author: NIMAN, J.

text:
    CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    October 21, 1912.]
    Marvin, Winch and Niman, JJ.

      State ex rel Harry S. French v. J. B. Clough.
    1. Authority of Holdover Board to Elect Officers on Failure of Stockholders’ Annual Meeting to Elect Directors.
    In the event oí failure at the annual stockholders’ meeting to elect a new board of directors, the hold-over board has authority to proceed with the election of officers of the corporation, when the code of regulations of the company provides that officers and directors shall be elected for one year.
    2. Notice of Directors’ Meeting to Elect Officers when Time is Fixed for Annual Meeting.
    When there is a fixed time for the holding of the annual meeting of the board of directors of a corporation, each director will be assumed to have notice thereof, and failure to notify all the directors that a meeting is to be held does not invalidate action taken at such meeting.

      Wing, Myler <& Turney, for plaintiff.

      Smith, Taft & Arter, for defendant.

      Affirmed no opinion, State, ex rel French, v. Clough, 88 Ohio St. 590.

   NIMAN, J.

This is an action in quo warranto, begun in this court, for the purposes of ousting the defendant, J. B. Clough, from the office of president and treasurer of the Machinery Forging Co., and having the relator, Harry S. French, adjudged entitled to said office.

The Machinery Forging Co. is an Ohio corporation. By its code of regulations the annual meeting of the stockholders is held on the second Monday of .August of each year. The number of directors is fixed at five.

At the annual meeting of stockholders held on the second Monday of August, 1912, there was a failure to elect a new board of directors by reason of an equal number of shares of stock having been voted in favor of six different persons. At the time of this meeting the board consisted of H. S. French, the relator, H. C. Kumraus, S. M. Sloan, J. B. Clough, the defendant, and B. L. Tappingden. At the time of the holding of the stockholders’ annual meeting of 1912, the relator was the duly elected and qualified president and treasurer of said company.

Immediately after the adjournment of the stockholders’ meeting, three of the old directors, Clough, Kumraus and Tappingden, constituting a quorum under the by-laws, having requested the relator to call a meeting of the board, and their request having been refused, met and proceeded to organize. They elected the defendant to the office of president and treasurer, and filled the other offices of the company. One director, S. M. Sloan, was given no notice of the meeting. The relator was aware of the fact that the three members of the board mentioned were holding a meeting. He was in the front of the office where the meeting was held part of the time, but refused to participate in the meeting, and denied the right of the three directors to hold such a meeting.

The defendant, after being elected president and treasurer of the company, and the other officers chosen took possession of the manufacturing plant and the other property of the corporation, and have since retained possession of the same.

The relator contends that the old board, having held over on account of the failure of the stockholders to elect a new board, was without legal authority to disturb him in his office of president and treasurer, and that the election or attempted election of the defendant to that office vested no right in him to exercise or enjoy the rights and privileges of such office. He contends, also, that if it should be held that the old board had power to elect new officers, the attempted exercise of that power was of no effect because no notice of the meeting was given to one of the directors, S. M. Sloan, who was not present at the meeting and had no actual knowledge of it.

In our opinion, if the members of the old board had power to elect new officers, the want of notice to a director of a meeting held at that time would not invalidate the action of the board. It is provided in the regulations of the company that the annual meeting of the stockholders shall be held on the second Monday in August, and in the by-laws of the board of directors it is provided that the regular annual meeting of directors shall be held at the office of the company on the second Monday of August. The time of the annual meeting of the board being thus fixed, and no actual notice thereof being required, each director must be assumed to have notice by reason of the time fixed in the by-law, itself. The rule on this subject is stated in Thompson Corporations (2nd Ed.), Sec. 1131, in this language:

“There has been some controversy and doubt,” says Mr. Cook, “as to the necessity of giving notice of directors’ meetings. Many cases apply to directors’ meetings the same rules that apply to stockholders’ meetings. Other cases hold that less formality and strictness are required in calling a directors’ meeting. The decisions are quite uniform, however, in holding that as to all special meetings of the board of directors notice must be given. The law is inclined to tolerate more freedom in the notice and the calling and holding of directors’ meetings, inasmuch as the meetings are more frequent, the absentees more common, the acts less fundamental, and ratification by acting on the contracts more certain and easy. The general rule may be said to be that where the meeting is a stated one, the time and place of which are fixed by some by-law, or regulation, no notice is necessary, unless required by statute.”

The question, therefore, which we must decide is whether the board of directors of this company holding over, after the failure to elect a new board at the .annual meeting, had power to elect new officers, and specifically, power to supplant the relator by electing the defendant to the office of president and treasurer.

Section 3 of the code of regulations of the company contains a provision as follows:

‘ ‘ Officers and directors shall be elected for one year, unless elected at a meeting succeeding the annual meeting, and in that event such officer shall serve out the unexpired term. All officers duly elected shall serve until their successors are duly elected and qualified.”

By this provision the regular term of office of the officers of the corporation is fixed at one year, and ends with the annual meeting of the board of directors. This is in harmony with Sec. 8664, G. C., which contemplates an annual election of officers.

By virtue of said Sec. 8664, and the provision of the regulations above quoted, if a new board had been elected at the annual stockholders’ meeting, it would have been the right and duty of its members, as soon after taking their oaths of office as convenient, to select a president and other officers. The stockholders having failed to elect a new board of directors, the old directors, by virtue of Sec. 8647, G. C., continued in office. They continued in office for all the purposes for which a new board might have been elected. Their power and duties were the same as the powers and duties of a new board would have been. The term of office of the president and treasurer being fixed at one year, and that year having expired, the board of directors, although composed of members holding over on account of the failure to elect new members, had power to select a new president and treasurer. If the board had not acted, the old officers would have continued to hold office at the pleasure of the board until the election of a new board, and action taken by it.

It is urged, however, that the language of said Section 8664, which directs the directors “chosen at any election” as soon after taking an oath of office as is convenient, to select one of their number to be president thereof, and unless the regulations otherwise provide, also to appoint a secretary and treasurer of the corporation, impliedly restricts the right to elect the officers mentioned, to a newly elected board.

We do not think that this is the effect of the section under consideration. It does not operate to deprive the board holding over of the right to elect new officers when their term of office expires, but in our opinion the officers so elected will hold their offices subject to the right of any new board that may at any time be legally chosen to act under said section in the election of new officers. The old board will be served by officers of its own choosing, and if a new board is elected, it will have the power to act under this section and elect officers of its own choice.

The conclusion we have reached, therefore, is that the election of the defendant was within the power of the hold-over board, and that this power was exercised in a regular and valid manner. This result arrived at from a consideration of the statutes and the code of regulations of the corporation, is supported by the only authority cited to us bearing directly on the main question' involved in this action, the ease of State v. Guertin, 106 Minn. 248 [119 N. W. 43; 130 Am. St. 610], the first and second paragraphs of the syllabus of which are as follows:

‘ ‘ The articles of a corporation provided that a board of directors should serve for one year, and until their successors were elected and qualified, and that the officers of the corporation should be chosen by the directors at their first meeting after their appointment or election, and hold office for one year, or until their successors are elected and qualified.
“Held: The stockholders having failed to elect a board of directors at the annual meeting, the hold-over directors were authorized, at a meeting called for that purpose, subsequent to the annual meeting, to elect new officers as the successors of those holding over.”

The petition will be dismissed.

Marvin and Winch, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    ASSESSMENTS
    [Cuyahoga (8th) Circuit Court,
    May 8, 1911.]
    Winch, Henry and Jones, JJ.
    Judge Jones of Fourth Circuit Sitting in Place of Judge Marvin.
    Frank F. Stranahan v. J. P. Madigan, as Treasurer.
    Assessing Cost of Water Pipes Upon Abutting Property Held Constitutional.
    Section 3812 G. C., which provides that municipal corporations may assess upon the abutting lots any part o£ the entire cost and expense connected with the improvement of any street by constructing water mains or laying water pipe, is constitutional.
    Appeal.

      A. B. Odell, for plaintiff.

      E. G. Guthrey, for defendant.
   WINCH, J.

The plaintiff seeks to enjoin the collection of certain assessments upon his property in the village of Lakewood levied to pay for the laying of water mains in the street upon which said property abuts.

The case was heard upon an agreed statement of facts, from which it appears that the water mains in question were of the usual and ordinary construction, and were laid for .the purpose of furnishing water to the abutting property owners and had the usual hydrants for municipal fire protection.

It was also admitted on the hearing that plaintiff’s lands were specially benefited by the improvement and no question was made that the assessment was excessive.

The sole question submitted to the court is whether the municipality has power to levy assessments upon abutting property to pay for water mains laid in the street for the purpose of supplying abutting property with water. Plaintiff claims that the cost of extending water mains should be borne by the municipality from the city’s general fund.

That plaintiff’s contention would have been sustained before the amendment of Sec. 50 of the Municipal Code, April 14, 1904 (97 O. L., 98), now found as See, 3812 G. C., may be conceded, for the general policy of the state theretofore was to require municipalities to pay for the extensions of their water works systems out of the revenues of the same, or by the issue of bonds.

But on the date and by the amendment mentioned the Legislature provided that the council of any municipal corporation may assess upon the abutting lots in the corporation any part of the entire cost and expense connected with the improvement of any street by constructing water mains or laying water pipe.

