text:
    ERROR — RAILROADS.
    [Summit (8th) Circuit Court,
    April Term, 1909.]
    Henry, Marvin and Winch, JJ.
    Akron (City) v. H. H. Temple.
    1. Parol Evidence of Written Contract for Operating Trains over other Railroad Competent in Prosecution for Trains Occupying Crossings Over Time.
    The superintendent of a division of a railroad having testified in a prosecution for violation of an ordinance regulating the time a train may be permitted to stand across a street crossing, that his railroad had nothing to do with the operation of trains on the division where the crossing existed, it is error to refuse to consider his evidence to that effect when it subsequently develops in the trial that the traffic agreement with another railroad regulating control of trains at the place in question was in writing.
    2. Common Pleas Reviewing Conviction before Mayor Remands Case.
    Upon reversal by the common pleas of a judgment of conviction for violation of a municipal ordinance in a mayor’s court, the cause should be remanded to the mayor’s court for further proceedings, unless the ordinance in question is invalid, or no offense was charged in the affidavit.
    3. Municipality has Authority to Enact Ordinance Regulating Time Trains Occupy Crossings.
    A municipal corporation has authority to pass an ordinance regulating the time railroad trains may be permitted to stand across street crossings.
    Error.
   WINCH, J.

H. PI. Temple is the superintendent of the Newcastle division of the Baltimore & 0. By., extending from Newcastle, Pa., to and through Akron, Summit eounty, Ohio, to Chicago Junction, Ohio. He ivas arrested for violating an ordinance of the city of Akron which makes it a misdemeanor to permit a train of ears to stand or remain more than five minutes on any street or alley of said city where a railroad crosses such street or alley at grade, was tried by the mayor of said city and convicted. On error to the common pleas court said court reversed the judgment of the mayor’s court and discharged the accused. The case has been brought here on error for a review'- of said judgment of reversal. Of course, if there was any error in the trial of the accused, by the mayor, prejudicial to his rights, said judgment of reversal must be affirmed.

We think there urns at least one serious error committed by the mayor in his rulings on the admissibility of evidence.

J. T. Johnson, superintendent of the Cleveland division of the Baltimore & 0. By., was offered as a witness by the prosecution and upon cross-examination testified, over the objection of the prosecution, that the Baltimore & 0. By. had no supervision over the movement of trains upon that part of its Newcastle division which lies between Akron Junction and Warwick, including the tracks where the train had been permitted to stand, but that the Cleveland, A. & C. By. directed the movement of all trains over said portion of the tracks under an agreement between the turn railroad companies. Upon redirect examination it was brought out that the agreement referred to was in writing, whereupon the prosecution requested that the testimony of the witness relating to the movement of trains between Akron Junction and Warwick be disregarded, because the written document was the best evidence. This motion was granted and thereby the accused was prejudiced in his rights.

The question was, who actually had supervision of the trains at the point in question. Whether the right to supervision was dependent upon a written agreement or not, made no difference. It was for the prosecution to establish that Temple had control over the movement of the train complained of which blocked the street. Its own witness testified that he did not; it was immaterial that it subsequently developed that the reason he had no control at that point was because of a written agreement with some other railroad whereby the other road had said control. The question was what was done under contract, not what the terms of the contract might be. The accused offered competent evidence to prove that he had nothing to do directly or indirectly with the movement of the train in question at the time and place complained of. By the rejection of this evidence his rights were seriously prejudiced. Had this evidence been considered, no judgment against him could stand. For this reason, if for no other, the judgment of the mayor was properly reversed.

But upon reversal of the cause, the common pleas court should have remanded the ease to the mayor’s court for further proceedings, unless it was found that the ordinance was invalid or no offense was charged in the affidavit. Upon this point we hold that a municipal corporation has authority to pass ordinances upon the subject in question by virtue of See. 1536-131 R. S. (Sec. 3714 G-. C.), which imposes upon the council of a municipality the care, supervision and control of public highways, streets, etc., within the corporation, with directions that it shall cause the same to be kept open and in repair and free from nuisance.

The ordinance ifi question not being set forth' in the bill of exceptions, we must assume that it conformed to the authority thus given and the affidavit we find charges an offense within the intendment of a valid ordinance upon the subject. It was error, therefore, to discharge the accused. The judgment of reversal is affirmed, but the order discharging the accused is reversed and the cause is remanded to the court of common pleas for further proceedings.

Henry and Marvin, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    EVIDENCE — NEGLIGENCE.
    [Summit (8th) Circuit Court,
    April Term, 1909.]
    Winch, Henry and Marvin, JJ.
    Kile Manufacturing Co. v. Joseph Peterson.
    Expert Opinion Evidence Inadmissible as to Defect in Machinery not Complicated.
    It is improper to permit an expert witness to give his opinion as to whether it was safe to operate an ordinary foot brake which had been worn smooth through use, so that the foot was apt to slip off of it, there being nothing complicated about the brake, and the question being the ultimate fact for the jury to find from all the evidence in the ease.
   WINCH, J.

Joseph Peterson was injured while in the service of the Kile Manufacturing Co., unloading logs from a car by means of a derrick. He sued the company for his damages thus sustained and recovered a judgment. The trial judge succinctly stated to the jury the specifications of negligence which Peterson must prove:

“First. That the defendant company negligently failed and neglected to provide a safe and approved style of brake and lever to control the movement and operation of the hoisting machine referred to in this action, commonly known as the foot brake — foot brake or lever.
“Second. That the foot brake or lever furnished and provided by the defendant company had been carelessly arid negligently allowed and permitted to become and remain smooth, slippery and ineffectual to safely control the movement and operation of said hoisting machine.
“Third. That the defendant company was careless and negligent in placing in control of said hoisting machine an unfit, unskilled and incompetent person for that purpose.”

There was no evidence introduced tending to prove that the style of brake used was not proper, but there was evidence tending to show that the brake had been permitted to become smooth, slippery and ineffectual to safely control the movement of the hoisting machine and that it was operated at the time of the accident by an incompetent person.

With these ultimate facts in mind, which the jury was to determine, was it proper to permit the witness, Flynn, who qualified as an expert, to testify as shown on page 112 of the bill of exceptions as follows :

“Q. Mr. Flynn, if that brake, that foot brake controlling the boom, up and down movement of the boom, when a log was on it or when off, was controlled by a foot brake at the time of the injury, the place where the foot went on, the part — the handle where the foot went on to control it was smooth and worn and not protected on the sides to prevent a slipping, would you say that that was a reasonably safe appliance in connection with which Mr. Peterson had to do his work out on the ear hooking these tongs into the logs?
“Objected to.
‘ ‘ The Court : Reasonably safe appliances for the operation of said hoisting machinery, that is what you mean.
“Objection overruled; defendant excepts.
“A. I could not say it was safe.
‘ ‘ Q. What would you say about it being unsafe ?
‘ ‘ The Court : The question was whether it was reasonably safe, that is the question, what is your answer?
“Objected to; objection overruled; defendant excepts.
“A. Anything but safe.”

This was one of the questions the judge finally submitted to the jury, and it would seem that it was improper to substitute the judgment of Flynn for that of the jury. There was nothing intricate or complicated about the machine. If the brake operated by the foot was smooth, the foot would likely slip off of it, particularly if operated by an incompetent man. If the foot slipped from the brake, an accident was likely to happen, because the hoisting machine would immediately lower the log. One does not need to be an expert to know this and the facts were all before the jury for it to draw its own conclusion as to whether the appliance was safe, in the condition and under the circumstances shown in evidence which resulted in Peterson’s injury.

The rule is well stated in the first two paragraphs of the syllabus of the ease of Ohio and Indiana Torpedo Co. v. Fishburn, 61 Ohio St. 608 [56 N. E. 457; 76 Am. St. 437], as follows:

“Opinion evidence may not be given where an opinion is asked as to the precise, ultimate fact in issue which is to be tried by the jury, but such testimony is not necessarily incompetent if it calls for an opinion as to a matter which is evidentiary only and merely tends to establish a fact which may be involved in the issue.
‘ ‘ Such evidence is not competent where the matter inquired about is one within the common knowledge of men of- ordinary information, and it is practicable to place before the jury all the primary facts upon which a conclusion is to be based, but where a witness is shown to be learned, skilled or experienced in a particular business, he may be asked to give an opinion as to pertinent matters which are not the subject of common knowledge, and as to which the jury is not so competent as is the witness to draw the proper conclusion from the general facts proven.”

See also the case of Baltimore & Ohio Ry. v. Schultz, 43 Ohio St. 270 [1 N. E. 324; 54 Am. Rep. 805], and cases there cited.

It is likely that the trial judge committed the error of permitting Flynn to answer the question complained of through inadvertance, for he ruled properly upon objection of defendant below to a similar question, as shown on page 108, and upon objection of plaintiff below to a like question, as shown on page 296, but the prejudice likely to result from such incompetent evidence was enhanced in this ease by the charge of the court upon the weight to be given the opinions of. experts, as found upon page 380:

‘ ‘ Certain witnesses have testified as to their opinions touching the operation of the hoisting machine and its different appliances. Such evidence is admissible and should be considered by the jury, together with all the other evidence in the case, giving such weight and credit thereto as in the fair and reasonable judgment of the jury it is justly entitled to. ’ ’

,We find no other errors in the record prejudicial to the rights of the plaintiff in error; the verdict does not seem excessive, or unwarranted by the evidence.

Judgment reversed for error in ruling on evidence.

Henry and Marvin, JJ., concur.


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    MASTER AND SERVANT.
    [Summit (8th) Circuit Court,
    April Term, 1909.]
    Winch, Henry and Marvin, JJ.

      Akron Selle Co. v. Herman Jost.
    1. Employer not Absolved from Negligence Liability by Letting of Job to Independent Contractor.
    An employer of labor can not absolve himself from liability for leaving a ditch on his premises unguarded, into which his employes are liable to fall and be injured, by showing that he let the contract for digging the ditch to an independent contractor.
    2 Terms of Verbal Contract for Jury and not to be Construed by Court. It is not for the court to construe the terms of a verbal contract but for the jury to determine what the terms of the contract are.
    Error.

