author: King, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Oct. Term, 1898.)
    Before King, Haynes and Parker, JJ.
    ALFRED C. NEEL v. MARIA L. McCREERY.

      Lease — Agreed upon by correspondence — Indefiniteness—
    .(1) Where a party holds a lease on premises for five years with the privilege of five years more, “at the same rate,” and, while holding the premises for the five additional years, he offers to taRe the premises for ten years more, at the same rates, which offer is accepted by the lessor, the parties by the word “rates” clearly meant the same terms and conditions as in the former lease, and the terms and conditions in the new lease are not so indefinite as to make the agreement for the new lease for ten years too indefinite to be enforced by the court.

      Contract for lease — No damages for failure to execute where pos* •ession is given—
    (2). Where the lessee is given possession of the premises, he is not entitled to damages from the lessor for failure to execute a lease for the term agreed upon between the parties.
   King, J.

This action comes into this court by appeal. Suit was ■brought in the court of common pleas to compel the defendant to execute tc the plaintiff a lease upon certain premises under an agresment, as alleged in the petition — 'a contract. 'The allegation in the petition is denied in the answer. It is contended, ako, that she never agreed to make a iease, but that, in addition to this, if such an agreement could be found from the evidence, that it is within the statute of' frauds and could no be enforced, because not in writing;, or if in writing, it is not definite and certain.

The contract in the case, if there is 'one, is a contract-made by correspoondence.

In August, 1887, the plaintiff and his then partner,leased of the defendant one story of the premises in question, by a. written lease that was duly executed'by the parties, left for record September 6, 1887, and duly-recorded. By this lease the defendant rents the first floor to the plaintiff and his partner for a term of five years, commencing on the first-day of October, 1887, and ending October 1, 1892, for the sum of $1,500 a year, to be paid in equal installments of' $125, on the first day of every month, and containing a provision in these words: “With the privilege of five years-more at the same rates.” Plaintiff, during the term, seems to have succeeded to the business and interest of his partner in the lease, and, at the end cf five years, he elected to take it five years more, and after that period had partially elapsed, and while he was in possession of the premises and carrying on the business of manufacturing and selling trunks therein, he began the correspondence which is-introduced in evidence in this case, with a view of securing this ’ plaoe of business after the expiration of his term October 1, 1897. This correspondence began on the twenty-eighth of December, 1898 and I refer to an extract from it, which wo conclude has some bearing upon the question whether there was a contract. On the twenty-eighth of December, 1398, the plaintiff wrote to the defendant, and among other things-said to her this:

“My time here runs something more than three years yet, but I will not want to Wait until the time is up before knowing what I a'm to do. If you are willing to extend the time-for ten years longer from the expiration of the.present lease at the same rates, please let me know at once, and I will soon decide between that and another prospect I have. We might make terms on the whole building, and save you the-annoyance such as you have had with some upstairs tenants. ”

On January 5, 1894, the defendant wrote to the plaintiff the following in regard to that proposition:

“In regard to your proposal, or plan to take the whole-building, 317 Summit street, I would be pleased with the-idea if you think you can pay me my price. I have had an offer of the same sort at $2,000, and did not encourage the party, because you held the lease. It was a great tempta-tión, and only $100 more than I have been and am now getting. If yon will agree to these terms, I would prefer you .should have it. ’’

A fire occurred whioh damaged chis property in some respects, and interrupted the correspondence to some extent; but on February 5th the defendant wrote to the plaintiff inquiring why she didn’t hear from him about the lease, and making some other inquiries. On February 7th, and before he had received that letter, he wrote her another, devoted principally to a proposition upon his part to lease the ■ground upon whioh this building stood, for some long term of years, and argued that it would be beneficial to both parties, and under such a lease he would put up anew building. But having received her letter of the 27th, ou March 1, he ’.addressed another to her, in which he says this:

“Now about renewing the lease after my present one expires, (I want to make it plain to you), I received your letter of January 5, ’94, containing your preposition of $2,000 for the entire- building cn another ten year lease. I want to say I will take it cn those terms, unless we can mutually agree on the other plan which I suggested in my last letter yesterday.”

Then he goes on to repeat it. On March 6, she wrote him. a letter, in answer to this one to whioh I have referred, and perhaps the one preceding, in which she dismisses entirely his proposition to lease the ground, but suggested to him that he take a five year lease of the whole property, beginning the following April, which would be three years and six ■months before the expiration of his then existing lease. March IB, 1894, he replies tc this letter in a long and somewhat rambling letter,but says in the course of it the following :

“In conclusion I will say that my letter to you of December 28, 1898, asked for terms on an extension of ten years after the present lease expires. Your answer of January 5, ■’94, made the proposition of $2,000 per year for the whole building.1 I have already written you accepting it on those •terms. If in the future you wish to consider the other plan, it can be discussed at any time.”

That would have been a very good place to stop with the ■correspondence, but it kept on. She fellows with two other letters in which she makes two other propositions, whioh I need not stop to refer to. April 6, 1894, he undertakes to answer these, and in the oourse of the answer says:

“I don’t see that I need say anything more about leases. As I have repeatedlv said- wou in your letter last January, '.made your proposal to lease me the whole building at $2,000 ■per year, for another ten years after my present lease on • this room expires. I have accepted that offer, which I consider binding on myself as well as you. I am disposed to do exactly as I agreed to do, and consider myself bound here till October, 1907.”

Then he follows with matters not relevant to the question I am discussing, and then says:

“If it wfll settle the matter, though, I will take third floor off your hands at $100 per year, beginning May 1, and run to October-1, 1897; and from then, you have agreed to lease me the whole building at $2,000 per year for ten ■years. ”

May 2, 1894, she replies ti this letter, with some causes ■for delay. She says as follows:

“I think I understand what you want to do aid what you want me to do. You are willing, you say, to take my offer of paying me $2,000 for the whole building, but not willing to commence doing so until the present lease expires. I wrote you requiring you to grant me a new lease, taking the whole building at those terms, commencing the first of May, 1894. I thought you would be willing to do this after you knew you were keeping me from making $2,000 on the store alone. For you can readily see had my store been empty thiR spring, I would have gotten $2,408. But ■ as you are willing to pay the $100 per year on the third story, commencing May 1, 1894, I accept your offer. This is as fair as I can expect or wish.”

There is much more in that letter, and there are many more letters running over the period between May, 1894, and October, 1897. Out of them all we extract no agree- ■ ment to rescind or set aside any previously made agreement, ’ but upon the defendant’s part there was a continual series of different propositions, all of which were substantially ignored,- by the plaintiff insisting that he bad made his agreement, and insisting that she sJüould execute' the lease in pursuance of that, and mailing to her at different times forms of leases that he had drawn up, which she neglected, and finally refused to sign or execute. His time in the lower store expired, and he began on his new term There was po notice to quit at the expiration of his ten years. He continued doing business on the first floor, and more than that, she gave orders to all her tenants in writing to pay their -.rents to the plaintiff for their future leases after October 1, ’1897, but refused to make any written lease to the plaintiff.

He also began and continued the navment cf $100 per year for the third floor from May 1, 1894, to October 1, 1897, whioh she received and kept.

We think it fairly appears from this correspondence that-this defendant agreed to lease this property to t.he plaintiff, in writing, for ten years, commencing on the first day of October, 1897, the rent and the other conditions thereof to be as in former lease. The basis of all this correspondence is the proposition cf the plaintiff that he would make only that-kind of a lease, upon the same rates as contained in his present existing lease.

It is said that the word “rates” does not apply to the terms; hut it will be noticed that the parties in the lease which was executed in August, 1887, provided that the term should be five years, but that there should be a renewal for five years longer, at the option of the lessee, upon the same rates. What construction would the court give to that expression? Clearly the parties meant the same terms and conditions. The terms and conditions which are applicable to the present lease are not indefinite at all, nor indeterminate. They are the same, if based upon plaintiff’s proposition first made, as in the old lease, excepting so far as those conditions and terms have been 'by the parties modified. They did modify it; first, as to the term, which, instead of being for fivo years with the privilege of five more, is for ten absolutely; second, the rental and amount of premises rented, instead of the first story, the three stories of the building are rented, and instead of $1,500 a year, the amount of rent in the first lease, $2,000 a year is stipulated for. One prevision appears in these letters, and the correspondence indicates, that it was understood by the parties that rhe lessee should have the privilege of subletting both the floors that he was not occupying with his business. His object in rent-, ing it, as he expressed it in his letter to her was, that she-might not be bothered with a number of tenants, and might look to him for the rent wholly. Clearly he indicated that he desired to sublet the other two floors. So that condition is made plain from the necessities of the case and the character of the contract that the parties entered into, that he-should have the privilege of subletting the second and third floors.

We think it seems clear that the plaintiff should be entitled to specific performance of this contract- — -that is, it should be decreed that defendant should execute a lease for ten years from the first of October, 1897, at an annual rental cf $2,000 per year, payable in equal installments of $166.67 on the first day of eaoh month; that he should have the privilege of subletting the second floors; and the other terms and conditions, many cf them only incidental to the contract, should be the same »b in the original lease.