This, we think, was within the power of the Legislature to provide, though a decided change from the general policy with regard to the payment of the cost of laying water pipes theretofore prevailing.

The petition is dismissed.

Henry and Jones, JJ., concur.


text:
    COUNTERCLAIM AND SET-OFF — PLEADING
    [Cuyahoga (8th) Circuit Court,
    May 8, 1911.]
    Winch, Henry and Jones, JJ.
    Judge Jones of Fourth Circuit Sitting in Place of Judge Marvin.
    George A. Williams v. Leo Ederer.
    1. Counterclaim for Finding Letter Causing Discharge from Employment not Proper in Action on Account.
    In an action on an account for goods sold and delivered, the defendant can not set up as a counterclaim, a cause of action in tort, growing out of the sending of a letter by plaintiff’s attorney to defendant’s employer, whereby the defendant lost his job.
    2. Objection to Counterclaim Raised by Objection to Introduction of Evidence Notwithstanding no Demurrer Filed.
    Objection to such a counterclaim may be taken at the trial, by objection to the introduction of any evidence under the counterclaim, even though no' demurrer was filed to it and an answer was filed.

      Weed, Miller & Rothenberg, for plaintiff in error.

      Howland, Moffett & Niman, for defendant in error.
   WINCH, J.

Lederer sued Williams on an account for goods sold and delivered. Williams filed an answer and cross-petition, and Lederer then filed a reply. The ease was tried to a jury, with verdict and judgment for Lederer.

In this court the main contention of Williams is with regard to the charge and certain requests to charge, all as bearing upon the first cause of action set up in his cross-petition. That cause of action was for a tort growing out of the sending of a letter by Lederer’s duly authorized attorney to Williams’ employer, whereby he lost his job.

There was no prejudicial error in the charge if this counterclaim was not properly before the court.

It is not every cause of action which a defendant claims against the plaintiff that may be set up by him as a counterclaim. While See. 11315 G. C. says that the defendant may set forth in his answer as many grounds of counter-claim as he may have, Sec. 11317 G. C., defines a counterclaim as “a cause of action existing in favor of a defendant against a plaintiff or another defendant or both, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.”

Manifestly the sending of the letter to Williams’ employer a long time after he had purchased the goods, had nothing to do with the purchase of the goods, nor was it connected with the subject of the action, which was on an account due from Williams to Lederer.

Indeed, the learned counsel for plaintiff in error does not seriously contend that the cross-petition pleads a counterclaim proper to be set up in this action, but, he says, objection thereto should have been taken by demurrer and was waived by filing a reply containing an answer to said counterclaim.

That demurrer would lie to this counterclaim appears from Sec. 11323 and 11324, G. C. Among other grounds for demurrer to a counterclaim these sections mention: that on its face it is insufficient in law; that the facts stated do not constitute a counterclaim, and that the counterclaim does not state facts which entitle the defendant to the relief granted.

There is a provision of law (Sec. 11311 G. C.) to the effect that if a defendant does not raise an objection to a petition by demurrer, the ground of the objection appearing on the face of it, he shall be deemed to have waived it, except only that the court has no jurisdiction of the subject of the action and that the petition does not state facts which show a cause of action.

There is no such provision with regard to a plaintiff’s failure to demur to a counterclaim and we see no reason why any application of the rule governing failure to demur to a petition should be made to a failure to demur to a counterclaim. Other provisions of law take care of the latter case and the statutes are so specific on the subject of demurrers, that no effort should be made to extend them by implication to take in eases not thus specifically provided for.

There is no question that had no objection been raised by the plaintiff to the trial of the counterclaim in the same action with his claim on the account, though it would be an improper intermingling of two separate and independent suits in one action, still a reviewing court would not reverse a judgment thus obtained by the parties’ acquiescence.

But the plaintiff objected in time to the introduction of any evidence under the counterclaim. We think that he thereby saved his rights. The practice of answering over and objecting to the introduction of any evidence under a petition, on the ground that it does not state facts which show a cause of action, is common and approved, and we think the statutes regulating demurrer to a counterclaim authorize the same practice.

There are authorities strictly in point on this subject cited by counsel for defendant in error. McDougall v. McGuire, 35 Cal. 374, and Smith v. Hall, 67 N. Y. 48.

"We have examined the statutes of both of said states and find them almost identical with the statutes of this state on the same subject.

It is urged that by holding as indicated an injustice is done plaintiff in error in that the finding against him in this action on his counterclaim may be pleaded against him as res ad judicata should he hereafter desire to sue upon the cause of action stated in said counterclaim.

We express no opinion upon this subject, but call attention to the privilege accorded a party in such situation by Sec. 11337 G. C., which Williams might have taken advantage of.

The only other error complained of is a ruling on evidence.

We think it was perfectly proper for Williams to meet the point sought to be made by Lederer that the former had done nothing whatever to arrange for settlement of the latter’s claim. This he was permitted to do by showing that he turned the matter over to his attorney, and that his attorney wrote a letter to Lederer’s attorney. The letter itself, however, was inadmissible, being of a self-serving nature.

Judgment affirmed.

Henry and Jones, JJ., concur.


text:
    WILLS
    [Summit (8th) Circuit Court,
    April 12, 1911.]
    Marvin, Winch and Henry, JJ.

      Homer A. Hine v. Martha L. Cowles et al.
    Domicile of Testator' Determined by Judgment of Probate Court Conclusive.
    The judgment of a probate court of this state as to the domicile of a testator whose will is probated in said court is conclusive upon the courts of this state, though not binding upon the courts of other states.
    Appeal.

      Allen, Waters, Young <& Andress, for plaintiff.

      Carpenter, Young & Stocker, for defendant.

       Affirmed no opinion, Cowles v. Cowles, 86 Ohio St. 350.

   WINCH, J.

Welthia Daniels died in California on November 20, 1906, leaving a will which she had executed in Summit county, Ohio, where she formerly lived, appointing the plaintiff executor thereof. Said will was duly probated in this county in January, 1907, and thereafter an authenticated copy was admitted to record in Los Angeles county, California, and an ancillary administrator, with the will annexed, was there appointed to administer assets of the estate there found.

Thereafter a petition was filed in the superior court of Los Angeles county, California, to contest the validity of said will, and it was there set aside on account of the testator’s alleged incapacity to make it.

Later on, in 1910, a petition was filed in the common pleas court of Summit county, Ohio, by Hine, the executor here appointed, asking for the direction of the court as to his duties under the will. It is conceded that all necessary and proper parties were brought before the court in said action, which is the one now before us on appeal.

The question really raised by the pleadings is whether the record of the probate court of Summit county, admitting the said will to probate, is conclusive as to the fact that the testator was domiciled in this county at the time of her decease, or whether evidence should be received on that subject tending to show that she was a resident of California when she died.

In this connection, some of the defendants urge that under the federal constitution full faith and credit are to be given to the judgment of the superior court of Los Angeles county, California, setting aside the will, and that by said judgment the executor, Hine, is without authority to, act under the said will.

We have here a familiar and interesting example of the conflict of laws.

That this court is bound by the finding of the probate court of this county, that Welthia Daniels was a resident of Summit county when she died, there seems to be no doubt.

That court is a court of record and of ample jurisdiction to hear and determine all facts upon which its jurisdiction rests. It was necessary for that court to determine whether the testator was a resident of this county when she died. It heard and determined that fact, and found that she was such a resident. No effort has ever been made to review said finding, though ample provision has been made therefor by statute. See Secs. 10520, 10521, G. C. Woerner, Law of Administration, 328, says of probate courts:

“If it is found that the tribunal is one competent to decide whether the facts in any given matter confer jurisdiction, it follows with inexorable necessity that, if it decides that it has jurisdiction, then its judgments within the scope of the subject-matters over which its authority extends, in proceedings following the lawful allegation of circumstances requiring the exercise of its power, are conclusive against all the world, unless reviewed on appeal, or avoided for error or fraud in a direct proceeding. It matters not how erroneous the judgment; being a judgment, it is the law, of that case, pronounced by a tribunal created for that purpose.”

This statement of the law is perhaps too strong, if intended that the judgment has extraterritorial effect, but is correct as to the effect of the finding upon the courts of the state in which, and according to the laws of which, it was made.

On this subject, Wharton, Conflict of Laws, 3d Ed., Sec. 64-5, says:

“The law, as originally settled in Massachusetts, was that if an administrator or guardian was appointed by a judge of probate, who had no jurisdiction through the want of domicil on the part of the deceased, the whole proceedings were void, and all titles passing under the same null. To correct this, and to give stability to the law, statutes were passed in Massachusetts and Maine, and other states, limiting the time of appeal from probate decisions. Under these statutes, it was held by the superior court of Maine, in 1870, that when administration was commenced in Maine on the assumption that the deceased was domiciled in that state, and there was a final decree of the probate court on the settlement of the fourth account, after due proof, based on this assumption, then the question of domicil must be regarded as conclusively settled, and so far as concerns distribution of Maine assets, and that it was not competent to show that the last domicil was in another state. But such statutes can not operate extraterritorially so as to invest internationally with. domicil a person not domiciled in the enacting state.”

