeth Slemmons, deceased, Avhich will was on August 1, 1914, duly probated in the probate court of Harrison county, Ohio, and an issue was made up whether or not the writing produced is the last will of Elizabeth Slemmons.

A trial was had in the court of common pleas, which resulted in a verdict sustaining the will. This action is prosecuted to reverse the judgment thereon rendered for errors which the plaintiffs claim occurred in the trial of the cause in the court below.

The court charged the jury that three-fourths or more of their number could return a verdict, and the verdict returned by the jury was concurred in by only ten of the jurors.

Article 1, See. 5, of the constitution of this state is as follows :

‘ ‘ The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.”

Section 11455 G. C., which was amended after the adoption of this provision of the constitution in order to give effect to the constitution, provides, in so far as it refers to this question, that:

“In all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number. The verdict shall be in writing and signed by each of such jurors concurring therein.”

The plaintiffs contend that the legislature only provided for a verdict by three-fourths of the jury in a civil action, and that the contest of a will is not a civil action but a proceeding provided by statute. That the term “civil actions” in this section embraces only such cases as were before the code known as actions at law and suits in equity. Section 11237 G. C. defines an action as follows:

“An action is an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judgment or decree, by which a party prosecutes another for the redress of a legal wrong, enforcement of a legal right, or the punishment of a public offense.”

And Sec. 11238 provides that:

“There shall be but one form of action, to be known as a civil action. This requirement does not affect any substantive right or liability, legal or equitable.”

Thus it appears that a “civil action” includes all ordinary proceedings involving process, pleadings, and ending in a judgment which finally determines the matter in controversy between the parties before the court.

In Webb v. Stasel, 80 Ohio St. 122, 125, Shauek, Justice, said:

“It has long been familiar to counsel that the civil action of the code includes all such proceedings as prior to its enactment. were regarded either as actions at law or suits in equity, and rights of action since authorized by statute unless the authorizing statute itself defines a mode of enforcing the right at ■variance from the procedure prescribed by the code.”

We are not left to the general provisions of the code to determine the character of the proceeding to contest the validity of a will, but Sec. 12079 provides .that a person interested in a will or codicil that has been admitted to probate may contest its validity by a civil action in the common pleas court.

The legislature by this section of the code has provided the action by which parties interested in the distribution of an estate, which has been disposed of by will, may contest the validity of the will in the common pleas court. We have never had any constitutional limitations on the mode of procedure in actions of this nature, but the kind of action has always been fixed by legislative enactments.

By the act of February 26, 1824, it provided that the contest of the validity of a will should be by a bill in chancery. This mode continued until the adoption of the civil code and the act of March 14, 1853, relating to the jurisdiction of the probate court, where the right to contest the validity of a will was authorized by petition to the court of common pleas of the proper county. Since that time the act above referred to has been amended, and we now have Sec. 12079 G. C., providing that the remedy may be by a civil action. The contest of the validity of a will is now a civil action, and the trial proceeds under the civil code, except where changed by the code in the chapter providing for the contest of wills, and then the trial must proceed in conformity with such special proceedings. Dew v. Reid, 52 Ohio St. 519 [40 N. E. 718].

In Wagner v. Ziegler, 44 Ohio St. 59 [4 N. E. 705], Justice Spear said:

“The statute provides the order in which the testimony shall be introduced, gives legal effect to the will and order of probate, and requires the case to be submitted to the jury. In other respects the trial is to be conducted as other .jury trials are conducted ; and it is the duty of the court in that ease, as in other cases, to give proper instructions to the jury. ’ ’

The only special statutory provision relating to the contest of the validity of a will is the requirement in regard to the issue — that it must be made up either by pleadings or by order on the journal, the legal effect of the order of probate of the will, and the order that the testimony shall be introduced; in all other respects the trial shall proceed as other civil actions.

We find no special requirement in regard to the verdict of the jury; and the provisions of the constitution in regard to the verdict of the jury in civil cases, and the statute enacted to carry into effect that provision, controls in actions for the contest of the validity of wills.

There was no error in the court charging the jury that a verdict should be returned by the concurrence of three-fourths or more of the jury.

The plaintiffs further claim that the trial court erred in giving defendants’ request to charge before argument. The request charged is as follows:

“If you find that the paper writing purporting to be the last will and testament of Elizabeth Slemmons was signed by her in the presence, of the two witnesses, S. M. Farnesworth and Cath-arine A. Case, and that said witnesses signed the same in the presence of the testatrix, then I charge you that as to whether the testatrix signed her name before or after the witnesses had signed their names thereto is wholly immaterial.”

There was testimony tending to prove that S. M. Farnes-worth, one of the witnesses to the will, signed his name to the will as a witness before Miss Slemmons, the testatrix, had signed the will; that she signed immediately after this witness; that the will was then signed by the other witness, all one continuous and uninterrupted transaction, and in the presence of each other.

The provision of the code, Sec. 10505, regarding the execution of wills is as follows:

“Except nuncupative wills, every last will and testament must be in writing, but may be handwritten or typewritten. Such will must be signed at the end by the party making it, or by some other person in his presence and by his express direction, and be attested and subscribed in the presence of such party, by two or more competent witnesses, who saw the testator subscribe or heard him acknowledge it. ’ ’

In order to make a valid will the code requirements must be followed, and one of the essentials to the execution of a will is that it must be attested and subscribed in the presence of the testator by two witnesses, who either saw him subscribe or h.eard him acknowledge signing the will. The question then arises whether, if the witness to the will signed before the testator had signed, is it an attesting and subscribing as required by this statute ?

This question first came before the English courts in a con-, struetion of Act 1, Yict. C. 26, See. 9. There it was held that it was necessary to the validity of the will that the testator sign the will before the witnesses signed. The provision of the English act was similar to the act of this state quoted above.

Some of the courts of this country have followed the decisions of the English courts, notably the New York Court of Appeals in Jackson v. Jackson, 39 N. Y. 153, and followed by that court in later decisions.

The Supreme Court of Massachusetts has also given a similar construction to the statute of that state in Barnes v. Chase, 208 Mass. 490 [94 N. E. 694],

The courts of Georgia have placed a like construction upon their statute. Lane v. Lane, 125 Ga. 386 [54 S. E. 90].

But the courts of many of the other states have'placed a contrary construction upon the statutes of their respective states providing for the execution of a will.

"The view that seems to have the weight of modern authority is that 'in acts substantially contemporaneous it can not be said that there is any substantial priority, ’ and that where the execution is completed at one transaction it can not be held that Ihe will is rendered invalid because one or more of the witnesses signed before the testator. ’ ’ Page, Wills, Sec. 222.

