text:
    RETURN TO VENDOR. OF PROPERTY CONDITIONALLY SOLD.
    Circuit Court of Cuyahoga County.
    Herman F. Schlitt et al v. The Cleveland Store Fixture Company.
    Decided, December 16, 1907.

      Conditional Sales — Provisions as to Installment Payments Not Material ■ — •'Vendor Seehing Return of Chattels Must Prove Return of Payments.

    1. An agreement for the sale of .chattels with a provision that the title is to remain in the vendor until they are fully paid for, is a conditional sale and within the provisions of Section 4155-2, Revised Statutes, and whether or not the contract provides for payment in installments is immaterial.
    2. A vendor seeking the recovery of goods sold on a contract of conditional sale must allege and prove that he had paid or tendered-the vendee the amount of the purchase price he had received less a reasonable amount (not exceeding fifty per cent.) for their use.

      Klein & Harris, for plaintiff in error.

      Win. II. Hill and Alvay Curtis, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
    The parties here are reversed from their relative positions in the court of common pleas. The terms plaintiff and defendant as used in this opinion refer to the parties as they stood in the court below. The facts are these:
   On the 17th day of June, 1903, one Wm. F. Schultz placed an order with the plaintiff for certain furniture and other chattels. This order was accepted by the plaintiff and so became a contract between the parties. This contract provided as to price of and payment for the goods' in these words:

• “Price ($355) three hundred and fifty-five no/100 dollars. Settlement to be made (on delivery of goods). Terms: f.o.b., Cleveland, Ohio.
“All orders for special work must be secured with 30 per cent, down payment on signing of order, 30 per cent, in-from date of order, 30 per cent, on shipment of goods, and balance immediately after goods are in place.
“If the goods are sold on payments, notes bearing 6% interest, mortgage or other security, with lire insurance covering the balance satisfactorily to be given.
“And it is agreed as security for the payment of the above that you retain title to said property until fully paid for (notes and drafts not to be considered as payment until they are redeemed), and in default of the full payment of any one payment, as herein agreed, you or your agent may enter my premises without process of law, and take possession of and remove said property, and I hereby bind myself not to sell, trade, transfer, convey or otherwise dispose of said property above ordered, or any part thereof, without having first obtained the consent of the Cleveland Store Fixture Company. * * *
“It is agreed that, the writing and printing above contains all to which the parties of either part are bound.”

This contract was made upon a printed blank, so that some of the language used has no special reference to a case like this, but enough has been quoted to show that which the contract was as to payments and the retention or ownership by the plaintiff until the goods were fully paid for. On the part of the plaintiff this contract was executed by the delivery of the goods to Schultz.

On the 12th day of September, 1903, the plaintiff, through its agent, made an affidavit, and attached it to this contract, which affidavit reads':

“State of Ohio, Cuyahoga County, ss.
“Henry E. Wetzel upon his oath says that he is the agent of the Cleveland Store Fixture Company, duly authorized in the premises, that the instrument hereto attached, marked, ‘Exhibit A’ is true copy of a contract of purchase made by said William F. Schultz of city of Cleveland, county of Cuyahoga, Ohio, and that there is unpaid and still owing thereon from .said William F. Schultz to said the Cleveland Store Fixture Company, the sum of one hundred dollars on the terms and conditions set forth in said contract.”

When the contract was made Schultz paid $100 of the purchase price. Subsequently from time to time, the last payment being made some time in August, 1903, he paid an additional $155. The remaining $100 of the purchase price has never been paid-

in October, 1903, Schultz sold the goods to the defendants, giving them a bill of sale, the consideration being a debt then owed by Schulz to the 'defendants. Thereafter, the plaintiff brought suit in replevin before a justice of the peace and the gooods were levied upon, and thereupon the defendants undertook as provided in 6616, R. S. 0., under title “counter-bond by defendants.” The conditions of the bond being such as provided by the statutes, to-wit:

‘ ‘ That the defendant will safely keep the property and in case the judgment shall be against him, that he shall return the property taken, or pay the value so assessed, at the election of the plaintiff, and also pay the damages assessed for the taking detention and injury of the property and costs of suit, ’ ’ etc.

Upon the' giving of this bond the property was returned to the defendant and the suit proceeded to judgment. From this judgment appeal was taken to the court of common pleas and there tried, with the result that the plaintiff obtained a judgment against the defendants in the sum of $100, and interest perhaps.

It should be stated that an appraisement of the goods was waived in the proceeding before the justice, and the value was agreed upon at $100.50. To reverse this judgment the present proceeding is prosecuted.

The plaintiff, if entitled to recovery, was so entitled because of his contract with Schultz, and the question was raised in the trial court and is raised here, whether the contract was a chattel mortgage, or whether it was a contract of conditional sale, as provided for in R. S. 4155-2.

It is urged that as the language of the contract is, “Price three hundred and fifty-five dollars; settlement to be made upon delivery of goods,” this was not such a contract as is provided for in 4155-2. The statute reads-:

“In all cases where any personal property shall be sold to any person, to be paid for in installments in whole or in part, or shall be leased, rented, hired, delivered, to another on condition that the'same shall belong to the person purchasing, leasing, renting, hiring, or receiving - the same whenever the amount paid shall be a certain sum or the value of such property, the title to the same to remain in the vendor, lessor, renter, hirer or ■deliverer of the same, until such sum or the value of such property or any part thereof shall have been paid, such condition, in regard to the title so remaining until such payment shall be void as to all subsequent purchasers and mortgagees in good faith, and creditors unless such conditions shall be evidenced by writing signed by the purchaser, lessor, renter, hirer or receiver, of the same, and also a statement thereon, under oath made by the person so selling, leasing or delivering -any property as herein provided, his agent or attorney, of the amount of the claim, or a true copy thereof, with an affidavit that the same is a copy, deposited with the county recorder of the county where the person signing the instrument resides at the time of the execution thereof, if a resident of the state.” * * *

Under this statute it is not necessary that payments for the property purchased shall be made in installments. The statute includes not only sales made to be paid for in installments, but includes all contracts where the property sold is delivered to another on condition that the same shall belong to the person receiving such property whenever the amount paid shall be a certain sum, or shall be the value of such property; the title to the same to remain in the deliverer of such property until such sum shall have been paid. A careful reading of the section clearly shows that property sold and delivered-by one to another, the title remaining in the deliverer until the receiver shall have paid a fixed sum, or the value of the property, is within the terms of the statute.

Section 4155-3 provides how the vendor may retake property sold upon such conditional sale, and reads:

“Whenever such property * * * is so * * ® delivered, it shall be unlawful for the persons who so delivered * * to take possession of said property, without tendering or refunding to the * * * party receiving the same from the vendor, the sum or sums of money so paid after deducting therefrom a reasonable compensation for the use of such property, which shall in no case exceed 50 per cent, of the amount so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed, in such contract or not, unless such property has been broken, op actually damaged, and then a reasonable compensation for such breakage or damage shall be allowed.
“Provided, that the vendor shall not be required to tender or refund any part of the amount so paid, unless said amount so paid to the vendor exceeds 25 per cent, of the contract price of the property. ’ ’

If the suit had been brought by the plaintiff against Schultz while the property was in his possession, it is clear that it would not have been entitled to recover, without having first paid or tendered the money which the defendant had paid upon the property, after deducting a reasonable compensation for the use of the property and deducting for any damage that the property had suffered, and a reasonable compensation for such damage.

. This is so because the contract comes within this statute and the payments made very greatly exceed 25 per cent, of the contract price of the property. No payment or tender was made by the plaintiff to anybody. It is said, on argument on the part of the defendant in error, that the failure to pay or tender payment on the part of the palintiff would be matter of defense, but this is not sound. The petition of the plaintiff was the ordinary petition in replevin, setting out that the plaintiff was the owner and entitled to the immediate possession of the goods. Thé answer was a general denial. This put upon the plaintiff the burden of showing affirmatively that it was so entitled to the immediate possession of the goods.

If it was so entitled, as against Schultz, it was so entitled because of the facts which have been stated, and upon which it relied, but the answer put upon it the burden of showing that it had complied with all these provisions of the statute, which entitled it to the possession; that, it failed to do. There was no evidence. offered tending to show that the property had been damaged or injured in any way; hence, under the evidence, the amount to be tendered by the plaintiff would not be reduced on account of any damage. But as no tender was made at all this is a matter of indifference.

That the rights of the defendants were exactly what the rights of Schultz would have been if a suit had been brought against him while the property was in his possession is settled by the case of The National Cash Register Company v. Cervone, 78 O. S., page 12. The second paragraph of the syllabus in this case reads:

“AYhere there has been paid on the contract of conditional sale an amount in excess of twenty-five per cent, of the purchase price, and the vendee has transferred his interest in the property by mortgage or. sale, the vendor is not entitled to replevin the property so sold without first tendering to the mortgagee, or purchaser in possession any amounts paid thereon less a reasonable compensation for the use of the property (not exceeding fifty per cent, of the amount so paid) and for the damage done to it while in possession of the vendee or his assigns. ’ ’

Under the evidence then, the verdict and judgment should have been for the defendants and the court erred in its charge to the jury in saying that the contract was a chattel mortgage and then applying to the case the law governing chattel mortgages. The judgment of the court below is therefore reversed for error in the charge and for error in overruling the motion for a new trial on the ground that the verdict was against the weight of the evidence.


source: Caselaw Access Project

license: Public Domain

text:
    BURDEN OF PROOF THAT CLAIM IS NOT BARRED BY THE STATUTE.
    Circuit Court of Cuyahoga County.
    Sarah Schmith v. John Coulton.
    Decided, December 9, 1907.