       Affirmed, no op., Akron Selle Co. v. Jost, 85 Ohio St. 452.

   WINCH, J.

Jost recovered for damages received through the alleged negligence of the company in leaving a ditch unguarded upon its premises where he worked into which he fell and broke his leg. The company claimed Jost himself was careless and that, in any event, it was not liable because the ditch had been dug and left unguarded by an independent contractor, over whom it had no control, to whom it had let the work of building an addition to its factory.

The accident happened after dark as Jost stepped into the yard for the purpose of attending to a call of nature.

Without going into the evidence in the case, which we have carefully considered, we think the jury was justified in finding that Jost was not guilty of contributory negligence.

Conceding that the work was being done by an independent contractor and that the company retained no control over the doing of the work, stiill we think this can not avail as a defense under the circumstances of this case. One can not dig a pit upon his own premises where he knows his employes are accustomed to go and liable to injury and thus be free from blame; neither can he hire somebody else to dig it and thus absolve himself from liability. The rule in Ohio is well stated as follows:

“If the necessary or probable effect of the performance of the work would be to create a nuisance or to injure or expose third person to danger, unless the work is carefully guarded, then the defendant is not relieved from liability because the work is done by a contractor over whom the defendant has no control in the manner and mode of doing it.” Ohio Southern Ry. v. Morey, 47 Ohio St. 207 [24 N. E. 269; 7 L. R. A. 701]; Covington & C. Bridge Co. v. Steinbrock, 61 Ohio St. 215 [55 N. E. 618; 76 Am. St. 375]; Hawver v. Whalen, 49 Ohio St. 69 [29 N. E. 1049; 14 L. R. A. 828].

This rule the trial judge gave to the jury and is warrant for plaintiff’s request to charge, which was given, and the fault with the company’s sixth request to charge is that it ignored the fact that the performance of this work, under the circumstances shown by the evidence, exposed Jost to danger.

The company’s fourth request to charge was also properly refused because it made the fact that the company had provided a urinal at a distant part of the shop an absolute defense if its employe happened to fall into an unguarded ditch somewhere else on its premises when going to some other place to relieve himself. On this point it may be said that it was shown in evidence that the company had knowledge that its employes were accustomed to use the place Jost was going to, for that purpose, and no knowledge of any rule against it was brought home to Jost.

The proposition that it was for the court to construe the verbal contract under which the independent contractor was working, is untenable. It was for the jury to determine what the terms of the contract were. How could the court construe the contract before the jury had determined its terms.

Having examined all the allegations of. error and finding none well taken, the judgment is affirmed.

Henry and Marvin, JJ., concur.


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    ERROR — VERDICT.
    [Summit (8th) Circuit Court,
    April Term, 1909.]
    Winch, Henry and Marvin, JJ.
    Jacob Nobil v. Baltimore & O. Ry.
    Judgment Notwithstanding Verdict Held Error where Facts not Conceded.
    It is error to enter judgment for the defendant, notwithstanding, the verdict against him, although his defense is established by his own witnesses and they are not contradicted by the plaintiff. The jury may not believe the defendant’s witnesses. It is only upon the conceded facts of the case that a verdict may be directed or a judgment rendered notwithstanding the verdict.
   WINCH, J.

A proper determination of the question here involved requires a consideration of the pleadings, so as to locate the burden of proof.

The case was tried upon the amended petition, the answer to it and the reply to the latter. Said amended petition is as follows:

“Defendant is a corporation created by and under the laws of the state of Maryland.
‘ ‘ On the 9th day of March, 1907, defendant was a common carrier of goods for hire from the city of Portsmouth, Ohio, to the city of Akron, Ohio, and on said date, in consideration of the freight charges fixed by defendant, and which have been paid by plaintiff to defendant, defendant agreed to carry safely for plaintiff, from Portsmouth, Ohio, and to deliver to plaintiff at the city of Akron, Ohio, and plaintiff then and there delivered to the defendant, for that purpose, — 40 cases of shoes, of the value of fifteen hundred and eighty-three and 86-100 ($1,583.86) dollars.
“A copy of said agreement is hereto attached and marked Exhibit A.
“But defendant did not safely carry and deliver said goods, but failed so to do, and permitted thirty-eight eases of said shoes to become water soaked, while in the possession of defendant for transportation, as aforesaid. Whereby said thirty-eight cases of shoes were wholly lost to plaintiff, to his damage in the sum of fifteen hundred and fifty-four and 46-100 ($1,554.46) dollars, with interest from the 29th day of March, 1907, for which amount plaintiff asks judgment. ’'

The amended answer, admitting the contract of carriage and receipt of the goods, sets forth the bill of lading in full, from which it appears that it was stipulated that the company should not be liable for any loss or damage to the goods shipped by causes beyond its control, or by floods, or fire, etc.

Then follows an allegation that the injury, damage or loss if any, resulting to said eases of shoes, was wholly due to floods and to causes beyond the defendant’s control, and a denial of all other allegations in the amended petition.

The reply admits that the contract of carriage was as set forth in said amended answer.

In this state of the pleadings it was necessary for the plaintiff to prove the value of the goods shipped and the damage resulting by reason of their having been watersoaked.

The burden was upon the defendant to prove that the loss occurred without its fault. Graham & Co. v. Davis & Co., 40 Ohio St. 362; Union Express Co. v. Graham, 26 Ohio St. 595; United States Express Co. v. Buckman, 28 Ohio St. 144.

The plaintiff introduced evidence tending to sustain the burden upon it, and rested. Thereupon the defendant moved for judgment, which was properly denied, for it had not yet exonerated itself, as required by the authorities cited.

The defendant introduced.evidence tending to show that the goods were damaged by an unusual flood without any fault on its part. The plaintiff failed to introduce any countervailing evidence on this subject, whereupon the defendant renewed its motion for judgment and the same was overruled.

This was right. It would be like a plaintiff requesting a directed verdict where the defendant introduces no contradictory evidence. The jury is still to determine the credibility of the witnesses and may disbelieve any and all of them. ¥e have repeatedly held that a plaintiff, upon whom is the burden of proof, is not entitled to a verdict directed in his favor, unless his claim is conclusively determined in his favor by an admission of the defendant in his pleadings or upon the trial. In this case the burden was upon the defendant and the same rule must be applied.

The case being submitted to the jury, it brought in a verdict for the plaintiff, whereupon the defendant filed a motion for judgment in its favor, notwithstanding the verdict, upon the ground that on the undisputed facts appearing of record the plaintiff was not entitled to recover.

It also filed a motion for a new trial alleging the usual grounds therefor.

The court granted the motion for judgment and overruled the motion for a new trial.

This was the proper practice, if the defendant was entitled to judgment, but holding the views already expressed on that subject, we think the trial judge erred in granting said motion.

What we should have done with the motion for a new trial we can not say, for there is no cross-petition in error.

The decision of the Supreme Court in the case of Cincinnati Gas & Electric Co. v. Archdeacon, 80 Ohio St. 1 [88 N. E. 125; 23 L. R. A. (N. S.) 910n; 135 Am. St. 735], must be applied according to the rule laid down in the third paragraph of the syllabus. What is said in explanation thereof by Judge Shauck on page 5, does not justify the judgment in this case. He speaks of the failure of the party upon whom the burden of proof rests to offer substantial evidence in favor of all the allegations which the issues require him to support. Here the burden was upon the defendant. Nor was there concurrent testimony of all the witnesses. Plaintiff’s witnesses did not concur with defendant’s witnesses on the subject of the flood. They were silent on the subject and the burden was on the defendant.

The judgment is reversed and cause remanded for further proceedings.

Henry and Marvin, JJ., concur.


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    EXECUTORS AND ADMINISTRATORS.
    [Summit (8th) Circuit Court,
    April Term, 1909.]
    Winch, Henry and Marvin, JJ.

      H. H. Henry, Ex. v. Dayton A. Doyle et al.
    Suit on Administrator’s Bond, by Distributee until Amount Due First be Liquidated.
    A suit can not be brought on an administrator’s bond by a widow to recover her share of the personal estate of her deceased husband, until her claim has been liquidated in either the probate or common pleas court, pursuant to Sections 6195 to 6200 R. S. (Secs. 10848 to 10855 G. C.)
    Error.

       Affirmed, Henry v. Doyle, 82 Ohio St. 113.

   WINCH, J.

The sole question presented by the record in this case is whether a suit on the administrator’s bond, by a widow, to recover her share of the personal estate of her deceased husband, may be brought by her under the favor of Sec. 6221 R. S. (Sec. 10870 G. C.), after the probate court has ordered the estate to be distributed according to law, as provided in Sec. 6187 (Sec. 10834 G. C.), or whether she must first have her claim liquidated in either the probate or common, pleas court pursuant to. Secs. 6195 to 6200 R. S. (Secs. 10848 to 10855 G. C.) The precise question here involved does not appear to have been adjudicated by the Supreme Court. Roekel, Probate Practice, 266, 267, states that the latter course is necessary; Bates and "Whittaker entertain a contrary view. We think Roekel is right. The question is so fully discussed in briefs of counsel that further statement is unnecessary. The common pleas court having come to a like conclusion, its judgment is affirmed.

Henry and Marvin, JJ., concur.


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    OFFICE AND OFFICERS.
    [Cuyahoga (8th) Circuit Court,
    May 10, 1909.]
    Winch, Henry and Marvin, JJ.
    State ex rel George Billington v. Bud M. Merril.
    Removal from Office for Frivolous Cause.
    Council of a municipality can not remove one of its members from office on the ground that he has married a wife in another place, outside of the municipality, who continues to reside there.

      Fred Desberg, for plaintiff.

      Cook, McGowom & Foote, for defendant.
   WINCH, J.

The relator was the duly elected councilman of the village of Collinwood. On February 15, 1909, he was ousted from his office by the village council, and the defendant was elected in his place on March 8, 1909.