J. M. & W. F. Brown, for Plaintiff.

Scribner & Waite, for Defendant.

The case was somewhat hurriedly submitted to this court, and after or during the argument it was suggested by the plaintiff that he had evidence that he desired to offer claim-in damages of the defendant for her failure to exeoute her lease in time. No evidence was submitted. However, we will decide the case' as if the plaintiff had proved, or offered to prove, what he claims he should be entitled to prove.

We do not think this is a case for damages. Plaintiff s agreement which we have found to have existed, was certainly made as early as May 6, or within a day or two after that, 1894. It was an agreement that the defendant should execute to him a lease of this property for ten years. Within a reasonable time thereafter, if she failed, or neglected, or refused to execute it, he could have brought his action to compel her. He was not required to wait until possession could have been delivered, or until the lease was to take effeot; for the object and purpose, as he says in his correspondence, of making this agreement, was that he might know some time in advance that he was- to have the premises. So he might have begun this action long before the first day of October, 1897. But he waited, however, until long after that time, and at that time, as I have stated, the possession of the entire building was turned over to- him. It is said now as a reason why he suffered damages that he had no written lease to rely upon, and therefore he could not contract with her tenants to take the other part of the premises that he did not occupy. He had this contract, which either was or was not a contract,good for ten years, or good for a lease for the term of ten years, and if he relied upon it, he could proceed as if he did rely upon it. He could not have suffered any damage by reason of the .failure of defendant to execute a lease, since defendant had given to him possession of the entire premises. Had she refused to give him possession, then there would be some ground for his claim that he had been damaged. We see none in this case, but hold that he is not entitled to recover for damages. The entry will be accordingly.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Smith and Swing, J J.
    GAUSEN et al. v. MOORMANN.

      Administrator holding over in leased premises — Individual liability—

    An administrator of the deceased assignee of a permanent leasehold containing covenants to pay rents and taxes, who for some time continued to hold possession of the leasehold, is not personally liable for rents and taxes accruing.
    (Affirms same case, 5 Nisi Prius, 254.)
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

The plaintiffs in error are the owners of the fee to the property known as the Germania Hotel, which is under a perpetual lease containing covenants to pay rents and taxes, • binding upon the lessee, his heirs, executors, administrators and assigns. This lease was assigned to one Wm. Pape, who carried on the hotel business until his death, when he was succeeded in the business by his widow, as administra-trix, and subsequently under authority cf the probate court by F. J. Moormann, the present defendant,as administrator de bonis non, who carried on the hotel business for a period of seven months, during which time rents accrued to the amount of $1,225,and $805 taxes. Suit was brought by the owners of the "fee against Moormann as administrator de bonis non, and Moormann individually, the election being subsequently made to proceed against Moormann individually.

The question thus presented was as to the individual liability of the administrator of a deceased assignee of a perpetual leasehold containing covenants to pay rents and taxes.

Judge Hollister’s holding, was thoat there was no personal liability on the part of the defendant to the plaintiffs. This, for the reason that the estate, divested by the statute of its chattel qualities, was no longer an asset in the hands of the administrator. The title was in the heir of the deceased, William Pape, subject to the dower rights of his widow, and from the heir the administrator could not take it except for. the sole purpose of selling it in the manner prescribed by law to pay the decedent’s*debts; and he could take the title for this purpose, not as one having any interest in it, but as a convenient instrument or conduit by whom and through whom the title could be passed from the heir to the purchaser. In this view of the matter the liability to the plaintiffs for rent and taxes attaches to the dowress and the heir as assignees of the iease by operation of law; and for rents collected by the defendant from portions of the property not used for hotel purposes, he is liable to the heir and dowress, as their agent, or if such agency is disaffirmed by the minor, then as their tenant.

M. F. Galvin and E. P. Bradstreet, for Plaintiffs in Error.

Wm. L. A very and F. J. Moormann, contra.

We think that the finding made in this case by Judge Hollister on the facts and the law was correct, and on the'' ground stated in his opinion submitted to us, the judgment will be affirmed.


author: Maevin, J.

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Hale, Marvin and Caldwell, JJ.
    THE OHIO FARMERS’ INSURANCE COMPANY v. E. L. BURGET.

      Fire insurance — Temporary removal of goods to other place—

    (1). Where goods insured are removed temporarily for some reason from the place where they were insured to another place, and then returned to the place where they were insured, where after-wards they are destroyed by fire, the company is liable for the loss.

      Same — Verbal assent of agent where writing required — Liability—
    (2). Where the policy provides that the policy shall be void if the goods are removed to another place without the consent, in writing, by the company, and the goods are removed with the verbal consent of the agent, who tells the party to come in after-wards and the policy would be fixed, but the goods are then destroyed before the written consent of the company is endorsed on the policy, the company is liable for the loss, notwithstanding the provision in the policy that its agents are not authorized to waive any of the conditions of the policy.
   Maevin, J.

The oase of the Ohio Farmers’ Insurance Co. v. E. L. Burget, is brought here upon a petition in error to the court of common pleas.

The suit was brought in that court by E. L. Burget, to whom the Farmers’ Insurance Company had issued a policy of insurance upon certain household goods owned by the plaintiff below. The policy was issued on November 22, 1895. At the time the policy was issued, the goods were in a house at No. 863 Prospect street in the city of Cleveland. Subsequent to the issuing of this policy, it was left until after the fire ooeurred by which the property was destroyed, with the agents King & Reed, by whom it was issued.

The assured, in February, 1896, removed to another part of the city, taking these goods to Winchester avenue. Shortly before moving to Winchester avenue, a portion of the goods, insured were removed fcr a few days and kept at a house on Huron street, and thereafter removed on February 4, 1896, to the house on Winchester avenue, and the fire occurred on the night of that day, resulting in the destruction of the property or a part of it, and, because of that state of acts, suit was brought and recovery was had.

It is said that there was error in the trial of the case; error in the overruling a motion for a new trial which was filed. .

The errors complained of consist chiefly in that the court allowed a recovery to be had notwithstanding a clause in the policy, which clause reads:

“If the assured is not the sole and unconditional owner of the property; or if any building intended to be insured stands on ground not owned in fee simple by th9 assured; or if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, is not truly stated in this policy; or if any change takes place in the title, interest, location or possession of the property (except in case of succession by reason of the death of the assured,) whether by sale, transfer or conveyance in whole or in part, or by legal process of judicial deoree, or if this policy be assigned or transferred before loss, this polioy shall become void, unless consent in writing is endorsed by the company hereon. ’’

Thera was no consent in writing on the part of the company, that the location of these goods might be changed.

It is said that by reason of this clause in the policy and the fact that a change of location was .made and no written consent entered upon the policy,the policy became void. It is urged that the polioy became void immediately upon the removal of the goods from No. 368 Prospect street to Huron street. That, from the evidence, was clearly a temporary removal. The goods were not destroyed while on Huron street. It probably would hardly be claimed, at least it could not, as I think, be successfully maintained that if the goods for some reason had been removed to Huron street for a few days and then returned to No. 863 Proapect street and there destroyed by fire, that the company would not be liable; but the simple removal to Huron street and then taking back to the place where they were when the policy was issued, would not invalidate the policy and release the company from liability.

It will be found on examination of the authorities, that where there is a provision in the' policy that where the premises insured become vacant the policy will become void, it is only in the case where the fire occurred during the time the property is thus vacant, that the company .is relieved from liability.

So far as I have seen, in each case where a recovery’ has been denied on the-ground that the clause in the policy providing that if the premises shall become-vacant the policy shall become void, it is where the fire occurred during such vacancy; and the same reason would seem to establish the preposition that it could be only in the case that the property had been destroyed on Huron street, that the liability on the part of the company could be evaded because of such removal to that street.

The plaintiff, Burget, as is testified to both by herself and by Reed, called at the office of King & Reed, the agents -from who this policy vas obtained, to whom application was made and who, by the terms of the policy must sign it before it is valid. She represented on the day that she moved to Winchester avenue, to that office, to Mr. Reed, that she would move that day. She says she had expected to move, but said nothing about having her goods stored at Huron street. She says she expected to move unless prevented by reason of storm. In fact, she did move that day. She testifies that Mr. Reed said to her when she said that she was about to move, “Very well, we will take oare of you,” or “You ccme in and we’ll fix your policy for you’ Mr. Reed says she stated that she was about to move, and he said he would have to examine the place and determine what todo, but the jury evidently believed she told what occurred, and that Mr. Reed was mistaken. But it is said that the language of the policy is such, even if that did occur and if Reed gave her to understand by his language that the policy would be continued in force, still he could not waive on behalf of the company this provision’in.the policy.

