author: HENRY, J.

text:
    STREET RAILWAYS.
    [Summit (8th) Circuit Court,
    October 12, 1910.]
    Henry, Marvin and Winch, JJ.
    Myron J. Morgenroth v. Northern Ohio Trac. & L. Co.
    1. More Than Ordinary Care in Operation of Street Car on Street Where Children Congregate.
    In an action for damages against a traction company for Injuries sustained by a child run over while playing in the street, a request to charge the jury, “That a street railway company in the operation of its cars upon the public streets is required to exercise more care at those places where children congregate and play than is ordinarily required,” should not be given, for “ordinary care” is the standard, and not “more care than is ordinarily required.”
    2. Matters Omitted Must Render Charge Misleading.
    A general exception to the court’s charge does not go to matters omitted, unless such omission renders the charge misleading.
    Error.
   HENRY, J.

After the exhaustive argument and reargument of this case and the intimations given upon the hearing upon minor points in the case, we confine our attention now to two main questions.

An infant too young to be guilty of contributory negligence was run over by defendant’s street car and lost its legs. The jury found for the defendant.

There was some evidence to show that children were wont to play near the scene of the accident and the plaintiff below before argument in writing requested the court to charge upon that subject as follows:

“4. That a street railway eo'mpany in the operation of its cars upon the public streets is required to exercise more care at those places where children congregate and play than is ordinarily required. And it is the duty of the railway company to know at what places, if any, small children are in the habit of congregating and playing.
“And if the jury find from the evidence that small children were in the habit of congregating and playing at or near the place of this accident at and prior to the time of this accident, it would be the duty of the defendant company to exercise more care in the operation of its cars at this point than is ordinarily required, and failure to do so would be negligence on the part of the defendant company.”

This was refused (over exception) and, as we think, properly so, because “more care than is ordinarily required” is too vague a standard to fix for the jury’s guidance. Indeed it is absolutely erroneous; for “ordinary care” is the standard, and not “more care than is ordinarily required.” It may possibly be questioned, too, whether the duty of the company to know is not too broadly affirmed. But the subject was thus properly brought to the court’s attention and a correct charge on the subject was called for (Lytle v. Boyer, 33 Ohio St. 506). But it was nowhere given, except abstractly, in the general charge, in the statement that the amount of care required of the defendant varied with the amount of danger encountered. The only exceptions reserved in this behalf were the exception to the refusal to give plaintiff’s said request before argument and the general exception, under the statute, to the charge as given. Neither of these exceptions alone, nor the two combined, suffice to save the precise question here sought to be made. The request was erroneous, and the general charge as it stands is not. A general exception to the court’s charge does not go to matters omitted, unless such omission renders the charge misleading. It can not be said that this charge is misleading. It contains no affirmative error. The court’s ruling to which the first exception was addressed was strictly correct. So was the court’s charge to which the second exception was addressed. Neither exception is well taken. A majority of the court (our brother Marvin dissenting) hold that a specific exception should have been reserved to the omission of the trial court to charge correctly upon the subject-matter brought to its attention by the plaintiff’s technically imperfect request. Columbus Ry. v. Ritter, 67 Ohio St. 64 [65 N. E. 613].

The other question is upon the defendant’s first request to charge before argument which was allowed as follows:

“If you find that the car in question was proceeding up West Market street and approaching Oakdale avenue at a reasonable rate of speed, and you further find that the motorman on said car running westerly saw two little children not in front of his car and in such close proximity thereto as to cause him in the exercise of reasonable care to believe that there was danger of running said two children down, and you find that, in the proper discharge of his duty to said children, he watched them as they went across the track until they got beyond the sphere of danger, and that by reason of his attention being attracted by said children crossing the track he did not see the Morgenroth boy approach the ear that he was running until it was too late to stop his car, by reason of which the said Morgenroth boy was run over, the defendant would not be liable.”

This was excepted to for the reason that it fails to take into account the motorman’s possible opportunity to see the Morgenroth boy approaching the car before his attention was distracted by the other two boys’ danger and in time to avoid injuring any of the three. We think this distinction is a little too finely drawn, both in fact and in law. If, as the request expressly presupposes, the cause of the motorman’s failure to see the Morgenroth boy was the distraction of his attention by the other boys’ danger, how can it be claimed that such failure was caused by the motorman’s previous inattention? If, moreover, as the request further presupposes, he was in the exercise of ordinary care in all that he did while the boys were within the sphere of danger, what more can the law require ? The various requests given seem to have fully presented every aspect of the case, except as already discussed, and we think that defendant’s first request as given does not conflict with any other view which the jury were or should have been free to consider.

We have given an unusual amount of time and attention to this case, and, pending the reargument, we called to counsel’s notice the difficulties which we had encountered in our previous deliberations upon it, to the end that we might have the utmost aid that might be afforded to us.

We find no error in the record and the judgment is affirmed.

Marvin and Winch, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    WILLS.
    [Summit (8th) Circuit Court,
    October 12, 1910.]
    Henry, Marvin and Winch, JJ.
    Sylvestor Falor et al. v. Lewis D. Slusser et al.
    Bequest to Children of Four Persons Named Share and Share Alike.
    Under a bequest of “the balance” of testator’s estate to be “divided among the children living of Isaac and Jacob Falor, and Alice and Henry Reaves, of Swan, Iowa, share and share alike, providing they are living at my death,” Alice and Henry Reaves Bhare and share alike with the children living of Isaac and Jacob Falor.
    Error.
   HENRY, J.

This proceeding in error, brought here upon a record exhibiting only the pleadings in the case below, no evidence having been introduced there, challenges the correctness of the common pleas court’s construction of the twentieth item of the will of Lydia Seanes Jackson, deceased. This item reads:

“The balance, if any, after paying all the above bequests and all my just debts and the expenses of settling up my estate, and all other just debts, shall be divided among the children living of Isaac and Jacob Falor, and Alice and Henry Reaves, of Swan, Iowa, share and share alike. Providing they are living at my death.”

The question submitted by the petition of the administrator de bonis non with the will annexed is “whether Alice and Henry Reaves are to share and share alike with the children living of Isaac and Jacob F'alor, or whether the children of Alice and Henry Reaves living at the time of testatrix’s death are to share and share alike with the children living of Isaac and Jacob Falor.”

The court below embraced the latter alternative; but we hold that the former alternative is the correct construction.

We come to this conclusion because of the comma after the word “Falor” and because of the concluding proviso, which repeats the word “living.” The natural meaning of the language excludes the children of Alice and Henry Reaves.

Judgment reversed because contrary to law and final judgment is here rendered according to the view here expressed.

The administrator is allowed $25 for his attorney’s fee in this court, in addition to the amount ordered below.

Marvin and Winch, JJ., concur.


text:
    ERROR — TRIAL.
    [Summit (8th) Circuit Court,
    October 12, 1919]
    Henry, Marvin and Winch, JJ.

      Hannah M. Wylie v. Nettie E. King.
    1. Discretion as to Order of Presentation of Evidence.
    In an action upon a promissory note against a maker and two endorsers, where the maker pleads forgery of her name and the plaintiff and endorsers claim the maker’s signature is genuine, it is not an abuse of discretion to permit the endorsers to introduce evidence of the genuineness of the maker’s signature after she has rested her defense.
    2. Failure to Object to Omission of Jury to Answer Special Interrogatory Not Reversible Error.
    A judgment will not be reversed because the trial judge received the jury’s general verdict without requiring an answer to be returned to a special interrogatory, when it appears that the parties were in court when the verdict was returned and made no objection to the omission complained of, or that the question , asked, if answered, would not have tested the correctness of the general verdict.
   HENRY, J.

The action below was founded upon a promissory note as follows:

$525.85 Akron, 0., Feb. 9th, 1906.
“Two years after date or previous death after date 1 promise to pay to the order of myself five hundred and twenty-five and 85-100 dollars, at Second National Bank, Akron, 0. Value received, with interest at eight per cent per annum after maturity.
“Mrs. Hannah M. Wylie.”
Said note is endorsed:
“Demand, notice of non-payment, protest and diligence in collection waived.
“Mrs. Hannah Wylie,
“C. F. Chamberlain,
“O. A. Hoyt.”

The defendant, Hannah Wylie, answered that her signatures were forged. The defendants, Hoyt and Chamberlain, answered admitting their secondary liability, denying the alleged forgery and praying that judgment fixing primary liability upon the defendant, Hannah Wylie, might be rendered.

Upon trial to a jury verdiet and judgment were rendered against all the defendants. Hannah Wylie seeks by petition in error here to reverse this judgment.

The note is claimed to have been given by Mrs. Wylie in payment of the first premium on a life insurance policy issued to her through Hoyt and Chamberlain, agents of the insurer. Mrs. King, the plaintiff below, became the hona fide endorsee of the note from Hoyt and Chamberlain.

Among the errors complained of is the alleged abuse of discretion by the trial court in permitting Hoyt and Chamberlain, after the defendant had rested, to introduce expert testimony upon handwriting to defeat her defense of forgery. Seasonable protest had been made that all such evidence ought to be introduced in connection with plaintiff’s case in chief. But in the triangular case which resulted from the raising of an issue between the defendant Wylie and the other defendants below, it was impossible to exclude the defendants Hoyt and Chamberlain from their right to reply to their codefendants’ defense of forgery by allegation and evidence that her signature was genuine. It follows that no abuse of the trial court’s discretion can be predicated of its ruling.

