author: Shohl, J.

text:
    WHO MAY BE JOINED AS DEFENDANTS BY CROSS-PETITION.
    Court of Appeals for Hamilton County.
    Moeser v. Republic Distributing Company.
    Decided February 3, 1919.

      Parties — Persons Only Who Are Essential to a Determination of the Controversy May Be Brought in by Gross-Petition — Surety May Not Malee His Principal a Party Defendant, When.

    1. Persons who are made defendant under Sections 11255 and 11262, General Code, must be those whose presence is essential to the ■ determination of the controversy before the court, and. a defendant can not by cross-petition bring in new parties in order to litigate matters wholly between themselves and which can not affect the right of the. plaintiff to recover on his petition.-
    2. Section 12206, General Code, contemplates an original action by a surety against his principal -to discharge the debt or liability, and a defendant who claims he was acting as agent and that his principal. agreed to protect him from liability is not entitled to have his principal made a 'party defendant by cross-petition.
    Heard ou error.

      ■Charles B. Wilby ■and O. S. Bryant,- for plaintiff in-error;

      Pogue, Éoffheimer & Pogue, for defendant in erfo-rA
   Shohl, J.

Henry A. Klein sued The J. W. Biles Company, alleging that he had purchased ninety-five barrels of whiskey, and paid for them, and the warehouse receipts which-were delivered to him were fraudulent and invalid. Louis Moeser, as liquidating trustee of the Biles company, filed an answer, alleging among other things that the Biles company was merely acting as agent for the Republic Distributing Company, as plaintiff knew. He also filed a cross petition against the Republic Distributing Company, praying that if the receipts were invalid, as claimed by plaintiff, the .Republic Distributing Company be held liable to plaintiff.

After a lapse of eighteen months the Republic Distributing Company demurred to the cross petition, and the demurrer was sustained.

Thereafter an amended cross petition was filed containing further allegations, but praying for substantially the same relief. To this a demurrer was again filed and was sustained.

The case of Klein v. Moeser, Trustee, was heard, and judgment rendered in favor of the plaintiff, the court finding that the warehouse receipts were illegal.

After the rendition of that judgment, the trustee again asked leave to file an amended and supplemental cross petition against the Republic Distributing Company. It was of a similar character to the earlier cross petitions, showing in substance that as between the Republic Distributing Company and Moeser, trustee, the relation of principal and agent existed, and also alleging an express agreement to protect the Biles company from liability. It also alleged that judgment had been rendered, and paid by Moeser, trustee, and asked judgment against the Republic Distributing Company for the amount paid and interest. The court refused permission to file the pleading, and dismissed the action as to the Republic Distributing Company. This action of the court is now complained of in these error proceedings.

Plaintiff in error relies upon Section 12206, General Code, which provides that a surety may maintain an action against his principal to compel him to discharge the debt or liability for which’the surety is bound, after it becomes due.

Defendant in error contends that a defendant in a suit can not inject into the action a controversy, between himself and an outsider, whose presence is not essential to the complete determination of the controversy between the parties who are already before the court. It may be that there is no decision by the Supreme Court of Ohio which conclusively adjudicates the question at issue.

An examination of the courts of last resort of other states shows the trend of judicial thought in respect to similar questions arising upon code provisions substantially similar to the Ohio law.

In Indiana a party defendant may not by cross complaint bring in new parties in order to litigate matters wholly between themselves, and which can not affect the right of the plaintiff to recover on his complaint. Hunter v. First National Bank, 172 Ind., 62, and cases cited.

Although the California code provides that ‘ ‘ whenever the defendant seeks affirmative relief against any party to the action, relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates, he may ~ * * file * * # a cross-complaint,” a defendant is not authorized to bring in new parties by way of cross-complaint. Clark v. Kelley, 163 Cal., 207, and Alpers v. Bliss, 145 Cal., 565. See also American Exchange Bank v. Davidson, 69 Minn., 319; Joyce v. Growney, 154 Mo., 253; Bliss v. Winters, 40 N. Y. App., 622; N. Y. Life Ins. & Trust Co. v. Cuthbert, 87 Hun, 339 (affirmed, 148 N. Y., 742), and Hill v. Fink, 11 Wash., 562.

The foregoing are in harmony with the decision of Judge Gorman in The Kidder Press Co. v. The United Wrapping Machine Co., 8 N. P. (N. S.), 369. Learned counsel for plaintiff in error urge that Judge Gorman’s opinion is based upon a misconception of the decision of the Supreme Court in Wilkins v. The Ohio Natl. Bank, 31 Ohio St., 565, which he regards as disapproving the decision by Judge S'torer in the case of Resor v. M’Kenzie, Sterrett & Co., 2 Disney, 210.

In the ease of Wilkins v. Bank, the court says, at page 567:

“It is contended, however, that where the holder of such an instrument elects to sue the surety alone, that such surety may, by cross-petition, bring in his principal, and then demand the protection prescribed in this section. The right of the surety in such case to thus bring in his principal, is sought to be worked out through the provisions of Section 500 of the code, which reads as follows': ‘A surety may maintain an action against his principal to compel him to discharge the debt or liability for which the surety is bound, after the same becomes due.’
“Clearly, this section contemplates an original action.”

It may be that the foregoing was really a dictum in the case, as it does not appear in the syllabus. It is in accordance with the practice in a majority of other states. In our opinion, it affords the better rule.

Sections 11255 and 11262, General Code, provide for bringing-in new parties. The persons so brought in must be persons whose presence is essential to the determination of the controvery before the court.

Judgment affirmed.

Jones, P. J., and Hamilton, J., concur.


source: Caselaw Access Project

author: Allread, J.

license: Public Domain

text:
    COMPENSATION FOR TRANSPORTING PUPILS PAYABLE DURING A SPECIFIED PERIOD.
    Court of Appeals for Franklin County.
    F. J. Cashdollar v. Will Clotts et al.
    Decided, February 12, 1920.

      Schools — Transportation of Pupils — Compensation Payable During Month Schools Were Closed.

    1. A party hauling pupils to and from school under an entire contract for the school year is not subject to deduction for the time the schools are closed by a temporary order, indefinite as to time, of the board of health where it is conceded that such party during said period held himself in readiness to -perforin the contract.
    2. The fact that compensation under said contract is payable by the month, and that the temporary order remained in force for one month does not affect the result.

      F. M. McCartney and David E. Evans, for plaintiff in error.

      Hugo N. Schlesinger, Prosecuting Attorney, and John H. Summers, Assistant Prosecuting Attorney, for defendants in error.
   Allread, J.

Cashdollar contracted,

“To furnish horses and drive wagon of Route No. 4 to haul all pupils of said route to and from school for the school year 1918-1919 * * * and also agreeing to abide by and maintain the rules and regulations adopted by said Board * * , *.
“And in consideration of said service the Board of Education agrees to pay to said E. J. Cashdollar the sum of Sixty-two dollars and fifty cents ($62.50) monthly for nine months.”

Cashdollar entered upon the performance of the contract. On November 30th the schools were ordered closed by the Board of Health and remained closed for the entire month of December. The question here involves the liability to Cashdollar for the month of December. The question arose upon demurrer to the answer which contained among other things an admission of the terms of the contract and of Cashdollar’s readiness and willingness to comply with the contract during the month of December. The answer avers that the schools were closed by order of the Board of Health and remained closed during said month. It does not appear that the order closing the schools was for any definite period.

The contract und,er consideration was an- entire contract for . the school year of nine months at a stipulated compensation per month. According to the terms of the contract if Cashdollar performed he was entitled to the full compensation provided for. There was no exception relieving either party from the obligation so created.

The board of education relies upon an exception created by law. This exception is thus stated in 9 Cyc., 629:

“To the general rule that a party to a contract is not discharged by subsequent impossibility of preformance there is an exception where the performance becomes impossible either by reason of (1) A change in the law or (2) By some action by or under the authority of -the government. In such cases the promisor is discharged * * * the exception does not apply, however, where the impossibility created by the law is only temporary. ’ ’

Most, if not all, the oases cited by counsel for defendant in error are cases where the future performance of the contract becomes wholly impossible and where both parties were therefore discharged. Here the future part of the contract was not wholly impossible. Cashdollar was not wholly relieved from future performance. On the contrary he was expected to perform the contract except for an indefinite period affected by the order of the Board of Health. It would seem to be reasonable that impossibility of performance by act of law should, to be effective, release both parties to the contract. Cashdollar under the circumstances of this case performed the first clause of the contract, to-wit: to furnish horses, and was ready and willing to perform the other covenants. The order being for an indefinite period Cashdollar was under obligation for every school day to be ready to comply with the contract and could not use his horses or employ his own time in any occupation inconsistent with his contract. We think it would, therefore, be unjust to hold Cashdollar and relieve the board for the indefinite and uncertain period covered by the Board of Health. The exception referred to in the text in Cye., is applicable to the case at bar. The Attorney General in a very elaborate opinion sustained the Board of. Education in a contract materially different from the one at bar. In the opinion he expressly confines the ruling to the contract under consideration. If the contract in the case at bar could be fairly construed to be one by the day or by the month the rule of liability might be different. Counsel for the Board of Education rely on the clause making the service subject to the’ order of the said Board, that, however, relates to the manner of service and not to the time which is definitely fixed by the contract. The Board would not, therefore, in our judgment be relieved from payment of said compensation by said order of the Board of Health suspending schools for an indefinite period.

Judgment of the court of common pleas reversed and that of the magistrate affirmed.

Fernedinq and Kunkle, JJ., concur.


author: Hamilton, J.

text:
    INJURY CAUSED BY LIMOUSINE HIRED BY UNDERTAKER FOR USE AT A FUNERAL.
    Court of Appeals for Cuyahoga County.
    Judges Shohl, Hamilton and Cushing of the First Judicial District sitting in the Eighth District by Designation.
    Gechei, by etc., v. Boltz.
    Decided, June 21, 1920.

      Master and Servant — Liability for Accident Caused by a Servant — Hired to an Undertaker lolhile Conducting a Funeral.