The principle announced by Page has the support of the following eases: O’Brien v. Gallagher, 25 Conn. 229; Gibson v. Nelson, 181 Ill. 122 [52 N. E. 901]; Sechrest v. Edwards, 61 Ky. 163; Lacey v. Dobbs, 61 N. J. Eq. 575 [47 Atl. 481]; Cutler v. Cutler, 130 N. C. 1 [40 S. E. 689; 57 L. R. A. 209; 89 Am. St. 854]; Miller v. McNeill, 35 Pa. St. 217 [78 Am. Dec. 333] Kaufman v. Caughman, 49 S. C. 159 [27 S. E. 16; 61 Am. St. 808]; Silva’s Estate, In re, 169 Cal. 116 [145 Pac. 1015]; Horn’s Estate v. Bartow, 161 Mich. 20 [125 N. W. 696]; Shapter’s Estate, In re, 35 Col. 575 [85 Pac. 688].

The object of requiring the execution of wills in order to render them valid to conform to a statutory formula, is to prevent fraud upon heirs at law in the distribution of the estate of their ancestors, and courts in the construction of these provisions should have this object in mind, and should not place such a liberal construction, in order to sustain the execution, that the object of the statute would be destroyed. 'But when all the provisions of the statute are followed, the order in which the signatures of the testator and the witnesses are affixed to the will is not essential.

The Supreme Court of Kentucky in Sechrest v. Edwards, supra, says:

“Nor can it be material whether the names of the attesting witnesses or that of the testator should have been first subscribed, if, as in this ease, the witnesses had been present when the testa-1:or * * * wrote his name, and, being called for that purpose, actually witnessed * * * the fact. ’ ’

The statute does not expressly provide the order in which the signatures of the testator and the witnesses shall be subscribed to the will; all that it requires is that the will shall be attested and subscribed in the presence of the testator. If the persons who are present are told by the testator that he desires to execute his will by signing the paper writing there present, and that he desires these persons to sign the paper as witnesses thereto, the order of signing is not essential, if the signatures of the testator and that of the witnesses are subscribed at one continuous transaction.

The chances of fraud or imposition in the execution of the will are not increased by reason of one of the witnesses signing before the testator, where the testator signs immediately thereafter, and in the presence of the witness, if the will is otherwise-regularly executed. •

Harsh and unnecessarily technical rules of construction should not be required in the execution of a will which may defeat the right to dispose of property by will, where the statute does not expressly imply such a requirement, and the formalities of the statute are substantially followed.

Miss Slemmons had a right to dispose of her property by will, and she should not be deprived of that right through some defect in the execution of her will, unless it is material.

Mr. Farnesworth, one of the witnesses to the will, is the only one who testified that he signed the will before the testatrix. He says he was called into the room where Miss Slemmons was; that after some talk with her regarding her desire to execute the will, and that she desired he be one of the witnesses, he took the paper and signed it, handed it to Miss Slemmons, and she signed and handed it to the other witness, and it was signed by that witness.

Other errors were urged by plaintiffs, but we do not find that any of them are well taken, and they are not of enough importance to merit further comment here. The judgment is affirmed.

Spence and Metcalfe, JJ., concur.


author: HENRY, J.

text:
    WILLS.
    [Cuyahoga (8th) Circuit Court,
    May 18, 1908.]
    Henry, Winch and Marvin, JJ.
    Cora Blee Tracy et al. v. Miranda Blee et al.
    Devise <5f Real Estate with Power of Disposal Vests Fee.
    A will devising real estate to one person generally and with absolute power of disposal, invests that person with a fee simple estate, notwithstanding the fact that the will further provides that whatever may be left of such real estate upon the death of such devisee shall pass to someone else.
    Error.
    Carpenter, Young & Stocker, for plaintiffs in error.
    Squire, Sanders & Dempsey, for defendants in error.
   HENRY, J.

The sole question in this case is whether or not the will of Robert Blee disposed of his real estate to his brother, Hugh Blee, Jr., in fee, or for life only, witb remainder over. The material part of the will is as follows:

“To my brother, Hugh Blee, Jr., if he survive me, I give and devise all the rest and residue of my property of every kind and description and wherever situate. * * * In the event of said Hugh Blee, Jr., dying without issue and without will, and there be remaining some portion of the property here .devised to him, than I direct that of that the remainder be divided equally between my sisters, Mary Miranda and Sarah, and my nieces, Lizzie. Mary and Florence,'to each or their heirs one-fifth, share and share alike. This is not intended to limit or qualify in any way Hugh Blee’s power to use and absolutely dispose of as he may see fit, any or all the'property here given to him.”

This court in Steuer v. Steuer, 28 O. C. C. 145 (8 N. S. 71), is committed to the proposition that a will of this sort, devising real estate to one person generally and with absolute power of disposal, invests that person with a fee simple estate, notwithstanding that the will further provides that whatever may be left of such real estate on the death of such devisee shall pass to someone else.

We gaye careful attention to the extremely interesting arguments of counsel on both sides of this case, but we do not think it profitable to enter into an extended re-examination of the question involved.

Plaintiff may take a decree.

Winch and Marvin, JJ., concur.


text:
    PARTNERSHIPS — STATUTES.
    [Cuyahoga (8th) Circuit Court,
    May 18, 1908.]
    Henry, Winch and Marvin, JJ.
    John B. Coffinberry v. H. W. Blakeslee.
    1. Presumption that interpretation of Similar Statute of Another State same as in Ohio.
    Where it is shown that the statutes of a state in which a contract was made are the same as the statutes of Ohio, it will he presumed, in the absence of any evidence on the subject, that the decisions under those statutes are the same as the decisions in Ohio.

      2. A Partnership Agreement to Deal in Oil and Gas Leases Must Be in . Writing.
    In. Ohio a partnership agreement made for the purpose of operating in oil and gas leases is -within the statute of frauds and must be in writing.
    3. Statute of Frauds Complied With if all the Terms of an Agreement Appear in Signed Correspondence.
    Several writings, though made at different times in the form of letters, may be construed together, for the purpose of ascertaining the terms of a contract required, by the statute of frauds, to be in writing.
    Appeal.

      Whitney, Johnson, McCasUn <& Cannon, for plaintiff.

      W. C. Ong, for defendant.
   HENRY, J.

In this appeal the plaintiff seeks an accounting from defendant of profits of an alleged partnership formed with him about January 10, 1901, to deal in oil leases in and about Beaumont, Texas. Some agreement was admittedly entered into between the parties at Forth Worth, Texas, about that time. The plaintiff, Coffinberry,-was sojourning in that city in the employ, as right-of-way agent, of a Cleveland traction syndicate, who were then building an electric road in Texas. The defendant. Blakeslee, a lawyer and oil operator, was in Texas on a hunting trip, and a day or two after the great oil strike in Beaumont they met at a hotel or boarding house in Fort Worth. They had had previous dealings together. Plaintiff then and there called to defendant’s attention a newspaper report of the Beaumont oil strike. After talking the matter over, defendant started promptly for Beaumont, pursuant to an agreement which plaintiff claims provided that defendant was to give his whole time and attention to the business, receive a salary of $5 a day and expenses, and furnish three-fourths of the funds necessary for acquiring oil leases and for carrying on the business of the partnership; plaintiff on his part to furnish the other one-fourth of the funds of salary and expenses, and the profits and losses of the partnership to be divided between them in the ration of three-fourths to defendant and one-fourth to plaintiff.