Error is also assigned upon the court’s reception of the jury’s general verdict without any answer being returned by them to a special interrogatory submitted at the request of the defendant Wylie. Either of two complete answers may be made to this contention: First, that in contemplation of law the parties were in court when the verdict was returned and should then and before the jury’s discharge, have objected to the omission complained of. Secondly,'that the interrogatory was not such as that an answer thereto would tend to test the correctness of the general verdict. The interrogatory is as follows: “Was the defendant, Hannah M. Wylie, at her home in Akron, on Friday, February 9, A. D. 1906, from 8 o’clock a. m. to 4 o’clock p. m.?” The testimony tended to prove that the execution of this note by Mrs. Wylie took place at her home on this date and between these hours. But an answer,’ either yes or no, to the question as submitted would not necessarily have indicated that she was continuously present or absent during the whole period named. The trial court said to the jury on submitting this interrogatory “This question is not decisive of the question in the ease, but is merely a finding of fact or interrogatory to be answered by you on one feature of it.” This, also, is complained of as error. But the court’s observation was literally true. It was not the controlling issue. That issue was simple, viz: were Mrs. Wylie’s signatures genuine? The court’s charge is not very elegant in style, but it sufficiently indicated the point in controversy and the jury’s duty. .Upon consideration of all the evidence we are impressed that the jury’s verdict was right and the judgment is therefore affirmed.

Winch and Marvin, JJ., concur.


text:
    INSURANCE.
    [Cuyahoga (8th) Circuit Court,
    February 3, 1908.]
    Winch, Henry and Marvin, JJ.
    Anna Herold v. Pacific Mut. L. Ins. Co. et al.
    1. Change of Beneficiary Effective without Endorsement of Life Insurance Company..
    Where a policy holder had sent his policy to the insurance company, requesting their endorsement upon it approving a change of beneficiary, but no such endorsement had been made at the death of the insured; Held; Equity will treat that as done which should have been done and give effect to the change.
    2. Change of Beneficiary not Effective Until Injunction Dissolved.
    • Where an injunction has been issued restraining the change of beneficiaries of an insurance policy, no change will be effective until said injunction is dissolved.
    Error.

      J. A. Fogle, for plaintiff in error.

      Eorr & Lowenthal and F. E. Bruml, for defendant in error.
   HENRY, J.

The action below was an equitable interpleader by the de fendant company to determine the lawful beneficiary of a policy of life insurance as between two rival claimants, namely, Antonia Herold, mother of the insured, in trust for his two children, and the plaintiff, Anna Herold, his wife. The amount due upon the policy was paid into court and the contest is now solely between these rival claimants.

The facts having been pretty fully set forth in the pleadings, each claimant moved for judgment; the motion of the widow was denied, and that of the mother, as trustee, was granted. The dispute arises because of an attempted change of beneficiary made by the insured just before the death of Her-old, whereby he sought to substitute his mother as trustee, as aforesaid, in place of his wife. To consummate this change, in accordance with the provisions of the policy, an endorsement thereon by the insurance company was necessary. The insured died pending the correspondence between him and the insurance company with respect to this change, and the endorsement was never made.

The petition in error complains that the judgment in favor of the mother, as trustee, was erroneously rendered, and prayed that this judgment may be reversed and judgment entered upon the pleadings for the plaintiff in error.

In support of her contention the plaintiff in error alleges four grounds:

1. That no change of the original beneficiary so long as she survived was possible under the terms of the policy; and this point we may say, in passing, appears not to be the true construction of that instrument.

2. No change of beneficiary was effected for lack of the necessary endorsement thereof upon the policy, as aforesaid; and on this point also we remark in passing, that equity in such cases will treat as done that which ought to have been done, and unless there be some other impediment in this behalf to the granting of the relief prayed for, the mere fact that the insurance company failed to do what the circumstances required it to do, when proper application in accordance with the policy was made, will not suffice to defeat the change of beneficiary, notwithstanding the intervening death of the insured. Cooley, Briefs on Insurance, page 3756.

3. The third ground urged is that the change of beneficiary applied for imposed upon the insurance company by the new and additional burden of seeing to the proper performance of the trust thereby sought to be created in behalf of the insured’s children, and such change may not be consummated either in law or in equity without the consent of the insurance company, which in this case was withheld. But on this point we hold that the trust sought to be created was not of the character which imposes a duty to see to the ultimate application of the trust fund, and the insurance company by having paid this money into court, is acquitted of any further responsibility to the cestui que trust (represented herein by the guardian ad litem) even though the fund should be awarded and paid herein to the trustee for their benefit.

4. The fourth ground arises upon the alleged fact that the insured at the time he sought to make the change of beneficiary did so in violation of« a subsisting injunction in an action then pending between him and his wife. This allegation in the answer and cross-petition of the plaintiff in error is denied in the reply of the adverse claimant, and therefore, if the point is meritorious, no judgment on the pleadings should have been rendered.

The point made is, that inasmuch as it requires affirmative relief in equity to enable Antonia Herold, trustee, to recover as the substituted beneficiary under the policy with respect to which the attempted change of beneficiary had not been fully consummated in contemplation of law, such affirmative relief of equity will be denied when such change could not have been attempted or consummated without violation of a subsisting order of a court of equity forbidding the doing of that very thing. This point we hold to be well taken, and the judgment of the court of common pleas is accordingly reversed and the cause remanded for trial of this issue.

Marvin and Winch, JJ., concur.


text:
    ERROR.
    [Cuyahoga (8th) Circuit Court,
    February 17, 1908.]
    Henry, Marvin and Winch, JJ.
    In Re Estate of Aaron Bloch, Dec.
    Time Within Which to File Petition in Error.
    A petition in error must be filed within four months of the rendition of judgment, and not from the date of the entry of the judgment upon the journal.
    Error.

      Gollister & Halle, for plaintiff in error.

      Kline, Tolies A Goff, for defendant in error.
   HENRY, J.

The petition in error filed hei’ein October 7, 1907, must be dismissed for want of jurisdiction, because it was filed more than four months after the rendition, May 24, 1907, of the judgment sought to be reversed. It is not material under the circumstances disclosed by the transcript that the journal entry of judgment is dated June 14, 1907 which is less than four months before the filing of the petition in error. The exact language of the transcript is as follows:

“June 14, 1907. To the court.
“This cause came on to be heard on the 24th day of May, 1907, * * * on consideration whereof the court said 24th day of May, 1907, do find, ’ ’ etc.

The case of Eldrige & Higgins Co. v. Barrere, 74 Ohio St. 389 [78 N. E. 516], must be distinguished, for there the journal entry asserted in one place that the cause came on to be heard November 4, 1904, and in another place, that it was decided October 24, 1904, a plain contradiction, which would prevent the judgment thereby evidenced from becoming operative to the prejudice of the defeated party in respect of his right to invoke a review of said judgment at any time before the expiration of the statutory period when reckoned from the later date.

True, there is much said in the opinion of the court, as well as in Coe v. Erb, 59 Ohio St. 259, 263 [52 N. E. 640; 69 Am. St. 764], to the effect that a judgment becomes operative only after the date of its actual entry upon the journal and while this is undoubtedly true on the facts of those cases, the rule is by no means universal, nor do the syllabi of those eases seek to make it so.

This court was long ago committed to the proposition that “In the nature of things a judgment must be rendered before it can be entered.” State v. Meacham, 3 Circ. Dec. 335 (6 R. 31, 34). The journal entry in this case plainly and consistently distinguishes between the date of rendition and date of entry of the judgment complained of.

■ The statute requires a bill of exceptions to be filed within four months after the rendition of judgment.

The defeated party below was not misled, because his motion for a new trial was filed May 25, 1907, the day following the rendition of the judgment, and twenty days before the entry thereof, nor was there any opportunity for such misunderstanding as sometimes results where the overruling of the motion for new trial and the entry of final judgment are contemporaneous. The entry of judgment here was June 14, 1907, whereas the motion for a new trial was overruled five days later, to wit, June 19, 1907. There was nothing, therefore, by which the defeated party could have been misled.

Petition in error dismissed.

Winch and Marvin, JJ., concur.


author: WINCH, J.

text:
    BANKRUPTCY — FALSE PRETENSES.
    [Cuyahoga (8th) Circuit Court,
    June 14, 1909.]
    Winch, Henry and Marvin, JJ.
    J. H. Matchett v. Emma F. Allen.
    Claim for Money Obtained under False Pretenses not Discharged In Bankruptcy.
    Under the 1903 amendment of the national bankruptcy act, claims for money obtained under false pretenses are not discharged by an adjudication in bankruptcy.
    Error.

      J. C. Heald, for plaintiff in error.

      Noah S. Good, for defendant in error.
   WINCH, J.

Allen sued Matchett to recover money obtained of her by false pretenses. The false pretenses consisted in representing that he had money in the bank to meet a cheek which he induced Allen to cash for him, when, in fact, he had no funds. Matchett pleaded his discharge in bankruptcy, and actual knowledge of the pendency of the bankruptcy proceedings on the part of Allen, though, the debt was not scheduled. Allen met this defense with the suggestion that the bankruptcy act does not discharge claims for money obtained under false pretenses. Matehett then suggested that the false pretenses must be in writing.

Upon submission of the controversy to a jury, it found for Allen. This verdict was right, for Matehett’s claims are not maintainable under the 1903 amendment of the bankruptcy act.