    A liveryman, whose business is supplying motor vehicles for weddings and funerals, furnished upon the order of an undertaker four limousines, together with drivers, to be used at a funeral which such undertaker was conducting. The liveryman owned the limousines, hired and paid the drivers, and he alone had power to discharge them. The undertaker directed the drivers where to go, whom to take in the different machines, gave them their positions in the funeral procession, and, after the funeral services, directed them to take- the passengers home, without designating any direction or way to go. While taking his passengers home one of the drivers struck and injured a pedestrian. Neither the undertaker, nor anyone representing him, was with the machine which caused the in-, jury, and there was nothing to show that he did anything to bring , about the negligent act.

      Held: The driver remained the general servant of the liveryman throughout the transaction and he is responsible for the negligence of such driver.

      Payer, Winch, Minshall & Karch, for plaintiff in error.

      Sowell, Roberts & Duncan, for defendant in error.
    Heard on error.
   Hamilton, J.

The parties stand here in the order in which they stood below.

The plaintiff, Mary Gechei, an infant, was knocked down and injured by a motor vehicle of the defendant, at a street intersection in the city of Cleveland, as she was going home from school. .The motor vehicle was driven by one Herrick, a regular employee of defendant, George A. Boltz, and was at the time of the accident taking mourners home from a funeral which had just been held at Calvary Cemetery. The funeral was conducted by an undertaker named Jakab, who had ordered the motor vehicle of the defendant Boltz, a liveryman. The name of the deceased, whose funeral was being held, was John Murdi. The Murdi family in arranging for the funeral ordered twenty limousines for use at the funeral. The undertaker, taking a list of the liverymen engaged in this sort of work, ordered the limousines, four of which were ordered from the defendant Boltz, one of the four, driven by Herrick, being the machine which it is claimed struck the infant, plaintiff. Boltz had sent the limousines to the undertaker’s office, and the undertaker had thereupon directed the said Herrick to get the priest and take him to the family residence, and, after the service at the house, had assigned him a place in the funeral line, with some of the mourners in his conveyance, to convey them to the cemetery, and, after the services at the cemetery had again directed him to take the mourners in his car to their homes. And it was while Herrick was taking the mourners home that that accident is alleged to have occurred.

At the close of plaintiff’s testimony upon the motion of the defendant to dismiss the petition and render judgment for the defendant, the court granted the motion and withdrew the testimony from the jury, dismissed ‘the petition, and rendered judgment for the defendant on his view of the law that the defendant liveryman was not liable as to the master. This is the error complained of in this case.

The case involves the question as to whén a servant in the general employment of one person becomes with regard to a particular transaction a servant of another person. In other words applying the question to the instant ease, was Herrick at the time of the alleged injury a servant of Boltz, the liveryman, or the special servant of the undertaker?

The facts- as to the relationship of the parties are undisputed with the exception as to whether or not the undertaker was acting for himself in procuring the limousines, or as agent for the family of the deceased. .But, this fact is not important in the determination of the question in this case. The general rule, supported by the great weight of authority, is that where a motor vehicle and driver are hired, and the hirer exercises no control or supervision over the driver as to the management of the machine, except to direct him as to the route and similar matters, the owner is responsible for the negligence of the driver. Huddy, Automobiles (5 ed.), Sec. 644: Blakemore (2 ed.), Babbit Law Applied to Motor Vehicles, Sec. 866; Forbes v. Reinman & Wolfort, 122 Ark., 417; Johnson v. Coey, 237 Ill., 88 (86 N. E., 678); Tornroos v. R. H. White Co., 220 Mass., 336 (107 N. E., 1015); Rodenburg v. Clinton Auto & Garage Co., 85 N. J. L., 729 (91 Atl., 1070), and Wallace v. Keystone Automobile Co., 239 Pa., 110 (86 Atl., 699).

While the above is the fundamental principle, the question arises upon the application of the facts in this case to the principle announced.

In the ease of Kellogg v. Church Charity Foundation, 203 N. Y., 191 (96 N. E., 406), the second paragraph of the syllabus is:

“Where an ambulance owned by the defendant and bearing the name of its hospital was kept at a livery stable, the proprietor of which furnished a horse to draw the ambulance and a man to drive it on such oeasions as the defendant might indicate, the driver having been hired and paid by the livery stable beeper, who alone had the power to discharge him, the relation of master and servant is not established between the defendant and such ambulance driver as might be furnished from the livery stable. Such a contract does not make the driver the servant of the hirer or render- his negligence imputable to the latter.”

In the case under consideration the defendant liveryman not only hired and paid the driver of the limousine, but, in addition thereto, owned and furnished the limousine in question, and the evidence further shows that the power to discharge the driver was alone in the liveryman.

In the ease of Standard Oil Co. v. Anderson, 212 U. S. 215 [29 S. Ct. 252], Mr. Justice Moody states in the opinion, at page 222:

“The simplest ease, and that which was earliest decided, was where horses and a driver were furnished by.a liveryman. In such cases the hirer, though he suggests the course of the journey and in a certain sense directs it, still does not become the master of the driver and responsible for his negligence, unless he specifically directs or brings about the" negligent act.”

In this case the undertaker testified that the widow of the deceased directed him to procure twenty limousines; that the liverymen who furnished motor vehicles for weddings and funerals had left their cards with him, that they might be called upon to serve in such business; that among the number he called were four limousines from Boltz; that the limousines were furnished together with drivers by the liverymen; that the limousines were sent to him and all he did was to give them their positions in the line of the funeral procession and direct the drivers as to where to go and whom to take in the different machines, and, after the services at the cemetery, direct them to take their loads home, without designating any direction or way to go. The undertaker testified that he was not with the machine which caused the injury, nor anyone representing him, and there is nothing to show that he did anything to bring about the negligent act. The undertaker did not pay the chauffeur nor the expenses of operation of the machine. "While this latter fact alone is not sufficient upon which to determine the relationship, it is a circumstance for consideration- in determining that fact.

A case much like the one here is that of Frerker v. Nicholson, 41 Col. 12 [92 Pac. 224]. In that case an undertaking company hired a carriage and driver from the defendant, a livery-stable keeper, to carry fri'ends at a funeral to the cemetery and back to their homes. The plaintiff, one of the occupants of the carriage, was alighting in front of her home, on the return trip, when the driver suddenly started the horses, and the plaintiff was thrown to the ground and injured The court held the driver was the servant of the defendant throughout the entire transaction and that the defendant was solely responsible for the negligence.

We are therefore of opinion that the facts malea the relationship, prima facie, of master and servant between the driver, Herrick, and the defendant, Boltz.

The contract between the defendant and the undertaker fairly construed is an ordinary contract by the defendant to do his regular business by his servant in the common way. The undertaker who employed the services of the liveryman indicated the work to be done, and in that sense controlled the service as he would have controlled the liveryman if he had been present. He did his own business in his own way, and the orders which he received from the undertaker simply point out to him the work to be done. Driscoll v. Towle, 181 Mass. 416 [63 N. E. 12].

While under certain circumstances the general servant of one master may become the special servant of another, to such extent as to relieve the former from liability for the servant’s negligence, under the facts of this case the general servant remained the servant of the liveryman throughout the transaction, and the servant was engaged upon the business of the liveryman.

The trial court rested its decision on the case of Deppen v. Conkling Box Co., 19 N. P. (N. S.), 153. That case is not an authority here. If it was correctly decided, it is clearly distinguishable.

It follows that the. judgment of the trial court was erroneous and the judgment will be reversed and the cause remanded for further proceedings.

Si-iohu and Cushing, JJ., concur.


author: By the Court.

text:
    WITHDRAWAL OF A WITHDRAWAL OF CANDIDACY FOR PUBLIC OFFICE WITHOUT EFFECT.
    Court of Appeals for Montgomery County.-
    Judge Houck sitting by designation in place of Judge Ferneding,
    D. C. Brower et al, v. State of Ohio ex rel Valentine Ritz.

    Decided, July 13, 1920.

      Elections — Candidate may "Withdraw but may not "Withdraw his Withdrawal — Mandamus Will Not Issue. Unless — Office and Officer— Section 4976, General Code.

    1. A writ of mandamus will not issue against a public board or officer to compel certain specific action, in the absence of a clear and mandatory duty imposed by law.
    2. A withdrawal of candidacy, if filed in proper time, is recognized by statute and is valid; but a withdrawal of such withdrawal of candi- ' dacy is not.so recognized and may be disregarded by the deputy state supervisors of election.

      Matthews & Matthews, McCray & Dineen and Nevin & Kalbfus, for plaintiff in error.

      McConnaughey & .Shea and Turner & Turner, for defendant in error.

      Motion for a writ of certiorari overruled by the Supreme Court, July 16, 1920.

   By the Court.

(Allread, Houck and Kunkle, JJ., concurring';.

The original action was in mandamus to require the Board of deputy state supervisors to print relator’s name upon the official primary ballot.

Counsel for the respective parties have fairly and ably presented the questions involved.

"We have given the ease the best consideration of which we are capable, and have reached a conclusion based upon what we believe to be a sound construction of the election laws.

We base our decision upon tbe undisputed facts.- We are not required to go into the realm of disputed evidence.

Ritz, the relator, duly filed his declaration of candidacy.

June 26th, (forty-five days before the primary election day) Ritz filed with said board a withdrawal of his candidacy.

June 28th, two members of the board of deputy state supervisors of elections accepted relator’s withdrawal of candidacy.

June 29th, the relator filed a withdrawal of his withdrawal o£ candidacy.

June 29th, the Secretary of State approved the action of the two members of said board.

Upon a careful examination of the questions presented we hold:

(1) The relator must show a clear right before he can obtain relief and the duty of the board must be one specially enjoined by law. State ex rel v. Graves. 90 O. S., 324; State ex rel v. Liquor Board, 93 O. S., 375; State ex rel v. Stryker, 95 O. S 104.

