author: Deeds, J.

text:
    Flynn, Appellee, v. McHugh et al., Appellants.
    (No. 4809
    Decided January 31, 1955.)

      Mr. John J. McCarthy, for appellee.

      Mr. Joseph P. Sheehy, for appellants.
   Deeds, J.

This is an appeal on questions of law and fact from a judgment of the Court of Common Pleas of Lucas County. The parties will be referred to herein as they appeared in the trial court, the plaintiff-appellee as plaintiff and the defendant-appellants as defendants.

The suit was commenced in the Court of Common Pleas as an action for the rescission and cancellation of a warranty deed. The cause has been submitted to this court for a review upon a transcript of the record and proceedings had in the Court of Common Pleas, including the pleadings, and also upon the evidence contained in the bill of exceptions and the arguments and briefs of counsel for the parties respectively.

It is alleged in substance in the petition of the plaintiff that she was the owner of certain real estate as described and that plaintiff is a person of advanced years and of weakened physical condition and poor health; that the defendants are husband and wife and are the nephew and niece respectively of the plaintiff; and that for some time prior to June 12, 1953, plaintiff had discussed with the defendants the possibility of defendants moving into plaintiff’s home in a separate apartment and entering into an agreement to perform certain services in connection with the premises.

Plaintiff alleged further that in consideration of the promises of the defendants to perform the various services, plaintiff agreed to transfer and convey her real estate as described to the defendants; that to accommodate the defendants, plaintiff had the property remodelled at a cost of $1,000; that on June 12, 1953, defendants came to the residence of the plaintiff with an attorney retained by the defendants; and that plaintiff, relying upon the representations of the defendants and believing them to be true, accepted defendants’ offer to contract, and executed and delivered a warranty deed, thereby conveying said premises to the defendants, reserving to plaintiff a life estate in the real estate.

Plaintiff alleged further that the actions and conduct of the defendants were false and were for the purpose of defrauding plaintiff and of avoiding any obligation, consideration or value for the conveyance of the property; that at the time of the conveyance plaintiff and defendants enjoyed a confidential relationship of aunt and niece and nephew; and that defendants, by exercising such confidential relationship wrongfully and fraudulently, influenced plaintiff to convey the property described in the petition without any binding agreement by defendants to perform the services required of the defendants.

Plaintiff alleged further that following the execution and delivery of the deed to the defendants, the defendants refused to assist plaintiff with plaintiff’s housekeeping and other services required under the agreement between the parties; that defendants threatened to evict plaintiff from her home; and that on or about November 23, 1953, defendant Thomas P. McHugh twisted the arm of plaintiff and threatened her with physical violence.

Plaintiff alleged that the deed executed and delivered to the defendants on June 12, 1953, is of no value and is without consideration; that defendants have entirely failed to perform the terms and conditions upon which the deed was to be based, executed and delivered; and that any consideration contemplated at the time of the execution and transfer has failed and the deed is wholly without consideration. By the prayer of her petition, plaintiff prays that the contract and deed be ordered to be delivered up and cancelled and that the title to the real estate be quieted in the plaintiff, and for such other and further relief as plaintiff may be entitled to in the premises.

The answer of the defendants admits the agreement to perform certain services for the plaintiff in consideration of the execution and delivery by plaintiff of the deed conveying the real estate described to the defendants and that defendants were to occupy an apartment in the property. Defendants deny that they were guilty of fraud or misrepresentation in securing a conveyance of the property from the plaintiff, and allege that the defendants have performed all the services required of them by the terms of their agreement with the plaintiff, except that after a period of about one month the plaintiff refused to co-operate with the defendants and has refused the acceptance of any services from the defendants, although the defendants. have been ready, willing and able at all times to perform fully the services which they undertook to perform by reason of the agreement. The defendants, by their answer, pray that the petition of the plaintiff be dismissed and that defendants recover their costs.

The warranty deed which appears in the record before us as an exhibit, the due execution of which has not been questioned or. put in issue, recites $1 and other good and valuable considerations as being the consideration for the conveyance of the real estate described, and further excepts and reserves to the plaintiff as grantor an estate in the premises for and during her natural life.

The agreement between the parties concerning the services to be rendered by the defendants on behalf of the plaintiff was oral and no part of it was in writing. Consequently, it is necessary for the court to determine from the testimony in the record the terms of the agreement between the parties, which was a principal consideration for the execution and delivery of the deed by the plaintiff to the defendants.

The property in question consisted of a two-story frame building which was originally a residence and at the time of the transaction involved in the case had been converted into a four-family apartment dwelling. The plaintiff had been employed regularly for many years at the district nurse association in the city of Toledo and had acquired the property from her earnings, and had, prior to the transaction with the defendants, been occupying a lower apartment in the building, and on account of her age, being about eighty years, and infirmities, desired to have her nephew, the defendant Thomas P. McHugh, and his family occupy an apartment in the building for the purpose of performing certain services in the upkeep of the premises and in the event the plaintiff became disabled to also care for the plaintiff and perform the household services required in the maintenance of the apartment occupied by the plaintiff. It was also agreed that the defendant Thomas P. McHugh was to pay the expenses incurred for gas in heating the premises, for electric current, water bills and taxes, and defendants were to mow the lawn, maintain the premises in reasonable repair, and, also, to meet the requirements of the other tenants occupying the premises; and plaintiff was to receive the rent paid by the two tenants occupying the remaining apartments.

It is undisputed that since July 1953, when the defendants and their three young children took possession of and have since occupied an apartment in the property, the defendant Thomas P. McHugh has paid the expenses for gas, electricity, water and the taxes; and it is also undisputed that he and his wife, the defendant Marianna K. McHugh, have rendered a great many other services for and on behalf of the plaintiff pursuant to the agreement between the parties. Further, the testimony of the defendants is to the effect that they have stood ready, able and willing to perform all the services which they undertook to perform under the agreement.

The principal evidence of the plaintiff as contained in the bill of exceptions in support of her claim that there has been a failure on the part of the defendants to perform the services required under the agreement is the testimony of the plaintiff that a certain stairway at the rear of the premises was allowed to be and remain out of repair by the defendant Thomas P. McHugh; that defendants failed to remove ashes or keep the basement of the premises clean; and that on one occasion, when plaintiff had visited the apartment of the defendants respecting the care defendants should give their children, the defendant Thomas P. McHugh twisted her arm with considerable violence so that she was unable to use it for a period of about one month; all of which was denied by the defendants.

It appears further from the evidence in the record that the defendant Thomas P. McHugh since early childhood had suffered from a weakness in one of his legs and that the condition has continued throughout most of his life, he now being about thirty-five years of age, and that the plaintiff had affection for and was interested in and did furnish the defendant with help and assistance during his early childhood on account of his infirmity; and it is undisputed that plaintiff desired and intended that Thomas P. McHugh should have the property of the plaintiff after her death, but did not desire to make a will for the reason that it might, as plaintiff anticipated and expressed herself, be contested by other relatives. We also find from the evidence in the record that although the plaintiff did not have an attorney representing her in the transaction involved in the case, it is undisputed that the defendant Thomas P. McHugh asked the plaintiff if she desired an attorney to represent her in the transaction, and that the plaintiff indicated that she did not desire counsel, and also that attorney Joseph P. Sheehy, with whom all the parties were acquainted, was agreeable to the plaintiff.

We find no evidence of any substantial weight that the plaintiff did not know and understand fully that she was executing and delivering her warranty deed conveying the premises in question to the defendants and reserving to herself a life estate in the property. It is also clear without dispute that it was the desire and intention of the plaintiff that her nephew Thomas P. McHugh should have the real estate involved in the action after the plaintiff’s decease and that the only question was concerning the best manner in which that desire could- be carried out by the plaintiff.

• We therefore find and hold that the evidence in the record before us is insufficient to support either the charge of fraud, mistake, or that there is a failure of consideration and, therefore, that the evidence is not sufficient to warrant a rescission or cancellation by the court of the deed in question.

There is no evidence in the record concerning the reasonable rental value of the apartment occupied by the defendants and their three young children, nor is there any evidence showing the aggregate amount being paid by the defendants, represented by gas presumably used in heating all of the apartments, electricity, water and taxes; consequently there is a total lack of evidence upon which the court might otherwise be warranted in granting relief to the plaintiff as representing damages or as a reimbursement to plaintiff for expense incurred for the rendition of services which should have been performed by the defendants. There is likewise no evidence in the record tending to show the reasonable value of the services which it is claimed defendants failed to perform.

The undertaking was obviously destined to be for the advantage of, and was designed to meet the needs and personal requirements of both the plaintiff and the defendants, although fraught with certain natural risks and mutual obligations which the parties were bound to consider before entering upon the venture, as they were all of full age, sound mind, and not strangers but well-acquainted and on friendly relations. We are impressed from the evidence that the defendant Marianna K. McHugh did and stood ready to perform all the services required to be performed by the defendants under the agreement, notwithstanding she was not conversant with the terms of the agreement.