The resolution ousting the plaintiff -was as follows:

“Whereas, the law provides that the council shall be the judge of the -qualifications of 'its members, and whereas, George W. Billington has ceased to possess the qualifications of a member of the council, as prescribed by law in Sec. 120 of the municipal code of 1902, having removed from the municipality, and not having resided in Collinwood for a period of six or seven months last past, having acquired a legal residence elsewhere, to-wit, in Geneva, Ashtabula county, Ohio, by his marriage to a resident of Geneva who has continued to reside there, under the rule of law as embodied in. Sec. 2946 R. S.. (now See. 4866 G. C.), that ‘the place where the family of a married man resides shall be considered and held as his place of residence, ’ and
“Whereas, said Sec. 120 of the municipal code provides that any member of the council who shall cease to possess any of the qualifications therein required or shall remove from the municipality shall forthwith forfeit his office, now, therefore,
“Be it Resolved, by the council of the village of Collinwood, state of Ohio, that it is hereby found and determined that said George W. Billington has forfeited his office, and that the office of said George W. Billington as a member of the council of the village of Collinwood, be and the same is hereby declared vacant. ’ ’

This resolution means that because of Billington’s marriage to a resident of Geneva, Ohio, who has continued to reside there, he has become a nonresident of the village of Collinwood and therefore he has removed from said village.

The resolution is frivolous, and the reasons assigned for removing Billington are not reasons which can be sustained at law.

The conclusion drawn from the fact stated in the resolutions is not a correct conclusion either in law or good common sense, and because the resolution itself shows that the council acted unlawfully in attempting to remove the relator for a reason not assigned by statute for the removal of a councilman from office, the action of the council is set aside. We have not considered the question as to the right which the council itself has to judge of the election and qualification of its members or whether its action in that regard can be reviewed by the court; we have not been required to go into that matter, for the resolution on its face shows that relator was removed for a reason not given in the statute.

The judgment of ouster is therefore granted, as prayed for, and the relator inducted into the office to which he was elected.

Henry and Marvin, JJ., concur.


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    EQUITY.
    [Cuyahoga (8th) Circuit Court,
    March 28, 1905.]
    Henry, Marvin and Winch, JJ.
    Wm. A. Eckerman et al v. Peter H. Hensch et al.
    Equity Jurisdiction may not be Invoked where there is Another Adequate Remedy.
    When plaintiff and defendant make a contract, whereby defendant, who is the owner of a secret process or formula, sells the plaintiff a two-thirds interest in the formula, deposits the formula in escrow, and agrees that upon the formation of corporation to manufacture goods by that process the formula is to be delivered to the secretary of the corporation, upon the abandonment of his contract by the defendant the plaintiff is not entitled to equitable relief and the appointment of a receiver to secure the formula, as that may be done by perfecting the corporation as provided in the contract.

      Appeal and Error.

      T. A. Closse and Weed & Miller, for plaintiff in error.

      Goulder, Holding & Masten and Henderson, Quail & 8id-da,ll, for defendants in error.
   WINCH, J.

The contention of the parties is before this court both on appeal from and error to the common pleas court. Of course, if the appeal is well taken, the judgment of the common pleas court is thereby vacated, and the proceedings in error should be dismissed.

We hold that this action is cognizable in equity and the error case is therefore dismissed.

It appears from the petition that the defendants, Peter H. Hensch and Annie Hensch, were the owners of a formula or secret process for the manufacture of a certain food product, and engaged in its manufacture and sale, and on October 14, 1903, entered into an agreement with the plaintiffs whereby said defendants conveyed to plaintiffs a two-thirds undivided interest in said formula and the good will of the business of making and vending said food product. The contract provided that said plaintiffs should advance the sum of $1,000 to be used in continuing the business for six months and should have the option, on or before the termination of said six months, of incorporating a company with an appropriate capital stock, to which corporation all parties to the contract agreed to convey their interest in the business and said formula, in exchange for sixty per cent, of the stock of said corporation; said sixty per cent, of the stock to be divided one-third to said defendants and two-thirds to plaintiffs.

Plaintiffs further agreed that if said option was exercised by them and said corporation formed, the corporation should enter into a contract with said Hensch and his wife to employ the former for the term of his natural life at a weekly salary of fifteen dollars, and that' said Hensch should devote his entire time, attention and skill, exclusively, in the employ of said company, and in event of the death of said Peter H. Hensch, his wife Annie Hensch still living, she should enter the employ of said company at a salary to be agreed upon and devote her entire time and attention to its business.

The following provisions of the contract are also essential to a determination of this suit:

‘ ‘ To secure said assignments and benefits thereof to party of second part (plaintiffs) the said party of the first part (defendants) further agree to write out said formula, together with full directions for the making of said nourishing meal, and deposit the same in a sealed envelope with the Central Trust Company, trustee, said written formula and directions to be disposed of as hereinafter set forth.
“In the event of disability by death, or otherwise, or upon the refusal of either of said individuals herein designated as party of the first part to superintend the manufacture of said meal, or upon their failure to comply with the letter and spirit of said contract, then the formula and the directions for the manufacture of said nourishing meal shall be delivered to the secretary of said company.”

The petition alleges that the parties entered upon the prosecution of said business which they continued for about four and a half months, the plaintiffs advancing money as agreed; all parties to the contract subscribed and acknowledged articles of incorporation of a company as agreed, took the preliminary steps provided by law for the organization of said company and called upon said defendants to carry out their part of the contract, but on March 1, 1904, said defendants abandoned said contract and refused in any way to assist plaintiffs, or give their time to the manufacture of said nourishing meal.

The petition alleges that the formula was written out by defendants and deposited with full directions in a sealed envelope with the trust company.

Plaintiffs allege that by reason of the breach of said contract by defendants the plaintiffs .have been put to expense and a large loss of time, whereby they have been damaged in the sum of $1,000.

No personal judgment is asked for these damages, but the petition prays for the appointment of a receiver to take charge of the assets and good-will of the business with authority to take possession of said formula and to run the business; that an accounting be bad and that said property and good-will be sold and the proceeds distributed in accordance with law; that said defendants be enjoined from making and vending said nourishing meal and from using the trade name thereof, and for such other and further relief as may be just and proper.

An answer filed by the Henschs, admitting the material allegations of the petition, denies that plaintiffs suffered any damages by reason of defendant’s breach of contract. It sets up title to said formula in a third person — whom they ask to be made party defendant — whereby they are unable to perform the stipulations of the contract, and further pleads that said contract is null and void, being contrary to public policy.

Upon the trial objection was made to the introduction of any evidence under the petition, but evidence was received, a ruling upon said objection being reserved.

In the argument counsel for plaintiff urged that the court has jurisdiction, under the petition, to determine the amount of plaintiffs’ damages resulting from the breach of the contract and to order a sale of said Chadwickian security on deposit with the trust company to satisfy said damages; that the action is in effect for the foreclosure of an equitable lien which it is claimed plaintiffs have upon said so-called security.

"We think a careful reading of the contract shows that no such relief can be granted under the allegations of the petition, for the contract itself provides the remedy upon the refusal of Henseh to render the personal services he contracted to render.

The contract specifically provides that upon such failure 1 ‘ the formula and directions for the manufacture of said nourishing meal shall be delivered to the secretary of said company.” At the time of the breach the company was incorporated; by the terms of the contract plaintiffs were then the owners of a two-thirds interest in the formula and business, and, by reason of the promise in the contract for the benefit of the corporation, the latter was the equitable owner of the entire formula and business. Plaintiffs should have gone ahead with the corporation, issued sixty per cent, of said stock in payment for said formula and business, forty per cent, belonging to themselves, elected a secretary and had the secretary demand the delivery to him of the sealed envelope by the trust company. ■

The action of said defendants in nowise interfered with or delayed the complete organization of the company; only ten per cent, of the stock is required to be subscribed, and plaintiff’s share in the business paid for that four times over. Ten per cent, being subscribed and paid in, plaintiffs were in position to elect a secretary of the corporation, under the law, and demand the sealed envelope of the trust company, and it was the duty of plaintiffs to proceed as stipulated in the contract.

Taking this view of the ease, it follows that plaintiffs have misconceived their remedy and the demurrer to the evidence should have been sustained. Without considering other objections to the petition urged by counsel for defendant, the petition is dismissed.

Henry and Marvin, JJ., concur.


text:
    TRUSTS AND TRUSTEES.
    [Cuyahoga (8th) Circuit Court,
    March 28, 1905.]
    Henry, Marvin and Winch, JJ.
    Benjamin S. Cogswell v. Elenor H. Seymour.
    Cestui may not Claim Trust Property Sold to Third Parties without Notice of Terms of Trust.
    When one receives a deed to certain real estate “in trust,” without any explanations in the deed itself as to terms and conditions of the trust, and later sells and conveys the property to a third person, those who claim to have been the beneficiaries of the trust have no interest in the property in the absence of any evidence showing that the purchasers had knowledge of the terms of the trust or that the trustee failed to account for the proceeds.
    Appeals.

      A. A. Steams, for plaintiff.

      Squire, Sanders & Dempsey, for defendant.
   WINCH, J.

These two cases are separate appeals by different parties from the same judgment of. the common pleas court.

A consideration of the case requires the investigation of a very involved title to certain real estate known as block YY in the Buffalo Company’s purchases, so-called, formerly in Ohio City, but now in Cleveland.

An 'exhaustive and carefully prepared opinion was announced by the learned judge who first tried the case in the common pleas court, but as we reach the same results he did, it is unnecessary to do more than give our reasons, why we think his conclusions are correct.

The defendant Seymour claims title to the whole of said block under a deed executed and delivered to one Richards pursuant to an order of the common pleas of Cuyahoga county issued in a proceeding for the foreclosure of a second mortgage upon said premises, to which certain first mortgagees of undivided interest therein were not made parties.

