text:
    EFFECT OF AN ULTRA VIRES FEATURE IN A LIFE INSURANCE POLICY.
    [Circuit Court of Wyandot County.]
    Northwestern National Life Insurance Co. v. Jay H. Hare.
    Decided, January Term, 1904.

      Pleading — Omitted Allegation of Petition Supplied by Answer — Cause of Action for Damages Stated, When — Life Insurance — Membership in Life Association Ceases, When — Association can not Affirm or Reject Policy in Part- — Premiums Paid Under Policy Containing Ultra Tires Option, Recoverable — Liability of Consolidated Company for Obligations of Constituent Companies — Estoppel Against Plea of Ultra Tires Contracts on the Part of Constituent Companies — Failure to Pay Further Premiums Under Ultra Tires Policy.

    1. When the answer supplies an omitted and necessary allegation of •the petition, error on the part of the trial court in overruling a demurrer thereto ceases to be reversible error.
    2. A cause of action for damages in favor of plaintiff is stated when the petition, aided by the answer, sets forth broadly that defendant entered into a contract with plaintiff; that plaintiff fully performed the contract on his part; that the defendant renounced the obligation of an essential term of the contract before performance became due, and that defendant declared it would not perform that feature of the contract when it did become due.
    3. When a member of a life insurance association ratifies a transfer of its assets and obligations to another company, he thereby ceases to be a member of the retiring company.
    4. A life insurance association can not affirm its policy in part and repudiate it in part, and thus confine the insured to one of the benefits provided for therein, when the policy makes provision for two benefits, and the insured has paid for the right to elect between them.
    5. In such a case, where a consolidated company rightly pleads that the obligation growing out of one of the options was ultra vires, a cause of action quasi ex contractu immediately arises in favor of the policy holder for recovery of premiums paid; and if the disaffirmance is wrongful, the assured may treat the contract as discharged, and sue at once for its breach, or for premiums paid — a right which is not affected by failure to pay further premiums.
    Error to tbe Common Pleas Court of Wyandot County.
    In the original action commenced in the court of common pleas of this county, defendant in error was plaintiff and plaintiff in error was defendant.
    The petition states in substance that on May 5, 1891, the Omaha Life Insurance Association of Omaha, Neb., entered into a contract of life insurance with plaintiff, and then issued its policy of life insurance to him, and thereby agreed in consideration of the payment by plaintiff to it of an annual premium of $42.36, payable in quarterly installments, and due on the fifth day of each May, August, November and February during the continuance of said contract, that said association would pay, in the event of plaintiff’s death and timely and satisfactory proofs thereof, the sum of $3,000 to a named beneficiary. Said policy, among other things, also stipulated:
    “ (1) That at the expiration of ten years from the first day of January next ensuing the date of the incorporation, and every year thereafter, the managing board' of directors shall declare a dividend from the reserve fund in excess of $100,000, and cause to be placed to the individual credit of each member 'who has maintained ten .years uninterrupted membership in the association his equitable share thereof, which sum thus issued is available, and may be used by such member * * *; or (2) may be withdrawn and membership terminated.”

      The policy also provided that the sum which might be withdrawn “shall be in amount not less than ten full annual payments as paid by the insured, ’ ’ and, if the reserve fund be found insufficient to meet this liability, any deficiency therein shall be made good by transferring from the mortuary fund to the reserve fund such a sum as is required to make it good. If any member desired to so withdraw, he was required to give a certain notice of such desire and intention.
    The petition further states that after said policy was issued by said insurer, and after it had been paid' all premiums due to a certain time by plaintiff, said insurer transferred all its rights and interests in the said policy to the Omaha Life Insurance Association of Minneapolis, Minn. Plaintiff paid all premiums to this succeeding association until a later date when the rights and the interests of the- latter were in turn transferred by it to the National Mutual Life Insurance Association of Minneapolis, and after further payments by plaintiff the latter association transferred its interests in said policy to defendant. Plaintiff has paid the premiums falling due since the last transfer to defendant. It is alleged that all these associations were in fact one organization, differing in name only, and that the stated transfers were made only because the said changes of the name rendered the same necessary. Plaintiff states that he gave- due notice of his intention to withdraw his dividends under the quoted provisions of his policy; that defendant has not provided a fund to pay plaintiff, refuses to settle with him, has declared plaintiff’s policy forfeited, and refuses to pay him the amount alleged to be due. Plaintiff prays to recover the amount of ten full annual payments as made by him with interest from the date each payment was made. This action was commenced August 3, 1901.
    Defendant’s general demurrer to the petition was overruled. It then answered (1) a general denial; (2) that the alleged assumption of said obligation-of plaintiff’s policy is and was ultra vires as to defendant and its immediate predecessor; (3) that no fund exists or has existed from which plaintiff can be paid, and it is ultra vires for defendant to create such fund; (4) that plaintiff failed to pay the quarterly premium on his policy due May 5, 1901, and that by reason thereof said policy under its terms became and at the commencement of this action was null and void.
    Plaintiff by reply denies all allegations of the answer, and pleads an estoppel to the defense of ultra vires.

    Upon these issues the action was tried to a jury. Defendant at the trial objected to the introduction of any evidence by plaintiff for the assigned reason that the petition is fatally defective. This motion was overruled. At the close of plaintiff’s evidence defendant moved for a verdict. This motion was overruled. The motion was renewed at the close of all the evidence and was again overruled. The jury returned its verdict for plaintiff. Defendant’s motion for a new trial was overruled, and judgment was entered for plaintiff upon the verdict. A bill of exceptions was duly taken, embodying all the evidence and proceedings at the trial, and defendant now prosecutes error here to reverse the judgment of the common pleas.
    The errors assigned embrace in general and in detail all the rulings made by the trial court adverse to defendant, and to all of which due exceptions were taken.
    Mooney, J.; Norris, J., concurs; Day, J., dissents.
   If this action be viewed as one to enforce any of the terms of the policy, it seems to be very clear that the petition does not state facts sufficient to constitute a cause of action. The stipulation of the policy as pleaded is that on January 1, next'after the expiration of ten years from the date of incorporation of said Omaha Life Insurance Association of Omaha, Neb., a dividend will be declared, etc., and upon due notice and after ten years uninterrupted membership plaintiff may withdraw. Unless said association were incorporated prior to January 1, 1901, the time at which the dividend was first to be declared under this stipulation had not arrived on May 5, 1901, and the defendant in the original action could not have been in default when the action was commenced. There is no allegation in the petition as to the date of incorporation of said association, and hence no default is charged' against defendant,

Again, the stipulation does not require any dividend to be declared in favor of any member until his membership has been of ten years uninterrupted duration. The first dividend is to be declared on January 1 “and each year thereafter.” The meaning is “and on January 1 of each year thereafter.” Plaintiff had not been a member for ten years on January 1, 1901, and hence he was not entitled to have a dividend then declared in his favor, and this action was commenced before January 1, 1902, the earliest date at which defendant could be in default to plaintiff for failure to declare a dividend in his favor.

It is here contended by defendant in error that the action is not one to enforce the contract or any term of it, but to recover damages on account of the renunciation of the contract by defendant below.

While the allegations of the petition are somewhat indefinite upon the point, we are of opinion that it fairly appears from the pleading that defendant, upon demand of a settlement as claimed by plaintiff, refused to make such settlement, not for the reason that the time for settlement had not arrived, but because defendant denied its obligation to make such settlement at any time. The uncertainty of the petition on this point is aided by the answer, in which defendant denies the obligation, for the reason, -among others, that the term of the contract is ultra vires as to all said associations. In such state of the record, even if the demurrer should have been sustained to the petition, the error in overruling it ceases tó be reversible error when the answer filed supplies an omitted and necessary allegation of the petition. Yocum v. Allen, 58 Ohio St., 280.

So aided by the answer, the petition states broadly that defendant, having entered into a contract with plaintiff, renounced the obligation of an essential term of that contract before performance became due, and declared that it would not perform that term of the contract when the time for such performance should fall due; wherefore plaintiff asks to recover the consideration paid by him to defendant, as full performance of the contract upon his part. We are of opinion that these facts entitle plaintiff to recover some amount as damages from defendant, and this whether the terms of the policy were ultra vires or not.

If the contract be ultra vires, and the insurance association properly refuses to perform, an action quasi ex contractu springs up in favor of Hare to recover the premiums which he has paid. Phoenix Life Assn. Ins. Co., In re, 2 Johns. & Hem., 441; Andrews v. Insurance Co., 37 Me., 256, 257; Miller v. Insurance Co., 92 Pa. St., 167; and see Insurance Co. v. Tullidge, 39 Ohio St., 240; see also Branch v. Jesup, 106 U. S., 468; Central Transp. Co. v. Car Co., 139 U. S., 24; Morville v. Tract Soc., 123 Mass., 129 (25 Am. Rep., 40); Davis v. Old Colony Railroad, 131 Mass., 258, 275 (41 Am. Rep., 221); 5 Thompson, Corporations, Section 6004; 1 Clark & Marshall, Corporations, Section 215.

If the contract be not ultra vires, and the disaffirmance be. wrongful, the case is simply one of renunciation of the obligation of an essential term of a contract by a party before performance upon his part becomes due. In such case the other party may treat the contract as discharged and sue at once for. damages for its breach. Clark, Contracts, p. 644, et seq., citing cases.