In the light of the law thus stated, we find nothing in the cases of Overby v. Gordon, 177 U. S. 214 [44 L. Ed. 741; 20 Sup. Ct. 603], and Tilt v. Kelsey, 207 U. S. 43, [52 L. Ed. 95; 28 Sup. Ct. 1], cited by counsel for defendants, requiring this court to give greater credit to the decisions of a court of another state than it does to the decisions of a competent court of this state. Furthermore, the judgment of this court, here sought, is to act upon the res, as expressed in the last mentioned case. It is to act upon funds in the hands of the executor and within the jurisdiction of the probate court of Summit county, and of this court. To that extent, the finding as to domicil made by the probate court of this county, is conclusive, though the authorities cited show that said finding would not be binding upon the courts of California.

It will be noticed that said cases, as others which have been examined, hold that the adjudication of domicil by the courts of one state have no binding force upon the courts of other states, and their effect must be so limited.

The case of Willett’s Appeal, 50 Conn. 330, is not reconcilable with the federal cases cited and, had it been followed in California, would have led to a contrary conclusion in the court there.

Objections to the introduction of evidence as to domicil are sustained.

Our conclusions are, that the executor proceed as directed by the will; for the reasons stated, however, because the finding of the probate court here will not be binding upon the courts of California, as to the domicil of Mrs. Daniels, we can not direct him to incur any expense in litigation there.

Decree, see journal.

Marvin and Henry, JJ., concur.


text:
    RAILROADS
    [Cuyahoga (8th) Circuit Court,
    May 15, 1911.]
    Marvin, Winch and Henry, JJ.
    New York, C. & St. L. Ry. v. Lakewood (Vil.)
    Discretion in Permitting Grade Crossing to be Constructed.
    A judgment of the common pleas permitting a village to construct a crossing at grade over a railroad, will not be set aside, unless it appears that the trial judge has clearly abused his discretion in so ordering.
    Error.

      John H. Clark, for plaintiff in error.

      Alfred Clwm, for defendant in error.
   WINCH, J.

This is a proceeding to review the judgment of the common pleas court, permitting the village to construct a crossing at grade over the railroad at Manor Park avenue in said village.

This court is committed to the general policy of refusing permission for crossings at grade, and had the matter been brought before this court for its original judgment in the matter, it is likely a crossing at grade would not have been permitted at the point mentioned.

The law, however, vests the trial judge with considerable discretion. The evidence before us does not show an abuse of such discretion.

The village made proof of such matters as the statute requires, and the fact that there are twenty-six existing crossings at grade over this railroad within the village may well have inclined the trial judge to conclude that the best way to have all of such crossings abolished, was to put the burden of another one upon the railroad. We do not know such would be the tendency; the whole subject is purely speculative; for that reason we are not disposed to say that the trial judge was clearly wrong in his conclusion.

Judgment affirmed.

Marvin and Henry, JJ., concur.


text:
    APPEAL
    [Cuyahoga (8th) Circuit Court,
    May 15, 1911.]
    Marvin, Winch and Henry, JJ.

      Strong, Cobb & Co. v. Maier Jaffa.
    Appeal Construed as Entering an Appearance.
    A partnership being sued in its firm name before a justice of the peace and judgment there being rendered against it, appealed the case to the common pleas court, where the case was properly-docketed as against the partnership, but the plaintiff filed a petition therein entitling the case as one against certain individuals doing business under said firm name, but no service was had thereon. Afterwards default judgment was rendered against the partnership in its firm name. Upon motion to set aside said judgment for want of service on the individuals and because they did not compose the firm, Held: The appeal by the firm entered its appearance in the common pleas court and the judgment against it is valid.

      T. H. Bmfmell, for plaintiff in error.

      W. T. Clark, for defendant in error.

      Affirmed no opinion, Strong, Cobb & Co. v. Jaffa, 87 Ohio St. 504.

   WINCH, J.

Maier Jaffa sued Strong, Cobb & Co., by its firm name, in a justice court, and recovered judgment. The firm appealed tbe case to the common pleas court, and in due time Jaffa filed a petition therein, entitling it: “Maier Jaffa, plaintiff v. S. M. Strong, L. A. Cobb, R. L. Cobb and E. L. Strong, partners doing business under the firm name and style of Strong, Cobb & Co., defendants.” The case, however, was properly docketed in said court, as it had been entitled in the justice court.

No effort was ever made to procure service upon the individuals named as partners, nor did they or the firm file any answer to said petition. In due course of time, default judgment was rendered against the firm, and the firm has filed petition in error in this court to reverse said judgment, assigning as error that the individuals named in the petition as members of the firm were never served, nor did they compose the firm of Strong, Cobb & Co.

We do not see what difference this makes to the validity of the judgment against the firm. It had been sued by its firm name before the justice of the peace, and in that name appealed its case to tbe common, pleas court. By tbe appeal, it duly entered its appearance in said court, and of tbe petition filed therein it was bound to take notice without further service.

Tbe caption of tbe petition contained some surplus words, but it stated a cause of action against tbe firm, and judgment was rendered against it. Why tbe firm should now complain, we fail to see. Of course tbe members of tbe partnership are not parties to the judgment; they can be made such only by action, as provided in Sec. 11651 G. C.

Judgment affirmed.

Marvin and Henry, JJ., concur.


text:
    PAYMENTS
    [Cuyahoga (8th) Circuit Court,
    May 15, 1911.]
    Marvin, Winch and Henry, JJ.
    Evan H. Hopkins, Rec. v. Cleveland & Pittsburgh Coal Co.
    Buyer Bound by Application of Payments Made by the Seller.
    Upon a single contract for 10,000 barrels of cement to be delivered at one place, by direction of the buyer shipments of part were made to different places where it went into buildings and for which, by reason of the failure of the buper, the seller was obliged to file mechanic’s liens, whereupon it applied previous payments on the entire contract in its discretion, upon the several liens, having no direction from the buyer as to the application of payments. In an action against one who had assumed one of the contracts where the buyer had used cement for which a lien had been filed, Held: It was bound by the application of payments made by the seller.

      Thompson & Mine, for plaintiff in error.

      Lang, Cassidy & Copeland, for defendant in error.
   WINCH, J.

Tbis was an agreed ease, submitted without action, pursuant to tbe statute.

It seems that tbe Cleveland & Pittsburgh Coal Co. sold 10,-000 barrels of cement to tbe Carey Construction Co., price stipulated being $1.30 per barrel, f.- o. b. Cleveland. It shipped tbe cement to various places, in Cleveland and Detroit, as directed by tbe construction company, where the latter company had building contracts.

Among other shipments was one of 2,400 barrels to Detroit, on which the construction company paid the freight, amounting to $759.05, and forwarded the receipted bills to the coal company, which agreed to a credit of $547.20, being the freight paid from point of shipment to Cleveland, which it had agreed to pay.

The cement shipped to Detroit was used in the construction of the Fairview Pumping Station job, so-called, which the Carey Construction Co. was engaged in building. That company failed, a receiver was appointed, and he, under the authority of court, sold to the Hunkin-Conkey Construction Co. all right, title and interest in said contract, and the latter company assumed and agreed to pay all bills for material in connection with said work.

The Hunkin company claims that said sum of $547.10 overpaid on the freight of said 2,400 barrels of cement shipped to Detroit, should be credited as payment on said 2,400 barrels account. The coal company says it has applied said sum on cement furnished the so-called “Yates” job in Cleveland. The court found with the coal company.

We think this conclusion correct. Here was one account for 10,000 barrels of cement. Various items were charged as shipments were made; credits of payments were made by the coal company on the account generally, until, after failure of the Carey company, it became necessary to file attested accounts against various jobs where the cement had been used, and the coal company elected to credit this $547.20 on the “Yates” job.

This it had a right to do, in the absence of previous directions from the Carey company as to the application of said credit. The Carey company never gave any direction with regard thereto, and we see nothing in the circumstances of the ease obviating the necessity for such direction.

Judgment affirmed.

Marvin and Henry, JJ., concur.


text:
    WEIGHTS AND MEASURES
    [Cuyahoga (8th) Circuit Court,
    May 15, 1911.]
    Marvin, Winch and Henry, JJ.
    State ex rel John Buch v. Charles J. Burns.
    Rectangular Boxes not Sealable.
    The city sealer can not be required to seal rectangular wooden boxes having exactly twice the cubic contents of the standard half bushel.
    Error.

      Lang, Cassidy & Copeland and Geo. 0. Willett, for plaintiff in error.
    N. D. Baker, for defendant in error.
   WINCH, J.

Tbe relator asks that the city sealer be required to seal certain rectangular wooden boxes, each 20 3-4 inches long, 13 inches wide, a fraction less than 8 inches deep, and containing 2150.42 cubic inches, which he alleges have exactly twice the capacity of the standard half bushel.

He says that he is using these boxes as receptacles in which to expose and offer for sale garden products, such as potatoes and onions, which are usually sold by heaped measure.

The bushel does not appear to be recognized as a unit or standard of measure in this state. Section 6414 G. C. provides that “the unit or standard measure of capacity for substances other than liquids, from which all other measures of such substances shall be derived and ascertained, shall be the standard for half bushel measure, furnished this state by the government of the United States, the interior diameter of which is thirteen inches and thirty-nine fortieths of an inch, and the depth is seven inches and one twenty-fourth of an inch.”

Section 6415 G. C. “The peck, half peck, quarter peck, quart and pint measures shall be derived from the half bushel measure by dividing it and each succeeding measure by two.”

