text:
    PRESUMPTION AS TO KNOWLEDGE OF DIRECTORS OF A CORPORATION.
    Circuit Court of Cuyahoga County.
    The P. C. O’Brien Company v. The Western Seamen’s Friend Society.
    Decided, February 13, 1912.

      Corporations — Officers ■ Presumed, to Know What — Ratification of Unauthorised Acts of Agents — Implied Powers of Corporations — Ultra Vires.

    1. For the purpose of protecting the rights of innocent third persons, the knowledge of the directors of a corporation of those things which, in the exercise of their official duties, they ought to know, will be presumed.
    2. A corporation may ratify the unauthorized acts of its agents, and no formal resolution of the board of directors is necessary for that purpose, and if the unauthorized act of an agent of a corporation is clearly beneficial to the corporation, a presumption . of ratification will arise from slight circumstances.
    3. The Western Seamen’s Friend Society, incorporated under special act in 1850, whose purpose is the disseminating of moral and re- , ligious instruction and other charities amongst, sailors and boatmen doing business on our western waters, and having power in furtherance of this purpose “to acquire, possess and enjoy, sell, convey and dispose of property, real and personal or mixed, whether acquired by purchase, gift, devise or legacy, also of all property of which the society is now the legal and rightful owner; provided the annual income thereof shall not exceed the sum of forty thousand dollars, having purchased hotel property particularly adapted to the accommodation of sailors, and operated it as such, purchasing groceries therefor, from which operation it received a profit, is liable for the groceries so purchased.

      M. P. Mooney, for plaintiff in error.

      J. M. Shallenberger, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.
   The parties to this proceeding in error stand in the same relation as in the court of common pleas. Upon the trial of the case, after all the evidence was in on both sides, the court, upon motion of the defendant, directed the jury to return a verdict for the defendant. For alleged error of the trial court in thus directing a verdict, the plaintiff in error seeks a reversal of the judgment against it.

The plaintiff’s action in the court of common pleas was brought to recover the sum of $359.87 for gorceries claimed to have been furnished the defendant, in its operation of the Kimball Hotel, formerly the Hotel Bethel, in the city of Cleveland.

While the delivery to the hotel of the groceries is not denied, it is claimed that the board of directors never authorized the operation of a hotel and the purchasing of the groceries.

The defendant in error purchased the land and building at the corner of Spring street and Superior avenue in the city of Cleveland on March 15, 1905, from the Cleveland Bethel Union. At that time the property was used by the Cleveland Bethel Union as a hotel, known at the Hotel Bethel, which was managed by one Fitzpatrick, on behalf of the owner. On March 15, 1905, at the time of the purchase of the property, Fitzpatrick was instructed by a Mr. McMahon, the general superintendent of the defendant in error, and a member of the board of directors, to continue in the management of the hotel as he had been doing. The hotel was managed by Fitzpatrick from that date to .some time in September, 1908. During that period of time he received a' salary, and the surplus earnings of the hotel were turned over by him monthly to the secretary and treasurer of the Western Seamen’s Friend Society, and were by that official deposited to the bank account of the society, and used by it for its purposes. The groceries, for the price of which the plaintiff sued, were furnished to the hotel thus under Fitzpatrick’s management, between the first of August and the first of September, 1908. Previous to this -and during the entire period from March 15, 1905, to August 1st, 1908, the plaintiff in error had furnished groceries to the hotel, which had been paid for by Fitzpatrick out of funds realized from the operation of the hotel. These payments had been accounted for by Fitzpatrick to the secretary and treasurer of the Western Seamen’s Friend Society, in statements rendered from time to time.

On this state of facts, and by reason of other facts not herein enumerated, there was evidence of authority, or of ratification, to: be submitted to the jury, if the defendant in error could under any circumstances be held liable for a claim of the kind sued for, and incurred for the purpose, and in the manner, indicated.

It .is a principle of law that for the purpose of protecting the rights of innocent third persons, the knowledge of the directors of:a-corporation of those things which, in the exercise of their official duties, they ought to know, will be presumed (Arlington v. Price, 122 Mass., 270; Murray v. Nelson Lumber Co., 143 Mass., 250). The law-is- clearly settled that a corporation may ratify the unauthorized acts of its agents, and no formal resolution of the board of directors is necessary for that purpose, and if the unauthorized act of an agent of a corporation is clearly beneficial to the corporation, a presumption of ratification will arise from slight circumstances. Washington Savings Bank v. Bank, 107 Mo., 133.

But it. is contended by the defendant in error, that it is a .charitable corporation, and so limited by its charter rights that jt had ■ no. authority to engage in the business of operating a hotel, and that, even though it received and used the groceries it can not be required to pay for them.

The question presented by this contention' requires a consideration of the precise corporate powers conferred upon the defendant in error by the act of its creation.

The Western Seamen’s Friend Society was incorporated by a special act of the Legislature of Ohio, passed on the 23d of February, 1850. By this act the corporation was created “for the purpose of disseminating moral and religious instruction, and other charities amongst sailors and boatman doing business on our western waters.”

The powers conferred upon it are expressed in the following language:

“And as such shall continué and have perpetual succession, with power to contract and be contracted with, prosecuting and defending suits, in all courts of law and equity, and to acquire, possess and enjoy, sell, convey and dispose of property, real and personal, or mixed, whether acquired by purchase, gift, devise or legacy, also of all property of which the society is now the legal and rightful owner; provided the annual income thereof shall not exceed the sum of forty thousand dollars.
“See. 2. The society shall have power to establish minor or lesser institutions, newspapers, magazines and such other auxiliaries in furtherance of its said object as may be deemed necessary, to have and use a common seal, and to change, alter or renew the same at pleasure, and to make, alter and amend such constitution and by-laws, rules and regulations for its government, the number and election of officers and admission of membership, as it may deem necessary and expedient.”

If the Western Seamen’s Friend Society has any authority to engage in the operation of a hotel, such authority must be founded on an implied power of the corporation, since the language above does not expressly empower it to engage in such an enterprise.

The doctrine of the implied powers of corporations has been liberally applied in Ohio, and has been invoked to sanction not only those acts of a corporation necessary and indispensible to the enjoyment of powers expressly given, but those that are appropriate, convenient and suitable for the accomplishment of the purj3o.se of its creation, and a reasonable choice is allowed in selecting the instrumentalities with which to accomplish such purpose.

The principles to be applied in determining whether a corporation is acting within its implied powers, are laid down in The Central Ohio Natural Gas & Fuel Co. v. The Capital City Dairy Co., 60 O. S., 96, a part of the syllabus of which reads as follows:

“The implied powers which a corporation has in order to carry into effect those expressly granted, and accomplish the purposes of its creation, are not limited to such as are indisj)ensible for these purposes, but comprise all that are necessary in the sense of appropriate, convenient and suitable, including the right of reasonable choice of means to be employed.”

The same principles should be resorted to as are applied in ascertaining those of a corporation for profit in determining the implied powers of a charitable corporation. Reverting to the act whereby the Western Seamen’s Friend Society was created, it will be seen that the express powers granted it are very broad. While its purpose is the “disseminating of moral and religious instruction, and other charities amongst sailors and boatmen doing business on our western waters,” it is given power, in furtherance of this purpose, “to acquire, possess and enjoy, sell, convey and dispose of property, real and personal or mixed, whether acquired by purchase, gift, devise or legacy, also of all property of which the society is now the legal and rightful owner; provided the annual income thereof shall not exceed the sura of fort,y thousand dollars.”

The purchase of the hotel property was clearfy within the power of the defendant in error. Having by the exercise of authority expressly given it, acquired property, long used as a hotel, and therefore suitable for that purpose, and perhaps suitable for no other purpose, when it undei’took to devote that property to a use, from which it might reasonably expect to receive a profit for use in its charities, while at the same time it was maintaining an establishment, to which men of the class whose condition it was the purpose of the corporation to improve, might resort for board and lodging, was it acting outside of its implied power

In the light of all the circumstances, considering the purpose of the corporation, and the character of the property, and the use to which it had previously been put. we are of opinion that the question propounded must be answered in the negative. The proviso in the act of incorporation, that the annual income of the property of the corporation should not exceed forty thousand dollars, implies the right to devote its property to some income producing purpose. The Legislature, by the act of incorporation, also gave the corporation power to establish “newspapers, magazines and such other auxiliaries, in furtherance of its said object as may be deemed necessary.” It would seem that by virtue of this power to establish “other auxiliar ies,” the operation of a hotel on its own property previously devoted to such purpose and fitted for its continuance, where sailors and boatmen doing business on our western waters might seek accommodations, would not do violence to the principle that a corporation has the right of reasonable choice of appropriate, convenient and suitable means of exercising and enjoying the powers expressly granted it.