Defendant’s version of the understanding is that because of certain inducements held out to him by plaintiff in respect to a division of expected commissions from a real estate deal connected with, the traction enterprise, he offered to let plaintiff in with him to the extent of a quarter interest in such leases as he might thereafter acquire in Beaumont, and think proper to share with plaintiff.

The plaintiff insists that the partnership arrangement in regard to dealing in oil leases, had no connection whatever with the traction real estate deal. The latter, he claims, was as follows :

Part of a certain property known as the Handley farm was wanted by the traction company for park and other purposes in ease certain pending legislation affecting that feature of their business should become a law. In order to get what the traction company required, it was necessary to take the whole farm, and plaintiff expected that the residue, which would be rendered very ■valuable in case the traction company used the part it required in the manner contemplated, might be so handled as to realize to him a commission of $800 or $1,000 and possibly other profits in addition thereto, through the organization of a real estate company and the sale of lots.

In talking the matter over in Fort "Worth w-ith defendant, plaintiff sought and obtained the latter’s permission to use his name as that of the real purchaser, whom plaintiff represented in his negotiations for the acquisition of the Handley farm. This ruse was to be resorted to, to prevent the seller from raising his price, as it was expected he would do if he were informed that the traction company was the purchaser. The plaintiff actually took an option in defendant’s name, but through failure of the pending legislation the traction company permitted it to lapse. Later on, however, it was renewed in plaintiff’s name and the property taken over'by the traction company. Plaintiff was at that time working on a salary for the traction company, and as now appears, he never realized his expectations, of profit from the Handley deal. So at least we find from all the evidence.

Defendant, within a month or two after arriving -at Beaumont, acquired a number of valuable oil leases out of which over $25,000 profit was derived. He kept up, meanwhile, a constant correspondence with plaintiff, the whole of which, taken together, is very voluminous. It is written in a very friendly, intimate and colloquial style, intended evidently to be humorous. It became evident, however, that as soon as defendant’s large success was assured, he did not wish to divide with plaintiff on the basis then and now claimed by the latter. Much is said about the fading prospects of profit from the Handley deal, and defendant intimates more and more pointedly that he intends that plaintiff’s participation in the profits of the oil deals shall depend very largely on his payment of at least $400 to defendant, being one-half of the expected profit from the Handley deal. Finally on April 9th, defendant plainly exercises his undoubted right of terminating the partnership unequivocally. In the meanwhile, however, on January 13, 1901, at the very inception of the enterprise, defendant had written to plaintiff, expressly recognizing the existence of some agreement between them respecting his dealing in oil leases, for he speaks of enlarging their enterprise so as to include dealing in vacant property, and says “Of course you would be in that same as oil leases, ” etc.

On January 17, 1901, defendant writes to plaintiff saying: “Send me a draft at once for $625. I will send you a check at once in return for $500 and a receipt for $125 on all of your one-quarter costs and expenses.”

On February 9, 1901, defendant writes “We couldn’t hire a man to do what I did yesterday and today for $50 and I get $10 for it, ’ ’ referring plainly to his per diem of $5.

On February 19, 1901, defendant wrote a letter clearly recognizing the terms of the original agreement as claimed by plaintiff, except the Handley feature, which he still insists was a part of the agreement, but which in the aspect it had then assumed, he accepts. In his usual whimsical vein the defendant writes of an alleged meeting between himself and the field man, who was none other than himself, as the entire correspondence clearly discloses. He says, “We held a meeting at my office late last night and the field man said we were probably being worked some on that commission, but as the chances are so strong that there won’t be any commission to divide, that he would move to have the report accepted and spread upon the minutes of the meeting, also on the boobs of the company, and that onr share be accepted as offered, viz: $400 ont of the $886 and that we declare the original compact as to your having one-fourth of the profits, if any, and stand one-fourth of the losses on all deals, commissions, etc., made by me in this field, and that we furnish you as soon as convenient a receipt for the $125 you have paid in and a statement of the terms on which you are in, so that nothing can be construed to tie up, hamper or hinder the free and full control of ■ all business by our most worthy and competent field man, whose name modesty forbids me to mention.”

As a matter of fact, plaintiff’s letters to defendant, to which this was the reply, contained no outright offer to pay defendant $400 at all events, but only an offer to pay $400 out of the $886, commissions which plaintiff expected to realize out of the Handley deal.

On February 11, 1901, plaintiff had written defendant:

“X have paid $100 down on the Handley farm and am having abstract made out and if bill becomes a law will close at once. Will take deed in my own name as trustee. The company w.'U want about 200 acres of it. Will have to let that go at cost, expect to get $2 per acre commission on balance of 440 acres. ’ ’

On February 16, 1901, plaintiff wrote:

“X had concluded some days since to allow our field man $400 out of the $886 if he made an early report and made it full.”

This was the proposition then which the defendant ae-cepted and in connection with which, as thus understood, he reaffirmed the original compact, which his letter shows that now, at least, both parties in all respects understood alike.

It would be profitless to review the entire correspondence in detail here. Suffice it to say that it does not in any particular disagree with the statement thus made of the business relations of the parties.

The defendant’s explanation of this letter in his oral testimony, on cross-examination, is as follows:

“ Q. We held a meeting at my office late last night, and the F. M. said we were probably being worked some on that commission, but as the chances are so strong that there won’t be any commission to divide that he would move to have the report accepted and spread upon the minutes of the meeting, also the boobs of the company and that our share be accepted as offered, namely, $400 out of $886. What company was that ? A. There-was no one there but myself, I was there as my field man and considered some letter that he had probably written, in' which ho might have offered the $400.
“Q. At that time you had gotten Mr. Coffinberry’s letter of February 16th which seemed to have satisfied you in regard to the street railroad matter, hadn’t you? A. I had gotten that letter, and I considered it in a favorable light.
‘ ‘ Q. So you go on and say that at that meeting this further took place. ‘And we declare the original compact as to your having one-fourth of the profits or any, and stand one-fourth of the looses of all tbo deals, commissions, etc., made by me in the, field.’ Was that the original compact that was made? A. No,,sir.
“Q. Why didn’t you say so in this letter then? A. I meant by that, that according to the original compact of one-fourth and expenses — I meant if he would give me that $400 it would be satisfactory and I’d declare him in on the whole thing according to the original compact that he was in on the ground ñoor. I was willing to extend it to all of them according to the compact we made as to what he was to have.
“Q. So you intended in this letter of the 19th to advise Mr. Coffinberry that he was in with you for a fourth of all the deals you had made? A. I intended to say I’d let him in, but later I said if he paid over that commission — in the same letter. 1 wanted him to pay something on what he owed me. I was trying to get him worked up to that. ’ ’

