author: Chittenden, J.

text:
    ADMINISTRATOR. WITHOUT INTEREST IN ANNUITY BONDS.
    Court of Appeals for Hamilton County.
    Mark A. Crawford, Administrator, v. The Foreign Christian Missionary Society; and Mark A. Crawford, Administrator, v. The American Christian Missionary Society.
    Decided, March 8, 1915.

      Gifts — Donations to a Religious Society — Evidenced by Bonds Upon Which Annuities Were Paid — Held to Have Been Executed Gifts.

    Donations made by the decedent to the defendant society, receipted for by papers denominated annuity bonds and which recite that such donations are executed gifts to the society and are to belong to such society from the date thereof without any account or liability therefor, and which contain an agreement to pay an annuity to the donor during his lifetime, and such annuities being paid to the time of the donor’s death, are in fact executed gifts in which the administrator of the donor has no interest.

      W. C. Lambert and Guy W. Motion, for plaintiff in error.

      Galvin ■(& Galvin and PL. A. Bayless, contra.
   Chittenden, J.

Plaintiff below, Mjark A. Crawford, as administrator of the estate of John F. Davis, deceased, began suit in each case to recover an amount of money which it was alleged the defendant had received for the benefit of the deceased or his estate. The defendants are religious organizations formed for the purpose of promoting the Christian religion.

It appears that at various times from 1897 to 1909, Mr. Davis had given various sums to these organizations, amounting in the aggregate to more than $30,000. Upon receipt of a given amount the societies issued to him a paper denominated an annuity bond. These bonds, in substance, recite that Mr. Davis had donated to and paid into the treasury of the society a specified amount of money, and recite that such sum so donated by him is to be considered as an executed gift to said society and to belong to said society from this date, without any account or liability therefor. It is further provided in the bonds that the society should pay an annuity of a given amount, in semi-annual payments, such payments to cease upon the death of the donor. These annuities ranged from four to six per cent, on the amount of the donation.

Without undertaking to discuss in detail the interesting arguments of counsel, we will state that it is our conclusion that the transaction constituted an executed gift, and that the paper issued by the society and denominated an annuity bond is a complete and specific declaration that it is a completed and executed gift. Such paper not only constitutes a declaration on the part of the society that it is receiving the money as a gift, but it is likewise a declaration upon the part of the donor who accepted these bonds and retained them during his lifetime. Whether the agreement upon the part of the society to pay the annuities could have been enforced by the donor, need not here be considered, because the societies did in fact pay to the donor such annuities until the time of his death.

Entertaining the views above announced, it follows that the .judgments should be, and the same are hereby affirmed.

Richards, J., and Kinkade, J., concur.


source: Caselaw Access Project

author: HOUCK, J.

license: Public Domain

text:
    NEGLIGENCE IN PLACING A LOAN.
    Court of Appeals for Holmes County.
    Robert S. Torbet v. Nora Young.
    Decided, November 1, 1915.

      Waiver by Silence of Trial to Jury — Loan Placed on Property to Which Deed Had Been Forged — Agent Acting Without Pay and Claiming to Have Been Duly Diligent — Held to Have Been Negligent and Held Liable to the Owner of the Funds.

    1. Where so far as the record discloses, a party sat by in silence and permitted an action for money only to be tried without the intervention of a jury without interposing an objection thereto, he is es-topped from complaining for the first time in a court of review that he was prejudiced thereby.
    2. An agent or bailee, serving without pay, made a loan on farm property to a stranger the title whereof was shown by an abstract to be perfect in the grantor of the borrower, who exhibited an unrecorded deed to the property which was placed on record before the loan was consummated. The deed proved to be a forgery, and the owner of the funds loaned brought an action against the party who acted for her in making the loan for the amount of her loss. Held:

    The making of the loan to a stranger, without further inquiry than as to the validity of the title in his grantor, was gross negligence, and plaintiff is entitled to judgment for the full amount of the loss.

      Taggart ■<& Boss and N. Stilwell, for plaintiff in error.

      C. B. Cary, contra.
   HOUCK, J.

This is a proceeding in error seeking to reverse a judgment of the court below in a suit in which the present defendant in error, Nora Young, was plaintiff, and the plaintiff in error, Robert S. Torbet, was defendant. The petition of the plaintiff below is as follows:

“Plaintiff in her petition avers that some time prior to the 14th day of October, 1910, the defendant was employed as the agent of plaintiff to obtain and make for plaintiff safe loans secured by mortgage on real estate of which plaintiff had knowledge, in the vicinity of defendant’s home in Ripley township, Holmes county, Ohio, and on or about September 12th, 1910, the defendant received from plaintiff about $2,800 in money to be held by him in trust for plaintiff, and to be used by defendant for said purposes, and for no other purpose; that defendant has failed and refused to comply with and carry out the terms and conditions of said agency and trust, and refused to account for said money on demand, and prays for an accounting and for judgment for the amount found to be due, and for other relief, and for costs.”

The defendant below filed an answer setting forth two defenses, the first defense being a general denial and the second defense being in substance as follows:

“That on or about September 10th, 1910, and for a long time prior thereto he received from plaintiff divers sums of money and at her request made loans and investments in her name; that on or about September 12th, 1910, he received $2,800 for said plaintiff, and informed her of the fact, and at her request retained said money, to be loaned and invested for her; that he loaned said money to one William Hoover, who represented himself to be the owner of a farm of ninety-seven acres situated near the village of Dalton in Wayne county, Ohio; that. Hoover executed his promissory note for $2,800 with interest at six and one-half per cent, due in three years, and his mortgage deed conveying said farm to plaintiff to secure said note, and delivered said note and mortgage to defendant, and that said defendant placed said nóte and mortgage with other papers and evidences of indebtedness belonging to plaintiff, which were deposited in the Farmers Bank at Shreve, Ohio; that all of said defendant’s acts relating to the loaning of said money were in good faith, without compensation and wholly gratuitous, and that in all of his acts pertaining thereto he exercised reasonable care and prudence.”

The answer further alleges, and in detail, that notwithstanding the fact that it was afterwards learned that the deed to said ninety-seven acre farm upon which said $2,800 loan was made had been forged by said Hoover, and although Hoover had not the legal title to said farm, yet said loan having been made in good faith, and he (Torbet) having exercised reasonable care and prudence, prays to go hence without day.

A reply in the nature of a general denial was filed by plaintiff below to this answer, and upon the issue joined the ease was submitted to the court upon the evidence, without the intervention of a jury. The record is silent as to anything relating to the submission of the cause to a jury. The court found for the plaintiff below in the sum of $2,800, with interest from October 14th, 1910. The plaintiff in error seeks a reversal of this judgment upon two grounds: first, that the cause being-one triable to a jury the court below erred in permitting the same to be tried without the intervention of a jury; second, that the judgment is manifestly against the weight of the evidence and is contrary to law.

Proceeding now to the alleged errors, let us first determine whether or not the action at bar is for the recovery of money only. This must be determined from the language of the petition and the relief sought therein. Without discussing the question we think the allegations of the petition constitute a cause of action for the recovery of money only and therefore is triable to a jury. Having arrived at this conclusion, the next inquiry is: Have the rights of the plaintiff in error been prejudiced by the court trying the case and rendering a judgment without a jury having been first waived? The record shoAAs that both parties appeared and without objection or question as to the right of the court to try and determine the cause submitted the same to the court, and the first objection in that regard is made in this court. No question is made here that the court below was, without jurisdiction to hear and determine the rights between the parties, but it is claimed that being an issue triable by jury that it could not be tried by the court without a waiver by the parties of a jury, and there being no waiver by the parties of record the judgment should be reversed.

So far as appears from the record here presented the defendant below preferred to have the case tried to the court and not submitted to a jury; he made no demand for a jury trial; he sat by in silence and permitted a trial to the court without interposing any objection thereto, and made none until after the issues Avere found against him, and he certainly is now estopped from making any such claim. We think the rule of law here laid down is Avell established in Ohio, and we need refer to but two cases; Bonewitz v. Bonewitz, 50 O. S., 377-378, where the court say:

“To submit a case to a court is. an affirmative act; it is to ask the court to hear the evidence, consider it and apply the law. What more potent consent could be given than this? A jury was not demanded because in all probability the counsel and the court alike regarded it as a court and not a jury case. * * But actions sometimes speak louder than words. It was not until after the court had found and adjudged against the defendant that he discovered he had been prejudiced by not having his case tried to a jury. His objection to the mode of trial we think comes too late; to sustain his claim would seem to be trifling with justice. He proceeded to trial, without objection, to a court having jurisdiction of the parties and capable of being clothed with jurisdiction o£ the subject-matter for all purposes, taking his chances on a favorable result, and can not, now that the chance is turned against him, be heard to question tile authority of the tribunal to which he consented to submit his cause.”

And also the case of Lingler v. Wesco, 79 O. S., 243, where the court say:

“Therefore it appears that no one objected to the court hearing the evidence and passing on it. No one asked for a jury, but the parties proceeded with the submission of the ease. The condition of the record here warrants the use of the rule established in Bonewitz v. Bonewitz, 50 Ohio State, page 373: A party may waive his right to a jury trial by acts as well as by words.”