Exception is taken to the charge of the court on the right of the agent to waive this provision of the polioy and the right, to have the change made except it be endorsed in writing. In regard to this matter the court said:

“If this property was destroved by fire on Winchester avenue, and if this is the same property described in this policy of insurance, and if its removal there was with the approval of the agent cf this company; that is, if what occurred at the office of this company amounted to an assent of the company to have this property covered by the policy in its new location on Winchester avenue, so that it was in fact covered by this policy, we think that the fact that in the progress of moving it, it was for a day or more kept at some house on Huron street, would not have the effect to prevent, recovery in this case, and would not be a material fact in this case, so far as its determination by the jury is concerned.”

That was excepted to. What has already been said shows we do not understand that there was any error in this language of the charge.

On the question of the consent tc the removal which is complained of, the court said:

“It was the right of this company, to render it liable under this policy, tc haye endorsed in writing on the policy the consent of the company to a change, before liability would arise under the policy, growing out cf a fire occurring and at changed locality. It had the right, I say, to have this in writing; but that if the agent of this company, in substance, iufcrmed the plaintiff that she might make this change, and that this endorsement on the policy could be made later, that she might bring the policy in at some time for the purpose of having this endorsement made, that would constitute a waiver on the part of the company to have that endorsement in writing on the policy before the change was made. So that it becomes important then, and becomes a question of fact for your determination, what occurred between the agent of this company and this plaintiff the morning of the day, or the morning she called concerning this removal.”

Now it is urged that this was error, because the agent under the terms cf this policy could not make such a waiver. We think there was no error in that charge, and that the court was fully justified in what was said by what is said in vcl. 11 of the American & English Encyclopedia of Law, (old edition,) 131, and the authorities there cited. Also 13 Wal., 222; 67 Cal., 36; Walsh v. Aetna Life Ins. Co., 80 Iowa, 133; 27 Wis. 693; and especially by the case of Niele v. Germania Life Ins. Co.,, 26 Iowa, 9.

The condition in this last lease was that if the risk be increased by a change of occupation, etc., (it was a building that was insured), without written consent, the policy should be void. It was held that the agent who had the authority to issue the policy and take the premium, might waive the provision and a recovery be had.

The fourth clause of the syllabus reads: “A condition in a policy of fire insurance, that if the risk be increased by a change of occupation or other means within the control of the assured without the written consent of the insurers the policy shall be void; being inserted for the benefit of the insurers, they may dispense with a compliance therewith or waive a forfeiture of the policy incurred by a breach thereof, and thereby become estopped from setting up such condition or breach in an action for a loss subsequently occurring.”

The fifth clause reads: “And such waiver of the forfeiture arising from the breach cf the condition need not be in writing, but may be by parol, at least in a case where the policy is not attested by the corporate seal of the company, and is hence not a specialty.”

The eighth clause reads: “A local agent of a foreign insurance company, clothed with authority to effect contracts ’ of insurance, to fix rates of premium, to give consent to the increase of risks and change of occupation of buildings insured, to cancel policies on account of increase of risk, and exercise supervision over the property covered by policies issued at his agency, has power to dispense with conditions and waive forfeitures arising from a breach thereof, in the absence of any limitation upon his authority known to the assured. ’ ’

The ninth clause reads: ‘‘The foregoing powers are necessary incidents cf the general authority of the agent to effect contracts of insurance,-conduct the business at his agency, and do all things necessary and proper in the prosecution thereof.”

These several propositions are thoroughly reasoned out in an elaborate opinion in the case, prepared 'by Mr. Justice Beck, and his opinion is followed by a very' valuable note prepared by John N. Rogers, Esq. Other authorities are to the same effect, and we think fully justify the position that a waiver may be given by the agent so that the company may be bound notwithstanding the clause in this policy.

Another error complained of in this case is that the conditions as to the proofs of loss were not complied with.

The plaintiff testifies that she made out proofs of loss and sent them by mail to the company; the officers of the company testify such proofs were never received.

A witness by the name of Canfield testifies that he pre-paired proofs of loss for plaintiff and they were sworn tc before him; but, in any event, the plaintiff testifies that immediately after the fire,or shortly after the fire,she reported the loss'to King & Reed, and also a Mr. Beecher, and Mr. Beecher testifies that he is general agent for the company. The plaintiff testifies that Mr. Beecher told her there was no •liability on the part of the company. Mr. Beecher is put on the stand and does not deny it; he is not asked about it.

Lee, Elliott, Hile & Horner, for Plaintiff in Error.

Hart & Qanfield, for Defendant in Error.

Now it is well settled that if the company deny all liability, the proofs cf loss are dispensed with. When the company has notice of the fire and declares that in no event will it pay, there is no necessity of proofs of loss; but here it is testified that proofs of loss were prepared and sent by mail. We think there is no error in allowing recovery because of 'failure of the company to receive proofs of loss. It was sufficient to mail them,and a denial cf all liability is sufficient to relieve one from proofs of loss.

The judgment of the court of common pleas is affirmed.


author: Haynes, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    1888.)
    Before Bentley, Haynes and Scribner, JJ.
    STATE OF OHIO EX REL. MAGINNIS v. LOUIS H. PIKE ET AL.

      Refusal of court to issue process on the judgment — Remedy by petition in error in higher court, not by mandamus—
    Where, in an action for a writ of mandamus, it is averred by the relator that the lower court refused on motion properly made to order certain process on a final judgment heretofore rendered by the court, to which relator claims to be entitled,' his remedy is by petition in error in a higher court, -and not by a petition for a writ of mandamus.
    MaNdahus.
   Haynes, J.

In this case a motion has been made for an alternative writ of mandamus. That motion has been argued by counsel for the relator, and also for certain parties supposed to be interested in the question. The petition shows that the plaintiff, or the relator, was the sole executrix of the last will and testament of T. J. Maginnis, and proceeds to say that—

“Heretofore, to-wit, at the March term, A. D. 1882, of the district court of Lucas county, Ohio, there was pending in said court a certain civil acticn in which the First National Bank cf Toledo was the plaintiff, and John Fitoh, this defendant, as such executrix, and others were defendants; and that in said court, and on the fourth day of April, A. D. 1882, and at said term of said court, a final judgment and order was therein made by said district court wherein and whereby, amongst other things, it was provided that this relator as such executrix, and certain other defendants therein, were the holders of liens upon certain real estate owned by the said John Fitch and by him held by title in fee. ”

Then it proceeds to describe certain property, and says that an order was made that—

“Said real estate should be sold as upon judgment and execution, and that the proceeds thereof should be applied in payment of said several liens in the order of their priority therein and thereby established, amongst which -liens was and is a lien then and thereon fixed and determined in favor of ths relator in the sum of $12,094.84.
“That in and by said final judgment and order, it was amongst other things provided that said cause should be remanded to the court of common pleas o.f Lucas county, Ohio for execution and for further proceedings, and also that if said John Fitch should for the period of six months from the time of the rendering of said final .judgment and making of said final order,fail to pay the said liens in favor of the relator and others, that then said real estate should be sold, and the proceeds applied in payment of said liens as hereinbefore stated.
“That said final judgment and order in favor of the relator has been ever since, and now is, in full force, and un-reversed, and wholly unsatisfied, and there is now due thereon from said John Fitch, the sum of $17,430.88.
“That no mandate in said cause embodying said final judgment and order, or any part thereof, from said distriot court was ever made out or sent to the court of common pleas by the clerk of said distriot court, during the existence of said distriot court, and no mandate was ever made out or S,ent to said court of common pleas or received by the clerk of said common pleas or journalized by the clerk of said court of oommon pleas, save and except as hereinafter set forth.
“That heretofore, to-wit on the —--day of June, A. D. 1887, the olerk cf the circuit court of said Lucas county, Ohio, caused a full and true copy of said judgment and final order to be made, and appended thereto a certificate that such copy was a true and full copy of the said final judgment and order of said district court in said cause, and signed the same as the clerk of said district court, and affixed thereto the seal of said district court, and dated certificate as of the fourth day of April, A. D. 1882, which said copy of said final judgment and order contained therein, amongst other things, the order remanding said cause to said common pleas court for execution, and for further proceedings.
“That thereupon said copy of said final judgment and order, so certified and authenticated as aforesaid, came into the hands of, and was received by the clerk of said court of common pleas on or about the — ■—day of June, A. D. 1887, and thereupon said clerk of the court of common pleas caused the same to be journalized in one of the journals of said court of common pleas, and the same now remains of record in said journal, but there is upon said journal no statement or memorandum, showing the date or. time at which said mandate was in fact so journalized.
“That on cr about the said — —day of June, 1887, when said clerk of said court of common pleas received said copy of said final judgment and order, he falsely endorsed, and file-marked on the back of the same, to the import and effect that said mandate was received and filed in said court of common pleas, on the fourth day of April, A. D. 1382, when in fact the same was received only on said-- day of June, A. D. 1887, and also thed and there falsely entered a memorandum which yet remains on the appearance docket, containing memoranda in said cause when the same was pending in said common pleas court, and before the appeal to said district court, to the effect and import that a mandate had been received on the fourth day of April, A. D. 1882, from the clerk of said district oourt.
“That since said month of June, 1887, and on or about the fourth day of November, A. D. 1887, the relator fiied her oertaiu written precipe with the clerk of the court of common pleas of Lucas county, Ohio, and in his office, demanding that he issue to the sheriff of Lucas county, Ohio, an order of sale in said cause, directing the sale of said real estate aforesaid, and the application cf the proceeds thereof in' accordance with said final order and judgment, which precipe the said clerk then and there refused, and has ever since' refused to obey, or to issue the order of sale thereby demanded.
“That after said clerk had so signified his refusal aforesaid, your relator filed her written motion in said court of common pleas in due form, asking the order of said court upon said clerk, that he issue the order of- sale demanded by her said precipe, which motion afterward, tc-wit, on the fifth day of December, A. D. 1887, came on and was heard by said court, the aforesaid defendants then and there presiding and sitting in said court, and said motion was thereupon, after hearing thereof, by the judgment and order cf said court, refused and denied.
“That it was then and there the legal duty of said court, and of the said judges composing the same, to mate an order requiring and directing its said clerk to issue forthwith an order of sale to the sheriff of Luoas Gounty, Ohio, directing him to cause said real estate to be duly advertised and sold as upon judgment and execution, and tüe proceeds applied in accordance with the terms of said final judgment and order of the said district .court. ”