The fact that the recovery sought is alleged to be for premiums instead of damages or for performance instead of damages for non-performance, is immaterial. James v. Allen Co., 44 Ohio St., 226.

It follows that in any view of the case the demurrer to the petition and the motions to direct a verdict for insufficient pleadings were properly overruled.

We are of the opinion that there is error in this record in the admission of evidence, and in the charge of the court to the. prejudice of plaintiff in error, and in the refusal to charge as requested by defendant below. In this state of the record, the judgment of the common pleas must be reversed unless, upon the admitted or undisputed facts, the judgment is well founded in law.

The facts either admitted or undisputed are these: On May 5, 1891, the Omaha Life Insurance Association of Omaha, Neb.,. issued its certificate of membership and policy of life insurance to defendant in error for $3,000, payable in the event and upon satisfactory proofs of his death to a named beneficiary. The insurer was a Nebraska assessment life insurance corporation. Premiums were payable as stated in the petition. ITare paid all premiums maturing until May 15, 1895, to said insurer, and at this date “all the liabilities or obligations of the Omaha Life Insurance Association of Omaha, Neb., under any and all policies or certificates of insurance or membership in said association” were assumed by the Omaha Life Insurance Association of Minneapolis, Minn., a Minnesota assessment life insurance corporation. The former association retired from business and transferred its assets and business to the latter corporation. The latter issued its certificate to defendant in error and thereby undertook “to bind itself to perform the obligations of the insurer under his policy” as fully as if the same were issued in the name of the Omaha Life Insurance Association of Minneapolis, Minn. Defendant in error ratified the arrangement entered into between these corporations and paid all premiums maturing between May 15, 1895, and December 5, 1898, to the last-named corporation.

On December 5, 1898, said last-named corporation was succeeded by the National Mutual Life Association, a like Minnesota corporation, and by the provisions of a certain contract entered into between the companies the assets of the Omaha of Minneapolis were transferred to the National Mutual, and the latter assumed “all the obligations or indebtedness on account of the policies” of the former, and the Omaha, of Minneapolis, retired from business. Defendant in error ratified this arrangement and paid all premiums maturing thereafter until and including the one due February 5, 1901, to the National Mutual.

On February 21, 1901, the assets and business of the National Mutual were absorbed by plaintiff in error, and thereafter plaintiff in error treated with defendant in error as its member and policy holder, demanded the payment of further premiums, tendered an option other than the one stated in the policy in settlement, declared that the policy would become null and void in a certain contingency, stated on April 23, 1901, that “the only liability which this company has now under your contract is the liability to pay your death loss should it occur,” all before the original action was commenced, and in the original action set up the defense of ultra vires. In ratifying each of the assumption agreements defendant in error ceased to be a member of the retiring company in each instance. None of these companies had corporate power to contract to return premiums paid or to create a fund to be applied for that purpose. The policy issued by the original insurer to defendant in error, the obligation of which was assumed by the succeeding companies to and including the National Mutual, stipulated for the declaration of a dividend with options to the insured as stated in the petition.

The obligation of the original insurer under the policy was to pay $3,000 in the event of death, or at the election of insured at a certain date to pay in final settlement an amount in cash 1 ‘ equal to ten full annual premiums as paid by insured. ” It ■ is very evident that the insurer can not defend against the election and option on the ground of ultra vires, and at the same time insist that defendant in error should be held to the “whole life” clause of the contract. In consideration of his payment of premiums, defendant in error under the contract was entitled to one stipulated benefit no less than the other at his election. The insurer could not affirm in part and repudiate in part the terms of the contract, and thus confine defendant in error to one benefit when he had stipulated and- paid for the right to elect between two benefits. The insurer’s contract was and is void for want of power to make it, and the contracts of the succeeding companies, except plaintiff in error, were and are each void for the same reason. Inasmuch as the performance that still remains due consists of the very ultra vires act itself, it is believed that if the insurer were a party here the doctrine of estoppel would not apply. The eases are in conflict upon the question, but without discussion we hold, we believe in accordance with the weight of the authority, that defendant below was not estopped to make the defense of want of power. 1 Clark & Marshall, Corporations, Section 214b. Compare 1 Clark & Marshall, Corporations, Section 214a.

If the contract of insurance is void on the ground of ultra vires, and if defendant is not estopped to make the defense, and if the original insurer were that defendant, it is very clear that plaintiff below could recover from the insurer the premiums which it had received upon the contract.

“The courts, while refusing to maintain any action upon the unlawful {ultra vires but not immoral) contract, have always striven to do justice between the parties.” Central Transp. Co. v. Car Co., 139 U. S., 24, 60.

“If the contract is ultra vires, and either party disaffirms it on the ground that it is ultra vires, and refuses further execution of it, then, while the other party can not sue to recover damages or compensation in respect of the unexecuted portion of the contract, yet the law will afford him remedies for procuring from the other party a restoration of what he has lost under it.” Thompson, Corporations, Section 6004; Andrews v. Insurance Co., 37 Me., 256, 257; Miller v. Insurance Co., 92 Pa. St., 167.

Plaintiff below never paid any premiums to defendant below. The liability, if any, of defendant must, therefore, result from the contract whereby the National Mutual was absorbed, amalgamated, merged in or consolidated with said defendant, and whereby plaintiff was received, adonted and recognized as a member of defendant company.

In Langhorne v. Railway Co., 91 Va., 369, 374, it was held that:

“The surviving corporation, when another or others are merged into it or consolidated with it, is ordinarily deemed the same as each of the corporations which formed it for the purpose of answering for the liabilities of the old corporation, and may be sued under * * * the name of the surviving company for their debts, as if no change had been made in the name or in the organization of the original corporations.”

In Louisville, N. A. & C. Ry. Co. v. Boney, 117 Ind., 501, it is said:

“The act of consolidation involves an implied assumption by the new company of all the valid debts and liabilities of the consolidating companies.”

In Berry v. Railway Co., 52 Kan., 774, it is said:

“The debts of the original companies follow as an incident of the consolidation, and become by implication, in the absence of express provision, the obligations of the new company.”

In Day v. Railway Co., 151 Mass., 302, 308, it is said:

“The new corporation is a new person, for the acquisition of new rights, or the making of new contracts, (but) the old corporations shall not be altogether ended, but shall continue under the new name, so far as to preserve all their existing obligations unchanged.”

We hold in line with these cases that the liability of plaintiff in error is precisely the same as though it were the National Mutual. The determination of the amount for which the National Mutual would be liable if sued by plaintiff .below is the remaining question in the case.

When the original insurer transferred its assets, including its good will, to the Omaha of Minneapolis, the former was indebted to plaintiff below in an amount equal to the aggregate of the premiums paid to it by Hare on account of his policy. The solvency of the original insurer at that time must be presumed. The power of the Omaha of Minneapolis to acquire said assets and good will must also be presumed, and its power to pay for that which it had the right to purchase can not be denied.

A part of the purchase price which the purchasing company •agreed to pay was the assumption of the claim which Hare then had against the original insurer. Hare consented to the arrangement, and thereby released the original insurer. Hence, at the beginning of its career the Omaha of Minneapolis, by virtue of its contract with its predecessor, became indebted to Hare in an amount equal to the premiums paid to the original insurer. The Omaha of Minneapolis, while in business, increased this indebtedness by receiving further premiums from Hare. At the time of the transfer by the latter of the National Mutual, the succeeding company, as part of the purchase price, assumed the indebtedness of its predecessor. That amount would be the aggregate of the premiums paid as we have seen. To this arrangement Hare again assented and released the Omaha of Minneapolis. All the remaining premiums were paid the National Mutual. Unless there are some circumstances in the case that require a different result, it would seem clear that the amount of recovery to which, as against the National Mutual, plaintiff below would be entitled would be the aggregate of the premiums paid on the policy to all the companies. But one fact requires notice. At the time of the transfer by the Omaha of Minneapolis, to the National Mutual, of all its assets and good will the record’ shows that the Omaha had no funds “of itself” sufficient to pay its natural death claims alone. It must be assumed that the National Mutual at the time of the transfer to it was solvent.

Whatever the amount of its funds may be the Omaha succeeded in disposing of its business to a solvent purchaser upon a contract that the purchaser would pay all the Omaha’s obligations and indebtedness upon its policies. This may be true because of the value of the good will alone. The assumption of Hare’s claim by the National Mutual makes it quite unimportant in the ease whether the funds on hand were sufficient to pay Hare or not at the time of the transfer. It follows we think that the National Mutual owes Hare the amount of the premiums paid by him on his policies before December 5, 1898, because the National Mutual in and by a contract which it had the right to make, and upon a consideration moving from the Omaha of Minneapolis, agreed to pay the claim, and upon a further consideration moving from Piare, to-wit, the release of the Omaha of Minneapolis, by Hare, further agreed to pay Piare. For the business it has received from Hare since December 5, 1898, the National Mutual is liable to him, because it received the money upon an invalid contract and the consideration for the payments by Piare has failed. The National Mutual would be liable to Piare for the full amount of all the premiums paid to all the insurance companies, and such was also the liability to him of the plaintiff in error.

If the contract of insurance was valid, and its repudiation by defendant below was wrongful, the right to recover and the amount of recovery would be the same. Insurance Co. v. Tullidge, 39 Ohio St., 240.