It is also our view of the evidence in the record that the defendant Thomas P. McHugh by his conduct and attitude afforded a basis for justifiable criticism and complaint on the part of the plaintiff, and particularly is this true in view of the advanced age of the plaintiff and her physical infirmities, concerning which the defendant was fully aware when he undertook the performance of the obligations under the arrangement as agreed upon, and that with the exercise of greater patience and more consideration on the part of that defendant a greater degree of harmony may have been possible and the present litigation may have thereby been rendered unnecessary. We are also impressed by the absence of a written agreement between the parties which may have been the means of preventing controversy and misunderstanding between them. However, we do not find sufficient evidence in the record now before us to warrant the granting of any specific legal or equitable relief and for that reason must hold that the petition of the plaintiff should be dismissed and that judgment be entered for the defendants.

We reach the foregoing conclusion on the record in the case before us by reason of the rules of law applicable to the issues presented, as announced clearly in decisions by the Supreme Court of the state.

In the comparatively early decision of the Supreme Court in the case of National Bank v. Wheelock, 52 Ohio St., 534, 40 N. E., 636, the court in the opinion at page 550 stated concerning the degree of proof required to warrant the cancellation of a deed, the following:

“It is the settled policy of the state, as indicated by a uniform course of practice in its courts, and by repeated decision of this court, that instruments of this solemn character, executed in conformity to the provisions of the deeds act, shall not be set aside or defeated of their natural purpose, except upon proper allegations which are supported by evidence of a clear and convincing character. The mere preponderance of evidence, which is sufficient to determine the verdicts of juries in civil actions, is not sufficient.”

In a later decision of the Supreme Court, in the case of McAdams v. McAdams, 80 Ohio St., 232, 88 N. E., 542, in which the facts are in many respects analogous to the facts in the case now before this court, the syllabus is as follows:

“ 1. In an action by the grantor in a deed, to reform the instrument upon the ground that the grantee fraudulently concealed and misstated the contents of the deed to the grantor, when it appears that the grantee is a son of the grantor and an attorney at law, and that such grantee was entrusted with the drafting of the instrument upon his own suggestion, such facts raise a presumption of the existence of relations of trust and confidence between the parties and put upon the grantee the burden of showing that no undue advantage was taken of the grantor in the execution of the deed.

“2. But when it is also clearly apparent in such case that such deed is in apparent accord with previous declarations of the grantor as to his intentions and his subsequent declarations as to what he had done, and that he could read and had ample opportunity before, at, and after, signing the deed to read the same, the presumption of undue advantage by reason of confidential relations is rebutted, and the burden rests upon the grantor to show by clear and convincing proof that the deed is fraudulent.

“3. In such case declarations of the grantor, made in the absence of the grantee, are not competent evidence to prove the alleged fraud; but statements of the grantor which tend to rebut the claim of fraud, whether made before or after the signing of the deed, are admissible.”

Also, in the case of Kroeger, Supt., v. Brody, 130 Ohio St., 559, 200 N. E., 836, a statement from the opinion of the court at page 566 is in our view pertinent to the situation of the plaintiff as shown by the evidence in the case now before this court:

“Ordinarily, one of full age in the possession of his faculties and able to read and write, who signs an instrument and remains acquiescent to its operative effect for some time, may not thereafter escape the consequences by urging that he did not read it or that he relied upon the representations of another as to its contents or significance. Or as Judge Davis remarks in McAdams v. McAdams, 80 Ohio St., 232, 240, 88 N. E., 542, 544: ‘A person of ordinary mind can not be heard to say that he was misled into signing a paper which was different from what he intended, when he could have known the truth by merely looking when he signed.’ ”

In the case of City of Cleveland v. Herron, 102 Ohio St., 218, 131 N. E., 489, the rule of law in this state applicable to the evidence in the case before us is in our view stated in the syllabus of the decision:

“1. The equitable relief of cancellation and rescission of a deed conveying real estate will not be granted for a mere breach of contract.

“2. Failure of the grantee to perform a promise which formed the whole or part of the consideration for the execution of a conveyance gives rise to no right of rescission in the grantor, where such .failure was not expressly made a ground of forfeiture.”

See, also, Cross v. Ledford, 161 Ohio St., 469, 120 N. E. (2d), 118.

It is significant in the case before us that the deed involved and which was executed by the plaintiff contained no condition for forfeiture or any other condition affecting in any way the validity of the instrument conveying the estate in remainder to the defendants. Since the instrument was also free from any ambiguity or uncertainty, it, therefore, can not be declared invalid except upon evidence which meets the requirement of the settled law in this state, which is that it must be both clear and convincing. Nevertheless by reserving to herself a life estate in the premises, the plaintiff is entitled to the enjoyment of all the benefits of a life tenant.

In our view, the relationship of the parties respecting the title, ownership and the future control and possession of the property has been stated clearly by the Supreme Court in the opinion in the case of Brock v. Gregg, Assignee, 63 Ohio St., 289, 299, 58 N. E., 818, as follows:

“Or in other words, had the Probate Court jurisdiction to adjudicate as to the rights and liabilities of Mrs. Brock? She has a life estate in the land and her son has an estate in remainder in the same land. Her estate is separate and independent of his. It is not a right in the land like unassigned dower, but is an estate by itself. Her estate must end before his can begin as an estate in possession. While his estate is vested, the beneficial interest as an estate in possession must await the extinction of her estate. The two estates are to be enjoyed, not at the same time, but in succession, hers first, his afterward. His estate passed by his deed of assignment to his assignee, to be administered under the jurisdiction and orders of the Probate Court. Her estate remained in herself, subject to the mortgage lien upon it in favor of Mr. Houston. Her estate is not a lien on his; neither is his a lien on hers.”

Concerning the claim of a want of consideration made by the plaintiff in her petition, we deem it unnecessary to make comment except to state the well-established genera] rule applicable, which is that courts will not undertake to find or determine the question of the adequacy of consideration supporting a contract or deed if it appears that there was any good or valuable consideration which passed from and between the contracting parties.

The claim of the plaintiff respecting a failure of consideration in the case before us likewise is untenable as not being supported by the evidence when the settled law applicable to that claim is given consideration. The. general rule in the state is stated in 13 Ohio Jurisprudence, 865, Deeds, Section 51, as follows :

“The rule that a mere failure of consideration, if not combined with fraud or bad faith, is not sufficient to warrant cancelation of an executed contract, is applicable where the rescission of a deed is sought on the ground of failure of consideration, even where the title is defective, if the vendee is protected by a warranty deed, though an entire failure of title to a material portion of the land attempted to be conveyed is ordinarily a good ground for rescission.”

Also, we find the law generally in the nation on the subject to be stated.in 26 Corpus Juris Secundum, 195, 196, Section 21, as follows:

“As a general rule a deed which is otherwise valid will not be invalidated by reason of a total or partial failure of consideration, and will nevertheless operate to convey title.
“While it has been recognized that failure of consideration for a conveyance is sufficient ground to warrant a rescission, at least where it is total, as a general rule a deed which is otherwise valid will not be invalidated by reason of a total or partial failure of consideration, and will nevertheless operate to convey title. So, in the absence of statutory authorization, or an express provision for a forfeiture or reconveyance, a deed will not be avoided or canceled because the consideration agreed on is not paid, or because the grantee fails to perform a promise forming the whole or part of the consideration therefor; nor will failure to perform such a promise ordinarily give rise to a lien or charge against the land; nor is a party entitled to have his deed set aside and canceled simply because he has not received the full consideration.”

The right of the possession and full use and enjoyment of one holding the life estate in real property is stated in 16 Ohio Jurisprudence, 434, Estates, Section 50:

“The tenant for life is entitled to the full use and possession of the property; the only restriction upon this use being that the estate of those who are to follow him in possession shall not be permanently diminished in value by his neglecting to do that which an ordinarily prudent person would do in the preservation of his own property, or by doing those things which are not necessary to the full enjoyment of the particular estate and which have the effect permanently to diminish the value of the future estate.”

Therefore it appears, although unnecessary for decision here and we do not undertake to determine the future relation of the parties, the right of the defendants to the possession and use of the apartment occupied by them will be dependent upon the performance by the defendants, or their readiness and ability to so perform, the services which they are obligated to render the plaintiff by virtue of the agreement under which the defendants came into possession of the apartment, otherwise the plaintiff would be entitled to redress against the defendants as tenants in accord with all of the appropriate remedies provided either by law or in equity.

It is a well-established policy of courts of equity that they seldom if ever will undertake to supervise the future conduct of parties in reference to an agreement, such as has been shown to exist by the evidence, in the case now before the court, nevertheless this court can not avoid the impression, considering the relationship of the parties, that an amicable adjustment would be very much to their mutual advantage.

For the reasons stated, judgment will be entered herein for the defendants.

Judgment for defendants.

Fess and Conn, JJ., concur.


source: Caselaw Access Project

author: Wiseman, P. J.

license: Public Domain

text:
    The State of Ohio, Appellee, v. Weed, Appellant,
    (No. 5181
    Decided October 22, 1954.)

      Mr. Frank H. Kearns, prosecuting attorney, and Mr. Joseph Poorman, for appellee.

      Mr. B. Brooke Alloway, for appellant..
   Wiseman, P. J.

This cause has been submitted on motion of defendant, appellant herein, for an order remanding the bill of exceptions upon the suggestion of diminution of the record.