The report of said sale is that the land was sold to said Richards ‘ ‘ in trust ’ ’ and by virtue of the trust so created the plaintiff, Cogswell, claims am equitable interest in said land.

It appears that Richards, one Benjamin F. Tyler and some six others were plaintiffs in said foreclosure proceeding said Tyler having been the owner of a one-ninth interest in said land before it was deeded to the mortgagee, Francis G-. Macey, and of the purchase money mortgage given by the mortgagor and foreclosed in the proceeding mentioned, and was therefore entitled to a one-ninth interest in the proceeds of said mortgage. Evidence was introduced tending to establish the fact that when Richards bid in the property he was acting for the benefit of all the mortgagees, including Tyler, and by taking title to himself in trust, became trustee for Tyler for said one-ninth interest in the land. Said Tyler interest, by virtue of certain proceedings shown in evidence, finally became the property of the plaintiff. But the terms of the trust upon which Richards held title for the benefit of his comortgagee, were not disclosed by the evidence introduced at the trial. The most reasonable supposition as to said terms, and the one indulged in by counsel for all parties to the case is that Biehards took title to said land for the purpose of holding it until he could make an advantageous sale of the premises and then to account for the proceeds thereof to his comortgagees. He did sell the premises to Seymour’s predecessor in title, but there is no evidence showing that he failed to account for the proceeds of his sale, or that the purchaser knew of the terms of the trust upon which he held title.

For the reasons stated by Judge Lawrence of the common pleas court it'is apparent that plaintiff has failed to prove that he is entitled to an equitable interest in the premises.

Plaintiff’s assertion of a legal interest in the land need not be considered at any length. We think that by virtue of said Benjamin F. Tyler being a party plaintiff to the foreclosure suit mentioned, all rights that he had in the land became merged in the decree rendered in said ease and passed to the purchaser at the sale therein ordered.

The only claim of the defendant Bussell entitled to consideration is that derived from a sale ordered in certain proceedings brought by one Charles M. Giddings for the foreclosure of a mortgage given him by one Pratt and John B. Macey on a two-twelfths undivided interest in said block YY and a large amount of other property. This mortgage was, prior to the Francis G. Macey mortgage on the whole of block YY, foreclosed as above mentioned, and after Giddings brought his suit certain partition proceedings having been had among the Giddings’ mortgagors and Pratt’s interest having passed to one Gilman Folsom, Jr., and the Frances G. Macey mortgage being in decree which ordered the sale of the whole of block YY, Giddings filed an amended bill, making Biehards and all others in interest parties thereto and therein asked for the sale of the lots aparted and conveyed in severalty to said Gilman Folsom, Jr., and also the lots aparted and conveyed to said John B. Macey, together with the two-ninths interest in common belonging to said Folsom and John B. Macey in certain other lots not partitioned, showing that their original twelfths interest had become ninths, and the two-ninths interest of said Folsom and J. B. Macey in the Francis G. Macey mortgage and decree of block YY. It will be noticed that this amended bill did not ask for the sale of two-ninths undivided interest in block YY, but only of a two-ninths interest in the Francis G. Macey mortgage on the whole of said lot, and in the decree foreclosing said mortgage and the proceeds thereof. Doubtless Giddings anticipated that two-ninths of the proceeds of the sale of an undivided interest in said block would pay his claim. At any rate, he completely abandoned the prayer of his original bill, and by his amended bill clearly indicated that he desired to be subrogated from his claim on the two-ninths interest in the fee of block YY to said two-ninths interest in the Francis G. Macey mortgage and decree. His notice to Richards and other parties brought into the suit by publication, also indicates this intention.

But the final decree rendered in this case is so indefinitely woi’ded that it it not remarkable that many years afterward the defendant Russell sets up a claim that by the decree a sale was ordered not only of said interest in the mortgage and decree, but also of the fee itself. It is a fact that the officer making the sale reported a sale of both and attempted to deed both to Russell’s predecessor in title, but, after a careful study of this ambiguous order, a fair interpretation of the words of the decree themselves leads to the conclusion that the court intended to order a sale of the mortgage and decree and not a sale of the land itself.

In this conclusion we go farther than the court below, but every argument that court uses to show the invalidity of the decree, such as this decree is claimed to be by defendant Russell, leads alike to the conclusion, the language of the decree being doubtful, that the court ordering the sale of the mortgage and decree did not intend to order a sale of the land itself.

It may be added that by no interpretation of the pleadings could a ease be made out authorizing the sale of both the mortgage and decree and the land itself, and if, in reading it, we are to leave out any words, surely we should not leave out words which are intelligible only by a reference to the amended bill and go back for authority upon which to base the decree, to the original bill, the prayer of which was entirely abandoned when the new bill was filed and under which no substantial relief could ever have been granted, because of lack of parties defendant thereto.

Having arrived at this conclusion it follows that defendant Russell derives no legal title to any interest in said land by virtue of said official deed made in the proceedings referred to.

Should we be wrong in this conclusion, we think any such claim is barred by the statutes of limitation. At the date of the official deed to Russell, 1847, Richards was in possession of all the premises under his deed. It can not be said that he ceased to hold adversely and thereafter held as a joint tenant with Russell. There is no evidence to that effect and the presumption is against his voluntarily letting into the possession with him a person who certainly claimed adversely to him to the extent of a two-ninths undivided interest in the land. The petition in this case was not filed until 1872 and Richards received his deed and apparently went into possession in 1884, some twenty-eight years before.

As to the equitable interest in this land claimed by defendant Russell, the facts are similar to such claim by plaintiff, and for like reasons we hold against it. The petition of the plaintiff and the cross-petition of the defendant Russell are dismissed.

Henry and Marvin, JJ., concur.


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    EXECUTORS AND ADMINISTRATORS — TAXES.
    [Cuyahoga (8th) Circuit Court,
    May 29, 1905.]
    Henry, Marvin and Winch, JJ.

      Dorr E. Warner, Administrator, v. Alice S. M. York et al.
    1. Taxes on Real Estate Accruing after Death of Owner Held Debt of His Heirs.
    Taxes upon real estate accruing after the death of the owner are a personal debt of the heirs and when they have been paid by an administrator, he is entitled to retain the amount from funds in his hands belonging to the heirs.
    2. Administrator Who Has Paid Taxes may Recoup from Funds Belonging to Heirs.
    When an administrator is sued by the heirs of a decedent for rentals from real estate collected by him subsequent to the death of the decedent and it appears that the real estate in question has been sold by order of court and the administrator directed to pay the taxes thereon accrued after decedent’s death from the proceeds, he is entitled to set off the amount of such payment against the claim of the heirs for the rentals of the real estate collected by him.
    Error.

      Carr, Stearns & CTiamiberlcdn, for plaintiff in error.

      Wm. M. Reynolds, for defendant in error.

       Affirmed, no op., York v. Warner, 75 Ohio St. 595.

   WINCH, J.

Plaintiff in error was defendant below, and complains of a judgment rendered against him in the common pleas court for some $400 and interest, which it appears he collected as rent of property formerly belonging to his decedent, but accruing after the death of his intestate.

Defendants in error, plaintiffs below, as heirs of said intestate, claimed that said rents belonged to them.

Plaintiff below answered, admitting that said rents came into his hands as claimed, but pleaded, as an off-set, that subsequently it became necessary for him as administrator as aforesaid, to begin proceedings for the sale of said real estate for the payment of his decedent’s debts; that he obtained judgment therefor and an order of sale directing him, among other things, from the proceeds of sale to pay the taxes, which were a lien upon said premises; that he complied with said order and so paid said taxes, thus expending about $2,000 in the payment of said taxes which accrued on said premises after the death of said intestate and while the same were owned by said heirs.

The ease was tried upon an agreed statement of facts and we are of the opinion that the court erred in not allowing the administrator’s claim for taxes paid by him, as an offset.

That said taxes, accruing against the land after the heirs became the owners thereof, were a personal debt of said heirs, we think is settled by the case of Creps v. Baird, 3 Ohio St. 277.

The administrator was compelled by said order of court, to pay said personal debt of said heirs and said order was lawful. Sec. 2854 R. S. (Secs. 5690 G. C. et seq.)

It seems that being so compelled to pay the debt of others, he should be allowed to recoup himself out of money belonging to them which he had in his hands at the time of such payment.

This view of the case requires a reversal of the judgment rendered by the common pleas court.

It may also be suggested that the administrator having recovered a judgment in the probate court, for the sale of said lands, from the date of said judgment had a judgment lien upon the premises. Having such lien, he paid said taxes. Section 2853 R. S. (Sec. 5689 G-. C.), provides that any person having a lien upon real estate may pay the taxes thereon, in so far as the same are a lien upon such real estate and recover the money so paid by action for money paid to his use, against the person, or persons legally liable for the payment of such taxes.

While we do not base our decision upon said statute, considering the reason first given sufficient, we think that the policy of the law clearly requires a reversal of the judgment, which is ordered, and the case is remanded for further proceedings.

Henry and Marvin, JJ., concur.


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    SPECIAL LAWS.
    [Cuyahoga (8th) Circuit Court,
    October 27, 1905.]
    Henry, Marvin and .Winch, JJ.
    Wm. F. Betz et al. v. John I. Nunn, Treas.
    Proceedings Under Unconstitutional Special Law not Invalid if Conformable to General Statute.
    Proceedings under laws of general nature which are made to apply only to a certain locality are not invalid when laws applying to the whole state contain the same provisions as the laws in question.

      M. W. Cope, for plaintiff.

      G. W. Stage, for defendant.
   WINCH, J.

'Plaintiffs are the owners of real estate in what is known as sewer district No. 24 in the city of Cleveland, and brought their action against the treasurer of Cuyahoga county to restrain him from collecting an assessment of five mills on the dollar on their said property, for sewer district purposes.