Then it sets out the names of the respective judges of the court,and avers that they are still in office. It further avers that lie is without remedy at law.

“Whereupon plaintiff prays that defendants be commanded forthwith to cause to be issued by the clerk of the court of common pleas of Lucas county, Ohio, an order of sale directed to the sheriff of said county, and commanding him to proceed to appraise, advertise and sell according to law said blocks five and seven (describing the property), and for the appropriation of the proceeds of such sale in accordance with said final orders and judgments of-said district court, and for other and -full relief.”

The case was very fully argued at the last term of this court, and there was quite a large citation of authorities. We have endeavored to give to the matter very full consideration.

The questions argued were, among others, very largely upon the effect of not issuing the mandate in any supposed proceedings in the court of common pleas, between April, 1882 and June, 1887 — cf course there were other questions involved.

It will be perceived that the prayer of this petition is that the court of common pleas be ordered to issue an order of sale upon the record of a judgment of the district court which is said to have been collected in the court of common pleas. It is averred here that the clerk of the court has falsely entered upon the appearance docket and put a file mark upon the back of a journal entry sent down from the district court that it was filed in 1888, when the fact was that it was filed in 1887. The judgment is of such a nature as that we understand, under the decisions of the supreme court, it does not become dormant, and if the plaintiff was entitled at all to his order of sale, he would be entitled to it as well if it had been filed in 1882 as he would if it was filed in 1887 —'SO far as the life of the judgment is concerned, it is not a dormant judgment. Still the pleader has, for reasons satisfactory to himself, averred that the mandate was not filed until 1887, and that these endorsements have been falsely made, and he avers that since the date of the filing, in 1887, there has been no process issued upon that decree.

In the view that we take of the case, we shall not discuss a good many of the questions that have been raised here. There were some very important questions underlying this proceeding in some form. The question is as to how far the court — this court — may hear evidence for the purpose of showing that the file mark made upon this appearance docket and the file mark made upon the back of the mandate sent down to the court of common pleas is incorrect, is certainly a very important question, and one that there have been some decisions of the supreme court in relation to, as we understand the decisions.

The question also as to what the effect of the non-filing of the mandate in the court of ccmmon pleas, or spreading it upon the journal,may have upon the order of sale, in either view, whether issued in 1882 or 1887, is certainly a very important question, and one which we do not propose to dispose of the present time.

The statute with regard to mandamus, sec, 6742, Rev. Stat., provides that the writ can only be issued by the supreme court, or the district court; “and although it may require an inferior tribunal to exercise its judgment, or to proceed to the discharge of any of its functions, ■ it cannot control judicial discretion.”

The petition distinctly avers that the relator made motion in the court of common pleas, which was heard by that court, asking that court to cause an order of sale to be issued by the clerk of the court upon this decree or judgment. That motion is based upon a conclusion found in sec. 6707, Rev. Stat., which is:

“Any order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order which may be vacated, modified, or reversed, as provided in this title”

And we suppose this motion is properly described as a summary application in an action after judgment. The clerk of the court had refused to issue upon a precipe of the party the final process of the court, and an application was made to the court of common pleas to order him to issue the final process — a process without which a judgment would be practically, to her, a nullity. That, the court of common pleas refused to dc — lor what reason, is not set forth in the relator’s petition — and cf course need net be, as it is not material here: it is sufficient to know that the court, sitting as a court, on the motion made in' this action for the final process of the oourt to carry into effect the judgment found upon its journal, refused, after hearing, to make such order.

Now the question is — in the first instance, whether or not the party plaintiff here has an adequate remedy at law?

It seems to us beyond question that the party had a right tc take a petition in error to this court; and from this court to the supreme court, for the purpose of reviewing the acts of the ccurt of common pleas,and, if that court had erred in its refusal to grant the party a final procss, the action of the court would be reversed by the higher court, and this mandate then issued to that court to proceed according to law to carry the judgment into effect according to the decision cf the superior tribunal. We are very well acquainted with the opinion that that is the true remedy of a party— that h3 has an ádequate remedy at law, and that this will be in conformity with the mode pointed out by the statute for the review of the action of the court of common pleas, where it is alleged that it has committed an error in the hearing of any matters properly presented before it for its adjudication or judgment or order.

We have been cited to Hollister v. Judges, etc., 8 Ohio St., 201, as one affording authority to this court tc make this order. In that case the record disclosed that the eause had been heard in the district court of Lucas county, and, upon final hearing of the case a bill of exceptions had been taken to seme proceedings or ruling of the court, which had been signed by the judges of that court and filed with the clerk, and that after that the court had adjourned, and, in the absence of two of the judges of that court, and without ■consultation with them in any form,one of the judges of the court had erased from the bill of exceptions a material portion thereof; and the prayer of the writ was that the court order the judges tc restore to the bill of exceptions that part which had been erased. To that an answer was filed neither affirming nor denying the action of the court, but simply, by way of courtesy to the supreme court, suggesting that since the trial of that case two of the judges who sat in the ■ ease had gone out cf office and their terms expired; that other judges had been elected to succeed them, and that at that time only one of the judges who then composed the ocurt was then holding office. It was further suggested that they were judges of the court of common pleas, and n'ot judges of the district court,and that therefore an order upon them would be invalid,and that they had no authoritj todo an act required by the supreme court. But the supreme court held that they were judges of the district court; that no matter that others had gone out and others had gone in, that still the judges of the court of common pleas were the judges of the district court,, and they were compelled to act upon their own information, or knowledge, or recollection of the facts of the case; that they might give notice to the parties and receive the evidence and make an order upon the parties te the case which would bind them; and thereupon they issued the peremptory crder prayed for by the' relator in his petition.

It will be perceived in this case that there is no prayer here that the court of common pleas be required tc crder their clerk to correct the record. The pleader proceeds upon the theory in his allegations that the facts in the case shewing that the mandate was not in fact actually filed in the office of the clerk of the common pleas until 1887, that that is sufficent to entitle him to an order for the issuance of the execution.

But the fact still remains, that by the file mark upon the back of the paper, and by the entries in the appearance docket,that the paper was filed in that court in April, 1882.

Section 4958, Rev. Stat., provides as follows:

“The clerk shall enter on the appearance docket, at the time of the commencement of an action or proceeding, the names of the parties'in full, with names of counsel,and forthwith index the case, direct and reverse,in the name of each plaintiff and defendant; he shall also enter, at the time it occurs, under the case so docketed, the issue of the summons, or other mesne process or crder, and the filing of each paper; and he shall record in full the return on such writ or order, with the date of its return to the court, which entry shall be evidence of such service.”

Section 4961, Rev. Stat., as follows:

“The clerk shall endorse upon every paper filed with him the date of the filing thereof; and upon every order for a provisional remedy, and upon every undertaking given under' the same, the date of its return to his office. ”

It is said in the petition that the clerk when he -filed — journalized — this judgment which came down,failed to state on the journal tho date of the filing. But it may be suggested that we find nowhere any statute requiring him to do so; indeed, it is said in an early case under the old practice, that the proper practice would be for him to state on the journal that he received at suoh a time the mandate which he copied cn the record; and so, so far as it is contemplated by the statute, it would seem that the record evidence of the filing of the papers is to be found upon the appearance docket and by the file mark upon the back cf the papers, and, by that datum, there is no proof here of the record being corrected in any manner, and we are called upon to order a court to do that which they have decided, after a full hearing, they would not do. Of the correctness of that decision we do not know. The presumption is that they decided it upon the law and the facts w'hich were presented to them. The petition does not aver that that was the evidence upon which it was heard there,and all the evidence. In Hollister v. Judges, supra, it was deeided by a majority of the court, Judge’ Swan dissenting, but wre feel very sure in cur own mind, that where the petition sets forth that there has been a hearing upon this motion and the action to the oourt upon the faots, that the only remedy is for the party to take the petition to the higher courts, and, for that reason, the motion for an alternative writ will be refused. We do this with less reluctance because,upon refusal to grant the alternative writ, the party has a.right to proceed immediately to the supreme court and apply for an alternative writ, and without great difficulty, can thus bring speedily this writ before the very highest tribunal in the state, whose decision will be binding as to relator’s right to have the alternative writ.


text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Smith and Swing, JJ.
    SHINER v. THE VILLAGE OF NORWOOD et al.