But few cases involving the implied powers of charitable corporations, or corporations of a kindred nature, seem to have arisen, doubtless because the number of such is small compared to corporations for profit, but in Dunn v. Agricultural Society, 46 O. S., 93, it was held that the power granted to those composing an agricultural society to “perform all such acts as they deem best calculated to promote the agricultural and household manufacturing interests,” conferred ample authority to hold fairs and charge for admission to them, and in Moss et al v. Hufeth Academy, 54 Tenn., 283, an educational corporation was held to have the power to borrow money for use in effecting the corporate purpose, the court saying, 1 ‘ the power might be fairly implied as a usual and appropriate means to accomplish the objects of the charter.”

We do not intend to decide that under other circumstances a charitable corporation, such as the defendant in error, would have the right to embark in the hotel business. We recognize the limitations placed upon the activities of corporations of this kind, and the views here expressed are based entirely upon the special facts before us in the evidence. We consider a further quotation from the syllabus of the case of The Central Ohio Natural Gas & Fuel Co. v. The Capital City Diary Co., supra, applicable to the situation before us:

“Acts of a corporation, which if standing alone or engaged in as a business, would be beyond its implied powers, are not necessarily ultra vires when they are incidental to, or form part of, an entire transaction, that in its general scope is within the corporate purpose. The validity of such a transaction is to be determined from its general character considered as a whole, rather than by segregation into individual facts, and each regarded as distinct from the others.”

If the transactions by which the groceries were furnished by the plaintiff in error to the defendant in error were to be held to be outside the implied powers of the defendant in error, there is another ground on which the defense urged should not be sustained. The contract sued on is an executed one. The groccries have been furnished to the defendant in error and used by it. In all the transactions arising out of the operation of the hotel considered as a whole, up to the time the groceries in question were furnished, the defendant in error has received a profit, $2,800 having been turned over to the society under the management of Fitzpatrick. It is claimed on behalf of the defendant in error that certain fixed charges such as interest, taxes- and water rent would wipe out this supposed profit, but these charges would have to be paid no matter how the property was used, and at any rate, there was evidence tending to show a profit arising out of the conduct of the hotel during the period from March 15, 1905, to September 1, 1908.

The defendant in error is, therefore, in the position of having profited by the enterprise, which it is now claimed was in excess of its corporate powers. It has received the fruihs of the contract between it and the plaintiff in error, but refuses to pay therefor.

The principle which we conceive should be applied in such a ease as this is stated in Larwell v. Hanover Savings Fund Society, 40 O. S., 274. We quote from the opinion, page 285:

“The tendency of the courts, based upon the strongest principles of justice, is to enforce contracts against corporations, although in entering into them they may have transcended their chartered power, when they have received the consideration and the benefit of the contract, and it seems to be now the well established rule, that when a contract, not illegal, has been executed and fully performed on the part, either of the corporation or of the other contracting party, neither will be heard to object that the contract and such performance were not within the legitimate powers of the corporation.”

See also Herrick v. Wardwell, 58 O. S., 308; Norwalk, etc., Bank v. Norwalk, etc., Co., 14 C. C., 1 (affirmed 60 O. S., 603); Bates v. Peoples, etc., Association, 42 O. S., 655; Hayes et al v. Gallon, etc., Co., 29 O. S., 340; Armstrong v. Karshner, 47 O. S., 276; Whitney Arms Co. v. Barlow, 63 N. Y., 62; Chester Glass Co. v. Dewey, 16 Mass., 94.

We think that the defendant in error, even though a charitable corporation, having received and consumed the goods of the plaintiff in error, under the circumstances and with the result detailed, should be estopped from asserting that its contract under which they were furnished was ultra vires.

We are of opinion, for the reasons announced, that the motion to direct a verdict should not have been granted, and the judgment of the court of common pleas is reversed and the cause remanded for further proceedings according to law.


source: Caselaw Access Project

license: Public Domain

text:
    SETTLEMENTS OF INDUSTRIAL INSURANCE POLICIES.
    Court of Appeals for Hamilton County.
    The Metropolitan Life Insurance Co. v. Oberst Burbank, Administrator of the Estate of James A. Mulvey.
    Decided, June 30, 1914.

      Life Insurance — Facility of Payment Methods Upheld, as to Industrial Policies — Action Gan Not he Maintained hy Administrator on a Policy Paid as Directed Therein.

    Owing to the great volume of insurance done by industrial insurance companies and the necessity for prompt settlement in order to efficiently carry out the purpose of insurance of that class, and also for the protection of the companies against claims which might develop during the course of the.legal administration of the estates involved, facility of payment provisions contained in such policies should be regarded with favor; and where it appears that payment -was made strictly within the terms of the policy and in good faith on the part of the company and the proceeds were applied to payment of the funeral expenses and an unpaid board bill of the decedent, a motion lies to arrest from the jury an action brought by the administrator on such a policy and a verdict should be directed for the defendant company.

      Robertson & Buchwalter and Theodora C. Jung, for plaintiff in error.

      William R. Collins, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.
   The action below was brought by Oberst Burbank, as administrator of James A. Mulvey, deceased, to recover $210 with interest and for an accounting, under a policy No. 42,660,077 issued by the Metropolitan Life Insurance Company upon the life of James Mulvey, November 8, 1909, then twenty years of age, on the payment ofweekly premiums of ten cents.

The language of the policy contained the following facility of payment clause:

“The company may pay the amount due under this policy to either the beneficiary named below, or to the executor or administrator, husband or wife, or any relative by blood or connection by marriage of the insured, or to any other .person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, or for his or her burial; and the production of a receipt signed by either of said persons shall be conclusive evidence that all claims under this policy have been satisfied. ’ ’

And for the purpose of naming the beneficiary and the relationship or situation he bore to the insured it contained the following language:

‘‘Name of beneficiary and relationship to the insured, Geo. Loyd, Guardian.”

The Metropolitan Life Insurance Company, as defendant, admitted the making of the policy and the death of the insured, and pleaded the payment of the entire amount due to George Loyd as the beneficiary named in the policy, and to one Mary E. Snider, who had united with said George Loyd in surrendering the policy of insurance and all the receipt books, and who claimed that the policy of insurance had been given to her by the insured as security for the payment of a board bill due and owing from him to said Mary Snider. It further stated that said George Loyd furnished proof that he was the beneficiary named in said policy of insurance, and that he and his wife had raised and brought up the said James A. lVIulvey to the age of fourteen years and provided for his necessary wants. And it further stated that said George Loyd furnished proof to said company that he had incurred expense for the burial of said insured, and that the company had issued its check, which was duly paid, for the entire proceeds of said policy of insurance amounting' to $210.40 to the joint order of George Loyd and Mary E. Snider, and that said check was paid to said parties.

Upon trial it developed that the insurance company had made payment, in accordance with the allegations of its answer, before any claim had been made upon it by plaintiff or any other claimant under said policy.

On submission to the jury a verdict was rendered in behalf of the plaintiff for $100.10, upon which a judgment was after-wards entered. Error is prosecuted in this court for the purpose of setting aside such judgment.

From a careful examination of the record it appears that after the death of the insured proof of claim was promptly filed with the company by George Loyd as the beneficiary named in the policy, and that Mary E. Snider, who had possession of the insurance policy and receipts, also claimed some interest therein on account of money due her from the deceased. Upon investigation by the insurance company the entire amount due under the policy was paid under a check drawn by said company in favor of George Loyd and Mary E. Snider. Out of this check the entire funeral expenses were paid to the undertaker, and the balance of the money was divided in a manner satisfactory to the parties between said George Loyd and Mary E. Snider.

Defendant in error concedes that if George Lloyd had been actually the legal guardian of James A. Mulvey, plaintiff could not maintain the suit. We do not understand that the statement in the policy showing “Name of beneficiary and the relationship to the insured” as “Geo. Loyd — Guardian” should be taken to mean that George Loyd was then the legal guardian of the insured, but rather that the relationship which he bore to the insured was somewhat similar to that of a guardian, and the policy gave that as the relationship of the parties.

Industrial insurance companies because of the great volume of business done by them, evidenced in this case by the high number of the policy in question, have usually by the form of their policies provided for payments thereunder in a manner that will promote prompt settlement to carry out efficiently the purpose of such insurance and at the same time to protect the company against other claims which might develop upon a legal administration of an estate. The amounts involved are comparatively small and the benefits to be derived largely depend upon a prompt payment, as the fund is usually necessary to provide for burial and other expenses incurred upon the emergency of death.

Questions arising under payments made under the facility of payment clause of insurance policies of a similar character have been frequently brought before the courts, but because of the small amount involved they are usually found in the reports of the lower courts.

In Thomas v. Prudential Ins. Co. of America, 63 N. E. (Ind.), 795, at page 796 the law is thus stated:

‘‘In Insurance Co. v. Schaffer, 50 N. J. Law, 72 (11 Atl., 154), it was said: ‘The purpose and object of this kind of insurance seemed to require the payment to be made in that way, and it should, in good policy, be upheld. Unlike the ordinary life insurance, small sums are provided by these industrial policies to be paid at once on proof of death and surrender of policy. " * ® The terms and manner of insurance contemplate speedy payment to the family of the assured, immediately after his death, to provide a burial fund, or to meet the expenses which, in such an emergency, must be incurred.’ Before actual payment by the company to some of the persons named in article second, an action might, perhaps, be maintained by the executor, administrator, or beneficiary, for the amount named in the policy; but when such payment has actually ficen made, by the express terms of the policy it operates as a complete discharge of the company from further liability.”