      Statute of Limitations — Burden on Plaintiff to Show Payments.

    Where alleged payments are relied upon to take a cause out of the operation of the statute of limitations, the burden is upon the plaintiff to show that the payment was made by the defendant or under his direction.

      W. J. Patterson, for plaintiff in error.

      Brady & Dowling, contra.
    Marvin, J.; Henry, J., concurs.
   John Coulton brought suit against Sarah Schmith on an account, which, on its face, was barred by the statute of limitations, unless it was saved by payments made within six years last past.

The credits appearing upon the account read:

“Nov. 9, 1898, by cash, $5.00.
“Feb. 23, 1899, by cash, $5.00.”

Suit was originally brought by the plaintiff against the defendant and auother before a justice of the peace on the 10th day of January, 1905, and it is claimed by the plaintiff that the account there sued on was the same as that upon which suit is here brought and that that action was 'finally determined, not upon its merits, on the 8th day of February, 1906, and the petition in the present action was filed on the 28th day of March, 1906.

We deem it necessary to consider but one question here and that is whether the payment credited on the account as of February 23d, 1899, was made by the defendant or any person acting for her.’ This is put in issue by the answer of the defendant, which contains a general denial. Unless this payment was made by authority of the defendant within six years next prior to the bringing of the suit before the justice of the peace, the claim is confessedly barred by the statute of limitations. The only evidence on this subject is the testimony of the plaintiff who says that the defendant’s .mother brought this $5 to him. This is not sufficient. It is well settled that the burden of showing- a payment, must be shown to have been made by the defendant or by his direction in order to take the claim out of the statute of limitations. The ground upon which payment made upon claims, which would otherwise be barred by the statute within the period limited by the statute, is that such payment is an acknowledgment on the part of the debtor that he owes the' debt, . and it surely was no acknowledgment. that. Mrs. Schmith owed this debt, that her mother made a payment on it. The verdict must be set aside for error in overruling the motion for a new trial, because the verdict was not sustained by the evidence.


text:
    EJECTMENT PROCEEDINGS.
    Circuit Court of Cuyahoga County.
    Robert J. Corlett v. Spencer D. Corlett.
    Decided, December 24, 1907.

      Receivers May he Appointed in Actions of Ejectment.

    Receivers may be appointed in actions of ejectment where it appears that the plaintiff has a good prima facie title and that there is imminent danger of the loss of rents and profits through the mismanagement of an insolvent defendant.

      George A. Groot, for plaintiff in error.

      McKisson & Minsk all, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
    Spencer D. Corlett filed his petition in the court of common pleas setting out that he had a legal estate and was entitled to the possession of certain real estate, described in the petition, and praying to eject Robert J. Corlett from the premises. It was an ordinary petition in ejectment with a prayer for rents and profits, and damages for the detention of the premises by the defendant. On application of the plaintiff below the court of common pleas appointed a receiver. Motion was made in that court to dismiss the receiver. This motion was overruled, and it is this order overruling the motion to dismiss the receiver that this proceeding in error is brought. The only ground upon which it is claimed the receiver should have been dismissed is that the court was without authority in the premises to appoint a receiver in the first instance. Receivers when appointed in this state are so appointed by virtue of the provisions of Section 5587, Révised Statutes, which specifies the cases in which receivers may be appointed, and one of the clauses of the statute reads: “in all other cases where receivers have been appointed by the usages of equity. ’ ’
   Although grave doubts were entertained by each member of the court at the hearing, of this case whether there was such usage in equity as to authorize the appointment of a receiver in a case like this, we have reached the conclusion that it may be done. The authorities upon the subject are cited in brief furnished us by the defendant in error, and we note Section 401 of Alderson on Receivers; Section 494 of Beech on Receivers, and Section 576 of High on Receivers, as well as the cases noted in the brief under these authorities, and accordingly we conclude that the court had authority to appoint the receiver.

The facts upon which the court acted are not before us and the result is that the judgment of the court of common pleas is affirmed.


text:
    ACTION NOT DEFEATED BY TARDY SUBSTITUTION OF THE PARTY SUBROGATED TO THE RIGHTS OF THE PLAINTIFF.
    Court of Appeals for Hamilton County.
    American Bonding Company of Baltimore v. The Second National Bank of Cincinnati and John John C. Healy, Trustee.

    Decided, March 22, 1915.

      Breach of Trust — Bonds Sold by Trustee*Without Authority — Proceeds Converted to Sis Own XJse — Bank, Purchasing the Bonds Charged With Knowledge of the Trust — Action Against the Bank by the Succeeding Trustee — Not Abated by Satisfaction of the Claim by the Surety — Statute of Limitations Not Applicable.

    1. The promiscuous use in the papers in the case and on the docket of the court of the names American Bonding Co. and American Bonding & Trust Co. as that of the plaintiff in the case, does not indicate uncertainty as to the identity of the party or that the court was not properly advised with reference thereto; where the correct name was used in the judgment and the motion for a new trial without objection on the part of the defendant.
    2. Where a trustee purchases with funds in his hands bonds constituting the highest form of investment known to the law, and the investment is reported to the court in his account which is confirmed in due course, such confirmation operates as an approval of the investment as fully as though a prior formal order had been made.
    3. There is no presumption in law of authority on the part of a trustee to sell bonds held by him in trust, and those purchasing from him without a showing of authority to sell will be charged with knowledge that he was probably violating his trust; and a bank, making such a purchase with knowledge that the bonds were held in trust will be held liable for the loss resulting from conversion of the proceeds, notwithstanding it paid full value for the bonds and was in no way in collusion with the. trustee in his breach of trust.'

      4. Tlie successor in the trust having brought an action against the bank for the loss thus sustained, payment of the loss by the surety during the pendency of the suit does not abate the action but it continues in favor of the surety by subrogation, and the substitution of the surety as the party plaintiff when made relates back to the commencement of the action, which in the present case saves the claim of the surety from the bar of the statute.

      Healy, Ferris & HcAvoy, for plaintiff in error.

      Jellce, Ciarle & Forchheimer, contra.
    Jones (Oliver B.), J.; Swing, J., and Jones. (E. PI.), J., concur.

      Reversing Nealy, Trustee, v. Second National Bank, 12 N.P. (N.S.), 193.

   The first question to be determined in this • ease arises upon the motion to dismiss the petition in error. It is contended that the American Bonding Company of Balfchnore, plaintiff in error, is a stranger to the case below and therefore has no power to file a petition in error in this case. The original plaintiff in the case below was John C. Healy, trustee, and he continued such party plaintiff until February 13, 1909, whan an order was made upon the application of the American Bonding & Trust Company of Baltimore, Maryland, substituting it a*s plaintiff in place and stead of John C. Healy, trustee, and ordering the cause to proceed thereafter in its name as plaintiff. No new petition was filed by the American Bonding & Trust Company as such substituted plaintiff, but an amended answer 'ivas filed after such substitution, February 23, 1909, by the defendant, the Second National Bank, in which answer no objection was made to the name of the company being substituted, as plaintiff. A reply to this answer ivas filed in the ipme of the American Bonding & Trust Company, which was verified by John C. Healy as attorney.

The transcript of the appearance docket below shows in a number of instances steps taken by the substituted plaintiff under its then true name of the American Bonding Compay instead of uder the name used in the entry of substitution, to-wit, the American Bonding & Trust Company, and both the final judgment entry and the motion for new trial are in the name of American Bonding Company. If these two names indicate two separate companies, then no final judgment appears on the record as to the American Bonding & Trust Company. The judgment entry against the original plaintiff and the motion for new trial by the original plaintiff after substitution were both unnecessary and need not be considered, if the substituted party appears both in the entry and in the motion, is to be used. In other words, where substitution is made because of a transfer of interest pending the suit, it is not necessary or proper that the original party be continued, in conjunction with the substituted party, who takes his place entirely!

Plaintiff in error offered in evidence in this court a printed certified copy of charter and amendments of the American Bonding Company of Baltimore, from which it appears that by special act of the General Assembly of Maryland, dated April 8, 1902, the charter of the American Bonding & Trust Company of Baltimore City was amended so that the name of said body corporate was changed from the American Bonding & Trust Company of Baltimore City to the American Bonding Company of Baltimore, and that this change was accepted by the stockholders of said company under date of 'July 31, 1902.

From the evidence, therefore, the court finds that there is no question as to the identity of the substituted plaintiff below against whom under its changed name judgment was entered. A mistake was made because of the evident lack of information by the attorney at that time as to the changed name of said company, said company having become surety for the original trustee on his bond under the name of the American Bonding & Trust Company and its name having been changed prior to the entry of substitution to the American Bonding Company of Baltimore, which name should have been used in the substitution. The promiscuous use of these two names in the appearance docket and the use of the correct name in the judgment entry and in the motion for new trial without objection at the time from the defendant indicates that, while no formal correction of the name as written in the entry of substitution was made, the court was properly advised and there was no question at any time as to the identity of the party.

Great liberality is shown under our code of practice in regard to correction of such mistakes. Section 11363, General Code, formerly Section 137 of the Civil Code, authorizes the correction of a mistake in the name of a party either before or after judgment, in furtherance of justice.

In State, ex rel, v. Bell Telephone Co., 36 O. S., 296, it was held:

’“Where, a corporation whose name is composed of several words is sued by a name in which a word in the corporate name is omitted, such omission or inadvertence unless pleaded in abatement will be disregarded by the court.”

And in Doty v. Rigour, 9 O. S., 527, it is held:

“Amendments of the record may be made after proceedings in error commenced at any time while diminution may be suggested in the supervising court and certiorari awarded. ’ ’

The question and effect of misnomer and the power o.f the court to correct mistakes of that character are fully discussed in Boehmke v. Traction Co., 88 O. S., 156.