      Status of property with reference to street improvement fixed at time improvement is ordered—
    (1). Ihe assessment of property for a street improvement is fixed iJ.ll by the status of the property at the time of the passage of the , ordinance to improve.

      Assessment on tract of land afterwards subdivided — Entire assessment charged on lot last sold—

    (2). Where the assessment was imposed on a tract oí land which was afterwards subdivided into and sold in lots, and whereby, the deeds of conveyance, the burden of the entire assessment was placed on the lot last sold, the municipality may treat such lot as subject to the assessment imposed upon the entire tract.
    Appeal from the Court of Common Pleas of Hamilton county.
   A resolution was passed by the Norwood council in 1891, without petition from abutting owners, for improvement of Williams avenue. • At that time W. M. Fridman owned a lot abutting 111 feet on Williams avenue and 214 feet on Elsmere avenue. The Fridman tract was subsequently subdivided into four lots fronting on Elsmere avenue, which were all sold to different parties. This left only one .of the four lots, the one in the corner, abutting on Williams avenue, and the assessment which it was originally intended should fall upon the entire Fridman tract, was placed against the one lot in the corner, now owned by the present plaintiff, who set up the claim that her lot was only bound for one-fourth of the assessment, and that the village had no right to place the whole assessment upon it.

Smith, J., holds that the whole Fridman tract was liable to be assessed for the improvement of Williams avenue— that under the decision in Douglass v. Cincinnati, 29 Ohio St., 161, the property liable for this assessment was determined by its status at the time of the passage of the ordinance directing the improvement, and the liability thus attaching is not affected by subsequent conveyances and changes an the title. The better course, therefore, would have been for the village to have'placed the assessment on .all four cf the lots constituting the original tract instead of selecting one lot and attempting to hold it for the whole assessment. It might well be that as between the owners of the different lots in which the original parcel had been divided, equities would exist which as between them would make it obligatory upon the owners of some other of the lots to assume the burden of the assessment, and in such case a court of .equity would not allow a part of a lot, upon which a village had (arbitrarily it might be) attempted to place the whole of an assessment which was a burden originally upon all, to pay the whole amount.

Rut the case is different where it appears that by contract or otherwise the burden lies upon one of the lots. In the ease at bar the other three lots were sold with covenants of warranty as to the assessment, but the deed for plaintiff’s lot, whioh was the last one sold, contains no such covenant, and she is therefore not equitably entitled to prevent the village from placing the whole assessment upon her lot, though the village may not have acted in the best manner is so doing. Moreover, where a lien attaches to land which is sold in parcels tc different persons, *if the lien is enforced at judioial sale,the parcels must be sold in the inverse order of the alienation, which would mean in the present case that the plaintiff’s lot would be first liable,and that for the whole amount.

Fred Close, Jr., for ihe Plaintiff.

W. E. Bundy, for the Village.

Petition dismissed, but without piejudice to any right the plaintiff may have to call upon the owners of the other lots, or either of them, to share the burden with her.


author: PRICE, J.

text:
    (Third Circuit—Allen Co., O., Circuit Court
    Nov. Term, 1898.)
    Before Day, Price and Norris, JJ.
    CENTRAL TRUST CO. v. OHIO SOUTHERN RAILROAD CO. ET AL.

      R. R. car lease — Insolvency of R. R. — Rights of car lessors—
    Where the court appoints receivers of the property of a railroad company, and directs them to join the company in the execution of a lease, consolidating former leases of rolling stock, the terms of which have not yet expired, the purpose and provisions of which consolidated lease are to provide a lower monthly rental and extend the period of the leases — but leaving the title to the rolling stock in the lessors, with conditions of forfeiture for non-payment of the rentals and other breaches of the covenants, such consolidated lease is not a sale of the rolling stock to ihe receivers, and the lessors are entitled to preference over the bonded indebtedness of the railroad companny, only for the rc4'als which accrue after execution of such consolidated lease • and during the existence of the receivership.
   PRICE, J.

This is the case of the Central Trust Company against the Obic Southern Railroad Company and other defendants, among whom are the defendants known as “The Car Trust Corporations. ”

The property of the Ohio Southern Railroad Company has been sold, and the.controversy before the court on appeal from the lower court, is between the Central Trust Company, of New York,and what will be termed the “Car Trust Corporations, ” over the proceeds of the sale and their distribution.

The Central Trust Company of New York is the holder of two mortgages or deeds of trust on the property of the railroad company; one was orea ted on the twenty-third day of May 1881, and was made to secure the payment of the sum of four million dollars of bonded indebtedness and the accruing interest, and the second mortgage was executed on the first day of October, 1889,on the same property, to secure a bonded indebtedness of two million dolíais and the accruing interest thereon. These mortgages are in form of trust deeds, and their execution was duly aukhorized¡by the stockholders and directors of the railroad company, and were duly ■reoorded. The railroad oompany made default in the conditions of these instruments and failed to pay the indebtedness as it matured, and the Central Trust Company has obtained a decree of foreclosure and order of sale on each of its said liens. It claims that by the terms of the trust deed ■of May 28, 1881, it has the first and best lien on all the property of the railroad company, and by virtue of the second deed of October 1, 1889, it has the next best and second lien on the property, and it now asks that distribution be made accordingly, except, that certain outlays and other claims growing out of the receivership may be paid, but all suoh questions are net in contest here, and we give them no further attention, as counsel seem to agree upon their disposition?

The companies, termed the Oar Trust Corporations, claim a precedence over the liens created by the said trust deeds in the sum of about six hundred and eighteen thousand four hundred and forty-six dollars, and their demand is founded upon certain car leases- — -three in number — -and especially what is called a “Consolidated Lease” of December, 1895, coupled with the findings and order of the court of common pleas, authorizing the receiver to execute such lease, which order appears under date of January 6,1896. The lower court construed the consolidated lease and the order authorizing the receiver to execute it, to be a sale of the rolling stoek-to thb receiver for said sum of $618,446, and that the amount is the first lien on the proceeds of the sale. From this decision the plaintiff has appealed to this court.

The conditions and terms of these various leases and the order of the court, are cf first importance, and a thorough understanding and proper construction of them will free the •case of all difficulty.

In November, 1892, the Bristol and South Wales Railway Wagon Company and two other companies named, entered into a contract with the Ohio Southern Railroad Company whereby they leased to the latter company one thousand *^ars, the tenancy to commence from the first day of February 1893, and end on the first day of February 1900 — 'a term of seven years, at a yearly rental, but payable in eighty-five monthly installments, for which rental warrants,coupons or note* should be made.

The first party to this contract is designated as “Lessors”, and the railroad company as the “Tenant.” These cars were to be made by a company named, and it stipulated that the cars when made and ready for delivery shall become the absolute property cf the lessors respectively as provided. Each oar was to bear upon it a cast iron plate on which should appear the name of the lessor as the owner of such car, and such other marks or insignia of ownership in such lessor as. it., or its agent, at any time may see fit to use; and such, .cars should be numbered as directed by the schedule of lessors endorsed on back of the lease.

The consideration to be paid by the railroad company for the use of the cars,is called “rent”, in the contract, and in all its provisions the parties are described as lessors on one side and tenants on the other. The tenants were to make all repairs, and on notice from lessors or their agent, the railroad company, tenant, was obliged to make repairs, and the plate or other insignia of ownership must be kept on each car at all times during said tenancy as the lease reads, for the purpose of making the ownership “publicly known;” if the plate should be defaced or lost the tenant should restore it at once.

By another provision, the tenant is prohibited from assigning, or underletting said oars, without consent of the. lessors, and the tenants shall insure and keep up the insurance; and the tenant is forbidden the making of any alterations in any car without lessors to whom the car belong, “oonsents thereto.”

If default is made in payment of rent, and it is not paid within seven days aftsr demand for the same in the form set cut, or if the tenant by any means suffers or allows any of the oars (except for interchange of traffic) to pass out of its possession without the written consent of lessors, or suffer the name, plate of other insignia of ownership of lessors to be removed or defaced, t.he lessors, or either of them, or their agent, may demand in writing the delivery of the cars, and the tenant agrees that within thirty days from the re-oeipt of suoh delnand, to deliver up said oars on its road at suoh place as may be designated.