(2) Section 4976 General Code, by reasonable construction recognizes the right of a candidate before the primary to withdraw, if such withdrawal is made and filed in proper time. State ex rel v. Taylor, 55 O. S., 385.

(3) The withdrawal of relator’s candidacy, in our judgment, took effect as of the date of the filing thereof with the board of deputy state supervisors, and being filed within proper time, required no further action by the election authorities to maké it effective.

(4) ' The statute does not expressly or by inference recognize a withdrawal of a withdrawal of candidacy. Consequently the law imposés no duty upon such board of deputy state supervisors with respect thereto. Under the well established law governing proceedings in mandamus, such board can not therefore be compelled to act where the statute imposes no duty.

(5) Under the pleadings and undisputed evidence the relator is not entitled to relief and the judgment below should -be reversed, and final judgment.entered for plaintiffs in.error. •

Judgment accordingly.


author: Metcalfe, J.

text:
    VALIDITY OF PROVISION FOR FREE TRANSPORTATION OF MAIL CARRIERS.
    Court of Appeals for Jefferson County.
    The City of Steubenville, Ohio, v. The Steubenville, East Liverpool & Beaver Valley Traction Company.
    Decided December Term, 1920.

      Municipal Corporations — Validity of Provision Embodied in Street Railway Grant — In Contravention of a Statute Subsequently Enacted.

    1. An ordinance of the city of Steubenville granting certain privileges in the streets of the city to an eleettric railway company, and in consideration thereof requiring the company to carry the city’s mail carriers free within the city limits, is, when accepted by the company a contract, and entitled to the protection of the privileges of Article 1, Section 10, of the Constitution of the United States, and Section 28, Aricle 2, of the Constitution of Ohio.
    2. Said ordinance having been passed prior to the enactment of Section 516, General Code, forbidding railroads from carrying certain persons free, the provisions of said section did not apply thereto, and it is the duty of the street car company to comply with all the provisions of the ordinance and carry the local mail carriers free within the city limits.

      Ralph Levinson & Wm. J. Ford, Asst. U. S. Attorney, for plaintiff in error.

      W. McD. Miller, for defendant in error.
   Metcalfe, J.

This ease is in this .court on appeal. The action is brought for a mandatory injunction to require the defendant to carry out the provisions of an ordinance granting a franchise to the defendant to use the streets of Steubenville to operate its cars, and including in that franchise a requirement on the part of the defendant to carry the local mail carriers of the city of Steubenville upon its cars, while on duty within the city limits, free of charge.

This contract was entered into several years ago by the predecessor of the present company, and has been carried out by the original grantor and its successors for a number of years since the granting of the franchise. But, some time ago the company came to the conclusion that in carrying out the provisions of this franchise that it was violating Section 516 of the General Code of Ohio, which prohibits railroads, and interurban and electric railroads from carrying certain persons free.

The provisions of the statute is that,

‘ ‘ No railroad company, owning or opérating a railroad, wholly or partly within this state, shall, directly or indirectly issue or give a free ticket, free pass, or free transportation for passengers, except to its employees and their families,”

and others, specifically named. The only respect in which it-is claimed that tire mail carriers of the city were not included iix.this contract is in the exception “to railway mail service employees.” Evidently that does not refer to mail carriers in the city. They are not working on a railway. They have no connection with railway mail service.' They only ride upon the cars .of the company the same as any other passengers in going about their business of delivering mail within the city limits. So we think there is no question but what the carrying of mail carriers is as much prohibited as any others not particularly mentioned in the statute.

The only question in this case is, as we view it, whether or not the franchise which was granted to the company and under which it is operating is a contract within the meaning of the laws and the Constitution of the United States, which prohibits any state from passing a law impairing the obligation of a contract, and of Section 28, of Art. 2, of the Constitution of Ohio, which embodies the same provision. This contract having been made prior to the passage of Section 516, does that statute impair the obligation of an existing contract? That'is the question which- we have to deal with here.

It is insisted in this case that the recent decision by the Supreme Court of the United States in the case of Railroad Company v. Mottley, 219 U. S., 467, governs this case.

In the Mottley ease the defendant in error, Mottley and.-his wife were passengers upon a train of the, Louisville & Nashville Railroad which came into collision-with another train and they received some injuries. In the settlement of the matter it was agreed by the railroad company to grant Mr. Mottley and his wife free passage for their natural lives over the Louisville & Nashville Railroad and its connections. The company lived up to the contract faithfully for a number of years, until the-passage of the United States Statute forbidding railroad- companies from carrying certain persons upon their trains on passes- and giving them free transportation.

The Supreme Court held that this contract could not.be enr forced, and that it was obnoxious to the provisions of the statute'. The court say:

•“The power of Congress to regulate commerce .among tlm states and with foreign nations is complete and unrestricted except by limitations in the Constitution itself, and extends to rendering impossible the enforcement by suit of contracts between carriers and shippers although valid when- made.-”- M ,

That is to say the contract between the Louisville & Nashville Railroad and Mr. Mottley was a valid contract when it. was- ma.de but the legislation of the United States with regard to .passes upon the railroads rendered the enforcement of that contract-absolutely impossible. ...

This is under the provisions of the Constitution of the.United States relating to interstate commerce. It will be observed that the Constitution of the United States does not prohibit Congress from passing a law impairing the obligations of a contract. Of course it does not follow that Congress can enact a law generally declaring void all contracts.

It does mean that the inhibition against passing laws inpairing the obligations of contracts does not rest upon Congress but upon the states. -So that where the necessities of the case, require, as it is held that they do in the regulation of interstate commerce, that the legislation shall render a contract void or shall prohibit its performance or make its performance impossibly, then Congress has the power to pass such legislation. ■ • ■ ■

But it-is a different.proposition ip legislation enacted by a state. The language of the Constitution (Art. 1, Sec. 10) is “No state shall * * * pass any • * * * law impairing the obligation of contracts.” The doctrine that the charter of a corporation is a contract was first held in Dartmough College v. Woodward, 4 Wheat., 578, and although resisted somewhat in this state, in some of the earlier cases as< applying to certain bank charters, which provided for certain rules of taxation therein. (See De Bolt v. Trust Co., 1 O. S., 563; Bank v. De Bolt, 1 O. S., 591; Knoup v. Piqua Bank, 1 O. S., 603; Toledo Bank v. Toledo, 1 O. S., 622.) It is now too thoroughly established in the. law of this state and of the United States to be open to question. Piqua Bank v. Knoup, 16 How., 369; Bank v. De Bolt, 18 How., 380; Sturges v. Crowwingshield, 4 Wheat., 122; Fisher v. New Orleans, 218 U. S., 438,

But, it is urged that the ordinance of a municipality does not come within the same rule in as much as the ordinance is not the charter of a corporation but only a grant of power to do pertain things within the municipality. The ordinance in question grants to the company certain privileges and the company as part of the consideration for that grant agrees to carry the city’s mail carriers -free. It is mot easy to see why such a transaction is not a contract, and we think the weight of authority clearly establishes the fact that it is.

In City v. Gas Company, 76 O. S., 309, where the city passed an ordinance granting certain rights to the gas company the court say:

“When the gas company accepts the terms of said ordinance according to law, and takes possession of and occupies-the streets, etc., under said grant, such accepted ordinance becomes a valid contract between the parties.”

And in Grank Trunk & Western Ry. Co. v. R. R. Commission of Indiana, 221 U. S., 400, it is said:

“A legislative act by an instrumentality of the state exercising delegated authority is of the same force as if made by the legislature and is a law of the state within the meaning of the contract clause of the Constitution.”

And very recently the Supreme Court in City of Cincinnati v. Public Utilities Commission, 98 O. S., 320, where an ordinance had been granted by the city of Cincinnati to gas and electric companies granting privileges in the city the court said:

“A contract such as above described, which it passes in full compliance with authority expressly conferred, is protected by the provisions of See. 10, Art. 1, Federal Constitution that no state shall pass any law impairing the obligation of contracts.”

We see no distinction between the decided cases and the instant case. The obligation imposed on the company by the provisions of the ordinance in question is a contract obligation which can not be impaired by the provisions of Sec. 516, G-. C., and hence the relief prayed for must be granted.

Pollock and Farr, JJ., concur.


author: Farr, J.

text:
    MONEY DEPOSITED FOR THE BENEFIT OF ANOTHER.
    Court of Appeals for Mahoning County.
    Maria Luplow Jones v. Christopher Luplow et al.
    Decided, December Term. 1920.

      Trusts — 'Voluntary Express Trust Created by Deposit of Money for Benefit of Another, When — Pass Book Retained by the Depositor — No Power to Revoke the Trust, When,

    1. Where one declares an intention to deposit money in a savings account for the ‘benefit of another and makes the deposit in his own name in trust for such other person and subsequently declares that fact; then, although the person making the deposit, retains the pass-book and withdraws from the account certain sums by check, such declarations, coupled with the deposit in presentí creates a voluntary express trust which is completed by the deposit and the designation of the one making the deposit as trustee.
    2. It is not necessary to a completion of such trust that the settlor part . with the possession of the trust property.
    3. The withdrawal by the settlor of certain sums by check from the money on deposit does not annul such trust; there being no power of revocation reserved in' the creation of the same.

      Mr. Charles J. Jackson, for plaintiff in error.

      Mr. William L. Countryman, for defendant in error.
   Farr, J.

Heard on error.

Christopher Luplow and -Maria Luplow, husband and wife, were, for some time prior to June 11, 1901, residents of the city of Youngstown, this county, and were possessed jointly of certain real estate Which they sold for $4,250.00, a part of which they reinvested in other properties. They were both wage earners and reared a family of children, the youngest of whom are Richard and Maria.

On'the 11th day of June, 1901, Maria Luplow, the wife, deposited in a saving's account with The Dollar Savings and Trust Co., of the city of Youngstown, $700.00 in the name of “Maria Luplow, in trust for Richard and Maria,” and the account so appears at the present time. Maria Luplow died June 20, 1919, and the husband, Christopher Luplow, was soon thereafter appointed administrator of her estate.