Brown & Kerr and Garter & Goodrich, for plaintiff in error.

Carey & Parker, for defendant in error.

It is manifest that the failure of plaintiff below to make further payments of insurance upon an insurance contract, which was void from the beginning, could in no view result in any forfeiture of his right to recover the premium already paid.

Upon the whole case this court, by a majority of the judges, holds that the judgment of the common pleas is the only judgment which under the law should be rendered in the case.

Judgment accordingly.

Day, J., dissents, and for errors in the record, in the admission of evidence and in the charge, would reverse the judgment


source: Caselaw Access Project

license: Public Domain

text:
    INJURY TO EMPLOYE OUTSIDE THE LINE OF HIS EMPLOYMENT.
    [Circuit Court of Lucas County.]
    The Toledo, Bowling Green & Fremont Ry. Co. v. Conrad Pfisterer.
    Decided, June 25, 1904.

      ’Negligence — Interurban Railways — Volunteer—Fellow-Servant—Injury from Fall of Trolley Pole.

    One who is employed as a section hand by an electric railway company and is, while riding to his place of work in one of the company’s passenger cars, thrown therefrom and injured while attempting in a proper manner to preserve the company’s property from danger by replacing the trolley-pole wheel on the wires, is not to he considered as a mere volunteer, hut is entitled to protection as an employe against the company’s negligence in the premises, where it also appears that the conductor, whose special duty it was to replace the wheel,, was inside the car taking up tickets at the time, and was unaware of the situation, and that plaintiff was experienced in, and had performed the same service before to the knowledge of the conductor and the superintendent and manager of the company.

      Hull, J.; Haynes, J., concurs; Parker, J., not sitting.
   Pfisterer was the plaintiff below, and brought his action against the railway company to recover damages for injuries which he claims he sustained on account of the negligence of the railway company. The railway company claimed that it was not negligent in the respect complained of, and further, that Pfisterer, in what he did and was doing at the time of his injury, was a volunteer merely, not in the employ of the company for that purpose, and therefore that the company was not liable to him.

. The plaintiff in error, the defendant below, was operating an electric street or interurban railroad between Perrysburg and B'owling Green, Wood County, Ohio, at the time of Pfisterer’s injury, in June, 1900. He was enployed >at that time as a section man, engaged either in building or repairing the road somewhere in the neighborhood of Bowling Green, and on the morning of the day of his injury, he, with other section men, left Perrysburg on a car leaving there at 6:10 o ’clock to go to the place where they were to work. After they had proceeded a few miles, the' evidence tends to show that Pfisterer was standing in the vestibule of the car. There is some evidence that he was inside, and went out, but the evidence tends to show that at the time of his injury he was standing in the vestibule. The car was going from twenty to thirty-five miles an hour. There is some conflict on this, but it was clearly going at a high rate of speed. There is some question as to where the conductor of the car was at the time, but we think the evidence shows that he was somewhere inside the car, probably within three or four seats of the rear of the car.

The trolley pole wheel came off the wire as the car was running along at this rate of speed. There were cross-wires, as is usual, some ninety feet apart — guy-wires, perhaps called— and when the trolley pole came off it struck these wires. The evidence shows that Pfisterer was standing in the rear of the vestibule of the car, right at the window, and took hold of the trolley rope, for the purpose of putting the wheel back on the wire, and when he pulled down on the rope, the pole became detached from the top of the car, came out of its socket, and fell off the car and struck the ground, and Pfisterer became entangled in the trolley pole rope at the rear end of the ear, and it became wrapped around his body or limbs, and when the pole struck the ground Pfisterer was suddenly pulled out of the back window to the ground, striking the ground violently. The trolley pole was attached to the car, and after Pfiisterer was thus pulled out of the window he was dragged along by the rope quite a distance behind the car, until it was cut by the conductor. He was seriously injured. The trial resulted in a verdict of $1,250, on which judgment was entered. These proceedings in error are to reverse that judgment.

There were various grounds of negligence set up in the petition — as to the- speed the car was going, the fact that the rope was atached to the rear of the ear, and other claims were made by the plaintiff — but the case was finally submitted to the jury upon one ground of negligence: that the trolley pole was insecurely fastened in its socket on the top of the car, and as a consequence the plaintiff was injured in the manner stated. All the other claims of negligence were excluded by the court in its charge to the jury.

The railroad company claims that Pfisterer at the time was a mere volunteer, and therefore not entitled to recover. He was not employed, it is urged, to do anything in the way of running or managing the ear. He was simply going to his work, it is said, as a section man; and that it was the duty of the conductor to run the car; that therefore Pfisterer comes under the rule of law that one who volunteers to interfere with the business of another can not recover.

It is claimed, on the other hand, by Pfisterer, that he did this at the request of the conductor, and that the circumstances were such at that time that he ought not -to be regarded as a volunteer. It is claimed further by Pfisterer that he and other section men had performed this service upon the cars of the road in the presence of the superintendent and manager of the company, while riding on the cars, so that the service would be regarded as having been done under the authority and with the consent of the company; and that therefore he was entitled to the same protection when doing that work as when doing work as a section hand.

The court in its charge to the jury required the jury to find, in order to entitle the plaintiff to a verdict, that this work had been done by Pfisterer or other section men in the presence of the manager and officers of the railway company such a length of time as to show their knowledge and consent to his performing such service, and that unless they found this, they should return a verdict in favor of the defendant. Upon this charge a verdict was found in favor of the plaintiff.

It is claimed by the defendant in error that he was entitled to recover whether the jury were warranted by the evidence in finding that the company had knowledge that he was performing such service or not. A number of authorities have been cited by counsel both for the plaintiff and for the defendant, upon the question of the liability of the company to Pfisterer while performing this service.

It has been held by the Supreme Court in 63 O. S., 236, and 43 O. S., 224, substantially that where one is requested by an employe of a company to perform a service for the employe in behalf of the company, that if such person complies with the request, and has at the same time an interest in the performanc of the work himself, that he is entitled to protection from the negligence of the employer or the servants of the company. It is said that a person thus situated is not to be regarded as a trespasser or as a volunteer; that he is upon the premises of the master, while not with his consent, yet without his objection, and that at the same time he is doing something in which he himself is interested, and that he is not to be regarded, as the court say, as a volunteer or as a servant, but that his position is somewhere between the two; that he is doing this work, as the Supreme Court say, by suffrance of the master; that he himself having a personal interest in doing it while doing it, he is entitled to protection. This question is discussed at some length in 63 O. S., 236. This is said in the third paragraph of the syllabus.

“One who is invited by a servant of a corporation in charge of its work or service to assist him therein, and does so with some purpose or benefit to be subserved in his own behalf in addition to the purpose of so assisting, is not a volunteer, and is entitled while so assisting to be protected against the negligence of the servants of the company.1 ’

And the question is discussed quite fully in the opinion by Uudge Burket. In this case it was the duty of the station agent of the railroad company to set the lights in the switches near the station house. Instead of doing it himself, he employed a hoy, the plaintiff, to do it for him, and gave him some compensation for the service; and while the boy was doing the work, he was injured by a torpedo that had been left on the track. The court held that the boy was not to be considered as a mere volunteer or trespasser, as he was doing the work at the request of an employe of the company, and had himself a personal interest in it.

The case in 43 O. S., 224, is cited in the case in 63 O. S. with approval. In this case a man was riding on a street car — a horse car evidently — and the car had gone past a siding where it was to pass another car. It became necessary to shove the car back to the switch to allow the other car to pass, and this passenger assisted at the request of an employe of the railroad company in doing the work, and while so doing was injured. The court held he was not a mere volunteer, for the reason that while he had no financial interest in'this transaction, he was interested in continuing his journey, and having the car proceed without delay, and he having done this at the request of the employe of the company, he was held to be neither volunteer nor a trespasser.

It was sought to show in the ease at bar that Pfisterer had a financial interest in having the car proceed. It was claimed that his day’s work, his time for the day, did not begin until he had reached his work; that he ought to be there at 7 o ’clock in the morning, and if he was not there he would be “docked.” This, however, was disputed, and it was claimed on behalf of the company that his time began from the time he got on the car at 6:10 in the morning, and that he and the other workmen stopped at 5 in the evening. We are inclined to think that the weight of the evidence shows that his time began when he got on at 6:10 in the morning, and therefore he was traveling on the “company’s time,” as it is called, at the time of the accident.

It is clear from the record that no objection had ever been made by the officers of the company, and there is evidence tending to show that section men had done this kind of work before, and that plaintiff and others had done it on the work train. The evidence tends to show that on a former occasion the conductor had requested Pfisterer to do this work for him. Kinney was the name of the conductor. He was not called as a witness, and the testimony of the plaintiff was undisputed that Kinney had before that requested him to do this work for him, at times when the conductor was busy in the car.