Coming now to the second ground of alleged error, namely: Is the judgment manifestly against the weight of the evidence and contrary to law? Counsel for plaintiff in error contend that the said plaintiff in error occupied the position of agent or bailee of the defendant in error, without pay, and being a gratuitous agent or bailee could only be held liable for acts of gross negligence. Admitting that to be the law, do the facts in the case at bar as disclosed by the record, and applying thereto the well established elements necessary to constitute gross negligence, warrant the finding of this court that the plaintiff in error was guilty of gross negligence; or did he, under all the circumstances and surroundings, act and do in the premises and exercise such care as a person of common prudence should have done? Counsel for plaintiff in error inquire, “What could Torbet have done that he did not do to be more careful in negotiating this loan? He was informed by Judge Weiser of the character and value of the land; he acquired^ an abstract of title which showed the title to be perfect; he insisted that the abstract be made by attorneys in whom he had confidence and who had been attorneys for Mrs. Young in her claims and partition suit; he saw the note and mortgage signed; took it to the recorder’s office and had it recorded; saw that Hoover had the deed transferred at the auditor’s office and duly recorded, and retained the abstract in his possession, placing the note with the rest of Mrs. Young’s papers.”

We think these inquiries would be pertinent if the loan that Torbet was about to make for Mrs. Young was being made to the Mosers, the alleged grantors in the deed to Hoover, but the loan was being made to Hoover, and it seems to the court that the real foundation or basis of the loan was the strength of the title in William Hoover. The loan was being made to him, and Torbet’s inquiries and investigations should have at least been directed as to the title in Hoover. Hoover was a perfect stranger, and we might ask, What Inquiry did Torbet make as' io him? Not any! What inquiry,‘if any, did any of the persons in interest make as to the standing, honesty or integrity of William Hoover? Not any! A stranger, unknown to Torbet or any one connected with the transaction, was entrusted with the duty of seeing that the deed from Moser to him was properly executed — which afterwards proved to be a forgery! Hoover stated that he was a widower, and without any inquiry on the part of Torbet to ascertain as to the truthfulness or untruthfulness of that statement he was permitted to sign the mortgage alone, and received the $2,800 from Torbet. Without any acquaintance with or knowledge of Hoover on the part of Torbet prior to this transaction, he assigned the $2,800 certificate of deposit over to him, and at least stood by and saw him receive the money from the bank on this certificate of deposit. All of this was done with a stranger; no one had recommended him to Torbet, and so far as the record shows he- made no inquiry concerning ILuover. What inquiry did Torbet make of the grantors in the deed, or of the witnesses to it, or of the notary who was reputed to have acknowledged it? Not any! In the face of these facts can it be properly claimed that plaintiff in error exercised that care and prudence required of a gratuitous agent or bailee? Certainly not. What constitutes gross negligence has been defined by our Supreme Court in the case of Johnson v. State, 66 O. S., 67-68, where the court say:

“Negligence may consist of acts of omission as well as commission, and what may be mere ordinary negligence under one class of circumstances and conditions may become gross negligence under other conditions and circumstances. Negligence is the failure to exercise ordinary care. Gross negligence may consist in failure to exercise any or very slight care. There are other definitions, but these are sufficient now for our purpose, so we may truly say that negligence differs only in degree. With this we can not overlook what experience has taught for many years: that what may seem ordinary negligence' when contemplated by one mind may be regarded by another as very gross negligence. The inferences drawn from the same facts by different minds may often greatly differ. ’ ’

Applying this rule of negligence to the facts in the present-case the plaintiff in error was certainly guilty of such negligent acts of omission as well as commission as would not justify a reversal of the judgment below. We think the claim made by the plaintiff in error is untenable, and finding no error in the record prejudicial to the rights of plaintiff in error the judgment of the common pleas court is affirmed.

Shields, J., and Powell, J., concur.


author: Jones (Oliver B.), J.

text:
    INVALID GIFT BY AN AGED WOMAN.
    Court of Appeals for Hamilton County.
    Annie Laws and Alice Laws v. James M. Morley et al, Administrators of Ellen Lehane, Deceased.
    Decided, December 13, 1915.

      Action for Recovery■ of Corporate Stock — Validity of Gift of, Denied— Contractual and Testamentary Capacity Distinguished.

    1. An action for recovery of the value of corporate stock, received by the defendant as a gift from one alleged to have been incompetent by reason of senility, is an action for the recovery of money only where the stock has been transferred by the donee.
    2. It is not error to permit, during trial, an amendment which eliminates a charge of fraud and substitutes therefor a charge of undue influence; particularly where the jury subsequently found that the decedent (the donor) was of unsound mind but that no undue in- - fluence was exerted; nor is it error to refuse a continuance because of such an amendment.
    3. Contractual rather than testamentary capacity is required to uphold a gift of corporate stock, made by an aged woman without immediate prospect of death and rendered immediately effective by assignment and delivery.

      DeCamp & Sutphin, for plaintiffs in error.

      Hor siman H or siman, contra.
   Jones (Oliver B.), J.

The action under review in these proceedings was brought in the common pleas court by defendants in' error, who were plaintiffs below, as the administrators of Ellen Lehane, deceased, against plaintiffs in error, who were defendants below, to recover the value of twenty-seven shares of preferred stock in the Procter & Gamble Company, which had been transferred by her without consideration to one of the defendants for the benefit of both, five days before her death.

Ellen Lehane had been employed as a servant in the household of their parents from the time defendants were small children and after their parents’ death .remained with them in the same capacity continuously until defendants removed from their old homestead on Dayton street into a new home upon the hill, when Miss Lehane, then seventy-five years of age, concluded to give up active work, and secured quarters with friends or relatives, living thus upon her income for a period of about five years, during the remainder of her life. She had lived as a faithful servant in defendants’ family for a period, in all, of forty-three years.

While her wages were small, she was frugal in her habits, was under little expense, and had carefully saved, depositing money from time to time in a savings bank, from 1895 up to the time of her death. Her accumulations thus made were invested partly in the Procter & Gamble stock in question in this case, which was purchased about the time of the organization of that company in 1890, and partly in stock of the American Sugar Refining Company and American Locomotive Company, which was purchased in parcels from time to time, in 1907 and previous thereto. These investments were made with the advice and assistance of the brother of the defendants. '

While Ellen Lehane was living with defendants and their family her relations «with them were of an intimate and friendly character. The defendants were looked upon by her as confidential friends and advisers and they continued in that relation up to the time of her death, looking after her personal comfort and assisting her in her business matters. She could neither read nor write; she signed her name with a mark. One of the defendants would draw checks for her on her account in the savings bank and would collect the dividends on her stocks, bringing her the cash for them. They arranged for a telephone in her room so they could converse with her at will, and by means of which she could reach them whenever she wished to or needed their assistance. They called upon her at her room from time to time, and frequently made her little presents.

Ellen Lehane had never married, and she had no brothers or sisters living at the time she left the service of the defendants, but she had numerous relatives, descendants of deceased sisters, with whom she was on good terms, and especially one nephew of whom she was quite proud, the Reverend P. P. Crane, a Catholic priest who lived in St. Lonis, and Mrs. May Sommers Soards, a grand-niece, of whom she was quite fond, and with whom she lived for a time, and who remained attentive to her up to the time of her death.

The stocks which constituted the small fortune of Ellen Lehane were at her request kept for her by the brother of the defendants in his safe deposit box. At a meeting in his office in 1907, when Mr. Laws and Miss Annie Laws were present with Ellen Lehane, she executed assignment blanks assigning all the sugar and locomotive stock to her nephew, Father P. P. Crane. The transfer of this stock was not then made, but the stock and the assignments were left with Mr. Laws to give to Father Crane at her death, and no change was made as to the dividends which were to continue to be paid to her during her lifetime, to live upon. These assignments were kept by Mr. Laws until after her death, when he sent them to the respective companies and had new certificates made in the name of Father Crane and delivered them to him as hereinafter stated.

On Monday morning, October 28, 1912, May Sommers Soards visited her aunt at her home and found her prepared to go out with one of the defendants to Mr. Law’s office, but learning that she did not feel well, Mrs. Soards at her request telephoned Miss Laws and postponed the trip until the next day. On the following day, Tuesday, at about ten o’clock Miss Alice Laws called at the Phelan home where Ellen Lehane then lived, at Broadway and New street, and together they walked to Mr. Law’s office in the First National Bank Building at Fourth and Walnut streets. There they met Mr. Laws in his private office where, he says, he was told by Ellen Lehane that she desired to give her Procter & Gamble stock to “her girls,” as she called the defendants, that they had been kind to her and she wished to return their kindness. He says he told her that if she gave it to them she should ‘ give it to them out and out, without any strings to it, ’ ’ and she said that was what she wanted to do. Thereupon he sent his son,' who was in the office, to the safe deposit box for the certificate of stock, and had his bookkeeper, Mr. Muller, prepare an assignment of the stock. At the suggestion of Mr. Laws that the transfer should not be made to both but to Annie Laws alone, it being understood that sbe would bold it for her sister and herself, it was drawn to Annie Laws. This assignment was then signed by the name of Ellen Lehane, who made her mark, which was witnessed by Mr. Muller and Harry L. Laws and by Miss Alice Laws, and the paper was left in the hands of defendants’ brother.

Miss Alice Laws and Ellen Lehane then returned, walking back to Ellen’s home, where Alice left her at the foot of the stairs. Mrs. Phelan seeing her come, assisted her upstairs and, finding her in a state of collapse, put her to bed and gave her stimulants. She was about the house the rest of the week, suffering from a cold, “until Saturday, when she consented to have a doctor called. The doctor found her suffering from a rheumatic and bronchial condition, of which she had been complaining for some five or six weeks, and he prescribed for her. She was found dead in bed Sunday morning, November 3. The doctor testified that “the indirect cause of her death was a senile degeneration of all of her organs, that is, her heart and lungs. ’ ’

Miss Annie Laws, who had called and seen her on Thursday, was notified at once of her death by Mrs. Phelan, and she came and took charge of affairs and made the necessary funeral arrangements, sending for Father Crane, who came on from St. Louis and performed the church services.