On the 25th day of September, 1919, Christopher Luplow as such administrator began an action in the court of common pleas of this county to reform said savings account, alleging that he is the owner and entitled to the one-half thereof, and asking that Maria Luplow, now intermarried with one Jones, be restrained from withdrawing any part of said money, and that the Trost Company be restrained from paying any portion thereof to her.

To his petition as administrator, Christopher Luplow filed an answer and cross-petition, admitting the allegations of the petition to be true, and asking a reformation of the account, and that he be found to be entitled to the one-half thereof, and that the remaining-half be awarded the estate of Maria Luplow-', deceased.

Richard Luplow, one of the beneficiaries, filed his answer, admitting the allegations of the petition to be true. Maria Luplow Jones filed an answer and cross-petition, and for a first ground of defense, admits the deposit and then tenders a general denial; for a second defense she avers.the making of the deposit and that it was a gift and denies that any part belongs to Christopher Luplow; as a third defense she avers a trust was created in and to said deposit in favor of Richard Luplow and herself and asks one-half of the amount and that the restraining order be dissolved; in her cross-petition she alleges that the $700 was a gift, and asks that she be declared the owner of one-half thereof; to this answer Christopher Luplow and Richard Luplow filed replies and to the cross-petition answers, denying ownership in Maria Luplow Jones, and that said $700 was either a gift or a trust, and the issues being joined, trial was had, which resulted in a decree reforming said account and awarding one-half to Christopher Luplow, as administrator aforesaid, and the remining half to Christopher Luplow individually, and from which error is prosecuted here, and from which an appeal was also perfected ; however, counsel elected to present the error case, which is probably unfortunate, as otherwise a proper decree might have been entered here.

The vital issue is, therefore, whether a gift of the $700 was made or a trust created in it in favor of Richard and Maria Luplow. It is urged that neither could have resulted, because it is said that in no event more than the one-half of the $700 originally deposited was the property of Maria Luplow, and that one-half at least belonged to Christopher Luplow. True, he says that the money belonged to him and his wife,- but he says also that he advised her to deposit the money in the bank, as a matter of safety; he does not, however, fix the amount. The balance remaining from the proceeds of the sale of the Mead Street property, after the purchases on Salt Spring Road and Columbia Street, was $1,850; however, Luplow knew of the deposit and undoubtedly knew of the manner in which it was made, because it was of common knowledge in the family, and was occasionally discussed by different members of it, and yet, knowing all this, he waited a little more than eighteen years, and until after the death of his wife, to assert bis claim against it by this proceeding. He was, undoubtedly du ’ing these years, fully cognizant of the whole situation, and mus! have acquiesced; however, it is now too late for him to be heard to complain in that regard, because the time has passed when such contention will avail.

Did that which was said and done create a trust in favor of Richard and Mlaria, or was it a completed gift? As to whether or not a trust was created will first be considered, because a trust usually involves a gift.

The several elements which must concur in the creation of a trust are, a person competent to create it; sufficient words to establish it; a person capable of holding as trustee a specified or ascertainable object, a definite subject, and a declaration of the terms of the trust. To constitute an express trust there must be either explicit language to that effect or circumstances which show with reasonable certainty that a trust was intended to be created. No particular form of words, however, is required to create a trust, and whether one exists is to be ascertained from the intention of the parties as manifested by the words used and the circumstances of the particular case, If it appear to be the intention of the donor, from the whole instrument creating it, or by his expression and conduct at the time that the property conveyed is to be held or dealt with for the benefit of another, a court of equity will affix to it the character' of a trust; and in determining whether or not a trust has been created, there must be taken into consideration the situation and relation of the parties; the character of the property, and the purposes which the settlor had in view in making the declaration. It is sufficient if the language used shows that the settlor intended to create a trust, and clearly points out the property, the beneficiary and the disposition to be made of the property. 26 R. C. L. 1179, 1180, 1181.

To summarize, it may be said that to create a trust, it is enough, if the property being personal, the settlor unequivocally declares, either orally or in writing, that he holds it in presentí, in trust or as a trustee for another. Ray v. Simmons, Administrator, 11 R. I., 266.

The record discloses here that Maria Luplow, on or about the 11th day of June, 1901, said to her daughter, Mrs. Engleheart, that she was going down town, or down to the bank, to deposit the money in question for the benefit of Richard and Maria, or words to that effect, and requested her daughter to accompany her, which she did; the deposit being made as indicated: ‘ ‘ Maria Luplow in trust for Richard and Maria, ’ ’ which was a clear, unequivocal declaration concerning the definite sum of $700. of her purpose, in presentí, and it is quite significant that, although some members of her family importuned her later to change the character of the deposit, she never did so, and it so remained for eighteen years, which fact alone, that is, lapse of time, discloses the idea of permanence and corroborates the theory of a trust Moreover, Mrs. Luplow to others of her family, who so testify against interest, declared both before and after making the dedeposit, her purpose to create a fund for the benefit of her two youngest children, suggesting that she might not live to rear them, the suggestion itself clearly indicating her motive, and these declarations were competent, Bank v. Albee, 64 Vt. 571, 25 Atl. 487. Perry on Trusts, 1st Ed. Secs. 77, 177.1 Greenlf. on Ev. (12th Ed.) See. 189.

It is urged, and the record discloses, some testimony to the effect that the deposit was made in the form it was, for -the purpose of avoiding the payment of taxes. If this were the motive, then it is somewhat singular that the remainder of the fund was not deposited. The whole balance from the sale of the Mead Street property, after reinvestment in the two other properties, was $1,850, and it is not disclosed that at least a part or all of the balance of this amount was still in hand. However, this would not avail even if true, because an unlawful act could not be the basis of a defense against a lawful one, and the parties would be. left just where they placed themselves, and it is held in the above case of Bank v. Albee, et al., that such defense is not available; the fifth paragraph of the syllabus of which reads as follows:

“That the father made the deposit in the name of the son to escape taxation is not such a -fact.”

That is, such a fact as would negative the theory of a trust. Again, it is insisted that Mrs. Luplow retained the bank book and that this was inconsistent with the trust. Scarcely so; for indeed it was not improper for her to retain the book as trustee for such she had voluntarily constituted herself, and therefore, she might properly retain it, and so it is held in Ray v. Simmons, Admr., 11 R. I. 266; the strong weight of authority .is to the effect that the creation of a trust, if otherwise unequivocal, is not affected by the settlor’s retention of the instrument of trust, especially where he is himself the trustee. Exton v. Scott, 6 Sim. 31; Fletcher v. Fletcher, 4 Hare, 67; Carson’s Adm’r v. Phelps, 14 Am. Law Eeg. N. S. 100; Souverbye et ux v. Arden et al., 1 Johns Ch. 240; Bunn v. Winthrop, 1 John’s Ch. 329.

It is further urged that inasmuch as Mrs. Luplow, during the eighteen years, withdrew by check certain sums of money, not large in amount or number, from this account, and that such withdrawals were inconsistent with the theory of a trust, and such must be conceded to be the case, but did she thereby annul the trust? Scarcely^ so, because a trust cannot be annulled by the person creating it in the absence of a power of revocation reserved by him for that purpose. Bank v. Albee et al, 64 Vt. 571; 25 Atl. 487; Sargent v Baldwin, 13 Atl. 856; Martin v. Fink, 75 N. Y. 134; 15 N. Y. (App.) 807; Curtis v. Price, 12 Ves. 103; Ellison v. Ellison, 6 Ves. 656; Salisbury v. Bigelow, 20 Pick. 182, 183; Stone v. Hackett, 12 Gray, 227; Souverbye v. Arden, 1 Johns Ch. 258; Viney v, Abbott et al., 109 Mass, 300; Sewall, Excr. v. Roberts et al., 115 Mass. 262.

No matter what Mrs. Luplow said or did afterwards, inconsistent with an express, completed trust, if she had created one without the power of revocation, she could not thereby annul it, and the foregoing rests upon the equitable principle now well established, that a voluntary gift or conveyance of property in trust, when fully completed and executed, will be regarded as valid and its provisions enforced and given effect.

It is true that two cases, Brabrook v. Savings Bank, 104 Mass. 228, 6 Am Rep 222 and Clark v. Clark, 108 Mass, 522, seem to hold a different doctrine; however, in the first case the circumstances were deemed controlling and adverse to an intent to create a trust and in the last, which was similar as to facts, the court very briefly expresses the opinion that the trust was not complete, but without assigning any reason, and although entitled to much respect, is exceptional to the strong weight of authority in the United States. The English cases in th.U regard, quite a few of which have been examined, generally sustain the view of the large majority of the American cases.

Probably no case can be found more nearly upon the point than Martin v. Funk, Administrator, et al, 75 N. Y., 134, in which it is held as follows:

“■Where * * a trust is declared, whether in a third person or the donor, it is not essential that the property should be possessed by the cestui que trust, or that the latter should.be informed of the trust. S. deposited in a savings bank a spm of money belonging to her, declaring at the time that she wanted the account to be in trust for plaintiff. The account was so entered, and a pass-book given to S., containing an- entry, in substance, that the account was with her in trust for plaintiff. A deposit was made in the same manner in trust for K. Plaintiff and K. were sisters, and distant relations of S. S. retained possession of the pass-books and the money remained in the bank with its accumulated interest, except that she drew out one year’s interest, until her death. Plaintiff and K; were ignorant of the deposits until after that event. In -an action to obtain possession of the pass-book and to recover the deposits.
Held, that the transaction was a valid and sufficient declaration of trust and passed the title to the deposits. S. constituting herself a trustee; that the retention of the pass-books, which were simply the vouchers for the property, must be deemed to have been as trustee, and was not inconsistent with the completeness of the gift, nor was notice to the cestui que trust necessary.”

It is obvious that the foregoing is quite similar as to facts, and fairly expresses the principle declared in practically all of the well-considered cases.