By the 14th clause it is provided that in consideration cf suoh several eighty-five payments during the term provided for, and all other sums due thereunder and interest due thereon “and the same being fully paid to the lessors, they, the lessors, will at the expiration of the said term of seven years herein provided for, sell said cars to the tenant as follows: for the sum cf ten cents p6r car in United States gold coin * * * and upon such payment and if promptly made, time being the essence thereof, that then said rolling stook, as set out in the schedule endorsed theron, shall be and become the absolute property of the tenant. ” * * *

There are other stipulations in the instrument, but they are not important here; but taking it altogether, it is a lease with the right to buy and sell at the close of the term at ten cents per car in gold if all rents and other dues shall have been then fully paid. But if no sale, and the parties-cannot agree as to the condition cf the car, the difference should be left to arbitration, but the tenant is liable fcr rent until the acceptance of the award.

The other two leases are very much like the first. By one, two hundred cars are leased; by the other, five hundred and fifty cars. One is for seven years from April 1, 1893. The term of the other is seven years commencing March 1, 1893. The terms of rental on each are provided; the owenrship in the lessors of the cars clearly stated, and in each it is provided that any modifications as to the payments or other matter, shall not affect the whole amount for the term or affect the title of the lessors in the property. There are other provisions guarding carefully the title in the lessors. There is a clause which, in certain contingencies of ncn-payment, authorizes the lessors to take possession of the cars and sell the same and apply the proceeds on rentals, and at the clcse of each of the latter two leases, there is a right to sell the oars, if all the arrears shall be promptly paid. '

In December, 1895, after the railroad property passed into the charge of a receiver, another instrument was executed, which is known as a “ocusolidated lease,” and it is headed a “supplement to lease 82” (The first one above noticed),and leases “Ka” and “Kb”, in which all the lessors in the first lease join, and it contains many features similar to those in the originals. The names of the first parties are designated as “ieHsorSj” and the ether party “The Ohio Southern Railroad Company” and Joseph R. Megrue and Nelson E. Matthews as receivers of said Railroad Company acting in obedience to an order of the oourt of common pleas of Allen county, state of Ohio, made and entered the sixth day of January, 1896, in a suit now pending in said court entitled Rousculp v. The Ohio Southern Railroad Company herein called “the tenants.”

This consolidated lease recites the jfailure of the Railroad Company to pay the rentals as they became due on each of the original leases; and recites the existence of the receivership and that the receivers were without funds to pay the rentals, and that neither the railroad company or the receivers were able to pay the current rentals in full as they are now reserved, without embarrassment to the operation of the road; and further recites that “the receivers have requested the lessor to modify the terms of the said several existing leases so as to extend the payments due under the terms thereof over a longer period of years than is herein provided, and to reduce the amount of the monthly rentals as therein reserved; but not to abrogate the said several leases nor to modify or change the force and effect thereof, except as aforesaid in respect to the amount of monthly payments and the extension of the dates when they shall fall due respectively. ”

It is further stated'that the court has authorised the receivers tc join the railroad company in the execution of the new lease; and it then provides that the tenancy shall commence from the seventh day of November, 1895 and end on November 7, 1905, a term of ten years. The 1750 cars are brought within the consolidated lease, and the rentals are divided into one hundred and twenty monthly payments to be represented by warrants and coupons.

It is stipulated in the 5th clause, “that at the end of the tenancy by expiration of the term or otherwise, the said tenants shall and will deliver up and surrender said cars to the lessors respectively as aforesaid, of their agent in proper and complete repair and working condition, less the fair wear and tear, (unless the cars shall be purchased as provided in clause 11) at Springfield Ohio.”

And in case of a disagreement between either lessor and the tenants as to the condition of the oars at the end of the term, the same shall be arbitrated etc., etc.

The 6th clause provides for repairs, and the 7th, the placing of the iron plate on each car to show the ownership of the lessors and the same shall be kept on the cars, replaced if lost, etc.

The 8th clause forbids the underletting or transfer of the oars, and that the tenants shall pay the taxes and maintain insurance.

The 9th olause prohibits any alteration of the cars without consent of the lessors. By the 10th clause it is agreed, that if default is made in payment of rental for a certain number of days after written demand therefor, or if the tenants allow the cars to pass out of their possession, etc., the tenants shall within thirty days after the demand “deliver up to the lessors or their agent each and every car at such place or places as may be designated;” or the lessors or their agent, “may seize, remove and take away the said cars or any of them whether loaded or unloaded, with or without process of law,” and by writing put an end to this agreement.

By the 11th clause it is provided that in consideration of the one hundred and twenty payments during said time (ten years) and all other sums due, the lessors will sell said cars to said tenants for ten cents per car in gold coin and on •prompt payment, time being the essence, the rolling stock shall become the absolute property of the tenants.

The 12th clause is not of importance in determining the question before us.

The 13th clause, however provides, “that this agreement is made upon the express condition that it shall not operate as a cancellation of any of the agreements recited in the preamble to this agreement, nor so as to defeat or modify any of the rights, property or interest of the lessors or any of them, in and to the said railway cars as the same existed under the terms of said several agreements, exceptas to the amounts and dates of the monthly rentals; it being understood and agreed that it is the sole intent and purpose cf this present agreement, to reduce the amounts of the monthly rentals as fixed by the terms of said several agreements and to extend the dates upon which monthly rentals are to be paid over a longer term of years. * * *”

This is the instrument which the court of common pleas authorized the receivers to execute, and what is it? The parties to it call it a lease. They denominate themselves as lessors and tenants respectively, and all the wording and all clauses are such as are fittingly used to make up a lease. The three original instruments which have all the characteristics of leases, were not abrogated or supplanted by the new instrument. On the contrary, it is expressly stipulated, that they'remain in full force and effect with all the powers therein conferred on the lessors, and that the sole and only purpose of the new contract as to reduce the amounts of monthly payments and extend their date over a longer period of time. The same conditions for forfeiture for non-payment; for allowing the oars to pass out of the possession of the tenants; for not maintaining the pla'te on each car showing the ownership of lessors; which were in the original contracts are in the new. All the ligaments by which the “Car Trust Corporations” held the rolling stock in the old contracts, are embodied in the new. And nowhere in it is there the privilege or right to buy and sell until at the end of the term, when all rentals and other dues must be fully satisfied. Net until that period could the railroad company, or the receivers demand and enforce a transfer of title to themselves and terminate the covenants of th9 leases. And not until that period could the lessors rightfully demand payment of more than the monthly rentals and such other dues as may arise under the contract. The parties have carefully and clearly postponed any transfer of title to the end of the term, and then it is dependent upon all payments being made. Not even at the end of the term, and when all payments have been made, is the tenant bound to take the cars The tenant has an option to do so and may deoline, and then, if the parties cannot agree as to the condition cf the cars which are to be surrendered, arbitration shall be resorted to, to settle all differences, pending which rentals still accrue.

If there can be a single element of sale gathered from either of these contracts, it is of a conditional character, a conditional sale, with title all the time remaining in the “Car Trust Companies,” until the last dollar has been paid according to the agreement, and also every other condition complied with.

It is claimed, that when the receivers took charge of the railroad, the lessors had been paid on rentals a sum equal to a considerable part of the total value of the cars, and that the cash price on delivery of the cars was above ordinary rentals and should be considered as a partial payment on a purchase price, and that the parties contemplated a sale and purchase in the manner in which cash and monthly payments were provided for in the contracts.

It may be and we might assume that when the “Car Trust Corporation, ” known as lessors, entered upon negotiations with the railroad company for the manufacture and use of the rolling stock, they calculated the total cost of the cars to be furnished by them respectively, and, took that sum into account in fixing a basis from which to compute what they desired as payment on delivery of the cars and the monthly rentals, and counted that all such payments having been made when the end of the term should come, they would be fully compensated for their investment, and interest thereon, so that the cars could become the absolute property of the railroad company. This seems to be the plan adopted in framing the terms of the consolidated lease.

What change does this faot work in the construction of the contracts? It is not uncommon that a landlord may fix the rentals of his property at a certain per cent, on each. dollar invested in the leased property He may go further, if he can procure such a tenant, and add to the monthly or yearly payments, a sum which,when it is added tc the rentals at the end of the term, will aggregate the value of the property and a rate cf interest thereon during the term, on payment of which the property will pass to such tenant. Parties may agree to such terms, and if complied with, the property may thus be acquired. But the title remains in the landlord until the end cf the term, and it may be of essence in such contract, that the payments shall continue during the term, .and not be paid in advance. The tenant would have no right, unless so written, at* the end of half his term, to advance all the remainder and compel the delivery of a deed, because the payments have been fixed otherwise and the tenant would have no right to break up and terminate an arrangement, which might defeat the very purpose of the landlord in entering into such a contract. Of course the death of one or other of the parties, or some such event might happen, as would require a court of equity to intervene m order to protect the rights of parties.