Defendant, appellant herein, claims he is entitled to an order of remand under Section 2321.14, Revised Code, formerly Section 11572a, General Code, which provides:

“When justice requires it, upon notice to all parties, an omission in a bill of exceptions, occurring through accident or error, may be corrected by the reviewing court, or it may be remanded to the trial court for such correction.”

Under this section of the Code the reviewing court may order the bill corrected, or remand the bill to the trial court, only when the omission has occurred “through accident or error.” O’Leary, Exr., v. Burnett, 87 Ohio App., 368, 95 N. E. (2d), 267. In the case at bar it is conceded that the omission did not occur through accident, but it is contended that it occurred through “error.” Was the omission an “error” within the provision of this section?

The defendant was indicted on four counts. The first three counts were under Section 3743.25, Revised Code. The fourth count was under Section 2909.01, Revised Code. Upon defendant’s plea of guilty to the indictment, the court suspended imposition of sentence and directed the probation department to make a report, which was done. The report was presented to the trial court before sentence was pronounced on August 13,1954. After sentence, the defendant filed a motion for new trial and an application for stay of execution, which were overruled, in open court on August 18, 1954. On August 19, 1954, defendant filed his notice of appeal and on August 24, 1954, he filed a motion requesting the court to direct the court reporter to include in the bill of exceptions a copy of the report of the probation department. This motion was overruled.

If the defendant had a legal right to have the report made a part of the bill, it was an error of law to overrule the motion. We do not believe that the word “error” in Section 2321.14, Revised Code, refers to such errors of law. In our opinion the appellant is not entitled to a correction of the bill, or to an order to remand under the provisions of this section.

In the absence of any statutory right, should this court, in the exercise of a sound discretion, order the bill remanded to the trial court for the purpose of making the report of the probation department a part of the bill? This court is rather liberal in exercising its authority to remand the bill upon representation that it does not contain the entire record. In the instant case it is claimed that the report of the probation department is a part of the record and should be made a part of the bill. The report of the probation department was made and submitted under the provisions of Section 2947.06, Revised Code, formerly Section 13451-2, General Code, which provides as follows:

“The trial court may hear testimony of mitigation of a sentence at the term of conviction or plea, or at the next term. The prosecuting attorney may offer testimony on behalf of the state, to give the court a true understanding of the case. The court shall determine whether sentence ought immediately to be imposed or the defendant placed on probation. The court of its own motion may direct the department of probation of the county wherein the defendant resides, or its own regular probation officer, to make such inquiries and reports as the court requires concerning the defendant. The court may appoint not more than two psychologists or psychiatrists who shall make such reports concerning the defendant as the court requires for the purpose of determining the disposition of the case. Each such psychologist or psychiatrist shall receive a fee to be fixed by the court and taxed in the costs of the case. Such reports shall be made in writing in open court, in the presence of the defendant, except in misdemeanor cases in which sentence may be pronounced in the absence of the defendant. A copy of each such report shall be furnished to the defendant, if present, who may examine the persons making the same, under oath, as to any matter or thing contained therein.” (Emphasis ours.)

In the case at bar it appears that the report was submitted to the trial court but that nothing more was done with it. No testimony concerning the report or its contents was taken, nor was there any attempt made by the defendant to introduce the report into evidence. Under the facts in this case the report is no part of the record.

The provisions of Section 2317.39, Revised Code, formerly Section 11521-1, General Code, which appears in the chapter on evidence, have no application here, as that section refers to reports concerning the merits of a cause before judgment.

The motion, of defendant for an order to remand the bill is overruled.

Motion overruled.

Miller and Hornbeck, JJ., concur.


author: Matthews, P. J.

text:
    Page, Appellant, v. The Provident Savings Bank & Trust Co., Exr., Appellee.
    (No. 7904
    Decided November 22, 1954.)

      Messrs. Aug, Elder & Rielly, for appellant.

      Mr. Walter K. Sibbald, for appellee.
   Matthews, P. J.

This case came on for trial in the Common Pleas Court upon an amended petition, the answer thereto and a reply. At the conclusion of the plaintiff’s evidence, the court sustained the defendant’s motion for an instructed verdict, and, thereafter, overruled the plaintiff’s motion for a new trial and entered judgment on the verdict for the defendant. It is from that judgment that this appeal on questions of law was taken.

It is admitted that the plaintiff, within the time allowed by law, presented to the defendant as executor of the estate of Thomas L. Thayer, deceased, a duly verified claim for $10,000 upon a check or bill of exchange, and that the defendant within two days of its presentation, rejected it. The action is upon that rejected claim.

The evidence shows that .the plaintiff and her husband were friends of Thomas L. Thayer and his wife, Elizabeth, from 1937 or 1938 to the time of the deaths of Thomas L. Thayer and Elizabeth Thayer; and that during most of that time they were neighbors. Their residence lots adjoined in the rear. Commencing in 1943, when Mrs. Thayer was injured in an automobile accident, and from that time on for the rest of her life, her health was poor. Her health became such in 1948 that trained nurses had to attend her from that time until her death. She died in January of 1950. There is also evidence that Mr. Thayer’s health was not robust.

There is evidence that during the period from 1943 to 1948, both inclusive, Mr. and Mrs. Thayer had no domestic employees as a part of their household. They endeavored to do the housework themselves, but found it burdensome. During all this time Mr. and Mrs. Thayer were customers of the plaintiff. Whether they paid the plaintiff for professional services does not appear. No claim therefor was presented.

By 1943, the plaintiff had developed the more or less regular habit of assisting them in taking care of their home and in taking prepared food to them at mealtime, and also bottles of wine at rather regular intervals. Perhaps, in the course of time, Mr. and Mrs. Thayer came to rely on the plaintiff’s friendship. It is not clear on whose suggestion or initiative this practice originated. It was undoubtedly inspired by friendship and neighborliness in the beginning and without any thought of treating it as a business transaction. We find nothing in the evidence relating to the period from 1943 to 1948 from which we would be justified in inferring that the plaintiff expected to receive, or the Thayers expected to pay, a quid pro quo.

There is evidence that about 1940, Mrs. Thayer, in speaking of the plaintiff, in plaintiff’s presence, said: “Oh, she has been so good to us, Ann, better than any relative we ever had,” and, “you don’t need to worry, you will be well taken care of when the time comes, for all you have done for us.” That is the only suggestion of compensation during Mrs. Thayer’s lifetime. Whether that compensation was to be in Mrs. Thayer’s lifetime or by provision in her will cannot be determined from the language used. It was a voluntary statement, not suggested by any statement by plaintiff that she expected compensation. During all this time the plaintiff was engaged in operating a beauty shop or parlor, and, without doubt, devoted most of her time to that business.

It was not until after Mrs. Thayer’s death that the first suggestion appears that the relation between the plaintiff and Mr. Thayer had been, or would be, governed by the rules of law relating to business transactions. On January 13, 1950, Thomas L. Thayer executed and delivered to the plaintiff a document, variously referred to as a check or bill of exchange, in the words and figures following:

“The Fifth Third Union Trust Co.
Cincinnati, Ohio, January 13, 1950
“Pay to the
Order of pay to the order of Ann Page . .$10,000.00
Ten thousand................00/ Dollars
“Not to be cashed untill
I pass away Thomas L. Thayer”

It is upon this document that the claim of the plaintiff is based.

The plaintiff’s husband testified that “Mr. Thayer has told me a good many times that Ann had done more for them than anybody else and they don’t know how they could have got along without her, and Mr. Thayer also said that they worshipped her and lots of time Mr. [Mrs.] Thayer called her her little sister”; and also that “He has often told me that Ann would be well taken care of and would be fully paid for everything she had done for him.”

And, referring to a conversation with Mr. Thayer, he testified further: “Well, he said that Ann had always been so nice to him and he wanted Ann to be paid and he gave her the check and says she was well worth it and wanted her to have it.”

It would be impossible to make even a reasonable approximation of the time devoted by the plaintiff to the affairs of Mr. and Mrs. Thayer, or of the amount of food furnished. It is clear that during all the time from 1943 to 1948 she was in constant attendance at her place of business during business hours, and that the time she devoted to the affairs of Mr. and Mrs. Thayer was largely after business hours, or, if during business hours, when it would not unduly interfere with her activities as a beautician. Her attention to Mr. and Mrs. Thayer was sporadic, without continuity. There is no estimate even of the number of hours or days consumed. There was no estimate of the number of meals prepared or food and drink supplied. The testimony of the reasonable value of the services and food and drink was necessarily no more than a guess.

The first paragraph of the syllabus of the ease of Carlson v. Krantz, 172 Minn., 242, 214 N. W., 928, as reported in 54 A. L. R., 545, is as follows:

“Even though services are rendered or acts done on request, there is no liability where the circumstances repel the inference that compensation was intended. So, when services are performed, acts done, or promises made solely for charitable purposes, and without the intention of assuming contractual obligation, the law will not imply such obligation.”

In the annotation to the foregoing case, at page 549, the general rule is stated as being:

“To render one liable as debtor under an implied promise, it must be shown not only that the services were valuable, but also that they were rendered under such circumstances as to raise the presumption that the parties intended and understood that they were to be paid for, or at least, that the circumstances were such that a reasonable man, in the same situation as that of a person who receives and is benefited by them, would and ought to understand that compensation was to be paid for them.”