No case has been called to our attention exactly like this one, but it seems to us, after reading this record very carefully, that under the circumstances Pfisterer was entitled to protection against the negligence of the company. He was in fact in the employ of the company; at the time he was not a trespasser on the car; he was on his way to his work; he had performed this service before at the request of the conductor; he was not interfering arbitrarily, or interfering where he knew his services were not required; he was not doing anything that he had been told not to do. The conductor, at the time this occurred, according to the weight of the evidence, in our judgment, was inside the car where he could not immediately attend to the matter, engaged in taking up tickets. Pfisterer, we think, as he claims, was standing in the vestibule when the wheel came off the wire, and if so, he was the nearest to the rope. There were some other men standing there, but no one ‘'nearer than he. As soon as the wheel came off the pole began to strike upon the guy-wires. It interfered with the progress of the car. If it had not been gotten on again soon, it would have been necessary to stop the car. The property of the company was in danger of damage; the cross-wires were in danger of being broken or injured. It seems to us, in view of the facts that Pfisterer was at the time in the employ of the company, that the property of his master was in danger of damage, that the speed of the car upon which he with other section men and passengers was being interfered with and .impeded by this accident, that he had the right, as such employe, and that it was his duty, to put out Ms hand to replace the pole and protect the property of the company in whose employ he was. It does not appear that he' did this work in any improper manner. The evidence shows that he had had experience in doing this kind of work. It does not appear that he was incompetent to do it. He had done it before on both passenger and work trains.

We find no case directly in point. There are many cases where a servant has stepped out of the scope of Ms employment ait the request of employes, without any reason for doing it, where it has been held that he could not recover, and where an outsider, with no interest himself, has been called in by an employe to aid him in his employment, it has been held that he was a mere volunteer and could not recover.

We all know as a matter of common knowledge, when a trolley wheel comes off the wire, with the car going twenty-five miles an hour, what the consequences are. It seems to us it ought not to be the law, where an employe is standing by under such circumstances, that if he lifts his hand to preserve the property of the company — attempted to do a tMng which he was perfectly competent to do — that he did this at his own risk, and was not entitled to protection against the negligence of his master. And we think, regardless of the way in which the case was submitted to the jury, that plaintiff had the right to the protection of an employe of the company. The court, however, did not go that far. It instructed the jury that the plaintiff could not recover, unless they found that this had been before that done with the knowledge and consent of the company, through its officers, and there was evidence tending to show that the plaintiff and others had done this when the manager and the superintendent were on the ears. It appears from the testimony of the manager that the company did not, so far as he was concerned at least, disapprove of a section man doing this kind of service, if he was on the car at the time and where he could take hold of the rope. He was asked tMs question: “As a matter of fact, you expect every employe of the company to look out and preserve the property of the company, don’t you?” And he answered, “Yes sir.” We are not prepared to say that the jury were not warranted in finding tbat this work had been done by section men on former occasions 'with the knowledge and consent of the officers of the company.

King & Tracy, for plaintiff in error.

C. A. Thatcher, for defendant in error.

As to whether the company was negligent or not in the matter of the trolley pole, we think the evidence tends to show quite strongly that this pole had been loose in its socket for some considerable time before this accident, and that the jury were warranted in finding that it was out of order and had been for such a length of time as to charge the company with notice of its condition. That being our view, it is not necessary to discuss the question as to whether inspectors of cars were fellow-servants of the plaintiff or not.

We feel, that the plaintiff should not be considered a mere volunteer, but that he was entitled to protection against the negligence of the company while performing this service. The judgment of the court of common pleas will therefore be affirmed.


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    ERROR TO THE WITHDRAWING OF A CASE FROM THE JURY.
    [Circuit Court of Mahoning County.]
    Maggie McCallen v. Lake Shore & Michigan Southern Railway Company.
    Decided, October Term, 1904.

      'Withdrawal of Evidence from Jury — Petition in Error must be Filed, "When.

    Where the court withdraws the evidence from the jury and dismisses the petition of plaintiff for the reason that there is no evidence to support the claim of plaintiff, and upon the same day a motion for a new trial is made, which is overruled at a subsequent term of the court, a petition in error which is filed more than four months from the rendition of the judgment dismissing the petition of plaintiff but within four months from the overruling of the motion for a new trial, is too late, and the proceeding in error should be dismissed.

      . Cook, J.; Laubie, J., and Burrows, J., concur.
    The question for consideration in this case is the motion of the defendant in error to dismiss the proceeding in error, for the reason that the petition in error was not filed in time.
   The action below was for damages for negligently causing the death of plaintiff’s husband in the state of Pennsylvania, and is brought under favor of the statute of that state.

At the conclusion of plaintiff’s evidence, upon motion of defendant, the court withdrew the evidence from the jury, for the reason that there was no evidence to support the claim of plaintiff, and rendered a judgment dismissing the petition of plaintiff at her costs, awarding execution therefor. Upon the same day the judgment was rendered, a motion for a new trial was duly filed; the hearing of the same was continued until the next term of the court, and at the next term of the court the motion for a new trial was overruled, but no further order made or judgment rendered.

The petition in error was filed within four months from the overruling of the motion for a new trial, but more than four months after the rendition and entering of the judgment dismissing the petition of plaintiff and for costs against her.

Section 6723 provides:

“No proceedings to reverse, vacate or modify a judgment or final order shall be commenced, unless within four months after the rendition of the judgment or the making of the final order complained of. * * *”

In the ease of Dowty v. Pepple et al, 58 O. S., 395, which was decided when the period of limitation was six months, it was held:

“The six months within which error proceedings may be commenced under Section 6723, Revised Statutes, begins to run from the date of the judgment sought to be reversed and not from the overruling of the motion for a new trial. Nor is the ease different, although the reason for delay in passing upon the motion for a new trial was that the trial judge was a nonresident of the county, and absent therefrom until after the expiration of the six months.”

J. K. Kennedy and W. S. Anderson & Son, for plaintiff in error.

Arrel, McVey & Taylor, for defendant in error.

The case of Dowty v. Pepple et al was tried by the judge without the intervention of a jury; a motion for a new trial was heard and submitted to the court within a few days after the rendition of the judgment, but by reason of the continuous absence of the judge from the court, the motion was not passed upon until after the expiration of six months from the rendition of the judgment.

The opinion is by the court and the case of Young v. Shallenberger, 53 O. S., 291, in which it was held “that the statute has declared in explicit terms, that no proceeding to reverse a judgment shall be commenced unless within six months after the rendition of the judgment, and the court is powerless to enlarge its terms if it desired to do so,” was approved.

In the case under consideration there was no verdict of a jury, but the finding was by the court, that there was no evidence to support plaintiff’s petition. Therefore the petition of plaintiff was dismissed at her costs. Had there been a direction of the court to the jury to return a verdict for defendant, then, under Section 5326, where the motion for a new trial was filed within three days, as was done in this case, no judgment could be rendered or entered until the motion was passed upon which would make a different case.

It therefore follows that the petition in error must be dismissed at costs of plaintiff in error.


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    INSTRUMENTS OF CONVEYANCE.
    [Circuit Court of Lucas County.]
    Charles R. Lee, Administrator with the Will Annexed of the Estate of Albert E. Scott, Deceased, v. Eleanora S. Scott et al.
    Decided, October, 1904.

      Deed — Conveyance of a Fee — Reduced to a Life Estate — By a Separate Instrument — Use of the Word “Heirs” — Lands Acquired after Making of Will.