The leading work on this subject, Remington, Bankruptcy, Sees. 2746, 2747 and 2751, reads as follows:

“2746. Liabilities for obtaining property by false pretenses or false representations, are excepted from the operation of discharge.
“This exception was added by the amendment of 1903, and took the place of the former provision that read: ‘Judgments for fraud or for obtaining property by false pretenses or false representations.’
“2747. Not all classes of fraud come under this section (although other frauds are excepted by a later provision if committed as an officer or in a fiduciary capacity) but only such frauds as are embraced within the term ‘obtaining property by false pretenses or false representations.’ The term is more restricted in respect to the classes of fraud embraced within its exceptions than was the law before the amendment of 1903, although broader in the other respect that judgment is not a prerequisite.
“2751. The false representations need not necessarily have been made in writing in order to except the debt from the discharge.
“Obiter, Katzenstein v. Reid, 16 A. B. R. 746 (Ct. App. Tex.) : ‘There is no requirement in amended See. 17 as to manner in which the false pretenses or false representations shall be conveyed to the defrauded party, and we do not believe that the national legislature intended that a requirement that such pretenses or representations should be in writing should be read from Sec. 14 into Sec. 17. In the first section it is provided that the bankrupt shall not be discharged if he has obtained property on credit upon a materially false statement in writing made to the person defrauded for the purpose of obtaining such property on credit; but in See. 17 it provides that such discharge will not release the bankrupt from liabilities for obtaining property 'under false pretenses. The two provisions are not antagonistic, and there is no warrant for reading one into the other.”

We find'no errors in the record and the judgment is affirmed.

Henry and Marvin, JJ., concur.


text:
    MUNICIPAL CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    June 14, 1909.]
    Winch, Henry, and Marvin, JJ.
    C. S. Horner v. John M. Spence et al.
    Municipality not Liable for Horse Injured by Falling over Pile of Brick in Street.
    A municipal corporation is not liable for damages resulting from collision with a pile of bricks negligently left in the street where there is no evidence to show that the city had either actual or constructive knowledge that the bricks were in the street.
    Error.

      Wm. H. Miller, for plaintiff in error.

      N. D. Baker and Frank Stevens, for defendant in error.
   WINCH, J.

Homer sued Spence Brothers and the city of Cleveland for damages sustained to his horse and cutter by reason of running onto a small pile of bricks in the street covered up by snow so that he did not see it. Spence Brothers were dismissed out of the suit, and, upon submission of plaintiff’s evidence as to the liability of the city, the trial court directed a verdict in its favor, on the ground that the plaintiff had failed to show who left the bricks in the street or that they had been there for any length of time before the accident.

There being nothing in the case to show that the city had actual or constructive notice of this nuisance in the street, the order of the trial judge was clearly right.

Judgment affirmed.


text:
    RECEIVERS — TAXES.
    [Cuyahoga (8th) Court of Appeals,
    March 9, 1914.]
    Winch, Meals and Grant, JJ.
    Charles R. Morley v. Cleveland Hippodrome Co. et al.
    Priority of a Franchise Tax Accruing after Receivership.
    A franchise tax accruing after the appointment of a receiver for a corporation is entitled to preference by virtue of Sec. 5506 G. C., and should be first paid out of the fund finally realized from a sale by the receiver of the assets of the corporation.
    [Syllabus by the court.]
    Appeal.

      Tolies, Hogsett, Ginn & Morley, for plaintiff.

      Tí. E. Morgan, for defendant.
   WINCH, J.

The question in this case is whether a franchise tax accruing after the appointment of a receiver for a corporation is entitled to preference and should be first paid out of the fund finally realized from a sale by the receiver of the assets of the corporation.

The question is answered affirmatively by Sec. 5506 G. C., which provides:

“The fees, taxes and penalties required to be paid by this act shall be the first an,d best lien on all property of a public utility or corporation, whether such property is employed by the public utility or corporation in the prosecution of its business, or is in the hands of an assignee, trustee or receiver, for the benefit of the creditors and stockholders thereof.”

It is claimed by the creditors of the corporation in this case, however, that the section quoted intends only that the franchise tax which accrues before the appointment of a receiver shall be a lien upon its property and be first paid out of the assets thereof when the receiver disposes of them. In this connection it is pointed out that as the tax is upon the right of the corporation to exercise its franchise and not upon its property and is computed upon its issued and outstanding capital stock, without reference to whether it has any property, the tax would not be a lien upon the property of the corporation unless made so by the statute quoted, for no other law makes it a lien, and from this premise is deduced the conclusion that the sole purpose of the legislature in enacting said statute was to create this lien and require it to be recognized by assignees, trustees and receivers who take charge of property upon which the tax has already become a lien, but not to create a lien upon the property in the hands of a receiver not exercising the franchise of the corporation, but only conserving its assets until sale thereof.

In this connection it is suggested that only the corporation can stop the accrual of this franchise tax by taking certain steps and filing certain certificates as provided by law, and that neither the receiver nor the creditors can either require such corporate action or themselves stop the renewal of the tax from year to year. It is said that this failure of the legislature to authorize the receiver or creditors to stop the annual assessment of the tax upon property sequestered for the benefit of the creditors produces a situation so unjust to them, where litigation over the assets and the priority of liens is involved and protracted, that this injustice requires an interpretation to be given to the statute which obviates such injustice.

Answering the latter suggestion first, it is sufficient to say that this injustice should be pointed out. to the legislature and not to the court. If the statute is clear and unambiguous, its mandate is to be obeyed by the court no matter how unjust the result may seem to the creditors. Taxes are a burden in any form, and those who deal with corporations and extend them credit, do so with full knowledge of the right the legislature has reserved to burden the property of a corporation with taxes, even after its property has passed into the hands of a receiver appointed for the benefit of its creditors. These remarks assume, of course, that the statute under consideration is clear and unambiguous. Let us see if that is so.

If the contention of counsel for creditors is sound and the sole purpose of the legislature in enacting the statute was to make the tax a lien upon the corporate property, then the last half of the statute is surplusage and it would have been suffieient to have enacted the first part alone, to wit:

‘ ‘ The fees, taxes and penalties required to be paid by this act shall be the first and best lien on all property of a public utility or corporation.”

Being thus made a lien upon the corporate property, when that property afterwards passes into the hands of an assignee, trustee or receiver, it passes subject to that lien as well- as to all other liens lawfully upon the property.

But the legislature saw fit to say something more and meaning must be given to the additional words, if they mean anything.

Having by ■ other sections required said fees, taxes and penalties to be paid so long as the corporation continues to be a corporation and to have issued and outstanding capital stock, the legislature first made these fees, taxes and penalties a first and best lien upon all property of the corporation and then, specifying with regard to the corporate property, added: “whether such property is employed by the public utility or corporation in the prosecution of its business, or is in the hands of an assignee, trustee or receiver, for the benefit of the creditors and stockholders thereof.”

The words “such property,” here used, refer to the words “property of a public utility or corporation,” which appear in the first part of the section.

So the only question remaining in this case is whether property in the hands of a receiver appointed for the benefit of creditors and stockholders of a corporation, is the property of the corporation or of the receiver, or of the creditors and stockholders for whose benefit the receiver was appointed. In other words: Where is the title to corporate property after a receiver has been appointed and taken charge of the property under the orders of a court?

This precise question has been twice answered by the Supreme Court of Ohio.

In the case of Lafayette Bank v. Buckingham, 12 Ohio St. 419, 424, it is said:

“The appointment of a receiver is only a provisional appointment for the more speedy getting in of the estate or assets, in relation to which the appointment extends, and for the better securing the same for their safety and the benefit of those who may be entitled thereto. A receiver, whether appointed by a court, or by a board, as in this case, is the ministerial officer and servant of those from whom he receives his appointment; and he is responsible for the exercise of good faith and reasonable diligence in the discharge of his duties. But it can not be said that a receiver, by virtue of his office in any ease, nor by the provisions of the statute in this ease, becomes vested with the title to the property or assets which he administers. His relation to the property, like that of a constable, sheriff or master in chancery, is merely that of a ministerial officer.”

In the case of Cheney v. Cycle Co. 64 Ohio St. 205, 214 [60 N. E. 207], we read:

“The relation of an assignee and receiver to the property of an insolvent debtor is in many respects similar. The one obtains title to and authority and power over the property by reason of the joint act of the debtor and the court; the other obtains a like authority by the act of the court alone, not having the title, but standing as the ministerial officer of the court, his relation to the property being much like that of a sheriff or master in chancery. Bank v. Buckingham, 12 Ohio St. 419. His appointment is an equitable remedy, bearing the same relation to courts of equity that proceedings in attachment bear to courts of law, the appointment being treated as an equitable execution. The purpose is to secure the means for satisfying the final order and judgment of the court in the action, and the effect of the seizure is to place the property seized in the custody of the court.”

In the light of these two decisions the legislature enacted the statute here under consideration, and knowing from them that the “equitable execution” levied upon the corporate property by the appointment of a receiver does not divest the corporation of its title to said property until sale is made by the receiver under orders of the court appointing him, it provided that the franchise tax required to be paid by the corporation shall be the first and best lien upon “such property,” to wit, the property of the corporation, whether employed by it in the prosecution of its business, or in the hands of a receiver for the benefit of creditors and stockholders.

The statute thus appears to be clear and unambiguous, requiring no aid from rules of construction invoked by the creditors, and under it the relief claimed by the attorney-general in behalf of the state, to wit, the payment of the state’s claim for the Willis tax for three years during which time the property of the corporation was in the hands of the receiver, must be allowed, to be first made out of the fund realized by the receiver ’s sale, before the claims of mortgagee or other lienholders are paid.

The result here reached is the same as that reached under a similar statute in the state of New Jersey, where the same ques-tons were raised. United States Car Co. In re, 60 N. J. Eq. 514 [43 Atl. 673].

Judgment for the state; see journal.