Many cases illustrating this rule are commented upon.

In 58 American Jurisprudence, 516, 517, Section 8, we find it stated that:

“No promise will be implied to pay for services rendered by one person for another when at the time of their rendition there was no intent to charge or expectation of payment, as where services are rendered from motives of friendliness, neighborliness, kindness, or charity. Assumpsit cannot be based on a spontaneous and unasked service, rendered through kind-, ness or other motive, and not to be accounted for on the theory of an expectation of payment. This is merely a corollary of the general principle in the law of contracts that all contracts must be good or bad in their original creation, and must not depend on subsequent contingencies. Liability for services cannot hinge on whether the party chooses at a future date to make them a gift or a charge.
i i # # *
“If services are rendered in reliance solely on the recipient’s generosity, in expectation of a gift inter vivos or by will, but the person rendering the services is disappointed in his expectation, no action can be maintained for the value of the services. In the absence of fraud, mere ignorance on the part of a person rendering gratuitous services that the recipient is able to pay for them will not entitle him to compensation therefor.”

The relationship between the plaintiff and Mr. and Mrs. Thayer began in a spirit of friendship and without any suggestion of commercialism, and that relationship continued to be controlled by that spirit until such time as the parties manifested an intent to change it. There must be evidence of that change. We fail to find any such evidence. We do find in the expression of Mrs. Thayer an appreciation of the acts of friendship by the plaintiff and an intention to reciprocate ‘ ‘ when the time comes, ’ ’ but we fail to find any evidence from which a reasonable inference could be drawn that Mrs. Thayer intended to bind herself or her husband by contract to pay for the services which the plaintiff had or would perform.

Turning now to the statements made by Mr. Thayer, let us analyze them. He said at an unspecified time that ‘'‘Ann would be well taken care of and would be fully paid for everything she had done for him.” Can it be said that he thereby admitted a legal indebtedness — that he was bound to pay — and could be forced to pay? We cannot so construe it.

The check or bill of exchange that Mr. Thayer gave to plaintiff shortly after Mrs. Thayer’s death does not admit an indebtedness. It is true that a negotiable instrument imports consideration and places the burden of proof upon a defendant. It is true also that the mere fact that an instrument is made payable upon or after death does not destroy its negotiability or make it testamentary in character. 7 American Jurisprudence, 873, Section 149. However, whether it is one or the other is dependent on the facts when the question arises between the original payee and the estate of the promissor, and that cannot be determined by clothing the promise in the form of a negotiable instrument.

In this case, the plaintiff assumed to prove the consideration for which the check was given. In our judgment it showed that consideration was lacking and that the intent in giving the check was not to discharge an existing debt but rather to bestow a gratuity to take effect upon death, and that purpose must fail because it was testamentary in character and not executed with the formalities required by law.

We find no prejudicial error in the record.

The judgment is affirmed. .

Judgment affirmed.

Matthews, P. J., and Hildebrant, J., concur.


author: Collier, J.

text:
    City of Ironton, Appellee, v. Bundy, Appellant.
    (No. 870
    Decided April 9, 1954.)

      Mr. Homer M. Edwards, city solicitor, for appellee.

      Messrs. Riley & Riley, for appellant.
   Collier, J.

The appellant, David Bundy, on December 9, 1953, was convicted of a criminal offense in the Municipal Court of the city of Ironton, Ohio, and the' judgment was affirmed by the Common Pleas Court of Lawrence County. The original affidavit charging the alleged offense reads as follows:

“David Bundy did unlawfully fail to obey an officer in line of his duty, one, Officer Robert Griffith. Contrary to the ordinance in such case made and provided and against the peace and dignity of the city of Iron-ton. (Signed) Robert Griffith.”

The defendant, appellant herein, objected to the sufficiency of this affidavit and thereupon the city solicitor moved to amend the affidavit in the following manner:

“That David Bundy did unlawfully fail to comply with the lawful order and a lawful signal of a police officer, contrary to Chapter 9, Article 1, Section 4 of the Code of the City of Ironton, Ohio.”

The trial court sustained this motion and allowed the affidavit to be amended in the manner above set forth. The amended affidavit was not verified. To all of which the defendant objected and saved his exceptions to the ruling of the court as a matter of record.

The question presented is whether, in the trial of a criminal case, the court has authority to allow the affidavit charging the offense to be amended without verification by the individual preferring the charges. This question has been before the reviewing courts of Ohio on several occasions and the ruling is definitely established that courts have no such authority. It is held in the syllabus in the case of Diebler v. State, 43 Ohio App., 350, 183 N. E., 84:

“A court or magistrate is without authority to amend or change an affidavit in a criminal action without a new verification by the affiant, or to force an accused to trial upon an affidavit so amended or changed. ’ ’

See, also, Snyder v. State, ex rel. McCoy, 53 Ohio App., 370, 4 N. E. (2d), 993; and City of Toledo v. Harris, 56 Ohio App., 251, 10 N. E. (2d), 454.

Section 2941.30, Revised Code (Section 13437-29, General Code), expressly provides authority for amendment of indictments and informations, but nowhere in our statutes is there given power to amend an affidavit. There are no common-law crimes in Ohio. They are all purely statutory, and all criminal statutes must be strictly construed. Likewise, criminal procedure in Ohio is prescribed by statute and, in the absence of statutory authority to amend an affidavit, no such authority exists.

An indictment is a written, legal accusation made against one and presented by a grand jury; an information is a charge or accusation made by a court or some officer thereof; and an affidavit is a charge made and preferred by an individual. The court may exercise control over its own pleadings such as an indictment or information but has no authority to change a sworn statement contained in an affidavit made by an individual without verification by the affiant. In the instant case the defendant was tried upon an unsworn charge and it is a statutory requirement in a criminal action that the affidavit must be sworn to by the individual preferring the charges.

We, therefore, conclude that the Municipal Court was without authority to proceed to trial upon the unverified amended affidavit and we do not find it necessary to consider the record to determine whether or not the evidence is sufficient to establish the defendant’s guilt. The judgment of the Common Pleas Court affirming the judgment of the Municipal Court finding the defendant guilty is reversed.

Judgment reversed.

Gillen, P. J., and McCurdy, J., concur.


author: Miller, J.

text:
    Haynay et al., d. b. a. Haynay’s Greenhills Lanes, Appellants, v. Board of Liquor Control et al., Appellees.
    (No. 5090
    Decided September 24, 1954.)

      Messrs. Cors, Scherer, Hair & Hartsock and Mr. Louis J. Schneider, Jr., for appellants.

      Mr. C. William O’Neill, attorney general, and Mr. Kiehner Johnson, for appellees.
   Miller, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming an order of the Board of Liquor Control sustaining the department in denying the appellants a transfer of their D-l liquor permit from a location in the city of Cincinnati to the village of Greenhills, an incorporated subdivision, in Hamilton County, Ohio. The grounds for the rejection were based upon regulation No. 64 issued by the board and under which it was found the number of D-l permits was frozen at two, and that this number had previously been granted. The appellants contend that the aforesaid regulation contains an exception with reference to the transfer of permits under regulation No. 14 and that they come within this exception.

These sections provide:

“Resolution No. 64: Section II-(2) The number of C-l, C-2, D-l and D-2 permits which may be issued within the state of Ohio and within each political subdivision thereof is hereby limited to a figure which shall be equal to the number of C-l, C-2, D-l and D-2 permits issued and outstanding in the state of Ohio and in each political subdivision thereof as of June 27, 1952, plus the number issued pursuant to applications on file on or before June 27, 1952. Where an application for C-l, C-2, D-l or D-2 permit was filed prior to June 27, 1952, and subsequent to December 18, 1951, or on or before April 11, 1949, and said application was during the period between December 19, 1951, and June 27, 1952, cancelled or rejected by the department for any reason, the refiling of such an application by the same applicant for the same type of permit or permits for the same location as originally applied for shall be considered and treated as though filed on the same date as the original application as filed.
“No new C-l, C-2, D-l or D-2 permits shall be issued except permits issued pursuant to Section II, Regulation 64 or except permits issued pursuant to Regulation 14 and also except new permits issued upon the expiration of any existing permits to the same permit holder for the same location.”
“Regulation No. 14: The holder of a permit issued by the department, may transfer such permit from one location to another by making written application for such transfer to and securing the approval of the department of the same, except that no application for transfer shall be accepted unless filed with the department at least forty-five (45) days prior to the expiration of the permit.
“Permits may be transferred from the holder thereof to another qualified person, firm, partnership or corporation at the same location or another location when such transfer is in connection with a bona fide sale of the business and assets of such permit holder, or in dissolution of a corporation or partnership. In the event that such transfer is neither approved nor rejected within fifteen (15) days prior to the expiration of the permit, the permit holder transferror need not file an application. for renewal. In such cases, if the transfer is rejected by the department or if the permit expires, the permit holder transferror shall then file an application for renewal forthwith.
“Provided, further, that permits may be transferred in case of death, bankruptcy, receivership, guardianship or assignment for benefit of creditors of such permit holder, or in case of a corporate reorganization under federal Bankruptcy Act, and in case of a property settlement between husband and wife, and in case of the transfer of the business to a corporation or partnership organized by a permit holder or between immediate members of a family, or dissolution of a corporation or partnership and distribution of assets to stockholders or partners.”