It is, therefore, clear that Mrs. Luplow, as the owner and donor of personal property, could create a perfect or completed trust by her unequivocal declaration, in writing or by parol, that she herself held such property in trust for the purposes named, and the trust is equally valid whether she constituted herself 'or another person the trustee; she need not in express terms declare herself trustee, but she must do something equivalent to it, and use expressions that have that meaning. • The act mast be consummated and not rest in intention; if she constituted herself trustee, it is not necessary as between herself and the beneficiaries that she should-part with the possession of the trust property. She declared her intention before the act, to deposit the money for the benefit of her children, then followed the act depositing the money in her own name “in trust for Richard and Maria;” subsequently' she declared what she had done, and although asked to do so, refused to change the manner of the deposit, and it so continued for more than ■ eighteen years, which of itself indicates permanence of intention. So far as the record discloses she died without any intimation of a desire to make a change in the original arrangement, and it is not believed that the Court should now do that which she declined, although urged to do.

It must be found, therefore, that she created a voluntary express trust, which was completed by her in presentí by the deposit of the $700 and the naming of herself as trustee.

The subject of- gift which was presented in argument need not be further or separately considered, as it has been sufficiently discussed in the foregoing as a part of the trust.

It follows, therefore, that-the judgment must be reversed, and it is so ordered.

Metcalf and Pollock, JJ., concur.


author: Cushing, J.

text:
    LIABILITY ESCAPED BY FAILURE TO SHOW KNOWLEDGE OF DEFENDANT.
    Court of Appeals for Hamilton County.
    Taphorn, Exrx., v. Golay, by etc.
    Decided March 24, 1919.

      Directed Verdict — Defendant Entitled to, in Action for Negligence— Where Knowledge on His Part Has Not Been Shown.

    In an action against the proprietor of a butcher shop for damages for injuries received bi^ an infant while playing with an electric meat-grinding machine, which it is alleged was being operated while unguarded, unprotected and unattended, it is error for the trial court to overrule a motion to direct a verdict for the defendant, where the evidence fails to show that the proprietor had knowledge of the presence of the infant in the shop. Ziehm v. Vale, 98 Ohio St., 306, distinguished.

      Hackett, Yeatman cfr Harris and Tyree, Jones & LeBlond, for plaintiff in error.

      Gordon, Morrill & Ginter, for defendant in error.
   Cushing, J.

Heard on Error.

January 14, 1916, Edwin Golay, an infant seven years of age, entered the butcher shop of Joseph Taphorn, and was injured by placing his hand in the meat grinding machine. Golay claimed that Taphorn was negligent in that he permitted the electric meat grinding machine to run unguarded, unprotected and unattended, which machine attracted plaintiff, unable to realize the danger of playing with same, and that while playing with the meat grinding machine plaintiff placed his hand in the grinder so that his right hand and arm were mangled and crushed.

On entering the shop there was a space, 8 by 13 feet, provided for customers. At the' left and rear of this space were counters. Between the ends of the counters was a passageway 26 inches wide, giving access to the rear of the store. The meat grinding machine, about 3 feet high, telephone booth and stove were in the space at the rear. Taphorn was back of the short' counter waiting on a customer. After starting the grnider and placing meat in it, he went to another part of the store. The boy, Golay, came into the store, walked back of the counter, and, while Taphorn was either away from the grinder or was turning away from it, put his hand in the hopper and was injured. The record does not disclose that Taphorn, who died before the action was tried, knew that the boy was in the store or back of the counter near the grinder.

At the close of plaintiff’s case, defendant moved for an instructed verdict.' This motion was renewed at the conclusion of all, the evidence, and overruled.

There was a verdict and judgment in favor of the plaintiff. Plaintiff in error contends that the verdict and judgment are contrary to law and not supported by any evidence.

This case differs from Ziehm v. Vale, 98 Ohio St., 306. There the automobile was standing on a public street and Ziehm knew that a boy four years old had been playing on the running board. After driving him off and starting the engine, he did not take the precaution to find out whether the child was on or near the automobile when he started it. In this ease, Taphorn did not know that the boy was in the store. The motion for an instructed verdict should have been granted.

It is unnecessary to consider the other assignments of error. On authority of Railroad Co. v. Harvey and Swarts v. The Akron Water Works Co., 77 Ohio St., 235, and Holbrook v. Aldrich, 168 Mass., 15, cited with approval in Erie Rd. Co. v. Hilt, 247 U. S., 97, 101, the judgment will be reversed.

Shohl, P. J., and Hamilton, J., concur.


author: PIamilton, J.

text:
    PROCEEDINGS TO SELL PROPERTY OF A RELIGIOUS SOCIETY.
    Court of Appeals for Hamilton County.
    Wilansky, Trustee, v. Ansche Polen Congregation et al.
    Decided January 19, 1920.

      Jurisdiction — Not Conferred on the Superior Court — In a Proceeding to Sell the Property of a Religious Congregation.

    A proceeding under the proceedings of Section 10051, G. C., to sell property belonging to a religious society, is not an “action” within the meaning of Section 1571, G. C., conferring jurisdiction upon the Superior Court of Cincinnati.

      Cohen, Mack & Hurtig, for plaintiff in error.

      Strieker & Johnson, for defendants in error.
   PIamilton, J.

Heard on error.

The defendants in .error here, plaintiffs below, filed a petition in the Superior Court of Cincinnati, praying for an order of court authorizing them or their successors to sell certain "real estate and personal property described in the petition and belonging to the Ansche Polen Congregation. Two of the trustees- joined in the filing of the petition, and one refused to join and was made a defendant. The trial court, upon a' hearing, made a finding of facts, and conclusions of law, which are made a- part of the record herein.

The jurisdiction of the superior court over the subject-matter -was challenged by the plaintiff in error, defendant below, by demurrer to the petition. The demurrer was overruled and exceptions taken, which constitutes one of the claims of error in the case here.

Did the superior court have jurisdiction? If that court had such" jurisdiction," it is conferred by paragraph 8, Sec. 1571 G. C.,-which reads:

, Every other action, when the defendant, or some one of the defendants, resides or may be summoned in the city of Cincinnati, except applications for divorce and alimony, or for alimony.?’

The question then is, ..Was this an “action”? If it 'was not an Paction,” the court had no jurisdiction over the sub, jeet-matter, as no general jurisdiction is conferred by statute upon the superior court. The jurisdiction given under the eighth paragraph of 'Sec. 1571 is limited to “actions.”

(Section 11237 G. C. defines an action, and is as follows:

“An action is an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judgment or decree, by which a party prosecutes another for the redress of a legal wrong, enforcement of a legal right, or the punishment of a public offense.”

The proceeding in question was filed under the provision of Sec. 10051 G. 0., which is the authority for the sale of property belonging to a religious society. The right of the trustees to file the petition is controlled by a majority of the members of the society. Every step in the proceeding to accomplish the purpose of sale is especially provided for by the statute. It can in no sense be considered an ordinary proceeding. It is not a proceeding whereby “a party prosecutes another.” It was a proeeding not known to the common law, not to equitable procedure, and is purely a creature of statute. If the trustees were agreed in making the application, and were a unit as petitioners, no adversary parties were necessary, yet they are required to proceed under Sec. 10051 G. C. to convey a good title. The only service required was to cause notice of the pendency of the petition to be published in some newspaper in the county where the real estate was situated, for four consecutive weeks before the application was heard. It is only in the sense of division on the part of the trustees that it could be considered as an adversary proceeding.

The general Code provides that a civil action is commenced by the filing of a petition and causing summons to be issued thereon.

The proceeding herein is not an ordinary proceeding. No summons is required to be issued. No party prosecutes another for the redress of a legal wrong. It is not the enforcement of a legal right. It is, in effect but asking authority to proceed in a certain way directed by statutes, to effect a sale of church property, that title may be conveyed. It is not the punishment of a public offense. The proceeding lacks the elements contained in See. 11237 G. C,, defining an "action.

We are of opinion, therefore, that this was in the nature of a special proceeding, and not an action. The superior court was without jurisdiction of the subject-matter, and the demurrer to the petition should have been sustained.

For error in overruling the demurrer, the cause will Lie reversed and a mandate issued to the superior court with instructions to sustain the demurrer and dismiss the petition.

Shohl and Cushing, JJ., concur.


author: Shields, J.

text:
    WHEN A MINOR IS NOT BOUND BY THE ACT OF HIS GUARDIAN.
    Court of Appeals of Knox County.
    Mary B. Swetland et al v. Harriet T. Miles.

    Decided, January, 1920.

      Wills — Right to Contest a Will, Admitted to Probate in 1907, Sustained —Minor not Bound by Settlement Made by Guardian, When — Testimony of One Who Talked with Testatrix about Her Will not Admissible — Fraud and Undue Influence — Charge of Court.

    1. A granddaughter, upon attaining her majority, is not estopped from contesting the will of her grandmother by the fact that while she was a child of tender years the executors, one of whom was her guardian, distributed the available assets of the estate without filing an inventory or obtaining an order of distribution or filing any report thereof.
    2. It is not error in a will contest to exclude the testimony of one who was called in by the testatrix to advise her as to whether the will as drawn properly expressed her wishes as to the distribution of her estate.
    CV U. Workman for plaintiff in error.

      L. C. Stillwell and I?. L. Carr, contra.
    Heard on error.

       Affirmed by the Supreme Court, January 18, 1921.

   Shields, J.

Suit was brought in the court of common pleas of said Knox county by Harriet T. Miles as plaintiff, defendant in error herein, against Mary B. Swetland et al, as defendants, plaintiffs in error herein, to contest the validity of the last will and testament of Phoebe Thompson, deceased. The petition was in the short form authorized by Section 12082, General Code. An order was duly entered on the journal of said court as-provided, and upon the issue being submitted to a jury whether the writing produced was or was not the last will and testament of the said Phoebe1 Thompson, deceased, the verdict of the jury was that the same was not her last will and testament. Upon a motion for a new trial being overruled, judgment was entered upon said verdict and a petition in error was filed in this court seeking a reversal of said judgment.