The motion to dismiss the petition in error must therefore be denied.

This action was brought by John C. Healy, to recover the proceeds of two United States registered bonds of $1,000' each, which were held in trust by Charles Santmyer and were sold by him in violation of his trust to the Second National Bank. Mr. Healy had been appointed by the probate court as trustee of James Robinson, under the terms of the will of his grandfather, John Robinson, to succeed said Santmyer, who had been removed by the court. The American Bonding & Trust Company was surety on the bond of Santmyer as such trustee.

From a careful examination of the evidence it is found by the court that Santmyer sold these two bonds to the Second National Bank about September 18, 1899, for the sum of $2,222.50, and that the purchase money for same was deposited in his individual account in that bank. It is contended by the bank that it did not purchase the bonds itself, but that they were sold by it for Santmyer to another of their customers, Hohnstedt. The books of the bank, however, show the purchase and sale of such bonds by the bank itself. The bond daybook shows that such bonds were bought September 18, 1899, at a premium of $222.50, and sold September 28, 1899, at a premium of $280, showing a profit of $57.50 made by the bank. This evidence is taken in connection with the testimony of H/ohnstedt, who says that he did not know Santmyer; had no dealings with him; that his purchase of these two bonds was in connection with other United States bonds and municipal securities and they were bought from the bank itself by him. The actual transfer shown on the books of the United States Treasury, as executed by Santmyer, was dated October 2, 1899, and the new bonds were issued to Hohnstedt October 5, 1899. This transaction was based upon a letter written by "William Albert on that day, as cashier of the defendant bank, who conducted the purchase and sale of said bonds on behalf of the bank. The discrepancy in these dates can not be considered material, because M!r. Albert did not send the bonds for transfer until he had arranged for their sale to Hohnstedt, and they never were actually transferred to the name of the bank. The regulations of the United States Treasury required that the assignment of a bond for transfer must be executed and acknowledged before some United States officer or, among others, the cashier of a national bank. ■ It appears that William Albert as cashier of the defendant bank took and certified the acknowledgment of the transfer of these two bonds, and on the form of such transfer endorsed on the bond appears a note stating such requirement and also containing the following language:

"When the assignment is made by a corporation, it must be named as assignor; when by a guardian, trustee, executor, administrator, an officer of a corporation or any one in a representative capacity, proof of his authority to act must be produced to the officer before whom the assignment is made, and must accompany the bond.”

. No such authority to act appears to have accompanied the bond.

As has been stated, these two bonds were written in the name of C. A. Santmyer, trustee. That fact was clearly brought to the notice of the cashier of the defendant bank, and he being the executive officer of the bank his knowledge must be held to be its knowledge (Bank v. Burns, 88 O. S., 434). The bank certainly was advised of the fact that the proceeds of these bonds were credited to the individual account of Santmyer, and as stated in the brief of counsel for the defense, the fact that Santmyer since then spent the money is not disputed, and it is shown that it was so expended by him from his. individual account in the bank, which was introduced in evidence.

In the will of John Robinson creating the trust it was provided that an investment of the trust fond should be “declared and fixed by the Probate Court of Hamilton County.” No formal order made by the probate court for the purchase of these bonds is shown in the proof. The account current of Santmyer as such trustee, filed December 26, 1893, under Section 6328, Revised Statutes, shows that $15,000, the amount of such trust, had been received by him April 13, 1890, and had been expended under date July 1, 1890, for $12,000 U. S. registered 4 f0 bonds at 121%, amounting to $14,550. That account was allowed and confirmed by the probate court July 29, 1896. In regard to the investment of trust funds by the trustee, Section 6413, Revised Statutes, makes the following provision:

“Section 6413. Executors, administrators, guardians, and trustees may, when they have funds belonging to the trust which are to be invested, invest the same in the certificates of the indebtedness of this state or of the United States, or in such other securities as may be approved by the court having control of the administration of the trust.” (Now G. C. 11214.)

The probate court under the provisions of Section 6330, Revised Statutes, had full power to hear and determine all matters relative to tlie manner in which the trustee has executed his trust and all matters relating to. his accounts and the settlement thereof.

It is contended by the counsel for defendant in error, that it not having been shown that the probate court ever made a formal order declaring and fixing the investment of this trust fund, that it was the right and duty of Santmyer as sueh'trustee to sell said bonds and convert them into money for the purpose of then making application to the probate court for such formal order declaring and fixing the investment as provided in said will.

We can not admit this claim. It was said in Byard v. Farmers & Mechanics Bank, 52 Pa., 232:

‘ ‘ The powers of an executor or administrator differ from those of an ordinary trustee; the duty of the latter being not administration, but custody and management.”

While an administrator might have the duty of converting all of the property of a decedent into money for the purpose of administration, no such duty can be claimed for a trustee, and when Santmyer, even without an order of the probate court, had invested the funds of said trust in the highest form of investment- fixed by the law, Section 6413, Revised Statutes, even though such investment had not been formally directed by the court, he had no duty to make a sale of such bonds or to convert them into cash without an order of the court, especially when it has been shown that the investment had already been reported to the court in his account as rendered, and had been confirmed by the court. Such confirmation undoubtedly operated as an approval of the investment as fully as though a prior formal order had been made.

Santmyer held these bonds as trustee, so expressed on their face, and the bank purchased them with actual knowledge of this fact. The rule is well stated in 3 Pomeroy’s Equity Jurisprudence, Section 1048:

“Wherever property, real or personal which is already im-pressed with dr" subject to a trust of any kind, express or by operation of law, is conveyed or transferred by tbe trustee, not in tbe course of executing and carrying into effect the terms of an express trust, or devolves from a trustee to a third person, who is a mere volunteer, or who is a purchaser with actual or constructive notice of the trust, then the rule is universal that such heir, devisee, successor or other voluntary transferee, or such purchaser with notice, acquires and holds the property subject to the same trust which before existed, and becomes himself a trustee for the original beneficiary. Equity impresses the trust upon the property in the hands of the transferee or purchaser, compels him to perform the trust if it be active, and to hold the property subject to the trust, and renders him liable to all the remedies which may be proper for enforcing the rights of the beneficiary. It is not necessary that such transferee or purchaser should be guilty of positive fraud, or should actually intend a violation of the trust obligation; it is sufficient- that he acquires property upon which a'trust is in fact impressed, and that he is not a bona fide purchaser for a valuable consideration and without notice. This universal rule forms the protection and safeguard of the rights of beneficiaries in all kinds of trust; it enables them to follow trust property — lands, chattels, funds of securities, and even of money — as long as it can be identified, into the hands of all subsequent holders who are not in the position of bona fide purchasers for value and without notice. ’ ’ •

The case of Marbury, Trustee, v. Ehlen, 72 Md., 206, is in point, and is a well considered -and instructive case. In the opinion of the court at page 217, the following language- is used:

"A trustee presumptively holds trust propery for administration and not for sale. Jaudon v. National City Bank, S. Blatchford, 480. In 15 Wall., 165, in affirming this decision of Judge Blatehford the Supreme Court says the party taking such stock in pledge deals with it at his peril, for there is no presumption of a right to sell it. There being no presumption of the right to sell, a corporation ought to be held affected with notice that a trustee is probably .violating his trust when he attempts to sell trust property, known to the corporation to be such, without the production of authority for making the transfer. ’ ’

The case of Jelke v. Goldsmith, 52 O. S., 499, will not be deemed controlling in the present case because of the difference. there is in the duties of a trustee and those of an executor or administrator in regard to the sale of property.

It was held in Geyser-Marion Gold Min. Co. v. Stark, 106 Fed., 558:

“The legal presumption is that a trustee had no power to sell or transfer the subject of his trust.”

In the opinion, on page 561, Judge Sanborn used the following language: *

“But the word ‘trustee’ means something. It is a warning and declaration to every one who reads it (1) that the person so named is not the owner of the.property to which it relates; (2) that he holds it for the use and benefit of another; and (3) that he has no right or power to sell or dispose of it without the assent of his cestui que trust. It denies the equitable ownership and beneficial interest of the party to whom it is applied, and asserts that he holds it in a representative capacity. It signifies the opposite of the word ‘owner,’ and means that while the party called ‘trustee’ has the naked legal title, he has no beneficial right, title or interest in the property. ’ ’

In Sternfels v. Watson, 139 Fed. Rep., 505, the syllabus is in j>art as follows:

“1. The word ‘trustee’ following the name of the grantee in a deed is notice that he is not the owner of the property, and is sufficient to put all subsequent purchasers from him on inquiry as to the existence and nature of the trust.
•“2. The legal presumption is that a . trustee has no power of sale, and a mortgagee of property which was conveyed to the mortgagor as trustee, and all subsequent purchasers through him are bound to exercise reasonable diligence to ascertain whether or not the equitable owners of the property had authorized the execution of the mortgage. Such diligence is not exercised where there is nothing of record and they fail to make inquiry of the trustee himself, and make no effort to do so; and the contingency that he might have denied the trust is no excuse for such failure.”

The ease of Strong v. Strauss, 40 O. S., 87, was where sale had. been made by the guardian, of notes made to him as such. The syllabus is as follows:

“That one who buys such notes bearing on their face the marks of a trust fund, is put upon inquiry; and if he buys them from the guardian, under circumstances fairly indicating that they were sold against- the interest of his wards, he gets no title from the guardian who misappropriates the proceeds of the sale.”