The case was heard on appeal and the only reasons urged as ground for the relief prayed for are that said sewer district 24 was created in November, 1901, under an unconstitutional statute, and the assessment or levy was made in April, 1902, under a like unconstitutional statute. The two laws referred to are Sec. 2406 E. S., sub-sections 1 to 36 inclusive, referring to the creation of sewer districts and taxation for sewer purposes, and See. 2689a E. S., limiting levy for sewer district purposes to five mills on the dollar. Both these acts refer specially to Cleveland and are said to be in contravention of Art. 2, Sec. 26, of the constitution, by reason of the fact, it being claimed that they are laws affecting matters of a general nature which should have uniform operation throughout the state.

We find it unnecessary to pass upon the constitutionality of these special acts, even conceding that they might be viewed as unconstitutional in the light of more recent decisions of the Supreme Court.

The former act, Sec. 2406, sub-sections 1 to 36, was before the Supreme Court in the case of Hayes & Sons v. Cleveland, 55 Ohio St. 117 [44 N. E. 518], in 1896, and not then held unconstitutional.

This act was passed April 16, 1883, and is entitled “An Act to provide for the construction and repair of sewers in cities of the second grade of the first class” (80 O. L. 143). Its provisions apply to no other city than Cleveland.

Sections 1 and 5 of this act provide that the board of improvements in Cleveland shall devise a plan of sewerage and divide the city into sewer districts. These two sections are identical with general laws then in force, applying to all cities and villages, and then known as Sees. 2366 and 2370 E. S. (See Secs. 3871 G. C. et seq.), originally Secs. 602 and 603 of the old municipal code, found in 66 O. L. 251, which were not repealed by the special law for Cleveland, unless it be by the implication that the later special law superseded the old law.

Under a familiar rule of construction applied in the case of Shoemaker v. Cincinnati, 68 Ohio St. 603 and 609 [68 N. E. 1], if this special law for Cleveland is unconstitutional, its enacting clause is unconstitutional and leaves the old law in force for Cleveland, with authority under the general law in the council of the city of Cleveland to create Sewer District No. 24 in the manner stated in the petition.

So, too, as to the second law complained of, Section 2698a, as amended May 10, 1902 (95 O. L. 508), it is said that this act provides for the levying of an assessment of five mills on the dollar for sewer purposes within the city of Cleveland, and is unconstitutional not only because in contravention of Art. 2, Sec. 26, already referred to, but because it is contrary to the provisions of Art. 12, Sec. 2, which provides that laws shall be passed, taxing by uniform rule, all real and personal property.

We do not find that authority for the levying of the tax or assessment here complained of in the section just referred to. The only part of that section applicable to this case reads as follows:

“The aggregate of all taxes levied or ordered * * * shall not exceed in any one year, in cities of the second grade of the first class (Cleveland) * * * for sewer purposes five mills.”

That is a limitation upon the general statute then in force, Sec. 2683, which reads in part as follows:

“In addition to the taxes specified in the last section (for general purposes) the council in such city and village may levy taxes, annually, for any improvement authorized by this title, and for the following purposes:
“20. For the construction and repair of sewers, drains and ditches, and where the corporation is divided into sewer districts, the levy shall be by sewer districts. ’ ’

Other general laws provide for sewer district bonds, sinking fund and levies therefor by Sewer districts.

We apprehend that the levy in sewer district 24 complained of, was- under authority of the general statutes applying to all cities, and if the limitation of such levy to five mills attempted by the act of May 10, 1902, is unconstitutional, such limitation in nowise affects the validity of the levy which happens to be. just five-mills, the limit so unconstitutionally provided.

The petition is dismissed.

Henry and Marvin, JJ., concur.


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    MUNICIPAL CORPORATIONS — OFFICERS.
    [Cuyahoga (8th) Circuit Court,
    June 26, 1905.]
    Henry, Marvin and Winch, JJ.

      F. E. Cudell v. Cleveland (City) et al.
    1. Contracts Entered Into fay Unconstitutional Officers, How Validated.
    When a board of city hall commissioners appointed under an unconstitutional law have been employed or reappointed by the proper officers under a later constitutional act, their acts or contracts if approved by the appointing officers are valid and binding.
    2. Contract for Personal Service Requiring Skill need not be Advertised.
    When the contract to be entered into is for personal services of a kind requiring skill and technical learning the statutory pro-' vision that when the contract involves the expenditure of more than $500 it shall be advertised and bids received does not apply.

      George A. Groot, for plaintiff.

      N. D. Baker, for defendants.

       Affirmed, no op., Cudell v. Cleveland, 74 Ohio St. 476.

   WINCH, J.

In this action the plaintiff seeks to restrain the city of Cleveland, its auditor, treasurer and board of city hall commissioners, from carrying out a contract said board has made with the defendant, J. Milton Dyer, wherein it is provided that said Dyer is to prepare plans, as an architect, for a city hall to be erected by the city of Cleveland, and to furnish said city plans, specifications and drawings therefor, and do all the architectural service required of him in said contract, for which services the city agrees to pay said Dyer an amount equal to five per centum of the amount expended in the actual construction of said building when completed. It is estimated that said percentage will exceed $75,000.

It appears from the petition that the board of public service of the city of Cleveland, duly endorsed said contract as follows:

‘ ‘ To the extent' that the making or approval of the foregoing contract lies within the powers vested in the board of public service of the city of Cleveland the same is hereby approved and adopted. ’ ’

It is alleged that said contract is illegal and void for two reasons:

First: Because the so-called board of city hall commissioners is an unconstitutional body, incompetent to act in the premises and bind the city.

Second. Because the contract involves the expenditure of more than $500 and the commissioners did not advertise for bids and let the contract to the lowest bidder, as required by law in such eases.

To this petition a general demurrer has been filed which properly raises all the questions of law necessary to a determination of this case.

As to the first proposition it appears that the board of city hall commissioners was appointed under an act of the legislature passed April 19, 1898 (93 O. L. 549), which authorized the appointment of such a board in the city of Cleveland alone, and is admitted to have been unconstitutional.

The general municipal code passed October 22, 1902, by Sec. 216 (See. 4335 0. C. et seq.), paragraph 4 thereof, undertook to prolong the life and powers of this board, as well as that of the like board of market house commissioners for the city of Cleveland, but this court in the case of Slatmyer v. Springborn, 26 O. C. C. 100 (5 N. S. 89), held that said fourth paragraph of Sec. 216 so far as it related to said market house commission, was unconstitutional, and said board without validity and power. That decision was affirmed by the Supreme Court, no opinion, Slatmyer v. Springborn, 76 Ohio St. 683, and, were it not for the allegation in the petition that the board of public service approved the contract in question, wre should have to make the same holding with regard to the city hall commission in this ease.

In connection with that fact our attention is called to the last half of the first' paragraph and the second paragraph of said See. 216, which reads as follows:

‘ ‘ That whenever any city has in contemplation or in process of construction; or furnishing, a city hall, the director of public service may provide for the employment of five citizens of said city, to be named by them, not more than three of whom shall belong to the same political party, who shall constitute a commission under the supervision and direction of the directors of public service for procuring the necessary land for the construction and furnishing of said city hall. Said commissioners shall have power, subject to the approval of the directors of public service, to acquire, in. the name of the city, by appropriation or purchase, land for city hall purposes,” etc. “Shall make all contracts necessary for the construction and furnishing of such city hall, which contracts shall be in the name of the city, and shall be made after advertisement and bidding as provided by law, for the making of other municipal contracts, and shall be subject to the approval of the directors of public service. Such commissioners shall select from their number a president, and may appoint a clerk, and shall keep a full record of their proceedings,” and then follows a provision as to their compensation.

There can be no question as to the constitutionality of what has been just quoted. It is general and applies to all cities in Ohio. Have the directors of public service of the city of Cleveland acted under it and virtually employed, or reappointed, the the five citizens named under said unconstitutional act of April 19, 1898, as a commission to buy land, employ architects, approve plans and make contracts for a city hall, subject to their approval ?

We think the petition sufficiently shows that they have, and that the approval of the contract in question by the directors of public service establishes the existence and powers of the defendant commissioners as such board.

So finding, it follows, that the first objection to the contract in question is not well taken.

The second objection is based upon Sec. 143 of the municipal code (Sec. 4328 G. C.), which provides among other things:

“When' any expenditure within said department (of public service) other than the compensation of persons employed therein, exceeds five hundred dollars, such expenditure shall first be authorized and directed by ordinance of council, and when so authorized and directed, the directors, of public service shall make a written contract with the lowest and best bidder after advertisement, for not less than two nor more than four consecutive weeks in a newspaper of general circulation within the city.”

It will be noticed that a distinction is made between the compensation of persons employed, and contracts involving other expenditures. The same distinction is made in the paragraphs last quoted from Sec. 216:

“The board subject to the approval of the directors, has power to employ architects and to make contracts” for certain other purposes, it being provided that the latter contracts only “shall be made after advertisement and bidding as provided by law for the making of other municipal contracts.”

A comparison of the general section applying to municipal contracts (143) and the special section (216) applying particularly to this case, and for that reason furnishing us the rule by which we should be governed in determining the issues herein, shows the common-sense distinction made by the legislature and its evident intention to exempt from advertisement, and bid, contracts for personal services.

The reasonableness of such construction is most strikingly illustrated in the present case. An architect is an artist, his work requires taste, skill and technical learning, ability of a high and rare kind. Advertising might bring many bids, but it is beyond a peradventure that the lowest bidder would be least capable and most inexperienced and absolutely unacceptable. As well advertise for a lawyer or civil engineer for the city and intrust its vast affairs and important interests to the one who would work for the least money. We find no merit in the contention.

The demurrer to the petition is sustained.

Henry and Marvin, JJ., concur.


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    EXECUTORS AND ADMINISTRATORS.
    [Cuyahoga (8th )Circuit Court,
    June, 1905.]
    Henry, Marvin and Winch, JJ.
    George W. Downer, Adm. v. State Savings & Loan Co. et al.
    Property of Decedent Acquired after Decease not Set-off Against Administrator.
    When property of a decedent has come into one’s possession after the death of the decedent, no right of set-off exists in favor of that person, as against the personal representative.
    Appeal.
   WINCH, J.