The principal errors alleged are (1) that the court below erred in holding that the plaintiff below is not equitably estopped to maintain said action; (2) that said court erred in excluding the testimony of the witness, Calvin Trott, offered in behalf of the defendants below; (3) that said court erred in giving in its charge to the jury a certain proposition of law submitted in Request No. 3, hereinafter referred to; (4) that the verdict of the jury is against the weight of the evidence.

Copying the statement of counsel for plaintiffs in error as contained in their brief covering a chronological history of the case in respect to the execution of said will and the relation of the several plaintiffs in error and defendant in error hereto to each other and their relation as beneficiaries under said will, including the initial and partial distribution of said estate by the executors thereof, we have the following:

“Phoebe Thompson died June 7, 1907. The paper writing purporting to be her last will and testament was executed November 28, 1904, and probated December 31, 1907. She was survived by one daughter and three granddaughters, her husband, Dr. Thompson, having died some twenty years before her death. The surviving daughter, Mary T. Swetland, died in July, 1912. She was survived by two of the granddaughters of the said Phoebe Thompson, two of the defendants below — Anna E. Shetland Gotchall and Harriet T. Swetland. The other granddaughter, Harriet T. Miles, the defendant in error, is the daughter of Mrs. Charles E. Miles who died about the time of the date of the birth of the said Harriet T. Miles, October 29, 1896. At the time of her death the.said Phoebe Thompson had two sons-in-law, Charles E. Miles, the father of the said Harriet T. Miles, and H. C. Swetland, the father of two of the plaintiffs in error, Anna E. Swetland Gotchall and Harriet T. Swetland.
“By the provisions of said will each of these two sons-in-law was bequeather the sum of $1,000, and the surviving daughter, Mary T. Swetland, was bequeather all the shares of1 the capital stock- of the said Phoebe Thompson in the First National Bank of Mt. Vernon, Ohio.
“That Charles E. Miles was the duly appointed, qualified, and acting guardian of the defendant in error, Harriet T. Miles, having been appointed as such guardian by the Probate Court of Franklin County, Ohio, December 20, 1897.
“Upon the probate of said will the said Charles E. Miles father of the defendant in error and her guardian, was, with the said II. C. Swetland, appointed and qualified as executors under said will, December 31, 1907. On February 17, 1908, said executors prepared an inventory of the estate of the said Plioebe Thompson, deceased, showing her personal estate to be $32,572.07.
• “That on or about January 20, 1908, said executors with the said Mary T. Swetland, who was named in said will as trustee of the residuary estate bequeathed to her said three granddaughters,' met at the Thompson homestead and there and then some arrangement, understanding, agreement — some family arrangement, understanding or agreement was reached and concluded whereby there was a distribution of the ássets ©f the estate of the said Phoebe Thompson, deceased, in the amount of $15,000 The said Charles E. Miles, father and guardian aforesaid, took $5,-000 of the assets of this estate, and Swetland and his wife, or both, for their two children, took $10,000 woth of the assets of the estate.
“At the same time or shortly thereafter, Charles E. Miles took or received his legacy out of the assets of said estate the sum of $1,000, likewise said Swetland took his legacy of $1,000; at the same time, likewise, Mary T. Swetland took the forty (40) shares of stock in the First National Bank of Mt. Vernon, Ohio, appraised at $5,400, her legacy under the will. The $15,000 distributed and divided by this agreement was not inventoried. -

The foregoing statement embraces the facts upon which counsel for the plaintiffs in error claim the court below erred in holding that the same do not constitute an equitable estoppel against the plaintiff below and bar her from prosecuting this action. Although a child of tender years, a minor, at the death of her grandmother in June, 1907, which is conceded and although recognizing the saving clause in Section 10531, General Code, which gives to minors the right to contest a will within two years aftef attaining their majority, counsel for plaintiffs in error contend that the defendant in error by and through the action of Charles E. Miles as her guardian, under the distribution made of said $15,-000, of the assets of said estate, as appears in the foregoing statement of counsel for plaintiffs in error, works an equitable estoppel against the said defendant in error as the ward of said guardian from contesting said will.

In their brief counsel for plaintiffs in error in commenting upon this branch of the case quote from the case of Van Duyne v. Van Duyne, 14 N. J., Eq., 49, wherein the Chancellor announcing the opinion m that case says:

“The rule in equity is well settled. A man shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if otherwise legal and well grounded, which shall defeat or in any way prevent the full effect and operation of every part of the will.”

An examination of this case shows that a bill was filed to en force a certain provision made in favor of the widow of the testator against certain real Estate devised by him to his son, wherein the support of the widow was made a charge upon said real estate and the same was made subject to the support of the wife of the testator during her widowhood. By answer the son set up that he did not take said real estate by gift, blit that he was a purchaser thereof for a valuable consideration, averring that he had rendered certain services to his father, the testator, after attaining his majority without receiving compensation therefor, and that the services so rendered were an equitable set-off against the value of said real estate so devised, and that therefore said real estate was not equitably chargeable with the support of said wido beyond the value of her dower therein. It is scarcely necessary to add that the defense here set up was held to constitute no defense to said bill. This is not new, but well settled doctrine, and it is quite apparent that the case cited is not applicable to or determinative of the question at issue here.

Counsel also cite in support of their contention the case of Hamblett v. Hamblett. 6 N. H., 333, decided in 1833, in which the first paragraph of the syllabus of the court in said case reads as follows:

“A party who has received a legacy under a will, can not be permitted to contest the validity of such will, without, repaying the amount of the legacy, or bringing the money into court. And the rule applies even if the party was a minor when the legacy was received.”

Upon its face, the ease cited would seem to have some application to the case at bar. Although an old case running back as it does seventy-five years and more when decided, but as was well said by another, “the principles of the Jaw when laid in reason never lose their force through the lapse of time. ’ ’ Let us examine the facts upon which this opinion rests. It appears that the action was based upon the will of David Hamblett executed December 30, 1816. An appeal was taken from the decree of the judge of probate in admitting said will to probate, to which an exception was taken on the ground that the testator did not have sufficient testamentary capacity at the time of its execution to make a will. It also appears that the appellant a short time before she became of age received the legacy given her upon said testator’s will. Numerous questions arose upon the record, among them, the question as to whether the appellant should not have brought her legacy into court that she received under said will before proceeding to contest said will, and the court held that she should adding that “such affirmance, however, is not an absolute bar against the party seeking to contest the will though under circumstances of delay connected with other circumstances, it has been held to preclude the party from contesting the will afterward. ’ ’ As treating of the injustice of permitting one w'ho has accepted and received a legacy under a will to hold it pending the outcome of a contest of such will, the judge announcing the opinion in said case says:

“True, the appellant when she received this legacy was a minor. But she was then, although not of legal age, of an age to exercise some discretion. She was then more than eighteen years of age, at which period her legacy was payable to her by the will. She was aided by her friends and connections and one of them actually agreed to be bound that she should execute a release when she became of age. The legacy was fairly paid, and for aught which appears, the avails are still in her possession. ’ ’

The main question raised in the ease cited was on the motion for a rule requiring the appellant to bring into court the legacy received by her under the will before proceeding to contest its validity. What the statutory provisions of the state of New Hampshire relating to minors were at that time do- not appear; nor does it appear that there was any statute in that state at that time containing any saving clause in favor of the disability of infants in the' matter of contesting a will; nor does it appear that the appellant was under guardianship and under bond, but it does appear that said appellant was then more than eighteen years of age, “of an age to exercise some discretion” when her legacy was payable to her by the terms of said will, and when she was then legally entitled to be paid her said legacy. It was paid to her, accepted and receipted for by her, and she held it, and then attacked said will for the alleged reason of “the undutiful conduct of the appellee towards her mother in requiring her to render an account of her administration in the probate office, and in other matters specified.” Can it be said that the case cited is decisive of the case at bar® Will it be claimed that the facts in the ease cited run parallel to the facts in the case at bar ? Here the defendant in error at the time her guardian received $5,000 of the division made of the $15,000 at the Thompson homestead was a mere child, incapable in law of acting for herself in any matters affecting her interests, whose keeping and care were in the custody of the law, confided to a trustee whose bond is her continuing security and protection and whose stewardship is controlled by law. In this connection we might mention Section 30939, General Code, by virtue of which probate courts are given special supervision over the estates of minors “'to. promote the faithful and correct discharge of the duties of guardians and to preserve the estates of minors for whom guardians are appointed” a provision intended to prevent the failure of guardians to do full duty in the administration of their trusts. Reverting to the New Hampshire case referred to, in that case the minor herself accepted and receipted for her legacy, but not so here. Presumably the defendant in error on account of her tender years knew nothing whatever of the transaction referred to at the Thompson homestead when said division was made in January, 1908, but it-appears of record that up to that time, at least up to the time of the commencement of proceedings herein, she has not received a dollar of the sum so received by her guardian, nor does it appear that said guardian has accounted for the same or any part thereof. There being no opportunity afforded her for a return of the money so received by her guardian, of course she could not restore it to the estate, nor could she be called upon to do so. Voglesang v. Null, 67 Texas, 465-468: Stull v. Harris, 51 Ark., 294. Nor was there any ratification of the act of her guardian shown, but a prompt avoidance of the same upon her attaining her majority followed as evidenced by the commencement of proceedings herein.