It is olaimed here, that a court of equity has intervened on account of the insolvency of the railroad company, whereby its property passed into the temporary control of the court, and its receivers, and that the court made an order, when it authorized the receivers to join in the execution of the new contract of December, 1895, which modifies the stern provisions of the former leases, and takes the case we have out of the control of such provisions.

Ordinarily and generally,-insolvency and inability tc pay does not abrogate cr rescind a contract; and we think it a safe and wholesome doctrine that courts are not to be used to sanction the destruction of contracts, because of insolvency and inability to pay; and we think the court of common pleas, was not so used in making the order of January 6, 1896, wherein the receivers were authorized to join the railroad company m the execution of the consolidated lease.

Counsel for the “Car Trust Corporation” claim much for this order, and the fact that its entry was consented to by the Central Trust Company, and we will examine it.

After reciting the date and names of parties to the original contracts, the entry proceeds to find, that all the rolling stuok described in said leases, “is essential to the effective operation of the railroad and the defendant railroad company, and that the loss of any portion of the said equipment would impair the earning powers of the said company, and that the prices for all of the said equipment under the respective leases, as determined by the amount remaining due thereon, are less than similiar equipment would cost if purchased at the present market prices; and it further appearing to the court, that under the terms of the three several leases, there was due on the seventh day of Npvember, 1395, the sum cf $189,270.04 in overdue rentals, with interest thereon, for the use of the rolling stook leased by the said three leases in the aggregate; and it furher appearing, that including said sum of $189,270.04 there will remain due under said leases the aggregate sum of $618,456.04; and it further appearing that the said car trust corporations have agreed to make a supplemental agreement for the said rolling stock covered by the said several leases to the said railroad company, and the receivers thereof, at the valuation on the seventh day of November 1895, cf the capital sum of $618,466.04 for the term of ten years upon monthly rental of $6,559.79 for one hundred and twenty consecutive months, with a provision nevertheless that in order to meet the financial requirements of the said railroad company and its receivers and of the other parties hereto, the said car trust corporation shall for the first forty-two months of the said term of the new-consolidated lease, accept the sum of $6,000.00 per month as partial payments of said monthly rental of $6,559.79, and shall extend the remaining balance of $559.79, and shall extend the remaining balance of $559.79 per month oyer the remaining seventy-eight months, so that the monthly rentals for the remaining seventy-eight months shall be $6,948.68 per month; now therefore it is ordered, adjudged and de-oreed, that the said the Ohio Southern Railway Company, defendant herein, and the said Joseph R. Megrue and Nelson E. Matthews, the receivers thereof, are authorized and instructed to make and execute a new consolidated lease or car trust agreement with the said car trust corporations, based upon the amount due and to become due, under the terms of the said several existing agreements, which sum is ascertained and agreed to be the sum of $618,46.064, whioh consolidated agreement shall be for the term cf ten years from November 7, 1895,” etc.

The order proceeds to state that the monthly payments'' shall be $6,000.00 for the first forty-two months and $559.79 accruing on each of those months, in addition to the $6,000.00, to be apportioned over the remaining seventy-eight months. The consolidated agreement contains the same provisions as to the payment of rentals stated in the other.

There is no authority in this order to purchase these cars. It is an order authorizing and directing the receivers to execute the consolidated lease. We have seen that it is a lease, and if the lower court intended to change its character from a lease or conditional purchase and sale,there was the opportunity to so order, and if such an order had been assented to by the Central Trust Company, we would have a different question. No purchase was authorized, none’contemplated, and none made.

The 3rd finding of the court of common pleas, preceding the order of January 6th, shews that a purchase was not directed, ncr can the power of purchase be implied from it. , Every line in that order negatives the idea of a purchase and sale. And that nothing should remain in doubt, another portion of the order speaks as follows: “It is further ordered, adjudged and decreed, that the new consolidated agreement or lease shall not operate to abrogate or terminate the said three several existing agreements or leases between the said trust corporations and the said railroad company, but shall operate only so as to extend the time within which th3 payment for the rolling stock covered by said leases shall be1 fully made and to vary and reduce the amount of the several monthly payments so as to conform to the terms of this order as above set out” By this paragraph the court gave a construction of the new consolidated lease and the language is too plain to excite dispute. This rolling stock is still under lease and there is no provision in it making the payments of rentals a lien on anything, much Jess upon the railroad and other property of the railroad company. The car trust companies, for their protection retained title in the cars, hedged about with the most stringent provisions for their repair and proper use, with a condition of forfeiture if the conditions should be violated. These conditions and provisions were yet in force and none of them have been removed by the order of January 6, 1896.

It has been presented to us in argument, that the claim to preference by the “Car Trust Corporations” over the liens of the trust deed on the proceeds of the sale, is founded on equitable principles, and that, under all the existing ciroum-stances, it is but just, that their claim should have preference. It is urged that the cars are cn the line and will be needed by the purchaser of the road and its property and so on. The latter position is but begging the question. As to the claim being founded on pinoiples of equity, let us consider for a moment. We are asked to treat the leases as a sale, which they are. not, and we are asked to work some mysterious transformation of the contracts and rights of the parties,so that the unintended shall happen, and that contracts which are leases executed several years after the trust deeds were recorded, shall be now a first lien on the property of the railroad company by decree of the court. No satisfactory reason for this demand has been presented. Equity does not counsel or suggest violation of oontraots or the invasion •of contract rights. To grant the demand now made would accomplish both. The Ohio Southern Railroad Company is insolvent and unable to buy. The receivers have not purchased, and we are now asked to compel the Central Trust ■Company, not a party to either contract to unwillingly purchase and pay for these oars, not only what may be now due, but in advance, what would mature during the balance of the terna of six years. The car trust companies are now willing to sell, and have asked the court to furnish a purchaser. Such is the legitimate effect of the order we are requested to make. There is no ground in equity, surely none in law, for it to rest upon. It cannot be made.

Again it has been argued, that counsel for the Central Trust Company was present at the time the railroad property was sold, and that the masters who conducted the sale, read and announced to the bidders, that the court of common ' pleas had ordered the claims of the “Car Trust Corporations” to be recognized in the sale as preferred, and that it was announced that the purchaser would get the oars as a part of the sale, etc.

What of it, if true? It is from the order of distribution that we have the case on appeal; but while that order was in force, although still contested by the Central Trust Company, it would have been imprudent, if not in contempt of that order, for counsel to have interferred at the sale and contradicted the statement made by the officers of that ■court. Surely no one will insist for a moment that the silence of counsel on that occasion works an estoppel of their ■contention here.

On the whole case, we are unanimously of the opinion, that there is no equity in the olaim of preference of the “Car ‘Trust Corporations,” and we find against them on the issue presented to us. They have no lien, and therefore no precedence over the appellant in the proceeds of sale, except as .to the rentals due during the receivership.

Doyle & Lewis of Toledo, O., for Plaintiff.

Oole.& Potter, of New York; Judge Olds, of Columbus, O., for Defendants.

As we have seen, the consolidated lease of December, 1895, provided for the term of ten years from November 7, 1895, at a monthly rental of $6,559.79 per month, but to meet the financial requirements of the railroad company, and its receivers, the Car Trust Corporations agreed to accept for the first forty-two months the sum of $6,000, as partial payment of said monthly rental and extended the remaining sum of $559.79 per month over the remaining seventy-two months.

We, therefore, order, that as a preference to the bonds secured by the first and second mortgages of the Central Trust Company, there be paid from the proceeds of the sale of the railroad property the sum of $6,000.00 per month from May 8, 1896 (the date of the last payment of rent made by the receivers), until the receivers are discharged, with six per cent, on each monthly installment from the day it matured; and also with like order of preference, that there be paid $559.79 per month at its present worth for each month commencing on the seventh day of November, 1895, continuing until the discharge of the receivers. The receivers, from proceeds of sale, shall cause tc be made all repairs of oars oalled for by the consolidated lease of November 7, 1895, and also restore all cars which have been destroyed, which is also provided for in said lease.

This cause is remanded to the court of common pleas for the execution of this decree.


author: Hale, J.

text:
    (Eighth Circuit—Cuyahoga Co., Circuit Court
    May Term, 1895.)
    Before Caldwell, Hale and Marvin, JJ.
    CROSIER v. McNEAL.

      Partnership — Dissolution—Notice to former dealers—
    (1.) The rule relating to notice of the dissolution of a partnership is essentially different as applied to former dealers with a firm, from the rule which relates to subsequent dealers only. If the retiring partner desires to exempt himself from liability for the debts of the new firm, contracted with a dealer of the old firm, he must cause actual notice of his retirement from the firm to be given to such former dealer. But if the former dealer gets the information from any source of the dissolution of the firm, it would answer the purpose, so it be actual notice.

      ■Same — Who not to be considered former dealers—

    (2.) Where two partnership firms had had some dealings together, and four years, during which time both of the firms had been dissolved, had elapsed since the remaining memner of one of the firms, who continued its business, had dealings with one of the members of the other dissolved firm, the latter will not be considered a “former dealer” so as to entitle him to actual notice of the dissolution of the other partnership.