It will be noted that the exception under regulation No. 64 provides that no new permits shall be issued except pursuant to section II thereof and also except permits issued pursuant to regulation No. 14. This exception, being indefinite and uncertain, requires construction in order that it may be harmonized with the obvious purpose of the regulation which is to limit the number of permits as of June 27, 1952. The general rule in regard to construction of exceptions is found in 37 Ohio Jurisprudence, 781, Section 453:

“Statutory exceptions to the operation of laws, especially if such laws are entitled to a liberal construction, should receive a strict, but reasonable, interpretation. In the absence of direct language, they should not, it has been declared, be carried further than the spirit of the law requires, or enlarged from considerations of apparent hardship or inconvenience.”

The regulation deals with the limiting of permits and the establishment of a certain number in each political subdivision. The exception does not by its terms take the transfer of permits out from the general “freeze” regulation but excludes it from the prohibition of issuing any new permits. The appellants urge that this exception removes the transfer of permits from the “freeze” order. Such a construction would enlarge the exception and result in a liberal construction in the absence of any language leading to that conclusion. It would render ineffective the limitation on the issuance of permits. The rule of construction pertaining to the harmonizing of statutes to get a consistent whole should also be considered. This rule is quoted in 37 Ohio Jurisprudence, 620, Section 342:

“Consistency in statutes is of prime importance, and it is the duty of the court to attempt to harmonize and reconcile laws. That is, a statute or section should, if possible, be so construed as to harmonize and reconcile its provisions with other laws or sections so that all of them may stand. Accordingly, the rule is that all laws newly enacted by the General Assembly must be presumed to harmonize with existing statutes on kindred subjects neither expressly nor impliedly repealed. Moreover, a construction of a statute which destroys the consistency thereof is to be avoided. The statute should, if possible, be so construed that its different parts are in harmony so as to render it a consistent and harmonious whole in subserviency to a common policy. These rules are based upon the presumption, or inference, that the Legislature intended to be consistent and harmonious in the making of laws. This would be especially true where the statutes become effective on the same date or where the Legislature declares in the title of an act that its purpose and intent is to harmonize the laws relating to the subject.”

The construction asserted by the appellants would not be in accord with these general rules of construction. Under their view a transfer of permits should be permitted to any political subdivision in Ohio at the will of the owner. Such transfer would be regardless of the “freeze” quota established within each municipal corporation or political subdivision. We think such a construction is not only against the intent of the regulation but also contrary to the literal language of the first paragraph of section II. It would allow an increase in the number of permits issued in Ohio and in this way permit a contravention of the regulation by allowing unlimited transfers. Upon the transfer of a permit from one corporate subdivision there would then be a place open for a new permit under the regulation since permits would not have been issued up to the number allowed by the “freeze” order. Thus the number of permits issued in Ohio would be increased contrary to the “freeze” regulation which limits the number of permits “within the state of Ohio.” Under the unrestricted transfer of a permit to a different municipality there then might also be in existence permits in excess of the statutory quota found in Section 4303.29, Revised Code, as well as in violation of regulation 64, supra. The Board of Liquor Control, by the promulgation of the regulation, we think, indicated their opinion that the state of Ohio and each of its political subdivisions were adequately served as of the date specified. To allow unrestricted transfers would abrogate this administrative determination. We think that the order of the Director of Liquor Control was in accordance with the law, and the judgment of the Common Pleas Court is, therefore, affirmed.

Judgment affirmed.

Wiseman, P. J., and Hornbeck, J., concur.


author: Fess, J. Conn, J.

text:
    Kohne et al., Appellees, v. Wood et al., Appellants.
    (No. 4795
    Decided November 15, 1954.)

      Messrs. Wetli é Testa, for appellees.

      Messrs. DiSalle, Oreen & Haddad and Mr. James D. Nestroff, for appellants.
   Fess, J.

This is an appeal on questions of law from a judgment of the Toledo Municipal Court in favor of the plaintiffs in the sum of $500.

On February 13, 1953, plaintiffs (hereinafter sometimes referred to as the purchaser) and defendants (hereinafter sometimes referred to as the seller) entered into an agreement in writing whereby the plaintiffs offered to purchase a parcel of real estate from defendants for the sum of $9,900 upon the following terms:

“$25 herewith deposited to apply on the purchase price; the purchasers further agree to pay in cash the additional sum of $225, balance of purchase price to be paid as follows: $250 on closing, balance by G. I. loan for $9,400, when warranty deed is furnished,” etc.

The agreement further provided:

“If this proposition is accepted by the owner within 5 days, on these terms or any other terms whatsoever between the parties hereto, it shall constitute a binding contract for the purchase and sale (through the Walter J. Urban Co., agent) of said property. If the owners fail to accept this proposition upon the terms herein set forth, the said deposit of $25 shall be returned to the purchasers, without any liability upon the part of the Walter J. Urban Co. to either party. If the owners accept this proposition, or any modification thereof, the purchasers hereby agree to deposit with the Walter J. Urban Co. the sum of $225 as additional earnest money which shall be applied on the purchase price.”

The proposition was accepted by the defendants and shortly thereafter plaintiffs paid the broker $225. Thereafter, on or about March 25, plaintiffs paid to the broker an additional $250. Why such payment was made is unexplained, other than that one of the plaintiffs testified he called one of the defendants and told him the deal was going to close within ten days and that he was going to pay the $250 to the broker. Defendants made no objection to the payment of .this additional $250 to the broker. One of the plaintiffs testified also that his offer was made contingent upon securing the $9,400 loan. But he was unable to obtain the necessary financing and the deal was apparently mutually terminated. Thereupon, the purchaser demanded from either the seller or the broker the return of the $500 which had been paid to the broker.

In 8 Ohio Jurisprudence (2d), 95, Section 22, it is stated:

“A real estate broker has no authority, in the absence of special agreement, to receive payment of the purchase money for land sold through his efforts, and one who pays such broker the purchase price of property sold by him in his representative capacity does so at his peril, in the absence of express or apparent authority in the broker to receive such purchase money.” (Citing Frank v. Levy, 24 W. L. B., 227, 13 Dec. Rep., 67.)

It is of interest to note that upon appeal of the Frank case (10 C. C., 554, 6 C. D., 819) the Circuit Court found that the broker had apparent and actual authority, as agent of the plaintiff, to deliver the deed made by the plaintiff to the defendant, and to receive from her the purchase price for the property, and concluded that the owner must suffer the loss as a result of the defalcation of the broker. In other words, the Circuit Court held that payment to the broker was payment to the owner.

Apparent authority in an agent to receive payment may be created by a course of dealing, or previous conduct, leading persons of ordinary prudence to believe that the principal had conferred authority upon the agent to receive payment. 2 Ohio Jurisprudence (2d), 126, Section 75. As a general rule, where a payment is properly made to a known agent acting within the scope of his authority for a disclosed principal, without mistake, fraud or duress, and the payer ultimately becomes entitled to the return of the payment, his action is not against the agent individually, but against the principal. 2 Ohio Jurisprudence (2d), 265, Section 135, citing Dobell v. Koch, 16 Ohio App., 41.

In the instant ease, the listing contract between the owner and the broker merely conferred upon the broker the exclusive right, within 90 days, to sell the property, and contained no provisions regarding receipt of the purchase money. Under the terms of the listing agreement, the broker thereby only became the agent of the owner to negotiate the sale. However, the sales agreement in its terms provided that the $25 deposit and the $225 additional earnest money be paid to the broker, and that upon acceptance of the proposition it should constitute a binding contract for the purchase and sale through the broker of the property. Under the terms of the agreement, the first $250 received by the broker was for and on behalf of his principal, the owner. It may be inferred from the evidence that the broker called the purchaser, advised him that the deal would be ready for closing, and requested payment of the additional $250 incident thereto. The evidence fails to disclose that the broker had any express authority to receive this additional payment. But it can not be held that a finding that the owner clothed the broker with apparent authority to receive this additional payment is against the weight of the evidence or contrary to law. It was the intention of the purchaser to make this payment to the broker to be applied on the ultimate balance due upon the contract. It was therefore the owner’s money.

The owner defendants contend that the Court of Appeals for Hamilton County overruled Dobell v. Koch, supra, in Downey v. Arnonoff, 19 Ohio App., 424. But in the Downey case, the broker expressly agreed to return the earnest money if a satisfactory loan was not procured, or if the title be imperfect. Glens Falls Indemnity Co. v. Kirkpatrick, 46 Ohio App., 23, 187 N. E., 643, and Glen Falls Indemnity Co. v. Bradfute, 44 Ohio App., 189, 184 N. E., 770, turn primarily upon, the liability of a surety upon a broker’s bond and are not applicable to the circumstances presented by the instant case. Phillip Metropolitan Colored M. E. Church v. Wahn-Evans & Co., 153 Ohio St., 335, 91 N. E. (2d), 686, 17 A. L. R. (2d), 1007, is to be distinguished because in that case the broker likewise expressly agreed to refund the deposit of earnest money.