The petition alleges that plaintiff is the duly appointed and acting administrator with the will annexed of Robert N. Pollock, deceased, who died in May, 1901; that at the time of his death said Pollock was the owner of ten shares of the capital stock of the defendant loan company, of the par value of $100 each, the certificates for which said shares came into the possession of plaintiff and are now held by him as such administrator; that in July, 1902, subsequent to the death of said Pollock, said loan company went into voluntary liquidation and after paying all its debts and liabilities there remains in the hands of its liquidating trustees, who are made defendants in the action,' assets of the corporation sufficient to pay its stockholders from eighty to ninety per cent, of the par value of their stock; that distribution of such assets has been made by said trustee to all other stockholders, but that they refuse to pay plaintiff his distributive share on account of said ten shares held by him, though requested.

The prayer of the petition is for an accounting and for judgment for the amount found due plaintiff on said shares.

A joint answer is filed by the defendant loan company and its liquidating trustees, which substantially admits all the allegations of the petition, but pleads, as an off-set to plaintiff’s claim, an indebtedness of said R. N. Pollock in the sum of $5,000, which became due from him to the defendants December, 1900, some five months before Pollock’s death. It is further alleged that said claims were duly presented to plaintiff and allowed by him as valid claims against the estate of which he is administrator, but not paid by him; that the estate is insolvent and unless off-set of said claims is allowed against the claim of plaintiff, that defendants will be entirely defeated from collecting more than a nominal amount of said indebtedness.

• To this answer, as stated, plaintiff demurred, and the only question for determination, is whether the claim of defendants is of such character that they should be allowed to off-set it against plaintiff’s claim.

Had the loan company gone into liquidation before Pollock’s death so that in his lifetime a right accrued to him to demand and receive from said company in money his distributive share of its assets, it would seem that the company could have off-set his indebtedness to it and applied his distributive share upon said indebtedness. That not having occurred, what rights, if any, became fixed and determined upon Pollock’s death?

On the one side it seems clear that title to Pollock’s shares of stock passed to his administrator in trust for the benefit of his creditors, with the right and duty, on the part of the administratoa1 to sell said shares, as provided in the statutes, i. e., convert the same into money, and distribute the proceeds thereof to the creditors of the estate.

On the other side the loan company, upon the allowance of its claim by the administrator, which was in no sense a preferred claim, became entitled to share, pro rata, in the assets of Pollock’s estate.

Can the loan company, by any act of its own, change this course of distribution? It must be conceded that the administrator had no claim against the loan company amounting to a cause of action by virtue of the certificates of its stock to the defendants, the authorities are uniform that the debt of the decedent could not have been deducted from, or set-off against, the purchase of the stock (Dayhuff v. Dayhuff’s Adm., 27 Ind. 158, and cases there cited). On page 160 of this case the judge delivering the opinion says:

“To allow a set-off in such cases would disturb the due course of administration and distribution of the estate.”

The same proposition is made in all the cases cited and appears to be sufficient reason for the conclusions reached. Among the cases so cited is the ease of McDonald v. Black’s Adm. 20 Ohio, 185, [55 Am. Dec. 448], which is more in point as an authority, not only because it is a.decision of our Supreme Court, but because the facts of the ease are more nearly like the case at bar. The fourth paragraph of the syllabus reads:

‘ ‘ A party receiving property, part of the assets of an estate, can not when sued for it, set-off a debt due from the estate to him.”

The action was brought by the administrator of Black to recover against McDonald one-third of the insurance money collected by him after Black’s death on account of the loss of a steamboat which belonged in equal parts to Black, McDonald and another; McDonald received from the insurance company two-thirds of the amount, being his own and Black’s shares, but refused to pay Black’s share to his administrator, claiming that he had a right to set-off advances made by him for Black on the purchase of the boat and one-third of payments he had made for the boat’s debts.

The judgment of the common pleas court allowing no set-off was affirmed. On page 196, Judge Ranney delivering the opinion and considering the claim for advances made for Black in the purchase of the boat, said:

“If McDonald advanced money for Black, Black became his debtor for the amount. If money had come to the hands of McDonald before the death of Black, the right to set-off might have existed. The moment Black died all his creditors had an equal right to a pro rata dividend of his property, upon which no liens existed; and it would be entirely inadmissible to hold that one creditor could get property into his hands belonging to the estate, and thus indirectly by an off-set’obtain the full payment of his debts, while others might receive but a part, or nothing at all. No right of off-set existed in this case at the death of Black, and none could be acquired afterward by a seizure upon the assets of the estate.”

Judge Ranney’s conception of McDonald’s acts as a “seizure upon the assets of the estate,” is applicable to the acts of the defendants in this case. They had no right to take Pollock’s stock from the administrator, sell it and apply the proceeds to Pollock’s debt to them, nor can they accomplish the same result by indirection.

For error in overruling the demurrer to this answer, the judgment is reversed.

Henry and Marvin, JJ., concur.


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    HUSBAND AND WIFE.
    [Cuyahoga (8th) Circuit Court,
    June 26, 1905.]
    Henry, Marvin and Winch, JJ.
    William N. Ashbaugh, Receiver, v. Mary A. McGillin et al.
    Jurisdiction of Circuit Court as to Property Rights Growing out of Marital Relation.
    While the circuit court has no jurisdiction to dissolve the marital relation, yet in a ease properly before it on appeal, it has full and complete jurisdiction to hear and determine all questions involving property rights growing out of the marital relation.
    Appeal.
   WINCH, J.

The petition asks that certain lands be subjected to tbe payment of a judgment, that tbe liens on the lands be marshaled and said premises sold, etc. By subsequent pleadings filed in tbe ease tbe action lias become one in partition, as there are three heirs interested in the lands. It is conceded that the premises can not be divided into three parts, but must be sold and the proceeds divided after payment of liens upon tbe various interests.

Parties Lave agreed as to tbe marshaling of liens, but one issue remains for the determination of the court and that is raised in the following manner:

One of the three heirs has filed an answer in this court, since the appeal, in which be sets forth that a certain Ethel Howard, alias McGuire, claims to have some interest in said real estate as wife of another defendant, Vincent A. McGuire. He further avers that she is not in fact tbe wife of said McGuire, but asks that she be made party, required to answer, and on final hearing be adjudged to have no interest in said premises.

Ethel McGuire answered, claiming to be the wife of said Vincent A. McGuire, and as such entitled to dower in the premises and praying that upon sale thereof she be awarded tbe value of her contingent right of dower therein.

Yincent A. McGuire filed an answer denying the allegations in the answer of said Ethel McGuire.

When the case was called for trial counsel for Ethel McGuire desired leave to withdraw her answer and demur to the jurisdiction of the court. The court refused leave to withdraw said answer but entertained the demurrer, which is based upon the proposition that the issue involves the question of , marital relations between said Yincent and Ethel over which the common pleas, court has exclusive and final jurisdiction.

Overruling said demurrer for the time being, the court heard the evidence on the issue joined with said Ethel McGuire, from which it appeared to the satisfaction of the court that said Ethel Howard, alias Ethel McGuire, was never married to and was never the wife of said Yincent A. McGuire, and announced that it would so find as a fact. Said Ethel McGuire refused to introduce any testimony under her answer. It remains to announce our final ruling on the demurrer to the jurisdiction, so-called.

While the proposition stated by counsel for Ethel McGuire is sound, and this court recognizes that it has no juridietion to dissolve the marital relation, it is of the opinion that it has full and complete jurisdiction, in a case properly before it on appeal, to hear and determine all questions involving property rights growing out of the marital relation. We conceive the issue here made raises such a question and therefore overrule the demurrer.

Decree may be taken finding that said Ethel McGuire has no interest in the premises in question.

Henry and Marvin, JJ., concur.


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    EVIDENCE — STREET RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    November 19, 1905.]
    Henry, Marvin and Winch, JJ.
    Cleveland Electric Ry. v. George A. Boltz.
    1. Opinion Evidence Based Upon Results Inadmissible.
    When the opinion of a witness as to rate of speed of a car is based upon the results of a collision, his evidence should be excluded.
    2. Evidence Impeaching Witness Confined to Matter in Deposition.
    When evidence of one who was a witness at a former trial is taken by deposition, the evidence of one called to contradict him must be limited to matters about which he was examined when the deposition was taken.
    3. Instruction that Street Railway must Operate Cars under Control, Erroneous.
    It is error to charge that it is the duty of the company to operate its cars' in a safe manner and keep them under control.
    Error.

      Squire, Sanders & Dempsey, for plaintiff in -error.

      N. Marks Flick, for defendant in error.
   WINCH, J.

Plaintiff below, defendant in error, was a liveryman and on October 20, 1901, he let a rig, consisting of a trap and a pair of cob horses, to two young men, who with three others, their friends, were driving westerly on Francis street in the city of Cleveland, and turning into Willson avenue, a street running north and south, when the accident complained of occurred.

It seems that the team drove out of Francis street on a trot and the pole of the trap struck the right-hand front corner of a ear belonging to plaintiff in error which was proceeding northerly on the westerly track of Willson avenue. One of the horses was thrown down and so injured that he had to be shot; the other horse was somewhat injured and the trap was damaged.

The liveryman brought his action against the railway company alleging negligence on its part in the operation of its car, in that the same was run at a reckless and dangerously high rate of speed, was not kept under control by the motorman and no gong or other warning was given as it approached the intersection of the two streets named.

Verdict and judgment being for the plaintiff below, the case was brought here upon petition in error alleging numerous errors, all of which we have considered, but this opinion will briefly review only those errors occurring on the trial of the case on account of which we think the judgment should be reversed.

On page 56 of the record it appears that George "White, one of the young men who was in the rig, was asked:

‘ ‘ Q. Now, when you saw this ear I will ask you to give us about the rate of speed in your judgment?”