Section 6416, G. C. “Articles usually sold by heaped measure shall be heaped in a conical form as high as such articles permit. ’ ’

Sections 7965 to 7968, G. C., inclusive, provide that the professor of physics in the state university shall be, ex officio, state sealer; that standards of weights and measures adopted by the state shall be deposited in a suitable room at the university; that copies of the original standards shall be procured by the state sealer for the use of each county in the state, and be delivered to the auditor thereof, as follows:

“One-half bushel measure, of one-eighth inch copper, with brass rim; one gallon measure, of one-sixteenth inch copper, with brass rim and handle; one-half gallon, one quart, one pint, and one-half pint measures, to be made in the same manner and of the same material. The state sealer shall furnish like copies of the original standards to the sealer of any city or village upon application therefor.”

Sections 4318 to 4322, G. C., inclusive, provide for the appointment of a sealer of weights and measures in' cities and villages, and his duties.

Section 4322, G. C., reads:

“The sealer of weights and measures shall compare all weights and measures brought to him for that purpose with the copies in his possession, and when such weights and measures are made exactly to agree with such copies, he shall seal and mark them.”

Sections 3616 and 3651, G. C., provide that municipal corporations shall have power

1‘ To regulate the weighing and measuring of hay, wood and coal, and other articles exposed for sale, and to provide for the seizure, forfeiture, and destruction of weights and measures, implements and appliances for measuring and weighing, which are imperfect or liable to indicate false or inaccurate weight or measure, or which do not conform to the standards established by law, and which are known, used or kept to be used for weighing or measuring articles to be purchased, sold or offered or exposed for sale.”

The petition sets forth certain sections of the ordinances of the city of Cleveland, to wit, 1415 to 1421 inclusive, which relate to weights and measures, but we find no specific direction therein that the city sealer shall provide any standard for a bushel. On the contrary, the standards adopted by the state of Ohio are made the test by which all weights and measures shall be compared and determined.

There are some provisions of these ordinances making it unlawful for any person to expose for sale any commodity, article or articles which are commonly sold by measure, in any measure or utensil or receptacle, which is not tested, marked and sealed. Whether this ordinance is valid in so far as it requires receptacles not used as measures to be sealed need not be decided. While this question is squarely raised by demurrer to the petition, yet, as it appears clearly from the petition that the boxes described, when heaped up, do not measure as much as two heaped-up circular half bushels, of the standard prescribed by law, the relief prayed is denied on that ground alone.

A rectangular box can not be heaped in a conical form, as required by law, and if heaped at all, will not produce the result of a circular measure that is heaped.

It may also be suggested that the law seems to require that all measures be of circular form, instead of square or rectangular, and it is demonstrable that more articles of some size, as potatoes, will go into a round receptacle than into a square one of the same cubic contents. This is so because of the loss of space at the four corners.

This decision is not based upon the proposition that the city sealer can not be required to seal any measure of capacity greater than one-half bushel, though, speaking for myself alone, I am satisfied that such is the law, as I am that the ordinance is invalid in so far as it makes it unlawful to expose any commodity for sale in a receptacle which is not sealed, provided said receptacle is not used as a measure. See Gates v. Cleveland, 43 O. C. C. 80 (18 N. S. 349).

It would appear to be the policy of the law that measures should be of fixed shape and of limited capacity to the end that the people may become familiar with them, and able to detect false measures at a glance.

The demurrer to the petition is sustained and relator not desiring to plead further, the petition is dismissed.

Marvin and Henry, JJ., concur.


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    EXECUTORS AND ADMINISTRATORS
    [Summit (8th) Circuit Court,
    April 12, 1911.]
    Marvin, 'Winch, and Henry, JJ.
    W. Y. Humphries et al. v. H. E. Loomis et al.
    Buyer of Stock Belonging to Estate May Require Proof that Seller is Administrator and Has Order to Sell.
    One who has agreed to buy stock belonging to an estate has a right to refuse to accept it until he is furnished proof that the person agreeing to sell it is administrator of the estate and has obtained an order of the proper court fixing the price at which the sale may be made.
    Error.

      Slabaugh, Seiberling & Ruber and John P. Hunter, for plaintiffs in error.

      Voris, Vaughn & Voris, Rogers & Rowley and C. C. Benner, for defendant in error.
   WINCH, J.

This was an action for the purchase price of 10,000 shares of the capital stock of the Powell Coal & Coke Co. at an agreed price of $100,000 which plaintiffs claimed to have sold and delivered to the defendants under a certain contract with them.

In the common pleas court a verdict for the defendants was directed at the close of the plaintiff’s evidence.

Very interesting propositions of law have been argued in this court regarding the proper legal effect to be given to said contract, but, for the first time in this court we are told, objection to the validity of said contract is based upon a lack of valid signatures thereto on the part of the plaintiffs.

If this point is well taken, a verdict for the defendants was properly directed, and it is unnecessary to determine other matters.

Among other signatures to the contract appears the following: “Estate of Richard M. Jennings, Evan D. Jennings, administrator, 449 shares.”

The answer of the defendants admits that they signed the alleged contract, but says that it “was never delivered either by said plaintiffs or said defendants, and never at any time became of any validity, or gave rise to any liability whatsoever on the part of said defendants or either of them.” It further alleges that “said plaintiffs did not execute and deliver said instrument in writing to said defendants on or before October 15th, 1907 (the day set for the completion of the negotiations), but on the contrary, never did execute and deliver same.” .

Proof was made that 449 shares of said stock stood in the name of Richard M. Jennings, but no proof was offered that Evan D. Jennings was administrator of his estate, or that he had any order of the proper court of Pennsylvania authorizing or directing him to sell it or to enter into a contract for the sale thereof.

No evidence was offered as to the laws of Pennsylvania governing administrators in the sale of shares of stock belonging to the estates of deceased persons, so we must assume that its laws on the subject are the same as the laws of Ohio. Section 10704, G. C., provides:

“The executor or administrator may sell either at public or private sale, railroad stock or other stock or shares in a corporation, but if he sells at private sale, it must be for a sum not less than for that purpose is fixed by an order of the probate court.”

Such being the law, it seems that one buying stock belonging to an estate has a right to demand proof that the person offering to sell such stock is administrator of the estate, and has an order of the proper court fixing the price at which the sale may be made.

No proof of these facts having been presented to the defendants, they had a right to refuse to go on with the contract, and no evidence being adduced on the subject at the trial, the court properly held that the defendants were not bound by the contract, for their agreement was for all the stock and the Jennings stock was never so offered to them as to bind the Jennings estate.

The case of Hicks v. Stone, 9 Dec. Re. 132 (11 Bull. 67, 72), cited by counsel for plaintiffs in error, is not in point. There Judge Blandin held that an executed sale of stock made by an administrator without an order from the probate court, but afterwards reported to the court in the administrator’s account, ■which, was approved by the court, would not be set aside, the purchaser having paid full value for the stock, and there being no fraud alleged.

But here we have a contract which the court is asked to enforce, notwithstanding the administrator had not complied with the plain direction of the law. Relief to him, under such circumstances, should be denied; the purchaser has asked no more than he had a right to ask, and the administrator has neglected his plain duty.

For the reasons stated, because it seems to be decisive of the ease, and without consideration of the other important legal propositions so ably argued by counsel, the judgment of the common pleas court is affirmed.

Marvin and Henry, JJ., concur.


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    BIRDS, FISH AND GAME LAWS
    [Summit (8th.) Circuit Court,
    April 12, 1911.]
    Marvin, Winch and Henry, JJ.
    William Winkleman v. State.
    Law Relating to Seines and Fish Traps, Constitutional.
    Section 1426 G. C., making it an offense to have in possession a fish trap in the inland fishing district of the state, when considered in connection with subsequent sections making exceptions thereto, is constitutional.
    Error.

      Voris, Vaughn & Voris, for plaintiff in error.

      Warren Thomas and F. J. Rockwell, for defendant in error.
   WINCH, J.

Plaintiff in error was tried before a justice of the peace, and found guilty of “having in his possession three certain devices for catching fish, to wit, three fish traps, contrary to the statute in such case made and provided.” He was fined twenty-five dollars.

Upon error to the common pleas court, the judgment of the justice was affirmed, and this proceeding is brought for the purpose of reviewing said judgment.

It is claimed that the evidence did not warrant a conviction; that while Winkleman had made the trap nets, and had them in his possession, his possession of them was perfectly innocent, as he did not intend to use them unless, upon legal advice which he was awaiting, it was found that he had a right to use them in a stream which ran through his father’s farm.

This claim is rather fishy; one of the traps had been used; the justice was warranted in his conclusion as to the purpose the young man intended them for, if any offense was charged in the affidavit.

This brings us to the main contention in the case:

It is claimed that the mere possession of fish traps is not sufficient to constitute an offense; that the state must allege and prove an intention on the part of the accused to use the traps for an unlawful purpose. It is said that any other construction of the statute would make it unconstitutional, contravening Art. 1, Sec. 1 of the bill of rights, which guarantees the right to possess, enjoy and protect property.

We do not so view the statutes on this subject. Section 1426 G. C. provides that no person shall have in possession a fish trap in the inland fishing district of this state. Summit county is within said district.

Section 1456 provides that it is not unlawful to take fish in any manner in the ponds or lagoons formed by the receding waters of any river, when such ponds and lagoons no longer have any connection with the channels of such streams, nor in private artificial fish ponds or privately owned lakes.