In the opinion on page 92, the court says:

““ * * T]ie guardian is a trustee, and if one buys from him the ward’s personal estate, with actual or constructive notice that the same is held in trust, and under circumstances furnishing reasonable grounds to believe that the sale is not for the ward’s interest, the purchaser can acquire no title to the property, if the guardian misappropriates the proceeds of the sale. In such a case the purchaser is put upon inquiry; he buys at his peril; he can stand in no better position than the guardian himself, and must be held to be a trustee for the wards. ’ ’

The case of Duncan v. Jaudon, 15 Wall. (82 U. S.), 165, is directly in point. The discussion given in the opinion of the court is quite apropos of the case at bar, but we content ourselves with quoting the syllabus, which is as follows:

“1. When the trustees under a will, in making investments, depart from the rule prescribed by the testator, the right of action for the cesiui que trust for an illegal disposition of the property thus substituted is not affected by reason of this departure.
“2. Where a trustee holding stock, declared on its face to be in trust for his cesiui que trust, pledged the same for a loan of money to himself, the cestui que trust may compel the lender to pay the proceeds of such stock as pledged and sold by him.
“3. The party taking such stock on pledge, deals with it aflús peril; for there is no presumption of a right to sell it, as there is in the case of executor.
“4. Notice of the trust communicated to the cashier of the lender when he received the stock binds the lender. ’ ’

Attention is also called -to the ease of Shaw v. Spencer, 100 Mass., 382, one paragraph of the syllabus being as follows:

“If a certificate of stock expressed in the name of ‘A. B.,’ trustee, is by him pledged to secure his own debt, the pledgee is by the terms of the certificate put on inquiry as to the character and limitations of the trust, and if he accepts the pledge without inquiry, does so at his peril.”

The nearest case, however, that has been cited to the case at bar, is that of Covington v. Anderson, 16 Lea (84 Tenn.), 310. This case also involved a sale of bonds by a trustee under circumstances which gave notice to the purchaser of a violation of trust. The syllabus is as follows:

“1. If one acting as trustee convert the trust property without authority, he is responsible, and he who purchases from him, or aids in the conversion, with a knowledge of the want of authority, or under circumstances that will reasonably put one upon inquiry as regards the authority to sell or convert, is also liable.
‘ ‘ 2. Whatever is sufficient to put one upon inquiry is notice of all the facts which would be discovered by a faithful prosecution of such inquiry. ’ ’

This case has been cited with approval in several of the later cases, and must be regarded by us as authority in this case.

Defendant purchased these bonds with due notice that it was buying from a trustee. No authority had been shown in him to make the sale, nor did defendant show that it made any proper inquiry to ascertain whether such authority existed. True, the bank paid full value for the bonds and was in no way in collusion with the trustee in committing a breach of his trust. ' But it permitted the proceeds of the bonds to be placed in its bank to the individual credit of Santmyer and then paid them out on his individual checks. While ordinarily it would not be permitted to supervise the expenditure of a trust fund deposited in its bank (Morse on Banks & Banking, Section 317), under the circumstances of the case it might have saved itself, even after its purchase, by refusing to pay out the proceeds' of said bonds for other than the purposes of said trust. Not having done so it in that manner made possible the defalcation. Having thus become the purchaser of the bonds from the trustee without authority in him to make the sale, the beneficial owner or his new trustee as his representative would have the right to reclaim the bonds, or, as they had been sold, to compel an account for their value or proceeds. The surety company having, however, made good Santmyer’s defalcation and paid, the trustee of the beneficiary thus became subrogated to his rights, and by virtue of such subrogation became entitled to recover from defendants the amount of the value or proceeds of said bonds.

However, it is contended by defendant and was held by the court below (12 N.P. [N.S.], 193), that the bonding company was barred by the six-year statute of limitations. There is no question that at the time of the commencement of the action March 29, 1901, the original plaintiff, John C. ITealy, trustee, was the real party in interest. On August 26, 1901, the bonding company paid to ITealy, trustee, the amount of Santmyer’s defalcation and was then subrogated to all the rights and claims of ITealy, trustee, and might then have been substituted for him as plaintiff in this case. Such substitution was not in fact made, however, until February 13, 1909.

The court below held that the statute of limitations began to run on the date of such payment by the bonding company when its claim first arose, and. that its action could not be considered as brought until it was formally brought into the case and substituted as plaintiff. In other words, that the payment to ITealy, trustee, by the bonding company terminated his action, and the action of the bonding company was not begun until it had secured the entry substituting it as plaintiff.

Such holding disregards entirely the provisions of Section 11261, General Code (then R. S. 5012) :

“An action shall not abate by the marriage of a female who is a party, but if it is necessary that the husband be joined therein, he may be made a party with her. Upon the disability of a party, the court may allow the action to continue by or against his representative or successor in interest. On any transfer of interest the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted fon him. ’ ’

This section has been construed in Lowry v. Anderson, 57 O. S., 179, of which the following is the syllabus:

“Upon the transfer of a plaintiff during the pendency of an action, of all his interest therein, the action may proceed in the name of such plaintiff, or the court may allow the person to whom the transfer is made to be substituted; but such transfer is no defense to the action.”

/

The cause of action did not abate because of the payment to ITealy, trustee, by the bonding, company but continued to exist in favor of the bonding company by subrogation. Under this statute as so construed such company might have been substituted as plaintiff at once, or the action might proceed in the name of Plealy, trustee, the original plaintiff for the benefit of the bonding company. The action did so proceed in the name of the original plaintiff until the defendant became advised of the payment., when the bonding company was substituted as such plaintiff.

As has been stated in passing' on the motion to dismiss the petition in error, this substitution was by inadvertence made in the original name of the bonding company instead of the name it then bore, but as we have found it was the same 'identical corporation with only a changed name, that error in name was not important.

The claim against the defendant was not changed in- any-•respect. The substitution when made related bach to the beginning of the action, or, as to the interest of the bonding company, back to the time of its payment of the debt of its principal to Healy. Such payment did not operate as an abatement of the action which continued to proceed as was authorized by statute in the name of the original plaintiff. The substitution of the bonding company did not bring in any new cause of action nor create any new defense for defendant which, did not previously exist. It could make no possible difference to defendant in which name the action proceeded, unless it might perchance have some set-off or counterclaim against the bonding company, and in that event, as it filed an amended answer after the substitution it had ample opportunity to have offered any such defense.

Defendant urges, however, that the decision in Lowry v. Anderson, 57 O. S., 179, had been modified and distinguished by the several cases reported together under the name of Insurance Co. v. Carnahan, 63 O. S., 258, and for that reason can not be regarded as authority here. We fail to agree with this contention. In some of the eases in Insurance Co. v. Carnahan it was found that the rights of the plaintiffs had b.een assigned before the commencement of the action, and that the action was therefore not brought in the name of the real party in interest. The actions were all brought by a partnership in the firm name and during their pendency one of the partners died and there was no proper revivor or substitution of the representative or successor in interest in place of the partnership. It was therefore held that the action was in abeyance and could not proceed. The case does not go to the extent of abrogating the provision of Section 11261, General Code, for a continuance of the action in the name of the original party where transfer of interest is made after the commencement of the suit, nor can the fourth proposition of the syllabus as claimed by counsel for defendant be so construed.

Its proper construction is rather that where an assignment had been made before suit it must be commenced in the name of the assignee, and when made after suit and revivor becomes necessary such revivor should be made in the name of the assignee.

On page 268 of the opinion the court say:

“The case of Lowry v. Anderson, 57 O. S., 179, does not apply here. The point of that decision was that the transfer of interest, pending the suit, was no defense to the action, and that was the only -point decided in the case. It was expressly stated in the opinion that the assignee might be substituted for the original plaintiff. The case does not touch the point which arises here, viz.: that the actions were not begun or prosecuted in the name of the real party in interest.1 ’

In this case there is no dispute that Healy, trustee, was the real party in interest at the commencement of the action, that the action never abated, that it properly proceeded in the name of the original plaintiff until the bonding company was after-wards substituted as plaintiff under authority of Section 11261, General Code. The action was never in abeyance and never abated. Under such a state of facts there can be no defense of the statute of limitations.

As an illustration of the power of the court in furtherance of justice to substitute a party plaintiff and that such substitution relates back to'the original commencement of the action, and might possibly thus prevent the intervening'of the statute of limitations, attention is called to the recent case of VanCamp v. McCully, Trusted, 89 O. S., 1, 8.

In Nebraska, where Section 45 of the code is similar in its terms to our Section 11261, General Code, it was held in Schaberg v. McDonald, 60 Neb., 493:

“Under the provisions of Section 45 of the code a party may continue as plaintiff in an action and prosecute the same to final judgment, after he has transferred to another (and during the pendency of the action) his interest in the subject of the con troversy. ’ ’

In Chicago & N. W. R. Co. v. Jenkins, 103 Ill., 588, the syllabus in part is as- follows:

“3. The bringing of a suit is the issuing of a summons or other process to bring the defendant into court. The substitution of the assignee of a bankrupt as plaintiff in a suit, is not to be regarded as the commencement of the suit by the assignee, within the meaning of the United States statute limiting such actions to two years after the assignee’s appointment. * * *
“4. The statute of the United States limiting the bringing of suits by the assignee of a bankrupt within two years from the time of his appointment, was designed, only to apply to suits brought by him and not actions already pending in which he may be substituted as plaintiff, although such substitution may be more than two years after his appointment. * * ®
“6. The statute of limitations does not run against a cause of action after a suit thereon is commenced, and during its pendency, and numerous cases hold that the mere commencement of a suit without service within the statutory period, will prevent the statute from becoming a bar. ’ ’

Nor is the case of Jenkins v. International Bank, 106 U. S., 571, contrary to this rule, as contended by counsel for defendant in error. It holds that the statute of limitations prevents an assignee in bankruptcy from bringing error proceedings after two years (such being the limitation for bringing an action in bankruptcy) following the Illinois Supreme Court in holding that a writ of error was the beginning of a new suit.