Over the objection of the defendant the witness was permitted to answer and said:

“A. Well, the way we were hit, and the team, I should judge about seventeen miles an, hour. ’ ’

A motion to exclude this answer was overruled, which we think was dearly erroneous; the -witness had previously stated, page 53, “I just about saw it (the car), being in the back seat,” so that his opinion was evidently based upon the results of the collision as he says, and not upon, any observation of the motion of the car.

The same witness (page 80) was asked the following question:

”Q. What ivas the reason, in fact, that you did not stop the rig before the collision?”
Over objection of defendant he answered:
“A. Well, the car was going so fast we didn’t have time to get out of the way.”

Motion to exclude this answer was overruled, which was error ; it was for the jury to say why the team was not stopped ; the witness ’ opinion was incompetent.

The motorman, whose testimony was taken by deposition, was asked upon cross-examination as to certain testimony given by him at a former trial of the case before a justice of the peace ; in this manner ground was laid for his contradiction and, on the trial in the common pleas court, B. J. Sawyer was introduced for that purpose. His examination, however, was not confined to the matters brought to the attention of the motorman and thus the witness Sawyer was allowed to bring to the jury many statements claimed to have been made by the motorman before the justice, which the latter had no opportunity to explain. This was clearly contrary to law. King v. Wicks, 20 Ohio, 88.

Plaintiff’s first request to charge was given and is as follows :

“The driver of the trap had a right to presume that the motor ear was being run in a safe, prudent and careful manner, and that if the car was approaching a crossing at a dangerously rapid rate of speed, that the person in charge of the motor would give notice of his approach by sounding a gong or bell or otherwise giving notice of his approach.”

The use of the word “safe” vitiates this charge, and it should not have been given.

It is the duty of the railway company to exercise ordinary care, commensurate with its business; to run its cars in a safe way would be more than is required of prudent and careful men.

Plaintiff’s third request, which was given, is as follows:

“It was the duty of the motorman to keep his ear under control so that he could stop said car in time to prevent injury to persons who could not see said ear on account of obstructions to view caused by the building on the corner. ’ ’

Such is not the law; all that is required of the motorman is that he exercise ordinary care to keep his car under control.

The charge as requested should not have been given.

Plaintiff’s fourth request was given and is open to criticism as charging that it is the duty of the railroad company “to use such ordinary care as to control said car.” The phrase is dangerous and misleading; if it means that the ordinary care to be used is such as insures control of the car, it is not the law. The proper expression would be: “to use ordinary care to control said car.”

Upon page 302 of the record it appears that defendant’s counsel was cross-examining the witness Sawyer as to his memory of what occurred on the trial before the justice of the peace and the following is shown to have occurred:

“Q. Did you have any other lawsuit the next day in Brown’s court? A. I don’t know, Mr. Crawford.
“Exception by defendant.
“The Court: Sustained.
‘ ‘ Q. Did you have a lawsuit the day before ?
“The Court: Sustained.
“Q.' Did you have a lawsuit that week?
“The Court: Sustained.
“Mr. Crawford: There is no objection.
“Mr. Flick : Well, there is objection to all that.
“The Court : It isn’t fair to the witness.
“Mr. Crawford : I except to the remark of the court.”

We think it was the trial judge who was not fair under the circumstances; the eross-examinatoin was legitimate and had not been pushed to such extremes as to call forth the remark of the court. Said remark tended to prejudice the defendant’s case before the jury.

For the errors enumerated the judgment is reversed.

Henry and Marvin, JJ., concur.


text:
    NEGLIGENCE.
    [Cuyahoga (8th) Circuit Court,
    November 10, 1905.]
    Henry, Marvin and Winch, JJ.
    Theodore C. Bender, Adm. v. Marcus A. Hanna et al.
    Evidence for and against Negligence Equally Inferential Requires Withdrawal of Case.
    When the evidence as to the physical cause of an accident is largely inferential and would lead to an equally natural inference precluding negligence, it is the duty of the trial judge to withdraw the case from the consideration of the jury.
    Error.

      II. F. Payer, M. B. Fxcell and B. M. Morgan, for plaintiff in error.

      F. K. Wilcox, for defendants in error.
   WINCH, J.

This was an action brought by plaintiff, as administrator of Frank Pesta, to recover damages for the death of the latter, alleged to have been caused by the negligence of defendants.

At the conclusion of plaintiff’s evidence, the trial judge sustained a motion of the defendants to direct a verdict in their favor.

It appears that Pesta on the night he met his death was engaged with others in unloading a vessel moored at the defendant’s dock; having finished his task be left the boat with about a hundred others, and some twenty minutes later was seen struggling in the water, about one hundred feet from where he left the boat, and was drowned.

There was evidence tending to show that there were no lights on the dock and that the night was very dark. Nobody saw Pesta fall into the water and there was n.o evidence tending to show how he got into it.

Counsel for plaintiff in error claim that the failure of defendants to light the premises was the proximate cause of Pesta’s death.

Quoting from their brief:

“On this point, the testimony showed without any question whatever, that Pesta got off the boat onto the dock, picked up his tools and started for home. Within one hundred feet or so of the place where seen just before falling, he was next seen in the water and was there drowned.
‘ ‘ The testimony tended to show that the man was in a position where, on the one side he was confronted with a net woi’k of tracks covered with cars moving, or liable to move at any time. On the other side, the dock, amounted to a dangerous precipice, with the water at the bottom. A mis-step in one side would precipitate him into the water; or a car might run over him on the other side. He fell into the water. It was so dark that a man could not see more than two or three feet in front of him. There is absolutely nothing in the case from which contributory negligence can be inferred. Suicide is out of the question. A ease is tried on' probabilities. The plaintiff’s theory is that Pesta stepped or fell off the dock on account of stumbling or losing his footing in some way in the darkness. What other theory is possible ? None.

We think that upon this statement of the case by counsel, the judgment of the common pleas court must be affirmed.

If it be true that there is absolutely nothing in the case from which contributory negligence can be inferred, it is equally true that there is absolutely nothing in. the case from which the negligenee of defendants can be inferred. Both knew, or had equal means of knowing, that it was dark and dangerous upon the dock that night.

Until some fact, besides the darkness, is shown, which explains how Pesta came to be in .the water, nobody will know whose fault it was that he got there.

The trial judge rightly refused to let the jury guess upon the subject. Lake Shore & M. S. Ry., v. Andrews, 58 Ohio St. 426 [51 N. E. 26] ; Cleveland T. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. 821; 52 L. R. A. 142]; United States v. Ross, 92 U. S., 281 [23 L. ed. 707]; Gerwe v. Consolidated Fireworks Co., 5 Circ. Dec. 616 (12 R. 420); Connell v. Miller, etc., Mfg. Co., 10 Dec. Re. 129 (19 Bull. 22).

Judgment affirmed.

Henry and Marvin, JJ., concur.


text:
    FRAUDULENT CONVEYANCES.
    [Cuyahoga (8th) Circuit Court,
    November 10, 1905.)
    Henry, Marvin and Winch, JJ.
    Maggie Ilkovis v. Joseph Conrad et al.
    1. Property Fraudulently Conveyed Subject to Payment of Judgment for Tort.
    One who holds a judgment against another for a wrong sounding in tort may maintain an action to set aside a conveyance in fraud of creditors.
    2. Creditor’s Right to Demand and Recover from Debtor.
    Any one is a creditor who has a right by law to demand and recover from another a sum of money on any account whatever.

      W. C. Rogers, for plaintiff.

      Aaron Hahn and Hills, McGrow & Van Derveer, for defendants.
   WINCH, J.

This was an action to set aside a deed from defendant, Joseph Conrad, to his son, George J. Conrad, and subject the property therein described, one parcel on Broadway in the city of Cleveland and the other on Pulaski street in the same city of Cleveland, to the payment of a judgment obtained by plaintiff against said Joseph Conrad in an action in tort.

Plaintiff having brought suit on her said claim against Joseph Conrad, trial was had which resulted in a verdict for plaintiff, but defendant’s motion for a new trial was granted on March 24, 1902. The next day, March 25, 1902, defendant executed the deed in question, to his son, but the wife of said Joseph Conrad and step-mother of this son, George, did not sign said deed or release her dower in the premises.

April 1, 1902, George deeded the Broadway property to the defendants, Cianciola, and the wife of the father signed said deed, relinquishing her dower in that parcel.

April 7, 1902, upon re-trial of said action, plaintiff again prevailed and recovered judgment against said Joseph Conrad.

We are not disposed to interfere with the present title to the Broadway property, for the Cianciolas appear to have paid full value therefor, without notice of any of plaintiff’s claim.

As to the Pulaski street property, in addition to the suspicious nature of the transaction between father and son occurring at the time it did, and the fact that the father still continues in the receipt of the rents and profits of the premises, we are satisfied, from the evidence, that the son never paid the father any consideration for the transfer.

Father and son both testify that the son paid the father $4,000 in cash at about the time the deed in question was delivered, and both claim that they kept this large amount in cash in the house, the son being unmarried and living with the father. The father says he frequently scolded the son for keeping so much money in the house, but from his own story, he did the same thing himself. He accounts for the disbursement of this money in the payment of certain debts and mortgages on the Broadway property, but we think that all the money he used in the manner he claims, came from the purchasers of the Broadway property, all of which he himself received, both the cash paid and proceeds of the mortgage given by said purchasers.

Evidently to help out this situation, anticipating that the court might find that said $4,000, the full value of both premises, was not paid in cash, notwithstanding the sworn statement of both father and son that it was so paid, both testify that as additional compensation the son verbally agreed to support his ■father and mother so long as they might live. “Falsus in uno, fals'us in omnibus.”

The statement is not to be believed, especially in view of the explanation accompanying it, that he made this promise to secure a release of his step-mother’s dower, she refusing to sign the deed, because if she did, after the father’s death the step-son might turn her out of doors. She had not yet relinquished her dower in the Pulaski street property. She probably signed the deed to the Broadway property because the purchasers did pay for that property.