This explanation does not appeal to us as at all satisfactory.. The letter, jocular though it is in' its style, is clear enough to show with what had previously been written by the parties to one another, that however doubtful the realization of any commission whatever from the Handley deal might be, defendant was content to accept $400 out of the $886 which plaintiff still hoped to realize therefrom, and with that solution of their differences the original agreement was re-affirmed, namely, that plaintiff should have one-fourth of the profits if any, and stand cne-fourth of the losses on all deals, commissions, etc., made by defendant in the Beaumont oil field, the receipt of $125 to apply on plaintiff’s share of defendant’s salary of $5 per diem and other expenses being expressly acknowledged. This re-statement of the understanding of the parties, to our minds, absolutely excludes any such limitation thereon as defendant now claims, but makes their partnership agreement applicable to all of the defendant’s dealings in oil leases in the oil field in Beaumont.

The testimony produced for the first time in this court when taken in connection with the facts as disclosed by the letters of the parties, does not suffice to discredit the plaintiff’s claims in ■this behalf.

The deposition of the witness Price can not be allowed to contradict the statements and implications of defendant’s letter of February 19, wherein he wrote, in addition to what has already been quoted:

“You remember Price mentioned 100 acres south of the railroad at Amelia. Our astute field man made a note of the Dame of the owner, namely, W. J. Collier, and said to us that he would have that piece of land, and the way to get it was by a bluff that he would not test the land out there unless they put in enough worth while. Those tactic^ worked, nothing else would. ’ ’

The plaintiff’s testimony in reference to meeting Mr. Price and the conversation that ensued is thus entitled to credit in preference to the testimony of the defendant and Price himself denying the same and giving a,wholly different version of plaintiff’s statements. So also with respect to the deposition of one of the members of the brokerage firm of Ross and Newland to the effect that they never had any difficulty with Mr. Blakeslee and that Mr. Coffinberry never helped to straighten out any such difficulty. The documents in the ease strongly indicate the contrary:

“Beaumont, Texas, April 25, 1901.
Mr. D. S. Boss and Mr. Newland:
“If you will bring me a customer that will take my 99-acre lease and pay me $15,000 in cash net, and bring said customer at five o’clock April 26,1901,1 will assign him all of my right, title and interest in the same for the said $15,000 net, with no commission to you., I will give the purchaser until noon Saturday 1o approve abstract if 10 per cent of purchase money is paid on or before five o’clock Friday evening, April 26th, to bind bargain.
‘ ‘ If you- can not find such purchaser by the time stated, then this deal is off and everything is even and settled between us and you have no claim for commission or other claim against me..
“ (Signed) H. W. Blakeslee,
“B. S. Boss,
“W. V. Newland.
“4-26-1901.
“Beeeived of H. W. Blakeslee, $2,500 in full of our commission on the deal for the above property this day made, and in settlement of all claims on him.
“D. S. Boss,
“W. V. Newland
“Witness to signature,
“J. B. Coffinberry.”

On the whole evidence we reach precisely the same conclusion on the issues of fact as did the court below, namely, that the plaintiff is entitled to the accounting that he asks and to a decree awarding him one-fourth of the $25,000 and upwards of profits realized by defendant.

The only question of law in the case concerns the application of the statute of frauds to partnership agreements for the purpose of dealing in oil leases, or other interests in land. It is. perhaps true in Ohio, contrary to the weight of authority in other jurisdictions, that a partnership agreement for dealing in oil leases or other interests in land, must, under our statute of frauds, be in writing. The Texas statute is conceded to be like our own, and in the absence of evidence as to its judicial eon-■struction in that state, we must presume that it would be construed in accordance with Ohio decisions. Watson v. Erb, 33 Ohio St. 35, seems to be in point, and in the opinion of the court by Johnson, C. J., it is said at pages 43-49 that:

"A parol agreement that another shall be interested in the purchase of lands or the declaration that he buys for another, where no money is advanced, comes directly under the statute of frauds.”

But it is also held in Ohio that:

“A contract falling within the statute of frauds may be enforced, if plainly made out in all its terms, from any writing of the party, or even from his correspondence,” although “it must .all be collected from the writings, verbal testimony not being admissible to supply any -defects or omissions in the written evidence.” Williamson v. Hall, 1 Ohio St. 190; McGoveney v. State, 20 Ohio 93.

And in Thayer v. Luce, 22 Ohio St. 62, the first two paragraphs of the syllabus are as follows:

“1. Several writings, though made at different times, may be construed together, for the purpose of ascertaining the terms of a contract required, by the statute -of frauds, to be in writing and signed by the party to be charged therewith.
“2. If some only of such writings be so signed, reference must be specifically made therein to those which are not so signed but if each of the writings be so signed, such reference to the •others need not be made, if, by inspection and comparison it appear that they severally relate to or form part of the same transaction. ’ ’

In the same ease it was said by Mellvaine, J., at page 75:

“It is well settled that a writing, relied upon to take a case ■out of the operation of the statute, may be executed after the verbal agreement is complete and at any time before action brought. ’ ’

The quotation I have made from the correspondence of the parties in the case before us, clearly shows that an agreement was ■entered into .between them, and that the terms thereof were substantially as claimed by the plaintiff.. The evidence shows that the plaintiff never received any commission or profits out of the Handley deal, so that we need not consider whether or not a division of such' profits was a part of the partnership agreement with respect to oil leases. If no profits were made, it; is evidenced that defendant acquiesced in plaintiff’s statement, clearly made in the course of the correspondence, that none were to be divided.

The alleged want of equity in plaintiff’s claim, in that he contributed but $125 towards the expense of defendant’s very large business operations at Beaumont, is of no moment, in view of the defendant’s admission, in his testimony, that it was practically one-quarter of the whole amount which was required to be advanced before the business became self-sustaining.

The evidence does not support the claim that this.contribution of $125 was,intended by plaintiff, or received by defendant, as applying only to a part of defendant’s dealings in oil leases, and even if the memorandum in writing sufficient to satisfy the statute of frauds could not be gathered from the correspondence of the parties, this contribution of $125 towards the expenses of the enterprise would entitle plaintiff to relief in equity.