Meals and Grant., JJ., concur.


author: RICHARDS, J.

text:
    DAMAGES — INJUNCTION.
    [Erie (6th) Circuit Court,
    September 27, 1912.]
    Wildman, Kinkade and Richards, JJ.
    Ed. H. Zurhorst v. C. A. Judson et al.
    Judgment for Damages on an Injunction Bond can not be Supplemented by a Second Judgment on a Second Bond, Unless Separate Damages are Shown.
    Where bond is given by a plaintiff in the common pleas court in an injunction proceeding, and judgment having been rendered against him a second bond is executed on appeal to the upper court where a like judgment against plaintiff was rendered, and thereafter an action was brought by the defendant on the first bond and judgment recovered for the full amount named therein, and a second suit is then brought on the bond executed in the upper court, it will be presumed that all damages sustained were suffered before the first action was brought and were assessed by the jury in that action, and the burden being on plaintiff to show separate damages unler the second bond and no such damages being shown, a judgment for flv® cents in the action on the second bond will be affirmed.
    [Syllabus by the court.]
    Error.

      E. C. DeBan, for plaintiff in error.

      E. L. Peeke, for defendant in error.
   RICHARDS, J.

The defendants in error filed a cross-petition in error. In the year 1905, Judson brought suit against Zurhorst for the purpose of enjoining him from circulating a certain pamphlet entitled “A Biographical Sketch of a Few Short Skate Politicians.” A temporary injunction was granted in the court of common pleas upon the execution of a bond in the sum of one hundred dollars. On the trial of that ease in the common pleas court, judgment was rendered in favor of Zurhorst. Thereupon Judson appealed the case to the circuit court, in which court one of the judges granted a temporary injunction upon the execution of an injunction bond in the sum of $250. The circuit court on the trial of the case found in favor of Zurhorst, which judgment was affirmed by the Supreme Court. Thereafter Zurhorst brought an action in the common pleas court of Erie county on the $100 injunction bond given in the court of common pleas, and recovered a verdict and judgment on said bond in the amount of $300, which judgment was affirmed by this court.

The present action was brought in the court of common pleas by Zurhorst upon the $250 bond given in the circuit court. In the court of common pleas, in this last case, a jury was waived and the court found the issues with the plaintiff and assessed the amount of his recovery at five cents, and ordered that each party should pay his own costs.

The bill of exceptions contains all the evidence offered on the trial, and includes also the evidence which was offered on the trial of the action brought upon the $100 bond. It appears from the evidence that in the action on the first bond the plaintiff introduced evidence tending to show all of the damages sustained by him, not only in the common pleas court but in the circuit court and in the Supreme Court, and it is insisted by counsel for the defendants in error that the adjudication in that case is conclusive upon the rights of the plaintiff that he was entitled to recover the sum of $100 and no more, and that said amount is the entire damage suffered by him.

It may be somewhat difficult to state any sufficient reason why this contention is not well taken. Clearly all damages which the plaintiff had suffered were incurred before that action was brought, and may have been found and assessed by the jury in that action, and for aught that appears all damages suffered were assessed in that action.

The burden of proof rests on the plaintiff to show any separate damages suffered by him after the execution of the bond in the circuit court, but the evidence gives the amount of damages in a lump sum, so that the trial court was not furnished with evidence which would enable it to ascertain any amount of damages recoverable under the second bond, if there were such damages.

We find no error in this case to the prejudice of the plaintiff in error.

So far as the cross-petition of the defendants in error is concerned the amount adjudicated against, them is the nominal sum of 5 cents, and the costs made by tbem amounting to some two or three dollars, a sum which would he too trifling to justify the court in reversing the ease and remanding it for further proceedings by reason of that portion of the judgment.

We affirm the judgment on the ground that on the whole, substantial justice has been done by the trial in the court of common pleas.

Wildman and Kinkade, JJ., concur.


author: MARVIN, J.

text:
    CRIMINAL LAW — JURY.
    [Cuyahoga (8th) Circuit Court,
    May 11, 1910.]
    Winch, Marvin and Henry, JJ.
    Antonio Mangano v. State of Ohio.
    Juror Stating He Would Not Recommend to Mercy Disqualified.
    A proposed juror in a first degree murder case, who, in answer to a question by the prosecuting attorney as to what his mental attitude would be toward a recommendation to mercy, if he . should be clearly of the opinion, after hearing the evidence, that the accused was guilty of the crime charged against him, states that under the circumstances described in the question he would not recommend the accused to mercy, may be challenged for cause, but if not so challenged, a verdict of guilty without recommendation to mercy will not be reversed because such juror served in the case.
    Error.
    . P. L. A. Leighley and W. H. McMorris, for plaintiff in error.

      J ohn A. Cline and Walter D. Meals, for defendant in error.
   MARVIN, J.

Mangano was convicted of murder in the first degree on a trial in the court of common pleas. "We are asked to reverse the judgment because of certain questions which were asked of and answered by the jurors on the voir dire.

The question substantially put to each of the jurors, about which complaint is made, was the one propounded to juror Kelley, and that reads:

“Supposing that you were clearly of the opinion after hearing the evidence, that the defendant and his wife had some words, perhaps a quarrel, and that he killed her, and that having killed her he then made an attack upon one of her children, a boy about nine years old, and killed him, and having killed him he made an attack upon the girl about eleven years old and killed her, and then made an attack upon a boy about two years old, stabbed it and thought he had killed it, gathered up some clothes about the place, wiped up some of the blood he had spilled and put the clothes that he had picked up in the stove, cloths or whatever they were, and then ran away and was later apprehended in the city of Akron and brought back here, suppose that while he did this you are satisfied that he was in full possession of his mental faculties, what would be your mental attitude concerning a recommendation of mercy?”

This question was answered by several jurors to whom it was put, that under the circumstances named in the question they would not recommend the prisoner to mercy. The complaint is urged here that after having so answered this question each juror making such answer pledged, if he returned a verdict of guilty, to withhold any recommendation to mercy, and we think this is practically true.

It was suggested by counsel for the state, in argument, that the statute which provides that the jury may recommend one convicted of murder in the first degree to mercy, upon which recommendation the punishment is fixed at imprisonment for life instead of being capital, was enacted so that where there was some doubt on the part of the jury as to the guilt of the accused, the jury might, by recommending the accused to mercy, relieve themselves from something of the responsibility which would result from a simple verdict of guilty. We think this is a mistaken understanding of the purpose of the statute. It was not designed that any less degree of evidence should be required to convict of murder in the first degree, because of this statute, than was required before the enactment of said statute. Before a verdict of guilty can be rendered under the statute as it is now (and as it was previous to the enactment of this statute) , the provision as to a recommendation of mercy requires the state first to satisfy the jury beyond a reasonable doubt of the guilt of the accused. It would not do to say that the jury may relieve themselves from responsibility in finding one guilty of murder in the first degree upon less evidence than has always been required, by having the opportunity to recommend the prisoner to mercy. It seems to us clear that one answering this question unqualifiedly in the affirmative so committed himself on this question of mercy as not to be at liberty to act. All of the facts stated in this question might exist and a juror might still feel that his duty required him to make a recommendation of mercy. Indeed, all of the facts might exist, as stated in the question, and still a juror not be warranted in finding the prisoner guilty of murder in the first degree. The language is, as already quoted: “Supposing you were clearly of the opinion after hearing the evidence, that the defendant and his wife,” etc. One may be clearly of the opinion that a fact exists and still that fact may not be established with that degree of certainty that is required to convict a prisoner of crime. One may be clearly of the opinion that a fact exists and still entertain some doubts about its existence. But aside from this, and assuming that what is meant by the words “clearly of the opinion” is “satisfied beyond a reasonable doubt,” still facts might be developed on the trial that would make it proper that there be a recommendation to mercy. At least, that might lead unprejudiced men to recommend to mercy.

Supposing that at the time of the trial the prisoner; was dying of some malignant disease, that it was clear that within the next six months he must die from such disease, might not a conscientious juror, who had no doubt from the evidence as to the guilt of the prisoner, recommend him to mercy, for the sake of saving him from capital punishment? Other reasons for such recommendations will readily suggest themselves, and yet these jurors, when they answered this question as they did, committed themselves to the proposition that in no event, were the facts as stated in the question, would they recommend to mercy. We think it was a mistake on the part of the counsel for the state to feel called upon to ascertain what the views of the jurors were upon this question. It was stated in argument, hy counsel, for the state, that since the enactment of the statute allowing a recommendation to mercy there have been no persons executed for murder committed in this county, notwithstanding there have been a number of convictions for murder in the first degree. We think there may be grave doubt as to whether the prosecuting attorney or any other citizen should feel great humiliation or great regret, that this fact exists. In any event, we feel that the question of the recommendation to mercy should be left entirely to the jury, without any suggestion on the part of counsel for the state in the first instance. But we are further of the opinion, and hold, that since no objection to any one of these jurors was made upon thé ground of the answer which he had made to this question, it is too late now to make the question.

From what has been said in the opinion it is clear that we think that the juror who had answered this question as it was answered might have been successfully challenged for cause hy the prisoner. Not having been so challenged, we hold that the question can not be made in the case now.