For further illustrations of the rule that the substitution of a party plaintiff relates back to the commencement of the suit, see: Lilly v. Tobein, 103 Met, 477; Ludwig v. Ins. Co., 108 Ill., 514; McLaughlin v. Barnes, 18 C. C., 623, aff. 57 O. S., 632.

Where one of two parties plaintiff was omitted in dn amended petition and the action proceeded with but one plaintiff, the general rule is thus stated in 25 Cyc, 1303:

“Where substitution of plaintiff by amendment does not in fact change the claim or cause of action, such amendment relates back to the commencement thereof, and stops the running of the statute of limitations' at that point.”

The court below, therefore, erred in holding that the statute of limitations prevented recovery by the substituted plaintiff, but said court should have entered a judgment in favor of such plaintiff for the amount of proceeds of said bonds, with interest from the date of their sale.

The judgment below will therefore be reversed, and a judgment may be entered here for the plaintiff in error.


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    AS TO THE VALIDITY OF A SEWER. ASSESSMENT.
    Court of Appeals for Lucas County.
    Charles A. Thatcher v. The City of Toledo et al.
    Decided, February 2, 1914.

      Sewer Assessments — Outlet of Sewer in Stream Which is Polluted Thereby- — Does Not Hender Assessment Invalid, When — Notice by Publication to Property Owners Sufficient — Section 3834, General Code, Constitutional.

    1. Where city authorities, acting under favor of the statutes providing for the construction of main or trunk sewers, have established the outlet of such sewer in a river or creek, injunction will not lie to prevent the collection of an assessment therefor on the ground that the sewer has no legal outlet, nor that it constitutes a nuisance, in the absence of a showing of fraud or gross abuse of discretion in establishing such outlet.
    2. An assessment for the construction of a sewer will not he set aside on the ground that the state board of health has determined, after the sewer is built, to require the city to submit plans for abatement of the pollution of the stream into which the sewer empties; nor would the fact that the stream into which the sewer empties proves, ultimately, to be so polluted as to constitute a violation of the statutes prohibiting the pollution of streams by sewage justify the setting aside of such assessment.
    3. Section 3S34, General Code, does not violate any constitutional provision by dispensing with the requirement for personal notice1 to resident owners as a prerequisite to making an assessment on their property for the cost of constructing a main or district sewer, as no personal liability for the assessment attaches to the owners, and in such case a notice given by publication is sufficient.

      Charles A. Thatcher, in propria persona.

      Wesley 8. Thnrstin, Jr., City Solicitor, and Thos. Tj. Gifford, contra.
    Richards, J.; Chittenden, J., and Donnelly, J.. concur.
    Heard on Appeal.
   This action is brought for the purpose of enjoining the collection of an assessment against certain property in the city of Toledo owned by tbe plaintiff, Cbarles A, Tbatcher, levied for the construction of a main or trunk sewer. The sewer extends on Monroe street in a westerly direction from Bancroft street, emptying into Ottawa river or Ten Mile creek. The expenses of constructing this sewer amounted to slightly under $36,000 and the cost has been paid by the city to the contractor. The'property belonging to the plaintiff is in the'sewer district, but not abutting upon the street in which the sewer runs,' and was assessed for the construction of the sewer in the sum of $467.82, which amount was payable in five annual installments.

The plaintiff, in his petition, sets forth numerous grounds on which he contends that the assessment made against his property is invalid, but on the trial .of the ease the serious claims made by him were limited to two; first, that the sewer in effect has no legal outlet and, emptying the sewage where it is-emptied from this sewer, constitutes a nuisance; second, that no notice of the passage of the resolution and ordinance by the city council was served on him, although he was during all of the time a resident of the city of Toledo.

At the point where this sewer empties into Ottawa river or Ten Mile creek the distance to Maumee Bay is three miles or more, and the condition of the stream from this point where the sewer empties into it is described by witnesses who testified in the case. From that testimony it appears that during midsummer the stream has little current, is sluggish or stagnant, and is described by one witness as being dark or black in color and by another as being at times of a green color and having on the surface more or less scum. One witness states that he discovered no odor arising from the stream, but another witness, who lives in its immediate vicinity, states that “We once in while get a whiff of bad smell, call it anything you want to. The number of mosquitoes is what we notice the most.” This offensive condition apparently exists only during a protracted dry season, when the water is very low, for it is evident that during a considerable portion of the year much water passes through the river or creek to the bay, although the fall is not great.

It is disclosed by the evidence that on October 29, 1903, the state board of health, by written communication, advised the chief engineer of the city of Toledo that the plans for the sewer districts, embracing the one now in question, were approved upon the condition that if, in the opinion of the state board of health, the outlet should become a nuisance and a menace to the health of the community a purification plant should be installed, and it was only after this communication was received by the city that legislation was adopted for the construction of this main sewer. This action was commenced in the common pleas court in 1910. On March '20, 1913, being several years after the completion of the sewer and the payment of the expenses therefor, the state board of health determined to require the city to submit definite general plans for the. abatement of the pollution of Ten Mile creek.

It is provided in Section 3872 of the General Code that main sewers shall have their outlet in a "river or other proper place.” It is apparent from all the evidence in this ease that Ottawa liver or Ten Mile creek is not an ideal outlet into which to empty a sewer, but the matter of determining where a sewer shall empty is one which is within the control and discretion of the city authorities, and the rule has long been settled that in the absence of fraud or a gross abuse of discretion the action of those authorities will not be interfered with by'the courts.

Plaintiff cites 1 Page and Jones on Taxation by Assessment, Sections 329, 401, 417, 418 and 447. An examination of these sections tends to elucidate the questions involved in the case at bar although the principles there discussed by the authors may not be decisive as to this case. It is stated in the first section cited that a sewer without an outlet which can be used as of right, is as useless a thing as can be imagined. The statement, of course, is a truism, but the evidence in this case fails to show that this sewer is without an outlet. The outlet, such as it is, has met the approval of the city authorities, and in the absence of a showing of either fraud or a gross abuse of discretion, we are not called upon to interfere with the conclusion thus reached. See Johnson v. Village of Avondale, 1 C. C., 229, and Chamberlain v. City of Cleveland, 34 Ohio St., 551, proposition 9 of the syllabus.

In this connection we may call attention to the claim urged by plaintiff that the sewage flows through this stream over private property, and that the city has acquired no right from the abutting property owners to thus use the stream. It appears that when the sewer was first constructed it emptied into the Ottawa river at a point on the land owned by Alice M. AAThitney and others, and that the circuit court, at the suit of the owners of the property, enjoined the use of the sewer for any purposes, except storm-water drainage, until the right to so empty the sewer should be acquired from the owners of the property at the outlet (Whitney v. City of Toledo, 8 C.C.[N.S.],. 577). That right was subsequently acquired by appropriation proceedings, but no proceedings were taken against-the riparian owners farther down the stream, and it does not appear that any contentions are being made by such owners in the courts tha't the sewer can not have its outlet in this stream.

As bearing very closeiy upon the matter now under consideration, we quote from Johnson v. Village of Avondale, supra, page 232, where the court, speaking of a sewer outlet, say:

“AVIiether it is a proper one, is, in my judgment, a matter as to which the law confers a discretion on the village aiithorities, and unless it has been grossly abused, the courts can not properly interfere. And I see no good reason as- yet to think that such discretion has been abused. The evidence on this point is, to say the least, very conflicting. Nor do I think the fact that the right of the village to have the outlet at this point, is denied by the owner of the ground, is a good reason why the court should interfere as prayed for at the instance of the plaintiffs. They are not called upon to defend the rights of the owner. If the village infringes on them, he has his remedy; but if the fact that some person might have a claim against the village for flowing sewage upon, or near his lands, is to stop this work, it is probable that the- sewer can never be built anywhere. The same claim might be made by the plaintiffs if it was continued and actually emptied into Mill Creek, or some other stream, for it might then be an invasion of the rights of some one as much as it is now.”

A case nearly identical in some of its aspects with the case at bar is that of Cleneay v. Norwood, 137 Fed. Rep., 962, a’ case which arose under the statutes of Ohio providing for the construction of sewers. It is urged by plaintiff that the position taken by the state board of health is such that the city is without authority to enforce the collection of an assessment because of the claimed unlawful pollution of this stream. In the seventh paragraph of the syllabus of the ease just cited the court say:

“That a village, its officers and agents, had violated certain statutes prohibiting the pollution of streams by sewage, and were liable for the penalties prescribed therefor constituted no ground for setting aside an assessment for the construction of the sewers.”

It is insisted, however, that the assessment is invalid because no notice was served upon the plaintiff of the passage of the preliminary resolution' and of the ordinance to improve, and in this connection it is contended that such notice is required by the statutes, and if not so required, that the statutes authorizing the assessment are unconstitutional. The resolution and ordinance were duly published and no controversy exists on that point, but only that personal notice was not served on the plaintiff. A solution of the controversy necessitates an examination of the sections of the General Code providing for the making of improvements of this character and assessing the cost therefor. The sewer is a main or trunk sewer and it is provided in Section 3878, General Code, in substance, that the resolution providing for the construction of such sewer shall be published once a week for not less than two nor more than four consecutive weeks in a newspaper of general circulation. Section 3834, General Code, especially excepts main or district sewers from the class as to which notice of the passage of the resolution shall be personally given, as provided in Section 3818, General Code. We hold, therefore, that under the statutes as they read no personal notice was required to be served upon the plaintiff, notwithstanding he was a resident of the city of Toledo. See Kohler Brick Co. v. City of Toledo, 10 C.C.(N.S.), 137.

