author: Pollock, J..

text:
    WHEN AN INCOMPETENT WITNESS MAY TESTIFY IN HIS OWN BEHALF.
    Court of Appeals for Portage County.
    In the Matter of the Estate of Mary S. Alger, Deceased.
    Decided, October 1, 1918.

      Evidence — ExectUor Made a Competent Witness for All Purposes — By Being Called by an Exceptor for a Single Purpose-^-If Testimony Against Interest is Worthy of Credit, that which is Favorable to the Witness Must Also be Received.

    If a party in an action, who is prevented from testifying by reason of the provision of Section 11495 of the General Code, is examined as a witness on certain issues in the case by the adverse party under Section 11497, he then becomes a competent witness in the ease, and may testify in his own behalf in regard to all the issues in the case.

      H. B. Loomis, for exceptor.

      8. F. Hanselman and A. 8. Cole, for executor.
   Pollock, J..

Donald E. Alger was appointed by tbe probate court of this county executor of the will of Mary S. Alger, deceased. After he had filed his inventory and appraisement, W. B. Alger, an heir of the estate and interested in the distribution of its assets, filed exceptions to the inventory and appraisement of the executor. The exceptions charged, in substance, that the 'executor had failed to inventory and appraise a certain indebtedness of his own to the estate. The 'exceptor asked that the court require an inventory and appraisement of that indebtedness. After the exceptions were heard in the probate court, an appeal was taken to the court of common pleas, and it was again heard upon the testimony, resulting in a judgment against the exceptor.

This action in error is prosecuted to reverse that judgment on two grounds; first, for error in permitting the executor to testify in his own behalf; and, second, that the judgment of the court below is against the weight of the evidence.

We will take these claimed errors in their order. The executor was first called by the exceptor and examined as a witness. He testified on that examination that Mrs. Alger was his mother, and that for many years prior to her death she was living with him; that during that time she had a small tract of real estate which he rented and collected the rent. He says that frequently he retained the rent money, and that she gave him other money; that each time he would give his note therefor, and that after the first time he gave her his note, when he retained any of the rent money or received other money from her it would be added to the amount of the note and a new note given for the total amount. This was continued until about two years prior to her death, when she held his note for about seven hundred dollars. This was as far as the examination on the part of the exceptor went. After the introduction of some other testimony, the exceptor rested. .

During the time the executor was offering his testimony he offered himself as a witness, and over the objection of the exceptor was permitted to testify that about two years prior to the time of his mother’s death he had a conversation with her in which he claimed that on account of his father, in his lifetime, having collected money which was due witness, this note should be surrendered to him. He testifies that his mother agreed-to this arrangement and gave him the note, intending to surrender it and release him from the payment of the amount due thereon, and the note was destroyed.

It is now urged that the court below committed error in permitting the executor to testify in his own behalf.

In this hearing the executor’s interest was adverse to that of his 'estate, and for that reason he was an adverse party under the statute.

Section 11496 of the General Code reads as follows, as far as the question now before us is concerned:

“A party shall not testify when the adverse party is the guardian or trustee of either a deaf and dumb or an insane person, or of a child or a deceased person, or is an executor or administrator, or claims or defends as heir, grantee, assignee, devisee, or legatee of a deceased person. ’ ’

But Section 11497 of the General Code provides:

1 ‘At the instance of the adverse party, a party may be examined as if under cross-examination, either orally, or by deposition, like any other witness. * * “ The party calling for such examination shall not thereby be concluded but may rebut it by counter-testimony. ’ ’

This section gave the exceptor the right to call the executor and examine him as a witness. The executor is the only witness that testifies to this indebtedness or to his release from paying it, so that his testimony was material to both parties in the action.

The Supreme Court of this state had a somewhat similar question before them in the case of Legg v. Drake, 1 O. S., 248. In the third paragraph of the syllabus, they say:

“Where a party to an action is called upon and introduced as a witness on the trial, by the adverse party, under the act of March, 1850, to improve the law of evidence, the objection to his competency is waived, and he becomes competent as a witness on the trial for all purposes. ’ ’ i

This act of March, 1850, was, so far as we are able to determine, the first innovation in Ohio on the common law rule that a party in interest in an action could not testify, and in this ease they hold that while the party was an incompetent witness in his own behalf, yet by thé opposite party calling him, he waived his ineompetency, and it was competent to examine him on any issue in the case.

Again, the Supreme Court said:

“A waiver of objection to the competency of a witness so as to allow his deposition to be taken in a case is a waiver during the whole progress of the cause, and the objection can not be insisted on where the witness is called to give a second deposition in the same case.” Chateau et al v. Thompson et al, 3 O. S., 424.

These cases recognize the principle that a party can not give credit to the opposite party by calling him as a witness, and then afterwards objecting to his full examination in the ease.

When we look to the decisions of the various courts outside of this state, under similar statutes, they seem to be universally in favor of the proposition that where a witness is incompetent on his own behalf, but may be called by the adverse party, and the adverse party calls such a witness and examines him, he then becomes competent for all issues as a witness in the ease.

“If a party puts an incompetent witness on the stand,-he makes him competent in the cause for either party.
“Under the Act of March 27th, 1865, allowing a party to call his adversary as a witness, the party if thus called is made a witness for all purposes on his own side.” Seip v. Storch, 52 Pa. St., 210.

Sutherland, J., in the opinion in the case of Fulton Bank v. Stafford, Second Wendell, 485, said:

‘ ‘ If he is a competent witness to the jury for any purpose, he is so for all purposes, and the party who originally called him and availed himself of his testimony, can not subsequently object to him on the ground of interest any more than he can impeach his general character. He is estopped from denying his competency as well as his credibility. ’ ’

The state of Colorado has a statute preventing a party from testifying, where the adverse party is deceased, unless called by the opposite party. In the case of Warren v. Adams, found in the 36th Pac., 604, the Supreme Court of that state held that if the plaintiff was examined by the defendant' on the question of his insanity, which he alleges as the cause of his delay in bringing suit, that the plaintiff might be cross-examined on his own behalf as to the transaction with defendant’s ancestor which is the controlling question in this case.

To the same effect are the following cases: American Savings Bank v. Harrington’s Estate, 52 N. W., 376; Boyd v. Conchohocken Worsted Mills, 24 Atlantic, 287; Thomas v. Irvin, 16 S. W., 1048; Young v. Montgomery, 67 N. E., 684.

In the latter case, the Supreme Court of Indiana said, in construing their statute, that:

“While Burns’ Rev. St. 1901, § 507, provides that in suits by or against heirs or devisees neither party shall be competent witness as to any matter which occurred prior to the death of the ancestor, yet where a party exercises the rights given him by Section 51Q to call and examine his adversary as a witness, he thereby renders him a competent witness for all purposes. ’ ’

The language of the statute which is before the court in the other jurisdictions referred to is somewhat different from our section. The statute under consideration in these cases authorized the calling of the adverse party and his examination as other witnesses, while Section 11467 of tbe General Code provides that at the instance of the adverse party, a party may be examined as if under cross-examination — that is, the party in asking the questions in his examination need not confine his questions as he is required to do ordinarily on direct examination, but may ask them as is permitted on cross-examination; but it will be noticed that this statute in substance is not any different from the statutes in other states which have been referred to in these several opinions cited. It only gives a different latitude as to the manner of the examination, but in nowise curtails the subject-matter of the examination. The executor in this ease could not testify to transactions which occurred between him and his testate unless permitted to do so by the action of the exceptor, which evidence was competent if the exceptor chose to waive the objection to his testifying by reason of the decease of the other party to the transaction, or to make it competent by calling upon the plaintiff to testify. It would ■be manifestly unfair to permit the exceptor, trusting to the integrity of the executor, to call him and require him to testify to facts concerning the transaction with the deceased which were favorable to the exceptor, and then prevent him from testifying to the entire transaction. A party should not have a right to use the opposite party as a witness so far as his testimony might be favorable to him, and then prevent the witness testifying to matters that would be unfavorable.

We think there was no error in permitting the executor to testify in his own behalf.

Now, as to the judgment being against the weight of the evidence. We do not intend to discuss the testimony. The executor testified to his indebtedness to his mother, and to the surrender of the note representing that indebtedness for the reason stated by him. This is practically all of the testimony in this case as to his indebtedness to the estate or to the release of that indebtedness.

It would be manifestly unfair for the court to give credit to the testimony of this witness when he testified against his own interest, and then say that when he testified in favor of himself, his testimony was not worthy of credit.

There are no facts in the record tending to impeach his testimony when he says the note was given to him under the circumstances stated.

The judgment of the court below is affirmed.