The view here taken is sustained, as we think, not only by reason but by the case of State v. Stewart, 45 La. Ann. 1164 [14 So. 143], the last of the syllabus of which reads:

“A juror who on his voir dire states that he would qualify his verdict in all capital cases, is an incompetent juror to serve on a jury in a case where the defendant is charged with murder. ’ ’

And in the opinion, this language is used:

“Tobe Leveart was presented as a juror and was asked by the district attorney if he was opposed to capital punishment. He answered that he had no scruples to the infliction of capital punishment; that on proper evidence he would render a verdict that would inflict the death penalty. But in answer to questions propounded by the trial judge, who explained to him that he would have the right to qualify his verdict, he stated he ‘would always qualify his verdict, and would not hang any man if he could help it. ’ The juror was peremptorily challenged by the district attorney, which was sustained by the court. The juror was not competent.
“The statute which authorizes a jury in capital cases to bring in a qualified verdict, ‘guilty without capital punishment,’ was not enacted to satisfy the * * * scruples of jurors in the infliction of capital punishment. It was intended, if extenuating circumstances justified it, to authorize the jury to qualify the verdict.”

The judgment is affirmed.

Winch and Henry, JJ., concur.


author: JONES, J.

text:
    AUTOMOBILES.
    [Hamilton (1st) Circuit Court,
    March 9, 1912.]
    Giffen, Swing, and Smith, JJ.
    Samuel Klein v. Daniel Goldstein.
    1. Automobile not Charged Being Unlawfully on Wrong Side of Street by Words “in the Place."
    In an action for personal injuries resulting from being struck by an automobile, the use in the general charge of the phrase ‘‘in the place” in which the automobile was running will not be construed on review as implying that the automobile was unlawfully in that place, but as directing the jury’s attention to one of the conditions as to place, circumstances and surroundings, which go to indicate the degree of care which should have been used by the chauffeur on that particular occasion.
    2. Pedestrian Alighting from Street Car not Bound to Look in Both Directions for Automobiles.
    Refusal to give a special instruction to the effect that an injured woman was bound to look to the south for automobiles which might pass to the left of the car from which she was alighting, as well as to the north for vehicles which under the rules of the road ordinarily pass on that side of a thoroughfare.
    [Syllabus approved by the court.]
    Error.

      Worthington <& Strong and Frank Seinheimer, for the plaintiff in error.

      Henry Bentley and Horace A. Reeve, for Goldstein.
   JONES, J.

The issue joined by the pleadings and submitted to the jury was whether the negligence of the chauffeur or of Mrs. Goldstein caused her injuries. There is no allegation of contributory negligence in the answer. The verdict was not against the weight of the evidence; the question was one of fact for the jury, and consequently there was no error in failing to instruct a verdict for defendant. Having so determined, three grounds urged by plaintiff in error remain for our consideration: Did the trial court err—

First. In refusing to give the eight special charges or any of them requested by defendant?

Second. In the general charge?

Third. In refusing to submit the interrogatories, requested by defendant, to the jury?

In our opinion the first special charge was properly refused, for the' reason that there was no evidence to support the last statement, namely: “He was not violating any law or the city ordinance in so doing.”

We do not know whether there is any city ordinance forbidding his driving the automobile as he did. Not one testified that there was no such ordinance. For aught that appears in the evidence, there may be an ordinance requiring him to stay to the right of the center line of the street. The charge was objectionable, too, for the reason that plaintiff does not allege that the chauffeur was negligent in regard to the place where he was driving, but only as to his manner of driving. The question of the legality of the place where he drove was injected into the ease by the effort of defendant to show that by ordinance he was required to drive where he did.

The second special charge in question was refused, and properly so. An ordinance of the city was introduced in evidence by defendant in an attempt to show, and from which he argued that in passing to the left of the street ear the chauffeur was only complying with the requirements of said ordinanee. We do not agree with such construction of the ordinanee. In our opinion it does not mean that automobiles must pass street cars to their left, but only applies to such vehicles the drivers of which have a choice as to where to drive and whose driving can and should exercise said choice with a mutual and reciprocal regard for the safety and convenience of all and with a desire to carry out the spirit and letter of the regulation therein contained. Such a choice motormen do not have. All that can be asked of them in this respect is to keep their cars on the tracks. To give the second charge after the ordinance had been read to the jury would have been in effect to charge that the driver of the automobile did what he was positively required by law to do in turning to the left. In this view of the matter the second charge was erroneous, especially in the absence of any reference to the degree of care required of each party under all the circumstances.

The third special charge would require the court to say to the jury that a pedestrian in crossing a street should look north and south, or rather, that in this particular case Mrs. Goldstein should look south as well as north. The jury should always be left free to determine from their experience and judgment whether the person injured did what could reasonably be expected of a person of average prudence under similar surroundings and conditions. It is more than probable that, exercising such judgment, the jury in this case thought Mrs. Goldstein did the natural and proper thing in first looking to the north.

The law applicable to this special charge is well stated in the case of Lake Shore & M. S. Ry. v. Fisher, 26 O. C. C. 143 (4 N. S. 593), affirmed, no op., Lake Shore & M. S. Ry. v. Fisher, 51 Ohio St. 574. The court there said:

“We think it can not be said as an absolute rule of law that the plaintiff must look ahead under all circumstances. It is his duty to be cautious or careful, but whether he must look ahead or behind or to one side or down or up depends upon the particular situation in which he may be placed at the time.”

In special charge No. 4 the court was asked to instruct the jury that “she was bound to look south for vehicles approaching from that direction as well as to the north. ’ ’ She was required to exercise her senses in order to protect herself from injury, and it was not for the court to say that she was under the duty to look in one direction as well as another, and hence this charge is subject to the same objection as No. 3.

Special charges Nos. 5 and 6 are objectionable for the same reason, namely, that they place emphasis upon the duty of Mrs. Goldstein to look in a particular direction.

Special charge No. 7 is erroneous, as we think the question for determination was one of fact and not of law.

Special charge No. 8 wras properly excluded, for the reasons assigned with reference to special charges Nos. 1 and 2.

We come now to the second question, namely, was there error in the general charge? The main contention of plaintiff in error’s counsel in this respect is that the court erred in referring in his general charge to the “place” in which the defendant’s chauffeur was driving his machine. There is nothing in the language used by the court throughout the trial which would indicate that the trial court entertained the opinion that the ordinance introduced in evidence did not authorize the ehauffer to drive his car to the left of the street car. We think therefore, that it is putting a forced construction upon the language of the court to say a reference to “in the place” where the automobile was going implied that it was unlawfully in such place. We not only do not think the language will bear any such construction, but believe that an omission to use that or similar language would have been error. The degree of care required of a person is always controlled by and depends upon the place, circumstances, conditions and surroundings. There is no arbitrary or fixed rule. But whether a person has exercised such care as ordinary prudence requires is always a question to be determined by the jury. We find no error in the insertion of this phrase in the general charge nor do we find any other error therein.

As to the interrogatories submitted by counsel for the defendant below, we think the court exercised a proper discretion in refusing to propound them to the jury.

Interrogatory No. 2 is doubtless irrelevant and improper, because it is addressed to the doctrine of the “last clear chance.” There was no such issue in this case.

Interrogatories Nos. 3, 4 and 5 again display the manifest intent of defendant’s counsel to place too great an emphasis upon the duty of the plaintiff’s wife to look to the south. Any answers to these questions could not have in any manner affected the verdict rendered by the jury, and hence the refusal to submit such interrogatories could not have been prejudicial. It does not appear that the interrogatories were requested separately, and hence they must all stand or fall together.

We have not discovered, in an examination of the record, any error, and the judgment below will, therefore, be affirmed.

Smith and Swing, JJ., concur.


author: GORMAN, J.

text:
    OFFICE AND OFFICERS.
    [Hamilton (1st) Court of Appeals,
    May 8, 1916.]
    Jones, Jones and Gorman, JJ.
    State ex rel. Gerhard Fischer v. Philip Fosdick, Dir. P. S.
    Temporary Employee in Municipal Service in 1912 Incumbent until Failure to Qualify or Discharge for Cause.
    One who was given a temporary appointment to the municipal service during the year 1912 and prior to the furnishing of an eligible list by the civil service commission, was an incumbent at the time the civil service law of 1913 went into effect, and was entitled to hold his position until he failed to qualify therefor or was discharged for cause,

      Moulinicr, Bettman & Hunt, for relator.

      Charles A. Groom, City Sol., and Saul Zielonka, Asst. Sol., for defendant.
   GORMAN, J.

The relator, Gerhard Fischer, avers in his amended petition 1hat on May 16, 1912, the mayor of the city of Cincinnati, to prevent the stoppage of public business, appointed him temporarily to the position of machinist of the filtration plant of the subdepartment of waterworks in the city of Cincinnati; that he continuously occupied said position and performed the duties thereof up to and including November 9, 1914; that his occupancy of said position and the performance of the duties thereof were in accordance with and in pursuance of the orders of the director of public service of the city of Cincinnati duly issued and made in the course of the management by that director of said waterworks; that at the time he was appointed to said position the same was and has ever since been and is now in the classified service of said city; that no examination for said position, competitive or non-competitive, was ever held or given by the civil service commission of said city until September 11, 1914; that on said day a competitive examination was held for all the positions of machinists of the subdepartment of waterworks of said department of public service, such examination covering the said position occupied by the relator as well as many other positions of machinists in said waterworks; that the relator took and passed said competitive examination; that the civil service commission of the said city has never held or fixed any time for a non-competitive examination for relator of said position; that about November 6, 1914, an eligible list for the positions of machinists in said subdepartment of waterworks was made up by said civil service commission from the list of those who passed said examination; that on November 6, 1914, the said Philip Fosdick, then director of public service, issued and furnished relator with a copy of a pretended order of discharge to be effective November 9, 1914, containing as the exclusive and sole reason for the same the following: “for the reason he is a temporary appointee and civil service commission now has an eligible list; ’ ’ that the eligible list referred to is the eligible list produced as the result of said examination of September 11, 1914; that since November 9, 1914, said Fosdick as director of public service, and his successor, Charles F. Iiornberger, has refused to recognize relator as the occupant and incumbent of said position, and has refused to assign relator any work in said position or to permit him to do any work in said position, but has made an appointment of another person in place and stead of relator to perform the work of said position; that the director of public safety is the appointing officer of said position, and that at the time relator was laid off or discharged as aforesaid said director of public safety did not furnish relator with a copy of an order of discharge, lay-off, reduction or suspension, or with any reasons for the same except the above-named order and reasons of November 6, 1914. Relator prays that a writ of mandamus may issue ordering the director of public safety to recognize the relator as, from and after November 9, 1914, the incumbent and occupant of said position of machinist at the filtration plant at the waterworks.