      Information in booh of commercial agency—
    (3.) Where the book published by a commercial agency, in general use at the time among commercial men,and to which the party has access, con tai ns the information thatthe words “& Co.” in a name under which a party does business, are nominal only, it is a circumstance which should go the jury, and it is error in the court to exclude it from the evidence.
   Hale, J.

The case of William Crosier, Plaintiff in Error, v. Samuel C. McNeal, Defendant in Error, is a proceeding in which the reversal of the judgment of the court of common pleas is sought. The errors assigned are several. I will first notice the errors assigned to the overruling of the motion for a new trial. We were asked by counsel, to carefully read this entire record, and have done so; and have given theoasea very careful consideration.

It must be oonceded that from 1888 to 1890 a partnership existed between William Crosier and George W. Crosier; any finding of the jury against that preposition would be against the weight of the evidence.

Further, upon the question as to the dissolution of that firm, we think that any finding of the jury holding that the firm was not dissolved in 1890, would be against the weight of the evidence; that the testimony clearly establishes as between the brothers, George W. and William, the firm was dissolved in 1890,so that at the time of the transaction here complained of, no partnership in fact existed between George W. and William Crosier.

The claim in controversy is based upon two bills of exchange or drafts, given by George W. Crosier to McNeal, cr acceptances in favor of McNeal, one dated September 6, and the other October 6, and an aocount for goods sold by McNeal to George W. Crosier & Company on the 6th of October, 1892, aggregating something ever $1,200. Then the liability of William cannot bo based upon the fact that he was a partner with George W. as between themselves. Finding as we do, and as the jury should have found, that the partnership that existed prior to 1890, was in that year dissolved, it becomes essential to inquire whether William, although uot a partner in fact, with George W. Crosier, is liable for this claim for any other reason.

The dissolution occurred in 1890. The usual notice of the dissolution of that firm was published in a local paper, of the general circulation a paper printed in a town of the size of Wellington would have, and the ordinary steps taken hy the firm, to cause it to be known to the world that a dissolution had taken place. And so far as this record discloses, it would seem to have been well understood in the neighborhood where the firm was doing business, that such dissolution had taken place. And we think it was sufficient to exempt William Crosier from any liability for the dehts of George W. Crosier & Company, contracted afte’’ the dissolution, with persons who had not been dealers with the firm prior to the dissolution. So that,as to the customers of the new firm, or of the firm after the dissolution, ha would not be liable.

But it is claimed that MoNeal was a dealer with the firm of George W. Crosier & Company while William was a partner of that firm, and that the transactions between McNeal and such firm were such, as to constitute McNeal what is known as a-fcrmer dealer with the firm of G. W. Crosier & Co. ■

The rule relating to notice of the dissolution of a partnership is essentially different, as applied to former dealers with a firm, from the rule which relates to subsequent dealers only. I suppose the rule to be, that if the retiring partner desires to exempt himself from liability for the debts of the new firm, contracted with a dealer of the old firm, he must cause actual notice of his retirement from the firm to be given to such former dealer. I do not mean that, if the former dealer gets the information from any source of the dissolution of the firm, it. would not answer the purpose, but actual notice is required in such case; hence it becomes essential to inquire whether Samuel C. McNeal was a dealer with the firm of George W. Crosier & Company while Wiljie Crosier was a member of that partnership.

The facts bearing upon that proposition are not disputed. Cassidy & McNeal were, prior to, or oerhaps in the year 1888, partners, doing business in Summit county, at Peninsula, under the firm name of Cassidy & McNeal. The dealings, it appears from this record, tlaat are relied upon as fixing the status of McNeal as a former dealer with the old firm of G. W. Crosier & Co., were transactions that took place between Cassidy & McNeal, the firm at Peninsula,and George W. Crosier & Co. They were sales of cheese from Cassidy & MeNeal to George W. Crosier & Co., in 1888. The firm of Cassidy & MeNeal dissolved shortly after these transactions. MeNeal at the time cf the transactions in controversy in this action, was doing business in Akron by himself; Cassidy had gone elsewhere,and was doing business either by himself or in connection with others. Nearly four years had elapsed between the dealings cf the firm of Cassidy & Me-Neal, with George W. Crosier & Co., in 1888, and the transactions out of which this controversy grows, and we hold that considering the length of time that had elapsed; the fact that the dealings were between the firm of which Me-Neal was a partner, and the firm of George W. Crosier & Co.; that no individual dealing had ever; taken place between George W. Crosier & Co., and MeNeal; that MeNeal cannot be considered, and does not fall within the term of former dealer of the old firm, and is not to he so regarded in settling this transaction. The books cf the firm of George W. Crosier <§; Co. would not contain the name of Samuel C. Me-Neal. The dealing was with the firm of Cassidy & MeNeal, and we do not think that it was incumbent upon the retiring partner, William Crosier, to trace out each individual member of the firm of Cassidy & MeNeal, with which his firm had dealt, and see that actual notice was brought to each member of that firm, and if the jury found otherwise it was against the weight- of the evidence. Considering the-verdict rendered, we think the jury must have found that MeNeal was a former dealer with the firm cf G. W. Crosier & Co., and that finding we hold was against the weight of the evidence. -

This erroneous finding was perhaps partly due tc the charge of the court, and in part to the jury. The court did not define to the jury what would constitute a former dealer with the firm of G. W. Crosier & Co.; but'left the jury to-determine as a question of fact, whether MeNeal was to be-treated as a former dealer with the old firm, without defining what would in law constitute such former dealer, or giving the jury very much of a guide in determining that question.

i Again, it is said that, during the years of ’92 and ’93, especially in ’92 when this transaction took place, William [was holding himself out as to be chargeable as a partner as fco third persons dealing with the firm of G.- W. Crosier & |lo.- It is true that George W. Crosier & Cc. was the style of the firm while William ws a partner; it is true as we find that that firm was dissolved in 1890; it is true that George W. Crosier continued as between him and William the business in the same firm name; it is true that there was seme stationery aDd bill heads, used while William was a member of the firm, left iu the possession of George W. Crosier, and that some of that stationery (and but a small amount, according to his record) was used by George W. Crosier, after the partnership was dissolved; but there is not a particle of proof that any of that stationery was used with the knowledge of William, or with his sanction, or was ever authorized by him in any way.

It is true also that William owned a cheese factory in Pittsfield; that George W. Crosier, after the dissolution, handled the product of that factory; but he had done so for a long number of years prior to the formation of the partnership with William, the same as they handled it after the dissolution rnd during the existence of the partnership between George and William, and there is nothing in all this that would justify any outsider in dealing with-George W. Crosier & Co., after that dissolution, relying upon the fact that William was responsible for the cbligations of that firm.

Anybody could have found out, according to this record, by the least inquiry,that William had attempted at least to •get out of thatfirm. George W. Crosier had-been doing business here for more than twenty years, William having no connection or partnership with him. In 1888 William did go in partnership with him, which partnership continued to 1890, when William retired from the firm, and the business was resumed precisely as it had been prior to that time; so that upon the facts set forth in this record we find there was no ground upon which William should be held liable for this debt, and that the motion for a new trial should have been granted instead of overruled.

Exceptions were taken during the progress of the trial tc the introduction of certain testimony, which testimony was allowed to go to the jury against the objection of the defendant, William Crosier. The objections were genf ral somewhat, ana can be classified. I take it that declarations of one partner — statements of one partner after the dissolution, were not competent to bind the other partner, unless authorized by him. I think the court recognized that rule, and undertook to decide as tc the competency of the testimony in view of it. But under the claims made, considerable tea-timony was given to the jury that ultimately should have no, or at least very little, weight as against William, and it is barely possible that there should have boen some limit placed upon the effect to be given to that testimony, by the court in the charge to the jury, but in the main the line of rulings of the court upon this testimony was correct as the case stood at the time that testimony was offered.

The testimony relating to the former dealing of McNeal with the firm of George W- Crosier & Co., while William was a partner, was all allowed, probably under the claim made that McNealwas a former dealer of the firm; but we thinlc it might properly have been limited in its effect, in the charge to the jury.

There was one item of testimony that was rejected of which serious complaint is made, and that is this: as we have found, this firm was in fact dissolved in 1890; Bradstreet’s commercial agency published a book which was in general use in 1890 among commercial men, and to that book Mc-Neal had acoess. That book noted the fact that William was not a partner. The language of the report of Bradstreet was “George W. Crosier and Co., company nominal.” Just how much weight that should have had with the jury we do not determine, but in connection with the facts as I have stated, showing that McNeal had acoess to that book; that it was of general use among commercial men; that that fact appeared in the book, while by no means conclusive, we are all agreed that it was a circumstance that might well have gone to the jury. I think of nothing else that I need to state in disposing of the case. The judgment of the court of common pleas will be reversed. The grounds specified may be, error in overruling the motion for a new trial, and in rejecting the testimony to which I have referred, being the entry in Bradstreet’s report.