On the whole case we find the equities with the plaintiff and he may take a decree as in the court below.


author: MARVIN, J.

text:
    BILLS AND NOTES — INTEREST AND USURY.
    [Cuyahoga (8th) Circuit,
    May 27, 1912.]
    Marvin, Winch and Niman, JJ.
    F. E. Wettstein v. Bankers National Bank.
    ' 1. Verba! Agreement That Note May Be Discharged Otherwise Than' by Payment not Enforcible.
    A verbal agreement made contemporaneously with the execution of a promissory note that it may be discharged in some other way than by the payment of money, while it remains executory, is no defense to an action on the note, but when fully executed it operates as payment,,or accord and satisfaction.
    , 2. Judgment for Ten Per Cent invalid for Usury.
    It is error to enter judgment on a promissory note for. 10 per cent interest, though the note was executed and delivered in another state, unless there is proper evidence before the court that such interest is allowable under the laws of such other state.
    [Syllabus by the court.]
    Error.

      Lang, Cassidy & Copeland, for plaintiff in error.

      L. J. Grossman and I. N. Loeser; for defendant in error.
   MARVIN, J.

The parties to this action stand in the reverse order to that, in which they stood in the court below. The terms “plaintiff” and “defendant” however, will be used in this opinion as applied to the parties in the original action.

The plaintiff is a corporation organized under the banking laws of the United States of America, and located in the city of Ardmore, Oklahoma. Suit was brought by this plaintiff upon a promissory note executed by the defendant to one C. W. Baum-bach, or tot his order, at Ardmore, Oklahoma, on August 1, 1907, by which the defendant undertook to pay to the order of C. W. Baumbach on October 15, 1907, the sum of $5,000 with interest at the rate of 10 per cent per annum from maturity until paid, which said note was indorsed by said Baumbach and delivered by him to the plaintiff.

The petition is in the short form, and there is annexed to it and made a part of it a copy of the note npon whieb the suit was brought, together with endorsement thereon of C. W. Baumbach. The defendant filed an amended answer to the petition, in which he admitted the execution of the note, but says that he ought not to be required to pay because, he says, that at or-prior to the date of the note here sued on, C. W. Baumbach executed and delivered to the defendant his note for $5,000 due October 15, 1907, with interest at the rate of 6 per cent per annum; that at or about the time of the execution of the note here sued upon, it was agreed between the defendant and said Baumbach that in ease said note so made to defendant should not be paid at its maturity, then defendant should not be liable upon the said note, so made by h'm either to Baumbach or to any transferee or holder thereof, but would be from thenceforth discharged from his obligation thereon; and it was further agreed that in case defendant failed to pay the note here sued upon, that Baumbach should not be liable upon his. note to defendant or to any transferee or holder thereof, but would be from thenceforth discharged from his liability thereon. Defendant further says that the said Baumbach did not pay the said note at its maturity, and that the same is still unpaid. Defendant further says that at the time plaintiff acquired said note drawn by defendant to the order of C. "W. Baumbach, and prior thereto, plaintiff was fully apprised of the agreement between the defendant and C. W. Baumbach as above set forth, and that plaintiff took said note with full knowledge of all the conditions and limitations thereto attached by reason of the said agreement.

To this answer the plaintiff filed a reply, which consisted simply of a denial of the affirmative matter set up in the answer.

On this state of the pleadings, the court, on motion of the plaintiff, gave judgment in its favor for the entire amount called for by the note, including 10 per cent interest from its maturity. It is to reverse this judgment that the present proceeding is prosecuted.

Of course, if the answer of the defendant makes a good defense, then there was error on the part of the court in granting the motion. "We are of opinion that the answer did not make a good defense. We have examined the briefs of counsel both for the plaintiff and the defendant, and our decision is based upon a consideration of the points made by both, including the provision made in Sec. 8224 G-. C. which provides: “A negotiable instrument is discharged by another act which will discharge a simple contract for the payment of money. ’ ’

The authorities with which counsel for both parties in this case are familiar, and which are cited and' quoted from in their \ briefs, fully establish the position taken by the plaintiff, in error, “that a verbal agreement made contemporaneously with the execution of a promissory note that it may be discharged in some other way than by the payment of money, while it remains ex-ecutory, is no defense to an action on the note, but when fully executed it operates as payment or accord and satisfaction.”

This is the way in which the rule is stated in the case of Patrick v. Petty, 83 Ala. 420, and is borne out by a large number of authorities, the authorities all being to the effect that no such contemporaneous agreement, while it remains executory, will constitute, a defense to the note; and we have, therefore, the question presented of whether the giving of the contemporaneous note by the payee of the note sued upon in this action, with the agreement that- if ’that note is not paid, the note sued upon was not to be paid, and that from that time on nothing was done by either party toward the payment of either note, constitutes an executed contract by which the note in suit should be discharged.

Certainly the giving of this contemporaneous note did not discharge the maker of the note in suit from the payment of such note. But it is urged that the non-payment of the note not here in suit itself operates to make of that note an executed contract, that is to say, the contract evidenced by that note, it is said, is executed because nothing was ever done about it. This contention is not, ás we view it, sound. To make an executed contract which should operate as a discharge of the note in suit, something affirmative was required to be done after the execution of the notes. No affirmative thing ever was done; the result is that there was no executed contract for the discharge of this note, and the answer constituted no defense to the note sued upon.

But even though there had been no answer, it is said the court erred in giving judgment for the full amount called for by the terms of the note, to-wit, interest at the rate of 10 per cent.

We think this contention is sound. It is settled law and known to every lawyer, that in the absence of evidence to the contrary, the presumption is that the law of the place where the contract is executed is the same as the law of the place where the enforcement is sought. In this case there is no evidence on the subject. If this contract had been made in Ohio, it would on its face show a contract for the payment of usurious interest, and as said by our Supreme Court in the case of Goode v. Sutton, 29 Ohio St. 587, “If the petition on its face shows that the action is brought upon an instrument for the payment of money, by which the maker has agreed to pay usurious interest at a stipulated rate, and the interest had been paid at the usurious rate stipulated, the court is required, in the absence of an answer, of its own, motion to see that judgment is not rendered for more than the balance found to be due after deducting the excessive interest so paid and applying it as payment upon the principal, or, if the usurious interest has not been paid, then for the amount found due by computing interest at the legal rate. ’ ’

Keeping in mind, then, that the presumption is that the law of Oklahoma on the subject of interest is, the same as the law of Ohio, the note on its face shows an agreement to pay usurious interest, and treating this as it shopld be treated, with this presumption of the law, it is clear that the court erred in allowing interest at a higher rate than 6 per cent, and unless the excessive interest is remitted by the plaintiff, the judgment will be reversed for error. If, however, such remittitur is made, the judgment for the amount of the note computed 'at 6 per cent will be affirmed.