Cases relating to defaulting escrow holders likewise are decided upon the terms of the escrow arrangement and the circumstances under which the payments have been made. 15 A. L. R. (2d), 870. For a comprehensive annotation on the subject of payment to a broker or agent authorized to sell real property as payment to the principal, see 30 A. L. R. (2d), 805.

In the instant case, it is apparent that the $500 was paid upon condition that the loan be secured, but it was paid to the broker as agent for the owner, and there is no evidence to support the claim that the broker was obligated to refund the deposit upon failure to complete the transaction. It is unfortunate, of course, that either party should suffer the loss, but we are forced to the conclusion that the owner is liable for the return of the money. As an abstract proposition, the owner has a right of recovery from the broker for his failure to account for such deposit.

Judgment affirmed.

Deeds, J., concurs.

Conn, J., concurs in part and dissents in part.

Conn, J.

I concur in the majority opinion which holds that the earnest money deposited with the agent in two installments, in the total amount of $250, was authorized by the contract, and, in legal effect was payment to the sellers, defendants herein. It is my opinion that the further payment to the broker of “closing money,” so referred to in the amount of $250, was made at the plaintiffs’ risk at the time it was made, for the reason that such payment to the broker, a special agent, was not contemplated by the contract and, therefore, in legal effect, was not a payment to the defendants. I shall state my reasons as briefly as possible.

It is a general rule that where one deals with an agent, he is bound to ascertain the extent of his authority and he has no right to assume that the authority of such agent is unlimited. This principle has wide application in the law of agency, and is strictly applied where one deals with a special agent.

In the instant case, the sale and.purchase contract consists of a printed form, presumably supplied by the real estate broker. Pursuant to its terms, the purchasers, plaintiffs herein, agreed to pay $9,900 for the real estate of the owners, defendants herein, as follows: $25 “to apply on purchase price” and “purchasers further agree to pay in cash the additional sum of $225” upon acceptance by the owners, the payments being referred to in the contract as “earnest money.” The contract provided also that these payments to the broker “shall be applied to the purchase price. ’ ’

The contract provided further that “balance of purchase price to be paid as follows: $250 on closing. Balance by G. I. loan for $9,400.”

By reason of the express terms of the contract, it is apparent that the earnest money in the amount of $250 deposited with the agent, as expressly provided for in the contract, together with the amount of the G. I. loan of $9,400, did not equal the purchase price, and that a further cash payment, should be made by plaintiffs. This further payment was provided for in the contract in language somewhat informal but expressive of the intention of the parties that it should be made at the time of closing the sale and purchase of the property.

Notwithstanding that the broker is a special agent in the instant case, and bound by the terms of a written contract between his principals and prospective purchasers, the majority opinion holds that the plaintiffs could, on the theory of apparent authority, make further payment to the broker, contrary to the clear intention of the parties as expressed on the face of the contract.

If the doctrine, of apparent or implied authority were applicable to the situation presented on the record here, it seems to follow that the plaintiffs without peril could have made payment to the broker of any other amount, even to the extent of the remainder of the purchase money, and thereupon stand on the claim that such payment was payment to the principal, and demand relief accordingly. In my opinion, the doctrine of apparent authority can have no application in the instant case, as the rights and duties of the parties and the broker had been reduced to writing.

However, even if the plaintiffs had not been parties to the contract, which expressly conferred specific authority on the broker, they were bound to ascertain whether or not the broker was authorized to receive payment of purchase money for and on behalf of the defendants. The rule is stated in 2 Ohio Jurisprudence (2d), 85, Section 49, as follows:

“One who deals with a known agent should not blindly trust the agent’s statements as to the extent of his powers, but should use reasonable diligence and prudence to ascertain whether the agent acts within the scope of his authority. He must act in good faith, respecting every restriction upon the agent’s authority of which he may have, or should have, notice. The law indulges in no bare presumption of agency, and an agency can not be established merely by declarations of the agent.”

The record discloses that there was a telephone conversation between the buyers and the sellers relative to the payment of “some closing money.” There is a conflict as to the nature of this conversation, but it does appear that defendants did not authorize plaintiffs to make further payments to the agent. In any event,. the defendants would hardly be estopped to challenge the authority of the broker to receive further payments under the circumstances, nor would the express terms of the contract be altered or modified by this procedure.

Briefly stated, my conclusion is that in the light of the contract, the payment to the broker of earnest money, as stipulated therein, was payment to the defendants for which plaintiffs are entitled to reimbursement. No further payments to the broker were provided for in the contract and it follows that the subsequent payment of $250 made by plaintiffs to tbe broker was made at plaintiffs’ peril and, not being within the contract, was not a payment to the defendants. In my opinion, the judgment of the trial court should be reversed and a new trial ordered.

       Although not disclosed in the record, the broker became insolvent.


author: Hunsicker, J.

text:
    In re Estate of Bersin: Bersin, Appellant, v. Bersin, Exr., Appellee.
    (No. 253
    Decided January 5, 1955.)

      Messrs. Merkel, Campbell, Dill & Clarke, for appellant.

      Mr. William A. Vidmar, for appellee.
   Hunsicker, J.

This is an appeal on questions of law from a judgment of the Probate Court of Medina County, Ohio.

Waldemar Bersin died on March 22, 1953. Anna Bersin is his surviving spouse. Waldemar Bersin had previously been married. His first wife, Lena, died, and he then married Anna in 1949. In 1934, Waldemar Bersin executed his last will and testament. No mention of Anna, the second wife and present surviving spouse, was made in such will. The will was admitted to probate on June 1, 1953, and on June 2, 1953, Walter Bersin was appointed executor under this will. On March 15, 1954 (more than nine months after the appointment of the executor), the “Inventory and Appraisement” was filed, and on that day Anna Bersin filed “Exceptions to the inventory and petition for increase of year’s allowance.”

No citation was issued by the Probate Court to Anna Bersin “to elect whether to take under the will or under Section 2105.06 of the Revised Code.” (Section 2107.39, Revised Code.) No explanation of the will and her “rights under such will, and by law, in the event of a refusal to take under the will” was made to Anna Bersin by the probate judge. (Section 2107. 43, Revised Code.)

On April 9, 1954, a hearing was had on the exceptions, and for the approval of the inventory. At this hearing the year’s allowance to Anna was increased, and the inventory and appraisement was thereupon approved.

On the very day of the hearing for approval of the inventory, and within 25 days of the time when the inventory and appraisement was filed — to wit, April 9, 1954 — Anna Bersin filed her written “Election of Surviving Spouse,” whereby she elected to take under the statute of descent and distribution.

On April 27, 1954, the executor, Walter Bersin, filed a written motion to strike the election of the surviving spouse from the files, for the reason that more than nine months had elapsed between the date of the appointment of the executor and the filing of the election of the surviving spouse, and for the further reason that any election at that time was precluded by the operation of the statute providing for election by the surviving spouse.

The Probate Court granted the motion to strike from the files such election by Anna, and ordered “that the surviving spouse shall take under the terms of the will.”

It is from this judgment that Anna Bersin appeals to this court, saying:

“1. The Probate Court erred in holding that the surviving spouse (appellant herein) shall take under the terms of the will of Waldemar Bersin, deceased.

“2. The Probate Court erred in granting the executor’s motion to strike the widow’s election to take under the law from the files.

“3. The Probate Court erred in requiring the widow to elect prior to the time an inventory and appraisal was filed in said estate.

“4. The Probate Court erred in failing to issue a citation to the surviving spouse to elect whether to take under the will or under the law.

“5. Other errors apparent on the face of the record, to the manifest prejudice of this appellant.”

The questions raised by this appeal involve the statute on “Election by surviving spouse,” and various related sections; to wit, Section 2107,39, Revised Code, Section 2107.41, Revised Code, Section 2107.43, Revised Code, and Section 2115.02, Revised Code. These may be stated as follows:

1. Is a surviving spouse required to elect, where no mention of such spouse is made in the will, and where such will was executed prior to the marriage of the deceased to this surviving spouse?

2. Can a surviving spouse exercise his or her right of election after the period of nine months from the appointment of the executor?

3. Is a surviving spouse required to make an election before the inventory and appraisement is filed, when such inventory and appraisement is filed more than nine months after the appointment of the executor?

The marriage of Waldemar Bersin to Anna after the execution of this will did not act as a revocation of the will, since a subsequent marriage, in the absence of a statute on the subject, does not constitute a revocation of a will made by a testator prior to the marriage. Mundy’s Exrs. v. Mundy, 15 C. C., 155, 8 C. D., 44; 57 American Jurisprudence, Wills, Section 526 et seq.

Section 2107.39, Revised Code (former Section 10504-55, General Code), in its pertinent part, now reads as follows:

‘ ‘ After the probate of a will and filing of the inventory, appraisement, and schedule of debts, the Probate Court on the motion of the executor or administrator, or on its own motion, forthwith shall issue a citation to the surviving spouse, if any be living at the time of the issuance of such citation, to elect whether to take under the will or under Section 2105.06 of the Revised Code. If such spouse elects to take under such section, such spouse shall take not to exceed one half of the net estate and unless the will shall expressly provide that in case of such election there shall be no acceleration of remainder or other interests bequeathed or devised by the will, the balance of the net estate shall be disposed of as though such spouse had predeceased the testator. The election shall be made within one month after service of the citation to elect, or if no citation is issued such election shall be made within nine months after the appointment of the executor or administrator. On a motion filed before the expiration of such nine months and for good cause shown, the court may allow further time for the making of the election. The election shall be entered on the journal of the court.” (Emphasis ours.)