Metcalfe, J., and Farr, J., concur.


source: Caselaw Access Project

author: Allread, J.

license: Public Domain

text:
    NATURE OF TITLE TAKEN UNDER A DEVISE.
    Court of Appeals for Fayette County.
    Charles Persinger v. Willard Britton et al.
    Decided, November 30, 1918.

      Devise — Will Not be Out Down by Subsequent Clause, When — Limitation on Secondary ‘Contingent Estate — Torrens Registration Act Valid as to Persons in Being Who are Capable of and do Appear and Defend.

    1. Where an estate in fee simple is devised in clear and unequivocal ■terms, such estate will not be cut down or limited by a subsequent clause less conclusive.
    2. Where the primary devise in fee simple takes effect upon such devisee arriving at majority and the secondary contingent estate is devised to the children of the first devisee upon his death, the latter estate will be limited to the contingency of the death of the first devisee during his minority and before >the fee simple devise becomes effective.

      Sidy & Sanderson, for Charles Persinger.

      John Logan, for Pha and Jonnie Davis.
   Allread, J.

This action originated in the probate court and was one to register and quiet title, under the provisions of the land registration act. The probate court dismissed the petition for registration as to the real estate in controversy upon the ground that there was an outstanding title in favor of Pha and Jonnie Davis, daughter of John A. Davis, a devisee under the will of Benjamin R. Davis.

From this judgment an appeal was taken by the plaintiff to this court.

The case involves a construction of the following items of the will of Benjamin R. Davis:

“Item 3. I further will and devise one half of said farm to my grandson John Davis (son of my late son James Davis) to be taken possession of by him upon his becoming of the age of majority and then to be held by him and his heirs, in fee simple, upon condition that he pay to his sister Margaret Davis (my granddaughter) the full value in money or property as she may desire, of one half of the share of said farm hereby devised to him.
“Item 6. In case my said grandson John Davis should die before becoming of age or without children, then the half of said farm devised to him shall go to the children of my said son Nelson Davis, to be taken possession of at the same time they get possession of their half of said farm, subject however, to the same condition in regard to the payment to said Margaret as I have hereinbefore stated in regard to said John, and in ease said John shall die leaving children then it is my will that his male children inherit his portion of said farm, in preference to his female children.”

The will was executed February 2d, 1862, and was probated February 24th, 1862. John Davis mentioned in items 3 and 6 at the time of the execution and probation of the will was four years of age. He survived the testator and is still living. His estate by successive conveyance has been transferred to the plaintiff Charlés Persinger. Pha and Jonnie Davis claim an interest in the estate under item 6 as the only children and representatives of their father John Davis,

Benjamin R. Davis by his will disposed of his 500 acre farm. The general scheme of disposition was that his surviving son Nelson was to have possession and control of the entire farm and support the widow and unmarried daughters until the youngest of his own children and John, the minor son of James, should become of the age of twenty-one years. Subject to the provision for the support of the widow and daughters, one-half the farm was to go to the children of Nelson upon the arrival of age of the youngest. There was no limitation upon the title taken by the children of Nelson after majority.

The other half of the farm was disposed of under items 4 and 6 of the will.

The most significant fact expressed in items 3 and 6 of the ■ will is that John Davis, upon becoming of the age of majority, was to hold the estate devised in fee simple and upon condition that he pay his sister Margaret the full value in money or property of her one-half interest.

No proper construction of the will can be made without a consideration of these as the central provisions of the devise to John. ,

The testator evidently contemplated that it was probable that his death would occur before John and the other grandchildren would arrive at the age of majority. He evidently did not intend that the grandchild John should take an absolute estate during his minority and, with the possibility in view that John might die during minority .and without a representative, made provision for that contingency by creating a contingent remainder or executory devise in favor of the children of Nelson. So far we think the intention of the testator is easily ascertainable. The real difficulty arises in the concluding sentence of item 6 "and in case said John shall die leaving children, then it is my will that his male children inherit his portion of said farm in preference to his female children.”

We approach the construction of this item under a well settled rule of construction, stated in the opinion in the case of Collins v. Collins, 40 O. S., 364, quoted from the case of Thornhill v. Mull, 2 Clark & Finn, 22:

"It is a rule of the courts, in construing written instruments, that when an interest is given or an estate conveyed in one clause of the instrument in clear and decisive terms, such interest or estate can not be taken away or cut down by raising a doubt upon the extent and meaning and application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words-of the clause giving the interest or estate.”

The testator here clearly intended to convey a fee simple estate to John upon his arriving at the age of twenty-one years. The estate was then given to him and his heirs in fee simple. These are the most comprehensive terms which a testator can use to confer an absolute and unqualified estate. McCrea v. McCrea, 7 App., 351.

Baxter v. Bowyer, 19 O. S., 490; Johnson v. Johnson, 51 O. S., 446, and Robins v. Smith, 72 O. S., 1, involved terms which imported prima facie an absolute estate. They did not involve terms importing clearly and conclusively an intention to grant a fee simple estate in the first taker.

To the comprehensive grant in fee simple is added the effect of the provision requiring John to purchase the half interest of his sister at its full value.

The courts have gone to the extent of holding void a limitation over after a grant of an estate in fee simple. Hull v. Chisholm, 7 App., 346; Tracey v. Blee, 22 C.C.(N.S.), 33; Steuer v. Steuer, 8 C.C.(N.H), 71; Widows Home v. Lippardt, 70 O. S., 261.

It is not necessary to go that far in the present case. The estate devised to John upon his arrival at majority being so • clearly one in fee simple, the concluding clause of item 6 must if possible be harmonized and so construed as not to divest the fee simple estate so granted.

Under the will John was not to have the estate in fee simple until he arrived' at the age of twenty-one. There were two possible contingencies which might happen in the meantime (1) John might die before arriving at majority without children, and (2), John might die before arriving at majority leaving children. The first contingency .was provided for in the contingent devise to the children of Nelson. It is true that the devise to the children of Nelson was contingent upon John’s dying during minority or without issue, but we think under the terms employed in items 3 and 6 together with the general scheme of disposition in the will that the word “or” should be read “and” in harmony with the decision in the ease of Ward v. Barrows, 2 O. S., 242. We think such construction is supported in the present case by a much stronger reason than in the case of Ward v. Barrows, because of the clearly expressed intention in the present will to vest an absolute estate in John upon his arriving at majority.

The other contingency which the testator, contemplated was John’s death before arriving at twenty-one years leaving children, and that contingency was evidently intended to be provided for by the concluding clause of item 6. This construction would harmonize Section 3 and Section 6. It is the only construction which can be given of the latter clause in item 6 which would not be inconsistent with and repugnant to the primary estate granted in item 3. An argument is drawn from the fact that a fee simple estate in John, when he arrives, at majority, would change the course of descent from that indicated in item 6. A grant in fee simple imports the right of the grantee to convey the estate to a stranger or permit it to descend under the statute. This is an incident to a fee simple estate and is implied in the devise in fee simple. Under the construction so given John Davis upon his arriving at the age of twenty-one took an absolute fee simple estate with a right to convey the same, and that the plaintiff, Charles Persinger who acquired the estate of John Davis of mesne conveyances,, is 'entitled to have his'estate quieted and registered under the act.

It is urged that the registry act is unconstitutional because it may be employed to destroy the estate of a person not in being. Whatever might be the 'effect of a deere'e as to a person not in esse, we think the statute is valid as to the parties in being and who are capable of and do appear and defend.

Decree accordingly.


author: Lawrence, J.

text:
    LIABILITY UNDER A POLICY WHERE THE PREMIUM WAS OVERDUE.
    Court of Appeals for Cuyahoga County.
    The Commercial & Accident Association of Cleveland v. Vera L. Bagnell.

    Decided, July 15, 1918.

      Insurance — Provision in a Mutual Benefit Policy for Forfeiture for NonPayment of Premium Within a Specified Time — Waived by Acceptance of Premiums tohich Were Overdue — Policy Not Canceled Ipso Facto by Delinquency — Right of Forfeiture Waived, When.

    4 mutual benefit association is estopped from denying liability under a policy which provides for forfeiture if the premiums are not paid within thirty days after certain specified dates, where on several occasions it accepted payments from the insured from two to twenty days after the prescribed time, and had returned for proper endorsement a check for the last premium, which was sent to the association' by the wife of the insured two days after it became due, and was received in due course and, without further action, was returned for endorsement on the day before the death of the insured.

      Tolies, Hogsett, Ginn <& Morley, for plaintiff in error.

      Gage, Day, Willcin (& Wachner, contra.

      Motion for an order directing the Court of Appeals to certify its record in thig case overruled by the Supreme Court November 26, 1918,

   Lawrence, J.