Upon the request of Miss Annie Laws Father Crane came to Cincinnati December 2, 1912, and met her and her brother, and was told by them of the transfer to him of the sugar and locomotive stocks, the new certificates for which in his name were then delivered to him. On his inquiry in regard to Procter & Gamble stock there is a conflict of testimony, Father Crane saying that Mr. Laws told him it had been sold by him years ago to invest the money in these stocks, while Mr. Laws testified that he told Father Crane that Ellen had disposed of the stock before her death, without giving him any of the particulars as to how or when she had disposed of it.

The certificate for the twenty-seven shares of Procter & Gamble stock, together with the assignment to Annie Laws, was sent by Harry L. Laws, through his broker, for transfer on Thursday, October 31, 1912, and it was transferred to Annie Laws. It was sold by her brother for her December 16, 1912, for $190 per share, and the proceeds were placed by Harry L. Laws in an account to the credit of “Alice Laws, Special.”

On December 16,1912, a letter was written by the attorneys of the plaintiffs below to Miss Annie Laws advising her that they had been appointed administrators of Ellen Lehane’s estate and asking for information regarding it. She responded with a letter referring them to Father Crane for such information. Thereupon proceedings were had in the probate court for a citation against Annie Laws and Harry Laws to appear and disclose to the court their knowledge concerning the property and effects of Ellen Lehane’s estate. Learning, as a result of this citation, of the transfer of this stock, plaintiffs brought this action, which resulted in a verdict and judgment in their favor.

The original petition, setting out but one cause of action, was for the recovery of the value of this,stock. While two causes of action were set out in the fourth amended petition, on which the trial was had, it was alleged that the defendants had sold the stock and had appropriated its proceeds to their own úse. There could be, therefore, no relief obtained by setting aside the transfer, or seeking to recover the stock itself. It was an action for money, the value of property which defendants claimed had been given to them, but the validity of which gift was denied by plaintiffs upon two grounds: first, because of unsoundness of mind on the part of their intestate; second, because of undue influence on the part of defendants.

It was not necessary to set out two causes of action. The primary demand was for the recovery of money only, as was held by this court in dismissing the appeal sought to be taken from this judgment.

Nor was it improper in the trial court to permit an amendment of the petition during the trial by the elimination of the charge of fraud as a ground of recovery and substituting the charge of undue influence, nor was it error to refuse a continuance because of that amendment. Any possible error because of this amendment is removed by the answers given by the jury to the interrogatories submitted at the request of defendants. By these answers the jury, found that at the time of the alleged gift the decedent was of unsound mind, but that no undue influence had been exercised upon her by the defendants.

The judgment is therefore based upon the finding that decedent was of unsound mind, and many of the errors claimed by defendants in error in regard to the matter of undue influence are thus necessarily eliminated from consideration.

It is contended that the court erred in its general charge, in discussing the issue of unsound mind. Plaintiffs in error insist that decedent must be required to have merely testamentary capacity at the time of the execution of the assignment of this stock in order to perfect it as a valid gift.

It is true that a person may lack capacity for the transaction of ordinary business, and lack contractual capacity, and yet may have testamentary capacity (Wadsworth v. Purdy, 12 C.C. [N.S.], 8, 12). A less degree of mental capacity is required to make a will than to make a contract or to transact ordinary business involving a contest of reason, judgment, experience and the exercise of mental powers not at all necessary to the testamentary disposition óf property (Rowcliffe v. Belse, 261 Ill., 566, 573). It is, however, doubtful whether mere testamentary capacity would be sufficient to sustain a gift such as is claimed here. A will disposes of property to take effect only after death. It can be revoked at any time by the testator up to the time of his death. But a gift such as this, once made, is irrevocable by the donor alone, without the consent of the donee. It was not made to take effect at death, but was to be operative at once. It would divest Ellen Lehane of all of her property except merely the income of the stock to be given to Father Crane at her death, which also she had reserved no right to sell or recover back. She made no condition to retain the income until death, as to this stock, but simply relied upon a general understanding that the Masses Laws would look after and supply her wants without any definite obligation on their part in return for the gift. While she-was old, she had no immediate prospect of death, but might have lived for years. Under these circumstances it would require a contractual rather than testamentary capacity to uphold such a gift.

The part of the charge particularly objected to by plaintiffs in error, in which the court says that

—“the jury would be warranted in finding Ellen Lehane of unsound mind”' — ■

when the purported gift was executed, if she was then
—“so far incapable of acting rationally in the ordinary affairs of life and of comprehending- the nature and value of her property as to be incapable of transacting or procuring to be transacted ordinary business, and of reasonably understanding the business or transactions in which she engaged as to the nature, purpose, effect or result, and did not act rationally in the ordinary affairs of life”-—

taken in connection with the finding of the jury that she was then of unsound mind, would indicate a greater degree of incapacity found by the jury than was deemed necessary by plaintiffs in error to invalidate the gift.

While the charge may be subject to criticism as to certain independent paragraphs when taken alone, taken as a whole, as it must be, we find it without error prejudicial to plaintiffs in error. And the court did not err in refusing to separately charge the jury, when so requested by plaintiffs in error, that the issue of fraud was not in the case, the jury having then been distinctly charged to ‘' only regard the issues made by the pleadings, which are unsoundness of mind and undue influence.”

A reading of the argument, in full, as made to the jury by Sir. ILorstman, on which plaintiffs in error predicate a claim of misconduct of counsel, fgils to show that the bounds of legitimate argument have been so far exceeded as to create error to their prejudice.

A careful consideration of the voluminous record and of the extended arguments and briefs of counsel, fails to disclose that the judgment is not sustained by the evidence, or that prejudicial error has intervened, but shows that substantial justice has been done.

The judgment is affirmed.

Jones (E. H), P. J., and Gorman, J., concur.


author: Powell, J.

text:
    PRIORITIES UNDER. A DECREE OF DISTRIBUTION.
    Court of Appeals for Licking County.
    J. W. Hornby v. Harry D. Rank et al.
    Decided, October Term, 1915.

      Distribution — Order of Priority of Magistrate’s Judgments — Governed by Section 11661 — Character of Evidence Required to Sustain a Rune Pro Tunc Entry.

    1. Under the.rule that a motion- for an entry nunc pro tunc must be sustained by clear and convincing evidence, a reviewing court is without authority to reverse a judgment overruling such a motion where there is no bill of exceptions embodying the evidence upon which the motion was overruled below.
    2. Judgments rendered by a justice of the peace become alien as of the date, and in the order of the filing of the transcripts where such filing occurs during the term, and a decree of distribution giving them priority in the order of their filing will not be disturbed.

      Smythe & Smythe, for plaintiff in error.

      Flory <& Flory, contra.
   Powell, J.

The order or judgment sought to be reversed in this action is an order overruling a motion filed in the court of common pleas for an entry nunc pro tunc of an order'of distribution, entered in a.partition casein which one George Fessler owned an undivided interest in the real estate sought to be partitioned and against which were numerous liens sufficient to exhaust his interest in such real estate.

The particular question complained of is as to the distribution of $192.83 balance remaining after the specific liens against said real estate had been paid and am allowance made to said Fessler in lieu of a homestead. In addition to the other liens were four judgments entered, before justices of the peace, transcripts of which were taken and filed with the clerk of courts of this county. These four judgments were all filed during the January term of 1911, but at different dates. The total amount of the judgments is largely in excess of the amount to be distributed. It seems that an- entry had been prepared and approved by all of the attorneys, excepting the attorneys for one of the transcript creditors; that such entry was taken by the sheriff, and the order of distribution made by it was entered upon his partition ledger, and distribution of said sum was made by him in accordance therewith; that a year or two afterwards it ivas discovered that this entry had'never been journalized or entered upon the journal of the court of common pleas; whereupon a motion was made for an order to be entered as of the daté when such distribution was made, making distribution of said fund in a different manner than the same had been distributed. This motion is not with the papers in the case, but the transcript shows that such motion was presented and overruled.

The petition in error involves two propositions:

1. A motion for an entry mine pro tune must be sustained by evidence. In fact, our Supreme Court had held that the power of a court to make such entry should be exercised only upon evidence which shows clearly and convincingly that the action sought to be entered by a nunc pro tunc order was in fact taken. Jackson v. Adamson, 56 O. S., 397.

The entry overruling the motion shows that the same ivas submitted upon evidence, and the court found that the facts on which said motion was founded were insufficient and overruled the motion. There was no bill of exceptions taken embodying the testimony offered upon this motion, and it is urged upon the part of defendants in error that the court is without authority to reverse the judgment, upon the ground that the evidence upon which that judgment or order was entered is not before the court. We think this contention is well taken and .that we are without authority to enter a reversal of this case upon the grounds stated in the petition in error.

. It is contended however, that the facts appear upon the record and that they are stated in the briefs of counsel, and the real question between the parties is as to the manner of distribution of said fund. The sum to be distributed was rightly held to be applicable to the payment of the transcript judgments. It is contended by plaintiff in error that the sum should be applied pro rata upon the amount of the several transcript judgments, and it is contended by the defendants in error that the transcripts became liens at the date of their filing because they were filed within term time, and the judgments should be paid in the order in which the transcripts were filed with the clerk; or, in other words, it is contended by plaintiff in error that the rule prescribed by Section 11665 of the General Code should control in making the order of distribution, while the defendants in error claim that the rule prescribed by Section 11661 of the General Code should pro vail.