    1. "Where by deed an estate in fee simple is granted, the same can not be reduced to a life estate by another instrument executed concurrently with such deed, purporting to reserve a fee to the grantor in the deed or to convey a fee to another to vest upon the death of the grantor in the deed, unless such other instrument shall contain appropriate operative words of conveyance of such remainder or reversion.
    2. In Ohie it is necessary as a general rule to use the word “heirs” in a deed to convey an estate of inheritance.
    3. The rule in Pruden v. Pruden, 14 O. S., 251, that “lands acquired after the malting of a will disposing of all the testator’s property * * * will pass under its provisions ” applies in a case where at the time of malting such will the testator was interested in the property as the purchaser of a mortgage thereon, of which property he subsequently became the owner in fee by conveyance of the equity of redemption.
    Parker, J.; Hull, J., and Haynes, J., concur.
    This case is in this court on appeal. Primarily it was an action brought by the administrator named to bring to sale real estate, in this city, which he alleged belonged to the decedent, in order that the proceeds might be used to discharge decedent’s debts; but it appearing that the legal title was not in decedent at the time of his death, or at least not clearly so, the facts in respect thereto are set forth in the petition, and it is asked that the title may be quieted. There is serious resistance to this application, for it has aroused the opposition of various interested parties. They are all brought into court and file their answers and cross-petitions, and the issues are made up and the question of the ownership of this property is submitted to this court; and that is the principal issue in- this case. Certain facts with respect to this property and the relationships of the parties are set forth in the amended petition, many of which are not disputed. It is therein averred that Albert E. Scott died on September 29th, 1903, leaving a will, in which he nominated Mary D. Scott, his wife, as executrix, and by which he devised and bequeathed to her all of his property, both real and personal, after the payment of his debts and funeral expenses, but that his wife died two days before he died, whereby this devise and bequest lapsed. It sets forth the amount of the property of the decedent and the amount of his debts, and about these there is no controversy; it is conceded that the situation of his estate is such as that this property should be brought to sale to pay these debts, if it was his property. The amended petition proceeds to state that the decedent left no widow, nor children, nor any descendants of children, but left as his next of kin and heirs at law certain persons, who are named, and it also sets forth all his heirs on his maternal side as well; that these various persons, as heirs or as devisees under the will of Marion L. Scott, his mother, claim some interest or title to this property, which consisted of a single lot with a dwelling thereon, described as lot No. 868 in the Vistula division of the city of Toledo, Lucas county, Ohio; that the property was occupied by decedent in his lifetime as a homestead. And the plaintiff avers that said premises formerly belonged to Frances P. Lyman, mother of said Mary D. Scott, who was decedent’s wife, and that upon the death of Frances P. Lyman she devised the same in equal shares to her husband, James Lyman, and said Mary D. Scott, by will duly admitted to probate in said county; and that thereafter, on February 16, 1872, the said James Lyman, in consideration of one hundred dollars, conveyed all his interest in said premises to said Mary D. Scott, by deed recorded March 16, 1872, in Vol. 71 of Deeds, page 230; and that thereafter, on January 29, 1883, said Mary D. Scott and said Albert E. Scott, in consideration of one dollar and the execution and delivery to them of the indenture and other considerations mentioned, conveyed said premises to Marion L. Scott, the mother of said Albert E. Scott by deed filed for record on January 31, 1883, giving the date of record, volume and page.
    “That while said deed standing alone appears to be absolute upon its face, it was not so intended by the parties thereto, but was intended to be, and in fact was, only a conveyance of the naked legal title of said property to said Marion L. Scott, to hold the same in trust during her life for the joint use and benefit of the grantors therein, and at her death said legal title was to revert to said Mary D. Scott in fee simple; that said limitation and trust were duly set forth and declared by an instrument duly executed by all of the said parties at the same time and as á part of the same transaction and as a part of said deed, in the form of an indenture of lease, a copy of which is attached hereto and made a part hereof, marked Exhibit A, and which was filed for record at the same time with said deed and duly recorded in Volume C of Leases, pages 571 and 572 of the records of said county. That by the provisions of said deed and said declaration of trust taken together, said Marion L. Scott agreed and covenanted to stand seized of said premises during her life for the use and benefit of said Mary D. Scott and Albert E. Scott, who were to have full and complete possession and enjoyment thereof, and to pay all taxes and assessments thereon, insure the buildings thereon, and make all necessary repairs and alterations and to have the right to sell or dispose of said property in fee simple; and said Marion L. Scott further covenanted therein that in the event of her death said property should revert in fee simple to said Mary D. Scott, the original owner thereof; and it was further covenanted therein between said parties that said Albert E. Scott should have, during his lifetime, a joint interest in benefits arising from rents or sale of said premises or other property bought with the proceeds thereof, and in case he survived his wife, he should then have full and entire use thereof. Plaintiff says that said Marion L. Scott never had any beneficial interest in said premises, but that from the date of said trust deed to the time of her death she held only the naked legal title thereto in trust as aforesaid, and that the equitable title and beneficial ownership thereof was during said interval held by said Mary D. Scott. Plaintiff further says that at the time of the execution of said trust deed and declaration, said Albert E. Scott was the only surviving child of said Marion L. Scott, he being the offspring of her marriage with her uncle, Samuel Belden Scott, a brother of her mother, and said Albert E. Scott was then, and practically all his life had been, and thereafter continued to be, somewhat weak and lacking in physical health and strength, and moderate in capacity, and, therefore, his mother, said Marion L. Scott, was at all times very solicitous about his welfare and took much care of him, making provisions for his needs and advising and assisting him in the management of his affairs; that at said time he owned no real estate and but little personal property, and for a long time theretofore he had lived, and was then living, with his said wife in said homestead property belonging to her, which was substantially all the property she owned, and which continued thereafter to be their home and remained in their possession and ownership until their death; that said Albert E. Scott was about forty years old and his said wife about forty-three years old when said trust was executed, and neither of them had any children nor any probability of having any, and both in fact died childless. Plaintiff further says that, in view of said situation and circumstances of said parties, it was their intention and purpose by means of said trust deed and declaration to secure to the grantors in said deed and protect them in the use and enjoyment of said homestead, and especially to secure to said Albert during his life an interest in the use and enjoyment thereof and protect him therein. That said Marion L. Scott died on April 30, 1887, and thereupon her trusteeship and title under said deed ceased and determined, and said premises reverted in fee simple to said Mary D. Scott in accordance with the limitation contained in said declaration of trust, and she thereafter continued to own and hold the same in fee simple until September 27, 1903, when she died, leaving a will which was, on October 9, 1903, duly admitted to probate in the probate court of said county, and by which she devised and bequeathed to her said husband Albert E. Scott, all her real and personal property, subject to the payment of her debts and the erection of a suitable monument for her. ”
   Now, upon these allegations, as I have said, there is based a prayer for the quieting of this title and for a sale of the property, and much that I have read and stated is not disputed. It is contended, however, on the part of others interested, and resisting this application, that the consideration of the conveyance from Mary D. Scott and her husband to Marion L. Scott — the mother-in-law of the former and the mother of the latter — was not one dollar simply; and they dispute the construction put upon this instrument, by which it is claimed on the part of plaintiff that she was a trustee; they say that she paid a full consideration for the premises, considering the estate that she allowed to be carved out' for the benefit of her son and daughter-in-law, and that she took this legal title fully subject that estate, which it is said was an estate for the joint lives of the husband and wife and of the survivor of them; that the remainder in fee was vested in Marion L. Scott by the conveyance from Albert E. Scott and his wife to her and that she was never divested of it, and that, therefore, those claiming from her are entitled to this property. Without entering into a lengthy discussion of the evidence, I will say that we conclude that the evidence supports the claim and contention that Marion L. Scott paid a valuable consideration for this property.

We find from the evidence that on the 9th day of February, 1872, Mary D. Scott and Albert E. Scott, her husband, and James L. Dickenson, executor of a certain estate which seems to have had some claim upon this property, executed a mortgage to The Northwestern Savings Bank and Depository of this city, to secure a loan of $2,500; that this mortgage indebtedness amounting when paid to $2,718.50, was paid by Marion L. Scott to the bank; and we find that it had not been repaid to her or to her estate. The instruments conveying this title, referred to in the pleading that I have read, were executed on January 29, 1883, and recorded on January 31, 1883, some eleven years after the bank had received its money upon this loan, and upon the same day the entry of satisfaction was indorsed upon the mortgage and was filed for record, and we find that Marion L. Scott had held it until that time. We have not made a computation of the amount, or what would then be due of principle and interest, but it is clear to us that, considering the estate which we find she had carved out of the property through these instruments, for her son and daughter-in-law, she paid full value for all that she received and retained.

Now, on the 29th day of January, 1883, Mary D. Scott and Albert E. Scott executed and delivered to Marion L. Scott a quit-claim deed to this property, .conveying to her — having regard to the terms of the deed alone — a fee simple estate therein, and upon the same day an instrument in writing was executed by Marion L. Scott to Mary D. Scott and Albert E. Scott, which is denominated upon its face a “lease,” which appears to have been executed as a part of the transaction in which the deed was given. The deed recites a consideration of one dollar. This other instrument was executed with the formalities required in the execution of a deed. It is this paper which gives rise to the dispute and all the difficulties of the case. It is somewhat uncertain what it was intended by the parties to be. In some of its phases and features it appears to be a lease; in some respects it resembles a deed, and in other respects it resembles a testamentary disposition of property, and in others still a contract between the parties respecting property in which they are all interested and not answering to the description of either a deed, lease or will. I shall read this paper: It starts out with the word “Lease.”-

“This Indenture, made this 29th day of January, A. D. 1883, between Marion L. Scott, of the city of Toledo, county of Lucas, and state of Ohio, party of the first part, and Mary D. and Albert E. Scott, of the same place, parties of the second part,

“Witnesseih, that the said party of the first part, in consideration of the rent, covenants and conditions hereinafter mentioned to be performed and kept, and the fulfillment of each and every one of them by the said parties of the second part, at the time and in the manner herein specified, do let and lease unto the said parties of the second part jointly during the life of said parties of the second part, or either survivor of the said second parties: '
“Town lot No. (868) eight hundred and sixty-eight Vistula division of said city of Toledo, with all rights and privileges thereto belonging, from the day and date of this indenture above written.
“The said parties of the second part in consideration thereof do hereby covenant and agree to pay the said party of the first part as rent for said premises the nominal sum of one dollar per year, all taxes and assessments that may be levied upon said premises, and to insure the building thereon sufficient to cover loss of same, and make all necessary repairs and alterations.
“It is fiirther understood and agreed, that in the event of the death of the lessor, party of the first part, the property herein mentioned shall revert in fee simple to Mary D. Scott, a party of the second part, and that said Albert E. Scott, also a party of the second part, shall have during his lifetime a joint interest in benefits arising from rents or sale of said premises or other property bought with the purchase money received from such sale, and in case he shall survive his said wife, the said Mary D. Scott, then he shall have full and entire use of the said premises or of other property derived therefrom, and of the rents and income thereof.
“And be it further understood, that in the event of the death of the last surviving party of the second part, the premises herein mentioned or other premises purchased with the money received from the sale of said premises, or the money received from the sale thereof, shall be divided by the survivor of the parties hereto, to such charitable or religious institutions of the city of Toledo, as said survivor shall deem best.
“In witness luhereof, the said Marion L. Scott, Mary D. Scott and Albert E. Scott, have hereunto set their hands and seals the day and year above written. ’ ’

They all signed and sealed it and it is duly witnessed, and acknowledged with the formality required of a deed. The claim of the plaintiff upon this instrument, taken in connection with the quit-claim deed, has been sufficiently stated by the. reading of the amended petition. Others claiming this property or an interest in it are the devisees of Marion L. Scott, who • died April 30, 1887, and by her last will and testiment, executed January 31, 1879, and certain codicils subsequently executed, devised her estate, and it is claimed by her devisees represented here that she devised this as well as other parts of her estate. The heirs of Albert E. Scott, of the blood of his mother, claim that this property was inherited by him from his mother; that it did not pass by her devise and, therefore, they claim it by inheritance from him as property coming from his maternal ancestor. The heirs of Albert E. Scott of another branch, and perhaps all of his heirs, claim shares because of his having taken this property, as they aver, by devise from his wife; and the executors of Mary D. Scott claim some interest in the premises, it appearing that there may be some debts of hers to be discharged.