Section 1457 provides that it is not unlawful for the owner of a private artificial fish pond to have traps in his possession for use therein, and that it is not unlawful to have in possession fish traps to be used in catching fish in the Ohio river, Lake Brie and certain of its bays, when the traps are kept within one mile of said waters.

Section 1458 says that it is not unlawful for manufacturers or dealers to have fish traps in their possession, when kept in their regular places of business, or for common carriers to have them in their possession for transportation.

Section 1461 provides, that the finding of a trap had in possession in violation of law shall be prima facie evidence of the guilt of the person owning, using or claiming such property.

"We think these exceptions are ample and reasonable so that the law on this subject is entirely within the Constitution.

Nor was it necessary that the affidavit contain negative averments as to the many exceptions enumerated. Becker v. State, 8 Ohio St. 391; Billingheimer v. State, 32 Ohio St. 435; State v. Hutchinson, 55 Ohio St. 573 [45 N. E. 1043]; Hale v. State, 58 Ohio St. 676 [51 N. E. 154].

The accused made no effort to bring himself within any of said exceptions; indeed, as first stated, the evidence showed that his possession of the traps was not an innocent possession, and warranted his conviction.

Judgment affirmed.

Marvin and Henry, JJ., concur.


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    BANKS AND BANKING — BILLS AND NOTES
    [Cuyahoga (8th) Circuit Court,
    June 2, 1911.]
    Marvin, Winch and Henry, JJ.
    Massachusetts Bonding & Life Ins. Co. v. Cornelius A. Fish et al.
    Deposits of Maker of Note Held by Bank Set-Off Against Assignee of Note.
    When husband and wife are jointly indebted to a bank upon a promissory note and one of them deposits money to his own credit in the bank and it, after maturity of the note, assigns the same to another, of which assignment the makers of the note have no notice, and one of them continues to make deposits in the bank which later become insolvent, upon suit being brought upon the note, the deposits made in the bank both before and after the assignment of the note may be set off against the amount due thereon.
    Error.

      Brady, Bowling & Hole, for plaintiff in error.

      White, Johnson & Cannon, for defendant in error.
   WINCH, J.

“The holder of a promissory note, who took it after maturity, holds it subject to every objection, including equitable set off, to which it was subject in the hands of his assignor.” Baker v. Kinsey, 41 Ohio St. 403.

“In equity there are many exceptions to the technical rule that joint and separate debts can not be set off against each other, and insolvency is a sufficient ground for such exception.” 12 Michie Digest, 328, and cases cited.

The insolvency of the bank was sufficiently shown by proof of its assignment for the benefit of its creditors.

The full amount of the deposit was properly set off against the note, including that part deposited after the transfer of the note to the bonding company, but before notice thereof to the makers.

In Follett v. Buyer, 4 Ohio St. 586, 591, it is said by Judge Thurman:

“When an overdue or nonnegotiable note is assigned, the assignee takes it subject to all the equities existing between the payee and the maker; and hence it is competent for the latter, notwithstanding the assignment, to show that it was obtained by fraud, or without consideration, or that before he received notice of the assignment it had been paid or otherwise discharged. So, too, he may set off any liquidated demands which he held against the payee when he first obtained information of the assignment,” etc.

No prejudice resulted from erroneous rulings on evidence called to our attention; they all related to the claim that Fish was principal and his wife surety ón the note. The right to equitable set off in this ease grows out of the insolvency of the bank and not the relation of principal and surety on the note. Evidence erroneously admitted on the latter point would have no prejudicial effect upon the case; there was enough competent evidence to warrant the judgment without it.

Judgment affirmed.

Marvin and Henry, JJ., concur.


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    BILLS AND NOTES
    [Cuyahoga (8th) Circuit Court,
    June 2, 1911.]
    Marvin, Winch and Henry, JJ.
    Helena Kuchenbacher et al. v. Matilda A. Gill.
    Burden of Proof as to Note Negotiated After Consideration Therefor Had Failed.
    In an action upon a promissory note by an endorsee thereof, when it is shown that consideration for the note has failed, the burden is then upon the plaintiff to show that she had no notice of such failure of consideration at the time she became the holder of the note.
    Error.

      L. B. Katz, George Welch and Bichard Inglis, for plaintiff in error.

      Fred Desberg, for defendant in error.
   WINCH, J.

The action was on a promissory note, made since the enactment of the negotiable instrument code, and transferred to the plaintiff, who claimed to be a holder thereof in due course.

The defense was failure of consideration, the note having been given in payment for the erection of a house which the payee agreed to erect, but never completed. Evidence was introduced tending to establish the defendants ’ claim of failure of consideration, and the plaintiff had notice thereof, when she received the note.

On the burden of proof, the court charged the jury that the burden was upon the defendants to show not only failure of consideration, but notice thereof to the holder.

Counsel for paintiffs in error admit that the burden was on them to show failure of consideration, but urge that the burden was with the holder of the note to show that she had no notice thereof.

The question seems settled by Secs. 8164, 8160, 8157 and 8161 G. C., parts of which, germane to the inquiry in hand, read as follows:

“Section 8164. Every holder is deemed prima facie to be a holder in due course, but when it is shown that the title of any person who negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims, acquired the title as a holder in due course. ”

Section 8160. ‘1 The title of a person who negotiates an instrument is defective when he negotiates it in breach of faith, or under such circumstances as amount to a fraud.”

Here the defendants gave evidence tending tó show that the payee negotiated the note after the consideration thereof had failed; this was bad faith and amounted to a fraud on the part of the payee, and so his title was defective under See. 8186 and put the burden upon the holder under See. 8164, to prove that he acquired the title as a holder in due course.

Section 8157 says that ‘ ‘ one is a holder in dire course under the following conditions: * * * 4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

Section 8161. ‘1 To constitute notice of any infirmity in the instrument, or defect in the title of the person negotiating it, the person to whom it is negotiated must have had actual knowledge of such facts, that his action in taking the instrument amounted to bad faith.”

From these four sections the conclusion seems logically to follow that if it is shown that the consideration-of the note has failed, then the burden is on the holder to prove (8164) that he had no notice (8157), i. e., actual knowledge (8161), that the payee of the note who negotiated it to him had negotiated it in breach of faith, or under such circumstances as amount to fraud (8160). In other words, he must show that he had no knowledge of such facts that his action in taking the instrument amounted to bad faith (8161).

Applying this conclusion to the case in hand, if it was shown that the consideration of the note had failed, then the burden was on the plaintiff to show that she had no notice of such failure of consideration at the time of her becoming the holder thereof.

For error in the charge, the judgment is reversed and cause remanded for a new trial.

Marvin and Henry, JJ., concur.


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    COUNTIES — COSTS—PRISONS
    [Cuyahoga (8th) Circuit Court,
    June 2, 1911.]
    Marvin, Winch and Henry, JJ.
    Charles P. Salen v. State, ex rel, etc.
    1. Coupty Comim!ss¡otiers May Contract for Care of Prisoners in Workhouse.
    The county commissioners may contract for the care of persons convicted of misdemeanors, in a workhouse of a municipality within the county.
    2. Prisoners in Workhouse Pay Fines by Labor.
    The provision in Sec. 4151 G. C. for sentencing a prisoner to the workhouse “until he be discharged at the rate of sixty cents per day for each day of confinement,” means that the prisoner pays his fine, at the rate of sixty cents a day, by his labor.
    3. Clerk May Collect Fees on Treasurers’ Credit of Prisoners' Earnings in Workhouse.
    When it appears that the amount to he paid by the county for the care of prisoners in the city workhouse is decreased by the amount realized from the work of the prisoners, the clerk of . courts may collect of the county treasurer his fees in cases in which said prisoners were convicted.
    Error.

      Smith, Taft & Arter, for plaintiff in error.

      John A. Cline and W. D. Meals, for defendant in error.
   WINCH, J.

The prosecuting attorney of Cuyahoga county brought an action against Charles P. Salen, to recoyer from him certain fees alleged to have been unlawfully charged and collected by him as clerk of the courts of said county.

The clerk answered, setting up his defense, and a demurrer to his answer to the first cause of action stated in the petition was sustained. This is the only ruling in the case brought to this court for review.

Said answer to the first cause of action is as follows:

“Defendant admits that at various times while he has been county clerk he has presented to the board of county commissioners, bills for costs accruing to him as said clerk, aggregating $1,980.43, and that these costs accrued in actions wherein the defendants were convicted of misdemeanors and were actually sentenced to the workhouse, under the control of the city of Cleveland, a municipal corporation within the limits of said county, and that in each instance the defendants were unable to pay said costs, and said defendants were confined to the workhouse until they were discharged therefrom, by reason of the provisions of the law entitling them to a credit of a per diem allowance of 60c per day; that each of said bills was allowed by the board of county commissioners, and defendant further avers that said allowance was made on the approval of the other county officers, and alleges that said allowance was in all respects in accordance with the law and made with full authority.
“Defendant further alleges that the county of Cuyahoga has no workhouse, and that it has an agreement with the city council of the city of Cleveland, and that by reason thereof the amount to be paid by the county for the care of said prisoners is decreased in the amount realized from the work of said prisoners.
“Defendant further alleges that an objection was heretofore made to the allowance of claims of this character at the time a predecessor of this defendant was in office, to wit, one Henry W. Kitchen. That therefore said Kitchen caused to be instituted in the court of common pleas an action in mandamus against the board of county commissioners, being cause number 22269 in said court. That said cause came on to be heard before Hon. G. M. Barber, then a judge in the court of common pleas of Cuyahoga county, Ohio, and in said action he expressly ordered the commissioners to pay to the relator, ‘in every case in which judgment was affirmed, the costs paid by plaintiff in error either by labor in the workhouse of the city of Cleveland, or otherwise.’ That said judgment is unreversed and still in full effect and force, and a complete determination of the first cause of action, and has been generally acquiesced in by all of the officers of Cuyahoga county having to do with the allowance of claims of this character, until the state board of examiners determined in their minds that the decision- of the court heretofore made was not in accordance with the views held by said board.”