The inquiry then arises as -to the validity of statutes authorizing an assessment upon the property of a resident without the service of notice on him personally. Plaintiff in his brief cites and relies on Anderson v. Messinger, 158 Fed. Rep.. 250, and Chicago & Erie Rd. Co. v. Keith et al, 67 Ohio St., 279. A

careful examination of these authorities does not lead us to the belief that they are controlling upon the question now under consideration. The case last cited arose under a statute requiring railroad companies to construct ditches' of sufficient capacity to conduct to a proper outlet water which accumulated along the sides of the' road-bed. The statute failed to provide for notice, either actual or constructive, to the railroad company so sought to be charged, and for that reason, among others, was held unconstitutional. The court speaking through Rurket, C. J.. say on page 291:

“The railroad company is notified by the owner or tenant to open the ditch, and is also notified by the probate judge to open it, but no notice is given to it of any hearing, and no provision whatever is made for a hearing at any stage of the proceeding.”

It is perfectly manifest that the Constitution is invaded by a statute of that character. The statutes under which main sewers are constructed have provisions in them for the giving of notice by publication, as hereinbefore indicated, and they further have provisions whereby the owner of property assessed is notified by publication of the amount of the assessment upon his property, and has an opportunity to be heard as to the validity and justice thereof. See Sections 3847, 3895 and 3848, General Code.

A proceeding for the establishment of a main sewer is in effect a proceeding in rent, and it is not necessary to its validity that a person whose property is sought to be charged with a portion of the cost of the improvement and on whom no personal liability is fixed, should receive actual notice personally of the proceedings. So far as the question under consideration is concerned, the case is similar to Cupp v. Commissioners of Seneca County, 19 Ohio St., 173, which involved’ the construction of a county ditch. In that ease it is said, on page 182, that the statute made no provision for the service of personal notice upon the landowners! The court then proceeds:

“Nothing is better established as law, than that such rights may be affected, and lost to the owner, by a proceeding in rem, and upon merely constructive notice. The law of all such proceedings rests in the necessity of the case, and in no instance, perhaps, is that necessity more plainly apparent than in the constr'uction of public roads, and other improvements of like nature. Without the aid of some such proceeding, the construction of roads and ditches would be next to impracticable.”

The case has become a leading one in this state, and has been many times cited with approval. One of the latest citations of that case is Commissioners of Portage County v. Gates, 83 Ohio St., 39, in which it is held that personal notice to the landowner of the proceeding is not indispensible to its legality.

The law on this subject is well stated in 1 Page and Jones on ' Taxation by Assessment, Section 121, as follows:

“The Legislature has a wide discretion in determining the nature and kind of notice to be given, though it has no power to dispense with all notice. If such notice is given as will fairly and reasonably apprise the property owner of the pendency of the assessment proceedings so as to give him an opportunity for a hearing upon the merits he is not entitled as a matter of constitutional right to personal service. Notice by publication may therefore be provided for by the Legislature-without violating the constitutional provision fórbiding the taking of property without due process of law.”

It is said further by the authors, in Section 127, that:

‘ ‘ Outside of the question of personal liability, personal notice is unnecessary and a reasonable notice given by publication' is sufficient.”

Finding that the statutes violate no constitutional provision, . and that they have been followed in the proceedings leading up to the construction of the sewer in question and' the assessment of plaintiff’s land therefor, the petition will be dismissed and the injunction dissolved.

Petition dismissed and injunction dissolved.


text:
    MOTORMAN INJURED BY CARELESSNESS OF OTHER. EMPLOYEES OF THE COMPANY.
    Court of Appeals for Hamilton County.
    The Cincinnati Traction Company v. Martin Pierman.

    Decided, April 4, 1914.

      Negligence, — Disabled Traction Car Operated Contrary to Buies of the Company — Collision with Another Car — Motorman Without Fault on Ilis Oton Part Injured — Fellow-Servant Buie Not Applicable.

    1. Neither an inspector nor a barn foreman, employed by a traction company, can be classed as fellow-servants of an injured motorman, for whose acts the company would not be liable.
    2. Where in obedience to the order of an inspector a disabled ear which could not. be controlled except by use of the reverse current, was being taken to the barn in a manner contrary to the rules of the company, alleged negligence thereby on the part of the conductor of the disabled ear is not available in an action by an injured motorman who was operating another car and was without fault.

      Miller Oulcali, for plaintiff in error.

      Philip ic& S. C. Boettinger, contra.
    Jones (Oliver B.), J.; Jones (E. IT.), J., and Swing, J., concur.

      Affirmed without opinion, Cincinnati Traction Co. v. Pierman, 90 Ohio State.

   Plaintiff below was a motorman employed by the defendant below, and had prepared to take a car out of its car barn near Eighth and Depot streets, for its regular trip when he was ordered by the inspector to stop just inside the car barn and’ hold himself in readiness to proceed after the inspector had brought in a car. The car which was being brought in had become disabled down in the city and its motorman and conductor had, under the instructions of the inspector in charge at that point, undertaken to bring it into the car barn on its own power although its brake had been entirely disabled by the accident so that it was utterly useless and the only means of cheeking the car was by the use of the “reverse” by the motorman. This means of retarding or stopping the ear was sufficient while the current was on, and ceased to operate entirely whenever the trolleys became disengaged from the trolley wires and the current was thus disconnected.

Rules 17 and 18 of the general rules for a conductor and motorman of the defendant company were introduced in evidence, being as follows:

“17. Reporting Defects — Conductors and motormen will report at first station of the company they first meet, any defect in car, track, wires-.or poles which needs immediate attention.
“Should same be in a dangerous condition, the crew will not leave the point of danger until relieved by the crew of the next car arriving, or by other employees of the company.'
“18. Disabled Gars. — If a ear becomes disabled and if repairs can not be made without unnecessarily blocking the street, the crew must arrange to have the nearest available ear take disabled ear to carhouse, or such other place as will avoid obstruction. ’ ’

"When this ear became disabled an inspector was called who undertook its management. It seems that he used another car to straighten it out and start it towards the barn by towing it, but as above stated he instructed its crew to proceed to the barn without any other car, taking it only on its own power and without any means of braking other than the reverse current.

It appears that when this disabled car reached Eighth and Depot streets- another inspector was there in charge. The usual method of taking the ears into the barn at that place was to back them in. The level of the barn being five or six feet lower than the street above, the cars would run down easily, and the barn foreman who was in charge there would direct the throwing off the proper switch to carry the ear into the track on which it was intended to leave it. The barn foreman was present and in' charge, at this time, and a boy who was under his directions had thrown the switch. The disabled ear, which was- a heavy two truck ear of the modern type, running backward was eon-trolled by the motorman by using his reverse current until the trolleys either flew off or were taken off the wires by the conductor, and the reverse current from that time failing to be effective the car ran away, and, because the wrong switch had been turned, ran into the track on which the car about to be operated by the plaintiff was standing, resulting in a collision, in which the plaintiff below received severe injuries.

The defendant below filed a demurrer to the amended petition, which was overruled. This-demurrer was based upon the claim that the petition showed that the injury was caused by a fellow-servant, and the same issue was afterwards raised by the answer, and is pressed here as the main ground of error. .

While plaintiff himself testified that he saw the conductor of the disabled car apparently manipulating the trolleys as though he had pulled them off the wires, he stated that he could only see the ear a matter of eight or ten feet away as it turned into the track or curve, and there is other testimony tending to show that the trolleys might have jumped off the wires thus breaking the current, it appears that it was necessary for the conductor to manipulate the trolleys because of the complex nature of the overhead wiring at that point; so it does not follow that the entire proximate cause of the injury was merely the disconnection of the current by the conductor, or that such disconnection was not necessary in order to pass the car into the barn. But further negligence is shown in the management by the company in the manner of adjusting the switch, as it was not intended that this disabled ear should enter into the track on which plaintiff’s ear was standing, as that track entered upon an opening not sufficiently large to permit- the entrance of as large a car as .this disabled one.

In the opinion of the court, however, the real cause of the injury was in undertaking to manipulate a car in such a condition without having it under sufficient control. Buie 18 seems to have been violated by the employees of the traction company, and its inspectors were responsible for such violation. Neither the inspectors nor the barn foreman, who was responsible for the placing of the switch, would be classed as fellow-servants of the plaintiff, for whose acts the defendant would not be liable. And indeed it might be a question whether, if the negligence were alone that of the conductor on this disabled car, the fellow-servant doctrine could be a defense, because of the unsafe condition of such car, in view of the terms of Section 6244, General Code.

Plaintiff was entirely without fault and was acting under the orders of his superior, and the ruling of the court below on the demurrer was correct.

Plaintiff in error claims that the court below erred in that part of its general charge relating to the proximate cause: The language employed might have been more clear and specific, but we do not find that it resulted in prejudicial error to the defendant below, and a careful consideration of the entire record fails to disclose any prejudicial error.

The judgment, is therefore affirmed.


text:
    PROOF OF AN INTENTION TO TRADE IN MARGINS.
    Court of Appeals for Franklin County.
    Otis & Hough v. Joseph Eylar Thompson, an Infant, by John Eylar, His Next Friend.
    Decided, December, 1914.

      Action for Money Lost Trading in Margins — Mutual Intention Not to Complete the Trades — Shown by Circumstantial Evidence — Evidential Interrogatories — Charge of Court.