Section 2107.41, Revised Code (former Section 10504-60, General Code), says, in the pertinent part, as follows:

“If the surviving spouse dies before probate of the will, or, having survived such probate, thereafter either fails to make the election provided by Section 2107.39 of the Revised Code or dies before the expiration of the time set forth by such section without having made such election, such spouse shall be conclusively presumed to have elected to take under the will and such spouse and the heirs, devisees, and legatees of such spouse who dies either before or after probate of the will without having elected, and those claiming through or under them shall be bound thereby, and persons may deal with the property of the decedent accordingly * * *.” (Emphasis ours.)

To make an election, then, under Section 2107.39, Revised Code, required either some positive act by the surviving spouse, Anna, indicating her intention, or the lapse of time under the conditions set out in this statute. It must be remembered that Anna Bersin could have made an application to extend the nine-months period, but that was not done in this case.

If Section 2107.39, Revised Code, together with Section 2107.41, Revised Code, establishes a limitation on her right of action, then Anna Bersin has, by her failure to indicate that she wished to take under Section 2105.06, Revised Code, foreclosed her right to share in her deceased husband’s estate. If there can be no election beyond nine months from the date of appointment of the executor herein, then Anna Bersin was compelled (unless she asked for an extension of time), within the time limit set out, to elect to take something or nothing; for it must be remembered that by Section 2103.02, Revised Code (former Section 10502-1, General Code), the dower interest of a spouse “shall terminate upon the death of the consort except” to an extent not applicable herein.

In cases where the election statutes are discussed— such as, In re Estate of Knofler, 143 Ohio St., 294, 55 N. E. (2d), 262; Raleigh et al., Admrs., v. Raleigh, 153 Ohio St., 160, 91 N. E. (2d), 241; Miller v. Miller, Admr., 129 Ohio St., 230, 194 N. E., 450 (decided under a former statute); and Colored Industrial School v. Bates, Admr., 90 Ohio St., 288, 107 N. E., 770, and the many cases cited therein — there was always a choice between one of two valuable rights.

We also have been privileged to read the excellent article by Robert C. Bensing, of Western Reserve University School of Law, entitled “Election Rights of a Surviving Spouse in Ohio,” and the splendid brochure prepared by W. R. Kinney, of The Land Title Guarantee and Trust Company of Cleveland. To both of these authors we are indebted for some of the ideas expressed herein.

According to Webster’s New International Dictionary (Second Ed.), a meaning of the word “elect” is “select,” and, by the same dictionary, synonyms for the word “take” are “receive” and “accept.”

If the statutes under question are to be considered statutes of limitations, then Anna Bersin cannot “select,” for, by the lapse of time, she can “receive” or “accept” nothing.

In the case of Mellinger v. Mellinger, 73 Ohio St., 221, 76 N. E., 615, at p. 229, the Supreme Court, while discussing a widow’s election rights, said: “Election necessarily involves choice, and intelligent choice involves a knowledge both of the facts and the law applicable to the subject matter, with reference to which a choice is to be made.”

When we remember that, from time immemorial, a widow has been one of those favored by the law, we cannot say that, in-a situation such as we find herein, Anna Bersin is forever barred from securing a share in her deceased husband’s estate.

We also recognize the conclusions reached on the subject of a limitation of a right of action being created by election statutes as found in other jurisdictions: In re Bornstein’s Estate, 199 Misc., 1043, 101 N. Y. S. (2d), 747; Estate of Stitzer, 103 Colo., 529, 87 P. (2d), 745, 120 A. L. R., 1266; Billiter v. Parriott, 128 Neb., 238, 258 N. W., 395; and Bish v. Bish, 181 Md., 621, 31 A. (2d), 348; but in each of those cases there was a choice between one of two valuable rights, and not a complete denial to the relict of any right in the deceased spouse’s estate.

Two other sections are of interest in this case, to wit:

Section 2107.43, Revised Code, which reads as follows:

“Whether or not a citation is issued, the election of a surviving spouse under Section 2107.39 of the Revised Code shall be made in person before the probate judge, or a deputy clerk who has been appointed to act as a referee under the provisions of Section 2315.37 of the Revised Code, except as provided in Sections 2107.44 and 2107.45 of the Revised Code.
“When the election is made in person before such judge or referee, the judge or referee shall explain the will, the rights under such will, and by law, in the event of a refusal to take under the will.”

Section 2115.02, Revised Code (former Section 10509-41, General Code), which in its pertinent part reads as follows:

“Within one month after the date of his appointment, unless the Probate Court grants an extension of time for good cause shown, every executor or administrator shall make and return on oath into court a true inventory of the real estate of the deceased located in Ohio and the chattels, moneys, rights, and credits of the deceased which are to be administered and which have come to his possession or knowledge.” (Emphasis ours.)

The Probate Code also provides a time and method for a hearing on the inventory: Section 2115.16, Revised Code (former Section 10509-59, General Code).

All of these statutes mentioned above must be considered when we examine the instant case. It is apparent that there is an ambiguity within Section 2107. 39, Revised Code, for in the first sentence it says in effect that the election of the surviving spouse shall be after the filing of the inventory, appraisement and schedule of debts (which, according to Section 2115.02, Revised Code, must be filed within one month after the appointment of the executor, unless the Probate Court grants an extension of time); whereas in the body of the section it places a time limit of nine months after the appointment of the executor.

Is it possible to know what choice a surviving spouse should make, if the executor fails to comply with the plain mandate of the law with respect to the filing of the inventory and appraisement?

We think that the plain intendment of this section is that the election of the surviving spouse shall be made after the filing of the inventory and appraisement, at which time the explanation by the probate judge as to her rights, under the will and under the law, as required by Section 2107.43, Revised Code, can be made to such spouse.

Obviously, the purpose of fixing time limits in these election statutes, is for the purpose of expediting the closing of estates and fixing the rights of those persons lawfully entitled to inherit the estate, thereby making it possible also for third persons to deal safely (respecting the assets of the estate) with those who inherit such estate. It was undoubtedly for this reason that the other section, set out above — to wit, Section 2107.41, Revised Code — was enacted. Certainly we cannot assume that all of these provisions of the law were designed to injure the surviving spouse; on the contrary, we must assume that these many provisions of the law were in a large measure for the benefit of the surviving spouse; and, in those cases where the rights of no other person are impaired, they should be construed so as to effect the plain intendment of the Legislature.

When, therefore, Section 2107.41, Revised Code, says that, if no election is made within nine months, “such spouse shall be conclusively presumed to have elected to take under the will,” it means that if the surviving spouse fails to elect within time, third persons may rely upon the statutory presumption that the surviving spouse has elected to take under the will, and that, having relied upon such presumption, the presumption as to them cannot be rebutted.

The “conclusive presumption” set out in the statute does not, under the circumstances of this case, operate to bar the surviving spouse from making her election after nine months from the appointment of the executor.

We therefore determine, in this case, that, since the estate was yet to be administered, and the rights of third persons had not intervened prior to the election of the surviving spouse, Anna Bersin, and since the provisions of the Probate Code with respect to the filing of the inventory, appraisement and schedule of debts, the issuance of a citation to elect and the election in person by the surviving spouse, had not been complied with, it was prejudicial error for the trial court to strike from the files the written election of such spouse, made at the time the inventory was approved.

The judgment herein is reversed, and the cause is remanded to the Probate Court with instructions to accept and approve the election of the surviving spouse heretofore stricken from the files.

Judgment reversed and cause remanded.

Doyle, P. J., and Stevens, J., concur.


text:
    Phipps, Appellant, v. Redick et al., Appellees.
    (No. 5091
    Decided October 1, 1954.)

      Mr. John 8. Mitchell, for appellant.

      Mr. Harold M. Palmer, for appellee Floyd C. Redick.

      Mr. C. William O’Neill, attorney general, Mr. Paul Tague, Jr., and Mr. John M. Tobin, for appellee Industrial Commission of Ohio.
   Miller, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court granted in favor of the defendants. The action was one for damages for injuries received by Kyle Phipps, the plaintiff, appellant herein, while acting within the scope of his employment as a carpenter, engaged in building a house- for the defendant, appellee herein, Floyd C. Redick, which house was to be occupied by him as a private residence. More than three persons were employed in the construction; hence, the only question presented is whether Redick is amenable to the provisions of the Workmen’s Compensation Act. The answer to this question depends upon the nature of the employment in which plaintiff was engaged at the time of his injury. Under the terms of the act the employment must be regular and not casual before the employer becomes amenable to its provisions. The term “employee” as used in the act is defined in Section 4123.01, Revised Code, as follows:

“Every person in the service of any person, firm, or private corporation, including any public service corporation, employing three or more workmen or operatives regularly in the same business or in or about the same establishment under any contract of hire, express or implied, oral or written, including aliens and minors, but not including any person whose employment is but casual and not in the usual course of trade, business, profession, or occupation of his employer. ’ ’

The term “employer” is defined in the same section as follows:

“Every person, firm, and private corporation, including any public service corporation, that has in service three or more workmen or operatives regularly in the same business or in or about the same establishment under any contract of hire, express or implied, oral or written.”