Winch and Marvin, JJ., concur.


text:
    NEGLIGENCE.
    [Cuyahoga (8th) Circuit,
    December 7, 1908.]
    Henry, Marvin and Winch, JJ.
    Isaac Leisy Brew. Co. v. Alphons Kapl.
    Liability for Leaving Heavy Piece of Furniture in Street Which' Overturns on Child.
    One who leaves a heavy article in the public streets in unstable equilibrium and in such manner as would be likely to attract children, is liable in damages to a child who has been attracted to it and is injured by having it fall upon him while playing' about it.

      Solders, Thayer & Mansfield, for plaintiff in error.

      Daioley & Meals, for defendant in error.
   HENRY, J.

In the action below the defendant in error recovered a verdict and- judgment for injuries sustained by him from the overthrow of a bar fixture which had been temporarily placed during removal, in the space, between sidewalk and curb in the-street, in front of the plaintiff’s premises. It was left in unstable equilibrium, and the defendant in error, a child of six years, intermeddled with it so that it fell over on him.

Because this was a public street where the child had a right to be and whdre it was to be expected that small children would exercise their childish instincts, a majority of the court are unwilling to hold that the doctrine of Wheeling & L. E. Ry. v. Harvey, 77 Ohio St. 235 [83 N. E. 66; 19 L. R. A.(N. S.)1136; 122 Am. St. 503; 11 Ann. Cas. 981], as applicable to private premises, rules in this case; especially as that decision distinguishes instead of in terms reversing, Harriman v. Railway, 45 Ohio St. 11 [12 N. E. 451; 4 Am. St. 507].

Judgment affirmed.

Marvin, J., concurs.

Winch, J., dissents.


text:
    CHARGE TO JURY — NEGLIGENCE.
    [Cuyahoga (8th) Circuit,
    November 30, 1908.]
    Henry, Winch and Marvin, JJ.
    Interstate Steamship Co. v. Joseph Chanfordi.
    1, Opportunity to Know Not Equivalent to Knowledge in Fixing Liability for Negligence.
    In an action for injuries caused by defendants’ negligence in which it is alleged that defendants’ neglect occurred after they had knowledge of plaintiff’s position, it is error to charge that defendants are liable if they knew or had opportunity to know of plaintiff’s presence and proximity.
    S. Charging Fact in Issue Proved Unless Admitted Improper.
    It is error to charge the jury that any given fact in issue has been proved, even though the oral testimony in support of that fact is wholly uncontradicted, unless it amounts to an admission by the opposite party.

      Ooulder, Holding & Masten, for plaintiff in error.

      J. F. Fitzgerald and George B. Marty, for defendant in error.
   HENRY, J.

The parties to this proceeding in error .stand in the relation opposite to that in which they stood in the court of common pleas. There, the plaintiff, Chanfordi, recovered a verdict and judgment for injuries sustainéd by him through the negligence of the defendant, while he was in the employ of the Pittsburg & Lake Erie Dock Company, at Fairport Harbor, Ohio, May 20, 1906.

The plaintiff’s petition alleges that while he was engaged in making repairs upon a certain ore loading machine known as a whirley, and was standing on the dock between said machine and the steamer, B. F. Jones, owned by the plaintiff in error, the agents and servants of the defendant in charge of said steamship “with full knowledge of the presence and position of the plaintiff, undertook to move said steamer along the dock,” by making fast a cable to a cleat on the dock and winding the same on a drum operated by a deck engine on said steamship. He further says that they so carelessly and negligently handled said steamship, her deck engine and cables, that a cable leading from the steamer on the port or left hand side forward, to a cleat on the dock below, where plaintiff was at work, suddenly and without any warning whipped or flew up and struck plaintiff violently on the body and head, painfully and permanently injuring him, without any fault or negligence on his part.

The answer admits, among other things, “that on the day aforesaid, as it said steamer was being moved along said dock, a person to defendant unknown was between one of said unloading machines and said steamer, and was struck by one of said cables.” The answer further denies any negligence on its part, but alleges that said injury was caused wholly by the negligence of the person injured.

Upon the trial, and as appears from the'bill of exceptions, “in the statement of the case, the defendant’s counsel said that the defendant’s agents and servants handled the line in the usual and ordinary way ” and that “the plaintiff through his own negligence w.as struck by the line whipping up.”

The only evidence offered at the trial was that produced by the defendant in error, and it tends to show that the plaintiff below with four other men, were engaged on this occasion in removing part of the steel framework of the whirley on the s’de of the machine which was nearest the face of the dock. The work consisted in cutting off and driving out the rivets which held a part of the framework in place, and taking the same out and replacing it with a new part, marking holes in the new one and then having it drilled to fit into the place of the old one. "When the work had progressed so far that the rivets had been cut off and driven out and they were about to remove the old frame, the steamer B. F. Jones which had been lying some distance below or south of the machine, was moved down stream aloJig the dock so that that part of her which was just aft of the forward house was abreast of the whirley, which was being repaired. In pulling on the line to haul the vessel astern, in the manner alleged in the petition, it was obviously dangerous for the men to work in close proximity to the cable, and recognizing this danger, they stood aside for some minutes. Thereupon, apparently supposing (whether with or without reason is a controverted point), that they could return in safety, they went back and took out the old beam, carried it to a point south of the whirley and were again returning to clean the grease and dirt off the castings at each corner of the machine so that the new beam could be placed in position and marked, when the cable which had been taut, suddenly slackened and then whipped up, causing the injury to plaintiff.

A motion to direct a verdict for the defendant below having been overruled and no further evidence being offered, the trial judge charged the jury, among other things that:

“If you find that the plaintiff was engaged upon repairing a machine on the dock in close proximity to the defendant’s steamer and in a position where he would be likely to rece've injuries, if the cable or hawsers of said steamer were suddenly relieved of tension or slackened, and then quickly drawn taut, and the defendant’s agents and servants .in charge of said steamer had knowledge or had opportunity to know of the 'plaintiff’s presence and proximity to said line, then it was the duty of the defendant to exercise such skill, care and precaution to prevent injury to the plaintiff as would be exercised by an ordinary prudent person under like or similar circumstances, and the defendant had not the right to handle said line in such manner as might suit its convenience regardless of the presence of the plaintiff.”

This proposition was charged in pursuance of plaintiff’s request number one, and defendant excepted thereto.

"We think the exception is well taken in respect of the phrase “or had opportunity to know” of the plaintiff’s presence or proximity to said line. This phrase is objectionable for two reasons: First, because no issue of constructive knowledge is presented by the pleadings, the allegation of the petition being, as already stated, that the defendant had “full knowledge of the presence and position of plaintiff.” Nor does the evidence so clearly disclose constructive knowledge on the part of the defendant at the moment of the injury to plaintiff as to warrant its being imported into the case by the charge of the court, 480 upon the theory of an immaterial variance, within the meaning of Sec. J5295 R. S. (Sec. 11557 G. C.)