See also: Thompson v. Prudential, 119 App., Div. (N. Y.), 667; Thomas v. Prudential, 24 Atl. (Penn.), 82; Wilkinson v. Metropolitan, 63 Mo. App., 404.

Parties when not prohibited by law from so doing are at liberty to make their own contract, and within limits to provide what shall be evidence of certain facts. In this case the payment made by the company seems to have been directly within the terms of the policy. It was made to the beneficiary named in the policy upon the production of the policy and receipts for premiums paid thereunder, by him in conjunction with Mrs. Snider, who had a small claim for money advanced. The fact that the local agent of the company at the time of this payment insisted upon seeing that out of the amount so paid the undertaker’s bill and the funeral expenses should be paid, and the fact that for convenience the entire check was endorsed over to the undertaker and that he gave cheeks for the difference, or how that difference was divided between Mr. Loyd and Mrs. Snider, or that the undertaker appeared to have made a certain discount upon the funeral bill in favor of the beneficiary, can make no difference as to the validity of the payment, which was made in strict accordance with the terms of the policy.

There is nothing in the record to show any want of good faith on the part of the insurance company nor that its action in making the payment as it did under the policy was violative of the rights of any claims that were brought to its knowledge. The motion of the defendant to arrest the cause from the jury and direct for the defendant should have been granted.

The judgment is therefore reversed and judgment entered here for plaintiff in error.


text:
    DEATH OF THE INSURED BEFORE DELIVERY OF THE POLICY.
    Court of Appeals for Geauga County.
    The Columbus Mutual Life Insurance Company v. Mabel May Ford.
    Decided, February Term, 1914.

      Life Insurance — Contract for, Complete, When — Delay in Delivery of Policy — Where Without Excuse Does Not Invalidate the Contract— Notwithstanding Death of the Insured Occurred before Delivery Was Made.

    1. On the 23d day of June, 1910, upon tbe solicitation of the agent of the company, deceased made application for a policy of life insurance for $1,000 on the twenty payment life plan and paid the first premium to the satisfaction of the agent, who accepted the application and premium and agreed for the company that it would issue a policy for the amount stated and on the plan stated, if the medical examination of the applicant, to be made by the company’s medical examiner, should disclose that the applicant was in sound, insurable condition of health. This examination was made on the fourth day thereafter and the result' thereof reported to the company by its medical examiner. The company, finding the report satisfactory, issued a policy in conformance with the application and sent the same to its agent to be delivered to the insured. The agent finding the insured seriously ill with typhoid iever, refused to deliver the policy, and by direction of the president of the company returned the same to the company. The insured died four days after the receipt of the policy by the agent. Held: There was a completed contract between the parties for insurance and that the company was liable for the amount of the policy.
    2. Upon the application made as above stated, and payment of premium by note to the agent, the medical examiner of the company made examination of the applicant on the 27th day of June, but through his own neglect did not forward the company his report of such examination until the 7th day of July following, the same being received by the company July 8th, and the report being approved by the company a policy was issued to the applicant, as provided for in his application, and mailed to the agent on July 14th, to be delivered to the insured, but was not delivered owing to the then condition of the health of the insuréd. The insured was taken ill on the evening of the 7th of July and was visited by a physician, such physician being the medical examiner of the insurance company who had previously examined him for the company. On this visit the physician expressed the opinion that the insured was threatened with typhoid fever, of which disease he died July 18th. The insured had no information that the report of the medical examination had not been forwarded to the company immediately following the making thereof, which should have reached its office by due course of the mail the next day after the mailing of the same. Deceased said nothing to the physician, who was the medical examiner of the company, during the time he attended him in his last illness about making any report to the company of his illness nor did he otherwise notify the company of the same. Held: That all of the terms of the contract of insurance were agreed upon between the parties before the last illness of the insured and the fact that the insured did not give any direct notice to the company otherwise than to its medical examiner of the changed condition of his health after the evening of 'July 7th, did not avoid the policy and the company was liable thereon. •
    3. Where an insurance company seeks to avoid the payment of a policy of life insurance by_ reason of the fraudulent concealment of the changed condition of the health of the insured after the making of the application, such defense to be made available must be pleaded and such fraudulent concealment properly alleged in its answer.

      J. M. Sheets and R. S. Parks, for plaintiff in error.

      J. Buchwalter, contra.

      Norris, J.; Metcalfe, J., and Pollock, J., concur.
   This is a proceeding in error to reverse the judgment of the court of common pleas of this county, in favor of the defendant in error, on a policy of life insurance issued by plaintiff in error on the life of Moses Ford, husband of the defendant in error. The facts in the case as shown on the trial are substantially as follows:

On the 23d day of June, 1910, C. F. McFadden, agent of the insurance- company, went into the harvest field of Moses Ford and solicited him to purchase an insurance policy on his life, whereupon the said Moses Ford made application in regular form for a policy for the sum of $1,000, twenty payment life, and agreed with the insurance company, through its said agent, to pay for such policy ten and two one-hundreths dollars quarterly the first year and thirty-seven and seventy-nine one-hundredths dollars annually thereafter, and then gave his note to said agent for nine and fifty-one hundredth dollars, payable to the personal order of said C. F. McFadden, and did furnish him dinner and horse feed in payment of the balance of said first payment of said fifty-two one-hundredths- dollars, all to be in full of the first payment of ten and two one-hundredths dollars; that said agent in consideration of the premises agreed to insure said Moses Ford in the sum of $1,000 provided the medical examination of the physical condition of said Ford, to be thereafter made by the medical examiner of said company, should show that the said Moses Ford was in sound bodily health and an insurable risk under the rules of the company; that thereafter on the 27th day of June following the said Moses Ford was examined by Dr. Heely, the medical examiner of the company, ,and the result of such examination reported to the company and the same was accepted and approved by the company and subsequently a policy of insurance was issued on the life of Moses Ford for the sum of $1,000, made payable in case of his death to the defendant in error; that owing to the delay of the medical examiner, Dr. Heely, either through his going away to celebrate the Fourth of July or for some other reason, he did not send his report of the medical examination to the company until July 7th following, which fact does not appear to have been known to Moses Ford or the defendant in error.

The insurance company’s policy of insurance No. 1402 was executed to Moses Ford on the 14th day of July, 1910, and sent to McFadden, agent of the company, who received it on the 15th. day of July, 1910, and did not deliver it to Moses Ford but returned it to the company on the advice of the president, July 18th, 1910. McFadden received the policy for the sole purpose of delivery, but did not deliver it for the reason that at the time he received it the said Moses Ford was ill with an .acute malady —typhoid fever. The note given by Ford was returned to him the day of his decease, to-wit, July 19th, 1910. Proofs of death were made out in regular form. Moses Ford, it appears, was taken ill in the evening of July 7th, which illness developed into what subsequently proved to be typhoid fever; that in the evening of the 7th of July he called in his family physician, who happened to be Dr. Heely, the medical examiner for the insurance company. Nothing was said about the insurance policy, and so far as the record shows, Moses Ford had no knowledge that the report of his medical examination had not been promptly sent to the company on the day he -was examined and a policy issued to him thereon. Mabel May Ford, the beneficiary named in the policy, brought suit on the policy in the court of common pleas of this county making the necessary averments to recover thereon.

The .answer of the company, so far as the questions we shall discuss are concerned, was a general denial. The jury returned a verdict in favor of the defendant in error and judgment was entered thereon. The question as to whether or not there was a completed contract between the insurance company and Ford was before this court once before, and this court held that there was such completed contract, and our judgment in the case was affirmed by the Supreme Court without report.

Counsel for the insurance company in argument to this court insisted that it was the duty of Moses Ford at the time he was taken sick, on the evening of the 7th of July and thereafter during his illness, to notify the insurance company of the fact of such illness and change in his physical condition, and that because he did not do so there was such fraudulent concealment on his part that avoided the policy.

In answer to this it might be urged first, that no such issue is made by the answer; that if the plaintiff in error intended to rely upon such facts as claimed in this ease, it was its duty to set up same in its answer. Upon that question we think the case of Moody v. Insurance Company, 52 Ohio St., 12, is decisive and it is supported by the following authorities: Porl Blakely Company v. Hartford Insurance Co., 50 Wash., 664, reported in 97 Pac., 781; Taylor v. Modern Woodmen, 42 Wash., 389, reported in 84 Pac., 867, and see authorities cited by counsel on page 869; Bliss on Code Pleading, 3d Ed., Section 356a; Nash Pleading, 300, 382, 782; Kahnwiler v. Phoenix Insurance Co., 67 Federal, 483.