    1. In an action to recover money lost in marginal or wagering transactions in stocks, it is competent to prove that back of the form in which the 'transactions were clothed there existed a mutual intention not to complete the transactions by payment in full and delivery, but to rest on the rise and fall of the market values.
    2. The purchaser having testified that in all the transactions except four (in which she actually received the stock) it was her intentention to deal in margins only, evidence of a similar intention on the part of the defendant brokers, sufficient to send the case to the jury, is afforded by a showing of piurchases by this customer of stocks of the value of more than $200,000, notwithstanding she was in distress financially and frequently had difficulty in meeting the margins she was called upon to pay.
    W. O. Henderson, Kwrl E. Burr and Thomas Kirby, for plaintiff in error.

      E. G. Lloyd, John G. Shea and John Eylar, contra.
    Allread, J.; Ferneding, J., and Kunkle, J., concur.
    The original action in the court of common pleas was brought by Joseph Eylar Thompson by next friend to recover money lost by Margaret Eylar upon marginal, or wagering transactions in stocks.
   Upon trial the plaintiff recovered a verdict and judgment for $2,500. The case is in this court upon petition in error.

The counsel for plaintiff in error very earnestly contend that all the transactions involved are legitimate, and that there is no basis in the evidence for a recovery. The material evidence offered by the plaintiff consists of the testimony of Margaret Eylar as to the nature of the transactions, together with certain books, cheeks, receipts, letters, etc., connected with and forming parts of the various transactions.

The plaintiff, as part of his case in chief, also called as a witness Frank. L. Griffith, manager of the Columbus branch of the defendant’s business, to identify certain documents'. Upon cross-examination, Griffith testified in substance that all the transactions with Mrs. Eylar were bona 'fide purchases and sales of stock.

At the conclusion of plaintiff’s testimony the defendant moved for a non-suit. This was overruled.

The defendant thereupon offered the testimony of Frank L. Griffith in detail as to the transactions, together with various records and documents connected with and forming part thereof. There was also other evidence which need not be alluded to in detail.

Upon the conclusion of all the evidence the motion of the defendant for a non-suit was renewed and again overruled.

The testimony of Mr. Griffith in connection with the books and bills of purchase and sales tends to show that the transactions were regular and legitimate purchases and sales of stock. And if that were the only evidence to be considered, it would be quite clear that no liability should be sustained.

It is, however, clearly established by adjudications in this state, and sustained by manifest public policy, that the mere form of the transaction is not conclusive. Kahn, Jr., v. Walton, 46 O. S., 204; Lester v. Buel, 49 O. S., 240.

It is therefore competent to show that back of the form in which the transaction is cloaked, there existed a mutual intention of the parties not to complete the transaction by payment and delivery of the stock, but to rest merely upon the payment of margins and thereby speculate upon the rise and fall of the market values.

Margaret Eylar testified that in all the transactions (except in four instances when she actually received the stock) her intention was to deal in margins only.

The evidence of Mrs. Eylar was, therefore, sufficient to raise an issue as to her intention. It is insisted, however, that there was a total failure to prove that such intention was mutual or even that Otis & Hough knew of Mrs. Eylar’s purpose or consented thereto.

It may be conceded that it was a necessary part of the plaintiff’s case to prove a mutual intention of both parties to deal in margins only, and not to complete the transaction by the final delivery of the stocks. It is, therefore, quite important to determine whether there was sufficient evidence, either direct or circumstantial, to justify the submission of the ease to the jury.

There were two transactions on "short sales,” but as these involved small amounts and could not sustain the entire judgment they may be ignored except for their evidential value upon, other transactions.

We, therefore, revert to the main and important question in the case, whether there is sufficient evidence tending to show that Otis & Hough intended that these transactions should be upon margins only and not be completed by the final delivery of the stock.

The circumstances that in four instances representing about forty shares, stock wras actually delivered, tends to support the testimony of Mr. Griffith.

Against this circumstance, however, is the 'long list of transactions involving something over four thousand shares of stock of different corporations of a purchase value of something over $200,000, which appears to have been bought and sold without actual delivery of. the stock and upon small cash deposits or payments in a manner somewhat similar to the usual and ordinary case of marginal dealings. To these circumstances may be added the testimony of Mrs. Eylar to .the character of the-transactions and the fact that Mr. Griffith spoke of these cash payments as margins and called upon her when the stock market “slumped” for more money to keep up the margins. The financial situation of Mrs. Eylar is a circumstance tending to corroborate her testimony and to repel the idea that she intended to complete these extensive purchases of stock, and we think it was an inference capable of being drawn by the jury that the representatives of Otis & Hough, after having dealt with her for a considerable time, knew more or less of her financial affairs. It is also an inference capable of being drawn from the testimony that she was in financial distress when she reluctantly put up her Missouri Pacific stock to make her account with Otis & Hough good, and also that she was again in financial distress when she put up the two five hundred dollar cheeks of her uncle, Judge Eylar, to protect her account. The known difficulty and distress of Mrs. Eylar in keeping up margins might justify an inference that Otis & Hough knew of her inability to complete the purchases. The letters of Otis '& Hough in respect to her account, the receipt of money from time to time generally upon her account and the deposit of the Judge Eylar cheeks “to be used only when account requires it” are consistent with and tend to corroborate the testimony of Mrs. Eylar as to the character of the transactions. We, therefore, hold that there was sufficient evidence tending to show that these transactions were not legitimate sales to justify the case being submitted to the jury.

It is contended that the trial court erred in refusing to give certain charges requested before argument.

We find, however, that the court gave certain special charges requested by the defendant and refused others. Those given sufficiently covered the elements of the case involved in all the charges and it would not have been proper for the court to have repeated the same propositions. The court was justified in refusing the other charges for this reason alone.

It is specially urged that special request No. 1, in respect to stocks purchased before the period of recovery under the statute of limitations, was improperly refused. We think that this request was not strictly correct and that if it had been given, it would have entirely eliminated consideration of the loss of the Missouri Pacific stocks which, while purchased before the period allowed for recovery, were deposited during that period to make good Mrs. Eylar’s account and were lost. The law upon this subject was correctly and fully given in special request No. 5, and authorized a.recovery of the value of the Missouri Pacific stock, if actually put up and lost during the period of which recovery was allowed.

Special objection is also made to the following language in the general charge:

“But such a contract is only valid when the parties really intend and agree that the goods are to be delivered by the seller and the price to be paid by the buyer.”

It is contended that this was at least misleading, if not improper, because it prescribed an unnecessary burden as to the validity of the contract. While these references might have been more fortunately expressed, we are of opinion that under the entire charge the jury could not have been misled. The special charges before argument and the scope of the general charge clarified these expressions and made the court’s charge sufficiently definite.

The defendant requested the submission of the following in-, terrogatories to the jury:

“1. Did Charles A. Otis and Addison Hough in any of the transactions had between them and Margaret A. Eylar gain any profit thereby other than their brokerage commission and interest on deferred payments.
“2. In the event that special finding No. 1, is 'yes' then state in what transactions, at what times and in what amounts such profits were gained.”

It is mandatory upon a trial court to submit, when requested, interrogatories the answers to which will establish ultimate and determinative facts, but not such as are only of a probative character. Gale v. Priddy, 66 O. S., 400.

We think the. facts called for by those interrogatories were simply evidential and not ultimate and controlling. The interrogatories were, therefore, properly refused.

This case is no doubt an important one, particularly to the defendants. But under the statutes of our state and the decisions of our Supreme Court as to the nature and character of the proof, we have reached the conclusion that the evidence as to these particular transactions was of such a character as to justify the submission of the case to the jury, and that the evidence depends largely upon the credibility ■ of the witnesses is not so manifestly contrary to the verdict and judgment as to justify a reviewing court in disturbing them.

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


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    VOLUNTARY PAYMENT BY A SURETY.
    Circuit Court of Cuyahoga County.
    John Holland v. Louis J. Lee.
    Decided, December 9, 1907.

      Surety xoho Pays Debt for which He was not Legally Bound, a Mere Volunteer..

    Where the surety upon an appeal bond in a case wherein no appeal was ever perfected, pays the amount of the judgment and costs in the justice court, he is a mere volunteer and can not recover the amount so paid from his principal who failed to perfect the appeal.

      George A. Groot, for plaintiff in error.

      J. A. Thompso-n, contra.
    Marvin, J.; Winch, J., and Henry, J.. concur.
   The plaintiff in error was the plaintiff in the court below. To his petition tiled in that court a general demurrer was sustained, and the plaintiff not desiring to plead further, judgment was entered for .the defendant, dismissing the petition of the plaintiff. The action of the court in sustaining the demurrer is complained of.

From the petition it appears that a judgment was obtained before a justice of the peace by George A. Groot against this .defendant-; that at the request of this defendant the plaintiff signed the bond for an appeal from that judgment; the condition of that appeal bond being, as provided by law, that he did “promise and undertake that the said appellant, if the judgment be adjudged against him'on the appeal, will satisfy such judgment- and costs, not exceeding the sum of $60, and I do also undertake, in said last mentioned sum that the said appellant will prosecute his appeal to effect, and without unnecessary delay. ’ ’

Said appeal was never perfected, and at the expiration of the time fixed by law for perfecting such appeal the plaintiff in the action before the justice demanded of the plaintiff in this action that he- pay said judgment and costs, saying'-that if'-this .was not 'done, hie (the plaintiff in the action before the justice) would file a transcript in that action and cause a judgment to be rendered against this plaintiff in the court of common pleas.

The plaintiff herein, after said demand was made upon him, demanded of this defendant that he satisfy said judgment and costs and thereby relieve this plaintiff from the payment of the same. The defendant refused to comply with that request and to pay said judgment, and the plaintiff in order to save any further expense incident to the ease went to said justice and paid in satisfaction of said judgment and costs to which said Groot was entitled the sum of $29.85.