' ¥e find that Joseph Conrad deeded the Pulaski street property to his son, George J. Conrad, without consideration, for the purpose of putting it beyond the reach of his creditors, and particularly for the purpose of hindering, delaying and defrauding the plaintiff.

The proposition that because the judgment of plaintiff is based upon a demand arising in tort, he is not entitled to the benefit of the statutes, 4196, 6343 and 6344, which authorize actions by creditors to set aside fraudulent conveyances, is not sustained by authority. Wait on Fradulent Conveyances, 123, and cases cited in note.

In Stanley v. Ogden, 2 Root (Conn.), 261, quoted with approval in Walsh v. Miller, 51 Ohio St. 462, 486 [38 N. E. 381], it is said: “ He is a creditor who has a right by law to demand and recover of another a sum of money on any account whatever. ’ ’

Decree may be drawn as prayed for with reference to the Pulaski property,

Henry and Marvin, JJ., concur.


text:
    WILLS.
    [Cuyahoga (8th) Circuit Court,
    November, 1905.]
    Henry, Marvin and Wincb, JJ.
    James Wade, Ex. v. Charlotte L. Bartlett et al.
    Transfer of Devisé and Trusteeship by Codicil Limited.-
    When the language of a codicil is, “Whereas in said will the one-third equal share in said property was devised, to my son N without the intervention of trusteeship, and whereas since the execution thereof good and sufficient reasons satisfy me that the same is required in his case as well as in that of his sister, now I do therefore revoke the said devise and bequest to him and do transfer the same to his wife and children instead”; Held: That the codicil, did not enlarge the trusteeship provided for the sister but transferred the devise from N to his wife and children.
   WINCH, J.

Nicholas Bartlett by item one of Ms will, directed that all his household furniture, carpets, pictures, bric-a-brac, books, clothing and things used in and about Ms.residen.ee be divided equally between his three children, Charlotte L. Bartlett, Lydia M. Gerrard and Nicholas Bartlett, Jr., the children of the deceased child to take the parent’s share.

By item two of his will testator directed that all the balance of his personal property be converted into money and divided in the same manner.

By item three of Ms will testator devised all of Ms real estate to his executors in trust, to be sold by him and converted into money, and authorized the executor to sell the same at private sale and upon such terms and conditions as should seem fit to Mm, and until he should so sell, to rent and receive the rents and profits, and, after sale, to divide the net proceeds as provided regarding his personal property.

This will was dated September 29, 1892, and was deposited with the probate judge of Cuyahoga county.

On August 21,1895, testator desiring to make a codicil to his will and not having the will before him, executed the- following:

‘1 Codicil to my last will, dated in 1892, and filed in, the office of the Probate Court of Cayahoga County, Ohio.
“Whereas, in that will James Wade, Esq. the executor thereof was also constituted trustee, for the due protection of the interest of my eldest daughter, Miss Charlotte L. Bartlett, in the property therein devised, for reasons well understood and that still exists; and
“Whereas in said will the one third equal share in said property was devised to my only son Nicholas Bartlett, Jr., without the intervention of trusteeship, and whereas since the execution thereof good and sufficient reasons satisfy me that the same is required in his case as well as in that of his sister, I do now therefore revoke the said devise and bequest to him, and do transfer the same to his wife, Mrs. Minnie Bartlett, and to their children, surviving me, now Lueretia, Mary and Nicholas, instead; and
“The said James Wade, Esq., is hereby constituted trustee in that behalf also (without bond) to make effective this bequest substituted.”

After testator’s death said will and codicil were probated and plaintiff became executor and trustee as therein named, and brings this action for a construction of said will and codicil with regard to the nature and extent of his trusteeship thereby created.

It appears that the eldest daughter was and is insane and that the son’s habits troubled the father.

There is some little ambiguity occasioned by the wording of the codicil, in that it seems to speak of a general trusteeship 'for the daughter, Charlotte, while the will provides and defines the terms of a trust upon which her real estate, only, shall be held.

The scheme of the will is simple and clear; testator willed directly to the insane daughter one-third of his personal property; that the executor could then tarn over to the guardian for her.

But as to real estate, to avoid trouble in, its division and recourse to court proceedings to effectuate a sale thereof, necessary incidents should the title to one-third thereof be vested in an insane person, testator devised it in trust to his executor, whom he vested with power and discretion in its sale.

We think the codicil, so far as it relates to a trustee for Charlotte, clearly refers only to testator’s real estate as devised in trust to his executor by the third item of the will.

The sole purpose of the codicil appears to be to substitute the wife and children of Nicholas Bartlett, Jr., in his place as beneficiaries under the will. Remembering the trust therein created because of the insanity of Charlotte, testator continues the trust for the purpose expressed by himself, “to make effective this bequest substituted,” and for no other purpose, that we can discover, if indeed it ivas necessary in the codicil to say anything about the trust created by the will. It is urged by the executor that the codicil should be construed as creating him a general trustee for all the property left to both Charlotte and the wife and children of Nicholas, but if the testator intended any such thing, he did not express such intention in his codicil and the will and codicil are readily construed without recourse to such intendment.

If it was testator’s intention by his codicil to create any other trust than that mentioned in the will, he negleeed to state any terms or conditions, limiting or defining the same, or prescribing its administration, and the court can not state them for him.

The executor is directed to administer the estate as if the names of the wife and children of Nicholas Bartlett, Jr., were inserted in the place of the name of said Nicholas Bartlett, Jr., wherever the same occurs in the will.

Judgment accordingly.

Henry and Marvin, JJ., concur.


text:
    PRINCIPAL AND AGENT.
    [Cuyahoga (8th) Circuit Court,
    December 1, 1905.]
    Henry, Marvin and Winch, JJ.
    American Sugar Repining Co. v. Cleveland Steel Canal Boat Co.
    Agency is Question for Court when Evidence of Authority Is All in Writing.
    When all the evidence as to an agent’s authority is in writing, it is the duty of the court to construe it and instruct the jury whether or not the agent had authority to do the particular act in question.
    Error.

      Garfield, Howe & Wesienhaver, for plaintiff in. error.

      Goulder, Iloldmg & Hasten, for defendant in error.
   WINCH, J.

By the consideration of the common pleas court defendant in error recovered a judgment against plaintiff in error, for work and labor performed in handling certain freight and for freight charges advanced and paid by the canal boat company for the sugar company.

To state all the facts of the case, which are somewhat numerous and involved, is unnecessary. Counsel in the case will understand our rulings on the errors assigned for review in this court, without such statement, and there are no particular propositions of law in the case of interest to the bar at large.

It is clear that the crucial proposition in the case is whether or not the trial judge was right in ruling that there was no evidence proving that one Oxley was the agent of the canal boat company in the making of the certain special contract regarding the matter in controversy which the sugar companjr claimed it had made through him.

Oxley was shown to be an agent of the canal boat company in certain matters, as he was of other forwarding companies; the trial judge permitted him, to give his instructions from his principal, which were verbal, and to describe his duties, and from the record it is clear that he had no general authority to make the special contract claimed.

Whether or not Oxley had special authority conferred upon him to make the special contract, or at least, whether or not the canal boat company induced the sugar company to believe that Oxley had such special authority, upon which belief it aeted, depended upon the construction to be put upon certain letters and telegrams which passed between the parties, and at least one of these telegrams was so worded as to require construction, the language used therein, being somewhat ambiguous.

All the evidence regarding this special authority of Oxley being in writing, it was the duty of the trial judge to construe the writings and determine the question as a matter of law and instruct the jury accordingly. This he, did, holding that Oxley was not the agent of the canal boat company for the purpose claimed, and ruling out all evidence as to the terms of the contract alleged to have been made by Oxley with the sugar company.

We find no error in this ruling; the record supports it.

Having ruled out all evidence with regard to the arrangement claimed to have been made by Oxley with the sugar company, the trial judge nevertheless submitted to the jury the questions whether or not the canal boat company had ratified it and it is claimed that in so doing an anomalous practice was engaged in.

We think this criticism of merit, but no prejudice to plaintiff in error can be predicted upon it; the error was in submitting the question of ratification to the jury at all. The record does not show ratification. The special contract claimed by the sugar company appears to us to have been wholly without consideration. If Oxley ever made any such contract as is claimed by the sugar company, it was to the effect that he would procure the sugar to be forwarded to Cleveland by other forwarders, who were to be and were paid their charges by the sugar company, arid that the canal boat company would receive the sugar at its warehouse in Cleveland, handle it for nothing and also pay part of the freight bills in distributing it to points beyond. Cleveland.

As the canal boat company had no contract with the sugar company to receive and distribute any certain quantity of sugar in a season, but had agreed to the handling and forwarding only when sugar was shipped in its own boats and the freight thereon was paid to it, we can see no reason why -Oxley should have made such a contract or why the sugar company should be bound by it, but he made it and communicated the fact to the canal boat company.

The latter received the sugar and distributed some of it, after it learned of the claims of the sugar company, but the matter was kept open by correspondence between the parties and we think that under the circumstances of the case, as disclosed by the evidence, there was no proof of ratification made.,

Some exceptions to rulings on evidence are called to our attention. We find no error in the rulings with regard to Oxley’s testimony as to his agency; he was permitted to testify as to instructions received by him and his general course of dealing. But manifest error was committed in permitting Wheeler, managing officer of the boat company, to testify that neither he nor the company, through any agent, had anything to do with making the arrangement claimed by the sugar company. This evidence was of a hearsay character, so far as it referred to the acts of an agent, and the witness’s conclusion, so far as it referred to the agent’s authority. However, it subsequently developed that Oxley was the only agent referred to and his authority became a question of law which the court determined, arriving at the conclusion stated by the witness, and that conclusion was supported by sufficient competent evidence. We think the jury was not influenced by the improper admission of this evidence, which, perhaps, might have had undue weight with a jury. We therefore hold that under the circumstances no prejudice resulted from permitting the witness Wheeler to give his opinion as to Oxley’s agency.

Finding no prejudicial error in the record, the judgment is affirmed.

Henry and Marvin, JJ., concur.