We are of the opinion that, upon the facts as shown by the admissions of counsel and by their briefs to be undisputed, that Section .11661 furnishes the proper rule by which such distribution should be made, viz: that these judgments became liens at the date of their filing, because they were each filed during term time, and that in an order adjusting priorities of liens against said amount they should be ordered paid in the order of time in which they were filed.

The rule prescribed by Section 11665 relates to liens created by levy of an execution, and the rule as prescribed by Section 11661 relates solely to the attaching of liens by virtue of transcripts of judgments before justices of the peace having been filed by the clerk of courts, and this rule is applicable to the case at bar.

It is the opinion of the court, upon either contention, that there was no error in the order of the court of common pleas in overruling the motion for an order nunc pro tunc, or the claim of plaintiff in error to have said fund distributed pro rata, instead of in- the order of the filing of the different transcripts. The judgment of that court will be affirmed at the costs of the plaintiff in error.

Shields, J., and Houck, J., concur.


text:
    WAIVER OF CONDITIONS BY A UFE INSURANCE COMPANY.
    Circuit Court of Cuyahoga County.
    The New York Life Insurance Company v. Henrietta Kaufman.
    Decided, December 7, 1903.

      Insurance — Condition as to Forfeiture for Non-Payment of Premium May be Waived,.

    An insurance company may waive any of the conditions in its favor in a policy, including a provision that a failure to pay a premium when due shall work a forfeiture of the policy, and such waiver may he proven by proving a known custom of its agent to deliver its policies before receiving the first premium, although the policy contains a provision that only certain officers can extend time of payments.

      Oar field, Ga-r field & Howe, for plaintiff in error.

      J. 11. Sampliner, contra.
    Marvin, J.; Winci-i, J., and Hale, J., concur.
   On the 8th day of January, 1900, Ignatz Kaufman gave his written application to the plaintiff in error for a policy of insurance upon his own life in the sum of $1,000 to be paid at his death to his wife, the defendant in error. A clause in this application reads:

"That the company shall incur no liability under this application until it has been received, approved, the policy issued thereon by the company, at the home office, and the premium has actually been paid to, and accepted by the company or its authorized agent during my lifetime and good health, except when the premium has been paid in advance to an authorized agent of the company, and a binding receipt on the company’s authorized form has been given by such agent, the liability of the company shall be as stated in such binding receipt.”

The agent of the company through whom this application was made was Max Stearn. He was an insurance solicitor acting for this company, soliciting and talcing applications for policies, delivering them to the branch office of the company here, from which they were sent to the home office in New York, and, when accepted, the policies were sent back to the branch office here, and from such branch office were delivered to him and by him delivered to the assured and the premiums collected.

This application was delivered by Stearn to the branch office, forwarded to and accepted by the company, and a policy issued bearing date of January 12th, 1900. This policy was forwarded by the company to the office in Cleveland where the application was made out, and Kaufman and Stearn both lived, on the 14th day of January, 1900, and was given to Stearn for delivery 1o Kaufman. Stearn took the policy to the place of business of Kaufman, found him busy and laid the policy on his desk, calling his attention to it. Nothing was said by either Stearn or Kaufman at this time about the payment of any premium and' nothing was actually paid.

On the 23d day of January, 1900, Kaufman died, not having-paid any part of the premium, and never having been asked to make any payment. Among other provisions of the policy, is the following:

“Only the president, a vice-president, the actuary or the secretary has power in behalf of the company to make or modify this or any contract of insurance or to extend the time for paying the premium, and the company shall.not be bound by any promisé or representation heretofore or hereafter given by any person other than the above.”

The policy contained also the following clause:

“This agreement is made in consideration of the sum of forty-eight dollars and forty-eight cents ($48.48), the receipt of which is hereby acknowledged, and of the payment of thirty-seven dollars and ninety-eight cents ($37.98) on the 8th day of January, 1901, and of the payment of a like sum on the 8th day of January of every year thereafter during the continuance of this policy.”

Upon the death of Kaufman, proper notices were sent and proofs made out and filed, and demand made for payment of the one thousand dollars. This was refused, whereupon the defendant in error brought suit against the company and recovered a judgment for said sum. The purpose of the present proceeding on the part of the insurance company is to obtain a reversal of such judgment.

The claim made on the part of the plaintiff in error is, that the policy never took effect because no premium was ever paid. It relies upon the language of the application hereinbefore quoted. Of course, if the payment of the first premium was a condition precedent to the taking of the insurance, then the policy was not binding, unless such condition was waived. It is said that because of the language of the policy, first hereinbefore quoted, there was clearly no waiver by any person authorized to make such a waiver; the language being that,

Only the president, a vice-president, the actuary, or the secretary has power in behalf of the company # s to extend the time for paying any premium, and the company shall not be bound by any promise or representation heretofore or hereafter given by any person other than the above.”

If there was any waiver here is it evidenced by the fact that Stearn, the agent of the company delivered the policy to Kaufman without asking for any payment; and that Stearn, who had been the agent of the company for more than twenty years, frequently delivered policies in this way without receiving the first premium at the time of delivery. It appears from the evidence that the company had a form of receipt which it took from persons to whom policies were delivered, and who did not pay the premium at the time of such delivery — this receipt showing that the policy was held for examination only. No such receipt was given in this case, nor rvas it asked for. It is clear that Stearn understood that the policy was in force from the time of its delivery, and that he had simply extended credit to Kaufman.

As has already been said, the testimony of Stearn shows that it was common practice for him to deliver policies without the cash premium being actually paid at the time of delivery; that this was known to Mr. Taylor, who was the manager of the company’s business in this city, appears from his own testimony. Tt seems to have been the practice of the- company to make out invoices of policies sent or put into the hands of the several agents of the company, the agent being charged with the premiums. The rules of the company required that upon the delivery of a policy, either a receipt showing that the policy was taken for examination only should be taken, or the premium should be paid in cash. It is clear, however, that his rule was not uniformally enforced, and that such fact was known to Mr. Taylor, the manager of the Cleveland branch of the business. That a provision in the policy to the effect that no waiver can be made by the agent, may itself be waived, is held in numerous cases.

In the case of Knickerbocker Life Insurance Company v. Phoebe A. Norton, 96 U. S., 231, this language is used in the syllabus :

“An insurance company may waive any condition of the policy inserted therein for its benefit.
“As the company may at any time at its option give authority to its agents to make arrangements or to waive forfeitures, it is not bound to act upon declaration of its policy that they have no such authority *' * as denoting the power given by an insurance company to a local agent, evidence is admissible as to its practice in allowing him to extend the time for the payment of premiums and premium notes; and the jury upon such evidence may find whether lie was authorized to make such an extension, and, if so, whether it was in fact made in the case on trial.”

Tn the policy under consideration in that case, this provision appears:

“If the said premium shall not be paid on or before twelve o’clock noon on the day or days above mentioned for the payment thereof, at the office of the company in the city of New York (unless otherwise expressly agreed in 'writing') or to agents, when they produce receipts signed by the president or secretary, or if the principal of, or interest upon said policy shall not be paid at the time and the same shall become due and payable, then, and in every such case, the company shall not be liable to pay the sums assured, or any part thereof.”

By an indorsement on the policy, it was declared that:

“Agents of the company are not authorized to make, alter or abrogate contracts or waive forfeitures.”

The facts in this case were, that the assured, after paying various premiums, failed to'pay in full the premium due on the 20th of April, 1875, but paid in cash, and gave for the balance, to-wit,- $335, his two promissory notes, one due on the 20th of June, and the other on the 20th of July, 1875; each note contained a clause, declaring that if it was not paid at maturity, the policy would be void. The first note was not paid at maturity, but the claim was made that the agent of the company •extended the time for payment of such note. The authority of the agent making such extension was denied, and the language of the policy itself, including the indorsement hereinbefore quoted, was relied upon as conclusively showing that the agent had no such authority. In the opinion, page 240, Mr. Justice Bradley calls attention to the provisions of the policy herein-before quoted, and then says:

“And these terms, had the company so chosen, could have been insisted on. But a party always has the option to waive a condition or stipulation made in his own favor. The company was not bound to insist upon a forfeiture, though incurred, but might waive it.”

Without quoting further from this case, we reeard B "" «n authority in point on the question under consideration.

In the ease of Insurance Company v. Florence Oliver, 22 Texas Civil Appeals, 8, this language is used in the syllabus:

“Where a policy of life insurance provides that it shall not go into effect until the first premium has been paid in cash by 1he assured, and that no agent of the company has powers to waive this requirement, and it is shown that the local agent had frequently and for several years taken notes for the first premium, and that this practice was known to the company’s general agent,-and no disapproval thereof was shown, such waiver will be binding on the company.”

In the ease of Berliner v. The Insurance Company, 121 Cal., 451, this language is .used in the syllabus:

“The general agent of a life insurance company may waive the payment of the first premium and deliver the policy and thereby make it a valid and substituting contract of insurance, notwithstanding the provision in the policy that it shall not take effect until the first premium is paid while the insured is in good health * * the possession of the policy by the insured or by the beneficiary is prima facie evidence of its delivery as a valid and subsisting contract, and the burden of overcoming the prima facie case made by the production of the policy by the plaintiff in an action to enforce it.”

Attention has already been called to the fact that the policy itself acknowledged the receipt by the company of the first premium. This acknowledgment, it is conceded, is not binding-upon the company, but is subject to be explained or denied; and to this extent the company itself denies the language used in the policy.