But, was there any fraudulent concealment in this ease, or, in other words, was it the duty of Moses Ford to notify the company after he was taken ill of the change in his physical condition? The rule relied upon by plaintiff in error is probably as well stated in Thompson v. Travelers Insurance Company, 101 N. W. (N. D.), 900, as anywhere in the following words:

“Where, pending negotiations for a contract of life insurance, a material change in the condition of the applicant’s health occurs, such as would influence the judgment of the insurer in accepting or declining the risk, the applicant is under obligation to make disclosure of the fact.”

Numerous authorities are cited by counsel in support of that rule. Perhaps the leading one is Piedmont & Arlington Life Insurance Company v. Ewing, 92 U. S., 377, the syllabus of which is as follows:

“While negotiations were still pending between an agent of the company and the applicant, touching the precise terms of a contract of insurance, the amount of the premium and the mode of payment, a friend paid the premium, but concealed from the agent the condition of the applicant, who was then in extremis, and died in a few hours. The agent, in ignorance of the facts, delivered the policy. Held: That no valid contract arose from the transaction.”

But, Mr. Justice Miller, on page 382, we think very clearly distinguishes that ease from the one we have here in the following language:

“This case differs very widely from those cited in which a delay in payment has been treated by the court as waived. All such cases proceed on the ground that a valid agreement as to the terms of the contract has been made.”

What part of the contract between Moses Ford and the insurance company still remained open? What, if any, negotiations between the parties were still pending and undisposed of as to the terms of the contract? The amount of the policy was agreed upon, the kind of policy was agreed upon, the amount of the premium was determined between the parties and was actually paid. The only question that remained open at the time the agent called upon Moses Ford in his harvest field was whether the condition of his health at that time was sufficiently sound to warrant the company in issuing to him a policy.

That question was disposed of within a few days by the medical examination made by the medical examiner of the company, and he was found to be in an insurable condition of health, so that when that examination was made the entire contract was concluded and closed and the minds of the parties met, and all that remained to be done was for the insurance company to issue the policy, which it did. This, we flunk, is settled in the case of Insurance Company v. Higginbotham. 95 U. S., 380, where the following principle is announced:

“Held: That the representations of the insured as to the condition of his health on the 1st of October, when he applied for the reinstatement of his policy, and paid the premium, were not continuous until the 14th of that month; and that the contract was consummated on the day when the premium was paid.”

See also DeCamp v. M. J. Mutual Life Insurance Company. 7 Fed. Cases, 313, case No. 3719, 3 Ins. Law J., 89, and in Southern Life Insurance Company v. Kempton. 56 Georgia, 339, we find a leading case on this subject. In the syllabus in the case it is said, referring to a ease similar to the one we have:

“In such a ease as this, the principle that any change in the health of the applicant between the time of the .application and of the issuing of the policy, would relieve the insurance company from consummating the contract, does not apply; the delivery of the agent, under the facts, was a consummation of the policy, and that, with the other facts proven, show a consummation of the contract.”

In Keim v. Home Mutual Insurance Company, 42 Mo., 33, also 97 Am. Dec., 291, it is said:

“It is laid down by Angell that when the negotiation for insurance is so far completed that nothing remains to be done but to deliver the policy corresponding with the terms and date of application, should a loss occur before the execution of the policy,a court of equity would relieve the assured. ’ ’ 1 Duer on Insurance, 66, Section 10.

In Baldwin v. The Chouteau Insurance Company, 56 Mo., 151. and 17 Am. Rep., 671, we find the following:

“In May on Insurance, Section 44, it is said that the agreement for insurance is complete when the terms thereof have been agreed upon between the parties, and the reciprocal rights and obligations of the insurer and the insured, date from that moment, without reference to the execution and delivery of the policy, unless these two elements are embraced within the terms agreed upon.”
“Where, after oral contract of insurance, the premium is accepted and the policy delivered, it relates back to the making of the oral contract, and the assured is not bound at the time of paying the premium and receiving the policy to voluntarily inform the insurer of the destruction of the property.” Worth v. German Insurance Co., 64 Mo., 583.

We also cite Gordon v. U. S. Casualty Company, 54 S. W., 98, a Tennessee case of 1889; Leichman v. Insurance Company, 44 L. J., C. P., 185, 32 L. T., 170; 23 W. R., 723, an English ease. See also Flint v. Ohio Insurance Company, 8 Ohio, 501.

We find none of the eases cited by counsel for plaintiff in error that conflict with the rule we have attempted to discuss. In Cable v. U. S. Life Insurance Company, in New York, 111 Fed., 19, the policy had a clause that it should take effect only upon payment of the first premium and “delivery of policy during my life time in sound health and insurable condition.” Cable had previously declined to accept the policy. In Mutual Life Insurance Company v. Pearson, 114 Fed., 395, it was provided in the policy that the insurance shall not take effect “until the first premium shall have been paid during my continuance in good health.” Pearson was taken sick January 6th. January 7th the first premium was paid, the company not knowing of his illness, and on January 8th, he died. The question is on demurrer, on equity jurisdiction of the court to cancel policy.

In Thompson v. Travelers Insurance Company, supra, the condition of the policy was that “this policy shall not take effect until the first premium is actually paid by the insured in good health. ’ ’ It is not claimed in this case that the assured was not in good helth at the time he signed the application or at the time he was examined by the medical examiner of the company. It is not claimed that there were any misrepresentations made by him at any time. In the light of the authorities above cited we do not think there was any fraudulent concealment on the part of Moses Ford. The headquarters of the company were in Columbus, Ohio. The time it would take to reach Columbus by the usual course of mail is less than twenty-four hours. Ford was examined on the 27th day of June. If the result of his examination had been reported to the company on the day it was made, it should have reached the company on the 28th day of June. This is shown by the fact that Dr. Heely’s report was mailed July 7th and reached the office of the company July 8th. Assuming if Dr. Heély had forwarded the application when he should have done so, on the 27th day of June, it should have reached the company’s office on the 28th of June, and the policy should and would have been issued and in the hands of Ford long prior to the 7th day of July, when, it is said, he was taken ill. As we have stated, he knew nothing of this delay. He had a right to assume that the policy had been issued and was in the hands of the agent for delivery to him. The premium had been paid and accepted and everything required of the assured had been done. To say that when he was taken ill on July 7th, long after the application for insurance and the medical examination had been made, it was then his duty to make additional disclosures to the company as to the condition of his health, we think is not supported by any authorities cited by counsel for plaintiff in error, but is opposed to all the authorities we have been able to find.

See on this question Hartford Protection Insurance Company v. Hamer, 2 Ohio St., 452, opinion of Judge Ranney, 472-473.

Again, the medical examiner was appointed by the company to ascertain and report the physical condition of the applicant, Moses Ford. He was the only representative of the company in that regard known to the deceased, so far as the record shows. Whatever disclosures as to the condition of his health required to have been made by him should have been made to the medical examiners. This is manifestly true at the time of the examination. On the 7th of July the medical examiner sent his report of the examination of Ford to the company. On the same day he visited Ford and found him threatened with typhoid fever and was thereafter his attending physician until his death.. It does not appear whether the deceased said anything to the doctor about his insurance policy, or of his making any additional report to the company in regard to his sickness, but what need therefor ? The doctor was the medical examiner of the company, and the direct representative of the company to ascertain and report the physical condition of Ford, and he knew better than Ford did the prognosis of his disease. Being the agent of the company to report as to the health of applicants for insurance in the company, and especially as to Ford’s health, we think his knowledge of Ford’s illness must be imputed to the company; that the company, must be held to know what their agent knew and failed to report.

The judgment of the court of common pleas will be affirmed.


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    JURISDICTION OF JUSTICE OF THE PEACE.
    Circuit Court of Cuyahoga County.
    M. Swee et al v. Louise Bregenzer.
    Decided, February 12, 1912.

      Appeal from Justice Court — Action for Money Had and Received on Rescinded Land Contract.

    A justice of the peace has jurisdiction of an action for money had and received, though that money vms had and received as part payment on a contract for the conveyance of real estate, defendant refusing to convey and plaintiff electing to treat the contract as rescinded; hence such action is appealable to the common pleas court.

      James Metzenbamn, for plaintiff in error.

      Halle & Geisner, contra.
    Niman, J.; Marvin, J., and Winch, J., concur.
   The plaintiffs in error sued the defendant in error in the court of a justice of the peace. The bill of particulars stated a cause of action for money had and received. A judgment having been rendered in the justice court against the defendant in error, she appealed the case to the court of common pleas. The petition filed in that court, after averring that the case came into the court on appeal, from the court of the justice of the peace, stated a cause of action in the following language:

“Plaintiffs, for their further cause of action, say, that on or about the 19th day of April, 1909, plaintiffs paid to this defendant the sum of one hundred ($100) dollars for and in consideration of the defendant promising and agreeing in writing, to convey to these plaintiffs a certain parcel of property. .
“Plaintiffs further say that said defendant received said sum of money, but has never conveyed said premises to these plaintiffs, and had instead, conveyed said premises to other persons, and has failed, neglected and refused to convey said premises to plaintiffs, or either of them, though demanded by plaintiffs.
“The plaintiffs further say that they have made demand of said defendant for said sum so had and received by this defendant of said plaintiffs, but that said defendant has wholly failed, refused and neglected to return said sum to said plaintiffs.”