I do not know that I have stated all the claims of all the various parties here, but I have stated as many of them as it will be necessary to consider in the disposition of the ease, considering the conclusions at which we have arrived. Now, as I have intimated, we regard this so-called “lease” as a very curious and perplexing instruments. "We think there is no very great deal of difficulty in arriving at substantially what the parties intended or purposed to do, but in certain contingencies there might have been very serious difficulty in giving effect to their purposes and intentions. It seems to us that the purpose was to allow Albert and- his wife, Mary, to occupy these premises and have the full use and enjoyment of them during their joint lives, and that the same privileges should follow to the survivor of them, and that (at least during the lifetime of the mother, Marion L. Scott), they were to pay the nominal sum of one dollar per year, and that they were also to pay the taxes and assessments and insure the building sufficiently to cover the loss of the same, and that they should make the necessary repairs and alterations. It may be doubted if there was any obligation resting upon them to do any of these things if they survived the mother, she being recognized as the lessor and the owner by those provisions. Then if they should survive the mother, they were each to have substantially the same interests in the property and the same rights in the property during their joint lives and for the life of the survivor of them, excepting, as I say, their interests may have been disencumbered or relieved of this obligation to pay rent, or to insure or to make repairs or alterations, and perhaps the instrument contemplated a power of sale that might be exercised by Mary D. Scott if she survived her mother, a power to sell and convey that would carry the whole estate, that is to say, the fee simple, and if that is so, we think the same sort of power and authority are conferred upon Albert E. Scott, notwithstanding the fact that with respect to Mary D. the term “fee simple” is used to describe the estate that she should take; the same dominion and the same right or jus dis ponendi seems to have been conferred upon the one as upon the other.

Now this last clause in the instrument has received different interpretations at the hands of different interests here, but our conclusion is that it means this: that the survivor named — not necessarily the survivors of the parties of the second part, that is, Albert and Mary — nor on the other hand, Marion L., the lessor, but the one of the three who should survive the other two shall devote the property to charitable and religious uses; and it amounts to a sort of a compact between the three, that the estate is not to go to the heirs of any of them, but that the survivor of the three shall dispose of it to charitable or religious uses. “And be it further undierstood” — there are no words of grant there — “that in the event of the death of the last surviving party of the second part, the premises herein mentioned, or other premises, or the money received from the sale of said premises, or the money received from the sale thereof” (that is, from the sale of the premises bought from the proceeds of the sale of the first) “shall be divided by the survivor of the parties hereto to such charitable or religious institutions of the city of Toledo, as said survivor shall deem best.” And that was not to occur until after the expiration of these estates given to Albert and Mary Scott. There are no words in this instrument defining an estate' in fee simple; there are no words of inheritance limiting an estate in fee simple either to Albert or Mary, his wife; there ■are no apt or operative words of conveyance to effect their transfer of an estate in fee simple; there are no words of grant. The instrument standing alone, we think it must be conceded, could not have carried any estate beyond the life estates defined; the only instrument here that conveys an estate in fee simple is the quit-claim deed, 'and in giving effect to these instruments we are not to lose sight of the fact that one is a deed and the other is denominated a lease, and that the serivner or person who prepared them was a lawyer, namely, Albert E. Scott, one of the parties, who' seems to have had some notion of the kind of instrument which should be drafted and executed to convey certain estate, or interest, though in the use of the terras he seems to have been in some confusion of mind.

It may be doubted if he hasi accomplished the general purpose which, seems to have been in the minds of the three parties concerned in respect to the remainder after the decease of the survivor, first, because the instrument lacks proper operative words of conveyance to convey the title to anybody after it had been vested in Marion L. by deed; and, secondly, because the arrangement is so- indefinite in not pointing out any of the institutions, religious or charitable, that were to be the beneficiaries, that it could not be enforced. Had the survivor— who was Albert — undertaken to carry this purpose out by making a disposition of the property for charitable and religious purposes1 according to the intention manifested here, it might have presented a very different question; it would have raised a question then as to whether there was such a power conferred upon him by the instrument. But he did not attempt to do that. And what we must determine, if we can, is where the fee simple title’ was left by this instrument, in the absence of an attempt on the part of anybody to execute any power of disposition that may be conferred by the instrument.

It is contended by the plaintiff that this instrument should be read in connection with the deed, and regarded as defining the trust to be executed by Marion L., or, at all events, as defining the trust pending the execution of which Marion L. was to hold the legal title to this property; but, as I have said, treating of this last provision (and that is all we have to deal with since the life estates have been enjoyed and have expired and have no further interest for us), if it was designed to raise or impress a trust, the trust is so indefinite that a court of equity could not seize upon it and appoint a trustee to execute it. The same difficulty would meet us should we regard it as counsel for the plaintiff contend we should — as a covenant on the part of Marion L. to stand seized to certain uses. I shall not try to follow counsel in all their various claims with reference to this property and what was possibly intended or possibly accomplished, hut, with respect to this claim, it seems to me that it is hardly tenable, owing to the fact that there is no covenant whatever upon the part of Marion L. Scott — not a word of covenant from the beginning to the end of either of these papers. If we should undertake to treat this instrument as a part of the deed, and as limiting or qualifying the fee simple estate conveyed by the deed by providing for a reversion in fee to Marion L., if she should be the survivor, or a conveyance to Albert of the remainder if he should be the survivor, then we are again met with the difficulties I have mentioned, to-wit, there are no operative words of conveyance; and we understand that operative words of conveyance are required either to engraft a reservation of a fee in reversion upon a grant of a fee simple, or to convey a remainder in fee, in such wise as to reduce the fee simple granted to an estate for life, or anything less than a fee simple. Now, with respect to the necessity of operative words, there is something said in the 9th Volume of The American and English Encyclopaedia of Law; at page 137, I read:

“The granting clause, which is a part of the premises, manifests the grant or transfer, and this is best accomplished by certain operative words peculiarly adapted to that purpose, with reference to the nature of the deed.”

And then are given, in a note, the proper and necessary operative words, i. e.:

“Operative words Of the various forms of conveyance.
Feoffment — “Give, grant and enfeoff.”
Gift — “Give and grant.”
Grant — “Give and grant.”
Lease — “Demise, grant, and to farm let.”
Exchange — 1 ‘ Exchange. ’ ’
Release — “Remise, release and forever quit-claim.”
Confirmation — “Give, grant, ratify, approve and confirm.”
Surrender — ‘£ Surrender, grant and yield up. ’ ’
Release — quit-claim—“ Remise, release and forever quit•claim. ’ ’
Bargañn and sale — “Bargain and sell.”
Covenant to- stand seized — “Covenant to stand seized to -the use of.”

That some appropriate form of expression is necessary, is therein set forth, and the authorities are there cited. Now, after -the part of this instrument which, as I 'have stated, is clearly and distinctly a lease, we find that it starts off with not “I grant, ’ ’ or like words, which would imply a purpose of conveying an estate from one to another, but “It is understood and agreed” —words of compact; and then the next clause: “And be it further understood” — evincing an amicable arrangement and understanding between the parties, and a purpose to do something which it seems to us can not be given effect. Neither are words of inheritance used; and it is the law of Ohio, as we understand it, that to convey a fee simple estate — except in some special cases — it is necessary to use the word “heirs.” There are some qualifications to this, as where the instrument is a mortgage or a will instead of a deed; but, so far as we have discovered, there is no other or further qualification of the common law rule upon the subject; and this instrument does not contain such word or any equivalent thereof, and) therefore it did not convey a fee simple estate to either Mary D. or Albert E. Scott.

Our conclusion is, therefore, that the legal estate rests where the quit-claim deed carried it — in Marion L. Scott. While this will not accomplish exactly what the parties desired with respect to the remainder, it does not defeat any purpose of the parties to the instrument that can affect the interests of any of the heirs claiming here, for there is no intent manifest therein to convey this remainder either to the heirs of Mary D. Scott or to the heirs of Albert E. Scott.

The remaining question is, whether this estate was carried to the devisees of Marion L. Scott, by her will, or whether she died intestate with respect to this piece of property so that it devolves upon her heirs?

It will be noticed from the transactions and dates that I have given, that this property was acquired by Marion L. Scott through this quit-claim deed, some time after she executed her will. It is therefore claimed by the maternal heirs of Albert E. Scott that her devise did not cover it so that it has descended from her to Albert and has descended from Albert to them. They call attention to the statute of the state upon the subject, Section 5969, Revised Statutes, which reads:

“Any estate, right, or interest, in lands or personal estate or other property acquired by the testator after the making of his will, shall pass thereby in like manner as if held or possessed at the time of making the will, if such shall clearly and manifestly appear by the will to have been the intention of the testator.”