It would seem a great wrong to permit the company to be relieved from liability, if what was done by the agent was the customary method of transacting this business, and if the policy was delivered by Stearn to Kaufman under such circumstances that Kaufman had the right to understand that a temporary credit was given to him. As a matter of fact, it is probable that he never read the clause in the policy providing that none but the officers named in the clause could make or modify any provision contained therein, and that he never read the receipt for the first premium contained in the policy. But, however, this may be, we hold that it was proper to submit to the jury the question of whether there was a waiver as to the advance payment of the premium. This question was properly submitted to the jury. The charge properly stated the law applicable to the case.

Attention is called to the case of MacDonald v. The Provident Savings and Life Assurance Society, 108 Wis., 213. In this case a note was given for the first premium, and the payment ,of the same extended from time to time. Both in the application and in the policy it is provided that the policy shall not take effect until the first premium is actually paid. There was no acknowledgment in the policy of the receipt of the first payment. The agent had such receipt in his hands at the time he delivered the policy. He had taken a note from the assured when the application was made and when the policy was delivered, the note not being paid thé agent retained the receipt. The assured, gave as a reason why he did not then pay the note, that he did not know that his wife would be satisfied with the policy. On this state of facts it was held that there was no waiver, but this is clearly distinguishable from the facts as above recited from the case-now under consideration.

The case of The Union Central Life Insurance Company v. Hook, 62 Ohio State, 256, differs materially from' the present ease. In that case the policy had been in the hands of the assured for nine years, when, it is claimed, the agent agreed to an alteration in its terms as to the payment of the tenth premium. At the trial, the plaintiff was permitted to introduce evidence as to conversations had with the agent prior to the time the policy was issued. This admission of evidence was held to be erroneous. Evidence was further permitted as to conversations between the agent and the assured nine years after the policy was issued, by which it was sought to change the terms of the policy. The admission of this evidence was held to be erroneous, and the court in its opinon lays stress upon the fact that the policy had been so long in the possession of the assured that he must have known its terms, using this language on page 363:

“Under such circumstances the presumption is conclusive, in the absence of fraud and mistake, that he knew the contents of the instrument.”

On page 265, this language is used in the opinion:

“We do not decide that there might not be estoppel by conduct, notwithstanding such an agreement, but that case does not arise here.”

Neither this nor the case of Travellers’ Insurance Company v. Myers, 62 Ohio State, 259, seem to us to be in conflict with the view of this case taken by the trial court and we hold that no error is shown by the record to have been committed by the trial court, and the judgment is affirmed.


text:
    SETTLEMENT UNDER A USURIOUS BOND EXECUTED BY A BUILDING ASSOCIATION.
    Circuit Court of Cuyahoga County.
    The Indemnity Savings & Loan Company v. Clinton S. Spangler, Anna B. Spangler, John W. Taylor and The Fulton Building Company.

    Decided, November 30, 1903.

      Vendor and Purchaser — Vendor Liable for Usurious Interest in Excess of Amount of Obligation Assumed by Vendee.

    Where a building company which has given a bond- at a usurious rate of interest together with a mortgage upon certain premises to secure its payment, sells the premises so mortgaged'upon a land contract for a definite amount and later, in the performance of that contract, conveys the premises to the purchaser, and in its deed, stipulates that the purchaser assumes and agrees to pay a mortgage of a certain definite amount, such building company is liable to the purchaser for the difference between the amount which the purchaser agreed to pay, together with legal interest, and the amount called for by the usurious bond.

      Dickey, Brewer •<& McGowan, for plaintiff.

      McKisson & Curtis and Weed & Miller, contra.
    Hale, J.; Winch, J., and Marvin, J., concur.

      Affirmed without opinion, Fulton Building Co. v. Spangler, 72 Ohio State, 627.

   This case comes into this court by appeal and was submitted upon the evidence and the admissions of the parties.

On the first day of May, 1896, the Fulton Building Company executed and delivered to the plaintiff, the Indemnity Savings & Loan Company, a bond, of which the following is a copy:

“Cleveland, 0., May 1st, 1896.
“The Fulton Building Co. promises- to pay to The Indemnity Savings & Loan Co., its successors or assigns, one hundred and twenty installments of twenty and 15/100 dollars each, one of which installments to be paid on the first business day of May, 1896, and one on the first business day of each succeeding one hundred and nineteen months pursuant to the constitution and by-laws of said company and the conditions and stipulations in mortgage given to secure this bond.”

This bond was secured by a mortgage of same date, upon said premises, and delivered by the Fulton Company to the Indemnity Company on the 17th day of September, 1896.

The Fulton Company entered into contract with the Spanglers, whereby they agreed to sell and convey to them the premises described in said mortgage, for the consideration of $2,800, payable $200 cash in hand and the balance, $2,600, as follows: To assume and pay a mortgage to the Indemnity Savings & Loan Company of $1,487.79, also a mortgage to John W. Taylor of $684 and interest, and the balance of $428.21 in sums of $27 or more at the option of said grantee, after deducting therefrom the payments and interest stipulated for in the above mortgages, together with interest thereon from this date at the rate of six per centum per annum, to be due and payable semi-annually on the first day of June and December of each year.

On the 21st of January, 1897, the Fulton Company conveyed by warranty deed the premises described in said mortgage and in said contract, to Clinton S. and Anna B. Spangler, in which the consideration expressed as $3,000 but which in fact was upon the consideration named in said written contract. It is stipulated in said deed that said premises are free and clear from all encumbrances whatsoever, except the mortgage to the Indemnity Savings & Loan Co. ($1,487.79) and the mortgage to J. W. Taylor ($684), both of which are assumed by the grantee, and the last half of the taxes of 1896.

Payments were made under this contract by the Spanglers to the Fulton Company directly until after the conveyances in January. Sometime after the conveyance a change was made by which the Spanglers paid directly to the Indemnity Company.

The original loan from the Indemnity Company to the Fulton Company for Avhich the bond and mortgage were given was $1,550, and there Was no other consideration for said bond and mortgage.

The Spanglers have paid to the Indemnity Company more than the $1,487.79 named in the contract and in the deed, with interest at six per centum, and there is no evidence whatever of any other consideration fbr said bond by assessment of dues, or otherwise.

Under the issues and the evidence submitted at the trial sev■eral propositions are to be considered: Between the mortgagor and the mortgagee there is no issue. The maker of the bond and mortgage, the Fulton Company, makes no claim of usury. Its claims are that whether the transaction is usurious or not it must be paid by the Spanglers who, as is claimed, in consideration of the conveyance to them by the Fulton Company assumed and agreed to pay the mortgage according to its terms. That company desires the bond to be paid in full, but insists that the Spanglers shall pay it. The Spanglers, however, insist that the mortgage and bond has been paid- in full; that, legally, only the sum loaned and six per cent, interest can be collected, and that more than that has been paid to the Indemnity Company already. They claim further that if the mortgage must be paid to the Indemnity Company, the maker, the Fulton Company, must pay all that now remains due and relieve the premises conveyed to them from any lien by reason thereof.

So far as appears from the evidence, the bond, in the form above recited, was executed and delivered by the Fulton Company to the Indemnity Company for the sole and only consideration of a loan to it of $1,550 at the date of the bond,' and it is evident as between the original parties to the bond that the transaction was usurious, and had the Fulton Company so answered as between it and the Indemnity Company, the court would be compelled to so hold. But, as no such issue was made, the transaction as between the original parties must be considered and treated as valid in all respects.

Must the bond be paid according to its terms by the Spanglers? The transaction between the Fulton Company and the Spanglers commenced with the making of the land-contract of May 1, 1896. We hold that that contract was competent as explaining the interpretation to be placed upon the deed and as evidence of the true consideration agreed to be paid by the Spanglers to the Fulton Company. The Spanglers agreed to assume and pay a mortgage to the Indemnity Savings & Loan Company of $1,487.79. There was no mortgage of that description to the Indemnity Company. It is said that this sum was the present worth of such mortgage. It was its present worth upon a basis of interest at nine per cent, per annum, but upon a basis of six per cent, per .annum the amount of the mortgage was several hundred dollars in excess of that. The Spanglers agreed to pay to the Fulton Company for said premises $2,800. With the other payments the $1,487.79 exactly equalled the $2,800 and this is all we think that the Spanglers were under any obligation or legally bound to pay.

There is no evidence in the case tending to show that the Spanglers liad any knowledge of the mortgage or of the bond or of its terms at the time of entering into the contract other than as expressed therein. The exact amount to be paid by the Spanglers to the Fulton Company for said premises is definitely fixed by the terms of said contract, together with the terms of payment and to whom such payments were to be made. All these payments the Spanglers have made, together with interest at six per cent., as stipulated in the contract. We are of the opinion that no interpretation should be placed on this contract requiring them to pay more.

If the Fulton Company is desirous that the bond should be paid according to its terms without reference to any claim for usury, without reference to any claim that the contract is usurious, the excess called for by the bond in addition to the amount which the Spanglers stipulated to pay must be paid by it. It has made no contract, in our judgment, with the Spanglers by which they are to pay such excess arising out of the fact that the original contract was usurious.

The claim is made that the controversy arising, or that may arise, between the Fulton Company and the Spanglers, can not be settled in this action. We hold otherwise. If the payment of this bond was not assumed, as we hold it was not, by the Spanglers according to its terms but only a definite amount named in the contract and deed, then there was more due upon the bond, according to its terms, than the Spanglers had agreed to pay, and the Fulton Company, being the maker of'the bond and the mortgage, was a necessary party to the taking of an account upon the bond and mortgage, and being a necessary party, all controversy between it and the Spanglers necessarily could be settled in this one action.