The defendant in error filed a motion in the court of common pleas to dismiss the action, on the ground that the cause of action stated in the petition was on a contract for the purchase of real estate, and that the justice of the peace had no jurisdiction of such an action, and that the court of common pléas had no jurisdiction thereof on appeal.

This motion was granted, and by this proceeding in error we are asked to reverse the judgment of the court below in dismissing the action.

Section 10232 of the General "Code provides that justices shall not have cognizance of any action on contracts for real estate.

If the cause of action set forth in the petition is one on a contract for real estate, the court of common pleas would have no jurisdiction over it on appeal against the objections of the defendant, unless she expressly or impliedly waived her right to object.

The- identity of the cause of action stated in the petition with that set forth in the bill of particulars is clear. The latter in brief terms states a claim for money had and received, while the former alleges with greater detail the facts from which the law implies an obligation of the same character as that which was the foundation of the action in -the justice court.

The cause of action is not based upon any stipulation in the contract referred to in the petition. That contract, according to the allegations of the petition, is no longer subsisting. It has been rescinded by the defendant, and the plaintiffs, accepting that rescission, and recognizing that the contract has no longer any existence, sue to recover the money paid by them while it'was a subsisting contract. In such a case the law raises an obligation which may be enforced in an action as for money had and received. While it may be necessary for the plaintiffs to resort to the contract as evidence to establish their right to recover, the action itself is not on the contract. In these views we are supported by Halloway v. Davis, Wright, 460, the syllabus of which reads:

“Where money has been paid on a contract which has been rescinded, or put an end to, or which the defendant has refused to perform, it may be recovered back in an action for money had and received.”

It was also held in Middleport Woolen Mills Co. v. Titus, 35 O. S., 253, as follows:

“Where money has been paid on a contract which has been subsequently rescinded, and the repayment of the money is the only thing remaining to be done, a petition for money had and received is 'sufficient; but while the contract is subsisting the action can only be brought on the agreement.”

See also English et al v. Brooks, 4 O. D. Rep., 43; Newman v. McGregor, 5 Ohio, 349; Brown v. Timmany, 20 Ohio, 87.

It follows from the conclusion stated as to the nature of the cause of action set forth in the plaintiffs’ petition, that it was one which the justice of the peace had jurisdiction, and being in the court of common pleas on appeal, that court had jurisdiction, and the motion to dismiss should not have been granted.

The judgment of the court of common pleas is reversed and the cause remanded for further proceedings according to law.


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    INJURY FROM FALL INTO A DANGEROUS AND LONG NEGLECTED HOLE IN BOARD WALK.
    Circuit Court for Lucas County.
    County Commissioners of Lucas County and County Commissioners of Wood County v. Claude D. English.
    Decided, June 29, 1912.

      Negligence — Duty of One Using a Wallt to Exercise Ordinary Care— Regardless of Other Matters Occupying His Mind — Whether Such Care Was Used is a Question for the Jury.

    1. The fact that a telephone lineman was performing a legitimate duty in looking up and closely watching the telephone wires to see whether they touched each other when swayed by the wind, did not excuse him from exercising ordinary care as to where he stepped and the condition of the walk over which he was passing; and where one so engaged stepped into a dangerous hole and was severely injured, a finding by the jury under proper instructions by the court that he was exercising proper care at the time and the verdict and judgment based thereon will not be disturbed by a reviewing court.
    2. Exhibits which were offered in evidence and as to which a witness was examined and cross-examined and which were shown to the jury and referred to by counsel on both sides as being in evidence, will be regarded by a reviewing court the same as if formally offered in evidence although not marked as exhibits in the case.

      Holland C. Webster, Prosecuting Attorney of Lucas County, Lewis E. Mallow, Assistant Prosecuting Attorney of Lucas County, and Charles Hatfield, Prosecuting Attorney of Wood County, for plaintiffs in error.

      Edgar M. Flowers and Marshall & Fraser, contra.
    Richards, J.; Kinkade, J., concurs; Wildman, J., not participating.
    Error to the Court of Common Pleas of Lucas County.
   In the court of common pleas Claude D. English recovered a verdict and judgment jn the amount of $7,500 against the county commissioners of Lncas county and the county commissioners of Wood county for personal injuries claimed to have been suffered by him by reason of the negligence of the defendants. The injury occurred on January 3, 1911, between 4:30 and 5 o’clock p. m., as plaintiff was walking on the highway nearing the approach on the Wood county side of the bridge crossing the Maumee river at the village of Maumee. The dividing line between the two counties is the center of the river at the place where this bridge is constructed, and the bridge and its approaches appear to have been constructed and maintained by joint action of the boards of county commissioners- of the two counties. The level of the bridge is about eight feet above the level of the county road on the Wood county side of the bridge, and the bridge proper is reached by a sloping approach constructed of earth. Along the up-river side of the bridge a wooden sidewalk or approach is constructed, perhaps twenty feet in length, being built over the up-river slope of the bank of earth. Several'of the planks of which this- walk was constructed were missing on the occasion of the injury, and the approach to the bridge proper had been defective in that respect for a long period of time, some witnesses stating it as long as two or three years.

The plaintiff was a telephone lineman and upon the occasion of his injury was in the performance of his duty, walking along under -the wares which were strung on poles, the wires when they reached the bridge being strung on arms across the bridge. Trouble in the transmission of messages had been experienced and he was watching the wires to ascertain whether, in the high wind that was blowing, the wires were being blown together so that they touched and thereby interfered with the use of telephones. Snow and sleet were falling at the time, and it was growing dark so that he could, with difficulty, see the wires but with the purpose mentioned, he was walking under the wires and approached the bridge. He reached the sidewalk where the planks were missing, stepping into the hole and falling in such a manner as to be very seriously injured. The hole into which he fell was several feet square and perhaps ten inches deep at its shallowest place, growing much deeper at the other side by reason of the sloping embankment over which the walk had been constructed. The stringers under the walk were two inches thick and ten inches wide, and were placed edgewise, being built of this heavy material for the purpose of supporting the walk along the side of the sloping embankment.

It is contended by plaintiffs in error that the verdict is excessive and is not sustained by sufficient evidence, and that the court erred in not directing a verdict for the county commissioners, and in overruling a motion for a new trial, and that the judgment should be reversed by reason of misconduct of plaintiff’s counsel during the argument of the case in the trial court.

It will not be necessary to dispose separately of all the claimed grounds of error. The case merits and has received a very careful examination of the entire record. Some conflict exists in the evidence as to the extent and permanency of the injuries suffered by the plaintiff, and much expert' evidence was introduced bearing upon that matter. The evidence is such that a jury would be entirely justified in finding the injuries to be permanent, and of a very serious character. We do not feel justified in disturbing the verdict on the claim that it is excessive, nor are we able to find from the record that the verdict is not sustained by the evidence. Much insistence is placed by counsel for the county commissioners on the claim that the plaintiff was guilty of. contributory negligence, directly producing the injuries suffered by him, in that he was following the wires with his eyes instead of watching the walk in front of him, as he proceeded toward the bridge. He was, of course, in the performance of a legitimate business, but was not relieved thereby from the duty to exercise ordinary care under all the circumstances of the case. Whether he did do so was left- fairly to the jury, under appropriate instructions1 from the trial court, and we do not, therefore, feel at liberty to disturb the verdict on the ground that it is not sustained by sufficient evidence. It may be noted that no doubt whatever exists that this defect was . one which was extremely dangerous to pedestrians, and the walk had clearly been in this defective condition for a long period of time so that the defendants had or should have had, in the exercise of ordinary care, full notice of the same.

Another ground upon which it is sought to have the judgment reversed is the claimed misconduct of counsel for plaintiff in the argument of the ease to the jury. It appears from the bill of exceptions that a witness, named Dr. Rhonehouse, had been subpoenaed on behalf of the plaintiff, and was not used by him, and that later this witness was used by the defendants, and .upon his attempted cross-examination by counsel for the plaintiff, certain of his evidence was excluded as not being a proper examination at that stage of the case. This exclusion of his evidence occurred by reason of the objection of counsel for the county commissioners. These facts were alluded to by counsel for the plaintiff in his argument to the jury, to which body he propounded the question “Who is responsible for him not testifying?” Counsel was thereupon stopped by the court but proceeding further stated that if counsel for the defendants had not objected, Dr. Rhonehouse would have answered. T¡he court stopped any further reference to this matter, and it nowhere appears in the record that the jury were informed what the testimony of Dr. Rhonehouse would have been if he had been allowed to answer. It does appear that he had been subpoenaed by the plaintiff and placed upon the .witness stand by the defendants. It further appears that he had treated the plaintiff as a physician for some considerable time following his injuries. The orderly administration of justice would have been better served if counsel had omitted any reference to this matter in his argument to the jury, but no prejudicial error resulted from what was- said.