To this amended petition of relator an answer was filed admitting most of the allegations of the petition; and admitting especially that the defendant, the director of public safety, issued and furnished relator with a copy of an order of discharge to be effective November 9, 1914, containing as the sole and exclusive reason for the same the following: “for the reason that he is a temporary appointee and civil service commission now has an eligible list,” the same reason set forth in relator’s petition. The defendant further says that relator on August 29, 1914, made application for competitive examination for the position of machinist in the division of waterworks of the department of public service, pursuant to the ordering of and advertising same by the civil service commission of the city; that said examination was conducted according to law; and that relator pursuant to his application for admission to said examination appeared and took the same and received an average of seventy-one per cent, and the rank of nineteenth on the eligible list, which was approved and posted September 25, 1914, as required by the statutes and rules of the civil service commission in such case made and provided; that on November 7, 1914, relator was served with personal written notice that he was discharged for the reason that he was a temporary appointee and the civil service commission then had an eligible list and that his discharge would be effective November 9, 1914, at five o’clock P. M., and. that he might make and file his explanation with the director of public service. Defendant further avers that the eligible list referred to in said order and reasons for discharge was the eligible list produced as a result of the examination held September 11,1914, at which relator competed. The defendant further avers that the relator has not made or filed any explana tion whatsoever. Defendant further avers in his answer that on November 6, 1914, a regular requisition to fill the vacancy in the position formerly held temporarily by relator was made by the director of public service as required by the statutes in such ease made and provided, and three names from said list having higher grades and averages than the relator certified by the civil service commission from the eligible list for the position formerly held temporarily by relator, and from said eligible list and certification of the civil service commission of three persons qualified therefor the said director of public service made an appointment to fill the vacancy on November 10, 1914, as required by the statutes in such case made and provided. The defendant further says that in March, 1912, the said civil service commission by a unanimous vote of the members of said commission in regular meeting adopted rules and regulations, among which, is rule 74, reading as follows:

“74. A temporary appointment to prevent the stoppage of public business or to meet extraordinary exigencies shall continue only until such time as the- commission can certify persons from an appropriate eligible list to fill the vacancy. ”

Defendant therefore prays that the petition and the amended petition be dismissed.

A demurrer has been filed to this answer for the reason that the allegations thereof are not sufficient in law to constitute a defease.

'V. demurrer was filed to the answer to the original petition, and came on to be heard before Judges Spence and Pollock while they were sitting as judges in this district. And upon arguments and presentation of the law those judges found that the demurrer searched the record, and that the petition was insufficient in law and therefore sustained a demurrer to the petition and gave relator leave to file an amended petition, which was accordingly done. In the amended petition 'relator has sought to meet some of the objections made by the visiting court in sustaining the demurrer to the petition.

The first question to be determined is whether or not Fischer was legally removed or separated from his position or appointment. At the time this temporary appointment was made in 1912 many places in the city service were not in the classified list. Under the provisions of Sec. 4488 G. C. as it existed when Fischer was appointed, there was no eligible list from which an appointment could be made because the civil service commission had not held an examination and furnished such a list, and under the section above cited the appointing power was authorized to make a temporary appointment.

In 1913 the civil service law was amended so as to bring within its protection very many persons who previous to the adoption of the law were not on the eligible list. Under the law of 1913 (103 O. L. 703), it was provided, among other things, in. Sec. 10, that:

‘ ‘ The incumbents of all offices and places in the competitive classified service, except those holding their positions under existing civil service laws, shall, whenever the commission shall require, and within twelve months after the rules adopted by the commission go into effect, be subject to non-competitive examinations as a condition of continuing in the service. Reasonable notice of all such non-competitive examinations shall be given in such manner as the commission may require, and all such non-competitive examinations shall conform in character to those of the competitive service.”

As has been stated, when Fischer was appointed there was no eligible list, and during the time he occupied the position down to September, 1914, the civil service commission had failed to conduct a non-competitive examination or to give him an opportunity to submit to such an examination. The question presented is whether or not he was an incumbent of his place at the time the civil service law of 1913 went into effect? Tie was entitled to hold his position until he had been given an opportunity to take a noncompetitive examination. It was not his fault that he did not take such examination but it was the fault, if any, of the civil service commission of the city.

We are of the opinion that the proper construction to be placed on Sec. 10, of the law of 1913, is that Fischer was an incumbent of the place he occupied at the time this law went into effect, and as such he was protected by the civil service law and entitled to hold his position until he failed by either a competitive or a non-competitive examination. In view of the fact that the character of the non-competitive examination shall be the same as that of the competitive examination, we see no reason why Fischer, when he passed the examination in 1914, although that was a competitive examination, should not be entitled to hold as though he had passed a non-competitive examination.

By the provisions of Sec. 17 of the civil service law of 1913:

“No person shall be discharged from the classified service * * * laid off, suspended or otherwise discriminated against by the appointing officer for religious or political reasons. In all cases of discharge, lay-off * * * or suspension * * * whether appointed for a definite term or otherwise, the appointing officer shall furnish the subordinate discharge, laid off * * * or suspended with a copy of the orders of discharge, lay-off f # * or suspension, and his reasons for the same, and give such subordinate a reasonable time in which to make and file an explanation.”

Under the civil service law of 1913, as we read it, there were two classes of incumbents: those who had been appointed under the civil service law theretofore existing, who had taken the examination or who had otherwise been appointed in conformity to the law; and those who had been appointed without an examination as temporary appointments. Section 10, of the law of 1913, requires all those persons who had been temporarily appointed, as a condition of their continuance in the service, to take a non-competitive examination which should be of the same character as a competitive examination; all those persons who were in classified service who had taken an examination under the civil service law as it existed prior to the law of 1913 were protected and not required to take another examination. There were two classes of incumbents — those who had been appointed without an examination, and those who held by virtue of an examination taken under a previous civil service law.

In our opinion, therefore, Fisher was entitled to hold his place until he failed to pass a competitive or non-competitive examination, or unless he was discharged for some cause or reason.

The Moores-Bames law was passed and became effective September 1, 1915, about ten months after the discharge of Fischer and after this suit was commenced. Under this law no person is entitled to hold his place unless he has submitted to and passed a competitive examination, or unless he had been in the public service for at least seven years. When this law went into effect Fischer could have been discharged, because it is admitted that he had not been in the service for seven years, nor had he passed successfully, as one of the three highest a competitive examination. But at the time Fischer was discharged or released from the service the Moores-Barnes law was not in effect and that law can not be invoked, in our opinion, to aid the defendant in his action in discharging Fischer.

It is claimed that by taking the competitive examination in 1914, Fischer waived his right to have the non-competitive examination. This court is of the opinion that Fischer did not waive his right to hold the position, by taking a competitive examination. A person who is in the service, and who has been duly appointed after taking a successful examination, may nevertheless take a competitive examination for any position in the city service without waiving his right to hold his place or position.

Non constat but Fischer when he took a competitive examination was anxious to learn whether or not he would be eligible to appointment to some other place or position than that which he held in the city service. He was given no option to take a noncompetitive examination or a competitive examination, and therefore we are unable to see how he waived any right when the option was not given him to take a noncompetitive examination.

Further, it is claimed that by failing to give an explanation after he was released from the public service he is not entitled to maintain this action. No explanation which Fischer could give would affect his case. He was not removed from the service or discharged because of any conduct on his part, but because of the construction placed on the law of 1913 by the director of public service was that Fischer was not an incumbent of the as an eligible list was furnished for the position which Fischer occupied he thereby automatically ceased to hold his temporary position, notwithstanding the fact that he had not been given an opportunity to take a noncompetitive examination. The construction placed upon the law of 1913 by the director of public service was that Fischer was not an incumbent of the office within the meaning of the law at the time the law of 1913 became effective. In this construction the court is not in accord with the director of public service. As has been stated above, we are of the opinion that he was an incumbent at the time the law of 1913 went into effect, and was entitled to the protection afforded him by that law.

The defendant further sets up the rule of the civil service commission passed in 1912, to the effect that temporary appointments shall continue until there is an eligible list. This rule was adopted under the civil service law as it existed prior to the taking effect of the law of 1913. The rules of the civil service commission eould only apply to the state of law as it existed when the rules were adopted, that is, the law in force prior to 1913. A rule of the civil service commission inconsistent with the law of 1913 must necessarily fall when that law became effective, and therefore the rule invoked by the defendant, • in force in 1912, could not aid the defendant in ousting the relator from his position because that rule was abrogated when the civil service law of 1913 went into effect making Fischer an incumbent-.

Counsel for defendant cited to us the case of Shalvoy v. Johnson, 84 N. J. Law 547 [87 Atl. 471], in support of his contention that Fischer was not an incumbent at the time the law of 1913 went into effect. We have read the case and the facts upon which the law of that case was enunciated, and we are unable to see how it applies to the case before us.