Supposing the mortgage had been given to secure two separate bonds the payment of one of which was assumed by the grantees, the Spanglers; then, manifestly, on a foreclosure of the mortgage, the mortgagee, although having conveyed the premises, would be a necessary party to an accounting and that accounting would necessarily fix definitely the rights between the Fulton Company and the Spanglers.

The remainder due upon this bond according to its terms may be ascertained. Counsel can undoubtedly .agree as to that amount. That amount, as the issues’ now stand, must be held to be a lien upon the premises described in the mortgage, which sum the Fulton Company is ordered to pay within sixty days from the first day of this term of court, in default of which said mortgage may be foreclosed and order of sale issue of said premises. The defendants, the Spanglers, may, however, to save the said premises from sale, pay said sum to the Indemnity Company, and if so paid by them, an execution may issue in their favor against the Fulton Company to collect the sum so paid by them.


text:
    ERROR. PROCEEDINGS FROM THE PROBATE COURT.
    Circuit Court of Cuyahoga County.
    Bertine Robinson Palmer v. Annie J. M. Robinson, as Executrix of the Last Will of William Robinson, Deceased.
    Decided, February 23, 1903.

      Practice — Common Pleas Court Can Not Reverse Probate Court in Error Proceedings where no Bill of Exceptions is Filed — Probate Court Without Power to -Require Deposit of Special Fund with Court.

    1. Where err'or is prosecuted from an order of the probate court to the common pleas, but no bill of exceptions is filed showing upon what evidence the probate court acted, it will be presumed that it acted upon proper evidence, and it is error for the common pleas court to reverse the order of probate court.
    2. The probate court is without power upon the final settlement of an estate to order the deposit of a certain amount of money in the name of the court to await the outcome of an attempt to collect a note from the distributee.

      A. W. Mayer and B. Pearce, for plaintiff in error.
    IF. C. Rogers, contra.
    Marvin, J.; Winch. J., and Hale, concur.
   The defendant in error is the executrix of the last will and testament of William Robinson, deceased, and is also the widow of said deceased.

The plaintiff in error is a daughter of said defendant and, with her, is the only devisee and legatee under the will of said deceased.

Said executrix on the 15th day of October, 1901, filed, in the probate court of this county, the court in which the estate of said deceased was being settled under the will, what purports to be a final account of the administration of the estate of the deceased. On the 1st day of November, 1901, exceptions to this account were filed by the plaintiff in error. In said account the executrix charges herself with having received on account of said estate as follows: “Received from sale of land of deceased, $5,055.00. Received from collection from distributive share, note of Bertine Robinson Dietrich, $511.50.” Among the credits which the executrix claims in said account is one which reads as follows: Paid allowance to widow, judgment and interest, $1,950.”

The exceptions filed to this account, specify as one of the items excepted to, the item of $511.50 charged by the executrix to herself as a collection from distributive share, note of Bertine Robinson Dietrich. It should be said that Bertine Robinsop. Dietrich is the same person as Bertine Robinson Palmer.

Exception is further taken to the credit in the account hereinbefore quoted of “Year’s allowance to widow, judgment and interest, $1,950.” Other items are excepted to.

A hearing was had in the probate court upon this account and the exceptions in reference thereto.

The present defendant in error brought proceedings in error in the court of common pleas to reverse the judgment of the probate court. The probate court sustained the exceptions to the item of $511.50, both as to its being charged to the executrix and being taken from the portion to be distributed to the plaintiff in error. The court of common pleas reversed the probate court in this regard. There was no bill of exceptions filed in the court of common pleas, showing upon what evidence the probate court acted in making its order; and, without some evidence, it is difficult to understand how the court of common pleas determined whether or not there was error in the order made by the probate court. As a part of the transcript filed in the court of common pleas, there is a copy of the will of the deceased. By the terms of that will, certain real estate named is bequeathed to the widow of the deceased for the period of her natural life, and, at her death, said real estate is devised in fee to Bertine Robinson Palmer.

It is said in argument that the money with which the executrix charged herself as having received from the sale of lands, is the avails of the sale of this real estate thus bequeathed and devised.. .Without some evidence on the subject we do not know how. that fact is found, though' it is probably true, as there is a credit taken by the executrix for the sum of $1,085.09 as the value of her life-estate in the real estate sold. No exception was taken to this, and we presume that there was some evidence before the probate court which disclosed some arrangement between the plaintiff in error and the defendant in error by which the value of this life estate was ascertained.

Looking to the will alone, we are unable to see how the plaintiff in error was entitled to any distribution during, the lifetime of the widow — and the court of common pleas bad only this will before it as evidence.

Attention is called to this because unless there is some distributive portion to go to the plaintiff in error, we fail to see how she could have been prejudiced by a charge being made by-the executrix of this $511.50; but the common pleas court found that there was error in this behalf. Since neither the court of common pléas nor this court can know upon what evidence the probate court acted in making such order, the presumption is that there was some evidence introduced justifying the order made by the probate court, and it was, therefore, error for the court of common pleas to reverse such order of the probate court.

As to the item of $1,950 claimed for the year’s support and interest, we are equally in the dark as to the evidence upon which the probate court acted.

We learn from the transcript that a certain amount was allowed by the appraisers to the widow for such year’s support; that upon exceptions to the allowance made by the appraisers, the probate court fixed the allowance for the widow, at $1,400. Whether such allowance should draw interest up to the time when it was paid would depend on facts which were not disclosed to the court of common pleas by the record and are, therefore, not disclosed to us; and it must therefore, be presumed that such a state of facts was disclosed before the probate court as justified the order made by that court which was that the. widow should be allowed interest on said $1,400 for the period of two years and no more. Certainly a state of facts may exist which' would, justify this order.

If the widow, being herself executrix, was negligent in the performance of her duties, either in converting real estate into money or in any way whereby she was responsible for the nonpayment of this sum at a time earlier than it was paid, she should not profit by it by having interest upon it. If for two years of the time that elapsed between the time when the amount of this allowance was fixed by the probate court and the time when by proper diligence on her part it would have been paid; or, in any event, if two years elapsed after the expiration of one year from the giving of her bond during which two years there was no money to pay this allowance, and such want of money was, in no way, chargeable to her negligence, and then it would seem proper that an allowance should be made for two years, and if the rest of the time that elapsed before the paj^ment was due to negligence on her part, it would certainly .be an injustice to this estate to allow her interest for that delay in payment caused by her own negligent administration. In short, there are facts which may have existed, entirely justifying the order of the probate court. Those facts not being brought before the court of common pleas, that court erred in' reversing the probate court in that regard.

A further order, however, was made by the probate court that “the sum of $350 out of any distributive share of said Palmer be, and is ordered to be, reserved and to remain in the registry of this probate court undistributed, subject to the order of the probate court, and to be deposited in the name of the probate judge, on interest, and to abide any recovery against said Palmer on said claim or note or to be ordered distributed to her with interest at the end of one year if no account is taken thereon or recovery had.”

This order was reversed by the court of common pleas and, we think, properly so. We know of no authority of law by which the probate court had any jurisdiction to order such deposit of money to be made.

It is the order of this court, therefore, that the judgment of the court of common pleas be affirmed in so far as it reverses the judgment of the probate court as to the deposit of this $350. In all other respects the judgment of the court of common pleas is reversed and that of the probate court affirmed.


text:
    CHANGE OF BENEFICIARY IN MUTUAL BENEFIT SOCIETY.
    Circuit Court of Cuyahoga County.
    Eva K. Dauber v. Elizabeth Dauber et al.
    Decided, December 15, 1902.

      Mutual Benefit Societies — Issuing a Certificate Naming Beneficiary of Class Not Mentioned in Constitution, Talid — Member May Change Beneficiary.

    1. Where the constitution of a fraternal order states that the object of the endowment fund of the order is for the better and sufficient support of the widows and orphans of its members, but the laws of the state under which it is organized permit the payment of benefits to the mother of a deceased member,, as well as to the widow and orphans, the fact that the order has issued to a member a certificate in which his mother is made beneficiary, after he had surrendered one in which his wife was named as beneficiary, will be construed as an exercise on the part of the order of the power granted by the state and as a waiver of the constitutional provision, and in case of the member’s death the mother will be entitled to the insurance.
    2. The naming of one as a beneficiary gives him no vested interest in the insurance fund of a fraternal order, as the right is reserved to the member to change his beneficiary at any time.

      Kerruish & Kerruish, for plaintiff in error.

      Thompson, Solders & Tilden, contra.
    Caldwell, J.; Hale, J., and Marvin, concur.
   Tbe plaintiff, Elizabeth Dauber, brought this action in the court of common pleas of this county against the Independent Order of Foresters for the sum of one thousand dollars, the amount of a certificate of insurance issued upon the life of George -Dauber, her son. The certificate she sets up was issued in 1899, and in it she was named as the beneficiary. The defendant brought the money into court and interpleaded Eva K. Dauber, the plaintiff in error, with Eliza Dauber, the plaintiff below, whereupon Eva K. Dauber came in to the ease and claimed that when George Dauber first became a member of the beneficial order, lie made her the beneficiary in his certificate and she claimed that by reason of that fact and by reason of the fact that the constitution of the order made the fund payable to her, and by reason of other facts set up in her answer, she is entitled to the money in question.

The administrator of the estate of George Dauber, Willis White, claims that by reason of a change in the constitution of the order, made in January, 1890, after the certificate on which the action was commenced, was obtained, he is entitled to receive the funds.

Elizabeth Dauber obtained a judgment for this fund in the court below, and Eva K. Dauber prosecuted error in this court to reverse that judgment.