We have examined this ease and passed upon the material assignments of error as if the bill of exceptions contained all of the evidence. It may be doubted, however, whether the condition of the record is such that we would be entitled to pass upon the weight of the evidence, by reason of the fact that certain exhibits referred to during the trial are not attached to the bill. Much evidence was offered relating to certain X-ray plates taken of various portions of the plaintiff’s body by a witness, Harry W. Dachtler, who describes his profession as that of a Roentgenologist. He had taken numerous X-ray pictures, some at the request of the plaintiff and some for the defendants, and while upon the witness stand and under examination in chief by counsel for plaintiff, stated these facts and referred to the plates taken at the request of the plaintiff as Nos. 5732, 5733, 5734 and 5855. He then stated that he had plates which he took for the defendants but did not have them with him. Counsel for plaintiff then said “We offer those plates in evidence.” If the record stopped at this point, some doubt might well exist as to the plates referred to in the offer made by counsel for plaintiff. The cross-examination of the witness, however, was immediately commenced, and during that cross-examination at various places the plates taken upon the request of the plaintiff were referred to as being in evidence and were shown to the jury, who examined the same by means of an illuminating box with lights behind a ground glass, for the purpose of having a more accurate and thorough examination. This witness, after having being fully qualified as a Roentgenologist testified in detail as to the facts shown by these plates, and the bearing they had upon the extent of the injuries suffered by the plaintiff and the condition of his body. He was also permitted to state his opinion on these matters. The plates thus became evidence of a very material character, and we think in view of the fact that the plates taken at the request of the plaintiff were referred to by counsel for both sides as being in evidence, and shown to the jury and examined by them, they must be treated as if formally offered in evidence although not marked as exhibits in the case. While the absence of these exhibits would perhaps prevent this court from considering the question of the weight of the evidence, we have, as already stated, examined the entire record and find no prejudical error manifest therein.

The judgment of the court of common pleas will be affirmed.


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    POSSESSION OBTAINED OF A DEED UNDER. FALSE PRETENSES.
    Circuit Court of Cuyahoga County.
    J. A. C. Golner v. State of Ohio.
    Decided, February 13, 1912.

      Criminal Law — Indictment—Inconsistent and Repugnant Counts — Obtaining Property Under False Pretenses — Deed of Farm Without Possession Obtained — Cross-Examination of Accussed.

    1. Three counts in an indictment for obtaining property under false pietenses are not inconsistent or repugnant, the first of which charges that it was falsely represented that Snyder owned property on the lake shore east of Cleveland, the second that Pollock owned property on the lake shore east of Cleveland and the third that Snyder and Pollock jointly owned certain property, describing it, on the lake shore east of Cleveland, the title being in Pollock with authority from Snyder to convey.
    2. The crime of obtaining property under false pretenses is made out, if the property obtained unlawfully under the false pretenses is a deed selling and conveying a farm to another, though possession of the farm was never surrendered by the prosecuting witness.
    3. The cross-examination of a defendant in a criminal case who. offer? himself as a witness, as to shady transactions which the questions assume he was connected with, such cross-examination being solely for the purpose of testing his credibility, is limited only by the sound discretion of the court, and a judgment will not be reversed for permitting such cross-examination, unless it appears from the record that such discretion was abused to the prejudice of the accused.

      Wesienhaver, Boyd, Rudolph & Brooks, for plaintiff in error.

      J. A. Cline and W. D. Meals, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
   Plaintiff in error was convicted of obtaining property under false pretenses from one E. AY. Reeves, who was tbe owner of a farm of 168 acres in Breebsville township, Cuyahoga county, Ohio.

AYhile numerous false representations are alleged in the indictment to have made and to have induced Reeves to part with title to his farm, only three of them were submitted to the jury under the charge of the court. They are as follows:

“That the said Arthur L. Snyder was then and there the owner of a valuable tract of land which had a frontage on the shore of Lake Erie east of the city of Cleveland, Ohio; that said Arthur L. Snyder had then and there paid for said real estate east of the city of Cleveland, Ohio, the sum of more than $10,-800; that said Arthur L. Snyder had then and there a good and lawful title to said real estate east of the city of Cleveland, Ohio, on the shore of Lake Erie, in his own name.
“That.said F. Pollock was then and there owner of a valuable tract of land which had a frontage on the shore of Lake Erie, which real estate was situated east of the city of Cleveland, Ohio; that said F. Pollock had then and there paid for said real estate east of the city of Cleveland, Ohio, on the shore of Lake Erie, the sum of more than $10,000; that said F. Pollock then and there had a good and lawful title to said real estate east of the city of Cieveland, Ohio, aforesaid, in his own name.
“That certain real estate situated in Willoughby township, Lake county, Ohio, and known as part of land allotted by the Willoughby Land & Improvement Company, in tract No. 16, and being lots Nos. 67, 68, 69, 70, 71, 72, 131, 132, 133 and 136, in tract No. 16 of said company’s survey, and recorded in Lake county, Ohio, records of plats, was then and there located on the shore of Lake Erie and was worth the sum of $10,000 and was jointly owned by said Arthur L. Snyder and F. Pollock and that the title to the same was in the name of F. Pollock and that F. Pollock had been authorized by said Arthur L. Snyder to convey the same by deed to E. W. Reeves; that scows had been sunk in Lake Erie off the shore of and near real estate which was owned by the said Arthur L. Snyder; that additional land was forming in Lake Erie by reason of said sunken scows and that said land which was forming would be joined to the land owned by said Arthur L. Snyder. ’ ’

It will be noticed that it is not alleged that the land on the shore of Lake Erie represented to be owned by Snyder was the same land represented to be owned by Pollock nor is it alleged that the ten lots in the Willoughby Land & Improvement Company’s allotment were represented to be the same land as that previously represented as Owned by Snyder or by Pollock.

On the trial it was shown in evidence that Golner, having opened negotiations with Reeves with reference to his farm, introduced Snyder to him and the latter, by arrangement with Golner, took Reeves out in an automobile to stop 130% on the Shore Line Electric Railroad, and there pointed out to him ten lots, five of which bordered the lake for five hundred feet, and falsely represented to Reeves that he owned the said lots.

Snyder also told Reeves that he had paid $10,800 for said lots, and he proposed to give Reeves a mortgage on them in payment for the equity in Reeves’ farm, the latter being under mortgage.

Negotiations proceeded for several days, Golner being present and participating in some of them, but Snyder became apprehensive of the situation he was getting into and dropped out of the negotiations.

Thereafter Golner introduced Reeves to Pollock, representing that while Snyder owned the lots, the title was in Pollock, and Pollock was authorized to convey, and Reeves agreeing to the deal, Pollock gave him a mortgage on the ten lots therein described, representing that they were the lots on the lake front at stop 130%, whereas in fact they were ten miles from there and not on the lake front.

Reeves delivered the deed of the farm to Pollock and received the mortgage in question securing certain notes which, it was agreed between Golner and Pollock, should be endorsed by Snyder, but Snyder never endorsed them.

In this state of the evidence it is claimed that there is' a repugnancy in the representations relied upon for a conviction, not apparent on the fact of the indictment; that the representation that Snyder owned the lots at stop 130% is repugnant to the representation that Pollock owned the same lots, and that this repugnancy became material and developed prejudicial error in the charge of the court, for the court charged more than once that the jury might convict if they found any one or more of these representations had been made.

This claim of error is somewhat difficult to grasp and express. but may be clearer, perhaps, if stated as follows:

‘ ‘ The court might properly have charged that the jury might convict if it found that the representation had been made that Snyder owned the lots, or if it found that the representation had been made that Pollock owned the lots, but it could not convict if it found that both representations had been made, because they are inconsistent and repugnant; both can not be true; one contradicts the other.”

One answer to this is that the jury might well have found from the evidence that the representations were not as to concurrent ownership by Snyder and Pollock. It was first represented that Snyder was the owner and thereafter that Pollock was the owner. There is nothing inconsistent in such representations, if it was represented that meanwhile title had passed from one to the other, and said suggestion is borne out by the evidence.

Nor can it be said that if the jury should find that it was represented that Synder once owned the lots and thereafter Pollock owned them, that the representation that Snyder owned them ceased to be material and would not warrant a conviction, for there is another aspect of the representation regarding Snyder’s ownership — such representation tended to mislead Reeves into a belief that he was dealing -with men of substantial means and evident financial responsibility. He might properly conclude that though Snyder had conveyed the lots to Pollock, the latter had paid value for them which would leave Snyder worth as much in money as he had been worth in land, and he was to have Snyder’s endorsement on the notes.

This thought becomes more important in consideration of the next assignment of error.

It is claimed that the indictment does not charge Golner with the crime which the record show’s was committed by him.

On this proposition it is argued by counsel for Golner that the only false representation wdiieh had a decisive influence upon the mind of Reeves and caused him to part with his property 'was the representation that the lots described in the mortgage were, in fact, the lots located at stop 130% wdiieh had been pointed out to him by Snyder; that it was this belief which caused Mm to part with his title; that without this belief he would not have parted with it, and this false representation is nowhere charged in the indictment, for the indictment alleges only that it was represented that the lots described in the mortgage were on the lake front, and not that they were at stop 130% and were the same lots pointed out by Snyder.