Upon a full consideration of the case, together with a consideration of the decision of Judges Spence and Pollock, this court has. reached the conclusion that the demurrer of the relator to the answer filed to the amended petition should be sustained, as the same does not present a defense.

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


text:
    CONTRACTS — MASTER AND SERVANT.
    [Hamilton (1st) Court of Appeals,
    December 20, 1915.]
    Jones, Jones and Gorman., JJ.
    Frank B. Stewart, Tr. v. Frank J. Rutterer.
    Judgment of Employer, not “Reasonable Men” Controls Construction of Phrase in Contract of Employment to Satisfaction of Employer.
    When a contract of employment provides that work contracted for shall be done to the satisfaction of the employer, he is at liberty, acting in good faith, to discharge the employee without regard to the question whether the discharge would appeal to reasonable men as justified. Highland Buggy Co. v. Parker, 27 O. C. C. 115 (5 N. S. 383), and Lake Erie & W. Ry. Co. v. Tierney, 29 O. iC. C. 83 (8 N. S. 521), affirmed without report, not followed.

      Stephens, Lincoln & Stephens, for plaintiff in error.

      Bolle, Tcutjlor, O’Donnell <& Geisler, for defendant in error.
   GORMAN, J.

The defendant in error, Frank J. Rntterer, sought to recover damages for a breach of contract entered into between himself and the plaintiff in error as trustee. A verdict was rendered in his favor, and the defendant below, plaintiff in error here, prosecutes error to reverse the judgment.

The action grew out of an agreement between the parties hereto, made January 21, 1911, which in substance recited that Rutterer was indebted to the Standard Hay & Grain Co. and the Winifrede Coal Co. in the aggregate sum of about $12,000 and that he was unable to pay said indebtedness; and in consideration of the forbearance of the creditors to bring suit to collect their claims he transferred all of his property to Frank B. Stewart, as trustee, for the purposes set out in the agreement, whieh were to continue and manage the business in which Rutterer was engaged, the feed and coal business, and to see if the debts of said business could be paid from the proceeds. Stewart was in the exclusive power to manage the business in such manner as he might see fit. It was further provided that in ease it developed that the business was being continued at a loss, the trustee was authorized to sell all of the property, collect the accounts, convert the assets into money, and pay Rutterer’s debts. There was also the following stipulation in the agreement :

“The party of the second part (Stewart) will employ the party of the first part (Rutterer) in connection with said business in any capacity except as common laborer, at a salary of $15 per week so long as his services are satisfactory. ’ ’

Upon the execution of the agreement S'tewart took charge of Rutterer’s business, employing Rutterer as manager, and he continued in such capacity for several months until on or about April 10, 1911, when Stewart wrote to Rutterer that he was not satisfied with his manner of conducting the business and had decided to employ one Zimmer as manager and give him full charge of the business. Mr. Rutterer was continued as a collector on the same wages until July 8, 1911, when he was discharged by Stewart.

The foregoing is a sufficient statement of the facts upon which the plaintiff bottomed his right to recover.

The sole question in the case to be determined by this court is, whether or not the trial court erred in refusing to give, certain special charges, and erred in his general charge to the jury upon the question of the construction to be given to the contract providing for the employment of Rutterer “so long as his services are satisfactory.”

The bill of exceptions is in the short narrative form and does not purport to contain all of the evidence, but there is sufficient in the bill to raise the questions of law upon which the rulings of this court are asked. Rutterer claimed that he was discharged without reason and arbitrarily, and the jury, under the charge, held with Rutterer.

In substance the following charge, in two or three different forms, was asked by the defendant to be given to the jury before argument:

“By the contract between them, the defendant agreed to employ the plaintiff only so long as his services were satisfactory to defendant, and if the defendant was not satisfied with such services in good faith, after a fair trial, then your verdict should be for the defendant.”

The court refused to give this charge, to which refusal counsel for defendant excepted.

The court in its general charge to the jury used the following language:

‘ ‘ The question, therefore, to be determined is, what is meant by the phrase in the contract ‘so long as his services are satisfactory.’ The law in-that matter is this: a person who enters into a contract of employment, which is to continue as long as it is satisfactory, can hold his position only so long as the party to whose satisfaction he is to work is satisfied, and that satisfaction, or rather the dissatisfaction of the party for whom he is to work, and in this case for Stewart, must be dissatisfaction which would warrant Stewart in terminating the contract. This dissatisfaction can not depend upon a whim or a mere caprice, or be arbitrary on the part of Stewart, but it must depend upon such facts as would warrant a reasonable person in the same position that Stewart was, under the same conditions and cir cumstances, in coming to the conclusion that the services of Rutterer were not satisfactory.
“Now that, gentlemen, is the test; would a reasonable person placed in the same position that Stewart was placed have come to the conclusion that Rutterer’s conduct, the work he was doing and the manner in which he was doing it, and all the surrounding circumstances of his employment, would such a person have come to the conclusion that his work was not satisfactory? If a reasonable person situated as Stewart was situated would have come to that conclusion, then Stewart was justified in discharging Rutterer. If a reasonable person would not have come to that conclusion upon all the facts that have been produced in evidence here before you, then he would not have been justified, and the plaintiff would be entitled to a verdict.”

Counsel for the defendant took a general exception to the charge of the court.

In refusing to give the special charge above set out, we think the court erred.

We are also of the opinion that the court erred in the language employed in the general charge wherein the court said:

“This dissatisfaction can not depend upon a whim or a mere caprice, or be arbitrary on the part of Stewart, but it must depend upon such facts as would warrant a reasonable person in the same position that Stewart was, under the same condition and circumstances, in coming to the conclusion that the services of Rutterer were not satisfactory.”

And again:

“Now that, gentlemen, is the test: would a reasonable person placed in the same position that Stewart was placed have come to the conclusion that Rutterer’s conduct, the work he was doing and the manner in which he was doing it, and all the surrounding circumstances of his employment, would such a person have come to the conclusion that his work was not satisfactory ? If a reasonable person situated as Stewart was situated would have come to that conclusion, then Stewart was justified in discharging Rutterer. If a reasonable person would not have come to that conclusion upon all the facts that have been produced in evidence here before you, then he would not have been justified, and the plaintiff would be entitled to a verdict.”

It appears from this that the trial court read into the contract a rule of reason. And the trial court justifies the language employed in this general charge and the refusal to give the special charge, as shown in Rutterer v. Stewart, (17 N. S. 173), upon the authority of two cases, Highland Buggy Co. v. Parker, 27 O. C. C. 115 (5 N. S. 383), and Lake Shore W. Ry. v. Tierney, 29 O. C. C. 83 (8 N. S. 521), affirmed, no op., 75 Ohio St. 565.

The case of Highland Buggy Co. v. Parker, decided by the predecessor of this court, was an action to recover damages for the wrongful discharge of an agent of the company. In deciding the case the court, on page 385, uses this language, with reference to the contract of Parker:

“The dissatisfaction which would warrant the company in treminating the contract could not depend upon mere whim or caprice, but upon such facts as would warrant a reasonable person in the conclusion that the services of the salesman were not promoting, either directly or indirectly, the interests of his employer, provided always that the. latter acted in good faith and performed his paid of the contract.”

The contract under consideration, in that case contained a provision among other things, that Parker would give his entire time and attention to selling vehicles of the Highland Buggy Company at prices furnished him. from time to time, and would promote the interests of the Highland Buggy Company, all to its satisfaction.

The case of Lake Shore & W. Ry. v. Tierney, supra, was a case in which ‘William Tierney had been an employe of the railway company, had received injuries and brought suit to recover for same. "While that "case was pending he entered into a compromise agreement in writing with the railway company whereby the railroad company, among other things, agreed to employ Tierney in consideration for Tierney’s dismissing his action, and that said company was to employ him so long as his services were satisfactory. The company discharged him, and he brought an action to recover damages for the wrongful discharge. The circuit court of Allen county, passing upon the case was called upon to determine the correctness of a charge asked to be given to the jury on behalf of the company and held' as follows:

“The court was asked to charge the jury that the company was to be the sole judge of the services rendered, and, if in good faith -it decided that his services were unsatisfactory it had the right to discharge the plaintiff at any time. ’ ’

The court said:

“This does net fairly state the case. The defendant may have been dissatisfied and may have thought that it had reason for dissatisfaction, and may have acted in good faith and so discharged plaintiff, and yet it may have been requiring unreasonable things; it may have been misinformed as to his conduct and so may have beeome dissatisfied without good cause, yet in perfect good faith. This contract should not be construed from one side alone, and the court properly refused to do so in this respect. Each party had his rights and obligations. The obligations, as well as rights of each must be considered. The charge as requested did not in our judgment meet this test.”

The trial court in ease at bar also relied upon the statement contained in the decision of the Supremo Court in Ashley v.Henahan, 56 Ohio St. 559, 570 [47 N. E. 573], where this language was employed:

“He (plaintiff) might, however, as suggested above, on an averment supported by evidence that the architect had fraudulently' or unreasonably' refused his certificate, recover by showing a substantial performance of the work as required by the contract.” '* # *

There are other cases in this state which hold directly opposite" to the rule laid down in the two circuit court decisions above cited.

In the case of Crigler v. Blair, 2 Circ. Dec. 573 (4 R. 324), the circuit court, the predecessor of this court, speaking through Cox, Swing and Smith, held that where there was to be an exchange of property provided, “a satisfactory title and abstract be furnished,” the person to whom such title and abstract was to be furnished was the sole judge of the satisfactory character of the same.