It appears as a fact in this case, that the first certificate that George Dauber obtained when he became a member of the order, ivas obtained, about 1894, and that Eva K. Dauber was named as the beneficiary in that certificate, thereafter a new certificate was obtained, in which Eva and'the mother Elizabeth were each named as beneficiaries, each to receive one-half, and soon after that certificate was obtained in May, 1899, it was surrendered and a new one taken in which, the mother Elizabeth Dauber is named as the beneficiary.

The judgment of the court below was not only against Eva K. Dauber, but also against Willis E. White,, administrator of the estate.

The administrator has filed no petition nor cross-petition in this court, and he abides by the judgment rendered in the common pleas court, so that the question of whether the money should be paid to him as administrador, is not raised in this hearing, unless it is raised in the petition of the plaintiffs in error. It appears from an examination of the petition, that that question is not raised, and hence is not before the court.

Article II of the Constitution states that “the object of this endowment fund shall be for the creation and maintaining of a fund for the better and sufficient support of the widows and orphans in the case of the death of a brother belonging to a court existing in the city of Cleveland.”

The first claim made by the plaintiff in error is, that the constitution of the order limits the endowment fund to the support of widows and orphans and hence can not be made payable to the mother of the deceased, and that the certificate that was issued, making the mother of the deceased the beneficiary, is for that reason of no effect, and that nothing being accomplished by it and nothing in favor of the mother being accomplished by the one in which the wife and mother were made jointly beneficiaries, the original certificate, making the plaintiff in error the beneficiary, is in full force and for this reason she is entitled to the fund in question.

The statutes of this state, Section 3631, and especially subdivision 11 thereunder, point out who may be beneficiaries under a certificate of this character, and it is broad enough to include the mother; and the order being organized under this statute as defining its charter powers, had authority to make this certificate in favor of the mother.

Tf the constitution is to be read literally, as it is printed, instead of simply declaring a general purpose of the organization and made to read as though this particular purpose of benefit-ting widows and orphans, is intended to exclude all others who might be benefited under the state, then under this provision it might be said that he certificate would not be valid. But we think that the purpose of the provision in the constitution was simply to name a general purpose of the organization without undertaking to give it any definite limitation to the terms used, and, by issuing the certificate, making it payable to the mother, the order construed its meaning of this article. Then, even if the provision of the constitution is to be taken as literal and definite, it is a provision that could be waived by the order, and, notwithstanding that only widows and orphans are named, the order might make the certificate payable to any one designated in the statute; and, designating one within the statute but not within such literal meaning of the constitution, would be a waiver of the constitutional provision, and neither the plaintiff in error nor the order could object to the payment of the fund to the mother after such waiyer had taken place

¡.Tbe next question raised by the plaintiff in error as to why thej judgment should be reversed, is, that she had under the first certificate issued wherein she was named a beneficiary, such a vested interest in the fund that no change could thereafter be made without her consent. We think the authorities generally show, not only in this state but in other states, that the insurance is founded upon a contract wherein the assured reserves to' himself the right at any time to change the beneficiary, and for that' reason the beneficiary named in a certificate, until the death of the brother, takes nothing but a contingent interest in the fund, liable to be defeated at any time by the assured. This matter has recently undergone extensive discussion in the seventh judicial circuit court, wherein Judge Cook delivers the majority opinion of the court, and Judge Laubie gives a dissenting opinion. Many of the cases found in the boobs bearing upon this question, are cited in those opinions found in the Weekly Law Bulletin of October 27, 1902, page 618.

The opinion of this court approves the opinion of the majority in that case. The matter is so clearly discussed in those opinions that we could add nothing to them except to multiply the eases that bear upon the questions, involved, which would be of no benefit to this case.

It is the judgment of the court that there is no error in the record before us, and the judgment of the court of common pleas is affirmed.


text:
    EXTENT OF JURISDICTION UNDER. CHANGE OF VENUE.
    Circuit Court of Cuyahoga County.
    Floy Mills v. Robert Mills.
    Decided, November 10, 1902.

      Jurisdiction — Effect of Change of Tenue on Jurisdiction as to Existing Orders.

    By the transfer of a case from the court of common pleas of one county to the court of common pleas of another county, the court in the county to which the case is transferred acquires exclusive jurisdiction of all matters pertaining to the case, including ,the enforcement of the orders already made in the case, as well as the granting of new orders and final judgment.

      Walter C. Ong, for plaintiff in error.

      L. Z. Tanney, contra.
    Hale, J.; Caldwell, J., and Marvin, J., concur.
   An action ivas pending in the court of common pleas of this county by plaintiff against defendant for a divorce. Alimony pendente lite had been allowed and the defendant ordered to pay a certain amount to the plaintiff during the pendency of the action. After this order Avas made, the ease was transferred by order of the court, under statute, to Medina county for trial and determination. Up to the time that the order was made transferring the case to Medina county, all instalments of alimony falling due had been paid; there was no default on the part of the defendant in payment of alimony at the time of the transfer. After the transfer, proceedings in contempt against the defendant AA-ere commenced in the court of common pleas of this county. The question is, AA'hether actions for contempt can be maintained in this county after the transfer, for a violation of an order on the part of the defendant in the payment of alimony.

Very little light or aid can be gathered from any decisions that Ave have been able to find, or which have been cited to us. But, after consideration such as we have been able to give in the case, we hold that, after the transfer by the court of common pleas of this county to the Court of Common Pleas of Medina County, exclusive jurisdiction of'all matters pertaining to the case, as well the enforcement of the orders made as the granting of new orders and judgment, was transferred to the Court of Common Pleas of Medina County. That court had jurisdiction to modify, abrogate, or enforce the order for alimony pendente lite then' existing. Disobedience of the order which existed at the time of the transfer, after the transfer was made, was a contempt of the court having the jurisdiction to enforce the order, that order virtually becomes the order of the court to which the case is transferred and that court has full jurisdiction over existing orders and over the case, to make further orders.

This, of course, does not deal with the phase of the case as if there had been a default to obey the order of the Court of Common Pleas of Cuyahoga County prior to the transfer. Nor do we undertake to controvert the proposition argued by counsel that proceedings in contempt are quasi criminal and, to an extent at least, independent of the case in which the order was made for the disobedience of which the party is in contempt.

This was the holding of the court of common pleas, and the result is the affirmance of that judgment.


text:
    LIABILITY FOR. INJURY IN ELEVATOR OF EMPLOYEE OF TENANT.
    Circuit Court of Cuyahoga County.
    The Cobb-Bradley Realty Company v. Fannie Hare.
    Decided, February, 1903.

      Passenger Elevators — Liability of Owner Not Increased by Employment or Minor as Operator.

    The liability of the owners of an office building to tenants in the use of its passenger elevators is that of a carrier of passengers, and such liability is not altered by the employment of a minor as an operator; hence, in an action by a tenant for personal injuries resulting from the negligent operation of an elevator, an allegation that the laws of the state make it unlawful to employ a minor, such as the one operating the elevator at the time of the accident, should, on motion, be stricken from the petition.
    O. C. Finney, for plaintiff in error.

      Olds Willet, contra.
    Hale, J.; Winch, J.,and Marvin, J., concur.
   The plaintiff in error was, at the time of the transaction complained of, the owner of a building known as “'The Birmingham” located on Euclid avenue in the city of Cleveland, and maintained and operated therein for the accommodation of its tenants an electric elevator.

On the 22d of April, 1899, the defendant in error was employed by a tenant in that building and entered the elevator for the purpose of riding from the sixth to the first floor. She alleges in her petition that she was injured while thus in the elevator, by the carelessness and negligence of the employees of the plaintiff in error in operating said elevator.

She alleges that said elevator was negligently run by defendant’s employee to the basement of the building and by the first floor and entrance to said building, where plaintiff desired to leave said elevator, so that the elevator struck the bottom of the shaft with such force as to severely injure the plaintiff’s spine and back, and, in consequence of such injury, plaintiff was confined to her bed for fourteen weeks and still is unable to sit up for over two or three hours at a time and is permanently injured and will suffer from such injuries to her back and pelvic organs the remainder of her life.

She then describes more specifically the injuries of which she complains, and adds:
“The plaintiff says that the defendant was further guilty of negligence in the premises in that it employed and permitted the operator of said elevator to operate the same, knowing that many persons would daily ride up and down in said elevator many times, said block or building containing many tenants of defendant many of whom employed a la!rge number of persons at dressmaking and other pursuits; and knowing that said operator, John Neely, a boy about fifteen years of age, was inexperienced and incompetent to operate an electric elevator such as said elevator was, or by the exercise of ordinary care could have known him to be inexperienced and incompetent, although plaintiff did not know it.”

She further alleges that the plaintiff in error was negligent in failing to keep the elevator in proper repair, and to provide the same with automatic stops or other devices in general use on elevators of that kind in Cleveland and elsewhere, such as would prevent said elevator running down below the first floor of said building.

The petition'then alleges:

‘ ‘ Plaintiff says that the defendant was further guilty of negligence in that it employed and permitted said operator, a boy of fifteen years of age, and less than twenty-one years of age, to operate said electric elevator in the state of Ohio, said defendant being in said state, contrary to the laws of Ohio and contrary to Section 2575-91, Sub-Section 317i, of the Revised Statutes' of Ohio, which is as follows: ‘ No person under twenty-one years of age shall be employed in running or operating any electric, steam or hydraulic passenger or freight elevators, and it shall be unlawful for any firm, company or person in the state of Ohio owning, operating, or having in charge any such passenger or freight elevator or elevators to employ a person under twenty-one years of age to run or operate any such elevator.’ ”

The answer denies substantially all the allegations of the petition and for an affirmative defense alleges that the building and the elevator at the time of this transaction were under the control and management of an independent contractor who alone was responsible for any negligence growing out of this transaction. Upon this proposition, however, under the charge of the court, the jury properly found in favor of the defendant in error.