There is some degree of sophistry in this argument.

We can not know with certainty that only one of the many false representations made to him had a decisive influence upon the mind of Reeves. It may have been and it probably was all of them together which brought about that state of mind which induced him to part with his title.

It is but a matter of evidence that the land represented as owned by Snyder, and pointed out to Reeves at stop 130% and then represented as owned by Pollock, is the same land as that which was represented as being lake front property and included in the mortgage.

It was alleged in the indictment that it was represented that Snyder was the owner of a valuable tract of land, which had a frontage on the shore of Lake Erie east of the city of Cleveland. It was shown in evidence that the land Snyder was represented to own was at stop 130%.

It was alleged in the indictment that Pollock was the owner of a valuable tract of land which had a frontage on the shore of Lake Erie, which real estate was situated east of the city of Cleveland. It was shown in evidence that the land Pollock was represented to own was at stop 130%.

It was alleged in the indictment that the ten lots described in the mortgage were represented as located on the shore of Lake Erie. It was shown in evidence that the particular place on the shore of Lake Erie where they were represented as located was at stop 130%.

There was proof, then, of each representation, and, if the indictment alleges a crime, that crime was proved.

As already said, the representation as to Snyder’s ownership of lake front property was not only material as connecting his representation with Reeves’ mistake in supposing the land described in the mortgage was on tbe lake front, but as inducing him to believe that Snyder was a man of financial responsibility and so, that he could trust him and those who claimed to represent him and be interested with him.

The same may be said of the representation as to Pollock’s ownership of the land.

As to the representation that the land described in the mortgage was upon the lake front, that was material, for it is a matter of common knowledge that lake front property near the city has an increased value by reason of said frontage. Its exact location át stop 130% was not so material, and we can not say that Reeves would not have been induced to part with his property if the land he supposed was described in the mortgage had never been pointed out to him, but all that had been represented was that it had a lake frontage.

The questions thus far discussed cover many of Golner’s requests to charge which the court refused to give,' and reference will therefore be made only to those requests which involve other questions. '

By request number 17 the court was asked to charge that representations regarding the lands described in the mortgage, so far as they related to the joint ownership of said lots and the authority of Pollock from Snyder to convey said lots to Reeves, were wholly immaterial because it is not denied in the indictment that Pollock had title to said lots, and full'authority to convey the same, though the truth of the representation as stated in the verdict is'negatived in the indictment.

The representations of joint ownership of Snyder and Pollock and Pollock’s authority to convey are not wholly immaterial, for they connect up with the former representations thát Snyder was the owner, and make plain the whole scheme of deception planned by Golner, one inducement and one representation naturally leading on to another, the whole having such consequence as to induce Reeves to part' with his property, but being so insidiously' interwoven that we can not- say that any one representation would have induced Reeves to act,- or that lie •'would-not have acted if any one' representation had not been made. This inquiry was properly put before the jury for its final answer.

Pollock’s sole and undivided ownership of the lots described in the mortgage needed no denial, for no such 'representation had ever been made to Reeves. If it had been made it would undoubtedly have made him suspicious, for he had previously been told a different story.

By the twenty-second and twenty-third requests the jury’s attention was called to the defendant’s claim that Reeves never parted with the possession of his farm.

As the charge in the indictment was only that by reason of the false pretenses, the defendant unlawfully obtained from Reeves a deed of general warranty, selling and conveying his farm to Pollock, these requests were properly refused. State v. Toney, 81 O. S., 130.

The defendant twice submitted his requests to charge, once before argument and again, the same requests, after argument.

The court refused to give the requests before argument though some-of them were given after the argument.

We are content to let this question rest upon the decision in the case of Umbenhauer v. State, 4 C. C., 378, where it was held:

‘ ‘ Upon the trial of a criminal case it is not error for the court to refuse to instruct the jury, at the request of the defendant, upon matters of law, before the argument begins.”

That case was affirmed by the Supreme Court without report, 23 W. L. B., 167.

The defendant submitted himself as a witness in his own behalf and was cross-examined by the prosecuting attorney; in that cross-examination he was asked many questions with regard to a shady transaction about some Beach City bonds, with which the state tried to connect him. Most of his answers were denials but it is claimed that it was wrong to permit inquiry as to this collateral matter, for it amounted to an attempt to prove another distinct offense, for the purpose of raising the inference of the prisoner’s guilt of the particular crime charged, which would be -prejudicial error, as explained in the case of Hanoff v. State; 37 O. S., 178, at page 180.

A reading of the remainder of said opinion, however, shows that such examination of a witness, whether defendant or not, •for the purpose of testing his credibility, rests in the sound discretion of the court, and a judgment will not be reversed for permitting such cross-examination, unless it appears from the record that such discretion has been abused to the prejudice of the party. - . .

There was no such abuse of discretion in-this case; such answers as Golner gave to questions asked him probably tended to shake the confidence of the jury in his credibility and were legitimate for that purpose.

The weight of the. evidence in this case is so overwhelming as to the guilt of plaintiff in error, that that question has not been raised. in this court, , The. several' technical objections raised by his counsel have not been without difficulty, but, being- of opinion that there is no reversible error in the record, the judgment is affirmed. • ■ • '


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    CLAIM FOR. SERVICES RENDERED BY A MEMBER OF THE FAMILY.
    Circuit Court for Lucas County.
    Charles A. Brown v. Harriet E. Farr.
    Decided, February 10, 1912.

      Pleading — Defects in, Not Fatal to Recovery of Judgment, When— Indentured Girl Seelcs to'Recover for Services Rendered After She Reached Her Majority — Contracts Express and Implied — Proof Upon Which Contract Must Rest — Charge of Court.

    1. A judgment will not be reversed solely by reason of a defect in the petition in failing to aver that the amount claimed is due, where issues have been joined and the cause tried on its merits and it appears from the record that the defective petition did not result in prejudice to.the adverse party. ■ •
    2. Where it is clearly apparent that the plaintiff was led to sign the release relied upon by the defendant through a misunderstanding as to its character, or it appears that the instrument signed was a mere nudum pactum, it is not necessary to set the instrument aside by a sepárate action nor to demand a cancellation of such release by a separate cause of action.
    3. No contract to pay for services can be implied where a family relationship existed between' the parties, but such a contract must be established by clear and unequivocal proof; and this rule is as applicable to an action against the head of a family during his lifetime as against his administrator after his death.

      Ray & Cordill, for plaintiff in error.

      James H. Southard, contra.
    Richards, J.; Wildman, J., and Kinkade, J., concur.
    Error to the Court of Common Pleas of Lucas County.
   The original action in the court of common pleas was brought by Harriet E. Parr to recover of Charles A. Brown upon two causes of action set forth in her petition. In the first cause of action she claimed a balance of $5.50 upon a promissory note executed1 by Brown to her. In the second cause of action, she claimed a sum of about $750 for services claimed to have been rendered by her to Brown.

It appears from the evidence that Harriet E. Farr had been an inmate of the Children’s Home near Maumee, and that she was indentured to Brown until she was eighteen years of age, at which time he was to pay her the sum of $50, and that she continued to reside in the family of Brown as a member thereof for some years after she became of age. Upon her arriving at the age of eighteen he executed to her a note in the sum of $50 upon which he subsequently paid $10, and upon September 25, 1909, he paid to her the sum of $44.50. The trial in the court of common pleas resulted in a verdict and judgment in her favor in the sum of $313.50. At the time the payment of $44.50 was made, she signed an instrument which she delivered to Brown, reading as follows:

1 ‘ Swanton, Ohio, September 25, 1909.
“Received of Charles A. Brown the sum of fifty ($50.00) dollars, the same being in full payment and settlement of note given by him to me of date of March 26, 1908, and said sum is also in full payment of any and all claims of every kind and description which I have against him,
“Miss Harriet E. Farr.”

Miss Farr alleges in her reply after quoting the above instrument that the defendant desired to settle the balance of the note and that he represented to her that he had seen her attorney and that her attorney sent word that she should accept the balance due on the note, and that she should sign the said paper. She avers that Brown said to her that said paper receipt related to, covered and was intended to settle said note, and such matters as grew out of their indenture agreement and nothing else, and that a receipt was necessary because the note was lost. She further avers that it was not true that her attorney had directed that she shouíd sign the paper, but that he had sent no directions whatever, and that she was induced to sign the instrument through the false and fraudulent representations of said defendant, communicated to her as just stated.

Upon the impaneling of a jury in the common pleas court, the defendant below objected to the introduction of any testimony for the reason that the pleadings showed that there was a settlement between the parties and a contract of settlement entered into and set up in the answer and admitted in the reply, and that this contract must stand until set aside by a court of equity. The defendant upon the overruling of that motion, further moved the court for judgment on the pleadings which motion was also overruled, and exception taken to the action of the court upon both motions.