The record discloses that Redick had a regular salaried job as an employee of the Marble Cliff Quarries Company where he worked as an engineer. The house being built was to be used as his own home and was not in any way connected with his salaried position. The terms, regular employee, and, usual course of business, are clearly defined in the case of State, ex rel. Bettman, Atty. Genl., v. Christen, 128 Ohio St., 56, 190 N. E., 233, paragraphs two and three of the syllabus:

“Workmen are regular employees, within the purview of Sections 1465-60 and 1465-61, General Code, so long as they are hired to do work in the usual course of the trade, business, profession or occupation of the employer.
“In order that a person’s employment shall be deemed to be in the usual course of the trade, business, profession or occupation of the employer, it must be employment for work of the kind required in the business of the employer and it must be in conformity to the established scheme or system of the business. Such scheme or system comprehends the nature of the enterprise, its organization, its personnel requirements and its methods of operation. The time foi which such employment has continued is not controlling. ”

See, also, Reese v. Industrial Commission, 55 Ohio App., 76, 8 N. E. (2d), 567; Fulmer v. Richardson, 26 Ohio Law Abs., 163; Smith v. Brockamp, 81 Ohio App., 381, 77 N. E. (2d), 727. In the latter case the court practically covered the facts in our case by way of illustration and with which we are in accord, as follows, at page 386:

“By way of illustration, if a lawyer, whose office is not maintained in his residence, should employ three or more workmen to build an addition thereto, the employees so engaged would not be included in the coverage of the act, but, if on the other hand, a physician, who uses his home for the purpose of practicing his profession as well as a residence, employed three or more workmen to build an addition thereto, which would increase the facilities of his practice, then such employees would be included in coverage.”

The plaintiff cites cases from many foreign jurisdictions which can be of no assistance in light of the pronouncements of our own courts.

We must agree with the conclusion of the trial court that the construction of this home by Redick was in no manner connected with his usual course of trade, business or profession; and that, therefore, he is not liable to the plaintiff under the provisions of the act.

The judgment is affirmed.

Judgment affirmed.

Wiseman, P. J., and Hornbeck, J., concur.


author: Phillips, J.

text:
    In re Estate of Miller.
    (No. 713
    Decided May 24, 1954.)

      Messrs. Metzger, McCorkhill £ Metzger, Mr. Henry L. Reese and Mr. James D. Primm, Jr., for appellee.

      Messrs. Goubeaux £ Goubeaux, for appellant.
   Phillips, J.

Russell I. Miller, the decedent, was killed on February 15, 1953, in Columbiana County in a collision between an automobile owned by a Mrs. Blackburn and driven by decedent and a truck owned by Subler Transfer, Inc., and driven by one of its agents.

The president of the Subler Transfer, Inc., called petitioner in this opinion, was advised of such collision on February 15, 1953.

Thereafter counsel for Mrs. Blackburn advised petitioner’s president that decedent’s widow was administratrix of decedent’s estate.

On June 16, 1953, Mr. James Primm, Jr., the administrator’s attorney, advised petitioner to address correspondence with reference to decedent’s estate to him, but did not advise him of the name of the administrator who was appointed by the Probate Court of Columbiana County, Ohio, on February 25, 1953.

Petitioner was informed of the appointment of Clyde Miller as administrator on September 30, 1953, and upon receipt of that information filed a petition in the Court of Probate of Columbiana County for authority to present its claim after the expiration of four months “as provided in General Code, 10509-134, Revised [Code] Section 2117.07,” assigning as its reason that “petitioner did not have actual notice of the appointment of Clyde Miller as administrator in sufficient time to present its claim within the period prescribed by law.”

The Judge of the Court of Probate dismissed petitioner’s petition, and from that order petitioner appeals to this court on questions of law.

While counsel for petitioner have assigned no formal assignments of error upon which they rely to secure a reversal of the judgment of the trial court, we gather from their oral argument and brief that they contend that counsel for the administrator of decedent ’s estate was guilty of a wrongful act in failing to advise petitioner of the name of the administrator of decedent’s estate duly appointed by the Court of Probate of Columbiana County; and because the trial judge erred to its prejudice in refusing its counsel leave to amend its petition to comply with the proof by including “wrongful act or statement on the part of his (administrator’s) attorney.”

We are impressed by the reasoning of counsel for the administrator by brief:

“After he (petitioner’s president) presented the Subler claim to Ruberta Miller, Mr. Primm (counsel for Ruberta Miller) wrote Mr. Subler that he was the attorney for the Russell I. Miller estate. This letter was dated June 16, 1953, and as the appointment of Clyde Miller as administrator was on February 25, 1953, this gave Mr. Subler nine days in which he could have called or written Mr. Primm, to say nothing of the entire four months period that he could have phoned or written the Probate Court of Columbiana County. He did absolutely nothing with reference to Mr. Primm’s letter, although Mr. Primm ended the letter by saying, ‘ 1 would appreciate your cooperation very much.’ ”

In summarizing the entire evidence the judge of the Probate Court said:

“The uncontradicted evidence in this case is that the plaintiff had knowledge of the death of Russell I. Miller within four hours and in addition to that he had knowledge that the attorney for the estate was James Primm, Jr., as early as June 17th, 1953, or some eight or nine days before the expiration of the four month’s period. The fact that he relied upon a stranger to the case is his own hard luck. He had no right to rely upon Lozier Caplan because no where does it appear that Lozier Caplan had any privity. It would have been a simple matter to have either engaged an attorney or called this court for the actual person appointed. However, he chose to rely upon a stranger, therefore, he must abide by the consequences of his act. As late as June 17th, 1953, the date upon which he received the letter from James Primm, Jr., he could have called through, found out the exact connection and then to a direct question had Mr. Primm not informed him or misinformed him as to who the administrator was then I think he would have been in court. As it stands this petition will be denied and exceptions are permitted, and, gentlemen, you may try it out in the Court of Appeals.”

Counsel for the administrator had no duty to advise petitioner of the name of the administrator of decedent’s estate, although he wrote the petitioner the same day petitioner communicated with decedent’s widow. Likewise he was under no duty to advise petitioner of its error in presenting its claim to decedent’s widow instead of to Clyde Miller, administrator of decedent’s estate. Petitioner is not entitled to a reversal of the judgment of the trial court on that ground.

In the case of Prudential Ins. Co. of America v. Joyce Building Realty Co., 143 Ohio St., 564, 56 N. E. (2d), 168, the Supreme Court said, in the syllabus:

“1. Sections 10509-112 and 10509-134, General Code (114 Ohio Laws, 320), must be construed together and are statutes of limitation (or nonclaim statutes) which bar creditors’ claims unless presented to an executor or administrator within four months after the date of appointment. (Paragraphs one and two of the syllabus in the ease of Beach, Recr., v. Mizner, Exr., 131 Ohio St., 481, approved and followed.)

“2. The requirements of Section 10509-112, General Code, that ‘creditors shall present their claims, whether due or not due, to the executor or administrator within four months after the date of his appointment’ are mandatory and may not be waived by him.” In the case of In re Estate of Marrs, 158 Ohio St., 95, 107 N. E. (2d), 148, the Supreme Court said:

“1. One who has a claim against a decedent’s estate and fails to present the same in writing to the executor or administrator within four months of his appointment, as required by Section 10509-112, General Code, may, after the expiration of such time, under Section 10509-134, General Code, petition the Probate Court for leave to do so and where upon hearing the court finds ‘that the claimant did not have actual notice of the decedent’s death or of the appointment of the executor or administrator in sufficient time to present his claim within the time prescribed by law' * * * then the court may authorize such claimant to present his claim to the executor or administrator after the expiration of such period.’

“2. The disjunctive conjunction, ‘or,’ is used in Section 10509-134, General Code, in its ordinary sense and meaning, and where upon hearing of the petition for authority to file a belated claim the evidence discloses that claimant actually knew of the decedent’s death and his place of residence shortly after the death occurred and that in the exercise, of reasonable diligence the claimant could have learned of the appointment of an administrator and thereafter had a fair opportunity to present his claim within the four months prescribed by Section 10509-112, General Code, the court is chargeable with no error or abuse of discretion in denying claimant authority to present such claim. ’ ’

In that case the Supreme Court recognized that the trial court could exercise its discretion, which discretion we can not say in this case was abused.

With reference to the contention that the trial judge erred to petitioner’s prejudice in denying the right to amend its petition to comply with the proof it is observed that in denying petitioner’s motion for such amendment the trial judge stated that if petitioner desired to amend its petition generally, thus giving the administrator the opportunity of answering fully, the trial judge would grant such leave, of which counsel for petitioner did not take advantage.

The trial judge did not err to petitioner’s prejudice in overruling its motion to amend its petition to conform with the proof.

The judgment of the Court of Probate is affirmed.

Judgment affirmed.

Griffith, P. J., and Nichols, J., concur.