On the trial, testimony was given by the defendant in error tending to show the claim made by her, and by the plaintiff in error tending to rebut any such claim.

Before answering the petition, the plaintiff in error filed a motion asking that various allegation of the petition be stricken from the petition, and- among others, the clause pleading the statute above quoted, which motion was overruled and an exception noted.

At the close of the evidence, upon the effect of this statute the court charged the jury as follows:

“It is claimed that the defendant company was negligent in that it emploj^ed a boy of the age of fifteen years and less than twenty-one years of age, to operate the electric elevator in contravention of the laws of the state.”

He then read to the útv the statute above quoted and adds:

“The violation of this statute by the defendant, if you shall find that it was violated, is not in and of itself such negligence as will render the defendant company liable. It is simply the expression of the state, through its legislative body, of its policy with respect to the operation of elevators, and is evidence to be considered by you in connection with all the other evidence in the ease. The mere fact of employing a boy under the age mentioned in the statute to which I have just referred, would not constitute negligence in and of itself.”

To this charge an exception was noted.

Tn both the refusal to strike out from the petition, the statute pleaded and in this charge given to the jury, there was error.

The duty of the plaintiff in error to the defendant in error in the operation of the elevator was the same as that of a common carrier to a passenger — the highest degree of care must be the measure of that duty. A failure in its performance would be negligence. The fact that the employment of a minor was prohibited by statute neither added to, nor detracted from such duty. If the duty was fully performed, there was no liability resting upon the plaintiff in error, whether the operation of the elevator was by a minor or an adult. Such liability arose only from the non-performance of such duty. We conceive it competent, however, to show who was operating the elevator at the time of the accident, his age, competency and the like, but the existence of the statute should have no weight in determining the liability of the plaintiff in error for negligence in the operation of the elevator.

We are dealing with the relation of the common carrier to a passenger and the responsibility of the plaintiff in error therein must be determined by the manner in which it performed its duty growing out of that relation.

The case of Jacobs v. The Fuller & Hutsinpiller Co., 67 O. S., 70, sustains, we think, this proposition. That case, it is true, involved different facts. The relation of master and servant was therein considered, but certainly no stronger reasons existed for the conclusion of the consideration of the statute in that case than those existing for the exclusion of the statute in this case.

Again, on review of the evidence contained in the bill of exceptions, we are of the opinion that the damages awarded to the defendant in error were grossly excessive and for that reason the motion for a new trial should have been granted and, in not so ruling, there was error.

The evidence shows clearly that the disabilities under which the defendant in error now claims to be suffering, are not wholly due to the injuries which she received in that transaction.

We find no other prejudicial error apparent upon this record.

The judgment of the court of common pleas is reversed and the cause remanded for a new trial.


text:
    constructions agreement to sell land.
    Circuit Court of Cuyahoga County.
    Joseph Kundtz v. Van Deboe Haeger & Co. and James W. Evenden, Trustee.

    Decided, December 22, 1902.

      Land Contracts — When Two Contracts for the Sale of One Parcel of Property are Regarded as One.

    When a real estate company sells lots upon an installment plan and gives the purchaser a land contract signed by a trustee in whose name the title appears, in which the trustee agrees to convey upon the receipt of the final payment; and also gives the purchaser another contract signed by the company in which it agrees- to convey the property to the beneficiary of the purchaser in case of the death of the purchaser before final payment has been made — both of the contracts are to be construed together as one contract, and the real estate company, by accepting payments after they were past due, waived any forfeiture provided for in the contract signed by the trustee.

      Q. II. Schaibley, for plaintiff.

      Smith & Taft, contra.
    Caldwell, J.; Hale, Jv and Marvin, J., concur.

       Affirmed without opinion, Van De Boe, Haeger & Co. et al v. Kundte, 70 Ohio State, 485.

   Tlie plaintiff, Joseph Kundtz, brought this action for specific performance. The petition sets out that Van Deboe, Haeger & Company was the owner of a lot in an allotment; that James W. Evenden is trustee, held the title to the property, which lay in .he hamlet of Rockport, county of Cuyahoga and state of Ohio, and was designated as lot 112 on a certain plat of lots called Lenox Park; that they sold said lot to Agnes Kundtz, trustee, on the installment plan, payable weekly, until the full amount was paid, and that, when the amount was paid, she was to have a deed for the same. Agnes Kundtz was buying said lot as trustee for the plaintiff, Joseph Kundtz, and he claims in his petition that there was an agreement on the part of Van Deboe, Haeger & Company that if she died before the payments were made in full, a deed would be given to the plaintiff for the lot without any further payment, and sets up that Agnes Kundtz died and that the plaintiff made proper proof of her death to the defendant and demanded a conveyance of the property and that the defendant refused to convey the same. The answer claims that Evenden was trustee, holding the lands, not for his co-defendant but for other parties, and that he had placed the lands in the hands of his co-defendants to sell and dispose of the same. And the evidence shows that in undertaking to dispose of these lands and other lots thus turned over to them for sale they adopted the plan of selling the lots and giving therefor a land-contract not differing in any way from the ordinary land-contract which was signed by James "W. Evenden, trustee, and, at the same time, Van DeBoe, Haeger & Company would enter into a contract with the purchaser of the lot, that, if she died before payments were made in full, the lot would be deeded to the beneficiary named by her without any further payment, although the same had not been paid for in full at the lime of her death.

The plaintiff claims that these two contracts constitute one contract; that they together form part of the consideration that induced the purchase of the lot, and, being construed together as one contract, she claims that the defense set up is not good. The contract signed by Van DeBoe, Haeger & Company for the lot is as follows:

“This agreement made this 15th day of February, 1897, by and between Van DeBoe, Haeger & Company of the city of Cleveland, Ohio, of the first part, and Agnes Kundtz, trustee, of Cleveland, Ohio, of the second part:
“Whereas, the parties of the first part have advertised to deliver over free from further payments, a deed of property purchased from them at Lenox Park, upon certain conditions in the ease of the death of the grantee of said property, and,
“Whereas, the party of the second part, being the purchaser of the lot, No. 112, in Lenox Park, wishes to avail herself of said offer, now, therefore, it is hereby agreed that in ease the party of the second part shall die while her agreement for the purchase of the above-mentioned lot is in force and before said premises are conveyed to her by deed, said party of the first part shall, under certain conditions hereinafter mentioned, have no claim for the payment of further installments on account of said premises, but shall convey the same without further consideration, at the special direction of party of second part, to Joseph Kundtz.”

It is further provided and agreed that the conditions upon which said deed shall be given her, is as follows:

“1st. That said party of second part is the original purchaser, and not a transferee. 2d. That the payments on said lot shall not, at any time, be more than two weeks in arrears. 3d. That satisfactory proof of death of said party of second part shall be furnished. 4th. That said party of second part shall not have come to her death by reason of suicide, sane or insane. 5th. That the party of second part is in good health at the time of purchase.
“No alteration in the terms of this agreement will be valid unless signed by Van DeBoe, Haeger & Company and Agnes Kundtz, trustee.”

We are satisfied that these two contracts were held out as an inducement to the party purchasing the lot; that they both entered as a consideration for the payment of the money paid upon the lot. The fact that the lot was owned by the trustee, James W. Evenden, can make no difference, for the evidence shows that he had turned over to his co-defendant the entire marketing of the lots, which they proceeded to do upon the plan set out, and he has, in a sense that will bind him, made himself a party to the method adopted by his agents. This makes the two contracts but one contract in fact; they become parts of one and the same contract. Hence, the defense set up herein, 'which is, that payments were not made promptly as rquired by that part of the contract signed by Van DeBoe, Haeger & Company, will vitiate the second part of the contract, although they were received upon the first contract, clearly creating a waiver on behalf of the trustee who made the land-contract, by reason of the money being received after becoming due; and the claim is that the same parties, Van DeBoe, Haeger & Company, held both of these contracts and they now make claim that although payments were made and received on the land-contract after they were due, yet that can not be regarded as a compliance or waiver of the conditions of the second contract; in other words, Van DeBoe, Ilaeger & Company could take the money after due and apply it upon the land-contract and yet, by so taking it, they did not make a waiver of the insurance contract. The only way to make this seem plausible to the court is, as was contended by defendant, that these contracts are entirely separate and distinct, and that whatever was done under one, either by way of payments or waiver, could not, in any manner, affect the other. We can not subscribe to that doctrine.

The real facts of the case are that while the land-contract was signed by James W. Evenden, trustee, yet it is with the other defendant, and really their contract, until they have made the proper collections and turned them over to the trustee in lieu of the land, for the whole thing looks to their securing not only the contract, but also the deed, when the contract is paid up in full. So Evenden having signed the contract, amounts to nothing more than binding him to give the deed. The whole transaction was really in the hands of the other defendant and hence while, in form, the contracts appear to be made by different parties, yet, in substance and in fact, so far as the interest of the parties is concerned, they are both made by the same persons. Upon the death of the purchaser, Yan DeBoe, Haeger & Company certainly did not expect to pay up the balance of the purchase-price of the lot; if they did, the whole transaction would be merely a gamble.

We think the plaintiff has shown his right to have his deed given to him without further consideration, and the prayer of his petition is granted.