The petition contains no averment that the amount of $5.50 'which is claimed upon the promissory note was due;- neither is it averred in the petition that the amount claimed in the second cause of action for services was due, but the second cause of action does contain the averment that the defendant is indebted to her upon the claim therein set forth. The reply contains an averment that she had presented to .Brown a statement of the amount due her for services and that he was not disputing that she was entitled tó receive from him the amount due on the note.

In’.view of these allegations and of the language of the Supreme Court in Yocum v. Allen, 58 O. S., 280, and also in the case of Dayton Insurance Co. v. Kelly, 24 O. S., 345, we think that the judgment ought not to be reversed by reason solely of the defects in the pleadings just stated, and that the action of the court in that respect was not such prejudicial error as to require a reversal.

It is insisted, however, that the instrument quoted above, if its validity is to be questioned at all, should be questioned by appropriate allegations contained in the petition rather than in the reply. The instrument itself is plainly in form something more than a receipt and amounts, without doubt, to a contract as well as a receipt. See Jackson v. Ely, 57 O. S., 450; Cassilly v. Cassilly, 57 O. S., 582. The rule by which it is to be determined whether’an instrument of the character set forth must be assailed in the petition, or whether it may be sufficient to set it up in the reply, depends upon whether it is a void instrument or one which is voidable only. The principle of law controlling is laid down by the Supreme Court in Perry v. O’Neil & Co., 78 O. S., 200. A careful examination of the language of the reply leads to the conclusion that if Miss Farr believed the statements to be true, she was led to sign the instrument because she believed it was one of a different character from the one which it was in fact. It is perfectly apparent that she is not a woman of the keenest business sagacity, and that she acted upon the supposition that the instrument was nothing other than a receipt for the amount due upon the note. Such being the case, the instrument would be absolutely void and it would not be necessary to set the same aside either by a separate action or by a separate cause of action in this case, before maintaining an action to recover the amount claimed by her.

An additional reason exists which is sufficient to justify us in reaching that conclusion. The amount actually paid was $44.50 and . beyond all question, at least that amount remained due upon the promissory note and was not in any way in dispute between the parties. It was a liquidated sum and nothing having been paid upon the promissory note, in addition to the amount conceded, no consideration existed for a release of the amount claimed to be due for services. The instrument, therefore, in so far as it purports to be more than a receipt, would be absolutely void. It would be what lawyers term a nudum pactum. See Seeds, Grain & Hay Company v. Conger, 83 O. S., 169. We find no prejudicial error to have been committed-by tbe trial court in overruling tbe motions made by tbe defendant below for judgment upon the pleadings and for the exclusion of all.evidence.

Upon the trial of the ease a .large amount of- evidence was introduced pertaining to the relations existing between the plaintiff below and the family of Charles A. Brown, and to the services performed by her. From the evidence, it appears that from the time she went to live in the family, she continued to reside in the family as a member thereof. She alleged in her reply that she had lived in the family since childhood and that the defendant had occupied the position of a father toward her. The case as'made by the allegations contained in the second cause of action, and the pleadings subsequent thereto is one where during the existence of a family relation one member has performed services for the head of the family, and seeks to -recover therefor. In the general charge of the court, we find this language:

‘£ The burden is upon the plaintiff as to both causes of action, to prove by a preponderance of the evidence the allegations of her first and second causes of action before she can recover upon them. * * * Before she can recover on the second cause of action, she must prove that there was an agreement between herself and defendant,- either express or implied, that she should perform services and that she should be paid for such services.”

In view of the circumstances shown by the evidence in this case as to a family relationship existing between the parties to the case, it was manifest error to instruct the jury as was done in the language above quoted. It has long been the established rule in cases of this character that no contract to pay for services rendered would be implied, and that before a recovery can be had, it must appear from the evidence that an express contract to perform the services and to pay for the same existed. The language quoted would authorize a recovery in the absence of an express contract. Again, the instruction permits a recovery if the plaintiff’s case on the second cause of action is established by a preponderance of the evidence only. This language is in direct conflict with the rule laid down by the Supreme Court in Hinkle v. Sage, 67 O. S., 256, 262. In the ease cited the principle is announced by our Supreme Court that to entitle a plaintiff to recover under such circumstances, the contract must be established by clear and unequivocal proof. It, is true that the case of Hinkle v. Sage was an action brought against the est.ate of a decedent, and in that respect it differs from the ease now under consideration. But the language used by the court in the course of the opinion', and also as found in the syllabus is so broad as to embrace an action of this1 character, whether brought against an executor or administrator or against the head of a family during his lifetime. Were it not for this general language, the members of this court might not be agreed that the rule requiring the plaintiff’s case to be established by clear ana unequivocal proof should be applied except when the action is against the estáte of a deceased person. Much argument may be adduced upon both sides of the question, but we are convinced, in view of the-language of this decision, that the rule in our state is equally applicable whether the action be against an administrator or between members of a family still living. A very interesting discussion of this and some other questions may be found in an exhaustive note contained in 11 Lawyers Reports' Annotated (New Series), 873-913. Speaking of the degree of proof required thé annotator upon page 902 states the rule as follows

' “The emphatic language used is probably to be accounted for, in some measuré át least, by the fact that, in the great majority of instances, it was used with relation to claims against the estates of decedents. But, as the statements of the courts are perfectly general, it can not be assumed that the standard specified was regarded as being appropriate only in cases involving such claims.” ' ' •

For the error indicated, prejudicial to the rights of the plaintiff in error, the judgment will be reversed and the cause remanded for further proceedings.


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    INSPECTION OF CORPORATION BOOKS BY STOCKHOLDER..
    Circuit Court of Cuyahoga County.
    The American Shipbuilding Co. v. Frank P. Whitney.
    Decided, February 12, 1912.

      Corporations — Foreign—Stockholder’s Right to inspect Records and Papers.

    A stockholder of a foreign corporation which is doing business in Ohio, after having obtained the right to do so by complying with the laws which provide how a foreign corporation may do business in this state, and has records and papers within the state, has all the rights of inspection of such records and papers as a stockholder in a domestic corporation has.

      Griswold & White and Thompson & Him, for plaintiff in error.

      Hoyt, Dustin, Kelley, McKeehan & Andrews, contra.
    Marvin, J.; Winch, J., and NiMAN, J., concur.
   The American Shipbuilding Company is a corporation for profit, organized under the laws -of the state of New Jersey. It is doing business in Ohio, having obtained the right to do so by complying with the laws which provide how a corporation, organized under the laws of another state, may do business in this state. It has property, offices, records and papers here.

Frank P. Whitney is a stockholder in said corporation. ITe resides here. He has demanded of the officers of said corporation an inspection of certain records and papers of the corporation now in Ohio. This inspection has been refused. His demand for such inspection is not accompanied by any reason given by him for such inspection except that he is a stockholder in the corporation.

He brought a suit in the court of common pleas seeking an injunction against said corporation and its officers to prevent their refusing him this inspection. The corporation bases its refusal upon the ground that until the stockholder shall show a reason for this inspection, he is not entitled to it. The court of common, pleas decided in favor of the stockholder and granted the injunction, and the proceeding here is for the purpose of determining whether such order of the court shall be sustained.

It is provided by Section 8673 of the General Code of Ohio, that “the books and records of such corporations, at all reasonable times, shall be open to the inspection of their stockholders. ’ ’ This section is found in the chapter providing for the organization and conduct of corporations for profit in Ohio. There is no doubt, therefore, that if this were an Ohio corporation, the stockholder would be entitled to the examination. This is absolutely settled by the ease of The Cincinnati Volksblatt Co. v. Hoffmeister, 62 O. S., 189. The syllabus of this case reads:

“Injunction is the proper form of remedy to enforce the right of a stockholder in a private corporation, given by Section 3254, Revised Statutes, to inspect the books and records of the corporation.
‘' The right to. inspect does not depend upon the motive or purpose of the stockholder in demanding such inspection and a petition which shows that the plaintiff is a stockholder; that he has requested the defendant to allow him to inspect the books and records of the corporation, and fix a reasonable time for the same, which request has been refused, states a cause of action.
“As incident to such right is the right to have such inspection by a proper agent, and to take copies from such boobs and records.”

It is urged, however, that the statute does not apply to foreign corporations, because the language is that the “books and records of such corporations” shall be open to the inspection provided for, and that the word “such” refers to the kind of corporations provided for in the chapter, to-wit, domestic corporations.

It is, however, provided in Section 5508, as amended in 102 O'. L., at page 251, Section 119 of the amendment, in these words:

“All foreign corporations, and the officers and agents thereof, doing business in this state, shall be subject to all the liabilities and restrictions that are or may be imposed upon corporations of like character organized under the laws of this state, and shall have no other or greater powers.”

That this applies to all foreign corporations, other than certain ones named later on in the section, is clear from the fact of those exceptions being made.

We have not found it necessary to consider other questions raised in this ease. We regard the case as settled by these statutes and the decision of the Supreme Court already named. The result is that the .judgment of the court of common pleas is „ affirmed.