Now it is said that this answer is bad for several reasons:

First. Because the statute gives no authority to the county commissioners to make a contract for care of persons convicted of misdemeanors, in a workhouse of a municipality within the county.

The point appears to be well taken on the face of the statute, which is now Sec. 12384, G. C., and in fact reads as follows:

‘ ‘ The commissioners of a county, or the council of a municipality wherein there is no workhouse, may agree with the city council, or other authority having control of the workhouse of a city in any other county, or with the board of district workhouses, having a workhouse, upon what terms and conditions persons convicted of misdemeanors or of the violation of an ordinance of such municipality having no workhouse, may be received into such workhouse under sentence thereto.”

Of course, this result was not intended by the legislature. Its purpose was to authorize county commissioners to contract with the authorities of workhouses within the county if any, or without the county, if none within. This seems clear from an •inspection of Sec. 4128, G. C., which reads:

"Wh'en a person is convicted of an offense under the law of the state and the tribunal before which the conviction is had is authorized by law to commit the offender to the county jail, the court may sentence the offender to the workhouse, if there is such in the county. ’ ’

In the case of Kimbleawecs, v. State, 51 Ohio St. 228, 229 [36 N. E. 1072], this statute was held to mean that a defendant convicted in Cuyahoga county should be sentenced to the Cleveland workhouse. Indeed, this court, in case No. 3924, Cleveland v. Cuyahoga Co. (Comrs.), 80 Ohio St. 752 [89 N. E. 1117], specifically held that the commissioners of Cuyahoga county are authorized to contract with the council of the city of Cleveland for the care of prisoners in the Cleveland workhouse.

' Second. It is said that the provisions of law respecting persons in workhouse working out their fines, do not accomplish a payment of said fines inuring to the benefit of the county. The statute in question is now Sec. 4151 G. C. the last clause of which reads as follows:

"In all cases where a fine may be imposed in punishment of an offense, in whole or in part, and the court or magistrate could order that such person stand committed to the jail of the .county until such fine and the costs of prosecution are paid, the court or magistrate may order that such person stand committed to the workhouse until such fine and costs are paid, or until he be discharged at the rate of sixty cents per day for each day of confinement, or be otherwise legally discharged.”

The question is whether the phrase “until he be discharged at the rate of sixty cents per day for each day of confinement” intended that the prisoner pay his fine at the rate of sixty cents a day, by his labor, or is a mere provision for discharge, so that the prisoner be not confined for life.

A test of this question might be invented by putting it in another form, and assuming a situation which would call for its incidental adjudication.

Suppose a man had been fined $18 and committed to the workhouse until the fine should be paid. At the end of ten days’ confinement a friend offers to pay his fine for him. How much must be paid to procure his discharge, the full amount of the fine, $18, or $12, the balance after deducting the ten days at sixty cents per day.

Judge Okey in the case of Cleveland v. Jewett, 39 Ohio St. 271, 272 said:

‘ ‘ A person thus committed to a workhouse may, at any time, pay the amount or balance of his fine and costs in money and obtain a release.”

The answer to the hypothetical question is thus clearly seen to be $12. Hence, the prisoner pays his fine at the rate of sixty cents per day.

In order that the clerk may collect his fees of the county, it must also appear that the county treasurer has received the fine thus paid by the workhouse prisoner, and on this point the clerk’s answer alleges that by reason of said agreement with the city council of the city of Cleveland “the amount to be paid by the county for the care of said prisoners is decreased in the amount realized from this work of said prisoners.”

The truth of this allegation is admitted by the demurrer. We think it completes the clerk’s defense, and entitles him to the fees claimed.

The demurrer to the answer to the first cause of action should have been overruled, and for error in sustaining it the judgment is reversed.

Marvin and Henry, JJ., concur.


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    TRIAL
    [Cuyahoga (8th) Circuit Court,
    June 2, 1911.]
    Marvin, Winch, and Henry, JJ.
    E. E. Stoneman v. Ohio Cultivator Co.
    Verdict Erroneously Directed Against Defendant on Counterclaim for Nominal Damages Not Prejudicial.
    A verdict was erroneously directed against a defendant on a counterclaim under which he had shown himself entitled to nominal damages only; Held: No prejudice arose therefrom because it affected the question of costs only, and the costs were properly assessed against: the defendant on the plaintiff’s claim, set up in the petition.
    Error.

      Frank C. Scott, for plaintiff in error.

      Hidy, Klein & Harris, for defendant in error.
   WINCH, J.

Stoneman bought a hay press of the cultivator company, and gave his note for $150 in part payment thereof. He after-wards sold the hay press to one Kerruish, but as under agreement with the cultivator company, title to the hay press was to remain in it until the entire purchase price was paid, he asked and obtained the cultivator company’s consent to a transfer of title of the hay press to Kerruish, who gave his own notes for $338.40 secured by a chattel mortgage covering the hay press, direct to the cultivator company. Stoneman claims the company agreed to accept Kerruish’s note in payment of his note, and to release him, but this is denied by the company. Kerruish failed to pay his notes when due, and the company thereupon sued Stoneman on his $150 note.

Stoneman answered, admitting the note, but setting up the transaction with Kerruish as a defense thereto. He also set up in his answer two counterclaims, one asking damage for the company’s negligence in prosecuting a suit against Kerruish for replevin of the hay press, and the other praying compensation for his services in locating the mortgaged property and attempting to save its possession. A reply denied these allegations. Tbe issues were tried to a jury, and at tbe close of all tbe evidence, a verdict was directed for the plaintiff for tbe amount due on Stoneman’s note.

This action of tbe court was proper, so far as tbe evidence of Stoneman as to the Kerruish transaction was concerned. He failed to show that tbe Kerruish notes were taken in payment of bis note. On tbe contrary, be proved that tbe Kerruish notes and chattel mortgage were taken as collateral security to bis note.

It seems, however, that he made out a case on tbe first counterclaim, entitling him to nominal damages for tbe company’s negligence in and about tbe collections of tbe Kerruish notes. Roberts v. Thompson, 14 Ohio St. 1.

He might have been entitled to more than nominal damages if be bad shown that tbe bay press was of any value or that Kerruish was insolvent. It may be that Stoneman can not collect tbe Kerruish notes, a surrender of which be is entitled to upon payment of bis own note.

Though there was error in directing a verdict for tbe plaintiff below, it was not prejudicial to plaintiff in error.

Being entitled to nominal damages only on bis counterclaim, a submission of it to tbe jury would not have changed tbe result of tbe ease, for costs would go against him in either event.

Certain rulings on evidence have been called to our attention, which seems to have been erroneous, but as they all referred to tbe issue on tbe counterclaim, and did not affect tbe amount of damages thereunder, no prejudice arose therefrom.

Judgment affirmed.

Marvin and Henry, JJ., concur.


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    DAMAGES — SALES
    [Cuyahoga (8th) Circuit Court,
    June 2, 1911.]
    Marvin, Winch and Henry, JJ.
    John H. Smart v. George R. Teeple.
    1. Option to Return Horse Sold Under Warranty or Recover Damages for Breach.
    When a horse is sold under warranty and one of the conditions of the sale is that the purchaser if not satisfied with the horse after trial thereof, might return him the next day and receive his money back, the purchaser has his election, upon breach of the warranty, to return the horse and have his money back, or keep the horse and sue for damages arising from breach of the warranty.
    2. Measure of Damages for Breach of Warranty is Difference between Actual and Sale Values.
    In an action for breach of warranty of a horse, the measure of damages is the difference between the value of the horse, if it had been as represented, and its value as it actually was.
    3. Special Damages to Vehicles by Horse Sold Under Warranty.
    In an action for damages for breach of warranty of a horse, the plaintiff may show special damages suffered by reason of his carriages being injured by the actions of the horse, and expenses in attempting to cure the horse of distemper.

      Smart, Marvin & Ford, for plaintiff in error.

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

This was an action for damages for breach of warranty of a horse, the defendant denying the warranty and breach thereof; he also alleged that one of the conditions of the sale of the horse was that the purchaser, if not satisfied with the horse after trial thereof, might return him the next day and receive back his money.

There was evidence tending to prove the warranty, its breach, and that the condition mentioned was made, but that the plaintiff refused to return the horse and receive his money' and elected to keep the horse and sue for damages rising from breach of the warranty. Verdict and judgment were for the defendant.

The court charged the jury that “if Smart was told at the time of the sale, that if he did not like the horse he might return him, then it was the duty of Smart to so return the horse and get his money, and this was a condition precedent to his right to sue for breach of warranty.”

This was error; the condition was that the purchaser might return the horse; it was optional with him to do so. The law on this subject is well stated in 2 Mecham, Sales, 1807:

“In cases where the language is permissible and not mandatory, it is well settled that the buyer, at his option, may avail himself of the special remedy, or waive it and sue at law for the breach of warranty.” See also 24 Am. & Eng. Enc. of Law, 1154, and eases cited.