This is a proceeding in error to obtain a reversal of the judgment of the Court of Common Pleas of Cuyahoga County, Ohio. The parties stand in the reverse order in which they stood in the court below; we will refer to them in the relation in which they stood in the trial court.

There is no dispute- relative to the facts.

At the close of all the evidence, the plaintiff and defendant each moved the trial court for a directed verdict, and the court directed the jury to return a verdict for plaintiff, which was done and judgment was entered therepn. Motion for new trial was overruled, and error is now prosecuted to this court.

The facts necessary to an understanding of the questions raised here are as follows:

One R. A. Bagnell, who was the husband of plaintiff, in the year 1899, became a member of the defendant association and continued such, as claimed by plaintiff, until his death, which occurred on November 19, 1916. The membership contract of Bagnell provided that his assessments should be due quarterly on January 5, April 5, July 5 and October 5, and payable within thirty days thereafter. The contract of insurance, among other things, provided:

“Any member who fails to pay his assessments, or any of them, within thirty (30) days after notice has been duly served upon him by mail, shall forfeit all benefits as a member of the association, and shall no longer be in good standing; providing, however, that any member having forfeited his benefits as above by failing to pay any assessments within thirty (30) days after notice has been served, or sent him by mail, may be restored to all benefits, he being in good health, by paying all arrearages on or before the next regular monthly meeting of the board of directors.
“Any member who shall have forfeited his benefits under or by virtue of his certificate of membership, shall likewise, and at the same time default occurs, and by virtue thereof, forfeit all right to indemnity and benefits of whatsoever character. Should any delinquent member at any time regain his good standing in the association in the manner above provided, his restoration thereto, shall in no wise operate to entitle him or anyone claiming under him to indemnity or benefits ‘on account of any accident, injury or death received or happened while not in good standing.”

Mr. Bagnell paid his quarterly assessments on -or befóte their due dates, except as follows:

• The quarterly assessment due January 5, 1911, and payable August 5, 19.11, was paid and receipted by the defendant association, August 8, 1911. The quarterly assessment due July 5, 1915, and payable August 5, 1915, was paid by check dated August 11, 1915; received and receipted by'the assoeiation, August 13, 1915. The quarterly assessment due April 5, 1916, and payable May 5, 1916, was paid by check dated May 24, 1936; received and receipted by the association, May 25, 1916. The quarterly assessment due July 5, 1916, and payable August 5, 3916, was paid by check dated August 7, 1916, and received and receipted by the association, August 9, 1916.

An attempt was made to pay the quarterly assessment due October 5, 1916, and payable November 5, 1916. Relative thereto, it appears that Mr. Bagnell on November 3, 1916, had his son-in-law, Willard Hall, draw a check for him, payable to his order, in the sum of $8.90, the amount of the assessment about to become payable. Mr. Hall drew the check, which was dated November 4, 1916, and gave it to Mr. Bagnell. 'Concerning this check counsel for defendant in his brief says Mr. Bagnell “laid it to one side saying that he would send it with an insurance premium which was then due. On November 7, Mrs. Bagnell discovered that the check had not been mailed, and mailed it to the association without having it endorsed by Sir. Bagnell. The association received the check on November 9, 1916, and on the same day returned it asking that it be properly endorsed. On November 30, Mr. Hall wrote the association advising that Sir. Bagnell had died on the morning of November 10, 1916, and on Novémber 14, upon receipt of the check so returned for endorsement, Sir. Hall again wrote reciting Sir. Bagnell’s death and enclosed his own check payable to the association for $8.90, which check and letter were received by the association on November 16, and returned by the association on that day with the statement that Sir. Bagnell “was at the time of his death delinquent, thereby forfeiting all benefits of the association.”

It further appears that all prior delinquent payments were accepted in payment of the respective assessments by the defendant association without making any inquiry as to whether Mr. Bagnell was in good health.

The plaintiff claims and contends that the association’s acceptance of the two overdue payments in 3.911 and three overdue payments in 1915 and 1916, without objection and without requiring any evidence of Bagnell ’§ health, constituted a waiver or estoppel of the defendant association’s right to enforce a forfeiture on' account of the default in the prompt payment of the assessment payable November 5, 1916; and that when the association received the check of Willard Hall payable to the order of Bagnell and returned it for proper endorsement, that constituted an acceptance and thereby became and was a payment of the quarterly assessment due October 5, 1916, and payable November 5, 1916; or, if it did not receive same as payment, by its course of conduct relative thereto it showed intention to maintain the contract of insurance in full force and effect and to waive, as it had previously done, any claim it might have had by reason of the failure of Mr. Bagnell to strictly Comply with the terms of the contract.

On behalf of defendant it is claimed and contended, that when Bagnell became delinquent his contract of insurance was ipso facto canceled and his rights to benefits ceased without the necessity for any notice or affirmative act on behalf of the association, and that the continued membership of Bagnell in the association after his former delinquencies, up to the date of his last assessment was because the association, under the provisions of its constitution and by-laws reinstated Bagnell in good standing upon his payments of past due assessments, and this being a fact, and the record showing Bagnell to'have been in ill health at the time the Hall cheek was sent to the association, there could be no reinstatement under the terms of the contract of insurance, and Bagnell forfeited his claim to benefit under the contract.

To this contention of defendant, plaintiff says that Bagnell was never suspended from the association or his contract forfeited, and therefore there could be no reinstatement; and that the acceptance by the association of his delinquent payments was a zvaiver of any right the company might have to forfeit the contract.

To support its claim of forfeiture the defendant cites two Ohio eases: Insurance Company v. Wilson, 70 O. S., 354; Insurance Company v. McMillen, 24 O. S., 67.

We do not think either of these cases are in point, or support defendant’s claim of forfeiture, In the Wilson case the question decided- was that a failure to pay a premium when due, there being no waiver of the provision of forfeiture, would terminate the contract of insurance; furthermore in the Wilson case, after the loss occurred, a check, in payment of a delinquent premium, was sent the insurance company. The question in the MeMillen case turned on the authority of an agent to waive the forfeiture. The policy of insurance in that case specifically declared that “no agent of'the company, except the president and secretary, can exercise such authority,” and in this MeMillen ease the agent who attempted to waive the provision of the contract relative to forfeiture had no such au-‘ thority, expressed or implied.

In the instant case the real controversy is whether the insurer lias waived the forfeiture, or by its course of 'business with the insured has estopped itself from setting up the forfeiture under the contract.

In the Wilson case, supra, the court say:

“As this condition in the policy is made for the protection of the insurer, it could be waived, but there is nothing in this case- which tends to show a waiver -by the insurance company.1 ’

Counsel for defendant say that at the time the former overdue payments were received Bagnell was in good health. This claim seems to be an unsupported assumption rather than a fact, inasmuch as it is no where disclosed -by the record.

We are unable to find from the record that there ever has been a breach of this contract of insurance; the defendant association never exercised the provision as to forfeiture, until the receipt of the second Hall cheek, and we refer to this check as “second” to distinguish it from the unendorsed check the defendant association received and returned for proper endorsement, and we are of the opinion that the purpose of the payments of all over-due assessments by Bagnell was not for reinstatement but for the purpose of complying with his contract of insurance, and were received by the association, not for reinstatement, for the record here discloses he had never been suspended and thereby no reinstatement could take place, but were received by the association for the purpose of discharging the original obligation. In ease of reinstatement some action must be taken. Section 4 of the constitution and by-laws of the association provides that it shall be the duty of the secretary to ‘ ‘ report all delinquencies to the board of directors. ’ ’ This was not done, and it confirms the foregoing statement that these over-due quarterly payments were made by Bagnell and received by the association for the purpose of complying with the terms of the contract of insurance and discharging the original obligation, and the association having accepted overdue assessments for these purposes, it thereby waived its right to a forfeiture, and is now estopped to deny the right of the insured to pay the quarterly assessment, payable November 5, 1916, a few days after the time limit provided by its constitution and by-laws. But it is further claimed that Bagnell at the time was not in good health and ipso facto was suspended. AVith this contention we do not agree; the provisions in the contract of insurance concerning the health' of the insured relates'and applies only to cases where there has been a suspension and thereby a reinstatement became necessary; Bagnell never had been suspended and consequently no reinstatement could take place.

Forfeitures are not favored — they are .odious; the law abhors them; and the record does not disclose any conduct on the part of the defendant association consistent with its present stand— an intention to waive is clearJy shown.