It is for this sum so paid by the defendant that the present suit is brought.-

It will be noticed that the appeal never was perfected by anybody; that therefore, the time never came when the plaintiff was required by law to make the payment which he did make. True this undertaking was that Lee would perfect his appeal and prosecute it to effect, and without unnecessary delay. Lee failed to do it, but there was no obligation on Holland to> pay until that appeal had been perfected by somebody. Groot could have perfected the appeal, as he threatened to do, and if he had perfected it, it is said Holland would then be bound to pay. But-he was not bound to pay unless the appeal was perfected by somebody, and it does not follow that because Groot threatened to perfect that appeal and take judgment against Holland that he would have done so. Holland must, therefore, be treated as having made a voluntary payment for Lee. Lee never requested him to make it, and it is settled that when a pure volunteer pays the debt of another, he is not entitled to recover from him whose debt he pays. See Oaks v. Campbell. 3 Ohio Decisions, 706; Gimperling v. Hanes, 40 Ohio State, 114,

The case of Williams v. Williams, 5 Ohio Reports, 44, to which attention is called by the plaintiff in error, differs materially from the one now under consideration. In that case a surety paid a debt for his principal, but it was upon an obligátion for the payment of money made by the principal and the surety jointly to the creditor. Money was due. Each of the makers of the instrument was liable upon it. Suit co\ild be maintained directly upon it against each or both and so when the surety paid, he did not pay as a volunteer, but paid upon an obligation in which he was -directly responsible to the creditor.

In the casé under consideration the plaintiff was not under any obligation to pay anything until judgment should be rendered against his principal on the appeal.

In the case of Hollinsbee v. Ritchey, 49 Ind., 261, the syllabus reads as follows:

“When a surety pays a debt, he must be legally bound for it.to enable him to recover"the amount paid of the principal, and the principal must also, at the same time, be under a legal obligation to pay the debt.
“In an action of replevin, where a bond is filed and possession of the property obtained, and afterward the suit is dismissed by agreement of the parties, the plaintiff agreeing to pay the defendant a certain sum, but where no judgment is rendered, if the surety' on the replevin bond afterward, without the request of the plaintiff, pays the amount agreed to be paid to the defendant, he can not recover the same of his principal, the payment being voluntary on the part of the surety.”

We reach the conclusion in this case that the judgment of the court of common pleas was right, and the.same is affirmed.


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    AS TO THE EQUITABLE REMEDY OF SPECIFIC PERFORMANCE.
    Circuit Court of Cuyahoga County.
    Elita E. Peck v. Elizabeth D. Osborn
    Decided, December 9, 1907.

      Specific Performance — Not Decreed ivhere Inequitable — Parol'Evidence of Mistake in Defense to Action.

    1. The equitable remedy of specific performance of contracts even when they are valid and binding at law is not a matter of course, and is so completely governed by equitable consideratonsi that it is never granted unless it is entirely in accordance with equity and good conscience.
    2. In actions for specific performance of written agreements, the defendant may show by parol evidence that, through the mistakes of both or either of the parties the writing does not express the real ' agreement, or that the agreement itself was entered into through a mistake as to its subject-matter or as to its terms.

      H. E. Parson, for plaintiff.

      Solders, Thayer & Mansfield, contra.
    Marvin, J.; Winch, J., and Henry, J, concur.
   Mrs. Peck brings a suit against Mrs. Osborn, alleging that the plaintiff entered into a contract in writing with the defendant, by which the defendant agreed to sell to the plaintiff a certain parcel of real estate, described in the petition, for sum of $8,375, and to convey the same to her by good and sufficient deed on payment by her (the defendant) of said sum. The plaintiff says that she has paid a part of the purchase money; that sheis and at all times since the making of the contract has been ready and willing to perform on her part and pay the said purchase price to the defendant, but the defendant has notified her.that she would not accept payment, and would not convey the property, and the plaintiff asks for a decree of the court that the premises be conveyed to her.

The contract upon which the plaintiff relies reads as follows:

"$50.00 402977.
"Cleveland, 0., Feb. 4, 1907.
"Received of T. T. Lewis a/e E. Peck, Fifty & no/100 ......................................... dollars to apply on purchase price of 1840 East 82nd Street. Consideration $8375.00.
"Elizabeth D. Osborn.”

The evidence shows that Mrs. Osborn owned the real, estate described; that some time in the early part of February, 1907, one Thomas T. Lewis, a real estate agent of this city, called on Mrs. Osborn, and asked if her property was for sale. She told him it was, and that her price was $10,000 but that she would probably take $9,000 and that he might find her a purchaser at that price if he could. Lewis went to Mr. Peck, the husband of the plaintiff, and who acted for her in the transaction. and suggested to him that he purchase the property. Peek and his wife visited the property and saw Mrs. Osborn. Lewis visited her several times, and also visited the Peeks; Mr. Peck finally said to Lewis that he would give $8,000, and perhaps $375 more. Lewis seems to have been anxious that Mrs. Osborn should sell at some price which Peek would give and having learned from Peck that he would probably give over $8,000 and perhaps as high as $8,300. or $8,375, and he went again to Mrs. Osborn. When Peck told Lewis that he would give something more than $8,000 he gave him a cheek for $50 to apply on the payment, if she should decide to accept the price. Subsequently, this check was taken up and another given, but as we look at the case, it is a matter of indifference about that. On this visit to Mrs. Osborn Lewis produced and asked her to sign a contract for the sale of the land at $8,375. This she refused to do. He then wrote the receipt hereinbefore quoted, which constitutes all the written contract ever entered into between the parties. Mrs. Osborn signed this receipt and the check was left with her. We find as a fact that she did not read this receipt, nor was it read to her or understood by her. It may be said that she ought to have read it, and such is the law ordinarily that she must be held to have understood what the paper was which she signed before she sig’ned it; in any event that she must be held to have known what it was. But we are satisfied from the eveidenee that she did not understand at the time she signed this that she was thereby pledging herself to sell this property for $8,375. She was in feeble health at the time; she was not accustomed to the transaction of business of any such importance as this; she was in the habit of relying upon the judgment and advice of Mr. John W. Taylor, and she did say to Lewis that Mr. Taylor was in the habit of looking after her business affairs, and that she did not want to make the sale without consulting him. But Lewis by his conduct shows that he rvas very anxious that the sale should be made at once; and indeed he was so anxious that he persuaded Mrs. Osborn to sign this receipt without waiting to consult Taylor or anybody else. The price which this receipt states to be the consideration is low, as appears from the evidence; perhaps not so low that we would be justified in refusing the relief prayed for, if Mrs. Osborn had understood Avhat she was doing when she signed this receipt, but as she did not understand it, and as she told Lewis that she would like the advice of Taylor, and as she was not accustomed to transact business of this importance on her own account, wc are of the opinion that it Avould be inequitable to hold her to a conveyance of this property to the plaintiff.

We feel justified in this holding by the authorities, some of which we cite, and from some of which we quote.

In Section 860 of Pomeroy’s Equity Jurisprudence this language is used (Yol. 2, Third Edition) :

“The second class of eases embraces those in which parol evidence of mistake is offered defensively. The equitable remedy of the specific performanc of contracts, even when they are valid and binding at law, is not a matter of course, it is so completely governed by equitable considerations that it is sometimes, though improperly, called discretionary; it is never granted unless it is entirely in accordance with equity and good conscience. It is therefore a well settled rule that in suits for the specific enforcement of agreements, even when written, the defendant may by means of parol evidence, show that through the mistakes of both or either of the parties, the writing does not express the real agreement or that the agreement itself was entered into through a mistake as to its subject-matter or as to its terms. In short, a court of equity will not grant its affirmative remedy to compel the defendant to perform a contract which the court did not intend to make, or which he would not have entered into had its true effect been understood. A mistake which is entirely the defendant’s own, or that of his agent, and for which the plaintiff is not directly or indirectly responsible, may be proved in defense, and may defeat a specific performance.”

Other language to the same effect is used in the remaining part of the section.

In Bowman v. Cunningham, 78 Ill., page 48, this language is used:

“If the contract is not certain and it is not clear from the evidence that the exact terms thereof were agreed upon and understood by the parties, and the contract is not fair in all its parts, it will not be specifically enforced.”

In City of Tiffin v. Shawhan, 43 Ohio State, 178, the first clause of the syllabus reads:

‘1 The duty of a court of equity to decree specific performance of a contract to convey real estate, can not be determined by any fixed rule, but depends upon the peculiar facts and equitable considerations of each case, and rests in the sound discretion of the court, guided and regulated, however, in the exercise aof that discretion, as far as may be, by precedent and established practice.”

See also Mansfield v. Sherman, 17 Atlantic, 300; Hatch v. Kizer et al, 140 Ill., 583; Wingart v. Fry, Wright’s Reports, 105; City of Fort Smith v. Brogan et al, 5 Southwestern, 337. See also note to the case of Hatch v. Kizer, in 33 American State Reports, page 261.

We reach the conclusion, therefore, that the petition in this case must be dismissed, the costs will he charged one-half to each party.

In reaching this conclusion it is fair to the plaintiff to say that we find no fraud or misrepresentation on the part of either her or her husband. If the conduct of any one of the parties engaged in this transaction is to be criticised, it is that of Mr. Lewis, who became the agent of the defendant, not at her solicitation, but his own, and who does not appear to have been wholly interested in the doing all that he could to procure for her the best price, but who seems to have been more anxious to make a sale of the property than to obtain for the defendant the highest price that could be obtained.