The authorities submitted by counsel for defendant in error are all in accord or consistent with this rule.

The court also erred in his charge as to the measure of damage which should have been stated as the difference between the value of the horse, if it had been as represented, and its value as it actually was.

The horse having been bought at a well advertised auction sale, the court said:

“If it was an open market sale, properly advertised, wasn’t the purchase price of this horse the fair market value of the horse? That is for you to determine from the evidence in this cause, gentlemen. I am not going to say to you that as a matter of law, that was the fair market value of this horse; but I say you must take all things into consideration to show whether or not it was not the fair market value of this horse. ”

This was misleading, very unfair and extremely prejudicial to the plaintiff.

The court also erred in refusing to admit evidence of special damages suffered by the plaintiff by reason of damage done to his carriages by the actions of the horse and expenses in attempting to cure the horse of distemper. Smoots v. Foster, 9 Circ. Dec. 218 (16 R. 612).

For error in the charge, as indicated, and for error in ruling on evidence, the judgment is reversed and the cause remanded for a new trial according to law.

Marvin and Henry, JJ., concur.


text:
    EMINENT DOMAIN — RAILROADS
    [Cuyahoga (8th) Circuit Court,
    July 6, 1911.]
    Winch, Norris and. Metcalfe, JJ.
    Judges Norris and Metcalfe of Seventh Circuit Sitting in Place of Judges Marvin and Henry.

      Mary Vanetten v. Cleveland Short Line Ry. J. Frank Masters v. Cleveland Short Line Ry.
    Residence Restrictions in Deed not an Interest in Land Requiring Appropriation by Railroad.
    A restriction by covenant in deeds for lots to their use for residences only, under a general plan of the original grantor, is not such an interest in the lots as requires its appropriation before a railroad company owning the lots can construct a railroad upon them.

      H. M. Roberts, for plaintiffs.

      Kline, Tolies & Morley, for defendants.

       Affirmed no opinion, Vanetten v. Cleveland Short Line Ry., 86 Ohio St. 323.

   WINCH, J.

A majority of the court is of the opinion that the plaintiffs are not entitled to the relief they pray for.

Speaking for myself alone, I believe that the judgment in Cleveland Short Line Ry. v. Duncan, 84 Ohio St. 463, 465, is not based solely upon the proposition that the lot owners were guilty of laches in bringing their suits. The journal entry in that case reads:

1 ‘ On account of such laches, and the character of the alleged interest which plaintiffs below allege they own in said allotments and the several lots thereof, to wit, a restriction by covenant in the deeds for said lots to their use for residences only, under a general plan of the original grantors, the plaintiffs are not entitled to the injunction prayed for.”

While still believing, as a lawyer, that the rights of the plaintiffs amount to an “easement or interest” in the lots purchased by the railroad company, to be used as a part of its right-of-way, as expressed in Sec. 11039, G. C., yet, as a judge, obedient to the law as announced by the Supreme Court, I bow to its conclusion, necessarily deduced from said decision, as I believe, that plaintiffs have no such interest in said premises as require an appropriation thereof before the railroad company can construct its railroad thereon.

The question is not without doubt. It is to be regretted that no opinion was prepared in the Duncan case, for we are unanimous in the opinion that there is no element of laches to be found in the facts of the two cases now before uS.

Judge Metcalfe dissents, believing that the Duncan case adjudicates only the question of laches. If he is right as to the force and effect of said judgment of the Supreme Court, there is no flaw in the reasoning by which he reached a conclusion opposite to that of the majority of the court.

The petitions in both cases are dismissed.

Norris, J., concurs.

Metcalfe, J., dissents.


author: MARVIN, J.

text:
    LIBEL AND SLANDER — TRIAL
    [Cuyahoga (8th) Circuit Court,
    April 15, 1907.]
    Winch, Henry and Marvin, JJ.
    Akron Democrat v. Lawrence Conrad.
    1. Retraction to be Available as Defense in Libel Suit Must be Unequivocal.
    A retraction of a libel, to be available as a defense, must be unequivocal and refer distinctly to the original article.
    2. Excessive Verdict in Libel Case.
    A verdict for $500 in a libel case is too much in absence of a showing of malice. Remittitur of $350 ordered.
    Error.
   MARVIN, J.

The parties here are reversed from the order in which they appeared in the court below, but will be spoken of in this opinion as they were in the court below; that is, the plaintiff in error will be spoken of as the defendant, and the defendant in error will be spoken of as plaintiff.

The defendant is the publisher of a daily newspaper having a large circulation in the city of Akron and elsewhere. In its-issue of-, it published an article headed in large type, indicating that a mystery had been solved in reference to the disappearance from Akron of one Lawrence Conrad, a former resident of Akron. The article then went on to say that one Lewis, a former resident of Akron, had recently visited in the city, and had stated to a reporter of the newspaper published by the defendant, that Lawrence Conrad, whose schoolmate he had been at the Broadway school house at Akron, years ago, was recently seen by him at a town named in Nevada. The article went into details as to how Lewis came to see him, and then stated that Lewis further said that within a day or two after seeing Lawrence Conrad, he saw an account in a newspaper published near the place where he saw Conrad, that three men had been engaged in a bank robbery, and that one of the robbers had been killed and that a picture of -the robber thus killed was published in the paper; that he (Lewis) at once recognized it as Lawrence Conrad. Then the newspaper went on to say that Conrad had been missing from Akron for some eight or nine years; that his family thought he might have enlisted in the army and navy during that time and been killed, and that they had made efforts to ascertain through the army and navy departments of the government whether this was a fact, but had been unable to learn that it was, and that through this publication would bring disgrace upon his name and pain to his relatives and friends, yet it cleared up the mystery of his disappearance, for the article stated, that during all the time he had been absent from Akron, his family had failed to hear from him.

The plaintiff sued the defendant for this publication as a libel, and stated in his petition that it was made of and concerning him, and prayed for damages.

The defendant denied that the publication was of and concerning the plaintiff, and it is said that this publication could not have been of and concerning the plaintiff, for this publication stated that the man of whom Lewis gave them an account was a man now dead. The defendant further answered that the publication about whosoever it might be was made without any malice, and without any desire to injure anybody or intent to injure anybody, but purely as a matter of news, and upon information which it had a right to rely upon as reliable.

It further answered that a retraction of the publication was made within a day or two after it was made.

The original article published was introduced in evidence. It was further shown in evidences that the plaintiff was the only Lawrence Conrad, who, so far as was known, had ever lived in Akron, and he was the Lawrence Conrad who was in school with this man Lewis. The retraction so-called which was published, it was claimed, was such that, tinder See. 5094 E. S. (Secs.-11342, 11343 6. C.), it rebutted entirely any presumption of malice which arose from the publication of the original article. Without stopping to quote the statute we think the retraction is not as contemplated by the statute. Nowhere in the retraction is it stated or in any wise implied that the newspaper had published any other article in reference to Lawrence Conrad. The heading was in large type, beginning with the word “mistake” and then followed with other headlines, in large type, and then the article went on to say that Lewis had made a mistake in stating that Lawrence Conrad had been killed while a bank robber, and went on further that Lawrence was a very respectable man living in Akron. But as tending to show at least that the defendant recognized that the publication so made was of the plaintiff, it is stated in the so-called retraction that Lawrence Conrad, of whom Lewis had made the statements in reference to his being killed in a bank robbery, had called at the office of the defendant and told his story.

It would seem from this that there could be no doubt that the defendant recognized that the article which it had published was of the plaintiff.

. Proceeding to say something of the sufficiency of the retraction under the statutes, attention is called to the case of Gray v. Times Newspaper Co., 74 Minn. 452 [77 N. W. 204; 73 Am. St. 363]. An examination of that case will show that the so-called retraction there published was more full than the one published in this case; the court says, speaking of such retraction:

“The statute does not require the retraction to be in any particular form. It must, however, clearly refer to and admit the publication of the article complained of, and directly, fully and fairly, without any uncertainty, evasion or subterfuge, retract (that is recall) the alleged false and defamatory statements thereon. It is necessary that the retraction should refer to the original publication, in order to be fair, because of the purpose of the statute in requiring a publication of the retraction in the next issue of the newspaper after service of the notice and in as conspicuous a place and type as was the article complained of, is to eradicate so far as possible from the minds of the persons who read the libel the false and unfavorable impressions of the plaintiff engendered thereby. ’ ’

Our statute, in its provisions as to retraction says, that it may be made “upon demand and within a reasonable time.”

On the part of the plaintiff in this -case it is insisted that the publication of this so-called retraction was not made upon demand; whereas on the part of the defendant it is insisted that what took place at its office at the time the plaintiff called upon them was in effect a demand.

We regard it as unnecessary to determine whether a retraction of a publication without a demand would be equally effective to release the publisher from the imputation of malice as one publication upon demand, and we deem it unnecessary to determine whether this so-called retraction was published upon demand; for we agree with the language used by the trial judge that this publication was not a retraction.