Secondly, even if the issue of constructive knowledge were presented by the pleadings, or clearly made in the evidence, it is not properly stated in the charge. “Opportunity to. know” is not necessarily equivalent, under the circumstances of this case, to knowledge which the defendant, by the exercise of ordinary care, would have had. On the contrary, the jury might well have inferred from the language of the charge, as given, that the defendant, though without actual knowledge, would be chargeable with constructive knowledge, if it could have found out by the exercise of extraordinary care and diligence, though it would not have known by the exercise of merely ordinary care, that plaintiff was in a situation .of danger from the handling of the line.

Error is further alleged of the charge regarding matters of fact as to which the court said, that there was no controversy in the evidence.

This statement of the court was literally true, for the defendant produced no evidence whatever, and there was no inconsistency in these respects in the testimony of plaintiff’s witnesses ; but the case is otherwise when the court charged upon the subject of damages:

‘ ‘ If you find for the plaintiff in the issue of fact joined here under the court’s instructions, you will assess to him such damages as you, in your judgment, believe him to be entitled to under the evidence in this case for his injuries, loss of Nis teeth, there being no controversy in the evidence that as a result of his being struck by the cable he lost threg. teeth, and injury to his head, neck — whatever you find to be'his injuries from the evidence, give to him such a sum as would fairly and reasonably compensate him for the injury received and the pain he suffered, I sav to you that there is nothing to be. allowed in the way of compensation for any permanent injury in this case other than that of the loss of the teeth, by the pleading filed by the plaintiff in this case.”

This was practically a binding instruction upon the jury that in case they found for the plaintiff, the loss of his teeth was an injury, a permanent injury, and as such, an element of damage recoverable by him.

Under the law in this state, the jury is the sole judge of the 'credibility of witnesses, 'and it is not proper for the eourt to instruct that any given fact in issue has been proved, even though the oral testimony in support of that fact is wholly un-contradicted, unless it amounts to an admission by the opposite party. No such admission appears in the record in this behalf, and the charge in question was clearly erroneous. '

Upon the whole evidence the plaintiff in error urges that there is no negligence disclosed on the part of the defendant and that there is negligence on the plaintiff’s part clearly shown by the weight of the evidence. We are not prepared to endorse either of these contentions, and we rest our reversal of the judgment below upon the two errors in the charge already pointed out.

Winch and Marvin, JJ., concur.


text:
    MUNICIPAL CORPORATIONS — OFFICE AND OFFICERS.
    [Cuyahoga (8th) Circuit,
    November 19, 1908.]
    Henry and Marvin, JJ.
    Winch, J., not sitting.
    State ex rel. Fred Weber v. Frank Hathaway.
    1. Residence Required of City. Councilmen is That of Elector.
    The residence which is required by Sec. 1536-613 R. S. (Sec. 4207 G. C.),i to qualify one to hold the office of city councilman, is the residence which iS required to qualify one as an elector.
    2. Office of Councilman Removing from State Without Intent to Stay or Return Not Vacant.
    Where a councilman removes outside the state to accept employment, without any fixed intent either to stay or return, the office which he has held does not thereby become vacant.

      Green &• Zmunt, for plaintiff.

      Deutseh, How.ells & Grossman, contra.
   HENRY, J.

The ouster of a village councilman from his office is sought-by this proceeding, the turning point of which is whether a vacancy therein was caused by the removal from the village or by the subsequent resignation of the prior incumbent. In the' former case the relator, who is the mayor’s appointee, is entitled to the office. In the latter ease the defendant, who is incumbent under the council’s appointment is entitled to it.

We intimated our possible conclusion at the close of the hearing this morning, but we took the case under advisement for the sole purpose of confirming our prima facie impression, that the removal from the municipality contemplated by Sec. 1536-613 R. S. (Sec. 4207 G-. C.), had not been made by councilman Wagner in such manner as to render his office vacant.

We have examined some of the authorities, and have paused to look again over the brief of counsel, or citation of authorities, handed us a few moments ago, to determine whether or not there were any cases there that put a different complexion on the matter, other than the cases we had already examined; and we are prepared now to confirm the intimation we gave this, morning upon the subject.

The section so far as it bears upon the narrow question on which we had evidence this morning, is:

“Gouneilmen at large shall have resided in their respective cities, and councilmen from wards shall have resided in their respective wards, for at least one year next preceding their election. Every member of council shall be an elector of the city. Any member who shall cease to possess any of the qualifications therein required, or shall remove from his ward, if elected from his ward, or from the city, if elected from the city at large, shall forthwith forfeit his office.”

Our impression this morning was, and it is confirmed by our subsequent inquiry, that the residence which is required by this section of the statutes, for the purpose of maintaining the right to hold the office of councilman, is precisely the residence which is required to qualify a person as an elector. There is a hint, of course, of tautology in the language of the statute, “Any member who shall cease to possess any of the qualifications therein required,” that is, ceasing to be an elector of tbe city, and tbe other requirement in the same sentence, “ or shall remove from his ward, if elected from his ward, or from the city, if elected from the city at large.” That is to say, there is a hint in this language, that possibly the same thing is said twice, 1hat it was unnecessary to say anything about removal, if the requirement of being an elector were ■ observed; and the argument is suggested from that hint of tautology, that possibly the-legislature meant something different when it undertook to say that removal from the ward or city would also work a vacancy in the office. But on further investigation, it appears that this language is not open to the charge that it is tautological, on the interpretation .we place upon it. for the reason that we must consider this statute .as applying not only to villages where all the eouneilmen are elected at large and where the question of residence in a ward is of no account, but also to cities divided into wards, where residence in a given ward is one of the qualifica-. tions of a councilman. In other words, applying this section to the case of a city, it may well be true that one holding the office of councilman might continue to be an elector of the city, though removal from the ward would work a vacancy in his office as councilman.

Now what are the qualifications which an elector must possess in regard to residence? What has been the history of our legislation on this subject, as bearing upon removal? In this connection, holding as we do that the qualifications of coun-eilmen in respect of residence resemble those of electors, we refer to the case of Lehman v. McBride, 15 Ohio St. 573, where,, in the opinion of the court, at pages 600 and 601 reference ismade to the act of 1841, being an act “to preserve the purity of elections.” wherein the word “residence” is thus defined:

‘■‘First: That place shall be considered and held to be the residence of the person, in which his habitation is fixed, without any present intention of removing therefrom; and to which, whenever he is absent, he has the intention of returning. ’ ’

We note particularly the use of that word “removing,”' which is exactly the wmrd we are discussing and to which our* attention has been called. And again, in the same opinion, further quoting from the act of 1841, this language is used:

“A person shall not be considered or held to have lost his residence who shall leave his home and go into another state or county of this state for temporary purposes merely, with an intention of returning.”