It is claimed that Bagnell was charged with the knowledge that on November 5, 1916, his benefits were automatically forfeited, and that charged with this knowledge he can not now be heard to say that he intended a thing impossible by the terms of his contract. AVith this claim we can not agree. The defendant association on two occasions in the year 1911, once in 1915, and twice in 1916, both of these in 1916 being for two quarterly assessments immediately preceding the assessment in question, by accepting overdue payments had in substance said to the insured, Mr. B’agnell, at least by its conduct had led him to believe, that his contract was in full force and effect and that no forfeiture will hereafter be incurred if you continue to pay your assessments within a reasonable time after they become payable; and because of this conduct we hold the defendant waived its right to declare a forfeiture of this policy by reason of the failure to pay within thirty days from Oc-. tober 5, 1916.

Moreover, as we understand it, the law is to be administered for the purpose of doing exact and equal justice to all in so far as it may be possible, and can it he said that, under all the facts and circumstances disclosed by the record in this case, it is right, just and fair for this court to now say to the defendant association, it is true you have heretofore by your course of dealing with the plaintiff led him to believe you would not insist upon strict compliance with the terms of his contract of insurance, but now that his beneficiary -is about to reap the benefit thereof, you can insist and have a strict interpretation and compliance therewith? In other words, shall this court now do for the defendant association what it did not do and would not do for itself during the life of Bagnell?

There is a great deal of law bearing upon the questions here presented,. and it has been cited in the briefs of counsel, and counsel have very fully and ably presented it in oral argument. We can not tafce the time to review all these authorities; however, those upon which we chiefly rely in arriving at our conclusions and seem most directly in point and sustain our views are the following cases: O’Conner v. Knights & Ladies of Security, reported in 158 Northwestern, 761; Knickerbocker, etc., Insurance Company v. Morton, 96 U. S., 234; Swander v. Insurance Company, 1 C.C.(N.S.), 233; Insurance Company v. Tullidge, 39 O. S., 240.

There 'being no conflict in the evidence, the facts not being controverted, not in dispute, there remained nothing for the trial court to do but apply the law.

We are of the opinion, both upon principle and authority, that the court below did not err in directing the jury at the close of all the testimony to return a verdict for the plaintiff and in entering judgment thereon.

Therefore, the judgment of the court of common pleas will be affirmed.

Grant, J., and Dunlap, J., concur.


author: Farr, J.

text:
    LIABILITY OF SHERIFF FOR FAILURE TO LEVY WRIT OF EXECUTION.
    Court of Appeals for Geauga County.
    The Central Ohio Buggy Co. v. W. W. Cowin et al.
    Decided, September 20, 1918.

      Executions — Deposit of Fees for Service of Foreign Writ — Indorsement —What is a Sufficient — Sheriff’s Failure to Malee Levy Renders Him Liadle on Official Bond, When.

    ■Where a clerk of courts issues a writ of execution in a civil action to another county for service and return by the sheriff of such other county, and indorses on such writ, “Fees on deposit for the service of this writ,” and signs his name thereto', such indorsement is a sufficient compliance in that regard with the requirements of Sections 2882 and 12105 .of the General Code, and a sheriff’s failure to levy an execution in obedience to such writ renders him and his sureties liable to respond in damages for any loss' resulting from such failure.

      J. T. Carey and B. H. Patchin, for plaintiff in error.

      II. O. Bostwiclc, contra.
   Farr, J.

On the 5tli day of November, A. D. 1915, the Central Ohm Buggy Company filed its petition in the Court of Common Pleas of Geauga County seeking to recover against W. W. Cowin, sheriff of said county, and the sureties on his official bond as such, for his alleged failure to serve a certain writ of execution against the property of one W. C. Walter of said county.

The petition alleges the election of the sheriff; his giving bond in the sum of five thousand dollars with the sureties named; his assuming and exercising the duties of the office; and the recovery of a judgment in the Court of Common Pleas of Wyandotte County in the sum of $1,058.96 by the plainh iff in error against the said W. C. Walter on or about the 13th day of August, 1912.

It further alleges that afterwards, to-wit, on the 24th day of August, 1912, by order of plaintiff, execution on said judgment was duly issued and delivered to Cowin, as sheriff aforesaid, by the -Clerk of the Court of Common Pleas of Wyandotte County for levy upon the goods and chattels of said Walter, and that Cowin as sheriff aforesaid failed to make a levy as directed by the writ and on the 12th day of October, 1912, returned the same to the clerk of courts of Wyandotte county with the indorsement thereon, "No property found on which to levy; no money made, ’ ’ and received his fees for the service of the same.

It is further alleged that on the 16th day of September, 1912, W. C. Walter made an assignment for the benefit of his creditors, and that two dividends were paid upon said judgment by the assignee, and a recovery of the balance of the amount of the original judgment against Walter is sought to be made from the sheriff and sureties on his official bond.

A joint answer was filed by the sheriff and his sureties adf mitting the non-essential allegations of the petition, and admitting the issue of execution and its return as alleged, and averring that the sheriff had refused to levy the execution because there was no indorsement as to the deposit of fees made thereon and subscribed by the clerk as required by statute, and that the plaintiff in error waived its right to recover against the sheriff or his sureties because it had accepted dividends from the assignee; and so the issues were made up.

Upon the trial in the court below, and upon motion at the conclusion of the plaintiff’s evidence, the court directed a verdict in favor of the defendants.

The determination of this ease involves the issue as to whether or not it was necessary for the clerk of courts- of Wyandotte county to indorse upon said writ of execution the exact words relating to the deposit of fees as provided by Section 12105 of the General Code, as follows:

"Funds are deposited to pay the sheriff on this process.”

It is claimed, however, that still another section is applicable here, and that is Section 2882 of the General Code, in which it is provided that:

“The clerk shall not issue a writ in a civil action to another county until the party requiring the issuing thereof has deposited with him sufficient funds to pay the officer to whom it is directed for executing it, and the clerk shall endorse thereon the words, ‘Funds deposited to pay for the execution of this writ.’ ”

The foregoing section is quoted in full because it is urged that it is mandatory.

The execution issued by the clerk of Wyandotte county has endorsed upon it, “Fees on deposit to pay for the service of this writ,” Signed, “Daniel Reynolds, Clerk.”

The issue here is, therefore, whether or not the above indorsement was a sufficient compliance with said Sections 12105 and 2882 of the General Code.

It will be observed that it is not in the exact language in that regard, prescribed by either of these sections. It is claimed by the plaintiff in error that it was not necessary that it should be, but that any indorsement is "sufficient in which the language of the statute is substantially used, and which clearly advises the sheriff that his fees are on deposit with the clerk.

It is contended by the defendants in error that said statutes are mandatory, especially Section 2882, and strict compliance is therefore necessary; while no case has been found which is fully upon the point in the issue raised here, yet there is one somewhat helpful, found in the 10th Ohio at page 45, Duncan, Sheriff, v. Drakeley, the syllabus of which is as follows:

“A sheriff can not be amerced for not executing a case from another county¡ unless the indorsment ‘funds deposited,’ etc., is made upon the writ, nor can a tender of his fees be substituted in the place of such indorsement.”

In the above case there was no indorsement upon the writ. The judgment creditors tendered to the sheriff an amount in money sufficient to satisfy him for the execution of it, but it was held that such tender was not sufficient. The court, speaking by Hitchcock, Judge, indicates the purpose of the indorsement at page 50 in the opinion, where it is observed that:

“In 29 O. L., 226, it is enacted, that it shad be the duty of each and every clerk, where he issues such writ to a sheriff oi other officer discharging the duties of sheriff in any other county in this state, to indorse on the back of said writ these words: ‘Funds are deposited to pay the sheriff on this writ,’ and it was required that the clerk should subscribe his name thereto.”

It will be observed that‘the court did not hold that the words should be indorsed upon the writ in their entirety, but that “Funds deposited” was sufficient, and the reason is declared in the further discussion as to the purpose of the indorsement at the same page, as follows:

“The object of requiring this indorsement is, that the sheriff to whom the writ is directed may have assurance that his fees are secured.” * *' #

Such, therefore, is the purpose of the indorsement, and when that purpose is substantially subserved, the requirements of the statute have been met.

It is urged that in the above case it was held that the statute should be strictly construed, but the action was to amerce the sheriff, while in the instant case it is upon the official bond which makes a different issue and the rule of strict construction does not necessarily apply.

It is suggested that the case of Lumber Co. v. Kennard et al, 11 C.C.(N.S.), 161, is upon the point and therefore of value in determining the issue here; however, the facts are entirely different, because in the above case there was no indorsement on the writ and obviously no action could be maintained against the sheriff for a failure or refusal to execute it; however, it is indicated, inferentially at least, that liability would have attached if the fees had been deposited.