From the evidence it is clear that the defendant did not make the publication with any desire to injure the plaintiff, or anybody else, although it recognized, as appears by the article itself, that it would bring disgrace upon the name of the man about whom it was published; but, in its earnest desire for early news it made this publication as we think, without sufficient investigation, and under such circumstances that the plaintiff is entitled to compensatory damages for that publication. But from the fact that in the very nature of things, those who knew the plaintiff at all must have known that the publication was not true, because they must have known that he had not been absent from Akron for eight years or more as the article stated, we think the damages assessed, namely, $500, was altogether too high, and unless the plaintiff will remit from this judgment the sum of $350, the judgment will be reversed and the case remanded for a new trial. If such remittitur is made the judgment for the $150 remaining will be affirmed.

Winch and Henry, JJ., concur.


text:
    DEEDS — MORTGAGES
    [Lorain (8th) Circuit Court,
    May 1, 1907.]
    Winch, Henry and Harvin, JJ.
    Thomas C. Johnson, Admr. v. Henry B. Kendeigh et al.
    1. Deed Absolute Construed Mortgage.
    A deed absolute, with contract for reconveyance will be construed as a mortgage, rather than as a conditional sale, if the equities of the case require it.
    2. Heir on Deed Construed Mortgage Obtains Relief by Payment of Mortgage Debt.
    An administrator of the deceased grantor of such. a deed, may maintain an action to have it construed as a mortgage, but the relief granted will be a conveyance of the property to the heir or devisee, upon payment of the mortgage debt, such conveyance to be subject to the debts of the 'decedent.
    Error.

      E. G. & H. G. Johnson, for plaintiff in error.

      E. J. Nye, Stroup & F'auver and E. G. & H. G. Johnson, for defendant in error.
   MARVIN, J.

Jonas E. Kendeigh lived in North Amherst, Lorain county, Ohio, and at one time owned a certain parcel of real estate. He died testate, devising by a will, duly admitted to probate, whatever property he left, to the defendant, Benjamin Kendeigh. The real question in this case is whether he owned this real estate at the time of his death, which occurred April 25, 1904.

On the 18th of May, 1903, said Jonas E. Kendeigh executed and delivered to the defendant, Henry B. Kendeigh, a deed of the real estate mentioned. This was in form a deed of general wárranty. On the same day some arrangement was made with reference to this real estate, which was to modify the ownership of the grantee in the lands described in the deed, and .on the 23d day of May, as we hold, to carry ont the agreement made on the 18th, Jonas E. Kendeigh and Henry B. Kendeigh executed a written instrument.

This instrument reads as follows:

“Articles of agreement entered into at North Amherst, Ohio, this 18th day of May, A. D. 1903, by and between Henry D. Kendeigh, party of the first part, and Jonas E. Kendeigh, party of the second part.
“Witnesseth: That whereas second party is now the owner of certain real estate hereinafter described, and said real estate is about to be sold upon execution by the sheriff of Lorain county, Ohio, to satisfy two certain judgments obtained by the North Amherst Bank Co. And whereas, the parties hereto have mutually agreed that second party should convey said real estate to first party and that first party would pay said judgments and all costs thereon, and allow second party to hold possession of the living rooms for life and balance of said real estate for one year, providing second party lives one year and first party would pay the taxes on said premises during said period of time.
“And second party should have the right to redeem said real estate at any time during said period of one year if second party should die before the expiration of one year, in that event the contract shall be void and first party’s title in and to said premises shall be absolute. If second party redeems said real estate and pays to first party his heirs or assigns all money paid out on said real estate at seven per cent, interest, first party, his heirs or assigns shall convey said real estate by a .good and sufficient deed to said second party.
If said property should be sold during this time of one year for more than what first party paid, then said over amount shall be divided as herein mentioned. Second party agrees to pay first party one-half of all moneys over first party’s claim.
“Now, therefore, said second party having this 18th day of May, 1903, executed and delivered to first party a good and sufficient deed for said real estate, and said first party having this day paid said judgments, interest, costs and taxes, and in all the sum of $1,013.83 to date.
‘ ‘ Said real estate is described as follows, to wit :
“Situated in the village of North Amherst, county of Lorain, and state of Ohio, and known as the whole of village lot number 121 in Harris Addition in said village subject to right-■of-way of the L. S. & M. S. Railway Company. Also the east part of village lot number 120 in.said Harris Addition in said village, which parcel is bounded on the north, on the south, on the east, by the respective lines of said lot; and on the south by the respective lines of said lot and on the west by lands in said lot owned by Homer Wilford. Said parcel being fifty-five feet from east to west. Also one other parcel of land in said village and bounded and known as being'a part, of township lot number 24 in Amherst township, and being within said village. Bounded on the north by the right-ofrway. owned by the L. S. & M. S. Railway Co., on the west by the said lots Nos. 120 and 121, and on the south and east by West Railroad street.
Second party agrees to occupy said premises in a safe and careful manner, and that he will not suffer any of said premises to go to waste and that he will do no damages to any of the buildings thereon. Bach of the parties agree that they will do and perform the several things herein mentioned for them to do and perform, and each agrees 'to all the terms and conditions hereof. In witness hereof, the parties set their hands to duplicates hereof this day and year first above written.
“In witness whereof we hereunto set our hands and seals this 22d day of May.
“Henry B. Kendeish,
“Witnessed by “J. E. Kendeigh.
“E. C. Schuler,
“A. H. Kendeigh.
“State of Ohio, Lorain Co.
“Sworn to and subscribed before me a Notary Public this the 22d day of May, A. D. 1903, and by Henry B. Kendeigh and J. E. Kendeigh.
“(Seal.) E. C. Schuler,
“Notary Public

On the part of the plaintiff and of Benjamin Kendeigh, who has answered in this case, it is claimed that the deed already mentioned and this contract construed together, as we hold they should be, make the deed in effect a mortgage, to secure to Henry B. Kendeigh the payment of $1,013.83, which amount was furnished by Henry B. to Jonas on the said 18th day of May, and which was used for the paying off of certain liens already existing upon this real estate.

On the other hand it is urged that this contract was simply a conditional sale by Henry to Jonas. vWe hold that when the deed and this contract are construed together, the deed must be treated as a mortgage, that is, as a pledge of this property for the security of the debt which Jonas owed to Henry B.

In Cotterell v. Long, 20 Ohio 464, the syllabus reads:

“If a contract for the conveyance of land be intended as security for a debt, it is a mortgage, whatever may be its form or the name given it by the parties.”

In Hurley v. Estes, 6 Neb. 386, it is said:

“When an instrument is given as a security for the payment of money or the performance of some collateral act, it is a mortgage, whatever may be its form. ’ ’

In the case of Sluts v. Desenberg, 28 Ohio St. 370, there is a very full discussion of the distinction between those contracts where there is a deed from one party to the other, and a contract back in reference to the property being re-conveyed; as to the distinction which makes in the one case the deed an equitable mortgage, and which makes in the other the contract a conditional sale, and a large number of authorities are cited in that opinion. In that case Judge Ashburn at page 376 uses this language:

“A mortgage, when in form a deed absolute, and a conditional sale, are frequently so nearly allied to each other that it is sometimes difficult to say whether a particular transaction is the one or the other.”

We find in this case no small difficulty in determining which class of cases the facts in this case seem to put the case. But there are significant words in this contract, which, we think, bear upon the question. It is provided, among other things, that the second party is to hold possession of the living rooms for life, and the balance of the real estate for one year, providing the second party lives one year, and the first party should pay all taxes on said premises during said period of time. Also the second party should have the right to redeem said real estate at any time during said period of one year. Again, if said second party redeems said real estate, and pays to said first party all the moneys so paid out by him together with interest at seven per cent., he will at any time on or before one year from the date of said contract, execute and deliver to said second party a good and sufficient deed for said real estate.

Now we think the use of the word “redeem” tends to negative the idea that it was in contemplation of the parties that Henry B. should sell the property to Jonas for a given price •within the year, but it being spoken of as giving Jonas the right to redeem the property, implies that it was simply pledged to Henry. Again, this language is used: “If said property should be sold during this time of one year for more than what first party pays, then said over amount shall be divided as herein mentioned. ’ ’

“Second party (which is Jonas) agrees to pay the first party one-half of all money over the first party’s claim.”

These several clauses of the contract, considered in connection with the entire contract, lead us to the conclusion that the property was pledged by Jonas to Henry B., and that, therefore, the deed held by Henry is in equity a mortgage for the security of the money paid out by him for Jonas or paid to Jonas, and this he is entitled to have, together with the interest at seven per cent.

The evidence is that the property is worth at least seventy-five per cent, more than the amount paid into it by Henry B. and we are not disposed to stretch a point to aid Henry B. in securing this unconscionable advantage.

It may be said that Henry’s equities are fully as strong as Benjamin’s; this being true, there seems to be no very strong equity in favor of either, but Henry B. will receive all the money he has ever paid in the property, together with seven per cent, interest on it, and Benjamin will receive only that which his uncle Jonas saw fit to bequeath to him.

This suit was brought by the administrator, directed against Henry B., and there is a prayer in the petition that the property be conveyed by Henry B. to the plaintiff as administrator. This course can not be taken. The administrator is not entitled to have the property conveyed to him, but he is entitled to have the deed held to be a mortgage, and upon payment by Benjamin, to whom the property is devised, to Henry B. of the amount of the indebtedness from Jonas to Henry B., Benjamin will be entitled to have the property conveyed by Henry B. to him, free from any liens or incumbrances which Henry B. has put upon it, or may have put upon it, but it will, of course, be subject to be sold for the payment of any debts o'f Jonas.

Winch and Henry, JJ., concurs.