Now the evidence which was adduced this morning is, of course, somewhat in conflict. It is noticeable that Mr. Wagner does not undertake to contradict (perhaps on account of lack of memory on his part) the testimony of the witness in whose home he used the telephone as to said Wagner’s language both then and after the telephone conversation was finished. Moreover it is, to say the least, left in very grave doubt whether he had ever formed any intention whatever different from that which the law imputes to him in regard to where his residence was fixed when he left the state of Ohm to go into the service of the electric railroad which operates between Baltimore and Annapolis. Employment is not presumptively permanent, nor was this by any means certainly so. All the circumstances go to show that while he entertained some doubt in his mind as to •what his future might be, still he did not form any definite intention, as we view the evidence, of renouncing this then existing residence and acquiring a new and definite residence elesewhere. If he had presented himself as an elector at the polls at the election next following his return, supposing the same conditions existed as at the time he returned to his mother’s home, can it be doubted that he would have had-the right to cast his vote; that his vote would have been received? We think not. We think that clearly under these circumstances, his vote would have been allowed, unless some different evidence had been produced to the election officers from that which has been produced to us.

We are not unmindful of all that counsel urge regarding the rule as éxpressed in Sturgeon v. Korte, 34 Ohio St. 534 and 535. We appreciate that though a person may not have any fixed determination to renounce his previous home, when he leaves the home where he has theretofore lived, yet, he may, by forming a determination in that behalf, after he leaves, accomplish the same result; that is he may change his residence definitely by a determination conceived and fixed in his mind after his departure. But there is no evidence here as to what bis state of mind became after he left Ohio, except this letter of resignation; outside of this we have absolutely no light cm thfe subject at all. In his letter he expresses some doubt as to whether or when he will return. Certainly it is not indicated that he had theretofore come to a fixed determination to renounce his former home .and to acquire a new one. We do not attach any specific importance to the use of the word “home”’ because that is the most natural word to use, in common parlance, when referring to the home of one’s parents. Taking the whole matter of the letter together, the entire language of the letter, he does not herein express any fixed determination to renounce his lawful residence and to acquire a new one. We are unable to say, amid the conflict of oral testimony, that the preponderance of evidence is in favor of the proposition that he had renounced his home, but we are, on the contrary, inclined to infer from the evidence affirmatively that he had not so done. That being our inference of fact our determination necessarily is favorable to the relator, and the judgment of this court will be that the defendant, Frank Hathaway, be and he is ousted from his office as councilman of the village of South Newburg, and the relator inducted into that office. There is no other dispute as to the validity of the relator’s election, as indicated in. the answer of the defendant.

Marvin, J., concurs.


author: WINCH, J.

text:
    BUILDINGS — EREOS—NEGLIGENCE.
    [Cuyahoga (8th) Circuit,
    June 18, 1909.]
    Winch, Henry and Marvin, JJ.
    F. C. Goodman v. Nellie G. Lynch.
    1, Unlighted Areaway in Apartment House Held Negligence.
    It Is negligence on the part of the owner of an apartment house not to maintain a light at an areaway leading down to the janitor’s door in the basement, when he invites the public to call there to inspect rooms for rent.

      2. Council Reading From Law Book Not Erroneous.
    It is not per se prejudicial error for counsel to read to the jury from a law book, as part of his argument.

      Klein & Harris, for plaintiff in error.

      A. W. Lamson and W. B. Beebe, for defendant in error.
   WINCH, J.

With some doubt and hesitation we reach the conclusion that the record of this case sustains the proposition that the plaintiff in error was negligent in’ not having a light at the areaway leading down to the janitor’s door in his apartment house. We do not think that, under the construction shown, other guard was necessary. He should have apprehended that women and children, as well as persons of business experience, would seek this door early in the evening, but after dark, for the purpose of inspecting rooms for rent, which his sign invited.

If we are right in this, the question of contributory negligence on the part of the plaintiff below is so correlated to it, that the jury might well have found that she was not negligent.

There is no reversible error shown on the record by the statement as to counsel’s reading to the jury from a law book. What he read is not shown and will not be presumed to have been prejudicial. At any rate, the court properly cautioned the jury upon this subject.

There was no error in refusing to give plaintiff in error’s request to charge before argument, for the request did not comply with the statute, and an examination of the general charge has satisfied us that the court properly covered all the points that the plaintiff in error called to his attention and was entitled to.

We find no prejudicial error in the three distinctions requested by the plaintiff below.

We do not agree with the claim of plaintiff in error that by the introduction of the word "solely” he has converted what would otherwise be a charge of contributory negligence into something else, nor, as before stated, do we find that there is any prejudicial error in the charge as given.

Judgment affirmed.

Henry and Marvin, JJ., concur.


text:
    EMINENT DOMAIN.
    [Summit (8th) Circuit,
    October 11, 1909.]
    Winch, Henry and Marvin, JJ.
    Big Cuyahoga Light, H. & P. Co. v. Turner, Vaughn & Taylor, Co.
    Failure to Give Opportunity For Agreement in Appropriation Proceeding.
    In an appropriation case, the jurisdictional fact that the corporation was unable to agree with the owners of the property sought to he appropriated as to compensation therefor is not shown by like propositions made to all the owners of different parcels of varying size and value, mailed to them the evening before suit was begun, without opportunity on their part to consider the propositions.
    ERROR.

      G. M. Anderson, for plaintiff in error.

      Allen, Waters, Young & Andress, for defendant in error.
   WINCH, J.

The original proceeding in this case was begun in the probate court by the plaintiff in error for the purpose of appropriating certain lands and rights of defendants in error. At the conclusion of the evidence on the preliminary hearing in that court, the probate judge dismissed the petition as to these defendants in error on the ground that the plaintiff had failed to bring itself within the requirements of See. 6415 R. S., which provides that “Appropriations can only be made when the corporation is unable to agree with the owner.”

It is said that the bill of exceptions shows that the plaintiff had made no tona fide effort to agree with the owners before it filed its petition in the probate court. The common pleas court took this vew of the case and affirmed the judgment.

We entertain the same opinion of the evidence in the ease.

The propositions made by plaintiff to these defendants were all alike, offered $1,000 to each, though their properties were of different values, and were mailed about four o’clock one evening and the petition filed shortly after seven o’clock the next morning, before .the defendants had any opportunity to consider them or make counter propositions.

The fact that the petition pended some time before it was heard does not change the situation. These sham offers could not ripen into bona fide propositions by the mere lapse of time after the owners had been brought into court. They then had a law suit to defend and not an opportunity to come to an amicable agreement with the plaintiff. The record disclosed no further effort to agree with the owners after the filing of the petition.

Judgment affirmed.

Henry and Marvin, JJ., concur.