The sheriff went to the home of Walter after he received the writ, and it is Claimed that he was then requested not to levy the execution upon the goods and chattels of the judgment debtor for the reason that the judgment would be paid within a short time; the assignment by Walter followed soon afterwards and which precluded a levy, and by reason of which it is said that the judgment creditor was prevented from recovering in full upon his claims, and for which he seeks to hold the sheriff and sureties on his official bond.

Are the above Sections 2882 and 12105, General Code, in conflict, or in pari material Obviously they are not in conflict because they relate to the same subject and practically agree, and where one is applicable in a given cáse the other may be considered so.

To hold strictly to the terms of either, as to the exact words to ¡be indorsed on the writ, would be to annul the other. This the courts uniformly refuse to do, where by any possible reasonable construction such result can be avoided. Mr. Sutherland on Statutory Construction pertinently observes at Section 283, as follows:

“All consistent statutes which can stand together, . though enacted at different dates, relating to the same subject, and hence briefly called statutes in pari materia, are treated prospectively and construed together as though they constituted one act. * * *
“They are all to be compared, harmonized if possible, and, if not susceptible of a construction which will make all of their provisions harmonize, they are made to operate together so far as possible consistently with the evident intent of the latest enactments. ’ ’

The wording of said statutes as to the indorsement is not exactly the same, but the purpose of each is identical. That is, to advise the foreign sheriff that his “fees are on deposit” for the service of the writ and the indorsement is his protection as such officer. Therefore, when he is fully advised in that regard, the requirements of the statute, whether directory or mandatory, have been met.

In Bodge v. Gridley, 10 Ohio, 174, it is held in the second paragraph of the syllabus that:

“Two statutes in pari materia shall stand together, and both have effect if possible, for the law does not favor repeals by implication. ’ ’

It is well said in Annett v. State, ex rel, 8 L. R. A. (N.S.), 1196, by the Supreme Court of Indiana that:

“It is a fundamental rule of statutory construction- that it is thej intent or spirit of an enactment, rather than its letter, which is to govern.”

And another case which is somewhat helpful is Street Railway Co. v. Pace, 68 O. S., 206, where the above case of Bodge v. Gridley is cited with approval and it is observed as follows:

“"Where two affirmative statutes exist, one is not to be construed to repeal the other by implication, unless they can be reconciled by no mode of interpretation.”

Therefore, the conclusion must be that there is no conflict between these sections and being in pari materia they must stand together, and such is clearly disclosed by a comparison of the language in each statute with the indorsement on the writ as follows: '

Section 2882 provides that the indorsement shall be—

“Funds deposited to pay for the execution of this writ.”

Section 12105 provides — •

“Funds are deposited to pay the sheriff on this process.”

And the writ of execution in question here had indorsed upon it:

“Fees on deposit for the service of this writ,”

and signed by Daniel Reynolds, clerk. It was directed to the sheriff of Geauga county. The words of the indorsement are plain, clear and unmistakable; as such they are not susceptible of construction. The sheriff could not be mislead. He could not fail to understand that his fees for the service of the writ were on deposit. He could not have known or understood more if the exact language of either of the above statutes had been used. ITe was fully protected by the indorsement, and it was his duty to levy the execution or make the attempt to do so.

Following his failure to execute it, he returned it with the indorsement thereon, “No property found on which to levy; no money made,” signed his name as sheriff and received his fees. In any event the indorsement brought his fees; it was therefore fully effective for the very purpose for which it was intended. What more was necessary?

When he received the writ he did not make any question about the form or wording of the indorsement, but deemed it quite sufficient to authorize him to go to the home of Walter, no doubt for the purpose of making the levy; his failure to do so, therefore, rendered him liable to the judgment creditor for any loss sustained by reason of such failure; nor does the acceptance of dividends from Walter’s assignee now preclude a recovery of the balance, because the payment of such dividends inured to the sheriff’s benefit and he can not therefore be heard to complain.

In view of the foregoing, the judgment of the court below is reversed.

Pollock, J., and Metcalfe, J., concur.


author: Houck, J.

text:
    EXCESSIVE DAMAGES.
    Court of Appeals for Knox County.
    Marion Hathaway et al v. H. C. Johnson et al.
    Decided, November 18, 1918.

      Verdicts — Will Not he Disturbed Because Excessive, Unless — Charge of Court — Duty of Trial Judge to Separate and Definitely State the Issues of Fact Made in the Pleadings.

    A reviewing court will not, disturb a verdict because of an award of excessive damages, unless the amount awarded is so disproportionate to .the damage shown by the evidence to have been sustained as to convince the court that the jury, in rendering the verdict, was governed -by passion, prejudice or feeling rather than by cool, calm judgment.

      J. W. Barry and Burton E. Sapp, for plaintiffs in error.

      Robert L. Ccvrr, contra.
   Houck, J.

The plaintiffs in error here were the defendants below, where a judgment was entered against them for the sum of $350, based on a verdict returned by a jury for said amount. The issues were raised 'by petition and answer, tbe basis of the recovery being for alleged damages done by defendants below to certain trees and fences belonging to the plaintiffs below, the answer being in the nature of a general denial and justification.

A reversal of .the judgment entered by the trial judge is asked because he erred in his general charge to the jury, in this, to-wit: that the issues in the case were not defined and stated to the jury.

The rule governing this question is found in the case of Baltimore & Ohio R. R. Co. v. Lockwood, as reported in 72 Ohio State, page 586, first syllabus, which reads:

‘ ‘ In submitting a case to the jury, it is the duty of the court to separate and definitely state to the jury, the issues of fact made in the pleadings, accompanied by such instructions as to each issue as the nature of the ease may require; and it is also the duty of the court to distinguish between, and call the attention of the jury to, the material allegations of fact which are admitted and those which are denied.”

Applying this rule to the charge in the present case, we find it to be sound in every particular, and in full and complete accord with the rule of law as enunciated by our Supreme Court in the case cited. The language used by the court was plain, explicit, definite and certain, and, as we view it, clearly and concisely stated to the jury each and every fact necessary to be determined, as well as the law governing same. Our examination of the charge further convinces us that the court did its full duty in the premises; and the law, as laid down therein, was responsive to and in complete harmony with the issues raised by the pleadings and the facts as established by the evidence. We have read the pleadings with care, and all the evidence offered in the case, as contained in the nearly two hundred pages of typewritten matter, and we find the issues of fact and law, necessary to a proper solution of the controversy between the parties to this action, were defined and given to the jury by the trial judge as required by law.

The next error complained of is that the verdict is excessive.

As to whether or not a verdict is excessive, in some cases, presents a question not easily to be solved. There are two classes of cases in which an excessive verdict may be set aside, namely: (a) "Where the amount of the verdict is clearly susceptible of ascertainment by calculation, or where the law has established some fixed rule by which it may be ascertained; (b) Where no fixed rule is established.

In the first instance there is no difficulty in applying the rule, and where the verdict is excessive, it is the duty of a reviewing court to set aside the judgment entered on such verdict. As to the second, the judgment on the verdict should not be interfered with, unless the amount of it clearly indicates that the. jury acted from passion, prejudice, partiality or corruption.

We hold the rule is well settled that in cases like the one at bar the verdict of the jury will not be disturbed, unless in amount it is so excessive as to strike one,' at first blush, as unreasonable and outrageous, and such as manifestly indicates that the jury acted under the influence of prejudice or passion, or under a clear misapprehension of its duty and the facts of the case.

In the case of Brooklyn Street R. R. Co. v. Kelley, 6 C. R., page 155, Judge 'Caldwell, speaking for the court says:

“A reviewing court will not disturb a verdict on account of excessive damages, unless the amount awarded is so disproportionate to the damages shown in the evidence that the court is satisfied that the jury, in rendering the verdict, was governed by prejudice, passion, or feeling, instead of by cool and calm judgment. ’ ’

This rule of law appeals to us as being sound, and measuring the facts in this case by it, we hold that the second ground of alleged error is not well taken.

Judgment affirmed.

Powell, J., and S'hdslds, J., concur.


text:
    AGREEMENTS FOR THE PURCHASE AND SALE OF REAL ESTATE.
    Court of Appeals for Belmont County.
    Leota Steel v. John A. Murphy et al.
    Decided, December 11, 1918.

      Specific Performance — Will Not he Decreed, Unless the Remedy is Mutual — Conditional Acceptance of Offer to Buy or Sell Equivalent to Rejection — Conveyance May he Enforced of an Undivided Interest —Where Co-Tenants Save Refused to Join in Agreement to Sell.