And they cite Page on Wills and Jarmen on Wills, to the effect that in a devise of realty it was settled at common law that the will could operate only upon property owned by the decedent at the time of the execution of thewill and that after-acquiredproperty could not pass, and that under such statutes as we have here quoted it has been held by various courts of other states that the residuary clause does not pass after-acquired real estate when it is not manifestly and clearly the intention to devise the after-acquired real estate. Counsel representing this interest also cite upon that subject the case of Lepley and others v. Smith, decided by the circuit court in and for Holmes county in 1896, found in Vol. 13 of the Ohio Circuit Court Reports, at page 189. In that case the will under consideration, being made by a husband, contained a clause devising all of his property, both real and personal, to his' wife to have and to hold during her natural life and dispose of as she saw fit, etc., and one of the questions in the ease was as to the character of the estate she took and also as to whether she took any of the property which he afterwards acquired. This will devising all the property to the wife was made five years before the death of the husband. It gave to her the power of disposition of the fee of the praperty. The question in the ease was, whether by the execution of her will she had exercised this power of disposition; and it was held, upon the peculiar facts of that case, that she had not, and that this after-acquired property was not carried to her by the will. But it seems to us that the case of Pruden v. Pruden, decided by our Supreme Court, found in 14 O. S., page 251, is so nearly like the case at bar upon all material points involved, and that the general rules laid down upon the subject so completely cover the ease at bar, that it should control. The syllabus in the ease is as follows:

I. N. Euntsberger, for the plaintiff.

W. E. A. Bead, Marshall & Fraser, Clayton W. Everett, F. W. Sturdivant, F. J. Flagg, Samuel Foster and Clarence Tinker, for defendant.

“Lands acquired after the making of a will disposing of all the testator’s property, owned at his death, for specified purposes, will pass under its provisions.”

Something has been claimed for the phrase “specified purposes;” but that does not appear to have been used to qualify the rule. Some effect was given to the fact in that case, that the property which was devised was already owned by the testator at the time he made the-will — that is to say, not the precise property, but property which afterward by a change of form, became the property in dispute. It was in the form at the time he executed his will of a claim secured by mortgage, and that was afterwards foreclosed and he acquired the mortgage estate, and reference is made to that in the course of the decision as a circumstance of some influence in the case. And the same is true here: it appears that the interest which Marion L. Scott had at the time she executed her will was the interest of an assignee of a mortgage (substantially the same ias the mortgagee’s interest in the Pruden case), and afterward, in consideration of that, without going through the trouble and formality of a foreclosure, the mortgagors conveyed the legal title to her; and we think that under such circumstances such general provisions as are contained in her will devising all the rest and residue of her estate, covered and operated upon this property as well as her other property; and so we hold that the devisees acquired this property under her will.


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    TERMINATING CONTRACT OF EMPLOYMENT.
    [Circuit Court of Hamilton County.]
    The Highland Buggy Company v. Abijah S. Parker.
    Decided, January 7, 1905.

      Employer and Employe — Contract of Employment for a Specified Period — Termination of — Implied Agreement of Employe — Acceptance of Undesirable Orders by Employer.

    1. In a contract of employment for a specified time wherein there is incorporated an agreement on the part of the employe to promote the interests of the employer, there is an implied representation on the part of the employe that he has the experience and ability to promote the interests of the employer.
    2. Orders sent in by a traveling salesman at prices below those he is authorized to quote, can not he regarded as sent subject to the approval and acceptance of the company, where the provision of the contract giving the company the right to disregard orders in settling with the salesman relates only to orders from persons of doubtful financial responsibility and ito other elements which could not be anticipated or provided for in the contract.
    Gieeen, J.; Jelke, J., and Swing, J., concur.
    The defendant in error, as plaintiff in the court of common pleas, brought an action against the plaintiff in error as defendant, tó recover damages for breach of the following contract, to-wit:
    “Elmwood Place, Ohio, Dee. 6, 1899.
    “The Highland Buggy Company, Elmwood Place, Hamilton county, Ohio, hereby employs A. S. Parker, of Aurora, Mo., to act as salesman in selling its vehicles in Kansas, Missouri, south of Missouri river, and Oklahoma Territory, for one year from December 1st, 1899, at a salary of one thousand ($1,000) dollars per annum, payable in equal monthly installments.
    ‘ ‘ Said company will also pay the proper and necessary traveling expenses of said A. S. Parker, in canvassing said territory, and will pay him at the end of the year five (5) per cent, upon all sales made by him in excess of twenty-five thousand ($25,000) . dollars.
    “This five (5) per cent, on sales in excess of twenty-five thousand ($25,000) dollars is to be paid on all mail orders following the initial order taken by the said A. S. Parker, said sales being subject to the approval and acceptance of the said The Highland Buggy Company.
    In consideration of the foregoing, A. S. Parker will give his entire time and attention to selling the vehicles of said company in the territory named, at prices furnished him from time to time, and will promote the interest of The Highland Buggy Company all to its satisfaction.
    “Should said company not be able to collect any account made by said A. S. Parker, owing to the insolvency or failure of the purchaser, then said account shall not be taken into consideration in fixing the basis of the five (5) per cent, above specified.
    “The Highland Buggy Company,
    “H. J. McCullough, Sec. & Treas.

    “Accepted, A. S. Parker.”
   Plaintiff entered upon the performance of the contract and rendered services as salesman for the defendant for a period of about fpur months, when the defendant discharged him for the alleged reason that he had sold buggies at prices below those furnished him, made terms with parties contrary to the orders sent in by him, and in other ways violated his contract.

The chief controversy arises upon the construction of that part of the contract which provides the things to be performed by the salesman, it being contended by the plaintiff in error that it was justified in discharging the defendant in error whenever it became dissatisfied with the manner in which he performed his services. And on the other hand, the defendant in error claims that the meaning of this clause is, Parker agreed to promote the interests of the buggy company by taking orders for their vehicles at prices furnished to him from time to time all to its satisfaction.

It is manifest that the company could not be heard to complain of the use of his time, if he gave his entire time and attention to selling the vehicles of said company in the territory named, and it should and must be satisfied therewith, for the reason that it is a compliance with the very terms by it prescribed. So, likewise, if he made the sales at the prices furnished him from time to time by the company. That which is uncertain in the contract, arid which in the nature of the case could not be stated with exactness in the contract, relates to bis promise to promote the interest of the company. This is substantially a representation to the company that he had the experience and ability to promote and would promote the interests of the company in such a manner as would satisfy it -

The general charge of the court upon this provision of the contract was most favorable to the plaintiff in error, and the first special instruction requested by it was properly refused; The dissatisfaction which would warrant the company in terminating the contract could not depend upon mere whim or cap'ricej but upon such facts as would warrant a reasonable person-iñ the conclusion that the services of the salesman were not-1 promoting, either directly or indirectly, the interests of his-dm* ployer, provided always that the latter acted in'good-faitRánd performed his part of the contract. . . • ■ ' " til

The evidence shows that the employment was not--profitable to the company, and the jury might well haye.'f.ound that it-was justified in terminating the contract under'this clauáe, "btit having found for the plaintiff upon this issue,'we'will-ñot how disturb that finding. ' ' .v ’. (d

Testimony was offered tending to prove that • the -plaintiff before executing the contract, represented to the defendant that he could sell at least a thousand (1,000) jobs, and if he did not sell eight hundred (800) he would not ask any compensation, and the court excluded it. While this testimony was incompetent to prove a promise to that effect not embodied in the contract, yet we think it was competent to give a proper application of the words we have been considering and the object sought to be attained by the contract, especially if the clause is indefinite and uncertain as claimed by the counsel for defendant in error. Hildebrand v. Fogle, 20 Ohio, 147.

Testimony shows that the plaintiff sold vehicles at prices less than those fixed by the defendant company, not only in violation of the contract but against its protest. The contract expressly provides that the sales should be made at prices furnished him from'time to time, and if the company in good faith fixed reasonable prices, the salesman- was bound to conform thereto, and if he sold below such prices, it was a direct breach of the contract and warranted his discharge.

Harper & Allen and Philip Boettinger, for plaintiff in error.

Joseph B. Kelley, contra.

It is claimed, however, by counsel for plaintiff, that all sales were subject tó the approval and acceptance of the company, and that the orders were so taken and transmitted. But reference to the contract shows that “said sales” referred only to those in excess of $25,000; and there is no pretense that the plaintiff sold that amount, besides, even granting that all sales were taken subject to approval and acceptance, such approval did not relate to the price, because that was specially provided for in the contract, but it related to the financial responsibility of the purchaser and such other elements of the sale, which could not be anticipated or provided for in the contract.

The court correctly charged the jury upon this issue, and its. finding in favor of the plaintiff is manifestly against the weight, of the evidence.

The court properly refused to give any of the special charges requested by the defendant.

We find no other error in the record and the judgment will be reversed, and cause remanded for a new trial.


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    MUNICIPAL IMPROVEMENTS AND THE BURNS LAW.
    [Circuit Court of Lorain County.]
    William A. Braman et al v. The City of Elyria et al.
    Decided, October 8, 1904.

      Municipal Corporations — Contracts hy, for Municipal Improvements— Wfien Cleric’s Certificate is Required under the Burns Law.