In the case of Karsner v. Union Central Life Ins. Co. 6 Circ. Dec. 335 (12 R. 394), where the decision was by the same court that decided the Tierney ease, it was held:

“Where the contract between an insurance company and one of its general agents for a fixed period of years provides, ‘That whenever the amount of new business done by the agent is, in the opinion of its officers, unremunerative; or, when the business of the company is not conducted in a manner satisfactory to the officers, they may cancel the contract’ * * it is for the officers alone to decide, if acting in good faith, when the condition arises for such cancellation. ’ ’

The general term of the superior court of Cincinnati in Elsas v. Meyer & Co. 21 Bull. 346 (10 Dec. Re. 518), held that the question of the reasonableness of the employer’s dissatisfaction was not involved in the case, but only the question as to whether or not he acted in good faith in the discharge.

The district court of this county, predecessor of the circuit court, in the case of Sargent v. Sibley, 11 Bull. 177 (6 Dec. Re. 1219), decided in an opinion by Avery, J., that where a contract for the sale of real estate provided that the title was to be satisfactory to the purchaser’s attorney, the opinion of such attorney was conclusive. The court say:

“As a general rule, where it is stipulated in a contract that what is to be done by one party shall be to the satisfaction of the other or of a third person, the decision of such other party or person is final.”

There have been a great number of eases in other jurisdictions upon this question, but the rule seems to be well laid down in Labatt, Master and Servant, 2d Ed. Sec. 198, pages 618-619:

“In one group the facts, that the performance of the contracts in question involved the gratification of the employer’s personal taste, is adverted to in terms which show more or less distinctly that this element was specifically treated as being the determinative element. But the courts did not use any language from which it can reasonably be inferred that they considered his judgment to be final only in cases where the contract is of this description.”

In Sec. 199] p. 630:

“The position taken in Ohio is that the dissatisfaction which will warrant a discharge must be a reasonable dissatisfaction, and not an arbitrary one, and that the good faith of the master in claiming the given services to be unsatisfactory will not render a discharge justifiable, if the services performed were such as ought to have been satisfactory to a reasonable employer. ’ ’ Citing Lake Erie & W. Ry. v. Tierney, 29 O. C. C. 83 (8 N. S. 521). This decision is obviously opposed to the general current of authority.”

We are of the opinion that this rule laid down in Lake Erie & W. Ry. v. Tierney, 29 O. C. C. 83 (8 N. S. 521), is clearly against the great weight of authority, and we are not disposed to follow the ruling in that case, nor the rule laid down in the Parker case, supra. We hold that where the contract provides, as did the one in the case at bar, that the work is to be done to the satisfaction of the employer, the employer has the right to discharge the employe, provided he acts in good faith, whether or not the cause for the discharge is such as would appeal to a reasonable man. If any effect is to be given to the provision of the contract which requires the employer or employe to be satisfied, it would appear that the one to be satisfied is the one to determine whether or not he is satisfied, and not the court or jury. The parties having made their contract, it is not the province of the court to unmake it or to malee a different contract by construing it to read that “satisfaction” or “dissatisfaction” should mean the “satisfaction, or dissatisfaction, of a reasonable person. ’1

We think the law of. Ohio upon this question should be in harmony with the law laid down in the great majority of the state and federal courts. We might cite numerous authorities to support the conclusion at which we have-arrived, hut we-deem it unnecessary. The authorities will, all be found collected in the notes under 1 Labatt, Master & Servant, 2nd Ed., Sees. 198-199.

For the reasons given, the judgment of the court of common pleas will he reversed, and the cause remanded for a new trial.

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


author: POWELL, J,

text:
    DEEDS — WILLS.
    [Richland (5th) Court of Appeals,
    January 29, 1917.]
    Powell, Houck and Shields, JJ.
    Edith Laver v. Martin Kreiter et al.
    Invalidity of Conveyance by Grandson before Title Had Accrued in Him.
    Where a will creates an estate for life in certain real estate in relator’s two sons in equal shares, an estate for life in the survivor of said two sons in the whole of said real estate, and at the death of such survivor an estate in fee simple in equal shares to the heirs of the body of each of said sons, and further provides that if, at the death of such survivor, the heirs of the body of either are deceased, the whole estate shall pass to the heirs of the body of either then surviving, no estate passes to the children of said two sons of the testator until the death of the survivor, and a deed by one of said children made prior to the death of the survivor of testator’s two sons passes no title to such real estate.

      Appeal.
    Philip Laver, a former resident of Richland county, died testate on the — day of November, 1898, seized of certain real estate in the petition described. Pie was survived by two sons, Philip J. Laver and George M. Laver, who were his next' of kin and heirs at law. Philip J. Laver died in 1908, leaving the plaintiff, Edith .Laver, his only child and sole heir at law, and George M. Laver died on November 5, 1915, leaving the defendant Harold A. Laver, his only child and heir at law.
    The action is in partition. The parties are the plaintiff, the defendant Harold A. Laver, and other defendants claiming title or right to the undivided half of said premises, or the proceeds of the same, through conveyances from said Harold A. Laver. The rights of the parties are based on the will of Philip Laver and the deed of said Harold A. Laver, of date December 2, 1912.
    There is no question as to the rights of the plaintiff, Edith Laver, it being conceded that she is entitled, on distribution, to onc-half of the proceeds of sale of said premises.
    All the questions presented for adjudication are raised on the construction of items two and three of the will of Philip Laver. Said items are as follows:
    “Item 2. I will and devise to my two sons, George hi. Laver and Philip J. Laver, the equal use and enjoyment of the rents and profits of my real estate during their natural lives, or during the natural life of the surviving one of them, in case of death and at the decease of the surviving one of them, to descend as hereinafter designated in item 3.
    “Item 3. At the decease of my said two sons George M. 1 aiver and Philip J. Laver, or the surviving one of them, I will and devise my real estate in item two referred to, to the heirs of the body of my said sons, namely, the children of my said son George M. Laver, the share to which he would be entitled, and to the children of my said son Philip J. Laver the share to which he would be entitled, if living, and if at the decease of the surviving one of my said sons, George M. and Philip Laver, the heirs of the body of either shall have deceased, then I devise to the heirs of either so surviving, their heirs or assigns, said real estate in fee simple.”
    It is contended on the part of Harold A. Laver that at the time he made his quit-claim deed to the defendant, Martin Kreiter, he had no interest in said real estate that he could alienate, his father being still alive; while it is contended on the part of Martin Kreiter, and those claiming under him, that Harold A. Laver was then vested with a fee simple title to the half of said real estate, subject, however, to defeasance in the event of his death before the death of his father, George M. Laver.

      H. T. Marnier and C. H. Workman, for plaintiff.

      Van 0. Cook, G. E. McBride and W. H. Gifford, for defendants.
   POWELL, J,

The facts out of which the controversy in this ease arises, and the controversy itself, are clearly presented in the above statement of facts, and while there.are other issues presented by the pleadings, they are subordinate to the question of the right and authority of Harold A. Laver to sell and convey the said real estate at the time he attempted to convey the same to Martin Kreiter. Items two and three of the will of Philip Laver create the following estates in said lands:

I. An estate for life in testator’s two sons, George M. and Philip J. Laver, in equal shares.

2. An estate for life in the survivor of said two sons, George M. and Philip J. Laver, in the whole of said real estate.

3. At the death of such survivor an estate in fee simple to the heirs of the bodies of said George M.- and Philip J. Laver, in equal shares to the heirs of the body of each of said sons.

4. If, at the death of such survivor, the heirs of the body of either are all deceased, the whole estate is given to the heirs of the body of either then surviving.

It will be noticed that the fee simple title from testator’s death until the death of his surviving son is not vested anywhere by the terms of the will. It therefore descended by operation of law to the heirs at law of the testator, viz., George M. and Philip J. Laver. It could not pass to Edith Laver or Harold A. Laver, as they were not heirs at law of the testator. It could only pass to them by the terms of the will itself. It did not so pass because the will fixes the death of the survivor of testator’s two sons as the date when the fee simple title should pass, and then not to Edith and Harold A. Laver, individually, but to the heirs of the bodies of George M. and Philip J. Laver, as a class. Edith and Harold A. meet the requirements of the will as to the class that should take said estate at the date fixed, viz., at the death of George M. Laver, which occurred on November 5, 1915.

Harold’s deed to Martin Kreiter was made December 2, 1912, nearly three years before any title whatever accrued to him under the will of Philip Laver.

"We are of the opinion that the deed of Harold A. Laver to the defendant Martin Kreiter did not convey to the grantee named in said deed any right or title to the real estate in controversy.

The estates created by the will of Philip Laver are in legal effect entailed estates, giving to the first takers an estate for life only, and to the issue of the first takers, or to the heirs of their bodies, an estate in fee simple.

A rule of construction for such cases is laid down in the cases of Dungan v. Kline, 81 Ohio St. 371 [90 N. E. 938]; Dart v. Dart, 7 Conn. 250, and Carter v. Grossnickle, 22 Dec. 680 (11 N. S. 465), affirmed without opinion, 88 Ohio St. 577.

Under these authorities Harold A. Laver had no interest in said lands that he could alienate. Neither is anything pleaded or shown by the testimony that would operate as an estoppel against him.

Kreiter having paid certain money for the benefit of Harold A. Laver, he ought, in equity, to have the same repaid to him, and this would be so ordered. The same decree may be entered in this court as was entered in the court of common pleas.

Judgment rendered in favor of defendant Harold A. Laver and against all other defendants, excepting as to the money ordered repaid to Martin Kreiter.

Houck and Shields, JJ., concur.