    1. An acceptance of a written offer for the sale of real estate must be unconditional in order to become binding upon the party offering to sell.
    2. A conditional acceptance, or proposing a different contract, is a rejection of the offer.
    3. Courts of equity will not decree specific performance of a written contract for the sale of real estate unless the remedy under tbe contract is mutual.
    4. Where the owner of an undivided interest in land, enters into a contract for the sale of the entire tract, representing that he had authority from his co-tenants to make the sale, he, in his failure to secure a conveyance from his co-tenants of their interest, can not refuse to convey his undivided interest, although the vendee can not be required to accept less than a conveyance of the entire tract.
    5. In such a'case, a court of equity will at the suit of the vendee against the vendor decree specific performance of the undivided interest of the vendor, with an equitable abatement in the purchase price in proportion to the interest of the co-tenants in said premises.

      James G. Tollman, for plaintiff.

      Hevnlein, Spriggs <& James, contra.
   Pollock, J..

This canse came into this court on appeal and was submitted on the pleadings, the evidence and the arguments of counsel. The only issue before the court arises on tbe petition of Leota Steel and the answer of the defendant, John Murphy, and reply of plaintiff thereto.

The plaintiff' seeks to compel the defendant, John A. Murphy, to convey to her his undivided one-half interest in the real estate described in the petition by virtue of a written contract for the sale of this real estate made by and between the plaintiff and the defendant.

An answer was filed which denied the making of the contract and plaintiff’s right to have specific performance.

It appears that on the 28th of February, 1917, Leota Steel went to the home of John Murphy for the purpose of purchasing this lot. At that time she leazmed that the lot described in the petition was owned by John Murphy and his son, James Muz-phy. While talking the matter over, John Murphy told her that he would see his son and would let her know in a few days in regard to the sale of the lot. On the 9th of March, following she received a letter ezzclosing an article of agreement for the sale of this lot. The article of agreement was between John and James Murphy of the first part and Leota Steel of the second part, and provided that the first party agreed to sell lot number 7 in the village of Merrit, Belmont county, Ohio, to Leota Steel for the consideratiozz of sixteezz huizdred dollars, the purchase money to be applied to the paymezzt of a mortgage held by the Buckeye Building & Loazz Coznpazzy, and the remainder to be paid to these parties. First party to make deed and give possessiozz between the first and tenth of April, 1917. The second party to send first party fifty dollars by return znail and receive a receipt for the amount, stating what it is for. The contract was sigzzed by John Murphy alone.

The defendant first urged that the contract was not accepted by the defendant, or izz other words that the parties never entered into the contract. The plaintiff, on receipt of this contract, prepared a cozztract containing some different terms from the one received — the difference iiz the two contracts does not appear frozn the testimony — sending the new contract by mail to John Murphy, enclosing a cheek for fifty dollars, the cash payment provided for in the first contract.

It is urged that Leota Steel could not retain possession of the contract signed by John Murphy while proposing a different contract, azzd if he did not accept the one sent by her, bind him by accepting his contract. An acceptance of a written offer for the sale of real .estate must be unconditional in order to become binding upon the party offering to sell. A conditional acceptance or proposing a different contract is a rejection of the offer. First National Bank v. Hall, 101 U. S., 43; Baker v. Johnson County, 37 Iowa, 186; Wheaton Bldg. & Lumber Co. v. City of Boston, 204 Mass., 218 (90 N. E., 598.)

If the plaintiff, in answer to the defendant’s offer, sent a contract containing different terms from that of the offer of the defendant, she could not bind the defendant by accepting his offer without his further consent. But the negotiations in regard to the sale of this property between these two parties did not stop with the receipt by Murphy of the contract prepared by Leota Steel. Murphy collected the check and forwarded to Leota Steel a receipt .therefor, reciting that he had received the cash payment on the house and lot at Merrit, near Bellaire, Ohio, enclosing the receipt with a letter stating the reasons why he could not agree to the contract prepared by her.

Some other letters passed from Murphy to Leota Steel before the time of making this -deed, and each of them conveys the impression that a contract existed between the parties for the sale of the property.

In the letter which notified Leota Steel that James Murphy would not execute the deed, he does not deny the existence of a contract, but laments the condition he had got himself into. We think that he can not deny that he gave his consent to LeotaSteel, to accept the offer made by him after he had refused her proposition and can not now deny the existence of this contract between them for the sale of these premises.

After the refusal of James Murphy to perform the conditions of the contract by conveying his interest in the property to the plaintiff, she instituted this action against John Murphy to enforce specific performance of the undivided one-half interest in this property owned by him. It is urged that she can not maintain this action for the reason that the remedy of specific performance is not mutual to the parties, and that specific performance is never enforced unless the contract and remedy is mutual; that a court of equity could not decree specific performanee of the undivided half of the property in favor of John Murphy for the reason that the contract provided for the sale of the entire interest, and that if he could not maintain specific performance, the plaintiff can not maintain it.

In order to enforce specific performance of a written contract for the sale of real estate the remedy must be mutual.

“Courts of equity will never decree performance when the remedy is not mutual or one party only is bound by the agreement.” Parkhurst v. Van Cortland, 1st Johnson’s Chancery, 282.

This principle was recognized by the Supreme Court of this state in Hutcheson v. Heirs of McNutt, 1st Ohio, 14-20.

But the remedy on the contract as made was mutual. The defendant, John Murphy, if he had been able to produce a deed for the entire property, could have enforced specific performance against the plaintiff had she refused to accept the property; but the question in this case does not depend upon the principle of mutuality of the remedy on the contract, for that existed, but it depends upon the principle of whether, when the title of the vendor to part of the property fails, the vendee can elect to enforce specific performance of the part to which the vendor has title. If the vendor, at the time he entered into the contract for the sale of land to which he has title only to an undivided interest, represented that he had authority from the other tenants in common to sell the entire estate, and the vendee, relying on that representation, contracted to purchase the entire premises and if the vendor afterwards fails to secure a conveyance from his co-tenants, the vendee may enforce specific performance of the interest owned by the vendor. This principle is recognized in Cochran v. Blottt, 161 U. S., page 350.

A court of equity will not permit the vendor to take advantage of his own wrong or mistake, but upon the election of the vendee will decree specific performance of the undivided interest owned by the vendor with an equitable abatement in the purchase price in proportion to the interest not owned by him. Story’s Equity Jurisprudence, Section 779, uses the following language in announcing the principle:

“We have thus far principally spoken of cases of suits by the vendor against the purchaser for a specific performance, where the contract has not been, or can not be, strictly complied with. But suits may also be brought by the purchaser for a specific performance under similar circumstances where the vendor is incapable of making- a complete title to all the property sold, or where there has been a substantial misdescription of it in important particulars; or where the terms, as to the time and manner of execution, have not been punctually or. reasonably complied with on the part of the vendor. In these and the like eases, as it would be unjust to allow the vendor to take advantage of his own wrong, or default, or misdescription, courts of equity allow the purchaser an election to proceed with the purchase pro tanto, or to abandon it altogether. ’ ’

See also Morss v. Elmendorf, 11 Page’s Chanc., 277; United States v. City of Alexander, 19 Federal, 609; Jones v. Shackleford, 5 Ky., 410; Lillery v. Land, 136 N. C., 537 (48 S. E., 824); Quary v. Scher, 136 Cal., 406 (69 Pac., 96).

We think from the facts developed by the testimony in this case, that the defendant, John Murphy, represented to the plaintiff, Leota Steel, for the purpose of making this sale, that he had authority from James to sell his interest, and that he was disposing of it in the contract with her. When' she visited Murphy on the 28th of February, in regard to the purchase of this property, she claims that he told her in substance that while he had authority to dispose of James’ interest, yet that he preferred to wait until he consulted with James, and that after that he would write her. It is true he does not admit this conversation, but we think that the probabilities are the conversation took place, and then on the 9th of March when he sent the contract he also enclosed with it a letter containing the following:

“We have come to an understanding that you can have the property, so if you mean business I will write a little contract and sign it and you can send me $50 to bind the contract, and James and I will make the deed between the first of April and the 10th.”

We think that John Murphy represented to the plaintiff, Leota Steel, that he had authority to sell this entire property and can not now refuse on the ground that James will not convey, to specifically perform the contract so far as he has title to the property.

The decree may be drawn in favor of the plaintiff.

Metcalfe, J., and Farr, J., concur.


author: Metcalfe, J.

text:
    RIGHT OF SURETY ON A NOTE TO PLEAD A SET-OFF.
    Court of Appeals for Ashtabula County.
    Laura C. Goddard v. M. Pollock.
    Decided, September 11, 1918.

      Surety — On a Promissory Note — May Plead Indebtedness of Holder as a Set-Off, When — Construction of Sections 8224 and 8296 of the Negotiable Instruments Act.

    In an action on a promissory note against two defendants both of whom are “primarily liable” on the instrument, but one of whom is in fact a surety, it is competent for the surety to plead as a set off an indebtedness existing in fayor of the principal debtor against the holder of the note.