    In the case of municipal improvements to be let by contract, the clerk’s certificate that the money required for the contract is in the treasury to the credit of the proper fund, and not appropriated for any other purpose, as provided in Section 1536-205 of the Municipal Code, which is a re-enactment with slight modifications, of what was formerly known as the “Burns Law,” is not required until just before the contract is signed.
    Winch, J.; Hale, J., and Marvin, J., concur.
    June 17, 1903, the council of the city of Elyria passed a resolution declaring the necessity of paving and otherwise improving East avenue in said city, and on July 15, 1903, it adopted an ordinance for the improvement of said avenue in accordance with plans, profiles and specifications on file in the office of the city engineer, and provided that one-third of the cost and expense of said improvement, except the curbing, and the entire cost of alley and street intersections should be assessed as a special street assessment upon all the taxable property of the city, and that the remainder should be assessed as a special as-' sessment upon the abutting property by the foot front, the assessment to be paid in ten annual installments. Thereafter it advertised for bids and received them, and on September 5, 1903, awarded the contract for the work to the Ayers Asphalt Paving Company. On September 27, 1903, the city issued its certificate of indebtedness in the amount of the contract price to a local bank and borrowed that amount of money, which was placed in the city treasury to the credit of the proper fund, and the city clerk properly certified the fact and filed his certificate in his office. Thereupon the duly authorized officers of the city signed a contract with the Ayers Company for the completion of the improvement, and the clerk of the city certified on the contract that the money to pay the amounts coming due thereunder was in the treasury of the city to the credit of the proper fund.
   Upon October 11, 1903, plaintiffs in proper form brought their action in the common pleas court to restrain the defendants from proceeding with said improvement, the payment of any money on the contract and the issuing of bonds, and asking that said resolution, ordinance and contract be set aside.

The case was heard by the common pleas court and determined adverely to the plaintiffs, the court making a separate finding of facts and law, on which findings the case is now presented on error for review by this court.

The only question thus raised for the determination of this court is whether the city complied with the Burns Law, so-called, which now appears as Section 1536-205, Revised Statutes of Ohio, the part pertinent to this case reading as follows:

“No contract, agreement or other obligation involving the expenditure of money shall be entered into, nor shall any ordinance, resolution or order for the expenditure of money be passed by the council or by any board or officer of any municipal corporation unless the auditor of the corporation, and if there is no auditor, the clerk thereof, shall first certify to council that the money required for the contract, agreement, or other obligation, or to pay the appropriation or expenditure, is in the' treasury to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose.”

It is conceded that no such certificate was made before the resolution of necessity was passed, the ordinance for the improvement and assessing its cost was adopted, bids advertised and received, or the contract awarded. The certificate was made, however, before the contract was signed.

Was it made in time?

There has been no case decided by the Supreme Court of this state specially deciding the question here raised. There are two cases cited to us which contain language indicating that perhaps this certificate should have been made at least before the ordinance for improvement and assessment was adopted.

The ease of Ryan v. Hoppman, 26 O. S., 109, involved the payment' of money for land taken by the city of Cincinnati for the extension of a street, and the effect of the third section of the act of April 16th, 1874 (71 Ohio Laws, 80), which provided that “no ordinance or other order for the expenditure of money which shall be passed by the city council shall take effect until •the auditor of said city shall certify to the city council there is money in the treasury especially set apart to meet such expenditure,” etc. Judge Gilmore, on page 123 of the opinion in said case, said: “The ordinance condemning the land in question, is an ordinance for the expenditure of money,” but the statute was held not to apply because the ordinance was passed1, before the law took effect.

In the case of City of Cincinnati v. Holmes, 56 O. S., 104, the validity of the contract for the improvement of a street in the village of.Avondale was in question. Judge Minshall starts his opinion on page 110 with the statement:

“The principal and only question in the ease is, whether what is known as the Burns Law, Section 2702, Revised Statutes, is applicable to the improvements authorized by the acts of the Legislature under which the village of Avondale proceeded in this case.”

The court held that the special legislation under which the village proceeded provided an exception to the Burns Law and that the latter law did not apply. But on pages 112 and 113 of the opinion we find the following statements:

“These acts, particularly the order of the council, that the improvement be made, fixes an indebtedness 'for the entire cost of the improvement, one-half as an assessment on the property benefited and the other half on the general tax-payers of the village. It is against the fixing of an indebtedness on the corporation without the money being in the treasury to meet it, that the Burns Law is designed as a protection. It may be said that the indebtedness is not created until a contract for the improvement is made. It is true that it does not exist in favor of any particular creditor, nevertheless, on making the order the successive steps — the advertisement for bids, action on them, the letting of the work and making of the required contract — all follow as a necessary sequence under the statute. If the council should refuse to take any of these steps without cause, it could be compelled by mandamus to do so. Hence, if the Burns Law can have any application to this statute, according to its spirit, it must apply to the order of the council that the improvement be made. It is this order that fixes and entails the indebtedness upon the corporation. It is in fact an order for the expenditure of money.”

Such is also the argument' of counsel for plaintiffs in this case, but in the absence of any binding statement of the law of the case by the Supreme Court, we have come to a contrary conclusion, which, to a slight extent, is sustained by a careful reading of the case of Elster v. Springfield, 49 O. S., 82, and Comestock v. Nelsonville, 61 O. S., 288.

It therefore becomes necessary to construe Section 2702 and determine at just what stage in the proceedings culminating in a contract for a municipal improvement, the clerk’s certificate becomes necessary, and all subsequent proceedings without it void.

Certainly no “contract, agreement or other obligation involving the expenditure of money” was “entered into” by the passage of the resolution of necessity, the ordinance to improve and assess, the advertising or receiving bids.

Nor was such contract, etc., “entered into” when the contract was awarded. The statute elsewhere provides how municipal authorities shall enter into contracts, and the formalities with reference thereto, without which the contract is void.

The certificate was therefore in time so far as the entering into a contract, agreement or other obligation is concerned.

But the Burns Law further provides that no “ordinance, resolution or order for the expenditure of money” shall be passed, until the certificate is made.

We have in this ease to consider a resolution — the resolution of necessity; an ordinance — the improvement and assessment ordinance; and an order — the order awarding the contract.

All of these in one sense concern both the appropriation and expenditure of money, but certainly the resolution is not for them, because the whole proceeding may stop upon the hearing of objections to the improvement, and the expenditure of money will not necessarily be made because of the adoption of the resolution.

The same may be said of the ordinance — bids may be advertised for, but none received; or all bids received may be rejected; the ordinance may be repealed before any step is taken under it actually necessitating the expenditure of money. The passage of the ordinance in no wise binds the city to make the improvement, and after its passage, who is to see that the improvement is made ? What interested party is there, who can compel the city to go ahead, advertise for bids and accept them ? Sometimes when bids for such improvements come in they are so high and the city’s financial condition so poor or the times so bad generally that the whole matter is then dropped. Who can interfere with the judgment of the city authorities thus exercised? The mere passage of the ordinance creates no liability against the city, and therefore the ordinance nan not be said to be one for the expenditure of money. Without further steps being taken, ho city official would, upon the passage of the act, be authorized to expend money.

The same may be said of the order awarding the contract. That order is simply an expression of opinion on the part of the council that a certain bid is the best and should be accepted; that a contract should thereafter be made with such bidder. It authorizes the making of a contract, but it is not a contract, agreement or obligation binding upon the city, until the contract authorized is executed, in behalf of the city, by the proper authorities. Suppose there were no 'Burns Law, would the contractor claim that he could go ahead with the work immediately, without any further contract with the city, upon the mere awarding of the contract to him? We think not. Such action on the part of the council might be reconsidered and its award revoked before any contract was signed. Municipal corporations can not enter into agreements with the same lack of formalities that characterizes the acceptance of propositions by individuals,' and we are inclined to think that the right of all legislative bodies to reconsider their action before persons dealing with them have acted upon their action should be recognized.

Metcalf & Cinniger, for plaintiff in error.

W. B. Johnson, Q. A. Gülmore and E. G. & E. G. Johnson, for- defendants.

If we are right in our construction of the Burns Law, in the-case of municipal improvements to be let by contract the clerk’s certificate of money in the treasury to the benefit of the proper fund, unappropriated for any other purpose, is not required until just before the contract is signed. While we reach this conclusion with doubt, from a mere interpretation of the words of the law, such doubt is removed when we consider the necessities of the case and the impracticability of making such improvements should any other interpretation be given to the law.

The intention of the law is to prevent the entering into of improvident contracts — improvident, because the payment of obligations is not foreseen when the obligations are incurred. Such .intention is strictly complied with if the certificate is made before the final step is taken which makes a contract absolutely binding upon the municipality and absolutely requiring the expenditure of money. Such intention does not contemplate that all preliminary steps leading up to the making of such binding contract shall be void, unless the certificate is made before all such preliminary steps are taken; and at what stage in the proceedings are we to draw the line, except at the entering into the contract?

To take any other view of the case would fill our municipal treasuries with idle, money for improvements finally abandoned and never made, would prevent obtaining bids upon which to determine how much money must be so certified; would delay municipal improvements, contrary 'to the spirit of the law; would involve loss of interest in' the case of delayed improvements; would, in fact, as before stated, extend the scope of the law far beyond its plain and reasonable intent.

The judgment of the court of common pleas is affirmed.