Beferring to the admission of the executors in dividing this estate to the extent of $15,000 between themselves and not including the same in their inventory of the estate assets, it was claimed that they wrere led to make such division to avoid the payment of taxes thereon. It may be that su-cli was their purpose, and if it was, it is unnecessary to add that such act was no less a violation of law and of trusteeship of estate property as well. Counsel for plaintiffs in error say ‘'it was irregular but not illegal.” We do not feel called upon to discuss the claim of the state upon estates for the payment of taxes, nor of the duties! of executors in respect to trust funds. Suffice it to say that the distinction sought to be made here by counsel in this matter does not appeal to the judgment or conscience of this court. Continuing counsel add: ‘' So that when Charles T. Miles collected the $5,000 from himself and his co-executor he was simply doing his duty, and the legal duty done binds his ward.” And the logic of this proposition, too, fails to commend itself to the approval of the court. An examination of this record shows that within a few days after their appointment and qualification, these executors, acting without bond, assembled the more available assets of this estate and parceled them out between themselves and the trustee of the residuary estate of said granddaughter, without any order or sanction of the court having jurisdiction over the distribution of estates, and without even making any return to said court of an inventory of such assets or of such distribution The statutes plainly point out the manner of making distribution of the assets of the estate of a deceased person, and it is enough to say that these statutes were not followed in this instance. Further, we dissent from the conclusion stated by counsel that such act of the guardian ‘ ‘ binds his ward. ’ ’ While the authorities in all jurisdictions are not in accord upon this subject, we believe the general rule is sustained by the weight of authority and upon reason, that the guardian can not thus bind his ward, and we therefore hold that the defendant in error is not equitably es-topped from maintaining this action to contest said will: 22 Cyc., 512 and cases cited: Hazzard v. Kelly, 96 O. S., 19; Lanning v. Brown. 84 O. S. 385.

The second ground of error alleged is the rejection of the tes timony offered by the witness Calvin Trott, called to testify on behalf of the plaintiffs in error, to a certain conversation had between himself and the said Phoebe Thompson, deceased, in reference to the latter’s will after the same has been drafted by one R. R. Mclntire, when the said Trott was called into the house of the said deceased to examine said will and inform her if the same properly stated and embodied her requests as made known to him The questions propounded to said witness were as follows:

“Q. * * * Now did you have a talk with Mrs. Thompson there about this will? * * *
A. I did.
Q. Now the question! You may state what she said and what you said.”

On objection being made the same was sustained by the court below and and exception duly taken. The question made is simply one involving the competency of the witness to testify to the conversation referred to. That the witness Trott was considered by the deceased as her attorney in relation to her will is apparent. Was the conversation referred to competent? If it was, it is conceded that it falls within the exception named in Section 11494, General Code, and which reads as follows:

“An attorney, concerning a communication made to him by his client in that relation, or his advice to his client; or a physician, concerning a communication made to him by his patient in that relation, or his advice to his patient. But the attorney or physician may testify by express consent of the client or patient: and if the client or patient voluntarily testifies, the attorney or physician may be compelled to testify on the same subject. ”

While in its final analysis the determination of what appeal's to be the issues as made by the evidence in the case" tending to show want of testamentary capacity on the part of the testatrix .and undue influence upon her, is not to be lost sight of, still the question here presented is one of the competency of testimony arising out of a confidential relation created by the act of the parties which is protected by law, unless it falls within the exception enumerated in said Section 11494. True, the testimony offered, if introduced, may have thrown light upon the state of mind and the expressed wishes of the testatrix, but the law haS wisely placed a ban upon and excluded communications between attorney and client pending professional relations, unless the party expressly waives such privileged communications. In their exhaustive research, counsel for plaintiffs in error cite us to numerous decisions of courts of last resort of various states holding — (1) that an attoimey may testify to communications made to him by a deceased client upon a contest of the validity of the will of such deceased client; and (2) that in a will contest a waiver of any disability growing out of the confidential relation and privileged communications made to an attorney by a deceased client may be made by the personal representative, executor or administrator. But it must be remembered that we have in this' state a statute prescribing a rule of evidence in this class of cases, which has been construed by the' Supreme Court of this state, and whose decision is controlling with this court. Decisions in other states are persuasive and useful only when the Supreme Court of this state has not passed upon the same or like questions presented for solution, but when so passed upon and adjudieated, such adjudication is to be followed by inferior courts. The case referred to is the case of Ausdenmoore et al, Executors, v. Holzbach, 89 O. S., 381, which we think is decisive of the principle involved in the question raised here. In that case the contention arose over the question of “the admissibility of the evidence of certain physicians touching the nature and seriousness of the injuries of the plaintiff below,” and the court in considering the exceptions mentioned in said Section 11494, namely, “but the attorney or physician may testify by express consent of the client or patient, and if the client or patient voluntarily testifies, the attorney- or physician may be compelled to testify on the same subject,” placed the following construction on said exceptions and held:

“This qualifying clause we hold to mean that there can not be a waiver except in two days: First, by an express consent to the patient, or by the patient taking the stand and voluntarily testifying as to the things and matters communicated to his physician, the latter being held to be in effect an express waiver as to that physician. There being no express waiver nor any testimony by the plaintiff, touching the things and matters communicated to such physician, whose testimony was excluded, we find there was no error. ’ ’

Here, as there, no express waiver was shown, not even a syllable of testimony having been offered to show that such communication was authorized by the deceased. Her lips were closed in death, and she could not be heard to testify. Of course it is unnecessary to add that the situation would have been different had the witness Trott signed said will as a witness, in which event he would have been released from the operation of said statute. Baird v. Dietrict, 28 O. C. A., 257.

Following the decision of the Supreme Court in the case referred to, we hold that the action of the court below in excluding the .testimony offered by the witness Trott was proper and that the same was not erroneous.

It was also contended on behalf of the-plaintiffs in error that the court below erred in its charge to the jury, especially in giving what is designated as Request No. 3, which reads as follows:

“Fraud is in its nature closely allied to undue influence and it is practically impossible to distinguish the two as the same evidence often tends to support each charge.”

The foregoing appears to be an extract from the text of Page on Wills, Section 122. and which appears to be supported by authorities cited in a note.

As we had occasion to remark at the outset of this opinion, the form of petition filed herein is authorized by statute, and while there may exist a division of opinion in the profession as to the propriety of such legislative enactment — overturning and setting aside as it does, in the opinion of many, the rules of pleading formally observed in such cases — it is a form of pleading authorized by statute and therefore adopted and followed: As was said by Judge Williams, speaking for the court, in the case of Dew et al v. Reid et al, 52 O. S., 519, (which was a will contesl case):

“While that issue may be made up either by the pleadings, or by an order entered on the journal of the court, it must, whichever the mode adopted, be the broad issue required by the statute, whether the instrument produced is the valid will of the alleged testator; and, as -the proof may be commensurate with the issue, any competent evidence tending to prove that, for any reason, it is not his valid will, is admissible, and should receive proper consideration by the jury. ’ ’

Hence the door is wide open for the admission of any competent evidence tending to prove the issue. Just how far the ques-~ tion of fraud may be removed'from the question of undue influence in a will case may be difficult of intelligent solution. Indeed the history of litigation of this character often-times shows that they are closely allied — so much so that they may be termed close neighbors, but whatever the fact, such fact does not lessen the duty of the trial court to properly instruct the jury in relation thereto. Here it was claimed on the part of the plaintiffs in error that fraud was not charged, nor was it shown upon the trial, the contrary being claimed on the part of the defendant in error While we recognize the general rule that the jury should be instructed with reference to the issues in the case on trial, and not be given in abstract and general terms, when such terms may mislead the jury, and further, that it is error to introduce into a charge an instruction on an issue not raised by the pleadings or evidence, we are far from being persuaded that a reading of the evidence contained in the bill of exceptions in this case does not furnish sufficient ground for the instruction given and as given At best, we do not think said instruction can be considered as prejudicially affecting the interests of the plaintiffs in error in this action.

As to the remaning ground of error, namely, that the verdict of the jury is against the weight of the evidence, it is a sufficient answer to this to say that the record herein does not make a ease to warrant the interference of the court on this ground.

■ The judgment of the court of common pleas is affirmed.

Houck, J. and Patterson, J., concur.


text:
    NO APPEAL WHERE WORKMAN IS INJURED OUTSIDE OF THE STATE.
    Court of Appeals for Hamilton County.
    The Industrial Commission of Ohio, Wallace D. Yaple, M. B. Hammond and T. J. Duffy, Comprising Said Commission, v. Lena Ware.
    Decided, June 18, 1917.

      Workmen’s Compensation — Common Pleas Court Without Jurisdiction on Appeal — Where Injury Occurs to an Employee of an Ohio Contractor — Engaged in Work Outside of the State.

    There is no appeal from the decision of the Industrial Commission in the case of an injured employee of an Ohio contractor who has contributed to the state insurance fund, where his injury occurred outside of the state but while in the course of his employment.

      John V. Campbell, Prosecuting Attorney, and Henry C. Hauck, Assistant Prosecuting Attorney, for plaintiff in error.

      Fulford, Shook & Wilby, contra.
   Hamilton, J.

Heard on petition in error to the Common Pleas Court of Hamilton County, Ohio.

This ease had its origin in an application for compensation under what is known as the workmen’s compensation law filed with the Industrial Commission of Ohio because of the death of one Sam Ware, husband of the defendant in error and employee of the firm of Platt & Dickinson, who were contributors to the compensation fund.

Ware met his death in the course of his employment, July 30, 1915, in the city of Covington, Kentucky, his employers being brick-work contractors of Cincinnati, O'hio. Lena Ware, wife of the decedent Sam Ware, made claim as the wife and depend-ant of the said Sam Ware.

Among other facts, it appeared that the said decedent Sam Ware and the wife, Lena Ware, had not lived together for about four and one-half years. The industrial commission denied the right of the said Lena Ware to participate in the compensation fund, and she thereupon, ,as such claimant, appealed to the Common Pleas Court of Hamilton County, Ohio, where her appeal was tried to the court, a jury having been waived, resulting in a judgment in her. favor.

Several questions of error are urged by plaintiffs in error as grounds of reversal, but the controlling question is, did the common pleas court have jurisdiction to entertain the appeal and hear the cause, it being admitted that the place of injury was in the state of Kentucky.