      G. S. Ford, for plaintiff in error.

      John Copp, contra.
   Metcalfe, J.

The defendant in error, M. Pollock, brought this action to recover of the plaintiff in error upon a promissory note executed January 15, 1917.

The defendant, Laura Goddard, filed an answer in which she avers that she signed the note without any consideration and as surety only, and she then pleads as a set-off an indebtedness in favor of the defendant, Jay C. Goddard, against Pollock, the plaintiff and holder of the note.

A demurrer was filed to the answer, which was sustained by the court of common pleas, and the parties not desiring to further plead judgment was entered in favor of the plaintiff on this note.

The question her.e is: Can the defendant, Laura Goddard, plead the fact of her suretyship and the existence of a set-off in favor of the principal debtor, against the holder of the note ? The solution of this questiion depends upon the construction to he given to Sections 8224 and 8296, General Code, which are included in what is known as “the negotiable instruments act.”

. In the first place it is urged that by the act of signing her name upon the face of the instrument Laura C. Goddard became primarily liable on the note, and we think this contention is correct. Section 8296 provides:

“The person ‘primarily liable' on an instrument is the person who by the terms of the instrument is absolutely required to pay the same. All other parties are ‘ secondarily liable. ’ ’'

The note in suit is an absolute unconditional promise to pay, and both the parties are, by the terms of the instrument, absolutely required to pay it and hence it follows that they are both primarily liable; but, we do not think that that fact determines the question, whether or not she may plead a set-off existing in favor of the principal debtor. The fact that he is principal debtor and she is surety is admitted by the demurrer, but the question whether she is principal or surety does not affect the question of primary liability.

It is further claimed that by the terms of Section 8224 that Mrs. Goddard could not plead the fact that she was a surety on the note, nor plead a set-off existing in favor Of the principal debtor, and that the discharge of the note could not be effected by offsetting an indebtedness in favor of the principal debtor. Section 8224 provides:

‘ ‘ A negotiable instrument is discharged:
‘ ‘ 1. By payment in due course by or on behalf of the principal debtor.
“2. By payment in due course by the party accommodated, where the instrument is made or accepted for accommodation.
“3. By the intentional cancellation of the same by the holder.
“4. By any other act which will discharge a simple contract for the payment of money.
‘ ‘ 5. When the principal debtor becomes the holder of the instrument at or giter maturity in his own right. ’'

This section distinctly recognizes the fact that there mnv he a principal debtor, and if there is a principal debtor there must also be a debtor who is not a principal debtor. If the debtor who is not the principal debtor is a surety, that fact can only be ascertained judicially by pleading it. It would certainly be competent for the surety to plead any of the things mentioned in the section and to plead them for his own benefit.

We think the controlling part of this section, so far as this case is concerned, is Sub-division IV:

“By any other act which will discharge a simple contract for the payment of money.”

The judicial determination of the fact that the maker of the note is the owner of a claim against the holder, which may be legally, offset against the plaintiff’s claim, is an act which will discharge the contract for the payment of money. We see nothing in this section Which takes away from the debtor on a promissory note any right of set-off which existed before the passage of “the negotiable instruments act,” and the right of the surety having existed before the passage of the act to plead a set-off is not taken away by that act.

It is urged that the case of Richards v. Market Exchange Banking Co., 81 O. S., 348, determines the question adversely to this holding. We were inclined to think so at first, but a study of that ease leads us to the conclusion that the two cases are easily distinguishable. The first proposition in the syllabus of Richards v. Banking Co. is:

“One who signs a promissory note on the face thereof, and who in that way becomes a surety for the principal maker is by force of Section 3178a, Revised Statutes, primarily liable for the payment of stich note.”

Section 3178a, Revised Statutes, is now Section 8296, General Code. The second proposition of the syllabus reads:

“Sec. 3185j, Rev. Stat. (Sec. 8224, G. C.), relating to the discharge of negotiable instruments provides in what manner and for what causes such instruments may be discharged, a'nd by force of the rule expressio unius est exclusia alterius sureties upon such instruments who are primariily liable thereon can not be otherwise relieved from responsibility for their payment.”

That is to say, that the surety upon a promissory note who is primarily liable thereon can only be relieved from its payment' by force of the language of Section 8224.

The question which was before the court in the latter-cause 'for determination was whether or not a contract made by the principal debtor with the holder of the note for an extension of time of payment tu=arparticular time discharged the surety. That was undoubtedly the rule before the passage of Section 8224.

The Supreme Court held that such a contract is not within the provision of the statute, and therefore that the rule that a contract to extend the payment of the note for a definite period would relieve the surety, is no longer in force in Ohio.

In that case they were seeking by an act of the parties not comprehended in the language of the statute to discharge the contract in question, and the court held it could no longer be done that way; but we think that the language of Sub-division IY before- cited, saves the right to defendant to plead a set-off. To hold otherwise woidd be to say that the Legislature intended to take away from the maker of a promissory note the right to plead an indebtedness existing in his favor against the holder of the note. We do not think that was the intention of the statute.

It is claimed, also, that the language of the note itself precludes the defendant from, pleading a set-off or counterclaim.

To put upon the language of the note the construction claimed for it by the defendant in error, would be to say that the defendant below has given up her right to plead, counterclaim or set-off without- consideration, and that it was in fact a guaranty that they had no such claim.

We do not think the language bears that construction, and if it did it would certainly be doubtful whether a party could give away without consideration their right to set up a legal defense in an action upon a promissory note. We think the demurrer in this case should have been overruled and the judgment of the common pleas court in sustaining it is reversed.

Pollock, J., and Farr, J., concur.


text:
    LIABILITY OF SURETY FOR SUPPLIES USED BY CONTRACTOR.
    Court of Appeals for Franklin County.
    State of Ohio, on Relation of The Hilane Garage & Machine Company, v. The United States Fidelity & Guaranty Company.
    Decided, November, 1918.

      Burettes — Bond Covering Road Contract — Gasoline and Oil Part of the Material Used — Grain and Peed Cases Distinguished.

    A surety upon tbe bond of a contractor for road improvement given under Section 1208, General Code (106 O. L., 634), is liable for gasoline and oil furnished the contractor for use in motor trucks engaged in transporting material for the construction of the road under the contract.

      Watson, Stouffer, Davis & Gearhart, for plaintiff in error.

      Atkinson & Smith, contra.
   Allread, J.

This action was brought to recover for gasoline and oil supplied to the trucks of Culbertson & Culbertson, contractors, for certain road construction work. The trucks were engaged in hauling sand and gravel to be used in the work of constructing the road. The gasoline and oil was furnished by the plaintiff under a contract with Culbertson & Culbertson. The defendant, the United States Fidelity & Guaranty Company, was the surety upon the bond of Culbertson & Culbertson for the performance of the contract.

The statute (Section 1208, G. C., 106 O. L., 634) requiring the bond, contains the following provision:

“Such bond shall also be conditioned for the payment of all material and labor furnished for or used in the construction of the road for which such contract is made, and which is furnished to the original contractor or sub-contractor, agent or superintendent of either engaged in such work. The bond may be enforced against the person, persons or company executing such bond by any claimant for labor or material.”

The bond among other provisions contains the following:

“And shall pay all claims of sub-contractors, materials, men and laborers arising from the construction of said improvement.”

Í

The contentions of counsel for defendant in error is that the furnishing of gasoline and oil to motor trucks 'engaged in the hauling of material for the construction of the road in controversy is not “material and labor furnished for or used in the construction of the road.”

The trial court accepted this view and instructed a verdict for the defendant.

Counsel upon both sides have been industrious in the citation of many cases under similar statutes and contracts. The case at bar involves a construction of the statute and bond above recited.

It is argued in behalf of the contention of the defendant in ■error that the material and labor for which the personal liability is given against the surety upon the bond of the contractor must be limited to the labor and material going directly into the improvement.

While there are some cases notably the case of City of Philadelphia v. Malone, 214 Penn. State, 90, which accepts that restricted view yet we think the weight of authority sustains a more liberal construction of the statute and bond under consideration. Title Guaranty & Trust Co. v. Crane Co., 219 U. S., 24; City Trust, etc., Co. v. U. S., 147 Fed., 155; Zipp v. Fidelity & Deposit Co., 76 N. Y. Supp., 386; Am. Surety Co. v. Lawrenceville Cement Co., 110 Fed., 717; National Surety Co. v. U. S., 228 Fed., 577; Brogan v. Natl. Surety Co., 246 U. S., 257; U. S. Fidelity Co. v. Bartlett, 231 U. S., 237.