Section 1465-90, paragraph 43, provides as follows:

“The board shall have full power and authority to hear and determine all questions within its jurisdiction, and its decision thereon shall be final. Provided, however, in case the final action of such hoard denies the right of the claimant to participate at all in such fund on the ground that the injury was self-inflicted, or on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant’s right, then the claimant; within thirty (30) days after the notice of the final action of such board, may, by filing his appeal in the common pleas court of the cou/nty wherem the injury was inflicted, be entitled to á trial in the ordinary way, and be entitled to a jury if he demands it. In such a proceeding the prosecuting attorney of the county, without additional compensation, shall represent the state liability board of awards, and he shall be notified by the clerk forthwith of the filing of such appeal.” * * *

The only right of .appeal from the decision of the industrial commission is contained in this statute, and it can be conferred only by statutory provision. The plain wording of the statute is to the effect that the appeal must be filed “in the common pleas court of the county wherein the injury was inflicted,” and it being admitted and shown to be the fact that the injury in this case was inflicted in the state of Kentucky, it becomes at once apparent that the decision of the board was final.

There being no appeal provided for such a ease as the one at bar, the eommon pleas court erred in entertaining the appeal .and rendering a judgment therein, was without jurisdiction and its proceedings are null and void. It follows that the judgment of the common pleas court must therefore be reversed, and its judgment and proceedings held for naught.

Jones, P. J., and Gorman, J., concur.


text:
    ADMISSIBILITY OF ATTEMPT BY COUNSEL OF THE ACCUSED TO BRIBE WITNESSES.
    Court of Appeals for Butler County.
    Mefford v. State.
    Decided, August 5, 1920.

      Criminal Latá — Evidence as to Attempt of Counsel of the Accused to Bribe "Witnesses Inadmissible, "When.

    In a criminal prosecution it is error to admit evidence of an attempt by the attorney for the accused to bribe witnesses or suppress evidence against the accused, where it is not proven that the accused was connected with such attempt.

      Edgar A. Belden and U. E. Bickley, for plaintiff' in error.

      Isaac C. Baker, Pros. Atty., for defendant in error.
    Heard on error.
   By the Court.

Harold Mefford was jointly indicted with several others for robbery in Butler county.

The evidence showed that two Italian workmen were enticed by a woman, one of the defendants, to a saloon late one night, and, after leaving1 it, they were set upon and robbed by several men. The Italians were unable to identify Mefford, and the direct evidence of his participation in the crime was furnished by those who had been his co-defendants. All of the other persons indicted pleaded guilty and Mefford alone stood trial. In the course of the introduction of the evidence on the part of the state the witnesses were allowed to testify that U. F. Bickley, who appeared as one of the attorneys for the defendant at the hearing, had said to the witness: “If you don’t come up and testify before the grand jury against Mefford, I’ll help you out”; “if you plead not guilty, they can’t prove it,” “you ain’t guilty until you are proved guilty.” Similar testimony was given by several witnesses in respect to the conduct of the attorney, all over the objection and exception of the defendant.

If the attorney had attempted corruptly to suppress evidence, his conduct would have constituted an offense under the criminal law of the state. Section 12866, G. C.

There was no testimony tending to connect Mefford with the alleged action on the part of his attorney. A client is not responsible ' for any illegal action taken by his attorney, which he did not advise, consent to, or participate in, and which was not justified by any authority he had given. 6 Corpus Juris, 661.

Attempts by persons other than-the accused to bribe witnesses, or otherwise to suppress or manufacture evidence, are evidence against the accused when, but only when, it is proven that lie was connected with such attempts. Acts and statements of third persons, not known or authorized by him are inadmissible. 16 Corpus Juris., 556.

In view of the failure to connect Mefford with the statements, it was error to admit the evidence. It was of such character that its admission could not fail to have prejudiced him. Attempts to suppress evidence indicate a consciousness of guilt, and if proved to have been made by defendant are highly probative of criminality.

In view of the entire record the court does not find the judg.ment to be manifestly against the weight of the evidence.'

For the error in admitting the testimony of the alleged statements of Bickley, the judgment will be reversed and a new trial ordered.


author: Houck, J.

text:
    REPLEVIN FROM PURCHASER OF PROPERTY COVERED BY CHATTEL MORTGAGE.
    John W. Keller v. T. Oscar Evans.
    Court of Appeals for Muskingum County.
    Decided, April 15, 1920.

      Caveat Emptor — Doctrine, of, Applied to Purchaser of a Mortgaged Chattel Upon Which he had Expended Money, hut lohich Could Still he Identified — Replevin.
    The mortgagee of an automobile, which has been sold without his knowledge or consent, may replevin the machine from the purchaser, notwithstanding permanent repairs have been made thereon by the purchaser. ,

      A. A. George, for plaintiff in error.

      E. R. Meyer, for defendant in error.
   Houck, J.

The proceeding in this court is one in error and comes here from the common pleas court of this county.

The suit below was one in replevin. T, Oscar Evans, the de fendant in error here (plaintiff below), brought his suit in replevin against John W. Keller, plaintiff in-error here (defendant below), claiming the possession of one No. 37 touring car, serial No. 371,5-37, with extra tire, tools, and standard equipment.

The following are the conceded facts.—

1. Plaintiff below, on April 24, 1917, sold the car with equip? ment, to Lawrence Wilkinson and Jennette Wilkinson, at Akron, Ohio.

2. The Wilkinsons resided at Akron at that time.

3. As part of the purchase price of the car, Wilkinson and his wife executed and delivered to plaintiff a promissory note in the sum of $350, payable in monthly installments of $30 each.

4. At the same time, they executed and delivered to plaintiff a chattel mortgage conveying to him the car.

5. The chattel mortgage was duly filed with the recorder of Summit county, Ohio, on May 3, 1917, at eleven o’clock in the forenoon.

6. The chattel mortgage contained a condition, in substance, that if Wilkinson and wife should pay the sum and interest at the time and manner mentioned, and shall’ keep and perform the covenants and agreements contained in the chattel mortgage, the same should be void but otherwise to remain in full force; that' in case of default in payment of said money at the time or times at whiph the same should be due and payable, or if the Wilkinsons should remove the goods and chattels, or any part thereof, the plaintiff should have the right to take possession of the property and sell the same.

7. Without the consent and without the knowledge of plaintiff, the Wilkinsons removed the car from the county of Summit and sold it to Keller. •

8. Keller put permanent repairs on said automobile in a sum amounting to $176.87.

Question: — Will replevin lie in the instant case as against the permanent repairs placed on said automobile by Keller?

This we answer in the affirmative. Under the conceded facts in this case, we are bound to answer the inquiry just as we have— in the affirmative. The doctrine of caveat emptor certainly applies to Keller. He was bound to know that the seller of the automobile was the owner of it, and if he purchased it (although in good faith) when in fact the seller had no right to dispose of it, he can not claim title by reason thereof. If, after getting possession of the automobile, in question, he placed repairs on a •car the ownership of which was in some person other.than the' one who claimed to be the owner at the time Keller purchased it and of whom Keller claimed to have purchased, he (Keller) placed such repairs thereon at his own peril and, as against- the rightful owner of the car, can not legally hold the permanent repairs placed thereon.

It is, however, a settled rule of law (violated, however, by the statute relating to replevin), that no man can be deprived of his property by another without his consent: and if he elects to follow añd reclaim it, whether owner or not, if entitled to the immediate possession, he may obtain possession by an action of replevin, into whose hands soever it may como, whether the person from whom he reclaims it, or the person who enhanced its value, was a willful or involuntary trespasser. But, in such ease, the property must be identified; for if its identity is lost by being converted into another species, or otherwise, an action of replevin can not be maintained.

In the ease at bar, the property was not changed into another species, but simply enhanced in value by the accessions placed thereon by the trespasser, Keller. Hence, under such circumstances, Evans, the owner and the one entitled to the possession of the said automobile, can not be compelled to pay Keller, the trespasser, for the improvements on said automobile, as the law neither divests Evans of his property nor requires him to pay for such’improvements made without his consent, approval, or authority.

It, therefore, follows that the judgment of the common pleas court is right and should be affirmed.

Judgment affirmed.

Shields, J., and Patterson, J., concur.


author: Hughes, J., Crow and Warden, JJ.,

text:
    CONSTRUCTION OF THE BULK SALES STATUTES.
    Court of Appeals for Seneca County.
    John Fayes v. Peter Kieffer, Constable, etc., et al.
    Decided, March 22, 1921.

      Bulk Sales — Creditors Who File an Application to have a Trust Declared — Entitled to Benefit under Section 11103-1.
    Only such creditors as comply with Section 11103-1 may question a bulk sale of a stock of merchandise unless it is made in fraud of creditors.
   Hughes, J., Crow and Warden, JJ.,

concurring.

The plaintiff brought an action against the defendant as constable, to recover possession of a stock of goods held by the constable under a writ of attáehmént.

The judgment below was in favor of the defendant and the parties have in this court, by written agreement conceded the facts upon which the lower court entered this judgment, to be in substance as follows:

One Williams sold to plaintiff, his entire stock of goods, groceries and fixtures without complying with the bulk sales statutes of Ohio.

A creditor of Williams, about forty days after the sale to Williams, brought an action of attachment and the constable took possession of these goods thereunder, upon the theory that the sale of the goods by Williams to Fayes was void under Section 31103-1.

There were no steps taken by this creditor or any other creditor, in the court of common pleas or any other court having jurisdiction, to have the purchaser Fayes declared a trustee, accountable to the creditors of Williams.

If we had no bulk sales -statutes in Ohio, this sale and delivery of the goods to Fa3ms by AVilliams would be a valid sale, and ho creditor could attack Farms’ title without showing that it had been made in fraud of creditors, which is not claimed here.

We are quite clear that the only creditors for whom such a pur chaser as Fayes might- be made the trustee and held accountable to, are the creditors, and those creditors only, who file their application under Section 11103-1, General Code, in the proper court to have the trust declared.

That this is the correct interpretation of our bulk sales statutes we think is made manifest by the judicial pronouncements. 10 Ohio Appellate Report, 45; 31 O.C.A., —; 100 Ohio State, 58.

Upon authority of these two eases we are quite satisfied that the judgment of the court below is contrary to law and that the motion for new trial should have been allowed upon that ground.

Judgment reversed.