It will be observed that the statute includes not only material and labor used “in” the construction of the road, but material and labor furnished “for” the construction of the road. We think that to confine this construction to labor and material which goes directly into the road improvement would be too narrow. Motor trucks are very commonly used in modern road construction. The language employed in . the statute would include any labor or material furnished the contractor or subcontractor which goes directly into and forms a part of the work or road construction. Gasoline and oil in motor car service are essentials and without it trucks could not be operated. It is identical in principle to the coal and oil cases where coal and oil are furnished to operate the engine and the ■engine takes the place of labor in the construction.

In the coal and oil cases the claims were allowed because the coal and oil furnished the motive power and operated as a substitute for labor. The same argument may be made in favor of gasoline and oil as applied to motor truck transportation.

If the material is only a few feet from the desired position in the road it could 'be shoveled by labor. If it were a few yards away it would probably be wheeled by labor, but if miles away it may be transported by motor trucks with gasoline and oil as the motive power. So that, if the argument that the gasoline and oil must be a substitute for labor is necessary to support the plaintiff’s claim, the argument would not be.entirely lacking as the distance required for transportation would not change the principle.

It is true it has been held that grain and feed for the sustenance of animals employed in transportation and other work is not material within the meaning of statutes and contracts. U. S. v. Laurence, 236 Fed., 1006; National Surety Company v. U. S., 228 Fed., 577; Pennsylvania Railroad Company v. Mahaffey, 75 O. S., 432.

But the grain and feed cases do not purport to be inconsistent with the coal cases. In fact in the National Shrety Company case the court allowed a claim for coal and disallowed a claim for feed. It is apparent that claims for feed for animals or men engaged in labor upon construction work are more remote than claims for coal or gasoline and oil used as the motive power for machinery directly employed in construction work. The feed and grain cases are not, therefore, irreconcilable with a claim for gasoline and oil under the circumstances of the present case.

We are, therefore, of opinion that the plaintiff would be entitled to an allowance of his claim for gasoline and oil furnished to the contractor for use in trucks employed exclusively in conveying material for use in the road improvement contracted for.

Judgment reversed and cause remanded for a new trial.

Kunkel, J., and Ferneding, J., concur.


author: Richards, J.

text:
    WILL CONSTRUED TO HAVE CREATED TWO CLASSES OF HEIRS.
    Court of Appeals for Wood County.
    John A. Stearns et al v. James F. Brandeberry et al.
    Decided, June 17, 1918.

      Wills — Provision that Remainder of Estate Go to the Heirs of Testator and His Wife — To he Divided Equally Share and Share.

    A testator after making certain specific bequests and devising a life estate in the remainder of his property to his wife, provided in his will as follows: “It is my request that the balance of my estate he equally divided between my living heirs and the living heirs of my wife, Sarah Ann Stearns, share and share alike.”

      Held: That two classes are created by the words “my heirs and the heirs of my wife Sarah,” and that the testator’s heirs, who were two brothers and a sister, would take one-half of the estate, and the heirs of his wife, who were four brothers and two sisters and two nephews, the sons of a deceased sister, would take the other ' half.

      Held, further, that the phrase “share and share alike,” qualifies the provision for each set of heirs and that the distribution among each set of heirs of the half so devised, is to be as of the date of the death of the widow, and to be per capita and not per stirpes.

      Fries & Hatfield, for plaintiffs.

      Feed & Maurer and Wade & Dillon, contra.
   Richards, J.

This action was brought by the plaintiffs as executors of the 'last will and testament of Orrin Stearns to obtain a construction thereof by the court. The will was executed on October 17,1888, and after making certain specific bequests and devises, gives and devises to his wife, Sarah Ann Steams, all the remainder of his property, real and personal, for and during her natural life.

The will then contains the clause which is in controversy and which reads as follows:

"It is my request that the balance of my estate be equally divided between my living heirs and the living heirs of my wife, Sarah Ann Stearns, share and share alike. ’ ’

In view of the fact that the wife was given a life estate in all the property remaining after the specific provisions were satisfied, the time of distribution would naturally be the date of the wife’s death; and the living beneficiaries referred to in the clause above quoted would be those who were living at that date. At the time of the execution of his will and at the time of the death of his wife, Sarah Ann Stearns, the heirs of the testator were two brothers and one sister who are named in the will and are parties to this action, and at the date of the wife’s death her heirs were four brothers and two sisters and two nephews, the sons of a deceased sister.

Counsel for the heirs of the testator claim that those heirs are entitled, under the provisions of the will quoted, to one-half of the estate remaining, while counsel for the heirs of the widow contend that both sets of heirs are giouped as one and that each heir is entitled to an equal part of the estate, no matter whether such heir be an heir of the testator or an heir of his widow. The common pleas court held with the contention made on behalf of the heirs of the testator, and awarded to said heirs one-half of the estate, construing the will to be such that the remaining one-half would pass to the heirs of the widow. In the course of the opinion of the trial judge, which has been submitted to us, he uses the following language which we think clearly states the proper construction to be placed upon the will:

"Two classes are created by the provision, ‘my-heirs and the heirs of my wife Sarah.’ And the phrase ‘equally divided between’ means an equal division between the two classes. And the phrase ‘share and share alike’ qualifies the provision for each set. This construction gives each word its generally accepted meaning, eliminates none as surplusage and makes the provision a consistent whole.”

A fair construction of the clause in question in the will leads to the conclusion that the testator was intending to divide the property so that his heirs should receive as much as the heirs of his wife. It was his property that was being disposed of, and we could hardly conclude that he intended by the language used to give to each one of his wife’s nephews an equal share of his property with his own brothers and sisters; neither could we assent to substituting the word “among” for the word “between” when the testator has evidently used the word “between” accurately and expressed his intention and indicated that his heirs and his wife’s heirs constituted two classes.

In Bassett v. Granger, 100 Mass., 348, the bequest reads:

‘ ‘ I give and bequeath all my personal property of every name and nature, after paying the foregoing legacies, to the heirs of my late husband and to my heirs equally. ’ ’

This language was construed by the Supreme Judicial Court of Massachusetts to be a bequest in equal shares to two classes.

A similar conclusion was reached in Records v. Fields, 155 Mo., 314, where the provision was that the property should be “equally divided between the heirs of William Fields and James Fields, deceased:”

See also Young’s Appeals, 83 Pa. St., 59. In the course of the opinion in the ease just cited the court uses the following language:

11 He and his wife were childless. There was no issue of either to whom the property could be transmitted. It may have been the joint product of their industry and economy. This or some other moving cause prompted him to direct that the property be ‘equally divided’ between families of different blood. The language clearly points to one general division, one separation of the fund. Two classes were in his mind. One class was his relations, the other class was his wife’s relations. The property was to be equally divided ‘between’ these two classes, and each class to take one-half. His relations one-half, his wife’s relations the other half. Neither the language nor the spirit of the will indicates that each relation should have an equal share.”

The conclusion indicated is not in conflict with the decision of this court in Holmes, Exr., v. Fackleman, 2 Ohio App. Reports, 258; 20 C.C.(N.S.), 109.

In that ease the testator devised the remainder of his property to the children of his two sisters,' Margaret Fackleman and Marion Fackleman, to be equally divided between them, share and share alike. At the time of the execution of his will both of his sisters were deceased, one having nine children living and the other four. The language of the will did not create two classes as in the case at bar, and in view of thé fact that both his sisters were deceased and all of their children were of the same relationship to the testator, a fair interpretation of the will was that the remainder of the estate should be divided into thirteen equal parts, one part going to each of the thirteen grandchildren.

In the ease at bar, the heirs of the widow were at her death four brothers and two sisters and two nephews, sons of a deceased sister, making eight in all. The distribution is to be made as of the date of the death of Sarah Ann Stearns, widow of the testator who had a life estate, and each of her heirs then living would be entitled to one undivided eighth of the half of the estate which passed by the terms of the will to her heirs. This branch of the ease falls directly within the holding of Mooney, Guardian, v. Purpus, Exr., et al, 70 O. S., 57, and the distribution to tire heirs of the widow must, therefore, be per capita, and not per stirpes.

The fact that Jane Werner, one of her sisters, died subsequent to the widow’s death leaving children would not alter the method of construing the will for the estate vested at the death of the widow and Jane Werner took at the date of the death of her sister one-sixteenth of the estate.

It follows from what has been said that each of the three heirs of the testator is entitled to one undivided sixth part of the estate and each of the eight heirs of the testator’s widow is entitled to one-sixteenth part of the estate. All of the assets of the estate have been collected and converted into money and the executors have paid all the debts of the estate and there now remains in their.hands as executors the sum of $16,252.59. A decree may be entered ordering the distribution of that amount in accordance with this opinion.

Chittenden, J., and Kinkade, J., concur.